One of Australia’s leading barristers, Julian Burnside QC, mounts a blistering attack on Australia’s media, accusing it of refusing to report the government’s escalating atrocities. He can’t even get publicity for his argument that Ruddock – recently appointed Australia’s first law officer without a murmour of protest from the mainstream media – could be charged under Australian law with crimes against humanity. Apparently, according to one editor, that’s not ‘interesting’. This is a part of a speech Julian gave in Sydney on Friday night at the opening of the Sydney University of Technology’s conference on ‘the public’s right to know’.

 

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Australia’s crimes against humanity not ‘interesting’ to the media

by Julian Burnside

On World Refugee Day, I gave a speech at a lunch in the Victorian Parliamentary dining room. During that speech, I made the following point. In 2002 Australia, along with more than 80 other nations, acceded to the Rome statute by which the International Criminal Court was created. The court is the first permanent court ever established with jurisdiction to try war crimes, crimes against humanity and crimes of genocide – regardless of the nationality of the perpetrators and regardless of the place where the offences occurred.

As part of the process of implementing the International Criminal Court regime, Australia has introduced into its own domestic law a series of offences which mirror precisely the offences over which the International Criminal Court has jurisdiction. So, for the first time since Federation, the Commonwealth of Australia now recognised genocide as a crime and now recognises various war crimes and crimes against humanity.

The Australian Criminal Code now recognises various acts as constituting crimes against humanity. One is of particular significance:

268.12 Crime against humanity – imprisonment or other severe deprivation of physical liberty

(1) A person (the perpetrator) commits an offence if:

(a) the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and

(b) the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and

(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty: Imprisonment for 17 years.

The elements of this offence are relatively simple:

1. The perpetrator imprisons one or more persons;

2. That conduct violates Article 9 of the ICCPR;

3. The conduct is committed knowingly as part of a systematic attack directed against a civilian population.

Australia’s system of mandatory, indefinite detention appears to satisfy each of the elements of that crime. The government imprisons asylum seekers. The United Nations Working Group on Arbitrary Detention has found that the system violates Article 9 of the ICCPR. The conduct is done deliberate, and is part of a systematic attack directed against that cohort who arrive in Australia without papers and seek asylum. A representative of the International Criminal Court has expressed privately the view that asylum seekers as a group can readily be regarded as “a civilian population”.

A careful analysis of the criminal code therefore suggests that Mr Ruddock and Mr Howard are guilty of crimes against humanity by virtue of their imprisonment of asylum seekers.

A journalist from The Age asked me for a copy of this analysis. I provided it. It is not complex. A few days later, he contacted me rather sheepishly and said that they did not run it because “the editor did not think it was interesting enough”. (Margo: Webdiary published the speech at Australian crimes against humanity.)

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When a person ultimately fails in a claim for a protection visa, the Migration Act requires that he or she be “removed from Australia”. In practice, that often means that they will be returned to their country of origin.

At the present time there are approximately 200 Iranian asylum seekers in Australia’s detention centres who have been refused protection visas. A number of those people live in genuine terror of the prospect of being returned to Iran. The reason for their terror is not difficult to find. Many of them have embraced Christianity, and apostasy is a very serious offence in Iran. Others of them belong to minor religious groups whose members are regularly subjected to terrible treatment in Iran. Recent reports on conditions in Iranian prisons make it clear that prisoners in Iran are treated with unrivalled cruelty: torture is standard, disappearances and murders are common.

I have in my possession a video tape, smuggled out of Iran, which illustrates these things, and incidentally reminds us that most Australians simply cannot imagine the conditions which cause people to flee their country and seek asylum elsewhere. The video is shot in a medium size room. On one side of the room are two men who look like officials. They are reading in a flat, bureaucratic manner from a lengthy document. Keeping apart from them, and some distance away, is a group of five or six people who look as though they may be friends, or members of a family. On the opposite side of the room a man lies on a table, facing the ceiling. For the most part, the camera – handheld and grainy, but with the official Iranian watermark in the bottom right-hand corner – concentrates on the officials and their reading. At one point the camera swings to the family group, who look increasingly distressed and agitated. It swings to the man on the table who also looks distressed and sits up, only to be pulled down again by two large men standing beside him. The camera then concentrates on the officials and their reading until eventually the camera swings around to the man on the table and for the next few minutes we watch as they use forceps and a scalpel to gouge out his eyes.

I cannot adequately convey the horror of this tape. Its dull bureaucratic banality, coupled with the fact that it is real and not a Hollywood special effect, combine to make it the most shocking thing I’ve ever witnessed. Apart from this tape, we know that prisoners in Iran are beaten, tortured, mistreated and killed.

An Iranian whose claim for asylum had been rejected lives in fear of return to these conditions. He applied to the court for orders preventing the Government from returning him to Iran. The case theory was simple: the power to remove a person from Australia does not go so far as allowing the Government to send him to a place where he faces torture or death.

The Government sought to strike out the claim without a trial on the facts. When a party to litigation seeks to strike out the claim on that basis, they assume all the alleged facts to be true, and argue that those facts have no legal consequences. So, as in the Woomera escapees’ case, the Government argued on the basis of facts which were to be assumed. The government’s argument was this: It does not matter that he will be killed when he is returned; it does not matter that he will be tortured when he is returned, nevertheless the Government has the power and the obligation to return him to the place where that will happen. The press shows no discernible interest in these matters, but it amounts to nothing less than our government actively contending for the inevitable torture or death of a human being.

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Occasionally Christopher Pearson’s views provoke me. Recently he went a bit far, and I was prompted to write a short piece in reply. Here is what I wrote:

Christopher Pearson was at his chirpy, hyperbolic best as he wrote of Carmen Lawrence (Weekend Australian Sept 27-28 ‘The Queen of Labor Follies’). Always dazzling in the cause he serves, he skilfully propped up the Liberal party’s refugee policy by attacking one of its most cogent critics.

He slipped up on only three points. First, he turned Steve Bracks’ comment on her: “Steve Bracks did us all a service noting that Lawrence’s ungovernable sense of outrage at the mandatory detention of illegal immigrants smacked of hypocrisy: ‘I mean, she was premier of a regime that had mandatory sentencing for young people with three strikes and you are out.'”

Christopher Pearson is, by all accounts, intelligent and well-informed. Clearly, he knows that asylum seekers coming to Australia without papers do NOT commit any offence against Australian law. Calling them “illegal immigrants” is careless. To equate mandatory detention of innocent people with mandatory sentencing of people convicted of an offence is dishonest. But if that is not Pearson’s purpose, what point was he making? (For the record, I do not agree with mandatory sentencing, but it is a different issue).

Second, Pearson splutters in hope that The 7.30 Report “will retrieve the file footage of Lawrence’s former cabinet colleagues in Perth giving their recollections of what she said and knew, and when?” She was tried and acquitted. Mr Pearson is less eager to remind us of the lies told by his friends in government concerning children overboard, ethanol, weapons of mass destruction. Is the memory too painful? And don’t overlook the grand lie on which the Howard ministry justify indefinite mandatory detention: that asylum seekers are “illegal”.

If Pearson is making a point about probity, he really should look closer to home.

Finally, the well-informed Mr Pearson characterises Dr Lawrence’s criticism of mandatory detention as “shrill cant”. Perhaps he thinks mandatory detention is a good thing. But, well-informed though he may be, he has overlooked a crucial feature of the mandatory detention regime: it constitutes a crime against humanity. Before Pearson bustles in to brand that comment as hysterical, shrill or lunatic, let him look at s268.12 of the Commonwealth Criminal Code. It defines the offence of “crime against humanity – imprisonment”.

[Here I set out the analysis noted above].

By our own legislative standards, our mandatory detention system amounts to a serious crime against humanity. Mr Howard and (until the cabinet reshuffle) Mr Ruddock appear to have committed that crime persistently and with determination. These are much more serious than the matters for which Dr Lawrence was acquitted.

Let Mr Pearson show my analysis wrong. Let Mr Howard or Mr Ruddock do likewise.

Or perhaps Mr Pearson can explain to us why it is acceptable for a government to commit crimes against humanity, and explain why it is ‘folly’ to criticise the commission of that crime.

Tragically, it is unlikely that charges will be laid. The only person who can bring charges is the Attorney General: now that Mr Ruddock occupies that responsible office, there is not much cause to hope that he will investigate his own past misdeeds.

Perhaps it will all sink into the pool of public indifference, as we pretend that asylum seekers are not really human.

I submitted the piece: I thought it passably written, and the subject is important. The Australian has not published it. Perhaps space is a problem; perhaps the rugby World Cup is more significant; or perhaps our press have truly failed us.

Let us be absolutely clear about this: Australia treats asylum seekers abominably – we imprison them indefinitely, we torment them, we are willing to return them to torture or death. Our treatment of them constitutes a grave crime against our own laws: but the mainstream press is too frightened, too weak, too indolent or too stupid to bother reporting the fact.

If the tragedy of our present regime is told dispassionately decades from now, the silence of the press will be seen as part of our national disgrace.

A speech at Parliament House, Victoria on World Refugee Day 2003, first published at Scatt

The universal declaration of human rights is the most widely accepted international convention in human history. Most countries in the world are parties to it. Article 14 of the universal declaration of human rights provides that every person has a right to seek asylum in any territory to which they can gain access. Despite that almost universally accepted norm, when a person arrives in Australia and seeks asylum, we lock them up. We lock them up indefinitely and in conditions of the utmost harshness.

The Migration Act provides for the detention of such people until they are either given a visa or removed from Australia. In practice, this means that human beings men, women and children innocent of any crime are locked up for months, and in many cases years.

They are held in conditions of shocking harshness. The United Nations Human Rights Commission has described conditions in Australia’s detention centres as “offensive to human dignity”. The United Nations Working Group on Arbitrary Detention has described Australia’s detention centres as “worse than prisons” and observed “alarming levels of self-harm”. Furthermore, they have found that the detention of asylum seekers in Australia contravenes Article 9 of the International Covenant on Civil and Political Rights, which bans arbitrary detention.

The Delegate of the United Nations Human Rights Commissioner who visited Woomera in 2002 described it as “a great human tragedy”. Human Rights Watch and Amnesty International have repeatedly criticised Australia’s policy of mandatory detention and the conditions in which people are held in detention.

In short, every responsible human rights organisation in the world has condemned Australia’s treatment of asylum seekers. Only the Australian government and the Australian public are untroubled by our treatment of innocent, traumatised people who seek our help.

The matter reached an extreme during the Tampa “crisis”. The rhetoric of the Federal Government at that time came to this: that Australia had a sovereign right to protect its borders; that it had a right to decide who came into Australia and the circumstances in which they would come; that the Captain of the Tampa was threatening to infringe Australia’s sovereign rights, and that the civilised nations of the world supported Australia’s firm but principled stand. That was the rhetoric which helped the Howard Government win the November 2001 election.

The truth, of course, was very different. The Captain of the Tampa followed the written and unwritten law of the sea: he rescued people in distress and took them to the nearest place of safety, Christmas Island. For his efforts, Captain Arne Rinnan received the highest civil honour in Norway; his ship received commendations from mercantile and shipping organisations around the world; all the companies who had cargo on Tampa congratulated Captain Rinnan for the stand he took, even though their cargo was delayed 10 days by the episode. Australia, for its part, threatened to prosecute Captain Rinnan as a people smuggler. The disparity between Australia’s self-perception and the view of others from outside could hardly have been greater.

As a sidenote, I was recently in London and was introduced by Geoffrey Robertson, Q.C. to a number of European lawyers. He introduced me as “the barrister who acted for the Tampa asylum seekers”. It took me a couple of minutes to recognise the significance of the fact that his introduction was immediately comprehensible to them: they all knew about the Tampa episode and the stain it made on Australia’s national image. In recent months, Australia’s human rights’ record has been criticised by the South African judiciary. Less than 30 years ago, most Australians would have been ashamed to think that South Africa would criticise our human rights’ record.

It is hard to understand how Australia has got itself to this position. Part of the difficulty is, I think, that we lack the imagination to understand the realities of our policy of mandatory detention; and we fail to understand why it is the people seek asylum in the first place. The prevailing view in Australia seems to be that asylum seekers come here to improve their economic circumstances, and that we put them in holiday camps for a short time whilst their claims are processed. Let us consider the reality.

In late 2000 a family fled Iran. They were members of a small quasi-Christian sect which has traditionally been regarded as “unclean” by the religious majority. Their lives have traditionally been marked by persecution in every conceivable aspect. The recent history of Jews in Germany and Poland is a sufficient reminder of what happens to groups who are regarded by the majority as “unclean”. The family’s flight was triggered by a terrible event, the details of which are too terrible to relate at a luncheon like this. They arrived in Australia after a terrifying voyage across the sea and were locked up in Woomera. The family comprised mother and father in their thirties, and two daughters aged 7 and 10.

In Woomera, month after month, their condition deteriorated. In particular, the 10 year old girl who ceased eating, stopped engaging in self-care activities, had trouble sleeping and began scratching herself constantly. The Child and Adolescent Mental Health Service of South Australia learnt of the family’s plight and went to examine them. They wrote a report which included the following passages:

“(She) does not eat her breakfast or other meals and throws her food in the bin. She was preoccupied constantly with death, saying ‘don’t bury me here in the camp, bury me back in Iran with grandfather and grandmother’.

(She) carried a cloth doll, the face of which she had coloured in blue pencil. When asked in the interview if she would like to draw a picture, she drew a picture of a bird in a cage with tears falling and a padlock on the door. She said she was the bird.

It is my professional opinion that to delay action on this matter will only result in further harm to (this child) and her family. The trauma and personal suffering already endured by them has been beyond the capacity of any human being and I foresee that this family will require intensive and ongoing therapy for some time to enable them to conciliate and recover.”

Despite the urgent recommendations in that report, the family were left where they were. A further report was sent and, after weeks of delay, the family was finally sent to the Maribyrnong Immigration Detention Centre: Melbourne’s own concentration camp. When the family was moved, the South Australian authorities urged that the 10 year old daughter needed daily clinical attention. Nevertheless, for another three weeks nothing happened: no-one saw the family, no-one paid attention to the obvious psychological and medical needs of the 10 year old. Not long afterwards, on a Sunday night whilst her parents and her sister were at dinner, she hanged herself.

She did not die. When she was taken down, she tried to swallow shampoo because she had seen adults kill themselves that way in Woomera.

The family remained in immigration detention for another year. At last, after they had appealed to the full Federal Court, they were finally granted protection visas. In the meantime, they had suffered under Australia’s detention system for more than two years, the entire family has been traumatised to an extent which is inconceivable for ordinary members of the Australian community and a 10 year old girl very nearly succeeded in ending her own life.

That is the reality of mandatory indefinite detention in Australia in the 21st Century. It is passing strange that a government which prides itself in family values still implements policies so harsh that they drive children to attempt suicide. Suicide amongst pre-pubescent children is almost unheard of except in Australia’s detention centres.

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Just as we do not really understand what mandatory detention entails, neither do we understand fully why people come here in the first place. If we had even a glimmer of understanding of the conditions which drive people out of their homeland, we might be inclined to treat them more compassionately.

Let a single instance serve the purpose. Currently in Australia’s detention centres there are several hundred Iranians who desperately fear being returned to Iran. They have so far failed to make the Immigration Department understand the fate which awaits them should they be returned to Iran. One of them sent me a video tape which had been smuggled out of Iran. It is the most disturbing video tape I have ever seen or ever wish to see.

The tape is apparently an official recording: it contains an Iranian watermark in the bottom right-hand corner. Notwithstanding that, it is fairly poor quality handheld and a bit blurry at times. The scene is a largish room. On one side of the room stand two people who might be officials: they are holding sheets of paper from which they are reading out loud in a flat, bureaucratic manner. In the centre of the room stands a group of five or six people, huddled together, looking distressed. They may be members of a family, or possibly friends. On the opposite side of the room is a table. On the table lies a man, face up. He is being held by the shoulders.

Most of the time the camera is focussed on the officials: they are reading and reading and reading.

The camera swings to the family group who look very distressed and upset. Then it swings to the man on the table who attempts to sit up but is restrained and held down again, he looks increasingly disturbed and terrified.

The camera focuses again on the officials who continue reading at great length but flatly, bureaucratically, without interest. Just as the viewer begins to wonder where all this is leading, the camera swings around to the man on the table and then they remove his eyes with forceps.

* * *

In 2002 Australia, along with more than 80 other nations, acceded to the Rome statute by which the International Criminal Court was created. The court is the first permanent court every established with jurisdiction to try war crimes, crimes against humanity and crimes of genocide regardless of the nationality of the perpetrators and regardless of the place where the offences occurred.

As part of the process of implementing the International Criminal Court regime, Australia has introduced into its own domestic law a series of offences which mirror precisely the offences over which the International Criminal Court has jurisdiction. So, for the first time since Federation, the Commonwealth of Australia now recognised genocide as a crime and now recognises various war crimes and crimes against humanity.

The Australian Criminal Code now recognises various acts as constituting crimes against humanity. Two of them are of particular significance in the present context. They are as follows:

268.12 Crime Against Humanity Imprisonment Or Other Severe Deprivation Of Physical Liberty

A person (the perpetrator) commits an offence if:

the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and

the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and

the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty: Imprisonment for 17 years.

Strict liability applies to paragraph (1)(b).

268.13 Crime against humanity torture

A person (the perpetrator) commits an offence if:

the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the perpetrator; and

the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and

the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty: Imprisonment for 25 years.”

(The Covenant referred to is the International Covenant on Civil and Political Rights, the ICCPR.)

The elements of these offences are relatively simple. For the first, the elements are as follows:

The perpetrator imprisons one or more persons;

That conduct violates Article 9 of the ICCPR;

The conduct is committed knowingly as part of a systematic attack directed against a civilian population.

Australia’s system of mandatory, indefinite detention appears to satisfy each of the elements of that crime. Mr Ruddock and Mr Howard imprison asylum seekers. The United Nations Working Group on Arbitrary Detention has found that the system violates Article 9 of the ICCPR. Their conduct is intentional, and is part of a systematic attack directed against those who arrive in Australia without papers and seek asylum. A representative of the International Criminal Court has expressed privately the view that asylum seekers as a group can readily be regarded as “a civilian population”.

The second of the offences begins with imprisonment in violation of 268.12 and has an added element that the perpetrator inflicts severe mental pain or suffering upon one or more of the persons in the custody of the perpetrator, and the pain or suffering doesn’t arise only from lawful sanctions.

There is abundant evidence of overwhelming mental suffering in Australia’s detention centres. Neither Mr Ruddock nor Mr Howard could rationally deny that they are aware of the suffering of the people they lock up.

A careful analysis of the criminal code therefore suggests that Mr Ruddock and Mr Howard are guilty of crimes against humanity by virtue of their imprisonment of asylum seekers. The prospect of their being prosecuted is remote, because the Federal Attorney-General has an effective veto on the laying of charges under these provisions. But whether they are charged with these offences or not may not matter. The important point is this: an increasing number of people are raising their voices against Australia’s system of mandatory indefinite detention of asylum seekers. They assert that the system is morally wrong. Unfortunately, the debate generally stalls when the protagonists are unable to agree about moral norms.

The argument against mandatory detention takes on a new complexion when it is seen that the system very likely amounts to a crime against humanity. Those who support mandatory detention on whatever grounds appeal to them may find it harder to justify the fact that our Government is engaged in crimes against humanity judged not only by the standards of the international community but by the standards of our own legislation.