RAMESH THAKUR. AHRC President Gillian Triggs: a year of living dangerously. Part 2 of 3.

Asylum seekers and children in detention

There are four separate issues that typically get lumped into one confusing debate: the policies on asylum seekers, boats turnback and offshore detention; and the treatment of detainees. 

The first three raise issues of international law and Australia’s compliance with the 1951 UN refugee convention in particular. I agree with Manne that as a nation we are more generous-spirited and big-hearted than our mean policy towards the boat-borne refugees would indicate. For human rights defenders, the last is particularly shameful and indefensible, even if one were to support or at least tolerate the first three. The 2015 AHRC report looked at child detainees in offshore camps. Its searing indictment was reinforced by the Nauru Files published by The Guardian on 9 August.

The AHRC chose to delay its investigation to avoid being trapped in the politics of an election campaign: a defensible decision based on political judgment. So a political response from the government was predictable. The viciousness of the personal attacks on Triggs was a backhanded compliment to the report’s rigorous research and meticulous documentation. Triggs handled her disgraceful treatment in parliament with grace, poise, dignity and courage.

But in June 2015, Triggs linked Indonesia’s refusal to discuss the death penalty for executed drug traffickers Andrew Chan and Myuran Sukumaran to the Abbott Government’s boats turnback policy: ‘have we thought about what the consequences are of pushing people back to our neighbour Indonesia? Is it any wonder that Indonesia will not engage with us on other issues that we care about, like the death penalty?’ The decision to venture into this highly charged policy debate was solely hers. The imputation of a link between the two unrelated events was insensitive and inflammatory and then-Immigration Minister Peter Dutton was outraged.

The QUT case

The AHRC was right to speedily determine that Senator David Leyonhjelm’s complaint against Linda Burney’s comment about old white males was not worthy of serious investigation. The Commission confirmed it can undertake a preliminary investigation and then either dismiss a complaint, or initiate conciliation processes. If the AHRC has sufficient independence and discretion to determine this about Leyonhjelm’s complaint, it should have been able to make a similarly speedy determination that the complaints against the QUT students and Bill Leaks’ cartoon too lacked substance and merit. There was no need to question the students or Leaks, no need for attempted conciliation and no need to delay the process over several weeks, let alone several months and years.

Unlike Spencer Zifcak, with legal unpredictability in the aftermath of the Andrew Bolt verdict and the failure of the AHRC to dismiss the complaint as lacking any merit, I find it easy to understand why some of the students decided to pay ‘go away’ money – legal extortion aided and abetted by AHRC administered 18C – rather than risk ongoing legal costs, a lasting stain on their reputations and ruined careers. The case of Kyran Findlater, who incurred $10,000 in legal fees while disputing allegations of racism against him but in the end paid $5,000 ‘go away money’ because of the impracticality of continuing with his defence from Canada where he had moved to, is especially instructive. His offer to pay $3,500 on a plea of poverty was rejected by Ms Prior and her lawyer because, they said, his wife also had a degree which increased their joint earning power – information gleaned from trawling his Facebook and LinkedIn pages! Several private sector companies and government departments have also paid up to $500,000 in ‘go away’ money as a result of the AHRC’s ‘conciliation’ efforts during the last five years.

As with ministers who silently go along with offshore abuses in order to get along in cabinet, I cannot understand and am appalled at the shameful failure of academics and students across Australia to protest against the injustice inflicted on the QUT students. According to Manne, ‘This obscure case would have remained in the shadows were it not for the megaphone given the case and the Estimates hearings by The Australian’. The arrogance and indifference of this casual dismissal of the students’ experience is staggeringly beyond comprehension.

Let’s be clear: the only victims in this unfortunate affair were the students, on four grounds. First, they were denied entry into university premises based solely on their race. However dressed up, this is racial discrimination.

Second, as professional educators we try to harness and sharpen our students’ intellectual curiosity by encouraging them to ask challenging, probing and uncomfortable questions. The students asked if racial segregation can be used today to reverse effects of segregation in the past. For daring to do so, they were subjected to a protracted inquiry such that the process itself became the punishment, regardless of the eventual outcome. Leak’s equation of the AHRC investigation against him for the controversial cartoon with death threats from Islamist terrorists is over the top. But dismissing the physical, emotional and mental effects of the inquiry on him as confected stress is also disrespectful.

In effect the message to the students was: you have been ejected from a building on your university grounds because you are the wrong race. If you question the justice of that action, you will be punished further, you will have to pay hefty fines, and your reputations and professional career opportunities may be ruined. So: if I was to be denied entry somewhere based on race, skin colour, religion or ethnicity, I would have no right to question the ethics, legality and morality of that action? Really?

There is a reasonable answer to their question. A university’s duty of pastoral care extends to providing dedicated units and services for those with special needs, including historically disadvantaged groups. There is a substantial literature drawing on examples from many countries on the results, merits and drawbacks of affirmative action policies. Big questions are debated: is guilt inheritable from one generation to the next; can reparations today compensate for theft from yesteryears; how far back into the past must we go to resolve the matter and move on? The students could have been encouraged to read up on these as a means of promoting understanding of the wider social issues involved.

The gravity and complexity of the issues, racial sensibilities and political sensitivities are such that they require free and frank, even robust, public debate, but one that stays within the bounds of civility, courtesy and mutual respect. (Bad manners may be offensive but should not be criminalised; society’s manners cannot be improved through legislation.) But the loose wording of the badly drafted s18C, plus the Andrew Bolt conviction, mean that people tiptoe around the issues as if walking on eggshells for fear of social shaming, legal conviction or career suicide. As subterranean fault lines widen, eventually they cause a political earthquake along the Trump lines.

The controversy could have been avoided with common sense. The administrator of the facility concerned could have said: ‘These premises are reserved for indigenous students. As the lab is empty at present, you are welcome to use it. However, in future please find other facilities open for general student use’. End of story.

Third, the attempt to extract financial compensation from the students turned the story from one about redressing historical injustice against Australia’s first nations into a sordid saga of trying to make a buck. The technique was to hire a lawyer to issue intimidatory letters demanding a total of $250,000, but offer to settle in return for $5,000 from each. Once these revelations were made public, sympathy rapidly shifted to the students. In an opinion poll published on 26 October, Australians opposed action against the students by a solid 57-21 majority.

Fourth, the fact that a relatively trivial complaint was allowed to drag on for so long and turn into a national controversy is an indictment of QUT’s and AHRC’s handling of the case. The price of their failings was paid eventually both by the students and Ms Cindy Prior. While we may quibble over apportioning blame between them, it seems indisputable that between them, the AHRC and QUT did mishandle the case.

Ramesh Thakur, a former UN Assistant Secretary-General, is professor in the Crawford School of Public Policy, Australian National University..

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5 Responses to RAMESH THAKUR. AHRC President Gillian Triggs: a year of living dangerously. Part 2 of 3.

  1. Robert Manne says:

    I assume calling someone staggeringly arrogant and indifferent is consistent with Professor Thakur’s idea of “civility,courtesy and respect’ in debate. Nonetheless, let that pass. I have some questions to which I’d appreciate answers.

    Is Professor Thakur saying that the AHRC was responsible for the subsequent legal actions taken by the indigenous complainant? As I understand it, citizens are able to take whatever matters they like to court, no matter how unreasonable, no matter how little likelihood there is of success.

    The manner in which the case is discussed by him and by The Australian makes it seem that he agrees with the way The Australian has, at least by failure to distinguish one thing from another, consistently appeared to blame the AHRC for the legal actions subsequently taken by Cindy Prior. Does he concede that the AHRC had nothing to do with Cindy Prior’s decision to go to court?

    Does Professor Thakur object to rooms being made available at universities for Muslim or Jewish students, or is it only rooms set aside to help indigenous students with their studies that seem to him an example of racism in reverse?

    Why does he not mention that the complaint at one time, as I understand it, had reason to believe (as it turned out wrongly) that one of the students used the n…word on Facebook.Would that have been a trivial matter? Might her actions in part at least be explained by that? If I was described as a filthy Jew I imagine I might be seriously angry and offended.

    Most interestingly to me, is he willing to answer the questions I asked yesterday about the campaign that is being mounted to cripple or destroy the AHRC? Most importantly, does he think an independent and robust publically funded body looking to the protection of human rights is something worth defending (my reason for interest in this affair)? And does he think that my idea that right-wing elements of the Coalition and the Murdoch press are conducting a campaign against Gillian Triggs, Tim Soutphommasane and the AHRC as an item of their culture war agenda a figment of my imagination?

  2. Robert Manne says:

    It appears by now that Professor Thakur will not answer the set of serious questions I have raised. I’m not sure why. Being willing to answer criticism or questions, especially after leveling ad hominem attacks,is a minimal requirement, I would have thought, of conducting the kind of debate ProfessorThakur advocates. If one is unwilling to engage in debate, why argue a case on a blog? Another requirement of the kind of debate Professor Thakur favours is non self-contradiction. In the absence of any reply from Professor Thakur let me then point out that there exists a convention that discourages self-contradiction. Not only does Professor Ramesh Thakur claim that my “arrogance” and “indifference” is “staggeringly beyond comprehension” in an article that advocates “civility, courtesy and mutual respect” in the conduct of debate. Arrogance, indifference at a level staggeringly beyond comprehension do not appear to me signs of civility, courtesy or respect. Even the claims in a short piece don’t stack up according to ordinary logic. In one paragraph Professor Thakur argues that “the only victims in this unfortunate affair were the students” and in another that “the price of their (AHRC and QUT) failings was paid eventually both by the students and Ms Cindy Prior.” One of these statement might be true. Both cannot be.

  3. Patience, Prof. Manne, patience. I was on leave last week, driving around parts of Australia, with neither the inclination nor the opportunity to be checking various matters online.
    To begin with, just so there is no misunderstanding on the part of any readers, let me state upfront: I do not know any of the principals involved in the cases I covered in my analysis. To my knowledge, I have never met any of them nor been in communication with any through any medium. For that matter, although his name, work and fame is familiar, I don’t think I’ve ever actually met. Prof. Manne either. My interest is solely in the issues involved.
    I do not intend to reply to all the comments and questions raised by Prof. Manne. He is very welcome to answer those himself and write another one (or more) article(s) to expand his arguments if he is so inclined. But I do wish to say a few things briefly.
    Firstly, he is right to call me out on my use of the word ‘arrogance’ after emphasising the importance of civility in discourse. I let my anger get the better of my judgment on that one. This was unworthy, I apologise and retract the word and, if the moderator is agreeable, I am happy to substitute the second sentence in blue for the old sentence in yellow highlights.
    The arrogance and indifference of this casual dismissal of the students’ experience is staggeringly beyond comprehension. I think their stressful experience in fact is important for highlighting the flaws of s18C and how complaints under it have been handled by the AHRC, and as such should not be so casually dismissed.
    In turn, I hope Prof. Manne will reflect on how appropriate it is for a senior professor to write so about students, even if they are not his students nor at his university. Bill Leak is a big boy and had the resources of The Australian behind him; he can look after himself. Does the defence of Professor Triggs really require that the students’ experience be belittled?
    Second, the anger at the treatment that the students were subjected to was genuine and it is important for even those with differing opinions to recognise that the outrage is not limited to extreme rightists, racists and bigots. I am not going to rehash the details of the case nor enter into a ‘you said-I said’ debate on the issue. But I would be very interested to know if the AHRC and QUT believe that, given the chance, they would change the way they handled the case or do everything exactly the same as before. If they would handle it differently, that would amount to an admission of having mishandled it originally. If they would repeat it all over again exactly as before, then clearly they believe they handled it properly. I’m not sure this would pass the laugh test, but that’s for them to worry about – or not.
    Third, in that connection, Prof. Manne pulls me up for a logical contradiction when I say the students were the only victims, but then later on go on to say that Ms. Prior also paid a price. This puzzles me, as not everyone who pays a price is thereby turned into a victim. George W. Bush and Tony Blair paid a price for the Iraq war (not high enough, but that’s another matter). Osama bin Laden paid the ultimate price for his part in the 9/11 terrorist attacks. I would have considerable difficulty wrapping my head around the notion that, in describing them as having paid a price, I am saying that any of Bush, Blair or bin Laden were victims. Others may disagree with my characterisation of the victims, but I don’t think there is any necessary logical contradiction. On the other hand, it is suspiciously close to circular logic to argue that the students are right wing because they asked these questions; and they raised these issues because they are right wing. I would have thought we need a lot more information about them before inferring their ideological leanings and political beliefs.
    Fourth, and possibly most importantly, we both seem to agree that the key issue is the human rights protection agenda and the necessity of an Australian human rights commission. Prof. Manne believes that protection of the AHRC requires unyielding defence of its president. I argued that the accumulating series of mis-steps and misjudgments, culminating in the later-corrected misleading statement in the Senate committee hearings, so compromised the president as to make her leadership of the AHRC difficult without compromising its institutional integrity. Even so, I held my peace and did not venture any public criticism on the earlier incidents until such time as I thought the final line had been crossed. On the contrary, in a radio interview on the children in detention report, I defended the AHRC and the president against attacks by the government.
    Is Prof. Manne’s argument that Prof. Triggs did not make any mistakes; or that her errors were so minor that it is best to ignore them in order not to give any more ammunition to a government determined to ‘get’ her; or that she did commit at least one serious transgression, but that should be brushed aside in order to protect the AHRC from attacks by the government? The first I would dispute on the publicly available evidence; the second I would understand and be sympathetic to if that is what someone genuinely believes, even though I do not share that judgment; the third I would strongly disagree with. In my view, for reasons explained in the article, the two-step transgression of a misleading answer in Senate committee followed by the attempt to shift the blame by alleging professional misconduct by the reporter and/or editor was serious enough to warrant resignation by any president of a national human rights commission.
    Moreover, the worst human rights abuses can be committed by governments. National human rights commissions are established and commissioners chosen by governments. Therefore there is always the potential in any country for a national human rights commission to undergo an Orwellian transformation whereby it becomes part of the state apparatus to violate the civil liberties and political freedoms of individuals. Human rights defenders must surely be vigilant against this also.
    Reasonable people can argue in good faith and come to different, even opposite, conclusions. This includes the question of when policies, laws and institutions meant to promote intergroup harmony and goodwill end up hardening divisions instead through perverse and pernicious consequences.
    That is the nature of debate. I can live with that. But I don’t have much time for ideologues from either right o left. And I really don’t give a toss about whether The Australian agrees with my views or opposes them – I refuse to give them the power to determine my opinions and writings. Nor do I always want to address only those with compatible views as my primary audience. The Australian has never tried to censor or twist my words to suit their agenda. Indeed in the last article of mine they published, on the multiple threats to human rights as we have known them, only one – the AHRC issues – was in lie with their main slant. The other three provoked strong disagreement from most of their online readers, some less polite than others. But they did publish it. I will stop writing for The Australian the day I conclude they want to censor me or publish only one point of view. Until then it remains an important potential outlet.
    My conclusion that Triggs’ position had become untenable aligns with the Coalition calls for her to go. Before that, my defence of her was in line with Labor and Greens. My views on offshore detention were highly critical of Labor and Coalition policies and more in line with the Greens. My views – all of which are available on the public record – on the need for a more independent Australian foreign policy, for requiring parliamentary debate and approval before committing Australian forces to overseas military operations, for active Australian nuclear disarmament diplomacy are also all critical of both mainstream parties and closer to the Greens. My scepticism on foreign aid puts me offside with the liberal intelligentsia while that on sanctions is at odds with most Western governments and the liberal and conservative intelligentsia; I argue both do more harm than good on balance.
    In no case does the alignment of my views with any political party or liberal-conservative faction either concern me or attract me to that policy. Someone looking at a range of my views would have difficulty locating me on the left-right spectrum while anyone inferring my general leaning on the basis of one article would be inaccurate, unhelpful and not very relevant. I am comfortable coming to my own independent conclusions on the issue to hand and happy to explain my reasoning without worrying about the ideological trench warfare of culture wars. Not that this stops the culture warriors from taking pot shots, but that seems unavoidable.
    In contrast to the serious questions posed by Robert Manne, Frank Carter’s comment perfectly illustrates one of my arguments. So I thank him very kindly indeed for the validation.

  4. Robert Manne says:

    I thank Professor Thakur for his response. Like him I believe nothing will be achieved by a “you said, I said” dispute, of little interest to anyone possibly including in the end even the protagonists.

    As I’m sure Professor Thakur realises the issue of greatest significance between us is whether or not the right-wing members of the Coalition and the Murdoch press are or are not conducting a campaign whose purpose is the destruction or the crippling of the AHRC. I believe they are. Professor Thakur doesn’t really tell us what he thinks about this question.

    In my reading or judgment the campaign began when Tony Abbott described the excellent report written by Gillian Triggs and the AHRC on children in detention as a political stitch up, whose purpose was to harm his government and protect the ALP from criticism.

    This was nonsensical. During the period of the Gillard government Triggs had researched a report which was very damning of the Labor administration. The report was published shortly after the 2013 election. Only if it is suggested that the AHRC would have suppressed that report if Rudd had won the election, in my an absurd suggestion, could it be argued that the AHRC was not interested in the victims of our border protection policy but in the harm the AHRC could do to the Coalition government. This report was called Asylum Seekers, Refugees and Human Rights. I urge your readers to peruse it. It puts to bed the idea that the AHRC was biased against the Coalition rather than concerned with the human rights of the victims of our border control policies.

    http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/asylum-seekers-refugees-and-human-rights-snapshot

    Nor was Gillian Triggs silent on the issue before then. On October 24 2012 she spoke on the issue to the WA Division of the United Nations. Again, I would urge all Griggs’ critics to read her speech, delivered during the period of the Gillard Prime Ministership.

    https://www.humanrights.gov.au/news/speeches/current-issues-australia-faces-relation-its-treatment-refugees-2012

    Ever since the Abbott attack, a campaign against the AHRC has been conducted. Its aim has been to force Gillian Triggs to resign her post. The campaign has been led by right-wing members of the Coalition and the Murdoch press. The two main fora for the campaign have been the Estimates hearings of the Senate and The Australian newspaper which has devoted hundreds of thousands of words to the cause. The two main cases following the Abbott stitch up nonsense have been the actions taken against Bill Leaks’ quasi-nineteenth century cartoon depicting an Aboriginal father unable to recall his son’s name, and the action taken by Cindy Prior against the students who took to Facebook to complain about the reverse racism and the segregationist policy of QUT having allocated a computer room for the benefit of indigenous students.

    As I previously posted, I imagine Cindy was a little upset when she read the n…word in one of the postings purporting (falsely) to be of one of the students she had asked to leave the computer room. This is one of the issues Professor Thakur does not discuss.

    In my judgment, no serious errors were made by the AHRC in any of the three cases–border control, Leak, QUT–used to try to destroy or cripple it. Whether or not I am right about that would take an elaborate argument. Readers will have their own judgments.

    Professor Thakur is so deeply angered by my indifference to the sufferings of the students that he published comments he now regrets. What perplexes me is that he seems to have no inkling of what Gillian Triggs has had to endure. Unlike Professor Thakur I do have some experience of trying to defend oneself against an institution that buys ink by the barrel load, although I have not had to endure one-tenth of what she has experienced. In my view she has borne herself with great restraint and dignity. As she understands, for her to resign at this time would provide her enemies with a victory that would harm not only the future of the AHRC but even the future of the liberal political culture in Australia.

    Incidentally, I do not believe Professor Thakur or anyone else should not write for The Australian. (Indeed I write for The Australian from time to time, as it is now the only paper which publishes analyses at some length.) I do however believe it to be either naïve or plain wrong for liberal-minded Australians, like Professor Thakur or Sev Ozdowski, to involve themselves in in support of one of their culture war campaigns, which in my view are helping to weaken the political culture of liberalism in Australia.

    These are matters of judgment. And it is, in my view, judgment or a sense of proportion that in this case at least Professor Thakur altogether lacks.

    As evidence let me quote the final paragraph of part 3 of his contribution to the Menadue blog:

    “All human beings are rights bearing animals. Human rights advocacy requires a moral imagination to feel the pain of others’ as one’s own. Owing to a failure of moral imagination, ordinarily decent people allow inhumanity to be inflicted in the name of border protection, fighting terrorists or combating racism. They should recall Pastor Martin Niemoller’s poignant Nazi-era lament that indifference to others’ plight meant that when the oppressors ‘came after me, there was no one left to speak for me’.”

    According to Professor Thakur, then, the students at the QUT who were asked to leave the indigenous-only computer room and who then took to Facebook to complain about reverse racism and became the subjects of an 18C complaint, have been treated with a moral indifference so deep by people like me that they can be justly compared to the victims of the Nazi regime.

    According to Professor Thakur, moreover, Gillian Triggs, Tim Soutphommasane and the AHRC are potential oppressors and destroyers of our human rights so dangerous that concerning the threat they pose the warning of Pastor Niemoller issued about the coming crimes of the Nazi regime, including of course the Holocaust, is entirely appropriate.

    The lack of judgment involved here simply takes my breath away.

    At least Professor Thakur and I have one thing in common: the criticism of Frank Carter, who does not wish John Menadue to publish Professor Thakur and who believes that my factual description of the deeds of the Islamic State is politically incorrect amounting to a case of Islamophobia.

    • Ramesh Thakur says:

      I think by now both Robert Manne and I have canvassed the issues in sufficient detail and depth that readers will be able to form their own conclusions – especially if they add Spencer Zifcak’s thoughtful post today (‘Robert Manne v Ramesh Thakur v Gillian Triggs: What on Earth is Going On?’, P&I, 12 January) to his original article. I’d like to bring this particular debate to a closure with three quick points, even though the issues will reverberate for some time yet.
      First, aside from the one sentence noted and corrected in my previous reply, I stand by everything else I’ve written in my original three-part article and the subsequent reply.
      Second, for the second time Prof. Manne brings up the issue of the use of the n…. word. He is right, I did not respond to that. And yes, the non-response was deliberate. I do not use social media like Facebook and Twitter and have never done so. So my grasp of the technicalities may be shaky. But from what I can understand, the word was used in a Facebook post. The account purported to be of one of the students in the QUT case. He was and remains insistent in his denial, and there has been absolutely no evidence to suggest his denials are false: apparently it is possible to ‘hijack’ others’ accounts. But the student also pointed to his own anguish at the fact that Internet searches of his name return the link to the alleged use of the offensive word. For that reason I chose not to take that issue up yet again until the real perpetrator is apprehended. That said, should they ever succeed in identifying the mischief maker responsible for it, I hope the miscreant will be pursued and held to account for the harm and stress caused all round, including the distressed feelings of Ms Prior.
      Third and finally, as this suggests, all of us who engage in public debate do exercise judgment all the time as to what to include and what not, and the terms and words to be used. That is as it should be. We are discussing the big issues of laws and institutions — and the risk that they can be abused and perverted by the powerful — to ensure a just and decent society and community as the outcome of the struggle to balance competing interests and values.

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