Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The previous debate reminds me there are some things I may not miss about this place! In this last MPI opportunity before me, I want to discuss an issue of human rights that has been dear to the hearts of Australian Democrats. Before I do, I want to place on record, and commemorate in this place, a dear Democrat who died last month, Roger Stapledon. He was one of our founding members and was one of the key members responsible for my preselection and entry into this place. He was a founding member of both the liberal movement and indeed the Australian Democrats. He was a grassroots member but at times held positions of office, including as state president. He was a visionary. He was a good, kind man, one who will be missed very much in the South Australian Democrats. He and his wife Ann were both generous, hospitable, very supportive and loyal to many of us over the years. I did not want to leave this place without acknowledging his support, his sharp mind and his kind soul.

Mr Acting Deputy President, the issue I want to address today in more detail is that of Guantanamo Bay. I think you would understand that Democrats at this time are using this period for reflection on and for contemplating some of the events with which we have been most closely associated or the events which have defined our time in this place. One event that I think has left an indelible stain on our recent history has been the detention of, among others, two Australian citizens, Mamdouh Habib and David Hicks, at the US naval base at Guantanamo Bay in Cuba. For a long time the Democrats were almost pretty much alone in our condemnation of the treatment of detainees at Guantanamo Bay. We made speeches, spoke at rallies, brought up issues in parliament and moved motions, and in many respects we were a key part of the campaign to repatriate the South Australian, David Hicks.

Our concern was not about the individual per se. It was always about the fact that the rule of law should prevail. No state, regardless of its military might, should be above the law. So it was with some interest—I am not sure if satisfaction is quite the right word—that we viewed last week’s US Supreme Court decision with its landmark ruling delivered in the case of Boumediene v Bush. For the third, and hopefully final, time, the court struck down the military commission regime that the Bush administration had so steadfastly defended, at times with what I consider to be undignified complicity by the former Australian government. Around 270 detainees remain in Gitmo today. More than a fifth are apparently cleared for release but may have to wait months or even years because the US is finding it increasingly difficult to persuade countries to accept them. David Hicks remains the only detainee to have been prosecuted successfully. He may well be the last.

The US Military Commissions Act was one of the final legislative enactments of the Republican-controlled Congress in October 2006. As we know, the act expressly suspended habeas corpus rights for detainees at Gitmo, meaning of course that the detainees had no legal avenue by which to challenge the conditions of their detention, which for some represents more than six years of incarceration without access to the courts. The decision of the US Supreme Court to declare that act invalid, again, dismissed the dual fictions maintained by the Bush administration to justify the different rules at Guantanamo Bay: that the facility exists on Cuban soil and is not US sovereign territory, and that ‘enemy combatants’, as opposed to detainees, are beyond the reach of US civil courts or even the traditional military courts marshal regime—dual fictions to which the previous Australian government and other governments have subscribed. In a commonsense ruling, the US Supreme Court said that the rights protected by the US Constitution ‘cannot be contracted away’ and acknowledged that the Guantanamo Bay site was carefully chosen precisely because it was not US territory in a bid to avoid the usual legal restraints on actions of the executive.

With a US election in the wind—and I note that Senator Moore made reference as well to the fact that there is an upcoming US election—both the Democrat and Republican parties’ presidential candidates, Barack Obama and John McCain, have vowed to actually close Guantanamo Bay. I note, however, that the US President, George W Bush, said he strongly disagreed with the Supreme Court decision and he would actually consider or examine new legislation that would keep detainees locked up at Gitmo.

I understand why this Australian government would have its eyes on the next administration, but the US administration is still the Bush administration. The Australian government should, at this point, be doing everything in its powers to urge its closest ally to bring Guantanamo Bay to an end. As the Dalai Lama remarked recently, and some of you may have seen one of his interviews where he said: ‘There is an old Chinese saying that real friends can be very frank. If you just ignore your friend’s fault, you are not a good friend.’ Using His Holiness’s words and example, it would be appropriate for our government to say in the strongest diplomatic terms that Australia can no longer stand by and see this particular detention facility and such abrogation of human rights, conditions and, arguably, law. We cannot allow that to be maintained any longer.

We can view the machinations in the US justice system and US politics of course with a degree of removal in this country, but, looking back and reflecting on some of the changes that we have made to our own legal system, particularly post September 11 but over the last few years, can we say with certainty that we have not damaged, undermined or eroded some of those key principles, those key civil libertarian principles and principles of freedom in our own system? I do not think that we can say that; I think there is clear evidence of where we have passed regressive measures that have impacted on our own system and the human rights of our citizens.

By placing Guantanamo Bay on Cuban soil and attempting to oust the jurisdiction of the courts, the tactics of the Bush administration do bear a resemblance and similarity to the tactics that have been used in this country, particularly in the case of asylum seekers. We would all recall very clearly the migration legislation with which this chamber dealt back in 2001 which sought to, and successfully did, excise certain parts of Australia and Australian islands for the purposes of migration law. The fact that the Rudd government claims to have dismantled the policy of the Pacific solution while maintaining aspects of this policy in relation to Christmas Island makes me question this government’s attitude to the rule of law and issues pertaining to human rights as well. The fact remains that the excision of these areas combined with of course Australia’s policy of mandatory detention of asylum seekers means that people held in detention do not have recourse to Australian courts.

If the US Supreme Court can see fit to extend habeas corpus rights to those suspected of some of the most heinous crimes, surely the same rights should be extended to those people fleeing persecution and searching for a better way of life in our country. Sadly, without constitutional or indeed legislative protection of such fundamental human rights in Australia, asylum seekers in excised migration zones cannot rely on the High Court to step in and say that the executive has indeed overstepped its mark.

Tim McCormack, the Australian Red Cross professor of international humanitarian law at the Melbourne Law School, who was an adviser to Major Mori in the proceedings of the US military commission against David Hicks, said that the central issue in the US Supreme Court ruling on Gitmo:

...involves the separation of powers—the demarcation of the limits of executive authority in responding to terrorism.

Like the case of Guantanamo Bay, I think the Democrats have often, in this place, been sole or lone voices of dissension when it comes to how this government or former governments have responded to the threat of terrorism. We have urged restraint, we have spoken out in favour of maintaining fundamental human rights and we have opposed the control order and the preventative detention regimes, which essentially, let’s face it, allow for detention at the behest of the executive—something that I think is a very perilous, very dangerous path down which to head. This, combined with revelations only this week that the Prime Minister’s office was closely involved in the prosecution against Dr Mohamed Haneef, suggests that, like the US, the separation of powers between the courts and the executive in Australia has, in some respects, become blurred in our response to the war on terror.

The Democrats like to think of course that we have been the voices of reason in this debate. It is something that has characterised us throughout our history, having to reconcile what some people would describe as our progressive beliefs on a range of social justice and other issues with a very strong civil libertarian bent. It is something that many of us feel that we inherited—for lack of a better word—from Chipp; we are ‘chips off that old block’. That sense of maintaining or recognising individual freedoms, I understand, is a balance. I note that Senator Mason is in the chamber. He has very strong views on privacy, many of which I share, but I understand it is not a fundamental concept in its own right. There has to be balance between the national interest and the needs of the community, and balanced of course with the needs of the individual and the citizen. I am not convinced we have got the balance right. I think we have gone too far in one direction and that is something I am sure will be left to many of you to review over the years ahead. Let us face it, more than 42 pieces of legislation—at last count anyway—have been passed post September 11. Of course, in many circumstances, there are very good reasons to analyse or revisit past laws that seek to protect us and protect our country, our national interest and individuals. But I think it is time for a parliamentary and/or independent review of such a large slab of changes to law. We do want a comprehensive review of anti-terrorism legislation and I urge those of you who remain after 1 July to consider that; there is a lot to be done.

Sadly, despite some policy changes in relation to human rights that have been undertaken by this government, this is one call that has remained unanswered. Senator Obama in the US has said that Guantanamo Bay and the decision of the US Supreme Court on Guantanamo Bay was an important step in re-establishing the credibility of the United States as a nation committed to the rule of law and ensures:

...that we can protect our nation and bring terrorists to justice while also protecting our core values.

I only hope that, even with the departure of the Australian Democrats, there will be room for such conviction politics in Australian politics and in this place after 1 July 2008. I have no doubt that there are many and varied views on some of these issues, but at some point I think we need to re-establish, reconsider and hopefully restore that balance to which I referred.