We write to express our concern over the recent criticism of one of Australia’s most respected independent public office holders, Australian Human Rights Commission President Gillian Triggs. Below we comment on the relentless attacks, including from the Prime Minister, 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.
1. Professor Don Anton, Professor of International Law, Griffith Law School, Griffith University.
2. Associate Professor Afshin Akhtarkhavari, Griffith Law School, Griffith University.
3. Kevin Boreham, Lecturer, ANU College of Law, Australian National University.
4. Professor Andrew Byrnes, Australian Human Rights Centre, Faculty of Law, UNSW.
5. Professor Hilary Charlesworth, Centre for International Governance and Justice, College of Asia and the Pacific, Australian National University.
6. Professor Holly Cullen, Faculty of Law, the University of Western Australia.
7. Dr Alice de Jonge, Senior Lecturer, Department of Business Law & Taxation, Monash University.
8. Professor Andrea Durbach, Director, Australian Human Rights Centre, Faculty of Law, UNSW.
9. Emeritus Professor Judith Gardam, Law School, University of Adelaide.
10. Professor Fleur Johns, Faculty of Law, UNSW.
11. Professor Sarah Joseph, Castan Centre for Human Rights Law, Monash University.
12. Professor David Kinley, Chair in Human Rights Law, Sydney Law School, University of Sydney.
13. Professor Penelope Mathew, Griffith Law School, Griffith University.
14. Professor Jane McAdam, Scientia Professor and Director, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW Law.
15. Associate Professor Adam McBeth, Faculty of Law, Monash University.
16. Associate Professor Justine Nolan, Australian Human Rights Centre, UNSW Law.
17. Professor Anne Orford, Michael D Kirby Professor of International Law, Law School, University of Melbourne.
18. Professor Dianne Otto, Francince V. McNiff Chair in Human Rights Law, Director, Institute for International Law and the Humanities, Melbourne Law School.
19. Professor Joellen Riley, Faculty of Law, University of Sydney.
20. Professor Ben Saul, Professor of International Law, Faculty of Law, University of Sydney.
21. Professor Tim Stephens, Professor of International Law, Faculty of Law, University of Sydney.
22. Professor John Tobin, Melbourne Law School, University of Melbourne.
23. Associate Professor Margaret Young, Melbourne Law School, University of Melbourne.
24. Associate Professor Matthew Zagor, ANU College of Law, Australian National University.
25. Associate Professor Paula Gerber, Castan Centre for Human Rights, Monash University.
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