Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

The address-in-reply to the budget gives members a unique opportunity to speak at large on issues of public governance in this country and it can be and often is a chance to be reflective about the more significant values that underpin our democracy. Today I want to use that opportunity to reflect on what has increasingly become lip-service to one of the key underlying principles of our democracy, and that is the rule of law.

Some little while ago it would have been quite unquestioned that, were an Australian to be held without trial by a foreign government without charge and, were charges to be preferred, to be put to his ordeal through a process which does not meet benchmark standards of justice, the Australian government would be speaking on behalf of the detained Australian. Today we have to face up to the reality that, notwithstanding the expressed concerns of the special reporter appointed by the Law Council of Australia and the concern expressed by the International Commission of Jurists and many prominent Australian lawyers, the Australian government remains mute or even supportive in the face of the continuing detention of David Hicks under exactly those circumstances.

Why does this matter? It matters because one of the things that we have always been able to assert that distinguishes us from totalitarian regimes is that, in the Western democratic environment, respect for the rule of law is basic—not an optional extra but something fundamental which not only citizens but any person who becomes subject to the jurisdiction of one of our governments can take for granted.

It is an underpinning that has been placed under stress on a large number of occasions. The present security environment is not the first time that Western societies have been tested in terms of their commitment to the rule of law. I refer to World War I, World War II, the Cold War, the Vietnam War and various other instances that have occurred where governments have had to deal with internal dissent, external provocation and even some instances of real violence directed against state institutions or against innocent civilians. We should not pretend to be naive. Australia has been the target of acts of terrorism—not in the recent past, where my concern now arises, but in the not so remote past. Who can forget, for example, the Hilton bombings and various other instances that occurred in the decades of my relative youth, where Australia was tested and yet remained firmly committed to the fundamental principle that the rule of law would be preserved and would prevail?

In our response to the horrors and terrors of World War II, Australia, as part of the international community, took a leading role in establishing normative standards that we have spoken up for from the time that we survived those horrors to the present. We still speak up for them, but, as I say, I think increasingly we pay them lip service. Take, for example, the objection to torture. The objection to torture and cruel and degrading punishment ought to be fundamental in any society that respects the rule of law. When the show trials of Stalin took place, it was the event which led some of the more perceptive supporters of state socialism of the Stalinist variety to allow the scales to fall away from their eyes and to see that regime truly as it was—that is, a regime which was founded on authoritarianism far more than it was on the principles that it espoused.

We knew that those who were confessing to crimes in the Stalin show trials had suffered extreme deprivation—sensory deprivation, sometimes actual physical torture. Some had died as a result of that infliction of torture. We distinguished ourselves entirely from a society that could act in that way and said, ‘We repudiate that entirely.’ Yet we know that exactly such conduct has been perpetrated by our principal ally in the so-called war against terror in its response in Afghanistan and in Iraq. And we remain relatively mute in terms of our condemnation of those processes.

We have seen the events of Abu Ghraib, and we might say that those particular extremes were not authorised, although others who were less charitably disposed might say that there was too close to a nod and a wink regarding the use of extreme means to obtain information. But how do we explain, for example, the recently reported statements that the Pentagon is considering removing the key Geneva convention protection, the ban against degrading and humiliating treatment, from its army field guide? How do we explain that?

The Australian government needs to answer whether there is any such Australian proposal. Are we looking at taking a similar step? I doubt it. I think that our Australian defence forces have much higher regard for the rule of law and for the international conventions that we have signed up to and adhere to. But if you remove the ban on degrading and humiliating treatment and restrict torture to the narrow events that were described in advice to the President—that is, the application of physical force to such a degree that would create the possibility of major organ failure—you permit physical violence, you permit the kind of hoodings, sensory deprivation and exposure to noise and to various degrading and demeaning events which may relate to sexuality, of the kind that we saw in Abu Ghraib.

If we had known that such events were occurring in the Stalinist Soviet Union, we would have been outraged; we would have been speaking up and saying that a society that is prepared to condone that is intolerable. We cannot continue to operate as if our normative underpinnings simply do not matter very much when they are put to the test, because one of the things that has allowed us to hang together is the knowledge that even if we oppose our governments, even if we disagree with them, even if we act against them and even if we rebel, we are entitled to be treated as persons with dignity, to be treated with respect and to be treated in accordance with existing legal regimes. That in itself has been a significant component of our national solidarity as to why we do hang together, why we do not suffer extremism and why we have not experienced the kind of disintegration that those who would prefer other sets of values to prevail would impose upon us.

If we are in a fight, it is a fight of values. Let us not for a moment believe that even the most determined terrorist, however well resourced and however effective, will bring undone the functioning of the national state. It will not happen. We have the capacity to deal with terrorism and to restrict its impact. We should always resource our security agencies to make certain that any foreseeable act of terrorism is prevented. We should never cease to be on guard but we should not believe that the fundamental structure of a democratic, strong society will be undone by one, two or many acts of terrorism on our shores. We have survived it in the past. They have occurred and they did not undo the fabric of our society. We can survive it in the future. What we cannot survive is any belief amongst this now multicultural and multifaith society of ours, with persons of many different backgrounds, that we are prepared to sacrifice the rule of law for political expediency.

We cannot survive that, because it underpins the things that hold us together, the glue that sticks us together. It is the glue that Churchill understood stuck together the British Commonwealth as it faced up to Nazi Germany. It is the glue that the citizens of the United States know underpins their great democracy. Remember the words on the Statue of Liberty by Benjamin Franklin: ‘Those who would give up even a little of their liberty for some temporary safety deserve neither their liberty nor safety.’ That sounds like a very hard judgment to make. I do not make it of my fellow Australians, but we have given up some of our liberties. We have been tested and we have walked back from some of our fundamental propositions that we have said matter to us as citizens of this great country.

It is no surprise that on this issue former Prime Minister Fraser speaks bluntly for the values that he sees and recognises we have walked back from. Former Prime Minister Fraser has been at the forefront of those who have said that the way in which Australia has failed to speak up for David Hicks is a blot on us as a nation. Our failure to articulate our criticism of the United States and the proposal to walk away from rules of war which limit those engaged to warlike pursuits, to exercise respect for those captured on the field of battle, whether they be persons captured in civil wars or in uniformed conflicts, do both the United States and our own society an injustice.

We cannot demand it of others if we do not respect it in ourselves. We cannot expect positive outcomes for the values we say we are fighting to leave as our legacy in other countries, or arguing should be respected in other countries, if we show that we are half-hearted ourselves and walk away from those underpinning values whenever we are tested.

There are issues that we need to speak out on. Our government should make it plain that it does not support the practice of rendition, which our allies in the war on terror have undertaken—that is, taking persons captured, not necessarily on the battlefield but brought into custody, sometimes through the payment of money, taken in secret to third-country locations where torture is not prohibited and subjected to that torture in order to obtain intelligence in a manner that would be prohibited were it to have been undertaken by the forces that initially held those persons hostage or captive.

We should make plain that just as Amnesty International has repudiated those secret renditions so too does the Australian community, so too does the Australian government. We need in that regard to examine the allegations that have appeared in theMonthly, which state that Hicks has been subjected to rendition, to torture, and has been treated like a lab rat. It is not sufficient to respond, as the Attorney has, that it is not a conventional war and that others are not observing the Geneva convention, with its implication that, if others do not observe the Geneva convention, neither do we need to, nor does our ally the United States.

We are the light on the hill in the international world. An argument of that kind—that, if the Soviet Union exercised cruel and degrading treatment, or the North Vietnamese did so in relation to our captured soldiers in the Vietnam War, it authorised us to take such measures—would have been regarded as offensive. Our military would have regarded it as offensive. Our citizens would have regarded it as offensive. We do not need to stoop to those measures, nor does our great and powerful ally and it needs our help to point that out. We are not acting in a way which is unfriendly to a country with whom our fortunes are entwined to make the obvious point that one of the things that sustains Western democracy is an adherence to a set of values that endures over time, over circumstances and over temporary setbacks.

We owe it not only to our own citizenry but also to future Australians who will be on the field of battle dealing with situations where their lives may be in peril to see that there is no record which anyone can point to and say, ‘We were legitimately treating that captured Australian in this crude and barbaric way because we were merely repeating the conduct that Australia itself had condoned.’ It would be tragic were that so. We need to always act in a way which enables us to take the high moral ground, not only simply for the point of doing so but because it is actually our strongest bulwark in this war against terror. People will stay the course for democracy, for the values we aspire to, provided we live those values, but if we walk away from our own values we lessen them in the eyes of others and we make them doubt the degree to which we hold to them.

These are testing times but no more so than when we made a decision not to ban the Communist Party when it was argued that this nation was in peril. We are under no greater test than in World War II, when we stood side by side with soldiers from Great Britain and the United States to resist Nazi Germany. We are no more imperilled than when we allowed our citizens freedom to express their views as they saw fit during those great postwar years when wars of national liberation were occurring in different parts of the world, which we said needed to be conducted according to universal standards and should not permit torture and the kinds of renditions or shortcuts that are occurring now. Sadly, sometimes that advice was not taken, but we stood above that and tried to argue for it.

Some of my best friends have worked for the International Red Cross, urging, even in those terrible conflicts in the former Yugoslavia, that the rule of law be obeyed. The rule of law is enduring and important, and Australia’s respect for the rule of law cannot be traded lightly. For those who are interested in a more detailed and comprehensive assessment of this, I commend the recent speech by Chief Justice Underwood of the Tasmanian Supreme Court on the rule of law and the duties and responsibilities of those who practise the law. I thank the House for this opportunity to make my rather wide-ranging remarks.

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