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Sir Edmund " Toby" Barton (18 January 18497 January 1920) was an Australian politician, barrister and jurist who served as the first prime minister of Australia from 1901 to 1903. He held office as the leader of the Protectionist Party, before resigning in 1903 to become a founding justice of the High Court of Australia, on which he served until his death in 1920. Barton is regarded as a founding father of Australia, a principal leader in the federation of the Australian colonies and a drafter of the Commonwealth Constitution.
Barton was an early supporter of the federation of the Australian colonies, the goal of which he summarised as "a nation for a continent, and a continent for a nation". After the retirement of Henry Parkes he came to be seen as the leader of the federation movement in New South Wales. He was a delegate to the constitutional conventions, playing a key role in the drafting of a national constitution, and was one of the lead campaigners for federation in the subsequent referendums. In late 1900, despite the initial "Hopetoun Blunder", Barton was commissioned to form a caretaker government as Australia's first prime minister. His term began on 1 January 1901, the date on which federation occurred.
At the first federal election in March 1901, Barton and the Protectionists won the most seats, but were well short of a majority. He was able to remain as prime minister by forming an alliance with the fledgling Australian Labor Party (ALP), which held the balance of power. The Barton government established a number of new national institutions, including the Australian Defence Force and the Commonwealth Public Service. It introduced nation-wide women's suffrage, and laid the foundations of the White Australia policy with the Immigration Restriction Act 1901.
Barton left politics in 1903 to become one of the three founding members of the High Court, which his government had created. He was succeeded as prime minister by Alfred Deakin. On the court, Barton was able to shape the judicial interpretation of the constitution he had helped write.
At university, Barton specialised in classics but also studied English literature, mathematics, physics, and French. He became fluent in Ancient Greek and Latin, and retained a command of both later in life. 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.
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. In the subsequent public controversy, George Reid censured Coulthard and absolved the crowd, while Barton defended Coulthard and did not spare the crowd.William Coleman, Their Fiery Cross of Union. A Retelling of the Creation of the Australian Federation, 1889-1914, Connor Court, QLD, 2021, pp 92-93. 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.
In 1882, he became Speaker of the New South Wales Legislative Assembly. He was aged only 33, and was the youngest person to have been chosen presiding officer of any Australian legislative chamber. In 1884 he was elected President of the University of Sydney Union. In 1887, he was appointed to the New South Wales Legislative Council at the instigation of Sir Henry Parkes. In January 1889, he agreed to being appointed Attorney General of New South Wales in George Dibbs's Protectionist government, despite his previous support for free trade. This government lasted only until March, when Parkes formed a government again.
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.
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.
In July 1894, Barton stood for re-election for Randwick, since the electorate of East Sydney had been abolished, and lost. He did not stand for election in the 1895 election, very possibly because of financial difficulties. 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, 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".
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.
In July 1898 Barton resigned from the Upper House to challenge Reid for the seat of Sydney-King in the 1898 general election, 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.
In August 1899 when it became clear that the Labor 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 allegedly refused an offer to become Attorney-General again. Barton's Convention colleague, J.T. Walker, wrote at the time, "Barton is not well off financially, and some of his friends (he has many) are trying to help him. They would not be so ready to do so were he to join Lyne".William Coleman, Their Fiery Cross of Union. A Retelling of the Creation of the Australian Federation, 1889-1914, Connor Court, QLD, 2021, p. 111. 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 Government of the United Kingdom. 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.Julian Fitzgerald On Message: Political Communications of Australian Prime Ministers 1901 – 2014 Clareville Press 2014 p 23 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 of Australia, but other matters could be appealed to the Privy Council. Edmund was a Justice of the High Court for 16 years.
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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. 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. 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. The film has been described as Australia's first feature-length documentary.
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. 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. 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. 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. 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. On 24 December, he informed Hopetoun that he was unable to form a government and advised him to send for Barton. As a result, the composition of Australia's first cabinet was not formally announced until 30 December, two days before it was sworn in.
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. Barton instead delivered "an electoral masterstroke" 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 Australian House of Representatives, with their grouping calling itself the Protectionist Party (or Liberal Protectionists). Barton himself was elected unopposed in the Division of Hunter, having previously represented the area in the New South Wales parliament. 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. 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.
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.
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.
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.
Deakin succeeded Barton as prime minister, but the government performed poorly at the December 1903 election. The hung parliament allowed Chris Watson and the ALP a chance to form government in April 1904, but it was short-lived and George Reid succeeded Watson as prime minister in August. Later in the year, the court came into conflict with Josiah Symon, Reid's appointee as attorney-general. Symon objected to the judges hearing cases in each of the state capitals, believing the court should sit only in Melbourne and Sydney, and also thought their travelling expenses were excessive. Relations between the government and the court became so strained that the judges contemplated refusing to hear cases, and Barton seriously considered resigning. The situation was only resolved in June 1905 when Deakin returned as prime minister.
Barton was 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. 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. 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.
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. 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". In a series of cases around the same time, the trio also restricted the powers of the Commonwealth Court of Conciliation and Arbitration. 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".
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. 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.
Barton's nephews via his older sister Harriet included Victorian federal MP Arthur Robinson and businessmen Lionel Robinson and William Sydney Robinson.
In 1905, the Japanese government conferred the Grand Cordon, Order of the Rising Sun, and Barton was granted permission to retain and wear the insignia. The honour was presented in acknowledgement of his personal role in resolving a conflict concerning the Commonwealth's Pacific Island Labourers Act and the Queensland protocol to the Anglo-Japanese Treaty.
In 1951 and again in 1969, Barton was honoured on postage stamps bearing his portrait issued by Australia Post.
The Barton Highway near Canberra, Australia was named after Barton. The Division of Barton in New South Wales is named after him, as is Barton, Australian Capital Territory, a suburb of Canberra close to Capital Hill which is the location of many government departments and national institutions, and the headquarters of Australia's main political parties. The Edmund Barton Building is a government office building in that suburb. The Barton College of Deakin University is also named after Barton.
Second Attorney-Generalship
Dibbs formed a Protectionist government in New South Wales, and Barton agreed to return to the office of Attorney General, with the right of carrying 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 of New South Wales, during which he had to deal with the 1892 Broken Hill miners' strike and the 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.
Australian Federal Convention and referendum
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 Samuel Griffith wrote most of the text of the Constitution, Barton was the political leader who carried it through the Convention.
Prime minister
Appointment
at Centennial Park, Sydney, during the swearing-in ceremony on 1 January 1901
Caretaker ministry and first election
Barton assembled Barton ministry that was described variously as a "cabinet of kings", "orchestra of conductors", and "army of generals". 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 to the ministry prior to the election, necessitated by the death of James Dickson on 10 January. 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.
Domestic policy
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.
External affairs
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 for 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. Deakin disliked this arrangement and discontinued it, moving for a substantial expansion of Australia's own navy in 1908. 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.
Retirement
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. 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. 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. His appointment was largely uncontroversial, given his role in drafting the constitution, experience as a barrister, and acceptance of a rather than the position of chief justice.
High Court Justice
Barton was sworn in to the High Court on 7 October 1903, along with his close friends Samuel Griffith and Richard Edward O'Connor; Griffith became the inaugural Chief Justice of Australia. The new justices had worked together in drafting the constitution and habitually lunched together. As a result of their closeness and the small number of cases heard, there were few dissents in the early years of the court.
Court dynamics
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. Barton and Griffith formed a conservative bloc, almost always joined by O'Connor. 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. 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.
Notable cases
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.
Other activities and final years
Along with Griffith, Barton was several times consulted by Governors-General of Australia on the exercise of the .Donald Markwell, "Griffith, Barton and the early governor-generals: aspects of Australia's constitutional development", Public Law Review, 1999. In 1919, although ill, he was extremely disappointed to be passed over for the position of Chief Justice on the retirement of Griffith.Markwell, "Griffith, Barton and the early governor-generals", Public Law Review, 1999.
Death and family
Barton died on 7 January 1920 from heart failure at the Hydro Majestic Hotel, Medlow Bath, New South Wales. He was interred in South Head General Cemetery in the Sydney suburb of Vaucluse (see Waverley Cemetery). He was survived by his Jane Barton and six children:
Honours
Barton refused knighthoods in 1887, 1891 and 1899, but agreed to be appointed a Knight Grand Cross of the Order of St Michael and St George (GCMG) in the 1902 Coronation Honours list published on 26 June 1902, and was invested by King Edward VII at Buckingham Palace on 8 August 1902. (He was the only prime minister to be knighted during his term of office until Robert Menzies in 1963; various others were knighted after leaving the office; Sir Earle Page was already a knight when he briefly became prime minister in 1939.) He received an honorary Doctor of Laws (LL.D.) from the University of Cambridge in 1900, and honorary Doctor of Civil Law from the University of Oxford and LL.D. from the University of Edinburgh while visiting the United Kingdom in the summer of 1902. He also received the Freedom of the City of Edinburgh during a visit to that city on 26 July 1902.
Notes
Further reading
External links
Categories: 1849 Births, 1920 Deaths, 19th-century Australian Lawyers, Attorneys General Of The Colony Of New South Wales, Australian Federationists, Ministers For Foreign Affairs Of Australia, Australian King's Counsel, Burials At Waverley Cemetery, Justices Of The High Court Of Australia, Members Of The Australian House Of Representatives For Hunter, Members Of The Australian House Of Representatives, Members Of The Cabinet Of Australia, Members Of The New South Wales Legislative Assembly, Members Of The New South Wales Legislative Council, Australian Members Of The Privy Council Of The United Kingdom, People Educated At Fort Street High School, People Educated At Sydney Grammar School, People From Glebe, New South Wales, Politicians From Sydney, Prime Ministers Of Australia, 20th-century Prime Ministers Of Australia, Protectionist Party Members Of The Parliament Of Australia, Grand Cordons Of The Order Of The Rising Sun, Speakers Of The New South Wales Legislative Assembly, University Of Sydney Alumni, Australian People Of English Descent, 19th-century Australian Politicians, Australian Mps 1901–1903, Australian White Nationalists, Australian Protectionists
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