The Australian Constitution is distinguished among those of modern democracies in several ways, but perhaps the most glaring difference is the absence of substantial constitutional protections of human rights. As Blackshield and Williams note:
The framers of the Constitution were mainly concerned with the financial and trade issues arising from Federation and how best to weigh the interests of the small States against those of the more populous states in the new federal Parliament. In these and other areas they adapted provisions from the United States Constitution. However, they did not include a Bill of Rights.1
The Australian Constitution has never had much in the way of rights protections. It is so silent on the matter of constitutional rights that the High Court of Australia has had to read rights into it by interpreting the text as implying a limited number of guaranteed freedoms.2 There are two reasons why the 19th century framers of the Constitution didn’t include a bill of rights or similar instrument: some thought it was unnecessary, and others opposed it on the basis that it could have ended racial discrimination.
The 1890s was the crucial decade in Australia’s progress towards an independent federation. Two key constitutional conventions took place during this time, one in 1891 and the other in 1897–98. At the 1891 Convention, the Tasmanian Attorney-General Andrew Inglis Clark proposed many human rights protections for inclusion in the Australian Constitution. One — his proposed clause 110 — was based on Amendment XIV to the United States Constitution. It would have 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 a state deprive any person of life, liberty, or property without the due process of law, or deny to any person with its jurisdiction the equal protection of its laws.
Surely such a strong guarantee of equality before law, fundamental rights and due process would be accepted by the Convention? Clark’s clause 110 was in fact rejected by the 1897–98 Convention. Former South Australian Premier Dr Alexander Cockburn claimed it would
be a reflection on our civilisation [to include protections from laws that] deprive any person of life, liberty, or property without due process of law … 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.’3
John Gordon of South Australia asked ‘might you not as well say that the states should not legalise murder[?]’ while Sir Edward Braddon from Tasmania suggested that the clause was ‘calculated to do more harm rather than good [and interferes with the] rights of several states.’4
The opposition to including protection of rights thus rested on a belief that no democratically-elected government would infringe basic human rights. It would not be gentlemanly to be oppressive, so it was a ridiculous notion that Australians needed protections from their elected representatives.
Despite future Justice of the High Court Richard O’Connor’s argument that ‘[w]e need not go back far in history to find cases in which the community, seized with a sort of madness with regard to particular offences, have set aside all principles of justice’,5 clause 110 was rejected by 23 votes to 19. The thought that an Australian Parliament would infringe basic rights unless expressly told not to was simply too alien to the framers.
But there was a much more sinister argument against a bill of rights too:
Cockburn argued that the Fourteenth Amendment to the United States Constitution had been inserted ‘to inflict the grossest outrage which could be inflicted on the Southern planters, by saying — “You shall not forbid the negro inhabitants to vote. We insist on their being placed on an equal footing in regard to the exercise of the franchise with yourselves.”’ Cockburn’s position is clear from his focus on the ‘outrage’ committed on the southern American states rather than on any prior abrogation of the rights of black Americans.6
The debate on clause 110 undermined any pretence that the framers were generally concerned to foster human rights or that they viewed responsible government as being appropriate because of its scope to protect minority rights. Their intention was in fact the opposite: to ensure that the Australian Constitution did not prevent the colonies, once they became states, from continuing to enact racially discriminatory legislation.7
Sir John Forrest, Premier of Western Australia, stated at the 1897–98 Convention that
It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still it is so. I do not want … clause  to pass in a shape which would undo what is about to be done [with regard to mining licence restrictions] in most of the colonies , and what has already been done in Western Australia, in regard to that class of person.8
According to another future Justice of the High Court, Henry Higgins, the proposed replacement (which eventually became section 117 of the Australian Constitution) ‘would allow Sir John Forrest … to have his law with regard to Asiatics not being able to obtain miners’ rights in Western Australia. There is no discrimination there based on residence or citizenship; it is simply based on colour and race.’9
It has now been more than a century since the Australian Constitution entered into force at the stroke of midnight on 1 January 1901, establishing Australia as a federation. Denying that this foundational document was framed in such a way as to permit racist policies to continue is to deny history.
This fact, and the fact that Australians’ rights largely depend on the whims of Parliament, should be enough for anyone to agree that Australia needs constitutional reform, and has done for a very long time.
Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, 5th ed, 2010) 125. ↩
See, eg, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner (2010) 243 CLR 1. ↩
Official Record of the Debates of the Australasian Federal Convention, Melbourne, 8 February 1898, 688 (Alexander Cockburn). ↩
Ibid 689 (John Gordon, Edward Braddon). ↩
Ibid (Richard O’Connor). ↩
Blackshield and Williams, above n 1, 127. ↩
George Williams, Human Rights under the Australian Constitution (Oxford University Press, 1999) 41. ↩
Official Record of the Debates of the Australasian Federal Convention, Melbourne, 8 February 1898, 666 (John Forrest). ↩
Official Record of the Debates of the Australasian Federal Convention, Melbourne, 3 March 1898, 1801 (Henry Higgins). ↩