Without fear or favour

Speaking out on human rights and the letter of the law

Margaret Thornton

Government and governance, Law | Australia

25 June 2015

Far from overstepping the boundaries of her office, Australian Human Rights Commission President Gillian Triggs is to be commended for speaking out on human rights, writes Margaret Thornton.

John Wanna claims (State of independence – Policy Forum) that Professor Gillian Triggs as President of the Australian Human Rights Commission has overestimated the independence conferred by her position to speak out. He argues that her position is comparable to that of the heads of other statutory bodies, such as the Productivity Commission. I beg to differ.

The functions and powers of the AHRC are not circumscribed in the same way but are extremely wide-ranging. At the risk of being a tad legalistic, I think it is important to mention these legislative powers briefly as they seem to have been accorded short shrift in the attack on Professor Triggs.

While the AHRC Act not only establishes the AHRC and specifies its functions, it is also the enabling Act for the four other pieces of legislation addressing discrimination at the federal level, namely age, disability, race and sex. (The attempt at consolidation of the five Acts by the Gillard government lapsed in 2013.)

In addition, the AHRC has the power to inquire into any act or practice [my italics] that may be inconsistent with or contrary to any human right (s11(1)(f)). The Schedule to the Act includes a number of broadly worded international instruments to which Australia is a party, including the International Covenant on Civil and Political Rights. Reference to these instruments may help in the explication of “any human right”.

The schedules to the Age, Disability, Racial and Sex Discrimination Acts also include the international instruments that gave the Federal Government the constitutional power to pass these Acts.

I do not propose to embark upon an analysis of the substance of these instruments but merely wish to draw attention to them as illustrations of the vast array of material that informs the meaning of human rights in Australia.

That’s all very well, I hear you say, but the Acts and international instruments refer to the powers of the AHRC, not to those of the president. No, that is not so. If we return to the AHRC Act, it is notable that s8(6) expressly states that the functions of the Commission shall be performed by the president.

Again, the functions are outlined in very broad terms. Section 11(1)(g) is exemplary as it empowers the AHRC “to promote an understanding and acceptance of and the public discussion [my italics], of human rights in Australia”. Qualifying phrases used in other sub-sections point to the wide discretion conferred on the AHRC and inferentially the president in taking action, such as “on its own initiative” and “as the Commission considers appropriate”.

Therefore, as a simple matter of statutory interpretation, any critic of Professor Triggs, including Professor Wanna, would be hard-pressed to make out a compelling case that the president has “overstepped her statutory powers” by, for example, questioning the vesting of a discretion in the Minister for Immigration to strip citizenship from Australians suspected of engaging in terrorism overseas.

The provisions of the AHRC Act make clear that the president is not a mere functionary who is expected to kow-tow to the government. Her duties are to uphold the principles of human rights without fear or favour.

While the president of the AHRC is appointed by the government of the day, the broad discretions devolved to her by the legislation make clear that she is not expected to do the bidding of government any more than judges who are also appointed by the executive.

It is regrettable that members of the government and some public commentators have seen fit to traduce Professor Triggs because she has declined to be a forelock-tugger. Her statutory position authorises her to speak out robustly when violations of human rights occur or are believed to be about to occur.

Indeed, Professor Triggs is to be commended for not being cowed in the face of personal attack from those whom one might have thought would have regard to the legislative prescripts before condemning her.

This piece was also published by the Canberra Times.

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