A speech by Julian Burnside that deserves to be read and remembered

- AFR page 51, 19 March 2004

Buried away on page 51 of the Friday "Australian Financial Review", in the Legal Affairs section, was this report of a courageous landmark speech by Julian Burnside at Newcastle University. I hope a lot of Australian lawyers will read it and talk to their political friends (in all parties) about it – I only came across it by the sheerest accident, this not being a part of the paper I would normally see. It deserves to be read and discussed.

In the context of the currently fashionable debate over whether terrorists might hate us more because of what we do (policies), or because of what we are ("values"), it is worth thinking about what Burnside’s brave speech tells we Australians and the outside world (because it will inevitably travel widely on the internet) about both our policies and our values.

It is truly in Australians’ self-interest – and not just a matter of morality and decency, as Burnside rightly insists – to end these gross bureaucratic cruelties inflicted on innocent people by an Australian government – our government - now. For these chickens too may come home to roost, and we may pay for such cruelties.

Burnside has his own website www.julianburnside.com

I trust that the full text of his speech will go up and be internet- accessible there.

TK 20.3.04

Blast over ‘Nazi’ style detention - by James Eyers, AFR 19 March 2004, p.51

… "There comes a time when to uphold the law is to betray justice" …

One of Australia’s most eminent QCs, Julian Burnside, has called on lawyers to lambast the government’s treatment of asylum-seekers.

"If we are to pursue justice, we must be prepared to question the laws we help administer", Mr Burnside, counsel for the Tampa asylum-seekers, said in a speech at Newcastle University last night.

"I learned, through the Tampa case, something I should have recognised earlier; that asylum-seekers are confronted by unjust laws being implemented by a government which has lost touch with ordinary standards of decency".

The comments followed his visit to the Baxter detention centre in South Australia earlier this month.

He described the scenes inside to his audience last night: "asylum-seekers walk around as if still alive; they talk as if they still have a hold on rational thinking … but they are not wholly there: they are hollowed out, dried, lifeless things, washed up and stranded beyond the high-water mark. Their minds are gone: shredded, destroyed by hopelessness and despair".

"The management unit at Baxter is solitary confinement bordering on total sensory deprivation."

International bodies also have criticised Australia’s treatment of asylum-seekers. The United Nations Working Group on Arbitrary Detention has described Australia’s detention centres as "worse than prisons" while the UN Human Rights Commission said conditions were "an offence to human dignity".

Mr Burnside said the "most essential function" of the courts was to "stand as an impartial guardian of the rights of the weak against the wishes of the powerful".

He asked lawyers to consider the constitutional foundations for the executive government inflicting punishment on a person, traditionally the sole role of the courts under chapter III of the constitution.

"The High Court has acknowledged that there are circumstances where detention is necessary for the discharge of an executive function … [but] this holds good only as long as the detention goes no further than can reasonably be seen as necessary to the executive purpose which supports it."

The federal government was criticised by the High Court last year for trying to appeal in a case where an asylum-seeker, Akram al Masri, had already been deported. After his deportation to Gaza, the full Federal Court upheld an earlier decision that his detention in Australia had been unlawful because, at the time, it was believed to be indefinite.

Mr Burnside said the government’s case – that holding persons in such conditions for an indefinite period was lawful – was an argument "worthy of the legal positivists of the Nazi regime". "There comes a time when to uphold the law is to betray justice", Mr Burnside said.

(with grateful acknowledgement to the "Australian Financial Review", where this report by James Eyers first appeared )