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A Human Rights Day tribute to the Northern Territory's Tony Fitzgerald

Supreme Court of the Northern Territory, Darwin, 10 December 2015

Yours Honours, Ladies and Gentlemen: It is a great honour to be here addressing you in the Supreme Court of the Northern Territory, a court of which my father was a part time member some decades ago. I join with you in acknowledging the Larrakeah people, the traditional owners of the land on which we meet. Today we mark the 67th anniversary of the UN Declaration of Human Rights. I am delighted to have the opportunity to speak here in Darwin on Human Rights Day honouring the memory of the late Tony Fitzgerald. I acknowledge the presence of his children Gus and Nina who are the embodiment of his spirit offering us all great hope for the future. I also acknowledge his sister Shane who continues to ensure that ABC broadcasts are intelligible to the world. This evening we pay tribute to those who will receive 'The Fitzgeralds', the Northern Territory Human Rights Awards. I acknowledge those members of the steering committee for the awards, comprising Sally Sievers and her staff from the Anti Discrimination Commission (ADC), the Darwin Community Legal Service (DCLS), the Criminal Lawyers Association of the Northern Territory (CLANT), the Northern Territory AIDS and Hepatitis Council (NTAHC), the Melaleuca Refugee Centre (Melaleuca), and the Rotary Club of Darwin South. We gather particularly to honour the recipients of the awards and to give thanks for their community service.

I have been privileged to know two legal reformers by the name of Tony Fitzgerald. The first from my home state of Queensland came to national prominence when he conducted a royal commission into police corruption in Queensland. The second is the man we honour this evening. I first met this Tony on my regular visits here to Darwin when he was working at the North Australian Aboriginal Legal Aid Service and then when he set up the mediation services under the auspices of Anglicare. In later years I knew him when he was your Anti-Discrimination Commissioner. He was a quiet, considered, gentle, strong and principled man. Often I would be in company with my friend Colin McDonald QC who would be speaking with some excitement and undoubtedly at some length about his latest brief which would be the defining case in some aspect of human rights. Tony would listen attentively, smile knowingly, frown intently, and tentatively suggest alternative approaches or perspectives on the law. They say that rugby is the game they play in heaven. Tony was an accomplished rugby player and an unaccomplished saxophone player before he came to the Territory. He played rugby for Melbourne University and for Victoria. A breakaway, he played alongside my fellow Jesuit Peter L'Estrange and his old rugger mates Roger Allen and Hayden Raysmith who are with us this evening. Tony used enjoy reminiscences about his early adult life on the rugby field and on the Melbourne University campus. I suspect he was one of those rugby gentlemen who played in the Monty Python mode: 'firm but fair'. He was one of many capable young lawyers from the south who felt a calling to the Territory knowing that justice according to law would be an achieved national goal only once there was the assurance of non-discrimination and equality of opportunity for Aborigines here in the Territory. Justice for all would be achieved only if capable young professionals like Tony were prepared to move to the frontiers where the resources were scare and the sympathies sometimes lacking. There was nothing supercilious or patronising to Tony. He was an adornment to the Northern Territory legal profession and a Territorian who took pride in what was achieved here in his all too short professional lifetime.

On Human Rights Day, it is only fitting that I honour Tony by offering some reflections on the architecture for human rights in Australia, on the contemporary human rights controversies, and on the way forward for better protection of the human rights of Aborigines and asylum seekers — two marginalised groups who had a special claim on Tony's sympathies.

Australia without a Human Rights Act

Having chaired the National Human Rights Consultation in 2009, I am convinced that Australia's exceptionalism in failing to legislate comprehensively for the protection of human rights will put increasing pressure on the relationship between the three branches of government. Responding to that pressure, our courts are now isolated from courts elsewhere, including those in the United Kingdom which are constrained and directed by Strasbourg and their own Human Rights Act. In the UK, the Tories long concerned about the influence of Strasbourg are no longer suggesting the repeal of their Human Rights Act, though they still talk about a new Bill of Rights which will include the principles of the European Convention on Human Rights. Our courts are less able to profit from the cross-fertilisation of ideas from other equivalent jurisdictions such as the UK, New Zealand, Canada and the USA.

Whether or not we have a bill of rights, much of our human rights jurisprudence remains partial, failing to extend rights equally to all. Once we investigate much of the contemporary discussion about human rights, we find that often the intended recipients of rights do not include all human beings but only those with certain capacities or those who share sufficient common attributes with the decision makers. It is always at the edges that there is real work for human rights discourse to do. For some time, Tony worked for Anglicare here in the Northern Territory. So I don't think he would mind my quoting Rowan Williams. Speaking at the London School of Economics on “Religious Faith and Human Rights”, Rowan Williams when the Archbishop of Canterbury boldly and correctly asserted:

The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.

No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:

As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.

Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly, it may be very difficult to maintain a human rights commitment to the weakest and most vulnerable in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally. Think just of the unborn child, the isolated aged person, the asylum seeker banished to Nauru or Manus Island, or the young offender caught in the web of mandatory sentencing laws. In the name of utility, society might not feel so impeded, limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection.

When marking the 60th anniversary of the UN Declaration of Human Rights seven years ago, the late Irish poet Seamus Heaney said:

Since it was framed, the Declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system. The articulation of its tenets has made them into world currency of a negotiable sort. Even if its Articles are ignored or flouted—in many cases by governments who have signed up to them—it provides a worldwide amplification system for the 'still, small voice'.

The concept of human rights has real work to do whenever those with power justify their solutions to social ills or political conflicts only on the basis of majority support or by claiming the solutions will lead to an improved situation for the mainstream majority. Even if a particular solution is popular or maximises gains for the greatest number of people, it might still be wrong and objectionable. There is a need to have regard to the wellbeing of all members of the community.

The late Professor Louis Henkin, arguably the US's most outstanding international human rights lawyer of the twentieth century, neatly summarised the varying perspectives on the origin and basis of human rights, espousing the centrality of the idea in any society committed to freedom, justice and peace for all:

Although there is no agreement between the secular and the theological, or between traditional and modern perspectives on human beings and on the universe, there is now a working consensus that every man and woman, between birth and death, counts, and has a claim to an irreducible core of integrity and dignity. In that consensus, in the world we have and are shaping, the idea of human rights is an essential idea.

'Human rights' is the contemporary language for embracing, and the modern means of achieving, respect and dignity for all.

At his swearing in to the High Court two years ago, Justice Patrick Keane took some comfort that the Australian judiciary were not a social elite as in some other countries, being drawn from the egalitarian democracy shaped by those Australians of the Depression and War eras who provided selflessly and generously for the education of their children. He invoked Martin Luther King who said, 'The arc of the moral universe is long, but it bends toward justice.' With a touch of nationalistic pride, Keane opined that it bends more sharply in that direction here in this part of the southern hemisphere because of the egalitarianism of our forebears.

The same sex marriage debate

Given that Tony Fitzgerald was your Anti-Discrimination Commissioner and given that there is some controversy at the moment about the role of such a commissioner in the same sex marriage debate, let me offer a few observations. Chris Puplick a former Senator and former president of the NSW Anti-Discrimination Board is one of a rising chorus expressing strong objections to the Australian Catholic bishops daring to evangelise and speak publicly about their views on same sex marriage. Writing in The Australian on 5 December 2015, Puplick asserts:

When a person or group of people is described in official publications as being seriously depraved, intrinsically disordered, less than whole and messing with kids, they are entitled to take offence, and to the extent they feel they have been vilified and subjected to hate speech they should of course seek to avail themselves of the protection against such calumnies as have been provided for by the various legislatures around Australia. It is simply wrong to say that such proceedings are an attempt to deny the Catholic Church the right to ventilate its views about traditional marriage.

I too would be very upset if my bishops were saying that homosexuals are 'seriously depraved, intrinsically disordered, less than whole and messing with kids'. But they're not. Think only of Pope Francis's remark during the press conference on the plane shortly after he became pope: 'If a person is gay and seeks the Lord and has good will, who am I to judge him?' Gone are the days of rainbow sashes outside cathedrals and threats of communion bans. The fact that Puplick can seriously caricature episcopal utterances in this way shows what a contested and emotive space we are in. All because Tony Abbott convinced his party room that it was a good idea to have a plebiscite on same sex marriage.

Many same sex couples and their supporters claim discrimination because their relationships cannot be recognised as marriage under the Commonwealth Marriage Act. I have long claimed that our federal politicians should have a conscience vote on same sex marriage. The Labor Party muddied the waters at their national conference in July 2015 by cobbling together a compromise motion allowing a conscience vote only until 2019, with members then being bound to support same sex marriage after the election after next.

Given Labor's abandonment of a conscience vote until the matter is finally resolved on the floor of the Parliament, the Coalition found itself more free to make its own political calculations about the utility of a conscience vote on its side of the chamber.

Given developments in countries like Ireland, the UK, Canada, New Zealand and the USA, I have accepted the inevitability that civil marriage in Australia will ultimately be redefined to include committed same sex relationships.

Given the increasing number of children being brought up by same sex couples, it is desirable that the state take away any social stigma against same sex parents. Given the ageing population, the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other. Given the harmful effects of homophobia, the state has an interest in encouraging broad community acceptance of those members who are homosexual. Laws and policies can help in this regard.

It is one thing for Commonwealth law to recognise same sex unions as marriages. It is another thing to require all persons, regardless of their religious beliefs, to treat same sex couples even in the life and activities of a church as if they were married in the eyes of their church.

The religious freedom issues involved in the same sex marriage debate are about more than making space for religious celebrants determining who they will or will not marry. Though the issues would not necessarily be covered by amendments to the Commonwealth Marriage Act, the passage of those amendments will be the trigger for revisiting and redefining these issues.

A plebiscite on this issue is a waste of time and risks turning very nasty, especially now that both the Prime Minister and the Leader of the Opposition support same sex marriage. The plebiscite advocates were opponents of same sex marriage who thought it would give them more airplay back in the days when the prime minister was a strong opponent of same sex marriage. With Malcolm Turnbull and Bill Shorten on the same page, the opponents will get little airplay. While the debate rages, it is only appropriate that religious groups like the Catholic bishops be able to evangelise their position, especially their concern that children in future be assured a known biological mother and a known biological father. To date, the bishops have spoken cautiously and respectfully, with perhaps the occasional lapse into loose language. They know their views are not in fashion. It is ridiculous to have national debate on a plebiscite stifled by assertions that church teaching on marriage is offensive to some individuals, and likely to cause offence to the so-called 'reasonable person'. National debate should not be put on hold while an Anti-Discrimination Commissioner, egged on by her predecessor in another jurisdiction, decides whether it is arguable that a reasonable person might be offended. The Commissioner and her tribunal are not the thought police. Or at least, they shouldn't be. The Commissioner's processes should not be used to shut down national debate about the desirability of profound social change, silencing one side of the plebiscite debate while the other side is free to be as offensive to religious folk as they will, given that there is no state enforcer of religious niceness - and neither am I campaigning for one. Commentators like Mr Puplick should admit that the anti-religious sentiments expressed in the present debate far exceed any traces of homophobic utterance by religious leaders.

Many of those who take offence at remarks by the bishops are those who think churches should butt out of all moral debate in the public square. On this one, we should all let a thousand flowers bloom. When the plebiscite vote is carried in favour of same sex marriage, as I am confident it will be, there will still be a need for our Parliament to legislate complex provisions protecting religious freedom and expanding the freedom to marry. It's only a parliament, not a plebiscite, which can legislate the complex details of equality and the protection of all rights, including the right to religious freedom.

Justice and Constitutional recognition for Aboriginal Australians

Last month, the High Court of Australia upheld the validity of a Northern Territory law which the government described as a form of paperless arrest. The Attorney General described the law as 'a form of catch and release'. The Northern Territory's daily imprisonment rate is 904 people per 100,000, compared to the national average of 194. 85% of prisoners are Aboriginal even though they are only 30% of the population in the Northern Territory. Police were instructed that the new law allowed them more readily to pick up drinkers in public places, issue them with an infringement notice which was to be placed in their personal effects, and then put them in the slammer for four hours or until they sobered up, whichever came later. The High Court by 6-1 upheld the validity of the law while restricting its operation in part. The majority of judges thought that the NT Attorney-General completely failed to understand his own legislation. The Attorney, the Hon Jon Elferink, who had been a policeman who understood how the beat worked, had told Parliament:

This system simply restores a simple idea that when a police officer arrests a person for a street offence, they have taken that person out of commission. They bring them to the watch house, drop them off at the watch house, write out the summary infringement notice — so it is not entirely paperless — which goes into the property bag of the person who is then placed in the cells for the next four hours. In four hours' time, they come out, collect their property, collect their summary infringement notice, and if they wish to contest the allegations in the summary infringement notice, then there are processes for that to occur. Those processes are explained on the back of the summary infringement notice.

This means the police will no longer become arrest averse. It will actually say to the police that if these clowns are playing up, arrest them, take them into custody, get them out of circulation.

But according to the High Court majority, all the Attorney's new law did was to put a cap of four hours on the allowable time for detention, leaving in place all the earlier safeguards and procedures for arrest and detention. That would have been news to the Attorney who thought he had designed a scheme to make the police less arrest averse! He and the Parliament thought they were giving the police greater latitude to effect arrests on the streets without having to worry about paperwork and legal niceties. Now the High Court has told them that all previous legal niceties have been kept in place and if anything, there is a need for some extra paperwork.

According to the High Court the Parliament passed this provision so as to put a time limit on detention which otherwise would not be applicable - 4 hours for a person who is not drunk, and as long as it takes to sober up for someone who is drunk, even though the existing law (Division IV, Police Administration Act (NT)) had long been in existence allowing longer term detention of a drunken person so as to protect them or the public. So arrest rates should not have increased. If anything, they should have declined. And the time spent in detention should now be less, not more.

The one dissenting judge, Justice Gageler, sounding a warning note to all those who espouse the human dignity and human rights of all. He wrote:

This is not an occasion to mince words. The form of executive detention authorised by [this law] is punitive. Because it is punitive, the imposition of the detention involves the exercise of a function which our constitutional tradition treats as pertaining exclusively to the exercise of judicial power.

Justice Gageler thought the law worked an unwarranted interference on the dignity of the courts. He held:

[t]he result of any prosecution which will occur ... will be an adjudication which determines the criminal liability of the person. Whatever the outcome of that adjudication, the person will already have been punished through the executive detention that has occurred. No subsequent action by a court can change that historical fact.

Courts of the Northern Territory are thereby made support players in a scheme the purpose of which is to facilitate punitive executive detention. They are made to stand in the wings during a period when arbitrary executive detention is being played out. They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice.

The scary aspect of this decision is that the other six High Court judges thought the law passed muster because it did not involve police exercising judicial power and it did not interfere with the integrity of the courts. Now these are the country's finest judges. Because we do not have any form of Human Rights Act or any bill of rights, the judges are not able to address the fundamental question: are the rights and dignity of these persons being trampled by such a law? They are restricted to asking a secondary question: if the law works an interference with judicial power. Frankly, who cares? Why can't our judges be required to address the primary question, if the law denies someone's human rights, thereby forfeiting equality for all. If such a law had been proposed in Victoria, there would be a number of human rights hurdles for the Parliament to jump — hurdles placed by the Parliament itself when it enacted the Charter of Human Rights and Responsibilities Act 2006 which has survived and won support from governments of both political persuasions. The Executive would have had to provide Parliament with an explanation as to how the new law complied with human rights. A parliamentary committee would have studied the new law for human rights compliance. The Victorian Supreme Court would be able to determine the compatibility of the new law with the enumerated human rights including:

(1) Every person has the right to liberty and security.

(2) A person must not be subjected to arbitrary arrest or detention.

(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

(5) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must —

(a) make a decision without delay; and

(b) order the release of the person if it finds that the detention is unlawful.

When considering the position of a person being detained for four hours, being issued with an infringement notice and then paying it, Justice Keane one of the majority judges observed during argument: 'So, this is a case where someone simply accepts the notice. So, the Court is not involved at all. On one view of it, the punishment was rightly imposed because it was not contested. [The] four-hour period leading to a decision to issue an infringement notice which is accepted as rightly issued.' Under this law a person can be imprisoned for four hours for a simple offence which does not even carry a prison term. And guess what, that person is usually an Aboriginal. When one Aborigine arrested under this scheme then died in custody, the coroner observed:

Kumanjayi had the right to die as a free man and in the circumstances, he should have done. In my view, unless the paperless arrest laws are struck from the Statute books, more and more disadvantaged Aboriginal people are at risk of dying in custody, and unnecessarily so.

On the other hand, the High Court majority upheld the law because they thought it would have the opposite practical effect to that intended by those who enacted the law. With all respect to the learned Justices of the High Court, I suspect your coroner has more sense of how these laws are applied on the streets of Darwin and in the Alice Springs lock up.

Justice will grow only out of recognition where Aborigines and Torres Strait Islanders have a place at the table of public deliberation whenever the State is contemplating laws or measures which will be applicable only to them or which will have an inordinate impact on them. Those laws and measures always need to have due regard for Indigenous cultures, languages, and heritage, and the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters. Such recognition is now provided in all State Constitutions except Tasmania. A Tasmanian parliamentary committee is presently considering proposals for such recognition. Recently the Western Australia Parliament embraced the proposal for recognition put by Indigenous member for the Kimberley, Josie Farrer who commenced her speech in the Gidja language. Moving the Constitution Amendment (Recognition of Aboriginal People) Bill 2015, she told Parliament:

Despite all our differences, I believe that ... Australian people understand better than anyone the value of mutual recognition, acknowledgement and respect ... This is an opportunity for all Western Australians and all members of Parliament to acknowledge what has happened in the past. However, we also need to stride forward. In my second reading speech, I called on members to grab this opportunity for us to stride into the future, not to shuffle forward with eyes closed to the truths of the past. I stated that this is the chance to come together as a Parliament and as a community in a sincere, mature and heartfelt spirit of reconciliation.

The preamble of the Western Australia Constitution now concludes with this paragraph:

And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia.

Such an acknowledgement and such a commitment provides the recognition which is the prelude to procedural and substantive justice — giving to each their due in the polity, espousing the place of all citizens. It is pleasing that there are now four members of the Australian parliament - Ken Wyatt, Nova Peris, Jacqui Lambie and Jo Lindgren — who proudly claim an Indigenous heritage, representing all their constituents, Aboriginal and non-Aboriginal, in our Parliament. While making no claim to speak for Indigenous Australians, I do claim that I, like all Australians, have a place at the table seeking to articulate the contours and prospects for Indigenous recognition in the Australian Constitution, while also suggesting why it matters to all of us. The lesson of the 1967 referendum is that no change is merely symbolic. Even the most modest constitutional change will contribute to substantive policy change, according procedural and substantive justice to the First Australians and all who claim Indigenous cultures, languages and heritage and their continuing relationship with their traditional lands and waters.

We should at least remove the outdated notions of race in our Constitution and acknowledge the historical facts, the present reality, and the legitimate distinctive aspirations of Indigenous Australians living in the post-colonial Australia. Building on the work of the 2012 expert panel chaired by Patrick Dodson and Mark Leibler, at the very least we need to provide:

We, the people of Australia, recognise that the continent and the islands of Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

We acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

We acknowledge and respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

This acknowledgement has some similarities to the preamble proposed by ATSIC to the Republic Advisory Committee which was chaired by Malcolm Turnbull and of which Lois O'Donoghue was a member in 1993. Mr Turnbull's committee noted, 'During the public meetings held by this Committee it was often urged that the Constitution should include reference to Australian values of independence, belief in parliamentary government and recognition of prior Aboriginal presence.' The committee set out a number of draft preambles as illustrations while noting that 'none of them is necessarily endorsed by the Committee'.

The Commonwealth Parliament's power to make laws should include the power to make laws with respect to the very things we want to acknowledge, and the power should be restricted so that it can be exercised only benignly. Any forthcoming Constitutional Convention could consider an amendment of section 51(26) so that the Commonwealth Parliament will have power to make laws with respect to:

the preservation, protection and enhancement of the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters.

We also need to minimize the prospect that a future Commonwealth Parliament might legislate in a racially discriminatory way against Aborigines. I would suggest an amendment of the Acts Interpretation Act:


In interpreting a provision of an Act, the interpretation that would best achieve consistency with sections 9 and 10 of the Racial Discrimination ACT 1975 is to be preferred to each other interpretation, unless the Act specifies that sections 9 and 10 of the Racial Discrimination ACT 1975 are not to be considered when interpreting a provision of the Act.

We need to ensure that Aborigines and Torres Strait Islanders have a place at the table. The National Congress of Australia's First Peoples or some other national indigenous body should be set up with a statutory charter being the 'go to' body for Parliament to consult and to co-ordinate consultation with affected groups when Parliament is considering legislation specific to Aborigines and Torres Strait Islanders. On Monday the Prime Minister and the Leader of the Opposition announced the establishment of the Referendum Council to lead us in the next step on this journey. Messrs Turnbull and Shorten were surely right when they said:

Constitutional recognition cannot solve every challenge in improving opportunities and outcomes for Indigenous Australians but it will be a significant step forward.

Acknowledging Aboriginal and Torres Strait Islander peoples in our Constitution can be a clear statement that Indigenous people can share in every opportunity this great country has to offer, as well as being proud of who they are as Aboriginal and Torres Strait Islander peoples.

Making a place for asylum seekers

Our treatment of asylum seekers highlights the deficiencies in Australia's providing equal laws and equal rights for all. Early this year, in CPCF v Minister for Immigration and Border Protection, the High Court of Australia could find no grounds for invalidating the Australian government's holding of 157 Tamil asylum seekers on an Australian vessel on the high seas in the Indian Ocean for a month while Australia attempted to negotiate their return to India from whence they had set sail.

All seven High Court judges made it clear that there is next to nothing that can be done in the courts to question the government's approach. It has got to the stage that it is lawful, acceptable to government, and hardly a matter of concern to the Australian community that 157 asylum seekers, including children, can be kept in windowless detention on an Australian vessel for a month on the high seas in the Indian Ocean.

The Australian parliament has been so specific in codifying the law of asylum at the frontier that there is nothing for the judges to do except apply the letter of the law, regardless of the general principles of international law.

Given that both sides of politics are committed to stopping the boats, we need to find a better way than having to maintain the barbaric arrangements on Nauru and Manus Island and allowing government to run undercover turn backs and returns to Indonesia or wherever without adequate safeguards for asylum seekers, even if they no longer be in direct flight from persecution in their home country.

We need to negotiate transparent agreements with Indonesia and India for the safe and dignified return of asylum seekers who are not in direct flight from persecution in Indonesia or India. Until this is done, we will continue to violate the human rights of asylum seekers on the high seas and then in places like Nauru, Manus Island and Cambodia where our government wants to send them.

The report of the expert panel led by Sir Angus Houston in August 2012 stated:

The Panel is of the strong view that there is a range of conditions that need to be fulfilled for the safe and lawful turnback of boats carrying asylum seekers. The Panel does not believe those conditions currently exist, although they could at some stage in the future, in particular if appropriate regional and bilateral arrangements are in place.

I have accepted the decision of the Abbott-and-now-Turnbull Government and the Shorten Opposition to stop the boats provided two conditions are fulfilled: (1) an immediate assessment is made that no person on board is fleeing persecution IN Indonesia; and (2) the boats can be turned back legally and safely. I would prefer that those intercepted were picked up and flown back to Indonesia safely and decently.

Our Parliament should demand that the government make clear how turnbacks are now safe and lawful. The Labor Opposition is saying that it will retain the option to turn back boats only where it is safe to do so. Is Labor satisfied that the boat which disappeared from sight just off Christmas Island two weeks ago was safely turned back? How would they known unless they asked? Before that boatload of asylum seekers turned up again in Indonesia, Greens Senator Hanson Young asked the Attorney-General: 'I would like to ask the minister if he can please explain the sighting of a boat just three days ago, when a refugee boat reportedly made it to within 200 metres of Christmas Island. Could the minister explain why this boat was there, how many people were on it and where it is now?' George Brandis, the Attorney-General, refused to answer, pleading that it was an operational matter. And the circus of Australian democracy and the so called rule of law moved on.

If the boats have stopped, then there ought to be an ethical dividend. Close Nauru and Manus Island. Get back to treating decently those asylum seekers in our midst. Detention only for the purpose of identity, health, and security. Allow people to work and to receive an adequate level of social security. Grant them permanence in their lives.


Tonight we honour those who have contributed to human rights in the Northern Territory this past year following in the great tradition of Tony Fitzgerald. His old rugby mate Peter L'Estrange recalls that in 1994 a number of them regrouped to form a team for the World Masters Games being held in Brisbane. They played three games. One night they went out to a restaurant and Tony observed how different it was from Darwin. Peter says, 'It wasn't, of course, but he had been long in Darwin, enjoyed it, was at home there among the people, and noticed — he thought — how different Brisbane was.' Tony Fitzgerald made a home for human rights and for human rights practitioners here in the Northern Territory. We salute those who have kept the flame of liberty equality burning, and we wish you well in your future endeavours.

Frank Brennan SJ

Topic tags: Frank Brennan, Darwin, Human Rights Day, Tony Fitzgerald



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