SPENCER ZIFCAK. Robert Manne v Ramesh Thakur v Gillian Triggs: What on Earth is Going On?

Jan 12, 2017

If one were ever in this situation, who would one wish to speak for them: George Brandis or Gillian Triggs? That’s the choice.  

Ramesh Thakur, Robert Manne and Gillian Triggs are university colleagues of mine. I know and respect each of them very highly. So, I have found it remarkable to see Ramesh and Robert at war about Gillian in these pages in the last few weeks. I would not have expected it. So, I thought I might jot down some thoughts of my own on their disagreements by way of crystallizing some issues and, I hope, providing a little balance.

There are several points raised in Thakur’s three articles with which I agree and many with which I disagree. So, let me start with the positives.

Beginning on a personal note, I agree with Thakur’s claim to be left of centre on 70-90% of political issues. He’s no clone of The Australian. At the same time, he is a critical and independent thinker so it comes as no particular surprise that, as in this case, he may occasionally jump the fence and join the forces of radical conservatism. That’s just how it is with independent thinkers and Thakur deserves considerable credit for being one. Still, from whatever perspective a critical thinker comes, his or her arguments still have to stack up. And here I’m not sure that they do.

Some of Thakur’s criticisms of Gilllian Triggs are on the mark. So, while legally justifiable, her decision to recommend huge payouts to individuals guilty of serial and serious criminal offences, on human rights grounds, was a mistake. The individuals concerned may well have been arbitrarily detained, but the large payout recommendations were properly greeted with dismay by the Prime Minister and, I suspect, by most in the wider community. The Australian Human Rights Commission’s (AHRC) standing suffered as a result.

As Thakur contends, certain elements of the AHRC’s handling of the QUT students’ racial discrimination case could certainly have been handled a great deal better. It was unacceptable that the students were not notified officially of the racial discrimination complaint against them until more than 12 months after it was lodged and only three days before the first conciliation conference was to be conducted.

This was not entirely the Commission’s fault. As QUT’s Vice-Chancellor has explained, the delay was caused principally by QUT’s desire to take over the legal conduct of the case so as to protect the students from the stress and cost of initiating their defence. The Commission agreed with this request. But it should not have delayed the provision to the students of a notice of the complaint and of its own procedures for so long, even at QUT’s request.

Again, Thakur is right to point to evident defects in the Commission’s conciliation procedures. It is not right that complainants should have their complaints proceed to conciliation without them first providing sufficient evidence in writing that an act of discrimination has occurred. However, this omission this is not primarily the Commission’s fault. It derives from the terms of its governing legislation which imposes no such initial hurdle requirement. That should change.

And it is not right that respondents, like the students, should feel so intimidated by the prospect of conciliation and its possible financial consequences, that they feel obliged to pay money to settle a matter, when in fact there may be no reasonable case to answer. The Commission has a responsibility to ensure that both complainants and respondents receive appropriate legal advice prior to conciliation’s commencement.

Gillian Triggs’ missteps in her answers to questions before a Senate Estimates Committee were also regrettable. Her attack on Saturday Paper journalist, Ramona Koval, was, as she later admitted, misleading and misconceived.

Thakur’s suggestion that Triggs should either have admitted that her interview with Koval had been accurately rather than inaccurately reported and stood by her comments therein; or said that she needed time to check the record given that the interview had been conducted six months earlier, would both have been preferable responses. But to argue, as Thakur does, that her mishandling of this matter constitutes a hanging offence goes many steps too far. I return to this contention presently.


On the other side of the ledger, I remain puzzled by the amount of attention that Thakur gives to the QUT students’ case. Really, speaking as the human rights lawyer that I am, this case is but a speck on some far distant horizon when placed in the context of Australia’s woeful recent performance with respect to the protection of fundamental human rights. This abject governmental failure has properly attracted widespread international condemnation.  (See Spencer Zifcak. Critique of Government’s attacks on civil society.)

I think it would have been preferable if Thakur had sought to assess Gillian Triggs’ performance as President of the AHRC primarily in relation to the many serious abuses of human rights that now occur in Australia with regrettable frequency.

She has, for example been a beacon of light in the country’s refugee debate. When escapees from persecution are imprisoned by the Government on far flung islands in the Pacific; where their cases go unheard for years; where they are daily subjected to inhuman and degrading treatment; where the Australian Government’s actions are directly responsible for hundreds and hundreds of people, including small children, suffering severe psychological and physical illness; when the Government has to be told how to behave by the PNG Supreme Court; and when asylum seekers are dying – should we not look favourably on Gillian Triggs, who is more responsible than anyone for drawing these cruelties to our attention and holding the Government to account for its reprehensible human rights abuses?

The same may be said in relation to any number of Triggs’ other interventions with respect to really serious human rights violations. She has done fine work on human rights abuses that will occur pursuant to counter-terrorism legislation. She has stood out against Border Force secrecy and the criminalization of whistleblowing in that context. She has done first rate research work concerning discrimination against people of the Islamic faith; she has stood up firmly, yet in a nuanced way, in favour of freedom of speech, for media freedom and for the rights of journalists to protect their sources. She has clearly understood and expressed her concerns with respect to the privacy implications of the Government’s sweeping metadata legislation.

These are among Australia’s most significant human rights problems and those in relation to which Gillian Triggs’ record should properly be judged. She comes out really well.

But to what does Ramesh Thakur devote the majority of his attention in his highly critical articles? To some insolent social media posts by half a dozen Caucasian students at QUT objecting to their exclusion from a computer lab set aside for use by Indigenous students, and a complaint of racial discrimination arising therefrom. I don’t understand the priorites here.

As to the QUT case, it may be worth correcting some common misassumptions. It was said, by the Prime Minister among others, that the AHRC should never have initiated legal action against the QUT students in the Federal Circuit Court. Even a cursory reading of the Commission’s governing statute, however, reveals that the Commission has no power to initiate court action. And it didn’t. The Federal Circuit Court action under s.18C was brought by the applicant QUT staff member herself.

Thakur attacks Triggs on the ground that she should have dismissed both the QUT and Bill Leak complaints at an early stage given that both were unlikely to succeed. She would thereby have avoided a lot of heartache for the respondents. The fact is, however, that she couldn’t.

The AHRC’s Act requires the Commission to investigate any significant complaint that is made and then to endeavour to conciliate it. It may dismiss a complaint at an early stage if it is trivial, vexatious or ‘lacking in substance’. But neither of these two cases fell within those categories. The QUT and Bill Leak cases were highly unlikely to succeed, but both cases were arguable and so required the AHRC to investigate and, if possible, mediate.

It is important to understand here that ‘lacking in substance’ and ‘having no reasonable prospect of success’ are two very different things. The Commission has the power under its statute to dismiss a case early if it is lacking in substance. That is, for example as in the David Lejonhelm case, if in the complaint no act constituting racial discrimination can be discerned.

But only a Court can make a ruling that a complaint has no reasonable prospect of success. This is because the Commission has no determinative powers. Its role is to conciliate complaints. It does not stand in the shoes of a judge who may make final decisions as to law and fact. Only a judge can decide, on the basis of all the evidence provided to him or her in court, that the evidence for a complaint is weak and, therefore, that a complaint ought to be dismissed because it has no reasonable prospect of success.

This is exactly what the Federal Circuit decided when it dismissed the QUT staff member’s complaint recently. But, lacking determinative powers, Gillian Triggs in the Commission could not have made any such ruling and she would have been acting ultra vires if she had.

As I have acknowledged in previous articles on this matter, I have no doubt that the students’ have suffered stress and reputational damage as a result of the making of the complaint, as indeed, the complainant Ms Prior has. But one does need to be very careful when apportioning responsibility for this regrettable outcome, so as to ensure that an opinion on the matter is made with full knowledge both of the circumstances and the relevant law.

One final, critical, contextual issue went unaddressed in Ramesh Thakur’s analysis. At no stage did he seriously consider the bitter and divisive political context within which these recent events have taken place. I note that he does say, in one sentence, that it is ‘probably true’ that the Government is out to get Gillian Triggs. But then he leaves the matter. It can’t be left because it is central in understanding what has happened.

Here, I think that Robert Manne’s delineation of the crucial issue is correct. That issue, as he puts it, is ‘whether or not the existence of a robust and independent Human Rights Commission in Australia, and of a robust and politically independent President is or is not something worth fighting for.’

If the answer is yes, it is worth fighting for, then concerted and critical consideration must be given to the slew of intemperate, inaccurate and wayward attacks by the Government on the President of the Commission for most of the last three years. Unfortunately, Thakur does not do this.

In this respect, the Government all too often gives the game away by constantly criticising the Commission, not for its human rights work which for the most part has been exemplary, but rather for defects in its procedures, its refusal to accept government policy – even where it is recognized that a policy is not human rights compliant – and for what it calls the Commission’s political misjudgments.

The Government’s savage attack on Triggs for launching its inquiry into children in detention after and not before the 2013 election is a cardinal example of such an attack. There was no attack on the damning findings of child abuse in the Commission’s report in sight. There could be none, it was an exemplary piece of research and analysis. So, instead, the Government turned its fire on Triggs’ timing of the inquiry. Good politics maybe. Dreadful argumentation.

I note appreciatively that Ramesh Thakur concludes in one of his articles, as I do, that the decision to delay the opening of the inquiry until after the 2013 election was a sensible one, given the highly politically charged environment in which the inquiry would have been situated if it had been commenced in the run-up to the election.

It is also significant, as I noted in a previous article of mine, (See Spencer Zifcak. The Federal Government Attacks its Watchers), that it is not only the President of the Human Rights Commission who has been the target of Governmental attack, led principally by the Attorney-General, Senator Brandis.

So was the Information Commissioner who resigned when he could not agree with the Attorney’s retrograde reforms to the Freedom of Information Act and after his staff and office accommodation were swept away following radical budget cuts. So was the Solicitor-General who resigned because he could not accept improper constraints on his legal authority that the Attorney-General sought to impose (See Spencer Zifcak. First Law Officer vs Second Law Officer: George Brandis and Justin Gleeson in Conflict (Part 2)
). And now it is the President of the Human Rights Commission, Gillian Triggs who, the Attorney-General has announced, will not be reappointed at the end of her term. This is a pattern, a deeply worrying one.

To restate Robert Manne’s identification of the core issue in slightly amended form: the issue is whether or not the existence of robust and independent statutory offices designed to draw the Federal Government to account for its actions, and the appointment of robust and politically independent Commissioners, is or is not something worth fighting for.

I do wish that Ramesh Thakur, with all his brilliance, independence, thoughtfulness and professional skill had made that issue central instead of focusing on others barely reaching the threshold of human rights violations requiring national consideration and immediate redress.

Thakur ends his article with the famous quotation from Martin Niemoller’s poignant anti-Nazi lament: ‘then they came for me, and there was no one left to speak for me.’

If one were ever in this situation, who would one wish to speak for them: George Brandis or Gillian Triggs? That’s the choice.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and was for ten years a Vice President of the International Commission of Jurists (Australian Section).  

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