THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
‘LAWYERS AS CHANGEMAKERS’
SIR ZELMAN COWEN CENTRE
I acknowledge the traditional owners of the land on which me meet this evening, the Wurundjeri people of the Kulin Nation, and pay my respects to their elders past and present. I also acknowledge Aboriginal and Torres Strait Islander people here with us tonight.
I would like to thank Nyadol Nyuon, the Director of the Sir Zelman Cowen Centre here at Victoria University, for inviting me to speak today. It is a particular honour to speak on the life and legacy of the late Sir Zelman Cowen.
It is a tribute to Sir Zelman that so many are gathered here to honour him.
I thank you for attending.
I also acknowledge:
Steve Bracks, Chancellor of Victoria University;
Professor Adam Shoemaker, Vice Chancellor of Victoria University;
Members of Sir Zelman’s family;
Members of the Advisory Board of the Sir Zelman Cowen Centre
Members of the legal profession;
Staff and students of Victoria University;
And the many other distinguished guests who are present.
I had the great privilege of meeting Sir Zelman on many occasions.
His generosity, wit and intellect were always evident.
He was the patron of my football team, the St Kilda Football Club.
He was an active participant in Melbourne’s Jewish community, and I would see him, from time to time, at community events and at Temple Beth Israel in Melbourne. It was the synagogue where his father, Bernard, had been president. It was where he married his beloved wife Anna, and it was where his state funeral was held in December 2011.
Last year, many gathered at Temple Beth Israel for the funeral service of Lady Anna Cowen. Lady Cowen married Sir Zelman in 1945 and became an extraordinary public figure in her own right. She was, as Peter Wertheim, the co-CEO of the Executive Council of Australian Jewry, described her, “a passionate proponent of gender equality and environmental sustainability, long before these causes became mainstream”.
Following the Second World War, a very special generation of legal academics emerged in Australia. Sir Zelman Cowen was one of these academics who assumed leading roles, not just in academia, but in broader public life. Former High Court Justice Michael Kirby has referred to Julius Stone in Sydney, Geoffrey Sawer in Canberra and Zelman Cowen in Melbourne as a trinity of Australian law teachers who had a “mighty impact” on our public life.
Sir Zelman was a prodigious scholar and public intellectual. He was instrumental in changing how Australian law schools worked.
After becoming Dean of the Melbourne Law School in 1951 – at the age of 31 – Sir Zelman reflected on the culture of scholarship he had experienced in his time at leading American law schools and pivoted the Law School away from the purely vocational emphasis of its past. As Dean he hired full-time teachers, and encouraged postgraduate study and serious, dedicated scholarship.
Sir Zelman created the Melbourne University Law Review, which is now one of Australia’s leading generalist law journals. Almost all law schools across Australia followed his lead over the next few decades. Sir Zelman also paved the way for legal academics to participate in a broader national life – beyond the navigation of legal doctrine and in a new, and changemaking, role in Australian society.
As Dean of the Melbourne Law School, and then Vice-Chancellor of the Universities of New England and Queensland, Sir Zelman Cowen was a leader in legal academia who made a lasting difference.
Among the many contributions that Sir Zelman made to Australia over the course of his extraordinary life was to write an excellent biography of Sir Isaac Isaacs.
As some of you would know, I am the Member for the Division of Isaacs.
Isaacs was the first Australian-born Governor-General, appointed, not without controversy, on the recommendation of Prime Minister James Scullin against the wishes of the King.
A paper by John Waugh in the Melbourne University Law Review on Sir Zelman’s biographical works says this about Sir Zelman’s relationship with Isaacs:
Cowen wrote: ‘that it is not possible really to penetrate the mystery of the man’s personality; that often his attitudes can be described but not explained’. Perhaps, having considerable charm himself, Cowen was somewhat puzzled by a person who completely lacked it.
Isaacs was also Australia’s first Jewish Governor-General.
Ten years after the publication of his biography of Isaacs in 1967, Sir Zelman became Australia’s second Jewish Governor-General, appointed by Prime Minister Malcolm Fraser following the resignation of Sir John Kerr.
It is hard, from the distance of almost 50 years, to comprehend the magnitude of the task that confronted Sir Zelman upon his appointment.
His predecessor had done profound damage to the office of Governor-General by dismissing Prime Minister Gough Whitlam. Those of us attracted to the quaint idea that elected governments should not be removed on the whim of an unelected official representing a similarly unelected monarch, believed then – and still believe – Kerr wreaked great damage on Australian democracy.
It’s not too much of a stretch to say Sir Zelman saved the office of Governor-General – not least of all because, as Governor-General, he helped heal some of the divisions that Kerr’s assault on our democracy had caused.
Sir Zelman made an outstanding contribution to many areas of public life. Tonight I want to focus on constitutional reform.
Later this year, Australians will vote in a referendum to recognise the First Peoples of Australia by enshrining an Aboriginal and Torres Strait Islander Voice in the Constitution.
Referendums do not happen very often in Australia.
One of the trinity of scholars Michael Kirby referred to, Professor Geoffrey Sawer, famously declared in 1967 that Australia was, constitutionally speaking, a frozen continent.
If our continent was considered constitutionally frozen in 1967, it is now at risk of becoming permafrost.
In 1967, Australia was successful in achieving meaningful, considered constitutional reform as 90 per cent of Australians, and a clear majority in each state, endorsed two amendments to the Constitution relating to Aboriginal and Torres Strait Islander peoples. It was in fact Sir Zelman who produced the ‘Yes’ case for ABC television in the lead up to the 1967 referendum.
A decade later, in 1977, Australia voted in our last successful referendum. This constitutional change reformed provisions relating to casual vacancies in the Senate, allowed citizens of Australian territories to vote in referendums, and imposed a mandatory retirement age on federal judges. This was a successful exercise in popular constitutional reform, although it should be noted that one further proposal for simultaneous House and Senate elections failed to carry a majority of states and was defeated.
Since 1977, eight proposals have been rejected by the Australian people, underscoring the challenge of changing the Constitution.
THE REPUBLIC REFERENDUM
Sir Zelman was a public supporter of an Australian republic. His typically erudite memoirs reveal that his position on this issue of constitutional reform evolved over time. He first publicly stated his support for a republic in 1997, a decade and a half after the end of his time as Governor-General.
Sir Zelman had written about monarchy and the republic since the mid-1960s. Originally, he took the view that Australia was independent in substance and constitutional reform was not necessary. His views evolved upon returning to Australia in 1990, telling the nation that the head of state needed to be ‘one of us’. This change in view was shaped not just by Sir Zelman’s background in the law, but by his understanding of the Australian community.
As Governor-General and in the years following his term, Sir Zelman was renowned for his public speaking prowess. His speeches aimed, in his own words, to ‘interpret the nation to itself’. It is no surprise that when the republic debates in the 1990’s arose, Sir Zelman was able to bring ‘a touch of healing’ to a divided nation, just as he had to his term as Governor-General. In many speeches, Sir Zelman advocated for an Australian president chosen by special majority in the Parliament.
Sir Zelman thought Australia’s national journey was not complete without an Australian leader and official independence from the United Kingdom. A sense of self for Australia as an independent nation was just as important to Sir Zelman as what was written in the Constitution.
As we are all aware, the 1999 referendum for a republic was unsuccessful. Every jurisdiction rejected that proposal except the Australian Capital Territory, and nationally it was unsupported by 55 per cent of electors. It did not even come close to reaching the double majority required by section 128 of the Constitution.
This failure followed the rejection of much more modest proposals for constitutional change in 1984 and 1988. A proposal to prohibit gerrymandering was defeated in 1988 in every state and by more than 60 per cent of electors nationally. Similar proportions of Australians voted against more effective rights to religious freedom and trial by jury. Almost two thirds of voters nationally rejected the constitutional recognition of local government.
Constitutional change is hard. Hard, but necessary.
I believe the Constitution is a living document. I mean this in the sense that it should be amended from time to time as Australia evolves as a nation.
This was also the view of the Founding Fathers.
The chief author of the Constitution, and former Attorney-General of Tasmania, Andrew Inglis Clark, 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, who were also essential in drafting and educating the Australian people about the Constitution, made similar comments. In their famous annotations to section 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 section 128 was not designed to prevent change, but to encourage careful scrutiny, debate, and decision-making in constitutional matters.
The Constitution was never intended to stand stagnant for all time. If it were, it would not include a mechanism to alter it. As Australians, the power to alter the Constitution is part of our political inheritance. We should not accept as part of our political culture a reflexive opposition to constitutional reform.
Today, no Australian voter 63 years of age or younger has participated in a successful referendum. No voter under the age of 42 has participated in any referendum whatsoever.
As Sir Isaac Isaacs once said, constitutions are made not for the moment of their enactment but for the future. We all have a responsibility to be aware of the Constitution and its importance. It is we, the Australian people, who are ultimately responsible for maintaining and amending the Constitution to meet the changing and growing needs of our nation. This year, the Australian people will be asked to vote in a referendum to recognise the First Peoples of Australia by enshrining an Aboriginal and Torres Strait Islander Voice in the Constitution. It’s an historic moment in Australia’s journey to reconciliation. It is not an easy journey – as I have said already, changing the Australian constitution is hard – but I am confident that Australians will embrace this opportunity.
I want to take this opportunity to say a little more about the upcoming referendum and the amendment that will be put to Australians. On 30 March 2023, the Government took the first formal step towards enshrining an Aboriginal and Torres Strait Islander Voice in the Australian Constitution by introducing the Constitution Alteration Bill into the Parliament. After I introduced the Bill, the House of Representatives and the Senate agreed to establish a joint parliamentary committee on the referendum.
The Committee process allowed Australians, including First Nations people, the chance to make formal submissions on the proposed constitutional amendment and the question to be put to the Australian people. The Committee recommended that the Bill be passed without amendment.
The Bill was passed on 19 June 2023, and the Prime Minister has said the referendum will be held between October and December this year.
The proposed constitutional alteration would insert a new chapter into our Constitution, chapter ‘nine’. Chapter nine would insert a new section, section 129.
The proposed change to the Constitution is a powerful marker of our respect for the First Nations peoples of Australia, their cultures and their elders past and present.
The introductory words of the proposed amendment read: ‘In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia’. These words reflect the fact that establishing the Voice is an act of recognition, in the manner delegates sought in the Uluru Statement from the Heart in 2017.
Enshrining the Voice in the Constitution would recognise Aboriginal and Torres Strait Islander people as the First Peoples of Australia in our nation’s founding document for the first time.
The Voice would complement the existing structures of Australia’s democratic system and enhance the normal functioning of government and the law. It would be an independent institution that speaks to the Parliament and the Executive Government – it would not replace, direct or impede the actions of either.
Enshrining a Voice in the Constitution would ensure that it is an enduring institution that can represent the views of First Nations peoples.
In 2009, when speaking about addressing the significant disadvantages faced by Indigenous Australians, Sir Zelman said ‘we have still got some way to go’.
He was right then. It remains true today.
The last line of the Uluru Statement says this:
‘In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.’
This seminar series is titled ‘Lawyers as Changemakers’. Lawyers are not the originators of the current constitutional alteration proposal, but they have played a very significant role in its development. I take this opportunity to thank the Solicitor-General, Stephen Donaghue KC, and the many fine constitutional lawyers in the Attorney-General’s Department for their work. And I thank the many eminent constitutional lawyers from outside government – including former High Court judges, legal academics and senior barristers – who have lent their expertise to this process.
I hope lawyers will play an even more significant role in the coming referendum campaign. I note and welcome support for change from the Law Council of Australia and the Victorian and New South Wales Bars. Lawyers have the opportunity to embrace the invitation contained in the Uluru Statement and walk with First Nations people in a movement for a better future. I encourage lawyers in this room and beyond to lend their public support to the constitutional alteration and help change Australia for the better.
Finally, let me return to Sir Zelman and his legacy.
As a lawyer, scholar, educator and statesman he is without peer.
He had a very strong connection to this university – as Distinguished Visiting Professor, Chair of the Victoria University Foundation, and later Inaugural Patron.
Victoria University is one of many beneficiaries of Sir Zelman’s commitment to a better society.
A lawyer, yes, and a changemaker too.
The work of the Sir Zelman Cowen Centre, especially its focus on law and diversity, is a fitting tribute to a great Australian whose long life enriched the nation and whose legacy is enduring.