CONSERVATIVE CONSTITUTIONAL RIGHTS IN 1940s AUSTRALIA.

• Date: 01 August 2022
• Author: Lino, Dylan
• Published date: 01 August 2022
• Author: Lino, Dylan

CONTENTS I Introduction II Constitutional Rights from Historical Irrelevance to Wartime Project III Constitutional Rights as Marginal Afterthought in Labor's Postwar Program IV The Liberal-Conservative Origins of the Rights Provisions A The 1942 Constitutional Convention B The 1944 Referendum V The Catholic Origins of the Rights Provisions A The 1942 Constitutional Convention B The 1944 Referendum VI Conclusion I INTRODUCTION

Among progressive Australians, the lament is depressingly well rehearsed: Australia is now the only liberal democracy without a national bill of rights. (1) When the original Constitution was drafted at the end of the 19th century, its liberal and conservative authors preferred to put their faith in the well-worn British traditions of parliamentary sovereignty, responsible government and the common law, as well as a comparatively strong local commitment to representative democracy, as the best guarantees of liberty. (2) They were not, for the most part, enamoured of Parliament-constraining rights provisions enforced by courts. (3) While Australia's foundational scepticism towards protecting rights through judicial review was unremarkable then, it has become exceptional now. Since the Second World War, constitutional rights--by which I mean judicially enforceable guarantees, enshrined in either a constitution or special legislation that protect rights from infringement by legislatures--have spread around the world. (4) Indeed, bills of rights and their like have become a basic marker of political modernity for new and old nation-states alike. (5) But Australia continues to buck this global trend towards juristocracy. (6) In its ongoing refusal to enact national constitutional rights protections--and notwithstanding some important developments in several sub-national jurisdictions and the courts--Australia maintains its comparative 'reluctance about rights'. (7)

The main reason is clear. Even though those on Australia's political left have for decades regularly sought to establish nationwide constitutional constraints on the capacity of Australian legislatures to infringe human rights, all such efforts have been successfully opposed by those on the political right. (8) For individuals and organisations broadly of a left-wing persuasion, including those in the Australian Labor Party ('ALP') and the Greens, securing rights against legislative interference through a bill of rights typically represents one of their grandest ambitions for law reform--the highest institutional embodiment of a progressive, internationalist human rights politics. (9) By contrast, for actors broadly on the right, including those in the Liberal and National parties and socially conservative organisations like the Catholic Church, constitutional rights are generally seen as a dangerous threat to existing legal, political and social institutions. (10) Conservatives are not opposed to human rights per se. Indeed, right-wing mobilisations to uphold certain rights--especially free speech and religious freedom--have been some of the most visible rights campaigns of the past decade. (11) What conservatives widely oppose is a particular means of protecting rights: legal instruments that would empower the courts to supervise the rights-compliance of legislation duly enacted by Parliament. (12)

While decades of debate have established constitutional rights in Australia as a lofty, left-wing aspiration opposed by those on the political right, this article revisits a seminal moment in Australian debates over constitutional rights to unearth their markedly different past. That moment, generally taken by scholars as the beginning of the post-Federation political struggle over constitutional rights, is the Curtin Labor government's abortive endeavour in the early 1940s to create new constitutional protections for free speech and religious freedom. (13) These proposed constitutional rights formed part of a major program of constitutional reform designed to facilitate Labor's social-democratic vision of postwar reconstruction. That constitutional agenda took shape in late 1942 with the government summoning a Constitutional Convention of federal and state political leaders to settle on a reform plan. It concluded in August 1944 with the resounding defeat of the government's reform proposals at a referendum. (14)

Investigating the origins of rights in Labor's constitutional reforms of the early 1940s reveals something striking: they owed at least as much to conservative, liberal and Catholic actors determined to contain the perceived dangers in Labor's expansive postwar program of social democracy as they did to a leftwing politics of human rights. In this article, I show that constitutional rights to freedom of speech and religion as they rose to national prominence in the early 1940s have origins in conservative, liberal and Catholic advocacy (which, for convenience, I collectively describe as conservative). (15) Taken up belatedly and reluctantly by Labor largely in response to conservative pressure, constitutional rights were peripheral to and in tension with a more dominant constitutional project that claimed a much deeper left-wing pedigree. That alternative project envisioned releasing the national government from federalism-based limitations on its capacity to regulate the national economy and to thereby civilise capitalism. (16) For Labor, rights were at best a sideshow and at worst an obstacle to the constitutional main event of substantially expanding the Commonwealth Parliament's power--a reform seen as the means necessary for realising a social-democratic program of economic planning, an expanded welfare state and increased public ownership of industry. (17)

This article provides the first comprehensive account of the neglected conservative, liberal and Catholic mobilisation that led to the emergence of constitutional rights in the Curtin government's proposed constitutional reforms of the early 1940s. The article substantially extends an often-cited, but unexplored, aside made in 1963 by constitutional scholar Geoffrey Sawer, who suggested that the Curtin government's incorporation of the rights provisions 'was in part intended to reassure those who feared the socialist implications of the wider powers'. (18) By uncovering these formative conservative influences on the emergence of the rights guarantees, this article challenges scholarship that puts a nascent progressive human rights politics, personified in the figure of Labor Attorney-General HV Evatt, at the centre of the story. (19) Against scholarship highlighting the rights provisions as the signal feature or even the sole reforms of the 1944 referendum, this article emphasises the belated inclusion and relative marginality of rights within a more far-reaching constitutional agenda of social-democratic governmental empowerment. (20) The article also builds on an emerging historiography of human rights, to date mostly focused on Europe, that has emphasised the central roles played by conservative, neoliberal and Christian actors from the 1930s onwards in the promotion of human rights. (21)

Part II of the article traces the politics of constitutional rights from Federation through to the 1940s. I show how, throughout the early decades of Federation, constitutional rights were mostly irrelevant within Australian constitutional politics. Rather, those politics were dominated by struggles over federalism, which were in turn largely partisan proxy wars about the extent to which the Constitution should confer power on the national government to implement Labor's social-democratic platform. (22) By the early 1940s, however, the ground was laid for a politics of constitutional rights as a result of wartime developments at home and abroad.

In Part III, I demonstrate the peripheral and belated place of constitutional rights within Labor's constitutional reform program of the early 1940s. Rather than seeking to impose new limits on governmental power through constitutional rights, at the centre of the Curtin government's constitutional reforms was a program to greatly enlarge Commonwealth power by doing away with existing constitutional, especially federal, limits. That agenda continued the struggles over federalism and the barriers it posed to social democracy that had typified national constitutional politics since Federation. Despite the undoubted influence of rights-sympathetic Attorney-General Evatt on the shape of the reforms, judicially enforceable guarantees of freedom of speech and religion were entirely absent from the proposals Labor initially publicised in late 1942 in the lead-up to the 1942 Constitutional Convention. Constitutional rights were likewise missing when Labor returned to constitutional reform in late 1943, a move that would result in the 1944 referendum. The emergence of constitutional rights can only be explained by turning to forces outside the Curtin government and, indeed, largely outside the left.

As I show in Part IV, among the most influential forces in the emergence of the constitutional rights provisions were politicians and other actors of liberal and conservative persuasions. Many roundly attacked Labor's proposals to extend postwar social democracy through an expansion of Commonwealth power on the basis that these plans posed a threat to the liberties secured under the existing constitutional order. Some liberals and conservatives went further than this, pressing for the inclusion of new constitutional rights, most notably freedom of speech and the press, to better protect individual freedom from a newly empowered Commonwealth government.

Part V of the article demonstrates that, alongside liberals and conservatives, the other major influence on the emergence of the rights provisions, especially the new constitutional protection for religious freedom, came from Catholic ranks. Influenced by transnational currents in...