¹ Alexander Hamilton, James Madison and John Jay, Federalist Papers (New York: Mentor, 1961), No.84, p.515.

² But see Vincent Ostrom, The Political Theory of the Compound Republic, 2nd ed., Lincoln: University of Nebraska Press, 1987, first published 1971. Ostrom has a highly individualist interpretation of the Federalist.

³ Federalist Papers, No.84, p.516.

⁴ Ibid., No.51, p.323.

⁵ For an excellent survey of the literature discussing rights in Australia, see Alice Erh-Soon Tay, Human Rights for Australia, Human Rights Commission Monograph Series No.1, Australian Government Publishing Service, Canberra, 1986.

⁶ The considerable compact of the Canadian Charter on Public Law and Policy is discussed in a special number of Public Law, Autumn 1988, on 'The Canadian Charter of Rights and Freedoms'.

⁷ New Zealand White Paper, A Bill of Rights for New Zealand, Government Printer, Wellington, 1985.

⁸ For example, recent articles by Joseph Jaconelli, 'Incorporation of the European Human Rights Convention: Arguments and Misconceptions', Political Quarterly, 590, 3, 1988, pp.343-57; and Anthony Lester, 'Fundamental Rights: the United Kingdom Isolated?', Public Law, 1984, pp.46-72.

⁹ The National Party has taken essentially the same view as the Liberal Party, and will not be discussed separately. At the national level and in New South Wales, these two parties form a close coalition, and in States where they do not, they have similar positions regarding rights.

¹⁰ See Brian Galligan, 'Federalism's Ideological Dimension and the Australian Labor Party', Australian Quarterly, 53, 1981, pp.128-40.

¹¹ The following examples and others are discussed at length in Brian Galligan, Politics of the High Court, St Lucia, University of Queensland Press, 1987.

¹² Commonwealth Parliamentary Debates, Vol.13, 1903, p.698.

¹³ Federal Parliamentary Labor Party, Caucus Minutes 1901-1949, edited by Patrick Weller, Melbourne University Press, 1975, Vol.2, p.357; and for Scullin's exposition of the Bill, Commonwealth Parliamentary Debates, Vol.123, 1930, pp.180 ff.

¹⁴ E.G. Whitlam, 'The Constitution versus Labor', in E.G. Whitlam, On Australia's Constitution, Vic., Widescope, 1977, p.16.

¹⁵ E.G. Whitlam, Reform During Recession, Toowong, Qld, University of Queensland ALP Club, 1978, p.6. See also Whitlam's article, 'The Labor Government and the Constitution', in G. Evans (ed.), Labor and the Constitution 1972-1975, Melbourne, Heinemann, 1977, pp.305-30. Whitlam has recently published an extensive account of his government's achievements: The Whitlam Government 1972-1975, Ringwood, Vic., Penguin Books, 1985.

¹⁶ Commonwealth v. Tasmania (1983), 57 ALJR 450. For commentaries and analysis, see the special number of Federal Law Review, Vol.17, No.2 (1983-84); Australian Constitutional Convention, Standing Committee 'D' Volume II, Appendices, (1984); and M. Sornorajah, ed., The South West Dam Dispute: The Legal and Political Issues, Hobart, University of Tasmania, 1983.

¹⁷ Geoffrey Sawer, Australian Federal Politics and Law 1929-1949, Melbourne, Melbourne University Press, 1963, p.172.

¹⁸ Commonwealth Parliamentary Debates, House of Representatives, 1 October 1942, p.1338 ff.

¹⁹ Ibid., p.1339.

²⁰ Section 2, 60A (2) (h), Constitution Alteration (War Aims and Reconstruction) Bill 1942.

²¹ Commonwealth Parliamentary Debates, House of Representatives, 15 & 16 March 1944, pp.1393 ff.

²² Brennan, ibid., p.1400. Brennan, however, voted for the amendments.

²³ See Kylie Tennant, Evatt: Politics and Law, Sydney, Angus and Robertson, 1970, pp.151, 161-2.

²⁴ J.E. Richardson, 'The Parliamentary Joint Committee on Constitutional Review', Canberra Bulletin of Public Administration, Vol.XIII, No.2 (Winter 1986), p.154. Richardson was Legal Secretary to the Joint Committee.

²⁵ Ibid., p.155.

²⁶ Report from the Joint Committee on Constitutional Review, 1959, pp. 46-7, for this and the following quotations.

²⁷ Richardson, 'The Parliamentary Joint Committee on Constitutional Review', pp.155-6.

²⁸ In Attorney-General (Commonwealth) ex rel. McKinlay v. Commonwealth (1975), 135 CLR 1, the High Court, with Murphy J. dissenting, rejecting the claim that the Constitution's S.24 phrase, 'directly chosen by the people', entailed the one vote - one value principle. However the Court did require strict adherence to the constitutional requirement that numbers of seats be allocated to States on the basis of their proportionate populations. The Act was deficient in not requiring regular calculations and, if necessary, redistribution. The Electoral Act was brought into line, and in 1984 the Commonwealth electoral procedures were further enhanced with the establishment of the new Electoral Commission.

²⁹ W.K. Hancock, Australia, Brisbane, Jacaranda, 1961, p.55 (first published 1930); and Hugh Collins, 'Political Ideology in Australia: The Distinctiveness of a Benthamite Society', Daedalus, Winter 1985, pp. 147-69.

³⁰ For an account of the Benthamite characteristics of this strain of Australian constitutionalism, see Michael James, 'The Constitution in Australian Political Thought', in M. James (ed.), The Constitutional Challenge, Centre for Independent Studies, 1982, pp.9-36. The Utilitarian and natural right theories are contrasted in H.L.A. Hart, 'Utilitarianism and National Rights', in H.L.A. Hart, Essays in Jurisprudence and Philosophy, Oxford, Clarendon Press, 1983, pp.181-97.

³¹ Australian Labor Party, Federal Platform, Constitution and Rules (as amended by the 25th Commonwealth Conference, 1963), Section XX, 1,p.12. The new platform deleted from the Methods Section an earlier call for an amendment of the Constitution to include a charter of civil and human rights. This deletion was made, according to reports, because constitutional entrenchment of such a charter 'presented difficulties', The Sydney Morning Herald and The West Australian, 7 August 1963. Unfortunately, such newspaper reports are second-hand because the press were not admitted into Federal Conference until 1965, and there are no transcripts of the 1963 Conference.

³² Legal Advisory Committee Report, Document 15, 'State Resolutions: VIII Legal and Constitution'. For Minutes of the Conference's decision, Australian Labor Party, Official Report of the Proceedings of the 26th Commonwealth Conference, Sydney, 2 August 1965, pp.95-6.

³³ Australian Labor Party, Federal Platform Constitution and Rules (as approved by the 26th Commonwealth Conference 1965), Section XXII, 1. p.28.

³⁴ Official Report of the Proceedings of the 26th Commonwealth Conference, pp.95-6.

³⁵ Australian Labor Party, Agenda, 27th Commonwealth Conference, 'XIII: Civil Liberties', Item 135, p.49.

³⁶ Australian Labor Party, Official Reports of the 27th Commonwealth Conference and Special Conference, (Adelaide, 31 July 1967), p.96: Appendix T, Document 16, Civil Liberties Committee, Agenda Items, Item 135.

³⁷ Official Reports of the 27th Commonwealth Conference and Special Conference, 1967, p.28 for Minute; and Platform, Constitutions and Rules (as approved by the 27th Commonwealth Conference, Adelaide, 1967), 'XXIV: Civil Liberties', 1, p.30. Murphy's speech is printed in Appendix K to the Official Reports, pp.64-6.

³⁸ Official Reports, p.64, for this and the following quotation.

³⁹ Ibid., p.66. See also The Age, 3 August 1967; and for a subsequent speech on a similar theme, The Australian, 11 September 1967.

⁴⁰ Australian Labor Party, Official Report, 28th Commonwealth Conference, Melbourne, 28 July 1969, pp.131-5.

⁴¹ Australian Labor Party, Platform, Constitution and Rules (as approved by the 28th Commonwealth Conference, Melbourne, 1969), 'XXV: Civil Liberties', p.31.

⁴² The Australian, 30 July 1969.

⁴³ The Age, 31 July 1969.

⁴⁴ For the text and Whitlam's account of the significance of the change, see Whitlam, 'The Future of Australian Federalism', extracts from an address given on 8 November 1971, in his On Australia's Constitution, p.149.

⁴⁵ See E.G. Whitlam, 'A New Federalism', Australian Quarterly, 43, No.3 (September 1971), pp.6- 17; and for extensive discussion the special number of Politics, ed. Dean Jaensch as The Politics of 'New Federalism', Australasian Political Studies Association, Adelaide, 1977. The platform on Civil Liberties was not changed at the 29th Commonwealth Conference held at Launceston in 1971. However, the Law Reform agenda grew substantially to 31 items. Australian Labor Party, Federal Platform & Policy (as approved by the 29th Commonwealth Conference, Launceston, 1971), NSW edition, pp.16-7.

⁴⁶ H.V. Evatt, Liberalism in Australia: An Historical Sketch of Australian Politics Down to the Year 1915, Sydney, Law Book Co., 1918.

⁴⁷ The Constitutional Convention sprang from dissatisfaction among the States, particularly Victoria, with severe vertical fiscal imbalance in Australian federalism and evidenced a widespread feeling that constitutional reform was both desirable and achievable. The Convention's work was carried on over a decade and a half in six plenary sessions and by continuing advisory committees. Although paralysed by partisan and Commonwealth-State rivalries during the Whitlam period and in the later years, the Convention proved a valuable forum for constitutional discussion, particularly for the States. The Convention was credited with preparing the ground for the highly successful 1977 referendums when three out of four proposals, those concerning casual Senate vacancies, territorial votes in referendums and retirement age for federal judges, were carried with exceptionally high support. The Constitutional Commission that superseded the Convention benefited from its extensive work and treated its recommendations as submissions to the Commission.

⁴⁸ Australian Constitutional Convention, Official Record of the Debates, Sydney, Government Printer, 1973, pp.330-1.

⁴⁹ Ibid., pp.341-2.

⁵⁰ Opinion of E.A. Willis, M.L.A. (NSW) in Regard to the Issue of a 'Constitutional Bill of Rights', in Appendix A of Standing Committee D, Report to Executive Council, 1 August 1974, p.49. Dr Forbes of the Federal Parliament concurred with this opinion, and its main points have been repeated by numerous Liberals since then.

⁵¹ Ibid., pp.49-50.

⁵² Commonwealth Parliamentary Debates, Senate, Vol.58, 21 November 1973, pp.1971 ff.

⁵³ Koowarta v. Bjelke-Petersen (1982) 39 ALR 417. The judges were deeply divided, however, and the four-to-three majority included Justice Stephen who held that some inherent attribute of 'international concern' was required for Commonwealth legislation to satisfy Section 51(xxix) and that an international treaty was not sufficient.

⁵⁴ Gareth Evans, "An Australian Bill of Rights?", Australian Quarterly, Vol.45, No.1, March 1973, pp.4-34.

⁵⁵ Commonwealth v. Tasmania (1983) ALR 625. By a new four-to-three majority (there had been two changes to the Court since the Koowarta case), the High Court consolidated, and to an extent expanded, its earlier broad interpretation of the Commonwealth's external affairs power. The dam site had been listed on the World Heritage List, at the Commonwealth Government's request, and it was held that the Commonwealth had power to prevent State development because of its reponsibilities under the international Convention for the Protection of the World Cultural and National Heritage.

⁵⁶ Gareth Evans, 'Commission, Contempts and Civil Liberties', Address to Conference organised by Centre for Continuing Education, The Australian National University, Canberra, 25 February 1984.

⁵⁷ Ibid., p.18.

⁵⁸ Justice Staples, The Canberra Times, 27 February 1984.

⁵⁹ Australian Bill of Rights 1984, 'Draft-in-Confidence', SS.9, 15. The text was publicly released by Mr Bowen when he became Attorney-General.

⁶⁰ 'Commissions, Contempts and Civil Liberties', p.17.

⁶¹ Greg Sheridan, The Australian, 1-2 December 1984.

⁶² The Canberra Times, 28 March 1984, for this and the following quotation.

⁶³ The Canberra Times, 24 October 1984.

⁶⁴ L. Dobson, 'Caucus forces Bowen to reverse rights bill stand', The Financial Review, 18 April 1985.

⁶⁵ The Age, 1 October 1985.

⁶⁶ For Bowen's second reading speech, Commonwealth Parliamentary Debates, House of Representatives, 9 October 1985, pp.1706 ff, and a sampling of the Senate's debate, Commonwealth Parliamentary Debates, Senate, 2 December 1985, pp.2662 ff.

⁶⁷ J.M. Spender, Media Release, 13 November 1985.

⁶⁸ The Canberra Times, 15 November 1985.

⁶⁹ The Bulletin, 25 March 1969.

⁷⁰ The Australian, 2 January 1986.

⁷¹ Report of speech in Perth, Australian, 7-8 June 1986.

⁷² Contrast this with the sensible bipartisan approach of the Senate Standing Committee on Constitutional and Legal Affairs that published an 'Exposure Report' in November 1985, 'A Bill of Rights for Australia?' Canberra, Australian Government Publishing Service, 1985. The Committee did not proceed with a final report because the partisanship over the Bowen Bill had become too intense.

⁷³ From the terms of reference, reprinted by the Constitutional Commission, Final Report, Vol.II, Appendix B, Canberra, Australian Government Publishing Service (AGPS), 1988, p.897.

⁷⁴ For the report on rights, Constitutional Commission, Report of the Advisory Committee on Individual and Democratic Rights Under the Constitution, Canberra, Commonwealth of Australia, 1987.

⁷⁵ Constitutional Commission, First Report, Canberra, AGPS, April 1988. The Commission's terms of reference required it to make 'interim reports on matters under study at intervals to be determined in consultation with the Attorney-General'.

⁷⁶ Brian Galligan and J.R. Nethercote, The Constitutional Commission and the 1988 Referendums, Centre for Research on Federal Financial Relations, Canberra, The Australian National University, 1989.

⁷⁷ Brian Galligan and J.R. Nethercote, The Constitutional Commission and the 1988 Referendums, Centre for Research on Federal Financial Relations, Canberra, The Australian National University, 1989.

⁷⁸ See John Cain, 'Towards a federal reformation: the renaissance of the Australian States', in M. Birrell (ed.), The Australian States, Longman Cheshire, 1987.

⁷⁹ For critical discussion of this, see Chapters by Bhajan Grewal and Cliff Walsh in Brian Galligan (ed.), Australian Federalism, Melbourne, Longman Cheshire, 1989.

⁸⁰ Sample ballot paper, The Cases For and Against, Canberra, AGPS, 1988.

⁸¹ John Howard, Leader of the Federal Opposition, 'Constitutional Ambush', The Weekend Australian, 11-12 June 1988, p.19.

⁸² Constitutional Commission, Final Report, Chapter 9.

⁸³ A Bill of Rights for Australia? An Exposure Report, Canberra, AGPS, 1985.

⁸⁴ See Rainer Knopff, 'Parliament vs The Courts: Making Sense of the Bill of Rights Debate', Legislative Studies, Vol.3, No.2 Spring 1988: pp.3-16.

⁸⁵ Peter Bailey, 'The Bill of Rights Debate: A Comment', Legislative Studies, Vol.3, No.2, Spring 1988, p.17.

⁸⁶ This is a book length examination of these and other issues concerning whether Australia should have a bill of rights that I am currently engaged in with John Uhr and Rainer Knopff.

⁸⁷ Brian Galligan, Rainer Knopff and John Uhr, 'Federalism and the Protection of Rights', Publius: the Journal of Federalism, Vol.20, No.2, 1990.

⁸⁸ See G.S. Reid and Martyn Forrest, Australia's Commonwealth Parliament 1901-1988: Ten Perspectives, Melbourne, Melbourne University Press, 1989, especially Ch.8.

⁸⁹ See my Politics of the High Court, St. Lucia, University of Queensland Press, 1987.