"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."
"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."
"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."
2 April 2008: Julian Burnside: Citizens' rights and the rule of law in a civil society: not just yet - Julian Burnside delivers The 2008 Manning Clark Lecture: "Personally, I would have preferred to see the [Howard] Government removed because of its lamentable approach to human rights and the rule of law. But perhaps Australia is not ready to embrace such notions: not just yet. In any event, the electorate saw industrial relations as a more pressing matter."
28 August 2006: Five years on, the Tampa drama continues - As SMH investigative reporter David Marr shows, the drama continues, now in the private lives of those refugees who eventually made it into Australia, and barrister Julian Burnside QC gets challenged by Australians on a public Blog.
25 February 2005 - Julian Burnside QC: Honesty matters: the ethics of daily life - "The essence of democracy is that the elected representatives are chosen because their constituents think this candidate or that will best represent their views in parliament. If a candidate lies about his or her beliefs and values, the democratic process is compromised. The greater the lie, the greater the damage to the true course of democracy."
22 January 2005 - A case of tsunamitis? Five eloquent thinkers and writers, Julian Burnside QC, Waleed Aly, Misha Schubert, Greg Barns and Anne Summers share their thoughts about the disaster and Australia's subsequent response to the international appeal. And in a late addition, AFL's CEO Andrew Demetriou joins the fray.
19 February 2004: Julian Burnside vs Amanda Vanstone - It was a full house when Julian Burnside QC, one of the most vigorous opponents of mandatory detention, went face to face against Immigration Minister Amanda Vanstone at a Rotary breakfast held at the RACV Club in Melbourne, and directly accused her of crimes against humanity.
9 July 2003: Julian Burnside QC: Refugees: Australia's moral failure - A speech at a dinner launching 'Just and Fair Asylum' in Sydney on June 11 2002. "We diminish ourselves by the way we treat [refugees and asylum seekers]. Once we recognise that these people are human beings, we will see that the problem is in truth a moral problem and that we have made a profound mistake in the way we have handled it."
9 July 2003: Australia's Treatment Of Asylum Seekers: The View From Outside - 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, says Julian Burnside QC.
By Julian Burnside
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'.
* * * * *
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
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.
The elements of this offence are relatively simple:
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. 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". (see Burnside's speech at Julian Burnside vs Amanda Vanstone.)
* * * * *
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.
* * * * *
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.