Human Rights - Refugees and Terrorists - What Rights?

John Bray Law Chapter Public Lecture

Delivered by the Hon John von Doussa, President, HREOC at the University of Adelaide, 11th March, 2005

It is a great pleasure to be speaking today with Judge Clifford Wallace. I had the pleasure of meeting him on several occasions at Judges' conferences in the Pacific. I was very sorry to miss him when he was in Adelaide in 2003.

Obviously the Judge will give a United States perspective of issues raised by this topic, and speak about the US policy at Guantanamo Bay. I will leave that to him. Remember there is one significant point of difference between our two systems. The US Constitution has entrenched rights, whereas Australia does not have a Bill of Rights.

Following the structure of the title for today I propose first to briefly state accepted human rights principles that provide the backdrop to today's forum; secondly to touch on shortcomings in Australia's responses to the influx of asylum seekers to our shores, and the declared war of terror; thirdly to contemplate why these responses depart from human rights principles; then to reflect on some consequence of these responses; and finally to turn to the really hard topic: What is necessary to influence change. While the central question posed for today is 'what rights', I hope I might also provide some answers to the even more fundamental question 'why rights'?

While there are a wide range of sources that might be called upon in determining what our 'human rights' are, a common starting point is what is often termed the 'International Bill of Rights, set out in three documents: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural rights. I will not list all the rights contained in those documents, but they include the right to life, liberty and security of person, the right not to be subjected to torture or to cruel, inhumane or degrading treatment, the right not to be subject to arbitrary arrest or detention, and to the right to be treated equally before the law - in other words to the benefit of the rule of law.

Fundamental to any understanding of human right is the principle that '"all human rights are inherent, inalienable, indivisible and universal. They are the birthright of all human beings, cannot be lost or taken away, and all are of equal importance and apply to all persons irrespective of race, sex, disability, language, religion, political or other opinion, national, social origin, age, property or other status'".

Interestingly, that description of the principle which I have just read is taken from the Australian National Framework for Human Rights - A National Action Plan, recently promulgated by the Australian Government and is said to be the principle which underlies Australia's human rights policy.

International law allows for derogation of some human rights when a public emergency threatens '"the life of the nation'" and the emergency has been publicly proclaimed. It has never been suggested that this exception has any application to the present debate.

Why then are we witnessing such things as asylum seeking children being locked up for extended periods in the face of the clear requirement of international law that detention of children shall be used only as a measure of last resort and then for the shortest possible time. Why are we seeing the prolonged executive detention of illegal non-citizens, the harsh conditions of detention, the restricted terms of temporary protection visas, and restricted right of access to the courts for review of executive decisions and so on.

As to Australia's internal response to the war on terror why does the law allow ASIO, our domestic intelligence agency, to obtain a warrant to secretly detain and hold in communicado a person for questioning for up to 7 days who is not even a suspect terrorist, but merely because the authorities have reached the conclusion that there are '"reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence'"; and why are the rights of detained persons to access lawyers, to their family, to the courts, and to the evidence against them curtailed?

In short, having regard to Australia's formal acceptance of the universality of human rights principles, why have these invasions of civil liberties, generally enjoyed in this land of the 'fair go'", come about?

The formal legal answer is that human rights recognised in international law only became part of the domestic law when and to the extent that parliament enacts those rights into the domestic law. Not all of the International Bill of Rights has been so enacted. Even in the case of human rights which have been adopted, they are, like native title rights, fragile as they may be extinguished by later inconsistent laws and executive action.

An individual has a limited right to complain to the United Nations Human Rights Committee about a breach of a human right after exhausting all avenues of redress under domestic law, but the findings of the Human Rights Committee are not enforceable, and the name and shame factor in the international arena has not caused Australia in the past to alter its stance on immigration detention.

We have no entrenched Bill of Rights. Attempts to attack the validity of laws that depart from human rights standards on that ground have been singularly unsuccessful. For example, in Al-Kateb v Goodwin [2004] HCA 37, the validity of sections of the Migration Act were held by a 4 to 3 majority, to permit the indefinite detention of a failed asylum seeker who wanted to leave Australia but in respect of whom no country would accept him. And in Wooley; Ex-parte Applicants M 276/2003 by their next friend GS [2004] HCA 49 the detention provisions were held to be valid in relation to children, notwithstanding that they contravened a host of internationally recognised human rights.

The Government's justification for these departures is straightforward.

The harsh requirements that attach to asylum seekers by reason of their statutory status as illegal non-citizens is said to be necessary to protect the integrity of Australia's humanitarian quota system, and to protect Australia from an unregulated influx of people, perhaps in large numbers, from the world's displaced populations.

In relation to the anti-terrorism laws, the government rightly emphasises that the safety of the general population is of paramount importance. Undoubtedly the human right of every individual to be kept safe from violence is fundamental. The government asserts that the anti-terrorism measures are a proportional and necessary response to existing threats.

For those disinclined to accept such justifications and who see the laws as an excessive response, the question remains: why did such oppressive laws ever get passed?

In looking for an answer we can recall that the government, with the support of the opposition, acted very swiftly and there was little concerted resistance from the public generally. The overall public sentiment was, at times, almost approaching a moral panic that was fuelled by some community leaders and some in the media. Much of the rhetoric in public discussion continues to demonise people seeking asylum and play to a fear of hordes from the north and their impact on our social welfare and health systems, housing, employment and so on were reignited, especially at the time of the Tampa crisis.

Anti-terrorism measures followed the tragic events of 11 September 2001, the Bali bombing and other acts of international terrorism. Anyone who matched the public perception of a terrorist was treated as a terrorist. To be Muslim was to be bad enough but to wear clothing like a hijab tended to confirm the inferred association beyond doubt. Everyone meeting the terrorist's description was demonised. In this pervading atmosphere of suspicion towards anyone who was different there was wide-spread support for the laws. Terrorists did not deserve human rights!

But now with the passage of time attitudes in the wider community seem to be changing. People are beginning to reflect on the consequences of the laws which were passed in the heat of the moment.

The plight of Mr Al-Kateb and others like him who have been in detention for years is becoming more widely known. So too are the conditions of detention. The recent stories about Cornelia Rau have served to re-enforce the revelations earlier made in the HREOC Report - The Last Resort - about children in detention and the injustice caused by a policy of mandatory detention. Presently we are hearing about Mr Qasim from Kashmir, who has been in detention for over 6 years.

There is growing community concern about the anti-terrorism measures that are now law in Australia. We read a lot about David Hicks and Mamdouh Habib who were, and in the case of Mr Hicks continue to be, detained under similar harsh measures. Stories are coming to light about the grossly unfair treatment of people who are picked up overseas as terrorists suspects but turn out to be innocent. I mention just one which was reported in the New York Times on 10 January on 2005. A German national, named Khaled el-Masri, on a long weekend holiday, was taken from a tourist bus on the Serbian Macedonian border. His passport was confiscated. Macedonian authorities turned him over to officials, believed to be from the US, who took him to a prison in Afghanistan where he was shackled and beaten, photographed nude and so on. His interrogators insisted he had ties with Al-Qaeda. After 5 months he was released without charge. His case was comprehensively investigated by the German authorities. Significant parts of it could be corroborated, and his story was believed by them. It seems he had a name similar to someone else.

This is an example of an apparently innocent person being in the wrong place at the wrong time. How many others will suffer the same fate? This is a pertinent question as Australia is in the throes of introducing a Movement Alert System to detect air travellers who are '"passengers of concern'".

And we have the spate of stories coming out of Iraq about humiliating and degrading acts of torture against detainees and the allegations of abuse of prisoners held at Guantanamo Bay.

In contemplating how to influence change in these laws, it is helpful to reflect on why community attitudes seem to be changing.

It seems to me that the most powerful contributor to changing attitudes has been the stories of individuals who have become the subject of the new regimes.

The publication of individual stories is leading people to sympathise with their plight. They are starting to enter into the suffering and despair of those who have been detained and humiliated. They are realising that these people are suffering as they would suffer. They are feeling indignity and beginning to understand that ill-treatment to one person brings shame to everyone.

So we have the President of the Law Council of Australia last month saying that Australia's failure to protest that its citizens have been held without charge or trial overseas leaves Australia open to international condemnation, and leaves us as Australian citizens, without faith in our Government.

In that vein, I return to Australia's Human Rights National Action Plan, and I read again from the Government's words: '"Australia takes the view that universal observance of human rights, both at home and abroad, helps to achieve a more stable and just international order, which benefits the security and prosperity of all nationals and individuals'".

Whilst Australia has regrettably wavered from this line, the line is internationally recognised as correct, and in the last year has been supported by formal statements from the United Nations, from the International Commission of Jurists, from the Advisory Council of Jurists, established by the Asia Pacific Forum of International Human Rights Institutions, and by human rights lawyers world-wide. Their common observation is that anti-terrorism laws that deny suspects fundamental human rights and the benefit of the rule of law undermine the very system of democracy that the laws are intended to protect. The same point was taken up by Lord Hoffman in the decision of the House of Lords in December 2004 that declared the indefinite detention without charge of foreign nationals suspected of having terrorist links a breach of the European Convention of Human Rights. He observed; '"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional and political values, comes not from terrorism but from laws such as these'".

We have heard often in recent times the mantra that 'the world changed on 11 September 2001'. But we must seriously question what this means. Changed to what? If the 'old rules' don't apply, what are the 'new rules', the new standards by which we are to judge the acceptable limits of human behaviour? If established human rights standards are to be discarded as out-of-date or somehow unsuited to these new times, with what are they to be replaced: the standards set by the terrorists we rightly condemn? Or are we to keep the old standards but only apply them to those who 'deserve' them on the basis of the Orwellian maxim that 'some are more equal than others'?

I would suggest that we must, in a time like this, reassert our respect for universal human rights and the limits they define.

Because if we fail to do so we drift inexorably into the same moral territory that is occupied by terrorists themselves.

It is said of laws that do not adhere to international human rights standards: '"Lawlessness breeds lawlessness'" or otherwise put '"abuse breeds abuse'".

One can only wonder what effect the treatment metered out to prisoners in Iraq by US and British troops will have on those of their own who are captured. Now we read in our papers that Australian troops are being hardened up for the risk of being caught and put through indignities like those committed in Abu Ghraib.

Already, research is coming to light that other foreign governments are using the revelations about Abu Ghraib to justify their own departures from human rights standards. In the last few days Russia has responded to the latest US State Department annual human rights report by saying that '"Unfortunately the contents-.again give grounds for saying that double standards are characteristic of the American approach to this important subject'".

It struck me as nothing short of amazing to hear President Bush in his inauguration speech in January say: '"We are led, by events and commonsense, to one conclusion: The survival of liberty in our land increasingly depends on the success of liberty in other lands. The best hope for peace in our world is the expansion of freedom in all the world'".

And later: '"Our nation relies on men and women who look after a neighbour and surround the lost with love. Americans, at our best value the life we see in one another, and must always remember that even the unwanted have worth-..'".

This was followed by Prime Minister Tony Blair at Davos on 26 January 2005 putting his gloss on the inauguration speech: '"America accepts that terrorism cannot be defeated by military might alone. The more people live under democracy, with human liberty intact, the less inclined they or their States will be to indulge terrorism or engage in it'".

The problem now is to get these leaders, and our leaders, to contemplate the scope of what they have asserted, and to recognise that they are making a plea for the international observance of the universality of human rights.

That brings me to the hard topic - how do we influence change?

How do we encourage our politicians and our opinion leaders in the media to do more than just assert their commitment to basic human rights principles but to adhere to them?.

This is not an easy task and will only be achieved by an educated public who can engage in debate and counter the voices of fear and prejudice that have overtaken many of the views of their fellow Australians.

This is indeed a big task. Ideally it must start in the home, must be addressed in the schools, and advocated in the adult community.

It is probably fair to say that information abounds, the problem is to interest people in it - children, students, adults, everyone.

Recent experience shows the value of individual stories, related narratives, in gaining attention.

The stories of those who have suffered under the laws must be told. Other people must be encouraged to empathise with the victims, to feel indignity at the unfairness of their situation, and to recognise that whilst it was them yesterday, tomorrow it might be some innocent person close to their own heart.

The media has a major role to play in broadcasting individuals' stories, but journalists need to get access to the stories to do so. They need stories, about events in detention centres, about the persecution which caused detainees to flee in the first place, and about their experiences after detention - whether in Australia or after being returned to their own country of fear. Here we can all help by engaging with those who have the stories, by listening, and by projecting the stories into other minds. We must continue to tackle our leaders to engage with these stories with all of their uncomfortable human detail and encourage recognition of the truth that our safety, our enjoyment of human rights, depends on everyone else being accorded their human rights.

May I conclude on that note with a short passage, which I think you will recognise, from John Donne who preached in the Chapel of Lincolns Inn more than four centuries ago:

'"No man is an Island, entire of it self; every man is a piece of the Continent, a part of the main;-any man's death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; it tolls for thee'".