Australia’s human rights disgraces
The day Gillian Triggs stepped down from her job as president of the Australian Human Rights Commission, Alan Jones tweeted his delight.
“The delusional Gillian Triggs’ term as Human Rights Commissioner ends today. Good riddance,” the 2GB shock jock wrote on July 25.
It was an ending he and his fellow right-wing demagogues had looked forward to for a long time.
She’d been resilient, having toughed out her full five-year term as president of the commission, despite former prime minister Tony Abbott’s desire to abolish the organisation and the government’s attempt – according to evidence to a senate committee – to induce her to quit with the offer of other work. That is not to mention the uncounted thousands of words of hostile media commentary, especially in the Murdoch press and on talkback radio.
Surely now, though, she would be ready to retreat quietly, even gratefully, into private life. Clearly that was Jones’s hope. She was, after all, six years over the standard Australian retirement age.
Not a bit of it, in Triggs’s telling: “I’m full-on and will stay full-on until somebody takes notice.”
When The Saturday Paper called Triggs this week, she was en route to an appointment at the University of Melbourne, where she has been offered a vice-chancellor’s fellowship.
On Tuesday evening at the Sydney Opera House, she will be part of a panel convened by the Kaldor Centre for International Refugee Law, where she will offer a damning analysis of Australian asylum-seeker policy. She has about 10 speaking engagements already scheduled before year’s end.
Triggs is also taking over as chairman of Justice Connect, an organisation that works with about 50 of Australia’s largest law firms and thousands of individual lawyers to provide pro bono legal advice for disadvantaged individuals and groups: the homeless, aged, infirm, newly arrived migrants and refugees, and others who might have need of legal help but neither the means nor knowledge to otherwise access it.
Triggs is also joining a prominent London legal chambers as a barrister. And she’s writing a book.
“It will be about my five years as president and my observations about human rights. It will not be a personal thing; it will stick to the issues,” she says. “I am definitely not giving in.”
Indeed, the end of Triggs’s time with the commission seems to have freed her to say what she really thinks. And, ironically, her critics in politics and the media have both hardened her resolve and lifted her profile.
Thus as her term drew to its end, there was a scramble for exit interviews, and she gave a couple of pithy ones. She told one that the job had “radicalised” her. On her very last day, she told RN Breakfast that during her tenure she had watched the state of human rights in Australia “regressing on almost every front – women, Indigenous, homeless, and asylum seekers and refugees”.
“I think it is partly because we have a government which is ideologically opposed to human rights,” she said. “Mr Abbott, when he campaigned for government, one of those campaign platforms was the elimination of the Australian Human Rights Commission. So in that sense it was part of the platform and it’s been maintained pretty well ever since.”
Her words caused great fulmination among the usual critics. It was subsequent to this that Jones tweeted his accusation Triggs was “delusional”. Herald Sun columnist Andrew Bolt said she “leaves her presidency of the commission with another false and biased claim”.
Asked about the response to her Radio National interview, she gives a verbal shrug: “Yes, it did cause some comment.”
She continued: “But the evidence, on almost any indices, shows that we are not only going backwards on all of these elements, but that it’s a result of policy favoured by many within government.”
From here, Triggs enumerates some facts. It is facts and the law that have always been her armour against critics. The fact is Aboriginal incarceration rates have more than doubled in the past quarter-century.
“Indigenous incarceration rates are the highest in the world and are getting worse and governments have turned a blind eye and refused to deal with it,” she says.
“The commission has reported on this for decades. I, for example, reported to parliament on the use of restraints, a report that was completely ignored. It took the CCTV footage of the treatment in the Northern Territory to lead to a royal commission. We’ll see what, if anything, comes of it.”
On women, Triggs points to the Word Economic Forum’s gender index, which shows that in the 10 years to 2016 Australia dropped from 15th to 46th in the world on the combined measure of economic participation, health and survival, and political empowerment of women, even as we remained first for education.
“Our position of women is highly regressive,” she says. “Women’s superannuation is less than half, we’re the ones who significantly suffer from casualisation and contract work in employment. Domestic violence is a growing issue. Look at the government’s removal of funds from refuges for women and minuscule extra funds for domestic violence.”
As for homelessness: we await the findings of the most recent census for the hard statistics, but there is no lack of evidence it is worsening. We see the rough sleepers in our cities. We see the response of conservative governments, legislating to remove them from view.
The issue of Australia’s treatment of asylum seekers is the most obvious example of the country’s regression on human rights, Triggs says, but there is a host of other less obvious threats.
“A big concern is the significant increase in executive discretion,” she says, noting the numerous moves by government, particularly in areas of counterterrorism and immigration laws, to remove powers from the courts and bodies such as the Administrative Appeals Tribunal. She points also to anti-protest laws introduced in various states, which she sees as “the criminalising of free speech”.
“Also,” she says, “we are unique in the common law world in not having a bill of rights. The protections that most other countries have, allowing the courts to apply basic human rights or standards to government measures … we have not got those tools to reconsider parliamentary provisions breaching human rights.”
To this litany she adds a couple of other factors, first among them an apparent “weakening of the role of parliamentarians generally in the protection of human rights”.
“I could go on about the traditional role of parliaments since the 17th century to stand against the executive and demand common law rights,” she says. “But let’s not.”
The second other factor is an uninformed polity. Triggs is critical of the fact Australia does little to educate its citizenry about the constitution, the role of the law and common law rights.
“Civics education – I know it’s not very sexy, but that’s where you’ve got to go. Australia compares unfavourably in this to most of Europe or North America.”
She also lays a large measure of blame on Australia’s very concentrated, conservative and often trivial media.
“The role of the media is huge,” she says. “During my term as president we tried to draw the media into much of what we were doing, figuring they would play such a significant role in educating the public.”
What she found, though, was hostility to the human rights agenda in large sections of the media, and “disinterest in other parts”.
Which brings us to the two defining issues of Triggs’s time at the Human Rights Commission: section 18c of the Racial Discrimination Act and the treatment of asylum seekers.
The brief history of the first is that the Institute of Public Affairs, a right-wing think tank and long a powerful influence on Coalition thought, compiled a wishlist of “radical ideas” for the incoming Abbott government. Two things it advocated were the abolition of the Human Rights Commission and repeal of section 18c of the Racial Discrimination Act.
The first was never going to happen, despite Abbott’s enthusiasm for it. The second, 18c, which as George Brandis memorably noted impinged on people’s right to express bigotry, also failed, despite a three-year campaign led by the government and The Australian newspaper. The attacks focused heavily on Triggs personally, despite the fact that any failings in the application of 18c resulted from shortcomings in the statutory provisions of the act. Minor changes have cleaned up those.
The other major controversy, over the treatment of asylum seekers, can be traced to Triggs’s decision in February 2014 to launch an inquiry into children in closed immigration detention.
“The Forgotten Children” report, given to government in November that year and tabled in February 2015, catalogued the serious mental and emotional harm done in immigration detention.
But it was the timing of the report, rather than its substance, on which the government and its media barrackers focused. As one of them summarised the argument in a recent piece celebrating Triggs’s departure:
“Triggs refused to hold an inquiry into children in detention while Labor was in power and filling our detention centres, but held one when the Liberals came into power and emptied them.”
Leaving aside the fact the Liberals have still not “emptied” the detention centres of children, there is something to the criticism. There is a strong argument to be made that she should have initiated the inquiry earlier.
Triggs’s counterargument is that her concern was not the fact of detaining children and their families, but the length of time they were detained. She denied any element of partisanship, but the timing, and some loose and inaccurate answers she gave during many hours of hostile questioning by a senate committee, were seized upon to obfuscate the real issue: Australia’s poor treatment of asylum seekers in general and children in particular.
And that obfuscation continues still. Triggs points to recent leaked transcripts of the conversation between Prime Minister Malcolm Turnbull and United States President Donald Trump about plans to move up to 1250 refugees from offshore detention to the US.
The transcripts show “a wholly cynical exercise on Mr Turnbull’s part”, she says.
“He said, ‘All you’ve got to do is be seen to assess them’. It diminishes the entire exercise. In the meantime, these people languish. Including 43 children on Nauru.”
It is cruelty unjustifiable in any but political terms, she says. “The point I’ve made over and over again, as have lawyers working in the refugee advocacy area, is that there is no evidence whatever that holding people indefinitely without charge or trial, whether in Australia or on Manus and Nauru, is having any impact on people smuggling.
“This single thing that appears to have been hugely effective is the billions of dollars spent on military force to prevent those boats from coming into Australian waters. The reality is that it’s the military force that’s stopping the boats.
“In that sense, we’ve solved the immediate problem, even if we’ve created a longer-term one with our neighbours, diplomatically, by shunting these people back onto them. I’d hoped the government would say ... now we’ve stopped the numbers arriving ... we can exercise a more humane approach to those who are left behind.”
It would not seem an unreasonable hope, given the historical precedent. She notes that former conservative prime minister John Howard, the architect of the original Pacific Solution, eventually did just that.
Once the boats had been stopped, she says, “Howard quietly brought people back.
“Bit by bit they were integrated into the community, in those days getting permanent visas, on a path to citizenship, which most have taken.”
A 2006 report by the Australian Human Rights Commission showed that of the 1509 asylum seekers sent to Nauru by that time, 586 were granted Australian resettlement. Another 360 went to New Zealand, and 33 to other countries. A final 482 asylum seekers were deemed not to be genuine refugees and were sent home.
“So it’s doable,” says Triggs.
The difference is that Howard was more clever politically, she says, “in not making grand statements from which he couldn’t retreat”.
Nonetheless, she traces the current politics of refugee vilification back to Howard, to his realisation that fear of Muslims and terrorism could be conflated with asylum seeking, to political advantage.
“We had the Tampa crisis, and weeks after that the 9/11 attacks,” she says. “I think from that time on conservative political leaders could see the advantage of employing these events to prove they were strong leaders.
“When Mr Abbott came to power he then ran with that. We still have that legacy and I imagine it’s one Mr Turnbull struggles with. And Labor sees it as a political problem, so they don’t want any daylight, as they say, between their policies.
“I think Mr Shorten thinks he’s got enough going for him on other political issues – which he appears to have – he’s not going to try to unravel this one.”
So, Triggs is scathing of the politics played by both major parties on refugees and other human rights issues. Still, much of her term was served under the Coalition and she reserves her principal criticism for its members.
“I’m more than happy to justify the argument that we have a Coalition that is anti-human rights,” she says. “I think it’s one I can justify with all the footnotes.”
Five years’ experience as head of the commission has left her certain in the knowledge her criticisms will be met with fierce pushback. But she’s inured to it now, even if she still sounds a little surprised at her own willingness for the battle.
“I mean, I had 50 years as a practising lawyer before this job, where nobody took any notice of me at all. I wrote my books, worked for a major law firm, did my work with clients, only very occasionally went into the media, usually on territorial boundary disputes and offshore oil and gas law,” she says.
“If somebody had told me it would attract this sort of attention, I’d have said, ‘Well, I’m not taking the job.’ ”
But having taken it, she couldn’t quit under fire.
“I would have let down a staff that had done all this work, and I’d also have let down all these asylum seekers that I’ve eyeballed in detention centres, or [people] in old-age homes, or Indigenous youths in detention. I would have let these people down hugely if I were to equivocate or … take my bat and ball and go home.”
And for the same reason, she’s not quitting now. To those who called good riddance, bad luck.
This article was first published in the print edition of The Saturday Paper on Aug 12, 2017 as "Triggs’s station". Subscribe here.