Malice in Wonderland, by Desmond Manderson

It is the little things that count. Particularly when we are most alone, most overwhelmed or most abandoned, it is the small gestures of friendship that keep us from despair. And it’s the little things that hurt, too, like an unanswered phone call, or a letter to a friend that goes missing. When it is not one letter but 2000 that go missing, it doesn’t look like carelessness; it begins to look like malice.

The processing system set up to deal with refugees on Nauru and Manus Island is so riddled with injustice and incompetence that surely it must all soon come to a head. The latest affront to the dignity of both those detained offshore—not to mention to the tattered remnants of Australia’s reputation—was reported by The Guardian’s Australian edition on 10 March 2015. Over 2000 letters of goodwill written by Australian citizens have been returned to the office of Julian Burnside undelivered. They were intended to reduce the psychological isolation of men, women and children who are already, as we know, kept under conditions that are at best indifferent to the emotional suffering and long-term psychological damage being maliciously inflicted.

These letters were legally written, legally sent, and properly addressed to inmates on Nauru in early 2014. In July the department of immigration reassured Julian Burnside that they were being distributed to detainees by Transfield, the Australian government’s trusted ‘service provider’. This now appears to have been wholly untrue. After several months of email exchanges, the letters have been returned in bulk to Mr Burnside—apparently unopened.

At this stage, it is hard to tell whether crimes have been committed. It is, for example, a Commonwealth offence under Part VIIA of the Crimes Act to fraudulently prevent the delivery of a postal message. As part of its explanation for what happened, the department of immigration explained that it had concerns that the self-addressed reply envelopes (included along with the personal letters sent to detainees) did not have the correct local stamps. But of course this is nothing but a red herring. Indeed, if anything, it makes the legal position worse. Were the self-addressed envelopes not inside the letters sent to those people? If so, how did the department of immigration, and Transfield, know that there was a purported problem with the return stamp unless they read the letters? It is also a criminal offence to tamper with or open someone else’s mail.

It gets worse. In response to Burnside’s questions, the media liaison officer in the Department of Immigration and Border Security advised that the letters could not be delivered because asylum seekers were—and I am not making this up—‘unwilling to accept letters from an unknown Australian source’.

I do not enjoy being treated like a fool, or a mushroom. The claim beggars belief. Who exactly made this assessment and on the basis of what evidence? Did they ask all 2000 recipients? Burnside initiated a letter-writing campaign several years ago, under similar circumstances. Certainly at that stage many inmates expressed their profound gratitude at receiving such expressions of support from Australian citizens. It is hard to believe that circumstances have for some reason changed.

By what right does the department or the service provider decide whether or not to deliver mail, or if the mail is ‘wanted’? Australia Post does not make those judgments without express instructions, nor should it. It would be an outrageous abuse of power. Letters are delivered and it’s up to the recipients whether or not they wish to read them. Indeed part of the point of the postal service is the service it provides to senders, not just to recipients. I may not want to receive bills or summonses, but that does not mean I can simply advise the postal service not to deliver them.

Moreover, since when has our legal right to express opinions by letter become subject to some sort of administrative oversight as to whether or not they are worth delivering? At what point would the exercise of such a discretion amount to a breach of the rights to free speech implied in the Constitution? In Monis v The Queen (2013), a provision making it a crime to use the postal service to ‘menace, harass or cause offence’ was upheld by the High Court. But however far that limitation on the implied right of political communication extends—and in Monis aspects of the letters that were sent to the families of Australian soldiers killed in action, were (at least arguably) offensive and unwelcome—it would hardly extend to private letters expressing support and solidarity to individuals.

To sum up: an Australian government department provided misleading information to a leading Australian public figure on a matter of national interest. The department, having been warned repeatedly of its failures, did nothing about it for at least six months. In addition to its own incompetence, it is at least complicit in failing to properly supervise the actions of its contractors. Whether this was done intentionally, maliciously or by accident we do not know. The ‘service provider’ seems to have refused to deliver these letters, for reasons best known to itself. It failed in whatever duty of care it has with respect to the persons under its control. The frail well-being of detainees has been treated with contempt, and the genuine rights and interests of Australian citizens, thousands of whom wrote to those people, have been completely disregarded. The responses by the department and the government have been from first to last scarcely credible.

Even during the Second World War, letters to POWs were sent and delivered. What would happen if 2000 letters to Australians went undelivered by some act of gross indifference or indeed contempt? What would be the response of the Australian public if letters of support sent, for example, to Australians on death row in Indonesia were returned under the dubious assumption that they ‘did not want to receive the letters’? Would there not be an outcry? Do we really think that mandatory detainees—who have committed no offence but have simply attempted to exercise their legal rights under Australian law and the Refugee Convention—are entitled to fewer rights and less care than prisoners? Does the government believe that detainees have no rights and no entitlements at all? Are they just to be treated as spot-cards in the games the government appears to be maliciously playing with their lives?

A letter or two is a small thing. But it is precisely because it was such a small gesture of comfort and sincerity on the part of individual Australians that the whole episode strikes me as particularly nauseating. In the little things we find exposed for all to see the moral bankruptcy of the government’s attitude. Its responses have shown an arrogant indifference to the truth; contempt for the welfare of those in detention; an insulting belief in the credulity of the public; and a wilful disregard for common decency that seems even to have begun to taint the department of immigration.

But the little things reveal the big picture. That same week, the Prime Minister was again confronted by a trenchant UN critique of our failure to respect human rights and international law. In his bleakest finding to the Human Rights Council, Juan Méndez, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, concluded that Australian policy was in breach of the Convention Against Torture. The Prime Minister described this allegation as ‘bizarre’. But Abbott’s response on 9 March 2015 was not to reject the allegations or dispute the facts—not a bit of it. He simply said that everyone should thank him for stopping the boats. His argument was exactly the same in relation to the Australian Human Rights Commission’s report on children in detention (discussed in more detail below). There, too, he did not deny accounts of the treatment of children in detention but merely responded that the government deserved bouquets rather than brickbats.

If we take the government at its word, this is a kind of utilitarianism that aims to increase the total happiness of the community even if some people are made worse off as a result. In An Introduction to the Principles of Morals and Legislation, Jeremy Bentham called this ‘the felicific calculus’. For some utilitarians it would be OK to have concentration camps or slaves, as long as it made the rest of us terribly happy; that would more than make up for their misery. In Anarchical Fallacies Bentham famously said, ‘Natural rights is simple nonsense; natural and imprescriptible rights…[is] nonsense upon stilts’.

That’s the big picture: human rights as ‘nonsense on stilts’. Abbott’s ‘felicific calculus’ is that more people are made happier by ‘stopping the boats’, even if some people—those stuck on Manus or Nauru, for example—are made very unhappy indeed. Let me repeat: our government is prepared to turn a blind eye to, or to condone, perhaps even intentionally devise, actions that amount to torture, so long as it helps it realize its goals. Has there ever been a case like it in Australian history? The violation of human rights is not an accident; it’s a policy. Net happiness has increased, so we have nothing to apologise for.

By and large, most writers on human rights would argue that they are incompatible with this kind of utilitarian reasoning. They are not to be traded off against other interests. Our human rights—to political liberty, the rule of law, freedom of speech—protect us from what governments (in particular), and democratic majorities for that matter, would like to do if they had a free hand. Human rights are a brake on utilitarianism, a line in the sand that says, ‘thus far and no further’. They mark the very limit of how governments are entitled to go about their business. Rights tell us to treat human beings in certain ways—or not to treat human beings in certain ways—even if some social aim would be advanced by ignoring them. ‘Rights’, as Ronald Dworkin put it, ‘are trumps’—even the little ones override the top cards in the other suits the government wants to play. From that point of view, the Human Rights Commission is indeed ‘partisan’. Even if placing thousands of people in concentration camps—sorry, detention centres—‘stops the boats’ (a highly debatable proposition) that does not somehow make it OK.

The Abbott government’s lack of interest in human rights is of a piece with its lack of interest in the rule of law. As Lord Bingham emphasised in his recent survey of the subject, the purpose of the rule of law is as a further brake on utilitarianism. It sets up not norms (such as human rights) but procedures that are intended to restrain governments from doing just what they want. Evidence of the Abbott government’s disturbing failure to comprehend the meaning of the rule of law has also been mounting this year.

On 12 February 2015 the Prime Minister made grossly prejudicial remarks about the prosecution of two Australians for terrorism-related offences. Although made under parliamentary privilege, these remarks blatantly breached the sub judice principles of the House of Representatives. The Prime Minister is entitled to make comments on a matter of public interest. But as Billy Snedden, an authority on this question and a long-standing Liberal Speaker of the House, said, the right to free parliamentary speech stops when it interferes with the right to a fair trial. Parliamentary remarks must ‘refrain from any comment as to the guilt or innocence of the [accused] person’. They should not discuss specific aspects of evidence in a way that might influence members of a jury or witnesses, or prejudice the accused’s right to a fair trial. Matters of guilt and innocence are not decided by the Prime Minister but by an independent judge and an apolitical legal system. That is the rule of law; we aim to protect people from being lynched by parliament or in the media—people must have their day in court. Of course the government seems to place ‘freedom of speech’ above all other rights, including the right to a fair trial. I can only hope that most people in Australia think otherwise.

But as we have already seen in relation to the Burnside letters, the only free speech this government values is its own and that of its mates. The crass and spurious efforts to impugn the integrity of the Human Rights Commission’s 2015 National Inquiry into Children in Immigration Detention are a case in point. Prime Minister Abbott’s claims on 12 February that the report was ‘blatantly partisan’ and ‘a transparent stitch-up’ will not bear scrutiny. The Human Rights Commission, like the judicial system, has a specific job to do under international convention and Australian law. The government’s efforts to discredit it are another blow to the rule of law—to the principle that independent actors are given specific roles that serve as counterweights to the political power of government.

Once again, however, this government does not just engage in a few smear tactics. It is willing to go that extra mile. Gillian Triggs, the President of the Commission, gave evidence before the Senate Estimates Committee on 23 February that the Attorney-General, George Brandis—who has a legal obligation to protect the rule of law—attempted to pressure her to resign before the report was tabled. This only confirmed news reports which had been circulating for several days prior to Triggs’ appearance, and which the government had not bothered to deny until the issue had become politically sensitive. Of course those still supporting the Prime Minister argued that she had ‘lost the confidence of the government’. But it is hardly her responsibility to have the confidence of the government. Indeed, the opposite is the case: the government has undoubtedly lost the confidence of the commission, not to mention the international community.

We know that only a couple of weeks previously, on 9 February 2015, the Malaysian government pressured its judiciary in order to ensure and uphold the conviction of Anwar Ibrahim on politically motivated charges. What would we think if our Attorney General tried to act in the same way? What if he had attempted to induce a judge to resign before the ruling in a particular case was handed down? Such behaviour would strike the death knell for the rule of law in Australia. The real question is: how much did George Brandis’s intention differ from the ones in these hypothetical examples? The Human Rights Commission has legal and statutory responsibilities, just as a judge does. Both are vital parts of our commitment to a legal system that is not simply a party-political plaything. One difference is perhaps that the Malaysian government succeeded, whereas the Australian Attorney-General did not—not, it would seem, for want of trying. This government seems as uninterested in the rule of law as it is in human rights. Everything comes down to politics for it, and nothing but winning matters. It’s not about freedom of speech; it’s about the will to power.

Ironically, it has always been the ‘Left’ that has thought this way—that has been critical of the rule of law as a set of ‘niceties’ that prevent governments from enacting radical social reforms. And it has been conservative parties that have traditionally placed the rule of law at the heart of their ideals. E. P. Thomson, a renowned Marxist historian, put the lie to that distinction. In his most celebrated book, Whigs and Hunters, he concluded that the rule of law was ‘a universal human good’, and the greatest achievement of our legal tradition. Perhaps, in their calmer moments, the Prime Minister and the Attorney-General might agree. But cool heads do not prevail too often in Canberra nowadays. The Prime Minister and his merrie men have shown themselves determined to lash out at their perceived enemies and to ride roughshod over any and all criticism. The Abbott government’s own words and policies consistently demonstrate that the only game it understands is no trumps, jokers wild.

In the smallest of gestures—like forgetting to deliver letters expressing support to lonely, isolated and deeply distressed people—we perceive how playing the game this way casts a shadow of malice that is diminishing not just the political process but our administration, our public service, our media and every aspect of civil society. Of course, for the moment, it is probably not you or I who suffer from the erosion of fundamental legal principles; it is a few thousand people on a couple of islands far away, for whom even a letter that might nourish their spirit or help maintain their sanity is just another nuisance to be set aside. But how long before we all tumble down that rabbit hole? And how long before we are shaken awake?

Note: Aspects of this essay originally appeared in ‘Human Rights a House of Cards’, The Canberra Times, 13 March 2015, and ‘Quietly Un-Signing the Magna Carta’, The Canberra Times, 19 February 2015.

Desmond Manderson is an ARC Future Fellow studying concepts of legality and justice in the ANU College of Law and the Humanities Research Centre, Australian National University.