Representing a public interest organisation? The case of Gillian Triggs

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?”

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.

This entry was posted in Cultural Critique, Economics and public policy, Law, Philosophy, Political theory. Bookmark the permalink.
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Tyler
Tyler
5 years ago

I think there’s an argument that given the particular policy area and its relationship to the position she holds her approach has been justified. Obviously human rights talk etc is a highly contested political position in reality but she’s not allowed to deal with reality she has to deal with political reality.

The political reality is our government pretends to take human rights law and commissions like the HRC seriously whilst deliberately inflicting harm on asylum seekers (and all sorts of other groups with minimal political value) without the faintest concern for our supposed HR principles. Of course our state and political representatives have every legal entitlement to do so, this entire framework only exists within our statutory law and can be over-ridden as desired. However if they refuse to do that for tactical reasons i think it’s a bit much to expect the guardians of these imaginary principles within our institutional framework to react with respect to the transparent dishonesty of our political representatives.

The productivity commission quite rightly points out the stupidity of our government on all sorts of issues (IP in very recent times) but for obvious reasons inflicting deliberate harm on asylum seekers is seen as rather more inflammatory.

Patrick
Patrick
5 years ago

Very good article. And staggeringly performance. Obviously the one about dean of law school is pretty good, quite an achievement to say that in public. At least Pauline Hanson never said that she’d ran a fish and chip shop so how hard could government be?

But the prize goes to her ability to (near-)simultaneously think that she “could have destroyed” her interlocuteurs but also that she must not because “The reality was that they could suffer no harm from this”…

She should stand for parliament.

Pappinbarra Fox
Pappinbarra Fox
5 years ago

Man, Nicholas, you do an excellent line in verballing. Keep up the good work son.

R. N. England
R. N. England
5 years ago

I think Gillian Trigg’s inconsistencies derive from the underlying weakness of the human rights argument. Human rights seem to consist of mere assertions about how people should treat one another– far too shaky a foundation for civilisation. Historical arguments would help, but they are not used enough.

For the last 70 years, behavioral scientists have been trying to convince the world that punitive control is always doomed to failures of various kinds. People have accepted this in the case of animal training, but they still irrationally cling to the habit of punishing their own species. People with highly anti-social habits need to be confined in order to protect the public, but a rational person would have them sentenced to confinement with “rehabilitation”, not with “hard labour” and other cruelties. The record of lawyers in the transition to a non-punitive culture is patchy to say the least. Most of them can’t throw off their addiction to the use of punishment as the ultimate sanction. If “human rights” are little more than the American way of life, they aren’t much help.

The scientific approach is more solid. But its answer to the present refugee problem is not yet clear. What is a non-punitive culture to do when the (entirely predictable) explosion of a highly punitive and highly refractory one brings people to its borders who will bring with them the very culture they are trying to escape? Probably the answer is to talk them out of the punitive aspects of their culture and its high birth rate. How successful would we be, when our own record is so patchy? And oh Jesus! Being able to hold onto their religion is a human right!

R. N. England
R. N. England
5 years ago
Reply to  Nicholas Gruen

Thanks Nicholas. I do think that when the substance of one’s argument is shaky, one’s style also suffers. Sooner or later one resorts to bashing one’s opponent over the head. Sooner in the case of Brandis & Co, and later for Trigg.

Stephen Mills
Stephen Mills
5 years ago

Thanks for this very interesting take on Gillian Triggs’ important and highly unusual interview with Ramona Koval in the Saturday Paper. But Nick is being a ‘bit harsh’ in his critique of Triggs, and overlooks some key elements of the situation the Human Rights Commissioner found herself in.

The key point is that Triggs was and remains a statutory office holder. As such she has significant immunity from ministerial direction. Unlike public servants, who are legitimately expected to be ‘responsive’ to the government of the day, statutory office holders are protected from government meddling – precisely so they can fulfil their statutory role rather than do the bidding of a politician. So it’s a bit misleading to present her as ‘representing a public interest organisation’ as per the heading on Nick’s blog (can we blame the subs?). That makes her sound like she was speaking for an NGO. But Triggs’ role is not to advocate for refugees/detainees; it is to perform certain statutory responsibilities in relation to human rights, which are (whatever Bob Carr or Jackie Lambie might prefer) enshrined in Australian law.

The main point of the Triggs saga, I think, is that the government tried to get rid of her and that she successfully resisted that pressure and survived. PM Abbott and A-G Brandis declared they had “no confidence” in Triggs – only to learn to their cost that she did not actually need their confidence. Any sensible statutory office holder would want to have the support of the government of the day but the Triggs saga demonstrates they don’t need it and can survive without it.

From a democratic perspective all this might seem illegitimate: why should elected MPs and ministers be shackled in any way from achieving the popular will? But it is of course just one of the multitudes of checks and balances built into our system. Anyway, part of the deal with statutory office holders is that they are (typically) responsible to parliament and subject to parliamentary oversight.

This is where the Saturday Review interview got really interesting, because the central concern is not, actually, the government but the parliament – and in particular the events surrounding this one hearing by the Legal and Constitutional Affairs legislation committee events. Nick is very critical of Triggs for displaying apparent respect while actually having her fingers crossed; she kept herself calm only now to reveal her true emotions to Ramona Koval in a newspaper interview. He says there was a duel between Triggs’ private and public persona, and the private self won, even though she was performing her public role in a public forum.

But read the full interview. Triggs says the committee made no distinction between her private and public self: it was focussed squarely on her private self. She accuses the committee of making an “attack at a personal level” on her. She further asserts that this behaviour amounted to “bullying” of her. She even goes on to compare this bullying with the various punishments and indignities meted out to people in the detention camps. (That last point I think is an unpleasant verbal trick and I wish she hadn’t said it).

Let’s go on to focus on the democratic and systemic elements of her complaint. Triggs accuses the committee of being ignorant of her legislation; she quotes the committee chair saying her hadn’t read her report; and she claims her minister (Brandis) was feeding questions to the committee during the hearing.

If this is parliamentary oversight of a statutory officer, it is a strange and inadequate form. It’s hard to see how the committee was advancing the public interest. And it’s even harder to see why we should be blaming Triggs for crossing the line.

derrida derider
derrida derider
5 years ago

A good post. I thought the whole brouhaha was about governmental arrogance, now I understand that the arrogance was not all on one side.

But you have lost sight of the point that the government’s behaviour in all this has been indefensibly nasty, personalised and (as she points out) wilfully ignorant, all in pursuit of a narrow political agenda. Professor Triggs’ own failings are real enough, but don’t justify their much worse ones.

derrida derider
derrida derider
5 years ago

To follow up:

It’s about her performance of her public role – the allegation being that it was biassed.
That’s not ‘personal’ (in the relevant sense), it goes to the merits. Were they tendentious, unfair or ignorant in doing so?”

Short answer to that last question: Yes. Longer answer: that is precisely the point Triggs made in that interview. Try reading the transcript: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Festimate%2F7e38f3fc-ccf4-4f43-b2f4-c50ef331052d%2F0002%22