This letter was reportedly sent to The Australian which appears to have declined to publish.
The Conversation January 2015:
We, the undersigned, are concerned
about recent public criticism of one of Australia’s most respected independent
public office-holders, Australian Human Rights Commission (AHRC) President
Gillian Triggs. Below we comment on the relentless attacks, including from
Prime Minister Tony Abbott, of her recommendation in the Basikbasik
matter. In our view, they are based on a misunderstanding of the role
of the commission.
Independent public office-holders are
an important part of modern democratic societies. Their task is to ensure
accountability for abuses of power by government. Their capacity to perform
this role depends on their independence and ability to act impartially.
Independence and impartiality are
undermined when a political leader publicly attacks holders of public office
and when the media presents inaccurate accounts of the work of public
institutions.
The Australian
Human Rights Commission Act provides in Section
11(1)(f) that the commission has a function to:
… inquire into any act or practice
that may be inconsistent with or contrary to any human right.
In the Basikbasik case, which has been
at the heart of the recent criticism, the AHRC did not recommend that Mr
Basikbasik be released into the community forthwith. Rather, the commission
found that Mr Basikbasik had been held in detention for a total of 13 years – a
six-year period of imprisonment following a criminal conviction, then a further
seven years in immigration detention.
The commission found that the
government had not established that continued detention after completion of
sentence was necessary. It was therefore arbitrary and in breach of the human
rights standards Australia has voluntarily accepted. The commission recommended
that a less punitive form of community detention be found for Mr Basikbasik and
that he be compensated for his lengthy arbitrary detention, in line with widely
accepted national and international standards and precedents.
President Triggs has made
clear that she respects the government’s right to reject her findings,
including her recommendations. The government should likewise respect the
commission’s role in investigating complaints and reporting its findings to the
minister according to law.
If the government disagrees with the
commission, providing a reasoned explanation of why it considers the
commission’s reasoning or conclusions to be wrong as a matter of law would be
the most constructive way of contributing to the discussion of the important
and sensitive issues involved in this case.
In our view, the President of the
Australian Human Rights Commission has carried out her duties under the Act
with independence, impartiality and professionalism.
Signed by:
Professor Don Anton, Professor of
International Law, Griffith Law School, Griffith University
Associate Professor Afshin
Akhtarkhavari, Griffith Law School, Griffith University
Kevin Boreham, Lecturer, ANU College
of Law, Australian National University
Professor Andrew Byrnes, Australian
Human Rights Centre, Faculty of Law, UNSW
Professor Hilary Charlesworth, Centre
for International Governance and Justice, College of Asia and the Pacific,
Australian National University
Professor Holly Cullen, Faculty of
Law, the University of Western Australia
Dr Alice de Jonge, Senior Lecturer,
Department of Business Law & Taxation, Monash University
Professor Andrea Durbach, Director,
Australian Human Rights Centre, Faculty of Law, UNSW
Emeritus Professor Judith Gardam, Law
School, University of Adelaide
Professor Fleur Johns, Faculty of Law,
UNSW
Professor Sarah Joseph, Castan Centre
for Human Rights Law, Monash University
Professor David Kinley, Chair in Human
Rights Law, Sydney Law School, University of Sydney
Professor Penelope Mathew, Griffith
Law School, Griffith University
Professor Jane McAdam, Scientia
Professor and Director, Andrew and Renata Kaldor Centre for International
Refugee Law, UNSW Law
Associate Professor Adam McBeth,
Faculty of Law, Monash University
Associate Professor Justine Nolan,
Australian Human Rights Centre, UNSW Law
Professor Anne Orford, Michael D Kirby
Professor of International Law, Law School, University of Melbourne
Professor Dianne Otto, Francince V.
McNiff Chair in Human Rights Law, Director, Institute for International Law and
the Humanities, Melbourne Law School
Professor Joellen Riley, Faculty of
Law, University of Sydney
Professor Ben Saul, Professor of International
Law, Faculty of Law, University of Sydney
Professor Tim Stephens, Professor of
International Law, Faculty of Law, University of Sydney
Professor John Tobin, Melbourne Law
School, University of Melbourne
Associate Professor Margaret Young,
Melbourne Law School, University of Melbourne
Associate Professor Matthew Zagor, ANU
College of Law, Australian National University
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