Common(wealth) Knowledge #34: Why Edmund Barton shouldn't be forgettable

We take a look at why Edmund Barton was one of Australia’s most important Prime Ministers.

In an article from earlier this month, the ABC reported that Edmund Barton was among Australia’s least well-known Prime Ministers. But should be really be? In a Common(wealth) Knowledge first, let’s take a look at one of the most important men in Australia at the turn of the 20th century, as a constitutional framer, the first Prime Minister, and a founding member of the High Court of Australia.

As a politician in colonial New South Wales, Barton had the opportunity to participate in the constitutional conventions of the 1890s. He attended the initial National Australasian Convention of 1891, and would later produce an annotated version of Andrew Inglis Clarke’s draft, and would be promoted to serve as the colony’s Attorney-General in October of that year. Arguably his most influential role at this time was in the drafting of the free trade clause of the Australian Constitution, Section 92, which was meant to ensure that trade between the various states would be “absolutely free” and without tariffs. Somewhat ironically, he would go on to lead the Protectionist Party, which supported imposing tariffs on foreign goods, with the intention of encouraging Australians to purchase artificially cheaper domestic goods.

Barton would play a much greater role at the Australasian Federal Conventions of 1897-98. In contrast to the earlier convention, where delegates were simply picked by colonial governments, as Federation was more experimental in 1891, the delegates to the Australasian Federal Conventions were elected. Barton, who had replaced the late Henry Parkes as the Federation movement’s leader, was the most popular candidate from New South Wales. This was despite Barton being disgraced in 1983 after attempting to be a lawyer in a private court matter while also serving as Attorney-General, which led to the dismissal of Barton and his ally, and Minister of Justice, Richard O’Connor. The two would play central roles in drafting the Constitution, along with Samuel Griffith, the Queensland Premier-turned-Chief Justice, who had taken over Clarke’s job.

Although never becoming New South Wales Premier, unlike the Free Trade Party’s George Reid, future Prime Minister and Barton’s rival in New South Wales politics, Barton would become Australia’s first Prime Minister and its first elected Prime Minister. As it would take time to set up elections, Barton was appointed by the new Governor-General John Hope, Earl of Hopetoun, to serve as caretaker Prime Minister with a bare-bones Cabinet. This process was agreed upon before Federation, which is why Section 64 has a paragraph about allowing Ministers, including the Prime Minister by implication, to serve for 3 months without being elected, as that’s how long it would take to have the election.

Barton was almost not the first Prime Minister, because Earl Hopetoun, unfamiliar with colonial politics, commissioned William Lyne, who had ousted Reid from the NSW Premiership in September 1899, to be the first Prime Minister, but this was met with frustration from all sides, as Lyne had been a fierce opponent of Federation. Although popular enough to become a colonial Premier, his views were ill-suited for the role of Prime Minister, and so all colonial politicians that he asked to join his Cabinet refused. This forced Lyne to surrender his commission, with Barton receiving the commission on 24 December 1899, just one week out from Federation, as an early Christmas present. This is now known as the ‘Hopetoun Blunder.’

While it is difficult to examine the impact of Edmund Barton as Prime Minister, when compared to US Presidents like George Washington, due to the executive branch of the Commonwealth government being integrated into the legislative branch, his government certainly had a massive impact on Australia. It was during Barton’s tenure as Prime Minister that much of Australia’s political framework was set up, and, as Prime Minister, Barton undoubtedly was influential in this process. The legislation passed by his government includes the following:

• Acts Interpretation Act 1901 (Cth) - Set the standards for the definitions, terminology and structure used in drafting Commonwealth legislation, which would also help ordinary Australians understand legislation. Still in force.

• Audit Act 1901 (Cth) - Established an auditing process for the collection and use of taxes, and created the post of Auditor-General.

• Immigration Restriction Act 1901 (Cth) - Established the White Australia Policy.

• Pacific Island Labourer Act 1901 (Cth) - Sought to stop Queensland from employing Pacific Islanders as a cheap work force often compared to slavery, although technically not slaves.

• Commonwealth Electoral Act 1902 (Cth) - Set up how future federal elections were to be run.

• Commonwealth Franchise Act 1902 (Cth) - Extended the right to vote to British subjects over the age of 21 who had lived in Australia for 6 months and were on the electoral role for their federal electoral division. This avoided the property ownership requirements that had plagued the UK voting rights debate, granted women the right to vote. Women could also stand for election to Parliament.

• Royal Commissions Act 1902 (Cth) - Created Royal Commissions. Still in force.

• Judiciary Act 1903 (Cth) - Created the High Court of Australia. Still in force.

As a final note, its worth pointing out that many of these laws were the result of compromises with Labor, as the Protectionist government was a minority government. For example, Labor had Aboriginal voting rights removed from the Commonwealth Franchise Act 1902 (Cth).

With the passage of the Judiciary Act 1903 (Cth), written mostly by Samuel Griffith, the government needed to fill the initial bench (makeup) of the court with three judges. Griffith was picked to be Chief Justice, given his experience in that role on the Queensland Supreme Court. O’Connor resigned from being Government Leader in the Senate to join the court, and Barton took the third spot. Alfred Deakin would take over as Prime Minister, and during his three non-consecutive terms as Prime Minister, Australia would move towards a two-party system, whereas Barton was more friendly towards a having more than two major parties.

The three men, who had shaped so much of the Constitution, now had the job of interpreting it on the High Court. They set the practice of interpreting its sections based on what the intention of the framers were, which they knew about because they were the framers. Only after the three died, with Barton outlasting the other two and dying in 1920, as this was before judges had to retire at 70, did the High Court decide to move away from this approach. Later that year, in the Engineers Case (1920), the newer judges agreed that the Constitution should be interpreted literally. Such was the reputation and sway of the three original judges that the court did not change its approach to interpretation until after they had all died.

The close relationship between Griffith, O’Connor, and Barton meant that the three men usually agreed on legal matters. As with the interpretation of the Constitution, the reasons behind why the three men came to a legal conclusion in a case were later overturned. For example, when it came to Section 92, they sought to approach the free trade clause from an individual rights perspective, which would be overturned in Cole v Whitfield (1988). However, the decisions themselves, or at least elements of them, have been endorsed. For example, in Duncan v Queensland (1916) the three original judges started a long tradition of imposing limitations on constitutional rights, arguing that ‘free trade’ does not mean ‘free from limitations,’ as that would lead to ‘anarchy,’ which the framers, in this case Barton himself, didn’t intend. That sentiment has echoed through to modern decisions.

Despite Barton’s rather limited time as Prime Minister, although he served longer than some Prime Ministers in the 2010s, he remains one of the more influential Prime Ministers in Australian history. This is, in part, thanks to his influence on the framing of the Constitution, and in its subsequent interpretation of it, as one of the few men in Australian political history to serve in all three branches of government.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Acts Interpretation Act 1901 (Cth).

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; [1920] HCA 54 (‘Engineers Case’).

Audit Act 1901 (Cth).

Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 (‘Tasmanian Lobster Case’).

Commonwealth Electoral Act 1902 (Cth).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Duncan v Queensland (1916) 22 CLR 556; [1916] HCA 67.

Immigration Restriction Act 1901 (Cth).

Judiciary Act 1903 (Cth).

Pacific Island Labourer Act 1901 (Cth).

Royal Commissions Act 1902 (Cth).