Attack on Triggs symptom of deeper malaise
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Attack on Triggs symptom of deeper malaise

With its barrage against the Australian Human Rights Commission president, the Coalition is really assaulting the rule of law.

The campaign against the Australian Human Rights Commission president, Gillian Triggs, appears to have backfired.

It began in 2014 when Professor Triggs initiated an inquiry into the impact of immigration detention on children and it culminated at Tuesday's senate estimates hearing in an extraordinary eight hours of bullying and sexist denigration.

The campaign against Gillian Triggs, President of the Human Rights Commission, appears to have backfired.

The campaign against Gillian Triggs, President of the Human Rights Commission, appears to have backfired.Credit:Andrew Meares

On Thursday, though, The Canberra Times reported that Coalition colleagues have questioned Mr Abbott's judgment over the attacks on Professor Triggs. Many are rallying behind leadership pretender, Malcolm Turnbull, who distanced himself from the attacks, describing Professor Triggs as a very distinguished legal academic, as indeed she is.

Turnbull is correct to recognise that public perceptions have shifted and the Government's attacks on Professor Triggs and the Human Rights Commission are now distinctly on the nose.

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While Attorney-General George Brandis and Prime Minister Tony Abbott have been fighting desperately to divert attention from the commission's Forgotten Children report by claiming "that the people of Australia have lost confidence in the president of the Human Rights Commission", Turnbull re-focused attention squarely on the report. "The issue," he said, "is not Gillian Triggs, or personalities, or arguments about the Human Rights Commission, the issue is children. All of us as parents in particular know how anguished it must be for children to be in these circumstances."

That's the rub. Mr Turnbull recognises that many Australians, although quite happy to ignore the serious mental and physical harm inflicted on people held in immigration detention, nevertheless feel quite uncomfortable when details of this harm are brought to their attention, and particularly so when children are involved.

While there is nothing in the Forgotten Children report that we didn't already know about the impacts of immigration detention, it is an unpleasant experience to be reacquainted with the specifics that lurk behind its references to "high levels of mental health disorders" and "numerous reported incidents of assaults, sexual assaults and self-harm involving children" in detention.

Turnbull demonstrated his considerable political acumen by drawing attention to the report, and then by turning its very troubling conclusions to the Coalition's advantage by claiming that the number of children in detention has fallen by 1400 to "just 126" since the Coalition took office.

But Turnbull is fudging here; while 126 children continue to be held in mainland detention centres there are 116 children still on Nauru, where the commission concluded they are "suffering from extreme levels of physical, emotional, psychological and developmental distress". This means that as a matter of deliberate government policy we continue to subject 242 children to cruel and abusive treatment.

Turnbull recognises how discomforting this is, suggesting that even "one child in detention is one child too many". What he does not do is back away from a mandatory detention policy that has bipartisan support. Instead, he trumpets the success of the Coalition's hardline approach, claiming that the best way to keep children out of detention is by "stopping the boats".

Turnbull's manoeuvring is certainly deft, but it is also dangerous. What he is expecting us to ignore is that "stopping the boats" involves administering a detention and interception regime that attempts to inflict cruelty at arm's length. It is certainly true as a matter of basic psychology that what is out of sight is much easier to put out of mind (hence "the forgotten children"), but it is not true that our legal and democratic system can be preserved untainted from the intentional infliction of cruelty in far-flung places.

This is the true significance of the attacks on Gillian Triggs and the Human Rights Commission. The attacks reflect a deep distrust of democratic process and its oversight and accountability mechanisms. Bodies such as the commission are designed to restrain and hold to account the power of executive government, ensuring government by rule of law – or by "right" rather than "might".

The fundamental aim and raison d'etre of Australia's off-shore detention policy, and our interception and turning back of asylum seeker boats, is to escape the restraint of the rule of law. Successive Labor as well as Liberal governments claim that Australia is not responsible for detention centres that are outside our migration zone or within the jurisdiction of other countries.

But these detention centres are established by Australian legislation and policies, and by agreements we have entered into with other countries. This means that our law attempts to create a division between people who are worthy of its protection and people who are not.

In doing so, the impartiality and integrity of the law is corrupted. This corruption can be seen in the ever increasing expansion of executive power, including the arbitrary power to decide whether or not to release children from detention.

Turnbull has challenged the overt hostility of the Abbott/Brandis camp towards the Human Rights Commission. But his support for off-shore detention and boat turn-backs betrays the principles that the commission was created to uphold.

Dr Emma Larking is a postdoctoral researcher at The Australian National University's Regulatory Institutions Network, and author of Refugees and the Myth of Human Rights (Ashgate, 2014).

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