The Australian Human Rights Commission’s role “is to stand up for the most vulnerable and disadvantaged groups in our community: the homeless, the mentally ill, indigenous people, people with disabilities, children in detention”. This role is particularly important wherever the courts are unable to provide protection from abuses of power affecting the most vulnerable in our community. AHRC president Gillian Triggs has fulfilled that role admirably — and for that she has been subject to attack after attack from our nation’s politicians.

By January 2015, it was becoming obvious that certain senior members of the Coalition government were determined to cast the work of the commission in as bad a light as possible in retaliation for the AHRC revealing ongoing abuse of children at Australia’s offshore detention centres. An opportunity to do so arose in relation to the case of John Basikbasik. In late November 2014, the commission president found that the continued and indefinite detention since 2007 of Basikbasik, a recognised refugee, in the Villawood Immigration Detention Centre was neither necessary nor proportionate. It was therefore arbitrary detention, constituting a breach of Australia’s obligations under the 1966 International Covenant on Civil and Political Rights. Given that the arbitrary (and therefore illegal) detention had continued for over seven years (and still continues), Triggs also recommended that he be awarded compensation in the amount of $350,000 — an amount based upon similar amounts awarded in previous cases of illegal detention.

The reason for government outrage at this recommendation was that, in 2000, Basikbasik had been convicted for the manslaughter of his de facto spouse, a conviction for which he served the full term of a seven-year sentence. Basikbasik was released from prison in 2007. In such cases, the minister for immigration has a range of options available, including the power to specify alternative detention arrangements, such as community detention with conditions and restrictions attached to mitigate any perceived risks. The minister, however, has declined to take any such option.

Prime Minister Tony Abbott labelled the Basikbasik case as a “bizarre ruling” and an “extremely questionable judgement”. Sections of the media screamed outrage at the idea that a “wife killer” should “be released” — and “with compensation” to boot! Of course, this was never what the AHRC president had recommended at all. A less restrictive form of detention is not the same as “release”.

By this stage it was known that the AHRC had completed its report into children in detention, and that the report was not going to cast Australia’s immigration detention practices in a good light when it was made public. In order to add a countervailing voice, a group of 25 legal academics signed an open letter expressing support for Triggs and their confidence in the work of the commission.

But neither the letter nor other expressions of support for the AHRC coming from members of the legal profession was sufficient to prevent the howls of outrage from the government when the AHRC’s Forgotten Children report was made public. The Prime Minister quickly labelled the report a “blatantly partisan political exercise” and a “transparent stitch-up” — though neither he nor anyone else has pointed to any errors in the report, which includes detailed, albeit disturbing, analysis of facts and figures taken from data held by the Immigration Department. As Professor Ben Saul has noted, the government’s response is not a reasonable and civilised disagreement about law and fact, it is an indefensible political attack on the independence and integrity of a commission doing its job — namely, calling out governments for breaching human rights law standards.

As a second letter circulated for signatures by human rights scholars, it soon became obvious that Gillian Triggs was widely respected for her intelligence and integrity, particularly among the many of us who have been her students and/or work colleagues over the years. In less than two days, the letter had been signed by 50 senior legal academics along with both Brian Burdekin, the first AHRC president, and noted human rights advocate Julian Burnside QC. Other public figures and legal bodies, including former prime minister Malcolm Fraser, the Australian Bar Association and the Law Council of Australia, also spoke out publicly in support of the AHRC, its president and its work. Finally, even the Senate decided to censure the Attorney-General, George Brandis, for impugning, and even possibly undermining, the independence of the commission and its president.

A second special Senate estimates hearing was held on March 27, 2015, the very day of Fraser’s funeral. Brandis attended the funeral and so was absent from the hearing. Again, Triggs was asked to defend her recommendations in the Basikbasik case. She did so succinctly, while also making the point that few, in any, government members had actually read her reports:

“I think most fair-minded Australians would say that to hold a man for eight years after he’s served his full prison sentence is something that does require at least the regular consideration of his case and … of whether … alternative forms or detention might appropriately be used …

“Normally it would be for members of parliament to read my reports, to question them if they chose to, and if appropriate, through the attorney, to appeal against them.  That has not been done, and unfortunately, the choice has been made to do so in the pages of a particular newspaper, where the facts and legal reasoning were grossly misstated.”

* Dr Alice de Jonge is a senior lecturer in the Department of Business Law & Taxation at Monash University and played a major role in drafting and distributing the two letters from legal scholars mentioned in this article

Peter Fray

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