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The government is trying to ridicule the president of the Human Rights Commission out of office. But she won’t go. By Martin McKenzie-Murray.

Abbott’s war on Gillian Triggs

Professor Gillian Triggs, president of the Australian Human Rights Commission.
Credit: CITIZENSIDE/SIOBHAN MARREN / citizenside.com

Last Thursday, the president of the Human Rights Commission, Professor Gillian Triggs, stood before an audience in Adelaide’s convention centre. She was delivering a lecture as part of a “Women in Leadership” series, organised by the Committee for Economic Development in Australia.

What followed it was another round of reputational bombardment by the federal government. Their target was not Triggs’s prepared remarks, but her response to a question.

On the matter of regional partnerships, Triggs said: “Boats have got to stop. But have we thought about what the consequences are of pushing people back to our neighbour, Indonesia? Is it any wonder that Indonesia will not engage with us on other issues that we care about, like the death penalty?”

The immigration minister, Peter Dutton, organised a press conference for the following afternoon. His condemnation of Triggs was fearsome, as he argued that the commissioner had improperly – and cynically – braided her opposition to immigration policy with the deaths of drug traffickers Andrew Chan and Myuran Sukumaran. “Professor Triggs holds a very high office in this country,” Dutton said, “and the Australian public believe, I think, that people in these positions should act in a responsible way. She should front the cameras, apologise to the government, to the Australian people, but most of all to the two families.

“I think Professor Triggs trying to make some nexus between these two issues is a complete outrage and she should retract her statements today. For her to be out there making these unfounded comments is a complete disgrace… So Professor Triggs does need to front the media today to retract these outrageous slurs.”

The federal government returned to its criticism, releasing a joint comment attributed to Dutton and Attorney-General George Brandis the same day. It read, in part: “Her comments on the execution of Andrew Chan and Myuran Sukumaran are poorly informed and foolish. They will also be offensive to Indonesia by implying, as they do, that Indonesia’s decision to execute two Australians was influenced by international considerations.”

Triggs had never mentioned the two Australians executed in April. It was an interpretation of convenience and bad faith. It sought not to engage Triggs’s comments, but to denounce her personally as gratuitous – a woman happy to invoke the deaths of Chan and Sukumaran for political ends.

Now under attack, Triggs sought to contextualise her remarks: “I was making the observation that any solution to the movement of asylum seekers and refugees in our region should be by diplomatic negotiation.”

“Like most Australians, I believe a strong diplomatic relationship with Indonesia, and all nations within the Asian region, is vitally important to us all,” she said.

“At no time did I refer to the recent executions of the two young Australians. Rather I spoke of the future need to work diplomatically to reach agreement on ending the death penalty in the region. This reflected my early public commentary on the need for a moratorium on the death penalty.”

Triggs was saying nothing different from the politicians, former diplomats and Asian experts I have spoken to in previous months regarding our relationship with Indonesia. While relations with our giant neighbour are stabilised over the long run by mutual interest, there are periodic tempests. Our negotiations with Indonesia regarding Chan and Sukumaran were complex, and largely dictated by the Indonesian president’s calculated obduracy, but we had also undermined ourselves. Some Indonesian officials were sceptical about our moral overtures – our professed respect for both life and sovereignty – when the two appeared contradicted by ardent support for the execution of the Bali bombers and our breaching of maritime borders during secretive tow-back operations.

Which was precisely part of Triggs’s point. If we are to unilaterally tow back boats – or worse, bribe ship captains to return, as alleged by an Indonesian police chief this week – how well placed are we to discuss human rights matters with our neighbour? Isn’t it worthwhile to ask how our domestic policy might interfere with our human rights agenda in the region? In this instance, these questions are tied to Triggs’s opposition to capital punishment – something that very obviously adheres to her mandate. Triggs’s priorities may not be those of the government, but as a statutorily independent monitor, that is kind of the point.

Calls for resignation

“I don’t think I’ve seen anything like it before,” an ex-diplomat told me this week, reflecting upon the government’s campaign against Triggs. Of course, the government would recast that – that it is, in fact, Triggs who is campaigning against them.

If there was any doubt the Abbott government loathes her, it was dispelled this week as her contextualised questions were bludgeoned and reshaped into offensive agitprop. The government is frustrated that they cannot formally remove her, barring criminal offence or gross misconduct, and have undertaken to ridicule her out of office. It raised the ire of the United Nations, who counselled the government to back off, as did Australia’s first commissioner of human rights, Professor Brian Burdekin: “I think to attack the Human Rights Commission [HRC], albeit in a way that was completely unjustified on the facts, as far as I can see … to hold the commission or to place the commission in a position where it’s ridiculed, and almost in a way that’s contemptible and contemptuous, in federal parliament – in my view, that’s just disgraceful behaviour.”

There is now a long history to the enmity between the government and Triggs, founded in her decision to conduct an investigation into child detention last year – the damning report it produced, The Forgotten Children, was tabled early this year. The Abbott government begrudged that the investigation wasn’t begun until they took office, when they had largely inherited the immigration framework from Labor. The government was especially incensed given the number of children in detention had decreased on their watch.

But the report didn’t fail to hold the previous government to account, and the commission had also released reports during Labor’s tenure. Triggs also pointed out that while the number of children in detention had decreased under Abbott, the time they spent detained had increased. Regardless, she was seen to be a political agitator, improperly using her office to undermine the government. The substance of the report – that children were attempting suicide and were subject to molestation – was ignored in favour of accusations of bias. The obstinacy assumed comical dimensions when Senator Ian Macdonald, chairman of the committee overseeing the HRC’s report, denounced its contents before admitting he had not bothered to read it.

Triggs was pilloried in senate estimates, while a rancorous chorus of government backbenchers joined their cabinet colleagues in calling for her resignation. Variously, Triggs was “biased”, her position “hopelessly untenable” and her character “lacking credibility”. The prime minister dismissed the report as a political “stitch-up” and said the government had “lost confidence” in Triggs. It was then revealed that prior to the release of the Forgotten Children report, the government had tried to induce her resignation by offering her another position. Triggs refused, and the strafing began. It has never really stopped. The campaign has now prominently involved Abbott, Scott Morrison, Brandis and Dutton.

Basikbasik case

Much criticism was aroused by Triggs’s ruling, in June last year, that John Basikbasik be released from Villawood Immigration Detention Centre and paid compensation. Basikbasik presented a devil’s problem. Convicted in 2000 of manslaughter after the brutal bashing of his wife, Basikbasik would have his protection visa revoked in 2003 – this wasn’t the first instance of violence he had demonstrated in Australia, since arriving from Indonesia in 1985.

Having served his time in prison, Basikbasik was released into limbo – the Australian government would not release him into the community, nor could they send him back to Indonesia where they had already determined he was at risk of persecution. Villawood detention it was. After Basikbasik appealed, Triggs found that his seven-year detention – post-sentence – was legally arbitrary and indefinite. He was being detained without charge. She recommended compensation.

Politically it is a difficult situation. The courts found Basikbasik at risk of reoffending. But Triggs’s job was to interpret the law, which she did. She would not resile from her findings, nor the principle that all people – including violent criminals – are equal before law.

Though these rulings were made in June, it would not be until January – just before the tabling of the Forgotten Children report – that the government marshalled against it. The timing was telling. Abbott dismissed it as “bizarre”; Dutton called it “offensive”. The matter was, in fact, deeply complicated but not for the first time would the government respond in bad faith. It was now that The Australian really joined the fray.

“Rather than feeling chastened by her missteps, the HRC president seems to be relishing her lot as a cause celebre for political progressives and their functionaries at the ABC, Guardian Australia and Fairfax Media,” the paper said in one editorial. “In the long run, when Professor Triggs is gone from the scene and her incoherent protestations are long forgotten, it is stopping the boats that will be remembered as an enviable achievement of public policy.”

The Australian’s associate editor, Chris Kenny, has been a persistent critic of Triggs. As far back as November, he was writing that her future with the commission was “under a cloud”. When pressed by the senate committee, Triggs appeared to admit she discussed the Forgotten Children inquiry with two Labor immigration ministers before the election. Triggs later formally clarified she hadn’t discussed the proposed inquiry with the ministers and maintained she had wished to avoid conducting the inquiry during an election campaign – a period in which “this very fraught issue would be highly politicised”. Kenny called her appearance before the committee “disastrous”. Three paragraphs in, he announced: “Her position appears untenable.”

In a column this week, Kenny described the defence of Triggs as an “Orwellian sham” led by the ABC. 

“What all these defenders of Triggs have in common is that they ignore the facts,” he wrote. “They simply refuse to share with their audiences the actions and words that caused the government to lose faith in the AHRC president.”

Magna Carta hypocrisy

Sealed in a carefully climate-controlled glass display in Parliament House is a copy of our “foundation of democracy”: the Magna Carta. It turns 800 this year, and on Monday Gillian Triggs will deliver a keynote speech on its importance. First written in 1215, the Australian government purchased a 1297 iteration in 1952, making it one of only two of the version that rests outside Britain.

Written in Latin on calfskin, the Magna Carta is something of a democratic talisman: the foundation of the rule of law and Western constitutions. It sought to strip barons of arbitrary power and provide citizens with redress and equity. It endures symbolically, but as the Magna Carta itself was modified over a century, so too were its principles.

Last year, George Brandis had this to say about the document: “We can trace our constitution back some 800 years to the fundamental principles enshrined in the Magna Carta: limiting arbitrary power, holding the executive to account, and affirming the rule of law.”

Which is presumably what Gillian Triggs had in mind this week, when on the evening of Dutton’s attacks she criticised the government’s proposals to empower a minister to revoke sole Australian citizenship from those suspected of terrorism. Triggs said: “Supremacy of the law over the sovereign – or in today’s parlance, executive – government is under threat in our democracy.

“The overreach of executive power is clear in the yet-to-be-defined proposal that those accused of being jihadists fighting against Australian interests will be stripped of their citizenship if they are potentially dual nationals… Not only may this idea violate Australia’s international obligation not to render a person stateless, but also the detention may be at the discretion of a minister without recourse to judicial processes.”

As Canberra celebrates the Magna Carta, in some quarters piously, the government would do well to meditate upon particular sections within it. Unlike other hopelessly antiquated injunctions, these seem as if they were written yesterday. They speak directly to Triggs’s concerns about swollen executive power.

“In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.”

And: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Triggs will deliver her lecture this Monday. She has not yet been spooked by the government’s campaign to destroy her. We will wait and see if her reflections upon the document are practical and contemporary. Given her pugnacity, there’s little doubt they will be.

This article was first published in the print edition of The Saturday Paper on Jun 13, 2015 as "Abbott’s war on Gillian Triggs". Subscribe here.

Martin McKenzie-Murray
is The Saturday Paper’s chief correspondent.

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