Realising Labor Values – The Moral Arc of Australia
26th Lionel Murphy Memorial Lecture
AUSTRALIAN NATIONAL UNIVERSITY, CANBERRA
I acknowledge the traditional owners of the land on which we meet tonight, the Ngunnawal people, and pay my respects to their elders, past and present.
It is truly an honor to be giving the 26th Memorial Lionel Murphy Lecture.
Looking through the list of past lectures that have been given in this series, I was struck by the breadth and eminence of those who have given addresses in honor of the late Lionel Murphy. And although that list includes many eminent jurists, including Justice Jim Spigelman, Julian Burnside QC and Justice Alastair Nicholson, and with Justice Michael Kirby particularly conspicuous for having given no less than three of these lectures, I note that it is not only jurists who have spoken in honor of Lionel Murphy.
Professor Pat McGorry has given a lecture focused on mental health in our country, Professor Tim Flannery has spoken on environmental matters, Patricia Turner has addressed the complex issue of Indigenous reconciliation, and former Prime Minister Bob Hawke has spoken about industrial relations in this country, and the threat that the then Howard Government’s workplace policies posed to principles of fairness at the core of our national compact.
That such a variety of eminent Australians have presented on such a breadth of topics, all in some way relevant to the life and work of Lionel Murphy, speaks volumes about the lasting positive impact he has had on our nation.
Tonight I want to continue this tradition by talking about the many bold and innovative ways in which Lionel Murphy contributed to building a more just society in Australia.
The title of my lecture is drawn from a quotation from Martin Luther King Jnr, who once declared with characteristic eloquence that “The arc of the moral universe is long, but it bends toward justice.”
In some recent speeches I have also drawn attention to a less well known quotation of Mr King’s, the truth of which I believe Lionel Murphy would have appreciated. Mr King declared that “Human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals."
There is no doubt that Lionel Murphy was one of those dedicated individuals described by Mr King. And I think that in large part, his public life can be described in terms of his struggle to build a more just Australia.
In this regard, I consider Lionel Murphy to be a great Labor leader. No, he was not a leader of the parliamentary party and nation in the same way that our great Prime Ministers have been. And certainly, he did not unify the nation around him and his ideas when he was in public office.
But it is my view that Lionel Murphy was a great Labor leader by virtue of the energy, the integrity and the courage that he brought to the fight for Labor values. Because with the small measure of historical perspective that we now have on Lionel Murphy’s life, it is clear that he was remarkably successful in his struggle for justice. And although he has not always been credited for his successes, they reverberate around us today, and have transformed public life in Australia for the better.
What is clear from even the most cursory examination of Lionel Murphy’s legacy is that he was a true reformer. He embraced with energy and courage the hard work of change. In some ways, this is the essence of leadership on the progressive side of politics – to reject a passive acceptance of the status quo, and instead to strive to improve our nation.
In contrast to this progressive mindset is the fundamental passivity and fear of change that is characteristic of the conservative side of politics. It is not that conservatives will never undertake reform. But in general, conservatives approach public life with the belief that catastrophe is the only legitimate impetus for social change.
Conservatives see their role as to work within existing power structures and institutions to manage the country – which means they have a genuine desire to do things right. This is not a problem in itself. But conservatives do not often stop to think whether they are doing the right things.
Genuine leadership requires the courage to question the status quo, and if necessary, to change it. This is the essence of the progressive mindset, of which Lionel Murphy was an exemplar.
Tonight I will do three things.
First, I will talk about the achievements of Lionel Murphy, and the values that drove him. I will not discuss his achievements in any detail, in part because those achievements could fill entire books, and in part because those achievements have filled entire books. They have also been the subject of several previous lectures in this series.
So tonight I will limit myself to providing a brief overview of some of Lionel Murphy’s major achievements, as manifestations of the Labor values that he dedicated his life to.
Second, I will discuss some of the ways in which our federal Labor Government has been working to realise the values that Lionel Murphy championed. In particular, I will provide some examples of the ways in which we have been challenging the status quo with bold policy reforms that embody our values, to build a more just Australia.
Third, and finally, I will touch on the unhappy truth that not only has the building of a more just society been marked by constant struggle, but that the progress we have made is reversible. It is certainly true that many of the great Labor reforms, while initially opposed by conservatives as fearful heresies that would bring about calamity, have now been embraced as the new orthodoxy by their one-time opponents. This is a well documented aspect of our political cycle, and includes landmark reforms as diverse as the Medicare system, no fault divorce, floating our currency and engaging with China.
However, some of Labor’s reforms have not yet been fully embraced by our opponents, and are in danger of being reversed. This threat has come into much sharper focus since Tony Abbott knifed Malcolm Turnbull for the leadership of the Liberal Party. That event marked a tipping point in the Liberals’ long slide toward the right that began under John Howard.
Today the Liberal Party has become a far right political force, powerfully influenced by a clique of hard-line libertarians and socially conservative reactionaries who appear to draw their political inspiration primarily from the American Tea Party and the free market fantasies expounded in the turgid science fiction of Ayn Rand. Although there is a tension within the Liberal Party between its traditionally conservative and its newer right wing elements, the latter are now clearly ascendant, and they appear contemptuous of the small ‘l’ liberalism on which their political party was founded. Indeed the Liberal Party now has so little in common with the liberal beliefs of Robert Menzies that one of its own former Prime Ministers, Malcolm Fraser, quit the party in disgust.
(i) The Legacy of Lionel Murphy
In honor of Lionel Murphy’s famously irreverent humor, I will start my discussion of his legacy with a quotation from someone he would be appalled to be associated with.
It is 500 years this year since Niccolo Machiavelli finished penning The Prince. While his name is now synonymous with all that is expedient and manipulative in politics, Machiavelli made astute observations about the political process that are, sadly, still pertinent five centuries later. In particular, he wrote about the challenge of reform, stating that:
… there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new.
I think the experience of Lionel Murphy demonstrates the truth of Machiavelli’s observation.
Lionel Murphy displayed several characteristics that do not often come together – but when they do they create a rare and powerful alchemy for change. He had great intelligence, he had a powerful sense of justice, and he had the integrity and the courage to do what his mind and his heart told him needed to be done. And it is a mark of this integrity and courage that Murphy embraced the perilous course of the reformer, accepting that his enemies would often be more vociferous in their condemnation than his friends would be in their support. One can only imagine the fortitude he must have had to endure – and shine – for eleven years on the High Court bench, sitting alongside colleagues with whom he was often profoundly at odds.
In the inaugural Lionel Murphy Memorial Lecture, delivered a year after his death in October 1987, Michael Kirby argued that while Murphy’s detractors criticised him as a revolutionary, Murphy was in fact a democrat, who used the institutions of democracy to accomplish a bold political program. Michael Kirby points out that rather than being a radical, Murphy’s life was dedicated “to the service of institutions which are enduring enough to accept strong personalities and radically different viewpoints... He did not stand outside our institutions. From the start, he joined them. He sought office in them. And he offered his creative spirit to them.”
It is striking to read a summary of Lionel Murphy’s achievements in public life because of their sheer breadth and impact. And as an Attorney-General myself now, I have an even deeper appreciation of how difficult it can be to bring about change.
Lionel Murphy was elected to federal Parliament as a Senator in 1961, becoming Opposition Leader in the Senate in 1967. In Opposition he worked tirelessly to embolden and empower the Senate in which he sat, in particular through the invigoration of the committee system. This is a legacy which continues to strengthen scrutiny and informed debate in our Parliament today. At the same time he stood up against discrimination, opposing in his words and actions prejudice in many forms, including prejudice against homosexuals, Jews and Indigenous Australians.
In 1969, Murphy was appointed Shadow Attorney-General, and in 1972 he became Attorney-General and Minister for Customs and Excise in the newly elected Whitlam Government. And it was in government that his creativity and passion to build a more just society was truly unleashed, as he embarked on an ambitious reform agenda that only now, with the benefit of 40 years hindsight, can we see contributed significantly to reshaping the legal landscape of Australia.
As Attorney-General, Lionel Murphy’s first act was to abolish the death penalty. Within a year he introduced a national system of legal aid, an institution which celebrates its 40th anniversary this year, the importance of which I will discuss a little later. Murphy also established the Law Reform Commission and the Institute of Criminology, and proposed the establishment of a general Federal Court. He also found time to introduce national trade practices legislation, and he was instrumental in modernizing family law in this country, as the driving force behind the Family Law Act 1975.
This list of major reforms – and I emphasise that it is not comprehensive – is remarkable. It is remarkable for its breadth. It is remarkable for having been achieved in less than three years. But most of all, to my mind, it is remarkable for the fact that despite the strident and at times hysterical opposition to the reforms he was implementing, the value of these reforms has not been seriously questioned in the forty years since they were made.
I want to digress very briefly to discuss one of Lionel Murphy’s lesser known achievements as Attorney-General, which was to throw open the legal door for civil celebrants in Australia. Despite vociferous opposition to the idea of civil celebrants from conservative quarters, including from within his own party, Lionel Murphy exercised his powers as Attorney-General to appoint the first civil celebrant in July 1973. A recent account holds that frustrated with opposition to the idea, he returned to his office late one night and typed the first letter of appointment himself, and posted it from a nearby post box to Lois D’Arcy, a 25 year old Queenslander. D’Arcy was a great success, and in the coming months Lionel Murphy appointed many others to this role. Today civil celebrants officiate at some two thirds of weddings in Australia.
Another significant action of Lionel Murphy as Attorney-General, though not itself a reform, was to take France to the International Court of Justice to demand an end to nuclear testing in the Pacific. The French government formally ceased atmospheric nuclear testing in the Pacific in 1974, largely as a result of public pressure brought to bear by Australia’s case before the International Court.
I am looking forward to my own chance to press our national interest and defend the natural environment at the International Court of Justice. In July I will be going to The Hague to represent Australia in our action to bring an end to so called ‘scientific whaling’ by Japan in the Southern Ocean.
Lionel Murphy on the High Court
Lionel Murphy was appointed to the High Court in February 1975. In an address titled Lionel Murphy and the Power of Ideas, Justice Michael Kirby noted that at the time Murphy was a judge of the High Court, and for some years after his death, Murphy’s unorthodox approach led to “almost universal disdain, even contempt and scorn… within the established legal profession.”
To be fair, the disdain did not flow in one direction only. In an address to the first national conference of Labor Lawyers in Adelaide in 1979, Lionel Murphy, then in his fourth year on the High Court, declared:
The law and its procedures in most respects are out of date, inefficient and often unjust. This is known by everyone, except 90 per cent of the bar and 95 per cent of the judges.
He went on to discuss the doctrine of precedent in similarly irreverent terms:
Precedent… is a favourite doctrine of mine. I have managed to apply it at least once every year since I've been on the bench.
The doctrine of precedent is one that whenever faced with a decision, you always follow what the last person did who was faced with the same decision.
It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford said, “the doctrine is based on the theory that nothing should ever be done for the first time”.
Clearly, this kind of approach was not going to endear Murphy to his more conventional colleagues in the legal profession. And Murphy was certainly willing to disagree with his colleagues, dissenting in 137 of the 632 decisions on which he sat.
I will not discuss in any detail tonight the considerable jurisprudence that Lionel Murphy produced while sitting on the High Court.
Suffice to say that amongst his many achievements he developed new ways of understanding our Constitution as a source of implied rights, expanded our judiciary’s willingness to engage with international law and jurisprudence from nations other than England, and in general supported the overturning of long-established precedents in areas in which he felt that equity and justice demanded it.
However, I can not resist quoting from just one of Murphy’s judgments, because I feel that it is in many ways emblematic of his approach to justice.
Percy Neal was the Chairman of the Yarrabah Community Council in Queensland. An Aboriginal leader, he was charged with assault for arguing with and spitting at a white manager. For these offences a magistrate sentenced Neal to six months jail with hard labour.
The matter ended up in the High Court. In his judgment, Justice Murphy noted that the sentencing magistrate had referred to Mr Neal as an “aggressive agitator” and concluded that “these remarks were not only patronising and insulting, they also made clear that anyone who agitated for change, ‘in any shape or form’, in the Aboriginal communities, would be under a disadvantage”.
Murphy went on to conclude:
That Mr. Neal was an ‘agitator’ or stirrer in the magistrate’s view obviously contributed to the severe penalty. If he is an agitator he is in good company. Many of the great figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Wilde aptly pointed out in The Soul of Man Under Socialism, ‘Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation’. Mr Neal is entitled to be an agitator. 
In his analysis of Lionel Murphy’s jurisprudence on the High Court, Michael Kirby reached a very insightful conclusion regarding the deeper and more lasting contribution that Lionel Murphy has made to our legal system. Kirby argued that Lionel Murphy (and I quote):
… did not accept that the role of the judge was mechanically to apply old rules. Instead, he turned the light of his intellect on those rules, as they were presented to him. If he found them wanting, he did not hesitate to say so and to explain why. It is those explanations which continue to haunt our legal system. They are spirits agitating the minds of lawyers and judges to follow.
The ultimate legacy of Lionel Murphy on the High Court of Australia may be even greater. I believe that he broke the spell of unquestioning acceptance of old rules where social circumstances and community attitudes have changed, rendering those rules inappropriate or inapplicable…
He saw the way in which, with fresh eyes, the Constitution would be adapted and could live as the guardian of basic rights and the protector of a democratic society….
… it is likely that this process of Lionel Murphy’s intellectual influence will continue to expand. Judges and advocates of the future in Australia will reach, without hesitation, into his dissents. There, they will find fresh ideas and questions which should be asked and answered. But they will also find insights concerning the legitimate creative function of the judiciary of the common law. In lonely dissent, judges will find encouragement. And they will understand how, in the long haul, ideas which have value may one day come to be accepted.
I agree wholeheartedly with these eloquent conclusions. And I believe that they illustrate once again the points I am making about Lionel Murphy as a leader who was willing, in what was at the time a deeply conservative institution, to be a bold and passionate voice for change and for progress.
In his eleven years on the High Court Lionel Murphy delivered many important judgments. All of these were founded in his personal sense of what was just. And despite the derision with which so many of his ideas were met at the time he wrote them, today many of those ideas have been adopted by the High Court, albeit often without attribution.
In this way, through his intellectual courage and his deep sense of justice, Lionel Murphy used his time on the High Court to reshape parts of the common law of Australia and, more fundamentally, to reshape the approach of Australian judges to their work. Through this contribution Lionel Murphy helped to powerfully realise his Labor values, creating a more just society for all Australians.
(ii) Realising Labor values – the pursuit of justice
It is in this light that I come to the work of our current Labor Government, of which I have been a proud member since we were returned to office in 2007.
If I had to identify a single Labor ideal that, above all, Lionel Murphy fought for, I would say that ideal was justice.
Murphy recognised that the progress of modern Australia towards a just society has never been inevitable. He recognised that while our nation was built on the ideal of a fair go, any realistic examination of our history reveals that the ideal of the fair go did not, in fact, extend to all, with Indigenous Australians, women and immigrants, amongst others, excluded from participating fully in our society.
And while we have certainly made huge steps toward building a more just and egalitarian society in the 113 years since Federation, it is clear today that the ideal of ‘a fair go for all’ is an ideal that is yet to be fully realised.
Access to justice
People sometimes ask me why I went into politics. Well, the truth is that I’ve always been interested in politics. I was nineteen in 1975, when the Governor-General dismissed the Whitlam Government. It was a shock to an idealist like me, and it took me four years to recover sufficiently from my anger at what seemed to me to be a gross injustice, and an abuse of our democratic principles, to want to engage in the democratic process. When I did, it was to join the Labor Party.
I am happy to say that now, over three decades later, I’m still a proud member of the Labor Party, and that to some extent at least, I have ‘maintained my rage’, in particular, my rage against injustice.
As Attorney-General, I have recently been discussing publicly the concept of ‘access to justice’. This is a concept that clearly mattered to Lionel Murphy who, as I’ve mentioned, introduced the first national scheme of Legal Aid. Legal Aid now forms one of the pillars of access to justice in our country, with independent Legal Aid Commissions, jointly funded by the states and the Commonwealth, operating in every Australian jurisdiction.
Until 1997, Legal Aid was one of the golden threads running through Australia’s social safety net, along with Medicare, universal superannuation and the right to a decent minimum wage.
But in 1997, the newly elected Howard Government imposed savage cuts on Legal Aid across Australia. Chronic underfunding then continued for a decade, while demand for legal services grew.
The gap between increasing need for legal assistance and reduced funding has created long lasting damage to the sector.
Restoring access to justice is a long-haul task, and our federal Labor Government has made the work of repairing and rebuilding legal services across the country a priority since taking office.
My predecessor, Robert McClelland, provided a funding boost in 2010. And this month, in a very tight budget – and my first as Attorney-General – the three frontline providers of access to justice, Legal Aid, Community Legal Centres and Aboriginal and Torres Strait Islander Legal Services received an extra $52 million.
Lawyers working in legal assistance agencies are among the nation’s best legal minds. The deeply committed staff at these organisations, who often work under difficult conditions, are an asset to our justice system and Labor is proud to support them.
These are the people who help build a more just society, day by day, assisting those who literally walk in off the street: the woman who needs an intervention order to keep her safe from her abusive partner; the father who has lost his job because he had to take time off to look after a sick child; the family threatened with the loss of their home by an unreasonable landlord.
While we are providing immediate extra funding for these vital organisations, we also know that there is still a long way to go before we are able to close the massive hole in the legal safety net. For this reason, the Government is also completing a comprehensive review of legal assistance services. Due later this year, this review will make recommendations about the long term shape and funding of legal assistance in our nation.
Funding existing institutions of our justice system, such as Legal Aid, is vitally important in building a more just society. But building a just society requires far more than this.
I have recently been arguing that the concept of ‘access to justice’ should be understood as broader than simply the ability of individuals to enforce their legal rights in our courts. Access to justice is a concept that also relates to how the institutions of state, of which the formal justice system is only one part, operate to ensure that all Australians live under the protection that our laws aim to provide.
It is my view that while people must always have the opportunity to fight for their rights in court, in a society under the rule of law justice should not be something individuals must constantly be fighting for. Rather, courts should be a last resort when something has gone wrong, while justice should be the norm in our society, experienced by all Australians as part of our way of life.
Under this expansive definition, ‘access to justice’ is partly about ensuring that all Australians – and in some cases the institutions that constitute our civil society, such as non-government organisations engaged in public life – have the opportunity to participate in society with a high quality of social, civic and economic engagement.
I strongly believe that providing access to justice in this broadest sense, to all members of our society, is essential in strengthening Australia as an egalitarian, participatory democracy under the rule of law.
Of course, this is an ideal. But ideals are important in setting policy objectives, and I feel that this is a policy objective that all governments should aspire to achieve.
To illustrate the points that I’m making, I want to briefly take you through a few of the initiatives that our Labor Government has brought about to build a more just Australia.
It is not only the judicial arm of government that has a critical role to play in delivering justice within our community. The executive has a role to play too. And the executive policies that shattered a generation of Aboriginal families, whatever the intentions of those who implemented them, inflicted a tragic injustice on thousands of Australians. Yet although that injustice was perpetrated by the Australian Government, Prime Minister Howard refused, year after a year, to apologise on behalf of the Government to the victims. In many ways this refusal perpetuated the original injustice.
In contrast, the apology to the Stolen Generation, delivered by Prime Minister Kevin Rudd in February 2008, shortly after Labor came to office, was a profoundly healing act of justice that was far too long in coming. The delivery of the apology was a poignant event for me too, not just because of its historic significance, but because one of the members of the stolen generation who I had represented in the case, Lorna Cubillo, was present on the floor of the House of Representatives to hear the apology offered by the Prime Minister.
And in March this year Prime Minister Julia Gillard delivered another powerful act of justice for those affected by forced adoption, apologising on behalf of our nation to those who were forced to give up their children, and to the children themselves.
While we cannot change what has happened in the past, or take away the pain of years, decades and, in some tragic cases, lifetimes of parents and children forcibly separated from each other, in making this apology we have taken a significant step toward justice for those who have been wronged.
The Royal Commission
Another vitally important action that our Labor Government has taken to bring justice to so many in our community who have been denied justice until now is the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse.
This Royal Commission will hear from hundreds – if not thousands – of witnesses who have suffered terrible injustices as victims of child sexual abuse. There is justice for the victims of these shocking crimes in at last being given the opportunity to be heard, to be believed, to be acknowledged.
To bring an abuser to court can only provide, at best, a partial, retributive kind of justice to the victim of those crimes. For the victims, many who have suffered the effects of the abuse for decades, nothing we do now can undo the harm they have suffered. And it is now clear that an appalling number of victims of child sexual abuse, unable to deal with the psychological scars that the abuse inflicted, have taken their own lives.
The perpetrators should be brought to account for their crimes. But in building a more just society, it is also vitally important to examine the systemic causes that allowed child abuse to occur at such a scale and for so long, and to take the steps necessary to address these causes, to reduce as far as is possible the incidence of these crimes in the future.
This Royal Commission is essential in building a more just nation, a nation in which our children, the most vulnerable members of our community, are protected from the appalling injustice of abuse.
This is one of the most significant and far-reaching Royal Commissions that has ever been undertaken in this country. It has not been easy to set up – getting the right balance of Commissioners, crafting the most appropriate Terms of Reference, finding vital funds in this tight fiscal environment to support its work. And it will not be any easy task for the Commissioners to listen the stories of those who have suffered. But we have to do the hard things. We have to admit that there have been failings, often grievous failings, to protect children. We have to listen to their experiences. And we have to do something about it.
All governments will be subject to the scrutiny of this Commission and all governments will need to respond to its recommendations. And it is due to the Prime Minister’s leadership on this issue that we’ve been able to bring together all the states for a joint Royal Commission.
There are many more examples that I could give of the ways in which justice must mean more than just the opportunity to have one’s day in court. There is justice inherent in giving all Australians the opportunity for a good education, which we are now pursuing through our Gonski school reforms. There is justice in ensuring that those who suffer disabilities are supported in a manner that enables them to participate fully in our society. We are now pursuing this goal through our historic DisabilityCare reforms. There is justice in ensuring that our children inherit a country – and a world – blessed with a natural environment that is as healthy, as productive, and as beautiful as the environment that we all enjoy today. Our Labor Government is pursuing that goal in the only economically responsible way there is – through a market based-mechanism that puts a price on dangerous carbon pollution.
All of these policy initiatives are driven by our Labor values, and particularly, by a belief in justice in its broader sense. And, as you will all be aware, we are fighting to implement these reforms in the face of a concerted, virulent and often appallingly dishonest campaign on the part of our political opponents, who oppose most of these reforms.
(iii) Defending justice
This leads me to the third matter that I wanted to address tonight, and that is the issue of defending justice.
As I foreshadowed when I began, we are seeing today signs that our political opponents, in their new radical right stripe, have in their sights many of the social reforms that had until recently benefited from bipartisan acceptance as a part of our social compact.
Our opponents say they accept that their Workchoices policies went too far, breaking the social compact that had been forged over decades to ensure a basic level of fairness in our workplaces. Yet now there are rumblings that, should they win government in September, the Coalition will put ‘workplace flexibility’, as they now call it, back on the table.
The Australian Broadcasting Corporation has provided a vital, independent service to Australians for generations, yet we are hearing that the Liberal Party, and their ideological leadership in particular, are calling for our ABC to be sold off to commercial interests.
In 1983 Bob Hawke swept to power declaring that the Franklin River would be saved from destruction at the hands of a short-sighted state government. The aftermath of the Franklin Dam case ushered in a new era of responsible environmental protection in our country, founded on the principles of economically sustainable development, and with matters of national environmental significance protected by the Australian Government. Yet the Liberal opposition are now talking about devolving responsibility for environmental protection back to the states, turning back the clock on the Franklin Dam victory at a time when our natural environment is under greater pressure than ever before.
But the issue I will briefly focus on now is the issue of freedom of political communication in our country. I want to focus on this because I feel that recent assaults on this freedom that we are seeing from conservative state governments represent a particularly subversive attack on the kind of free and open society that we have built here in Australia.
In New South Wales, the O’Farrell Government has promulgated new ‘Principles for Funding of Legal Assistance Services’. These Principles include the following directions (and I quote):
NSW Legal assistance services funded by Legal Aid and Public Purpose funding will not include activities which may reasonably be described as political advocacy or political activism. This may include but is not limited to:
- i. Lobbying governments and elected officials on law reform and policy issues …
- ii. Public campaigning and advocacy… seeking changes to government policies or laws;
- iii. …
- iv. Providing representation or advice (other than initial legal advice) to activist groups, lobbying groups and actions groups.
In a similar vein, in July last year the Queensland Attorney-General, Jarrod Bleijie, abruptly terminated all state funding to the Environmental Defenders Offices in both Brisbane and Cairns. This termination of state funding has effectively cut in half the recurrent funding of these important organisations, that for years have fought for the public interest. Not only do these two offices provide free legal advice to Queenslanders who need help with matters relating to the environmental, planning and health impacts of proposed developments, but they also play a vital role in environmental law reform, policy formulation and public advocacy.
Mr Bleijie gave scant reason for the funding termination in his letters to the EDOs, other than a general reference to budgetary pressures. But when subsequently interviewed on ABC Radio he was more forthcoming, claiming that EDOs were “essentially a front for the Greens Party in Queensland”, and that community legal centres were not “accountable”. Neither of these statements is true.
A directive similar to the NSW Principles for Funding was issued to non-government organisations funded by Queensland Health, which now have a clause in their funding agreements which states:
Where the Organisation receives 50% or more of its total funding from Queensland Health and other Queensland Government agencies, the organisation must not advocate for State or Federal legislative change. The Organisation must also not include links on their website to other organisations’ websites that advocate for State or Federal legislative change.
These attempts by conservative governments to gag political activity by community organisations are, quite frankly, a cowardly and heavy-handed attempt to stifle the kind of policy debate that we need and expect in a free and open democracy.
Community legal organisations have played an integral role in the struggle for justice in this country for decades. The extensive experience of these organisations at the very front line of service delivery means that they are often able to provide unique insights and contributions to policy development in their areas of expertise. And as organisations in close contact with disadvantaged Australians, through public advocacy they provide another important avenue to justice by giving a voice to those who are often less able to advocate for themselves.
At the Access to Justice Conference in March this year, the federal shadow Attorney-General, Senator Brandis, was challenged by an audience member about whether he supported the freedom of community legal centres to advocate for law reform. Senator Brandis responded with the subterfuge that with scarce legal resources available, in his view community legal centres should not engage in advocacy, but should focus instead on “case work”.
I could not disagree more.
Advocating change to the systemic problems that drive legal need can be a far more efficient use of scare resources than waiting until problems become so severe that they require court intervention.
And more importantly, that community groups of all kinds are free to advocate for systemic change in this country is a mark of our maturity as a democracy. I know, from personal experience, that criticisms from these groups may not be pleasant for governments. But community organisations form a vital part of the conversation in a robust democracy, and their ideas improve the quality of the political and policy debate in this country.
How can we continue to build a more just society in this country when governments are seeking to silence those working at the front line of the justice sector itself?
How can a party claim that it is a champion of free speech while it is gagging organisations whose voices are integral to political and policy debate in our society?
The vindictive cutting of funding to community legal assistance organisations is – and I will be blunt – disgraceful. It is an attack on organisations that run with economy and efficiency, staffed by dedicated people and armies of volunteers. It is an attack on the access to justice that these organisations provide to the most disadvantaged Australians. And, so far as it is motivated by a desire to gag debate, it is an attack on participation in our democracy.
In some respects these new attempts to crush political activity by institutions of our civil society reminds me of the situation of a non-government organisation called Aid/Watch, which had its charitable tax status revoked by the Australian Tax Office in 2006. Aid/Watch was engaged in advocacy for a more efficient and effective use of Australian foreign aid. This meant that it was often critical of Australian Government policy.
In 2006 the Australian Tax Office determined that because Aid/Watch was so directly involved in political advocacy, it was not a ‘charity’ and so would no longer receive charitable tax status. The effect of this decision not only threatened the funding base of Aid/Watch, but it had a chilling effect on freedom of speech throughout the charity sector, as charities that had long advocated for policy changes were suddenly unwilling to speak out lest they have their funding undermined by similar rulings.
A four year legal battle ensued, ultimately reaching the High Court in 2010. I am pleased to say that the High Court majority reversed the decision of the ATO, and at the same time overturned some 90 years of case law that had narrowly and anachronistically defined the acceptable functions of charities. The High Court majority explicitly recognised that charities should be able to engage in public debate, and that such public debate is for the benefit of the wider community. Pointedly, the High Court also found that in Australia:
The provisions of the Constitution mandate a system of representative and responsible government… Communication between electors and legislators and officers of the executive and between electors themselves, on matters of government and politics is ‘an indispensable incident’ of that constitutional system… Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.
The High Court did not cite Lionel Murphy’s pioneering dissents in which he had argued that in creating a system of representative government, our Constitution necessarily implied certain basic rights. But I have no doubt that the Aid/Watch decision echoes the ideas espoused by Lionel Murphy more than thirty years earlier in cases such as Miller v TCN Channel Nine (1976) and Ansett Transport Industries v The Commonwealth (1977), and that had long been dismissed by his judicial colleagues as radical heresies.
I like to think that the willingness of the High Court judges hearing the Aid/Watch case to look at the situation before them with fresh eyes, and seeing the need for change to the common law, to overturn a long line of legal authorities that no longer served the interests of justice is, at least in part, a testament to the deeper intellectual legacy of Lionel Murphy in that court, that Michael Kirby so clearly described.
A healthy democracy is a dynamic entity. It exists in a state of constant tension, in an ongoing conversation founded on a contest of ideas. The energy of this political contest, with many voices arguing divergent and often passionately held views about how best to serve the national interest, helps to drive positive change in our nation.
It is of great concern to me that the free flow of ideas and arguments is under growing threat from conservative governments seeking to silence those with whom they do not agree.
Since Tony Abbott became Opposition Leader, the political contest in Australia has become increasingly polarised and ugly. The job of an Opposition is not, as Mr Abbott claims, simply to oppose. Nor is to engage in demagoguery and the exploitation of fear for political advantage.
The job of the political opposition is to engage constructively in the debate about the future of our country. And if the policies of the Government are being opposed, to do so by offering the Australian people something better, rather than just a series of hollow slogans.
The differences in approach to political engagement between Tony Abbott and Lionel Murphy could hardly be more stark.
I am proud to be on the progressive side of politics.
In the spirit of Lionel Murphy, I believe it is incumbent on those who serve the Australian people in public office to always look at how we can better realise the values we hold dear. This is the essence of the progressive ethos. We do not rest on our laurels, content that that status quo is ‘good enough’ until intolerable pressure – or disaster – demands that we react.
This zeal for reform does not mean that we should not also celebrate our many achievements as a nation.
And I do not mean to imply that good management, as well as leadership, is not an important function of government. Clearly good management is important, and Labor takes its role as manager seriously.
Just this week Australia was ranked the best developed country in the world to live in under the OECD’s ‘Better Life Index’ – the third year in a row that we have been awarded this ranking. And earlier this year The Economist magazine ranked Australia as the second-best country on Earth to be born in, just behind Switzerland.
Despite the Global Financial Crisis we have maintained strong economic growth, low unemployment, low interest rates and low inflation. And these excellent economic indicators are reflected in the fact that Australia now has AAA credit status from the three world rating agencies for the first time, one of only 8 countries in the world that does.
These outstanding economic results demonstrate that Labor has steered our economy well, through the stormiest of economic seas. But this does not mean that it is time to sit back and coast on our successes, as the Howard Government did when it was in office during the long economic boom that they inherited, built as it was on the sweeping economic reforms of the Hawke and Keating era.
To the contrary, our economic successes should be a goad to further action. We should grasp the opportunities that our current prosperity provides to realise our more lofty ideals, to push Australia further along its long historical arc toward justice. We should disprove the sometimes-stated thesis that Australia handles adversity well, but prosperity poorly.
The question for those in public life is not, as the conservatives and their brains trust at the Institute of Public Affairs seem to believe, “How can we diminish the Government of the Australian people to the role of a minor functionary?” The questions we ask as Labor politicians relate to how we can continue the noble endeavor of making Australia a more harmonious, a more prosperous, a more secure, a more egalitarian, a more just nation.
These questions, if honestly answered, reveal that there is still a great deal to be done to realise our values.
I am proud to be engaged in the long struggle to build a more just Australia. And I am proud to be part of the great Labor tradition of progressive politics, a tradition in which Lionel Murphy remains an exemplary figure.
 Michael Kirby, Lionel Murphy and the Power of Ideas.
 Aid/Watch Inc v Commissioner of Taxation  HCA 42, paragraph 44.
 Miller v TCN Channel Nine Pty Ltd (1976) 161 CLR 556
 Ansett Transport Industries Operations Pty Ltd v The Commonwealth and Ors (1977) 139 CLR 54