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George Brandis has fundamentally failed to do his job

Speeches in Parliament
Penny Wright 2 Mar 2015

Senator WRIGHT (South Australia) (12:39):  I stand to support this censure motion against the Attorney-General because the Attorney-General has fundamentally failed to do his job while standing by and then ultimately attacking the President of the Human Rights Commission, Professor Gillian Triggs, for doing her job so well.

One of the most important aspects of the job of any Attorney-General in Australia is to uphold the rule of law. It is to defend the judiciary, to defend independent statutory office holders like Professor Triggs and the commissioners of the Human Rights Commission, and not to actively undermine the confidence of the Australian public in our legal institutions. They are the institutions in our system that ensure that there are checks and balances on power, and we all undermine them at our own peril. It is absolutely crucial that we have a principled officer in the position of the Attorney-General to uphold the rule of law.

'Rule of law' is a term that is thrown around a lot. Just for those who are listening who may not be quite clear on what it is, it basically says that in Australia, as in all democracies, we will have a rules-based system of dispensing power and acting on power so that we are not subject merely to the arbitrary decisions of government. We have laws. We have laws that are open and transparent. We can know what they are; we can find out what they are. Those laws will be applied fairly and without fear or favour, no matter how powerless a person within the society may be. The alternative to a strong rule of law is to have arbitrary decision making and power exercised by the powerful and governments.

I went to the Attorney-General's Department website to understand a little more about the role of the Attorney-General's Department and the Attorney-General as foremost law officer in the land. The department say that their primary responsibility is to support the Australian government 'in protecting and promoting the rule of law'. They note-quite accurately, I think:

The rule of law underpins the way Australian society is governed. Everyone-including citizens and the government-is bound by and entitled to the benefit of laws.

The department's website says:

We support the Australian Government in being accountable for actions, making rational decisions and protecting human rights.

I say: good luck with that, Department, if you have a foremost law officer who is clearly seen not to uphold and respect those very principles. The department's website also says:

We advance the rule of law internationally by actively promoting adherence to the global rules-based system and helping to build effective governance and stability in our region.

That global rules-based system is otherwise known as international law, yet we have seen a government that, since coming into office, has set about almost systematically downgrading Australia's respect for international law principles. I will come back to that.

Instead of upholding the rule of law and these crucial institutions in Australian society that ensure that there will be checks and balances on power-defending the judiciary and defending independent statutory office holders like Professor Triggs and the commissioners of the Human Rights Commission-this Attorney-General has initially stood by and allowed ministers, including the Prime Minister, of his government to attack them. Not only has he been gutlessly standing by-one can only assume complicit in that-but he has actually now come out and attacked them himself. Of course, now we know from the infamous estimates hearing that I was unfortunate enough, perhaps, to have to witness for a period of a day last week that he has come dangerously close to breaching the Criminal Code by directing his department secretary to offer Professor Triggs another position in exchange for her resignation.

The Australian Greens say that, if anyone is going to resign over the Human Rights Commission's report into the treatment of children in detention, it should be the Attorney-General, Senator George Brandis, and not Professor Triggs. From the evidence we already have, it is apparent that the Attorney-General put undue pressure on an independent office holder to resign simply because he did not like what she was saying-simply because she was doing her job and she was doing it too well. It is interesting-ironic, rather-to hear Senator Reynolds talking about playing the man.

It is this government which has sought to actively play the man-or play the women, in this case-in allowing relentless attacks on the President of the Human Rights Commission. This is a matter of shooting the messenger.

The President of the Human Rights Commission in Australia is appointed for a five-year term specifically to avoid political interference. In fact, under the law, commissioners can only be removed on grounds of misbehaviour or physical or mental incapacity. I specifically asked the Attorney-General in estimates last week: was he aware of any breaches of the Australian Human Rights Commission Act or any errors of law on the part of Professor Triggs or the Human Rights Commission that would give grounds for concern and that would give grounds to remove the president from her position? He responded, 'No,' but he also, tellingly, went on to respond that Professor Triggs was guilty of 'a terrible error of judgement'. He later upped the ante even more and described the error of judgement on the part of Professor Triggs as 'a catastrophic error of judgement'.

It is very, very clear that the error of judgement alleged to have been committed by the President of the Australian Human Rights Commission was that she did not take seriously enough the willingness of this Attorney-General and this government to get rid of her if she insisted on doing her job properly and making sure that the Australian public is aware of the situation of children in detention, a situation that has been an ongoing under the previous government and this government. For anyone who has taken the trouble to actually read the report, it is absolutely clear that it is written in a non-partisan way. Throughout, it attributes responsibility for the situation that we have with children in detention to both the previous government and this government. Only a government which is intent on shooting the messenger would try to suggest that this is a partisan report.

I witnessed the first barbaric, badgering, intimidatory questioning that occurred of Professor Triggs at estimates last year, and then I witnessed the session last week. What I saw was a woman of absolute principle who, I think, probably never really imagined that a person in her position, who has such a sense of propriety and such a strong reputation as a fearless lawyer, would be besmirched so politically. She probably has a lot of reckoning to come to now to understand that, in this country in 2015, we have a government that is willing to rip her down, destroy her, ignore the principle and ignore the report that she has provided to government, which is substantiated by objective witnesses who attended the immigration detention centres and saw the plight of those children. She would have had no expectation of this attack because she has in fact conducted herself in such a proper and blameless way. I think it must have taken her completely by surprise to see the attack that she was going to be under for this report. In the end, Professor Triggs has done nothing worse than embarrass an acutely sensitive and vengeful government-nothing worse than do her job to put people before politics; nothing worse than that.

The Human Rights Commission is an independent statutory body. It is designed to be separate from government and to keep an eye on government-every government, irrespective of its complexion. Part of its job description is to inquire into any act or practice that may be inconsistent with or contrary to any human right. That inevitably means saying things a government, any government, may well not want to hear. It is an effective and efficient complaints resolution body. In 2012-13, the Human Rights Commission assisted over 17,000 people and organisations and is recognised internationally as an A-status national human rights institution. It is an institution of which Australia can be justifiably proud on the world stage.

The Human Rights Commission in Australia gives voice to otherwise voiceless and most vulnerable members of our society. It stands up for disadvantaged groups in our community. It stands up for people like the homeless, the mentally ill, Indigenous people, people with disabilities and children in detention. A case in point is the Forgotten children report, which revealed institutionalised child abuse by governments in Australia. It exposed sexual, physical and psychological abuse as a result of the Australian government's indefinite detention policies. That it reveals the shocking human rights abuses that are part of Australia's immigration policy is not a biased or partisan thing to do. The Labor and Liberal parties have an almost identical position when it comes to the treatment and detention of asylum seekers, and the commission's report-if anyone takes the time to actually read it-makes it very clear that the current government and the government before it are complicit in this abuse.

Human rights and legal organisations, including the Australian Bar Association, the Law Council of Australia, the United Nations and other international human rights bodies, have come forward to defend the Australian Human Rights Commission and its president from these unprecedented attacks by this government and by the Attorney-General. Law experts have warned that these attacks jeopardise our democratic system. The Australian Bar Association in January of this year expressed concerns that governments risk undermining public confidence in the independent courts, tribunals and commissions which protect and uphold the rule of law in Australia. Indeed, it is interesting to see that the chair of the Australian Bar Association, Mr Mark Livesey QC, stated-and this goes to the crux of this debate:

It is not the role of the Commission-or a court-to decide how odious-or worthy-a person is and then to apply the law on that basis. The proper role of any court, tribunal or commission is to apply the law objectively and impartially.

That is why the Human Rights Commission being able to perform its functions fairly and fearlessly is absolutely crucial for all of us-for any of us-because we all have human rights that might need a champion one day.

We have the joint statement of the Law Council and the Australian Bar Association in February of this year:

The attacks on Professor Gillian Triggs and the Australian Human Rights Commission following the release of the Report "The Forgotten Children", are alarming ...

That was signed by Fiona McLeod, senior counsel and President of the Australian Bar Association, and Mr Duncan McConnel, President of the Law Council.

They point out that Professor Triggs has a distinguished career in law and is highly respected.

As well as that, we have legal academics stepping up from all over Australia to support the role of Professor Triggs, her character, her work and the role of the Australian Human Rights Commission. We had a letter that was signed by 25 Australian legal academics. Interestingly, they chose to send that letter to The Australian newspaper, which has been at the forefront of these attacks on Professor Triggs. In the interests of transparency, openness and genuine debate in Australian society, did The Australian newspaper published that letter? No they did not.

We also have the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, which is the United Nations global umbrella body for such institutions, writing a strongly worded letter to the Prime Minister of Australia, expressing their deep concern that these attacks seek to call into question the independence of the office which Professor Triggs holds and cause harm to her professional integrity. That letter also points out:

It furthermore undermines and intimidates the statutorily granted independence that is provided to the AHRC as the country's principal human rights body.

The letter points out:

In a healthy democracy, a NHRI report-

Such as the report from the Australian Human Rights Commission into the forgotten children-

should be received within the spirit that the contents and recommendations contained therein are to further the adherence to international human rights norms and standards and ensure the promotion and protection of human rights.

It is a frightening thing when our government believes it can attack the very institutions that are designed to hold it to account. That is why we must show our censure. We must take action when we have the foremost law officer of the land being privy to and a part of those attacks.

There are various other attacks that have occurred against the Human Rights Commission in Australia. They start with the cuts to the funding of the Human Rights Commission-a 30 per cent funding cut in December of last year. And then we had a series of attacks by government-by the Prime Minister and by other ministers-in relation to a report which has been mentioned earlier today, the Basikbasik report by the Human Rights Commission.

So we had the Prime Minister ruling that the decision and the judgement of the president of the Human Rights Commission, Professor Triggs, was pretty bizarre, showing extremely questionable judgement. Was that on the basis of her legal judgement? No, it was not. It was actually her political judgement, because she was not being populist and she was not sufficiently taking into account the concerns expressed by the government of the day; she was doing her job.

As I said earlier, Mark Livesey, of the Australian Bar Association, said it is not the role of the commission or a court to decide how odious or worthy a person is. A person in Australia has human rights and has a right to have those human rights upheld. If we start to pick and choose as to who is worthy of having human rights-indivisible, universal human rights-we are running down a very risky, slippery slide.

This is part of a broader pattern. Let us not forget this: this is part of a broader pattern by this particular government, which includes funding cuts to legal services and allowing gag clauses against advocacy being inserted into contracts with non-government organisations. These cuts and these gag clauses are sending a very clear message that organisations that advocate and which stand up for the most vulnerable against the most powerful are at risk.

The thing about human rights is that we all have them. One day any one of us may need a champion who is willing to stand up against a government-a powerful government-and its powerful backers and defend us. That is the role of organisations like the Australian Human Rights Commission and that is the role of someone like the president of the AHRC, Professor Triggs. The personal, derogatory and unsubstantiated attacks by the Abbott government on the president of the commission risk causing harm not just to her professional reputation-although the number of people lining up to support her and to show the high esteem in which she is held will probably mitigate against that-but actually risk causing irreparable harm to Australia's public confidence in the commission and the vital services it provides. Ultimately, it risks causing harm to our democracy itself.

The Attorney-General has said himself that the ongoing relationship between him and the President of the Australian Human Rights Commission is untenable. If someone has to go, then, it should be the person who has not been doing their job. It should be the Attorney-General-not Professor Triggs, who has been doing her job in an exemplary manner.

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