Justice William Charles Crockett AO - Victorian Bar

efuse to tell him why. They argue thatthey should not have to reveal to him— or to anyone — what facts they tookinto account in deciding to assess himadversely. Although ASIO refuse to tellany other government why they haveadversely assessed Mohammad Sagar,Sweden has agreed to receive him. Theirdecision is an eloquent recognition of boththe cruelty and the stupidity of Australia’sposition.The protection of human rights alsodepends on the public remaining awareof the importance of human rights tothe health of our democracy. It is easyto support the idea of human rightsfor ourselves, our family and friends,our neighbours and so on. It is lesseasy to stand up for the rights of theunpopular, the marginal, those we fear orhate.Public sentiment about locking upinnocent men, women and children indetention centres has shifted over thepast few years. But the trigger for changewas the revelation that Cornelia Rau hadbeen wrongfully held in detention forabout a year. Public outrage seemed toreflect the perception that she was one of“us”, not one of “them”. Her rights matteredbut, by implication, the rights of theothers in detention did not.Mr Ruddock made himself popular duringthe 2001 election campaign by vilifyingrefugees. He created a climate in whichthey were seen — quite wrongly — as athreat to the community. When Howardand Ruddock lied about the so-called childrenoverboard affair, when they used thelanguage of “border protection” to justifythe Pacific Solution, they deliberately createda climate in which the public wereable to think that asylum seekers werepeople whose human rights did not countif we wanted to stay safe.That sort of thinking — so easily influencedby governments — is profoundlydangerous to the cause of human rights.The Howard Government has abandonedDavid Hicks. Several things areclear about the Hicks case. First, he is notalleged to have hurt anyone at all. Second,he has not broken the law of Australia,USA or Afghanistan. Third, the most seriousallegation against him is that, fightingwith the Taliban (then the lawful governmentof Afghanistan) he pointed a gun inthe direction of an invading force, as theAmerican troops were. It is not allegedthat he fired at them. Fourth, he has spentfive years in Guantanamo Bay, mostly insolitary confinement. Fifth, the treatmenthe has been subjected to in Guantanamobreaches the Geneva Convention concerningthe treatment of prisoners of war andit breaches Australian and US standardsfor the treatment of criminal suspects.Hicks now faces the prospect of a trialin front of a military tribunal which eventhe prosecutors have acknowledged willnot be a fair trial. Howard, Ruddock andDowner remain supremely unconcernedabout Hicks’ fate. They have done nothingat all to help him.The conduct of the HowardGovernment is impossible to reconcilewith the values and assumptions whichare basic to our democratic system. Byencouraging a climate of fear, the governmenthas greatly expanded its ownpowers at the cost of individual rightsand freedoms. By exploiting the climateof fear, the Government has been able toengage in terrible abuses of human rightswhich would not otherwise be tolerated,but they pass without complaint as “borderprotection” or the war on terror.The basic values of our democracy, sohard won, are always at risk. In a speechin Boston on 28 January 1852 WendellPhillips said:Eternal vigilance is the price of liberty— power is ever stealing from the many tothe few ... The hand entrusted with powerbecomes … the necessary enemy of thepeople. Only by continual oversight canthe democrat in office be prevented fromhardening into a despot …He might have been speaking of theHoward Government.The Victorian Government has beguna move in the opposite direction by passingthe The Charter of Human Rightsand Responsibilities. Whilst the Chartercannot affect Federal laws, it serves asa timely reminder that human rightsare fundamental. The Charter will affectthe way legislators and bureaucrats goabout their work; it will give the courtsthe power to identify legislation whichbreaches basic human rights and have theParliament consider whether it wishes topersist in those breaches. Its most powerfuleffect is that it puts the assumption ofhuman rights to the forefront: they will nolonger be an optional extra. In addition,it serves as an important reminder thathuman rights are for all people, not justour friends and family. The unpopular,the unworthy, the feared and despisedare also entitled to be treated as humanbeings, because they are.What is needed however is a FederalCharter of Rights. The major human rightsabuses in Australia are committed by theFederal Government: indefinite detentionof asylum seekers, even though they havecommitted no offence; secret jail orders;secret control orders; secret hearingsin which a person’s fate can be blightedforever.In December 2004 the House of Lordsdecided a case concerning UK anti-terroristlaws which allow terror suspectsto be held without trial indefinitely. By amajority of 8 to 1 they held that the lawimpermissibly breached the democraticright to liberty.Lord Hoffman said:The real threat to the life of the nation …comes not from terrorism but from lawssuch as these.The Law Lords recognised what thepublic have forgotten: that human rightsexist for the protection of everyone, and indoing so they also protect our basic values.When Howard or his ministers murmurcomforting words about values, they arelying. The case of Mr al Kateb, and DavidHicks; the treatment of Cornelia Rau andthe victims of the Pacific Solution and thehundreds of refugee children in detentioncamps: all these things tell you whatsort of people Howard and his ministersare. If they can mistreat one unpopulargroup, they will mistreat another, andanother.It is a matter of regret that the firstlaw officer of the country is a personwhose grasp of legal basics has been soblunted by politics. Ideally, the Attorney-General should try to ensure that law andjustice are synonymous. The possibilityof innocent people being held in executivedetention for life is something MrRuddock argued for. Asylum seekers heldin detention can be subjected to solitaryconfinement: not by virtue of any regulations,but at the whim of the executivegovernment through its private prisonoperator. Mr Ruddock has supported thissystem. All asylum seekers held in immigrationdetention are liable for the cost oftheir own detention, even if they are ultimatelyfound to be refugees. Mr Ruddockhas actively supported this.The laws which permit these things arenot merely unjust. They are a disgrace tothe nation and a stain on our history. MrRuddock still wears the badge of AmnestyInternational. Such open hypocrisy diminishesthe high office he occupies.Do not wait until it is your turn. Humanrights matter, especially in a climate offear.71