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December 2017 – January 2018
When the politics got personal
Gillian Triggs does not like the word “naive”, at least not when it is applied to her. She is polite, but clearly annoyed at the suggestion. “I mean, I am a 72-year-old grandmother. I’m not naive. I don’t think I’ve ever been particularly naive.”
Yet when she gave up one of the country’s best jobs in academic law to become president of the Australian Human Rights Commission (AHRC) in 2012, she thought it would mainly be about putting something she’d been saying as an educator into practical effect: advocating for Australia’s domestic law to reflect its international human rights obligations.
She was at the top of her game – holder of the Challis professorship in international law and about to be reappointed as dean of the Law School at the University of Sydney. It was a lot to give up.
Still, the idea drew her. “There’s that terrible adage. Those who can, do. Those who can’t, teach. That ran through my brain a bit.”
The law involved, she knew, was not very complicated – “international law 101” – and the facts were clear. What had not occurred to her was that none of that would matter, or not very much, to her ability to succeed in the job. It was a culture shock.
In universities, Triggs had been part of a courteous environment that ran on broadly agreed values and rules. “Then you find yourself working with politicians you can’t possibly agree with, but who are powerfully ideological,” she says. “I was not prepared for the political and personal attacks. Frankly it didn’t occur to me.”
Things started quietly enough. Then, in September 2013, just over a year after she became AHRC president, the Abbott government was elected. It will come as a surprise to learn that Triggs voted for Abbott. Unsurprisingly, she now thinks it was a mistake. For the next four years Triggs became one of the Coalition’s favourite targets, and there was what she describes today as “an eight-lane highway” of information and attitude flowing between the cabinet room and the Australian newspaper.
Read the thousands of words on Triggs in the Australian during her five years as AHRC president and you would think her a featherbrained bleeding-heart leftie, who for some personified “the nanny-state moralising and sanctimonious criticism of mainstream values by the elites”.
It’s a potent example of the distorting lens of journalistic partisanship, because Triggs was neither a radical nor a left-winger in any conventional sense.
As an academic lawyer, first at the University of Melbourne and then in Sydney, she frustrated some of her more political colleagues. She was not inclined to sympathise with gendered or politically nuanced views of the law. She liked the black letters of statute and could be, some remember, “bull-headed” and unbendingly dismissive of alternative, less conservative views. One former colleague says, “It was not so much that she didn’t bear fools gladly. She didn’t bear things she didn’t like or understand too gladly.”
While her expertise was in international law, Triggs was not a human rights lawyer. Her speciality was in issues such as the drawing of international boundaries, which led to her only previous experience of being at the centre of political controversy.
As a consultant for the law firm Mallesons Stephen Jaques in the late 1980s, Triggs worked for oil and gas companies on the ownership of the petroleum resources of the Timor Gap, which sits between Australia and what would become Timor-Leste. In this work and in later academic articles, she supported successive Australian governments’ desire to draw the boundary to their advantage. Her position was right in law, she says, although she’s now “overwhelmed by the ethical position of one big wealthy country to a very poor one”.
“People who see my reputation now would assume that I would take exactly the opposite position,” she says, but she was “a conservative middle-of-the-road lawyer with no special interest in politics”.
Today, Gillian Triggs is sitting in her immaculate home office on the top floor of a South Melbourne terrace. After years in Sydney she has returned to her hometown, mostly for family reasons. A few volumes sit on her desk, including her own weighty textbook on international law. A cartoon from her time at the centre of political dispute hangs on the wall. She has a collection of about 40, and plans to frame them all.
The number 1 tram rattles past her door and can take her directly to the city’s arts precinct, which she loves, or to the University of Melbourne, where she has recently been appointed as a vice-chancellor’s fellow. It is good to be home, where she says “people actually believe in human rights … they speak the language”.
Has she been radicalised? She laughs a little. She is not going to be “burning things down”. Of course not. Poised, ladylike, presiding over tea and biscuits, she doesn’t look like a radical.
Triggs compares herself to Sir Ronald Wilson, who for most of the 1990s was president of what became the AHRC, and was at the centre of the first wave of the history and culture wars. He had been a conservative High Court judge, but went on to become co-commissioner of the Stolen Generations inquiry.
“He was calling it genocide, and that was a very big move. And, of course, he was criticised roundly for it,” she says.
The job does that to you. “You start off over here using very, very careful language, and you find yourself faced with the facts and the law, and you reach a conclusion. Perhaps you surprise yourself … [When] I reached a conclusion that I thought was inescapable I spoke up for it. And if that’s the equivalent of being radicalised, then I’m radicalised.”
Australia, alone of Commonwealth countries, does not have a bill of rights. What is more, our statutes do not, for the most part, reflect our obligations under international treaties. Our rights and freedoms arise from the proud tradition of the common law – the history of decisions made by judges through the centuries. In Triggs’ view, that tradition should bind both parliament and judges.
Not so long ago the High Court would interpret the law with the assumption that parliament intended to comply with international obligations. Now, Triggs says, judges tend to look narrowly only at statutes, which means that in the absence of domestic laws reflecting international obligations there are few restraints on government power and few guarantees that human rights will be respected. It also puts us out of kilter with the development of the law in other countries. For example, the Papua New Guinea Supreme Court declared the Manus Island detention centre was unconstitutional because it involved detaining people without trial.
“So we have a new country and a new constitution that is more modern than our own.”
Triggs says that Australia is disturbingly tolerant of breaches of human rights. “There seems to be a passive acceptance that if the government wants [certain] powers it should have them.” She is in favour of a legislated charter of human rights at the federal level. There is no chance, she believes, that the Constitution could be changed to include a bill of rights. It would be too politically difficult. Once again, it should be for federal parliament to legislate, such as has already been done in Victoria where the Charter of Human Rights and Responsibilities Act requires the government and its agencies to behave in a manner consistent with 20 fundamental human rights set down in the statute. Black-letter law to reflect, as she puts it, the long tradition of the common law.
As AHRC president, what progress did Triggs make towards these aims? Very little, she says. She made mistakes, certainly, though in some cases only perfect foresight could have led to different decisions. Her every real and perceived flaw was pounced upon and magnified in ways she had not anticipated. She had expected the politicians to understand the Constitution, and the statute under which the AHRC did its work. Was that naive, or merely reasonable? Either way, she was disappointed.
Given her lack of speciality in human rights, Triggs was not an obvious candidate for the AHRC presidency. She believes that her nomination came because of her broad skills in international and commercial law, and her reputation for conservatism. Her predecessor, Catherine Branson, had just completed a report on the internment of people smugglers who claimed to be children. Triggs says that the Labor government was looking for someone who would take “a strictly measured, legal approach and not be a sort of public bleeding heart”.
Attorney-General Nicola Roxon and her successor, Mark Dreyfus, were respectful of the AHRC’s independence, she says. They might suggest areas of inquiry, such as elder abuse or homelessness, but they did so “in the lightest of possible ways”.
Meanwhile, Triggs and her staff were in regular discussion with ministers for immigration Chris Bowen and Tony Burke, who were “accessible, courteous … [and] acting in a humane way and moving the children through the system. Not fast enough, of course, but they were moving.”
So why, despite her courteous professional dealings, did she make the personal decision to vote for an Abbott government?
Triggs had been a swinging voter throughout her voting life. As a young woman she was excited by the Whitlam government, and comfortable with the Fraser government that followed. Later, as wife to Australian diplomat Alan Brown, she met Paul Keating. Triggs was impressed by his knowledge about clocks (her family were clock makers) and the Napoleonic era, and supported his policy of working more closely with Asia.
What about John Howard’s tenure: the culture wars, the Tampa controversy and the children overboard affair? As if to confirm her lack of political awareness, Triggs says, “I missed a lot of it.” She was living overseas with her husband and absorbed in writing a textbook, so her head was buried in the finer points of the law of the sea and treaties.
In 2013 it seemed to her that Labor, riven by the battles between Kevin Rudd and Julia Gillard, was “not really competent to go forward”. Abbott, on the other hand, “had a strong sense of leadership … and he had credibility and authenticity. He had what I now see as an overly simplistic approach to issues, but nonetheless he had a clear sense of direction. I didn’t like his rejection of evidence in consideration of climate change. But I did think that some of his arguments about economic dynamism were important.”
What she hadn’t realised, she said, is that the Abbott government and the conservatives in his cabinet were “ideologically opposed to human rights” and indeed to the very existence of the organisation that she led.
Her first indication of trouble was in June 2014, when she published a report into the case of John Basikbasik, a refugee who had been convicted of the brutal manslaughter of his de facto spouse. Having served his sentence, he was interned at the Villawood detention centre. This amounted to unlawful arbitrary detention, wrote Triggs. It was hardly a popular cause.
The government’s reaction made her realise that “I wasn’t dealing with rationality. I was dealing with ideology. And no matter how I explained that somebody who’s completed a criminal sentence is entitled to be released unless they are charged and prosecuted with something else, it made no difference … I realised that I was dealing not with somebody who had any understanding of the law but somebody who was going to use a populist position to attack the [AHRC] as a whole.”
Earlier in 2014 Triggs launched an inquiry into children in immigration detention. When the report was released in November that year, the attacks were stepped up – not so much over the content but its timing. The Abbott government said it was a partisan exercise: why had she not started the inquiry under Labor?
Today, Triggs says that had she realised how the timing of her actions would be used against her, she would have launched the inquiry immediately on taking office, following on from the report just completed by her predecessor. But that’s the benefit of hindsight.
Triggs’ timing was also complicated by the fact that Prime Minister Gillard had announced in January 2013 that the election would be held in September – meaning that for months the country was effectively in election mode. Triggs thought launching an inquiry in that period would have been seen as an interference in the electoral process.
After the election, she discussed with her fellow AHRC commissioners the prospect of mounting an immediate inquiry, but the feeling was that the new government should be given a chance to continue the process of lowering the numbers of children in detention. There were about 1100 in detention when the Coalition took office, Triggs says. Four or five months later, the numbers hadn’t decreased considerably and in the meantime discussions with the government were not going well.
Immigration minister Scott Morrison was not so bad. He would at least talk to her, engaging to the extent of having “a bit of toing and froing. He would counter what I’d say and I’d come back … He was Teflon. I don’t think I had any impact on him, but at least there was engagement.”
When Peter Dutton replaced Morrison in late 2014, after the release of the AHRC report, even the engagement stopped. Dutton would listen to her without interruption, then look at his watch and end the appointment.
“Now what is distressing, of course, was that I should be accused of political bias … especially having voted for the government, which is highly ironic.”
The problem being that her antagonists made it almost a point of pride that they did not read her report. In private and in public, she was treated with contempt.
From then on it was a pitched battle, with Triggs the government’s favourite object of attack. There were numerous occasions over the next few years when private conversations between Triggs and senior ministers were leaked to the Australian, even to the level of particular phrases she had used.
Commission documents that should have been kept confidential also ended up with the Australian.
Triggs knew its editor-in-chief, Chris Mitchell. She had lunched with him as dean of the law school, and thought him “quite well informed, courteous, and I thought he would at least have an open mind. Of course, he and his mind just completely closed.”
She was relieved when Malcolm Turnbull replaced Abbott in September 2015. Turnbull and his wife, Lucy, had been generous benefactors to the Sydney Law School and had taken a keen interest in its work.
“I had reason to expect that they were liberals in the best sense of the word and I breathed a sigh of relief … I thought, Well, we’re moving away from those ideological Abbott years and we’re now moving into calmer waters where they may not agree with what I’m arguing for but they are more likely to treat it with respect.”
Meanwhile, the vituperation against her rolled into the debate about section 18C of the Racial Discrimination Act, and her handling of relevant inquiries. Today, Triggs says she is in favour of changing the law. The Federal Court, she says, had been “utterly consistent” in making it clear that only very serious abuse and vilification would breach 18C.
“I think that rational beings could have sat down and amended the words of 18C to reflect the jurisprudence of the Federal Court, which would have been an impeccable thing to do.” The political climate made such rational discussions impossible.
She had a cup of tea with Turnbull in his first weeks as prime minister and “a very congenial conversation”. But within weeks Turnbull had declared “discourteously, at a minimum” that Triggs would not be reappointed, even though she’d already made it clear to the attorney-general that she had no intention of going beyond her five-year term.
“I knew with this government I couldn’t achieve anything … and carrying on was ultimately detrimental to the commission.”
Gillian Triggs had, by her own admission, made mistakes, particularly in the theatrical combat of Senate Estimates committees. Her approach could be described as idealistic – or naive.
“I believed in the democratic process and … was fully respecting [the Senate Estimates committee] and giving them full answers. The difficulty with that is that, inevitably, you don’t know the questions and you have to wing it a bit with the answers. Then you’ve got no legal adviser there to tell you when to stop or to correct you. And it’s theatre. And it’s very, very dangerous and on a couple of occasions it was dangerous for me.”
In April 2016, Triggs gave an extraordinary interview to journalist Ramona Koval, which was published in the Saturday Paper. Triggs was incautious in her remarks.
She said parliamentarians were “seriously ill-informed and uneducated”, and that in an earlier, nine-hour Senate Estimates hearing she could have “responded and destroyed them – I could have said, ‘You’ve asked me a question that demonstrated you have not read our statute. How dare you question what I do?’”
Inevitably, at the next Senate Estimates hearing her antagonists had a copy of the interview and quizzed her on it. Under pressure, she claimed to have been misquoted – a serious slur on Koval’s professional reputation. Triggs retracted when the Saturday Paper made it clear there was an audio recording of the exchange. That, in turn, allowed the chair of the committee, Ian Macdonald, to suggest she had deliberately misled the Senate.
Today, Triggs says she was confused and referring to the headline on the article, which she believed was misleading and unfair, rather than the text. But she is still less than clear about how she ended up in such trouble. She claims she hadn’t realised the nature of the interview. “It is my view that the interview was conducted on the basis that it was a background piece on the Senate Estimates processes. I had no idea it was going to be a question-and-answer and absolutely literal and taken in the way that it was. But that was my mistake. I should never have agreed to that interview.”
When asked about this, Koval showed the Monthly a copy of the email she sent to Triggs setting up the interview. Koval had been clear about the format. It was no ambush.
Perhaps the better explanation of Triggs’ incaution lies in her own description – in a different context – of how she responds to pressure. “I rarely sit around feeling sorry for myself and I never go into depression … I never have in my life. I’m always active … And if I am really upset about something I’ll move and do something. Yes, I move very quickly. I’m on the phone and I’m marching into people’s offices.” It is a crash-or-crash-through approach, or else, as she puts it, she moves around something. In the case of the Koval interview she was, as she told the senators later, “very frustrated” by the senators’ refusal to read her reports.
Given her time again, Triggs says she would forget the democratic ideals and do what public servants do: take most of the questions from Senate Estimates on notice. Never in five years, she says, was a question taken on notice mentioned again or followed up. “They are not interested in the answer. They’re only interested in the theatricality of it and they’re only interested in promoting themselves.”
She might have been more cautious, she admits – launched the inquiry straight away, been more self-protective at Senate Estimates – but her approach to the substantive issues was inevitable. The AHRC is not about her. It is like a machine, she says, rolling on in accordance with its statute and the facts.
She acknowledges, though, that the AHRC has now become so politicised it is difficult for it to do its job. It has also had its budget repeatedly cut. She does not criticise her successor, Rosalind Croucher, but observes that today’s commission is “very quiet”. The only commissioner who is still in the media is the Labor appointee, race discrimination commissioner Tim Soutphommasane. “Unfortunately, this government sees anybody appointed by the Labor government as anathema.”
Despite it all, Triggs says she does not regret taking on the job. She has now had four months to recover and reflect on what she describes as the most difficult time of her professional life. She enjoyed the public-facing aspects of the job (Senate Estimates aside), addressing audiences across the country on human rights, and collaborating with colleagues internationally.
The job broadened her, she says, in a way that academia could not. She garnered a new appreciation of how little the work she had devoted most of her life to – academic research – matters in the public realm. Parliamentarians need better education. Academics need to get better at putting their research into plain language, and researching topics that matter. She thinks government “could rightly demand” that universities do more relevant research, and work harder at communicating the results to a general audience.
As for herself, she hopes to use her new insights to write a book that will both sell and advance the cause that originally led to her taking the job – reflecting international obligations in domestic laws. It will not be a “kiss-and-tell gossipy book”, she says. “I don’t want it to be about me. I want it to be about the key challenges for Australia in complying with its human rights obligations.”
Is she personally scarred by what she has been through? At first, she denies it, saying she inherited from her father a toughness that allows her to sleep soundly even when things are at their worst. The attacks, she says, never got under her skin.
And yet, as she stands at her front door, she admits that part of the reward of coming home has been to reconnect with her roots in the wake of what was “perhaps, in a way, a traumatising experience”.
In the end, she knows she did her best, acting in accordance with her principles and her training. “I think I had the respect of the profession and of many in the public arena. Friends and family … that’s very comforting, to know that you’ve got so many people who understand what you were trying to do, even though somebody wiser than me might have gone about it differently.”
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