Crimes Against Humanity: An Interview with Human Rights Lawyer Julian Burnside

by Paul Gregoire

The Norwegian freighter MV Tampa entered Australian waters on 29 August 2001, carrying 433 asylum seekers who’d been stranded on a fishing boat in the Indian Ocean. The vessel crossed the maritime boundary close to Christmas Island, despite having been refused entry by Australia.

Australian authorities responded by sending special forces troops to board the ship and prevent it from moving any closer to the island. After a period of being detained at sea, most of the asylum seekers were eventually taken to Nauru.

It was then prime minister John Howard who gave the order to prevent the ship from entering Australian territory. Over the following weeks, the nation’s harsh policy of turning back boats and mandatory offshore detention was first implemented.

In early September, Australian Federal Court Justice North ruled that the federal government had broken the law by detaining the asylum seekers at sea, and ordered they be brought to the mainland.

But just a few days later, the Australian government appealed the decision to the full bench of the Federal Court. The majority sided with the government and ordered the asylum seekers remain in offshore detention.

Guilty of domestic crimes

Barrister Julian Burnside QC represented the Victorian Council for Civil Liberties in its successful action against the Australian government over the Tampa affair. The human rights lawyer argues today that Australian politicians continue to commit major crimes through their treatment of asylum seekers.

The International Criminal Court (ICC) has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and crimes of aggression. Australia is a signatory member of the international court.

The treaty that governs the court, the Rome Statute, entered into force in Australia in September 2002. This led to the compulsory establishment of similar crimes under Commonwealth law. And it is these domestic laws that Mr Burnside believes certain Australian politicians have transgressed.

The lawyer outlines his proposition in his recently released documentary Border Politics, which is currently being screened around the country.

Dwindling freedoms

The long-time refugee advocate is also a vocal opponent of the Coalition government’s ongoing assault on civil liberties. Last month, he warned that current Turnbull government initiatives are leading the nation “downhill all the way to an Orwellian nightmare.”

Mr Burnside pointed to home affairs minister Peter Dutton’s proposal to expand the powers of the Australian federal police (AFP) at airports as one such move. It will allow officers to inspect IDs without having a reasonable suspicion that an individual is involved in any criminal activity.

Sydney Criminal Lawyers® spoke with Julian Burnside QC about the crime he states certain current and former federal politicians are guilty of, the dangers of the government’s erosion of citizens’ civil rights and the need for the establishment of an Australian bill of rights.

Firstly, Mr Burnside, you argue in your documentary Border Politics that Australian politicians have been benefiting by stoking the general public’s fear of asylum seekers.

Can you outline how these politicians utilise this fear and in what ways it works them?

It started with Tampa. North J’s judgment in the Tampa litigation was handed down in Melbourne at 2.15 pm on 11 September 2001 – just 8 or 9 hours before the attack on America.

Suddenly, all Muslims were terrorists and boat people were “illegals.” Tampa was Howard’s last-ditch attempt to save his government. And because of 9/11 he stormed back in the November 2001 elections.

Since then, the Coalition have continued to call boat people “illegal” and Labor have never contradicted the lie. They have both profited from their dishonesty about refugees.

There are currently around 750 asylum seekers being held in detention and transit centres on Nauru and Manus Island.

The Australian government is hoping the US deal will lead to most of these people being resettled in the States, which is highly unlikely. And Turnbull refuses to accept an offer from New Zealand to settle 150 of the men on Manus.

In your opinion, what does the government’s treatment of these people amount to?

It amounts to torture. And it is certainly a breach of our obligations under the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the Statute of Rome, the Torture Convention and the International Covenant on Civil and Political Rights (ICCPR).

In addition, it involves numerous offences – by our government ministers – against Australia’s Commonwealth Criminal Code. The Australian Criminal Code now recognises various acts as constituting crimes against humanity.

One of them, section 268.12, is of particular significance in the present context. Section 268.12 creates a “Crime against humanity – imprisonment or other severe deprivation of physical liberty.”

The elements of this offence are relatively simple:

  1. The perpetrator imprisons one or more persons;
  2. That conduct violates Article 9 of the International Covenant on Civil and Political Rights;
  3. The conduct is committed knowingly as part of a systematic attack directed against a civilian population.

The penalty is 17 years imprisonment. It is a very serious crime.

Australia’s system of mandatory, indefinite detention appears to satisfy each of the elements of that offence, as does the Pacific Solution.

We imprison asylum seekers. That conduct is intentional, and is part of a systematic attack directed against those who try to seek asylum in Australia without receiving prior permission.

The United Nations Working Group on Arbitrary Detention has found that the mandatory detention system violates Article 9 of the ICCPR.

A representative of the International Criminal Court has expressed privately the view that asylum seekers as a group can readily be regarded as “a civilian population.”

By our own legislative standards, our mandatory detention system amounts to a serious crime against humanity.

You’ve just pointed out that certain Australian politicians are guilty of crimes under Australian laws, which were prompted by our nation’s ratification of the ICC’s Rome Statute.

Which politicians are you referring to?

Every prime minister and immigration minister since October 2002 – with the possible exception of Chris Evans – for crimes against humanity, under section 268.12.

The regime of offshore detention does not take them outside the reach of section 268.12.

The Turnbull government announced last month that AFP officers are to be given the power to request the ID of anyone at an Australian airport, without having reasonable grounds to suspect they’re involved in any criminal activity.

Officers can also eject these individuals from the airport. The prime minister stated that “dangerous times” justify such measures.

You’ve spoken out against this new proposal. What do you think the implications of expanding the powers of the AFP in this manner are?

Eroding accepted standards by very small steps is a threat to all of us.

Remember the dictum of Martin Niemöller:

“First they came for the socialists, and I did not speak out — because I was not a socialist.

Then they came for the trade unionists, and I did not speak out —  because I was not a trade unionist.

Then they came for the Jews, and I did not speak out —  because I was not a Jew.

Then they came for me — and there was no one left to speak for me.”

You’ve also raised concerns over the government’s planned National Facial Biometric Matching Capability, which is a system that will allow for the real-time matching of images taken from CCTV footage with all Australian citizens’ identification photos that are stored in various databases around the country.

What do you believe are the dangers of having such an all-pervasive system such as this operating?

It would amount to having plain-clothes policemen in every street, watching out for specific individuals who are of interest to the government for one reason or another.

Every CCTV camera would be capable of identifying every person seen by them. And the fact that you are walking down Collins Street on Friday morning could be linked to all the information government has about you: Medicare information, ticket information, Centrelink information, etc.

In your 2017 book Watching Out, you stated that while the legal system is designed to bring about justice, it doesn’t always do so.

And you argue that an Australian bill of rights would seek to better establish justice in this country, as well as protect Australians against infringements upon their basic rights.

Can you explain how a bill of rights would achieve these outcomes?

It depends on whether it is a statutory or a constitutional bill of rights. But, the essential point about a bill of rights is that it is a parliamentary document that identifies rights, which are generally accepted as fundamentally important to us as human beings.

So, which of these values should not be respected by our parliament?

Recognition and equality before the law

Right to life

Protection from torture and cruel, inhuman or degrading treatment

Freedom from forced work

Freedom of movement

Privacy and reputation

Freedom of thought, conscience, religion and belief

Freedom of expression

Peaceful assembly and freedom of association

It is surprising how many of these uncontroversial rights are infringed by our federal parliament, simply because some people are not regarded as worth protecting.

And lastly, Mr Burnside, you’ve been working at the frontline of a range of human rights issues since the 1990s. And you’ve watched as the policies of successive governments have become increasingly less humane and more restrictive.

How do you see the political climate developing from here in this country? Will Australian governments continue to build bigger walls, or will the public take a stand against this increasingly repressive process?

It depends on whether the parliament continues on its path of small, incremental erosions of our rights, or blunders the way the Trump administration did, when it started taking kids from asylum seekers and putting them in cages, while the parents were returned to their country of origin.

It is very clear that governments can do whatever they want to people who are feared or hated. And it is clear that governments have the power to induce the public to fear and hate a particular group.

Consider how the public at large have been induced to fear and hate Muslims. Consider the parallels with anti-Semitism in Germany in the 1920s to the 1940s.

I hope we will wake up sooner, rather than later. But, a great deal depends on whether the Opposition learns that its job is to oppose, which is not the same as sniping from the sidelines on trifling issues.

Image credit: Barry Jones


Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.

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