We all know George Brandis is a pompous git. Bernard Keane writes persuasively (pay-walled) that he is an incompetent pompous git, both as a lawyer and as a politician. Labor says that he should resign for misleading parliament, and the lying about lying. Michelle Grattan says there is talk about him getting the shunt, either to the High Court (unlikely – who would wish that on the court?), or to London as high commissioner, as Alexander Downing’s term is coming to an end in May.
Anyway, there is open warfare between Solicitor-General Justin Gleeson and Attorney-General George Brandis. A senate inquiry is working to sort it out, and may save Brandis by disallowing his directive that the advice from the SG should be sought through him, even if it’s the PM or GG. Continue reading Saturday salon 8/10→
Innes was appointed in 2005 under Philip Ruddock, who said he must do the job “without fear or favour”.
I disagreed many times on policy issues with Howard ministers and staffers. Our discussions were sometimes “free and frank”, usually civil and never personal. My views were regularly questioned, my integrity was not.
Under Rudd Robert McClelland became attorney general. He said to commissioners:
Sometimes you’ll give us a kicking. Sometimes you’ll support us. That’s your job.
He took the Ruddock approach, sometimes questioning our recommendations, but never our integrity, as did attorneys-general Nicola Roxon and Mark Dreyfus.
Things changed under Brandis, he says. Now on the Triggs matter, Innes says:
Part of our democratic system, and the rule of law, provides that a key duty of any attorney general is to defend judges and statutory officers doing their jobs, because they are not in a position to easily defend themselves.
“It changed under that of George Brandis, where the officers ourselves, the commissioners ourselves, the statutory officers ourselves were questioned, rather than what we were putting to the Government and the attorney from the perspective of the Human Rights Commission.
“Our integrity was questioned in the same way that Gillian Triggs’ integrity has been questioned in the last month.”
The motion was supported by Labor, the Greens, the Palmer United Party’s two senators and Tasmanian independent Jacqui Lambie. South Australian independent Nick Xenophon and Family First Senator Bob Day both sided with the Government.
Brandis argued that the Human Rights Commission is not a court and not protected like the judiciary:
It should never be above criticism. No institution of the executive Government should be beyond criticism and beyond scrutiny. Not the ministry, not the public service, not agencies within the executive Government.
This Parliament should be a guardian, a fierce guardian of its rights to call members of the executive, and agencies of the executive Government into account.
On that basis it is the duty of politicians under parliamentary privilege to attack public servants who can’t defend themselves.
Michael Bradley, the managing partner of Marque Lawyers, says that Brandis has trampled all over the conventions that govern his own role as first law officer. In the the Westminster system the Attorney-General is supposed to have a higher duty, beyond politics, as the primary defender of the rule of law and our system of justice. He sees the HRC as included in the system of justice. It’s important that the HRC should be free to say what the Government does not want to hear. His bottom line:
If Triggs’s testimony is correct, the fact that Brandis sought to remove her from her position by offering her another job raises serious questions about his integrity. Where his actions leave us is in the untenable situation that his working relationship with Professor Triggs is irretrievably broken.
Consequently, one of them will have to go. It shouldn’t be her.
Denis Muller at The Conversation argues that The Australian newspaper has been running a concerted campaign on the Triggs issue. The paper’s position is ideological, he says, and inappropriate for the fourth estate.
ABC FactCheck has found Gillian Triggs’ assertion that in the first months of the Coalition Government the time children spent in immigration detention “was reaching quite exceptional levels” is correct.
Innes also criticised Tim Wilson’s appointment as human rights commissioner without a selection process and fresh from the Institute of Public Affairs, whose policy was to abolish the Commission. This left Susan Ryan covering disabilities as well as age discrimination, an unfair burden.
Chris Uhlmann and Sabra Lane say that pressure is building in the Liberal Party to remove Prime Minister Tony Abbott and that backbenchers and ministers say the Malcolm Turnbull now has the numbers. The leadership issue has risen again because of the brutal attack launched on Gillian Triggs as President of the Human Rights Commission. Ben Eltham says:
In a show of belligerence that has stunned seasoned political observers, the Abbott government has declared a personal vendetta against one of the most respected lawyers in the land. Triggs’ personal ethics have been questioned, her competence and impartiality attacked, and her conduct impugned.
Turnbull has certainly put some distance between himself and Abbott on the matter. He says that criticism of Triggs “misses the point” the point being the children in detention. Further, he said that Triggs was “a very distinguished international legal academic”.
The findings of The Forgotten Children report should shame us all. Triggs found that children have been sexually and physically assaulted in federal care. Some children have been detained for more than 27 months. Many are denied education. Unaccompanied children are locked up in adult compounds. They are mentally and emotionally traumatised. There have been multiple instances of attempted suicide and self-harm.
A government with a scintilla of compassion would have welcomed the report, and redoubled its efforts to get children out of these hell-holes. And, if the Abbott government had wanted to, it could have spun the findings in its favour. For instance, the report found that there are fewer children in detention now than under the previous Labor government.
Instead the Government advised her that it had lost confidence in her and suggested that her legal talents might otherwise be employed by the Government. She declined. It then launched a public attack, bringing up also her finding in the Basikbasik matter.
A galaxy of legal scholars has signed a letter supporting Triggs, pointing out, inter alia, that the Government is not obliged to take her advice, a point she understands well.
Distinguished retired lawyer Hal Wooten tells why he signed up. He respects Triggs personally and professionally, the facts of the report speak for themselves.
Once again Mr Abbott has proved a loose cannon, but this time his wild firing threatens grave pain and injustice to a courageous and honourable public servant, and the undermining of a much needed national institution, as well as obscuring the terrible effect of detention on innocent children.
Richard Flanagan says that some day a PM will apologise for what it is now doing. He thinks:
The only accusation of Gillian Triggs with the ring of truth is that she has lost the confidence of the government – but then so too has Tony Abbott. Gillian Triggs’s real crime is that as human rights commissioner she spoke up for human rights with a government that has no respect for them.
He also sees women and children as being at the bottom of the pile, as it were. Triggs is being attacked as a woman speaking up for children.
Bill Shorten says Tony Abbott sank to ‘a new low’ over Gillian Triggs’s treatment and that Abbott was ‘psychologically unsuited’ to the prime ministership.
Annabel Crabb says the Government is thumping Triggs when it could/should be thumping Labor. It has also presented Labor with the moral high ground.
One point is that there were 1500 children in detention when the LNP took over. Now there are 126.
For the record, from Berard Keane at Crikey, this is what Chris Moraitis from Brandis’s department told the Senate hearings:
“There were essentially three points that I was asked to make. One was that the Attorney had lost confidence in Professor Triggs as chairperson. He retained significant goodwill towards her and had high regard for her legal skills. In that respect, he was asking me to formally put on the table or mention that there would be a senior legal role, a specific senior role, that her skills could be used for.”
Brandis later quibbled over the word “position” being tossed around, emphasising that the offer was for a role. But an offer there surely was, later denied by Julie Bishop representing Brandis in the House of Representatives.
Meanwhile much of importance, such as the McClure report on social security, is not being discussed.
During the last week in March, before this blog came to life, Attorney General George Brandis introduced to parliament an exposure draft of changes to the S18c of the Racial Discrimination Act. Brandis goes beyond everyone’s “right to be a bigot”. He seeks effectively to protect the right of individuals, especially those working in the media, to use hate speech.
Much of the discussion and commentary has been in terms of free speech. I agree with Mark that this is to mistake fundamentally the aim of legislation against hate speech.
Its purpose is to provide redress against harm, harm felt by specific individuals and groups.
It’s not about freedom of speech. It protects speech which is justified on several grounds – including literary and artistic merit (so the argument about Salman Rushdie is entirely specious). It’s about not doing harm through the expression of hateful speech.
If we consider the effects of actually existing racism (or any other form of hate), it doesn’t take too much reflection to see that hurt leads to harm pretty quickly – it’s demonstrable in the impacts of hate speech on identity and thus wellbeing, and there’s a path from wounded identity to self harm, even suicide. (My bold)
Comments on the draft are now being considered by the Government. There’s a whisper that they reconsidering, but the question is still open. You can send Abbott/Brandis a message by signing this petition against hate speech.
In the following section I’ve laid out the nuts and bolts of the proposed changes.
Proposed changes to S18c
Simon Rice explains that the current test for racial vilification is “conduct causing offence, insult, humiliation or intimidation”. Offence, insult and humiliation have been dropped in the proposed changes. Verboten now is an act which is reasonable likely
(i) to vilify another person or a group of persons; or (ii) to intimidate another person or a group of persons.
Intimidate means to cause fear of physical harm:
(i) to a person; or (ii) to the property of a person; or (iii) to the members of a group of persons.
Vilify means to incite hatred against a person or a group of persons.
For an act to be unlawful it must must be “otherwise than in private” and must be done
“because of the race, colour or national or ethnic origin of that person or that group of persons.”
So the focus is now to be on vilification and intimidation (causing fear of physical harm). It’s OK to cause offence, insult and humiliate.
Vilification and intimidation are permissible if they involve:
words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.”
“is to be determined by the standards of an ordinary reasonable member of the Australian community, not by the standards of any particular group within the Australian community.”
The actual feelings of the target person or group are irrelevant.
Acts are to be judged independently of their actual effects, rather on what their effects would be if perpetrated on some mythical average member of the dominant group in society.
To me, humiliating someone means putting them down, diminishing their esteem in their own eyes and in the eyes of others. To do that on the basis of race, colour or national or ethnic origin is to cause personal and social harm, is racist and frankly appalling. It’s a form of bullying, is tantamount to violence and should be illegal.
Some might argue that to tell the truth can involve offence and insults. Nevertheless I would argue that to offend or insult someone in relation to race, colour or national or ethnic origin means that you regard them as defective or inferior on those grounds. Again harm is done and I have no difficulty in making such acts illegal.
Truth telling appears to have no relevance to Brandis’s notion of free speech. A person can be humiliated, in public, by someone telling a pack of lies, and that’s OK.
Hate speech, racial intimidation and vilification in the public sphere is acceptable in Brandis’s world. To quote Michelle Grattan
In other words, anything goes in the name of free speech, accurate or not.
Vic Alhadeff reminds us that we will never have completely free speech:
“The late Justice Lionel Murphy said: ‘Freedom of speech is what is left over after due weight has been accorded to the laws relating to defamation, blasphemy, copyright, sedition, obscenity, use of insulting words, official secrecy, contempt of court and parliament, incitement and censorship’.”
That’s eleven categories imposing limits on what we are permitted to say in public.
All in all Brandis has cooked a rather nasty brew, emanating I’m afraid from a rather nasty cook. Brandis should remember that the robustness of parliament has resulted in suicide attempts. He seems to want to live in “a world of unrestrained biffo all round”, to borrow a phrase from Grattan.
“I think George saying this is about the rights of the bigots really laid bare the philosophy behind these changes.
“For them, it seems to be an abstract philosophical or legal argument. For them it’s a game, it’s a debate about words and abstract principles.
“For people who have experienced racism, it is a deeply personal debate, and it’s actually a debate about real people and real hurt.
“It’s a debate about real people in Australia, what happens on our buses and our trains, in the pubs on the football fields and on our streets. It’s about the message that our parliament sends and what I find missing, apart from the very offensive things in the debate, is empathy and compassion.”