31st Annual AFS Remembrance Day Dinner

Author: Jon Stanhope is Chief Minister of the Australian Capital Territory

I acknowledge the traditional owners of the land we are meeting on, the Wurundjeri people of the Kulin Nations. I respect their continuing culture and the contribution they make to the life of this area.

This time of the year has special significance for many on the left of politics and I am sure there are a few here tonight for whom - as for me - this time of year, 31 years ago, was a galvanising moment.

The dismissal of the Whitlam Government was the event that led me, not long afterwards, to the Labor Party.

Perhaps I might have ended up there eventually, even without a nudge of such baptismal proportions.

I saw the Dismissal primarily in terms of injustice, and it seems to me that our capacity as individuals to react to injustice is never keener or quicker than when we carry an old sense of guilt or self-reproach for having stood in silence and witnessed injustice in the past.

For myself, the conviction that culminated, in my 20s, in my joining the Labor Party, began a decade earlier, as a teenager in country NSW.

I was conscious, over the course of my schooling, that black faces – the faces of Bega’s Aboriginal children – vanished without comment one by one from the classroom, until in my final few years of schooling there were no Aboriginal students in my classes or in my school at all.

No-one, in those days, said or did anything about this fact of life – or not that I could see. It was not reported in the local media, or agitated at meetings of the P&C Council. It was not discussed across my kitchen table.

Certainly I said and did nothing – though I saw and wondered. And even now I reproach myself and those around me for that easy acceptance of inequality, the complacency with which we have condemned generations of Indigenous Australians to lower-skilled jobs, lower levels of prosperity, lowered opportunities, lowered expectations.

If it took me a decade or so to turn that self-reproach into action, I sense that the leisurely pace of my political awakening would be readily understood by the Fabians, who have never been exactly urgent or revolutionary.

As the playwright Kate Fox put it, parodying the British Fabians in her 2004 play Watching the English:

"What do we want?"

"Gradual change!"

"When do we want it?"

"In due course!"

In fact, one of the most admirable qualities of the Fabians is their insistence on thoughtful research and deep debate – their determination to take their time and to influence public affairs in a manner that would be incomprehensible to a radio shock jock, or his listeners, with their fingers hovering above the speed dial and an instant opinion on everything.

The Fabians’ measured approach to policy change is particularly appealing at a time when politicians and opinion leaders in all fields are under fierce pressure to act immediately and on the basis of the anecdotal, to formulate policy reflexively, to feed and fatten anxiety, rather than to shine a light upon it and dispel it.

We see it in the proliferation of knee-jerk legislation drafted in response to single, heinous crimes, often against children. We see the blossoming of pieces of law like roadside memorials – Megan’s Law, Mike’s Law – laws that appeal to our sense of outrage and grief, rather than our sense of proportionality and justice.

And we see this knee-jerk approach at its most exaggerated, and its most dangerous, in the way we have waged the war on terror.

In no area of policy development or public discourse in recent times has the urge to legislate by animal reflex been more compelling. At no time has the temptation to ostracise, marginalise and scapegoat others been greater, than as we make the policy decisions we hope will minimise our exposure to terrorism.

And once begun, the process is self-perpetuating.

Because the policy decisions we take so often require new limits on individual rights and liberties, we are almost duty-bound to justify these actions by pointing to the putative terrorist in our midst.

Of course, once the community has been convinced of the existence of this real and present danger, arguing for even more profound inroads into rights and liberties becomes simple. The community is almost clamouring to be saved from itself.

One of the hardest messages to get across, in such an atmosphere, is that it is precisely at times such as these that codified human rights and civil liberties become most essential.

When the nations of the world came together to compile an agreed list of fundamental human rights, back in the 1940s, they weren't devising a charter to guide the behaviour of humanity in the good times, in times of peace and plenty.

The Universal Declaration wasn't a code drawn up to guide humanity at its best and most civil, but at its most degraded and desperate. Its catalyst – and the catalyst for the later international human-rights conventions of the 20 th century - was global war, in particular, the Holocaust.

These covenants are documents to cleave to, to hold up, to read and reflect upon at the worst of times, when the temptation to blame and victimise is most heightened. Because it is then that human rights and basic liberties become most precious, and their observance most precarious.

For those with executive power, of course, such articulated, black-letter rights can become mighty inconvenient, which is perhaps why we ought perhaps not be terribly surprised that a centrist like our Prime Minister, John Howard, is so opposed to small-l liberal values. We in the ACT certainly weren’t surprised that he reacted to the ACT’s introduction of a Human Rights Act – Australia’s first, but not its last, bill of rights – so negatively, openly canvassing the option of overturning it.

The prevailing view within the federal Coalition – I won’t call it the only view - is that a combination of the Constitution, the rule of law, the common law, an independent judiciary, a robust parliamentary system and a free press are sufficient safeguards against the abuse of rights and liberties. We don’t need an explicit charter, the Federal Government says, because the checks and balances are in place.

The difficulty for some of us observing the tremors and vibrations running through these pillars of protection, is that the earth is being deliberately dug from beneath them.

What good have the protections enumerated by Mr Howard done David Hicks, over the past five years?

What role can a free press and an independent judiciary play in exposing the potential deficiencies of, say, a preventative detention order, when in some jurisdictions the judiciary is essentially out of the loop, and the press is denied access even to the simple fact that an order has been imposed?

A journalistic sleuth, working for the right media boss, might uncover the existence of such an order, but that scarcely qualifies as a government-endorsed guarantee of natural justice and the rule of law.

Nor is it accurate to say that even the most free and robust press will always act to safeguard rights, given that those whose rights are infringed or abused in any community tend to be members of minorities.

How well has our robust, free media safeguarded the basic rights and interests of Indigenous Australians, during the recent coverage of the despair and dysfunction in Mutitjulu?

How has our fair and free media served Australian Muslims since Sheik al-Hilali made his appallingly distasteful comments on sexual assault – comments, it must be said, not dissimilar to those made over the years by more than one white, male, middle-aged, non-Muslim, Anglo-Saxon Australian judge?

A couple of years ago the journalist Peter Manning decided to take a closer look at the coverage Sydney’s two daily papers – one a tabloid, the other a broadsheet, gave to Muslim affairs.

He searched 12,000 newspaper articles containing keywords like “Arab”, and “Muslim”, dating from the year before the September 2001 terrorist attacks in the United States, and the year following those attacks.

Bear in mind that these two years were the years of Tampa, and of high-profile gang rapes involving young Lebanese-Australian men.

Bear in mind too that these were an election year federally, and the year in which Australia was busily locking itself into an invasion of Iraq.

Among other things, Manning found that the word most frequently thrown into a sentence beside the word “Muslim”, during these delicate and fraught couple of years, was the word “terrorist”.

Indeed, he found that on occasions when the word "asylum-seeker" was used, it was in proximity to the word "terrorist" in about 50% of cases.

There will always be a ready audience for reportage that elevates confrontation and adversity. As Ernestine Hill observed of news reportage, as long ago as the 1930s, "the worse it is, the better it is".

There is always a readership willing to believe that Muslims, unlike “us”, would be prepared to throw their children to the sharks.

There is always a readership willing to make an issue out of the fact that some Muslims can’t speak English — when almost all of us in this polyglot nation know of someone’s Greek grandmother or someone’s Chinese neighbour, or someone’s Serbian housebuilder, incapable, after 25 years in the country, of more than a few sentences in English.

A free and robust media is a lot of things - and a lot of good things - but it has never been – and would never claim to be – a passionate defender of human rights.

Nor, when it comes to it, would those other pillars invoked by critics of bills of rights.

The rule of law cannot protect that which is not enshrined in legislation or the Constitution.

The common law tradition is powerless against that which is so enshrined, if that statute deliberately derogates from human-rights principles.

An independent judiciary can do only so much as the interpreter of the law. Just this morning I read about the High Court’s ruling that the Federal Government was within its rights to deport on character grounds a 32-year-old man who has lived in Australia since he was 27 days old, who speaks only English, who is – in every way that matters, in every way that could matter, one of us. To the extent that he is a challenging individual, he is our challenge. Or he should be.

So how well do other pillars of protection stack up?

The Constitution is silent on almost all aspects of human rights, though our independent judiciary has ventured to deduce a few implied rights.

A vigorous parliamentary system is a partial safeguard, but as we saw during the counter-terrorism debate of last year, even the passionate representations of a Senate committee dominated by Coalition members were unable to convince the Government that its laws were onerous and unnecessary.

To whom must we turn, then?

The ACT Human Rights Act goes some way to compensating for the deficiencies of these other protective pillars, because it requires that ACT law – all ACT law - must be read and given effect in a way which is compatible with human rights.

The discovery and interpretation of these rights can be made through the consideration not just of the Act itself, but international law and the judgments of foreign and international courts and tribunals.

It was Jeremy Bentham who attempted to demystify the common law with his bold statement that 'Laws are commands of human beings and there is no necessary connection between law and morals'.

Law, he argued, created rights. Rights did not give birth to law.

The logical corollary is that rights are capable of redefinition or extension or even contraction over time. As indeed they are, with many nations that began by pledging themselves to uphold civil and political rights now looking afresh at economic, social and cultural rights – such as the right to housing, the right to health care, the right to education.

A glance back at our post-war history shows clearly that over time our own Australian notions of acceptability and unacceptability have not been static.

 

It was not until the 1960s that Indigenous Australians were given the vote. And, as I saw for myself, as a teenager in those days, getting the vote did not equate to getting an education, getting a job or getting political power.

 

It wasn’t until the 1990s that native title was recognised and inquiries into Aboriginal deaths in custody and the removal of Indigenous children confronted us with the proof of the devastating impact of our official policies on this land’s first inhabitants.

 

Post-war migration, and the reality – and the explicit recognition of - multiculturalism brought greater awareness of diversity and greater tolerance.

 

In the 1970s and 80s we delivered nominally equal pay for women. Anti-discrimination laws were drafted.

Now, in the opening decade of the 21 st century, our ideas are again being refined, our definition of what constitute basic rights is being expanded.

In the ACT, the question of extending the Human Rights Act to incorporate economic social and cultural rights was explored as part of the 12-month review of the legislation.

The problem is that even as such debates are being had, elsewhere one is likely to see redefinition occurring at the other extreme, with Australian governments, State and Federal, seeking to curtail, through re-definition, the rights we thought we already had.

Thus we hear politicians speaking of the over-riding ‘right not to be blown up by a suicide bomber’, or the reasonableness of relinquishing our right to free speech so that pamphleteers may not preach their poison.

We are told that if we have nothing to hide, we need not fear suspension of the rule of law or the right to a fair trial.

We are told that if it makes the job of the police easier we ought to surrender the right to judicial appeal.

We are encouraged to believe that robust debate of the kind we have engaged in for decades, can suddenly amount to sedition.

And while this gradual erosion and paring away of liberties is most pronounced in relation to terrorism, it is a trend that, if one looks carefully, can be discerned in more and more areas of the law.

We see it in the passage through the Senate just last night of legislation amending the Crimes Act so that the Commonwealth can dispense with tiresome consideration of customary law as a mitigating factor, in cases involving Indigenous offenders.

We can see it in moves to deny prisoners the right to vote, on the grounds that because a judge has deprived them temporarily of their right to liberty, they must also be stripped of every other human right – including the right to vote for or against those who make the laws that keep them behind bars.

We observe the same contraction of rights in our attempts to keep the processing of asylum-seekers offshore, out of sight of the nearest television camera, and out of mind.

We see it in our federal attorney-general, arguing the semantics of sleep deprivation and the definition of torture – one of the very few human rights from which the nations of the world have consistently been warned they cannot derogate, even in times of war. Now, however, these lines seem to be blurring. Now there is torture, and torture ‘lite’.

We see the same smudging of boundaries in the equivocation of our opinion leaders over the death penalty – most recently in the wake of the sentence handed down on Saddam Hussein.

Scarcely a politician in this country purposely enters into this debate – except of course when it is an Australian on death row. Then, the hand-wringing knows no limits. But of course by then, the equivocation displayed on the other 364 days of the year has had its effect. No-one will listen. Why would they?

The bizarre thing is that those most genuinely revolted by violence, those who truly believe that capital punishment is always wrong, at any time, for any crime, for any criminal, and who don’t budge even in the case of a Saddam or an Amrozi, are accused of being apologists for terrorists.

Elsewhere too, long-held principles are being eroded or squeezed.

We see the push, nationally, to dispense with the long-held, consciously-held principle of double jeopardy, on the confected grounds that new technologies such as genetic fingerprinting open up new avenues for the discovery of fresh evidence, years after a trial and acquittal.

You only have to ponder this claim for a fraction of a second to realize that there has always been a capacity for new evidence to emerge, new witnesses to come forward, a long-lost weapon to be located.

Nothing has changed - except perhaps the willingness of governments to relinquish a legal principle designed to protect individuals from the power and vengeance of the state. That is what the double jeopardy rule is for, and the need for such a protection has not diminished. Just ask Jack Thomas.

And if you need further proof that a spirit of anti-liberalism has been pinched into wakefulness over the past decade, one need look no further than your national capital.

The Federal Government never made good on its threat to overturn the ACT Human Rights Act, but it resorted to the most undemocratic exercise of executive fiat just a few months ago to ensure that same-sex couples in the ACT cannot be accorded equality in the eyes of the law with their heterosexual neighbours, cannot openly celebrate the strength of their relationships.

It goes without saying that there has been barely a raised voice or a shaken fist over any of these isolated incidents.

The decision by COAG on customary law raised the nation’s blood pressure by about the same number of points as the shameful abolition of ATSIC a year earlier.

There was no widespread outrage at the unprecedented interference in the right of a sovereign parliament to legislate on civil unions.

Barely a murmur was uttered at the plan to rethink the double jeopardy rule – after all, who in their right minds would fly to the defence of murderers and paedophiles?

And who would deny the Government the right to indulge in a little sleep deprivation – a very little bit – if it meant wringing vital information from terrorists?

You will see the pattern emerging here: criminals, terrorists, homosexuals, Aborigines, asylum-seekers – if you want to erode liberties, start with minorities. Start with those already at the margins and work your way in.

And to smooth the way, start a gratuitous culture war, start a history war, have a few Ministers revive the spectre of reds under the bed and throw in a confected debate over the future of the term “multicultural”.

At such a time as this, in such an atmosphere of antipathy to individual liberties, it might have been imagined that any extension of human-rights law in this country was unlikely.

Victoria ’s recent enactment of its own bill of rights was therefore not only immensely heartening, but bold. Other jurisdictions are in varying stages of inquiry in relation to state-based charters. We are getting our Australian bill of rights – by stealth.

Australia's signing of the International Covenant on Civil and Political Rights was one of the first acts of the Whitlam Government in 1972.

It was a Liberal Government – that of Malcolm Fraser, in 1980 - that ratified the treaty and made it binding on Australia.

One of the final acts of the Hawke-Keating Labor Government was to recognise the competence of the UN Human Rights Committee to hear from Australians who believe their rights under the Covenant have been breached.

I have absolutely no doubt that many Australians feel that their human rights are adequately protected against arbitrary government action.

The fact remains that most of these rights are not listed anywhere.

They are not protected by the Constitution. They can be blithely over-ridden by legislation or sanctioned practice. The judiciary may be powerless to uphold them, the parliament may go unheeded, and the media may be unwilling.

For white, smart, male, educated, employed, sane, able-bodied heterosexuals, an awareness of this deficiency may never intrude.

But a fall, a disease, a car crash, a mental breakdown, a financial disaster, a forced redundancy or just the march of years can turn any of us into a member of a minority, a person whose basic human rights are vulnerable to abuse.

I don’t mean to suggest that we ought to support a bill of rights for reasons of self-interest. I prefer that an awareness of our own potential vulnerability might open our eyes to the risk – the real, actual, current risk - confronted by others.

Thank you for giving me the opportunity to join you this evening.

It is quite something that in these times we have places like Victoria prepared to forge ahead with human-rights law, even in a climate of confected fear and mistrust.

And it is quite something that at such a time we can still turn to the Fabians, the oldest political think tank in the country, to urge us forward – slowly, cautiously.

Thank you.

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