Unlike many Western democracies, Australia does not have a Bill of Rights and attempts to introduce this have met resistance. In its absence, attempts have been made to discover implied Human Rights in the Australian Constitution.
The argument used against having a formal Bill of Rights is that what are considered ‘Rights’ can relate to a particular time and situation. We know the impact of the Second Amendment in the American Bill of Rights:
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That arose in a particular climate follow the War of Independence but is invoked under quite different circumstances. We could imagine if there had been a “Bill of Rights” accompanying the Australian Constitution it might have stated in 1901 that Australia is, and should remain, a white nation. This situation can be avoided as demonstrated by the 2006 Victorian Charter of Human Rights and Responsibilities by maintaining a degree of Parliamentary control.
After looking at why ‘Rights’ play such a small part in our Federal Constitution I am going to explore some of the attempts to discover ‘implied’ rights in the Constitution and some of the reasons for the limited success of these.
This will be in four parts.
1. An exploration of the issue in the development of the Constitution
2. Some key issues where Rights were involved in the first sixty or so years of the Commonwealth.
3. More recent attempts to discover implied Rights
4. Possible ways forward
DEVELOPMENT OF THE CONSTITUTION
When contrasted with the French Declaration of the Rights of Man and Citizen or the American Declaration of Independence, the Australia Constitution is not a particularly inspiring document. As Lowitja O'Donoghue, former ATSIC Chair said about the constitution:
It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here - save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians
In the deliberations leading up to Federation the leaders in the movement studied constitutions around the world. They were well aware of both the American Constitution but also for them the American Civil War, which had only ended thirty years earlier was a recent event. Deakin used the experience of the Civil War to defend a restriction on immigration: he argued that cheap ‘coloured’ labour in Australia could lead to similar consequences of race-based slave labour.
There were other significant differences between the situation in America in 1776 and Australia in 1900. In America, by the time a Union was proposed, some colonies had already existed for 150 years and had developed quite distinct differences. It was the States’ fear of Federal domination that led to what came to be called the American Bill of Rights, the first ten amendments to the Federal Constitution. In Australia on the other hand many of the colonies had only existed for fifty years or less. What united the Australian Colonies – both in their hopes, fears and their prejudices - were far greater than what separated them.
The Constitution’s main focus was on distinguishing what were the powers of the States as opposed to those of the Commonwealth and describing the structures of Federal Parliament and a Federal Court rather than making any bold statements about human rights.
Perhaps another reason why we are more concerned about the issue today than the makers of the constitution wee, is that at the end of the nineteenth century Government fell more lightly on people and people felt that just by being “British” their rights were already guaranteed. In more recent times, Government surveillance, use of the media and management of public opinion have given an increased confidence to whoever happens to hold a majority in the Federal Parliament to prevent the application of human rights. Statute Law made by Parliaments now competes with Common Law made by the courts.
Particular sections of the Constitution continue to have serious effects on public life. When John Howard in August 2004 defined marriage as ‘the union of a man and a women to the exclusion of all others, voluntarily entered into’ he was using the powers granted to the Federal Parliament under Section 51 ‘The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth …” Subsection xxi was “Marriage”
Another section of the Constitution that has been the focus of attention recently is under Section 44 which gives the grounds for disqualification of members
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth
Subsection (iv) in particular applied to many parliamentarians who had dual citizenship, even though such a concept would not have been thought of when the Constitution was written
KEY SECTIONS RELATED TO RIGHTS
Up to seven sections of the Constitution have been invoked in attempts to find ‘Rights’ but I will focus on the three that have been most in the news over the last 20 years or so and in doing so:
(a) Provide some historical background to why they were expressed in the way they were
(b) Look at judgements of the High Court in cases where these sections have been invoked.
Section 117 Rights of residents in States
In trying to define a citizen in the Australian Constitution, consideration was given to the Fourteenth Amendment of the American Constitution, made in 1868 following the abolition of slavery:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
Of course, in the Southern States discrimination against African Americans through manipulation of electoral laws and other processes continued until later amendments in the 1960s and continues in practice today
In Australia the majority opposed introducing anything resembling the American 14th Amendment and their argument was essentially racist. Henry Higgins, generally considered a small ‘l’ liberal, and Sir Isaac Isaacs opposed introducing something similar to the 14th Amendment:
But the Fourteenth Amendment ‘protects Chinamen, too. I suppose, as well as negroes?’ asked Mr Higgins. If so, added Mr Isaacs, Victoria’s discriminatory factory legislation would be void. How, then could the members ‘expect to get for the Constitution the support of the workers?’
Isaac Isaacs emphasised that if Chinese residents were considered citizens, one might have the situation as it was in America where in one case a ‘Chinaman’ had successfully sued for the same right to have a laundry licence as a white man’.
Eventually the only mention of a citizen’s rights is listed in what seems almost seems an afterthought at the end of the Constitution, under the heading “States” The issue was finally resolved by going back to the individual States of the Commonwealth. Whatever rights you had in one State would apply to all States. Section 117 is headed ‘Rights of residents in States’:
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him (sic) if he were a subject of the Queen in such other State.
This did at the time have important consequences. It did mean that women in South Australia and Western Australia who had the right to vote in their own state could also vote in Federal Elections, as did those Indigenous Australians who had a right to vote in their own state. By June 1902 women over the age of 21 had the right to vote and to be elected to Parliament in Federal elections. However, it took two decades before all these rights were present at the State level.
However the powers of States were severely restricted by case of the Amalgamated Society of Engineers v Adelaide Steamship Company Ltd in 1920 where the Court ruled that, because of Powers of the Federal Government under Section 51 (xxxv) which gave the Commonwealth powers over ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’ State workers were bound by the decision of the Commonwealth Court of Conciliation and Arbitration.
Part of the reasoning was that prior to Federation, States existed as colonies of Britain, and only came into existence through Federation and therefore, unless specifically excluded, Federal Law applied. Similar reasoning has been used up to the present and has resulted a general legalistic interpretation of the Constitution with increasing power going to the Federal Government
Section 116 Freedom of Religion
The Constitution seems to have a bet both ways on the position of religious belief. In the preamble it states that “Whereas the people … humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland” but on the other hand Section 116 reads:
The Commonwealth shall not make any law for establishing any religion, or for any imposing any religious observance or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Even though this is under the heading ‘States’ it actually only applies to the Commonwealth. It appears under the heading ‘States’ because the Convention had initially wanted to place this prohibition on the States, but this was seen to be a barrier to States agreeing to Federate. The word ‘States’ was replaced by ‘Commonwealth’, but it remained in the section headed States.
However, the contradiction between the preamble and Section 116 is only an apparent one. In fact, the primary reason for the inclusion of Section 116 was to restrict any negative consequences of the Preamble. The mention of God in the Preamble came about through the pressure of the churches as well the convictions of many members of the Convention. But if God was mentioned in the preamble, could this then be used to impose religious observances or restrict the free exercise of religion?
Henry Higgins thought so:
This recognition of God was not proposed out of reverence; it was proposed for distinct political purposes …
By this, Higgins was implying that people might use the mention of “God” to enforce particular religious beliefs. One group Higgins was concerned about were Seventh Day Adventists:
I understand that they are exceedingly troubled over the fact that putting the words in question in the preamble there may be an attempt to enforce the observance of Sunday upon them, whereas they observe Saturday
In June 2012, Section 116 was invoked as an argument against Prime Minister Howard’s introduction of funding for Chaplains in schools. Robert Williams, a parent of children in a QLD Primary School, on the basis of Section 116 challenged a funding agreement between the Commonwealth Government and the Scripture Union of QLD who provided Chaplaincy services at the school. This argument was unanimously dismissed by the High Court as the court held that link between the Chaplain and the Commonwealth did not make his position ‘an office under the Commonwealth” but instead came under State Law, where in Queensland there was no such prohibition.
However, what the majority of the Court did decide, as a separate issue, was that such funding agreements could not be made by executive power but had to be approved by both Houses of Parliament.
The right to freedom of speech
Although there is no specific mention of freedom of speech in the Australian Constitution some aspects of freedom of speech have been supported by the assumed need for debate as a consequence of having representative government.
The greatest threat to freedom of political debate came in The Communist Party Dissolution Act of 1950. It was the beginning of the Cold War and the Korean War was starting. The Liberal Government under Robert Menzies brought in the Communist Party Dissolution Bill. Under this Bill
· The Australian Communist Party was to be declared an unlawful association and abolished.
· After any liabilities were discharged its assets went to the Commonwealth Government
· The onus of disproving communist affiliation was on the body itself
The last point was the most controversial aspect as it went against the common law principal of innocent until proved guilty. The Government claimed that its sources of information would be prejudiced if it had to prove the illegality by calling witnesses.
The Australian Communist Party, ten unions and several union officials challenged the Constitutional validity on the day it was enacted.
On 9 March 1951, in a majority of six to one, the High court said that the Government could have legislated against subversion, but it was for the courts to determine whether associations or individuals were guilty. The Government could not just declare that a person or organisation was subversive.
Menzies then tried to achieve the same thing by calling a special Premiers Conference to seek reference of powers, but the Labor governments of NSW and QLD refused. Menzies then put it to a referendum, the question being:
Do you approve of the proposed law for the alteration of the Constitution entitled 'Constitution Alteration (Powers to deal with Communists and Communism) 1951'?
This amendment was intended to give Menzies the same powers that he had originally sought. It was lost by the narrowest of margins. Three states - QLD, WA and Tasmania voted ‘Yes”, but New South Wales, Victoria and SA narrowly voted ‘No’ with ‘No’ votes ranging from 51% to 53%. The overall votes were 49.44%’Yes and 50.56% ‘No’.
The issue of freedom of speech came to the High Court again in 1992 when Australian Capital Television argued that they should not be restricted in broadcasting political material in the period immediately prior to an election. The court ruled in their favour, arguing that:
The Constitution provides for a system of responsible government and the right to free political communication as an indispensable part of that system
Despite some claims made at the time, this was far from an affirmation of the right to free speech. In fact, the conservative view of the Constitution is that it is because Australia has a representative system of government, which gave all voters a share in political power, laws to protect rights would, by defining such rights, actually undermine the system of representative government.
The concept of implied rights was further extended in 1994. The West Australian newspaper, The Herald and Weekly Times published an article by Bruce Ruxton, ‘Give Theophanous the shove’, which stated that Theophanous ‘appears to want a bias shown towards Greeks as migrants’. Theophanous sued the Herald & Weekly Times and Ruxton for defamation.
The joint judgment of Mason CJ, Toohey and Gaudron JJ held that such political discussion cannot be attacked by way of a defamation action where the publisher of the speech can establish that:
· it was unaware of the falsity of the material published;
· it did not publish the material recklessly, that is, not caring whether the material was true or false; and
· the publication was reasonable in the circumstances.
However, this decision marked the high point of interpretation and in 1996, in a case questioning the unequal distribution of the numbers of voters between electoral districts in Western Australia, Chief Justice Brennan ruled that the implication of freedom was itself based on an implication from the constitution:
It is logically impermissible to treat 'representative democracy' as though it were contained in the Constitution to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed.
In their decision the Justices were influenced by two things. The first was that while the Constitution does mention Representative Government it does not mention Representative Democracy. The second was that the move to amend the constitution to introduce ‘one vote, one value’ had been rejected twice in May 1974 and September 1988 so electorates could be of differing sizes.
The 1988 Referendum they referred to was introduced in the Bicentenary Year during the Third Hawke Government. Electors were presented with four very significant changes or additions to the Constitution
1. To alter the Constitution to provide for 4-year maximum terms for members of both Houses of the Commonwealth Parliament.
2. To alter the Constitution to provide for fair and democratic parliamentary elections throughout Australia.
3. To alter the Constitution to recognise local government.
4. To alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government.
The referendum turned out to be a dismal failure and, in respect to Point 2 and 4, indicated a general reluctance at the time for the public to support legislating for some form of human rights, although other factors such as the number of issues included and the lack of public education prior to it could also explain its failure.
It had the lowest support for a ‘Yes’ vote in any referendum held so far. Apart from the ACT giving a narrow ‘Yes’ vote to the ‘fair and democratic election provisions’, all the other States voted ‘No’ on all issues with the overall ‘Yes’ vote going from 37% on Fair elections to 32% on freedom of religion.
Possible ways forward
Except for the limits on executive power contained in the Communist Referendum decision and the limited rights for political debate in the Capital Television case the Constitution as it stands offers little protection for Human Rights. Relying on a Referendum to alter the situation, as shown by the failure of the 1988 Referendum, is usually fraught with difficulty unless there is clearly bi-partisan support and a strong education campaign preceding it.
While the Government has the power to act under Section 51 xxix (External Power provisions) as it did in the Franklin Dams decision, it can choose when to enforce International Agreements on Human Rights we have signed up to, and if it does not wish to - as we have seen in recent years in relation to Indigenous and Refugee issues - it cannot be forced to do so.
Individual rights are protected to some extent by the Australian Human Rights Commission (AHRC) but the introduction of the Howard Government’s definition of Marriage showed its limitations. Although the Constitution gave the Federal Government the power to make laws regarding marriage it did not define what marriage was. When the proposal was examined by The AHRC has pointed out a list of entitlements which opposite-sex couples and their families take for granted such as:
· Same-sex couples are not guaranteed the right to take carer’s leave to look after a sick partner.
· Same-sex couples have to spend more money on medical expenses than opposite-sex couples to enjoy the Medicare and PBS Safety Nets.
· Same-sex couples are denied a wide range of tax concessions available to opposite-sex couples
However, the AHRC was forced to accept that the Government had the right under the Constitution to define Marriage and if the issue had gone to the High Court the Constitution’s definition of marriage would have been the one that was taken for granted in 1901.
However, we do increasingly need limits on executive power and especially at the Federal Level. The best way forward in the current climate is for States and Territories to develop their own Charters of Human Rights, as Victoria and the ACT have already done. Once these have been shown to work in practice it could be easier for a confident, reformist Government to use the best aspects of them to create an Australian Bill of Rights
 Lois O'Donoghue in Frank Brennan, Securing Bountiful Place for Aborigines and Torres Strait Islanders in a Modern Free and Tolerant Australia, Constitutional Centenary Foundation, 1994, page 18
 https://www.law.cornell.edu/constitution/amendmentxiv accessed 15/11/2018
 Irving, Helen “To Constitute a Nation; A cultural History of Australia’s Constitution, Cambridge University Press, Cambridge 1999 p 162, quoting from Official Records of the Debates of the Australasian Federal Convention Melbourne 1898 p 687
 Irving ibid
 For all references to the Constitution see https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx
 Commonwealth of Australia Bill, 7 Feb 1898 p 654
 7 Feb 1898 p 656
 High Court of Australia. Decision in the Communist Party Case, Canberra, 1951 http://www.austlii.edu.au/au/cases/cth/HCA/1951/5.html (accessed 13/12/2018)
 Australian Capital television Pty Ltd v Commonwealth (1992) CLR 106
 McGinty (1996) 134 ALR 292-6, quoted in G Williams, Melbourne University Law Review Vol 20 (1966) p 85
 G Williams p 868
 https://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm accessed 13/12/2018