Incoming Australian Human Rights Commission President

Holly Kendall in conversation with Gillian Triggs
Professor Gillian Triggs has been appointed as the new President of the Australian Human Rights Commission. Right Now’s Holly Kendall met with Professor Triggs to discuss the experience she brings to the role, the challenges she faces and what she hopes to achieve.
Professor Triggs was an advisor to the Dallas Police Department, a commercial barrister, Project Director at the Asian Development Bank, Director of the British Institute of International and Comparative Law in London, the Australian Representative on the Council of Jurists for the Asia Pacific Forum for National Human Rights Institutions and most recently the Dean of the Sydney University Law School.

Right Now: Thank you for being with us today. What experiences have prepared you for your role as President of the Australian Human Rights Commission?

Professor Gillian Triggs: Perhaps I should start by saying that I am a generalist international lawyer. I have always been an international lawyer since the late ’60s when I finished my law degree. Human rights law then was really at a very early stage. Either as an academic or a practicing commercial lawyer you really didn’t come across this kind of work. Human rights lay in the higher realms of the theory of law rather than anything practical. So it took me many years before I was able to work in this area.

I saw the importance of legislation as a mechanism for a change in culture.

My background, that I hope prepares me for this job, is a lot of work on the international human rights treaties and developing courses with the Asian Development Bank on training in human rights in Cambodia, Thailand and Indonesia.

Something that was important in my life retrospectively was my first job with the Dallas Police Department. There I was Advisor to the Chief of Police on the 1964 Civil Rights Legislation in the United States, which dealt with non-discriminatory employment policies. These were being adopted by the Dallas Police Department. In that context I saw the importance of legislation as a mechanism for a change in culture, within Texas in this case, but which really did start to embed a culture of civil rights within that department. So as a young lawyer, I was interested in the way that legislation can change a culture within a country.

What do think your biggest challenge will be as the President of the Australian Human Right Commission?

I think something that I want to achieve is a closer understanding of international human rights and their integration into Australian law. I think we have not integrated that law as well as we might have done and the Commission is really the lead body that hopes to achieve that in Australia. We are hampered by the relatively limited treaties that are scheduled to the Australian Human Rights Commission Act 1986 (Cth). The mandate of the Commission is limited. We also haven’t introduced legislation, for example, to give effect to the International Covenant on Civil and Political Rights. When we are able to integrate those treaties through legislation, then I think that will be a big achievement for Australia.

I think that over time we will have a greater understanding of what human rights can do for integrating basic standards into daily Australian life but at the moment Australians seem rather fearful of it and many of our political leaders are opposed to it.

The other [challenge] is the acceptance within ordinary Australian life of basic human rights. As an example, I’m not a football follower, but I have been listening to a radio interview this morning with a footballer who was charged with making a racist comment while playing the game. What interested me was not so much that he was defending himself against the charge, but the vehemence with which he was doing so. He said that he was defending himself against this charge because he so deeply abhorred racist remarks in sport and that he was going to do everything he could to defend himself against what he would see as a very serious slur on his reputation. Now that is the integration of human rights standards in the daily life of Australia. I think we need to continue that work.

Considering that the Honourable Catherine Branson has described the failure of the National Human Rights Consultation to result in a bill of rights as “disappointing” what do you think is the next step in this process and what outcomes will you seek to achieve as President?

It is a continuing process of education and consensus building, so that in due course we have a stronger community and political commitment to some form of bill of rights. There is strong opposition to it and, of course, in a democratic system such issues must be respected. I think that over time we will have a greater understanding of what human rights can do for integrating basic standards into daily Australian life but at the moment Australians seem rather fearful of it and many of our political leaders are opposed to it.

In that climate I think the better approach for me as President is to work on the educative role and on the ground in a sense, working with communities, schools, business, and government bodies to ensure that they understand what human rights principles are.

As a practical matter, the reality of a bill of rights is sometime ahead of us. One of the things that really does worry me is that we are the only comparable common law country that doesn’t have a human rights act. I think that isolates us from the evolving jurisprudence of other countries, particularly the United Kingdom, the whole of Europe, New Zealand, Canada, the United States and of course many other countries that are not common law countries that have bills of rights. A charter is not the only answer to the implementation of human rights, but for us to be so isolated from that evolving jurisprudence is a potential problem for Australia.

In a 2007 interview with the Justinian you stated that the one thing you would change about Australia was its immigration policy. Given that Australia has not made much progress in that area what key changes are needed to ensure that asylum seekers and refugees are treated humanely?

Under this government there has been movement, there is a very strong attempt to get children and families out of mandatory detention and into community detention. I think that is a very important improvement.

As an international lawyer I am concerned about the mandatory and indefinite detention of people who might otherwise be entitled to refugee status, but are seen by the government as creating a security risk. I can understand that of course the government has a national interest in determining who is a security risk, but as a lawyer I’d have to say that those people have the right to some proper review of that decision, so that the accuracy or otherwise of the intelligence information can be tested. In an open democracy that is something that we really need to look at and I know that the Commission is concerned about that element of our treatment of asylum seekers and refugees.

I don’t think the intent is to be paternalistic, but we clearly have to find a solution that protects children or families against violence.

The government has recently passed the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012. The government has been criticised as failing to listen to Aboriginal communities. Is this yet another example of a paternalistic policy?

Well I certainly wouldn’t use that term and I honestly do not believe that we are paternalistic in our approach. There is a profound concern in the Australian community about all the statistics that we have in relation to Aboriginal Australians.

I don’t think the intent is to be paternalistic, but we clearly have to find a solution that protects children or families against violence. We have to manage it somehow and we are struggling to find the way to do it.

My understanding of the new legislation is that it is designed to allow greater community participation in the solutions that might be appropriate within that community. In other words it is not a “one size fits all” piece of legislation. I think that is a very important initiative. I know that the express purpose of the legislation is to ensure that the communities do play a participatory role.

Obviously the Commission is concerned that the legislation be applied in a way that is not racially discriminatory. This is always the tipping point; the difficulty of implementing this legislation.

It is clear that very localised participation is vital; that the people themselves have to buy into this.

For the first time, Australia will soon have a national Children’s Commissioner. What do you see as priority issues for that new role to address?

It is exciting that we are now going to have a commissioner for children’s rights. It is interesting that the Convention on the Rights of the Child is one of the most frequently ratified and applied international treaties in the human rights area.

I will be consulting about where the priorities lie, but I would have thought violence against children, sexual offenses in relation to children, would be issues that stand out.

Personally, I very much look forward to trying to understand how we can achieve and ensure that Indigenous children have access to first class education. I can’t see any way out of the institutionalised difficulties for these young children except education.

Australia is often described as a middle power in terms of international diplomacy. What role should Australia be taking in the development of international human rights?

Well, it is fair to say that Australia has been a significant player in the development of international human rights from the early days of Doc Evatt and the UN and the Universal Declaration on Human Rights, through the ’60s and the negotiations of the international covenants on economic and social rights and civil and political rights. We were strongly involved in the drafting of the international criminal court, the Rome Statute and we are active in the reporting processes to the various monitoring bodies on disabilities, torture and slave trading. So I think we’ve had a good record as a global participant in the development of international human rights law.

A quieter level of diplomacy and working together on education programs is going to be more effective than having a sort of megaphone human rights diplomacy within the region.

However we have been a little disappointing in the way in which we have implemented those laws in Australian law, partly because we have are a federal constitutional structure. It is not easy for a federal government to legislate in these areas if the states don’t come in. We do have a constitutional chilling effect on the capacity to implement human rights laws. In the global context, not only do we have a well-regarded high human rights record in Australia, with some notable exceptions, but we’ve been a leader in creating that law and implementing it as well.

Given your experience as the Australian Representative on the Council of Jurists for the Asia Pacific Forum for National Human Rights Institutions what role do you think Australia should be playing in the region and are we respected within the region when it comes to human rights?

I think we are respected within the region in human rights.  Australia has and can play a strong role in drafting agreements, responding to references on specific issues, like torture and slave trading, that I have been involved in. We have a great capacity to act effectively within the region, but we have to be extremely careful. We have to work sympathetically with our partners in the region. But to castigate our neighbours for failure to meet human rights standards without the underpinning collaborative negotiation would be a serious mistake

We work well with our Indonesian neighbours on many initiatives. I think a quieter level of diplomacy and working together on education programs is going to be more effective than having a sort of megaphone human rights diplomacy within the region. Australia hasn’t done that in the main and I don’t think we should in the future. The answer to your question is, yes, we have a strong role to play and we do have credibility and we are respected, but at the same time we have to be cautious in dictating human rights principles to our neighbours in the Asia-Pacific Region. It must be done through education, through collaboration, through training programs, through working together.

If you only achieve one thing as the President of the Australian Human Rights Commission what would you like that to be and why?

I would like to see a more coherent implementation of international human rights law in our Australian domestic law. The way we do it at the moment is very piecemeal, for example we are just pulling together all the federal anti-discrimination laws in one piece of legislation – that is exciting. But in respect of human rights you have to look at a particular treaty or a particular piece of legislation and they are being administered by different bodies. We don’t have any coherent mechanism for implementing human rights. I think we need leadership for a holistic approach that a human rights bill would have provided us with. I think if it were possible to move towards a more coherent approach to the implementation of human rights law in Australian law, that would be a primary objective of mine.

Latest

Review – Renewal: Five Paths to a Fairer Australia

By Georgia Cerni

Sophie Cousins’ book Renewal: Five Paths to a Fairer Australia is, in many respects, a proposal. For Cousins, the COVID-19 pandemic has provided Australians with an opportunity to reconsider the ways our society currently functions. Cousins aptly makes her case – while in some ways the pandemic reinforced burgeoning inequalities, it also presented us the chance to apply collectivist values to solve systemic problems.