The Honourable Justice Peter Heerey, Constitution Founders Lecture – Andrew Inglis Clark: The man and his legacy

Some years ago I was talking with one of Australia’s leading silks, a man with a huge High Court practice. He cheerfully admitted to never having heard of Andrew Inglis Clark. I shall not otherwise identify him, except to say that he comes from the mainland. Since then general awareness of Clark has improved somewhat. He was included on the commemorative five dollar note issued at the time of the centenary of Federation, along with Barton, Forrest, Deakin, Kingston, Griffith and Parkes. Hopefully this paper will constitute a modest contribution to his overdue recognition.Justice Peter Heerey gratefully acknowledges the assistance of his Associate Nikki Macor in preparing this paper. Parts of the paper have previously appeared in ‘Andrew Inglis Clark, Australian Federation and the Tasmanian Club’, The New Federalist, vol. 100, no. 3, 1999, and the foreword to FM Neasey and LJ Neasey, Andrew Inglis Clark, University of Tasmania Law School, 2001.

Clark’s towering achievement is the role he played in the making of our Commonwealth Constitution. After saying something about that I shall, with fine disregard for chronological organisation, look at his earlier life and, very briefly, some of the many faces which he presented: politically liberal, democratic, nationalist, federalist, Americanophile, republican, literary.Richard Ely, ‘Person and Personae; New light on Andrew Inglis Clark from some old documents’, The New Federalist, vol. 77, no. 2, 1998, p. 78.

At first blush the history of Australian Federation presents as a somewhat boring inevitability. We see black and white photographs of the founding fathers, mostly bearded, and, needless to say, middle-aged, middle class, white, male Anglo-Celtics. No wars, no revolutions, no Bastille, no Washington or Garibaldi. Only the ceremony at the Melbourne Exhibition Building immortalised in the painting by Tom Roberts.

Yet the reality was quite different. There were obstacles, many lions in the path to use the famous metaphor of the day, which must have seemed very formidable at the time. How were the powers of the large States and the small States to be balanced? How to resolve the conflict between free trading New South Wales and protectionist Victoria? This issue in particular provoked spirited debate. Sir George Reid argued that

…the final proof of the superiority of free trade over protection was that it had produced fewer lunatics to the square mile in New South Wales than had protection in Victoria.CMH Clark, Select Documents in Australian History 1851–1900, Angus & Robertson, Sydney, 1955, p. 97, quoted in B Matthews, Manning Clark: A Life, Allen & Unwin, Sydney, 2008, p. 134.

There must have been many at the time who would have looked at the difficulties of federation and used a variant of the depressing modern cliché, 'If it aint broke, don’t fix it'.

Underlying the achievement of federation was that distinctive Australian mixture of idealism and earthy pragmatism, memorably caught in the words of a Tasmanian delegate to one of the constitutional conventions of the 1890s:

Gentlemen, if you vote for the Bill you will found a great and glorious nation under the bright Southern Cross, and meat will be cheaper…BR Wise, The Making of the Australian Commonwealth, 1889–1900, Longmans Green, 1913, p. 356.

After the 1890 conference of colonial representatives Clark prepared a draft which was the basis for discussion at the Sydney convention of 1891.

Modern scholars agree that the first recognisable version of the Constitution we have today came from the pen (and also, true to say, the scissors and paste-pot) of Andrew Inglis Clark. That was the conclusion of Professor La Nauze in his classic work The Making of the Australian Constitution.Melbourne University Press, Melbourne, 1972, p. 75. The biography by the late FM Neasey and his son LJ Neasey supports La Nauze’s conclusion.Andrew Inglis Clark, University of Tasmania Law School, Hobart, 2001. No less an authority than Sir William Deane, when a member of the High Court in the leading constitutional case Theophanous v Herald & Weekly Times Limited,(1994) 182 CLR 104 at 172 after quoting a lengthy passage from Inglis Clark’s work Studies in Australian Constitutional LawCharles F Maxwell, Melbourne, 1901.referred to Clark quite simply as 'the primary architect of our Constitution'. Recently Justice Michael Kirby has written:

... in the daily work of the High Court, over the century of its existence, the brooding spirit of Andrew Inglis Clark has never been far away. It was Clark who wrote the first draft of what became the Australian Constitution. Anyone in doubt can read his proposed Bill alongside our enduring constitutional document. The similarities are profound. In a sense, Clark bears out VI Lenin’s dictum that the person who writes the first draft rules the organisation. Clark put down the initial ideas for Australia’s national governance. The end product never strays far from his inspiration.‘Three Tasmanian Law Reformers’, University of Tasmania Law Review, vol. 23, no. 1, 2004, p. 1.

It was Clark who laid down the basic structure of our Constitution which combines the American separation of powers with the Westminster system of responsible parliamentary government. Of course there was the precedent for such a combination in the British North America Act 1867 (Imp) which established the constitution of Canada. But Clark was responsible for our Constitution being much more like the American than the Canadian. His profound understanding of American constitutional law was unmatched by any other Australian.

At the 1898 Convention debate arose as to whether the clause which later became s. 75(v) should be struck out. Clark, following proceedings closely from Hobart, telegraphed Barton to remind him of the United States Supreme Court decision in Marbury v Madison. Barton wrote back thanking Clark and saying:

None of us had read the case mentioned by you, or if seen it had been forgotten – it seems to be a leading case. I have given notice to restore the words on reconsideration of the clause.Barton to Clark, 14 February 1898, Clark papers, University of Tasmania Archives, C 4/C 15, cited in Neasey and Neasey, op cit, p. 195.

The clause was duly restored by Barton, citing the American decision – although without public acknowledgement of Clark. 'None of us' must presumably have included Griffith, Kingston and Deakin.

The British North America Act was enacted only two years after the end of the American Civil War which had dramatically demonstrated the perils of secessionism in a federation. So there was much concern not to give the Canadian provinces too much power. Thus on paper the Canadian constitution was markedly centralist. Generally speaking, the provincial legislatures were given specified powers and the federal parliament was given everything elseConstitution Act, 1867, Part VI Distribution of Legislative Powers, ss 91-95. With the patriation of the Canadian Constitution in 1982, the British North America Act, 1867 (UK) was renamed the Constitution Act, 1867 (UK). – the reverse of our constitutional distribution of powers. The federal government was given power to disallow provincial lawsConstitution Act, 1867, s 90. and appoint the provincial governors and judges.Constitution Act, 1867, ss 96. However, as a consequence of political pressures and constitutional litigation in both countries, the situation has been reversed. Partly as a result of decisions of the Privy Council,Hodge v The Queen (1883) 9 App Cas 117 (provincial legislative powers as plenary and ample as imperial Parliament); Liquidators of the Maritime Bank v Receiver General of NB [1892] AC 437 (provincial legislative powers match legislative powers). which for example gave the external affairs power the opposite construction to that which the High Court gave the comparable Australian power in the Tasmanian Dam case,(1983) 158 CLR 1. and partly to appease secessionist sentiment in Quebec, the Canadian constitution in operation has become highly decentralised.

At a more fundamental level, the genesis and character of our Constitution was more explicitly popular and democratic than the Canadian. This was largely as a result of a long forgotten event, involving Clark, to which I shall shortly refer.

Clark’s draft also established the High Court as an entrenched feature of the Constitution itself, like the United States Supreme Court and unlike the Supreme Court of Canada, which is a creature of the Canadian Parliament.Supreme and Exchequer Courts Act, 1875, SC 1875, c 11 (now Supreme Court Act RSC 1985 c S-26), exercising the power conferred in Constitution Act, 1867, s. 101. This entrenchment was removed by the drafting committee in 1891 during their famous cruise on QGSY Lucinda while illness confined Clark to his bed in a Sydney hotel. Clark was outraged and later, with the fervour of a true wordsmith, described how the committee 'took it into their heads to tinker with the Bill' and how they had 'messed it'.John M Williams ‘With Eyes Open: Andrew Inglis Clark and Our Republican Tradition’, Federal Law Review, vol. 23, 1995, p. 172. The clause was restored in 1897.

The draft of what was to become s. 71, as altered on the Lucinda, provided merely that the Parliament 'shall have power to establish a Court, which shall be called the Supreme Court of Australia'Hon MEJ Black, ‘…Such other federal courts as the Parliament creates: 100 years of evolution’, Monash University Law Review, vol. 30, no. 1, 2004, p. 2.

Clark’s draft, in the form finally accepted, also provided for a federal judiciary under the High Court. This concept was implemented as early as 1904 with the establishment of the Commonwealth Court of Conciliation and Arbitration,Conciliation and Arbitration Act 1904 (Cth), s. 11. followed in 1930 with the Federal Court of BankruptcyBankruptcy Act 1930 (Cth), s. 4. and in the mid-1970s with the Federal Court and the Family Court.See generally Black, op cit. This rather complex history, including the hostility occasionally aroused in some legal and political circles, has been the subject of a recent illuminating article in the Australian Law Journal by Hon Robert Ellicott QC, a former Commonwealth Attorney-General and Federal Court Judge.‘The Autochthonous Expedient and the Federal Court’, Australian Law Journal, vol. 82, 2008, p. 700.

To make a few points:

  1. The text and structure of Chapter III, and in particular ss. 71, 72, 73 and 77, explicitly provide for a system of federal courts alongside existing state courts.
  2. The contemporary view, if Quick and Garran are to be believed, was that s. 77(iii), providing for the investing of federal jurisdiction in state courts, was a means for parliament to dispense ‘at the outset’ and ‘in the early years’ with the creation of any federal courts other than the High Court.Black, op cit, p. 7, citing Quick and Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, pp. 803-804.
  3. The mysterious adjective ‘autochthonous’The Queen v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 268. means ‘aboriginal’ or ‘indigenous’ (Macquarie) or ‘one sprung from the soil he inhabits’, an ‘original inhabitant or product’ (Shorter Oxford). So while it speaks of origin it doesn’t suggest permanence, still less dominance.
  4. If anything aggravates judges more than having too much work to do, it is seeing that work go to another court.
  5. That is subject to the work being ‘quality’,Ellicott, op cit, p. 708. that is to say, glamorous and interesting. Presumably bankruptcy was not seen as such, hence the establishment of the Federal Court of Bankruptcy because the Supreme Courts of New South Wales and Victoria were ‘unable to handle the volume of bankruptcy business’.Hon Peter Durack, ‘The Special Role of the Federal Court of Australia’, Australian Law Journal, vol. 55, 1981, p. 778. Nor was family law. The Family Law Act 1975 (Cth) contained provisions enabling federal jurisdiction in family law to be vested in state courts set up by the states but paid for largely by the Commonwealth. Despite what Mr Ellicott describes as his ‘extensive lobbying’ of all the state attorneys-general, all states except Western Australia refused to take up this offer.Ellicott, op cit, p. 711.
  6. This somewhat selective enthusiasm for the conferring of federal jurisdiction on state courts suggests that s. 77(iii) is not to be placed, like Galileo’s Sun, at the centre of the Chapter III universe.

To return to Clark’s draft, he was less successful with a clause designed to replicate the equal protection clause of the United States Bill of Rights – the Fourteenth Amendment, introduced after the Civil War. The main opponent was Isaac Isaacs, who told the convention that the Fourteenth Amendment was

rammed down the throats of the southern states by the military provision in order to give persons of African descent the privileges and immunities of citizenship… It was intended to protect the blacks. Nobody denied these rights to the whites.Ellicott, op cit, p. 711.

But apart from Clark’s role as a draftsman, there was his involvement in the event to which I have already referred. It occurred in Hobart in January 1895.

There was a body, now almost forgotten, called the Federal Council of Australasia. It was established under an Act of the Imperial Parliament in 1885 and given power to make laws for the Australasian colonies. It met spasmodically over the ensuing years, always in January and almost always in Hobart. This tradition of Hobart as an Australasian meeting place led to some early suggestions that it might become the capital of the Australian federation. An intriguing thought.

Apart from some fisheries legislation, the Federal Council of Australasia never achieved much. New South Wales never became a member, mainly it seems because Victoria thought of the idea first, and South Australia attended only one meeting. Nevertheless at the sixth session of the Council in Hobart in January 1895 the opportunity was taken to convene a meeting of the Colonial Premiers. By this time the movement towards federation had rather gone off the boil. The suggestion for the Premiers’ meeting was that of Andrew Inglis Clark, then Attorney-General in the Braddon government. This meeting was attended by all the Premiers, including George Reid of New South Wales and Charles Kingston of South Australia.

The meeting convened at the Chief Secretary’s office and the Tasmanian Premier Braddon was made chairman of the conference. It had no formal status, no record of proceedings was kept beyond a bare summary of resolutions, and the key session conducted on Thursday 31 January 1895 was held in the privacy of the Tasmanian Club, a charming Georgian building in Macquarie Street.George Brown, unpublished monograph, cited in Heerey, op cit, p. 102.

At 10.30 that evening Reid made an announcement to the press that a convention would be held consisting of ten representatives from each colony chosen by its electors. The convention would be charged with the duty of forming a federal constitution to be submitted to the electors for acceptance or rejection by a direct vote. George Brown, op cit, p. 102.

This meeting can therefore be seen as a critical step which was to stamp our Constitution with a democratic character – it was to be prepared by popularly elected delegates and approved by the electorate at large. It was to be more than an inter-governmental pact.

A fundamental feature of Australian Federation was its character as a popular democratic movement. The Constitution’s preamble recites that ‘the people’ of the various colonies ‘have agreed to unite in one indissoluble Federal Commonwealth’. All this was in marked contrast to the Canadian constitution which was, and to a large degree remains, a ‘confederation’ of the governments of the various provinces.

Oddly enough this dinner has disappeared from that grab bag of records and recollections, legends, myths and theories we call history. La Nauze does not mention it.La Nauze, op cit. When the Tasmanian Club historian George Brown was researching the matter, he found that even the Club’s minute books for the period had disappeared. In many ways Australians are very neglectful of our history. If such an event had happened in the course of the history of the American Constitution, the Club would be a national shrine. At the very least there would be regular historical enactments, with tasteful t-shirts and coffee mugs.

After the 1891 Convention Clark’s involvement was greatly reduced. He did not attend the 1897 and 1898 Conventions, partly because he had a long-standing commitment to take his family on a voyage to Europe and the United States, and partly as an attempt to recover from persistent ill health.

The remainder of Clark’s life was in some ways anti-climactic. He was appointed to the Tasmanian Supreme Court in 1898. In 1903 he was tentatively offered a seat on the High Court but parliament cut the number of judges from five to three. He was again passed over when the High Court Bench was enlarged in 1906. He had never enjoyed robust health and died in November 1907.

I shall now say a little about Clark’s life and times apart from the great adventure of Federation.

He was born in 1848, the eighth of nine children of Alexander Russell Clark and his wife Ann Inglis. They had emigrated to Van Diemen’s Land from Scotland in 1832. Clark senior was an engineer. His most significant achievement was the design and supervision of construction of the granary and flour mill at Port Arthur. The building later became the penitentiary, the ruins of which are still Port Arthur’s most prominent architectural feature.Alex C McLaren, ‘Andrew Inglis Clark’s Family and Scottish Background’ in Richard Ely ed, A Living Force, University of Tasmania, 2001, pp. 14, 19. The author was formerly Professor in the Research School of Earth Sciences at the Australian National University and is a grand-nephew of Andrew Inglis Clark.

Remarkably for those cruel times, although Clark senior had a large body of convicts under his control, he never ordered a flogging. For this he became some thing of a legend in Hobart and as an old man he was frequently hailed as:

Auld Sandy Clark who never gave a lag the cat.John Reynolds, ‘The Clarks of “Rosebank”’, Tasmanian Historical Research Association Papers and Proceedings, vol. 4, no. 1, January 1955, p. 5.

Andrew Inglis Clark was five years old when transportation ceased. As a young man he must have known many ex-convicts. Quite a few, one can surmise, would have been still alive at the time of Federation. A disproportionate number of all convicts transported to Australia were sent to Van Diemen’s Land, some 42 per cent according to one estimate.V Burgmann, In Our Time, 1985, p. 137, cited in Williams, op cit, p. 152. Professor Michael Roe has remarked that for

Clark and other Tasmanians one appeal of federalism was its promise to bury convictism.‘The Federation Divide Among Australia’s Liberal Idealists’ in Haward and Warden eds, An Australian Democrat: The Life and Legacy of Andrew Inglis Clark, 1995, p. 90.

Professor Henry Reynolds has noted the two distinctive features of the Tasmanian society in which Clark grew up: the emancipist working class, and the landed gentry in the great estates of the Midlands. As such Tasmania, more than anywhere else in the Australian Colonies, showed signs of developing caste-like characteristics with the emancipists and their descendants ‘forever branded with the hated stain’.‘Inglis Clark: Some Afterthoughts’ in Ely, A Living Force, op cit, p. 397. Fear of moral corruption believed to be associated with convicts led to a social life dominated by snobbery and middle class respectability, and a subservient and conservative working class which offered little challenge to the social, economic and political domination of free settlers and their descendants.Display at the Tasmanian Museum and Art Gallery. Clark’s experience of such a society must have been a powerful incentive to his desire to see, as he said in his unpublished essay Why I am a Democrat,

the abolition of every institution that confers political power or personal privilege as an appendage to birth from a particular parentage.Cited in Haward and Warden, op cit, p. 202.

Family genealogy has now become a popular pursuit and convict descent is seen as a real cachet. However, as recently as the 1940s and 1950s, when I was growing up in Hobart, convict ancestry was not something to be proud of. There were probably many grandchildren of convicts still alive. Someone born in, say, 1820 and transported to Van Diemen’s Land in the 1840s could have become a parent in 1860. That child in turn might have had a child in 1900. I might have seen such a grandchild of convicts, who would only have been in his or her late 40s when I was trudging up Barrack Street to St Virgil’s. Certainly I recall dark rumours of pages missing from original convict records because they happened to contain surnames prominent in Hobart society. Because of poor health, which plagued him all his life, Clark was educated at home by his mother until he was eight. He was apprenticed to the family firm and qualified as an engineer. At age 24 he commenced articles. He was called to the Bar in 1877.Henry Reynolds, ‘Clark, Andrew Inglis (1848-1907)’, Australian Dictionary of Biography, vol. 3, Melbourne University Press, 1969, p. 399. He built up a successful practice, having first won attention in a poisoning murder trial. According to contemporary reports he became the leader of the Tasmanian Bar.Examiner, 2 June 1898; Mercury, 6 July 1898; cited by Petrow, ‘Clark as Attorney- General’, in Ely, A Living Force, op cit, p. 42. Much later he had a brief to appear in the Privy Council. The case settled, but not before Clark formed a most unfavourable impression when observing their Lordships in action, or rather inaction. As Justice Kirby notes: The sight of their Lordships asleep on the bench after lunch, so far from his home with its own unique society, convinced him that Australian cases should finish in Australia.Kirby J, op cit, p. 3. Abolition of Australian appeals to the Privy Council was one of the many causes Clark presciently urged. Clark had a lifelong fascination with the United States of America. This commenced in his teenage years when Tasmania, along with the rest of the world, became absorbed in the American Civil War. It was a cataclysmic clash between what were then the two largest armies in the world. There were substantially more casualties in the Civil War than in any other war in which Americans have fought, from the Revolutionary War to Iraq and Afghanistan. Deaths ultimately amounted to almost two per cent of the total American population at the time. In England and, inevitably following England’s lead, in the Australasian Colonies, there was much support for the South. The Hobart Mercury was particularly hostile to the Union cause. In reporting Lincoln’s Second Inaugural, it somehow managed to omit any mention of his famous speech and concentrated on some aberration of Vice President Andrew Johnson, reported under the headline ‘Vice President Drunk or Crazy’.The Mercury (Hobart), 8 June 1865, cited in Neasey and Neasey, op cit, p. 22. Enthusiasm for the ideals of the American Republic never died for Clark. He and friends would hold dinners on the 4th of July and toast the Republic. In his home he kept the Stars and Stripes in an honoured place, along with a portrait of Mazzini, the leader of the Italian Risorgimento. He visited America three times and struck up a friendship with the great American jurist Oliver Wendell Holmes Jnr with whom he corresponded. In 1903, the Harvard Law Review, then as now the premier academic legal journal in America, if not in the common law world, published a substantial article by Clark on the Australian Constitution entitled ‘The Supremacy of the Judiciary under the Constitution of the United States, and under the Constitution of the Commonwealth of Australia’.(1903) 17 Harvard Law Review 1. The vogue for catchy titles in academic publications had not yet caught on.

Clark was active in the intellectual life of Hobart. He edited a journal called Quadrilateral which covered such diverse topics as John Stuart Mill, constitutional law, electoral reform, spiritualism, Walt Whitman, phrenology, cats and chess.Williams, op cit, p. 153.

Clark’s prose style is earnest and ornate, even by late Victorian standards. In the words of Professor Richard Ely, who has edited some of his work, Clark’s prose ‘can become awesomely tangled’.Haward and Waden, op cit, p. 199. Certainly it contrasts with the vigorous vernacular clarity of Oliver Wendell Holmes.

He left some forty-three poems, only a few of which were published, unsigned, in Quadrilateral.Richard Ely, ‘Inglis Clark’s Poetry’ in Ely, A Living Force, op cit, p. 186. They are rhythmically disciplined, often with a melancholy or elegaic theme, mostly of a personal and intimate nature. Some reflect his national, republican aspirations, as in an ode to the Australian banner:

Its stars flash in the sun,
Its ample folds proclaim,
That thou art sovereign of thyself
Sole guardian of thy fame.Ely, ‘Inglis Clark’s Poetry’, op cit, p. 199.

Clark had an active career in Tasmanian politics. He first entered Parliament in 1878 when he won the seat of Norfolk Plains. Perhaps ironically for someone who became so involved in electoral reform, this was a northern Tasmanian seat, said to be a pocket borough in the gift of a local grandee, one Thomas Reibey. The Mercury, which was to prove a lifelong critic, said that Clark’s ‘proper place was amongst the Communists’.Henry Reynolds, op cit, p. 399. At a time not long after the excesses of the Paris Commune, this was no light jibe.

Clark served as Attorney-General in the periods 1887 to 1892 and 1894 to 1897. In his first ministerial term he introduced 150 bills, most of which he drafted personally, only one less than Sir Henry Parkes during his whole career.Henry Reynolds, op cit, p. 399. They included bills amending the Master and Servant Act to improve conditions for labourers, legalising trade unions, reforming local government and introducing child protection laws.

Clark’s name is perpetuated in the Hare-Clark system of proportional representation, a system designed to give parliamentary representation to different strands of political opinion and thus provide a counter to majoritarian tyranny. Clark developed the system originally devised by the English barrister Thomas Hare and first published in 1859.Malcolm Mackerras, ‘The Operation and Significance of the Hare-Clark Electoral System’, in Haward and Warden, op cit, p. 169. The Hare-Clark system, as it has operated in Tasmania, may at time exact a price of governmental instability. As Professor Herr has remarked:

The Hare-Clark electoral system is more highly supported when it does not achieve its philosophical aims than when it does.‘Hare-Clark: The Electoral Legacy’, in Haward and Warden, op cit, p. 181.

In the early 1890s Clark played a leading role in the foundation of the University of Tasmania, the fourth oldest university in Australia, after the universities of Sydney, Melbourne and Adelaide. It was no accident that the University, unlike its Australian predecessors and the great United Kingdom universities, was, contrary to Clark’s urging, not named after a city, in this case the city of Hobart. MPs from northern Tasmania opposed the establishment of the University with what a contemporary called ‘a most determined and violent onslaught’.James Backhouse Walker, quoted in Davis, ‘Inglis Clark and the Foundation of the University of Tasmania’, in Ely, A Living Force, op cit, p. 173. Identification with the whole of the island was seen as an essential appeasement.

Clark’s public persona comes down to us in a famous description by Alfred Deakin of him as ‘small, spare, nervous, active, jealous and suspicious in disposition and somewhat awkward in manner and ungraceful in speech’.Alfred Deakin, The Federal Story, Robertson & Mullens, Melbourne, 1944, p. 30. Not a particularly attractive picture, although Deakin did add that Clark was ‘nevertheless a sound lawyer, keen, logical and acute’. In any event, there is much evidence which goes to rebut the Deakin assessment. According to Professor Townsley, Clark ‘loved the company of his fellow man who had something of interest to say, irrespective of their station in life’.Frank C Green ed, A Century of Responsible Government in Tasmania 1856 - 1956, L G Shea Government Printer, Hobart, 1956, p. 178. Although a ‘non-smoker and non-drinker’,John Reynolds, op cit, p. 8. he held informal smoking parties in his library and for some unaccountable reason was known to his younger followers as ‘the Padre’.Neasey and Neasey, op cit, p. 38. An old friend, Alexander Hume, published a reminiscence of Clark which appeared in the Launceston Daily Telegraph shortly after Clark’s death. As a friend of 40 years, Hume said of Clark:

As a man and a firm friend, Andrew Clark was all that could be wished. He never deserted an old friend, no matter how far apart they were divided by social surroundings. Many a man in this community has reason to bless the time that he secured him for a friend. He was a conversationalist of the first order of merit, and when one chatted with him round his own fireside one found out the richness of his strata of literary knowledge. He had a large circle of friends who will not easily forget him.Ely, ‘Person and Personae’, op cit, p. 78.

As a husband, and father to a large family of seven children, he was devoted and affectionate. An American visitor to the home noted that Clark was ‘never too busy to mend a toy for a child’,Henry Reynolds, op cit, p. 401. a fine thing to be said of any father. His son Carrel Inglis Clark, writing in 1923, gives a touching vignette of his father at Rosebank, the family home in Hampden Road, Battery Point. Clark was worried about the prospects of his son, who had left school without passing any public examination. Carrel writes:

He persuaded me (I can see him now with his arm upon my shoulder pacing around the Rosebank asphalt paths in his slippers with a light stone cap) that with my fondness for history and poetry, I should join the press.Carrel Inglis Clark, quoted by David Maclean, review of The Supreme Court of Tasmania: Its First Century 1824-1924, Australian Law Journal, vol. 72, p. 315.

Perhaps the media of those days was more cultured than it is now, or perhaps this was an example of Clark’s belief in the Unitarian concept of the ‘essential virtue and perfectibility of man’.As expressed by William Channing, quoted in Andrew Inglis Clark, p. 28.

In recent years there has been a strong movement to rename the Federal Electoral Division of Denison after Clark. Denison essentially covers the Hobart metropolitan area. On 22 August 2008 the Redistribution Committee for Tasmania, reporting under s. 68 of the Commonwealth Electoral Act 1918 (Cth), recommended against a change. The committee, while acknowledging ‘the significant contribution that Clark had made to Australia’s political and electoral life’ was

not of the view that the case for change is compelling enough, nor are the boundaries or socio-demographic nature of the proposed divisions sufficiently changed, to justify replacing the name of an original federation division.Redistribution Committee for Tasmania, The 2008 Proposed Redistribution of Tasmania into Electoral Divisions, Report of the Redistribution Committee, 22 August 2008, par 51.

Whatever the changes, if any, in boundaries and ‘socio-demographic nature’ of the division have to do with its name is not apparent. And confining Clark’s contribution to ‘political and electoral life’ hardly does justice to his role as the primary architect of our Constitution.

The division is named after Sir William Denison, who was Lieutenant-Governor of Van Diemen’s Land, later Tasmania, from 1847 to 1855. He was a supporter, albeit a somewhat vacillating one, of the continuation of transportation.JM Bennett, Sir Valentine Fleming, Second Chief Justice of Tasmania, The Federation Press, 2007, p. 58. It is odd that the committee should have placed so little weight on one of its guidelines, viz that:

In the main, Divisions should be named after deceased Australians who have rendered outstanding service to their country.Redistribution Committee for Tasmania, op cit, Appendix A, p. 27.

Sir William Denison is not a deceased Australian and in any event has had a fair innings of commemoration in the name of the Division of Denison for over 100 years.

The Redistribution Committee’s recommendation was subject to reconsideration by the Augmented Electoral Commission under s. 72 of the Commonwealth Electoral Act in the light of many objections, including, I should disclose, one of my own.

I regret to say, however, that on Friday 28 November 2008 the Augmented Electoral Commission announced a decision adopting the decision of the Redistribution Committee. The Augmented Electoral Commission said that it

considered that it is important not to disturb a familiar and long accepted divisional name, given the absence of the kind of trigger contemplated by the Guidelines for the Naming of Electoral Divisions.

The guidelines, at least as reported in the Redistribution Committee’s Report, say nothing about a so-called ‘trigger’. If the Augmented Commission had in mind the guideline which requires ‘very strong reasons’ for a change of name, their failure to find such reasons in the case of Andrew Inglis Clark seems simply bewildering. It is hard to imagine just what more somebody has to do to be considered as having rendered outstanding service to Australia.

Despite this strange decision, hopefully but a temporary setback, Andrew Inglis Clark remains one of Tasmania’s greatest sons, and a founder of our nation.

Copyright National Archives of Australia 2018