“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?