Human Rights Litigation in the UK and Australia

Stephen Sedley: Julian is an Australian silk of very great distinction with a

very interesting variety of experience which as you will see in a moment rather

mirrors the kind of interests that we at Cloisters have always had.

Cloisters goes back a long way. When I came to the Bar, its founder, D N

Pritt, a commercial silk and MP was still alive and took an interest in how I

was doing. He told me a number of useful and interesting things including how

he handled the House of Lords when arguing Bell v Lever Brothers in 1931 or

1932. We reach back some way.

One of the things that was passed on to me after Pritt’s death was the silk

gown which was made for him as a gift in India by the clients who he

defended in the Meerut conspiracy trial, one of the great moments of colonial

history. That gown has remained in chambers and been worn by a number of

us successively on the rare occasions when we have taken silk.

It is a particular pleasure then to be able to welcome somebody who is

plugged into the civil liberty concerns, the human rights concerns that we are

very much familiar with in these Chambers. Julian is somebody who has

moved across the spectrum of work. What he is going to do is talk about how

things work in Australia and it is for us to make the comparisons that we want

to with how things work here.

Australia of course, except for the Australian Capital Territory and Victoria,

has no human rights legislation. That does not mean to say that they are

unfamiliar with the principles of the international instruments. Julian acted for

the Maritime Union in Australia in a major piece of litigation which he will I

think tell you about and which I think will also change your own ideas about

the way things might function. He has acted for the main civil liberty

organisation, acting against the Australian Government over the Tampa affair,

another shameful business which you will remember when a ship loaded with

refugees was refused port by the Australian authorities. He has acted for

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Indigenous Australians in the first successful piece of litigation against the

Australian Government in what is known as the stolen generation, young

Aborigines who were taken from their families and never able to reunite with

them. So it is very unsurprising that in 2004 Julian was given the Human

Rights Law Award by the Human Rights and Equal Opportunities

Commission, along with a great many other distinctions including the Order of

Australia for Human Rights Services and as a Human Rights Advocate. He

was awarded it in 2009, additionally, for his services as Patron of the Arts and

a fundraiser. He is a man of many parts and I will ask him to speak to you.

Julian Burnside: I have never seen a false trade description so deftly served.

I was talking about this a little while ago. I stumbled across a quotation which

struck me as being an apt way to start. It’s from Justice Brandeis’s dissenting

judgment in Olmert v United States. He said “In a government of laws,

existence of the government will be imperilled if it fails to observe the law

scrupulously. Our Government is the potent, the omnipresent teacher. For

good or for ill, it teaches the whole people by its example. Crime is

contagious. If the Government becomes a lawbreaker, it breeds contempt for

law; it invites every man to become a law unto himself; it invites anarchy. To

declare that, in the administration of the criminal law, the end justifies the

means -- to declare that the Government may commit crimes in order to

secure the conviction of a private criminal -- would bring terrible retribution.

Against that pernicious doctrine this Court should resolutely set its face.”

It is a pity that was in dissent. I don’t know whether that passage has the

same resonance for you as it does for me but some of the most interesting

and certainly most gratifying cases that I have done in Australia have been

cases where the Government has been breaking the law and I think that

passage captures pretty well the gravity of such a phenomenon. It was one of

the cases under the Fifth Amendment and the question was whether evidence

obtained improperly could be used.

The idea arose for me in a very different setting, in the Maritime Union case

that Stephen mentioned. It was a curious thing for me to be involved in that

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case, not least because my practice had been up until then entirely

commercial litigation, with a boutique practice in computer law because in the

land of the blind the one-eyed man is king. I had discovered computers rather

earlier than most of my contemporaries.

Back to the point. In 1998 there were rumours swirling concerning the way the

stevedoring industry might deal with the Maritime Union of Australia. The

Maritime Union of Australia was the waterfront union; and Patrick Stevedores

was one of the two major stevedores.

Patrick Stevedores were very dissatisfied with the way the Union was

behaving. The relevant industrial setting was that the Howard Government,

then in its second year, had introduced the Workplace Relations Act which

included a provision which made it an offence for any employer to take

adverse action against an employee by reason of various considerations, one

of which was the membership of a Union.

Now, as I say, there were rumours that Patricks were going to do something

to the Union but no-one could pin it down. It was certainly the case that the

MUA was one of the most powerful and one of the most bolshie Unions, and

the Howard Government dearly wanted to see it crushed. The fact that I got

briefed by the Union was astonishing to everyone, because it really wasn’t my

field.

I remember having one of those conferences where ignorance is really your

best weapon. I had plenty of that, so I started asking some innocent

questions. The problem was that the Union didn’t have evidence to work with:

certainly not enough to justify an injunction. I said well let’s suppose the

rumours are true. Let’s suppose they do sack the workforce - because that

was the rumour - what would happen?

Well, say the experts, they’ll be reinstated. Why’s that? Well because of

provision such and such which says that you can’t just sack everyone

simply because they are in the Union. So I said, well if that’s right then what’s

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all the fuss about? Are there any exceptions to the idea that they would be

reinstated if they are sacked en masse? Well only if the employer is going out

of business.

Now Patrick Stevedores had been around for over a century. It had all of the

equipment that you would typically associate with stevedoring operations on

docks and so I said: If they are going to sack everyone then they’ll have to get

rid of their assets, so what we need to do is write them a letter, asking for an

undertaking (a) that they won’t dispose of their assets and (b) that they won’t

sack their workers; and if they refuse to give the undertaking then that’s a

trigger to go off to court and get an injunction.

Well they replied to our letter with what a colleague of mine once described as

the generic “Get fucked, rude letter follows” reply, and so we filed a motion in

the Federal Court returnable on the following Tuesday, the Tuesday before

Good Friday, and we thought well we’ve got pretty good grounds to get the

injunction we need.

We turned up in court on Tuesday morning to be greeted not only by counsel

for Patricks but counsel for administrators who had been appointed to the

companies overnight. It turned out that, in the middle of the previous night, an

army of mercenaries had come onto the docks by boat, had pushed all of the

workers off the docks with the help of attack dogs and large gents in

balaclavas. The photos in the press the next morning looked terrible: here

were these big security guards in balaclavas sitting in Patrick Stevedores

shelters making sure that none of the MUA workers could get onto the docks.

Patricks had trained up an alternative workforce who had been put into place

overnight, and simultaneously with this they had appointed administrators to

the companies as a preliminary to the companies going out of business.

That was a bit of a game changer for us, but it occurred to me (again,

ignorance is a blessing) it occurred to me that judges tend not to like a litigant

who tries to steal a march. The company did the very thing we had asked

them not to do in between the lodging of a motion and the hearing of a motion.

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We persuaded the judge to give us a holding injunction to prevent the

administrators sacking the workers until after Easter, when the matter could

then be dealt with properly.

Over Easter we worked furiously on all of the new documents that we

obtained to explain the new circumstances and we had then a two day

hearing in front of the primary Judge. He granted injunctions restraining the

administrators from sacking the staff. They had been pushed off the

waterfront, but they had not been dismissed. Of course the trick about

appointing administrators was that their motives for dismissing staff would be

simply the impecunious condition of the companies, and you couldn’t attribute

to them the statutorily prohibited reasons for dismissal that might have been

attributed to the companies themselves.

So we got the injunctions. That evening they filed a notice of appeal and two

days later the full Federal Court began the hearing of the appeal. It ran for

three days, and at the end of the third day the judges retired to consider their

judgment. At 7 o’clock that night they gave judgment in which they upheld the

primary Judge’s ruling. We went back and opened a bottle of cheap

Champagne (well it was a workers’ case after all) but at 9.30 we got notice

that they were going off to a Judge of the High Court (which is our equivalent

to your Supreme Court) seeking a stay on the Order which had been made by

the Full Court. It had been a rather long day, and I remember a couple of testy

exchanges with the Judge who essentially told Patricks what their grounds of

appeal ought to be and then warned us that an application for special leave to

appeal to the High Court would be heard the following Monday in Canberra,

and that we should approach it on the assumption that it may amount to a

hearing of the substance of the appeal.

The following Monday we all went up to Canberra and the hearing began.

The bar table was pretty fully occupied. I think there were about 17 counsel

for the various parties, and the argument ran for 4 days. On the 3rd May, just

over three weeks after our very first application to the court, we got judgment

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from the High Court in which by a majority of 6 to 1 they upheld what the

primary Judge had said.

The case was extraordinary. It had brought the country to a halt because of

the magnitude of the issues. It had developed in a way that I had not

expected. And I must say it was one of those cases which significantly

changed my mind and perhaps my career. I had started my career believing

what my parents had told me, that Unions were a nuisance and big powerful

unions were a menace. I finished that case thinking that a well-regulated,

responsible Union movement is essential if you are going to have anything

like industrial justice in a community. That message was brought home to me

very powerfully as my instructing solicitor and I were leaving the court after we

got judgment on the 3rd May. A big bloke who was, I think, one of the cleaning

staff in the court burled up to us and said “Thanks fellows. We all feel a bit

safer”.

That captured a really important truth because if they could have crushed the

MUA then no Union was safe, no Union member was safe, no employee was

safe. What was interesting about that case, and what rather shocked me, was

that on the documents that we obtained on discovery it became blindingly

clear that the whole structure of the operation that Patricks had set in motion

on the 7th April 1998 had been done with the approval and encouragement of

the Government. The Government had actually helped them set it up; the

Government was in a conspiracy with the major stevedoring company to

break the Government’s own industrial laws. Now I don’t know: perhaps for

all of you that seems a pretty commonplace thing. I never thought in my

wildest dreams that Governments would behave as badly as that. I later learnt

that it wasn’t an isolated incident, but I discovered it in a rather different

context and that was in connection with the Tampa litigation three years later,

which I will come to in a moment.

Now to try and nod to the title (because Sheryn put a lot of effort in thinking up

a title) we do have some human rights legislation in Australia. The Australian

Capital Territory has a Human Rights Act which was introduced in 2004, and

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Victoria got a Charter of Human Rights and Responsibilities Act a couple of

years later. But of course in our Federal system it is the Federal Government

which swings most of the weight, and most of the serious breaches of human

rights are at Federal level. So State or Territory human rights legislation

simply does not help. The interesting thing about the approach of

Governments to human rights, and especially the John Howard Government (I

will not try and disguise the fact that I detest John Howard: I thought he was a

terrible Prime Minister who did terrible things to the country). We got a very

interesting snapshot of his thinking when the ACT Human Rights Act was

passed. He was questioned at a doorstop interview. He was asked what he

thought about a Human Rights Act? And he said “I think it’s a really bad idea

because it gets in the way of what Governments do.”

I always thought that was the point of human rights legislation. He

inadvertently put forward the most powerful argument in favour of a Human

Rights Act. In Victoria as I say we got human rights legislation a couple of

years later. I am happy to report that in neither jurisdiction has it caused

either a flood of irresponsible litigation nor has it brought the world as we

know it to an end. Neither Act has done any harm.

We recently had a change of Government in Victoria and the incoming

Government came in on an election promise that they would scrap the Charter

of Human Rights. Fortunately, the Premier had second thoughts about it and

pulled his Attorney into line, so we still have our Charter of Human Rights. If

they had done what they promised I think - and I haven’t checked this but I

think - we would be the only jurisdiction in the world to have introduced human

rights legislation and then repealed it. Not a first that I would want to be

associated with.

Because we do not have Federal human rights legislation, human rights

litigation at Federal level is quite difficult. Some Judges on the High Court

have been quite creative in finding protections within the creaking machinery

of our Constitution. So, for example, our constitution divides the powers of

Government explicitly into the three arms – legislative, executive and judicial -

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and quite early on the court held that, because of this division of Government

powers, no arm of Government can exercise the powers given to another arm

of Government and so, with the separation of powers, you can find a brake on

some of the misconduct of the Executive Government in particular and you

can identify limits to the power of the Parliament. But it’s a very clumsy

instrument for the purpose of protecting human rights, and they’ve really got to

want to help because an aspect of the separation of powers jurisprudence is

the “chameleon” doctrine. This means, in substance, that the character of a

particular activity, and determining which arm of Government it belongs to, will

vary according to the context in which the question is asked. This makes it

possible to make up the answers that suit you.

But the High Court has been at times, quite creative. It did manage to find in

1992 that the Aborigines were the owners of the country at the time of shite

settlement, and it recognised for the very first time since 1788 that Aborigines

had rights to the land that they occupy so long as those rights hadn’t been

supplanted by a later grant.

Similarly, the Court found an implied right of free political speech premised on

the proposition that the structures for electing a democratic parliament must

assume that the electorate will be relevantly informed and thus there is an

implied right of free political speech.

But finding fundamental rights in the interstices of the Constitution has

shortcomings, and those shortcomings were first exposed in a case called Lim

in 1992 which tested the early mandatory detention legislation. (We have a

very peculiar attitude to people who turn up without an invitation, which is odd

because Australians are a nation of gatecrashers and the Aborigines have

been conspicuously silent about people turning up in small boats).

In Lim’s case the question was this: Where the Parliament says that a non-

citizen who comes to the country and does not have a visa must be detained

until they get a visa or until they are removed, is this a breach of the

separation of powers? Punishment is central to the powers of the judicial arm

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and therefore - is it punishment to lock a person up for an indeterminate time

pending visa processing? If so, for Parliament to send a person directly to jail

would be a breach of the separation of powers. But the court said no – that’s

not how it works. This is detention for an administrative purpose and if the

detention is for a legitimate administrative purpose, then it is valid: it is within

the proper power of the Parliament to grant the executive the power to

imprison. It’s a troubling result.

The potential of Lim’s case came into rather sharp relief in 2004 in the case of

Al Kateb. Mr. Al Kateb was an asylum seeker who had come to Australia to

seek protection. The mandatory detention provisions of the Migration Act

provide that a non-citizen who does not have a visa must be detained, and

remain in detention until they get a visa or they are removed from Australia.

Mr. Al Kateb was a non-citizen without a visa. Therefore he was put into

detention. He was refused a visa. He could have sought judicial review but

that would typically mean a couple more years in detention. He found

detention so oppressive that he said instead: I’m not going to take it any

further. Remove me from Australia. I’ll sign any documents that are

necessary.

Time went by and he remained in detention because he is stateless and there

was nowhere he could be sent. He was in that rather bleak position of not

being allowed to be anywhere. So the case went to the High Court, and

although Mr Al Kateb had not broken any law, was not suspected of being a

danger to anyone, the Howard Government argued all the way to the High

Court that he could remain in detention for the rest of his life. By a majority of

4 to 3, in August of 2004, the High Court held that that’s what the Act means

and with that meaning it is constitutionally valid. This is not a good illustration

of being able to find human rights embedded in the interstices of our

Constitution. I would have thought the separation of powers argument might

have got up in a case like that but sadly it did not.

Let us be blunt: if the Constitution cannot guarantee the freedom of an

innocent person, then we have a problem.

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Alongside Al Kateb’s case, just to sharpen the indecency of it, alongside it

there was the case of Behrooz, which was argued on the same day and

decided at the same time. Mr. Behrooz had been held in Woomera Detention

Centre - a notoriously dreadful detention centre in the South Australian desert.

In the Easter of 2002 a bunch of Australian activists had gathered at

Woomera and created a bit of a disturbance. During the disturbance they

created they managed to pull apart the bars that surrounded the camp just

enough so that a few detainees were able to get out through the bars. Some

of them just sort of stood there looking around whilst the Federal Police

surrounded them and took them back inside; a few others made a dash for it

including Mr. Behrooz.

Mr. Behrooz was then charged with escaping from immigration detention.

Immigration detention is not a place. It’s a state of existence and it includes,

for example, being in the company of an officer who has a practical ability to

control your movements at the time. Now he was charged with escaping from

immigration detention and I had been looking for a case to test what are the

limits of the conditions in immigration detention, because we had evidence of

the conditions being quite dreadful and it occurred to us that if the conditions

in which a person was being held were so dreadful that they couldn’t be

reconciled with a proper administrative purpose, if they were more than was

necessary for the administrative purpose of processing a visa application,

then presumably the Parliament could not legitimately have legislated for

those conditions. It is one thing to say you’ll be detained until you are given a

visa. It’s another thing to say you’ll be dropped down the bottom of a deep

hole and held there without food or water until you’re given a visa.

The Migration Act was silent on the physical conditions of detention and there

were no regulations concerning the physical conditions of detention. The

question then was: Would the physical conditions of detention have any

bearing on the validity of the detention system? That was supported by

evidence about the awful privations and the acts of insanity and self-harm and

suicide and so on that happened in detention but on the same day that the Al

Kateb case decided that you could be held in detention for the rest of your life

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the Court held in Behrooz that the conditions of detention, however dreadful

they may be, do not invalidate the detention. In a third High Court decision in

that same year, the case of Woolley held that all of these things apply equally

to child detainees as to adults.

When you see a line-up like those three cases you begin to wonder where the

country has gone that you thought you understood.

Another problem has emerged in recent times which has been very well dealt

with by your House of Lords as it was in A v Secretary of State for the Home

Department. We have recently had a number of people in Australia who have

come as boat people, who have applied for protection visas and have been

accepted as refugees, so there is no question they are in fact refugees but

before being given a visa they are checked by ASIO, our security apparatus.

ASIO has adversely assessed them on security grounds. Now when ASIO

adversely assesses a person on security grounds it refuses to say what it’s

taken into account and a case that I took to the Federal Court a few years ago

which was only decided last year, was set up to test that very problem.

You may remember that we had the miserable Pacific Solution in which

asylum seekers were bundled off the Pacific Island and marooned. Although

John Howard claimed, at the start of the Pacific Solution, that none of them

would ever set foot in Australia, eventually a large proportion of them were in

fact brought to Australia, having been accepted as refugees. But two of them

were left on Nauru. They had been assessed as refugees but were left on

Nauru in limbo because they had been adversely assessed by ASIO after four

years or so in detention. But ASIO would not say why.

So we took their case to the Federal Court seeking judicial review of the

decision to adversely assess. Both men gave evidence. They both gave

evidence that they had never done or said or even thought anything that could

bring them within the reach of the security provisions which ASIO operate

under. They were not challenged in that evidence. They were not cross-

examined at all about that evidence and no evidence was put up by the

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Government to suggest anything that they had ever done that would justify an

adverse assessment. ASIO’s argument to the Trial Judge was – You do not

know what we took into account in adversely assessing therefore you cannot

say we were wrong. The Judge agreed with that. Welcome to Kafka territory.

Because they were non-citizens their only avenue of recourse, such as it was,

was to judicial review. If you are a citizen who is adversely assessed you can

go to the Administrative Appeals Tribunal and have a merits review. I ran a

test case a couple of years ago for an Australian citizen who had been

adversely assessed, and as a result his passport had been cancelled. That’s

when he found out about the adverse assessment.

So he applied to the AAT for a review of ASIO’s decision to adversely assess.

The Tribunal made the usual orders requiring ASIO to hand over all

documents that were relevant to the case. It handed over some of them but

they were redacted very substantially, so that all that was left were a couple of

headings and some punctuation. They had other documents which they

declared existed but were not handed over at all. All of this was justified by a

Certificate of the Attorney-General certifying that it would be contrary to the

public interest for the applicant or his legal advisers to see the unredacted

documents or the withheld documents, and he also went on to withhold

permission for the applicant – or anyone acting on his behalf - to be present in

the Tribunal when the Government gave its evidence or made its

submissions.

So in a two day hearing I spent most of the two days sitting outside of the

hearing room, with my client and my junior, wondering what the hell was going

on inside. My submissions were quite brief because I didn’t really know what I

had to say. The reasons from the Tribunal came down in two parts. Open

reasons and secret reasons. The open reasons said that there was nothing in

the material available to the applicant to justify the adverse assessment. But

for the reasons given in the secret reasons the adverse assessment was

upheld. That then went on appeal to the Federal Court and the Federal Court

said that there was nothing wrong with that approach to the problem.

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So there you have a difficulty with ASIO. They simply will not tell you anything

at all about why they have adversely assessed. So to get back where I left off.

We have a number of people who have come to Australia, about 50 of them at

the moment, who have come to Australia, have been assessed as refugees,

and have been adversely assessed by ASIO. They cannot find out what

they’ve done or said that justifies an adverse assessment but their visa is

either refused or revoked and they are held in detention.

Now because they are refugees they cannot be sent back to where they came

from, and because they have been adversely assessed they cannot be given

a visa, so they are stuck in Mr Al Kateb’s permanent limbo.

There was a startling case in the Australian newspapers just a few weeks ago

of a Sri Lankan woman called Ranjeeni who has children aged 6 and 9 years.

Her first husband was killed in Sir Lanka. She fled Sri Lanka, and was granted

asylum. She and her new husband were called in to the Immigration

Department in Melbourne just before Mother’s Day this year. The husband

was asked to wait in another room. After half an hour officers of the

Department explained to him that his wife and children have now been sent

off to Villawood in New South Wales, where they will remain in detention

because her visa had been revoked because she has been adversely

assessed by ASIO.

The husband lives and works in Melbourne. It’s several hours to get from

Melbourne to Sydney by plane. He cannot afford to quit his job in order to

visit his wife, so the family has been physically split between two States and

on the current law there is a prospect that she and her children will spend the

rest of their lives in detention without knowing why.

It is one of those dreadful things which, if we had proper human rights

legislation, I think would not be possible. Or if we had a Government that

cared enough it probably would be worked out slightly better. And that brings

me to this notion of social attitudes and what Governments can get away with

when social attitudes are as they seem to be.

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John Howard really lowered the standards with the Tampa episode. What

happened with the Tampa was that in August 2001 a boat load of Hazara

refugees from Afghanistan were heading off from Indonesia in the direction of

Christmas Island which is a tiny outcrop of Australia in the Indian ocean.

Their boat began to founder. The Australian Government knew about it and

radioed the Tampa, a Norwegian cargo ship, and asked it to rescue them. The

captain of the Tampa later said that he thought the boat might have had 40 or

50 people on it and was astounded when 434 people climbed out of it onto the

deck of the Tampa. There were pregnant women, there were people in poor

health, there were people who were fainting and so on.

The captain told the Australian Government that he needed medical help.

They agreed with that but did not send it. He decided to head for Christmas

Island. Apart from any other consideration his ship was licensed for 50 people

and all of a sudden he is overloaded to the tune of 434. He said he was going

to put them ashore at Christmas Island and Howard sent the message directly

that the ship would be refused entry. And so there was a stand-off: the

Tampa hovered just outside the Australian territorial limits off Christmas Island

until eventually enough people were in obvious distress that the Captain of the

ship decided to defy the Government. He steamed into the waters off

Christmas Island whereupon Australia sent out the SAS to take command of

the bridge under arms.

For some days, the Tampa was stranded, with 434 bedraggled refugees

sweltering on the steel deck of a ship in the tropical sun. A friend of mine

worked up what he thought was a reasonable case theory for breaking the

impasse and asked me if I would act pro bono. Now I didn’t know anything

about the treatment of refugees then and I didn’t know anything about

maritime law and still don’t but ignorance being my common weapon I agreed

to do the case because it seems plainly wrong to keep any group of human

beings on the steel deck of a ship in the tropical sun. It just seemed a bad

thing to do and I thought it was a very miserable thing.

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So we rolled up to court on Friday afternoon to get an injunction requiring the

government to bring the refugees ashore, detain them and process their

asylum claims. I thought it would be one of those sort of quick in and out get

an injunction, go off for the weekend. The Solicitor General came down and

said he wanted a trial immediately, so the trial started the next day, Saturday,

and the case ran through to the following Wednesday.

It is little-known that we actually won at first instance. The reason it is not well-

known is that the judgment at first instance was handed down at 2.15 p.m.

Melbourne time on 11th September 2001. Nine hours before the attack on

America. The appeal came on a couple of days later and by 2 to 1 majority

the full Federal Court overruled the primary decision.

One of the interesting things and this is - really wow I’m getting off the subject

- one of the interesting consequences of that case that I’m sure is familiar to

you. If ever you do a pro bono case in any area you find a lot of people want

you to do their pro bono case in that area, so it’s amazing how you become an

expert in the field. I found myself very quickly being inundated with requests

to act pro bono for refugees and most refugee cases in Australia are done pro

bono on the refugee’s side because almost by definition the refugees have no

money. Legal aid is forbidden to run their cases and so they depend on

unpaid private support.

What really galvanised me was not the Tampa case but another I received

later. It was for an Iranian family, a mum and dad and two daughters aged 10

and 7 at the time. They had fled Iran. They are members of the Sabean

Mandeans, a pre-Christian group which is very badly treated traditionally by

the Muslim majority in Iran. They’d fled Iran after a terrible incident and they

ended up in Woomera detention centre.

After 15 months in Woomera they were all doing it pretty tough, but especially

the 10 year old girl. She had stopped eating. She had stopped drinking. She

had stopped grooming herself. She was incontinent by day and by night. A

psychiatrist who heard about the case and went to the Detention Centre – it’s

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a 5 or 6 hour drive outside Adelaide - and he wrote a scathing report saying

that this child was at extreme risk. He said that for her safety it was essential

that the family be sent to a metropolitan detention centre where she could get

daily clinical help. The department ignored that for a couple of months. He

wrote another report, even more trenchant, which finished with the

observation that the entire family had already suffered in Woomera beyond

the human capacity to endure. He said that the family had to be sent to a

metropolitan camp so this kid could get daily clinical help.

Eventually, after another 4 or 5 weeks delay, the department relented and

moved them from Woomera in the South Australian desert to Maribyrnong

detention centre in the western suburbs of Melbourne. And although the

reason for moving was that the kid needed daily clinical help, for the first two

weeks of their stay no-one came to see her. Not a nurse or a social worker or

anyone and on a Sunday night in May of 2002, while her mother and father

and sister were off in the mess hall having their dinner, this little girl took a bed

sheet and hanged herself.

Now she was only little and she did not know how to tie the knot properly so

she was still strangling when the family came back from dinner and they took

her down and she and her mother were then taken to the general hospital

nearby, with two guards so they are still officially in immigration detention.

The lawyer who had been looking after their visa application whilst they were

in Melbourne heard about this and went to the hospital at 9 or 9.30 that night.

He said hello to the guards, who know him well enough because he is a

regular visitor at Maribyrning, and he said: I just want to speak to the mother

to see if there is anything I can do to help. And the guards said to him “You’re

not allowed to see them, because lawyers’ visiting hours in detention are 9 to

5.” And they sent him away.

He then rang me at home and told me what had happened, and I still feel the

shock of knowing that the country that I grew up in could treat a child so badly

as to drive her to try and kill herself and treat her so carelessly as to turn away

someone who was just offering simple human help. It is a shocking thing.

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This led to a switch which - at this point I am now officially utterly removed

from the topic. Here is the point of departure - Having had a really

conservative upbringing and a silver tail commercial silk’s existence I

suddenly found myself being impelled to criticise the Government sharply,

because every single case I did in this area threw up more and more

examples of careless cruelty of the sort that I have just told you about. Too

many examples to talk about here. And I worked this out: First of all, it was

clear that the Howard Government was making political capital by

conspicuously mistreating refugees. That’s a horrible thought when you focus

on it, but being tough to refugees got them votes and we’re seeing it played

out again in Australia right now. This minute. The two major parties are trying

to out-tough each other in the way they will deal with boat people

notwithstanding that we get so few.

Anyway I then, for the very first time in my life, became a political campaigner

which is a very weird space for a novice. I suppose there must be quite a few

of you in this room who have been political campaigners, but for me it was a

novelty and not an attractive one. But I worked on this theory: that the only

way to get the law changed was to get the Government to change it, and to

get them to do that you would have to change the public attitude to this,

because as soon as the Government saw which way the wind was blowing

they would change the law. It’s the Jim Hacker model of government: “I am

their leader, I must follow them”.

I knew that if the law was applied according to its terms, the result was

injustice. That’s a devastating thing for a lawyer. I had never encountered that

directly before, but that was the position we had got to. So I became a

campaigner and what I discovered then was quite interesting.

First it’s the only time in my life I have received death threats. That was a

revelation about the country I grew up in. On the first day of the Tampa case I

got back to Chambers and received I think 3 or 4 death threats by telephone.

This still strikes me as a weird thing: I’m going off pro bono trying to help

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people who obviously could not help themselves, and for this I get death

threats.

And as I became increasingly vocal as a campaigner, I started getting hate

mail. Whenever I spoke publicly about the subject, which was quite often, I

would get hate mail. And that’s a fascinating experience for a polite,

conservative, middle-class lawyer. When I say hate mail, I mean mostly

emails, but also actual letters: letters come written you know, pen and paper,

up round the side strange scrawly writing: you’ve all seen them. Now the

people who write actual letters are a very forgetful bunch. They never

remember to put their name and address.

But with email you can always reply to them even if you don’t know who they

are, and most of the hate mail came as email. And they were awfully rude.

They questioned my sincerity, my motives, my integrity, my intelligence, my

parentage…they were astoundingly , unremittingly rude. Still, I decided -

consistent with my theory that it was going to be necessary to change the

mind of the public – that here was a group who were putting their hand up

saying: I disagree with you. So I decided to answer them all.

I had not done the maths. I had not worked out how long it would take. It did

take a while, but I made a point of answering every single email. Typically

they would fall into a few observable patterns. I would sit up late at night

writing: Dear so and so. Thanks for your email. I gather you don’t agree with

me. But did you realise they haven’t broken the law and they come in small

numbers and we lock them up indefinitely, and so on.

And in most cases, that triggered a response from them. And every single

response was polite. From flaming and furious and capitals and everything to

room temperature polite. In one step. Really extraordinary. And some of them

would say Gosh I didn’t realise that. OK. Fair enough. I agree with you. And

others would say Look that’s all very interesting. I didn’t realise that but….and

then the ‘but’ would be a disguised way of saying they are Muslims or they are

different from us or I don’t like them or there’s something wrong with them. So

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I’d write back saying Thank you for getting back to me, but did you know there

is this, this and the other. I gave them the facts.

This went on for about 4 or 5 years. At the end of it – there is an interesting

lesson in advocacy here - at the end of it, I estimate that about 50% of the

people who wrote these screaming emails ended up saying, in substance:

Thank you for discussing this with me. I agree with you now. About 25%

ended up saying in substance: Thank you for discussing this with me. I don’t

agree with you but I think it’s good you stand up for what you believe in. And

the other 25% - well….

If it’s possible to move further away from the topic I’m about to do it, because

all of this hate mail basically petered out at the end of 2004 or so. The thing

had gone off the radar. The boats had pretty much stopped coming and things

were okay. And I couldn’t say I missed the hate mail, but out of the blue in

late 2007 I got an email from someone and it said – it’s not difficult to

memorise it - it said “Dear fuckwit. What makes you think that being a QC

means anyone is interested in your opinions. Why don’t you fuck off and die.”

Engaging intellectually with this is challenging. I thought his principal position

was probably right, unless it was a Judge who wrote it, but I don’t think it was.

And so rather than concede the ground I used a line which one of our political

cartoonists had given me and I wrote back saying: Dear ……Thank you for

your email. The offer of your sister is interesting. Please send photographs.

Even now five years later I get a warm glow remembering that. And he

replied. He said Fair enough. I suppose I was a bit over the top.

It occurred to me that there’s a rational mind there after all. And so I wrote

back to him saying Look I don’t mind. It’s okay but you know I’ve been talking

about this stuff for quite a while. Why did you write just now? Did it all get too

much for you? Or did you just stumble on it?

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And he wrote back saying “I should come clean. I’d had a huge night out. I

met a bloke I couldn’t stand. We were arguing about refugees. I should have

written to him I suppose. Instead I wrote to you. Please just ignore me.

Every cloud has a silver lining.

I’ll just tell you about the Bruce Trevorrow’s case. Bruce Trevorrow’s case,

and the MUA case, are the two cases I am proudest of. They’re the two cases

I think where maybe I made a bit of a difference. Bruce was born at One Mile

Camp, Meningie in November 1956. Meningie even now is a one horse town,

down on the coast of South Australia. In the 1950s it must have been a fly

speck. One Mile Camp was a settlement of Aborigines one mile outside

Meningie, because in those days - when I was a little boy going to private

school in short pants - it was illegal in South Australia for Aborigines to live

closer than one mile to a place of white settlement unless they had a permit.

Anyway on Christmas Day of 1957, when he was 13 months old, Bruce got

sick and his father was very worried about him and some people in Meningie

who had a car drove him up to the Children’s Hospital and he was admitted to

the Children’s Hospital on Christmas Day 1957. The records still survive. He

was diagnosed with gastroenteritis. He was treated appropriately and after a

week his gastro had resolved; and a week after that he was given away to a

white family. Now the white family had a daughter who was 16 years old at

the time and she remembered the day very well. She came and gave

evidence at the trial. She remembered that her parents had seen an ad in the

local newspaper offering Aboriginal babies. So they went to the Children’s

Hospital one Sunday afternoon to get an Aboriginal baby. She gave evidence

that her mother had always wanted a second daughter, and they saw this line

up of Aboriginal babies and saw a cute little curly headed girl and said We will

have that one.

They took her home and when they changed her nappy they discovered she

was a boy. That’s how Bruce was given away. Now a little bit later Bruce’s

mother managed to find an envelope and a stamp and a piece of paper and a

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pen and an address, and she wrote to the Department of Aborigines asking

how Bruce was going and when he was coming home. That letter survives on

their records and the reply survives as well. They wrote back saying He’s

doing quite well but the doctors say he is not well enough to come home yet.

It was a flat out lie. They had already given him away. And their records show

that for the next 8 years they actively prevented the mother from knowing

where her son was and prevented her from having any contact with him.

They were reunited albeit briefly when he was 10 years old. At that point the

foster mother was having some personal difficulties of her own and Bruce was

being a bit problematic. He was seen by the Child Guidance Council. When

he was 9 years old they diagnosed him as having no sense of who he was or

where he belonged. You might think that was not such a surprise.

Anyway he was getting to be a bit difficult. He was introduced to his natural

mother on his tenth birthday. His father had died a few months before so he

never met his father. It was an interesting meeting for Bruce and for his

mother. It was arranged that the following Easter he would go down to Victor

Harbour and spend Easter with his natural family. So the welfare people came

to the house and put him on the bus down Victor Harbour, waved him

goodbye and when the bus had gone the foster mother says “I won’t have him

back. He’s too much trouble”. So the welfare people posted his toys and his

books down to Victor Harbour. That’s the way he was reunited with the family

he never knew.

It didn’t take. He ended up spending the rest of his childhood in State care.

By the time he came out of State care aged 18, he was an alcoholic. His

preferred drink was menthylated spirits with orange juice. So much for State

care. Anyway Bruce led the sort of life which is fairly typical for young

Aboriginal males in Australia (a) troubled childhood; (b) difficult adolescence;

(c) periods in and out of jail; (d) minor brushes with the law; (e) sometimes

employed, sometimes not; (f) drifting around the country; (g) footloose. Every

time Bruce got into trouble with the law he would be sent for a psychiatric

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assessment and every psychiatric assessment he had from the age of 10 until

the age of 49 when he went to court on his case every psychiatric assessment

said that he had no sense of his own identity or where he belonged.

In evidence as a testimonial witness Bruce was a shocker. He was just

terrible. I mean, his mind was shot and he was a hopeless witness. But as

real evidence he was devastating, because he was clearly a broken person.

His brothers Tom and George had turned out to be leaders of their Aboriginal

community in South Australia. They had not been taken by the department

because they had not ended up in hospital. They came and gave evidence in

Bruce’s case. They were nearly late because they had been overseas

representing Australia at a meeting of Indigenous leaders on the repatriation

of Indigenous remains.

And they had come along to give evidence, and here is Bruce, standing there

hopelessly, and they’re up there - good, strong, resilient men. As an example

of human beings as real evidence it was undeniable that Bruce had been

thoroughly destroyed.

Now talk about Governments being dishonest. The South Australian

Government denied every single allegation in the Statement of Claim. They

denied that he had been taken unlawfully even though at the time that Bruce

was taken they had a written Opinion from the Crown solicitor in their files

saying they do not have legal power to remove Aboriginal children from their

parents. It couldn’t have been clearer. (Their case was that the Crown

Solicitor was wrong).

Their records included letters from the department to their counterparts in

other states saying It’s a great inconvenience. We don’t have legal power to

remove children from their parents but just between us we do it whenever we

get the chance. They were so candid in those days.

The difficulty confronting us was that the Government denied everything. They

even denied that it is harmful to a child to be removed from his or her primary

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carer. Which was fascinating. It gave us a chance to bring out all of John

Bowlby’s learning on the subject.

The Government also said well (a) he’s not damaged but, if he is damaged,

it’s because he’s a product of incest. Now back in those days illegitimate

Aboriginal children fell into a slightly lower and disadvantage category.

Bruce’s parents were not married. Aboriginal women who were not married to

the father would often put down the name of a relative with the same surname

as the father, in order to cover the fact that the child was illegitimate. Bruce’s

mother had given, as the father’s name, the name of her brother.

So the Government of South Australia, the keeper of the records of births,

deaths and marriages, ran seriously the proposition that if Bruce was

damaged it was because he is the product of incest. They persisted with this

argument, albeit faintly, even after we tendered from their records the death

certificate which showed that the ostensible father on the birth certificate had

died ten years before Bruce was born. IVF was not that advanced in Meningie

in 1956.

The decision was reserved for 18 months, and I got increasingly despondent

at what was going to happen. Eventually, the judge produced a very long

judgment in which he awarded Bruce a total of $800,000. The State’s appeal

was unanimously dismissed. Bruce is still the only member of the stolen

generation to have been formally recognised by the system as having been

taken illegally.

One of the important points to come out of the case is the damage which is

done not only to the individuals who are taken, but to their descendants.

Bruce, poor man, was broken as a child by his experience. He turned out to

be a hopeless husband and a dreadful father and the damage which he

suffered has been passed on to them and I am sure that, in a smaller degree,

they will pass it on to their children. Because dysfunctional people tend to be

dysfunctional citizens and dysfunctional parents and the damage echoes

down the generations.

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Some Australians throw up their hands in despair and say Why are Aborigines

so hopeless? Well look around, consider what we did to them, and take a

lucky guess. We took their land and then we took their children and then we

called them all hopeless losers because of the damage that we had inflicted

on them. It took until 1992 for us to acknowledge that the land was theirs

when white settlers arrived; it took until 2007 for us to recognise that we

inflicted terrible harm on them by taking their children. And we blame them for

being as they are.

Thank you very much.