Alternative Law Journal
On 5 and 6 February 1998 during argument in Kartinyeri v Commonwealth  HCA 22; (1998) 195 CLR 337 (the Hindmarsh Island case), the federal government sought to persuade the High Court that the Commonwealth has the power to pass laws that discriminate against Australians on the basis of their race. This position was supported by the governments of the Northern Territory, South Australia, and Western Australia. Nearly 100 years after the Constitution had come into force, the proposition was put that, should it so wish, our federal parliament could enact racist laws.
This possibility would be abhorrent to most Australians as well as being inconsistent with accepted community values such as equality under the law. What few people realise, however, is that the framers of the Australian Constitution intended to give the federal parliament exactly this power. Led by Edmund Barton, Australia’s first Prime Minister and a founding member of the High Court, they granted the Commonwealth the power to pass laws under which people could be restricted to ghettos and confined to certain occupations on account of their race. Barton told the Melbourne Convention of 1898 that this power was necessary to enable the Commonwealth to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’. The question before the High Court in the Hindmarsh Island case was whether these intentions still determined the meaning of the power, or whether the scope of the races power had been transformed by the 1967 referendum that had extended it to Aboriginal people. The case showed that less had changed than might have been thought.
The Commonwealth’s races power (not the ‘racist power’ as one newspaper stated) is found in s.51(xxvi) of the Constitution. It permits the federal parliament to pass laws on the topic of ‘the people of any race for whom it is deemed necessary to make special laws’. The federal parliament had used this power to pass the Hindmarsh Island Bridge Act 1997 (Cth) (the Bridge Act). The Act overrode the claim, made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), of a group of Aboriginal women belonging to the Ngarrindjeri people. These women had tried to prevent the building of a bridge in order to protect and preserve land and water in the Hindmarsh Island area in South Australia.
The Ngarrindjeri women took the Commonwealth to the High Court, arguing that the Bridge Act could not be passed under the races power. Their legal team, which included myself, argued that the races power only allows the parliament to pass laws that are for the benefit or advancement of a particular race. Hence, the parliament could pass legislation directed at, for example, providing health care for the specific needs of a racial group. On the other hand, the power could no longer support Nuremberg-style laws banning people of a race from working in certain professions or from attending particular schools.
In response, the Commonwealth asserted that the power enabled it to do exactly that. It argued that there are no limits to the power so long as the law affixes a consequence based on race. In other words, it was not for the High Court to examine the positive or negative impact of the law. On the afternoon of the first day of the hearing, the Federal Solicitor-General, Gavan Griffith QC, suggested that the races power ‘is infected, the power is infused with a power of adverse operation’. He also acknowledged ‘the direct racist content of this provision using ‘racist’ in the expression of carrying with it a capacity for adverse operation’. The following exchange then occurred between the Solicitor-General and the High Court Bench:
JUSTICE KIRBY: Can I just get clear in my mind, is the Commonwealth’s submission that it is entirely and exclusively for the Parliament to determine the matter upon which special laws are deemed necessary or whatever the words say or is there a point at which there is a justiciable question for the Court? I mean, it seems unthinkable that a law such as the Nazi race laws could be enacted under the race power and that this Court could do nothing about it.
MR GRIFFITH: Your Honour, if there was a reason why the Court could do something about it, a Nazi law, it would, in our submission, be for a reason external to the races power. It would be for some wider over-arching reason.
Of course, in the absence of a Bill of Rights or express constitutional protection from racial discrimination, there was no such over-arching reason. When the High Court handed down its decision on 1 April 1998, it was divided. While the Bridge Act was upheld, the Court split on whether the races power could be used to discriminate against indigenous peoples. This fundamental question remains unresolved.
The ambiguous result in the Hindmarsh Island case highlights the unsatisfactory nature of Australia’s legal arrangements and the inadequate protection afforded to the civil liberties of all Australians. The case revealed that since 1901 we have made little progress in entrenching the basic rights of citizenship into Australian law, including protection against being singled out for negative treatment on the basis of a person’s skin colour or ethnic origin. Irrespective of the merits or otherwise of the Bridge Act, this is a cause for grave concern. The Hindmarsh Island case demonstrated very clearly that our fundamental freedoms are often solely dependent on the wisdom and good sense of our legislators. These attributes can too easily be taken for granted, as was shown by the long-standing government policy of forcibly removing indigenous children from their families and communities. This policy was also challenged in the High Court, which held in Kruger v Commonwealth  HCA 27; (1997) 190 CLR 1 (the Stolen Generation case) that there was nothing in the Constitution that prohibited such conduct.
Without legal protection in a Bill of Rights, many of our basic freedoms, possibly even including the right to vote of some sections of the community, can be taken away by Federal, State and Territory parliaments. Any student of Australian history will be aware of the danger that parliaments can pose to civil liberties. After all, one of the first pieces of legislation passed by the new Commonwealth parliament was the Immigration Restriction Act 1901 (Cth). That Act prohibited the immigration into Australia of any person who, when asked by an officer, was unable to ‘write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer’. This was the means by which the White Australia policy was implemented.
Nearly 50 years later, the federal parliament passed the Communist Party Dissolution Act 1950 (Cth), which outlawed the Australian Communist Party, an organisation then participating, with some limited success, in elections at every tier of government. The Act was far out of proportion to the dangers posed by the organisation to Australian society and was a draconian attack on civil liberties, including on the freedoms of speech, belief and association. Section 7 even provided a term of imprisonment of five years for any person who knowingly carried or displayed anything indicating that they were in any way associated with the Party, such as a badge with the words ‘Communist Party Conference 1948’. In addition, under s.9, the Governor- General could declare a person to be a communist or member of the Communist Party. A sanction could be applied not according to a person’s acts but according to his or her beliefs. Once declared, a person could not hold office in the Commonwealth public service or in industries declared by the Governor-General to be vital to the security and defence of Australia. Should a person wish to contest a declaration by the Governor-General, they could do so, but ‘the burden shall be upon him to prove that he is not a person to whom this section applies’. Although the legislation was struck down by the High Court in Australian Communist Party v Commonwealth  HCA 5; (1951) 83 CLR 1, its invalidity arose less from its interference with the civil and political rights of individual citizens than from limitations arising from the breadth of the legislative power on which the legislation was purportedly based. For the purposes of this article, the enactment of the legislation illustrates how parliaments can be unconcerned with civil liberties.
Nor should it be considered that such legislation is the product of a by-gone era. Even today, political agitators can find themselves faced with gaol. In 1996, Albert Langer was imprisoned for 10 weeks for distributing leaflets encouraging voters to put the candidates of the Australian Labor Party and the Coalition equal last. Even though s.240 of the Commonwealth Electoral Act 1918 states that ‘a person shall mark his or her vote’ by numbering every square ‘1, 2, 3, 4 …’, the vote advocated by Langer was an alternative, legally acceptable method of voting. Section 270 provides that a ballot paper ‘shall not be informal’ if it includes a sequence of consecutive numbers beginning with ‘1’, even if numbers are duplicated. Thus, a paper numbered ‘1, 2, 3, 3 …’ would be counted as indicating a preference for candidates ‘1’ and ‘2’. Langer sought to make voters aware of this option, but the Act, in s.329A, made it an offence to ‘print, publish or distribute … any matter or thing with the intention of encouraging persons … to fill in a ballot paper otherwise than in accordance with’ s.240. Langer challenged this section in the High Court, but failed (Langer v Commonwealth  HCA 43; (1996) 186 CLR 302). In a strong dissent, Justice Sir Daryl Dawson described s.329A as ‘a law which is designed to keep from voters information which is required by them to enable them to exercise an informed choice’ (at 325). After the High Court finding, Amnesty International released a statement describing Langer as ‘the first prisoner of conscience in the country for over 20 years’.
Such examples are too easily forgotten, particularly when the victims are outside the mainstream of the Australian community, like indigenous peoples, or people who are easy to fear or hate, such as communists at the height of the Cold War. Moreover, Australians like to think that their basic rights are well protected. Of course, in the main this is correct. We are fortunate that the rule of law is firmly entrenched in our political culture, and that we have an independent High Court where such issues can be aired. Without specific protection of basic freedoms under a Bill of Rights, however, this will only take us so far.
The current lack of protection for fundamental rights in Australia, combined with ignorance of the few rights that we do possess, presents a compelling case for reform. Now is the right time to address these issues. The agenda for structural reform of our constitutional system has been dominated for too long by the symbolic issues raised by a minimalist republic. The republic debate is an important one, but it should not permanently obscure the need for change in other areas. The centenary of Federation in 2001 is a reminder that Australia faces the prospect of entering its second century without yet having set out the rights and responsibilities attaching to Australian citizenship.
The federal parliament, as the body comprising representatives of all Australians, should take the central role in this process. State parliaments must also be involved, and may indeed lead the way. As in Canada and the United States, it would be possible for there to be separate, but complementary, Bills of Rights at the federal and State level. The Standing Committee of Law and Justice of the NSW parliament is currently holding an inquiry into whether NSW should enact a statutory Bill of Rights. If it did, this could provide an model that could be followed in other States and at the federal level.
To date, the role of Australian parliaments in the protection of human rights has not been fully realised. While the federal parliament has enacted important legislation such as the Racial Discrimination Act 1975 (Cth), and its committees, such as the Senate Standing Committee for the Scrutiny of Bills, determine whether Bills trespass unduly on personal rights and liberties, no Act upholds our core rights. Instead, attention has tended to focus on the High Court’s finding that rights can be implied from the Constitution. This should not be surprising. Since 1988, Australian courts, and not parliaments, have taken the lead in protecting human rights under Australian law. But this course cannot be sustained indefinitely, lest undue stress be placed on the structure of government. The separation of powers created by the Constitution between the judicial and legislative branches allows only limited scope for the courts to make new law.
In the 1988 constitutional referendum, the Australian people voted against proposals for the insertion of new rights in the Constitution. In the decade since, the parliamentary process has been largely silent on a Bill of Rights. This vacuum has been filled by the courts, which have responded to developments such as the emergence of Bills of Rights in nations including Canada and New Zealand and the creation of an international Bill of Rights in treaties and conventions. In recent years the High Court has led the way in limiting the legislative power of Australian parliaments by recognising a constitutionally protected freedom of political communication in 1992 in Australian Capital Television Pty Ltd v Commonwealth  HCA 45; (1992) 177 CLR 106, as well as other rights such as a right to procedural fairness in the trial process. Individual judges have even interpreted the Constitution as a document embodying many rights, indeed almost an implied Bill of Rights.
But the Constitution was not drafted to include a Bill of Rights. To interpret it as containing a general scheme of protection for fundamental freedoms would compromise the legitimacy of the High Court as the arbiter of the Constitution. The role of the High Court is to interpret the Constitution as it has been drafted, and to adapt the document to changing times and shifting national needs. The Court would exceed its brief if it were to go beyond those rights expressed by or necessarily implied in the text. This would also compromise the role of the federal parliament as the only body able to initiate, and the Australian people as the only body able to sanction, changes to the text of the Constitution. Amendment of the Constitution is provided for in s.128, which requires a referendum of electors initiated by the federal parliament.
Three things are clear. First, the basic rights and freedoms of Australians are not adequately protected by the law. The lack of an Australian Bill of Rights reflects the views of the framers of the Australian Constitution expressed in the 1890s that basic freedoms were adequately protected by the common law and by our elected representatives. It is likely, nearly 100 years after the Australian Constitution came into force, that a Bill of Rights, either constitutional or statutory, would make a positive contribution to modern Australia. It would enhance Australian democracy by expressing the core rights of the Australian people, such as the right to vote and freedom of expression, as well as promoting a sense of community involvement in these issues. It is significant that nations that had previously relied on the common law tradition, such as Canada, New Zealand, South Africa and the United Kingdom, have recently adopted a Bill of Rights.
Second, any attempt to introduce an Australian Bill of Rights should not be based on judicial innovation. Instead, it should be built on the commitment and participation of the Australian people and their elected representatives. Hence, reform that seeks to bring about a statement of the rights of the Australian people should be facilitated by the federal parliament and not by the courts. This means that, at least initially, any Bill of Rights should be in the form of an Act of parliament. Ironically, although human rights need to be protected against parliamentary action, it must be the parliaments themselves that take the lead in any move to entrench such rights.
Third, the defeats of the 1988 proposals to entrench new rights in the Constitution and of the 1999 referendum on the republic demonstrate that any move to introduce an Australian Bill of Rights should follow a gradual and incremental path. Certain rights should be protected before others, and then in legislation, subject to an override by parliament, before any constitutional entrenchment in the longer term. This approach is a pragmatic means of protecting a limited range of the fundamental rights of the Australian people while allowing the oversight of the federal parliament at every step. It would also enable the judiciary to foster the rights of Australians without vesting misplaced faith in it to solve Australia’s pressing social, moral and political concerns.
[*] George Williams is senior lecturer in law at the Australian National University and also practises as a barrister. This article is modified from his book A Bill of Rights for Australia, which was recently published by the University of NSW Press.
 See Quick, J. and Garran, R., The Annotated Constitution of the Australian Commonwealth, 1901 edn, Legal Books, 1995 at 622. (‘It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.’)
 Official Record of the Debates of the Australasian Federal Convention (1891-1898, reprinted Legal Books 1986), Vol 4, Melbourne 1898, at 228-29.
 Kartinyeri v Commonwealth (transcript, 5 February 1998).
 Immigration Restriction Act 1901 (Cth), s.3. See Potter v Minahan  HCA 63; (1908) 7 CLR 277; R v Wilson; Ex parte Kisch  HCA 63; (1934) 52 CLR 234.
 Amnesty International, ‘Australia: Political Activist Becomes First Prisoner of Conscience for over 20 Years’, Press release, 23 February 1996.
 See Williams, G., Human Rights under the Australian Constitution, Oxford University Press, 1999, Chs 7 and 8.
 Canadian Charter of Rights and Freedoms 1982.
 New Zealand Bill of Rights Act 1990 (NZ).
 See especially International Covenant on Civil and Political Rights 1966 and International Covenant on Economic, Social and Cultural Rights 1966.
 See, for example, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; Nicholas v R  HCA 9; (1998) 193 CLR 173 at 208-209 per Gaudron J (‘a court [could] not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained … a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.’)
 See Williams, G., ‘Lionel Murphy and Democracy and Rights’ in M. Coper, and G. Williams (eds), Justice Lionel Murphy — Influential or Merely Prescient? Federation Press, 1997, p.50.
 South African Constitution, Ch 2.
 Human Rights Act 1998 (UK).