Events
PROTECTING RIGHTS IN A CLIMATE OF FEAR
Equal Opportunity Commission
Annual Oration, 13 December 2006
Julian Burnside
In a climate of fear, protection of human rights becomes extraordinarily difficult. It brings to the forefront the tension between the majoritarian principle of democratic rule and the humanitarian principle of protecting the powerless and marginalised. In that setting, protection of human rights presents its greatest challenges.
The maintenance of civil liberties depends on the delicate balance between the government' s authority and its self-restraint. That balance will be compromised if any of three conditions are satisfied. The first is when the political opposition is either weak or absent. The second is when the press is weak or compliant. And the third.is when the life of the nation is at risk from civil disturbance or external threat (whether real or imagined). The first two conditions have existed in Australia in varying degrees for a decade. The third was delivered on September 11, 2001.
The terrorist attack on the United States was shocking. It transfixed the world as the Twin Towers exploded and collapsed in a giant cloud. The nightmare image of the second plane finding its target may be the defining image of this new century.
The response of western governments to September 11 might be the defining characteristic of the 21st century.
The protection of human rights depends on a number of things. First, Parliament must exercise restraint in legislating where human rights are affected. They should recognize that human rights are a basic assumption in democratic systems, and that majoritarian rule does not justify the mistreatment of unpopular minorities.
In the wake of September 11, ASIO' s powers have been greatly increased. They now have power to hold a person incommunicado for a week, and force them to answer questions on pain of 5 years' jail. The person need not be suspected of any offence.
The Federal Police now have power to obtain a secret order jailing a person for up to a fortnight, without a trial and without the person having committed any offence. They can obtain a secret control order, placing a person under house arrest for up to 12 months without access to telephone or internet. In each case, the person affected by the order is not allowed to know the evidence against them. These laws betray the most fundamental assumptions of a democratic society.
The protection of human rights also depends on the executive showing restraint and decency in administering laws which have the potential to affect human rights. In this, the Howard Government has a miserable record, a record made all the worse by their hypocritical maundering about ' family values' and a ' fair go' .
The idea of a fair go was nowhere to be seen when Mr Ruddock instructed the Department of Immigration to argue the case of Al Kateb. Mr Al Kateb had arrived in Australia seeking asylum. He was held in immigration detention. He was refused a protection visa. He asked to be removed from Australia, because he found the Woomera detention centre unbearable. Unfortunately, he could not be removed because he is stateless - there is no country in the world to which he could be returned. The Migration Act provides that a person who comes to Australia without a visa must be detained and must remain in detention until they get a visa or until they are removed from Australia. This is the mandatory detention regime. People held in detention have not committed any offence, they are held in high security jails because an Act of Parliament orders it.
What of Mr Al Kateb? They refused him a visa, but could not remove him from Australia. The 'fair go' Howard Government argued that Mr Al Kateb could be held in detention for the rest of his life if necessary. That argument was found by the High Court to be legally correct and constitutionally valid.
It is deeply shocking that any Government in a Western democracy is prepared to argue for the right to jail a person for life without trial, and without suspicion of any offence. If nothing else about the Howard Government is remembered, let it always be remembered that they argued for the right to jail an innocent person for life.
Family values cannot be reconciled with the indefinite detention of refugee families in conditions which drive children to attempt suicide.
ASIO has vast powers and seeks, wherever possible, to avoid any scrutiny of its activity by Courts. Mahommad Sagar has been held on Nauru by Australia for 5 years, even though Australian officials accept that he is a refugee. He has been adversely assessed by ASIO, and they refuse to tell him why. They argue that they should not have to reveal to him - or to anyone - what facts they took into account in deciding to assess him adversely.
The protection of human rights also depends on the public remaining aware of the importance of human rights to the health of our democracy. It is easy to support the idea of human rights for ourselves, our family and friends, our neighbours and so on. It is less easy to stand up for the rights of the unpopular, the marginal, those we fear or hate.
Public sentiment about locking up innocent men, women and children in detention centres has shifted over the past few years. But the trigger for change was the revelation that Cornelia Rau had been wrongfully held in detention for about a year. Public outrage seemed to reflect the perception that she was one of 'us', not one of 'them'. Her rights mattered but, by implication, the rights of the others in detention did not.
Mr Ruddock made himself popular during the 2001 election campaign by vilifying refugees. He created a climate in which they were seen - quite wrongly - as a threat to the community. When Howard and Ruddock lied about the so-called children overboard affair, when they used the language of 'border protection' to justify the Pacific Solution, they created a climate in which the public were able to think that asylum seekers were people whose human rights did not count if we wanted to stay safe.
That sort of thinking - so easily influenced by Governments - is profoundly dangerous to the cause of human rights.
The Howard government has abandoned David Hicks. Several things are clear about the Hicks case. First, he is not alleged to have hurt anyone at all. Second, he has not broken the law of Australia, USA or Afghanistan. Third, the most serious allegation against him is that, fighting with the Taliban (then the lawful government of Afghanistan) he pointed a gun in the direction of an invading force, as the American troops were. It is not alleged that he fired at them. Fourth, he has spent five years in Guantanamo Bay, mostly in solitary confinement.. Fifth, the treatment he has been subjected to in Guantanamo breaches the Geneva Convention concerning the treatment of prisoners of war and it breaches Australian and US standards for the treatment of criminal suspects.
Hicks now faces the prospect of a trial in front of a military tribunal which even the prosecutors have acknowledged will not be a fair trial. Howard, Ruddock and Downer remain supremely unconcerned about Hicks' fate. They have done nothing at all to help him.
The conduct of the Howard government is impossible to reconcile with the values and assumptions which are basic to our democratic system. By creating or exploiting a climate of fear, the government has greatly expanded its own powers at the cost of individual rights and freedoms. By inducing a state of fear, the government has been able to engage in terrible abuses of human rights which would not otherwise be tolerated, but they pass without complaint as 'border protection' or the war on terror.
The basic values of our democracy, so hard won, are always at risk. In a speech in Boston on 28 January 1852 Wendell Phillips said:
'Eternal vigilance is the price of liberty - power is ever stealing from the many to the few' . The hand entrusted with power becomes the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot ??
He might have been speaking of the Howard government.
The Victorian government has begun a move in the opposite direction by passing the The Charter of Human Rights and Responsibilities. Whilst the Charter cannot affect Federal laws, it serves as a timely reminder that human rights are fundamental. The Charter will affect the way legislators and bureaucrats go about their work; it will give the Courts the power to identify legislation which breaches basic human rights and have the Parliament consider whether it wishes to persist in those breaches. Its most powerful effect is that it puts the assumption of human rights to the forefront: they will no longer be an optional extra. In addition, it serves as an important reminder that human rights are for all people, not just our friends and family. The unpopular, the unworthy, the feared and despised are also entitled to be treated as human beings, because they are.
What is needed however is a Federal Charter of Rights. The major human rights abuses in Australia are committed by the Federal government: indefinite detention of asylum seekers, even though they have committed no offence; secret gaol orders; secret control orders; secret hearings in which a person' s fate can be blighted forever.
In December 2004 the House of Lords decided a case concerning UK anti-terrorist laws which allow terror suspects to be held without trial indefinitely. By a majority of 8 to 1 they held that the law impermissibly breached the democratic right to liberty.
Lord Hoffman said:
' The real threat to the life of the nation comes not from terrorism but from laws such as these.'
The Law Lords recognised what the public have forgotten: that human rights exist for the protection of everyone, and in doing so they also protect our basic values. When Howard or his ministers murmur comforting words about values, they are lying. The case of Mr al Kateb, and David Hicks; the treatment of Cornelia Rau and the victims of the Pacific Solution and the hundreds of refugee children in detention camps: all these things tell you what sort of people Howard and his ministers are. If they can mistreat one unpopular group, they will mistreat another, and another. Do not wait until it is your turn. Human rights matter, especially in a climate of fear.
