Margot Giblin listens to Julian Burnside
Q: Are you of the opinion, held by some others, that Philip Ruddock was once a nice enough bloke?
A: I am reminded, though I can’t think why, of the interchange between Christopher Hitchens and George Galloway in which the latter compared the post 9/11 transformation of Hitchens to that of a butterfly into a slug.
Julian Burnside: Do We Need a Bill of Rights?
The Tasmanian Peace Trust Annual Lecture
Sunday 17 August 08
Hobart Town Hall
THE 60th anniversary of the Universal Declaration of Human Rights comes up on December 10th this year and gives, said Burnside, a nice resonance to thinking about whether Australia needs a Bill of Rights.
We are talking about this at a Federal level, he said, but can take it for granted that it would include the states and territories.
It could be said that compared with Burma, Pakistan, Rwanda and the Sudan we’re not as bad, and so we could lapse into thinking we don’t need a Bill. Burnside reminded his audience of the genesis of the original declaration, the aftermath of World War 2 and in particular the opening up of Belsen. The resulting images and facts struck with such force that Eleanor Roosevelt and others determined on a Declaration of Rights.
The question has been asked, said Burnside, why can’t we prosecute our Government for human rights abuses? The Declaration is an international treaty, not ratified by the Federal government as part of domestic law. This is the case with most international treaties. Australia only ratified the treaty on genocide because that was a condition of being part of the International Court of Justice.
The way some people behave, even while arguing for human rights, is a problem, Burnside continued.
When the USA was helping put together the Declaration of Human Rights it was also party to Unit 731, a medical scientific research centre in Northern China.
Burnside asked how many in the audience had heard of the unit. Few hands were raised – and this in an audience of people committed to human rights. Burnside was not surprised. Set up in absolute secrecy by the Japanese, it was, he said, as frightening as anything devised by Mengele.
Its activities included freezing people to death in order to observe changes in cell structure. Pregnant women were poisoned and dissected, alive, to observe the effects on the foetus.
Unit731 was guaranteed immunity from prosecution by America in exchange for the results of its experiments.
If you ask people whether human rights matter, Burnside went on, the answer will be yes. Interrogate them a bit further. Ask whether it’s all right then, to have people in detention centres behind razor wire. The answer will be, ‘Well it’s our human rights that matter. Those others aren’t quite human in the way we are.’
This, said Burnside, is incredibly dangerous thinking. Human rights are given because you are human. Not because you’re nice, you’re white or you’re here.
In relation to the Stolen Generations he said, if the cases had involved white children the public response would have been different. John Howard saw Pauline Hanson’s scratching at that part of our outlook which couples racism with fear of outsiders as a political opportunity.
Fraser, said Burnside, managed to quietly shepherd 20,000 South East Asian boat people, per year, into Australia with no fuss.
Howard, while allowing only 1,000 per year, from Iran, Iraq and Sri Lanka fostered enormous noise around the notions of queue jumping which stirred up hatred. The government could then get away with treating these people any way they liked. Witness Ruddock’s ‘family friendly’ detention centre.
When Burnside asked Philippa Goodwin, who was in charge of Onshore Compliance, why centre plans described an electric fence around it as ‘courtesy fencing’ her reply was that it was not an electric fence but an energised fence.
Individual cases of abuse in Australian detention centres like Baxter, perpetrated against people innocent of any offence, were proof, said Burnside, that we need protection from bureaucrats. The so called anti terrorism laws, he said, have produced extraordinary results such as the powers of ASIO to detain and question those it believes may have committed an offence, with severe penalties for individuals revealing any information relating to their detention. The ramifications, particularly in cases of mistaken identity, are worrying.
Beyond the worst aspects of anti terrorism laws Burnside urged his audience to remember the overarching shadow of Guantanamo Bay, our new legal Black Hole. Terrorism is not, he said, a new thing. It did not start with 9/11. That’s when it came to America.
Some will say that a Bill of Rights isn’t necessary, but it is clear now that governments will act in ways we had thought impossible.
Others will say that Zimbabwe or North Korea have Bills of Rights that make no difference. Burnside agreed that by themselves Rights do nothing. A strong independent judicial system is also needed. Australia has that and with it you can stop governments in their tracks.
John Howard, said Burnside, inadvertently put forward the strongest argument for a Bill of Rights when he said ‘it would interfere with the way government does business’.
Of the objection that a Bill of Rights would transfer power from politicians to judges, Burnside referred to the present situation in which courts are already the umpires (restricted by content) of legislation and guardians against the excesses of the executive.
As for the argument that if you don’t like the present government you can vote them out Burnside raised the spectre of a government that might, overnight, declare that all blue eyed babies must be killed in 24 hours. He added that governments don’t represent unpopular minorities, whose protection would be assured in a Bill of Rights.
A Bill of Rights would be a lawyers’ picnic, according to some. Not much of a picnic, says Julian Burnside. It doesn’t pay. It would not be a good picnic.
Listening to those objecting to a Bill of Rights Burnside points to the lack clear definition. For instance is it a constitutional or statutory bill that is being discussed? The former can only be got rid of by referendum so let’s not worry about aiming for that, he said. A statutory model remains useful. On the question of whether it should be strong (with penalties for breaking it) or weak (recognised in law making and judging) Burnside advocates going for the latter with its important gravitational influence.
The rights we take for granted, said Burnside, aren’t presently protected by law.
We’ve been through a tough patch which has persuaded us we need a Bill of Rights so do it now with a Government that’s likely to do it. A bad Government never will.
Questions were taken.
Q: Why would a statement of compliance be more powerful than parliamentary debate?
A: Because recognition is important. We can say ‘we are now eroding this particular right’. Debate in Parliament is almost irrelevant. Senate committees seem to be the only ones doing any real work.
Q: Would a federal Bill of Rights have prevented the Northern Territory Intervention?
A:No, it could be circumvented in the same way they circumvented the Racial Discrimination Act – but at least it forces a public reason to be given for non-compliance. Better to have some protection than none at all – and it would have altered some past Federal decisions.
Q: Why limit this to humans? Shouldn’t we protect non human animals?
A: This important question is outside the area of my active careful thinking. You might ask Peter Singer.
Q: Why doesn’t Guantanamo Bay come under the reach of the US Supreme Court?
A: It kind of does, actually – and it’s a compliment to the US constitution that Bush initially intended to get outside the country to avoid it. It has frustrated the US government several times by limiting excesses of executive power.
Q: Should we talk about citizens and non citizens in relation to a Bill of Rights?
A: Talk about humans.
Q: What is the prospect of Rudd removing the anti terrorism legislation?
A: None. He supported it at the time saying he ‘was not soft on terrorism’. But if we had a Bill of Rights the Government would have to explain why it was necessary to erode its powers and how it makes us safer to have ASIO able to disappear some-one off the street. The reality is that we are divided on this issue. It’ll never affect us and we benefit from it. It’s the Muslim population that feels the sting. We’ve been sold a pup. If it had affected us all, if there had been CCTV in every room in every home, we’d be united.
Q: Why aren’t International Treaties ratified to be reflected in domestic law?
A: Because we don’t really have a taste for it – witness our reluctance to take on the crime of genocide.
Q: Why do you think Victoria and the ACT have Human Rights Acts when there is little on the horizon elsewhere in the nation?
New South Wales is conservative. Western Australia’s Cheney Inquiry decided no. Elsewhere, I don’t know. There are powerful voices against it. Pell spoke to the Sydney Institute about a ‘hotbed of leftist activity’. His arguments were crap. But it’s our own fault if we haven’t explained what we want. Pell was arguing against the USA Bill of Rights and that’s not what we want.
Q: Is mental illness a concern in all this?
A: Yes. But remember, no rights are absolute. They will yield to an equivalent conflict of interest. Boundaries can be adjusted. The right to freedom is lost if it’s up against breaking the law, or containing contagious disease, or inability to function independently in society. The question should be how to adjust human rights in a rational way to deal with this.
Q: Are you of the opinion, held by some others, that Philip Ruddock was once a nice enough bloke?
A: I am reminded, though I can’t think why, of the interchange between Christopher Hitchens and George Galloway in which the latter compared the post 9/11 transformation of Hitchens to that of a butterfly into a slug.
