The papers of the 2005 Monash University Conference Seeking Asylum in Australia: 1995-2005 are copied to this website with permission of the compilers (June 2007). Previously published by The Institute for Public History, The Australian Centre for the Study of Jewish Civilization and Monash University (ISBN 0-9757387-3-9). Downloadable from this website through the PDF file below.
- Seeking Asylum in Australia: 1995-2005, Experiences and Policies - Compiled by Susan Aykut and Jessie Taylor and presented at the Monash Conference with the same title. The Institute for Public History, The Australian Centre for the Study of Jewish Civilization and Monash University [ISBN 0-9757387-3-9] (PDF File 1.62 Mb)
List of papers:
NOTE: the titles of the papers in the list below are hyperlinked to their respectice copies on this website. Currently you are visiting the page for the paper that's NOT hyperlinked in the list below.
- Jessie Taylor, Introduction
- Matthew Albert, Australian Refugee Policy from an African Perspective
- Julian Burnside, What the Government Will Do If They Can Get Away With It
- Michael Clyne, Words Excusing Exclusion
- David Corlett, Do We Have Obligations To Those We Sent Back?
- Michael Gordon, The Media's Performance: An Insider's View
- Ida Kaplan, Pursuing Justice and Recovery for Asylum Seekers: A Psychological Perspective
- Susan Kneebone, The Legal and Ethical Implications of Extra-Territorial Processing of Asylum Seekers: Europe Follows Australia
- Bernadette McSherry, Providing Mental Health Services and Psychiatric Care to Immigration Detainees: What the Law Requires
- Klaus Neumann, Seeking Asylum in Australia: A Historical Perspective
- Jessie Taylor, Culture Shock: Australian Youth Responding to Refugees
- Stancea Vichie, Home Is Not Home Until Human Rights Are Respected
- Spencer Zifcak, No Way Out: The High Court, Asylum Seekers and Human Rights
QC and Refugee Reform Advocate
Julian Burnside has given countless hours of his professional expertise as a barrister to the cause of refugees and other asylum seekers. As an advocate for the voiceless, Julian has taught us to open our minds, hearts and our homeland to welcome others to share our good fortune. In advocating his own beliefs as a human being, he represents those who are powerless to represent themselves. His passion for justice also flows into his love of the arts. Julian believes that every work of art carries part of our shared culture;
and he defines art broadly. He is state president of Musica Viva, council member of the Victorian College of the Arts and he chairs the music venue Fortyfive Downstairs and the Chunky Move Dance Company. He also sits on the board of The Justice Project. Julian is a well published author who cares about the English language and the power of words.
What the Government Will Do If They Can Get Away With It
Please note - this paper is a direct transcript of a presentation given in the absence of a written submission. The turn of phrase is thus less formal than would usually be expected from an academic paper.
Thank you for that introduction, Jess. I just wanted to say something else about From Nothing to Zero - the book of letters was really a very interesting project, and a worthwhile one. And it just happens that last year I commissioned Peter Sculthorpe to write a string quartet, because chamber music is one of my great passions. And whenever I commission music I never give the composer any guidelines or instructions or anything at all, except the form of the work, so a string quartet, or a piano duo... And to my astonishment and delight, completely independent of me, Peter stumbled across From Nothing to Zero, read it and got extremely upset by it, and wrote his quartet drawing on the main emotional themes that come out through the letters. So one movement is anger, one is trauma, one is hope of liberation, and so on. That was premiered by the Tokyo string quartet in Melbourne a couple of weeks ago, and has been played right around Australia, to great critical acclaim, and interestingly, in Canberra, to a standing ovation. It does seem significant that in Canberra of all places it got a standing ovation! And I mention this because I'm rather hoping that Lonely Planet might get together with the recording studio and put out a reissue of the book with the disc. It's a really good quartet and I'm delighted to have had a part in it. So watch out for Peter Sculthorpe's 16th String Quartet.
I had real trouble deciding what to talk about today, because here you all are, people who know a great deal about the refugee issue, people who have been involved in it, as I can see looking around the room, many for a long time. And the issue itself is now mature, almost to the point of having been solved, at least the first major phase of it. We still have to deal with the way in which refugees who have been accepted into the community are helped along until they feel sufficiently confident of themselves to make their own way in the community. And I think there's some important work to be done there. But I wanted to draw as my theme today - said he, sounding like a country parson... on a Sunday morning! - I wanted to take as my theme a warning: what our government is willing to do if they can get away with it. And I've chosen this particularly because of what is going on right at the moment, with the proposed anti-terror legislation, the industrial relations reform. Because frankly it seems to me that this Government is prepared to do just about anything... if they can get away with it. It is hard to think of an Australian government more driven by ideological zealotry than this lot, and they will do disgraceful things if they can get away with it. And I want to illustrate that by reference to a few episodes, most of which will be familiar to you.
The first and most obvious is the Tampa. Now, the Tampa episode was obviously a matter of international disgrace for Australia, although being in Australia you would hardly have known it. The Government's position on Tampa was greeted with widespread applause by the uninformed public, and by not exactly applause, but at least approval by a wrong-footed opposition, who went against the basic grain of their philosophy to support what the Government was doing. And the great irony of it was that with hindsight, the Tampa gets tied up with Sept 11 and terrorism, so a lot of people say 'it's not surprising that with the threat of terrorism that they acted the way they did with Tampa', and I wonder how many people in this room have absorbed that view of it... But remember the chronology: the Tampa rescued the 438 people from the Palapa on 26 August 2001. It entered Australian waters on 29 August 2001. We went to court on 31 August 2001, to try and get a writ of habeas corpus and require the government to act according to the dictates of the Migration Act. Because you may remember that the Migration Act says that if a person is in the migration zone or seeking to enter the migration zone and if on entering it they would be an unlawful non-citizen, then it's the obligation of an officer of the Commonwealth to take them into immigration detention. That's a provision that most of us don't like, by and large, but it seemed to offer some prospects of hope for the people on the deck of the Tampa. Because one thing was clear - they wanted to enter the migration zone at Christmas Island. But Bill Farmer, who's just been bounced upstairs, solemnly gave evidence in that court that he didn't know what the people on the Tampa wanted. That he wasn't sure whether they wanted to enter the migration zone or not. what crap. Unfortunately I wasn't allowed to say that in court!
The case, as you may remember, started on the Friday night and ran Saturday, Sunday, Monday, Tuesday, Wednesday, and then the judge adjourned it to consider his decision. And he handed down his decision at 2:15pm Melbourne time on 11 of September 2001. One of the most striking co-incidences. And of course, the next day the news precipitated responses; which responses changed the world as we know it. (September 11 didn't change the world, but our responses to it did.)
Because of September 11, largely, the government was able to pitch the whole asylum seeker issue as one of national security ('border protection' was the tag), and that was the way they ran it between 11 September and the election later that year. In the meantime, of course, they resolved the impasse that the Tampa represented by negotiating frantically during the first weekend with the Republic of Nauru - who were probably the 6th in line. They got knock-backs from everybody else, who thought it was a revolting idea to warehouse human beings whose only offence was to try and escape the Taliban. The irony of course was that we knew that the people on the Tampa were Afghans fleeing the Taliban, and no-one could have had a more obvious or stronger claim for asylum in 2001 than Afghans fleeing the Taliban, especially the women and children. But they ran to the election and created a climate in which it became a matter of national security to keep asylum seekers out. They set up the Pacific Solution based in Nauru and Manus Island, and people like Ali Mullaie who spoke before were among the approximately 1,500 people who in total were held up on Nauru. Now Nauru is an interesting case in point about what the Government will do if they can get away with it. Now, let us be blunt about it: they were warehousing innocent human beings, locking them away in what was effectively a legal black hole. It was our equivalent of Guantanamo Bay, with one important exception. The people held in Guantanamo Bay were suspected of being Taliban or Al-Qaeda supporters. The people locked up in Nauru were fleeing the Taliban and Al-Qaeda. And of course there are some Iraqis, for whom the obvious take-home message was: if you flee we'll lock you up, and if you don't flee, we'll bomb you. I don't know how people are supposed to resolve that choice.
But Nauru has been successful, as Mr Howard is proudly announcing. Because Nauru was basically hidden from the public view. No-one was allowed to go there except by the permission of the Australian government. Until the latter part of 2003, the only Australian journalists to get to Nauru - actually, they weren't Australian journalists at all - my wife, Kate, got there and took with her a BBC journalist called Sarah McDonald, and they went there to make a film about what was going on in Nauru. And by an interesting expedient they managed to get in. I had already tried to go there and had been blocked. I'd sent a colleague of mine who actually got onto the tarmac (although that was later)... In my three attempts to get there, all of them had failed, because the people in Nauru have been warned not to let anyone in from Australia unless they had the Australian Government's approval. So what Sarah and Kate did was to go to New Zealand, and from Auckland they flew to Fiji, then to Kiribati, then the Marshall Islands, Nauru then with an onward flight 2 days later to Kiribati. It's an incredibly expensive and tedious way to get there, and it's not a great place to be in any event - I think Ali would agree with that! But they got there, and because there was an offset of 2 days between the arriving flight and the onward flight, they simply asked for an ad hoc visa on the spot, and they were given it. The result is a BBC production called 'Australia's Pacific Solution', which has been shown all over the world, but not in Australia, interestingly. Although Sarah was put in touch with Kate by the ABC, who thought they would use it for Four Corners, Four Corners, after months of delay, decided they would not put it to air. SBS have not put it to air. Not daunted by this, Kate, through the Spare Rooms for Refugees network, offered copies of the video for the cost of the copies - $5 - and we've distributed thousands of copies through the whole refugee network that way, and it's been shown in church halls and private homes, and all sorts of places over the last few years. I suspect that more people have seen it than would have if it had gone to air on Four Corners! Plus there's the added frisson, that it's somehow naughty...! So it's good.
Michael Gordon later got into Nauru as things began to soften, because the Government found the thing pretty much unsupportable. The Government found that they were not able to find anywhere else to park these people, most of whom were ultimately assessed as genuine refugees, so Australia began to take them in dribs and drabs, in small enough numbers so as not to make a fuss, but a significant number of them have ended up in Australia, and the only difference between letting them in direct and taking them through Nauru is that it has cost Australia tens of millions of dollars extra, and it has inflicted incalculable additional pain on a lot of innocent human beings. Michael Gordon got in there and I think the Pacific Solution is now substantially discredited because he and one or two others have exposed just what it's all about.
Now, the counterpart to Nauru is Manus Island, which is a part of Papua New Guinea. It's a small island north of the mainland of PNG, and it was used as a holding place in 2002, but as the numbers dwindled, as Operation Relex in one way or another helped stop the arrival of boats into Australian waters, the numbers dwindled and so they decided to flush out Manus Island, and send all the people there over to Nauru. But one person remained on Manus Island - a man by the name of Aladdin Sisalem, the last man on Manus Island. And the curiosity about his case was this: the elaborate set of statutory provisions which were put in place immediately post-Tampa to justify after the event what the government had done, introduced some provisions which created a new category of asylum seeker, namely those who had arrived at the recently excised offshore territories of Australia, and those people were called Offshore Arrivals, and those Offshore Arrivals could be taken by the navy to Manus Island or Nauru. Well Aladdin Sisalem had actually made his way to an unexcised bit of Australia, so he was NOT an Offshore entry person. He had been tracking around the world for ten years looking for a place where he would be allowed to live. He's a stateless Palestinian, and no country in the world is obliged to receive him. So he got his way to PNG after queuing up in Kuwait for several years, after queuing up in Jakarta for several years, living on the streets, not allowed to work , he fled across into PNG. He was arrested by the authorities and was roughed up for his troubles, and was jailed for having entered the country without permission. Once he left jail, he thought this is not a very welcoming place, and so he went and found a fisherman who was prepared to take him across to Saibai Island. Saibai Island is close to PNG, but is part of Australia, and had not yet been excised. It has since. When he got to Saibai Island, he introduced himself to the Federal Police, he said who he was, said he wanted to seek asylum and asked for Australia's protection. They said they'd take him to some other place. So they took him to Thursday Island, another dinky-di bit of Australia, not yet excised. There he was interviewed by the Department of Immigration, first by an official on the ground, then by an official on the telephone from Canberra; in both of those interviews he explained who he was, he gave his story, and he asked for protection. They said 'we'll process your claim somewhere else', and they put him on a plane and took him to Manus Island. And when he asked how his claim for asylum was going, he was told he didn't have one.
Now, his plight only came to our attention because Sarah Stephen of Green Left Weekly contacted me and said, 'there's this guy on Manus Island who's been emailing us, and he's stuck there by himself - with his cat!' Honey the cat had wandered into the camp and befriended Aladdin, and there they were, alone, effectively, for nearly seven months. Now Tom Cordiner and Sam Hay, barristers at the Victorian Bar both helped me put a case together; Tom did most of the leg work, he found out what had been going on, he got a long statement from Aladdin, he put together an affidavit, and we then had to think - what's the claim? Well it turned out the claim was fairly straightforward! He had arrived in Australia, he had applied for asylum, and they hadn't processed his claim. And so there's a device called a writ of mandamus through which you can compel a public official to do their duty according to statute.
And so we sought mandamus. And the Government came into court with this heroic argument - that whilst it was true that he had arrived in Australia proper, whilst it was true that he had said he was a refugee, and had asked for protection, there is only one way to seek protection in Australia, and that is by filling out Form 866. And since he hadn't asked for Form 866, they didn't offer it to him, and since they hadn't offered it to him, he didn't fill it out, and because he hadn't filled it out, he didn't have a claim, and therefore there was no duty to fulfil. You see what I mean when I say that this is what the Government will get away with if they can. I though that was, well, I was going to say laughable - actually it's disgusting that a government would take that position. But then in a curious way the press - who have not really been the friend of those who support refugees - came to our aid. Because the press discovered the fact that by keeping the camp open for the sole purpose of holding one man in isolation, it was costing the Australian taxpayer $23,000 a day. And the Telegraph in Sydney and the Herald Sun in Melbourne both did front-page feature articles about the $23,000 a day man. This was not an act of compassion - it was the politics of envy. They did stories about what sort of accommodation you can get in Australian hotels, in Melbourne or Sydney, for $23,000 a day - and it's pretty good! Very quickly the government was made to look not only shabby but also ridiculous. And very quickly they came to me and negotiated a settlement on the quiet, and very quickly Aladdin was finally brought into Australia and given a 5-year humanitarian visa. He's now working happily as a mechanic, about to study aeronautical engineering, and he's gradually piecing his life together.
And then we have the 4 major events of October 2001. The government's chances in the election had improved with the public reaction to the Tampa episode. But in October 2001, there were 4 events that happened in quick succession, all of which had a bearing on what the government was prepared to do and condone and on what was going to happen to them at the election. The first, of course, was the Children Overboard episode - the so-called Children Overboard episode, a story which looked like rubbish right from the beginning, because why would asylum seekers who have risked everything to save themselves and their families suddenly decide to hurl their children into the sea? I mean, it just doesn't make sense. And then Peter Reith - whom one can assume is lying unless there's evidence to the contrary - embraced the story, and so you knew it was false. And then he started talking vaguely about the existence of photographic evidence, which wasn't produced. And then there was all sorts of to-ing and fro-ing before they managed to produce some rather obscure looking pictures that didn't necessarily tell you very much, and ultimately I don't think anyone in this room believed the story even at the time, and it was beginning to unravel. At the end of October and in early November, the story was unravelling as the press were pushing for more details about this, because they knew they were being had.
And so the next event that happened worked very conveniently in the government's favour because of the way they exploited it. That was the Sumber Lestari, which had arrived in Australian waters on 7 November 2001. It was chased by a customs vessel, and so it accelerated, in order to get to Ashmore Reef. The strain on the engine caused a fire in the engine room, the ship quickly caught fire, and burnt to the waterline. There were 140 odd people on board, and they all ended up in the water. And this is what happened in Operation Relex - it was specifically designed to detect and repel boats bringing asylum seekers into Australian waters. Most people would reckon that if you're going to send out the navy and customs vessels to intercept boats of desperate people seeking help, it would be likely that there would be incidents that would lead to people ending up in the water. I mean, one way or another it's kind of obvious. But notwithstanding the obvious fact that it was possible that people would end up in the water with boats sinking or catching fire, or whatever else may be the case, the customs boat and the naval boat between them had just two rubber dinghies. And those two rubber dinghies had to go around in moderately rough seas and pick up 134 people. It took 2.5 hours, and by the time everyone had been dragged out of the water, 2 women had drowned. They were lucky it was only 2.
The following year an inquest was held in Fremantle by the Perth coroner - an inquest into those 2 deaths. It had been the subject of some agitation by some refugee groups, and so 2 members of the families of the deceased were brought to Australia to give evidence in the inquest. The husband of the 18 year old woman who drowned, and the son of the 53 year old woman who drowned. The son had been on Nauru, the husband had been held on Christmas Island in the intervening time. I was asked if I would appear for the families at the inquest, which I did. And inquests are pretty awful things because you are dealing in a very cold, detached and clinical way with tragic human events. These 2 men were held in the cells each day, and held in the dock during each hearing, not because they were suspected of having done anything wrong at all, but because they were in immigration detention. So they were treated like criminals whilst they were on Australian soil. And each of them gave evidence about the events which had led to the drowning of their mother and wife, respectively. And it was very sad evidence, not surprisingly, and very difficult for them to give that evidence.
The final day of the inquest was Friday 7 November, which happened by chance to be the one-year anniversary of the drownings. And the refugee support group who had agitated for the inquest had arranged a small commemoration to take place in the lawns immediately outside the Fremantle court complex. They had got permission from the Department, from the Court and from the Police, and these 2 men were to be brought up from the cells about 45 minutes before court was to begin, so that they could be present while a small group of good-hearted Australians noted the 12 month anniversary. Half an hour before that little ceremony took place, Mr Ruddock personally withdrew their permission to attend the ceremony. So it took place while they were 20 metres away in the cells under the Fremantle court complex. His stated reason for withdrawing their permission to attend that little ceremony was that the press might be present, these two men might be photographed, and that might put them in danger in Afghanistan.
Notwithstanding that he'd already refused them asylum, I must say it was probably the most despicable act of a public official in my direct experience, and it still makes me go cold with anger to think that he did it.
Strangely, at the end of the hearing that day, the coroner - as coroners do - asked the families if they wanted to say anything. Coroners do that because it gives family members a chance to unburden. So Moussa, the young man whose wife had drowned, whose only freedom on Christmas Island was a visit to his wife's grave every couple of days, made a statement through an interpreter. He said simply that he wanted to thank Australia for taking care of him, and he hoped that his evidence hadn't upset anyone. It was the most extraordinarily gracious response to an act of wilful cruelty that he had suffered just hours earlier.
And then of course on 19 October we had the SIEV X. The SIEV X also led to more disgraceful behaviour by this Government, as the Government resolutely refused to allow the orphaned children of a man in immigration detention in Woomera then to come into Australia where they could be reunited with their only living relative - a resolution which dissolved rapidly in the face of the embarrassing fact that on a photo opportunity Mr Howard had grappled these 2 little kids, grabbed them by the hands because it was a good photo opportunity, and it turned out to be the two little kids who were not allowed into Australia to see their father. That was very quickly fixed up - another really interesting example of the way that the Government's position changes as soon as they're found out.
But the next item that I want to mention which also happened in October 2001, is much less well known, still needs to be resolved, and if we can expose it, then maybe there will be a resolution. And that is the fate of the asylum seekers currently held on Lombok Island - part of Indonesia. Those people arrived at Ashmore Reef in October 2001. They had been seeking asylum in Australia. They are mostly Afghans, and mostly Hazara - Afghans who even now are being recognised by the Department as having good claims for asylum, even against the current situation in Afghanistan. They arrived at Ashmore Reef and were held by the navy. They were held for 7 days in the open sunshine, and the families were separated from the single men. At the end of the seven days, the navy forced all the single men to go below decks on the boat that they had arrived in. This was a space which - according to them - was room enough for 40 people, but 160 people we forced into this cramped area, and then the little craft set sail again, and after a time they were brought alongside a Navy vessel which apparently had the family groups on board. The family groups were then taken from the navy vessel and put onto the vessel on which they'd arrived. The naval people then smashed the engine and the generator, and took away the diesel fuel and told them that they were back in Indonesian waters, and that was where they would remain. They were left there to be found by Indonesian fishermen. Felicia DeStefano has provided me with a copy of an email written by one of these men, and I can't improve on the way he tells the story:
Then asked all the singles to come down inside the boat. We requested them it is not possible for 160 persons to come together in a place, which is enough only for 40 persons. They said only for five minutes we want to tell some thing to you. So all the 160 passengers came down inside the boat, some sat on each other, some were standing. They kept us down by force for two days where the people cannot breathe, eat or sleep because there was not enough oxygen and a there was much smoke of engine. Many people fainted. Each who fainted was taken to upside of the boat like a dead body then navy people poured water on his face or injected him to become conscious and after he was conscious threw him down in the same tight and smelly place. After two days in early morning the officer shouted: 'you are returned back and now you are in Indonesian water'. This sentence was like thunder, which hit the passengers' mind. We shocked and asked them 'if you did not accept us why did you not submit us to UN and why have you deceived us and why... and why...!!??' But there was no ear to hear! The navy people instead of logical reason replied to us with electrical sticks, which they had with them. Then they take the families back to our small boat by force. Because no one was ready to come out of the navy ship the navy people were bringing the children in our boat and beating the men, and women so badly if they did not want to come out of navy ship. By observing this scene some of the navy people were weeping, one even hit his head to the wall of the boat. Then they broke the engine of the boat, took the oil and generator so we cannot go back to Australia and went by speed boat to the navy ship which had brought the families, and sailed away. We remained on the ocean with broken engine and no oil and generator to evacuate the water from our boat.
That is a story which is hardly known to anyone. And interestingly it resonates precisely with some of the details we learned in 2002 when Kate put together a document called Soldiers, Sailors and Asylum Seekers, drawn from the stories of people on Nauru. And what is interesting is that the stories of force and trickery, the stories of electrical sticks, are common to the people held on Nauru, the people held on Manus Island, and these people held on Lombok. It is impossible for them to have got their heads together and concocted the details which correspond. Mr Ruddock has publicly denied that Navy personnel have electrical truncheons, and the like. Of course, he is also sometimes a stranger to the truth, and his department is willing to acknowledge very fine distinctions when it comes to admitting - or not admitting - what they do. Interesting story (some of you will know this) - I was at a public forum once, in early 2002, and Philippa Godwin was on the same platform with me. Philippa Godwin was head of Onshore Compliance, and I had an opportunity to ask her in front of an audience of 100 or 150 people something about the not-yet-opened Baxter Detention Facility. It was due to open in that August. I had got hold of a ground plan, and the ground plan of Baxter shows that it's surrounded by a fence, which is described on the plan as a 'Courtesy Fence'! And I asked her why it was that an electric fence was referred to as a 'Courtesy Fence'. It seemed to me not just a small matter of semantics! And she publicly corrected me and said, 'It's not an electric fence', which took me aback... But she went on... 'It's an energised fence'. So I suppose they have energised truncheons, not electrical truncheons, and that would explain the difference.
They were duly rescued by Indonesian fisherman, and they were taken to Kupang Island, where they spent 40 days, and from Kupang they were taken to Lombok, where they have spent the last four and a half years. They have - most of them - been assessed by the UNHCR as genuine refugees, they are being held in a camp run by IOM, for whose services we are paying. They got to Australia, yet they were removed from Australia and dumped on Lombok, and there we continue to pay for their keep. Interestingly, they are receiving lessons in English on Lombok, which is pretty hard to explain, and there are just 92 of them left. The rest, I assume, have decided to return to Afghanistan and take their chances, rather than live an endless life in hopelessness with no prospect of a future. Those people are the forgotten leftovers of the brutality of Operation Relex and the Pacific Solution. And it's a small tragedy of our time that their fate has been largely ignored, because their circumstances are even worse than those of the people who were held in Nauru. Most people in Australia had vaguely heard of Nauru, most people thought it was part of Australia and thought it was just another detention camp. But at least people were aware that we were holding some asylum seekers somewhere. These are the forgotten people. The people held without most of the public knowing it, and no doubt at great expense to the Australian taxpayers. This is something that needs to be fixed and it needs to be fixed quickly. Holding people in isolation and detention, innocent of any offence, is just about enough. And we need to fix it up soon. It is the sort of wanton cruelty that this Government excels at until they are caught out. And we need to embarrass them back into a little bit of decency, and if we don't, well then, their souls are on our consciences.
I think the only other thing I want to add is - and it's right off the subject of asylum seekers - but I want to finish as I began. Right now the government is trying to introduce horrendous legislation which is supposed to make us more safe. It will in fact sell away basic democratic freedoms. In very brief compass, what it does is two main things:
First, it will allow the Federal Police to get a control order which can involve an order that a person remain in their own house without the use of the phone or the Internet, for up to a year. And that sort of order can be extended. Those orders can be made in the absence of the person affected. And when the person affected is given notice of the order, they will not get the evidence on which the order has been made, they'll get a summary of the evidence, which makes it very difficult to challenge the accuracy of the evidence, and therefore very difficult to challenge the making of the order. The other thing that it will enable them to do is to get an order in the absence of the person affected, an order that they be held in preventative detention for up to 2 weeks. This is jailing a person not because they have committed an offence, not because they are thought to have committed an offence, but in case they were about to commit an offence. This will be an Australian first - locking you up before you've committed the crime!
It doesn't need to be proved on the criminal standard that you were going to commit the offence - the balance of probabilities is enough. It can be done in your absence, and when you're notified of it, all you'll get is a summary of the evidence. And by the time you get to court to challenge it - if you can - you will have already done the time. So we have the possibility of 2 weeks' jail - just in case - without much chance of overturning it. And lurking in the background - the background against which this legislation will operate - is a law that was passed in October 2004, and amended in May 2005, and it's the most terrifying piece of legislation, which almost no-one seems to be aware of. It's the National Security Information (Civil and Criminal Trials) Act. What it does is provides that in any litigation, whether Criminal or Civil, if evidence is going to be given by a party, or if questions are gong to be asked by a party, or a witness is being produced in Court by a party, and if the Attorney General of the Commonwealth thinks that that evidence or those questions or that witness might jeopardise Australia's 'national security interests', then he can sign a certificate which conclusively certifies that that evidence or those questions or that witness would jeopardise Australia's national security interests. On making that certificate, the certificate must be given to the court, the court must close the hearing, and in the closed session which can exclude the defendant and the defendant's lawyers, the court has to decide whether or not to allow that evidence to be heard, to allow those questions to be asked, to allow the witness to be brought into the court. And in undertaking that inquiry, the statute directs the court to give principle weight to the conclusive certificate of the Attorney General.
Now, read literally, it makes it logically impossible for relevant evidence to be produced, for relevant questions to be asked or for relevant witnesses to be brought into the court. Well you might think that maybe this is ok, because it is protecting our 'national security interests'. Well, what does that phrase mean? It's defined in the legislation. It's defined extremely broadly, and includes many things, including our interests in the proper functioning of international law enforcement agencies. So let us suppose that Mamdouh Habib is about to be subject to a control order - and I'm giving short odds on that one - and he says that when he was in jail in Egypt, he was interrogated for about 100 hours by CIA officers. He was fairly thoroughly softened up, and then he was interrogated by Australian Federal Police. If Mamdouh Habib were the subject of a control order on the basis of things he told the Federal Police, he would ordinarily be entitled to adduce evidence of the way he'd been treated by the CIA in the 100 hours of interrogation before he was questioned by the AFP. As you can understand, the way you are treated immediately before an interrogation will make quite a significant difference to the way that you answer the questions. But of course, giving evidence about how the CIA treated him might adversely impact on the way the CIA goes about its business. And it's an international law enforcement agency, therefore it's possible, and I would think probable, that the Attorney General would prohibit that evidence from being called. And for Mamdouh Habib, that would make the difference between being able to show that he should not be the subject of a control order, and being unable to show that. For him, it could mean the difference between ordinary freedom in a country where he has committed no offence, and house arrest under the strictest conditions for a year or possibly more. This is the most devastating incursion on basic democratic rights, and our Government will do it, if they can get away with it. We know that they will, because we've seen them do it before. So can I suggest that you should be alert, and very alarmed. Right now, our freedoms are at risk like never before. Thank you.