consensus and dissent in australia-justice michael kirby10th Annual Hawke Lecture Delivered by The Hon Justice Michael Kirby AC CMG This lecture marks a decade of Hawke Lectures. What began as a concept of the University of South Australia has done more than pay tribute to the legacy of Robert James Lee Hawke. It has also served to stimulate debate about the issues THAT ARE important for the future of our nation and the world. In a confident democracy we should constantly discuss such issues. Bob Hawke was a very successful politician. But he was much more than that. He has offered high intelligence and intellectual ability to all his endeavours. He played a part, happily continuing, in a wide range of national and international engagements. This lecture series reaches beyond partisan concerns. Of course, some people of all political shades see everything - even a grocery list - through the prism of party politics. Particularly so at election times. I reject that view of the world. The Hawke Lectures promote debate and serious reflection, beyond party politics. Otherwise the Governor, judges and public Party politics are important. But they are not everything. I live and work in a world where party political loyalties are not important, as such. Philosophies, values and ideas are critical. We all know that these do not always obey party alignments. They overlap and intersect. Even at election times, the world goes on. The big issues crowd in on us. So I leave partisan interpretations to others. I cannot join them in those games. I am proud to be the tenth person to give this lecture. It was another Kirby, Sir Richard Kirby, with whom Bob Hawke was to have legendary battles in the Conciliation and Arbitration Commission, where I was also to appear as a barrister. My first judicial appointment was as a Deputy President of that Commission. I was welcomed in December 1974 as Sir Richard's "son" - such are the conventional expectations of lineage in the law. As it happened, I was not a relative of Sir Richard Kirby, having (as I do) a perfectly good father of my own. Sir Richard told me that he did not mind being called my father - he drew the line at being called my grandfather. It was the Hawke government that appointed me to the Federal Court of Australia in 1983. That post came a year before my appointment as President of the New South Wales Court of Appeal. I have endeavoured to serve the law and the people of Australia faithfully under five federal governments since 1974 - three Labor and two Coalition. That service is continuing in the High Court, though as it is said in The Book: the end is nigh. Throughout his life, Bob Hawke has famously been driven by a desire to resolve conflict and, where possible, to reach consensus in responding to problems and challenges. He has shown this desire in a variety of arenas and across an array of topics, both in this country and abroad. He did so as a student; scholar; union official; advocate; diplomat; parliamentarian and, ultimately, as Prime Minister. In government, Bob Hawke strove to achieve a unique consensus; The most vivid example of Bob Hawke's approach to consensus was the industrial relations Accord. In it he endeavoured to involve all the key stakeholders, including the unions and employers, in resolving the challenges then facing the Australian economy. In his address to the National Economic Summit, following the 1983 federal election, he explained his approach: “If a genuine consensus is to emerge it must mean an understanding on the part of all sections of the Australian community of the constraints they will be called upon to accept and the contribution they will be called upon to make to the process of national reconciliation, national recovery and national reconstruction. It will mean a recognition and acceptance of restraint by all sections of the community. It must mean a recognition, a sense of realism, of what can be achieved in the near future. We must all understand that there can be no miracle cures, no overnight solutions. In a similar vein, he famously declared: “I think it is just stupid economics for a government to approach economic management from a strand of thinking regarding unions as enemies". In his highly successful Boyer Lectures in 1979, appropriately titled The Resolution of Conflict , Bob Hawke explained the principles that underlay his concept of consensus in Australian society. They were principles that probably encapsulated the experiences he had gained from his life to that time - most especially as an industrial advocate for the ACTU - working He spoke of creating a "greater degree of positive co-operation" to meet the economic, social, constitutional and international challenges facing Australia. He said: "co-operation can only be the product of understanding; confrontation and conflict are the inevitable and disastrous alternatives". He went on: "We need much more tolerance of attitudes genuinely held by groups or generations perceived to be out of kilter with our traditional mores. For Bob Hawke, this was not mere rhetoric. His words were written in September 1979, in the midst of tumultuous weeks in his life. The ACTU Congress, over which he had presided, featured a passionate debate over uranium mining. He reached the decision to nominate as a candidate for the seat of Wills for the 1980 federal election. Tragically, the death of his mother, Edith, who had nourished his talents and instilled in him a belief in his capacity to change the country for the better, all happened at this time. The sincerity of his yearning for the resolution of tensions and conflict by rational engagement, debate and discussion cannot be doubted. In the Boyer Lectures, in 1979, Bob Hawke spelt out his vision of how Australia could best move forward as a free and prosperous nation in a rapidly changing world. It was a kind of public manifesto. Our central institutions - Parliaments, courts and industrial tribunals - secured a kind of resolution, a type of consensus. However, they often did this by adversarial techniques of confrontation, partisan divisions, conflict and tension. Bob Hawke quested for a different means Today, almost 30 years on, much has changed. Of course, much has also stayed the same. Contrary to the recommendations contained within his Boyer Lectures, State governments remain in place in Australia and all of our Federal Ministers are still appointed from members of the Federal Parliament. None is appointed from outside as Bob Hawke favoured. Nevertheless, the core ideas contained in the lectures, now thirty years old, are well worth In my Hawke Lecture I want to explore the idea of community consensus. When is it appropriate to seek agreement or compromise? When should we stand up and robustly disagree? When is dissent a proper response? Some contemporary Australian writers have criticised what they see as a diminution of open public debate about legislation, policy, issues and THE IMPORTANCE OF CONSENSUS Of course, consensus does not always mean full agreement. Often, it will mean no more than majority compromise. Majoritarian consensus is pressed on us all the time, and for good reason. In the next few weeks we will embark on an election to choose the next federal government. By this process, we hold each Federal Parliament and Government accountable to the people of this nation. Despite the issues that divide us in the election there will be consensus over many things as the contenders try to narrow the targets and concentrate on the issues for popular choice on which they hope will secure them the winning edge. The new Parliament, once elected, will choose the new Government. It will do so by majority, not by consensus. In courts too, whenever there are important divisions, we act by majority. The recent important decision in the High Court, striking down an Amending Act of 2006 which disqualified all sentenced prisoners from voting in the coming elections was reached by majority, not consensus. Four Justices (Chief Justice Gleeson and Justices Gummow, Crennan and myself) held that disqualifying prisoners serving less than three years imprisonment was constitutionally invalid. Justices Hayne and Heydon dissented. There was consensus in the orders favoured by the Chief Justice and by Justices Gummow, Crennan and myself. But there the Court's consensus ran out. The democratic rule of the majority then had to be invoked. The majority opinion prevailed. As was their right and duty, the dissenting judges gave reasons why they differed and why they considered the difference was important. In recent times, in successive federal elections, the primary vote for each of the major Australian political parties has actually declined. Over the past five federal elections, a greater number of Australians (on average almost one in every five voters) now casts their first vote for independents or one of the minor parties. Accordingly, well over 50% (in some cases over 60%) of voters in Australia have cast their first preference for a party different from the one which is chosen to form the government. In 1990 when the Hawke Labor Government was re-elected, the Australian Labor Party received 39.4% of the primary vote. Likewise, the Coalition Government was re-elected in 1998 after the Coalition Parties received a combined 39.5% of the primary vote. In February 2002, preferences allowed Premier Mike Rann to form a minority government in South Australia after the ALP received 36.3% of the first-preference vote. Similarly, the Western Australia State election only a year earlier delivered a new Gallop Government although the Labor Party received 37.2% of the primary vote, an increase of only 1.4% on the vote that resulted in its defeat in the 1996 election. As pointed out at the time, that vote was, in turn, an increase of only 0.15% on its performance when the Lawrence Government was defeated in 1993. These developments represent a significant change in the degree of consensus about government expressed in the major political parties in Australia from what existed in the mid-twentieth century. Of course, in Australia, the distribution of preferences in an election is one way by which a kind of consensus is reached for a particular party or parties to govern. Thus, in the 1998 and 2001 federal elections, no fewer than 185 seats, in aggregate, in the House of Representatives required the distribution of preferences to determine their outcome. Although the final choice in elections may not therefore be everyone’s first choice, in this country, our elected representatives, when invited to form a government, necessarily govern for all Australians. They all say that this is what they do. Often it is what they attempt to do. The necessity to face the electors again at regular (and relatively short) intervals means that parties in government in this country frequently attempt to achieve the objectives important to them and their core supporters. Yet they also keep in mind the consensus that they need to forge with minor parties and independents. This is where political consensus over broad directions, principles (philosophies if you will) becomes very important. Without such consensus, spoken or unspoken, in today's Australia, neither of the major political groupings can win the Treasury benches. So our political system forces elected representatives to accept compromises and to work to discover the middle ground across a range of policy areas. Political consensus and bipartisanship are thus natural to a parliamentary democracy such as ours. Obviously, consensus will not always deliver perfect policies. Its object, we are reassured, is to produce acceptable policies, and laws and programmes that are tolerable, ie not unduly upsetting to the ever-changing majorities in the community that reflect their views in the ballot box every three or four years. CONSENSUS & DISSENT IN THE HIGH COURT As the final appellate court in this country, disagreement in the High Court is as inevitable as it is common. Our Constitution is often obscure. Statutory and constitutional language is often unclear. Finding the common law is far from an exact science. Special leave to appeal is rarely granted unless there is a reasonably arguable point in a case. This is why it is misleading to look simply at the rates of dissent and agreement amongst the Justices of the High Court. The surprising feature of the decisions of the present High Court is not that there are differences but (as commentators have suggested) that there are not more differing voices than mine amongst the other Justices given the major questions and inherent disputability of the issues commonly presented for the Court's decision. Judges may agree in the final result but disagree over the method and reasoning by which we arrive there. Or they may disagree as to the final result even though they mainly agree in the reasons of the other judges. On such matters, statistics disguise the nuances in the reasons of the judges, which is the way in which the law develops. What is true of the High Court, in this respect, is also true of the other courts in Australia. A dissenting opinion is described as an appeal to the future. In the United States, it can now be seen that the dissents of Justices Curtis and McLean in Scott v Samford (on slavery); of the first Justice Harlan in Plessy v Ferguson (on racial segregation); of Justices Roberts, Murphy and Jackson in Korematsu v United States (on wartime Japanese internment); and of Justices Black and Douglas in Dennis v United States (on anti-communist measures) redeemed the serious errors of constitutional decision-making in the majority opinions in those cases. The dissentients offered a beacon to a later, more enlightened, time when the errors of the majority would be acknowledged and corrected. There have been many powerful judicial dissents in Australia and in the United Kingdom, that have subsequently been adopted when new court majorities replace old majorities of different persuasions. For example, the dissenting reasons of Justice Gaudron regarding the constitutional corporations power in Re Pacific Coal emerged as the critical strand of reasoning of the majority of the High Court in the decision in the WorkChoices Case, a case that changed the constitutional basis for industrial relations law that had existed in Australia for more than a century. In my view (and I believe that of Mary Gaudron) her reasons were quoted out of context and for a different purpose. However, this is the way the law sometimes develops and changes. All those old battles that Bob Hawke fought in the Arbitration Commission and the courts over the meaning of s 51(xxxv) of the Constitution - battles concerning every word of that paragraph ('conciliation', 'arbitration', 'prevention', 'settlement', 'industrial', 'disputes', 'extending beyond … one State') - all of them now appear like ghostly galleons of a bygone age. The noble aspiration of settling such disputes before an independent arbitrator committed to a "fair go for all" has largely disappeared. A major social change in Australia in the machinery of achieving consensus in industrial disputes has been upheld. The change was endorsed by a new majority on the High Court, not by a consensus. I dissented as, for different reasons, did Justice Callinan. I hope that some of my own dissents on other issues, such as in Al-Kateb v Godwin; Re Aird; Ex parte Alpert; Combet v The Commonwealth and Thomas v Mowbray, for example, will one day enjoy the same happy fate. Such dissenting opinions reflect significantly different views about the meaning of liberty; the character and purpose of our basic institutions; the role of international law in our legal system; the maintenance of a limited role for the armed forces in civilian government; the use of the judiciary in controlling the executive; and the accountability of the executive to Parliament. In the law, as in life, disagreement can only be properly understood by someone when they know the reasons for the dissent. Sometimes, the issues are not easily simplified. Fundamental values and notions about our society may be at stake. In many cases, judicial dissent is critical to the honesty, transparency and good health of the institution concerned. Dissent is sometimes addressed to fundamental notions about the role and limits of government and economic power. Sometimes it concerns issues that are deeply felt and incontestably important to the long term health of society, such as respect for human rights. In such cases, at least in the independent courts, there is a limit to the extent to which the judges should struggle for consensus and compromise. Occasionally progress is only attained by candid disclosure of differences; by planting the seeds of new ideas; and waiting patiently to see if these eventually take root. ADAPTABILITY & CHANGE WITHIN CONSENSUS As another example, fifty years after the Wolfenden report in England (and thirty years after Don Dunstan in South Australia began our national process to remove the criminal laws against homosexual men) most of the countries of the Commonwealth of Nations retain the old British laws that target and punish gay men. In this, they enforce one of the least lovely relics of the British Empire. There may be a consensus throughout Africa to retain those laws. But such laws are plainly wrong and seriously unjust. We should not go along with them in silence because of the prevailing consensus. Sometimes a consensus needs to change. Sir Anthony Mason led the High Court of Australia as Chief Justice during a period which largely coincided with the Hawke Government in the 1980s and 1990s. If Australians had not lived for more than a decade under the Mason Court, they might be forgiven for thinking that Australian law was unbending and unchanging, like the laws of the Medes and Persians. That That had been the earlier consensus in the law and in the High Court. It was the law that I grew up with. It was unequal and unjust in the way it dealt with Aboriginal and other indigenous Australians. With women's legal entitlements. With Asian and other 'non-White' immigrants. With gays and other sexual minorities. With prisoners and people accused of crimes. With free speech and criticisms of the powers that be. Some of the changes to the ways in which law in Australia responded to these issues came about by public consensus: by alteration in political views and by laws enacted by Parliaments, federal and State. Some were fostered by media discussion. Other changes only gathered place when the independent courts broke the spell of the existing consensus and injected a new dynamic. In the case of women's equality, this came about, in part, because of international treaties. But let us never forget that equal rights for women in Australia was given impetus in Australia by the Equal Pay Decisions of the now often despised industrial tribunals. The same can also be said of Aboriginal rights. It was a hard-fought case in the Arbitration Commission that secured the first breakthrough in equal pay entitlements for Aboriginal stockmen in this country. It was not individual bargaining or workplace agreements that secured that change. Independent, fair decisions by industrial tribunals in cases brought by unions shattered the old consensus. They stimulated the building of a new consensus - one wiser and more just. Indeed, many of these decisions were won by the young Bob Hawke as industrial advocate. I often ask myself whether the Mabo decision in 1992 upholding the equal entitlement of indigenous Australians to legal recognition of their interests in land, would be decided by the High Court the same way today? Would the same basic right to legal counsel for unrepresented accused without means, facing a major criminal trial, upheld by the Mason Court in the Dietrich case (also in 1992) have happened today? Would it have occurred but for Justice Lionel Murphy's famous dissent that shattered the complacent legal consensus in his reasons in McInnis v The Queen. Would the High Court's insistence upon properly recorded confessions to police stated in McKinney v The Queen in 1991 have occurred today? Would the perception that our constitutional democracy necessitates limitations on legislative interference in freedom of the press have come without the Mason Court? Would we have overcome the past false claims o the 'sovereignty' of Parliament and recognised the constitutional protection of free speech without Justice Murphy's dissent in Buck v Bavone? It was Lionel Murphy who suggested that the terms and very character of the Australian Constitution implied rights to free expression essential to making our democracy work? These constitutional and other achievements were only notched up because a few lawyers and judges - at first in the minority - questioned the legal consensus? Despite occasional decisions like the recent prisoners' voting case, the answer to all of these questions of whether such cases would be answered the same way today seems to be: probably not. Yet who can doubt that these rulings of the Mason High Court on native title, or basic rights to legal representation, on guarantees of secure confessions to police and on the free speech were correctly decided? In retrospect, who can doubt that Australia is a juster, more equal, freer place because of these decisions of the Mason High Court? Australian citizens and Australian lawyers who know of these decisions of the Mason Court therefore know that law does not have to be unjust, out of date and unequal. It does not have to sustain unquestioningly the power of the past. Law can be modern, human rightsrespecting, equal in its treatment of minorities and attentive to the rights to equality of all individuals. For us in Australia, the Mason Court, with judges appointed both by the Fraser Government and the Hawke Governments, showed that law can be reconciled with justice; a new legal consensus can be built. Law does not belong to the few but to all the people. A FRESH CONSENSUS ON FUNDAMENTAL RIGHTS In my opinion, Australians generally tend to be ambivalent about such people. On the one hand our convict origins (in most of the States) make us all too willing to strike down tall poppies of orthodoxy and to object to people who get too big for their boots. Occasionally, in the safety of a distant retrospective, we may be persuaded to honour stirrers and troublemakers who challenged the orthodoxies. Generally, however, this only happens when these heroes are safely dead. Occasionally we rejoice in the unconventional. We say we like a larrikin. Bob Hawke's early life, for example, became the stuff of legends. The fact that he felt deeply about some issues touched Australians because we did too - as when he responded with unconventional generosity after the America's Cup win and, even more so, after the events at Tiananmen Square in 1989. Yet for all that, Australia is often quite a conventional society. In all probability a majority of us did not agree with Justice Lionel Murphy's aphorism, that Mr Neal, the Aboriginal activist, was entitled to be an agitator. Many, perhaps most, thought he should be locked up. Sitting in the High Court I see disparities and injustices from time to time. They do not become more acceptable because of the passage of years or even because many, perhaps most, fellow citizens never think about them, are not told about them by our media, are not concerned about them or are indifferent to injustice and basic inequality. I know from my own life that inequality hurts. You can rise high in Australia. You can hold great offices. But if your human dignity is not respected and if you are treated unequally by the law, it is hurtful to you and your family and friends. It is wrong. If inequality that is the product of consensus in Australia it needs to be changed. In a country of the "fair go all round", injustice and inequality need to be cured. I am glad that His Excellency the Governor invited my partner of thirty-eight years, Johan van Vloten, to Government House today and that the Hawke Centre included him in the invitation to be with me on this occasion. His brother Frits van Vloten has come along. He is in Australia from the Netherlands for a short visit. He wanted to see how inclusive and egalitarian our society in Australia really was. Johan now attends many such functions with me. Everyone is getting used to it. Well, almost everyone. In the long run in Australia, most wrongs will probably be cured. Of course, in the long run all of us are dead. Sometimes change requires example and a bit of stimulation. In a society such as ours, that stimulation can come, from the three year electoral cycle and from parliamentary debates. It can come from media discussion and civil society agitation. But it can also occasionally come from court decisions. Courts are sitting all the time. Ever day, they are deciding big and small cases according to law and justice. Courts cannot cure all wrongs. But the Mason Court in Australia showed that they can cure some. And with new legal implements, they could cure others. The time has come in Australia to strive for a new consensus on one subject. I refer to the rights and freedoms that belong to all Australians. Truly, this is a subject worthy of an attempted national consensus - an agreement about fundamentals that we place above politics. For well over two centuries, the United States of America has had a constitutionally entrenched bill of rights. Other countries have also moved, many in recent times, to guarantee the protection of human rights by incorporating basic rights in their national constitutions and local law. Sometimes they have done this by requiring the use of international human rights law when interpreting the provisions of local law55. Sometimes they have done it by enacting a statute of rights to forge a new consensus on such things. The Human Rights Act 1998 of the United Kingdom is a case in point. It has now been in operation for seven years. The last decade has seen similar laws enacted in Australia both in Victoria and the Australian Capital Territory. An equivalent law is now under consideration in Western Australia. In the light of all I understand the resistance in some circles to adopting a statute of basic rights. I was raised in a legal culture strongly resistant to such notions. I am not disrespectful to elected parliaments. I spend most of my professional life striving to give effect to the purposes of their legislation. For me, the words of Parliament are always the starting point to resolving any legal problem. I respect, and uphold, the powers and privileges of Parliament. I certainly do not advocate a statute of rights in Australia because it would gain us credit overseas or secure more attention to our judicial opinions. I agree, that these are irrelevancies. Nor is the fact that Australia is now the only advanced western country without such laws alone enough to persuade me to adopt them. Our national decision in 1951, refusing to ban the Australian Communist Party and to take away the civil rights of communists was out of step with decisions taken in other countries at the time. Yet it was right. I do not advocate a constitutional Bill of Rights for Australia with an effect that would invalidate inconsistent parliamentary laws. This is unlikely to be adopted in Australia because changing the Constitution is nearly impossible. In any event, a statute of rights is the way that countries with legal systems closest to our own - New Zealand, Canada and Britain – have The model that is now before us in Australia, for a statute of rights, is the "softer" one. It was adopted in legislation in New Zealand and also in the Human Rights Act 1998 (UK). It gives no authority to courts to invalidate Acts of Parliament because judges find them contrary to the stated rights. Essentially, such a law works on two principles only. It encourages courts wherever possible to interpret laws made by Parliament so that they do not breach the stated fundamental rights. And where this technique of interpretation does not bring the law into conformity with such basic rights, it permits courts to draw the disparities to parliamentary and public attention. This is done on the assumption that Parliament will then proceed to address the inconsistencies one way or the other. In effect, it provides a stimulus to the democratic process. It encourages us all to think in terms respectful of the basic rights of one another. It promotes a culture of mutual respect of basic rights. But it leaves the last word to elected parliaments, whilst rendering them and their processes transparent and promoting vigorous public debate on such matters. One South Australian judge, and a good friend, hearing that I was giving this lecture, wrote to me and expressed surprise that "the great dissenter", as he put it, was going to give this lecture for "the great consensus builder". By this lecture tonight I have tried to respond to his surprise. It was based on a stereotype. It is a stereotype that is neither fair to Bob Hawke nor to me. In the vast majority of cases, over the years, I have agreed with my judicial colleagues. Bob Hawke, as I have shown, never pressed for consensus as a goal to be achieved at all costs. In his life in industrial relations and in politics, he fought hard for the things that really mattered to him and to those with whom he worked in a common cause. He knew that differences are sometimes inescapable and that, occasionally, the time is not ripe for consensus or the differences too fundamental. The key to his beliefs is one that I too would accept. It is to strive for consensus on subjects that matter. But to recognise that there are other subjects that will inevitably divide us. The secret of success is to know the difference between the subjects and occasions suitable for consensus and those that are not. It is also to recognise the differences in our institutions and the way they reach their decisions on such matters. So far, we have got by in Australia without collecting and stating the fundamental rights of the individual that we will respect in this nation. We have done so largely because, until quite recently, we were a relatively homogeneous society mostly facing relatively benign challenges. In the future, we will become even more diverse and polyglot than we now are. We will face greater challenges. Now is therefore the right time to forge a national consensus about the basic rights that we promise to uphold and that we expect our elected lawmakers to respect. If we can find a new consensus on our basic rights, Bob Hawke's legacy, and his instruction about the centrality of consensus in truly essential things in Australia, will be borne out. We will place basic rights above the partisan squabbles. We will give the courts new powers, but not too many. We will reserve the last word, as we should, to elected parliaments. We will enhance public debates about fundamentals - and the type of society we really want to be. We will distinguish between the proper place of consensus and the proper place of dissent. I congratulate the University of South Australia on the opening of the new facilities for the Bob Hawke Prime Ministerial Centre. By honouring our past leaders, we honour ourselves and our nation's history. My partner, Johan van Vloten, and I, as Australian citizens, are proud to be associated with these notable events. However, buildings ultimately matter less than ideas – much less. Bob Hawke's idea of consensus is one that has influenced the Australian community for thirty years. The time has come to forge a new consensus on a national statute of rights. It would be a consensus on something that really matters for us all. To our father's fathers UNIVERSITY OF SOUTH AUSTRALIA |