On 10 May, the Secretary of the Commonwealth Attorney-General’s Department, Robert Cornall, gave a now infamous speech at the Security in Government conference in Canberra. He began by quoting historian Geoffrey Blainey:
Our present circumstances do not exist in a vacuum. They are part of an incomplete continuum that started some time in the past. If we can analyse and understand the progression that brought us to where we are now, we will have an idea where we could be going in the future.
Curiously, Mr Cornall was using this unremarkable premise of Blainey’s as a foreground to promote the Australian Government’s ‘strategic approach to national security’. In the speech Cornall identified a number of strategic areas as now deserving special consideration to protect Australians against terrorism: developing new technology; examining individual and community rights; reviewing some of our attitudes to crime and punishment; stopping terrorism at its source and ‘keeping our chins up and things in perspective’.
Thanks to Fiona Katauskas
The inclusion of individual and ‘community’ rights is an interesting one given this government is not known for its serious consideration of human rights “ unless it involves attacking an adverse finding by an international human rights treaty body then threatening to withdraw from the United Nations human rights system, or further reducing the budget or powers of the Human Rights and Equal Opportunity Commission.
Individual rights underpin the international human rights system. They are based on the premise that all individuals are born free and equal in dignity and rights, without distinction on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The concept of ‘community rights’ is only very occasionally used interchangeably with ‘group rights’, which in turn is more often referred to as ‘collective rights’. Collective rights are premised on the notion that the individual rights of members of some groups “ such as Indigenous peoples “ can only be realised in the context of their collective status.
The reference by the Secretary of the Attorney-General’s Department to ‘community rights’ is surprising, given the Australian Government’s past objections to the use of ‘Indigenous peoples‘ in the collective sense at meetings on the United Nations Draft Declaration on the Rights of Indigenous Peoples.
In explaining his calls for renewed focus on individual and community rights, Cornall sentimentalises 20th century Australia in a manner reminiscent of John Howard’s longing for the 1950s:
In the 20th century, Australia was a very safe country. It was isolated by distance from many of the conflicts in other parts of the world; insulated from political upheaval by its democracy and economic prosperity; and protected from civil unrest by a tolerant society that by and large accepted differences with a mildly amused shrug of the shoulders.
There are a number of disturbing elements to this white armband view of Australian history. The phrase about Australians’ ‘mildly amused shrug of the shoulders’ is the most ominous. Is that the same shrug Queensland Police gave the Wik of Mapoon, forcibly removing them at gunpoint so Comalco could mine bauxite in the 1960s? Or is it the mildly amused shrug that legislated the removal of indigenous children from their families, or the pooling of indigenous wages into trust accounts that were spent on state budget deficits, public roads and hospitals and never returned to those Aboriginal people who worked an honest day for that income? Is it the same mildly amused shrug that killed Daniel Yok and led to a Royal Commission to investigate why Aboriginal men were dying in custody? Or moving into the 21st century, is Cornall talking about the same mildly amused shrug to difference that the SAS gave Afghan asylum seekers when they were ordered to board the MV Tampa after it entered Australian waters, the mildly amused shrug to asylum seekers that has globally defined this government’s attitude to ‘difference’? Cornall’s whitewashing continues:
There was not much need to think about community rights in the 20th century because they were not under any obvious challenge. This allowed individual rights to flourish without regard to the broader setting of community rights. But things are a bit different now. Australia and Australians have been nominated as terrorist targets. We have to ensure that we take all the steps necessary to protect the safety of our community as a whole and, in the process, to protect the rights of individuals within our society.
Cornall’s use of ‘community rights’ is not in the context of human rights law, but as a means to justify the over-riding of human rights in the name of ‘protection’ of the broader community. He skews international human rights principles to justify this, quoting Article 3 of the Universal Declaration of Human Rights “ ‘Everyone has the right to life, liberty and security of person’ – simply because it uses the word ‘security’. Cornall rather confusedly argues that, ‘Our individual rights have to sit comfortably with this overriding human right to which every one in our community is entitled.’
The fact that the individual right to life, liberty and security has to sit comfortably with other individual rights is not novel to human rights and it is not novel to the Australian legal system. In an odd rewriting of international law, this analysis also places the right to ‘life, liberty and security’ at the apex of what was not intended to be a rights hierarchy.
But Cornall is at his most extraordinary when explaining the exigency of derogating individual rights in favour of the amorphous though convenient ‘community rights’. In facing down the threat of terrorism he states that the following is ‘the sort of choice we will have to make’:
Do we, as a society, want to require lawyers to obtain a security clearance so classified information can be put in evidence and an alleged terrorist can be properly tried in accordance with all of the protections that our criminal justice system offers?
Or would we prefer that charges not be brought at all “ and the alleged terrorists go free “ because we have no way to protect classified information in the court room?
So there we have it, Australians all, only two choices in fighting terrorism. If you agree with security clearances for lawyers then you, as a good Australian, want any alleged terrorists to be properly tried. Alternatively if you take issue with security clearances for lawyers, there is no room for nuance or argument: it unequivocally equates to preferring that ‘charges not be brought at all’ and desiring that ‘alleged terrorists go free’. There is a striking similarity between Mr Cornall’s histrionics and The Australian columnist Janet Albrechtsen’s approach: ‘You can be for the truth or with the terrorists’. It is also strikingly similar to Powerpuff cartoons. This polarised characterisation of the issues is a means of silencing dissent and an age-old tactic of both totalitarian (evil) and liberal democratic (good) governments.
To employ Cornall’s ‘rent a quote to fit the argument’ approach to Geoff Blainey’s rather obvious statement about the value of history, human rights too did not develop in a vacuum. With its genesis in the tragedies of World War II, the international human rights system developed to prevent the use of state sovereignty as a shield behind which rights may be derogated and abused for the ‘good of the nation’. After all, the propaganda and atrocities committed against the Jewish people of Germany were justified as being for the good of the rest of the German community.
‘National security’ seems to have become shorthand for: ‘trust us, we’re acting in your interests’. And if one’s faith in politicians isn’t enough to stifle debate, it’s always good to have a back-up such as a quote from a former legal counsel to Nelson Mandela to silence the naysayers. Ruddock has been quoting the Canadian civil rights lawyer since the controversy of Cornall’s paper has taken off. This is reminiscent of ‘I tell Aboriginal jokes but my best friend is an Aboriginal’ logic. Thus, if one does not agree with security clearances for lawyers, then not only is one ‘for’ the terrorists and against the truth, but also in resistance of a prominent civil rights lawyer and therefore presumably in favour of apartheid as well.
Addressing Australia’s new security concerns is about co-operation, transparency and alliances. It cannot be about arbitrary and ad hoc impingement by the most powerful upon areas of law that were set up to protect citizens from that very thing. It cannot be about unilateral statements of changes in human rights policy that add up to the very intellectual inconsistency that Cornell alleges the debate has been marred by. Indeed the recent concluding observations of the Committee on the Elimination of Racial Discrimination (CERD) noted with concern that prejudice against Arabs and Muslims in Australia has increased and that the enforcement of counter-terrorism legislation may have an indirect discriminatory effect against Arab and Muslim Australians.
The final unsavoury aspect of the speech relates to emergency response teams and Cornall’s analysis of the aftermath of the Madrid bombing. After clinically examining the emergency response strategy, Cornall stated that ‘the city of Madrid had returned to normal operation and the citizens of the city were getting on with their lives in less than twenty four hours’. This is a spectacular rewriting of history. Cornall’s clinical admiration of the emergency response conceals a glaring omission, namely that the Spanish people then proceeded to vote out their government in the belief that their involvement in Iraq made them a bigger terrorist threat. How conveniently Cornall forgets the controversy of Alexander Downer criticising the citizens of democratic Spain for encouraging terrorism in exercising their democratic franchise at the ballot box. Sure, the emergency response was swift and effective, influenced no doubt by the constant threat posed by ETA, and certainly Australians also expect an efficient emergency response team “ but the Spanish people continue to live with the scars of Madrid and this type of abstract, detached analysis is what alienates people from security experts.
But let us end on a good note. Cornall beseeches all Australians to ‘keep our chins up and things in perspective’; his caveat being that like the Cold War, the threat of terrorism will be around for some time. Cornall, being concerned about our emotional welfare in these times of terror says that Australians ‘can’t let the threat of terrorism overtake our lives or prevent us enjoying all the benefits of living in a prosperous and liberal democracy’.
Given CERD’s recent comments, the ‘we’ presumably does not refer to Arab and Muslim Australians and to hazard a guess, it probably does not include any of us who question the government’s erosion of our human rights in the name of national security and the ‘war on terror’. Nevertheless, Cornall shouldn’t lose sleep worrying that we are worrying about terrorism. Australians need little encouragement in ‘keeping our chins up’ and enjoying the benefits of living in a prosperous and liberal democracy. Did Cornall not see the warm and fuzzy footage of young Aussie pilgrims in Gallipoli? Young, carefree, drunk, vomiting and sleeping on the graves of diggers “ a scene that melted the heart of all true jingoists the morning after ANZAC day “ as it did the Prime Minister who celebrated the excesses of these young neo-ANZACs as reminiscent of the Sydney harbour foreshore after New Years Eve. It is quite clear that most Aussies are not letting the threat of terrorism overtake their lives. Besides we have new tax cuts and interest rates remain low. That’s what really matters to people in prosperous liberal democracies. Otherwise rights might actually matter.
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