Papers on Parliament No. 61
May 2014
John Bannon "Shadow or Illumination? Kingston’s Rival Constitution"
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In mid-October 1890 the Attorney-General of
Tasmania Andrew Inglis Clark returned from a trip to Britain and the United
States. His journey had taken place after the decision made by the
13 representatives of the Australasian colonies in Melbourne in February
1890 to hold a convention of delegates to commit to an ‘early union’ of the
colonies and ‘to consider and report upon an adequate scheme for a Federal
Constitution’.[1] It was a well-timed study tour. By the time of his return, all the
colonial legislatures except Western Australia had appointed their seven-member
delegations (with New Zealand selecting only three). Clark himself was one of
the Tasmanian seven. With his recent on-the-spot examination of relevant
jurisdictions overseas, and his well-developed ideas on the shape of such a
union, he pre-empted the discussion by immediately sitting down to work on a
draft constitution for the federation.
Portrait of Charles Cameron Kingston, photographed by Swiss Studios, Melbourne.
Image courtesy of National Library of Australia, PIC/6980
The National Australasian Convention had been
called for the beginning of March 1891; Clark completed his draft, had it
printed, and circulated it with a covering letter on 12 February. It is
certain that Sir Henry Parkes, the host of the Convention, and Edmund Barton received
a copy in New South Wales, and it seems that he also sent copies to other
premiers, among them South Australia’s Premier Thomas Playford. Playford in
turn passed it on to his protégé and adviser on constitutional matters, his
close political colleague and former Attorney-General Charles Cameron Kingston,
for his consideration. By 26 February Kingston had produced his own draft.
Clark and Kingston had done a remarkable job in the short time available,
although clearly they both had the matter under consideration for some time.
This paper examines the origins and nature of the two drafts and seeks to
restore the significance of Kingston’s draft to the process that led to the
Constitution of the Commonwealth of Australia and to assess his drafting
contribution against that of Clark in terms of its substance, influence and
form.[2]
By 1891, Charles Cameron Kingston had been a
member of the South Australian Parliament for nearly ten years. In 1884 at the
age of 34 he became Attorney-General in John Colton’s government. Out of office
the following year, he remained prominent in opposition, and in June 1887 when
Thomas Playford succeeded Sir John Downer as Premier, Kingston returned to the
portfolio for the ensuing two years. In that year he and Playford met at some length
with Henry Parkes in Adelaide and much of Kingston’s interest in taking
practical steps to federation stemmed from that time. A major topic of this
meeting, pressed on Parkes by the South Australians, was the need for a common
approach and uniform legislation in the colonies to deal with the issue of
‘Asiatic aliens’ and ‘coloured’ immigration. A concern from the days of the
Victorian gold rush, exacerbated by the use of Pacific Islanders to develop the
Queensland sugar industry, it had become a particular issue for South Australia
due to its jurisdiction over the Northern Territory.
The outcome was the Intercolonial Conference on
the Chinese Question of 1888, which Parkes agreed to hold in Sydney under his
chairmanship. Kingston, as the prime initiator of the conference, played a
prominent part. As a radical protectionist he was a strong advocate of
restricting ‘Asiatic’ immigration and what became known as the ‘White Australia
Policy’. His radical position made no distinction between his attitude on immigration
and his role as a strong defender of the free movement and full citizenship
rights of Chinese and others who were or had become residents in Australia.
These were the principles embodied in the draft bill that a committee
comprising Kingston, Alfred Deakin (Victoria) and J.M. Macrossan (Queensland)
prepared and saw adopted by the conference. Kingston’s policy role and his
skill as a draftsman were recognised and positively commented on by his
colleagues. The aim was for each colony to pass the bill either of its own
volition or under the provisions of the new Federal Council of Australasia Act
(see below) which could create common laws among its members. The ‘Chinese
question’ was one of a number of issues, including defence, trade and customs and
posts and telegraphs, driving the examination of models of federation which
would enable such common supra-colonial issues to be dealt with on a unified
and uniform basis and this conference provided a further impetus to the federal
movement. Neither Clark of Tasmania nor Sir Samuel Griffith of Queensland was
present in 1888, but, of the nine delegates, a number were later to attend the
1890 Melbourne Conference (Parkes of NSW, Duncan Gillies and Deakin of
Victoria, Playford of South Australia and Macrossan of Queensland) and the 1891
Convention (Parkes, Gillies and Deakin, Playford and Kingston, Macrossan, and
Philip Fysh from Tasmania).
The Australasian Federal Council was established
by imperial statute in 1885 to facilitate colonial cooperation and uniform
legislation among its member colonies. It was seen by some as an end in itself,
but for many federalists, including Kingston, merely as a useful precursor to a
full federation. The self-governing colonies of Victoria, Queensland and
Tasmania joined, as did the Crown Colonies of Western Australia and Fiji.
Others rejected it. New South Wales refused to join, Parkes believing that it
was half-baked. New Zealand stood out. In South Australia, despite John
Downer’s strong advocacy and Kingston’s support, the Legislative Council
rejected the enabling legislation. Kingston, as Playford’s Attorney-General on
coming to office in 1887, tried again and eventually managed to secure passage
of a bill that would enable South Australian representation from 1889. To get
the legislation through, Kingston had undertaken to press for a broader and
more representative membership to overcome objections in South Australia to the
practice of only two members both drawn from the incumbent government forming
the delegation. He also had to agree to a ‘sunset clause’ in the legislation
which allowed membership for a period of two years only, subject to renewal of
the Act at the end of the period. Although attempts were made to do this in
1890, the support of the upper house could not be gained, so South Australia
had just two years membership. The only Federal Council meeting its delegates
attended was in 1889 in Hobart.
Playford and Kingston were the South Australian
delegates to the 1889 meeting. Here, to welcome him to the fold, Premier
Playford was elected as sessional chairman. Clearly the Council was impeded
greatly by the absence of New South Wales and, to a lesser extent, New Zealand.
Kingston, based on the argument he had successfully pressed in his own
jurisdiction, believed his proposal to increase and broaden the membership
would be a means of inducing them to get involved as well. But he never lost
sight of the aim of broader union. He lobbied strongly before the meeting for
an expanded membership, and helped prepare resolutions in committee which
Deakin supported. Kingston’s urgency for the Council to be seen as a vehicle
for federation was not fully supported by all the delegates, but was
influential. Deakin had the Council carry a significant addendum to the
committee’s motion: ‘That in recommending that the constitution of the Council
shall be amended by the increase in the number of its members, this Council
contemplates the early consideration of the question of Australian
Parliamentary Federation by the enlarged Council’.[3] Among those
present at that Council meeting were the soon to be very significant Samuel
Griffith (Queensland) and Andrew Inglis Clark (Tasmania). With Kingston they
were to form the drafting committee at the 1891 Convention.
Playford lost office in June 1889, but returned
to government with Kingston’s support in August 1890. Playford again offered
Kingston a ministry but he refused, claiming he ‘did not feel at liberty’ to
accept the honour.[4] The press commented that ‘Mr Kingston’s private engagements and
other circumstances’ prevented his joining the ministry.[5] The reasons
for him not doing so are something of a mystery. He did have financial
problems, but at no other time in his life do these seem to have affected his
willingness to accept public office. It may have been that he was grappling
with an illness, as he suffered rheumatism and osteo-arthritis. It was during
this period that he began to use a stick to assist his walking. However,
Kingston continued to play an active role in the House of Assembly and
maintained his support of Playford. His backbench status prevented him from
being a delegate to the 1890 Melbourne Conference. This was the only
significant federation conference of any kind he missed. He ended the decade as
the most consistent individual attender at all the significant meetings: all
sessions of the two Federal Conventions, four Premiers’ Conferences, and as a
member of the London delegation in 1900. On this occasion, despite his
‘personal circumstances’, he was induced by Playford to make himself available
and was elected as one of the five House of Assembly representatives to the
1891 Convention to be held that March.
So it was that in February, when he received a
copy of Clark’s draft bill, he was able to respond by rapidly drafting a bill
himself as a preferred alternative. He must have been toying with ideas prior
to receiving Clark’s document—his long-term clerk George Sharp’s comment made
some years later that ‘If he prepared one draft of the Commonwealth
Constitution he prepared a dozen’ may refer at least in part to this period.[6] In any case his final version was drafted in a very short time.
Between the date of its reception, sometime after 12 February, and 26 February
Kingston produced his own document and under Playford’s authorisation had it
printed by the Government Printer and put into circulation. To assist his
thinking he had also just seen a manual prepared by his political foe Richard
Chaffey Baker which had been published in Adelaide that January and made available
to all delegates and others involved. This invaluable document compared the
constitutions of the United States, Canada, and Switzerland with commentary on
federal systems generally.[7]
J.A. La Nauze refers to the Clark and Kingston
drafts as ‘forbiddingly formal documents’ as they were ‘nothing less than
complete anticipations of the Convention’s task, draft constitutions for a
federal union’.[8] Their significance was not lessened by the fact that there were
‘few original points in either of them’.[9] This typically
acerbic comment simply meant that they both incorporated examples from the
British North America Act and the Constitution of the United States sometimes
word for word. There is something of a mystery concerning the whereabouts and
distribution of Kingston’s draft. It was virtually without reference by
contemporaries and can only be found bound-in as document number six with no
annotations in the collection made by Samuel Griffith. The existence of
Kingston’s draft code was to be referred to occasionally during forthcoming
proceedings, but was thereafter entirely forgotten. Griffith’s lack of
acknowledgement, John Quick and R.R. Garran’s[10] ignorance of
its existence, and later historians such as La Nauze’s dismissal of its
significance have served it ill. On the other hand L.F. Crisp[11] and Alex Castles (whose article has been cited earlier), give it
the serious treatment it deserves.
The reason that it deserves serious treatment is
that even without knowing how widely circulated it was, Kingston’s presence at
all critical meetings in the process and his key role as a member of the
three-person drafting committee would have ensured that his views were well
known and argued. Kingston was no shrinking violet as an advocate.
Significantly he and Clark were both included in an informal and private dinner
with Parkes on the eve of the Convention, presumably because they had set down
their ideas on paper. Clearly it would have been read by Griffith and other
members of the core drafting committee in 1891. It would certainly have been
advocated by Kingston in the course of the discussions of that drafting
committee on the Lucinda, chaired by Griffith and comprising Kingston
and Barton who had replaced Clark who was ill and only joined the group much
later. Others including Sir John Downer were there in the early stages, but the
threesome had done most of the work by the time Clark was able to come aboard.
Kingston’s continuing presence gave him an opportunity to press features of his
bill that Clark was denied. Clark later famously claimed that the group had
‘tinkered’ with his bill, and they ‘messed it’ but he was unable to restore the
situation.[12]
The question remains to what extent was Kingston
simply reworking Clark or striking out on his own? La Nauze unkindly describes
both drafts as scissors-and-paste work of the two most relevant examples of the
Canadian Act and the Constitution of the United States of America. But they
both certainly go beyond that. I want to focus on three aspects of the drafts:
firstly the content and some of the differences between them; secondly the
drafting and drafting principles involved; and thirdly their impact on the
final outcome.
In relation to the comparison of the content of
the drafts, this has been well analysed by previous scholars including La
Nauze, L.F. Crisp and Alex Castles. Clark heavily based his draft on his view
of the US Constitution. Kingston was less familiar with that and other
examples, but had a more practical and local knowledge of the political issues
involved in managing the Westminster system and grafting it onto a federal
structure. He was a curious mix of a great national visionary with a radical
democratic agenda, coupled with a very strong states’-rights philosophy. He did
not wish to inhibit the Commonwealth in the exercise of its authority but he
sought to closely define that authority and clearly enunciate its scope. His
democratic principles and suspicion of national tyranny attempted to retain
accountability to the states and to the general electorate.
Clark had left open the question of responsible
cabinet government and whether executive councillors needed to be members of
parliament or not. Kingston very explicitly required that ministers were
members. But his states’-rights views emerged in his requirement that every
state should be represented in the cabinet by a minister; that senators had to
have been members of their colonial parliament; and that the governors of
colonies were to be elected by the electors and again to be drawn from persons
who had served in local Houses of Parliament (this can be seen as foreshadowing
his long campaign against the Colonial Office recommendations of governors
external to the jurisdiction they were to serve in). In relation to the future
high court (he called it the Federal Supreme Court), he and Clark were at one
on the elimination of the right of appeal to the Privy Council from Australia’s
highest court. (This became one of his ongoing causes for the next decade.)
They agreed that the judges should be appointed by the Governor-General in
Executive Council, but Kingston would have them chosen only from those who had
been or were state Supreme Court judges.
La Nauze lists ‘some interesting variations and
additions’ to Clark’s draft, which is not comprehensive but gives a feeling for
the differences.[13] Crisp does a similar exercise. For these purposes I would just
single out a few.
Under ‘powers’, a particular cause of Kingston’s
was laws in relation to ‘Trades unions and organisations of employers and
employés, and tribunals for the settlement of industrial disputes’.[14] His proposal that the Commonwealth have such a power eventually
found its way into the Constitution.
The power ‘to fix the right of any colonies with reference to the
user of the water of any river or stream’ was something that Clark, as a
Tasmanian, was probably not particularly aware of or excited by but it was one
of the federal obsessions of the South Australians in particular as the
end-users of the River Murray. Not only did it occupy a lot of subsequent
futile debating time, but remains an issue to this day.
Two concepts not in Clark’s draft had great
significance:
The first, based on Kingston’s advanced concept
of democracy, influenced by Baker’s learned exegesis, is the machinery of the
referendum. In what would be seen as an extreme form, Kingston provided that
one third of the members of either House, or resolutions from any two state
legislatures, or 20,000 voters by petition could all demand a referendum before
assent was declared to a federal Act. A majority of votes (but with no majority
of states provision), would carry the question. The referendum would also apply
to amendment of the Constitution requiring at least two thirds of the Colonial
legislatures and a two-thirds majority of voters to confirm it. The latter
provision as modified is now the means by which the Constitution can be changed
or state boundaries altered.
The second is the means by which money bills
could be handled and the issue of resolution of deadlocks between the Senate and
the House of Representatives. Kingston came from a jurisdiction where this
matter was critical, as no South Australian government, whether conservative,
populist, or progressive had been able to break the veto of the Legislative
Council or overcome its claim of equal power. Kingston recognised this as a
great potential sticking point between the Senate and the House of
Representatives, while acknowledging the different composition, role and
mandate of the Senate in the federal structure to that of a Legislative Council
in a colony. A practical way had been found to deal with this, involving what
became known as the ‘South Australian compromise’. Kingston incorporated it
into his draft. Money bills could only originate in the lower house, and the
Senate would be prevented from altering them although it could ‘suggest’
amendments—but it must either pass or reject. This clause adopted in 1891 and
repeated in 1897–98 was critical to the passing of the Constitution. Without
it, the night of the ‘providential catarrh’ in Adelaide[15] would have
seen a walkout of the big colonies and federation put on hold for many years.
The second aspect of focus is the form of words:
the way in which the measure is drafted. La Nauze refers to Kingston having
some ‘justified vanity of draftsmanship’ and sees him making some changes of
names and some pruning of the verbiage and rearrangement of Clark, ‘with some
interesting additions of Kingston’s own’.[16] As mentioned
above, Kingston’s reputation as a common-sense draftsman was increasing, and
his exposure on the intercolonial scene had reinforced this. Plain English and
common sense were his rules, and he sought to reduce verbiage wherever
possible. In this context one can compare the respective titles: Clark’s clunky
title was A Bill for the Federation of the Australasian Colonies of New
South Wales, Queensland, Tasmania, Victoria, Western Australia, and the
Province of South Australia, and the Government thereof: and for Purposes
connected therewith. Kingston’s title was simply A Bill for an Act for
the Union of the Australian Colonies. Griffith too prided himself on a
spare and clear wording and his changes to much of Clark’s text demonstrate
this. For example, when dealing with transference of authority from state to
governors to the Governor-General, Inglis Clark uses 194 words; Griffith took
it down to 168, while Kingston’s was 112. In dealing with a power, Clark writes
‘To regulate commerce and trade with other countries and among the several
provinces’; Kingston simply ‘Trade and Commerce’.
A later comment made by the historian Sir Ernest
Scott, who was a Hansard man in the early years of the Commonwealth Parliament,
puts it well, referring to Kingston’s:
command of a crisp precision of phrase and a
sure sense of the value of words that could express a meaning in the shortest
and most unmistakable terms. Instead of saying that ‘any person charged with an
offence against the said section in the manner aforesaid and being without
reasonable cause or excuse should on conviction before a court of summary
jurisdiction be liable to a fine not exceeding £20’, Kingston would write at
the end of a tersely worded section: ‘Penalty £20’—and, oddly enough, neither
courts nor persons affected ever had the least doubt as to what he meant.[17]
The Australian Constitution is much more in the
language and style of Kingston rather than Clark.
The third aspect is the impact of both men and
their draft and ideas. This is very well analysed by Castles in the article
cited earlier, who demonstrates the Kingston influence in many sections. While
Kingston’s draft is forgotten in the historical record, Kingston’s contribution
proved to be critical at this seminal period in 1890–91 and extended, in a way
Clark’s did not, through to the end in 1900. A number of Kingston’s solutions
or provisions have been maintained. While the structure and form can be
attributed to Clark, in terms of practical working provisions Kingston’s legacy
remains including that of dealing with money bills, deadlocks and the
referendum. He was eventually successful in relation to the settlement of
industrial disputes and unsuccessful in relation to the control of the waters
of the river. His more succinct, direct, and practical draft clearly influenced
or reinforced those principles in the primary draftsman of the 1891
Constitution Sir Samuel Griffith. It deserves not to be forgotten and to be set
in context with A.I. Clark’s remarkable contribution.
[1] Official Record of the Proceedings
and Debates of the Australasian Federation Conference, Government
Printer, Melbourne, 1890, p. iii.
[2] The major contribution to this study is the work of Alex
Castles. See Alex C. Castles, ‘Clark, Kingston and the draft Constitution of
1891’, in Richard Ely (ed.), A Living Force: Andrew Inglis
Clark and the Ideal of Commonwealth, Centre for Tasmanian Historical
Studies, University of Tasmania, Hobart, 2001, pp. 261–85.
[3] Federal Council of Australasia, Official
Record of Debates, 4 February 1889, The Council, Hobart, 1889, pp. 109,
111 [emphasis added].
[4] South Australian Register (Adelaide),
18 August 1890, p. 4.
[5] ibid., 6 January 1892, p. 4.
[6] The Mail (Adelaide), 8 July
1922, p. 13.
[7] Richard Chaffey Baker, A Manual of
Reference to Authorities for the Use of the Members of the National
Australasian Convention ..., W.K. Thomas,
Adelaide, 1891.
[8] J.A. La Nauze, The Making of the
Australian Constitution, Melbourne University Press, Carlton, Vic.,
1972, p. 24. Clark and Kingston’s drafts are outlined in Appendices 2 and 3
respectively, pp. 292–6.
[9] ibid., p. 24.
[10] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth,
Angus and Robertson, Sydney, 1901.
[11] L.F. Crisp, Federation Fathers,
Melbourne University Press, Carlton, Vic., 1990, at pp. 292–6, which includes a
useful table of comparison of some of the more significant features of Clark
and Kingston’s drafts at Table 5.3.
[12] The Mercury (Hobart), 29 July
1897, supplement, p. 1.
[13] La Nauze, op. cit., p. 295.
[14] ibid.
[15] Quick and Garran, op. cit., p. 173. For a dramatic
description of this moment of crisis see La Nauze, op. cit., pp. 141–6.
[16] La Nauze, op. cit., p. 26.
[17] Quote drawn from Crisp, op. cit., pp. 357–8.
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