"Australia - Beyond 2000"
Address by the Hon Neville Wran AC QC

In the year 2000, this nation welcomed to Sydney the world's fastest, strongest and most skilful, in an atmosphere charged with goodwill, patience and affection. Australia basked in Sydney's reflected glory and the congratulatory words of that well known libertarian, Juan Antonio Samaranche, for once seemed almost sincere.

Now the nation that staged the world's best games ever; the nation that twice voted down conscription; that refused to permit the banning of the Communist Party; that fought for its right to read Lady Chatterley's Lover, has its reputation abroad not altogether shredded, but certainly tattered - whilst at home we are undergoing the calculated erosion of some of our basic civil liberties.

Far from a predicted post-Olympic hangover, we seem to be suffering a post-Olympic state of catatonic withdrawal.

Not even the Centenary of Federation, with the chance it presented for us to reflect upon the promise and performance of our national democracy, succeeded in preventing this. To be honest, the only thing most Australians got out of those celebrations was not any dialogue on, or restatement of, our essential national values, but rather the unhelpful knowledge that Sir Edmund Barton was our first Prime Minister. In the end, the whole exercise was little more than a glorified primary school lesson.

And the opportunities squandered then are as much a part of the story of what we've become in 2002, as the horrors of September 11 or the shame of the Tampa crisis.

The rumblings from Woomera could be heard long before the Tampa ever entered our national waters.

And the meanness of spirit and vision, the cynicism, the willingness to exploit our fears, all now the trademarks of government without principle, were visible, not to mention successful, long before the attacks on the World Trade Centre.

The sublime bewilderment that greeted the Centenary of our nation's birth, that failure to render clear in our own minds the meaning of Australia's nationhood -has long been a part of the national character. Paul Keating tried to shake us out of it, but time and the ballot box prevented him from completing the task.

Indeed, it seems that while there are many nations throughout the world that claim to be liberal democratic in theory and fail to be in practice, Australia might well be the only nation on earth that is liberal democratic in practice, but not theory.

By this I mean that we don't engage a great deal in discussion of what it means to be liberal democratic, as we should have done in celebrating the hundred years since Federation. As a nation we understand the impact of rights upon the practical realities of our day-to-day lives, but not in their universality as expressions of deeper values.

The present debate about asylum seekers is a case in point. The more intelligent advocates of the hardline position i.e. "keep them out at all costs" - and believe me such people do exist in considerable numbers - try to frame this issue in terms of rights versus social responsibility. For them, there is a fundamental conflict between a rights agenda, specifically one which emphasises the rights of asylum seekers, and a broader social responsibility to respect the law.

Well, as a child of ordinary Australians, I have no problem with that last proposition. But it is the distortion of that proposition through the lens of a supposed tension between advocating the rights of asylum seekers and respect for the law, that gives me cause for concern.

To say firstly that ordinary Australians in the course of their lives respect the law, and secondly that this respect is in conflict with the rights of asylum seekers, is to imply that asylum seekers, by their very existence, are guilty of breaking those laws which ordinary Australians respect. But this assumes that the day-to-day laws that ordinary Australians encounter are the only laws that govern the circumstances of the asylum seeker. Nothing could be further from the truth.

Article 14 of the Universal Declaration of Human Rights, which states that everyone "has the right to seek and to enjoy in other countries asylum from persecution", is a source of law. It may not have been formed in the blast furnace of parliamentary invective; and it may not have the practical applications you'd find in those pearls of wisdom that reside in our statute books, but this remoteness from the experience of ordinary Australians does not invalidate it.

Put simply: just because it doesn't read like a traffic regulation doesn't mean it's not law. But if the arguments of those hardliners are examples to go by, it is precisely because Article 14 doesn't read like a traffic regulation that, in the eyes of many Australians, asylum seekers are seen as illegal.

It is this same logic that perpetuates the view that asylum seekers are queue-jumpers. Onto the experience of asylum seekers, many Australians have projected their own experience of the law, an experience which emphases order and form, the principle that you wait your turn and apply in the manner prescribed.

But one can't just export this principle to Iraq and Afghanistan. The fact is, we don't even have a diplomatic presence in those countries and very few countries between the Middle East and Australia are signatories to the 1951 Refugee Convention. The result: asylum seekers are forced to travel to the ends of the earth in order to fulfil that all-too-human need to protect their families or to escape persecution or death. There's just not enough competition in the market for us to say that these people engage in country-shopping.

So once you start thinking about rights, responsibilities and the law in a framework that extends beyond your own daily dose of reality, you realise that asylum seekers aren't illegal at all. They're not queue-jumpers, quite simply because there isn't any queue to jump. Far from there being a conflict between the rights of asylum seekers and social responsibility, if anything we actually have a social responsibility to preserve the rights of asylum seekers. Apart from the rights and obligations which flow from the Universal Declaration of Human Rights - Australia is also party to the Convention relating to the Status of Refugees where those rights and obligations are clearly spelled out.

And the Howard Government knows this. Let's not forget: the primary justification given for refusing the MV Tampa access to port wasn't the enforcement of our laws, but the protection of our borders.

John Howard was relying on the argument that asylum seekers were a threat to national security and an affront to national values, not on the argument that they were illegal, because he knew that the only thing these asylum seekers were ever guilty of was desperation. And while desperation without remedy may breed crime, desperation in and of itself is no crime.

That's why we heard so much about queue-jumping. That's why we heard about children overboard. That's why we heard so much about people smugglers and, by association, asylum seekers were demonised as criminals as well. That's why we heard about children's lips being sewn together at Woomera. If you can't outlaw them, vilify them - demonise them.

And it seems that tabloid journalists aren't alone anymore in practising the dictum that you never let the truth get in the way of a good story. History will not forget the name of Peter Reith, nor will it forgive his contempt for the Australian people.

The very idea that boats bringing asylum seekers pose a clear and present danger to the security of the nation is only just shy of ludicrous. Of the 13,000 asylum seekers who entered Australia in 2000, only one was held to be a security risk due to terrorist links, and he came by plane.

In the run up to the Federal election there was even a suggestion from Canberra that terrorists were likely to be amongst the asylum seekers and that was another reason for keeping them out. What self-respecting terrorist would sail the high seas to get to Australia on a boat that was leaking and likely to sink? Much more likely that a terrorist would travel first class by regular airline, as indeed those terrorists responsible for the September 11 catastrophe did.

And yet it's a lot harder for Ruddock and Co. to justify the razor-wire and the desert heat that imprison asylum seekers, when the facts are out in the open and, may I add, when the election is over. Facts such as the financial cost of mandatory detention.

The cost of the Pacific Solution has been put at $500 million so far! Compare this with arrangements in other countries. In the United Kingdom asylum seekers can apply for the right to work just six months after their arrival. In the Netherlands they're placed in reception centres for three months before being moved into hostels and boarding houses, and are even allowed to work for 12 weeks a year. In Belgium they're given the option of finding their own accommodation, and let's not forget: The European Union had to cope with the applications of just under 400,000 asylum seekers in 2000.

So how do our 4174 asylum seekers in 2000 even begin to compare? How does one reconcile all that with the fact that in terms of refugees accepted on a per capita basis, Australia is ranked thirty-eighth, behind such models of prosperity and humanitarian best practice as Kazakhstan, Guinea, Djibouti and Syria? Or the fact that of the 17,000 asylum seekers in Sweden, which receives just as many asylum seekers as Australia, 10,000 reside outside detention centres?

The answer is: one can't. One cannot compare. One cannot reconcile. One cannot justify.

Reason it seems, and not truth, is the first casualty of war. And the great tragedy in all of this is that reason is what allows us to comprehend beyond the boundaries of our own lives and to see those things - those ideals, those values, those universal truths - that move all lives.

Now, whilst Australia has sometimes led the way in important social and electoral forms like universal suffrage, workers' compensation, child welfare, equal opportunity laws - quite often the Australian public has not initiated or participated in any campaign to achieve those reforms, but rather has been dragged kicking and screaming to accept the reform after it has been enacted in legislation, moved and masterminded by politicians of whom we think so little-roughly on the same level as used car salesmen, journalists and lawyers.

Whatever the shock, indeed outrage in some quarters, at the way asylum seekers were mistreated, the cold hard fact is that at the height of the Federal election campaign 73 per cent of the Australian public supported the Federal Government's treatment of asylum seekers. I might add that I have seen as an objective survey taken 3 to 4 weeks ago - and despite the duplicity, despite the farrago of fact and fiction in which the whole sorry affair was immersed, according to that recent survey public opinion was still running at about 70 per cent against accepting the asylum seekers.

Instead we confined them behind razor wire in some of the most inhospitable locations on the globe or bribed small Pacific Nations to take these unfortunate wretches on to their territory. After that, as far as the Australian Government was concerned, it was a case of 'out of sight, out of mind'.

One day Australians will regret the stand that was taken on the Tampa and the way, with the apparent approval of the majority of the Australian people, the Howard Government was allowed to treat the persecuted as the persecutors - the refugee as the wrongdoer. We allowed compassion and concern for the rights of others, for which Australia prides itself, to evaporate in the isolation of Nauru and the heat of the desert. At the same time, Australia's reputation at the United Nations, the office of Mary Robinson in the Human Rights Commission, Amnesty International, Medicins sans Frontieres, and so on, was seriously damaged or at least diminished.

What was and is lacking is any national policy on how our country should treat refugees/asylum seekers. A number of ad hoc decisions were taken and the Border Protection legislation was introduced with barely any consultation with the Members of the Federal Parliament, let alone the general public. Emotion and prejudice became substitutes for argument and reason and Australia was made to appear the heartless bully boy of the region.

The Australian people, along with the rest of the world, still had in their minds the horrific images of September 11 and its aftermath and, in consequence, anyone who wore a turban and sported a beard was regarded at least with suspicion, and at most with disdain and enmity. But, as I remarked earlier that was not a surprising reaction.

The tragedy is that long before the MV Tampa exploded on the scene, boat people like those who made up its human cargo had sought protection in Australia, and however slowly and however clumsily their claims were processed, the numbers of asylum seekers, if anything, were increasing. Yet no groundwork had been laid; no debate or discussion had been conducted in Australia to provide us, ordinary Australians, with an understanding of Australia's international and humanitarian obligations.

Indeed, in the light of the years and events leading to the Federal Election in November 2001, there had been no effort to have the public conscience come to grips with issues involved in the world's refugee crisis and so, under the manipulation and guidance of our own Federal Government, the anti-refugee sentiment amongst Australians went unchecked.

I believe that if there had been greater understanding generally supported by the organised voices of the churches, the universities, the political activists and so on, then Mr Howard would not have got away with what he did in the midst of the confusion and hysteria which was his own political creation.

I do not speak for the Australian Labor Party, but it seems inevitable as political and public understanding of the issues relating to asylum seekers and refugees mature, that mandatory detention will be at least qualified and that the processing of asylum seekers will be speeded up. Surely the bureaucrats can decide in 2 to 3 months whether an asylum seeker is a genuine refugee or not. Most of all, these people are human beings NOT statistics and they must be dealt with compassionately and in a way compatible with their rights as human beings. That has not and is not being done and it is a national disgrace.

It is worth emphasising briefly that over the years we have been slow to embrace concepts, ideas and ideologies which involved race and cultures different from the Anglo-Celtic values which once dominated the Australian population and its way of life.

Let me cite one or two examples of what I mean. The 'White Australia Policy' was in force during most of the nineteenth and for over half of the twentieth century. Racial purity was all the fashion and right down to Sir Robert Menzies; the threat posed by the "yellow peril from the north" was effectively used to keep the 'White Australia Policy' more or less in place, although as the decades went by it was honoured more in the breach than the observance.

When Menzies retired, Harold Holt succeeded him and under Holt the Government commenced to wind back the policy. At the same time the ALP had dropped the terminology in 1965 from its platform and the Whitlam Labor Government in the early seventies adopted a racially blind immigration policy which brought to an end the fears, animosities and unfairness that the 'White Australia Policy' had generated for so long.

The point I am seeking to make is that this step - in the light of Australia's history - this giant step - the abolition of the 'White Australia Policy' as a concept or benchmark-was taken at a political level without any great agitation or clamour from the Australian people. True it was ALP policy, but Whitlam was the architect - he was the leader and his vision carried the day.

Similarly, Whitlam's leadership took Australia down the path to multiculturalism. In fairness, he was aided and abetted in this journey by Malcolm Fraser, his political opponent, who like Whitlam realized earlier than most that there was no room in Australia for second class citizens: if you were Australian you were entitled to enjoy the same rights and responsibilities as every other Australian citizen.

Of course, ethnic communities and their leaders applied pressure to achieve this result, but generally speaking the Australian public remained somewhat indifferent to the monumental change taking place in the demographics of the Australian population in which, by the middle 70's, something like 1 in 3 Australians were not born in Australia or were the sons or daughters of parents who were not born in Australia.

Once again, the recognition of Australia as a multicultural society was achieved not as a result of community clamour, but as a result of the vision of politicians whose leadership and commitment brought about this great change.

Indeed, there was a spectacular example of this in New South Wales. In 1955 the then Attorney-General, W F Sheahan, successfully introduced a Bill to abolish the death penalty for most offences. 30 years later in 1985 his son, Terry Sheahan, again the Attorney General, succeeded in removing the death penalty for all remaining offences.

There was no public groundswell for abolition, just the leadership of two State politicians who deeply believed that this barbaric punishment should go even if it were more symbolic than real.

If the issue had been put to the people in referendum, the high probability is that capital punishment would still be on the statute books today.

I would now like to comment on a few issues relating to our civil liberties.

Australians, we know, are a freedom-loving people. There's something remarkably sane about our love of freedom. The conscription referenda, Menzies' failure to ban the Communist Party amidst the orgiastic Red-baiting of the fifties, the robustness with which we debate and disagree, all these bear testimony to that.

Rights and liberties are for all intents and purposes part of the business and background noise of everyday Australia and are taken for granted. And yet perhaps there's a problem in that. Perhaps there's too much sanity and not enough idealism in our love of freedom. Ours is a democracy composed of rights attached to circumstance. We seem to assert our concern for civil liberties only when the comfortable patterns of our daily lives are directly threatened.

For instance, by the present controversial legislative proposal to increase the powers of ASIO, including a provision to hold people incommunicado for 48 hours without legal representation.

In the result, we have allowed the forces of reaction to get away with the continual erosion of our basic civil rights.

After September 11, very few would argue that it is only reasonable that some modicum of freedom is now traded for some assurance of security. And yet as early as the year 2000, in such pieces of legislation as the National Crime Authority Amendment Act, the Howard Government had demonstrated contempt for such a basic freedom as the right to silence.

This legislation gives the National Crime Authority the power to compel those brought before it to answer questions. It is now an offence to refuse to answer questions at a hearing. The same legislative amendment also removed the right to silence and protection from prosecution for those who choose to answer.

Indeed, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 anticipated the Government's willingness to entertain questionable uses of the military. It has commonly been called the "shoot to kill bill" because that is exactly what it allows.

The legislation, for the first time, has codified the government's right to employ the military to control public disorder. It was originally justified as necessary for the Olympic Games in the case of a Munich-like incident. However, the Olympic Games have come and gone, but the legislation remains in force.

It is also worth remembering that not only did the Federal Government, during the Tampa affair, use the Defence Signals Directorate to spy on Australian citizens but has and is in the process of seeking to give ASIO police powers to question people who may have information relevant to an ASIO investigation-whatever that means.

Much has also been made about a legislative regime proposed by the Government that threatens to penalise public sector whistleblowers who act in the public interest. The Government insists that all it's doing is modernising the text of those legislative provisions dealing with the protection of information sensitive to our national security.

Well, then, let's have a quick look at the text of the proposed provisions. The Criminal Code Amendment (Espionage and Related Offences) Bill 2001 seeks to make it an offence under section 83.2(1) of the Criminal Code Act 1995 for a person to communicate, or make available, and I quote:

"an official record of information, or official information (a) to a person to whom he or she is not authorised to communicate it or make it available; or (b) a person to whom it is, in the interest of the Commonwealth, his or her duty not to communicate it or make it available."

The words "security" and "defence" do not appear here at all by way of qualification. There's something about the "interest of the Commonwealth", but little more. And it gets worse. Sub-section 4 punishes any person who has in his or her possession an official record of information where he or she does not have any right to that possession. In other words, journalists beware.

In this litany of continuing erosion of civil rights in this country (almost unnoticed and almost ignored by the general community), it is worth noting that since 1999 ASIO has the authority to hack into your computer to view and copy stored information and a host of other invasions of your private domain, with little or no accountability.

To quote a most recent comment by the Cato Institute (the conservative Washington think-tank), we should "...be very concerned about the expansion of federal search and surveillance powers-involving bank accounts, email, business records, and so on-in the name of fighting terrorism."

There was a time when ASIO was an intelligence gathering and reporting organisation. That is the case no longer. The Government seems intent on creating a secret police with power to arrest and interrogate. The Federal Attorney General in his press statement of 2 October 2001 made this clear when he said:

"These reforms would allow ASIO, before a prescribed authority, to question people not themselves suspected of terrorist activity, but who may have information that may be relevant to ASIO's investigations into politically motivated violence."

Confronted with this sort of thing, I am driven to agree with one of the conservative firebrands in the House of Lords, who remarked the other week to the effect that you don't save democracy by stifling it.

Finally, if, as Martin Luther King advanced, justice is indivisible, then rights are indivisible, and if rights are indivisible, then an infringement of the rights of any group among us-be they journalists, asylum seekers or those unfortunate enough to practise an unpopular religion at any one moment in time-is an infringement of the rights of us all.

And yet the problem confronting Australia isn't a matter of having to confer more rights or strengthen those that we have. It is a matter of challenging our fellow citizens to think of rights - and responsibilities - as being more than the stuff of our day-to-day realities.

It is the difference between thinking in terms of my own freedom of speech, as I practise it every day, and thinking in terms of freedom of speech period. It is the difference between voting down a republic because it lets politicians (whom you deem untrustworthy) elect a president, and voting down a monarchy because the very concept of power by heredity offends you.

We just don't think enough in terms of concepts, and as a result we're not very good at seeing the universality of rights. Although we Australians may detest abstraction, we probably need a bit more of it. Ideals after all are abstract.

Those who advocate a Bill of Rights for this country go merely halfway towards providing a solution. The challenge for Australians in our second century of nationhood is to go the whole way and embrace the concept of universality of rights and obligations that apply to us all as members of the human race.

Meeting that challenge, and fulfilling our promise, begins with asking the question, "What is the meaning of Australian democracy?" as we should have done in 2001, and coming to the conclusion that platitudes celebrating mateship and a fair go are simply not good enough as answers.

There is only so much that government-even a government with will and vision-can do in this process. Even if John Howard were to experience a conversion on the road to Damascus, that would not be enough. Even if Phillip Ruddock were to see and understand the misery that he has inflicted so remorselessly on so many unfortunate people for so long, that would not be enough.

Because the challenge of which I speak is not a challenge for Government alone: it is a challenge for all of us.