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NOTE Some Images Have Been Removed from the Electronic Version The Frozen Continent: The Fall and Rise of Territory in Australian Constitutional Thought 1815-2003 Author Brown, A. J. (Alexander J.) Published 2003 Thesis Type Thesis (PhD Doctorate) School Key Centre for Ethics, Law, Justice and Governance DOI https://doi.org/10.25904/1912/3408 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/365665 Griffith Research Online https://research-repository.griffith.edu.au NOTE Some images have been removed from the electronic version of this thesis for copyright reasons. There is also slightly different page formatting to the original print thesis, but the content is exactly the same. The Frozen Continent The fall and rise of territory in Australian constitutional thought 1815-2003 A. J. Brown BA LLB (UNSW) GradDipLegPrac (ANU) Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy. Key Centre for Ethics Law Justice & Governance Griffith University June 2003 [This post-examination version: November 2003] The Frozen Continent The fall and rise of territory in Australian constitutional thought 1815-2003 A. J. Brown PhD Thesis Key Centre for Ethics Law Justice & Governance Griffith University, June 2003 Through the late 20th century, global society experienced waves of unprecedented political and institutional change, but Australia came to be identified as "constitutionally speaking… the frozen continent", unable or unprepared to comprehensively modernise its own fundamental laws (Sawer 1967). This thesis opens up a subject basic to, but largely unexplored in debate about constitutional change: the territorial foundations of Australian constitutional thought. Our conventional conclusions about territory are first, that Australia's federal system has settled around a 'natural' and presumably final territorial structure; and second, that this is because any federal system such as possessed by Australia since 1901 is more decentralised and therefore more suitable than any 'unitary' one. With federalism coming back into vogue internationally, we have no reason to believe our present structure is not already the best. Reviewing the concepts of territory underpinning colonial and federal political thought from 1815 to the present day, this thesis presents a new territorial story revealing both these conclusions to be flawed. For most of its history, Australian political experience has been based around a richer, more complex and still evolving range of territorial ideas. Federalism is fundamental to our political values, but Australians have known more types of federalism, emerging differently in time and place, than we customarily admit. Unitary values have supplied important symbols of centralisation, but for most of our history have also sought to supply far less centralised models of political institutions than those of our current federal experience. Since the 1930s, in addition to underutilising both federal and unitary lines of imported constitutional theory, Australian politics has underestimated the extent to which our institutional treatment of territory has itself become unique. Despite its recent fall from constitutional discourse, territory is also again on the rise. While political debate has been poorly placed to see it, Australia has experienced a recent resurgence in ideas about territorial reform, offering the promise of a better understanding of the full complexity of our constitutional theory and a new 'unfreezing' of the assumption that territorially, Australia will never change. This thesis seeks to inform these vital new debates. The Frozen Continent The fall and rise of territory in Australian constitutional thought 1815-2003 A. J. Brown BA LLB (UNSW) GradDipLegPrac (ANU) Submitted in fulfilment of the requirements of the degree of Doctor of Philosophy. Key Centre for Ethics Law Justice & Governance Griffith University June 2003 Contents Chapter One - Introduction: 'unsettling' Australian territory 1 Chapter Two - Union or unity? Anglo-Australian territorial theory to the 1840s 33 Chapter Three - Anti-federal, anti-nation, anti-theory: 1840s-1880s 65 Chapter Four - Imaginary lines: visions of union 1880s-1890s 99 Chapter Five - Well versed or blind copy? Territory and the Constitution 1891-1900 133 Chapter Six - Territory's golden age: 1901-1930s 165 Chapter Seven - The rise of double centralism: 1930s-1970s 199 Chapter Eight - Think globally, struggle locally: the return of regionalism 1970s-2003 229 Chapter Nine - Conclusions: the fall and rise of territory in constitutional thought 263 Bibliography 285 i Detailed Contents Figures and tables v Acknowledgements vi Candidate's statement vii Chapter One - Introduction: 'unsettling' Australian territory 1 1.1. The thesis 1 1.2. The ‘settled’ view of Australian territory 3 The incomplete story of Australian anti-federalism 8 Federalism on federalism: the quest for new states and colonies 12 The original colonial territorial logic 16 1.3. The return of territory to Australian constitutionalism 19 Theoretical approaches 19 The thesis stated 23 Structure of the thesis 27 Chapter Two - Union or unity? Anglo-Australian territorial theory to the 1840s 33 2.1. Introduction 33 2.2. Towards a federal British dominion… or not (1815-1841) 35 Van Diemen’s Land and civilian government (1823-1825) 35 Swan River and the Tordesillas Lines (1494-1829) 42 Land of the inland sea: South Australia (1829-1836) 46 The first Port Phillip District (1834-1841) 48 2.3. Towards a unified British dominion… or not (1836-1847) 51 Sydney versus Port Phillip 52 The Canada problem (1836-1840) 55 The Stephen unification model (1836-1847) 57 Reevaluating the Stephen model 59 2.4. Conclusions: so rich, yet so poor 62 Chapter Three - Anti-federal, anti-nation, anti-theory: 1840s-1880s 65 3.1. Introduction 65 3.2. Great expectations: colonial subdivision 1846-1852 67 North Australia I (1846-1848) 67 North Australia II (1849-1851) 71 The three way conflict 73 3.3. Homegrown theory: territory and Australian constitution-making 76 British Constitutions: a new de facto centralised tradition 76 ii Unity via union: the ‘limited' or 'classic’ Sydney view of federalism 79 Queensland and new colonies 82 3.4. Destiny denied: Australian separation debates 1850s-1890s 84 Institutional resistance to new colonies 88 Departure of the boundary authority… or not 91 3.5. Conclusions 96 Chapter Four - Imaginary lines: visions of union 1880s-1890s 99 4.1. Introduction 99 4.2. Minimalism 1890s-style: 'limited' federal union becomes real 101 Federation as continued de facto centralism 104 Federation and the language of unification 107 Economic as opposed to political decentralisation 110 4.3. British unification: decentralist unitary values on the rise 113 The rebirth of decentralised unitary ideas 115 Anti-overgovernment: the value of economy 117 Unity as a Victorian political value 117 4.4. Decentralist federalism: the return of the Franklin plan 119 Parkes, politics and federal destiny 121 Drafting assumptions: Chapter VI of the Constitution 123 Australia votes 126 4.5. Conclusions 131 Chapter Five - Well versed or blind copy? Territory and the Constitution 1891-1900 133 5.1. Introduction 133 5.2. The New State provisions: no blind copying 135 The 1891 Sydney Convention 135 The 1897-98 Federal Convention 141 1899 Premiers’ Conference 144 5.3. From America to Australia: Chapter VI in comparative context 146 American territorial change 147 Well versed, but not well enough: Australian blindness 152 Imperial powers of territorial change 158 Lessons for Australian pragmatism 160 5.4. Conclusions 162 Chapter Six - Territory's golden age: 1901-1930s 165 6.1. Introduction 165 iii 6.2. Cracks in the brick wall: new state advocacy 1901-1930s 166 The federal government and 'outside' territory 167 Subdivision of existing states 171 New staters and constitutional reform 174 So near, yet so far 177 6.3. Australian destiny revived: unification 1901-1929 178 Unification and political decentralisation 179 Depression and polarisation 184 6.4. Country Party new states versus Labor unification 187 Labor and unification 189 Theory abandoned 193 6.5. Conclusions: the fall of territory? 196 Chapter Seven - The rise of double centralism: 1930s-1970s 199 7.1. Introduction 199 7.2. New states: a tradition abandoned 201 The Constitution and federal power 201 State consent: Queensland 1948-1959, NSW 1949-1967 205 Economics versus political decentralisation 211 7.3. 'Double centralism': the regional surrogate and de facto unification 214 The regional surrogate: economic decentralisation 215 Cooperative federalism as 'cooperative centralism' 222 7.4. Conclusions 227 Chapter Eight - Think globally, struggle locally: the return of regionalism 1970s-2003 229 8.1. Introduction 229 8.2. Australian territorial theory: the state of the traditions 230 The Whitlam legacy: double centralism & regional policy 232 Decentralist federalism: the revival commences 237 Unitary principle: challenging the divide 242 New territory: from land rights to 'place' rights 247 8.3. Leading from behind: territory and constitutional discourse 251 Territory and the politics of constitutional change 252 Territory and constitutional scholarship 256 8.4. Conclusion 260 Chapter Nine - Conclusions: the fall and rise of territory in constitutional thought 263 iv 9.1. Introduction 263 9.2. The boundaries of a replenished constitutional orthodoxy 265 The original colonial territorial logic 265 Federalism on federalism: the quest for new
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