Magna Carta-myth and reality

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

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

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

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

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

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

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

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

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

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

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

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

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

The barons were not happy.

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

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

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

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

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

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

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

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

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

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

And there are plenty of surprises:

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

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

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

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

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

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

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

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

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

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

Together, these became Article 29 of the 1225 version:

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

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

Sir Edward Coke

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

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

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

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

John Johnson was also known as Guy Fawkes.

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

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

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

The Petition of Right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The US Bill of Rights

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

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

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

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

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

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

Magna Carta 1225

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

US Bill of Rights

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

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

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

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

The principle of legality

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

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

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

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

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

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

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

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

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

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

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

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

 

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

[2] pronounced “Cook”

[3] the power to make laws

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

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

Michael Kirby Oration 3 July 2010

PRINCIPLES, PRAGMATISM AND POLITICS

Julian Burnside

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We reflect on their past mistreatment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does Art Matter

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.

A Bit About Words: Misdemeanours

High Crimes and Misdemeanors

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:

    1. a.1.a Evil behaviour, misconduct. Now rare.

b.1.b An instance of this; a misdeed, offence.

    1. 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.

Still More about Words: Glamour

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 [2001] 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 [2002] NSWCA 124 at [114] 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 [2009] 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 [2001] 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 [2002] 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.

5 November and the Gunpowder Plot

5 November 1605: The Gunpowder Plot

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Congress, July 4, 1776

The Unanimous Declaration of the Thirteen United States of America

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

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

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

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

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

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

(a) humane treatment;

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

(c) release at the end of hostilities

The regime for treatment of criminal suspects is also clear:

(a) humane treatment;

(b) no obligation to answer questions;

(c) no detention without charge;

(d) prima facie entitlement to bail when charged;

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

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

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

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

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

“Positive:

· Preserves flexibility:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In 2005 further anti-terror legislation was introduced.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lord Hoffman said:

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

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

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

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

 

Trump’s Gettysburg Address

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

Parliament and Dual Citizenship

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 

Complaint to International Criminal Court names Abbott, Morrison, Dutton, Turnbull

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

Was Eureka a terrorist event?

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 act means 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.

An index to this blog (alphabetical order)

#hushtag
A Blunt Assessment
A Brief Account Of Australias Offshore Detention Regime
A Christmas Letter From Manus
A Classic Rant Against Peter Dutton
A Letter To Minister Dutton From A Refugee Advocate
A New Account Of The Ways We Manage To Mistreat Asylum Seekers. Read This And Blush
A Plea From Manus
A Proposed New Refugee Policy For Australia
Accomodation For Refugees
Ai Weiwei
An Alternative To Offshore Detention
An Angel Visits Malcolm Turnbull
And More Bad Goings On At Manus
Australias Offshore Torture Regime
Befriend A Child In Detention
Benaud Piano Trio Seeking Sponsor For Composition
Bigotry And Terrorism In More Than 140 Characters
Border Force
Border Force Cracking Down At Mita In Victoria
Calling Boat People Illegal Is A Lie
Cash For People Smugglers
Conditions In Immigration Detention Deteriorating
Corruption On Nauru Your Taxes At Work
Cruelty In Australias Offshore Detention Camps
Data Retention Legislation Act Now Before Its Too Late
Detainees In Manus Island Face Grim Prospects
Detention Australian Style
Detention Is Torture
Detention On Manus Illegal Supreme Court
Deterrents And Disincentives
Dutton On The Rampage
Fact Checking Pauline Hanson
Fare Go Report Rethinking Public Transport
From The Big Bang To The Present In 12 Months
Gillian Triggs, John Basikbasik, And Politicians Who Play God
Guards Conduct In Nauru Getting Worse
Haitch Or Aitch
Hal Wootten Lecture 2015 The Bludgeoning Of Chance
Islamophobia Rampant
Kate Durhams Speech At The Opening Of Home Here And Now
Keep The Arts Alive At Fortyfive
Let Them Stay
Lets Get Labor To Tell The Truth About Refugees
Letter From Manus
Letter From Manus
Letters To Nauru Now The Department Lies Again
Lnp Only Pretends To Be Compassionate
Magna Carta, 800 Years On
Manus
Manus Island: What Will It Take To Shock Us
Manus: An Emotional Rant
Manus: Bad And Getting Worse
Mistreatment Of Refugee Brought From Nauru For Treatment
Mohammad Albederee Update
More Bad News From Manus
More Bigotry From Sonya Kruger
More Horrors At Mita
More Misery Christmas On Christmas Island
More Mistreatment On Manus
Mourning And Weeping From Hell
Myki: Authorised Officers Behaving Badly
New Get Up Campaign To Get Dutton Out
News From Australias Gulags
News From Nauru
No Kindness For Mojgan
Norfolk Island
Not In My Name
Offshore By Madeline Gleeson
Rebranding The Nation
Refugees In Terror On Nauru
Refugees Write To Png Supreme Court
Remembering Refugees As Christmas Approaches
Schrödingers Refugees
Solitary Confinement In Manus Detention
Stopping The Boats Doesnt Stop The Deaths
Strip Searched In Lygon St
Strip Searches On Nauru
Supporting Human Rights Or What Is Left Of Them
Thailand Prosecutes Phuketwan Journalists
The Australian Border Force Act Labors Role
The Australian Border Force Act: Trying To Silence Health Workers
The Australian Now Quotes Twitter
The Border Force Hits Town: Operation Fortitude
The Drowning Argument
The Drowning Excuse
The Election
The Impact Of Cuts To Art Funding
Threatening Our Way Of Life
Tim Wintons Palm Sunday Plea: Start The Soul Searching Australia
Tom Ballard
Tom Ballard Writes About Refugee Stories
Tony Abbott Is A Bully Over Un Convention Against Torture
Turnbull Posing As Compassionate
Two New Projects Which Bear Witness To Mistreatment Of Asylum Seekers
Un Rapporteur Australias Treatment Of Asylum Seekers Breaches Torture Convention
Unrepresented Refugee Applicants
Update From Manus
What Manus Is Like
What Sort Of Country Are We
When People Bother To Ask Me Why I Support Refugees
Why Gag Doctors In Detention Centress What Are We Hiding
Why You Should Care
Wilson Security
Wind Farm Music Dedicated To Tony Abbott
Write To Federal Mps About Refugee Policy
Year 12 Student Taken From School And Put In Detention
Young Boy Held In Manus
Zaky Mallah, Steve Ciobo And Q & A

Fare Go report: rethinking public transport

WEstJustice today released a ground-breaking report called Fare Go: Myki, Transport Poverty and access to education in Melbourne’s West.

Here is the report: Fare Go Report

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.

More outrages on the flawed Myki system in Melbourne

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.

Journalists facing jail: mentioned Thai naval forces & Rohingyan refugees

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.

They feature in the recent 4 Corners episode dealing with Rohingyan refugees who are smuggled through Thailand: http://www.abc.net.au/4corners/stories/2015/06/22/4257490.htm

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.”

http://phuketwan.com/tourism/thai-military-profiting-trade-boatpeople-says-special-report-18454/

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.

 

The Australian Border Force Act: trying to silence health workers

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.

Why gag doctors in detention centress? What are we hiding?

Here is a link to a good article in the British Medical Journal, written by David Berger.

On 20 May 2015, the Australian Parliament passed the Border Force Act.

It includes secrecy provisions which have potentially very far-reaching consequences, but it is to be hoped that these provisions will be read down. The Act does not come into force until 1 July 2015, so until then no-one is bound by its restrictions.

Section 42 of the 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. The service providers include IHMS as well as the companies which then operated the detention centres.

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.

In any event, an employee of Transfield or Wilson Security or IHMS 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.

This represents a drastic gagging of Australians and others who work in the refugee detention system.  Presumably the government is aware that bad things are happening in Australia’s detention system, and it is keen to suppress any information about what goes on.  This is consistent with a long-standing ban on juournalists entering detention centres.  It is consistent with Nauru imposing an $8,000 application fee if a journalist wants to apply for a visa to go to Nauru: the fee is not refundable even if the visa is refused.

In short, Australia is doing everything it can to conceal its iniquitous mistreatment of asylum seekers.

What is happening in detention centres, both in Australia and offshore, is profoundly damaging to the health of people held there.  It takes about 12 months’s detention to drive people to hopelessness and despair. That is when they start suffereing serious mental problems.  It is when they start harming themselves.  And it is important to remember that boat people have NOT COMMITTED ANY OFFENCE by coming to Australia as they have.  They are NOT ILLEGAL.  They are NOT CRIMINALS.

It is no great surprise to learn that if you lock up an innocent person indefinitely, they will eventually break.  That is Australia’s dark secret: we are deliberately destroying people by detaining them indefinitely in shocking conditions.  And the government is anxious to ensure that information about what we are doing does not get out, because they know most Australians would be appalled if they knew the truth.

Every Federal MP who voted for the Border Force Act, and every Federal MP who supports the continued hard line on boat people deserves the contempt of the nation.

But there is still hope, despite the miserable quality of our Federal MPs.

The restriction on disclosure found in section 42 is modified by a series of exceptions in sections 43 to 49. Most of those exceptions are not presently relevant. However 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 worker in a detention facility genuinely believed, on reasonable grounds, that facts he or she learned while employed by a service provider 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.  If the Immigration Department did not share that view and prosecuted the person, the prosecution would provide a useful showcase in which all the details of all the inquities in our detention system would be exposed.  Bring it on!

People smuggling: our Government is committing crimes

A lot has been said about whether our government paid people smugglers to return asylum seekers to Indonesia.  The evidence clearly suggests that it did.

Tony Abbott refused to deny that Australia had paid people smugglers, and said we would do whatever it takes to stop the boats.  Here he is on the Neil Mitchell programme on 3AW on 12 June 2015:

“Mitchell: These allegations that Australia paid people smugglers to turn back the boats – did it happen or not?
Abbott: Well, Neil, we don’t comment on operational matters but we are determined to ensure that illegal boats don’t get to Australia and we will do whatever is reasonably necessary to protect our country from people smuggling and from the effect of this evil and damaging trade that cost lives.
Mitchell: But surely we wouldn’t pay people smugglers, they’re criminals?
Abbott: Well, what we do is we stop the boats by hook or by crook, …”

“Mitchell: I don’t know about the relationship with Indonesia. They’re saying today they’re shocked by the allegations we paid people smugglers. Are we at least investigating whether it happened?
Abbott: Neil, I want to say to you and your listeners that I am proud of the work that our border protection agencies have done. I really am proud of the work that they’ve done and they’ve been incredibly creative in coming up with a whole range of strategies to break this evil trade …
Mitchell: Will we investigate whether it happened?
Abbott: As I said by hook or by crook we are going to stop the trade, we have stopped the trade, and we will do what we have to do to ensure that it stays stopped.
Mitchell: Will the Australian government investigate whether it happened?
Abbott: The short answer is the Australian government will do whatever we need to do to keep this evil trade stopped.
Mitchell: Including paying people smugglers?
Abbott: We will do whatever we need to do to keep this trade stopped because that’s what the public expects. …”

“Mitchell: Prime minister, will the Australian government investigate whether it happened?
Abbott: Um, Neil, what we are doing is saving life at sea. We are defending our national sovereignty, we are protecting our country from the evil trade of people smuggling and by hook or by crook we will do what is necessary to keep our country safe and to keep this evil trade stopped. …”

The Commonwealth Criminal Code makes people smuggling a criminal offence.  Here is an extract from the Criminal Code:

Subdivision A—People smuggling offences
73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Summarizing it, the elements are that you facilitate the entry of a person into a country where they are not a citizen and they do not go through ordinary entry procedures.

Paying people smugglers to take asylum seekers back to Indonesia appears to satisfy each element.

But even if money was not paid, we have been piling asylum seekers into orange lifeboats to return them to Indonesia.  That satisfies the definition of people smuggling even more clearly.  And the government makes no secret about it.

The question all Australians should ask is this: should a government engage in criminal acts in order to give effect to a policy, regardless whethe the policy is good or bad, popular or unpopular?

Proper respect for the rule of law demands that a government should not engage in criminal conduct.

Cash for People Smugglers

A lot has been said and written about the recent story that Australian officials paid people smugglers to return their passengers to Indonesia.

If the story is true, and Abbott’s repeated refusal to deny it suggests strongly that it is true, then it is clearly a criminal offence.  Section 73 of the Criminal Code deals with the offence of people smuggling.

Section 73.1 provides:

“73.1  Offence of people smuggling
(1)    A person (the first person) is guilty of an offence if:
(a)    the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b)    the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c)    the other person is not a citizen or permanent resident of the foreign country.
Penalty:    Imprisonment for 10 years or 1,000 penalty units, or both.

Fitting that to the probable facts: an Australian official pays smugglers to take refugees back to Indonesia; the official thereby facilitates the entry of the refugee into Indonesia; the entry does not comply with Indonesia’s rules for entry; the refugee is not a citizen or permanent resident of Indonesia.

On the same analysis, providing refugees with lifeboats and pushing them back to Indonesia is people smuggling, and simply pushing their boat back to Indonesia might also be people smuggling.

Our government speaks of people smuggling as if it only applies when Australia is the intended destination.  That is simply not so.

Tony Abbott, Scottt Morrison and Peter Dutton have described people smugglers in powerfully unflattering terms (“scum of the earth” etc) but they were describing themseves.

Interestingly, only the Attorney-General can bring a prosecution for the offence of people smuggling (section 73.5), so don’t hold your breath.

Gillian Triggs, John Basikbasik, and politicians who play God

The President of the Australian Human Rights Commission, Gillian Triggs, was attacked again in the Senate for her report in June 2014 concerning John Baskibasik.  For more on the political attack on Gillian Triggs, see this article in the Guardian Australia.

Basikbasik had been convicted of the manslaughter of his wife, and was sentenced to 7 years prison.  He served his term of imprisonment. But he is refugee and was in Australia on a protection visa. The Minister of Immigration cancelled his visa because of his conviction. Once his prison term was up, he was put in immigration detention, because he is a non-citizen who does not have a visa. He has been in immigration detention for 8 years on top of the prison sentence of 7 years.

He can’t be returned to his country of origin, because he is a refugee and would face persecution there.

The Commission’s report included the following observations:

44. Anyone with Mr Basikbasik’s personal history and custodial background would be likely to require support to re-integrate into the community. There is no information before me to indicate that the Commonwealth considered whether any risk which Mr Basikbasik posed to the community could be mitigated by a management plan to assist with his rehabilitation or by a requirement to reside at a specified location, with curfews, travel restrictions or regular reporting. It does not appear that it was necessary to detain Mr Basikbasik in an immigration detention centre.
45. Given the material before me, I find that Mr Basikbasik’s ongoing detention in an immigration detention centre is arbitrary within the meaning of article 9(1) of the ICCPR.

The Commission reported that holding him in detention for 8 years after he had served his term of imprisonment involved a breach of his human rights. The report noted that the Minister had not considered a less restrictive mode of detention and recommended that he receive $350,000 in damages. Under section 35 of the Australian Human Rights Commission Act, the Commission has power to make such recommendations, although it cannot order compensation.

Abbott said the commission’s ruling that Basikbasik “be released” was “pretty bizarre” and demonstrated “extremely questionable judgment”. The social security minister, Scott Morrison, said the decision was “absolute nonsense”. The immigration minister, Peter Dutton, said suggestions that “wife killers should be released back into the community with a cheque from the taxpayer are so far removed from the public view, it is just offensive”.

It is a pattern we have become accustomed to: Ministers of the Crown making foolish, misinformed comments about their political targets.

Mr Abbott’s comment was simply wrong: the Commission did not recommend that Baskibasik be released. Mr Dutton’s comment was misinformed and either foolish or dangerous. It depends on the unstated assumption that a person convicted of a serious offence should be held in detention for life, regardless of the sentence imposed by the Court. It depends on the assumption that a person’s right to be released when their prison term has been served should be capable of being trumped by the unsupervised decision of the Immigration Minister.

Most people would agree that Basikbasik’s offence was a very serious one. Most people would also agree that, once a person has served the term of imprisonment imposed by a Court, they should be released. Most people would find it uncomfortable to think that a person’s effective sentence could be converted to life imprisonment by the simple act of a Minister cancelling that person’s visa.