Australia: a parable on authoritative oppression and the nature of conformity

I am not pessimistic. I just see everything as it is.

When one lives in a society that is essentially not free, it is the obligation of every thinking person to attack obstacles to freedom in every way at his disposal…

Jan Nemec – Director The Party and the Guests (O slavnosti a hostech)

O slavnosti a hostech, is based on a novella by Ester Krumbachová. Krumbachová was an artist, costume designer, screenwriter and one of the most important personalities of the Czech New Wave. She was banned by the communist regime from working because of her thinly veiled attacks on, and criticism of, Czechoslovakian society under communism. Although her name is somewhat forgotten today, she was a major inspiration to the leading Czech filmmakers of the 1960s such as Vera Chytilová, Jan Nemec and Vojtech Jasný.

A parable on authoritative oppression and the nature of conformity

The film is a thinly veiled critique of the Communist regime and a parable on authoritative oppression and the nature of conformity. Although the movie was completed in 1966, it was not exhibited in Czechoslovakia until 1968, following a two-year struggle supported by many of the country’s leading intellectuals to have it shown. Its subsequent appearance in the 1968 New York Film Festival brought Nemec to world attention. In 1973 O slavnosti a hostech was formally banned in Nemec’s native Czechoslovakia for ever.

The plot begins as a group of ordinary men and women frolic in the countryside, enjoying an afternoon picnic. Suddenly several men appear from behind the trees. Despite their smiles, the men forcefully direct the group to a clearing. A leader appears and takes up a position of authority behind a small table. He sets forth the rules by which the group will be governed and their movements confined. The women comply readily; the men make attempts to protest, but in the end acquiesce as well. Tension and incipient violence hang in the air when suddenly an older man appears, apologetic for the stridency of his hirelings, particularly the leader whom he refers to as his adopted son, Rudolph. He invites the group to a birthday celebration in the forest.

Among the trees which line the lake, banquet tables have been set with elaborate dishes and candelabras. The host speaks about the small differences in shape and design which distinguish the tables, but proudly points out how all fit together into one distinguishable whole. The host is openly paternalistic and all present toast his benevolence. The harmony is interrupted when one woman discovers she is sitting at the wrong place. Her desire to move sets a chain reaction which disturbs the entire group, much to the dismay of the host. More urgent is the discovery that one of the guests has disappeared. Finding his departure intolerable, the host instructs Rudolph to bring him back. Delighted with this opportunity, Rudolph leaves with a sharp-toothed dog and is joined in the chase by the entire party. The tables are abandoned and the film closes with the sound of the barking dog.

O slavnosti a hostech deals with the themes common to all of Nemec’s films, although they are the best developed here. Most prominent are the restriction on human freedom, the reactions of human beings under stress, and the ease with which man utilizes violence. In O slavnosti a hostech, however, Nemec goes a step further and treats the degree to which men are complicit in their own fate. Like his other works, the film possesses a surreal quality, especially in its presentation of extraordinary occurrences in a realistic manner, such as the fairy tale-like outdoor court scene and the elaborate banquet.

The film was critically praised and Nemec was considered among the front ranks of the new Czech directors. His sensibility was compared to that of Franz Kafka, his compatriot, and Feodor Dostoevsky.

However, following the fall of the short-lived Dubcek government which allowed for artistic freedom in Czechoslovakia, Nemec was blacklisted and unable to make films after 1968. More than his other two features, O slavnosti a hostech was seen as a direct attack on Eastern European Communism and was responsible for his being barred from directing.

Men are complicit in their own fate

A fact that many Australian’s may be unaware of is The International Covenant on Civil and Political Rights (ICCPR) is not incorporated into Australian domestic law and is not directly justiciable or enforceable in Australia. Australia remains the only developed country in the world without a national bill or charter of rights.

Australia is a party to the First Optional Protocol to the ICCPR. However, the Human Rights Committee’s Views are not directly enforceable or justiciable under Australian law and no effective domestic mechanisms have been established to promote and monitor implementation of, and compliance with, the Human Rights Committee’s Views. The Howard Government considered the Human Rights Committee’s Views to be non-binding and frequently rejected them outright.

While the death penalty is not currently available in any Australian state or territory (as a result of local legislation) or for federal crimes, the failure of the Australian Government to incorporate the Second Optional Protocol to the ICCPR into domestic law means that the reintroduction of capital punishment in Australia under state laws remains a possibility. This issue becomes of more than passing concern in light of the sweeping legislative programmes that passed through, virtually unnoticed, every Australian parliament following the 9 September, 2001 (“9/11”) terrorist attacks in New York.

Following 9/11 the rules in Australia changed, based on current realities; they seem to have changed for good. Australia, contrary to what the government would like us to think, had and continues to have knowledge of or complicity in the use of torture or ill-treatment as a method of interrogation in terrorism investigations, including at Guantanamo Bay, Afghanistan and in Abu Ghraib. Australia has consistently failed to institute effective accountability and redress mechanisms that allow Australian officials to operate in a “culture of impunity”. This diminishes the effectiveness of prohibitions on the use of torture or cruel, inhuman or other degrading treatment – which are often cited by the government as a safeguard on ASIO’s expanded powers post-9/11[1]

Prohibitions on the use of torture or cruel, inhuman or other degrading treatment

The Australian Security Intelligence Organisation Act 1979 (“ASIO Act”) requires a detainee to be treated with humanity and respect for human dignity. However, the ASIO Act provides no penalty for contravention. The government notes that the use of torture is a criminal offence[2]; however these provisions do not cover conduct which may not amount to torture, but could be considered cruel, inhuman or degrading.

Further, there is an almost total lack of accountability, monitoring and redress for ill treatment. In Australia there are currently very limited means to initiate prosecution of the responsible individuals. In addition, there are no safeguards preventing the use of evidence obtained under torture or other prohibited conduct from being used in other contexts outside proving the commission of torture, cruel, inhuman or degrading treatment.

The current system under the Inspector-General of Intelligence and Security (“IGIS”) is insufficient as it does not investigate on its own motion and operates within the culture of secrecy. Publicising such investigations and outcomes would ensure that Australia does not, and is not seen to, condone the use of torture.

There are insufficient safeguards in Australia’s counter-terrorism laws to ensure compliance with the ICCPR. Since the events of 9/11, the Australian Government has passed 54 pieces of ‘anti-terrorism’ legislation. In the absence of a federal charter of rights, these laws have not been adequately assessed against, or counterbalanced by human rights. Provisions that permit or enable prolonged solitary confinement and incommunicado detention — including orders that may prohibit and prevent a detainee from contacting anyone at any time while in custody — raise serious concerns under the prohibition against torture and ill-treatment.

The conditions of detention of a number of individuals charged with various offences under Australia’s counter-terrorism laws raise serious issues with respect to humane treatment in detention.  Of particular concern are the restrictiveness and austerity of the conditions of detention of terrorist accused, the reversed burden of proof in bail applications and the very limited circumstances in which bail can be granted.

The Australian Government has refused to thoroughly investigate serious allegations of the torture of Australian citizens, including Mamdouh Habib and David Hicks. The Australian Government has adopted this position notwithstanding substantial evidence that, at least in the case of Mr Habib, Australian officials were consulted about Mr Habib’s treatment by authorities after his arrest in Pakistan and his proposed rendition to Egypt by the United States.

Other issues of Australia’s non-compliance with the ICCPR

There are significant regulatory gaps in the human rights obligations of Australian corporations, particularly in respect of activities outside Australia. In September 2008 the Norwegian government’s sovereign wealth fund (equivalent to Australia’s “Future Fund”) sold its $1 billion holding in Rio Tinto over environmental concerns at the Grasberg mine complex in West Papua, Indonesia. Rio Tinto, according to its website, is an international conglomeration, combining Rio Tinto plc, a London listed public company headquartered in the UK, and Rio Tinto Limited, which is listed on the Australian Stock Exchange, with executive offices in Melbourne. The two companies are joined in a dual listed companies (DLC) structure as a single economic entity, called the Rio Tinto Group. Because of the regulatory gaps in Australia’s human rights legislation, companies such as Rio Tinto are immune from accountability for actions they commit overseas.

Rio Tinto is not the only Australian mining company to have benefited from Australia’s non-compliance with the ICCPR. Australian based company, Anvil Mining, supplied air and ground transport to the army of the Democratic Republic of Congo for an operation that allegedly resulted in the slaughter of more than 100 people. Anvil’s air services and land vehicles were used to mobilise Congolese troops to suppress a reported rebel incursion at a town near Anvil’s Dikulushi mine.^[3]

The Australian Federal Police (“AFP”) investigated the actions of Anvil Mining in September 2005, but did not lay any charges. The AFP has not made public its reasons for failing to prosecute the company

Not to be outdone, Australasian Philippines Mining Inc (“APM”) is a wholly-owned subsidiary of Australian company OceanaGold, which failed to obtain the consent of the local community to establish its gold and copper mine in the Philippines. It is alleged that APM intimidated and harassed local landowners, bribed local officials and misrepresented the degree of support for the project.^[4]  Oxfam produced a damning report about the project, however APM continues its operations unaffected.^[5]

On Australia’s home front, the right to non-discrimination is only protected, where it is protected at all, in a piecemeal way. Australian equal opportunity and anti-discrimination laws do not cover all areas outlined in Article 2 of the ICCPR. Importantly, the laws fail to adequately address the issues of substantive equality, direct discrimination and systemic discrimination, and provide for numerous exceptions and exemptions that are inconsistent with the ICCPR.

There are a number of communities and groups that do not enjoy ICCPR rights on an equal basis in Australia, including particularly:

(a)            Indigenous Australians;
(b)            women;
(c)            people with a disability;
(d)            people from non-English speaking backgrounds;
(e)            homeless people;
(f)             gay, lesbian, bisexual, transgender and intersex people;
(g)            children and young people;
(h)            diverse religious communities; and
(i)             older persons.

The state of Indigenous health in Australia results represents serious human rights breaches. Indigenous Australians do not have an equal opportunity to be as healthy as non-Indigenous Australians.  Many Indigenous Australians do not have the benefit of equal access to primary health care and many Indigenous communities lack basic determinants of the right to life such as adequate housing, safe drinking water, electricity and effective sewerage systems.  Average life expectancy for Indigenous Australians is 17 years shorter than that of non-Indigenous Australians.

The death of Indigenous Australians in custody continues to be of serious concern, despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody over 20 years ago.  In 2003, 75 per cent of deaths in custody were of Indigenous Australians detained for minor infractions, such as public order offences.

Importantly, given the comments I made about the death penalty above; Australia in recent years has weakened its opposition to the death penalty in the Asia-Pacific region, including in relation to Australian citizens, taking the position that it is inappropriate to intervene in the internal affairs of a foreign country. However, under Prime Minister Howard’s and Commissioner Keelty’s stewardship, Australia’s stance to the death penalty in the Asia-Pacific region has moved far beyond a position of non-intervention to one of active participation. The arrests and subsequent convictions of nine Australians for drug trafficking in Bali resulted from the provision of agency-to-agency assistance, intelligence and evidence by the AFP.

I cannot think of a nation that is more torn than the Germans, you see workman but no human beings, masters and servants, young people and sedate, but no human beings…

Friedrich Hölderlin

Sadly, the same can now be said of Australia. We can only hope that fate spares us the anguish this state of non-humanness caused Germany in the twentieth century.