“With Eyes Open”: Andrew Inglis Clark and Our Republican Tradition
| Date | 01 June 1995 |
| Published date | 01 June 1995 |
| DOI | 10.22145/flr.23.2.1 |
| Author | John M Williams |
| Subject Matter | Article |
"WITH
EYES
OPEN":
ANDREW
ING
LIS CLARK
AND
OUR
REPUBLICAN TRADITION
John M
Williams*
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.
INTRODUCTION
The "irresistible"
or
"inevitable"
march
towards
the Republic of Australia
has
prompted
some
commentators
to investigate
the
application of republican notions to
the
analysis
of recent decisions of
the
High
Court. George Williams, for instance
has
argued
that
"[i]t is difficult to conceive of republicanism except as
an
extra-constitutional
notion
because
it
does
not
yet
form
part
of the Australian constitutional tradition."l Further,
Williams states
that
"[t]here is little
in
the Convention Debates
that
suggests
the
founders
of
the
Australian
polity
and
the drafters of its Constitution
sought
to
adopt
the
principles
or
themes of republicanism."2 Whilst Williams is correct
in
that
those
delegates
who
harboured
republican tendencies
kept
them
generally to themselves,
it
is
not
correct to suggest
that
republician principles
did
not
play
an
important
part
in
the
foundation
of
the
Australian Consitution.3
1
2
3
BA
(Hons) (Tas)
LLB
(NSW),
PhD
candidate,
Law
Program, The
Australian
National
University.
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.
GWilliams, "A Republican Tradition for Australia?" (1995)
23
FLRev 133
at
143.
Ibid
at
144.
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.
150
Federal
Law
Review Volume 23
The thesis of this article is
that
in
fact astrong republican
stream
runs
through
the
Australian
Constitution. However, this republican tradition
has
been
generally
neglected
within
Australian
Constitutional history
and
jurisprudence.
Andrew
Inglis
Clark,
the
Attorney-General of Tasmania
and
delegate to the 1890
Melbourne
Conference
and
1891
Sydney
Convention,
was
a
staunch
republican. As a
member
of
the
1891 Drafting Committee (with Griffith
and
Kingston),
Clark
attempted
to
imbue
the
Constitution
with
his republican "sympathies". Arising from his republicanism
was
an
overwhelming
concern for the
adequate
constitutional protection of
individual
rights for
Australian
citizens. This article will initially discuss
the
"republican revival"
that
has
been
taking place in legal scholarship
in
recent years
and
will
adopt
its
framework
as the
means
by
which
Clark's
work
may
be
assessed. Secondly, it will
introduce
Clark
and
identify the intellectual foundations
which
mark
him
out
as a
key
member
of
our
republican heritage. Thirdly, it will
demonstrate
how
the
Australian
Constitution
derived
many
of its republican features from his activities
during
the
drafting
stages of
the
1890s. Finally, it will
argue
that
republicanism, far from
being
a
novelty
in
Australian
constitutional thought,
was
a
powerful
consideration for
at
least
one
of
the
framers of
the
Constitution.
THE REPUBLICAN TRADITION
It is trite to
say
that
republicanism
has
an
ancient lineage
which
dates
back
as far as
the
Greek
city-states
and
the early
Roman
republic. However, it is
the
so-called "revival" of
this "rich historical tradition"
that
has
presented
contemporary
scholarship
with
a
powerful
analytical framework.4It is far
beyond
tl1e
scope of this article to
address
the
numerous
accounts of
modem
republicanism. Iwill limit
my
analysis to outlining
what
have
been
identified as
the
more
conspicuous features of
the
republican tradition.
Williams,
drawing
on
authors
from the revivalist movement,
argues
that, "The core
elements of
modem
republicanism
may
be
taken
to refer to a
system
of
government
by
the
people
equally
that
seeks to achieve the
common
good
through
deliberation
by
political actors
who
act
not
in
their
own
interest
or
the interest of their constituents
but
for the
community
as awhole."s Cass Sunstein, one of the
key
revivalists,
presents
modern
republicanism as far
more
than
philosophical "excavation."6 Beyond
the
republican
revival, according to Sunstein, is the greater
task
of "integrating aspects of
traditional
republican
thought" into
contemporary
political situations
in
order
to
"satisfy
republican
goals."7
What
then
are the "goals"
or
elements of
modern
republicanism? According to him,
they
can
be
characterised
by
four inter-related
features: deliberation
in
politics, equality of political actors,
universalism
and
citizenship.8 For him, these features
have
particular analytical
importance
for
contemporary
society. For instance, the concept of deliberation gives rise to
more
than
just
the
requirement
that
decisions are
made
after consideration of certain relevant
4
S
6
7
8
REpstein,
"Modern
Republicanism -
Or
The Flight
From
Substance" (1988) 97
Yale
LJ
1633
at
1634; CSunstein, "Beyond
the
Republican Revival" (1988) 97
Yale
LJ
1539; LKerber,
"Making Republicanism Useful" (1988) 97
Yale
LJ
1663
at
1663-5; RFallon, "What is
Republicanism,
and
is it
worth
Reviving?" (1989) 102
Harvard
LR
1695.
GWilliams, above n 1
at
133.
CSunstein, above n 4
at
1589.
Ibid.
Ibid
at
1541.
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