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Human Rights Litigation in the UK and Australia
Stephen Sedley: Julian is an Australian silk of very great distinction with a
very interesting variety of experience which as you will see in a moment rather
mirrors the kind of interests that we at Cloisters have always had.
Cloisters goes back a long way. When I came to the Bar, its founder, D N
Pritt, a commercial silk and MP was still alive and took an interest in how I
was doing. He told me a number of useful and interesting things including how
he handled the House of Lords when arguing Bell v Lever Brothers in 1931 or
1932. We reach back some way.
One of the things that was passed on to me after Pritt’s death was the silk
gown which was made for him as a gift in India by the clients who he
defended in the Meerut conspiracy trial, one of the great moments of colonial
history. That gown has remained in chambers and been worn by a number of
us successively on the rare occasions when we have taken silk.
It is a particular pleasure then to be able to welcome somebody who is
plugged into the civil liberty concerns, the human rights concerns that we are
very much familiar with in these Chambers. Julian is somebody who has
moved across the spectrum of work. What he is going to do is talk about how
things work in Australia and it is for us to make the comparisons that we want
to with how things work here.
Australia of course, except for the Australian Capital Territory and Victoria,
has no human rights legislation. That does not mean to say that they are
unfamiliar with the principles of the international instruments. Julian acted for
the Maritime Union in Australia in a major piece of litigation which he will I
think tell you about and which I think will also change your own ideas about
the way things might function. He has acted for the main civil liberty
organisation, acting against the Australian Government over the Tampa affair,
another shameful business which you will remember when a ship loaded with
refugees was refused port by the Australian authorities. He has acted for
2
Indigenous Australians in the first successful piece of litigation against the
Australian Government in what is known as the stolen generation, young
Aborigines who were taken from their families and never able to reunite with
them. So it is very unsurprising that in 2004 Julian was given the Human
Rights Law Award by the Human Rights and Equal Opportunities
Commission, along with a great many other distinctions including the Order of
Australia for Human Rights Services and as a Human Rights Advocate. He
was awarded it in 2009, additionally, for his services as Patron of the Arts and
a fundraiser. He is a man of many parts and I will ask him to speak to you.
Julian Burnside: I have never seen a false trade description so deftly served.
I was talking about this a little while ago. I stumbled across a quotation which
struck me as being an apt way to start. It’s from Justice Brandeis’s dissenting
judgment in Olmert v United States. He said “In a government of laws,
existence of the government will be imperilled if it fails to observe the law
scrupulously. Our Government is the potent, the omnipresent teacher. For
good or for ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it invites anarchy. To
declare that, in the administration of the criminal law, the end justifies the
means -- to declare that the Government may commit crimes in order to
secure the conviction of a private criminal -- would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely set its face.”
It is a pity that was in dissent. I don’t know whether that passage has the
same resonance for you as it does for me but some of the most interesting
and certainly most gratifying cases that I have done in Australia have been
cases where the Government has been breaking the law and I think that
passage captures pretty well the gravity of such a phenomenon. It was one of
the cases under the Fifth Amendment and the question was whether evidence
obtained improperly could be used.
The idea arose for me in a very different setting, in the Maritime Union case
that Stephen mentioned. It was a curious thing for me to be involved in that
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case, not least because my practice had been up until then entirely
commercial litigation, with a boutique practice in computer law because in the
land of the blind the one-eyed man is king. I had discovered computers rather
earlier than most of my contemporaries.
Back to the point. In 1998 there were rumours swirling concerning the way the
stevedoring industry might deal with the Maritime Union of Australia. The
Maritime Union of Australia was the waterfront union; and Patrick Stevedores
was one of the two major stevedores.
Patrick Stevedores were very dissatisfied with the way the Union was
behaving. The relevant industrial setting was that the Howard Government,
then in its second year, had introduced the Workplace Relations Act which
included a provision which made it an offence for any employer to take
adverse action against an employee by reason of various considerations, one
of which was the membership of a Union.
Now, as I say, there were rumours that Patricks were going to do something
to the Union but no-one could pin it down. It was certainly the case that the
MUA was one of the most powerful and one of the most bolshie Unions, and
the Howard Government dearly wanted to see it crushed. The fact that I got
briefed by the Union was astonishing to everyone, because it really wasn’t my
field.
I remember having one of those conferences where ignorance is really your
best weapon. I had plenty of that, so I started asking some innocent
questions. The problem was that the Union didn’t have evidence to work with:
certainly not enough to justify an injunction. I said well let’s suppose the
rumours are true. Let’s suppose they do sack the workforce - because that
was the rumour - what would happen?
Well, say the experts, they’ll be reinstated. Why’s that? Well because of
provision such and such which says that you can’t just sack everyone
simply because they are in the Union. So I said, well if that’s right then what’s
4
all the fuss about? Are there any exceptions to the idea that they would be
reinstated if they are sacked en masse? Well only if the employer is going out
of business.
Now Patrick Stevedores had been around for over a century. It had all of the
equipment that you would typically associate with stevedoring operations on
docks and so I said: If they are going to sack everyone then they’ll have to get
rid of their assets, so what we need to do is write them a letter, asking for an
undertaking (a) that they won’t dispose of their assets and (b) that they won’t
sack their workers; and if they refuse to give the undertaking then that’s a
trigger to go off to court and get an injunction.
Well they replied to our letter with what a colleague of mine once described as
the generic “Get fucked, rude letter follows” reply, and so we filed a motion in
the Federal Court returnable on the following Tuesday, the Tuesday before
Good Friday, and we thought well we’ve got pretty good grounds to get the
injunction we need.
We turned up in court on Tuesday morning to be greeted not only by counsel
for Patricks but counsel for administrators who had been appointed to the
companies overnight. It turned out that, in the middle of the previous night, an
army of mercenaries had come onto the docks by boat, had pushed all of the
workers off the docks with the help of attack dogs and large gents in
balaclavas. The photos in the press the next morning looked terrible: here
were these big security guards in balaclavas sitting in Patrick Stevedores
shelters making sure that none of the MUA workers could get onto the docks.
Patricks had trained up an alternative workforce who had been put into place
overnight, and simultaneously with this they had appointed administrators to
the companies as a preliminary to the companies going out of business.
That was a bit of a game changer for us, but it occurred to me (again,
ignorance is a blessing) it occurred to me that judges tend not to like a litigant
who tries to steal a march. The company did the very thing we had asked
them not to do in between the lodging of a motion and the hearing of a motion.
5
We persuaded the judge to give us a holding injunction to prevent the
administrators sacking the workers until after Easter, when the matter could
then be dealt with properly.
Over Easter we worked furiously on all of the new documents that we
obtained to explain the new circumstances and we had then a two day
hearing in front of the primary Judge. He granted injunctions restraining the
administrators from sacking the staff. They had been pushed off the
waterfront, but they had not been dismissed. Of course the trick about
appointing administrators was that their motives for dismissing staff would be
simply the impecunious condition of the companies, and you couldn’t attribute
to them the statutorily prohibited reasons for dismissal that might have been
attributed to the companies themselves.
So we got the injunctions. That evening they filed a notice of appeal and two
days later the full Federal Court began the hearing of the appeal. It ran for
three days, and at the end of the third day the judges retired to consider their
judgment. At 7 o’clock that night they gave judgment in which they upheld the
primary Judge’s ruling. We went back and opened a bottle of cheap
Champagne (well it was a workers’ case after all) but at 9.30 we got notice
that they were going off to a Judge of the High Court (which is our equivalent
to your Supreme Court) seeking a stay on the Order which had been made by
the Full Court. It had been a rather long day, and I remember a couple of testy
exchanges with the Judge who essentially told Patricks what their grounds of
appeal ought to be and then warned us that an application for special leave to
appeal to the High Court would be heard the following Monday in Canberra,
and that we should approach it on the assumption that it may amount to a
hearing of the substance of the appeal.
The following Monday we all went up to Canberra and the hearing began.
The bar table was pretty fully occupied. I think there were about 17 counsel
for the various parties, and the argument ran for 4 days. On the 3rd May, just
over three weeks after our very first application to the court, we got judgment
6
from the High Court in which by a majority of 6 to 1 they upheld what the
primary Judge had said.
The case was extraordinary. It had brought the country to a halt because of
the magnitude of the issues. It had developed in a way that I had not
expected. And I must say it was one of those cases which significantly
changed my mind and perhaps my career. I had started my career believing
what my parents had told me, that Unions were a nuisance and big powerful
unions were a menace. I finished that case thinking that a well-regulated,
responsible Union movement is essential if you are going to have anything
like industrial justice in a community. That message was brought home to me
very powerfully as my instructing solicitor and I were leaving the court after we
got judgment on the 3rd May. A big bloke who was, I think, one of the cleaning
staff in the court burled up to us and said “Thanks fellows. We all feel a bit
safer”.
That captured a really important truth because if they could have crushed the
MUA then no Union was safe, no Union member was safe, no employee was
safe. What was interesting about that case, and what rather shocked me, was
that on the documents that we obtained on discovery it became blindingly
clear that the whole structure of the operation that Patricks had set in motion
on the 7th April 1998 had been done with the approval and encouragement of
the Government. The Government had actually helped them set it up; the
Government was in a conspiracy with the major stevedoring company to
break the Government’s own industrial laws. Now I don’t know: perhaps for
all of you that seems a pretty commonplace thing. I never thought in my
wildest dreams that Governments would behave as badly as that. I later learnt
that it wasn’t an isolated incident, but I discovered it in a rather different
context and that was in connection with the Tampa litigation three years later,
which I will come to in a moment.
Now to try and nod to the title (because Sheryn put a lot of effort in thinking up
a title) we do have some human rights legislation in Australia. The Australian
Capital Territory has a Human Rights Act which was introduced in 2004, and
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Victoria got a Charter of Human Rights and Responsibilities Act a couple of
years later. But of course in our Federal system it is the Federal Government
which swings most of the weight, and most of the serious breaches of human
rights are at Federal level. So State or Territory human rights legislation
simply does not help. The interesting thing about the approach of
Governments to human rights, and especially the John Howard Government (I
will not try and disguise the fact that I detest John Howard: I thought he was a
terrible Prime Minister who did terrible things to the country). We got a very
interesting snapshot of his thinking when the ACT Human Rights Act was
passed. He was questioned at a doorstop interview. He was asked what he
thought about a Human Rights Act? And he said “I think it’s a really bad idea
because it gets in the way of what Governments do.”
I always thought that was the point of human rights legislation. He
inadvertently put forward the most powerful argument in favour of a Human
Rights Act. In Victoria as I say we got human rights legislation a couple of
years later. I am happy to report that in neither jurisdiction has it caused
either a flood of irresponsible litigation nor has it brought the world as we
know it to an end. Neither Act has done any harm.
We recently had a change of Government in Victoria and the incoming
Government came in on an election promise that they would scrap the Charter
of Human Rights. Fortunately, the Premier had second thoughts about it and
pulled his Attorney into line, so we still have our Charter of Human Rights. If
they had done what they promised I think - and I haven’t checked this but I
think - we would be the only jurisdiction in the world to have introduced human
rights legislation and then repealed it. Not a first that I would want to be
associated with.
Because we do not have Federal human rights legislation, human rights
litigation at Federal level is quite difficult. Some Judges on the High Court
have been quite creative in finding protections within the creaking machinery
of our Constitution. So, for example, our constitution divides the powers of
Government explicitly into the three arms – legislative, executive and judicial -
8
and quite early on the court held that, because of this division of Government
powers, no arm of Government can exercise the powers given to another arm
of Government and so, with the separation of powers, you can find a brake on
some of the misconduct of the Executive Government in particular and you
can identify limits to the power of the Parliament. But it’s a very clumsy
instrument for the purpose of protecting human rights, and they’ve really got to
want to help because an aspect of the separation of powers jurisprudence is
the “chameleon” doctrine. This means, in substance, that the character of a
particular activity, and determining which arm of Government it belongs to, will
vary according to the context in which the question is asked. This makes it
possible to make up the answers that suit you.
But the High Court has been at times, quite creative. It did manage to find in
1992 that the Aborigines were the owners of the country at the time of shite
settlement, and it recognised for the very first time since 1788 that Aborigines
had rights to the land that they occupy so long as those rights hadn’t been
supplanted by a later grant.
Similarly, the Court found an implied right of free political speech premised on
the proposition that the structures for electing a democratic parliament must
assume that the electorate will be relevantly informed and thus there is an
implied right of free political speech.
But finding fundamental rights in the interstices of the Constitution has
shortcomings, and those shortcomings were first exposed in a case called Lim
in 1992 which tested the early mandatory detention legislation. (We have a
very peculiar attitude to people who turn up without an invitation, which is odd
because Australians are a nation of gatecrashers and the Aborigines have
been conspicuously silent about people turning up in small boats).
In Lim’s case the question was this: Where the Parliament says that a non-
citizen who comes to the country and does not have a visa must be detained
until they get a visa or until they are removed, is this a breach of the
separation of powers? Punishment is central to the powers of the judicial arm
9
and therefore - is it punishment to lock a person up for an indeterminate time
pending visa processing? If so, for Parliament to send a person directly to jail
would be a breach of the separation of powers. But the court said no – that’s
not how it works. This is detention for an administrative purpose and if the
detention is for a legitimate administrative purpose, then it is valid: it is within
the proper power of the Parliament to grant the executive the power to
imprison. It’s a troubling result.
The potential of Lim’s case came into rather sharp relief in 2004 in the case of
Al Kateb. Mr. Al Kateb was an asylum seeker who had come to Australia to
seek protection. The mandatory detention provisions of the Migration Act
provide that a non-citizen who does not have a visa must be detained, and
remain in detention until they get a visa or they are removed from Australia.
Mr. Al Kateb was a non-citizen without a visa. Therefore he was put into
detention. He was refused a visa. He could have sought judicial review but
that would typically mean a couple more years in detention. He found
detention so oppressive that he said instead: I’m not going to take it any
further. Remove me from Australia. I’ll sign any documents that are
necessary.
Time went by and he remained in detention because he is stateless and there
was nowhere he could be sent. He was in that rather bleak position of not
being allowed to be anywhere. So the case went to the High Court, and
although Mr Al Kateb had not broken any law, was not suspected of being a
danger to anyone, the Howard Government argued all the way to the High
Court that he could remain in detention for the rest of his life. By a majority of
4 to 3, in August of 2004, the High Court held that that’s what the Act means
and with that meaning it is constitutionally valid. This is not a good illustration
of being able to find human rights embedded in the interstices of our
Constitution. I would have thought the separation of powers argument might
have got up in a case like that but sadly it did not.
Let us be blunt: if the Constitution cannot guarantee the freedom of an
innocent person, then we have a problem.
10
Alongside Al Kateb’s case, just to sharpen the indecency of it, alongside it
there was the case of Behrooz, which was argued on the same day and
decided at the same time. Mr. Behrooz had been held in Woomera Detention
Centre - a notoriously dreadful detention centre in the South Australian desert.
In the Easter of 2002 a bunch of Australian activists had gathered at
Woomera and created a bit of a disturbance. During the disturbance they
created they managed to pull apart the bars that surrounded the camp just
enough so that a few detainees were able to get out through the bars. Some
of them just sort of stood there looking around whilst the Federal Police
surrounded them and took them back inside; a few others made a dash for it
including Mr. Behrooz.
Mr. Behrooz was then charged with escaping from immigration detention.
Immigration detention is not a place. It’s a state of existence and it includes,
for example, being in the company of an officer who has a practical ability to
control your movements at the time. Now he was charged with escaping from
immigration detention and I had been looking for a case to test what are the
limits of the conditions in immigration detention, because we had evidence of
the conditions being quite dreadful and it occurred to us that if the conditions
in which a person was being held were so dreadful that they couldn’t be
reconciled with a proper administrative purpose, if they were more than was
necessary for the administrative purpose of processing a visa application,
then presumably the Parliament could not legitimately have legislated for
those conditions. It is one thing to say you’ll be detained until you are given a
visa. It’s another thing to say you’ll be dropped down the bottom of a deep
hole and held there without food or water until you’re given a visa.
The Migration Act was silent on the physical conditions of detention and there
were no regulations concerning the physical conditions of detention. The
question then was: Would the physical conditions of detention have any
bearing on the validity of the detention system? That was supported by
evidence about the awful privations and the acts of insanity and self-harm and
suicide and so on that happened in detention but on the same day that the Al
Kateb case decided that you could be held in detention for the rest of your life
11
the Court held in Behrooz that the conditions of detention, however dreadful
they may be, do not invalidate the detention. In a third High Court decision in
that same year, the case of Woolley held that all of these things apply equally
to child detainees as to adults.
When you see a line-up like those three cases you begin to wonder where the
country has gone that you thought you understood.
Another problem has emerged in recent times which has been very well dealt
with by your House of Lords as it was in A v Secretary of State for the Home
Department. We have recently had a number of people in Australia who have
come as boat people, who have applied for protection visas and have been
accepted as refugees, so there is no question they are in fact refugees but
before being given a visa they are checked by ASIO, our security apparatus.
ASIO has adversely assessed them on security grounds. Now when ASIO
adversely assesses a person on security grounds it refuses to say what it’s
taken into account and a case that I took to the Federal Court a few years ago
which was only decided last year, was set up to test that very problem.
You may remember that we had the miserable Pacific Solution in which
asylum seekers were bundled off the Pacific Island and marooned. Although
John Howard claimed, at the start of the Pacific Solution, that none of them
would ever set foot in Australia, eventually a large proportion of them were in
fact brought to Australia, having been accepted as refugees. But two of them
were left on Nauru. They had been assessed as refugees but were left on
Nauru in limbo because they had been adversely assessed by ASIO after four
years or so in detention. But ASIO would not say why.
So we took their case to the Federal Court seeking judicial review of the
decision to adversely assess. Both men gave evidence. They both gave
evidence that they had never done or said or even thought anything that could
bring them within the reach of the security provisions which ASIO operate
under. They were not challenged in that evidence. They were not cross-
examined at all about that evidence and no evidence was put up by the
12
Government to suggest anything that they had ever done that would justify an
adverse assessment. ASIO’s argument to the Trial Judge was – You do not
know what we took into account in adversely assessing therefore you cannot
say we were wrong. The Judge agreed with that. Welcome to Kafka territory.
Because they were non-citizens their only avenue of recourse, such as it was,
was to judicial review. If you are a citizen who is adversely assessed you can
go to the Administrative Appeals Tribunal and have a merits review. I ran a
test case a couple of years ago for an Australian citizen who had been
adversely assessed, and as a result his passport had been cancelled. That’s
when he found out about the adverse assessment.
So he applied to the AAT for a review of ASIO’s decision to adversely assess.
The Tribunal made the usual orders requiring ASIO to hand over all
documents that were relevant to the case. It handed over some of them but
they were redacted very substantially, so that all that was left were a couple of
headings and some punctuation. They had other documents which they
declared existed but were not handed over at all. All of this was justified by a
Certificate of the Attorney-General certifying that it would be contrary to the
public interest for the applicant or his legal advisers to see the unredacted
documents or the withheld documents, and he also went on to withhold
permission for the applicant – or anyone acting on his behalf - to be present in
the Tribunal when the Government gave its evidence or made its
submissions.
So in a two day hearing I spent most of the two days sitting outside of the
hearing room, with my client and my junior, wondering what the hell was going
on inside. My submissions were quite brief because I didn’t really know what I
had to say. The reasons from the Tribunal came down in two parts. Open
reasons and secret reasons. The open reasons said that there was nothing in
the material available to the applicant to justify the adverse assessment. But
for the reasons given in the secret reasons the adverse assessment was
upheld. That then went on appeal to the Federal Court and the Federal Court
said that there was nothing wrong with that approach to the problem.
13
So there you have a difficulty with ASIO. They simply will not tell you anything
at all about why they have adversely assessed. So to get back where I left off.
We have a number of people who have come to Australia, about 50 of them at
the moment, who have come to Australia, have been assessed as refugees,
and have been adversely assessed by ASIO. They cannot find out what
they’ve done or said that justifies an adverse assessment but their visa is
either refused or revoked and they are held in detention.
Now because they are refugees they cannot be sent back to where they came
from, and because they have been adversely assessed they cannot be given
a visa, so they are stuck in Mr Al Kateb’s permanent limbo.
There was a startling case in the Australian newspapers just a few weeks ago
of a Sri Lankan woman called Ranjeeni who has children aged 6 and 9 years.
Her first husband was killed in Sir Lanka. She fled Sri Lanka, and was granted
asylum. She and her new husband were called in to the Immigration
Department in Melbourne just before Mother’s Day this year. The husband
was asked to wait in another room. After half an hour officers of the
Department explained to him that his wife and children have now been sent
off to Villawood in New South Wales, where they will remain in detention
because her visa had been revoked because she has been adversely
assessed by ASIO.
The husband lives and works in Melbourne. It’s several hours to get from
Melbourne to Sydney by plane. He cannot afford to quit his job in order to
visit his wife, so the family has been physically split between two States and
on the current law there is a prospect that she and her children will spend the
rest of their lives in detention without knowing why.
It is one of those dreadful things which, if we had proper human rights
legislation, I think would not be possible. Or if we had a Government that
cared enough it probably would be worked out slightly better. And that brings
me to this notion of social attitudes and what Governments can get away with
when social attitudes are as they seem to be.
14
John Howard really lowered the standards with the Tampa episode. What
happened with the Tampa was that in August 2001 a boat load of Hazara
refugees from Afghanistan were heading off from Indonesia in the direction of
Christmas Island which is a tiny outcrop of Australia in the Indian ocean.
Their boat began to founder. The Australian Government knew about it and
radioed the Tampa, a Norwegian cargo ship, and asked it to rescue them. The
captain of the Tampa later said that he thought the boat might have had 40 or
50 people on it and was astounded when 434 people climbed out of it onto the
deck of the Tampa. There were pregnant women, there were people in poor
health, there were people who were fainting and so on.
The captain told the Australian Government that he needed medical help.
They agreed with that but did not send it. He decided to head for Christmas
Island. Apart from any other consideration his ship was licensed for 50 people
and all of a sudden he is overloaded to the tune of 434. He said he was going
to put them ashore at Christmas Island and Howard sent the message directly
that the ship would be refused entry. And so there was a stand-off: the
Tampa hovered just outside the Australian territorial limits off Christmas Island
until eventually enough people were in obvious distress that the Captain of the
ship decided to defy the Government. He steamed into the waters off
Christmas Island whereupon Australia sent out the SAS to take command of
the bridge under arms.
For some days, the Tampa was stranded, with 434 bedraggled refugees
sweltering on the steel deck of a ship in the tropical sun. A friend of mine
worked up what he thought was a reasonable case theory for breaking the
impasse and asked me if I would act pro bono. Now I didn’t know anything
about the treatment of refugees then and I didn’t know anything about
maritime law and still don’t but ignorance being my common weapon I agreed
to do the case because it seems plainly wrong to keep any group of human
beings on the steel deck of a ship in the tropical sun. It just seemed a bad
thing to do and I thought it was a very miserable thing.
15
So we rolled up to court on Friday afternoon to get an injunction requiring the
government to bring the refugees ashore, detain them and process their
asylum claims. I thought it would be one of those sort of quick in and out get
an injunction, go off for the weekend. The Solicitor General came down and
said he wanted a trial immediately, so the trial started the next day, Saturday,
and the case ran through to the following Wednesday.
It is little-known that we actually won at first instance. The reason it is not well-
known is that the judgment at first instance was handed down at 2.15 p.m.
Melbourne time on 11th September 2001. Nine hours before the attack on
America. The appeal came on a couple of days later and by 2 to 1 majority
the full Federal Court overruled the primary decision.
One of the interesting things and this is - really wow I’m getting off the subject
- one of the interesting consequences of that case that I’m sure is familiar to
you. If ever you do a pro bono case in any area you find a lot of people want
you to do their pro bono case in that area, so it’s amazing how you become an
expert in the field. I found myself very quickly being inundated with requests
to act pro bono for refugees and most refugee cases in Australia are done pro
bono on the refugee’s side because almost by definition the refugees have no
money. Legal aid is forbidden to run their cases and so they depend on
unpaid private support.
What really galvanised me was not the Tampa case but another I received
later. It was for an Iranian family, a mum and dad and two daughters aged 10
and 7 at the time. They had fled Iran. They are members of the Sabean
Mandeans, a pre-Christian group which is very badly treated traditionally by
the Muslim majority in Iran. They’d fled Iran after a terrible incident and they
ended up in Woomera detention centre.
After 15 months in Woomera they were all doing it pretty tough, but especially
the 10 year old girl. She had stopped eating. She had stopped drinking. She
had stopped grooming herself. She was incontinent by day and by night. A
psychiatrist who heard about the case and went to the Detention Centre – it’s
16
a 5 or 6 hour drive outside Adelaide - and he wrote a scathing report saying
that this child was at extreme risk. He said that for her safety it was essential
that the family be sent to a metropolitan detention centre where she could get
daily clinical help. The department ignored that for a couple of months. He
wrote another report, even more trenchant, which finished with the
observation that the entire family had already suffered in Woomera beyond
the human capacity to endure. He said that the family had to be sent to a
metropolitan camp so this kid could get daily clinical help.
Eventually, after another 4 or 5 weeks delay, the department relented and
moved them from Woomera in the South Australian desert to Maribyrnong
detention centre in the western suburbs of Melbourne. And although the
reason for moving was that the kid needed daily clinical help, for the first two
weeks of their stay no-one came to see her. Not a nurse or a social worker or
anyone and on a Sunday night in May of 2002, while her mother and father
and sister were off in the mess hall having their dinner, this little girl took a bed
sheet and hanged herself.
Now she was only little and she did not know how to tie the knot properly so
she was still strangling when the family came back from dinner and they took
her down and she and her mother were then taken to the general hospital
nearby, with two guards so they are still officially in immigration detention.
The lawyer who had been looking after their visa application whilst they were
in Melbourne heard about this and went to the hospital at 9 or 9.30 that night.
He said hello to the guards, who know him well enough because he is a
regular visitor at Maribyrning, and he said: I just want to speak to the mother
to see if there is anything I can do to help. And the guards said to him “You’re
not allowed to see them, because lawyers’ visiting hours in detention are 9 to
5.” And they sent him away.
He then rang me at home and told me what had happened, and I still feel the
shock of knowing that the country that I grew up in could treat a child so badly
as to drive her to try and kill herself and treat her so carelessly as to turn away
someone who was just offering simple human help. It is a shocking thing.
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This led to a switch which - at this point I am now officially utterly removed
from the topic. Here is the point of departure - Having had a really
conservative upbringing and a silver tail commercial silk’s existence I
suddenly found myself being impelled to criticise the Government sharply,
because every single case I did in this area threw up more and more
examples of careless cruelty of the sort that I have just told you about. Too
many examples to talk about here. And I worked this out: First of all, it was
clear that the Howard Government was making political capital by
conspicuously mistreating refugees. That’s a horrible thought when you focus
on it, but being tough to refugees got them votes and we’re seeing it played
out again in Australia right now. This minute. The two major parties are trying
to out-tough each other in the way they will deal with boat people
notwithstanding that we get so few.
Anyway I then, for the very first time in my life, became a political campaigner
which is a very weird space for a novice. I suppose there must be quite a few
of you in this room who have been political campaigners, but for me it was a
novelty and not an attractive one. But I worked on this theory: that the only
way to get the law changed was to get the Government to change it, and to
get them to do that you would have to change the public attitude to this,
because as soon as the Government saw which way the wind was blowing
they would change the law. It’s the Jim Hacker model of government: “I am
their leader, I must follow them”.
I knew that if the law was applied according to its terms, the result was
injustice. That’s a devastating thing for a lawyer. I had never encountered that
directly before, but that was the position we had got to. So I became a
campaigner and what I discovered then was quite interesting.
First it’s the only time in my life I have received death threats. That was a
revelation about the country I grew up in. On the first day of the Tampa case I
got back to Chambers and received I think 3 or 4 death threats by telephone.
This still strikes me as a weird thing: I’m going off pro bono trying to help
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people who obviously could not help themselves, and for this I get death
threats.
And as I became increasingly vocal as a campaigner, I started getting hate
mail. Whenever I spoke publicly about the subject, which was quite often, I
would get hate mail. And that’s a fascinating experience for a polite,
conservative, middle-class lawyer. When I say hate mail, I mean mostly
emails, but also actual letters: letters come written you know, pen and paper,
up round the side strange scrawly writing: you’ve all seen them. Now the
people who write actual letters are a very forgetful bunch. They never
remember to put their name and address.
But with email you can always reply to them even if you don’t know who they
are, and most of the hate mail came as email. And they were awfully rude.
They questioned my sincerity, my motives, my integrity, my intelligence, my
parentage…they were astoundingly , unremittingly rude. Still, I decided -
consistent with my theory that it was going to be necessary to change the
mind of the public – that here was a group who were putting their hand up
saying: I disagree with you. So I decided to answer them all.
I had not done the maths. I had not worked out how long it would take. It did
take a while, but I made a point of answering every single email. Typically
they would fall into a few observable patterns. I would sit up late at night
writing: Dear so and so. Thanks for your email. I gather you don’t agree with
me. But did you realise they haven’t broken the law and they come in small
numbers and we lock them up indefinitely, and so on.
And in most cases, that triggered a response from them. And every single
response was polite. From flaming and furious and capitals and everything to
room temperature polite. In one step. Really extraordinary. And some of them
would say Gosh I didn’t realise that. OK. Fair enough. I agree with you. And
others would say Look that’s all very interesting. I didn’t realise that but….and
then the ‘but’ would be a disguised way of saying they are Muslims or they are
different from us or I don’t like them or there’s something wrong with them. So
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I’d write back saying Thank you for getting back to me, but did you know there
is this, this and the other. I gave them the facts.
This went on for about 4 or 5 years. At the end of it – there is an interesting
lesson in advocacy here - at the end of it, I estimate that about 50% of the
people who wrote these screaming emails ended up saying, in substance:
Thank you for discussing this with me. I agree with you now. About 25%
ended up saying in substance: Thank you for discussing this with me. I don’t
agree with you but I think it’s good you stand up for what you believe in. And
the other 25% - well….
If it’s possible to move further away from the topic I’m about to do it, because
all of this hate mail basically petered out at the end of 2004 or so. The thing
had gone off the radar. The boats had pretty much stopped coming and things
were okay. And I couldn’t say I missed the hate mail, but out of the blue in
late 2007 I got an email from someone and it said – it’s not difficult to
memorise it - it said “Dear fuckwit. What makes you think that being a QC
means anyone is interested in your opinions. Why don’t you fuck off and die.”
Engaging intellectually with this is challenging. I thought his principal position
was probably right, unless it was a Judge who wrote it, but I don’t think it was.
And so rather than concede the ground I used a line which one of our political
cartoonists had given me and I wrote back saying: Dear ……Thank you for
your email. The offer of your sister is interesting. Please send photographs.
Even now five years later I get a warm glow remembering that. And he
replied. He said Fair enough. I suppose I was a bit over the top.
It occurred to me that there’s a rational mind there after all. And so I wrote
back to him saying Look I don’t mind. It’s okay but you know I’ve been talking
about this stuff for quite a while. Why did you write just now? Did it all get too
much for you? Or did you just stumble on it?
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And he wrote back saying “I should come clean. I’d had a huge night out. I
met a bloke I couldn’t stand. We were arguing about refugees. I should have
written to him I suppose. Instead I wrote to you. Please just ignore me.
Every cloud has a silver lining.
I’ll just tell you about the Bruce Trevorrow’s case. Bruce Trevorrow’s case,
and the MUA case, are the two cases I am proudest of. They’re the two cases
I think where maybe I made a bit of a difference. Bruce was born at One Mile
Camp, Meningie in November 1956. Meningie even now is a one horse town,
down on the coast of South Australia. In the 1950s it must have been a fly
speck. One Mile Camp was a settlement of Aborigines one mile outside
Meningie, because in those days - when I was a little boy going to private
school in short pants - it was illegal in South Australia for Aborigines to live
closer than one mile to a place of white settlement unless they had a permit.
Anyway on Christmas Day of 1957, when he was 13 months old, Bruce got
sick and his father was very worried about him and some people in Meningie
who had a car drove him up to the Children’s Hospital and he was admitted to
the Children’s Hospital on Christmas Day 1957. The records still survive. He
was diagnosed with gastroenteritis. He was treated appropriately and after a
week his gastro had resolved; and a week after that he was given away to a
white family. Now the white family had a daughter who was 16 years old at
the time and she remembered the day very well. She came and gave
evidence at the trial. She remembered that her parents had seen an ad in the
local newspaper offering Aboriginal babies. So they went to the Children’s
Hospital one Sunday afternoon to get an Aboriginal baby. She gave evidence
that her mother had always wanted a second daughter, and they saw this line
up of Aboriginal babies and saw a cute little curly headed girl and said We will
have that one.
They took her home and when they changed her nappy they discovered she
was a boy. That’s how Bruce was given away. Now a little bit later Bruce’s
mother managed to find an envelope and a stamp and a piece of paper and a
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pen and an address, and she wrote to the Department of Aborigines asking
how Bruce was going and when he was coming home. That letter survives on
their records and the reply survives as well. They wrote back saying He’s
doing quite well but the doctors say he is not well enough to come home yet.
It was a flat out lie. They had already given him away. And their records show
that for the next 8 years they actively prevented the mother from knowing
where her son was and prevented her from having any contact with him.
They were reunited albeit briefly when he was 10 years old. At that point the
foster mother was having some personal difficulties of her own and Bruce was
being a bit problematic. He was seen by the Child Guidance Council. When
he was 9 years old they diagnosed him as having no sense of who he was or
where he belonged. You might think that was not such a surprise.
Anyway he was getting to be a bit difficult. He was introduced to his natural
mother on his tenth birthday. His father had died a few months before so he
never met his father. It was an interesting meeting for Bruce and for his
mother. It was arranged that the following Easter he would go down to Victor
Harbour and spend Easter with his natural family. So the welfare people came
to the house and put him on the bus down Victor Harbour, waved him
goodbye and when the bus had gone the foster mother says “I won’t have him
back. He’s too much trouble”. So the welfare people posted his toys and his
books down to Victor Harbour. That’s the way he was reunited with the family
he never knew.
It didn’t take. He ended up spending the rest of his childhood in State care.
By the time he came out of State care aged 18, he was an alcoholic. His
preferred drink was menthylated spirits with orange juice. So much for State
care. Anyway Bruce led the sort of life which is fairly typical for young
Aboriginal males in Australia (a) troubled childhood; (b) difficult adolescence;
(c) periods in and out of jail; (d) minor brushes with the law; (e) sometimes
employed, sometimes not; (f) drifting around the country; (g) footloose. Every
time Bruce got into trouble with the law he would be sent for a psychiatric
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assessment and every psychiatric assessment he had from the age of 10 until
the age of 49 when he went to court on his case every psychiatric assessment
said that he had no sense of his own identity or where he belonged.
In evidence as a testimonial witness Bruce was a shocker. He was just
terrible. I mean, his mind was shot and he was a hopeless witness. But as
real evidence he was devastating, because he was clearly a broken person.
His brothers Tom and George had turned out to be leaders of their Aboriginal
community in South Australia. They had not been taken by the department
because they had not ended up in hospital. They came and gave evidence in
Bruce’s case. They were nearly late because they had been overseas
representing Australia at a meeting of Indigenous leaders on the repatriation
of Indigenous remains.
And they had come along to give evidence, and here is Bruce, standing there
hopelessly, and they’re up there - good, strong, resilient men. As an example
of human beings as real evidence it was undeniable that Bruce had been
thoroughly destroyed.
Now talk about Governments being dishonest. The South Australian
Government denied every single allegation in the Statement of Claim. They
denied that he had been taken unlawfully even though at the time that Bruce
was taken they had a written Opinion from the Crown solicitor in their files
saying they do not have legal power to remove Aboriginal children from their
parents. It couldn’t have been clearer. (Their case was that the Crown
Solicitor was wrong).
Their records included letters from the department to their counterparts in
other states saying It’s a great inconvenience. We don’t have legal power to
remove children from their parents but just between us we do it whenever we
get the chance. They were so candid in those days.
The difficulty confronting us was that the Government denied everything. They
even denied that it is harmful to a child to be removed from his or her primary
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carer. Which was fascinating. It gave us a chance to bring out all of John
Bowlby’s learning on the subject.
The Government also said well (a) he’s not damaged but, if he is damaged,
it’s because he’s a product of incest. Now back in those days illegitimate
Aboriginal children fell into a slightly lower and disadvantage category.
Bruce’s parents were not married. Aboriginal women who were not married to
the father would often put down the name of a relative with the same surname
as the father, in order to cover the fact that the child was illegitimate. Bruce’s
mother had given, as the father’s name, the name of her brother.
So the Government of South Australia, the keeper of the records of births,
deaths and marriages, ran seriously the proposition that if Bruce was
damaged it was because he is the product of incest. They persisted with this
argument, albeit faintly, even after we tendered from their records the death
certificate which showed that the ostensible father on the birth certificate had
died ten years before Bruce was born. IVF was not that advanced in Meningie
in 1956.
The decision was reserved for 18 months, and I got increasingly despondent
at what was going to happen. Eventually, the judge produced a very long
judgment in which he awarded Bruce a total of $800,000. The State’s appeal
was unanimously dismissed. Bruce is still the only member of the stolen
generation to have been formally recognised by the system as having been
taken illegally.
One of the important points to come out of the case is the damage which is
done not only to the individuals who are taken, but to their descendants.
Bruce, poor man, was broken as a child by his experience. He turned out to
be a hopeless husband and a dreadful father and the damage which he
suffered has been passed on to them and I am sure that, in a smaller degree,
they will pass it on to their children. Because dysfunctional people tend to be
dysfunctional citizens and dysfunctional parents and the damage echoes
down the generations.
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Some Australians throw up their hands in despair and say Why are Aborigines
so hopeless? Well look around, consider what we did to them, and take a
lucky guess. We took their land and then we took their children and then we
called them all hopeless losers because of the damage that we had inflicted
on them. It took until 1992 for us to acknowledge that the land was theirs
when white settlers arrived; it took until 2007 for us to recognise that we
inflicted terrible harm on them by taking their children. And we blame them for
being as they are.
Thank you very much.