Stranger from Hobart (Reprint from 1999)

Professor Peter Botsman

Chair: Barry O. Jones. A Preview  of The Great Constitutional Swindle, Pluto Press, 1999. Brisbane Writers Festival. October 14, 1999, 5.45pm QCC Auditorium.

Why?

The answer is that we have been jipped and swindled of our heritage. It is not just that the discipline of Australian history has only really emerged since the 1960s. Not only that we have, as has been observed so often, no civics lessons in our classrooms. (Could Australians really be taught to love their laws? I think not.)

No, the real reason for our apathy is that the most interesting figures, controversies and shortcomings of Australian Federation have been edited out.  Even today, or should I say, even more today, the temptation for historians and politicians is to have god and a triumphalist story of federation and Australian democracy on their side. Heaven help the black arm band historians! It’s important to be on top at the turn of a century, and in the era of the 1990s, the great temptation is to be seen as a ‘winner’ and on the side of democracy, officialdom, the legal fraternity and the big end of town.

As a result we have a story of the birth of the Australian nation that rightly bores most Australians to tears and is dominated by a small number of victors: Henry Parkes, Alfred Deakin, Edmund Barton and Sam Griffith. It is a story of great, bearded white men – and now in tune with the times, we have even added some adoring white women, who, though they along with the homeless, those on charitable relief, indigenous Australians, Asiatics and others could not vote, were still, we are told, in favour of Federation. This story of Australia is the story of the formation of a great democracy and is of unbridled boredom and irrelevance to most of us. It’s also a lie.

There is another story which remains to be told. It is this story that I think will inspire Australians from all walks of life. Let me tell you a little of that story tonight. When each of us understand that story then in my view Australia will have come of age.

When he first ran for the Tasmanian parliament, the Launceston Examiner called him “the stranger for hobart” and he has been a stranger to us for most of this century. Andrew Inglis Clark, came to understand the principles of federalism from the captains of the Boston whaling fleet which fished the great southern oceans and regularly came to port at his home town Hobart. It was this man who was most responsible for ‘the idea of the Australian nation’. Of the 126 sections of our current constitution, Clark is directly responsible for 88. Yet there is no suburb named Clark next to the suburbs of Parkes, Deakin, Griffith, Forrest, Kingston and Barton that circle parliament house and the high court in Canberra.

But if we had a Thomas Jefferson, it was Clark. He was a passionate republican, an engineer by trade, the founder of the University of Tasmania, the designer of Tasmania’s Hare-Clark voting system, the editor of small, vibrant literary magazines and, above all, a believer in inalienable human rights. Incredibly Clark purposefully abstained from voting in the 1898 referendum to enshrine the constitution that he had worked so hard on. He believed there was still more work to be done. Perhaps his initial fall from grace came because it was embarassing to our official historians that a man so central to our constitution could admit that it was far from perfect! But Clark citing George Washington wrote: “If to please the people, we offer what we ourselves disapprove, how can we afterward defend our work. Let us raise a standard to which the wise and honest can repair”.

After his apprenticeship with the American whalers, Clark learned the finer points of federalism at the feet of US Supreme Court Justice Oliver Wendell Holmes who had been shot three times on separate occasions in the civil war and was prepared to give up his life for a democratic ideal. Clark was a man like Holmes. He believed in a society in which “all men (sic) must be regarded as equal in the possession of the inalienable rights to life, liberty and the pursuit of happiness” and he believed this democracy would result  “in the abolition of every institution that confers political power or personal privilege as an appendage to birth from a particular parentage”. His weary face stands out amongst his more famous peers. He was not a poseur.

What does it say about the official history of Australia, that until recently, we have known little about this seminal founding father, this stranger from Hobart? It is stories about people like Clark, the dissenters of Federation and hearing from the people who were critical of our constitution that will make ordinary Australians become interested in their constitution. It will make the three bowling ladies featured in the Courier Mail preview of the November referendum strive to know more about their founding laws and structures of government. It will make us all want to know more.

Andrew Inglis Clark was swindled out of his rightful place in history and so to were we swindled of our heritage. How did it happen? There are a number of reasons but let me advance the main factors.

The first was Alfred Deakin’s myth of the Lucinda. At the 1891 Constitutional convention Deakin praised Sam Griffith who, with Charley Kingston, Edmund Barton and others, disappeared up the Hawkesbury in the Queensland government steamer the Lucinda and returned after just a few short days with a comprehensive draft constitution that was to become with only minor amendments and additions the constitution we know today. To Deakin and everyone else it appeared that Sam Griffith had performed a miracle. Not only at this time was Premier Griffith cabling instructions up to Brisbane to arrest strike leaders George Taylor and Julian Stuart in the famous Queensland shearers strike, over this same Easter period, he was supposedly writing the Australian constitution. 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 draftmanship with the same finish in the same time.”

The untold story was that over the entire year of 1890, Andrew Inglis Clark had researched an Australian federal constitution, travelling to America, consulting constitutional experts like Holmes in Boston, studying the Canadian and colonial constitutions and working up the comprehensive draft which was given to both Sam Griffith and Charley Kingston in January, 1891. It was this document that Griffith edited on the Lucinda and it was this document that became the backbone of the Australian constitution. After his stint up the Hawkesbury, we know that that Griffith made many structural  improvements to Clark’s constitution but he also made some fundamental errors that had to be corrected by Clark at later conventions. But it was Clark’s ideas and ingenuity, much more than Griffith’s editing, which were at the heart of our current constitution. The romance and myth of the Lucinda obscured this for nearly one hundred years.

The second reason we don’t know about Andrew Inglis Clark is that the workings of the 1891 convention, with its committee style deliberations, were veiled in secrecy, and added to this, Clark himself had a propensity to stay out of the lime light, either because of ill health or shyness. He missed the mythical Lucinda voyage because of the flu. It was not until July 21, 1958 that John Reynolds, Barton’s biographer , published the original Clark draft constitution. It was only then that we could see how much of Clark 1890 draft was reflected in the current constitution. But even when Reynolds published the draft “for historical reasons” he did not understand its significance.

Reynolds, I would argue, viewed Clark through the ultra-Federationist prism of Barton, Deakin and Griffith and this is the third reason why it is only now that we have begun to pay more attention to Clark. To understand Clark’s significance, the story of Federation must be significantly reworked relying less on the politicians as the interpretors of Federation and more on the ideas that were at heart of  the constitution.

Justice Kirby has recently argued that Andrew Inglis Clark had a very modern ideology. He viewed the constitution as a “living force” that was open to each coming generation to re-interpret. How different from the black letter legal interpretations that were the dominant view of the Australian high court for so much of the 20^th century. Only with the contemporary changes in our understanding of constitutional interpretation put forward by men like Lionel Murphy, the Brennan court and Michael Kirby  is it possible to understand Clark’s central place as the father of the Australian constitution.

The significance of Clark for us one hundred years later is that once we move away from Barton, Deakin and Griffith and move to consider Clark’s idea of the constitution as a living force that is the responsibility of each succeeding generation to uphold and understand, Australia has to become less of a nation that relies on invisible decision makers, be they politicians, high court judges or monarchs. The good judgement of the Australian people becomes what is important not the stale and crusty ideas of the Bob Hawkes, the popularists and spellbinders of the 1890s. That is what the founding writer of our constitution intended and only when this occurs will Australia have come of age. Only then will we be able to merge our diversity with a cohesive national identity. Only then will Australians become more interested in changing, adapting and debating our moribund, horse and buggy constitution. There is much more to tell about Australia’s Great Constitutional Swindle but as those who attended the writers awards last night will tell you, Australians love the man with the white t-shirt and the stenciled on bow-tie, who emerges from the better dressed elites, to claim the main prize on behalf of us all. Who says “you shouldn’t sulk if you lose and crow if you win”. In Andrew Inglis Clark, as with  we have finally found a genre for Australians.

Professor Peter Botsman is Executive Director of the Brisbane Institute. His book The Great Constitutional Swindle,  Pluto Press will be out in November.