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Julian Burnside, QC.

Presenter: Monica Attard

MONICA ATTARD: This week we revisit an interview with human rights lawyer Julian Burnside QC about his passionate, and at times controversial, defence of unpopular minorities.

The prominent barrister speaks about the great personal cost of speaking out on political issues - a fact detailed in his new book, Watching Brief. He expresses some sympathy for the position of his colleague, Peter Faris QC, who was under investigation after speaking out about drug use amongst lawyers, but Julian Burnside has some views on the topic that some might find surprising.

I began by asking Julian Burnside about what he says is the very personal toll he's paid for his public advocacy.

JULIAN BURNSIDE: Well I've lost quite a few friends because for the first few years at least a lot of people still accepted everything the Howard Government was saying and so I guess my views seemed a bit strange. And the second thing was that, you know, quite a, whereas I used to get most of my work from the big firms at the big end of town working for big corporations, a number of those firms, I think, found it politically unwise to keep briefing me and so for a few years at least, those people disappeared and briefed other people.

MONICA ATTARD: Alright and...


MONICA ATTARD: ...why did they find it inappropriate to be briefing you?

JULIAN BURNSIDE: Ah, because the Federal Government hands out millions and millions of dollars worth of legal work to the private profession every year and the big national firms get the lion share of that work. Now, rightly or wrongly, the Government is perceived as being somewhat vindictive so that if you are wanting more work from the Government it's not a smart move to be seen to be briefing one of the Government's critics.

MONICA ATTARD: And was that ever told to you explicitly?

JULIAN BURNSIDE: It was never told to me explicitly but it was a view which I formed just by coincidence of events and it was confirmed a few years later when a junior employee of a national firm rang me up because he wanted to write a piece for the Solicitors Journal about Spare Lawyers for Refugees, which is a pro-bono group I set up to help manage the asylum-seeker cases that were coming through in large numbers.

He wrote the piece. It wasn't about my views. It wasn't about me, particularly, it was just about this group of pro-bono lawyers that I'd set up and administered. When he finished the article and it was published, he sent it to me with an apologetic note pointing out it was not published over his name because his firm does a lot of government work and one of the Sydney partners in the firm thought it was undesirable that his name be connected with my name in an article in the Solicitors Journal.

MONICA ATTARD: So you're assuming then that that is part of the reason why work from the private firms to you has dried up?

JULIAN BURNSIDE: Well I assume that and it's notable that since mid-2005, when Petro Georgiou and the other dissident backbenchers managed to push through some reforms to the system, the big end of town came back. So (chuckles), you know, I... there may be other explanations but I thought that probably the things were connected.

MONICA ATTARD: So the work has come back to you?


MONICA ATTARD: Now Julian Burnside, can I ask you as well, in your book you say that the attacks on you by colleagues, by Liberal Party MPs and by what you call the pro-Howard commentariat, has added a new dimension of personal discomfort to your life.

JULIAN BURNSIDE: Yeah. Well, you know, I mean being...

MONICA ATTARD: What do you mean by that?

JULIAN BURNSIDE: Being publicly criticised for expressing honest opinions is a new experience for me. I mean, maybe I've lead a sheltered life but I hadn't experienced before and it's particularly annoying when the pattern, especially amongst some of the columnists, has been: "Burnside says this. That's idiotic for these reasons. What a fool he must be," where the starting proposition is actually a distortion of what I've been saying.

You know, if they would actually attack the arguments I do make, I wouldn't have a problem with that and in particular I'd be grateful if they can demonstrate why I'm wrong, but to distort your argument in order to knock it down is a different thing. And of course, for the average reader, they just take a face value what they read and they think, "Oh yeah well Burnside must be an idiot."

But then, but then, of course, there are other people who sort of approach the thing agreeing with me already and so I guess they don't pay much regard to the people who criticize my views.



MONICA ATTARD: So playing the man not the ball is what annoys you?

JULIAN BURNSIDE: Um, ah well, all I'm saying is it was a novel experience. Yeah, but I guess there's a bit of playing the man.

MONICA ATTARD: Mm. Do you think it's appropriate though for a member of the bar to be commenting publicly on political issues? Even though you say it's an ethical issue which has a political dimension, but it, at the end of the day, I think most people would see it as a political issue. For example, the treatment of asylum-seekers.

JULIAN BURNSIDE: Well that's pre-eminently an ethical issue. I mean, the way in which a society, with the weight of the Government, treats innocent human beings. That's an ethical issue. Of course in intersects with politics because it's the politicians who are ultimately responsible for what's done and politicians who are responsible for whether it's changed.

MONICA ATTARD: So if you see it as an ethical issue would you then expect the Labor Party, if elected to power, to overturn the current laws?

JULIAN BURNSIDE: Well I would hope so but it has to be remembered that they introduced the current laws. They didn't politicise them the way the Howard Government did post-2001 but, you know, look, I'm sort of cautiously optimistic that Kevin Rudd's influence might see an amelioration of our approach to asylum-seekers.

They have said that they will abolish the Pacific Solution, which is all to the good, 'cause that's really just the most shameful extremity of our treatment of asylum-seekers.

MONICA ATTARD: But back to that question, do you think it's appropriate for a member of the bar to be commenting publicly on these sorts of issues?

JULIAN BURNSIDE: You sound exactly like the wife of a colleague of mine who asked me that question at a fancy social function some years ago and on the spur of the moment I said, well do you think it's appropriate to know that these things are going on and stay silent? And for me that's a sufficient answer because I do see it as an ethical problem.

MONICA ATTARD: So in your view there are some things about which one can't stay silent?


MONICA ATTARD: Now, what do you make of the Victorian Bar Association's investigation into the comments by another of, another barrister - one of your colleagues - Peter Faris?

JULIAN BURNSIDE: Look, I'm curious about it actually. I only learned about it in the last day or so and I'm a little bit surprised. I'm disappointed by what I've read about statements attributed to members of the Bar's executive but then, I don't know all the facts.

So I'm, I personally don't have a problem with Peter saying the sorts of things that he's said. I don't agree with him but I don't have a problem with him saying them.

MONICA ATTARD: Of course he's talking about lawyers who take drugs. Do you think he has a public duty to bear witness to that?

JULIAN BURNSIDE: No because he has already said that he is not bearing witness to anything because all he's doing is speaking about anecdotal material that he's received. Now, any lawyer knows that anecdotal evidence is usually pretty unreliable. So, you know, no. I don't think he has, I certainly don't think he has an ethical obligation to raise the matters that he's raising but neither does he have an ethical obligation to keep quiet about it.

MONICA ATTARD: Because there are people in the professions upon whom the general public rely and lawyers are amongst them. If these people do indulge in drugs, I would have thought there is a great public interest in standing up and facing that. Would you agree?

JULIAN BURNSIDE: I would agree with that with one qualification and the qualification is if it's affecting their professional performance.

MONICA ATTARD: And if it's not, not to worry about it?

JULIAN BURNSIDE: Well, yeah, to be honest. If it's not affecting their performance well then I don't think that there's a particular public interest in the matter. I mean, the public certainly has an interest in knowing that they're getting a proper professional performance from any professional they engage but if a lawyer or a doctor or an architect or an engineer has odd private habits that don't affect their professional performance, well then I don't think that the public has an interest in knowing about that apart from the prurient interest of learning facts like that about people they don't know.

MONICA ATTARD: So if we have lawyers breaking the law there's no public interest in discussing that or knowing about it?

JULIAN BURNSIDE: Well, if you take that to its extreme you'd say that the public should be concerned about every lawyer who speeds or gets pinged for .05 and so on down the line. I mean I understand your point but I guess it's a question of degree.

MONICA ATTARD: And taking drugs is at which end of the scale then, if you put them on the scale of the crimes that you've just spoken about?

JULIAN BURNSIDE: I suppose the only proper answer to that is that you look at what the Parliament has set by way of penalties in order to assess the Parliament's view of the seriousness of various crimes.

MONICA ATTARD: And I assume, though, that the crime for drug taking would be greater than the crime for speeding, greater than the penalty for speeding?

JULIAN BURNSIDE: Um, well I'm not sure. It's not my area of law but I think if you're caught smoking a marijuana cigarette, you'd probably get off lighter than if you're caught driving over .05. Now...

MONICA ATTARD: But if you're caught taking cocaine, for example, presumably you'll get more than you'd get for speeding?

JULIAN BURNSIDE: That may be so. It would depend on the speed I suppose but I mean, there have been cases reported in the press over the years of people caught possessing or using cocaine or heroin or amphetamines and this and that, and they get $1,000 fine. Now it's, you know, a person who is caught at, say, .07 or .08 would heave a sigh of relief if they got off with a $1,000 fine.

In fact, it's a curious thing, if we are concerned about the effect on a person's performance, it's a curious thing that there's such a disparity in the treatment of alcohol abuse and the abuse of other drugs. Now I know that one answer to that obviously is alcohol is legal and tobacco is legal but a lot of medical opinion which suggests that the society's response to drugs ought to be slightly differently calibrated.

MONICA ATTARD: Does it strike you as odd that the Victorian Bar Association, which presumably, you know, upholds freedom of speech as a central tenet, was investigating whether he was a fit and proper person to be a member of the association...

JULIAN BURNSIDE: It did surprise me.

MONICA ATTARD: ...for speaking his mind?

JULIAN BURNSIDE: It did surprise me.

MONICA ATTARD: Now, let's move on. You say the Howard fan club in the media, who you name as Andrew Bolt, Piers Akerman, Gerard Henderson, Alan Jones and others, attack you whenever they could. Now you say you're grateful to them.


MONICA ATTARD: Why, why are you grateful?

JULIAN BURNSIDE: Well because whenever you get a response from people like that I had the impression that maybe I was onto something that mattered. If someone gets up and makes noises that don't hurt anyone well then, they're probably going to ignore it. If they respond sharply, as each of them did from time to time, then I figure that maybe it's perceived that I've said something that could be damaging and so either the message has to be put down or else the messenger has to be put down.

But it did give me some sense of when I was touching a nerve and that's always very useful, especially if you're a political naïve as I am.

MONICA ATTARD: Mm. Did you have any regrets about wading into political life in this way? I mean, do you look back and think that perhaps, you know, you could have done something differently or that it wasn't the right thing to do at the right time?

JULIAN BURNSIDE: I have no regrets at all except that if I had been more politically savvy I might have approached the matter slightly differently. You know, first time involvement in something like this, it would be pretty unlikely that I pushed all the buttons properly.

MONICA ATTARD: What would you have done differently?

JULIAN BURNSIDE: I'm not sure. I haven't thought that through because I don't really plan to spend a life of political engagement to be honest.

MONICA ATTARD: So you're hoping things will change?

JULIAN BURNSIDE: I'm really hoping the treatment of asylum-seekers will change. I'm hoping that our approach as a society to notions of social justice will change. You will have noticed in the book that only a third or a quarter of it is to do with asylum-seekers. Really the dominant message in it is about the importance of the justice system generally and social justice as one outcome of the justice system working properly.

One of my big complaints is that legal aid and community legal centres are so seriously under funded. What follows from that is that the promise of access to justice, which is so important, is really an illusion. You know, access to justice is no good if you can't afford it and if you can't afford to go to lawyers and if you are not eligible for legal aid then access to justice is just a hollow promise.

MONICA ATTARD: Well actually that brings me to a question that I was going to ask you, which was the rumours that have been spread around about you that you were standing up for refugees to build your practice and make money.

JULIAN BURNSIDE: (laughs) Yes! Well, let me tell you, I have never received any payment for any refugee case that I've ever done and I never intended to. Apart from anything else - of course the refugees have no money - legal aid is essentially prohibited from providing aid to refugees except in, on an untested point.

And I can only think of one human rights case that I've done in the last 10 years where I got paid and that was a four or five month trial that had, was a test case and it had government funding. So I got paid for that although the payment rate was about 15 per cent of my normal commercial rate - so not exactly the way to get rich.

MONICA ATTARD: And what was the case?

JULIAN BURNSIDE: Oh the Stolen Generation case in Adelaide.

MONICA ATTARD: Now despite claims that you're a rusted-on Labor Party member, you're just as critical of the Opposition, as I see it, when it comes to human rights, were you surprised to hear Kevin Rudd carpet Robert McClelland, his Shadow Attorney-General, over the issue of capital punishment?

JULIAN BURNSIDE: Yes I was. I was very disappointed because I think both parties, to my understanding, have a policy which is opposed to capital punishment and if you're opposed to capital punishment on grounds of principle rather than pragmatism well then you oppose capital punishment universally.

You may not be able to do much about it in other countries but at least you ought to oppose it. Now, I thought it was very tactless of McClelland to say what he did when he did because it was so close to the anniversary of the Bali bombing and so to raise the question of the death penalty for the Bali bombers was tactless.

But equally I think it was wrong of Rudd not to come out, what he should have said ideally - and let's put aside the fact that there's an election campaign going - but what he should have said in a perfect world is: "I agree entirely with McClelland's position that capital punishment is always wrong but it is distressing and tactless to mention it right now when the family of the deceased are so focused on the matter.

MONICA ATTARD: Now you've recently called for a bill of rights in Australia. What practical difference will it make to our lives do you think?

JULIAN BURNSIDE: A bill of rights, and let's make it clear, I'm not talking about a US-style bill of rights but a modern bill of rights, of the sort that Victoria has and the ACT has. I'm talking about a statutory bill of rights so that Parliament can overwrite it if it needs to.

The practical difference is that it would provide a legal tool kit that enabled lawyers, courts and parliamentarians to mount plausible arguments against legislation that unreasonably interferes with recognised human rights.

Take a single instance. The Al-Kateb case, which most people have never heard of, was a case decided a couple of years ago by the High Court. Al-Kateb had come to Australia asking for asylum. Under the mandatory detention laws he has to be detained until he gets a visa or until he's removed from Australia. Well he was refused a visa but couldn't be removed from Australia because he's stateless.

Now, there's a bit of an anomaly. He hasn't committed an offence. He's not considered to be a risk to anyone but the only two ways out of detention are closed to him. What to do? Now, they could have easily introduced a new visa category to deal with an anomalous case like that but instead the Government argued all the way to the High Court that that man, innocent of any offence, can be held in detention for the rest of his life. And the High Court, by a majority of four to three, held that that's what the law means and it's constitutionally valid.

Now I think... I can hardly think of a more shocking proposition than that an innocent person who's not a risk to anyone can be detained for life. You know, it offends all our basic instincts about human decency.


JULIAN BURNSIDE: A bill of rights, if it existed, would have enabled the court to say that the words having that meaning are not valid. You know, at that extent they are not valid.

And I know that one member of the majority, Justice McHugh, who has since retired from the court, is now actively campaigning for a bill of rights and he refers to his regret at being forced to decide Al-Kateb the way he did, and has said publicly that a bill of rights would provide the tool kit to enable decisions like that to be avoided.

What it does it to provide a sort of guarantee of some basic ethical principles which are very easily overlooked when society is going through a period of stress, and of course, the people who suffer in those times are not the majority but the unpopular minority. And protecting the rights of unpopular minorities is always a challenge in a majoritarian system. A bill of rights is the way in which you can do it.

MONICA ATTARD: But it has to be said that a bill of rights hasn't exactly helped the United States, has it, through its hard times?

JULIAN BURNSIDE: No, but it's not a very good bill of rights and there is at least a silent tribute to the bill of rights in the US that the Government set up Guantanamo bay. The reason they set up Guantanamo bay was that they thought it could operate outside the protection which the bill of rights offers and they want to be freed of the inconvenience that they might have to treat people there like human beings.

MONICA ATTARD: Now you say that we lack the imagination in Australia to understand the realities of the policies that we have in place in relation to mandatory detention for refugees. Can you tell me why you think Australians find it so hard to actually empathise with refugees in detention?

JULIAN BURNSIDE: Well, I don't want to be accused of being too harsh but I think it's something like this. If you ask most Australians - and I have great faith in most Australians - if you asked them if they believe in human rights they'd say; "yes of course". And if you scratch a bit further you'll begin to see that what they really mean is; "I believe in human rights for myself and my family, my loved ones, my friends, my neighbours..." and then you trail off in a row of dots because if it comes to human rights for people we're scared of or people we haven't welcomed here, people we don't want or don't like, they're much more diffident about recognising those rights.

Have a look at the difference in people's responses when the Cornelia Rau case happened. You know, Australians had looked with unconcern as thousands of men, women and children had been locked up in desert detention centres, but when it was revealed that a pretty, blonde, blue-eyed woman who looked just like one of us, had been locked up, people were outraged because she was suddenly identifiably one of us instead of being one of the others.

MONICA ATTARD: Do you think Australians understand why asylum-seekers come here in the first place?

JULIAN BURNSIDE: No, I don't. I don't. I think...

MONICA ATTARD: And why do you think that is? Is it distance from the trouble spots of the world?

JULIAN BURNSIDE: Well, partly that, partly also because, you know, the Government's message about them has been very powerful and the counter-message has not been nearly as audible. You know, I mean, the message from the Government has been they're illegals, they're queue-jumpers, they're lining up in their thousands to make a better life, they're economic refugees.

Now all of that says these are just fakes taking a lend of us because, after all, this is God's own country. That's the prevailing message. Now it's actually untrue because first of all they were coming in tiny numbers, secondly they don't break the law, thirdly they generally don't choose to come here. This is the place they get taken. If they haven't got enough money to be taken to some other place and finally, and very poignantly, you find amongst many of them that what they would like more than anything else is to go back to the country they came from. It's just that they don't want to go back there and be killed.

MONICA ATTARD: A final question Julian Burnside if I might and quickly. The other issue which is discussed in your book is our anti-terror laws, which you say betray basic values. You know, the holding of a person incommunicado for a week at a time, preventative detention orders up to 14 days without trial or charge, control orders up to 12 months, secret trials where national security is deemed to be affected.

How do you strike a balance between national security and human rights in this instance?

JULIAN BURNSIDE: I think that's not too difficult. In most of the instances you mentioned, my main concern is that either evidence is suppressed, which is relevant to the case, or evidence is taken in secret to the exclusion of the person most affected by it and their lawyers. Now, any trial which runs on secret evidence, which the affected litigant is not allowed to know about, represents great dangers.

Now I, of course there are cases where it's important that a defendant not know part of the evidence on national security grounds but I cannot see why the lawyers involved shouldn't be allowed to know the evidence which is being led against their client. That seems to me to be a most basic requirement of any framework of human rights. It's the only way in which you can protect the system from mistakes or abuse.

MONICA ATTARD: Well would you want or expect a Labor government to dismantle those laws?

JULIAN BURNSIDE: Oh, they don't need to be dismantled. I think they need to be adjusted so as to make sure that some basic principles of the justice system are restored. You know, the idea, for example, preventative detention. That's two weeks' jail, not because you've committed an offence but because it's thought you might.

When you're arrested and taken in, you're not allowed to be told the evidence that was used against you. Now, I think that's horrendous. Two weeks' jail on secret evidence, which you're not allowed to know about, so that you haven't even got a theoretical opportunity of going back to the court and saying; "hang on, you've got the wrong guy."

MONICA ATTARD: We now have a claim in the newspapers that the AFP and the (then) Federal Immigration Minister may have gotten their heads together, at least at some point, to discuss holding Mohamed Haneef, the Indian doctor on the Gold Coast, in detention should the charges against him be dropped. Does that surprise you?

JULIAN BURNSIDE: It disappoints me, and I've seen the document. What it shows is that two days, at least two days before the bail magistrate ruled that Dr Haneef was entitled to bail, the federal police had arranged that the visa would be revoked if necessary, in order to make sure that he remained in custody. Now that, I think, is the clearest illustration that the (then) Minister misused his power.

MONICA ATTARD: So you think he clearly misused his power?

JULIAN BURNSIDE: Clearly misused his power. It looked like it at the time.

MONICA ATTARD: What do you think he should do?

JULIAN BURNSIDE: Well, I think he should be sacked but there may not be an opportunity to sack him.

MONICA ATTARD: Do you believe that that email alone is sufficient evidence to remove the (then) Minister?


MONICA ATTARD: And that was Barrister Julian Burnside.

Thanks for listening to Sunday Profile and thanks to the Program Producer, Lorna Knowles, and to ABC Local Radio Producer, Dan Driscoll.

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Last Updated: 16/12/2007 9:35:00 PM AEDT


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