Back from the Brink is the second volume of a projected four-volume series that investigates the performance of the four Howard governments (1996–2007). The first dealt with the Liberal– National Party coalition’s election in 1996 and their first year in power. The work under review focuses on the period from ‘January 1997 when the Workplace Relations Act 1996 came into operation until the Aston by-election’ in July 2001. Back from the Brink is based on papers originally presented at a conference organised by UNSW Canberra, held at the Museum of Australian Democracy, Old Parliament House, on 14–15 November 2017.
Back from the Brink is the second volume of a projected four-volume series that investigates the performance of the four Howard governments (1996–2007). The first dealt with the Liberal– National Party coalition’s election in 1996 and their first year in power. The work under review focuses on the period from ...
The unusual case of David Hicks is one of the most spectacular and politically supercharged miscarriages of justice in Australian history. Like the infamous Boer War case of Breaker Morant, Hicks was politically scapegoated and grossly denied a fair trial. Unlike Morant – a war criminal who murdered prisoners of war – even Hicks’s accuser, the United States, never claimed that Hicks had hurt anybody or plotted to harm civilians. No wonder his military lawyer, Michael Mori, felt ‘ripped off’ getting Hicks, after being told he would be defending the ‘worst of the worst’. Whereas the young Australian government demanded answers from Britain about Morant’s trial, the Howard government repeatedly urged US military commissions to prosecute Hicks.
While Hicks’s moral choices still arouse passions, the legal injustice was put beyond doubt by the US decision to quash his 2007 conviction and to void his sentence in February 2015. Thirteen years after Hicks was detained in the Afghanistan conflict after 9/11, the US legal system finally accepted that his purported offence of ‘providing material support for terrorism’ was unlawfully retrospective. Hicks’s alleged conduct – being a part of Al Qaeda or Taliban forces against the United States and its allies – was simply not criminal at the time under international or US laws of war, thus offending one of the most elementary principles of justice.
Hicks’s lawyers, most military lawyers, experts in international law and human rights, and peak bodies such as the Law Council of Australia, had said this all along. Astoundingly, the Abbott government reacted to the exoneration of Hicks by spitting that it would not apologise for actions it took to make Australia safe, and that the US decision concerned legal technicalities, not what Hicks had supposedly done wrong. The nine-month sentence that Hicks served in an Adelaide jail on an invalid conviction is apparently irrelevant – despite illegal imprisonment fundamentally infringing the rule of law, and normally attracting whopping compensation payouts from governments that have violated liberty and abused their power.
Michael Mori, a career US Marines lawyer and lifelong Republican voter, rose to prominence in spruiking the injustice of Hicks’s case to the world between 2003 and 2007, when he represented Hicks in the US military commissions. His book, provocatively entitled In the Company of Cowards, chronicles how a regular military lawyer, schooled in the rule of law and the due process traditions of the US military, finds himself shocked and angry at Hicks’s treatment, and resolves to do his utmost to defend him.
‘Astoundingly, the Abbott government reacted to the exoneration of Hicks by spitting that it would not apologise’
Hicks told his own tale in his book Guantanamo: My Story in 2010, and journalist Leigh Sales got in first – in the heat of the controversy and without the benefit of later revelations – with her book Detainee 002: The Case of David Hicks (2007). Some facts may always remain slippery in a case where no competent court has ever delivered a judgment. Mori was closer than anyone to Hicks during his five years at Guantánamo. The strength of his book is that it intimately recounts the defence perspective, at close quarters and in fine, human detail.
The narrative is told in the folksy, accessible style that endeared Mori to many Australians when he was waging a public relations war for Hicks in the media under the Howard government. Mori was persuasive. Public sentiment turned in Hicks’s favour as his incarceration dragged on and the extent of the system’s unfairness became incontrovertible. Howard, towards the end of his government, with an election nearing, buckled, and agitated more robustly for a speedy resolution to Hicks’s predicament.
Mori capably recounts the sorry legal story of the military commissions: their irregular creation and multiple iterations; their lack of independence from the US executive government and military command, and the constant political meddling; their manifest procedural unfairness; and the retrospective, made-up charges. While the contours will be familiar to lawyers who followed the case, there is still much valuable fleshing out of detail, albeit without the more sophisticated and nuanced scholarly debates about the legal minutiae. For other readers, the legalities are well explained, particularly how seemingly technical issues serve to secure common sense, universal principles of fairness and justice.
‘Mori was closer than anyone to Hicks during his five years at Guantánamo’
The book also conveys a lively sense of the practicalities of defending such an extraordinary case. Mori knew little about international law and had to rapidly get up to speed, aided by experts. He coordinates with an endlessly shifting team of military and civilian lawyers, across multiple military and civilian court proceedings. He encounters US military personnel who think that terrorists ‘should just be shot’ and who doubt his purpose. He interviews witnesses in the boondocks of Afghanistan, and investigates if fellow US personnel abused Hicks. He struggles to improve Hicks’s living conditions, bettering the terrible food, but is prevented from giving him a copy of the legal thriller To Kill a Mockingbird. He travels endlessly to and from Guantánamo on a tiny propeller plane sans toilet. He recounts his frequent dealings with Australian authorities, from often helpful legal and consular staff, to the political leaders who ‘abandoned’ Hicks for ‘political convenience’. He débuts in the media, and suffers recriminations from his superiors. He fights in the court room and in the court of public opinion. He tries to keep hope alive for Hicks and his family.
The focus of the book is purposely on the military commissions, which Mori was closest to, up to Hicks’s conviction and repatriation in late 2007. Other chapters in the byzantine legal plot, ripe for further telling, include the British case to secure British citizenship for Hicks; an Australian court case challenging Hicks’s detention and Australia’s failure to protect him; the anti-terrorism control order imposed on Hicks after his release from prison; the aborted attempt to confiscate the literary proceeds of Hicks’s own book; and a pending human rights complaint to the United Nations about Australia’s role in the case.
Mori also engages with the moral quandary presented by Hicks, presenting him more as a misguided adventurer who naïvely believed he was fighting for the underdogs in Kosovo, Kashmir in Afghanistan – just as Australians had volunteered in the Spanish Civil War. This obviously paints Hicks in his most flattering light. Other less favourable facts may be contested, but he certainly wrote letters celebrating jihadi death, railing against Jews, and admiring Osama bin Laden; and he acquired military training in this ideological context. He didn’t know about 9/11, but he (briefly) participated in armed forces against whom the United States and Australia were fighting in collective self-defence after 9/11.
John Howard has long been concerned with countering what he regards as the domination of Australian historical writing by the left. His project was initiated before he gained the prime ministership, most notably in his Menzies Lecture of 1996, in which he claimed that most of the distinctiveness and achievements of Australian politics were grounded in the liberal tradition. It continued during the ‘history wars’ from 1996 to 2007 – a subsidiary element in his largely successful attempt to reshape the contemporary understanding of liberal individualism. His massive new book on Menzies and his times is the summa of this enterprise.
The People Smuggler: The True Story of Ali al Jenabi, the ‘Oskar Schindler of Asia’
by Robin de Crespigny
Viking, $29.95 pb, 360 pp, 9780670076550
Do you remember them on the television news? Stumbling down gangplanks onto our shores, with flickering cubes of light instead of heads. Wearing strange clothes and eating stranger food. They harboured terror and disease. They were said to sacrifice their children. How did it come to this?
John Howard and Tony Blair both came to the prime ministership in landslides, Howard in 1996, Blair in 1997. They were on opposite sides of the traditional political divide, Howard leading a Liberal Party opposed to Australian Labor and Blair leading the British Labour Party. But both rebadged their parties, Blair as New Labour and Howard as Conservative. New Labour and Conservative meet in their concern for society’s health, though the two leaders don’t acknowledge this. They did become open allies as supporters of the war in Iraq. According to Howard, the two have maintained their friendship now that they are out of office. Within a few months of each other, they have published their memoirs, both big books over seven hundred pages long.
Blair’s book is titled A Journey because its theme is how he changed intellectually and personally in the top job. His great policy achievement before he took office was to persuade the Labour Party to drop Clause IV in its platform, which provided for the nationalising of industry, and replace it with this aim:
To create for each of us the means to realise our true potential and for all of us a community in which power, wealth and opportunity are in the hands of the many and not the few, where the rights we enjoy reflect the duties we owe, and where we live together, freely, in a spirit of solidarity, tolerance and respect.
It has been criticised as vacuous. Blair complained that some of his ministers did not understand it or know how to apply it, which was why so much policy had to be run from his office. But better for social democracy to reach for a new explicit purpose when its old one has been abandoned. Though Labor governments in Australia have privatised the state instrumentalities that early Labor governments created, the socialisation of production, distribution, and exchange remains in Labor’s platform, albeit hidden away.
Blair’s interest in social solidarity meant he took seriously the widespread fears of crime and of illegal immigrants (especially in working-class communities), which were not to be treated as bogeys conjured up by Tories for electoral purposes. The famous New Labour slogan was ‘Tough on crime and tough on the causes of crime’. After years in office, Blair changed his mind on this; he now thinks social inequalities and disadvantage in the broad are not the sole causes of crime; there is a small sub-group which causes most of the trouble. Policy must be directed to getting a grip on them – which both major parties in Australia have begun to do with the quarantining of welfare.
Howard was the first Australian prime minister to call himself a conservative. He does not notice this novelty and, though he insists politics was for him always the battle of ideas, there is very little discussion of ideas in the book. His social policies are treated seriatim in one grab-all chapter, without any general analysis of why conservatism is now the proper prescription. His well-known claim that ‘the times would suit him’ – which is an answer of sorts – is not mentioned. His book supports the view that he was an instinctive, not a considered, conservative, and indeed instinct is the term he frequently reaches for. He does not record having read Edmund Burke; he cites him in support of his ‘instinct’ to preserve the monarchy without seemingly being aware of the Burkean obligation on conservatives to know when change is needed and to manage it properly. He records that the president of the Liberal Party urged him to lead Australia to a republic, which was Australia’s destiny, and so gain
a place in history for himself and his party. His reply was that he could not possibly do that because he did not believe in a republic. That reveals his strength as a politician and his shortcomings as a statesman.
There is more detail and more passion in his accounts of his economic reforms: the waterfront, the GST, industrial relations, selling Telstra. It is frequently said that the two major parties have agreed on economic reform since the 1980s. But as Howard justly complains, he supported Labor’s reforms from opposition; Labor in opposition opposed his. So he had a real battle, and showed a boldness and determination sadly lacking in his successors. Now that he is gone, the quality of his leadership begins to be more widely acknowledged. So long as economic rationalism continues to deliver, Howard will have a place in the pantheon.
He was not among the first of the economic rationalists in the Liberal Party. He speaks of an epiphany bringing him to this position, but its intellectual sources are not revealed, again a strange omission in a self-proclaimed ideas man. His biographers suggest that one attraction of economic rationalism for Howard was that it allowed him to differentiate himself from, first Malcolm Fraser, and then Andrew Peacock. So he is a user of ideas rather than a thinker.
Blair did not want to duplicate the many accounts already written of his prime ministership; his aim was to record his personal experience and reflections. Howard, by contrast, is a great duplicator. If you followed his career in the quality press, still more if you have read the biography John Winston Howard: The Definitive Biography (2007), by Wayne Errington and Peter van Onselen (for which Howard was a source), there is very little novelty in Lazarus Rising. On some matters, the biography tells you more about Howard than he does himself (for instance, that he came to regret the Liberals’ blocking supply in 1975). Much of Howard’s book is a political chronicle of the ups and downs of governments and oppositions as they ‘slump’ or ‘get a lift’ or ‘gain momentum’, as measured by the unrelenting polls and by-election swings. Howard was a master at this game, what he refers to as political scrapping and ‘the darker political arts’, but not all his readers will be engrossed. I found most revealing the chapter on his dealings with the Chinese, where he is optimistic but cautious; he thinks Fraser and Bob Hawke were too enthralled by China. In the final chapter on industrial relations, when the government was on the ropes over WorkChoices, there is more detail on cabinet deliberations and divisions than previously.
Blair’s book contains much more reflection on the processes of government: the role of the media, cabinet ministers versus the advisers in the prime minister’s office, the inertia of bureaucracy, the need ‘to conceal the full truth, to bend it and even distort it’. Don’t be too disturbed by this, he warns; we all do it in our business and personal lives. The passage of most significance is Blair’s distillation into ten points of the approach he used to bring peace to Northern Ireland, which he offers as a guide for the settlement of all intractable conflicts.
Blair and Howard defend at length their decision to invade Iraq, the cause that brought them together. Both remind us that everyone agreed that Iraq possessed weapons of mass destruction; the issue was whether the time had come to enforce the demands of the United Nations that Saddam had defied (Blair cites a list of these). Howard insists that Australia can’t be bound by the vagaries of France and Russia in the Security Council in enforcing UN resolutions. Blair argues that, though he would have preferred a final resolution endorsing force, the existing ones were enough. Here and elsewhere he is the more persuasive because he concedes that his critics had a case; what he challenges them to do is ponder the consequences of inaction, the consideration that presses so heavily on those who actually have to make difficult decisions.
Howard, oddly for a conservative, agrees with Paul Keating that if you change the government you change the country. But only superficially, surely. On the next page, Howard gives his best account of the conservative mentality: ‘Successive generations have given Australia a good enough vision and a sense of identity … good leadership interprets and applies the received values of a nation.’ Blair, having thought deeply about the gap between what a government intends and what it achieves, concludes that a new prime minister is not a new owner of the governmental apparatus, but a new tenant.
Those who think that the party label of the government in office determines the political agenda should note how similar are the issues preoccupying the two prime ministers: welfare dependency, inadequate state schools, the fear of crime, asylum seekers, the cost of health, clumsy and unresponsive bureaucracies. Blair notes the commonality across the political divide, where parties now disagree only about means.
Both leaders had troubled relations with their presumed successors. Nothing they say – and they say a lot – can hide the fact that, as long-serving, successful prime ministers, they failed in their duty to contrive an orderly transition in the leadership of their party. Blair acknowledges the danger of hubris without fully applying the term to himself. Howard, though he doubted Costello’s personal qualities, knew that he would continue his policies. Blair told Gordon Brown that he would go only when Brown made it clear that he would follow the principles of New Labour. The effect of this demand was to drive Brown into the hands of all those opposed to New Labour in order to be rid of its architect.
Blair immediately delivers on his promise to make his account personal by recording how terrified he was upon winning office. On election night, the more euphoric his supporters became, the more he knew he was bound to disappoint them. Howard does not take us far into the private man. When he records locating the spot where his father and grandfather met when they were soldiers serving in France, he relies on the words of a journalist, who observed him at a distance, to convey what he felt. The lowpoint in his life was when the party refused to reinstate him as leader after the failure of John Hewson. It looked as if his ambition to be prime minister was never to be realised. Howard offers only two words on his feelings, ‘completely deflated’. But what exactly did that entail? It could mean breaking down, hiding away, or thinking of giving up. Howard is not telling. Most likely it meant much less and the life was as undisturbed as the prose. The book tells us no more about the person than we already know: that he is preternaturally resilient, reserved, conscientious, driven though calm and measured, and, as far as the darker arts allow, decent and considerate.
As to the origins of the drive, the book gives only this clue: that this slight boy, the fourth son in a respectable Methodist home, was enthralled by boxing.
John Howard and Tony Blair both came to the prime ministership in landslides, Howard in 1996, Blair in 1997. They were on opposite sides of the traditional political divide, Howard leading a Liberal Party opposed to Australian Labor and Blair leading the British Labour Party ...