Linda Kirk, Senator for South Australia
First Speech 28/2/2002Thank you, Mr President, and congratulations on your election to office. This
is the first and last time that I seek to have the adjective `maiden' attached
to a speech that I give in this place. I feel privileged to take my seat
in the Senate on the centenary of female suffrage in the Commonwealth.
At Federation, only South Australian women had the vote. Our founding
fathers did not include women's suffrage in the Constitution. It was only
by the Commonwealth Franchise Act 1902 that Australian women were granted
the right to vote in the second federal election in 1903.
The three women who nominated for the Senate and the one for the House
of Representatives for that election marked the first occasion on which
women nominated for any national parliament within what was then the British
Empire.
It took another 40 years for any woman to be elected to the federal parliament.
Dorothy Tangney from Western Australia was aged 32 when she became the
first woman senator, elected in 1943. She went on to represent the Australian
Labor Party for the next 25 years to become the longest serving female
parliamentarian. After 100 years, it remains that only some 50 women have
been elected to the Senate.
My colleague Senator Penny Wong and I are only the second and third women
senators from the ALP from South Australia. The election in 2001 saw a
record number of six women enter the Senate—five of them representing
the Australian Labor Party. I congratulate my colleagues on their election.
The concerns of the pioneering women who have preceded me in this place,
including the cause of increasing the representation of women in Australian
parliaments, remain challenges today. These concerns are among the reasons
that motivated me to stand for election to this place.
My great-grandfather, Frederick Thomas Pullen, was a stonemason in London
who struggled to find regular work. When the Titanic sank on its maiden
voyage from London to New York in April 1912, the cost of passage from
London to far away places dropped dramatically. It was the maritime equivalent
of the fear of flying after September 11. Just one month later, my great-grandparents
borrowed £100 to take the voyage from London to Australia on the
Ophir. They arrived some two months later in Adelaide with their six children,
10 shillings and a kitchen chair. My grandmother was born soon after,
as their seventh child, on 31 October 1912 and was named Violet Adelaide.
My great-grandfather was a proud trade unionist and a Labor man. In 1953
his indentures of apprenticeship were given to the United Trades and Labor
Council in Adelaide. Through stories told to me by my father, I learned
of his strong principles and pride in being a working man and a trade
unionist.
After my father left school at the age of 13, he completed a trade and
went on to retire, some 50 years later, as the state manager of a manufacturing
plant. Although they were not themselves educated beyond secondary school,
my parents encouraged me to make the most of my state school education
and to gain a university degree.
With their support, I completed a first class honours degree in law and
a degree in economics at the University of Adelaide. After some years
in legal practice, a Commonwealth scholarship enabled me to take a Master
of Laws degree at the University of Cambridge. As I enter the Senate I
am writing up my doctoral thesis, on the separation of judicial power,
at the Australian National University.
For the opportunities and support given to me over a lifetime, I thank
my parents, Gloria and Les Kirk, who are in the gallery today, and my
brother Steven, without whose love and encouragement I would not be standing
here today making my first speech to the Senate.
I would also like to thank my staff: Carla, Nimfa, Alex, Chris and Xanthe,
who have been a great source of support and assistance to me in my first
few weeks as a senator. I would also like to thank Helen, who travelled
from Perth to be here today to hear me speak.
While at university I worked part time as a checkout operator at a department
store. At this time, I joined the Shop, Distributive and Allied Employees
Association, the SDA. I was an active member of the SDA and won several
of its education scholarships, which assisted me to complete my undergraduate
studies at university.
Following my election to this place, I worked at the SDA as an industrial
officer representing retail workers in their employment disputes. I thank
the SDA and, in particular, its South Australian secretary and national
president, Don Farrell, and his wife, Nimfa, who are also here in the
gallery today, for their faith in me, their support for my preselection
and for their friendship over many years.
With them, I thank the delegates to the South Australian state conference
who, in April 2000, supported me to represent the Australian Labor Party
and my state in the Senate. I shall fulfil their expectations and those
of the many South Australians who elected me in November last year. I
must earn the continuing privilege to represent my state and the Australian
Labor Party in the Senate.
In 1988 I joined the Australian Labor Party as a student. I was attracted
to its policies and philosophies, which reflected the values that had
been instilled in me by my parents and my background. These core values
include: the right of individuals to develop and apply their talents and
abilities for self-advancement supported by high standards of public education
and training; an unqualified opposition to discrimination based on race,
colour, ethnic origin, gender or sexuality; recognition of the prior possession
of Australia by the Aboriginal people; belief in and assistance for developing
the Australian population through family support and further migration,
including a substantial intake of refugees; the right of workers to organise
and bargain collectively supported by a robust, independent and fair industrial
relations system; and the belief in a strong, democratic and republican
system of constitutional government underpinned by strict separation of
powers and adherence to the rule of law. These core beliefs led me to
join the ALP some 15 years ago. They motivated me to stand for election
to this place. I will dedicate myself to their achievement.
I take the opportunity that this, my first speech, presents to be heard
without interruption—except perhaps by applause—to outline my
view of the importance of maintaining the underpinnings of our system
of constitutional democracy. On its first anniversary, my theme is the
Tampa incident and its aftermath.
To my mind, Tampa exposed this government's lack of respect for our democratic
institutions, the separation of powers and the rule of law. In the 17th
century, Sir Edward Coke told James I that he could not dispense with
the law. In 2001 the Tampa incident was characterised by prime ministerial
directions to dispense with the law and bypass the constitutional role
of the courts to protect the fundamental rights and freedoms of citizens
and non-citizens alike. The Tampa incident and its aftermath exposed that
our democratic system of constitutional government, underpinned by the
separation of powers and the rule of law, is under direct threat under
the stewardship of this government.
Last August, 433, mainly Afghani, asylum seekers were taken on board
the MV Tampa near Christmas Island. In accordance with the finest principles
of maritime duty, Captain Arne Rinnan defied government directions and
took his ship into Australian territorial waters on 29 August 2001. This
decision of the government to exclude these asylum seekers from the application
of Australian law, namely the Migration Act, was never explained except
for the rhetoric of the Prime Minister of `sending a clear message to
people-smugglers and queue jumpers that Australia is not a soft touch'.
On 29 August 2001, SAS troops boarded the ship to prevent asylum seekers
from landing on Christmas Island. No person was allowed to approach the
Tampa. The asylum seekers on board were dehumanised. The Australian people
were only allowed to see the images of tiny coloured figures on the deck
of the ship. On the same day, the Prime Minister introduced the Border
Protection Bill 2001 into the House of Representatives. On 31 August 2001,
the Victorian Council for Civil Liberties and Eric Vadarlis, a concerned
citizen and Victorian lawyer, filed applications in the Federal Court
challenging the detention of the asylum seekers on board the Tampa and
seeking orders to compel the government to bring the asylum seekers to
the migration zone where their applications for asylum could be processed.
Counsel for the VCCL and Vadarlis appeared pro bono in the Federal Court.
In finding for the asylum seekers, Justice North noted that the issues
involved the operation of the rule of law and the relationship between
parliament, the executive and the judiciary. He held that statutory authority
was required to arrest and detain the asylum seekers. The Prime Minister's
reaction to Justice North's decision was to reassert the sovereign right
of a state to control its borders. He suggested that Justice North's decision
represented an attempt by the judiciary to curtail national sovereignty
as to matters which `should be decided by democratic governments'.
On 17 September 2001 the Commonwealth's appeal against the decision of
Justice North was upheld. By a majority of 2-1, with a strong dissent
from the Chief Justice, the full Federal Court held that the Commonwealth's
action was a valid exercise of executive power under section 61 of the
Constitution. An application by Vadarlis for special leave to appeal to
the High Court was refused. Thus, by a bare majority on appeal, the exercise
of the executive power of the Commonwealth in the detention of the Tampa
asylum seekers was not restrained by the courts.
During the appeal process the government moved quickly to ground executive
power in this area in legislation. In his second reading speech on the
Border Protection Bill, the Prime Minister emphasised that the purpose
of the legislation was to ensure that decisions as to who comes into this
country and the circumstances in which they come be determined by the
executive and, secondly, to remove from judicial oversight, that decision.
It was never made clear by the government just what was the defect in
Commonwealth executive power that the legislation was designed to remedy.
Albeit by a bare majority, the government had been successful in the Federal
Court and the Prime Minister's public statements suggested that he believed
that there was sufficient legal authority for government action to demand
the removal of the Tampa and the asylum seekers. In the Prime Minister's
words, the purpose of the legislation was `for more abundant caution'
and to `ensure that there is no doubt' about the government's ability
to order vessels to leave Australian waters. The bill sought to remove
any future judicial scrutiny, including by the High Court, of the actions
of government agents.
The Labor Party opposed the August bill, with members in both houses
noting that it would have given an unnecessary, unreviewable and absolute
discretion to officers of the Commonwealth. The Senate's rejection of
the August bill saved the government from the almost certain embarrassment
of the bill being declared unconstitutional by the High Court. The government
then presented a second series of bills from which the more offensive
provisions of the August bill had been removed. These bills were supported
by Labor.
The Tampa incident formed the dramatic backdrop to the 2001 federal election
in the blatant exercise of dog-whistle politics. Full-page advertisements
in all newspapers on polling day pleaded a policy of prejudice: `We decide
who comes to this country and the circumstances in which they come.' The
clenched-fisted John Howard represented the focal point of the coalition's
campaign. During the campaign, the Prime Minister said:
The circumstances surrounding the Tampa are particular but they are nonetheless
a metaphor for the dilemma this country faces.
I would ask: of what `dilemma' is Tampa a metaphor? Plainly, it is how
to keep asylum seekers out of this country.
But, on a deeper level, the `dilemma' that the Prime Minister saw, I
believe, was how to construct a new relationship between the parliament,
the executive and the judiciary. What remains unsettled following the
2001 `Tampa' election campaign is the question of who and what constitutes
the `we' in the statement: `We decide who comes to this country and the
circumstances in which they come.' The identity of the `we' is possibly
the most crucial question raised by the Tampa incident and the 2001 election
campaign. Is it merely the royal plural adopted by a Prime Minister confirmed
in power by the policies of prejudice?
To my mind, these events raised the question of which of the three arms
of government is to be supreme in our constitutional system. On a superficial
level, it could be said that the parliament was successful in asserting
its control over entry into Australia of asylum seekers in passing the
coalition's legislative program. However, the passage of the laws and
the effective grounding in statutory authority of the executive's otherwise
untrammelled power to detain the Tampa asylum seekers veiled the more
central issue of the consolidation of executive power at the expense of
the parliament and the judiciary. The `we' in the election statement,
`We decide who comes to this country and the circumstances in which they
come,' is clearly a reference to the executive government.
The question of who should have the final say on migration issues has
been, and will continue to be, a source of confrontation between the executive
and judiciary during the term of this government. Building on earlier
attempts to restrict review of migration decisions, the government's first
Tampa bill, rejected by the Senate, went a step further and sought to
exclude such decisions from any form of judicial review including by the
High Court. Such legislation marks the continuation of what appears to
be a deliberate policy of this government of undermining a fundamental
principle of our constitutional system of government—namely, the
separation of powers.
At the celebration of the 25th anniversary of the establishment of the
Federal Court, on 7 February 2002, the Attorney-General said that reducing
the number of time wasting migration cases had been a major rationale
of the Tampa legislation. In this regard, attacks on the legitimacy of
the judiciary as the third arm of government in a democratic system have
been a consistent focus of the Prime Minister and his ministers. In response
to criticisms of the High Court's decision in the Wik case by the then
Deputy Prime Minister, the then Chief Justice of the High Court, Sir Anthony
Mason, noted that these criticisms:
... reflected a lamentable failure to respect the independence of the
judiciary and a failure to appreciate the importance of the rule of law
as a central pillar in our society.
Viewed against this background, one cannot help but think that the government
seized on the Tampa incident as an opportunity to gain popular endorsement,
and hence legitimacy, for its attempts to oust the role of the courts
in our constitutional democracy. The Tampa incident highlighted the government's
contempt for the rule of law and the separation of powers. This was evident
in the government's attempt to recover costs against the lawyers who acted
pro bono to promote the interests of asylum seekers on board the Tampa.
In a press release in October last year the Attorney-General said:
It is fair and appropriate that the Commonwealth seeks to recover at
least part of the thousands of taxpayers' dollars that we spent responding
to what we consider was an unnecessary court action. The litigation was
not in the public interest, rather it was an interference with an exercise
of the executive power of the Commonwealth.
When asked whether the application for costs from the applicants' lawyers
would act as a disincentive to the bringing of public interest litigation
by lawyers and publicly-minded organisations, the Attorney-General responded,
`Well that regrettably might be a consequence but this is a very special
case.'
How was the Tampa litigation a very special case? The Attorney-General
said that, from a government perspective, the lawyers were `promoting
unlawful activity'. The subtext of the Attorney-General's statement and
the government's attitude is that in daring to challenge the executive
power of the Commonwealth, the lawyers were acting contrary to the public
interest and were therefore were deserving of an order of costs against
them.
The High Court in the special leave application— and taking its
cue from the High Court, the full Federal Court—dismissed the Commonwealth's
application for costs. In its judgment, the majority of the full Federal
Court identified particular features of the Tampa case that `point powerfully'
against the `usual rule' favouring an award of costs. These included the
novel and important questions of law raised by the case concerning the
alleged deprivation of liberty of the individual, the executive power
of the Commonwealth, the operation of the Migration Act and Australia's
obligations under international law.
I believe it is necessary to consider the Tampa incident in its wider
context and to reflect on the nature of the precedent it, and its legislative
aftermath, sets for the treatment of civil liberties in this country.
In a speech to graduates at the University of Sydney in May this year,
Justice Graham Hill of the Federal Court said that the restrictions on
judicial review of migration decisions effected by the Tampa legislation
meant that he:
... could not do justice at all ... it is a dangerous precedent. This
time it is refugee decisions that, while wrong, cannot be challenged.
Next time it might be some other decision that could personally affect
you and your rights.
Not one minister in this government—and certainly not the Attorney-General—has
seen it as his or her business to defend the separation of powers that
is at the heart of our constitutional system. The fundamentals of our
democratic system are being seriously challenged by the actions of this
government. Government ministers have attacked the High Court and the
Federal Court. The government has politicised the Public Service, the
office of the Governor-General and the armed forces. One may well ask:
what is left? These institutions are meant to be apolitical arms of government
with each functioning independently of the others. We pride ourselves
in Australia on our democratic institutions and our respect for fundamental
freedoms. Plainly, we must be concerned that the government-led attacks
on our democratic institutions in the present climate will only escalate
and that the civil liberties of citizens and non-citizens alike will be
sacrificed. In this place, I will make it my business to oppose this trend,
whether it be the government's proposed ASIO legislation or whatever else
this government sees fit to impose on the Australian people.
In a recent article published in the Public Law Review, Pringle and Thompson
argued that the Tampa incident has highlighted the lack of debate in Australia
about the philosophical underpinning of Australian democracy, the nature
of constitutional government and the place of the separation of powers
within a system of responsible government. They argue that underlying
the Tampa incident and its legislative aftermath is a conception of democracy
that is seen as resting on popular will expressed through a strong executive—a
not unprecedented combination in authoritarian governments. In the opinion
of these scholars, the Tampa incident represents the rise in Australia
of a majoritarian conception of democracy. This conception views democracy
as the public will being given effect to by a strong executive government
with limited oversight by the parliament and the judiciary. Pringle and
Thompson observe that, despite the common view that the Tampa legislation
was a response to the wishes of the Australian people as expressed through
their parliamentary institutions, it in fact highlights the shortcomings
of our democratic institutions in the face of a determined executive.
In a constitutional system, the strength of its checks and balances are
put to the test during times of political crisis. The Australian constitutional
system was severely tested by the events of 1975. Posterity may well judge
the Tampa incident and its aftermath as another significant test of the
strength of our constitutional system and its entrenched separation of
powers. The Tampa incident and the events of September 11 were manipulated
by the government to promote legislation that undermines Australia's standing
in the international community with respect to human rights and to exclude
the role of the courts as constitutional umpire. The legislative aftermath
to the Tampa incident highlights the threat to the separation of powers
presented by a government that views judicial review of executive action
with overt hostility.
The `we' who decides who comes into this country and the circumstances
in which they come must include the courts and the parliament alongside
the executive. I will defend these fundamental issues and principles in
this chamber. I look forward to contributing to this and other debates.
Thank you, Mr President, and honourable senators, for your indulgence
in listening without interruption to this my first speech.
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