If, like most Australians, you’ve never read the Australian Human Rights Commission Act 1986, you may be surprised by how wide it is. The act establishes 15 separate functions and roles for the commission to carry out (plus a 16th “anything incidental” function), ranging from handling discrimination complaints, to conducting inquiries into human rights breaches, to vetting legislation, as well as an advocacy role.
The Australian Human Rights Commission has a function to “promote an understanding and acceptance, and the public discussion, of human rights in Australia”, “undertake research and educational programs”, and “on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights” — including in relation to Australia’s adherence to international agreements on human rights.
As Crikey argued in 2013, the AHRC’s advocacy role is the one that is most problematic, nebulous and unrestricted. It requires the commission to be selective about what it advocates for, because it can’t effectively advocate for everything in the broad remit of human rights at the same time. But neither the Coalition nor Labor has proposed to amend the AHRC’s functions. So, in the absence of other evidence, notionally the two major parties support this wide-ranging advocacy role — including the role of reporting on what actions the Commonwealth should be taking in relation to human rights.
And it’s the legislated duty of the commission to ensure that those functions are performed “(a) with regard for (i) the indivisibility and universality of human rights; and (ii) the principle that every person is free and equal in dignity and rights; and (b) efficiently and with the greatest possible benefit to the people of Australia.” As the senior member of the commission and the accountable authority of the commission, AHRC president Gillian Triggs has a statutory responsibility to carry out that duty.
The government’s ceaseless attacks on Triggs are, therefore, literally for doing her job, a job that she is required by law to do, a job that the government has elected to leave defined in its current, very broad form.
As several commentators have noted, the government’s latest attack on Triggs is factually wrong. Attorney-General George Brandis and Immigration Minister Peter Dutton tripped up last week in accusing Triggs of using a speech to link the government’s efforts to turn back asylum seeker boats with Indonesia’s decision to execute Andrew Chan and Myuran Sukumaran. Triggs had done no such thing. Instead, she had linked the government’s campaign to turn back boats — which led to repeated infringements of Indonesian sovereignty — with Indonesia’s refusal to engage with Australia on efforts to abolish the death penalty. Even a quick Google of Triggs’ advocacy in relation to the death penalty would show she has been calling for a regional moratorium on capital punishment and even suggested linking aid to the moratorium.
Brandis and Dutton are two of the most incompetent ministers in a dreadful government. Brandis had previously used his department head Chris Moraitis to approach Triggs with a job offer to convince her to resign. Brandis’ most recent debacle was to accuse Labor of inappropriately questioning his handling of a letter from Man Haron Monis — just weeks before the Lindt Cafe Sydney siege — before having to admit he had falsely claimed to have passed the letter to the government’s inquiry into the siege. Dutton was dumped from the Health portfolio for (to use the words of Tony Abbott himself) “mishandling” the GP co-payment. On the weekend, Dutton pretended high dudgeon over Triggs’ remarks and used a grovelling interview with far-right media personality Andrew Bolt to suggest she resign.
However, last week, Triggs did take up an issue that places her in direct opposition to not merely the Coalition and Labor, using another speech to criticise the growth in executive power at the expense of parliamentary and judicial oversight.
Since the Keating years, there has been a steady expansion of executive power in the Immigration portfolio and a reduction in opportunities for judicial oversight. Much of that shift was appropriate: the refugee application system was ruthlessly gamed by illegal immigrants in the early 1990s, with hundreds of appeals clogging up the Federal Court. In response, successive governments have significantly curbed the capacity of courts to exercise any power by way of a merits review over decisions by the Immigration minister. This government has gone further and curbed parliamentary oversight of Immigration matters, pretending that asylum seeker boats were a military threat and declaring anything relating to efforts to turn them back must be kept secret even from traditional forums for bureaucratic accountability, like estimates committees.
Now the Immigration department is at the centre of another effort to dramatically expand the powers of the executive, with the government’s proposal to strip the citizenship of both dual nationals and anyone who could potentially claim dual citizenship purely on the Minister for Immigration’s say-so, without any merits review by a court. As the reaction of former immigration minister Amanda Vanstone suggests, such unchecked executive power is a direct affront to traditional liberalism.
Under the proposal, Dutton would be given the power to declare that Triggs, who was born in the UK, was negligently aiding terrorism through her advocacy of human rights (or perhaps he might read a misrepresentative article about her statements in The Australian and decide she was actively supporting terrorism) and strip her of her citizenship. There’d be no judicial review of such a decision, however ill-judged.
Don’t think it will happen? Probably not to a high-profile figure. But Immigration is the portfolio that sent Vivian Solon to the Philippines and locked up Cornelia Rau without any legal right, and which presided over the sexual abuse of children on Nauru but insisted it knew nothing about it until late last year. A negligent department led by an incompetent minister demands judicial and parliamentary checks. That the Liberal Party needs reminding of this fact demonstrates just how illiberal it has now become.


62 thoughts on “Gillian Triggs is obeying the law while Dutton seeks ways to thwart it”
Neutral
June 9, 2015 at 4:32 pmDon’t like the message? Shoot the messenger.
Standard operating procedure for those who wish to remain unaccountable in the pursuit of paranoid ideology.
Djbekka
June 9, 2015 at 4:59 pmI am somewhat puzzled by the willingness of some commentators to jump from ‘I disagree with Dr Triggs’ to she should be sacked/resign. Surely what we need to hear/read is an argument for why it is not an abuse of rights for a government minister to withdraw a person’s citizenship because the minister ‘thinks’ the person is a threat to national security in some way – not enough evidence to go to court, can’t say what the grounds are since that would ‘reveal sources’, no possibility that the accused person can see the evidence or appeal the verdict. I don’t feel any safer when I think about the suspicion such a policy will provoke.
If some reader has an argument rather than an assertion to say why human rights are not threatened by the exchange of the rule of law for the opinion of the minister, please make that argument. Sure times are changing, but we are not living in a war zone.
The current government could have done themselves a favour to have responded to the children in immigration custody report with a comment on a Friday afternoon, that many changes had happened since the research was undertaken and many fewer children were detained. More staff could have been assigned to work through the remaining cases (two people for 2 weeks counts for more people). Nothing to see here folks. Instead they had a collective hissy fit and demonstrated there might be something to see that they want to hide. Was the HRC getting close? Do they really hate formal criticism that much? Are we entering a cycle of perpetual campaigning? What else has been going on that no one has covered in print?
Dogs breakfast
June 9, 2015 at 5:39 pm@ David Hand, I would have thought that even you could not excuse this government’s reckless disregard for basic ideas about rule of law.
And if a Human Rights Commissioner isn’t going to take the human rights perspective on issues, as per her job description, than who is?
This government reacts so strongly to her observations because they are so clearly in the wrong. It is they who jumped all over her, not the green-left tree huggers who have rushed to her defense. You have conflated a reasonable defense of the HR Commissioner with a hysterical beatdown from the LNP government.
On the other hand, why would I expect any different.
Liamj
June 9, 2015 at 6:20 pm@ zut alors – i think the Illiberal party would like to abolish the Gillian Trigg sort of HRC, and keep the tory toy boy Tim Wilson sort that e.g. pushes for commodifying indigenous land rights into saleable parcels. If a principle can be perverted to make private profit, they’re for it.
AR
June 9, 2015 at 7:43 pmOneHand has really had a rocket up him to get out on that keyboard and troll, troll & troll again, lie, obfuscate, dissemble and mislead. Our very own Cato du jour, Decency est delenda.
Norman Hanscombe
June 9, 2015 at 7:56 pmThe Human Rights about which posters are commenting are derived from whatever a relevant Constitution says they are. We may believe in good faith that they have a religious or existential source, but although that often makes us feel happy / noble / whatever, it doesn’t mystically alter the fact that it was an arbitrary basis on which those Constitutional Rights were established.
The material above on this thread would make an excellent tutorial exercise for Philosophy courses.
zut alors
June 9, 2015 at 8:00 pm@ Liamj…’Illiberal party’. Perfect, from this day they should not be known otherwise.
drsmithy
June 9, 2015 at 8:04 pmI am somewhat puzzled by the willingness of some commentators to jump from ‘I disagree with Dr Triggs’ to she should be sacked/resign.
Hang around, read their posts for a while and you’ll be less puzzled.
Peter Kemp
June 9, 2015 at 8:25 pmThe destruction of social capital as represented by the HRC in fairness, rule of law, justice etc has carried on from the Howard years, by jumped up despicable individuals. Tony Abbott is just another iteration of LNP political bastardry. There was a time that LNP polititians were well regarded as people of integrity, Jim Killen, Gorton the orange farmer, even Fraser had compassion eg Vietnamese refugees.
Those times are over, the rot set in with Howard, egged on by Thatcher possibly ‘there’s no such thing as society’. The last small L liberal left standing, probably for all time, is Malcolm Turnbull, an endangered species in the LNP
There is nothing these people will not sacrifice in our liberties for short term political gain, human rights, the rights of children, rights of refugees – all out the window, egged on by that Bill O’Reilly lookalike, that utterly detestable Andrew Bolt and his ilk in the Murdoch bordello of false news.
What gets me is that the ignorati who think the LNP is correct in attacking Triggs and the HRC, are fundamentally too stupid to understand how the rule of law protects them, against their own ridiculous folly – so far.
Occasionally, just a few of those ignorati, appear in police cells on some trumped up/stitchup police charges, bashed by police, lied about by complainants, whatever. Well I look forward to seeing them as a duty solicitor because, all of a sudden for them, the rule of law takes on a whole new meaning.
HappyCake Oven
June 9, 2015 at 9:10 pmWhat a controversial statement it was – “governments you publicly shirtfront are disinclined to do every last thing you might want”! Fetch the fainting couch, wait, apparently we require a double, some kind of fainting settee.
I’m not even sure this qualifies as a marker between the liberal and illiberal branch of the liberal party – it seems almost more like the dividing line between elites in government playing to an audience of stupids, and genuinely very stupid people just running their mouths in government. Palintown.
Does Julie Bishop have an opinion on this very divisive issue? No – not stopping the boats or the death penalty – rather the very complicated matter of what happens when you make a big pile of diplomatic capital and light it on fire? It’s apparently very hard to work out the answer to this.