Nick Xenophon (SA, Independent) Share this | Hansard source

Can I just put some matters into context? Firstly, in relation to the Human Rights Commission report in respect of children in detention: the Human Rights Commission did call for a royal commission into children in detention. I think that call is warranted. The terms of reference are a matter for the government of the day. I would urge the government to seriously consider what the Human Rights Commission has set out in a very comprehensive report.

There may be criticisms that have been traversed by members of the government as to whether the commission should have taken a greater role, or a more prominent role, in respect of these matters. I think Senator Collins has made the point that these are matters that were traversed by the commission both during the term of this government and in the term of the previous government. But there are some in the coalition that raise the point that the particular emphasis, or the criticisms, of the government seem to be more trenchant than for the previous government. I think there ought to be a royal commission, and perhaps the terms of reference could look, if there were such a royal commission, at whether there was an appropriate emphasis on children in detention under the previous government by the commission as well.

I also want to reflect on the comments made by the communications minister, the Hon. Malcolm Turnbull, last week at a doorstop, where he made the point in the broader context in relation to Professor Triggs:

When the Labor Party won office in 2007 there were no children in detention because of the Howard Government's successful management of our borders. There were no boats, there was no people smuggling, and so there were no kids in detention.

As you know, Kevin Rudd changed the policy, there was a massive increase in people smuggling, a massive increase in unauthorised arrivals, and we had a peak of 2000 kids in detention and at the time that we came into government, when Labor was voted out in 2013, there were about 1,400 children in detention. That number, in terms of children onshore is 126 and as you know from what Mike Pazullo said in estimates this week that is rapidly coming down.

I agree with Malcolm Turnbull when he says:

So the bottom line is this: any child in detention, one child in detention is one child too many. You know, this is not -- everyone is anguished by having children locked up in detention. We don't want to have any children in detention. The best way for children not to be in detention of course is for them not to get on to people smugglers' boats. And of course we've effectively ensured that by stopping the boats, by Scott Morrison stopping the boats.

Those are Malcolm Turnbull's comments. I think there is some real merit in those. So that gives it context.

The Attorney-General is right to say that the Human Rights Commission is not a court as such. It may well have quasi-judicial powers and it may look like a court in the way it functions, but the High Court's decision in Brandy v Human Rights and Equal Opportunity Commissionsome 20 years ago made it clear that the commission is not constituted as a court in accordance with the requirements in chapter 3 of the Constitution, so for the Leader of the Opposition in the other place to claim last week that any criticism by the government was an attack on the separation of powers is actually incorrect.

I also respect the Attorney's right to express his brutally frank assessment that he does not have confidence in the President of the Human Rights Commission. I do not believe the Attorney has engaged in malicious attacks on the president of the commission, but I believe others have. I also query whether the Prime Minister's statements in the chamber last week overstepped the mark. They certainly went beyond any statements made by the Attorney. I certainly believe others in the community have engaged in attacks that appear to be malicious against the President of the Human Rights Commission. For that reason, I believe the Attorney ought to have defended Professor Triggs against those malicious attacks.

Having said that, I too have criticised the president of the commission on the Basikbasik matter. It was traversed by Senator Abetz. I have publicly criticised Professor Triggs for what seemed to raise serious questions of a lapse of judgement in that matter. I should note that the commission provided to my office, politely and comprehensively, an explanation of the president's position, for which I am grateful. I respect that but still consider an error was made by the President, but that does not mean, however, that it in any way justifies that she should resign. There is a fine line sometimes between criticism and malicious attacks. I do not believe the Attorney has engaged in the latter, but he has not defended the president of the commission in relation to those attacks, so I support the first part of the motion.

On the second part of the motion—the evidence of Professor Triggs at estimates that there was no doubt in her mind of the offer of an alternative position and the pressure to resign—I believe Professor Triggs and I note the comments that Malcolm Turnbull made about her: a distinguished legal academic, someone whom I believe is a person of integrity. I have no reason not to accept what she said in estimates. I think any such approach was unfortunate and, in the circumstances, inappropriate, but that should not in any way imply that it was in any way unlawful.

In relation to paragraph 3, I listened very carefully to the Attorney's contribution. I believe he did answer questions in estimates on this, but I respectfully suggest it was not necessarily a full account. I am not suggesting he was evasive as such, although I believe his contribution today did give a fuller account, although there are unanswered questions in respect of this whole issue.

In relation to paragraph 4, it follows that if you accept paragraph 1, it could be argued that this could be seen to be undermining Australia's commitment to uphold human rights. I believe this is something that can be remedied by the government and the Attorney in particular by repudiating those malicious attacks on the President of the Human Rights Commission to draw that very clear line.

But I cannot support paragraph 5, which asserts that the Attorney is unfit to hold the office of Attorney-General. It is, respectfully to the opposition, in my view overreaching. To suggest the Attorney is unfit to hold his position as the first law officer of the Commonwealth carries with it connotations that go beyond the effect of such a claim against any other minister. In the legal context, unfitness does imply—for a judicial officer, for instance—all sorts of connotations. You can criticise the Attorney for his conduct on a particular part of his portfolio, but it does not follow that he is unfit to hold that office and that by implication he should resign. I believe a minister is unfit to hold office if he or she is grossly incompetent, corrupt, exercising powers maliciously or guilty of malfeasance in the exercise of his or her duties. It is of that order where unfitness applies in my view and, particularly in the context of the first law officer of the Commonwealth, I believe there is a high standard.

The Attorney's conduct, his explanation to the chamber today and indeed his answers to estimates I do not think approach any of those criteria of unfitness to hold office. I believe he has erred significantly in the handling of this issue. He has argued his case passionately this morning, but notwithstanding that I still have to disagree with the approach he has taken.

So I can find myself supporting the first four parts of the motion but not the last part. If it is in an amended form, I will support the first four parts, but I understand that the will of the Senate could be to support the motion as a whole. With some irony, I believe this motion overreaches in the same way the government has overreached in its criticisms of and attacks on Professor Triggs.