Labor Lawyers: The First Ten Years 1974-1984

Address to the 50th Anniversary Dinner, Victorian Society of Labor Lawyers, Melbourne, 15 June 2024

The early 1970s were heady times for lawyers and would-be law reformers. The election of the Whitlam Labor Government in 1972, and in particular the explosive arrival on the scene of Lionel Murphy as Commonwealth Attorney-General, ignited in a whole cast of lawyers – especially of my then-young generation – a sense of the art of the possible, which had gone missing almost completely through the desolate 23 years of Tory rule in Canberra, and 17 years (and still counting) in Victoria.

It's important to remember – as I’ve been reminded in particular by John Howie, who has been a tower of strength in the whole Labor Lawyers enterprise from the outset – just how relentlessly conservative the whole Victorian profession was in those years: bench, bar and – with the exception of just a handful of firms (Maurice Blackburn, Slater & Gordon and Holding Redlich) – solicitors. Significantly more so than in the rest of the country, or at least NSW and South Australia. Not very many lawyers – least of all young barristers and solicitors trying to get a toe-hold in the profession – were prepared to put their head above the parapet and identify as a Labor sympathizer.

There was a very real risk of getting one’s head chopped off if one did – as John Howie found even as late as 1974 when his partnership was dissolved after his name appeared as authorizing the big coming-out ‘Lawyers for Labor’ newspaper ad in the May 1974 federal election campaign. The message of the ad, signed by over 200 of us, was just too horrifyingly radical to stomach. Just think of it:

The Australian Labor Party has taken initiatives:

• To simplify divorce proceedings and reduce the high cost of divorce
• To protect consumers
• To make legal aid available to everyone who needs it
• To protect basic human rights, freedoms and privacy
• To prevent racial discrimination in our community

We believe that these measures are vital to the welfare of the Australian people

For your sake return the Whitlam Government on May 18th

It was just a month earlier, on 8 April 1974, that the Victorian Society of Labor Lawyers was born, at a meeting organized by John Howie, me, Jim Kennan and Geoff Eames at, of all places the Temperance Hall in South Melbourne. John chaired the meeting; Jim and Geoff steered through the Constitution; John Button was elected President, with me and Phil Molan Vice-Presidents, John Howie as Secretary, Jim Kennan as Assistant Secretary and Geoff Eames as Treasurer, along with a Committee, and – a perceived necessity then, as now, in any ALP-related organization – a Disputes Committee. All stitched up without dissent.

Not that the new Society was an ‘ALP’ organization, as distinct from one associated with the ideals and aspirations of the broader labour movement (although the Constitution did provide that ‘Membership shall not be open to persons who are members of political parties other than the Australian Labor Party except those approved by the Committee’: Groupers beware!). Our objects – which were repeated in essentially these terms in the constitutions of the state Societies in NSW, the ACT, South Australia, Western Australia and Queensland established shortly afterwards, and in the National Society established in 1980 – were ‘promoting changes in the substantive and procedural law, the administration of justice, the legal profession, legal services, legal aid and legal education in order to make the substance and practice of the law fully responsive to community needs’.

The question of what it is to be a ‘Labor lawyer’ (and whether the spelling should be ‘-or’ or ‘—our’ has never been completely resolved to everyone’s satisfaction. Should it be lawyers practising in the field of industrial law; those subscribing to the basic tenets of the ALP, whether or not as a member; those having some adherence to the working-class movement and professionally involved in some of its struggles; those regarding themselves as radicals; or simply those who, for whatever reason, belonged to a Society of Labor Lawyers? I guess the answer does not matter all that much so long as we avoid the characterization to which the late Peter Redlich, with his usual waspishness, suggested at the inaugural National Conference of Labor Lawyers in 1979 we might be subject: ‘no more than a mutual admiration society of the legal profession in the Labor Party’!

The Victorian Society came into its own with the very strong and visible campaigning of its members, as I’ve already mentioned, for the re-election of the Whitlam Government in 1974. And it became even more vigorously engaged by the Dismissal in 1975 and its election aftermath – with an organizing committee led by the Society’s office bearers, plus others like Dick McGarvie, and with academics Brian Keon-Cohen and Peter Bayne working full time on the campaign, all under the banner of the slogan ‘Lawyers for Democracy’. A huge amount of speaking, writing, advertising, and media, including talk-back radio, activity took place. All, unhappily to no avail, but through no fault of the Society.

What energized us all so much in those days was the sense of how much could be achieved by a genuine reforming government seriously committed to major legal and constitutional reform. And there was no more inspirational figure those days – certainly to me, but I think to all of us – than Lionel Murphy. It was hard not to be seduced – and I guess I certainly was, working with him for nearly two years as I did as a young academic consultant on, among other things, his great project for an Australian bill of rights – by his intellectual energy, love of ideas and debate, and what I saw to be his absolutely genuine commitment to justice, liberty and equality.

Murphy loved the idea of both legislative and judicial creativity, as he made wonderfully clear in his speech to our 1979 National Conference. Who of us there will ever forget him saying ‘The doctrine of precedent is one that whenever faced with a decision, you always follow what the last person did who was faced with the same decision. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep’?

Of course, Lionel had his obvious weaknesses. He was impetuous, wildly indiscreet and too fond of Damon-Runyonesque low-life characters for judicial comfort. But as fast and loose as he may on occasion have been, I never believed that any of the indiscretions for which he was later mercilessly pursued by his political, media and judicial enemies even began to justify his removal from the High Court. He was an exciting Attorney-General, a seriously innovative reforming judge, and deserves to be remembered as a great Australian.

The important role played by the Victorian and other state societies not just in election campaigning but energizing serious and fertile policy debate on major legal issues became most obvious in the series of National Conferences of Labor Lawyers which began in Adelaide in 1979 – with an all-star cast of contributors and which resulted in the book Law, Politics and the Labor Movement – and continued annually until petering out, for reasons someone else will have to explain, in 1997.

It was at the second National Conference in Sydney in July 1980 that the ‘Australian Society of Labor Lawyers’ was established, with me – in the Senate since ‘78, and about to be appointed Shadow Attorney-General by Bill Hayden – as the inaugural president of the national body (being succeeded by Rod Madgwick in 1982, Peter McCusker in 1984, and John Howie and others after 1986). That first election for office-bearers wasn’t quite as seamless a stitch-up as the inauguration of the Victorian society had been, Notwithstanding my personal policy orientation, then as now, being about three standard deviations to the left of the NSW ALP Right, I had to beat off a challenge from the forces of true Left enlightenment led by South Australia’s Peter Duncan.

And more such fun was to come. In the finest tradition of the labour movement, we were never in the national society a completely happy and united little family, and more than a few policy and personality tensions bubbled to the surface when the Hawke Government was elected in 1983, and I became Commonwealth Attorney-General. I had made it clear in Opposition that I was determined to complete and take further the Whitlam-Murphy legal and constitutional reform agenda, and with all the exuberance and naivete of youth, I now specifically identified, to the alarm of my new department, fifty-four separate priorities in that cause over the next two years. And I was unwise enough to go on record saying that I and my friend Michael Kirby, still head of the Australian Law Reform Commission, hoped to ‘be to law-making what Butch Cassidy and the Sundance Kid had been to law-breaking’. So expectations from my Labor lawyer colleagues were sky-high. And, as with all such expectations, they were bound to be disappointed.

During my short and not-quite-perfectly formed two-year tenure, I did have my successes – including the Tasmanian Dams case (the ‘spy-flights’ saga notwithstanding); negotiating the severance of last constitutional links with the UK; sneaking through improved FOI access (while Hawke and Keating were not looking, for which they never forgave me); relaxing censorship laws; toughening trade practices, companies and insurance legislation; improving the Family Law Act; and establishing a national DPP. That’s my story and I’m sticking to it. But I failed to make any headway at all on some of my biggest ambitions, including a national bill of rights, fixed term parliaments, national no-fault accident compensation, and uniform national defamation law. And none of my perceived successes were, in the eyes of some of my Labor Lawyer colleagues, remotely enough to compensate for my perceived sins.

These included establishing a National Crime Authority, making a couple of early judicial appointments from outside the family, and – something I do lament to this day – not fighting back hard enough against Bob Hawke’s over-reaction to ASIO’s fingering of David Combe as a security risk. But no single issue caused me more grief than the crusade against Lionel Murphy that began with the Age Tapes allegations in February ’84, where I was simultaneously attacked from the right for being over-solicitous to the judge, and from my colleagues on the left for being insufficiently robust in his defence.

I suspect there are some issues like this – and that Mark Dreyfus, Nicola Roxon, and Jill Hennessy will bear me out from their own experience – on which first law officers can never win: where legal and political imperatives compete, and you are damned if you do, and damned if you don’t.

And all of us in the law reform business have to come to terms with the reality – which took me, being then young and foolish, longer to appreciate than it should have – that most of our ministerial colleagues are not at all interested in what we trying to do, and – no doubt accurately – see most of the electorate as sharing their indifference. In my case, the prevailing view, starting with the Prime Minister, was that my preoccupations might have been great media fodder while we were in opposition, getting stuck into the Coalition, but in government they were a ‘wank’ – and, as Hawke put it to me on one memorable occasion, not just a common and garden wank, but a ‘two hand job’.

My unceremonious departure from the A-G’s portfolio at the end of 1984, the dream job on which I had long set my heart, sent off by the Prime Minister to other ministerial pastures which he insisted would be in my own longer-term interest – and I guess he was proved right – marked the end of my own direct engagement with the law, law reform and, after its first ten years, the Society of Labor Lawyers. Looking back on it all at the time, I was reminded of the famous last words (at least in Tom Keneally’s telling) of the Aboriginal outlaw Jimmy Governor on his way to the gallows: ‘Fucking bushranging’s not all it’s cracked up to be’.

Within the Australian political and constitutional system, the way of the law reformer will always be hard. But it is crucial if we want to achieve, as we must, a decent and just society of which we can all be proud. And when we think of how dramatically community attitudes on issues like racial and sexual discrimination, same-sex marriage, and hopefully now domestic violence, have changed over my political lifetime, the way of the reformer might not be quite as hard as I have described.

But harnessing and mobilizing the energy of dedicated, principled, creative and committed lawyers is critical to the success of that enterprise. That is a role that the Victorian Society of Labor Lawyers, and its national and other state counterparts, have played superbly in the past and can again with the kind of rejuvenation efforts being put in by Owen Nanlohy and his team who have brought us together today and this evening. I thank everyone here for what you have done in the past, and wish you every possible success in the achievements to come.