2017 Lionel Bowen Lecture, Marcellin College, Randwick, 30 August 2017. Listen
A couple of weeks ago, many of us gathered in St Mary's Cathedral for the requiem mass for the late Johno Johnson. Bob Carr, who had been Lionel Bowen's campaign organiser for many years and later Premier of New South Wales, delivered the eulogy. Carr declared, 'The separation of church and state was not a fetish of John Richard Johnson. He adored the Cross on Calvary. And rallied to The Light on The Hill.' The same could be said of the man we honour tonight: Lionel Frost Bowen. In his homily at last fortnight's requiem, Archbishop Anthony Fisher recalled Johno's last speech in Parliament when he said, 'Traditions are important. Be it on your head if you do not keep them. Look after the young.' The Archbishop then said, 'It is a serious question whether a man of Johno's character and ideals would be welcome in our political parties and achieve such prominence in our parliaments today.' That is a question for the Marcellin College community as you gather to honour Lionel Bowen, one of the proudest products of an Australian Marist education.
In 1937, Lionel left Marist Brothers Randwick when he was only 14 years old. His mother had laboured as a school cleaner to bring up the kids. Lionel went straight into the workforce to help his Mum support the household. At 24, he was the youngest ever Mayor of Randwick Council. He then became State Member for Randwick, Federal Member for Kingsford Smith, ultimately holding the position of Deputy Prime Minister of Australia for seven years. He died in 2012 at the age of 89. He had lived in the same home for 73 years. He and his wife Claire had eight children. Two generations of his family have already attended Marcellin College.
Susan Ryan who is with us tonight has very fond memories of Lionel. Susan having been a minister for education, a senator, and a human rights commissioner is here this evening as the proud grandmother of Amir Butler, a Marcellin student. As a young girl at the Maroubra Brigidines she had the honour of welcoming Lionel to her school when he was the local member. Years later, they were colleagues in the Parliament. Susan tells me that Lionel was 'socially conservative, maintaining a strong Catholic faith'. 'You could always count on him to be on side with any social justice measure. He would do anything for poor women, and particularly for children being reared by single women.' 'His Catholic beliefs didn't lead to fights or discarding people as if they did not belong. He was beloved in the electorate.' Susan says, 'Lionel Bowen, or Frosty as Mick Young used call him, was one of the most likeable and decent persons I ever met in politics'.
The morning after Bob Carr was elected Premier in 1995, Lionel Bowen by then a retired, ageing man went to the effort of visiting Bob at his parliamentary office. Carr later recalled, 'It was a measure of our friendship over the decades — our engagement in local politics, me helping him as his campaign director, as someone helping him get preselection votes — that he turned up to say to me, in effect, "Well, you never succeeded me in my seat as we sort of planned, but I am here as one pro to another to say, 'It is nice to see you become Premier.'" He shook my hand and his smile and the light in his eyes meant a great deal to me.'
That hand shake, that smile, and that glint in the eye carried Bowen through many stormy political conflicts as he sought to do good and justice for all.
Tonight, you have asked that I pay tribute to Lionel Bowen addressing the topic, 'Citizenship and the Common Good'. What is the common good? We Australians now are used to hearing a lot about rights, and occasionally some public talk about responsibilities and duties. We are committed to the fair go and mateship. We pride ourselves on providing a safety net for fellow citizens who fall through the gaps not being able to find paid employment or not being able to afford basic health care, housing or education. We have become an increasingly individualist society emphasising the rights of the autonomous individual being free to do their own thing provided they do not interfere with the rights of others wanting to do their own thing. But is there more to a good life than this individual freedom?
The American theologian Fr David Hollenbach SJ recently spoke on 'The Glory of God and the Global Common Good: Solidarity in a Turbulent World'. Hollenbach says that 'the common good is a normative concept with a rich history'. Sometimes it just means 'the greatest good for the greatest number'. But then it can also mean 'the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfilment'. Hollenbach thinks it is also useful to look at what economists call 'public goods'. He says, 'A public good is a good present for all members of a community when it is present for any of them. If it is absent for some, it is absent for all. For example, when a city creates the public good of an effective system of traffic lights, it benefits all drivers. More technically, public goods are "nonrivalrous in consumption."' We might think of climate change and the common good to be achieved by ensuring that our planet is sustainable for future generations. This needs to be done with market forces ensuring that everyone pulls their weight and that there are no free riders enjoying the benefits without paying the costs. Energy producers need a renewable energy target so that the market might set prices with certainty and equity and so that the producers can plan, invest and research for the future.
When Lionel Bowen died, there were great tributes paid to him in the Federal Parliament. Senator John Faulkner the straight-talking torch bearer of Labor values in turbulent times told the Senate: 'Lionel Bowen saw public service not as a vehicle for personal advancement but as a vocation with the purpose of improving the lives of others and serving in the nation's interest. His time on the national stage never diminished his deep commitment to his local community. As my colleague Senator Bob Carr said — and Bob, of course, knew him so well: "He knew suburban politics like the back of his hand."'
Contemporary issues of the Common Good and the tradition of Lionel Bowen
Same sex marriage
At the moment, there is a lot of talk about same sex marriage and the pending plebiscite or survey. I daresay that like most politicians of his era, Lionel Bowen would not have been too comfortable discussing this topic. It is after all a topic on which social thinking has moved very rapidly and in just a few years. Let's not forget that even politicians like Julia Gillard and Penny Wong opposed legislative change to the Marriage Act last time the issue came up squarely for debate and a vote in the Parliament. But I think there was one controversy in which Lionel was involved that does provide good lessons for the contemporary Catholic considering the desirable law or social policy on a contested issue — lessons for the citizen weighing what is for the common good.
Back in 1979 there was debate in the Parliament on a motion which was framed to stop Medicare funding of abortions. Bowen, a strict Catholic, was strongly opposed to the motion. He did not think the motion was about abortion. He thought it was about money. In those days, there were no women in the House of Representatives. He told the House:
Let us have a look at the challenge that is before us. We are an all male jury. Which one of us will send a woman to gaol? Not one of us. ... What about adopting a positive resolution on what we can do for women in order to guarantee that they can retain a child and not be subjected to the physical and mental disturbances that obviously occur? What about offering a living wage to the woman who is pregnant and has no other source of income? ... .As I said at the outset, this motion has nothing to do with abortion. I am against it and always have been but I understand other people's views. I have to accept them. I cannot legislate for morality. Example is the way to do it. There is no other way.
I daresay this stand did not commend Bowen to some of the bishops. But equally I daresay that he would have been respectful of the bishops who have their teaching role in the Church hoping they would be respectful of his role as an elected member of parliament committed to the common good for all, and not just for Catholics or for those who agree with their moral world view.
Though a committed Catholic, I could vote 'yes' in a survey on same sex marriage while hoping and demanding that the parliament do the hard work on religious freedoms when considering amendments to the Marriage Act. I am one of those Australians who will be pleased when same-sex marriages are recognised by Australian law but with adequate protection for religious freedoms.
To those Catholics who are very concerned about my indication that I will vote 'yes' at any plebiscite or survey on same sex marriage, could I make three observations:
Civil marriage in Australia is a contract terminable on one year's notice by either party. The parties are then at liberty to enter in to a new contract with another party, and to do so ad seriatim. The parties can enter into the contract with an intention not to bear and nurture each other's children even if they be physically capable. None of these present attributes of civil marriage in Australia coincide with the aspects of a sacramental marriage recognised by the Catholic Church.
With civil marriage being expanded to include same sex couples as contract partners in countries like UK, USA, Canada and New Zealand, there will be an increasing number of couples civilly married in those countries living in Australia. It will be more and more difficult to deny recognition of those civil marriages here in Australia when the couples are ageing and needing spousal rights and recognition in hospital etc.
There are an increasing number of children being raised by same sex couples. The number is not going to decline. Those children deserve to be brought up in a society where there is a public commitment to respect and affirmation of their family arrangements.
Those of us who are Catholic have multiple affiliations. We are members of the Catholic Church affirming the sacramentality of marriage as defined by our Church and we are citizens of a pluralistic democratic society under the rule of law affirming the legitimacy of committed relationships which are solemnised at law in the hope of contributing to the well-being of the couple and of their children.
We Australians are presently debating what is the fairest way to fund schools ensuring a fair go for all students regardless of whether they are attending state schools, Catholic Schools or independent schools. There are still issues to be worked through, especially given the Turnbull government's clunky mode of consultation with key stakeholders. But for us citizens committed to the common good, and not just to our own self-interest, the career of Lionel Bowen holds some good lessons.
In 1973, the newly elected Whitlam government was wanting to legislate a new deal for school funding. The Education Minister Kim Beazley Snr was out of action. Whitlam called Bowen in and said, 'Look, this is a very important piece of legislation and I was wondering if you would do it'. Bowen recalls, 'Gough in his own way, and this is for the sake of the record, says, "I don't know whether I can trust you. You're a Catholic and I don't know whether I can trust Catholics with this legislation." I said, "Well I am a Catholic but that's not a reason you can't trust me."' When Bowen managed to get the legislation through, despite Malcolm Fraser's pledge that it would never pass the Senate, Whitlam said to Bowen, 'Well perhaps Bowen you will be my successor and not Bill Hayden'.
There was a lot of political intrigue masterminded by Bowen to convince the Country Party to pass the legislation. It involved that great political device — the cheque book. That need not detain us here. But as Acting Minister for Education, Bowen steered the Schools Commission Bill and the States Grants (Schools) Bill through Parliament enunciating some very clear principles for the common good. On 12 December 1973, he told Parliament:
The Government's basic objective during the debates on the Schools Commission Bill and the States Grants (Schools) Bill has been to secure Parliamentary endorsement, of the needs concept in the determination of grants from the Australian Government to both government and non-government schools ... The Government has also sought to have the Schools Commission established as an independent statutory advisory body which will recommend measures for raising the standards of education in schools and for eliminating inequalities in opportunity among Australian school children.
He even threatened the Opposition that the government would be prepared to fight for the needs policy at a double dissolution election. He told Parliament:
We would much rather take this issue to the people on the basis of what we believe to be a proper distribution of resources, but do not let us fool around with that issue. .... However, we do not accept the principle put forward by the Opposition. We have compromised on the basis that we got the Schools Commission. We will fight the next election on this principle. Let us say that perhaps for once and for all we have taken out of the auction the State aid vote. For once we might get rid of this matter in the interests of this nation, and I believe that that is the best thing that could happen.
This was a magnificent achievement for Bowen. It was only many years later that he allowed to be published his view that our beloved Gough was a difficult person to deal with as leader of a government. Bowen said, 'Politicians are all subject to tantrums but Gough was more continuous about it ... .Under pressure leaders do have a lot of eccentricities, idiosyncrasies and bad bursts of temper because they're under pressure. But I think Gough had what you'd call temperamental instability'. Achieving the common good is not always plain sailing and its rarely achieved in company only with like-minded, easy going companions.
I know there are still some strong concerns among some Catholic educators about the equity of what is being proposed by the Turnbull government and their education minister Simon Birmingham. There is clearly a need for the government to revise the application of the laudable Gonski principles ensuring that every Australian child has a fair go at accessing a good education, within the funding constraints of the government of the day committed to 'budget repair'. For its part, the Catholic sector should ensure its schools are more available to the poor, enacting Pope Francis' desire: 'I want a Church which is poor and for the poor.' We will be citizens committed to the common good, honouring the memory of Lionel Bowen if we insist on funding arrangements which ensure access to education equitably for all, especially the poor and disadvantaged, regardless of what type of school they attend.
Lionel Bowen as Attorney General was very dedicated to constitutional change. He set up a high powered Constitutional Commission to review our outdated Constitution. Unfortunately, his Prime Minister and cabinet colleagues did not have the same interest as he had in painstakingly pursuing the reforms. If only they had, we might have avoided some of the turbulence in our parliament on questions of citizenship these last few weeks. We might have spared the High Court a lot of headaches.
The 1988 Constitutional Commission which included Gough Whitlam and Rupert Hamer as members recommended that the pesky section 44(i) of the Constitution be deleted and not replaced. They further recommended that the Constitution 'be altered to make Australian citizenship a necessary qualification for membership of the Parliament'. They also thought the Parliament should have the power to impose a qualification requiring members 'to comply with reasonable conditions as to residence in Australia'. Twenty-nine years ago, the Constitutional Commission reported to Parliament on the very problem now confronting people like Barnaby Joyce and Senator Canavan. They reported at para 4.796 (Final Report of the Constitutional Commission, Volume 1, pp. 288-9): 'Even though a person who is granted Australian citizenship may have taken all appropriate steps to relinquish the non-Australian nationality so far as he or she is able, the person may have retained the status of a subject or citizen because of the laws operating in that country. In that case a person may at present be incapable of being chosen or of sitting as a member of Parliament. The person's right to take the fullest part in our representative democracy could be impaired by being ascribed a status by a foreign system of law that does not permit voluntary relinquishment of that status.' The Commission further recommended at para 4:797: 'Any Australian citizen, including a person with dual citizenship, should be able to stand for Parliament. Accordingly, section 44(i) should be deleted.' It's time for our politicians to stop the bleating and point scoring. I suspect that if Lionel Bowen were at the Cabinet table he would plead with the Prime Minister that he lead the people and propose sensible constitutional change NOW. Or just take the wrap for a constitutional provision which you have known for almost three decades to be highly defective, outdated, and problematic.
As a nation, we are stuck on finding our way forward on constitutional recognition of Indigenous Australians. Lionel Bowen would have urged caution and respectful consideration for all due process and consultation if we as citizens were to have any hope of amending our Constitution providing due recognition of Aborigines and Torres Strait Islanders, thereby enhancing the common good of our nation.
In the midst of the complex uncertainty, let's hope that our elected politicians follow the same principles which guided the 2012 expert panel, 'namely that each proposal must:
• contribute to a more unified and reconciled nation;
• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
• be technically and legally sound'.
There is no point in proceeding with a referendum on a question which fails to win the approval of the First Australians. But neither is there any point in proceeding with a referendum which is unlikely to win the approval of the overwhelming majority of the voting public, regardless of when they or their ancestors first arrived in Australia. Given that Indigenous Australians have spoken strongly through their representatives at Uluru in support of a First Nations Voice, it is now for our parliament to determine a timetable and menu for constitutional change with maximum prospects of a 'Yes' vote.
How do we best guarantee the establishment of a First Nations Voice so that it is heard and listened to whenever laws and policies affecting Indigenous heritage and aspirations are affected? Even if change to our Constitution remains some distance in the future, it is important for us all to commit ourselves to designing and implementing a First Nations Voice here and now, deciding whether it be different from the existing National Congress of Australia's First Peoples. And it's important for all our elected politicians to be attentive to those Aboriginal members of parliament who have both political experience and skin in the game, seeking recognition of their mob in the Australian Constitution, while rightly demanding that the outdated 'race' provisions be deleted.
Senator Patrick Dodson is surely right when he says, 'To formulate a successful referendum outcome, especially in the next year, a bipartisan, indeed, cross party consensus will need to be carefully shaped.' That will take something more than the Uluru Statement. Also, Malcolm Turnbull was right when he said on the 50th anniversary of the 1967 referendum: 'No political deal, no cross-party compromise, no leaders' handshake can deliver constitutional change. To do that a constitutionally conservative nation must be persuaded that the proposed amendments respect the fundamental values of the Constitution and will deliver precise changes, clearly understood, that benefit all Australians.' Like all earlier proposals for constitutional change, the Uluru Statement now needs to be assessed by our political leaders and scrutinised by all comers. That's no disrespect to those Indigenous representatives who gathered at Uluru; it's the inevitable politics of democratic constitutional change.
The clearer the blueprint for the First Nations Voice, the more likely that the referendum question formulated with parliament's approval will gain the necessary super-majority of voter support. A referendum question including provision for a First Nations Voice with no prior blueprint has absolutely no prospect of winning the required votes.
It would be a retrograde step to hold a referendum which has very little prospect of success. Some think it best to hold a referendum in the next 12 months regardless of its prospect of success. In my opinion, a lost referendum will do harm to the existential reality of many Indigenous Australians and to the common good of our polity.
Post-Uluru, Aboriginal Australia is seeking a First Nations Voice regardless of what is in the Constitution. And Aboriginal Australia is seeking recognition of that First Nations Voice in the Constitution. If it can't be put in the Constitution in the next twelve months, should we still be seeking to establish the First Nations Voice? I presume the answer is 'yes'. If we can't put it in the Constitution in the next twelve months but if we can get it established and working, is there some greater prospect of getting it in the Constitution down the track than if it were not established? I presume the answer is 'yes'.
Mind you, I still favour what is nowadays described dismissively as symbolic, minimalist change. In this realm, there is no such thing as a small change to the Constitution. Any change is big and significant. If you think that changing the plaques on statues is important, you should regard the removal of 'race' provisions from the Constitution and the addition of formal recognition of past Indigenous history, present Indigenous reality and future Indigenous aspirations as essential.
Bill of Rights
As Attorney General Lionel Bowen dedicated a lot of time and energy to a Bill of Rights. He introduced legislation which was doomed. But he outlined the principles for an Australian Human Rights Bill espousing the preconditions for the common good in contemporary Australia. He told Parliament:
A strategy of compliance with international human rights standards which does not involve legislative definitions of rights must be half-hearted and hollow, if not suspect. Those who argue that our existing legal and social institutions make a Bill of Rights unnecessary, overlook that the common law does not offer clear or wide-ranging statements of an individual's freedoms and liberties; at best, the common law offers remedies in a haphazard and incidental way often only after satisfying complex procedural requirements; the power of the Parliament to confine or withdraw totally common law 'rights'- this may occur unintentionally and even unnoticed by the public at large; the fragility of community attitudes and pressures on which so many of what are popularly regarded as individual freedoms rely. In the light of this, the Government does not believe that it is sufficient or appropriate to rely on administrative measures alone and those aspects of our common law or general culture which recognise rights here and there. Furthermore, the enactment of a Bill of Rights has a vital educative function. It has the capacity to inspire respect for fundamental freedoms and liberties by setting out rights in positive, declaratory form. It is a broadly based declaration drafted in Australia for Australians, in conformity with international standards. Alternatives whether reliance on the common law, particular legislation or administrative mechanisms and programs without more do not spell out and proclaim key rights and concepts in the same way as does the Bill of Rights.
In 2009 when chairing the national human rights consultation for the Rudd government, I was surprised to hear Bob Carr's boast about how best to preserve rights such as the right to religious freedom, belief and conscience. He had joined forces with the Australian Christian Lobby and religious leaders like Peter Jensen, the Anglican Archbishop of Sydney, and George Pell, the Catholic Archbishop, opposing a federal Human Rights Act. Carr was fond of telling audiences that debates about the scope of religious freedom and the intersection between freedom of religion and non-discrimination were best and most easily resolved by the state premier receiving personal representations from the religious leaders. He and they thought that religious freedom might suffer some diminution if the right to freedom of thought, conscience and religion were included in a statutory bill of rights. Eight years on, I daresay the political influence of church leaders meeting behind closed doors with political leaders has subsided.
Two years after the national human rights consultation, the Sydney Archbishops accompanied the Australian Christian Lobby to a meeting with prime minister Julia Gillard. After the meeting, Cardinal Pell reported that the religious leaders had told the prime minister: 'We are very keen to ensure that the right to practise religion in public life continues to be protected in law. It is not ideal that religious freedom is protected by so called "exemptions and exceptions" in anti-discrimination law, almost like reluctant concessions, crumbs from the secularists' table. What is needed is legislation that embodies and recognises these basic religious freedoms as a human right.'
In 2015, the Australian Law Reform Commission concluded a detailed assessment of traditional rights and freedoms — encroachments by commonwealth laws. Though the commission found 'no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia', it did recommend that 'further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions'. In February this year, the parliament's select committee on the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill unanimously reported: 'Overall the evidence supports the need for current protections for religious freedom to be enhanced. This would most appropriately be achieved through the inclusion of "religious belief" in federal anti-discrimination law.' Dean Smith who has drafted his own Marriage Amendment (Definition and Religious Freedoms) Bill 2017 was a member of that committee. His bill does not deal with many of the contested religious freedom issues.
Like Lionel Bowen, I have become convinced that we need a national Human Rights Act in order to enhance the common good in Australia.
Penny Wong at the Lionel Bowen Dinner in May this year said: 'Confidence, courage and conviction — these are the qualities that will continue to inspire us, as Lionel Bowen was inspired. These are the qualities that will allow us to build on the great achievements of the labour movement. These are the qualities that will ensure we maintain the momentum towards the light on the hill.'
Both Johno Johnson and Lionel Bowen would have taken heart from the observation of the theologian David Hollenbach SJ who says, 'Advancing both the common good and the glory of God thus remains a multidimensional task. The glory of God will shine forth in its full splendour when our many relationships with each other and with the earth are brought to fulfilment in union with God and with each other in God. As we move toward that fulfilment, we are called to labor in hope for a fuller achievement of the common good that will make the beauty of God's love and justice more visible in our world.'
In taking on this multi dimensional task as citizens committed to the common good, Lionel Bowen would want us to do it with a glint in the eye and a sense of the comic even in the political turbulence of our age. An old favourite reminiscence of Bowen was his visit to Russia with Gough Whitlam in 1975. Everyone agrees that Lionel was a great mimic of Gough. John Faulkner tells the story thus:
Lionel, who was a great raconteur, reminisced about a trade mission to the Kremlin in 1975 when, along with Gough, he met with Alexei Kosygin and other Soviet leaders. The meeting dragged. With the aid of a translator, apparently Kosygin said 'I'm delighted to have this meeting. This is the first occasion an Australian Prime Minister has visited the Kremlin, despite the fact we have fought alongside each other in two world wars. Now, let's do something big to honour this occasion, like a major trade announcement. The Soviet Union could take a substantial amount of your wheat and your wool, and you, from Australia, could reciprocate with landing rights for Aeroflot, and take minerals and cargo ships from the Soviet Union.' Gough responded, I am told, to a speechless Kosygin and certainly a stunned Lionel Bowen: 'I don't want to talk with you about mundane things like trade. I want to know what happened to the Grand Duchess Anastasia in 1918.' There was no trade announcement.
At Lionel's state funeral in St Mary's Cathedral, former Prime Minister Bob Hawke described Lionel as a man of 'pure crystal'. You here at Marcellin espouse the cerise and blue crystal. We salute Lionel Bowen as one of your finest. Let's remember that hand shake of decency, that smile of wily knowing political achievement, and that glint in the eye of the one who knows and hopes that ultimately the common good can triumph over self interest and selfish individualism.
Frank Brennan SJ is the CEO of Catholic Social Services Australia.