Julian Burnside QC

(Originally published in Island Magazine – bloody go get a copy or subscribe. It’s really good: HERE)


Julian Burnside QC is a renowned barrister who has appeared in many high-profile legal cases, including representing the Maritime Union of Australia in the 1998 waterfront dispute with Patrick Corporation, which became Australia’s most famous industrial relations controversy. But it wasn’t until acting against the Australian Government over the Tampa episode in 2001 that he became more widely known to the public. Today, Burnside is one of our most prominent human rights advocates and, increasingly, one of the most consistent voices arguing for truth and compassion to be embedded within Australia’s approach to asylum seekers. Here, James Dryburgh speaks with Burnside about language and law, art and asylum.

Julian Burnside QC offically launches the 5th Melbourne International Chamber Music Competition in the Alto Room at the Langham Hotel Southbank.

JD –I’m going to read you a quick quote from Scott Morrison, from 2013, when he was Immigration Minister, when he was queried about his use of the term ‘illegals’ when describing asylum seekers:

‘I’m not going to make any apologies for not using politically correct language to describe something that I’m trying to stop.’

How are we supposed to respond to such language from our political leaders?


JB – Well, I think it’s outrageous, because politicians calling boat people ‘illegals’ has nothing to do with political correctness; it’s got to do with honesty. To call them ‘illegal’ creates the entirely false impression that these people have committed some sort of criminal offence; and renaming the Department as ‘Immigration and Border Protection’ adds to that false impression by creating the sense that we are being protected in some way by criminals who are, by definition, dangerous.

It is a lie, and what it has done is to lead Australians into accepting complacently that it’s alright to mistreat boat people. In fact, the September 2013 election was disfigured by the fact that both major parties tried to win support by promising cruelty to boat people. I don’t think that reflects the Australian character. If it was correct that these people are criminals from whom we need to be protected, then what Australia is doing might make some sense, but the fact that we’ve been seduced into tolerating the deliberate mistreatment of innocent, frightened human beings, strikes me as outrageous, and to be seduced into it by the dishonesty of people like Scott Morrison is a political scandal…

And let me make it very clear: I would say publically that Morrison is a dishonest hypocrite. Dishonest because he lies to the public by calling boat people ‘illegal’ in order to pursue his political objectives, and a hypocrite because this is a man whose maiden speech proclaimed the importance of his Christian values.


JD – Most church organisations are becoming more and more vocal against their policies. How do you explain the growing advocacy against asylum seeker policies from church groups, when, as you say, Morrison, Abbott, and indeed most of the current Cabinet (like Rudd before them) consider themselves devout Christians?


JB –I don’t know how the self-declared Christians in the government manage to reconcile their position with their asserted ethical views. Except by saying they’re hypocrites, and I don’t have any problem saying that. I am very grateful the churches are getting into it. Broadly speaking, churches have been pretty quiet on this issue for quite a long time and I suspect that the reason for that is that most of the major churches have got their hands in the pocket of government for a lot of the delivery mechanisms for social welfare schemes.

But, increasingly, major churches are now speaking out. Father Rod Bower at Gosford Uniting Church has been a fascinating example of that. Archbishop Philip Freier of Melbourne has used his position to say some very sensible things in relation to refugee policy, and he’s used the walls of St. Paul’s Cathedral to hang large pro-refugee banners. All of that’s terrific and I say good on them.

And quite right, too, because I see this as an ethical issue, and the church these days has very little power except as a reflection of ethics – they have a special authority in relation to ethics. I mean, sure, it’s all been a bit clouded by allegations of sexual impropriety in some churches, but it is the meat and drink of churches to talk about ethical, moral questions. If any group has the right to speak authoritatively about the treatment of asylum seekers it is the churches.


JD – As a generalisation, I think it is fair to say Australian society has become less compassionate and more selfish over the past couple of decades. How did Australia become so cruel? Where and when did it all go wrong?


JB – I think there are two forces at play. The first is: boat people have been described now for 14 years as ‘illegals’ and I think an increasing number of people in the community believe that tag and believe that boat people are criminals. Second: people are becoming increasingly disengaged from the issue because it’s been going on for so long. People get worn out on issues, and I think a lot of people are worn out on this one. It’s a natural response, by the way, if you are frequently confronted with something that is painful; it’s a natural human response to try and blank it out. We have a short attention span and there’s a protective mechanism involved in that.


JD – It could be argued that fear can increase conservatism and support for conservative leaders and policies. What role do you think fear plays in all this, politically and at a societal level?


JB – Very significant. In fact, my prediction is that over the next couple of months we will find the Government ramping up the rhetoric of fear so as to shore up Abbott’s position as Prime Minister. We’ve already seen traces of that and I think there is more to come. Of course, exactly the same thing happened in 2001. It’s easy to forget that in 2001, when the Tampa episode happened, Howard’s response was explicitly political: it was to lure people back who’d been drifting across to One Nation. It’s easy to forget that Howard’s Prime Ministership was at serious risk and it was an open question whether he and the Liberal Party would be re-elected later that year; and it is undoubtedly the case that September 11, which happened just after Tampa, gave him the perfect opportunity to tag boat people in terms that suggested they were some kind of national security threat. I’m sure the sociologists are right when they say that fear tends to make people conservative: of course it does, because we become very self-protective when confronted with fear…

I say ‘conservative’, but I don’t think the present government is conservative. I regard myself as conservative. Conservatism involves adhering to traditional values, which have stood the test of time. Current right-wing politicians seem to embrace a position which involves discarding the lessons of history and striking out on new paths.


JD – So what do you think a true Conservative approach to asylum seekers in Australia would be?


JB – Well, I’ve always thought Conservatives embraced fundamental ethical notions, like decent treatment and so on. I may be wrong about that, but that’s my impression. I think the fundamental issue with asylum seekers isn’t actually about politics, it’s about ethics, it’s about simple human decency. It’s got tangled up in politics because Howard demonstrated that it could be exploited for political gain. But the issue, the problem that needs to be dealt with is, above all, an ethical problem.


JD – Why do you think some Australians are instinctively horrified and moved to tears over the treatment of these people, whilst others seem to have no concern, or even a ‘serves them right’ attitude? How can the human spirit differ so much?


JB –I think the dividing line, probably, is that some people recognise and accept that these are people who have not committed any crime and who are aware that the overwhelming majority of boat people are in fact genuine refugees. You know, 94% of them over the past 15 years have been assessed by us as genuine refugees. But the people who say ‘serves them right’ are people (and this is just guess work on my part) but my assessment is they are people who are having a tough time in their own lives, they feel threatened because they read the tabloid press or listen to talk back radio and they think, ‘Oh yeah, these are criminals, they’re coming in and they’re flooding us, my life is miserable already and I don’t want to make things worse by having a whole lot of Muslim terrorists coming in.’ That’s the coarse way of looking at it.

An alternative way of looking at it is to say, ‘Well, hang on, they are at least people who have the courage to risk their lives trying to get here by dangerous means. They’ve got the initiative to run for it rather than to sit around and wait for their persecutors to kill them, and they’re probably fleeing the same extremists we’re fighting in the Middle East. What is there not to like about people like that?’


JD – So what made you become an advocate for the vulnerable, when and why did you start doing this?


JB – I’ve always had, I guess, a weakness for people who need help and I think that’s just a part of a complex mix of things that happen when you’re growing up. On this issue, specifically, I got involved sort of by accident because a friend of mine thought up a case theory that he thought might resolve the Tampa impasse and asked if I’d act pro bono in it, and I said, ‘Yeah, sure’. I didn’t know anything about refugees, but I thought it was wrong to hold a bunch of people hostage on the steel decks of a ship in the tropical sun. It was very unsophisticated thinking. By virtue of having done that case, I found myself being asked to do lots of refugee cases, all pro bono, of course: the price elasticity of demand goes vertical when the price falls to zero. Case after case after case demonstrated to me what shocking things we’re doing to people in the detention system and in our treatment of people who come here by boat simply asking for help, and so that sort of welded me on to it I guess.


JD – What have been some of the unexpected experiences of taking a public stance and such a deep involvement in this issue – both positive and negative?


JB – The most surprising experience was that during the Tampa Case, for the first time in my life, I received death threats. I didn’t expect that. You know, I’ve done some controversial cases in the past, most notably perhaps the Patrick Stevedores MUA case in 1998, which was highly contentious. But the Tampa Case was the first time I had received death threats. The second surprising thing was that I started receiving torrents of hate mail. I mean, astounding amounts of hate mail, from… well, obviously, I don’t know from whom: they usually forget to tell you who they are! So those were, I suppose, negatives, though extremely interesting negatives. I didn’t mind the hate mail and the death threats, I actually found them quite interesting…


JD – Why, because you know you’re on the right track?


JB – It’s just a sort of interesting casual marker of things that are going on in parts of the community that I have no contact with. So I actually find it quite valuable to see how these people are thinking.

A big surprise was that quite a few people who I had thought were friends suddenly gave me a wide berth, for quite a number of years. I lost friends. I’ve always moved in pretty conservative circles, or circles that would be traditionally, normally regarded as conservative circles. I was a silver-tailed silk with a history of privileged upbringing and so on, and all of a sudden I’m this sort of novelty act: a commercial silk attacking the government. So that did have consequences that were very painful. I felt very isolated from a lot of friends for a number of years. On the plus side of that, I found myself making new friends from unexpected quarters, people of fine personal qualities that I appreciated. So I guess my range of friends has shifted quite a lot in ways that I would never have guessed. I have to say that I think I have gained from the change-over.


JD – Oh that’s good…


JB – There’s one other thing, when Tampa happened my wife Kate said, ‘This is not the way Australians are, Australians are generous and hospitable’, and I agreed with that assessment. But because she’s an artist and creative she said, ‘We should set up “spare rooms for refugees”.’ Her thinking was that most Australian houses have a spare room, refugees when they get out of detention need somewhere to stay, so we can deal with that practical need, and demonstrate the underlying decency of Australians, by offering spare rooms to them free of charge.

So we set up a web-based organisation called Spare Rooms for Refugees, which invited people to offer free accommodation, and very quickly we were inundated with offers. We had more offers of accommodation than we had people available to fill it – it was remarkable. But I said to Kate if we’re going to ask people to do this, we need to lead by example, so since late 2001 we’ve had refugees living with us at home, and that has been an extraordinary experience. It’s one of those things which has illuminated part of our lives, in ways I would never have imagined possible. It’s fascinating, so that’s another positive.


JD – Words are fundamental to how we behave and how we relate to one another and the world around us, whether they be on the page or screen, in film, music or face to face, or even the private voice in our heads that speaks to us in response to feelings and stimulus. Words, in one form or another, generally precede action. I know you have an interest in philology, so how important are the words chosen and language used when talking about asylum seekers? Do you think, for example, particular language can, consciously or unconsciously, inhibit our natural human tendencies towards empathy or compassion?


JB – Yes, I do. Its profoundly important. ‘Illegals’ is probably the most obvious example. In the same connection we’ve heard ‘border protection’ and ‘operation sovereign borders’. These are expressions calculated to make us think there’s a large national interest at stake and we have to keep on with the policy the government has adopted. Imagine if, instead of talking about ‘border protection’ and ‘illegals’ they had said, ‘We’re going to mistreat innocent children in order to achieve a political advantage’. I don’t think that would work very well. They promised cruelty to “illegals”. What if they’d promised cruelty to animals? You know the thought processes and the response in the community would be different if they used different language because it would conjure up utterly different emotions in the people who hear the words.


JD – So how do you think then, advocates and compassionate people, can regain influence over the meaning of our words and our language, and try to take them back, for want of a better expression?


JB – It’s very difficult. I’ve thought about this a lot, for obvious reasons, and I think the difficulty in getting the truth out there is not just about getting the language straight. The language determines what the general public understand as the truth. So getting the true message out there faces one obvious obstacle: most people get their understanding of the world around them from two things: one is their day to day experience with other people, but much more broadly it comes from television, radio and newspapers. Now when the media message is dominated by one interest, and of course I mean the Murdoch Press, then the message that that media organisation convey is the message most people get, and correcting it depends on the willingness of that organisation to put through the correcting message.

I think people like Andrew Bolt do understand that boat people aren’t illegal. I think Bolt’s a fairly intelligent person, so I’d imagine that he understands that. I’m confident that if Rupert Murdoch switched his position on issues like this, Bolt would start saying, ‘Look, you’ve been misled, they’re not illegal. They’re not criminals, they’re not dangerous, we don’t need to be protected from them, our borders aren’t at risk.’ And that would then get through to all the people who need to hear it.

I thought naively when I got involved in all this, you know, I started accepting every request to go and speak to this group and that group, and I thought, ‘Well, if need be I’ll persuade Australians one at a time’. I didn’t do the maths, and obviously it’s an impossible task, and frankly, the Murdoch Press isn’t much interested in giving my views any air space, so…


JD –Now, we’ve just spoken about the importance of words, but this government, from the moment it was elected shifted from words – albeit mostly three word slogans – to silence. As Rebecca Giggs put it in a recent essay for Right Now: ‘The silence turned from an absence of information into a palpable presence’. What do you think about this use of silence and its broad effects?


JB – It’s outrageous. Scott Morrison was the cheerleader for this approach and, of course, when he was in opposition he had been trumpeting details of every boat arrival. All of a sudden, as soon as he’s in charge, it becomes a matter of national importance to keep quiet about it. It’s hard to know what experience on the road to Damascus persuaded him of that.

But there’s two other things I want to volunteer on this. The first is, the expression ‘sovereign borders’. That whole operation which was skilfully done, emerged out of the notion of ‘border control’. ‘Border control’ and ‘border protection’ are two different ideas. ‘Border control’ was a ludicrous thing for them to raise in connection to this, because what they were doing was drawing a distinction between people who come in with a passport and a visa and people who come in without papers. I did some figures from the Department’s own website. About 5 million people come over Australia’s borders every year (mostly for short term purposes: tourism, business etc), and the largest number of boat people to come across the border in the last century in one year was 25,000. So border control is effective in 99.5 per cent of cases, which is hardly a failure.

Now they’ve backed away from ‘border control’ and started talking about ‘border protection’. But border protection implies a threat and that implies that people who are escaping the Taliban or Islamic State or any other murdering mob of idiots – those people who are escaping them are a threat to us?! That we need to be protected from them: I would have thought that’s self-evident nonsense, and it’s very clear that terrorists do not come into Australia as boat people. We just don’t need to be frightened, and we don’t need to be protected from them, they need to be protected from the same people we’re fighting overseas.

And a third thing, and it goes back to ‘stop the boats’. ‘Stop the boats’ emerged from that awful footage of the boat breaking up on the shores of Christmas Island. A horrendous event. It showed us graphically what people who think about these things knew already, which is: it’s a dangerous trip, it’s a dangerous thing to try and get across to Australia by boat. ‘Stop the boats’ was initially pegged to a concern that people lose their lives when people hop on boats using unscrupulous people smugglers and so on.

What wasn’t given any consideration it this: people who are persuaded not to get on boats have very little alternative but to stand their ground and face their persecutors. If they get killed by their persecutors, they’re still dead, just as dead as if they had drowned. The difference is: we’re not aware of it, our consciences aren’t burdened by seeing a person being killed by the Taliban, which is probably as nasty as seeing them being smashed on the rocks off Christmas Island. So stopping the boats from setting out was not necessarily a kindness.

Then ‘stop the boats’ morphed into ‘stop boats from arriving’. We know affirmatively that boats kept on setting out from Indonesia, we know that because on 5 or 6 occasions we breached Indonesian territorial waters as we pushed asylum boats back into Indonesia. We spent millions of dollars buying those orange life boats in order to push people back to Indonesia, so we know the boats didn’t stop leaving. So ‘stop the boats’ had become ‘stop them arriving in Australia’. What we’re not allowed to know is how many people drowned in their failed attempt to reach Australia by boat, and we’re not allowed to know because it’s an ‘on-water matter’.

So the original impulse for stopping the boats has been completely obscured as they changed the nature of what stopping the boats actually means. Stopping boats from arriving has got almost nothing to do with a humanitarian concern for people who take the risk of getting in a boat in the first place. And by the way: what is the logic that says we should prevent people from drowning by punishing the ones who don’t drown?


JD – The Coalition and Labor now, it seems, are so entrenched within the narratives they have created for political purposes that to change to a more humane, rationale approach to this issue would almost be to admit to lying for the past 10 years. I mean, as discussed earlier they both actually campaigned last election on deliberate cruelty to asylum seekers – how can they now change? What is it going to take for the political change we need?


JB – I don’t know. And that again exposes my ignorance about politics. I agree with the starting point: they’ve been pretty much indistinguishable on this issue apart from a brief and apparently insincere blip by Rudd in 2008; his performance in the 2013 election suggest that he wasn’t genuine in what he espoused in 2008. Interestingly, in 2008 there weren’t any boats coming, so effectively he was saying, ‘We’ll treat asylum seekers decently so long as they don’t come here’.

But I have no idea. If I knew, I’d be working on it, but I have no idea what needs to change in order to get things back to sensible… Maybe we have to descend further into the pit before we can start climbing out of it. And you know, it’s horrible to start drawing parallels with other historical examples of massive widespread abuses of human rights and values, but there are plenty of examples spread across the 20th Century where otherwise civilised nations have suddenly gone mad, and maybe… maybe… we have to go a long way further down that path before we come to recognise that it’s wrong. Certainly we’re on a terrible path.


JD – What would you like to see Australia’s approach to the refugees and asylums seekers be like in the next few years?


JB – Well, something like the ‘Tasmanian Opportunity’ or the broader regional solution, which runs in tandem with the Tasmanian idea. I think that is a system which would actually work. People who come by boat seeking asylum would be detained initially for, say, one month for preliminary health and security checks. Then they’d be released into the community on an interim visa, which has conditions that they’ve got to stay in touch with the Department pending refugee status determination. They’re allowed to work, they have access to full Medicare and Centrelink benefits, and pending refugee status determination, they have to live in a specified regional town or city.

Now I did some figures on this. We can all accept the fact that in the last 20-30 years the largest number of boat people ever to come to Australia was 25,000 in one year. It’s a small number, which isn’t really surprising because you’ve got to be pretty brave and pretty desperate to make the voyage. And, by the way, the numbers that arrive typically track parallel with global refugee movements, about which we have no control whatsoever. We get a tiny fraction of that movement, but it’s predictable and history shows that they run in tandem.

So let’s pretend then that 25,000 becomes the new normal, and let’s pretend that every single one of them remains on full Centrelink benefits for the whole time; that would cost the Australian economy roughly five hundred million dollars a year. All of that money would be spent in the economies of regional towns and cities, which would be very good for those places, because it gets spent on food, clothing and accommodation. So there’s a benefit to regional Australia. Of course, it would do good to the towns, and it would do good to the refugees who are being treated this way. So it’s got a lot going for it. The present system involves spending five thousand million dollars a year, and doing harm, and deliberately doing harm. Harming our national character, harming the asylum seekers, harming the people who are paid to look after them. You know this sort of treatment brutalises the guards as well as harming the detainees. I think there’s a good economic argument for taking a more decent approach. So that’s one system that I’d like to see put in place, but there’s also another completely different alternative.

The United Nations High Commissioner for Refugees (UNHCR), their global annual budget is just short of $3,000 million per year. Let’s suppose we speak to the UNHCR and say, ‘Look, we’ll give you $1,000 million a year just to process asylum claims in Indonesia and Malaysia, and then for those who are assessed as refugees, we will resettle them safely and swiftly in Australia and in any other countries who are prepared to help share the load. That would immediately kill the people smuggling trade – if that’s genuinely what the politicians want to do. It would mean no one would get on a boat, because you say to them, ‘You’ve been assessed as a refugee, you will be safely resettled in 6 weeks, 2 months, 3 months’, whatever is a rational time. Warn them not to get on a boat in this way and you’ll stop the drowning straight away and you’ll also be getting nice regulation of movements across our borders. That could work.

Of course it would create problems for Malaysia and Indonesia, because as sure as anything once you make the last step of the voyage safe, that is from Malaysia or Indonesia to Australia, then the people who come down that pathway will not be restricted to those who are courageous, you’ll get some tyre-kickers coming as well. There’s no doubt about that, it’s just human nature. People think, ‘Oh well, we’ll give it a try.’ And that will create demographic problems in Malaysia and Indonesia because those people will be told, ‘No you’re not a refugee, you’re not going to be resettled.’ So Malaysia and Indonesia would have to send them back to their country of origin or have to tolerate them lurking in the fringes of their society, whatever is the case. We would have to persuade Malaysia and Indonesia to cop that foreseeable side effect, and that would cost us some money as well. So maybe there’s another $1,000 or $1,500 million to be spent pacifying them and persuading them to deal with the consequences of what we want to do. It’s still a lot less than $5,000 million a year.


JD – Julian, you are a supporter of the arts. What role does art in its various forms have to play in changing our culture and character as a society for the better?


JB – Wow, that’s a difficult question. I don’t think I can answer that. I do think it’s fundamentally important, I’ve always thought the arts are important. Before I got caught up in this issue of asylum seekers, the arts were my dominating interest and had been for most of my life. I take it as an article of faith that the arts are important. But I think I can point to a couple bits of evidence for that. For example, when Allied Forces trashed the great library in Baghdad in 2003 no one, no one, not even the hard-edged economists tried to put a dollar value on the loss that was involved. Everyone understood the loss was a cultural loss, and culture goes much deeper than money. So there is in that simple example an interesting, tacit acknowledgement of the importance of culture.

Another oblique reflection of the same point: as a thought experiment, imagine a room of 50 people, imagine they are people of reasonable intelligence, reasonable education, not experts, but not fools, and give them a list of names drawn from the last 5 or 6 centuries, and I guarantee that disproportionately they will recognise the names of painters, poets, novelists, sculptors, composers. They won’t recognise the names of politicians, accountants, lawyers, economists (all the things that we regard as important in our daily lives) and I think in that recognition there is a tacit acknowledgement that its contributions to culture which are of the most enduring value.

Actually, there’s another way of testing this: most people are familiar with really famous images, like the Mona Lisa or Michelangelo’s paintings on the ceiling of the Sistine Chapel; there are a handful of really famous images that would be recognised by almost anyone. Let’s imagine the circumstance where one of those works, or maybe all of them, fall into the hands of a private collector, let’s just pretend, and let’s pretend that private collector in a great splash of extravagance buys them and then declares to the world, ‘I’m going to lock them away, and I will be the only person who will ever see them again.’ Most people I suspect would find that very offensive, even though they would acknowledge that it’s a right of private ownership.

Take it another step, suppose the collector said, ‘I bought these things because I hate them and I’m going to destroy them’. Again it’s a right of private ownership, but most people would be horrified that something which is part of our cultural heritage would be destroyed and forever lost. If you imagine that this would be the response, the only rational explanation is a universal sense that we have a shared cultural heritage, which is genuinely important.