John Cain Foundation Lecture: Justice, social democracy and the cause of Labor

Delivered at Melbourne University.

THE HON MARK DREYFUS QC MP

SHADOW ATTORNEY-GENERAL

SHADOW MINISTER FOR NATIONAL SECURITY

MEMBER FOR ISAACS

 

JOHN CAIN FOUNDATION LECTURE: JUSTICE, SOCIAL DEMOCRACY AND THE CAUSE OF LABOR

 

MELBOURNE UNIVERSITY

WEDNESDAY, 16 NOVEMBER 2016 

 

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Introduction

I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders, past and present.

I would also like to acknowledge former Premier John Cain, former Deputy Prime Minister Brian Howe and other distinguished guests.

Thank you for your warm introduction, and for giving me the opportunity to speak this evening on such a broad and important topic. 

If this speech were given a month ago – even two weeks ago – it would have been different. But now, because we are meeting here together shortly after the election of Donald Trump as the leader of the free world, our topic of discussion must inevitably shift.

For I think it would be nearly impossible to reflect on justice and social democracy without examining how the Trump phenomenon fits into these things, or indeed, threatens them.

The subject of this evening’s address is “Justice, Social Democracy and the Cause of Labor”.  I think there is no doubt that the concept of justice is fundamentally entwined with the tenets of social democracy, and I will explain why. Social democracy as a concept is also at the heart of Labor’s vision for Australia.  It is because of this profound connection between justice, social democracy and Labor’s vision that I joined the ALP as an idealistic young man.  And it is because of this bedrock of interconnected values that I have never doubted my decision, whatever the trials and tribulations of our party, and however turbulent and at times heartbreaking our political cycles may feel.

In exploring tonight’s topic I want to do three things.

First, I want to revisit what social democracy is, and how we can continue to uphold its values. It is important that now, more than ever, we hold clear in our heads what exactly we are talking about when we mention these things as part of the Labor project. Because, increasingly, whether we manage to maintain a successful social democracy will be the test of whether we can hold back the tide of resentment and dangerous populism in Australia. The rise of Trump shows that. I want to explore what we in the Australian Labor Party are today fighting to assert those principles against. Because the ideology of our political opponents is changing.

Our opponents here in Australia, the Liberal party, no longer resemble their US counterparts under Donald Trump. The Liberal party in Australia under Malcolm Turnbull remains fixed to neoliberalism as their guiding ideology – in the US, the election of Trump is a profound rejection of that. I want to explore how the election of Trump might impact on the politics of our opponents, and how it will inevitably affect us in Labor too.

In the second part of tonight’s address I will discuss some of the ways in which the pursuit of justice has been central to Labor’s vision for our nation.  As a backbencher, junior minister, Attorney-General and now Shadow Attorney-General, advocating for and implementing policies to create a more just nation is something I have fought for throughout my time in Parliament. It is also an area where I believe we do much, much better than our opponents.  So I will expand on tonight’s theme by examining some of the ways in which we in Labor have sought, in a formal or institutional sense, to implement our vision for a more just Australia.

Third, and finally tonight, I will briefly address the broader question of how Labor’s vision for justice extends far beyond institutional arrangements associated with our formal courts system, or quasi-judicial bodies like royal commissions. It is in the fabric of our being as a party. In doing this I will return to where I started this evening, by talking about how Labor’s vision must go beyond abstract ideas of “social democracy” and “justice” and be made real for everyday Australians, or we will lose the hearts and minds of our fellow citizens.

I: Social democracy, equality and Labor’s vision for Australia

So, when we talk about “social democracy”, what do we mean? 

At its heart, social democracy is a fusion of the principles of socialism, capitalism and democracy. It has been, I would argue, the most successful model for modern democracies in the post-war western world – or perhaps I would have argued that before last Wednesday.

It grew out of pragmatism – a recognition that exploding the old systems through revolution had failed, and that the best way forward was in using the foundations of the capitalist system but constraining and adjusting them with government interventions in the economy here and there. It is a recognition that the unfettered, free operation of the market does not always produce the best outcomes. That’s the “social” element.

The “democracy” element, of course, is about empowering everyday citizens within that system – giving everyone a vote, so that all have some ownership in how the system operates.

The ultimate aim of social democracy is to provide a more just, equal society than its pure capitalist counterpart. By deploying tools like redistribution of wealth through the tax system, public ownership of utilities, and a well-functioning welfare system, we get better outcomes. That is the theory. And so it has proved in practice, in Australia.

We in Labor understand that government, vested with authority and responsibility for the common good through democratic processes, has a fundamental responsibility to intervene in the market through laws and regulations in order to ensure that basic social services such as education, health care and aged care are available to all.

Our belief in the social democratic vision of a just society also underpins Labor’s deep and enduring relationship with the union movement. Because we hold that workers should be paid fairly for the work that they do, and that they should work under conditions that reflect our societal priorities, including that the workplace is safe.  Because we know all too well from our own history, and from what we see in countries around the world today in which there are neither unions nor effective government regulation of workplaces, that left to market forces alone, workers are drastically underpaid and conditions are so poor that workplace injuries and deaths are commonplace.

I am going to stick my neck out here, and say that I think Australia is one of the most successful social democracies in the world. We’ve worked hard to find the balance between pure market capitalism and intervention and we’ve managed to achieve a good balance. Our social democracy has given us world-beating institutions like Medicare and the NDIS – under constant ideological attack from this government – of which we should be immensely proud.

This achievement, I believe, is a primary reason why we in Australia have not yet witnessed the emergence of the destructive forces that have driven Brexit and Trumpism in the United Kingdom and the United States.

Make no mistake – what has happened in both of these countries, though in different contexts, is a failure of social democracy. It is of people feeling that they have been left behind, and left out.

In both countries, neoliberal ideology and the corrosive effect of inequality have undermined the social democratic system, dividing these nations into “haves” and “have nots” – and in 2016, the “have nots” have had their day. They have said “enough”. And they have used their power at the ballot box to express a wish to radically change the current system they’re living in.

Let’s look at the US particularly. Now, the US has always struggled with the “social” element of social democracy. This makes them very different from us. Just look at the battle President Obama had to wage in order to implement Obamacare – amid cries of “socialised healthcare” – a system which barely approaches a basic version of our Medicare.

Reaganomics had a huge and lasting impact in terms of creating inequality in the United States, which was brought to a horrific climax during the Global Financial Crisis. The recession which followed destroyed many jobs, while the banking elite mostly recovered and paid no price for bringing the world to the brink. That bred a resentment which was made manifest in last week’s vote.

There have been many attempts to draw parallels between the US and Australia since last week’s election result – including wild predictions that President Trump has opened the way to Prime Minister Bernardi or Hanson, for example. And let’s be clear – it’s in the interest of the right wing of Australian politics to promote this narrative.

I think it is something we should resist. In Australia, we are far away from the social and political context that gave rise to Trump.

Here are some of the reasons why. In the past 20 years the proportion of the population aged 25 to 34 with a tertiary education grew by almost 90 per cent in Australia - but it increased by just 30 per cent in the USA. Australia’s middle class holds 40 per cent of our national wealth – the American middle class, just 19 per cent.

In 1985 the Australian minimum wage was $5.66 AUD. By 2015 it was $17.29 – an increase of 11.2 per cent in real terms. In the USA the 1985 minimum wage was $3.35 USD an hour. By 2015 it was $7.25 – a decrease in real terms of 21 per cent. 

These are, I would argue, Labor achievements. They have come about through access to education, strong workplace laws, and a healthy union movement. We should be very proud of this. It’s the reason why the politics of resentment has not taken our own country captive.

But that does not mean we can be complacent. Certainly, Australia is not immune from the destructive force of inequality. In 2013 my Labor colleague and Shadow Assistant Treasurer, Andrew Leigh, published a book exploring inequality in the Australian context. Called Battlers and Billionaires: The Story of Inequality in Australia, Andrew demonstrates that while Australia has a tradition of egalitarianism that many Australians value dearly, in recent decades Australia has become significantly less equitable.

Let me give you just a few of the numbers highlighted by Andrew to demonstrate this point.  Since 1975, real wages for the bottom tenth of workers have risen 15 per cent, while at the same time wages for the top tenth have risen 59 per cent. In 2013 the richest 50 people in Australia had more wealth than the bottom 2 million people.

And despite our AAA credit rating and over 20 years of uninterrupted economic growth, by the end of the last decade more than two million Australians were living below the poverty line, including over half a million children. That growth has not been evenly spread.

These figures should be a wake-up call. Inequality will undermine our healthy social democracy too if we don’t do more.

The debate over housing affordability is a case in point. Next year, we will reach the point where home owners will be in the minority in Australia. This is a huge shift. At the last election Labor called for modest, prospective changes to the negative gearing regime that is part of the reason for our crisis in housing affordability in Australia.  They were the kind of changes Australians, particularly young Australians, are crying out for. The hysterical response of the Liberal Party to these sensible reform proposals gives some indication of their ideological loathing of the very concept of equity. I think former Liberal Treasurer Joe Hockey neatly encapsulated this attitude, when he gave advice that those who cannot afford a home should “get a good job that pays good money”. The subtext of that advice was pretty clear: If you want to buy a home and you are a police officer, a nurse, a carer, a park ranger, a teacher – then bad luck for you.  You should have been a banker. It’s exactly this kind of snobbery that the people who voted for Trump are rebelling against.

So how do we combat it?

We do everything we can to promote equality. We tack closer to the Labor ideals, of promoting the interests of the working and middle class, protecting the union movement, saving Medicare, and promoting housing affordability. We fight tooth and nail where needed.

But tone also matters. We see exactly the wrong kind of tone in that comment from Joe Hockey, and also from Malcolm Turnbull who thinks the solution to owning a house is to get your rich parents to shell out for you. That’s patronising.

We in Labor do better than any other party in engaging with our constituents. My colleagues and I are out there every day talking to people about what matters to them. We do not sit in our offices discussing Marxist ideals over cups of tea.

That hasn’t stopped our opponents trying to paint us as “inner-city latte sippers”; as the out-of-touch, intellectual elites. It’s a categorisation that has ramped up in the wake of the Trump election. We saw it last week in Malcolm Turnbull’s laughable attack on the ABC and “elite media”. And just today, Liberal MP Michael Sukkar wrote a ridiculous op-ed in the same vein. It is so ridiculous that it is worth quoting:

Like their powdered predecessors in 18th-century France, today’s elites — the new reactionaries — have a fatal weakness. They have stayed aloof from the bulk of the population — the “deplorables”, in Hillary Clinton’s memorable phrase; those who “cling to guns or religion” in the words of a rather more successful American politician.

The hypocrisy in this statement is overwhelming. The idea that the progressive side of politics is less in touch with “real people” than the right is laughable. Tell me, please, how fiddling with the Racial Discrimination Act is an issue that matters to people on the street. Tell me, please, how defending Bill Leak is more important than creating jobs and growth. Tell me how “agility and innovation” matters to someone who has just lost their job in the La Trobe Valley.

Please.

Although it seems laughable, we must work hard to ensure the right does not win this battle of words. If we let them paint us as an out-of-touch inner city elite, they will be successful in creating the sort of division that led to the election of Trump in America. We can’t let it happen.

How do we do that? Every day, we have to demonstrate it’s not true. We have to engage, not dismiss. We have to converse, not belittle. We have to get off Twitter and get back on the streets.

II: Justice and Labor’s Vision for Australia.

The other part of my speech topic, of course, is justice. And it is an area as shadow Attorney-General that I am very familiar with.

Social democracy, justice, and equality are closely intertwined. In fact, I would go so far as to say that justice underpins the other two. This is why – if you have a populace who feels that they are being hard done by, if the courts are not working for them, if they feel they’re not getting as good a run as wealthier citizens, social democracy and equality become meaningless terms.

Certainly in our current government’s worldview there is a role for ‘justice’ being meted out, Old Testament style, in the form of retribution for those who commit crimes.   

But justice as a value to guide broader social policy is rejected by the right wing of politics. Indeed, for many seeking to implement the neoliberal agenda, the values of justice and equity are anathema to their vision for a nation in which all good will miraculously flow from the operation of the markets and the unconstrained pursuit of profit.

That does not meet with Labor’s vision. As Attorney-General and as Shadow Attorney-General I have frequently advocated for improving access to justice in our nation.  In keeping with the broader value of justice within the social democratic ideal, I have argued that the concept of access to justice should be understood as far more than simply the ability of individuals to enforce their legal rights in court.  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 fair society justice should not be something individuals must constantly battle for.  Rather, courts should be a last resort, while justice should be the norm experienced by all Australians as part of our way of life.

I strongly believe that providing access to justice in this broadest sense, to all members of our society, is essential to strengthening the social democratic foundations of Australian society.  Under this expansive definition, ‘access to justice’ requires that we work to ensure that all Australians – and in some cases the institutions that constitute our civil society, such as independent statutory and non-government organisations engaged in public life – are empowered to participate in society with a high quality of social, civic and economic engagement. 

The Australian Human Rights Commission provides a good example of an institution that serves this purpose.  The vast majority of Australians will never make a complaint to the Commission themselves, but the work it does helps to set standards of human rights that are then enjoyed by all Australians. The sustained campaign against the Human Rights Commission by this government is disgraceful. They seem to think that ordinary conciliation processes – giving people the chance to have their differing opinions aired and a mutual agreement being reached – is somehow destructive to freedom. I find that view inexplicable.

In addition to building a just society in the general sense as I have just described, access to justice must also be available in the more specific sense, in that all Australians should be able to enforce or defend their rights within the legal system, if and when that need arises, regardless of means.  A ‘right’ that can only be enforced by the wealthy is really nothing more than an arbitrary privilege.  We know that legal advice and representation can be prohibitively expensive, and so recourse to the law is often out of reach for the less privileged members of our community.  Legal processes can be inaccessible to the layperson, and all too often, those most in need of the protections of the law might not even be aware that these protections exist.

For these reasons, government intervention to ensure access to justice in this formal sense is especially important for families and children in crisis, the sick, the elderly, our new arrivals, our indigenous communities and those accused of serious crime. 

Gough Whitlam and Lionel Murphy recognised the need for government to intervene to ensure access to justice for those who would otherwise be denied it when in 1974 their Government created the Australian Legal Aid Office, the precursor to the Legal Aid Commissions now operating in every state and territory.  Aboriginal and Torres Strait Islander Legal Services and, much later, Family Violence Prevention Legal Services, were established to serve the Indigenous peoples of this country with expert and culturally appropriate legal assistance.  Today around two hundred Community Legal Centres, more than one hundred and thirty of which receive some Commonwealth Government funding, have also been established to provide access to justice to those most in need.  These legal assistance services also provide crucial evidence-based research to the government to help drive reforms to improve our laws and the operation of the justice system.  Research conducted by the Productivity Commission has only further reinforced the net economic value of spending on legal assistance services, which dramatically reduce the cost to society that would otherwise be incurred through burdens including increased court administration costs and expensive additional incarceration.

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 Howard Government imposed savage cuts on legal aid across Australia. Chronic underfunding then continued for a decade while demand for legal services grew.  While Labor restored some funding to these four vital legal assistance services while we were in office, the gap between increasing need for legal assistance and reduced funding has created long lasting damage to the sector. The sector is again facing a 30 per cent funding cut on 1 July 2017, inflicted by George Brandis and this government.

In addition to presiding over the ongoing weakening of the legal assistance sector, Senator Brandis also changed funding arrangements to prevent community legal centres from performing advocacy or law reform work. It is clear that this government thinks publicly-funded legal services have little or no place in Australian society.

Very soon after coming to office, Senator Brandis completely defunded the eight Environment Defender’s Offices (‘EDOs’) that serve individuals and communities across our nation. These small and highly dedicated organisations provide legal advice and representation in public interest environmental matters, and work to improve our environmental laws. In this way, EDOs serve the long-term prosperity of our society by helping to ensure that companies abide by laws designed to protect our valuable natural heritage and the vital ecosystem services that underpin resources such as productive farmlands, and that governments make environmental decisions in a rigorous and scrupulous way.

Even the frequently anti-environmental administration of John Howard did not embark on such a blatant attack on environmental advocacy.  Needless to say, Turnbull has done nothing to reverse this decision made under former Prime Minister Tony Abbott.

Most of the EDOs have survived their defunding by the Abbott and Turnbull governments by turning to other sources of funding, particularly from the community and NGOs.  Despite being desperately short of resources they have continued their important work, including by demonstrating in court that some mine approvals granted by Environment Minster Greg Hunt were legally defective, forcing those decisions to be re-made by the Minister – this time in accordance with Australian law.  And what was the response of this government to these failings by one of its own ministers?  To launch a frenzied attack on these organisations and what was described as the threat of ‘lawfare’ and ‘vigilante litigation’ - an oxymoronic term if ever there was one. Under Abbott’s regime Brandis proposed changes to the law designed to greatly constrain the standing provisions in Commonwealth environmental law, in order to prevent EDOs from bringing legal actions that do no more than require the government and corporations to abide by those laws.  The Abbott Government was too busy reeling from its numerous policy and budgetary disasters to try to pass those laws, but Prime Minister Turnbull, in keeping with his now-obvious desire to do all he can to imitate Tony Abbott, has revived the push to gut environmental protection in Australia.  The fact that those laws were enacted by the Howard Government again speaks volumes of just how far to the right the Liberal Party of today has lurched.

If the services that provide access to justice continue to be attacked and diminished by the Turnbull Government and its appalling Attorney-General, our legal system will increasingly serve only the interests of the already wealthy and powerful, rather than our community and society as a whole.  Some would say this is precisely the Turnbull Government’s intention.  

The Royal Commission into Institutional Response to Child Sexual Abuse 

In 2013 the Gillard Labor Government established the Royal Commission into Institutional Responses to Child Sexual Abuse.  The Royal Commission is still completing its harrowing work, in the process of which it has heard from a huge number of witnesses who have suffered terrible injustices as victims of child sexual abuse.

I remain very proud of the work I did on that project.  Because in my view to bring an abuser to court can only provide, at best, a partial, and largely retributive kind of justice to the victims 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 the evidence before the Commission has also made 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 of course be brought to account for their crimes where that is still possible.  But as I have been arguing this evening, in Labor’s social democratic vision for Australia, justice is a value that must be embedded within our societal structures, rather than merely a remedy to be sought – if such a thing is possible – following the perpetration of an injustice. That is why this Royal Commission is playing a role that no court is able to.  Because only a Royal Commission can examine the systemic causes that allowed child abuse to occur at such a scale and for so long, and to make recommendations for changes that will, as far as possible, ensure that in future the most vulnerable members of our community, our children, are protected from the appalling injustice of abuse.

Once again, it is easy to see the contrast between Labor’s approach to justice in this context, and that of the Liberal Government.  It is true that the Abbott Opposition supported Labor’s initiative to set up the Royal Commission.  Politically it is very difficult to see how they could have opposed it. But I think we can learn far more from what we have seen since this Liberal Government came to power.  In particular, this Government has taken well over a year to respond to the Royal Commission’s recommendations for a national redress scheme for the victims for abuse.  And the response they have proposed is, in my view, still inadequate, because in the time taken to respond the Government seems to have done little to consult with the States to ensure they will join a national scheme.

And of course, when Abbott came to power he established not one but two royal commissions.  Neither of these inquiries was designed to address longstanding societal injustices that were beyond the capacity of the courts and law enforcement agencies to deal with, but rather, they were created to serve entirely partisan political ends. One of those royal commissions, which cost Australian taxpayers more than $20 million, added nothing to the eight earlier inquiries conducted into the same subject. In the case of the other royal commission, into unions, the political abuse of the royal commission was manifest in the use of coercive executive power for the purpose of trying to smear political opponents, including two former Labor prime ministers and the current Leader of the Opposition.

However I do acknowledge in this context that Prime Minister Turnbull showed much better instincts in establishing the Royal Commission into the abuses at Don Dale, notwithstanding Senator Brandis’s signature botching of its commencement.  It is sadly typical of Tony Abbott that he publicly criticised the establishment of that royal commission.  Perhaps it was just part of his extended job application for the Ministry of Indigenous Affairs.

III: A society founded in justice

Finally tonight, and by way of conclusion, I will return to where I began with the social democratic vision, and how justice as a value extends beyond institutional arrangements associated with the formal justice system, to inform Labor’s vision for our society as a whole.

As I said at the beginning of my speech, contemporary social democracy is a political, social and economic ideology that aspires to create, through democratic means, a nation founded in principles of equity and social justice, set within a capitalist economic system.  Principles that are at the heart of the social democratic vision which informs the Australian Labor Party’s policies today, including our policies in health, in the NDIS, in job creation, in workplace rights, in taxation, in superannuation, and in the vital sphere of education.

 And of course Labor understands that we must pursue our policy priorities within the constraints of economic realities, something that those to our left do not always acknowledge.

So where does this leave us, if we are to avoid the rise of Trumpism in Australia?

It is still early days in terms of looking for lessons. One thing to watch out for – early – is the reaction of our opponents. Trump’s victory has emboldened the far right wing of the Liberal-National party that caused so much grief for Australia under Tony Abbott’s rule, and Pauline Hanson’s One Nation Party. They think this is their moment.

Malcolm Turnbull has already been dragged to the right by these people thanks to the weakness of his leadership – and that was before Donald Trump. We must keep a very watchful eye now. And if he allows himself to be influenced further by the likes of Cory Bernardi and George Christensen, then we must hold him to account at every step, and we must not let him get away with it. Australia had its brief right-wing experiment under Tony Abbott and it failed, dismally. We will keep reminding our opponents of that lesson.

How about Labor? We have our own lessons to learn about being inclusive and listening to the concerns of real people, and not hiding it when we do it. We must do everything we can, now, to stop the wave of damaging populism reaching Australia. We should count ourselves lucky that it hasn’t yet hit, but it is only a matter of time if we don’t adjust.

Equally we must ensure we don’t ape the approach of Trumpists and the Brexiteers in our attempt to head them off locally. We must take steps in a positive, not negative direction. We must think big, and we must try hard.

But one thing is clear – the kind of neoliberal policies pursued by the Republican party in the US, the Conservative party in the UK, and the Liberal Party here have failed in a big way. They have left people behind, and that resentment is being expressed at the ballot box in a dangerous new form of populism.

If we are to avoid the same here, we must demonstrate every day how and why the Liberal Party’s neoliberal ideology is failing. As a party, we must not leave people behind. We must fight to protect a properly functioning social safety net, an inclusive society, and a functioning healthcare system. We cannot let the image of a country divided into “elites” and “others” catch on. We can all, always, do better. But Australia has managed to escape damaging forces which have enveloped our northern hemisphere counterparts before, like the global recession in the late 2000s. I have every reason to believe we can do so again. And if we do, it will once again be thanks to Labor.

Thank you.

ENDS