The Senate has the entire transcripts of the Australasian Conventions which took place prior to Federation. This was where most of the aspects of what form of government Australia would take were trashed out. There were competing interests, philosophical and provincial. Alfred Deakin was one of the most influential of the participants, and ultimately got his way in most things. There is an interesting exchange between Deakin and Baker on responsible government and constitutions.

From the transcript;

Deakin: If you are about to make this change you should go further. You should either not make this change, which is out of harmony with our existing institutions, and cannot be brought into harmony with a constitution in which there is responsible government rooted in a popular chamber; but if you do take this step, you should at once, and boldly, adopt bodily those foreign constitutions to which you have gone for precedents.

If you want the Swiss Constitution, take the Swiss Constitution; if you want the American Constitution, take the American Constitution; but do not attempt to mix them with the British Constitution.

To Deakin responsible government embodied that nearly all legitimacy for sovereignty and action came from the lower house where the executive and legislative mingled. Deakin seems to believe that lower house being a People's Chamber , and having popular support, is the only place that rights and the level of allowed liberalism can be suitably determined. This is a very paternal and elitist view.

Baker replies to Deakin asking why not an Australian constitution?;

Baker: Why cannot we have an Australian constitution?

Deakin: I have not the slightest objection to having an Australian constitution; but an Australian constitution that was begun by setting aside the political experience of the civilised world would have a poor chance of doing any good.

Any constitution that is built up must be built on the experience gained of other constitutions in other parts of the world.

Barton: To what experience of federal constitutions is the hon. member appealing?

Deakin: I am appealing in the first instance to the fact that there are radical distinctions between the American Constitution and those of these colonies.

The radical differences are, that in America the executive is separated from the legislature; that the two chambers and the executive work all three independently; that, although the whole three are often, if not at war, entirely at issue, there is provision for carrying on the government notwithstanding.

There is no such provision in the constitution which is sketched here. Here your responsible government is to be made responsible to the representative chamber.

Deakin is unable to see Australians as being able to innovate the constitutional or political system beyond what already exists. This is probably why our constitution is pretty crappy by world standards - missing out on even the most basic innovations of the enlightenment. Peter Botsman devoted a book to its shortcomings .

In Deakin's vision of responsible government we see where it comes into conflict with Republicanism. To republican philosophy, rights are inalienable and outside the domain of the legislative and executive authority. Deakin makes no such distinction, claiming that the responsible nature of the executive cabinet and the fear of elections are enough to ensure that rights are not trampled.

Australia has a pretty poor history in this regard, and the constitutional structure chosen at federation carries some of the blame.

Deakin continues;

Baker: We have not agreed to responsible government yet!

Deakin: It is in this sketch; and if hon. members depart from the sketch let them do so on rational grounds. If they are about to take a new constitution let them take one of which we have some experience, and not a hybrid-something from the Swiss, something from the British, and something from our own.

They are taking irreconcilable elements that cannot be made to work in harmony.

If hon. members desire to adopt the Swiss Constitution, let them adopt it. There they have no dissolution of the popular chamber, the government is elected from the two chambers, and the system forms a consistent whole. It may be worthy the consideration of the Convention whether we should or should not adopt that consistent whole.

It may be worthy of consideration whether we should not adopt the American Constitution with perhaps a little amendment. But what I wish to say, in answer to the hon. and learned member, Mr. Barton, is that to introduce the American Senate into the British Constitution is to destroy both.

Ironically, the Australian Senate, which later became a proportional system, has been one of the few checks and balances on the House of Representatives responsible government's excesses.

It is fashionable to claim we are a republic already, but responsible government and republicanism come into conflict in several areas of political structure. Deakin's words emphasise these differences.

Republicans seek to balance the powers of the differing arms of government and hold them in check so they cannot devolve into tyranny or selfish kleptocracy.

These require that the constitution carry checks against executive and legislative tyranny. It also requires that the legislative, executive and judicial be balanced in their powers. Dispersed as much as possible across as many individuals as is possible without paralysing good governance.

Republic comes from the latin Res Publica which means the public space. Accountability for government comes from its actions, output and machinations being entirely in the public sphere.

Central to republican philosophy is that prosperity is impossible without maximum liberty. A central component of maximum liberty is freedom from tyranny and arbitrary government. Responsible government sees the legislative as the dominant branch in government, republicans distrust both the executive and legislative. Republicans see both branches as equally capable of limiting liberty and enabling arbitrary government.

During Federation the likes of Samuel Griffiths, Edmund Barton and Charles Kingston eschewed republican innovations in constitutional government and instead adhered to the principles of responsible government - namely leaving out a Bill of Rights. This enabled High Court justices such as Lionel Murphy to introduce the doctrine of 'constitutional implication'.

The American Republic was essentially a repudiation of responsible government as the most effective form of constitutional order to free individuals from tyranny. The 'irritant cause' for the American Revolution was a tax, something that the legislative, ie British Parliament, leveraged against the American colonists.

It is important not to go overboard in terms of responsible government as it has been an effective form of constitutional government in its various mutations in Australia, Canada, New Zealand etc. However due to poor separation of powers and weak constitutionalism it is less effective than a republican constitution and government. Responsible government was built around a hack, to remove the formal executive power of a monarch without reducing their ceremonial and national power. Due to this original hack, it has become a system of patch on patch, maintained by spaghetti convention layered on top of archaic practice.

The US Bill of Rights protects freedom of political speech with a single line, from the First Amendment;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This is a restriction on the legislative. Since the legislative can make no law abridging freedom of speech, the executive can enforce no law doing the same. Restriction of speech is inherently restrictive, and ultimately of an arbitrary form. The greater danger to republicans is that restrictions of speech will be used by the legislative and executive to silence dissenters. A constitutional right to freedom of speech becomes a just basis of any political relationship between individual and government.

Americans when faced with situations where government is contemplating the restriction can state quickly and easily, "Congress shall make no law that abridges freedom of speech". Liberty, rights and constitutional order are easily known, easily remembered and expressly available to the individual.

Australians have to wade through recent High Court decisions to find anything similar. And in this the Justices have put together a tangled web of implied suggestions from the constitution, responsible government and the basis of political government. One sentence becomes a hard to understand, not easily accessible, amorphous and intangible set of principles.

Compare this to the concrete and explicit nature of the republican language on freedom of speech. One concrete sentence.

One of the cases that has helped established the principle of 'implied' constitutional freedom of political speech is Australian Capital Television vs the Commonwealth. In this decision the justices argued that the Constitution describes representative government which cannot function correctly without informed voters. The implication of this is that political speech must be protected from legislative abridgment. Justice Michael McHugh writes;

25. The short answer to the Commonwealth's contentions is that the powers

conferred on the Commonwealth by s.51 of the Constitution are conferred "subject to this Constitution" and that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people.

Under the Constitution of the Commonwealth of

Australia, those freedoms have been elevated to the status of constitutional rights. The powers conferred by s.51 of the Constitution give the Commonwealth no absolute power to exclude electors, candidates, or information from the

federal electoral process. ...

26. The constitutional rights identifiable in ss.7 and 24 of the Constitution - freedom of participation, association and communication - exist so that the people of the Commonwealth can make reasoned and informed choices in respect

of the candidates who offer themselves for election. Laws which interfere with the flow of political information or a category of political information simply because it is political information are an interference with the

constitutional rights conferred by those sections.

However, the rights identifiable in ss.7 and 24 are not absolute rights. They are rights conferred

for the purpose of enabling the electors to make a true choice in a free and democratic society. They may be regulated by other laws which seek to achieve an honest and fair election process. Thus, the power conferred by ss.10, 29, 31 and 51(xxxvi) and (xxxix) of the Constitution to make laws with respect to the federal electoral process may be used to prevent fraud, intimidation, corruption and misleading information in an election without infringing the rights conferred by ss.7 and 24.

This is where I don't understand it. Sections 7 and 24 are procedural stanzas on how the Senate and House conduct their business. They are not enunciations of 'rights' as Justice McHugh is claiming. This is an attempt to graft republican principles into a constitution which does not hold them. The implied 'freedom of speech' in responsible government is a judicial construct, not a constitutional one.

The Justice's argument may be valid that this is necessary for responsible and representative government to function effectively, but it is not republican.

Representative government and its functions are not rights. They are a form of social organisation that individuals have, supposedly, agreed to in order to maintain their affairs under civil order. Representative government is an emergent effect of individuals seeking civil order. It is not intrinsic to the individual.

Justice Anthony Mason tries to explain all the contradictions between responsible government, federation and the doctrine of constitutional implication. On implication he writes;

It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation.

However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

Which is probably as succinct a description of the doctrine as can be found. One of the problems of this doctrine is that it makes the constitution unknowable and opaque to the citizenry by moving its interpretation into a body of judicial decisions rather than a simple constitutional document.

A republican principle is that the form of social organisation be easily and quickly knowable to any, and every, citizen through an easy to understand, and explicit constitution. Republican government is for the people and tries to remove the requirement for specialisation and extreme knowledge for the function, process and constitutional operations of government to be understood.

It is an extremely egalitarian form of constitutional order which attempts to fend off complexity and third order decision making. This is another republican basis for a just relationship between individual and government. Complexity of laws and second-order constitutionalism are a form of arbitrary government by elevating laws and practice beyond the understanding of the citizens.

It is the old saying, make enough laws and everyone becomes a criminal. This can be translated to constitutionalism as well; with the doctrine of constitutional implication contributing to that result.

The counter argument is that the judicial does not make laws, they only interpret the constitutionality of them, but this process invariably means that the legislative has their future room to legislate in, either restricted or expanded. It does not help that the Legislative branch often uses their powers to expand their own influence and use the judicial as a back-stop - effectively offloading the political repercussions to the judicature.

Mason continues;

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights

"The Constitution is built upon confidence in a
system of parliamentary Government with ministerial responsibility"

They refused to adopt a counterpart to the

Fourteenth Amendment to the Constitution of the United States. Sir Owen Dixon said Sir Owen Dixon, "Two Constitutions Compared";

"(they) were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them
the need of provisions directed to control of the legislature itself."

The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy

Mason is correct in quoting Owens on that issue, but Owens is disingenuous. Ballarat had seen the rise of Chartist Revolt, known as Eureka, in the 1850s. Civil unrest in Northern Queensland during the 1890s prompted Horace Tozer to pass legislation that enabled strikers to be shot on site. The military was also used for civil enforcement and strike breaking. In the 1880s Australian Republicans also came under executive and legislative tyranny during the Republican Riots in which Henry Parkes suspended freedom of speech.

The difference between the Australian and American constitutional drafters was that the Americans had been on the sharp end of executive and legislative arbitrary government from England, while the Australian drafters had been the ones wielding the stick over the prior fifty years.

Mason, despite continuing on with responsible government and the decision by the framers of the Constitution not to incorporate explicit individual rights - which he writes the court is bound to uphold - continues with the structural issue of representative government. And here Mason argues that freedom of communication is protected through the structural implication of the Constitution;

Indispensable to that accountability and that responsibility is freedom

of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to,

political action or decision.

Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.

and;

Freedom of communication in relation to public affairs and political

discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate

on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.

That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion

I believe that speech and communication needs to be constitutionally protected from arbitrary government. I do not like it being done in this manner, it should be done through a 'crack your ribs' explicit constitutional statement of absolute protection from executive, legislative and judicial encroachment on communication.

That Australia is having to protect communication in this manner is an example of the inefficiency in the constitutional monarchical form of organisation and the responsible government doctrine which informs it. Our current system is an invitation to spaghetti organisation, increasing the complexity of our constitutional system and removing government, its processes, and its constitutional basis further from quick and simple citizen's understanding.

This is another path for tyranny and arbitrary government. Republicanism protects against this eventuality.

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