Too few Australians know about the case of Witness J – not to be confused with the case against Witness K and Bernard Collaery, itself a disgraceful overreach of the law. But a veil of secrecy shrouds the case of Witness J that should be of concern to all of us.
J, a former ASIS officer, was secretly tried in Canberra, and secretly sentenced to a term of imprisonment at the Alexander Maconochie Centre in the ACT. He was placed in a section of the gaol reserved for sex-offenders, even though his offence was not a sex offence.
When the facts of all this first emerged in November 2019, even the ACT Attorney-General was unaware of Witness J’s case. It was only through a civil action brought by J against the general manager of the prison in which he served his secret sentence that we have been able to glean a few facts.
To follow the trajectory of Australian politics since Scott Morrison came to power has been to watch a storm cloud of secrecy descend over Canberra. The case of Witness J — a former ASIS officer who was tried and imprisoned in secret — is an unnerving insight into the current state of politics in this country.
Open Government – From Secrecy to Accountability, and back again:
Transparency from elected officials may seem like a self-evident good. However it is useful to understand the history of political secrecy in Australia — and that it has not always been the norm.
The history of government secrecy can be traced back to a time when monarchs were motivated by a desire to keep official information out of the public sphere, for fear it would weaken their rule whilst strengthening their rivals.[i] Official information was deemed the property of the Crown, and could be disclosed or withheld arbitrarily.[ii] Along with parliamentary democracy and the adversarial system of trial, Australia also inherited a culture of political secrecy from Westminster.[iii] Following World War II, technological advances allowed the Federal Government to process large volumes of information in a way previously impossible. Many federal ministers had served in World War II and returned to Australia suffused with ‘the military’s respect for secrecy.’[iv] This shift towards procuring, storing, and utilising information within government departments profoundly altered the relationship between citizens and government. Information had suddenly become a commodity; an ‘object in its own right, as well as a dimension of government activity.’[v]
As the scope of government data collection increased, so too did the accompanying secrecy provisions to safeguard this data. The Privacy Act 1988 (C’th) was enacted to protect the growing trove of sensitive personal and commercial information held by the government. Perhaps inevitably, the burgeoning amount of information amassed by the government led to a public pushback and a demand for transparency; the more government encroached into the lives of Australian citizens, the more Australians demanded accountability from elected officials.
From this civic tension, the principle of ‘open government’ arose.[vi] A Royal Commission into the Commercial Activities of Government in 1992 concluded that: “The purpose of [accountability] measures is to hold governments, public officials and agencies to account…Government is constitutionally obliged to act in the public interest.”[vii] The House of Lords summarised things succinctly when emphasising the importance of open government and open justice in preventing corruption and misconduct in the case of R v Shayler[viii]: “[Open government] may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant.” Witness J is an example of what can germinate in the dark when a government seeks to hide its activities from public scrutiny.
Open Justice & Secret Trials:
As the Executive has oscillated between secrecy and transparency — and, recently, back again under the Coalition — the gold standard for transparency has always been open justice in the judiciary. The High Court spoke plainly in the case of Commissioner of the Australian Federal Police v Zhao[ix] in stating ‘…court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.’
Exceptional circumstances, perhaps such as those in the case of Witness J. However, it is impossible to know the circumstances of Witness J’s case because the trial was conducted in complete secrecy, and all information regarding proceedings and Witness J’s identity are subject to suppression orders. Staggeringly, Witness J himself — who pled guilty to the crime he was charged with — was unaware of the court orders he faced, even while imprisoned. It was not until an unsuccessful civil claim against the general manager of AMC, that Witness J learnt of the court orders made against him. To reiterate, Witness J served 15 months in prison without knowing the full extent of the court orders made against him.
As Gibbs J said in Russell v Russell,[x] “[Openness] distinguishes [judicial] activities from those of administrative officials, for publicity is the authentic hallmark of judicial as distinct from administrative procedure. To require a court invariably to sit in closed court is to alter the nature of the court.” Gibbs J’s judgment identifies publicity as one of the key distinctions between judicial and administrative procedure. How, then, does a secret trial occur in a nation which upholds the common law principle of open justice?
To understand how flagrantly open justice has been contravened by the Federal Government in the case of Witness J, it is helpful to understand what exactly it is. Open justice requires that:[xi] proceedings are conducted in an open court, information presented in court is communicated publicly to those present in court, and nothing is to be done to discourage fair and accurate reporting of judicial proceedings.[xii] None of the three substantive markers of open justice were present in the case of Witness J, who was charged and sentenced in closed court, left unaware of the orders he faced, and banned from speaking publicly about his matter.
Exceptions to Open Justice:
There are, of course, limitations to open justice, the most predictable of which is national security.[xiii] The Criminal Code[xiv] allows judicial discretion in making suppression orders and excluding the public from proceedings if it satisfied this is in the interest of the security or the defence of the Commonwealth. Justice Kirby stated in John Fairfax Group v Local Court of New South Wales[xv]: ‘…the open administration of justice serves the interests of society and is not an absolute end in itself.’ If the openness of judicial proceedings would detract from the attainment of justice in the case itself — including by endangering national security — then, ‘…the rules of openness must be modified to meet the exigencies of a particular case.’[xvi]
The National Security Information (Criminal and Civil Proceedings) Act[xvii]allows courts to close themselves off to the public — in the same manner detailed in the Criminal Code — to prevent the disclosure of information likely to prejudice national security. Further, it actually specifies — in any event where open justice and national security are irreconcilably opposed — the latter must be given ‘greatest weight.’[xviii] It is noteworthy that, in 2013, the Independent National Security Legislation Monitor (INSLM)[xix] suggested that s31(8) be repealed, so as to rebalance judicial perception when dealing with national security matters.
In R v Lodhi,[xx] Whealy J commented on the friction between open justice and national security, stating that legislation such as the National Security Information Act, gives more ‘comparative weight [to national security than open justice]…but the discretion remains intact.’ Whealy, whose reasoning was upheld on appeal to the NSW Court of Criminal Appeal, presciently stated: ‘The court’s task is to ensure that the accused is not dealt with unfairly…I see no reason why the same degree of vigilance, perhaps even at a higher level, would apply to the Court’s scrutiny of the Attorney’s specific certificate in a s31 hearing.’[xxi] Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), simply states that ‘…judgment in a criminal case shall be made public.’
Conclusion: Although federal legislation does allow for the judiciary to close itself off from the public under the pretext of national security, this is not a gateway to the denial of open justice itself. Former NSW supreme court judge Anthony Whealy has described the treatment of Witness J as a “complete abandonment of open justice.”[xxii] Even with legislation explicitly compelling judges to give greater weight to secrecy provisions than common law principles of open justice in national security measures; the rights of the accused to be dealt with fairly are absolute.
And for years, Witness J’s lawyers have been waiting to receive copies of relevant documents: they’re still waiting.
[i] E Campbell, ‘Public Access to Government Documents’ (1976) 41 Australian Law Journal 73, 77
On 19 August 2021, Pearls & Irritations published a piece by Stuart Rees titled “Biloela and Assange: compliance with governments, not justice”
While I generally agree with Stuart, there was a misconception at the heart of his piece.
It is true that we have, in Australia, something which is generally referred to as a “Justice System”.
Lawyers typically refer to “the Legal System”. That is more accurate because, in theory at least, the legal system is the mechanism by which justice is achieved.
The basic point made by Stuart Rees is that the decisions of our Courts frequently show little sign of Justice. In his opening paragraph, he says:
“The Australian High Court has turned down four year old Tamil Sri Lanka Tharnicaa Murugappan’s appeal for a visa and the chance of returning to her previous home in Biloela, Queensland. In the Judges’ deliberations, the uncertainties and cruelties experienced by this child and her family apparently counted for nothing.”
Later, in relation to the High Court decision in AJL20, he says:
“This dismaying High Court decision emerges in the same political culture affecting deliberations about the Tamil, Biloela family. In that culture, deceit born of a desire to punish has not affected any concern with justice. Although Tharnicaa and her sister Kopika were born in Australia, they have been registered as born in Sri Lanka, a bureaucratic manipulation to make it easier to deport them.
I agree with Stuart’s dismay at the court decisions in relation to Tharnicaa and AJL20. There are many court decisions I am not happy with. But it is a very different matter to suggest that our Judges are not interested in Justice.
Personally, I have never encountered a Judge in our system who let ideological views colour their judgment. To the contrary, all the judges I know of are diligent and careful, and do their job to the best of their ability, without any preconceived views. To the contrary, all the judgments I have read (and I’ve read thousands) are the result of careful legal analysis. Since the 17th century, in England, the role of Judges has been to interpret, and apply, the law.
There are many theories of Justice, but the one embraced in the Anglo-Australian-American system is that justice requires a fair process and an independent decision-maker. In Australia we are lucky: our Judges are skilled and conscientious; they are independent of the government which appoints them, and which pays their salary. The same cannot be said in some jurisdictions outside Australia.
Since the early 18th century, in England (and, subsequently, in Australia) the ultimate power to make laws lies with the Parliament. If the Parliament makes laws which operate unjustly, then the only relevant questions for a Judge to deal with are:
Is the law Constitutionally valid?
Does the law apply in the circumstances of the case?
If Yes to questions 1 & 2, how does the law operate in the particular case?
If the result of those questions is perceived as contrary to Justice, the fault (in our system) is not the fault of the Judges, it is the fault of the parliamentarians who made the law.
The area which arouses Stuart Rees’ concern is the Migration Act. I share his concern.
There are at least three aspects of the Migration Act which give rise to injustice:
The Minister’s discretion to allow (or refuse) to grant permission to apply for asylum;
The Minister’s discretion to revoke a visa in certain circumstances.
Most injustice in Australia is the result of bad laws, implemented by dishonest, unscrupulous, parliamentarians.
It is not widely noted that the trial judgment in the Tampa case was handed down in Melbourne at 2.15pm on 11 September 2001, just hours before the 9/11 attacks on America. At the time, John Howard was PM and Philip Ruddock was immigration Minister.
It was a later PM, Scott Morrison, who, as Immigration Minister under Tony Abbott, spoke of the refugee issue as one of “Border Protection”.
So, after the Tampa episode, people seeking to exercise their right to seek asylum (under Article 14 of UDHR) were disparaged as “illegal” and were locked up ostensibly to “protect our borders”.
Mandatory detention was introduced in 1992 by the Keating (Labor) government. The relevant parts of the Migration Act, as it presently reads, are as follows:
Section 189 – Detention of unlawful non-citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Section 196 – Duration of detention
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. …
There are, in fact, 2 streams of people who come here from other countries and seek asylum. First, the aeroplane-people, who are able to come here on a visa (for tourism or business or study etc.). Typically, they come from countries which are not notorious for generating refugees. They can come here by plane, which is much cheaper, safer and more comfortable than using a people-smuggler. Once they arrive, they can clear passport control easily, as they have a visa. Then they can apply for a protection visa, but they are allowed to live in the community. Their asylum claims are accepted in 30-40% of cases.
The other stream is the boat-people, who can’t get a visa to come to Australia, so they can’t come here by plane: they use a people-smuggler to come here by boat. We lock them up or (since mid-2013) we force them offshore, to Nauru or to Manus Island (part of Papua New Guinea). Until forced offshore processing became part of our law in mid-2013. Their asylum claims are accepted in more than 90% of cases.
So: we are untroubled by people who are probably not refugees, but we lock up and vilify the ones who probably are.
And it does not stop there.
Akram Al Masri came to Australia seek protection. In 2002 the Federal Court ruled that the then immigration minister did not have the power to detain Mr Al Masri before his deportation from Australia. On appeal to the Full Federal Court, it was held that if he was not given a protection visa, and was not removed from Australia, he could be locked up for the rest of his life. As it happens, he was refused a protection visa and was removed from Australia and sent back to Palestine. He was killed in the Gaza strip.
Ahmed al-Kateb was a stateless Palestinian. He came to Australia in 2000 as a boat-person. The Migration Act, section 196, provides, in effect, that a person who is an ‘unlawful non-citizen’ (ie a non-citizen without a visa) must be kept in immigration detention until the person is removed from Australia, or deported, or granted a visa.
Al-Kateb was in detention for 3 years, but he was refused a visa and was not able to go to any other country at all, because he is stateless. For the duration of his legal challenge, al-Kateb was allowed to live in the community, with no work rights and no access to Medicare. By a majority of 4:3, the High Court held that the purpose of Mr Al-Kateb’s detention was administrative and, so understood, was not punitive. Accordingly section 196 was constitutionally valid, and they held, in substance, that al-Kateb could remain in detention for the rest of his life, if necessary. The result, in my view, was unjust, but the injustice was the work of the politicians, not the Courts. The Minister for Immigration at the time could have released al-Kateb into the community.
Mandatory detention can be in a detention centre, or in the community: it’s a matter for the Minister.
The existence of Ministerial discretion is a matter of particular concern, as Stuart Rees notes:
“In the mostly invisible deliberations about a visa for Tharnicaa, the little girl is fighting a law that states she cannot even apply for a visa unless the Minister exercises his discretion to allow it. Legal casuistry beyond belief and difficult to comprehend.”
Bad laws may have the sharpest edges taken off them by the Minister’s discretion. The Minister for Immigration has a very wide discretion in most matters, and certainly has the power to produce a just result, where strict application of the Act would produce an unjust result. But the Minister will not use that discretion if he or she is one of the many parliamentarians who, in the Australian system, are dishonest idealogues devoted to pursuit of their personal or religious goals, despite the injustice.
It is interesting to see the behaviour of Morrison and his current Immigration Minister, Alex Hawke. Both are, or claim to be, Christians. Christian teaching has taken a battering over the past 2000 years, but deliberate cruelty was never part of it. Nor was dishonesty.
So it is interesting to see Morrison and Hawke engaged in both cruelty and dishonesty in relation to refugees.
Calling asylum seekers “illegal” is dishonest. Yet, the most recent voyage into that dishonesty was recent: on 15 June 2021 Alex Hawke issued a Press Release concerning Tharnicaa’s family. In its final paragraph it said:
“The Government’s position on border protection has not changed. Anyone who arrives in Australia illegally by boat will not be resettled permanently. Anyone who is found not to be owed protection will be expected to leave Australia.” (emphasis added)
There is nothing at all in our Migration Act, or elsewhere in our legislation, which makes it an offence to come to Australia (as a boat person, or otherwise, to seek asylum. After compulsory offshore processing became part of our law, a man arrived in Australia seeking protection from persecution. He was sent to Manus. The PNG authorities fairly soon accepted his asylum claim and recognised that he was a refugee. After about six years in detention on Manus, he developed a cardiac problem, which the PNG system was unable to treat. Under the now-repealed medevac legislation, Australia brought him here for treatment. He was put in detention, until about a year later, when he was sent to America under our refugee-swap agreement. He had spent about 7 years in detention, and never received the cardiac help he was brought to Australia for.
Our immigration detention centres are filled with people, described by our unscrupulous politicians as “illegal”, who have never been charged or tried as a consequence of their mode of arrival in Australia.
The conditions in immigration detention are so harsh, they can fairly be described as cruel. Many Australians have been “locked down” during parts of the past 18 months, because of the Coronavirus pandemic. At the time of writing this, Victorians have been in lockdown for a total of 200 days. That doesn’t stop us from going out for exercise, or going to the shops for necessities. Imagine then how it would feel to be held in detention for years on end, without having committed any offence and without the right to go out for exercise, or go to the shops for necessities.
Consider the circumstances of this man: Amin arrived in Australia in March 2001with his daughter. They were held in Curtin, then in Baxter.
On the 14th of July 2003, 3 ACM guards entered Amin’s room and ordered him to strip. He refused, because, apart from it being deeply humiliating for a Muslim man to be naked in front of others, his daughter (who was then 7) 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.
Officially, solitary confinement is not used in Australia’s detention system. Officially, recalcitrant detainees are placed in the Management Unit. The truth is that the Management Unit at Baxter is solitary confinement bordering on total sensory deprivation. I have viewed a video tape of one of the Management Unit cells. It shows a cell about 3 ½ 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 was allowed a visit, or he could go into a small exercise area where he could see the sky.
No court had found him guilty of any offence; no court had ordered that he be held this way. The government insists that no Court has power to interfere in the manner of detention. Of course, the Minister could, but the Minister’s discretion is not subject to Court control.
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. The manager of Baxter explained to him that she had been taken shopping in Port Augusta; that she would visit him next day.
But the next day, 24 July, his daughter did not arrive for her visit: the manager explained to him that his 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.
Amin remained in detention for another 8 weeks. It took 3 applications in court to get him released. The government did not contradict the facts or try to explain why they had removed his daughter from the country: they argued simply that the court had no power to dictate how a person would be treated in detention.
The judge found otherwise and ordered that Amin be removed from solitary confinement and be moved to a different detention centre.
The government appealed.
This is our taxes at work: tormenting innocent people, in ways that offend every decent instinct – and for what? To deter people smugglers. The HREOC report into Children in Detention concluded that the treatment of children in Australia’s detention centres was “cruel, inhumane and degrading”, and that it constituted systematic child abuse. The Minister did not seek to deny the facts or the findings: instead, she said simply that it was “necessary”, that the alternative would “send a green light to people smugglers”.
So, that’s what our dishonest, unscrupulous politicians do.
It’s not that, in our courts, “the uncertainties … count for nothing. “ Rather, the Judges simply apply the law.
The people should be criticised are our politicians who pass, and implement, bad laws without considering the real human effect of what they do.
The behaviour of people like Morrison and Hawke makes their claims to be Christian look utterly false.
The Taliban have taken control of Afghanistan. The Hazara people are at serious risk of genocide right now. It is important that early warnings are taken seriously by the international community.
The trauma and experience of war is not the same for everyone in Afghanistan. Some ethnic groups might trace it back 40 years. Others, particularly Hazara, would disagree as their collective memory of stretches back hundreds of years. Hazara have experienced several mass killings (arguably genocide) that never made the official records or history books. The first recorded Hazara mass killings date back to the 1890s. The founder of Afghan state, Abdur Rahman Khan, arranged the killing of around 50% of the Hazara population: they were either slaughtered or forced to leave their lands. Jonathan L. Lee wrote:
“According to some estimates more than 50 per cent of the male Hazara population died as a direct or Indirect result of the wars. Thousands of women were forcibly married to Pashtuns in a deliberate attempt to destroy Hazara social and religious hierarchies. The Hazara populations of (various parts of Afghanistan) were expelled and their land distributed to Muhammadzais, Ghilzai maldar and government loyalists.”
The people now known as Hazara, were originally Bhuddists: they built the famous Bamiyan Bhuddas. They eventually converted to Islam, but they became Shi’a Muslims. The Taliban are principally Sunni Muslims. The distinction is like the division between Catholics and Protestants which, historically, has been the source of significant difficulties.
DFAT says that around “60% of the entire Hazara population were eliminated in different ways, most often by killing, selling into slavery or forcing into exile by the Abdur Rahman Khan.
According to Henry Walter’s 1880 book “The Races of Afghanistan” Hazara occupied all the land which formed the Paropamisus of the ancients: it covered most of the area now called Afghanistan and Pakistan. No longer: historical mass killings and atrocities have resulted in Hazara being forcibly displaced. A significant number of Hazara refugees now live in Australia, Europe and America.
The term “genocide” was originated by Raphael Lemkin (a Jewish-Polish lawyer), as “the criminal intent to destroy or to cripple permanently a human group. The acts are directed against groups as such, and individuals are selected for destruction only because they belong to these groups.” With that meaning, the UN Genocide Convention came into effect in January 1951.
One significant element of genocide is that perpetrators committed an act with an “intention to destroy” a particular group. It is not hard to understand why the crime of genocide was adopted by the UN, given the horrors of the Holocaust.
The intention to destroy Hazara was expressed plainly in the 1990s when Mullah Abdul Manan Niazi, a former Taliban spokesperson, said:
“Hazara! Where are you escaping? If you jump into the air we will grasp your legs, if you enter the earth, we will grasp your ears. Hazara are not Moslems. You can kill them. It’s not a sin. Oh Hazara, become Moslems and pray God as us. We won’t let you to go away. Every border is in our control.”
Similar thoughts were expressed a century earlier, during the 1880s by Abdur Rahman Khan, who wrote to his secretary of the Sharia Law Court: “What do you know about the nature of this tribe [Hazara]? Their belief will never get right.”
There is a historical order and structure in the elimination of Hazara started by Abdur Rahman Khan and continued and maintained by the Taliban today. For example: “Taliban militiamen searched house to house for males of fighting age who belonged to the Hazara ethnic minority. Hazara were gunned down in front of their families and had their throats slit in the same way Muslims slaughter goats for holiday feasts.” In June 2021 Taliban searched room to room only killing Hazara workers leaving other employees unharmed.
In March 2001, the Taliban destroyed the Bamiyan Bhuddas, which had been built centuries before by Hazara.
In 2018, Daesh sectarian-violence against the Hazara minority escalated. According to the USCIRF, the ISKP attacks on the Shia have been more lethal than others and left some 300 fatalities in 2018.
Between 1 January and 30 November 2019, UNAMA documented seven IS- claimed attacks against Shias, causing 112 deaths and 361 injuries. The attacks were carried out against education centres, hospitals and tuition institutions.
In July 2021, Taliban killed a Hazara shepherd immediately after he identified himself as Hazara.
Recent Amnesty reports, about crimes committed against Hazara by Taliban, said:
“In Mundarakht, they were stopped at a Taliban checkpoint, where they were executed. Ali Jan Tata was shot in the chest, and Rasool was shot in the neck. According to witnesses, Zia Faqeer Shah’s chest was so riddled with bullets that he was buried in pieces. The men’s bodies were thrown into the creek alongside Sayed Abdul Hakim.”
The past few years have been deadly for the Hazara minority in Afghanistan.
The historical, and recent, killings of Hazara have been overlooked by the International community for many years. Those who survived the 1890s war against Hazara fled to central Asian countries. The historical atrocities against Hazara were not talked about.
There has been a record number of deaths and injuries in Afghanistan this year: so far, more than 5000, mostly women and children.
With return of Taliban to power, fear for the Hazara minority escalates. It is possible that the future will hold another genocide for Hazara.
The Genocide Convention set out the legal obligation of state parties to prevent and punish genocide. The Office on Genocide Prevention and the Responsibility supports two special advisors who can report directly to the UN Secretary-General. The special advisors “raise awareness of the causes and dynamics of genocide, to alert relevant actors when there is a risk of genocide, and to advocate and mobilize for appropriate action.”
The onus is on the international community to help prevent potential crimes against humanity, ethnic cleansing and genocide.
If a state fails to protect its population, the international community must be prepared to take collective action, in a timely and decisive manner and in accordance with the UN charter.
We cannot ignore the danger faced by Hazara in Afghanistan right now. About 5000 Hazara live in Australia as refugees. If we are not seen to be helping the Afghans trying to escape the Taliban right now, we will undoubtedly cause great anguish and mental harm to the Hazara who live here and contribute to our community. And we need to offer them more than temporary protection: if we are serious about avoiding genocide, and if we want their commitment to our Society, we need to give the Afghan refugees permanent protection, right now.
This is the text of a speech I gave for Agora (a Cyprus-based organisation) in October 2021
Early life and education
Ruth Bader Ginsburg was born on March 15, 1933, to Jewish parents with Eastern European roots:
Her father (Nathan Bader) was a furrier from the Ukraine. His business was hit hard by the depression.
Her mother‘s parents had moved to America from Poland. She was a factory worker, and later a bookkeeper. Ginsburg was once asked ”What’s the difference between a bookkeeper and a Supreme Court Justice?” and she replied “A generation.”
Ginsburg’s mother died on the day Ginsburg graduated from high school.
She instilled in Ginsburg a sense of independence and a love of learning. She took her to the library throughout her childhood and stocked up the family’s supply of books.
Ginsburg recalls, “My mother told me two things constantly. One was to be a lady, and the other was to be independent. The study of law was unusual for women of my generation. For most girls growing up in the ’40s, the most important degree was not your B.A., but your M.R.S.” (MRS degree: A marriage resulting from going to university with the sole purpose of getting married and consequently not completing the course.)
She was born and raised in Brooklyn, New York, and with her parents, she attended the East Midwood Jewish Centre, a Conservative synagogue.
For a woman who became famous for her dissenting judgments on the Supreme Court, she had a natural sense of being in a minority: she was Jewish, and a woman.
It is easy to forget that, during the 1930s, anti-Semitism was virulent in America: Charles Coughlan and Gerard Winrod publicly condemned Jews, and in 1938 a poll reported that 60% of Americans had a low or very low opinion of Jews. And it is easy to forget how women were treated in America – and here – until recent times. After all, Gloria Steinem first wrote about Women’s Liberation in 1969. And that was the year Germaine Greer published The Female Eunuch. It is easy to forget how Women’s Lib was viewed back then.
Ginsburg went on to study at Cornell University, where at the age of 17, she met her future husband, Martin ‘Marty’ Ginsburg. They met on a blind date. They married after graduation, and soon had a daughter, Jane.
Ginsburg said of Marty: “He was the only boy I ever knew… who cared that I had a brain.”
Soon after the birth of Jane, RBG entered Harvard Law School, where she was one of only 9 women in a class of over 500. Ginsburg attended law school, not for women’s rights work, but, as she said, “for personal, selfish reasons. I thought I could do a lawyer’s job better than any other. I have no talent in the arts, but I do write fairly well and analyze problems clearly.”
But her feminist instincts were honed by her law school experiences. She and the other few women studying at Harvard met a lot of resistance, and often hostility, from senior faculty members. For instance, in 1956, the Dean of Harvard Law infamously asked Ginsburg and her 8 other female classmates why they were occupying seats that would otherwise be filled by men. Ginsburg’s female co-classmates have since reported on the experience of being a woman at Harvard as being treated as an oddity, and with a lot of hostility.
During her time at Harvard, RBG’s husband Marty Ginsburg was diagnosed with testicular cancer. During his illness and treatment, Ginsburg attended all of Marty’s classes, as well as her own, and typed all his papers – alongside caring for their daughter and aiding him while he was ill. Even with these immense responsibilities, Ginsburg won a coveted seat on the Harvard Law Review. Making Law Review at both Harvard and Columbia Law School was an unprecedented feat by any student, male or female.
Ginsburg was top of her class at Harvard and, typically, got no more than three hours of sleep per night, because she had a baby to care for, and Marty to look after. Marty recovered and secured a prestigious role as a tax lawyer in New York. He was later recognised as the most significant tax lawyer in America.
Early legal career
In her 2nd year of law school, Ginsburg worked for a top tier law firm in New York where she thought she had done a terrific job and was expecting a job upon graduation; but, despite her performance, there was no job offer. Neither did Ginsburg receive a job offer from any of the 12 law firms with which she interviewed; only 2 gave her a follow-up interview.
Ginsburg tied for first in her class when she graduated from Columbia Law School. Her Harvard professor Albert Sachs recommended her for a clerkship with Supreme Court Justice Felix Frankfurter. He wasn’t ready to hire a woman and asked Sachs for a male recommendation. A mentor, law professor Gerald Gunther, was determined to place RBG in a federal clerkship, despite what was then a grave impediment. Gunther advised Judge Palmieri, of the US District Court for the Southern District of New York, that if he didn’t take Ginsburg, Gunther would never send him a clerk again. Palmieri ultimately accepted her as his clerk. She held this role for two terms, rather than one, from 1959 to 1961.
After her role as a clerk for Judge Palmieri, Ginsburg was offered law firm roles but chose to work on Columbia Law School’s International Procedure Project instead. She spent a year in Sweden to do this and learned Swedish for the purpose. As part of the project, she co-authored a book on Sweden’s legal system and translated Sweden’s Judicial Code into English.
In 1963, Ginsburg joined the faculty of Rutgers Law School where she discovered that her salary was lower than that of her male colleagues doing the same work. On discovering this, she joined an equal pay campaign with other women teaching at the university, which resulted in substantial pay increases for all the complainants.
Work at the ACLU
Prompted by her own experiences, Ginsburg began to handle sex discrimination complaints referred to her by the New Jersey affiliate of the American Civil Liberties Union (ACLU). At ACLU she established the Women’s Rights Project. Later, when she was a Supreme Court Justice, she said: “Women’s rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.”
The ACLU had been lukewarm towards women’s rights issues; it took a person with Ginsburg’s vision and leadership to establish the Women’s Rights Project. Ginsburg was steadfast in her belief that men and women would “create new traditions by their actions, if artificial barriers are removed, and avenues of opportunity held open to them.”
In the 1960s at the ACLU, Ginsburg wrote a brief in the case Reed v. Reed. Sally Reed had separated from her husband, and when their son died, both parents sought to be appointed as executor of his estate. Idaho law automatically appointed the father as executor, because he was a man.
The co-authors of the brief were: Dorothy Kenyon, an early advocate for women’s rights, and Pauli Murray, a brilliant African American activist who had pioneered the argument for applying the 14th Amendment to women’s rights. Ginsburg learned a lot from them.
The 14th Amendment was inserted in the US Constitution at the end of the Civil War. It has 5 sections but, crucially, the first section is the so-called Equal Protection clause. It provides:
Q1Aààà “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
During Reed v Reed in 1971, only nine women had been appointed to the federal bench in all of American history. None of these women had sat on the Supreme Court. So RBG had to convince a panel of nine male, establishment-oriented judges for gender equality. As a progessive leader in advocating for inequity, RBG had an ability to see cases through the eyes of someone who was skeptical of her position, but who was also capable of persuasion.
Similarly, Ginsburg wrote a seminal amicus brief in Craig v Boren (1976), a Supreme Court decision holding that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The plaintiff in Craig was a man who challenged an Oklahoma law permitting women to buy low-alcohol beer at age 18, but not men. Ginsburg’s goal was to convince the Court to hold that the government ‘must not rely on overbroad generalisations’ about the different talents, capacities, or preferences of males and females” when it makes law. The Supreme Court ultimately ruled that statutory or administrative sex classifications were subject to intermediate scrutiny under the Fourteenth Amendment.
Justice Ginsburg argued in many cases that the Fourteenth Amendment’s equal protection clause extends to freedom from gender discrimination, that included both sexes. Her first big case as an advocate was a challenge to the law, whereby a man, Charles Moritz, was unable to claim a tax deduction for the care of his elderly mother. The deduction, by statute, could only be claimed by women, or widowed or divorced men. But Moritz had never married. The tax court concluded that the Internal Revenue Code was immune to constitutional challenge. But RBG considered that, rather than invalidate the statute, it should be applied equally to both sexes. She won in the lower courts.
The government petitioned the U.S. Supreme Court, saying that the decision “cast a cloud of unconstitutionality” over literally hundreds of federal statutes, and it attached a list of those statutes, which it compiled with Defence Department computers. Those laws, Marty Ginsburg noted later, “were the statutes that my wife then litigated … to overturn, over the next decade.”
Much later, Ginsburg noted that the government list had saved her a lot of work.
The fundamental rights which are guaranteed by the Constitution include: voting, reproductive freedom and the right to travel interstate. The “fundamental right” concept has limited utility in gender discrimination cases, where, often, the female complainant has no right to a particular privilege, benefit or advantage. Sex, like race, is a visible, immutable, biological characteristic that has no nexus to ability.
RBG considered Reed v. Reed the turning point for women in gender discrimination for women in the Supreme Court. Ginsburg represented Sally Reed, who thought she should be the executor of her son’s estate instead of her ex-husband. The constitutional issue was whether a state could automatically prefer men over women as executors of estates. A strict scrutiny test applied, rather than what the court considered the ‘rational’ basis. It was argued that this was justified by a compelling government interest. The unanimous decision was in Sally Reed’s favour. It was the first time in US history that the Supreme Court had struck down a state law because it discriminated based on gender and upheld a woman’s compliant of constitutional gender discrimination.
The Supreme Court ruled for Sally Reed in 1971, the first time it would strike down a law for treating men and women differently. The court ruled that giving a mandatory preference to one sex is “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” In an ACLU memo, Ginsburg called the victory “a small, guarded step.”
In 1972, the ACLU Women’s Rights Project was born under Ginsburg’s leadership, in order to remove these barriers and open these opportunities. She became the project’s general counsel, as well as serving on the national board of the ACLU. At the time, she was writing the first textbook on sex discrimination law, Text, Cases, and Materials on Sex-Based Discrimination, published in 1974.
In 1972, Ginsburg also became the first woman to be granted tenure at Columbia Law School.
“She told the story of sex discrimination — how it had been and how it had to end.”
In 1973, Ginsburg took on another Supreme Court case. Sharron Frontiero was an Air Force officer whose husband, Joseph, had been denied the housing and medical benefits that female spouses of male Air Force officers received automatically. In writing which was both muscular and spare, Ginsburg expanded the scope of her brief to encompass the history of women’s subjugation, with references to Alexis de Tocqueville and Alfred Lord Tennyson, and pared down the language to a precise and devastating argument. Brenda Feigen was a close colleague of Gloria Steinem, and was then co-directing the Women’s Rights Project with Ginsburg. She said of Ginsburg’s submissions in Frontiero:
“That’s when it dawned on me how brilliant she is, She was at her most creative and profound. She told the story of sex discrimination — how it had been and how it had to end.”
Of her appearance in Frontiero Ginsburg said:
“I knew that I was speaking to men who didn’t think there was any such thing as gender-based discrimination and my job was to tell them it really exists.”
To make the point to the nine men who were sitting on the bench, she quoted the nineteenth-century women’s-rights advocate Sarah Grimké: “I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.” She won the case. Brenda Feigen, who was by Ginsburg’s side in the court, said later:
“There was not a single question from any of the justices. They must have been transfixed.”
She won in Frontiero, even though, as amicus curiae, she had just 12 minutes of argument time.
Social Security cases illustrated how discriminatory laws, designed to help women, can harm men. In Weinberger v. Wiesenfeld, RBGs represented a man whose wife, the principal breadwinner, died in childbirth. The husband sought survivor’s benefits to care for his child, but under the then-existing Social Security law, only widows, not widowers, were entitled to such benefits. successfully challenged a law that denied widowers benefits that Wiesenfeld would have received if he were a woman that lost her husband.
Under the relevant legislation, a widow would have automatically collected these benefits, but Stephen Wiesenfeld did not, because they were considered “mother’s benefits.”
In Weinberger v Wiesenfield, Ginsburg was carrying out a far-sighted legal strategy in the pursuit of women’s rights: targeting a law that ostensibly benefited her sex and disadvantaged men.
On 20 January 1975, Ginsburg stood before the US Supreme Court to argue Wiesenfield’s case.
At the time, women accounted for barely 5% of the attorneys who had argued in front of the highest court in the country.
On behalf of her client, Ginsburg was fighting laws borne of a time when women generally were not expected to work unless circumstances forced it, while men were expected to see worth and obligation in their outsized ability to earn money. She understood what it was like to suffer on account of being in a minority.
In arguing why the unequal treatment of the sexes was wrong, Ginsburg famously said that such “a gender line … helps to keep women not on a pedestal, but in a cage. It reinforces,” she continued, “the assumption that working for pay “is primarily the prerogative of men.”
Wiesenfeld won by a unanimous ruling that became a milestone in the feminist movement’s push to level the playing field, at work and at home.
Treating earnings as less or different because they were a woman’s and not a man’s was now contrary to equal protection under the law.
About 35 years after her argument in Weinberger v Wiesenfield, in the same courtroom where that case was heard, Ginsburg sat as the second woman to ever be appointed a Supreme Court Justice.
She served 27 years at the US Supreme Court, becoming its most prominent member.
She was the second female justice and the first Jewish woman ever appointed to the U.S. Supreme Court.
In 1980, President Jimmy Carter appointed Ruth Bader Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit.
She was expected to be a liberal firebrand, but ultimately demonstrated the caution of a common-law constitutionalist. She became friends with Antonin Scalia, who was a judge on the same court, and often joined with him and Robert Bork in their opinions. Scalia was elevated to the Supreme Court in 1975, two years after Ginsburg. They remained good friends, but rarely agreed.
After Ginsburg had served 13 years on the Court of Appeals, President Bill Clinton appointed her to the Supreme Court of the United States, in 1973.
Ginsburg was only the second woman to be named to the Supreme Court, following Sandra Day O’Connor, and she was the first Jewish woman to serve.
On the bench of the Supreme Court, Ginsburg continued to fight for full gender equality under the 14th Amendment of the US Constitution.
In 1996, Ginsburg wrote the decision in United States v Virginia, striking down the male-only admission policy at the Virginia Military Institute and establishing a new standard of review for sex discrimination cases.
Over time, as the Supreme Court became more conservative in its approach, Ginsburg also became more pointed in her dissents. She cane to be called the ‘Notorious RBG’
The nickname ‘Notorious RBG’ came from a Tumblr account made by NYU Law Student Shana Knizhnik in 2013.
Knizknik explained that it was the juxtaposition of Ginsburg’s small stature and powerful presence that inspired her to create the nickname influenced by the rapper called ‘Notorious B.I.G’ (Biggie Smalls).
As the Supreme Court became more conservative, Ginsburg was more frequently in dissent.
In one such case, Lilly Ledbetter sued her employer, Goodyear Tire & Rubber Company, in 1999 for gender discrimination after discovering that over the course of her 19-year career at the company, she had received lower compensation than her male counterparts. She won the case in federal court in 2003 and was awarded $3.8 million in back pay and damages.
But the relevant legislation had a 180-day charging period: in effect, a limitation period.
The tire giant appealed and the case eventually made its way to the Supreme Court. In 2007, the Supreme Court upheld a reversal of the federal court decision, ruling that because Ledbetter’s claim was made after the 180-day charging period, she could not sue her employer under Title VII of the Civil Rights Act of 1964.
When the court ruled against Lilly Ledbetter, who had been paid much less for years than her junior male colleagues at Goodyear, Ginsburg’s dissent included the following passage: “The court does not comprehend…the insidious way that women can be victims to discrimination…The ball is in Congress’ court.”
A couple of years later, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law.
In 2013, a majority of the US Supreme Court invalidated a key provision in the Voting Rights Act that required certain jurisdictions with a history of discrimination to undergo federal oversight before enacting any changes in voting procedure.
In response, Ginsburg penned a fiery dissent, pointing out that Congress passed the latest installment of the Voting Rights Act with “overwhelming bipartisan support.”
“The sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective, …the insidious way that women can be victims to discrimination,” Ginsburg wrote.
She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet”.
It is the dissent in the Shelby case that grew Ginsburg’s following in pop culture in recent years – spurring the “Notorious RBG” moniker that morphed into a celebration of the justice’s legal career.
US v Virginia Military Institute
One of her most significant majority decisions regarding gender inequality was the United States v. Virginia: Virginia Military Institute case, excluding women from military service, based on sex. Ginsburg wrote the court’s 7-1 opinion declaring that it could no longer remain an all-male institution. Importantly, this was because it had not been able to provide “exceedingly persuasive justification” for making distinctions on the basis of sex. Although this standard fell short of the “strict scrutiny test” required in cases involving classifications on the basis of race, it nonetheless entrenched an important equality principle. The state, she said, could not exclude women who could meet those demands. “Reliance on overbroad generalizations … estimates about the way most men or most women are, will not suffice to deny opportunity to women whose talent and capacity place them outside the average description,” “Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women for particular economic disabilities [they have] suffered,…but such classifications may not be used, as they once were, …to create or perpetuate the legal, social, and economic inferiority of women (Virgina). There should be no separate spheres for men and women under the law. Distinctions based on what “most” men or women do, on the choices that “most” of them make, are an impediment to full equality. While there were surely physical differences between men and women, how the law dealt with them was socially constructed—not innate—and based on old-fashioned stereotypes. A woman’s ability to bear children, and the traditional division of labor associated with it, too often contributed to “the legal, social and economic inferiority of women.” Ginsburg had said it before as an advocate.
Over the years, Ginsburg would file dozens of briefs seeking to persuade the courts that the 14th Amendment guarantee of equal protection applies not just to racial and ethnic minorities but to women as well. As Ginsburg’s place on the court grew in seniority, so did her role.
In the 2000 US presidential election, Florida was the key to victory for both the Democrats and the Republicans. However, the voting process in the state was a mess, with poorly designed ballots and counting irregularities abound.
George W. Bush and Al Gore both declared victory in the state before election night was over, kicking off one of the most drawn-out election results in the nation’s history. The election quickly went from a decision steered by vote counts to one steered by the courts. The bitter court battle first went to Florida’s Supreme Court, where a manual recount of ballots was ordered. The Bush campaign immediately asked the U.S. Supreme Court to stay the decision and halt the recount.
The order was appealed up to the US Supreme Court, where it was reversed and Florida’s 25 electoral votes, along with the presidency, was handed to Bush. Though Ginsburg was not on the winning side, she did not go gentle into that good night. Notably, Antonin Scalia was in the majority.
While Ginsburg’s colleagues in dissent wrote they dissented “respectfully,” she said only: “I dissent”.
”I might join the chief justice were it my commission to interpret Florida law,”. ”The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree.”
”Were the other members of this court as mindful as they generally are of our system of dual sovereignty,” Justice Ginsburg concluded, ”they would affirm the judgment of the Florida Supreme Court.”
At issue in Hobby Lobby was the Health and Human Service (HHS) Mandate which would have required David and Barbara Green and their family franchise business Hobby Lobby to provide and facilitate four potentially life-terminating drugs and devices in their health insurance plan, against their religious convictions, or pay severe fines. The Greens argued that the mandate substantially burdened their religious beliefs in violation of a federal law, the Religious Freedom Restoration Act.
In an opinion by Justice Alito, the Court said: “The plain terms of RFRA make it perfectly clear that Congress did not discriminate . . . against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs…. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
Ginsburg wrote in her dissent that the court had “ventured into a minefield,” adding it would disadvantage those employees “who do not share their employer’s religious beliefs.” “Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults,” she wrote.
Ginsburg also noted the cost barrier that many women face in attempting to gain access to different kinds of birth control. “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage,” she wrote.
In July 2020, the US Supreme Court paved the way for the Trump administration to expand exemptions for employers who have religious or moral objections to complying with the Affordable Care Act’s contraceptive mandate.
In what turned out to be one of her last dissents, Ginsburg lambasted the court for “(leaving) women workers to fend for themselves,” in a case where the justices struck down the Affordable Care Act’s contraceptive mandate.
She said: “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” Ginsburg wrote in dissent.
“This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” she said and noted that the government had acknowledged that the rules would cause thousands of women — “between 70,500 and 126,400 women of childbearing age, to lose coverage” she wrote –.
When the case’s oral arguments were being heard, Ginsburg participated from a hospital bed because of a gall bladder condition. She also announced, weeks after her dissent in the case, that a scan the February before revealed lesions on her liver and she had begun bi-weekly chemotherapy.
In 1999, RBG was diagnosed with colon cancer. She underwent surgery, chemotherapy, and radiation therapy, all without missing a day of service on the bench.
Ten years later, she was diagnosed with early-stage pancreatic cancer, and was back in court within 12 days of her successful operation.
In 2010, her husband Martin died of his cancer, just four days after their 56th wedding anniversary.
Justice Ginsburg persevered in serving on the court through recurrences of her cancer, promising to remain on the bench so long as she was able to serve. She died at her home in Washington, D.C. at the age of 87.
The world mourned her death, as a feminist icon, a great legal mind, and a giant of history.
The evening of her death, crowds gathered on the steps of the Supreme Court to pay tribute to a champion of equal justice under law.
Although she was only the second woman on the Supreme Court, she later shared the Court with two women, Elena Kagan and Sonia Sotomayor. On her death, she was replaced by Amy Coney Barrett, with whom she would not have agreed.
In America, Ginsburg was regarded as a liberal (as distinct from a conservative: I do not know what the Australian equivalent words are).
She was not exactly radical, but she was a far-sighted thinker. Arguably, the nearest equivalent we have, in Australia, is Michael Kirby: frequently in dissent, but usually pointing the way to the future.
But, unlike Ginsburg, Kirby is not the subject of a number of films, and various documentaries.
RBG did not retire during a democratic term, but died on September 18, 2020, of complications from pancreatic cancer. Trump was still President, and lost no time in appointing Amy Coney Barrett in Ginsburg’s place Although the Supreme court can function with eight justices, in the absence of RBG, it was instantly rendered more conservative. With RBG, the history of the US Constitution is “the story of the extension of constitutional rights and protection to people once ignored or excluded.” Supreme Court Justices are appointed for life, with a potential impact on the country for decades after the President who appointed them has left the White House.
This impacts the ability of the court to interpret legislation from abortion to voting rights and from racial segregation to LGBTQ issues. However before announcing RBGs replacement, past President Donald Trump paid tribute to RBG a “legal giant and pioneer for women“, who had “inspired Americans for generations to come“. The Leading liberal, RBG was replaced with Amy Coney Barrett, a staunch conservative who has the potential extend the Court to the far right on almost every issue.
Justice Barrett is statistically indistinguishable from other conservative judges appointed by President Trump. During her time as a judge on the Seventh Circuit, she didn’t always decide cases in line with other conservative judges and sometimes ruled in a liberal direction. This will likely continue to establish a very strong Republican, conservative presence on the federal judiciary. She was born in 1972, so she was only 48 when Trump appointed her, making her years younger than the next youngest. The other Trump appointees are Kavanaugh (b.1965) and Gorsuch (b.1967).
The US Supreme Court will be conservative for a long time.
Especially democrats and disadvantaged minority groups are not convinced that Judge Barrett, with her originalist interpretation of the Constitution, would protect many people in society. As a Trump-appointed federal judge on the Seventh Circuit, Barrett’s positions on matters such as health care, including the Affordable Care Act; worker rights; racial and ethnic equity; consumer rights; immigrant rights; gun safety; and rights of low-income defendants in criminal cases are concerning to Democrats and advocates of social justice. Overturning the landmark abortion case, Roe v Wade, would be only the tip of the iceberg. However, the likelihood of overturning this decision is small, considering the political controversy this would create. Yet Barrett’s presence on the court only makes the transition easier for the conservative bench to get to a five-vote majority on future cases involving everything from environmental regulations to voting rights.
There is an argument that Ginsburg should have left the court before the end of President Obama’s term to permit him to choose her successor. There are concerns of how politicised the court has become, and the conservative policy preferences of the Republican party could impact on the significant changes RBG made to American law.
If RBG had retired during Obama’s Presidency it would have permitted him to select young, relatively progressive judges who would be able to remain on the court for future decades and continue the work of RBGs legacy.
Bill Clinton said, when he nominated Ginsburg to the Supreme Court: “Ruth Bader Ginsburg cannot be called a liberal or a conservative; she has proved herself too thoughtful for such labels.”
“Justice Ginsburg personified the best of what it meant to be a judge…. We have lost a giant.” – Dean of Harvard Law School upon Ginsburg’s death.
“Real change, enduring change, happens one step at a time.”
“Reacting in anger or annoyance will not advance one’s ability to persuade.”
“Fight for the things that you care about, but do it in a way that will lead others to join you.”
“I’m a very strong believer in listening and learning from others.”
“In the course of a marriage, one accommodates the other.”
“Reading is the key that opens doors to many good things in life. Reading shaped my dreams, and more reading helped me make my dreams come true.”
“You can disagree without being disagreeable.”
“Every now and then it is useful to be a bit deaf”
“Don’t be distracted by emotions like anger, envy, resentment. These just zap energy and waste time.”
“Women belong in all places where decisions are being made. It shouldn’t be that women are the exception.”
“I would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability.”
“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”
I had a conversation with Tim Costello some years ago which significantly changed my way of seeing things.
He told me of a time when he was running the Collins St Baptist Church. A guy who had been sleeping rough for quite a while had turned up at the Church wanting a feed. Tim was talking to him. The guy said that that conversation was the first time in two weeks he had had eye contact with any other human being.
I can scarcely imagine what that must be like. That man had, at least in his own mind, completely disappeared.
I have thought about that conversation often. The idea of such alienation haunts me. But there are many people in our society who have, at least in their own minds, disappeared. These are the people who, because of mental health problems, or simple bad luck, find themselves nursing a grievance that no-one wants to hear about. The more they complain, the more they are ignored; the more they are ignored, the louder they complain. The louder they complain, the more they are avoided, viewed with suspicion. And once that cycle sets in, their problems become more and more real to them, less and less real to those around them.
These are the people who ring late night talkback radio and harangue the host until even the panel operators know to filter them out. They are the new outcasts.
My conversation with Tim came in useful during the first round of Australia’s recent panic about asylum seekers. Between 2001 and about 2006, a lot of Australians were persuaded to be anxious about boat people arriving here. After all, the Howard government had told us they were illegals; that they had thrown their children into the sea; that they had jumped a queue somewhere. And the struggle to prevent the country from being swamped by this tide of potential terrorists was paraded as “border protection”.
Howard recognised that there were votes to be taken from One Nation if only he could make us fear the alien horde and position himself as our protector. It worked.
There is a story that I have on fair authority which shows clearly what was going on. Howard was about to enter the House of Representatives to deliver his speech explaining the government’s response to the Tampa. Jackie Kelly approached him in the lobby. She said that a lot of her constituents were deserting to One Nation. Howard waved his speech in front of her and said: “don’t worry – this will fix it”.
As most people thought at the time, the government’s response to the Tampa was purely political. Of course, Howard had a great run of good luck in 2001. His government refused to let the Tampa put its bedraggled cargo of rescued Hazaras ashore on Christmas Island; he cobbled together the Pacific Solution while the court case about Tampa continued. The judgment at first instance in the Tampa case was handed down at 2:15 Eastern Standard Time, on September 11, 2001. The result was not noticed in the newspapers next morning, because a group of Islamic extremists had attacked America.
From that moment, there were no terrorists but Muslim terrorists. There were no boat people but Muslim boat people, and although it was never clearly stated, all boat people were suspected terrorists – our worst nightmare. For those who did not see through the political opportunism, boat people were aliens to be feared.
Of course, if the true facts were understood, our response would have seemed rather odd. It did not suit the politicians to acknowledge that boat people were not illegal, that there was no queue, that they had not thrown their children overboard, and that they were trying to escape the same extremists we were so frightened of.
The Tampa incident in 2001 marked a turning point for the asylum seeker debate in Australia.
For my sins, I became involved in the issue. I was regularly asked to speak, at public events and private, about asylum seekers. It seemed to me that the key to the problem was to explain the facts. Naïvely I thought that most Australians would recoil at the idea of wilfully mistreating men, women and children who had done nothing wrong but try to escape to safety.
A couple of unexpected things happened. First, I got a few death threats. It surprised me that, having done a few pretty contentious cases in my career, I should receive death threats for going to court pro bono on behalf of people who were, self-evidently, voiceless and powerless.
And whenever I was quoted in the media saying something outrageous like “it is wrong to imprison innocent children and drive them to suicide”, I would receive a torrent of hate mail.
The anger and intensity of the hate mail astonished me then, and it still does. It struck me as remarkable that people would write to a complete stranger in such bluntly abusive terms. And the mail I got was seriously, vigorously abusive.
Since I had set myself the goal of converting all of Australia to understanding the facts, I decided to answer all the hate mail. After all, these people had self-identified as disagreeing with my views. My reasoning, flawed as it looks now, was that if only the people who disagreed with me could understand the facts, then they would come around to my way of seeing things. If enough people changed their views, the government policy would have to change. Clearly I did not know what I was dealing with.
Still, I resolved to answer all the mail I could. Mail that came by post was impossible to answer because, as a rule, people who use the postal service are a forgetful lot who did not include a name or address. But most of it came by email and, even if I did not know the sender’s identity, I could respond by simply hitting the reply button.
I sat up late at night answering emails: thousands of them, mostly abusive. Some of them all in capitals; lots of exclamation marks and lots of very rude words. I am no shrinking violet, but I was astonished by the rudeness of many of the emails I got. Unpopularity brings strange rewards.
Since their complaints fell into a few recognisable patterns, I had a few standard responses. Typically I would grit my teeth and say something like:
Thank you for your email. I gather you do not agree with me. But did you realise that…they do not break any law by coming here asking for protection; there is no queue…etc.
If I was surprised by the rudeness and vehemence of most of the emails, what followed was even more astonishing. Nearly all of them responded to my reply…and every response was polite. The responses fell into a few patterns, but typically they said “thank you for answering me, I did not expect to hear from you. The facts you sent me are all very well, but…”, and then they would set out other objections. I replied with more facts to answer those objections.
Over the course of thousands of bits of hate mail, I estimate that about 50% ended up saying, in substance: “Thank you for discussing this issue with me. I agree with you now”; and about 25% ended up saying, in substance: “Thank you for discussing this issue with me. I don’t agree with you, but it is good that you stand up for what you believe”. The other 25% remained entirely unconvinced and, I assume, continued to vote for John Howard.
What struck me in all this was the story Tim had told me. I guessed that the people who wrote to me – and who did not expect a reply – were so alienated from the community that their only means of expressing their anger and fear and resentment and confusion was by writing to someone mildly prominent.
It occurred to me then that the passion which drove their initial hostility was the mark of people who were alienated from the community: they were accustomed to being ignored, so they fall to shouting abuse as a way of getting attention. Just once listen to them, and they quickly fall back to observing the ordinary rules of civil behaviour.
This is not just an argument for good manners: I think it goes much deeper. Too many people in our community feel alienated from it and that alienation is unstable: it tends not to self-correct, but to amplify itself.
We are a prosperous country: most of us are genuinely lucky. But we are not good at sharing our luck, and we have a strange habit of thinking that those who are less lucky must be, in some way, responsible for their own misfortunes.
There are many reasons why members of the community become alienated from it. They may have been dealt a bad hand: they have been born poor, they have been badly educated, they have a mental or physical disability, they have bad luck in employment, they make bad choices which lead them into a hopeless life. Any one of these disadvantages can lead to a cascade of events which leave a person at the bottom of the pile. And when compassion turns to vindictiveness these people suffer twice for the disadvantages they could not avoid.
Because everyone, it seems, knows my name, address and occupation I get a lot of unsolicited requests for pro bono help. It has been interesting, not to say distressing, to see the sort of troubles that plague people in our community. I get a large number of requests for help. I make it clear that all I can do is offer pro bono advice. I have a group of talented interns who help me deal with the problems.
What is distressing is that the majority of people who write to me this way do not in fact have a recognisable legal or human rights problem. Typically they are people who have had some bad luck, have made some bad choices, and find themselves trapped in a spiral of disadvantage, distress, unemployment and mental instability. At that point, anything that looks like a legal or human rights problem prompts them to reach out for help. I imagine that medical clinics have a similar experience.
When I write to them with further questions, or with advice about what to do, it usually becomes clear that they have already been to just about every imaginable place for help: Legal Aid, a Community Legal Centre, government departments, their local doctor or MP. No-one can help them, because they have no single, clear problem apart from the fact that they feel alienated from everything. Part of their distress is caused by feeling so isolated.
Former prime minister John Howard used harsh treatment of asylum seekers to his political advantage in the early part of the 2000s. AAP/Julian Smith
The most distressed, and distressing, group are people who are probably paranoid schizophrenics. One person who writes to me quite often is convinced that the police, and other government agencies, are spying on him all the time and that they have a secret control order against him. He is intelligent and well-educated. He sends video footage of ordinary street scenes, at the traffic lights, in shopping centres, in suburban streets and he asserts (and no doubt believes) that various people captured on his videos are in fact plain clothes operatives – stalking him, watching him, keeping him in a kind of open prison.
This person points out, rationally enough, that such conduct is a serious breach of his human rights. And if the innocuous scenes he sent showed what he sees, he would be right. But they do not show what he sees. They prove nothing at all. He insists that the Commonwealth government have a secret control order against him: but he can offer no explanation how a control order can work, if it is kept secret from everyone.
The difficulty with people like this man is that they cannot be convinced that their view of the facts does not line up with reality. And it is hard for a lawyer to tell a would-be client that he needs psychiatric help.
The end result is that people like him get pushed from pillar to post but rarely if ever get the help they actually need.
There are only a couple of bright spots in this dismal tale.
The first concerns a lady who turned up in my chambers one lunchtime, quite distressed and wanting to see me. We chatted for a bit, but the long and short of it was that she had been receiving treatment for paranoid schizophrenia, her treatment had been interrupted; she became convinced that her treating doctor was trying to kill her with the medications he had prescribed, so she decided not to take it any more. She wanted me to take possession of the diary she had been keeping because she was confident that she would soon be killed and she wanted me to have the evidence which would identify the guilty party.
We spoke for some time. Somehow I managed to persuade her to go to a new doctor – someone who could not possibly know or conspire with her treating doctor – and agree to take whatever medication he prescribed. In the meantime I would protect her diary.
About two months later she turned up again. She had been to another doctor. She had taken the medication he prescribed. She was feeling a lot better, and realised that she had misjudged her original doctor. In the circumstances, she did not need me to look after her diary any more.
How odd that one of my few successes in the field of human rights should result from a modicum of medical knowledge and a bit of common sense.
The second bright spot is this. Most of the people who write asking for pro bono help have simply not got a legal problem. While they may have had a genuine legal problem in the past, typically it is buried in history and statute barred years or decades before. The real problem is that their lives have gone off track, and they no longer feel any connection to the society which has let them down so badly. A surprising number of these people seem to benefit from having their problem taken seriously, from getting a written advice in response to their letter, or from being listened to for half an hour.
It is a powerful reminder of just what great work the Community Legal Centres do. Underfunded and under resourced, they exist in order to help people deal with legal problems, but in many cases the real help they give lies in the fact that they extend the simple dignity of listening to a person’s distress. They help rescue the alienated. I am hugely impressed with Community Legal Centres. They deserve to be better funded and better recognised for the work they do.
Of course, there are plenty of people in the community who have genuine legal problems who cannot afford legal representation. People who face minor criminal charges but cannot afford a lawyer; people who have a good civil claim to make, or a good defence to a civil claim brought against them, and cannot afford legal representation.
Access to Justice is a cornerstone of any democracy. Access to Justice must include the right to participate meaningfully in the legal system.
The legal system in Australia is an adversary system: competing parties advance evidence and arguments, and the court sits as an impartial umpire to decide the dispute. The adversary system assumes that both parties are competently represented: that is its most basic assumption. If that assumption fails, the system fails. Our system struggles to work properly when one party is unrepresented. But litigation is expensive, and many people can’t afford it.
Legal Aid is the government’s way of making good the political promise of Access to Justice, but Legal Aid is already underfunded, and cuts to Legal Aid guarantee that for many people Access to Justice is nothing but a political slogan.
The government is spending increasing amounts on police and Public Safety Officers. Their increased numbers result in more citizens being brought before courts. Those people need legal representation, but the government refuses to fund Legal Aid properly.
Thousands of self-represented litigants come before courts every year. This imposes unreasonable strains on judges, and it makes cases longer and more difficult than they should be. It often leads to mistakes. 25% of all appeals involve unrepresented litigants. It wastes vast amounts of judicial and other resources.
People who face a court unrepresented suffer an immediate disadvantage. Only by good luck will they get the result they might have got if they had been represented. And even assuming the court reaches the right decision it is likely that the unrepresented litigant will have understood almost nothing of the process and will leave with a rankling sense of injustice. With some justification, those people will leave court feeling that the system is not working, at least not for them. They become aliens in their own land.
But they are not alone.
Since 2001, Australian politicians have won electoral popularity by taking a tough line on asylum seekers.
During the past 15 years, asylum seekers were somehow hoisted to a position of public hatred which made it politically possible for the Howard government to treat them with increasing harshness, and made it politically necessary for Kim Beasley’s Labor opposition to support these measures. Without any protest from the press or the public, the Howard government succeeded in establishing, in the courts, that the central elements of its deterrent policy were legally valid.
Not enough people know the case of Ahmed al Kateb. He came to Australia and sought asylum in late 2000 or thereabouts. He applied for a visa and 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 papers 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 case.
They had not allowed for the anomalous case of stateless people. You might think that a government which had paraded itself virtuously as committed to family values and a fair and decent society, might quickly amend the law to account for these few anomalous cases. But what the government did, in fact, was to argue all the way to the High Court that al Kateb, even though he has committed no offence in Australia, can be held in detention for the rest of his life. The High Court agreed.
Parallel with the al Kateb case was the case of Behrooz. That case tested this question: if the conditions in detention are as harsh as human ingenuity can devise, does the harshness make any difference to the lawfulness of that detention. The answer is No.
Al Kateb and Behrooz were decided together in 2004. Between them, they stand for the miserable proposition that indefinite detention, even for life in the worst conditions imaginable, is lawful. A third case decided that year held that the provisions apply equally to children.
The Rudd government in 2008 introduced significant changes in the treatment of asylum seekers. They were welcomed by those of us who felt that the values of the nation had been betrayed by the Howard government. In retrospect, it may be that Rudd could afford to be nice to asylum seekers because none were arriving. Things changed in 2009, after Tony Abbott had won leadership of the Coalition and started talking tough about asylum seekers.
The recent election saw the major political parties engaged in a competition to outdo each other in their promises to mistreat boat people. The theory is that this will deter others from seeking protection here.
Promising to treat innocent people badly is not usually a vote-winner. In most cases it would be seen as a mark of depravity.
But the argument starts at the wrong place. It starts with the Coalition’s oft-repeated statement that boat people are “illegals”. It starts from the language of “border protection” and “queue-jumping”: language calculated to make the public think boat people are undesirables, people to be feared, people we need to be protected from.
New immigration minister Scott Morrison has promised a ‘harder line’ on asylum seekers. AAP/Penny Bradfield
The fact is that boat people do not break any law by coming here the way they do. Over the past 15 years, 90% of them have ultimately been assessed as refugees entitled to our protection. Their arrival rate over the last 12 months has been much higher than the historic average, but even now it represents only four weeks’ ordinary population growth. While an estimated 25,000 boat people arrived in Australia in the 12 months to June 30, 2013, we received 168,685 new permanent migrants and over six million visitors came to our shores in the year ended December 2012. Boat people do not present a demographic problem for Australia.
Spooked by tabloid scare-mongering, both major parties have chosen deterrent policies: treat them harshly, push them off to small, impoverished Pacific neighbours. The low point of this is the recent Coalition promise to bring in the military to deal with the “emergency”.
The spectacular cost of these measures passes without complaint because it is seen as a kind of protection. While it is difficult to separate out the various components of the cost, indefinite detention costs, on average, around A$160,000 per person per year as of 2011-12. The actual cost varies: metropolitan detention is cheapest. It gets more and more expensive as the place of detention is more remote. On current estimates, we will spend about $4 billion each year brutalising people who have committed no offence and have done nothing worse that ask for protection.
It is not easy to understand how this has happened. Those of us who think Australia is better than its behaviour suggests now feel like aliens in our own land: bewildered at how quickly the country has lost its moral bearings.
Australia has constructed a myth about itself which cannot survive unless we forget a number of painful truths. We draw a veil of comforting amnesia over anything which contradicts our self-image.
We forget that boat people who come here to ask for protection are not illegal in any sense – they are exercising the right which every person has in international law to seek asylum in any country they can reach.
We forget that the greatest number of unauthorised boats to arrive in a single day got here on January 26, 1788.
We forget that the first white settlers in this country were true illegals: sent here by English courts for a range of criminal offences, and the soldiers sent to guard them, and the administrators who, following London’s instructions, stole the country from its original inhabitants who, if possession is nine points of the law, had the backing of 60,000 years of law to justify calling the white invaders “illegals”.
And we forget, too, the line in the second verse of our national anthem. For those who come across the sea there truly are boundless plains to share. For refugees locked away in remote detention centres, that line must cast light on the frontier which delusion shares with hypocrisy.
We forget how different it was for 85,000 Vietnamese boat people 30 years ago. They were resettled here swiftly and without fuss, thanks to the simple human decency which Malcolm Fraser and Gough Whitlam showed, and which Abbott and Rudd so conspicuously lack. We forget how hideously we scarred Vietnam; how we showered them with Agent Orange and trashed their villages and disfigured their people. Just as we forget the effects of our collaboration in Iraq. But if we knew back then why people flee the land of their birth, we seem to have forgotten it now.
When today’s refugees wash up on our shores, politicians 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, the “scum of the earth”? They forget that Oskar Schindler was a people smuggler, and so was Dietrich Bonhoeffer.
Oskar Schindler ‘smuggled’ many Jews to work in his factories during World War Two. Noa Cafri
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 Europe, and more than half of them perished in concentration camps. Captain Schroeder was a people smuggler, but was also a hero and if the world had not been so harsh he would have been a saviour.
And we forget that, without the help of people smugglers, refugees are left to face persecution or death at the hands of whatever tyranny threatens them. Let Rudd or Abbott say publicly that, in the same circumstances, they would not use a people smuggler if they had to.
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 fallen dramatically over the past decade, as Hazaras escape or are killed. The Taliban want to get rid of all of them. We have forgotten that we are locked in mortal combat with the Taliban. When our troops pull out of Afghanistan at the end of this year, the Taliban will declare open season on Hazaras. It will be a bloodbath, and some Hazaras will end up seeking protection here.
How will we respond? Coldly, it seems.
So here we are: Australia in 2013. We have forgotten our origins and our good fortune, we are blind to our own selfishness. In place of memory we cling to a national myth of a generous, welcoming country, a land of new arrivals where everyone gets a fair go; a myth in which vanity fills the emptiness where the truth was forgotten.
During the election campaign, many of us watched aghast as both major parties promised mistreatment so harsh that it would act as a deterrent; mistreatment so unpleasant that it would seem more attractive to stay home and face down the Taliban rather than flee for safety.
It is painful to recognize that we are now a country which would brutalise one group with the intention that other people in distress will choose not to ask us for help.
The sight of the major parties competing to promise greater cruelty to boat people is new in Australian politics. We have never been perfect, but this was something without precedent.
But some of us remember how things once were, some of us see how things could be.
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 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, 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 Protestantsmay 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, the executive power, and the judicial power.
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.
 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.
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:
“ 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:
Right to life and liberty
Freedom of religion, speech, press and assembly,
Freedom from arbitrary search and seizure
Due process and equal protection under law
No cruel and unusual punishment
Privileges and immunities, due process, ,
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.
Does art matter? Does culture matter? It is tempting to say that our belief in these things is a matter of faith: it is axiomatic – we assume as a first principle that art matters, and we use this assumption as a starting point for arguments about philanthropic support for the arts.
By contrast, economic rationalists would point out that most artists are economically unviable. That is true. Creative artists generally have miserable incomes from their art, and survive by teaching or waiting on tables. Performing artists do not have it much better. Depending on their speciality, they may have just as difficult a time as creative artists.
Economic rationalists would argue that pouring money into the arts is irrational unless the consumer considers the transaction to deliver a nett benefit to them.
The economic rationalist will buy the painting which delivers them the greatest pleasure for the lowest price, allowing that part of the pleasure might derive from the conspicuously famous name of the artist.
The economic rationalist will not be tempted to provide philanthropic support for the arts, because that produces no saleable return; the economic rationalist will not be tempted to commission music unless it has a good chance of generating royalties.
I want to explore briefly the assumption that Art matters, and set the argument against economic rationalism.
Vincent Van Gogh sold very few paintings, and those for very little money. Cezanne was once booted out of his lodgings and the angry landlord hurled some of his paintings out of the attic window into the courtyard below. Similar examples can be multiplied endlessly.
Would the world be poorer if Van Gogh had never painted Starry Night, or if Cezanne had not painted Les Bagneuses; or if van Gogh and Cezanne had never painted at all?
Would the world be poorer if Michelangelo had never painted the ceiling of the Sistine Chapel or designed the Duomo in Florence; if Leonardo da Vinci had never painted; if Beethoven or Shostakovitch had never written a note of music?
Imagine a world without Shakespeare or Balzac and ask whether it is better or worse than this world.
It is no answer that paintings by Van Gogh and Cezanne now sell for tens of millions of dollars; that original scores of Beethoven are priceless, likewise the manuscripts of Balzac and Shakespeare.
We do not value these works because of their price tags: the price tags are almost entirely irrelevant to the value we see in these works. Few people would accept that a person who buys an iconic painting could withdraw it forever from public view.
No-one would accept that the purchaser of a great work of art was entitled to destroy it.
The reason this is so is that we all acknowledge that a work of art is more than simply a physical thing capable of being bought and sold.
In profoundly important ways, every work of art carries part of our shared culture and it is that fact which gives the work its true value: a value which bears very little relation to the operation of a market for unique commodities.
The destruction of the library at Byzantium in 1204 and the looting of the national museum of Baghdad in 2004 represent losses which not even the crassest economist has tried to measure in economic terms, because the calculation would be seen by everyone to miss the point completely.
In a remarkable short story by Frederic Raphael, the author speaks of a man whose father was a judge. He grows up with the unstated expectation that he will be a lawyer. In his early adolescence starts writing poetry. He is quite good a it, and keeps writing poetry when all his friends have returned to the cricket pitch. He does well at school and is accepted into a law course, but keeps writing poetry. During his university days, he meets the girl he later marries. She gently persuades him to forget about poetry and concentrate on law. He abandoned a hopeful career as a poet for the much more prosaic career of a lawyer. He prospers in his choice and is eventually appointed to the Bench. Upon his appointment, he has to vacate his chambers and this leads him to the bitter-sweet task of going through the accumulated papers of decades to decide what may be disposed of and what should be retained.
“He had quite forgotten about his adolescent poetry and was astonished to come across a batch of it at the bottom of a cupboard. He smiled – golly! – at the sight of it and took it out and started to read, for a laugh. He expected clinching evidence of the folly of youthful pretensions. His whole happy life had been founded on the assumption that he had been right to abdicate before his wife’s gentle, unmistakable judgment. He sat on the floor of his chambers, boyishly grey, and prepared to be embarrassed by those unburnt embers. Instead, the poems passed sentence on his life. At last, he closed his eyes to escape their indictment, but the unblinking eye in the centre of his forehead gazed and blazed with unique and undeniable vision. He cowered on the floor of the dusty cave and saw that the years of his life had escaped, like Odysseus’s men under the panicky sheep of the blind, deluded Polyphemus. ‘Who are you, who are you?’ he cried. And the voice of the man who had blinded himself replied ‘No-one. No-one.’”
In that short, compelling paragraph the author shows the result of comparing the valuable with the priceless.
If we suspect that the world would be poorer without Beethoven and Mozart, without van Gogh and Cezanne; without Shakespeare and Balzac, we acknowledge the value of art for its own sake.
None of those people created material wealth. None of them derived great material wealth in their lifetimes. The value of unique paintings is a quirk of the market for commodities: the true value of the works is spiritual.
If the manuscript score of all of Beethoven’s symphonies were destroyed, it would be tragic but we would still have the works themselves and our cultural heritage would remain intact.
I recently heard an enchanting story from a friend of mine called Mary who works in a large Melbourne bookshop. She told me about a middle-aged Melbourne woman who ventured shyly into the bookshop. Noticing her bewildered hesitancy, Mary approached her and asked if she was looking for a book. “Yes” she said, “I’ve never bought one before.” This startling comment turned out to be literal truth. She had never bought a book in her life, and was unsure how to go about it. My friend helped identify a book she was likely to enjoy, and the transaction was settled. A couple of weeks later she was back and bought another book. And so it went for some months and as Christmas approached she confided in Mary that she had suggested to her friends that books would be welcome Christmas presents. Mary asked her how she felt now that she had begun reading books: “It is wonderful” she said, “I no longer live in a flat in Kensington – I live in the world.”
There is great force in that comment.
There is great force in the notion that art connects us to the world, to each other, to others we can never meet or know. It affirms and reinforces our integral relationship to the rest of humanity. The wider our encounter with art, the richer that connection becomes.
So art is valuable, in and of itself.
Human language has a vocabulary adapted to accommodate our daily needs and functions: the vocabulary of any human language maps approximately to the needs and activities of our mundane lives.
But few would deny that there is another dimension of human existence which transcends the mundane: call it the soul, the spirit, that part of the human frame which responds to the call of the non-rational.
In the domain of the human spirit, other vocabularies emerge.
Painting, music, poetry, sculpture are all different languages, each with its own unique vocabulary. The vocabulary of each artform gives it access to areas of human experience which are not available to other sorts of language.
This is why works of art are considered less meritorious – at least less interesting – as they become more literal and narrative. If an idea is best expressed in words, why bother expressing it in paint or music instead?
By contrast, some ideas can only be expressed in paint or music: the vocabulary of paint and music share little of the vocabulary of spoken language. I once heard someone ask an abstract expressionist to say what one of his paintings meant. He said “No, I can’t tell you, but I will try to hum it.”
It is neither useful nor interesting to ask what Beethoven’s 5th symphony “means”, or what Carl Vine’s 4th string quartet “means”, if the questioner wants you to say in words what Beethoven or Carl Vine said in music
This is the key to understanding why Art matters. Every form of art is a unique way of seeing, and at its best each form of art says things which cannot be said, or said as compellingly, in any other way.
Deny this, and you close off part of the human spirit. As Victor Hugo said:
Music expresses that which cannot be put into words and that which cannot remain silent.
A history of the Weimar Republic speaks of the same things which occupied Kathe Kollwitz and George Grosz, but their work reaches out to us in a quite different way. The story of that time and place would be incomplete without their work.
Try to imagine this country if all practising artists perished overnight. Imagine this country if, for the next generation, there were no new paintings made, no new novels or poems written, no new music, no new sculpture.
Imagine looking back on that bleak and wasted generation in 50 or 100 years time. Like a layer of ash in the archaeological record it would stand as a silent marker of a period of desolation.
Culture is the accumulated record of artistic expression of a time and place. It may present an unattractive picture, or a brilliant one, but it is an essential record unless we take the nihilist view that human existence itself is irrelevant.
The nihilist would see no point in having children. If any one of us matters, then art matters and culture matters. A Society without culture leaves no children; with no past it can have no future.
It is impossible (well, difficult) to be alive today and not be aware of Donald Trump. And if you are aware of him, it is difficult to overlook the fact that his conduct as President of the USA is (to say the least) unorthodox. So unorthodox that the US House of Representatives undertook an official impeachment enquiry. In American law, the articles of impeachment are formulated by the lower house, for trial in the upper house. A President is not removed from office except by a two thirds vote in the Senate.
It all starts with the US Constitution.
The American Constitution was the result of the Declaration of Independence in 1776. The first draft was prepared in 1787, and it was ratified in 1788 after Congress voted to transmit the document to the thirteen states for ratification. By 21 June 1788, it had been ratified by the minimum number of nine states required under Article VII. The first ten amendments to the Constitution were adopted in 1789. They are collectively referred to as the Bill of Rights: they reflect the English Bill of Rights of 1689 – a century earlier – and a couple of additional protections drawn from Magna Carta as interpreted by Sir Edward Coke.
Section 4 of Article II of the Constitution provides:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors
There is a continuing debate about what is meant by “high Crimes and Misdemeanors”.
Nowadays misdemeanour is generally a reference to a relatively minor offence. The OED gives the current meaning of the word in the law as “One of a class of indictable offences which were formerly regarded as less heinous than those called felonies…” and the Macquarie defines it as “a less serious crime”. The English Dictionary (1742) by N. Bailey defines misdemeanour as “an offence or fault” whereas Johnson (1755) defines it as “Offence; ill behaviour; something less than an atrocious crime”. Webster’s International Dictionary (1902) defines misdemeanor ( no u) as “(Law) a crime less than a felony” and adds a note quoting from Blackstone:
“As a rule, in the old English law, offences capitally punishable were felonies, all other indictable offences were misdemeanors. In common usage the word crime is employed to denote offences of the deeper and more atrocious dye, while small faults and omissions of less consequence are comprised under the gentler name of misdemeanors.”
(Even though Blackstone spelt the word misdemeanours with a u, Webster drops it in the quotation.) The American Heritage Dictionary adopts a definition, consistent with Webster: “(Law) an offence less serious than a felony”. In England, the distinction between a felony and a misdemeanour was abolished by the Criminal Law Act of 1967.
It is to be noted that many dictionaries still distinguish between the ordinary meaning of misdemeanour and the meaning at law. The OED, for example, defines misdemeanour as follows:
a.1.a Evil behaviour, misconduct. Now rare.
b.1.b An instance of this; a misdeed, offence.
Law. One of a class of indictable offences which were formerly regarded as less heinous than those called felonies; high misdemeanour
The New Oxford English Dictionary (1998) defines misdemeanour as “a minor wrongdoing” and adds “Law a non-indictable offence, regarded in US (and formerly in the UK) as less serious than a felony”.
(It is interesting to see the silent nod to the Criminal Law Act of 1967 which abolished the distinction between a felony and a misdemeanour).
Johnson does not make such a clear distinction between ordinary usage and legal usage, when he defines it as “Offence; ill behaviour; something less than an atrocious crime”.
Given the way the words are printed in the US Constitution (“…high Crimes and Misdemeanors…) it is possible that the adjective high was intended to qualify both nouns (Crimes and Misdemeanors). That would raise the question: what is a high misdemeanour? The OED definition of misdemeanour (quoted above) defines it, in part, as high misdemeanour. The phrase “high crimes and misdemeanors” as one of the criteria for removing public officials who abuse their office was suggested by George Mason of Virginia. Before Mason’s suggestion, other phrases had been suggested, including high misdemeanor, maladministration, and other crime. George Mason was a delegate to the Constitutional Convention of 1787. (He was one of the three delegates who refused to sign the Constitution.) So, it seems that we do not have to unpick the idea of high misdemeanour.
This becomes clearer, when you consider that, at the Constitutional Convention, Edmund Randolph (a lawyer from Virginia) said impeachment should be reserved for those who “misbehave.” Charles Pinckney (from South Carolina) said, it should be reserved “for those who behave amiss, or betray their public trust.” These both seem to fit within the contemporary understanding of misdemeanor.
The phrase high Crimes and Misdemeanours was used often enough in England to remove officials. Since 1386, the English Parliament had used the term high crimes and misdemeanours as the ground on which officials of the Crown could be impeached. The allegation was used to remove from office officials accused of widely varying acts (not all of them criminal offences) such as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping suppress petitions to the King to call a Parliament, granting warrants without cause, and bribery. The common feature of these accusations was that the official had abused the power of their office and was unfit to serve.
Section 4 of Article II provides that an official can be removed from office on “…impeachment for, and Conviction of…” (Treason, Bribery, or other high Crimes and Misdemeanors). The impeachment investigation is a matter for the House of Representatives; conviction is a matter for the Senate. The House of Representatives in USA has begun impeachment proceedings against only 19 officials – one U.S. senator, four presidents (including Trump), one cabinet member, and 13 federal judges. It is notorious that three presidents have been impeached by the lower house, but they have been spared conviction in the Senate. Andrew Johnson was impeached by the House of Representatives in 1868, but not convicted in the Senate. Richard Nixon was impeached, but resigned when the Watergate tapes surfaced and before a trial in the Senate: on 27 July 1974, the House Judiciary Committee passed three articles of impeachment charging Nixon with obstruction of justice, abuse of power, and contempt of Congress. He resigned on 8 August 1974, before the Senate could hear the case against him. And Bill Clinton was impeached by the House of Representatives in 1999, but not convicted in the Senate (there were 50 votes against him, where 67 votes were needed for a conviction: despite the oath Senators must take before sitting on an impeachment trial, it all ultimately turns on politics).
The misdeeds of Nixon and Clinton are well-remembered by most people. Johnson was President much longer ago: he was Lincoln’s Vice-President and took office after Lincoln was assassinated in 1865; he was in favour of slavery. The House voted to impeach him in February 1868, three days after he sacked his secretary of war, Edwin M. Stanton, contrary to the provisions of the Tenure of Office Act.
Which raises the question what impeach means. According to the OED impeach originally meant “To impede, hinder, prevent”, with supporting quotes from 1380 to 1690. Closer to the mark, it is also defined as meaning “To challenge, call in question, cast an imputation upon, attack; to discredit, disparage” with supporting quotes up to 1888, with the earliest from Shakespeare Midsummer Night’s Dream:
“You do impeach your modesty too much To leave the City, and commit yourself into the hands of one that loves you not.” (1590).
Impeach is also defined as meaning “To bring a charge or accusation against; to accuse of, charge with.”, supported by quotations from 1380 (Wyclif) to 1840 (Dickens).
As the House of Representatives has resolved that Donald Trump engaged in high crimes or misdemeanors, it has impeached him accordingly, but he will not be removed from office unless the Senate convicts him (by a two- thirds majority) of either of the articles of impeachment resolved by the lower house. At the time of writing, the articles of impeachment have not been sent to the Senate, because the Republican Senate leader (Mitch McConnell) is talking about having a trial without hearing from any witnesses, or receiving any documents. Senator McConnell clearly has no idea what a trial is.
Conviction in the Senate is where raw politics saved Johnson and Clinton. Johnson avoided conviction in the Senate by just one vote. Clinton survived conviction by 17 votes. Trump may get a similar result, given the power of the Republicans in the Senate, even though his erroneous ways have been far more egregious than those of Johnson or Clinton.
It would be the great irony of our times that a President, who has tormented the English language as much as George W Bush did, should finally raise the greatest challenge for English: the meaning of the key phrase in section 4 of Article II of the Constitution.
There is no more glamorous city in Australia than Sydney. Ask anyone who lives there. It is the prestige place to live and work and have corporate headquarters. This annoys Perth, where the gravitational pull of ferrous metal is ever growing. Sydney is Tinsel-town to outsiders, but its prestige never fades.
The first paragraph of this essay is unequivocally a compliment to Sydney if each word is given its current meaning, but in earlier times it would have been seen as hovering on the frontier which envy shares with malice.
Glamour has developed oddly. Its current meaning is almost entirely favourable, even if tinged with jealousy. Some recent references in the Court of Appeal give a fair representation. In Chisholm v Pittwater Council & Anor  NSWCA 104 the Court said:
“…During the first part of the last century, Palm Beach was regarded as the “epitome of the simple, unspoilt life”. Later, Palm Beach acquired a reputation for “glamour”, and was regarded as a ‘place for the [very] wealthy’…”
The judgment is attributed to Meagher JA, Powell JA and Ipp AJA, but that sentence bears the stamp of Meagher JA.
In Union Shipping NZ v Morgan  NSWCA 124 at  Heydon JA, with laser-like precision, said:
“The defendant … said that all that mattered was the merit or weakness of any particular argument, quite independently of which court had employed it. Yet it was noticeable that the defendant, in its enthusiasm for particular arguments favourable to its position, constantly reminded the Court of the glamorous courts associated with them, like the United States Supreme Court, or the glamorous judicial names associated with them, like those of Jackson J and Frankfurter J, or even the glamorous academic names associated with them, like Kahn-Freund, Morris, Cheshire and North.”
Hodgson and Santow JJA agreed.
These references fairly catch the current sense of glamour, although the inverted commas around it in Chisholm suggest that the author well knew the gulf between its original and its current meaning. It’s all Sir Walter Scott’s fault. Glamour was originally a Scottish word meaning magic or sorcery, and its connotations were unfavourable. Burns used it in this sense:
“Ye gipsy-gang that deal in glamor, And you deep read in hell’s black grammar, (Warlocks and witches (1789))
Bailey’s dictionary (1721) does not have an entry for glamour, and neither does Johnson’s Dictionary (1755): but Johnson notoriously disliked Scotland. Scott is credited with introducing the word into literary use. In Letters on Demonology and Witchcraft (1830) he wrote:
“This species of Witchcraft is well known in Scotland as the glamour, or deceptio visus, and was supposed to be a special attribute of the race of Gipsies.”
(Deceptio visus, not surprisingly, is an optical illusion).
Later in the 19th century, glamour came to signify a magical or fictitious beauty; then in the 20th century charm; attractiveness; physical allure, especially feminine beauty. It is notable that charm is the hinge around which the shift in meaning swings, since charm can refer to an appealing character or to a magic spell.
By the middle of the 20th century the current meaning was established. In Terence Rattigan’s play Flare Path (1941) one character says:
“I’m going to pour it on with a bucket. If I can’t look like the screen’s great lover, I can at least smell like a glamour boy.”
Glamour and prestige have followed surprisingly similar trajectories. Like glamour, the current meaning of prestige can be fairly caught in recent decisions of the Court of Appeal. In Dawes Underwriting v Roth  NSWCA 152 Macfarlan JA said:
“Dawes offers insurance for a range of high performance, prestige , vintage and classic motor vehicles.”
In Fexuto v Bosnjak Holdings  NSWCA 97 Priestley JA noted that
“One element in what happened from 1988 onwards must have been Mr Jim Bosnjak’s increasing prestige in the bus industry outside the family business…”
(I wonder if it occurred to his Honour that ‘prestige in the bus industry’ was an improbable idea). In Citibank v Papandony  NSWCA 375, one term of the distributorship agreement provided:
“Distributor shall always use the Marks in such a manner as to maintain their goodwill, prestige, and reputation.”
The sense of the word is unmistakably favourable in each case. There is no hint that, at least until the late 19th century, prestige connoted magic, trickery, or deception. The OED offers quotations from the 17th to the 19th century in support of the original meaning an illusion; a conjuring trick; a deception, an imposture. It comes from the Latin præstigium: a delusion, and ultimately from præstringere to bind fast, thus præstringere oculos to blindfold, hence, to dazzle the eyes. Johnson has prestiges: “illusions, impostures, juggling tricks”.
During the 19th century, prestige acquired the secondary meaning “Blinding or dazzling influence; ‘magic’, glamour; influence or reputation”. Supporting quotations in the OED include this from Fonblanque (1837): “The prestige of the perfection of the law was unbroken.” and this from Sir William Harcourt (1898): “People talk sometimes of prestige.‥ I am not very fond of the word. What I understand by prestige is the consideration in which nations or individuals are held by their fellows”. It was not until the 20th century that its current sense was fully established. So this from W. Somerset Maugham (1944): “Though she didn’t much care for [modern paintings] she thought quite rightly that they would be a prestige item in their future home.”
Prestidigitation (originally prestigiation) is a close relative of prestige, but has not moved socially. It still means sleight of hand or legerdemain. The first use of it noted by OED is dated 1859: the very time when prestige was beginning to shift its meaning. It filled the gap left by its upwardly mobile relative.
And tinsel? It’s doubtful flattery. It originally referred to the treatment of fabric, especially satin, “Made to sparkle or glitter by the interweaving of gold or silver thread” (not bad), but later, applied to “a cheap imitation in which copper thread was used to obtain the sparkling effect” (not so good). But the traditional Scottish meaning was worse. In the 14th century it meant “The condition of being ‘lost’ spiritually; perdition, damnation.” In the 15th century, as a word in Scottish law, it meant forfeiture or deprivation. And in Bell’s Dictionary of Scottish Law (1838) there appears the entry:
Tinsel of Superiority, is a remedy‥for unentered vassals whose superiors are themselves uninfeft, and therefore cannot effectually enter them.
Glamour and prestige are examples of that exclusive club which includes obnoxious, panache, tawdry, sanction and mere. They are words whose meanings have shifted over time (that’s common enough): these words have changed meaning 180 degrees. Rarer still are words which have two current meanings which are opposite. But enough for now: I will let you figure out what they are.
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:
· 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.
I am grateful to Barry Jones for drawing this to my attention: the Gettysburg address as Trump would have made it.
First, the original:
Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate…we can not consecrate…we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government: of the people, by the people, for the people, shall not perish from the earth.”
Now, the Trump version:
It was many, many years ago that our beautiful founders created this great nation for Americans to love deeply. It’s been 400 years, or 700 years. That’s the information I was given. We’ve had a tremendous number of years. And they’ve been good years, believe me, the best. No country in the history of the world has had years like ours. Because we were conceived in winning and dedicated to the proposition of America first. Always America first.
Now we have a huge fight on our hands. I’m telling you folks, we’re fighting to take back our country and start winning again. We’re fighting to make America great again. We’re fighting to make America first again. Some people have taken some very unfair hits in this fight. They’ve been hit by liberal activists and the dishonest fake news media. They’re gone now, but we remember their dedication to our movement, and we will be even more dedicated in their memory. We will commit ourselves to secure borders to keep our nation safe, extreme vetting to keep out the bad dudes, and the best trade deals to guarantee that our great American economy does not perish from the earth. Chris O’Carroll/Donald Trump
Two Greens Senators, Scott Ludlam and Larissa Waters, recently quit the Senate after discovering that they held dual citizenship: Ludlam is, apparently, a citizen of New Zealand, and Waters is, apparently, a citizen of Canada. You wouldn’t have guessed: both have normal Aussie accents, and both have worked tirelessly in support of Australia’s interests.
The sudden departure of Ludlum and Waters from the Senate focussed renewed attention on section 44 of the Commonwealth Constitution. Section 44 provides:
“44. Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power …
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
Senator Ludlam said “About a week or so ago it was brought to my attention that I hold dual-citizenship nationality of Australia and New Zealand”. Given that section 44 is the relevant provision, it is ironic that Scott Ludlam, who is now 47 years old, has lived in Australia for 44 years. He came here when he was a 3-year old.
A few days later, Senator Larissa Waters also announced she was leaving the Senate, as she had been born in Canada and came to Australia when she was 11 months old.
According to news reports on 20 July, Senator Richard di Natale is now trying to find papers showing that he has renounced any rights to Italian citizenship. It is significant to notice that, if your citizenship of another country is a thing of the distant past, digging out documents to show that you no longer adhere to that other country could be challenging. Given that a lot of people come to Australia as young children born in another country, or are born here to parents who came here from another country, the challenge is a large one. And add to this that you would have to find out whether the law of the country where you were born, or where your parents came from, recognised you as a citizen in the particular circumstances.
In a multi-cultural country like Australia, it looks a bit crazy.
When a person is elected to the Commonwealth Parliament, they take an Oath of Allegiance in the following terms:
“I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, So help me God”
This is a little less comprehensive than the Governor-General’s Oath of Office:
I, [name], do swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her heirs and successors according to law, in the office of Governor-General of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. So help me God!
It is mildly surprising that members of the Parliament have to swear allegiance to a person who would be disqualified from being a member of the Australian Parliament. Queen Elizabeth the Second is a British national, she is not a citizen of Australia, but she is our Head of State. It is also disconcerting that the Governor-General is not constrained in the way members of parliament are. the governor-General might or might not be a citizen of Australia, and traditionally was a British, but not an Australian, national.
But putting those minor quibbles to one side, no-one has ever suggested that Ludlam, Waters (or any other Greens member) has been untrue to their oath of allegiance. Given that their connection to New Zealand or Canada respectively is so remote, and so slight, that is not surprising. Whatever your views about Greens policies, Australian democracy is the weaker for losing Senators Ludlam and Waters. We should consider very carefully whether section 44(i) is too wide and indiscriminate in its reach.
And here is Ian Holland’s take on the same question, published on 20July 2017 in the Brisbane Times
A consortium of international lawyers, led from England, has asked the prosecutor at the International Criminal Court to take action against Australia for crimes arising out of its policy towards asylum seekers.
The Consortium has issued a 52-page Communiqué which alleges that the Australian Government is guilty of international crimes because of its policy of indefinite mandatory detention of refugee “boat people” and their forcible removal to Manus Island (part of Papua New Guinea) and Nauru (which is called the Pacific Solution).
The Communiqué fully explains that the Pacific Solution, which was revived in 2012 and remains in place, appears to have, as its primary objective, breaking the spirit of the people held on Manus or Nauru.
The mistreatment of asylum seekers is not limited to the Pacific Solution. Christmas Island which is part of Australia, more than 1500 kilometers north-west of mainland Australia, also had detention centres.
The people are kept in these “Offshore Processing Centres” whilst their asylum claims are processed. Reports of cruelty and mistreatment are numerous and getting more serious.
The Communiqué is supported by witness evidence from doctors, workers, visitors and former detainees at the Offshore Processing Centres. Key findings include:
As at 31 March 2014, there were 153 babies, 204 pre-schoolers (aged 2 to 4 years old), 336 primary school aged children, and 196 teenagers in Immigration Detention. As at 31 January 2016, 142 children remained in Immigration Detention.
The average child spends 231 days in Immigration Detention.
On average, the general population of refugees spend 457 days in Immigration Detention.
There is inadequate food and water, a lack of medicine and medical treatment, overcrowding, and a subsistence of violent incidents. Further, the length of detention is generally indefinite at the outset.
Conditions are unhygienic. On Nauru, showers are generally restricted to 30 seconds each day. Staff have said that the water has run out on multiple occasions, with overflowing, blocked toilets and faeces on the floor.
Reports from the United Nations High Commissioner for Refugees are highly critical of the Pacific Solution and Australia’s treatment of those seeking asylum.
Amnesty International has also issued several reports equally critical of Australia’s policies towards refugees and the conditions in which they are held.
The Communiqué cites precedents in international law which show that Prime Ministers and Ministers for Immigration in Australia, Nauru and Papua New Guinea could be held personally responsible as perpetrators of crimes.
The lawyers behind the Communiqué consder that there is no option remaining, other than the International Criminal Court (ICC). Previous legal action before the UN Human Rights Committee, UN Human Rights Council and the UN Working Group on Arbitrary Detention (WGAD) have not changed the Australian Government’s course. Asylum seekers who have had their detention recognised as arbitrary by the WGAD and are still in detention over a year or more later – including those with children. The previous Australian Prime Minister Tony Abbott, in response to comments by the UN Special Rapporteur on Torture, stated that ‘Australians are sick of being lectured to by the UN’.
As such, the ICC is really the venue of last resort.
Courtenay Barklem, former human rights adviser at the Law Society of England and Wales said: “This scandal sullies Australia’s record on human rights. We expect Australia to have higher standards and not to mistreat some of the most vulnerale people through deliberate government policies. This diminishes Australia’s reputation in the eyes of the international community.”
It names every Australian PM and Immigration Minister since 2002, as well as Mr Baron Waqa (current Nauruan President and Minister for Foreign Affairs and Trade). It details the cruel treatment of boat people by successive Australian governments: communique-to-icc
Yes: the Eureka Stockade, 1854, was a terrorist event by our contemporary legal standards. The current definition of “terrorist act” is set out below. It’s complex, but the bottom line is this: if an ordinary criminal act of damage to property or person is carried out in order to intimidate the government or the public, it is a terrorist act. The Eureka Stockade involved fairly serious criminal conduct: 30 people were killed. and it was explicitly for political purposes: they wanted to force the Victorian government to allow miners (who paid high mining licence fees) to vote. Their sentiment was part of the idea expressed 81 years earlier in America: the Boston tea party of 1773 and then the American war of independence were clear expressions of the sentiment: no taxation without representation.
The leaders were charged with high treason, but they were acquitted. this was generally regarded as an expression of public sympathy for their cause. One of them, Peter Lalor went on to be Speaker of the Victorian Legislative Council (upper House) in 1880.
The diggers swore an oath on 30 November 1854: ‘We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties’
The Commonwealth Criminal Code Act (1995) defines”terrorist act” in section 100.1. You can see the full version here. Here is an abbreviated version:
“terrorist actmeans an action where:
(a) the action falls within subsection (2)…; and
(b) the action is done with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or …”
However it will not be a terrorist act if it falls within sub-section 3:
“(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or …”
It is a nice historical irony that another icon of Australian history is also bound up in terrorism. Ian Jones, the foremost authority on Ned Kelly, says Kelly’s activities in North-East Victoria had the ultimate objective of establishing a separate colony in that area. Kelly’s Jerilderie Letter adds credence to that suggestion. If his objective was a political one, then his murderous exploits fit him neatly into the modern legal definition of a terrorist.
It makes the point that, especially in disadvantaged suburbs, Myki fares compete with a kid’s ability to get breakfast or buy books:
“There are many poor families in this school community who can’t even feed their children breakfast – they are fed through the school. Many families can’t afford the initial payment for Myki.”
“A lot [of students] stay at home, miss out on school until they can top up [Myki], starting the cycle of educational disadvantage.“
In the course of 12 years at school, a student will pay about $7,500 in public transport fares. Public transport is an important integer in our social life. Making sure kids can get to school is essential. Public transport is not just about revenue raising.
The system is complex, even for adults, and especially for kids:
“I helped one boy to contest fines…. I made numerous phone calls…tried to explain that he had a mental illness… also had an insecure home life… I spoke to three different people three times, got the same response, then someone said, ‘go and plead the mercy of the Magistrate’. Going to court then causes much stress and anxiety. In fact, this boy was struggling to speak in sentences. I can’ t imagine him going to court. I haven’t heard from him, so I don’t know what happened to him.”
We should never allow the cost of public transport, and the complexities of the system of fines, get in the way of a kid’s education.
The Report includes some very sensible recommendations, including:
1. Provide free public transport travel to all passengers up to 18 years of age and to any passenger who is a secondary student where their parent, carer or guardian is in receipt of Centrelink income or a healthcare card.
2. Accept identification issued by any authorised educational institution as evidence of age or student status for the purposes of free travel.
3. Authorise educational institutions to issue Myki travel cards to students free of charge.
4. Cancel all outstanding public transport fines related to Myki ticketing issues and fares which were incurred while a young person was under 18 years of age.
5. Abolish the public transport fines system for all young people under 18 years of age.
If you value the education of children, urge the Victorian Government consider the contents of this Report.
Here is a story from a Melbourne man who got bullied into paying $75 on the spot even though he had not even been on public transport at all!
“On 24/09/2014, I was crossing Collins Street in Melbourne CBD at a point where there is also a tram stop. There was a Public Transport official on the platform of the tram stop, busily writing a ticket for somebody else as I walked past him. He stopped me as I passed him and he asked to see my validated MYKI card. I said that I don’t have one, I do not use public transport and I was just crossing the road. He claimed that he saw me step off a tram, which was quite impossible, given that he was preoccupied at the time writing out a ticket. Anyway, he then proceeded to issue me with a fine, and when I stated that I did not wish to provide my personal details to him since I had done nothing wrong, he called a nearby policeman over. Between them, they proceeded to intimidate me to the point where I reluctantly agreed to pay a $75 on-the spot fine on my credit card.
As I said, I felt intimidated by the two of them, and they left me with little choice. If I had not either provided my personal details or allowed the public transport officer to process an on-the-spot fine against my credit card, the policeman implied that I would be arrested. If I provided my personal details and allowed the public transport officer to issue me with a normal fine, I was of the belief that if I then wanted to contest it in court, it would end up costing a lot more than $75. I was very much bullied into submission!” (emphasis added)
What is of real concern is that I am told Public Transport officers operate on a quota: they have to book a certain number of people a day. And this is what happens.
I have recently been sent the following very disturbing story:
Alan Morison is a former senior editor of the Melbourne newspaper, The Age. For approximately a decade he has been the owner and editor of an online news service called Phuketwan, which is based in Phuket, Thailand. Chutima Sidasathian is one of his reporters and a colleague.
Alan and Chutima have (along with other reporters and NGOs) been at the forefront of reporting of human trafficking of the Rohingya from Burma through Thailand and into Malaysia, as well reporting on other human rights abuses against them. They have also helped larger news services such as Reuters by providing vital contacts for their stories.
In December 2013 the Royal Thai Navy charged both Alan and Chutima with criminal defamation and a breach of the Computer Crimes Act for reprinting verbatim and in quotation marks, a 44-word paragraph from a Reuters story. That paragraph read:
“The Thai naval forces usually earn about 2000 baht per Rohingya for spotting a boat or turning a blind eye, said the smuggler, who works in the southern Thai region of Phang Nga [north of Phuket] and deals directly with the navy and police.”
They were charged 5 months after the article appeared.
The paragraph does not even name the Royal Thai Navy but refers to “Thai naval forces.” Unfortunately, the translator for the Royal Thai Navy elected to translate the words “Thai naval forces” to “Royal Thai Navy”
The vague term “Thai naval forces” is apt to describe the Thai Marine Police, militia commanders as well as the Royal Thai Navy. But a bad translation has resulted in Alan and Chutima being charged with criminal defamation and a breach of the Computer Crimes Act.
Neither Reuters nor any of the other news services which have run the story have been charged: only the journalists have been charged. They face the prospect of 7 years in a Thai jail.
Please let your local Federal MP know you are concerned for the way Alan and Chutima are being treated. Do what you can to make sure that Thailand (which depends significantly on the West) knows that their handling of this case is being closely watched.
On 20 May 2015, the Australian Parliament passed the Australian Border Force Act. The Act came into force until 1 July 2015.
It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down. What is really alarming about the Australian Border Force Act is that it shows the willingness of the government to suppress the facts connected with its brutal mistreatment of asylum seekers. I think the attempt will fail, but it should not have been made in the first place. It is of a piece with Tony Abbott’s response to Q & A allowing a question from Zaky Mallah to go to air: instead of regretting an error of judgment, he asked “Whose side is ABC on?”. Abbott appears to think that the best way to deal with the world is to ignore facts which contradict your view of it.
Section 42 of the Australian Border Force Act makes it an offence (punishable by 2 years’ imprisonment) for an “entrusted person” to “make a record of, or disclose” protected information.
“Entrusted person” is widely defined, to include various officials in the Border Force, as well as officers of the Migration Department. This includes people who are “Immigration and Border Protection workers”. That class is defined as including people who have been designated by the Minister, as a class, to be officers. On 27 November 2003 the then Minister designated in writing employees of various service providers to be officers.
Accordingly, an employee of a detention centre service provider is, by definition, within the definition of “officer” in subsection 5(1) of the Migration Act 1958 and is therefore within the definition of “entrusted person” in the Border Force Act.
The restriction in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However the exceptions include these:
disclosure to an authorised person for a purpose relating to the protection of public health, or the prevention or elimination of risks to the life or safety of an individual or a group of individuals; (s. 44 & s. 45 in conjunction with s. 46(d))
disclosure to an authorised person for the provision of services to persons who are not Australian citizens; (s. 44 & s. 45 in conjunction with s. 46(j))
section 48 has arguably the most important exception:
“48 Disclosure to reduce threat to life or health
An entrusted person may disclose protected information if:
(a) the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and
(b) the disclosure is for the purposes of preventing or lessening that threat.”
In my opinion, if a health worker learned facts while employed by a service provider in detention and genuinely believed, on reasonable grounds, that those facts represented a serious threat to the life or health of one or more asylum seekers, and, that disclosing those facts might help prevent or lessen that threat, the disclosure would not constitute an offence.
Similarly, if any other employee of a detention centre operator formed the same belief, and disclosed the facts believing that disclosing them might help prevent or lessen that threat, the disclosure would not constitute an offence.
It is not clear from the Act whether disclosure is prohibited of facts learned before the Act came into force but disclosed after the Act comes into force. The normal principle against retrospective criminal laws tends to the result that the Act would not apply in those circumstances, but it is not clear.
Two practical matters remain. First, the Act came into force on 1 July. Disclosure before then cannot be a breach of the Act.
Second, whether a prosecution would be brought in any particular case is hard to guess. If the disclosure was such as to attract a possible defence under section 48, a government acting sensibly would recognise that a prosecution would provide an opportunity for the accused to explain – in the very public forum of court proceedings – exactly what is going on inside detention centres and why those things present a serious threat to the life or health of an individual (or individuals) in detention.
The defence under section 48 is important. It is arguably more powerful than normal whistle-blower defences. The most disturbing thing about the Australian Border Force Act is its apparent attempt to hide the iniquities which are happening in immigration detention, on-shore and off-shore.
Shameful things are being done in our name, on out taxes and Australia’s reputation internationally is being degraded rapidly. The only favourable thing which hass been said about Australia’s policy in relation to asylum seekers was said by Katie Hopkins in the London Sun a few months ago. Her compliment was diminished by the fact that she referred to boat people as “vermin” and “cockroaches”. I would prefer Australia not to have the good opinion of someone who thinks like that.