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Overview
Australia has tarnished its reputation in the field of human rights, through its support for illegal warfare, its failure to honour international conventions, its refusal to defend its citizens against secret rendition and illegal detention, and its introduction of secretive anti-sedition legislation and draconian anti-terror laws.
In Watching Brief, noted lawyer and human rights advocate Julian Burnside articulates a sensitive and intelligent defence of the rights of asylum-seekers and refugees, and the importance of protecting human rights and maintaining the rule of law. He also explains the foundations of many of the key tenets of civil society, and takes us on a fascinating tour of some of the world’s most famous trials, where the outcome has often turned on prejudice, complacency, chance, or (more promisingly) the tenacity of supporters and the skill of advocates. Julian Burnside also looks at the impact of significant recent cases — including those involving David Hicks, Jack Thomas, and Van Nguyen — on contemporary Australian society.
Watching Brief is a powerful and timely meditation on justice, law, human rights, and ethics, and ultimately on what constitutes a decent human society. It is also an impassioned and eloquent appeal for vigilance in an age of terror — when ‘national security’ is being used as an excuse to trample democratic principles, respect for the law, and human rights.
Product Details
| ISBN-13: | 9781921372360 |
|---|---|
| Publisher: | Scribe Publications Pty Ltd |
| Publication date: | 07/01/2009 |
| Pages: | 320 |
| Product dimensions: | 5.10(w) x 7.70(h) x 1.10(d) |
| Age Range: | 15 - 18 Years |
About the Author
Read an Excerpt
Watching Brief
By Julian Burnside
Scribe Publications Pty Ltd
Copyright © 2007 Julian BurnsideAll rights reserved.
ISBN: 978-1-921753-85-5
CHAPTER 1
School Days
i did not enjoy my school days. this is a pity, because by any standards I received a first-rate education. While not brilliant, I was not a fool. I was a receptive student, eager to please teachers, no matter what their personal foibles and failings (and they covered the full range of human shortcomings). I was a late developer, which probably made me seem less promising material than they would have wished.
The problem was that, from first to last, a lot of it seemed pointless. Although I'd been lucky enough to be sent to Melbourne Grammar, nothing I learned seemed to connect with any part of the real world as I understood it or could imagine it. No one, to my recollection, did anything much to help bridge the gap between lessons and life — not even in Biology classes, which were full of all mitochondria and frogs and cereal grains. I never managed to put that learning to use; nor the Hittites and Sumerians I read about in Ancient History.
Heading the list of unnecessary subjects was Maths. It was the only subject in which I needed remedial tutoring, if I was to escape the ignominy of failing. Maths and I decided to part company without recrimination in Year Ten, and it did not seem too soon, if a more bitter divorce was to be avoided. It was not until my second year of university, when I stumbled across the wonderful Martin Gardner's column in Scientific American, that I met up with Maths again, and discovered that we had a lot in common after all. We are now friends, but childless.
My memories of school days are mostly bleak, although I must surely have enjoyed myself enough of the time if I did not go mad. The teachers were a predictable mix for an expensive private school: former Melbourne Grammar students themselves, many of them, and Melbourne University graduates. Some had been chosen for their excellent academic qualifications; some for their hero-status as noted sportsmen with adequate degrees; some were there to maintain their isolation from the real world. A couple had never, it seems, broken away from the tightly bound world the school represented and tried to perpetuate — Goodbye Mr Chips and The Browning Version with an Austbridge accent. All of them were good teachers; some of them, brilliant.
One of them had a disconcerting habit, as he paced between the desks, of approaching from behind first stroking, then clenching, our adolescent thighs. I found this puzzling and also slightly painful. He took me to my first Shakespeare play. Although I was neither offended nor interested when he stroked my leg for longer than could be explained, he still marked my papers fairly and without reprisal. He was a cultivated, harmless man, trapped inside a web of curious obsessions — shoelaces, pronunciation, schoolboys' legs. If he were alive today and teaching, he would be torn limb-from-limb by the tabloid press. I am glad his peccadillos were never found out: exposure would have destroyed him. As it is, he lived with his mother, taught generations of students, fondled vast numbers of puzzled schoolboys' legs, and never, so far as I know, did anything more. He was, above all, a fine teacher.
Another teacher was the unwitting vehicle for a lesson that haunted me for a long time. He seemed extraordinarily ancient, his voice croaked from the creased parchment of a withered face as he tried to induce the idea of algebra in us. His classroom had tables rather than desks. Each table accommodated two students. Underneath, the table-legs were braced together by a cross-bar which was about 15 centimetres above the floor. By placing your feet under the cross-bar and lifting slightly, it was easy to make the table lift a couple of centimetres. When the whole class did this, it gave the impression that the classroom was floating drunkenly. It seemed like harmless fun until it provoked in the teacher some kind of seizure. The lesson ended abruptly, and we did not see him again for a long time. It later emerged that he was due to go on long-service leave and was just plain sick of us on his last day. But for months I thought I had personally, individually caused his death. I was in a state of anguish, unable to confess my crime or investigate its consequences.
In the way of driven misfits and late developers, I discovered only in my last couple of years at school that I was not the plodder that I, and popular opinion, had always assumed. My self-esteem, minimal at best, was briefly improved when I won five prizes and two scholarships in my matriculation year. It was a day of great happiness, but was irretrievably marred when sport intruded.
My relationship with sport had always been uneasy. The school held some sports in high esteem. In those days at Melbourne Grammar three sports ruled: football, cricket, and rowing. To be good in any of those sports was a passport to popularity, to excel at them was to achieve the status of an Olympian god. Unfortunately I was always attracted to 'lesser sports'. A born contrarian perhaps, but not wilful. I was a strong swimmer and an accomplished diver. I had been a school champion in both sports for years, and played rugby in the first fifteen.
On my last day at school, when the glittering prizes were being strewn among the chosen, I was awarded colours in each of my sports. But I was awarded only second colours, because they were only second-colour sports. I still remember the stinging injustice of it, that a good footballer received the ultimate accolade of first colours for playing a season for the school; yet after representing the school for years as a swimmer, and in diving and rugby, I got second best.
If I were to speculate on the origin of my concern about justice, I would settle for that day. Even though it has faded in vividness, and has ceased to hold any fear or pain for me, I still think of it with a clinical detachment and recognise that trivial events can have long consequences.
Today, I imagine, Melbourne Grammar sees all sports as equal (although I expect that football, cricket, and rowing are still more equal than others).
It was not all bad, of course. Unbalanced and pointless as it seemed at the time, it was not all bad. The easy-going, good nature of some popular teachers has faded in memory, but paradoxically the goodness of some unpopular teachers is still vivid. In my matriculation year, I was forced to choose between French and Art, because they occupied the same slot in the timetable. The theory appears to have been that Art was a face-saver for dumb students from rich families; languages were for smart kids who did not want to be doctors. I did not want to be a doctor, I did want to continue with French, but I very much wanted to continue with Art. I was interested in language, and Art seemed to me another language, with a vocabulary that reached corners of experience where spoken language could not go.
I chose Art, and studied French on the side without going to the lessons. Art was taught in an old, ramshackle building set apart from all the old, distinguished buildings in the school, perhaps to ensure that the bohemian spirit which it cultivated (albeit a very Melbourne Club style of bohemianism) might not infect the rest of the school. In my junior school days, I had not noticed what an astonishing privilege it was to be taught by John Brack. But by the time I was in senior school, I was ready to enjoy the idiosyncratic teaching style of Ronald Millar. He had the gift of a quirky mind and a mordant wit, and much less sense of decorum than was the norm in that school at that time.
By contrast with other classes, Art had an edge that seemed almost dangerous. There, I learned that other ways of being were possible; I came across exotic words like bourgeois and orthodoxy, and I learned that some people succeed, not by strictly adhering to the rules, but by replacing or reshaping them. In short, I learned the interesting idea that it was possible to question the existing order. Such a thing was unthinkable in other classes, or at home. There was nothing subversive about this: simply the freedom to explore other ways of seeing the world. With hindsight, it was all fairly mild; but it was liberating for some of us as we struggled to escape the larval stage of complacent and uniform lives. Even so, it would be a long time before I tried to put the idea into practice.
My German teacher was one of the least popular men at the school, and one of the finest people I have ever met. He was mocked by many students, and disliked for his rigid approach to punctuality and discipline. He never played it for laughs. Because I was not attending the French lessons, he offered to set me exercises in French and mark them so as to give me a fighting chance of passing. Each week he spent his own time helping me in a subject that, officially, I was not studying. Ultimately he had me translating directly from German to French, and from French to German, without going through English. It was the most intellectually stimulating time in my school career. I was rewarded by distinctions in both German and French. The results were entirely due to his selfless efforts.
It struck me then, as it does now, that a teacher willing to make such an effort should have been better appreciated. In the callous, careless way of schoolboys, I forgot to thank him until I met him again years later. I only wish he were able to understand now how much I appreciated — and still appreciate — the care he showed. When his wife died, some years later, in a dreadful airline accident in Europe, I thought again of the terrible injustice of things. He was a fine man and a fine teacher. He deserved better fortune.
It is now almost 40 years since I left Melbourne Grammar. I have never doubted the quality of the education it provided or the dedication of the teachers (actually, we called them 'masters'). Today it is a school of the twenty-first century; in the 1950s and 1960s it seemed barely to have escaped the nineteenth century. It was a school dominated by the Establishment, a school in which we seemed to be little replacement industrialists and professionals in the making, rather than individual students struggling with our own tiny demons. (Not so tiny in some cases: a boy in my class hanged himself. It was rumoured that he had, implausibly, got a girl pregnant. His death was a profound shock for those of us who knew him, but was seen in the school as shameful, a deformity to be covered over.)
I rarely think about my school days, because my 12 years there are shadowed over by the main lesson I learned behind its frowning battlements. As other students took on the trademark confidence of the place, my own self-doubts hardened into a certainty that I would never be quite adequate, that I was second-rate. A sense of inadequacy seems closely correlated with a driving desire to achieve. I do not know which comes first. I do know that it blinded me to richer possibilities that were available. I enjoyed the company of my friends, but paid too little attention to the art of friendship. I did not notice that symptoms of inadequacy can be diagnosed as arrogance or indifference.
I have been back to Melbourne Grammar just once since my school days ended. The demons are gone. The clock in the Witherby tower still tolls the hours, and conjures proud images of a colonial past in the outer reaches of the Empire. A new crop of budding industrialists and professionals walk purposefully from the past to the future. One day they will understand the full measure of what they have been given.
CHAPTER 2The Practice of Law: justice, or just a job?
[March 2004]
most actions have many causes, and the causes of human conduct are generally complex. Putting to one side my own reasons for enrolling in law school, my impression of my contemporaries is that they were motivated largely by an instinct for justice, and to a small but measurable extent by the lure of a large income. Those in whom the desire for money was greater were generally those who already enjoyed its privileges; those who most sought justice had often been stung by its absence.
Even allowing for this range of variation, many of my contemporaries involved themselves in the social justice issues of the time: equal rights for women; the war in Vietnam; inertia selling; bogus auctions; and — great victories behind them — improved carparking for students.
Watching my contemporaries and others over the following decades, a pattern emerged. The focus shifted gradually: as a substantial income became more likely, it became more desirable. Soon the impulse for justice was recast as starry-eyed idealism — the naive privilege of youth. Serving the client's needs, no matter how venal, was in the ascendant; attending at the community legal service fell away. One by one we succumbed to takeovers or pleading summonses, disputes about wills or tax, broken limbs, and broken promises. Since betrayal and cynicism were so much a part of daily work, betrayal of earlier ideals seemed almost natural.
Nevertheless, I share with Tom Stoppard the view that we are all born with an instinct for justice. In Professional Foul, one of his characters tells of the child who cries 'It's not fair' in the playground and thus gives voice to 'an impulse which precedes utterance'. Our perception of justice may be blunted by exposure to its processes. At the start of a career as a law student, we see law and justice as synonymous; later we fall into cynicism or despair as clients complain that law and justice seem unrelated. We might remember the observation of Bismarck, in a different context, that 'He who likes sausages or law should not see them in the making.'
It is little wonder that our early ideals are swamped by realities that would never have attracted us to Legal Process 101.
EARLY DAYS
The contest between idealism and venality need not end in a snarling standoff. An honourable compromise is always possible. For me, the secret lies in an observation made by Sir John Young, who was chief justice of Victoria when I was admitted to practice. In his welcome speech to newly admitted practitioners, he said something I have remembered ever since, partly because of its force, and partly because I heard it again every time I appeared to move someone's admission to practice. He urged us to remember that, 'In a solicitor's office, and in a barrister's chambers, every matter is important to someone.' I was encouraged when I heard those words because my entry into the practice of law had been accidental, and the signs were not auspicious. I did not expect to be favoured with cases of importance.
Sir Ninian Stephen was part of the chain of accidents that led me to go to the Bar. In my final moot, Sir Alistair Adam presided, with Mr Justice Stephen (then of the Supreme Court of Victoria), and the moot master, Mr Bill Charles. Justice Stephen was leaning back with a characteristically contemplative look on his face, and rolling his chair back and forth on its easy castors. Suddenly he disappeared, only to reappear a moment later at the bottom of the steps that gave access from the well of the court to the bench. To say that this was disconcerting for a budding advocate does not fully capture the moment. Once he had regained his proper position and his composure, I made a distinctly undergraduate observation about 'what had fallen from the Bench', and resumed my argument. I was heartened by the incident because I thought it showed something of the human fallibility of judges.
Later, I had some luck in intervarsity mooting, and it was suggested that I should go to the Bar. The person who made the suggestion was a Very Important Person. I was flattered to receive the advice and, for want of any better ideas, I agreed. In this way, advice from a stranger, in a conversation which occupied no more than thirty seconds, fundamentally changed the direction of my career.
(Continues...)
Excerpted from Watching Brief by Julian Burnside. Copyright © 2007 Julian Burnside. Excerpted by permission of Scribe Publications Pty Ltd.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents
Preface,Part I Foundations,
1 School Days,
2 The Practice of Law: justice, or just a job?,
Part II Asylum-seekers in Australia,
Introduction,
3 Authoritarianism in the Name of Freedom,
4 Towards a Just Society: beyond the spin,
5 Australia's Crimes Against Humanity: not 'interesting',
6 The Pacific Solution,
7 Tony Abbott: master of the soft sell,
8 Honesty Matters: the ethics of daily life,
9 Australia's Refugee Policy,
Part III Human Rights in an Age of Terror,
Introduction,
10 Terror, Old and New: from the Gunpowder Plot to Guantánamo,
11 Human Rights and International Law,
12 Protecting Rights in a Climate of Fear,
13 David Hicks: hearsay and coercion,
14 The Argument for a Bill of Rights,
15 Habeas Corpus,
16 The Dreyfus Affair,
17 Anti-Terror Laws: controlling Jack Thomas,
18 Howard's 'Fair Go' Australia,
Part IV Justice and Injustice,
Introduction,
19 Access to Justice,
20 Van Nguyen: Australia and the death penalty,
21 The Roger Casement Case,
22 The Leopold and Loeb Case,
23 The Oscar Slater Case,
24 The Adolf Beck Case,
25 The Stefan Kiszko Case,
26 The Burning Car Case,
27 The Scottsboro Boys Case,
28 The Dred Scott Case,
29 The Crippen Case,
30 The Alma Rattenbury Case,
31 The 'Black Book' Case,
Appendixes,
I. Article 5 of the Constitution of Nauru: protection of personal liberty,
II. Sections 198B and 494B of Australia's Migration Act,
III. The Third Geneva Convention relative to the Treatment of Prisoners of War 1949,
Notes,
Acknowledgments,