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”
drsmithy
June 11, 2015 at 10:36 pmIt’s a great irony that after Keane huffing and puffing about Brandis and Dutton thwarting the law that Triggs is trying to uphold, the very next story in Crikey says that 81% of the country agree with the Government and Disagree with Triggs.
Indeed. What better way to decide legislation than poll results ? Why would we need politicians at all ?
But what will you do when you don’t like the results of a poll !?
Ken Lambert
June 12, 2015 at 12:02 amThank you David Hand
I always enjoy speaking well of you. If you want a useful contribution to the debate, you might look at some of my prior comments on Triggs. The story does not change with her…she is simply replaying the same old soft left line of faux bleeding heart do-goodism devoid of the reality of having to make real decisions which actually have effect on real people.
The consequences of the nonsense she spouts would be a never ending flow of smugglees and a roaring trade for people smugglers and corruption of officials. The moral equivalent of social Darwinism on the rampage. Those who had money would get a place in front of the poor who had none.
No one likes to see the suffering victims of poverty and chaos around the world….millions would want to be in an Australia rather than where they had the misfortune to be born…but the reality is we can take a finite number, and those must come through the front door on a some humane criteria of need and established identity.
Norman Hanscombe
June 12, 2015 at 12:51 amDavid Hand, even if as you say, “It’s a great irony that after Keane huffing and puffing about Brandis and Dutton thwarting the law that Triggs is trying to uphold, the very next story in Crikey says that 81% of the country agree with the Government and Disagree with Triggs”, keep in mind that Crikey’s sense of irony is fatally rusty.
Drsmithy, I don’t know what you will do, “when you don’t like the results of a poll”, but we all know what Crikey will do — pretend they’re not there.
Norman Hanscombe
June 12, 2015 at 12:56 amdrsmithy, re Post #40, why would I complain about cowards not being willing to debate issues? Surely you realise,however, that it’s far too common to generate a “belly laugh”?
drsmithy
June 12, 2015 at 7:59 amIt would be rather shocking to see anything other than dishonesty and fallacies from you Ken. Thankfully I didn’t even need to raise my eyebrows.
drsmithy
June 12, 2015 at 11:48 amdrsmithy, re Post #40, why would I complain about cowards not being willing to debate issues?
Because it gives you a pitifully weak excuse to continue not engaging in debate by attacking an “anonymity” straw man instead.
You are the poster child for “not engaging in debate” in this forum.
Ken Lambert
June 12, 2015 at 11:05 pmdrsmithy,
The reality is that the boats have stopped, and resolute action by the Abbott Govt did it; in the place of manifest wailing and gnashing of teeth by the Rudd-Gillard-Rudd circus.
If you want a solution worth debating, then you might easily adduce that if millions want to come to Australia, and are willing to risk treasure and life to get here, then our fair land’s assets must be something to do with it.
First world living standards, personal and political freedom, rule of law, free enterprise …liberal democracy.
You could then conclude that the creation of Australian conditions in poor chaotic tyrannical countries could be an obvious solution.
But that would entail shouldering once again something like the white man’s burden of Liberal Imperialism.
When empires wither and collapse, chaos reigns supreme unless some power walks softly and carries a big stick. The US is laying down her load after the spivvery of Wall St crooks, and the debilitating reigns of an idiotic fratboy and the grandson of a Kenyan goat herder.
200 years of Anglo Liberalism is giving way to the Chinese solution which is presently a loud walk with a medium sized stick… which promises to get bigger.
Norman Hanscombe
June 13, 2015 at 8:22 amKen, he’s only comfortable with concentrating on irrelevant abuse of politicians he doesn’t like, and ‘answering’ opponents points for which he has no answer by tossing in complaints about it being pointed out, for example, that many of Crikey’s ‘fearless’ paladins aren’t game to come out of their skirting board funk holes.
I can empathise with his apparent unease about debating issues in front of a live audience, because it’s always been a problem for me; but unlike him, where I feel an issue is important, then I tackle it.
Off shortly for a long train/bus day trip to do just that, hoping on the way that I’ll come home to find that for once he’s found something relevant to post.
David Hand
June 14, 2015 at 7:44 pmDoctor,
The 81% poll result should be ignored? The inner urban elite speaks again, advocating politics that lean strongly towards totalitarianism where the unwashed can’t be allowed a say because their view is unworthy.
It’s dang awkward that both major parties are ignoring Triggs’ “noble and righteous” view and going with the mob.
Dang awkward, that.
Norman Hanscombe
June 14, 2015 at 8:11 pmDavid, unfortunately something the more vociferous Faux Progressive enthusiasts on Crikey threads can’t even come close to understanding is the fact that since they can’t find even one of their coterie prepared to participate in a debate in front of a live audience [where their fellow travellers would be more likely to turn up than most citizens would] suggests that deep down they’re not as confident of their position as their comments might seem to indicate.
But no doubt they’re happy feeling ‘noble’.
Posted @ 8.011 p.m. Sunday.