Sir Zelman Cowen Lecture 2015

I would like to thank the editors of the Melbourne University Law Review for inviting me to speak here tonight. It is always a particular honour to be invited to return to my alma mater the Melbourne Law School.

THE HON. MARK DREYFUS QC, MP

SHADOW ATTORNEY-GENERAL

MEMBER FOR ISAACS

SIR ZELMAN COWEN ADDRESS 2015


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I would like to thank the editors of the Melbourne University Law Review for inviting me to speak here tonight. It is always a particular honour to be invited to return to my alma mater the Melbourne Law School.

It is a particular honour to speak at an event named after Sir Zelman Cowen. I have been very pleased to see in recent years a proliferation of events dedicated to the memory of Sir Zelman.

A month or so ago I received a letter from the Australasian Union of Jewish Students inviting me to their “Sir Zelman Cowen Memorial Oration”, delivered this year by none other than the Hon Robert French AC, Chief Justice of Australia. I must say I feel very intimidated by this level of competition.

Sir Zelman was part of a very special generation of Australian legal academics who in the wake of the Second World War assumed leading roles not just in academia but in broader public life.

Former Justice Michael Kirby has referred to a “Trinity” of such academics: Julius Stone at Sydney University, Geoffrey Sawer at the Australian National University and Sir Zelman Cowen at Melbourne.

Each of these men were born in the first two decades of the last century, though Cowen was the youngest and was in fact taught by Sawer at this law school. They came of age as scholars just as the legal academy itself emerged in its current form.  

Up until the middle of the last century Australian law schools were very different creatures than they are today.

Classes were taught, in the main, by practising barristers, and legal education was seen almost exclusively as a path to practice. Law was in those days very much a vocational study.  So closely enmeshed was legal education and the practising bar that the Sydney Law School had its own site on bustling Phillip St, the home of the courts and the Bar, a far cry from that university’s leafy campus in Camperdown. Here in Melbourne, classes were held in the old quadrangle, but meetings of the faculty were often held in the chambers of one barrister or another in the city. 

Cowen was instrumental in changing all of this. After becoming Dean of the Mebourne Law School in 1951, he transformed this institution, borrowing in large part from his experience of leading American law schools. Cowen not only hired full-time teachers, but he encouraged postgraduate study and serious, dedicated scholarship. Of course, one particular innovation Cowen borrowed from the Americans was the idea of a student-edited journal. As Dean, Cowen established the Melbourne University Law Review – under whose auspices we meet tonight.

These changes, and similar changes at other law schools, paved the way for legal academics to play a new role in Australian society, to look beyond narrow questions of interest only to practitioners and to participate instead in our broader national life.

Cowen set an imposing example. He was a prodigious scholar and public intellectual. As dean here in Melbourne, and then Vice-Chancellor at the Universities of New England and then Queensland, he became a leader of his profession. And of course, as Governor-General in the wake of the tumult of the Whitlam period he was a dedicated and highly successful public servant.

Others have taken up this mantle. Another alumnus of this law school, Professor Gillian Triggs, for example, is the very model of a legal academic committed to public service. Quentin Bryce, who started her career at the University of Queensland’s law school when Cowen was Vice-Chancellor of that university, followed Cowen into the highest office in the land.

I hope that students of the Melbourne Law School, including of course the students who serve on the editorial board of this law review, are inspired by these examples. More than ever, graduates of this law school and others around the country now go on to careers other than the practice of law. Many of you will go on to enter public service in various guises. Some of you will enter state or federal bureaucracies, or international organisations or NGOs. In all of these fields, your legal education will stand you in good stead to make a great contribution to the public sphere.

 

I mentioned Quentin Bryce a moment ago, and there is more one more commonality between Professor Bryce and Sir Zelman. They are, to my knowledge, the only Governors-General of Australia to have openly supported an Australian republic – the most significant reform of our Constitution ever seriously canvassed – though Sir Zelman records in his memoirs that his position on this issue evolved over time. He first publicly stated his support for the republic in 1997, a decade and a half after the end of his time as Governor-General.

Of the many areas of Australian public life in which Sir Zelman made an outstanding contribution it is this, the reform of our constitution, which I want to focus on tonight.

The reform of our constitution is an area of public debate to which the next generation of lawyers and legal scholars are uniquely placed to contribute, and it is certainly a matter which requires urgent and dedicated attention. Our constitution must be a living, relevant document if our polity is to continue to flourish, and yet the task of maintaining it has often been neglected. Those serious efforts which have been made in recent decades have, without exception, failed.

Professor Geoffrey Sawer, another of the “Trinity” Justice Michael Kirby referred to, once famously declared that Australia was “constitutionally speaking … a frozen continent”.

Indeed our Constitution has become even more static since then. In 1967, the year in which Sawer wrote, Australia conducted its most successful ever exercise in constitutional reform as 90% of Australians, and a clear majority in each state, endorsed two amendments to the Constitution relating to Aboriginal and Torres Strait Islander peoples. Less momentously, a decade later we voted to update provisions relating to casual vacancies in the Senate, to allow citizens of Australian territories to vote in referendums, and to impose a mandatory retirement age on federal judges. Many sprightly judges still bristle at this last one. Nonetheless, this was a successful exercise in popular constitutional reform, though one further proposal for simultaneous House and Senate elections failed to carry a majority of states and was defeated.

If the continent was considered constitutionally frozen in 1967, it is now at risk of becoming permafrost.

Since 1977, eight proposals have been rejected by the Australian people. Most of them resoundingly so. There was, of course the defeat of the republican proposal in 1999. At the time, the now Prime Minister Malcolm Turnbull described this, rightly, as as a national heartbreak. That proposal was defeated in every jurisdiction except the Australian Capital Territory, and rejected by around 55% of electors nationally – not even close to the double majority required by section 128 of the Constitution.

But this was a very significant proposal for change – the most radical in our history by far. The failure of much more modest proposals under the Hawke Government presents even clearer symptoms of our constitutional deep-freeze. At the 1984 and 1988 referendums, much more prosaic proposals were rejected even more resoundingly than the republic would be. A proposal to prohibit gerrymandering was defeated in 1988 in every state and by more than 60% of electors nationally, for example. That same year, similar proportions of Australians voted to deny themselves more effective rights to religious freedom and trial by jury. Almost 67% of voters rejected the constitutional recognition of local government.

It is traditional to lay the blame for this history of failure on the terms of section 128 of the Constitution, and the double majority it requires.

This is mistaken on two counts.

First, it is clear that some looser formulation of s 128 would have made the difference between success and failure only rarely in our history. Of the 36 unsuccessful referendum proposals since Federation, 31 still would have failed were only a simple majority of electors required.

More importantly, though, it is wrong in principle. Australian governments may not blame their failures on insufficient popular support. In a democratic system the people may not, in the sardonic phrase of the East German Bertolt Brecht, lose the confidence of the Government. Indeed it is those proposals seen, rightly or wrongly, to advance the interests of a supposed Canberra elite that are most reliably defeated, a fact that those framing the “No” case to any given proposal are keenly aware of.

No, the problem is not section 128. It is not really a problem of constitutional law at all, but a problem of politics and political culture.

That problem is encapsulated in the peculiar manner the former Prime Minister Mr Abbott had of speaking about the proposal to recognise Australia’s indigenous peoples in the Constitution. Mr Abbott, to his credit, was genuinely committed to this project of Indigenous recognition. However, when discussing that proposal, he made a habit of speaking not of changing the Constitution but of 'completing' it. Mr Abbott suggested that once Indigenous recognition was achieved, there would be no further work to be done on our Constitution.

This may have been politic – and I recognise Mr Abbott’s difficulty in winning the support of conservatives for Indigenous recognition – but it is wrong in principle, and we should say so. In a parliamentary democracy such as Australia’s, it is a nonsense to speak of ‘completing’ the Constitution. Though the Constitution is, of course, an enduring foundation of our national life, it can and must adapt and be adapted to our changing society.

It is an anomaly of our politics that to speak of the Constitution this way – as a living document which we should and must amend from time to time – is seen as a ‘progressive’ posture. It is nothing of the sort.

This is if anything a conservative, thoroughly orthodox position in a country where the principle of parliamentary sovereignty is honoured.

It was certainly the view of the Founding Fathers themselves. Andrew Inglis Clark, the chief author of the Constitution and a figure far too often overlooked, said in 1901 that the Constitution:

‘… must be read and construed, not as containing a declaration of the will and intentions of men long since dead … but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document.’

 

Sir Robert Garran and John Quick, two men who were also intimately involved with the drafting of the Constitution, made similar comments in the commentary to the Constitution they published shortly after Federation. In their annotations to s 128, they explained:

‘A Constitution may be compared to a living organism. It is not in the nature of a living organism to remain monotonously the same from year to year and from age to age. As with individual units, so with nations, change is one of the laws of life. The Constitution of a nation is the outward and visible manifestation of its national life, to the pulsations of which it necessarily responds.’

They were clear that s 128 was not designed to stymie change, but to encourage careful scrutiny, debate, and decision-making in constitutional matters.  

Of course, we should show caution in amending our foundational legal document.

 

But we must resist any suggestion that the Constitution is intended to stand for all time or that its framers and the Australian people who endorsed it were any wiser than Australian parliaments and Australian voters are today. These are notions imported from other countries, most notably from strands of conservative opinion in the United States of America.

 

Whatever their currency there, these ideas have no relevance to our constitutional system in Australia. As Australians, the power to alter the Constitution is part of our political inheritance. Indeed, it is our obligation. We should not accept as part of our political culture a reflexive opposition to constitutional reform.

 

As Governor-General, Sir Zelman was famed as a ‘healer’. His steady hand and unimpeachable integrity went a long way towards rehabilitating that office, which had been tarnished by the Dismissal – no matter your political view of those times. Sir Zelman, a student of the Australian Constitution, was tasked with rebuilding faith in one of its core institutions, and so he did. He succeeded, as far as anyone could have, in rebuilding the community’s confidence in our constitutional arrangements.

 

Today, after decades of failure, we must likewise rebuild confidence in our ability to debate constitutional matters and to succeed in altering our Constitution at referendum. No Australian voter today 55 years of age or younger has participated in a successful referendum, no voter under 35 has participated in any referendum whatsoever.

 

Success is within our grasp. The stars have, in some senses, aligned.

 

Labor has always been committed to constitutional reform, and our support for Indigenous recognition and for the Republic are inscribed in the Platform that the Opposition Leader Bill Shorten will take to the next election. More unusual is that the present Liberal Prime Minister is a committed constitutional reformer too. Indeed, one of the most prominent of recent decades. His Deputy, too, is a republican.

 

Further, we are on track to put to the Australian people within the next parliamentary term a proposal for Indigenous recognition in our Constitution. Though we must get the detail of the amendment and of the question right, the merit of this proposal is to my mind beyond question. There is a compelling symmetry to this proposal – its success would be the correction of the most egregious failure of those who drafted our Constitution more than a century ago.

 

What’s more, with some adept leadership from across our body politic, the recognition proposal is capable of attracting a level of support from Australians of all backgrounds not seen since 1967. It is my sincere hope that far from representing the ‘completion’ of constitutional reform in this country, such a success would in fact represent a new beginning. 


THURSDAY, 24 SEPTEMBER 2015