Justice William Charles Crockett AO - Victorian Bar

News and ViewsProtecting Rights in aClimate of FearThe following speech was delivered by Julian Burnside QC on 13 December2006 as the Equal Opportunity Commission’s Sixth Annual Oration.IN a climate of fear, protection ofhuman rights becomes extraordinarilydifficult. It brings to the forefront thetension between the majoritarian principleof democratic rule and the humanitarianprinciple of protecting the powerlessand marginalised. In that setting, protectionof human rights presents its greatestchallenges.The maintenance of civil libertiesdepends on the delicate balancebetween the government’s authority andits self-restraint. That balance will becompromised if any of three conditionsare satisfied. The first is when the politicalopposition is either weak or absent.The second is when the press is weak orcompliant. And the third is when the lifeof the nation is at risk from civil disturbanceor external threat (whether real orimagined). The first two conditions haveexisted in Australia in varying degreesfor a decade. The third was delivered onSeptember 11, 2001.The terrorist attack on the UnitedStates was shocking. It transfixed theworld as the Twin Towers exploded andcollapsed in a giant cloud. The nightmareimage of the second plane finding its targetmay be the defining image of this newcentury.The response of western governmentsto September 11 might be the definingcharacteristic of the twenty-first century.Adequate protection of human rightsdepends on a number of things. First,Parliament must exercise restraint in legislatingwhere human rights are affected.They should recognize that human rightsare a basic assumption in democraticsystems, and that majoritarian rule doesnot justify the mistreatment of unpopularminorities.In the wake of September 11, ASIO’spowers have been greatly increased. Theynow have power to hold a person incommunicadofor a week, and force them toanswer questions on pain of five years’ jail.70Julian Burnside QC.The person need not be suspected of anyoffence.The Federal Police now have powerto obtain a secret order jailing a personfor up to a fortnight, without a trial andwithout the person having committed anyoffence. They can obtain a secret controlorder, placing a person under house arrestfor up to 12 months without access to telephoneor internet. In each case, the personaffected by the order is not allowedto know the evidence against them.These laws betray the most fundamentalassumptions of a democratic society.The protection of human rights alsodepends on the executive showingrestraint and decency in administeringlaws which have the potential toaffect human rights. In this, the HowardGovernment has a miserable record, arecord made all the worse by their hypocriticalmaundering about “family values”and a “fair go”.The idea of a fair go was nowhere tobe seen when Mr Ruddock instructed theDepartment of Immigration to argue thecase of Al Kateb. Mr Al Kateb had arrivedin Australia seeking asylum. He was heldin immigration detention. He was refuseda protection visa. He asked to be removedfrom Australia, because he found theWoomera detention centre unbearable.Unfortunately, he could not be removedbecause he is stateless — there is nocountry in the world to which he could bereturned. The Migration Act provides thata person who comes to Australia withouta visa must be detained and must remainin detention until they get a visa or untilthey are removed from Australia. This isthe mandatory detention regime. Peopleheld in detention have not committedany offence: they are held in high securityjails because an Act of Parliament ordersit.What of Mr Al Kateb? They refusedhim a visa, but could not remove himfrom Australia. The “fair go” HowardGovernment argued that Mr Al Katebcould be held in detention for the rest ofhis life if necessary. That argument wasfound by the High Court to be legally correctand constitutionally valid.It is deeply shocking that any governmentin a western democracy is preparedto argue for the right to jail a person forlife without trial, and without suspicionof any offence. If nothing else about theHoward Government is remembered, let italways be remembered that they arguedfor the right to jail an innocent person forlife.Family values cannot be reconciledwith the indefinite detention of refugeefamilies in conditions which drive childrento attempt suicide.ASIO has vast powers and seeks, whereverpossible, to avoid any scrutiny of itsactivity by Courts. Mahommad Sagar hasbeen held on Nauru by Australia for fiveyears, even though Australian officialsaccept that he is a refugee. He has beenadversely assessed by ASIO, and they