Thursday, 15 January 2015

Gillian Triggs

Just for something a little different, and a little more pissed off, here's something slightly removed from the Queensland Election.  You may have noticed some headlines recently about Human Rights Commission chairperson Gillian Triggs.

If you read the Murdoch press, especially the Australian, they will be hysterical.

Gillian Triggs backs Indonesian Wife Killer Detainee

Tony Abbott blasts Gillian Triggs over wife killer John Basikbasik

Gillian Triggs' advice a 'betrayal' of women

The Guardian is more, well, guarded.

Abbott attacks Gillian Triggs over call to free convicted refugee John Basikbasik

You may notice that even though Triggs is far from a household name the headlines - even in the Guardian - use her name not her title.  I wonder why that would be?

A quick summary of the story.  John Basikbasik is a West Papuan refugee who arrived in Australia by boat (actually, by canoe) in 1985.  He was granted a protection visa on the basis of his connections with the West Papuan independence movement and has been living in Australia ever since.

Since settling in Australia, Basikbasik has committed a number of crimes.  The most serious was in 2000, when he assaulted his then partner so violently that she died from her injuries.  He was convicted of manslaughter and sentenced to seven years' imprisonment.

Basikbasik completed his sentence in 2007 and was released from prison.  However, his protection visa had been cancelled following his conviction and so instead of being released into the community he was transferred to Villawood Immigration Detention Centre, where he remains to this day.

 In late 2007 the Immigration Department concluded that it would breach Australia's international obligations to return him to Indonesia because his connections with the West Papua independence movement would place him in danger.  However, no Immigration Minister has been prepared to release him, and his various applications to ministers and tribunals for a visa, community detention or some other way to get out of secure detention have all been rejected.  As a last resort, he turned to the Human Rights Commission.

The Commission's job is to examine whether Basikbasik's continued detention breaches Australia's obligations under international human rights law, in particular the prohibition on arbitrary detention.  As the Commission's report says. "to avoid being arbitrary, detention must be necessary and proportionate to a legitimate aim of the Commonwealth".  If it finds a breach, it can recommend what the Commonwealth should do to rectify the problem but can't make binding orders.

After examining the case, the Commmission found that this detention did indeed constitute arbitrary detention, and recommended he be paid $350,000 compensation.  Implicit in the recommendation is that he should be released into some form of community detention, with conditions to reduce the risk of further violent offences.  Commissioner Triggs communicated these recommendations to the Department of Immigration in March 2014, and they wrote back in May rejecting them.  She submitted her final report on the matter to the Attorney-General in June 2014, and it was publicly released on November 24 accompanied by a press release.  You can read the report here.

End of story?  Well, yes as far as Ms Triggs is concerned.  She has done her job, made her recommendation and communicated it to the government.  She moves on to the next case.

Not, however, as far as News Ltd is concerned.  Last week they "broke" the story in a fever of outrage.  Tony Abbott and his various Ministers were quick to comment.  Abbott said the Commission's ruling was "pretty bizarre" and likely to "shake people's confidence in institutions like the Human Rights Commission".

Scott Morrison, the Immigration Minister who rejected the original recommendation, was more vitriolic.  He suggested that Triggs was “always arguing for a fair go for those who have forfeited that right by their own behaviour” and added, “There seems to be no consequences for one’s actions in the system she seems to believe in.”  His replacement, Peter Dutton, added that her recommendation was "so far from the public view, it is just offensive".

Of course I wonder why we are hearing about this story now when the report was released in November, and when the government has had the recommendations since March.  But more importantly, why the fake outrage?

Triggs is not a naive do-gooder.  She is a distinguished senior lawyer with a detailed understanding of human rights law.  She also, incidentally, knows enough about criminal law to see what has happened here.  Unfortunately Abbot, Morrison and Dutton don't seem to get this - or else they just don't care.

Nothing could be further from the truth than the idea that Triggs is advocating a system where there are "no consequences for one's actions".  Basikbasik was sentenced to seven years jail for his crime in 2000.  His sentence expired in 2007, so by 2014 he had served double the consequence prescribed for his crime by Australian law.  He is now detained not for his crime, but because successive Immigration Ministers (Labor and Liberal) have considered him a risk to the Australian public.

Nor does Triggs disagree with their assessment.  She reports on his history of disciplinary issues in detention including some for violent incidents.  She covers the findings of various psychiatric assessments which to varying degrees suggest that he is prone to violence, has problems with addiction and impulsiveness, and so forth.  No-one is pretending John Basikbasik is a nice guy.  The decision to keep him in detention is certainly defensible.

What she does disagree with is the notion that indefinite detention is the only way to manage this risk.  She says the Immigration Department has failed to explore the alternatives including community detention, a proper management and rehabilitation plan and the placing of various conditions on his release.

To my mind, it would have been surprising if she had not found his detention to be arbitrary.  What other conclusion could she possibly come to?  He has served the sentence for his crime twice over and has no prospect of release in the forseeable future.  His punishment is clearly already disproportionate under Australian law and becomes more so as the years pass.

If he was an Australian citizen this treatment would be outrageous and illegal.  He is being detained not on the basis of a crime he has committed, but on the basis of one he may commit in the future.  Because he has no legal standing in Australia he is at the mercy of the Immigration Minister, and successive holders of that office have not known the meaning of the word.

But I don't think that's really what this story is about.  Why is a formerly low-profile immigration case, long done and dusted, suddenly headline news and cause for so much government outrage and chest-beating?  Why is Gillian Triggs being named and shamed with such vitriol?

During 2014 Triggs and her staff conducted a detailed, substantial inquiry into children in immigration detention.  According to the published timetable, this inquiry will now be complete and its report will have been presented to the Government towards the end of 2014.  It has yet to be released publicly, but no doubt it was some senior adviser's holiday reading.  Like to guess what's in it?  Like to picture Abbott, Morrison and Dutton trying to convince the Australian public that keeping children in indefinite detention is not a breach of human rights?  Like to imagine Scott Morrison suggesting that these children have "forfeited their right" to a fair go "by their own behaviour"?  Like to imagine Peter Dutton commenting that the recommendation for their release is "just offensive"?

Obviously a little preemption was in order.  Much better to be attacking the Commissioner over a 51-year-old wife killer than over hundreds of innocent children.  A little subtle prompting would have been all it took for their mates at News to run with the story and give them the excuse to express a little shock and horror.  A good way to ensure that most people's first impression of Triggs is of someone who has sympathy for a wife killing savage who travels by canoe.

What would you like to bet that when the report into children in detention is released the stories in the Murdoch press (no doubt the first to appear courtesy of a strategic leak or two) will refer back to this case as an illustration that Triggs is "so far from the public view as to be offensive" and that previous decisions have "shaken people's confidence in the Commission"?  Perhaps such a shaking of confidence is the whole point?

Triggs herself has defended her recommendation.  Among other things, she says:

Those who commit a criminal offence, and serve the sentence provided by law, do not forfeit all their human rights for the future. Indeed, it is a vital element of our modern criminal justice system that those who commit offences should have the opportunity to reintegrate into the community once their sentences have been served.

Over the next month or two this story will fade away and she will get to talk about children in detention.  I doubt that she will be phased by all these shenanigans.  Misconduct aside, they can't sack her until her term expires in 2017.

Meanwhile, she has a job to do.  I trust she will keep doing it, and not let the bastards grind her down.

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