Welcome to Eureka Street

back to site

Labor's light on the hill


Frank Brennan stands between statues of Chifley and Curtin'The Light on the Hill' Address, Bathurst Panthers Club, 2 November 2013

Many months ago, I was contacted by Pete Tully and James Brann from the Bathurst Branch of NSW Labor asking me to consider delivering the 2013 'Light on the Hill' Address. It was a time, as we now know from George Wright, the ALP's National Secretary, when Labor's internal polling indicated 'Labor was looking at being reduced to as few as 30 seats'. I told your organisers that usually I would despatch such an invitation to the wastepaper bin, not because I would not value the honour and the privilege to speak in remembrance of one of Australia's truly great prime ministers, but because I, a priest, would regard the invitation as too party political for consideration. On reflection, I called back, retrieving the letter from the regrets file. I was very blunt. I expressed the view that electoral wipe-out was the only conceivable outcome for the ALP and that there would be a need for the good of the country to re-found the party getting back to basic values, re-setting the political compass. I was told that was why I was being invited. So I said yes and we agreed to a date — 21 September 2013. Prime Minister Gillard then set 14 September as the advance election date. We thought that a wake one week later would be appropriate time for reflection. Then Kevin Rudd returned to the helm and put the election date, as well as many other things, back into the mix. So we agreed to delay the dinner until this evening, being assured that the election would be done and dusted no matter what Kevin decided. A mate of his, I did not think he could win but that he might save the furniture. I thought he could pull off what George Wright this week described as a 'Dunkirk — suffering major defeat but managing to escape with ... army intact'. Labor 'ended up holding 55 seats', living 'to fight another day'. Its next generation of leaders has kept their seats in the parliament.

There have been innumerable post-mortems and words of advice as to how the party with new structures, election rules, and policies can pick itself up, dust off, and win the next election. Sadly some of those post-mortems have come with more coatings of spite and loathing. It is no part of my role in the public square as a Catholic priest to offer such advice, even if it be offered in a non-partisan, reconciling tone. I daresay it would be of little value anyway. I am neither a professional politician nor a political scientist. I am not and never have been a member of any political party. But I am a citizen who cares desperately about the health of our body politic, the contours of political morality in a pluralist democracy under the rule of law but without a bill of rights, and the values that motivate our elected leaders and that underpin the laws and policies they enact. I agree with George Wright's assessment: 'On September 7 the Australian people passed their judgment. Labor's history of infighting in office left (Labor) unworthy of re-election in too many voters' minds'. For the health of the body politic, I have two fears expressed in two unanswered questions. Given the Rudd-Gillard hostility, will the Labor Party now rule a line on personal antipathies and move forward in Opposition, preparing for government? Has an Abbott Government done enough of the hard policy work and renewal in Opposition after 13 years in government and only 6 in opposition to provide true national leadership as we face the challenges ahead? I cannot answer those questions but hopefully I can provide some inspiration for those of all political creeds wanting to ensure a better future for our country, reflecting on the genius and toil of Joseph Benedict Chifley who led the country in times of real crisis, war and depression, and who learnt the craft of statesmanship in the cauldrons of his union as he went from striker to strikebreaker and of his political party as he went from government to losing his seat and leaving parliament for ten years before returning to be Treasurer and Prime Minister. Those who think the Rudd-Gillard antipathy insuperable have little knowledge of Labor in the days of Jack Lang. From the cauldron of division and antipathy emerged the great Chifley at the nation's hour of need.

At his death, Chifley was described by Dr Evatt as a 'great leader of the Australian Labour Movement; a noble Australian; a Christian statesman; fighter for the cause of social justice and the betterment of all humanity'.1 Evatt provided this assessment of Chifley: 'He always sought unity but would never sacrifice principle to achieve the appearance of unity. He grasped essentials; he had the common touch; he was wise and supremely courageous.' According to Evatt, 'Like Curtin he transcended mere party politics. John Curtin and Ben Chifley shared one noble ambition — to make Australia safe, to make Australia great.' At his funeral here in Bathurst, there were no eulogies. But now you gather each year to commemorate him with a speech. The obelisk over his grave is inscribed with his words, 'If an idea is worth fighting for, no matter the penalty, fight for the right, and truth and justice will prevail.' Gathered tonight in the wake of a Labor defeat and a strong Coalition victory, we too for a moment want to transcend mere party politics and reflect on how we too can contribute in our distinctive ways to making Australia safer and greater. I hope my remarks will have some appeal to all members of parliament whether they be independents, members of one of the major parties, or members of one of the new parties elected to the Senate this last election.

Our shared debt to Aboriginal Australia

Ben Chifley's grandfather Patrick migrated here from Ireland at the age of 26. He arrived on a migrant ship, the David McIver in September 1858. Five years later my great great grandmother Annie and her five children including my great grandfather arrived on the very same ship. They docked not in Sydney but in Hervey Bay, Queensland. Let me offer a brief reflection on being a descendant from Irish migrants who came here on the David McIver in search of a better life. In early July this year, I was sitting alone on the shoreline at Urangan at the entrance to the vast Hervey Bay, 150 years to the day since the David McIver entered Hervey Bay carrying 404 immigrants, there having been only one death but also 9 births on the 107 day voyage from Liverpool.

Hervey Bay is a very expansive but shallow bay sheltered from the Pacific Ocean by the majestic Fraser Island. On 6 July 1863, the David McIver spent the day searching for a channel until it was anchored in 4 fathoms of water. Some of the crew then got into a small boat and made for the shore at Urangan close to where I was sitting 150 years later. They came ashore and found two Aborigines. I presume they were males. Those two Aboriginal men then without protest accompanied the crew in the boat and showed the crew the way to Captain Jeffrey's Admiralty Survey Camp. The David McIver was only the second migrant ship ever to come into Hervey Bay and here were two Aborigines happy to extend a helping hand to complete strangers who must have looked very strange indeed. One Aboriginal was then commissioned to send word to Maryborough 40 kilometres away. That Aboriginal walked and ran all through the night to bring word of these new arrivals. A pilot was then dispatched. Within 2 days, a steamer named Queensland arrived, towed the David McIver to White Cliff on Fraser Island, and then received the disembarking passengers to transport them up the Mary River to the port of Maryborough where they arrived on 9 July 1863. I know nothing more about those Aborigines who played their part in the safe arrival and settlement of my forebears. I know absolutely nothing about the Aborigines who played a part in the safe arrival and settlement of Ben Chifley's grandfather. But I do know that each of us is in their debt even 150 years later.

If my mob or Chifley's forebears were to arrive by boat today uninvited, they would be sent to Papua New Guinea. 150 years ago, the traditional owners helped my ancestors and their fellow passengers to find safe anchorage so that they might settle here permanently calling Australia home. They extended the hand of peace and welcomed the stranger. Many on the David McIver were eligible for land grants from the newly established Queensland Government. That was the lure for their coming to the other side of the world rather than the United States. It's a matter of some pride for me that one of Annie Brennan's great grandchildren, my father, was one of the judges who just 21 years ago in the Mabo Case said that Aborigines had always owned the land which had been subject to those gratuitous land grants. Paul Keating then did the fabulous job of delivering the 1993 Native Title Act, parliament's response to the uncertainties and possibilities opened up by the High Court decision. Three years later, Labor was out of office and the High Court expanded some of the uncertainties and possibilities of native title in the Wik decision. The Howard government legislated its response to Keating's original Act and the High Court's more recent decision in 1998. It was a poisonous political cocktail — a 4–3 decision of the High Court being considered by an unsympathetic government and a Senate where the Catholic Tasmanian Brian Harradine had the balance of power. Keating was most displeased with Howard's tinkering with his original legislation. He was also displeased with people like Noel Pearson and me who had publicly praised Harradine for improving significantly on Howard's original position. Keating branded me the meddling priest, a label I have happily worn these last 15 years, though I do have a preference for Kevin Rudd's more poetic descriptor. Rudd labeled me an ethical burr in the nation's saddle.

Religion, politics and the public good

Paul Keating in his 2011 Lowitja O'Donoghue Oration said that the Native Title amendment law of 1998 'arose from the Coalition Government's so-called Ten Point Plan, a plan facilitated in the Senate with the support of Senator Brian Harradine under the advice of the Jesuit priest, Frank Brennan.' He then said:

As an aside, let me say, and as a Catholic, let me say, whenever you witness the zealotry of professional Catholics in respect of indigenous issues, invariably you find indigenous interests subordinated to their personal notions of justice and equity: because unlike the rest of us, they enjoy some kind of divine guidance.

This was reminiscent of Chifley's remark about Santamaria and the Groupers: 'one of the most dangerous individuals you could have in public life was a religious fanatic.'5 He thought 'the religious fanatic is worse than the political fanatic'.6 Keating was on to something when he spoke of indigenous interests and notions of justice and equity. But I don't think personal notions of justice and equity count for much in the public square of a pluralist democracy like Australia unless those notions can be rendered comprehensible and adoptable by other citizens who do not share your religious or philosophical world view. I was privileged to visit Brian Harradine at home in Hobart just last week. He was assuredly a very canny politician. But I have never known him to claim any sort of divine guidance when making a political decision. I definitely make no such claim.

The confusion over religion and politics is presently being played out in Australia over the same sex marriage debate. I am a supporter of civil unions. Conceding that neither side of the debate is much interested in that outcome, I have concluded that we can no longer draw a line between civil unions and same sex marriage. During the recent federal election, Kevin Rudd pulled out all stops to advocate same sex marriage legislation in the Commonwealth Parliament. Tony Abbott stuck firmly to the line that his party would maintain party policy that marriage is a relationship between one man and one woman to the exclusion of others and that the party policy would be maintained unless and until the party revised its position, including whether or not to allow a conscience vote. In the Liberal Party, as distinct from the Labor Party, members are always free to cross the floor without the risk of automatic expulsion from the party — though their prospects of promotion tend to take a nosedive.

Any extension of the civil law's definition of marriage should be the preserve of the Commonwealth Parliament with all members being granted a conscience vote. Presently the 1961 Commonwealth Marriage Act as amended states that 'marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'.

Under the Australian Constitution, the Commonwealth Parliament has power to make laws with respect to marriage. So too do the States. And since 1978, so too does the ACT Legislative Assembly. But if a Commonwealth law purports to cover the field, any State or Territory law does not operate to the extent of any inconsistency. Undoubtedly the Commonwealth will argue in the High Court that it has covered the field on marriage since 1961 and it should be left to do so. Advocates for 'marriage equality' frustrated by the slow pace of change at a Commonwealth level have decided to pursue state and territory legislation for forms of unequal and inferior marriage recognition in the hope of providing further political pressure for the Commonwealth to act.

Marriage equality advocates are pursuing marriage inequality at a state level in the hope of pressuring the Commonwealth into marriage equality. In the process they risk blowing apart the national coherence of marriage laws put in place in 1961. History points to the wisdom of a conscience vote in the national parliament on this issue.

Introducing the Commonwealth Marriage Bill on 19 May 1960, Sir Garfield Barwick indicated that he had taken a full year to prepare the legislation and he was prepared to wait many more months to debate the bill 'making with the States the several administrative arrangements which the bill contemplates'. He said: 'the measure will not be treated as a party measure and ... members will be free to adopt their own attitudes and to express them by their vote, freely.'

Gough Whitlam, Deputy Leader of the Opposition with the carriage of the matter for the Labor Party, reminded the Parliament on 17 August 1960: 'When the Attorney General (Sir Garfield Barwick) made his second reading speech on this bill, he announced that while the Government would take full responsibility for having made the proposals contained in the measure and would support them, as a government, the legislation would not be treated as a party measure, and honourable members would be free to adopt their own attitudes to it and express them freely by their votes. The Opposition has resolved to take the same course.'

Tony Abbott and Bill Shorten should ensure that their members have the same conscience vote available to them on same sex marriage.

Religion is much less relevant now to the civil definition of marriage because while the crude marriage rate continues to decline (from 7.3 in 1960 to 5.5 in 2008), the proportion of civil marriages continues to increase. A century ago, 95 per cent of marriages were church marriages; in 1969, 89 per cent of marriages were still being performed in church. By 2010, 69 per cent of all marriages were performed by civil celebrants.

Some strong advocates of traditional marriage, including the Australian Christian Lobby, have been suggesting that the matter should be resolved by referendum. That is a bad idea. In Australia, we expect our members of parliament to make the statutory law and our judges to shape the common law and interpret the Constitution. We the people vote by referendum only to change the Constitution. Occasionally there is a case to be made for a plebiscite when we are trying to determine a particular question to put to the people by referendum to change the Constitution. This is what we did when we wanted to determine whether we were ready to vote for a particular form of republic.

Groups like the Australian Christian Lobby should be careful what they wish for. If a referendum on same sex marriage, why not a referendum on (say) the death penalty? If the opinion polls are right, there is no doubt the way that one would go. Or a referendum on excluding boat people from Australia? Or a referendum on euthanasia? There are good reasons for avoiding the populist politics of lawmaking by direct popular vote of the people.

Writing in an academic journal and reflecting on the passage of the Marriage Act 1961, Barwick said: 'To bring unity to the marriage law of Australia was not, however, the main task of the architects of the Marriage Act. Their main task was to produce a marriage code suitable to present-day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other, resolved modern problems in a modern way.' This remains our task, and it is best done by the Australian Parliament exercising a conscience vote rather than State and Territory legislatures tinkering and then leaving the matter to the High Court.

As a Catholic priest and as an Australian citizen I think the public good would be best served by all parties in the federal parliament being granted a conscience vote on same sex marriage. I oppose same sex marriage laws being enacted in state and territory parliaments because they would be either inoperative or disruptive of a national code while providing an unequal form of marriage.

In August before appearing on national television to discuss same sex marriage, I did three things. I had asked the congregation at my regular Sunday mass for comment after mass and many older parishioners said that they did not want to see any discrimination against same sex couples but they were not sure that a same sex relationship was the same as their marriage. I asked a young couple whose marriage I had recently performed with a nuptial mass what they thought and they made it very clear to me that for their generation the whole discussion was a bit of a yawn and the answer for civil law was self-evident. I called a lesbian Catholic I knew who had children with her partner and she told me that she was a lesbian and always would be; that she was Catholic and always would be; that the clergy should get over this idea that they were the gatekeepers to the gospels and the sacraments because the key message was that God is love.

I think our federal politicians voting according to conscience and not according to party dictate will be well positioned to judge when the country is ready to make the change to marriage by including the unions of same sex couples. If and when they do, I will not lose any sleep over it and I will be delighted for those same sex couples who think it will help social support and endorsement of their faithful committed relationships. I will spare a thought for those older married Australians who remain unconvinced that a same sex marriage relationship is the same as theirs. I will remain vigilant that state laws and policies should not encourage the creation of children without a known biological father and known biological mother.

Leading by conscience, not populism

Chifley was the exemplar of making hard decisions for the public good. And that's what the trade-off between sectional interests and notions of justice and equity is all about. And it has to be done in the light of cold, hard political realities. There will be many such challenges confronting our national leaders in the next few years as they determine how to treat asylum seekers, how to reduce our reliance on carbon fuels, how to redistribute the wealth of the finite mining boom, how to extend insurance to those suffering disabilities, and how to enhance our education system. And they will do all these things with a Senate less predictable than we have seen in a very long time.

Chifley was Minister for Defence back in 1931 having entered parliament just three years earlier at the age of 43. Speaking to the Debt Conversion Agreement Bill on 25 June 1931, he conceded that it was a compromise unsupported even by key people in the Labor ranks. The Scullin government was besieged by Jack Lang on the left and the bankers on the right. The Senate had rejected the government's Fiduciary Bill in April 1931. So the government had to go back to tors and negotiate with the premiers and the banks. The options were: resign government; adopt the demands of the premiers and the banks cutting salaries and pensions in return for which government expenditure would continue to be underwritten; or default on loan repayments. Chifley told Parliament: 'The plan that is outlined in the bill has been attacked from various angles — by some honourable members for sentimental reasons, by many because they sincerely believe that it is a retrograde step, and by some, unconsciously perhaps, for reasons of self interest. I regret to have to say that the hostility of some members is inspired by the belief that the plan will be unpopular. The sentimental objectors are those who are unwilling to defer the realisation of the ideals for which they have striven in the Labour movement, and I appreciate their view. But, after all, what is the plan and from whom does it emanate? It is not the result of the thought of any one man or of any one political party ... .. The last conference ... included representatives of conservative opinion and the various shades of political thought within the Labour movement. There were Labour premiers who might be termed moderates, and one Labour Premier whom the militants, no doubt, regard as the ideal leader [Jack Lang of course]. Those men meeting in conference with their political opponents, were able to look deep into the economic and financial problems. They had the assistance of the most eminent financiers and economists in Australia, and from their study of the problem in the light of the facts and advice, more complete than are available to the Members of this House, this plan evolved. The sponsors of it do not pretend that it is entirely acceptable to them; some delegates no doubt regretted that it did not go as far as they thought it should, whilst others, possibly, feared that it went too far in certain directions. But they had to devise a method of restoring financial stability, and this represented a fair compromise to which all could subscribe.'

Chifley had been a minister only a few months. He had to stand on principle on a compromise in the face of opposition from near and far, including from his newfound friend in Labor, John Curtin. He took the advice of experts. He mastered the brief. He followed due political process. He honoured Cabinet solidarity. He did not descend to ad hominem attack. He felt the pain deeply. He told Parliament: 'I do not wish to introduce personal passion into this debate; I would prefer to give to the opponents of this plan credit for sincerity, but I might easily contrast their attitude with that of men who are taking an unpopular stand which may lead to their political extinction.'

Chifley was a political realist. He was prepared to walk wide eyed off the precipice into political oblivion because no other course of action would satisfy his conscience when he tried to balance sectional interests and the common good in the scales of justice. He said, 'I do not know how the people that I represent will view my action. I know that it is popular to decry those who support the plan. Unpalatable and distasteful though it is, I am giving it my support, because I believe that if the Government fails to do something in a general way to rectify the position, national ruin is inevitable. I hope that it will be possible to modify the proposals, and to soften their severity. But the members of Parliament are charged with a national responsibility, and their personal concerns must be temporarily set aside. I am not like the honourable member for Adelaide (Mr Yates), who airily says that he does not care what happens. I do care. I do not want to lose my seat in Parliament. I appreciate the trust placed in me by my constituents, and regard it as an honour to represent them here. I am endeavouring to do the right thing ... .The motive that inspires the action taken by a man counts a great deal when his conduct is judged. This plan is backed by men who have had experience in governing the country, who know the facts and who see the position clearly; but those who oppose it have nothing but hope to support their attitude.'

It's a long time since we have heard any such stand in principle taken by any of our politicians. And yes, it was to mean nine years in political oblivion. But then phoenix like, Chifley, bloodied and strong, was able to take on the mantle of leadership during the most critical days of World War II. Back then in 1931, he told Parliament, 'My action in this matter may mean my political extinction. Possibly it will not be justified by events to follow. However, the personal political welfare of the individual must be set aside. It is the nation that counts in a crisis such as this. If my constituents consider that I have failed, and that my action, however sincere, is wrong, I shall abide without complaint by their decision. While I am in this Parliament I must endeavour to help the country to emerge successfully from this, the greatest economic crisis in its history. My action is not the outcome of egotism, of the belief that everything that I do is right. It is taken in the belief that this plan embodies a general solution that will prevent the country from lapsing into chaos.'

He concluded his apologia pro vita sua to Parliament with these words: 'If we, in this Parliament, can do something to prevent such a lamentable condition of affairs, we shall at least have served honestly the persons whom we are sent here to represent.'

The National Advocate reprinted the speech in full describing it as 'sincere and statesmanlike'.12 Back home, Chifley was running into trouble with his union and there were moves to expel him. He wrote to the branch chairman saying: 'I have never had any illusions about the hard road I travel but the attacks of opponents or even loss of faith by my friends will never cause me to do anything but what I believe the best possible for the people in the circumstances. My views or actions may appear wrong — they may be wrong. But they are what I sincerely believe to be right.' On 4 October 1931, his union expelled him. He appealed the decision but the divisions in the union were so bad that he decided to withdraw his application on the very day that Jack Lang's leader in the federal parliament voted with the Opposition bringing down the Scullin government. At the ensuing election Chifley lost his seat by just 476 votes being besieged on two sides by the UAP and the Langite Tony Luchetti. It would be nine years before he was back again as a member of the House of Representatives. On his return, Curtin immediately made him Treasurer and a member of the War Cabinet. And Luchetti became his campaign manager. 

Doing the right things with justice and compassion and the tough things in the national interest

I wonder what Chifley would have done when confronted with the poisonous cocktail of the contemporary asylum issue. Would he have tried a Pacific Solution, a Timor Solution, a Malaysia Solution, or a PNG Solution? After the 12 years of angst over the issue, what would he have done from the Opposition benches today? Both sides of Australian politics are now committed to stopping the boats but disagree as to how it might best be done. The minor parties (Greens, Palmer United and DLP) have some ethical objections. The Abbott government has been elected with a strong mandate to stop the boats. For the next few months, the new government will not be much interested in public discussion about the ethics of the policy. It will be more a matter of 'whatever it takes'. If the boats do stop, it might then be opportune to commence discussion about how Australia might contribute to better processing and protection of asylum seekers upstream in Indonesia and Malaysia. If the boats do not stop, the government will need to engage the community about the ethical bottom line for long term detention and banishment of refugees to countries such as Nauru and PNG. Chifley would think it time to set down a few incontrovertible ethical parameters. He would take professional advice. He would insist on a fair go for all — those on boats, those stranded in remote camps, and those trapped in transit countries. He would not take refuge in flowery rhetoric or one line slogans.

Though most of our neighbours are not signatories to the Refugees Convention, Australia should remain a party to the Convention, and refugee advocates should stop overstating or misstating the rights protected by the Convention and the UN Declaration of Human Rights (UNDHR). Article 14(1) of the UNDHR provides: 'Everyone has the right to seek and to enjoy in other countries asylum from persecution.' Back in 1948, the drafters had suggested that a person have the right to be 'granted asylum' — a legal right to just turn up here by boat! Australia was one of the strong, successful opponents, being prepared to acknowledge only the individual's right 'to seek and enjoy asylum', because such a right would not include the right to enter another country and it would not create a duty for a country to permit entry by the asylum seeker. That's why Article 31(1) of the Refugee Convention deals as it does with the illegal entry or presence of an asylum seeker who has entered or is present without authorisation. It provides: 'The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.' The immunity from penalty is restricted to refugees 'coming directly from a territory where their life or freedom was threatened'. The Australian Government website is correct when it states: 'International law recognises that people at risk of persecution have a legal right to flee their country and seek refuge elsewhere, but does not give them a right to enter a country of which they are not a national. Nor do people at risk of persecution have a right to choose their preferred country of protection.' There is a right to leave your country. There is a right to re-enter your country. There is a right to seek asylum. But there is no right to enter another country of which you are not a national — even to seek asylum. Should you have succeeded in entering another country not your own, whether legally or illegally, you have a right to enjoy asylum if you are a refugee.

Chifley would concede that the moral argument is another matter. But it is important to be clear about Australia's international obligations under the UNDHR and the Convention on Refugees. Unfortunately even the website of the Refugee Council of Australia is wrong when it states: 'The UN Refugee Convention (to which Australia is a signatory) recognises that refugees have a right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity documents.' Given that most of our neighbours are not signatories to the Refugee Convention, there is no point in over-stating our legal obligations when we come to the moral arguments and the diplomatic negotiations that will be required to enhance the processing and protection of refugees in our region. It would be folly to abandon the international legal instruments and just rely on moral argument and diplomatic negotiations. We should maintain the safety net of law. The political atmosphere is such that the safety net will become so frayed as to be useless if refugee advocates continue to overstate and mis-state the law.

There is no doubt that the reforms of July 2008 instituted by the Rudd Government and not opposed by the Nelson Opposition contributed to a sharp increase in the arrival of boat people. The annual arrivals continued to spiral upwards — from 2856, to 6689, a brief drop to 4730, then up to 17,271, and then up again to 25,145. By the time Kevin Rudd had become prime minister for the second time in June 2013 the boat arrivals were running at 3,300 per month (40,000 per annum). There was intelligence available that the people smuggling networks were now so adept at plying their trade in Indonesia that the numbers could escalate even further. These increases were not related to increased global refugee flows nor to new refugee producing situations in the region. There had been at least 900 deaths at sea since the 2008 reforms were instituted. Something had to be done — not just for crass political gain but for sound ethical reasons.

Since the High Court's rejection of the Gillard government's Malaysia solution, there has been a need to consider how ethically and practically to stop the boats. The lack of bipartisan agreement meant that the recommendations of the Houston panel could be only partially implemented. In the medium term, it might be possible to negotiate a regional agreement involving at least Australia, Indonesia and Malaysia. An agreement, with UNHCR backing, could provide basic protection and processing for asylum seekers transiting Malaysia and Indonesia. Asylum seekers headed for Australia could then be intercepted and promptly screened to determine that none was in direct flight from persecution in Indonesia. They could then be flown back safely to Indonesia and placed at the end of a real queue. Provided the necessary screening was done, it could then be appropriate to adopt Alexander Downer's suggestion: 'Australia would fly back to Indonesia anyone who arrived here by boat without a visa. In exchange, Australia would take, one for one, UNHCR approved refugees from refugee camps in Indonesia.' Such an agreement would take many months, if not years, to negotiate and implement. Admittedly, it would not provide a short term solution to stopping the boats.

Kevin Rudd's pre-election agreements negotiated with Papua New Guinea and Nauru and first announced on 19 July 2013 were aimed at stopping the boats. It was the equivalent of a 'shock and awe' measure, threatening dreadful outcomes for people, hopefully deterring them from even considering getting on board a boat. During the election campaign, both major political parties tried to convince the electors that they would be able to design policies which stopped the boats.

During its last year in office, Labor had increased the humanitarian component of our migration program from 13,750 to 20,000 places — with 12,000 of those places being allocated to refugees offshore, 8000 being available for refugees onshore and the special humanitarian program. The Coalition initially supported the increase but reversed this commitment during the election campaign. The Abbott Government says it will provide only 2750 places for onshore applicants.

If adopting the key planks of the Rudd plan, the Abbott government could give the 'shock and awe' response greater ethical coherence if they took the following seven steps. These are steps of which I think Chifley would approve.

First, Tony Abbott should continue discussions with Jakarta with an eye to a negotiated agreement with both Indonesia and Malaysia aimed at upstream improvement of processing and protection.

Second, the Abbott Government should return to its previous commitment to increase the humanitarian quota to 20,000.

Third, Scott Morrison should order an ethical reassessment of the plight of those who came by boat to Australia after the Rudd announcement of 19 July 2013 without notice of the new shock and awe policy, bearing in mind that many of those who arrived immediately after 19 July had received no notice of the new policy. This was admitted by Minister Tony Burke when he told the media on 22 August 2013: 'First week after the announcement, the figures remained very high, but let's not forget those figures include people who are already at sea'.

Fourth, Scott Morrison should undertake to care for unaccompanied minors who arrive in Australia's territorial waters until they can be safely resettled or safely returned to their family or to the guardians in transit from whom they were separated.

Fifth, Scott Morrison should institute safeguards, including a transparent complaints mechanism, in PNG and Nauru consistent with the safeguards recommended by the Houston Panel for both Pacific processing countries and for Malaysia under the Malaysia Solution.

Sixth, Tony Abbott should introduce a bill to Parliament this month detailing the measures aimed at stopping the boats, thereby putting beyond legal doubt the 'shock and awe measures' implemented on the eve of the election campaign without parliamentary scrutiny, and locking in the major political parties so that petty party point scoring might cease. The debate on the bill will allow both sides of the Chamber to purge themselves of the hypocrisy that has accompanied Labor's unctuous condemnation of John Howard's Pacific Solution and the Coalition's unctuous condemnation of Julia Gillard's Malaysia Solution. The bill would undoubtedly win the support of the major political parties, restoring a more bipartisan approach as existed in July 2008 when Minister Chris Evans announced 'the seven key immigration values' then unanimously embraced by the Parliament's Joint Standing Committee on Migration.

Seventh, the government should commit itself to the prompt processing onshore of Papuan asylum seekers in direct flight from West Papua. The Coalition's Policy on asylum seekers published during the election campaign states, 'The Coalition will work with our regional partners to address the secondary movement of asylum seekers into our region as a transit point to illegally enter Australia through the establishment of a comprehensive Regional Deterrence Framework'. Papuans fleeing persecution at home are not engaged in secondary movement. If refugees, they are in direct flight from persecution. The Abbott government should recommit to our obligation under the Refugees Convention to grant asylum to refugees who have entered Australia in direct flight from persecution.

While waiting to see if the boats do stop, all Australians can consider how better to contribute to protection and processing of asylum seekers in the region.

Keeping the light on the hill shining into the dark crevices

Those who think stopping the boats is a major national emergency have no historical sense of perspective. Those who think the Gonski educational reforms and the proposed National Disability Scheme are big reforms need to consider the leaps and bounds made with post war reconstruction. Chifley as Treasurer was Curtin's right hand man in financing the national war effort. As prime minister, he then forged the post-war reconstruction. Think just of the Snowy Mountains Scheme and the Holden motor car for starters. There were big blunders along the way including the attempted nationalization of the banks. An opponent as wily a Menzies was well able to capitalize on such mistakes. With a swing of 3.7 per cent against it, the Chifley government lost power on 10 December 1949. The Coalition held 74 seats to Labor's 47. During that election campaign, Chifley said, 'It is the duty and the responsibility of the community, and particularly those more fortunately placed, to see that our less fortunate fellow citizens are protected from those shafts of fate which leave them helpless and without hope ... That is the objective for which we are striving. It is ... the beacon, the light on the hill, to which our eyes are always turned and to which our efforts are always directed.' Tony Luchetti later made the claim: 'Ben got that from me originally, you know, because in our first clash in '31, I said, 'The Lang plan stands as a beacon to lead men on to the path that they should travel for better times etc. etc.' and that theme, that light on the hill, was accepted by Ben and Ben started to use it.' I will leave it to the historians to work that one out. Suffice to say that the phrase is now identified with Chifley and not with the old Lang forces who had opposed him so vociferously for so long. No doubt, Ben Chifley had in the back of his mind the scripture verses:

You are the light of the world. A city set on a hill cannot be hidden. Nor do people light a lamp and put it under a basket, but on a stand, and it gives light to all in the house. In the same way, let your light shine before others. (Mt chapter 5 verses 14–16)

As Leader of the Opposition, Chifley started running out of puff. He was not helped by Evatt deciding to appear in the Communist Party Dissolution Case. But he was not embittered. And he did not lose sight of his core values. His last major political speech was to the Labor Party Annual Conference of NSW Branch on 10 June 1951. He expressed his confidence that another war was less likely than 12 months before but that there were major challenges on the economic front nationally and internationally. He said, 'If, from time to time, the policy is not favoured by the majority of the people there is no reason why the things we fight for should be put aside to curry favour with any section of the people. I say to you that, in the period I have been leader, I have always believed that the Movement has to make up its mind what is the right thing to do and, no matter what the daily press says or any section of the community might say, we must go on fighting. I hope the spirit which animated the people who began the Labor movement goes on today.'

He concluded: 'I can only hope that the sincerity which you have shown over the years in victory and defeat won't be lost; that you will be inspired by the same things which inspired the pioneers of this Movement, and that you will not be frightened and made to get over to the 'right' because of the whispered word 'Communist'. I could not be called a 'young radical' but if I think a thing is worth fighting for, no matter what the penalty is, I will fight for the right, and truth and justice will always prevail.'

In last year's Light on the Hill address, Bill Shorten said, 'That's what the light on the hill means to me — equal opportunity — a truly fair go.' He spoke of the remarkable Australians who keep the fire burning: 'They are my light on the hill — each and every one of them is an incandescent beacon.' He actually said 'are'. I must have a word to his old English teacher back there at Xavier College about that. We expect more from our Jesuit products, no matter what side of the House they are on! Chifley was more expansive in his own Light on the Hill address. He looked offshore, contemplating Australia's place in the world and our relative affluence and security. He said: 'Labour has fought to give the Australian people equality of opportunity and a decent standard of living. But nobody has fought in Asian countries to give the people anything of that character. That struggle has now begun ... The Australian people cannot cure the evils in Asian countries nor, indeed, the economic evils that befall the countries of Europe — whether western or eastern Europe. All we can do is, by our own example, by such assistance as we can give, by way of advice, or by direct financial assistance, play our own very small part in a great world which is filled with economic trouble.'

This year on Social Justice Sunday, the Australian Churches issued statements on the need for Australia to contribute more in foreign aid and assistance particularly to our near neighbours. Both sides of politics went into the election campaign committed to cutting our aid budget. We would do well to recall Chifley's final address when he said: 'I do not think that we are so narrow-minded and parochial that we want good conditions for ourselves, but are entirely indifferent to the needs of hundreds of millions of workers in the world. The Labour movement has a much wider conception than that — to help everybody in the world who is not as fortunate as we are.'

Those of us schooled in the Christian tradition often contemplate the parable of the Good Samaritan, as Chifley surely did. That parable works well for one stray Jew fallen by the wayside in desperate need. It works even better when the travelling Samaritan has access to a trusting Jewish innkeeper who will offer credit on spec. It needs some imaginative discernment once you postulate hundreds fallen by the wayside, millions even more desperate in faraway places, and institutional innkeepers who have shareholders or voters to satisfy. The gospel message of charity and justice must always be prophetic, pedagogical and practical. The democratically elected leaders of a robust pluralist nation such as Australia have to accept that they cannot help everyone in need on the planet and they are elected to maintain secure borders and a standard of living for our citizens which could not be emulated for all persons on the planet. Chifley was not averse to thinking in universal terms. He said in that last address: 'I have tried to think, when facing these things, of all the people of the community and not to think of any one particular section — because if the Labour movement means anything at all it means justice to all.' When speaking of the job of any Labor minister, he said, 'The job of the evangelist is never easy.'

He was not just about charity nor just about tending to the isolated person in need by the side of the road. For him, politics was a more universal, evangelical calling demanding structural change. He said, 'I try to think of the labour movement, not as putting an extra sixpence into somebody's pocket, or making somebody Prime Minister or Premier, but as a movement bringing something better to the people, better standards of living, greater happiness to the mass of the people. We have a great objective — the light on the hill — which we aim to reach by working for the betterment of mankind not only here but anywhere we may give a helping hand. If it were not for that, the Labour movement would not be worth fighting for. If the movement can make someone more comfortable, give to some father or mother a greater feeling of security for their children, a feeling that if a depression comes there will be work, that the government is striving its hardest to do its best, then the Labour movement will be completely justified. It does not matter about persons like me who have our limitations. I only hope that the generosity, kindliness and friendliness shown to me by thousands of my colleagues in the Labour movement will continue to be given to the movement and add zest to its work.'

Policy, politics and public morality all had their place for Chifley. He was on about much more than individual action, individual rights and non-discrimination. Rather than focusing on sectional interests, rather than invoking ideas of class warfare or gender warfare, he placed the common good, the public interest, centre stage. If leading us today, he would insist that we accommodate group rights as well as individual rights, collective action as well as individual action, and the legitimate aspirations of those who are so 'other' or so vulnerable as not to count in the political calculus or judicial reasoning. He would be at home with those citizens who both think outside the square of present orthodoxy in pursuit of the universalism which alone guarantees protection of those both inside and outside the square, and have the prudence to know when the square needs to be redrawn.

This week at the National Press Club, George Wright, ALP National Secretary said, 'At this election the Liberals won the past. But they did not win the future.' Neither did Labor. The challenge now is to look to the past and to see how the future can be won through leadership which is both cunning and selfless, pragmatic and idealistic. The Abbott government has announced an audit of all government programs with a stipulation that'government should do for people what they cannot do, or cannot do efficiently, for themselves, but no more.' Chifley would ask government to do two more things: to do for people those things which guarantee their fundamental rights and entitlements and those things which enhance their capacity decently to help and co-operate with their neighbours. In other words, he would insist that the government, regardless of the efficiency of individual action, assist with the provision of a social safety net and of a social web for fostering community engagement. Chifley would urge us all to hold respectfully both to the idealism of the light on the hill and to the pragmatism of the hip-pocket nerve, each of which commanded his use, if not his original authorship. The country continues to be well-served by the leadership example of Joseph Benedict Chifley. Long may his light shine on the dark crevices of our contemporary political landscape. May the light on the hill continue to shine on the path of our common quest, motivated by public service and not the spoils of office. May we take practical steps on that path, united not divided, towards our celebrated ideal of a fair go for all. With hope and realism, may we celebrate Leonard Cohen's 'Anthem':

Ring the bells that still can ring
Forget your perfect offering
There is a crack, a crack in everything
That's how the light gets in.
That's how the light gets in.
That's how the light gets in.


Frank Brennan headshotFr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

Topic tags: Frank Brennan, Bathurst Panthers Club



submit a comment

Existing comments

Frank's address was probably one of the best I've heard in 20+ years of attending the Light on the Hill dinner. In these words Frank reflected truly the qualities of Chifley and the movement he led. He has once again demonstrated himself to be a leading figure in Australian public life and letters.

Mat Martin | 03 November 2013  

Thank you Father Brennan. I have five children and seven grandchildren. My husband of 48 years died three years ago. Our youngest daughter is a lesbian and married her chosen life partner in Canada three years ago. My daughter is the biological mother of a beautiful little girl now two years old. The child's father is a long-time friend of her parents. Little Ruby is a much loved and adored member of her extended family. I pray my daughter will one day have her relationship legally recognized in her own country.

Cecily Foley | 05 November 2013  

Having had my attention drawn to Fr Frank Brennan’s criticism of the Refugee Council of Australia’s understanding of the right of a refugee to seek asylum, I feel I must respond. Fr Brennan may be technically correct when he claims that the Refugee Convention does not guarantee refugees a right to enter a country but his argument is nothing more than semantics. In “The Refugee in International Law”, Professors Guy Goodwin-Gill and Jane McAdam note that states have a duty not to obstruct the individual’s right to seek asylum, basing this on Article 14 of the Universal Declaration of Human Rights and the principle of non-refoulement in the Refugee Convention. This means that Australia has a duty under international law not to remove a refugee to persecution or other forms of serious harm, even if they have arrived without a visa or identity documents. We will amend the text on our website so that we are more technically correct but the message will, in effect, remain the same. I am comfortable with the Refugee Council of Australia basing its understanding of international legal instruments on the writings and advice of Professors Goodwin-Gill and McAdam.

Paul Power, CEO, Refugee Council of Australia | 09 November 2013  

I am pleased that the Refugee Council is amending its website so that it is more technically correct. Those interested in the legal issues will see that I have quoted Professor Goodwin-Gill at some length in my earlier Marshall Lecture at http://www.eurekastreet.com.au/article.aspx?aeid=37066. I agree with Paul Power, CEO of the Refugee Council, that “Australia has a duty under international law not to remove a refugee to persecution or other forms of serious harm, even if they have arrived without a visa or identity documents”. But that does not mean that Australia has a legal duty (voluntarily assumed by signature of an international legal instrument) to allow unvisaed asylum seekers entry to Australia in the first place. Paul now seems to agree that technically “the Refugee Convention does not guarantee refugees a right to enter a country” He then says this is “nothing more than semantics”. There is a world of difference between having a legal right to enter and not having a legal right to enter, between having a legal duty to admit and not having a legal duty to admit. I have never understood Professor Goodwin-Gill to say anything different, whether technical or otherwise. Given the present political situation in Australia, I would have thought it necessary that we all have the law right on this one. I readily concede that the moral argument is something different, but the moral argument should not be mounted on the back of a technically incorrect legal argument. That, in the present situation, will simply do a disservice to asylum seekers and undermine the credibility of their advocates.

Frank Brennan SJ | 10 November 2013  

Readers wondering about the right of entry to seek asylum might consider the judgment of Justice Gummow in the High Court in MIMA v Ibrahim. He said:First, it has long been recognised that, according to customary international law, the right of asylum is a right of States, not of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a State of which that individual is not a national[114]. The proposition that every State has competence to regulate the admission of aliens at will was applied in Australian municipal law from the earliest days of this Court. ........... As Professor Sir Hersch Lauterpacht pointed out at the time[118], the Universal Declaration of Human Rights adopted in 1948, that is to say, shortly before the formation of the Convention, was accompanied by a general repudiation by member States of the idea that the Declaration imposed upon them a legal obligation to respect the human rights and fundamental freedoms which it proclaimed. Article 14 declared that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution". But this right "to seek" asylum was not accompanied by any assurance that the quest would be successful. A deliberate choice was made not to make a significant innovation in international law which would have amounted to a limitation upon the absolute right of member States to regulate immigration by conferring privileges upon individuals[119]. Over the last 50 years, other provisions of the Declaration have, as Professor Brownlie puts it, come to "constitute general principles of law or [to] represent elementary considerations of humanity" and have been invoked by the European Court of Human Rights and the International Court of Justice[120]. But it is not suggested that Art 14 goes beyond its calculated limitation[121]. Nor was the matter taken any further by the International Covenant on Civil and Political Rights ("the ICCPR"). This entered into force for Australia on 13 November 1980[122]. Article 12 of the ICCPR stipulates freedom to leave any country and forbids arbitrary deprivation of the right to enter one's own country; but the ICCPR does not provide for any right of entry to seek asylum and the omission was deliberate[123]."

Frank Brennan SJ | 18 November 2013  

"We the people vote by referendum only to change the Constitution." Former ACT Master Alan Hogan : "People on both sides seem to assume that the Federal parliament can do what it likes. It can not. It can make laws with respect to "marriage and divorce", because the Constitution says so. But the words have the meaning that is in the Constitution. There are persuasive statements by High Court judges that the word marriage in the Constitution means monogamous and heterosexual marriage. The Parliament can not expand the meaning of constitutional words that give it power. It might be possible at some future time to persuade a majority of the High Court to rule that the word could include homosexual marriage. But the point is that it is the High Court, and not the Parliament, that has the power to do that. Alternatively it could be done by an amendment to the Constitution pursuant to a referendum. Federal Parliament does not have power to make laws with respect to same sex unions." So, a referendum (or High Court decision) would seem to be in order. Perhaps the Australian Christian Lobby was on to something?

Name | 19 November 2013  

Yesterday, the High Court gave a decision in a refugee case. Justices Kiefel and Keane said, "[I]mmigration detention is readily characterised, not as a mode of punishment for an offence, but as a means evidently capable of serving the purpose of ensuring that an alien who presents uninvited and unheralded at the border with no right to enter Australia does not do so while consideration is given by the Australian government to whether permission to enter should be given."

Frank brennan Sj | 12 December 2013  

Similar Articles

Too much order with too little law 30 years on

  • Frank Brennan
  • 23 July 2014

'Undoubtedly there are many challenges confronting our elected leaders in dealing with violent crime and with pathological sex offenders. But long-term sustainable solutions must be based on respect for judicial independence and for the role of the legal profession.' Frank Brennan addresses the Queensland Council for Civil Liberties at The Irish Club, 175 Elizabeth St, Brisbane 8 July 2014.


The criminal law 30 years on

  • Frank Brennan
  • 12 October 2016

With idealism and pragmatism, I invite you criminal lawyers in the next 30 years to imagine and enact a better criminal justice system which alleviates rather than exacerbates the devastating effects of colonisation and marginalisation on Indigenous Peoples, and most particularly their children. An intelligently designed criminal justice system must help secure the foothold of Indigenous children in both the Market and the Dreaming.