March Australia shared:
Michael Gordon: ‘One of Gillian Triggs’ first arguments after she became the nation’s human rights protector was not with Tony Abbott, or George Brandis, or Peter Dutton, or the gaggle of media commentators who have spent much of the past five years attacking her.
It was with her husband, Alan Brown, a respected career diplomat of four decades standing, not long after she succeeded Catherine Branson as president of the Australian Human Rights Commission in 2012.
As Triggs, 71, tells it, she came home one evening venting that the government was in breach of a particular international treaty obligation, only to be told by her “horrified” husband that her job as a public servant was to support the policies of the government of the day.
“I replied that not only could I speak out; my statute says I must speak out if particular acts are contrary to Australia’s obligations under international law,” she recalls
Brown, 82, says the discussion led him to study the Human Rights Commission Act, which made it crystal-clear that it was the president’s role to draw attention to government actions that were inconsistent with international treaties covering human rights.
“As a public servant, I was fully aware that I was there to carry out government policy and, if I didn’t agree with government policy, it was not my place to publicly contest it,” he explains. “But after reading the statute, I understood that she needed to take a different position.”
And she did.
What neither Brown nor Triggs anticipated was that she would become one of the most controversial and polarising statutory office-holders in Australia’s history: lauded for her fearless and unflinching advocacy by human rights groups and vilified by the right-wing commentariat.
Many in the latter camp have argued that Triggs’ departure is an opportunity to abolish the commission altogether. Chris Kenny, for instance, says Triggs’ tenure has exposed the commission as “a self-indulgent joke” that has had more success infringing upon human rights that defending them.
Triggs is unbowed. Of Kenny, perhaps the most vociferous of her many critics at The Australian, she says: “He keeps swirling the same facts over and over again and they are not true for a start – and that’s all he’s got. I’ve never met him. He’s never phoned me or made any attempt to understand anything. It’s just been a full-on attack.”
Many in the former camp see her as a national hero who refused to yield in the face of extraordinary pressure. “I don’t think there has been anyone in such a high position of public office who has been treated so terribly,” says Labor senator Lisa Singh.
This wasn’t what Triggs expected when she retired as the Dean of the Sydney Law School after a four-decade career as an international lawyer when Nicola Roxon, the country’s first female Attorney-General, appointed her president of the commission in July 2012 with a five-year term.
It was a disgrace that he (Brandis) sends a public servant along to do it. He didn’t even have the personal courage to ring me.
“My predecessor had been a former judge, very well regarded, done a great job, hadn’t been in the media much at all,” Triggs tells Fairfax Media. “She’d had her battles of principle, but been very effective in achieving change, and I thought I’d do exactly the same thing.”
What put Triggs offside with the newly-elected Coalition government was her decision in March 2012 to conduct a major inquiry into children in immigration detention. “Within a few months of that it was full on and it’s been full on, pretty much ever since,” she says in an interview ahead of her departure from the role next month.
What rankled the government most was that the inquiry had not been called when Labor was still in power, given that the problem of unauthorised boat arrivals had been solved before John Howard left office and returned under Labor, with the number of children in detention peaking around two months before Labor was defeated.
Triggs’ response was that the inquiry had been intended to proceed in 2014, 10 years after the commission’s first inquiry into children in detention, but it was delayed to ensure that it was not politicised by the 2013 election campaign.
“It was very hard to make the point that I, as president, had called the inquiry because of the period the children had been detained, rather than the fact of their detention. When you are doing an inquiry, you’re inquiring into the past and that past was predominantly Labor, but that point just got lost,” she says.
Certainly, it got lost on Coalition senators Ian Macdonald and Barry O’Sullivan, who never accepted this argument and took every opportunity when she appeared at Senate estimates hearings to challenge her.
While it was often unpleasant, Triggs is satisfied that she worked out ways to get her message across, no matter how hard the senators went for her. “Whether it was the right strategy or not, I don’t know, but it did mean the public would see someone standing up to people I think were bullies.”
When the inquiry handed down its report in February 2015, then immigration minister Scott Morrison dismissed the evidence gathered over eight months as “out of date” and meaningless because “the children are pretty much out”.
Tony Abbott went further, accusing the commission of being blatantly partisan and saying it should be ashamed of itself.
The Forgotten Children report spanned 315 pages and devoted a chapter to the plight of 116 children who were still on Nauru, concluding they were suffering from “extreme levels of physical, emotional, psychological and developmental distress” and identifying multiple breaches of the Convention of the Rights of the Child. Many of the conclusions were vindicated when the government was forced to commission its own inquiry, the Moss Review.
In the weeks before the release of the report, Triggs came under sustained attack after The Australian revealed that she called for the release of John Basikbasik, an Indonesian refugee who spent seven years in detention after serving a seven-year prison term for the violent manslaughter of his wife.
After receiving a complaint lodged by Basikbasik, Triggs not only concluded his detention was “arbitrary” and contrary to international law, she proposed he receive $350,000 in compensation. Abbott responded by accusing Triggs of making a “bizarre” decision that was likely to “shake people’s confidence in institutions such as the Human Rights Commission”.
Other government figures were even less constrained, with Morrison accusing her of having a “no consequences” view of the world that threatened public safety.
At the time, a defiant Triggs replied that it was her job to assess complaints according to international law and that Basikbasik’s continued detention after serving his sentence was a clear breach of the International Covenant on Civil and Political Rights, especially given the absence of any plan to rehabilitate him or consider conditions to minimise the risk of him re-offending if released.
Asked if this was the first low of his wife’s tenure, Brown tells Fairfax Media: “I don’t think she’s the sort of person who has lows.
“She would wish it had not happened, and I think she was expecting a bit more support from government for the commission. But when it didn’t come, she had to stand on her own, except that she wasn’t on her own. She was getting a lot of support from other people, myself included.”
What was not revealed until after the government launched its attack on the Forgotten Children report was that Attorney-General George Brandis had sought Triggs’ resignation two weeks before the report was tabled and indicated to Triggs that another job offer would be forthcoming if she went.
The message was conveyed to Triggs by a senior official in the Attorney-General’s Department, Greg Moraitis, a respected public servant who had studied international law under Triggs at the University of Melbourne and been legal counsellor at the Australian embassy in Paris when Alan Brown was ambassador.
Looking back on the approach, Triggs said it was all rather absurd because Brandis should have understood that hers was a statutory five-year appointment and she was never going to resign as a result of pressure from the government she was statute-bound to hold to account.
When Labor called in the Australian Federal Police to investigate whether any laws had been broken, Triggs made it plain she saw it as a political matter and did not want the matter to be pursued.
“I really saw the thing as farcical, more than anything else, and very quickly overcame it,” she says.
“It was a disgrace that he [Brandis] sends a public servant along to do it. He didn’t even have the personal courage to ring me. He never once in any discussion with me ever challenged my ability and yet would choose to do it publicly.”
While Triggs says she now has no personal relationship with the Attorney-General, she insists the pair have worked well together on issues that have required collaboration, including reforming her Act.
“But it’s nothing like what you’d want in a relationship with an Attorney because you really want to be able to talk to the Attorney about matters which are of great concern, like rising numbers of children in out of home care, or seeing if there is anything we can do in promoting proper constitutional recognition of Indigenous Australians.”
And what about Malcolm Turnbull, the prime minister who succeeded Abbott, who announced in November that Triggs’ appointment would not be renewed when her term expired?
“Well, he’s always courteous and pleasant, but he was singularly unpleasant when it came to an extraordinary announcement that I would not be reappointed, when I had made it very clear to the Attorney two years earlier that I was not seeking re-appointment. So that was a pure political act that was completely unnecessary and factually misleading.”
As with Brandis, Triggs rues the opportunity lost to work more closely with the Prime Minister on strategies to strengthen community organisations and civil society and minimise the risk of alienation and radicalisation, strategies she says are in urgent need of attention.
What she says caused her more concern was The Australian’s pursuit over the commission’s handling of two highly contentious complaints under section 18c of the Racial Discrimination Act, one involving students from the Queensland University of Technology, the other a cartoon by the late Bill Leak.
According to News Ltd columnist Andrew Bolt, who was found to have breached 18c in 2011, the commission “touted for complaints about a cartoon by Bill Leak, who was brought in for questioning and put under so much pressure that his children believe that’s what led to his fatal heart attack”.
Triggs has none of it. She insists the cartoon, depicting an Indigenous man with a beer can who could not remember his son’s name, did raise an 18c issue and that the commission was advised by Leak’s lawyers that they were not going to rely on the defence under 18d of the Act that the cartoon was commentary made in good faith on an issue of national importance. News vigorously disputes this.
The controversy prompted a push to change the section to make it lawful to offend, insult and intimidate on the basis of race. When the push was defeated in the Senate, sweeping procedural reforms that were supported by the commission were introduced, including greater powers for the president of the commission to terminate unwarranted complaints.
Had she had the enhanced power in the Leak case, Triggs says she would have used it to terminate the Leak complaint on the basis of the 18d defence. Of the decorated cartoonist’s death, she says: “It was a horrible tragedy for him and his family, but nothing whatsoever to do with the commission.”
Triggs says the antidote for the relentless criticism has always been an engagement with Australians across the country that has left her convinced that there is huge support for more humane treatment of those who came to this country seeking protection, but without an invitation.
“The eye opener as an international lawyer has been realising how isolated and exceptionalist Australia is in relation to human rights issues – that we do not see things through the prism of rights and freedoms,” she says.
“We have a very different approach which we like to sum up as a fair go, and up to a point it works because Australians do have a sense of what is fair and what is not fair, but it doesn’t get the depth of the problems facing particular groups in Australia.”
All of which suggests that, while Triggs plans to write a book about her five years as president (but not a “nasty kind of kiss and tell kind of thing”) she will not be walking away from advocacy, or incurring the wrath of the critics, when she steps aside’
Courtesy ‘Double Dissolution’