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Protecting human rights in the next Federal Parliament - Frank Brennan

Higgins Forum, Malvern Town Hall

11 October 2007

I am delighted to accept this invitation to be the opening speaker at your pre-election forum in the seat of Higgins on the eve of the 2007 election campaign. The organisers have given me very clear riding instructions. Being an obedient Jesuit, I intend to follow them. They told me:

The night will address matters crucial to the health of our society and nation, yet be non-party-political. We are not to tell the people how to vote, nor impute bad faith to candidates, nor allow ad hominem attacks of any other kind. We have promised not to snipe at any candidate who's missing - though we may well describe and pass judgement on policies they've countenanced, actions they've taken or statements they've made.

I feel well qualified to be your introductory speaker if only because I have an unfailing capacity to disturb people on both sides of the political fence. During the 1998 Wik debate Paul Keating called me a meddling priest and John Howard was quick to point out that I did not speak for the Catholic Church. I was greatly complimented last year when Kevin Rudd said of me, 'Some have called him a “meddling priest”. I have always seen him, less prosaically, as an ethical burr in the nation’s saddle.' Tonight may be Peter Costello’s chance to express a view about me.

When launching our bishops’ social justice statement recently on the topic Who is my neighbour: Australia’s role as a global citizen, I compared the Treasurer’s observation on foreign aid, development assistance and trade justice when he said, “Economic growth is the real poverty buster” with the bishops’ rider:

True, but economic growth must go hand in hand with eradicating poverty and ensuring trade justice…Government needs to cooperate with the non-government sector, contributing to true development, which extends beyond the aim of economic growth.

I added the observation that in our Australian context, Peter Costello needs Tim Costello if we are to do our part in making poverty history, achieving the UN Millennium goals.

I wish there were more meetings like this in Australia. The mass media are no substitute for our ability to come face to face with our prospective political leaders.

One of the great moral philosophers of our time is Alisdair Macintyre who published his very influential book After Virtue in 1981. He wrote:

What matters at this stage is the construction of local forms of community within which civility and the intellectual and moral life can be sustained through the new dark ages which are already upon us…This time however the barbarians are not waiting beyond the frontiers; they have already been governing us for quite some time.

I hasten to add that he is not Australian and he wrote these words long before Paul Keating or John Howard was Prime Minister. In quoting him I am not making a party political point but rather a point about our cultural context.

Macintyre has recently published a volume of essays on Ethics and Politics. In his essay, “Social Structures and their threats to moral agency”, he considers the case of J, a person like all of us nowadays. He lived an increasingly compartmentalized life. He was a father, a husband, a member of a sports club, a worker in the railways etc. Over the years, he worked hard and was promoted in the railways. “The key moral concepts that education had inculcated in to J were concepts of duty and responsibility”.

Macintyre says, “A philosopher who comes across the likes of J will understand his attitudes as cultural parodies, in part of Plato (conceiving of justice as requiring that ‘each do her or his own work and not meddle with many things’) and in part of Kant (doing one’s duty and not for the sake of any further end), authors who had influenced J’s schoolteachers.”

Early in his career J was curious about what “his” trains were carrying – wheat or pig iron, tourists or commuters. He was told by superiors not to take any notice of such things. He was not to be distracted. He should not be a busybody. He should stick to his last, and just to do his job. Over the years he was promoted and became professionally disinterested and uninterested in what or who his trains were carrying and why. Ultimately his trains were carrying munitions and Jews to extermination camps. When confronted with this dreadful reality after the war, he pleaded: “I did not know. It was not for someone in my position to know. I did my duty. I did not fail in my responsibilities. You cannot charge me with moral failure.”

As moral agents, we are responsible for our intentional acts, for incidental aspects of those actions of which we should be aware, and for at least some of the reasonably predictable effects of those actions.

In our different roles, we acknowledge the authority of evaluative and normative standards embodied in our particular social and cultural order. But as moral agents, espousing the virtues of integrity and constancy across roles and in each of our roles, we also acknowledge standards independent of those embodied in our social and cultural order – standards we can use to critique our social and cultural order.

Macintyre posits an “indispensable moral maxim” for us in the modern world: “Ask about your social and cultural order what it needs you and others not to know”. We must presume J was sincere. Macintyre is adamant that even if J did not know, he and others like him “remained guilty and .. their guilt was not merely individual guilt, but, the guilt of a whole social and cultural order”.

We might debate the extent of J’s guilt, but we cannot seriously question his responsibility – individual and collective. Looking back, J and his associates should be heard asking, “How did we let that happen? How did we contribute to that situation? How could we have avoided that situation, or at least helped to put a stop to it?”

In our increasingly globalised world, we need to be educated into acknowledging the interdependence of our situation with the situation of others who do not enjoy our peace, security and abundance. We need to take a stand in solidarity, overcoming the social isolation imposed by our privileged place of peace, security and abundance. We need to take human rights seriously.

We Australians are fortunate to live in one of the world’s freest, most secure, and well endowed countries. We prize the rule of law and we enjoy the benefits of a robust democracy. On the cusp of a tightly fought election, community groups are able to organise and call for a reckoning from their candidates. Security and national economic growth are always the big ticket items for the electorate choosing between the major political parties. Some voters see little to separate the major parties on those items and thus look to other issues or reasons to determine their vote. Some other voters prefer to give a higher priority to other questions which do not enjoy the same populist support as security and the economy.

Tonight you will be inviting your candidates to answer questions about “what they will personally do to protect human rights if elected at the 2007 poll”. The hot button issues are bills of rights, the death penalty, the Pacific solution and the temporary protection visa, the criteria for choosing refugees, collective bargaining, the treatment of suspected terrorists, the curtailment of civil liberties to counter terrorist threats, and the federal intervention in the Northern Territory including the legislative interference with land rights, welfare rights, and CDEP. On some of these issues, it is nuance rather than light separating the major parties. On others, real differences may be emerging.

Without a national bill of rights, we Australians have often had to rely upon the Senate to keep in check any excesses of Executive power in legislation proposed by the government of the day. Minor parties have added texture to our democratic processes. In the present parliament, the government has controlled the Senate with the result that our main check on Executive power has been idle. There has been little point in putting arguments to Senate committees when the legislative result is a foregone conclusion. Without deliberative debate in the Senate, citizens are left more in doubt whether government has struck the appropriate balance between individual liberty and the national interest. Ironically, this may have harmed government as much as its opponents. We are left more dependent on individual politicians taking a stand in the party room.

Even when the government does not control the Senate, there are times when the major parties agree on policies which over time are seen to work violence to basic human rights. In 2002, while community groups agitated against the long term migration detention instituted by Labor and continued by the Coalition, it was commonplace for the Minister for Immigration to affirm: “Detention is not arbitrary. It is humane and is not designed to be punitive.” Unvisaed asylum seekers including children were being held in hell holes like Woomera. Health professionals were reporting that “prolonged detention of asylum seekers appears to cause serious psychological harm.” It took another three years for the Migration Amendment (Detention Arrangements) Bill to be passed. The government backbencher Bruce Baird echoed much of the community outrage at mandatory detention of children when he told Parliament: “I am sure that all members from both sides of this chamber would absolutely endorse this as fundamental. Let us never again see children in detention in this country. They should not be behind barbed wire or razor wire. It is an indictment that we have let it happen. Both sides of the House have been involved in that but we are changing this process through the bill. I really stress the importance of these changes.”

There are times when we Australians get the balance between national interest and individual liberty wrong, especially when the individual is a member of a powerless minority. One way of improving the balance is including the judiciary in the calculus, as has now happened in the United Kingdom and New Zealand. Australia is now isolated without any national bill of rights framework. The ACT passed its Human Rights Act in 2004. The Victorian Parliament has now passed its Charter of Human Rights and Responsibilities Act 2006 which takes full effect next year.

Whether or not we have a national bill of rights, we need to nurture a more deeply rooted culture of respect for human rights among governors and the governed. It will be increasingly difficult for the jurisprudentially and geographically isolated Australia to strike the right balance, maintaining respect for the freedom and dignity of the individual, a commitment to the rule of law, and a spirit of egalitarianism that embraces tolerance, fair play and compassion for those in need. Like the British, we may find that a statutory bill of rights is a needed additional institutional pillar on which can rest a modern democracy true to our traditional values.

Many years ago, I attended a meeting of Aborigines living on a riverbank in Northern Australia. The Aborigines had lived on a government reservation which was run by a church and which had since closed. Some of the people moved to government housing in a nearby town but they did not like it much and the neighbours liked it even less. Eventually they became fringe dwellers on land they regarded as their traditional country. They were seeking land title and money for houses from government. At the end of the meeting, the convenor pointed across the river and said, "See that house: that is Mr X's weekender. They don't come very often but when they do they come by helicopter. See that helipad on the roof. It cost $3/4 million." That was almost twice the amount they were seeking for basic permanent housing.

I have often told this story in schools. Especially in the more wealthy schools, there are many questions: Why don't the Aborigines build their own houses if they want them? What are they complaining about? If the white man didn't come, they wouldn't even have a water supply. If it weren't for Mr. X paying his taxes, there would be no money to pay these people welfare. After many years, I gave up trying to answer these questions or to refute these comments. In response, I ask only one question: Which side of the river are you standing on as you ask your questions?

There is never any doubt about which side of the river people are standing on. Can you see that there are just as many questions that can be asked from the other side of the river? They are just as unanswerable. Tonight is an opportunity for all of us to choose which side of the river to stand on as we ask our questions about human rights.

Two nights ago, I had the opportunity to stand on the other side of the river of the death penalty debate, sharing a platform with Lee and Chris Rush, the all time Aussie parents of Scott Rush on death row in Bali. I had cause to wonder how the remarks of our prime ministerial contenders were helping Scott hang on to life given that he does not deserve to die at the hands of the Indonesian State.

As you ask your questions, or when you go home this evening reflecting on the answers and the dynamic of the night’s proceedings, have a care and inquire further “about your social and cultural order what it needs you and others not to know”. And cherish this opportunity for democratic engagement.




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