Human Rights Commission president Gillian Triggs speaks out
When Gillian Triggs began her five-year term as president of the Australian Human Rights Commission in 2012 she aimed to bring our domestic laws into line with our international treaty obligations. Now, after the government’s attempts to trash her reputation and to ignore most of the 16 recommendations in The Forgotten Children report, she’s just back from Geneva where the United Nations review of our human rights record found we’d regressed. Australia, the review found, continues to be in breach of its human rights obligations.
Ramona Koval Did you think it was going to be this hard when you started at the commission?
Gillian Triggs [laughs] No! I had absolutely no idea. I rather naively thought if you’d been dean of a law faculty you could manage anything. I was unprepared for dealing with senior political figures with no education whatsoever about international law and about Australia’s remarkable historical record which they are now diminishing. We’ve got senior public servants who will roll their eyes at the idea of a human right. They say, “Look, Gillian, you’re beating a dead horse.” It’s not going to work, because they can’t talk to the minister in terms of human rights. We’ve had, in my view, very poor leadership on this issue for the past 10 to 15 years, from the “children overboard” lie. They’ve been prepared to misstate the facts and conflate asylum-seeker issues with global terrorism. What I’m saying applies equally to Labor and Liberal and National parties. They’ve used this in bad faith to promote their own political opportunistic positions.
RK When you delivered The Forgotten Children report you said your investigations proved to be “life-changing”. What did you mean?
GT Talking to young men, old women and children on Christmas Island for the third time and they’re saying to me, “You’ve been here three times and what have you done? You’ve achieved nothing for us.” There were children in the dirt with chickens at our feet, the children waiting to use my pens and pencils because they had nothing to write with. Seeing women in their cabins who are starving themselves to death because they want to die, vomiting in front of me and I’m helping to clean them up and the guard turns away and says, “Nothing to do with me; it’s not my job.” And I said, “Get a doctor!” I’ve lived in a fairly lofty world of international law … Then you realise that you must learn how to translate these broad principles of law into action at a practical level.
RK What can you say to those men and women?
GT I say I have very limited powers and I’m doing everything I can but I find myself saying pompous things like, “Please don’t break the rules here in the camp. If you do they declare you noncompliant and you end up staying longer or they are spiteful to you. Please be patient.” You can hear I’m not saying anything very comforting. The government has used the word unlawful [in relation to asylum seekers] and George Orwell understood the power of language very well. In the department you have a minister saying, “You will call these people ‘illegals’.” It’s shocking that Australia would come to that depth of abuse of power.
RK You’ve said, “When I was younger I thought one could build on the past. But I have learned that we need to be eternally vigilant in ensuring human rights in a modern democracy.” Is that a sense of an idea of conservatism, building on the past, not letting go of good things that have been achieved? And feeling that confidence in that idea has been shaken?
GT A shocking phenomenon is Australians don’t even understand their own democratic system. They are quite content to have parliament be complicit with passing legislation to strengthen the powers of the executive and to exclude the courts. They have no idea of the separation of powers and the excessive overreach of executive government.
RK Sisyphus comes to mind.
GT Well, it’s quite true. One can be astonished at the very simplistic level at which I need to speak. Our parliamentarians are usually seriously ill-informed and uneducated. All they know is the world of Canberra and politics and they’ve lost any sense of a rule of law, and curiously enough for Canberra they don’t even understand what democracy is. Not an easy argument to make, as you can imagine: me telling a parliamentarian they need to be better educated. [laughs] But it’s true.
RK Have you done that?
GT Oh, I have. And I have to say that some parliamentarians, and surprising ones, a Nationals MP, says “Come and give us a seminar.” Another one asked me to come up and work in parliament with the members of a particular committee that she was on. Terrific! But they listened to me and do you know, the response of some of them was, “Well, we had no idea Australia had signed up to these treaties. We should withdraw from them!” So backward steps! You still hear people say we must withdraw from the Refugee Convention or we must withdraw from the International Covenant on Civil and Political Rights.
RK The treatment of you and your officers at last year’s senate legal and constitutional affairs legislation committee was quite shocking. You stood up to it with grace. Were you expecting it?
GT I expected questions on legal and constitutional analysis and on how we spend public monies. I have never had a question on that ever. I was completely unprepared for the attack at a personal level.
RK What were you thinking as the nine hours unfolded?
GT I was thinking, “I must stay calm, I must keep my answers measured, moderate and evidence-based, I mustn’t be rattled by them and I mustn’t react with the same lack of courtesy that they show to me.” The reality was that they could suffer no harm from this, whereas if I gave the wrong answers, I could lose my case and I just had to keep control of myself. I knew we had the law right and the facts right. I knew that anger was under the surface. I knew I could have responded and destroyed them – I could have said, “You’ve asked me a question that demonstrated you have not read our statute. How dare you question what I do?” And the chair [Queensland senator Ian Macdonald] said, “I haven’t read The Forgotten Children’s report because I’m far too busy.” How dare you do that when you are an elected parliamentarian and you are expected and required to read my reports.
RK I was astonished listening to him – how could the chair of the committee say he hadn’t read the report with such pride?
GT I know. So I could have reacted very angrily to that and I am quite articulate and I can be very strong if I need to be: I could have used those skills, but I determinedly did not. It’s an environment in which I must be respectful, so frankly I thought as a lawyer I’d lose my case if I did [react angrily]. There was a point when I thought, “I’ve had 50 years as a reasonably respectable and quite conservative lawyer, how on earth do I find myself in this situation?” [laughs] But in the end I just had to get through the moment. But there were some lovely little side things, like the public servants behind the scenes, coming around with bowls of Jelly Snakes and Jelly Babies and mini Mars bars. Because we’d had nothing to eat, and they wouldn’t get us any food. The senators and members of the committee were all going off and having lunch. We’d had no breakfast, no morning tea and no lunch and I thought I’d faint, but these wonderful people were coming in and we were grabbing the food and eating it and they were saying [sotto voce], “You do realise that we are not responsible for this, don’t you?”, because some might think the secretariat had fed them these questions.
RK But it was all the senators’ own work?
GT With the attorney-general sitting next to me and encouraging it. And he was writing the questions which would be taken by his staff up to one of the senators, so feeding them the questions – an extraordinary experience. People were hugely supportive afterwards. Flowers were coming in. Each one brought a cheer from the staff and eventually it was so full that I couldn’t get in the room anymore. It was almost as though I had died the week before, and I’m thinking I must have missed something because I’m still standing here.
RK Bullying in such a public forum made me think of the experience people have behind closed doors, especially in immigration detention, for example – such hubris to have this occur in a broadcast to the nation without any thought of what it might imply.
GT Yes, hubris, quite right – did they ever say, “What if people see me behave like this? What will this mean about Australia’s democracy?” And the other point is if they can bully the president of the Human Rights Commission when she is on very firm grounds in law and evidence, what are they doing in these detention camps with these concepts of “noncompliance”? What on earth does this mean? And the spitefulness of some of it – making women stand in the heat for sanitary materials, or they are given three nappies a day and the child has used more than that and they have to stand again for more nappies.
RK The extent of the hostility and the personal nature of the attacks must have shocked you.
GT To use those terrible words that the prime minister and especially the attorney-general used: “We have no confidence in Gillian Triggs.” The words reverberated around my head for a very long time. It was a very cruel and unjustified comment and the attempt to get me to resign for another position was a disgraceful thing to do, but it was exposed by the questions in senate. I could have had other options, the possibility of criminal prosecutions of the attorney.
RK I wondered why you decided against pursuing that avenue?
GT The AFP did consider it. They dealt with it extremely professionally. They were courteous but I made the decision that the greatest recognition of this wrongdoing was in the senate itself, when the senate censured the attorney for the first time in about 80 years and I felt that this issue was much more political than it was legal. I also wanted to move on, and I think that this underlies a lot of cases that don’t proceed.
RK Senator Brandis told a journalist a year or so into your appointment that: “My sense is that she’s more conservative than her predecessor and therefore more open to cultural change at the commission.” Was it a message to you?
GT Oh, it was a deliberate message. I’m a lawyer and lawyers tend to be conservative. I really love the law and that means you tend to be cautious and careful and I have been for 50 years. It was a message that he expected me to stay away from the controversial matters. Well, no Human Rights president in the world could have turned their backs on the human rights issue.
RK Did you note it at the time as a message to you?
GT Yes. I thought politicians work in curious ways. Wouldn’t it have been nicer of him to pick up the phone or meet me for coffee, which he was happy to do in the glare of publicity in other contexts.
RK Could the government’s laws to prevent doctors speaking about the harm being inflicted on refugees or the ban on community legal centres from advocating law reform be framed as free speech issues, too?
GT Indeed. Of course they can. And this is where you get people who will use the language of human rights occasionally like “freedom of speech, liberty of movement” but very quickly find that they are trapped because they’ve promoted laws which are precisely against those freedoms. The attempt to stop people speaking about conditions was simply ham-fisted and completely unnecessary. Probably they are protected by the whistleblower’s law anyway, and in any event any self-respecting medico will always abide by the Hippocratic oath long before they are going to worry about some detailed bit of legislation passed in Canberra.
RK Thinking of the response to your report, how do you manage disappointment?
GT It’s hard because we’ve worked so hard on this. Our report met social science standards of credibility, we took senior members of the medical profession with us – paediatricians, psychiatrists who lent a huge level of credibility to our report. Our language is moderate, balanced and applied to both governments equally. It’s very disappointing to have such a careful report damaged in the way that this government set out to do. What I have learned is that politics in Australia is absolutely brutal.
RK When the new prime minister took up his office last year there were reports that he had invited you over for a cuppa, even poured the tea. This seemed to be the beginning of a more constructive relationship between the president of the AHRC and the government. You said that you were very optimistic indeed. Has there been a lot of tea since then?
GT No. I haven’t shared a cup of tea but I remain optimistic. I have written many times to the PM. His staff are terrific to work with. I deeply believe the first words he said to me, which were that on his watch we are returning to the rule of law, to the Westminster system and to respect for the AHRC. I believe that he believes that, and were he to win the next election I believe he will be good to his word.
RK I see that you have not let the 2015 experience cower you. You have made many comments on matters that you have proper concerns in – from marriage equality and Safe Schools programs to calling for monitoring of conditions for asylum seekers and refugees in offshore detention centres to concerns about counterterrorism laws. It looks like, if the government thought they could bully you into submission, they made rather the wrong call.
GT I’ve just turned 70 and I’ve been doing this for a long time and I’m so confident about the law and about the evidence for the law not being respected that I feel very sure-footed in going forward on these other issues. My resilience and determination and experience for a long time in the law give me the determination to get through the remaining 15 months to continue to speak out. When you see that you are being bullied by people who you know are not coming from a good place, you know you don’t have to give in to them. They are cowards and the moment you stand up to them they crumble, and they did crumble. And several now have been seen off long before me. They’re not used to a woman aged 70 standing up to them. They can’t quite believe it. If I were 40 looking for a career opportunity, I probably wouldn’t do what I’ve done because it would have queered the pitch for me professionally. But why do I care now? I can do what I’m trained to do and they almost can’t touch me. And I’ll continue to do that work when I’ve finished with this position.
This article was first published in the print edition of The Saturday Paper on Apr 23, 2016 as "‘I knew I could have destroyed them’". Subscribe here.