Human Rights Education is a Human Right

Keynote speech from the University of Melbourne Human Rights Forum and Faculty of Education Human Rights Education Conference

Friday 16 February 2007

I am delighted this Human Rights Education Conference is being held, it is timely, it is important.  The more understanding there can be about basic human rights for men, women and children, for people of all religions, for minorities, for the disadvantaged, for all people, the better it will be and the sooner our society will return to one of decency and charity.

This forum will cover a wide spectrum in human rights.  From the origins of the Universal Declaration of Human Rights itself to the class room, how to inspire students with ethical leadership, it will teach about privacy laws, it will talk about the Charter of Human Rights and Responsibilities and its implications for education, about disabled people and marginalised communities.  It will talk about the human rights of children, of values education in teaching mathematics.  It will ask the question How informed are we of the current situation?  There will be a number of practical workshops where many issues will be explored in depth.

In this opening I want to emphasize the importance of human rights in government and what happens if human rights are pushed aside.  Since the terrible attacks in the United States on 9/11 2001, governments in many places, including Australia, have played on the politics of fear and unfortunately and more tragically on the politics of division.

Drastic new laws have been introduced which diminish the rights of all Australians.  There are some who believe those laws will only apply to people who are different, to the other, to people who are not like us and who do not deserve to be treated as well as we expect to be treated.

Many of us are not aware that the Australian government, in the name of making us all safer, has legislated for more severe measures than those adopted by other democratic countries.  For example, if ASIO believes that any one of you may have observed something of interest to ASIO in pursuit of their anti-terrorist activities, you can be secretly arrested and interrogated for a week at a time.  ASIO do not have to believe that you know anything, they do not have to believe that you are planning anything, only that you have observed something you may not know you have observed.  In other words, the Government has legislated to give ASIO powers to detain a person known to be innocent, known not to be planning or executing any crime.

If you answer the questions of the authorities to their satisfaction that is all right.  But if you do not, if they believe you are reluctant or not cooperative, you can be charged and even go to jail for five years.

As a defence against such prosecution, if you can prove that you never knew anything, then you will be judged innocent but how do you prove you don’t know what you never knew in the first place?  Such is the law in Australia as it stands today.  There are many other aspects of terrorism legislation which give us great cause for concern.

In recent times, people have suffered as a result of the government’s policies.  The government would justify its actions on the basis that it is making us all safer. I would argue that the government is making us less safe, by prostitution of our basic principles, of our basic rights.  We used to be a compassionate society in the treatment of refugees fleeing terror.  The government has taught too many of us to be hard and uncaring.  Families fleeing the Taliban were demonised as illegal, as wrong-doers, as prostitutes or drug-runners, maybe terrorists.  How much Australia has changed.  Pauline Hanson said Turn the boats back in the 1990s and was heavily criticised for doing so.  When the government turned the boats back it won an election.

Refugees and asylum seekers are sent to prisons on offshore islands, whose governments are paid handsomely to allow us to do so.  They don’t have access to the law, they are for the most part people fleeing arbitrary, dictatorial regimes.

An Australian citizen, Cornelia Rau, was wrongly held in a Department of Immigration prison for many months and denied medical attention and care.  Another Australian was wrongly deported by the same Department.  While people in the department knew about it, nothing was done for years.  The Palmer and Comry Reports into the Dept of Immigration and Multicultural Affairs are a damning condemnation of the Department’s culture, of what the Department was doing in trampling on the basic rights of people.  Refugees fleeing terror were treated as illegal, virtually as criminal.  Their basic right to seek safety and a home away from terror was put aside.

No Minister, nobody in the Department seems to have been held accountable for what has happened.

David Hicks has been held for five years in Guantanamo Bay.  The Australian government has said it is quite happy with the rules and the conduct of Military Tribunals and indeed that it’s quite happy with the conditions of people in prisons in Guantanamo Bay.  The British Government was not and got its citizens out.  The American government would not allow any American to be tried in Guantanamo Bay.  The Government now says it wants a speedy trial for David Hicks.  At any point it could have demanded that David Hicks be tried in the normal justice system in the United States, either in a civilian court or in a military court martial.  That would have overcome all delays.  It never did so.  When complaints were made about the treatment of Hicks, the Government relied on responses from the United States administration to deny claims of mistreatment, of conditions which many would regard as torture.

Instead of seeking fair treatment for Hicks, the government supported the establishment of Military Tribunals.  The first attempt to do so was outlawed by the US Supreme Court, much to the credit of that court.  President Bush then went to Congress and sought to have Congress pass a law which would replace his Executive Decree.  Many of the conditions of the new Tribunals mirror the conditions contained in the original Presidential Decree.  It will be difficult to believe that such tribunals provide justice.

It would have been possible for the United States Congress to insist on “full and fair procedures designed to arrive at the truth, to protect the innocent, and to convict the guilty.”  But Congress did not do that.  “In many instances” the changes “institutionalize violations of fair trial rules…”

An analysis of the rules of the military commissions reveals the following flaws:

  1. While those rules purport to prohibit evidence obtained through torture, other rules make it likely that convictions may be achieved on such tainted evidence.  Coercive interrogations are permitted.  It is up to the President to define that which is coercion and that which goes too far and becomes torture.
  2. The Israeli Supreme Court outlawed any step towards torture in 1999.   It is clear the United States is prepared to take several steps in that direction and evidence obtained through coercion, which in many cases will in fact be torture, on normally accepted definitions, will be allowed.  The military judge only has to find such evidence reliable.
  3. Hearsay evidence is to be permitted, second or third hand.
  4. The Defence is not able to test that evidence, it will not able to confront the source or challenge its accuracy.
  5. The Prosecution can deny access to so-called classified evidence, to deny access not only to the Defendant but to the Defendant’s Counsel.
  6. Methods used in obtaining that evidence will also be hidden.

When we go further into it, we find, an analysis of the legislation reveals, that alternative “interrogation techniques” employed on a number of CIA detainees held in Guantanamo Bay are indeed classified.  Under such rules and with such a history, the only fair conclusion is that evidence induced from torture will be allowed.

We are indeed told that interrogation techniques include water-boarding, extreme sleep deprivation and hypothermia.  Evidence obtained through coercion, including cruel, inhuman and degrading treatment is explicitly permitted.

There are many other aspects that will mitigate against any possibility of a fair trial.  The rules definition of “unlawful enemy combatant” and who therefore is subject to trial, is broad enough to include civilians with no connection to armed conflict.

Can anyone really believe overall such rules can result in a fair trial?  Does the Prime Minister or the Attorney General believe such rules can provide a fair trial?  If they do, do they believe such rules should also be transferred to the Australian justice system, or are they saying that Hicks is guilty and the rules are good enough for him, and if they convict him, well, that is his fault.  That is how tyrants through the ages would have justified many of their acts of tyranny.

In his defence of his government’s behaviour, the United States Ambassador is reported in the Age yesterday as saying that Hicks is ideologically ruthless, fanatic, he will kill Australians and Americans without blinking an eye.  The Ambassador went on to argue that, because of the War on Terror, it was fair enough to keep Hicks in jail while that war continues.  That is keeping him in jail for ever because, as defined by President Bush, the War on Terror will never end.  It is also making a total mockery of the trial process.

The Ambassador also said that challenges to the Military commission process protected the “pedigree” of America’s democratic processes in getting the law right.  Today that surely means in American terms establishing a Commission that will provide a guilty verdict.  How can it be otherwise?  From the President to the Ambassador, Americans have said that Hicks is guilty, get the law right, make sure he is convicted.  That is not a fair trial, that is not justice.  Lord Goldsmith only the other day again emphasized the barbarity of the Guantanamo Bay Military Commission process.  The longer it goes on, the more we learn, the more we must be totally bewildered, dismayed at the way in which the Australian Government has responded to these circumstances.

Stephen Charles, former QC and Judge of the Victorian Court of Appeal, concluded in recent comments that the American and Australian governments want (need) a guilty verdict.  After five years of quite inhumane and degrading treatment, a verdict of innocence would be extraordinarily embarrassing to both governments, perhaps enough to defeat a government as more and more Australians really come to understand the nature of government’s betrayal of the rights of an Australian citizen.

On this analysis the United States cannot and clearly will not allow a fair trial.  The Prime Minister has said that he would not pass a law in Australia to create a retrospective criminal offence, but it is good enough for America to do it for David Hicks.  If we are such a close ally of the Bush administration, why should Australia not ask the United States to apply these same critical tests of fairness to its treatment of an Australian citizen as it does for its own?  If David Hicks is convicted of that offence, he will be punished for an act that was not illegal when he was alleged to have executed that act.

Again, we find as one would expect, that there is no adequate appeal against the decision of the military commission.  An appeal only applies to matters of law as it relates to the military commission, not to a matter of fact.  That prejudices a substantial trial right of the Defendant which would prevent an appeal based on the Defendant’s factual innocence.

If there is any doubt about whether the rules I have mentioned are fair or not, ask whether you would want a son, a daughter, a spouse, any relative or friend, to be tried under a tribunal operating under such rules?

As the bottom line, if the United States had wanted a fair trial, it would have used its procedures and its normal court system or under the rules of military court martials.  We could all have confidence in either.  The United States has in fact spent enormous energy to try and guarantee the kind of verdict it wants.

We must have grave sympathy and provide whatever support we can for Terry Hicks, who has behaved impeccably in the most extreme, provocative and unfair circumstances.

The Government has avowedly pursued policies which deny access to the law to increasingly large groups of people.  Such people include indigenous Australians, asylum seekers and refugees, people in Immigration Department detention centres.

A civilised society is to be judged by its adherence to the rule of law, to due process and the ease with which all people would have access to the law.  It is judged by the way it treats minority groups.  Australia would be judged badly.  Today for a variety of reasons, but not least because the government has sought to set Muslims aside, discrimination and defamation against Muslims has been rising dramatically.  Too many have taken the easy path and accepted the government’s contentions that Muslims aren’t like us and therefore it doesn’t matter if discrimination occurs and if access to the law does not apply.  We have forgotten that discrimination, once it starts, spreads.  This situation is already leading to increased discrimination against Jews.  It will spread from minority to minority.

We would do well to heed the words of the Israeli professor Naomi Chazan in the recent Gandel Oration in Melbourne:  “there is one standard and one standard for all, and the challenge that is posed by terrorism is how to defend the rights of those that we don’t agree with … How can we defend the rights, the basic human and civil rights, of those whose ideas we simply abhor?  It is the system, the process, the courts, it is the measurement of justice that determines the nature of our civilisation.”

And so this conference and its broad-ranging subject matter are enormously important.  We are not talking about something esoteric that has no implication for people’s lives.  We are really talking about establishing a society in which no government will ever again allow such a basic betrayal.  However much the Blair government should be condemned for its participation in the Iraq war and for its encouragement of a venture doomed to failure from the very outset, it did not betray the basic legal rights of its own citizens.  The Australian government has.

Every person participating in this conference should ask how he or she would feel if the son or daughter or relative or friend of their own had been treated as David Hicks has been treated.  We must banish the idea that the laws and attitudes depicted in the Hicks case are only relevant to the other, to people not like us.  They are indeed relevant, they are important and those who allowed this to happen do not deserve public support.