An Inclusive Australia

Keynote Address to the Law Council of Australia’s Immigration Law Conference

20 March 2015

On 20 March 2015 I delivered the keynote address to the Law Council of Australia's Immigration Law Conference. Earlier that day Malcolm Fraser died.

This is an appropriate forum in which to pay tribute to Malcolm Fraser, as I’m sure many have before me today.

This of course is not the time for a comprehensive tribute, but he leaves a proud legacy in relation to immigration and refugees and human rights.

He was formidable if he opposed you. When I first met him, it was in the context of doing research for a film into his position on the Franklin Dam dispute. At one point, not liking some of the thrust of the conversation, he brought in his stenographer to take down everything that was said. There was no way he was not going to control what happened in that meeting.

He was a whirlwind of generosity if he was onside. I dealt with him repeatedly on human rights issues. He was generous with his time when young people from Liberty Victoria and other human rights groups wanted to interview him or seek his counsel. 

He would not be silenced on refugees, on human rights, on the rule of law – and on immigration.

He showed great dignity and moral compass in dealing with the slide to the right of the Liberal Party, the party he had served for so long, including as its leader, and eventually he left.

Australia will miss his clear, consistent and statesmanlike voice.

Following through on an initiative of the Whitlam government, it was Malcolm Fraser who saw the passage of the first Aboriginal land rights legislation through the parliament of Australia. And so it is appropriate that we now acknowledge the Wurundjeri people of the Kulin nation, the traditional owners of the land on which we meet, and pay our respects to their elders past and present.

In 1827 the two Misses Daulby conducted their Seminary for the Daughters of Gentlefolk, near Liverpool. Ellen Turner, just 15 years old, was a pupil. Her father had amassed a considerable fortune, and one day she would inherit.

Mr Wakefield, then 30 and a widower, sent his servant, Edward Thevenot, to the school with a message to the Misses Daulby, that Ellen Turner’s mother had become paralysed and wished to see her daughter immediately. The Misses Daulby allowed their pupil to leave with Thevenot, who was a stranger.

He took young Ellen to see Wakefield at a hotel in Manchester. Wakefield told her that her father’s business had collapsed, and that he would take her to Carlisle, where her father had fled to escape his creditors.

On the way he told her that the banks had agreed that if Ellen married straight away, her father’s fortune would be saved. Wakefield’s brother joined them and claimed Ellen’s father had agreed to the marriage.

The were married at Gretna Green. Ellen then said she wanted to see her father, but Wakefield said he had a meeting in Paris he could not postpone, and took her across the channel.

The Misses Daulby became concerned when their charge did not return, and the alarm was raised.

The British Foreign Secretary issued a warrant for the arrest of Wakefield. The relatives caught up with the couple in Calais, and despite Wakefield’s protestations that she was his lawful wife and could not be taken away without his permission, French authorities allowed her to go with her family.

The marriage was annulled by parliament.

Wakefield was charged with felonious abduction and unlawful marriage. The trial was a sensation, attended daily by fainting ladies and a series of outlandish witnesses.

Wakefield was sentenced to 3 years' jail – which he served in Newgate Prison.

The Mr Wakefield in question was Edward Gibbon Wakefield, and while he was in prison, surrounded by convicts waiting to be taken to Botany Bay, he began agitating for settlement in South Australia. He wrote a series of fictitious letters as if from the evil colony of Sydney, and devised a radical social experiment outlined in A Proposed National Society, for the Cure and Prevention of Pauperism, by Means of Systematic Colonisation.

He planned to select the most capable of the poor, sell them cheap land in the new colony, and build a model society.

‘The object,’ he wrote ‘is not to place a scattered and half-barbarous colony on the coast of New Holland, but to establish a wealthy civilised society.’

Here he was, a convict, telling the world how to create a civilised society.

RobertTorrens – now famous for the system of land title he gave us - took on Wakefield’s theories. He proclaimed that South Australia’s favourable climate would allow opium to be grown for the Chinese trade.

Wakefield was eventually shut out of the South Australian venture, but he was later involved in the settlement of New Zealand, and went on to have a long and successful career in parliament.

His initiative led to the landing of the first European settlers in what was to become Adelaide in July 1836 – at a place they called ‘Port Misery’.

They were the first economic migrants to South Australia. They had been preceded by settlers landing in what is now Melbourne less than a year earlier – also economic migrants.

Australia since then has had a mixed record in the field of social justice.

When the nation federated, the first legislation enacted was the Immigration Restriction Act – which of course instituted the White Australia Policy.

In the course of his Second Reading Speech, the Australian Attorney-General, Alfred Deakin, discussed the Commonwealth’s powers in this area, and went on to say:

We have power to deal with people of any and every race within our borders, except the Aboriginal inhabitants of the continent, who remain under the custody of the states. There is that single exception of a dying race; and if they be a dying race, let us hope that in their last hours they will be able to recognise not simply the justice, but the generosity of the treatment which the white race, who are dispossessing them and entering into their heritage, are according them.

Australia helped pioneer so many social advances:  the 8 hour day, free universal education, women’s suffrage,  the basic wage.

In the 1930s and 40s some Australians championed the cause of Jewish refugees from Europe - in the face of the prejudice of those who said they were a threat to our national security, they were communists, they were Germans.

In 1948 it was an Australian Minister, Dr Evatt, who presided over the passage of the Universal Declaration of Human Rights in the United Nations.Today we are the only western nation not to have enshrined its principles in our laws.

Australia was a signatory to the Refugee Convention in 1951, but today our government routinely acts in contravention of the obligations we have undertaken - as the relevant UN authorities have repeatedly ruled.

Today we have become enmeshed in confusion in dealing with some aspects of immigration – especially asylum seekers.

Border protection – the rhetoric of border protection is entirely misplaced. In the middle ages, when a person sought sanctuary from the church, no one said they threatened the church’s borders. By coming here to seek asylum, refugees do not threaten our borders – they invoke their protection. They seek the protection of our jurisdiction. The border protection paradigm has opened the way to a military response to a humanitarian problem. The use of the military to deal with this issue shows that our appreciation of the nature of the issue has become deranged.

But of course there is a threat to our borders. It is from politicians who have excised large areas of our nation from the normal oversight of the courts. That is a real threat to Australia’s jurisdictional limits.

ASIO assessments – many of you would have more first hand experience of this than I do, but there are several people detained by virtue of adverse ASIO assessments, unable to know why, or to realistically challenge the facts or judgments which give rise to that assessment. Some have now been held for years. This includes their children.

If a person in power can make a decision which takes away a person’s liberty, and there is no adequate mechanism for answering the decision so that it can be independently assessed, we have lost the rule of law, and have replaced it with the rule of the decision-maker’s whim.

Our nation has never come to terms with the dispossession of the indigenous inhabitants to the land. No wonder we are uneasy about newcomers. Until we come to terms with the past, and deal with this in a way that makes these wrongs right, we will continue to come up against a deep-seated guilt, which in turn drives its own fear. This is what underlies so much of our debate about asylum seekers and immigration more generally.

Malcolm Fraser had a vision for an Australia which was not held in thrall by the white Australia policy or any other racist paradigm. When Vietnamese boat people were coming to Australia, he arranged for refugees to be brought directly to Australia from refugee camps, so they did not have to risk the journey. He showed leadership by providing repeated reassurance to the nation that we Australians could handle this. It was a remarkable contribution to the wellbeing of our country.

He promoted multiculturalism, and spoke out on the rights of asylum seekers, most recently criticising the government for its intemperate attacks on the Human Rights Commissioner.

I hope we may strive for an enlightened Australia -  a nation which has come to terms with its past by reconciling with our indigenous community, a nation which lives up to its international obligations in relation to human rights and refugees, a nation inclusive of all sections within the community.