Australian Journal of Human Rights
The Bill of Rights debate in Australian political culture
The seemingly perennial debate over whether Australia should have a Bill of Rights has brought little joy to rights advocates. From the first attempts to include rights protections in the Constitution in the 1890s, to present day campaigns for reform, rights proposals in Australia have a history of rejection. Partly reflecting the absence of an Australian Bill of Rights, the topic has largely been written about from a purely legal or political perspective, and often as part of a reform agenda. This article departs from the existing literature by adopting an historical approach. It traces the Bill of Rights debate over time, and seeks to position it in the context of Australian political culture.1 The concept of ‘political culture’ helps to imbue the often disparate episodes of the Bill of Rights debate with a broad context, connecting its development with underlying attitudes in the Australian community. To adopt the words of Helen Irving, it helps us to see that the Bill of Rights debate is ‘a living part of people’s lives and the cultural forces that shaped them’ (Irving 1999: 1). In particular, this article endeavours to explore the relationship between the content and trajectory of the debate and three fundamental attributes of Australian political culture: utilitarianism, nationalism and egalitarianism.
The influence of utilitarianism on Australian political life has been, and continues to be, evidenced by a routine privileging of majority interests, a concentration on practical considerations and an aversion to abstract political concepts. As will be explored in the first section of this paper, Bill of Rights advocates have struggled in this political environment to champion an instrument which does not easily lend itself to pragmatic considerations of ‘use value’, and which is premised on the notion that a check should be placed on the will of the majority. After the Second World War, Australian political culture gradually became more accommodating to certain notions of rights, as was evidenced by the increasing prominence of rights questions in domestic politics. However, this cultural shift was insufficient to change the fortunes of rights advocates. In the face of continued failures, advocates struggled to sell the Bill of Rights as an instrument of majority value and adopted increasingly pragmatic models and tactics.
The next section will look at the influence of external developments and practices on Australian approaches to rights. This influence has been one of the historical constants of the debate. Before 1945 the participants in rights debates commonly made reference to British and American practices, while after the formation of the (UN), discussion of rights was increasingly shaped by the emergence of an international human rights framework. Following the Second World War, the shape of the debate became closely linked to changing conceptions of Australia’s place in the world — from a country that saw itself as an outpost of the British Empire to a member of the global community. As Australia’s conception of ‘internationalism’ shifted from imperial relations to multilateral engagement, tensions emerged between new notions of global identity and an identity based in nationalist, often nostalgic, themes. The debates over various Bill of Rights proposals reflected these tensions and depicted an Australia unready to fully embrace the legal, political and cultural changes being ushered in by an emerging international order.
Contrary to recent ideas about universality, the discussion of rights in Australia has been marked by exclusion, with judgments made about who is entitled to rights and who is not. As will be explored in the final section, exclusion from rights has been directly linked to prevailing notions of egalitarianism. As Elaine Thompson points out in her book on the topic, Australia’s understanding of ‘egalitarianism’ was long connected to the idea of ‘sameness’ — that is, that all Australians were racially and culturally the same. Those who could not claim to be ‘the same’ — women and various minority groups, for example — were excluded from the ‘community of egalitarians’, the core group comprising persons entitled to equal treatment (Thompson 1994: ix–x, Chapter 2). Notions of who is entitled to rights have largely corresponded with membership of the egalitarian community. Exclusion from the rights domain has been largely determined by ‘racial’ criteria,2 but has also been linked to gender and sexuality. After 1945, Australia saw the emergence of a more pluralist society and the gradual removal of many legal barriers to equality, but the rights debate continued to be premised on exclusion rather than inclusion. This demonstrated that a commitment to political equality could not dismantle notions of egalitarianism that remained entrenched in community attitudes.
Bill of Rights proposals — a brief chronology
Prior to the 1891 Constitutional Convention, Andrew Inglis Clark included several rights protections in his draft Constitution: a right to jury trial for all crimes (cl 65), a prohibition on the establishment of religion by the federal government (cl 46), and a freedom of religion clause that bound both federal and State governments (cl 81). He later added an ‘equal protection of the laws’ clause that was modelled on the Fourteenth Amendment to the US Constitution3 (Williams G 2002: 37–38).
Of these, cl 65 was amended to refer only to indictable offences against Commonwealth law and became s 80 of the Constitution; a similar provision to cl 46 became s 116, while cl 81 did not survive; cl 110 was rejected.
Attorney-General H V Evatt introduced into Parliament a Bill that proposed a referendum to transfer to the Commonwealth, for a period of five years, fourteen powers for the purposes of national reconstruction after the war (Constitution Alteration (Post-war Reconstruction) Bill 1944 (Cth)). Evatt inserted guarantees of freedom of speech4 and freedom of religion5 into the Bill at the last minute. They proved to be of only minor importance in the overall debate about post-war reconstruction. The referendum was defeated.
In November 1973, Attorney-General Lionel Murphy introduced the Human Rights Bill into Parliament. It was a statutory Bill of Rights, based on the International Covenant on Civil and Political Rights (ICCPR). The Bill included most of the rights contained in arts 2–27 of the Covenant, bound both the Commonwealth and the States, and created the position of Human Rights Commissioner for the resolution of cases outside the courts (Human Rights Bill 1973 (Cth); see Bailey 1990: 53–54). The Bill attracted a lot of controversy, and never advanced beyond the Second Reading. It was abandoned by the Whitlam Government in the lead-up to the 1974 federal election.
Attorney-General Gareth Evans announced the Government’s plans to enact a statutory Bill of Rights, and privately circulated a draft Bill to certain individuals. Against Evans’ wishes, the Bill was made public by the Queensland Premier, Sir Joh Bjelke-Petersen, in the lead-up the to the 1984 election, and opponents exploited the issue. After Labor won the election, Evans’ Bill of Rights was abandoned when Lionel Bowen replaced him as Attorney-General.
In October 1985, Bowen introduced the Australian Bill of Rights Bill into Parliament. Like the 1973 Bill, it was based on the ICCPR. It was significantly weaker than the Evans Bill.6 After a lengthy public debate the Government was unable to secure majority support in the Senate, and the Bill was withdrawn on 19 August 1986.
The Hawke Government held a referendum, proposing the insertion of a small number of rights into the Constitution. The proposals included the right to vote, a guarantee of ‘one vote, one value’, and the extension to the States of the Constitutional guarantees of the right to jury trial, freedom of religion and acquisition of property on just terms (Bowen, HOR, 10 May 1988: 2388–2390). The rights proposal received the greatest defeat of any referendum proposal since Federation, with a 31 per cent ‘Yes’ vote (Galligan 1990: 363).
Perennial denial: rights and utilitarian culture
Utilitarianism has regularly been identified as one of the defining characteristics of Australian political culture (Hancock 1961; Collins 1985; Galligan 1994; Warden 1995). It was prominent as a political philosophy in the Australian penal colonies, but became particularly entrenched in the mid-nineteenth century after some of the ideas of the Chartist movement took hold (Warden 1995, 133–138). The Chartist agenda, which focused on suffrage and saw parliamentary representation as the path to change, owed much to the ideas of Jeremy Bentham (Collins 1985: 150). Bentham, one of the fathers of utilitarianism, argued that the guiding principle of conduct should be to achieve the greatest happiness for the greatest number (Collins 1985: 148–149). According to this view, the role of government was to improve a community’s ‘average welfare’ — this could be determined by summing all individual interests, and acting according to the interests of the majority (Dworkin 1977: 232–238, 274 and following). There was no room for notions of rights in this philosophy because the idea that individuals possessed rights suggested that the will of the majority could on occasion be superseded by individual or minority interests (Charlesworth 2002: 38). Bentham himself thought the idea of rights was ‘rhetorical nonsense — nonsense upon stilts’ (quoted in Charlesworth 2002: 39). This type of hostility was to prove a major obstacle for rights advocates, both in the 1890s and throughout the twentieth century. However, advocates would also have difficulty working within the ‘ideological apparatuses’ of utilitarianism (Warden 1995: 137). These included an aversion to abstract concepts and idealised arguments, a focus on questions of utility, and a reduction of fundamental political issues to an exchange of interests.
1890–1945: The utility of rights
If Australians were to come together today to fashion a new Constitution, the question of human rights would be towards the top of the agenda. The Constitution that came into operation on 1 January 1901, however, contained only three provisions that related directly to human rights:7 trial by jury for indictable offences; freedom of religion; and a limitation on discrimination based on State residence.8 It was a Constitution that befitted a utilitarian political culture, and drew a stark contrast with the US Constitution with its Bill of Rights. Indeed, the question of rights protections might not have arisen at all if it had not been for the contribution of Andrew Inglis Clark, a Tasmanian inspired by the American rights tradition. Prior to the 1891 Convention, Clark, then Tasmanian Attorney-General, prepared a draft that was to shape the Constitution as finally enacted.9 Although Clark did not propose a US style Bill of Rights, his admiration for American institutions and traditions was reflected in his inclusion of several rights protections.10 Compared to the various national and international rights instruments that exist today, these proposals seem modest. In late nineteenth century Australia, however, they were a major departure from the prevailing political ideology which valued the majority will over minority rights.
Most of the Convention delegates were steeped in the British constitutional tradition, and thus rejected the need for rights protections. They were especially influenced by the ideas of two nineteenth century constitutional commentators: James Bryce and A V Dicey. Both thought that individual rights were adequately protected by the common law and the rule of law. The idea of rights protections was also contrary to Dicey’s notion of parliamentary sovereignty.11 Dicey’s trust in Parliament makes sense when one considers that it had been unchecked Executive power that had posed the greatest threat to British citizens (Patapan 1997: 218–219), and that, in the nineteenth century, the UK Parliament had secured important rights.12 The influence of these ideas was borne out in a number of contributions to the Convention debates. Victorian delegate William Trenwith, for example, said that ‘it seems to me to be utterly impossible to conceive that such a Parliament will proceed to infringe any of the liberties of the citizens’ (Trenwith, Convention Debates 1898: 1761). By eschewing the need for rights protections, delegates like Trenwith left the protection of individual rights in the hands of the will of the majority, as expressed by Parliament. Delegate Richard O’Connor, like Clark, was concerned that laws passed by majorities were not always just, but few delegates agreed (O’Connor, Convention Debates 1898: 682; Charlesworth 2002: 20). The result was the establishment of a constitutional system that, consistent with utilitarian philosophy, secured the expression of majority will.
The dominance of the utilitarian ideology was also evident in the manner in which the framers debated Clark’s religious freedom proposal. Rather than engaging with abstract ideas of democracy and freedom that underpinned the idea of individual rights, the debate revolved around the proposals ‘use value’ — according to constitutional scholar L F Crisp, this was emblematic of the framers’ pragmatic approach to the Constitution as a whole.13 Discussion of the freedom of religion clause focused on its capacity to secure votes and satisfy the interests of the States. There was concern amongst some delegates that the reference to ‘Almighty God’ in the Constitution’s preamble would jeopardise the votes of Seventh Day Adventists, who had expressed fears that the reference would empower Parliament to pass Sunday observance legislation.14 Henry Higgins, Convention delegate and future High Court Justice, thought the inclusion of a freedom of religion clause would solve this problem (Higgins, Convention Debates 1898: 654). Higgins said, ‘I want to do what is, at the worst, harmless, with a view to secure a great number of votes in favour of the Constitution’ (Higgins, Convention Debates 1898: 656).15 In its proposed form, however, the clause bound both federal and State Parliaments — this offended delegates who sought to preserve the legislative autonomy of the States. After the clause was defeated, Higgins redrafted it in a form that bound the Commonwealth only. In his opening remarks on this amended clause, Higgins said:
My idea is to make it clear beyond doubt that the powers which the states individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters (Higgins, Convention Debates 1898: 1769).
Edmund Barton did not see the point of this proposal, for in his view the Commonwealth had no power to pass laws on religion anyway (Barton, Convention Debates 1898: 1771 and following). At worst, though, Higgins had successfully fashioned a clause that was harmless and likely to win votes — it passed, and became s 116 of the Constitution. Its essence as a ‘freedom’ seemed to have been lost in the process — as J A La Nauze remarked in his 1972 history of the making of the Constitution, ‘the States were left free, if they wished, to legislate for religious intolerance’ (La Nauze 1972: 229).
Reflecting the continued dominance of utilitarianism in Australian political life, questions of ‘usefulness’ were again central when constitutional freedoms next came up for discussion almost fifty years later in 1944. This is unsurprising, as there had been little to challenge the utilitarian orthodoxy in the interim. Writing in 1930, historian W K Hancock had reaffirmed the utilitarian nature of Australian democracy, and his assessment was certainly borne out in the lack of progress on rights issues (Hancock 1961). The only point at which rights arose in a significant way was in 1929, when a Royal Commission on the Constitution was conducted. It said little about rights issues, and concluded simply that the relations between individuals and government received little regulation by the Constitution.16 This was despite the widespread incidence of what today would be termed ‘rights’ issues. Most indigenous peoples were unable to vote, were denied access to basic social and economic benefits, endured restrictions on marriage, movement and employment, and were subject to the Government’s policy of child removal (Galligan and Sampford 1997: xxi–xxiii). Ethnic minorities, too, suffered from various forms of discrimination. As will be explored in the third section of this paper, notions of egalitarianism had much to do with these abuses going unaddressed. But these rights violations also demonstrated that the argument that parliamentary democracy adequately protected rights — which continued to have widespread acceptance — was only defensible in a utilitarian sense. The absence of rights protections only affected a minority of the population, whereas the average welfare of the community remained intact.
In 1944, the question of rights arose in the context of the Curtin Labor Government’s plans for post-war reconstruction. According to political scientist Brian Galligan, the Government sought to transfer fourteen powers to the Commonwealth to enable it ‘to carry out ambitious economic and welfare policies after the defence power was curtailed with the return to peace’ (Galligan 1990: 348). The Opposition, led by Robert Menzies, attacked Labor’s proposal and effectively exploited community fears about government becoming more centralised.17 Responding to these fears, Attorney-General H V Evatt inserted guarantees of freedom of speech18 and freedom of religion19 into the Bill at the last minute — as constitutional scholar Geoffrey Sawer remarked in his 1963 book, the rights were added ‘to reassure those who feared the socialist implications of the wider powers’ (Sawer 1963: 172). That the motivation behind these proposals was vote-getting, as opposed to a genuine desire to improve rights protections, was underscored by the fact that the rights were to expire, like the other parts of the Bill, after a period of five years. The time limit was also in opposition to Evatt’s personal preference for the guarantees to be permanently entrenched in the Constitution (HOR, 16 March 1944: 1399). As it turned out, the last minute rights proposals did not achieve the desired end. They were discussed only briefly in Parliament and were of little importance in a debate that ended up focusing on the dangers of centralised government (Galligan 1990: 350). As rights advocate Peter Breen remarked recently, Australians voted against the referendum proposals ‘not because they wanted to forego the opportunity to gain rights and freedoms, but because they wanted to preserve the few that they had’ (Breen 1999: 41).
While the use of rights guarantees as a means of securing voter support recalled Higgins’ utilitarian approach to his freedom of religion clause, the public’s reaction to Evatt’s rights proposals seemed wholly out of place in a utilitarian political culture. No opinion polls were conducted, but various contemporary statements suggest that the public looked upon the rights favourably. A newspaper editorial, for instance, cited Evatt’s belated inclusion of the rights provisions as evidence that federal Cabinet had ‘bowed to public opinion’ (Sydney Morning Herald 11 March 1944: 8). The President of the Constitutional Association called the inclusion of the rights guarantees ‘a triumph of the democratic method under which laws could still be reshaped through the influence of public opinion’ (Dr Frank Louat, quoted in Sydney Morning Herald 10 March 1944: 4). Also, on the basis of correspondence he had received, Evatt declared that ‘a tremendous body of non-partisan leaders of thought in this country, including church leaders of all denominations’ welcomed the inclusion in the Bill of the two freedoms (Breen 1999: 41). But what could be construed as the first signs of an emerging culture of liberty was in fact wholly consistent with utilitarianism. A favourable attitude towards rights was to be expected after five years of wartime suspension of civil liberties. Among the wartime powers assumed by the Commonwealth Government were opening mail, suspending the press and policing emergency measures (Breen 1999: 41). As a consequence, most Australians came to appreciate first hand the vulnerability of their basic freedoms. One newspaper editorial recorded that the people ‘have seen their freedoms grossly invaded on the pretext of war necessity’ (Sydney Morning Herald 22 August 1944), while another advocated the inclusion of rights guarantees in the Bill, citing ‘current revelations concerning the scandalous misuse of censorship of the mails’ (Sydney Morning Herald 1 March 1944). To adopt the language of utilitarianism, the insertion of rights protections into the Constitution was a measure that promised to increase the average welfare of the community, to secure the greatest happiness of the greatest number.
1945–1988: Utilitarianism challenged
In the wake of the Second World War, major developments in international law and politics impacted on the way Australians thought about human rights. With the formation of the United Nations and the adoption of the Universal Declaration of Human Rights, rights were established as an issue of global concern.20 This was affirmed by the drafting of several major international human rights treaties during the next twenty years. In addition to providing a type of legal protection, these instruments gave minority groups around the world a language with which to articulate their grievances. They also reflected the development of an international political culture which, in the words of political commentator Hugh Collins, was uninhibited by Australia’s ‘inherited constraints of utilitarian liberalism’ (Collins 1985: 161).
This external challenge to the dominance of the utilitarian ideology did not have an immediate impact on Australia’s political landscape. Largely due to the sixteen year reign of the Menzies Government, the domestic human rights scene remained stagnant for almost twenty years after the war. Menzies did not consider rights reform a priority. In his view, rights guarantees were unnecessary in a democracy because responsible government was ‘the ultimate guarantee of justice and individual rights’ (Menzies 1967: 54). Menzies’ only initiative related to domestic rights reform was his reluctant establishment of a Joint Committee of Constitutional Review in 1959. Various groups appeared before the Joint Committee to argue for the adoption of an Australian Charter of Rights, but the Committee rejected their arguments and asserted its faith in the capacity of parliamentary democracy to protect individual freedoms.21 This faith was arguably undermined by Menzies himself through his attempt to ban the Communist Party in 1950.
However, Australia could not indefinitely remain isolated from international developments. The language of rights gradually entered mainstream political discourse from the mid-1960s, and Australian movements for equality rights and land rights emerged.22 This occurred at the same time as television beamed pictures into Australian homes of the American civil rights movement, and a progressive US Supreme Court started interpreting the Bill of Rights in a liberal fashion. And while the conservative parties stood firm on human rights, the Labor Party changed its entire approach to the issue as part of a complete overhaul of its platform (Galligan 1990: 352). Labor had traditionally been committed to majoritarian democracy and the centralisation of political power, but this changed in the 1960s with the rise of a new generation of Labor leaders that included Gough Whitlam, Lionel Murphy and Don Dunstan (Galligan 1990: 352–355). Galligan says, ‘Labor policy was progressively overhauled to reflect reformist causes, quality-of-life issues and the concerns of Labor’s increasingly “white collar” and middle-class constituency’ (Galligan 1990: 353). In line with international developments, but also consistent with Labor’s traditional concern for liberal values, Murphy and others oversaw the insertion of a ‘civil liberties’ section into Labor’s platform, and by 1969 the ALP had committed itself to passing human rights legislation and amending the Constitution ‘to provide for the protection of fundamental civil rights and liberties’ (Galligan 1990: 355). This commitment transformed the Bill of Rights question into a party political issue and ensured that, from that point on, it would be debated on a scale comparable to any other major reform proposal.
When the Whitlam Government was elected in 1972, Australia’s utilitarian political culture was coming under increasing pressure to accommodate notions of rights. On 21 November 1973, Attorney-General Lionel Murphy put the ALP’s new platform into practice when he introduced a Bill of Rights into Parliament. It was a statutory Bill of Rights, and in this sense recalled the pragmatism of previous rights proposals. But overall it was an ambitious piece of legislation, consistent with the bold reformist agenda of the Whitlam Government. For the first time, Australians would be given the opportunity to debate a full blown Bill of Rights rather than a small collection of piecemeal rights. It was a new stage in Australian rights debate, and the ‘fresh’ nature of the issue was reflected in the front page headlines that greeted the introduction of the Murphy Bill into Parliament, free of the cynicism which characterised the reporting of subsequent proposals.23
Many opponents of Murphy’s proposal took the position that Australia’s system of parliamentary democracy gave sufficient protection to individual rights.24 In doing so, however, they effectively turned a blind eye to the experiences of a minority of the population who continued to suffer rights abuses. Rights advocates drew attention to the majoritarian nature of Australian democracy. Human rights expert Garth Nettheim, for instance, wrote in an opinion piece that ‘[o]ur political processes, by definition, respond to majorities’ (Australian 5 April 1974: 11). And Lionel Murphy wrote in the Sydney Morning Herald that ‘[t]he common law and our system of responsible government do not stop any Australian Government that feels so inclined discriminating against whomever it pleases, so long as those discriminated against are in a minority or are politically powerless’ (Sydney Morning Herald 22 March 1974: 6). This was significant because it marked the emergence of a critique that rejected the utilitarian assumptions of Australia’s democratic institutions. By nature it was the sort of critique that would always struggle to appeal to a majority of Australians, but as it turned out its message was drowned out in a public debate in which interests superseded ideas, rhetoric trumped reason and political expediency was paramount. It was the sort of debate that Hugh Collins might have referred to a decade later to support his contention that ‘[t]he utilitarian psychology in Australia legitimises the pursuit of interest, while the dominance of the [Benthamite] ideology negates the possibility of a genuine battle of ideas’ (Collins 1985: 155). Discussion of the principles underlying a Bill of Rights was subordinated to exaggeration about practical consequences. Liberal spokespersons, for instance, said that the imprecise language of a Bill of Rights ‘must provoke unimaginable complexity and uncertainty, with a resultant flood of litigation such as this country has never known, and lead to administrative chaos’ (Galligan 1990: 358). Constitutional scholar P H Lane called the Bill ‘flypaper to lawyers’, charging that it would be the legal establishment that benefited most, while the Catholic Church further diverted the debate by accusing the Government of attacking the family, threatening the right to worship and eroding parents’ rights to choose moral and religious education for their children (Australian 25 January 1974: 1). The States asserted their interests by arguing that the Bill would undermine their legislative autonomy; Eric Willis (Lib, MLA, NSW) charged that the Bill’s ‘true and sole objective’ was ‘to assert a Commonwealth domination over the States’.25 In the face of such controversy the Murphy Bill, having not advanced beyond the Second Reading, was quietly abandoned by the Whitlam Government in the lead up to the 1974 federal election. After the election the Bill of Rights issue became less of a priority as the Government found itself embroiled in various crises, and the Bill was not reintroduced (Galligan 1990: 358).
The failure of the Murphy Bill and the election of the conservative Fraser Government effectively buried the Bill of Rights issue for a decade. Academics and journalists occasionally wrote on the topic, but there was never any promise of a new proposal (for example, Thompson 1977). Malcolm Fraser was strongly opposed to a Bill of Rights, and took a similar position to Menzies. On the question of whether Australia should pass legislation to implement the ICCPR, Fraser said in 1979:
Having regard to the existence of such safeguards as the common law, statutory and procedural remedies ... the system of representative and responsible government, the rule of law, the independence of the judiciary and the freedom of the press, Australia is already in substantial conformity with the [ICCPR] (quoted in Charlesworth 1994: 30).
The issue re-emerged as a priority shortly after the election of the Hawke Government in 1983. Announcing the Government’s plans to enact a statutory Bill of Rights, Attorney-General Gareth Evans, who had been involved in the drafting of the 1973 Bill, declared that he wanted to get it right this time around (Age 26 October 1983: 1). Judging from what followed, ‘getting it right’ entailed presenting a rights proposal more suitable to Australia’s political culture. This involved giving the Bill an image of ‘common sense’ — Murphy’s proposal, according to Evans, was ‘just too vague and far-reaching’ (Age 26 October 1983: 1), while his own ideal model would be ‘a shield rather than a sword’ (Age 26 October 1983: 1)26. Evans was clearly anxious to avoid the controversy of the earlier Bill, so much so that he refused to make his model public. In privately circulating his draft Bill to certain individuals, his aim was to seek feedback and keep the Bill secret until after the 1984 federal election. His fear that the rights proposal would become the subject of political expediency demonstrated the utilitarian mindset of Australian politics. This strategy backfired when the Queensland Premier, Sir Joh Bjelke-Petersen, obtained a copy and made it public in the lead-up to the election (Galligan 1990: 360). Predictably, it was exploited: Bjelke-Petersen, for example, called the Evans proposal ‘an audacious attempt to restructure Australian political and social life to meet the demands of a power-hungry Commonwealth Government bent on the destruction of the States and the establishment of a socialist republic’27 (quoted in Canberra Times 24 October 1984). The result was that another attempt to introduce a Bill of Rights came to an abrupt and unsatisfying end. Evans’ Bill of Rights was abandoned and Lionel Bowen replaced Evans as Attorney-General after the election.
When Bowen introduced his own Bill of Rights proposal into Parliament in October 1985 (Australian Human Rights Bill 1985 (Cth)) it possessed little that might have stimulated an ideas driven debate. It also was presented as a ‘shield’ rather than a ‘sword’ (Bowen, HOR 9 October 1985: 1706), but was significantly weaker than the Evans Bill.28 In particular, it did not bind the States. Recalling earlier periods in the Bill of Rights debate when rights were assessed on their capacity to placate interests, this was almost certainly a concession to the Queensland Government, which had come under heavy criticism for its electoral gerrymander and repression of protests. Australian Democrats leader, Don Chipp, called the Bill ‘worthless’ and charged that Bowen had exempted the States in order to avoid a confrontation with Bjelke-Petersen (Senate 19 February 1986: 586). The proposal also drew ire for being minimalist: the Queensland Civil Liberties Union called it ‘a cosmetic exercise’ (Australian Financial Review 14 January 1986: 9), while liberal minded Alan Missen (Lib, Sen, Vic) labelled it a ‘Clayton’s Bill of Rights’ (Senate 14 February 1986: 371). The Government did its best to muster the support of rights advocates, but this only made for confused and contradictory advocacy. In seeking to appeal to very different audiences, the proposal was sometimes referred to as ‘historic’ (Bowen, HOR 9 October 1985: 1706), while at other times it was made to sound simply benign.29
Throughout the debate the ALP struggled to demonstrate to the public the ‘use value’ of a Bill of Rights. As Evans had remarked in a 1973 article, the inadequacy of the existing system was ‘at best a negative argument for the adoption of a bill of rights’ (Evans 1973: 15). Making the positive case was difficult in a society in which most Australians did not feel that their rights were under threat. As the President of the Australian Civil Liberties Union commented: ‘The bill will not benefit the great majority of Australians whose rights are already well protected by the Common Law, our Parliaments, and an independent judiciary’ (Australian Financial Review 17 December 1985: 13). That a Bill of Rights might have been worth supporting because of its association with a certain philosophy of democracy never came through in a public debate that was typically averse to idealised political concepts. Politicians and the public preferred to cling to neat arguments which only served to cloud difficult questions with deceptive simplicity.30 Participants also successfully avoided ideas driven debate by shifting discussion of rights onto familiar terrain; for example, the right to silence was transformed into a law and order debate, while the right to join a trade union was linked to socialism.31 If these things did not seal the fate of Bowen’s Bill of Rights, the conservative parties launched an aggressive campaign filled with doomsday predictions. Alasdair Webster (Lib, MHR, NSW), for instance, said that the passage of the Bowen Bill would ensure ‘Australia is headed for disaster’ (HOR 14 November 1985: 2753), while prominent historian Geoffrey Blainey argued that ‘[t]he Bill of Rights has the potential to overturn many of the principles of Australian life and many of its institutions and practices’ (quoted in Australian 7–8 Jun 1986). Bowen’s proposal also suffered from being discussed at the same time as a bill reforming the Human Rights Commission, and accusations that the Commission would become a ‘Star Chamber’ further damaged the image of the Bill of Rights (quoted in Australian 7–8 June 1986). The degree to which the rhetoric of the conservative parties resonated with the community was reflected in the substantial correspondence received by newspapers and politicians, much of which reproduced their arguments almost verbatim.32
After a lengthy public debate the Government was unable to secure majority support in the Senate, and the Bill was withdrawn on 19 August 1986. In announcing the withdrawal, Evans lamented the poor standard of debate, and declared that the Bill had been ‘the subject of a quite disgraceful campaign of deliberate misrepresentation and deception on the part of the Opposition’ (Senate, 19 August 1986: 16). It was a view shared by many other politicians, including Alan Missen of the Liberal Party, who said he was ‘appalled by the degree of public controversy, misconception and ignorance which the debate has engendered’.33 But neither side of the debate had distinguished itself.
The Hawke Government gave broad based rights reform one more try in 1988. Having lost the stomach for full blown Bills of Rights, the Government proposed the insertion of a small number of rights into the Constitution.34 They were based on the recommendations of an interim report by the Constitutional Commission set up by Bowen in September 1985.35 Their moderate nature conformed with the minimalist trend established by the Evans and Bowen Bills, and their proposal so soon after the failure of these Bills destined them to similar treatment. In fact, the public debate over the rights proposals was essentially a rerun. From the beginning the conservative parties characterised the rights proposals as a ‘mini’ or ‘backdoor’ Bill of Rights, and from then on the debate covered what had by then become familiar ground, with the usual propensity to substitute rhetoric for reasoned debate. The Australian Financial Review recommended a ‘No’ vote for the rights proposals on the basis that the Commission’s process of constitutional review had been reduced into ‘a lowest common denominator exercise of political expediency’ (Australian Financial Review 1 September 1988: 14). It continued: ‘The voter should reject this fourth question in Saturday’s referendum: not on the basis of its circumscribed intentions, but because those aims are so very limited. In this case, half a loaf of a Bill of Rights is not better than nothing.’ The rights proposals also failed to capture the imagination of the public, as evidenced by their resounding defeat at the referendum (Galligan 1990: 363). Prominent rights scholar Hilary Charlesworth called the attempted reforms ‘a hasty and politically clumsy bid to achieve constitutional change during the celebrations of the bicentenary’ (Charlesworth 1994: 25).
In the aftermath, the Constitutional Commission released its final report. It strongly recommended a constitutionally entrenched Bill of Rights, based on the Canadian Charter of Rights and Freedoms, and also recommended the extension to the States of existing rights provisions in the Constitution (Charlesworth 1994: 25). At 1200 pages and with 30 pages of recommendations (Galligan 1990: 363), its size alone was a challenge to continuing minimalism. But considering the failure of three consecutive Bill of Rights proposals and a referendum on rights, its vision of reform hardly seemed ‘practical’. To adopt the words used by Galligan, these failures had revealed ‘an antagonism or indifference to a bill of rights among the general public’ (Galligan 1990: 365). Australia, it seemed, did not have a ‘rights culture’ or, put another way, a political culture congenial to rights (Galligan 1994: 58). It was not long before this aspect of Australian politics started to become conspicuous in comparison to other countries. Canada had adopted its Charter in 1982, New Zealand adopted a Bill of Rights by legislation in 1990, and South Africa and the UK would follow by the end of the decade. But despite these developments and the increasing prominence of the international human rights framework, Australia showed no inclination to join the trend. Galligan surmised in 1990 that the rights failures of 1973–1988 had ‘ensured categorically that there will be no Australian bill of rights’ (Galligan 1990: 364).
1988–2002: New directions
Almost in defiance of Galligan’s prediction, Bills of Rights continued to be an issue in political debate throughout the 1990s, and there were indications that Australia’s political culture was gradually accommodating notions of rights. Despite the absence of a Bill of Rights proposal by a major party, a steady stream of newspaper opinion pieces on the issue continued to be published. With no specific proposal to focus on, these articles usually appeared in the context of public debate over rights related matters, such as the meeting of Australia’s international human rights obligations, constitutional reform, including attempts to become a republic, and specific issues such as mandatory sentencing legislation and the detention of asylum seekers (Sydney Morning Herald 3 June 1993: 12; West Australian 27 July 2000; Canberra Times 25 August 2001). Calls for an Australian Bill of Rights as a remedy for various rights violations became almost commonplace, indicating the extent to which the issue had infiltrated public consciousness. In 1995, for instance, the national teachers union called for a Bill of Rights as part of its campaign to secure quality education for all Australians, while in the same year the NSW Council for Civil Liberties raised the issue in relation to compensation for damage to homes caused by government actions (Sydney Morning Herald 18 January 1995: 6; Age 29 April 1995: 6). In addition, three books were published directly on the topic (Wilcox 1993; Brennan 1998; Williams 2000), and several proposals to introduce a Bill of Rights were made at the State and Territory level.36 Amidst the continual discussion of the issue, the results of a nationwide survey reported overwhelming support for a Bill of Rights, and suggested that it was politicians, rather than the public, who were the main obstacles.37
With rights issues more prominent in domestic politics, it became less feasible to conceptualise contemporary issues within a purely utilitarian framework. Hugh Collins had said as much in 1985, when he remarked that ‘despite its tenacity ... Australia’s dominant ideology has exhausted its capacity to cope with Australia’s most serious political predicaments’ (Collins 1985: 163). A clear demonstration of this occurred in 1992, when the High Court handed down two judgments which touched directly on the adequacy of Australia’s rights protections. The facts of the two cases related to freedom of speech — an issue Australia’s democratic institutions were ill equipped to deal with because it was not legally protected (Nationwide News Pty Ltd v Wills; and Australian Capital Television Pty Ltd v Commonwealth).38 In reaching its decisions in the two cases, the High Court derived from the ‘text and structure’ of the Constitution the existence of a freedom of political communication. The Court also left open the possibility that other ‘implied’ rights existed. The decisions were very controversial, and there was speculation that the decision could lead to the creation of an ‘implied’ Bill of Rights (Age 1 October 1992: 10), and this intensified after a member of the High Court, Justice Toohey, raised the possibility in an extra-curial speech (reported in Australian Financial Review 6 October 1992: 4).39 The debate over whether the Court’s decisions were correct continued into the next decade, but the fact that the Court could not invoke an explicit guarantee of freedom of expression drew attention to the paucity of rights protections in the Constitution. It also neatly demonstrated how the Australia of 1992 was straining to deal with issues and problems for which it had little conceptual framework.
Despite signs of weakness, however, utilitarianism remained a dominant force in political culture, and it continued to have a significant impact on the rights discourse. This was evident in the way that various politicians and interest groups turned the increasing presence of ‘rights’ in mainstream discourse to their advantage by representing their pursuit of interests as claims for rights (Australian Financial Review 1 February 2001: 31). This subsumed the notion of rights into the utilitarian language of interests, and thus weakened all rights claims. The language of interests was also employed by conservative politicians to distract from engagement with the Bill of Rights question. This was most commonly done by dismissing Bills of Rights as a conspiracy by lawyers to make more money; Prime Minister John Howard, for instance, said recently that ‘[a]ll you’ll do is open up yet another avenue for lawyers to make a lot of money being human rights specialists and practitioners’ (quoted in Sydney Morning Herald 26 August 2000: 6).40 Many opponents of Bills of Rights continued to argue that Australia’s system of parliamentary democracy adequately protected rights (Williams D 2002). This created a neat connection with the debates of the 1890s, but seemed increasingly untenable in a contemporary context in which the vulnerability of minority rights was increasingly well documented.41
Be that as it may, the advocacy of Bills of Rights remained confined to a small group of Australians, a large section of whom were lawyers. Despite the survey results, the Bill of Rights issue was not a priority for most Australians.42 In the face of such apathy, advocates continued to demonstrate the weaknesses of parliamentary democracy, but seemed uncertain about how to make a positive argument for a Bill of Rights. The realities of utilitarian politics, however, have continued to shape both tactics and proposals. In a 2002 National Press Club Address, for instance, Australian Human Rights Commissioner Sev Ozdowski argued for the enactment of a Bill of Rights by citing its potential for enhancing economic progress (Ozdowski 2002). Also, leading rights scholar George Williams has advocated an ‘incremental approach’ as ‘a pragmatic and potentially achievable means of bolstering rights protection in Australia’, with the long term aim of cultivating a rights culture (Sydney Morning Herald 28 December 1998: 11).43 Such pragmatism was not universally embraced — journalist Ray Cassin, for instance, acknowledged the shrewdness of Williams’ approach but warned that its modesty might repel advocates of more radical reform (Sunday Age 9 April 2000: 14). Others called for an Australian Bill of Rights to go beyond the protection of traditional civil liberties, and embrace economic, social and cultural rights, as well as indigenous rights.44 As the Bill of Rights Conference of 2002 came to a close, it seemed that rights advocates were again faced with a choice between pragmatism and idealism, a fact that demonstrated the continuing influence of utilitarianism over Australian political life.
Utilitarianism has been a powerful constraint on rights debate in Australia. Although the language of rights has gradually become more prominent in political discourse, particularly in the 1990s, the Bill of Rights question continued to be discussed within the parameters of utilitarian ideology. From the 1890s on, practical questions of utility and interests were the currency of rights discourse. Murphy’s ambitious rights proposal failed to change this, and attempts to work within utilitarian limits resulted in minimalist proposals that compromised on principle for the sake of attracting majority acceptance. Yet widespread acceptance was never attained. Advocates struggled to engage a public that seemed content with a system that, in a pragmatic sense, protected the rights of most Australians most of the time. That this system did not protect the rights of a minority was not considered sufficient reason to alter it.
Internationalism, human rights and changing Australian identities
1890–1945: British and American influences
Prior to 1945, Australia’s sense of national identity was closely associated with Britain. The circumstances surrounding invasion and settlement, such as convict transportation, frontier conditions and physical remoteness, had given Australian character its own distinct symbols and values, but these did not fully displace the British influence (McAllister 1997: 19). Similarly, the framers of the Constitution assumed they would develop Australia’s institutions in line with the Westminster tradition of responsible government. However, given the task of establishing a federal union, the drafters needed to look beyond Britain (Williams G 2002: 30). At the time, the written constitutions of the US, Canada and Switzerland were the obvious comparative models.
Of these, the US Constitution seemed the most relevant to Australian conditions and, as mentioned above, it was Andrew Inglis Clark who most strongly espoused its virtues (Williams G 2002: 31). Clark brought to the task of drafting a constitution a great enthusiasm for American institutions and traditions. In the words of fellow Convention delegate and future Prime Minister, Alfred Deakin, the United States was ‘a country to which in spirit [Clark] belonged, whose Constitution he reverenced, and whose great men he idolised’ (quoted in Patapan 1997: 215). Clark was also a libertarian, and in this respect his thinking was influenced by Thomas Jefferson, as evidenced by this extract from a paper Clark wrote in 1887 called ‘Why I am a Democrat’:45
I am a believer in the reality of the fundamental rights of man, and... I accept the affirmations of the declaration of independence by the people of the United States of America that for strictly political purposes all men must be regarded as equal in the possession of the inalienable rights to life, liberty and the pursuit of happiness (Clark 1995: 201).
Clark’s belief in rights and his passion for America grew after he took his first trip to the United States in 1890, during which he met Oliver Wendell Holmes Jr, who was to influence his thinking in the years ahead (Patapan 1997: 215, n 22). This background helps us understand why Clark included rights protections in his 1891 draft constitution.
However, his absence from all but the first Convention meant that he had limited opportunity to defend the rights provisions.46 Nonetheless, the debate over these provisions took place within a frame of reference established by the American model. In Clark’s absence, Isaac Isaacs was the expert on US constitutional law, and Isaacs employed his knowledge to distinguish Australia from America on the question of rights (La Nauze 1972: 232). For instance, speaking on cl 110 — which was derived from the Fourteenth Amendment — Isaacs argued that the circumstances surrounding the passing of the Fourteenth Amendment related to a desire to secure black citizenship rights in the wake of the Civil War, and that in the absence of comparable circumstances it was not necessary in Australia (Isaacs, Convention Debates 1898: 668). Similarly, South Australian delegate Patrick Glynn sought to distinguish the two countries in relation to the proposed right to jury trial, locating the origins of the American equivalent in a fear that this right was being threatened by the English (Glynn, Convention Debates 1898: 353). The American example was not totally rejected out of hand — Richard O’Connor, for example, relied on a US constitutional text to ascertain the meaning of the term ‘due process of law’ (O’Connor, Convention Debates 1898: 689).47 And it should be remembered that many American style institutions, such as a Senate with equal representation for the States, appeared in the Constitution as finally enacted. However, the question of rights pitted two seemingly incompatible overseas traditions against each other. Whatever the virtues of American style rights protections, most of the framers thought rights were sufficiently protected under the British tradition of responsible government. The first debate over rights, in a sense, was decided by a preference for one external national tradition over another.
United States’ rights experience also formed the yardstick in the 1944 debates over H V Evatt’s rights proposals. In presenting the freedom of speech and freedom of religion proposals to Parliament, Evatt gave detailed surveys of American jurisprudence — to give a guide as to the ‘probable interpretation’ of these rights (HOR 16 March 1944: 1393 and following, 1404–1407). For example, he explained how, despite the terms of the First Amendment being limited to federal law, US courts had gradually, since the adoption of the Fourteenth Amendment, come to apply the freedom of speech guarantee against State law as well (HOR 16 March 1944: 1393). The Sydney Morning Herald took enough notice to publish an editorial on the topic, part of which read, ‘the fact that [rights] have been incorporated in virtually every democratic Constitution drafted in the past 250 years, except those of the Dominions, is evidence at least of the importance which has been attached to them throughout the world in modern times’ (Sydney Morning Herald 24 February 1944: 4). But the relative unimportance of the rights provisions in the overall debate over post-war reconstruction meant that there was no in-depth discussion over the virtues of different overseas approaches. However, anticipating the future direction of the Bill of Rights debate, Evatt’s rights proposals were also inspired by President Roosevelt’s ‘Four Freedoms’, as set out in the Atlantic Charter (HOR 9 March 1944: 1154). Indeed, in an earlier version of the post-war reconstruction Bill, Evatt had included all four freedoms, but removed them after opposition from the States. More than the US experience, it was the international sphere — in which Evatt was to play a key role after the war — that was to have the most impact on Australian rights debates after 1945.
1945–2002: Emergence of a new internationalism
From the horrors of the Second World War emerged a desire among nations to establish conditions for greater international co-operation and the protection of human rights. With the establishment of the UN there was a great euphoria about what a community of nations could achieve in areas such as peace and security and social justice. The adoption of the Universal Declaration of Human Rights in 1948 was a major development, enshrining in an international treaty for the first time the concept of universality — that is, that there were certain human rights standards to which nations should aspire, regardless of cultural, political or economic circumstances. Evatt, who at the time of adoption was President of the General Assembly, greeted the Declaration with the following words:
It is the first occasion on which the organised community of nations has made a Declaration of human rights and fundamental freedoms, and it has the authority of the body of opinion of the United Nations as a whole, and millions of men, women and children all over the world... will turn for help and guidance and inspiration to this document (quoted in Hocking 1997: 185).
As if testing Australia’s commitment to these principles, a major civil liberties issue arose domestically in the form of the Menzies Government’s attempt to ban the Communist Party. This was, perhaps, an early example of what Hilary Charlesworth has called Australia’s ‘split personality’ on rights issues — internationally active but domestically ambivalent (Charlesworth 1995). However, as alluded to above, the global developments could not be turned back at the border, and they were soon influencing the way human rights were conceptualised and discussed within Australia. Critically, the growth of an international human rights framework firmly associated notions of ‘rights’ with things foreign and international. This led to a rift in the Bill of Rights debate between those who saw rights as a ‘foreign import’ (Charlesworth 1995: 138) and those who saw them as reflective of universal values. This rift was emblematic of a wider division in the political culture in respect to nationalism. On the one hand there was the new internationalism, which could be described as an expansive nationalism in the sense that it dictated that Australia’s interests be pursued via greater participation in the global community; and, on the other hand, a protective nationalism, which feared the domestic consequences of international co-operation and continued to think of ‘internationalism’ as being limited to foreign ties with Britain, and also America.
Under Prime Minister Menzies and his Liberal successors, Australia became a signatory to all major human rights treaties, but kept their application wholly removed from domestic politics.48 The Whitlam Government, however, saw the projection of Australia into the international community as a part of nation building, and thus sought to expose Australia to international cultural and economic trends (Frankel 1992: 105). The introduction into Parliament of a Bill of Rights by Attorney-General Lionel Murphy — who, like Evatt, had a vision of an independent, internationalist Australia — was consistent with this. The main concern of the Human Rights Bill 1973 was to implement the International Covenant on Civil and Political Rights, which Australia was yet to ratify (Murphy, Senate 21 November 1973: 1972). In an article in the Sydney Morning Herald, Murphy wrote that the Government
... has taken this action because we believe it is time that the fundamental rights and liberties of the individual, recognised and declared by the community of civilised nations in the Universal Declaration of 1948 and in many subsequent international treaties, were firmly enshrined in our law (Sydney Morning Herald 22 March 1974: 6).
He went on to write that ‘[t]oday human rights are just not the States’ business or even the nation’s business; they are the world’s business’, and that ‘the protection of individual rights within national boundaries is unmistakably a subject of legitimate international concern’. In a speech to the Australian Section of the International Commission of Jurists in December 1973 he praised Evatt’s role in seeing that human rights had assumed ‘an international character’ (quoted in Hocking 1997: 184).
The Whitlam Government’s internationalist approach made sense in the context of Australia’s weakening connection with Britain — post-war immigration had put to rest any pretence that Australia was ‘98 per cent British’, while Britain’s entry into the European Community in 1972 had weakened traditional political and economic ties (McAllister 1997: 3). On the Bill of Rights issue, too, Australia was out of step with most of the world — by January 1973, 108 of 147 independent countries had a Bill of Rights (Einfeld 1987: 187). But for many in Australia, international trends did nothing to make a Bill of Rights seem more attractive. For some, the British example continued to carry the most weight — as with constitutional law scholar P H Lane, who began an article criticising the Murphy Bill with ‘England has never had a Bill of Rights’ (Melbourne Herald 28 January 1974). The tensions over the desirability of an international outlook also gained expression in a constitutional issue. There was no certainty that the Commonwealth had the power to enact the Human Rights Bill — Murphy proposed to rely on a broad view of the Constitution’s ‘external affairs’ power (s 51(xxix)) that authorised the Commonwealth to make laws based on international treaties.49 This interpretation was later endorsed by the High Court (Koowarta v Bjelke-Petersen; and Commonwealth v Tasmania (Tasmanian Dam case)),50 but in 1973–74 it came under criticism, notably from Menzies. In one of three articles on the Murphy Bill in March 1974, Menzies expressed his concern about the potential expansion of Commonwealth power; in his view, the external affairs power could all too easily become ‘a power over “internal affairs’’’, thus disturbing the federal balance. He wrote: ‘To my mind, this matter is potentially the most important threat in the whole Constitution and the whole of our constitutional federal system and to the integrity and powers of the State Parliaments’ (Sydney Morning Herald 15 March 1974: 6). On the one hand, then, Murphy sought to project Australia as a nation into the global community, while on the other, Menzies wished to maintain Australia’s existing institutions.
Debate over the Murphy Bill was cut short due to its abandonment, so the conflicting positions of Murphy and Menzies were not greatly elaborated upon in public debate. With the election of a Fraser Government opposed to a Bill of Rights, and the failure of Gareth Evans’ Bill of Rights to get off the ground, it wasn’t until Lionel Bowen proposed his Bill of Rights in 1985 that these competing notions of identity were able to play themselves out in a human rights context. With the aid of conservative parties who sought to gain political mileage from opposing the legislation, the Bowen Bill served as a lightning rod for anxieties over Australia’s changing identity. By the mid-1980s, Australia’s national identity was being influenced by forces with which not all Australians were comfortable. Not only had British ties been weakened, but ‘multiculturalism’ was an established government policy, indigenous Australians had begun to claim land rights, and Australia was increasingly being impacted upon by global economic forces. In the face of these irreversible trends over which people felt powerless, it was only natural that meaning and identity structures would become more fragmented (Frankel 1992: 275). This fragmentation placed a huge roadblock in front of the Hawke Government’s efforts to legislate for a Bill of Rights.
Like the Human Rights Bill 1973, Lionel Bowen’s Bill of Rights legislation was based on the ICCPR and was intended to be enacted under the external affairs power.51 The Bill’s international element was expressed in its objects clause:
(a) to promote universal respect for, and observance of, human rights and fundamental freedoms for all persons without discrimination;
(b) to that end, to give effect to certain provisions of the International Covenant on Civil and Political Rights by enacting an Australian Bill of Rights.
(Australian Bill of Rights Bill 1985 (Cth), s 3)
The international genesis of the Bill was brought out further in the Second Reading speech, in which Bowen emphasised Australia’s obligation under the ICCPR to implement its measures through domestic legislation, adding that the establishment of the UN and the Universal Declaration of Human Rights was the ‘starting point’ for an Australian Bill of Rights (HOR 9 October 1985: 1706–1707). Some of Bowen’s Labor colleagues also stressed the importance of enacting a Bill of Rights as a means of honouring international obligations, with Robert Tickner stating, ‘I believe that the first argument in support of a Bill of Rights will be that we will thereby honour Australia’s international obligations’ (HOR 14 November 1985: 2772).52
While the Labor Government professed the virtue of meeting international obligations, many Australians reacted unfavourably to what they perceived as unwelcome foreign interference. In their view, there could be no marrying of the international and domestic spheres; as a letter to the Australian Financial Review succinctly put it: ‘[The Bill’s] concept is international and not Australian’ (Australian Financial Review 21 January 1986: 13). Brian Archer (Lib, Sen, Tas) told the Senate that ‘[w]e are obviously under a manoeuvre to become more internationalised as we go on’ (Senate 18 February 1986: 554). Fergus McArthur (Lib, MHR, Vic) asked: ‘Why should we be devising laws which dictate the way in which we think and act, based on some questionable international standard? Is this Government not capable of any original thought which would work to improve the lot of Australians?’ (HOR 14 November 1985: 2843). Originality of thought was not the only alleged casualty — in David MacGibbon’s (Lib, Sen, Qld) view, sovereignty was another: ‘...such conventions debase Australia’s essential sovereignty and every time we supinely sign some international treaty of a social or political nature we diminish our own authority in this Parliament and diminish the respect which Australians have for us’ (Senate 17 February 1986: 451).
These statements implicitly rejected any notion that Australia was a contributing member of the international community. The fact that the standards set out in the ICCPR and several other treaties had been negotiated by most nations in the world, with the active participation of Australia, was of little importance. Indeed, the UN was represented as an isolated and corrupt institution of no benefit or significance to Australia. Christopher Miles (Lib, MHR, Tas) thought it ‘an organisation heavy with bureaucracy and is a mouthpiece of anti-Western ideologies’ (HOR 14 November 1985: 2763), while Peter Durack (Lib, Sen, WA) said that the UN was ‘largely composed of dictatorships of the Right or Left and ... some of them are of a fairly murderous disposition’ (Senate 14 February 1986: 354).
Building on the association of human rights with things foreign, the coalition parties effectively linked rights with socialism. The basis of this connection was the fact that the Warsaw Pact countries were members of the UN, as well as the absence of a ‘right to property’ in the proposed Bill of Rights. Noel Hicks (NPA, MHR, NSW) argued that the Bowen Bill ‘would place the whole Australian governmental system firmly within the context of international law, thus completing the Socialist International objective echoed in the Government’s platform, for the new international economic order and world government’ (HOR 14 November 1985: 2757). Sir John Carrick (Lib, Sen, NSW) thought that, at best, a Bill of Rights based on the ICCPR ‘could only try to encompass narrowly those freedoms that socialist and communist governments allow to be included in a corral’ (Senate 18 February 1986: 570). These sentiments resonated with many in the Australian community, as demonstrated by the large amount of correspondence on the topic received by both newspapers and politicians.53 One letter to Senator Brownhill envisaged an especially bleak scenario: ‘The Australian Bill of Rights seems to be the machinery being set up to control us while we are being made into a Socialist Republic and then taken into a World Government ... This Bill of Rights must be defeated if we are not to live in fear and insecurity’ (quoted by Brownhill, Senate 17 February 1986: 470). The public’s willingness to associate rights and international institutions with socialism was in part a product of the continuing Cold War. But it was also a hangover from a time when having a global outlook was related to Soviet ‘socialist internationalism’ (Frankel 1992: 244).
However, this was not the only way in which old beliefs and values were revived in connection with the Bowen Bill. Irrespective of perceived links with socialism, many Australians saw internationalism as a threat, and hostility towards human rights was a convenient way of expressing this anxiety. This helps to explain why the 1985–86 debates were interspersed with assertions of national identity. Anticipating the terminology that would be used in a similar context more than a decade later, Peter Slipper (NPA, MHR, Qld) called the Bill of Rights ‘an un-Australian piece of legislation’ (HOR 14 November 1985: 2851). Bryan Conquest (NPA, MHR, Qld) suggested that ‘[t]here are inherent dangers in this legislation which cannot and must not be ignored if we in Australia are to ensure the continuance of our way of life’ (HOR 14 November 1985: 2851). These and other statements were made without elaboration, as if what was ‘Australian’ was unmistakable and incontestable. For Peter McGauran (NPA, MHR, Vic), advocacy of a Bill of Rights was unpatriotic. The desire to improve upon Australia’s democracy was ‘no reason for a lack of pride in Australia and in the development of our values, traditions and ... our institutions’, and the rights contained in the Bowen Bill of Rights were ‘an insult to any Australian who loves his country’ (HOR 14 November 1985: 2827–2828).54 According to the Brunswick Sentinel, the proposed Bill of Rights was an insult to the memories of Australian soldiers: ‘The Australian people have fought two world wars and have been involved in others to preserve the freedoms we hold sacred. Now these freedoms are under threat from the Federal Government, the very body entrusted with their protection.’55
In themselves, these assertions of ‘Australianness’ in the face of rights legislation seem incongruous, but make sense in the context of the shifting nature of Australian identity. The insights of political–economic commentator Boris Frankel, recorded in his 1992 book, shed more light on this:
Many conservatives fear the instability and dissolution of ‘Australian’ values that global free marketeers, feminists and mulitculturalists seem to aim for. Not surprisingly, they nostalgically long for the revival of ‘decent’, stable, middle-class and patriarchal working-class families and suburban life (Frankel 1992: 247).
Global commerce, gender equality and multiculturalism inevitably made some Australians feel like their culture had been taken away from them. Human rights legislation, of course, did not possess the same potential to transform Australian society, but like economic globalisation and multiculturalism it represented ‘foreignness’, and it was an easy target. For Australians who had seen their country change so quickly, human rights lacked the inevitability or irreversibility of other external forces, and consequently attracted much of the pent-up anxiety.
While the opposition parties could be criticised for exploiting community fears about international human rights, the Government did little to allay them. Indeed, part of the reason for the failure of the Bowen Bill could be put down to the Labor Party’s failure to bridge the rift in how Australians perceived their national identity. As letters to newspapers show, many Australians in the mid-1980s had little understanding of the UN and international human rights treaties, and feared how they might affect Australia. The Government, however, made little attempt to educate the public or explain the benefits of meeting international obligations. Bernard Cooney (ALP, Sen, Vic), for instance, criticised Senator Durack for ‘[saying] that we should ... look at things simply and wholly in terms of Australians and Australians only’, and proclaimed, ‘[i]n my view that is a very selfish and very narrow attitude which is not worthy of Australia as a member of the international community’ (Senate 14 February 1986: 358). Typical of the rebuttals offered by Labor politicians, it contained little to change the minds of those who perceived the international framework as a threat.
In the years following the failure of Bowen’s Bill of Rights, the rate of globalisation accelerated. Bills of Rights continued to be a lightning rod for anxiety as the Australian community remained divided on the question of internationalism. In the early 1990s the Labor Government embraced internationalism. Gareth Evans, then Foreign Minister, espoused the virtues of being ‘a good international citizen’. Like Evatt and Murphy before him, Evans’ conception of internationalism was directly related to the national interest, a point made clear in his 1991 book on Australian foreign relations.56 At about the same time, social critic Donald Horne was calling on Australians to replace their national identity with a civic identity, to be defined in political terms and including a commitment to liberal and democratic processes and tolerance of difference. Horne wrote: ‘We would not be defining ourselves, as British, or as dinkum Aussies. We would be proclaiming ourselves as citizens’ (Horne 1989: 200). However, the views of Australia as expressed by Evans and Horne had little impact on the way rights were debated. If anything, hostility towards international standards and bodies grew after 1986, although their association with socialism was broken — probably as a result of the end of the Cold War.
In 1994 there were calls to ‘halt the signing of international treaties’, and put to a stop the undermining of Australia’s sovereignty (Canberra Times 28 May 1994: 6; Australian 1 June 1994: 10).57 Similar sentiments were expressed a year later in a public debate over whether there should be parliamentary scrutiny of treaties prior to their signing. During this debate, Justice Michael Kirby commented: ‘Behind some of the emotive language lies the expression of serious concern which requires the attention of those who are generally sympathetic to the incoming tide of international human rights law and its influence upon Australia’ (Sydney Morning Herald 18 February 1995: 8). Yet upon its election, the Howard Government showed it was prepared to reap political capital by framing the work of international human rights institutions as foreign interference, as illustrated by the Government’s repeated rejection of critical reports handed down by various UN committees. This came under criticism from several quarters — for example, the Age called the Government’s outright dismissal of the 2000 findings of the UN Human Rights Committee ‘unbefitting to a sophisticated, civilised member of the global community’ (Age 31 July 2000: 12) — but the practice continued to prove popular. The same anxieties that emerged during the debate over the Bowen Bill continued to be given expression, often in the same language. Australian Human Rights Commissioner, Sev Ozdowski, for instance, said in a February 2002 address that he was occasionally told by members of the Australian community ‘that human rights are un-democratic and even un-Australian, because they are imposed on us — in violation of Australian sovereignty — by the United Nations, which in turn is portrayed as an unaccountable world government’ (Ozdowski 2002).
The deep divisions between what might be called ‘protective nationalism’ and ‘expansive nationalism’ have affected the way Bills of Rights are advocated. In this way, nationalism has resembled utilitarianism in its ability to alter the tactics of those seeking to promote Bills of Rights. As early as 1988, the Labor Government framed the work of constitutional reform — which included the insertion of rights into the Constitution — in the language of nationalism, seeking to create a link between its reform agenda and the Bicentenary. Attorney-General Lionel Bowen told Parliament:
[The four Bills] are about the rights of the people of Australia. When the Constitutional Commission was first established, it was always envisaged that 1988 — the year of the Bicentenary — would provide a focus and impetus for the work of revising and improving the Australian Constitution ... The Bicentenary itself has a purpose far beyond, and far more important and far more enduring than, the celebrations and the spectacles, the great projects and monuments throughout Australia. Its larger purpose goes to the heart of our sense of national identity, our national self-understanding and our national unity. It goes to the heart of our nationhood itself (HOR 10 May 1988: 2391).
Another instance of a rights advocate adopting nationalist language arose shortly after Australia’s 1991 signing of the First Optional Protocol to the ICCPR, which gave Australians the right to seek a ruling before the UN Human Rights Committee in the event of an alleged breach of the Covenant. Philip Alston, a human rights lawyer and scholar, commented: ‘This will trigger a new beginning for the bill of rights debate. We can’t leave it to foreigners to determine our standards: we should do it here’ (Age 5 August 1991: 13). Similarly, in the context of public hostility towards UN committee reports, George Williams observed that ‘[m]any Australians are concerned that international standards have an overly large role in what they consider to be domestic debates. Unfortunately, this will continue so long as we have not drafted our own statement of basic rights’ (Sydney Morning Herald 3 April 2000: 17). In a twist on conservative nationalist arguments, rights were being invoked as the key to restoring domestic agency in the face of the threat posed by international institutions. The resort to such arguments indicated that Bill of Rights advocates had little faith that Horne’s civic notion of identity would prove popular. This lack of faith would seem to be confirmed by a 1992 survey, in which Australians were asked about what they thought were the roots of Australian national pride. ‘Sporting achievements’ was the most popular answer; cultural pride was significantly less valued, while the lowest rating was given to institutional pride, which encompassed ‘the way democracy works’ and ‘Australia’s political influence in the world’ (McAllister 1997: 14-15). These answers reflected the widespread literature on national identity which posited notions of identity that marginalised the ‘political’. Notions of rights, it seemed, would have little chance of being incorporated into Australia’s sense of identity.
While attitudes towards the UN and international treaties have played a large part in the Bill of Rights debate since 1945, the Bills of Rights of other countries continued to serve as a reference point for both advocates and opponents. As mentioned above, by 1973 most independent countries had a Bill of Rights, and by the mid-1990s this included Canada, New Zealand and South Africa, all with comparable legal systems. Nonetheless, the US model continued to be what most Australians associated with the term ‘Bill of Rights’. By the mid-1980s advocates were attempting to break this association, pointing out that Canada’s model was more modern, flexible and relevant to conditions in Australia. But the US model’s prominent presence in popular culture ensured that, almost a century after the Convention debates, the American example continued to shape perceptions about how a Bill of Rights would impact on Australian society. This worked to the advantage of opponents, for the US model presented some obvious weaknesses for exploitation, notably ‘the right of the people to keep and bear arms’.58 The UK’s adoption of a statutory Bill of Rights in 1998, however, removed another mainstay of the Bill of Rights debate — the invocation of the British example as an argument for retaining the status quo (Human Rights Act 1998 (UK)). It also sparked warnings from judges and lawyers that Australia was being left behind by the rest of the world. One came from Chief Justice Spigelman of the NSW Supreme Court, who said that the absence of a Bill of Rights meant that much of British and Canadian jurisprudence could become ‘incomprehensible’ within a decade, concluding that ‘[t]he Australian common law tradition is threatened with a degree of intellectual isolation that many would find disturbing’59 (Spigelman 1999). After a century long Bill of Rights debate in which international developments and practices had been so central, it was feared that Australia was becoming disengaged from the rest of the world.
The Bill of Rights debate presents Australians as a people who are not inclined to associate rights with their sense of identity. In the 1890s and in 1944, there was an awareness of the American libertarian tradition, but the Westminster tradition of responsible government was preferred, and there was no suggestion that part of the identity of Australians was founded on notions of individual rights. From 1945 on, the debates indicated that a large number of Australians were more inclined to define themselves in opposition to the international sphere, rather than in accordance with the rights principles associated with that sphere. More than fifty years after the formation of the UN, widespread discomfort with internationalism continued to distance rights from conceptions of Australian identity.
1890–1945: Rights denied
In the decades following the first sitting of the Constitutional Convention in 1891, several groups were excluded from the Australian community according to racial criteria. Since the 1850s there had existed in the Australian consciousness a multi-category structure that drew distinctions between Europeans, non-Europeans and Aborigines (Markus 1979: 240–241, 244). This structure remained in place at least until 1945, as racial determinism guided attitudes and Social Darwinism gave racism a scientific veneer (Markus 1994: 111). By 1888 all colonies had imposed tight restrictions on Chinese immigration, and in the 1890s concern grew about non-European immigration in general (Markus 1994: 111; Yarwood and Knowling 1982: 232–234). The immigration laws were accompanied by everyday acts of discrimination, including violence (Yarwood and Knowling 1982: 230). In relation to the Chinese population, racial theory was bound up with a belief that Chinese people were an economic threat, and a fear of Asian invasion from the north (Thompson 1994: 35–36). The lowest position on the racial hierarchy and the most adverse treatment, however, were reserved for the Aborigines. They were considered by many to be at the lowest stage of human development, and a dying race (Reynolds 1996: 108–130). Their destruction, according to South Australian pioneer J W Bull in 1884, ‘is one of those necessary processes in the course of Providence to bring about the improvement of the human race’ (quoted in Reynolds 1996: 125). Following more than a century of violence and neglect, ‘protectionist’ legislation was adopted in respect to Aborigines by most States and the Commonwealth between 1897 and 1910, empowering authorities to limit their movement, control their marriages and remove their children (Markus 1994: 124–126).
Anticipating the White Australia policy, there was almost universal agreement that the model for the new nation should be based on ‘one people ... without the admixture of races’ (Alfred Deakin, quoted in Grimshaw 1996: 82) — even Andrew Inglis Clark, whom we might consider a progressive, expressed reservations about Chinese immigration.60 Despite the existence of a small group of people who believed in the equality of all races, this attitude was dominant in white society.61 It is unsurprising, then, that most of the framers brought racial ideas to the task of creating a Constitution and, more specifically, to the debates over rights protections. Racial attitudes underpinned the delegates’ discussion of cl 110, which protected a person’s right to equal protection under the law.62 There was widespread concern among delegates that cl 110 would override existing discriminatory legislation in the colonies. In particular, WA had legislation that limited the mining rights of ‘Asiatic or African’ aliens, and Victoria had factory laws that discriminated against Chinese people (Sir John Forrest, Convention Debates 1898: 665).63 Henry Higgins, a future High Court Justice, suggested that cl 110 read: ‘There shall be no discrimination by state laws based on residence or citizenship in another state.’ That terminology would have assured the survival of the Western Australian law, and created a situation where, in Higgins’ words, ‘[t]here is no discrimination there based on residence or citizenship; it is simply based upon colour and race’ (Convention Debates 1898: 1801). Similarly, WA’s Premier, Sir John Forrest, suggested that the word ‘citizen’ in cl 110 be defined in such a way that discrimination against ‘coloured persons’ would still be permitted (Convention Debates 1898: 665–666). This notion that citizenship could be restricted also informed a separate discussion on another proposal, in which delegate John Quick argued for a definition of citizenship that:
... would not open the door to members of those undesirable races, and it would empower the Federal Parliament to exclude from the enjoyment of and participation in the privileges of federal citizenship people of any undesirable race or of undesirable antecedents ... Therefore, it is desirable that the Constitution should define the class of persons for whom these rights and privileges would be gained (Convention Debates 1898: 1752–1753).
As these comments make clear, the framers’ conception of rights did not extend to those persons who were not appropriately placed in the assumed racial hierarchy. Exclusion of some categories of people from the domain of rights was also reflected in the rejection of their input and experience. Indigenous peoples and ethnic minorities were unrepresented at the Conventions, denying them the opportunity to contribute to discussions about their own rights. Indigenous peoples, in fact, were barely mentioned in the Convention debates at all (Irving 1999: 112). The framers further marginalised these groups by refusing to acknowledge the rights abuses to which they had been subjected in the past. In fact, the proposition that rights violations had occurred, or might occur, met with widespread incredulity. South Australian Premier, Charles Kingston, for example, declared it completely unnecessary to include an equal protection clause ‘in order to prevent some high-handed and monstrous action on the part of the states, for which our past history gives no grounds for expectation’ (Convention Debates 1898: 678). For John Cockburn, a South Australian delegate, the mere suggestion that rights might be violated besmirched civilisation:64
Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilisation. People would say — ‘Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice’ (Convention Debates 1898: 688).
For the same reasons that Aborigines and ethnic minorities were considered outside of the rights domain, the framers simply did not conceive of their experiences in rights terms.
Women were also excluded from the rights debate. Like Aborigines and ethnic minorities, they were unrepresented at the Conventions, although some women did participate through lobby groups and other organisations (Irving 1996). Decisions on rights that affected women, however, were left to white men. The discussion at the Conventions over the franchise demonstrated the degree to which women were considered incidental to the debate. At the Adelaide session of the 1897–98 Convention, Frederick Holder, the Treasurer of South Australia, proposed a clause that would have secured the right to vote for men and women at federal elections.65 A woman’s right to vote, however, was considered less important than the legislative autonomy of the States, and the proposal was defeated. Adye Douglas, the President of the Legislative Council of Tasmania, said: ‘I do not see why it should be forced on people who do not want it, simply because South Australia has got it’ (Convention Debates 1898: 725). Women’s suffrage was treated just as seriously by a New South Wales newspaper, which declared:
Pray Lovely Woman, cease to tease
The Candidates with tearful pleas
About your suffrage matter.
Give us a chance, pray, if you please
To Federate the colonies,
Without your endless chatter
(Australian Star 17 February 1897, extracted in Irving 1999: 180).
After Holder altered his proposed clause so that States retained the power to decide who voted in federal elections until the Federal Parliament enacted a uniform franchise, the proposal passed, and became s 41 of the Constitution.66 As such, only women in SA and WA were entitled to vote in federal elections at the time of Federation (Williams G 2002: 44).
The discussion over the franchise reflected the fact that white women were not full members of the egalitarian community. Although racially most could claim membership, they were not equal participants in discussions over their own rights, which in any case were considered subordinate to State interests. The extension of the federal franchise to white women under the 1902 Commonwealth Franchise Act demonstrated that the egalitarian commitment to political equality placed women in a ‘more equal’ position than other Australians.67 However, a new law could not change the attitudes that had created a gender division in the first place, and in the decades to come women continued to be unequal participants in rights debates.
In the time between Federation and the next major discussion on rights protections in 1944, Aborigines and ethnic minorities remained outside the egalitarian community. In 1944 the White Australia policy was well entrenched, the lives of Aborigines continued to be governed by protectionist legislation, and the population was more homogeneous than it had been at the end of the nineteenth century.68 In the interwar years there was some talk of the possibility of assimilating the indigenous population but, according to race historian Andrew Markus, Australians during the interwar period were generally ‘a complacent, insular people, proud of their British heritage, disdainful of other cultures, rejoicing in their status equality’ (Markus 1994: 153). Consistent with these prevailing attitudes, there was no discussion in 1944 of how H V Evatt’s freedom of speech and freedom of religion proposals might benefit racial minorities. As such, the 1944 debates give no indication that the community had come to embrace ‘coloured’ persons for the purposes of rights entitlements. However, the absence of discussion about the impact of constitutional freedoms on these groups probably had much to do with the context in which the rights provisions were debated. As discussed above, the wartime suspension of civil liberties had led to a rare situation in which the majority of Australians appreciated the vulnerability of their basic freedoms to government intervention. In subsequent debates, so-called minority groups would take a more prominent position in rights debates as advocates attempted to outline the benefits of explicit protection of rights for vulnerable minorities. In 1944, however, there was no trigger which might have brought the interests of minority groups under discussion.
1945–1988: Challenges to the boundaries of egalitarianism
In the decades following the Second World War, a number of social and political changes challenged the existing boundaries of egalitarianism. The arrival of large numbers of immigrants made Australia a far more ethnically diverse society.69 It also made increasingly untenable the belief that Australia was a racially homogeneous nation (Thompson 1994: 79–81). Overt racial discrimination against Aborigines by governments had largely been dismantled when the Whitlam Government was elected in 1972 (Markus 1994: 174). Also, in the late 1960s and 1970s, issues of inequality were pushed into the domain of public debate as various groups made their voices heard. Feminists challenged traditional gender roles and campaigned for equal pay, indigenous movements fought for land rights and equal treatment, and gays and lesbians implemented campaigns against social and legal discrimination. These movements underlined the pluralism of Australian society, and confronted head-on their exclusion from the egalitarian community.
In line with these changes, the Bill of Rights proposed by Lionel Murphy in 1973 was the first proposal to be specifically advocated on the basis of its potential value for the protection of the rights of minority groups. In the Second Reading speech, Murphy emphasised those groups whose rights were insecure:
Despite our supposed commitment to freedom, we cannot be self-satisfied about what is happening in Australia. No matter what the law may provide, those who are poor, who are socially disadvantaged, are denied the basic human rights of a full and satisfying life. There are too many in our community who fall into these categories for us to be complacent about the state of liberty in Australia. The aged, the chronically ill, the migrant groups and the Aborigines do not enjoy the full measure of human rights and dignity (Senate 21 November 1973: 1971).
Further to this, Murphy authored a newspaper article in which he wrote of the ‘grave injustices’ that had been perpetrated under Australia’s parliamentary democracy, ‘mainly on those groups in the community who lack the power or the popularity effectively to answer back’ (Sydney Morning Herald 22 March 1974: 6). Under the heading ‘Aborigines’, he wrote: ‘Ask Aborigines, particularly in Queensland, and many women, what equality before the law and the equal protection of the law means to them’ (Sydney Morning Herald 22 March 1974: 6). Despite the ultimate failure of Murphy’s Bill of Rights, he did have some success in getting his message across. Several newspaper articles, and the odd letter to newspapers, picked up on the theme of the improvement a Bill of Rights could bring to a system that arguably did not adequately protect the rights of Aborigines, ethnic minorities and women (National Times 11–16 February 1974; National Times 4–9 March 1974; Australian 5 April 1974: 11; Age 12 February 1974). The Age also ran a cartoon on its front page that depicted one man saying to another: ‘Human Rights! ... Der ... Um ... Does it mean we have to treat wogs as equals?’ (Age 22 November 1973: 1). The rights of women and minorities did not become a huge issue in the debate, but even their limited discussion marked a significant change from earlier rights debates when whole groups had been excluded.
The potential benefits for women and minority groups were also made an issue by Lionel Bowen in the 1985–86 debates over his Bill of Rights, albeit with less obvious passion than Murphy. But while this reaffirmed the notion that the rights domain should be all-inclusive, the debates also served as a reminder that many Australians still wanted restrictions placed on membership of the egalitarian community. As early as 1974, the Anglican Archbishop of Sydney had argued for an amendment to the Murphy Bill that would have jeopardised the rights of Australians to be practising homosexuals (National Times 11–16 February 1974). The rights of homosexuals were an even bigger talking point in debate over the Bowen Bill, with the parliamentary debate recalling the language of exclusion employed by the framers almost one hundred years earlier. Harold Edwards (Lib, MHR, NSW) said the effect of the Bowen Bill of Rights would be ‘to promote and support values, ideologies and lifestyles that are largely unacceptable to the vast majority of Australians’ (HOR 14 November 1985: 2868). Edwards’ penchant for euphemisms was not shared by Brian Harradine (Ind, Sen, Tas), who said in respect of an equality clause: ‘What about a homosexual teacher in a public school? He would be entitled to “general terms of equality” with regard to employment in the Public Service’ (Senate 17 February 1986: 454).70 And, referring to a decision by the Human Rights Commission recommending that homosexual immigrants be permitted to bring their partners into Australia, Donald Cameron (Lib, MHR, Qld) remarked, ‘I reckon there are enough of them born here without importing them’ (HOR 14 November 1985: 2859).
There were indications, too, that other minorities remained subjects of exclusion. As late as 1988, prior to the referendum, leading historian Geoffrey Blainey wrote that ‘Australian citizens who cannot speak English should not be given the privilege to vote’ (Australian 18 May 1988). Less explicit, but equally exclusionary, were the frequent denials of human rights abuses. In debate over the Bowen Bill, for instance, Robert Tickner (ALP, MHR, NSW) was attacked for speculating about what would happen if a State passed a law disqualifying Aborigines from voting; perhaps forgetting that the Commonwealth had done just that in 1902, Peter McGauran (NPA, MHR, Vic) proclaimed, ‘[i]t has not happened in Australia. Tell us the facts, not hypothetical things’ (HOR 14 November 1985: 2772). Conservative politicians indirectly reinforced such denials by declaring their faith in Australia’s parliamentary democracy without addressing the evidence that many Australians, particularly Aborigines, continued to suffer violations of basic rights. Various letters to newspapers expressed an equal lack of concern for these alleged violations: the President of the Australian Civil Liberties Union criticised the Human Rights Commission for being ‘more interested in the rights of tiny minority groups than the rights of ordinary Australians’ (Australian Financial Review 17 December 1985: 13), while another letter charged that the Bowen Bill ‘is heavily loaded in favour of centralised power and the influence of pressure groups to the detriment of the majority of Australians who do not qualify as disadvantaged’ (Australian Financial Review 21 January 1986: 13).
These comments demonstrated that possession of basic political rights, such as the right to vote, or the protection of anti-discrimination legislation,71 did not in itself secure membership of the egalitarian community. Consistent with Australia’s utilitarianism, the explicit exclusion of certain groups was accompanied by both hostility and indifference to the rights of minorities. This could be attributed partly to prejudice,72 but it was also part of a wider backlash during the 1980s against the increasing influence of minorities in political life. Blainey, for instance, wrote about the ‘very small groups who at present are allowed to dictate to the government how we should see our past and our future’ (quoted in Markus 1994: 217). This outlook manifest itself, among other things, in renewed calls for limitations on Asian immigration (Markus 1994: 218–219). It was almost as if pluralism had tried and then exhausted the patience of a certain section of the Australian community, prompting calls for the reconstruction of old barriers.
1988–2002: Continuing tensions between inclusion and exclusion
Tensions only grew in the years ahead, as the concerns of minority groups, and to a lesser extent, women, became a central issue for advocates of Bills of Rights. More and more, the Bill of Rights was invoked as a potential remedy for a whole range of issues that impacted adversely on minority groups, such as mandatory sentencing legislation in Queensland and WA, and the mandatory detention of asylum seekers.73 In a high profile about-face, Malcolm Fraser declared his support for a Bill of Rights in 2000, citing the failure of the common law system to protect Aborigines, discrimination against refugees and attempts to discriminate in the provision of IVF treatment on the grounds of marital status (Age 25 August 2000: 1). The President of the Australian Law Reform Commission, Justice Elizabeth Evatt, suggested in 1993 that a Bill of Rights could help achieve gender equity (Age 12 August 1993: 6). There were also calls for women to play a larger role in the Bill of Rights debate. A former deputy chair of the Victorian Law Reform Commission, for instance, was critical of the under-representation of women at a 1995 rights conference, and remarked that, ‘[i]f [men] think about women at all, it’s as an add-on. They do not see women are intrinsically part of the community’ (Age 18 February 1995: 3). The rights of indigenous peoples also became increasingly intertwined with the Bill of Rights issue in the 1990s. Echoing a similar statement made by Justice Michael Kirby in 1987, Justice Evatt spoke in 1996 of the potential of a Bill of Rights to address violations of the rights of Aborigines (Sun Herald 27 September 1987: 25; Sydney Morning Herald 25 January 1996). Indigenous rights advocate Larissa Behrendt wrote in 2002 that ‘[i]t is easy to say that the system ain’t broke so you don’t need to fix it if it has always worked for you’, and declared that her interest in the idea of a Bill of Rights was sparked after the Howard Government overrode the Racial Discrimination Act as part of its Native Title Act amendments (Canberra Times 19 July 2002). There were also calls for an Australian Bill to contain ‘special’ indigenous rights — that is, the particular rights which indigenous peoples possess by virtue of their dispossession and distinct status as the first peoples of Australia (Pritchard 1999: 6). Among those who gave support to such a move were Aboriginal leaders Michael Dodson, Lowitja O’Donoghue and Geoff Clark (Age 17 February 1995: 3; Sydney Morning Herald 20 February 1996: 6; Illawarra Mercury 10 August 2000: 6). A major Queensland Commission recommended their inclusion in a State Bill of Rights (EARC 1993: 371–372), and the 2000 Aboriginal and Torres Strait Islander Social Justice Commissioner, Bill Jonas, expressed interest in the idea.74
Concerns advocated by minority groups and women represented a challenge to Australia’s egalitarianism on two levels. First, they implied that all Australians were not treated equally under the law. This challenge was met by a greater propensity among Bill of Rights opponents to call into question the legitimacy of minority concerns. For example, in a 1994 article Padraic McGuinness used the US Bill of Rights as a comparative model, and wrote of the American experience, ‘there is now a small industry devoted to inventing different schemes for the representation of minority rights in legislatures to give minorities greater power’ (Age 26 October 1994: 14). A year later, McGuinness argued that a Bill of Rights ‘rapidly becomes a kind of charter for all the advocates of anti-discrimination law, as if discrimination is not in itself a liberty that should be granted to individuals if not the government’ (Age 1 November 1995: 14). That these views were not isolated was borne out by the response to the second level of challenge to egalitarianism — the implication in the claims for ‘special’ rights that unequal treatment was necessary in order to achieve equality of result. That this struck a discordant note in the Australian community was demonstrated by a 2000 study conducted for the Council for Aboriginal Reconciliation.75 It found that as many as 58 per cent of Australians were opposed to indigenous peoples having ‘special’ rights, with 35 per cent in favour (Newspoll 2000: 4.6). Ninety-two per cent of respondents thought that all Australians should have equal rights and opportunities (Newspoll 2000: 4.2). One of the reports prepared for the Council suggested that ‘people see the treatment of Aborigines as offending against the egalitarian ethic’ (Saulwick and Muller 2000: 9). The survey was conducted at a time when indigenous rights, and even indigenous concerns in general, were under attack from the reactionary One Nation Party.76 However, even more significant was the willingness of the Coalition Government to frame indigenous rights as illegitimate. In just one example of an attitude that touched many areas of public policy, Prime Minister John Howard suggested that proposed amendments to the Native Title Act contradicted ‘a very sacred principle — that is, the equality of all Australians before the law’ (quoted in Sydney Morning Herald 10 April 1998: 1).77 The fact that a mainstream political party was prepared to take such a negative position in respect to indigenous rights reflected the widespread opposition to the concept amongst the Australian public.
The uneasiness with which the assertion of minority rights was greeted in the Bill of Rights debate after 1988 underscored the continued existence of an assumed egalitarian community in Australian political culture. It was no longer defined by racial criteria, although race continued to play a part. Instead, it seemed to be defined in opposition to a shifting conception of the ‘minority’. The composition of the ‘minority’ would change according to the issue under discussion — for example, whether it was gay rights or the rights of refugees — but it would always be defined in opposition to it. This appeared to be connected to Australia’s utilitarianism, as it was the rights claims of minorities that were being called into question, while the rights claimed by the majority were never doubted. In the words of Hilary Charlesworth, there was no ‘sense that something is wrong if minorities and disadvantaged groups within our society have less possibility of having their human rights observed than [do] socially dominant groups’ (Charlesworth 1994: 53). The particularly hostile reaction to assertions of ‘special rights’ was evidence that the ‘majority’ felt threatened by them. It was almost as if, after decades of exclusion, indigenous Australians were creating their own ‘community of egalitarians’ from which the majority was excluded.
Throughout different stages of the Bill of Rights debate, over more than one hundred years, egalitarianism has remained a defining element of Australian political culture. Its influence has been sustained despite its fluid nature, a fact reflected in rights debates. Particularly before 1945, Aborigines, immigrants, homosexuals and women were left out of the rights domain. To varying degrees, they were excluded from participating in the debates, and it was widely assumed that notions of rights did not apply to them. After 1945, rapid social changes broadened conceptions of who belonged to the egalitarian community, and rights debates gradually came to focus on the concerns of those groups that had previously been excluded. In the 1980s and 1990s, this expanded conception of the egalitarian community met with growing criticism, and rights debates reflected a tentative redefinition of this community in opposition to minorities.
When the Bill of Rights issue next arises for discussion at the federal level, the same arguments will undoubtedly be raised by advocates and opponents alike. But as any understanding of the history of this debate makes clear, the fate of any rights proposal is not simply dependent on the strength of an argument. Rather, all participants operate within an entrenched and complex political culture which both sets the boundaries of the discourse and impacts on the development and outcomes of the debate. While it would be a mistake to view any ‘history’ as a mere tutorial to aid future actions, the adoption of an historical perspective will undoubtedly provide frustrated advocates, and determined opponents, with lessons for how to go about influencing the future course of the debate.
Looking back over the past one hundred years or so, it is evident that there have been some remarkable changes in Australian political culture, and today’s political environment would seem infinitely more conducive to rights based appeals that of the 1890s. When the framers sat down to create a Constitution, very few people thought the concerns of indigenous peoples and ethnic minorities were relevant to conceptions of rights. Women were also less than equal participants in the rights domain. Yet, within a century, the concerns of these groups had become central to the operation of Australian politics and, in particular, to debates over rights. During the first half of the twentieth century, the prevailing utilitarian nationalist culture had largely precluded serious consideration of minority interests. However, by the 1970s external developments had infiltrated domestic politics and this utilitarian orthodoxy came under challenge. The increasing prominence of rights issues was in turn connected to Australia becoming more globally engaged and influenced by international economic, political and cultural developments.
Yet other things remain virtually unchanged. Australia still has no Bill of Rights, and the Constitution contains only those very limited guarantees included at its inception. The arguments, too, have changed little. It is also clear that the changes that took place within Australian political culture over the past century did not displace old ideas, attitudes and interests. While there is no longer a racial hierarchy, the egalitarian community is not yet open to everyone, and a substantial section of the public continues to regard rights claims by minority groups as an affront to egalitarianism. In a similar vein, many Australians are uncomfortable with the fast pace with which their nation is engaging with the international community, and the standing of rights has suffered as many perceive them as one element of a wider foreign threat. And utilitarianism continues to wield significant influence, most evident in a persistent majoritarianism and a propensity to reduce policy proposals to practical considerations. These historical constants reflect the complex mixture of tradition and progressive ideas in mainstream political culture.
The obstacles to a Bill of Rights, then, are well entrenched, and further changes in the political culture are likely required before Australia becomes ready to adopt one. At the present time, there is a suspicion about rights in the Australian community. The public will need to be convinced that the international treaties and organisations deserve respect and consideration, and minority rights need to be framed as a bridge to equality rather than an impediment to it. Perhaps the most difficult task facing advocates is that of demonstrating the practical benefits of rights protections to the majority of the population. In the long term, Australians may come to be persuaded by principle based reasons for adopting a policy. In the short to medium term, however, it is likely that rights proposals will continue to be assessed according to a utilitarian calculus. The history of the Bill of Rights debate demonstrates how rapidly a political culture can change in a relatively short time. Advocates may take some comfort in that, especially considering that certain aspects of the existing political culture remain unconducive to broad based rights reform. l
Australian Capital Television Pty Ltd v Commonwealth  HCA 45; (1992) 177 CLR 106
Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Nationwide News Pty Ltd v Wills  HCA 46; (1992) 177 CLR 1
Australian Bill of Rights Bill 1985 (Cth)
Constitution Alteration (Post-war Reconstruction) Bill 1944 (Cth)
Constitution Alteration (War Aims and Reconstruction) Bill 1942 (Cth)
Human Rights Bill 1973 (Cth)
Debates and government publications
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000 [Online] Available: <www.hreoc.gov.au/social_justice/sj_report/chap4.html>
Australian Parliament Report from the Joint Committee on Constitutional Review AGPS, Canberra 1959
Commonwealth of Australia Parliamentary Debates, House of Representatives, Hansard — see notes for specific references
Commonwealth of Australia Parliamentary Debates, Senate, Hansard — see notes for specific references
Electoral and Administrative Review Commission of Queensland (EARC) (1993) Individuals’ Rights & Freedoms: A Bill of Rights and Other Freedoms for Queensland — the Implications for Australia?
Newspoll Market Research (March 2000) Quantitative Research into Issues Relating to a Document of Reconciliation Prepared for the Council for Aboriginal Reconciliation
Official Record of the Debates of the Australasian Federal Convention, vols I–V (Sydney, 1891, Adelaide, Sydney, Melbourne, 1897–1898) (1986) Legal Books, Sydney
Saulwick and Muller (February 2000) Research into Issues Related to a Document of Reconciliation: A Report Prepared for the Council for Aboriginal Reconciliation
Australian Financial Review
Sydney Morning Herald
Books and journal articles
Aitkin D ‘Australian political culture’ (1986) 5 Australian Cultural History at 5–11
Aitkin D Stability and Change in Australian Politics Australian National University Press, Canberra (1982)
Almond G A and Verba S The Civic Culture: Political Attitudes and Democracy in Five Nations Princeton University Press, Princeton 1963
Alston P ‘An Australian Bill of Rights: By design or default?’ in P Alston (ed) Towards an Australian Bill of Rights Centre for International and Public Law ANU, Canberra 1994
Alston P ‘Reform of Treaty-making processes: Form over substance?’ in P Alston and M Chiam (eds) Treaty-making and Australia: Globalisation Versus Sovereignty? Federation Press in association with the Centre for International and Public Law ANU, Leichhardt NSW 1995
Bailey P Human Rights: Australia in an International Context Butterworths, Sydney 1990
Bean C E W The Story of Anzac University of Queensland Press, St Lucia Qld 1981
Bean C ‘Are Australian attitudes to government different?: A comparison with five other nations’ in F G Castles (ed) Australia Compared: People, Policies and Politics Allen & Unwin, Sydney 1991
Bell R ‘Major trends in the study of intergroup relations in multicultural societies’ in R Bell (ed) Multicultural Societies: A Comparative Reader Sable Publishing, Sydney 1987
Blainey G Bill of Rights: Bill of Wrongs? Seminar on the Sociology of Culture, Bundoora Victoria 1986
Bolton G The Oxford History of Australia: Volume 5, 1942–1988 Oxford University Press, Melbourne 1990
Breen P Advance Australia Fair: Reforming the Legal System with a Rights and Responsibilities Code Cape Byron Press, Byron Bay NSW 1999
Brennan F Legislating Liberty Queensland University Press, St Lucia Qld 1998
Cain F and Farrell F ‘Menzies’ war on the Communist Party, 1949–1951’ in A Curthoys and J Merritt (ed) Australia’s First Cold War, 1945–1953 Allen & Unwin, Sydney 1984
Capling A, Considine M and Crozier M Australian Politics in the Global Era Addison Wesley Longman, Melbourne 1998
Carr B ‘The rights trap: How a Bill of Rights could undermine freedom’ (2001) 17(2) Policy at 19–21
Carter D ‘Future pasts’ in D Headon, J Hooton and D Horne (eds) The Abundant Culture: Meaning and Significance in Everyday Australia Allen & Unwin, Sydney 1995
Charlesworth H ‘Australia’s split personality: Implementation of human rights treaty obligations’ in P Alston and M Chiam (eds) Treaty-making and Australia: Globalisation Versus Sovereignty? Federation Press in association with the Centre for International and Public Law ANU, Leichhardt NSW 1995
Charlesworth H ‘The Australian reluctance about rights’ in P Alston (ed) Towards an Australian Bill of Rights Centre for International and Public Law ANU, Canberra 1994
Charlesworth H Writing in Rights: Australia and the Protection of Human Rights UNSW Press, Sydney 2002
Chesterman J and Galligan B (eds) Defining Australian Citizenship: Selected Documents Melbourne University Press, Carlton Victoria 1999
Clark A I ‘Why I am a Democrat’ in M Haward and J Warden (eds) An Australian Democrat: The Life, Work, and Consequences of Andrew Inglis Clark Centre for Tasmanian Studies University of Tasmania, Hobart 1995
Clark A I Studies in Australian Constitutional Law Legal Books, Sydney 1997
Clark M A History of Australia: Volumes V & VI, From 1888 to 1935 Melbourne University Press, Carlton Victoria 1999
Clarke F G Australia: A Concise Political and Social History Oxford University Press, Melbourne 1989
Collins H ‘Political ideas and practices’ in N Meaney (ed) Under New Heavens: Cultural Transmission and the Making of Australia Heinemann Educational, Port Melbourne Victoria 1989
Collins H ‘Political ideology in Australia: The distinctiveness of a Benthamite society’ in S Graubard (ed) Australia: The Daedalus Symposium Angus & Robertson, North Ryde NSW 1985
Connell R W Ruling Class Ruling Culture Cambridge University Press, Cambridge 1977
Crocket P Evatt: A Life Oxford University Press, Melbourne 1993
Davidson A The Communist Party of Australia: A Short History Hoover Institution Press, Stanford 1969
Dixson M The Imaginary Australian: Anglo-Celts and Identity, 1788 to the Present UNSW Press, Sydney 1999
Dixson M The Real Matilda: Woman and Identity in Australia 1788 to the Present Penguin, Ringwood Victoria 1994
Dworkin R Taking Rights Seriously Gerald Duckworth & Co Ltd, London 1977
Einfeld M ‘Murphy and human rights’ in J A Scutt (ed) Lionel Murphy: A Radical Judge McCulloch Publishing in association with the Macmillan Company of Australia, Carlton Victoria 1987
Encel S, MacKenzie N and Tebbutt M Women and Society: An Australian Study Cheshire, Melbourne 1974
Evans G and Grant B Australia’s Foreign Relations: In the World of the 1990s Melbourne University Press, Carlton Victoria 1991
Evans G ‘An Australian Bill of Rights’ (1973) 45(1) Australian Quarterly
Frankel B From the Prophets Deserts Come: The Struggle to Reshape Australian Political Culture Boris Frankel and Arena Publishing, Melbourne 1992
Galligan B and McAllister I ‘Citizen and elite attitudes towards an Australian Bill of Rights’ in B Galligan and C Sampford (eds) Rethinking Human Rights Federation Press, Leichhardt NSW 1997
Galligan B, McAllister I and Ravenhill J (eds) New Developments in Australian Politics Macmillan Education Australia Pty Ltd, South Melbourne 1997
Galligan B ‘Australia’s political culture and institutional design’ in P Alston (ed) Towards an Australian Bill of Rights Centre for International and Public Law ANU, Canberra 1994
Galligan B ‘Australia’s rejection of a Bill of Rights’ (1990) 28(3) The Journal of Commonwealth and Comparative Politics at 344–368
Galligan B and Sampford C (eds) Rethinking Human Rights Federation Press, Leichhardt NSW 1997
Gelber K ‘Treaties and intergovernmental relations in Australia: Political implications of the Toonen case’ (1999) 45(3) Australian Journal of Politics and History at 330-346
Gibbs H ‘Eleventh Wilfred Fullagar Memorial Lecture: The constitutional protection of human rights’ (1982) 9 Monash University Law Review
Greenwood G (ed) Australia: A Social and Political History Angus & Robertson, Sydney 1995
Grimshaw P ‘A white woman’s suffrage’ in H Irving (ed) A Woman’s Constitution?: Gender & History in the Australian Commonwealth Hale & Iremonger, Sydney 1996
Hancock W K Australia Jacaranda Press, Melbourne 1961
Hocking J Lionel Murphy: A Political Biography Cambridge University Press, Cambridge 1997
Horne D Ideas for a Nation Pan Books, Sydney 1989
Irving H ‘Fair federalists and founding mothers’ in H Irving (ed) A Woman’s Constitution?: Gender & History in the Australian Commonwealth Hale & Iremonger, Sydney 1996
Irving H ‘Australian studies and political culture’ (1994) 20 Crossings at 3–7
Irving H To Constitute a Nation: A Cultural History of Australia’s Constitution Cambridge University Press, Melbourne 1999
Kirby M ‘Implications of the internationalisation of human rights law’ in P Alston (ed) Towards an Australian Bill of Rights Centre for International and Public Law ANU, Canberra 1994
La Nauze J A The Making of the Australian Constitution Melbourne University Press, Carlton Victoria 1972
Lacey M J and Haakonssen K (eds) A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law — 1791 and 1991 Cambridge University Press, Cambridge 1992
Markus A Australian Race Relations, 1788–1993 Allen & Unwin, Sydney 1994
Markus A Fear and Hatred: Purifying Australia and California, 1850–1901 Hale & Iremonger, Sydney 1979
McAllister I ‘Political culture and national identity’ in B Galligan, I McAllister and J Ravenhill (eds) New Developments in Australian Politics Macmillan Education Australia Pty Ltd, South Melbourne 1997
McAllister I Political Behaviour Longman Cheshire, Melbourne 1992
McGrath A (ed) Contested Ground: Australian Aborigines under the British Crown Allen & Unwin, Sydney 1995
McRae H, Nettheim G and Beacroft L (eds) Indigenous Legal Issues: Commentary and Materials LBC Information Services, North Ryde NSW 1997
Melleuish G Cultural Liberalism in Australia Cambridge University Press, Oakleigh Victoria 1995
Menzies R Central Power in the Australian Commonwealth Cassell, London 1967
Moore W H The Constitution of the Commonwealth of Australia Murray, London 1902
Neasey J ‘Andrew Inglis Clark Senior and Australian Federation’ (1969) 15 Australian Journal of Politics and History
Ozdowski S ‘Human rights — The challenge for Australia’ National Press Club Address, 6 February 2002 [Online] Available: <www.hreoc.gov.au/speeches/ human_rights/press_club.html>
Patapan H ‘The dead hand of the founders? Original intent and the constitutional protection of rights and freedoms in Australia’ (1997) 25 Federal Law Review at 211–235
Pritchard S ‘The international arena, indigenous internationalism and directions in indigenous policy in Australia’ 4 (1999) Indigenous Law Bulletin
Reynolds H Frontier Allen & Unwin, Sydney 1996
Round T ‘Rights and reasons: Teaching tolerance and rationality’ in B Galligan and C Sampford (eds) Rethinking Human Rights Federation Press, Leichhardt NSW 1997
Sawer G Australian Federal Politics and Law 1929–1949 Melbourne University Press, Parkville Victoria 1963
Smith R Australian Political Culture Pearson Education, Frenchs Forest NSW 2001
Souter G Lion and Kangaroo: The Initiation of Australia Pan Macmillan, Sydney 1976
Spigelman J ‘Access to justice and human rights treaties’ Address to the National Conference of the Australian Plaintiff Lawyers Association, 22 October 1999 [Online] Available: <www.lawlink.nsw.gov.au/sc/sc.nsf/pages/speeches_index>
Stephenson M A and Turner C (eds) Republic or Monarchy?: Legal and Constitutional Issues University of Queensland Press, St Lucia Qld 1994
Tenbensel T ‘International human rights conventions and Australian political debates: issues raised by the “Toonen case”’ (1996) 31(1) Australian Journal of Political Science at 7-23
Thompson E ‘A bit of paper called a Bill of Rights’ in S Encel, D Horne and E Thompson (eds) Change the Rules!: Towards a Democratic Constitution Penguin, Ringwood Victoria 1977
Thompson E ‘Political culture’ in P Bell and R Bell Americanization and Australia UNSW Press, Sydney 1998
Thompson E Fair Enough: Egalitarianism in Australia UNSW Press, Sydney 1994
Thomson A ‘The Anzac Legend: Exploring national myth and memory in Australia’ in R Samuel and P Thompson (eds) The Myths We Live By Routledge, London 1990
Toohey J ‘A government of laws and not of men?’ (1993) 4 Public Law Review
Ward R A Nation for a Continent: The History of Australia, 1901–1975 Heinemann Educational Australia, Richmond Victoria 1997
Ward R The Australian Legend Oxford University Press, Melbourne 1958
Warden J ‘Calculating happiness: Andrew Inglis Clark and Thomas Jefferson in pursuit of the republic’ in M Haward and J Warden (eds) An Australian Democrat: The Life, Work, and Consequences of Andrew Inglis Clark Centre for Tasmanian Studies University of Tasmania, Hobart 1995
White R ‘Inventing Australia Revisited’ in W Hudson and G Bolton (eds) Creating Australia: Changing Australian History Allen & Unwin, Sydney 1997
White R Inventing Australia: Images and Identity 1688–1980 Allen & Unwin, Sydney 1981
Wilcox M An Australian Charter of Rights? Law Book Company, Sydney 1993
Williams D ‘Against constitutional cringe: The protection of human rights in Australia’, Australian Conference on Bill of Rights, 21 June 2002 [Online] Available: <www.gtcentre.unsw.edu.au/Conference-Papers-Bill-of-Rights-2002.html>
Williams G A Bill of Rights for Australia UNSW Press, Sydney 2000
Williams G Human Rights under the Australian Constitution Oxford University Press, South Melbourne 2002
Woodward D, Parkin and Summers J Government, Politics, Power & Policy Addison Wesley Longman, South Melbourne 1997
Yarwood A T and Knowling M J Race Relations in Australia: A History Methuen Australia, North Ryde NSW 1982
Zappala (1998) ‘Clientelism, political culture and ethnic politics in Australia’ (1998) 33(3) Australian Journal of Political Science at 381–397
* Paul Kildea BA (Hons) LLB (UNSW). This article was originally submitted as part of a thesis for the award of Honours in History at UNSW. The author would like to thank Professor Roger Bell for his invaluable assistance and Professor George Williams for his comments and support.
1 ‘Political culture’ is a difficult concept to articulate, but in essence it encompasses ‘the set of shared ideas, assumptions, preferences and customs that are usually taken for granted in a political system but are essential to its operation’ (Galligan 1994: 58).
2 The author does not subscribe to the view that people can be classified according to ‘race’. However, the term is adopted throughout this article because it was part of the language used in the debates. On the concept of ‘race’, see Bell (1987).
3 Clark added this provision at the 1891 Convention, and later replaced it with cl 110 — a stronger provision — prior to the 1898 Convention. Clause 110 read: ‘The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all privileges and immunities of citizens of the Commonwealth in the several states; and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall any state 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.’
4 The clause read: ‘Neither the Commonwealth nor a State may make any law for abridging the freedom of speech or of expression.’
5 This proposal would have extended the application of the existing s 116 to the States.
6 For details on the Bill, see Charlesworth (1994: 32-33) and Galligan (1990: 361).
7 This remains the case today; see Charlesworth (1994: 23–24). Patapan (1997: 214) also categorises the requirement of acquisition of property on just terms (s 51(xxxi)) as a right.
8 Respectively, ss 80, 116 and 117.
9 All but ten sections from Clark’s draft had a recognisable counterpart in the Constitution as enacted (Neasey 1969: 7–8).
10 See boxed text.
11 By parliamentary sovereignty, Dicey meant ‘that Parliament ... has ... the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’ (quoted in Williams 2002: 39).
12 For instance, the rights of working people were advanced by the Factory Acts of 1819, 1833 and 1844. Also, Parliament had softened restrictions on union activity, and started to ensure reasonable sanitation and universal free primary schooling (Galligan 1997: xviii–xix).
13 L F Crisp remarked that ‘[t]he process of constitution-making which so strenuously spanned the 1890s was a matter of resolving controversy after controversy ... by compromise after compromise’ (quoted in Collins 1989: 96). This pragmatic approach was also given expression in a February 1898 newspaper editorial which implored the framers to construct a Constitution that the people would vote for, saying they should bypass attempts at theoretical perfection and ‘content themselves with the more humble aim of endeavouring to bring out the best attainable practical result’ (Sydney Morning Herald 1 February 1898: 4).
14 Seventh Day Adventists kept Saturday holy and worked on Sundays (Patapan 1997: 224).
15 Higgins also said in debate (1898: 654): ‘Some people will think that it is idle at this time of day to pass a law to prevent the prohibition of the establishment of a religion; but it is not idle in the eyes of a number of people whose votes we should like to secure for the Constitution.’
16 Australian Parliament Report of the Royal Commission on the Constitution AGPS, Canberra 1929 p 18; cited in Charlesworth (1994: 24).
17 See, for example, a letter to the Sydney Morning Herald in which a reader expressed apprehension about giving government greater control over employment, saying that it was Evatt’s ‘dream that every parent shall stand in a queue at a grilled window to learn from a Civil servant what calling his son may follow in life’ (Sydney Morning Herald 24 Mar 1944: 3).
18 The clause read: ‘Neither the Commonwealth nor a State may make any law for abridging the freedom of speech or of expression.’
19 This proposal would have extended the application of the existing s 116 to the States.
20 The impact of these and other international developments on the Australian Bill of Rights debate will be explored in the next section.
21 The Committee concluded: ‘[A]s long as governments are democratically elected and there is full Parliamentary responsibility to the electors, the protection of individual liberties will, in practice, be secure in Australia.’ See Australian Parliament, Report from the Joint Committee on Constitutional Review AGPS, Canberra 1959 pp 46–47. For background on the Committee, see Galligan (1990: 350–352).
22 Ann Capling (1998: 147) writes: ‘The notion that a person possessed a set of ‘rights’ above and beyond the general political-cultural context only began to enter Australian political debate from about the late 1960s. And by the time the winds of the global era began to stir in the 1970s, talk of rights and right-speak was becoming a significant part of mainstream political discourse.’
23 See Age 22 Nov 1973, 1. Headlines on page 4 read: ‘Govt outlines historic Bill of Rights’ and ‘Murphy speaks up for freedom’. See also Sydney Morning Herald 22 Nov 1973, 1: ‘Bill protects civil rights’.
24 For example, Menzies (Sydney Morning Herald 14 Mar 1974: 6). See also Age 16 February 1974: ‘The rule of law — or the human rights which are enshrined in our system of common law — have been built up and handed down to us over the years through our courts and is the outstanding way of maintaining for every citizen the right to live in peace and freedom.’
25 Opinion in Regard to the Issue of a ‘Constitutional Bill of Rights’, in Appendix A of Standing Committee D, Report to Executive Council, 1 August 1974, p 49 (quoted in Galligan 1990: 358). Peter Bailey (1990: 52) reports that, on the morning following the introduction of the Bill, ‘the Prime Minister’s office was humming with the reverberations of angry telegrams from almost all the Premiers’.
26 Evans explained that: ‘To the effect that individuals or organisations are affected by legal rules ... in breach of the basic guarantees then they will be able to rely on the Bill of Rights to protect them from a prosecution for a breach of those laws.’ The Bill ‘conferred no right of civil action nor imposed any criminal liability for the infringement of a protected right’ (Charlesworth 1994: 31).
27 See also Durack, Senate 23 October 1984: 2184.
28 For details on the Bill, see Charlesworth (1994: 32–33); and Galligan (1990: 361).
29 Senator Nick Bolkus said: ‘We are not proposing revolution. In fact, when one looks at the historical context of the Bill of Rights, we are proposing a marginal, if any, increase in the protection of rights and liberties of Australian citizens’ (Senate 18 February 1986: 540).
30 For example, conservative politicians and various letters repeatedly used a quotation from a speech by High Court Chief Justice Harry Gibbs: ‘If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it.’ Bailey (1990: 56) later critiqued this quotation, and concluded, ‘it might well be asked whether it is not too neat to be true’.
31 For example, McArthur, HOR 14 November 1985: 2844.
32 See, for example, Petitions introduced into Senate (18 February 1986): 487; Haines (14 February 1986): 360 and following; letter to Australian Financial Review (11 December 1985): 15: ‘Between the stones of the Bill of Rights and superannuation funds ($4,000 million a year) in the hands of trade unions, this one-time lucky country will be ground into a socialist image.’
33 Missen also spoke of the existence of ‘a very carefully organised campaign against the Bill’ (Senate 14 February 1986: 371). Galligan (1990: 361) wrote that ‘[t]he exaggerated and emotive language used to condemn this rather mild piece of legislation was quite extraordinary’.
34 See boxed text.
35 For more on the Commission, see Galligan (1990: 363).
36 For example, Queensland, 1993; ACT, 1994. All failed. A 2001 New South Wales Commission of Inquiry considered the introduction of a Bill of Rights in NSW, but recommended against it. A Bill of Rights proposal is currently being considered by the ACT government.
37 The Australian Rights Project conducted a survey in 1991–92, involving 1505 citizen respondents and 549 elected representatives. Seventy-two per cent of citizen respondents were strongly in favour of a Bill of Rights; 89 per cent of Labor legislators were for a Bill of Rights, compared to 14 per cent of Coalition legislators; 78 per cent of Liberal Party and 69 per cent of National Party legislators were against a Bill of Rights. See Galligan and McAllister (1997).
38 The former case involved a piece of legislation banning speech that brought the Industrial Relations Commission or its members into disrepute: Industrial Relations Act 1988 (Cth), s 299(1)(d)(ii). The latter case involved a law that banned certain forms of political advertising: Broadcasting Act 1942 (Cth), Pt IIID.
39 Justice Toohey suggested that an ‘implied Bill of Rights’ might be constructed if Parliament’s use of its power extended to the invasion of fundamental common law liberties. See also Toohey (1993: 170).
40 See also Australian Financial Review 28 December 1995: 14; Sydney Morning Herald 25 Nov 1999: 18.
41 For more discussion of minority rights in the years 1988–2002, see below.
42 Tom Round (1997) suggested that ‘[m]any citizens like the sound of a bill of rights in the abstract yet dislike concrete instances of its being invoked to “exalt the alienated and persecute the orthodox” — the very instances most likely to arise’.
43 See also Williams (2000).
44 See, for example, Age 20 May 1994: 14.
45 See also Warden (1995, 142–143).
46 Clark did not attend the 1897–98 Convention, apparently due to illness and a visit to the United States (La Nauze 1972: 93).
47 O’Connor cited Baker’s Annotated Notes on the Constitution of the United States.
48 After 1948 a number of major UN human rights treaties were formed, including the Genocide Convention, 1949; the Convention relating to the Status of Refugees, 1951, and its 1967 Protocol; the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD); the International Covenant on Economic, Social and Cultural Rights, 1966; the International Covenant on Civil and Political Rights, 1966 (ICCPR).
49 The Racial Discrimination Act 1975 (Cth), for instance, implemented part of the Convention for the Elimination of all forms of Racial Discrimination.
50 Murphy was a member of the Court in both cases.
51 By this stage Australia had ratified the ICCPR.
52 See also Hand (1985: 2847).
53 Australian Financial Review 11 December 1985: 15; letters quoted by Alan Missen, Senate 14 February 1986: 371–372; Janine Haines, Senate 14 February 1986: 361; Michael Baume, Senate 18 February 1986: 545.
54 Others prefaced their substantive remarks on the Bill of Rights with patriotic declarations. See Senator MacGibbon (Lib, Sen, Qld): ‘I do not believe that in Australia we have to borrow legislation to govern this country. I am very proud to be an Australian’ (Senate 17 February 1986: 452) and Senator Stanley Collard (NPA, Sen, Qld): ‘Australia is a great country’ (Senate 18 February 1986: 544).
55 Editorial, Sentinel, quoted by James Short (Lib, Sen, Vic), Senate 19 February 1986: 576. See also McGauran, who talked of ‘the great rights and values that we in this country hold dear and that we have developed through a process of sacrifice and endeavour over many decades’ (HOR 14 November 1985: 2829).
56 Evans wrote that ‘[a]lthough there may be occasions when taking a principled stand carries costs for us, an international reputation as a good citizen tends to enhance any country’s overall standing in the world, and will at times prove helpful in pursuing other international interests, including commercial ones. Idealism and realism need not be competing objectives in foreign policy, but getting the blend right is never simple’ (Evans and Grant 1991: 35).
57 These calls were in response to the United Nations Human Rights Commission’s decision in Toonen. See Gelber (1999); Tenbensel (1996).
58 See, for example, Sydney Morning Herald 16 March 1974: 8; Carr (2001: 20). In 2002, rights commentator George Williams called for political debate to move beyond its preoccupation with US-style constitutional rights (Australian Financial Review 21 June 2002: 55).
59 See also Sydney Morning Herald 25 November 1999: 18: and comments of Geoffrey Robertson (Sunday Age 22 August 1999: 6) and Justice Malcolm (West Australian 14 November 2000: 10).
60 See Irving (1999: 100, 107). Clark wrote: ‘Both the virtues and the vices of the Chinese are bred in them by a civilization stretching back in unparalleled fixedness of character and detail to an age more remote than any to which the beginnings of any European nation can be traced, and ... no length of residence amidst a population of European descent will cause the Chinese immigrants who remain unnaturalised to change their mode of life’. (Papers on Chinese Immigration, Victoria, Legislative Assembly, 1888, Votes and Proceedings; quoted in Irving 1999: 107).
61 Thompson (1994: 38) writes that those who believed in equality for all races ‘were drowned out at a popular level and had no say in government policies’. See also Reynolds (1996: 83–107); and Markus (1994: 111).
62 For the text of cl 110, see boxed text.
63 See Williams (2002: 41).
64 Barton also made a similar argument, suggesting that the community ought to have ‘advanced’ to such a point as to make encroachment upon religious freedom ‘practically impossible’ (at 1771).
65 This clause read: ‘Every man and woman of the full age of twenty-one years, whose name has been registered as an elector for at least six months, shall be an elector’ (Convention Debates 1897: 715).
66 Section 41 reads: ‘No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.’
67 Under the Act, Aboriginal and ‘alien’ women were not included in the suffrage. Nor were most Aboriginal men. See Grimshaw (1996).
68 In 1891, it is estimated that the population was 87 per cent Anglo-Celtic, 6 per cent north European, 3.4 per cent Aboriginal, 1.9 per cent Asian, and eastern and southern Europeans combined comprised less than 1 per cent. In 1947 this had become: 90 per cent Anglo-Celtic; 6 per cent north European; 2.4 per cent for eastern and southern Europeans combined; 1.1 per cent for Aborigines and Asians combined (Markus 1994: 152).
69 The years 1947–1966 saw the arrival in Australia of 245,000 Italians, 150,000 Greeks, 60,000 Maltese, 80,000 Poles, 60,000 Yugoslavians, 35,000 people from Latvia, Lithuania or Estonia, 26,000 Hungarians and 27,000 Russians (Thompson 1994: 82).
70 Australian Bill of Rights Bill 1985, art 6(c): ‘Every Australian citizen has the right and shall have the opportunity to have access on general terms of equality to public employment.’
71 By 1985, legislation on equal opportunity, race discrimination and sex discrimination had been passed by the Commonwealth and most States.
72 Rosemary Crowley (ALP, Senate, SA) spoke about the educative role of a Bill of Rights, and commented: ‘I think it is important to understand that what we also are dealing with are prejudices and attitudes in society’ (Senate 17 February 1986: 467).
73 Sir Ronald Wilson, former High Court Justice and Human Rights and Equal Opportunity Commissioner, said of mandatory sentencing: ‘These laws are indefensible by reference to any recognised standard. A Bill of rights embodying even just the most fundamental of human rights would have rendered these laws inoperative’ (quoted in West Australian 27 July 2000: 37). See also Canberra Times 25 August 2001: 3.
74 The Aboriginal and Torres Strait Islander Social Justice Commissioner recommended that the Federal Parliament establish a joint parliamentary committee inquiry into an appropriate model for a Bill of Rights, and that the inquiry’s terms of reference include ‘[a]ny specific provisions required in a Bill of Rights to recognise and protect the unique status of indigenous Australians’ (Aboriginal and Torres Strait Islander Social Justice Commissioner 2001).
75 The Council had research conducted into community opinion over the Council’s Draft Document for Reconciliation, and related issues. The subsequent reports, covering both the qualitative and quantitative findings, were released in February and March 2000. The reports were based on a series of fourteen focus group discussions conducted throughout Australia from 7 December 1999 to 13 January 2000, and on 23 depth interviews with leading citizens in high contact areas during the same period: see Saulwick and Muller (2000: 3).
76 In her first speech in Parliament, the future leader of the One Nation Party, Pauline Hanson, spoke of ‘the privileges Aboriginals enjoy over other Australians’ and ‘reverse racism’ (Tingle 1997: 20–21). In 2001, the One Nation Party’s Reconciliation policy declared: ‘Why should an Aboriginal born the same day and time as I, have any more rights to this beautiful country and all it has to offer because of race ... All Australians must have the same opportunities based on an individual need, not race’ (‘Reconciliation’, 28 April 2001, <www.onenation.com.au/policies_reconciliation.htm>.
77 After negotiations over the proposed amendments in mid-1998, Howard proclaimed he had been victorious on the ‘equality’ point: ‘The real gap between the Government and others last April was that the Senate wanted to give Aborigines rights that no other Australians had and that’s what I wasn’t prepared to accept and the compromise that I’ve reached with Brian Harradine means that won’t be the case’ (Australian Financial Review 4 July 1998: 1).