The birth of the Constitution

We are starting to write content for the Australian Constitution Centre. The CCF last week on the rule of law introduced of one of our seven themes. In case you’re a new reader we’ll give you a quick outline. CEFA and the High Court are working together to build the Australian Constitution Centre at the High Court in Canberra. Using the latest technologies, it will open later this year and our aim is to promote the Constitution. We expect hundreds of thousands of school children to attend each year, plus tourists and people like you that are interested in our Constitution.

The topic of our article this week, the birth of the constitution, could be one of the most important themes of the Australian Constitution Centre. Not only because it is the story of how our country came about, but because this story impacts Australians today. The ideas and reasons behind every single word in the Constitution were discussed as they were being written, there were huge debates and then votes were held. All of this was noted by many different people and then later published in several books.

Here at CEFA we often research these historical records. We want to go back and look at the meaning of parts of the Constitution through the eyes of those who wrote it. The debates and discussion held during the writing of the Constitution are sometimes very amusing to read. Josiah Symon a delegate from South Australia often spoke in a forceful and cantankerous manner and always gives us a giggle here. He was very much against appeals to the Privy Council and called it an ‘anachronism and an absurdity’.

The problem for us at CEFA is that this is such a long story. We need to get it down to 500 words for the Centre. So we’re asking you for help. What’s your favourite part of the birth of the Constitution? Who was your favourite delegate? What’s the funniest or most interesting thing that was said during the lead up to federation?

One story that comes to mind is that of Tasmanian Andrew Inglis Clark missing the boat where the first draft of the Constitution was written because he was sick. Poor old Andrew had written the pre-draft of the Constitution and when it came time to writing the first actual draft he was unwell.

Without him there, the first draft of the Constitution was written on-board Queensland Government Steam Ship Lucinda while sheltering from the weather on the Hawkesbury River at Refuge Bay. When he could finally join the group, Clark was reportedly furious with the result of changes to the independence of the Court. The Parliament had been given the power to establish a court instead of vesting the power of the Court directly in the Constitution. It did take some time, but in the final version of the Constitution the power of the Court was put back to how Clark had initially designed in his pre-draft.

Then of course we have Samuel Griffiths. One of the most important people in Australia’s history. He was Premier of Queensland from 1883 to 1888, wrote that 1891 draft of the Constitution and then later became the first Chief Justice of the High Court in 1903. With a bit of imagination we can see Samuel Griffith furiously writing the Constitution while sitting in the smoking room of the Lucinda over Easter weekend in 1891. Much of this draft of the Constitution is found in the final document. But perhaps our story should go back further.

Should we start in 1846 when the new Governor of New South Wales Charles FitzRoy suggested that there needed to be a central intercolonial authority in Australia? He had only just arrived for this job in Sydney, but had spent quite a bit of time in other British Colonies throughout the world. Or perhaps we could begin the story the following year, when Earl Grey, who held the Colonial Office in the British Government, invited the colonies to provide comments on constitutional proposals. This was around the time that Victoria was looking to split off from New South Wales. Some of the feedback received from the colonies recommended a federal assembly, of which the Earl considered. He was an ardent free trader and saw a federation as a guarantee of free trade throughout the colonies. However, many of the colonies saw a federal assembly as something that would increase the power of New South Wales and they were opposed to that.

Both FitzRoy and Grey did not seem to understand the feeling of the people in the Australian colonies. As well as not being fans of federalism, by the late 1840’s the people in the colonies were also against further convict arrivals. But, the British Government and the British Governors of some of the colonies continued sending and receiving convicts. Then in 1864 the French started sending convicts to New Caledonia and considering annexing what is now called Vanuatu. The people living in the Australian colonies saw the French as a possible problem. There was a suspicion that the might fill up the Pacific Islands with French convicts and then look to the shores of Australia. Then in 1883 there were rumours that the Germans were looking at what they might do with New Guinea.

Finally, the people started to consider uniting under a federation for the defence of the colonies. The feeling within the colonies was that Australia was an isolated outpost of Britain, surrounded by foreign powers who were intent on expanding their settlements and were possibly hostile to the people in Australia. While the colonies believed that they were under the protection of the British Empire, it was thought they should do something about defence and security.

Is this the place where we should begin the story?

Some might suggest the story begins at Tenterfield in 1889, where Henry Parkes gave an inspiring speech about the need for federation. Much of which was based upon defence and security and well as a uniform gauge railway line throughout the colonies. Reportedly, he was also the first person to suggest that we become the ‘Commonwealth of Australia’ (click here to read an article we published earlier this year about this term)

Then of course we have the final Constitutional Conventions in 1897-98. These conventions received much more interest from the people. Could this have been because the delegates were elected, rather than appointed by the colonial governments? Or perhaps it was just time? And then of course the draft produced from the final conventions was given the tick of approval by the people of the six colonies at referendums.

Many would say that it was never about it being just time. That without such hard work, it could have never have happened. This document, the Constitution, had to be approved by the colonial governments that were to become the states, it had to be approved by the people at referendums in the colonies and it also had to be approved by the British parliament. Writing a Constitution for three such audiences was certainly a feat which involved a lot of compromise, collegiality and good-will. Josiah Symons, who we mentioned a bit earlier, made it known that he was putting party issues aside and making the nation’s interest pre-eminent during this period (he was elected as a South Australian Senator for the Free Trade Party in the first election in 1901)

Then where do we fit in the information about all the firsts that our Constitution holds? The first elected upper house. The first Constitution to allow double dissolutions? Many people don’t realise that our Constitution was very radical at the time it was written. Perhaps you can help us fill out the ‘firsts’ of the Constitution.

One thing that we should definitely get into our birth of the Constitution story is that of the great celebrations throughout the country when the Constitution came into force on 1 January 1901. It was a time of great pride. Our Constitution had been written for our new fledgling country, it was approved by the people and could only be changed by the people. This is one of the most important parts of the Constitution and it is the final section. Only by asking the people and by making a case for change can the Constitution be altered. This means that the Constitution and all within it belongs to the Australian people. It’s not controlled by the Government, the Parliament or even the Courts. It unites you and me as the people of Australia.

We are serious about wanting your help. We would like the Australian Constitution Centre to also be owned by the people of Australia. We know that we have a lot of academics, scholars and legal experts who would like to be involved in this project, but we would really welcome ordinary Australians who have an interest in the Constitution or who have picked up some interesting facts about the Constitution to submit your thoughts to us. You can comment below (if your information is short) or you can email us at

Together we can make the Australian Constitution Centre truly great.

If you would rather make a donation to help build the Australian Constitution Centre, you can do this securely online with PayPal, or contact us at or call us on 1800 009 588. Even a small donation will go a long way. 


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