Interview with Julian Burnside QC

Julian Burnside - 9 October 2014, The Arts Show

The following program is produced in the studios of 100.7 Highlands FM.

A: Good afternoon listeners and welcome to The Arts Show on 100.7 Highlands FM. My name’s Alex McCulloch and joining us via phone link is Julian Burnside, Julian welcome to the show.

JB: G’day

A: Could you explain in clear-speak how you would best define an asylum seeker?

JB: Okay. An asylum seeker, basically is just a person who comes to another country and asks for protection. They say, “I’m a refugee, please protect me.” And, if they are then assessed as being a refugee, then they are a refugee and they were all along. But an asylum seeker is just someone who is claiming refugee status.

A: Now, how would you say that your definition varies most from the average person’s perception of an asylum seeker?

JB: (Laughs) I think everyone should think it that way, cause that’s the fact of it, but umm… I think over the last 13-years, repeated criticism and marginalism of asylum seekers has led a lot of people to think that they are dangerous criminals. You know, in 2001, when the Tampa episode happened the Howard government, for purely party political reasons, took a strong stand, started calling boat people illegals and that has kept up pretty constantly since then so that in the public mind, boat people and illegals seem to be permanently linked. And that creates the impression that asylum seekers are criminals. And it’s false, it’s just simply a lie. They do not break any law by coming to Australia and asking for protection.

A: Now, why is the average Australian being encouraged by some politicians to see asylum seekers as cheats attempting to, kind of, jump the queue into our country?

JB: Yeah, the queue, the mythical queue. Well we should talk about the queue thing later but to answer your question directly, I think it’s been a series of accidents. It started as I say at the time of Tampa - Tampa was late August 2001. At that time, the Liberal party was losing members to Pauline Hanson’s One Nation, especially in the Western Suburbs of Sydney, which is a pretty important political area. The stand taken by John Howard was explicitly calculated to attract people back to the Liberals from One Nation and the … and so he started calling them illegals, he took a strong stand in relation to the Tampa and he started calling them illegals, he started calling them queue jumpers. He later accused one group of them of throwing their children overboard, which was later… turned out to be untrue. Now, unfortunately for asylum seekers, very soon after the Tampa episode September 11 happened. And, as a result of that the Labour party, I think, was a bit spooked because at that time - given the way things were happening in Iran, Iraq and Afghanistan - most, but not all, most boat people coming to Australia seeking protection were Muslim. After September 11 in the public mind, as spun by the politicians, every Muslim was a terrorist and every boat person was a Muslim. Therefore, they were all terrorists, therefore you bagged them as illegals, queue jumpers. And Beasley, I think, was a little bit spooked, I think he was a bit frightened to say anything that might sound as though he was supportive of any Muslims anywhere for any reason at all. In addition I think the Labour party doesn’t have a… much of a track record of being friendly to refugees because they regard anyone coming from overseas as someone who will take Australian jobs. So those two factors together, in my opinion, caused Labour to go very quiet in the face of Howard’s illegals, queue jumpers rhetoric. And by the time of the election at the end of 2001 both major political parties were sort of locked in on the rhetoric of illegals and queue jumpers. And since then, the fact is that the Liberals have kept on saying it, abour have never used their authority, their political authority, to call it out as false and so the myth continues. And it got worse after the last election in 2013, it got worse because when Scott Morrison became Minister of Immigration he had been one of the chief flag-wavers for the illegals tag and he renamed the Department of Immigration and Citizenship to the Department of Immigration and Border Protection. Now when you think about it the word ‘protection’ necessarily implies some sort of threat. And if you’ve been calling boat people illegals for more than a decade and if you then imply that they are a threat to the country and you start jailing them in overseas countries - Manus Island and Nauru - then naturally the public will think these people are dangerous criminals, the government’s protecting us from them, that’s a good thing. If most Australians understood the truth and understood that asylum seekers don’t break any law at all by coming here, they’re mostly very frightened people escaping the same extremists who ought to worry us. And they’re brave enough to risk their lives at sea in order to get here. Now, if people understood that I suspect that their response to the government’s mistreatment of asylum seekers might be a bit different.

A: I remember an interview with you back in 2007 where you were cautiously optimistic that with Kevin Rudd coming in that he might be able to do something about the situation. Were you disappointed to see his efforts?

JB: (laughs) Yes, you see the problem is I just don’t understand politics and I’m an optimist. I mean, actually, to his credit Rudd did introduce pretty good reforms in the middle of 2008 when Chris Evan was the immigration minister. They introduced around about 90 per cent of the reforms that a lot of us had been arguing for for some years. Unfortunately that was done at a time when no boat people were coming. About a year or so later, Tony Abbott took over control of the Coalition - he bounced Turnbull out of the way - and immediately starting banging on about boat people and Rudd very quickly changed his tune and started bagging the people smugglers. I think he reckoned it might be a little bit indecent to be directly critical of asylum seekers because the public at large had become to understand that asylum seekers were mostly pretty desperate, tragic people. But he started attacking the people smugglers, which is just a proxy for attacking asylum seekers when you think about it. He must have forgotten in doing that, that his moral hero Dietrich Bonhoeffer, who he’d written about a couple of years earlier, Dietrich Bonhoeffer was also a people smuggler. And of course, Oskar Schindler who we all thought was a pretty reasonable sort of guy when read the book or saw the film, Oskar Schindler was a people smuggler. The fact is that there are some people smugglers who are doing a very fine thing and other people smugglers who are cynical and unpleasant and careless. And bagging them all at the same time was a big mistake on Rudd’s part, I think. Then of course things got worse because at the election last year when Rudd had resumed the leadership of the Labour Party we saw something which is as unprecedented in Australian political life. The September 2013 election was the first time in Australian politics when both political parties, both major parties, have tried to win political favour by promising cruelty to a particular group of human beings. That’s a very frightening thought. You know, if they’d promised cruelty to animals it probably would have lost them support, but imagine the position that Australia has reached where you can win political favour by promising cruelty to a particular group of human beings.

A: Well, I mean, Kevin Rudd was obviously trying to do whatever he was trying to do whatever he could to get back into power at that stage. Why do you think he was so focused on this as a way of winning back Australia’s trust and potentially getting votes and getting back into election, into government?

JB: Well, you’re asking my political opinion, which is worthless, but… my assessment is he was prepared to do whatever it takes to regain or retain power and he thought on the polling that that would work. Unfortunately he was probably right, although it didn’t work for him. I have to say he’s… the fact that he was prepared to be decent to asylum seekers as long a they didn’t come and was prepared to promise cruelty to them when they were coming, frankly makes me regard him with contempt. I think it’s, you know, he showed all sorts of promise as the Prime Minister, but he completely lost me during the last election.

A: Well, he let a lot of us down, I couldn’t agree more. Can Australia afford to harbour political asylum seekers given the global financial situation?

JB: Well, I think the answer is emphatically yes. In order to answer a question like that convincingly though, you really need to look at some of the numbers. We get, every year… we’ve got a population of 23 million, okay. Every year we take around about 200,000 new permanent migrants. That is to say, people who just want to move to another country. We choose the ones who have the sort of skills that we think will be useful, and they come here and they settle here and they become Australian citizens here. Okay, so that’s permanent migrants, they’re not escaping terror, they’re just moving on. The highest number of boat people ever to arrive in Australia was in 2012 and the number was 25,000. Now demographically, I would have thought 25,000 is a pretty easy number to absorb. The ordinary arrival rate of boat people in Australia, you know when there aren’t serious crises happening overseas, the ordinary arrival rate of boat people in Australia runs between one thousand and five thousand people a year, which is a pinprick demographically speaking. So, you know, I think demographically there’s really no problem dealing with them. You raised a particular point about cost and I think it’s worth having a careful look at that. As I say, 25 thousand is the number who arrived in 2012. That was a record, it was a spike in the arrival rate numbers and it’s never been that high before or since. So lets pretend that 25,000 became the new normal, we had 25 thousand people coming every year. Let’s see if there’s another way of dealing with them. One way which I’ve put forward in recent times is that we… when those people come here by boat, sure detainment them initially for preliminary health and security checks, but after one month release them into the community on an interim visa, whilst their asylum claim is processed. On an interim visa with four main conditions. The first condition would be to have to stay in touch with the department because otherwise, obviously some of them might disappear into the community. The second is that they’re allowed to work, just a simple matter of basic human decency.The third is, that they’re allowed access to full Centrelink and Medicare benefits, again a matter of simple human dignity and decency. And the fourth, the crucial one, is that until their refugee status has been decided, they must live in a specified regional town or city, rather than the coastal capitals. Now, since we’re talking about the economics of this, here’s how it works. Let’s pretend 25 thousand a year becomes the new normal, very unlikely, but let’s pretend. And let’s pretend that every single one of them remains on full Centrelink benefits for the whole time, highly unlikely but let’s pretend - highly unlikely because these are very motivated people that are willing to risk their lives at sea in order to escape regimes that have persecuted them. So you’ve got… what does that cost the economy? About 500 million dollars a year, all of which would be spent in the failing economies of regional towns and cities, whose economies are failing because people are leaving, the population is leaving, they’ve got unused housing stock, they’ve got empty shops, all of that. And of course people who are living on Centrelink benefits spend all or most of the benefits on accommodation, food and clothing, okay? So all of that would be spent in the economies of regional towns and cities. So there’s 500 million dollars a year. Is that something that the economy can afford? Well, have a look at how much we spend now mistreating them, delivering the cruelty that both major parties promised. We spend about five billion dollars a year mistreating asylum seekers at the moment. Now, for ten per cent of that amount, we could treat them decently and benefit the economies of regional towns and cities. I would have thought that’s a no brainer.

A: What do you say to the people that say, well there’s the proper channels for coming into the country and they should wait in line, I guess, like anyone else who’s wanting to come to our country?

JB: Okay, let me deal with that in two ways. First of all, over the last 15 or so years, more than half of the boat people who’ve come here as asylum seekers have come from Afghanistan, they’re Hazaras. We know that the Taliban are engaged in genocide of the Hazaras. So they’re sort of, if you like, they’re the equivalent of Jews fleeing Europe during the 1930s. Typically they come down that, sort of, corridor to the north-west of Australia, down through Malaysia, to Indonesia. They’re able to pass through those countries because they’re Muslim countries. You can get a visa on arrival that lasts for one month, and anyone who’s visited those countries understands that that’s how you do it. You know, tourists from Australia go to Indonesia and Malaysia and you just arrive there and you get a visa on arrival, it lasts one month. And, of course, if they end up in Indonesia, that’s the end of line. The problem is that Malaysia and Indonesia have not signed the refugees convention, so they do not offer protection, they do not promise not to return those people to the country that’s persecuting them. So what happens. Well, in Indonesia, they can go to Jakarta, they can go to the UNHCR officer there, they can apply for refugee status and many of them can and do get a ticket from the UNHCR saying yes, you are a refugee. But, they’re stuck, that doesn’t get them anywhere. What they can do then is wait until some country offers to resettle them safely. Now, in the meantime, when their one month visa expires, they have to live in the shadows, because if they’re found they’ll be thrown in jail or else returned to Afghanistan or Pakistan, whichever country they’ve come from. That means they can’t work because if they work, they’ll be found. They can’t send their kids to school, because if they do that they’ll be found, they’ll be thrown in jail. And so they have to wait for some country offers to resettle them. How long does that take? Well, between 20 and 30 years. Now, I wonder how many Australians who have the misfortune to be in the shoes of an asylum seeker who’s hiding in the corners in Indonesia, how many Australians would choose to wait 20 or 30 years for an offer of resettlement? And how many would take their courage in both hands and jump on a boat to get to a place of safety? Speaking for myself, I would jump on a boat. I’ve never met any Australian who would do any different. What strikes me as odd is we sit here piously saying oh, you know, they should wait their turn, they should do it through the proper channels, without even thinking that that means stand your ground and face persecution or jail for the next couple of decades until some country offers you a place.

A: In what ways do you believe human rights are most abused in current world events?

JB: In current world events? Well, in the trouble spots like Afghanistan, Pakistan, obviously Syria, Iraq, human rights are appallingly abused. I mean, the things that happen to people in those countries beggar belief. We hardly realise how lucky we are in this country to have a stable government, a prosperous economy and a benign environment. But, let me give you an example - I’ve had a lot to do with the Hazaras so I tend to think about them a bit. The Hazaras in Afghanistan have been persecuted really since the 1850s, but it became intensified when the United States established the Taliban in the 1980s. The United States created the Taliban in order to get rid of the Russians out of Afghanistan. What they didn’t know is that they were creating a future problem for themselves. After the Russians were expelled from Afghanistan, the Taliban used Hazara children as human minesweepers. They would have them… they’d get a bunch of hazara children and have them link hands and walk across field thought to have mines in them, so that the children, or some of them, would tread on mines and that would explode the mines. It would leave the children with their legs missing.

A: That’s horrible.

JB: That’s the way it is. And that’s their attitude. In recent years the Taliban have regularly picked off people with snipers. They’ve picked them off in the streets in Kabul, in the Hazara areas of Afghanistan like Jaghori and Ghazni. And more recently in Quetta, which is just across the border in Pakistan. I have Hazara friends who have tried to visit their families in Quetta and who have been scared to go out of doors because they risk being shot down in the street by Taliban. People riding in public buses in Afghanistan are at risk that the Taliban will stop the buses, go through the bus, take out every Hazara from the bus and, you know, take em out, put them on the road, send everyone else on their way and they then execute them on the roadside. And it is not uncommon to see Hazaras who’ve been decapitated by the Taliban with their heads left placed on their chests beside the road where they were taken off the bus. You know, these are really frightful things that are happening and equivalent things are happening, and worse things are happening under the ISIS in Syria. The Kurds in the northern part of Iraq have been persecuted appallingly from Saddam Hussein's time on. We hardly know what persecution is like until we see what goes on in these other places.

A: Look, you’ve probably already answered this question with your last answer, but what drew you to this cause? We always have lawyers in our heads as businessmen concerned with making money, what drew you to helping people and helping the asylum seekers?

JB: Before I answer that, can I make one point since people on Twitter often bag me on financial grounds. As a matter of principle, I do not accept payment for anything to do with refugees. Even if I go and give a speech about refugees, if people offer me payment I say no, no, just make a donation to this or that refugee group. So it’s absolutely not about making money, on the contrary, it’s cost me a small fortune. What drew me to it? I got into it sort of by chance by doing, I was asked to do the Tampa case. And I knew nothing about refugee policy or refugee law, anything, nothing, but I didn’t think it was good to hold a group of people hostage on the steel decks of a ship in the tropical sun, and that’s precisely what was happening. So a friend of mine asked me if I would act pro-bono on an idea that he had and I said, yeah that’s fine. By virtue of doing that case I found myself being asked to do lots of pro-bono refugee cases and I said, that’s fine, I’m happy to do it. I could see that things were bad. But then one particular event happened and it was in May of 2002. It concerned an Iranian family, a mum and dad and two daughters aged seven and 11 at the relevant time. They had fled Iran in really awful circumstances. They were not Muslim by the way they were part of a small, sort of, proto-christian group. They fled in terrible circumstances, they end up locked up in Woomera detention centre in the South Australian desert and after about 15 months, they’re all doing it really hard, and especially the 11-year old girl. She had given up. She had stopped eating, she’d stopping caring for herself, she’d stopped grooming herself. And a psychiatrist who heard about the case and spoke to the kid and to the family, sent a report to the department, which said in the most emphatic terms it’s essential for this child’s welfare that the family be moved to a metropolitan detention centre so she can get daily clinical help. Because she was being, she was able to see, over in Woomera back then, she was able to see a psychiatrist roughly once every six-months, but she needed daily help. It took the department quite a while before it decided to move them, but they were eventually moved to Maribyrnong in the western suburbs of Melbourne to the detention centre there. And then, although their reason for moving them was that this child needed daily clinical help, for the first two weeks of their stay in Maribyrnong nobody came to see her - it was as if they hadn’t even arrived. And on the Sunday night in May of 2002, while her mother and father and her young sister were off having their evening meal, this little girl alone in their cell in Maribyrnong took a bed sheet and hanged herself. Now, because she’s only little she didn’t know how to tie the knot properly and she was still suffocating when the family came back to the room. They took her down, she and her mother were take to the general hospital nearby with two ACM guards, you know two guards from the detention centre with them. So, in theory, although she was in the intensive care unit, in theory she and her mother were still in immigration detention as a matter of legal analysis. Con from the ASRC, which had recently been set up, had been looking after their visa claim. He heard about this and went to the hospital about half-past nine that Sunday night and he said g’day to the ACM guards who know him well - he’s at Maribyrnong a lot - and he said, look I just want to speak to the mother and see if there’s anything I can do to help. And they said to him, no you can’t see them because lawyers visiting hours in immigration detention are nine to five. And they sent him away. He then rang me at home, and I’ll never forget that telephone call. He rang me and told me what had just happened. I will never get over the fact that Australia was willing to mistreat a child so badly that she tried to kill herself and then was prepared to turn away someone who’s simply offering ordinary, decent human help. You know, I thought what an earth is going on in this country that we can be like that, we’ve sunk so low. And then I found myself doing case after case after case and each case seemed to throw up similarly terrible facts. And I discovered it’s not a one off, it’s not just one of those rare exceptions, it’s the standard. And then we see in September last year that it’s become so much the standard, that promising cruelty to this group is regarded as a vote winner. And to be honest, although it’s damaged my practice significantly to be doing all of this stuff, I’m not giving up on it, because I think Australia is better than this. We are letting ourselves down by behaving very badly all because politicians are prepared to lie to us.

A: You’ve mentioned before that legal aid in community legal centres are seriously underfunded and therefore there is no equality before the law. What can we do to change this and should there be more funding given to community law centres?

JB: Yeah, look community legal centres do a great job and are very poorly funded. Legal aid, of course, is the organisation primarily responsible for helping people get legal representation who need it but can’t afford it in the ordinary way and legal aid is severely underfunded. The fact is if you’ve got a legal problem the law is complex and it’s expensive accordingly. You know, there are some lawyers who are cheap because they’re not all that terrific. There are some lawyers who are very expensive because they’re very good. But people don’t choose to have legal problems and I think what we need to do is encourage governments to improve legal aid funding because legal aid should be funded so as to meet the demand rather than it being required to cut its services in order to fit its budget. It’s all about access to justice. You know, you can’t have access to justice if unless you’ve access to law and access to law is unaffordable for many people. Incidentally, in saying that i’m also not pursuing a vested interest because I basically don’t do legal aid work because I normally, my paid work is at the expensive end of the market. So, in my funny way I get the big end of town to subsidise the unpaid refugee work. And good on them, I thank them all very much for that.

A: Look, I thought maybe it would be nice to end on a positive note because we have gone into some heavy discussions here. When was the last time you were pleasantly surprised by support for the issues that you fight for? Do you often experience it from unlikely places.

JB: Yeah, I mean my instinctive answer is actually, I know that I’m in the minority of 30 per cent that think the government is behaving badly, the opposition is behaving badly. But it’s still delightful... I get asked to go to various places and speak about various issues. I’m often meeting people who are a generation older than I am. People who remind me of my parents and who express horror and shock at the way Australia is behaving. The people who grew up through the depression, the people who lived through the second world war, people who I would say understand what Australia can be and remember what it has been. Those are the people who frequently come up to me, they thank me for what I’m doing and they remind me that it’s all about getting Australia back on track to being as good as it is able to be in a way that they can remember. And that’s really encouraging. Because, I mean, every now and then I think, well goodness me if I’m swimming against the tide all the time, maybe I’m just a lunatic? Maybe I’m totally wrong? I mean, both of my parents are dead, but it’s kind of encouraging and in some ways surprising when people of that generation tell me, yeah, you’re doing the right thing and that’s fantastic. It does help keep me going. Although, I have to see the one thing that keeps me going when it all gets hard, and it’s hard most of the time. The thing that keeps me going is bringing to my mind’s eye the vision of an 11-year old child hanging herself because of us.

A: Look, please keep going because you’ve got a huge amount of supporters out there and I’m sure you know that. You probably see it through your facebook posts as well, there’s a lot of people in your corner and we absolutely commend you on what you’re doing and congratulate you on working so hard for the cause. Thank you so much for joining us Julian, we have run out of time, but I look forward to maybe chatting about some art-related matters next time you come on the show.

JB: Good on you, thanks Alex.

A: Okay, thanks Julian, bye.