HUMAN RIGHTS – Julian Burnside
(a paper presented to SBS staff on 10 December 2001)
The rights of individuals are necessarily in tension with the corresponding rights of other individuals, on the one hand, and on the other hand with the powers of the State. Maintaining these forces in equilibrium is the function of the legal system and the processes of democracy.
Individual rights are constrained in two ways: first by the countervailing rights of others. Your right to swing your fist stops just short of my nose: my right to physical security constrains your right to free movement. My right to drive a car is constrained by your right to drive on the same road, or to walk on the footpath beside the road.
More fundamentally, my right to drive is constrained by laws which require me to hold a licence and to observe various pragmatic rules which bear more or less closely on the safety of the public. Those rule are imposed by all members of society through the processes of democracy, as an exercise of collective self-restraint. Government power diminishes indivivdual rights for the collective good.
Government power and individual rights are necessarily in tension. A central feature of any constitutional democracy is that the Government acquires power and the people agree to limit their freedoms by being subject to that power. The will of the majority is imposed on all through the mechanism of Government power.
Every grant of power to central Government reduces, to some extent, the freedom of the individual. My right to accumulate wealth is constrained by an obligation to pay tax. The Government has no natural right to collect tax, but is given authority to do so by the democratic process. Collectively, we restrict our rights by conferring authority on Government.
In a healthy democracy, the balance of central authority and individual freedoms is carefully maintained. The threat of electoral punishment keeps Governments more or less sensitive to the electorate’s collective view about the appropriate limits of its authority.
Each individual in a society has, or at least may hope to have, rights which are common to all members of that society. Self-evidently, not all societies agree on the rights to be enjoyed by their members. The differences between legal systems reflect the different rights acknowledged in various countries. At a national level, what matters is that each participant in a society should enjoy the same rights. That aspiration is not always attained. In Australia, for example, Aborigines were not allowed to vote until 1967. Similarly, discrimination on the basis of race, sex, religion &c involves a denial of the rights of the victims of discrimination. Until those forms of discrimination were made unlawful during the 1980s and 1990s, they involved an unequal distribution of legal rights.
Human rights engage the same mode of thinking, but at a different level. The group of rights recognised as human rights do not depend on, or arise from, membership of a particular society. They arise from the fact of being human. We acknowledge the existence of other animals, and the law protects them to some extent. But we recognise a difference of kind between human beings on the one hand and the rest of the material world. The quality of humanness carries with it a set of considerations which lately have been formulated as rights. To give some simple examples, the laws of all civilized nations recognise a qualitiative difference between killing a human and killing an animal; they recognise a qualitiative difference between stealing property, however valuable, and kidnapping a person.
It was not always so. Until slavery was abolished progressively during the 19th century, slaves were not regarded as human beings in the eyes of the law. The notorious decision of the US Supreme Court in the Dred Scott case amply illustrates this. In that case, decided in 1857, Chief Justice Taney said:
“The question before us is whether (African American slaves) compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for … citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority …
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect … (they were) bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it.” (emphasis added)
The ideas expressed, and the intensity of the language used, strike the ear as shocking, especially in light of the introductory words of the Declaration of Independence (1776):
” … We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Taney J dealt with those words in this way:
“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included … ”
An early case in the English courts is equally shocking to modern ears. In 1782 a slave vessel was carrying about 300 slaves from Guinea to Jamaica. They ran into trouble, and their arrival in port was so delayed that the ship ran short of food and water. It appeared that all on board might die of thirst. 150 slaves were thrown overboard, so that the remaining rations might go further. These facts led to a case in the English courts: but it was not a trial for murder, it was an insurance claim for the value of the slaves who had been thrown into the sea to drown.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights was adopted in 1948. Its preamble identifies clearly the philosophical source of the document:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people …
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
The origin of human rights is the mere fact of being human. The necessary content of human rights must correspond to those things without which our humanity is compromised or denied. Human rights are those rights which are not regarded as peculiar to a place or population, but which arise as a necessary feature of being human. Their content is ultimately to be found by asking: What freedoms do we regard as the irreducible minimum for a human being?
The Universal Declaration includes the following Articles:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. …
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Authority v human rights
The balance between authority and individual rights is compromised in three main circumstances:
1. When effective opposition is absent, or so compliant, or so weak as to enable Government to ignore electoral retribution. This is the position in totalitarian regimes. It was briefly the position in Victoria a few years ago. It is the position in Federal parliament as at October 2001;
2. In times of war or civil emergency, when the people cede to Government greater than usual powers in order to meet more effectively a collective threat;
3. When the freedoms in issue are those of the politically irrelevant: the disenfranchised or the voiceless.
It is in relation to the third group that abuses of human rights are most common. The voiceless minorities are by definition marginal and powerless. They do not have the resources needed for the essentials of a civilized life, let alone the resources to fight to vindicate their rights. As a result, their rights are reduced or extinguished, and those responsible are answerable to no-one but an electorate which neither knows nor cares.
Unfortunately, violations of human rights are not uncommon, even in Australia. For example, until 1967 indigenous Australians were not entitled to vote. They had no voice in the Australian democratic process. They were treated in ways which would not have been tolerated if all citizens had been treated likewise.
Similarly, it was not until the Mabo decision in 1992 that the human rights implications in the terra nullius doctrine were recognised and the doctrine was abolished. Although Mabo was apparently about land, in a more fundamental way it was about recognising the full humanity of the aborigines. Earlier cases had accepted as a fact that the connection between aborigines and the land was much more profound than the western concept of ownership: rather, the people and the land were connected in a manner more analogous to kinship than ownership. For aborigines, land was their parent; for us it was an article of commerce. Until the mid-eighteenth century, slaves had been an seen as an article of commerce; until the late 20th century, aboriginal land had been seen as an article of commerce. Mabo recognised Aboriginal beliefs in a way which, for the first time, acknowledged their full humanity.
Justice and Human Rights
By recognizing the depths from which human rights spring, we can see that justice is not possible where human rights are denied. But as the Mabo decision shows, recognizing a denial of human rights is not always easy. Putting to one side the obvious cases – slavery, torture, arbitrary imprisonment – recognising a denial of human rights calls on us to see the world through the eyes of the other person; to appreciate the importance to that person of the right they seek to assert. For example, it is easy to acknowledge freedom of worship as a fundamental human right; it is less easy to see that an adherent of a particular religion may find it abhorrent to comply with a dress-code which is otherwise unexceptionable.
Human rights and asylum seekers
Those who seek asylum in Australia have no vote and no voice. Governments are able to exercise much greater powers over them because they are silent and (for the most part) invisible.
The Australian public accepts, virtually without a murmur, the fact that asylum seekers are detained compulsorily while their claims for asylum are assessed. This policy, accepted by both major parties, would not be tolerated if it applied to white middle-class voters. It applies, in practice, to penniless non-voters from Asia and the Middle East. The Government justifies it as an exercise of national authority. We accept it without questioning its moral foundation. In fact, it involves a wholesale abuse of the human rights of the asylum seekers.
There are more than 4000 people held in immigration detention facilities around the country. A disproportionate number are held in the most remote locations. Woomera is about 6 hours drive from Adelaide, in the middle of the desert. Port Hedland is north of Perth: about an 18 hour drive. Curtin is equally remote. These God-forsaken places, in the least hospitable parts of Australia, hold over 80% of asylum seekers.
In a Departmental briefing paper Mr Ruddock said:
Australia’s Migration Act 1958 requires that all non-Australians who are unlawfully in Australia must be detained and that, unless they are granted permission to remain in Australia, they must be removed from Australia as soon as practicable.
This practice is consistent with the fundamental legal principle, accepted in Australian and international law, that in terms of national sovereignty, the State determines which non-citizens are admitted or permitted to remain and the conditions under which they may be removed.
A small truth conceals a great lie. It is true that sovereign nations can decide who may enter their territory. But Mr Ruddock conveniently overlooks human rights and international treaties bearing on the treatment of refugees.
In May 2000, the Human Rights and Equal Opportunity Commission reported to the government that its detention regime was in breach of international law. The government has ignored the report.
In 2001 the Australian branch of Amnesty International reported as follows:
International law demands that detention of asylum-seekers normally be avoided, and resorted to only when necessary, and only for specified reasons:
· To verify identity
· To determine elements of a claim
· To deal with cases where documents have been destroyed
· To protect national security or public order
International law attempts to ensure that detention in any given state is not arbitrary, unlawful and is open to judicial review. Australia, however, mandatorily and automatically detains all asylum-seekers who enter the country without proper documentation.
Amnesty International is concerned that asylum-seekers – and often refugees – should not be detained for longer than necessary under international law. In Australia, however, many remain in detention for months and sometimes years, including women and children and those suffering torture and trauma. Refugees in detention also find it difficult to exercise their right to legal representation – a right which even arrested criminals are allowed.
A very recent report of the central body of Amnesty International reported on Australia in the following terms:
(The Australian) Human Rights and Equal Opportunity Commission investigated allegations that guards ill-treated immigrant detainees and neglected medical care. In September the UN Working Group on Arbitrary Detention had to cancel plans to investigate the immigration detention regime, after the government failed to allow it to visit.
The government claims to exercise its powers in accordance with its international obligations. That is a lie. Australia’s systematic detention of refugees directly breaches our international obligations. Its hostile response to such groups as the Tampa refugees is a betrayal of our commitment to the human dignity of refugees.
The government, armed with the largest powers imaginable, turned the full force of those powers on the weakest and most vulnerable people on earth. It did so to placate the relaxed and comfortable, the complacent, xenophobic Australian electorate. It did so in order to take a cheap electoral advantage. Such shabby conduct deserves our contempt.
Refugees’ Convention and human rights
The preamble to the Refugees Convention includes the following statements of principle and aspiration:
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,
Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,
Here is a portion of an affidavit of an Iraqi woman in a detention centre. The names are anglicised for security and, incidentally, to remind you that these events happened in Australia:
The adults were handcuffed. I asked to have my handcuffs removed so I could hold Robin, my 2-year old son. The guard did so but two other officers came up. One of he officers dragged me by my hair and pushed me against the wall. They searched my body in a humiliating way after pushing Robin into the corner. … For around 32 hours the children had no food. We were held in a small room with no toilet or water facilities whatsoever. I repeatedly asked to take my child to the toilet but often had to wait for up to an hour before being escorted to the toilet. …
Here is portion of an affidavit sworn by an Iraqi woman. Again, the names are anglicised for their security:
1. On a day in August 2000, on or round 5:00 am about 20-25 Centre Emergency Response Team (CERT) staff broke into our rooms and handcuffed me, my son Andrew and my husband James. They dragged Elizabeth off her bed by her shirt, and together with Alice we were driven to Juliet compound.
- I was put in a cell with Elizabeth and Alice. Later, when we were released after 15 days in Juliet Compound, my husband told me that James had been put in a cell with him, but that later he had been in a solitary confinement cell. Billy, our 5 year old son was also put in a solitary confinement cell.
- During that 15 days in Juliet Compound I begged the guards to open the door so the children could use the toilet which was located outside the cell. For the first two days this request was refused/ignored. The children had to use a plastic bag which I found in the cell as a toilet ….
- My son, Andrew, later described to me his experience in detention. He said words to the effect of: “I needed to go to the toilet and called the guards. … four guards came rushing down the corridor. … They pushed me back and held me against the wall. One guard held my legs, the other held my hands behind my back. A third guard used his arm to encircle my neck and hold me tightly. I thought I would choke. The fourth guard swore at me. When I answered back, the officer punched me in the face.
- In November 2000, our family lodged a complaint against the ACM to the Federal Police. The incident was registered but to date there has been no response conveyed to us. … Andrew later tried to hang himself.
Conditions in detention
The DIMA website contains a document which sets out the standards which must be maintained at detention centres by Australian Correctional Services, a commercial operation, which is paid to run them. Compare the image with the reality:
(The operating standards) ensure that the needs of detainees are met in a culturally appropriate way, while at the same time providing safe and secure detention. They focus on areas such as dignity, social interaction, safety, security, staff training, health, accommodation, food, religion, education, and individual care needs.
Although the government pretends that its treatment of asylum seekers in detention centres is humane and culturally appropriate, the record suggests otherwise. Here is an eye-witness account of Woomera from an Adelaide solicitor:
· two working toilets for 700 people, both leaking, sand on the floor to “mop up” the leaking effluent
· four working showers, for 700 people, hot water only available after midnight
· not allowed to take food from dining room for children or sick adults
· no coffee/tea/food between meals, only water
· no air conditioning, fly screens, or heating. Temperatures during the day reach 45 degrees, at night it falls below freezing; there are millions of flies
· inmates have to queue for meals, medical attention, phones (two for 1300 people) for up to two hours. Persons seeking medical attention (including painkillers for broken leg, raging fever, tonsillitis, etc) each have to queue in the open for up to 1 1/2 hours to obtain their medication in front of the nurse.
· nails may only be cut by the nurse, who will do ONE person per day
· women must queue each day for their ration of tampons/disposable nappies
· there is no baby food or formula, one woman with a six month old baby who was struggling to maintain breast feeding was advised to feed the baby powdered chicken stock mixed with water (no sterile equipement of course)
· food is beyond description; many will not eat it
Refugees spend months, and in many cases years in these conditions. They rarely receive visits, because they are held so far away from major cities. The treatment is degrading, humiliating and mindless. It can have no other purpose than to break their spirits. It succeeds in this often enough, as is shown by those who are driven to suicide. Incidentally, as a final humiliation, when a claim for asylum is finally accepted and the refugee is released into the community, they are forbidden to work, but are presented with a bill for their accomodation at the rate of $147-50 per day. This typically amounts to something between $50,000 and $100,000. It is difficult to imagine the misery this must cause.
All Australians, not just those concerned with refugee issues, should condemn the government’s systematic denial of the human rights of asylum seekers. It is ignoring humanitarian imperatives; ignoring international law; ignoring international scorn; and scarring a generation of genuine refugees whose claims to stay here are ultimately accepted.
The fact of compulsory detention, coupled with the conditions experienced in detention, involves wholesale breaches of human rights. Australians tolerate it because they are sheltered from the facts and they are induced to see refugees as criminals who get here illegally. The human dimension of the problem is kept well hidden. The tragedy is that those who suffer it are politically irrelevant, and those who have the power to change it either do not know or do not care.
 Gregson v Gilbert (1783)) 3 Doug KB 232