Handshakes and racism

The framers of the Constitution were mainly concerned with the financial and trade issues arising from Federation and how best to weight 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.

— Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, 5th Edition, 2010) 125.

Australia’s Constitution is distinguished among those of modern democracies in several ways. Most obviously, it is one of the few examples of a Westminster Parliament operating within a federal system, modelling its Lower House of Parliament on the British House of Commons and the Upper House on the American Senate.

The drafters of the Constitution made the amendment process so complicated that proposals to amend it are more likely to fail than to pass. The Commonwealth of Australia Constitution Act 1900 (Imp) has been modified only eight times since it came into force in 1901. As a result, they also managed to preserve two great traditions of the British Empire: handshakes and racism.

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 the Constitution by interpreting the text as implying a limited number of guaranteed freedoms. There were two arguments advanced in the late Nineteenth Century for why the Australian Constitution didn’t need a Bill of Rights or similar instrument attached. The first has its roots in the tradition of handshakes.

The 1890s was the crucial decade in Australia’s development towards an independent federation. Two key constitutional conventions occurred during this time, one in 1891 and the other across 1897–98.

At the 1891 Convention, Tasmanian Attorney-General Andrew Inglis Clark proposed many human rights protections for inclusion in the Australian Constitution. One — clause 110 — was based on Section 1 of Amendment XIV of the American Constitution:

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.

You might, at this point, be wondering where this appears in Australia’s Constitution. Surely such a strong guarantee of equality before the law, of protection of rights and of due process would be accepted? Well, don’t try looking for it: Clark’s clause 110 was rejected by the 1897–98 Convention. Why was that the case?

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.'” John Gordon of South Australia said: “might you not as well say that the states should not legalize murder[?]” while Sir Edward Braddon from Tasmania suggested the clause “is calculated to do more harm rather than good [and interferes with the] rights of several states.”

The argument here entirely rests on a belief that no democratically elected Parliament or Executive would infringe basic rights. It would not be gentlemanly to be dictatorial, 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 “We 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,” the clause was rejected by 23 votes to 19. The thought that an Australian Parliament would infringe basic rights unless told not to was simply too alien to the framers.

But there is a much more disappointing and outraging side of the argument against a bill of rights:

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.

— Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, 5th Edition, 2010) 127.

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.

— George Williams, Human Rights under the Australian Constitution (Oxford University Press, 1999), 41.

Sir John Forrest, Premier of Western Australia, stated at the 1897–98 Convention:

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 [110] to pass in a shape which would undo what is about to be done [with regard to mining licences] in most of the colonies, and what has already been done in Western Australia, in regard to that class of persons.

According to future Justice of the High Court, Henry Higgins, the proposed replacement (which became section 117 of the current 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.” These comments can be found in their context on the Parliament of Australia website.

It has now been more than a century since the Australian Constitution entered into force at the stroke of midnight on 1 January 1901, creating Australia as a sovereign, federated nation. Whether we like to admit it or not, the foundational document of this country was, and still is, framed to enshrine racism.

This realisation, and the realisation that our rights hang on the whim of Parliament, should be enough for anyone to agree that Australia needs a bill of rights, and has for a very long time.

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Author: Mozart Olbrycht-Palmer

Pirate Party Australia Deputy Secretary and Press Officer. Former member of the Pirate Parties International Court of Arbitration.