27 AUGUST 1999











What should I talk about on the eve of the 21st century? What could I say to a group of people who are proud of their pioneer ancestry? It seemed to me that one topic above all others might be apposite and that was the people who, one hundred years or so ago, did so much to shape what we are today. It would be impossible to touch upon all of their fields of achievement so I have decided to say something on a few apparently diverse but in fact not entirely unrelated subjects, the architects of the Federation, their interests and the cultural milieu in which they lived.


I say nothing about the desirability or otherwise of a republic. That will be a matter between the ballot box and me at the time of the referendum. However, there is much I would say in defence of our constitution and those who wrote it. Could I ask you to reflect upon how well it has served us in the hundred years of its existence? Nothing places more strain upon a written constitution than hard and dangerous times, and change, especially rapid change. Over the last one hundred years Australia has fought in two major world wars and three other significant and costly engagements, in Korea during the Korean war, in Malaya during the insurgency and in Vietnam. International and interstate air travel have become commonplace. Images of everything from a performance at the Opera House in Vienna to a flood in Central China are beamed to satellites in the sky for instant replay on television sets in our living rooms. We are linked to the world wide web, and daily, astonishing electronic and technological advances are made. What is absolutely remarkable is that the written constitution that we have has proved flexible enough to accommodate these changes and to enable the best to be exploited and much of the inferior to be avoided.


Many of those who criticise our constitution fail to understand that it is the envy of many other countries. It is a document that picks up so much of the best of the Westminster experience and the United States' written constitution. Who were the people who were responsible for it? How was it, that living in Australia, weeks and weeks away from the great population centres in the northern Hemisphere, that these people could know so much about what was going on there and were able to avail themselves of the wisdom of those distant places.


Numerous names come to mind. Let me mention first Alfred Deakin. He was the second Prime Minister of Australia. At the time of federation he was only 44 years of age. He was a native born Australian and right from the beginning of the discussion about the possibility of an Australian nation he was an avowed supporter of it. It may not be generally known that he was also keenly interested in the arts. Indeed he aspired to be both an actor and a playwright. As a young man he wrote high-minded, moralistic dramas, one of which was an historical piece in poetic form, Quentin Masseys. Only one of his works survives and even of it there are few remaining copies. The author was disappointed that no one would produce the play with himself playing the lead as the main character and in consequence he burned all of the copies that he could find.


His contribution to Australia as a politician, as a founding father and a wise and moderate Prime Minister was far greater than it could ever have been as a dramatist. However, throughout his life until his death in 1919 he maintained his interest in literature. He wrote of himself "my heart is always in the highlands of literature".


Notwithstanding that he was a true-blue Australian, indeed perhaps aggressively so, it is claimed by his supporters that in 1907 when he attended the imperial conference in London he was offered leadership of the English Unionist political party, an offer which he declined.


It is significant that federation began to be seriously discussed throughout the 1880s and into 1890. I think that it is right to say that it is during the 1880s that the idea of Australian nationhood in lieu of a scattering of colonies began to take root. The nationalistic movement was not however confined to politics. This was a period of great cultural originality.


Julian Ashton became president of the Art Society of New South Wales in 1887. He was a vigorous campaigner for Australian art, and by that he meant Australian, and not colonial art. Another important politician of the times, Sir Henry Parkes, the Premier of New South Wales, and he became acquainted. Parkes was enlisted to the cause of Australian art. He attended the annual dinner of the Art society in 1888 and joined in the toast to "Australian art". The key year of course was 1888. It was in that year that a new society called the Victorian Artists' society which still exists today was formed, but of most importance it was the year of the "9 by 5" exhibition. The main contributors to it were Streeton, Conder, Roberts and McCubbin. Much of the work included striking impressions of the Australian countryside, of blue and gold, and lonely figures in the landscape. Pictures were five inches by none inches in dimension because that was the usual size of the cigar box lids of cedar on which they were painted. The artists of the day could afford little in the way of sized and prepared canvas and did much of their work on cigar box lids and the large solid cedar drapers' panels around which materials were customarily wrapped. These artists had a national vision as grand and as true as that of the politicians and statesman, and, apart from Conder, who returned to England and died there whilst still a relatively young man, continued to see and reveal the Australian landscape in all of its unique and sometimes stark splendour.


But perhaps the most important figure in the founding of the Australian nation was Sir Samuel Griffith, a Queenslander through and through. There are some who today would seek to take from him credit for his pre-eminent role in the composition of the Australian constitution but I think that his reputation in that regard lies beyond any fair minded criticism. Sir Samuel Griffith had been an accomplished barrister and a successful politician for many years before he became Lilley's successor as Chief Justice of this State. He brought to the deliberations on the new Constitutions at the various federation conferences a deep knowledge of the law, and of the Canadian and the United States constitutions, as well of course, as the unwritten Constitution of the United Kingdom.


Among the many prophetic statements that he made during the debates is this one when one of the other delegates challenged him to write a Constitution so framed as not to cause collision between the House of Representatives and the Senate. Frankly and undoubtedly correctly he replied:
"it is absolutely impossible every Constitutional government consists of two or more parts; each one of which can put the machine out of gear. That is the essence of Constitutional Government. The only means of avoiding collision is to have autocracy."




That is another way of saying centralised and concentrated power are absolute. Better to have a democracy as inefficient as it may be than government by junta.


Throughout the last decade of the last century Sir Samuel Griffith laboured over the form of the Constitution. It was the Constitution that he himself would come to have to construe and apply on many occasions on his appointment as the first Chief Justice of the new High Court of Australia.


We may well ask ourselves what kind of a place the 1890s Brisbane of Sir Samuel Griffith was. Some might have a notion of a backward place, far removed from European civilisation and devoid of art and sensitivity. That would be a false notion. The city was not without its many artists, actors, writers and venues for their productions. It is said that the first free citizen who was an entertainer to visit Brisbane was a man called George Croft who came in April 1847, only five years after the Moreton Bay colony was opened to free settlers. He performed at an amphitheatre he opened in South Brisbane. The performance was always the same. It consisted of balancing on his head on top of a three metre high pole surrounded by fireworks, and finishing the show with an obscene song. The first theatre company to come to Brisbane performed here in 1856. A burning topic at that time debated at the School of Arts was "Has the legitimate stage a moral or immoral tendency?".


Probably the first play by a Queensland playwright to be performed in the State was "The Belle of Brisbane", or as it was sometimes called, "The Lady of Queensland". It was written by a local resident, Myers David Isaacs and staged in a new theatre in Elizabeth Street which had been built by an entrepreneur who combined the occupations of musician, dance teacher and publican. In the following years an English travelling opera company performed 15 operas. There were in fact just as many, if not more, venues for the performance of live theatre in the second half of the nineteenth century as there are in Brisbane now. Not all of them were well adapted for the purpose. Some players in the 1870s refused to return to the Royal Victoria Theatre because of its tiny stage, the heat, the noise of the rain on the iron roof and the mosquitoes. A French visitor in 1883 wrote:
"Shakespeare's masterpieces were performed on a stage three yards square, and the ghost of the king of Denmark could be seen making his exit behind a backdrop representing Mount Versuvius in eruption. Hamlet dressed like an undertakers' mute, philosophised on the vanity of the human condition while contemplating a hollowed-out pumpkin in which an artist had cut out of the jaw a nose and two huge round eyes."




But I come back to the golden years of the 80s and the 90s. They were golden literally, because discoveries of that metal led to the boom which saw the population of Brisbane double to approximately 100,000 by 1880. People demanded entertainment. The theatre royal opened in 1881. It had a capacity of 1,350 people and only closed to be demolished in 1959.


But the grand theatre was her Imperial Majesty's opera House, better know as Her Majesty's which opened in the same year as the nine by five exhibition, 1888. It seated 2,200 people and had a stage large enough for spectacular musicals. In the same year another theatre, the 700 seat Princess was built on the South side of the river, but sadly it was in the doldrums for a period after 1893 when the flood in that year swept away the only bridge connecting the two sides of the city. It stands today, tragically grossly underequipped and in need of renovation. To go forward I would mention the Tivoli theatre which opened in 1915 by which time Sir Samuel Griffith was still Chief Justice of Australia. Downstairs it seated 2,800 people and above, there was a roof garden open to the skies which accommodated another 1,200 people.


There were a number of local authors who wrote and staged their own productions, and there was a great deal of interest in all of the arts at the time. Two brilliant women painters of Brisbane, Bessie Gibson and A A Greene left Brisbane just after the turn of the century to remain overseas for forty years.


One overwhelming concern of theatre goers, was to make sure that they could reach their homes after a performance. One attraction was the availability of good public transport. In 1881 the Theatre Royal advertised that omnibuses leave the theatre for all the suburbs immediately after the performance.


May I return again to the founding fathers. Sir Edmund Barton, another native-born Australian was our fist Prime Minister and one of the first three Justices of the High Court. He was a scholar and a classicist. He loved fishing and cricket and was said to be a fair batsman but an atrocious fieldsman. He also liked umpiring and umpired in a match between New South Wales and Lord Harris' English eleven which was interrupted by a riot.


He was Speaker in the turbulent Parliament of New South Wales in the 1880s. Somewhat unfairly rival politicians of the day nicknamed him "toby tosspot". But it was said that whatever he had imbibed did not disable him from giving clear decisions at 5 am after disorderly sittings. He was no stranger to the Athenaeum Club where he enjoyed mixing with the editor of the Bulletin, the artist whom I have already mentioned, Julian Ashton and a wide circle of cultured and interesting people. He had a reputation for charm, generosity, wit and evenness of temper. Like so many of his educated contemporaries, he loved literature and in particular Shakespeare and opera. He interested himself in the affairs of the New South Wales library and was for many years a trustee of it. He too was an avid supporter of Federation. He fervently believed in universal suffrage and wished for the replacement of the Privy Council by a new High Court as the final court of appeal for Australia. He was appointed the Chairman of the Drafting Constitutional Committees at the Adelaide federal convention in 1897.


When he became a judge he quickly gained a reputation for impartiality and a capacity to grasp the essential issues very quickly. Those who heard it said that he had a rich and beautifully modulated voice and were greatly impressed by his knowledge of British and American case law. In 1915 he was sworn in as a Privy Councillor and sat on its Judicial Committee in several cases.


It was sometimes said of him that he lacked ambition. That is a very unconvincing charge in view if his energetic devotion to the federal cause over a period of twelve years, his Prime-Ministership and his fine judicial career.


Another of the great founding fathers was Henry Higgins, not I would emphasise the Henry Higgins of Pygmalion and My Fair Lady fame. He was born in Ireland and came to Australia when he was 19 years old in 1870. His father was Methodist minister and brought him up in frugal and evangelical piety. Like so many of the other towering figures of the time he was a classicist and an accomplished lawyer. He was an immediate success when he came to the Bar of Victoria and very unselfishly helped to support his family and made many financial contributions to the education of his brothers and his sister, Anna, who was one of the first women to attend the University in Melbourne. He took up the federal cause in the 1880s and became a politician and supporter of many causes which were thought to be radical at the time. He was appointed a Justice of the High Court of Australia in 1906, one day after Sir Isaac Isaacs thus enlarging the Court to five members.


Higgins had a broad range of cultural interests. He was ahead of his time. He advocated the admission of female graduates to all of the privileges of male students of the university. He was generous in public endowments and donated 1,000 pounds in the cause of his particular love, poetry, for a poetry scholarship. He was an expert on Browning and was instrumental in the establishment of the commonwealth literary fund. Much surprise was caused to his friends and family by his bequest of 20,000 pounds to the Royal Irish Academy, an act which some thought incompatible with his intense nationalism.


It is difficult to think of anyone today in public life with the accomplishments of the people whom I have mentioned. Their achievements are all the more remarkable when account is taken of the primitive state of communications at the time. The sheer physical effort of writing by hand as contrasted with type writing or as we would now say, "word processing". How did they ever find the time? From where did the energy come. Sir Edmund Barton was accused of laziness. Imagine what he would have done if he had been energetic. Sir Samuel Griffith's judgments were models of erudition and clarity. Yet as quite an old man he still found time to translate from the Italian, and in 1912 published an English version of Dante's Divine Comedy.


But it ought not to be imagined that these great people were exempt from criticism. Not only the Parliaments of the day were turbulent. Politics were just as much a "rough house" then if not more so than today, and newspapers were partisan and polemical. And these people who were politicians and jurists were just as much criticised in their judicial roles as in their political ones.


I cannot pretend to any enjoyment of the media attacks upon the judiciary in this country but today on the other hand neither my colleagues nor I can afford to be too sensitive about it. I suppose we would join with Noel Coward in saying:
"We love criticism so long as it's unqualified praise"




But that's not the way that things are. Judges are not allowed the luxury of a retort such as the one which was made by the great Welsh poet, Brendan Beehan:
"Critics are like eunuchs in a harem. They're there every night, they see it done every night, they see how it should be done every night abut they can't do it themselves."




Nor can we say of critics, as Eugene O'Neil did, that he loved every bone in their heads or as John Osborne put it "asking a working writer what he feels about critics is like asking a lamp-post what he feels about dogs".


Judges have certainly had some harsh things said about them, but nothing quite so harsh as was said about he American politician and President, Calvin Coolidge, that he was so silent that he was always worth listening to.


No, Judges cannot afford to be sensitive.


Public life is a little like the theatre with which I have had some acquaintance.


I've never read any description of a judge of the kind used in respect of the actor, Dennis Quilley, in a musical version of "Blithe Spirit" by Noel Coward. Bernard Levin said this:
"Denis Quilley played the role with all the charm and animation of the leg of a billiard table."




When Michael Redgrave played the lead in "Hobson's Choice" the poison pen critic, Kenneth Tynan said that although some critics had seen overtones of Lear in his portrayal, he thought a somewhat bad tempered Father Christmas would have been nearer the mark.


When Terrence Stamp played Dracula, The Times' dramatic critic said that he had nothing to offer except a noble profile, his entrances were insignificant, his voice without menace or mystery, and his physical tricks consisted largely of flapping his cloak like a bat failing to take off.


One of the most damming criticisms was of a play by J.B. Priestley called "When We Are Married". One critic said:
"It would make an ideal treat as a night out for your despicable in-laws. Send them a couple of tickets and then meet them later at the Theatre restaurant for a blazing row."




Criticisms therefore that have been made of the courts seem by comparison to be rather mild stuff.


I have travelled rather a long way from the topic of this speech. I hope you will forgive me my discursiveness. I also hope that if our constitution is to be re-drawn we can find people of the intellects and wisdom of those who drew our current one willing to participate, and I can only fervently hope that the document we get is more than half as good as the one that those far-sighted constitutional pioneers gave us almost precisely one hundred years ago.


This country has every reason to be proud of all of our pioneers, not just those who laboured on the land and in factories and other places but those who were pioneers in the arts and constitutional stature of this country.




In preparing this paper, reference was made to the following sources:


Jarman, The Guinness Book of Poisonous Quotes (1991).


Joyce, Samuel Walker Griffith (1984).


La Nauze and Nurser, Walter Murdoch and Alfred Deakin on Books and Men, Letters and Comments 1900-1918, (1974).


Nairn and Serle, Australian Dictionary Of Biography, Vols 7, 9 and 12.


Reynolds, Edmund Barton (1948).


Rigg, No Turn Unstoned: The Worst Ever Theatrical Reviews (1983).