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  Issue No 47 Official Organ of LaborNet 24 March 2000  

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Review

The Stranger from Hobart

Extracted from The Great Constitutional Swindle' - (Pluto Press)

In his controversial new book, Peter Botsman lifts the lid on the unsung hero of federation, Andrew Inglis Clark

 
 

It appeared that Sam Griffith had performed a miracle. During Easter 1891 he had produced a document of remarkable lucidity. This, compared with the American federalists who met continuously for four months with only one adjournment, seemed unbelievable. Alfred Deakin wrote: "in every clause the measure bore the stamp of Samuel Griffith's patient and untiring handiwork, his terse, clear style and force of expression. The Bill as a whole speaks for itself. There are few even in the mother country or the United States who could have accomplished such a piece of draftsmanship with the same finish in the same time.

We now know that Griffith's miracle was due to the Tasmanian who was holed up in a Sydney hotel with the flu during the famous voyage of the Lucinda. Andrew Inglis Clark devised a seven part, 96 section draft "Bill for the federation of the Australian Colonies" and circulated it to select members of the Sydney constitutional convention in February 1891. Griffith received his copy in January. It was this draft that was the real foundation of the Australian constitution as we know it today. It was the raw material for the Lucinda editorial group; it gave the 1891 Sydney convention its importance and Sam Griffith his glory. Of Clark's 96 sections, 88 survived Sam Griffith and the Lucinda editorial process and 86 are recognisable in the current Australian constitution.

It is to Clark that contemporary scholars have turned to discover the meanings and ideals of the constitution, and they have not been disappointed. Clark was an Australian Jefferson, who, like the great American republican, fought for Australian independence; an autonomous judiciary; a wider franchise and lower property qualifications; fairer electoral boundaries; checks and balances between the judicature, legislature and executive; modern, liberal universities; and a Commonwealth that was federal, independent and based on natural rights. When Clark first stood for the House of Assembly he was attacked by the Hobart Mercury for holding extreme "ultra-republican", "revolutionary ideas". Clark's vision was of "an indestructible union of indestructible states" that preserved the autonomy of local regional life. He was a nation in which state and regional powers/interests were autonomous but compatible with those of a central government. This was to be achieved by a bicameral national parliament representing the people as a whole with state interests represented through a senate. A high court was to be established to guard and interpret the constitution, the division of national powers and to hear appeals from state courts and legislatures. This Australian court, not the privy council in England, was to be the place of last appeal.

Clark's knowledge of federalism, the division of powers, the role of the senate and the high court was superior to any of the leading constitutional thinkers, including Griffith, Barton and Deakin. His draft Bill was developed during a year of travel in 1890 when he visited England and the United States from May to November. It drew on the British North America Act [1867] UK, the United States constitution, the Federal Council of Australasia Act [1885] UK, and the Australian colonial constitutions. There is an element of 'the fitter' about Andrew Clark's Bill. As Helen Irving has written, it involved in handywork - was itself characteristically Australian." But more than this, Clark saw into the future; his ideas resonate more now than they did to his colleagues.

Throughout the constitutional conventions, Clark played a behind-the-scenes role and left the political running to Barton and Deakin. The 'stranger from Hobart' seemed almost purposefully to avoid the spotlight. The Sydney Morning Herald described him "as an active little man", but as he had missed the Lucinda editing voyage due to ill health, so too, for similar reasons, he missed the 1897 conventions, preferring to send written comments and suggestions.

Clark was sometimes annoyed by his colleagues' inability to grasp the substance of federalism and particularly the separation of powers. In the 1897 debate on the Commonwealth Bill in the Tasmanian House of Assembly, Clark told his colleague that after the 1891 convention, "he found that the Supreme Court of Australasia was not as he had made it in his original draft ... a permanent part of the constitution" but rather, "the creature of the Legislature of the day". Speaking of the blunder, Clark was reported as follows: "The Drafting Committee of the convention went for a picnic on the pleasure yacht, Lucinda, and while enjoying themselves they took it into their heads to tinker with the Bill and they altered all the clauses relating to the judicature ... and he took leave to say, messed it. The second convention (1897-98) had restored it to its right position.

Clark's non-appearance at the final constitutional conventions to support his suggestions - a provision to deal with deadlocks between the upper and lower houses of parliament, the Hare system for senate voting, the introduction of an Australian Bill of Rights provision into the constitution and the right of each State to appoint and dismiss its own governor - seems tragic. Even if these suggestions were too far ahead of the times and would not have been accepted, we would have gained more insight into Clark's vision for the country through the transcripts of the proceedings. Bernhard Wise put forward Clark's proposals at the 1897 Melbourne convention and spoke to them based on a memorandum from Clark. The convention failed to give its assent to any of them as debate became mired in technical detail.

Perhaps the most import of Clark's ideas - that of constitutionally enshrining the inalienable right that no man shall be deprived of life, liberty or property without due process of law along with other protections against state administrations - could not have been sustained in the Australia of the 1890s. Clark's notion of inalienable rights would have called into question Section 51, Clause Xavier, six, which provided for special laws and immigration standards on racial grounds. The same man who could write: "I am a believer in the fundamental rights of man was also in favour of racially-based immigration restrictions. Clark believed in the emergence of an Anglo-Australian ethnic community, which, was not only racially dissimilar to the "Asiatic" peoples, but was also distinct from his "homo-lingual kinsmen" in Britain, Wales, Scotland and Ireland. By restricting entry to immigrants on racial grounds, Clark believed, as did most Australians of his time that Australia could avert a "civil war" between white and "Asiatic" peoples, and, most importantly, that the purity of the Anglo-Australian ethnic community could be preserved. Such were the flaws in even the best of our founding constitutional writers and thinkers.

Controversially, Clark, the principal writer of the constitution, did not vote for federation at the 1898 referendum. He was not satisfied with the financial division of powers between the states and the Commonwealth because Tasmania, more than any other state, would be vulnerable to the Commonwealth takeover of customs and excise duties. He wanted the Commonwealth to agree to manage state debts in return for trading away the source of over 40 per cent of Tasmania's public revenue. History again favours Clark's judgement: with the passing of the Financial Agreement Act [1927] C'wlth, the Commonwealth did indeed take over the management of state debt. Because of its small population and lack of bargaining power, no state gained more from central fiscal coordination and harmonisation than Tasmania.

But in these matters of principle, and in his shyness to appear at the constitutional conventions, Clark did not serve his own cause well. He did not receive the rewards of high office that fell to better known federalist peers such as Griffith, Barton and Deakin. Such is politics. With 100 years of reflection, however, we should give appropriate acknowledgement to Andrew Inglis Clark. His ideas, more than any other of his time, shaped the nation.


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In this issue
Features
*  Interview: Telstra Troubleshooter
Andrew Hillard first blew the whistle on Mal Colston’s expenses rorts; now he’s taking on Telstra over its tactics to drive down wages and conditions.
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Staff at the Illawarra Mutual Building Society organised their own Christmas present - and, with the help of a little e-mail, delivered 80 new members to the ASU's Clerical and Administrative Branch.
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*  International: A Move to the Left?
John Passant look’s at ‘Red Ken’ Livingstone’s tilt at Mayor of London and what it means for the Radical Left.
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*  Legal: Going Broke: What Workers Should Do
A no nonsense guide to protecting your entitlements when the boss goes bust.
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*  Politics: "I Can't Believe It's Not Peter Reith":
The NSW Labor Government is waging a dirty campaign against the NSW Teachers Federation in order to gain the upper hand in the long running award dispute.
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*  History: One Big Nation
In the 1920’s rural Australia was arguing for its share of the national wealth through The Bush Workers Propaganda Group.
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*  Satire: Toddler Death Fallout: BMW Releases New Oven
The Victorian Government has turned up the heat on the gambling and car industries following a spate of children being locked inside cars.
*
*  Review: The Stranger from Hobart
In his controversial new book, Peter Botsman lifts the lid on the unsung hero of federation, Andrew Inglis Clark
*

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