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Published online by Cambridge University Press: 24 January 2025
The Attorney-General: [Clark, told the Legislative Assembly that] … Sir Samuel Griffith, Mr Kingston and himself knew what they were doing. They went to work with their eyes open and he claimed part of the responsibility, or glory, or whatever they might call it.
Mr Dobson: A march towards republicanism.
The Attorney-General: said they could call it what they liked. If it was republicanism, then Sir Samuel Griffith was a good republican, and he was as good a one as he [Clark].
A report of the debate on the Draft Constitution in the Tasmanian Legislative Assembly. Hobart Mercury 18 August, 1897.
In addition to the anonymous reviewer I wish to thank the following people for their comments and suggestions on drafts of this article: Tom Courchene, Hayden Jones, Tony McCall, Christine Parker, Philip Pettit, Wendy Riemens, John Seymour and George Williams. I wish also to acknowledge my indebtedness to the University of Tasmania Archives and its staff, holders of the A I Clark Papers.
1 G Williams, “A Republican Tradition for Australia?” (1995) 23 FL Rev 133 at 143.
2 Ibid at 144.
3 Given the monarchical tributes which surrounded the Conventions there is little wonder that many delegates were circumspect in their advancement of republican themes. However, Glynn from South Australia did describe the Australian federation as a “crowned republic” at the Adelaide Convention of 1897. Official Record of the Debates of the Australasian Federal Convention, Adelaide 1897 (1897) at 73.
4 R Epstein, “Modern Republicanism- Or The Flight From Substance” (1988) 97 Yale LJ 1633 at 1634; C Sunstein, “Beyond the Republican Revival” (1988) 97 Yale LJ 1539; L Kerber, “Making Republicanism Useful” (1988) 97 Yale LJ 1663 at 1663-5; R Fallon, “What is Republicanism, and is it worth Reviving?” (1989) 102 Harvard LR 1695.
5 G Williams, above n 1 at 133.
6 C Sunstein, above n 4 at 1589.
7 Ibid.
8 Ibid at 1541.
9 Ibid at 1550.
10 Ibid at 1550.
11 J Warden, “The Fettered Republic: The Anglo-American Commonwealth and the Traditions of Australian Political Thought” (1993) 28 Australian Journal of Political Science 83 at 85.
12 “It is the Government's view that Australia's Head of State should be an Australian”:P J Keating, An Australian Republic the way forward (1995). The debate over the Head of State is, according to Galligan, of “only modest symbolic significance”: B Galligan, A Federal Republic (1995) at 5.
13 H Evans, “A Note on the Meaning of 'Republic"' (1992) 6(2) Legislative Studies 21;
G Winterton, “Presidential Power in Republican Australia” (1993) 28 Australian Journal of Political Science 40; G Maddox, “The Origins of Republicanism” (1992) 6(2) Legislative Studies 35; P Pettit, “Republican Themes” (1992) 6(2) Legislative Studies 29.
14 B Galligan, “Regularising the Australian Republic” (1993) 28 Australian Journal of Political Science 56; J Warden, above n 11.
15 J Braithwaite and P Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1990); J Uhr, “Instituting Republicanism: Parliamentary Vices, Republican Virtues?” (1993) 28 Australian Journal of Political Science 27; G Williams, above n 1.
16 P Pettit, “Our Republican Heritage” ABC Lecture 1 March 1994 at 3.
17 P Pettit, above n 13.
18 Ibid.
19 Ibid.
20 A Deakin, The Federal Story (1944) at 30.
21 J A La Nauze, The Making of the Australian Constitution (1972) at 12.
22 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 655. It is interesting to note that Clark's draft Bill contained no such saving provision.
23 Clark asked Wrixon, the delegate who proposed the removal of the saving provision,whether a person should be disqualified “[f]or ever?” Munro replied: “Yes”. Ibid.
24 Ibid at 657.
25 M Roe, “The Federation Divide Among Australia's Liberal Idealists” in M Haward and J Warden (eds), An Australian Democrat: The Life and Legacy of Andrew Inglis Clark (1995) 88 at 90. We are told by Burgmann that Tasmania absorbed 42 per cent of all convicts ntransported to Australia: V Burgmann, In Our Time (1985) at 137.
26 J Warden, “Calculating Happiness: Andrew Inglis Clark and Thomas Jefferson in Pursuit of the Republic” in M Haward and J Warden (eds), above n 25, 133 at 134.
27 A “modern” manifestation of this would be Dugan v Mirror Newspaper Ltd (1978) 142 CLR 583.
28 J Warden, above n 26 at 136.
29 Ibid. Davidson describes the rule of the Governors during the convict period as “despotic”: A Davidson, The Invisible State (1991) at 20. Neal, though not as forceful, concluded that the “[c]onditions for free people ... were also profoundly affected by its status as a penal colony.”: D Neal, The Rule of Law in a Penal Colony (1991) at 53.
30 R Ely, “The Tyranny and Amenity of Distance: The Religious Liberalism of Andrew Inglis Clark” in M Haward and J Warden (eds), above n 25 at 98.
31 There is an inscription inside the cover of the bound copy of the Quadrilateral at the Australian National Library. In it Beattie states: “The Quadrilateral was started by Andrew Inglis Clark, with whom were associated J.C. Witton, Edward Ivey, and William Burns. Witton wrote most of the poetry, and Clark the Constitutional and heavier articles. Ivey was 'Spiritualistic'. Burn did very little, leaving for Melbourne soon after the Paper was started. J.C. Writton was a chess problem writer in Tasmania.”
32 “Manhood Suffrage” (1874) 1(5) Quadrilateral 99 at 103.
33 “Hare's System of Representation” (1874) 1(11) Quadrilateral 249 at 251.
34 Ibid.
35 “The Education of the Masses” (1874) 1(10) Quadrilateral 242-4.
36 Mr Justice Nicholls, “The Struggle in Tasmania” in B R Wise Making of the Australian Commonwealth (1913) 349 at 351. It is worth noting that Clark was the Vice-Chancellor of the University of Tasmania from the 17 June 1901 until the 23 July 1903 and established the Faculty of Law with J B Walker and Dr W J Brown on the 14 March 1894.
37 H Reynolds, “Andrew Inglis Clark” in N Nairn, A Serle and R Ward (eds), Australian Dictionary of Biography (1966) 399 at 401.
38 A I Clark, “Natural Rights” (1900) 282 Annals 36; Woods to Clark, 20 July 1891; A I Clark Papers, C4/C380, University of Tasmania Archives, Hobart.
39 A I Clark, above n 38 at 41.
40 Ibid at 50. In hoc signo vinces means “Under this standard you will prevail.”
41 “Liberty” within the republican tradition has been described by Pettit as being “non domination”: P Pettit, above n 16.
42 “The Republican of Tasmania” was the description that Gasque! gave to Clark in a letter he wrote to him in 1898: Gasque! to Clark, 13 February 1898, A I Clark Papers, C4/C84, University of Tasmania Archives, Hobart.
43 Mercury, 16 July 1878.
44 Examiner, 26 July 1878.
45 G Williams, above n 1.
46 Under the heading “aristocracy” he included four examples: first, “hereditary aristocracy”where “all the governing power is deposited in the hands of the descendants of those who held it in the preceding generations; secondly, a form of “Timocracy” where “governing power is exclusively in the hands of the wealthy members of it; thirdly, “hereditary rulers”; and finally a system of appointed governorship. A I Clark, “Why I am a Democrat” A I Clark Papers, D38, University of Tasmania Archives, Hobart.
47 A I Clark, “The Evils of Monarchy”, A I Clark Papers, C4/F/4 b, University of TasmaniaArchives, Hobart. In this essay Clark cites Bryce's comments about the Australian Commonwealth in Studies in History and Jurisprudence (1901) Vol 1. Unfortunately Clark's essay on the monarchy is unfinished.
48 A I Clark, “The Evils of Monarchy”, A I Clark Papers, C4/F / 4 b, University of Tasmania
Archives, Hobart.
49 P Pettit, above n 13.
50 For example Clark's Letter to “Ted”, below n 75.
51 Examiner, 20 July 1878.
52 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 186.
53 Ibid at 323.
54 Ibid. When the Queen's telegram reached the Convention we are told that “Hon. membersgave three cheers for her Majesty the Queen” and then went to lunch. Ibid at 68.
55 Official Record of the Proceedings and Debates of the Australasian Federal Conference Melbourne 1890 (1890) at 112.
56 “Our Australian Constitutions” (1874) 1(3) Quadrilateral 56. “The adoption of such a plan of creating an Executive by any of the Australian Colonies would obviously render the office of Governor in that colony a nullity, and ultimately entail its abolition. But therein we see nothing to regret.” Ibid at 60.
57 A I Clark, above n 46.
58 Ibid.
59 Ibid.
60 C Sunstein, above n 4.
61 A I Clark, above n 46.
62 Ibid.
63 Ibid.
64 P Pettit, above n 13.
65 A I Clark, above n 46.
66 J Reynolds, “A.I. Clark's American Sympathies and his Influences on Australian Federation” (1958) 32 ALJ 62 at 63.
67 A I Clark, “Speech at American Independence Anniversary Dinner”, A I Clark Papers, C4/F 33, University of Tasmania Archives, Hobart. The speech is reprinted in J Reynolds, above n 66 at 62-3.
68 H Reynolds, above n 37 at 399-400. Parkes was Premier of NSW five times. For an account of the life of Parkes, see AW Martin, Henry Parkes (1980).
69 Master and Servant Act (51 Viet No 3, 1887) (Tas).
70 Trade Union Act (53 Viet No 27, 1889) (Tas); Employer's Liability Act (59 Viet No 25, 1895)(Tas). C Sunstein, above n 4 at 1573, states that “[m]any organizations - including labor unions ... - serve as outlets for some of the principal functions ofrepublican systems”.
71 Cruelty to Children Protection Act (59 Viet No 10, 1895) (Tas); Neglected Children & Youthful Offenders Act (60 Viet No 24, 1896) (Tas); The Guardianship of Infants Act (51 Viet No 5, 1897) (Tas).
72 Electoral Act (60 Viet No 49, 1896) (Tas). This is the Act that became known as the “Hare Clark” voting system.
73 Chinese Immigration Act (51 Viet No 9, 1887) (Tas).
74 For a fuller account of these issues, see S Bennett, “'These new-fangled ideas': Hare-Clark 1896-1901” in M Haward and J Warden, above n 25, 145. Clark had been a founding member of the Southern Tasmanian Political Reform Association in 1885.
75 Clark to “Ted”, 31 March 1891, A I Clark Papers, C4/C 218, University of Tasmania Archives, Hobart (emphasis added.).
76 P Pettit, “Liberalism and Republicanism” (1993) 28 Australian Journal of Political Science 162 at 171.
77 Ibid at 173.
78 A I Clark, above n 46.
79 Ibid.
80 Ibid.
81 A I Clark, above n 32.
82 Clark to Deakin, 27 August 1903, Deakin Papers, MS 1540/14/638, Australian National Library, Canberra.
83 A Deakin, The Federal Story (1963) at 32.
84 J Reynolds to M Howe, 10 March 1947,0 W Holmes Papers, Harvard Law School, Boston.
85 B R Wise, Making of the Australian Commonwealth (1913) at 75.
86 Wise to Barton, 13 January 1893, Barton Papers, MS 51/1/190, Australian National Library, Canberra. I am grateful to John Bannon for alerting me to the contents of this letter.
87 Surviving letters can be found in the A I Clark Papers and O W Holmes Papers.
88 Reynolds to Howe, 10 March 1947, 0 W Holmes Papers, Harvard University, Boston.
89 Many of Clark's constitutional thoughts are contained in the two editions of his workStudies in Australian Constitutional Law which appeared in 1901 and 1905. Clark distributed copies of the work amongst his contemporaries, including Deakin, Barton, O'Connor, Fysh and Kingston in Australia, as well as OW Holmes and J Thayer in the United States. Clark to Deakin, 20 October 1901, Deakin Papers, MS 150/14/611; Clark to Holmes, 26 October 1901 and 7 September 1905, All,0 W Holmes Papers, Harvard, Boston; Thayer to Clark, 3 December 1901, A I Clark Papers, C4/C 298, University of Tasmania Archives, Hobart.
90 A I Clark, above n 89 at 2. All references are to the first edition.
91 Ibid at 11.
92 Ibid at 11-12.
93 Ibid at 15-16.
94 Sir Owen Dixon, “Swearing in of Sir Owen Dixon as Chief Justice” (1951) 85 CLR xi at xiv.
95 Sir Anthony Mason, “The Role of the Judge at the Turn of the Century” AIJA, Melbourne 5 November 1993. In particular I refer to those passages which discuss the legal fiction of legalism and the consideration of policy and its impact in legal reasoning. On this development, see Mr Justice McHugh, “The Law-making Function of the Judicial Process”(1988) 62 ALJ 15 and 116 and G Williams, “Engineers is Dead, Long Live the Engineers!” (1995) 17 Syd L Rev 62.
96 For a fuller discussion of the question, see B Galligan, The Politics of the High Court (1987).
97 (1993) 124 ALR 1 at 50-1. Clark has received some judicial consideration: McGuinness v Attorney-General (Viet) (1940) 63 CLR 73 at 100 per Dixon J; Bank of NSW v Commonwealth (1948) 76 CLR 1 at 366 per Dixon J; The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 276-7 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; The Queen v Phillips (1970) 125 CLR 93 at 117 per Windeyer J; Attorney-General (Cth) v T & GMutual Life Society Ltd (1978) 144 CLR 161 at 189 per Murphy J; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 64 and 69 per Stephens J and at 154 per Brennan J; The Commonwealth v Tasmania (1983) 158 CLR 1 at 163 per Murphy J; Breavington v Godleman (1988) 169 CLR 41 at 133 per Deane J; Polyukhovich v Commonwealth (1991) 101 ALR 545 at 620 per Deane J and at 696 perMcHugh J; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 58 per Brennan J; Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 143 per French J; David Jones Finance &Investment Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 484 at 491-492 per Marling and French JJ.
98 (1993) 124 ALR 1 at 50 per Deane J, quoting A I Clark, Studies in Australian Constitutional Law (1901) at 21.
99 A I Clark, “Observations on the subject of Naturalisation under the Constitution of the Commonwealth”, Deakin Papers, MS1540/14/617, Australian National Library, Canberra.
100 Ibid.
101 G Williams, “Civil Liberties and the Constitution -A Question of Interpretation” (1994) 5 PLR 82. An early case R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 108, 109-110 and 119, establishes that there is an implied right for the Australian people to have access to government and the seat of government. Other such implied rights are suggested by J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 958-9.
102 Clark acknowleges Dicey's contribution to this question in A I Clark, Studies in Australian Constitutional Law (1901) at 4.
103 A Davidson, The Invisible State (1991) at xi.
104 A I Clark, “The Supremacy of the Judiciary under the Constitution of the United States, and under the Constitution of the Commonwealth of Australia”, A I Clark Papers, C4/F6, University of Tasmania Archives, Hobart. A later version of this article appeared in (1903) 17 Harv L Rev l. All references are to the manuscript held in the A I Clark Papers.
105 Ibid at 8.
106 P Pettit, above n 13.
107 A I Clark, above n 104 at 8.
108 Ibid at 28.
109 A I Clark, “The Constitution of the United States of America” (c1897), A I Clark Papers, C4/Fl, University of Tasmania Archives, Hobart.
110 B Galligan and J Uhr, “Australian Federal Democracy and the Senate” (1990) 1 PLR 309 at 309-10.
111 G Winterton, “The Separation of Judicial Power as an Implied Bill of Rights” in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185 at 187.
112 A I Clark, above n 109.
113 Ibid.
114 Official Record of the Proceedings and Debates of the Australasian Federal Conference Melbourne 1890 (1890) at 106.
115 A I Clark, Draft Federation Bill 1891, A I Clark Papers, C4/E 19, University of Tasmania Archives, Hobart. This clause is based upon Amendment X of the United States Constitution.
116 Clark to Deakin, 3 June 1901, Deakin Papers, MS 1540/14/60, National Library of Australia, Canberra (emphasis in original).
117 Official Record of the Debates of the Australasian Federal Convention Sydney 1891 (1891) at 588- 589.
118 Ibid at 250. The same point is discussed by J M Neasey, “Andrew Inglis Clark Senior and Australian Federation” (1969) 15(2) Australian Journal of Politics and History 1 at 12 and M Haward, “Andrew Inglis Clark and Australian Federalism”, in M Haward and J Warden, above n 25, 45.
119 Pedder v D'Emden (1903) 2 TLR 146 at 147 per Clark J. Clark also wrote to Deakin about the need to eliminate a jurisdictional limit of 300 pounds within the Federal Judiciary Bill as it would inhibit appeals by federal public servants whose wages were taxed Ly State governments: Clark to Deakin, 23 March 1903, Deakin Papers, MS 1540/14/1031, National Library of Australia, Canberra.
120 For a discussion of the sovereignty of the people within the Australian Constitution, see G Williams, “Approaches to Constitutional Interpretation” in C Saunders (ed), The Laws of Australia Vol 19 (1994) 79.
121 P Finn, “A Sovereign People, A Public Trust” in Essays in Law and Government Vol 1 (1995),1 at 2.
122 Ibid at 3 (footnotes omitted).
123 Ibid at 4.
124 J Thayer, “Review of Books and Periodicals” (1902) 15 Harv L Rev 419 at 421.
125 A I Clark, above n 89 at 166 (emphasis in original).
126 G Williams, above n 1.
127 Official Record of the Proceedings and Debates of the Australasian Federal Conference Melbourne 1890 (1890) at 111.
128 Clark to Barton, 19th June 1889, Barton Papers, MS 51/1/147, Australian National Library, Canberra.
129 Federal Council no doubt had convinced him that nothing short of a full union would achieve this end.129
130 Clark was a delegate to the 1888, 1889, 1891 and 1894 gatherings.
130 Clark travelled to the United States in 1897 and did not return until after the end of the Adelade session. The failure of his health can be attested to by a letter from his sister to him in 1897: McLaren to Clark, 17 March 1897, held by Dr A McLaren, Canberra. It should be noted that at least two delegates offered their positions so that Clark could represent Tasmania. However, he declined the offers.
131 J La Nauze, above n 21 at 78.
132 TC Just, Leading Facts Connected with Federation (1891). There is also a memorandum from Clark to Just regarding Canadian constitutional history in the A I Clark Papers, C4/C 221, University of Tasmania Archives, Hobart.
133 A I Clark, Draft Federation Bill 1891, C4/E 19, A I Clark Papers, University of Tasmania Archives, Hobart. As well as the Draft Bill, Clark circulated his “Confidential” Memorandum which outlined the assumptions upon which the Bill was constructed. The Letters to Barton and Parkes are included in J La Nauze, above n 21 at 24. Higinbotham to Clark, 8 March 1891, A I Clark Papers, C4/C206 University of Tasmania Archives, Hobart. In this letter Higinbotham disagreed with Clark's characterisation of the Queen as part of the Executive in regard to Imperial disallowance.
134 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 242.
135 Ibid (emphasis added).
136 Ibid at 256.
137 A I Clark, “Confidential” Memorandum, above n 133 at 1.
138 Clark's Draft allowed for Imperial disallowance under Clause 57.
139 L Nauze, above n 21 at 273.
140 Ibid at 273.
141 Barton to Clark, 14th February 1898, A I Clark Papers, C4/C15, University of Tasmania Archives, Hobart. Clark sent a telegram to Barton advising against the striking out of the power of the High Court to issue writs of mandamus and prohibition against officers of the Commonwealth.
142 Official Record of the Proceedings and Debates of the Australasian Federal Conference, Melbourne 1890 (1890) at 114. From the text it is not clear whether or not Lee Steere appreci.rted the pun.
143 Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898 (1898) at 691. This, of course, did not stop him voting against parts of Clark's amendment prior to this declaration.
144 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 244.
145 Section 64 of the Australian Constitution would make that wish now impossible.
146 Hackett, Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 1891) at 280.
147 “Our Australian Constitutions” (1874) 1(3) Quadrilateral 56 at 58 (emphasis in original).
148 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 245.
149 A point made also by H Reynolds, above n 37 at 400. This is based on a letter from Hignbotham to Clark, 8 March 1891, A I Clark Papers, C4/C206, University of Tasmania Archives, Hobart.
150 A I Clark, “Confidential Memorandum”, above n 133 at 5.
151 J M Neasey, above n 118 at 9-10.
152 A copy of Clark's draft Constitution appears as an appendix in J Reynolds, above n 66.
153 La Nauze, above n 21 at 24, states that Clark drafted the Bill on his return from the United States and England “with the technical aid of WO Wise the parliamentary draftsman”.
154 M Neasey, above n 118 at 7-8.
155 He provided for the integrity of “provincial” boundaries with Clause 47.
156 Clark also provided for their disqualification on the basis of absence, their “allegiance, obedience or adherence” to a foreign power, bankruptcy or conviction of a felony (Clause 23 and 35) and holding an office of profit under the Crown (Clause 90).
157 Section 100.
158 He wrote an article on this obscure issue: A I Clark, “The Location of the Federal Capital in the United States” (1905-6) 13 Commonwealth Law Review 115-123.
159 J M Neasey, above n 118 at 12.
160 Clark to Griffith, 3 March 1891, Dixson Library, Sydney, MSQ 187, 824-27.
161 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 253.
162 C Sunstein, above n 4 at 1561-1562.
163 Clark's entrenchment of the High Court was removed during the famous voyage of the Lucinda during the Easter weekend of 1891. Clark later described how the Drafting Committee “took it into their heads to tinker with the Bill” and how they had “messed it”: Mercury, 17 August 1897. The provisions were restored by 1897.
164 B K de Garis, “The Colonial Office and the Commonwealth Constitution Bill” in A Martin (ed), Essays in Australian Federation (1969) 94 at 117.
165 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 254.
166 Ibid.
167 Clark to Deakin, 24 March 1902, MS 1540/14/626, Deakin Papers, Australian National Library, Canberra.
168 Clark to Deakin, 27 August 1903, MS 1540/14/628, Deakin Papers, Australian National Library, Canberra. In this belief, Clark had the support of Griffith, who wrote to Clark in 1900 stating, “I have very little respect for the P C, as now constituted. They often fail to deal with the real point in the case at all”, Griffith to Clark, 9 August 1900, A I Clark Papers, C4/C 190, University of Tasmania Archives, Hobart.
169 Mercury, 11 August 1897, quoted in J Reynolds, above n 66 at 67, reported in the Mercury 168 Reports, 12 July 1889 (1. 392).
170 See the “Comparative Table” in J M Neasey, above n 118 at 23.
171 For a discussion of the important guarantee that trial by jury offers within the republican tradition see J Braithwaite and P Pettit, above n 15 at 120-122 and C Sunstein, above n 4 at 1562-1563.
172 Section 5 states that: “The Attorney-General may proceed by information until juries are constituted - Until further provision be made as hereinafter directed for proceeding by juries, all crimes, misdemeanours, and offences, cognisable in the said courts respectively, shall be prosecuted by information...”
173 La Nauze notes that the change may be found in Griffith's Draft: above n 21 at 228. However, the change also appears in the Report of the Judicary Committee which Clark chaired at the 1891 Sydney Convention. See “Report from the Committee on the Establishment of a Federal Judiciary; Its Powers and Functions” Official Record of the Proceedings and Debates of the National Australasian Convention, Sydney 1891, (1891) Appendix Cat clxv.
174 Official Record of the Debates of the Australasian Federal Convention, Sydney 1891 (1891) at 252.
175 C Sunstein, above n 4 at 1562.
176 Ibid at 1555, footnote 85.
177 “Proposed Amendments to the Draft of a Bill to Constitute the Commonwealth of Australia”, Australian Archives Mitchell, Series R216, Item 310 at 4.
178 Ibid.
179 J La Nauze, above n 21 at 229-230. The voyage was ill-fated in three senses. Clark was sick 163 in bed with influenza until the Sunday. The Lucinda was hit by a swell which caused an outbreak of sea sickness and finally (in Clark's eyes) changes that were made to the draft Bill in his absence “messed it”. For an account of these events see ibid 64-68.
180 Ibid at 229.
181 The Convention did, however, change its numbering from cl 109 after Adelaide 1897 and to cl 110 in Melbourne 1898.
182 Mercury, 19 August 1897. This amendment also appears in “Proposed Amendments to the Draft of a Bill to Constitute the Commonwealth of Australia”, Australian Archives Mitchell, Series R216, Item 310 at 4.
183 Barton to Clark, 14th February 1898, A I Clark Papers, C4/C15, University of Tasmania Archives, Hobart. Barton told Clark that, “The Papers will have told you that your notes were laid by me on the table of the Convention and ordered to be printed. The paper is regarded as a very valuable one, and by it you have added to your many services to the cause of Federation.”
184 “Proposed Amendments to the Draft of a Bill to Constitute the Commonwealth of Australia”, Australian Archives Mitchell, Series R216, Item 310 at 4.
185 Ibid.
186 Ibid at 4-5.
187 New South Wales and Tasmania wished to omit the words “make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State.” Victoria wished to insert after “Commonwealth” the words “or impairing the obligation of contract”.
188 Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898 (1898) at 665.
189 Ibid.
190 Sir Isaac Isaacs, Victorian Delegate to the Conventions (1897-1898), Attorney-General of Victoria (1900), High Court Justice (1906-1930), Chief Justice (1930), Governor-General of Australia (1931-1936).
191 Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898 (1898) at 668.
192 Slaughterhouse cases (1872) 16 Wallace 36. Clark had written in glowing terms about the judgment of Justice Miller and how it had “enriched the jurisprudence of America and England”: A I Clark, “The Constitution of the United States of America”, A I Clark Papers, C4/Fl, University of Tasmania Archives, Hobart.
193 Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898 (1898) at 669.
194 On the suggestion of Wise, only the words “The citizens of each state” were put as a means of testing support for the general amendment. Ibid at 685.
195 With these words omitted the clause now read “A State shall not nor shall a State deny to any person ... “ this was described by the Chairman (C Baker) as now being a “non-sense”: ibid at 690. Glynn then moved that the words “nor shall a State” be struck out (at 690). This was agreed to (at 691). A further attempt was made to amend the clause, inserting the words “to the citizen of other states the privileges and immunities of its own citizens”. This was not agreed to and what was left of the clause was struck out (at 691).
196 Clark to Wise, 13 Febuary 1898, Wise Papers, MS 1708, Australian National Library, Canberra.
197 Clark to Wise, 20 Febuary 1898, Wise Papers, MS 1708, Australian National Library, Canberra.
198 A Deakin, above n 20.
1991 As has been argued above, it is debatable whether many of the delegates to the various Conventions had more than a cursory knowledge of alternative governmental arrangements. In endorsing the majority of the provisions in Clark's draft Bill, they did so, it is argued, without appreciating the republican theory upon which Clark had based them.
200 G Williams, above n 1 at 144.
201 P Pettit, “Liberalism and Republicanism”, (1993) 28 Australian Journal of Political Science 162.
202 Sir Owen Dixon, Jesting Pilate (1965) at 102.
203 Theophanous v Herald & Weekly Times Ltd (1993) 124 ALR 1 at 50-1 per Deane J quoting 203 A I Clark, Studies in Australian Constitutional Law (1901) at 21.
204 Sir Garfield Barwick, “Parliamentary Democracy in Australia” paper delivered to the Sydney meeting of the Samuel Griffith Society, 2 April 1995 at 14.