Sir Edward Mctiernan - A Centenary Reflection
| Published date | 01 June 1991 |
| DOI | 10.1177/0067205X9102000201 |
| Author | Michael Kirby |
| Date | 01 June 1991 |
| Subject Matter | Article |
1991]
Sir
Edward
McTiernan
-A
Centenary
Reflection
165
SIR
EDWARD
MCTIERNAN
• A CENTENARY
REFLECTION
THE
HON
JUSTICE MICHAEL KIRBY*
1INTO THE WORLD OF 1892
Year
by
eventful year, acentury has passed since the birth
of
Edward
Aloysius McTiernan on 16 February 1892 at Glen Innes, New South Wales. The
second
of
two children
of
Patrick McTiernan, police constable, and Isabella
McTiernan (nee Diamond) came into aworld on the brink of great political and
legal changes. His life virtually spanned the whole history to date
of
the
Commonwealth
of
Australia. It saw mighty wars, great scientific and social
changes and the apogee and fall
of
the British Empire. Instructive it is to reflect
upon the world he entered and the controversies which were agitating Australia
and the mother country at atime young Edward was born.
Ayear before his birth, an event was to take place which affected the course
of
his life. In 1890, provision was first made for the payment
of
members
of
Parliament elected
at
the next general election in the colony
of
New South
Wales. With this development, in January 1890, the Trades and Labor Council
decided to field candidates for the election. Plans were made to form Labor
Electoral Leagues in every constituency. The first such League was formed in
Balmain in March 1891.1In July, the Premier, Henry Parkes went to the people.
In their first election, the Leagues contested 48 seats. They won
35.
They then
held the balance
of
power between the Free Traders, led by Parkes, and the
Protectionists, led by George Dibbs. The Parkes Government resigned on
19
October 1891. Dibbs became Premier. The leadership
of
the Free Trade
opposition passed
to
George Reid. In January 1892, the Second Annual General
Conference
of
the Labor Electoral Leagues met in the euphoria
of
its recent
electoral triumph. The Leagues chose Joseph Cook to
be
their first leader,
although there were already divisions amongst the representatives over the issues
of
free trade or protection. Labor was no sooner born than factions fonned within
it. Yet those early stalwarts could scarcely have imagined the future which lay
before the political movement which they established. It would corne, by the time
of
McTiernan's death, to command the treasury benches in the national
Parliament and in all but two
of
the other legislatures in Australia.
That national Parliament was still an idea in the minds
of
the Federalists. In
1885, an Imperial Act had set up the Federal Council
of
Australasia.2The
Council lacked executive power and any provision for raising independent
revenue. Henry Parkes saw it as an obstacle to atrue federation. Concern about
the defence
of
the Australasian colonies was also beginning to agitate Whitehall.
With the Canadian Constitution behind
them,3
the Imperial politicians were in a
mood to look more sympathetically upon proposals for an Australian Federation,
if
only the colonists could agree amongst themselves.
AC CMG. President
of
the Court
of
Appeal
of
New South Wales. This essay is based on an
address to the St Thomas More Society. Sydney
23
July 1991. and reflects the author's
personal views.
RMcMullin.
The
Light
on
tM Hill: TM Australian Labor Party 1891-1991 (1991).
Federal Council of Australasia Act 1885 (Imp).
British North America Act 1867 (Imp). In 1981 this statute was renamed The Constitution Act
1867.
166 Federal Law Review [VOLUME 20 I
On 24 October 1889,
at
Tenterfield, New South Wales, Henry Parkes made a!
stirring speech in which he called for the replacement
of
the Federal Council :
with astrong national Parliament having full control over all matters concerning I
Australasia as awhole. In the result, in February 1890, ameeting in Melbourne I
of
the leaders
of
the Australian colonies, together with two representatives from
New Zealand, discussed Parkes's proposals. They agreed to call aconvention in
the following year. This convention met in March 1891 in Sydney. It was the I
first National Australasian Convention. It comprised
46
delegates from all
Colonial Parliaments in Australasia.
It
met in the Chamber
of
the Legislative'
Council
of
New South Wales, the oldest elected body
of
the colonies. The first
draft
of
an Australian Federal Constitution was agreed. The principal draftsman
was Samuel Griffith, the Queensland Premier. He did most to shape the draft
which the High Court, yet to be created, was to expound and in which he, and
later McTiernan, were to serve.
Parkes's loss
of
office in 1891 in New South Wales appeared to set back the '
Federal cause. How much
of
this news reached Constable McTiernan and
his:
family in Glen Innes can only be amatter
of
speculation. Parkes was replaced by
Edmond Barton as the new "leader"
of
the Federal Movement. In August 1894,
George Reid, now Premier,
of
New South Wales, called for asecond Federal
Convention. This took place in 1897. It led to athird session in Melbourne in
1898 and to referendums throughout Australia in that and the following year. In
June 1900, on the request
of
the Australian colonies, the Australian Constitution
Act was passed by the Imperial Parliament.4Queen Victoria gave her royal assent
on 9July 1900. The Commonwealth
of
Australia came into being on 1January
1901. The young Edward McTiernan, not 8years old, was to
playa
part in its I
Parliament and in the Federal Supreme Court for which the Constitution
provided.s
In Britain the events
of
far away Antipodean colonies were less pressing than
other concerns closer to home. In 1886 the Prime Minister, William Ewart
Gladstone had introduced aHome Rule Bill for Ireland. He declared that
Britain's treatment
of
Ireland was a"broad and black blot" upon its record:
Ireland stands at your bar, expectant, hopeful, almost suppliant .... She asks a
blessed oblivion of the past, and in that oblivion our interest is deeper than even
hers.... Think, Ibeseech you, think well, think wisely, think, not for the moment
but for the years that are to come, before you reject this Bill.6
But reject
it
they did. It was thrown out
of
the House
of
Commons by 343
votes to 313. The Queen was asked to dissolve Parliament immediately. The
election campaign which followed was fought with unequalled bitterness. The
Conservative leader, Lord Salisbury, who had suggested that some people -
"hottentots and hindoos" -were incapable
of
selfgovernment, was pressed on the
entitlement
of
the Irish to different treatment.7But the final results
of
the
election gave 316 Conservatives and 78 Liberal Unionists ahuge majority over'
191 Gladstonian Liberals and 85 Irish Nationalists. Rural England had voted
against Irish reform. Gladstone resigned, to the profound relief
of
the Queen. She
urged him not to encourage the Irish to expect that they would ever have Home
Rule as that was "now impossible".8 Impossible is aword that should rarely
be
4
S
6
7
8
Commonwealth
of
Australia Constitution Act 1900 (Imp).
Ibid s71.
See EMagnus, GladstoN! (1963) 357.
Ibid 358.
Ibid 354.
To continue reading
Request your trial