The need to protect human rights
It's time to uphold our rights
By Julian Burnside
December 14, 2006
In a climate of fear, protection of human rights becomes extraordinarily difficult. It brings to the forefront the tension between the majoritarian principle of democratic rule and the humanitarian principle of protecting the powerless and marginalised. In that setting, protection of human rights presents its greatest challenges.
The protection of human rights depends on a number of things. First, Parliament must exercise restraint in legislating where human rights are affected. It should recognise that human rights are a basic assumption in democratic systems, and that majoritarian rule does not justify the mistreatment of unpopular minorities.
ASIO's powers have been greatly increased since the September 11 terrorist attacks. ASIO can now hold a person incommunicado for a week, and force them to answer questions on pain of five years' jail. The person need not be suspected of any offence.
The Federal Police now have power to obtain a secret order jailing a person for up to a fortnight, without a trial and without the person having committed any offence. They can obtain a secret control order, placing a person under house arrest for up to 12 months without access to telephone or internet. In each case, the person affected by the order is not allowed to know the evidence against them. These laws betray the most fundamental assumptions of a democratic society.
The protection of human rights also depends on the executive showing restraint and decency in administering laws that have the potential to affect human rights. In this, the Howard Government has a miserable record, a record made all the worse by its hypocritical maundering about "family values" and a "fair go".
Family values cannot be reconciled with the indefinite detention of refugee families in conditions that drive children to attempt suicide.
The idea of a "fair go" was nowhere to be seen when Attorney-General Philip Ruddock instructed the Immigration Department to argue the case of Al Kateb. The Migration Act provides that a person who comes to Australia without a visa must be detained and must remain in detention until they get a visa or until they are removed from Australia. Boat people have not committed any offence, but they are held indefinitely in high security jails. Kateb had arrived in Australia seeking asylum. He was refused a protection visa. He asked to be removed from Australia, because he found conditions in detention unbearable. He could not be removed from Australia because he is stateless. The "fair go" Howard Government argued that Kateb could be held in detention for the rest of his life.
It is easy to support the idea of human rights for ourselves, our family and friends, our neighbours and so on. It is less easy to stand up for the rights of the unpopular, the marginal, those we fear or hate. Public reaction to the Cornelia Rau case seemed to reflect a perception that she was one of "us", not one of "them". Her rights mattered but, by implication, the rights of the others in detention did not.
That sort of thinking - so easily influenced by governments - is profoundly dangerous to the cause of human rights. The Howard Government's attitude to human rights is demonstrated by the case of David Hicks. Several things are clear about the Hicks case. First, he is not alleged to have hurt anyone at all. Second, he has not broken the law of Australia, the US or Afghanistan. Third, the most serious allegation against him is that, fighting with the Taliban (then the lawful government of Afghanistan) he pointed a gun in the direction of American troops. It is not alleged that he fired at them. Fourth, he has spent five years in Guantanamo Bay, mostly in solitary confinement. Fifth, the treatment he has been subjected to in Guantanamo breaches the Geneva Convention concerning the treatment of prisoners of war and it breaches Australian and US standards for the treatment of criminal suspects.
The Howard Government has done nothing at all to help Hicks. It has abandoned him. The conduct of the Government is impossible to reconcile with the values and assumptions that are basic to our democratic system. By exploiting a climate of fear, the Government has curtailed human rights and civil liberties in a way that would not otherwise be tolerated.
The Victorian Government has begun a move in the opposite direction by passing the Charter of Human Rights and Responsibilities. While the charter cannot affect federal laws, it serves as a timely reminder that human rights are fundamental. It will put the assumption of human rights to the forefront: human rights are not an optional extra. In addition, the charter reminds us that human rights are for all people: the unpopular, the unworthy, the feared and despised are also entitled to be treated as human beings.
What is needed, however, is a Federal Charter of Rights. The major human rights abuses in Australia are committed by the Federal Government: indefinite detention of asylum seekers, even though they have committed no offence; secret jail orders; secret control orders; secret hearings in which a person's fate can be blighted forever.
If a government can mistreat one unpopular group, they will mistreat another, and another. Do not wait until it is your turn. Human rights matter, especially in a climate of fear.
Julian Burnside is the president of Liberty Victoria. This is an edited extract of his Human Rights Oration, delivered yesterday for the Equal Opportunity Commission of Victoria. For the full text, go to Human Rights Oration
To read the original article from The Age, click on:
The Age
By Julian Burnside
December 14, 2006
In a climate of fear, protection of human rights becomes extraordinarily difficult. It brings to the forefront the tension between the majoritarian principle of democratic rule and the humanitarian principle of protecting the powerless and marginalised. In that setting, protection of human rights presents its greatest challenges.
The protection of human rights depends on a number of things. First, Parliament must exercise restraint in legislating where human rights are affected. It should recognise that human rights are a basic assumption in democratic systems, and that majoritarian rule does not justify the mistreatment of unpopular minorities.
ASIO's powers have been greatly increased since the September 11 terrorist attacks. ASIO can now hold a person incommunicado for a week, and force them to answer questions on pain of five years' jail. The person need not be suspected of any offence.
The Federal Police now have power to obtain a secret order jailing a person for up to a fortnight, without a trial and without the person having committed any offence. They can obtain a secret control order, placing a person under house arrest for up to 12 months without access to telephone or internet. In each case, the person affected by the order is not allowed to know the evidence against them. These laws betray the most fundamental assumptions of a democratic society.
The protection of human rights also depends on the executive showing restraint and decency in administering laws that have the potential to affect human rights. In this, the Howard Government has a miserable record, a record made all the worse by its hypocritical maundering about "family values" and a "fair go".
Family values cannot be reconciled with the indefinite detention of refugee families in conditions that drive children to attempt suicide.
The idea of a "fair go" was nowhere to be seen when Attorney-General Philip Ruddock instructed the Immigration Department to argue the case of Al Kateb. The Migration Act provides that a person who comes to Australia without a visa must be detained and must remain in detention until they get a visa or until they are removed from Australia. Boat people have not committed any offence, but they are held indefinitely in high security jails. Kateb had arrived in Australia seeking asylum. He was refused a protection visa. He asked to be removed from Australia, because he found conditions in detention unbearable. He could not be removed from Australia because he is stateless. The "fair go" Howard Government argued that Kateb could be held in detention for the rest of his life.
It is easy to support the idea of human rights for ourselves, our family and friends, our neighbours and so on. It is less easy to stand up for the rights of the unpopular, the marginal, those we fear or hate. Public reaction to the Cornelia Rau case seemed to reflect a perception that she was one of "us", not one of "them". Her rights mattered but, by implication, the rights of the others in detention did not.
That sort of thinking - so easily influenced by governments - is profoundly dangerous to the cause of human rights. The Howard Government's attitude to human rights is demonstrated by the case of David Hicks. Several things are clear about the Hicks case. First, he is not alleged to have hurt anyone at all. Second, he has not broken the law of Australia, the US or Afghanistan. Third, the most serious allegation against him is that, fighting with the Taliban (then the lawful government of Afghanistan) he pointed a gun in the direction of American troops. It is not alleged that he fired at them. Fourth, he has spent five years in Guantanamo Bay, mostly in solitary confinement. Fifth, the treatment he has been subjected to in Guantanamo breaches the Geneva Convention concerning the treatment of prisoners of war and it breaches Australian and US standards for the treatment of criminal suspects.
The Howard Government has done nothing at all to help Hicks. It has abandoned him. The conduct of the Government is impossible to reconcile with the values and assumptions that are basic to our democratic system. By exploiting a climate of fear, the Government has curtailed human rights and civil liberties in a way that would not otherwise be tolerated.
The Victorian Government has begun a move in the opposite direction by passing the Charter of Human Rights and Responsibilities. While the charter cannot affect federal laws, it serves as a timely reminder that human rights are fundamental. It will put the assumption of human rights to the forefront: human rights are not an optional extra. In addition, the charter reminds us that human rights are for all people: the unpopular, the unworthy, the feared and despised are also entitled to be treated as human beings.
What is needed, however, is a Federal Charter of Rights. The major human rights abuses in Australia are committed by the Federal Government: indefinite detention of asylum seekers, even though they have committed no offence; secret jail orders; secret control orders; secret hearings in which a person's fate can be blighted forever.
If a government can mistreat one unpopular group, they will mistreat another, and another. Do not wait until it is your turn. Human rights matter, especially in a climate of fear.
Julian Burnside is the president of Liberty Victoria. This is an edited extract of his Human Rights Oration, delivered yesterday for the Equal Opportunity Commission of Victoria. For the full text, go to Human Rights Oration
To read the original article from The Age, click on:
The Age
posted by Pax Christi @ Thursday, December 14, 2006
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