Approaching this year’s fiftieth anniversary of the Whitlam government’s election in December 1972, Griffith Review has curated a series of intergenerational conversations in collaboration with the Whitlam Institute about the ongoing legacies of that government’s period in office and the links between that then and this now.
Building out from the idea of the Antarctic Treaty System (ATS) as a model for international collaboration and accommodation, the Hon. Michael Kirby AC CMG and Dr Benjamin Huf joined to explore the broadest space of international relations and the domestic effect to which Whitlam sought to put many international conventions and laws. They opened their conversation with a discussion about Whitlam himself as an internationalist and the scope and scale of his government’s achievements – 133 international treaties entered into force during that government’s three years in office.
Whitlam expected that Antarctica would ultimately be exploited, exploring – in A Pacific Community (1981) – some of the ‘further problems that pervade the exploitation of both living and non-living resources in the Antarctic…[which] target on the question of who is to benefit from these vast resources’. The Madrid Protocol, which indefinitely prohibits mining on the continent, came into effect a decade later in 1991 under the auspices of Australia’s advocacy and leadership.
MICHAEL KIRBY: Gough Whitlam had a number of influences from his earliest life. His father, Fred Whitlam, took a big part in the development of the Australian connections with international affairs as a federal public servant. Also very important was Gough’s exposure to international issues in his war service – he volunteered for and served in the RAAF, defending our shores against a real threat to Australia’s continued national existence. His father had also been very busy in the negotiations for Australia to join, as a foundation member, the United Nations – and this left a big mark on Gough.
When I look back on it, we had been a sleeping country – well, not entirely. The Liberal-Country party government had done some good things, like joining in the negotiations on the International Covenant on Civil and Political Rights. And it had set up a number of Australian embassies. But on the whole, Australians were not very sympathetic to the idea of internationalism; they were rather local in their outlook. In 1962, as a young university student, I was sent by the National Union of Students to Nigeria. And I quickly perceived the attitude of most overseas people to Australia – it wasn’t one of love and admiration, looking at our stable institutions and our wonderful history, plus the development of all the infrastructure of the modern state. It was extremely critical of two aspects of our polity – the way we had treated First Nations peoples, and the way we had sided with countries like South Africa on the international stage, and persisted with the White Australia policy, a foundational principle of the Australian Commonwealth.
These two elements were the subject of usually polite but very strong criticism. That came as a bit of a shock to me; it wouldn’t have shocked Gough. He would have been increasingly aware of how we were something of a pariah on the international stage – and that this was a rather dangerous place for us to be in. The things I saw in 1962, he had perceived earlier.
When he entered parliament [in 1952], he asked…well, I don’t want to say a thousand…questions. Certainly a huge number. He must have driven ministers mad with questions about international law and international relations. This really helped to put him on the map as an internationalist – a very peculiar stance at that time. That international position was revived by his amazing record of achievement during his short period in office, 1972–75. That record has led on to our position today. There have been differences between political parties, but Australia never went back into hibernation. That is a very important legacy for the citizens of Australia.
Gough was a change agent. He arrived…I won’t say like Zeus, but he would have made some allusion to ancient Greek or ancient philosophy. But he arrived and, from the very first, when he and Lance Barnard were the governmental duumvirate, things really started to change in a whirlwind.
BENJAMIN HUF: One of the stories we tell about the history of Australian foreign policy over the twentieth century is about a fear of abandonment – by Britain, by the US. But I think perhaps, as you outlined, Michael, Whitlam’s beliefs stemmed from a different set of resources. To pick up on this notion of Australia as a pariah state: think about that 1972 slogan, It’s Time. That’s instructive in so many ways. The world was changing dramatically by the 1970s and there was a sense that Australia had to respond to that. The Vietnam War was the immediate context, but so was decolonisation and the breakdown of empires – including the British Empire. And there was the onset of stagflation that seemed to mark the exhaustion of the post-World War II Bretton Woods liberal Keynesian order that had maintained some of those old imperial hierarchies. The assertion of a right to self-determination by decolonising states was a key theme: I think that appealed to Whitlam in many ways. Decolonising states were proposing an alternative kind of internationalism to both old imperialisms and Bretton Woods that they expressed in projects such as the New International Economic Order proposed at the UN in 1974 and the broader Non-Aligned Movement. This internationalism combined interstate co-operation with national self-determination. I think Whitlam saw elements of this as a kind of framework that could position a new Australia.
In relation to Britain, that was an unsettling force through the 1960s and even earlier – Britain’s pivot towards Europe and joining the Common Market, as the historian Stuart Ward puts it, posed a real existential threat for Australia. What did that mean for primary producers all over the country? It was a danger for the cultural fabric too: if Australia was not British, what was it? Whether this existential angst informed Whitlam or not, he had a sense of an independent Australia; I think he embraced abandonment. He embraced it both in terms of internationalism and cultivation of a new nationalism as well. He wasn’t anti-British, but kind of pro-Australian – that was the line he would use.
Michael, in your 2010 essay ‘Whitlam as Internationalist’, you talk about his time in public office more broadly, and his government’s ascent to power overlapping with a time when princes and empires had been replaced ‘by a world of trade and shared commitments, however imperfectly these commitments were yet fulfilled’ – that’s an interesting phrase. I would put it a little bit differently: trade has always been associated with empires. And the question that emerged in the twentieth century with the disintegration of empires was about reorganising trade. Should we situate international trade under a great set of international laws, giving nation-states, especially new decolonised nations, greater control over their resources? Or, after Bretton Woods, was it time for a kind of globalist free-market setting? That was certainly a huge part of what the Whitlam government was trying to grapple with. I think his internationalism was partly about a response to this question.
One way of thinking about this 1970s moment is that internationalism and nationalism, co-operation and self-determination, went hand in hand – and that’s always fraught with fragilities and tensions and dangers as much as opportunities. The Whitlam government was trying to reset Australia on those terms. On the one hand, there’s a huge explosion of international treaties and agreements and conventions. On the flipside, there’s this ambition for economic self-sufficiency – like Rex Connor’s move to nationalise mining and minerals and the oil-production sector after discovering that, through the 1950s and ’60s, these had come under increasing foreign control. That national conversation around coal, and its importance to Australian prosperity, sovereignty and identity, is a legacy that we have today.
MK: I worked with Gough when he was ambassador to UNESCO – something that Malcolm Fraser, to his credit, supported. Gough went to Paris and worked in UNESCO, and that was a way he could still act out many of the things he had tried to do in government.
I don’t think he was grabbed so much by trade and by economics – though a lot of the statutes and ministerial visits and so on were connected with that. What grabbed him is basically what grabs me because we’re both lawyers. And it’s the notion that you can express fundamental human rights. And you can use that as a stick when democracies do not observe them. The people own the rights. They don’t depend on government to give them. This becomes something the people can use when governments go astray. You can see a very good example – in the lack of a benign empire – in Mr Putin’s actions in 2022 in respect of Ukraine. He doesn’t really believe in the right of self-determination. He’s invaded the country. The right of self-determination of the Ukrainian people and the people of Donbas is completely irrelevant to the notion of an empire which is respected and feared. That’s a very nineteenth-century notion.
In his time, Gough knew that a new notion had to be built on the basic rights of peoples to self-determination and also the basic rights of individuals to human rights. And that’s what grabbed him. The work I did – thanks to him – through UNESCO developed proposals to deal with people in international law. And that’s a very interesting and currently very important topic. Are the people of Donbas a people, or are they Russians or Ukrainians? This was a way of marrying the international law of human rights in which Whitlam was profoundly interested in terms of the world of nation-states that constitute the United Nations. And that hasn’t been fully resolved yet.
If you look at the things he did in international activities, many of them – probably most of them – were to do with universal human rights. He did everything he could – as a politician and then in UNESCO – to advance the normalcy of having a universal statement of principle and universal action. Essentially, he understood that after Hiroshima and Nagasaki, unless we can control power and force, the long-term survival of the species is seriously in doubt.
It’s true that he did not confront the existential threat of climate change to the same degree that we do. But he addressed the existential threat of nuclear weapons. And one of the first things he did was to sign the Nuclear Non-Proliferation Treaty and take steps to make Australia a real player in that area. That area had been neglected – but not by Whitlam. He was a person who kept his eye on the big themes. We now have the environmental theme – but we had then the nuclear weapons theme. And we mustn’t forget that issue. We’re being reminded of it, too, in the Ukrainian situation.
BH: There are, I think, real echoes between Whitlam’s government and the present. Whitlam envisioned a transformative environmentalism. We tell a pretty familiar story now about his interest in conservation, which really culminated in signing the World Heritage Convention. The ATS had come into effect earlier, under the Menzies government – as Menzies himself said, it was not about the demilitarisation of Antarctica because it hadn’t been militarised; it was about non-militarisation and a very early understanding of peaceful activity in terms of steps taken to prevent nuclear testing there. After Whitlam, this feeds into the Madrid Protocol.
Whitlam’s own curiosity in some of these environmental areas stemmed from the damming movements in Tasmania in the 1960s – his interest built up as a response to the activist program in Australia. He went on to legislate for national parks, protecting the Great Barrier Reef – this clearly has a major legacy for us today. There was also the Ramsar Convention on Wetlands of International Importance, the first modern treaty between nations aimed at conserving natural resources.
But there is also a parallel story going on in 1972: the UN Conference on Human Environment. This occurred in June 1972, six months before the Whitlam government was elected.
That conference in Stockholm was concerned with questions which we still have today – whether it’s possible to achieve economic development with environmental protection. Can we have such a thing as environmental economic growth, continuously improving living standards in a world with finite natural resources? That was a question being asked in 1972, as it is today. But it is a question that looks very different in different parts of the world. In the Third World, in a world of postcolonial self-determination, countries which haven’t gone through two centuries of extreme and extraordinary economic growth think, well, this is not really a question for us to be answering. It’s a problem for the developed world, for countries like Australia; we should be able to develop in the ways that they have.
That’s a conundrum – and one we’re still dealing with today. That’s the conundrum of internationalism: how do you get co-operation among more than 200 self-determining states?
But I think there are lessons from that period. I’m interested in how some of those ideas – what internationalists at the time called ‘eco-development’ and ‘human settlements’, which had a different emphasis from contemporary ideas about market-based ‘sustainable development’ – informed Whitlam’s policies, especially around urban development, regional development, cities. What we might now call ‘sustainable cities’ was one area in which some of these ideas really began to play out in Whitlam’s programs. But it intersects too with Indigenous self-determination and recognising First Nations peoples as custodians of lands. That’s another way of enacting a different development environment.
This year is the anniversary of that Stockholm conference and that’s a kind of marker: how far have we really come? Is there a ‘limit to growth’? Should we be exploring something like a green GDP – these other significant metrics that are now interesting to progressive economists? The questions being asked in 1972 have come full circle. It’s interesting that we haven’t heard as much of them in Australia – which raises questions about our commitment to some of these issues. And that goes to your point, Michael, about legacies, our continuing commitment to internationalism. Whitlam’s government set up a framework for how we interact with the world. Perhaps we haven’t recoiled into isolationism, but there is a sense in which the emphasis and politics have changed. Our commitment to refugees is the other significant arena in which that might be considered: there’s a story to be told as to why, despite becoming more outward and globally orientated – at least in appearances – Australia has receded from some of these commitments in action. Perhaps it had to do with the triumph of globalism over internationalism in Australia from the 1980s. But I suspect it also has to do with the fact that, especially over the past twenty years, it has been more expedient for politicians to push the nationalist rather than internationalist side of the equation.
MK: It’s important to understand that Whitlam’s relationship with internationalism was partly not self-interested. He was ever the politician. One of the most frustrating challenges he faced was a constitution which, rather obdurately, the people of Australia have repeatedly declined to amend.
His father had taken part in the Curtin government’s fourteen powers referendum, which was proposed in August 1944 to give the federal parliament power over various subjects in the postwar period. But Whitlam’s notion of Australia was a country with a constitution that seemed very unmoving. He wanted to look around for another way to do things. That emerged through use of the external affairs power in the Constitution [sec 51(xxix)] – plus subscription to, and ratification of, treaties to give power to the Parliament of Australia and the government to do things which were certainly not in the minds of the founders of Federation. To quote Justice Alito in the contemporary US case on abortion, a lot of subjects weren’t in the minds of the founders.
Ours is a constitution designed to last for centuries. And so it has proved – like the American Constitution – rather resistant to change. It’s therefore important to see that even when he was Prime Minister – before he went to UNESCO – Whitlam was looking for international treaties to become a potential platform on which this government could enact laws on matters which were not regarded as within the powers given to the federal parliament up to that time. These included issues such as Aboriginal rights and non-discrimination – the convention against all forms of racial discrimination, which the Whitlam government ratified, became a very important foundation for overcoming the Queensland Government’s discriminatory laws. An act was enacted by Whitlam’s government and parliament to forbid racial discrimination. That became an extremely important step in the path towards Aboriginal equality and an end to discrimination against them.
Whitlam was strategic in that sense – and also around global health, international commerce, employment, the death penalty and handicapped persons, international justice. Australia went to the international court to forbid France from dropping and detonating its nuclear weapons next door to us: I remember at the time so many people said, Oh, this is embarrassing! Why are we going to the world court? It will never uphold the claim. But Whitlam and his Attorney-General, Lionel Murphy, were much more confident. And that was a moment in history where the confidence was justified. France stopped nuclear tests in the Pacific.
So many matters of Whitlam’s government found their source for constitutionality in international law, which meant that young constitutional law scholars had to suddenly think of an entirely new legal world. There was a real question as to whether the High Court of Australia would uphold this – it did so by a whisker. Sir Ninian Stephen, Justice Stephen, also later a Governor-General, gave the casting vote in the Koowarta case to uphold the power to enact anti-discrimination laws relevant to Aboriginals. And that became a step in the direction that ultimately led to land rights which Whitlam had embraced. More particularly, it became part of the Volksgeist on which the Mabo decision was based.
Some people paint Whitlam as a naive person who tried to do too much too soon. He responded to that accusation most angrily – and in retrospect, he only had a very short period in government. But he was first and foremost an internationalist and a politician. We can’t forget that he had the soiled hands of politicians – not in any way corrupt – he would be horrified by reports of corruption in high office. He was a person who had to work strategically to find a source of constitutional power. And that’s not always an easy thing in the Australian Constitution: it’s the least amended constitution in the world although it is one of the oldest.
To find power, he had the support of Lionel Murphy who, both as a politician and later on [in] the High Court of Australia, was a strong advocate of expanding the importance of international law on domestic decision-making. Australians are rather suspicious and, if I can say so, a little bit superior-thinking. They think, we don’t really need these foreign things, general rights, a human rights charter – Whitlam didn’t agree with that at all.
There’s a common theme here. You find politicians with grubby hands: a little bit idealistic; a little bit willing to go the extra mile to do things in a different way, and willing to think in a different way. Doing that makes a very important contribution from the point of view of Australia and its relationship with the international community.
Australia took a very active part in the international community when the UN was created in 1945; we were an internationalist nation. And that was a good thing, in my opinion. If we can’t embrace that space, we will never solve climate change; we’ll never solve nuclear weapons, and we’ll never solve the problem, also existential, of the next pandemic. As you say, Ben, the world can’t afford to go back to the nation-state and live in the nineteenth century. Our world is now much more dangerous.
BH: I think the thing to name here as well, which you suggested, Michael, is the flipside of Australia’s internationalism: Whitlam is trying to do all this in a federation of states. That was the clever thing with the external-affairs mechanism that he used to get around states like Queensland and Western Australia, who were quite resistant to the racial discrimination convention. That’s another layer of complexity to this story. You get a sense sometimes that Whitlam was really quite frustrated with the Federation – he’d like to brush it aside if he could.
One of the stories we tell about twentieth-century federalism in Australia is the gradual centralisation of powers from the states towards Canberra. Whitlam was something of a centrist. The failure of John Curtin’s 1944 referendum stuck with him for years. He held two referendums himself to try to centralise the Commonwealth’s capacities. So talking about legacies, it’s interesting in terms of the two years we’ve just been through – we see Western Australia and Queensland, again, leveraging federalism in response to dealing with a pandemic. We can see this fracturing in terms of climate change, too. Perhaps we’ve drifted somewhere from what Whitlam looked to achieve with federalism as well, which is something we don’t talk about so much in terms of his legacy.
MK: Whitlam was always looking at his program. I don’t think he thought my article on him as an internationalist was all that good – he believed he’d done much more. But it was already a very long essay. He was just trying to keep up with the world. He must have been a devil to work with in the federal bureaucracy that had long been sleepwalking.
I remember those times: there was an element of excitement. People who’d been the gnomes of Canberra and the federal bureaucracy, resistant to a lot of change and conscious of the Federation, they suddenly became excited that things could be done that most Australians knew had to be done. And if Australia was to face the world, the most important challenge was somehow trying to adjust to Indigenous peoples and their rights which had been refused – and neglected – and to deal with the post-White Australia period more generally. In a sense, if Whitlam had not come along, we would have needed to invent him. Just imagine what our country would have been like if we had not had that short interregnum.
In fairness, Fraser never really tried to go back to the bad old days. Harold Holt had taken the first step to demolish White Australia – Whitlam finished it off. His government removed all racist legislation. You don’t so easily remove the prejudices and attitudes in people’s hearts. And we still haven’t resolved the great injustices to our First Nations peoples. But Holt and Whitlam led the way.
BH: One other thing I’ve been pondering in terms of adjusting attitudes: when we remember the famous images of Whitlam with Vincent Lingiari, and in the context of talking about Australia as an international citizen, we are reminded the Australian continent has been for millennia a multinational or international entity. There was a recognition in the land rights movement and land rights legislation that this is a continent of multiple sovereignties. Talking about legacies, that’s something I think many Australian leaders are still trying to get their head around – and many legal scholars too. How do we exist in or govern a world of multiple sovereignties on this continent? How do we recognise that Australia is a kind of international or multinational polity? We saw how affronted people like Malcolm Turnbull, a republican, were [by] the Voice to Parliament.
That’s another dimension to Whitlam – he wasn’t just looking out to the world from Canberra; he was looking in as well. The maps we now have from AIATSIS [Australian Institute of Aboriginal and Torres Strait Islander Studies] show Australia as a highly diverse, multinational – international – continent.
MK: After 1975, our country has never been entirely the same as it was before Whitlam. I think he was proud of that achievement, and rightly so. To borrow from Churchill: he was proud. And he had a lot to be proud of.
He was a change agent – everybody in all the political parties would acknowledge that. What’s unusual is that our very conservative constitution and history and background and self-satisfaction and our uncritical view of our history and our part in the world all combined in the mind of this man, son of an important and well-paid federal public servant who himself had been very much involved in the creation of the UN and reaching out… This all goes to show that history includes many chance elements, unpredicted elements, the sudden emergence of a person, like Whitlam, who was so unusual – spouting allusions to ancient Greek poetry… He was a very unusual and very superior person.
Yet he was a democrat. He was a person of his age and time. But he was a very great man. I’m proud that I worked with him in UNESCO and in other places. I got to know him – partly. Not closely, because he was quite a reserved person. A most formidable human being and formidable intellect – and for a lawyer, not so conservative, as most lawyers are.
The times were different. We now live in a world where global human rights and idealism, the idealism of UN Charter, of the Universal Declaration of Human Rights, the great treaties; these new developments have not disappeared. Of course, the idealism is not quite as strong as it was when I was living through the 1940s to the 1970s. I thought it would go on forever. Well, it’s been modified – which is the nature of all forms of life. It’s adaptation, the evolution of the species. We’re just a tiny part of it.
What we can do is to look back on the time of Whitlam for encouragement – especially young lawyers and young citizens. Seize the moment: carpe diem. He sure seized the moment. That’s why learning from him in my own life – I think all of us can learn to be more courageous. Where there is injustice, we should seek to right the wrongs. That is what Whitlam demonstrated. That we could do a lot as a democratic nation.
BH: I don’t want to sound too glib, but what Whitlam brought was vision, something we hadn’t seen for a long time – a moral courage to enact that vision, and an understanding of the capacity of the state apparatus, and what that can do. We’ve seen that in the pandemic: with a bit of willpower, political will, a bit of courage, the state can do enormous things very quickly. That’s the unfortunate lesson in a way – we do come back to the frailties of human beings. This is one of the oldest questions in political theory: what’s the determining factor, the legal and political institutions that we build, or the personalities and the frail humans who control them? It’s that tension that we face again. We can build all kinds of internationalist or supranational or global institutions to confront our planetary problems. But if we don’t have the right leaders to drive this, people like a Whitlam, they can be rather toothless.
We’re talking at the time of the 2022 election; we’re talking about Whitlam as a democrat. Some might say, on one side of politics, the role of government is to step back and let people live the lives they want. I guess in a democracy it’s also about enabling people to live full and flourishing lives. That’s the democratic vision, for everyone to live that. And that requires leadership and vision and looking back – as you said, Michael, Whitlam’s was a different time. It was incredible, exciting and we did have a sense of hope and possibility. We have a lot of possibilities in front of us again.
This is the third conversation in a collaborative series designed and curated by Griffith Review with support from the Whitlam Institute.
Michael Kirby, ‘Whitlam as Internationalist: A Centenary Reflection’, Melbourne University Law Review (2016).
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