Magna Carta-myth and reality

Most Australians would, if asked, probably identify Magna Carta as the foundation stone of our legal system.  They would have a vague sense that Magna Carta was the start of it in England and that, in 1788, the system built on Magna Carta was transplanted into Australia.

Magna Carta is mostly a myth, but provides a great example of an enduring truth: that in political matters, mythology is far more important than facts.

Popular history tells us that Magna Carta was sealed on the meadow at Runnymede on 15 June, 1215.  So, on 15 June 2015, we commemorated 800 years since it was sealed.

In fact, we acknowledged the wrong document and the wrong day.

The document that was sealed on 15 June 1215 was the Articles of the Barons.  The document we think of as Magna Carta was based on the Articles of the Barons and was prepared and engrossed a few days later, some say on 19 June 1215.

But in any event, England switched from the Julian calendar to the Gregorian calendar in 1752, so as to bring the calendar back into synchronisation with the real world.  When that switch happened, eleven days simply disappeared.  So while it is true that the Articles of the Barons, later called Magna Carta, was signed on 15 June 1215, that day was 800 years minus 11 days before 15 June 2015.  The date which is exactly 800 years after the signing of the Articles of the barons was actually 26 June this year.

But this does not matter: it is the symbolism of the thing that really counts, and I doubt that anyone thought about Magna Carta on 26 June 2015.

Winston Churchill wrote about the signing of Magna Carta in volume 1 of his great History of the English Speaking Peoples:

“On a Monday morning in June, between Staines and Windsor, the barons and Churchmen began to collect on the great meadow at Runnymede.  An uneasy hush fell on them from time to time.  Many had failed to keep their tryst; and the bold few who had come knew that the King would never forgive this humiliation.  He would hunt them down when he could, and the laymen at least were staking their lives in the cause they served.  They had arranged a little throne for the King and a tent.  The handful of resolute men had drawn up, it seems, a short document on parchment.  Their retainers and the groups and squadrons of horsemen in sullen steel kept at some distance and well in the background.  For was not armed rebellion against the Crown the supreme feudal crime? Then events followed rapidly.  A small cavalcade appeared from the direction of Windsor.  Gradually men made out the faces of the King, the Papal Legate, the Archbishop of Canterbury, and several bishops.  They dismounted without ceremony.  Someone, probably the Archbishop, stated briefly the terms that were suggested.  The King declared at once that he agreed.  He said the details should be arranged immediately in his chancery.  The original “Articles of the Barons” on which Magna Carta is based exist to-day in the British Museum.  They were sealed in a quiet, short scene, which has become one of the most famous in our history, on June 15, 1215.  Afterwards the King returned to Windsor.  Four days later, probably, the Charter itself was engrossed.  In future ages it was to be used as the foundation of principles and systems of government of which neither King John nor his nobles dreamed.”

King John was the youngest of five sons of Henry II.  His oldest brother, Richard, was king, but went off to fight the crusades, where he earned his nickname “Lionheart”.  John’s elder brothers William, Henry and Geoffrey died young.  Richard died in 1199, and John became king.

Richard and John both incurred huge expenses in war, especially in suppressing rebellion in their French domains in Normandy and Anjou.  Both leaned on their nobles to support the expense.  John, who had managed to make himself deeply unpopular, met resistance.  John made increasing demands for taxes of various sorts, including scutage – money paid to avoid military service – and he sold wardships and heiresses for large sums.  Henry II and Richard had done the same, but John’s nobles resisted.  By May 1215, the barons had occupied London and made a series of demands.

In June 1215, the barons met King John at Runnymede.  The Archbishop of Canterbury, Stephen Langton, played an important role in mediating the dispute and eventually the Articles of the Barons were prepared and sealed.

Before it became known as Magna Carta, it was set aside.  Two months after the Articles of the Barons were signed King John (who was not a reliable person) prevailed on Pope Innocent III to declare the Deed invalid.  The Pope said it was “not only shameful and base but illegal and unjust.” He declared it null and void, and ordered King John not to observe it.  This was in August 1215, just 10 weeks after the great symbolic meeting at Runnymede.

The barons were not happy.

John died in October 1216.  His son Henry was only nine years old.  Henry’s advisors saw that re-issuing the Charter in modified form would help keep the young king in power.  So an amended version was issued in 1217, under the title Charter of Liberties.  At the same time the Charter of the Forest was issued.  The Charter of Liberties was the bigger of the two, and soon became known as the Great Charter: Magna Carta.

When he had come of age, Henry III swore his allegiance to a modified version of Magna Carta.  This took place on 11 February 1225, so that is probably the most appropriate date to observe.  The 1225 version of Magna Carta more closely resembles the document which has been so venerated for so long.

Perhaps people will celebrate the 800th anniversary of Magna Carta on 11 February 2025, or perhaps on 22 February 2025 to allow for the change in calendars.  But probably not.

The 1215 version of Magna Carta includes many provisions which are concerned with taxes.  For example:

(2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a ‘relief’, the heir shall have his inheritance on payment of the ancient scale of ‘relief’.

(12) No ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter.  For these purposes only a reasonable ‘aid’ may be levied.  ‘Aids’ from the city of London are to be treated similarly.

(15) In future we will allow no one to levy an ‘aid’ from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter.  For these purposes only a reasonable ‘aid’ may be levied.

(27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church.  The rights of his debtors are to be preserved.

(28) No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.

(30) No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent.

And there are plenty of surprises:

(4) The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services.  …

(5) For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself.  When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear.

(6) Heirs may be given in marriage, but not to someone of lower social standing.  Before a marriage takes place, it shall be’ made known to the heir’s next-of-kin.

(10) If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands.  If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.

(11) If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it.  If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands.  The debt is to be paid out of the residue, reserving the service due to his feudal lords.  Debts owed to persons other than Jews are to be dealt with similarly.

(33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast.

(35) There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom.  There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells[1] within the selvedges.  Weights are to be standardised similarly.

The only part of Magna Carta which is widely remembered (if that is the right word) is found in Articles 39 and 40:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

Together, these became Article 29 of the 1225 version:

(29) No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.  To none will we sell, to none will we deny, to none will we delay right or justice.

Considering the mystic significance which is attached to Magna Carta these days (and especially in 2015) it is interesting to note that Shakespeare, in his play King John, does not mention it at all.  He mentions Stephen Langton, the Archbishop of Canterbury who played a large part in compiling the document.  But he mentions Langton just once, and in passing.  He does not mention Runnymede.

Sir Edward Coke

So why do we honour it so greatly? The short answer is: Sir Edward Coke.  And here we embark on a truly remarkable story of a new reality being formed as myth is piled on myth.

Sir Edward Coke entered the English parliament in 1589, during the reign of Queen Elizabeth I.  In 1594, he became Attorney-General and still held that role when James VI of Scotland became James I of England in 1603.

Elizabeth’s father, Henry VIII, had famously broken from the Church of Rome because he wanted a divorce.  The formation of the Church of England led to increasing oppression of English Catholics.  The oppression sharpened during the reign of Elizabeth.  Elizabeth died without leaving an heir or any obvious successor.  When James VI of Scotland was cautiously chosen as Elizabeth’s successor, the oppressed Roman Catholics of England had hopes that James might treat them more leniently.  After all, James was married to Anne of Denmark who, although a Protestant, had converted to Catholicism.

But these hopes were dashed, and a group of well-educated, pious, Catholic nobles conceived a bold plan to resist the increasing oppression: they would blow up the Houses of Parliament on the day of its opening.  The opening of James’ first Parliament was delayed because the Plague had spread through London.  For the opening of the Parliament, the Royal family, the Lords and the Commons would collect together in the Great Hall at Westminster.  Eventually the date for the opening of Parliament was set for 5 November 1605.  But word of the conspiracy got out.  The night before Parliament was due to open, the whole Parliament building was searched.  In a room immediately below the great hall, a man who called himself John Johnson was discovered.  He had 36 barrels of gunpowder: enough to blow the whole place sky-high.

John Johnson was also known as Guy Fawkes.

King James personally authorised the torture of John Johnson, in an attempt to identify the other conspirators.  Torture was unlawful then, as it is now.  But King James considered that he ruled above the law.  He adhered to the theory of the Divine Right of Kings.  In this, we see the elemental force which was at play in the Constitutional struggles of the 17th Century.  The key question was this: Does the King rule above the law, or is he subject to it?

The trial of the Gunpowder conspirators began on 26 January 1606.  Sir Edward Coke[2], as Attorney-General, prosecuted the case.  He won.  He was a favourite of King James because, on many occasions, he had supported King James’s view that the King ruled above the law.  Later in 1606 he was rewarded for his loyalty and good service by being appointed Chief Justice of Common Pleas.

On the bench, Coke’s view seems to have changed.  This sometimes happens to judges, to the great irritation of governments.  In a number of cases, Coke CJ insisted that the King ruled subject to law.  It is a principle we take for granted these days, but in the early 17th century it was hotly contested.  He rejected King James’ interference with the operation of the Courts.  The King dismissed him from office in 1616.  He re-entered Parliament.

The Petition of Right

In 1627 (the second year of the reign of Charles I) the King ordered the arrest of Sir Thomas Darnel and four others who had refused to advance a compulsory “loan” to the King.  They sought habeas corpus.  The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King].

Darnel’s case in 1627 prompted Coke to draft for Parliament the Petition of Right (1628).  The Petition raised, very politely, various complaints about the King’s conduct, including that:

  • he had been ordering people, like Darnel, to be jailed for failing to lend him money;
  • he had been billeting soldiers in private houses throughout the country against the wishes of the owners;
  • he had circumvented the common law by appointing commissioners to enforce martial laws and those commissioners had been summarily trying and executing “such soldiers or mariners or other desolate persons joining with them as should commit … (any) outrage or misdemeanour whatsoever …”;
  • he had been exempting some from the operation of the common law.

The Parliament prayed that the King “would be graciously pleased for the further comfort and safety of your people, to declare … that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm …”.

The Petition of Right reflected Coke’s distilled thoughts about English law and politics.  In his most famous work, The “Institutes of the Lawes of England”, Coke elevated Magna Carta to previously unrecognised significance.  He claimed of it that it was the source of all English law, and in particular he claimed that it required that the King rule subject to law, not beyond it.  He said that Magna Carta “is such a fellow that he will have no sovereign.”

The Petition of Right was Coke’s way of creating (he would have said “recognising”) the essential features of the English Constitutional framework.

The Petition of Right was adopted by the Parliament but Charles I would not agree to it.  Charles I, like John centuries earlier, wanted to continue raising taxes without the inconvenience of Parliament.  Like King John, he did it by exacting large sums from his nobles, as he had done in Darnel’s case.  Again, the nobles were unhappy.  The Civil War started in 1642.  Charles lost the war and, in 1649, lost his head.  Then came Cromwell, Charles II and James II.

James II was a Catholic and was not popular.  His son-in-law, William of Orange, was persuaded to usurp the throne of England.  In what became known as the “Glorious Revolution”, on 5 November 1688, William landed at Brixham.  That year, 5 November turned out worse for James II than it had in 1605 for James I.  James was deposed and William and Mary became joint sovereigns in James’s place.

But there was a condition.  William had agreed in advance to accept the Petition of Right.  So the parliament of 1689 adopted the petition of Right and it became the English Bill of Rights.  By this path, Sir Edward Coke’s views on Magna Carta gained an unassailable place in the fabric of English law.

In form, the Bill of Rights declares itself to be “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”.

It recites and responds to the vices of James II.  Its Preamble starts this way:

“…  Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom …”

and it then declares certain ‘ancient rights and liberties’.

The English Bill of Rights does, in some ways, reflect Magna Carta.  So:

Magna Carta (1215) Article 12: No ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter.  For these purposes only a reasonable ‘aid’ may be levied.  ‘Aids’ from the city of London are to be treated similarly

Bill of Rights, clause 4: That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

And the ideas underlying Article 20 of Magna Carta and clause 10 of the Bill of Rights are similar:

Magna Carta (1215) Article 20: For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.  In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court.  None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Bill of Rights, clause 10: That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Beyond this other parallels can be found, but it takes the ingenuity of Sir Edward Coke to make them sound persuasive.  For example, Article 61 of Magna Carta of 1215 (which was not repeated in the 1225 version adopted by Henry III) provides for a council of 25 barons to hold the King to his promises, and clause 13 of the Bill of Rights requires Parliaments to be held frequently.

But Coke had persuaded a generation of lawyers and historians that the liberties in the Petition of Right, and thus in the Bill of Rights, were recognised in Magna Carta.  So the importance of Magna Carta was picked up and sustained by the Bill of Rights.

The US Bill of Rights

We do not think about the English Bill of Rights very much these days.  When we hear about “The Bill of Rights” these days, we automatically think of the United States of America.  It is not an accident.  The American colonies had been established by the English when they settled Jamestown in 1607.  By 1773, things were not going well.  The Boston Tea Party took place on 16 December 1773.  It was the colonists’ protest against having to pay taxes to a distant government in which they had no representation.  In 1776 the colonists decided to sever their ties with Britain and on 4 July 1776 they signed the Declaration of Independence.

In 1789 a Constitution was proposed for the newly independent United States of America.  It was a bold and unprecedented venture.  The idea of a federation of states with local as well as a central government was a novelty back then.  The thirteen colonies, anxious about the possible tyranny of a Federal government, put forward 10 amendments to the Constitution.  Those amendments are known, in America and across the English-speaking world, as the Bill of Rights.  They closely reflected the English Bill of Rights of 1689.

Although it is sometimes thought the US Bill of Rights is a human rights document, it is no such thing.  It is no less than a reflection of what is now called the Rule of Law.

The parallels between the English Bill of Rights and the US Bill of Rights are very clear:

English Bill of Rights (1689) US Bill of Rights (1791)
Preamble: By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law 5 – No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
3 – That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious; 3 – No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
4 – That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; See US constitution Article 1, Section 9 “…No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time….”
7 – That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; 2 – A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
10 – That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; 10 – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted
5 – That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal; 3 – No law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Two important provisions of the US Bill of Rights reflect Articles 39 and 40 of the 1215 Magna Carta (Article 29 of the 1225 re-issue).

Magna Carta 1225

Art 29: No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.  To none will we sell, to none will we deny, to none will we delay right or justice.”

US Bill of Rights

“8 – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …  and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; …  and to have the Assistance of Counsel for his defence.

9 – …the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court”

It is no great surprise that the American colonists drew so heavily on the English Bill of rights.  Sir Edward Coke’s Petition of Right represents a stand against the Divine Right of Kings: it seeks to place the ultimate law-making power in the people, through their elected representatives, and it sought to ensure that no-one would stand above the law.  The American colonists in 1789 were in the process of creating a new and powerful body which would hover above the various States.  It looked as though they might be creating a new monarchy.  To guard against that, they proposed the first 10 Amendments to the proposed Constitution.

The US Bill of Rights has very little to do with human rights.  It is all about constraining the power of the new Federal government.

The principle of legality

Article 29 of the 1225 Version of Magna Carta is sufficient justification for the document’s fame.  Its provisions have since been taken to stand for the proposition that punishment can only be imposed by a court, that laws apply to all equally according to its terms, and that all people are entitled to have their legal rights judged and declared by a Court.  This is more grandly expressed as the Principle of Legality or the Rule of Law.

In Australia, we did not adopt a Bill of Rights in our Federal Constitution, and our Constitutional fathers did not have the same reasons to be anxious about a Federal government as the American colonists had a century earlier.  But the High Court of Australia has found in the structure of our Constitution a Principle of Legality which reflects the spirit of Magna Carta as interpreted by Coke.

The power of government includes the legislative power[3], the executive power[4], and the judicial power[5].

The Australian Constitution is divided into chapters.  The first three chapters create the Parliament, the Executive Government and the Courts respectively.  The High Court very early on decided that this gives each arm of government exclusive rights within its own domain.  So, for example, only the parliament can exercise the legislative power, and only the courts can exercise the judicial power.  For present purposes, that means that courts can impose punishment, but the Parliament and the Executive cannot.  Parliament can pass a law which says “Doing x is illegal; penalty 5 years’ jail” but only a court can find that a person has done x, and impose the appropriate punishment.

At least according to Coke, this echoes the provision in Article 39 of Magna Carta that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals…”

It seems odd, and not a little ironic that, in the year of the 800th anniversary of Magna Carta, Australians were confronted with a government which is seriously challenging the Rule of Law.

A Bill introduced into the Federal Parliament in 2015 authorised guards in immigration detention centre to treat detainees, including children, with such force as they think is reasonably necessary.  As a retired Court of Appeal judge said to a Parliamentary enquiry, this would, in theory, allow a guard to beat a detainee to death without the risk of any civil or criminal sanction.

The Social Services Legislation Amendment Bill removed financial support for patients with a mental illness if they are charged with an offence which could carry a sentence of 7 years or more.  This automatically puts a defendant at a disadvantage when facing a serious charge, and they suffer that disadvantage regardless whether they are innocent or guilty.  It looks very much like punishment without trial.

The Abbott government advanced the idea that any Australian who goes to fight with the Islamic State should be stripped of their citizenship by a Minister of the Crown, that is to say, by a member of the Executive government.

Having your citizenship cancelled looks very much like a punishment: but the Abbott government was determined to be able to do it without troubling a Court to see if the relevant facts are proved and the punishment is required by law.  And, archaic as it seems, letting the Minister take away a person’s citizenship looks very much like outlawing or exiling the person without the judgment of his equals.  Punishment without trial.

This is not a political argument: it is an argument about the rule of law and is as serious and important as it was in 1215.

In the 21st century it is too late to deny that Magna Carta has developed a level of significance which its authors may not have noticed or intended.  If we are true to the spirit which Sir Edward Coke found in it; if we are true to the same spirit which informed the Petition of Right and the English Bill of Rights and the American Bill of Rights then we owe it to the past and to the future to resist any attempt by any government to punish or outlaw or exile any person, except by the judgment of his equals.

 

[1] An ancient unit of measure.   But not a very useful unit of measure in a standardised system, because its value varied from place to place.  The English ell = 45 inches; the Scottish ell = 37·2 inches; the Flemish ell = 27 inches.

[2] pronounced “Cook”

[3] the power to make laws

[4] the power to give effect to laws and policies

[5] the power to decide legal questions, impose punishments etc.

Honesty Matters-the Ethics of Daily Life

It is the logic of our times:
No subject for immortal verse
That we who lived by honest dreams
Defend the bad against the worse.

(Cecil Day-Lewis Where are the War Poets, 1943)

Most people understand intuitively the importance of language. We all use it every day in order to function in society. Society without language is inconceivable. But as the torrent of words increases, we come to know that words can be used to trap us or to free us; to help us or hurt us.

In most circumstances, language is intended to convey meaning. Ideally, it should do so accurately. Some writers and speakers betray this ideal, and use language as a stalking horse for quite different ideas they wish to disguise or dare not acknowledge.

Depending on circumstances, this technique may be called tact, diplomacy, euphemism, doublespeak or lying. The proper description depends on the speaker’s purpose.

Tact sets out to avoid giving offence. It suppresses or disguises an unhappy truth to spare the feelings of another. It is falsehood in the service of kindness; a down-payment on future favour. When tact is lifted from the personal to the national scale, it is called diplomacy.

Euphemism does not directly suppress the truth, but disguises it by substituting gentle words for harsher ones. Its intention is benign, if somewhat fey. Its excesses of delicacy inspired Dr Bowdler to strip Shakespeare of any disturbing content: removing, as he said, its ‘blemishes’. Euphemism is especially needed where body parts and body functions are the subject: a cheap frock for recognised facts.

Tact is kind; diplomacy is useful; euphemism is harmless and sometimes entertaining. By contrast, doublespeak is dishonest and dangerous.

When Cecil Day-Lewis wrote the words above, the world was wracked by Hitler’s war. Hitler had done much to restore the fortunes and spirit of the German nation, a nation which had been nearly destroyed by the terms of the Treaty of Versailles.

But Hitler had also been engaged in enterprises which the world would eventually deplore; much of what he did was masked in falsehood; and what was seen and known of its worst excesses was covered over, or denied or ignored by allied powers who did not find truth convenient in that desperate time. The allies knew of Hitler’s death camps but did nothing.

In his closing address at Nuremberg, US prosecutor Robert Jackson said:

‘Lying has always been a highly approved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy. Von Ribbentrop admits the use of the “diplomatic lie.” Keitel advised that the facts of rearmament be kept secret so that they could be denied at Geneva. Raeder deceived about rebuilding the German Navy in violation of Versailles. Goering urged Ribbentrop to tell a “legal lie” to the British Foreign Office about the Anschluss, and in so doing only marshaled him the way he was going. Goering gave his word of honour to the Czechs and proceeded to break it. Even Speer proposed to deceive the French into revealing the specially trained among their prisoners.

Nor is the lie direct the only means of falsehood. They all speak with a Nazi double talk with which to deceive the unwary. In the Nazi dictionary of sardonic euphemisms “final solution” of the Jewish problem was a phrase which meant extermination “special treatment” of prisoners of war meant killing; “protective custody” meant concentration camp; “duty labor” meant slave labor; and an order to “take a firm attitude” or “take positive measures” meant to act with unrestrained savagery. Before we accept their word at what seems to be its face, we must always look for hidden meanings. Goering assured us, on his oath, that the Reich Defense Council never met “as such.” When we produced the stenographic minutes of a meeting at which he presided and did most of the talking, he reminded us of the “as such” and explained this was not a meeting of the Council “as such” because other persons were present…’

Twisting the truth was a commonplace in Hitler’s Germany, but politicians in many regimes use the same technique: a fact emphasised by George Orwell in Politics and the English Language (1946) and in Nineteen Eightyfour (1948). Orwell wrote of the misuse of language by politicians:

‘A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details. The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish squirting out ink.’

It is an astonishing thing that, although Orwell showed the stage tricks used by the main offenders, those tricks continue to work. We sit, most of us, like captivated schoolchildren in a sideshow alley, spellbound as the hucksters of language deceive and dissemble. The contagion of dishonest language has not abated.

When senior politicians speak today, it is essential to listen acutely to appreciate that they are simply staying on message whilst avoiding truth, accuracy or anything remotely approaching an answer to the question they have been asked. Even when they appear to be answering the question, you have to look very closely to see which part of the question they are answering. Remember the skillful evasions of Mr Howard when he was asked a question in Parliament by the Member for Chisholm:

ANNA BURKE, MEMBER FOR CHISHOLM: Prime Minister, was the Government contacted by the major Australian producer of ethanol or by any representative of him or his company or the industry association before its decision to impose fuel excise on ethanol?

JOHN HOWARD, PRIME MINISTER: Speaking for myself, I didn’t personally have any discussions, from recollection, with any of them.

A document obtained by the Opposition under freedom of information laws records a meeting between John Howard and Dick Honan about ethanol, just six weeks before the decision. But Mr Howard says he spoke the truth; that his answer related to a different part of the question and that he has been taken out of context.

This same inclination to use language in order to deceive has infected the public service. At a public meeting in April 2002, I had the opportunity to debate aspects of refugee policy with one Philippa Godwin, then the Deputy Secretary of the Department of Immigration. Philippa Godwin is clearly a woman of great intelligence. I asked her a question about a fence which surrounds the Baxter Detention Centre. The fence is described on a plan of Baxter as a ‘courtesy fence’. I suggested that it was in fact an electric fence. ‘No,’ she insisted ‘It is not an electric fence. It is an energized fence.’ A 9,000 volt energized fence.

Doublespeak uses language to smuggle uncomfortable ideas into comfortable minds. The Nazi regime were masters at it. The Howard Government was an enthusiastic apprentice.  The Morrison government is devoted to it: after all, Scott Morrison learned at the feet of John Howard.

The victims of protective reaction air strikes, or incontinent ordnance, or active defence, or fraternal internationalist assistance, often flee for safety. A small number of them arrive in Australia asking for help. They commit no offence under Australian or international law by arriving here, without invitation and without papers, in order to seek protection. Nonetheless the Australian Government referred to them then, and still refers to them, as ‘illegals’.

Like all doublespeak, ‘illegals’ is used for a purpose: these people are immediately locked up without trial. No doubt it seems less offensive to lock up ‘illegals’ than to lock up innocent, traumatised human beings.  When Scott Morrison became Immigration Minister in the government of Tony Abbott, he tried to rename that group “illegal maritime arrivals”.  (The Migration Act refers to them, more accurately, as “irregular maritime arrivals”).

They are also disparaged as ‘queue jumpers’: a neat device which falsely suggests two things. First that there is a queue, and second that it is in some way appropriate to stand in line when your life is at risk.

In July 2013, the law was changed so that all “irregular maritime arrivals” had to be sent offshore (to Manus Island, Papua New Guinea, if they were unaccompanied males, or to Nauru if they were women, children or family groups).

Until the law changed in 2013, when the ‘illegals/queue jumpers’ arrived in Australia, they were ‘detained’ in ‘Immigration Reception and Processing Centres’. This description is false in every detail. They were locked up without trial, for an indefinite period – typically months or years – in desert camps which are as remote from civilisation as it is possible to be. They were held behind razor wire and slowly sank into hopelessness and despair.

Mr Howard’s congenital dishonesty deceived a nation into accepting these obscenities, while he massaged our conscience with soft words for hard things.

At its foundations, democracy depends on a degree of honesty in politicians. The essence of democracy is that the elected representatives are chosen because their constituents think this candidate or that will best represent their views in parliament. If a candidate lies about his or her beliefs and values, the democratic process is compromised. The greater the lie, the greater the damage to the true course of democracy.

Equally important, the conduct of politicians sets an example for all of us. Children learn by watching our leaders: Mr Howard won the 2001 election by lying: he said, falsely, that some refugees had thrown their children overboard. Refugees were the hot issue in November 2001. Mr Howard showed that it is OK to lie as long as you win. The effects of this, and his many other excursions in dishonesty, will take a long time to eradicate.

Family values was one of the great catch cries of the Howard Government. They came to office in 1996 under the banner of ‘Family Values’. On 8 July 2004, in a major speech in Adelaide, Mr. Howard declared that he stood for a ‘fair and decent society’. These are noble sentiments, but were they to be taken at full value or were they to be interpreted by some special code which we can only discover by looking at what Mr Howard did?

Just a month after the Adelaide speech, the Howard government won an important refugee case in the High Court. Mr al Kateb arrived in Australia in mid-December 2000. He was born in Kuwait. His request for asylum was refused. He found conditions in Woomera so intolerable that he asked to be removed from Australia. Eighteen months later he was still here because, being a stateless Palestinian, there was no country where he was entitled to be, and no country was willing to receive him.

The Migration Act provides that a person who comes to Australia without a visa must be detained, and they must remain in detention until either they get a visa or they are removed from the country. When the Keating government introduced those measures in 1992, one supposes that Parliament suspected that either of those two outcomes would be available in every instance.

They had not allowed for the anomalous case of stateless people. You might think that a government which has paraded itself virtuously as committed to a fair and decent society, with family values and so on, might quickly amend the law to account for these few anomalous cases. But what the government did, in fact, was to argue at every level of the court system that Mr al Kateb, although he had committed no offence in Australia, could be held in detention for the rest of his life. The government won in the High Court, on 6 August 2004.

The thought of an innocent person being jailed for the rest of his life is so shocking that it is impossible to resist the impulse to try and do something about it. Anyone, even the most hardened, must find it a dreadful thing to imagine the circumstances of a person being held in detention forever when they have not committed any offence. It should be a matter of real concern that a government ostensibly committed to a ‘fair and decent society’ is willing to argue for the right to jail the innocent for life.

Likewise, the treatment of the Bakhtiyari family is impossible to reconcile with Mr Howard’s asserted adherence to Christian values and family values.

The family’s claim for asylum foundered, apparently because the government thought they came from Pakistan, not Afghanistan. Like many asylum seekers, they were jailed in Woomera.

Locking up innocent people for years has certain fairly obvious and predictable consequences, especially if the prisoners are children. Depending on their age, resilience and personality, children will retreat into depression and incontinence, or they will take charge by harming themselves or attempting suicide. Either way, the effect on children of prolonged detention is devastating.

The Bakhtiyari case gained a certain notoriety, because the two boys escaped from Woomera, having tried to kill themselves at the tender ages of twelve and fourteen. Regardless of doubt about which country they had fled, one thing was clear: we damaged these children. They were not to blame. The harm they suffered was the obvious and predictable consequence of the treatment we inflicted.

It continued just before Christmas, when their house in Adelaide was raided and they were taken to Port Augusta in preparation for removal from Australia. The baby had a dirty nappy: the mother was not allowed to change it; the younger girl wet her pants in fright; but she was not allowed to change before the five hour drive. Alamdar – his face made familiar to us on TV as he screamed in terror through the steel bars at Woomera – Alamdar was afraid to sleep at night in case of another sudden, wrenching raid. And all the children were haunted by terrors childhood should never know.

The Australian government is responsible for damaging these children. It had a choice at Christmas 2004: to enforce the policy rigidly, or to show kindness to a few damaged children and their parents.

Their response was an interesting test of their pretended Christian values.

The government’s policy of punitive deterrence succeeded in shutting off almost completely the trickle of unauthorised arrivals to Australia. The drowning of 353 people on SIEV X effectively ended the people smugglers’ trade. It is difficult to imagine that sparing the Bakhtiyari family would have triggered a spate of new arrivals, eager to spend years behind razor wire. From there on the cruelty was truly pointless.

On the other hand, showing compassion to the Bakhtiyari family would have been consistent with family values, Christian charity, fairness and decency – the values Mr Howard claimed to hold. His government chose to remove the family, despite increasing public concern.

The removal of the Bakhtiyari family reflected on the character of this country’s leadership. Mr Howard, Mr Ruddock and Mrs Vanstone were personally responsible for the shocking damage suffered by those children. Those politicians held themselves out as Christians; they embraced ‘family values’. But at Christmas time in 2004 they denied kindness or compassion to six children whose lives they had blighted.

Scott Morrison’s mistreatment of the Tamil family previously living in Biloela (Queensland) is another example of the same mentality.  The family comprised: mother, father and Australian-born daughters (aged 4 and 3 at the time).  In 2018, the PM re-opened the detention centre in Christmas Island just for that family.  To make it clear that he intended to return them to Sri Lanka, he held a vastly expensive press conference on Christmas Island.

Unfortunately, the government – then and now – seems concerned that mercy and compassion set a bad precedent. Given that the government had a discretion to allow the family to stay, it is difficult to understand why it insisted on removing a family it had damaged so badly, unless its purpose was to send a message: not to people smugglers, but to us. Its message to us is this: We hold absolute power; we do not have to acknowledge public sentiment; we can crush anyone who messes with us.

This is why honesty matters. Imagine the reaction at the polls if John Howard had told the truth. Imagine if, in 2001, he had said:

‘I know the asylum seekers did not throw their children overboard – they were just doing what any decent parent would do – they were trying to save them from the Taliban, or Saddam Hussein.’

Imagine if he had said at the 2004 election:

‘My government locks up innocent people. We treat them cruelly, because we don’t want to encourage their type. We have power to gaol innocent people for life. I will not help the Bakhtiyari children at Christmas time because I don’t have to. I will only show compassion for popular victims.’

Imagine also how different things might be if the press in this country had shown some spine over the past few years. Many – perhaps most – journalists in Australia today shy away from unpopular truths. The case of Cornelia Rau provided an interesting example. Cornelia Rau was held in immigration detention for nearly a year – initially in a Queensland prison, then in Baxter. She was obviously mentally disturbed. The officials at Baxter deemed her to be mentally sound, but showing ‘behavioural difficulties’. She was held in isolation for most of her time in Baxter. As long as she was Anna, ‘an illegal’ no one outside the refugee network was interested, despite Pamela Curr’s valiant attempts to bring her story to light. Once it was revealed that she was an Australian citizen, the press was in uproar. The story ran for weeks.

In the wake of the Cornelia Rau story, other stories of systemic cruelty in Baxter emerged. For example, Francis Milne, one of the centre’s volunteers from the Uniting Church told the story of Hassan, a 37-year-old Algerian man. He spent nine weeks in solitary confinement in Baxter because he had threatened to commit suicide. He was subjected to a cavity search in front of two females.

And there is the case of Amin, who was in Baxter with his seven year old daughter.

On 14 July 2003, three ACM guards entered Amin’s room and ordered him to strip. He refused, because his seven-year old daughter was in the room. When he refused to strip, the guards beat him up, handcuffed him, and took him to the ‘Management Unit’.

The Management Unit is a series of solitary confinement cells.

I have viewed a video tape of one of the Management Unit cells. It shows a cell about 3½ metres square, with a mattress on the floor. There is no other furniture; the walls are bare. A doorway, with no door, leads into a tiny bathroom. The cell has no view outside; it is never dark. The occupant has nothing to read, no writing materials, no TV or radio; no company yet no privacy because a video camera observes and records everything, 24 hours a day. The detainee is kept in the cell 23 ½ hours a day. For half an hour a day he is allowed into a small exercise area where he can see the sky.

There he stayed from 14 July until 23 July: each 24 hours relieved only by a half-hour visit from his daughter. But on 23 July she did not come. It was explained to him that she had been taken shopping in Port Augusta.

The next day, 24 July, she did not arrive for her visit: the manager came and explained that the daughter was back in Tehran. She had been removed from Australia under cover of a lie, without giving Amin the chance to say goodbye to her.

Anyone who has visited Baxter knows stories like these. But these stories disappear without a trace because the press, with some honourable exceptions, are only interested in the sufferings of an Australian resident.

In presenting an unbalanced view of Australia’s conduct, by not exposing the dishonesty of the Howard and Morrison governments, the press engages in its own form of dishonesty. They help maintain the comfortable illusion of our own worthiness, and we are blind to a society turning sour. When the process is complete, when we have been stripped of our liberties for our own protection, when the values which once held this nation high have been terminally debased, then we will realise that honesty matters.

Michael Kirby Oration 3 July 2010

PRINCIPLES, PRAGMATISM AND POLITICS

Julian Burnside

Given that this is the Michael Kirby Oration, allow me a couple of minutes to talk about Michael Kirby.

Many years ago, Kirby telephoned me at home at about 8.00 on a Sunday morning. I was awake, but my day had not started. His opening words surprised me: “I rang you in chambers, but you were not there.” His tone of gentle reproach suggested that I needed to improve my work habits.

At the time, I was an ambitious young junior barrister, but the idea of being in chambers early on a Sunday morning had not occurred to me. I had only met him once or twice. It was the very early days of the law’s encounter with computer technology. I had shared the platform with Kirby a couple of times at seminars to do with computers and their likely impact on law and legal practice. I thought I knew a thing or two about the subject. His knowledge and insight made a great impression.

If Kirby’s purpose in calling me on a Sunday morning early was to impress me with his industry, it worked. If I had been tempted to think that he was showing off, the balance of his history would prove me wrong: Kirby’s industry is legendary; his output is phenomenal.

There are too many aspects of his productive life to compress into these brief remarks, but one of the enduring themes is founded in a profound ethical choice.  Kirby’s thinking is guided by an unshakeable conviction that human dignity and human rights are the gravitational centre of any civilized society; and that a legal system which escapes the insistent pull of human rights will produce law without justice. Kirby writes for a future which honours that role of law in society.

It seems curious that this might be a matter of ethical choice, since it seems to me so obviously right.  But Kirby’s view of the proper role of law is not shared by everyone: for some whose human rights are not in doubt, law serves better if it gets on with other tasks.

In much of his writing, on and off the Bench, he stands above the crowd and sees further. If he is looking to the future, it is because he sees clearly how the future can be. While contemporary commentators have not been uniform in their appreciation of Michael Kirby’s views, I think posterity will be more generous.

His appeal to future ages will come, in large measure, from the central idea that human dignity and human rights are fundamental. His place in history will depend in part on whether or not we acknowledge the centrality of human rights in our system of law. That idea provokes hostility in some quarters and indifference in others. It is by no means certain that we will end up with a legal system based on the notion that law should produce a just result consistent with the principles of human rights.

If Michael Kirby writes for the future, it is a future I would wish to share. It may be difficult to attain. But he has shown us the way, and he has shown that it is worth striving for.

His decision to live as a gay man without the respectable cover of a heterosexual marriage was an ethical choice; his decision to “come out” was another.

With one possible exception, I have not had to make such profound existential choices.  And I come to the subject of ethics as a layperson, an amateur.  Apart from the narrow field of professional ethics, lawyers are not instructed in ethics.  Professional ethics, for lawyers, deals with such prosaic ideas as not stealing a client’s money, and not being rude to judges.  It does not take a post-graduate degree in philosophy to discover the rules of professional ethics.

The exception was the choice to take on the Howard government in 2001 over the Tampa episode, and then over the issue of the treatment of asylum seekers generally.  For a person who had never been politically engaged, it was a strange choice, but an easy one.  It was made easier by the fact that my naïveté prevented me from foreseeing the personal cost of doing what I did.  But even if I had been smart enough to predict the death threats, the hate mail and the vilification by government acolytes in the maggot end of the press, I would have made the same choice.

If I had thought it through, it was a collision of principle (which said it is essential to do something) and pragmatism (which said “this is a bad career move”). But I made the choice by instinct, not by ethics.

It is a pity that lawyers don’t receive any real training in ethics, because one way or another lawyers, like doctors, are involved in ethical problems which are part of the fabric of any society and which emerge unexpectedly in a society in which technology is evolving rapidly.

Medicine continues to throw up ethical choices of the most fundamental kind.  The conference programme shows how diverse they are.  What constitutes a living human being?  When is a person dead?  When is a person entitled to die?  What are the relevant limiting criteria shaping end of life decisions:  sentience, physical capability, independence, resource allocation?  Does the right of a patient to have an abortion impose a corresponding obligation on a doctor to perform one?

Lawyers have a limited role in making ethical decisions of that sort – we are generally consulted by one or other side of the contest.  But they do not ask “What is the right answer?”.  They tell you their version of the right answer, and ask you to persuade a court (or perhaps a parliament) to embrace that answer.

For barristers at least, this position is in part a result of the cab-rank principle.  Every barrister has had the experience of being asked, at a dinner party “How can you defend someone who you know is guilty?”.  The answer is “The cab-rank principle”.

The cab-rank principle says that if you are offered a brief in a field of your ordinary practice, marked with a fee appropriate to your experience, and for a time when you are available, then you must accept the brief.  It matters not that you despise the client, or the client’s cause or the client’s conduct.  Those matters are subordinated to the idea that everyone is entitled to competent representation.  It’s an important principle, because without it some people would have real difficulty finding anyone willing to represent them.  The fact that people still ask the question highlights the problem:  some lay people – perhaps many of them – think that a guilty person should not be able to have legal representation.  Apart from anything else, this view conveniently forgets that everyone is presumed innocent until proven guilty, and that the lawyer’s role is to represent the client, not to judge his guilt or innocence.

I should hasten to add that this principle does not apply to pro bono work.  Self-evidently, pro bono work is unpaid, so pro bono work does not meet the criterion that the brief is marked with an appropriate fee.  In performing pro bono work, barristers not only discharge the useful function of supplementing the inadequacy of Legal Aid, but in addition they give voice to their own ethical choices.

The presumption of innocence, and the requirement that all people who go to court are entitled to competent representation illustrates the way various ethical choices have been played out in our society.  The choice that all people are entitled to justice, not only the powerful.  The choice that an accused person should be presumed innocent – the same presumption does not operate in Japan.  The choice that, in the contest between state and citizen, the parties should meet on equal terms, with each competently represented.

The most fundamental of these choices is the first – that our conception of justice includes the idea that all people are entitled to it.  This is neither universal nor self-evident.  In his history of the Peloponnesian wars, Thucydides retells the Melian dialogue.  In its war against Sparta, Athens decided to invade the island of Melos.  Although Melos had not harmed Athens, and was neutral in the war, it was strategically located.  Athens wanted Melos fore its strategic importance.  An Athenian delegation went to the Commissioners of Melos and came straight to the point.  They agreed that it would seem unjust for them to invade Melos, but noted that “Justice is only relevant between equals in power.  Where power is not equal, the strong do what they will, and the weak suffer what they must.”

Feudal societies and dictatorships tend to share the Athenian view.  Neither the Taliban nor those who hold Taliban in Guantanamo Bay think that justice is for all.

An equally deep ethical choice is involved in deciding what constitutes justice.  The answer to this question helps shape innumerable aspects of the legal system.  Try this.  A mother, stressed already by school holiday torment, is in the kitchen when she hears a crash in the living-room.  She rushes to see what has happened and finds her favourite, most precious vase shattered on the hearth.  She knows with a certainty which transcends analysis that her youngest was responsible.  She fines him and sends him to bed without dinner.  As it happens, he was in fact responsible for breaking the vase.

The alternative version:  when the mother finds the vase, she realizes that no-one should be punished without good cause and due process.  This is the minimum requirement of justice.  She seeks out each child in turn and asks questions calculated to discover the truth of the matter.  Suspicion eventually falls on her youngest.  She gives him a chance to explain.  Not convinced by his explanation she sends him to bed without dinner.  As it happens, he was not responsible for breaking the vase.

The question is:  Which of these two results is more just?  The first is pragmatic; the second accords with principle.  But most people cannot choose which is right without hesitation.  Due process is inherent in our conception of justice.  But bad process can yield right results, just as good process can produce wrong results.  The legal system, with all its concerns about process and procedure, is designed to produce justice.  The idea of a mob-lynching of a suspected criminal is abhorrent, even if it happens that the mob is right in their choice of victim.

This simple example illustrates how hard it is to choose what constitutes justice.  The difficulty is compounded by the fact that our ethical criteria are not static.  What appears just in one age may be repugnant in another.  A crude illustration of this process is found in social attitudes to capital punishment.

Ronald Ryan was the last person put to death by an Australian Government.  The fight to save him from the gallows in 1967 was hotly contested.  Led by Barry Jones, those campaigning against capital punishment were vilified by the government of the day and by the tabloid press.  Now, 43 years on, no government in Australia today argues for reintroduction of capital punishment, and members of the community who support capital punishment are either a small minority or surprisingly quiet.

Nevertheless, there was a strong body of opinion in Australia which supported the idea of executing the Bali bombers, and even more local opposition to the execution of the Bali 9.  One integer of the ethical choice, it seems, is the nationality of the prisoner being sentenced.

One hundred years ago there was near universal support for the death penalty as an appropriate feature of the justice system.

Two hundred years ago, capital punishment was a commonplace, as was public flogging.  What was just then seems to us barbaric now.

Another example can be found in the recent history of South Australia.  Until the early 1960s, the South Australian Government had a practice of removing aboriginal children from their parents.

There have been three attempts by members of the stolen generations to recover damages.  Actions in the Northern Territory and New South Wales failed.  Recently, in August 2007, an action brought in South Australia succeeded.

In the South Australian case, the Plaintiff was Bruce Trevorrow.  Bruce was the illegitimate son of Joe Trevorrow and Thora Lampard.  They lived at One Mile Camp, Meningie, on the Coorong.  They had two other sons, Tom and George Trevorrow.

They lived at One Mile Camp because in those times it was not lawful for an aborigine to live closer than one mile to a place of white settlement.

When Bruce was 13 months old, he got gastroenteritis.  Joe didn’t have a car capable of taking Bruce to the hospital, so some neighbours from Meningie took him to the Adelaide Children’s Hospital where he was admitted on Christmas Day 1957.  Hospital records show that he was diagnosed with gastroenteritis, he was treated appropriately and the gastro resolved within six or seven days.  Seven days after that he was given away to a white family.

The family lived in suburban Adelaide.  They had a daughter who was aged about 16 at the time.  She gave evidence at the trial as a woman in her late middle age.  She remembered the day clearly.  Her mother had always wanted a second daughter.  They had seen an advertisement in the local newspaper offering aboriginal babies for fostering.  They went to the hospital and looked at a number of eligible babies and saw a cute little girl with curly hair and chose her.  They took her home and when they changed her nappy they discovered she was a boy.

A short time later, Bruce’s mother wrote to the Department asking how he was doing and when he was coming home.  The Department replied that Bruce was doing quite well but that he was not yet well enough to come home.  Bruce had been given away weeks earlier.

For the next 8 years, they prevented Bruce’s mother from finding out where he was.

When Bruce was three years old he was taken to hospital again:  he was pulling his own hair out.  When he was eight or nine years old, he was seen a number of times by the Child Guidance Clinic and was diagnosed as profoundly anxious and depressed, and as having no sense of his own identity.

Every time he has been assessed by a psychiatrist, from the age of 9 to the age of 49, the diagnosis has been the same:  anxiety, profound depression, no sense of identity and no sense of belonging anywhere.

Bruce’s brothers came to give evidence at the trial.  A striking feature of the trial was the astonishing difference between Bruce and his brothers, Tom and George, who had not been removed.  They told of growing up with Joe Trevorrow, who taught them how to track and hunt, how to use plants for medicine, how to fish.  He impressed on them the need for proper schooling.  They spoke of growing up in physically wretched circumstances, but loved and valued and supported.  They presented as strong, resilient, resourceful people.  By contrast, Bruce was profoundly damaged, depressed and broken.

In its defence, the Government of South Australia argued that removing a child from his or her parents did no harm.  This contest led to one of the most significant findings in the case.  Justice Gray said in his judgment:

“[885] I find that it was reasonably foreseeable that the separation of a 13 month old Aboriginal child from his natural mother and family and the placement of that child in a non-indigenous family for long-term fostering created real risks to the child’s health.  The State through its emanations, departments and departmental officers either foresaw these risks or ought to have foreseen these risks. …  ”

That finding was based on extensive evidence concerning the work of John Bowlby in the early 1950s, and it also accords with commonsense.  We all have an instinct that taking children from their parents will cause great pain.

It is fair to assume that most of the people involved in this conduct considered that they were acting justly, for was it not self-evident that an aboriginal child would be better off growing up in white, middle-class suburbia than in the shabbiness of an aboriginal settlement, even if the shabbiness was itself the result of aboriginals being alienated from white society?

Now we see it differently.  In its first sitting, the Rudd government said “sorry”” to the stolen generations.  It seemed almost too good to be true:  it was the apology so many had waited so long to hear.  And when we heard it, we rejoiced at the sound of some of the noblest and most dignified sentiments ever uttered in that place on the hill.  It is worth recalling some of Kevin Rudd’s words:

“Today we honour the indigenous peoples of this land, the oldest continuing cultures in human history.

We reflect on their past mistreatment.

We reflect in particular on the mistreatment of those who were stolen generations – this blemished chapter in our nation’s history.

The time has now come for the nation to turn a new page in Australia’s history by righting the wrongs of the past and so moving forward with confidence to the future.

We apologize for the laws and policies of successive Parliaments and Governments that have inflicted profound grief, suffering and loss on these our fellow Australians.  …

For the pain, suffering and hurt of these stolen generations, their descendants and for their families left behind, we say sorry …”

The day Kevin Rudd said sorry to the stolen generations was 13 February 2008.  It will be remembered as a day when the spirit of the nation stirred.

The apology raised a couple of new ethical problems.  The first is this.  The Prime Minister acknowledged that the removal of children from their parents caused great harm, both to the parents and to the children.  He acknowledged that it was a great wrong.  The judgment in Bruce Trevorrow’s case shows that the harm was predictable, and was foreseen – or at least foreseeable – by the government at the time.  Is there not an ethical obligation to go further than saying “sorry”?  Where a moral wrong has caused foreseeable harm, surely saying sorry is not enough – it is ethically necessary to help remedy the harm done.

The second is this.  Many Australians – about 80% it seems – approved strongly of the apology.  Many people obviously felt that something profoundly important had happened.  Many, I am sure, felt better in themselves for the fact that we had, as a nation, apologized to the stolen generations.

But is it ethically right for us to feel cleansed and relieved by the apology, and do nothing to persuade the government that an apology is not enough, and that compensation is needed?  It is clear enough that saying sorry is useful and to a degree palliative.  But it is clear also that the harm which the Prime Minister acknowledged will not be remedied by an apology alone.  Even compensation will not mend the wounds entirely, but compensation will go further toward that end than an apology alone.

The next ethical choice we need to make, as a society is for a national compensation scheme, run by the States, Territories and Commonwealth in co-operation.  The scheme I advocate would allow people to register their claim to be members of the stolen generations.  If that claim was, on its face, correct then they would be entitled to receive copies of all relevant government records.  A panel would then assess which of the following categories best describes the claimant:

  • removed for demonstrably good welfare reasons;
  • removed with the informed consent of the parents;
  • removed without welfare justification but survived and flourished;
  • removed without welfare justification but did not flourish.

The first and second categories might receive nominal compensation.  The third category should receive modest compensation, say $5,000-$25,000 depending on circumstances.  The fourth category should receive substantial compensation, between say $25,000-$100,000 depending on circumstances.

The process should be simple, co-operative, lawyer-free and run in a way consistent with its benevolent objectives.  If only the governments of Australia could see their way clear to implement a scheme like this, the original owners of this land would receive real justice in compensation for one of the most wretched chapters in our history.  Unfortunately, as a community we seem to have made an ethical choice which says that saying sorry is enough.

It is interesting to contrast the current attitude to removal of aboriginal children with attitudes at the time it happened.  Then it was (at least to many) an ethical practice.  Now it is not.  If, in 2010, officers of a government department regularly decided to remove children from parents who lived in impoverished suburbs and placing them with white parents in more wealthy suburbs, in order to give them a better chance in life, the community will be rightly horrified.  Few people would say that it makes any difference if the children being removed are white, black, Asian, Christian, Jewish or Muslim.

This raises troubling questions about later assessment of current orthodoxies.  In 2003 I was briefed by the Office of the Public Advocate in Victoria to act in an end of life case.  The patient, known as Mrs BWV, was a middle-aged woman who had been in a persistent vegetative state for three years.  She was kept alive by being fed via a percutaneous endoscopic gastrostomy.  The Medical Treatment Act provided that a person’s guardian may, on behalf of the patient, refuse medical treatment.  However the Act went onto say that it did not apply to palliative care.  Palliative care was defined as including the reasonable provision of food and water.

The Public Advocate was acting as BWV’s guardian.  He sought a court declaration that feeding via a percutaneous endoscopic gastrostomy was “medical treatment” for the purposes of the Medical Treatment Act.  He made it clear that, if feeding via PEG was properly regarded as medical treatment in the circumstances, he intended to withdraw consent.  The inevitable result of that would be that Mrs BWV would die over the course of a week or so.

Mrs BWV’s family supported this course, saying that their mother had often expressed horror at the idea of being kept alive artificially if she were in a permanent coma.

It struck me then, and now, as ethically right that a person should be allowed to choose to die, and to dictate in advance their choice if circumstances render them unable to express a choice at the relevant time (incidentally, it struck me then as it strikes me now that if a decision to die is legitimate then requiring slow death by starvation is barbaric, when death by injection would be nearly instantaneous).

That said, it is not difficult to see that in 20 or 50 or 100 years from now social mores may have changed such that allowing a person to die in these circumstances would be regarded as unethical, immoral or criminal.  Sir Francis Galton’s theory of eugenics had many adherents for decades, until the Nazis gave it a bad name.  There is already a strong and vocal movement which opposes the idea of allowing a person in the position of Mrs BWV to die.  There is no certainty at all that the ethical choices we make now will be viewed benevolently by later generations.

Perhaps not surprisingly, I see Australia’s treatment of refugees as one of ethical choice.  It goes to the heart of whether we are a just society, and for any lawyer, justice is – or should be – a central concern.  It is pre-eminently an area where principle, pragmatism and politics collide.  In recent months, the debate about boat-people has reignited.

Recent comments by Tony Abbott suggest that, if elected, he would take a much harder line on what he calls ‘border protection’; he would reintroduce the Temporary Protection Visa; he would reintroduce the Pacific Solution; he would reintroduce the extraordinary idea that asylum seekers, held indefinitely despite having committed no offence, should be liable to the government for the daily cost of their incarceration.  These things were bad under Howard and Ruddock.  What is alarming is that Abbott immediately gained ground in the polls.

Clearly, he had taken his cue from polling in the marginal electorates and saw that pushing back Muslim refugees would be popular.  He lied by suggesting that we were being flooded by boat people, whereas in fact the arrival rate is still tiny by any measure.  He condemned all people smugglers to moral depths, as if all were in the same moral basket.

The people of this country, by and large, approved of his idea of mistreating the innocent to deter others from seeking our help.

Kevin Rudd’s principles should have rejected Abbott’s approach, but he quickly followed suit, and started talking tough about boat-people – he had figured out that decent treatment of refugees would work against him in the electorate.  Of course his harshest comments were directed against people smugglers, because a frontal attack on refugees might have looked a bit too harsh.

But surely the parable of the good Samaritan demands a humane response to people who, without committing any offence come here and politely ask us to protect them.  And let us not forget that Dietrich Bonhoeffer was a people smuggler.  And so was Oskar Schindler, and so was Captain Schroeder, the master of the MS St Louis who tried valiantly to find a safe country for 900 Jewish refugees in 1939, but was eventually forced to return them to Europe where more than half of them perished in concentration camps.

Bonhoeffer, Schindler and Schroeder were people smugglers who made dangerous choices for principle against politics and pragmatism.  We honour their memory.  For political leaders in this country, especially self-proclaimed Christians, to prefer politics over principle is as disappointing as it is familiar.

This morning’s newspapers tell us that Julia Gillard is about to turn her attention to boat-people.  It would be an easy thing for her to take the initiative and respond in a principled way.  She could demonstrate just how flagrantly Abbott has tried to mislead the public on this issue.  She could point out that, even at the current rate of arrival, it would take 20 years to fill the MCG with boat-people.  She could point out that about 90% of boat-people are ultimately assessed as genuine refugees who are legally entitled to our protection.  She could point out that, the Taliban insurgency in Afghanistan is so great that our troops are scarcely gaining ground, and that most boat-people in recent times are Afghans fleeing the Taliban.   She could point out that, if we are concerned about a sustainable population, for every boat person who comes to Australia each year, we accept 20 new permanent economic migrants who come here as a matter of free choice.

Faced with these facts, the public might think that the case for human decency is overwhelming.  But I fear that pragmatism of the crudest sort will govern the outcome.

Genuine protection of human rights is a necessary feature of a Just Society.  Any worthwhile human rights framework will guarantee as inalienable rights those conditions which are generally regarded as necessary for a decent human existence.  A survey of the guaranteed rights in other Western democracies shows that they all guarantee the following rights and freedoms:

  1. Right to life and liberty
  2. Freedom of religion, speech, press and assembly,
  3. Freedom from arbitrary search and seizure
  4. Due process and equal protection under law
  5. No cruel and unusual punishment
  6. No slavery
  7. Privileges and immunities, due process, ,
  8. Right to vote

The Israeli philosopher Avishai Margalit has explored the question whether a just society will also necessarily be a decent society.  He tests the question by asking whether a society which is just may also choose to tolerate ‘humiliating institutions’.

What does Margalit’s proposition mean? He asks us to imagine a village in which food aid is to be distributed. Each villager needs one kilogram of rice. A just distribution may be achieved by visiting each house in the village and handing out the appropriate number of rice parcels. An alternative means is to drive through the village and tip the rice parcels off the back of the truck, with police on hand to ensure that no-one tries to take more than one package. Both methods result in an equal distribution, and thus satisfy John Rawls’ famous test for a just society. But the second method is humiliating. As Margalit says –

“The distribution may be both efficient and just, yet still humiliating… The claim that there can be bad manners in a Just Society may seem petty – confusing the major issue of ethics with the minor one of etiquette. But it is not petty. It reflects an old fear that justice may lack compassion and might even be an expression of vindictiveness. There is a suspicion that the Just Society might become mired in rigid calculations of what is just, which may replace gentleness and humane consideration in simple human relations. The requirement that a Just Society should also be a decent one means that it is not enough for goods to be distributed justly and efficiently – the style of their distribution must also be taken into account”

Margalit develops this, arguing that, of all the goods which must be equally distributed, the most fundamental is self-respect.  Self-respect precedes other basic goods – freedom of thought, speech and movement; food and shelter; education and employment – because self-respect is necessary if a person’s existence is to have any meaning at all.  Without the possibility of self-respect, a person’s life can have no purpose, and pursuit of life’s other goals is a meaningless exercise.  By this path, we see the undeniable centrality of human dignity in any coherent social framework, just as Kirby has consistently argued.

For some time, without knowing it, Australia has been wrestling with this great ethical choice: do we want to be a decent society?  Do we actually believe in human rights, or do we simply pay lip service to the idea?  There are worrying signs that we have resolved the question the wrong way.

Broadly speaking, Australians have a fairly respectful attitude to human rights.  If most Australians were asked what they thought of human rights they would say that human rights matter.  The question then arises:  How is it that those same people watched with unconcern as David Hicks languished for years in Guantanamo Bay without charge and without trial?  How is it that they watched with unconcern for years as innocent men, women and children were locked up indefinitely in desert jails merely because they were fleeing the Taliban or Saddam Hussein?  How is it that we have managed such enduring complacency to the plight of the aborigines whose land was taken and whose children were stolen?  How is it that we are so indifferent to the draconian effects of the anti-terror laws as they are applied to Muslims in the Australian community, when we would not tolerate similar intrusions on our own rights?

We have seen recently an unhappy reflection of this ambivalence about human rights.  After an exhaustive consultation process, The Brennan committee recommended that Australia enact a Human Rights Act, of the sort we have in Victoria and the ACT.  The Brennan committee received more submissions than any government enquiry in Australia’s history.  The submissions were overwhelmingly in favour of a Human Rights Act.  But in April, the Rudd government announced that the government would not put forward a bill for a Human Rights Act.  It was a triumph of practical politics over principle.  Not only is Australia the only western democracy not to have a Human Rights Act, we are probably the only country in the world to have actively chosen not to have one.  How is it that, as a fairly benign democracy, we have ended up in this position?

The answer I think is this:  Australians subconsciously divide human beings into two categories:  Us and Other.  We think, perhaps subconsciously, “My rights matter, and so do those of my family and friends and neighbours, but the human rights of others do not matter in quite the same way because, (without quite saying it) the Others are not human in quite the same way we are”.  It is dangerous thinking and profoundly wrong.

We have human rights not because we are nice or because we are white or because we are Christian but because we are human.  This is something the Australian public do not generally understand.  So they are easily spooked by the utterly misguided and misleading comments of people like Cardinal Pell and Bob Carr; their anxiety is reflected in polling in marginal electorates, and politics trump principle.

Of all the things that might be said about Australia in the 21st century, the most depressing is this: political leaders of both major parties are driven almost completely by pragmatism, and not by principle.  Malcolm Turnbull tried to cling to principle in relation to global warming, and he was dumped by his party.  Neither Rudd nor Abbott have allowed their Christian values get in the way of focus group results.  It is too early to say whether Julia Gillard will be any better.

The ethical choice implicit in these matters reflects badly on the country.  I began by lamenting that lawyers do not study ethics at university.  Perhaps the real problem is that Australians are not taught ethics at school: they learn ethics by observation, by watching what sports people do, by watching what politicians do.  Heaven help us.

Climate Change

Helen Sykes has published more than 30 books in the Future Leaders series (see https://www.futureleaders.com.au .  The next Future Leaders book is Climate Change and Health.  She asked me to write a chapter, and said I could put it on my website:

Climate Change and Human Rights

Climate Change represents the greatest challenge to human existence we have ever experienced.

This is not a universal view.  On 29 April 2019, Dr C.J. Hamilton wrote:

“Climate Change” alarmists base their case for man-made Global Warming on two key claims.  Their first claim is that carbon dioxide is “dirty” and a pollutant – it is not.  Their second claim is that the increase in global temperature since the onset of the industrial age around 1850 is primarily due to the increase in atmospheric carbon dioxide caused by the combustion of fossil fuels – it is not.  There is no evidence in all the historical scientific records to support this claim.  The real cause of “Global Warming” is the repeat of the Warm Period cycle which made Greenland green a thousand years ago during the Medieval Warm Period and caused the Little Ice Age from 1350 to 1850.

It’s not a view I do not share.  If Dr Hamilton would consider me a “Climate Change alarmist” so be it.  But although I am persuaded that carbon dioxide in the atmosphere is the principal cause of Climate Change, I do not regard it as “dirty”, or a “pollutant”.  And, despite Dr Hamilton’s sharp views, I regard Climate Change as very important and a major threat to our species.

A lot of people think that our knowledge of Climate Change dates from Rachel Carson’s The Silent Spring (1962) or Al Gore’s later expressions of concern about it.  In fact, we have known the mechanism of Climate Change for much longer: roughly 160 years.

It is worth considering the earlier history of Climate Change.  In the 1820s, Joseph Fourier calculated that a planetary object the size of Earth should not be as warm as it is, given its distance from the Sun, and the relatively small amount of sunlight falling on its surface.  We now know that Venus and Mars both have atmospheres, as does the Earth.  The atmosphere of Venus is about 100 times as dense as the atmosphere on Earth. Venus is closer to the sun than Earth is; Mars is further away.  To make sense of the table that follows, it is worth bearing in mind (in relation to Fourier’s observation) that Venus and Earth are roughly the same size; Mars is much smaller than both. The atmosphere of Mars is about 1% as dense as the Earth’s atmosphere.

Planet        distance from Sun           av. temperature

Venus         108 million km                  461o C

Earth          150 million km                  61o C

Mars          228 million km                  -60o C

The temperature on Mars ranges from 20o C in daylight  to -73o C at night.  As most commentaries on Mars note, its atmosphere is so thin that it does not have a thermal blanket to trap heat.  The contrast between Marrs, Venus and Earth is obvious.

In about 1859, Tyndall discovered that water-vapour was an important heat-trapping agent, and that it tended to trap carbon dioxide, which was also very good at trapping heat, by preventing the escape of infra-red radiation. The trapped heat enables the atmosphere to hold more water vapour, more CO2  and so on.  He demonstrated this on 10 June 1859 in a Royal Society lecture, pointing out that coal gas and ether strongly absorbed infrared heat

The central insight was in fact given earlier in a paper by Eunice Newton Foote, in about 1856, but Tyndall gets the credit.  Some things just don’t change.   Eunice Foote was an American scientist, inventor, and women’s rights campaigner from New York.  At a conference in 1856, she presented a paper titled “Circumstances Affecting the Heat of the Sun’s Rays” which suggested that changing the proportion of carbon dioxide in the atmosphere would change the Earth’s temperature.

In the 1890s, Svante Arrhenius demonstrated that CO2 trapped infra-red rays, and that the consequent warming would enable more water vapour to be held in the atmosphere, and that water vapour would in turn trap more heat in the atmosphere.  He worked out that if you halved the amount of atmospheric carbon dioxide, the temperature of Europe could drop by as much as 4-50C.  Conversely, increasing the level of CO2 in the atmosphere would increase the average temperature of the Earth.  His calculations were remarkably accurate.  (The concern of 19th Century scientists with water vapour is probably a reflection of the fact that the Industrial Revolution was, in large part, powered by steam).

Between the four of them: Fourier, Foote, Tyndall and Arrhenius showed us what we needed to know about the mechanism of Climate Change.  We ignored the science, but now it’s getting critical.  Let’s hope we don’t allow politics to distract us too much: our future depends on understanding the implications of what we have known for more than a century.  Al Gore simply reminded us of this “inconvenient truth”.  And Dr C.J. Hamilton shows plainly that it is a very divisive issue.  The sad fact is that it has become highly political.

in 2011 the Israeli writer Yuval Noah Harari wrote a book called Sapiens. It is a history of our species, homo sapiens. He makes the point that we have been around for about 200-300 thousand years.  Until we discovered agriculture we lived in extended family groups, hiding from our predators. But when we discovered agriculture, about 12 thousand years ago, we started living in villages, towns, cities.

Harari raises a fascinating  question, which he does not answer: Are we genetically disposed to be concerned about the immediate group rather than the entirety of our species? It’s a good question, and all the more important because Climate Change is the first phenomenon in history which threatens our entire species.  And that threat is now at its most visible and critical phase: in November 2018, the IPCC reported that we have until 2030 to take serious steps to defeat Climate Change, or it will be too late.  Despite the urgency of that warning, the government in the USA seems to deny the reality and seriousness of Climate Change; Australia’s major political parties seem incapable of formulating policies which accept the sorry facts, the mechanism for which has been known since 1856: both of Australia’s major political parties seem contented to ignore the science (as well as the evidence of our warming climate), and to keep exploiting our fossil fuel resources, either for use or sale.  Is it too cynical to think that their attitude to Climate Change might be different if they did not receive large donations from the fossil fuel industry?

Dr C.J. Hamilton’s disdain for Climate Change is reflected in the fact that (in Australia) the only political party to take Climate Change seriously is the Greens, and that party is treated as a refuge for people whose ideas do not deserve to be taken seriously.

Harari’s question has immediate importance for all of us: unless we are willing to be so selfish that we will accept the best the planet has to offer us, despite the fact that future generations will probably be unable to survive on this planet.

It troubles me that, as a species, we seem unwilling to accommodate the idea that it will be difficult for us to keep going like this; that we need to recognise that Climate Change is a serious threat; a serious threat to us, and to the whole of our species.

In Australia, we seem able to accept all that is good, while ignoring the dangers we have created. If the bushfires over the summer of 2019-2020 were a kind of warning, we seem able to ignore the warning.

Perhaps it is because we have a government which has denied the existence of Climate Change for a long time and a PM (Scott Morrison) who took a lump of coal into the parliament, apparently to show us how safe it is! Perhaps it is because we have a dis-spirited Opposition which does not have a clear policy on Climate Change.

Perhaps politicians in both major parties see that they will be long gone before the harshest consequences of Climate Change are apparent; and for that reason they are willing to accept huge donations from the fossil-fuel industry. I have a different view.

For my part, I expect to live out my life before the worst effects of Climate Change make human life on Earth impossible, but I think we all have an obligation to make sure that we leave the planet as liveable for the future as possible, or at least foreseeable.

It would be a fine thing if the science of Climate Change turned out to be wholly wrong, but that seems highly unlikely.  So far, all the evidence seems to support the science.  It is interesting that politicians who are willing to dismiss the science of Climate Change would probably not be willing to board a plane if science told them it had a 20% chance of crashing before it arrived at their destination.  And most politicians who are willing to dismiss or ignore the science of Climate Change nevertheless use mobile phones, the functioning of which is plainly a product of science.

The rich, advanced countries in the world have benefitted greatly from the phenomena which are responsible for Climate Change: the use of fossil fuel to power the remarkable enterprises of the post-industrial revolution world.  But Climate Change has consequences for every country, rich and poor; for the entire planet.  The phenomena responsible for it are, essentially, fossil fuels used to create light, heat and energy.

While the mechanism of Climate Change has been known for about 160 years, the precursors go much further back: to Newton’s time.  Newton’s law of the conservation of energy teaches us that energy can neither be created nor destroyed; rather, it can only be transformed or transferred from one form to another.    So, an explosion of petrol in an engine is transformed into motion, heat, noise etc..

Fossil fuels (coal, natural gas and oil) were produced tens of millions (or hundreds of millions) of years ago as a product of the sun’s energy (Sunlight provides the energy for plant growth; plants eventually die and become coal, etc.).  Fossil fuels store energy in the bonds between the atoms that make up their molecules. Burning the fuels breaks apart those bonds. This releases the energy that originally came from the sun.  That is why timber can be burned to produce (release) heat.  Allowed enough time, the timber becomes a fossil fuel. Simply stated, the sun is the original source of energy on this planet (and all others in our solar system).

It is worth remembering that the fossil fuels we use today store energy from the sun from millions of years before our species existed.  And since the start of the industrial revolution, at least, we have been releasing that energy with increasing enthusiasm, to the great profit of some, but at a terrible risk, eventually, to us all.

The difficulty (and the confusion) about the conservation of energy arises where the transformation of stored energy to noticeable energy results in wasted energy.  So, the heat and noise produced by fuel in a car engine are forms of energy which are difficult or impossible to capture and re-use.  When a stick of dynamite explodes, the chemical energy is transformed into heat, noise (sound energy) and movement of objects (motion energy).

Energy which dissipates that way is difficult to harness for useful purposes.  Because of this, Newton’s law of the conservation of energy is not self-evident.  The simple fact is that all the energy we use ends up going somewhere.  Using fossil fuels releases energy which arrived on the Earth  many millions of years ago.  If we use fossil fuels now, the stored energy has to go somewhere.  Using fossil fuel means that energy will be released which arrived on the Earth millions of years ago.  The science of Climate Change shows that the stored energy ends up warming the vast amount of water in the oceans, and causing catastrophic weather effects: increasing average temperatures, storms and so on.

And where a by-product of the transformation of one form of energy to another is CO2 (or water vapour, nitrous oxide, methane or ozone), the tendency of those chemicals to trap infra-red radiation in the atmosphere means that our planet gets warmer.

The fact that the sun is the original source of energy on this planet raises interesting possibilities for Australia.  I have heard that if just 3% of the centre of Australia was covered with solar panels, we would produce enough electricity for the entire globe.  There are many obvious practical difficulties with implementing that approach, but it makes a very important point about Australia’s natural advantages.

Sunshine could easily create enough electricity for all of Australia, and there would be a lot of energy left over.  That’s important, given that the sun does not shine brightly every day, and does not shine at all at night.

But on days when the sun shines brightly, the use of surplus sunshine, in a country like Australia, raises many possibilities, especially as the spare sunshine could easily be used to create energy which can be stored and used later.  For example  Alan Finkel, Australia’s chief scientist, has suggested using the energy from surplus sunshine to split water molecules into hydrogen and oxygen.  Later, the hydrogen  could be burned (as a source of energy) and the by-product of this is, of course, water.  Hydrogen is readily transportable.

Other suggestions include using sunshine to superheat various salts which can be stored underground as a medium- to long-term heat storage.  Another suggestion is to use surplus sunshine energy to lift water in projects like Snowy 2.0.

Wind power is another obvious energy source.  Europe, especially, has many wind-turbines in use.  The number of wind farms in Australia is increasing, but depends largely on government encouragement which at present is sorely lacking.

And Elon Musk has shown how efficiently energy can be stored in Lithium ion batteries.  Australia has vast deposits of Lithium: one prediction says that Western Australia could supply half the world’s Lithium.  Whether Lithium ion batteries remain a preferred way of storing energy is not clear, but it offers immediate possibilities.

Right now, the wealthiest countries in the world are run by the luckiest generation in history.  The baby-boomers are a generation which has not seen a World War, or a Depression, although it remains to be seen if the Covid-19 pandemic changes that.  It is a generation which has had the very best the world can offer.  This has been managed (in part) by massively exploiting the fossil fuel resources of the Earth, the impact of which is being felt, especially, in poor countries which cannot afford to protect their people against it; and in low-lying countries, which are becoming increasingly unliveable.  And yet, the richest countries in the world are doing little or nothing to protect poorer countries from the impact of what we have done.  The injustice of it is obvious.

Australia is in an interesting position.  Our domestic CO2 production is relatively small by world standards: China is the largest producer, USA number 2; Australia number 17. However on a per capita basis Australia is at the top of the list: per head of population, Australia is responsible for more greenhouse gas emissions than any other country.

Unfortunately it is easy for us, who have benefitted from the use of fossil fuel, to deny that there is a problem or to assert that it will resolve.   After all, the consequences are comfortably remote.  By contrast, the world’s reaction to Covid-19 was much sharper because it showed immediate consequences.  That said, America’s response was tragically relaxed.  As at the start of June 2020, about 105,000 people had died in America because of Covid-19.  It took a delayed (and relaxed) approach to the pandemic, and had the biggest death toll in the world.  In Australia we responded much more actively, and our per capita death rate was very low, as at the start of June 2020.

But even America’s death toll was way less than 1% of its population.  Yet its approach to the threat of Climate Change, which threatens 100% of its population (as well as the population of the rest of the world), is to deny it or ignore it.  And the reason for that striking difference appears to be simply this: Covid-19 is an immediate threat, with consequences which are visible right now; Climate Change is a threat that might not destroy us for 50 or 100 years.  Our “leaders” will be long dead before the consequences of their short-sightedness are noticed; but ignoring Climate Change rewards Americans with a booming economy.  As a result, political pressures mean that warning about Climate Change (let alone taking steps against it) looks politically difficult; politically disadvantageous.

To those of us who are old enough to remember early advertising about smoking, this is a familiar response.

The fact that smoking tobacco was associated with adverse health outcomes was known from the 1890s.

When science first raised doubts about the health consequences of smoking, the tobacco industry responded with advertising lines like “You’ve got nothing to lose but your smoker’s cough”.

In the early 1950s an English study showed a clear link between smoking and lung cancer, although it could not predict that a given individual who smoked would certainly get cancer: the likelihood increased, but it was not a certainty.

On 11 January, 1964, the U.S. Surgeon General‘s Report on Smoking and Health was published; it led millions of American smokers to quit, and it resulted in certain advertising being banned.

Cigarette advertising was banned progressively over the following 40 years.  Australia slowly followed, so that many types of tobacco advertising are no longer legal in Australia.

In short, the known ill-effects of smoking were resisted (or doubted, or denied) for a very long time, because there was good money in pretending the truth lay elsewhere; and the effect of smoking on any given individual was almost certainly a long way in the future and impossible to predict with any confidence.  The parallel with Climate Change is obvious.

For most people, the idea that our planet will become impossible for human life is nearly impossible to accept.  Denying the possibility is easy and comforting.  Not one of us would like to think that the quality of our lifestyle will cost a future generation the possibility of continued existence.  If the science was plainer, or more definite, or more precisely predictable, it is likely that our response (as a species) would lie somewhere between our recent response to Covid-19 and our current attitude to smoking.

The human rights implications of Climate Change are profound, and obvious.  The rich, lucky countries have got richer and luckier, while the whole world pays the price.  Those of us who live in New World countries enjoy the benefits of the consumption of fossil fuels: in the USA there are 838 motor cars for every thousand people in the population; in Australia, there are 790 motor cars for every thousand people in the population.  But our avoidable production of Greenhouse gases has an impact in every country, and on all the oceans.

It is tragic that concern about Climate Change and Greenhouse gas emissions has become so mired in politics and commerce and blind optimism.

 

Are We There Yet?

I’m a bit late posting this: just came across it again.  it’s the Barry Jones Oration I gave in 2013.

Are We There Yet?  

It is a great privilege to be giving a talk in honour of Barry Jones.

Like many others, I first became aware of Barry when he was an apparently permanent fixture on Pick-a-Box. Most of us remember that he often tangled with Bob Dyer and quibbled about the expected answer, most famously when he was asked who the first British Governor-General of India was. He gave the expected answer, Warren Hastings, but then pointed out that, strictly, Hastings was only the Governor of Bengal. The first Governor-General of India was Lord William Bentinck.

But what distinguished Barry’s participation in Pick-a-Box was a disconnect between his purposes and Bob Dyer’s purposes. For Bob Dyer, the show was all about competing for material reward; for Barry it seemed to spring from a genuine interest in knowing things. I will never forget how excited I found it to see a person who knew so much about so much.

His extraordinary run on that show started in 1960 and ended in 1968. Viewed from the present, that may not seem such a long time but, to orient it to my own life, it began when I was in year 6 and ended when I was in my second year at Monash University. I did not imagine then that I would later be able to count him as a friend.

No-one who lived through those years could forget the mark Barry made in his mighty struggle to save Ronald Ryan from the gallows. While Barry did not manage to save Ryan from the crazed vindictiveness of Henry Bolte, he won the larger fight: although Ryan was eventually hanged, in February 1967, he was the last person to be executed in Australia.

Barry once predicted that one day there would be more computers than cars in Tasmania. He was ridiculed for this.

The received wisdom then was in line with what had been said for years by people who should have known:

  • In 1943, Thomas Watson, the chairman of IBM said: “I think there is a world market for maybe five computers.”
  • In 1957 the editor in charge of business books for Prentice Hall said: “I have traveled the length and breadth of this country and talked with the best people, and I can assure you that data processing is a fad that won’t last out the year.”
  • And 20 years later, in 1977, the president of Digital Equipment Corporation, Ken Olson, said: “There is no reason anyone would want a computer in their home.”

In this and many other things, Barry sees much further than any of us. It is no accident that he is the only Australian to be a Fellow of all four learned academies: the Australian Academy of Science; the Academy of Social Sciences in Australia, the Australian Academy of the Humanities and the Australian Academy of Technological Sciences and Engineering.

In 1962, when I was in year 8 at school and Barry was cleaning up all comers on Pick-a-Box, I discovered the writing of James Thurber. In particular, his Fables for our Time and Further Fables for our Time. These were little stories in the style of Aesop’s fables: short, simple stories which generally had small animals as the main protagonists and ended with an explicit moral.

Thurber’s reason for choosing that style was probably the same as Aesop’s: it meant he could write subversive things, but get under the radar of government censors. He wrote during the McCarthy era, when dissident thinking was even more dangerous and unwelcome in America than it is today.

In the last of his fables, Thurber tells of a lemming who, on his way home after a late night, stumbles, hits his head and, dazed, starts running towards the cliff. He accidentally starts a stampede. The other lemmings who follow him toward the cliff are no more certain why they are running than he is. They hurtle over the cliff, some shouting “We are saved” and others shouting “We are lost”.

The moral of the story was: “All men should strive to learn before they die, what they are running from, and to, and why”.

As a 12-year old I was greatly impressed by that moral. It has stood the test of time: I am still impressed by it, as the most unassailable single sentence of philosophical truth.

Thurber’s question shares a frontier with the question all children ask, as the miles roll tediously by: Are we there yet?

The answer depends on where you trying to go.

For human beings, we discover we are there just as we go over the cliff. At that moment it is a bit late to deal with Thurber’s question.

For Societies, Thurber’s question is just as important, but the cliff is a much more abstract idea. But every Society should ask: Are we there yet? Because asking that question focusses the mind on where we are trying to go.

Barry has a 17 year advantage on me, and his memory is far better stocked than mine. He would certainly have details which would illuminate the present landscape better than I can. But even with my more limited vision, it looks as though Australia has not worked out what it is running from, or to or why.

As a country, we are performing way below our potential. We have never been perfect. No country is. But I am old enough to remember how things were in the 1950s.

Post-war migration to Australia presented some interesting challenges for us.

I remember during the 1950’s hearing people of my parents’ generation talking about the DPs and dagos and wogs who were coming into the country. Old Australians complained that New Australians were too religious, they had too many kids, they didn’t learn English, they didn’t fit in. Their women dressed all in black from head to foot and their food was weird: coffee, with froth on the top. Spaghetti which didn’t come from a tin. And, heaven help us, they ate squid.

They challenged our view of ourselves.

What I did not notice at the time was that, by small degrees, those same people began to adopt some of our ways, and we began to adopt some of theirs. It became smart and fashionable to eat at Italian and Greek restaurants.

The stereotypes of the 1950s faded, and our fear of wogs and dagos evaporated.

One way or another, things seemed to work out fairly well. Bit by bit the White Australia policy was dismantled. In 1967 we overwhelmingly supported a referendum to recognize Aboriginal Australians as part of the human population of the country which we had colonized in 1788.

The Pill and the Swinging Sixties did not spell the end of civilization.

Despite the direst predictions, it turned out that 6 o’clock closing was not essential to the good functioning of Society.

And some time in the 1960s the divide between Catholics and Protestants – something which had broken families in the past – faded away.

In the late 1970s there was another wave of new faces, this time refugees who had fled Vietnam and Cambodia. Fraser persuaded Whitlam that we should let Vietnamese boat people come to Australia. A lot came: about 25,000 a year for a few years. Fraser said we had been part of the problem and we had to be part of the solution.

The problem was brought to us in terrible images and in real time. For the first time in the history of human conflict, we saw events as they unfolded. Previously, we had to wait until the hostilities ended before we got the pictures. We only learned of the concentration camps when allied troops conquered Germany and the world was exposed to the skeletons, living and dead, in Belsen and Auschwitz and Dachau and other places, and suddenly we understood what the Jewish refugees had been running from when we turned our backs on them at the Evian conference in 1938.

But the Vietnam war came to us each night on the TV news. And newspapers showed us the appalling image of a Buddhist monk who set himself on fire in 1963; and by another photograph of a police chief blowing a man’s brains out in the street.

Later, a photograph of a naked child running, terrified, from her burning village. And images of vast areas devastated by napalm.

It was to Fraser’s credit that he persuaded Whitlam not to make a fuss about the arrival of refugees from Vietnam and Cambodia.

We took another small step forward in 1992, when the High Court departed from centuries of learning and held that Australia had not been terra nullius in 1788: that Aborigines had been here as the owners of the land when white settlers arrived. Rai Gaita illuminated the significance of the Mabo decision when he explained the thinking which had supported the doctrine of terra nullius for so long:

“We love, but they ‘love’; we grieve, but they ‘grieve’; and of course we may be dispossessed, but they are ‘dispossessed’. That is why, as Justice Brennan said, racists are able ‘utterly to disregard’ the sufferings of their victims. If they are to see the evil they do, they must first find it intelligible that their victims had inner lives of the kind which enable the wrongs they suffer to go deep”.

So far, so good. As a Society, Australia had come to grips with a lot of contentious issues. It hadn’t been perfect, but it was not bad. And we knew that the idea of a fair go was in our DNA: it was not just a marketing idea.

But in 1998, something important and fundamental started to shift. Or perhaps that is just when I began to pay attention. By chance I was briefed to act for the Maritime Union of Australia in what turned out to be a fairly contentious case.

Patricks was one of the two big stevedoring operations in Australia. They were caught out training an alternative, non-union workforce in Dubai and never offered a convincing explanation.

Early in 1998, rumours began to circulate that Patricks were about to do something drastic. As the weeks went by, the rumour firmed into a suggestion that Patricks were about to dismiss the entire unionized workforce on the Australian waterfront. Rumours are not evidence and so there was not much to work with. Innocent of any knowledge about the Workplace Relations Act, I asked what would happen if Patricks acted as the rumour suggested.

Those in the team, who were cleverer and better informed than I was, told me that the workforce would be reinstated, because of the provisions of the Workplace Relations Act. I asked innocently if there were any exceptions to that. They said that the only exception was if Patricks were going out of the business of stevedoring. Well, if they were to go out of the business of stevedoring, Patricks would have to sell their assets, so I suggested that we should write to Mr Corrigan asking for an undertaking not to dispose of Patricks’ assets and not to dismiss the workforce. If he did not give the undertaking sought, then his refusal would provide the evidence we needed.

He treated the request dismissively. He did not give the undertaking. We prepared a motion for injunctions, returnable on the Wednesday before Good Friday. The motion simply sought an order restraining Patricks from disposing of its assets or sacking its workforce.

On Wednesday morning, 8th April 1998, Australia woke to headlines saying that the entire workforce of Patrick Stevedores had been dismissed and had been replaced by an alternative, non-unionized workforce. When I arrived in court, Counsel for Patricks told me that administrators had been appointed to Patrick Stevedores. This was a surprising turn of events. My time practising as a commercial junior in the 1970s and 1980s made me think immediately of Bottom of the Harbour schemes. I thought that probably the court would be unimpressed by Patricks acting precipitately and doing the very thing which the court had been asked to restrain.

The Judge granted a holding injunction and directed that the matter should come back for further argument after Easter. Patricks were required to provide us with all relevant documents showing what had gone on. The picture revealed by those documents was truly astounding.

The previous year, in September 1997, the assets of the main stevedoring companies had been sold to new companies and the resulting credit balances were sent upstream to a holding company. The companies which had always employed the workforce – apparently large and successful stevedoring companies – were left with two assets only: their workforce, and contracts to provide the workforce to the new owners of the assets. These labour hire contracts were, in effect, terminable at will by the company with the assets. The employees had no job security whatever and no means of knowing the fact.

The effective result of this arrangement was that the labour hire company could be jettisoned without harming the enterprise. This made it possible to dismiss the entire workforce in a single stroke. On the ground, nothing at all had changed: Patrick Stevedores still had the appearance of prosperity which it had enjoyed for many decades, but it was a mere shell. The workers were hostage to a corporate shadow, and a CEO with secret plan.

The only party bound to gain from this strategy was the company which owned the assets. The only people bound to lose were the employees. As it happened, an obliging Federal Government had agreed in advance to provide the labour hire company with enough cash to pay the accrued entitlements of the employees when the workforce was sacked en masse. Thus the risks associated with the stevedoring venture were transferred to the workers and underwritten by a Government enthusiastic for waterfront reform at any price.

The case ran at an astonishing pace. We resumed argument before Justice North on the 15th April. The argument ran for three days. On the 21st April, Justice North delivered his Judgment and granted injunctions pending trial. At 3 o’clock that afternoon the Full Federal Court convened. They ordered a stay of Justice North’s orders pending appeal.

The Full Court appeal began the next day, 22nd April and ran over to the 23rd April. At 7 o’clock that night the Full Court gave judgment, upholding the order of Justice North. At 10 pm Justice Hayne in the High Court granted a stay of the Full Court’s orders, pending an application for special leave to the High Court.

The following Monday, 27th April, the seven judges of the High Court convened in Canberra and began hearing Patrick Stevedores’ application for special leave to appeal from the Full Federal Court’s orders. The application ran until the afternoon of Thursday, 30th April.

The following Tuesday, 4th May 1998, the High Court delivered judgments upholding the judgment of Justice North. The process of going from Judge at first instance to appeal to a final hearing by 7 judges of the High Court took three weeks. Ordinarily it would take between three and five years.

For me at least it was a shock to learn that any Australian government would conspire to break its own laws in an attempt to break the union movement: it’s not how patrician blue-bloods are meant to behave. But the Coalition government argued all the way to the High Court that it was OK. They lost.

Then things got worse.

Since the Russians had left Afghanistan, the Taliban had escalated their attacks on the Hazara minority. Millions of Hazara fled Afghanistan. A few thousand reached Australia.

In August 2001, the Palapa I was carrying 438 Hazaras towards Australia.

It began to sink. Australia asked the Norwegian cargo ship, the Tampa, to rescue them. But when it tried to put them ashore at Christmas Island, Australia sent the SAS to take command of the Tampa at gunpoint.

John Howard said the people rescued by Tampa would never set foot in Australia. He said any asylum seeker trying to get protection in Australia would be sent to Nauru: a tiny Pacific Republic with a population of 10,000 people and an area of just 21 square kilometers. He ordered that no humanizing images of the Hazara refugees were to be allowed.

Then September 11 happened. And the Liberal government headed into the 2001 election on the indecent slogan that “We will decide who comes to this country and the circumstances in which thy come”. Liberal propaganda called asylum seekers “illegals” and “queue-jumpers” and said that asylum seekers had thrown their children into the sea.

The Labor party said nothing to contradict the lies. The Liberals, it seemed, had turned into a party which was prepared to lie to the electorate, and gain popularity by mistreating the most helpless people in the world.

For the next few years the cruelty and dishonesty continued. Asylum seekers, innocent of any offence, were held in detention for years until they collapsed into hopelessness and despair.

A little girl, ten years old, held in detention in Melbourne, hung herself.

A little boy, eight years old, held in detention in South Australia, slashed his arms with razor wire.

A man who had been in detention for five years cut himself so often he had ten meters of scarring on his body, but the government insisted that the only treatment he needed was solitary confinement and Panadol.

The Liberal government argued all the way to the High Court that a man who had not committed any offence and was not seen as a risk to anyone, who had been refused a visa but could not be removed from Australia because he was stateless, that this man could remain in detention for the rest of his life.

What was shocking was not only that the government won, but that a Liberal government was prepared to make the argument in the first place.

The Immigration Department held Cornelia Rau in detention for more than a year, in wretched, degrading conditions. She was filmed as she was dragged, naked and protesting, from her cell in Baxter detention centre, being manhandled by a group of guards.

Eventually the Department discovered that she had a visa and was entitled, all along, to be in Australia. It paid her a huge sum in compensation for the brutality and humiliation she had suffered.

We deported Vivian Alvarez-Solon from Australia and dumped her in the Philippines. The Department then realised that she was legally entitled to be in Australia: but it ignored that fact and did nothing to correct its mistake for the next two years.

We ignored the fact that David Hicks was being held and tortured in Guantanamo Bay by our allies, the USA. The Americans told him that, even if he was charged and found not guilty, he would not be released from Guantanamo. We knew this.

Hicks was held without charge for five years and the Australian government did nothing to help him. The Howard government eventually interceded on his behalf when public opinion swung in his favour, and Howard saw that there was an advantage to be had from helping him.

Then Kevin Rudd became leader of the Labor party and won government in late 2007. He promised a better, more humane, policy concerning refugees. And he delivered it.

But then Tony Abbott became leader of the party which still called itself Liberal.

He re-started the anti-refugee rhetoric. Rudd responded by attacking people smugglers. He called them “vermin” and the “vilest form of human life”. He seems to have forgotten that his moral hero, Dietrich Bonnhoeffer, was also a people smuggler.

The attack on people smugglers was ham-fisted at best, and hypocritical at worst. For a start, it lumped all people smugglers into one irredeemable moral group: they were the “scum of the earth”. When today’s refugees wash up on our shores, Abbott and Morrison speak with concern about the boat people who die in their attempt to get to safety, but their concern is utterly false. Instead of attacking the refugees directly, which is their real purpose, they attack the people smugglers instead.

Because, aren’t people smugglers the worst people imaginable? We overlook the fact that Oskar Schindler was a people smuggler, and so was Gustav Schroeder, captain of the ill-fated MS St Louis which left Hamburg in May 1939 with a cargo of 900 Jews looking for help. He tried every trick in the book to land them somewhere safe, but was pushed away. He ended up putting them ashore again in Antwerp, and more than half of them perished in concentration camps.

We also overlook the fact that, without the help of people smugglers, refugees are left to face persecution or death at the hands of whatever tyranny threatens them.

Many recent boat people are Hazaras from Afghanistan. They are targeted ruthlessly by the Taliban, who are bent on ethnic cleansing. The Hazara population of Afghanistan has halved over the past decade, as Hazaras escape or are killed. The Taliban want to get rid of all of them. We have overlooked, it seems, that we are locked in mortal combat with the Taliban; and that my enemy’s enemy is probably my friend.

For a couple more elections and a couple more fractured administrations, things kept sliding to the right. It is a striking fact that the Labor party’s stance on refugees is well to the right of John Madigan – a DLP Senator.

The Pacific Solution was begun by Howard’s Liberal government in 2001, it was abolished by Rudd’s Labor government in 2008, and it was re-started by Gillard’s Labor government in 2012. In 2013, Rudd topped it with the PNG Arrangement.

Then in 2013 we had an awful election campaign in which Rudd and Abbott competed with each other in their promises to mistreat asylum seekers. It’s tempting to think that if Pauline Hanson had been asked to help Rudd, she might have been concerned that he was too far to the right for her taste.

The Liberal won the election. Australia lost.

The Labor party lost a lot of talent when half its front bench followed Gillard out the door.

The Liberals quickly showed their true colours when we learned that senior members of the new government had been rorting their parliamentary expenses. That was no surprise: but it was interesting to see that the new Attorney-General was involved. Haughty, supercilious, self-righteous George Brandis had elbowed his way to the trough with the best of them.

After all wasn’t Brandis the one who had ferociously attacked Peter Slipper for visiting a winery and charging the taxi ride to the Commonwealth? Brandis went to a friend’s wedding and billed the Commonwealth $1600. When he was found out two years later, Brandis repaid the $1600 but said he had done nothing wrong.

Peter Slipper is still facing criminal charges for much less.

And Tony Abbott has billed the Commonwealth for every fun-run and lycra cycle-fest, not to mention his Tamworth photo opportunity which apparently cost us about ten grand. Over the last couple of years he has had his hands in our pockets for about $3 million.

Just last week, Scott Morrison issued a directive to Immigration Department staff that boat people were to be referred to as “Illegal Maritime Arrivals”. Calling boat people “illegals” is now official Coalition policy, it seems.

It is a lie.

Scott Morrison and Tony Abbott know it is a lie.

But they lie to us deliberately, in order to dehumanize asylum seekers. That way they can mistreat asylum seekers and gain political advantage from doing so.

What is striking about the “illegals” lie is that Abbott and Morrison, and others in Cabinet, claim to be devout Christians.

But with their stealing from us, and lying to us and their claim to Christian belief smells like hypocrisy.

Since very recently, people held in our detention centres are again being addressed by use of their camp number, rather than by name. There are 1700 children in detention – innocent children, jailed indefinitely. Ostensibly for our protection. It is monstrous.

So here’s the problem.

By 1998, we had stopped running from our fear of foreigners and our fear of Communism; we had come to enjoy the idea that the world saw us as part Crocodile Dundee, and part Jack Thompson; part Kath and Kim, and part Edna Everage.

It’s a strange mix, but kind of endearing. It was a good place to be.

Now, we have a hard right-wing Liberal government, led by dishonest, self-seeking hypocrites.

Now, we have a weakened, right wing Labor opposition.

Now, we believe it is good policy to mistreat people who are escaping persecution.

Now, we are a country which is seen overseas as selfish, greedy and cruel and we have no political leadership at all.

We are well into the process of redefining Australia and what it is to be Australian. Most of us have not noticed because, for most of us, life is good. But a surprising number of people have admitted to me that they are ashamed to be Australian.

The sight of the major parties competing in their promises of greater cruelty to boat people was new in Australian politics. We have never been perfect, but this was something without precedent.

It is painful to recognize that we are now a country which would brutalize one group in the hope that other people in distress will choose not to ask us for help.

What are we running from? No one can say.

It’s not hard to see what we might be running to: but why?

The new path we are on has plenty of precedents in history. We know what can happen when governments conspire to break their own laws. We know what can happen when a Society thinks it is acceptable to see one group as less human than the rest, and use that as an excuse to mistreat them. We know what can happen when governments start stealing from the people and lying to them.

We know where those paths lead.

Are we there yet? Not yet. Not quite.

It is not too late to turn back.

Julian Burnside

Domestic and family abuse

An essay by Sarah Ruby

Domestic and family abuse is currently at the forefront of our national discourse, due to the horrifying murder of a Brisbane mother and her three beautiful children, by a man who decided that if they weren’t going to live ‘his way’, they had no right to live.

As a survivor of domestic abuse, I know I was only one of thousands of women around Australia who watched the aftermath of the attack with that sinking feeling in our stomachs, the familiar internal refrain of “that could have been me”- or, for some of us, “that could be me one day”. I certainly never expected to live to see 2020.

There is something frightening, impossible to prevent, and without and end-date happening in communities around Australia. The victims are men, women and children. They are hidden from sight, intimidated into silence, afraid of the consequences if they speak out. I’ve witnessed one such threat personally.

Therefore, with the freedom I have to do so, I believe it is necessary for me to inform the Australian public of this fact- the men, women and children in immigration detention in this country, and their friends and family, are being subjected to domestic abuse. The perpetrator is the Honourable Minister for the Department of Home Affairs, Peter Dutton.

Allow me to tell you what I’m watching unfold, from the perceptive of a domestic abuse survivor- men and women who have left situations of domestic abuse can usually, at some point in the future, identify the key elements that define the situation as abusive. In my case, that took years of therapy. Hopefully I can save you that time.

Emotional abuse- being belittled, dehumanised, being told at every turn that what you’re doing is wrong, that you’re a bad person or a bad parent, name-calling.

Financial abuse- having your access to money restricted, not being allowed to work or study, having your spending examined and essential items withheld from you.

Physical abuse- including, but not limited to, assault.

Sexual abuse- including, but not limited to, sexual assault.

Restriction of movement- being told where you’re allowed to go, and when. Having a curfew. Being isolated from family and friends.

Medical abuse and reproductive coercion- not being allowed to keep your medical visits or records private, being denied medical treatment, being denied contraception.

Gaslighting- blaming complaints about the above on your ‘mental health issues’, telling other people you’re unstable or that you’ve harmed your children, in order to isolate you from anyone who might support you.

Let’s examine how these play out in Immigration Detention.

Firstly, it needs to be said- the ‘kids off Nauru’ campaign was successful, but the vast majority of these children are now living in Community Detention.

In both custodial and community detention scenarios, the abuse criteria play out as follows:

Emotional abuse – parents are told by Australian Border Force caseworkers and Immigration staff that they’re ‘bad parents’ for bringing their children to Australia. The children are told that their parents made a mistake in bringing them to Australia, that this will never be their home, and that they have no future here. I witnessed one speaker-phone call with a minor in which an Australian Border Force caseworker told her that if she continued to complain about her unsuitable accommodation (strange men were frequently at the home, on one occasion under the influence, because the owner was allowing it- I physically removed a drunk man from their backyard), ‘the Minister might reconsider his generosity in allowing you to live in the community’. This was a threat to put the child back into Villawood Immigration Detention Centre, and I immediately cut the call.

Financial abuse – nobody in detention is allowed to work. Families in Community Detention rely on food banks and charities in order to survive. When rotting fruit and vegetables are all that can be procured, mothers cut the rotten bits off, and freeze them. Once teenagers turn eighteen, they are no longer allowed to study in any form. Young women whose mothers fled their country of origin so that they can receive a tertiary education are relegated to sitting at home, unable to work or study.

Physical abuse – Beatings from guards in detention are common, and have always been. Beatings from other detainees are a risk, some claim at the behest of the guards. What you won’t know, however, is that refugee children were beaten on Nauru by locals. One boy I know, as a ten year old, was badly beaten by an adult Nauruan man for trying to assist a child half his age who was also being beaten.

Sexual abuse – for some detention guards, sexual assault is a game. They target Muslim men during pat downs, then laugh, knowing homosexual activity is considered ‘haram’; I don’t know a single detained woman who wants to fall pregnant. Everyone identifies as too traumatised to care for a newborn.

An Australian Citizen is being repeatedly hospitalised against her will because her carer, her partner, has been detained. His detention has been officially declared arbitrary (yet in 2019, a man who murdered his wife walked free from Immigration Detention).

Gaslighting: You’ve all seen the claims of ‘asylum seekers being coached to self-harm by advocates’, ‘parents harming their children to come to Australia’. Not a shred of evidence has ever been offered, or found, to support these claims. After two years of searching extensively for proof of these claims from the Government, my only findings are:

children being bullied at school due to the stigma of having been a refugee on Nauru – bullied not only by students, but by teachers, and parents of other children.

I witnessed a speaker-phone call between a caseworker and teenage boy, where the boy was refusing to sleep in his allocated granny flat because the men in the house at the front had repeatedly accosted him, his mother, their friends, and threatened to shoot him – the caseworker told him that he couldn’t sleep in a car because ‘there could be snakes’. My own son is the same age – 16; if I forced him into an unsafe living situation, with an active threat of violence, I would be rightly investigated by Family and Children’s Services.

I wish I didn’t know any of this. I wish I could go all ‘Eternal Sunshine of the Spotless Mind’ and erase what I’ve seen over the past five years. The reality is, I cannot.

We are taught as a society to speak up when we see domestic abuse being perpetrated. As a survivor, I strongly believe this principle must be upheld.

So, Australia, I must inform you: in my opinion, from both lived experience and what I’ve witnessed, the biggest perpetrator of domestic abuse against men, women and children, is your elected Minister for Home Affairs, Peter Dutton.

What will you do about it?

 

An Alternative to Being Cruel to Refugees

At the time of the Tampa episode in 2001, Australia introduced a system of sending boat people to other countries for processing.  “Offshore processing” does not quite capture what this involves. In fact, boat people who arrive in Australia and seek asylum are forcibly evicted from Australia and have their asylum claims processed in that other country: but it is now made clear to them that those who are found to be refugees will not be resettled in Australia.  That point was made to them in 2013 very forcefully by then-Immigration Minister Scott Morrison, as an illustration of his decidedly un-Christian attitude to people who have fled persecution.

It is significant that the two places which have been chosen for this role are Nauru and Manus Island.  Nauru is a Pacific Island republic.  Its land area is a total of 21 square kilometers (It is smaller than Tullamarine Airport!).  It has a population of 10,000 people.  It does not have an adequate supply of food or water for its own people.  Manus Island is part of Papua New Guinea. It is a small island north of Port Moresby. The area of Manus Island is about 2100 square kilometres; its population is about 55,000 people.  It is mountainous and covered in jungle.

So that the size of these places makes sense, you could fit two instances of Manus Island into the Greater Melbourne area.  Nauru would fit into the Greater Melbourne area about 260 times over.  Conditions in Manus and Nauru are harsh.  Their use was heralded as part of a policy of deterrence, so the harshness is intentional.  The idea of deterrence is that, faced with the choice of facing persecution at home, or the risk of drowning followed by the harshness of Manus or Nauru, would-be asylum seekers will prefer to face the Taliban or the genocidal regime in Sri Lanka rather than head to Australia. It may not be our vision of ourselves that we look nastier than the Taliban, but that is the logic of deterrence.

The Pacific Solution costs us about 5000 million dollars a year. Shut it down once and for all.  Assume the boats will start arriving again (It is far from certain, but assume it).

I do not advocate an open borders policy.  Initial detention for people who arrive without papers is not difficult to justify.  But it should be limited to one month, and should be used for preliminary health and security checks.  After that, release them on interim visas with four crucial conditions:

  • they are allowed to work or study;
  • they are allowed full access to Centrelink and Medicare benefits;
  • they must stay in regular touch with the Department until their refugee status has been determined (for example, they could check in at a Post Office once a week);
  • they are required to live in a specified regional town or city until their refugee status has been determined.

There are plenty of country towns which are slowly shrinking as people leave. The National Farmers Federation estimates that there are 96,000 unfilled jobs in country areas.  It is highly likely that many asylum seekers would get jobs.

How this would work can be tested by making some assumptions.

First: numbers.  The arrival rate of boat people tracks parallel to the global movement of refugees: we aren’t a magnet, we get just a tiny percentage of refugees who are on the move.  The biggest arrival rate of boat people was in 2012, when nearly 25,000 boat people arrived.  (For comparison, the annual migration intake – people who are not refugees but move to Australia – is about 200,000 people per year).

Let us assume that 25,000 boat people arrive in Australia every year, and let us assume that all of them stay on full Centrelink benefits.

These are both highly unlikely assumptions.

It would cost us about $500 million a year.  All that money would be spent in the economies of regional towns. It is not difficult to see the benefits to the economy of regional towns and cities which are slowly losing population to the capitals.  And we would save about 4.5 thousand million tax-payer dollars each year.  And we would

In short, if we could persuade Scott Morrison and Peter Dutton to adopt a truly Christian approach to other human beings, we could be doing good for refugees and for regional Australia, instead of intentionally harming innocent people.

And isn’t Australia supposed to value the idea of a fair go for everyone??

 

The Stolen Generations

Bruce Trevorrow

Bruce Trevorrow was the illegitimate son of Joe Trevorrow and Thora Lampard.  He was born in November 1956.  They lived at One Mile Camp, Meningie, on the Coorong.  They had two other sons, Tom and George Trevorrow.

They lived at One Mile Camp because, in the 1950s, it was not lawful for an aborigine to live closer than one mile to a place of white settlement, unless they had a permit.

When Bruce was 13 months old, he got gastroenteritis.  Joe didn’t have a car capable of taking Bruce to the hospital, so some neighbours from Meningie took him to the Adelaide Children’s Hospital where he was admitted on Christmas Day 1957.  Hospital records show that he was diagnosed with gastroenteritis, he was treated appropriately and the gastro resolved within six or seven days.  Seven days after that he was given away to a white family: Mr & Mrs Davies.

The Davies lived in suburban Adelaide.  They had a daughter who was about 16 at the time.  She gave evidence at the trial as a woman in her late middle age.  She remembered the day clearly.  Her mother had always wanted a second daughter.  They had seen an advertisement in the local newspaper offering aboriginal babies for fostering.  They went to the hospital and looked at a number of eligible babies and saw a cute little girl with curly hair and chose her.  They took her home and, when they changed her nappy, they discovered she was a boy.  That’s how Bruce Trevorrow was given away in early January, 1958.

A short time later Bruce’s mother, down at One Mile Camp Meningie, wrote to the Department asking how Bruce was doing and when he was coming home.  The magnitude of her task should not be overlooked:  pen and paper, envelope and stamp were not items readily obtained in the tin and sackcloth humpies of One Mile Camp, Meningie.  But Thora managed to write her letter, and it still exists in the South Australian State archives.  The reply is still in existence.  It notes that Bruce is doing quite well but that the doctors say he is not yet well enough to come home.  Bruce had been given away weeks earlier.

In South Australia in the 1950s, the laws relating to fostering required that foster mothers be assessed for suitability and that the foster child and foster home should be inspected regularly.  Although the laws did not distinguish between white children and aboriginal children, the fact is that Bruce’s foster family was never checked for suitability and neither was he checked by the Department to assess his progress.  He came to the attention of the Children’s Hospital again when he was three years old:  he was pulling his own hair out.  When he was eight or nine years old, he was seen a number of times by the Child Guidance Clinic and was diagnosed as profoundly anxious and depressed and as having no sense of his own identity.

Nothing had been done to prepare the foster family for the challenges associated with fostering a young aboriginal child.  When Bruce was 10 years old, he met Thora, his natural mother, for the first time.  Although the Department had previously prevented his mother from finding out where Bruce was, the law had changed in the meantime and they could no longer prevent the mother from seeing him.

The initial meeting interested Bruce and he was later to be sent down to stay with his natural family for a short holiday.  When the welfare worker put him on the bus to send him down to Victor Harbour, the foster mother said that she couldn’t cope with him and did not want him back.  His clothes and toys were posted on after him.

Nothing had been done to prepare Bruce or his natural family for the realities of meeting again after nine years.  Things went badly.  Bruce tried to walk from Victor Harbour back to Adelaide (about 80 kilometers) to find the only family he knew.  He was picked up by the police and ended up spending the next six or eight years of his life in State care.  By the time he left State care at age 18, he was an alcoholic.  The next 30 years of his life were characteristic of someone who is profoundly depressed and who uses alcohol as a way of shielding himself from life’s realities.  He has had regular bouts of unemployment and a number of convictions for low-level criminal offences.  Every time he has been assessed by a psychiatrist, the diagnosis has been the same:  anxiety, profound depression, no sense of identity and no sense of belonging anywhere.

Bruce was the Plaintiff in a major action against the State of South Australia.  The trial ran for many weeks, in 2005 and 2006.

The trial had many striking features.  One was the astonishing difference between Bruce – profoundly damaged, depressed and broken – and his brothers, who had not been removed.  They told of growing up with Joe Trevorrow, who taught them how to track and hunt, how to use plants for medicine, how to fish.  He impressed on them the need for proper schooling.  They spoke of growing up in physically wretched circumstances, but loved and valued and supported.  They presented as strong, resilient, resourceful people.  Their arrival to give evidence at the trial was delayed because they had been overseas attending an international meeting concerning the repatriation of indigenous remains.

The second striking feature was the fact that the Government of South Australia contested every point in the case.  Nothing was too small to pass unchallenged.  One of their big points was to assert that removing a child from his or her parents did no harm – they even ventured to suggest that removal had been beneficial for Bruce.  This contest led to one of the most significant findings in the case.  Justice Gray said in his judgment:

“[885]   I find that it was reasonably foreseeable that the separation of a 13 month old Aboriginal child from his natural mother and family and the placement of that child in a non-indigenous family for long-term fostering created real risks to the child’s health.  The State through its emanations, departments and departmental officers either foresaw these risks or ought to have foreseen these risks. …  ”

That finding was not only supported by evidence, it also accords with common sense.  We all have an instinct that it is harmful to children to remove them from their parents.  The finding was based on extensive evidence concerning the work of John Bowlby in the early 1950s, which showed that it is intrinsically harmful to remove a child from his or her parents, in particular when this occurs after nine months of age.

At the time Bruce was given away, the Aborigines Protection Board of South Australia had already been advised by the Crown Solicitor that it had no legal power to remove aboriginal children from their parents.  One of the documents tendered at the trial was a letter written by the secretary of the APB in 1958.  It read in part:

“…  Again in confidence, for some years without legal authority, the Board have taken charge of many aboriginal children, some are placed in Aboriginal Institutions, which by the way I very much dislike, and others are placed with foster parents, all at the cost of the Board.  At the present time I think there are approximately 300 children so placed. …”

After a hard-fought trial, the Judge found in Bruce’s favour, and awarded him a total of about $800,000.  The judgment, given on 1 August 2007, is here.

There are a few things to say about this.  First, Bruce’s circumstances are not unique.  There are, inevitably, other aboriginal men and women who were taken in equivalent circumstances while they were children and suffered as a result.  Although they may seek to vindicate their rights, the task becomes more difficult as each year passes.  Evidence degrades, witnesses die, documents disappear.

Second, litigation against a Government is not for the fainthearted.  Governments fight hard.  It took Bruce’s case eight years to get to court, and the trial ran for some months.  If he had lost the case, Bruce would have been ruined by an order to pay the Government’s legal costs.

Kevin Rudd’s Labor government was elected in late 2007.  The new parliament assembled in Canberra on 13 February 2008.  At that first sitting, the Government said ‘sorry’ to the stolen generations.  It seemed almost too good to be true:  the apology so many had waited so long to hear.  And it was astonishing and uplifting to hear some of the noblest and most dignified sentiments ever uttered in that place on the hill.  It is worth recalling some of the words:

“Today we honour the indigenous peoples of this land, the oldest continuing cultures in human history.

We reflect on their past mistreatment.

We reflect in particular on the mistreatment of those who were stolen generations – this blemished chapter in our nation’s history.  …

We apologise for the laws and policies of successive Parliaments and Governments that have inflicted profound grief, suffering and loss on these our fellow Australians.  …

For the pain, suffering and hurt of these stolen generations, their descendants and for their families left behind, we say ‘sorry’.

To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say ‘sorry’.

And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say ‘sorry’.  …

We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians.

A future where this Parliament resolves that the injustices of the past must never, never happen again.  …”

Kevin Rudd wanted to make sure there were Aboriginal people in the public gallery of the House of Representatives when he apologised to the Stolen Generations.  Tom and George Trevorrow were invited.  They had become leaders of the Ngarrindjerri community and they were internationally recognised as leaders. Bruce Trevorrow – then and still the only Aboriginal person to have been recognised by a court as having been taken unlawfully, and to have suffered as a consequence and to be awarded compensation – Bruce did not get an invitation.  The bureaucrats were reminded, and Bruce got a hurried, late invitation.  He got to Canberra for the apology, but died on 20 June that year, a few months short of his 52nd birthday.

13 February 2008 will be remembered as a day the nation shifted, perceptibly.  The apology was significant not only for marking a significant step in the process of reconciling ourselves with our past: it cast a new light on the former Howard government, which had refused to apologise to the Stolen Generations.  It set a new tone.  And it reminded us of something we had lost: a sense of decency.

Most of the worst aspects of the Howard years can be explained by the lack of decency which infected their approach to government.: not only in its attitude to Aboriginal people, but also in many other instances.  They could not acknowledge the wrong that was done to the Stolen Generations; they failed to help David Hicks when it was a moral imperative: they waited until his rescue became a political imperative; they never quite understood the wickedness of imprisoning children who were fleeing persecution; they abandoned ministerial responsibility; they attacked the courts scandalously but unblushing; they argued for the right to detain innocent people for life; they introduced laws which prevent fair trials; they bribed the impoverished Republic of Nauru to warehouse refugees for us.  It seemed that they did not understand just how badly they were behaving, or perhaps they just did not care.

One of the most compelling things about the apology to the stolen generations was that it was so decent.  Suddenly, a dreadful episode in our history was acknowledged for what it was. The Prime Minister’s apology makes no difference whatever to whether or not Governments face legal liability for removing aboriginal children.  But it acknowledges for the first time that a great moral wrong was done, and it acknowledges the damage which that caused.  The most elementary instinct for justice tells us that when harm is inflicted by acts which are morally wrong, then there is a moral, if not a legal, responsibility to answer for the damage caused.  To acknowledge the wrong and the damage and to deny compensation is simply unjust.

From that point, events could play out in a couple of different ways.  One possibility is that members of the stolen generations would bring legal proceedings in various jurisdictions.  Those proceedings would occupy lawyers and courts for years, and would run according to the circumstances of the case and the accident of which State or Territory was involved.  The worst outcome would be that some plaintiffs would end up the way Lorna Cubillo and Peter Gunner ended up a few years earlier:  crushed and humiliated.  Or they might succeed, as Bruce Trevorrow did.  Either way, it would be a very expensive exercise for the State, and a gruelling experience for the plaintiff.

A second possibility is a national compensation scheme, run by the States, Territories and the Commonwealth in co-operation.  The scheme I advocate would allow people to register their claim to be members of the stolen generations.  If that claim was, on its face, correct then they would be entitled to receive copies of all relevant Government records.  A panel would then assess which of the following categories best describe the claimant:

  • removed for demonstrably good welfare reasons;
  • removed with the informed consent of the parents;
  • removed without welfare justification but survived and flourished;
  • removed without welfare justification but did not flourish.

The first and second categories might receive nominal or no compensation.  The third category should receive modest compensation, say $5,000-$25,000, depending on circumstances.  The fourth category should receive substantial compensation, between say $25,000-$75,000, depending on circumstances.

The process could be simple, co-operative, lawyer-free and should run in a way consistent with its benevolent objectives.

If only the Governments of Australia could see their way clear to implement a scheme like this, the original owners of this land would receive real justice in compensation for one of the most wretched chapters in our history.

Until such a scheme is introduced, members of the stolen generations will have good reason to think that they have been denied justice.

5 November and the Gunpowder Plot

5 November 1605: The Gunpowder Plot

 

Those of us old enough to remember “Cracker Night” will associate it with the name of Guy Fawkes. Some might remember that Guy Fawkes’ name is synonymous with the Gunpowder Plot. Very few indeed will recognise that the Gunpowder Plot was the 17th Century equivalent of September 11.

It is a pity that the Gunpowder Plot has slipped from popular memory. It has striking parallels with contemporary events, both in its origins and in its consequences. Just a few years before the Gunpowder Plot, Francis Bacon wrote that “[h]istories make men wise …”. Our response to September 11 might have been wiser if only we had read history more carefully.

The last years of the reign of Elizabeth I were marked by increased persecution of Roman Catholics in England. Recusants were fined for not attending the Protestant churches, and the recusant fines had become a significant source of revenue. Catholic priests – especially Jesuits – were persecuted terribly, and many were put to death for their faith.

As Elizabeth’s health failed the question of succession had not been settled. Among the several possible candidates to succeed her was James VI of Scotland. He was Protestant, but the son of Mary Queen of Scots, the Catholic daughter of James V of Scotland. Mary had been put to death by Elizabeth in 1587. James was married to Anne of Denmark. She was born a Lutheran but had converted to Catholicism. This made James’ position on religion decidedly ambiguous.

Many high-placed Englishmen established contact with James in advance of Elizabeth’s death, in order to test the ground. Among these was Thomas Percy, a recusant and protégé of the Earl of Northumberland. He returned from Scotland with enthusiastic accounts of the religious toleration James would introduce. Sir Robert Cecil, the Queen’s trusted adviser, also ascertained that James was not inclined to persecute the Catholics so long as they “lived quietly”. Thus it was that, when James VI of Scotland succeeded as James I of England there was real hope that the time of religious persecution would end.

The hopes engendered by Thomas Percy’s account and James’ ambivalent correspondence were not realised. By 1605, things had become markedly worse and more anti-Catholic legislation was expected.
The Gunpowder Plot

Robert Catesby was the son of a rich Warwickshire family. He was 30 years old at the time of James’ coronation. His father had been persecuted under Elizabeth. He was intelligent, pious, conscientious and (by all accounts) charismatic. Frustrated by the absence of real reform, he conceived the idea of destroying at a single stroke the Royal family and the Parliament which had passed the harsh, anti-papist laws. For this purpose he proposed to blow-up the Parliament at its opening, when the Royal family would be present. In March 1604, he recruited Thomas Winter and John Wright. Others were drawn into the conspiracy. In May, Thomas Percy and Guido Fawkes joined.

In July 1604, new anti-Catholic legislation was passed by Parliament. In January 1605 John Grant, Robert Winter and Thomas Bates joined the plot; in September Sir Everard Digby, Ambrose Rookwood and Francis Tresham joined.

Apart from the folly of the entire enterprise, it was probably the introduction of Francis Tresham which brought the plot down. The conspirators had arranged to store 36 barrels of gunpowder in an apartment adjacent to the Hall of Parliament. The recall of Parliament had been postponed several times, but was eventually fixed for Tuesday, 5 November. Someone – apparently Francis Tresham – wrote a cryptic letter to Lord Monteagle, advising him to absent himself from the opening of Parliament. Monteagle was a Roman Catholic, married to Tresham’s sister. But instead of heeding the warning, Monteagle took it to Robert Cecil. In due time, the Parliament building was searched, Guido Fawkes was discovered and the plot was undone.

Fawkes was taken into custody as the other conspirators fled from London. Under the law of the time, torture was illegal. However in exercise of the royal prerogative King James personally authorised the use of torture to discover the identity of the other conspirators. His letter of authority, dated 6 November 1605 reads in part:

“The gentler tortours are to be first used unto him et sic per gradus ad majora tenditur [and thus by degrees to the worst] and so God speed your goode worke”.

The gentler torture was the manacles: Fawkes was hung from a wall by iron manacles tightly bound around his wrist, with his feet above the ground. This has a physiological effect similar to crucifixion. The worst torture was the rack. This involved lying the victim on a horizontal frame and binding cords around his wrists and ankles. These cords were wound around rollers at each end of the frame. By use of winches, the rollers slowly wound in the cords, thus stretching the victim until the major joints came apart. It is accounted the most excruciating form of non-lethal treatment yet devised.

Under this treatment, Guido Fawkes made three confessions. The third bears a signature which hardly looks to be the work of a human hand: mute testimony to the effects of the rack.

Fawkes’ third confession led to the capture of the other conspirators. Catesby, Percy and Jack and Kit Wright were killed whilst being taken. Francis Tresham was badly wounded and died before he could be tried.

The Gunpowder Plot was the work of over-zealous extremists, isolated from their co-religionists. The Roman Catholic hierarchy in England had tried to dissuade any violence against the State. Nevertheless, when the conspirators were charged, the first name on the indictment was Father Henry Garnet, the Jesuit Superior of England. He was unquestionably innocent of the plot. But it was deemed important to pitch the Plot as a Catholic attack on England.

Those conspirators who had survived were tried on 27 January 1606 and were sentenced to be hung, drawn and quartered. Henry Garnet, who was not captured until later, was also brought to trial. His conviction was certainly unjustified, but reflects the public frenzy of anti-Catholicism which the plot had released. He was executed on 3rd May, 1606.
Divine right of kings

A key feature of the reign of James I was his belief in the divine right of Kings, and with it the unlimited scope of the sovereign prerogative. In his speech to Parliament on 21 March 1610 he said:

“Kings are justly called Gods for that they exercise a manner or resemblance of divine power upon earth. For if you will consider the attributes of God you shall see how they agree in the person of a King. God hath power to create or destroy; make or unmake at his pleasure; to give life or send death; to judge all and to be judged nor accountable to none; to raise low things and to make high things low at his pleasure. And the like power have Kings.”

(Note the echo of King Lear, written in 1605: “as flies to wanton boys are we to the Gods, they kill us for their sport”).

Even though torture was illegal in 1605, the King could order it in the exercise of the royal prerogative. Furthermore James I, and after him Charles I, insisted that the Royal prerogative entitled them to rule without Parliament and to act beyond the laws made by Parliament or to suspend those laws in particular cases as they chose. As the notion of parliamentary democracy took shape, two questions became an increasing source of tension: did the King rule under the law, or did he stand outside it; and if Parliament made a law, was the King free to dispense with it? This was one of the great constitutional questions which dominated 17th century England.

The Gunpowder conspirators had been prosecuted by Sir Edward Coke, the then Attorney-General. In his capacity as Attorney-General, Coke had been an advocate of the right of the King to dispense with the law as he saw fit. When Coke was appointed Chief Justice of the Court of Common Pleas, his views changed. He insisted that the King ruled under the law: in a famous confrontation with James I, Coke declared that “the King cannot change any part of the common law nor create any offence by proclamation which was not an offence before”.

Judicial independence was unknown in the time of James I. After many manoeuverings, James I dismissed Coke from his judicial office and Coke subsequently entered Parliament in 1620. In 1627 (the second year of the reign of Charles I) the King ordered the arrest of Sir Thomas Darnel and four others who had refused to advance a compulsory “loan” to the King. They sought habeas corpus. The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King].

Darnel’s case in 1627 prompted Coke to draft for Parliament the Petition of Right (1628). The Petition raised, with exquisite politeness, the following complaints about the King’s conduct:

he had been ordering people, like Darnel, to be jailed for failing to lend him money;
he had been billeting soldiers in private houses throughout the country against the wishes of the owners;
he had circumvented the common law by appointing commissioners to enforce martial laws and those commissioners had been summarily trying and executing “such soldiers or mariners or other desolate persons joining with them as should commit … (any) outrage or misdemeanour whatsoever …”;
he had been exempting some from the operation of the common law.

The Parliament prayed that the King “would be graciously pleased for the further comfort and safety of your people, to declare … that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm …”.
The emergence of the Rule of Law

The Petition of Right was the opening shot in the battle for the Rule of Law. The principle of the Rule of Law in a parliamentary democracy insists that the Parliament is the supreme lawmaker and that all people, including every member of the Government and the head of state, are subject to the law; it requires that the laws be enforced by independent judges appropriately skilled, enjoying security of tenure so as to free them from extraneous pressures.

The struggle for the Rule of Law was waged in various forms over the balance of the 17th Century. Charles I prorogued the Parliament which had presented the Petition of Right. He ruled without Parliament until 1640 and then called the Short Parliament which refused to grant supply and was dissolved. He called the Long Parliament in November 1640 which confronted the King and declared it illegal to levy tax without the authority of Parliament.

The power struggle between Charles I and Parliament led to the Civil War (1642-1649) which ended with the surrender and execution of Charles I. It was followed by the Commonwealth period under Cromwell. That experiment collapsed after increasing mismanagement, and Charles II was restored to the throne, but only after issuing a promise (the Declaration of Breda) that he would meet the demands articulated in the Petition of Right 22 years earlier.

After Charles II came the truncated reign of James II and then in 1688 William of Orange and his wife Mary (daughter of King James) were offered the English crown and with it they were offered a Declaration of Rights prepared by the Parliament. This required regular, fair elections, protection of Parliamentary debates, no tax without Parliamentary consent, and the King was not to suspend or dispense with laws properly passed by the Parliament. They agreed.

Later, the Act of Settlement declared the sovereign to reign subject to the law. In the meantime, the Habeas Corpus Act had been passed, which ensured that no person could be held except by the authority of laws duly passed by the Parliament.

Thus were all the central principles of the Rule of Law put in place: the monarch is subject to the law and cannot set aside the common law or the laws passed by the Parliament; Judges are independent of the executive; no-one can be detained except as provided by law and the legality of their detention can be tested by the writ of habeas corpus.

These principles were won in the great constitutional struggles of 17th Century England. The chain of events which led to these momentous changes can be traced back to 1605 when those perceived as dangerous religious fanatics could be put to the torture on the authority of the King acting outside the law.

This tectonic shift was reflected in John Locke’s Second Treatise on Government. Published in 1689, it demolished the theory of the divine right of kings, and proposed that the only true authority of the government came from the consent of the governed. In addition, Locke reasoned that the obligation to obey the laws of the state was conditional on the state protecting person and property, and that if the sovereign breached the terms of the Social Contract, he could be overthrown.
America and the Rule of Law

Echoes of the Petition of Right and the Act of Settlement can be found in the constitutional documents of the United States. The American colonists expressly adopted Locke’s reasoning in their preamble to the Declaration of Independence:

In Congress, July 4, 1776

The Unanimous Declaration of the Thirteen United States of America

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.–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.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. …

The US Constitution (1789), especially the Bill of Rights, adopts the principles first demanded in the Petition of Right 160 years earlier. From the beginning, the United States of America adopted the Rule of Law as fundamental and unchangeable. But in the aftermath of September 11, it all went badly wrong.

The attack on America created, or brought into sharp focus, another form of religious animosity: not between Protestants and Catholics, but between Christians and Muslims. Like the Gunpowder Plot, September 11 was an attack of unprecedented horror, the likes of which could not have been imagined. Like the Gunpowder Plot, it was the work of a small group of religious fanatics striking at the very heart of a group seen as a religious oppressor. But there are two obvious differences: the Gunpowder Plot failed, but it set in train the events which ultimately laid the foundations of the Rule of Law in a parliamentary democracy; September 11 succeeded, and set in train events which are undermining those very foundations.

In the aftermath of September 11, America raided Afghanistan in pursuit of al Quaeda. With the help of Northern Alliance troops, they swept up tens of thousands of supposed al Quaeda operatives and sympathizers. Suspects were captured in Afghanistan, Pakistan, Saudi Arabia, Iraq and other places.

As a matter of legal principle, combatants captured in Afghanistan during the hostilities there are Prisoners of War.Otherwise they are criminal suspects. Domestic and international laws deal comprehensively with both cases. There is no ground between the two possibilities.

The regime for treatment of Prisoners of War is clear: it is established by the Geneva Convention in relation to Prisoners of War, to which USA is a party. Relevantly, it provides for:

(a) humane treatment;

(b) no interrogation beyond name, rank and serial number;

(c) release at the end of hostilities

The regime for treatment of criminal suspects is also clear:

(a) humane treatment;

(b) no obligation to answer questions;

(c) no detention without charge;

(d) prima facie entitlement to bail when charged;

(e) (importantly in these circumstances) criminal charges are generally to be dealt with in the country where the offences occurred.

In either case, and in all circumstances, there is an absolute prohibition on the use of torture. This is recognised as a universal norm of international law, and is the subject of the Convention Against Torture to which most countries, including the USA and Afghanistan, are parties.

Unfortunately, there comes a time in the history of nations when, for some unaccountable reason, basic values and accepted principles are diluted, betrayed or cast aside. The pretext may be external threat, internal strife or other great forces which call for extraordinary responses. Faced with very clear legal limits, President Bush stepped back to the 17th Century and acted, in substance, as James I did. He acted as if he could set aside the law and implement his own conception of right. He did so with obliging help from Department of Justice employees.

Suspects who had been rounded up during the war in Afghanistan were taken to the US naval base at Guantanamo Bay, Cuba. There they are held in cages, and are interrogated, humiliated and tortured. They are denied proper legal help. The Bush administration has argued that the American Constitution, and the American courts, have no authority in Guantanamo: that it is a legal black hole.

The basic features of the regime at Guantanamo were founded on an enabling memo from Alberto Gonzales. He advised that President Bush could declare prisoners held at Guantanamo not to be amenable to the protections of the Geneva Convention relating to Treatment of Prisoners of War (the GPW). He identified several points in favour of this position:

“Positive:

· Preserves flexibility:

As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors …

Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).

That statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as “outrages against personal dignity”). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban. …”

The author of the memo is unmistakably urging a path which would facilitate torture of prisoners and protect the torturers from the inconvenience of criminal charges. The author of the memo is now US Attorney-General.

Six months later Mr Jay Bybee wrote another memo to President Bush, which in substances authorises mistreatment of al Quaeda suspects. This memorandum, the existence of which was denied for several years, contains the most startling and convoluted justification of torture imaginable. Its legal reasoning is profoundly flawed. The memo says:

“it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.”

It identifies seven techniques recognised as torture, including severe beatings, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a person to watch the torture of another. It then observes that:

“While we cannot say with certainty that acts falling short of these seven would not constitute torture, . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law…For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

Here are some first hand accounts of what has been happening at Guantanamo:

“every day we were stuck in a cage of 2 meters by 2 meters. We were allowed out for 2 minutes a week to have a shower and then returned to the cage. Given the extreme heat, we sweated a lot and the area obviously began to smell. During the day we were forced to sit in the cell (we couldn’t lie down) in total silence. We couldn’t lean on the wire fence or stand up and walk around the cage.”
“very often the guards would refuse to take us to the portaloo outside and therefore people started to use the buckets in the cells. Many of the people [were] … suffering from dysentery … and simply couldn’t wait until the guards decided they would take them to the toilet. … The smell in the cell block was terrible.”
“We had the impression that at the beginning things were not carefully planned but a point came at which you could notice things changing. That appeared to be after General Miller around the end of 2002. That is when short-shackling started, loud music playing in interrogation, shaving beards and hair, putting people in cells naked, taking away people’s ‘comfort’ items, … moving some people every two hours depriving them of sleep, the use of (air conditioning). … After [General Miller] came, people would be kept [in solitary] for months and months and months. We didn’t hear anybody talking about being sexually humiliated or subjected to sexual provocation before General Miller came. After that we did.”
“… This time I was short shackled. I was left squatting for about an hour and then this Bashir came back again and he started questioning me again about the photographs and trying to get me to admit that I was in the photographs. I was telling him that if you check you will find out that I was in England during this time. After a while he left the room and I was left again in the short shackle position for several hours (I think for about 4 hours) before I was eventually taken back to the cells.”
“I was interrogated repeatedly about my presence at this meeting. … I said it wasn’t me but she kept pressing that I should admit it. She was very adamant. She said to me “I’ve put detainees here in isolation for 12 months and eventually they’ve broken. You might as well admit it now so that you don’t have to stay in isolation”.

These statements are all from the Tipton Three: three English boys who went to Afghanistan to give humanitarian aid after the Americans attacked that country. They were eventually released and sent back to Britain: they were never charged with any offence. They were there simply by mistake.

Another person later released because his capture had been “a mistake” was a 99 year old shepherd. He was incontinent. Because of his age and frailty, he could barely hobble around the camp; he was chained to a walking frame. Other inmates reported that he spent much of his time weeping.
Values at risk

It is impossible to reconcile these events with the values which are basic to our democratic system: no arrest without lawful authority (enforced by the ancient writ of habeas corpus); no arbitrary search and seizure; no prison except by authority of law; the presumption of innocence; criminal charges to be proved beyond reasonable doubt; no torture; an assumption (although not a legal right) of privacy. These values can all be traced to the events in 17th century England and equivalent events elsewhere in Europe. It is interesting to remember that most of those excesses arose from the supposed threat presented by unpopular religious beliefs.

It has long been recognised that these basic values, so hard won, are always at risk. In a speech in Boston on 28 January 1852 Wendell Phillips said:

“Eternal vigilance is the price of liberty—power is ever stealing from the many to the few…. The hand entrusted with power becomes … the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot: only by unintermitted Agitation can a people be kept sufficiently awake to principle not to let liberty be smothered in material prosperity.”

In America, in Australia and elsewhere, there is a retreat from basic values. Pragmatism is emerging as a sufficient justification of measures which, until recently, would have been abhorrent. The dictates of pragmatism can be very appealing, especially to those (always the majority) who take the benefit. In the wake of September 11, Australia and other Western governments introduced draconian anti-terrorist laws. These laws, unprecedented in recent history except in time of war, betray the basic values on which democratic systems are established.
“Anti-terrorism” legislation in Australia

In 2002 the ASIO legislation was amended to permit the incommunicado detention, for a week at time, of people not suspected of any wrong-doing: it is enough if they are thought to have information about others who may have been involved in terrorist offences. The person may be taken into isolated custody, and will not have a free choice of legal help; they will not be permitted to tell friends or family where they are; they must answer questions, or face 5 years imprisonment. When released, they are not permitted to tell anyone where they were or what happened to them, on pain of imprisonment.

In 2005 further anti-terror legislation was introduced.

Division 105 of the Commonwealth Criminal Code provides that a member of the Federal Police may apply for a preventative detention order in relation to a person. A preventative detention order will result in a person being jailed for up to 14 days in circumstances where they have not been charged with much less convicted of any offence. The order is obtained in the absence of the subject and authorises that the person be taken into custody. When the person is taken into custody pursuant to the order, they will not be told the evidence on which the order was obtained: they will be given a copy of the order and a summary of the grounds on which the order was made. The summary need not include any information which is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act (2004).

Thus, a preventative detention order can be made not only without a trial of any sort, but in circumstances where the subject of the order will not be allowed to know the evidence which was used to secure the order.

Division 104 of the Commonwealth Criminal Code allows the Federal Police to obtain a control order against a person. A control order can include an order confining a person to a single address for up to 12 months, without access to telephone or the internet. When the subject of the control order is served with the order, they are to be given a summary of the grounds on which the order was made, but not the evidence. Thus, a person’s freedom of movement can be grossly interfered with for up to 12 months in circumstances where they have no opportunity to know the evidence on which the order was obtained much less to challenge it. The summary of the grounds on which the order was obtained need not include any information disclosure of which is likely to prejudice national security within the meaning of the NSI Act.

Secrecy provisions prevent publication of the fact that people are held for incommunicado questioning, or held on preventative detention, or the subject of a control order.

Lying behind these draconian laws is something even more sinister: National Security Information (Criminal and Civil Proceedings) Act (2004)) (the NSI Act). It is perhaps the most alarming piece of legislation ever passed by an Australian Parliament in a time of peace. The Act as originally passed was confined in its operation to criminal proceedings. In early 2005 it was amended so as to extend to civil proceedings as well. It provides that if a party to a proceeding knows or believes that they will disclose in the proceeding information that relates to national security, or the party intends to call a witness and that witness would, by their presence in court or by the evidence they could give, disclose information that relates to national security, then the party must notify the Commonwealth Attorney-General of the fact. The party must also notify the opposite party and the court. The court is then required to adjourn the proceeding until the Attorney-General acts on the matter. If the Attorney-General chooses, he may sign a conclusive certificate to the effect that the evidence proposed to be called, or the proposed calling of the witness, would be likely to prejudice Australia’s national security interests.

The certificate must then be provided to the court and the court must hold a hearing to decide whether or not to make an order preventing the evidence or witness from being called. During that hearing, the court must be closed. The Act authorises the court to exclude both the relevant party and his or her counsel from the closed hearing in which the question will be decided whether or not the evidence may be called or the witness brought to court.

In deciding the balance between the interests of a fair trial and the national security interests, the statute directs the court to give the greatest weight to the Attorney-General’s certificate that the evidence would present a risk of prejudice to national security.

These provisions are immediately alarming to anyone who understands the essential elements of a fair trial. They are all the more alarming when the real breadth of the provisions is understood. Their breadth comes from two things:

(a) the notion “likely to prejudice national security” is defined as meaning that there is a “real, and not merely remote, possibility that the disclosure will prejudice national security”;

(b) the definition of national security which means: “Australia’s defence, security, international relations or law enforcement interests”.

The apparently uncontroversial definition of national security is rendered astonishingly broad by the definition of “law enforcement interests”. That expression is defined as including interests in:

(a) avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;

(b) protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;

(c) the protection and safety of informants and of persons associated with informants;

(d) ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.

By reference to this definition, Australia’s national security is affected by each of the following things:

(a) evidence that a CIA operative extracted a confession by use of torture;

(b) any evidence which tended to reveal operational details of the CIA, Interpol, the FBI, the Australian Federal Police, the Egyptian Police, the American authorities at Guantanamo Bay, etc.;

(c) evidence which tended to show the use of torture or other inhumane interrogation techniques by any law enforcement agency.

These provisions are likely to have profound effect in several types of case.

First, in cases of people charged with terrorist offences. In such cases confessional statements may be received, but evidence that torture or other improper practices were used to obtain the confession may be excluded, in the name of national security.

Second, where a person is the subject of a preventative detention order or a control order they have a right to challenge the making of the order. However their challenge will be made difficult or impossible if they are prevented from knowing the evidence against them, or if they are prevented from calling other evidence which would qualify or explain the evidence against them.

Third, in cases where a person’s ordinary rights have been interfered with because of an adverse security assessment by ASIO. In those circumstances, it may prove impossible to have effective access to the material which provided the foundation of the interference.

There may be examples of the first and second type, but we are not allowed to know. The secrecy provisions surrounding control orders and preventative detention orders means that, in effect, the general public will not learn of them until many years have passed.

However examples of the third type can already be identified. An adverse security assessment from ASIO can result in a person’s passport being cancelled, or their job application being refused, or (for foreign visitors) a visa being refused or cancelled. In those circumstances, getting access to the material which provided the foundation for the adverse security assessment may prove difficult or impossible. Attempts to challenge the material can be met with the Attorney-General’s certificate.

Adverse security assessments from ASIO create another, related problem. An adverse security assessment will result in the cancellation of a visa or passport as the case may be. Cancellation of a passport may be challenged in the Administrative Appeals Tribunal. The Administrative Appeals Tribunal Act contains provisions enabling the Attorney-General to grant a certificate which, in substance, prevents the applicant and the applicant’s lawyer from being present in the Tribunal whilst certain evidence is given and submissions are made on behalf of the Government. Here is the text of one such certificate, issued early in 2006:

“I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia … hereby certify … that disclosure of the contents of the documents … described in the schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security.

I further certify … that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents … are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security.

As the responsible Minister … I do not consent to a person representing the applicant being present when evidence described … above is adduced and such submissions are made ….”

In 1894, Captain Alfred Dreyfus was falsely accused of treason, and wrongly convicted. The heart of the problem was that the trial was held in camera, and documkents were provided to the judges which were withheld from Dreyfus and his counsel, on grounds of national security. The documents were forgeries.

The campaign for Dreyfus’ freedom is still remembered, not least for Emile Zola’s famous newspaper article “J’accuse…” which exposed the appalling nature of the “trial” which convicted Dreyfus. It was many years before justice was finally done: 13 July 2006 marks the centenary of his ultimate exoneration.

It is all too easy to look back on the Dreyfus Affair and imagine that it could not happen here today. Two matters made the Dreyfus Affair possible:

(a) a secret trial and the use of evidence concealed from the accused and his counsel, and

(b) racial or religious prejudice which ran so deep as to blind people to any concern about the quality of justice accorded to Dreyfus.

In the certificate set out above however, the Attorney-General produces the conditions which led to the wrongful conviction of Alfred Dreyfus in 1894. The applicant who seeks to have his passport restored will face an impossible burden in knowing what evidence must be called, because neither he nor his counsel will be allowed to know the nature of the case against him. And he is a Muslim.

Anti-Semitism no longer exists in any significant measure in Australia, at least not in the virulent form which characterised 19th Century France and the first half of the 20th Century in Western Europe generally. However there are other groups who are sufficiently unpopular that, for practical purposes, most members of the community do not regard the rights of those people as mattering. Those unpopular groups include alleged paedophiles, alleged terrorists, aborigines, people with mental disorders and Muslims. This is not to say that the feeling against each of those groups runs as deep and as strong as anti-Semitism at the time of Dreyfus’s trial. But it is strong enough that a large majority of people in our society do not regard the rights of those groups as being important enough to deserve recognition or protection.

The possibility of secret trials and trials in which evidence is concealed from the accused and their counsel already exist in Australia as a matter of law, because of the NSI Act and related legislation.

Fair trials are one of the basic promises of democracy. It is a tragedy that we have abandonned the guarantee of fair trials, ostensibly to help save democracy from terrorists. What we will achieve in fact by these measures is a growing concern that the real danger to democracy is our own government.

In December 2004 the House of Lords decided a case concerning UK anti-terrorist laws which allow terror suspects to be held without trial indefinitely. By a majority of 8 to 1 they held that the law impermissibly breached the democratic right to liberty. Lord Hope said that “the right to liberty belongs to each and every individual”. Lord Bingham traced these rights to Magna Carta, and made the point that the struggle for democracy has long focused on the need to protect individual liberty against the might of executive government. Lord Nicholls said:

“Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.”

Lord Hoffman said:

“The real threat to the life of the nation … comes not from terrorism but from laws such as these.”

How much more forcefully could that be said of Australia’s “anti-terror” legislation.

By these laws, the Howard government  betrayed the rule of law in Australia. It  damaged Australian democracy more than any terrorist could. It created the new Terror.

Seventeen years on, there has been no improvement.  We would do well to remember the lessons of the Gunpowder Plot.

 

Write to Federal Politicians: Find Out What They Know

Labor and the Coalition are both going to turn back refugee boats.

By doing so, they will (incidentally) be committing the crime of people smuggling, contrary to section 73 of the Commonwealth Criminal Code. But who cares if we engage in criminal offences in order to close our doors to refugees?

The trouble is that a lot of MPs simply do not understand what they are going along with.  I urge you to write to Federal MPs to see how much they actually know.  If they don’t answer, you can assume they don’t know.  They probably will not answer.  Keep a record of the responses you get. Send the results to me. We will show up the MPs who do not even have enough manners to answer the questions.

Here is a discussion about the letter-writing experience of a very dedicated person from Niddrie.  It is really useful to get this sort of information, so please let me know how you go.

I urge you to write to your local Federal MP, and to the candidate of the opposite major party.  And if you have the energy, write to other Federal MPs.

There are some things you need to bear in mind if you write to MPs:

  1. Don’t tell them what you think: they are not listening.
  2. Ask just one or two questions.
  3. Ask questions which are directed to finding out what they know.  If they pass the letter to someone else to answer (eg, the Minister or Shadow Minister, you will see they are not willing to give their own opinion.
  4. Keep the letter really SHORT.  It is harder for them to disguise the fact that their response is not an answer to your question.

The ideal letter goes something like this:

“Dear X

I am a voter in [your electorate].

Do you think boat people are “illegal”?  If so, what offence do they commit?

Your faithfully…”

If you get a reply, it will probably be a couple of pages of waffle which does not answer your questions, but recites their party’s policy.  So write again, something like this:

“Dear X

I am still a voter in [your electorate].  thank you for your letter, but it did not answer my questions. Here they are again:

Do you think boat people are “illegal”?  If so, what offence do they commit?

Yours faithfully…”

Keep at them.

If they duck your questions more than 3 times, you can assume that they either can’t answer your questions (so do not even consider voting for them) or they know the answer and are too embarrassed by the facts.

Follow this link to find the names and contact details of Federal MPs

Kate had a good idea: form a social group; get together once a week to write letters; compare responses you have received; make it an enjoyable social event.  This way, you will (between you) write lots of letters.

Here are some sample questions you can ask:

  • Do you think people who arrive by boat to seek asylum in Australia are “illegal”?  If so, what offence do they commit?
  • Are you worried about boat people drowning?  If so, do you think it is alright to punish the ones who do not drown?
  • Do you think boat people in Nauru and Manus Island are treated humanely?
  • Do you think it is OK to put children in immigration detention?  Is it OK to have children held on Nauru?
  • In your opinion, what is the maximum time a refugee child should spend on Nauru?
  • What is the average number of boat people who have come to Australia each year in the past 40 years?  What is the average number of permanent new migrants who have come to Australia each year in the past 40 years?
  • Do you believe people who seek asylum in Australia should be detained indefinitely?
  • Do you believe indefinite detention of asylum seekers is humane?
  • Do you believe people who seek asylum in Australia should be taken against their will to Nauru or Manus Island?
  • Do you believe people who seek asylum in Australia and are held in Nauru or Manus Island are treated humanely?  If yes, in what way is that a deterrent?
  • Do you think it is acceptable to treat boat people harshly in order to deter others from seeking asylum in Australia?
  • Do you know how much offshore detention costs per person, per year?  If so, how much?
  • What is the average time boat people spend in detention?
  • Do you think there is a “queue” for refugees?  If so, where is it?
  • Do you support the idea of turning back asylum seeker boats?  If so, have you checked whether turning back asylum seeker boats breaches section 73 of the commonwealth Criminal Code?  Does it?
  • Are you worried about boat people drowning?  If so, how many people have drowned in boats that have been turned back?
  • In your opinion, could we process asylum claims in Malaysia or Indonesia and safely resettle people who are assessed as refugees?
  • Do you think we need to be protected from boat people?  If so, what risk do they present?
  • Do you think we need to be protected from children who come to Australia as boat people? If so, what risk are they to us?

The more people who write to MPs, the sooner they will wake up to the facts: we are treating refugees cruelly, and it is utterly pointless.

Follow this link to find the names and contact details of Federal MPs

How the World decided to help Refugees

A lot of people have the wrong idea about refugee protection: where it comes from, what it involves, etc.

Before the second World War, people facing persecution in Germany fled to any country they could reach: if they had family in other countries, that helped.  But they had very few rights.

Before WWII, the voyage of the St Louis showed us what was at stake.

In May 1939, a ship called the St Louis left Hamburg, carrying 900 Jewish refugees.  Its captain was Gustav Schroeder.  The St Louis was denied access to every port it approached, and eventually it had to return to Europe, despite the efforts of Captain Schroeder.  More than half the refugees on the St Louis ultimately perished in concentration camps.

In light of the current political attitudes in Australia, it is worth noting that Captain Schroeder was a people smuggler.  Those countries who denied the St Louis the right to land might look back now and ask whether their decision was a policy success or a humanitarian tragedy.

After WWII, as the world drew breath in horror at what had happened to the millions of people who could not escape persecution, two major international instruments were prepared and adopted:

  • The Universal Declaration of Human Rights (UDHR) (1948), and
  • The Refugees Convention (1951).

The UDHR starts with a preamble which captures some essential points:

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 it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, …”

Article 14 of the UDHR says this:

“Everyone has the right to seek and to enjoy in other countries asylum from persecution…”

And the central obligation under the Refugees Convention is in Article 33:

“No Contracting State shall expel or return (“refouler“) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion…”

The combination of the two provisions means that a person is entitled to seek asylum, and an asylum seeker who arrives in a country which has signed the Refugees Convention cannot be “refouleddirectly (by returning them to the country they have fled) or indirectly (by sending them to a country which has not signed the Refugees Convention and which can’t be prevented from returning them to the country they have fled).

The point of this is to share the burden of refugee movement, so refugees will not be forced into countries immediately adjacent to trouble spots.

It is often said that there are about 80 million refugees in the world today. Australia’s reaction suggests that we fear they will all try to come here.  A couple of important points: only about 20 million of them are on the move: the rest ire internally displaced in their country of origin.  but even if all 80 million were on the move, the world’s population is about 8 billion.  That means that just 1% of the world’s population are refugees.  If we were all true to the UDHR, every country would accept an increase of its population of 1%.  But Australia went hysterical when a record number of 25,000 boat people arrived her in 2012: that’s just one tenth of one percent of our population!

Australia’s treatment of people seeking asylum has been characterised by increasing cruelty, and this is explicitly to deter other people from seeking asylum here: we make the idea of seeking asylum in Australia look even worse than facing persecution at home.  some politicians say that our cruelty to boat-people is an expression of concern that they may drown in their attempt to cross from Indonesia to Australia.  They are lying when they say it.

Let’s be very clear about this: every death at sea is a tragedy.  No-one wants to see refugees die in their attempt to escape persecution, but the often-recited concern about refugees drowning is just hypocritical propaganda.  Let me be plain about this: when politicians like Abbott and Morrison and Turnbull and Dutton say they are worried about refugees drowning on their way to Australia, they are lying: they are deceiving the public.  If they were genuinely concerned about people drowning, they would not punish the ones who don’t drown.

Morrison as PM brags about “stopping the boats”.   But remember when he was Immigration Minister: he turned boats back, and denied us any information about the people on those boats: it was an “on-water matter”.  Let’s be clear about this: If a person drowns after their boat has been turned back, we aren’t allowed to know about it.  If a person chooses to escape by travelling North instead of South, and if they drown in the Mediterranean, we won’t hear about it.  And if they decide to stand their ground and their persecutor kills them, they’re still dead, just as if they had drowned.

Our politicians claim to be saving lives by stopping the boats, but it’s just a cynical way of winning votes while inflicting cruelty and misery on desperate people.

Oh, and just in case you missed it, our mistreatment of refugees in Manus Island and Nauru costs billions of dollars a year, and it’s costing us our reputation as a decent country.  Remember in June this year then-Immigration Minister Peter Dutton said:

“It’s essential that people realise that the hard-won success of the last few years could be undone overnight by a single act of compassion…”

So we are now  country where a senior Minister of the Crown can argue against compassion.  Even a few years ago, that would have been unthinkable.

So here’s an alternative policy, which shows a bit of compassion:

  • Shut down offshore processing: it’s needlessly cruel and expensive.
  • Assume the boats will start arriving again (far from certain, but assume it)
  • Initial detention of unauthorised arrivals, to enable health and security checks to be carried out;
  • Initial detention to continue for no longer than one month, unless a judge is satisfied in a particular case that continued detention is reasonably necessary;
  • At end of initial detention, release into the community on an interim visa, pending determination of protection visa application.  The interim visa would include conditions which:
    • allowed the asylum seeker to work;
    • allowed full Centrelink and Medicare benefits;
    • Required the asylum seeker to live in  specified regional or rural area;

Conditions might, if thought appropriate, include wearing an electronic bracelet to permit the wearer to be tracked.

Even if every asylum seeker stayed on full Centrelink benefits (which is highly unlikely, give that they are mostly courageous and motivated), all the Centrelink allowance would be spent in the ailing economy of whatever regional area the visa required the asylum seeker to live in.  After all, when you have paid rent, food and clothes, there’s not much left over.  And right now we are spending about $650k per refugee per year keeping them in hellish conditions in Manus and Nauru.

Protecting refugees

A lot of people have the wrong idea about refugee protection: where it comes from, what it involves, etc.

Before the second World War, people facing persecution in Germany fled to any country they could reach: if they had family in other countries, that helped.  But they had very few rights.

After WWII, as the world drew breath in horror at what had happened to the millions of people who could not escape persecution, two major international instruments were prepared and adopted:

  • The Universal Declaration of Human Rights (UDHR) (1948), and
  • The Refugees Convention (1951).

The UDHR starts with a preamble which captures some essential points:

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 it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, …”

Article 14 of the UDHR says this:

“Everyone has the right to seek and to enjoy in other countries asylum from persecution…”

And the central obligation under the Refugees Convention is in Article 33:

“No Contracting State shall expel or return (“refouler“) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion…”

The combination of the two provisions means that a person is entitled to seek asylum, and an asylum seeker who arrives in a country which has signed the Refugees Convention cannot be “refouleddirectly (by returning them to the country they have fled) or indirectly (by sending them to a country which has not signed the Refugees Convention and which can’t be prevented from returning them to the country they have fled).

The point of this is to share the burden of refugee movement, so refugees will not be forced into countries immediately adjacent to trouble spots.

Australia’s treatment of people seeking asylum has been characterised by increasing cruelty, and this is explicitly to deter other people from seeking asylum here: we make the idea of seeking asylum in Australia look even worse than facing persecution at home.  some politicians say that our cruelty to boat-people is an expression of concern that they may drown in their attempt to cross from Indonesia to Australia.  they are lying when they say it.

Let’s be very clear about this: every death at sea is a tragedy.  No-one wants to see refugees die in their attempt to escape persecution, but the often-recited concern about refugees drowning is just hypocritical propaganda.  Let me be plain about this: when politicians like Abbott and Morrison and Turnbull and Dutton say they are worried about refugees drowning on their way to Australia, they are lying: they are deceiving the public.  If they were genuinely concerned about people drowning, they would not punish the ones who don’t drown.

Morrison as PM brags about “stopping the boats”.   But remember when he was Immigration Minister: he turned boats back, and denied us any information about the people on those boats: it was an “on-water matter”.  Let’s be clear about this: If a person drowns after their boat has been turned back, we aren’t allowed to know about it.  If a person chooses to escape by travelling North instead of South, and if they drown in the Mediterranean, we won’t hear about it.  And if they decide to stand their ground and their persecutor kills them, they’re still dead, just as if they had drowned.

Our politicians claim to be saving lives by stopping the boats, but it’s just a cynical way of winning votes while inflicting cruelty and misery on desperate people.

Oh, and just in case you missed it, our mistreatment of refugees in Manus Island and Nauru costs billions of dollars a year, and it’s costing us our reputation as a decent country.  Remember in June this year then-Immigration Minister Peter Dutton said:

“It’s essential that people realise that the hard-won success of the last few years could be undone overnight by a single act of compassion…”

So we are now  country where a senior Minister of the Crown can argue against compassion.  Even a few years ago, that would have been unthinkable.

French au pairs

How does this work?

The story so far:
-Some Tory squatter couple needs a Froggy au pair to mind their idiot sprogs while they go to the polo.
-La Bimbo gets stopped by border security because she was clearly intending to break her visa conditions.
-Minutes later she is freed to work illegally after a couple of calls by our hero the head of the AFL
-Hundreds of refugees rot on Nauru.
-Dutton tells us there’s nothing to see here: it is irrelevant that the Tory squatter couple’s family are big donors to Dutton’s political party.
-Time to throw up

https://www.theguardian.com/australia-news/2018/aug/28/peter-dutton-intervened-in-third-au-pair-visa-case-for-afl-bosss-relatives

Scott Morrison – Practising hypocrite

Scott Morrison is now Prime Minister of Australia.  Read this article in the Guardian Australia about a 7-year-old held on Nauru and remember: Scott Morrison could fix this in an instant, if he was true to his stated beliefs.

It is amazing to see how far dishonesty and hypocrisy can get you in this country.

Scott Morrison’s maiden speech in Parliament placed great emphasis on his Christian values.  Among other things he said:

“So what values do I derive from my faith? My answer comes from Jeremiah, chapter 9:24:

… I am theLord who exercises loving-kindness, justice and righteousness on earth; for I delight in these things, declares the Lord.

From my faith I derive the values of loving-kindness, justice and righteousness, to act with compassion and kindness, acknowledging our common humanity and to consider the welfare of others; to fight for a fair go for everyone to fulfil their human potential and to remove whatever unjust obstacles stand in their way, including diminishing their personal responsibility for their own wellbeing; and to do what is right, to respect the rule of law, the sanctity of human life and the moral integrity of marriage and the family. We must recognise an unchanging and absolute standard of what is good and what is evil. Desmond Tutu put it this way:

… we expect Christians … to be those who stand up for the truth, to stand up for justice, to stand on the side of the poor and the hungry, the homeless and the naked, and when that happens, then Christians will be trustworthy believable witnesses.

These are my principles.”

If those are Scott Morrison’s principles, he is not a man of his principles.  During his time as Immigration Minister, Morrison showed no trace of “loving kindness” or justice or compassion for refugees who came to Australia by boat looking for protection from persecution.

Peter Dutton claims to be Christian, but he boycotted Kevin Rudd’s Apology to the Stolen Generations in February 2008.  Like other members of Coalition governments during the past 16 years, he refers to boat people as “illegal” and he administers a system of detention which shows astonishing cruelty.

This is not the place to give details of Australia’s mistreatment of refugees: the facts are well-enough known.  Equally well-known is the Coalition message that a harsh refugee policy is essential to protect refugees from the risk of drowning.

But to suggest that Morrison and other politicians are worried about refugees drowning is a lie: a fig-leaf to make immoral mistreatment look compassionate.  “Worried about people drowning”!  So worried that, if they don’t drown, we punish them as if they were criminals, and call them “illegal” to make their punishment look vaguely respectable.  We do it, explicitly, as a deterrent so that others will not try to find safety in Australia.  And these dishonest politicians, pretending to be motivated by compassion, overlook altogether that if persecuted people stand their ground and are killed by their persecutors, they are still dead: just as if they drowned; if they die in an attempt to escape to some other country, they are still dead: just as if they drowned.

For politicians like Morrison, Abbott, Turnbull and Dutton to say they are worried about boat people drowning is a lie.  For them to mistreat asylum seekers in the way they do is a betrayal of the Christian values they cherish.

Our new PM, Scott Morrison, is a dishonest hypocrite, just like the PM he replaces and Dutton, who replaced him as Immigration Minister.

Human Rights Abuses in Israel

Recently I was invited to speak at the annual dinner of AFOPA (Australian Friends of Palestine Association) in Adelaide:

Australian Friends of Palestine Association – 4 November 2017

It sounds pathetic: I just did not know.

I did not realise what was being done to Palestinians.

I was vaguely aware of troubles in Israel, of course. I was vaguely aware of reports of Palestinian youths causing trouble, throwing stones at Israeli settlers. I was vaguely aware that Israelis who were attacked would strike back.  And of course, like most people, I was aware that the State of Israel was established as a homeland for the Jews who are one of the most persecuted races in all of history.

But I did not realise how shockingly the human rights of Palestinians are being violated.

It’s 69 year since al-Nakba: when more than 800,000 Palestinians were driven out of their homes; 500 villages were destroyed; 15,000 Palestinians were killed.

It’s 100 years since the Balfour Declaration. The Balfour Declaration originated in a letter written by Lord Balfour on 2 November 1917: 2 days after the famous charge of the Australian 4th Light Horse Brigade.

Back then, the Palestinians fought alongside the British. They didn’t get much gratitude: the Balfour Declaration included this paragraph:

His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

As it turned out, the rights of Palestinians have been comprehensively trashed.

And when Malcolm Turnbull went to Beersheba recently to celebrate the famous battle, no Palestinian leader was invited to attend.

The abuses of the human rights of Palestinians are getting worse. In particular, Palestinian children are grossly mistreated, despite the provisions of various international human rights conventions to which Israel is a party.

Palestinian children as young as 12 :

  • Are being arrested in their homes, at night, between 10pm and 5 am
  • Are being taken away, blindfolded, hooded, their hands tied
  • They are often placed on the floor of the van that takes them away, and they are taken by long, slow routes, so they often spend hours on the floor in the back of the van
  • They are physically abused: head-butted, kicked, tasered, dragged across the ground
  • They are strip-searched and threatened
  • They are interrogated without being told they are entitled to have their parents present; without being told they are entitled to have a lawyer present; without any warning that they have the right to remain silent
  • Some Palestinian children have been held in solitary confinement for weeks on end.

And beyond all this, there is the Israeli Defence Force’s use of administrative detention: detention without charge, without trial; sometimes for months.

John Lyons recently published a piece in the Weekend Australian. It includes this paragraph:

“Twice a week they had children’s days when children as young as 12 faced the army judges. I caught a glimpse of four young boys, in brown prison overalls, shuffling across the courtyard. They were handcuffed and shackled at the feet. I thought: if the 1nost powerful army in the Middle East thinks it’s acceptable to treat children like this, then something has gone badly wrong…”

Israel has been warned that these things are a gross violation of international human rights norms. Its response has been to suppress information about what it is doing.

The legal rights of Palestinian children are not the same as the legal rights of Israeli children. Palestinian children are treated as legally responsible when they are 12; Israeli children are not legally responsible until they are 14.  Israeli children are taken to a civil court; Palestinian children are taken to a military court.  Israeli children are taken to a civil court; Palestinian children are taken to a military court. Israeli children are treated properly if they come into contact with the criminal justice system; Palestinian children are not.

Israel is making the same tragic mistake Australia makes in relation to boat people. It seems to have forgotten completely the most fundamental point: these are human beings.

Anyone who criticises Israel’s conduct can expect a fierce response. John Lyons writes about it. Anthony Loewenstein has experienced it, and so have I.

I do not wish to deflect attention from the mistreatment of Palestinians for one moment, but it is worth noticing that we have a parallel set of events in Australia.

Australian Aborigines know what it is like to have your land taken; they know what it is like to be kept out of privileged areas; they know what it is like to be given a different, and inferior, legal status; they know what it is like for their children to be taken, mistreated, turned into aliens in their own land.

As I learned what was being done to Palestinian children, I had a recurring vision of the Aboriginal children in the Don Dale Youth Detention Centre.

And Australia has a terrible record for mistreatment of children whose parents brought them to Australia as boat people: they get locked up indefinitely, in what the legal system regards as…yes…”administrative detention”. No charge, no trial.

It is eminently appropriate that AFOPA was founded in South Australia. South Australia leads this country in many things, not least in its advocacy for decent treatment of boat people. And South Australia is the only State where an Aboriginal man, who was taken from his parents when he was 13 months old, was accepted by a Court to have been taken unlawfully, and to have suffered harm as a result.

South Australians seem to understand human rights. Please support the work of AFOPA: keep reminding our politicians that what is being done to Palestinians is utterly unacceptable; donate to charities which concern themselves with human rights: especially Military Court Watch, which is doing remarkable work reporting the atrocious treatment of Palestinians. And hit social media: make sure Australians learn the truth about what is happening. After all, if our political “leaders” hide from the truth, let’s use the new democracy of social media to remind them.

 

 

 

Why People Flee for Safety

Here is a message I received from Paul Ronalds of Save The Children. It is an excellent account of what forces people to become refugees. Read it, and ask yourself what you would do to reach safety, if you were in this unhappy position?

It’s hard to believe, but tomorrow (25 August 2018) marks one year since the Rohingya crisis unfolded in Myanmar’s northern Rakhine State. Brutal violence drove Rohingya people from their homes, leading to one of the largest humanitarian crises in the world. Now, with more than 800,000 refugees living in crowded camps in Cox’s Bazar, Bangladesh, the settlement has earned the dubious title of being the world’s largest refugee camp.

Twelve months ago, whole villages were burned to the ground. Families and children embarked on treacherous journeys – some by foot and others on unsafe boats – desperately hoping to find safety in neighbouring Bangladesh. Against all odds, a lot made it – albeit malnourished, sick or wounded. But a lot didn’t.

Of those who did make it over the border, more than 55% were children. Some arrived unaccompanied and separated from family – distressed and too exhausted to speak. While others arrived as orphans, having tragically seen their parents or relatives killed.

These are events no child should ever have to experience.

Eight-year-old Aziz* is one of those children. He has experienced unthinkable brutality and he has endured lifechanging events that most adults would find hard to imagine.

Aziz was separated from his family after an armed group came to their village, randomly shooting and beating people. The family fled to safety but, in their scrambled escape, Aziz was shot twice in the leg and fractured his arm as he fell to the ground. Unfortunately, no one realised Aziz had been wounded and left behind – until it was too late.

After the violence settled, family and friends searched desperately for the young boy. But when they eventually found him, they were forced back into hiding and couldn’t access medical services for a week. By which time, Aziz’s leg had become so badly infected it had to be amputated. Likewise, his injured arm was irreparably damaged.

After 25 days in the clinic, Aziz returned home but soon after the armed groups mounted fresh attacks. This time there was no hiding in the hills, the family knew they had to leave their home indefinitely.

Trekking in heavy rain – sometimes wading through thigh-high mud and clay – and without any food or water, it took them nine days to reach Cox’s Bazar by foot. Aziz, still frail from his surgery, was carried by his 16-year-old sister.

Aziz and his family have been in the Cox’s Bazar refugee camp for almost 12 months. It’s a grim existence, living in precarious shelters and facing constant threats of malnutrition and disease, but still Aziz and his family consider themselves among the ‘lucky’ ones.

The task of providing food, water, shelter, sanitation, healthcare and education to so many vulnerable people in such a short period of time has been immense. But our work has meant Aziz – and 370,000 Rohingya children in Cox’s Bazar – have received these essentials. They’ve had access to a health clinic and have been able to attend child-friendly spaces, which has been particularly beneficial for Aziz’s psychological recovery and wellbeing.

But our work is far from finished.

In the months leading up to this first anniversary, camps have had to contend with monsoon and cyclone conditions. Heavy showers and powerful winds have torn through the overcrowded and already-fragile settlements, which are highly susceptible to landslides.

Already, there have been thousands of mini landslides. Around 8,000 refugees have been directly affected and just over 4,000 have had to move because their makeshift shelters have been destroyed.

We have prioritised our work preparing communities for monsoons and cyclones – running flood preparedness workshops and setting up lost child points to help reunite families and children after storms. But we are deeply concerned about the potential for a health disaster in the camps.

Any outbreak of disease in these fragile conditions and cramped spaces could spread quickly and would be potentially catastrophic.

In short, it could create a disaster within a disaster.

Over the past year, the Government of Bangladesh, UN agencies and NGOs like us, have mounted an enormous humanitarian response. But it must be drastically ramped up if we are to alleviate the uncertainty these families and children continue to endure.

Thousands of Rohingya children, just like Aziz, are in urgent need of support. With your help, I believe we can reach them – we can keep them safe from disease, abuse and exploitation. We can provide them with life essentials and we can give them the chance to go back to school. With your help, I believe we can allow them to be kids again.

Tomorrow, as we mark 12 months since the crisis began, please join me in making a gift to our Rohingya Crisis Appeal. With your support, we can ensure Rohingya children are given the best possible chance to recover from this humanitarian disaster.

PS, Read our recent donor impact report The Rohingya Crisis One Year of Your Support, it explains how donors, like you, have helped our work with Rohingya refugees in Bangladesh.

*Name have been changedPaul Ronalds | Chief Executive Officer | Save the Children Australia
33 Lincoln Square South, Carlton Vic 3053

 

The Brilliant Cathy Wilcox

Here is a letter by Freddie Steen to the Editor of the Sydney Morning Herald.  I agree with every word of it.

The Editor ,

Cathy Wilcox(“political cartoon, 1/8) cuts to the core: Dutton’s punitive, care-less  position on the human  status of men seeking asylum , lets young men die.

A breach of the 1951 UN Refugee Convention RG Menzies freely signed in 1954.

The death of Hamid Khazaie  is now world history as a preventable death in administrative  immigration detention, in itself illegal in PNG.

But there is so much more.

The Biloela Tamil family with two babies,  remains locked up in Melbourne Detention.

The body of the young Iranian who could stand it no more on Nauru , lies in an undertaker’s vault in Brisbane and his widow, mother and 12 year old brother are refused travel to bury him.

Baby Asha from Nauru, and baby Ferouz born in Brisbane’s Mater Hospital are still living in limbo.

 Mojgan the Brisbane  student plucked out of Year 12, separated from her Australian resident husband , and  re detained  in Darwin detention is  now living  in Brisbane with uncertainty, on a visa that is temporary.

And  “ Ali”, the 63 year old  Hazara refugee  is dying with terminal cancer  in Brisbane  immigration detention,  when 2000 doctors signed a petition  telling the Minister that palliative  support and medical  services on Nauru are  not at an Australian standard, and Ali must be brought here.

There are 60 000  + people  residing among us illegally without a valid visa , yet a proven Afghan  refugee who came the dangerous way by boat five years ago ,   is deprived at the end of his days of the freedom he dreams of for his family , for which he risked his life.

Like tens of thousands of Australians, this makes me ashamed and sad.

Frederika E Steen  AM
(address supplied)

The Australian Government can save Julian Assange

Julian Assange is an Australian. He is in trouble overseas.  He needs the Australian government’s help.

For six years he has been virtually a prisoner in the Ecuadorean Embassy in London.  The reason he is there is because he is the founder and editor of WikiLeaks, which published evidence of war crimes leaked by an American soldier, Bradley (later Chelsea) Manning as a matter of conscience. WikiLeaks has since revealed the secrets of the world’s unaccountable forces. This Australian has provided an historic public service.

The Americans have made it clear from the start that they want to get Assange, who has good reason to fear he will be mistreated the way Chelsea Manning was. That’s why this week’s events in London are so critical. Will the Ecuadorean president Lenin Moreno, at present visiting London and under pressure from Washington, abandon the man his country has so honourably protected?

Julian Assange has never been charged with any crime. In 2010, Sweden wanted to extradite him from Britain under a European Arrest Warrant. When it became clear that Sweden was likely to hand him over to the Americans, he sought asylum in the Ecuadorean Embassy in London.

The Swedish case has been dropped, but the British authorities still want him for jumping bail.  If he steps out of the Embassy, they will very likely hand him over to the Americans.

This Australian needs Australia’s help.

He has not seen sunshine or felt rain for 6 years. Try to imagine what it is like to be stuck indoors for 6 years.  Whatever your view of what he did, 6 years inside is enough.

His health has deteriorated badly over those 6 years.  I visited him at the Embassy  in the middle of June: he is looking much frailer than when I saw him there in mid-2012.

His teeth are causing great pain: a dentist can’t visit him.   He needs root-canal surgery, which is not possible except in a fully equipped dental surgery.

He is suffering from oedema: his legs are swelling.

His eyesight is fading, because he cannot look into the distance: the most distant thing from him inside the Embassy is a view down the corridor, which is perhaps 10 metres.

His bone-density is reducing seriously, because he has not been in the sunshine for 6 years, and exercise is difficult.

The government of Ecuador changed recently, and conditions in the Embassy have changed as well: it is now much more difficult for Assange to receive visitors, and he does not have access to a phone or the internet.

Because the British authorities are likely to hand him over to the Americans, Assange does not dare to step out of the Embassy.  That’s why he needs the help of the Australian government.  Malcolm Turnbull and Julie Bishop could easily reach a diplomatic agreement with Britain to allow Assange to be brought safely back to Australia, where his family is.  If the Americans want to extradite him, they can apply to an Australian Court. The Australian Government has given help to other Australians in trouble overseas – such as the journalist Peter Greste in Egypt.

It in era of diminishing rights, of widespread insecurity and injustice, it is time to recognise one who has stood against the tide. Julian Assange needs our help, urgently. The Government should give it without delay.

 

Hobart Oration 23 July 2018

I was honoured to be invited to give the 2018 Hobart Oration.  It is sponsored by the Bob Brown Foundation.  Here is what I said.

Hobart Oration 23 July 2018:  Justice for the next Generation?  The Collapse of Values.

The two great issues our generation is leaving the next are climate change and the treatment of refugees.

Climate change

I have no hesitation in saying that climate change is the number one issue today: refugees are a second-order issue, but they just happen to be the issue which has captured my attention.

Both are issues which the next generation will have to solve, if humanity is to survive and flourish.

It is often overlooked that climate change has been known about for a long time.  The foundations were laid by the French mathematician Joseph Fourier, who noted that the Earth was too far from the Sun to account for a temperature which could support life, unless the atmosphere trapped some of the sun’s heat.

Later the Irish physicist John Tyndall identified the role of water vapour, CO² and methane as the key factors in trapping infra-red heat and thus maintaining atmospheric temperature.

Fourier’s work was done in 1824, Tyndal’s in 1859.  Later a Swedish chemist, Svante Arrhenius, named the ‘Greenhouse effect’ and calculated the relationship between CO² levels and atmospheric temperature with astonishing accuracy.  That was in 1896.

Let’s take a moment to look at what Australia is doing — or not doing — on climate change.

In November 2016 an expert advisory panel reported that coal-fired Queensland, with just 7% of its power generation from renewables at present, could lift that to 50% by 2030 with very little cost to electricity consumers.  The Queensland government would subsidise renewables.  The federal energy minister, Josh Frydenberg criticised the report.

We are a uniquely embarrassing case on the global stage: the Gillard Government put in place a fairly comprehensive domestic climate policy with a carbon price by that was later dismantled.  Our emissions have risen every year since.  Malcolm Turnbull has failed to adopt policies any more advanced than those of the troglodyte Tony Abbott.   Conservative politics in Australia will have to be dragged kicking and screaming towards energy sector reform.

To watch Malcolm Turnbull fade into a shadow of what he could have been is to watch the slow destruction of a man the country once respected on many of our most important issues. He seems unable to lead his party, and has capitulated to the hard right: intellectual giants like Tony Abbott, Peter Dutton and Eric Abetz – particularly on the issues of climate change and refugees – that Australia’s global reputation on climate change has gone from global leader to global threat.

Since the world signed the Paris Agreement, here are some of our “achievements”:

  • Tony Abbott asked the mining industry to “demonstrate its gratitude” to the retiring Federal Resources Minister – Ian MacFarlane – who had dismantled the mining tax. The Industry paid attention, and MacFarlane got a $500k per year job with the Queensland Resources Council — on top of his $140k Parliamentary pension — so he can spruik for the Adani Carmichael coal mine in Queensland.  And Abbott recently expressed regret that he had signed Australia up to the Paris Agreement in the first place.
  • The government fast-tracked the Adani coal mine in Queensland – one of the biggest coal basins in the world which, if developed, would blow any chance the world has of remaining below 2 degrees of global warming.  It continues to press for the Adani mine to go ahead.
  • It has attacked environmental groups standing up for the world’s climate and trying to protect our natural environment. The Turnbull Government launched a two-pronged attack on environmental groups – the first attack: seeking to amend the Environmental Protection and Biodiversity Conservation Act. This Act allows groups and individuals to legally challenge resource projects if they are a threat to water or the environment. It is an incredibly important provision – introduced by the Howard Government – that allows for a check on the Government’s power. The second attack: on the tax-deductible status of environmental not-for-profits. This is an attempt to silence groups who are standing up against fossil fuel projects.  Recent changes introduced by the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 present an additional threat to environmental groups with foreign affiliation.
  • In May of 2016 it was revealed that the government censored a UN report on the extent of bleaching in the Great Barrier Reef and how much of a role climate change had to play in it. In 2016 the health of the reef got a “D” on the Australian government’s annual report card for the fifth year in a row and large-scale bleaching in the northern part of the reef threatens to see it never return to a productive state.  To put this in perspective, the world’s coral reefs have perished before, but they recovered… 10,000 years later.  That should be encouraging for the Great Barrier Reef tourist operators.
  • The Government launched an ideological war on renewable energy after the notorious South Australian blackout. It culminated in Energy Minister Josh Frydenberg trying to bully the states out of their ambitious renewable energy targets and pushing them instead to focus on promoting onshore gas production.
  • The Australian government actively resisted and watered down restrictions on financing of coal plants by OECD export credit agencies in 2015 because the government wants more coal plants to be built so that there are new markets for Australian coal.

And we thought Donald Trump was embarrassing!

By exporting our coal, we are exporting our emissions to other countries that we are not required to take responsibility for under our UN climate commitments. Just Australia’s domestic emissions equate to 1.5% of the world’s carbon emissions – 16th in the world.

However, if we add emissions from our exported coal to our domestic emissions, Australia’s carbon footprint trebles in size and we become the 6th largest emitter after China, the USA, Russia, India and Indonesia – all of which have populations over 250 million.

Even worse is that if the proposed Adani coal mine and development of the Galilee Basin goes ahead, we would be responsible for 705 million tonnes of CO2 per year.

This is at a time when reports are telling us that if there is any chance of avoiding the ‘safe’ 2 degree warming scenario that no new fossil fuel projects can go ahead, and that current ones need to be scaled back.

It is up to us – Australian citizens – to lead the way on climate and make the moral case for climate change leadership.

And still the climate change deniers are taken seriously by our media.

We need to force our politicians to consider the precautionary principle.  About 97% of the world’s climate scientists accept that climate change is real, anthropogenic and dangerous.  Deniers would point out that science is not decided by popular vote.  True enough, although it is sometimes useful to listen to people who know what they are talking about.  But let’s accept it: the scientists may be wrong.

Let’s give odds of 80% against the scientists: that is, let’s assume there is an 80% chance they are wrong.  But if they are right, if the 20% chance comes in, the result will be catastrophic and avoidable.  20% chance of a catastrophic, avoidable result is worse odds than Russian Roulette. So next time someone argues the denialist case, ask them if they are willing to play Russian Roulette with their children or grand-children.

And let’s face it: if we spend the money to avoid climate change, and if the denialists turn out to be right, the worst you can say is that we cleaned up the planet for no reason…

Refugees

It is tempting to reach far back into history for the origins of human rights thinking.  But it is not necessary to go back further than 1948.

The Universal Declaration was the work of a surprising activist: Eleanor Roosevelt.  She was the widow of Franklin Delano Roosevelt who had died shortly before the end of the Second World War.  She was also cousin to Roosevelt and had grown up in the rich surroundings of the Roosevelt family.  But Eleanor Roosevelt was a genuine egalitarian and had set her heart on responding decisively to the horrors of the Second World War.

The Universal Declaration begins as follows:

PREAMBLE

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 it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, …

It’s not widely remembered that Australia was advocating that the rights it declared should be enforceable. The inspiration for that of course came from the fact that Ben Chifley was the Prime Minister at the time and Doc Evatt, uniquely among Australians, was the President of the General Assembly on 10 December 1948 when the Universal Declaration of Human Rights was adopted by the United Nations.  Australia’s influence in the formation of the declaration was very significant, especially considering that we only had a population of about 3.5 million back then.

I like to think that the Universal Declaration of Human Rights was a genuine reflection of the sentiment of the times: across Australia and across the world.

But things changed.  At the start of 2001, John Howard was facing an election to be held in November that year.  He played what he probably hoped would be a trump card and which turned out to be more successful than his devious mind could have dared hope for.  He became aware that a small boat, the Palapa, carrying Hazara refugees from Afghanistan was falling apart in the Indian Ocean.  He knew the Norwegian container ship the MV Tampa was in the area.  He asked the Tampa to rescue the people on the Palapa.

The captain of the Tampa agreed, and when he found the Palapa he thought it might hold maybe 50 people.  He was astonished when 434 people climbed out of the water, up the rope ladder and onto the deck of the Tampa.

Australia – indeed the whole world – knew about the Taliban’s murderous attitude to Hazaras.  In February that year, the Taliban had publicly destroyed the Bamiyan Buddhas.  The statues had been erected 1500 years earlier by Hazaras – thought to be descendants of Genghis Khan – when they arrived in the area now known as Afghanistan.  Hazaras are readily identifiable, because they look Asian.  They were Buddhists when they arrived, but later converted to Islam.  But they embraced Shia Islam.  The Taliban are Sunni Muslims, and claimed that they wanted to clear Afghanistan of idolatry.  The division between Shia and sunni Muslims is as sharp as the division between Protestants and Roman Catholics used to be.

When the Tampa had rescued the refugees on the Palapa, there were two problems: some of them were in bad shape and needed medical help.  And the Tampa was licensed to carry 50 people: it had 47 crew, and (suddenly) 434 unexpected passengers.

Captain Arne Rinnan decided to put the refugees ashore at Christmas Island, which was on his planned route.

Christmas Island is a speck of Australian sovereignty in the Indian Ocean.  It is close to the equator.  It is about 2000 kilometres to the nearest point on the West Australian coast and is almost 3000 kilometres from Perth or Darwin.

When the Tampa tried to reach Christmas Island, Howard sent out the SAS, who took command of the bridge at gunpoint.

A stand-off followed.  Howard closed the airspace above Christmas Island, and issued a command that no “humanising images” of the people rescued (they were called “rescuees”) should be taken.  A group of us went to the Federal Court to try and resolve the impasse: after all, there were more than 400 people – men, women and children – being held hostage on the steel deck of a ship, in the tropical sun.  The trial was heard straight away by Justice North in the Federal Court.  He delivered judgment at 2.15 pm, Eastern Australian Time, on 11 September 2001.  The attack on America happened about 8 hours later.

John Howard, always quick to scramble for a political advantage, started calling boat-people “illegals”.  The Federal election was held two months later.  Howard went to the polls with the slogan “We will decide who comes to the country, and the circumstances in which they come.”  The coalition election campaign had Philip Ruddock – the walking spectre – as its pin-up boy.

Australia’s unhappily named “Pacific Solution” involved taking boat-people from Christmas Island to Manus Island or Nauru.

Manus is part of Papua New Guinea. Nauru is an independent republic.  Both are close to the equator.   Both are tiny: Nauru is smaller than Tullamarine airport in Melbourne.

Until 2013, when boat people arrived at Christmas Island, they had typically spent eight or 10 days on a rickety boat.  They had typically come from landlocked countries and had typically never spent time on the ocean.  Typically, they had not had enough to eat or drink on the voyage.  Typically, they had not had any opportunity to wash or to change their clothes.  Typically, they arrived distressed, frightened and wearing clothes caked in their own excrement.

They were not allowed to shower or to change their clothes before they were interviewed by a member of the Immigration Department.  It is difficult to think of any decent justification for subjecting them to that humiliation.

When they arrived, any medical appliances they have would be confiscated and not returned:  spectacles, hearing aids, false teeth, prosthetic limbs: all were confiscated.  If they had any medications with them, those medications were confiscated and not returned.  According to doctors on Christmas Island, one person had a fulltime job of sitting in front of a bin popping pills out of blister packs for later destruction.

If they had any medical documentation with them, it was confiscated and not returned.  The result of all of this was that people with chronic health problems found themselves denied any effective treatment.  The results could be very distressing.

Doctors were required to determine within 48 hours whether a person was suitable to be moved to Manus or Nauru.  The tests which are necessary for that assessment take seven days to complete.  They were not given the opportunity to complete the tests properly.  The detainees were nevertheless moved to Nauru or Manus.

One doctor who worked on Christmas Island told me of a woman who had been detained there for some weeks because she was generally regarded as psychotic.  Her behaviour was highly erratic, but for reasons no-one understood.  The consultation with this woman was very difficult because, although the doctor and the patient were sitting across a table from each other, the interpreter joined them by telephone from Sydney: over 5000 kilometres away.

Eventually, the doctor worked out the problem: the woman was incontinent of urine.  She could not leave her cabin without urine running down her leg.  It was driving her mad.  When the doctor worked out the cause of the problem, she asked the Department to provide incontinence pads.  The Department’s initial response was “we don’t do those”.  The doctor insisted.  The Department relented and provided four per day:  more than that would be a fire hazard, they said.

In 2012, the Pacific Solution was revived by Julia Gillard and in 2013 it became much harsher thanks to Kevin Rudd, in his second incarnation as PM.

From 2013, boat people were sent for offshore processing more or less regardless of circumstances.  So, for example, we know of cases where some members of a refugee family arrived in Australia before the cut-off date, were assessed as genuine refugees, and have since been settled in the Australian community.  But their family had been split up in the course of the journey, and some of the arrived just after the cut-off date, and are still held in Manus or Nauru.

From 19 July 2013, boat people have been sent offshore as a deterrent to others who might be tempted to seek asylum in Australia.  Behrooz Bouchani is held on Manus.  He has written a book called No Friend but the Mountains.  In it he says, at page 133:

“Can it be that I sought asylum in Australia only to be exiled to a place I know nothing about? … Clearly they are taking us hostage.  … We are being made examples to strike fear into others, to scare people so they won’t come to Australia. …”

Tony Abbott became PM later in 2013 (there’s a thought to conjure with) and appointed Scott Morrison as his Immigration Minister.  Later, Malcolm Turnbull rolled Abbott, and Turnbull appointed Peter Dutton as his Immigration Minister.

I mention Morrison and Dutton specifically because they are, arguably, the most dishonest hypocrites ever to hold high office in this country.  “Dishonest” because they call boat people “illegal”, even though the fact is that boat-people do not commit any offence against Australian law by arriving the way they do.  “Hypocrites” because they both claim to be Christians, and yet their treatment of asylum seekers has been criticized by every Christian denomination and by the World Council of Churches. Their conduct is irreconcilable with Christian teaching.

So we are led by dishonest hypocrites who trade on sanctimony and imprison innocent children.  Right now there are about 125 refugee children on Nauru, living in misery and hopelessness.  40 of them were born in detention and have never experienced a day’s freedom in their lives.

Nauru

In the middle of 2017 The Guardian Australia published the Nauru files: more than 2000 incident reports, compiled by workers employed by Australia.  More than half of the Nauru files concern mistreatment of children.  They range from a guard grabbing a boy and threatening to kill him once he is living in the community to guards slapping children in the face. In September 2014 a teacher reported that a young classroom helper had asked for a four-minute shower instead of a two-minute shower. “Her request has been accepted on condition of sexual favours. It is a male security person. She did not state if this has or hasn’t occurred. The security officer wants to view a boy or girl having a shower.”

Reading the Nauru files, you learn that in September 2014, a girl had sewn her lips together. A guard saw her and began laughing at her. In July 2014 a child under the age of 10 undressed and invited a group of adults to insert their fingers into her vagina.

Morrison in his maiden speech in parliament said this:

“So what values do I derive from my faith? My answer comes from Jeremiah, chapter 9:24:

… I am the Lord who exercises loving-kindness, justice and righteousness on earth; for I delight in these things, declares the Lord.

From my faith I derive the values of loving-kindness, justice and righteousness, to act with compassion and kindness, acknowledging our common humanity and to consider the welfare of others…”

The Abbott government, with Scott Morrison as Immigration Minister renamed the Department of Immigration and Citizenship: it became the Department of Immigration and Border Protection.  Under Peter Dutton’s “leadership” it became Australian Border Force and was later swept into Home Affairs.  Home Affairs was established on 20 December 2017.  It combines the national security, law enforcement and emergency management functions of the A-G’s Department, the transport security functions of the Department of Infrastructure and Regional Development, the counterterrorism and cybersecurity functions of the Department of Prime Minister and Cabinet, the multicultural affairs functions of the Department of Social Services, and the entire Department of Immigration and Border Protection.  It controls the Federal Police, Border Force and ASIO.

Home Affairs is the most powerful ministry in the country, and it is headed by Peter Dutton.  It is hard to imagine a worse or more dangerous choice than to elevate a dishonest ex-cop from Queensland to the most powerful ministry in the land.  If you feel comfortable and sleep well, you clearly do not understand what is going on.

Manus

The UNHCR recently delivered a report on the state of affairs on Manus.  Their report includes these observations:

“UNHCR protection staff and medical experts observed a high level of tension and further deterioration in the mental health of refugees and asylum-seekers on Manus Island. Separation from family members and a deep-seated fear of being abandoned in Papua New Guinea by Australia without adequate support has contributed to an acute sense of insecurity and helplessness…

Caseworkers visit refugee and asylum-seeker accommodation sites for the purpose of identifying and providing support for vulnerabilities such as medical needs and mental health issues. For people who have withdrawn and are unable to seek assistance, however, no follow up interventions are made. For those with serious mental health needs, such withdrawal may in fact be a sign of greater vulnerability. There is no systematic, ongoing process to identify those at low, medium or high levels of risk, and tailor assistance accordingly. This means that those with the most significant needs have not been monitored on a regular basis since October 2017.

UNHCR staff asked diverse stakeholders who is responsible for follow up of identified vulnerable people, and received inconsistent answers. Service providers work in silos, without clear information as to the role of others – which should be complementary and coordinated.

The Government of Australia has no continuous or regular on the ground presence to coordinate and supervise the fulfilment of contractual obligations by those it has engaged to provide basic assistance and support to refugees and asylum-seekers on Manus Island. The Government of Australia, rather than the Government of Papua New Guinea, is the contracting party for all medical, security, infrastructure, garrison and caseworker services…”

The report includes recommendations:

“…The Government of Australia should ensure that a clear strategy and critical incident response plan includes significantly bolstered mental health support…

The Government of Australia should immediately identify and secure alternate durable solutions outside of the bilateral arrangement between Australia and the United States of America, including acceptance of the continuing New Zealand offer. Clear information on all appropriate available options outside of Papua New Guinea should also be communicated to refugees…

Given the increasing mental health needs of the refugee population, the number and expertise of caseworkers should be increased to a level commensurate to different degrees of risk and vulnerability…

There is an urgent need for outreach medical care, enhanced general medical and specialist mental health care. The tragic death of a Rohingya refugee on 22 May 2018 underscores the criticality of these unmet needs…”

Reza Berati

In February 2014 Reza Berati was killed on Manus Island.  Initially, Australia said that he had escaped from the detention centre and was killed outside the detention centre.  Soon it became clear that he was killed inside the detention centre.  It took nearly five months before anyone was charged with the murder of Reza Berati.

Curiously, tellingly, Scott Morrison went public after Reza Berati was killed.  He said Berati had escaped the detention centre, and had been killed by locals.  He said:

“…[T]his was a very dangerous situation where people decided to protest in a very violent way and to take themselves outside the centre and place themselves at great risk…”

By making up this lie, Morrison inadvertently disclosed a serious truth: that the locals on Manus are extremely hostile to the refugees.

Just a couple of weeks after Reza Berati was killed, I received a sworn statement from an eyewitness, Benham Satah.  The statement included the following:

“J … is a local who worked for the Salvation Army.  …  He was holding a large wooden stick.  It was about a metre and a half long … it had two nails in the wood.  The nails were sticking out …

When Reza came up the stairs, J … was at the top of the stairs waiting for him.  J … said ‘fuck you motherfucker’ J … then swung back behind his shoulder with the stick and took a big swing at Rezaa, hitting him on top of the head.

J … screamed again at Reza and hit him again on the head.  Reza then fell on the floor …

I could see a lot of blood coming out of his head, on his forehead, running down his face.  His blood is still there on the ground.  He was still alive at this stage.

About 10 or 15 guards from G4S came up the stairs.  Two of them were Australians.  The rest were PNG locals.  I know who they are.  I can identify them by their face.  They started kicking Reza in his head and stomach with their boots.

Reza was on the ground trying to defend himself.  He put his arms up to cover his head but they were still kicking.

There was one local … I recognized him … he picked up a big rock … he lifted the rock above his head and threw it down hard on top of Reza’s head.  At this time, Reza passed away.

One of the locals came and hit him in his leg very hard … but Reza did not feel it.  This is how I know he was dead.

After that, as the guards came past him, they kicked his dead body on the ground …”

A short time later, Benham Satah was taken into the Wilson Security cabin in the detention centre.  Wilson Security provide the guard services on Manus and Nauru, and in your local park.   They are incorporated in Panama, presumably to avoid the inconvenience of paying Australian tax on the vast amounts they are paid by the Australian government.  The Wilson Security people tied Benham Satah to a chair and beat him up.  They told him that, unless he withdrew his witness statement, they would take him outside the camp, where he would be raped and killed by locals.

By their threat, the Wilson Security people echoed what Morrison had conveyed: that the locals on Manus are extremely hostile to the refugees.

Several Australians involved in the killing of Reza Berati were, conveniently, able to return to Australia before any charges were laid.  The people who were, eventually, two years later, convicted of murder were somehow able to escape from prison.

Benham Satah is still on Manus, still living in fear of retribution.

The treatment of boat people in offshore detention is dreadful, and I am glad that Behrooz Bouchani will be speaking to us later: it’s our loss that he has to speak to us electronically rather than in person.

Peter Dutton recently had to deal with a suggestion that some people should be brought from Manus to Australia as a matter of compassion.  He said:

“It’s essential that people realise that the hard-won success of the last few years could be undone overnight by a single act of compassion in bringing 20 people from Manus to Australia…”

How many people in this country – how many people in this hall – would have believed it possible, even 5 years ago, that a senior Minister of the Crown would publicly dismiss the possibility of compassion?

And this from the most powerful politician in the country.  But he’s not invincible: for some years now I have publicly called him a dishonest hypocrite, but he has not sued for defamation.  I repeat it now: Peter Dutton is a dishonest hypocrite.   Dishonest, because he calls boat-people “illegal”.  They aren’t.  A hypocrite because he claims to be a Christian, but his wilful mistreatment of refugees is the exact opposite of what Christianity teaches.  And now he is arguing against compassion!

In the tumult of news we get every day, especially that rich and varied diet produced by Donald Trump, it is easy to lose sight of the fact that a Minister of the Crown urged us not to act with compassion.  He is the same person who recently reduced the social welfare entitlements of people living in the Australian community as they wait for their refugee status to be decided.  The government has just cut the Status Resolution Support Service (SRSS) program that provides a basic living allowance, casework support, help in finding housing, and access to torture and trauma counselling.  Before the cuts, the SRSS payments amounted to about 89% of Newstart allowance:  just $247 per week.

Newstart is hardly the most generous scheme in the world.  Surviving on $247 per week ($35 per day) would be unbelievably hard.  In 2016, between 28 March and 2 April, Dutton attended the UNHCR high-level meeting on global responsibility sharing through pathways for admission of Syrian Refugees.  He claimed expenses of $36,221.80 for those days.   That is, roughly $8000 per day on top of his parliamentary salary, which amounts to a bit over $940 per day ($343 thousand per year).  And since we are talking numbers, keeping refugees in offshore detention costs us about $570 thousand per person per year.  To put that in perspective, it is equal to about 44 years worth of SRSS payments.  So, if we decided to put an end to the cruelty of indefinite offshore detention, we could put every refugee on SRSS for 40 years, and actually save money.

Many members of the Coalition seek to make their anti-refugee stance look respectable, and even morally worthy, by saying that they are worried about refugees drowning, so they need to deter people from using people smugglers to get to Australia.  More hypocrisy: I do not for one minute believe them.  They are not being sincere or honest when they express concern about people drowning: if they were genuinely concerned about people drowning, they would not punish the ones who don’t drown.  They would not use the survivors as hostages, to deter others from trying to get here.

If our politicians were genuinely concerned about people drowning in their attempts to escape persecution, why are we not allowed to know the fate of people whose boats are turned back?  We are told this is an “on-water matter”.  If boats are turned back, there is clearly a risk of people drowning, but we know nothing of it.  If people are deterred from trying to come here and instead head to the Mediterranean, they still risk drowning, but we know nothing of it.  And if our deterrent measures  persuade them to stand their ground and they are killed by their persecutors, they are just as dead as if they had drowned, but we know nothing of it.

We are not well-served by our Coalition government: it has lied to us repeatedly on this issue, and has induced the country to descend into behaviour which contradicts our national values.

We are not well-served by the Labor party, which has never contradicted the Coalition’s lies.  If the Labor Party had a shred of decency, Bill Shorten would make a speech before the next election in which he would tell the nation what we are actually doing.  Imagine the impact if the Murdoch press reported Shorten saying:

“Men and women of Australia.

We are not behaving well.

Australia is paying billions of dollars a year to hold people hostage on Nauru and Manus.

They arrived in Australia seeking to be protected from persecution.  Most of them are genuine refugees.  Australia took them to Nauru or Manus by force, against their will.

For 17 years, the Coalition has, called them “illegal”.  They aren’t “illegal”.  We should have pointed out that the Coalition was lying to you.  We didn’t.  I am sorry we didn’t.

The way we are treating refugees is a betrayal of what Australia stands for.

What does this country stand for?  The statement of national values, which was introduced by the Turnbull government and is now part of the citizenship ceremony, says in part:

“I understand Australian society values respect for the freedom and dignity of the individual, freedom of religion … and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good; …”

If that is who we are, then what we are doing to refugees is simply un-Australian.

It is un-Australian to mistreat innocent people, which we are doing to people held on Manus and Nauru.

It is un-Australian to hold innocent people hostage, which we are doing to people held on Manus and Nauru.

It is un-Australian for political leaders to lie to the public in order to frighten them into tolerating the wilful mistreatment of innocent people.

If the Turnbull government was honest, it would have included something about cruelty and dishonesty in the statement of Australian value

I am sorry it has taken us so long  to tell you truthfully what is being done in your name…”

But somehow I don’t think Bill Shorten has the courage to make a speech like that.

And, if I may return to the issue of climate change, here’s a thought to finish on.  If the Tony Abbott attitude to climate change ultimately prevails, then in 8 or 10 generations we will all be history.  The collapse of agriculture and of complex supply lines will spell the end for most members of the human race.  Presumably there will be some survivors: the Kalahari bushmen, the Inuit, the outback aborigines…

So: if the Tony Abbott view of climate change ultimately prevails, the Aborigines will get their land back.   I’m not sure that is what he intends.

 

This is how our decency is degraded

A friend reminded me recently of a great observation about the process by which our decency is degraded.  Looking at what has happened in Australia, courtesy of Howard, Ruddock, Rudd, Gillard, Abbott, Morrison, Turnbull and Dutton, and what has happened recently in America because of Trump, it is sadly familiar.

Milton Mayer, They Thought They Were Free: The Germans 1933-1945:

“…Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don’t want to act, or even talk, alone; you don’t want to ‘go out of your way to make trouble.’ Why not?-Well, you are not in the habit of doing it. And it is not just fear, fear of standing alone, that restrains you; it is also genuine uncertainty.  […]

But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That’s the difficulty. If the last and worst act of the whole regime had come immediately after the first and smallest, thousands, yes, millions would have been sufficiently shocked-if, let us say, the gassing of the Jews in ’43 had come immediately after the ‘German Firm’ stickers on the windows of non-Jewish shops in ’33. But of course this isn’t the way it happens. In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next. Step C is not so much worse than Step B, and, if you did not make a stand at Step B, why should you at Step C? And so on to Step D.

And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self-deception has grown too heavy, and some minor incident, in my case my little boy, hardly more than a baby, saying ‘Jewish swine,’ collapses it all at once, and you see that everything, everything, has changed and changed completely under your nose. The world you live in-your nation, your people-is not the world you were born in at all. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. Now you live in a system which rules without responsibility even to God.”