Question: Question: Individual rights are an important part of American culture and some are enshrined in the United States Constitution.  How does Australian culture differ and can this explain why Australia does not have a constitutional Bill of Rights?

Australia’s Trust in Government and America’s Land of the Free
Utilitarianism, Racism and Federalism: Influences on Rights in Australia’s Constitution Compared to America

Introduction

While Australia’s founders[1] were heavily influenced by the American Constitution,[2] they avoided enshrining many rights in the Constitution. This decision was in contrast to the American Constitution and its Bill of Rights.[3]  This essay will draw on history to explain why Australians have rejected most constitutional rights protections. This essay will argue that the Australian founders, in contrast to their American counterparts, had a deep trust in institutions, a reverence for Britain and racist attitudes towards migrants, and these cultural factors influenced the founders to exclude a wide range of rights in the Constitution.  Part II will elucidate the non-cultural factors that led to the decision to omit a Bill of Rights: federalism and the legal philosophy at the time of Federation were also influential.  Part III will consider how our culture has changed since Federation, why our culture now respects individual rights to some extent, and interrogate why, despite Australians having a mechanism for constitutional change, we do not have rights protection today.  This essay will conclude that, while Australian culture now values individual rights to a greater extent than at Federation, culture is not the sole reason we do not enshrine many individual rights in our Constitution: there are also political and practical hurdles to a constitutional Bill of Rights.

I           Australian Culture at Federation

America’s historical experience of Colonial rule caused a distrust of official people which caused the Americans to believe it was necessary to impose constitutional limits through formal rights.[4]  Meanwhile, Australians did not venerate individual rights because they trusted institutions, such as courts and parliament, to protect the individual.

The Convention Debates demonstrate how this Australian attitude of trust in institutions influenced the making of the Constitution.  At the 1898 Convention, Andrew Inglis Clark proposed that the Commonwealth should not be able to ‘deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws’.[5]  This proposal was based on the American Fifth Amendment and was ultimately rejected because the founders did not place much, if any, importance on individual rights. Many of the Australian delegates saw this proposal as indicating a deficiency in the government they sought to create.[6]  Isaac Isaacs and John Cockburn demonstrated an arguably blind faith in their government.  They challenged anyone to point to a colony that had ever deprived a person of life, liberty or property without due process of the law (evidently forgetting their own colony’s treatment of Indigenous Australians).[7]  In response to a suggestion that a guarantee of due process should be included,[8] John Gordon had such trust in institutions that he incredulously responded: ‘Might you not as well say that the states should not legalise murder!’[9]  This trust in government and institutions differs from that of the Americans, who saw a Bill of Rights as vital due to their mistrust in the ruling class.

Unlike America, Australian culture at the time of Federation did not revere individual rights because of three key differences.  Firstly, the Australian founders, unlike the Americans, had not experienced oppression by their colonial government.  Secondly, the violent American and French struggles for individual rights caused Australians to perceive such rights as destabilising to social order.  Thirdly, the Australian founders trusted the system of responsible government to protect individual rights because of a respect for the British legal system, a respect which the Americans did not share.   These cultural influences caused the Australian founders to trust that governments would govern fairly without a Bill of Rights. 

A          Colonial Experience

Americans viewed their Colonial rulers with deep suspicion.  There were frequent clashes, particularly over taxes, and many Americans viewed British rule as a systematic conspiracy against their liberties.[10]  This made Americans believe that, in the words of Thomas Jefferson, ‘a Bill of Rights is what the people are entitled to against every government on Earth’[11] and view individual rights as important.  

From the Australian founders’ perspective, there had been no struggle against oppression which preceded the drafting of the Constitution (as was seen above, the colony’s treatment of Indigenous peoples was largely ignored).  The Australian founders believed that the colony, the most prosperous in the world,[12] already enjoyed ‘the most perfect freedom’.[13]  Accordingly, history ‘had not taught [Australians] the need of provisions directed to control the legislature’.[14]  Craven observes that:

‘There were no haughty imperial armies quartered around the colonies, grinding the noses of the population into the mud.  There was no need for an exciting revolution from the point of view of people such as Barton and Deakin …  If you had tried to write a Constitution in terms of ringing declarations of rights and assertions of independence, you would quite rightly have been laughed at. There simply was no need for revolutionary rhetoric, because there was no need for a revolution’.[15]

B          Social Order in Colonial Australia

After the bloody process of the American Declaration of Independence in 1776 and the French Revolution in 1789-99, ‘perceptions of constitutional protection of rights were tainted heavily by images of violence, anarchy and excessive individualism’.[16]  As contemporaneous evidence suggests, the French Revolution, begun a year after Australia’s colonial settlement,  was seen to ‘flood the world with its new kind of religion … with fighters, apostles and martyrs’.[17]  Consequently, Australian settlers downplayed individual rights ‘due to the potential threat to social stability, which the colony could ill afford’.[18]  John MacCarthur, the engineer of the Rum Rebellion of 1808, was influenced by Bentham and Locke’s tradition of ‘rightful rebellion against’ what he saw as unlawful rule.[19]  Accordingly, theories on individual rights ‘were often seen as threatening’ by the dominant class.[20]  Similarly, Thomas Paine’s thought on rights reached Australia, but maintained a ‘limited and subversive influence’.[21]  Instead, the ruling class focused on ‘collective morality’ rather than on individual liberties.[22]

Instead of the rights-based theories adopted by the Americans, utilitarianism significantly influenced early Australian principles.[23]  Utilitarians had a particularly close relationship to colonisation: James Mill and John Stuart Mill were colonial administrators and Bentham had ‘direct influence’ on the Australian settlers.[24]  Accordingly, the Australian founders eschewed rights-based theories and preferred ‘the Millsian approach, seeking the restriction of belief and action only in so far as their free expression harmed others,’ which influenced our Constitution.[25]  Utilitarianism is incompatible with the American ideal of the absolute protection of rights. The two cultures’ approach to individual freedoms is, arguably, illustrated by their respective responses to the 2020 pandemic. Australians, for the most part, willingly followed social distancing regulations as they perceived the limits on individual freedom as justified, exemplifying the utilitarian approach.  Meanwhile, America has witnessed months of anti-lockdown protests to ‘liberate’ citizens against the perceived tyranny of social distancing.[26]

C         Allegiance to Britain

Both nations’ cultural relationship with Britain influenced their reverence for individual rights and the constitutional choices made by their founders. The Americans’ reverence for individual rights was a product of their struggle against Britain.  The American catchcry ‘The Land of the Free’ furnishes a useful illustration.  This term was coined by 35-year-old lawyer Francis Scott Key, who wrote Star-Spangled Banner, the American Anthem, in 1814.[27]  Key was inspired to write the poem after witnessing bloodshed during the British bombardment of Fort McHenry and discovering the American flag still flying.  In this sense, the notion of the ‘land of the free’ can be seen as a rebellion against the British.   More generally, the American Constitution and the United States itself were formed as a pathway to freedom from British rule.  This context contributed to why American culture has such a focus on freedom and individual rights but Australia’s founders, content with their colonial forefathers, did not.

Australians’ allegiance to Britain not only meant that Australians placed less importance on individual rights, but it also influenced the mechanisms they chose to protect rights.  Cultural affection for Britain weighed heavily in favour of Australia adopting the British system of responsible government, a choice which meant that the founders saw no need to further protect individual rights:[28]  Australian founders believed in British institutions, such as constitutional conventions, the common law and the ballot box, to protect the individual against tyranny. [29]  While many Australians, including the founders,[30] were born in Australia, a cultural affection for Britain remained.  For example, Henry Parkes said that Australian-born men ‘are much the men born within London’ in a ‘shared kinship’ with Britain.[31] 

Some claim that Australia’s convict and Irish influence caused Australian culture to be ‘anti-authoritarian’,[32] which would suggest a desire to adopt stronger mechanisms to limit government power.  However, any anti-authoritarianism is unlikely to have influenced the founders, as they were the epitome of authority: many were or became Premiers, Prime Premiers and Chief Justices.[33]  Contemporary evidence also suggests that Australians are not anti-authoritarian: a survey of 50,000 Australians found that the most common response to ‘What makes you Australian?’ was ‘Respecting our institutions and laws’.[34] For these reasons it is unlikely that anti-authoritarianism influenced the Constitution.

Finally, Australia’s Constitution does not provide resounding statements of individual rights because Federation was not viewed as a cultural or ideological exercise.  In contrast to America, Australia had no need for the ‘emotional apparatus of nationalism’ when that was ‘performed by the British monarchy’. [35]  Australians envisioned that the federal government would have a mere ‘service-providing role’[36]  rather than provide ‘national sentiment and identity’.[37]  This aligned with the English and Scottish Enlightenment thought which influenced the Australian colony,[38]  which had a pragmatic emphasis that ‘embodied a philosophy of expediency’ rather than ideals.[39]  The Constitution was therefore ‘a practical framework’,[40]  which is clearly distinguished from the ideological ideals which influenced America’s founders. 

D         Racism

It is important to recognise that Inglis Clark’s rights proposal was opposed by some founders on the basis that they could ‘restrict colonial laws that limited the employment of Asian workers’.[41]  John Forrest, the Premier of Western Australia, said during debate:

‘There is a great feeling all over Australia against the introduction of coloured persons … I do not want this clause to pass in a shape which would undo [discriminatory polices] in regard to that class of persons’.[42]

Australians’ xenophobia was not unique: Thomas Jefferson proclaimed ‘all men are created equal’ while owning hundreds of slaves.[43]  However, the racial implications of the Constitution – and particularly the 14^th Amendment – may have eluded the founding fathers.[44]

II         Non-Cultural Influences  

While differences in American and Australian culture can partly explain why Australia does not have a Bill of Rights, there are also non-cultural reasons why Australia does not have a Bill of Rights. Cheryl Saunders attributes the absence of a Bill of Rights to federalism.[45]  To some founders, federalism, rather than rights, was the answer to avoiding tyranny, particularly the ‘tyranny which is inseparably associated with central government’.[46]  This is evident in the Convention Debates, in which Isaacs warned Inglis Clarks’ proposed rights clause could limit state power.[47]  Furthermore, the primacy of federalism over liberalism is evidenced in the small gamut of rights enshrined in the Constitution:  the guarantee of trial by jury applies only in relation to a Commonwealth law,[48] and the non-establishment clause[49] was created so that only the states could enact religious laws.[50]  Ultimately, to quote Isaacs, a rights scheme was seen to ‘simply raise up obstacles unnecessary to the scheme of federation’.[51] 

Furthermore, Australia does not have a Bill of Rights partly because the celebrated legal philosophers at the time of Federation did not consider such protections necessary.[52]  In 1890, the views of AV Dicey ‘were in the ascendant’.[53]  Similarly, James Bryce’s writings influenced the founders:[54]  Deakin described Bryce’s work as ‘monumental’ and the ‘textbook’ for the Australian Constitution.[55]   Neither of these writers saw a need to enshrine rights, so it is ‘not surprising’ that so few rights were included in our Constitution.[56] 

III        Present

Our culture has changed in the past 120 years and Australians support individual rights more than at Federation. Australia has mostly cut the cultural and legal umbilical cord to our colonial motherland.[57]  The late 20^th century saw rights movements driven by cultural change, namely a ‘revulsion at the behaviour of states during the Second World War and an acceptance of the principle of equal dignity of all people’.[58]  This manifested in statutes aimed at preventing discrimination. [59]   In the 21^st century, Australia has seen renewed calls for human rights protection, which has not been realised by constitutional change but has been adopted at the state level: in 2004, the Australian Capital Territory adopted a Human Rights Act, [60] which was followed by Victoria in 2006,[61] and Queensland in 2019.[62]  The cultural shifts of declining trust and a belief in equality may be why there has been a trend of State and Territory governments adopting human rights codes.  Calls for a bill of rights may continue because Australians, following global trends, have lost trust in democratic institutions,[63] and satisfaction in democracy is at an all-time low.[64]  

While our culture now places importance on individual rights, there are practical hurdles to a Bill of Rights.  Whether Australia adopts a statutory charter of rights[65] or constitutional Bill of Rights will partly depend on whether politicians are willing to open a ‘can of worms’: a national debate about which rights to protect.[66]  The continuing political controversy surrounding 18C of the Racial Discrimination Act (which makes it unlawful for a person to engage in behaviour which offends on the basis of race, unless such conduct is in furtherance to public discourse) provides an example of how fraught politics can become when it involves individual rights.  Many politicians had negative reactions to the recommendation made by the 2010 National Human Rights Consultation Committee to introduce a statutory Bill of Rights.[67] 

Furthermore, while rights protection has electoral support,[68] it is viewed as ‘desirable but not urgent’.[69]  For instance, the Australian Bill of Rights Bill 2019, proposed by independent Andrew Wilkie MP, has received little mainstream attention. Perhaps this is because Australians are still not overly excited about individual rights.  Finally, to the extent that the electorate desires constitutional rights because of a change in culture, there are great practical hurdles for a constitutional Bill of Rights, particularly because such a proposal would require a referendum which may not succeed or even be proposed because politicians may be reluctant to propose referendums that could fail.[70]   

Conclusion

While Australia may never identify as the Land of the Free like America, our culture has changed such that many, though not all, now view government as something which we need protection from.  The attitudes regarding equality and trust in institutions which influenced the Australian founders 120 years ago have waned such that the trend of rights adoption by States and Territories will likely continue.  However, to the extent that Australian culture now places a greater importance on individual rights, there are practical reasons – electoral support and political hurdles – which explain why a constitutional Bill of Rights has not been adopted by Australia.   

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Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106

Brown v Board of Education of Topeka (1954) 347 US 483

Plessy v Ferguson (1896) 163 US 537

C         Legislation

Australian Bill of Rights Bill 2019 (Cth)

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Constitution of Australia Act 1901

Human Rights Act 2004 (ACT)

Human Rights Act 1998 (UK)

Human Rights Act 2019 (Qld)

Privy Council (Appeals from the High Court) Act 1975 (Cth)

Privy Council (Limitation of Appeals) Act 1968 (Cth)

Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth)

Statute of Westminster Adoption Act 1942 (Cth)

D         Treaties

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

E          Other

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