The absence of an Australian bill of rights and its antiquated origins
The reasons that motivated the drafters of the Australian Constitution to not include a bill of rights are not compelling in light of modern circumstances. The installation of an Australian bill of rights would bring Australian law into the 21st century.
The Australian Constitution is unusual for its silence on individual rights. Unlike the US Constitution, its guiding concern is not to delimit the relationship between governmental authority and individual liberty — ‘the struggle between authority and liberty’ being ‘the most conspicuous feature in the portions of history with which we are earliest familiar’, said John Stuart Mills — but instead focuses on the technical task of establishing the institutions that govern the relationship between the independent states and the Federal government.
Particularly striking is that the Australian Constitution is not accompanied by any bill of rights. Australia is the only liberal democracy in the world without one. The answer to why the drafters omitted a bill of rights in 1900 helps explain why a bill of rights is needed. Three reasons can be offered for the drafters’ resistance against a bill of rights at the time of federation: 1) belief in the benefits of white racial unity; 2) the sense that there was no need for a bill of rights; 3) and an emphasis on state concerns over individual concerns. None of these reasons are compelling in 2020. Indeed, some of them are positive reasons for a bill of rights.
Belief in the benefits of white racial unity
One reason for the drafters’ aversion to a bill of rights in 1900 was that a bill of rights would undercut the drafters’ interest in denying non-European Australians full participation in Australian life. The drafters saw three benefits in creating a federation underpinned by white racial unity.
First, white racial unity was justified on an economic basis. The concern was that cheap Chinese labour undercut the wages of white workers while the importation of black labour created the perception that working in the sugar cane fields was beneath white Australians, meaning white labour was underutilised.
Moreover, as noted by the Premier of Queensland, and the future Chief Justice of the High Court, Samuel Griffith, imported black labour ‘tended to encourage the creation of large landed estates owned … by absentees and worked by gang labour, and so discouraged actual settlement by small farmers working for themselves’.
Second, racial unity was justified pragmatically as a necessary means to attract support for federation. Isaacs Isaacs, the Commonwealth’s first attorney-general and a future High Court judge, said at the time:
to put it in plain language, our factory legislation [restricting the employment of Asian workers] must be void. … I would ask them how they can expect to get for this Constitution the support of the workers of this colony or of any other colony, if they are told that all our factory legislation is to be null and void, and that no such legislation is to be possible in the future?
Third, and perhaps most perversely, the framers justified the exclusion of non-desirable races from an equal opportunity to work in Australia on liberal democratic grounds. According to Griffiths:
the permanent existence of a large servile population not admitted to the franchise was not compatible with the continuance of free political institutions.
By denying certain people equal opportunity of work based on their race, the government avoided the need to provide them an equal position in the constitution order. In other words, if such people were barred from participation in Australian society, then they didn’t pose rights necessitating protection. This tactic of exclusion was used devastatingly against the Indigenous. As Professor Patrick Emerton puts it:
rather than a bill of rights to protect (among others) racial minorities, the drafters opted for a strongly democratic and popular framework which (in their minds) was predicated on the absence of such minorities within the polity.
In a multicultural nation that takes pride in the diversity of cultural backgrounds of its people, and which considers immigration as a necessary economic asset for Australia’s long-term success, a belief in racial unity is deeply antithetical to contemporary Australian values. Indeed, where the drafters saw the possibility of a bill of rights permitting multiculturalism as a reason against a bill of rights, many modern Australians would reach the exact opposite conclusion.
Sense that there was no need for a bill of rights
In holding that there was no basis in the Constitution for implying general guarantees of fundamental rights and freedoms, former Chief Justice of Australia, Sir Anthony Mason, said in 1992:
To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.
Two points motivated the drafters’ sense that there was ‘no need’ for a bill of rights to protect against a tyrannical Parliament.
First, the drafters saw no historical reason to justify a bill or rights. As former Chief Justice, Owen Dixon, noted:
The framers of the Australian Constitution were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to the control of the legislature itself.
The absence of a past evidencing the dangers of tyrannical government in Australia engendered a degree of comfort in the drafters with governmental power not shared by their earlier American and French counterparts. For example, the argument for a similar provision to that of the 14th amendment in the US Constitution — which guarantees equal protection under the law — was seen as superfluous. Isaacs remarked of the 14th amendment:
when one recollects how the 14th amendment came into the American Constitution, one is a little surprised to think that it is necessary to put such a clause in this Bill [for a constitution]. It was put in the American Constitution immediately after the Civil War, because the Southern States refused to concede to persons of African descent the rights of citizenship. The object of the amendment was purely to insure to the black population that they should not be deprived of the suffrage and various rights of citizenship in the Southern States.
‘The drafters of the Australian Constitution,’ Professor Emerton writes, ‘seem to have rejected rights protection on the grounds that there was no fundamental cleavage in the community that would make something like the Fourteenth Amendment necessary.’
Second, the drafters saw no need for a bill of rights because of broader trends in political theory that (i) downplayed the theory of natural rights and (ii) emphasised representative government as a sufficient limit on arbitrary government power. Professor Jeffrey Goldsworthy writes:
with respect to rights, the framers were influenced more by the British than the American constitutional tradition. Australian federation resulted … from calm, pragmatic reform by colonial politicians encouraged and assisted by the Imperial government. Utilitarianism had replaced natural rights as the main currency of British political thought, and Australia has been described as a paradigmatically utilitarian society.
And notes further, along with Professor Lisa Burton Crawford:
Progressive social thought optimistically assumed the forward march of history, guided by enlightened, scientific thinking. After a century of increasing democratization, parliamentary democracy was widely believed to be the key to a more just and prosperous future.
The downplaying of natural rights theory encouraged a certain faith in representative democracy as a cure to the problem of tyrannical government. Rights-protection was not necessary because, as Jeremy Bentham argued, if the people at large were able to elect their rulers, then there would emerge an identity of interests between the rulers and the ruled since people would vote in line with their interests. Thus, in 1902, William Harrison Moore, wrote that the ‘great underlying principle’ of the Australian Constitution was ‘that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power’.
The drafters’ faith in representative government might be better characterised as hubris. They were intensely confident in the democratic quality of the Australian Constitution — what former Chief Justice Robert French described as the drafters’ ‘loftier vision of nascent Australian constitutionalism’. The remarks of Alfred Deakin, Australia’s second Prime Minister, are illustrative:
‘An executive responsible to the people — responsible to the parliament and to the popular chamber — will necessarily express and be governed by those currents of popular feeling which in America are almost powerless to affect the course of events. There the people only speak every four years; they only speak as a whole at the election of a president, and then they speak only through the party machine. In these colonies they will speak freely and often on the well known lines of division between liberal and conservative’
…
there is no Federal Constitution in the world so liberal. … Every existing Constitution in Australia is less liberal from a political point of view in its framework and machinery than the Federal Constitution. Liberal electors will note, therefore, that whatever powers they sacrifice they are transferring to a more liberal Government, over which they have a readier control.
While the constitutional theorist James Bryce described the Australian Constitution in 1901 as the ‘high-water mark of popular government’.
Edmund Barton, later the first Prime Minister of Australia, saw no danger in a potential expression of illiberal Parliamentary power without the constitutional certification of individual rights, arguing that the Constitution’s provision of social good powers was sufficient:
the want of foundation of accusations against this [draft Constitution] Bill on account of its alleged illiberal character’ is evidenced by such ‘very important further powers’ as ‘the power to legislate with reference to invalid and old-age pensions … [and] for the appointment of courts of conciliation and arbitration in industrial disputes which extend beyond the limits of one state.
But as Professor Emerton notes:
Barton appears to take it for granted that a popularly elected Parliament will use these powers; he certainly does not evince any concern that a popular majority might be able to control the Parliament so as to prevent the use of these powers to realize the social goals at which they manifestly are aimed.
The drafters also overlooked the role of the courts as a democracy-enhancing device. The drafters did not appear to countenance the idea, as expressed by Geoffrey Robertson, that ‘charters [or bills of rights] return some of that power to the people, by allowing them to challenge decisions that lack fairness or scruple or consistency’.
Obsession with the states
A third reason for the drafters’ omission of a bill of rights is the drafters’ obsessive focus on state matters, rather than individual matters.
As Professor Saunders notes:
in 1901, the primary goals of the Australian Constitution were to achieve unity, through federation, under the umbrella of a new national polity that met democratic ideals that were progressive, by the standards of the time.
The focus on the states not only distracted attention away from individuals and the dangers to their personal liberty of an emboldened central government. State interests were also used to actively justify the exclusion of a bill of rights. For example, as French notes, in a preliminary draft of the Constitution, Andrew Inglis Clark included some rights guarantees inspired by the American Constitution, including rights relating to equal protection and due process, but at the 1898 Convention in Melbourne, opposition arose to these rights on the ground that they ‘would affect the legislative powers of the states’.
Today, while State interests are still of obvious considerable importance, the elevation of the legislative powers of the states over the safeguarding of basic individual rights is likely not to attract the same support.
Conclusion
It must also be remembered that the drafting of the Australian Constitution was not a people-driven movement. It was led by a few aristocratic politicians and lawyers who debated and wrote the Constitution together and then proposed its ratification to only 60% of the Australian population — the other 40% (women and the Indigenous) were not considered sufficiently important to justify the opportunity to vote. It is therefore (somewhat) not surprising that the rights of minorities and the disempowered are not given express voice in the Constitution.
In any case, an examination of the rationale behind the drafters’ refusal to complement the Australian Constitution with a bill of rights — a rationale based on anti-multiculturalism, a hubristic belief that the institutions of representative and responsible government prescribed by the Constitution were sufficient to protect rights despite such institutions doing nothing to impede a tyrannical majoritarian will, and a devotion to state interests at the expense of individual interests — suggests that the drafters’ refusal was not a well-reasoned or admirable decision. Opponents to an Australian bill of rights therefore lose out on the opportunity to source their argument in the remarks of our otherwise brilliant constitutional drafters.
