PDF version with footnotes
Honesty And The Issues
Fr Frank Brennan SJ AO
In company with Anne Henderson (The Sydney Institute)
and Andrew Bolt (Associate Editor, Herald Sun)
The Sydney Institute
Chifley Tower, Sydney
11 February 2004
This paper is an updated version of delivered paper
Let me first plead guilty to being one of the teacher-preachers.
But I do not come to canonise or demonise John Howard, just as I
have never canonised or demonised any of his predecessors as prime
minister in the years that I have been publicly engaged in advocating
the rights of Aborigines, refugees, and other marginalised groups
in Australia. I have no doubt that John Howard would prefer a senior
public servant to keep the truth from him if that would help the
government politically. And I have no doubt that senior public servants
are now well schooled in keeping the politically explosive truth
I returned to Australia on the Australia Day weekend, having been
in Indonesia, Thailand and Cambodia during the previous month. And
before Christmas I had been in Vietnam. When I return from such
countries, I come with a heightened sense of the gift and the burden
it is, being Australian and wanting to give as much as we receive
in this part of the world. Each time I return, prizing more our
democracy and the rule of law. I can criticise John Howard if I
want to and he cannot just throw me in jail even if I annoy him
I also return each time a little more worried about the state of
our democracy and the rule of law, precisely because honesty in
public life is now such a fickle commodity. There are some issues
where truth does not matter, provided the majority approves the
outcome. When a government has been in power a long time, when the
upper echelons of the public service are rewarded for keeping their
political masters in the dark, when the Opposition has been in disarray,
and when the public has been afraid, there seems to be less political
oxygen for the usual checks and balances on the Executive which
acts in harness with its media scrum of supporters. The Senate gets
treated like "unrepresentative swill" (to quote Mr Howard's
immediate predecessor). The judiciary gets sidelined because they
are unelected and deemed to be soft in the head. Church leaders
get head-butted, except those who caution their fellow church leaders
to leave the government alone. The leaders of civil society get
told to stand for election or shut up. And those who appeal to public
morality are told by people like Andrew Bolt to wake up to ourselves
because we are so out of touch with what the people want. For example,
Andrew Bolt is right when he claims to have told me on the ABC Lateline
program two years ago that the government's policy of mandatory
detention was popular and would stand. I continue to respond, "That
may well be so. I could not care if the policy is supported by 99%
of Australians. I will continue to decry a policy and its implementation
that results in a seven year old child being hit with baton and
tear gas and public servants glibly denying that any such thing
occurred or was even reported." Let me be so bold to declare
that these marginalising assaults on groups which provide some check
and balance to the Executive and their supporters are more likely
to occur unchecked when the Liberals are in power. Because when
they are in Opposition, they are more likely than Labor to stand
up for senators, judges, clerics and the like, or at least to decry
the indecency of the government attacks on the nation's traditional
Having been a long time campaigner for Aboriginal rights under
both types of government, I thought I had seen most of the dangers.
But I think there is an increasing flabbiness in our consideration
of honesty and the issues. Let me commence with three anecdotal
examples before considering three case studies of the honesty of
government in its treatment of asylum seekers in the name of border
The Devine Praises
I returned from East Timor two years ago. I was immediately called
to Woomera where asylum seekers were sewing their lips and throwing
themselves on the razor wire. I then met with Minister Philip Ruddock
who said he understood my purpose. I was opposed to detention and
I would do what I could to reverse the policy. That was true but
I told the minister there was little point in an unelected member
of the elite fulminating against a policy which enjoyed bipartisan
support in the parliament and which, with rigorous implementation,
had assisted in the return of the government. But I assumed Ruddock
and I were ad idem in wanting to ensure no further breach of human
rights inside detention centres. Presumably the regular attendance
of a credible citizen with access to government would be a useful
thing. On that basis we then corresponded often and met regularly.
There is a bevy of highly paid armchair journalists who have never
visited one of these centres and yet they not only defend the government
policy to the hilt. They feel obligated to "do in" any
of us who dare to suggest there might be a better way than holding
seven year old children behind the razor wire at places like Woomera
for four years. For some of these journalists, the publication of
my Tampering with Asylum was the last straw. Some reviewers have
pointed out that the book is very unemotional. I am pleased to hear
it. One of my government deep throats told me early in my visits
to Canberra, "Frank, we're sick of the moral outrage."
So I set about writing a book that might have some prospect for
shifting the terms of the debate.
Frank Devine's "ad hominem" piece appeared under the
headline, "Do gooder Priests should stay out of the asylum
debate" (The Australian 12 December 2003). He said:
Brennan has apparently had an unusual freedom of access to boatpeople
in detention camps. Yet he tells us little about them as human beings.
Sparse anecdotes are used to belabour the Government for its harsh
treatment of them. We learn next to nothing about their experiences,
their values, their aspirations.
The Australian finally agreed to publish my response dealing with
the substantive issues a month later. But the editors omitted my
one reference to Frank Devine. I had said, "Frank Devine be
warned. This column is written by a priest and contains some references
to decency." Some elites are protected from public criticism.
Meanwhile the manager of the Tiger XI soccer team, a group of mainly
Afghan asylum seekers in Brisbane, had written to Devine inviting
him to meet the boys. I had quoted these boys' experiences extensively
in the book. Devine declined the invitation, saying, "As an
individual I don't doubt that I would be moved and sympathetic by
making contact with the members of Tiger XI, and their generous
supporters. However as a journalist commenting on policy, in this
particular instance, I don't believe my store of knowledge would
It would not matter how much detail I gave of the experience of
these boys or others like them. Professional journalists know all
the answers in this policy area without ever having visited a detention
centre. All they need to do is access the government web sites and
turn on the drip.
The Windschuttle Connection
I have not bought into the contemporary academic culture wars.
While surfing the net for other things, I stumbled across Keith
Windschuttle's address to the Samuel Griffith Society in May 2003
entitled, "Mabo and the Fabrication of Aboriginal History".
I had thought I had put the Hugh Morgan-Ray Evans Catholic conspiracy
to rest in my unanswered letter to Quadrant in September 1999. But
not a bit of it. Here it was, back again, in a more simplistic,
virulent form. Windschuttle wrote:
One of the critical issues in the debate over native title is
the attitude the pre-contact Aborigines had to the land. Most
discussion assumes they had clearly defined territories, which
were exclusively theirs. This concept was one of the principal
assumptions on which the Mabo decision was made. Justice Sir Gerard
Brennan has made clear that his own judgment had been informed
by his son, Father Frank Brennan, the Jesuit barrister and advisor
to the Catholic bishops on Aboriginal affairs.
I contacted Mr Windschuttle intimating
that this statement was not only unsourced but also unfounded and
untrue. Justice Brennan had made no such thing clear. Neither could
he, because it was a lie. Windschuttle replied:*
I can also now see that my statement that Justice Brennan’s
views had been informed by your own work could have been better
worded. I should have said: “Justice Sir Gerard Brennan’s
judgment made it clear that his views were informed by his son,
Father Frank Brennan … ” In support of that statement,
I should have cited Franklin’s lengthy discussion of the
subject in Corrupting the Youth (pages 388-98), which
shows it is a reasonable inference to draw since your earlier
opinions were couched within the framework of the same Catholic
natural law principles that informed your father’s judgment.
Windschuttle's claim is historically unfounded, philosophically
stupid and logically false. Consider the logic: "X and Y are
influenced Theory Z. Therefore X's views are informed by Y."
For example, Windschuttle and Reynolds are influenced by the historical
method. Therefore Windschuttle's views are informed by Reynolds."
Writing of his opponents in this oration, Windschuttle says, “I
have been checking the footnotes of the other historians in this
field, and have found a similar degree of misrepresentation, deceit
and outright fabrication”. Meanwhile he can find support for
bold assertions about Justice Brennan’s mindset with a general
reference to the writings of James Franklin. Rather than being misled
by Franklin, would not the serious historian interested in discerning
what has informed the judges in the formulation of their views about
land rights and the legal propriety of land claims be better off
researching the writings and activities of the judges?
I was only 14 years old when F. G. Brennan QC appeared for the
Fijian landowners in the Dening Commission of Inquiry which determined
the future of CSR in Fiji. I was only 18 years old when the Commonwealth
of Australia briefed him to prosecute the murder trial involving
many Tolai landholders in PNG charged with the murder of the Commonwealth
district patrol officer. The issue was at its core a land rights
dispute. I was only 19 years old when he was briefed by the Commonwealth
as the senior counsel for the Northern Land Council in the Woodward
Royal Commission. Woodward is on the public record having acknowledged
that Brennan drafted key sections of the land rights bill then presented
to government. It is spurious to suggest that my father’s
professional legal activities were being informed by my views at
this time. I have no doubt that such experiences did directly inform
his judicial mind. Justice Brennan then spent more than ten years
on the High Court before the determination of Mabo hearing numerous
land rights appeals from the Northern Territory. Like his brother
judges, he was more aware than Windschuttle of the different perceptions
of land rights between people in Arnhem Land and Torres Strait Islanders.
Professor Tony Coady has observed in his review of Franklin's Corrupting
the Youth that "Franklin's idea that Catholic philosophy via
natural law theory had a big influence on the Mabo decision"
is "unconvincing", "since resorting to morality to
justify legal decisions has other foundations other than natural
law, as is clear in the work of the Oxford philosopher Ronald Dworkin
and in much of the human rights movement." It is extraordinary
that there are still Australians credited as thinkers and academics
who can seriously postulate that it is only a Catholic mindset that
could result in the High Court finding for Aborigines in their common
law claims to land. Most other superior courts in other equivalent
countries have done the same regardless of the religious affiliations
of the judges.
I would have thought any fair reading of the majority judgments
in Mabo would have given rise to the conclusion that the Brennan
judgment was the most conservatively and judicially crafted of those
judgments. Unlike others, he did not quote historians such as Henry
Reynolds. He actually confined himself to the historical record
regarding the Torres Strait Islands. I have always presumed that
is why the Brennan judgment commanded the assent of Chief Justice
Mason and Justice McHugh, two judges very unlikely to subscribe
assent to a judgment “informed by” a priest who was
a son of the judge.
When it comes to Aboriginal and refugee rights, much "academic
writing" as well as the journalistic comment is little less
than unreflected prejudice.
Enough of Catholics! Let me take an example from the government's
treatment of the primate of the Anglican Church. Anglicans Howard
and Downer continue to be upset about the remarks made by the Anglican
Primate after the Bali bombing in October 2002. Preparing for the
next election, John Howard is not prepared to let go the Carnley
interviews of that time. The Adelaide Advertiser of 16 February
2004 carries this report of the Prime Minister:
"I think church leaders should speak out on moral issues
but there is a problem with that justification being actively
translated into sounding very partisan," he said, in an interview
with The Advertiser.
"I don't deny the right of any church leader to talk about
"But I think, from the point of view of the unity of the
church, it stresses and strains when the only time they hear from
their leaders is when they are talking about issues that are bound
to divide their congregations."
Mr Howard singled out an attack by Anglican Primate of Australia
Peter Carnley after the Bali bomb blast, which included suggestions
the bombers believed Australia was too close to the US.
Echoing a speech by Foreign Affairs Minister Alexander Downer
in August, Mr Howard said a church leader's first responsibility
should have been to deplore the attack.
"I know something of the composition of church congregations,"
"There are a range of political views and you can offend.
"Particularly (when) some of the church leaders have been
particularly critical of our side of politics, they end up offending
a large number of their patrons."
Some church leaders also mounted a campaign just before the Iraq
war last year, trying to convince Mr Howard to find a way to end
the crisis peacefully.
Mr Howard, an Anglican, said the churches' "primary responsibility
is spiritual leadership", which he respected and supported.
"They can say what they like but, equally, they have to
understand that if they say things that are unreasonable, a lot
of people are going to have a go back," he said.
Last August, Downer had commenced his Playford Lecture in this
Let me begin with a personal anecdote.
Listening to the ABC’s AM on Saturday morning 19th October
I was dumbfounded to hear the announcer Hamish Robertson say “well,
the head of the nation’s Anglican Church says the Bali Bomb
attack was an inevitable consequence of Australia’s close
alliance with the United States…Dr. Peter Carnley says terrorists
were responding to Australia’s outspoken support for the
United States and particularly its preparedness to take unilateral
action against Iraq.”
Here was the head of my own church, reported by the ABC as rushing
to judgment and blaming the Australian Government for bombing
incidents in which so many of our people were killed or terribly
Whether this report was fair or not, it struck me hard.
There was no concentration on comforting the victims and their
families, no binding up of the broken-hearted while a shocked
Yet surely that first and foremost is what was needed and what
we were entitled to expect.
It was a stark reminder of the tendency of some church leaders
to ignore their primary pastoral obligations in favour of hogging
the limelight on complex political issues –and in this case
a national tragedy –in ways which would have been inconceivable
in the Playford era.
This is something that has troubled me for some time.
There is always need for caution when you have a senior politician
with a team of researchers and speech writers ten months later deciding
not to quote directly what his victim said. In the AM interview,
Carnley actually said, 'I wouldn't say the Howard government brought
the bomb attack on the Australian people.' Downer was taking exception
to Carnley's address to the WA Synod on 18 October 2002 in which
he actually said:
Most of us now believe that such a well planned and strategic
placing of a bomb speaks clearly enough for itself. Retaliation
against America's allies has been verbally threatened for some
The targeting of a nightclub, which is known to have been popular
with young Australians on holiday, suggests that this terrorist
attack was aimed both at Australia, as one of the allies of the
United States of America and, at the same time, at what is seen
by militant Muslims to be the decadence of western culture.
Does anyone now seriously doubt what Carnley was saying? Australians
were being targeted both because we are identified with the decadent
west by militant Muslims and also because of our close relationship
to the United States. There may also have been other factors, including
our intervention in East Timor.
There was controversy at the time with Carnley's address. He then
sought to set the record straight with his published letter of 29
A number of your correspondents have alleged that I laid the
blame for the nightclub bombing in Bali on the Australian Government.
This is incorrect.
Those who take the trouble to read the text of my Synod address
on the evening of Friday 18 October, and the transcript of the
press conference that followed it, will find that at the press
conference Tanya Nolan explicitly asked: 'So are you therefore
criticising the Howard government's vocal support of American-led
The record shows that my reply was: "No I'm not wanting
to criticise the Howard government's support. I think we did think
earlier on that we were unwisely supporting unilateral action
by the United States in Iraq. I think we've moderated that position.
If anything I think the Howard government is to be commended for
backing away from that and for supporting UN inspections."
It is public knowledge that I wrote to John Howard as long ago
as 8 August expressing the concern of Anglican Bishops at Australia's
support of the US 'first strike' policy. That is a matter of fact.
It might now be alleged in the spirit of "I told you so"
that the bomb attack in Bali had been brought upon the Australian
people. In response to that suggestion I once again said: "No;
I wouldn't say the Howard government brought the bomb attack on
Australian people. I think it was our lot in fact to suffer because
of our close association with America anyway. I think any government
with an alliance with America would have been in the firing line.'
Clearly, far from laying blame I resisted being led in such a
simplistic direction. The fact is that the Church is not into
the culture of blame. Its business is to help people process the
trauma of an utterly despicable event that we will wrestle to
understand and agonise about for many years to come. Some of your
correspondents are apparently content to contend that the bombing
was a reprisal for Australian support of independence for East
Timor, or even that the large number of Australians killed or
injured can be explained simply as a kind of geographical accident:
the proximity of Australia to Bali means that naturally there
would be a good number of Australians there.
For many of us, however, such an explanation of a well planned
and deliberate targeting of a nightclub when it was common knowledge
that large numbers of Australians would be present, seems both
too narrowly focused and at the same time too shallow. The shadow
side of human motivation to hatred is surely much more complex.
We will be whistling in the dark if we do not take note of the
actual reasons expressed by the terrorist network itself. Within
recent weeks there have been explicit reported threats against
America and its allies. For this reason alone, it is entirely
understandable that a Newspoll conducted last week for a Sydney
newspaper found that 69% of respondents believed our support for
the US was a factor in the Bali attack.
Islamic fundamentalist invective against western culture- whose
global intrusiveness is resented and hated- has been long sustained.
The addressing of hatred is a religious and not just a political
matter. You cannot bomb away hatred. That is why Christian leaders
have a responsibility to enter into dialogue with moderate and
peaceable Islam and work actively to overcome the deep seated
alienation that so clearly exists at present between East and
It is not by denial, but in owning up to some of the harsh and
difficult realities of our situation, and in grappling with them
together, that we will be able to move forward. By this means
we will give ourselves the understandings to marginalise- and
eventually neutralise and eliminate- the destructive forces of
suspicion and hatred that feed world terrorism.
Though this lengthy correction of public misperception by Carnley
counts for nothing with Howard and Downer, should they not at least
acknowledge that Carnley was trying to deal with a highly nuanced
issue in a responsible way? How can anyone honestly read this letter
and then ten months later make Downer's outburst about clerics "
hogging the limelight on complex political issues –and in
this case a national tragedy".
It is quite dishonest of Downer ten months later to claim, "There
was no concentration on comforting the victims and their families,
no binding up of the broken-hearted while a shocked nation mourned."
As Downer well knows, on 14 October 2002, before the Synod address
and immediately after the bombing, Primate Carnley issued a statement
full of comfort for the victims and binding up of the broken-hearted.
Consider the text for yourself:
The head of the Anglican Church in Australia, Archbishop Peter
Carnley of Perth, today expressed his horror at the murderous
attacks in Bali yesterday.
"I am shocked at the ferocity of the attacks and deeply
concerned for the victims and their loved ones," Dr Carnley
said. "The loss of life and injury caused is tragic. This
has shattered any illusions we may have had about the threat to
Australians posed by terrorists. Terrorism can rear its ugly head
even in the most idyllic surroundings."
"This tragic event also reminds us that evil people are
operating close to home."
Dr Carnley said he had some sympathy for the suggestion that
Australia might need to give priority to using its military and
intelligence resources to pursue the architects of terrorism within
Australia and in cooperation with its near neighbours.
Archbishop Carnley said that for the Balinese, who depend so
heavily on tourism, this was a double blow. They had suffered
heavy casualties as Australia had, and many would lose their livelihoods.
Dr Carnley said that all Anglican parishes would offer prayers
for the victims, their friends and families, regardless of their
nationality or faith. He said he had called on members of the
Anglican community to offer whatever support they could at a local
"My prayers are with the families and friends of those who
are victims of this atrocity."
While the nation's leading Anglican politicians have maintained
their campaign to do in Carnley, Archbishop Jensen of Sydney has
rightly observed that this particular attack on Carnley was "amateurish"
and "under-researched". It is also dishonest.
Two months before Downer's Playford Oration, the government was
arguing for an expansion of ASIO's powers in the Senate. Government
Senator Santoro told the Senate:
We know from horrific experience that not only do Australians
face the same level of threat as any other people but also, as
was the case in Bali in October last year, they are very specific
What Santoro said is quite consistent with Carnley's position.
So what's the problem? Are we not permitted to speculate on why
Australians are very specific targets. Or is that no role for reflective
Though there was spirited debate and cabinet resignations in the
UK because of Mr Blair's ready membership of the Coalition of the
Willing, Canberra compliance with prime ministerial directives was
complete. It was very troubling to hear the mixed messages from
Prime Minister John Howard and Mr Tony Abbott about the increased
risks of terrorism to Australian citizens. Abbott, the Leader of
the Government in the House, told Parliament, "There is the
increased risk of terrorist attack here in Australia". Next
day, the Prime Minister told us, "We haven’t received
any intelligence in recent times suggesting that there should be
an increase in the level of security or threat alert." Regardless
of who was right, their contradictory statements provided incontrovertible
evidence that there was minimal debate, discussion and discernment
within our Cabinet and political party processes prior to making
a commitment to war in such novel political circumstances. The thinking
was done in Washington. We signed on, presuming that our national
interest and the international common good would be served by Alliance
compliance. In these circumstances, there is a place for church
leaders to speak out. If they are misunderstood and then correct
the public record, that should be acknowledged by our very sensitive
political leaders. If I were Peter Carnley, I would be feeling regretfully
vindicated by the candid observation of Federal Police Commissioner
Mick Keelty after the Madrid bombing when he answered Jana Wendt's
question "Could this happen here?":
If this turns out to be Islamic extremists responsible for this
bombing in Spain, it's more likely to be linked to the position
that Spain and other allies took on issues such as Iraq. And I
don't think anyone's been hiding the fact that we do believe that
ultimately one day, whether it be in one month's time, one year's
time, or ten years' time, something will happen.
The Dishonesty in seeking a coherent rationale for the detention
Last week, the Commonwealth Solicitor General went to great pains
to avoid any suggestion that the mandatory detention policy was
designed as punishment or a deterrent. Mr David Bennett QC submitted
to the High Court that "that the legitimate non-punitive purpose
has two aspects; it is the facilitation of removal or deportation
and prevention of absorption into the community. Both those purposes
are capable of applying to children of all ages". The Commonwealth
feels constrained to make such submissions for fear that the High
Court would rule that mandatory detention imposed by Parliament
without any court order or review, and designed to be a deterrent
would be unconstitutional. No doubt there were a few shivers around
Canberra when the influential Justice Gummow observed, "Undoubtedly,
it is punitive. The question is whether there is an exception. Of
course it is punitive. … They are locked up."
The Commonwealth's submissions are in line with Mr Ruddock's oft-repeated
remark that "Detention is not arbitrary. It is humane and is
not designed to be punitive." The Commonwealth's submissions
are more difficult to reconcile with the Prime Minister's general
observations on his policy, including mandatory detention, when
he told Fran Kelly on the ABC in London on 14 November 2003:
The point of our policy is to deter people from arriving here
illegally. That’s the starting point. That’s what
people have got to understand. Our policy is to say to the world
– we will take 12,000 humanitarian refugees a year, we’ll
have that policy, we’ll run a non-discriminatory immigration
policy, but we will not have people arriving here illegally and
we will act to deter that occurring.
Presuming the voters are not to be told one thing while the courts
are told another, we have to assume now that the purpose of mandatory
detention is not punishment or deterrence. (But it would be a good
thing if someone told that to the Prime Minister.) We citizens are
entitled to a coherent rationale for detention once it is established
that someone arriving without a visa is not a health or security
threat and once their identity is established. This is especially
the case if the detained person is a child suffering the proven
traumatic effects of ongoing detention.
All non-government parties now accept that mandatory detention
at the processing phase is irrational and unacceptable. They also
accept that rejected asylum seekers should not be detained if there
is no immediate prospect of their being returned home and if they
are not a flight risk.
We should all keep the Howard government focussed on providing
a sensible answer as to why they detain all unvisaed asylum seekers
once they are known not to be a health or security risk, while at
the same time allowing other asylum seekers to reside in the community
even if they did not make a full disclosure of their circumstances
when they applied for a tourist or business visa. This week Justice
McHugh wrestled with the circumstances in which you could impose
mandatory detention on all members of a class (unvisaed asylum seekers)
. He said, "The reason may be that you just cannot deal with
a class and seek to detain a class of people, unless there is some
cogent evidence that more or less every member of the class is a
person who may breach the particular purpose that the legislature
is seeking to achieve." 90% of this class end up being proved
to be refugees. Very few of them are removed from Australia each
year. On average, they constitute only 222 of the more than 10,000
removals each year. How can you justify detaining this class, most
of whom are proved to be refugees, while allowing another class
(previously visaed asylum seekers) to reside in the community during
their processing and appeals even though most of them are proved
not to be refugees? Mr Ruddock's explanation was always very feeble,
namely, "The situation for people who overstay their visa is
fundamentally different. We know who they are and have already assessed
that they do not constitute a danger to the Australian community."
Was a seven year old child hit with baton and tear gas at Woomera?
I was in the Woomera facility at Easter two years ago when the
riots broke out. I returned to the facility a couple of days later
and saw the baton bruises to a 7 year old boy with my own eyes.
I heard from others, including the ACM manager, that tear gas had
hit some children during the disturbance. I immediately wrote to
Mr Ruddock saying that this was no place for children. There was
no need for children to be hit with baton and tear gas in modern
Australia. Two weeks later, DIMIA denied that any child had been
injured. With indecent haste and professional negligence, Mr Stewart
Foster, the Director of DIMIA's Public Affairs section in Canberra,
posted a denial on the departmental webpage within six working hours
of the publication of my complaint in the newspapers. He checked
neither with the minister nor with the relevant sections of his
department who had received copies of my complaint two weeks previously.
After an inquiry by HREOC, the Australian government has now apologised
to the child and his mother for the breach of his human rights.
The government acknowledged "that at the end of an exhaustive
investigation, where the delegate duly and fairly considered submissions
from all concerned parties", HREOC found "on the balance
of probabilities, that (the child) was struck with a baton by an
unknown Australasian Correctional Management (ACM) officer and that
this constituted a breach of his human rights." For its part,
ACM continues to claim that the delegate’s finding "was
against the weight of the evidence before him" and "not
established to the requisite standard of proof". ACM continues
to claim that it did not discover the allegation of the assault
until a month after it occurred. But even ACM admits that its own
doctor had a record of the assault shortly after it occurred. Given
that the mother and child were being held in detention, surely notice
of the assault given to an ACM employee constitutes notice to ACM.
ACM tried at the hearing to suggest that the mother had simply
invented the injury to her son so people like me would take up her
cause. At no time did ACM choose to question me even though I came
to the hearing in Adelaide having provided an affidavit of what
I had seen and heard at Woomera. ACM submitted to HREOC that tear
gas does not cause harm. They also claimed that "a full and
thorough investigation into the assault found" could not "remedy
or reduce the loss or damage suffered by (the child) as a result
of the baton strike found".
Was Justice Mildren told the truth and was he given the assistance
he could rightly expect from the Commonwealth as a model litigant?
We are used to politicians in the Howard government attacking
unelected judges. That seems to be the prerogative especially of
grey suited ministers trained as lawyers and priding themselves
on their conservatism. It is just not altogether clear what they
are conserving when they engage in this sort of political sport.
But now things have been taken to a new level. Unelected public
servants are now given licence to attack judges.
When the Minasa Bone was being towed out on to the high seas two
weeks ago, lawyers sought the intervention of the Supreme Court
of the Northern Territory to ensure that the 14 Turkish Kurds could
obtain assistance and pursue their asylum claims if they had any,
which of course was highly likely.
The Commonwealth saw fit to inform the court by affidavit: "On
6 November 2003 the AFP/DIMIA team boarded the vessel and conducted
interviews with the crew and passengers to elicit intelligence information
regarding possible people smuggling." Why did the Commonwealth
not see fit to inform the court of the interviews conducted or about
the information received about asylum claims? The government now
admits that asylum claims were made across the Turkish-English language
barrier without translation services being made available.
During the hearing of the case on 7 November 2003, the judge asked
the Commonwealth's key witness, Mr John Charles Eyers, Assistant
Secretary, Legal Services and Litigation Branch, DIMIA: "Do
you know whether or not any of the persons who arrived on the vessel
asked for assistance?" He answered, "Not to my knowledge,
Your Honour". He clarified this answer saying, "I don't
know whether they did or not." When the judge delivered his
written reasons two weeks later, he said:
Mr Eyers (was not) able to advise whether or not any interpreters
in either Turkish or Indonesian had been employed at any time
either by the Navy or by the Australian Federal Police/DIMIA team.
Mr Eyers was asked specifically why Ms Cox's request to seek access
to those on board the vessel was not acceded to. He replied that
it was normal procedure that unless a person requested legal assistance
it is not provided. He said that he did not know whether any of
the persons concerned had asked for legal assistance or not and
did not know whether any of them had asked for asylum. Even allowing
for the urgency under which this affidavit was sworn I found it
incredible that the (Commonwealth's) principal witness could not
answer these questions.
Next day, Mr Stewart Foster issued a statement saying that "a
number of comments made by Justice Mildren in his judgment on the
Minasa Bone case need to be clarified". Mr Foster wanted the
public to understand, as Justice Mildren had not, that one reason
for the government pronouncement of a "temporary air exclusion
zone" around the boat was "to protect the privacy of those
on board the Minasa Bone". Justice Mildren had the temerity
to observe, "Behaviour of this kind usually implies there is
something to hide." You can imagine the public servants giggling
at their word processors inventing these lines. "We don't give
a damn if these people have a right to asylum but we do want to
maintain their right to privacy while they are with us!" It
is pretty sick stuff. In the old days it may well have been contempt
of court. And it definitely would have been only the minister who
was a party to the proceedings and not the public servants given
licence to take pot shots at the judge. Now it is just Canberra
According to Mr Foster, "The Government's key witness was
never asked if those on board the Minasa Bone had made a claim for
asylum". But hang on. The key witness had told the court that
interviews were conducted "to elicit intelligence information
regarding possible people smuggling" and he did not know whether
anyone on the boat had asked for assistance of any sort. What is
DIMIA now suggesting? If Mr Eyers had been asked directly about
any request for assistance with asylum, would he not have answered,
consistent with his more general answers, "I do not know".
Or is DIMIA now intimating that if asked directly, Mr Eyers would
have told the court that he did know. That he did know what? Would
he have asserted that no claim of asylum was made? Remember that
two days after Mr Eyers gave his evidence, Ministers Downer and
Vanstone told us formally in a joint press release, "The passengers
of the Minasa Bone did not claim asylum in Australia". We now
know that was false. At the time Downer and Vanstone made this statement,
there were public servants who knew it was false. Is DIMIA now intimating
that, if asked, Mr Eyers would have told us correctly that asylum
claims had been made? Either he knew or he didn't. The judge thought
it incredible that he did not know. If that requires clarification,
then presumably Mr Eyers did know or else there must be some credible
reason for the most senior public servant responsible for immigration
litigation not knowing. If he did know, did he know the truth or
did he know only the lie being peddled around Canberra at the time
by his fellow public servants: that there had been no asylum claims
Isn't it time for DIMIA to wear the wrap? Whether it be deceit,
reckless incompetence or wilful institutional miscommunication born
of the "Children Overboard" mindset in Canberra, public
servants have caused senior ministers to mis-state the facts and
have withheld from a court relevant information in a way the judge
finds "incredible". Having heard from the government's
key witness that he did not know whether any of those on board had
asked for assistance of any sort, the judge was fully justified
in finding it "incredible" that the key witness did not
know whether any person on the boat had asked for asylum. It is
even more incredible that public servants use the taxpayer funded
web site to further obfuscate the truth, implying that the judge
hasn't quite got it right. Unlike Downer and Vanstone, Justice Mildren
was not led into error by the public servants. But neither was he
assisted by them. Sadly in this high policy area, the Commonwealth
is no longer a model litigant. It is time to put a stop to the government's
If there is to be criticism of the judiciary, should it not come
from elected politicians answerable to the Parliament (and presumably
subject to the Standing Orders)? I am aware that the Howard government
has engaged in a high level of criticism of the judiciary. But it
is a novel development to license your public servants to challenge
the findings and reasoning of judges suggesting the need for clarification
of the judge's findings, especially when you have been a party to
the proceedings, and especially when one of your public servants
has failed to provide the judge with information which he thought
could be provided by the Commonwealth as a model litigant. If Mr
Foster continues this precedent, I suggest there be a formal amendment
to the Commonwealth's model litigant policy.
When we go through a down in the political cycle with government
encountering little opposition in the parliament, it is difficult
to conduct honest public dialogue about policies related to minorities
and national security. Fear and flabbiness take over. We come even
to a forum like this assuming that Andrew Bolt comes to canonise
the Prime Minister and Frank Brennan comes to demonise him. I must
confess that I do think Andrew exhibits canonising tendencies. Having
maintained a robust, face to face dialogue with Minister Ruddock
and now Minister Vanstone, I pride myself on not engaging in the
business of demonisation. The temptation is more readily avoided
when Labor was the first to institute the policy and Labor for so
long was indistinguishable from the Howard government on the policy.
Not being a paid columnist, I make no pretence to being an expert
in all fields of government policy. I confine myself to my last.
So confined, I find an ongoing deficit in public honesty and rigorous
inquiry when it comes to our treatment of asylum seekers and the
identification of their deprivations with national security and
border protection. I am staggered by the prejudice of some of our
journalists and so called academics. I hope there is still a role
for church people such as myself to name it as we see it, to correct
the misperceptions if need be, and to espouse rational and coherent
policies that do less harm to vulnerable people. While Howard and
Downer continue to put their church leader in the public gun over
Bali, while Devine rests in his Sydney armchair pontificating about
Woomera, and while Windschuttle deludes himself and his supporters
about the Catholic enactment of land rights, there is a need for
more encounters between people like Andrew Bolt and myself. I am
pleased to live in a country where government finally has to apologise
to the mother of a seven year old boy assaulted with baton and tear
gas. I lament that the mainstream media does nothing about it. I
deplore the independent contractor's refusal to acknowledge fault.
And I content myself with the thought that even Messrs Howard, Downer
and Ruddock would prefer to live in a country where these things
did not happen. The cost is allowing the Carnleys, the courts, the
Senate, an independent media, and a robust civil society to express
a contrary view, even if the majority are satisfied that the government
will do what is best for "us" (as against "them")
in tough times.
* Windschuttle thinks
I owe him an apology for quoting these remarks, having 'broken a
confidence by publicly repeating what was a private conversation
between the two of us, without seeking my permission.' The prompt
correction of the public record warrants the publication of his
own inadequate correction and defence. I am not aware of any private
confidence between us being broken. My purpose has been a correction
of the public record. I was never consulted prior to the publication
of his uncorrected, false statement to the Samuel Griffith Society.
I do not need his permission to correct the public record, given
his failure to do so.
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