Michael Kirby Oration 3 July 2010

PRINCIPLES, PRAGMATISM AND POLITICS

Julian Burnside

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We reflect on their past mistreatment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Are We There Yet?

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

Are We There Yet?  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The answer depends on where you trying to go.

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

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

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

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

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

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

They challenged our view of ourselves.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then things got worse.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Liberal won the election. Australia lost.

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

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

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

Peter Slipper is still facing criminal charges for much less.

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

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

It is a lie.

Scott Morrison and Tony Abbott know it is a lie.

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

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

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

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

So here’s the problem.

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

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

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

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

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

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

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

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

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

What are we running from? No one can say.

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

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

We know where those paths lead.

Are we there yet? Not yet. Not quite.

It is not too late to turn back.

Julian Burnside

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.

An index to this blog (alphabetical order)

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