Kate Durham to open exhibition in Dandenong

On Thursday 16 November, Kate Durham will speak at the opening of the Home exhibition at the Walker St Gallery in Dandenong.  It includes works by Zia Atahi, Renee Dixson, Mahla Karimian, Pierre Mukeba and Zakiria Tahirian

Kate spoke at the opening of the Dandenong Annual Art Prize in 2015.

Defiant Dandenong

Dandenong Annual Arts Prize

Dear Dandenong,  Defiant Dandenong, look at you, how you’ve grown. I remember you, but not like this. Dandenong you are like a council of nations. Here in this intricate city is an Ark, as if from the bible, representatives of every breed, clan or culture are assembled here, a gathering has taken place, Moses would be pleased. What did this city know of the bewildering displacement, the loss of art and cultivation, the self-expression or the needs of the people of the world? Or how to welcome their tentative steps towards a cautious resettlement, in an often hostile terrain?

What is the purpose of the shelter, the vessel, the shield you have made here? The purpose is a very human one: to allow people to represent and to reproduce themselves, and their lives; to find passage to future generations, to stretch their allotted time and space on this ground, to leave the sea of turmoil. Like those animals in the Ark, people seek, if not deliverance from a place of evil, then a place to stay, the way a creature needs a habitat.

The people of the well-named Greater Dandenong recognised as an opportunity, other’s need to find a resolution to the search, a nest, a home, a full stop. With them, they also knew those exotic people would bring their freight of ancestry, their knowledge,,, their joke-bags, their grievance and losses, fears and expectations.

Their great enterprise will be to flourish, but also to pass on an indefinable essence, to pass it on, and to pass it on. Like the game Pass The Parcel: here is my gift, it may get smaller, but keep it, please keep it.

I’m picturing Dandenong, twenty years from now. Take yourself there now, on a little mental voyage. You may discover, that for the first time in a long while, white people, and certainly white females like me, even with the price of a ticket, can no longer travel to more than a quarter of the world’s surface, its prohibited or at least risky. White people are astonished, they have been the ones fussing over, visas, tickets and border control . We, no longer rule the world. we start to experience ostracism, mistrust and boundaries, like those immigrants only a generation ago.

The travel Industry, has not shut down, a vast commercial machine like that won’t rest or die, it will simply restrict or invent our horizons in a manner that suits its business model. They are already doing it. Travel is re-focussing, its offering has changed. In the 70’s the idea was to experience otherness, other cultures, other vistas. Nowadays its imperative to experience more about YOU. You, trekking, you on a mountain. you, snorkelling, you chilling on a beach, any beach. You taking a short trip around Europe within the sanitary and speedy confines of an ersatz Las Vegas: Disneyland for grown-ups, time – poor and afraid of anything but the highlights…

Some of you and some of these artists will remain here in Dandenong. Most of you will possess far more than highlights, you will have the fine grain, the memory, the advice of your former politics and parents. You will have a culture that is not thin, not dilute, but strengthened by its hybridity. Dandenong will be well known for its cultural curiosity and learning.

The artists in this show have something in common, mostly their otherness. In the future, artists like Valamanesh will not have such close, direct insight into Islamic Art and its cosmic gaze, but they’ll have this artist to guide them so the past won’t be so misunderstood. I’ve followed this artist for a while, admiring his cool austerity and wit.

I also know and have desired artworks by Guan Wei, also witty, with an out-sider’s idiosyncratic eye in relation to Australia.

Rhubaba Haider’s work spoke immediately to me of her feminine Hazara heritage. She has morphed that knowledge into something strong yet fragile and contemporary, and philosophical. Whilst retaining a great deal of typical Hazara woman’s discipline and personal restraint.

Khaled Sabsabi”s work turns like a Dervish on Sufi themes, that strange metaphysical branch of Islam which is becoming endangered. Thank you Khaled for preserving it.

Gosia Wlodarczak’s unsettled lines following and chasing life, restless and unfixable, charting her relationship to objects. She makes a cartographic record over time and space.

Kosar Majani’s work is highly symbolic and resonant. It speaks of unrelenting rituals and repetitions that we’ve never known or encountered, in our young country.

20 years from now we may find ourselves grateful that Greater Dandenong ignored the ”Team Australia“ slogans of some of the worst leadership known in this country. That Prime Minister tried to frighten us about the living and cultural aspirations of others, demanding to know whose side we were on, challenging us to mistrust foreigners or the unfamiliar.

Fortunately we barely remember that Prime Minister, he left no relics or artefacts. Unlike these artists who have joined us in a gathering just like this to fill this once slight and shallow space with all our lives, heredity, children, art, adventures and exploration on the vast subject of US and WE. Not THEM or THEY.

Thank you Dandenong, dear Dandenong: you are the Ark. Pass it on, pass it on.

Speech: Australian Friends of Palestine Association

Australian Friends of Palestine Association (AFOPA) is a not for profit incorporated association based in South Australia. It is run professionally by a voluntary Executive Committee and volunteers. It was established in 2004, by Paul Heywood-Smith QC and others.

AFOPA’s primary concerns in respect to Palestine are:

  1.  the current humanitarian crises that exists in Palestine as a result of the Palestinian disposition of land and the provision of humanitarian support; and
  2. consistent with the position of the United Nations, support for a two-state solution to the Israel/Palestine conflict based on 1967 borders; it calls for Palestinian people to have the right to self-determination by recognition of the Palestinian State. This is fundamental to the achievements of social and economic freedom, and equality before the law.Australia is one of a few countries (along with Israel, the United States and Canada) that does not recognise the Palestinian State. AFOPA advocates for a change in this position. Australia’s recognition is required to contribute to the peace process. A Roy Morgan poll this year showed that 73 per cent of Australians support recognising Palestinian statehood.

This is a speech I gave to the annual dinner of AFOPA in Adelaide on 4 November 2017.

It sounds pathetic: I just did not know.

I did not know what was being done to Palestinians.

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

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

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

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

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

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

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

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

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

Palestinian children as young as 12 are being:

  • Arrested in their homes, at night, between 10pm and 5 am
  • Taken away, blindfolded, hooded, their hands tied
  • They are often placed on the floor of the van that takes them away, and they are taken by long, slow routes, so they often spend hours on the floor in the back of the van
  • They are physically abused: head-butted, kicked, tasered, dragged across the ground
  • They are strip-searched and threatened

They are interrogated without being told they are entitled to have their parents present; without being told they are entitled to have a lawyer present; without any warning that they have the right to remain silent. One Palestinian child reports: “The interrogator told me I had the right to remain silent and to consult a lawyer. I told him I wasn’t going to say anything before I was allowed to speak to a lawyer. He became angry and slapped me when I said this.”

Some Palestinian children have been held in solitary confinement for weeks on end.

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

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

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

Israel has been warned that these things are a gross violation of international human rights norms. Its response has been to suppress information about what it is doing.  But it has not improved its behaviour.

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

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

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

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

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

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

And Australia has a terrible record for mistreatment of children whose parents brought them to Australia as boat people: they get locked up indefinitely, in what the legal system regards as…yes…”administrative detention”. No charge, no trial. Just like we say to justify the indefinite detention of boat people, who come to Australia seeking a safe place to live.

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

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

Arundhati Roy, the Indian writer who is famous here for writing “The God of Small Things”, is more famous in her home country for her constant campaigning against the needless creation of dams which serve no useful purpose but which displace small farm holders in the valleys above and below the dams.  Arundhati Roy, in one of her essays a couple of years ago, said that “a thing once seen cannot be unseen.  And when you have seen a great moral wrong, to remain silent is as much a political statement as to act against it.”

So: now you know what is being done to the Palestinians.  Now is the time to speak against it.

 

 

 

Changes to Citizenship Laws

The Senate Legal and Constitutional Affairs Committee is holding an enquiry into proposed changes to the Citizenship Act.  The bill being considered is the “Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017”.

The Bill includes the following provision:

“At the end of section 46 Add:

Required information or documents

(4)              …

(5)              The Minister may determine:

          (a)              an Australian Values Statement; and

          (b)              any requirements relating to the Australian Values Statement….”

The Minister (that is, the Immigration Minister) is therefore given the power to decide what constitutes an appropriate statement of Australian Values. The significance of that power should not be underestimated.

The values which define a nation’s character are, typically, very diverse. It is not easy to imagine that every person in any nation would identify the same values as characteristic of that nation. The proposed amendments noted above would produce the result that adherence to Australia’s values would become a touchstone to citizenship. It seems odd then that one person should have the power to determine, for the nation at large, what its values are. For example, the history of Australia since white settlement could lead a person to suppose that Christian principles were central to Australia’s values. But that proposition would be inconsistent with aspects of Australia’s conduct (past and present) and inconsistent with section 116 of the Constitution, which says:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

It is worth noting that the proposed s. 46(5) may not prevent a Minister from including, in a Statement of Australian Values, a requirement to adhere to Christian principles. This would be objectionable on at least four obvious grounds:

  1. The fact of growing Islamophobia in the community;
  2. The fact that people from various religious backgrounds join the Australian community and contribute greatly to it;
  3. The fact that such a requirement would be inconsistent with section 116 of the Constitution, even if not in breach of it;
  4. The fact that the indigenous peoples of Australia embrace religious views which are pre-Christian.

It seems highly undesirable that any one person, whether a Minister of the Crown or not, should have the power to determine what the nation’s values are, especially when his or her determination has the potential to affect a person’s right to citizenship.

There is a further point. A Statement of Australian Values already exists, as part of the process of applying for permission to enter Australia. If it is a template for what is proposed, then we have a problem.

The Australian Values Statement, in Form 1281, provides as follows:

“AUSTRALIAN VALUES STATEMENT

This statement must be signed by the main applicant and each person aged 18 years or over who is included in the visa application, unless they have already signed it on the visa application form…

I understand:

  • Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, Parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good;
  • Australian society values equality of opportunity for individuals, regardless of their race, religion or ethnic background;
  • the English language, as the national language, is an important unifying element of Australian society.

…”

(emphasis added)

What is notable about the parts emphasised is that they are difficult to reconcile with the idea of imprisoning innocent people who have sought a safe place to live, and in particular they stand awkwardly with treating asylum seekers the way we do in order to deter others from seeking asylum in Australia.

If we are to have a Statement of Australian Values, the Parliament should ensure that it genuinely reflects Australia’s values as reflected by its conduct as a nation, and the Parliament should ensure that all members of the Parliament could, in good conscience, say that they embrace and live up to the Values reflected in the Statement.

It is notorious that Australia’s treatment of people seeking asylum has been trenchantly criticised by various NGOs. If we are to have a Statement of Australian Values, it should either reflect our willingness to behave in ways that had attracted that criticism, or else our conduct as a Nation should be made to conform to the Statement of Values. Failing one or other of these, the proposed Statement of Australian Values would only survive at the frontier where self-delusion meets self-congratulation.

And while it is true that the English language is important in Australia, there are some Federal MPs whose grasp of English is so tenuous that they would probably fail the Values Statement.

Submissions can be made online at http://www.aph.gov.au/Parliamentary_Business/ Committees/OnlineSubmission or via email to: legcon.sen@aph.gov.au

The text of the bill and the Explanatory Memorandum can be found here

A brief account of Human Rights activism

On 1 July 2017 I gave the inaugural Ralph Summy lecture for Ngara.

The event honoured Ralph Summy and was also the occasion of the award of the inaugural Australian Activists of the Year Awards.  The winners were Murrawah Johnson and Adrian Burragubba of the Wangan and Jagalingu Traditional Owners Family Council, for their tireless work in opposing the Adani coalmine, which will destroy the traditional lands of the Wangan and Jagalingu.

NGARA: Inaugural Ralph Summy Speech: 1 July 2017

WHAT SORT OF COUNTRY ARE WE?  WHAT SORT OF COUNTRY CAN WE BE?

Contents

Ralph Summy; … Two steps forward, one step back; … The Melian dialogue; … Slavery.; … The Zorg; … The American Declaration of Independence; … Dred Scott; … The Declaration of the Rights of Man; … The Universal Declaration of Human Rights; … The Trevorrow case; … Australian Values; … Conclusion

Ralph Summy

Today’s talk is given in honour of Professor Ralph Summy.

Professor Summy taught political science at the University of Queensland for more than 30 years. He established an interdisciplinary major in peace and conflict studies.

In 1971 he wrote a thesis called Australian Peace Movement 1960-67: A Study of Dissent. He wrote it for the purpose of a Master of Arts at the University of Sydney. It is an interesting thesis because it covers the history of a movement of which I was vaguely aware during my years of blind passivity. The period covered by his study begins in 1960 (when I was in Grade 6 at school, and hopefully I can be forgiven for not paying attention to what was going on) and ends in 1967, which was my first year at university and had become vaguely aware of things that were happening. The big name in political activism during the years that I remember included Jim Cairns. Jim Cairns gets numerous references in Ralph Summy’s thesis. It is easy to forget these days that the big issues back then included the nuclear arms race, the war in Vietnam and (in Australia specifically) conscription. I was acutely aware of the war in Vietnam and conscription because my birth date had come out of the ballot, by which people were chosen for conscription, and because I was a university student when I turned 18 I was able to defer my call-up until I finished my degrees. I finished at university in 1972. The Federal election that year was fought at least in part on the issue of conscription, and I was due to be called-up at the start of the following year. But Gough Whitlam won that election, and had promised during his election campaign to abolish conscription. He did so and as a result I wasn’t called up. That was a relief, of course. But it has to be conceded that I had voted against self-interest in December 1967, because I voted Liberal.

It is easy to forget that the 1966 election followed shortly after Harold Holt (who was then Australia’s Prime Minister) had said that Australia would go “all the way with LBJ”.

It is also easy to forget that Holt had been given the Prime Ministership by Sir Robert Menzies, who had begun his record run as Prime Minister of Australia in 1949 (the year I was born – I didn’t catch up with the news until a bit later) and Liberals continued to hold government in Canberra until 1972. Ralph Summy’s thesis includes the useful reminder that a Victorian SOS pamphlet included this sentence: “Why … the Menzies-Holt government committed Australian troops is because the government believes that Australia must blindly follow American policies in order to consolidate the Australian-American alliance, which the government regards as necessary to Australian security”.

The more things change, the more they remain the same.

The catchcry “all the way with LBJ” was universally recognized in Australia, although it originated in America. In March 1964, Democrat Party supporters in New Hampshire called “all the way with LBJ and RFK”. In October 1966, LBJ visited Australia and Harold Holt declared that Australia was “all the way with LBJ”. Holt had been treasurer until January 1966, when Robert Menzies stepped down as Prime Minister and handed over to Holt. Holt was sworn in as Prime Minister on Australia Day 1966. (Interestingly, his first Cabinet included Billy McMahon, John Gorton and Malcolm Fraser). LBJ’s visit to Australia was usefully timed in October 1966, because the Federal election was held in November that year.

Holt’s declaration that Australia would go “all the way with LBJ” was wildly contentious, because of course it was a direct reference to Australia’s continued involvement in the war in Vietnam. Holt disappeared in late December 1967, presumably drowned at sea near his beach-house at Portsea. So, his big issue and his death fit neatly into Ralph Summy’s thesis.

Summy’s thesis notes that the Parliamentary party of the ALP had made known in May 1966 that conscription would be a major issue in the election later that year. Arthur Calwell in a motion of dissent from the policies outlined by Harold Holt in his first statement as Prime Minister, noted as the first item “emphatic opposition to the dispatch of conscripted youths for service in Vietnam”. It is easy to forget what a contentious issue conscription and the war in Vietnam had been. It is altogether fitting that this speech is in honour of Ralph Summy, whose thesis provides such a powerful reminder of the simple truth that political activism can ultimately achieve results.

Tonight we honour Ralph Summy.

Two steps forward, one step back

Because Ralph Summy was an activist, and because the Australian Activists Award is to be presented tonight, I was asked to keep my talk largely upbeat. After all, activists should not be discouraged.

It will be no surprise to anyone here that occasionally I find it difficult to remain upbeat in my pursuit of something approximating justice for refugees in Australia. However, it is important to notice that political activism sometimes takes a while to meet its mark (for example, the activism summarized by Ralph Summy and which was in large part responsible for the end of conscription and the end of Australia’s involvement in the Vietnam War). And equally it is important to notice that various other forms of political activism have also produced striking and enduring results – results which should still be celebrated.

The cause of human rights often advances and then slips back. We are in a slippage phase at present.

My general proposition tonight is that the slippage phases should not discourage us: taken in the long sweep of history, the activists are helping humankind make progress.

The Melian dialogue

Although I am sure there are many earlier examples, it is useful to start with Thucydides’ History of the Peloponnesian Wars. The second Peloponnesian war ran from 431BC until 404BC. Athens wasn’t doing too well and decided that it needed a launching place somewhere close to Sparta. The island of Melos was an ideal candidate. But the island of Melos had never done anything to harm the Athenians and was, in all possible respects, a neutral. The Athenians sent a delegation to speak to the commissions of Melos and explained to them fairly bluntly that they were planning to take over Melos and that there was an easy way and a hard way. They acknowledged that the Melians had never done any harm to the Athenians but then pointed out that this was irrelevant “You know as well as we do” they said “that justice is only relevant between equals in power. Where power is unequal, the strong do what they will and the weak suffer what they must” (the Melians stood their ground and Athens took them over the hard way: they murdered the men and raped the women).

Although it is easy to be cynical about our conceptions of justice, the legal system still aims to achieve justice and in particular justice of a kind which does not depend on whether the antagonists are equal in power or one weak and the other strong. It may not be a perfect system, but at least its objectives have taken us some distance from the theoretical underpinnings and harsh consequences of the Melian dialogue.

Slavery

Let me give another example of progress. It is easily forgotten how differently slaves were seen before the heroic and pioneering work of William Wilberforce in the late 18th and early 19th Centuries. Before Wilberforce started campaigning against slavery, slavery was common and accepted and, in some places at least, was regarded as fundamental to the continued economic prosperity of the British Commonwealth.

The Zorg

In 1781, a ship variously called The Zorg or The Zong (one appears to be a misreading of the other) set sail from the coast of West Africa, bound for Jamaica. The captain was Sir Luke Collingwood. As was the custom at the time, its cargo was fully insured.

The cargo comprised 470 slaves.

Because of faulty navigation and changes in the weather, supplies of food and water on the ship looked as though they might not last the distance. By the 29th November, 1781 overcrowding together with malnutrition and disease had resulted in the deaths of seven crew members and about 60 slaves. Captain Collingwood decided to throw a further 133 slaves overboard. By that extreme measure, he hoped that the remaining food and water would be sufficient for the balance of the voyage.

Perhaps not surprisingly, the case ended up in court: not on a charge of mass-murder but on an insurance claim. The insurer defended the case on the footing that the market value of the slaves had fallen below the insured value. There was no suggestion that anyone would be charged with murder. In fact, the Solicitor-General John Lee said that a master could drown slaves without any impropriety. He said: “What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder. They acted out of necessity and in the most appropriate manner for the cause. … The case is the same as if horses had been thrown overboard”.

The case of The Zorg is one which is almost inconceivable in modern times. In that simple proposition you see that we have, in fact, made some progress in our conceptions of justice. William Wilberforce was a great activist and although it took a long time he succeeded.

The American Declaration of Independence

It is easy to forget that, at least until the English Civil War, the received theory of Government was that Kings ruled by divine right and they could not safely be removed.

The English Civil War (1642-1647) was the result of growing tension between King Charles I and his Parliament but it had not been fought when the British colonized North America by establishing a settlement at Jamestown, Virginia in 1607. By 1773, the Americans had tired of being taxed by a British Government in which they had no say. Their direct expression of discontent was called the Boston Tea Party. The British Parliament had been trying to raise funds to help out the East India Company. It increased import duties by passing the Tea Act in 1773. On December 16, 1773, the so-called “sons of liberty” boarded three ships in the Boston Harbour under cover of night and threw 342 chests of tea into the harbour. This was a trigger for the American Revolution which began in 1775 and ran through until 1783. However, by July 1776, the revolutionaries had decided that the time had come to declare America’s independence from the British. On the 4th July, 1776, in congress, the 13 United States of America declared:

“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 entitlement, 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 power in such form, as to then shall seem most likely to affect their safety and happiness …”

The reference to “life, liberty and the pursuit of happiness” is widely known and universally famous. But the simple explanation of the nature of government and the source of power to form government is often overlooked but was truly revolutionary.

The Declaration of Independence was a truly revolutionary act, the result of years of careful thinking and calculated activism. Even though some of the large objectives of the preamble to the Declaration of Independence have not yet been achieved, it has to be said that it was a great triumph and a step in the right direction.

When I say that not all the objectives had been achieved, I have in mind in particular the case of Dred Scott

Dred Scott

Dred Scott was born a slave in Virginia, in 1799. He was owned by Peter Blow. The Blow family moved to St Louis, Missouri, in 1830. Missouri had been acquired in 1804 in the Louisiana purchase. It had been admitted to the Union in 1820, as a slave State, as part of the Missouri Compromise. The Missouri Compromise allowed Missouri into the Union as a slave State, but otherwise prevented the admission to the Union of slave States above 36º30’ north latitude. In effect, it guaranteed that slavery would not spread to the other States acquired in the Louisiana Purchase. It had been a hotly contested measure. Since Eli Whitney had invented the cotton gin in 1794, cotton had been a great source of wealth in the southern States, but its profitability depended on slave labour to pick the cotton.

In 1830, Blow sold Scott to Dr Emerson, an army surgeon. Emerson took Scott with him to his various postings. They spent the next 12 years in free States, principally Illinois. They returned to St Louis in 1842. Emerson died in 1846. His executors were his wife, and her brother John Sanford.

In 1846, Scott sued Mrs Emerson in the St Louis Circuit Court. In form, it was a petition for freedom, based on the fact that he had spent years in a free State, and was therefore released from slavery. A decision of the English courts (Smith v. Brown & Cooper (1705) 2 Salk 666) provided an argument that the simple fact of having spent time in a non-slave State meant that Dred Scott’s condition of slavery was dissolved

Judge Alexander Hamilton heard Scott’s case. A technicality in the evidence led to its failing. The Judge granted leave for a new trial. He won; but the decision was reversed by the Missouri Supreme Court in 1852.

By this time, Mrs Emerson had remarried. Her new husband was an abolitionist. She made over Scott to her brother and co-executor, John Sanford. Sanford lived in New York. Thus Scott was able to sue in the Federal jurisdiction, since the suit was between residents of different States. The action was for assault.

Sanford (erroneously called Sandford in the Court record) filed a plea in abatement on the basis that Scott was a slave and therefore not a citizen. Accordingly, so the argument went, there was no suit “between citizens of several States” and the Federal jurisdiction was not attracted. In other words, he sought to have the action struck out peremptorily as incompetent.

The matter was argued in December 1855, and was re-argued in 1856. Powerful interests wanted to retain the institution of slavery: American plantation owners, as well as English manufactureres and merchants. Slavery had been abolished in Britain and its Colonies by the Emancipation Act 1834, but that did not prevent English commerce from benefitting from it indirectly. Such was still the position when Roger Casement undertook his tour of investigation in the Congo Free State (1901-04), and Brazil (1906-11).

The first question in issue resolved to this: was a slave capable of being a citizen under the Constitution, so that his action against a citizen of another State would attract the Federal jurisdiction?

Chief Justice Taney and Justices Wayne, Nelson, Grier, Daniel, Campbell and Catron said that the answer to the first question was No. Taney J said:

“The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. …

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it.” (emphasis added)

The ideas expressed, and the intensity of the language used, strike the modern ear as shocking, especially in light of the introductory words of the Declaration of Independence (1776):

” … We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Taney J dealt with those words in this way:

“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included … for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted …”

McLean J (dissenting) did not agree in the result on this issue, but expressed himself in language not much happier than that of Taney J:

“In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognised them as citizens, and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida …” (per McLean J at 533).

Curtis J (dissenting) found in the words of the Constitution ample authority for the proposition that a slave could be a citizen of the United States.

The second question was whether a slave could become a free man by entering a free State. The question had precedents in English case law. In 1678, it had been held that if a Negro slave came into England and was baptised, he thereupon became a free man. If he were not baptised, he remained “an infidel” and was not freed: Butts v. Penney 2 Lev 201. This rule was later relaxed: in Smith v. Brown & Cooper Holt CJ had said:

“As soon as a Negro comes into England, he becomes free: one may be a villein in England, but not a slave.”

In Somerset v. Stewart (1772) 98 ER 499, Lord Mansfield had decided on a habeas corpus application that a Virginian slave who had arrived in London must be set free. Lord Mansfield’s decision is famous for its declamatory final sentence “The black must go free”. It is less well-remembered that his Lordship had tried to avoid having to decide the matter. He had said in the course of argument:

“… a contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches … The setting 14,000 or 15,000 men at once free … by a solemn opinion, is much disagreeable in the effects it threatens … An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future …” (emphasis added)

The majority in Dred Scott’s case held that the English authorities had no application in the different constitutional framework of the American Union. Specifically, the 5th Amendment prevented the slave being freed by passing into a free State. So far as relevant it provides:

“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

To allow that a slave be freed by virtue of travelling to a free State would involve a deprivation of property without due process. It is an interesting irony that a slave owner could not be deprived of ownership of his slave without due process, but the slaves were deprived of liberty without due process. The relevant difference is that slaves were not considered “people” for Constitutional purposes.

For good measure, 6 of the 7 judges in the majority held the Missouri Compromise to be unconstitutional, as contravening the 5th Amendment. Thus they struck down the measure which had, in effect, quarantined slavery to the southern States where the cotton industry was the principal source of wealth, and slave labour was the principal engine of that industry.

The Dred Scott case [reported under the name Scott v Sandford 60 US 393] was decided by the US Supreme Court on 6 March 1857. It provoked bitter controversy. It was one of the precipitating causes of the American Civil War (1861-1865). Abolition was the great question over which the war was fought During that war, on 19 November 1863 (87 years after the Declaration of Independence) Abraham Lincoln famously re-stated the founding proposition of the American Union:

“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. …”

In so saying, he was unequivocally advancing the cause of abolition. His address at Gettysburg is regarded as a clarion call for the abolitionist cause.

The Dred Scott case resulted in the resignation of Curtis J, and blighted the reputation of Taney J. He was a decent man and a fine lawyer. He had voluntarily freed his own slaves, at great personal cost, and had 35 years earlier described slavery as “a blot on our national character”. Ironically, the decision in the Dred Scott case is generally regarded as a blot on the record of the US Supreme Court.

The decision was an exercise in strict construction which reached an unpalatable result by chaining the words of the Constitution to their historic origins. In 1992 Scalia J. – himself no bleeding-heart liberal in matters of construction – said that “ … the Court was covered with dishonour and deprived of legitimacy” by the Dred Scott decision.

On 28 July 1868, in the aftermath of the Civil War, the effect of the decision was overturned by the 14th amendment to the US Constitution.

The Declaration of the Rights of Man and the Citizen

The French Revolution started in 1789. The Declaration of the Rights of Man and the Citizen was prepared at about the same time. It is not surprising to learn that Thomas Jefferson had a hand in drafting it. It was influenced by the political philosophy of the Enlightenment and principles of human rights, as the U.S. Declaration of Independence was. Jefferson had prepared the first draft of the Declaration of Independence.

The first five articles of the Declaration are immediately recognisable as a reflection of modern thinking:

  1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
  2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
  3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.
  4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
  5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law…

For all this, it is worth noticing that these principles expressly did not apply to women or slaves. And it is worth noting that in 1791 Olympe de Gouge prepared the Declaration of the Rights of Woman. The following year she was executed by guillotine.

Two steps forward, one step back…

The Universal Declaration of Human Rights

The next giant step forward resulting from activism which I would identify did not happen until the middle of the 20th Century, although I am sure there were plenty of other significant advances between 1776 and 1948.

It is widely forgotten that anti-Semitism was common through the Western world until the end of the Second World War. Arguably, anti-Semitism hasn’t disappeared but has simply gone underground. There are clear traces of anti-Semitism in the earliest version of Magna Carta. There are clear instances of anti-Semitism in Shakespeare, notoriously in the Merchant of Venice. But the horrors of the holocaust gave anti-Semitism the bad name it always deserved.

The Second World War gave rise to a new need to protect human rights. After the war ended, it was impossible – indecent – to permit a continuation of the anti-Semitism which has disfigured many countries (including England and Australia). The holocaust showed where that line of thinking leads if left unchecked. The Universal Declaration of Human Rights in 1948 and the Refugees’ Convention in 1951 were the most prominent expressions of a new global concern to see that those who fear persecution should be protected.

The Universal Declaration (10 December 1948) was the work of a surprising activist: Eleanor Roosevelt. She was the widow of Franklin Delano Roosevelt who had died shortly before the end of the Second World War. She was also cousin to Roosevelt and had grown up in the rich surroundings of the Roosevelt family. But Eleanor Roosevelt was a genuine egalitarian and had set her heart on responding decisively to the horrors of the Second World War.

When I say Eleanor Roosevelt was a true egalitarian, it is worth remembering that from the death of FDR in 1945 until her death in 1962, Eleanor Roosevelt spent most of her time at a small property called Val-Kill in upstate New York. Val-Kill is truly remarkable in a number of ways. It is strikingly plain. It is a very simple old farmhouse. The sitting-room is furnished with very ordinary chairs and very simple bookshelves. But there are photographs on the wall one of which is a photograph of Eleanor Roosevelt having tea in that very room with John F. Kennedy. Next to the sitting-room is the dining-room. The dining-room table seats 10 or 12 people. Many great heads of state dined at that table. But Eleanor Roosevelt was always conscious of the need to have equal numbers of locals whenever she was entertaining dignitaries. And the crockery on which dinner was served had been bought at a Five and Dime store. Eleanor Roosevelt must have been a truly remarkable person. Her sense of the equality of all human beings still lives and breathes at Val-Kill.

After the end of the Second World War, Eleanor Roosevelt set her heart on creating a Universal Declaration of Human Rights. It begins as follows:

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

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

As with the Declaration of Independence, some of the rhetoric goes beyond what has ultimately been achieved but it remains the case that for such a document to be universally acknowledged in the United Nations is a mark of progress to which all activists can aspire.

The Trevorrow case

The Trevorrow case happened half a world away, and 150 years later.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After a hard-fought trial, the Judge found in Bruce’s favour, and awarded him a total of about $800,000.

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

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

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

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

We reflect on their past mistreatment.

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

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

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

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

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

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

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

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

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

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

Australian Values

In recent times there has been considerable discussion of the statement of Australian values which, it seems, will become inextricably linked with applications for citizenship. The statement includes the following:

“Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair-play and compassion for those in need and pursuit of the public good;

Australian society values equality of opportunity for individuals regardless of their race, religion or ethnic background …”

It would be good to see Federal parliamentarians place hand on heart and swear that these are values they embrace. The wilful mistreatment of asylum seekers sits uncomfortably with these values.

Conclusion

As I have been asked to be optimistic in this talk, I won’t say much about refugees, nor will I attempt to reconcile the Statement of Australian values with the facts surrounding our treatment of refugees. But let me give you an example that we might choose to follow. Just a few weeks ago I was in Jordan, investigating their treatment of refugees. Jordan is a country which faces some interesting challenges: it has Israel and Palestine on the west; Iraq on the east and Syria on the north. One way or another, this means that quite a few uninvited refugees have walked from one or other of those countries into Jordan, looking for a place of safety. In addition, Jordan has a population of only 9.6 million people and a fairly fragile economy, because it does not have any oil.

In the north of Jordan, just about five kilometres from the Syrian border, is a refugee camp called al Za’atari. The Za’atari camp presently holds about 80,000 people, all of whom arrived in Jordan as uninvited refugees. But for the fact that they arrived on foot, they would have been boat people. The Za’atari camp is an open one: people inside the camp are allowed to get jobs outside the camp and they go out each day and return each evening. The camp contains almost 2,000 shops which have been established by refugees and are run by refugees. They include not only the best falafel shop I’ve ever been to but also two shops where you can hire bridal gowns!

The 80,000 people in the Za’atari camp are just the tip of the iceberg. There are about 1 million refugees living in the community in Jordan. They are all informal refugees: that is, refugees who have simply turned up looking for protection. To put that figure in perspective: in the approximately 60 years since Australia signed the Refugees’ Convention, we have received fewer than 1 million refugees in total. Of that group, fewer than 100,000 were informal refugees. It need hardly be said that in recent years Australia has been hostile, to the point of paranoia, about informal refugees arriving here. Jordan manages informal refugees with remarkable grace, and yet it has not signed the Refugees’ Convention. In the last few years it has received far more informal refugees than we’ve received since we signed the Convention 60 years ago, but Jordan treats them well.

So, if you are an activist in relation to the interests of refugees, keep at it. Human decency will eventually find a way. Sometime, perhaps even in the near future, Australia will find that it is able to respond to refugees as generously as Jordan does.

To conclude, on the same trip that took me to Jordan I was taken to Lesbos. Lesbos is a Greek island just four kilometres off the coast of Turkey. As a result of that little accident of geography, Lesbos has received a lot of refugees who have fled through Turkey and who want to get to safety in Europe. A lot of them land on Lesbos. While I was in Lesbos, I heard a story about a beach there which, occasionally, has a big tide which washes up tens of thousands of starfish. The starfish are stranded on the beach as the tide recedes. If they stay on the sand they will dry out and perish. A little girl who lived in Mytilene, the main town on Lesbos, was very concerned about the starfish. She went down to the beach. A grown-up said to her “you can’t save them all”.

Her response was to bend down pick up one starfish, throw it into the ocean and say “well I saved that one”.

And that is my message tonight: every one of us, by seeing the difference between what is right and what is wrong, every one of us can make a difference by doing something. And if enough of us do something, we can achieve everything.

 

 

 

 

Climate change

I gave a speech for 350.org.au just recently.  Here is the substance of what I said.

And before you read it (because it’s a bit depressing) cheer yourself up with First Dog on The Moon’s recent excoriation of our “Leader” Malcolm Turnbull on the subject of climate change.  It is interesting that we still think of Malcolm as the country’s “Leader”.  If anyone is taking us for this latest ride it’s Cory Bernardi or Peter Dutton or Eric Abetz or the collective gang of science-deniers in the LNP party room.

——–

I have long considered climate change the principal issue facing the world.  It is a first-order issue.  Refugees are a second-order issue.  Here is the speech I gave:

Climate change is the single biggest issue facing the world today.

Perhaps the biggest issue that has ever faced the planet.

Climate change resists simple solutions. To begin tackling it, we must first begin undoing the complex web of of factors that have existed for centuries and have brought us to this point.

These include:

  • Global structures that have been based on fossil fuels and the exploitation of cheap energy and labour for centuries
  • The inequalities and power dynamics that are the legacy of colonisation
  • Giant corporations that have more power now than ever before in history and will do anything to protect their profits: The East India Company once ran India: global corporations today make the power of the East India Company look modest.
  • And a new global economic system that has eroded the power of nation states to set and effectively enforce policy.

This complex web of factors makes it more difficult to solve the climate change issue: more interests are involved than, for example, in banning the use of CFCs in order to reduce the hole in the ozone layer.

For many people climate change is a relatively new issue. It was brought into public focus in the 1997 Kyoto Protocol. It was reiterated by Kevin Rudd, who in 2007 called it the ‘greatest moral challenge of our time’.  And he went to Copenhagen in 2009 but somehow he lost his way after that.

But scientists have known for a long time that climate change was happening.

In the 1820s, the French mathematician Jean Baptiste Joseph Fourier was trying to understand the various factors that affect Earth’s temperature. But he found a problem – according to his calculations, the Earth should have been a ball of ice.

The Sun did not seem to provide enough energy to raise the temperature of Earth above freezing. Fourier’s initial ideas, that there must be additional energy coming from the Earth’s core or from the temperature of outer space, were soon dismissed. Fourier then realised that the atmosphere, which at first seemed transparent, could be playing a crucial role.

In 1861, the Irish physicist John Tyndall demonstrated that gases such as methane and carbon dioxide absorbed infrared radiation, and could trap heat within the atmosphere. He recognised the implications and said that these gases “would produce great effects on the terrestrial rays and produce corresponding changes of climate.”

He was right.  But in 1861 the amount of CO2 which was being released into the atmosphere was a tiny fraction of what happens today.  Although CO2 levels started to rise with the industrial revolution, when Tyndall drew attention to the subject, the CO2 concentration in the atmosphere was less than 300 ppm.  It now peaks at something like 410 ppm.

In the 1890s the Swedish scientist Svante Arrhenius identified the warming influence of water vapour in the atmosphere.  This was the first indication of a positive feedback loop: more CO2 meant a warmer atmosphere; a warmer atmosphere can hold more water as vapour; more water vapour in the atmosphere traps more heat, and so on.

In the 1950s the Canadian physicist Gilbert Plass confirmed that doubling the level of  CO2 in the atmosphere would lead to an increase in global temperatures of 3-4 decrees Celcius.

In the 1970s, Exxon knew that burning fossil fuels was warming the planet. This was years before it became a public issue.   Exxon understood what this would mean for its business, and has since spent an estimated $30 million promoting the denial of climate change and questioning the science.  Gosh: that’s how the tobacco industry defended itself: deny the science, create doubt, attack your opponents.

22 years ago the first UN Climate Change conference was held in Berlin.  World leaders came together to work out what to do about climate change. In 1995 there was about 358 ppm of CO2 in the air.

Now, 22 years later when the first global climate agreement is finally in place, the figure is more than 400 ppm.

That has locked the planet into 1 degree of warming even if we stop burning all fossil fuels right now.

Burning fossil fuels such as coal, petroleum, and natural gas is the leading cause of increased anthropogenic CO2; deforestation is the second major cause.

The rate of increase in the release of CO2 into the atmosphere is startling:

In the 150 years from 1751 to 1900, about 12 gigatonnes of CO2 were released from fossil fuels and cement production worldwide.

In the 112 years from 1901 to 2013 the figure was about 1,400 Gigatonnes: an average of about 12 gigatonnes of CO2  per year, but the rate has been accelerating:

In 1990: 22.5 gigatonnes of CO2

In 2010, 33.5 gigatonnes of CO2

Half of the greenhouse gas emissions in our atmosphere were released after 1988. If fossil fuel companies were honest about the damage fossil fuels cause, we wouldn’t be in the situation where we have a 5 year window in which to avoid the worst impacts of climate change.

But, thanks to the work of Exxon and other fossil fuel companies who put their own profits above the future of the planet, we’ve suffered through 21 years of policy inaction. Even worse, their climate denialism has muddied the water so much that people now believe climate change is a conspiracy dreamed up by the Chinese or a corrupt UN that wants to take over the world meaning that effective national policies that will have the least cost impact are often difficult or impossible to achieve.

In democracies, these tactics poses a very real threat. At a time when entire nations are at risk of sinking below the seas, Donald Trump has committed to pull the US out of the Paris Agreement because quote: The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive. Here in Australia, we are no better! The Australian Government continues to block any real action on climate change and our former Prime Minister claimed that ‘coal is good for humanity’ and our current Prime Minister seems largely beholden to the far right’s agenda on the issue: more coal and gas and no national strategy to reduce emissions or plan for a transition from fossil fuels.

This is compounded by the fact that developed countries like Australia, the UK and the US – whose centuries of reliance on coal, oil and gas have caused this climate crisis – are increasingly turning into national fortresses, leaving the most vulnerable to a changing climate stranded, quite literally, at sea.

Australia

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

A report in the Guardian Australia on 30 November illustrates the problem.  An expert advisory panel reported that Coal-fired Queensland, with just 7% of its power generation from renewables, could lift that to 50% by 2030 with little appreciable cost to electricity consumers.  The Queensland government would subsidise renewables.  The federal energy minister, Josh Frydenberg criticised the report.  The Guardian article continues:

Coal companies like Rio Tinto have called on Queensland to abandon its own renewables target to simply align with the commonwealth’s 2020 goal of 20%. But Bailey says it’s clear the state’s plan was “developed in the absence of federal policy” and with doubt that even the 2020 commonwealth target will be achieved.

He says the failure of the prime minister, Malcolm Turnbull, to put policy daylight between him and his predecessor, Tony Abbott, shows conservative politics in Australia will be dragged kicking and screaming towards energy sector reform.

Antipathy towards renewables and acting on climate change among the hard right of the Coalition stands in contrast to moves by “conservative parties in other parts of the world”, Bailey says. He cites Germany and California as advanced economies already boasting more than 30% renewable power.

“You go to Europe, this is not an issue,” he says. “It seems to be a particular LNP [Liberal National party] Australian thing but they seem extraordinarily intransigent on it and, while we see more and more extreme weather events occur, they are stopping us from dealing with some of those big issues around climate change. …”

We are a uniquely embarrassing case on the global stage, in that early on, we put in place a fairly comprehensive domestic climate policy with a carbon price by the minority Gillard Government that was then dismantled and replaced with an impotent measure that pays polluters and has seen our emissions rise every year since.

Watching Malcolm Turnbull fade into the shadow of what he could have been is like watching the slow destruction of a man the country once respected on so many of our most important issues. He has been so unwilling to lead his party, and has granted so much power to the fringe right of his party – particularly on the issue of climate change and asylum seekers – that Australia’s global reputation on climate change has gone from global leader to global threat.

As a case in point, here is a short but non exhaustive list of what the Government has done since the world signed the Paris Agreement a year ago:

  • Fast-tracked the Adani coal mine in Queensland – one of the biggest coal basins in the world that if developed would blow any chance the world has of remaining below 2 degrees of global warming. This is more than just a climate fight. It is also a fight over land rights and how the government has granted mining leases on indigenous land and repeatedly refuses to acknowledge the claim by the traditional Wangan and Jagalingou owners on this land.
  • Attacked environmental groups standing up for our climate and to protect our natural environment. The Turnbull Government has launched a two pronged attack on environment groups – the first attack is by seeking to amend the Environmental Protection and Biodiversity Conservation Act — or the EPBC. This act allows groups and individuals to legally challenge resource projects if they are a threat to water or the environment. This is an incredibly important provision – introduced by the Howard Government – that allows for a check and balance on Government’s power. The second attack is on the tax deductible status of environmental not-for-profits. This is an attempt to silence groups like 350.org and others who are standing up against fossil fuel projects.
  • Recently, investigative reporting discovered that the government censored a UN report on the extent of bleaching in the Great Barrier Reef and how much of a role climate change had to play in it. Even though the health of the reef recently got a “D” on the Australian government’s annual report card for the fifth year in a row and large-scale bleaching in the northern part of the reef threatens to see it never return to a productive state.
  • The Government has launched an ideological war on renewable energy after the recent South Australian blackout. This culminated in Energy Minister Josh Frydenberg attempting to bully the states out of their ambitious renewable energy targets and pushing them instead to focus on promulgating onshore gas production. As you, probably know, gas is in fact a non-renewable fossil fuel that releases methane into the atmosphere that is 86x more potent than carbon at warming the planet.
  • And then there was Tony Abbott’s asking the mining industry to “demonstrate its gratitude” to the retiring Federal Resources Minister – Ian MacFarlane – who dismantled the mining tax. The Industry duly listened, and MacFarlane broke a Parliamentary code of ethics by accepting a $500k per year job with the Queensland Resources Council — on top of his $140k Parliamentary pension — so that he can spruik for the Adani Carmichael coal mine in Queensland.
  • The Australian government actively resisted and watered down restrictions on financing of coal plants by OECD export credit agencies last year because the government wants more coal plants to be built so that there are new markets for Australian coal.
  • The Government has slashed the budget of ARENA — Australian Renewable Energy Agency — by $500 million– after trying to kill it off entirely. ARENA provides grants to innovative new renewables projects and is essential to keeping Australia at the forefront of research and development. If Turnbull was serious about ‘innovation’, ARENA would be the flagship organisation of this push. Instead, the Government created and funnelled money into a new major national fossil fuel research program called the Oil, Gas & Energy Resources Growth centre. You couldn’t dream this stuff up!

Australia’s political donation laws are outdated and not up to the task, so it is hard to get a clear view of how much is actually donated. But in the three years leading up to the 2016 election the fossil fuel industry donated almost $3.7 million to the major parties in direct donations.

In return the industry saw $7.7 billion in subsidies comes its way, priority access to any land they desired to develop and unbeatable access to the ears of our decision makers, including some of the most plum and influential roles in the country on retirement.

Indirect donations and the revolving door of jobs — such as that of the former Minister Macfarlane — would show significantly more influence.

Brad Burke, the former Corporate Affairs Director of Santos, is now Malcolm Turnbull’s senior strategist.

Senator James McGrath is now a QLD Liberal Senator.

Patrick Gibbons was the corporate affairs manager of mining company Alcoa was Greg Hunt’s senior adviser as Environment Minister.

Josh Frydenberg’s current adviser previously worked for Shell and then Energy Australia.

That our Government is awash with former fossil fuel executives goes a long way to explaining why we are currently a global embarrassment on climate change. And as to why we are not addressing our biggest contribution to climate change: that Australia remains the world’s biggest coal exporter.

To use a crude analogy: if fossil fuels are the drug, then Australia is the pusher.

This is a nice little arrangement between the fossil fuel industry and our Government. By exporting our coal, we are exporting our emissions to other countries that we are not required to take responsibility for under our UN climate commitments. Just Australia’s domestic emissions equate to 1.5% of the world’s carbon emissions – 16th in the world.

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

Even worse is that if the above mentioned the proposed Adani coal mine and development of the Galilee Basin supported by the QLD and Federal Governments, we would be responsible for 705 million tonnes of CO2 per year. Opening up the entire Galilee Basin would see Australia become the world’s seventh largest contributor of emissions in the world!

This is at a time when reports are telling us that if there is any chance of avoiding the ‘safe’ 2 degree warming scenario that NO NEW FOSSIL FUEL PROJECTS can go ahead, and that current ones need to be scaled back.

Fundamentally, we have to do better.

Globally Australia is under extreme pressure to lift its game on climate. At the recent UN climate meeting in Marrakesh, we got more questions than any other country. Including questions from allies like the US and NZ. And from countries like China that want to know why we have no credible climate policy and what we are going to do about it.

BUT, the Turnbull Government, like the Abbott Government, is impervious to international pressure.

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

We need to emphasise that by refusing to act we are missing out on the new jobs that the transition to clean energy is creating. China, Europe and the US are investing billions into this burgeoning industry, while Australia is cutting its funding to that same source of new jobs.

We need to emphasise that global warming is real, and if we let it run away from us we are mortgaging the future of our children and grandchildren.  The Federal Treasurer emphasises that we must avoid creating inter-generational debt.  He says this in connection with the Federal budget.  He needs to speak to Josh Frydenberg: climate change is the biggest inter-generational debt imaginable.

We need to emphasise that climate change provides the biggest existential threat to our neighbouring Pacific Islands and across Asia. At least five reef islands in the remote Solomon Islands have been lost completely to sea-level rise. The rapid changes in the Solomon Islands has already seen whole coastal communities have to relocated. These are communities that have in many cases lived in these areas for generations.

Historically, Australia has been looked to as a leader in the Pacific region. Our recent approach to climate policy has severely weakened this view. Responding to the scrapping of the carbon tax and the defunding of climate science research bodies, the Marshall Islands Foreign Minister Tony de Brum said this:

“It just does not make sense, it goes against the grain of the world.

Not only [is Australia] our big brother down south, Australia is a member of the Pacific Islands Forum and Australia is a Pacific island, a big island, but a Pacific island. It must recognise that it has a responsibility.

The problems that have befallen the smaller countries are also Australia’s problems. You cannot remove Australia from the life and blood of the Pacific.”

For our conservative politicians climate change is a ‘wedge’ issue they can use against the Labor Party and the Greens to prove to their fringe right constituencies and their cheerleaders in the Murdoch press that they have the right mettle for the job.

We need to emphasise that climate change provides the biggest existential threat to the identity of Australia itself.  What sort of country are we?  Are we really a country that would do nothing to save the planet?  Are we a country willing to destroy our region and mortgage the lives of future generations so we can continue to live prosperous, self-indulgent lives.

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

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

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

In my opinion we have to make sure it never gets to this. We cannot trust the lives of millions of people to the whims of inward-looking fortress nation states.

That is why the current moment in history is critical. Until recently, the fossil fuel industry had a firm grip on the levers of power. They have been able to manipulate governments around the world to ensure that they could continue to drill, dig and frack for oil, coal and gas. But the world is rapidly changing.

A powerful global movement against fossil fuels is building. It is helped by the internet and a determination to build a better world.  It includes local communities, first nations people, university students, farmers, politicians, business leaders, even politicians.

This movement is forcing a reckoning on the future of fossil fuels. It was behind the success of the Paris Agreement last year. It is why BP walked away from drilling for oil in the Great Australian Bight. It was the cause of the ban on unconventional gas in Victoria. It is behind the states and communities announcing ambitious renewable energy targets despite every Federal Government effort to undo these targets.

The potential is huge. But its power rests with you.

Yes, 2016 has been a bad year for progressive causes and particularly for climate change at a time when we can least afford it.

But politics is like a pendulum and we need to be ready for when it swings back. Donald Trump will stumble. In Australia, the Turnbull Government has already lost the faith of the people just five months after the Federal election.

But, as Shakespeare said, When they fall, they fall like Lucifer – never to hope again.

They will resist.

We need to be resolute.

We need to be strong.

We need to be ready.

We need a robust and diverse movement of Australians ready to prove to our politicians that climate change matters. The movement against fossil fuels doesn’t have money or vested interests on our side. But we have the science, the evidence of the impacts already happening, and the liveability of our planet, our very future, as our authority.

Now we need to use it.

 

Renate Kamener Oration 2016

Renate Kamener Oration 2016

Is Islamophobia the new anti-Semitism?

Julian Burnside

Introduction

It is a fine thing for a family to remember a loved one with an annual speech.    To remember your loved mother each year by a public act of remembering is a truly wonderful thing. In The Tempest, Prospero says: “We are such stuff as dreams are made on; and our little life is rounded with a sleep´. If Shakespeare was right, this annual oration means that the sleep is not dreamless.

The Rabbi who celebrated her life at the Cremation on Friday 13 March 2009 said of Renate Kamener:

We are gathered to show our great love, admiration and appreciation of a remarkable and special woman – Renate Kamener – adored daughter, loving wife and life-partner, wonderful mother, supportive sister-in-law, welcoming mother in law, generous and giving colleague and trusted and valued friend.  …

Incidentally, the Rabbi was close to an hour late for the service, because he got the time wrong.  Renate was known by all of her friends and family for her appalling lack of punctuality, and a member of the family commented “even in death she keeps us waiting!”

In his 2011 Renate Kamener Oration, Gareth Evans said this:

Renate Kamener was a remarkable woman, and I feel honoured and privileged to have been invited by her family to give this second Oration in her memory. I was first introduced to Renate and Bob, more decades ago than any us would now care to remember, by my then Melbourne University Law School colleague, and their fellow refugee from the South African apartheid regime, Julian Phillips, and it was in that context that I first became aware of the risks they had taken in opposing that regime, and of their passionate commitment against racism in any form and for human dignity and decency in every form.

He spoke movingly of Renate Kamener’s intense commitment to Israeli-Palestinian reconciliation, and of what he referred to as “a life of great and recognized service to humanity”.

Renate was born on 8th June, 1933, in Breslau, Germany.  As the Rabbi pointed out, “the mention of Germany in 1933 will immediately ring alarm bells for many of you as the year that Hitler became chancellor and began to put into practice his anti-Jewish rhetoric…”

Anti-Semitism

Anti-Semitism has a long history, but notoriously reached an appalling peak in Germany between 1933 and 1945.

Gareth Evans touched on this in his 2011 Oration.  He said:

As no-one here this evening needs reminding, least of all the Kamener family, who like so many others of you have contributed so much to the Australian community since you or your forebears fled the horrors in Europe of the 1930s and 40s, no crime in history has been more grotesque than the Nazi Holocaust, with its comprehensively and meticulously organized extermination of six million Jews.   Even if some other mass atrocity crimes, those of Stalin and Mao for a start, have involved even more unbelievably large numbers, none has more fundamentally demeaned our sense of common humanity.

I do not intend to rehearse the miserable history of anti-Semitism.  Its traces go back a very long way.  It is often overlooked that the document signed by King John at Runnymede on 15 June 1215 and later called Magna Carta contained several provisions which can only be understood as an expression of anti-Semitism.  Shakespeare’s plays reflect enduring anti-Semitism in Britain, and the trial of Alfred Dreyfus in 1894 was an expression of deep-seated anti-Semitism in France.  Incidentally, it is not widely remembered that the Vichy regime deported Alfred Dreyfus’ granddaughter Madeline.  She was gassed at Auschwitz in 1944.

Boat people

As most of you are aware, I have been greatly concerned about Australia’s mistreatment of refugees in recent years.  I know many of you have also been concerned, and perhaps for the same reasons.

The origins of that mistreatment can be traced back to the Tampa episode in 2001.  The MV Tampa went to the help of a small refugee boat, the Palapa.  Most of the people on the Palapa were terrified Hazaras from Afghanistan, fleeing the Taliban.  It is often overlooked that Hazaras from Afghanistan now and Rohingyas from Myanmar now are as likely to be genuine refugees as Jews from Germany in 1939.

The captain of the Tampa rescued the people from the Palapa them to Christmas Island: a speck of Australian sovereignty in the Indian Ocean.  Those 434 Hazaras escaped the Taliban, a regime so harsh that we saw fit to help the Americans blast it back to the Stone Age just a couple of months later.  But they marked the start of a campaign which, in recent years has become a policy of deterrence: a policy designed to make people think persecution at home is better than mistreatment by Australia.

When the Tampa entered Australian territorial waters off Christmas Island, John Howard called in the SAS, who took command of the bridge of the Tampa at gunpoint.

Then there was a stand-off.  The rescued Afghans were stuck, sweltering on the steel deck of the Tampa in the tropical sun.  The matter went to Court.  The case ran four or five days.  Judgment was reserved.  Then the judge delivered a decision: at 2.15 in the afternoon, Melbourne time, on 11 September 2001.  Ten hours later the attack on America took place.

It is a nice coincidence that this event in honour of Renate Kamener is being held 15 years, to the day, after the judgment in the Tampa litigation; on the 15th anniversary of the events which, more than anything else, triggered Islamophobia

The start of Islamophobia

After September 11, 2001, in public and political discourse, there were no longer terrorists, just Muslim terrorists; no boat people, just Muslim boat people.  And John Howard started calling boat people “illegal”.

The notion that 434 frightened, persecuted men, women and children constitute a threat to national sovereignty is so bizarre that it defies discussion.

The Coalition have persisted in calling boat people “illegal” ever since.  It is a lie.  When Abbott won government in 2013, “border control” became “border protection”.  It was not easy to watch an interview with Scott Morrison, when he was Immigration Minister, without hearing him talk about “illegals” and “border protection”.  (It was not easy to watch his interviews at all, disfigured as they were by his easy personal brand of hypocrisy and dishonesty). It is a matter of history that the Abbott government, whose leading figures were conspicuously Christian, were so dedicated to vilifying refugees, that they renamed the Department of Immigration and Citizenship: it is now the Department of Immigration and Border Protection.

But boat people do not threaten our borders in any sense, and we do not need to be protected from them.  But government propaganda, never contradicted decisively by the Labor party, has persuaded a significant percentage of the Australian public that we are being protected from dangerous criminals.

Most people, even the most empathetic, would not resist the idea that criminals should be sent to jail.  And if boat people are “illegal” then placing them in detention seems natural and reasonable.  It does not evoke a reaction of empathy.

The matter is different once you recognize that the people held in detention centres are not guilty of any offence.  It looks different when you see that boat people are held in detention for an indefinite time – for as long as it takes to resolve their claim for protection.  They may be jailed for months or years or perhaps even forever.  No-one can tell them in advance how long they will stay in detention.

What we do to boat people

When boat people arrive at Christmas Island, they have typically spent eight or 10 days on a rickety boat.  They have typically come from landlocked countries and have typically never spent time on the ocean.  Typically, they have had not enough to eat and not enough to drink.  Typically, they have had no opportunity to wash or to change their clothes.  Typically, they arrive distressed, frightened and wearing clothes caked in their own excrement.

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

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

If they have any medical documentation with them, it is confiscated and not returned.  The result of all of this is that people with chronic health problems find themselves denied any effective treatment.  The results can be very distressing.  For example:  a doctor who worked on Christmas Island told me of a woman who had been detained there for some weeks and who was generally regarded as psychotic.  Her behaviour was highly erratic for reasons that no-one understood.  The consultation with this woman was very difficult because, although the doctor and the patient were sitting across a table from each other, they did not have a language in common.  The interpreter joined them by telephone from Sydney: about 5,300 kilometres away.  Eventually, the doctor worked out that the problem was that the woman was incontinent of urine.  She could not leave her cabin without urine running down her leg.  It was driving her mad.  When the doctor worked out that this was the cause of the problem, she asked the Department to provide incontinence pads.  The Department’s initial response was “we don’t do those”.  The doctor insisted.  The Department relented and provided four incontinence pads per day:  not enough, so that the woman needs to queue for more but the incontinence pads made a profound difference to her mood and behaviour.

In February 2014 Reza Barati was killed on Manus Island.  Initially, Australia said that he had escaped from the detention centre and was killed outside the detention centre.  Soon it became clear that he was killed inside the detention centre.  It took nearly five months before anyone was charged with the murder of Reza Barati.  Nobody has yet been brought to court.

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

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

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

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

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

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

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

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

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

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

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

In 2015 I got an email from a health worker on Manus:

“…The situation as you can imagine is very grim. Around 80% of transferees suffering serious mental health issues. PNG staff are slowly being “trained” to take over various roles with mostly undesirable results. East Lorengau is not working. One refugee is lingering in hospital for over two weeks with undiagnosed stomach problems. One refugee doctor is suffering severe mental health issues….”

Here is an extract from a statement by a doctor who worked on Manus who has spent most of his  professional life working in the prison system in Australia:

“…On the whole, the conditions of detention at the Manus Island OPC are extremely poor. When I first arrived at the Manus Island OPC I was considerably distressed at what I saw, and I recall thinking that this must be similar to a concentration camp.

The detainees at the Manus Island OPC are detained behind razor wire fences, in conditions below the standard of Australian maximum-security prison.

My professional opinion is that the minimum medical requirements of the detained population were not being met. I have no reason to believe that the conditions of detention have improved since I ceased employment at the Manus Island OPC.

The conditions of detention at the Manus Island OPC appeared to be calculated to break the spirit of those detained in the Manus Island OPC. On a number of occasions the extreme conditions of detention resulted in detainees abandoning their claims for asylum and returning to their country of origin.

At the Manus Island OPC, bathroom facilities are rarely cleaned. There was a lot of mould, poor ventilation, and the structural integrity of the facilities is concerning.

No soap is provided to detainees for personal hygiene.

When detainees need to use the bathroom, it is standard procedure that they first attend at the guards’ station to request toilet paper. Detainees would be required to give an indication of how many ‘squares’ they will need. The maximum allowed is six squares of toilet paper, which I considered demeaning.

A large number of detainees continue to be in need of urgent medical attention.

Formal requests for medical attention are available to the detainees. The forms are only available in English. Many of the detainees do not have a workable understanding of English and the guards will not provide assistance.  …”

The recent release of several thousand files from the detention centre on Nauru provided a useful insight into what is happening  there.  The files revealed, among other things, something many of us have known all along: there have been hundreds of incidents of sexual assault, including child sexual assault.  The offences have been committed mostly by guards or by Nauruan locals.

But one document raised less concern than it should have.  It was a report that Save The Children had directed their staff that they should not spend longer than 5 weeks on Nauru at a time.   More than that would be a danger to their mental health.  We have held hundreds of men, women and children in detention on Nauru for more than three years.

But why?

So the question that needs to be asked is this: why has it been so easy to persuade the public that boat people are criminals who deserve to be locked away and mistreated so grotesquely that even children in detention harm themselves or kill themselves?

I fear that the true answer is Islamophobia.  Since 9/11 the Western world has been induced to believe that all boat people are Muslims and all Muslims are a threat to our way of life, our very existence.

The idea of people coming to Australia, without papers, without an invitation, causes astonishing anxiety.  It is generally overlooked that they come here looking for a place where they can live in safety.  Perhaps our reaction is a dim echo of 1788, when the arrival of uninvited boat people led to the rapid – and brutal – extinction of the existing culture.  But most Australians miss that little irony.

It is often overlooked that John Howard’s response to the Tampa was explicitly political: he took the position he did in order to win back some previous Liberal supporters who had drifted across to Pauline Hanson’s One Nation party.  Little did he realise that, just 15 years later, there would not be much difference between the Liberal party and One Nation.

The LNP response to boat people has gone through three distinct phases.

“illegals”

From the time of the Tampa episode in 2001, refugees were disparaged as “illegals”, “queue-jumpers” and people who had thrown their “Children Overboard”.  Each of those tags is false.  I mention this because, apart from anything else, it shows that the party which calls itself “Liberal” is perfectly happy to lie to the public in order to pursue policy objectives.

It is a lie to call refugees “illegals”.  The word suggests plainly that the person has committed an offence.  But it is not an offence to come to Australia, without papers, without a visa, without an invitation, and ask for protection.

The rhetoric of “illegals”, coupled with renaming the Department “Immigration and Border Protection” has been used skilfully, but dishonestly, by Abbott and Morrison and Turnbull and Dutton to convey a key dog-whistle message: that boat people are criminals from whom we need to be protected.  It is the crucial lie which makes it possible for Australia to reward the party that promises the greater cruelty to asylum seekers.  It is worth remembering the miserable fact that the 2013 Federal election campaign was the first (and I hope the only) time in this country in which both major parties tried to win political support by promising cruelty to a specific group of human beings.  If they had promised cruelty to animals, it might not have worked so well.

Unless we are really a country of people who would willingly mistreat innocent human beings simply because they have come asking for protection from persecution: as often as not, fleeing the same extremism we are fighting in the Middle East.

This should not be mistaken as a partisan attack on the Coalition: the Labor party has been conspicuously silent on the subject.  Both in opposition and in government, Labor has ducked the opportunity to correct the public debate by telling the truth: that boat people are not illegal, that there is no queue.  It is a painful irony that Labor has failed to make the very simple point that Article 14 of the Universal Declaration of Human Rights gives every human being the right to seek asylum in any territory they can reach, and that Australia played a leading role in the creation of the UDHR, and that a Labor icon, Doc Evatt, presided over the General Assembly of the UN when the UDHR was entered into force.

But that was a time when Labor values were more than just a marketing campaign formulated by reference to populism, and completely untroubled by humanitarian considerations.

People smugglers

Next, the rhetoric swung to an attack on people smugglers.

Soon after Tony Abbott won the leadership of the coalition, he started criticising the Rudd government for the fact that boat people were arriving in Australia.  Rudd, who had introduced some well-designed reforms in July 2008, responded swiftly: he attacked the people smugglers.  In April 2009, Rudd said people smugglers were the “absolute scum of the earth” and should “rot in hell”.  He said that “People smugglers are engaged in the world’s most evil trade and they should all rot in jail…”

Rudd’s venom was a response to visible deaths of asylum seekers after an explosion sank a boat carrying asylum seekers off Australia’s north west coast.  It is possible that Rudd thought abusing asylum seekers was no longer a good look, but people smugglers were fair game.  He had overlooked that not all people smugglers can be conveniently fitted into the same miserable moral category.  He seems to have forgotten temporarily that his great moral hero, Dietrich Bonnhoeffer, was a people smuggler.  So too were Oskar Schindler and Gustav Schroeder.

Schindler’s activities are well-known, from Tom Keneally’s book and the film based on it.

It is worth recalling here what Schroeder did.  In May 1939, just months before the start of World War II, a ship called the St Louis left Hamburg, carrying 900 Jewish refugees.  Gustav Schroeder was its captain.  The St Louis was denied access to every port it approached, despite Schroeder’s efforts.  It got as far as Cuba, and was warned off the coast of Florida at gunpoint.  Schroeder took the St Louis back to Europe and put his cargo ashore in Antwerp.  After the low countries were occupied by the Nazis, more than half the refugees on the St Louis were captured and ultimately perished in concentration camps.

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

The ferocity of attacks on people smugglers increased when Australians watched, on television, the terrible wreck of an asylum seeker boat on 15 December  2010.  It was a shocking sight, and significantly increased the political impact of attacking people smugglers.

Of course it is tragic when asylum seekers die in a desperate attempt to reach protection.  It is also tragic when they stay behind and are slaughtered.  The key difference is that, when they stay behind and become another statistic in the grim arithmetic of ethnic cleansing, we do not empathise with them; our conscience remains untouched.  When we learn that they have perished in an attempt to seek safety here, it seems different.

Why is that? Is it because they have tried to engage us? Is it because the ethics of proximity has begun to operate, so that we feel a heightened sense of responsibility for them? Is it because, seeing their last moments on the TV news, we understand their agonies, although perhaps not the desperation which drove them?  Is it simply because, in the unhealthy environment of current domestic politics, their fate is automatically drawn to our attention by politicians trying to exploit the occasion for their own political advantage?

If you had been a Jew in Germany in 1939, would it have been better to chance your arm with a people smuggler (Schindler, Bonnhoeffer, Schroeder…) or stay put and face a different risk? And which is more tragic: to die passively or die in an attempt to escape? One thing is certain: if the Taliban get you, you are just as dead as if you drown.

Rudd was later replaced by Gillard.  She reintroduced the Pacific Solution.  Then Rudd replaced Gillard, and he cranked up the Pacific Solution to its harshest form ever, as part of a policy of deterrence.  The 2013 Federal election disfigured Australian politics: it was the first election in which both major parties tried to woo voters by promising cruelty to a group of human beings (boat people).  If they had promised cruelty to animals, it might have been received differently.  Between them, during the 2013 election, Rudd and Abbott trashed whatever was left of Australia’s reputation.

By small degrees, sections of the public began to realise that people smugglers were not necessarily quite as wicked as the politicians had made out.  The prosecution of Ali al Jenabi, so well retold in Robin de Crespigny’s book the People Smuggler, drew attention to the simple, central fact that people smugglers provide a service which some desperate people need.  The existence of people smugglers does not create a demand for them.  When you are running for your life, you will take whatever services are available.

Drownings

The graphic scenes of horror as a boat smashed to bits on the coast of Christmas Island gave the Gillard government a new line of attack: the drowning excuse.  While it may seem superficially persuasive that we would take steps to prevent people drowning, we need to examine why people risk their lives at sea, and ask whether our concern about drowning is the true reason for our actions: it looks different when you realise that, in our ostensible concern about boat people drowning, we punish them if they don’t drown.

The following facts are uncontroversial:

  • Boat-people come here principally from Afghanistan, where the Hazaras are the target of Taliban genocide, and from Sri Lanka, where the Tamils are being persecuted in the wake of their failed liberation movement, and Rohingyas from Myanmar.  Those three groups have dominated boat-people numbers in the last few years.
  • Hazaras, Rohingyas and Tamils are really desperate in their bid for freedom.  Apart from any other consideration, a person has to be desperate to take the risks they in fact take in their attempt to reach safety.
  • Most boat-people who arrive in Australia end up being assessed as genuine refugees, legally entitled to our protection: over 90% of them are ultimately successful in their asylum claims.  This compares with a success rate of about 40% among asylum claims of people who arrive here by air on short term visas, such as business, tourist or student visas.  The different success rates are readily explained: the boat trip is dangerous: it is a mark of sincerity that a person takes the risks it involves.
  • Some of the boats carrying asylum seekers sink, and some of the refugees drown.  The number who have drowned is not clear, but it looks like about 2-3 per cent of them since 2000.

A person facing death or torture is not likely to be deterred by the prospect of being locked up in a detention centre, or even by the risk of drowning.  Desperate people will take desperate measures.  The experience of the Jews in the 1930s and the Vietnamese in the late 1970s tells us that.  Common sense and ordinary experience tell us that.  Over the years I have asked Hazaras I know personally, and who came here as boat-people, whether they had been aware of the risks before setting out.  Some did.  I asked them why they took the risk: they said that the Taliban represented a greater risk.  Others did not: they did not know where they were being taken.  For that group, deterrence is not a relevant consideration.

It is also significant that, at present, asylum seekers who get to Indonesia face the real prospect of being mistreated and jailed by the Indonesian authorities if they are caught.  In addition, they are not permitted to work or to send their children to school.  I suspect that most Australians faced with the same problem would choose the same solution: take a risk and get on a boat.

One of the strangest phenomena in Australian politics over the past decade is that we are apparently willing to revile and mistreat people who act exactly as we would if we had the misfortune to be in their shoes.

Islamophobia

So, we have a number of false explanations for conduct which, I hope, does not reflect the genuine character of this country.

But what is the true explanation?

A leading politician once said this:

“…after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.”

The person who said those words was Hermann Goering.  It is hard to contradict that statement; it is hard not to see it at work right now across the Western world.  It is a matter of real concern that anti-Islamic views are apparently driven by our political masters.

A survey in 2015  took a nationally representative sample of 1000 adult Australians.  It found that almost 70 per cent of Australians have a very low level of Islamophobia, about 20 per cent are undecided and only 10 per cent are highly Islamophobic.  The survey found that women tend to be more worried about terrorism than men. Where a respondent lived did not have a significant impact. People were more worried about terrorism if they were older, had lower levels of education, were unemployed, were employed in a non- professional role or if they supported the Liberal or National parties. They were less likely to be worried about terrorism if they had regular contact with Muslims, felt tolerant of migrants or had lower Islamophobia scores.

The survey concluded that most Australians display low levels of Islamophobia, and are willing to have Muslims in their family or friendship group (although they are even more welcoming of members of other major religions). There are pockets of prejudice and anxiety directed towards Muslims, for example among the aged and those facing financial insecurity. But the great majority of Australians in all states and regions are comfortable to live alongside Australian Muslims.

Islamophobia, it seems, is being driven from the top and for political advantage.

I do not want to be misunderstood: I deplore Muslim extremism, Hindu extremism, Christian extremism: I deplore extremism and terrorism of all kinds.  But I would not readily assume that a person fleeing extremism is an extremist.  I would not readily assume that a person fleeing terrorism is a terrorist.

It is no accident that repelling people who are seeking a safe place to live is now framed as an aspect of National Security.

It is no accident that, since 9/11, women who wear a head-scarf in public feel unsafe.

It is no accident that the news emphasises Islamic terrorism, in a way which we did not see during the 20th century, when duelling Christian sects committed appalling acts of terrorism in Northern Ireland.

And I think it is no accident that, in recent years, a number of Australian Jews have expressed their concern at the mistreatment of asylum seekers: they seem to recognise that Islamophobia looks worryingly like anti-Semitism.

And all Jews know where that can lead.

OFFSHORE by Madeline Gleeson

On 9 May I launched OFFSHORE by Madeline Gleeson (NewSouth Publishing, 2016, paperback)

Madeline is a Research Associate at the wonderful Andrew & Renata Kaldor Centre for International Refugee Law

It is a terrific book.  Buy it; read it; ask yourself: “How did it come to this?”

Here is my speech at the launch.

I have launched quite a few books in my time.  I always read a book before launching it.  It can be a chore, at times.

I have never launched a book which is as compelling as Offshore.

I thought I knew a fair bit about the treatment of asylum seekers in Manus and Nauru.  But Offshore brings together so many compelling details, many of which I was unaware of, that I was torn: part of me could not put the book down; part of me could not cope with more and more searing detail of our cruelty to men, women and children who have had the courage to risk their lives on the ocean in a search for a safe place to live.

This book is meticulously documented: every assertion of fact is attributed to a verifiable source.  In fact, this must be the only book ever published which has nearly 100 pages of footnotes, but is genuinely compelling to read.

It covers Australia’s offshore detention regime since 2012.  What comes through is quite clear: Australia takes boat people and mistreats them in order to persuade others not to even think about seeking safety in Australia.  This is, ostensibly, to protect them from the evils of people smugglers, as if people smugglers were all morally  identical. If that were so, the worst imaginable people smuggler would be in the same moral basket as Dietrich Bonnhoeffer, Oskar Schindler and Gustav Schroeder.  (Gustav Schroeder was 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 book could be first on the indictment of Scott Morrison and Peter Dutton for crimes against humanity.

Although it only gets a brief mention in Madeline Gleeson’s book, it is interesting to recall that, in 2015, a suggestion emerged that Australian Border Force people had paid $30,000 to a people smuggler to turn back, and take his passengers back to Indonesia.  The story was picked up by the Opposition, but suddenly disappeared.  But it draws attention to Australia’s law which makes people smuggling an offence.  It has just 3 elements.  The person arranges or facilitates the entry by a person into a country, of which that person is not a national, without going through the ordinary passport controls.  Let’s see how that lines up against our much promoted “turn back” policy.  We turn suspected people smuggling boats back to Indonesia – if necessary, we put the passengers into special orange lifeboats.  So, we facilitate the entry of those people into Indonesia.  In fact, we make their entry into Indonesia a practical certainty, unless they drown on the way back.  Do we think they are Indonesian nationals?  Probably not.  Do we expect that they will go through ordinary passport controls? Probably not.

Australia has boasted about this activity, but it means that Scott Morrison directly authorised people smuggling, as that offence is defined in our law.

But Scott Morrison’s hypocrisy is clear to see elsewhere in the pages of Madeline Gleeson’s book.

He said Reza Berati had escaped from the detention centre at Manus and had been killed by locals. The fact was that Reza Berati was killed, inside the centre, by people paid by Australia to keep the detainees safe.

He said Hamid Khazaie had been medically evacuated to Australia and was receiving the best medical care.

He overlooked that Khazaie was already brain-dead because his evacuation had been so delayed and carelessly handled by the Immigration Department.

He sent children to Nauru against the clearest medical advice.

Under Morrison, detainees were the victims of sexual assault, but no charges were ever laid.

Self-harm and suicide attempts reached “epidemic” proportions.

Save the Children workers, desperate to do whatever they could to relieve the suffering of children in detention, were accused by Morrison of engaging in a “campaign to cast doubt on the government’s border protection policies”.  Months after Save the Children had been removed from Nauru, the Moss review found that the allegation was false. Just last week, it was revealed that we have agreed to pay secret compensation in an undisclosed amount.

And each Sunday Morrison went to Church to display his Christian virtues.

Peter Dutton was appointed Immigration Minister by Tony Abbott in early 2015.  His appointment was reaffirmed by Malcolm Turnbull.  He presided over the introduction of the Australian Border Force Act in 2015.  Among other things, the Border Force Act makes it a criminal offence for anyone who works in the detention system to disclose anything they learn in that capacity.  In ordinary civil society, if a doctor becomes aware of a case of child abuse, they commit an offence if they fail to report it.  Under the Border Force Act, if a doctor working in the  detention system becomes aware of a case of child abuse, they commit an offence if they report it.  In theory, they face the possibility of two years in jail if they report a case of child sex abuse in the detention system.  Madeline’s book reveals numerous cases of child sex abuse in the Nauru detention centre: she reveals them because doctors have had the courage to let their ethics transcend their personal interests.

No one has yet been prosecuted under section 42 of the Border Force Act, but its chilling effect is clear.

What Offshore makes clear is that Australia is brutalising anyone who risks their life to come to Australia to seek safety.  Given that Australia played an important role in the formulation of the Universal Declaration of Human Rights in the wake of the second World War, it is a sobering irony that we are now playing a leading role in degrading human rights, and we are doing it because of the dishonest rhetoric of politicians such as John Howard, Philip Ruddock, Kevin Rudd, Tony Abbott, Scott Morrison and Peter Dutton.

Last week, Stephen Charles QC, a former judge of the Victorian Court of Appeal, published an opinion piece in the Fairfax press.  In it, he observed:

“The camps in Manus Island and Nauru have long since ceased to be mere detention centres.  They are now concentration camps.“

That statement, which 10 years ago would have been dismissed as hysterical alarmism, is now uncontestable.  But it provoked no great concern.  As we slip down a dangerous moral slope, our politicians assure us it is all for our own protection.

Modern human rights discourse started immediately after the second world war.  When the Nazi concentration camps were opened, the world drew breath in horror seeing proof of what had happened.  Most civilized nations resolved that it should never happen again. The Universal Declaration of Human Rights was inspired by the horrors of the Holocaust. Most of the great human rights instruments came in the wake of the Universal Declaration.

But the tide turned on September 11, 2001, and I suspect that in many countries the idea of human rights is now seen very differently. People are more concerned with protecting themselves than with protecting grand ideals like human rights, probably because they think they’ll always be in the un-persecuted majority.

I have two fears – and I hope I’m wrong about them.

First, that in 50 years from now people might look back on the second half of the twentieth century as “the time when they thought about human rights”, like we look back to the first few decades of the twentieth century and say, oh, they used to talk about eugenics back then. Eugenics was the creation of Francis Galton in the late nineteenth century. It was taken seriously until Hitler gave eugenics a bad name.

In the late nineteenth century people used to talk about spiritualism. It was an area of thought that was taken seriously by many people, including seriously clever people.

You don’t hear about spiritualism or eugenics anymore. It’s not just that people don’t take them seriously as ideas anymore; people don’t think about them anymore. They are ideas which have been removed from the intellectual table.

It worries me that, in 20 or 30 or 40 years from now, people may no longer think about human rights.  It may just be seen as one of those historical curiosities that people used to think about.

My second fear is this: that Malcolm Turnbull will win the Federal election on 2 July, but with a reduced majority, and that he will be rolled in the party room…and Scott Morrison will become our Prime Minister.

As I say, I hope I am wrong about both these things

But if that is where we end up, Madeline Gleeson’s wonderful book will be an enduring reminder that human rights matter, and that right now, in Australia, our politicians are betraying the fundamental ideals of human rights.

And it will be a fitting epitaph to the political career of Scott Morrison.

Rebranding the nation

The Golden Rule

One of the few philosophical precepts which is practically universal is captured in the Christian teaching: Do unto others as you would have them do unto you. In its original Biblical expression it says: “Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.”.[1]

Described in the West as the Golden Rule, it is found in many religious and secular philosophies. It is found in Brahmanism: “This is the sum of Dharma [duty]: Do nothing to others which would cause you pain if done to you”.[2] In Buddhism:   “…a state that is not pleasing or delightful to me, how could I inflict that upon another?”.[3]  In Confucianism: “Do not do to others what you do not want them to do to you”.[4] In Islam: “None of you [truly] believes until he wishes for his brother what he wishes for himself”.[5] And in Taoism: “Regard your neighbor’s gain as your own gain, and your neighbor’s loss as your own loss”.[6]

The same principle has been advocated by secular philosophers, including Epictetus,[7] Plato,[8] Socrates,[9] Seneca[10] and Immanuel Kant.[11]

The foundation of the idea is reciprocity and, in this setting, reciprocity is an expression of enlightened self-interest. Little wonder then that the idea is widespread. At its least, it tempers our basest impulses; at its highest, it produces acts of extraordinary altruism.

But the principle of reciprocity, and the Golden Rule which springs from it, sits uncomfortably with selfishness, which is a near-universal human characteristic. Human infant are near-perfect parasites: their every instinct is directed at self-preservation. It is a necessary characteristic in creatures which remain dependent on others for a very long time, unlike the infants of other species.

So: self-interest has been naturally selected because it helps us survive to adulthood. But as we grow up we learn that the way we behave now may have consequences later. We learn that it is often strategically wise to postpone or subordinate our immediate interests in favour of others.

The tension between these forces is everywhere to be seen and especially at times of stress. There are three areas in which I want to examine this tension: in relation to global warming; in relation to our treatment of boat people, and in relation to marginalized groups within our society.

Global Warming

The attempt of world leaders in 2009 to reach agreement at Copenhagen on dealing with the impact of climate change provided a useful illustration. The stakes at Copenhagen could scarcely have been higher. Depending on your view of the science, the leaders of all the world’s nations were deciding whether human existence on the planet would still be viable for the grandchildren of infants born today.  The same issues are still in play: right now in Paris.  Who knows what the result will be.

In the tension between selfishness and enlightened self-interest at Copenhagen, enlightenment did not get a good run. The problem, of course, is that enlightened self-interest is simply selfishness deferred or subordinated in the hope that greater rewards are to be had for ourselves by accommodating the reciprocal claims of others.   Our willingness to accommodate the interests of others dissolves quickly when circumstances cast doubt on whether we can collect on the promise. So as time runs out, developing nations see continued CO2 emissions as their last chance to catch up to the living standards of the developed world. And the developed nations look askance at China and India and complain that their total emissions exceed those of the West, even if the West’s per capita contribution tops the charts. Ultimately, selfish considerations triumph because no one is confident that they can collect what the principle of reciprocity promises. Where the circumstances suggest that the other side will not reciprocate your altruism, enlightened self-interest aligns with unalloyed selfishness.

Refugee Policy

Establishing a generally acceptable refugee policy faces the same tensions. It inevitably involves striking a balance between the same, mutually incompatible human sentiments: selfishness and enlightened self-interest. At its foundation, our willingness to help others in distress springs from the fear that we may ourselves be in like distress some day, and would wish to be treated kindly. Or else it springs from a sense of guilt that we have somehow permitted another to suffer in ways which conscience cannot justify. It is no accident that the Refugees Convention was the product of World War II and, especially, the horrors of the Nazi death camps when they were exposed to the World’s gaze in 1945. Although most people in most nations must have reckoned as slight their prospects of ever being refugees in like circumstances, the enormity of what had happened persuaded them that they should be charitable. Many countries, including Australia, had avoided doing anything to help Jewish refugees before the war. A combination of guilt and fellow-feeling persuaded the world community to do better in the future, or at least to promise to do so.

Having signed the Refugees Convention, Australia was in the happy position of being geographically remote from most of the places which have, typically, generated refugee flows. We created a modest off-shore resettlement programme, under which a fixed number of refugees would be identified in refugee camps overseas and would be offered resettlement in Australia. This had the dual benefits of instilling a sense of our own virtue and, incidentally, enabling us to select refugees in accordance with our current demographic needs and social inclinations.

But it was still, ultimately, about numbers. Clearly enough, after the War, Australia set out to increase the population. “Populate or perish” was the catch-cry. The objective was helped by migrants and refugees.

Of course, some refugees managed to arrive here apart from the resettlement programme, but in such small numbers as never to present any difficulty or, let it be noted, provide any great opportunity for political exploitation. We were, without having to say so, able to decide who came into Australia and the circumstances in which they came.

After the Vietnam war things changed. Large numbers of Indo-Chinese boat people headed this way and – unlike the position in previous wars – the point of displacement was not very far away. The Coalition government of Malcolm Fraser took a stand of clear principle: we had been involved in the Vietnam war; our involvement was part of the reason people were fleeing; we therefore had a moral responsibility to receive them. And we did, in substantial numbers. They arrived at a rate of about 25,000 a year, but they were absorbed into the community with relatively little fuss. Their children are now doctors and engineers and scientists; their cuisine is now an embedded part of our way of life.

Our response was very different during the Prime Ministership of John Howard, even though the arrival rate was much smaller. During the whole of John Howard’s time as Prime Minister, the total number of boat people who came to Australia was about 15,000: a smaller total in 11 years than came in the first four years of the Fraser government.

What the Howard years showed is that the public can quickly be inflamed to fear and hatred of refugees if that course commends itself to the government. There are three main approaches which will achieve this result: emphasize their ‘otherness’; call them criminals; and create the spectre that they are coming in large numbers. The Howard government used each of these devices. Each of them affects the balance between selfishness and enlightened self-interest. If they seem to be very different from us, we will have more trouble getting used to them; if they are criminals, we need to be protected from them; if they come in large numbers we will not be able to cope. With attitudes like these, enlightened self-interest suggests that we should discourage or repel them. What good can come of it? And of course if they are ‘illegals’ then they simply do not deserve our charity. [Please note: boat people are not “illegal”.  It is not an offence to arrive in Australia without papers and seek protection from persecution.  Would someone please tell the tabloid journalists this simple fact.  And then tell the politicians.]

The Rudd government also came under pressure about refugee policy. Rudd’s first Immigration Minister, Senator Chris Evans, abolished the shameful Temporary Protection Visas and announced a new philosophy of immigration detention. A key element of this was that immigration detention should be for as short a time as reasonably possible, and children should not be in detention at all, except as a last resort. This did not cause any grief when it was announced in July 2008, perhaps because very few asylum seekers were arriving on our shores. (Australians are capable of great generosity, especially if it is not called on).

But by the start of 2009, things had begun changing. Afghanistan had convulsed again, with the Taliban’s brutality causing a new wave of terrified Hazaras to flee. And in Sri Lanka the ill-fated attempt of the Tamil Tigers to establish their own homeland was finally crushed. Refugee boats began arriving regularly. By the end of 2009, about 2,800 boat people had come to Australia, most of them being taken to Christmas Island for processing. Newspaper headlines emphasized the number of arrivals, and the Federal Opposition, led by Tony Abbott, began taunting the government with the suggestion that refugees were arriving in Australia as a result of the Rudd government’s “soft line on border protection”. It seems that Christmas Island was used as a place of detention and processing for political and strategic reasons. But Christmas Island is tiny, and its detention capabilities were eventually overstretched, creating an artificial crisis of sorts.

The public reaction was not quite as it had been in 2001 when the Tampa rescued 438 Afghan asylum seekers from a sinking boat. But the Tampa episode happened just two weeks before September 11, and refugee policy elided with border control and swiftly morphed into border protection. Suddenly we needed to be protected from refugees. This time the reaction was simply a reaction to the numbers.

Under the leadership of Tony Abbott, the Opposition started talking up the numbers, creating a climate of panic in the tabloid media in which the numbers could be deployed to poison the public mood. The argument – sometimes explicit, sometimes just conveyed by impressions – was that we must not receive refugees in large numbers because we are a large, but dry, continent; we must conserve our precious resources, especially water; we cannot take all the world’s refugees, so we must adopt a firm stance: people smuggling is a ‘vile’ trade, and we must not be soft on people smugglers. If we are seen as a soft touch, we will be overrun.  It is worth noting that Kevin Rudd responded to Abbott’s fear-mongering by criticizing people-smugglers and (in his second reincarnation as PM) revived harsh treatment of boat people as a deterrent measure.

It is at this point that the tension between selfishness and enlightened self-interest is tested. Selfishness inclines us to keep this country to ourselves, and to share it only with people who can benefit us. Enlightened self-interest tells us that refugees, and migration generally, have benefitted Australia in countless ways and it tells us something more subtle about the idea of being true to your values. But concerns about climate change and environmental sustainability of finite resources are readily harnessed as a rational basis for resisting increased numbers of refugees. After all, it is argued, the carrying capacity of this fragile continent is finite and limited. Millions of refugees are on the move, and we cannot take them all. It sounds respectable and rational, especially as we consider the need to take into account the prospect of environmental refugees in the near future. But there are several answers to this which present, and future, governments will have to take into account.

First, the number of boat people getting to Australia at present is still tiny and is likely to remain so. Looking at global refugee flows misses the point that very few of them come here. If numbers are a concern, here are some to consider:

  • Australia’s population: 23 million
  • Number of visitors arriving in Australia each year (for tourism, business etc): ~ 4.5 million
  • Number of permanent new immigrants each year: ~185,000
  • Refugee/humanitarian quota per year: 13,500
  • Number of asylum seekers who come to Australia by air each year: ~5,000 (it varies)
  • Number of asylum seekers who came to Australia by boat in 2009: approx 2,800 (equivalent to 5 days’ migration intake)

It is hard to understand why anyone can be much troubled by an unauthorised arrival rate of 2,800 per year. Or 8,000 or 28,000. In the abstract, it makes sense to be concerned about the number of unauthorised arrivals each year: but as a matter of practicality, there can be no rational basis for concern unless the numbers are demographically relevant which, in Australia, they clearly are not. The Australian situation is very different from that in other countries: some Asian and African countries receive millions of unauthorised arrivals each year; Europe receives hundreds of thousands of unauthorised arrivals each year.

We have never had that problem in Australia, nor are we likely to. The arrival rate of asylum seekers in Australia is never likely to be very great, largely because the voyage is difficult and dangerous. Our geography insulates us, as our history demonstrates.

The largest number of boat people to arrive in Australia in any one year was just on 25,000. That was in 2012. Before and since, the numbers were much smaller. But even 25,000 people arriving in one year is not a large number, when considered in context.

Australia’s treatment of boat people came in for intense criticism by more than 100 countries at Geneva in November 2015.  Because of the large number of countries who wanted to comment on Australia, each nation had only 65 seconds in which to comment on Australia’s human rights regime.  It should be a source of major embarassment to us, but went largely unnoticed.

An Alternative Approach

If I could re-design the system, it would look something like this. Boat-arrivals would be detained initially for a maximum of one month, for preliminary health and security checks. That detention would be subject to extension but only if a court was persuaded that a particular individual should be detained longer.

After that period of initial detention, boat arrivals would be released into the community on an interim visa with a number of conditions that would apply until the person’s refugee status was decided:

  • they would be required to report regularly to a Centrelink office or a post office, to make sure they remained available for the balance of their visa processing;
  • they would be allowed to work;
  • they would be entitled to Centrelink and Medicare benefits;
  • they would be required to live in a specified rural town or regional city.

A system like this would have a number of benefits. First, it would avoid the harm presently inflicted on refugees held in detention. Prolonged detention with an unknown release date is highly toxic: experience over the past 15 years provides plenty of evidence of this.

Second, any government benefits paid to refugees would be spent on accommodation, food and clothing in country towns. There are plenty of towns in country areas which would welcome an increase in their population and a boost to their local economy. According to the National Farmers Federation, there are about 90,000 unfilled jobs in rural areas in Australia. It is likely that adult male asylum seekers would look for work, and would find it.

But let’s look at some hypotheticals. Let us suppose that the unprecedented spike in arrivals seen in 2012 becomes the new normal: so, we will expect about 25,000 boat people to arrive here each year. And let’s suppose all of them stay on full Centrelink benefits for the whole time it takes to decide their refugee status.

If these very unlikely possibilities come about, it would cost the Federal Government about $500 million a year, all of which would go into the economy of country towns. By contrast, the current system costs about $5 billion a year. That’s an unimaginably large amount of money.  If you need another measure, each year our detention system costs about one million Geelong Chopper Rides.  By adopting this alternative approach, we will not only stop causing great harm, we will save about $4.5 billion a year, and we would be doing good rather than harm.

The Need to Deal with These Problems

It is vital for the future of Australia that we understand these matters clearly, because there is another predictable source of quasi-refugees in the foreseeable future: people from Pacific Island nations which become uninhabitable because of climate change. Global warming is a fact. Only contrarians and the lunatic fringe are putting up any real opposition to the idea that the IPCC reports are accurate, but possibly conservative.

Whether or not we manage to co-operate globally to reduce greenhouse gas emissions, the polar ice-caps are melting, glaciers are retreating, and the Greenland Ice Shelf is at serious risk. Apart from regional effects on arable land and the consequent effects on world food supplies, population in low-lying areas will be profoundly affected by rising sea levels.

A sea level rise of one to two metres, coupled with the effect of tidal surges and storms, will displace tens of millions of people around the world. Displaced populations in the coastal areas of continents and large islands will likely move inland. Depending on the continued viability of coastal cities, the movement is likely to be slow – it will likely happen over a number of decades. Abnormal weather events, like Hurricane Katrina, may cause sudden displacement of large populations, although they will probably not be permanent displacements.

Pacific islands present a different challenge. Many of them already have fragile economies. Many of them are low-lying. As a matter of certainty, a number of them will disappear or become unlivable if sea levels rise between one and two metres. Their inhabitants will look to Papua New Guinea, Indonesia and (especially) Australia.

Although we think of them in prospect as ‘environmental refugees’, this is not accurate as a matter of law. A refugee is a person who meets the criterion in the Refugees Convention of 1951, that is: a person who, being outside his or her country, is unable or unwilling to return to it because of a well-founded fear of persecution on grounds of race, religion, nationality, politics etc.

Environmental refugees may be unwilling to return – and if their country has disappeared, they certainly will be unable to return – but not for fear of persecution. They are not refugees within the Convention definition. But we refer to them as refugees because of the obvious analogy between their position and that of other refugees.

Environmental refugees may turn out to be the greatest challenge facing Australia in the domain of refugee policy during the next generation. What will we do to prepare ourselves to meet the challenge? And what is the right response to the challenge? For reasons set out later, I do not think the demographic challenge associated with environmental refugees is terribly difficult. What may be more difficult is the ethical challenge.   Put simply, will we turn them away and let them drown? Or will we receive them and treat them humanely?

The Copenhagen Conference ended in failure. What was seen by many as an opportunity for the human race to respond in a united way to a global threat which has no equivalent in recorded history has generated no agreement, no united front: it was dominated by national selfishness. There seemed to be general agreement that the problem is important and real, but the response brings to mind the unhappy image of a philosophical debate between the pilot and the navigator as the 747 heads spectacularly towards a mountain. The seriousness of the matter was well expressed by Christina Ora from the Solomon Islands. She published in The Age newspaper an account of the speech she gave at Copenhagen. She said:

“I am 17 years old. For my entire life, countries have been negotiating a climate agreement. My future is in front of me. In the year that I was born, amid an atmosphere of hope, the world formed the United Nations Framework Convention on Climate Change to solve the climate crisis.

In the Solomon Islands, my homeland, communities on low-lying atolls are already being displaced by rising sea levels. Communities have lived on these atolls for generations. Moving from one province to another in the Solomon Islands is not just like moving house. Your land is your identity. It is part of your culture. It is who you are.

I am scared, and so too are the people from these atolls about what this means for our culture, our communities and our identity …”

There are great technical questions involved in our response to climate change, and great political questions involved in responding in a way which will be effective. But Christina Ora got directly to the heart of the moral problem when she wrote those words. Her home and her identity are threatened in the most fundamental way. What are we going to do about it? At present, the answer seems to be: nothing useful.

The civilized nations of the world need to recognise the fact that environmental refugees are human beings who deserve a place to stand and a chance to survive, because they, like us, are members of the human race. But their claim for our help is stronger than that. The wealth of the developed world, the wealth we enjoy today in Australia, was created by the very activities which have caused global warming. The conditions we enjoy today came at a price to the environment, a price we have been able to recognise for at least the time since Christina Ora was born. We cannot decently expect the Pacific Islands to pay the price for us. The life we enjoy so much in Australia has had its impact on Christina Ora’s country: an impact which may prevent her from having a place to live. She wrote:

“Because of climate change, I am uncertain about what is to come. How can I feel that my future is safe? How can I be sure that my home village won’t disappear in 10 years’ time? How can I be sure that my community won’t have to find a new home? How can I be sure that I will be able to raise my children in the same place that my mother and father raised me? I am not sure. I am scared and worried.”

We owe her.

Apart from all the other steps which need to be taken, we need a new international treaty which recognizes environmental refugees as people who are entitled to protection. It is a global problem and calls for a global response. This is no revolutionary idea: it is a matter of simple decency. It is the Golden Rule in action. Unfortunately, apart from trade and commerce, we are not good at global co-operation. Australia can, and should, develop its own framework for the protection of environmental refugees who arrive on our shores. Ideally, it should be done in co-operation with our Pacific neighbours.

Australia is well placed to take constructive steps to help protect environmental refugees from the Pacific. It will certainly need careful and sensitive planning, because environmental refugee flows are likely to have features which are not shared by traditional refugee flows. In particular, their escape to safety is likely to be more planned, and much less hurried, than is typical among those fleeing persecution. The threat can be seen long before it hits. Entire communities are likely to move. Resettling them should take account of that reality. This brings with it an increased need to help preserve their cultural integrity as far as possible.

The prophets of doom will, of course, raise the spectre of Australia being engulfed by a tide of environmental refugees. In truth, the likely numbers will not be very great in demographic terms. For example, the population of all the islands comprising Micronesia is a total of about 575,000 people. The population of all of the islands comprising Polynesia is a total of about 662,000 people. The population of all of the Pacific islands, is about three million people. Even in the unlikely circumstance that all of those three million people had to be absorbed into the Australian population over the course of 10 years, it would be manageable, although it would have a significant demographic impact. On present trends, regardless of climate change, we are likely to receive, voluntarily, about two million permanent new migrants over the next 10 years.

Of course it is highly unlikely that the entire population of the entire Pacific would need, or for that matter choose, to move to Australia. So the numerical size of the problem will certainly be less than three million people. A more realistic way of looking at the matter is to consider which Pacific islands are most likely to become uninhabitable over the next decade. That restricts the range to the smaller islands. If we adopt a population of 50,000 or less as indicating smaller islands which are more likely to be inundated and made uninhabitable by rising sea levels, the picture becomes much simpler. There are 11 island nations in Oceania with populations smaller than 50,000. Their combined populations total 87,000 people. That number of people could be absorbed into the Australian community in a single year with no discernable difficulty at all.

As a matter of ordinary human experience, people are generally reluctant to leave the place of their birth unless they have to. If the population of low-lying islands in the Pacific are forced to move because their homeland becomes uninhabitable, the scale of the problem is one which Australia can manage, and the nature of the problem is one which Australia ought to manage. We should be prepared to recognise them as people who deserve protection, and grant it to them without resentment.

It may be objected that all of this sounds like a lot of trouble. Perhaps we will ask the rest of the world to shoulder the burden for us, as we did while we held Afghans and Iraquis on Nauru under the ‘Pacific Solution’, or as we did, even more brazenly, when we asked the rest of the world to take care of 78 Tamils held on the Australian Customs vessel Oceanic Viking in November 2009. But it is not as simple as that: it is not just a transient embarrassment that the international community thinks poorly of us for a time.

Our response to the legitimate claims of environmental refugees will define us. If we respond by shutting our doors, or by denying that environmental refugees have legitimate claims to our help, we declare ourselves to be selfish and thankless, just as surely as we showed ourselves to be callous and xenophobic when we embraced, for a time, the refugee policies of John Howard.

Given the scale of the major problems, it might be thought that individual goodness and national reputation count as trivial. But they are not. They go directly to a fundamental existential question: Do we think that we, as a nation, can survive while being true to our values? Do we genuinely believe the things we have for generations said about our ethics and ourselves? Or do we think that, when the crunch comes, it’s everyone for themselves? These questions involve much more than issues of presentation and packaging; they are matters of identity: Who are we?

If we take global warming as a reason to pull the drawbridge up, we will betray the entire accumulated legacy of human civilization which, with all its flaws, has always aspired to goodness even while falling short. We will betray the identity we have hewn for ourselves out of this tough country since the time of white settlement.

Marginalised citizens

I had a conversation with Tim Costello some years ago which significantly changed my way of seeing things.

He told me of a time when he was running the Collins St Baptist Church. A guy who had been sleeping rough for quite a while had turned up at the Church wanting a feed. Tim was talking to him. The guy said that that conversation was the first time in two weeks he had had eye contact with any other human being.

I can scarcely imagine what that must be like. That man had, at least in his own mind, completely disappeared.

I have thought about that conversation often. The idea of such alienation haunts me. But there are many people in our society who have, at least in their own minds, disappeared. These are the people who, because of mental health problems, or simple bad luck, find themselves nursing a grievance that no-one wants to hear about. The more they complain, the more they are ignored; the more they are ignored, the louder they complain. The louder they complain, the more they are avoided, viewed with suspicion. And once that cycle sets in, their problems become more and more real to them, less and less real to those around them.

These are the people who ring late night talk-back radio and harangue the host until even the panel operators know to filter them out. They are the new outcasts.

My conversation with Tim came in useful during the first round of Australia’s recent panic about asylum seekers. Between 2001 and about 2006, a lot of Australians were persuaded to be anxious about boat people arriving here. After all, the Howard government had told us they were illegals; that they had thrown their children into the sea; that they had jumped a queue somewhere. And the struggle to prevent the country from being swamped by this tide of potential terrorists was paraded as “border protection”.

Howard recognised that there were votes to be taken from One Nation if only he could make us fear the alien horde and position himself as our protector. It worked.

There is a story that I have on fair authority which shows clearly what was going on. Howard was about to enter the House of Representatives to deliver his speech explaining the government’s response to the Tampa. Jackie Kelly approached him in the lobby. She said that a lot of her constituents were deserting to One Nation. Howard waved his speech in front of her and said “Don’t worry – this will fix it”. As most people thought at the time, the government’s response to the Tampa was purely political. Of course, Howard had a great run of good luck in 2001. His government refused to let the Tampa put its bedraggled cargo of rescued Hazaras ashore on Christmas Island; he cobbled together the Pacific Solution while the court case about Tampa continued. The judgment at first instance in the Tampa case was handed down at 2.15 Eastern Standard Time, on September 11, 2001. The result was not noticed in the newspapers next morning, because a group of Islamic extremists had attacked America.

From that moment, there were no terrorists, but Muslim terrorists; there were no boat people but Muslim boat people and, although it was never clearly stated, all boat people were suspected terrorists – our worst nightmare. For those who did not see through the political opportunism, boat people were aliens to be feared.

Of course, if the true facts were understood, our response would have seemed rather odd. it did not suit the politicians to acknowledge that boat people were not illegal, that there was no queue, that they had not thrown their children overboard, and that they were trying to escape the same extremists we were so frightened of.

For my sins, I became involved in the issue. I was regularly asked to speak, at public events and private, about asylum seekers. It seemed to me that the key to the problem was to explain the facts. Naively I thought that most Australians would recoil at the idea of wilfully mistreating men, women and children who had done nothing wrong but try to escape to safety.

A couple of unexpected things happened. First, I got a few death threats. It surprised me that, having done a few pretty contentious cases in my career, I should receive death threats for going to court pro bono on behalf of people who were, self-evidently, voiceless and powerless.

And whenever I was quoted in the media saying something outrageous like “It is wrong to imprison innocent children and drive them to suicide”, I would receive a torrent of hate mail.

The anger and intensity of the hate mail astonished me then, and it still does. It struck me as remarkable that people would write to a complete stranger in such bluntly abusive terms. And the mail I got was seriously, vigorously abusive.

Since I had set myself the goal of converting all of Australia to understanding the facts, I decided to answer all the hate mail. After all, these people had self-identified as disagreeing with my views. My reasoning, flawed as it looks now, was that if only the people who disagreed with me could understand the facts, then they would come around to my way of seeing things. If enough people changed their views, the government policy would have to change. Clearly I did not know what I was dealing with.

Still, I resolved to answer all the mail I could. Mail that came by post was impossible to answer because, as a rule, people who use the postal service are a forgetful lot who did not include a name or address. But most of it came by email and, even if I did not know the sender’s identity, I could respond by simply hitting the reply button.

I sat up late at night answering emails: thousands of them, mostly abusive. Some of them all in capitals; lots of exclamation marks and lots of very rude words. I am no shrinking violet, but I was astonished by the rudeness of many of the emails I got. Unpopularity brings strange rewards.

Since their complaints fell into a few recognisable patterns, I had a few standard responses. Typically I would grit my teeth and say something like “Thank you for your email. I gather you do not agree with me. But did you realise that … “ they do not break any law by coming here asking for protection; there is no queue… etc

If I was surprised by the rudeness and vehemence of most of the emails, what followed was even more astonishing. Nearly all of them responded to my reply…and every response was polite. The responses fell into a few patterns, but typically they said “thank you for answering me, I did not expect to hear from you. The facts you sent me are all very well, but …” and then they would set out other objections. I replied with more facts to answer those objections.

Over the course of thousands of bits of hate mail, I estimate that about 50% ended up saying, in substance “Thank you for discussing this issue with me. I agree with you now”; and about 25% ended up saying, in substance “Thank you for discussing this issue with me. I don’t agree with you, but it is good that you stand up for what you believe”. The other 25% remained entirely unconvinced and, I assume, continued to vote for Mr Howard.

What struck me in all this was the story Tim had told me. I guessed that the people who wrote to me – and who did not expect a reply – were so alienated from the community that their only means of expressing their anger and fear and resentment and confusion was by writing to someone mildly prominent.

It occurred to me then that the passion which drove their initial hostility was the mark of people who were alienated from the community: they were accustomed to being ignored, so they fall to shouting abuse as a way of getting attention. Just once listen to them, and they quickly fall back to observing the ordinary rules of civil behaviour.

This is not just an argument for good manners: I think it goes much deeper. Too many people in our community feel alienated from it and that alienation is unstable: it tends not to self-correct, but to amplify itself.

We are a prosperous country: most of us are genuinely lucky. But we are not good at sharing our luck, and we have a strange habit of thinking that those who are less lucky must be, in some way, responsible for their own misfortunes.

There are many reasons why members of the community become alienated from it. They may have been dealt a bad hand: they have been born poor, they have been badly educated, they have a mental or physical disability, they have bad luck in employment, they make bad choices which lead them into a hopeless life. Any one of these disadvantages can lead to a cascade of events which leave a person at the bottom of the pile. And when compassion turns to vindictiveness these people suffer twice for the disadvantages they could not avoid.

Because everyone, it seems, knows my name, address and occupation I get a lot of unsolicited requests for pro bono help. It has been interesting, not to say distressing, to see the sort of troubles that plague people in our community. I get a large number of requests for help. I make it clear that all I can do is offer pro bono advice. I have a group of talented interns who help me deal with the problems.

What is distressing is that the majority of people who write to me this way do not in fact have a recognisable legal or human rights problem. Typically they are people who have had some bad luck, have made some bad choices, and find themselves trapped in a spiral of disadvantage, distress, unemployment and mental instability. At that point, anything that looks like a legal or human rights problem prompts them to reach out for help. I imagine that medical clinics have a similar experience.

When I write to them with further questions, or with advice about what to do, it usually becomes clear that they have already been to just about every imaginable place for help: Legal Aid, a Community Legal Centre, government departments, their local doctor or MP. No-one can help them, because they have no single, clear problem apart from the fact that they feel alienated from everything. Part of their distress is caused by feeling so isolated.

The most distressed, and distressing, group are people who are probably paranoid schizophrenics. One person who writes to me quite often is convinced that the police, and other government agencies, are spying on him all the time and that they have a secret control order against him. He is intelligent and well-educated. He sends video footage of ordinary street scenes, at the traffic lights, in shopping centres, in suburban streets and he asserts (and no doubt believes) that various people captured on his videos are in fact plain clothes operatives – stalking him, watching him, keeping him in a kind of open prison. He points out, rationally enough, that such conduct is a serious breach of his human rights. And if the innocuous scenes he sent showed what he sees, he would be right. But they do not show what he sees. They prove nothing at all. He insists that the Commonwealth government have a secret control order against him: but he can offer no explanation how a control order can work, if it is kept secret from everyone.

The difficulty with people like this man is that they cannot be convinced that their view of the facts does not line up with reality. And it is hard for a lawyer to tell a would-be client that he needs psychiatric help.

The end result is that people like him get pushed from pillar to post but rarely if ever get the help they actually need.

There are only a couple of bright spots in this dismal tale.

The first concerns a lady who turned up in my chambers one lunchtime, quite distressed and wanting to see me. We chatted for a bit, but the long and short of it was that she had been receiving treatment for paranoid schizophrenia, her treatment had been interrupted; she became convinced that her treating doctor was trying to kill her with the medications he had prescribed, so she decided not to take it any more. She wanted me to take possession of the diary she had been keeping because she was confident that she would soon be killed and she wanted me to have the evidence which would identify the guilty party.

We spoke for some time. Somehow I managed to persuade her to go to a new doctor – someone who could not possibly know or conspire with her treating doctor – and agree to take whatever medication he prescribed. In the meantime I would protect her diary.

About two months later she turned up again.   She had been to another doctor. She had taken the medication he prescribed. She was feeling a lot better, and realised that she had misjudged her original doctor. In the circumstances, she did not need me to look after her diary any more.

How odd that one of my few successes in the field of human rights should result from a modicum of medical knowledge and a bit of common sense.

The second bright spot is this. Most of the people who write asking for pro bono help have simply not got a legal problem. While they may have had a genuine legal problem in the past, typically it is buried in history and statute barred years or decades before. The real problem is that their lives have gone off track, and they no longer feel any connection to the society which has let them down so badly. A surprising number of these people seem to benefit from having their problem taken seriously, from getting a written advice in response to their letter, or from being listened to for half an hour.

The message is clear: in our Society there is a large number of people who feel alienated. They feel, with some justification, that the show is being run for the benefit of others and not for them.

A decent concern for our fellow citizens says that we should notice these alienated ones and help them know that they belong with us. And if simple human decency will not impel us to do it, then enlightened self-interest should: once there is a large enough group of disaffected individuals in our midst, the chances of some of them taking steps to damage the rest of us increase. And who is to say they are wrong? Who among us would long tolerate being excluded from the goods Society has to offer?

Conclusion

The moral rebranding of a nation goes to the heart of inter-generational justice, just as surely as our environmental legacy does. But this is easily overlooked. It involves more than issues of deceptive packaging. We are handing over to the next generation a world beset by problems which are unique in human history and which do, without exaggeration, involve challenges for civilization as we understand it, and perhaps for the continued survival of the human species. We should avoid saddling the next generation with a tarnished national reputation to add to these burdens. But more than that, we should try to hand over a country which has had the decency to be true to its declared values.

Individuals and groups have faced equivalent tests before this. Many people have seen the film Hotel Rwanda. It is set against the backdrop of the genocide which occurred in Rwanda in the first half of 1994, when Hutu rebels slaughtered 900,000 Tutsis in the space of 100 days. The central figure in the film is Paul Rusesabagina.

Paul is a Hutu married to a Tutsi woman. He is manager of a hotel in Kigali. When the Hutu uprising begins, the world turns its back on the slaughter. Paul turns the hotel into an ad hoc refugee camp for almost a thousand people, and keeps them safe at immense personal risk. He calls in favours, he bribes corrupt officials and he witnesses unspeakable horrors. There is a key moment in the film where he has a chance to escape to safety, but decides, on the instant, to stay at the hotel until the refugees are safe. We see it immediately as an act of heroism but also of madness – Who in their right mind would risk taking on the Hutu mob?

The remarkable thing is that the film is entirely true. Paul Rusesabagina commanded personal resources beyond imagining. He succeeded in saving the 1,000 refugees who crowded into his hotel; with them, he escaped to safety; he now lives in Belgium. He has been given Amnesty International’s “Enduring Spirit” award, and in 2000 he received the Immortal Chaplain’s Prize for Humanity.

He brings to mind Primo Levi’s friend Lorenzo, in Auschwitz. Levi wrote of him:[12]

“… he constantly reminded me, by his presence, by his natural and plain manner of being good, that there still existed a just world outside our own … a remote possibility of good, but for which it was worth surviving…”

The events in Rwanda developed with astounding speed: no-one recognised in advance the direction things would take; no-one imagined in advance that the Hutu uprising would be so swift and so savage.

It is not possible for any of us to know how we would respond in similar circumstances. It is undeniable however that some people have the strength to recognise that there is a time to say, regardless of the cost, “this cannot happen”.

We are mistreating boat people, out of a misconceived fear that they are criminals: a fear provoked by political lies.

We are denying the reality of climate change.

We are increasingly disinclined to notice those of our own citizens whose luck has dealt them a bad hand.

And all the while we cherish the belief that, as a nation, we are generous, decent people.

Paul Rusesabagina held true to his principles at the point when it mattered most; in Auschwitz, Primo Levi’s friend Lorenzo did the same. Most of us would like to think we could act with similar decency, even if we had not the same courage.

But we are failing the test with refugees, and soon we will be tested again. The circumstances will not be as dramatic; it will not be the occasion for epic heroism.   But our choices will decide whether our neighbours in the Pacific have a chance of living, or will be left to drown as their islands disappear. We will choose between selfishness and decency. Our response to the plight of climate refugees will tell the next generation of Australians who we were. Will we be true to them? Will we be true to ourselves?

If we had to answer that question right now, as the Federal Government shows by its conduct that it does not believe global warming is real, then the answer would be disappointing.   So it is time to stand up and declare ourselves. Australia can cope with the predictable number of climate refugees likely to seek a home here. We like to think that it is in our decent and generous nature to help those who need our help. We can do it. We can do it and survive.

For the sake of future generations of Australians, let us hope that we will we be true to ourselves when it counts. If we are to be led by enlightened self-interest, we need to recognize minimal cost of living up to our ideals, and the immense value of doing so.

 

[1] King James Bible, Matthew 7:12

[2] Mahabharata, 5:1517

[3] Samyutta Nikaya v. 353

[4] Analects 15:23

[5] Number 13 of Imam Al-Nawawi’s Forty Hadiths

[6] T’ai Shang Kan Ying P’ien

[7] “What you would avoid suffering yourself, seek not to impose on others.”

[8] “May I do to others as I would that they should do unto me.”

[9][9] “Do not do to others that which would anger you if others did it to you.”

[10] “Treat your inferiors as you would be treated by your superiors.”

[11] “Act as if the maxim of thy action were to become by thy will a universal law of nature.”

[12] If This is a Man Primo Levi.

Speech to Labor National Conference

Today I recorded a speech to the Labor National Conference.  I did it because I was asked to.  They may not like it.

SPEECH TO LABOR NATIONAL CONFERENCE

What I have to say to you today is not what I would have expected to say.

I do not expect you to agree with me.

Let me start by saying that in my view the current Prime Minister is the worst in our history. The current Government is probably the worst in our history.

But we also have the least effective Opposition in living memory.

It will not be news to you that a lot of people – at least those who think about their vote instead of voting out of habit – must be wondering whether either of the major parties is worth voting for. In my opinion, they aren’t.

There was a time when Labor stood for something. If it still stands for anything, it has been conspicuously quiet on the matter.

On asylum seekers, Labor’s record is patchy and getting worse. In the 2013 election campaign Labor tried to out-promise the Coalition on the cruelty with which it would treat boat people.

I know that asylum seeker policy might be seen as a niche issue, but we are now at the stage that it calls in question the character of the nation.

Labor’s refugee platform speaks in high-sounding terms of fairness and humanity, but it stays silent on the fact of deliberate, intentional cruelty to boat people.

How many Labor MPs have even been to Manus Island or Nauru?  When was the last time a Labor parliamentarian went to Manus Island or Nauru?  How much do Labor parliamentarians know about the shocking conditions in offshore detention?  Labor has not used its position to expose the cruelty and hypocrisy of the Government’s position.

The Coalition’s rhetoric says they are worried about asylum seekers drowning in an attempt to reach Australia, so they punish the ones who don’t drown. It is an intentionally hard line. It is a hard line which depends on a cruelty.

To an outsider, the only difference between the two major parties is this: the Coalition treat boat people and boasts about it; Labor would mistreat boat people, but is ashamed of it.

A voter recently wrote to 45 Federal MPs asking two simple questions:

“In your personal opinion, are asylum seekers who arrive in Australia by boat treated humanely?

“Do you consider that people who arrive in Australia informally and seek asylum should be called ‘illegal’?”

Nineteen of the MPs were Labor MPs. Fourteen of the Labor MPs ignored the letter. They didn’t even acknowledge getting it.

One of them forwarded the letter to Richard Marles (the Shadow Immigration Minister) which is a strange thing to do when a personal opinion was asked for. But it didn’t matter because although Marles replied, his reply did not answer the questions.

Four other Labor MPs responded to the letter but did not answer the questions. They did say it was important to treat boat people with compassion and fairness, in a dignified humane way. Well, maybe Labor could advance those ideas publicly.

Do any of you have any idea how cruelly people are treated in offshore detention?

If you understand how shocking things are on Manus and Nauru the answers to that voter’s letters might have been different.

But how many Labor MPs have been to Manus or Nauru? When was the last time any Labor MP visited Manus or Nauru?

Either you have not bothered to find out the facts, or you know the facts and don’t care. Either way, Labor should be ashamed of itself.

The Opposition has a chance to be the second-loudest voice in the country. So why are you so quiet about these things?

Labor supported the Australian Border Force Act, which makes it a criminal offence to disclose anything about conditions in detention, including instances of child sex abuse.

There is a defence in section 48, which permits disclosure for the purpose of reducing a serious risk to the life or health of a person. But Labor’s Shadow Minister seemed to be unaware of section 48, and instead defended the legislation by pointing to the more onerous provisions of the whistle-blower legislation.

The only available inference is that Labor supported the legislation without understanding it, and without regard to the obvious chilling effects which the legislation is bound to have.

If Labor actually believes that people in detention should be treated with dignity and compassion, it should not have supported the Australian Border Force Act.

But that’s the problem: viewed from outside, it looks as though Labor does not actually believe in its own rhetoric. In fact, it looks as though Labor does not believe in anything much at all.

If that is where today’s Labor Party stands, it will not long survive.

Labor today looks like a weak centre-right party which does not believe in itself. A party that believes in nothing except power will end up with nothing at all.

If Labor refuses to stand up for the principles it espouses, to articulate them and then argue for them, it forfeits its right to any political support.

 

Kate Durham’s speech at the opening of “Home Here and Now”

Opening of Home Here and Now at Walker St Gallery, Dandenong, 2 July 2015

 

Hello Dandenong. Defiant Dandenong, look at you, how you’ve grown. I remember you, but not like this. Dandenong you are like a council of nations. Here in this intricate city is an Ark, as if from the bible, representatives of every breed, clan or culture are assembled here, a gathering has taken place, Moses would be pleased. But what did this city know of the bewildering displacement, the loss of art and cultivation, the self-expression or the needs of the people of the world? Or how to welcome their tentative steps towards a cautious resettlement, in an often hostile terrain?

What is the purpose of the shelter, the vessel, the shield you have made here? The purpose is a very human one: to allow people to represent and to reproduce themselves, and their lives; to find passage to future generations, to stretch their allotted time and space on this ground, to leave a sea of turmoil. Like those animals in the Ark, people seek, if not deliverance from a place of evil, then a place to stay and to be, the way a creature needs a habitat.

The people of the well-named “Greater Dandenong” recognised as an opportunity, other’s need to find a resolution to the search, a nest, a home, a full stop. With them, they also knew those exotic people would bring their freight of ancestry, their knowledge,,, their joke-bags, their grievance and losses, fears and expectations.

Their great enterprise will be to flourish, but also to pass on an indefinable essence, to pass it on, and to pass it on. Like the game Pass The Parcel: here is my gift, it may get smaller, but keep it, please keep it.

I’m picturing Dandenong, twenty years from now. Take yourself there now, on a little mental voyage. You may discover, that for the first time in a long while, white people, and certainly white females like me, even with the price of a ticket, can no longer travel to more than a quarter of the world’s surface, its prohibited or at least risky. White people are astonished, they have been the ones fussing over, visas, tickets and border control . We, no longer rule the world. we start to experience ostracism, mistrust and boundaries, like those immigrants only a generation ago.

The travel Industry, has not shut down, a vast commercial machine like that won’t rest or die, it will simply restrict or invent our horizons in a manner that suits its business model. They are already doing it. Travel is re-focussing, its offering has changed. In the 70’s the idea was to experience otherness, other cultures, other vistas. Nowadays its imperative to experience more about YOU. You, trekking, you on a mountain. you, snorkelling, you chilling on a beach, any beach. You taking a short trip around Europe within the sanitary and speedy confines of an ersatz Las Vegas: Disneyland for grown-ups, time – poor and afraid of anything but the highlights…

Some of you and some of these artists will remain here in Dandenong. Most of you will possess far more than highlights, you will have the fine grain, the memory, the advice of your former politics and parents. You will have a culture that is not thin, not dilute, but strengthened by its hybridity. Dandenong will be well known for its cultural curiosity and learning.

The artists in this show have something in common, mostly their otherness. In the future, artists like Valamanesh will not have such close, direct insight into Islamic Art and its cosmic gaze, but they’ll have this artist to guide them so the past won’t be so misunderstood. I’ve followed this artist for a while, admiring his cool austerity and wit.

I also know and have desired artworks by Guan Wei, also witty, with an out-sider’s idiosyncratic eye in relation to Australia.

Rhubaba Haider’s work spoke immediately to me of her feminine Hazara heritage. She has morphed that knowledge into something strong yet fragile and contemporary, and philosophical. Whilst retaining a great deal of a typical Hazara woman’s discipline and personal restraint.

Khaled Sabsabi”s work turns like a Dervish on Sufi themes, that strange metaphysical branch of Islam which is becoming endangered. Thank you Khaled for preserving it.

Gosia Wlodarczak’s unsettled lines following and chasing life, restless and unfixable, charting her relationship to objects. She makes a cartographic record over time and space.

Kosar Majani’s work is highly symbolic and resonant. It speaks of unrelenting rituals and repetitions that we’ve never known or encountered, in our young country.

20 years from now we may find ourselves grateful that Greater Dandenong ignored the ”Team Australia “slogans of some of the worst leadership known in this country. That Prime Minister tried to frighten us about the living and cultural aspirations of others, demanding to know whose side we were on, challenging us to mistrust foreigners or the unfamiliar.

Fortunately we barely remember that Prime Minister, he left no relics or artefacts. Unlike these artists who will again join us in a gathering just like this to fill this once slight and shallow space with all our lives, heredity, children, art, adventures and exploration on the vast subject of US and WE. Not THEM or THEY.

Thank you Dandenong, dear Dandenong: you are the Ark. Pass it on, pass it on.

Hal Wootten Lecture 2015: “The bludgeoning of chance”

HAL WOOTTEN LECTURE 2015
“The Bludgeoning of Chance”
UNSW 30 MARCH 2015
Julian Burnside AO QC

I am honoured to have been invited to give the Hal Wootten Lecture for 2015.

The history of the lecture has had some interesting moments. When it was given in 2006 by Jose Ramos Horta, he discovered in the nick of time that it was not a memorial lecture. He rapidly revised the tense of some references in his speech, saving Hal from premature extinction. In 2008 the lecture was given by Hal Wootten himself, as if to underline the fact of his continued survival. When I was invited to give the lecture, I was introduced to Hal, presumably to ensure that Ramos Horta’s initial misconception would not be repeated by me.

My pleasure in being invited to speak is increased by the fact that the eponymous subject is present tonight. And because he has long since ceased to sit as a Judge, I can say nice things about him without being accused of descending to that flattery which barristers reserve for Judges in the hope of more favourable decision making – a technique which, I hope, I never indulge in and which, I believe, never works anyway.

Hal Wootten’s lecture in 2008 is genuinely fascinating. It is available on the UNSW website. I hope people will read it. It’s a beguiling mix of autobiography and recent history. It is the portrait of a man who is genuinely dedicated to the law: not for what it can provide him, but for what the law can do for Society.

As his 2008 lecture points out, in the years since the Second World War ended, law has taken on the character of a business rather than a profession. Many lawyers, like most members of society, see the acquisition of wealth as their primary objective. But not Hal Wootten. He is an example for all lawyers.

There is another point that illuminates Hal’s lecture in 2008: a real appreciation of literature in general and poetry in particular. His lecture recites, or refers to Lord Wavell’s anthology “Other Men’s Flowers”, and to Shakespeare, Dickens, Thackeray, Mayfield, Henley, Cervantes and Jean-Dominique Bauby. Among other things, his lecture quoted the first verse of Henley’s Invictus:

Out of the night that covers me,
Black as the pith from pole to pole,
I thank whatever Gods may be
For my unconquerable soul.

His taste for poetry is hidden in the title of tonight’s lecture. When I agreed to speak tonight, I chose as my theme  The Bludgeoning Of Chance. That phrase comes from the second verse of Invictus:

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeoning of chance
My head is bloody, but unbowed. …

“The bludgeoning of chance” is an idea rich with possibilities.

Chance has paid a major role in my stumbling from an uncertain Year 12 student to be here tonight speaking in honour of one of the greats of the Australian legal profession.

At the end of Year 12, I did well enough to surprise myself and everyone else, but I had no idea what to do with my future. Back then, when standards were lower than they are now, I was accepted into four or five different courses at both Monash University and Melbourne University. Those were the days when Victoria had only two universities.

I chose to do law at Monash University rather than law at Melbourne, or engineering or architecture or arts, for the unsophisticated reason that a former boyfriend of my sister was doing law at Monash. I had always enjoyed his company and I thought it would be nice if I knew someone in the new and alarming environment of a university.

Although notions of justice had always interested me, I had no intention of practising as a lawyer. My real but secret wish was to be an artist. But I was also interested in the idea of having an income, something most artists do not achieve except posthumously, so being a management consultant seemed like a good idea. Management consulting was the career-du-jour in the late 1960s, so I took up an economics degree as well as a law degree.

Back in those days when the world was relatively innocent (apart from the Vietnam War) mooting was an optional activity. Only nerds did it, so naturally I was attracted to it. Perhaps because it was a fairly thin field, I had the good fortune to be chosen as a member of the Monash mooting team in the Australia and New Zealand intervarsity mooting competition in my second last year. It seemed almost too marvellous to imagine that I would be sent to New Zealand at a time when I had never been overseas, not even to Tasmania.

The mooting competition was held in Auckland. The final moot was presided over by the then Chief Justice of New Zealand. I had the great good fortune to win the Blackstone Cup as the best individual mooter. At the prize-giving and drinks function after the final moot, the Chief Justice was talking to me and asked what I planned to do. I was reluctant to tell him I wanted to be an artist, so I said I was thinking of being a management consultant. He said “You should go to the Bar”.

That brief exchange comprised the whole of my career planning. On the instant, I decided to become a barrister, although I had no clear idea quite what that meant. It has occurred to me in recent years that it would be very entertaining to discover what he had meant was that I should go and get another glass of wine. I quite like the idea that a career which has been so influenced by chance might have been shaped by a misunderstanding.

As fortune would have it, a friend of mine gave me a copy of Irving Stone’s biography of Clarence Darrow for Christmas later that year. Reading about Darrow fired me up with the possibilities of being an advocate. Darrow, as some of you will recall, was the great trial advocate of the first half of the 20th Century in the United States of America. He was famous (some would say notorious) for his championing of unpopular causes and for the rights of the oppressed.

Chance however had a continuing role to play in my career. Because I had an economics degree with a major in accounting, I quickly found myself doing income tax work and then trade practices and general commercial work. It came readily enough, but it was a very long way from Clarence Darrow territory.

Putting to one side the fact that I always felt lucky whenever a new brief came along, chance played another pivotal role in 2001. As some of you will recall, in late August 2001 a Norwegian cargo vessel, the Tampa, went to the rescue of a small boatload of refugees – Afghan Hazaras fleeing the Taliban. The captain of the Tampa estimated that there might be 50 people on board the Palapa, which was falling apart in the Indian Ocean. He was astounded when 438 people climbed out of the sinking wreck. Then he had a problem. A number of the people he had rescued were in a serious medical condition and so he headed towards Christmas Island – a small outpost of Australia in the Indian Ocean. When the Tampa entered Australian territorial waters off Christmas Island, John Howard sent out the SAS who took command of the bridge at gunpoint. There was a standoff. Howard would not let the Captain of the Tampa discharge the refugees onto Australian soil at Christmas Island; but the Tampa was licensed to carry only 50 people and, together with the crew, he had almost 500 people on board.

A friend of mine at the Bar, John Manetta, devised a case theory which he thought might resolve the impasse. He asked me if I would act pro bono on behalf of the people who had been rescued by the Tampa. I agreed: not because I knew anything about refugee law or policy (which I didn’t) but because I thought it was wrong to hold a group of people hostage on the steel decks of a ship in the tropical sun.

The Commonwealth fought the case very hard. During the running of the case, Mr Howard announced the formation of the so-called Pacific Solution. The Judge reserved his decision on the afternoon of the 5th September and delivered judgment at 2.15 in the afternoon (Melbourne time) on the 11th September, 2001. It was not good timing. Some hours later, the attack on America happened. Some people said it changed the world. I disagree, but it certainly changed the appearance of many things.

Suddenly, there were no terrorists, just Muslim terrorists. Suddenly, there were no boat people, only Muslim boat people. Suddenly, boat people were not frightened refugees but “illegals” and “queue jumpers”.

By virtue of doing the Tampa case, I learnt quite a lot about Australia’s refugee law and policies. I knew enough about economics from my University days to know that when the price falls to zero, the elasticity of demand goes vertical. So it was that I found myself doing a substantial number of pro bono refugee cases. And that is when I began to see at firsthand what the bludgeoning of chance can do to people.

In case after case, I saw how shockingly people were treated who had run out of luck in their home country and ran into cruelty and indifference when they tried to reach Australia.

I learnt of the young Hazara man who, astonishingly, was returned to Afghanistan by the Australian Department of Immigration and, instead of fleeing into Pakistan as many other Hazaras have done, he went back to his village. There, the Taliban hunted him down and dragged him out into the town square. Then they threw him down the town well; and they dropped a hand grenade in after him.

And there was the case of Mr H who had fled Saddam Hussein’s regime. Within a couple of weeks of his arrival in detention in Australia, officers of the Immigration Department noted that he had suffered torture in Iraq at the notorious Abu Ghraib Prison and that the form of torture which most frightened him was being locked in a small room. In Abu Ghraib, he had regularly been held in a small cell where he was randomly electrocuted through water in the floor.

After about 15 or 18 months in detention, he fell into hopelessness and despair. It is typical for asylum seekers in Australia’s detention system to lose hope after about 15 or 18 months. When Mr H fell into hopelessness, he started self-harming. Whenever he could find a bit of broken glass or a bit of razor wire, he would cut himself. When he cut himself, the Immigration Department did two things: they gave him Panadol (which seems to be the universal treatment in immigration detention) and they put him in solitary confinement – in a small cell. This did not help him. After a couple of weeks in solitary confinement, he would come out even more desperate than when he went in. He would then harm himself again and the Department would give him Panadol and solitary confinement. This went on for five years. Eventually, some lawyers in Adelaide took a case to the Federal Court of Australia seeking an order requiring that Mr H, and some others in similarly desperate circumstances, should be taken to the Glenside psychiatric hospital in Adelaide for assessment and, if necessary, for treatment. The Commonwealth resisted the application and fought the case for several weeks. Eventually, the Judge determined that the detainees should be sent to Glenside for assessment and if necessary for treatment.

When Mr H was taken to Glenside he was assessed mentally and physically. The physical assessment showed that he had 10 metres of scarring on his body from his self-harming in Immigration Detention. He subsequently got a protection visa, but his health is ruined. Saddam Hussein tried to kill him and failed. Australia tried to incapacitate him and succeeded. Chance bludgeoned him almost to death.

There was the case which, for me at least, forever changed my view of this lucky country. It concerned an Iranian family – mother, father and two daughters aged 11 and 7 at the relevant time. They were members of a small, pre-Christian religion: a religion which, in Iran, is regarded as unclean. If ever you think chance has dealt you a bad hand, try being a member of a religion which is regarded as unclean. There are plenty of historical precedents which show what a hard time those people get. This family stayed on in Iran for as long as they could bear it, because their parents and grandparents were buried there. But one day, after a shocking incident involving the 11 year old, the family fled Iran and ended up in detention at Woomera. After about 15 or 18 months, all of them were in a bad way but especially the 11 year old. The 11 year old girl had stopped caring for herself: she had stopped grooming herself, she had stopped brushing her hair; she was careless with her clothing; she had stopped eating. She was frightened to go to the toilet block, which was about 100 metres from their cabin, and she would wet the bed at night and wet her clothing during the day.

Back then, if you were held in Woomera and had serious psychiatric needs, you would get to see the visiting psychiatrist approximately once every six months. The 11 year old girl needed daily psychiatric help. A psychiatrist from Adelaide, who had heard about the case, went to Woomera and delivered a report to the Immigration Department saying that it was essential that the family be removed from Woomera and placed in a metropolitan detention centre so that the 11 year old could get daily psychiatric help. The report emphasized that the child was at extreme risk. Eventually, the Department agreed to move the family from Woomera in the South Australian desert to Maribyrnong in the western suburbs of Melbourne. There, although the purpose for moving them was that the 11 year old should get daily psychiatric help, for the first two and a half weeks of their stay nobody came to see her: not a psychiatrist, not a psychologist, not a doctor, not a nurse, not a social worker – nobody at all. It was as if they hadn’t even arrived.

On a Sunday night in May of 2002, while her mother and father and young sister were up in the mess hall having their evening meal, this little girl alone in their cell in Maribyrnong Detention Centre took a bedsheet and hanged herself. But she was only little and didn’t know how to tie the knot properly, so she was still strangling when the family came back from dinner. They took her down and she and her mother were taken straight away to the general hospital nearby. They were accompanied by two ACM guards so that, as a matter of legal analysis, they were still in Immigration Detention. Kon from the Asylum Seekers Resource Centre, who had been looking after the family’s visa application, heard about the incident and went to the hospital at about 9.30 that night. He said hello to the guards, who know him well because he is a regular visitor of Maribyrnong. He said he just wanted to speak to the mother to see if there was anything he could do to help. They said: “No you’re not allowed to see them, because lawyers’ visiting hours in Immigration Detention are nine to five” and they sent him away. Kon then rang me at home and told me what had happened.

If fate bludgeoned that family beyond endurance, it bludgeoned my life onto a new track that night. It is a very sad thing to discover that your country has betrayed the principles it once stood for. I learnt that lesson that night.

The 11 year old spent the next 12 months in the child and adolescent mental health unit at the Austin Hospital – until she was well enough to be put back in detention.

That case, that phone call, that night, together represent the most substantial impact chance has had on me.

In my naivety, I thought that, if the rest of Australia knew the things that I had learned, the Government’s refugee policy would not long survive. I started accepting invitations to speak about refugee matters. Only those here tonight who are practising lawyers will understand what a difficult decision that is. For members of the profession generally, and members of the Bar in particular, speaking publicly is not quite the done thing. I was deeply conscious of this as, one by one, professional colleagues and people I had thought were friends turned their backs on me. On this occasion however, chance played a surprising role. Kate and I were at a very glamorous social function one night when the wife of a very senior and highly respected professional colleague sidled up to me and said, somewhat archly, “Do you think it appropriate that a member of the Bar should speak publicly about these matters?” With more wit than preparation I replied “Do you think it appropriate to know about these matters and remain silent?”

The conversation ended there. And I gather she has no retort, because she hasn’t spoken to me since. And it resolved my anxiety about speaking publicly about “these matters”.

As time went on, our mistreatment of asylum seekers got worse and worse. There was Amin’s case. Amin and his eight year old daughter were in detention at Baxter. Baxter was a high-tech high security prison designed and purpose-built by the Howard Government for detaining refugees. Amin and his daughter were in their cell in Baxter one day when five guards entered the room and ordered Amin to strip. They thought he had a cigarette lighter. In Muslim culture, it is deeply shameful for a man to be naked in front of other people, but in any event his eight year old daughter was in the room so he refused to take his clothes off.

The guards roughed him up a bit and handcuffed him and took him to the management unit. The management unit at Baxter was a series of 13 solitary confinement cells. Each cell measured approximately 2½ metres square; the walls and floor are bare concrete. There are no furnishings in the cells except for a mattress on the floor. The occupant of the cell has no company for 23½ hours out of every 24 but no privacy either: because each cell is video-monitored 24 hours a day and for that purpose the lights are left on 24 hours a day. The occupant of each cell had nothing to read, nothing to write with, no television, no radio, no form of distraction of any sort. For Amin, the only break in his regime of solitary confinement was a 30 minute visit from his daughter each day. One day, when he had been in solitary confinement for a couple of weeks, his daughter did not come for her visit. Amin complained, and was assured that she had been taken into Port Augusta shopping and would be there the next day. But the next day came and went, and his daughter did not visit. The manager of the centre, an employee of the Department of Immigration, then explained to him that his daughter was now back in Tehran and if he wished to see her again he should abandon his claim for protection and return to Iran voluntarily. But first, Amin thought the man was playing a practical joke but when he was persuaded that it was true he had what amounted to a complete nervous collapse. He remained in solitary confinement for another six or eight weeks.

When the case went to court, the Department’s argument was that the Judge had no power to tell them how they should treat people held in Immigration Detention. The Judge disagreed. The Department appealed, apparently wanting to persuade three judges of the Full Federal Court to say that the Department was at liberty to treat people in Immigration Detention in any way it wanted. The appeal was dismissed.

By 2008 the boats had virtually stopped arriving. In July 2008, the first Rudd Government introduced a number of reforms to the Migration Act which satisfied about 90% of the concerns of refugee advocates. A while later however chance played another wild card: Tony Abbott became leader of the Opposition by one vote. As soon as he became leader of the Opposition he began complaining publicly and loudly about boat people. Mr Rudd responded by mounting a ferocious attack on people smugglers. It seems that in the heat of the moment he had forgotten that his moral hero – Dietrich Bonnhoeffer – had been a people smuggler, albeit a benevolent one. He had forgotten, it seems, that Oskar Schindler was a people smuggler and that Gustav Schroeder, the Captain of the St Louis, were both people smugglers.

When Julia Gillard became Australia’s first female Prime Minister, she ran a very ambivalent line about boat people. While expressing some concern for the circumstances which led them to flee, she said that she understood why Australians were concerned about boat people arriving in Australia. The asylum seeker debate went off on a new tack at about that time.

The low-point of the debate was seen in the campaign that preceded the Federal election of September 2013. That election campaign, for the first time in Australia’s political history, saw both major parties try to outbid each other in their promises of cruelty to boat people.

Tony Abbott won the election and made good of his promise to mistreat boat people. We now have the harshest imaginable policies in relation to boat people and arguably the harshest treatment of boat people of any country which has signed the Refugees’ Convention.

In broad outline it goes like this.

When boat people arrive at Christmas Island, they have typically spent eight or 10 days on a rickety boat. They have typically come from landlocked countries and have typically never spent time on the ocean. Typically, they have had not enough to eat and not enough to drink. Typically, they have had no opportunity to wash or to change their clothes. Typically, they arrive distressed, frightened and wearing clothes caked in their own excrement.
They are not allowed to shower or to change their clothes before they are interviewed by a member of the Immigration Department. It is difficult to think of any decent justification for subjecting them to that humiliation.

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

If they have any medical documentation with them, it is confiscated and not returned. The result of all of this is that people with chronic health problems find themselves denied any effective treatment. The results can be very distressing. For example: a doctor who worked on Christmas Island told me of a woman who had been detained there for some weeks and who was generally regarded as psychotic. Her behaviour was highly erratic for reasons that no-one understood. The consultation with this woman was very difficult because, although the doctor and the patient were sitting across a table from each other, the interpreter joined them by telephone from Sydney. Eventually, the doctor worked out that the problem was that the woman was incontinent of urine. She could not leave her cabin without urine running down her leg. It was driving her mad. When the doctor worked out that this was the cause of the problem, she asked the Department to provide incontinence pads. The Department’s initial response was “we don’t do those”. The doctor insisted. The Department relented and provided four incontinence pads per day: not enough, so that the woman needs to queue for more but the incontinence pads made a profound difference to her mood and behaviour.

In February 2014 Reza Barati was killed on Manus Island. Initially, Australia said that he had escaped from the detention centre and was killed outside the detention centre. Soon it became clear that he was killed inside the detention centre. It took nearly five months before anyone was charged with the murder of Reza Barati. Nobody has yet been brought to court.

Just a couple of weeks after Reza Barati was killed, I received a sworn statement from an eyewitness. The statement included the following:
“J … is a local who worked for the Salvation Army. … He was holding a large wooden stick. It was about a metre and a half long … it had two nails in the wood. The nails were sticking out …
When Reza came up the stairs, J … was at the top of the stairs waiting for him. J … said ‘fuck you motherfucker’ J … then swung back behind his shoulder with the stick and took a big swing at Reza, hitting him on top of the head.
J … screamed again at Reza and hit him again on the head. Reza then fell on the floor …
I could see a lot of blood coming out of his head, on his forehead, running down his face. His blood is still there on the ground. He was still alive at this stage.
About 10 or 15 guards from G4S came up the stairs. Two of them were Australians. The rest were PNG locals. I know who they are. I can identify them by their face. They started kicking Reza in his head and stomach with their boots.
Reza was on the ground trying to defend himself. He put his arms up to cover his head but they were still kicking.
There was one local … I recognized him … he picked up a big rock … he lifted the rock above his head and threw it down hard on top of Reza’s head. At this time, Reza passed away.
One of the locals came and hit him in his leg very hard … but Reza did not feel it. This is how I know he was dead.
After that, as the guards came past him, they kicked his dead body on the ground …”

Some of you will be aware that I have been running a campaign to encourage Australians to write letters to people held on Nauru and Manus. Just before Christmas last year, 2000 letters I had sent to Nauru were returned to me, unopened and marked “Return to Sender”. So far, the Department of Immigration has not responded to the four emails I have sent them asking for an explanation why those letters had not been delivered to the people to whom they were addressed. they have told members of the press that the named recipients of the letters did not wish to receive letters. Apart from being implausible, it stands awkwardly with the fact that, during the second half of last year, the Department assured me that the letters were being received and distributed.

Australia’s system of mandatory detention has been trenchantly criticized by Amnesty International and UNHCR. In late 2013, UNCHR delivered a report on conditions in the Regional Processing Centre (RPC) on Manus Island, saying:

“UNHCR was deeply troubled to observe that the current policies, operational approaches and harsh physical conditions at the RPC do not comply with international standards…”

It also reported on conditions in Nauru and said:

“…Assessed as a whole, UNHCR is of the view that the transfer of asylum-seekers to what are currently harsh and unsatisfactory temporary facilities, within a closed detention setting, and in the absence of a fully functional legal framework and adequately capacitated system to assess refugee claims, do not currently meet the required protection standards…”

Just as a person’s character is judged by their conduct, so a country’s character is judged by its conduct. Australia is now judged overseas by its behaviour as cruel and selfish. We treat frightened, innocent people as criminals. It is a profound injustice.

It is a hard thing to be forced by circumstances to leave the country of your birth in search for a place that is safe. The play of chance is worse again for those who must seek protection in a country whose language and culture is radically different from your own.

How much worse must it be to find that your bid for freedom ends up with punishment as harsh as anything you might have experienced at home. I have received messages from many refugees from many countries over the course of many years which say, in substance “In my home country they kill you quickly; in Australia they kill you slowly”.

One of the most distressing things about the present situation is that it is based on a series of lies. When politicians called boat people “illegals” and “queue jumpers” they are not telling the truth. When politicians say that they are concerned about people drowning in their attempt to reach safety, they are not telling the truth. Australia has recently reintroduced temporary protection visas. Temporary protection visas not only offer only three years’ protection, they deny the prospect of family reunion. That has one obvious practical consequence: families who wish to rejoin the husband or father who is living in Australia on a temporary protection visa are not allowed to come to Australia by any orthodox means, so the only way in which the family can be reunited is by the women and children using the services of a people smuggler. Temporary protection visas are a positive incentive for people to use people smugglers. Quite apart from that, there is something indecent about the idea that in order to prevent people from drowning in their attempt to reach safety you punish the ones who don’t drown. That is precisely what this country is doing right now.

Like most of you, I am aware that Donald Horne was speaking ironically when he wrote of Australia as “the lucky country”. But in most important ways, compared with the boat people who try to reach safety in Australia, we are indeed lucky. Over the past 15 years, 94% of boat people have been assessed, by us, as refugees genuinely fleeing the fear of persecution. In Australia, most members of the community never have to fear persecution; never have to fear for the late night knock on the door; never have to fear for their human rights.

But it is all because of the play of chance. Imagine for a moment that you are a Hazara from Afghanistan. You have fled your country and you have come down the northwest corridor through Malaysia and Indonesia. You can travel through both of those countries because they give you a one month visa on arrival. While you are in Indonesia you can go to the UNHCR office in Jakarta and apply for refugee status. If you are a Hazara from Afghanistan, you will almost certainly be assessed as a refugee. But when your one month visa expires, you have to hide because if you are found by the police, they will jail you. You cannot work because if you work you will be found and then you will be jailed. You cannot send your children to school because if you do you will be found and then you will be jailed. If the UNHCR has assessed you as a refugee, you can wait patiently in the shadows until some country offers to resettle you. That may take 20 or 30 years.

Now, for just one minute, imagine that you have been bludgeoned by chance into that position: you are that person. Will you wait in the shadows for 20 or 30 years or will you take your courage in both hands and get on a boat? I have never met an Australian who would not get on the boat. It’s a very strange thing that we criticize, revile and punish those who do precisely what we would do if chance had bludgeoned us into their position.

We know how chance has bludgeoned people who flee for safety. Chance never did them any favours: can’t we?

Sorry

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

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

We reflect on their past mistreatment.

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

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

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

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

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

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

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

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

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

One of the most compelling things about the apology to the stolen generations was that it was so decent. Suddenly, a dreadful episode in our history was acknowledged for what it was.

Unfortunately, when announcing that the Government would apologize to the stolen generations, the Prime Minister also said that the Government would not offer compensation. Let me explain why I think that was unfortunate.

First, let us look at the realities of the stolen generations and the attempts of some of their members to achieve recognition of what was done wrong and compensation for the harm which resulted.

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

Bruce Trevorrow’s case

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 the 1950s it was not lawful for an aborigine to live closer than one mile to a place of white settlement, unless they had a permit.

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

The baby’s 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. Such was the informality with which aboriginal babies could be given away in early 1958 in South Australia.

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

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

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

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

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

The trial had many striking features. One was the astonishing difference between Bruce – profoundly damaged, depressed and broken – 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. Their arrival to give evidence at the trial was delayed because they had been overseas attending an international meeting concerning the repatriation of indigenous remains.

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

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

That finding also accords with commonsense. We all have an instinct that it is harmful to children to remove them from their parents. It was based on extensive evidence concerning the work of John Bowlby in the early 1950s, which showed that it is intrinsically harmful to remove a child from his or her parents, in particular when this occurs after nine months of age.

The harm of which the Prime Minister spoke when he said ‘sorry’ was harm which Governments knew in advance would result from their conduct.

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

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

After a hard-fought trial, the Judge found in Bruce’s favour, and awarded him a total of $800,000 plus costs.

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

Second, litigation against a Government is not for the fainthearted. Governments fight hard. It took Bruce’s case eight years to get to court, and the trial ran from November 2005 to April 2006. If he had lost the case, Bruce would have been ruined by an order to pay the Government’s legal costs.

The third thing to note about Bruce’s case is that the same facts would not necessarily have produced the same result in other States. The legislation concerning aborigines was not uniform in all the States and Territories.

The Prime Minister’s apology makes no difference whatever to whether or not Governments face legal liability for removing aboriginal children. But it acknowledges for the first time that a great moral wrong was done, and it acknowledges the damage which that caused. The most elementary instinct for justice tells us that when harm is inflicted by acts which are morally wrong, then there is a moral, if not a legal, responsibility to answer for the damage caused. To acknowledge the wrong and the damage and to deny compensation is simply unjust.

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

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

(a) removed for demonstrably good welfare reasons;

(b) removed with the informed consent of the parents;

(c) removed without welfare justification but survived and flourished;

(d) removed without welfare justification but did not flourish.

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

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

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

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

Alienation – Alien Nation

[This is the text of my  Tim Costello Lecture, given on 18 September 2013.  A number of people have asked me to put it online]

 

I had a conversation with Tim Costello some years ago which significantly changed my way of seeing things.

He told me of a time when he was running the Collins St Baptist Church. A guy who had been sleeping rough for quite a while had turned up at the Church wanting a feed. Tim was talking to him. The guy said that that conversation was the first time in two weeks he had had eye contact with any other human being.

I can scarcely imagine what that must be like. That man had, at least in his own mind, completely disappeared.

I have thought about that conversation often. The idea of such alienation haunts me. But there are many people in our society who have, at least in their own minds, disappeared. These are the people who, because of mental health problems, or simple bad luck, find themselves nursing a grievance that no-one wants to hear about. The more they complain, the more they are ignored; the more they are ignored, the louder they complain. The louder they complain, the more they are avoided, viewed with suspicion. And once that cycle sets in, their problems become more and more real to them, less and less real to those around them.

These are the people who ring late night talk-back radio and harangue the host until even the panel operators know to filter them out. They are the new outcasts.

My conversation with Tim came in useful during the first round of Australia’s recent panic about asylum seekers. Between 2001 and about 2006, a lot of Australians were persuaded to be anxious about boat people arriving here. After all, the Howard government had told us they were illegals; that they had thrown their children into the sea; that they had jumped a queue somewhere. And the struggle to prevent the country from being swamped by this tide of potential terrorists was paraded as “border protection”.

Howard recognised that there were votes to be taken from One Nation if only he could make us fear the alien horde and position himself as our protector. It worked.

There is a story that I have on fair authority which shows clearly what was going on. Howard was about to enter the House of Representatives to deliver his speech explaining the government’s response to the Tampa. Jackie Kelly approached him in the lobby. She said that a lot of her constituents were deserting to One Nation. Howard waved his speech in front of her and said “Don’t worry – this will fix it”. As most people thought at the time, the government’s response to the Tampa was purely political. Of course, Howard had a great run of good luck in 2001. His government refused to let the Tampa put its bedraggled cargo of rescued Hazaras ashore on Christmas Island; he cobbled together the Pacific Solution while the court case about Tampa continued. The judgment at first instance in the Tampa case was handed down at 2.15 Eastern Standard Time, on September 11, 2001. The result was not noticed in the newspapers next morning, because a group of Islamic extremists had attacked America.

From that moment, there were no terrorists, but Muslim terrorists; there were no boat people but Muslim boat people and, although it was never clearly stated, all boat people were suspected terrorists – our worst nightmare. For those who did not see through the political opportunism, boat people were aliens to be feared.

Of course, if the true facts were understood, our response would have seemed rather odd. it did not suit the politicians to acknowledge that boat people were not illegal, that there was no queue, that they had not thrown their children overboard, and that they were trying to escape the same extremists we were so frightened of.

For my sins, I became involved in the issue. I was regularly asked to speak, at public events and private, about asylum seekers. It seemed to me that the key to the problem was to explain the facts. Naively I thought that most Australians would recoil at the idea of wilfully mistreating men, women and children who had done nothing wrong but try to escape to safety.

A couple of unexpected things happened. First, I got a few death threats. It surprised me that, having done a few pretty contentious cases in my career, I should receive death threats for going to court pro bono on behalf of people who were, self-evidently, voiceless and powerless.

And whenever I was quoted in the media saying something outrageous like “It is wrong to imprison innocent children and drive them to suicide”, I would receive a torrent of hate mail.

The anger and intensity of the hate mail astonished me then, and it still does. It struck me as remarkable that people would write to a complete stranger in such bluntly abusive terms. And the mail I got was seriously, vigorously abusive. (For a few examples I have received in the past few days, see the Appendix).

Since I had set myself the goal of converting all of Australia to understanding the facts, I decided to answer all the hate mail. After all, these people had self-identified as disagreeing with my views. My reasoning, flawed as it looks now, was that if only the people who disagreed with me could understand the facts, then they would come around to my way of seeing things. If enough people changed their views, the government policy would have to change. Clearly I did not know what I was dealing with.

Still, I resolved to answer all the mail I could. Mail that came by post was impossible to answer because, as a rule, people who use the postal service are a forgetful lot who did not include a name or address. But most of it came by email and, even if I did not know the sender’s identity, I could respond by simply hitting the reply button.

I sat up late at night answering emails: thousands of them, mostly abusive. Some of them all in capitals; lots of exclamation marks and lots of very rude words. I am no shrinking violet, but I was astonished by the rudeness of many of the emails I got. Unpopularity brings strange rewards.

Since their complaints fell into a few recognisable patterns, I had a few standard responses. Typically I would grit my teeth and say something like “Thank you for your email. I gather you do not agree with me. But did you realise that … “ they do not break any law by coming here asking for protection; there is no queue… etc

If I was surprised by the rudeness and vehemence of most of the emails, what followed was even more astonishing. Nearly all of them responded to my reply…and every response was polite. The responses fell into a few patterns, but typically they said “thank you for answering me, I did not expect to hear from you. The facts you sent me are all very well, but …” and then they would set out other objections. I replied with more facts to answer those objections.

Over the course of thousands of bits of hate mail, I estimate that about 50% ended up saying, in substance “Thank you for discussing this issue with me. I agree with you now”; and about 25% ended up saying, in substance “Thank you for discussing this issue with me. I don’t agree with you, but it is good that you stand up for what you believe”. The other 25% remained entirely unconvinced and, I assume, continued to vote for Mr Howard.

What struck me in all this was the story Tim had told me. I guessed that the people who wrote to me – and who did not expect a reply – were so alienated from the community that their only means of expressing their anger and fear and resentment and confusion was by writing to someone mildly prominent.

It occurred to me then that the passion which drove their initial hostility was the mark of people who were alienated from the community: they were accustomed to being ignored, so they fall to shouting abuse as a way of getting attention. Just once listen to them, and they quickly fall back to observing the ordinary rules of civil behaviour.

This is not just an argument for good manners: I think it goes much deeper. Too many people in our community feel alienated from it and that alienation is unstable: it tends not to self-correct, but to amplify itself.

We are a prosperous country: most of us are genuinely lucky. But we are not good at sharing our luck, and we have a strange habit of thinking that those who are less lucky must be, in some way, responsible for their own misfortunes.

There are many reasons why members of the community become alienated from it. They may have been dealt a bad hand: they have been born poor, they have been badly educated, they have a mental or physical disability, they have bad luck in employment, they make bad choices which lead them into a hopeless life. Any one of these disadvantages can lead to a cascade of events which leave a person at the bottom of the pile. And when compassion turns to vindictiveness these people suffer twice for the disadvantages they could not avoid.

Because everyone, it seems, knows my name, address and occupation I get a lot of unsolicited requests for pro bono help. It has been interesting, not to say distressing, to see the sort of troubles that plague people in our community. I get a large number of requests for help. I make it clear that all I can do is offer pro bono advice. I have a group of talented interns who help me deal with the problems.

What is distressing is that the majority of people who write to me this way do not in fact have a recognisable legal or human rights problem. Typically they are people who have had some bad luck, have made some bad choices, and find themselves trapped in a spiral of disadvantage, distress, unemployment and mental instability. At that point, anything that looks like a legal or human rights problem prompts them to reach out for help. I imagine that medical clinics have a similar experience.

When I write to them with further questions, or with advice about what to do, it usually becomes clear that they have already been to just about every imaginable place for help: Legal Aid, a Community Legal Centre, government departments, their local doctor or MP. No-one can help them, because they have no single, clear problem apart from the fact that they feel alienated from everything. Part of their distress is caused by feeling so isolated.

The most distressed, and distressing, group are people who are probably paranoid schizophrenics. One person who writes to me quite often is convinced that the police, and other government agencies, are spying on him all the time and that they have a secret control order against him. He is intelligent and well-educated. He sends video footage of ordinary street scenes, at the traffic lights, in shopping centres, in suburban streets and he asserts (and no doubt believes) that various people captured on his videos are in fact plain clothes operatives – stalking him, watching him, keeping him in a kind of open prison. He points out, rationally enough, that such conduct is a serious breach of his human rights. And if the innocuous scenes he sent showed what he sees, he would be right. But they do not show what he sees. They prove nothing at all. He insists that the Commonwealth government have a secret control order against him: but he can offer no explanation how a control order can work, if it is kept secret from everyone.

The difficulty with people like this man is that they cannot be convinced that their view of the facts does not line up with reality. And it is hard for a lawyer to tell a would-be client that he needs psychiatric help.

The end result is that people like him get pushed from pillar to post but rarely if ever get the help they actually need.

There are only a couple of bright spots in this dismal tale.

The first concerns a lady who turned up in my chambers one lunchtime, quite distressed and wanting to see me. We chatted for a bit, but the long and short of it was that she had been receiving treatment for paranoid schizophrenia, her treatment had been interrupted; she became convinced that her treating doctor was trying to kill her with the medications he had prescribed, so she decided not to take it any more. She wanted me to take possession of the diary she had been keeping because she was confident that she would soon be killed and she wanted me to have the evidence which would identify the guilty party.

We spoke for some time. Somehow I managed to persuade her to go to a new doctor – someone who could not possibly know or conspire with her treating doctor – and agree to take whatever medication he prescribed. In the meantime I would protect her diary.

About two months later she turned up again. She had been to another doctor. She had taken the medication he prescribed. She was feeling a lot better, and realised that she had misjudged her original doctor. In the circumstances, she did not need me to look after her diary any more.

How odd that one of my few successes in the field of human rights should result from a modicum of medical knowledge and a bit of common sense.

The second bright spot is this. Most of the people who write asking for pro bono help have simply not got a legal problem. While they may have had a genuine legal problem in the past, typically it is buried in history and statute barred years or decades before. The real problem is that their lives have gone off track, and they no longer feel any connection to the society which has let them down so badly. A surprising number of these people seem to benefit from having their problem taken seriously, from getting a written advice in response to their letter, or from being listened to for half an hour.

It is a powerful reminder of just what great work the Community Legal Centres do. Underfunded and under resourced, they exist in order to help people deal with legal problems, but in many cases the real help they give lies in the fact that they extend the simple dignity of listening to a person’s distress. They help rescue the alienated. I am hugely impressed with Community Legal Centres. They deserve to be better funded and better recognised for the work they do.

Of course, there are plenty of people in the community who have genuine legal problems who cannot afford legal representation. People who face minor criminal charges but cannot afford a lawyer; people who have a good civil claim to make, or a good defence to a civil claim brought against them, and cannot afford legal representation.

Access to Justice is a cornerstone of any democracy. Access to Justice must include the right to participate meaningfully in the legal system.

The legal system in Australia is an adversary system: competing parties advance evidence and arguments, and the Court sits as an impartial umpire to decide the dispute. The adversary system assumes that both parties are competently represented: that is its most basic assumption. If that assumption fails, the system fails. Our system struggles to work properly when one party is unrepresented. But litigation is expensive, and many people can’t afford it.

Legal Aid is the government’s way of making good the political promise of Access to Justice, but Legal Aid is already underfunded, and cuts to Legal Aid guarantee that for many people Access to Justice is nothing but a political slogan.

The Government is spending increasing amounts on police and Public Safety Officers. Their increased numbers result in more citizens being brought before Courts. Those people need legal representation, but the Government refuses to fund Legal Aid properly.

Thousands of self-represented litigants come before Courts every year. This imposes unreasonable strains on Judges, and it makes cases longer and more difficult than they should be. It often leads to mistakes. 25% of all appeals involve unrepresented litigants. It wastes vast amounts of judicial and other resources.

People who face a court unrepresented suffer an immediate disadvantage. Only by good luck will they get the result they might have got if they had been represented. And even assuming the court reaches the right decision it is likely that the unrepresented litigant will have understood almost nothing of the process and will leave with a rankling sense of injustice. With some justification, those people will leave court feeling that the system is not working, at least not for them. They become aliens in their own land.

But they are not alone.

Since 2001, Australian politicians have won electoral popularity by taking a tough line on asylum seekers.

During the past 15 years, asylum seekers were somehow hoisted to a position of public hatred which made it politically possible for the Howard government to treat them with increasing harshness, and made it politically necessary for Mr Beasley’s Labor opposition to support these measures. Without any protest from the press or the public, the Howard government succeeded in establishing, in the courts, that the central elements of its deterrent policy were legally valid.

Not enough people know the case of Ahmed al Kateb. He came to Australia and sought asylum in late 2000 or thereabouts. He applied for a visa and was refused. He found conditions in Woomera so intolerable that he asked to be removed from Australia. Eighteen months later he was still here because, being a stateless Palestinian, there was no country where he was entitled to be and no country was willing to receive him.

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

They had not allowed for the anomalous case of stateless people. You might think that a government which had paraded itself virtuously as committed to family values and a fair and decent society, might quickly amend the law to account for these few anomalous cases. But what the government did, in fact, was to argue all the way to the High Court that al Kateb, even though he has committed no offence in Australia, can be held in detention for the rest of his life. The High Court agreed.

Parallel with the al Kateb case was the case of Behrooz. That case tested this question: if the conditions in detention are as harsh as human ingenuity can devise, does the harshness make any difference to the lawfulness of that detention. The answer is No.

Al Kateb and Behrooz were decided together in 2004. Between them, they stand for the miserable proposition that indefinite detention, even for life in the worst conditions imaginable, is lawful. A third case decided that year held that the provisions apply equally to children.

The Rudd government in 2008 introduced significant changes in the treatment of asylum seekers. They were welcomed by those of us who felt that the values of the nation had been betrayed by the Howard government. In retrospect, it may be that Rudd could afford to be nice to asylum seekers because none were arriving. Things changed in 2009, after Mr Abbott had won leadership of the Coalition and started talking tough about asylum seekers.

The recent election saw the major political parties engaged in a competition to outdo each other in their promises to mistreat boat people. The theory is that this will deter others from seeking protection here.

Promising to treat innocent people badly is not usually a vote-winner. In most cases it would be seen as a mark of depravity.

But the argument starts at the wrong place. It starts with the Coalition’s oft-repeated statement that boat people are “illegals”. It starts from the language of “border protection” and “queue-jumping”: language calculated to make the public think boat people are undesirables, people to be feared, people we need to be protected from.

The fact is that boat people do not break any law by coming here the way they do. Over the past 15 years, 90% of them have ultimately been assessed as refugees entitled to our protection. Their arrival rate over the last 12 months has been much higher than the historic average, but even now it represents only four weeks’ ordinary population growth. While an estimated 25,000 boat people arrived in Australia in the 12 months to 30 June 2013, we received 168,685 new permanent migrants and over six million visitors came to our shores in the year ended December 2012. Boat people do not present a demographic problem for Australia.

Spooked by tabloid scare-mongering, both major parties have chosen deterrent policies; treat them harshly, push them off to small, impoverished Pacific neighbours. The low point of this is the recent Coalition promise to bring in the military to deal with the “emergency”.

The spectacular cost of these measures passes without complaint because it is seen as a kind of protection. While it is difficult to separate out the various components of the cost, indefinite detention costs, on average, around A$160,000 per person per year as of 2011-12. The actual cost varies: metropolitan detention is cheapest. It gets more and more expensive as the place of detention is more remote. On current estimates, we will spend about $4 billion each year brutalising people who have committed no offence and have done nothing worse that ask for protection.

It is not easy to understand how this has happened. Those of us who think Australia is better than its behaviour suggests now feel like aliens in our own land: bewildered at how quickly the country has lost its moral bearings.

Australia has constructed a myth about itself which cannot survive unless we forget a number of painful truths. We draw a veil of comforting amnesia over anything which contradicts our self-image.

We forget that boat people who come here to ask for protection are not illegal in any sense – they are exercising the right which every person has in international law to seek asylum in any country they can reach.

We forget that the greatest number of unauthorized boats to arrive in a single day got here on 26 January 1788.

We forget that the first white settlers in this country were true illegals: sent here by English courts for a range of criminal offences, and the soldiers sent to guard them, and the administrators who, following London’s instructions, stole the country from its original inhabitants who, if possession is nine points of the law, had the backing of 40,000 years of law to justify calling the white invaders “illegals”.

And we forget, too, the line in the second verse of our national anthem. For those who come across the sea there truly are boundless plains to share. For refugees locked away in remote detention centres, that line must cast light on the frontier which delusion shares with hypocrisy.

We forget how different it was for 85,000 Vietnamese boat people 30 years ago? They were resettled here swiftly and without fuss, thanks to the simple human decency which Malcolm Fraser and Gough Whitlam showed, and which Abbott and Rudd so conspicuously lack. We forget how hideously we scarred Vietnam; how we showered them with Agent Orange and trashed their villages and disfigured their people. Just as we forget the effects of our collaboration in Iraq. But if we knew back then why people flee the land of their birth, we seem to have forgotten it now.

When today’s refugees wash up on our shores, politicians speak with concern about the boat people who die in their attempt to get to safety. But their concern is utterly false. Instead of attacking the refugees directly, which is their real purpose, they attack the people smugglers instead. Because, aren’t people smugglers the worst people imaginable, the “scum of the earth”? They forget that Oskar Schindler was a people smuggler, and so was Dietrich Bonhoeffer. And so was Gustav Schroeder, captain of the ill-fated MS St Louis which left Hamburg in May 1939 with a cargo of 900 Jews looking for help. He tried every trick in the book to land them somewhere safe, but was pushed away. He ended up putting them ashore again in Europe, and more than half of them perished in concentration camps. Captain Schroeder was a people smuggler, but was also a hero and if the world had not been so harsh he would have been a saviour.

And we forget that, without the help of people smugglers, refugees are left to face persecution or death at the hands of whatever tyranny threatens them. Let Rudd or Abbott say publicly that, in the same circumstances, they would not use a people smuggler if they had to.

Many recent boat people are Hazaras from Afghanistan. They are targeted ruthlessly by the Taliban, who are bent on ethnic cleansing. The Hazara population of Afghanistan has fallen dramatically over the past decade, as Hazaras escape or are killed. The Taliban want to get rid of all of them. We have forgotten that we are locked in mortal combat with the Taliban. When our troops pull out of Afghanistan at the end of this year, the Taliban will declare open season on Hazaras. It will be a bloodbath, and some Hazaras will end up seeking protection here. How will we respond? Coldly, it seems.

So here we are: Australia in 2013. We have forgotten our origins and our good fortune, we are blind to our own selfishness. In place of memory we cling to a national myth of a generous, welcoming country, a land of new arrivals where everyone gets a fair go; a myth in which vanity fills the emptiness where the truth was forgotten.

During the election campaign, many of us watched aghast as both major parties promised mistreatment so harsh that it would act as a deterrent; mistreatment so unpleasant that it would seem more attractive to stay home and face down the Taliban rather than flee for safety.

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

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

But some of us remember how things once were, some of us see how things could be.

And we grieve: aliens in our own land.

————————————-

Appendix
A few examples of abusive emails from the past week:

Burnside…….Christ you’re a dumb fuck, dumber than dogshit, how the fuck did you ever attain a law degree?, you either printed the certificate yourself or subscribed to one of those correspondence courses from Somalia land or some equivalent dump.

Burnside……..your performance ………. warrants you being certified a fucking lunatic, your diaTRIPE concerning ILLEGAL asylum seekers yet again with your condescending manner has you vilified by the majority of all Australians.

Its bullshit mate, these gate crashers need to be stopped. Let the poor people who have been lined up in refugee camps for years in here first. At least they want to work & they appreciate us & our country.
As for Tasmania, don’t be so bloody stupid. How about the Tasmanians? They don’t want all the rubbish dumped there.
How about you put a couple of young Afghani single gate crashers in your house for a month, see how your attitude changes then.

You are a dead set FUCKWIT

Don,t you just love do gooders and bleeding hearts with their own agendas. Send all the illegals back to their own countries……..and save all the hassle.