Thursday, 26 February 2015
In October 2014 the Abbott Government received a draft copy of the Forgotten Children Report for comment before publication and then the public attacks on the President of the Australian Human Rights Commission began in earnest
In Senate Estimates on 24 February 2014 evidence (beginning at 09:06) before the Legal and Constitutional Affairs Legislation Committee clearly stated that a draft of The Forgotten Children Report was sent to the Abbott Government on 3 October 2014 for comment prior to preparation of the final report and its publication by the Australian Human Rights Commission:
Prof. Triggs: It is normal process, in fact acquired process, that we provide a draft of the report to the Department of Immigration and to the Attorney. We provided that in early October. The normal process is that we give the department and the Attorney's office an opportunity to read the draft that we have worked on. They then respond with any comments that they might have and we then adjust the draft to take account of those comments and we produce a final report. That is then printed and given to both the Attorney and the minister for immigration, and we did that on 11 November. In effect, at least three to four weeks before that, both ministers had access to the draft, but not, of course, until 11 November did they have the concluded conversion that had taken into account the concerns expressed by the department of immigration.
Senator JACINTA COLLINS: You mentioned that early October is when the draft was first provided. Can you take on notice the precise date for me?
Prof. Triggs: I will take on notice the exact date.
Senator JACINTA COLLINS: If it can be provided during the course of the morning, that would be useful. Let's move on to some—
Prof. Triggs: Can I answer that? We in fact do have the data. It was on 3 October 2014 that we provided the preliminary findings to the department of immigration.
Senator JACINTA COLLINS: So preliminary findings versus draft report or is it the same thing?
Prof. Triggs: The preliminary findings are designed to give the department and the Attorney's office an opportunity to comment on that draft. They did not receive the final printed version until 11 November. There was well over a month—about five weeks—before the final version was in their hands in printed form.
Senator JACINTA COLLINS: Apart from providing the first draft or, as you have said, the preliminary findings—I think we are talking about the same thing—
Prof. Triggs: Yes [my red bolding]
The public attacks on the integrity and impartiality of the President of the Human Rights Commission, Prof. Gillian Triggs, began after that date.
On 11 November 2014 the Abbott Government received the final version of The Forgotten Children Report and, Prof. Triggs began to be monitored by government according to this report in The Guardian on 18 February 2015:
The shadow attorney general, Mark Dreyfus, told Guardian Australia he had complained to Brandis after the attorney general instructed his staff member be present when Dreyfus met Triggs late last year, not long after the commission delivered to government its final report on children in detention. The meeting was not about the report.
Triggs had informed Brandis that Dreyfus had asked to meet her as a “usual courtesy”. When Brandis’s deputy chief of staff, Josh Faulks, turned up at the commission’s Sydney office at the appointed time for the meeting, both Dreyfus and Triggs asked him to leave. Faulks refused, saying he was acting on the instructions of the attorney. The meeting proceeded with Faulks watching.
“Independent statutory agencies ought to be free to consult with anyone in Australia, including the opposition, without being supervised or overseen by a ministerial adviser,” Dreyfus told Guardian Australia.
“It is appropriate for ministerial advisers to be present at security briefings provided to the opposition, or when the opposition is receiving a briefing from a government department, but it is not appropriate for ministerial advisers to oversee meetings with an independent statutory agency.”
While it is demanding that staffers sit in on meetings between Triggs and the opposition, the government is refusing to meet her. Guardian Australia understands the prime minister, Tony Abbott, has refused requests for meetings, and Brandis has been unable to find time in recent months.
On 20 November 2014 Senate Estimates Nationals Whip Senator O'Sullivan openly questioned (beginning at 12:16) Prof. Triggs on the matter of her independence and conduct and later went on to harry her at some length before complaining about a lack of consistency in her answers to his questions despite often allowing her little or no time to answer. Ending with this has been the untidiest passage of evidence that I have seen presented to any inquiry I have sat on—admittedly I have only been here for nine or 10 months.
Mainstream media reported on this estimates hearing, with The Australian on 22 November 2014 presenting what was essentially the Abbott Government’s perspective:
THE future of Human Rights Commission president Gillian Triggs is under a cloud after a disastrous appearance before a Senate committee, during which she contradicted her evidence about the political considerations of delaying an inquiry into children in detention. Under questioning, Professor Triggs revealed she had decided an inquiry was necessary early last year but did not act until after the federal election because she feared it would be “highly politicised” and “very destructive”.
And after denying she raised the matter with Labor before the election, she later admitted discussing it with two former immigration ministers, Chris Bowen and Tony Burke. It is understood the Abbott government and the minister who oversees the commission, Attorney-General George Brandis, have lost faith in Professor Triggs.
Her position appears untenable. She is less than halfway through a five-year term and under the commission’s act can only be dismissed for “misbehaviour” or serious breaches of standards. She has promised to release a “detailed chronology of events”…..
On 15 December 2014 the Abbott Government announced a 30 per cent funding cut to the Commission over three years.
Chris Moraitis, Secretary of the Attorney-General's Department (a position he has held since September 2014) confirmed in Senate Estimates (beginning at 09:06) that on 3 February 2015 the Attorney-General had offered Prof. Triggs another position which would entail her resigning as President of the Human Rights Commission.
Mr Moraitis: ….I have authority from the Attorney to mention what his instructions were. They were as follows: unfortunately, the Attorney does not have confidence in Professor Triggs in her present role as commission president. Nevertheless, he retains significant goodwill towards Professor Triggs and has high regard for her legal skills. In that respect, the government would be prepared to consider positively a senior legal role for her, which I specifically mentioned—a specific role, which I am well aware of. Those were the terms in which I conveyed my message to Professor Triggs.
When I saw Professor Triggs on 3 February, I went straight to the point, as Professor Triggs has made clear. I said, 'As you recall, you had asked me to seek the Attorney's views about your standing in the commission and I am here for that person, to be able to give you the courtesy in person to tell you what his views are.' I relayed those views. I never said—I have never sought her resignation. I said that the Attorney, unfortunately, had lost confidence in her as chairman. However, he had high regard for her skills and had significant goodwill towards her. That was my understanding of the discussion and that was my recollection. Thank you…..
Senator WONG: We will come back. There is obviously a lot to ask. In the conversation with the Attorney-General, you say he indicated that he had lost confidence in Ms Triggs as the President of the Human Rights Commission?
Mr Moraitis : That is correct.
Senator WONG: At any point in that discussion, was the possibility of her resigning from the position raised?
Mr Moraitis : I do not recall. My recollection was—
Senator WONG: Sorry, you do not recall—
Mr Moraitis : I do not recall that being said.
Senator WONG: You do not recall?
Mr Moraitis : No. I was asked to convey the view that he had lost confidence in Professor Triggs.
Senator WONG: No. I will come in detail to the actual conversation with Professor Triggs. I am only at this point asking you questions about the telephone call with the Attorney-General which prompted you to set up a meeting with Professor Triggs, where she asserts that the conversation occurred. Can we go back to this?
Mr Moraitis : Yes.
Senator WONG: At any point in the discussion with the Attorney, on 2 February, did you understand that the government was seeking Professor Triggs's resignation?
Mr Moraitis : My conclusion was that that would be one option, yes, given that they lost confidence—the view was that the Attorney did not have confidence.
Senator WONG: So it was a live prospect, for you—an option—that the resignation would be sought?
Mr Moraitis : My instructions were to convey what his views were about the president, which were that he had lost confidence in the president.
Senator WONG: Were his views also that she should resign?
Mr Moraitis : I do not recall him saying that expressly.
Senator WONG: Did you understand that he wanted her to resign?
Mr Moraitis : That was an option I understood from that discussion.
Senator WONG: So it was clearly an option from that discussion that the Attorney wanted her to resign?
Mr Moraitis : That was my take as a possibility….
Senator WONG: So let's talk about the second telephone call. When was that? Was it the day before the meeting?
Mr Moraitis : As I said, that was Monday, 2 February.
Senator WONG: And the Attorney phoned you?
Mr Moraitis : Correct.
Senator WONG: Where did you say you were when you took the call?
Mr Moraitis : I did not say. If I recall, I was in my office.
Senator WONG: Was anyone else present?
Mr Moraitis : Not that I recall.
Senator WONG: Did you take notes of that telephone call?
Mr Moraitis : I took some notes, yes.
Senator WONG: Where are those notes?
Mr Moraitis : I cannot find them, I am sorry. I had them on a notepad.
Senator WONG: Have you looked for them?
Mr Moraitis : Yes, I have. I can assure you of that.
Senator WONG: How long did the call last, approximately?
Mr Moraitis : About a minute or so.
Senator WONG: And in that minute what did the Attorney convey?
Mr Moraitis : What I said in this morning's statement.
Senator WONG: Could you repeat it for me.
Mr Moraitis : That the Attorney had lost confidence—did not have confidence—in Professor Triggs as chairperson of the commission. He nevertheless retained significant goodwill towards her and had high regard for her legal skills. He wished me to point out that the government was prepared to consider a specific senior role, which was mentioned to me and which I conveyed, for Professor Triggs. That was my recollection.
Senator WONG: So the Attorney had lost confidence in her; there was significant goodwill towards her; he had a high regard—was that the phrase?
Mr Moraitis : For her legal skills, yes.
Senator WONG: And he wanted you to indicate a specific role—you used that phrase.
Mr Moraitis : Yes.
Senator WONG: What was the role?
Mr Moraitis : I would like to tell you what the role is, but I have been told that actually it is quite sensitive, involving other matters that I would rather not go into in public.
Senator WONG: Is that a public interest immunity claim?
Mr Moraitis : The general issue is subject to deliberation.
Senator WONG: Did you tell Professor Triggs what the role was?
Mr Moraitis : Yes. Professor Triggs was aware of the role before I even mentioned it to her.
Senator WONG: So there was a specific senior role that the Attorney mentioned to you—
Mr Moraitis : Correct.
Senator WONG: that the government would consider giving to Professor Triggs.
Mr Moraitis : A senior role, given her legal skills and the respect for her legal skills.
Senator WONG: If she resigned?
Mr Moraitis : No, it was not put in those words.
Senator WONG: What were the words?
Mr Moraitis : I did not use the word 'resign'.
Senator WONG: No, all right. I am asking you: what were the words?
Mr Moraitis : I said what I said in my statement and what I just said now. 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.
Senator WONG: I again press my question: what was the role?
CHAIR: You have answered, Mr Moraitis. You do not need to keep answering.
Senator Brandis: I would be very eager to tell you, Senator Wong, but Mr Reid's counsel—Mr Reid, as you know, is from the Office of International Law—to me and to the secretary is that it would not be helpful for Australia's interests if this were to be debated in a public forum.
Senator WONG: I am not debating it; I just want to know—
Senator Brandis interjecting—
Senator WONG: I had not finished. I just want to know what was offered to her.
Senator Brandis: Is this to me or to Mr Moraitis?
Senator WONG: To any of you.
CHAIR: Mr Moraitis has already answered the question, so he does not have to keep answering the same question.
Senator WONG: If there is a claim of public interest immunity, which actually has not technically been made, I would ask that it be referred to the Senate and I will move on.
Mr Moraitis : I have asked Mr Reid whether I can mention the specific role.
Senator WONG: He is not the judge; the Senate is the judge, actually.
Mr Moraitis : Very well, thank you….
Senator WONG: How did you come to the conclusion that you have given evidence about that resignation was an option?
Mr Moraitis : That was my take on the options available from that discussion.
Senator WONG: Did you understand that the role would only be available if resignation took place?
Mr Moraitis : Well, my understanding was that you cannot have two roles in this sort of situation.
The government chose not to table and release the final version of The Forgotten Children Report until 11 February 2015.
Immediately after that the attack rhetoric rose in volume and intensity.
Prime Minister Abbott on 12 February: It would be a lot easier to respect the Human Rights Commission if it did not engage in what are transparent stitch-ups like the one that was released the other day. I say to the Human Rights Commission: if you are concerned about real human rights, real human decency, real compassion for people, you should be writing congratulatory letters to the former Minister for Immigration and Border Protection, who has stopped the boats, who has saved lives and who has got children out of detention.
"Where was the Human Rights Commission during the life of the former government when hundreds of people were drowning at sea?"
"This is a blatantly partisan politicised exercise.
"The Human Rights Commission should be ashamed of itself."
National Party MP George Christensen on 13 February: A day after The Forgotten Children report was released a chorus of Coalition backbenchers ratcheted up criticism of Professor Triggs, expressing a loss of confidence in her and questioning her impartiality. Senior government figures remain deeply dissatisfied with Professor Triggs.
Coalition MP George Christensen, who chairs a committee which is weighing up whether to investigate “systemic bias’’ at the HRC, called for her to step down.
“I have more confidence in getting impartial advice from Green Left Weekly than from Gillian Triggs,’’ Mr Christensen told The Australian.
“She has effectively sidelined herself and the HRC from having any credibility with the Abbott government. If she wants to do the right thing by the commission and have their views listened to by the government again, she needs to tender her resignation.’’
Prime Minister Abbott on 24 February: “It is true that the government has lost confidence in the president of the Human Rights Commission” “
"It's absolutely crystal clear, this inquiry by the President of the Human Rights Commission is a political stitch up. It's a political stitch up and it will be called out by members of this government.
Attorney-General on 24 February: "I felt that the political impartiality of the Human Rights Commission had been fatally compromised",…
"I had reached the conclusion, sadly, that Professor Triggs should consider her position."
"I would be glad for Professor Triggs to be of service to the Australian government but I am afraid that the reputation of the commission will not survive the reputation of political partisanship, which I am sorry to say Professor Triggs [has].
By 24 February 2015 Senator O’Sullivan was also back again in Senate Estimates covering the same old ground with Prof. Triggs ad nauseam (beginning at 09:06) and in doing so confused a brief state of the system report with the Human Rights Commission inquiry report while at the same time confusing Prof. Triggs generally.
On 24 February the Chair of Legal and Constitutional Affairs Legislation Committee Senate Estimates hearing, LNP Senator Ian MacDonald, who is a fierce critic of the report stated:
It may have changed in the final report, I do not know—as I have indicated, I have not bothered to read the report because I think it is partisan. This is why.
Besides a blind rage that the content of The Forgotten Children Report was not confined solely to the actions of the former Labor federal government, could it be that this unprecedented attack on the Australia Human Rights Commission is an attempt to discredit this report in the eyes of the United Nations which has already expressed concerns about how asylum seekers are treated by this country.
To be continued……..