When I was on the Productivity Commission (which until just before I left was the Industry Commission) I recall thinking quite carefully about who exactly was talking when I was conducting a hearing. I was clearly representing the Commission. Then again I was also just little old me. I certainly made it clear when I was expressing personal views, or if I was saying something that could be represented as a Commission view when it might actually be tentative questioning, or arguing to pursue a point. I’d make it clear that I was for instance pursuing a line “for argument’s sake” (then again I’d do that in private discussion). But there were also personal views that it was clear to me that it wouldn’t be appropriate for me to express in that role.
When the Abbott Government put on a performance about Gillian Triggs, George Brandis had a clever line about how she wasn’t a judicial officer. (I remember thinking at the time that it was too clever by half in the sense that I remained unconvinced that in circumstances that suited him he might argue the opposite or strenuously resist someone defending themselves as he was defending the government. But anyway …) Still Brandis was right to the extent that the appropriate standard to apply to an officer of the Human Rights Commission is not that of a judge. The Human Rights Commissioner and its President are there to publicly argue a brief. As I sometimes was when representing the Commission.
But it did seem to me that when I was representing the Commission it was incumbent upon me to act with a degree of restraint. I was representing an institution and that should be done in a way that is not undignified. And perhaps just as a matter of fairness, I had the benefit of the institution behind me as individuals don’t. So it seemed to me that if I were to debate a person, I shouldn’t debate them in an ad hominem way or at least not in a disrespectful way. I think ideally that should apply to all people, but certainly to people who occupy offices that should be respected. You may not like or respect lots of politicians. There are plenty I don’t like and some I don’t respect. But if I was representing the Commission I would behave to them all with proper curtesy – including if they were being unreasonable to me. I would do that out of courtesy and to model the seriousness – or to express it more negatively – the pomp of the institution and the office I held in it.
Anyway, you’d think from at least one of the things Gillian Triggs said in a recent interview with the The Saturday Paper that she agrees with this. Thus Ramona Koval asks her “What were you thinking as the nine hours [before the Senate Legal and Constitutional Affairs Legislation Committee] unfolded?”
I was thinking, “I must stay calm, I must keep my answers measured, moderate and evidence-based, I mustn’t be rattled by them and I mustn’t react with the same lack of courtesy that they show to me.”
But it turns out that this was for no deeper reason than for media or ‘issues’ management reasons.
It was a tactical ploy. It was called for by the theatre and resultant tactics of the occasion. After all, she’s still President of the Commission and she’s giving an interview about the Commission, so unless she’s talking about her gardening, she’s representing the Commission. And she lets us into what a great job she did that day – how restrained she was. And tough it was for her – how mean they were to her.
I’ll go on to document that, but it’s also worth mentioning Triggs’ intellectual confidence in where she’s coming from. She firstly lets us know how she “rather naively thought if you’d been dean of a law faculty you could manage anything.” We’ll let that one slide through under cover of irony. But have a look at what she said in the quote that accompanies her photo above. The picture that emerges is one in which she occupies the summit of a particular discipline and profession – that of the human rights lawyer – and she is liberal in her shaming of those who are ignorant of, let alone dismissive of this framework.
Now there are some intellectually respectable reasons for being sceptical of enforcing human rights as a way of improving human lives. Indeed there are at least as many economists whose arrogance matches Triggs’s on this point. They’d argue that the real underpinnings for improved outcomes are economic, not fancy legal doctrines imposed by those in authority.
A Marxist might argue that you wouldn’t want to put your faith in the well paid representatives of the legal system of the oppressors to alleviate the lives of ordinary people. Indeed while I wouldn’t argue anything so extreme, count me as one who is wary of putting too much weight on ‘human rights’ arguments, not because I wouldn’t normally celebrate the outcomes if they could be delivered, but because there’s many a slip in delivering ‘rights’ onto the ground through a legal system which represents those in charge.
And leaving the calm shores of intellectual respectability for a moment, and whether I agree with them or not, lots of Australians, ordinary Australians and voting Australians think human rights are code for a highly ideologised set of ‘soft left’ presumptions and protocols. Australians like Bob Carr and Pauline Hanson and I’m thinking perhaps Jackie Lambie, though I’m not sure of her. I disagree with Pauline Hanson on various aspects of human rights, but firstly I respect hers as a legitimate voice in Australian democracy, and I also think she brings a valuable perspective.
Anyway look at how Triggs sees the world when Private Gillian tells us what the Public Gillian really has to put up with. It’s not pretty. You know those parliamentarians who are elected by the people? Well those people really need to take a good look at themselves when it comes to the representatives they elect.
I was unprepared for dealing with senior political figures with no education whatsoever about international law and about Australia’s remarkable historical record which they are now diminishing. We’ve got senior public servants who will roll their eyes at the idea of a human right. They say, “Look, Gillian, you’re beating a dead horse.” It’s not going to work, because they can’t talk to the minister in terms of human rights. We’ve had, in my view, very poor leadership on this issue for the past 10 to 15 years, from the “children overboard” lie. They’ve been prepared to misstate the facts and conflate asylum-seeker issues with global terrorism.
She then reassures us of her even handedness. “What I’m saying applies equally to Labor and Liberal and National parties.” That seems problematic on its face to me. It seems quite clear that, however much one might disagree with the ALP’s position, the Coalition took the major steps to drive a wedge between the parties on the question and exploit it for political gain, with the ALP seeking doing whatever it thought it could to neutralise the issue (though of course where it might have gained an advantage over the Coalition amongst doctors’ wives for doing so, it did so with alacrity. And in trooping the moral equivalence colours, Triggs is playing herself into the role of a pundit – crafting her words with media savvy, but at some cost to real candour. She goes on “They’ve used this in bad faith to promote their own political opportunistic positions.” So there you have it, an officer of a Commonwealth Government Agency becoming a political pundit and letting us into the minds and the consciences of the players.
After Professor Triggs lets us know of her steely determination to “stay calm” and not be provoked by the Senate Committee members she tells us what the “reality” was.
The reality was that they could suffer no harm from this, whereas if I gave the wrong answers, I could lose my case and I just had to keep control of myself. I knew we had the law right and the facts right. I knew that anger was under the surface. I knew I could have responded and destroyed them – I could have said, “You’ve asked me a question that demonstrated you have not read our statute. How dare you question what I do?” And the chair [Queensland senator Ian Macdonald] said, “I haven’t read The Forgotten Children’s report because I’m far too busy.” How dare you do that when you are an elected parliamentarian and you are expected and required to read my reports. … I could have reacted very angrily to that and I am quite articulate and I can be very strong if I need to be: I could have used those skills, but I determinedly did not. It’s an environment in which I must be respectful.
So Professor Triggs seems to think quite similarly to me about representing her organisation. But only in certain “environments”. This isn’t about her duties in public as President of the Commission. So of course it leads to a situation where she’s “respectful” to the faces of the Parliamentarians because it seems to be called for by the ‘environment’ (She doesn’t explore the possibility that the way the ‘environment’ feels is a product of it being an iconically public occasion with Hansard keeping a verbatim record and so on.)
And it turns out that after all the respect she shows the parliamentarians that particular environment, she can then hightail it out of that environment and tell us that she had her fingers crossed the whole time. She can tell us what it was like in ‘reality’. They’re a pack of ignorant, opportunistic liars and thugs. The respect was all for show! I can almost imagine her saying, as Philip Adams sometimes leans conspiratorially into the microphone and invites his guests to share a secret which will remain between himself and the gladdies. So if you read it in the Saturday Paper, you have a duty to keep it to yourself.
Please don’t mention it in public. Unless you’re giving an interview in a friendly ‘environment’ that is.