Interview with Justice Marcus Einfeld

Produced by Kirsten Garrett
Sunday 3 June  2001

Kirsten Garrett: Hallo, I'm Kirsten Garrett and Background Briefing today listens in to a speech on human rights by Justice Marcus Einfeld, at a lunch at Parliament House in New South Wales. The occasion is the Jessie Street Trust annual gathering.


Marcus Einfeld: Well thank you very much for the enthusiastic welcome, and thank you to the introduction. I just want to say that that came over so much better than a person who once introduced me by saying, 'I want to introduce to you Marcus Einfeld, some of you have heard him and some of you have not, and I'm sure those who have not are looking forward to it.' He meant well I'm sure.

Somebody else once introduced me by saying 'I have no need to make a long boring speech of introduction, we have Marcus Einfeld as our guest of honour.'

Kirsten Garrett: This speech by Justice Einfeld will make up most of Background Briefing today. However, a digression. Into hedonic psychology. We know that you know what that is, the study of happiness. Happiness is a hot topic in politics and economics as the masters of the universe try to work out why you vote the way you vote, and spend your money in certain ways.

There are journals in happiness studies and market researchers are surveying happiness around the globe. And Background Briefing wants to hear from you about it, too. Not so much the cute baby's smile kind of happiness, but your sense of well-being. The left, right and centre of politics is nowadays extremely interested in the study of your well-being, because if they can bottle it, then they can brand it as their own, and sell it to voters.

Whitlam's government set up a Human Happiness Index study in 1974, in order to shape a better society. At the time, the ABC hit the streets, wanting to know what made the public happy. This, from the program 'PM' in March, 1974.

Reporter: What's your idea of happiness? What makes you happy?

Woman #1: Oh, I don't know, I suppose it's going out with the guys.

Reporter: Are you often happy?

Woman #2: No.

Reporter: Why not.

Woman #2: Not much money.

Reporter: What makes you happy?

Woman #3: I think everything,

Reporter: Are you happy?

Man #1: I can't help you.

Reporter: Why not?

Man #1: Because I'm an ABC employee.

Reporter: Does that prevent you from being happy?

Man #1: No, I am happy as a matter of fact, as an ABC employee as well.

Reporter: Are you happy?

Man #2: Bloody oath, mate.

Reporter: What makes you happy?

Man #2: Everything, but great being alive. This is the greatest place in the bloody world.

Reporter: What particularly makes you happy?

Man #2: The fact that I'm alive mate. I wake up every morning and I can see the sun and the stars and the rain and the shine, it's magnificent. Bloody paradise. If heaven's any better than this I wouldn't be able to stand it. Bloody marvellous here, and if they ever get me from this planet, mate, they'll have to drag me off with a team of wild horses, that's how bloody good this place is.

Reporter: What makes you particularly happy?

Man #3: Well I've got a tremendous little wife, three gorgeous kids and I've got no money, so I've got no bills to worry about.

Reporter: How come you're happy if you've got no money?

Man #3: It's only people who've got lots of money that are unhappy.

Reporter: What's happiness to you?

Man #4: I'm the one saying all I wanted to be was happy, then I stopped saying things like that and started to do things like I gave away university which was unhappiness. That's the clue; you can tell what happiness is from what's not happiness. See, I know what's not good like working in an office is not good, hire purchase agreements aren't good, marriage isn't good, neurotic relationships aren't good.

Reporter: What is good?

Man #4: As I said, you can tell what it is from what it's not. Understand?

Kirsten Garrett: Gough Whitlam's Index of Happiness towards a better society hadn't been finished when his government was sacked by the unhappy Governor-General.

Decades later, in 1999, the Coalition government thought your happiness is none of their business. Tony Abbott, speaking on the program 'AM', said happiness and well-being is not the government's job.

Tony Abbott: In the end, government has no magic wand. We can't give people a magic carpet ride to health, wealth and happiness. In the end, people have got to be the authors of their own individual destinies and of their own success. This idea that government can make it happen for everyone is just wrong.

Kirsten Garrett: Now, a few years later, every shade of politics is again interested in individual happiness as political parties struggle for the hearts and minds of citizens.

In several countries, and Australia, there are statistics being scientifically gathered for what are called 'Indexes of Well Being'. Perhaps we are born happy or optimistic, resilient; maybe the kind of society we live in can create or encourage anxiety which overwhelms well-being. In a few weeks, Background Briefing will be an investigation of the politics of happiness.

So, in preparation for that program, Stan Correy is conducting a completely unscientific, random, subjective survey of his own. We hope you will write to us or go to our website with your comments.

So, grab a pen; here's Stan with some questions that might inspire you to contact us.

Stan Correy:

  1. Does your happiness have anything to do with government?

  2. Is your personal happiness tied up with economic well-being?

  3. Not considering your personal situation, how satisfied are you with life in Australia?

Kirsten Garrett: We'll repeat those questions at the end of the program.

It's not an easy area. Some people would be made very happy if President Bush dropped a great big missile on Beijing. Others would just like a little bit more money, or better public hospitals. And then there's always the warm puppy. We should restate that our survey is not at all scientific, but we may use some of your answers, though not your name, in Stan Correy's program. If you have answers to the questions, please send your comments to Background Briefing at Radio National, at GPO Box 9994, in your capital city. Or go to our website and follow the prompts to Background Briefing. I'll repeat some of that at the end of today's program.

For now, we continue the speech given at the Jessie Street Trust annual lunch by Justice Marcus Einfeld.


Marcus Einfeld: Jessie Street was a great advocate for the interests of deprived, discriminated and underprivileged peoples, and a great worker and leader of the women's movement. I've had a long family association with Jessie Street and her family. As a stalwart of the Labor Party from the earliest age it was possible to join, my father became her campaign director when she stood for the Federal seat of Wentworth in 1946. I remember that one of his pre-election ploys on her behalf, probably illegal, was overnight to paste the name 'Jessie' over all the street signs in the electorate. So that when the people woke up in the morning they found that every street was named Jessie Street. She got the largest vote ever known for a Labor candidate in a blue-ribbon Liberal seat and went close to winning the seat, probably because the people were so confused about where they now lived. In fact I can remember being taken by my Dad to the place where the results were coming in on election night. I didn't know too much about elections at the time, (don't know too much about them now) but the good booths for Labor came in first and Jessie was well ahead. She was overjoyed and confident but my father kept telling her to wait and that things were not quite as good as they looked. Unfortunately she fell just short, but it did not dull her energetic and stalwart commitment to addressing and righting social wrongs whether they were in the silvertail areas of Vaucluse and Watson's Bay, or the refugee camps in the poor countries of the world.

On tenth of December last year, the world marked the fifty-second anniversary of the Universal Declaration of Human Rights, which Jessie worked hard to achieve. That bold and brilliant document speaks of recognising the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. It observes that the disregard and contempt for human rights have resulted in barbarous acts that have outraged the conscience of mankind. It calls for the advent of a world in which human beings shall enjoy freedom of speech and belief, and freedom from fear and want, as the highest aspirations of the common people. It declared as essential that human rights should be protected by the rule of law.

As a consequence, a common standard of achievement was declared for all people and all nations. Every individual and every organ of every society was required to strive, by teaching and education, to promote respect for these rights and freedoms and to work to secure their universal recognition and effective observance.

For most of this fifty two years Australia has been one of the leaders in accepting the high humanitarian standards proscribed by the Universal Declaration. As a middle power with a respected human rights record, Australia has been looked to and listened to by the international community on human rights issues. This proud tradition of support for human rights and dignity casts upon us a great responsibility. As the largest developed democracy in our region, indeed the sixth oldest democracy in the world, Australia not only has an obligation to speak out and act against persecution running rampant in other countries, we have an obligation to prevent and remedy human rights abuses on our own soil, and the standards we must observe are those we set for ourselves, not alien credos which we loudly and rightly reject.

Some people label these human rights principles as foreign ideas imposed upon us by unattractive regimes or ideologies from elsewhere. But none of the tenets of the Universal Declaration and the raft of international laws that have followed, have in fact been forced on Australia by anyone. For one thing, when they were passed, the UN was firmly under Western control. But more significantly, none of their principles are foreign to us or to decent people anywhere. All of them are recognised and accepted as part of our and many others' cultural and legal framework in any event. The driving force for their enthusiastic adoption in Australian terms is the evolution of our nation into a society where laws, employment and human relations reflect decency and honour, where legitimate controversy is fought and resolved with a passion devoid of stereotypes and of minority group or racial defamation. Where a fair sharing of our country's resources and benefits is open to every sector of the community. And above all, where decisions of all kinds stem from considerations of merit and true deserts, free from preconceptions, prejudices and pre-judgements.

However, in my perception, we Australians, together with the peoples of many others of the so-called developed countries, are today in serious danger of forgetting these goals. Continuing to recall and nominally respect the Universal Declaration and all the other human rights treaties is one thing, it is quite another to ensure that our governments and people actually honour the rights. And as of late, our commitment is looking decidedly hollow and the world is taking notice.

Contrary to what some of our leaders claim from time to time, breaches of human rights and decency occur every day in Australia, and in all of the so-called developed countries. We fall far short of our obligations to children, women, especially those in poor circumstances, people with disabilities, refugees, new migrants, and many others. Recent year cutbacks in this country in public funding for social justice, allegedly due to economic imperatives sometimes rather ironically called 'economic rationalism' (have you ever known anything quite so irrational?) might have produced a budget bonanza at least up to the wild things that have happened since the Western Australian and Queensland elections, and the Ryan by-election. But they have resulted in major reductions in our provision of childcare, in job creation, education and social welfare programs, in efforts to care for children especially refugee and new migrant children, and to assist Aborigines and Islanders to improve their situation. So that again, the poor are being hit to help the rich, and the gap between the two widens even further.

The so-called trickle-down effect, supposed to flow to the poor from helping the rich become richer, has again reversed or at best stopped its flow, as it always does. If I may say so, we need a little less economic rationalism and a little more rational economics.


I turn briefly to the subject of women. The Amnesty International campaign report in 1995 entitled Human Rights are Women's Rights, stated amongst other things as follows:

'Most casualties of war are women and children. Most of the world's refugees and displaced persons are women and children. Most of the world's poor are women and children. Human rights violations against women remain rampant because they are largely hidden.'

At the recent session of the Security Council, the Assistant Secretary-General and Special Advisor on Gender Issues, Angela King, said this: 'The fundamental human right to have and to enjoy equality is a given. There can be no peace without gender equality and no development without both peace and equality.'


Marcus Einfeld: Following the debate, the Council adopted a resolution to provide a framework for a much-needed focus on the millions of women living in crisis and armed conflict, and recognised their potential contributions to the resolution of conflict and their participation in it. The Security Council adopted the theme 'Women: peace and security; Women: managing conflict' for this year's International Women's Day Observance. The focus was directed to the international community's commitment to addressing the devastating impact of armed conflict on women, their critical role in peace making, peace keeping and peace building, and the need to ensure full and equitable participation of women in peace processes. A project which I head in the Middle East area has focused on women's role in bringing the Israelis and Palestinians together, it is one of the few success stories of the region.



" If men bore children, no-one would ever have dared argue that the cost of childcare should not be tax deductible or a Social Security entitlement."

Marcus Einfeld: The disadvantages that women face must not be consumed and forgotten as they are real and persisting. They exist in Australia too, especially among poor and migrant women. I'm obviously not able to cover this topic in detail today, but one statement will set the theme for what could be said about the situation in this country. If men bore children, no-one would ever have dared argue that the cost of childcare should not be tax deductible or a Social Security entitlement.

Mind you, if men bore children the birthrate would stop overnight.

Kirsten Garrett: Justice Marcus Einfeld talking about human rights issues, particularly at this point about the Palestine-Israeli conflict.

Marcus Einfeld: Although it saddens me to say it, developed nation status does not guarantee respect for the human rights of children. Indeed, in one particular turbulent region of the world to which I've just made brief reference, children are as we speak, actually being allowed, perhaps encouraged, by their parents and leaders to occupy the front line of battle between two parties to conflict and there being subjected to heavy arms fire, including live bullets and teargas, and to injury and loss of life. I can understand, even if I cannot personally accept that religion may be a legitimate impetus for personal sacrifice, even martyrdom. I can certainly understand what the national security imperative might demand, but whatever the reasons or justifications of the two parties to the Middle East conflict permitting this situation to occur, this wilful exposure of children to injury and death without other nations being willing to intervene effectively to stop it from happening or continuing is nothing less than a shameful reflection on international morality not 60 years after the brutal killing of 1-1/2-million children by the barbarous Nazis.

In Australia, and too many other countries, it is becoming increasingly easy for children to fall through the cracks into the margins of society by many of the conventional indicators, gross domestic product, for instance, Australia is more prosperous than it has ever been through our ratification of the UN Convention on the Rights of the Child, Australia has undertaken to commit its maximum resources towards children and their well-being. Yet more than 40% of our children live with families on welfare benefits, or on incomes that make them the working poor. Time and again evidence has shown that worse health is being experienced by children from lower socio-economic backgrounds. There is also evidence that rural Australian children, particularly infants, experience a higher death rate than children residing in metropolitan areas. In fact Australian children regularly suffer infringements of their basic rights.

The Human Rights Commission reported just over 13 years ago, when I was President, that more than 100,000 youngsters were homeless in a country of affluence and prosperity. They are still there, some not very far from here, vulnerable to unsavoury, even criminal influences, many living on the streets of our cities and towns, in clothing bins and under bridges, injecting their arms and selling their bodies just to stay alive.

Recent research conducted by the Melbourne City Mission has found that more than one-third of Australia's homeless thousands are aged between 15 and 24. The Salvation Army reported last year that 400 children sleep on the streets of Sydney alone each and every night. Many kids have no medical or dental care. There were 30,000 substantiated cases of child abuse and neglect in Australia in each of the last three years. Our youth suicide rate is said to be the fourth or fifth highest in the world. Who was it who once said that by 1990 no Australian child would live in poverty? The fact that it has not been achieved should provide the rest of us with all the more incentive to achieve that goal today.

The Australian newspaper late last year contained an article entitled 'Children pay the price of poverty'. It stated: 'Australia's welfare departments are being swamped by cases of child neglect, with more than 6,000 children every year confirmed as victims of a problem caused largely by the poverty that still affects 600,000 children.' Studies here and overseas show poverty and social isolation are big factors in neglect cases. Parenting is hard for everyone, let alone for those without a phone, a car, living in the fringe areas without accessible transport, no money for a babysitter, no money to go out for a night and certainly not for a weekend break, day in, day out.

In a quite scathing country report on Australia that year, Amnesty found that many children, particularly Aboriginal children, were arrested and detained in circumstances amounting to cruel, inhuman, or degrading treatment. Amnesty said that at least ninety two largely young people died in custody or during police operations that year, sixteen of them (almost twenty per cent) Aborigines. It went on to say the rate and circumstances of deaths in custody led to several inquiries with some cases raising concerns about ill-treatment, inhuman prison conditions and lack of care. Similar criticisms were made in the Progress of Nations, an annual report on the state of the world's children and their mothers, which I have launched for UNICEF from time to time, where the massive over-representation of indigenous children in our justice system was brought to the world's attention. They are still there, and the numbers are increasing with every day that one of our belligerent States and one of our reactionary Territories keep their mandatory sentencing laws in force.

Youth unemployment in Australia is in disaster territory. Nearly twenty two per cent of our fifteen to nineteen year olds looking for work are unable to find full time work, a number on which we have now been stuck for many years. The figure is approaching sixty per cent in some parts of the country, comparing with around seven per cent for the whole community. Whatever the politicians say it is by any standards now chronic. It demands something more than platitudes and changing the tax system. People who do not work pay no tax, they just use what is collected from others to feed their bodies and their depression. Young people all around Australia are hurting, as they deal with the insecurities of being unemployed.

How much do all these tragedies cost? Is it less than the cost of providing work? There can be no doubt that the continuing suffering of indigenous Australians are our greatest shame, and the deprivations endured by the children are the very worst aspect of that shame. Many people in this country including many leaders and moulders of public opinion speak of everyone having or being given equal rights in our society. This is a glib, albeit seductively expressed point of view. If two people commence life far apart in assets, whether personal or material, and they thereafter receive proportionally equal benefits, the gap between them actually increases. In other words, equal treatment of people on unequal levels of the outset of the equalisation process, merely perpetuates the inequality.


"Whichever social indicator is looked at, whether it is health, education, justice, employment or housing, indigenous Australians are identified as the most disadvantaged group in the country. This situation represents a manifest and fundamental breach of Australian and international law."

Hence the superficially attractive appeal that everyone should be treated equally as from now, a favourite catchphrase of the Hansonists, is in fact a recipe for retaining differences, imbalances, and discrepancies. It is also surreptitious and insidious discrimination. For whether conscious or unconscious, the consequences for the victims are exactly the same. The truth is, that in this eighth year of the UN declared Decade of the World's Indigenous Peoples and despite the increased volume of legislation and very significant financial allocations by the governments from the '70s onwards, Australia's indigenous peoples still face gross inequality, deeply rooted in history and the prejudiced, intolerant or stubborn attitudes of the white community. Whichever social indicator is looked at, whether it is health, education, justice, employment or housing, indigenous Australians are identified as the most disadvantaged group in the country. This situation represents a manifest and fundamental breach of Australian and international law. What it says about the morality of our nation, I leave you to contemplate.

Some argue that it is not necessary to say "Sorry" for this awful and unlawful state of affairs. I fervently disagree. Many wrongs have been committed against our indigenous people and their ancestors during 213 years of European civilisation in Australia. They did not deserve what they received, and it cannot all be laid at the feet of the past. Certainly past generations acted quite appallingly and in a most violent and discriminatory way. The stolen children program was at best thoughtless, at worst criminal. Kidnapping, rape and other forms of assault and the other indecencies inflicted on many of the children concerned are all crimes in any country and every language. Paying young children one, two five or ten dollars a day for twelve or fourteen hours of heavy labour, seven days a week, was a monstrosity in any era. Many of the Aborigines involved are still alive today. So are many of the white people who participated. These things were still happening as late as 1970 when many of us, including me, were helping ourselves to far better products of our society. Our even more modern generation has a pretty solid case to answer as well. On this very day, against a national figure of around six per cent, the Aboriginal adult unemployment rate is forty one percent and is expected to rise to forty eight per cent by 2006. Unemployment amongst indigenous youths is eighteen times worse than their white counterparts, and the deaths of Aborigines in official custody are still happening, even increasing, despite the thirty million dollar Royal Commission Report and a considerable expenditure of effort and money.

Mandatory sentencing, which I prefer to call compulsory jailing, is a nasty, insidious creation of our generation that not even the convict settlement introduced. I oppose it absolutely, and have been doing so for many years for reasons about which I wrote in the newspapers last year. I was President of the Human Rights Commission when compulsory jailing was introduced by the government of Carmen Lawrence in Western Australia. We sent to W.A. to try to talk them out of it. I've been speaking out against it ever since, spurred on by the experiences of our own and American Federal judges in having to enforce these awful concepts. Tragically, it took a young boy's death early last year to bring public and political attention to it. Whatever their actual words, compulsory jailing laws discriminate against Aborigines and were intended to do so. Why else would they provide a compulsory jail term for a fifteen year old Aboriginal youth who twice steals half a pizza because he is hungry but not for a thirty year old white adult who once, twice, three, four or five times fraudulently uses someone else's credit card to buy the pizzas to take to a party with friends?

I have recently taken out the details of ten of the recent compulsory jailings in the Northern Territory. They shame Australia. There is time today to take a close look at just one of the stories, that of a young Aboriginal lad named Chris, of Gunbalunya. This eighteen year old copped twenty eight days in jail for receiving, not stealing, two dollars worth of petrol. As far as I can find out, there have been at least five other jailings of young people for stealing or receiving similar amounts of petrol. That petrol was certainly not taken to fuel their company cars, it was to feed their addictions as petrol sniffers, about which our Prime Minister has learned only in the last few weeks. In the Northern Territory, we are jailing kids, not because they are dangerous criminals but because they are ill, and in the Northern Territory, magistrates hearing these cases are prevented by law from taking into account that these kids are petrol sniffers. What jurisdiction in Australia, indeed what country in the world would jail petrol sniffers? Where in the world is there such inhumanity? We are not yet quite in a position to lecture too many other countries.

These things should not be happening. The things in the past should not have happened. Together they are human rights, human wrongs, not for blame in the crude sense, but for the deepest regret and for a commitment to put them right as a matter of the utmost urgency. If they represent what some have called 'a black armband view of history' I for one wear it as a mark of sorrow and as a commitment to reconciliation.

Rather a black armband than a white blindfold to shut out the truth.

Kirsten Garrett: You're listening to a speech by Justice Marcus Einfeld who recently retired from the Federal Court.

Marcus Einfeld: In any civilised country, freedom from arbitrary detention is a fundamental human right derived from the common law. Yet successive Australian governments have detained for long periods of time, up to five years and more, asylum seekers who have arrived in this country without papers, having fled terror, persecution, hunger and other human rights violations in their homelands. Some detention centres in this country suffer overcrowding, a lack of natural light and recreation facilities, and have completely inadequate sanitary conditions. As our own human rights commissioners found, they are quite primitive, and not at all suitable for the lengthy detention of people who have committed no crime. I just cannot believe that the Minister has recently likened them to many Australian homes. And of course they are mostly sited thousands of miles from civilisation so as to add loneliness and isolation from relatives and support groups to the compulsory detention itself.

Currently some 407 children under the age of eighteen face this very horror. Fifty or so of them are facing it alone. Some have spent, and more will spend, the years from aged zero to five or three to eight or six to eleven in compulsory detention without having committed a single offence. Both the United Nations Human Rights Committee and our own Human Rights and Equal Opportunity Commission have condemned the Australian legislation as breaching fundamental human rights which it undoubtedly does. Unfortunately, such criticism has been brushed aside as bleeding heart stuff, not worthy of serious consideration. It is well recognised, and I of course accept, that States have the exclusive competence to regulate entry to their territory and to determine which non-citizens may remain. Immigration policy is an expression of sovereignty of the nation-state over its territory. However, refugees and those seeking asylum are not illegal migrants, a fact that various national authorities seem to have forgotten and the media, as a general statement, have never taken the trouble to understand. It is entirely in accordance with Australian and international law that people may seek refuge in this country from actual or threatened persecution of one kind or another either by invasion from foreigners in their own country or as is often the case, perpetrated or permitted by people including the authorities of their own country.


"Like 133 other signatory states to the 1951 Geneva Convention on the Status of Refugees, Australia is obliged under international law incorporated into domestic law by a voluntary decision of the Australian parliament, to provide sanctuary to refugees."

Like 133 other signatory states to the 1951 Geneva Convention on the Status of Refugees, Australia is obliged under international law incorporated into domestic law by a voluntary decision of the Australian parliament, to provide sanctuary to refugees. Australia was in fact one of the original drafters of the Geneva Convention, and on the 22nd of January 1954, became its sixth signatory.

These obligations came about because of the international community's concern for the protection of people who have left or remain out of their countries involuntarily. Guidelines issued by the United Nations High Commissioner for Refugees state that detention should be avoided, only in exceptional circumstances is a State entitled to temporarily detain an asylum seeker and detention should never be automatic, prolonged or imposed as a penalty or deterrent to others; it should certainly not be indiscriminate. Yet Australian legislation deprives all persons detained of the right to apply for and obtain release pending determination of their status, a right generally known as habeas corpus that has been provided for more than 400 years throughout the common law world, including to murderers, rapists and drug runners. If the case for the detention of asylum seekers is so good, why are our governments so unwilling to subject their detention to judicial scrutiny?

To detain such people without justifiable cause is bad enough in itself, especially as we do so quite indiscriminately of how young or old, sick or in need of special concern they are. But to detain for more than a few hours or days people who flee impossible persecution and unimaginable horrors, have risked their lives and perhaps paid all the money they had and more, to reach Australia in leaky river craft over thousands of kilometres of dangerous and unfriendly seas, is completely inhumane and without justification.

To detain children who may have lost their parents in the course of their journey is even worse. Yet we are doing it on this very day. And we are now the only developed country in the world which practices indiscriminate, indeterminate, incommunicado detention of asylum seekers. Alone of all the countries in the world, including Canada, the United States and the various nations of Europe, we have indiscriminately detained all of them, the elderly, the children, the sick and the pregnant at a cost, by the way, of around $50,000 per person per year while the Catholic Archbishop of Perth was offering free accommodation for all of them in Catholic homes while the review process ground on.

Faced with the fact that Australian law permits an application for refugee asylum by anyone claiming to be qualified, some have taken to describe the illegality committed by these people as arriving without papers. But if you are fleeing your own government because it is persecuting you, or will not protect you from the persecution of others in your homeland, obtaining papers from them is a nonsense, and Australia has no office to apply to for authorisation in most of the countries concerned. And if you are only a child following your parents ill-fated lead, how can detention possibly be just?

Some say that these people jumped the queue. Refugees do not form queues, they escape persecution and possibly death or starvation for themselves and their children, they do not fix or regulate the times for their terror. Yet apparently to deter applications for refugee status by people to whom we owe solemn, voluntarily undertaken legal obligations, we have introduced harsh laws with financial penalties that operate regardless of the merits of the individual cases concerned. These laws ignore the fact that people who leave countries in haste and fear will not be able to take their money and papers with them if they had any in the first place.

In reply to my debunking of the queue jumping argument over the years, the authorities have tried to argue that people they agree are refugees, who arrive without authorisation displace others who have gone through years of forms, interviews and waiting. The answer to that spurious response is twofold: first, Australia has an obligation to all refugees, not just some. Second, who is to say that a person arriving on our doorstep without papers or by other informal means is less likely to have suffered or be likely to suffer persecution than one living under someone's protection overseas whom the bureaucrats have taken years to process in procrastination and delay? The bureaucrats didn't think it was urgent for them to come, but the people who arrived here came with a sense of urgency because there was nowhere else to go, and even if there was a queue, the mixing of the onshore and offshore applications mean that there is no guarantee that an applicant would be admitted upon reaching the head of the queue.

Unlike the laws that apply to the worst of criminals, the Migration Act also enacts that asylum seekers have no right to legal advice or even to be informed about their right to apply for refugee status. The practical effect of this legislation is that even if detainees express grave fears about returning to their homeland, their failure to express in actual English words of which many have little or no knowledge, a desire to seek refugee status has in a number of documented instances meant that decisions are being made to deport without giving people concerned the opportunity to apply for protection. This practice is in defiance of Australian and international law.

And the final thing I want to say about this is this: from recent political propaganda in this country you would think that Australia had been swamped by boat people. It may interest you to know that since 1989 only just over 10,000 boat people have arrived on Australia's shores without visas, not the tens of thousands a year the preachers of doom and racial prejudice would have us believe. And we have given refugee status or entry on other humanitarian grounds, to nearly 2,000 of the 10,000, meaning that we have held and paid for all these people in detention for up to five and six years, without charge, trial or bail, and eventually found twenty per cent of them innocent of even the technical offence of arriving in our country without appropriate documentation. Many more would have been allowed to stay if the review system had not been manicured and skewed to encourage or predetermine refusals. Moreover, contrary to the scare campaign and playing to people's fears that we are being invaded by boatloads of gangsters from the Middle East, it should be recorded that of the recent arrivals of Afghans, Kuwaitis and Iraqis from Iran and elsewhere in the region, more than ninety per cent have been granted refugee status by the Department itself, or by the Refugee Review Tribunal. So much for the so-called invasion by criminal elements. So much for the absurd advertising campaigns, (a video of which I have on my mantlepiece at home) to remind me that characterise Australia as the land of snakes, sharks, man-eating crocodiles and killer spiders; that's what they're telling the world. It is amazing that somehow our Olympic visitors escaped unscathed. How do we ourselves survive? If we had a land border with a country of oppression as happens to Germany and Austria and many of the countries of Europe, our problem would be thousands of times worse. Our protection is our geography, not draconian laws or advertising slogans.

My questions are simply these: What have people fleeing persecution and the risk of injury, torture or death done to deserve this unconscionable treatment? If there are some cheats amongst the people seeking asylum in Australia, what crime have the rest committed to warrant the Australian parliament and its members from the two major political groupings taking leave of their senses? What are the crimes of the children and the elderly? The nicest answer is the opinion polls, which on this subject, like all such important humanitarian matters, leaders should lead, not follow.

In short, we continue to deny large numbers of people the very equal opportunity to a fair chance in life which we Australians like to call a fair go for all, which is not to say that Australia is not a wonderful country, I would say the best in the world, and that we are not generally a kind and generous people. It is just that we are not as good as we say or think we are. Indeed, while this situation persists, we are engaged in an empty, untruthful boast about our supposedly superior standards.

And so I conclude: we all want our kids to do and have better than we have had. If possible we would like them to live in a world of decency, peace and security, but the realities of the challenges they will face in adult life and the nasty events to which they will undoubtedly and regrettably be exposed, demand that they be given the widest opportunity to learn tolerance and understanding as an essential part of their personal development, and as a necessary element in the creation of their philosophies of life. This essential need involves imparting to children the equal worth of all people, and providing them with the knowledge and understanding to combat the lies and distortions that currently tend to swamp this saintly principle. For this development to occur, we here in Australia and the international community as a whole, need strong, moral and passionate leadership from all sides of the political, governmental, corporate and private spectrum, committed to human rights and justice and to fulfilling our obligations towards each other as mandated by morality and for that matter by domestic and international law.


"The solution is not more legislation but attitudinal change brought about by effort on the part of all of us. ...all of us, leaders and led alike, must take the bold, independent and much more difficult road of changing direction and doing it right for the people."

The solution is not more legislation but attitudinal change brought about by effort on the part of all of us. When the bureaucrats have erred, when the lobbyists and political chicanery dictate decisions which impose human wrongs and neglect human rights, when work pressures, political status or overweening ego threaten the attainment of justice, all of us, leaders and led alike, must take the bold, independent and much more difficult road of changing direction and doing it right for the people. This attitudinal change will not just happen, we the people must require it of our leaders, of our organs of government, of private enterprise, and of ourselves.

Jessie Street would have led such a campaign. Those who honour her legacy must surely take up the challenge. I urge you all to do so. What we are looking for is the emergence of a noble society, which seeks national dignity for itself and grants personal dignity to everyone in it. In the interests of those who need and cry out for our intervention, and of our own morality and sense of decency, we have not a moment to lose. Thank you.


Kirsten Garrett: Justice Marcus Einfeld, AO, who recently retired from the Federal Court of Australia.

Now a reminder that Background Briefing is interested in happiness, or hedonic psychology, as the academics call it.

At the beginning of the program we asked listeners to let us know what makes you happy. We will incorporate some of your comments into a program in a few weeks time on the economics and politics of 'hedonic psychology'; it's an old science but a new area of fascination for economists and politicians as they struggle and battle for your hearts and minds.

You can write to us or email with your brief comments about happiness, individualism and social engineering. Here again are the questions:

Stan Correy:

  1. Does your happiness have anything to do with government?

  2. Is your personal happiness tied up with economic well-being?

  3. Not considering your personal situation, how satisfied are you with life in Australia?

Kirsten Garrett: If you want to write a letter, send it to GPO Box 9994 in your capital city, or contact us through out website at and following the prompts to Background Briefing.

Co-ordinating Producer, Linda McGinnis; Technical Operator, Tom Hall; Research, Paul Bolger; I'm Kirsten Garrett. You're listening to Radio National.

Further information:

Amnesty International: 'Human Rights are Women's Right' (1995)

Justice Marcus Einfeld - The New International Order: The Human Dimension
Background Briefing from 1997

Life Matters: All of Us - Justice Marcus Einfeld

Marcus Einfeld on Ethics, Media and Public Relations - 31.5.2001