Did Gillian Triggs hit a raw nerve with her report? / Malcolm Fraser

| February 5, 2015 | 0 Comments

Attacks on the Human Rights commission could be a defensive manoeuvre against what is expected to be a highly critical report on children in detention.

The president of the Australian Human Rights Commission, Gillian Triggs, is a distinguished and highly respected lawyer.

The Australian Human Rights Commission and its president, Professor Gillian Triggs, a most distinguished and highly respected lawyer, have been under significant attack from the government and some elements of the media.

In accordance with its charter, the commission undertook an Inquiry into Children in Detention early in 2014. The Attorney-General received a copy of the final report on November 11, 2014. The government must publish the report within 15 sitting days of that date. It is expected from everything we have heard about children in detention that the report will be highly critical. Are the attempts to diminish the reputation of the commission designed to make it easier for the government to ignore its report?

Because of the increase of arbitrary powers, not subject to appeal or review, that the government has granted its own ministers, the work of the commission is more necessary than it has ever been.

The expansion of the ministers’ powers, without any judicial review, without any possibility of appeal, indicates the government is not concerned about the separation of powers between the executive and the judiciary. The government is concerned to make sure the law and the courts cannot restrain it in the exercise of its harsh policies.

As Triggs pointed out in a recent speech after the G20 meeting, German Chancellor Angela Merkel spoke of the importance of the international rule of law, of democracy and human rights. The Chancellor anchored her speech on those principles.

Senator Ian Macdonald, who spoke from the chair in public hearings of the Senate Legal and Constitutional Affairs Legislation Committee, made it quite clear that, in his view, the government in its legislation was giving the Australian people what they wanted. He claimed the people of Australia had said, “We don’t care about treaties”. If Macdonald believed what he was saying, he was following some of the worst instincts of those who have led Australia on this issue.

He and his colleagues should have made it clear treaties do matter; that Australia’s reputation does matter. What he said was a total abdication of his responsibilities as a senator.

The idea that the executive government of a state is precluded from detaining a person without judicial process is not a recent invention of the United Nations or the post-World War II world – it is a guarantee of ancient times, which almost every democratic regime in the world recognises as essential to a civilised nation. Yet, in Australia, people are detained and the High Court has ruled that such detention is legal if it is regarded as for administrative purposes and not for punishment.

Many Australians believe basic human rights are enshrined in our constitution. That is not so. The constitution defines a division of power, between Australia and the Australian states, as approved by the British Parliament. The common law is no longer a protection of human rights. The High Court has ruled that the Federal Parliament can override any such right.

While the breach in human rights applies to asylum seekers, and especially to the administration of the security services, the greatest breach of those common law rights under the current situation applies to people in immigration detention. There are more than 2500 asylum seekers on the mainland, all in detention. This includes more than 400 children. We are the only nation in the world that demands the arbitrary detention of children and their families on their arrival. We do so indefinitely for periods exceeding a year and sometimes for several years. Compare that with Britain, where asylum seekers must be released after 72 hours.

As a result of recent amendments to the Migration and Maritime Powers Act, some children were to be released from detention facilities into the community and work rights were to be available to their parents on bridging visas. I am advised some of those children are still in detention in Darwin and the minister’s promise has not yet been kept.

The new legislation exempts government officials from the need to abide by Australia’s obligations under international law. It ensures due process or natural justice cannot be given as reasons for invalidity of particular actions. Breach of international law on the high seas is sanctioned.

The government has also regarded as “irrelevant” its international obligation not to return refugees to a country in which there is a high chance they will be tortured. Such an attitude makes Australia party to any subsequent torture, complicit in it, and guilty of it. The international definition of refugee no longer applies under Australian law; it is much narrower and relieves the government of obligations that earlier would have been willingly accepted. Children born in Australia are to be treated like their parents, regarded as illegal maritime arrivals.

So, many years of development of administrative law and international law are wiped out by this government and the Australian Parliament.

The government has also further extended the Australian Security Intelligence Organisation’s powers curtailing basic rights and freedoms Australians have too easily taken for granted. It is consistent with the government’s clear wish to place its actions outside the rule of law.

These actions make the Australian Human Rights Commission even more important to safeguard remaining freedoms and to prevent a full introduction of a police state. Even so, the powers available to the government and to security authorities in Australia would rest more comfortably with old-fashioned tyrannies from Europe than with any democracy in the 21st century.

Triggs has been following the law designed to govern the actions of the commission with care and with integrity. The commission has not transgressed into areas of government discretion, but, as required under the law, has made recommendations, which the government can accept, or reject.

So many countries in the world have bills or charters of rights. New Zealand, Britain, Europe, Canada and the United States all have provisions in their constitutions or in separate legislation. It is because Australia is a standalone without such protections that we need to be so concerned about the future.

* Malcolm Fraser was prime minister from 1975 to 1983.

Source; SMH

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