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 CONSTITUIONAL INHERITANCE AND A BILL OF RIGHTS

I INTRODUCTION

Australia is a lucky country run mainly by second rate people who share its luck. It lives on other people's ideas…[1]

So said Donald Horne in his oft-misunderstood magnum opus.[2] It reflects a certain Australian culture: lackadaisical, complacent, even negligent. This culture – in contrast to America’s ‘rights-aware’ culture – could be said to have produced a flimsy Constitution, lacking in protection of basic rights. Australia’s relatively democratic, liberal nature might owe more to luck than foresight.

This essay will not take that view. Instead, using precise examination of debates over the Constitution and subsequent jurisprudence, it will demonstrate that Australia’s lack of a constitutional Bill of Rights was the outcome of careful debate on how the nascent Federation should function. First, analysis of early constitutional debate and jurisprudence will be used to suggest that the States were viewed as more likely, and, indeed, necessary protectors of rights (than the newly-formed Federation). Second, analysis of Westminster democracy and responsible government will be used to underline the incompatibility of extensive Bills of Rights with those long-held British ideals. Third, xenophobic sentiment will be analysed as a reason for the absence of an “equal protection”-type clause. Together, it will be contended that these arguments represent a considered ideological, legal and historical inheritance that is a more comprehensive explanation than comparisons with America and its culture.

II A MINIMAL FEDERATION

To answer this question, it is necessary to examine the way in which the Federation was supposed to operate. Two key sources – constitutional debates and early jurisprudence – support the idea that the Commonwealth government was supposed to be domestically minimal, and concerned only with matters beyond an individual State. At the outset, it must be recognised that there are limited express rights-protections in the Constitution, but these cannot act as a substitute for a fuller Bill of Rights.[3]

A Debates

Debates on the nature of the new Commonwealth, in 1890-91 and 1897-98, were extensive. They provide a unique window into the process by which the mechanisms of the Australian government were designed and decided.[4]

Some debate on the issue of rights-protections stemmed from the viewpoint of Andrew Inglis Clark, then Tasmanian Attorney-General. An admirer of the American system, Clark proposed a religious freedom clause. [5] The view of the delegates was perhaps best summed up by Edmund Barton, debating a prohibition of establishment of religion: “I take it that in the absence of a provision in the Constitution conferring that power upon the Commonwealth it will be impossible for the Commonwealth to do so.”[6]

This reflects the broad view of the delegates that wholesale protections of rights were otiose, as the Commonwealth would be unable to materially diminish rights. Sir John Downer made this point shortly after Barton spoke, describing the proposed clause as “inconsistent with federation”, because “states retain all such powers [not given] to the Commonwealth.”[7] Unsurprisingly, then, it was particularly objectionable that the clause purported to expressly bind the states.[8]

The clause was ultimately included;[9] importantly, though, it prohibits the Commonwealth interfering in religious practice, but leaves the States to legislate entirely as they please.[10] Some scholars therefore regard its existence as a mere result of political manoeuvring.[11] But what these debates do demonstrate is the drafters’ intention to limit Commonwealth power, not by extensive rights protections, but by reserving power to the states, which could ultimately forge their own path apropos of rights. As such, it is suggested that the absence of a wider Bill of Rights is owed more to deliberate decision-making than cultural complacency.

B Jurisprudence

Early jurisprudence (that is, decisions prior to Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers Case’)) bears out the idea that weaker central government was the intention of the Constitution’s drafters.[12] Engineers Case ended two early doctrines of Constitutional interpretation – implied intergovernmental immunities and reserved powers – which were axiomatic in the initial High Court; concomitantly, Engineers ended the dominance of the drafters’ – now High Court Judges’ – intentions over Constitutional interpretation. [13]

Implied intergovernmental immunities stood for the principle that Commonwealth and State laws could not bind the other’s executive.[14] D’Emden v Pedder begat this principle.[15] In that case, the Court held that states could not interfere with Commonwealth powers, such as by specifically taxing Commonwealth employees.[16] The principle was found to be reciprocal in Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association.[17] In that case, the Court held that employees of state railways were not subject to federal industrial arbitration, as this would breach the implied immunity of states from Commonwealth power. Here, the Court said that its decision was based on the intention of the “framers of the Constitution” – the then-judges of the High Court themselves.[18]

Similarly, the reserved powers doctrine held that Commonwealth powers should be interpreted restrictively, and that remaining governmental power was “reserved” to the states. The creation of this doctrine – first in Peterswald v Bartley –[19] was hardly surprising: at the Constitutional debates, (later Chief Justice) Griffith said: “property and civil rights are left to the states”.[20] In that case, the Court narrowly construed the Commonwealth’s exclusive power to levy excise taxes, and in so doing prevented the Commonwealth excise tax on beer production invalidating a NSW licence fee on beer producers (on the ground that the fee was not an excise tax).[21] This principle was reinforced in Huddert, Parker and Co Pty Ltd v Moorehead,[22] in which the Court narrowly construed the Commonwealth’s power to regulate corporations.[23] The Court upheld the reserved power of a state to regulate trade within its borders, and indeed made clear that the Commonwealth ought have no involvement therein.[24]

What these doctrines clearly demonstrate is the intention of the Constitution’s drafters – now High Court judges – to keep Commonwealth power focussed on matters of distinctly national character, and to repose as much power in the states as possible. It follows, therefore, that a Bill of Rights was not included; naturally, these jurists felt that the proper place for rights protections, if there was one, was in the States.[25]

III WESTMINSTER DEMOCRACY

Westminster Democracy and its peculiar characteristics of parliamentary supremacy and responsible government were foremost in the mind of the framers as they rejected explicit constitutional guarantees of rights.

Both the due process and equal protection clauses are key elements of the Fourteenth Amendment to the American Constitution, and were considered in Australia.[26] The due process clause was voted down; delegates suggested that such a provision would reflect negatively on Australian society, especially given that – according to Dr Cockburn of South Australia – no Australian state had ever attempted to “deprive any person of life, liberty or property without due process of law”.[27] Quite what Australia’s indigenous people might have said about that is worth consideration. Later-Justice Richard Edward O’Connor noted, presciently, that at some time popular feeling might engender a state acting in such a manner as to enliven the need for a due process protection.[28] Such logic was apparently unappealing; indeed, some weeks later, Victorian delegate William Trenwith suggested that such a problem was “utterly impossible to conceive”.[29]

What is abidingly clear is the view of the delegates that the possibility of such an egregious act was remote, and that even if it did occur, what might now be termed common law protections would operate to prevent it (including, apparently, the withholding of Royal Assent).[30] The suggestion that protections were necessary was viewed as almost insulting, as though implying that the people of the Commonwealth (or a State) and the instrumentalities thereof would not be able to manage such a problem.[31]

The equal protection clause was similarly struck out. Isaac Isaacs regarded it as raising “insuperable difficulties” and questioned why it was necessary at all.[32] Earlier, he had noted that such a clause would prevent the states or Commonwealth legislating differently for people of different races.[33] More broadly, the gist of the debate was that the clause could unduly limit legislating ability, and so ought to be struck out. It was.

What this reveals is the deep divide between American and Australian Constitutionalism. American Constitutionalism is often regarded as an attempt to protect rights from overbearing executive government – perhaps reflective of then-recent actions by the British – or, as (the then) Stephen Gageler put it: “In the name of "the People" the government was to be removed from the people…”[34] The Australian principle was markedly different; reflective of its relatively benign recent history (at least for the white, male drafters), the “inconvenien[ce]” of a Bill of Rights to the British parliamentary system seemed paramount.[35]

This “inconvenience” manifests in two ways. First, for the drafters, examples of situations in which rights-protections were necessary were remote from their minds. This point was made extrajudicially by Sir Owen Dixon, who argued that the history of Australia did not demonstrate any such necessity to the drafters.[36] Moreover, it was the British Parliament that had fought its executive branch to secure fundamental rights.[37] To force constitutional restrictions on the Commonwealth parliament likely seemed odd in that light. Second – the view of Cockburn, Trenwith and Isaacs, among others – that “constitutional guarantees of freedoms [could be viewed as] exhibiting a distrust of the democratic process.”[38] Sir Owen reinforced this point, describing the same as “a want of confidence in the will of the people”.[39]

Sir Robert Menzies considered this further, arguing that “to define human rights is either to limit them… or express them so broadly” to make government impossible.[40] The former view was, interestingly, expressed by Alexander Hamilton in Federalist 84, similarly concerned that a Bill of Rights would limit the rights of the people to only those rights.[41] Menzies went on to say that, for Australians, “responsible government in a democracy is…the ultimate guarantee of justice and individual rights”, perhaps summing up quite pithily the gist of the debates some 69 years earlier.[42] Responsible government – the accountability of the executive to Parliament, and Parliament to the people – promotes “flexibility and responsiveness to the popular will”.[43] Accordingly, the drafters could find no need for seemingly-otiose provisions that unduly limited their ability to legislate (principally it seems, by race), which in turn diminished the very responsibility of government.[44] In a more modern light, such (racial) legislation is arguably the very reason for constitutional guarantees of rights.

Taking Menzies’ point, we can understand that a Bill of Rights was fundamentally incompatible with the constitutional and governmental inheritance of Australia at the time.[45] Its exclusion may not have been entirely unfortunate. The US Supreme Court does not have an unblemished record of preventing violations of rights, a point to which the plaintiffs in Dred Scott v Sanford and Korematsu v United States could likely attest, equal protection clauses notwithstanding.[46]

This Australian adherence to the principles of responsible government and parliamentary supremacy could be regarded as cultural. That would seem insufficient, however. The differences struck at the very heart of the history of Australia, the motivations for Federation and the kind of government that the drafters were trying to create. It would be grossly reductive to describe such a confluence of factors as merely “cultural”, and to frame the resulting Constitution as the product of “differences with America” would be similarly lacking in comprehensiveness.

IV XENOPHOBIA

While much of the opposition to expansive rights was principled, and founded upon ideas of responsible government or minimal government, some, plainly, was not. Instead, it was based more obviously on xenophobia, untethered directly to any guiding principle. This suggested reason for Australia’s lack of a constitutional Bill of Rights has not been the subject of extensive scholarly debate, but is worth analysing in a critical light.

Race, and the ‘threat’ of foreigners (especially those from Asia), was the subject of significant debate at the Constitutional Conventions and afterward with the passage of the White Australia Policy.[47] During the debates on the race power, existing laws against Chinese labour and “certain coloured races” were discussed.[48] Roughly two weeks later, Joseph Carruthers, debating the equal protection clause, said: “I want to know what immunity a Chinaman naturalised in Victoria possesses which he is deprived of by any law of New South Wales…” arguing against the Commonwealth overriding state-based discrimination.[49] Sir John Forrest had said just earlier: “…there is a great feeling all over Australia against the introduction of coloured persons…” and argued against undoing any legislative enactment of those feelings.[50] Some weeks later, certain delegates again argued that an equal protection clause would mean that discrepancies in race-based law between states could be overcome via migration.[51]

These discussions were in spite of the fact that an equal protection clause could have taken the meaning given in Plessy v Ferguson[52] – that is, that different classes of persons may be treated separately (an axiom of American jurisprudence until Brown v Board of Education)[53] – which would have provided at least some protection of rights. On this point, it is also worth noting that America’s Bill of Rights was developed in spite of its own xenophobia, slavery and disenfranchisement; both countries shared this aspect of culture, but have markedly different constitutional rights. It should thus be increasingly clear that little about Australia’s constitution can be meaningfully explained by a comparison with American culture. In any event, it cannot go unsaid that one reason for a lack of a Bill of Rights in the Australian Constitution is xenophobia and prejudice; express guarantees of rights were to be avoided as they might prohibit legislative manifestations thereof. This, in some way, falls back on the foundations of responsible government: a Bill of Rights might have proscribed legislating by racial group, a matter which, in the eyes of the framers, should have remained the sole preserve of (either state or Commonwealth) Parliament. But that may be to put the views of some drafters too highly; it was simple xenophobia that motivated them.

V CONCLUSION

It would be unfortunate to simply tangle all of the above into “cultural differences”. Considerably more thought was put into the Constitution than that; it was neither a product of lackadaisical negligence – the Donald Horne view, applied to the Constitution – nor was it a result of blithe adherence to British preconceptions. Rather, the exclusion of (most) express guarantees of rights was a deliberate choice based on the drafters’ final view that the States should be the primary instrumentality of the new Federation, a fundamental belief in the value of Westminster democracy and responsible government, and simple xenophobia. Some may ascribe any of these reasons to the “culture” of the time, but to then ascribe Australia’s lack of a constitutional Bill of Rights to such a culture would be reductive. It would fundamentally misrepresent the nature of the constitutional debate at the time and subsequent jurisprudence; the Constitution’s creation was due far more to ideological, legal, and historical reasons than “cultural differences” might suggest, not to mention certain similarities with American culture. On those bases, we must search more widely than “culture” to understand wholly the unique nature of the founding document of the Federation.

Bibliography

A Articles/Books/Reports

Aroney, Nicholas, ‘A Seductive Possibility: Freedom of Speech in the Constitution’ (1995) 12(2) University of Queensland Law Journal 249

Bryce, James, The American Commonwealth (Macmillan, 1888)

Carrick, Bernice, ‘Freedom On The Wallaby: A Comparison Of Arguments In The Australian Bill Of Rights Debate” [2010] (1) The West Australian Jurist 68

Dixon, Rosalind, ‘An Australian (partial) bill of rights’ (2016) 14(1) International Journal of Constitutional Law 80

Dixon, Sir Owen ‘Two Constitutions Compared’ (1942) 28(11) American Bar Association Journal 733

Gageler, Stephen, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17(3) Federal Law Review 162

Garran, Robert, The Coming Commonwealth (Angus & Robertson, 1897)

Hamilton, Alexander, Federalist No. 84

Horne, Donald, The Lucky Country (Penguin Books Australia, 1964)

Irving, Helen, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge University Press, 1999)

Kildea, Paul, ‘The Bill of Rights debate in Australian political culture’ (2003) 9(1) Australian Journal of Human Rights 65

La Nauze, J A, The Making of the Australian Constitution (Melbourne University Press, 1972)

Menzies, Sir Robert, Central Power in the Australian Commonwealth (Cassell and Co, 1967)

Patapan, Haig, ‘The dead hand of the founders? Original intent and the constitutional protection of rights and freedoms in Australia’ (1997) 25 Federal Law Review 211

Quick, John and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, 2015).

Rossiter, Clinton, (ed), The Federalist Papers (New American Library, 1961)

Twomey, Anne, ‘Federal limitations on the legislative power of the States and the Commonwealth to bind one another’ (2003) 31 Federal Law Review 507

Williams, George, ‘Legislating for a Bill of Rights’ (2000) 25(2) Alternative Law Journal 62

Williams, George, ‘Legislating for a Bill of Rights Now’ (Speech, Australian Senate Occasional Lecture Series, 17 March 2000)

Williams, John, ‘The Emergence of the Commonwealth Constitution’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 24

B Cases

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129

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

Brown v Board of Education 347 U.S 483 (1954)

D’Emden v Pedder (1904) 1 CLR 91

Dred Scott v Sandford 60 U.S. 393 (1857)

Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association (1906) 4 CLR 488

Huddert, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330

Korematsu v United States 323 U.S. 214 (1944)

Peterswald v Bartley (1904) 1 CLR 497

Plessy v Ferguson 163 U.S. 537 (1896)

Yick Wo v Hopkins 118 U.S. 356 (1886)

C Legislation

Australian Constitution

Immigration Restriction Act 1901 (Cth)

United States Constitution

D Other

Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Interim Report 127, March 2016)

Official Record of the Debates of the Australasian Federal Convention, Melbourne, 20 January 1898 – 17 March 1898

Official Record of the Debates of the Australasian Federal Convention, Sydney, 2 September 1897 – 24 September 1897

Official Report of the National Australasian Convention Debates, Sydney, 2 March 1891 – 9 April 1891

Official Record of the Proceedings and Debates of the Australasian Federation Conference, Melbourne, 1890

Records of the Australasian Federal Conventions of the 1890s, Parliament of Australia (Web Page) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedu...

The Australian Constitution and the United States’ 14th Amendment, UTS (Web Page) <https://www.uts.edu.au/sites/default/files/Robert Size - winning essay in format with endnotes.pdf>