Speaking Up

Index

1

Finding My Voice

From Migrant to Human Rights Advocate

I never wanted to enter the rough-and-tumble of public or political life, and for forty-five years as a lawyer, I managed to avoid it. Human rights advocacy is not for the faint-hearted. How, then, did I come into conflict with the government of the day on human rights issues, most particularly the treatment of asylum seekers and refugees?

On the day I first walked through the doors of the Australian >Human Rights Commission headquarters in central Sydney, I was a ‘black letter’ international lawyer having worked with a commercial law firm and been dean of a law school. My work until then largely concerned disputed claims to territorial and maritime sovereignty, such as in the South China Sea and the Timor Gap; the World Trade Organization; and sovereign immunities. I had lectured in international law, written textbooks, and led an international research institute. I was not looking for controversy. It found me.

I was not the first commission president to incur the condemnation of government. Fifteen years before I joined the commission in mid-2012, one of my predecessors, Sir Ronald Wilson, reported on what became known as the stolen generations. His legal conclusion—radical at the time—that the treatment of Indigenous mixed-race children amounted to the international crime of genocide, attracted much political derision. Today, his report is the commission’s most referenced and admired work. While I do not compare myself with so fine a judge as Sir Ronald, I do share with him the experience, when faced with the facts and personal stories, of producing a report that is also seen by some to be ‘radical’.

Today, when I speak in public, people often ask how I found the resilience to withstand the political and media abuse and character assassination. I have no answer to this question, usually waving it away with references to gin and tonic, a supportive husband, and a strong, if bemused, family and friends. Resilience is increasingly seen as a desirable trait for survival in the contemporary world. I suspect that each of us will find it in the heat of the moment—as I unexpectedly did, aged eleven.

Speaking up and pronunciation were important to the nuns at my Catholic schools in London and Devon. I was a reluctant member of a school team chosen to read poems at a local elocution and public speaking competition. I had a soft, uncertain voice and was bewildered by the vaulting images of Wordsworth and Keats. I well remember standing alone in the spotlight on stage, reciting, when a nun hissed from the wings, ‘Speak up, child.’ I raised my voice in terror and spoke loudly to the proverbial man at the back of the hall. My dramatic declamations proved effective—I received a commendation from the judges. Not given to lavish praise, the nun said she was surprised that I could speak up so well. I had found my voice at last.

I was born in London in 1945, just after the bombings of Hiroshima and Nagasaki. World War II profoundly influenced the young lives of my parents: my father, Richard, and mother, Doreen, were seventeen when they met as volunteers for the civil ambulance service amid the rubble and sirens of wartime London, helping people bombed in their houses in the early 1940s.

At seventeen-and-a-half, my father was finally eligible to join the 16/5th Lancers of the York and Lancaster Regiment. He would become a tank commander fighting the German general Erwin Rommel’s forces in the Western Desert of North Africa, where he was promoted in the field to captain and rose to major. His hero was field marshal Bernard Montgomery, the most famous British soldier of his era and an inspirational figure in the Allies’ North Africa campaign. My father took part in the battle at El Alamein in 1942 and was present at the battles for Monte Cassino, landing with the Allied forces on the Italian coast. He was mentioned in dispatches, but to my shame, I do not know what for.

At eighteen my mother joined the Women’s Royal Naval Service, whose members were known as the Wrens, plotting the positions of enemy submarines in the English Channel, among other things. It was an oft-repeated family joke that, on one occasion, the submarines turned out to be orange boxes.

Getting married was no simple business during the war. My parents took advantage of my father’s unexpected weekend leave to marry, leaving no time for the usual banns to be read in church on the Sundays leading up to the wedding. The archbishop of Canterbury gave permission to dispense with the banns and my parents married in the Church of England in 1944, my mother wearing a pink linen dress bought with pyjama coupons given by family and friends. I arrived a year later and my sister Carol a year after that. We grew up in a terrace house in Muswell Hill and lived what I thought was a perfect life at the local Catholic schools—St Martin’s Convent and Manor House Convent—visiting the British and Natural History museums at weekends.

The United Kingdom had television soon after the war, unlike Australia, where television arrived with the Melbourne Olympic Games in 1956. As a young child, I watched horrifying BBC documentaries on the arrival of American and British troops in Bergen-Belsen and Auschwitz, the skeletal bodies piled high, awaiting burial by bulldozers. I also remember refugees from Europe on the streets of London, trying to find work and housing. Throughout my years at home, my parents talked of freedom, non-discrimination and racial equality as the values for which ‘their’ war had been fought. My sense of social justice has its origins in their unwavering commitment to these principles.

Now demobbed and with young children, my father returned to the family business of clock and watch making and jewellery, taking over two of the family’s London shops. My mother ran the business side and my father provided the horological expertise. In those early years, I lived for ballet classes with the Royal Academy of Dance, becoming a young ‘professional’ ballet dancer and, with the permission of the minister of education, earning £5 a week dancing in the local pantomime. But London in the late 1940s and early 1950s was depressed, with empty bomb sites, smog and rationing. Above all else, my parents wanted a new beginning, with the best possible educational opportunities for their daughters, along with sunshine and freedom. They chose Melbourne, Australia. I was not pleased when they decided to migrate in 1958, although the move was probably just as well—I was unlikely to earn a living as a dedicated but not very good dancer.

We left London from the Tilbury docks on the P&O flagship, Iberia, and set sail for the Antipodes. This was to be the formative journey of my life. Over six weeks we travelled through the Mediterranean to Naples, passing glistening white houses beside a blue sea. We entered the Suez Canal, then recently reopened, two years after the disastrous intervention by France and Britain to recover the canal after it had been expropriated by Egypt’s president Gamal Nasser. The atmosphere was sombre and armed forces patrolled the canal. The gilli gilli men—itinerant magicians—came aboard with their chicks and tricks. We bought Turkish delight and toy leather camels from the boat traders who came alongside the ship.

After sailing through the Red Sea, the Iberia arrived in the Yemeni port city of Aden. The extremes of poverty and violence there opened my young eyes to the harsh realities of life for so many in the world—Yemen remains one of the most violent places on earth and its people starve as civil war continues to rage. After the dry heat and tensions of the Middle East came the tropics of Ceylon (now Sri Lanka), a jewel-like island of frangipani, snake charmers, elephants, spices and beaches. We were enchanted by its beauty and tranquillity, though this was soon to be destroyed, yet again, by civil war.

The journey’s final leg took us across the Indian Ocean to Fremantle and finally to Melbourne. We docked at Station Pier late one night in April 1958 and I woke the following morning in our house in Croydon, a suburb then on Melbourne’s furthest eastern fringe. The sun was shining, magpies were warbling and oranges grew on the trees. This was paradise. And so began our family life in Australia. It was not easy in the first few years. My parents started a new clock and jewellery business, my mother running it during the day while my father took a job as production manager at tool maker Black & Decker. But as the business developed, my father joined my mother and our family flourished.

Carol and I started school at a small private ‘establishment’ in genteel Mont Albert—Ormiston Girls’ Grammar—later taking the exams for places at a sought-after, selective high school in innercity Parkville. My mother, like thousands of her generation who left school to join the defence forces, had been frustrated by the lack of opportunities to gain further education. She was determined to see her daughters go to university. Carol and I both gained places at University High School, travelling to school from Croydon each day by bike, train and tram. The three-hour round trip was exhausting: sweaty in summer and bitterly cold in winter. But the chance to join a school that provided a direct pathway to the university across the road was to change our lives. The standards were high, the teachers dedicated, and the assumption was that all students would go to university. I loved school and wouldn’t miss a day. Early on it became clear I was incompetent at sports, enjoyed debating, and wanted to be a scientist or doctor. But failing chemistry put an end to the latter ambition. Law was the only real option for me.

I entered the University of Melbourne Law School in 1964 as a baby boomer with a Commonwealth scholarship. For the following four years I lived at a university college, Janet Clarke Hall, known to its then all-female residents as ‘JCH’. Perhaps I was too young at eighteen to go straight from school into the law degree, though this was quite typical before combined degrees became the norm. I was adrift for the first year or so studying criminal law and contracts, finding judge-made common law a mysterious, unpredictable process. I was one of about thirty women taking law at that time, sitting in packed lecture theatres with 300 men. There were few tutorials but, as a JCH girl, I was allowed to join the ones held at neighbouring Trinity College with leading barristers such as Jim Merrills and Gavan Griffith. Griffith started his first tutorial on equity with the opening paragraphs of Dickens’ Bleak House; I have never forgotten the power of literature in conveying social injustice.

The Law School itself had a dazzling array of legal talent on staff. Some remain leaders in their fields today; a couple would become household names. The faculty dean was Zelman Cowen, who would one day be Australia’s governor-general; he promoted the case-study approach to studying law. My lecturers included Colin Howard and Gareth Evans (later a long-serving Labor government minister) for constitutional law, Peter Brett for jurisprudence, Cliff Pannam for contracts, Harold Luntz for torts and Harold Ford for company law. The fervent anti-communists Frank Knopfelmacher and BA Santamaria gave lectures at lunchtimes that were intended to ‘stimulate the mind’. I didn’t realise then how fortunate I was to have such scholars for my teachers. They would not have noticed me. At lectures I sat in the front row with the other girls, saying little. We were expected to write down every word spoken, to be reproduced in a three-hour exam in November; compared to the constant rounds of assessments, essays and tests today’s students face, it was pretty undemanding.

In my third year, I went to my first public international law lecture. Dr Hans Leyser had escaped the Holocaust, coming to Melbourne in the 1930s. He spoke of the Covenant of the League of Nations, drafted after World War I—the ‘war to end all wars’—and the ways in which the covenant had failed to prevent World War II. In 1945, after the end of that war, fifty-one nations agreed to the United Nations Charter, strengthening their commitment to respect territorial sovereignty and non-aggression with these words:

We the peoples of the United Nations [are] determined

To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small …

Three years later, the Universal Declaration of Human Rights gave substance to this grand vision by setting out fundamental rights and freedoms that provided the scaffolding for the human rights treaties negotiated over the following decades. The brilliant and feisty Australian HV ‘Doc’ Evatt, at the invitation of America’s activist first lady, Eleanor Roosevelt, contributed to the negotiation of the declaration. Under his presidency, the UN General Assembly passed the declaration without a single negative vote, a commendable feat.

I left Leyser’s lecture exhilarated and fizzing with a new sense of purpose. I had found my subject. The idea of the international rule of law, despite its slow evolution and evident weaknesses, has inspired and informed my professional life ever since.

Of course, I did not spend every day of my undergraduate years in lectures and libraries. The 1960s were in full flower and the university campus was a vibrant, exciting place. With my fellow students, I marched in moratorium protests against the war in Vietnam, following Dr Jim Cairns—later to become a controversial figure in the Gough Whitlam Cabinet—along Swanston Street to the Treasury Gardens for half-heard speeches. It is probably no coincidence that those years at Melbourne University—then widely nicknamed ‘the Shop’—produced so many graduates committed to social justice, such as future High Court judge Kenneth Hayne and Victorian Supreme Court judge Marcia Neave. Janet Clarke Hall residents from that era included Nobel prize–winning scientist Elizabeth Blackburn and writer Helen Garner.

We students read Simone de Beauvoir’s The Second Sex and, in the bliss of ignorance, debated the two-China policy—involving independent recognition of Taiwan—over empty Chianti bottles stuffed with dripping candles. We drank Mateus Rosé (available at five bob a bottle from Jimmy Watson’s in nearby Lygon Street) and chanted slogans to ‘make love not war’. We burnt our bras—metaphorically, I hasten to say—in support of feminist liberation, and espoused existentialism and Kierkegaard.

Then, with the final exams over, the bras went back on as we set off to find work. Anything seemed possible, in the best of all possible worlds.

My generation of women rode the crest of a wave: those with Commonwealth scholarships had close to free university education; we had virtually assured employment and control of child-bearing; and new federal laws promised to ensure equality of opportunity. The rules against racial and sexual discrimination were groundbreaking advances in Australian law, to be followed by legislation against discrimination on the grounds of age and disability. In this new world of optimism and opportunity, my generation of women could flourish.

That said, sceptical employers tended to take the view that a young woman lawyer would only end up leaving to marry and have children. It made my hunt for an articled clerkship a long one. When I finally secured one in 1968, it had nothing to do with international law and I found it hard to generate much interest in the day-to-day work of a mid-sized law firm. On completing my articles, I was admitted to practice in March 1969 as a barrister and solicitor of the Supreme Court of Victoria, then propelled into my future when I was awarded a scholarship for a postgraduate degree in international law at Southern Methodist University in Dallas, Texas. These were formative years in which I came to understand the potential of law in the open-minded, everything-is-possible world of the United States in the early 1970s.

I helped finance my studies in Texas with part-time work waiting tables in a fish restaurant, decked out in a perky sailor’s hat, skimpy white shorts and white boots, and paid a dollar an hour with 15 per cent tips. I also worked as an intern at the Dallas Police Department, where I was asked to give legal advice to the new chief of police on the civil rights legislation that had been passed in 1964. The chief had been employed to improve the diversity of employment within the police force and he liked my advice, albeit it was controversial. I was appointed ‘Legal Advisor to the Chief’, a grand title for a 28-year-old. In my two years in this role, I learnt that to pass a law prohibiting racial discrimination is merely the first step in building a culture of equality and respect.

After more than four years in the United States it was time to come home. I missed family and the sense of belonging, despite the opportunities offered in America. I was lucky to be offered a tutorship at the University of Melbourne Law School and so began the slow, dogged work to become a lecturer and publish my research. I married Sandy Clark, then dean of the Law School, and had three children—James, Alexandra and Victoria—in fewer than four years. These were happy times but challenging ones as I tried to juggle academic work with a growing family. The challenges escalated to another level when Victoria, born in 1984, was diagnosed with a rare genetic condition called Edwards syndrome.

Sandy and I were told that Victoria would live a few hours or perhaps days. We had her christened and waited, going to the hospital twice a day to see her. And we waited. After a couple of weeks, a Scottish nurse took me aside and said she thought Victoria was not going to die anytime soon, that she could survive for as long as six months. After picking up all the baby gear, we brought Victoria home. Little did we, or anyone else, imagine that she would live until she was nearly twenty-one years old. Those early days after Victoria was born were difficult and I remember the kindnesses of Sister Bernadette of the Mercy Hospital, and of family and friends who came by to offer assistance.

With the help of the Queen Elizabeth Hospital for Mothers and Babies, and later the Austin Hospital, we tried to ensure that Victoria’s life was as comfortable as possible. But James and Alex were just three and one, and they needed my time and energy. The demands were too great. I finally asked for help from Inner East Foster Care, who introduced us to Margaret and Joe and their family. They had long experience of caring for children with profound disabilities, and they agreed to help us with Victoria. I well remember leaving a red-faced, damp and unhappy baby of five months with Margaret, not really believing Margaret could cope. So began a relationship between our two families that continues to this day. I will always be grateful that Victoria was loved and lived such a happy and enriched life, largely through the selfless generosity of Margaret and Joe.

When I look back, I am amazed that through those years I also undertook a PhD, completing it in 1982. My thesis examined the ways in which nations acquire territorial sovereignty. I had applied it to Australia’s claim to 42 per cent of Antarctica, one that a few other nations recognised. In 1986, Barry Jones, then the federal minister for science, invited me to go on a seven-week round trip to the Australian Antarctic Territory to report on our activities there. There was much criticism at that time that there was too much building going on in Antarctica and not enough science; above all, it was imperative that Australia was a true sovereign in the territory it claimed.

I accepted the minister’s invitation with alacrity and set off on a recently built icebreaker, the Icebird. The ship’s cargo included scientific equipment and supplies for Australia’s bases, and the passengers included everyone from scientists and military officers to artists-inresidence, cooks and diesel mechanics. When I boarded, crew members called me a ‘Jafa’. It was curious because a Jafa was, I believed, a small round ball of chocolate coated in orange icing. A few days into the journey, as the ship pitched through the grey swells of the Southern Ocean, I finally plucked up the courage to ask what was meant by Jafa. The answer came: ‘Just another fucking academic!’

The jagged skyline of Antarctica was pure and beautiful but the environment was dangerous. Despite the brilliant blue skies, the temperature was 20 degrees below zero and human core temperatures could drop rapidly to life-threatening levels. Once, after helping to move onshore some discarded oil piping, my temperature dropped so low that it took many hot showers back on the Icebird to bring me back to life. On board the icebreaker and on the bases themselves, interpersonal relations were complex and true leadership came not from the hierarchy but from the other ranks—the third plumber could prove to be the ‘true’ prime mover in that environment, rather than the designated hierarchy.

When a Foreign Affairs official led a team to inspect the Russian base in the Australian sector, they arrived to find a large Russian vessel swiftly departing, loaded, it was said, with illegal catches of whales. We also visited the frigid but beautiful animal kingdom of the Heard and McDonald islands. Overall, the trip was an unforgettable opportunity to observe the diplomatic and legal success of the Antarctic Treaty system, which had been in force since 1961, and the positive role that international law could play in ‘freezing’ claims to territory in the interests of mutual cooperation (a model that could be useful in the South China Sea dispute today).

After my return from Antarctica, and with the children growing older, I ventured into commercial legal practice. Mallesons Stephen Jaques was a top-tier Melbourne law firm. I started at the bottom, an ego-deflating and tough experience for a forty-year-old, but I remain thankful for the commercial and financial skills I learnt as a result. Mercifully, in the twenty years or so that I was associated with Mallesons, I was never told my budget goals, primarily because, as a public international lawyer, there was little chance I would ever meet them.

At Mallesons, I had the opportunity to help establish the firm’s practices in Singapore, Jakarta and Kuala Lumpur in the early 1990s. I was in my element: many of the legal issues that arose concerned access to resources in disputed maritime territory in the Gulf of Thailand and South China Sea. I had, by this time, married Alan Brown, Australia’s high commissioner in Singapore, and embarked on a completely new life as a ‘trailing spouse’ in the diplomatic service. The author Lawrence Durrell referred to wives of diplomats as ‘diplomatic baggage’ and at times I felt rather like that, though James and Alex flourished at their Singapore schools—Tanglin and United World College—where they met fellow students from around the world.

We spent three years in Singapore before Alan was appointed Australia’s ambassador to France in 1993. When we moved to Paris, I was exceptionally fortunate to retain a consultancy with Mallesons and continued working for them for the next few years, from a semicircular office in our apartment in the Harry Seidler–designed Australian embassy beside the Seine. Mallesons won a bid to provide legal advice on disputed sovereignty over the Gulf of Thailand, and I researched the territorial boundaries between Thailand and Cambodia in the Bibliothéque nationale de France, a library holding texts dating back to 1368. My French was poor, but I managed to read fascinating accounts of colonial efforts to draw lines on maps that continue to be disputed to this day. The job was an international lawyer’s dream. I squeezed the legal work into the world of entertaining—keeping the flowers fresh and carrying out all the other tasks that fell to diplomatic spouses.

My time in Paris was marked by the resumption by France in 1996 of nuclear testing in the Pacific, this time underground. Australia returned once again to the World Court to seek an injunction, but France continued its tests to ensure it had the most up-to-date technology. Alan was recalled to Australia for a few weeks as a diplomatic protest and many Australian restaurants refused to serve French wines. On our return to Paris, Alan made many formal protests at the French Foreign Office on the Quai d’Orsay, to no avail. The tests stopped only once the planned series had been completed. Much of Europe considered Australia to be naive on the issue of nuclear testing and dismissed the country’s view that France should test in its own backyard, not ours. At one Paris cocktail party, several European diplomats turned their backs on us as we arrived. Alan seemed to take this on the chin but I was unnerved, only to be reassured when our regional neighbours—Singapore, Indonesia, Malaysia and Papua New Guinea—came to our rescue by welcoming us and assuring Australia of their support in resisting nuclear tests in the Pacific. I shall be forever grateful to these countries and their loyal diplomats.

After we returned to Australia in 1996, I resumed my academic life at the University of Melbourne, completing my textbook International Law: Principles and Practices following a year at Cambridge’s Lauterpacht Centre. In 2005, I was offered the directorship of the British Institute of International and Comparative Law in London. Alan and I packed our bags and moved to a ground-floor flat in Chelsea to start what I thought would be my ‘retirement’ job in London, where my life had started. This was not to be. More and more, we missed the sunshine, warmth and presence of family in Australia. About three years later, I accepted the position of dean of the University of Sydney Law School, a year or so before the ‘downtown’ faculty moved to its fabulous new glass building on campus. These were wonderful years, with a collegial and talented academic staff and outstanding students. We introduced the graduate Juris Doctor degree and the school rose in the scholarly research rankings.

In 2012, I was about to accept another five-year term as dean when I received an offer from Australia’s first woman attorney-general, Nicola Roxon, of the position of president of the Australian Human Rights Commission. I remember saying that I was a generalist international lawyer, with no special expertise in human rights. Roxon was undeterred and wished me luck. When I accepted the offer, I not only found my public voice, I discovered I had something useful to say.

Human Rights: The Year Australia Changed Course

Human rights apply to everyone, all the time. Those whose human rights need protecting are not always socially worthy citizens. Human rights defenders do not pick and choose whom to protect. And this is the point. Vulnerable people, usually minorities, and sometimes unpopular people all have the right to enjoy fundamental freedoms and respect as human beings.

With the national perspective I gained during my five years at the Australian Human Rights Commission, I came to understand the huge gulf that lies between the law and practice. I had seen this gulf during my time in Dallas. Decades later, and on the other side of the world, I look at my own country and ask: How is it that the sovereign nation of Australia, one of the architects of international human rights agreements following World War II, and a globally recognised ‘good international citizen’, has regressed so far in failing to respect human rights in the twenty-first century?

The growing disregard for liberty and freedoms by respective Australian governments can be dated from 2001. This was a monumental year for at least three reasons. On 24 August, Captain Arne Rinnan of the Norwegian ship MV Tampa rescued 438 ‘boat people’ floundering on the high seas. Despite the refusal of the Howard government to permit entry, he sailed into the territorial waters of Christmas Island. The incident prompted the ‘excision’ of Christmas Island from Australia for immigration purposes, a policy that attracted the overwhelming support of the public. Then, on 6 October that year, prime minister John Howard repeated the assertion by Philip Ruddock, his immigration minister, and Peter Reith, the defence minister, that asylum seekers had threatened to throw their children overboard to ensure they were rescued and taken to Australia. Despite a Senate Select Inquiry finding a year later that there was no evidence to support the statement, the damage was done. The political advantage for the Howard government was to be revealed in the federal election held shortly after.

Less than three weeks after the Tampa picked up its human cargo, on 11 September, terrorists attacked the Twin Towers of the World Trade Center as well as the Pentagon in the United States, killing almost 3000 people. In crucial respects, the world changed fundamentally after 9/11, and Australia was not immune to this. Australian governments have seen political advantages in confusing and conflating several imperatives: the need to address the threat to national security posed by terrorist acts; to protect Australia’s extensive coastal borders; to stop people smuggling and save lives at sea; and to ensure social and cultural cohesion in a multicultural Australia. Each of these objectives is important. Taken together, they have provided the pretext for disproportionate laws and policies that violate the principles upon which Australia’s democracy has been built. The real challenges facing Australia are to protect our national interests while also ensuring that the democratic values of liberty and the rule of law are maintained.

While the humanitarian tragedies of 2001 explain the political environment that facilitated a decline in respect for human rights, they do not explain why the legal system in Australia continues to deny protection against abuses of common law freedoms. Australia has been exceptional as a liberal democratic country in