Australian Notes

Australian Notes

13 May 2017

9:00 AM

13 May 2017

9:00 AM

Let’s keep Triggs for the fun of it

I wouldn’t trust Malcolm Turnbull or George Brandis to pick what type of coffee my next cup should be, so by orders of magnitude I don’t trust them to pick Gillian Triggs’ replacement to run the awful Australian Human Rights Commission. After all, Brandis and Turnbull are the two who decided to replace Tim Wilson at the HRC with Ed Santow – a cultural lefty who has yet to say a single, solitary word in defence of Bill Leak or the QUT students. Yes, ladies and gentlemen, Santow’s a Coalition pick.

Then there’s the Greens party person Malcolm chose to put in his office; there’s Martin Parkinson; and there’s the new head of the ABC, ‘Mr See No Bias, Hear No Bias’. Or think about the appointment of top judges. In the US, Trump made appointing non-activist judges – judges who wouldn’t just make things up at the point of a law’s application, so legislate from the bench – a central plank of his presidential campaign. He knew people were sick of a US Supreme Court that was taking ever more decisions out of the hands of the elected branches. And as it turned out, according to exit polls last November, over 1 in 5 US voters said that who would be appointed to the Supreme Court was the biggest factor in whom they voted for. In nominating Neil Gorsuch, and fighting to see him confirmed, Trump did not disappoint any of those voters who, like me, prefer their top judges to be interpretively conservative – to apply the law not to half write it. Indeed, Neil Gorsuch is one of the best picks to a top Anglosphere court in my lifetime.

By contrast, the Coalition in Australia has not made an inspiring pick to the High Court of Australia since Callinan and Heydon, and both are now retired. Here’s a brutal insight. For interpretive conservatives like me, people who want their judges externally constrained rather than looking inside themselves and doing whatever mumbo jumbo comes with belief in a ‘living Constitution’, then the best current High Court of Australia judge was a Labor pick, Pat Keane. How damning is that for a supposed Liberal party?


So as I said, I wouldn’t trust Brandis and Turnbull to pick my cereal or type of tea. And yet they will soon have to pick the person who will replace Gillian Triggs, HRC head honcho and el presidente. Of course most of us right now are still incredulous that ‘Liberty Victoria’ has awarded Ms Triggs its free speech Voltaire award. Actually, if you consider how left-leaning this organisation is (any bets on whether it gets taxpayer money?) and look at some past winners then it’s not that surprising. Remember the John O’Sullivan law: Any body that is not overtly right wing will over time become left wing. (The Liberal Party these days also proves that law, n’est-ce pas?)

Some of you may have seen the acting president of Liberty Victoria, Professor Spencer Zifcak, try to defend the award in the letters page of the Australian. So, he pleaded, Gillian delayed her inquiry into children into detention ‘because she considered that the process would be affected adversely by its conduct in the politicised environment of a federal election’. But no election campaign was in fact then underway. Julia Gillard had simply slotted in a forecasted election some nine months in the future, but the government was certainly not in caretaker mode. Oh, and Zifcak claims the Race Discrimination Commissioner was not spruiking for business, not encouraging people to make 18C complaints, against Bill Leak. Well, the average person on the Clapham omnibus (to use an old-fashioned legal standard) certainly would think that’s what Tim Soutphommasane was doing. I do. Every lawyer I’ve talked to does, too. And then there are Ms Triggs’ memory lapses. No misleading of parliament here says Zifcak, just ‘mistakes under pressure’. Well, very convenient mistakes that always went her way then, Spencer.

And of course in his long letter attempting to defend what to me is an Orwellian choice for defender of freedom of speech, Zifcak nowhere says what Triggs actually did to promote free speech. Was it her musing that it’s quite unfortunate that people still have scope to say whatever they like around the kitchen table? (‘Sadly you can say what you like around the kitchen table at home’ is a quote by Ms Triggs at a Bob Brown fundraiser.) No? Then was it her defence of the gist of 18C, which to my mind is anti-free speech? Or was it that Liberty Victoria liked her embrace of international human rights law (which itself in my view is anything but a big defender of free speech)? Apparently Zifcak and his gang wanted to recognise Gillian’s ‘courage under political and media attack’, which is inherently something that is judged from a political perspective – as I think that the attacks on Triggs were completely warranted and Spencer does not – but more to the point it has nothing to do with upholding free speech either way. Courageous or deserving of attack, Triggs did nothing for free speech in this country. Zippo. Zero.

And yet Turnbull, almost immediately after his defenestration of Tony Abbott, hastened to have Triggs over for tea. Soon he and Brandis will be picking her replacement. And even I feel sorry for them on this front, because who on the right side of politics would want the job? Seriously, who would want it? The HRC is terrible and should be scrapped. If you agree with that then you’d only take the job if you were promised you would be starting the process of shutting down the HRC. But the Libs don’t have the cojones to do that. So the only enticement is the money; the big, hefty salary. Or maybe you might see it as a stepping stone into parliament? That’s been done before. But even the money angle won’t work. It might induce a legal academic on a salary like mine.But it’s not going to be anything other than a massive pay cut for a top barrister.

So whomever they pick is very likely to be, well, awful. In fact, in a weird kind of way I’m in favour of renewing Gillian Triggs in the job for another term. If you haven’t the courage to shut down the HRC then the next best thing is to have it run in a way that brings the body into widespread disrepute. Stand up Gillian and accept that award. It’s one you actually deserve.

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