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Alastair Nicholson: Human Rights Under the Howard Government

"The situation of the protection of rights in Australia is particularly precarious because of the absence of any form of a Bill of Rights at a national level. We are now one of the few civilised countries in the world to lack this protection."

"The introduction of such a bill is anathema to conservatives, largely because it has the potential to interfere with their exercise of power when in government."

"This is precisely why we need it, particularly when a conservative government is intent upon stacking the courts and particularly the High Court of Australia, with "Capital C" conservatives as the Howard Government has done."

Australian Nursing Federation (Vic) Conference
Flemington Racecourse
Wednesday 27 July 2007

Human Rights Under the Howard Government

An Address


The Honourable Alastair Nicholson AO, RFD, QC
Former Chief Justice
Family Court of Australia
Honorary Professorial Research Fellow
Department of Criminology
University of Melbourne

History will I believe, come to regard the rule of the Howard Government over this country as one of the darker periods of the country's history. It will do so not because of any economic failures of the Government, or of any particular incompetency on its part, but rather because of its destruction of the accepted structures of our community and its almost complete disregard of the human rights of not only Australians, but of so many other people, both within and outside Australia.

As members of the nursing profession I know that you are well attuned to the need for the protection of human rights and the provision of services to those in need. Sadly our much vaunted economic mangers in Government have not delivered very well in this area, I believe because they have a complete lack of empathy for people in need or indeed anyone who does not fit their comfortable middle class perception.

Fortunately it appears that the innate good sense of the Australian people may be recognising this and it may be that we are embarking upon the last few months of its rule. However, the ill effects of this regime will be felt for years to come. Under Howard, every public office holder whether judicial or administrative, has had to undergo rigid screening for political correctness along conservative lines. Many highly talented people have been overlooked for office as a result and many drones have been appointed instead. For example, the Howard Government will have made six appointments to the High Court of Australia by the time of the next election and will have the opportunity to make two more if re-elected. All of its appointments have been conservative and the High Court now reflects that position. Justice Michael Kirby, who at the time of his appointment would have been regarded as in the centre of the court, is now in virtual permanent dissent. Its most infamous decision in recent times has been that the Executive has the power to hold an asylum seeker in permanent detention without trial. This would have been unthinkable to earlier courts. It was in fact too much for the present Chief Justice, himself a Howard appointee, but not to the majority of the Court.

Similarly we have the Board of the ABC stacked with appointees of the calibre of Janet Albrechtson, one of Murdoch's infamous dancing bears (as described by Mark Latham) and Keith Windschuttle, an historian whose views about our Indigenous people suit the Government line.

The same can be said about countless other Boards of lesser significance such as the Family Law Council, set up to advise the Attorney General on family law issues, which is carefully stacked with Howard appointees chosen for political compliance.

It will be many years before this malign influence is eradicated. Equally worrying is that the Howard example may produce a corresponding reaction on the part of a new Government so that we will see a replication of the US position where senior public servants are expected to support the political line of the President. At least in the US this is recognised to the point where such people are expected to depart from executive positions along with the outgoing President, whereas here they stay.

The media has recently contained much discussion about why the Howard Government should be so unpopular, given the satisfactory nature of the economy and its apparent good economic management. Various theories have been advanced, but to date I have seen little mention of what I believe to be the real cause, namely that the Government has lost the trust and respect of the majority of the Australian people. I believe that it has done so because it has failed to demonstrate respect for or empathy with the people and as part of that process has trampled over liberties and freedoms that are dear to all of us.

In particular it has shown scant respect for human rights as it has demonstrated on so many occasions and in so many ways, from the treatment to asylum seekers, the Tampa incident and the children overboard affair to the treatment of David Hicks, the treatment of Indigenous people, its industrial laws and its terror laws.

Commentators, particularly in the Murdoch Press, have been inclined to discount these factors and to have ascribed human rights concerns to only a few radical lawyers and other left leaning "bleeding hearts". However, I believe that they have begun to assume real importance in the eyes of the community, an importance which unfortunately seems to have escaped the ALP opposition.

The fact that lawyers have adopted such a prominent position in drawing attention to these matters should not be a real surprise. The rule of law is an essential component of a free society and the law provides the structure by which freedom and democracy can be achieved. Lawyers are in as good a position as any to perceive real threats to the rule of law and an interesting feature of the concerns that have been expressed is that they come from a very wide range of lawyers indeed. In particular, the Law Council of Australia and its component associations have been very active in criticising the Government, as have a wide range of practising and academic lawyers and distinguished former judges.

The question must be asked as to why we should be concerned with human rights and the rule of law. The answer I believe is a simple one. It was a lack of concern for such rights that has given us the horrors of the holocaust, the gulags of Communism, ethnic cleansing in Europe and Africa and the various wars that have plagued us. It was those concerns that gave rise to a strengthening human rights movement following the horrors of the Second World War and which found their embodiment in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and many other international instruments including the United Nations Convention on the Rights of the Child.

It has become common amongst conservatives to mock these instruments and the ideals that they encompass as ineffective and impracticable. While there may be substance in the criticism that they are not always observed and are sometimes ineffectual, these critics never address the issue of what should replace them. My point is that once we depart from these guiding principles there is nothing to replace them and the law of the jungle prevails or, as we have seen so often in the context of the Howard Government, the end justifies the means, whatever those means may be.

The situation of the protection of rights in Australia is particularly precarious because of the absence of any form of a Bill of Rights at a national level. We are now one of the few civilised countries in the world to lack this protection. The introduction of such a bill is anathema to conservatives, largely because it has the potential to interfere with their exercise of power when in government. This is precisely why we need it, particularly when a conservative government is intent upon stacking the courts and particularly the High Court of Australia, with "Capital C" conservatives as the Howard Government has done.

Allied with this opposition to a Bill of Rights is a conservative criticism of judges who do seek to protect human rights as "judicial activists" and in recent weeks we have seen a good example of this in diatribes in the Australian newspaper as to the supposed evils of the High Court during the period that Sir Anthony Mason was Chief Justice. If one reads these criticisms carefully they are based upon criticisms of that court for in one case holding that since we are a democracy there is an implied right of freedom of speech to be found in the Constitution, in another for finding as it did in Mabo that indigenous people have rights that pre-existed the European invasion of this country and in a third for holding that the Minister for Immigration was obliged to have regard to the United Nations Convention on the Rights of the Child in deciding whether or not to deport a parent of children. On the face of it none of these decisions were particular radical but were obviously too much for Howard supporters. In fact many lawyers regard the contribution of judges like Mason, Brennan, Deane, Gaudron and Toohey as representing the high point in the history of the High Court. Since the advent of the Howard Government its reputation for innovation and legal scholarship extending beyond that of mere technicians has deteriorated significantly.

I want to now turn briefly to the record of the Howard Government on human rights.

It first distinguished itself by inhuman interpretations of the immigration laws to justify the holding of large groups of men women and children who had committed no offence in detention centres for periods of many years. It succeeded in doing so with the apparent approval of the Australian people by demonising these unfortunate people as "queue jumpers" and potential terrorists. Laws prevented them from being publicly identified and they were and are held in remote locations, or as part of the so-called Pacific Solution offshore. Children in particular suffered appalling mistreatment and their parents were falsely maligned as the sort of people who would throw children into the sea.

When protests extended to the point where these desperate people were sewing their lips together this was used as a further basis for criticising them rather than examining why they were prepared to go to such extreme lengths to make their point.

We are only now beginning to hear of the Government's mistreatment of our own naval personnel for political purposes to the point where national security has been endangered and they themselves have felt demeaned by being used to oppress these unfortunate people.

Who can forget the disgraceful affair of the Tampa? The Government derived great domestic political capital from its xenophobic behaviour, particularly in the shadow of 9/11 and in late 2001, won an election that it had been expected to lose as a result. Out the door went all issues of principle relating to maritime rescue or treatment of refugees and instead we had the improper use of the Defence Force, the use of Pacific client states in a cynical ruse to get around Australian law and the complete obliteration of the rights of refugees.

It now appears to be at least a possibility that the Government had advice from the Attorney General's Department that it was acting unlawfully in relation to the Tampa, although I note that this has been denied by Mr Ruddock, who claimed that the Government's actions were endorsed by the Federal Court. While strictly correct, this argument is somewhat disingenuous. A Federal Court judge had at first instance found the Commonwealth to be acting unlawfully. On appeal, the Full Court by a majority of two to one, with Chief Justice Black dissenting, found that the Commonwealth acted within power. Therefore the reality is that two Federal Court judges found that the Commonwealth had acted unlawfully and two found in its favour. The matter was never tested in the High Court. It is thus far from free of doubt and the question that is not answered is what the nature of the original advice was to the Government. The best that can be said in favour of the Government was that it was operating in an area of very doubtful legality and chose to ignore the real risk that it was acting unlawfully. The fact that it realised this can also be inferred from the fact that it then passed retrospective legislation to shore up its position and to protect itself from civil actions for damages.

Meanwhile the then Beazley led Opposition, perhaps because of its own doubtful record in the migration area, adopted a craven position of support and compliance, also for perceived but not real, political advantage.

To that sorry episode can be added the Children Overboard affair and the appalling losses suffered with the sinking of the SIEV X. The circumstances of how that boat came to sink with such a huge loss of life will hopefully receive further detailed examination in the future. Whatever they were, I doubt that they will reflect credit upon Australia.

The full enormity of the Government's actions in relation to asylum seekers only began to hit home with cases such as that of Cornelia Rau and only then because it emerged that we were also treating our own citizens in the same appalling fashion as we had been treating others. It took a controversy in part ignited by a decision of the Family Court as to the detention of children which impelled the Government to alter its policy regarding the method of detention of children and this was as late as 2003.

Next came the shameful treatment of David Hicks, which continues to this day. He is currently imprisoned in Adelaide with the complicity of the Australian Government, having pleaded to a non existent offence before an illegal court as providing the only avenue of escape from an interminable period of detention. In my view and in the view of a number of distinguished legal commentators, the complicity of Australian Government Ministers in the so-called trial of Hicks involved them in the commission of a war crime and a crime against Australian law.

A further example is to be found in the Government's industrial legislation. At least in this area the ALP has strongly opposed it, as have the majority of the Australian people. Its purpose was expressed to be to provide choice in the workplace, but there can be no doubt that its real purpose was to further reduce the rights of every working person in Australia to a point where they will become helpless victims of the market and those who successfully manipulate it from time to time. Young people are amongst the many victims. I note that the Government's current propaganda suggests that there is protection for young people in the legislation. However, nowhere does it recognise the unequal bargaining power of young people with their potential or actual employer. The attack on the union movement contained in the legislation similarly prevents unions from carrying out their traditional role of representing the workers and protecting them from exploitation. This legislation represents a deliberate attack on the Australian people and their traditional rights and liberties.

Another target has been the Indigenous people. After 10 years of neglect we have the spectacle of the PM and his Minister for Aboriginal Affairs conducting a manufactured campaign to control alchohol and child abuse in the Northern Territory. As is usual their approach is a punitive one, involving little or no consultation with the Indigenous people themselves. The army is sent in and used in a way entirely inconsistent with its proper role, as has occurred with the Navy in relation to asylum seekers. The approach is purely political and calculated to attract votes upon the basis that something is being done about what is seen as a purely Indigenous problem. As is also usual, the Leader of the Opposition falls meekly into line.

I have news for both of them. Child abuse and alchohol abuse is in fact a major problem within the broad Australian community and one that is in urgent need of address. The problem is not going to be solved by flying in medical experts and the Army any more than it is going to be solved by doing so in the Northern Territory. Its solution is going to need more far reaching and statesman like approaches and will involve direct conflict with the liquor industry and the huge amounts of money that it can deploy against a political threat. It is far easier to target and vilify the Indigenous community, but it is not going to solve their problems or ours.

I now turn to the anti terrorist legislation. The events of recent weeks involving Dr Haneef have highlighted the problems of this legislation and the difficulty of fairly administering it. Professor George Williams summarised the problem well when he said in a 2005 article:

"With each new terrorist attack, it is possible that governments will seek harsher and harsher national security laws. Other nations are in the same cycle, in what appears to be a race to the bottom, although their laws are at least tempered by their explicit protection of fundamental rights.

Driven by fear and the need to act, we run the risk of a series of overreactions. This is the very dynamic that terrorists rely upon. What they cannot achieve by military might, they seek to achieve by stimulating our fears. Indeed, it is by our own actions that we are likely to isolate and ostracise members of our community who might then become targets for terrorist recruitment. It is also by our own actions that we travel further from our ideal of what a democratic and open society based upon the rule of law should be" [1]

In my view the treatment of Dr Haneef provides a perfect example of all that it wrong with anti terrorist legislation and the lemming like rush with which it was enacted.

I doubt that anyone even as late as the 1980s could have contemplated an Australian Government using mandatory detention against innocent men women and children who had committed no crime other than entering this country seeking succour and assistance. This has since become so common place that the Government, cravenly supported by the Opposition has now extended this sort of treatment to citizens and others lawfully resident in Australia, on the suspicion of secret policemen and faceless intelligence operatives that these people may commit a crime.

In a submission to which I was a party to a 2005 Senate Committee, we said:

It is the primary contention of those making this submission that much of the present Bill is fatally flawed and should largely be abandoned. Particularly objectionable aspects of it are the probably unconstitutional provisions for preventative detention and control orders and the secrecy provisions that surround them. The secrecy provisions are of particular concern in that they are a grave interference with the right of freedom of speech and cloak the activities of Government in such a way that they are not open to proper scrutiny. Further the secrecy that surrounds the process is the antithesis of justice as we know it in our community, an essential aspect being that it is public and accountable.

There are however other problem areas, including the breadth of the definition of terrorist organisations and particularly the 'advocacy' clause, the nature of the proposed sedition laws and the hitherto unprecedented right of police to stop and request details from citizens.

We also have grave concerns about the provisions for judicial review and as to whether they can be properly characterised as judicial review at all.

We continued:

The record of the Executive in administering similar legislation to the anti-terrorism legislation is not a good one. The problem about this sort of legislation is that it is likely to lead to a situation where Government and its agencies will use it for other and improper purposes, including its own political ends. Alternatively, those responsible for its administration will bungle its use in such a way that it will have the effect of blighting people's lives in the same way as the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has done in respect of many of the asylum seekers under its charge.

While these views were predictably ignored by the Committee and the Government, I suggest that the Haneef case strongly supports their accuracy.

Let us briefly look at what has occurred. A serious terrorist incident occurred in the UK. The Australian Federal Police rightly sought to examine possible links within Australia and as such interviewed Dr Haneef, who was a distant relative of and had some connection to the suspected terrorists.

There is no suggestion that Dr Haneef was unco-operative and indeed it was only some days later that he first requested a lawyer. He made a detailed statement that has now been publicised that contained no admission of guilt. He was held in custody upon the order of an anonymous magistrate for some 7 days. When he did obtain the services of a lawyer the lawyer was not provided with any detail of the allegations against him or any material that the police intended to rely upon. When the magistrate did not grant a further extension of time to interview hime he was charged with an offence constituted by the alleged supply of a telephone SIM card with some unused time to one of the alleged offenders before he left the UK to come to Australia.

He then applied for bail, which was granted by an identified magistrate, who was subsequently vilified by the Attorney-General for doing so. Despite the views of Mr Ruddock this decision was entirely reasonable given the obviously weak case outlined against Haneef. It later emerged that there was a serious overstatement in that case as to the alleged use of the SIM card which it appears was not used by the suspect as part of the terrorist attempt but was simply found in his possession and other defects in the case have since emerged.

Up to this point it appears that while the police had obviously over reacted and misused the law, Haneef had been released on bail. Unless the police could produce something more, the chance of his eventually being convicted was negligible. It was then that the Government showed its true colours. Whatever the outcome of the current Federal Court proceedings, it is clear that the intervention of the Immigration Minister Kevin Andrews in cancelling Haneef's visa was a highly political act, indicative of the Government's desire to overcome any embarassment about the proceedings. It was also one taken with the knowledge and connivance of the Prime Minister, as he has admitted. It almost certainly was one taken with the connivance and knowledge of the Attorney-General as well. It displays the consistent vindictiveness and sheer bastardry so typical of this Government in dealing with this type of issue and provides clear evidence that it cannot be trusted to exercise the sorts of powers contained in the Migration Act or the anti-terrorism legislation.

I commend the remarks of the Democrat Leader, Senator Bartlett, concerning this case as follows:

Despite the many examples over the years of Ministers using powers under the Migration Act to lock up people for years without charge or trial, and to capriciously deport people into danger without access to independent appeal or scrutiny of their reasons or actions, many Australians seemed not to comprehend just how grievously those unconstrained ministerial powers and discretions offend our fundamental democratic norms.

Campaigns by many people, including myself, over many years about the dangerous and unfair nature of such open-ended powers have only made slow progress in the face of public indifference or politically manufactured fear towards migrants.

However, the treatment of Dr Haneef has been so blatantly unfair, unreasonable, malevolent and politically motivated that few Australians could have failed to notice. One does not need any imagination to think how insecure hundreds of thousands of people living and working in Australia on a variety of migration visas now feel. Neither does one need any imagination to know how fearful many thousands of Australians now are, having seen that even the most innocent of contact through an email, a conversation, a mobile phone, can put one at real risk of guilt by association.

There is a dark irony in the way politicians use language such as 'anti-terror measures' to justify laws which are now striking terror into the lives of thousands of Australians.

I attended the court in Brisbane where Magistrate Jacqui Payne handed down her bail decision. It is a pity her matter of fact assessment of the situation to date has not been given more attention.

It must be emphasised that at no stage did the government argue that Dr Haneef should not be released because he presented a safety risk to the Australian community. Their argument was based solely on the (ludicrous) possibility that he was a flight risk.

In coming to her decision that 'extraordinary circumstances', as defined under the Section 15AA of the Crimes Act, did exist, she specifically included factors reflecting positively on Dr Haneef's character. Yet the Immigration Minister was still able to (just) keep a straight face mere hours later in saying he had formed a 'reasonable suspicion' which led him to cancel Dr Haneef's visa on character grounds.

For years, basic legal protections built up over centuries have been eroded by federal governments seeking to grab greater power. As with any authoritarian government, this has been justified through a climate of fear where almost any injustice is meant to be tolerated to 'protect' us. Hysteria has triumphed over reason.

As magistrate Payne said in making her bail decision, no decision has zero risk -- the question is what level of risk is acceptable. We are putting the very freedoms which provide the foundation of our democracy at very great risk in the futile aim of putting ourselves at zero risk from terrorists. Our Australian values -- the very ones we are insisting new migrants learn and adopt before they can become 'real' Australians -- have never been so under threat as they are today. [2]

A further associated incident is also instructive. The media and particularly the Murdoch press has been filled with all sorts of lurid allegations suggesting a much greater involvement in the terrorist incidents in the UK by Dr Haneef and also suggesting his involvement in planned terrorist operations in Australia. These allegations were subsequently denied by the AFP. Given this climate of rumour and half truth, counsel for Dr Haneef made his statement to the AFP available to the media. He was immediately attacked by the Prime Minister and Attorney-General on the nonsensical basis that his action was in some way improper. This was clearly not so. It was Dr Haneef's statement and I can see no basis for suggesting that he was unable to release it, nor can I see any basis for an attack on his counsel for having done so. The Government reaction was typical of the sort of bullying on their part that is endemic when any action is taken that they find inconvenient. Any impropriety that was involved was clearly on their part and not on the part of the defence team.

A very serious question that now arises is as to where the ALP opposition stands on these issues. I have quoted from the leader of the Democrats. I would have expected the Leader of the Opposition to have said what he was saying and it is a matter of deep regret and personal anguish to me that he has failed to do so. The ALP has been a traditional supporter of human rights, the rule of law and individual liberty. It now seems to have abandoned this role. I find it extremely troublesome that the ALP has adopted a position of support for what I believe to be the untenable and unprincipled position of the Government.

In many ways, I regard the role of the Opposition as even more worrying than the role of the Government. The behaviour of the Labor led States and Territories in relation to anti-terrorist legislation has been equally spineless. It would appear that a more critical role is being played by the Law Council of Australia, Democrats and Greens, lawyers and civil libertarians and the Fairfax press than by the Opposition. In an earlier speech I quoted from the remarks of Denise Allen, a former ALP State member for Benalla in which she said:

"The Labor Party I know would have fought tooth and nail against Australians' involvement in Iraq without UN sanctions. They would have protected Australia from terrorism by simply not being party to an illegal war. Their voices would have been loud and would have clearly defined what they stood for. The Labor Party I know would have countered Howard's fear agenda with one of peace.

This climate of fear is Howard's creation and instead of counteracting it with an alternative, forceful, intelligent debate, the Labor Party blindly accepts it and helps promote it". [3]

Alas, that sort of Labor Party seems to be a distant memory. The problem does not end there. What is even more worrying is that even if the ALP wins the election, it is now committed to a continuation of these appalling policies, thus enabling Howard to continue to rule from his political grave. Those policies include his immigration policies, anti-terrorist legislation with all the threats that it presents to us all and his punitive policies towards the Indigenous people. If Labor is to be elected to office in the 2007 election and despite my remarks I hope that it will be, it is also to be hoped that Democrats and Greens will be elected in sufficient numbers to the Senate to protect the Australian people from these evils.

In a 2005 sketch on ABC radio John Clarke and Brian Dawe rather prophetically summarised the effect of the anti-terrorist legislation as it has now been applied to Dr Haneef in a purported interview with the Attorney-General, which I reproduce in part:

PHILIP RUDDOCK: We are bringing in some amendments, yes.

INTERVIEWER: And what is the purpose of them?

PHILIP RUDDOCK: Well, we will be giving the authorities certain powers, Bryan, the better to defend Australia from terrorism.

INTERVIEWER: What sort of powers, exactly?

PHILIP RUDDOCK: Well, they'll be able to enter premises, for example, where they think there might be terrorist activity.

INTERVIEWER: And arrest people?

PHILIP RUDDOCK: And arrest people, we hope they will, yes.

INTERVIEWER: And what will they arrest them for?

PHILIP RUDDOCK: Well, they might, for example, think they know something.


PHILIP RUDDOCK: Something maybe they shouldn't know, Bryan.

INTERVIEWER: Well, what sort of thing?

PHILIP RUDDOCK: Well, that's not specified in the legislation. This would be a matter for them.

INTERVIEWER: So, they could arrest me?

PHILIP RUDDOCK: Theoretically, Bryan, yes, if they thought you perhaps knew something.

INTERVIEWER: What sort of thing would I know?

PHILIP RUDDOCK: As I say, Bryan, this is not specified in the legislation. This would be a matter for them.

INTERVIEWER: But, Mr Ruddock, how do I establish my innocence here?

PHILIP RUDDOCK: Well, you wouldn't be innocent, Bryan, if you were being arrested, would you? They are not going to arrest you if you are innocent. They're not fools, these people.

INTERVIEWER: How do I get out of this?

PHILIP RUDDOCK: You'd have to establish, if you wanted to, Bryan, that perhaps the thing that they thought you knew you don't know.

INTERVIEWER: How do I do that?

PHILIP RUDDOCK: I have no idea, Bryan. That's not my problem.

It was funny then but less so now. [4]


[1] Gilbert + Tobin Centre of Public Law, University of New South Wales, 26 September 2005

[2] Senator Andrew Bartlett,
17July 2007

[3] Denise Allen, accessed at

[4] Australian Broadcasting Corporation
Broadcast: 30/06/2005