George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

In this case I say quite unashamedly and candidly, for the reasons I have explained, I and the government have lost confidence in Professor Triggs. The public are entitled to know that; the public are entitled to know the reasons for that. I have given an account of those reasons. To say that is not to attack her character or to be a bullyboy; it is merely to explain the reasons why a particular conclusion has been reached. Were I to do otherwise I would be misleading the parliament, Senator. If I were asked: 'Do you have confidence in Professor Triggs as President of the Human Rights Commission?' and I answered, 'Yes, I do,' that would not be the truth.

The consequence of what the opposition maintains, whether it be shrilly by Senator Wong or in a more measured way by Senator Moore, is that the Australian Human Rights Commission should be beyond scrutiny—that the same principles should apply to it as apply to a court. Senator Wong quoted from Professor Ben Saul, who said words to the effect that the Human Rights Commission and the President of the Human Rights Commission are as close as you can get to a court and it is a shameful thing to criticise them. That was not the principle Ben Saul adopted when, on 19 December 2013, he himself attacked the Human Rights Commissioner, Mr Tim Wilson—the second most senior official of the Human Rights Commission. He described him as somebody who should never have been appointed, and he described his appointment as turning the Human Rights Commission into 'the lapdog of an ideologically obsessed government too determined to protect its privileged mates.' In an article in the Fairfax media by Deborah Snow on 21 December, Professor Saul said of the Human Rights Commissioner:

He has no serious background in human rights, either by working in a human rights organisation or by having any relevant qualifications in the area.

Nor was it a principle observed by the shadow Attorney-General, Mr Dreyfus, or by the Greens legal affairs spokesman, Senator Penny Wright, when they both attacked the Human Rights Commissioner as well.

What is sauce for the goose is sauce for the gander. If it is a matter of disgrace to attack the President of the Human Rights Commission, why is it not a matter of disgrace to attack the second-ranking office-bearer of the Human Rights Commission, the Human Rights Commissioner?

It demonstrates the hypocrisy.

But there is a deeper issue at play here. If Senator Wong, Senator Moore and Senator Milne are right, then the Human Rights Commission is beyond scrutiny. And that cannot be so. The Human Rights Commission is not a court. The principles governing contempt of court do not apply to it. The Human Rights Commission by its very nature is a body that must deal in controversial contemporary public affairs; and, in dealing with controversial contemporary public affairs, it should never be above criticism. No institution of the executive government should be beyond criticism and beyond scrutiny—not the ministry, not the Public Service, not agencies within the executive government.

This construct is based on the idea that the Human Rights Commission is like a court, which is what Professor Saul says, in evident ignorance of the definitive statement of its function by the High Court in 1995. In 1995, in a case called Brandy v Human Rights and Equal Opportunity Commission. This is what the court unanimously said: 'The commission is not constituted as a court in accordance with the requirements of chapter III of the Constitution. It cannot therefore exercise the judicial powers of the Commonwealth.' Senator Wong treats this as me trying to be clever. I am merely trying to explain to her and her colleagues an elementary constitutional principle that an agency of the executive government is not a court and its members are not entitled to the protections from public scrutiny that judges quite properly are.

If it were to follow from what Senator Moore—

Senator Jacinta Collins interjecting—

If Senator Wong is right, there could be no criticism of, for example, ASIC; there could be no criticism of the ACCC; there could be no criticism of the Auditor-General; there could be no criticism of the financial regulators; there could be no criticism of the leadership of any quasi-independent statutory agency. I use the term 'quasi-independent' because it is plain from the Human Rights Commission Act that it is not—contrary to what Senator Moore has had to say—absolutely independent.

This parliament should be a guardian, a fierce guardian, of its rights to call members of the executive and the agencies of the executive government to account. And, when the government loses confidence in the leader of one particular agency, the parliament and the public are entitled to know why; they are entitled to ask searching questions of me—which they were afraid to do—and they are entitled to ask searching questions of Professor Triggs.