Twomey, Anne --- "A Living Force: Andrew Inglis Clark and the Ideal of Commonwealth Richard Ely (ed), A Living Force: Andrew Inglis Clark and the Ideal of Commonwealth (2001)" [2002] FedLawRw 14; (2002) 30(2) Federal Law Review 399
It is the vision of an ideal higher than that which the facts around him embody, and the pursuit of it against all difficulty and opposition, that marks the true hero and leader among men from the self-seeking counterfeit who uses the capacities and the blindness and weaknesses of other men as the instruments of his own aggrandizement and his pleasures.[4]
Clark was not all words when it came to standards in public life. He resigned from his position as Attorney-General in 1897 after his colleagues granted a presumably dubious lease of Crown land without seeking his legal advice. He did so to avoid the office being 'stained or deterioriated' by any act which reduced its dignity, status or power.[5]
Clark rejected the notion of pandering to the views of the majority in order to achieve political success. He quoted the words of Washington on taking his position as president of the Convention that framed the United States Constitution: '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'.[6] These are words which many political leaders should take to heart.
Interestingly, Clark saw these words as an 'all sufficient and effectual reply to the arguments used in support of the monarchical and aristocratical forms of the British Constitution'.[7] He was a democrat and a republican.
THE RELATIONSHIP BETWEEN THE MACHINERY OF GOVERNMENT AND GOOD GOVERNMENT
The relationship between the machinery of government and the ideal of good government was one that Clark considered closely. He gave general but qualified supported to the aphorism that 'every country obtains a government as good as it deserves'. He considered that the Australian people deserved better government than they had, if this were measured by reference to the capability of the Australian people to maintain and administer a better form of government. However, if the question is asked by reference to the 'existence of any widespread desire for the possession of better political institutions or of any earnest effort to obtain them, then it may be that we get all we deserve because we have not yet manifested any deep desire, or put forth any earnest effort to improve the political machinery around us.'[8]
That observation is just as valid today. It is not merely a reflection of the apathy surrounding the republic debate. Criticism is constantly heard of the methods by which governments operate and the caliber of political representatives, but it rarely, if ever, moves beyond whinging to positive efforts to change the machinery of government to effect a different outcome.
Clark took the view that the people who govern us must be those who are the most capable people in the community to perform such a duty. If there are more capable people in the community, who are not our legislators or Ministers, then this must be a failure of the machinery of government. It is a failure either because the system does not provide for the best people to be chosen, or because the best people refuse to govern. Even the latter case, according to Clark, was the result of the failure of the machinery of government.[9]
It would be difficult to assert today, that those who govern us in each of the three tiers of government, are the most capable people in the community to do so. Many elected Members and councillors are unfit and unprepared for such a role. It is clear that the voters rarely have any idea about the capacities and capability of the people they elect, and it is even doubtful whether the ability to govern is considered to be a criterion in choosing a candidate. Yet there is no call to change the system, so perhaps we do get what we deserve.
Clark did not confine his criticism to those who govern. He also had a swipe at the press, noting that to the extent that its denunciation of Ministers and legislators is untrue and unfair, it lowers the standard of political life to the level it declared already reached by the persons it assails. This too, is a pertinent comment today.
'REPRESENTATIVE GOVERNMENT' AND 'RESPONSIBLE GOVERNMENT'
The meaning of 'representative government' is an issue that has recently occupied the minds of the Justices of the High Court.[10] I wonder what their Honours would make of the following definition offered by Clark:
The true principle and essence of representative government is the recognition of the right of the most capable to govern, and the correlative right of the governed to determine the misrule of the incapable or dishonest who may at any time be found exercising the functions of government.[11]
What marvelous implications could be drawn from the right of the 'most capable' to govern. Who would be left once the 'incapable' and the 'dishonest' are removed? Would we still recognize our form of 'representative government'?
Clark also rejected the system of responsible government as being inappropriate in Australia. He preferred a separation between the Parliament and the Executive, based on United States or Swiss models.[12] He considered that responsible government (or 'Cabinet government' as he described it) has the tendency to make nominal leaders of the most subservient followers of their party, and creates an Opposition 'which is always ready to mutilate and deform the most beneficial measures of a Ministry simply as a display of strength, and hence Ministerial proposals are often framed to present the fewest possible number of points of attack than to grapple vigorously with the necessities of the country.'[13] Again, this is the voice of experience. It is an even greater problem today where governments no longer have control of the upper house and unpopular but necessary measures are accordingly put off, abandoned or mutilated in political game-playing.
CONSTITUTIONAL AND SOCIAL REFORM
Fear of change seems often to paralyse the prospect of reform today. Clark and others in the late nineteenth century did not suffer from such fears. They were prepared to try and prepared to fail. Clark is most renowned for introducing the Hare-Clark electoral system in Tasmania, allowing greater representation of minority views in the Parliament. This was his attempt to improve the machinery of government, so as to improve the quality of government in Australia. Whether the system is beneficial or not, remains uncertain. It certainly exacerbates the problems of responsible government. However, one must admire Clark's conviction and his efforts to devise and implement this reform.
Clark introduced constitutional reform to expand the franchise for both men and women, and to deal with deadlocks between the two Houses. The Bill was defeated.[14] He also failed to achieve the passage of legislation to remove the plural, property-based, vote. His concern with electoral law extended to the corruption of the political system though the large amounts of money spent on political campaigns. He concluded:
Gross and direct bribery may have become comparatively rare, but so long as the love of power urges men to spend money to obtain it, and so long as the expenditure of money for this purpose promotes the result to which it is directed, the practice will continue. It is therefore evident that the full ideal of representative government will never be realised until the power and influence of money are eliminated from Parliamentary elections.[15]
Clark also had strong social views. According to Petrow, Clark opposed increasing customs duties because the poor suffered more than the rich, and he would resign rather than tax food.[16]
Clark's many failures in the Tasmanian Parliament to effect constitutional and social reform are reflected in the amendments he proposed to the draft Commonwealth Constitution in 1897. In debate upon the draft Bill in the Tasmanian Parliament, Clark proposed a provision to deal with deadlocks between the two Houses, the imposition of the Hare-Clark electoral system for the Senate and the introduction of fundamental rights, such as a 'due process' clause modeled on the 14th Amendment of the United States Constitution.[17] Although he did not always succeed with his proposals, he was always prepared to advocate and encourage reform.
CLARK'S ROLE IN THE DRAFTING OF THE COMMONWEALTH CONSTITUTION
Apart from the Hare-Clark voting system, Clark is most remembered for his role in the drafting of the Commonwealth Constitution. The first draft he provided to selected delegates prior to the Constitutional Convention of 1891 was of importance because it set an agenda, provided a structure, and set down words, many of which made their way into the final draft of the Constitution. The influence of Clark's initial draft, as well as his role in the 1891 Convention, is assessed in detail by Alex Castles.[18]
More interesting, perhaps, is Jim Thomson's assessment of Clark's lack of understanding of the practical working of the Constitutions of the United States and Canada, and the consequences for the Australian States, particularly through the way in which the federal distribution of powers was implemented. Clark seemed to be of the view that the American system, ultimately adopted, of enumerating the powers of the Commonwealth legislature and leaving the residue to the States, would in fact protect the local autonomy of the States.[19] In retrospect, a system akin to the Canadian distribution of powers, where certain powers are reserved to the States, would have provided better protection to them. Thomson asks whether Clark was partly responsible for the Commonwealth legislative dominance that exists today? Perhaps kindly, he concludes that this error cannot be blamed on Clark. Clark, after all, was advocating the removal of responsible government, with the greater checks and balances involved in a separate executive and legislature.[20] However, once it became clear that this system was not to be adopted, further consideration should have been given to the effect of the proposed distribution of legislative power.
CLARK AND CONSTITUTIONAL LAW
Clark was never appointed to the High Court. He seemed destined to fulfil this role, but was thwarted by fate. His bitterness towards Deakin, who failed to appoint him to the Court, is reflected in his poetry, where he described Deakin as:
...clothed in bold yet unctuous disgrace
Of broken faith—so cunningly devised
That none could safely say that he had lied.[21]
Nevertheless, Clark's contribution to constitutional law exceeds his role in the drafting of the Constitution. His Studies in Australian Constitutional Law has continuing use as a resource in constitutional analysis, as is seen by its recent reprinting and references to it in High Court judgments.[22] Clark's judgments, as a Justice of the Tasmanian Supreme Court, in cases such as Pedder v D'Emden[23] were also influential.
Justice Kirby, in his chapter on 'Clark and the High Court'[24] refers to the importance of Clark's approach to constitutional interpretation (which accords with his own). Both reject the idea of interpreting a Constitution according to the views of those long since dead. The irony is noted that reliance is placed on a long dead Clark to support this view.[25]
Justice Kirby also discusses Clark's influence on the development of the separation of powers. He refers to the judgment of Deane J in Polyukhovich v The Commonwealth[26] in which reliance is placed upon Clark's writings to establish the proposition that ex post facto criminal laws breach the separation of powers. However, in my view this is an example of stretching the words of a man long dead for modern purposes. If the following pages of Clark's work are read, it makes it clear that he was referring to civil laws (the retrospective imposition of a tax after a tax law is found by a court to be defective) and more specifically to the effective use of the legislature as a court of appeal to reverse court decisions. It is testament to Clark's ongoing relevance, however, that he is resorted to as authority for a proposition even when the evidence of Clark's support for it is less than clear.
THE FUTURE OF THE COMMONWEALTH OF AUSTRALIA
During the centenary of federation, the impression was often given that this was the birth of Australia as a nation—that Australia had shaken off the colonial shackles and obtained sovereignty. Of course, it is not true. All that happened was that several colonies joined together in a federation and became one larger federal colony. Australia's colonial status was unchanged. Australia did not become a 'nation' in the sense that we understand that term as importing independence and sovereignty.
Clark was concerned to remove this same misconception in his time. In his essay 'The Future of the Australian Commonwealth: A Province or a Nation?', Clark noted that the 'establishment of the Commonwealth of Australia has been repeatedly described as the advent of a new nation' but that Australia cannot be considered a nation while it is still an appendage of an empire, subject to the paramount legislative and executive and judicial authority of the sovereignty of the British nation.[27] Clark observed that:
The Commonwealth of Australia, like the Dominion of Canada, remains historically and politically a portion of the comprehensive British nation as much as each separate colony which has become a State of the Commonwealth was a portion of that nation before the Commonwealth was established.[28]
Clark considered that the growth in the locally born population would establish an Australian nationalism, which would result in resistance to the use of the power of the Crown to disallow Commonwealth legislation. He even predicted the British response, being a 'prudent disuse of the royal veto' which would 'prolong the connection of the Commonwealth with the Empire for a long period'. He considered it inevitable, however, that Australian sentiment would eventually demand the abolition of this power, resulting in the advent of Australian sovereignty.[29] Over one hundred years later, the 'royal veto' remains in 'prudent disuse', but the power has yet to be removed from the face of the Constitution in s 59.
Clark considered that the Constitution contained within it the power to transform the Australian Commonwealth into a republic. During the recent republic debate in Australia, questions were raised about the preamble and covering clauses to the Constitution and whether they needed to be amended for Australia to become a republic, or whether this could be achieved by referendum alone. Victoria even introduced a bill consenting and requesting to the repeal of the preamble and covering clauses 2–8.[30] One hundred years earlier, however, in a debate on the Constitution Bill in the Tasmanian House of Assembly, Clark noted that the Constitution Bill vested the power of amendment of the Constitution in the people, and that the people could amend it so as to vest executive power in the Governor-General and appoint the Governor-General in any way they wished. He observed that this had been the deliberate intention of Sir Samuel Griffith, Charles Kingston and himself in drafting the 1891 Constitution Bill.[31] This shocked some Members of the Tasmanian Parliament, with a former Premier exclaiming that it was 'a march towards republicanism'. If so, it was a very slow march indeed.
CLARK'S CONTINUING LEGACY
Henry Reynolds warns that the contemporary relevance of Clark's ideas bring him closer to us than he really is. While we think of him as an intellectual contemporary, it is wrong to remove him from the time and place in which he lived.[32] He is right. The allure of this book, for me, was the startling current relevance of many of the words of a man who wrote one hundred years ago. I was also captivated by the depth of the knowledge, commitment, and passion of this politician, unmatched by most of his contemporaries today. Most politicians today 'practise' politics, but few today think so deeply about the machinery of government and how the best form of government can be achieved. Fewer still have shaped and moulded that system, as did Clark through his electoral reform and constitution-building.
[*] BA LLB (Hons) (Melb), LLM (Pub Law) (ANU). Lecturer, University of Sydney.
[1] Marcus Haward and James Warden (eds), An Australian Democrat: The Life, Work and Consequences of Andrew Inglis Clark (1995); John Williams, '"With Eyes Open": Andrew Inglis Clark and Our Republican Tradition' (1995) 23 Federal Law Review 149; David Headon and John Williams (eds), Makers of Miracles: The Cast of the Federation Story, (2000).
[2] Richard Ely (ed), A Living Force: Andrew Inglis Clark and the Ideal of Commonwealth (2001).
[3] Andrew Inglis Clark, 'Why I am a Democrat', in Ely, above n 2, 32.
[4] Ibid 33–4.
[5] Stefan Petrow, 'Andrew Inglis Clark as Attorney-General', in Ely, above n 2, 65.
[6] Clark, above n 3, 34.
[7] Ibid.
[8] Andrew Inglis Clark, 'Machinery and Ideals in Politics', in Ely, above n 2, 104.
[9] Ibid 104–5.
[10] See, for example, McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424.
[11] Clark, above n 8, 105.
[12] Ibid 108–10.
[13] Ibid 109.
[14] Petrow, above n 5, 51–2.
[15] Clark, above n 8, 106.
[16] Petrow, above n 5, 45.
[17] F M Neasey, 'Inglis Clark and Federation after 1891', in Ely, above n 2, 256. See also the discussion of Clark on constitutional rights in James A Thomson, 'Andrew Inglis Clark and Australian Constitutional Law', ibid, 320–9.
[18] Alex Castles, 'Clark, Kingston and the Draft Constitution of 1891' in Ely, above n 2, 261.
[19] Thomson, above n 17, 307.
[20] Ibid 312–13.
[21] Richard Ely, 'The Poetry of Inglis Clark', in Ely, above n 2, 185.
[22] John Williams, 'Battery Point Revisited: Andrew Inglis Clark's Studies in Australian Constitutional Law 1901–1905', in Ely, above n 2, 355.
[23] (1903) 2 Tas LR 146. On appeal, see D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91.
[24] Michael Kirby, 'Andrew Inglis Clark and the High Court of Australia', in Ely, above n 2, 378.
[25] Ibid 389.
[26] [1991] HCA 32; (1991) 172 CLR 501, 618–19.
[27] Andrew Inglis Clark, 'The Future of the Australian Commonwealth: A Province or a Nation?' in Ely, above n 2, 240.
[28] Ibid 240–1.
[29] Ibid 245.
[30] Constitution (Request) Bill 1999 (Vic).
[31] Neasey, above n 17, 256.
[32] Henry Reynolds, 'Inglis Clark: Some Afterthoughts', in Ely, above n 2, 396.