TRIGGS WARN­ING

Gil­lian Triggs on Aus­tralia’s human rights dis­graces

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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 an­tiprotest 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.

“I’M MORE THAN HAPPY TO JUS­TIFY THE AR­GU­MENT THAT WE HAVE A COALI­TION THAT IS ANTI-HUMAN RIGHTS. I THINK IT’S ONE I CAN JUS­TIFY WITH ALL THE FOOT­NOTES.”

MIKE SEC­COMBE is The Satur­day Pa­per’s na­tional cor­re­spon­dent.

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