Exclusive interview: the president of the HRC speaks about how the Coalition ‘doesn’t understand’ the commission’s role, the Australian’s campaign against her and her resolve to take the HRC further into the mainstream

Gillian Triggs has hit back at critics in the government and the media, accusing Coalition politicians of “profoundly” misunderstanding the role of the Human Rights Commission, and the Australian newspaper of running a concerted campaign to achieve the commission’s abolition.



In an interview with Guardian Australia, Triggs also called for the Coalition senator Ian Macdonald to explain the “badgering” and “belligerent” nature of questions to the commission in the Senate committee he chairs and revealed a new direction for the commission’s future work.



Ongoing tensions between the commission and the government came to a dramatic head in February when Triggs said the attorney general, George Brandis, sought her resignation as its president and Tony Abbott said the government had “lost confidence” in her. The prime minister also labelled the commission’s report on children in immigration detention a “blatantly political, partisan exercise” and a “political stitch-up”.

Gillian Triggs: the Australian's latest victim Read more

After eight hours of questioning at a Senate estimates inquiry in February, Triggs and the commission were called back last Friday for a further three hours. Questioning returned to a commission report brought down last June on the case of John Basikbasik, a West Papuan activist and refugee who served seven years in jail for the manslaughter of his partner, who was reportedly pregnant at the time. Basikbasik has been held in detention for a further eight years because he cannot be sent back to Indonesia, but is considered a risk to the community.



Abbott said the commission’s ruling that Basikbasik “be released” was “pretty bizarre” and demonstrated “extremely questionable judgment”. The social security minister, Scott Morrison, said this week the decision was “absolute nonsense”. The immigration minister, Peter Dutton, said suggestions that “wife killers should be released back into the community with a cheque from the taxpayer are so far removed from the public view, it is just offensive”.



‘We didn’t say Basikbasik should be released’

The commission report found “the failure of the minister to place Mr Basikbasik into community detention or another less restrictive form of detention (if necessary, with conditions) was inconsistent with the prohibition on arbitrary detention in article 9(1) of the International Covenant on Civil and Political Rights”.



But Triggs told Guardian Australia the basis of this finding was not that Basikbasik should be released, but rather that he was being detained without any regular review.

“We did not find that Basikbasik should be released into community detention,” she said.

“If Basikbasik were to be held forever on the basis that he is a dangerous man, we would not object to that so long as there were regular and independent reviews of his situation.



“We had to determine if the detention was proportionate to the legitimate aim of protecting the community. If alternative types of detention had been at least considered by the minister and then rejected on reasonable grounds, it might have met the test of proportionality.



“But if the minister has not put his mind to it at all, or allowed any review, then the detention becomes arbitrary under international law.”



“I do not think the government is responding to the report on the basis of any understanding of the statutory authority the commission has under legislation. They ignore the reality that no democratic government can hold a person indefinitely without some form of independent and regular review.



“... the key word is arbitrary, which means to hold without regular review, without access to the courts”.



She said the government could have appealed against her report, but had not. It had also ignored the recommendation regarding compensation, which governments almost always did.



Senator Ian Macdonald ‘has another agenda’





At the February hearing of the legal and constitutional affairs committee, which was primarily about the children in detention report, Macdonald, the chairman, said: “I haven’t bothered to read the final report because I think it is partisan.”

He told Sky news at the time this was because “I’ve got better things to read ... I don’t waste my time reading documents that I am going to take no notice of because, as I said a year ago, I thought the enquiry was partisan, so naturally the report would be and I have to say from bits and pieces that have come up in the last couple of days, that’s been an accurate expectation.”



Triggs called on Macdonald to explain himself.



“He needs to explain himself. He needs to explain his role. He needs to answer why he allows the level of badgering at committee hearings, the length of the hearings and the belligerent nature of the questioning,” she said.



“... it seems they are searching for anything that they can find to damage the commission and me. [Macdonald] consistently allows the senators’ questions to be oriented towards attacking the commission.”



And she said the most recent estimates committee hearing “appears to have been set up exclusively to attack us” with other agencies told at the last minute that they would not be required to give evidence.



“There is obviously another agenda here other than the normal role of estimates, which is to make good-faith enquiries into how we manage our budget.”



‘Failure to understand’ the commission’s role

“There has been a genuine and profound failure to understand that our mandate is in international law and that ministers are implementing domestic law,” Triggs said.

However, she excluded Brandis from this criticism, saying she had had “rational discussions” with the attorney general.

“He has taken a reasonable and lawyerly approach that we should have a stronger emphasis on fundamental human rights, freedom of speech for example, but we both know that the Coalition would never agree to legislation which would give effect to those rights because that would come close to a bill of rights.”



The issue of arbitrary detention, central to the Basikbasik case, is also the reason for other adverse findings by the commission, including in a recent report about two intellectually and cognitively disabled Aboriginal men who were unfit to plead, but held in prison for four and six years.



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Taking the commission further into the public arena

Triggs said she did want to concentrate more on “mainstream issues”, for example employment discrimination.

“I think we have to work more in the public arena to demonstrate to thinking Australians that we are working for everyone and to move our work more into mainstream issues like employment discrimination.



“There are a growing number of complaints about pregnancy discrimination, for example, many more than I would have imagined when we began our research. And there are older men who are discriminated against by employers because of their age.



“If we can work with employers and encourage different attitudes in the community it would help national productivity – there is a powerful business case for this.”



The Australian

“There has been a concerted campaign by the Australian to demand my resignation and the abolition of the Human Rights Commission for years.



“It is a very clear campaign by that newspaper and it has been leaping on anything that could be used to try to attract negative public attention. They have been very willing to distort the facts to continue their campaign and that campaign has been picked up by some ministers and some members of parliament.”



The Australian declined to respond to Triggs’s comments.



Macdonald said he was “disappointed with Triggs’s partisan approach” and that the committee had not taken evidence from other agencies last Friday because it was clear it would run out of time to do so after senators had finished questioning the commission.



Triggs said she had no intention to resign from her post, despite the government’s criticism.

