This is Tony Harris’s latest column. But I wanted to add by way of introduction that Tony removed a great joke from it – which I’ve resurrected for Troppodillians. Namely “The one good thing about Phillip Ruddock’s recent setbacks is that the egg on his face improves his pallor.” NG
The minimalist view of human rights held by Attorney-General, Philip Ruddock, has suffered several blows in the last 30 days. One of these is the June decision of United Kingdom’s High Court that anti-terrorism laws allowing home detention without trial breach Europe’s human rights convention. But Australia’s constitution protects few human rights so do not expect Ruddock – who sponsored equivalent legislation in Australia – to apologise for violating Australian rights.
Another Ruddock excess was his rejection of the views of the United Kingdom Attorney-General, Lord Goldsmith, that Guantanamo Bay’s military commissions prevented a “fair trial in accordance with international standards.” Goldsmith was protecting the rights of his incarcerated countrymen. Ruddock, more politicised and less legally competent, argued that commissions were lawful and fair to David Hicks.
The United States Supreme Court exposed Ruddock’s errors last month. It found that military commissions break basic tenets of American law. They also breach the Geneva conventions by not affording “all the judicial guarantees which are recognised as indispensable by civilised people.” It seems that Ruddock’s position is uncivilised. Others are more caustic. NSW’s public prosecutor, Nicholas Cowdery, describes the government’s approach to the Hicks matter as an “unprincipled disgrace”. Former chief justice of the High Court, Sir Gerard Brennan, talks about moral impoverishment.
Last month, John Howard blamed Hicks’ lawyers for delaying Hicks’ trial by indulging in legal disputation. But Howard has no need for a court saying that, of the Guantanamo Bay prisoners, Hicks has “committed more serious offences than most.” Ruddock offered no support for the presumption of Hick’s innocence: he is bound to a government which seeks no fairness, it just wants Hicks sentenced.
Then we heard last week that the United States accepts that key parts of the Geneva Conventions apply to Hicks and other Guantanamo Bay inmates. This overdue decision – detainees have been treated as illegal combatants undeserving of important convention protections – was neither sought nor welcomed by Ruddock.
If Guantanamo Bay’s prisons are the product of September 11, 2001, Australia’s detention camp on Nauru resulted from the arrival of MV Tampa off Christmas Island one month earlier. You might think it indulgent to equate Guantanamo Bay with Nauru (or Guano Bay as Australia’s detention facility might be called to give credit to the excrement which gave Nauru its first fame). America uses cages and torture. Australia has tents and only wants to deprive refugees of hope.
But there is an important similarity. A United States official confirmed that prisons were established on Cuban shores to achieve the “legal equivalent of outer space”, to be immune from United States law. Australia chose Nauru for the same reason: the government does not want boat people to enjoy Australian legal protections. How then did Ruddock recently claim, “In the United States, as in Australia, there is an acceptance that the rule of law prevails”?
The Australian government’s new Pacific solution meets one of the requirements of the refugee convention – not to return refugees to their country. But Ruddock, a former immigration minister, knows other provisions would be breached. There is a requirement not to punish refugees on account of their illegal entry or presence, and Australia agreed to provide refugees with access to Australia’s courts.
Ruddock also knows that the refugee convention would collapse if every signatory adopted Australia’s policy. Of course, that will not happen: most states will not allow neighbours to export their asylum seekers. It is only mendicant countries such as Nauru – which, by the way, has not accepted the refugee convention – that can be bribed.
In discussions about the Howard government’s policy, scant attention has been paid to Nauru’s views. Australian Ministers are confident that what they decide Nauru will accept. This patronising says much about Nauru’s grasp of its rights and sovereignty. It also says much about Australia.
But there is an important difference between Guantanamo Bay and Nauru. If the government succeeds, asylum seekers arriving by boat will not have the protection of Australian law. Those in Guantanamo Bay have had the benefit of a Supreme Court which has twice repudiated the Bush administration. The good news is that Ruddock has a number of chances to redeem his reputation. If he ignores them, he condemns it.