2008 – Do We Need A Bill Of Rights?

Do We Need A Bill Of Rights?

by

Julian Burnside QC

This year the 10th of December marks the 60th anniversary of the entry into force of the Universal Declaration of Human Rights. It’s got a nice resonance to it so it’s a good time for us to be thinking about implementing a bill of rights for Australia.

When I say do we need a bill of rights I’m really talking about whether we need a bill of rights at the federal level but you can take it for granted that includes an equivalent argument for a bill of rights in the states and territories. I’m sure that most of you know that the ACT already has a bill of rights in the human rights act that has been in place for four years and Victoria has its charter of human of rights and responsibilities act which has been in force for two years.

Now can I just remind you of the setting in which the question arises, because it is true to say that even taking into account the wretchedness of the conduct of the Howard government over recent years, even allowing for that, our Human rights record in Australia is not nearly as bad as we have seen recently in Burma, in Pakistan, in Rawanda, in Sudan and so on and so on. It is not as if we are dealing with a chronic case and it is very easy for us to lapse into the thought that after all we don’t really need a bill of rights, because we are not like those other countries.

But can I remind you of the genesis of modern Human Rights thinking and that is of course in the immediate aftermath of the Second World War. As the American forces moved through Europe and liberated the death camps, in particular Belsen, incidentally, it is Auschwitz that stands forth in popular memory it was Belsen that was first opened and created the resonant image in the mind of the public across the world, of what had been going on. Those images and the facts of what had been happening struck people with such force that Eleanor Roosevelt determined that she would try and agitate for a recognition of basic human rights and so she and many others got together and formed the Universal Declaration.

The preamble is worth remembering given the setting in which the Declaration was crafted. Two paragraphs of the Preamble read

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law

And so it goes on. The key point is that human rights should be protected by the rule of law.

Now Australia was at the forefront of the campaign to introduce the Universal Declaration of Human Rights and it’s a matter of some pride that it was an Australian Dr Evatt who presided over the General Assembly on the 10th of December 1948 when the Universal declaration entered into force. Australia had been advocating the position that the rights declared aught to be legally enforceable. We didn’t have it our way, rather a pity in retrospect. But of course by signing the declaration, as a nation we embraced the ideals that the declaration contains and we also agreed with the other countries of the world, that we would implement legal protection of these rights in our domestic legal system.

The important thing to bear in mind and the question which I got very often during the last 7 or 8 years in connection to refugee issues, is why can’t we prosecute the government under the Universal Declaration of Human rights or why can’t we take the government to court under the covenant on the rights of the child or the international covenant on the civil and political rights. A very attractive idea but it doesn’t work and the reason that it doesn’t work is this: when Australia signs a treaty of any sort, the next step is that parliament ratifies the signing, so it is an executive act, it’s an act of the executive government to sign the document. The parliament then formally ratifies the signing so that the sighing binds the country formally but it doesn’t become part of Australian domestic law unless the parliament passes an act which expressly adopts part of Australian law. So until that happens it’s just a nice idea that we as a country have agreed to.

Now we have not implemented in our domestic law, the genocide convention, the international covenant on the civil and political rights, the statute of Rome, the convention on the rights of the child, or the universal declaration of Human Rights. I should qualify that in two respects. Genocide which was declared to be a Universal crime in the 1951 convention, which we signed, and Parliament ratified the signing. Genocide remained outside the Australian domestic legal system until 2002 when on the eve of joining the international criminal court we were required to introduce into Australian Domestic Law offences of the same sort which were within the jurisdiction of the international criminal court so offences created by the statute of Rome had to be introduced into Australian Domestic Law. So all of a sudden in October 2002 we recognise Genocide as an offence, a little bit late perhaps, but better late than never. But it gives you a clear illustration of the problem. We sign a treaty in good faith but it doesn’t come into affect under Domestic Law actively at all.

So we haven’t introduced a Bill of Human Rights into Australian Domestic Law except in the two jurisdiction that I referred to. Can I mention at the beginning, another caution that you need to bear in mind, in relation to human rights, this is difficult with Human Rights. Everyone says that Human rights is a good idea, it’s just the way they behave themselves that contradicts what they say. Hypocrisy is deeply riddled through the whole area of Human Rights. Perhaps the clearest indication of that and maybe appropriate symmetry with that is at the same time the Universal Declaration was being framed, at the same time the American were putting together a much more dark and secret deal.

It was a deal with the scientists and doctors that run 731. 731 was a medical scientific experimental centre, set up by the Japanese in Harbin North China shortly after Nanking was taken. In unit 731 the Japanese performed medical experiments every bit as of frightful as those performed by Dr Mengele in Auschwitz. Their experiments included things like aerial spray of villages with anthrax spores and other toxins in order to watch the spread of the contagion. It included freezing people to death in order to watch the changes to their cells, it included injecting live human subjects with various poisons and then dissecting them whilst they were still alive in order to watch the physical effects of the poisons and perhaps the worst extreme was the dissection alive of pregnant women in order to watch the effect on the developing foetus. Whilst the Universal Declaration of human rights was being framed the Americans did a deal with scientists and doctors that ran unit 731 giving them immunity from prosecution in exchange for the products of their research. And that’s why almost no-one has ever heard of unit 731, because, it disappeared without trace under the cloak of American provided immunity. It was the shabbiest transaction imaginable and the fact that it could be done by the nation that was pushing the universal declaration of human rights is beyond belief but it is true.

Some people argue against the bill of rights in Australia on the simple proposition that we don’t need one, that we don’t have governments that do the things that a bills of rights is designed to prevent. I confess that I used to be of that school myself. Perhaps I hadn’t thought enough about it. But at least the last decade proves that this thinking is wrong. It’s a fair argument also that looking back at the stolen generation also proves that that was wrong.

I want to tell you briefly about the one stolen generation case that I have been involve with because when I learned the facts at close quarters and met the person involved, and went to the trial court with him every day for months I began to see the reality of what the stolen generation was about, or at least one aspect of it and it was not like anything I had expected.

Bruce Trevorrow was born in 1956 at One Mile camp Maningee. One Mile camp Maningee is one mile outside Maningee on the Curo in South Australia, I’ve been to Maningee and even now it is a one horse town, but what it was like in 1956 I can’t imagine. They lived in One Mile camp because it was illegal for aborigines to live closer than one mile to a place of white settlement, except for Perth. So they lived just one mile outside the town boundaries and Bruce lived with his parents in a humpy made out of old flattened out oil drums and sacking. When he was 13 months old he got gastroenteritis. A neighbour took him up to the hospital in Adelaide, the records show that he was admitted on Christmas Day 1957, was diagnosed with Gastro, was treated and got better with neighbour and a week after that was discharged into the care of a white middle class family in Adelaide. The daughter of that family, who had been 16 or 17 at the time, gave evidence at the trial, she remembers it very clearly because her mother had always wanted a second daughter. They had seen this advert that was offering Aboriginal Babies for fostering, they go along, they go to the hospital and choose a nice curly headed girl and said they would take her, and they took her home. It was as simple as that. The baby was handed over simply for the asking. When they got her home and changed their nappy they discovered that she was a boy. That’s how Bruce was given away. When Bruce’s mother managed to get pen and paper and a stamp and write to the department asked about him. She wrote and said, “I haven’t forgotten I have a boy in the hospital there, when is he coming home and how is he doing? They wrote back saying, “He’s doing OK but the doctors say that he is not well enough to come home yet.” But they had already given him away. The records also include a document written two years earlier by the crown solicitor of South Australia, saying that the department did not have legal power to take Aboriginal Children away from their parents. They acted illegally, knowing it was illegal, they lied to the mother about it, and they simply handed him over, to a foster family, with not so much as a piece of paper, by way of formality. Now reflect for a moment how society would have responded in 1958, or now if white babies were given away with the same carelessness. When Bruce’s case went to trial all of these facts came out, members of the press came along from time to time, I can only recall one article being written about it. The fact that a baby had been given away in those circumstances did not create a ripple, yet if it had been a white baby, people would be up in arms. I think that there is a very important point to draw from this, which is that in Australia, if you asked whether Human Rights Matter, they would say, Yes of course Human Rights Matter, but if you then interrogate them in order to find out why they don’t care about Bruce or about other innocents of the stolen generation, why they don’t care about men, women and children all innocent of any offence being put behind razor wire for years on end in immigration detention centres, when you ask them why that is OK you learn is well it is my human rights that matter it is my family and friends human rights that matter but people that don’t matter to us, well they’re different. Their Human Rights stand in a different position, which really means that they are not quite human in the same way we are. Unbelievably dangerous thinking. It is extraordinary dangerous ever to move to this position that implicitly you think that some human beings are less human than you are. The point about Human Rights thinking is this that they are rights given because you are human, not because you are nice, nor because you are white, not because you are well off, not because you are here but because you are human. It’s surprisingly difficult to get people to grasp the full implications of that idea. Bruce, didn’t do very well. When he was 3 years old he was admitted to the children’s hospital because as the records noted he was pulling his own hair out. Anyone with an infant will recognise the distress which that reflects. When he was 8 he was seen by the child guidence clinic. He was diagnosed as profoundly depressed and anxious. They put him on antidepressants at the age of 8. They said that he appeared to have no sense of his own identity. His life did not work out very well. By the time he was 10 his behaviour was difficult and his foster mother, through the department arranged for his natural mother to meet him. For the first time, his natural mother who had never been able to meet him because the department had always deflected her inquiries. Eventually on this 10th birthday he was able to meet his natural mother and his foster mother arranged that he would go down to where his natural mother was living and spend Easter with his natural family. Note his father his died 6 month earlier, he never met his father. So the time came the department arrived, Bruce was put on the bus to go down to the farm where the natural family was living but after the bus had gone the foster mother said “I don’t want him back”. “He’s too much trouble”. So they posted his clothes and his toys out. That was the way the department handled an aboriginal baby, a boy who was too much trouble for his foster mother. It’s a scandalous story. It didn’t create a ripple.

Now not surprisingly this didn’t do a great deal of good for Bruce and he ended up in state care. In state care he became an alcoholic by the time he was 16 his drink of preference was methylated spirits mixed with orange juice, and if he couldn’t get that he would melt down boot polish for it’s alcoholic content. His life was characteristic of anyone who was an alcoholic in their teenage years, characterised by periods of unemployment, wretchedness, low level interaction with the police, time in jail, this and that, and so by the time he was 49 starting his trial, he was surprised at how nice the judge was to him. Agreeable surprised with the fact that the judge treated him like he was white. It really was like that. It was Bruce surprised because the judge was treating him as if he were a white person. What a tragedy that is – it took him to 2005 for Bruce to be treated like that. Anyway after a lengthy trial in which the state of South Australia took every conceivable defence, the judge, in a historic ruling found that the state had acted unlawfully, and knew that it acted unlawfully and awarded Bruce a total of $800,000 in damages. That writ came down on the first of August last year, and on the 20th June this year Bruce died, a little bit younger than the average male live expectancy for an aborigine. Again it’s a story that did not create even a ripple in white society beyond those that were directly concerned with aboriginal affairs. But I do suspect that if all this were translated into white actors the reactions would be very different. So perhaps we do have something to learn about Human Rights in Australia in the last 2 or three generations. And then there is the way we treat our asylum seekers, the wickedness of it really, begins with the fact that the whole exercise was so cynical in its origins. The way it works was that in 1996 when Pauline Hanson in Parliament, John Howard sat back and watched the popularity which she was able to evoke by scratching at matters of race – at catching that corner of the mind of many Australians that fears the outsider. A curious thing, over the years if you look at Australian history, you will see that there have been episodes, roughly once every generation, sometimes more often, when we go into a paroxysm of anxiety at being taken over by people arriving uninvited in little boats, and if you think about it, the only people who were entitled to think that way would be the aborigines. Maybe, maybe we recognise that and that’s the source of our anxiety. In any event Howard saw this as an opportunity to get elected, and he played it for all it was worth.

Very interesting to consider the fuss that John Howard made about boat people in comparison with what Malcolm Fraser had done in the second half of the seventies. In the second half of the seventies, Malcolm Fraser with his immigration minister Ian McFee, ushered into Australia with no fuss at all approximately 20,000 Chinese boat-people per year. Remember the number 20,000 per year. During Howard’s time he bought notice to, with a great deal of noise, boat people coming in primarily from Afghanistan, Iran, Iraq and to a lesser extent Sri Lanka at the rate of about 1,000 per year and look at the different reaction. Fraser shepherded much larger numbers into the community with no fuss. Howard made an enormous noise, suggesting they were illegals, queue jumpers and that they were going to swamp us. It was all utterly false. It galvanised society so that the hatred for boat people was almost beyond contradiction. That way the government could get away with treating them any way they liked. Let me tell you a story. A guy called Amin came from Iran with his daughter Masume They were at the Curtin detention centre initially and then transferred to Baxter. Baxter, the family friendly detention Centre Phillip Ruddock called it! It tells you something doesn’t it? It tells you something that how they work – that he could dream of saying that Baxter was a family friendly detection centre. At Baxter then I got hold of some plans of it a few months before it was open on stage with a lot of other people in South Australia and one of the people on the stage was Phillipa Couglin. Phillipa Couglin was then deputy minister for immigration in charge of department of immigration in charge of on-shore compliance, in other words lock-up. Now in front of the audience I asked why it was that the plan of the Baxter detention centre described an electric fence surrounding the entire area as a courtesy fence. I didn’t think it was very courteous. Without batting an eyelid she said it was not an electric fence which made me think that perhaps I had been misinformed. but she went on to say that it was an energiser fence. Seriously! this is a seriously smart woman, can you imagine bureaucrats willing to say that an electric fence is actually an energised courtesy fence. Breathtaking but it is true.

Anyway They were in the family friendly purpose built detention centre at Baxter on the 9th of July 2003 when a group of ACN guards came into their room and ordered Amin to take his clothes off, because he had a cigarette lighter,which which of course an innocent person should not have. He refused because his 7 year old daughter was in the room, so they flexi-cuffed him roughed him up a bit and dragged him off the the management unit. The management unit was way off, it was an enormous area, way off in a different part of the camp and off course the whole joint is electronically monitored, video monitored. We got hold of a video tape from the monitoring camera which was in Asim’s room and the exit that lead to the management centre. and that was the most tragic bit of footage because it showed this little 7 year old curly headed child, throwing herself on on the back of one of the guards trying to stop him from taking her father away. Anyway he ended up in management and the management unit in Baxter is a series of 13 purpose build solitary confinement cells, designed for and built for the Howard Government. 13 Solitary confinement cells each measuring 3.5 meters square, bare concrete walls and bare concrete floor and ceiling, no furnishings except the mattress on the floor and the occupant for the first 2 or 3 weeks of his stay in the cell is not allowed anything to read or anything to write with. They are not allowed TV or Radio a DVD a CD player. They are not allowed any form of entertainment or distraction whatsoever, they have nothing but the clothes they stand up in and they are not allowed any company, they are not allowed privacy either because the room is video monitored 24 hours per day. One of the other very distressing things we got in the course of that case was video footage from one of these cells. They are recorded 24 hours per day and if you put it on and play it back at high speed you get this most distressing sense of the way the occupants spend their time. They spend about 1⁄3 of their time sleeping, usually in the foetal position, they spend about 1⁄3 of their time sitting down with their knees hunched up rocking back and forwards like a wounded animal and they spend the rest of their time pacing around the cell. It is just dreadful to watch, and destroys them mentally.

Anyway Amin was not allowed any company or any respite in his day except that every 24 hours he would be allowed a 20 minute visit from Masuma. After he had been in management for 10 or 11 days Masuma missed a visit, and Amin complained because it was all he had to live for. He was told by the manager of the centre, that Masuma had been taken into Port Augusta Shopping and that she would be there for the next day of her visit. By the end of the next day she hadn’t come and Greg Wallace the department officer who ran the Baxter detention centre, came into the cell and explained to Amin that Masume was now back in Tehran. And if he wanted to see her again he should voluntarily leave Australia and abandon his refugee claim. He collapsed with horror when he understand what he was being told and spent the next 8 weeks in solitary confinement. A psychiatrist was sent in to examine him and he said that solitary confinement was destroying him. When we learned about it and sent a psychiatrist in – he reported, also that solitary was destroying Amin. We went to the court, seeking an order simply removing him from solitary and putting him back into the general part of the camp. The government did not contradict any of the facts that we put forward, they simply argued that the court had no power to tell them how to treat people held in immigration detention. A breathtaking submission! Here we people have innocent of any offence, not suspected of being a risk to the community, and the department says that we will treat them the way we want, and you the court keep out. Well the judge disagreed with that and ordered that he be removed from solitary and ordered that he be removed to a different detention centre so that he would not have to see the guards that treated him in this way.

The Government, the Department I should say, appealed against this and they took the time, 3 judges of the federal court, they flew senior council from Sydney and Adelaide to argue solemnly that they should be able to do as they liked, and when asked by the judges, Why? Why are you appealing this? What’s wrong with Amin being taken out of solitary confinement which was destroying him? The council only had to say well the department wants to be able to run the detention centre in the way it thinks fit, without fear or favour. The appeal failed!

In the meantime, Amim had been moved to the Marybyong detention centre in the Western suburbs of Melbourne. He spent another 18 months there, grieving for his lost daughter. Eventually the department gave him a protection visa, a protection visa which his own daughter would have got because her claim was identical to his own but he will never see her again, because illegally without explanation they removed her from the country under the cover of a lie, and then stopped to defend what they had done.

If you don’t think you need protection from the way bureaucrats can behave and the way governments can behave then think about it for a minute.

There is another case that occurred to me, even I was shocked, a couple of years ago when I was asked to go to Adelaide and do an intensive in an escape case. During the Easter …..in 2002 a number of detainees had stepped through the hole in the fence that the protesters had made. Some of them got away, to be recaptured later most of them simply stepped out into the arms of the waiting federal police and were returned immediately into the centre. The people I was representing were in that category. Now I had every intention of winning, because they were charged with having escaping from immigration detention. Immigration detention is defined as includes variously, as includes in a gazetted case of immigration detention as being in control of an officer. Now we got the gazette of the Woomera Immigration detention centre and it is enormous and in the middle of it was the little shiny razor wire bit that you see on all the TV footage, but the detention centre itself goes much further. The fence they were all in was a kilometre inside the boundaries of the detention centre as gazetted. They never left the detention centre because they only got 2 meters outside the wire. And they were certainly the control of an officer, in fact they were in control of a hundred officers, and I thought that if we get the facts out to the court this would be a good defence against the escape charge. The thing is that you need to get the client, be able to know, what the evidence is that you are expecting that they should give. So I went down to the cells to speak to one of these guys. This was a Hassar from Afghanistan, at this point had been in detention for five years, unbelievable, I start to asking some questions designed to see what he would say when I asked the right questions in court. He was not able to tell me anything. I wondered perhaps that he couldn’t understand me, so I said, “What is my name?” and he told me my name, and I said “What is your name?” and he told me his name. I said “What is your mother’s name?” and he gave the 1000 yard stare that you see in long term prisoners, and after about 20 seconds he said “I can’t remember.” I said “What are your brothers’ and sisters’ names?” and he stared into the distance and said “I can’t remember, it is too long ago.” I asked him some more questions about his childhood in Afghanistan. It had all gone, his mind had torn up every clue to his past, we had simply destroyed him, as a person, he is 21 years old and he has lost the entire life so far. That struck me as being the most devastating thing that we could do to a person, who is no threat to us, and who being Hassarist has every reason to hate the Taliban.

Then, of course there is Arthur Ted’s case. I set you a challenge, for the next year or two tell everyone you know about Arthur Ted’s case. Because really people ought to know about this one.

Arthur Ted’s case:

Arthur Ted was a guy who came from to Australia as a boat person. He sought protection. He is a non-citizen, and the act says that a non-citizen, must be detained and must remain in detention until they get a visa or until in some way they are removed from the country. Well he was refused a visa. He found woomera absolutely unbearable, and decided not to prolong the agony by appealing. He asked to be removed, he just wanted to get out. Months went by and he was still there, the reason was that he was stateless. So there was no country that we could force him back to. So here we have only two ways out of detention a visa, refused, removal, not possible, what to do?? The government, with Phillip Ruddock as Attorney General, took this all the way to the high court, arguing, that although Arthur Ted was innocent of any offence, although Arthur Ted was not regarded as a danger to anyone, he could be held in detention for the rest of his life. An Innocent human being. By a majority of four to three the high court accepted that that was what the act says and that it is constitutionally valid. You don’t think that we need a bill of rights? An innocent human being can be locked up for life in Australia if the government decides to do it.

Let’s look a little more broadly, In the wake of September 11 a number of changes a number of changes were made to the laws relating to combating terrorism. The so called antiterrorism laws have produced some extraordinarily dangerous results. You haven’t Heard much fuss about them in the papers, which is a pity, but let me give you just a few examples. First of all ASIO, which has now got a vastly expanded budget has got the power to hold a person, incommunicado for questioning for up to a week. If the person, does not answer the questions satisfactorily, he faces five years jail. If they tell anyone where they are, or if they later tell anyone where they have been, they face five years jail. If a journalist finds out what has happened to the person, and publishes the fact, the journalist faces five years jail. Now when these laws were passed in the latter part of 2002 the news paper said that it was important to be able to question suspects. Let’s not worry too much about the right of silence, because terrorism was a whole new thing. So the right of silence has gone, and you have to be able to interrogate suspects. The problem is that this act applies to non suspects, as well as suspects. All that is necessary is that a person is thought to have information about someone else who is suspected as being involved in terrorist activities or plans. So an innocent person, can be disappeared off the streets, for a week at a time, and if they tell anyone what happened, they face five years jail, now try to think about that in real terms. Try and bring this home to your own circumstance. Bring to mind, the face of the person that you expect to see home for dinner, each night. Now imagine that that person does not arrive home at the time you expect. At first you are irritated, and you might ring their work, or you might ring your friends and find out where they are. They can’t tell you anything. They you get a bit worried and you ring the police and the hospitals. They can’t tell you. By the time you go to bed, you are seriously concerned about what has happened. The next morning, still no news, and the next day and the day after and the day after that, and the day after that, for the entire week, you have no idea what has happened to the person that you have expected to see home. And when they turn up, they can’t tell you anything. Is that what democracy is all about? Is that the kind of democracy we have come to protect? It seems to me that what we have done is to hand democracy over on a plate to the very people against whom we are defending it.

Now the next bit came in 2005. Control orders and preventative detention orders, done in concurrence with the states and territories. Control orders are orders which enable a person’s conduct to be affected in various ways, and the most extreme to be under house arrest for 12 months without access to communications. A preventative detention order is an order putting you in jail for a fortnight, not because you have committed an offence but because you might, commit an offence unless jailed. Both of these orders are obtained in secret hearings about which the subject knows nothing at all until they are arrested and served with the order, and even then they are not to be told what the evidence was that was used against them. So if someone made a mistake, could ASIO make a mistake? If someone made a mistake, they don’t know, and they can’t find out because they are not allowed to view the evidence that was used against them. Mistaken identity now assumes seriously dangerous possibilities to members of the Australian public and then there is another raft of provisions which affects the way that evidence can be held back from a court, or held back from a party to legal proceedings. They are too numerous to go into but let me give you a striking example, one of which I was personally involved, and I am getting over the shock of it.

An Australian citizen was notified by DIPAC that his passport was cancelled, and that he would not be given a new one. He was told that this was because ASIO had delivered them an adverse security assessment. ASIO has power to deliver adverse security assessments about people. He challenged the decision in the administrative reviews tribunals. If ART in its usual way, made an order at the outset, that the government should hand over to the applicant all the documents relevant to the case. When the documents came, two things were noticed. First not all documents were provided. There were documents identified that were expressly not provided. Second, documents that were provided were blanked out, in whole or in part. In some of them there was nothing but page numbers, which was uninformative. The justification for this was a certificate, signed by the then Attorney General, Phillip Maxwell Ruddock. He certified, that it would be contrary to the national interest for the applicant to see all the document, or to see the documents in their full form. He also certified that it would be contrary to the national interest for the applicant to be present in the tribunal when the government gave it’s evidence and made it’s submissions in the case. And he withheld his permission for anyone, on behalf of the applicant to be present in the tribunal when the government gave its evidence or made it’s submissions. So and I went along to the ART last year and sat outside for most of the two days of the hearing, wondering what the hell was going on inside concerning our client and to this day we have no idea. The tribunal gave a decision two parts. Open reasons, and secret reasons. In the open reasons they set out the broad parameters of the problem, and they said that nothing available in the material of available to the applicant, justified the decision to cancel his passport. Nevertheless they affirmed the decision to cancel his passport for reasons that were in the secret reasons. We have no idea what he was supposed to have done wrong. Is it someone else that they might have known? Could they have made a mistake? Could they have exaggerated the problem? We simply have no way of knowing. Now I thought that a fair hearing was one of the most fundamental things that a democracy promises. But the right of a fair hearing has now been grossly devalued by the so called anti-terror laws. Another aspect of this arises under the National Information Civil and Criminal Trials Act. It placed an obligation on any party involved in any litigation, civil or criminal, if they intend, to lead evidence, which might affect our National Security, of if they proposed to call a witness who’s presence in court might affect our national security interests, or if they proposed to ask a question in cross examination and they think that the answer might tend to affect our national security interests, they are obliged by law to notify the Attorney General of that fact. On doing so they have to tell the court and the court has to stop and the court stops until the Attorney General decides what to do. and the Attorney General is given the power to certify conclusively, that calling the evidence, asking the question, producing the witness, whatever, that doing that would be contrary to the national security interests. and the court is then told to determine to allow the evidence etc or not, but they are told to give principle weight which includes the certificate of the Attorney General. Which looks very much like it saying to the court, “Don’t let the evidence in if I say it shouldn’t. That means that you can have a trial that runs and is incomplete in a material respect. because relevant evidence has been kept out on the say-so of the attorney general. That’s bad enough but then have a look at what the actual national security interest means and is defined. It is defined as including various things, amongst which is our interest in international relations, So something might affect our interest in international relations and affect our national security interests by definition. It includes our interests in the functioning of international law enforcement agencies. So something has an impact on the operating of the CIA then by definition that affects Australia’s National Security Interests. It doesn’t as a matter of common sense but by definition it does. Now think of a hypothetical case. Imagine a case of, it is almost impossible to believe, but let’s suppose that an Australian citizen was taken captive by the Americans, and let’s suppose that they were subject to extraordinary rendition to Egypt for, what is it, vigorous questioning, which other people call torture, and let’s suppose when the CIA has belted the crap out of the person and he rightly signs a false confession, and he is bought to trial on the basis of this false confession, he wants to lead evidence to the effect that the CIA belted the crap out of him and that’s why he signed the false confession. That is evidence which bears on the operation of the CIA it therefore affects our national security interests by definition. And council who’s is proposing to cross examine along those lines in order to exclude the confession would have to notify the Attorney General and then the Attorney General has the opportunity to say that you must not lead that evidence. It is just outrageous. Now it is bad enough that there is that possibility, but then the person administering it the person was Phillip Ruddock, who doesn’t understand the idea of a fair trial. Remember when the US Congress passed it’s military commissions act in late 2006, the one designed to overcome the constitutional impediments that the previous military commission had, all of this designed to take David Hicks to trial, it had included provisions which said that the military commission trying David Hicks and Sedim Humbam and all the rest, is allowed to receive hearsay evidence and is allowed to receive evidence obtained by coercion. Now what that meant was possible was, let’s supposed that an informant, who’s been water boarded and comprehensively towelled up, says in a written statement that he saw selim Humdam do this that and the other with Osama Bin Laden and therefore he’s a terrorist. That written statement could be handed up and received as evidence without the person who wrote it being called up and cross-examined, a hear-say document. No problem. They check the military commissions act to see that it is alright. Produced by coercion, well too bad the military commissions act says that it is alright. In any Australian court, that would be excluded right at the start because first of all you can’t have hear-say evidence being lead against a person in a trial and second of all if any sort of evidence had been produced by coercion of any sort then it will be excluded. What did Phillip Ruddock say about this? About David Hicks facing a trial under those rules? He said that he is satisfied that it would be a fair trial. Well if that’s his idea of a fair trial then God help all of us. I can only hope that he will never ever hold any office of any importance anywhere in this country.

There we have some of the worst aspects of the Anti-terror legislation, but beyond all this, let’s not forget the shadow of Guantanamo Bay. Let’s not forget that for years the Australian government has not really protested as to what is going on in Guantanamo Bay. Most protested about the fact that torture is being used, not protested about the fact that people have been held there for years on end with no rights of the sort that prisoners of war are entitled to, with no rights that criminal suspects are entitled to, it is just a new legal black hole, that the Americans devised to deal with a problem that they conceived as a new problem. Which shows that they were not paying enough attention to the last four or five centuries. I make this point seriously. People think that the world changed on September 11 2001. Give me a break! It is just 400 years since a small group of zealous, pious young Catholic men tried to blow up the Houses of Parliament on the 5th November 1605. Their plan was to strike while the Royal family, the Lords and the Commons were all assembled in the one place and these were the people who were passing increasingly harsh anti-Roman Catholic Laws. They thought that they would get rid of the problem by getting rid of the people causing the problem. It was every bit as audacious and outlandish a scheme as flying two planes into the twin towers in New York City and yet strangely we reacted on September 11 2001 as if, this was a new phenomenon, as if terrorism suddenly sprung fully formed into existence. As if all the rules that we had devised in the past no longer apply. Perhaps it is only because it had come to American territory.

All of the phenomena, that I have spoken about, are terrible when measured against any human rights standards. Why then do people oppose protecting human rights by the rule of law. I think there are a few reasons, the first is as I suggested, that people didn’t think that they were necessary, I hope that I have satisfied you that in Australia today it is necessary, to provide some protection for Human Rights, because the truth is that we have had governments that are willing to do things that we thought that they would never do. Another proposition is that a Bill of Right won’t be any good, because look at North Korea they have a big elaborate Bill of Rights and look at Russia, the USSR has a big elaborate bill of Rights and so on down all the Totalitarian regimes. They say they have Bills of Rights and what good does that do? Therefore a Bill of Rights is pointless. Well there is a big difference. A Bill of Rights by itself will not do anything, but a Bill of Rights in a system which has a strong independent Judicial system does a great deal. In Australia we have a strong independent Judicial system. You can’t say that of the USSR, North Korea and so on. Zimbabwe, despite their recent fate, Zimbabwe has a Bill of Rights but it doesn’t have a strong independent Judicial system either, but with strong, independent courts and a good bill of rights you can stop governments, in their tracks, when they begin to betray the most basic principles which we regard as essential to a decent human existence. John Howard put forward probably the best argument in favour of a Bill of Rights, inadvertently it must be said. When the ACT produced it’s human rights act in 2004 he was asked what he thought of the idea of a Bill of Rights. He said “it was a very bad idea it interferes with the way a government does business”. They say it is anti-democratic because it transferred power from a democratically elected parliament to undemocratic, unrepresented, unelected judges for which, understand, boring old white headed male farts. It is sort of half right but it misses the point completely. In a parliamentary democracy with a written constitution as Australia does, the powers of government are divided into three branches, the executive branch, the Legislative branch and the Judicial branch. Each of those three Branches has separate areas that have been given to them by the constitution. The parliament is there to make laws. The Law makers powers are not unlimited, it is limited by section 52 of the constitution and there are other sections of the constitution but the limits are always in reference to subject matter. One of the most common forms of business in the high court is to determine whether of not as a matter of constitutional law a law made by the democratically elected parliament has gone beyond the bounds of the power given to it by the constitution. That the courts role is as umpire to see that the legislative branch and the executive branch don’t go beyond their powers. So if opponents to the Bill of Rights are troubled by the fact that courts, unelected, unrepresentative are striking down acts passed by the elected representatives, well they are about 100 years too late. Because that’s part of the rules, that’s the way the system works and if they don’t like it they would probably better go somewhere else. But in all modern democracies that is the way it works. Now a Bill of Rights depending on the model you choose all it does is that it introduce a new area of prohibition. It introduces a new method of restricting the powers of parliament. Instead of restricting it in reference to subject matter it restricts it in reference to some basic standards or values. Whilst there may be some problems in the determining those values are there is nothing novel in that, it is certainly not anti-democratic. There is another aspect to this undemocratic argument, the twist on that answer, usually is, if you don’t like the laws made by the parliament well then the electoral response is of course the right one, in a democratic system, in other words you throw out the government in the next election. That’s all very well, but it does have some limits. As a matter of constitutional theory if the parliament, for example, has the power to make laws in relation to children then it can pass a valid law that all red or blue-eyed children can be killed at birth. It would be a very nasty law and probably would be electorally unpopular but it would be a valid law because it is within the ……….51:2. The electoral response to that is of course – no government is going to do that and if they did we would throw them out at the next election. Well that’s not much comfort to blue-eyed babies born between the passing of the act and the next election, and it’s also not much comfort if blue-eyed people just happen to be the current public enemy number one. Substitute Jew or Muslim and you see that the problem will not necessarily solve itself by reference to the intellectual interpretation. Which brings us back to the point I tried to make earlier. The problem in a majoritarian system is that for the unpopular minorities majoritarian rule becomes like mob rule and the protection of rights of the majority will say nothing whatever to the protection of the rights and interests of the minorities. That’s really what the Bill of Rights are ultimately about. To make sure unpopular minorities are not picked on in a way that can’t be corrected and which are unacceptable when viewed from a more rational standpoint. The other objection and it is really easy to deal with this, is that it would be a lawyer’s picnic. A lawyers picnic. Now picnics are nice and lawyers are not nice so something happening to lawyers is not good and so we have to oppose the idea of the Bill of Rights because it would be happy for lawyers. Well I think the idea underneath the surface is that lawyers will make lots of money. Well I have news for you that opponents Human Rights – Human Rights law does not pay at all. If it is a picnic it is a very bare picnic and I don’t see any sign that there will be hundreds of Lawyers, queuing up to bring all sorts of irritating actions in order to get paid. I don’t think it is a serious problem. Now there is another, large difficulty with the opposition to Bills of Rights and it’s this! Watch out for this phenomenon, next time you read an article, an opinion piece, opposing bills of rights. They never identify what sort of Bills of Rights that they are opposed to. Now a Bill of Rights can mean any number of things, it can mean, at one extreme, a US style Bill of Rights, an old fashioned kind of document, constitutionally entrenched, that positively forbids congress from making laws of certain sorts. That is not what we are talking about. I have never heard in the 21 century an advocate for a Bill of Rights who is talking about a US style of Rights. What you need to identify is two things are they talking about a constitutional Bill of Rights or a statutory one, are they talking about a strong form of Bill of Rights or a weak form of Bill of Rights. When you have got them narrowed down to what they are actually talking about then you will see that their arguments don’t work.

The difference between a constitutional Bill of Rights and a statutory one is that the constitutional Bill of Rights, can’t be got rid of except by referendum. Let’s not worry about a Constitutional Bill of Rights in Australia because it is impossible, you are not going to get one in my lifetime. Lets think about a statutory one instead. Statutory Bills of Rights don’t hold as much weight because parliament can always side section or in extreme cases they can abolish it if they don’t like it. But at least they have to pay a political price for saying that we no longer adhere to this agreed set of basic Values. Don’t ever fall for the idea that Statutory Bills of Rights are useless, on the contrary they are very useful. Then Strong or weak. A strong model Bill of Rights will typically say things like parliament will not make a law that does xyz and will give a right of damages if a person’s human rights are breached. A weak model on the other hand will typically say we recognise the following rights as important and when parliament is introducing new laws it should assess that new law to see if it compromises and new rights and if it does it should declare that fact plainly. It introduces a political cost for betraying any of the rights that have been identified. The second thing it does is to say that judges, when interpreting legislation should attempt as far as possible, to interpret to give effect to the rights that are recognised, rather than to contradict the Rights that are recognised. Now it is only weak it is a sort of gravitational influence that stands beside the legal system, but an important one at that. Victoria has a weak statutory bill of rights, so does the ACT. But let me tell you what the Rights are and at the first Right that you don’t agree with, put up your hand. The right to life, the right to protection from torture and cruel inhuman and degrading treatment, freedom from forced work, freedom of movement, Privacy and freedom of thought, conscience, religion, and law, freedom of expression, peaceful assembly; freedom of association; taking part in public life, protection of families and children, a fair hearing, rights in criminal proceedings and so on. All the sort of things that we take for granted. The sort of thing that we assume are our right, in Australia, it is only when, the chips are down you discover, they are not our right at all because they are not protected at all. These are the sort of rights that most, sane people, would wish to see as protecting the right of rule as the Universal Declaration sought to persuade us all. We have been through cut back in Australia, in the past decade, it is a time that I and many others changed our minds for the need for legal protection of basic values in the form of a Bill of Rights. I hope that this year the sixtieth anniversary of the Universal Declaration all of you in this room, will get out and try an persuade your colleagues and political representatives that we do need a Bill of Rights and the reason right now, when we have got a government in Canberra that strikes me as being pretty good, by and large, the reason for doing it now, is that we need to have a good government in in order to get a Bill of Rights. Bad governments, the ones that we need protection from, are the last ones that will ever give you the protection that you need. So whilst we have the opportunity, let’s go.


About the Author
Mr Julian Burnside AO QC (BEc 1972, LLB 1973)
Barrister and author
After completing a Bachelor of Economics and a Bachelor of Laws at Monash University, Julian Bumside, QC, became a barrister. He joined the Bar in 1976 and took silk in 1989.
Mr Bumside acted for the Ok Tedi natives against BHP, for Alan Bond in fraud trials, for Rose Porteous in numerous actions against Gina Rinehart, and for the Maritime Union of Australia in the 1998 waterfront dispute against Patrick Stevedores. He was the Senior Counsel assisting the Australian Broadcasting Authority in the “Cash for Comment” inquiry and was senior counsel for Liberty-Victoria in the Tampa litigation.
While specialising in commercial litigation. Mr Burnside has acted pro bono in many human rights cases, in particular concerning the treatment of refugees.
Mr Bumside is also passionately involved in the arts. He collects contemporary-paintings, photographs and sculptures and regularly commissions music. He is Chair of Fortyfive Downstairs and Chair of the Mietta Foundation.
Mr Burnside has written a range of successful publications, his most recent being Watching Brief: Reflections on Human Rights, Law, Justice (Scribe Publications, 2007). Others include children’s book Matilda and the Dragon (Allen & Unwin) and a book of essays on language and etymology. Wordwatching – Field Notes from an Amateur Philologist (Scribe Publications, 2004). He also compiled a book of letters written by asylum seekers held in Australia’s detention centres, titled From Nothing to Zero (Lonely Planet, 2003)
Mr Bumside was the recipient of the 2004 Monash University Distinguished Alumni Award and elected a Living National Treasure, also in 2004. In 2009. he received an Officer of the Order of Australia (AO) in the General Division for service as a human rights advocate, and for his services to the arts and the law.
He is married to artist Kate Durham.
The above biographical information is quoted, with permission.from: http:⁄⁄www.monash.edu.au⁄alumni⁄prominent-alumni⁄julian-bumside.html
Matters of current interest can be found at:

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