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 14, 2015 at 8:23 pmThe 81% poll result should be ignored?
To be clear, you are arguing that any idea that polls well should be automatically enacted as legislation ?
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.
The hypocrisy of someone like you, a staunch, die-hard supporter of anti-democratic and authoritarian Liberal Governments, criticising *anyone* about leaning strongly towards totalitarianism, is staggering.
It’s dang awkward that both major parties are ignoring Triggs’ “noble and righteous” view and going with the mob.
It’s completely unsurprising that two parties with barely daylight between most of their policies, pander to the same idiotic ideas.
Norman Hanscombe
June 14, 2015 at 9:20 pmdrsmithy, please re-read what YOU said about, “To be clear, you are arguing that any idea that polls well should be automatically enacted as legislation ?” That doesn’t actually make much sense in terms of ordinary [even primary school level] use of the English language.
The rest of your ‘contribution’ needs far more than a mere re-reading by you.
Posted @ 9.18 p.m. at which time my 8.11 p.m. post is still at the barriers with the Crikey Censorship Commissariat which certainly gives your complaint about “leaning strongly towards totalitarianism” an ironic flavour.
drsmithy
June 15, 2015 at 10:04 amYou 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.
Yeah. It’s all because the darkies can’t take care of themselves.
Centuries of imperialistic meddling by western powers has nothing whatsoever to do with it, right ?
What’s the definition of insanity again ? Doing the same thing multiple times and expecting a different outcome ?
As for “millions” of people arriving by boat, run some numbers on the practical execution of that at a few hundred per boat and get back to us. While you’re at it, consider why the millions of actual “economic refugees” you’ve been happily welcoming for the last 10-15 years under the auspices of “skilled immigration” are OK, but a rounding error’s worth of refugees fleeing persecution is reason for hysteria.
Norman Hanscombe
June 15, 2015 at 11:52 amdrsmithy, you ask “As for “millions” of people arriving by boat, run some numbers on the practical execution of that at a few hundred per boat and get back to us.”
Leaving aside the irony of YOU criticising someone else for hyperbole of “millions”, hasn’t it occurred to you that if the Australian Government relaxed its Border Control in ways which pleased you, then the additional arrivals could generate a very major flow on of “family” arrivals to the point where the Australian Environment and Australian citizens would suffer serious negative consequences?
The “economic refugees” we’ve been accepting for the last 10-15 years under the auspices of “skilled immigration” made valuable contributions and wer4e NOT the sorts of welfare burdens uninvited arrivals have tended to be.
Do, by the way, try in future to display less of the “hysteria” you attribute to others.
David Hand
June 15, 2015 at 12:16 pmDoctor,
I am not advocating that any idea that polls well should be enacted as legislation. What I am saying is that in a democracy, a political party that wants to get elected should take note of public opinion or else remain a fringe party of protest like…. hmmm, let me try and think of one….. The Greens!!
Both major parties are in lockstep over the boats and ISIL because the country overwhelmingly wants the boats to stop and ISIL fighters not to come back.
Triggs is a lone voice who has been hung out to dry by her supposed supporters because they know that what she advocates is electoral annihilation.
Norman Hanscombe
June 15, 2015 at 12:38 pmDavid, what you meant should have been readily understood by any non-blinkered moderately literate reader. We need to understand how frustrating it must be for Crikey Acolytes to deal with the fact that most Australian Citizens won’t follow the Crikey version of a True Believer Code.
Off now to apply for a Passport to Visit Viet Nam, where hopefully I shall be able to find more intellectually balanced company than is possible with most posters on Crikey threads.
Perhaps by the time I’m back from Viet Nam the Crikey Censorship Commissariat will have cleared most of my posts.
drsmithy
June 15, 2015 at 12:50 pmTriggs is a lone voice who has been hung out to dry by her supposed supporters because they know that what she advocates is electoral annihilation.
I think you mispronounced “because they know what she’s saying will be grossly and dishonestly misrepresented by a complicit media”.
Triggs is rightly pointing out that there are legal and diplomatic repurcussions to continued violations of human rights laws and treaty obligations, because that’s part of her job. The Government is doing its best to obfuscate and hide the truth, while publicly smearing its critics, because that’s what it does.
David Hand
June 15, 2015 at 1:20 pmYes doctor,
I see you are still banging on with your elitist view that the voting public are too stupid to have political views of their own.
drsmithy
June 15, 2015 at 8:07 pmI see you are still banging on with your elitist view that the voting public are too stupid to have political views of their own.
No, David.
I am “banging on with my elitist view” that human rights and the law trump opinion polls, and that Governments should be transparent, humble and work primarily for the good of the country.
You might want to run a country based on opinion polls. I prefer something a little more rigorous and sustainable.
Norman Hanscombe
June 15, 2015 at 8:28 pmdrsmithy, I’d not suggest (as you did) that you’re “banging on with (your) elitist view” about anything. You do bang on, of course, but no one would see any reason for considering your bangings as suggesting even remotely that you were part of an intellectual elite.
Your concept of what the legal basis is for human rights hardly warrants comment, whether as you say, “the law trump opinion polls” has to depend upon what issues you have in mind; but you really don’t spell that out very well.
Your meander into apple pie and motherhood platitudes with comments about, “Governments should be transparent, humble and work primarily for the good of the country” was at least good for a chuckle; but not as humorous as your hilariously vague assertion that you “prefer something a little more rigorous and sustainable.”
But you’re possibly doing your best.