Opinion

Paul Bongiorno
Dutton and Coalition wag the human rights watchdog

Governments never like to get bad news. In that, the Abbott government is no different to any of its predecessors. It excels in the old political sport of shooting the messenger. But it is one thing to target and even bully sections of the media; it is another altogether to undermine the safeguards and liberties that Australia rejoices in as a free nation.

A stark case in point is the unrelenting and vicious attacks on the president of the Human Rights Commission, Gillian Triggs. Her initial crime was holding off an inquiry into the treatment of children in detention until after the September 2013 federal election. Even mild-mannered Liberals believe her failure to begin the investigation soon after the Gillard government appointed her in July 2012 betrays a Labor bias. They, like Prime Minister Tony Abbott, point out that the number of children in detention reached its peak of 2000 under the previous government. There has been a steady decline since, to about 200, although some suspect the incoming government sat on the commission’s report while the then minister, Scott Morrison, expedited the extraction of juveniles from behind the wire.

But even if we concede the delay missed the peak, the commission’s report certainly documented the abuse and the cruelty. Mistreatment of 200 children is still deplorable. Shooting the messenger on partisan grounds completely misses the point. Indeed, a former human rights commissioner still heavily involved in the United Nations sees a more sinister motive in the targeting of Triggs. Brian Burdekin, now Geneva-based, told the ABC the prime minister is “presiding over – if not orchestrating – a campaign to denigrate – if not destroy – the independent rights watchdog”.

Burdekin was for eight years our first human rights supremo. In that role he attracted high-level political fire himself. He says he did not buckle because that would have undermined and weakened the prestige of the commission. Any subsequent appointment would be seen as a “patsy” of the incumbent government. This would inevitably lead to Soviet-style window dressing: comfortable for the executive government and extremely discomforting for citizens. It would rob Australians of any confidence they could have in redressing abuse of government power. 

The Burdekin critique may itself be dismissed as partisan. He, like Triggs, was a Labor government appointment. But the concerns he expresses cannot be so glibly dismissed. All sides of politics have seen the need in this country to set up independent statutory watchdogs over corruption, human rights and elections. It was the Greiner Liberal government in New South Wales that was a pathfinder, setting up the Independent Commission Against Corruption. It soon found that tawdry behaviour crossed political party lines. And that members of the executive government can be tempted to abuse their positions and power.

Ideally, in the Westminster tradition, we have the separation of powers. This arrangement is rooted in the Magna Carta, guaranteeing the rule of law applies even to the legislators. To make that happen we have an independent judiciary that applies the laws according to rules of evidence in the name of justice. It’s all about guaranteeing freedom. But as Burdekin says, in the past 40 years the traditional checks and balances have been found wanting. His work has been helping 70 countries establish human rights bodies such as Australia’s.

A critical function, enshrined in the constituting legislation for our Human Rights Commission, is to shine a light on dark places. The president and her commissioners are required to enter the public marketplace with a torch and a megaphone. It is generally agreed only those who have something to hide prefer silence and the dark. So it’s not surprising that one of the most strident critics of Triggs is Immigration Minister Peter Dutton. Following the template of his predecessor, the ruthlessly efficient Scott Morrison, he shrouds everything he does in “operational” secrecy. North Korea couldn’t do it better.

The secrecy, for example, cloaks just how many infringements of Indonesian sovereign waters our navy has made as it “tows back the boats when it’s safe to do so”. We are told the Indonesians privately applaud the tactic because it discourages the people smugglers in Java. Jakarta, on the record, takes no such position. So when Triggs wandered into this space, she was hit with a Dutton sledgehammer. In a speech she asked, “Have we thought about what the consequences are of pushing people back to our neighbour, Indonesia?” She then went on to say, “Is it any wonder that Indonesia will not engage with us on other issues that we care about, like the death penalty?” Dutton slammed the observation as an “outrageous slur” and said she should front the cameras and withdraw. Adding to the pathos of his call, he accused Triggs of being insensitive to the families of executed drug smugglers Andrew Chan and Myuran Sukumaran. At the none-too-gentle prompting of Channel Ten’s Andrew Bolt, he suggested she should consider her position and quit, because she is partisan.

Brian Burdekin rushed to her defence. He revealed that the Australian Human Rights Commission has been working on the Indonesian government for the past 23 years to end the death penalty, engaging its counterpart commission in Jakarta. Rather than being insensitive to the dead men’s families, she has been furthering the cause they feel so passionately about.

During the week Triggs, or at least the concerns she has been raising about the Abbott government wanting to ride roughshod over due process, found some powerful allies. Former Howard government immigration minister and cabinet member Amanda Vanstone brought out a bazooka and fired it straight at the prime minister. She accused him of being “lazy or sneaky or both” for the way he sprang citizenship-stripping on his cabinet.

“You can imagine my profound disappointment, bordering on despair, when I see some on ‘my team’ thinking it is okay for a minister alone to take away a citizen’s rights – indeed, take away citizenship – in the blink of an eye,” she thundered in her Fairfax Media column. “No appeal, no judicial process, just a ministerial decision. What were they thinking?” 

Never a shrinking violet, Vanstone has a new theory on who was behind the leak that revealed how all this was sprung on cabinet. She says the perpetrator is “someone determined to shore up Abbott or determined to be the one that brings him down”. She concludes: “That leaves someone who wants to kill off Malcolm so he can in turn kill off Tony. Hmmm.”

In the original leak story, three ministers strongly argued for citizenship-stripping: Abbott, Dutton and Morrison. Vanstone is not the first Liberal to suspect the ambitious Morrison. The leak clearly would have damaged Malcolm Turnbull in the eyes of conservative Liberals. Dutton believes it has strengthened Abbott’s position because he is seen as “strong on security”. The corollary, “Turnbull is weak”. As we have seen, Turnbull himself suspects this was the motivation for the story getting out.

Turnbull has never joined the killing frenzy on the president of the Human Rights Commission, nor has the Abbott-appointed “freedom commissioner” Tim Wilson. That’s what the attorney-general called the former Institute of Public Affairs policy analyst when he appointed him Human Rights Commissioner under Triggs. True to Wilson’s libertarian principles, and close to Vanstone’s liberal proclivities, he is urging extreme caution. He echoed his commission colleague when he asked in a speech to the Sydney Institute “why executive government should decide whether a person’s citizenship is removed on the basis of mere suspicion of terrorism, and not the courts”. He is urging a number of issues fundamental to a free society be addressed before any proposal is passed through the parliament.

There is no doubt Abbott has made a cold calculation that voters’ sensitivities about their individual liberties pale to irrelevance compared with their fears of terrorist attack – fears the government keeps stoking lest the issue goes off the boil for them.

The prime minister’s play here is nearly right, if the Essential Poll is a guide. It finds overwhelming support for stripping dual citizen terrorists or their supporters of their Australian citizenship. The split is 81 per cent for, 9 per cent against. Stripping citizenship from people who are eligible to become a citizen somewhere else has similar support, 73-13. But – and it is a big but – more than half think the decision to strip citizenship should be made by a court of law and not a cabinet minister.

This finding could give Labor an opening. A new crime with a broader definition of sedition could meet voters’ concerns on both counts. Still tough on terrorism but not so cavalier with our freedoms. The opposition so far has denied Abbott his increasingly transparent attempts to wedge them on national security. Some in the parliamentary party think it may be time to outflank him.

That is a work in progress. If Labor caves to Abbott again, citizens, even those who seem not to care, can be grateful Gillian Triggs will not be bullied into leaving her megaphone in the cupboard.

This article was first published in the print edition of The Saturday Paper on Jun 13, 2015 as "Wagging the watchdog". Subscribe here.

Paul Bongiorno
is a columnist for The Saturday Paper and a regular commentator on ABC Radio National Breakfast.