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Christine Milne: 'George Brandis is unfit to hold the office of Attorney-General'

The Australian Greens Leader, Senator Christine Milne, speaks to a censure motion against Attorney General, Senator George Brandis, following his extraordinary attack of Dr Gillian Triggs.

Senator MILNE: I rise today to support the censure motion which cites the fact that the current Attorney-General is unfit to hold the office. It is absolutely clear that the rule of law is fundamental in a democracy. If we do not uphold the rule of law then we are descending into the kind of mess we have seen in other countries around the world. It is fundamental. What is extraordinary here is that we have a conservative government-which cloaks itself in the flag; which cloaks itself in law and order, in order to secure support in the community-which is actually not conservative. Members of this government are extremists in the way they attack the institutions in our democracy.

This is a really important point, and the Attorney-General is at the heart of this. It is his job as Attorney-General to defend the institutions of justice in our democracy. It is his job to defend the rule of law and uphold the rule of law and the independence of statutory authorities. Instead, we have seen the Attorney-General complicit in the Prime Minister's attack on the independence of the Human Rights Commission and, clearly, an attempt to destroy its President. That is extremely serious in a democracy. As the legal fraternity, in the letter of support that they released in January, said:

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.
That is precisely what we have had with the Human Rights Commission. That is why the government does not like it. In fact, they are the independent umpire of the state. It is essential here that we do support the Human Rights Commission, as an independent statutory authority, upholding the rule of law. It is particularly important in the case of Australia because we are unique in our treatment of asylum seeker children. No other country mandates the closed and indefinite detention of children when they arrived on its shores. Unlike all other common-law countries, Australia has no constitutional or legislative bill of rights to enable our courts to protect children.

This is a direct quote from the president, Professor Gillian Triggs:

The evidence documented in this Report demonstrates unequivocally that prolonged detention of children leads to serious negative impacts on their mental and emotional health and development. This is supported by robust academic literature.

It is also clear that the laws, policies and practices of Labor and Coalition Governments are in serious breach of the rights guaranteed by the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The United Nations High Commissioner for Human Rights also suggests in his opening address to the Human Rights Council that Australia's policy of offshore processing and boat turn backs is 'leading to a chain of human rights violations ...'

It is that quote from Professor Triggs which tells you why Prime Minister Abbott and Attorney-General Brandis are determined to try to destroy the credibility of the President of the Human Rights Commission: because it is the only institution which is calling out both the former Labor government and this government on their treatment of children as being contrary to the law. That is the job of the Human Rights Commission-to do just that. In fact, the Australian Human Rights Commission Act 1986 gave it the right to:

For the purpose of the performance of its functions ... hold an inquiry in such manner as it thinks fit ...

That is exactly what it did in relation to the cruel treatment of children, and it called it out in no uncertain terms. That is why the Attorney-General has set out to destroy the credibility of Professor Triggs and, in fact, the institution itself.

But it did not just start with the investigation into the detention of children. This government's attack on the Human Rights Commission started virtually the day after it was elected. If you go through the period of time from the election in 2013 until now, you find endless attacks on the Human Rights Commission. You find it there in the denial of access to Nauru and Manus Island detention facilities. You see it when Professor Triggs stood up on section 18C of the Racial Discrimination Act and was vilified, of course, by the Attorney-General as well for the stand-now it seems the Prime Minister has reversed his position on 18C and now wants to strengthen that particular part of the act. You also saw it with the refusal to reappoint the Disability Discrimination Commissioner. We have seen it with the funding cuts to the commission. And, of course, we have seen it in the children in detention inquiry.

We also saw it in relation to many other things, including a statement from the outgoing Disability Discrimination Commissioner where he stood up in the Press Club in July 2014. The then commissioner, Graeme Innes, criticised the government's attack on the Human Rights Commission and on the commission's focus on antidiscrimination legislation to the detriment of promoting fundamental freedoms. He stated that the Human Rights Commission only administers antidiscrimination legislation and that a charter of rights should be passed if the government wants those rights to be examined, and he went on to criticise the government's decision to appoint Tim Wilson when it was intending to cut the Human Right's Commission budget, forcing them to accommodate that salary within their existing allocations.

Of course, the president not only criticised the government on immigration but went on to the legacy case load bill. There is a whole lot. Day after day, week after week, they gave a ruling on indefinite detention of mentally ill Aboriginal men in the Northern Territory. Week after week, the commission were doing their work: upholding human rights, putting a light onto where the government was failing to uphold the law.

As a result, the fact is that the government decided to do in the Human Rights Commission. Many people will have missed it because they were on holidays, but in January this year there was a report in Rupert Murdoch's pamphlet The Australian that stated that coalition MPs were attempting to launch an inquiry into the timing of the Human Rights Commission inquiry into children in detention and investigate the president for political bias, while criticising her on many other issues. So clearly there had been a decision by the government to launch a pre-emptive attack on the commission. Backbenchers had already started to talk to the Attorney-General's office about launching such an attack. Why? Because he had the report on the detention of children in November. This was a concerted campaign across the summer that we saw ratcheted up in January.

We have just heard Senator Abetz on the Basisbasik affair, Once again he completely misrepresented the Human Rights Commission. This misrepresentation had previously provoked a whole lot of lawyers-25 leading legal experts-to come out and state that the government's attack on the Human Rights Commission over that decision was disgraceful. All that the commission found was that the government had not established that continued detention after completion of a sentence was necessary-and Professor Triggs herself made it clear that the government had the right to reject her findings if they were wrong in law.

I want to emphasise that point. Professor Triggs gave the report on Basikbasik to the Attorney-General in June last year. He had six months to reject her findings on the basis that they were wrong in law. He did not. He said nothing, because in law she is correct. Instead of finding any legal basis for rejecting the Commission's finding, he waited until the period in which he could actually do something about it had run out-and then in January he launched these public attacks and smear campaigns through The Australian. That is disgraceful. If, Senator Abetz, the Attorney-General had a reason in law to reject the Commission's, he had had six months to do something about it, but he did not-because Professor Triggs was right in law. She was doing her job as chair of the Human Rights Commission and she is a highly regarded legal expert.

That brings me back to the point I am making about the rule of law in Australia-and the Attorney-General's failure to uphold that rule of law. It is a real concern. In a very interesting assessment of our current Prime Minister's behaviour, 'Tony Abbott running from the law', David Marr said:

But when the law stands between him and a quick win, he shows contempt for its values, its customs and the part they play in national life.
And the Attorney-General goes along with it. That is absolutely the case. They made a decision that the Human Rights Commission, by upholding the law, was undermining the government-because it was exposing an extremist government acting the wrong way in the face of the law. Instead of reflecting on the Human Rights Commission's findings and upholding the law, they made a decision to go after the Human Rights Commission and, in particular, its president.

They know as well as we do that the only bases on which they can remove the President of the Human Rights Commission are misbehaviour, bankruptcy, failure to disclose interests, or mental or physical incapacity-and they had none of those. There was no way they could get rid of the person they wanted to get rid of. What is her crime? Her crime is that she stood up for the law, the rights of the disadvantaged and the rights of children in detention. People around Australia get it. They get that children were being badly treated in detention under both Labor and Liberal governments-and they now see a disgraceful effort by the Prime Minister and the Attorney-General to do in Professor Triggs. These matters have now been referred to the Federal Police, as indeed they should have been-because an offer of an alternative position, on the basis of a promise or an undertaking to resign, can only be seen as an inducement. That is why it is now with the Federal Police to investigate.

But we as a parliament have to consider what is to be done. It goes to this fundamental issue: do we want, as a country, to allow the government to get away with undermining the rule of law? If you have not got the rule of law, then you sink into a quagmire, and that is my concern here-that the Attorney-General has facilitated and is facilitating the Prime Minister in abusing the rule of law because it suits them to do so, because Professor Triggs and the Human Rights Commission, without fear or favour, will do as they are required to do under the law, and that is look at issues brought before them, look at the framework and the legal process in place and act accordingly. That is why we should be supporting Professor Triggs and we should be doing everything we can in this parliament to seek the upholding of the law.

I want to just come back to the fact-I think it should be noted-that Senator Abetz did not defend the Attorney-General until the last four seconds of his speech. The government know, as this parliament knows, as the Australian community knows, that this is an unwarranted witch-hunt against Professor Triggs and the Human Rights Commission. There is no other way that you can see it-the bullying, the abuse. It was outrageous in January: day after day, week after week, in The Australian out came these reports-to the point where I asked for an assessment of just how many reports had come out in The Australian over January, leading up to the release of the report.

There was a strategic decision made by the government to go after Professor Triggs, starting with the attack on 8 January by the Prime Minister. That is why I link this to the Prime Minister. It is not just Senator Brandis; it goes right back to the Prime Minister's office. On 8 January, Prime Minister Abbott questioned the president's judgement on John Basikbasik. He went on and on subsequent to that, and that led into the articles saying that coalition MPs are attempting to launch an inquiry into the children in detention report and investigate Professor Triggs for political bias-and so it went on. So the Prime Minister started it on 8 January, knowing this report had to come out, deciding then that they would bring it out at the last possible moment they could in terms of the time frame and work up, day after day, their attacks.

One of the most cowardly and disgraceful things, from my point of view, is the fact that the Attorney-General, if he had a problem with the Basikbasik judgement of the commission, had his statutory six months to do something about it, and he did not. Why didn't he? Why didn't the Prime Minister require him to do something about it if they thought there was something wrong with the judgement in law? And there is not. That is what is so pathetic. That is the contempt that they show for the law. They would prefer to go through the shock jocks and the Murdoch pamphlet to get out there and build a case, rather than go back to the fundamentals of the law.

Legal academics came out and said:

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.

That was the judgement of leading academics in relation to the investigation into the Basikbasik case. I want to also correct the record: at no stage did Professor Triggs say that John Basikbasik should just be released into the community at large. That is important. It is a complete lie and misrepresentation that the government goes on with.

I know that there is great disquiet in the Liberal Party about what the Prime Minister has done and what the Attorney-General has done. That is why people are concerned. I know that there are people who joined the Liberal Party because they thought they were conservatives and they actually believed in the rule of law and upholding the rule of law. They thought they actually believed in human rights. Instead of that, those people have landed themselves in a party of extremists who are prepared to ditch the law when the law stands between the government and a quick political win or anything else, and they will show absolute contempt for the law.

That is why I and the Greens are supporting the censure motion against the Attorney-General. We do not believe he is fit to hold the office of Attorney-General. Not only that; his behaviour and that of his colleagues has demeaned the Senate and the parliament. The inquisition that took place last week was a disgrace-the failure of the chair to properly chair the session, to protect the witnesses. But that is a secondary matter to the fact that we have a government prepared to undermine the rule of law. It is time we had an Attorney-General who will do as an Attorney-General is supposed to do, and that is uphold public confidence in the law and legal institutions and stand by those legal institutions. It is a view that has been expressed, I know, within the Liberal Party. It was reported that Craig Laundy MP, for example, said, 'Why didn't you focus on what happened to the children in detention rather than go after the commissioner, whose job it is to interrupt the framework of the law?' The Attorney-General has shown he is not fit to hold the position he currently holds in the government, and the lack of confidence in him extends well into the community.


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