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Ticking down to a possible date with executioners

Two Australians, Myuran Sukumaran and Andrew Chan, are edging closer to death by firing squad in Indonesia. EPA/Made Nagi

Tick tick tick. Ticking down. Inexorably. To a designated time when I will be blindfolded in a white shirt with a reflective tag over my heart. I will be given three minutes to “calm down”, and have a choice to lie, sit or stand. A few metres away a firing squad will be ordered to “do it”, to fire at our hearts. If necessary, the commander will finish the job by firing a shot into my brain from very close range. And all this is legally sanctioned, indeed legally required. Tick tick … The guns will fire. And after that … .

Just after midnight Indonesian time on January 18, six people convicted of drug offences were executed by firing squad in Indonesia. Five of the six were foreign nationals. The executions have a chilling resonance for the two ringleaders of the Bali 9: Myuran Sukumaran and Andrew Chan have been on death row for nearly a decade and time could now be running out. On December 30, Sukumaran’s plea for executive clemency was rejected by new Indonesian President Joko Widodo. Chan is yet to receive news of his bid for clemency, but Widodo has signalled that he is unlikely to grant clemency for drug crimes.

The Australian government is and will be pleading for the lives of the two men. Indeed, Indonesia itself has pleaded with other countries for clemency for its nationals on death row.

However, it probably wasn’t helpful for Prime Minister Tony Abbott to state that the matter will not “jeopardise” relations with Indonesia. In the wake of Saturday’s executions, Brazil and the Netherlands recalled their ambassadors from Indonesia, as two of the six executed were, respectively, their citizens. It is premature for Abbott to signal that Australia will not do the same.

Throughout their incarceration in Kerobokan prison in Bali, it appears clear that Sukumaran and Chan have been rehabilitated. Sukumaran is, for example, a talented painter who has taken lessons from, and formed a friendship with, famed Australian painter Ben Quilty. He has helped set up rehabilitation programmes for other prisoners, such as a computer room and art classes. Chan also organises courses in prison and leads its English-language church services. The governor of Kerobokan pleaded for clemency for Chan in an earlier judicial proceeding. As Sukumaran has said, what good does it do to kill them now?

Human rights law and the death penalty

Under international human rights law, the death penalty is permitted in the narrowest of circumstances. Article 6 of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees the right to life, but paragraph 2 outlines an exemption for the death penalty. This is unsurprising as the ICCPR was adopted in 1966, a time when most countries, including Australia, still used the death penalty. In practice, only about a quarter of the world’s countries retain the death penalty today.

Under article 6(2), the death penalty is permitted only for “the most serious crimes”. That phrase has been interpreted by authoritative bodies as being limited only to intentional killing, that is murder. Drug trafficking, while serious, is not a “most” serious crime. So Indonesia, which acceded to the Covenant in 2006, breached the ICCPR with the executions of Saturday night, and will do so again if it executes Chan and Sukumaran.

The duo has spent nearly ten years on death row. The “death row phenomenon” refers to the consequences of an extended period of time on death row, where stress inevitably builds up over one’s ever-approaching date with an executioner. Some domestic and international courts have found that the “death row phenomenon” constitutes cruel and inhuman treatment in breach of human rights standards. The Privy Council has, for example, found that no one should spend more than five years on death row: sentences must be commuted after that time. The UN Human Rights Committee (the body which supervises and monitors the ICCPR), however, does not condemn the death row phenomenon as it does not wish to encourage States to execute people faster. In its view, “life on death row, harsh as it may be, is preferable to death”.

However, there does seem to be unseemly confusion in Indonesia over the processes available for appealing a death penalty. It took over a week for Widodo’s rejection of Sukumaran’s plea to be properly communicated. Sukumaran’s Indonesian lawyer has just announced plans to seek further judicial review of the sentence. It is at present unclear whether such an avenue is available. Such uncertainty is unnecessarily cruel to a person facing a State-sanctioned order of termination.

Australia’s involvement in the capture of the Bali 9

The Australian Federal Police (“AFP”) tipped off the Indonesian authorities about the Bali 9. It is arguable that this action has breached Australia’s own obligations under the ICCPR.

Australia has abolished the death penalty. As Article 6(2) applies only to those States that have not abolished the death penalty, the death penalty exception in article 6(2) has no application to Australia. Further, Australia is a party to the Second Optional Protocol to the ICCPR, which prohibits the death penalty in all circumstances.

Australia therefore has an obligation not to execute people, nor to expose them to a real risk of capital punishment in another country by, for example, extraditing them without assurances against execution. Indeed, Australia has recently stated that it will not extradite a convicted murderer to Malaysia without Malaysian guarantees that the man will not be executed.

The same obligation may mean that Australia must not alert foreign authorities to the commission of a capital crime, particularly if the alleged perpetrators can easily be apprehended in Australia. The argument is probably strongest with regard to Chan, who was on a plane alongside four “drug mules” intending to carry heroin from Bali to Australia, when apprehended by Indonesian police. Those five people could easily have been arrested upon arrival in Australia. Such a strategy would have ensured the non-exposure of the five, including Chan, to capital punishment.

The clock

Of course, there are many other arguments one could raise about the situation. For example, Wododo has justified the executions on the basis that Indonesia faces a “drug emergency”, implying that capital punishment somehow helps to reduce that crisis. Yet the death penalty does not in fact seem to work as a deterrent.

But I leave readers where I began. And that is the grisly reality that human beings within the apparatus of government are setting dates with death for designated individuals. Other human beings are compelled to carry out that task. In the 21st century, I cannot fathom that that is conceivably within the appropriate bounds of the role of the modern State.

And for six men and women last Saturday:

Tick tick tick ….. time out.

Rights to bigotry and green lights to hate

AAP/Stefan Postles

Poor George Brandis. Our Attorney-General seems to have wedged himself on the issue of racial vilification. Soon after the election of the Abbott government, Senator Brandis defiantly declared that repeal of Section 18C of the Racial Discrimination Act would be his first task as Australia’s first law officer.

Nearly five months later, we finally have an exposure draft of new legislation to consider. Apparently, the draft is watered down from Brandis’ original proposals due to cabinet and party room displeasure.

As I have explained before and below, I have some support for a move to amend s18C. However, I must acknowledge that I am not a person who has suffered from racial abuse, so I have not experienced its torment. Further, the optics of this issue being Brandis’s first business, investing the need to repeal with such great urgency, are terrible. Are restrictions on racist speech really one of the gravest harms to freedom in this country? Please.

Section 18C has sat, quite uncontroversially, on our statute books since 1995, including the entire period of the Howard government. It came to prominence when conservative columnist Andrew Bolt was found to have breached the provision in 2011 by the publication of two columns about fair skinned Aboriginal people.

Bolt queried, in scathing and inaccurate terms, certain people’s Indigenous identity.* Since then, Bolt has thundered about his own martyrdom on the pyre of free speech in the many media platforms available to him, enthusiastically cheered by supporters such as the Institute of Public Affairs (“IPA”). Those supporters include Brandis, who has made it quite clear that the law will be crafted to ensure no repeat of the result in the Bolt case.

Brandis seems to have assumed that the repeal of s18C would be relatively uncontroversial, mistaking the hubris of Bolt and the IPA for genuine community concern. Bolt and the IPA, perhaps an easy constituency for Brandis to pander to in opposition, are a tricky constituency to satisfy in government.

The right to bigotry

On Monday, Brandis proclaimed that “people have the right to be bigots”, an embarrassing moment made worse by the fact that it was aimed at the ALP’s first Indigenous parliamentary representative, Senator Nova Peris. Though I suspect he regrets the statement, Brandis is actually correct from a human rights point of view.

And not only that, people have an absolute unqualified right to be bigots! Article 19(1) of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees the right to freedom of opinion. People can hold any opinion, no matter how horrid or bigoted.

Where things get tricky is the right to act like a bigot, including rights to express bigotry. Such rights are qualified. There, one has to look at other provisions, which are qualified, namely Articles 19(2), 19(3), 20 and 26.

The exposure draft

The proposed Freedom of Speech (Repeal of s18C) Bill 2014 repeals s18C, along with s18D, which currently provides a “free speech defence” to s18C offences. Section 18E is supposed to go too, which currently provides for employer liability (vicarious liability) for breaches of s18c by employees and agents. The draft then provides for replacement provisions.

Section 18C currently renders unlawful any public act which is reasonably likely to offend, insult, humiliate or intimidate another on the basis of race (subject to exemptions in s 18D) if the act is done because of that other person’s race. The proposed amendment would remove the prohibitions on offensive, insulting or humiliating acts.

Offence and insult

I have previously explained that the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech: there are no countervailing human rights to freedom from offence or freedom from insult.

It is true that the terms, “offence” and “insult” have been interpreted so that they mean more than “mere” offence and insult. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If “offence” and “insult” do not mean what they say, the prohibitions should go.

Humiliation

The prohibition on “humiliation” is also set to go. Humiliation is more serious than offence and insult. Humiliation on the basis of one’s race prejudices one’s right to be free from racial discrimination, a genuine human right that may permissibly override freedom of speech. Instead, the exposure draft favours freedom of speech, specifically the right to humiliate another on the basis of race.

Intimidation

Intimidation, the most serious of the current prohibitions, stays. As with humiliation, acts of racial intimidation infringe another person’s right to be free from race discrimination. Further, intimidation harms that other person’s right to security of the person under Article 9 of the ICCPR.

However, the exposure draft defines intimidation very narrowly. Intimidation will mean the causing of “fear of physical harm” to one’s person, one’s property, or to members of a group. “Psychological harm” is excluded. Yet fear of psychological harm to one’s person seems more intimidating than fear of physical harm to one’s property.

Bolt’s articles were found to be likely to intimidate less experienced lighter skinned Aboriginal people from self-identifying as Indigenous. The narrower definition of “intimidation” excludes Bolt’s articles from its remit.

Vilification

A new prohibition is added in the exposure draft, a ban on racial vilification, that is an act which incites hatred again a person or a group of persons. This is a true hate speech provision. Hate speech traditionally concerns the “incitement” of third parties by racist speech, rather than the effect of such speech on the targeted people themselves. Indeed, Bromberg J in Bolt’s case distinguished s18C from the concept of “race hate”.

Vilification is already effectively banned under the current provisions. Speech which vilifies must surely simultaneously offend, insult, humiliate or intimidate. Nevertheless, the new proposed additional prohibition is welcome. It encapsulates even worse behaviour than that which intimidates.

Clause 3

By whose standards is it to be decided that an act intimidates or vilifies? In the Bolt case, Bromberg J decided that the relevant standards were those of the target group, in that case fair skinned Aboriginal people, rather than those of the general community. Clause 3 reverses that decision: the standards are proposed to be those of the “reasonable member of the Australian community, not … the standards of any particular group within the Australian community”.

Clause 3 may be justifiable with regard to vilification, which concerns the reactions of third parties rather than members of the targeted group. Nevertheless, incitement of hostilities could arise between groups in circumstances where the general community is unaware of the nuances behind such hostilities.

Clause 3 is inappropriate with regard to intimidation. The general community may well be unaware of the intimidatory power of certain words or acts. For example, the word “cockroach” has genocidal connotations amongst the people of Rwanda and Burundi: would that connotation be understood by Australia’s general community?

Waleed Aly has eloquently aimed fire at clause 3. He persuasively argues that Clause 3 ensures that the standards of white people will essentially decide whether racial minorities should properly feel intimidated on a racial basis. The hypothetical reasonable person within the group that experiences the least racial intimidation and vilification will set this standard on behalf of those who are far more likely to have such experiences. In Aly’s words, “protection from racism becomes a gift from the majority”.

Clause 4

Clause 4 is the sting in the tail. Clause 4 provides a defence to any allegation of vilification or intimidation. It is worth reciting in full.

This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.

Clause 4 replaces s. 18D. Section 18D currently provides an exemption for similar acts, but only when done “reasonably and in good faith”. Bolt failed to benefit from s18D as the judge found his columns were neither reasonable nor written in good faith. The judge was influenced by the scathing manner of the columns and, in particular, their multiple inaccuracies.

Indeed, it is fair to speculate that Bolt’s columns breached the law of defamation as well as s 18C.

Bolt would be safe under Clause 4. Clause 4 contains no requirements of reasonableness or good faith. Therefore, it seems to provide a defence for anything written or broadcast in the mainstream media, and probably any blog. Numerous tweets may be fine too. Preachers would be able to pronounce intimidation and hate from the pulpit, as could academics and teachers in the classroom. Artists could provoke intimidation and hate in public performances and displays.

Indeed, racist personal disputes that erupt beyond the private domain, or random extreme verbal attacks, may remain all that is caught within the racial vilification net. Yet one can hardly doubt the potential power and harm of intimidation and hate which might pour forth in the many public spheres protected under clause 4.

Waleed Aly argues that the defence may go even further. He states:

Precisely how it is possible to racially vilify someone without discussing a “social” matter is beyond me.

Prediction: a backdown

I do not believe that this exposure draft will survive, especially the extraordinarily broad exemption in clause 4. Government MPs seem eager to point out that the exposure draft has been released for extensive public consultation before being finalised, signalling the likelihood of change.

It may not in fact be politically possible to enact or even introduce a law that ensures no repeat of the Bolt case, given the extensive findings against the columnist in that case. Senator George Brandis may find that he cannot satisfy those unruly constituents, Bolt and the IPA, with his first order of business.

** this sentence was altered on 5/4/14 after online discussion with Luke Pearson.

The Biennale boycott blues

AAP/Quentin Jones

The Sydney Biennale has commenced after weeks of controversy over the severing of its relationship with Transfield, the company that runs the detention centre in Nauru and which will take over the one at Manus island.

To recap, several artists withdrew from the Biennale in protest over its sponsorship arrangement with Transfield due to the latter’s involvement in offshore detention of asylum-seekers. Activists also put pressure on the Biennale. The Biennale eventually severed ties with the company, and Luca Belgiorno-Nettis, whose father founded Transfield and also helped found the Biennale, stepped down as the Biennale chairman.

The federal government has since weighed in. Malcolm Turnbull described the actions of the boycotting artists as “vicious ingratitude” before Arts Minister George Brandis upped the ante considerably. Brandis has written to the Australia Council, the federal body in charge of arts funding, asking that it develop a policy to refuse federal funding to any arts body which “unreasonably” refuses private funding.

Phew! So … what to make of all this. Below are my thoughts on the Biennale boycott.

Transfield and the corporate veil

The private companies Transfield Holdings and the Transfield Foundation, are not the same thing as the entity which runs and profits from offshore detention, the public company Transfield Services. Luca Belgiorno Nettis is an executive of Transfield Holdings, the company his father founded decades ago.

Transfield Holdings owns 12% of Transfield Services. It is apparently the second biggest shareholder in the latter company. 12% is a very sizeable shareholding in any public company, so it is in a position, if it wishes, to exercise some level of control over the actions of the latter. It also benefits considerably when the latter’s share price rises.

The Transfield Foundation is a company which runs the philanthropic activities of both Transfield Holdings and Transfield Services. Its money, therefore, is clearly linked to the profits of Transfield Services.

Arguments about targeting the wrong entity within Transfield make sense from a legal point of view. In law, they are separate entities. But the legal fiction that corporations are separated by a corporate veil cannot automatically be translated into a social fiction. In any case, the name “Transfield” conveys a certain meaning to the public, most obviously the public company that runs the detention centres.

Is Transfield Services doing anything wrong?

Transfield Services has won contracts to run Australia’s offshore detention centres. Offshore processing is probably legal under Australian law. In fact, it is the policy of both major political parties. So, it is arguable that Transfield is not doing anything wrong, and any disapproval of its relationship to the Biennale is a misguided tantrum.

Modern social expectations dictate that corporations have a responsibility to respect human rights. Respect for human rights does not equate with “legality under a country’s domestic law”. Our offshore detention system breaches human rights. For a start, blanket automatic detention of asylum-seekers amounts to arbitrary detention in breach of Article 9 of the International Covenant on Civil and Political rights.

Evidence also indicates that offshore detention in Nauru and Manus is cruel, in breach of both Articles 7 and 10. (The death of Reza Berati may indicate a breach of the right to life in Article 6, though that did not take place under Transfield’s watch).

So it is fair to link Transfield to human rights abuses. It has made a decision to get involved in a system of offshore arbitrary detention and will make considerable profits from that system. It is irrelevant that another company would have won the contract if Transfield had not. Nobody forced Transfield into its decision to bid for the contracts, and like any “person”, its decisions leave it open to consequences.

Here, the consequences for Transfield were the open condemnation of its activities by artists and others, as well as a great deal of publicity about its involvement in detention centres (which I suspect was not welcome).

Is the boycott inconsistent?

If Transfield can be targeted, other corporate sponsors might be targeted due to perceived wrongdoing. This argument assumes that many or even most corporations have skeletons in their closet, or even bright public skeletons that are apparent to anyone paying attention. And such an assumption is probably true, especially with multinational companies running multiple businesses in multiple sectors in multiple countries.

Brisbane’s Gallery of Modern Art is currently being criticised for its association with Santos, due to the latter’s environmental record. So far, the Gallery is staunchly standing beside Santos. Having said that, offshore processing is a particularly “hot” topic in Australia at the moment, so it is perhaps not surprising that Transfield was singled out in this way.

Any boycott can be criticised for inconsistency. Any boycotter can be challenged with the allegation that he or she is boycotting X while ignoring the far worse behaviour of Y. This criticism is commonly made of the Boycott, Divestment and Sanctions (BDS) movement against Israel.

However, taken to its logical end, such an argument indicates that one cannot boycott anything unless one first boycotts and highlights Russian expansion, Syrian aggression, Congolese rape, Sri Lankan impunity, Cambodian corruption and Ugandan homophobia (as possible examples).

There is a descending scale of horribleness before one can legitimately complain about offshore detention centres, and people will rank the horribles in different orders. Such an argument impugns the success of the anti-apartheid movement, given the role played by economic sanctions and boycotts in bringing an end to white minority rule in South Africa. No activist, except perhaps those whose special target is North Korea, can satisfy such scrutiny.

There are many and varied human rights issues in the world and in Australia, and they will all attract some sort of activist constituency. Individuals, alone or in concert, are entitled to compete in the marketplace of ideas in arguing that X or Y should be boycotted, regardless of whether X and Y are “better” than A or B.

One hopes that the strongest arguments prevail, though that is not a certainty. Human rights abuses and complicity in them are not justified by the fact that other human rights abuses are or might be worse. “Tu quoque” is a distraction rather than a valid excuse!

The Biennale takes government money

The Biennale continues to take government money rather than Transfield money, when it is undoubtedly true that the Australian government is far more responsible for offshore processing (or non-processing) policies than any company.

Yet public funding cannot be compared to private funding. Public funding comes from the taxpayer.* It is “our money”. If one is to reject public funding based on disapproval of certain government policies, one logically has to reject publicly funded projects such as Medicare and university education. One loses out twice if one is in fact a taxpayer, as one is rejecting the benefits of “good spending” due to disapproval of “bad spending”.

Furthermore, public funding serves a different purpose to philanthropy. The arts are funded as public goods. Corporate philanthropy has an element of quid pro quo: money is donated, and in return the corporation gets a warm and fuzzy brand boost. That is not a criticism of philanthropy: it is a description of it.

In any case, the arts are funded via the Australia Council, which is supposed to operate “at arm’s length”, independent of government interference. It has zero input into the government’s asylum seeker policy. Transfield is much more implicated in that policy than the Australia Council.

“Vicious ingratitude”

In making his accusation of “vicious ingratitude”, Malcolm Turnbull was perhaps thinking of his own role as a very rich person who enjoys the arts, and probably donates to them. But sponsorship is different to mere donation.

As noted above, there is a quid pro quo for a sponsor. The brand is associated with something “good”, even groovy or funky or posh, such as the arts. Associated perks such as free tickets accrue to employees and clients.

I agree here with the recent statement from the Biennale artists’ Working Group: Turnbull’s statement “sets up a master-servant relationship that doesn’t reflect what corporate sponsors gain from their relationships with artists and arts organisations”.

Brandis and “unreasonable” refusal of philanthropic funds

So we come to the intervention of Arts Minister George Brandis. First, this intervention might undermine the independence of the Australia Council. However, I want to concentrate instead on the broader implications.

News Corp columnist Chris Kenny talks of Brandis’s actions as reinforcing freedom of expression? What, the inalienable right to sponsor? The right to inflict a brand against the conscience of an unwilling recipient? Compulsory gratitude is no great win for free expression!

Perhaps Brandis’s intervention is designed to save taxpayer money, as arts bodies should take private funds and save public dollars. Yet the Biennale, to my knowledge, has not asked for the government to make up the shortfall. Certainly, on a case by case basis, it is fair that public funding decisions be partly driven by the viability of an artistic event, and refusal of private funds might impact on that viability.

But that doesn’t justify Brandis’s broadbrush assault on freedom of conscience. Any person has a right to reject an association with a business that he or she disapproves of.

To be fair, Brandis has only threatened withdrawal of government funding. No individual has a right to government funding for their artistic endeavour. But the conditioning of government funding on depoliticised behaviour, and the rejection of personal conscience, is a strange tactic from an Attorney General who is openly committed to “freedom”.

This sort of government action could lead to a very skewed public debate, where the privately funded can express opinions freely, but the publicly funded are more muzzled. In any case, art should be opinionated and brash, not craven and cowed.

Finally, Brandis’s suggestion may be a tad hyprocritical, given that the Liberal Party, which receives certain amounts of public funding, rejects donations from tobacco companies, which operate a perfectly legal (but toxic) business.

AAP/Ehssan Veiszadeh

The right not to boycott

In resigning as Chair, Luca Belgiorno-Nettis talked of harassment of himself, the Biennale organisers, and I have heard talk on Twitter of harassment of non-boycotting artists.

I do not believe that anyone is suggesting that the boycotting artists engaged in such harassment. However, it is certainly possible that some harassment occurred.** Unfortunately, it is not always possible to prevent the misguidedly overenthusiastic from crossing the line into bullying and harassment, especially in this age of social medial.

People have a right to engage in a boycott, especially for reasons of conscience. It is also important to respect the right not to participate in or support a boycott.

Effectiveness of the boycott

The most common criticism of the boycott is that it has not been, and was never likely to be, effective. Offshore detention will continue as bipartisan policy for the foreseeable future, and Transfield will not terminate its Nauru and Manus contracts.

However, there is no “effectiveness” criterion for legitimate political action. Otherwise the opportunities for political action from the non-powerful are very limited indeed. Political action can be seen as means to an end, but also an end in itself, as an expression of the artists’ conscience in this case.

Furthermore, the boycott may be part of a long game. Transfield is already being targeted through the lobbying of industry pension funds. Those funds may or may not respond: so be it.

It may even be that the boycott is counterproductive, in the sense that the future of the Biennale in particular and corporate philanthropy in general may be threatened. This scenario strikes me as bit doomsday, but only time will tell. Like Transfield, the Biennale boycotters must also live with the consequences of their decisions.

A related criticism is that more effective and constructive protest actions were available. For example, the artists could have highlighted the injustices of offshore detention and even Transfield’s involvement through their art. Maybe. But, as my friend Brynn O’Brien has pointed out, such an approach smacks of “approved protest” in a “sanctioned space”, as opposed to unwieldy unpredictable protest which has clearly made Transfield and the government feel pretty uncomfortable.

Finally, given the extraordinary reaction from the government, it seems clear the Biennale boycott got under its skin. Otherwise, why the rush to try to shut down repeats of such action? Which means it may have had considerable effect. After all, weeks later many are still talking about it and discussing it and thinking about it. And I suspect that more people are going to pour through those Biennale doors.

    • My discussion at this point is influenced by a great Twitter discussion with Brynn O’Brien and Sean Mulcahy, which is “storified” here.
  • ** I altered this paragraph on 25/3 as the original assertion of a belief that harassment had occurred was based on hearsay, especially on twitter. Furthermore, regarding the right not to boycott (and frankly the right to boycott): no one is free of attempted persuasion or even criticism. However, such activities should not cross a line into actual harassment and bullying.


This piece was first published at the Castan Centre for Human Rights' blog.