RightsBase

On Human Rights Day this year, the Victorian Equal Opportunity and Human Rights Commission continued its tradition of hosting an oration in Melbourne.  This year's guest speaker was award-winning journalist, author and political and social commentator David Marr and his topic: "Does Australia really give a damn about rights?"

In a delightful coincidence, Federation Square was packed with fans of Oprah Winfrey, waiting in the sun to see the talk-show Queen on tour Downunder.  This captive audience was treated to David Marr's oration transmitted live to the big screen in the Square, nominally for the benefit of people who couldn't get into the packed lecture hall built into the riverbank.

I don't know what the Oprah fans made of it, but I was particularly interested in Marr's relating a watershed moment in Australian history of which few of us are aware:

"Whether we know it or not, all we advocates of constitutional and legal protection of rights in Australia in 2010 are still picking around in the wreckage of one day in the life of the Australasian Federal Convention in February 1898.

Apart from anything, it was staggeringly hot: 40 degrees in the shade. As fires raged through the Grampians and smoke obscured the sun, Australia’s best hopes of a bill of rights were burnt to a crisp.

A bit of history: little fuss had been made at earlier conventions [in opposition to] the idea of incorporating into our constitution the “equal protection of the laws” established in Fourteenth Amendment of the US Constitution after the Civil War. But its enemies, led by Isaac Isaacs [pictured with moustache], were waiting to pounce in Melbourne.

It’s a strange reflection that the leaders of the contest that day – in whose shadows we still work – were both Australian sons of persecuted peoples: Isaacs the brilliant, tedious, dogmatic child of a Polish tailor couldn’t abide the idea proposed.  Richard O’Connor [pictured bearded], the charming son of an Irish [parliamentary] librarian, begged the delegates to put into the Constitution they were drafting:

'A guarantee for all time for the citizens of the Commonwealth that they shall be treated according to what we recognise to be the principles of justice and equality.'

The 42 delegates camped in the Legislative Assembly of the Melbourne parliament growled and sniped for an hour, broke for lunch and came back – clearly in a foul mood – to shred that rights initiative in less then 20 minutes. First went the notion that:

… a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth.

Then hacked down was:

… nor shall a state deprive any person of life, liberty, or property without due process of law.

And finally, by 23 votes to 19, the delegates ditched:

… or deny to any person within its jurisdiction the equal protection of its laws.

According to the great myth that has grown up about the decision, this was the point at which an emerging Australia rejected American ways and stuck to its British guns, turning its back on the allure of constitutional protection of rights in order to stick with the Common Law and responsible government. It has been billed ever since as a nation-making moment.

…[But] read the transcript of that day’s debates, and you find no such high-flown considerations in the air. No hymns were sung to British ways. Not even the most conservative delegate – stand up if you can after a long lunch Sir George Reid – attacked the theory of allowing courts to set limits to the exercise of government power. Defence of states’ rights, yes. Defence of responsible government, no.

This was not a contest in the abstract, but the particular. The delegates did not vote against rights but against these rights. Why? Because, as Isaacs put it so bluntly, their original object in America was “to protect the blacks”, and in Australia they would “protect Chinamen in the same way”. The delegates’ vote was not about preserving British values down under, but the birth of a white man’s Federation.

Sir John Forrest belled that cat during that day’s debate:

'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.'

In fact, as the heat rose and the lunch proved bad, the delegates became less and less inhibited. With the point by point endorsement of Isaacs, John Cockburn of South Australia spoke with the passion of a planter stripped of his slaves as he condemned the proposed guarantees as vindictive abroad and unnecessary at home:

'They were introduced, as an amendment, simply as a punishment to the Southern States for their attitude during the Civil War … to inflict the grossest outrage which could be inflicted upon 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." I do not believe that this amendment was ever legally carried … it was simply forced on a recalcitrant people as a punishment for the part they took in the Civil War. We are not going to have a civil war here over a racial question.'

One way of gauging the astonishingly racist temper of the discussion that day is to note that no delegates even mentioned Aborigines. The guarantees they were shredding would have given citizenship, the vote and the equal protection of the law to Aborigines in, I might say, perpetuity. But this didn’t even rate a mention – not as a reason for, not as a reason against the proposal. Aborigines were not in the delegates' minds. They were fighting the guarantees in order to keep Chinese off the West Australian gold-fields and out of the factories of Victoria.

O’Connor and Isaacs slogged it out, back and forth. Isaacs had the US case law at his fingertips. The Supreme Court in Yick Wo v. Hopkins had called on the “equal protection” provisions of the Fourteenth Amendment to strike down a San Francisco city ordinance designed to put out of business all the Chinese laundries in the city. Isaacs did not object to the validity of that ordinance being decided by the Supreme Court of the US. His target was not an unelected judiciary. He just didn’t want the same protection extended to the Chinese in Australia.

What’s the point of this excursion into history? To bell yet another cat. The rejection of courts and judges to safeguard human rights is not 'in the DNA' of this nation. It is not. That is an invention. The fight is worth continuing. Success is still possible.

Alas, what is in our DNA is a marked reluctance to extend rights to “coloured persons” And it is of 'no use for us to shut our eyes to that fact …'

In 1898, not for the last time, we chose between race and rights and the price we have all paid is high. The politics of rights protection continues to be – and I seek the polite word – complicated by the fact that those who most obviously need protection these days aren’t named McClelland or Evans or Murphy or Ruddock, but Haneef, Al-Kateb and Ul-Haque."

Read Marr's lecture in full or listen to him read it himself online.

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