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Andrew Clark

If any Australian statesman may credibly be compared to Thomas Jefferson, it is Andrew Inglis Clark (24 February 1848–14 November 1907). He was the primary author of the Australian Federal Constitution, the most important 19th century Attorney-General of Tasmania

Andrew Inglis Clark was an Australian barrister, politician, electoral reformer and jurist. He initially qualified engineer, however he re-trained as a barrister in order to effectively fight for social causes which deeply concerned him. After a long political career, mostly spent as Attorney-General, he was appointed a Senior Justice of the Supreme Court of Tasmania. Despite being acknowledged as the leading expert on the Australian Constitution, he was never appointed to the High Court of Australia. He popularised the Hare-Clark voting system, and introduced it to Tasmania. In addition Clark was a prolific author, though most of his writings were never published, rather they were circulated privately. Clark was also Vice-Chancellor of the University of Tasmania. Throughout his life, Clark was a progressive. He championed the rights of worker to organise through trades unions, universal suffrage (including women's suffrage) and the rights to a fair trial - all issues which today we take for granted, but were so radical in the 1880's that he was described as a 'communist' by the Hobart Mercury.

"Clark was an Australian Jefferson, who, like the great American Republican, fought for Australian independence; an autonomous judiciary; a wider franchise and lower property qualifications; fairer electoral boundaries; checks and balances between the judicature, legislature and executive; modern, liberal universities; and a Commonwealth that was federal, independent and based on natural rights."

Clark's work on the Australian Constitution cannot be understated. Of the 96 sections of his draft, 86 are recognisable in the 128 sections of the final document.

Yet he also had a rich and warm home life. He is described as "never too busy to mend a toy for a child, and his wife once wrote on hearing of his imminent return from America: 'to celebrate your return I must do something or bust'".

Early Life and Marriage

Clark was born in Hobart, Tasmania. The son of a Scottish engineer, Alexander Clark. He was educated at Hobart High School. After leaving school, he was apprenticed to his family's engineering business, becoming a qualified engineer, and finally its' business manager. His father had established a highly successful engineering business, based on an iron foundry. The business was also involved with industrial design and construction of flour mills, water mills, coal mines and other substantial undertaking.

He grew to manhood during the 1860's, when the major issue, even in remote Tasmania, was the American Civil War and emancipation. This last issue had an especial resonance in Tasmania where a form of slavery, transportation, had been abolished as recently as 1853. Convicts were still a common sight for years later. As late as 1902, Clark would publicly be moved to tears when discussing slavery. Clark became fascinated by all things American.

• • • AIC was 12 years old when the American Civil War began. This was the major news story of the time. AIC became fascinated all things American. Forms the American Club. Studies the US Constitution.

In 1872, Clark disappointed his father by leaving to study law, becoming an Articled clerk with R. P. Adams. He was called to the bar in 1877.

Clark, as a child attended a Baptist Sabbatical School until 1872 when the chapel was dissolved on a motion put by Clark due to the "lack of discipline and proper order of government in worship." He them joined a Unitarian chapel, which led him into contact with leading American Unitarians, including Moncure Conway and Oliver Wendell Holmes, Jr. The friendship formed with the latter would strongly influence his views and the development of the Clarks' draft of the Australian Constitution.

Early in his life, Clark developed a passion for justice and liberty. He joined the Minerva Club where he participated in debate on contemporary social issues. In 1874, he edited its journal Quadrilateral. As a 'young ardent republican', he was also a member of theAmerican Club, where at the 1876 annual dinner, he declared "We have met here tonight in the name of the principles which were proclaimed by the founders of the Anglo-American Republic… and we do so because we believe those principles to be permanently applicable to the politics of the world". He was inspired by Italian Risorgimento, especially by Joseph Mazzini of whom he had a picture in every room. He became a radical, a democrat and a republican.

In 1878 he married Grace Ross, the daughter of a local shipbuilder John Ross, with whom he had five sons and two daughters:

• Esma (1878)
• Alexander (1879) Marine engineer
• Andrew (1882) Justice of the Supreme Court of Tasmania 1928-1953.
• Conway (1883) Architect
• Wendell (1885) Doctor
• Melvyn (1886/1887?)
• Correl (1888) Clerk of Tasmanian Legislative Council
• Ethel (1889)

One of the many mysteries of Clark's private life is the circumstances of his marriage. As the son of a prominent family, a leading figure of his church who was marrying the daughter of a well-known business man, you would expect his marriage to be a major social event. Instead, they slipped away to Melbourne, where they were married in the presence of a few friends. No explanation has ever been offered.

Political Career

In 1878, Clark stood for election to the House of Assembly, despite his reputation as an extreme ultra-republican. He was attacked by the Hobart Mercury for "holding such very extreme ultra-republican, if not revolutionary, ideas" that his proper place should be among the 'Communists', and the Launceston Examiner as "stranger from Hobart". He was elected, unopposed to the electorate of Norfolk Plains. His election was largely due to the influence of Thomas Reiby, a political power broker and a recent Premier.

Clark was the founder of the Southern Tasmania Political Reform Association, whose agenda included manhood sufferage, fixed term parliaments, and electoral reform. While a member of the House of Assembly, Clark was regarded as republican and ultra-progressive. He was one of the few members legislate as a backbencher and introduce a private members bill. He failed to reform industrial law by amending the Master and Servant Act, but he succeeded with the Criminal Procedure Amendment Act in 1881.. He also assisted with reframing the customs tariff.

In the 1882 election, Clark was defeated. He failed when he stood for election in 1884 (East Hobart) and 1886 (South Hobart). In 1887, Clark was re-elected, in a by-election as member for East Hobart. In 1888, he was re-elected as member for South Hobart and remained there until the seat was abolished 1897. He was then the member for Hobart until he resigned upon his appointment to the Supreme Court in 1898.

In March 1888, he became Attorney General in the government of Sir Philip Fysh. Since the Premier was in the Legislative Council, Clark was responsible for introducing legislation into the Assembly. Over the next five years he shepharded through the lower house much progressive and humanitarian legislation. His goal was to break the power of property in Tasmanian politics. The legislation covered such diverse reforms as legalising trades unions, providing parlimentary salaries, preventing cruelty to animals, reforming laws on lunacy, trusteeship and companies, the custody of children and the protection of children from neglect and abuse. He also introduced laws to restrict the immigration of Chinese. Clark failed in his attempts to impose a land tax, introduce universal (including female) sufferage and centralise the police.

Clark was the most important 19th-century Attorney-General of Tasmania. His considerable drafting skills enabled him to modernise and simplify the law over a number of areas. He introduced a total of 228 bills into the Assembly. His best known archivement as Attorney-General was the introduction of proportional representation based on the Hare-Clark system of the single transferrable vote;

Map of the Mainline Railway, circa 1880

One of the major political issues addressed by Clark during his career concerned the Tasmanian Main Line Railway - a railway which connected the two main cites of Tasmainia, Hobart and Laucestion. In 1873, the Main Line Railway Company began the construction of the line, which opened in 1876. There were a series of disputes between the Company and the goverment over payments due to the Company under its Deed of Concession. Clark had spoken about the problem, advocating the acquistion of the Company by the government as early as 1878.. With his dual qualifications as both an engineer and a lawyer, Clark was in a unique position to understand the issues involved. As Attorney-General, he was the government's chief negotiator.

In 1889, the Supreme Court awarded the Company arrears of interest. Clark urged the government to appeal, and in 1890 he went to England to argue the case before the Privy Council. Clark may have been a poor speaker in court, but he was a superb negotiator. It was his forte. With full powers, he settled the case out of court by arranging the purchase of the Company's property by the government

In 1891, Clark returned to Tasmania from London by way of the United States. It was a fateful choice. He was introducued to Oliver Wendell Holmes, with whom he corresponded for the rest of his life. The contacts and people he met in Boston were to profoundly inform his views about political constitutions. Not the least of the consequences was the introduction of the term Commonwealth to describe the Australian polity.

In 1892, the fall of the Fysh goverment ended Clarks term as Attorney-General. When Sir Edward Braddon formed a government in 1894, Clark again became Attorney-General. He resigned in 1897, when his colleagues failed to consult him over the lease of Crown land to private interests, after which he became Leader of the Opposition. Clark left politics to become a Justice of the Supreme Court of Tasmania in 1898.

Hare-Clark Electoral System

In 1896, after several failed attempts, Clark was able to get a system of proportional representation adopted by the Tasmanian Parliament, but it was to be only on a trial basis for both Hobart (to elect 6 MPs) and Launceston (to elect 4 MPs). The Hare-Clark system was abandoned in 1901 and then re-adopted in 1907. It contines in use to the current day.

"The specific modification introduced by Mr A I Clark, Attorney-General for Tasmania, is the provision devised by him for eliminating the element of chance in the selection and distribution of quota-excesses or surplus transfer votes."

The provision described as Clark's own was to transfer all votes to 'next order of preference', rather than a random sample. This first 'Hare-Clark system', as it was immediately known, was renewed annually until suspended in 1902 and then finally re-introduced for the whole State in 1907.

Early Legal Career

As a boy and young man, Clark grew up in a family which ran a successful engineering business. Clark

Clark was called to bar in 1877. He soon gained a reputation as a criminal lawyer in a 'poisoning case', but went on to gain a large practice in civil and commerical law as well. He practiced law both while in and out of parliment. During those periods when he was not serving as Attorney-General, he worked hard to build a successful practice. He failed to find his fortune in the law due to his generosity and refusal 'to accept anything beyond a reasonable and modest fee'. In 1887 he went into partnership with Matthew Wilkes Simmons.

His career in private practice gave him a broad grounding in the law which stood him in good stead once he was promoted to the bench. Clark was knowledgable in all branches of the law, but pre-eminent as a constitutional lawyer and jurist.

Development of the Australian Constitution

Rough notes

Clarks admiration for the US Constitution

1. Clark learns about the American Constitution via the American Club

2. American Unitarian connections - Moncure Conway and Oliver Wendell Holmes - When did Clark start corresponding with Holmes? Why is his son named Wendell? Wendell from Holmes's grandmother

The 1890 Trip to London and Clarkes' Draft Bill

3. The 1890 trip to London - decision to travel back via Boston - writes draft constitution (before or after Boston?) - meetings with Holmes - the term 'Commonwealth' appears

• Dates: May - early Nov 1890

• On return with the technical aide of W. O. Wise, Tasmanian Parlimentary Draftsman, drafted and printed a bill

• Orignally for the Tasmanian delegates

• Draft sent to Pakes, Barton and probably Playford as well (12/Feb/1891)

4. The Draft is set out as a bill of the Imperial parliment. Its provisions are extracted from:

• British North America Act and suppliments upto 1890

• US Constitution as at 1890

• Federal Council of Australia Act

• Various Australian state constitutions

The was an element of the 'fitter' about Clarks' bill. It involved "scavenging, improvising, tinkering, taking from here and ther, using material in ingenious ways, in short the processes involved handy work, which was itself characteristically Australian"

5. Oliver Wendell Holmes Jr's influemce on Clarkes' draft.

The 1890 Convention in Melbourne

6. Attends 1890 convention in Melbourne and 1891 convention in Sydney. Member of the Constitutional Committee and the Judicary Committee. Circulates draft constitution. Draft freely available to delegates but not intended to be publically available (making p24)

The 1891 Convention in Sydney

7. Easter 1891 - 'Lucinda' - Clark not present, stuck in Sydney with flu (swindle p19) - Griffith converts Clarks draft (badly) to outline of final form (ref???) - loses most guarentees - High Court becomes a creature of Legistature.

Federation on Hold - the 1890's Depression

8. 1890's depression - convention system pauses

The 1897 Conventions

9. 1897 Convention (Adel/Mel/Syd) - Clark does not attend - Bernhard Wise puts forward proposals, but they are mired in technicalities and not adopted - Correspondence - High Court as a equal to Legislature and Administration fixed - withholds approval of final document (why?)

What are the dates of Clarks' other two visits to the USA?

Political issues of the Conventions - money! Clarks solution adopted in 1927

Even by 1897, more than half a decade after it baceame clear that the Australian Constitution would place a considerable emphasis on the American experiance, notably so in dealing with the Federal judiciary, it seems surprising that Barton could acknowledge that he, and perhaps others, had little more than a superficial knowledge of the working of the American instrument of government" - Aust Democract P16

Later Life and Judicial Career

Mr. Justice Andrew Clark, after his appointment to the Supreme Court in 1898

1898 appointed Puisne Judge of Supreme Court

1901 promoted Senior Judge

Clark died on 14 November, 1907 at his home in Hobart. He was survived by his wife and seven children.

External links

• Dictionary of Australian Biography

• Australian Dictionary of Biography online

Category:Members of the Tasmanian House of Assembly

Category:1848 births

Category:1907 deaths

Category:Australian federationists