Senate debates
Monday, 2 March 2015
Motions
Attorney-General; Censure
10:03 am
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
by leave—I move:
That the Senate censures the Attorney-General (Senator Brandis) for:
(1) failing to defend the President of the Australian Human Rights Commission, Professor Gillian Triggs, from malicious attacks;
(2) seeking to obtain—
Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source
On a point of order, Mr President: I would have thought the decent thing, with a censure motion, would have been to circulate it so that the person who is the butt of the censure motion at least has the wording of it available to enable him or her to know what they may need to be defending themselves against.
Stephen Parry (President) Share this | Link to this | Hansard source
It is always desirable to have things circulated in advance, but Senator Wong has only just commenced her opening remarks. Senator Wong, you are in order.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Thank you, Mr President. I understand the motion is being circulated. I will read it and there will be time in the debate, I am sure, for Senator Brandis to acquaint himself with these matters. I will go back to the beginning of the motion. I move:
That the Senate censures the Attorney-General (Senator Brandis) for:
(1) failing to defend the President of the Australian Human Rights Commission, Professor Gillian Triggs, from malicious attacks;
(2) seeking to obtain the resignation of Professor Triggs by facilitating the offer of an alternative role that would have required her to relinquish her position as President;
(3) refusing to fully account for his conduct when appearing before a committee of the Senate;
(4) undermining Australia's commitment to upholding human rights; and
(5) being unfit to hold the office of Attorney-General.
The opposition understands that a censure motion against a minister is no small thing, and we do not move to censure the first law officer of this nation lightly, but we are moving to censure the Attorney-General because his conduct towards the Australian Human Rights Commission has been deplorable. There is no other word for it.
This man, this Attorney, has directly attacked the independence of a senior statutory office holder within his own portfolio. He has tried to pressure the President of the Australian Human Rights Commission into resigning from her position—but not because of any wrongdoing and not because of any inappropriate action on her part or on the part of the commission. In fact, the Attorney-General has tried to pressure Professor Triggs into resigning precisely because she was doing her job—an important job in a free and democratic Australia, a society that respects human rights and the rule of law.
Fellow senators, recall that this parliament, our predecessors, legislated to establish the Australian Human Rights Commission to act as an independent body—I emphasise 'independent'—to monitor human rights in Australia. That function includes reporting, and at times criticising, governments past and present. For nearly 30 years the commission has carried out that role without fear or favour. Its actions and its public statements have not always been convenient for governments. Over the years it has criticised the policies of both Labor governments and Liberal governments. Yet never before has a government reacted to this criticism so viciously and so personally.
Government senators interjecting—
I note the interjections by both the Attorney-General and Senator Macdonald yet again fail to acknowledge that the commission's report on this occasion criticises governments of both political persuasions—criticises us as well as the coalition. But there is only one side of politics that has chosen to attack the independence of this commission. Never before has a government launched a full-frontal political assault on the integrity and standing of Australia's Human Rights Commission. Never before has an Attorney-General not only failed to defend the institution but actively joined in the attack by pressuring the president of the commission into quitting.
If one looks at the institutions, the organisations and the individuals who have criticised this Attorney, it demonstrates and brings home to all the seriousness and gravity of the errors of this Attorney-General. Back in January, we saw legal scholars come out in support of Professor Triggs—even prior to the report being tabled—given the criticisms of her which had already occurred. A range of eminent legal scholars from across the country came out to support her. We have seen—and I had never seen this before—the Attorney-General's conduct criticised by the Australian Bar Association and the Law Council of Australia. Their doing so demonstrates the concern the legal community has with the actions—and the inaction—of the first law officer of this land.
I refer also to Professor Ben Saul, professor of international law at the University of Sydney, who has been highly critical of the Attorney-General. We have seen the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, an international organisation, write an open letter to all senators and members in relation to this matter. We have seen the President of the New South Wales Bar Association, Jay Needham SC, being highly critical of the actions of the Attorney-General. In addition, Brian Burdekin, the very first Human Rights Commissioner—
Senator Brandis interjecting—
Yet again I will take the interjection from the Attorney-General, because with every interjection this man demonstrates why he is unfit to hold this office. Yet again he is engaging in a personal attack on Professor Saul and on Brian Burdekin, the first President of the Human Rights Commission of this nation. In addition Graeme Innes, the former Disability Discrimination Commissioner, has been critical of the actions of the Attorney-General. The rollcall of shame, the rollcall of those who are critical of this government and this Attorney-General, demonstrates why the Senate ought censure the Attorney-General.
The reaction of the Abbott government to the commission's report, The forgotten children, gives us an insight into the psyche of this dysfunctional government. It is a psyche permeated by bullying and by cowardice. From the bully-in-chief in the Prime Minister's office, to his lieutenant Senator Brandis and all the way through to the Senate's own Crabbe and Goyle, Senator Macdonald and Senator O'Sullivan, we see bullying behaviour and, frankly, cowardly behaviour.
The opening sentence of the Prime Minister's Statement of Ministerial Standards says:
Ministers and Parliamentary Secretaries are entrusted with the conduct of public business and must act in a manner that is consistent with the highest standards of integrity and propriety.
It goes on to say:
… it is vital that Ministers and Parliamentary Secretaries conduct themselves in a manner that will ensure public confidence in them and in the government.
In his treatment of the Human Rights Commission, the Attorney-General has not conducted himself in a manner that reflects high standards of integrity and propriety.
This Attorney-General has failed to defend the commission from political attacks, he has attacked the independence of the commission, he has tried to force the president into resigning, he has sought to procure that resignation by offering an alternative position and he has placed the secretary of his department in an invidious position. He has not only displayed a lack of integrity; he has behaved in a cowardly fashion. Most importantly, he has eroded public confidence in his approach to the position of Attorney-General and he has eroded public confidence in the government's approach to human rights—and that is why he should be censured.
I will comment briefly on the role of the Attorney-General. One should recall that the Attorney-General is not only a senior minister in the government; he is also the first law officer of the Commonwealth and has special responsibilities. He has a broad responsibility for the legal system and he has a special public interest role with the responsibility of promoting the interests of the community at large—as distinct from the narrow political interests of the government. The role also includes being the public defender of the courts and the judiciary. It should also include defending statutory agencies such as the Australian Human Rights Commission.
This Attorney runs this sophisticated legal argument—he thinks it is a very clever legal argument—that, because the commission is not technically a court, his obligation to defend its independence is not the same. I want people to pause for a moment and consider the ramifications of that. What he is saying is that those statutory bodies that this parliament creates to act as a fetter on executive power—to act as a watchdog over executive power and to comment independently on executive power—are open to political attack. I ask those senators listening to consider this. Under this argument, this Attorney-General would condone a public attack on ASIC, a public attack on the ACCC, a public attack on the Auditor-General, a public attack by the government on the Inspector-General of Intelligence and Security. Understand what this Attorney-General is saying. He is saying, 'Unless you are actually a court—even if you are a statutory body, an independent body—you are open to attack from and fair game for the bullies in the coalition.' That is not the Australia I believe in.
I believe that statutory agencies ought to be able to report without fear or favour. And there are things that the Human Rights Commission has said which I may not agree that, but I would defend their right to say it.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
What was warranted about that?
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Unlike you: you want to defend the rights of the bigots! Well, I defend their right to provide reports to this parliament and to stand up for what they consider is their remit—and so does every senator on this side.
I believe there are senators on that side who are deeply troubled—deeply troubled—by the actions of this Attorney-General. They understand that this commission carries out important functions: the promotion of human rights and Australia's observance of international human rights convention and law, as well as resolving complaints of discrimination and conducting inquiries into human rights issues. I say, and the Labor senators say, that the role of the Attorney-General should be to defend such an agency from unwarranted and politically motivated attacks.
Again, I reprise that the attacks on the president of the commission have so alarmed the legal profession that the Bar Association and the Law Council jointly issued a statement on 14 February this year, including stating that in relation to Professor Triggs:
Personal criticism directed at her or at any judicial or quasi-judicial officer fulfilling the duties of public office as required by law is an attack upon the independence and integrity of the Commission and undermines confidence in our system of justice and human rights protection.
The Law Council and the Australian Bar Association state that this:
… undermines confidence in our system of justice and human rights protection.
Senator Brandis failed to defend the commission when it came under attack from members of his own government and from the media.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I defended the commission; I criticised the president—
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Well, you can run that—he has come up with another legal argument! That is the problem with Senator Brandis: he understands words but he does not understand values. He does not understand principles. He is very good at the legalese, but he does not understand principle. The principles he is supposed to stand for, one sees him jettison them constantly when it suits his government or the political objectives of the chief bully, the Prime Minister.
I want to turn now to the pressure on the president of the Human Rights Commission to resign, because that is a disgraceful and a disturbing allegation. We know from evidence—
Honourable senators interjecting—
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
We know from evidence—and some of this is not contested—before the Senate that the Attorney-General asked the secretary of his department to advise Professor Triggs that he had lost all confidence in her.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
We also know from evidence that he asked his departmental secretary to offer this independent statutory officer—
Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source
Here he goes again!
Opposition senators interjecting—
Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source
Bjelke's boy is up at his—
Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source
Stephen Parry (President) Share this | Link to this | Hansard source
Senator Cameron! Just a moment Senator O'Sullivan.
Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source
He's not in his seat! You have to go back so you're not facing your media!
Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source
Do I have time to go to my seat, Mr President?
Opposition senators interjecting—
Stephen Parry (President) Share this | Link to this | Hansard source
We will continue with Senator Wong. It is up to you, Senator O'Sullivan, if you wish to take a point of order from your seat.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
This alternative position was not just a vague suggestion that an alternative job might be found. That, of itself, would be bad enough. This was the offer of a specific position that was so sensitive and so important that the attorney could not reveal publicly what it is.
Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source
Your statement is false!
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Professor Triggs, gave evidence to the Senate estimates last week—
Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source
Your statement is false.
Stephen Parry (President) Share this | Link to this | Hansard source
Order! Senator O'Sullivan: it is illegal—well, it should be illegal—you cannot interject in any event during the debate, but it is highly disorderly to do it not even from your own seat. I just remind all senators of that.
Opposition senators interjecting—
Order on my left!
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Professor Triggs told estimates last week that there was no doubt in her mind that the pressure to resign and the offer of an alternative position were connected.
That is what Professor Triggs told this Senate. This is the most underhanded piece of business imaginable—a heavy-handed attempt to pressure a statutory officeholder into quitting by unleashing the bullies then claiming to have no confidence in her, while simultaneously offering an alternative position. That is what this Attorney-General and this government have done.
It is quite clear we have seen a hysterical and partisan campaign from the government. We have seen the same senators who sought to interrupt me again on this occasion running hard against Professor Triggs. We then saw the Prime Minister join in. Then the Attorney, who should be defending the commission, very conspicuously had nothing to say. Then came Senator Brandis's big play: he made Professor Triggs an offer she could not refuse, he thought. Too bad about the damage to the independence of the commission; too bad about the damage to Australia's reputation on human rights—and all because Senator Brandis wanted to deliver a scalp. The same people—
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
You have to read this, Penny?
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Let me quote from an article by Professor Ben Saul—a barrister and professor of international law at the University of Sydney.
The President of the Human Rights Commission holds the next closest thing to a judicial office, being both tenured and exercising quasi-judicial powers. Brandis's actions—
Government senators interjecting—
Isn't it interesting how they always have to engage in a personal attack on anybody who is criticising them! It is fascinating, isn't it? I think in Rugby they might call this playing the man, not the ball—right? The quote continues:
Senator Brandis's actions should be viewed in this light—as if he were leaning on a judge to resign because he didn't like the court's decision.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
Absolute rubbish.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
These are not my words, these are the words of a professor of international law:
Such an attack on the rule of law is conduct grossly unbefitting of an Attorney-General and a barrister.
Thank goodness Professor Triggs had the courage and integrity to stand her ground in the face of this extraordinary conduct by this bullying and cowardly Attorney-General, who ought to be defending her.
A government senator interjecting—
We know you are not defending her. We know you have never defended her. You have never defended her; you have never done the right thing. When was the last time you did the right thing, Senator Brandis?
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
I rise on a point of order. Senator Wong has been here long enough to know that she does not address people directly. She must do it through the chair. I ask you to bring her to order.
Stephen Parry (President) Share this | Link to this | Hansard source
Order! I remind all senators that they must address their remarks to the chair, and that interjections are disorderly.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Fortunately, Professor Triggs had the courage and integrity to stand her ground in the face of this extraordinary conduct by the Attorney-General. She told Senate estimates last week:
I rejected it out of hand. I thought it was a disgraceful proposal.
Mr President, fellow senators, it was a disgraceful proposal—a disgraceful, deceitful proposal from a disgraced and discredited Attorney-General. I would like to read—I probably do not have time to read it—a letter that I received from a resident of Wollstonecraft, who wrote:
The Coalition's aggressive and misogynist, unnecessary and malicious attacks need to be curtailed.
The resident wrote:
I want a leader of Australia who is respectful to others, no matter if they disagree with them.
And:
I urge you to ask Parliament to provide a leader for all Australians and not a leader who belittles, ridicules and repudiates others.
This is the view from mainstream Australia. But I would say—and I address my remarks to this chamber and particularly the crossbench—there is a lot of partisan debate in this chamber. There is a lot of rancour at times, a lot of hard debate and a lot of toing and froing. But we have an important job to do today and the—
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
It's a job you're doing!
Senator Brandis interjecting—
Senator Jacinta Collins interjecting—
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
We have an important job to do today, and that is to stand up for our system of democracy, which recognises the importance of independent institutions.
It is our job today to say that we believe that independent statutory authorities ought be able to do their jobs without fear or favour. It is our job today to stand up for those who are not able to stand up in this place and argue their cases. It is our job to stand up to those who do not have the pulpit of parliament to issue bullying statements, critical statements and endless attacks on the President of the Human Rights Commission, because that is what we have seen from this government. Whether in the House of Representatives, where we have seen the Prime Minister— (Time expired)
10:26 am
Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source
When Senator Wong reaches for principles to try to defend this motion you know that she is absolutely scrabbling for ground. It was this person who came into this place, remember, telling us that the carbon price and the carbon challenge was the greatest moral challenge of our time, and then just threw it away like a used tissue. The principle all of a sudden became inconsequential. Of course, loyalty to leader is one of her great strengths. A strong principle in Senator Wong is loyalty to leader—until she decides otherwise; until she thinks it might be beneficial for her to become Leader in the Senate.
But let us have a look at this motion bit by bit. First of all, my good friend and colleague the Attorney-General is being criticised for failing to defend the President of the Australian Human Rights Commission from malicious attacks. And what does she base that argument on? She is basing it on the fact that 'statutory agencies should be able to act without fear or favour'—without having their reputations reduced. I ask Senator Wong and the Australian Labor Party, not rhetorically: does that apply to the Australian Public Service Commissioner? That there is no answer from the Australian Labor Party tells you everything you need to know. Labor will besmirch the Australian Public Service Commissioner in a press release from the shadow labour minister, but that is okay!
Senator Cameron interjecting—
Senator Cameron is coming in right on line! Come in, spinner! Senator Cameron, by his interjection, reminds me of another independent statutory authority: Fair Work Building and Construction. You would not believe my luck! At Senate estimates I deliberately asked Senator Cameron—Senator McKenzie will vouch for this—a question. I should not have done, I confess, but the Hansard I am sure will record, 'Does he have confidence in the Director of Fair Work Building and Construction—an independent statutory authority?'
Senator Cameron interjecting—
He said 'No,' and he is confirming it.
I appeal especially to the crossbenchers: when people want to bring motions of this nature they have to come with clean hands. They have to be able to show that they represent a party that treats each individual statutory authority in an honourable and respectful manner as they are asserting today. Have they done so with the Public Service Commissioner?—by their own admission, no. Through Senator Cameron, have they done so for the Fair Work Building and Construction Director?—no.
When people come into this place wanting to move censure motions they should do so with clean hands, and we see the hypocrisy of the Australian Labor Party. Make a criticism of the Human Rights Commission and there is outrage. Make a criticism of the Public Service Commissioner and it is, 'Okay; nothing to see here, we will just move along.' Make a criticism of the Fair Work Building and Construction Director and it is, 'Nothing to see here; we'll just keep moving along.' The hypocrisy is palpable. Senator Wong stands condemned for trying to make this assertion that statutory agencies cannot be criticised.
Let us be very clear what the point is here. Many years ago the Australian High Court determined that this country does have this wonderful thing called 'free speech'. Even if you are a statutory authority, such as the Industrial Relations Commission, an editor of a newspaper is entitled to criticise you. That was established in a great case involving the editor of The Mercury many years ago. The then editor sought to criticise a decision of the Industrial Court and the Industrial Court took him all the way to the High Court, but the High Court quite rightly said that it was right and proper for that good editor of The Mercurythey had them in those days; in fairness, I am sure they still do nowadays—to be critical. If the High Court is of the view that people can be critical of independent statutory authorities, why is it that a parliamentarian should not be able to? In fairness, I have never run the ridiculous argument of Senator Wong in relation to independent statutory authorities. I believe they have to do their duty, they have to be seen as bipartisan—
Senator O'Neill interjecting—
Thank you very much, Senator O'Neill. I invite you to watch a video of the employment estimates so ably chaired by Senator McKenzie. If you do, you will see some of the worst bullying in your life—by Senator Doug Cameron. He spent half an hour in the previous Senate estimates attacking an independent statutory authority for seeking to defend a female public servant from being abused through a loudhailer—with language so abusive that I hope we would all condemn it. If ever you wanted an example of misogyny, it was Mr Collier shouting through a loudhailer at a female public servant who was acting for and on behalf of an independent statutory authority. What does Mr Shorten do in response to that? He wheels in his frontbencher Senator Doug Cameron to run defence for this terrible individual who has now voluntarily given up his right-of-entry permit. But Senator Cameron tried to fight it all the way.
Without saying that Senator Brandis has failed to defend the President of the Human Rights Commission, I simply remind the Labor Party—
Senator Wong interjecting—
Is it not amazing? When coalition senators interject, it is the most outrageous thing. When Senator Wong does it, it is Labor, so it is okay! It is like the attacks on independent statutory authorities—the hypocrisy is there for all to see and for all to read in the Senate Hansard. The second paragraph of this motion asserts that the Attorney-General sought to obtain the resignation of Professor Triggs. That is simply false. There is not a shred of evidence that supports that assertion. It is false, false, false.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
On a point of order, Mr Acting Deputy President: that is a misleading statement. Professor Triggs gave evidence precisely to that effect.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
There is no point of order.
Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source
We have an interesting situation. Let us be very clear: if Senator Wong wants to believe some sort of blown-up version of the evidence Professor Triggs gave to the Senate committee the other day, she would then, by implication, have to reject completely the evidence of the Secretary of the Attorney-General's Department. So, by allegedly defending the President of the Human Rights Commission, she is besmirching the reputation and the evidence of the Secretary of the Attorney-General's Department. We can stand in this place and besmirch his character, allegedly, but, if anybody questions that which the Human Rights Commission has engaged in in recent times, that is completely different, of course, from the Labor Party's two-pronged approach, which would be better described as the forked-tongue approach.
The Attorney-General is also condemned for refusing to fully account for his conduct when appearing before a committee of the Senate. Nothing could be further from the truth. He was there hour after hour after hour, answering questions that were put to him. The fact that the Labor Party could not make headway in view of the overwhelming evidence in support of the Attorney-General does not mean that he refused to fully answer. What it means is that the Australian Labor Party had nothing to put into their sails.
Then the Attorney is accused of undermining Australia's commitment to upholding human rights. Can I tell you: one of the fundamentals of human rights is to have a free media in this country. Which was the political party that tried to put a restraint on the media in this country? Senator Conroy is absent, so, just in case people needed reminding, it was none other than Senator Conroy. What did that build on? It was built on a former Labor government that tried to restrict political advertising during election campaigns—a Senator Nick Bolkus special, if you recall, Senator Macdonald. So this is a political party that restrains and seeks to restrict freedom of speech in this country and then, in the next breath, just discards that to say, 'Nothing's happening; we are the champions of human rights.'
Then we go to the last clause: that Senator Brandis is allegedly unfit to hold the office of Attorney-General. What a joke—a highly qualified barrister and QC, very capable and learned in the law. Senator Wong accuses the Attorney-General of a personal attack. What is the language that Senator Wong used? That he was a bully; that he was a coward; that he was a disgrace; that he was discredited—but not a personal attack to be seen here! If Senator Wong does a personal attack, it is high and mighty! It is undoubtedly absolutely overflowing in principle! But if there are some questions about the good professor's conduct and the way the Human Rights Commission has been operated then allegedly this is a matter of bullying and cowardly behaviour.
So let's just go through some of these issues. First of all, why the inquiry into children in detention? Let's just have a look at the facts. When the Howard government left office, how many children were in detention? Why is it that nobody on the Labor-Greens side would answer that question? Because they know the answer is zero. When the Labor-Green government got defeated in September 2013, how many children were in detention? Once again Labor and the Greens do not know the answer, but the coalition does: there were in fact 1,743 children in detention. Today, how many children are in detention? Once again the Labor Party and the Greens will not answer, because they do know the answer. We on this side do: 261 remaining, and the number is heading south by the day. What better human right could there be than to actually see no child going into detention and then the legacy caseload, courtesy of the failed Labor-Green policies, being removed from detention, which is exactly what we are doing? So, having seen the number of children in detention grow from zero up to about 2,000, the Human Rights Commission was never motivated to undertake a study of the consequences of detention on children.
Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source
That's not true—they reported all the way through.
Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source
Sorry—they were motivated! You are right, Senator O'Neill! I understand they were motivated and had discussions with Labor ministers, and it was decided it would not be a good idea because it might be a little bit controversial. If a human rights commission wants the reputation it is quite entitled to have, it needs to behave in a manner that is beyond question, that is seen as being impartial. That is where there have been some concerns expressed in the community.
On the issue of children in detention, I ask: with Labor's failed policies, in addition to the nearly 2,000 children being put into detention, how many children lost their lives at sea? What was the Human Rights Commission's response? 'Nothing to see here. Just move along.' Where do the Human Rights Commission see injustices? They claimed, for example, that there are armed guards patrolling the detention centre on Christmas Island. How could you make up such an allegation, an allegation that was found to be completely and utterly false?
Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source
It was in evidence before it was clarified.
Eric Abetz (Tasmania, Liberal Party, Minister for Employment) Share this | Link to this | Hansard source
If it is false, it is not evidence; it is a lie, it is untrue and can never be sustained. For the Human Rights Commission to have embraced that and to have then talked about it in the media is a matter of great concern. For those concerned about human rights, and especially at a time when Australia quite rightly has, as its Australian of the Year, a champion to fight domestic violence, a wonderful woman, think of this as an offering from the Human Rights Commission. About John Basikbasik, who entered the country illegally in 1985, later murdered his pregnant partner and was involved in a revolving door of violent incidents, the Human Rights Commission said, 'He should be removed from detention and be paid $350,000 of Australian taxpayers' money'. There you have a wonderful championing of human rights—apart, perhaps, from those of the dead partner and those of all the victims of the violence. Is it any wonder that there are a number of people and commentators questioning decision-making in the Human Rights Commission? I, for one, am quite frankly amazed that the Human Rights Commission could discard a female partner who was killed in rage when expecting a child—that they should recommend he be released from detention after having come into this country illegally.
Then there was another one. The Human Rights Commission recommended that a serial criminal be paid $300,000 of taxpayers' money in compensation for being detained while engaging in legal action to prevent deportation. Do you know what the Federal Court said about that action to prevent deportation? The Federal Court is somewhat higher than the Human Rights Commission. With respect to Ben Saul and Senator Wong's other Labor mates, the Federal Court is actually a judicial body. Do you know what the Federal Court said about this criminal's legal actions? They said they were 'frivolous, vexatious and embarrassing.' Here you have a fully-fledged court of the Commonwealth of Australia saying that the action by this person was 'frivolous, vexatious and embarrassing'—while on the other hand you have the Human Rights Commission, under Professor Triggs, saying, 'This poor man; he deserves $300,000 of Australian taxpayers' money.'
These are the sorts of decisions that have been coming out of the Australian Human Rights Commission in recent times. On top of that, you have had the ludicrous false allegations of armed guards at Christmas Island and we have this ludicrous time, now, of having to lock the children in detention. And so the list goes on.
This motion has all the hallmarks of the Australian Labor Party. It is not based on principle; it is based on hypocrisy and duplicity. It is seeking to champion the cause of certain decisions which fly in the face of people—not that one email or letter that Senator Wong got that she claims represents mainstream Australia. I would invite Senator Wong, the Australian Labor Party, the Greens and the crossbenchers to go out onto any street corner and ask what people think of the decision to give John Basikbasik $350,000 for being in detention whilst having to face these very serious charges.
I have no doubt where the Australian people stand in relation to these matters. They want genuine human rights. They want people to be protected. Might I say, the Attorney-General has done an absolutely superb job in doing exactly that—being a great steward of the Australian taxpayer dollar and human rights.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Before calling the next senator I remind the Senate that the Senate standing orders provide that senators will be heard in silence.
10:46 am
Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source
I rise today to support the censure motion which cites the fact that the current Attorney-General is unfit to hold the office. It is absolutely clear that the rule of law is fundamental in a democracy. If we do not uphold the rule of law then we are descending into the kind of mess we have seen in other countries around the world. It is fundamental. What is extraordinary here is that we have a conservative government—which cloaks itself in the flag; which cloaks itself in law and order, in order to secure support in the community—which is actually not conservative. Members of this government are extremists in the way they attack the institutions in our democracy.
This is a really important point, and the Attorney-General is at the heart of this. It is his job as Attorney-General to defend the institutions of justice in our democracy. It is his job to defend the rule of law and uphold the rule of law and the independence of statutory authorities. Instead, we have seen the Attorney-General complicit in the Prime Minister's attack on the independence of the Human Rights Commission and, clearly, an attempt to destroy its President. That is extremely serious in a democracy. As the legal fraternity, in the letter of support that they released in January, said:
Independent public office holders are an important part of modern democratic societies. Their task is to ensure accountability for abuses of power by government. Their capacity to perform this role depends on their independence and ability to act impartially.
That is precisely what we have had with the Human Rights Commission. That is why the government does not like it. In fact, they are the independent umpire of the state. It is essential here that we do support the Human Rights Commission, as an independent statutory authority, upholding the rule of law. It is particularly important in the case of Australia because we are unique in our treatment of asylum seeker children. No other country mandates the closed and indefinite detention of children when they arrived on its shores. Unlike all other common-law countries, Australia has no constitutional or legislative bill of rights to enable our courts to protect children.
This is a direct quote from the president, Professor Gillian Triggs:
The evidence documented in this Report demonstrates unequivocally that prolonged detention of children leads to serious negative impacts on their mental and emotional health and development. This is supported by robust academic literature.
It is also clear that the laws, policies and practices of Labor and Coalition Governments are in serious breach of the rights guaranteed by the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The United Nations High Commissioner for Human Rights also suggests in his opening address to the Human Rights Council that Australia's policy of offshore processing and boat turn backs is 'leading to a chain of human rights violations …'
It is that quote from Professor Triggs which tells you why Prime Minister Abbott and Attorney-General Brandis are determined to try to destroy the credibility of the President of the Human Rights Commission: because it is the only institution which is calling out both the former Labor government and this government on their treatment of children as being contrary to the law. That is the job of the Human Rights Commission—to do just that. In fact, the Australian Human Rights Commission Act 1986 gave it the right to:
For the purpose of the performance of its functions … hold an inquiry in such manner as it thinks fit …
That is exactly what it did in relation to the cruel treatment of children, and it called it out in no uncertain terms. That is why the Attorney-General has set out to destroy the credibility of Professor Triggs and, in fact, the institution itself.
But it did not just start with the investigation into the detention of children. This government's attack on the Human Rights Commission started virtually the day after it was elected. If you go through the period of time from the election in 2013 until now, you find endless attacks on the Human Rights Commission. You find it there in the denial of access to Nauru and Manus Island detention facilities. You see it when Professor Triggs stood up on section 18C of the Racial Discrimination Act and was vilified, of course, by the Attorney-General as well for the stand—now it seems the Prime Minister has reversed his position on 18C and now wants to strengthen that particular part of the act. You also saw it with the refusal to reappoint the Disability Discrimination Commissioner. We have seen it with the funding cuts to the commission. And, of course, we have seen it in the children in detention inquiry.
We also saw it in relation to many other things, including a statement from the outgoing Disability Discrimination Commissioner where he stood up in the Press Club in July 2014. The then commissioner, Graeme Innes, criticised the government's attack on the Human Rights Commission and on the commission's focus on antidiscrimination legislation to the detriment of promoting fundamental freedoms. He stated that the Human Rights Commission only administers antidiscrimination legislation and that a charter of rights should be passed if the government wants those rights to be examined, and he went on to criticise the government's decision to appoint Tim Wilson when it was intending to cut the Human Right's Commission budget, forcing them to accommodate that salary within their existing allocations.
Of course, the president not only criticised the government on immigration but went on to the legacy case load bill. There is a whole lot. Day after day, week after week, they gave a ruling on indefinite detention of mentally ill Aboriginal men in the Northern Territory. Week after week, the commission were doing their work: upholding human rights, putting a light onto where the government was failing to uphold the law.
As a result, the fact is that the government decided to do in the Human Rights Commission. Many people will have missed it because they were on holidays, but in January this year there was a report in Rupert Murdoch's pamphlet The Australian that stated that coalition MPs were attempting to launch an inquiry into the timing of the Human Rights Commission inquiry into children in detention and investigate the president for political bias, while criticising her on many other issues. So clearly there had been a decision by the government to launch a pre-emptive attack on the commission. Backbenchers had already started to talk to the Attorney-General's office about launching such an attack. Why? Because he had the report on the detention of children in November. This was a concerted campaign across the summer that we saw ratcheted up in January.
We have just heard Senator Abetz on the Basisbasik affair, Once again he completely misrepresented the Human Rights Commission. This misrepresentation had previously provoked a whole lot of lawyers—25 leading legal experts—to come out and state that the government's attack on the Human Rights Commission over that decision was disgraceful. All that the commission found was that the government had not established that continued detention after completion of a sentence was necessary—and Professor Triggs herself made it clear that the government had the right to reject her findings if they were wrong in law.
I want to emphasise that point. Professor Triggs gave the report on Basikbasik to the Attorney-General in June last year. He had six months to reject her findings on the basis that they were wrong in law. He did not. He said nothing, because in law she is correct. Instead of finding any legal basis for rejecting the Commission's finding, he waited until the period in which he could actually do something about it had run out—and then in January he launched these public attacks and smear campaigns through The Australian. That is disgraceful. If, Senator Abetz, the Attorney-General had a reason in law to reject the Commission's, he had had six months to do something about it, but he did not—because Professor Triggs was right in law. She was doing her job as chair of the Human Rights Commission and she is a highly regarded legal expert.
That brings me back to the point I am making about the rule of law in Australia—and the Attorney-General's failure to uphold that rule of law. It is a real concern. In a very interesting assessment of our current Prime Minister's behaviour, 'Tony Abbott running from the law', David Marr said:
But when the law stands between him and a quick win, he shows contempt for its values, its customs and the part they play in national life.
And the Attorney-General goes along with it. That is absolutely the case. They made a decision that the Human Rights Commission, by upholding the law, was undermining the government—because it was exposing an extremist government acting the wrong way in the face of the law. Instead of reflecting on the Human Rights Commission's findings and upholding the law, they made a decision to go after the Human Rights Commission and, in particular, its president.
They know as well as we do that the only bases on which they can remove the President of the Human Rights Commission are misbehaviour, bankruptcy, failure to disclose interests, or mental or physical incapacity—and they had none of those. There was no way they could get rid of the person they wanted to get rid of. What is her crime? Her crime is that she stood up for the law, the rights of the disadvantaged and the rights of children in detention. People around Australia get it. They get that children were being badly treated in detention under both Labor and Liberal governments—and they now see a disgraceful effort by the Prime Minister and the Attorney-General to do in Professor Triggs. These matters have now been referred to the Federal Police, as indeed they should have been—because an offer of an alternative position, on the basis of a promise or an undertaking to resign, can only be seen as an inducement. That is why it is now with the Federal Police to investigate.
But we as a parliament have to consider what is to be done. It goes to this fundamental issue: do we want, as a country, to allow the government to get away with undermining the rule of law? If you have not got the rule of law, then you sink into a quagmire, and that is my concern here—that the Attorney-General has facilitated and is facilitating the Prime Minister in abusing the rule of law because it suits them to do so, because Professor Triggs and the Human Rights Commission, without fear or favour, will do as they are required to do under the law, and that is look at issues brought before them, look at the framework and the legal process in place and act accordingly. That is why we should be supporting Professor Triggs and we should be doing everything we can in this parliament to seek the upholding of the law.
I want to just come back to the fact—I think it should be noted—that Senator Abetz did not defend the Attorney-General until the last four seconds of his speech. The government know, as this parliament knows, as the Australian community knows, that this is an unwarranted witch-hunt against Professor Triggs and the Human Rights Commission. There is no other way that you can see it—the bullying, the abuse. It was outrageous in January: day after day, week after week, in The Australian out came these reports—to the point where I asked for an assessment of just how many reports had come out in The Australian over January, leading up to the release of the report.
There was a strategic decision made by the government to go after Professor Triggs, starting with the attack on 8 January by the Prime Minister. That is why I link this to the Prime Minister. It is not just Senator Brandis; it goes right back to the Prime Minister's office. On 8 January, Prime Minister Abbott questioned the president's judgement on John Basikbasik. He went on and on subsequent to that, and that led into the articles saying that coalition MPs are attempting to launch an inquiry into the children in detention report and investigate Professor Triggs for political bias—and so it went on. So the Prime Minister started it on 8 January, knowing this report had to come out, deciding then that they would bring it out at the last possible moment they could in terms of the time frame and work up, day after day, their attacks.
One of the most cowardly and disgraceful things, from my point of view, is the fact that the Attorney-General, if he had a problem with the Basikbasik judgement of the commission, had his statutory six months to do something about it, and he did not. Why didn't he? Why didn't the Prime Minister require him to do something about it if they thought there was something wrong with the judgement in law? And there is not. That is what is so pathetic. That is the contempt that they show for the law. They would prefer to go through the shock jocks and the Murdoch pamphlet to get out there and build a case, rather than go back to the fundamentals of the law.
Legal academics came out and said:
If the government disagrees with the commission, providing a reasoned explanation of why it considers the commission's reasoning or conclusions to be wrong as a matter of law would be the most constructive way of contributing to the discussion of the important and sensitive issues involved in this case.
In our view, the President of the Australian Human Rights Commission has carried out her duties under the Act with independence, impartiality and professionalism.
That was the judgement of leading academics in relation to the investigation into the Basikbasik case. I want to also correct the record: at no stage did Professor Triggs say that John Basikbasik should just be released into the community at large. That is important. It is a complete lie and misrepresentation that the government goes on with.
I know that there is great disquiet in the Liberal Party about what the Prime Minister has done and what the Attorney-General has done. That is why people are concerned. I know that there are people who joined the Liberal Party because they thought they were conservatives and they actually believed in the rule of law and upholding the rule of law. They thought they actually believed in human rights. Instead of that, those people have landed themselves in a party of extremists who are prepared to ditch the law when the law stands between the government and a quick political win or anything else, and they will show absolute contempt for the law.
That is why I and the Greens are supporting the censure motion against the Attorney-General. We do not believe he is fit to hold the office of Attorney-General. Not only that; his behaviour and that of his colleagues has demeaned the Senate and the parliament. The inquisition that took place last week was a disgrace—the failure of the chair to properly chair the session, to protect the witnesses. But that is a secondary matter to the fact that we have a government prepared to undermine the rule of law. It is time we had an Attorney-General who will do as an Attorney-General is supposed to do, and that is uphold public confidence in the law and legal institutions and stand by those legal institutions. It is a view that has been expressed, I know, within the Liberal Party. It was reported that Craig Laundy MP, for example, said, 'Why didn't you focus on what happened to the children in detention rather than go after the commissioner, whose job it is to interrupt the framework of the law?' The Attorney-General has shown he is not fit to hold the position he currently holds in the government, and the lack of confidence in him extends well into the community.
11:06 am
Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source
We know in this place that censure motions are rare. They are rare because only at very special times do people feel as though responsible ministers have lost the faith of the people in this parliament. In terms of the process, it is always difficult. I know that Senator Abetz in his contribution said that, if you went out into the wider area, you would find people who would actually be supporting what is happening with concern about the role of human rights, and particularly the role of the Human Rights Commissioner. He also said that you would find that people would be supporting the government in their process. It is always difficult to speak on behalf of the Australian people, but what I can say is that, over the last couple of weeks, there has been an amazing response from people across this country through techniques that I do not always watch—that is, letters to the editor, talkback radio and comments to parliamentarians, where people have been expressing concern about what they have been perceiving as an attack—a personal attack—on an office bearer rather than focusing on the issues about which there may well be concerns from the government.
This is not the first time that the work of the Human Rights Commission and individual commissioners, and indeed presidents, has—
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
Mr Acting Deputy President, I hate to interrupt Senator Moore, but can I raise a point of order. We now have had three attackers on this motion and one defender, if I can use those words. How can this be fair? We are talking about the Human Rights Commission and fairness.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Excuse me, Senator Macdonald. What is your point of order?
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
I would have thought that it should have been one from this side speaking now rather than Senator Moore.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
There is no point of order, Senator Macdonald.
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
Mr Acting Deputy President, can you just explain the ruling, please.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Senator Macdonald, there is no point of order.
Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source
In terms of the process, basically what we have seen is questioning—public questioning—about the way that this government and, in particular, the responsible minister—
Honourable senators interjecting—
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Senator Moore has the call.
Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source
Could you remind Senator Macdonald, please—
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Excuse me. Senators making a point of order will rise in their seat.
Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source
It shows the interest people have in this discussion. But, in terms of the process, again I say that what we are talking about today in the Senate and what was discussed in other ways about the role of the government—in particular the Prime Minister—last week in the House is not something that has not been questioned and discussed in the wider community. I have been impressed by the way that people across this country have been expressing their concerns about what they perceive as not a questioning of a report, not a questioning about what has happened in the Human Rights Commission, but rather as quite a personal and strategic attack on the President of the Human Rights Commission, Professor Triggs, and also as raising questions about what is in fact the role and the job of the Human Rights Commission. This is something for which the Attorney-General is responsible as the first officer of the law in this country.
However, it is important to know that the Australian Human Rights Commission Act provides that the commission functions 'to inquire into any act or practice that may be inconsistent with or contrary to any human right', and it goes on to talk about the definition of human rights. But the process involves the Human Rights Commission as an independent agency, and commissioners working in that agency have the right—in fact, the responsibility—to provide an investigative report to government with recommendations. That process, as I said earlier, before one of Senator Macdonald's interjections, is something that has been in place for many years, many parliaments and many attorneys-general, and I know that through that process there have been issues with which people do not agree and have said that they do not agree. They have said in debates in this place that there are recommendations and processes that have taken place with which individuals or governments have not agreed.
What this particular censure motion says is that we believe that the role of the Attorney-General in this case has gone beyond a questioning and assessment of recommendations and information with which he does not agree. What has happened has been that there has been a direct, strategic attack on the role of Professor Triggs—in fact, impugning her integrity and her professionalism. This is not my position; this is the position that has been put forward by an unprecedented range of professionals and legal groups that have come forward to make statements about how they feel about the attacks and processes that have been in place in this place—in our parliament and in our government, which is attacking. As I think the senator from the Greens just said, it is reflecting more on all of us—on us as a parliament and an organisation in terms of the way we operate. In terms of the censure motion, what we are saying is that we believe that this attack has gone beyond just questioning and has gone into personal attack, and that does not reflect any worth on the Attorney-General or on this place.
What has happened is that the community has responded. I know that Senator Wong quoted from one letter. There were so many places from which Senator Wong could quote. When we look at the media coverage, there have been divergent views, and that is always what happens, but consistently there have been not just legal groups, such as the Australian Bar Association, not just previous commissioners and not just previous prime ministers—indeed, we have had comment from Malcolm Fraser a number of times on this issue. These are people who care about the system, who care about the process and who are knowledgeable and experienced in the way that this interaction between the Human Rights Commission and our parliament and our government should operate, which is to investigate aspects of our human rights. We take that seriously—as you know better than most, Mr Acting Deputy President Smith, from the fact that we now have a Parliamentary Joint Committee on Human Rights in this place. That has come over many years because of the respect and the concerns that we believe parliament should have on issues of human rights.
What has occurred in the public has been, I believe, a response to what they perceive as something which they know is wrong, which is attacking a person—an individual and a professional—rather than looking at the issues themselves. That has been across a range of institutions and groups who have been making that point. I have been surprised. I wish that issues around human rights and issues around equity were more openly discussed in the community. Only in the last week, I have attended a number of functions for a range of things, from lunar new year celebrations in communities to book launches to meeting with people just when they actually know who you are and want to talk about what is happening in parliament, and people were expressing their views on what has happened over the last couple of weeks. Also, I take the point raised by the Greens that this has not been just a recent attack; this has occurred over a period of time, but I am concentrating on this recent period of the release of the children in detention report. People are questioning why, instead of actually looking at the issues, the leaders of the government, including the Prime Minister and the Attorney, have been attacking the messenger rather than the report.
Indeed, we have seen in, I think, an unprecedented way in Senate estimates that the report did not seem to be the issue. In fact, the Chair of the Legal and Constitutional Affairs Legislation Committee put on record that he had not read the report because he 'knew that it was partisan'. In that environment, the process is detracted from, and that is why there is a censure motion before the parliament. We believe the role has been impacted. We believe that the respect for and integrity of role and the way it should operate have been damaged.
It is rare that Senate estimates inquiries receive the amount of media that the legal and constitutional committee received the other day—for all the wrong reasons, instead of concentrating precisely on the issue, which was whether this report reflected human rights concerns. Believe me, as someone who has read that report, I believe it does, and I also believe that it raises questions across a number of governments and a number of parliaments when it comes to the way that the system operates and to the core impacts, as put forward by Professor Triggs, not just at the Senate estimates hearing but in public statements she has been forced to make because of allegations that have been made in the wider community and in the media about the performance of her role. Professor Triggs attempted to table a document numerous times the other day at Senate estimates to describe exactly what the process was.
This is a longstanding human rights issue and Professor Triggs has pointed out how long the commission has been involved in the area of children in detention. This report raises issues that are absolutely central to human rights and puts these issues on the agenda for the government of the day and for the parliament to consider, which is how the system operates. Should there be any difference of opinion about what is in the report, should there be any questions about that report, there are ways to deal with those in our system. In fact, one thing could be to have a special hearing of the human rights committee or something of that nature. But what has happened is an insidious amount of commentary and discussion not just around the report and the Human Rights Commission as an entity and in what it does but, more particularly, around the integrity and the professionalism of the president. There have been public statements about a lack of confidence in that person. We know, because it is set out, that there are only a certain number of circumstances in which a president of the Human Rights Commission can lose their position. None of those have arisen, but in the wider environment there have been questions, comments and statements that have led people who may or may not have intimate knowledge of the Human Rights Commission to feel as though there is something wrong, and Professor Triggs's name has been trawled through the public. That is wrong.
Under normal circumstances, what one would expect—what I would expect—is that the government of the day and the Attorney of the day would defend Professor Triggs and the commission. I would expect them to question things on which they may not be in agreement, and that has happened many times in the past. We have a litany of Parliamentary Library references to where, in the past, there have been differences of opinion between the government of the day and the Human Rights Commission of the day—and that goes on because it is a dynamic process. But, in this case, we believe it has gone a step beyond by personalising the dismay, personalising the distress and personalising the disagreement. It has come down to the government versus Professor Triggs, and that was never the intent of the legislation. It has never been the intent of the process. There should be an independent assessment of human rights issues prepared for the government and then discussion could occur. I doubt whether there has ever been a time when every recommendation of any human rights report has been accepted. I would love to be corrected on that, but I believe that has never happened. What should happen is a discussion about the issues of human rights concern and then an interaction on that. Never should it degenerate into any personal attack.
What we have now is a range of people in the legal profession with interest in this area who feel that they need to come forward publicly and defend the President of the Human Rights Commission. That is not a circumstance that focuses effectively on human rights issues. We should not be in any kind of personal battle over the integrity or the professionalism of an individual. We should be looking at the clarity of the issues around human rights.
As I have said a number of times, this is not peculiar to people who normally take interest in this area. When you look at the letters to the editor columns in the newspapers, you see that people are coming forward with their concerns about how they feel this debate has occurred. They believe, from what they have seen, what they have heard and what has been reported in the press, that there has not been a defence of the president's role or position. They believe that there has been an attack by the government on the Human Rights Commission president. Anyone who watched the Senate estimates hearing or read the Hansard would accept that there was extraordinary pressure put on the President of the Human Rights Commission and her staff at that hearing.
I do not pretend that Senate estimates is always a cuddly, happy place. I know that there is a dynamic debate, but we should always look at where debate carries on to an extent where there is undue pressure on someone who is there in their professional capacity. Having watched those images of that Senate estimates hearing later, I was actually distressed. In terms of the process—the way it was run and the way it was activated—I was concerned not just at the way the questions went, not just at the responses that were expected and not just in the way Professor Triggs was, I think, actually attacked in that Senate estimates hearing. What I reflected on, though, was how that exercise would be seen by people who do not work in this place; to see the 4½ to five hours of personal questions that went on and also the way that answers were interrupted and the process continued I felt was ineffective and inappropriate.
At no time did the minister at the table move forward to stop the process. At no time did the minister at the table question what was happening, which I thought was very telling in terms of a vignette of the general debate that occurs. I have seen many ministers in Senate estimates over many Senate estimates and there is a time when that can occur. Whether that was a decision that the Attorney-General had to make not, I cannot speak for his position on that day. What I can say is that many people have actually said to me, personally and also through the media columns, that they felt that was a distressing experience. So, again, the process is one of the things that we believe is part of the background as to why this rare occurrence—the censure of a minister in this place—has occurred.
In terms of where we go: many people have asked, 'What are we going to do to respond to what has happened over the last couple of days?' This is not a party position; it is a question for what our parliament is going to do in looking at the role of the Human Rights Commission and also the president of that. What we need to do is to respond to the community and say, 'This is how we believe it should operate, this is what is important and this is how we expect the minister to behave in this process.' That is the background to having a censure motion.
There have been many arguments put forward as to motivation for this and whether it is an attempt to divert from the core issues. I do not know the answers to that. I do not think that anyone knows the answers to that. But what we must retain and what must happen out of any debate that occurs is a respect for the institution, a respect for its absolute independence to do a review of issues and to bring those forward—to look at issues of human rights and bring those forward to the government of the day—and to have the knowledge, if you are working in that system, that when you bring forward issues around human rights to any government that they will consider them effectively, they will respond effectively and they will not actually revert to attacking the messenger rather than the message.
11:25 am
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
The censure motion comprises five paragraphs, the last two of which are essentially rhetorical and I will not detain the Senate by addressing them. Let me address the three substantive paragraphs of the motion in reverse order.
Paragraph 3 accuses me of refusing to fully account for my conduct when appearing before a committee of the Senate. That is, presumably, an intended reference to the Senate estimates committee hearing last Tuesday. That assertion is entirely incorrect. The Human Rights Commission began its evidence before the Senate Legal and Constitutional Affairs Estimates Committee at 9 am last Tuesday. I was not asked a question until 21 minutes to four.
Senator Wong interjecting—
For five hours and 24 minutes the committee sat and not one Labor senator addressed a single question to me.
I can tell you, Mr Acting Deputy President Smith, that I was very eager to address the issues, but not one question was directed to me. Then, eventually, at 21 minutes to four—I recorded the time so that it would be in the Hansarda question came to me from Senator Wong:
Mr Attorney, can you explain why, if you had lost confidence in Professor Triggs, you asked the Secretary to canvass another role with her?
And I responded to that question at some length over four pages of the Hansard.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
It's a pretty good question! If you've lost confidence, why offer her another job?
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
Not only did almost six hours—
Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source
Mr Acting Deputy President, I rise on a point of order. This is a very serious matter that is before the chamber and interjecting is highly disorderly. The leader of the Labor Party in the Senate cannot stop acting in an entirely disorderly fashion, consistently interjecting. The Attorney-General here is providing a very important response to the matters that are before the chamber and I think he should be listened to in silence.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Thank you, Senator Cormann—
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Mr Acting Deputy President, I rise on a point of order. I acknowledge—and I will cease to desist—seek to desist! Sorry!
Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source
That's the problem—you always cease to desist!
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
I apologise—a double negative! I would make the point that the courtesy that Senator Cormann is requesting for the attorney was not offered to me, and no-one on that side stood.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
I remind all senators that the standing orders require that senators will be heard in silence.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
So, in response to Senator Wong's question I gave a lengthy and detailed answer, which goes over some four pages of the Hansard record, and I was not asked another question. During the entirety of a day, when the Human Rights Commission was before the Senate estimates committee for almost seven hours, I was asked one question; a question by Senator Wong to which I responded at length and in detail. Not a question from the Australian Greens, not a question from—
Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source
Mr Acting Deputy President, I rise on a point of order. The Attorney is misleading the Senate. The chair gave Senator Brandis an opportunity to respond at length well ahead of four o'clock on that day.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
There is no point of order.
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
I want to speak on the point of order raised by Senator Collins—
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
But there was no point of order. I have ruled—
Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source
That was a deliberate attempt by Senator Collins to interfere with the Attorney's address, and that should be noted by the chair.
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
There is no point of order. Senator Brandis.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I do not want to belabour this point, because it is far from the most important point, but I just do point out to the chamber, against the assertion that I failed to give a full account, I was asked one question in the entire day about these matters. There was no follow-up question from Senator Wong. There was not a single question directed to me by Senator Collins, who represents the shadow Attorney-General in this chamber. There was not a single question directed to me from the Australian Greens. So how it can be said that I failed to give a full account when I was given the opportunity to do so once and availed myself of it at length is beyond me.
Let me turn, then, to the second paragraph of the motion, which accuses me of seeking to obtain the resignation of Professor Triggs by facilitating the offer of an alternative role that would have required her to relinquish her position as president. It should be remembered in this debate that I have never had a conversation with Professor Triggs about these matters—never to this day. There was one relevant conversation conducted at my request between the secretary of my department, Mr Chris Moraitis PSM, and Professor Triggs. Mr Moraitis's evidence to the Senate estimates committee could not have been clearer. Mr Moraitis said emphatically and unequivocally that he did not ask for Professor Triggs's resignation. So the attack on me is in fact, although the opposition seeks to avoid the consequences of their conduct, an attack on Mr Moraitis, who commands my entire confidence and every word of whose evidence to the Senate estimates committee last Tuesday I believe to be true.
Mr Moraitis is an extremely distinguished public servant. He is, among other things, a former High Commissioner to New Guinea. He has served in senior roles in the Department of Foreign Affairs and trade throughout his career. And, although the opposition seek to avoid the consequences of what they are saying here today, this cannot be other than, by attacking me, attacking Mr Moraitis because they dispute his evidence. Mr Moraitis's evidence was that he did not seek Professor Triggs's resignation, and I stand by him. He has my entire confidence. I might add that Mr Moraitis was equally emphatic that no inducement was offered to Professor Triggs, and Professor Triggs did not allege that an inducement had been offered to her.
But let me be blunt: as I said to the committee last Tuesday, I had lost confidence in Professor Gillian Triggs as the President of the Australian Human Rights Commission. I had lost confidence and I have lost confidence, and that fact, I believe, is something that the public are—
Opposition senators interjecting—
Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source
Senators to my left, order!
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
And that fact I consider is something that the Australian public are entitled to know. They are also entitled to an explanation as to why. The genesis of that loss of confidence is the November Senate estimates committee, when Professor Triggs, given numerous opportunities to do so, was unable to explain why it was that the holding of the inquiry into children in immigration detention was delayed so that it did not commence before the 2013 election. That could only be seen as protecting the interests of one side of politics. We heard from Professor Triggs in the November estimates that she had already decided in 2012 that there should be such an inquiry, but she decided to delay it until after the 2013 election. As I wrote in The Australian on Friday:
… her decision to delay holding an inquiry into children in immigration detention so that it did not begin until after the 2013 election created the justifiable perception that the interests of one side of politics were being protected.
I can tell you as a matter of plain fact that it did create that perception, because there are numerous colleagues on my side of politics from the most senior levels down who consider that decision to have been political, who consider that decision to have been a decision based upon political partisanship.
We have heard a lot of erroneous commentary—by people who are unfamiliar with the relevant legal principles—that the Human Rights Commission should be treated like a court. Senator Wong, if the Human Rights Commission, as you would say, should be treated like a court then the Human Rights Commission and the President of the Human Rights Commission should apply to themselves the selfsame principles that judges apply to themselves when deciding whether or not to recuse themselves from a case. There is a well-developed body of legal principle about real or apprehended bias, so that if there is a reasonable apprehension of bias a judge should not proceed. I disagree with your premise, but if the Human Rights Commission ought to be treated as being analogous to a court then the principles of apprehended bias should apply to it as well. There can be no doubt at all that there has been a collapse in confidence in the impartiality of Professor Gillian Triggs on my side of politics.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
From the bullyboys!
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
It does not do your argument one iota of good, Senator Wong, to keep yelling out 'bullyboys'. The fact is that by her own decision—what I describe as catastrophic error of judgement—Professor Triggs has lost the confidence of the non-Labor side of politics; and I might say, by the way, of many on the Labor side of politics too, who have spoken to me privately.
Senator Moore, in a more thoughtful contribution than Senator Wong's, made the point that the Human Rights Commission has to be above politics. Of course it does. Of course it must be above politics, which is the very reason why, if its leader puts the commission in a position where it is seen to be taking political sides, then the commission's position and the president's position become untenable. It is for the very reason, Senator Moore, that you articulated that the president must be careful not to make decisions which can reasonably be thought to favour one side of politics over another. Professor Triggs, I am sorry to say, failed that test.
To say that is not to criticise her integrity; it is not to criticise her professionalism, either. It is merely to say that a person charged with the obligation of leading a body which must be like Caesar's wife—a body which must be extremely jealous of its reputation for freedom from political partisanship—will find their position untenable if they steer the commission into a position as a result of decisions they have made which are seen to favour the interests of one side of politics above another. That reputation is lost; that reputation, I am sorry to say—not because of anything I or the Prime Minister have said, but because of what Professor Triggs herself decided—has been lost.
Sue LinesGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
It is my view, Senator, and it is the view of those on my side of politics.
Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source
Order! Senator Lines.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I am trying to get through to you, Senator, that the Human Rights Commission can only do its job if there is bipartisan confidence in its non-partisan character.
Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source
Confidence in you was lost a long time ago!
Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source
Order! Senator Singh.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
Professor Triggs, I am very sorry to say, has cost the Australian Human Rights Commission that reputation. Lastly, let me come to the first paragraph of the motion: that I failed to defend the President of the Australian Human Rights Commission from malicious attacks. I do not think there have been any malicious attacks on Professor Gillian Triggs. I have made three contributions on the public record on this topic: during an interview, on Sky Agenda on 1 February; in my statement to Senate estimates in response to Senator Wong's single question last Tuesday; and in an opinion article in The Australian last Friday. In every one of those three contributions, as well as in this contribution today, I have been very careful to say—as I repeat—I have a high personal regard for Professor Triggs. I am particularly conscious of and admire her reputation as an eminent international lawyer. But I think we all know from our own life experience that, just because a person might be a distinguished academic, it does not mean they necessarily have the skills to manage an agency of the executive government.
Senator Bilyk interjecting—
Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source
Order! Senator Bilyk.
George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.
11:47 am
Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source
It is a pleasure to offer my support to this censure motion and vote of no confidence against the Liberal Party's Attorney-General, Senator Brandis, for:
(1) failing to defend the President of the Australian Human Rights Commission, Professor Gillian Triggs, from malicious attacks;
(2) seeking to obtain the resignation of Professor Triggs by facilitating the offer of an alternative role that would have required her to relinquish her position as President;
(3) refusing to fully account for his conduct when appearing before a committee of the Senate;
(4) undermining Australia's commitment to upholding human rights; and
(5) being unfit to hold the office of Attorney-General.
You cannot support Professor Triggs and not support this censure motion. It is either one position or the other. You cannot have your cake and eat it too. The attack by Prime Minister Abbott and the Attorney-General is so vicious and extraordinary; there are no shades of grey in this debate. If you support Professor Triggs, you will support this censure motion against Attorney-General Brandis.
Today, I call on all members of the Senate to vote according to their conscience; against the Attorney-General and for Professor Triggs. In particular, I direct those comments about a conscience vote to members of the National Party—some of whom I know to be honourable. I know that there are many Nationals who are outraged by the disgraceful personal attacks which have been launched by Liberal Party members, including Prime Minister Abbott and the Attorney-General, Senator Brandis. I call on those senators to cross the floor of this place and vote—to show confidence in a distinguished and honourable Australian public servant who has only made the mistake of telling the truth and doing her job.
The Prime Minister, the Attorney-General and other Liberals must stop their unbalanced personal attacks on the Australian Human Rights Commissioner Gillian Triggs, and get on with the job of ensuring that children are released from detention centres—all the children, not just the children they released before Christmas time; all of them. Stop doing half the job and get the job done properly.
When it comes to securing our borders, I have to give praise to the Abbott government. They did what they promised. They put the corrupt overseas officials, people smugglers and their boats out of business. I am, like many Australians, am grateful for that. They stopped rich foreigners from bribing and rorting their way through Asia into Australia. They stopped the regular, mass drowning of men, women and children at sea. They proved that Labor's and the Greens' immigration policies were dangerously flawed and poorly administered. They increased the chances of legitimate refugees being granted asylum in Australia by legitimate means.
However, the good that the Liberals did for Australia's border protection and national security, is overshadowed by the vindictive, personal attacks that Attorney-General Brandis and the Prime Minister have launched on Human Rights Commissioner Gillian Triggs. Why is the Attorney-General and the Abbott government so scared of a royal commission, as recommended by Professor Triggs? That is the question I would like answered.
When it comes to prioritising human rights abuses, surely the systemic abuse of hundreds of children in our government's care goes to the top of the list. And public servants tasked with their protection, whose job it is to speak out on children's behalf, should be given a medal, instead of having have muck thrown at them by desperate and disconnected politicians.
Most Australians would agree that keeping children locked up in immigration detention camps is a deplorable situation. We all share a great shame because of the dreadful harm, which has occurred to these innocent little humans. A royal commission will help us properly learn the lessons. It will help stop, not only the illegal boats in the future, but also the mistakes we made in dealing with these children. Every one of Australia's major political parties should come in for criticism for the role they played in this humanitarian tragedy.
Mr Abbott promised Australia after the Liberal's party room meeting on that Monday to do things differently. Attacking a respected Australian dedicated to protecting the human rights of innocent children is not only pathetic stupid politics, which will further damage the Liberal brand; it is more evidence that Mr Abbott has not changed. It shows Mr Abbott is incapable of change and is doomed to endlessly repeat the same silly political mistakes which caused his near-death political experience.
Many respected members of academia and the Australian community feel the same way as I do. The ABC reported that Australia's first federal human rights commissioner, Brian Burdekin, slammed 'disgraceful' attacks by Tony Abbott and George Brandis on Human Rights Commissioner Gillian Triggs. Brian Burdekin said both Tony Abbott and George Brandis have made a grave political disgraceful error in maintaining their attack on Gillian Triggs. He further stated:
I think from the feedback I've been getting - and I still obviously am in touch with a lot of people in the human rights arena: a lot of people in legal circles, a lot of people in non-government organisations who care for the most vulnerable and the most disadvantaged - the feedback has been universally, as far as I can perceive it, hostile to what the Prime Minister and the Attorney-General were trying to do. And to that extent I think it's politically quite unwise. I honestly don't understand why the Prime Minister and the Attorney-General felt it appropriate to do it.
Professor Burdekin also said Senator Brandis did not appear to have a clear understanding of what his role of Attorney-General entailed.
Professor Burdekin also told the ABC:
To be honest, I am deeply concerned that the Attorney-General we have at the minute simply doesn't understand what the remit of the Human Rights Commission is.
I mean, he's actually talked about the fact that we really just need to rely on the Magna Carta. Well, the role of the Human Rights Commission, as Gillian Triggs has pointed out recently and as I pointed out many years ago, is to stand up for the most vulnerable and disadvantaged groups in our community: the homeless, the mentally ill, Indigenous people, people with disabilities, children in detention: whatever. You won't find any of that in the Magna Carta, I can guarantee you.
The things that the Human Rights Commission is obliged to do by law are directly related to those very vulnerable groups and its highest priorities have to be those who are least able to defend themselves.
It has become very clear that the majority of average Australians, including those from Tasmania, are disgusted by the politically motivated, personal attacks on Professor Triggs. We are all sick and tired of this sort of politics going on. We all know that the political attack on Professor Triggs was supposed to somehow appeal to the base of the Liberal Party—and was really designed to boost Tony Abbott's leadership stocks.
Well the genius who put this plan together failed miserably. The attacks on Professor Triggs damaged the office of the Prime Minister and significantly harmed the office of the Attorney-General. Meanwhile there are still well over 200 children who are in detention.
A successful censure motion against the Attorney-General today will have the benefit for the nation of advancing a leadership and policy change for this government. My hope, like many other Australians, is that the leadership of Australia changes and a group of people with a kind hearts who focus on the welfare of those children is given the privilege of leading our great nation and that an Australian Attorney-General who has the respect of his or her legal peers is appointed to the position of our nation's first law officer.
For someone who has high regard, as he has just said, for Gillian Triggs, he sure has one hell of a way of showing it. If I was doing a report card on the Attorney-General, he would get a big tick in the box that says 'poor performance' and a recommendation, like his mate when it came to the canoes, for demotion. I do not believe there is any other way of dealing with this. He has gone way over the line. He is out of order—and for that he must wear the punishment. Let see how big the Liberal government is in dealing with this one.
11:56 am
Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source
Contrary to the contribution by Senator Brandis earlier, this censure motion is about the fact that Senator Brandis's behaviour needs to be scrutinised. Senator Brandis likes the word 'erroneous'. The only problem is that he does not often use it accurately. Let us look at the most pressing example of erroneous. Senator Lambie covered the point that if Senator Brandis is being respectful then please do not be so to me. Indeed, in recent estimates he indicated he thought he was complimenting me. When I challenged that point, half his department laughed. It is common knowledge to all of us here that Senator Brandis's approach is as was described in the opinion pieces this weekend, faux respectful. There is no genuineness in how he deals with these things and often there are a blatant mistruths. I will attempt, in the time I have, to go through some of them.
Let us deal with the first: 'I have only ever said nice things about Professor Triggs.' Well let's look at this one. When the Prime Minister was addressed with the critical point here, which is the call for a royal commission to examine the long-term impacts of detention on the physical and mental health of children, the Prime Minister rejected the calls. He said:
This is a blatantly partisan politicised exercise and their Human Rights Commission ought to be ashamed of itself.
That was Mr Abbott to 3AW. Later in question time he said:
It would be a lot easier to respect the Human Rights Commission if it did not engage in what are transparent stitch-ups.
Oh please compliment me some time. Mr Abbott questioned why the Human Rights Commission had not held an inquiry when Labor was in power when hundreds of people were drowning at sea and there were almost 2,000 children in detention. But the critical point here is Attorney-General George Brandis endorsed the comments:
I entirely agree with the Prime Minister's remarks.
So he entirely agrees with those remarks by the Prime Minister and he comes in here in this faux respectful manner and pretends to suggest that he has never been critical of Professor Triggs. It is outright rubbish, as indeed are a range of the contributions that have come from the Attorney-General and all the way up to the Prime Minister.
This government has completely ignored the clarifications that were provided by Professor Triggs to her evidence from November. It became very clear that senators from the government had not even read that clarification in our last hearing, let alone read the report itself, so let us address some of those issues. The Prime Minister in question time asserted falsely that Professor Triggs had met with two Labor ministers during the caretaker period. We know that is false. So the question I raise, the question I raised in interjections earlier in this debate, is: who is feeding up this tripe? Why is the Prime Minister accepting that advice? Why is the Attorney-General accepting that advice? Why are government senators ignoring what is in front of them, for this witch-hunt?
But let us look at other matters. The evidence by Professor Triggs that was before us on the last occasion highlighted the number of occasions when she had been critical about the detention of children. She handed up this report. How many pages is it? There are 10 pages citing examples of how many times, regardless of which government was in power, she had sought to prosecute this issue, which is her role.
And of course there is the myth going on here from the government side. The government has been able to remove children from detention, and we commend it for that, but the myth is that the report is about the number of children in detention. That report is about the growing lengths of time that children have been detained. That is what the report is about, and that is what we urgently need to address. Senator Brandis should listen to Tim Wilson, of all people. He told us in the press that he had engaged in collecting some of the evidence for the report, and he reminded us all that it is about the growing length of time that children were being detained under our watch.
But let us look at another area of erroneous reporting: the story of the supposedly armed guards. If anyone has a look at the evidence, they will understand that it is very clear. There was evidence before the Human Rights Commission to that effect. The Human Rights Commission does what it ordinarily does and tests that evidence by giving the relevant department an opportunity to respond to a draft. Indeed, when the department challenged those assertions that were evidence before the commission, the commission rectified its report. It amended the report. So to come in here and suggest that the Human Rights Commission has it way wrong because it is reporting about armed guards is just rubbish—outright rubbish.
But let us look at some of the other things that this debate has—I would argue—deliberately misviewed. One of those is the nature of Professor Triggs's evidence last week. It is suggested that she was asking for an offer. That is rubbish. If you have a look at the nature of her description of why she contacted Mr Moraitis in January, this is what it is. This is from the Hansard at page 40:
And of course to ask the question why the department and the Attorney were not speaking up publicly to refute the inaccurate reports that were in that paper. I am absolutely certain that I was not—
'I was not'—
at any stage asking questions about me at any personal level or about a lack of confidence. That had never been suggested to me, ever. At that stage I was concerned about two things. One, the unremitting level of the criticism in the newspapers, which was not being responded to at all by either the department or the Attorney.
She was not asking for a job. She was asking for the government of the day and the relevant department to respond to what was occurring in this public witch-hunt.
The Attorney claims that there were not personal attacks. I invite him to read Piers Akerman and respond to that personal attack about Professor Triggs's disabled child. It was one of the worst pieces of gutter reporting I have ever read. And he suggests there were no personal attacks. Well, with respect, the Attorney is blind—outright blind.
Going then to the other erroneous aspects of Senator Brandis's contribution, I think it is important at this point to put on the record, as I have worked opposite to Senator Brandis for many years now and in many different capacities, that he has a pattern of behaviour. That pattern of behaviour is, firstly, to deliberately perpetrate misinformation. He has done it consistently, time and time again—whether you go back to the 'children overboard' affair and how circumstances were represented then or, case by case, afterwards. If I have time in a future opportunity, I will probably outline some of those. But he also has a history—again, a pattern of behaviour—of very poor judgement. Again it goes back quite some time. The one I remember was when, as Chair of the Privileges Committee, he pre-empted the consideration of the Godwin Grech matter. He was out there in the public world reflecting on Godwin Grech before we had even commenced addressing the matter. That is not the way the Chair of the Privileges Committee conducts themselves. But then, we are used to this pattern of behaviour, leading up to the way the Attorney has now conducted himself in this matter.
As Senator Wong said at the outset, Labor does not take censure motions lightly. But, with respect to Senator Brandis, there is, as I have said, a pattern of behaviour that has grown into this most outrageous incident. It is a circumstance in which it did not even occur to him or the government of today that offering—and I will be generous here—what has been perceived to be an inducement was inappropriate. This did not occur to him. He bogs himself down in a debate over whether the Australian Human Rights Commission is independent or quasi-independent. With respect, that is not the point. The point is he has behaved inappropriately and part of that inappropriate behaviour has been deliberately perpetuating misinformation. The Prime Minister did it in the House. The Prime Minister referred to two Labor ministers during the caretaker period. We know that that is patently false.
Since then we have had the government attempt to hide behind the suggestion that Professor Triggs was really asking for it. She was really after that role. It was really her asking for it. Good heavens! How outrageous! Indeed, it went so far, quite contrary to the evidence, last week with Julie Bishop suggesting that she had indeed initiated the interest in the role. There is nothing in any of the evidence—not even in Mr Moraitis's evidence—that gives that one ounce of support. There is nothing to support that at all.
I could spend a bit of time looking at what Mr Moraitis did say, because, apart from the bald assertions of Senator Brandis—actually, before I go to that, I should challenge Senator Brandis's claim that nobody asked him for his contribution. That is rubbish. He was asked by the chair, before we had the morning tea break, to put forward his views on this issue and, indeed, if I recall correctly, he spent a good 20 minutes doing so. Ahead of that, though, after Professor Triggs's opening statement, he again made a contribution, talking about the number of children who were in detention. I do not know if this was some bizarre attempt to say, 'Because I've got figures that are valid here today and they're different to the figures that were produced in this report back in November, I can dispute her on that.' We all know that comparing apples with oranges does not make a good argument, Senator Brandis. We all know that. We did not waste time asserting that in those hearings. Seriously!
Now that I come to Mr Moraitis, let me say that he was a most unsatisfactory witness. I invite anyone to simply observe the body language. The body language alone tells a story. I hope Mr Moraitis regrets that he did not tell the Attorney to go and do his own dirty work. I hope Mr Moraitis regrets that he did not do more earlier to deal with this scurrilous witch-hunt on the Human Rights Commission. I hope he does regret those things. But I look forward to the clarification he will provide us of his evidence. As I said, the government ignored the clarification that Professor Triggs gave to her November evidence, but I very much am looking forward to Mr Moraitis's clarification of his. We do not know if it was his notebook or a couple of pages of notes. We do not know when he annotated them. We do not know exactly what he said to Professor Triggs, but, on any score observing that evidence, the evidence from Professor Triggs was clear. It was consistent and it was presented in what could be assessed as a credible manner. If you look at the evidence provided by Mr Moraitis, it is a different story. His story on the inducement just does not pass the pub test. Mr Moraitis admits that Senator Brandis sent him to pressure Professor Triggs by advising that the government had lost confidence in her. He admits that he offered her a specific role which was specifically mentioned: a senior legal role that could be available to her as an alternative to her position with the Human Rights Commission. Mr Moraitis agrees that Professor Triggs's resignation from the Human Rights Commission and the offer of a senior legal role were linked in the sense that 'one would follow from another'. Mr Moraitis expects us to believe that this was not intended to act as an inducement. Please!
Professor Triggs offers a much more solid and much more convincing account of the conversation with Mr Moraitis. Professor Triggs says that her resignation and the new job were definitely linked. She said that there was no doubt in her mind that the two were connected. That is not the only hole in Mr Moraitis's story. He is even trying to claim that the word 'resignation' was not mentioned at their meeting. He says he could not recall whether Professor Triggs's resignation was discussed. 'I do not recall,' Mr Moraitis said repeatedly during last week's estimates hearing. 'I do not recall.' Once again, Professor Triggs's evidence on this point is crystal clear. She says that she is 'absolutely certain' that she was told Senator Brandis wanted her 'resignation'. 'The word "resignation" was absolutely crystal clear to me,' she said. Mr Moraitis must think that avoiding the word 'resignation' will buy him a get-out-of-jail-free card, but he is mistaken. His simply implausible evidence on this point only serves to undermine his credibility, and I suggest he stop serving the Attorney in this way and reflect on his broader credibility that the Attorney referred to earlier today.
It is no wonder that the Prime Minister has faced questions about whether Mr Moraitis's evidence at Senate estimates was truthful and it is no wonder that Mr Moraitis could not bring himself to sit up at the table or speak clearly into the microphone during those hearings. Mr Moraitis did not say much, but his body language told you everything you needed to know. I look forward to the opportunity to question him further because, as Senator Brandis indicated, we did not get anywhere near the full story in those hearings. We did not have an opportunity to bring out the full facts of this tawdry episode.
What we did hear once again was Senator Brandis and his colleagues deliberately perpetuating misinformation. What is even more bizarre was we saw it travel—so it could not just be Senator Brandis in his statement putting misinformation to our committee; it travelled right up to the Prime Minister during question time. It is seriously bizarre that this government still believes it can succeed by perpetuating misinformation that is right before your nose. The press saw it and highlighted it over the weekend. They knew the evidence that was before us. These myths that this government attempts to operate cannot and will not shield it from this exercise of completely inappropriate behaviour by the Attorney following a consistent pattern of perpetuating misinformation. He should know better and about exercising poor judgement— (Time expired)
12:16 pm
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
I too rise to speak on the censure motion today. I also would like to address the issues that Senator Collins raises in what she calls the erroneous and misleading testimony. I will go through this in detail. As a member of the Senate legal and constitutional affairs committees I very carefully went through the testimony from last week. There were no less than seven separate reasons given by the Human Rights Commission president on why the inquiry was called and four different answers about when it was called. That included five new reasons why Operation Sovereign Borders was, was not, was, was not and then was the reason and also about the supposed lack of information coming from the department of immigration. I will be going through all of those very carefully in terms of the facts, but I want to pick up a point from Senator Moore. I totally agree with what Senator Moore said at the end of her speech—that no-one still knows exactly why this inquiry was called. I think inadvertently she has absolutely hit the nail on the head in this debate.
I would like to share with my colleagues here in the Senate my thoughts on this issue. First of all, as a member of the legal and constitutional affairs committees I was not here for the November hearings because I was in the Solomon Islands observing the election. I came back and reviewed why the government had lost faith in the Human Rights Commission president and started to look at the contradictory testimony. Through the course of that I read the report when it was released. I also had a very close look at the president's involvement in the protest group on this very issue. Right from the beginning I was a little perplexed at how an independent commissioner could also be a member of a very prominent protest group and saying things, 'Prison wire and terrified kids, where better than this?'
Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source
Mr Acting Deputy President, I rise on a point of order. I would like to know if the senator is actually going to address the censure motion and, if so, defend the Attorney-General or is she going to give some other kind of commentary that is completely superfluous to what we are debating here in the censure motion.
Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source
Thank you, Senator Singh. There is no point of order. Censure motions are wide-ranging debates. Senator Reynolds is completely in order.
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
So in preparation for estimates last week I also addressed the issue that is at the very heart of this issue, Senator Singh, with the secretary of the department of immigration. He provided some very pertinent information on this, which I will also come to. My comments today here in defence of the Attorney-General and the government have absolutely nothing to do with gender, as has already been alleged by those on the other side—that our position has been misogynistic and gender-based. I absolutely refute that.
My questions then and today went to the heart of two things: why this inquiry was called and when it was called. To me they are the two most salient questions in relation to the government questioning on this issue and why the Attorney-General lost confidence in the President of the Human Rights Commission. When I looked into this—before the hearing last week, during the hearing and afterwards—I found it was a complete Gordian knot. It was almost impossible to determine what the answers to those two questions were. As I said—and I will go through them in a minute—there were seven separate distinct and contradictory answers as to why it was called and there were four distinct and contradictory answers as to when it was called. Then thrown in, as a bit of an additional bonus, for the first time in the evidence last week we had that Operation Sovereign Borders was actually a factor in it being called. Again I will come back to the detail on that shortly. That was me going into the inquiry and the hearing last week trying to make sense of two very basic questions.
As has been asserted on the other side, getting frustrated at not getting a consistent answer from someone giving evidence is very different from playing the person and from personal attacks. I witnessed no personal attacks from those on my side inquiring, but they were getting frustrated with the ever-changing answers and testimony of the Human Rights Commission.
Let us have a look at a couple of these questions. The first one I had a look at is: when did the HRC decide to launch an inquiry into the welfare of children in migration detention? You would think, given the importance of this issue, it would be a simple response. But I had four answers: the first answer was in February-March 2013; then, in response to a second question, they decided on an inquiry in June-July 2013; then the answer changed to November-December 2012; and the fourth answer, which I had to split into two, was in her letter of clarification on 10 December. The first answer was, 'We decided to conduct a review on 26 June 2013', which presumably was just a review or an examination under their act, and then almost in the next paragraph of the same letter she said that they had decided to conduct an inquiry in December 2013. By the end of the hearing, last week, I had four different answers to a very simple question.
If that was not confusing enough to those of us listening to this evidence, we then endeavoured to work out the reasons behind the decision to conduct the inquiry into the welfare of children in immigration detention. Again, something that should have been quite simple was clearly not answered correctly or clearly in November, which caused the government to lose confidence in the president. The first answer was, 'The increasing number of children being held in detention in 2012 and 2013 and the policies of the new government not having an effect on the numbers prompted the inquiry.' I had to read that about three times. Here she was saying that the policies of the government were not impacting—
Senator O'Sullivan interjecting—
Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source
Order! Stop the clock. A point of order, Senator McEwen.
Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source
Mr Acting Deputy President, I raise a point of order. I know Senator O'Sullivan has expressed in the past his preference to hear male voices only, but I would ask him to cease interjecting Senator Reynolds.
Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source
There is no point of order. Senator Reynolds.
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
This might be uncomfortable reading for those on the other side, particularly for Senator Collins who said that she wanted the facts. Well, these are all facts as recorded in Hansard.
Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source
Inconvenient facts.
An honourable senator interjecting—
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
Absolutely. First of all, in November, the president said there were an increasing number of children in detention; then, the second reason was that the policies of the new government were not having an effect on the numbers. That one really floored me, because clearly Operation Sovereign Borders was a change of policy, and it was having an impact. That is only the first answer.
The second answer, on 24 February this year, said 'The high numbers of children in detention, the increasing amount of time of children in detention and the 10-year review of the 2004 report.' I thought that was in the president's opening statement. A high number children: yes, although they were decreasing. The increasing time in detention: as the president and all of those opposite would know, it is axiomatic. The fewer children in detention, the longer the average time they will be in detention. I thought, 'Has she called an inquiry?', because we are actually reducing the numbers of children, and the secretary of the department of immigration confirmed that that was the case.
Then there was the snapshot report, which is very important because that features again later. That was the second point. There are three points. You will note that not in one of those three reasons provided in the opening statement was there Operation Sovereign Borders or a drying up of information—that was on page 7 of Hansard. Then we get to page 20 of Hansard and the answer changes again. The president said, 'Once Operation Sovereign Borders got underway, it was clear that information from the department of immigration was not as readily accessible.' Therefore, yes, Operation Sovereign Borders was a factor because of the drying up of information.
There is a fourth answer. On page 20, as well, in Hansardso it was not even another page of Hansard—the answer was, 'No, it was not Operation Sovereign Borders'. A bit further down, on the same page of Hansard, guess what? It was Operation Sovereign Borders that was an impact. We have not even got to the end of that first page. She then said, 'No, it was not Sovereign Borders,' and, just to finish it off, on the same page of Hansard, she said, 'Yes, it was Operation Sovereign Borders.'
Honourable senators interjecting—
Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source
Order! Senators to my left and to my right.
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
While that may have made a lot of sense to those opposite, it was impossible to determine a new cause, Operation Sovereign Borders. Yes, it was; no, it was not, yes, it was; no, it was not; yes it was in one page of Hansard. Do not forget, it was not just whether Operation Sovereign Borders was a new reason that had never come up before. It was also Operation Sovereign Borders, because they were not getting the information and the information was drying up from the department of immigration.
We had seven different answers in terms of the drying up of this information—an issue that had never come up before and had never been raised with us to the best of my knowledge. We ask again: when did this occur? When did this drying up of information occur? Answer 1: it was after the implementation of Operation Sovereign Borders, which—as everybody here knows—was late September 2013, after the federal election. Answer 2: in December 2013 the information started to dry up. Answer 3—
Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source
Senator Reynolds, please resume your seat.
Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source
Mr Acting Deputy President, I raise a point of order. We are debating a censure motion. It is a motion that has clearly pointed out five points, none of which Senator Reynolds is currently addressing. I ask you to please ask Senator Reynolds to address the censure motion that we are currently addressing, if she is going to speak in this chamber on this motion.
Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source
On the point of order, Mr Acting Deputy President: Senator Reynolds is entirely relevant to the motion before the chair. The motion before the chair goes directly to the lack of confidence that the Attorney-General has expressed in the chair of the Human Rights Commission. And what Senator Reynolds is doing very eloquently, I might say, is to provide the context in which the Attorney-General has come to the view, which the Labor motion seeks to criticise.
Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source
There is no point of order. Senator Reynolds.
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
I know those opposite really do not like to hear the facts, but these are the facts—and I am very happy to defend the Attorney-General.
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
Ah, you mentioned him finally!
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
Given it took Senator Wong, who was there on the day, till four o'clock in the afternoon to ask the Attorney a question, that is a bit rich.
Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source
Mr Acting Deputy President, I rise on a point of order. Interjections are disorderly, and the Leader of the Opposition in the Senate continues to interject in relation to a debate about a motion which is the most serious motion that can ever be considered by this chamber, so I ask you to call Senator Wong to order so that Senator Reynolds can provide her remarks to the chamber in silence.
Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source
I remind all senators that interjections are disorderly. Senators are entitled to be heard in silence.
Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source
Thank you, and through you, Mr Acting Deputy President, I would like to thank Senator Wong for extending me different courtesies than I extended to her when she spoke on this same issue.
But, coming back to the very inconvenient truth and some of the facts: we have here a new issue arising altogether, that of the drying-up of information from the department of immigration pre and post the election. There were seven flip-flops on this in the one day. First of all it was post 18 September that the drying-up started. Then it was in December 2013. Then we had this extraordinary flip back to before 17 September, during the caretaker period. Then, even more extraordinarily, the president said: 'Actually the information started drying up before the caretaker period, and we'd been noticing a drying-up of information from the department before caretaker'—that is, under the previous government. Then, in answer to more questions, the president said that she had in fact written to the secretary of the department of immigration on 17 September 2013 about this drying-up of this information. We then said, 'Was that in relation to Sovereign Borders?' 'No. It wasn't in relation to Sovereign Borders or to this current inquiry. It was relating to the snapshot report.' The next flip-flop on this was that the drying-up of information happened on 5 August. Then it went back—answer No. 5—to after 7 September. Then it flipped back to after 18 September. Then, extraordinarily—and I have to read this one out because it left me completely confused—it was presumably during the caretaker period but it was actually after that as well. That is somewhat confusing. So here we have seven different answers on when the information dried up.
The letter that went to the secretary of immigration was not in this time line. The president had provided a comprehensive report on the time line of all of the correspondence that had gone from the HRC to government and to the department of immigration. Over the course of the testimony, we found that there were at least two pieces of critical correspondence that were not listed in here, including the one to the secretary of the department of immigration. Interestingly, remember it was 17 September when the president wrote to Mr Bowles about this drying-up of information for the snapshot report. But, in the snapshot report itself, it says that the information in fact was received from the department of immigration on 16 September, a day before she wrote to the secretary of immigration. So what remains completely unaddressed yet is this. She said that, once Operation Sovereign Borders got underway, it was clear that information was not as readily available. Well, that has been comprehensively refuted in her own testimony that day, and it is still not clear why it was called and when it was called, as Senator Moore so rightly said.
I am also very supportive of the Attorney-General and his actions and those of the Secretary of the Attorney-General's Department. One of the things that became very clear in the estimates for Immigration the day before, and then in this inquiry, was that the Human Rights Commission had a range of issues that were not addressed that should have been addressed in the report, on basic, fundamental natural justice and procedural rights. The Secretary of the Department of Immigration and Border Protection confirmed this last week. I would like to read out now his response in the report. He says, on 10 November:
… the Department has already identified a wide range of concerns regarding the manner in which evidence and information provided to the Inquiry has been evaluated and utilised …
Whilst the Department acknowledges that the Commission has made some substantial changes to the findings and has also made some changes to the final report, I note that these changes appear to only partially address the specific examples raised …
What were those specific examples he raised in the Human Rights Commission report on such an important issue? Claims not affording procedural fairness or right of reply; untested claims and subjective observations; overreliance on the commission's own experts; little or no weight afforded to policy and procedure of the department and its contracted service providers; and dismissal of evidence provided to the commission. For those who have not yet read the Department of Immigration and Border Protection's submission, it absolutely brings into question this whole report, in my mind, due to lack of procedural fairness and equity.
Let's face it; the other issue is: why did we need this report? You could ask any Australian: 'Is detention a good thing for children?' Of course it is not. We had a report 10 years ago. We all agreed then that detention was no place for children or for adults. We stopped the boats, we closed the detention centres and there were no children left in detention. I think the biggest shame in all of this is that those opposite have been playing the man—that is, the Attorney-General and the Secretary of the Attorney-General's Department—when the facts are very clear. We need to get back to—and I would ask all senators in this place to get back and have a look at—the facts of this case.
The facts are that we currently have seven different reasons from the president and her office about why it was called. We have four separate and distinct reasons for when it was called. Last week—and this has remained untested in all of the other colour and movement on this—Sovereign Borders was, was not, was, was not and then was a factor, and there were seven different answers about when this supposed information dried up. These are the things that I think the Senate should now be pursuing to get clarity on this issue. I also believe that these absolutely demonstrate why those on our side were frustrated with the evidence that was provided in November, which caused the Attorney-General and the government to lose confidence in the president. Again, nothing that I heard in that hearing on examination of the testimony provided any clarity on those two key questions. In fact, what I heard further complicated them. So I very much support the Attorney-General and the position he has taken on this issue, and I would ask all of us to look at the facts and the issues.
I am a very strong supporter of the Human Rights Commission and of having a Human Rights Commission, but it must be politically impartial. We have a right to expect that it will on occasions be critical of the government in discharge of its statutory function. However, the commission must maintain the confidence of both sides of politics, and it must not be politically partisan. I believe from my review of the evidence that the only possible conclusion from Professor Triggs's inconsistent evidence last week is that the decision to hold the inquiry into children in detention was politically partisan. It saddens me to say that, but the evidence on the key questions that count, I think, clearly demonstrates that it was a partisan report on a critical issue for this country.
I support the Attorney-General and the actions he has taken, and I strongly support and endorse the actions of the Abbott government to stop the boats, to stop people drowning and to get kids out of detention.
12:39 pm
Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source
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.
12:57 pm
Nick Xenophon (SA, Independent) Share this | Link to 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.
1:05 pm
Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source
I rise to speak in closure on the debate and I want to make some very brief points. The first point I make is that the government has manifestly failed to defend the Attorney-General, Senator Brandis. The consistent approach from government senators has been to continue the attack and criticism of Professor Triggs, and I think that demonstrates the paucity of the defence of the Attorney-General.
The second point I make is in response to the Attorney-General's proposition that he is entitled to express no confidence in the President of the Australian Human Rights Commission. I say to this chamber that his actions and the actions of this government have gone well beyond that. What we have seen is a partisan, nasty, undignified and personal campaign to oust the president of the commission, to oust a statutory office holder. This Attorney-General has been complicit in it and he has been a party to it.
The next point I want to make is a timing point. It is important to note when on the uncontested evidence the meeting between Secretary Moraitis, doing the bidding of the Attorney-General, and the President of the Human Rights Commission occurred. The report in question was handed to the government in November 2014. The discussion with the secretary in which he, at Senator Brandis's request, indicated no confidence, offered another job and, on Professor Triggs's evidence—which I certainly think had more weight—encouraged her to resign occurred on 3 February, and the report was on 11 February 2015. So we had the Attorney-General of Australia seeking to pressure the President of the Human Rights Commission to resign before the report was made public. When she did not resign, the avalanche of attacks began; and they continue. This government and its Attorney retaliated directly by unleashing the attack dogs from the Prime Minister down.
I say, and we say, the Attorney-General should be censured. He failed to carry out his role, as Attorney-General, of defending the Human Rights Commission from political attack. In fact, he joined in on the attack, which was aimed at intimidating the president. He sought to subvert the statutory protection of the president's position by pressuring her to resign and by offering an alternative position. If he had succeeded, this would have seriously damaged the independence of the commission. I ask the chamber to consider what message this would have sent to other agencies in his own portfolio, like the Australian Federal Police, the Commonwealth Director of Public Prosecutions, the Australian Law Reform commission and others. The message would have been, 'Toe the line or your job will be on the line.' This is not the conduct we expect of the first law officer of the land. It would have created a chilling effect for all independent agencies in this nation, from the corporate regulators to agencies charged with protecting the rights of consumers.
The nub of the Attorney-General's argument is that he excuses his conduct by saying that the commission is not a chapter III court, therefore it is not independent of the executive government. This justification for these political attacks and his conduct will certainly be startling news to agencies like the Australian Securities and Investments Commission, the tax office and the Competition and Consumer Commission, whose independence from political interference is so important. I am extremely disappointed that Senator Xenophon has swallowed this defence, because the Law Council of Australia, the Bar Association and lawyers across the country have not swallowed this defence. It is a spurious argument.
We say: Senator Brandis's conduct shows he does not understand his role as Attorney-General. It shows he does not understand how to behave. It shows he is not fit to hold this office, and this Senate should censure him. This Senate should stand as a bulwark against this excess and abuse of executive power that we have seen in relation to a statutory body. We should support the independence of the commission. This minister should be censured.
Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source
The question is that the motion moved by Senator Wong be agreed to.