This damnable pursuit of Gillian Triggs must stop at once. The Human Rights Commission has called out the government's lamentable failure to protect the human rights of children in detention at an inconvenient time. No government likes watchdogs on the moral and legal limits on its power.
Our Attorney-General George Brandis does not understand the use of the law to protect fundamental human rights and freedoms. Nor does he respect such niceties as the constitutional independence of the solicitor general, Justin Gleeson, who has honourably vacated the field to preserve the rule of law.
Triggs is an outstanding independent statutory office holder, one of the many appointed by governments over decades to remind them of Australia's international human rights obligations and to oversee the functions of laws to mitigate social wrongs such as age, race, disability and sex discrimination.
This is an essential element of a representative democracy. Civil liberties and human rights must be protected from obstinacy, expediency and ignorance.
I have practised law for 45 years, as a partner and owner of my own law firm, as a full-time consultant in a now international law firm, and as a barrister.
I have also held statutory appointments set by governments to protect people from discrimination, persecution and corruption, among them commissioner for equal opportunity in Victoria and in Western Australia and hearings commissioner of the Human Rights and Equal Opportunity Commission (HREOC or AHRC). None of these offices are ever popular with governments, or with those who wish to hire and fire at will or ridicule, despise and encourage detestation of unpopular minority interests.
Courts have limited or removed such bodies' power to determine complaints and grievances. For example, when I was AHRC hearings commissioner the commission had a statutory, quasi-judicial determinative power to hear and uphold or dismiss complaints, but this has now passed over to the judicial arm of federal government. The commission, having lost its decision-making power, is now pursued even if it expresses an opinion, for example, on Bill Leak's unpleasant Aboriginal cartoon in The Australian.
"The law has fallen short in protecting rights and freedoms in Australia. We need to do something braver and more fundamental. We must respect the moral core of the law which, until Triggs said it out loud, our federal governments comfortably overlooked."
All legislation has sharp edges that cut both ways, and the Constitution also has teeth to protect the Commonwealth's judicial power from encroachment or attack. We need balanced and sane discussion, both of which have been absent from public debate for far too long.
Protecting civil liberties and individual human rights and preserving the rule of law are the greatest challenges to the post-modern age. Waves of globalised investment and economic downturns and technological innovation create uncertainty, insecurity, and waves of workless people. Law provides for order, but democracy also requires that people feel they can influence and control of their personal circumstances. Resilience requires an internal locus of control.
The law has fallen short in protecting rights and freedoms in Australia. We need to do something braver and more fundamental. We must respect the moral core of the law which, until Triggs said it out loud, our federal governments have comfortably overlooked.
The function of judges and courts in developing the law by reference to human rights standards, where those rights are clearly and directly affected, is a legitimate and important influence on the rule of law. It is illegitimate to deny this role in even the AHRC's power to inquire and report. Yet this has long been a feature of Australian political life, particularly with regard to Australia's treatment of children, especially Aboriginal and asylum seeking children.
Children need adult champions to protect their interests and to claim their rights. Most often these are there parents. They are powerless in detention, on Nauru or on Manus.
There may be no effective remedy for the breach of a right, but as the late Scottish legal philosopher Neil MacCormack pointed out, sometimes a right is so clearly 'of such importance that it would be wrong to deny it or withhold it from any member' of our human society; that it must exist, a remedy must be found, and the person who ought to fulfil the duties attached to it identified and made to act.
John Stuart Mill argued it would be unjust to punish children for their parents' irresponsibility, poor judgment or poverty. The law must provide ways to ensure that children's rights are protected, not only through their families. Triggs, the Human Rights Commission and their state and territory counterparts are there to remind publicly those who are privileged or unthinking that there are important human rights claims to be considered.
Jailers know nothing about child welfare. It is not their business. Politicians choose to prefer the business of politics than the authority of the rule of law. Triggs offended Abbott and Brandis by speaking truth to power. Her verbal 'slip' under bullying last week about the accuracy of a headline in a small weekend paper was no lie, but provided an opportunity to incite hate.
Janusz Korczak wrote: 'Children are not the people of tomorrow, but people today. They are entitled to be taken seriously. They have a right to be treated by adults with courtesy and respect, as equals. They should be allowed to grow into whoever they were meant to be — the unknown person inside each of them is the hope for the future.'
Triggs, in speaking out for those rights, is a hero. Stand with her.
Moira Rayner is a barrister and writer.