Andrea Durbach - Dinner Speech - Sydney

My thanks to Hugh and Emily and the HRLC for the invitation – and to share in this important milestone – your official Sydney landing.

It is a great joy to be here with you all tonight to honour the work of the HRLC and its allies. There is also a lovely sense of synergy given my work many years ago (when I was at PIAC) with my friend and colleague, the inaugural director of the HRLC, Phil Lynch. Indeed, the early beginnings of HRLC were spawned by PILCH first established by my alma mater, PIAC. And it’s been a real thrill to watch the HRLC grow from a positive disrupter (which it remains) into a formidable contributor and I’m delighted to continue our historical connection, now with the added advantage of physical proximity.

What I’m not delighted about is the twitter that was unleashed by your description of me in your dinner invitation as a human rights ‘luminary’. Despite the arrows of glee this allowed family and close (and I imagine, not so close) friends –it also creates enormous room for disappointment and so without delay, I am about to pull you all down into the dark, rather uninviting, gritty and often invisible realm of the degradation of rights and the relentless, urgent fight for their survival at a time when the notion and aim of opposition is being thwarted by the spread of ignorance and the display of rank shamelessness.

As some of you may know, I grew up and practised law in a country where laws

were used to create an unimaginable cruelty against the majority of South

Africans based on the colour of their skin. I worked as a lawyer with victims of apartheid who were subject to acts of deep inhumanity and terror, acts which

were motivated by racism and a desire to punish and silence those who dared to oppose an illegal, brutal regime. 

It was against this backdrop that I came to the practice of law with a certain degree of reticence and resistance.  As a student, I had worried that working within the apartheid system as a lawyer would be tantamount to my justification of it but the forces of opposition - the bold, strategic, persistent and principled struggle against the stranglehold of minority political and economic power by activist communities harmed by its impact, persuaded me to become a conscientious participant in the South African legal system, using the law to carve cracks in the fortress of apartheid.

As a lawyer representing clients charged under the laws and regulations that shored up apartheid rule, I received instruction in the extent to which this pernicious system contaminated every facet of life. We achieved some victories in the courts and the application of harsh apartheid laws and state conduct may have been restrained as a result. Often however, legal remedies remained symbolic, having little chance of enforcement. The overriding scale of hardship and harm and the enormity of damaged lives endured, barely dented. These were the times when fatigue set in and undid any sense of hope. But as lawyers working with fragile communities, damaged by law’s impact, we learnt that in executing our task, we had to ride the waves of political and legal opportunity, judiciously using the courts as sites of struggle.

And in working with community, I learnt about the importance of time and that nothing of enduring value happens quickly: listening doesn’t happen, observation and reflection cannot happen, clarity doesn’t come; seeing the other - imagining one’s self in their shoes – doesn’t happen; and neither can the nurturing of critical alliances or the slow revelation of trust. And if none of these things can happen with time, transformation – whether personal or political - is blocked or, if executed, is ill-considered and ultimately unstable.

But the risk that comes with time is that divisions are fuelled and resistance retreats, and the task of opposition frequently requires that we stand back and take stock to allow a change of gear, a remodelling of its purpose and its form ­ to anticipate, to mobilise, and to innovate mechanisms that disrupt those buoyed by power and those withered by cynicism.

Three years ago, I was invited to work with a gutsy young filmmaker who had begun to document and expose the unlawful removal, brutality and betrayal of a Papua New Guinean community who lived on the shores of Port Moresby. The Paga Hill community of close to 3000 people had been living on the land with permission from its customary landowners for over four generations. In May 2012, the PNG Government issued an order to evict the community, one of the city’s oldest settlements, to clear the way for a multi-million dollar lucrative development – a five-star marina, hotel and elite residential complex on a prime site, a grubby collaboration between a development company, companies with Australian ties (many of which had been the subject of corruption and mismanagement inquiries) and the PNG Government. The Paga Hill community, led by resident and anthropologist, Joe Moses, commenced legal proceedings to appeal the eviction order and to stay further demolition on humanitarian grounds. Against the backdrop of an impending court hearing, a few days later, over 100 machete wielding policeman, many with assault rifles, opened fire on the community and drove bull-dozers through their homes, breaking and burying their possessions, violently displacing the people. Dame Carol Kidu, the then Leader of the Opposition in the PNG Government, arrived to support the community’s right to remain and confronted the police, who forcibly removed her from the site. The court granted the stay and the demolition was halted.

The struggle by a small community led by their defender, Joe Moses, against state and corporate venality, continued over almost 3 years:

  • Joe, with the support of Dame Carol, assistance from academic, Kristian Lasslett of the International State Crime Initiative in London and a small team of local pro bono lawyers, returned to court in a bid to remain on the land on which the settlement was built;
  • on appeal, the PNG Supreme Court found that the development company had no lawful access to the Paga Hill waterfront settlement given questions about its exact boundaries and consequently, the evictions and demolitions were declared unlawful;
  • three weeks after the judgment, police executed further demolitions and evictions in breach of the Court’s order;
  •  in the interim, Dame Carol Kidu - recently retired from politics, once a forceful advocate for the rights of the Paga Hill residents, had been engaged by the development company to negotiate the forced relocation of the evicted community;
  • 3 months later, police arrived at Paga Hill to finish their work ‘burn[ing] the school, the church, bash[ing] women and children at gunpoint and flatten[ing] the community until they [were] forced to leave;’
  • many of the former Paga Hill residents were left homeless in downtown Port Moresby; others took paltry state inducements to move to an arid piece of land, living under rotting canvas, with one tap and minimal sanitation.

The devastation of the Paga Hill community and Joe’s legal battle on their behalf ­ amidst police surveillance, intimidation and death threats which eventually forced him into hiding, has been boldly captured on film by the intrepid, Hollie Fifer who traveled to PNG under cover and at high risk over three years to document their fight. This remarkable documentary, called The Opposition, which sought to give visibility to a community displaced and fragmented by the dictates of greed and the delusions of progress, was invited to screen at a prestigious international documentary festival in May 2016.  Clearly troubled by the public revelation of her turn against her people towards the pocket of the developer, exquisitely mapped and unmasked by Hollie’s film, Dame Carol, propped up by the development company (who indemnified her legal costs), sought injunction proceedings against Hollie and the film’s production company, Media Stockade to restrain the screening of The Opposition. The NSW Supreme Court ordered a temporary injunction on footage in the film relating to Dame Carol. The redacted version of the film - with black screens and white text drawing precise attention to the prohibited footage – was screened at the festival, garnering international attention and acclaim. And some weeks later, the NSW Supreme Court lifted the injunction and found in favour of the filmmakers, who won the right to screen the original version and to their legal costs and subsequently, damages.

But this victory is bitter-sweet. Joe Moses, who narrowly escaped arrest as he flew out of Port Moresby last November to travel to festivals and conferences with the film, cannot return to his country: he fears being shot on the street or held in custody and bashed. And his family remain in Port Moresby, relentlessly monitored by unmarked police vehicles and plain-clothed policemen. The agents of the state who tracked Joe, now follow his children to school and threaten harm to his wife. But the design of the human rights strategy to accompany the release of The Opposition combined with the international screening of the decimated version of the film, has spawned international alliances that have taken the struggle of the Paga Hill community and Joe and his family onto the global stage, revealing the murky workings of a corrupt state and its base executioners.

And this is where the Human Rights Law Centre comes in. Last year, I contacted Phil Lynch, founding director of the Human Rights Law Centre, now Director of the International Service for Human Rights in Geneva, who agreed to host a screening of the film in Geneva for UN diplomats. As a consequence, Joe addressed a meeting of the UN Human Rights Council and Hollie briefed the UN Special Rapporteur on adequate housing and months later, Joe, stranded in Panama following his attendance at an Anti-Corruption Conference, had a fortuitous meeting with UN Special Rapporteur on the situation of human rights defenders, Michel Forst, whom Hollie had briefed some months earlier in Melbourne, where he’d been a guest of the HRLC. Joe, now a UN recognised human rights defender with protection under the European Human Rights Defenders program, was granted a six month stay in the United Kingdom where he is currently studying international human rights law at Nottingham University, and collating evidence in support of the Paga Hill community’s compensation claim against the PNG Government.

[There were two English-speaking countries that would accept Joe without a visa – the UK and Canada. In the words of Hollie Fifer: ‘Joe chose the UK because he loves the Queen. He loves the Commonwealth. And as an anthropologist he’s curious about the country that colonised his own.’]

In January this year, the PNG Government gave the green light to the Paga Hill Development Company to begin construction on the Paga Hill Estate in anticipation of the complex accommodating delegates to APEC 2018. The Australian Government has allocated a fifth of its aid allocation to PNG to fund the event and Aid/Watch have called on the Government to halt support for APEC 2018 until the Paga Hill community has been properly compensated. On the legal front, the HRLC and Keren Adams, who leads their work on business and human rights, is investigating the complicity (and possible liability) of Australian companies in the unlawful eviction of the Page Hill community.

And Joe is on the other side of the world in a cold climate, separated from his own family, unable to sleep, in fear for their lives.

But tonight – I am delighted to say, he is here with us, as our guest of honour, our luminary, with The Opposition producer, Rebecca Barry. 

And so to conclude and draw in the threads.

Joe, in many ways, this is my tribute to you and to Hollie, and to the Human Rights Law Centre warriors - and those who continue to inhabit, in the words of Seamus Heaney, the ‘republic of conscience,’ the uneasy and exacting state of opposition. 

Despite the seeming inevitability of apartheid rule, in 1994, three centuries of colonialism and white supremacy, reinforced by repressive governments and rapacious industrialists, were overturned by the combined and determined forces of enduring popular resistance, leadership by key individuals, multifaceted and strategic innovation, and engagement with international points of pressure. That this very new, fragile land emerged from the wreckage of apartheid to undertake an unimaginable transition to democracy in my lifetime against massive odds is testament to an extraordinary triumph of opposition.  That it is struggling to find its way just over twenty short years in from a turning point in South African and world history, is an inevitable response to layers of deeply entrenched and destructive practices, to the necessary risks of political compromise and to a nation revising its expectations as the enormity of change hits home.  

And so it is with Joe Moses and the Paga Hill community and the precarious cycle of resistance, the heroic moves forward and the inevitable falling back.

Hollie Fifer speaks to that cycle:

What kept pulling me back, ‘was the sharp resistance of it all. The community’s refusal to get around the table and negotiate with the company knowing their voices would be diminished.

            … I didn’t realise that you could use litigation in a positive way to gather more evidence, to put on the public record. And I didn’t realise the importance of the media’s role – especially the independent media - to win in the arena of public opinion. Then, to build and draw on the strength of international solidarity. And the absolute need for supporters  - for if we didn’t get help from our partners and our funders who supported the case, well we would have been bankrupt before getting to court.

And ultimately, the film highlights the value of the visual, not just as a disrupter, but as a means for taking us – wrapped up in our own burdens and sitting on the edges of creeping privilege – straight in to the blows of real worlds and their wounds. And with the demolition of Paga Hill, most of the community’s records and documents were destroyed and Hollie’s camera, employed as the pen, has meant the documentary has become the community’s strongest evidence base for their damages claim for the loss of their homes.

Finally, The Opposition reveals the critical role of human rights defenders in our society. As Hollie Fifer so aptly states:  

they are the linchpin, the nodal point for what comes from the ground, from the people. If you help the human rights defender, you help all the people that they help.

And that is why we are here tonight ­ to pay attention to and acknowledge the tenuous presence of opposition and its constant battle to stand firm against the forces of denigration, manipulation, and co-option. Whether it is the drive of a nation or the resolve of a small community to take on a hostile state, both require the ongoing reinforcement of opposition via intellectual, moral and financial support. It is the work and innovation of organisations like the HRLC, PIAC, legal aid commissions, the Australian Human Rights Commission, NGOs, and their affiliates in academe and in the professions, who act as the essential conduit from sites of opposition to law courts, to the media, to policy-makers. But most importantly, they pull us in from the sidelines and remind us that the struggle of Indigenous Australians, of women, of those who identify as LGBTI, of refugees, and communities displaced by our messing with the climate is not (in the words of Clive Hamilton) ‘a spectacle that takes place outside the bubble of our existence.’ Rather, it is a struggle central to us all, intrinsic to our legacy. These are the curators of our democracy who question, who challenge, who dare to name, who hold up mirrors to ourselves, and hold the shameless to account. They make a difference to ordinary lives and they make us critically aware of the penetrating words of the Polish Nobel Laureate, Wisława Szymborska:

                        [W]hatever I do will become forever what I’ve done.