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

Jan 3, 2017

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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