Coper, Michael --- "Search for the Nations Capital - but where is the 'Seat of Government'" [2010] ALRS 2

Last Updated: 7 May 2010

Supreme and Federal Court Judges’ Conference

The Hyatt, Canberra, Tuesday 26 January 2010

SEARCH FOR THE NATION’S CAPITAL
— but where is the ‘Seat of Government’?[1]

Michael Coper[2]

Good afternoon everyone, and welcome to the nation's capital.

I should say first that I am here somewhat under false pretences. The problem is that Richard Refshauge[3] is an exceptionally generous man. Whenever I ask him to do anything for the ANU, he invariably says yes. So when he first approached me to speak to you at this conference, I had no choice but to say yes. The fact that I knew almost nothing about the subject matter of the proposed topic — the founding of Canberra — seemed a hopelessly inadequate reason to decline.

But I had a cunning plan. Get someone in who does know something about the topic. Dazzle the audience with a bit of archival footage. And so it fell into place. I am delighted that David Headon[4] is my co-presenter today. David is an authority, and indeed an aficionado, of the history of Canberra, but not only that, he is also a great populariser. I do not know if his television documentaries have been shown outside Canberra, but he has done a wonderful 5-part series called ‘The Battle of the Sites — In Search of an Australian Capital City’. This resonates beautifully with our topic today, ‘Search for the Nation’s Capital’. And how appropriate is that on Australia Day!

So David is the main game today, and I am only the warm-up act. I just want to put the fascinating story of the founding of Canberra into a bit of a legal context, and to raise with you — as legal interpretation is your bread and butter — some tantalizing issues of interpretation.

(This paragraph omitted from oral presentation on ground of gratuitous self-indulgence)
[Can I just say first that, although I am a first-generation Australian — my father was a refugee from Nazi Germany, and my mother was from the unitary state of New Zealand, where there is no sense of the labyrinthine complexities of a federal system — I feel very connected to Australian constitutional history. I was born on the 50th anniversary of the death of Sir Henry Parkes;[5] my fellow commissioner at the Inter-State Commission[6] in the late 1980s was the grandson of Sir George Reid; and I even wanted to call my first daughter Lucinda, after the Queensland steamer on which the first words of our Constitution were penned on the Hawkesbury River on the Easter weekend of 1891[7] (however, my wife put a stop to that). I am also honoured to hold the Robert Garran Chair of Law at the ANU, named after one of the most iconic figures in our constitutional history, that grand old man of Canberra in the 1940s and 1950s, who, as a young man in the late 19th century, was present at the drafting of the Constitution, and who, some 50 years later, was, amongst other things, one of the founders of the ANU.[8]]

Welcome to the seat of government...
So let me go back to the beginning and say again, good afternoon everyone, and welcome to the nation’s capital — or, to put it slightly differently, welcome to what section 125 of the Constitution describes as ‘the seat of Government of the Commonwealth’.

...but where is it?
But what is the ‘seat of government’, and precisely where is it?[9] Is it synonymous with the Australian Capital Territory? Is it the City of Canberra? Is it the Parliamentary Triangle within the City of Canberra? Is it, more narrowly, Parliament House and its precinct, now on Capital Hill? Or does the seat of government refer even more narrowly to where executive functions are to be carried out, bringing into play all of the complexities of responsible government and the relationship between the Governor-General and his or her Ministers?

Somewhat shockingly, there is no answer to these questions.

The constitutional framework
Let me first remind you of the text of section 125 of the Constitution. Section 125 reads:

The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales and be distant not less than one hundred miles from Sydney.

Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

The Parliament shall sit at Melbourne until it meet at the seat of Government.

Writing in 1900, Quick and Garran immediately saw problems with this section. They said:

The phraseology of this section, and its involved grammatical construction, raise several difficult questions of interpretation. How is the seat of Government to be acquired by the Commonwealth? What is the effect of its acquisition? And what is to happen pending the determination of the seat of Government? These and other questions must be answered; though the obscurity of the section makes it impossible, in the absence of judicial interpretation, to answer them with absolute confidence.[10]

I do not have time to go into these fascinating questions, including whether, in the light of other sections of the Constitution such as sections 111[11] and 123,[12] the concurrence of New South Wales was necessary to the establishment by the Commonwealth of the seat of government.[13] But let me mention two interesting issues.

First, Quick and Garran thought that the requirement that the territory contain an area of not less than 100 square miles carried an implication that it not be significantly more than 100 square miles.[14] As things turned out, the Australian Capital Territory is around 900 square miles.

Secondly, Quick and Garran express the opinion that the distance of 100 miles from Sydney is to be measured in a straight line.[15]

Nothing remarkable about that, you might think. But I think it is interesting for two reasons.

First, the then Interpretation Act of New South Wales provided that distances were to be measured by the nearest road. The Constitution being embedded in an enactment of the Parliament of the UK, Quick and Garran relied instead on the Imperial Interpretation Act 1889.[16] This raises nice questions of whether it was ever really appropriate to rely on the UK Interpretation Act to interpret our Constitution, and, if so, just when and how it became inappropriate.[17]

Secondly, the issue of how you measure distance has a special resonance for me because of my involvement over 20 years ago in the landmark section 92 case in the High Court of Cole v Whitfield,[18] which grew out of a criminal prosecution in Tasmania on a charge of being in possession of undersized crayfish. My predecessor as the lawyer member of the Inter-State Commission in the mid-1980s, the late Justice Mervyn Everett, told me that, in his youth at the Tasmanian Bar, he had successfully defended people on this charge by arguing that if you measured the crayfish, not in a straight line, but taking into account the humps and ridges, it was not actually undersized. Needless to say, his success provoked a change in the law in Tasmania.

But where is the seat of government? Let me return to this burning issue.

The legislative determination
Under section 125 of the Constitution, this is to be ‘determined by the Parliament’, and it is to be ‘within’ territory — not coterminous with that territory[19] — ‘within’ territory granted to or acquired by the Commonwealth. So what did Parliament determine?

The Seat of Government Act 1904 provided that the seat of government shall, within a territory of not less than 900 square miles,[20] be ‘within 17 miles of Dalgety’,[21] a small town in the south of New South Wales on the Snowy River. This was repealed in 1908 by a new Act, which I believe is still in force. The Seat of Government Act 1908 provided that the seat of government shall be ‘in the district of Yass-Canberra’.[22] Following agreement with, and a surrender of territory by, New South Wales, the Seat of Government Acceptance Act 1909 determined that the seat of government ‘shall be in the Territory described in the Second Schedule’,[23] which is the territory now known as the Australian Capital Territory.

None of this legislation fixed the place within the territory at which the seat of government would be.

Selection of the site for the nation's capital, the story that David Headon will take up in a moment, was rather a matter of executive action, culminating on 12 March 1913, at 12.00 noon precisely in a ceremony on Capital Hill, in the declaration by Lady Denman, in her clear English voice, and with a dramatic revelation worthy of the modern day Oscars,[24] ‘I name the capital of Australia “Canberra”’ (to which she then famously added: ‘...and the accent is on the “Can”!’).

Does the indeterminacy matter?
So, unfortunately, we do not know exactly what and where our seat of government is. It has never been determined. Perhaps it is not a geographical location at all, but more of a metaphysical concept — or even just a metaphor.[25] But does any of this matter?

Probably not — although my esteemed former colleagues Tony Blackshield and Francesca Dominello, noting that the seat of the High Court is now required legislatively to be at the seat of government, observed in their entry on the seat of the Court in The Oxford Companion to the High Court that, on one interpretation, the High Court might have been built in the wrong place.[26]

More seriously, the issue could arise in a number of contexts. One that comes to mind is the implied constitutional freedom of access to the seat of government, relied on by Griffith CJ and Barton J in 1912 in R v Smithers; Ex parte Benson,[27] and adverted to by Dixon CJ in 1958 in Pioneer Express Pty Ltd v Hotchkiss.[28] It might be important in that context to identify precisely what and where the seat of government is.

Broader issues
I guess it is enough for our purposes simply to say that the seat of government is in Canberra, but that just raises in my mind a whole raft of issues I would love to raise with you if we had time. What is the role and function of a nation’s capital? Is it more than symbolic?[29] Is there a parallel with the role of a Chief Justice within an otherwise non-hierarchical court? But these issues are for another day. I pause only to observe that there is no richer constitutional environment in which to live in Australia than a federal territory, especially the federal territory within which — somewhere! — is the seat of government. One has all these additional layers of complexity, as we seek to work out, for example, which of those constitutional constraints applicable to the Commonwealth in its capacity as a body of limited power vis-à-vis the States are applicable to the Commonwealth in its capacity as a body of plenary power vis-à-vis the territories, particularly in relation to the requirements for territorial courts.[30] But this too is for another day.

Search for the nation’s capital
Let me finish, and segué into Dave’s presentation, by saying just a little about the actual choice of Canberra as our nation’s capital. It is a long and complicated story,[31] but a number of aspects of it fascinate me.

The candidates
First of all, an astonishing range of places were considered or promoted, first during the Convention debates, before the parameter of New South Wales was agreed, with suggestions ranging from St Kilda to Mt Gambier to ‘somewhere in Tasmania’,[32] and later, when that constraint was accepted, within New South Wales. Without being comprehensive, the possible sites included Albury, Armidale, Bathurst, Bombala, Dalgety, Lake George, Lyndhurst, Tumut, and Yass. Moreover, public consultation yielded nearly a thousand new suggested names for the national capital, including — and I will just give you a taste of them — Marsupiala, Fisherburra, Eucalypta, Democratia, Wheatwoolgold (one word!), Boomerang City, and Gonebroke.[33]

The climate
Secondly, I love the idea that lay behind much of the debate, and which no doubt stemmed from the natural affinity of the white Australians of those days with European history, that the height of human achievement and intellectual endeavour can be reached only in a cold climate. The Queenslanders here might have something to say about that, and perhaps, if the theory is right, we should be even more concerned about climate change. It is interesting, though, that, at the end of the day, Dalgety, which as I said is in the Snowy Mountains, was thought to be just a little too cold!

The anthropomorphism
Thirdly, it is of interest to me how the term ‘Canberra’ has, over the years, acquired a usage that sees it as shorthand for the federal government, and generally in the context of criticism. It irritates the locals no end, and it would be interesting to trace the origins of the practice, to which other national capitals around the world have obviously also succumbed.

The topography
But none of this detracts from the physical beauty of Canberra and the region, itself a factor in the final choice of the site for the nation’s capital. Aldo Giurgola, the renowned Italian architect of our present Parliament House, loved Canberra so much that he retired here. I once heard him articulate what it was about the topography that he found so alluring. It is a city, he said, ringed by the Brindabellas, that are at once not so high and imposing as to be threatening, but are high enough to give a coherent sense of place and a feeling of protection.

(The end)
I do not know whether this was in the minds of our forbears, consciously or unconsciously — perhaps it was — let's assume it was! — but I am going to hand over now to the real expert on the history of Canberra, David Headon.

..........

---

[1] Taken from the title of JQ Ewens’ famous 1951 article, below n9.

[2] Dean of Law and Robert Garran Professor of Law, ANU College of Law, Australian National University, Canberra.
[3] Justice Richard Refshauge, ACT Supreme Court; Adjunct Professor, ANU College of Law.
[4] Dr David Headon, cultural consultant and historian, Adviser on the Centenary of Canberra to the Chief Minister’s Department, ACT Government.
[5] 27 April 1946.
[6] Constitution ss101-104; Michael Coper, ‘The Second Coming of the Fourth Arm: The Role and Functions of the Inter-State Commission’ (1989) 63 Australian Law Journal 731; Michael Coper, ‘The Untold Story of the Inter-State Commission in Four Minutes and Thirty-three Seconds (with apologies to John Cage)’ (1993) 75 Canberra Bulletin of Public Administration 131; Andrew Bell, ‘The Missing Constitutional Cog: the Omission of the Inter-State Commission’, Bar News, The Journal of the NSW Bar Association, Summer 2009-2010, 59.
[7] Michael Coper, Encounters with the Australian Constitution (1987) 66.
[8] Helen Irving, ‘Garran, Robert Randolph’ in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001) 292; Noel Francis, The Gifted Knight (1983); Leslie Zines, ‘Sir Robert Garran’ in Kay Walsh (ed), Democratic Experiments, Lectures in the Senate Occasional Lecture Series 2006, Papers on Parliament No. 44 (2006); Robert Garran, Prosper the Commonwealth (1958).
[9] JQ Ewens, ‘Where is the Seat of Government?’ (1951) 25 Australian Law Journal 532; Bernard Sugerman, ‘The Seat of Government of the Commonwealth’ (1973) 47 Australian Law Journal 344.
[10] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (1901) 979.
[11] Parliament of a State may surrender part of a State to the Commonwealth.
[12] Parliament of the Commonwealth may alter of the limits of a State, with the consent of the Parliament of the State and the approval of a majority of the electors in the State.
[13] In Paterson v O’Brien [1978] HCA 2; (1978) 138 CLR 276, the High Court rejected out of hand an argument that the carving of the Northern Territory out of South Australia and the carving of the ACT out of New South Wales needed the approval of the electors of those States.
[14] Above n10 at 981. The argument was that the area be reasonably appropriate to the purpose, and that it could not have been intended that a huge area be carved out of NSW that was superfluous to the purpose.
[15] Ibid 982.
[16] Ibid 982.
[17] On a preliminary search, I have been unable to find any significant judicial or academic discussion of this question.
[18] [1988] HCA 18; (1988) 165 CLR 360.
[19] Acknowledged and confirmed in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 262; Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548, 561; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322. This seems to be at odds with the situation in the US (Constitution Article 1, section 8: ‘such district...as may...become the seat of government’) and Canada (British North America Act 1867 (UK): the seat of government ‘shall be Ottawa’).
[20] Section 3, which also provided that the territory should have ‘access to the sea’.
[21] Section 2.
[22] Section 2.
[23] Section 4.
[24] Lady Denman, wife of the Governor-General Lord Denman, drew out of a gold cigarette case a card with the hitherto unrevealed name of Canberra as the name of Australia’s capital city: Lionel Wigmore, The Long View: A History of Canberra, Australia’s National Capital (1963) 62.
[25] See Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA Trans 67 (25 March 1999) per Kirby J arguendo.
[26] Tony Blackshield and Francesca Dominello, ‘Seat of Court’ in Blackshield, Coper and Williams, above n8, 614, 617.
[27] [1912] HCA 96; (1912) 16 CLR 99, following the US case of Crandall v Nevada (1868) 73 US [1867] USSC 15; (6 Wall) 35.
[28] [1958] HCA 45; (1958) 101 CLR 536.
[29] David Headon, The Symbolic Role of the National Capital (2003).
[30] ‘There are few constitutional problems in Australia more vexing than these. Few have led to answers so intellectually unsatisfying. Few have produced results so bizarre. Few have given rise to so many judicial regrets about the lack of a coherent doctrine and the consequent “disunity in the judicial system of Australia” which “arises from the separation of federal, State and territorial jurisdictions”’: per Kirby J in Re Governor, Goulburn Correctional Centre; Ex parte Eastman(1999) 200 CLR 322.
[31] Roger Pegrum, The Bush Capital: How Australia Chose Canberra as its Federal City (1983, rev 2008); David Headon, ‘Wanted: Treasure House of a Nation’s Heart: The Search for an Australian Capital City 1891-1908’ in Kay Walsh (ed), Parliament, Politics and Power, Lectures in the Senate Occasional Lecture Series 2008, Papers on Parliament No. 50 (2009) 51; various articles in the Canberra Historical Journal, New Series No. 61, December 2008.
[32] Quick and Garran, above n10, 978.
[33] Wigmore, above n24, 62.