Edmund Barton

Barton spent his early years in Glebe, but in 1851 the family moved into the inner city, living on Cumberland Street in The Rocks.[1] He had a relatively comfortable upbringing, although his father faced financial difficulties on a number of occasions. To support the family during those periods, his mother ran a boarding school for girls.[7] His parents were both highly literate, and his mother in particular "provided much of the direction and encouragement for Edmund's impressive academic achievement".[8] Barton began his formal education at what is now the Fort Street Public School. He later attended Sydney Grammar School, possibly as one of the first students after the school's opening in 1857.[3] One of his close friends in his youth was Richard O'Connor, who would eventually join him on the High Court. Barton was the dux and school captain at Sydney Grammar in 1863 and 1864. He matriculated to the University of Sydney in 1865, aged 16, and was awarded a special prize by the university senate.[9]

Edmund Barton aged 17

At university, Barton specialised in classics but also studied English literature, mathematics, physics, and French.[9] He became fluent in Ancient Greek and Latin, and retained a command of both later in life.[lower-alpha 2] A new professor, Charles Badham, arrived in 1867 and was a "profound influence". Barton won scholarships in his second and third years. He graduated Bachelor of Arts in 1868 with first-class honours, and was awarded the equivalent of the University Medal as well as a prize of £20. He proceeded to Master of Arts by examination in 1870.[12]

Barton was a member of the Sydney University Cricket Club and a founding member of the Sydney Rowing Club.[13] On a cricketing trip to Newcastle in 1870 he met Jane Mason Ross, whom he married in 1877.[14][15]

In 1879, Barton umpired a cricket match at Sydney Cricket Ground between New South Wales and an English touring side captained by Lord Harris. After a controversial decision by Barton's colleague George Coulthard against the home side, the crowd spilled onto the pitch and assaulted some of the English players, leading to international cricket's first riot. The publicity that attended the young Barton's presence of mind in defusing that situation reputedly helped him take his first step towards becoming Australia's first prime minister, winning a state lower house seat later that year.[16]

Barton was an early supporter of federation, which became a serious political agenda after Henry Parkes' Tenterfield Oration, and was a delegate to the March 1891 National Australasian Convention. At the convention he made clear his support for the principle that "trade and intercourse ... shall be absolutely free" in a federal Australia. He also advocated that not just the lower house but also the upper house should be representative and that appeals to the Privy Council should be abolished. He also took part in producing a draft constitution, which was substantially similar to the Australian Constitution enacted in 1900.[15]

Nevertheless, the protectionists were lukewarm supporters of federation and in June 1891, Barton resigned from the Council and stood for election to East Sydney and announced that "so long as Protection meant a Ministry of enemies to Federation, they would get no vote from him". He topped the poll and subsequently voted with Parkes, but refused to take a position in his minority government. After the Labor Party withdrew support and the government fell in October 1891, Parkes persuaded him to take over the leadership of the Federal movement in New South Wales.[15]

Dibbs formed a Protectionist government and Barton agreed to be Attorney-General with the right of carry out private practice as a lawyer. His agreement was based on Dibbs agreeing to support federal resolutions in the coming parliamentary session. His attempt to draft the federal resolutions was delayed by a period as acting Premier, when he had to deal with the 1892 Broken Hill miners' strike, and his carriage of a complex electoral reform bill. He introduced the federal resolutions into the House on 22 November 1892 but was unable to get them considered in committee.[15]

Meanwhile, he began a campaign to spread support for federation to the people with meetings in Corowa and Albury in December 1892. Although he finally managed to get the federal resolutions considered in committee in October 1893, he then could not get them listed for debate by the House. In December, he and Richard O'Connor, the Minister for Justice, were questioned about their agreement to act as private lawyers against the government in Proudfoot v. the Railway Commissioners. While Barton resigned the brief, he lost a motion on the right of ministers to act in their professional capacity as lawyers in actions against the government, and immediately resigned as Attorney-General.[15]

In July 1894, Barton stood for re-election for Randwick (the multi-member electorate of East Sydney had been abolished) and lost. He did not stand for election in the 1895 elections because he needed to support his large family during a period when parliamentarians were not paid. However, he continued to campaign for federation and during the period between January 1893 to February 1897, Barton addressed nearly 300 meetings in New South Wales,[20] including in the Sydney suburb of Ashfield where he declared that "For the first time in history, we have a nation for a continent and a continent for a nation". By March 1897, he was considered "the acknowledged leader of the federal movement in all Australia".[15]

Photo in 1898 of the future 1st Prime Minister of Australia Edmund Barton aged 49 and 2nd Prime Minister of Australia Alfred Deakin

In 1897, Barton topped the poll of the delegates elected from New South Wales to the Constitutional Convention, which developed a constitution for the proposed federation. Although Sir Samuel Griffith wrote most of the text of the Constitution, Barton was the political leader who carried it through the Convention.[15][18]

In May 1897, Barton was appointed for the second time to the Legislative Council on Reid's recommendations to take charge of the federation bill in the Upper House. This gave Reid's Attorney-General, Jack Want, a free hand to oppose the bill. In September 1897, the convention met in Sydney to consider 286 proposed amendments from the colonies. It finalised its draft constitution in March 1898 and Barton went back to New South Wales to lead the campaign for a yes vote in the June referendum. Although it gained majority support, it achieved only 71,595; 80,000 was the minimum number for it to pass.[15]

In July 1898 Barton resigned from the Upper House to stand against Reid for election to the Legislative Assembly, but narrowly lost. In September, he won a by-election for Hastings and Macleay and was immediately elected leader of the opposition, which consisted of a mixture of pro-federation and anti-federation protectionists. In January 1899 Reid gained significant concessions from the other states and he joined Barton in campaigning for the second referendum in June 1899, with Barton campaigning all over the state. It passed 107,420 votes to 82,741.[15][19]

In August 1899 when it became clear that the Labour Party could be manoeuvred into bringing down the Reid Government, Barton resigned as leader of the opposition, as he was unacceptable to Labour, and William Lyne took his place. He refused an offer to become Attorney-General again. He resigned from Parliament in February 1900 so that he could travel to London with Alfred Deakin and Charles Kingston to explain the federation bill to the British Government. Around the same time on 15 January 1900 Barton published a 28-page United Australia magazine to disseminate an informative narrative for the propositions of a future Federal Government that he hoped to lead.[21] The British Government was adamant in its opposition to the abolition of appeals to the Privy Council as incorporated in the draft constitution; eventually, Barton agreed that constitutional (inter se) matters would be finalised in the High Court, but other matters could be appealed to the Privy Council. Edmund served as a Justice of the High Court for 16 years.[15]

The Federation Pavilion at Centennial Park, Sydney, during the swearing-in ceremony on 1 January 1901.

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External video Footage from Inauguration of the Commonwealth

Barton was appointed prime minister on 1 January 1901, the day on which the new federal constitution came into effect. He and various other dignitaries were driven through the streets of Sydney in a procession watched by thousands of onlookers, beginning in The Domain and ending at Centennial Park. A swearing-in ceremony for the new government was held at the purpose-built Federation Pavilion.[22] The main focus was on Lord Hopetoun, Australia's first governor-general, who swore three separate oaths and read a message from Queen Victoria. Barton and his ministry only took oaths of allegiance, and were not formally sworn in to the Federal Executive Council until later in the afternoon.[23] The events of the day were captured on film and distributed under the title Inauguration of the Commonwealth, although the visibility of the leading participants is poor.[24] The film has been described as Australia's first feature-length documentary.[25]

Barton had only been commissioned to form a government one week before he became prime minister, due to what became known as the "Hopetoun Blunder". The new governor-general Lord Hopetoun arrived in Australia on 15 December 1900.[26] He was tasked by the Colonial Office with selecting someone to form a caretaker government prior to the first federal election; this individual would be Australia's first prime minister.[27] It was widely assumed that Barton would be offered the position, and he had begun making preparations for the role, including a draft platform for the first federal elections.[28] On 19 December, however, Hopetoun commissioned William Lyne to form a government. His reasons for doing so have been debated, but his decision was widely regarded as a mistake.[29][30] Lyne, the premier of New South Wales, had actively campaigned against federation, and the leading politicians in each of the other colonies refused to serve under him.[31] On 24 December, he informed Hopetoun that he was unable to form a government and advised him to send for Barton.[32] As a result, the composition of Australia's first cabinet was not formally announced until 30 December, two days before it was sworn in.[33]

Members of the first Barton Ministry, 1 January 1901

Barton assembled a ministry that was described variously as a "cabinet of kings", "orchestra of conductors", and "army of generals".[34] It comprised four incumbent colonial premiers (including Lyne), two former premiers, and Barton's key allies Alfred Deakin and Richard O'Connor. Deakin was ranked second in cabinet after Barton and O'Connor would become the inaugural Leader of the Government in the Senate. Only one change was made prior to the ministry prior to the election, necessitated by the death of James Dickson on 10 January.[35] Barton took on the external affairs portfolio himself and conducted official business through the Department of External Affairs, as there was no prime minister's department until 1911.[36]

The first goal for Barton and his ministry was to retain office at the first federal elections, which were held in late March 1901. His old rival George Reid became the chief opponent of the government during the campaign and the de facto opposition leader. There were no national political parties in 1901, but most candidates self-declared as either protectionists or free-traders, following the primary divide in colonial politics. Reid, a free trader, made the tariff issue his primary focus, but its significance was diminished by the fact that the new federal government would have to depend on tariffs for its revenue.[37] Barton instead delivered "an electoral masterstroke"[15] by making White Australia the centrepiece of the government's campaign, thereby attracting many working-class voters concerned about "coloured labour". Supporters of the government won 32 out of the 75 seats in the House of Representatives, with their grouping calling itself the Protectionist Party (or Liberal Protectionists).[38] Barton himself was elected unopposed in the Division of Hunter, having previously represented the area in the New South Wales parliament.[39] The government's continuation was secured by the support of the newly formed Australian Labor Party (ALP), which had 17 MPs. Reid and his Free Trade Party formed the official opposition with 26 MPs.[38] The situation in the Senate was similarly complicated, with the government's position even less secure. However, party discipline was virtually non-existent and Barton was widely seen as having won a mandate to govern.[40]

Barton outlined his platform for the first federal election at a speech on 17 January 1901, delivered at the West Maitland Town Hall within his prospective electorate. His plans included the establishment of the federal capital, the High Court and the Inter-State Commission, and a "moderately protectionist tariff" in order to raise the revenue to introduce old-age pensions and a uniform postal system. He also promised to introduce universal suffrage for federal elections, build the Trans-Australian Railway, legislate to allow federal intervention in industrial disputes, and ban immigration from Asia and the Pacific Islands.[41]

In April 1901, Barton announced that the government would sponsor a competition to design a new national flag for Australia. The winning design was the basis for the current Australian national flag, although Barton personally favoured the existing Australian Federation Flag that had been popular in New South Wales for many years. As it was primarily intended to be used in shipping, the design had to be submitted to the British Admiralty for approval and was not officially adopted until 1903.[42]

An early piece of legislation of the Barton government was the Immigration Restriction Act 1901, which put the White Australia policy into law. The Labour Party required legislation to limit immigration from Asia as part of its agreement to support the government, but Barton had promised the introduction of the White Australia Policy in his election campaign. Barton stated, "The doctrine of the equality of man was never intended to apply to the equality of the Englishman and the Chinaman". One notable reform was the introduction of women's suffrage for federal elections in 1902.[43]

Barton was a moderate conservative, and advanced liberals in his party disliked his relaxed attitude to political life. A large, handsome, jovial man, he was fond of long dinners and good wine and was given the nickname "Toby Tosspot" by The Bulletin.[44]

Caricature in Vanity Fair, October 1902

For much of 1902, Barton was in England for the coronation of King Edward VII, which was postponed from June to August, delaying Barton's return. Accompanying him on this trip was Sir John Forrest, Minister of Defence, and the trip was also used to negotiate the replacement of the naval agreements between the Australian colonies and the United Kingdom (under which Australia funded Royal Navy protection from foreign naval threats) by an agreement between the Commonwealth and the United Kingdom at the 1902 Colonial Conference.[15] Deakin disliked this arrangement and discontinued it, moving for a substantial expansion of Australia's own navy in 1908.[45] On their way home from the United Kingdom, Barton and Forrest visited Canada, including Toronto, Ottawa (where they were guests of the Governor-General), and the Pacific Coast.[46][47]

On 24 September 1903, Barton resigned as prime minister to become one of the founding justices of the High Court of Australia. Speculation about his political future had been rife for several months, particularly after the Judiciary Act 1903 was passed in August. There were several factors at play in his decision to retire from politics. Some within his own party thought that he lacked the energy and commitment to continue as the leader of the government.[48] Barton had also suffered from bouts of ill health, including a fainting spell in his office earlier in the year. He was advised by his doctor to quit active politics. Finally, he had a history of financial difficulties and appreciated the security that a lifetime appointment would bring.[49] The appointment of the new judges was made by the governor-general on the advice of cabinet, many of whom had ambitions of their own and encouraged Barton to accept the post.[48] His appointment was largely uncontroversial, given his role in drafting the constitution, experience as a barrister, and acceptance of a puisne judgeship rather than the position of chief justice.[50]

The Deakin Government added two extra judges to the High Court in 1906, appointing former attorneys-general H. B. Higgins and Isaac Isaacs. Their elevation brought an adversarial aspect to the court for the first time, as the new judges were political radicals and had not been involved in drafting the constitution.[54] Barton and Griffith formed a conservative bloc, almost always joined by O'Connor.[55] Barton did not dissent from Griffith in the first eight years of the court's existence. In the 44 cases heard by the court from 1904 to 1905 he delivered only 12 separate judgments, choosing to join Griffith's opinion in every other case. Some writers have taken this as indicative of laziness or reluctance to lead the court.[56] However, others have suggested that his lack of separate judgments was not representative of his work ethic and reflected more a general dislike of concurring opinions as liable to complicate the interpretation of rulings.[57]

Barton served as acting chief justice for nine months in 1913, while Griffith was overseas. The same year saw a major shift in the composition of the court, with two new seats created and a third judge appointed to fill the vacancy caused by O'Connor's death. One of the new judges was Barton's friend Albert Piddington, whose appointment proved controversial due to his political views. He resigned from the court after a month, despite Barton's attempts to convince him to stay.[58] The three vacancies were eventually filled by Frank Gavan Duffy, Charles Powers and George Rich, none of whom had been involved in the drafting of the constitution. As a result, Barton and Griffith increasingly found themselves in a minority on constitutional matters, seeking to preserve the intentions of the framers rather than allow the constitution to evolve. The new judges were also less familiar with the North American federal precedents that the original judges had often relied upon.[59] The influx of new voices contributed to Barton's movement away from Griffith, as he showed "a return of energy and initiative [...] greater independence and at times disagreement" than in his earliest years on the court.[58]

Barton later in life (Sarony Studios)

In D'Emden v Pedder (1904), the High Court formulated a doctrine of implied immunity of instrumentalities, modelled closely on the American concept of intergovernmental immunity which Barton and the other authors of the constitution had closely studied. The court followed this precedent in Deakin v Webb (1904), which was subsequently overturned by the Judicial Committee of the Privy Council in Webb v Outtrim (1906). Barton was angered by the Privy Council's intervention, having always believed the High Court should be the final court of appeal. In personal correspondence he described the 83-year-old presiding judge Lord Halsbury as an "old pig" who did not understand the needs of a federation.[60]

Sitting as the Court of Disputed Returns, Barton was the sole judge in Blundell v Vardon (1907), where he ruled that Joseph Vardon's election to the Senate was void due to electoral irregularities.[57] He joined with Griffith and O'Connor in the majority opinion in R v Barger (1908), "the High Court's most decisive intervention to date in thwarting social reforms passed by the Commonwealth parliament".[61] In a series of cases around the same time, the trio also restricted the powers of the Commonwealth Court of Conciliation and Arbitration.[62] Barton and Griffith split notably in New South Wales v Commonwealth (1915), with the court voting 4–2 to strip the Inter-State Commission of any judicial power, much to Barton's dismay. Only Gavan Duffy sided with his argument that parliament should determine the commission's powers rather than the court. The decision was "a rebuff to Barton's authority as an interpreter of the Constitution and his special authority as one of its draftsman".[63]

During World War I, Barton joined the majority in Farey v Burvett (1915), which saw the court adopt a broad view of the federal government's defence power.[64] In Duncan v Queensland (1916), he and Isaacs were the only dissenters from the court's interpretation of section 92 of the constitution. With Griffith authoring the majority opinion, the court held that state governments could circumvent the constitution's free-trade provisions simply by banning the movement of goods across state boundaries. Barton expressed a "heavy sorrow" at the court's decision and Isaacs was highly critical. In 1920, after Barton's death, Isaacs led the court in reversing Duncan, in what became known as the Engineers case.[65]

Along with Griffith, Barton was several times consulted by Governors-General of Australia on the exercise of the reserve powers.[66] In 1919, although ill, he was extremely disappointed to be passed over for the position of Chief Justice on the retirement of Griffith.[67]