Build the man a statue!
- Remembering the other architect of Chapter III -
J L Snaden
Some of you might be familiar with the popular animated sitcom, The Simpsons.  I’ve long maintained that there’s a Simpsons reference for every occasion that life presents.  And so, looking for inspiration as to the topic about which I might speak today, I turned, as I often do, to the wisdom of Homer.
There is an episode from the show’s fourth season entitled, “I Love Lisa”, which centres upon the children of Ms Hoover’s elementary school class; and, in part, upon a school concert that the children present in honour of Presidents’ Day.  One of the songs that the children perform is devoted to what they describe as the “mediocre presidents”.  The lyrics, written in the collective first person, are short and it’s convenient that I might recite them:
We are the mediocre / presidents
You won’t find our faces / on dollars or on cents
There’s Taylor, there’s Tyler, there’s Fillmore and there’s Hayes
There’s William Henry Harrison
([Harrison:]  I died in thirty days!)
We are the adequate
Forgettable
Occasionally regrettable
Caretaker Presidents of the USA!

I should not presume for a moment to describe the subject of this paper as mediocre; indeed, the truth is precisely to the contrary.  But the song got me thinking:  who are the lesser-known architects of Australia’s federation?  When we think of our nation’s foundation and of the debates that framed the birth of its constitution, most of our minds wander to names like Parkes, Barton, Deakin, Higgins, Isaacs, Reid…and, of course, Sir Samuel Griffith.  But the story of Australia’s Constitution has a wider cast; and I thought today that I would speak about one of its lesser-known stars—one of its “extras”, if you will—a Tasmanian by the name of Andrew Inglis Clark.
And it’s fitting that I might do so during a session entitled “The Judiciary and Judicial Power” because, as I hope will become apparent, the form and content of Chapter III of our Constitution owe as much to Inglis Clark as to anybody.  And yet many in the room here today won’t know much about the man; indeed, I dare say that some won’t ever before have heard his name.
Clark was born in Hobart in 1848, just a few years before the end of Tasmania’s convict era.  “Delicate” in his childhood, he attended Hobart High School and, for a brief period, his future foretold of life in his father’s engineering business.  Instead, after earning his qualification as an engineer, he was articled to a local solicitor and, in 1877, was called to the Tasmanian Bar.
Clark developed a fascination with American law, formed in the shadows of arguably history’s greatest constitutional struggle:  the American Civil War.  That devastating conflict captivated legal scholars throughout the English-speaking world; and particularly throughout the colonies, where the possibility that equivalent divisions between adjacent settlements might lend themselves to similar brutality.  It was concerns of that nature that hastened the cause of Canadian federalism; and so too was it the case here.
Clark was active within a movement known in Hobart as the American Club, which described itself as a collection of “young, ardent republicans” who met regularly to discuss what the newer British colonies of the south might learn from the great republic.  Clark was, indeed, the most ardent of republicans; and, although always a believer that Australia should maintain its links to Great Britain and her Queen, supported with equal conviction the “…abolition of every institution that confers political power or personal privilege as an appendage of birth from a particular parentage.”
A year after being called to the Tasmanian Bar, Clark was elected for the first of two stints to the Tasmanian House of Assembly.  He lost his seat in 1882, whereupon he returned to the Bar and built a formidable and broad practice.  In the late 1880s, he was re-elected to Parliament and served as Attorney-General in the Government of Sir Philip Fysh.  In 1890, he was able to combine his talents, travelling to London to argue an appeal before the Privy Council in a matter that the state had lost before the colonial Supreme Court.  The case resolved; but Clark had occasion nonetheless to see the Privy Council in action.  As he would later recall it, his experience of seeing the Law Lords snoozing during a hearing reinforced in him a strong belief that there should be a cessation of appeals to that body from judgments of the colonial Supreme Courts—a position that he would come to reiterate over the following decade.
It was at around that time, of course, that the first serious federalist ruminations began in Australia.  In October 1889, Sir Henry Parkes delivered his famous Tenterfield Oration:  the first direct appeal for public support of what was to become the great constitutional project of the following decade.
Inglis Clark had already been elected as a delegate to the Federal Council of Australasia, a body established by the Imperial Parliament in the mid-1880s.  That council, it might fairly be said, was not an especially august institution and is now all-but-forgotten.  It only ever met eight times, always in Hobart for some reason, and never with any representation from New South Wales or New Zealand (and only occasional representation from South Australia).  But it was, nonetheless, the first incarnation of inter-colonial government and Clark was part of it.
After the Tenterfield Oration, the push toward federation gained real momentum.  In 1890, the Australasian Federation Conference was held in Melbourne, the end result of which was agreement that a convention should be arranged to draw a new constitution, under which the colonies might unite as a single nation under the British Crown.
At the first convention, held in Sydney in 1891, the task of identifying and debating content appropriate for a new constitution was split between three committees, which fed their deliberations into a much smaller (three-man) drafting subcommittee.  That drafting subcommittee comprised of its chair, Sir Samuel Griffith (then Premier of Queensland), Inglis Clark and future South Australian Premier, Charles Kingston.
Each of Clark and Kingston had circulated ahead of the convention his own draft document.  Clark’s was accompanied by a lengthy memorandum, which is replicated in full in John Williams’s magisterial tome, The Australian Constitution:  A Documentary History.  Clark was at pains to point out in his memo the inspiration that he had drawn from the United States Constitution and the respects in which he had eschewed elements of its Canadian counterpart, which commanded the favour of other delegates, particularly Parkes; but which Clark very plainly considered to be ill-suited.  Opining upon the judiciary, Clark made his preference for the American model plain, writing:
…I have followed the American model with an innovation which I think will prove acceptable to the people of all the Colonies…  The matters I have placed under the jurisdiction of the Federal Judicatory are the same as those placed by the Constitution of the United States under the jurisdiction of the Supreme Court of the American Union, and the innovation I have mentioned is the bestowal upon the Supreme Court of the Federal Dominion of Australasia of the additional jurisdiction to hear appeals from all final judgments of the Supreme Courts of the several provinces…

Whereas appeals from US state courts to the US Supreme Court were limited to matters of federal law, the appellate jurisdiction of Clark’s supreme court would, as now, know no such limit.  Additionally—and perhaps harking back to his experience less than a year earlier—Clark continued:
This jurisdiction I propose to be final, and to be substituted for the appeal which now lies from the judgment of the Supreme Courts of the several colonies to the Privy Council.

When one thumbs through Clark’s 1891 draft—which Williams also replicates in full—and in particular Part V of it, which Clark entitled, “federal judicatory”—there are two respects that strike with immediate familiarity.
The first is the similarity that Part V bears to Art III of the US Constitution.  Both would vest judicial power in supreme courts established beyond what the reach of executive and legislative impulse.  Both would extend that power to cases—what we now refer to as “matters”—arising under the constitution, and under Commonwealth laws, treaties and so on.  Both would guarantee trial by jury.  Both would guarantee the independence of federal judges; including by ensuring that their remuneration “shall not be diminished”.
The other source of familiarity is as between Clark’s draft and our constitution as it now reads, more than 130 years later.  Anybody who doubts Clark’s influence on the process that culminated in the public endorsement of our constitution in 1900 need only look at his draft.  It cemented the basic structure of our constitution as it remains today, with its celebrated melding of American separation of powers with British parliamentary government.
Sir Samuel Griffith, as chair of the drafting subcommittee, was heavily influenced by Inglis Clark’s draft bill.  In March of 1891, Griffith annotated a version of the Clark draft for discussion at the Convention.  All manner of edits were made; some of them substantive, some stylistic.  Clark’s conception of “Provinces” was changed to “States”; and his references to the “Federal Dominion of Australasia” became the “Commonwealth of Australia”.  Significantly, the provisions that Clark had inserted in the “federal judicatory” section were left as they were.
Later, Griffith would come to prepare what he referred to as his “First Proof”:  a completed first draft constitution that incorporated his thoughts; and that would serve as a prototype for discussion amongst delegates at the first Convention.  By then, he had divided the document into chapters; and “Chapter III” was entitled, “The Federal Judiciary”.  Perhaps that was a result of the draft that Charles Kingston had provided.  It, too, drew heavily on Art III of the US Constitution; although some of the terminology—including its reference to what was proposed should be “the Supreme Court of United Australia”—differed to what Clark had proposed.
Whereas his first review of Clark’s draft left the “Judicatory” provisions as they were, Griffith’s “First Proof” was not quite as forgiving.  It maintained, for example, a limited right of appeal to the Queen in Council, a facsimile of which, despite Clark’s opposition, would not only find expression in the constitution that was adopted at federation; but also survive a further eight decades until the passage of the Australia Acts in 1986.
History records that Griffith’s “First Proof” was circulated to members of the first convention’s “Constitutional Committee” on Thursday, 26 March 1891.  The following day was Good Friday; and Griffith invited the delegates to join him on his steam yacht, the Lucinda, which he had had brought down from Brisbane for the Easter Weekend.  Struck down by influenza the day before, Clark was unable to join the others until Easter Sunday.  In the intervening period, as the delegates sailed from Sydney Harbour to the Hawkesbury River, substantial progress was made on Griffith’s “First Proof”.  Not all of it met with Clark’s approval when he rejoined the group.
Perhaps the most significant change was to what now appears as s 71:  “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court…”  Clark had conceived of what he then referred to as the Supreme Court of the Federal Dominion of Australasia much as Art III of the US Constitution had conceived of the Supreme Court of the United States:  namely, as an institution that the founding document would establish, and one that should be immune to the discretions and reach of the Parliament.  It was to be “…a permanent part of the constitution, and not the creature of the Legislature of the day.”
After their deliberations on Easter Saturday, the delegates on board the Lucinda had seen fit to tinker with that provision.  Instead of enshrining the supreme court in the constitution itself, the provision was amended so as instead to confer upon the Parliament a power to establish one.  Little is known about how or why that change was made.  Charles Kingston’s draft bill sought to invest judicial power in a constitutionally-enshrined court, much as did Clark’s (and, indeed, Griffith’s own “First Proof”).  There is no record of what prompted the change on the Lucinda.   Unlike the convention debates themselves, there are no records of the committee deliberations; nor of the less formal deliberations that took place on board the Lucinda.  There was, it is fair to say, more than token opposition at the time to the removal of causes from the colonial Supreme Courts and, in particular, to the removal of rights of appeal to the Queen in Council.  English merchants operating in the colonies saw the preservation of the latter as especially important; and it’s perhaps not inconceivable that those interests were brought to bear upon the deliberations that took place on the Lucinda.
Regardless, Clark was unimpressed.  Reflecting some years later on what he described as the “picnic on the pleasure yacht Lucinda”, Clark complained that the participants, whilst enjoying themselves, had tinkered with all of his judicatory clauses; and, in doing so, had “messed it”.
It wasn’t until the second constitutional convention in 1897 that the provision that now finds expression in s 71 came to be restored.  In a speech given in Adelaide in March 1897, then Premier of New South Wales, Sir George Reid, implored the convention to adopt a model in which judicial power vested in a court is “embedded in the Constitution itself”.  Recognising what Clark had intended, he continued:
…it is essential to the just exercise of federal powers that this Supreme Court shall be strong enough to do what is right—strong enough to act as the guardian of all the rights and liberties of the States and people of Australia.

Neither Clark nor Griffith attended the second convention (which sat, in 1897, in Adelaide and Sydney, and then, in 1898, in Melbourne).  Griffith was, by then, serving as Chief Justice of colonial Queensland; Clark as Tasmanian Attorney-General.  Both followed the event closely and each was prevailed upon by his colonial government to give judgment on the draft bill as it stood after the Adelaide sitting.  Opining upon what was then a draft form of Chapter III, Griffith was somewhat unenthused, observing in a paper that he delivered to the Colonial Government that it had:
…been to a great extent redrawn, and evidently by a different hand from that responsible for the rest of the Draft Constitution, the result being a somewhat abrupt change of style which I venture to think a serious blemish.

His Honour continued:
The new style adopted is what may be called the Catalogue style of drafting, which, although familiar to the draftsmen of 1891, and suitable to the case of an enumeration of a large number of subjects (as, for instance, in s. 52), was not considered by them to be compatible with the dignity of a great instrument of government.

Griffith adverted to the enshrining of a supreme court into the constitution itself.  Despite describing it as the “most important formal change” to Chapter III, he went on to observe that it was “…of no practical importance, for, until Parliament provides salaries for the judges and the necessary machinery for the existence of their jurisdiction, the judicial power will necessarily remain in abeyance”.  Perhaps that gives some context to the changes that were made six years earlier on board the Lucinda.
Clark, by contrast, was more upbeat, recording in an address given in July 1897 before the Tasmanian House of Assembly his delight that the Adelaide draft substantially adopted what had appeared in the 1891 Bill.  Although he made a series of suggested amendments to it, the only one that concerned Chapter III was about the scope of a right of appeal to the Queen in Council.
I pause at this juncture to note a curious chronological feature that attended the conventions:  the lengthy hiatus from 1891 and 1897.  If one is looking for an interesting summation on that, one can find it in Williams’s The Australian Constitution:  A Documentary History.  It’s only three pages long but it lends itself to even briefer summation:  economics and politics.  In New South Wales, Sir Henry Parkes’s sponsorship of the 1891 draft was met with opposition from within his Free Trade Party, including from then backbencher (and future Premier and Prime Minister), George Reid, who not unfairly surmised that a new federation would be dominated by protectionists.  Economic factors also came to bear upon the progress toward federation:  to put it bluntly, depression and drought meant that the colonies had other things to worry about.
Much as on the document itself, Clark’s fingerprints are also to be found upon the reinvigoration of the Australian constitutional project.  In January of 1895, the Federal Council of Australasia—that historical footnote that is mentioned above—met for the sixth of its eight times.  Sensing his opportunity, Inglis Clark set about convening a meeting of the colonial Premiers who were then in Hobart.  All of them attended—including Sir George Reid and Charles Kingston, then respectively the Premiers of New South Wales and South Australia (they being the two colonies whose involvement with the Council was sparse, if existent at all).  The meeting was informal and there’s no record of what it debated; but, late in the evening, Sir George emerged from the Tasmanian Club in Macquarie St and announced to a herd of patient reporters that the meeting had resolved that a further convention—comprising of elected delegates from each colony—would be held to draw a constitution that could be put for endorsement by a popular vote.
Like Sir Samuel Griffith’s, Clark’s involvement thereafter in the convention of 1897-98 was peripheral.  After the Adelaide sitting, he proposed the insertion of a clause modelled on the US Constitution’s 14th Amendment:  the so-called “privileges and immunities” protections.  The proposal was defeated and the convention ultimately settled upon the watered-down version that one finds now in s 117.
Clark was more successful, however, in enshrining the power of the judiciary to hold to account the other organs of government.  At the Melbourne sitting of the second convention in 1898, Edmund Barton expressed some concern about the conferral upon the high court of jurisdiction in matters in which a writ of mandamus or prohibition was sought against the Commonwealth.  Understanding—wrongly, as it happens—that the provision had its origins in Art III of the US Constitution, Barton was concerned that the provision might be read as one of limitation, foreclosing upon other remedies that might also be prudent to feature as part of the judicial power of the Commonwealth.  Following debate in Melbourne in January 1898—and on the urging of Sir Isaac Isaacs—the clause was removed.
But for Clark’s intervention, that omission might not have been corrected.  The reference to “mandamus and prohibition” was not inspired by Art III of the US Constitution, as Barton had theorised.  In fact, its origin was in a clause contained within Clark’s 1891 draft, which with minor amendment had made it into Griffith’s “First Proof” and, ultimately, into the bill upon which the first convention came to settle.  It was a provision that Clark had included out of concern to ensure that the legislature should never be able to inoculate the executive against accountability for jurisdictional misadventure.
Upon hearing of the amendment made in January 1898, Clark sent a telegram to Edmund Barton.  Its content seems to have been lost to history; but it evidently referenced the decision of the US Supreme Court in Marbury v Madison.  So much is apparent from Barton’s letter to Clark in reply, dated 14 February 1898, which read in part:
I have to thank you further for your telegram as to the striking out of the power given to the High Court to deal with cases of mandamus and prohibition against officers of the Commonwealth.  None of us here had read the case mentioned by you of Marbury v Madison or if seen it has been forgotten.  It seems however to be a leading case.  I have given notice to restore the words on the reconsideration of the clause.

Clark’s provision conferred upon the High Court original jurisdiction in matters in which a writ of mandamus or prohibition was to be sought against an officer of the Commonwealth.  It would appear to have been taken from—or was, in any event, an analogue of—§ 13 of the Judiciary Act of 1789 (US):  the very provision that the Supreme Court in Marbury struck down.  Clark sought to ensure that the High Court should have the original jurisdiction that the Supreme Court in Marbury held was beyond what the Congress validly could confer.  Perhaps, as Sir Isaac Isaacs contended in opposition to its reinstatement, that power would exist whether stated or not.  Certainly it would have on appeal; and certainly the Parliament would have retained a power to legislate so as to confer it (unlikely though that might seem in a practical sense, given the prevalence of privative clauses in legislation today).  But Clark’s provision made clear what might otherwise have been left for inference:  namely, that the judicial power of the Commonwealth should extend so as to confer upon the High Court the power to compel the other limbs of government to do or not do that which the constitution or Acts of Parliament require or forbid.
Thus were sown the seeds of judicial review of federal executive action in this country.
It has been said that, of the 96 provisions that Inglis Clark drew into his 1891 draft constitution, all but eight found expression in one form or another in the 1891 Bill that was endorsed by the first convention in Sydney; and that there are only 10 that have no identifiable analogue in the version that was publicly endorsed in 1900.
When Australia was federated, Inglis Clark had assumed his role as a justice of the Tasmanian Supreme Court.  His skill as both a lawyer and a draftsman were obvious; and there was serious talk about his potential appointment to the High Court.  The founding government of Sir Edmund Barton was expected initially to appoint five justices to the new court; and Attorney-General Alfred Deakin had already pegged Clark as an associate justice in a future Griffith court.  Out of concern that the new court wouldn’t have enough work to keep itself occupied, that number was reduced to three and Clark missed out.  Barton himself resigned as Prime Minister to become the senior puisne judge, joining Chief Justice Griffith and Justice Richard O’Connor.  In 1906, when initial fears about the court’s workload were exposed as unfounded and the court was expanded in number, Clark was again on the shortlist; but, again, was passed over (that time for Justices Isaacs and Higgins).
A year later, Clark was dead.
In 1991, a year after he retired from the Tasmanian Supreme Court, Frank Neasey had occasion to wonder why the name Andrew Inglis Clark was so much less recognisable throughout the land that he had helped federate than those of his contemporaries, Griffith, Barton, Deakin, Isaacs, Higgins and O’Connor.  Justice Neasey observed:
The reason why Clark's name has faded in comparison with theirs is, I suggest, the plain one that he filled no public role in shaping the Constitution during the 1897-98 Convention, and no prominent part, either judicial or political, in the new federation.  By contrast, all the others…did…

When I began my address, I described Clark as an “extra” in the production from which our federation emerged.  That was grossly unfair; even accepting that I wouldn’t use the term in any pejorative sense.  Yet it neatly demonstrates Clark’s unfortunate recession from public consciousness.  Had he played a similar role in the birth of the United States, history would remember him no less fondly than it remembers Hamilton, Adams, Madison and Marshall.
Yet the recession here is significant.  When one surveys a list of federal electoral divisions, no fewer than 15 are named in honour of our constitutional fathers.  Clark is one of them; but the division that bears his name wasn’t created a century or decades ago like the others.  It was created in 2019, when Andrew Wilkie’s federal division of Dennison was abolished—nearly 130 years after Clark’s seminal draft made its mark.
Perhaps one of the architects of that change was former High Court Justice, Michael Kirby, who, giving the inaugural A I Clark Lecture in 2014, called for Dennison’s renaming.  In the course of doing so, his Honour noted that, “…no Tasmanian can justly claim, on objective evidence, a greater claim of influence in the shape of Australia’s constitutional arrangements than A. I. Clark”.  His Honour is not the only justice of the High Court to speak of Clark in that way.  Sir William Deane described him as “…the primary architect of our constitution”.  And no less an icon than Sir Owen Dixon, with the other majority judges in the High Court’s Boilermakers decision, referred to Clark as someone who, on matters of constitutional theory, was “entitled to speak with authority”.
The late Professor William “Bucky” Buss, a legal academic and historian from the University of Iowa, happened upon Clark when researching the influence of American constitutionalism abroad.  Opening a paper written in 2009, Buss wrote:
Anyone who cares about constitutional law and constitutional rights, about individual liberty and the rule of law, would be drawn powerfully to Andrew Inglis Clark.  Clark was a romantic and sometimes a poet.  He was also a man of the world who got things done – as a politician, as the Attorney-General of Tasmania, as a Justice of the Tasmanian Supreme Court, as a significant force in the founding, and later the Vice-Chancellor, of the University of Tasmania, and as an intellectual and a writer.  Australians should be especially drawn to Clark because he was one of the great framers of the Australian Constitution.  He was also a loyal British subject who believed the Empire would be best served by an Australia which was fundamentally independent, though technically part, of the Empire.
I conclude with the words of Clark himself, which neatly sum up his conception of Chapter III and the exercise of judicial power:
The supremacy of the judiciary, whether it exists under a federal or a unitary constitution, finds its ultimate logical foundation in the conception of the supremacy of law as distinguished from the possession and exercise of governmental power.