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'Equal laws and equal rights ... dealt out to the whole community'. How close 161 years on?

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Frank Brennan |  03 December 2015

Annual Dinner for Eureka's Children, Southern Cross Club, Canberra, 3 December 2015. Listen on Soundcloud

The Republic of Australia In Vitro

I ask you to join me in acknowledging and celebrating the first Australians on whose traditional lands we meet, and pay our respects to the elders of the Ngunnawal people past and present. How wonderful that we can gather in a venue carrying the name, 'The Southern Cross Club' to remember and celebrate the events at Ballarat in November-December 1854. When those 10,000 souls gathered at Bakery Hill on Saturday 11 November 1854 to propose a charter for the Ballarat Reform League, they affirmed that they had no wish 'to effect an immediate separation of this Colony from the parent country' but they stated a substantive precondition: that 'equal laws and equal rights are dealt out to the whole free community'. The hot-blooded Raffaello Carboni thought the list of demands was merely 'worn out twaddle imported from old England'. He thought that 'the whole of the grand talk of these Bakery reformers leagued together on its hill, can properly be framed in, on a "copper"; thus doing justice to all.' There is nothing peculiarly English nor lacking in grandeur and vision in the aspiration of 'justice for all'. A native Queenslander, I am not here in the National capital this night to suggest that Victoria secede from the federation, nor that Australia become a republic immediately even though it is the only self-evident course for an independent nation like Australia, a nation which has no interest in fostering its own bunyip aristocracy and which has outgrown its connection to a royal family on the other side of the globe. Though a strong republican, it might be my Canberra domicile and my Queensland origins which precludes me from endorsing Professor John Molony's claim that 'It is no idle dream or flight of fancy to believe that the day will yet come when an Australian republic will be proclaimed at the place where the diggers died for its ideals'. When, and not if, Australia becomes a republic, the proclamation will first be rightly made here in the national capital, and not on 3 December, the anniversary of the Eureka Stockade, though of course a later re-enactment of the declaration might be made at Ballarat on this anniversary. More appropriate national dates for the initial proclamation would be 9 July, marking the passage of the Commonwealth of Australia Constitution Act in 1900, or 17 September, marking the Queen's declaration by proclamation in 1900 that the Commonwealth be constituted, or 1 January marking the day in 1901 when the Commonwealth of Australia came into being. The most sensible date would be 1 January, the only problem being that most of the nation is at the beach or fighting bushfires and wishing they were at the beach.

Professor John Molony and Frank BrennanStrangely even though both the present Prime Minister and the Leader of the Opposition support Australia becoming a republic and even though the Prime Minister previously chaired the Republican Advisory Committee set up by Prime Minister Paul Keating, there is not yet a mood for change. But the substantive precondition for maintaining our present constitutional arrangements still stands — the demand of justice for all. And 161 years on, we still need to ask 'if equal laws and equal rights are being dealt out to the whole free community'. It is no disrespect to those 10,000 who gathered at Bakery Hill 161 years ago if we note that women, Aborigines, and Chinese diggers were not present or represented in any numbers or perhaps even at all. 161 years on, I would like to apply the scrutiny of equality to those agitating for same sex marriage, to Aborigines seeking penal justice and constitutional recognition, and to asylum seekers seeking dignified treatment on their arrival in Australia.

Ballarat today

First, let's place ourselves in context contemplating contemporary Ballarat. Even for a native Queenslander resident in the national capital, Ballarat has featured large in my consciousness and in the national narrative this past year for two reasons — one joyous, and the other profoundly distressing.

The first reason was the magnificent ride by Michelle Payne, the winning jockey on Prince of Penzance in this year's Melbourne Cup. She grew up in a family of ten kids who'd lost their mum in a tragic accident. She shared the win with the strapper, her brother Steve with Down's syndrome. The bond of love and solidarity between them is such that she was able to joke:

We spent so much time just mucking around, playing cards, playing games and I always treated him as if he was normal because I didn't know anything else. And if ever we were getting in trouble for doing something, they'd say — they'd tell me off, 'You should know better,' you know, 'He's Down syndrome.' And then after a little while he cottoned onto it and if we were getting in trouble, he'd get in first and say, 'I didn't know; I'm Down syndrome.' (Laughs) And I'd be like, 'He knows! That's not fair!'

Michelle Payne knew she was a woman struggling to make her mark on what was still a man's track. As she said straight after the race:

It's such a chauvinistic sport. I know some of the owners were keen to kick me off Prince and John Richards and Darren stuck really solid with me. And I just want to say to everyone else can get stuffed 'cause they think women aren't strong enough, but we just beat the world.

A fair go for Steve, a fair go for Michelle, and a fair go for all women is the stuff of modern remembrance and celebration of Eureka. The solidarity and faith in the underdog displayed by John Richards and Darren are the hallmarks of the modern Eureka spirit.

The second reason has been the long painful struggle by men in Ballarat who were sexually abused in the Catholic Church when they were children. Think only of Peter Blenkiron who appeared recently before the royal commission. He was abused at 11. It took 26 years for the damage in his life to boil over and for him to tell others and to seek help. But then he looked out for his mates expending so much energy in helping other victims in need. He was instrumental in setting up a support group for the victims of child sexual abuse in Ballarat. He told the commission, 'We normally met in a cafe. We didn't talk about the abuse, but I feel that we started to normalise it — the effects of the abuse. Over time, this group got bigger.' He told the commission:

To hear from people that have been through it and have recovered is a massive gift, to know that somebody can get through those darkest of darkest times, because it gets worse before it gets better. I hope that, in telling my story, other people might be assisted, although I am by no means healed. It's not from lack of trying. I think that the key points are not to be isolated, but to have available professional counseling assistance and community support. I was at my worst when I was alone in my own private hell. I believe I was most at risk of suicide when I was isolated rather than connected and unable to understand what was going on by myself. I hope that, by telling my story, others might reach out for help, even if they are okay for the moment, just on the off-chance it may help to prevent disaster in the future.

Standing by your mates, being there for them, and standing up to the institution seeking justice for those who are victims — the insignia of the contemporary Eureka tradition.

So I salute Eureka's children and those good citizens of Ballarat privileged to carry the story, being resident in the environs of Bakery Hill and the site of the Stockade. I salute those like Fr Patrick Smyth of old who left no stone unturned seeking resolution and reconciliation of outstanding claims. You will recall that Fr Smyth wrote to Governor Hotham on 30 November 1854 only to receive a response next day expressing thanks for his 'earnest efforts which, in your professional calling, you are making to allay the disturbances.' The Governor's secretary J. Moore added an ominous note: 'Unless the government enforce the laws which may be in operation, disorder and licentiousness must prevail.' The day before the troubles, Fr Smyth went inside the Stockade. Peter Lalor agreed to his speaking to those Catholics under arms. Smyth warned of government reinforcements about to arrive and he 'reminded them that they were Christians; and expressed his earnest desire to see all of them at Mass on the following morning'. Carboni thought the advice was well received but 'it did not thrive, was it because you sowed it on barren ground?' None of these men made it to mass next morning. The first shots were fired at 4.45am that fateful Sunday morning. As John Malony says: 'by about 5am on Eureka defence was over; what followed was sadistic retribution and bloody vengeance'. By the time mass would have been over, 22 diggers and 5 troopers lay dead.

The contemporary calls for equal laws and equal rights in Australia

Same Sex marriage

Contemplating, 'Equal laws and equal rights...dealt out to the whole community', I ask: 'how close are we 161 years on?' The equality issue of the moment is same sex marriage being promoted with the label 'marriage equality'.

Many same sex couples and their supporters claim discrimination because their relationships cannot be recognised as marriage under the Commonwealth Marriage Act. I have long claimed that our federal politicians should have a conscience vote on same sex marriage. The Labor Party muddied the waters at their national conference in July 2015 by cobbling together a compromise motion allowing a conscience vote only until 2019, with members then being bound to support same sex marriage after the election after next.

Given Labor's abandonment of a conscience vote until the matter is finally resolved on the floor of the Parliament, the Coalition found itself more free to make its own political calculations about the utility of a conscience vote on its side of the chamber.

Given developments in countries like Ireland, the UK, Canada, New Zealand and the USA, I have accepted the inevitability that civil marriage in Australia will ultimately be redefined to include committed same sex relationships.

Given the increasing number of children being brought up by same sex couples, it is desirable that the state take away any social stigma against same sex parents. Given the ageing population, the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other. Given the harmful effects of homophobia, the state has an interest in encouraging broad community acceptance of those members who are homosexual. Laws and policies can help in this regard.

It is one thing for Commonwealth law to recognise same sex unions as marriages. It is another thing to require all persons, regardless of their religious beliefs, to treat same sex couples even in the life and activities of a church as if they were married in the eyes of their church.

The religious freedom issues involved in the same sex marriage debate are about more than making space for religious celebrants determining who they will or will not marry. Though the issues would not necessarily be covered by amendments to the Commonwealth Marriage Act, the passage of those amendments will be the trigger for revisiting and redefining these issues.

A plebiscite on this issue is a waste of time and risks turning very nasty, especially now that both the Prime Minister and the Leader of the Opposition support same sex marriage. The plebiscite advocates were opponents of same sex marriage who thought it would give them more airplay back in the days when the prime minister was a strong opponent of same sex marriage. With Malcolm Turnbull and Bill Shorten on the same page, the opponents will get little airplay. While the debate rages, it is only appropriate that religious groups like the Catholic bishops be able to evangelise their position, especially their concern that children in future be assured a known biological mother and a known biological father. To date, the bishops have spoken cautiously and respectfully. They know their views are not in fashion. It is ridiculous to have national debate on a plebiscite stifled by assertions that church teaching on marriage is offensive to some individuals, and likely to cause offence to the so-called 'reasonable person'. National debate should not be put on hold while an Anti-Discrimination Commissioner decides whether it is arguable that a reasonable person might be offended. The Commissioner and her tribunal are not the thought police. Or at least, they shouldn't be. The Commissioner's processes should not be used to shut down national debate about the desirability of profound social change, silencing one side of the plebiscite debate while the other side is free to be as offensive to religious folk as they will, given that there is no state enforcer of religious niceness - and neither am I campaigning for one. Many of those who take offence are those who think churches should butt out of all moral debate in the public square. On this one, we should all let a thousand flowers bloom. When the plebiscite vote is carried in favour of same sex marriage, as I am confident it will be, there will still be a need for our Parliament to legislate complex provisions protecting religious freedom and expanding the freedom to marry. Those schooled in the Eureka tradition would always have seen this as an issue for parliamentary deliberation and free public debate, provided the parliament was truly representative of the community. A parliament elected by universal suffrage, not a plebiscite, is the preferred Eureka instrument for political and legislative change. It's only a parliament, not a plebiscite, which can legislate the complex details of equality and the protection of all rights, including the right to religious freedom.

Aboriginal Australians

Last month, the High Court of Australia upheld the validity of a Northern Territory law which the government described as a form of paperless arrest. The Attorney General described the law as 'a form of catch and release'. The Northern Territory's daily imprisonment rate is 904 people per 100,000, compared to the national average of 194. 85% of prisoners are Aboriginal even though they are only 30% of the population in the Northern Territory. Police were instructed that the new law allowed them to pick up drinkers in public places, issue them with an infringement notice which was to be placed in their personal effects, and then put them in the slammer for four hours or until they sobered up, whichever came later. The High Court by 6-1 upheld the validity of the law while restricting its operation in part. The one dissenting judge Justice Gageler sounding a warning note to all those who espouse the human dignity and human rights of all. He wrote:

This is not an occasion to mince words. The form of executive detention authorised by [this law] is punitive. Because it is punitive, the imposition of the detention involves the exercise of a function which our constitutional tradition treats as pertaining exclusively to the exercise of judicial power.

Justice Gageler J held:

[t]he result of any prosecution which will occur ... will be an adjudication which determines the criminal liability of the person. Whatever the outcome of that adjudication, the person will already have been punished through the executive detention that has occurred. No subsequent action by a court can change that historical fact.

Courts of the Northern Territory are thereby made support players in a scheme the purpose of which is to facilitate punitive executive detention. They are made to stand in the wings during a period when arbitrary executive detention is being played out. They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice.

The scary aspect of this decision is that the other six High Court judges thought the law passed muster because it did not involve police exercising judicial power and it did not interfere with the integrity of the courts. Now these are the country's finest judges. Because we do not have any form of Human Rights Act or any bill of rights, the judges are not able to address the fundamental question: are the rights and dignity of these persons being trampled by such a law? They are restricted to asking a secondary question: if the law works an interference with judicial power. Frankly, who cares? Why can't our judges be required to address the primary question, if the law denies someone's human rights, thereby forfeiting equality for all. When considering the position of a person being detained for four hours, being issued with an infringement notice and then paying it, Justice Keane one of the majority judges observed: 'So, this is a case where someone simply accepts the notice. So, the Court is not involved at all. On one view of it, the punishment was rightly imposed because it was not contested. [The] four-hour period leading to a decision to issue an infringement notice which is accepted as rightly issued.' Under this law a person can be imprisoned for four hours for a simple offence which does not even carry a prison term. And guess what, that person is usually an Aboriginal. When one Aborigine arrested under this scheme then died in custody, the coroner observed:

Kumanjayi had the right to die as a free man and in the circumstances, he should have done. In my view, unless the paperless arrest laws are struck from the Statute books, more and more disadvantaged Aboriginal people are at risk of dying in custody, and unnecessarily so.

Justice will grow only out of recognition where Aborigines and Torres Strait Islanders have a place at the table of public deliberation whenever the State is contemplating laws or measures which will be applicable only to them or which will have an inordinate impact on them. Those laws and measures always need to have due regard for Indigenous cultures, languages, and heritage, and the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters. Such recognition is now provided in all State Constitutions except Tasmania. A Tasmanian parliamentary committee is presently considering proposals for such recognition. Recently the Western Australia Parliament embraced the proposal for recognition put by Indigenous member for the Kimberley, Josie Farrer who commenced her speech in the Gidja language. Moving the Constitution Amendment (Recognition of Aboriginal People) Bill 2015, she told Parliament:

Despite all our differences, I believe that ... . Australian people understand better than anyone the value of mutual recognition, acknowledgement and respect. ... . This is an opportunity for all Western Australians and all members of Parliament to acknowledge what has happened in the past. However, we also need to stride forward. In my second reading speech, I called on members to grab this opportunity for us to stride into the future, not to shuffle forward with eyes closed to the truths of the past. I stated that this is the chance to come together as a Parliament and as a community in a sincere, mature and heartfelt spirit of reconciliation.

The preamble of the Western Australia Constitution now concludes with this paragraph:

And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia:

Such an acknowledgement and such a commitment provides the recognition which is the prelude to procedural and substantive justice — giving to each their due in the polity, espousing the place of all citizens.  

The children of Eureka should be well pleased that there are now four members of the Australian parliament - Ken Wyatt, Nova Peris, Jacqui Lambie and Jo Lindgren - who proudly claim an Indigenous heritage, representing all their constituents, Aboriginal and non-Aboriginal, in our Parliament. While making no claim to speak for Indigenous Australians, I do claim that I, like all Australians, have a place at the table seeking to articulate the contours and prospects for Indigenous recognition in the Australian Constitution, while also suggesting why it matters to all of us. The lesson of the 1967 referendum is that no change is merely symbolic. Even the most modest constitutional change will contribute to substantive policy change, according procedural and substantive justice to the First Australians and all who claim Indigenous cultures, languages and heritage and their continuing relationship with their traditional lands and waters.

We should at least remove the outdated notions of race in our Constitution and acknowledge the historical facts, the present reality, and the legitimate distinctive aspirations of Indigenous Australians living in the post-colonial Australia. Building on the work of the 2012 expert panel chaired by Patrick Dodson and Mark Leibler, at the very least we need to provide:

We, the people of Australia, recognise that the continent and the islands of Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

We acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

We acknowledge and respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

This acknowledgement has some similarities to the preamble proposed by ATSIC to the Republic Advisory Committee which was chaired by Malcolm Turnbull and of which Lois O'Donoghue was a member in 1993. Mr Turnbull's committee noted, 'During the public meetings held by this Committee it was often urged that the Constitution should include reference to Australian values of independence, belief in parliamentary government and recognition of prior Aboriginal presence.' The committee set out a number of draft preambles as illustrations while noting that 'none of them is necessarily endorsed by the Committee'.

The Commonwealth Parliament's power to make laws should include the power to make laws with respect to the very things we want to acknowledge, and the power should be restricted so that it can be exercised only benignly. Any forthcoming Constitutional Convention could consider an amendment of section 51(26) so that the Commonwealth Parliament will have power to make laws with respect to:

the preservation, protection and enhancement of the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters.

We also need to minimize the prospect that a future Commonwealth Parliament might legislate in a racially discriminatory way against Aborigines. I would suggest an amendment of the Acts Interpretation Act:

15AAB

In interpreting a provision of an Act, the interpretation that would best achieve consistency with sections 9 and 10 of the Racial Discrimination ACT 1975 is to be preferred to each other interpretation, unless the Act specifies that sections 9 and 10 of the Racial Discrimination ACT 1975 are not to be considered when interpreting a provision of the Act.

We need to ensure that Aborigines and Torres Strait Islanders have a place at the table. The National Congress of Australia's First Peoples or some other national indigenous body should be set up with a statutory charter being the 'go to' body for Parliament to consult and to co-ordinate consultation with affected groups when Parliament is considering legislation specific to Aborigines and Torres Strait Islanders. Just as the Eureka miners expected to be consulted and to have a place at the table of parliamentary deliberation when licence fees and pastoral leases were being determined, so too Aborigines and Torres Strait Islanders rightly expect a place at the table.

Asylum seekers

In a globalized world with 51 million displaced people, the Eureka spirit also needs to inform our treatment of those who flee to these shores seeking protection.  Our treatment of asylum seekers highlights the deficiencies in Australia's providing equal laws and equal rights for all. Early this year, in CPCF v Minister for Immigration and Border Protection, the High Court of Australia could find no grounds for invalidating the Australian government's holding of 157 Tamil asylum seekers on an Australian vessel on the high seas in the Indian Ocean for a month while Australia attempted to negotiate their return to India from whence they had set sail.

All seven High Court judges made it clear that there is next to nothing that can be done in the courts to question the government's approach. It has got to the stage that it is lawful, acceptable to government, and hardly a matter of concern to the Australian community that 157 asylum seekers, including children, can be kept in windowless detention on an Australian vessel for a month on the high seas in the Indian Ocean. 

The Australian parliament has been so specific in codifying the law of asylum at the frontier that there is nothing for the judges to do except apply the letter of the law, regardless of the general principles of international law.

Given that both sides of politics are committed to stopping the boats, we need to find a better way than having to maintain the barbaric arrangements on Nauru and Manus Island and allowing government to run undercover turn backs and returns to Indonesia or wherever without adequate safeguards for asylum seekers, even if they no longer be in direct flight from persecution in their home country.

We need to negotiate transparent agreements with Indonesia and India for the safe and dignified return of asylum seekers who are not in direct flight from persecution in Indonesia or India. Until this is done, we will continue to violate the human rights of asylum seekers on the high seas and then in places like Nauru, Manus Island and Cambodia where our government wants to send them.

The report of the expert panel led by Sir Angus Houston in August 2012 stated:

The Panel is of the strong view that there is a range of conditions that need to be fulfilled for the safe and lawful turnback of boats carrying asylum seekers. The Panel does not believe those conditions currently exist, although they could at some stage in the future, in particular if appropriate regional and bilateral arrangements are in place.

I have accepted the decision of the Abbott-and-now-Turnbull Government and the Shorten Opposition to stop the boats provided two conditions are fulfilled: (1) an immediate assessment is made that no person on board is fleeing persecution IN Indonesia; and (2) the boats can be turned back legally and safely. I would prefer that those intercepted were picked up and flown back to Indonesia safely and decently.

Our Parliament should demand that the government make clear how turnbacks are now safe and lawful. The Labor Opposition is saying that it will retain the option to turn back boats only where it is safe to do so. Is Labor satisfied that the boat which disappeared from sight just off Christmas Island two weeks ago was safely turned back? How would they known unless they asked? Before that boatload of asylum seekers turned up again in Indonesia, Greens Senator Hanson Young asked the Attorney-General: 'I would like to ask the minister if he can please explain the sighting of a boat just three days ago, when a refugee boat reportedly made it to within 200 metres of Christmas Island. Could the minister explain why this boat was there, how many people were on it and where it is now?' George Brandis, the Attorney-General, refused to answer, pleading that it was an operational matter. And the circus of Australian democracy and the so called rule of law moved on.

If the boats have stopped, then there ought to be an ethical dividend. Close Nauru and Manus Island. Get back to treating decently those asylum seekers in our midst. Detention only for the purpose of identity, health, and security. Allow people to work and to receive an adequate level of social security. Grant them permanence in their lives.

A republic of equal laws and equal rights by 2020

Without a bill of rights, our courts are isolated from all equivalent courts in Ireland, the UK, New Zealand, Canada and the United States. There is thus less prospect of a judicial cross-fertilisation of ideas about how best to define human rights and to enhance human dignity, freedom under the law. Our courts are now hamstrung, having to interpret increasingly draconian legislation through the prism of principles restricted to judicial power and the integrity of the courts. The 157 Tamils held on the high seas for a month and the Aborigines being held in prison cells tonight in Darwin for offences which do not even carry a prison term are bold reminders to you the children of Eureka that the call to make parliament accountable is as relevant as ever.

My fellow Queenslander John Uhr who like me is domiciled here in the national capital has set out a Eureka theory of politics insisting on three principles:

  • sovereignty rests with the people

  • the system of government must be committed to public integrity

  • those in high public office are 'caretakers of the public trusts delegated by the people'

Let's commit ourselves afresh to these principles. Tonight, gathered here in the Southern Cross Club in the national capital, gathered as Eureka's children: 'We swear by the Southern Cross to stand truly by one another and fight to defend our rights and liberties'. We affirm that there is room for everyone under the Southern Cross. I hope you will return to Canberra carrying the Southern Cross flag when we proclaim the Australia Republic on 1 January 2020 which will be two elections after Australia last had a monarchist leader of a major political party. Tony Abbott is the last of his type. Whether the prime minister honoured to witness the proclamation is Malcolm Turnbull, Bill Shorten or another matters not. They will have had their opportunity to contribute to the national journey towards complete national independence under the Southern Cross. On 3 December 2020, you might then gather at Bakery Hill, the Camp and Eureka honouring those who are 'the standard bearers of a legend, fleshed out through the years and on into the future wherever the name Eureka is spoken'. A Queenslander domiciled in Canberra, I would love to join you for the occasion. Thank you for the privilege of joining you, Eureka's Children, on the anniversary of the Stockade which charted the course for our distinctively Australian republic which aspires to deal out equal laws and equal rights to the whole community.

At the annual Eureka Dinner, Frank Brennan was presented with the Eureka Democracy Award in recognition of his endeavours which have contributed to strengthening democratic traditions in Australia. Pictured: Professor John Molony with Fr Brennan.

 



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Congratulations to Frank Brennan on this analysis and development of the Eureka Stockade history into contemporary society.

Neil Riethmuller 04 December 2015

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