THE HON MARK DREYFUS KC MP
FEDERAL MEMBER FOR ISAACS
Australian National University
2025 Geoffrey Sawer Lecture
“Labor and the Constitution”
ACKNOWLEDGEMENTS
I acknowledge the Ngunnawal people as the traditional custodians of the land on which we meet, and recognise others with a connection to the lands of the Australian Capital Territory and region.
INTRODUCTION
2025 marks the 65th anniversary of the ANU Law School, and 65 years since Geoffrey Sawer was appointed its inaugural Professor of Law.
Sawer’s texts were an essential part of my legal education.
His books and commentary continued to inform my practice in the law and my work in the national parliament.
Geoffrey Sawer made an immense contribution to the law and public life in Australia.
I am privileged to present this lecture which honours his legacy.
THE DISMISSAL
Tonight I will speak about Labor and the Constitution.
It would be remiss of me, in the month that marks the 50th anniversary of the Dismissal of the Whitlam Labor Government, not to begin with that subject.
For the fact remains that, notwithstanding the 1977 constitutional change relating to Senate vacancies, our Constitution permits a hostile Senate and gormless Governor-General to act the same way today.
This month many Australians are recalling where they were when they learned of the Dismissal. My memory is a vivid one.
On 11 November 1975 I was a law student at the University of Melbourne and was sitting a second year law exam at the Royal Exhibition Building.
Late in the afternoon, a member of the Students Representative Council burst into the hall with a megaphone yelling “The Government’s been sacked. Everyone down to the City Square.”
I’d like to tell you we threw down our pens and ran to the square. We did not. We finished our law exam.
Many of us then went to the City Square to raise our voices in protest.
By the time I got there, the Secretary of the ACTU, Bob Hawke, had been on the radio urging calm. There was much anger, but no violence.
Over the next year I joined protests whenever the Governor-General, Sir John Kerr, came to Melbourne.
The first time I attended a Law Institute of Victoria event I was outside the room, protesting with others when Kerr arrived as the guest speaker for the Institute’s 1976 annual dinner.
If Kerr had paid attention to my protest action he might not have returned to Melbourne for the running of the 1977 Melbourne Cup and slurred his way through the cup presentation.
In the 50 years since the Dismissal my rage has not dimmed.
I thought then, and think now, that the actions of Malcolm Fraser and Sir John Kerr were desperately wrong.
The office of the Governor-General was irreparably harmed.
The Fraser Government was permanently tainted.
Our democracy was stained.
Subsequent revelations have cast a shadow over the High Court and the Palace.
50 years on, some things are clear, and should be clear regardless of one’s attitude to Whitlam and his government.
Kerr should have warned Whitlam of his intention to dismiss him.
According to Whitlam biographer Troy Bramston, even Fraser formed this view later in his life.
No constitutional monarch should act in the way Kerr acted.
Critically, no constitutional monarch would act in the way Kerr acted.
It is also clear that Kerr should have immediately informed the Speaker of the House of Representatives and the President of the Senate of his decision to dismiss Whitlam and appoint Fraser as Prime Minister. That he advised the Palace but not the Parliament is as remarkable as it is affronting.
Finally, Kerr should have acknowledged the resolution of the House of Representatives expressing confidence in Whitlam, not Fraser, and acted in accordance with the democratic demands of the House.
Sawer, in his restrained style, said he felt “uneasy about what happened on 11 November”.
I think he might have used a stronger term than “uneasy” if he had known, as we now know thanks to Jenny Hocking, the full extent of Kerr’s deception.
Others, of course, don’t feel uneasy about the events of 1975.
Former Attorney-General George Brandis is among these. In an opinion piece published last month Brandis falsely asserted that “Whitlam’s legal and moral case against the propriety of the Senate denying supply to his government is fatally weakened by the fact that in 1970 he had tried to do the very same thing.”
Brandis quotes from Whitlam’s Budget reply speech on 25 August 1970 in which Whitlam said “we will vote against the bills here and in the Senate” and then added with a rhetorical flourish “our purpose is to destroy this budget and to destroy the government which has sponsored it”. Then, in a shocking rewriting of history, Brandis asserts “the Opposition made good its threat. In the end, however, the budget bills passed narrowly when enough cross benchers refused Whitlam’s entreaties”. Brandis calls this “the forgotten story of the 1970 budget”, and claims “the 1970 precedent was a much more aggressive use of Senate power than anything that happened in 1975”. He says “the 1970 precedent” has been “airbrushed out of history by Labor-leaning historians and the left intelligentsia”.
This is laughable reinvention of history.
There is a reason no one marked the 50th anniversary of the 1970 Budget sittings!
The facts are the 1970 budget bills passed the House on 22 October 1970 and passed the Senate on 3 November 1970. The Labor Opposition opposed the bills in both houses. In both houses, Labor was in minority.
Hardly shocking. And utterly unmemorable.
In the same opinion piece Brandis also mounted the heroic argument that the blocking of supply in 1975 and the Dismissal “were two quite different things.”
Really.
50 years on from the Dismissal we owe our democracy more than fanciful re-tellings that justify the trashing of our democratic norms.
That the actions of Fraser and Kerr were lawful does not mean they were right.
LABOR AND CONSTITUTIONAL CHANGE
I will go on to canvass my views on necessary constitutional change to prevent a repeat of 1975.
But first I want to address the sometimes fraught relationship between Labor and the Constitution.
Fraught, because Labor is a nation-building party, and our written Constitution limits the scope of our national government.
Much of the commentary about Labor and the Constitution focuses on failed attempts to amend it by means of the referendum mechanism set out in section 128.
I will come to that mechanism, and my cautious optimism for its future use, later.
The somewhat dismal record of the success of such referendums over our history is well known to you all.
I have already referenced the last successful attempt – in 1977.
The text of our written Constitution has remained remarkably static.
In 1967, Sawer declared that “[c]constitutionally speaking, Australia is the frozen continent”. Those must be among the most-quoted words in Australian legal scholarship, and for good reason. The record of constitutional amendment since Sawer wrote those words in 1967 has been even poorer.
It is of course Labor that most frequently pursues constitutional amendment by referendum, and so it is Labor that is most frustrated, and most disheartened, by this record.
The failure of the Voice referendum was one of the greatest disappointments of my public life.
To be a Labor person for any significant period is to feel the sting of repeated failure on this front.
The 1999 Republic referendum is more than a quarter century behind us, but that too was a grievous disappointment.
In my inaugural speech in the House of Representatives in 2008, I spoke of my hope that one day in that chamber I would vote for a Bill to amend the Constitution to establish an Australian Republic. That has not come to pass.
In this sense Labor’s constitutional ambitions have been dashed, and badly. Early Labor figures would be mightily disappointed.
Historian David Day has observed that:
[Prime Minister Andrew] Fisher had argued prior to Federation that Labor should accept the conservatively drafted Constitution, believing that it would be a relatively simple matter to change it later so that the powers of the Commonwealth Government could be broadened in ways that would allow Labor’s agenda to be implemented… To Fisher, it was straightforward: voters would recognise that Labor’s political program was in their interests and they would vote accordingly.
In his one full term as Prime Minister, between 1910 and 1913, Fisher put eight proposals for constitutional amendment to the Australian people at referendums in 1911 and 1913. Those proposals would have entailed dramatic expansions of Commonwealth power, including over trade and commerce, corporations and industrial relations. No proposal carried either a majority of states or a majority of voters.
I mention Fisher because what is striking to me about his record is that his failure to expand the power of the national government by formal constitutional amendment did not prevent him from striking achievements in what is appropriately called nation-building. As Day notes, Fisher pursued transcontinental railway lines. He established the Commonwealth Bank. He focussed the development of our Navy on Australian defence, not imperial service. He took over the administration of the Northern Territory. He established the capital city in which we meet this evening. Fisher pursued the more intangible aspects of nationhood too. His government commissioned Australian artists to depict Australian subjects. He issued more distinctively Australian postage stamps and bank notes, and adopted our current Coat of Arms.
THE OTHER LABOR TRADITION
Labor has never given up on section 128, and for reasons that I will come to later in my remarks, I hope we can return to the process of formally amending our Constitution.
But there is a parallel Labor tradition of pursuing nation-building ambitions notwithstanding constitutional limitations on the national government.
And of working creatively within the constraints of the written Constitution and of pushing at its boundaries.
At this point I want to return to Sawer’s famous line about our “frozen continent”. In the passage of his book Australian Federalism in the Courts in which that line appears, Sawer also said this about the consequences of our “frozen” written Constitution:
Hence it is likely that more than ever the constructive development of Australian federalism depends on the politicians and civil servants, exercising the instruments of federal persuasion or coercion and the techniques of co-operative federalism. They may have to rely increasingly on the evasion of constitutional obstacles…
That too been part of the Labor tradition.
And it has included running constitutional risks.
“Australian Labor Governments”, Gareth Evans wrote after the Whitlam period, “have usually been constitutionally adventurous, anxious to explore to the limits the powers which the Constitution confers upon the Commonwealth Government and Parliament”.
There have been famous failures. It has been suggested that as Attorney-General, Doc Evatt underestimated the risk of the High Court striking down Chifley’s bank nationalisation legislation.
In Evatt’s defence, one commentator has noted:
at the time there were those who, like the rising academic star Geoffrey Sawer, thought the legislation had a better than even chance of surviving the Court's scrutiny.
But in office, Labor has time and again been willing to pass laws at the ambit of Commonwealth power with a view to defending them in the High Court, and indeed to procuring judicial precedent which expands its constitutional power in the process, if possible.
Labor has been willing to design laws and policies creatively to rely on what constitutional power the Commonwealth does have, and to seek to change the Australian community’s expectations of how the national government will meet their needs and serve their interests.
Brendan Lim, in his thoughtful book Australia’s Constitution After Whitlam, identifies the possibility of achieving “informal” constitutional change through ordinary lawmaking. Lim says that an ordinary piece of legislation might have a small-c constitutional status because of the circumstances of its enactment, because of its subject matter, or because of the social consequences that it has. Most importantly, a law attains constitutional status by being received in the community as such, by “sticking” culturally.
Labor has been much more successful in achieving constitutional change of this kind than in amending our written constitutional document.
And at times it has been quite unselfconscious about its ambition in seeking to do so. As Lim notes, in the Governor-General’s speech at the opening of Parliament after the 1972 election, Whitlam’s Government described its goal as follows:
The program which my new Government proposes is designed to achieve basic changes in the administration and structure of Australian society in the lifetime of this Parliament.
Gough was not given to false modesty.
Whitlam was the Labor leader who has spoken most plainly about working creatively with and around constitutional constraints.
That is not surprising, not merely because Whitlam had been a very able lawyer but also because he experienced something of a change of heart about constitutional matters. It had been Curtin’s 1944 referendum proposals which drew him into politics, and into the Labor Party. And in his earlier years in public life he had regarded the Constitution as a fundamental obstacle to Labor’s policy ambitions. In a 1957 speech at the University of Melbourne tellingly titled The Constitution versus Labor, Whitlam had said that Labor was “handicapped … by a Constitution framed in such a way as to make it difficult to carry out Labor objectives and interpreted in such a way as to make it impossible to carry them out.”
After the end of his Government, in 1977, Whitlam gave another speech at the University of Melbourne in which he gave rather a different account of matters. Constitutional limitations on power he said, had largely been “irrelevant” to his Government, and it is indeed notable that unlike previous reforming governments, the High Court did not strike down substantial Whitlam legislation.
Whitlam said this:
An argument sometimes heard … is that it is somehow immoral to exploit constitutional power or to test its limits. That argument is nonsense. If there is a community need the government has a duty to use whatever power is available to meet it. It is the High Court’s function, not the government’s, to draw the line. If the High Court will allow the power with respect to posts and telegraphs to be used to control the share market, and there is a need to control the share market, then that power ought to be so used.
He noted the creative use of powers for his reforms:
- a. the use of tied rather than unconditional grants to the States under s 96 to require the implementation of reforms
- b. the use of direct grants under s 81 (although of course the High Court would have something to say about that in more recent times)
- c. the expansive use of the corporations power to enact the Trade Practices Act and attempt to enact national corporations legislation, and
- d. in particular, reliance on the nationhood power (a power that might be said to befit Whitlamite ambitions)
Whitlam, of course, had pursued substantial amendments through section 128, to no avail. But by the end of his government his view was that “the basic aims of the social democrat in Australia can be achieved under the present Constitution”.
But it was not just Whitlam who followed this path of constitutional creativity, of pushing the boundaries.
The Labor tradition I am speaking of has persisted throughout Australian political history.
It was present in Andrew Fisher’s Government.
Fisher, as I said earlier, led an ambitious and reforming government. One of his reforms was the Maternity Allowance Act 1912, which provided a five pound payment for mothers on the birth of a child. This measure was ahead of its time in some respects – not least because it operated to the benefit of married and unmarried women alike. It was inexcusably of its time in operating in a racially discriminatory way.
One aspect of the political controversy about maternity allowances was whether the then quite young Australian Constitution gave the Commonwealth power to provide them. There was of course at that time no section 51(23a) providing express power for such a thing.
Fisher relied on what he articulated as a basically plenary power to spend under section 81 of the Constitution.
You can read the advice of Attorney-General Billy Hughes, on which Fisher relied, on the public database of legal opinions of Commonwealth Attorneys-General maintained by the Australian Government Solicitor. The earlier opinions on that database have much to teach modern lawyers – burdened with all the riches of online legal research – about getting straight to the point.
The Fisher Government’s approach to Commonwealth spending power has not survived the following century.
But there is of course no longer any question that the national government can and should provide material support to expectant mothers.
This tradition of constitutional ambition was present in the Curtin and Chifley Governments.
Ben Chifley of course had the rare distinction of successfully carrying a constitutional referendum to expand Commonwealth power to provide social services. And he carried the signal failure of bank nationalisation’s defeat in the High Court.
But just as consequential as these events was the enactment and successful defence in the High Court of Curtin’s Income Tax (War-Time Arrangements) Act 1942, which effectively seized income tax power from the States.
In the midst of the Second World War, Curtin had sought the States’ consent to the Commonwealth taking over and therefore unifying the collection of income tax while it addressed the perilous circumstances of the time.
The States rebuffed him, so he introduced legislation of controversial constitutional status to achieve Commonwealth control unilaterally.
The moment is perhaps best summed up in the words of the conservative Leader of the Opposition, Arthur Fadden:
It must be admitted that the provisions of the four bills now under consideration are revolutionary in character. The debate upon them should be one of the most important that has taken place in this House for very many years. I am not competent to deal with the constitutional aspects of the Government's proposals. We have heard it said that the States intend to contest the constitutional validity of the Government's proposals. I have no doubt that the Government has thoroughly considered that aspect of the matter, and is prepared to accept responsibility for its legislation. The Opposition recognizes the necessity to use expeditiously and effectively the full taxable capacity of the nation in order to finance the war.
Curtin, of course, prevailed in the High Court, although that was by no means assured, and Commonwealth control of income tax has remained a basic fact of our national fiscal arrangements ever since.
This legislation is a prime example of the achievement of “informal” constitutional change by way of ordinary legislation of the kind discussed by Lim.
The Labor tradition of constitutional ambition was present in the Hawke and Keating Governments.
Perhaps most significant in this respect was the approach that Hawke and his Attorney-General Gareth Evans took to prevent the construction of the Franklin Dam on the Gordon River – a promise Hawke made to the electorate at the 1983 election.
After the election, the Government passed the World Heritage Properties Conservation Act, allowing the Government to stop clearing, excavation and other activities that would damage the heritage site.
The Act was drafted in a “belt and braces” manner to attract whatever bases of constitutional support were available. Perhaps the better term is “kitchen sink”.
In his memoirs, Evans writes that:
Drafting that legislation … was about as much fun as a constitutional lawyer could ever have sitting down. We threw every weapon in the armoury at it, with three separate sets of provisions prohibiting essentially the same activity, based respectively on the external affairs power, the corporations power, and—in relation to sites 'of particular significance to the people of the Aboriginal race'—the section 51(xxvi) race power.
In the end, most significantly, the High Court accepted the broad view of the external affairs power that the Labor Government relied on. An outcome with great significance not only for the Gordon River, but for a very broad range of policy areas in which the Commonwealth had treaty obligations. The approach the Court took to the corporations power also expanded Commonwealth power.
The potential ramifications of the decision were keenly understood at the time and attracted considerable political controversy.
In fact, what was then Butterworths promptly published a full copy of the judgment in book form. The late Michael Coper – doyen of this law school – provided a commentary.
Some measure of the prevailing mood can be taken from Coper’s response to the more outlandish views that were apparently in wide circulation.
Coper emphasised that the broad view of the external affairs had not come from nowhere. It had considerable antecedents in previous cases and reflected the expansion of international law itself.
He concluded with these calming words:
It is far from obvious that this marks the end of the federal system.
Again, however, the Labor Government’s constitutional ambition was accepted and rewarded in time.
Writing some decades later, the late Leslie Zines, another great ANU constitutional lawyer, observed that:
The Tasmanian Dam case has stood up well to the political and social pressures and passions that resulted from it… It seems clear that the States and the public have come to accept as normal Commonwealth legislation which a few years ago would have aroused debate and high emotion.
Finally, the Albanese Labor Government’s pursuit of housing reform is a contemporary example of Labor pursuing its nation-building agenda using the full stretch of its constitutional authority.
A program of reform, I note, that was enthusiastically backed by the Australian people at an election earlier this year.
CHALLENGES OF CONSTITUTIONAL AMENDMENT
While I am proud of Labor’s long history of working creatively within the constraints of the written Constitution, and of pushing at legal boundaries to create the space needed to respond to the needs of our nation, there are clearly limits to how far constitutional boundaries – and justices of the High Court – can be pushed.
Sometimes, there is nothing for it but to seek to change the written constitution through formal amendment. And rather than advocating in the High Court for that change to be accepted, to place the decision directly in the hands of the Australian people though a national referendum.
There is a small and still growing library of commentary analysing why the Voice Referendum, held in October 2023, failed.
The most often-cited reason by commentators for the failure was the lack of bipartisan support. But that’s a polite framing of what occurred.
First the Nationals and then the Liberal Party adopted positions of active opposition to the Voice referendum, and they did so with great energy and focus.
While I accept that some in the Opposition may have supported the no case out of sincere belief, it seems clear that for many the primary driver was the conviction that defeating the Voice would deliver the Opposition a partisan political advantage.
I should emphasise now that I don’t subscribe to the truism that referendums cannot succeed in Australia without bipartisan support. However, there is plenty of evidence, including the bitter lessons of the Voice Referendum, that make clear that a lack of bipartisan support makes constitutional change very much harder to achieve. I will not go into the extensive literature on the psychological and social reasons why campaigning against change is generally easier than campaigning for change, but you can see that reality demonstrated in negative political campaign strategies across democratic nations.
This is the unfortunate context in which any campaign for formal constitutional change is situated. And the sad history of failed constitutional referendums in our nation bears this out.
Which brings me back to the Voice Referendum, and the decision by the Coalition parties to oppose that change by casting it as a threat to our nation.
If you look at aggregate opinion polls from the date the referendum was announced in October 2022, when support peaked at around 65 per cent, you can see that support decline over the year until the Referendum was held, and failed in every state, with only 40 per cent support nationally. That decline accelerated after Dutton announced that the Liberal Party would oppose the Voice in April 2023, and mounted a campaign against it. (The Nationals had got in much earlier, announcing their opposition to the Voice in November 2022).
I am not suggesting that Coalition opposition to the Voice was the only factor leading the failure of the Referendum. Clearly there were other factors at play, and I will briefly mention a few of them, in part because in the context of political partisanship those problems were effectively amplified.
One set of problems arose from the complexity and the disparate arguments presented by advocates of the Yes campaign, particularly when contrasted with the simplicity and discipline of the No campaign. The far-right lobby group, Advance, ran a highly targeted campaign around two key messages. Advance claimed “the Voice will divide us”. And for those who did not want to engage, Advance pitched “if you don’t know, vote no”.
Misinformation and disinformation were also employed by Voice opponents, including claims the Australian Electoral Commission was not to be trusted, and that there would be vote-rigging in the referendum.
Like all most of you here, I have heard the argument that by supporting the Voice it was Labor who politicised it. This seems to me a very strange argument.
First, the Voice Referendum was a response to the Uluru Statement from the Heart, a call by First Nations leaders to enshrine a First Nations Voice in the Constitution.
Second, a commitment to the referendum was front and centre in Labor’s successful 2022 election campaign.
It is a kind of perverse logic for an Opposition to mount an argument against a Government implementing a clear election commitment.
And worse, to fail to engage in the implementation process, declining the Prime Minister’s invitation to help frame the question and participate in an honest presentation of arguments to the Australian people.
The Coalition wanted nothing to do with any of that, to its lasting shame.
FUTURE CONSTITUTIONAL CHANGE
I want to conclude on a note of hope, sharing with you my ambition for future constitutional change.
First, I believe that sooner rather than later Australians should be asked to adopt four year terms for their national government.
All Australian states and territories have adopted four year terms.
We are also an outlier in world terms, with just six of 186 nations with active legislatures having three year terms.
Just last week, John Howard supported the call, observing, wisely:
It’s ludicrous you’ve got four-year terms in all the states but the national parliament doesn’t. It’s just crazy.
Second, it’s time to renew the campaign to establish an Australian Republic.
Australia – and Australians – have changed in many ways over the past quarter century.
In my view it is time – past time – for Australia to break its residual constitutional ties with the United Kingdom and its monarchy.
In so doing, we might also tend to the matter of so-called reserve powers and provide our Head of State, to use Whitlam’s words, “no powers anterior or superior” to those expressed in our amended Constitution.
Beyond these specific changes, consideration should be given to the adoption of a standing Constitutional Commission, an idea championed by George Williams.
Such a Commission would help establish in the public mind that our Constitution is not a frozen document, but a living one, and that as a nation we should always be open to engaging in ideas for its improvement.
The body might function in ways similar to the Australian Law Reform Commission, conducting broad public inquiries on reform proposals it is given or undertakes on its own motion.
Should such a commission exist today it could be examining questions related to four year terms and the Republic and many others.
CONCLUSION
I conclude by again thanking the ANU Law School for the privilege of delivering this lecture in honour of Geoffrey Sawer.
Thank you and good evening.
