Edmund Barton

BARTON CAPTIONS

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Edmund Barton, about 17 years old

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Pictorial Collection

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Edmund Barton as a young graduate

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Pictorial Collection

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Edmund Barton as a cricketer, Melbourne, Christmas 1870

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Pictorial Collection

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Portrait of Lady Barton

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Pictorial Collection

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‘Australia Faces the Dawn’

        Published in The Bulletin 2 January 1901

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Edmund Barton

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Pictorial Collection

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Edmund Barton with Sir John Forrest in Venice on their way to London for the coronation of Edward VII and a Premiers conference, June 1902

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Pictorial Collection

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His Honour Sir Edmund, Senior Puisne Judge, 1903

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Sir Edmund Barton, Jan 1914

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Pictorial Collection

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Edmund Barton seated with Deakin

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Thomas Watson Collection no.1

Pictorial Collection

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The Drafting Committee for the Commonwealth Constitution, 1898—Downer, Barton and O’ Connor

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Pictorial Collection

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‘Australia’

Published in Vanity Fair 16 October 1902

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Rex Nan Kivell Collection

Pictorial Collection

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Norman Lindsay 1879–1969

‘Sleeping At His Homework’

Published in The Bulletin 19 January 1911

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Pictorial Collection

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‘Experience Teaches—Or Rather, Should Teach’

Published in The Worker 18 May 1895 Vol. 6

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‘Hurrah For A White Australia’

Published in The Worker Front Cover 11 March 1899 Vol. 10

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‘Women’s Liberation, Still Boss’

Published in The Bulletin 20 September 1902

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Sir Edmund Barton

Published in The Lone Hand 1909

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Pictorial Collection

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Opening of the First High Court of Australia in Melbourne, 1903

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Pictorial Collection


Biography

Edmund Barton was born in Glebe Sydney in 1849 to William and Mary Louise (née Whydah). A clever boy with a love of literature, music and art, Barton was educated at Fort Street Model School and Sydney Grammar School.

It was at Sydney Grammar that Barton first met Richard O’Connor. The lives of Barton and O’Connor would run parallel courses; each dedicated to the cause of Federation, both members of Australia’s first Federal Cabinet, and, ultimately, both would sit on the nation’s first High Court.

Matriculating to the University of Sydney in 1865, Barton studied Classics under Professor Charles Badham, engaged in debates held at the Mechanics School of Arts, and cultivated his love of cricket. In 1868 he graduated with a Bachelor of Arts in Classics and two years later received a Masters of Art. On the 21st of December 1871 Barton was admitted to the Bar. The following year he became engaged to Jane (Jean) Mason Ross. Barton, however, was slow to establish his legal career and financial insecurity prevented the two from marrying until 1877.

With his interest in debating and a keen legal mind Barton was intent upon entering politics. In the 1870s and 1880s members of Parliament were unpaid. The colonial parliaments were composed of the Crown represented by the Governor, a Legislative Assembly of elected members, and the Legislative Council, a house of review whose members were appointed for life. Voting was not compulsory. Only those male Australians over the age of twenty-one, who either owned property to the value of one hundred pounds or paid rent to the value of ten pounds, were entitled to vote or to stand for the Legislative Assembly. Plural voting was allowed for university graduates and those who owned more than one property. Despite these limitations, NSW was considered to be democratically progressive.

Defeated for the University of Sydney seat in the Legislative Assembly in 1876 and again in 1877, Barton was eventually successful in 1879. NSW politics of this period were divided between the equally conservative Protectionist Party espousing tariff protection of State products and the Free trade Party who believed in an open economy. Each State effectively operated as a separate country imposing import and export taxes on goods travelling across borders. Economic competition between the States was a major obstacle standing in the path of a federated nation. It was as a Protectionist that Barton initially entered the Legislative Assembly, however, over the next 20 years his commitment to a Federation would see him advocate free trade within Australia, while calling for a protectionist stance against the world. Barton’s rise to political prominence was rapid, and by 1883 he had become Speaker of the Legislative Assembly of NSW.

In the early 1880s Barton became a member of the Athenaeum Club. Here, he could satisfy his epicurean taste for fine food and wine while sharpening his debating skills in conversation with some of Sydney’s most respected intellectuals, artists, professionals and politicians. The proprietor of the Sydney Morning Herald Sir James Fairfax, the editor of the Bulletin J.F. Archibald, the Professor of English Literature Sir Mungo MacCallum, the artist Julian Ashton, as well as the politicians Richard O’Connor and Sir William Lyne, were members. The writers Mark Twain and Robert Louis Stephenson visited the Athenaeum on their travels through Sydney.

By the early 1890s Barton was faced with many competing demands for his time and energy. Having contributed to the first draft of the Constitution in 1891, Barton dedicated many unpaid hours to speaking at public meetings and publicising the cause. However, Barton was under considerable pressure to provide for his growing family. When on the 23rd of October 1891 Barton accepted Premier Dibbs’s offer to serve in his protectionist government as Attorney-General, he negotiated the right to maintain his private practice as a barrister. Two years later Barton’s parliamentary responsibilities came into direct conflict with his private practice when he accepted a brief against the Crown and was forced to resign.

Between 1893 and 1997 Barton passionately devoted himself to the Federation movement and to the drafting of the Constitution. By the end of the century Barton had overseen the drafting of the amended Constitution, its protracted and difficult passing through the NSW Legislative Assembly and Council, as well as an exhausting campaign through two referenda to its eventual approval by the British Parliament in 1900.

Although it was fully expected that Barton would be selected to be the first Prime Minister to take the people to their first Federal election, the new Governor General Lord Hopetoun instead selected William Lyne Premier of NSW. In a mark of solidarity with Barton, appointed members of Cabinet refused to serve under Lyne. Barton was finally appointed the nation’s first Prime Minister, taking the portfolio of Minister of External Affairs.

The celebrations for Federation in Sydney took place on 1st January 1901. For Barton, however, it was the start of yet another campaign trail as a Federal election now had to be fought and won. In March 1901 Barton and his entire Cabinet, including old friends and allies, Alfred Deakin, Charles Kingston and Richard O’Connor, were formally approved by the Australian voters.

Although only Prime Minster for a little over two and a half years, the Australian Public Service, the instigation of the White Australia Policy, women’s right to vote and the High Court were all established during his term.

Having twice refused a Knighthood, Barton finally accepted a GCMG in 1902. In September 1903, worn out by the responsibilities of being Prime Minister and the long and exhausting federation campaign that preceded it, Barton resigned.

Shortly afterwards Barton was appointed to sit on Australia’s first High Court. For the next 17 years Barton interpreted the Constitution he had helped to create. Before the opening of the present High Court in Canberra in 1980 the High Court divided its time between the State capital cities. Despite the travelling, the life of a High Court judge was far less onerous than that of a politician. Barton was finally able to resume his dinners at the Athenaeum Club and spend more time with his wife, six children and grandchildren. Barton also had time to indulge his love of literature. As his son Judge E.A. Barton fondly remembered: ‘His great love was Shakespeare. It would be scarcely an exaggeration to say that he remembered every act and every scene in the plays and innumerable passages were stored in his memory.’ (Reynolds, 1948, p. 72)

In January 1920, at the age of 70, Edmund Barton died suddenly of heart failure at Medlow Bath in the Blue Mountains.


Towards Federation

At the Athenaeum Club in the early 1880s Barton met and conversed with the Tasmanian Attorney-General, Andrew Inglis Clark, a passionate spokesman for an American model of Federation. It was not, however, until Barton read reports in the press of the Tenterfield address Henry Parkes gave to a meeting in the Sydney Town Hall that he gave his full and unconditional commitment to Federation.

In March 1891 Barton proposed his blueprint for Federation at the National Australasian Convention. He argued that an elected senate composed of State representatives would effectively balance the powers between the States and a Federal government. Barton also advocated an autonomous Australian legal system, and the necessary abolition of the right of appeal to the British Privy Council. Among others, the Victorian politician Alfred Deakin was impressed by Barton’s speech.

The convention established a constitutional committee to which Samuel Griffith was appointed chairman, and Henry Parkes, Edmund Barton, Charles Kingston, Alfred Deakin, Andrew Inglis Clark and John Downer were elected members. In turn the committee elected a drafting committee, Griffith, Inglis Clark and Kingston would be responsible for drafting the new constitution. When Inglis Clark fell sick, Barton’s position was suddenly elevated to the drafting committee for the new constitution.

Although Barton was disappointed that the first draft Constitution had not abolished the right of appeal to the Privy Council, it was, nonetheless, an extraordinary feat accomplished in an astonishingly brief period of three days. The draft Constitution drew upon the Constitutions of Canada, the United States and Switzerland, as well as the Westminster system. One of the democratic safeguards of the new Constitution, borrowed from the Swiss, was the clause that the Constitution could not be amended except by referendum.

Having written a draft Constitution, the Convention members returned to their home States to lobby the governments and win the support of the people. In NSW, the Federation movement met with opposition to the powers the draft Constitution invested in the Senate. George Reid, leader of the Free Trade Party in NSW, was chiefly concerned that the most populous state of NSW would be diminished by a Senate whose State representation was equal rather than proportional to the population.

In July 1894 Barton was defeated for the seat of Randwick. For the next three years Barton devoted himself entirely to the Federation cause, speaking at over 300 public meetings. By 1897 Barton was considered leader of the Federation movement of Australia and was elected chairman of the drafting and constitution committees at the Federal Convention in Adelaide of March 1897.

For the next year Barton worked himself and his colleagues to a point of exhaustion. In May Barton was nominated to the NSW Legislative Council in order to facilitate the Enabling Act necessary for the referendum. By the Sydney September meeting of the reconvened Convention, Barton was deeply frustrated by the number of amendments imposed by the Legislative Council, most of whom were opposed to Federation. Throughout the summer of 1898 the drafting committee worked on the Constitution. This time, Barton included the abolition of the right of appeal to the Privy Council. In March Barton began the long and intense campaign to see the draft Constitution finally succeed at referendum.

In April 1898 the Referendum narrowly failed in NSW. With the exception of Western Australia, who refrained from holding a Referendum until 1900, the draft Constitution was approved by the other colonies.

Resigning from the Legislative Council, Barton won the seat of Hastings and Macleay in order to propose a second Enabling Act for a second referendum. In 1899 the voters of NSW finally accepted the draft Constitution.

In 1900 Barton was selected as a delegate to accompany the Constitution Bill to England, where it was to be put before the English Parliament. Queen Victoria objected to the name Commonwealth of Australia as it resurrected memories of the English Commonwealth under Oliver Cromwell. However, no serious attempt was made to dissuade the Australians from using it. The sticking point for the British was the abolition of the Privy Council as the final court of appeal in the Australian legal system. After much negotiation a compromise was reached which preserved the identity of the original constitution. Only non-constitution matters could be referred to the Privy Council.

In recognition of his status as leader of the Federation movement of Australia, Edmund Barton was appointed Prime Minister of the Commonwealth of Australia on Christmas Day 1900.


Prime Minister

On the 1st of March 1901 Parliament was opened by the Duke of York, later to be crowned George V. The first Cabinet consisted of Edmund Barton as Prime Minister and Minister for External Affairs, Alfred Deakin Attorney General, George Turner as Treasurer, James Dickson as Minister for Defence, Charles Kingston as Minister for Trade and Customs, John Forrest as Post-Master General, and William Lyne as Minister of Home Affairs. As there were only seven paid positions within the Cabinet, Richard O'Connor was appointed an unpaid honorary member. Edmund Barton was Prime Minister for a little over two and a half years, yet this brief period was to shape the Commonwealth for many years to come.

In 1901 Federal Parliament opened in the Victorian Parliament House it would continue to occupy until 1927 when the Federal Parliament House opened in Canberra. Initially, however, Barton conducted government business from an unpretentious office in Sydney before an office could be found for him in Melbourne. Barton claimed that he could carry all government business between the capital cities in a single Gladstone bag. (Bolton, 2000, p. 229)

The Public Service was yet to be established; in the early days the responsibilities of administrating government procedure fell to the Prime Minister’s Private Secretary. On the 13th of May Barton made the following suggestion to his Private Secretary: ‘Will you keep a little appointment book for me, which you might note up and show me when we meet each day.’ (Barton Papers, Manuscript Collection)

In the early 1900s Australia was still suffering the after-effects of the depression of the 1890s and the drought that had prolonged it. Although unemployment was high, workers were unwillingly to relinquish the high wages they had gained during the labour shortages of the gold rush. Foreign workers, in particular the Chinese and Pacific Islanders, were singled out for attack as they were prepared to work for cheaper wages. In passing the sequence of legislation that became known as the White Australia Policy, the Barton government was reflecting and responding to the public sentiment of the time.

The first year in office saw Parliament pass the Pacific Island Labourer Act 1901, legislating for the deportation of 10,000 Pacific Islanders who had been mainly working in the sugar plantations of Queensland. In the same year Parliament passed the Immigration Restriction Act 1901.

Unwilling to antagonise the British, whose Empire included many non-Europeans, and who were negotiating a treaty with the Japanese, with an immigration act which overtly discriminated on the grounds of race and colour, the Barton government devised a more subtle form of discrimination. Immigrants would now be required to sit a dictation test in any European language of the Custom Officer’s choice.

In 1902 Parliament approved the Commonwealth Franchise Act 1902. Although the act extended the right to a Federal vote to Australian women over the age of 21, the legislation pointedly excluded men and women of non-European extraction: ‘No aboriginal natives of Australia, Asia, Africa, or the Islands of the Pacific except New Zealand, shall be entitled to have his name placed on an Electoral Roll unless so entitled under section forty-one of the Constitution.’ (Commonwealth Franchise Act1902, Section Four). It would take the bipartisan commitment of a succession of governments, through the 1960s and into the 1970s, before the White Australia Policy could be finally dismantled.

In 1903 Parliament passed the Judiciary Act that legislated for the establishment of a Bench for the High Court. In September of that year Barton resigned as Prime Minister and several days later was appointed judge to the High Court of Australia. Although Barton was to live a further 17 years, the arduous campaign for Federation followed by responsibilities of being Prime Minister had finally exhausted him. Another parliamentarian, the Hon. Aubrey Abbott, spoke of the burden of responsibility that Barton laboured under for so many years:

I think that sometimes the public don’t realise the strain on a Prime Minister is, it’s terrific: a Premier also but a Prime Minster of Australia—take Barton, he had to start off from scratch, he had to form his own precedents, he had to … T.R. Bavin who was a premier of NSW, was his secretary, and one of Bavin’s jobs was writing the letters and trotting off to the post office with them, there was no staff. Bobby Garran, the Solicitor-General, was his one office boy. They were all starting off on new things. Barton, after two and a half years, collapsed, he couldn’t take that, he’d worn himself out on Federation.  (The Hon. Aubrey Abbott, interviewed by Mel Pratt, 1971, Oral History)


The High Court

Although the High Court had been established under the Constitution, the appointment of the first Bench could not take place until the passing of the Judiciary Act two years later. In 1903 the three High Court Judges, Edmund Barton, Richard O’Connor and Chief Justice Samuel Griffith were sworn in. In the early days of the High Court of Australia, the judges were in the curious position of interpreting the Constitution that all three had helped to write. This unique situation would persist until 1906 when the High Court bench was increased to five with the appointments of Henry Bournes Higgins and Sir Isaac Isaacs.

At first it had been wrongly assumed by its opponents that the High Court would in effect operate as a tribunal with no authoritative legal status. However, from the beginning, the Bench was determined to impress its authority upon the State Supreme courts through defining the role of the High Court as both a higher court of appeal and as the interpreter of the Australian Constitution.

The position of the first High Court Bench, however, was far from being a simple mouthpiece for the Federal Government. The first judgments of the High Court defined both the limitations and the authority of the Commonwealth and the States. In the case of D’Emden Versus Peddler the Judges applied the doctrine of Implied Immunities of Instrumentalities when they ruled that the Tasmanian Government could not impose Stamp Duty on Commonwealth employees. The ruling was based on a precedent in the United States Supreme Court. In effect the ruling spelled out the Judges’ belief in mutual non-interference between the State and the Commonwealth authorities.

Barton spelled out his view of the relationship between State and Commonwealth governments as he had conceived of it while writing the Constitution in an unpublished article The Godfathers of Federation written in 1907:

It was essential therefore that both the Commonwealth and the States have the fullest freedom of action, the one in the sphere assigned to it, and the others in their pre-existing spheres save so far as subtractions were made from them to for the establishment of the federal sphere. No federal leader thought of any such nonsense as a ‘dual system of government’ to use the phrase of one of the critics. The two systems of government, Commonwealth and State, were each to operate in a sphere which negatived the idea of duality. But in each sphere responsible government was to prevail. This was, and is, the desire of the people.

Although the original three Judges and authors of the Australian Constitution were determined to maintain a balancing act between Federal and State authorities, the appointments of the less conservative judges, Isaac Isaacs, and Henry Higgins, increasingly altered this balance in favour of Federal powers.

O’Connor’s death in 1912 marked the gradual end of an era. In 1919 Griffith retired. Although he was approaching 70, Barton was nonetheless greatly disappointed that he in turn was not honoured with the position of Chief Justice. Within a year he had died.


TIME LINE

1849 Edmund Barton born in Glebe, Sydney

1857–1859 Attended Fort Street Model School

1857–1864 Attended Sydney Grammar School

1868 Graduates with a Bachelor of Arts (Classics) University of Sydney

1870 Receives the degree of Masters of Art from the University of Sydney

1871 Goes to the Bar in Sydney

1879 Wins Sydney University Seat in Legislative Assembly of NSW

1882 Represents East Sydney in the Legislative Assembly

1883 Becomes Speaker of the Legislative Assembly

1887 Resigns as Speaker and is nominated for the Upper House

1891 Delegate for NSW at the Federal Convention in Sydney. Becomes a member of the drafting committees on the Federation Bill. Resigns from the Upper House in June and contests and wins East Sydney in the Lower House. In October he takes over the leadership of the Federal Movement in NSW. Appointed Attorney General in October and retains right to private practice.

1893 In July the Central Federation League is formed in Sydney. In October Barton resigns from the position of Attorney General.

1893 Defeated for the seat of Randwick.

1894-1896 Works tirelessly for the Federation movement.

1897 In March is elected to the Australasian Federation Convention. In April the drafting committee produces a draft constitution.

1898 Draft Constitution Bill to be put before the British Parliament is rejected by Referendum in June. In September Barton wins the by-elections for the seats of Hastings and Macleay and is elected leader of the Opposition.

1899 Enabling Act for a second referendum on the draft Constitution is passed. On 29 June the draft Constitution Bill succeeds in the referendum.

1900 Barton leads delegates to London where the British Parliament passes the Bill. Barton is commissioned to form the first ministry on 31st of December 1900.

Western Australia votes ‘yes’ in Federation referendum.

1901 The Federal Parliament is officially opened in Melbourne and Edmund Barton is appointed first Prime Minster of the Commonwealth of Australia.

Commonwealth troops sent to the Boer war.

Franchise Act extends the right to vote to women over the age of twenty-one but excludes the Indigenous peoples.

King Edward VII succeeds the throne after the death of Queen Victoria.

Pacific Island Labourers Act passed.

Immigration Restriction Act passed.

1902 Created Knight Grand Cross of the Order of St Michael and St George (GCMG)

1903 Resigns office as Prime Minster and is appointed judge to the High Court of Australia.

Judiciary Act passed.

1904 Conciliation and Arbitration Acts passed.

1914 Australia joins Britain in declaring war on Germany.

1918 The armistice is signed ending World War I.

1920 Dies suddenly of heart failure in the Blue Mountains.