By Dr George Venturini*

Testing the thesis . . . Disdain for the importance of human rights (continued)

Already in 2009 events had confirmed that two formidable obstacles stand in the way to justice for all. The first is the fact that powerful states continue to stand above the law, outside effective international scrutiny. The other is that powerful states manipulate the law, shielding their allies from scrutiny and pushing for accountability mainly when politically expedient. In so doing they provide a pretext to other states or block of states to politicise justice in the same way.

Three cases in particular demonstrate that, when in difficulty over the alleged behaviour by some of its subjects, Australia abandons them.

David Hicks, Australia-born, was captured in Afghanistan in 2001, sold to American Special Forces by their allies for US$ 1,000, transported to Guantánamo Bay, Cuba, repeatedly tortured, tried by a so-called special tribunal, found guilty and returned to Australia in 2007 under certain restrictive conditions. He had been abandoned by the Howard Government. That government’s Attorney-General even went to the extent of writing that sleep-depravation, as suffered by Hicks, is not a form of torture. His name: Philip Ruddock. On 27 May 2015 Ruddock was appointed by the Abbott Government to the new office of Special Envoy for Citizenship and Community Engagement.

Mamdouh Habib, an Egyptian born Australian Muslim was kidnapped in Pakistan in 2001, ‘renditioned’ to Egypt, tortured there and subsequently at Guantánamo, where he was kept until 2005.  According to Habib, an Australian consular officer was present to his torture in Egypt. The Howard Government’s Foreign Minister publicly challenged Habib’s claims to torture, saying “no evidence has been found to prove that torture has been used at the camp.” Query: did the government ever inquire about the claim of torture ?

On 26 April 2011 former Foreign Affairs Minister Alexander Downer, since March 2014 to be known as His Excellency The Honourable Alexander Downer, AC, Australian High Commissioner to the United Kingdom – appointed by the Abbott Government, found time to express his belief that both Hicks and Habib were “terrible people – absolutely shocking”!

A better know case is that of Julian Assange, still a ‘fugitive from justice’ holed up in the Ecuadorian Embassy in London, having lost the appeal against a February 2011 decision by an English court to extradite him to Sweden for questioning in relation to a sexual assault investigation. He has repeatedly said and maintains that the allegations of wrongdoing are “without basis.” The Australian Ambassador in Stockholm wrote to the Swedish Justice Minister and asked her to ensure that the “case would proceed in accordance with due process and the provisions prescribed under Swedish law.” Assange laments that the Rudd/Gillard Government and then the Gillard Government and then, briefly, the Rudd Government, and the Abbott Government have abandoned him, there having been no further contact with him since December 2010. He also charges those governments with having passed ‘compromising’ information to the United States Government, which may want to send Assange to trial for treason.

What is important in all this is the ‘flexibility’ with which Australian Governments approach their international law obligations: no respect of the Indigenous People, no respect of the human rights of asylum seekers, no respect of those who fall short of the accepted norms of ‘good living’ according to Australian rules – in other words a self-definition of what constitutes law and order in the slogan ‘law-and-order’, which could be uttered by any authoritarian, un-democratic, ultimately fascist regime.

Hicks was a converted Muslim, Habib is the real thing, Assange is nothing less than a troublemaker. He abides by Orwell’s dictum that “During times of universal deceit, telling the truth becomes a revolutionary act.”

Amnesty International 2010 State of the World’s Human Rights Report noted that Australia took positive action on human rights in 2009 by signing the U.N. Declaration on the Rights of Indigenous Peoples, committing to a National Plan to Reduce Violence against Women and their Children, and ceasing to charge asylum-seekers for the cost of their detention. Yet, ever since, Indigenous People have continued to be discriminated against throughout the Northern Territory and asylum seekers who arrived by boat were initially detained on Christmas Island, then imprisoned in concentration camps in Manus Island or Nauru – for life, by decision of the two-parties-two-Rightwings of the bird which is called ‘the Westminster System’. These discriminatory policies remain in place. Protests and riots by asylum-seeker detainees have occurred almost every month – in vain.

In vain as well, since 2010 Amnesty International highlighted the government’s failure to implement a national Human Rights Act despite the recommendation of its own National Human Rights Consultation Committee, and the discriminatory freeze on processing of asylum claims from Afghan and Sri Lankan nationals.

“As a member of the G20, Australia has a real opportunity to lead by example, but to do this it must stop putting political self-interest ahead of its legal responsibilities and deliver on its commitments to human rights.” Claire Mallinson, National Director, Amnesty International Australia said. By freezing the processing of asylum applications from people fleeing two of the world’s most violent conflict zones: Afghanistan and Sri Lanka, the Australian Government failed to fulfil its international legal responsibilities. This is a glaring example of a government placing political self-interest above upholding its human rights responsibilities and the well-being of those in need.

Despite some promising steps, Australia is continuously failing to deliver sustainable, long-term solutions to human rights problems.

On 14 February 2015 it was revealed that the Abbott Government had tried to remove the President of the Australian Human Rights Commission, Professor Gillian Triggs, following the tabling  of the report: The forgotten children: National Inquiry into children in immigration detention 2014.

Professor Triggs, a distinguished former barrister and academic, emeritus professor at the University of Sydney, and former dean of the Sydney Law School between 2007 and 2012, was appointed President of the Commission in July 2012 for a fixed five-year term which is intended to protect the president from political interference. She could only be dismissed for bankruptcy or serious misconduct.

The Report documented that Australia is violating detained children’s basic rights, and seriously compromises their mental and emotional health and normal development.

No country other than Australia mandates indefinite closed detention of children arriving on their shores. By the end of January 2014 over 1,000 children in Australia had been held in immigration detention for more than seven months on average. On 3 February 2014, as President of the Australian Human Rights Commission, Professor Triggs had announced a national inquiry into children in immigration detention.

The Inquiry investigated the policy and practice of detaining asylum seeker children which had been supported by both Labor and Coalition governments over an 18-month period, from January 2013 to September 2014.

The aim of the Inquiry was not to reconsider the Human Rights Commission’s already formed legal views of immigration detention, but to investigate how the health, wellbeing and development of children was being affected by life in detention. Through visits to eleven different detention centres, the Commission conducted interviews with 1,129 children and parents in immigration detention in Australia, using a standardised questionnaire. The Commission also conducted 104 interviews with people in the community who had formerly been detained; received 239 submissions; held five public hearings with 41 witnesses, and obtained data from the Department of Immigration and Border Protection.

A crucial aspect of the Inquiry was the involvement of internationally recognised medical experts as consultants who accompanied Inquiry staff on each of the detention centre visits, and submitted expert reports of their observations. The medical professional community also made important contributions through the submissions process and the public hearings.

The Commission had provided its report to the government on 11 November 2014. The Attorney-General had tabled the report in Federal Parliament on 11 February 2015.

Professor Triggs was quite aware that the document would be branded as ‘political’, and did her best to defuse the forthcoming problem in the foreword: “By July 2013, the  number of children detained reached 1992. As the federal election was imminent, I decided o await the outcome of the election, and any government changes in asylum seeker policy, before considering launching an Inquiry. By February this year [2014], it became apparent that there had been a slowing down of the release of children. Over the first six months of the new Coalition Government the  numbers of children in detention remained relatively constant. Not only were over 1,000 children held in detention by February 2014, but also they were being held for longer periods than in the past, with no pathway to resettlement.

In these circumstances, I decided to exercise the Commission’s powers under the Australian Human Rights Commission Act 1986 (Cth) to hold a National Inquiry into Children in Immigration Detention.”

Tomorrow: Testing the thesis . . . Disdain for the importance of human rights (continued)

* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.

Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra. He may be reached at George.Venturini@bigpond.com.au.