Ideas and Society Human Rights Charter Debate

(Professor John Dewar)
Good evening, ladies and gentlemen. My name is Professor John Dewar and I’m the
Vice-Chancellor of La Trobe University, and it’s wonderful to see so many of you here
tonight. I’d like to acknowledge the Wurundjeri people
as the traditional custodians of the land on which we meet this evening, and pay my
respects to their Elders, past and present. So welcome to tonight’s Ideas and Society
event entitled Does Australia Need a Charter of Human Rights? Robert Manne, La Trobe University’s Emeritus
Professor of Politics and Vice-Chancellor’s Fellow, has put together another fantastic
series of debates and discussions for this year, the tenth year, indeed, that Rob has
been presenting this Ideas and Society program. And just a quick recap on some of this year’s
events so far. We had Hugh White and Clive Hamilton, who
debated how Australia should respond to China’s rise; Tim Soutphommasane, Chelsea Bond, Tom
Switzer and Tasneem Chopra discussed whether Australia still has a racism problem; Clementine
Ford, Teela Reid and Petra Bueskens discussed what types of feminism we need today; and,
most recently, Julian Burnside and Frank Brennan talked about refugees who come to Australia
by boat, and they were joined on a Skype link from Manus Island by Kurdish writer, Behrouz
Boochani. I’m sure you’ll agree that these are all topics
that are some of the most important issues facing our nation and the global community
and what stands out throughout all of those events is the extraordinary calibre of speaker
that Rob has assembled, and tonight’s debate is absolutely no exception, on both the importance
of the topic and the calibre of speakers. So once again, we will hear from two leading
Australians, and, importantly, to discuss a topic on which they have genuinely different
points of view, as I think you will discover. The question being considered – whether Australia
needs a human rights charter – is not a new one but, in many ways, it’s been brought sharply
into focus by some recent events. If you think about issues to do with press
freedom, digital surveillance of citizens, the detention of asylum seekers or the Uluru
Statement from the Heart, or the perennial arguments we hear about freedom of speech,
it’s clear that this issue is not going to go away. So how should we deal with these matters? Is a federally legislated charter of human
rights the answer and, if so, what form should it take? Now, tonight’s discussants hold very different
views on these questions, and it’s my great pleasure to introduce them both now. Emeritus Professor Gillian Triggs was President
of the Australian Human Rights Commission from 2012 to 2017. She is currently Chair of Justice Connect,
President of the Asian Development Bank Tribunal and a Vice-Chancellor’s Fellow at the University
of Melbourne. She was recently appointed Chair of the United
Nations Independent Expert Panel on abuse of office and harassment in UNAIDS. Professor Triggs was Dean of the Faculty of
Law and Challis Professor of International Law at the University of Sydney from 2007
to 2012, and Director of the British Institute of International Comparative Law from 2005
to 2007. She is the author of many books and papers
on international law and her most recent book was Speaking Up, published by Melbourne University
Press in 2018. Professor Greg Craven has been Vice-Chancellor
and President of the Australian Catholic University since 2008. He was previously Deputy Vice-Chancellor at
Curtin University and Provost and Dean of Law at the University of Notre Dame, Australia. This followed an academic and a legal career,
where he held leadership, research and teaching positions at the University of Melbourne,
where I gather he was taught by Gillian, at Monash University, Curtin University and in
the Victorian Parliament. Professor Craven has served on numerous public
bodies and holds various fellowships, committees and board memberships. Amongst other accolades, he’s been made an
Officer of the Order of Australia for contributions to higher education, law, policy and the church,
and was appointed by Pope Francis as a consulter to the Holy See’s Congregation for Catholic
Education. Tonight’s moderator is Dr Madelaine Chiam,
who is a lecturer in the La Trobe Law School. Her research examines the relationships between
the global and the local and the language and histories of international law. She is particularly interested in the role
of international law in Australian life and her monograph International Law in Public
Debate will be published by Cambridge University Press next year. So the format for tonight’s debate is an address
to be delivered first by Professor Triggs, followed by an address by Professor Craven,
and then a discussion facilitated by Madelaine, and we’ll then have time for audience Q and
A. So it’s now my great pleasure to hand over to Dr Chiam to get proceedings under way. Thank you. (Madelaine Chiam)
Thank you, John, and good evening everybody. I also want to start by acknowledging the
Wurundjeri, that our event tonight is being held on the land of the Wurundjeri people
whose sovereignty was never ceded, and I pay my respects to their Elders, past, present
and emerging. An acknowledgement of country like the one
I just gave serves as a reminder that modern Australia’s refusal to address the sovereignty
of the first peoples of this land is one of our great failures as a nation and, in the
context of our event tonight, it is striking to me that the national indigenous consensus
position on sovereignty which is embodied in the Uluru Statement of the Heart that John
mentioned, makes itself heard not through the language of human rights but in the language
of voice, treaty and truth, and so one of the questions this raises for us tonight is
about the power and the limits of human rights, and that is what our two very esteemed speakers
are going to give us their views on this evening. Before I turn over to Gillian to begin our
evening, I should mention also that not only did Gillian teach Greg but Greg taught me,
so apparently, according to Greg, that makes Gillian my academic grandmother, and I’ll
just say hello to my students, who I know some of my current students are in the audience,
so this is your academic grandfather and your academic great-grandmother. On that note, Gillian. (Gillian Triggs)
Thank you very much. I feel terribly old, as you can imagine. Well, ladies and gentlemen, I really do congratulate
La Trobe University for putting on this series, and Robert Manne in particular, because the
timing for this debate has been impeccable. If you’ve ever doubted the need for a charter
of rights in Australia, the Banerji decision of the High Court handed down a few days ago
demonstrates why legislative protection for our common law freedoms has become a matter
of national urgency. We have it from the most authoritative voice. The High Court has confirmed unanimously that
Australians do not have a personal right to freedom of speech. Most Australians will be surprised to learn
this, just as they are shocked to know that Australia is the only western democracy in
the world that does not have some form of legislated or constitutionally entrenched
charter of rights. Some commonwealth, state and territory laws
protect human rights, but there’s no single document articulating these rights in a coherent
and accessible way. The High Court, of course, is technically
right. The Constitution does not explicitly protect
the right to freedom of speech. Rather, the High Court has implied a limited
right of political communication that restricts the legislative powers of parliament. Political communication as a whole is protected
but not that of you, the individual. What better example could I have to demonstrate
why it is that Australia needs a federal legislated charter of rights to protect the rights of
each of us? The High Court has held that the government’s
right to sack Miss Banerji for tweeting her views, 9,000 times it must be admitted, about
the indefinite detention of refugees offshore, among other concerns. The Court accepted that, as a public servant,
she was bound not to diminish the integrity and reputation of the commonwealth public
service and that the discretionary sanctions should be justified as reasonable to protect
our representative democracy. But it’s notable that, when dismissing Banerji
and accepting the validity of that dismissal, the High Court acknowledged that, had the
case arisen in Canada, the Canadian Charter of Rights and Freedoms might have provided
some protection. The Supreme Court of Canada has said that
a blanket ban on critical comments that fails to consider the type of work done by their
public servant or their relative role and position in the government hierarchy was not
justified in a free and democratic society. “Any restriction,” the Court said, “on freedom
of expression of a public servant must not go beyond what is necessary to achieve the
objective of an impartial and loyal civil service.” The Supreme Court in Canada, then, had adopted
a test of minimum impairment. In other words, it will always look, because
of the Charter, at minimally impairing the right of the individual under the laws passed
by the Canadian parliament. A similar charter protection in Australian
law might not have saved Miss Banerji on the facts of her case, but the impact of the High
Court’s decision is likely to have a chilling, if not freezing effect on the liberty of Australian
public servants to speak up fearlessly. This is especially worrying as public officials
are often in the best position to know when governments have abused their powers or trampled
on fundamental freedoms. The High Court decision is highly technical
in Banerji and a narrow interpretation of the law. It completely fails to look at the common
law right to freedom of expression, a right that’s not something that was conjured up
in those heady years after the Second World War and the Universal Charter of Human Rights,
but rather was as ancient as the English Bill of Rights in 1689 and, of course, is reflected
in Australia’s treaty obligations. The International Covenant on Civil and Political
Rights protects the right to freedom of expression, with exceptions only to protect national security
and public order. If we had a charter of rights, these freedoms
and obligations could be addressed and available to our Courts to employ in litigation as a
sword to protect individual freedoms. But sadly, in my view, both parliament and
our Courts have failed abjectly to protect human rights in upholding numerous rights,
the rights of those held in, for practical purposes, indefinite detention, stateless
people, asylum seekers, tragically those with cognitive disabilities, indigenous juveniles
held in adult facilities, Aboriginal deaths in custody, domestic violence, racism in the
delivery of our health services, and gender inequality are witness to what I believe has
become a dysfunctional parliamentary system and disempowered Courts. In addition to well-documented social problems,
I think we need new laws that set out our freedoms in response to emerging issues of
our digital age: elder abuse, workplace discrimination against disabled people, high levels of sexual
assault and harassment even in our universities; and, of course, domestic violence. Well, in speaking up for a charter of rights,
I’d like to explain more about why we need a charter and what sort of difference it would
make if we had one, but then to debunk some of the misleading counterarguments that my
very brilliant and talented debater will doubtless be raising, but I thought I’d get in first
because I have the privilege of coming up first. Well, timing, of course, is everything, in
life and in politics. The Banerji decision has come in the middle
of a national debate about the adequacy of the constitutional freedom of religious expression
in the Israel Folau case of threats to press freedoms posed by recent federal police raids
on News Corp journalists and the ABC. It’s ironic, I think – more than ironic – that
the government should also be prosecuting Bernard Collaery, the former Attorney-General
for the ACT, for espionage. His alleged offence is to provide legal advice
to witness K, who has recently pleaded guilty to releasing information about Australia’s
acknowledged spying activities in East Timor. Less sensational but a serious restriction
on our common law freedoms are the laws introduced largely since 2001 to counter the threat of
terrorism. That extraordinary year of the alleged throwing
children overboard allegation, found subsequently by the senate to be without a scintilla of
evidence; the Tampa affair, when the Norwegian ship’s captain brought those asylum seekers
– rescued them at high seas and brought them into the Melbourne port, into Australian territorial
waters; and, of course, later that year, just a few weeks later, the tragic loss of life
in the terrorist attack on the Pentagon and the Twin Towers. But these laws were introduced to counter
this conflation that the government embarked upon, conflating asylum seekers with Islam,
with terrorism, and that has led to what has been coined hyper-legislation as the government
has introduced more extensive and intrusive laws than are adopted by most other nations. The United Kingdom’s Human Rights Act, for
example, provided guidance to courts when rejecting similar laws in the name of national
security. In the Belmarsh case, for example, the House
of Lords condemned detention without trial of suspected terrorists who’d not had the
benefit of a criminal trial. The court found that the detention was not
rationally related to the perceived threat to national security and was illegal, and
Justice Hoffman, in a memorable judgment, took the view that the real threat to the
life of the nation in the sense of a people living in accordance with its traditional
laws and values comes not from terrorism but from laws such as these. That is the true measure of what terrorism
may achieve. It’s for parliament to decide whether to give
the terrorists such a victory. Well, over these years – 18 years since 2001
approximately – piece by piece, legislation has been passed by compliant federal parliaments,
facilitated by oppositions, that has created an expansion of executive powers and non-compellable
and non-reviewable discretions of a federal government that is unprecedented outside wartime. Examples include the power to detain unauthorised
asylum seekers without charge or trial, to hold terror suspects for extended periods
for questioning, to strip dual nationals of citizenship, to use meta data retention laws
to diminish privacy and freedom of speech, and to pass mandatory sentencing laws that
diminish the independence of the courts. There are many, many examples that one could
go into, including, of course, the report of the Australian Law Reform Commission that
found that over 121 laws infringe our democratic freedoms. Reversal of the burden of proof, paperless
arrest laws in the Northern Territory, retrospective penal sanctions, the denial of the presumption
of innocence, restrictions on environmental protests and advocacy by not-for-profit charities,
and one could go on and on, but I know very well from my work at the Australian Human
Rights Commission and subsequently, going through the legal provisions and bit by bit
looking at the legislation to see the enormity of the intrusion on our fundamental rights,
people perhaps aren’t going to understand the point in the same way that they can understand
the factual problems and the examples. And sadly there are many, but one that I will
mention is that of Marlon Noble, and many, even in the legal profession, can hardly believe
that this is true, but this was an Aboriginal man who had a cognitive disability after contracting
meningitis as a child. In 2001, he was charged and accused falsely
of sexually assaulting two young girls; a very serious offence. The alleged victims and the mothers of these
alleged victims denied the event ever occurred, but the allegation was pursued and he was
found not fit to plead before a court. Under Western Australia’s Mentally Impaired
Defendants Act, he was held in a maximum security prison with other prisoners, having never
been charged or tried, in Geraldton for 10 years until finally the United Nations Committee
argued that the laws were contrary to international law and contrary to his rights, at least to
a trial. The Human Rights Commission took the matter
up and I’m pleased to say that he has not been released from all restrictions on his
life but he has been removed from maximum security. But sadly, that was the reality of his life. Had we a charter of rights, then litigation
lawyers would have been in front of the court arguing for fundamental rights not to be detained
without charge or trial. An Australian court could have stepped in
to ensure not necessarily his release if he was perceived in any way to be dangerous,
but to ensure regular judicial supervision and proper treatment for a person with the
cognitive disabilities that he’d gained. Well, many of you will be saying, “Well that’s
all very well, but what about the common law? What happened to the common law?” It’s ancient. It goes back to the 13th century at least,
building upon that symbolic document, the Magna Carta, which, I might add, specifically
prohibits the detention of people without charge or trial by their peers. Well, the difficulty is that the common law
can be overturned if the language of parliament is clear, and that is the extraordinary phenomenon:
that if parliament passes a law which is sometimes explicitly, sometimes by implication, in breach
of our fundamental rights, then our courts, for the most part, will not overturn that
legislative provision. In fact, it seems to me, that common law has
now become an insubstantial sector with very little capacity to constrain parliamentary
excesses, and, for that reason, I believe, we have a serious deficit in legal protection
for human rights in Australia, rights that I think have been in regression now for nearly
20 years. So let’s turn then to what is usually argued
against a charter: why would we not have a legislated charter of human rights? I’m not arguing for a constitutional bill
of rights, not because I don’t think that would be a good idea but because I think the
chance of getting one politically is almost zero. As you know, we are struggling as a nation
to come to terms with the idea of constitutional recognition of our indigenous peoples. I think that probably is the priority. We’re very unlikely to get a constitutionally
entrenched charter. But at least if we embarked on the first stage
of a legislated charter at the federal level, then I think we could build confidence – national
confidence in the way the system’s going to work. Of course, you’ll all be aware, particularly
obviously here we are in Victoria, Victoria’s had a charter for many, many years. The ACT has also had a charter of rights and
you might be aware that Queensland has just agreed to pass a charter. So it may be, somewhat interestingly in fact,
that the move towards developing trust in a charter may actually come from the states
and territories rather than from the federal government. But the real question is will a charter of
rights ensure that the government intrusions on the liberties that I very briefly outlined
are reasonable and proportionate to achieve a legitimate end. That is the test that the High Court will
use to test the validity of federal laws by reference to human rights. I should first admit that a charter is not
a panacea. Many nations have charters of human rights
and abuse human rights egregiously, but, under Australian law, a charter would give greater
power to the courts to ensure that common law freedoms are respected. A judge could, for example, apply charter
law to prohibit indefinite detention without trial of stateless persons, the mentally ill,
and asylum seekers; ensure that juveniles are not held in adult facilities, as a matter
of great interest here in Victoria; to require governments to provide adequate housing; to
ensure access to medical care and social justice; protect against disproportionate counterterrorism
and surveillance laws and respect the culture and rights of indigenous peoples. I mentioned the Victorian example. It’s been extremely interesting that here
in Victoria you’ll be aware that the charter was instrumental in ensuring that the juveniles
who’d been held at Parkville who were taken down to Barwon – the Barwon Prison – were
held in an adult facility, and that was challenged by the Human Rights Law Centre, among others,
here in Victoria, and their treatment, available on CCT footage, very, very important to the
practical reality – CCT footage showing the teenage boys being capsicum sprayed during
a disturbance. Justice John Dixon found that the use of the
spray was unlawful for various reasons and the concluded that the limitation on the human
rights imposed on these juveniles was not demonstrably justified in a substantive sense
as reasonable in a free and democratic society based on human dignity, equality and freedom. That was both a compassionate judgment but
one that was, for my purposes, informed by the Victorian Charter of Human Rights and
Responsibilities. He ordered the return of the juveniles to
the Parkville facility and required that they no longer be held in adult maximum security
prisons. Now, at the Human Rights Commission, we tried
to achieve the same result in Western Australia, where again juveniles were being held in adult
facilities, but this time we failed because Western Australia has no charter of rights,
and some of you might be surprised to know that the Convention on the Rights of a Child
is not part of Australian law and therefore it’s not possible to appeal directly to that
charter to protect the primary interests of the child. One well-worn argument is that, were we to
have a charter, it would open the floodgates, we would become litigious like the United
States, we would be suing everybody all the time, and it would be an absolute disaster. Well, the facts are very different. In Victoria, over the years since 2006 when
a charter was introduced, only 1.6% of cases have raised a human rights issue. In the United Kingdom under the Human Rights
Act there, only 2% have, and, in the ACT since 2004, only 8% have done so. So the floodgates argument is often used but
it’s rarely demonstrated on the facts and hasn’t been either internationally or in those
state and territory exercises in Australia. But the argument that’s made most frequently
to the Australian public is that to give judges the power to interpret freedoms under a federal
charter would lead to an activist judiciary trampling on the democratic role of elected
representatives. Well, to this I say, “Nonsense.” Simply, over many years, in New Zealand, Canada,
the United Kingdom, France, much of Europe, judges have continued to respect the rule
of law and supremacy in parliament. The sky has not fallen in and fundamental
freedoms have been protected against overreaching parliaments. In reality, judges are conservative, black
letter lawyers, and I think in Australia we are blessed with very high calibre judges. When they interpret the law, they do so against
a history of precedent, according to the words of Parliament, but with an eye to the values
of a contemporary society. It is ludicrous, I suggest, that suddenly
Australian judges will spring from their straitjacket of statute law and ride roughshod over the
will of Parliament. The fear of an activist judge is so illusory,
also, if we adopt the so-called dialogue model, similar to that under the Victorian charter. A court cannot declare the law to be invalid. It can only declare that the law is incompatible
with charter rights and send it back to parliament to amend the offending law. In this way, the supremacy of parliament is
maintained, and I think that’s a very important characteristic for Australia. Other people say that well, you know, political
issues are really for parliament and our politicians and judicial matters are for the courts, and
never the twain shall meet. Well, in reality, they are intertwined constantly. Political issues are resolved by passing legislation
that’s then interpreted and implied by the courts. Sometimes policy changes do occur in courts,
and the Mabo No. 2 case is a very good example of that; the Tasmanian Dams case on environmental
protection according to international standards, and Teoh’s case that recognised the legitimate
expectation that public officials will look at international treaties, in that case the
Convention on the Rights of a Child. Clearly, the court can overturn a judicial
view, but generally doesn’t succeed in doing so completely. But I think to consider exclusively the role
of courts and the judiciary in the context of a charter of rights is really to misunderstand
its power. The real significance lies in that it creates
a benchmark in society to influence decisions of government decision-makers and the standards
demanded by the community. A charter is in fact a governmental power
– a check on governmental power that I believe is vital to our contemporary democracy in
Australia. So in conclusion, I’d like to return to Miss
Banerji, because I think we need some sense of proportionality. Why sack a middle-level public servant for
threatening the integrity of the public service when ministers across political parties routinely
make senior political appointments that bypass selection processes. When parliaments pass laws to give government
ever-increasing discretions that violate our freedoms, allowing little or no legal recourse,
I suggest such government abuses at senior levels pose by far the greater threat to public
office and Australia’s democracy. In Australia, we do not view social justice
issues through the lens of human rights. Human rights law doesn’t inform our legal
or political discourse and it’s often ignored and expressly overridden by parliament. Australia’s relative isolation from the evolving
jurisprudence of comparable countries in Europe and North America and across the Tasman in
New Zealand has led to an exceptionalist approach to human rights. I suggest that a charter of rights for Australia
will better protect the rights of all of our citizens, minorities and non-citizens, and
ensure a culture of respect that underpins our democracy. Freedom of speech, the right to vote in equality. The tragic story of Marlon Noble, among others,
will and can be prevented if we have a charter of rights. It will also allow Australia to meet its international
obligations and to resume its leadership globally and regionally as a good international citizen. Above all, Australia could return to the rule
of law and to the principle of a legality upon which our multicultural democracy is
based. I believe that it’s time. Thank you. (Madelaine Chiam)
Thanks very much, Gillian. Greg. (Greg Craven)
Thank you. I’ll just set my watch. (Madelaine Chiam)
I think there’s someone to wave a red card at you, if you’re really anxious. (Greg Craven)
I shall restrain myself as best I can. Look, thank you all very much for coming. I have a very clear understanding of my role
in this debate. I know what type of debate it is. I’ve known Gillian for a long time and I know
what type of audience we’re likely to attract. So, generally speaking, in every debate, there’s
a good guy and a bad guy. Now, Gillian’s the good guy and I’m the bad
guy. My daughter actually suggested that I wear
my Darth Vader suit to the debate, but unfortunately it was away at the dry cleaner having blood
removed from it. So I assure you that I understand in general
terms I’m not necessarily here to persuade you; I am here to provoke you, and I will
do my very best. Now, that does mean – and I just say by way
of warning I will have to be a little stern with Gillian, but don’t worry; we like each
other, we’ve known each other for 44 years and I did once spend three hours trying to
persuade her daughter that it was an unethical choice to follow Collingwood. So let me start with Gillian’s charter position
and let me begin with the F word, and the F word in this context is fraud. Now, what do I mean by that? Gillian and the people on her side of the
debate do not want a charter of rights. They do not want a dialogue model. They do not want this lovely tea party sort
of vision where the courts advise parliament and it goes back and parliament has a bit
of a look but the legislative will will ultimately prevail. That’s not what they want. What they want is a full bill of rights with
the judiciary overruling parliament, like the US. That’s the best position. I know they want that because I’ve read it
in Gillian’s book. She ceded, “Even I, a supreme optimist, would
not think such a thing would get through a referendum,” but I’ll come back to the referendum. And, of course, we heard Gillian say it again
today. So basically, when we talk charter of rights,
what I hear is low-fat bill of rights on the way to the real thing with the real horror,
which is the direction that we really apparently would like to go, and so that’s the context
in which I’m talking about. This is not a debate about a charter of rights;
it’s a debate about a step on the way to the bill of rights, which is what we apparently
really want. So I’ve uttered the F word. Let me utter the F word within the F word,
which logically enough is also fraud. This debate is always presented as if the
good guys – Gillian; and you note she’s wearing blue, I’m wearing black; she’s obviously the
good person – is it’s a debate between pro-rights people and anti-rights people. I’m an anti-rights person. I hate human rights. I’m really opposed to them. I’m opposed to babies and ponies as well,
of course, and basically I can remember being at a conference the Human Rights Commission
ran – not under Gillian – where there were young kids running around talking about rights
deniers. This is when Frank Brennan was doing his choir. Apparently I was a rights denier. This is slightly wrong. No sane person doesn’t like human rights. Every sane person is in favour of the vindication
of human rights. What we’re actually arguing about is not whether
we have human rights but what system we use to vindicate them. Do we use an elected parliament, which is
my position, or do we use an heroic judiciary, which is Gillian’s position? And, of course, remember typically when you
have a rights dispute, it’s not the case that you’ve got some absolutely vicious horrible
evil person like me who wants to annihilate some person’s right; you’ve got two rights
– one held by one person, one held by the other person – and you are trying to work
out how the two come together, and the question, as I say, is how you do that and, critically,
who does it. Now, one of the things that is very, very
clear about bill of rights proponents like Gillian is they don’t like parliaments very
much, and I think you heard that come across pretty quickly. In fact, they don’t like politicians at all,
and the reason they don’t like politicians is because politicians are pretty practical
sort of people concerned with what this thing called the electorate wants, and one of the
things that also comes out, I think, from people like Gillian is frankly they don’t
like the electorate much either, because they’re sort of grubby and distasteful land brutish
and, in my case, short, to complete the quotation, and it really would be much better if we had
an aristocratic judiciary that could restrain their baser instincts, and, if that costs
democracy, what’s democracy between a common room of international and constitutional lawyers. So I think that explains the huge attraction
of the whole bill of rights debate, and John, of course, gave the game away; he said that
we’ve been talking about a bill of rights forever, and in fact we’ve been talking about
a bill of rights forever. Charter is the new camouflage that we talk
about when we talk about bill of rights. It explains the huge attraction to lawyers. I’m not going to ask you to put up your hand
if you’re a lawyer in the room because that would be too embarrassing and, if I got it
wrong, it would be even more embarrassing, but lawyers love the idea of these types of
bills of rights, because let’s face it – and I’m talking to my fellow lawyer here and my
fellow lawyer there who I taught and all you fellow lawyers and law students in there – we’re
really not very interesting people, are we? I mean, basically what we do is we do conveyances
and we incorporate companies and you go to a party and they say, “What do you do?” and
you say, “I’m a lawyer,” and they very quickly move off to the accountant over there, but,
under Gillian’s model, we become philosopher kings. We overrule parliament. We know what’s right. Why? Because we’re lawyers, and we have a charter
that we’ve written and we’re going to run the country, and you will be grateful for
it or youse can get stuffed. That’s why we all love it, and, I mean, you
know, I’ve had that temptation. I’d actually like to bring Gillian back from
the dark side tonight. I’ve been on that night. You know, I was the Director of Research of
a parliamentary committee considering whether Victoria should have a bill of rights. For six months, I wanted to simply because
I was going to get to write it. After a year’s research, I realised it was
a problem. So I’ll return to that; the attraction for
lawyers of these things. Now, I think one of the crucial parts of the
argument here – and it was very obvious in what Gillian said – is to prove this you’ve
really got to prove you’ve got a country that’s got massive human rights problems – the bigger
the better – and Gillian went through a whole lot of examples of things about freedom of
religion and the detention of Aboriginal people and all of those sorts of things, and I knew
that because I read Gillian’s book. I read her book. I mean that the way academics read a book. It means you look at the index, you see if
your name’s not there. My name wasn’t there – that means a pretty
poor book – and then you sort of look for the bits that are relevant. And I’ve got to tell you that, having read
Gillian’s book, I more or less decided that I’d better migrate to Hong Kong now because
Australia was just so dangerous. Having heard her tonight, I’ve decided I’m
actually going to go to Vladimir Putin’s Russia because this country – you could walk out
that room and, by God, the police will arrest you just because you look as silly as I do. It is an extraordinary exaggeration of the
position of human rights in Australia. Of course Australia has human rights problems. It has about the average human rights problems
of the average very strong liberal democracy and anybody who believes that it’s some sort
of Gulag for the deprivation of human rights doesn’t need a lawyer; they need a psychiatrist. I mean, I can run a test for you, if you like. Now, please feel free to tweet this but do
it in context. Scott Morrison is a wanker who should be shot. Now, we’ll wait to see when the Federal Police
come through the door. So if some of you could tweet, the rest of
you can do your timing, and it is actually quite funny when you read Gillian’s book. At one stage, she said well, there are some
good things. There is the rule of law and parliament has
passed lots of Acts about human rights commissions and ombudsmen and we do have free courts. It’s like that scene from the Life of Brian. “What have the Romans done for us?” and then
comes the list of the different things, and, of course, then there’s the ever-present attempt
to explain why it is that countries who have bill of rights have the occasional problem
that might be a bit difficult. Like the most famous bill of rights, the United
States Bill of Rights, where the federal government under that wonderful man, Donald Trump, has
just decided to reintroduce capital punishment. We are not a rights Gulag. We do not need the solution of a rights Gulag. We need the solution, as I say, of something
that has its problems but can be fixed, and my view is that can be done under parliament. Now, there’s a third fraud in this debate
which is slightly technical, which is this. One of the things that isn’t mentioned is
that the dialogue model that is being proposed by Gillian, among others, doesn’t actually
work constitutionally at federal level. Now, I will spare you the full horror of the
explanation of this but basically in Australia at federal level we have a judicial separation
of powers and, in a case called – and I can’t even pronounce the name. I think it’s something like [unclear] 00:41:06,
which is a case that you all love, because it actually upheld the Victorian charter – unfortunately,
a majority of the High Court, admittedly by obiter, said that this could not possibly
work in an Australian level, because effectively it would involve the court giving an advisory
opinion. So what we’ve really got here is we’ve got
a dodgy product based on a false premise that doesn’t even work. It sounds like buying a Volkswagen. And I think the difficulty we’ve got – and
this is why we’re in this ridiculous position where we’re arguing about a charter of rights,
which Gillian actually doesn’t want, which actually can’t be implemented constitutionally
in Australia, to deal with a number of problems that are grossly exaggerated, is that, if
you wanted to actually have a bill of rights, you’d have to go to a referendum, and we don’t
want that because we’d have to ask the people, and remember, we don’t like the people because
they’re grubby and they don’t give the right answer, and the last time rights questions
were put were in 1988 and they managed to get 30% of the vote. So there’s no way it’s ever going to get up
so really we lawyers should just do it for ourselves. Now, I can tell you how easy it is to wreck
this sort of debate. Remember when Frank Brennan tried to run the
argument for this sort of thing? I think it would be fair to say that that
was stopped from being put forward by the huge coalition of myself, Julian Leeser, a
Liberal MP, and Bob Carr, the former Premier of New South Wales. So I have experience in this. Now, what that leads to is what really we’re
talking about is a power diversion product. We’re trying to create these express rights
which allow the judges enormous latitude of interpretation so that they can legislate. That is why, contrary to what we’ve heard,
the United States Supreme Court is often called a super legislator. It can literally make law by interpreting
the bill of rights. Now, just test this in your wild imagination. I’m not asking whether you like national security. You probably like your own bit of national
security. You may not be fond of the concept. Imagine the High Court given the term equality
and the effect it would have on national security legislation. Not whether you like the effect but what effect
would it have. Huge. Imagine equality and immigration and refugees. Huge. That’s what it’s meant to have. That’s why people in favour of the bill of
rights want it. You don’t even need to imagine what happened
with the phrase “due process” in the American Constitution. Originally inserted as a guarantee of procedural
due process, then interpreted by the Supreme Court as a guarantee of substantive due process,
through the ’30s and ’40s used to knock down pro-Labor legislation guaranteeing conditions
for workers because you had conservative judges, and then used in the ’60s and from then on
to say, “Well, of course, if you have procedural due process, you must have substantive due
process, and from that must come a right of privacy and that means there’s a right to
abortion but not in the third trimester,” and, of course, you can all see that written
down there in the words “due process” can’t you? So that’s the way these things actually work. Now, the question, which Gillian posed and
I’m very happy to answer, is why should parliament actually decide these fundamental questions,
and I mean, remember most fundamental questions of human rights are actually fundamental questions
of policy. It’s very good to be able to frame them as
rights because you immediately get the moral high ground. I once remember saying that a human right
was merely an ambit claim with a very, very good public relations agent. So here goes. Why should parliament decide these fundamental
things. Well first of all, in principle, it’s democratically
elected, whether you like the product or not. It’s not perfect but we elect it on the basis
of universal suffrage. Whatever its deficiencies, ask yourself the
question, “Is it comparatively democratic for the judges – than the judges?” and while
you’re asking yourself that question, ask yourself this question: “Who did you vote
for in the last High Court election?” Now, I’ve heard Gillian’s treatise on executive
dominance of parliament – that’s always an issue – but the question I ask is this: Where
have you been in the last 10 years? We’ve had prime ministers falling like skittles,
governments hanging on by single seats, massively powerful independents and senates able to
force their will upon the Executive. If we were doing this debate 15 years ago,
we would have a different position, but we’re probably in a golden age of parliamentary
responsibility. Yes, the composition of parliament is not
wide enough, but by God, it’s better than the composition of the judiciary. And then there’s the question of capacity. The thing with parliaments like the [unclear]
00:46:09 is that they can take a broad perspective across Australia. They can handle multivariant policy disputes
rather than pretending that a policy dispute is a dispute between two parties. They can get wide views from wide sectors
in expertise. There’s this new marvy invention called the
public service that is capable of analysing policy positions. They’re supported by a policy apparatus and
they are used to balancing individual with collective rights, which is what is usually
happening in things like national security. I actually don’t want a country where individual
rights figured out by lawyers automatically trump collective rights, whether they’re rights
to national security or the enforcement of measures to alleviate climate chance, and
then, of course, there’s the slight embarrassment of accountability that we can actually dis-elect
our politicians, that we can put them in and take them out, whereas the great thing about
a judge is like barracking for Carlton: it may be unpleasant but you’re always going
to be there. Now, that’s the claim of parliament. Now, why not the judges? Well, let’s do the argument of principle again. They have no democratic authority at all. They’re not elected. We don’t vote for them. They are in fact appointed by the wicked,
evil, vicious, rotten, smelly Executive that Gillian is so frightened of. So if you’re an executive who wants a judiciary
that’s going to promote a particular view of human rights or anything else, you only
have to be determined enough to appoint the people you want on the court and then you
will be able to do it with the cover of law. And the truth, realistically, is that this
is not a case where you’re talking about neutral rights. It’s very interesting. Hands up the people in this audience who area
really, really, really nasty conservatives like me, who want a charter of rights? That’s right. There’s none of you. Because a charter of rights automatically
privileges a progressive agenda. So this is not a debate about a neutral position
on rights; it’s a debate about putting forward a particular brand of politics. As a matter of capacity, do you know what
judges are good at? They’re lawyers. They’re good at law. They’re not good at policy. They haven’t spent their times devising legislative
solutions. They are not people who have been trained
in the analysis of policy positions to come up with answers. They’re not used to deciding polycentric disputes
between public interest and private interest. Their experience of administration is roughly
confined to their secretary in their barristers’ chambers. They have had no experience of support apparatus
and they are completely unaccountable being appointed for life and being virtually impossible
to remove. These are the people to whom we are going
to confide everything from national security to a public holiday on the birthday of any
public figure you care to think. Now, if you want to go forward and look at
that, I can see all sorts of reasons why you might want this – if you were like my colleague,
if you were like most of us, if you were like me in one of my bad moments when I was looking
at politics – it is tremendous fun to be a philosopher king. It is wonderful to know that you will be able
to put your political agenda through under cover of it being a human rights position. It is terrific that you will be able to win
the battle for your progressive side of politics because you are the people who have managed
to get yourself into that position, and do you know what? There is actually a principled argument for
this, if people were prepared to be honest and put it. The problem is it’s not democracy. You’re not arguing for a democracy. You are arguing a very old and well-respected
argument. You want an aristocracy; an aristocracy of
wise, all-knowing, all-marvellous judges who will make the decisions. I always enjoy putting that to Michael Kirby,
who’s a good friend, because he gets very upset when I say that. Now, I’m not going to do all the furphies
that Gillian wants to do. I don’t think there’s going to be a flood
of litigation. I certainly think that it is extraordinary
some of the arguments that we’ve heard. Everybody has a bill of rights so we should
have one. So if everybody had capital punishment, we
should do that too. I liked the book – the argument in the book
that we were so ignorant, we were in this little horrible spot at the bottom of the
world that we hadn’t been exposed enough to the sophistication of European thought that
we would have a bill of rights. Courts interpret things anyway. Courts interpret things but boy, when you’ve
got something like equality, you’ve got something to interpret. All of those arguments – I mean, it’s quite
fascinating. In Canada, there’s actually an argument from
the left against a charter of rights and it has something in it, and that argument is
it privileges middle-class individual rights, like the rights of Gillian and myself, against
national collective rights that lots of people have. Have the Federal Police come yet? Right. So, look, can I just conclude on this. There’s often a bit of a book that really,
really does explain where someone’s coming from. So in Gillian’s book – and this is great we
bought it, so sales should go up. Usually my books sell three or four copies
so, if yours are anything like that, it’s going up magnificently – it gave an illustration,
I think, of the values and the position. It was sort of towards the end of the book
– and Gillian talked about the occasion where three federal ministers dared – dared to criticise
the Victorian judiciary on the issue of sentencing, and they were forced to apologise under threat
of contempt and penal sanctions by the Victorian Supreme Court. There was almost an erotic frisson of excitement
as Gillian contemplated this. So that’s apparently what it is. Sentencing; is it a public topic of free speech? Yes. Do we talk about it? Yes. Should we talk about it? Yes. And what will happen if you say something
that Gillian’s judges don’t like? You’ll go to jail, and Gillian will turn the
key, because the judges are just so good, that’s what happens. I prefer an alternative view. I remember in 1987, I gave the Deacon lecture
at Melbourne University. The topic of the lecture was The High Court
of Australia: A Study in the Abuse of Power. Now, I think it would be fair to say there
were quite a few High Court judges who didn’t like me. None of them tried to imprison me, and Michael
Kirby asked if he could come over to Western Australia and give a corrective lecture to
my students, which I agreed. That’s our present system. (Gillian Triggs)
You might have improved sales from that book. (Madelaine Chiam)
All right. Thank you to both of our speakers. Now I get a chance to ask a few questions
and then, after I have asked a few questions and Gillian and Greg have given us their answers,
then we get to open it up to all of you. So if you have a question bubbling away in
your minds, just as we’re speaking try and bring it to the forefront of your mind and
be ready to go in about 18 minutes. All right. So if I can boil down, perhaps, the differences
that we’ve heard between Gillian and Greg, they seem to boil down to differences in the
ideas of the role of judges and the role of parliament in our system. So if I could start with asking you both about
the role of judges and then we’ll talk about parliament. So this is for both of you. (Greg Craven)
I’m saying she could go first. (Madelaine Chiam)
One of the criticisms that Greg made was that judges would abuse the power of being able
to interpret something like equality, and I wonder, then, what you both think judges
actually do all the time in their role? So, for example, I’m thinking of a case just
recently called Masson where Victorian judges decided that someone could be someone else’s
family if they were a sperm donor. So that was a judge making a determination
of what family means under the Family Law Act. So my question is – and judges do this kind
of work all the time in constitutional decisions, as many of you would know if you follow constitutional
law nerd websites – judges have made the decision that dual citizens – because they’ve interpreted
the Constitution in a particular way, that means that dual citizens can’t stand for parliament
in our society. So I guess my question is judges are doing
this anyway, judges are practised at doing this; how is a bill of rights or a human rights
charter or whatever we call it different, or is it different? (Gillian Triggs)
Well, perhaps I could begin by saying that almost everything Greg said is wrong or misinformed,
except that I am a supporter of Collingwood. (Greg Craven)
But your daughter isn’t. (Gillian Triggs)
My daughter isn’t. Where to begin? Firstly, there is just one correction I must
make and that is that the High Court of Australia, extraordinarily, includes three women judges,
including a Chief Justice. We’ve never had that before and to describe
the High Court as not being in any way representative of the community is a little tough. It’s not representative of other groups in
the community, that is true, but at least there are significant improvements in the
number of women appointed to courts, and that’s a huge improvement over my lifetime, I can
promise you. And also, they must retire, under the Constitution,
at 70, so they’re not there forever and, as they’re often appointed when they’re getting
on a bit, they don’t actually have all that long to play this extraordinary role that
Greg has been describing. Now, to get back to the question. Very briefly. Where do you think our common law freedoms
came from? Freedom of speech, freedom of association,
ideas of privacy, the idea that we should not have detention without trial? These ideas came significantly from the judges
in the common law system. From about the 13th and 14th century, judges
started to give substantive decisions on the law. They have always included policy and contemporary
values in their understanding of the law. That is how we have the common law and it’s
the common law that develop these fundamental principles, along with, of course, the Bill
of Rights in England in 1689. Now, I think the point is very well made. Some of the greatest advances in Australian
legal jurisprudence have come because the courts have said it’s time for recognising
a different view, a contemporary view, and the carriage of the then High Court of Australia
in a different composition to overturn terra nullius, the idea that Australia was a totally
empty land with no organisational structure amongst our indigenous peoples – to overturn
that view was a view of a court that was taking the law to a step that the parliament was
quite incapable of taking, and there are many, many other examples of that. But that is not to say that our courts very
often embark on a sort of rampage through contemporary values and pick the ones they
like. That’s not what the courts do. It’s a careful and considered approach to
evolving jurisprudence. The common law had survived as one of the
– the greatest system of law in the world because of that ability of judges, in particular,
to interpret in ways that reflect contemporary views. Now, they’re not always right and they’re
going to be overturned by parliament. If the judge goes too far, parliament can
come right back in and declare that what they’ve just determined is inaccurate. If I could give one very quick example. In the Teoh case, the Mason court decided
that there must be some consideration to the primary interests of the child when considering
deportation issues and others, and that there was a legitimate expectation that officials
would look at the Convention on the Rights of a Child. Now, parliament absolutely objected to that
idea, and the respective governments – Liberal, National Party and the Labor Party – tried
to introduce a law that made it illegal to adopt the idea of a legitimate expectation
that we would look at a basic human right, and they failed every time, and that case,
while there’s been some stepping back from it, still remains good law in Australian jurisprudence. So parliament sometimes can be encouraged
to accept that we do have to respect human rights, and indeed, if I can finally add,
those common law principles that emerged from the 13th century have been picked up by great
Australians like HV Evatt, who then went to the United States to help draft, with a team,
the Universal Declaration of Human Rights in 1948. Australia has been a leader in giving treaty
form to these common law freedoms, and I think the courts should be allowed to continue that
process, but they’ve been excluded, and in my view, and the reason I have that example
about three politicians being required to apologise to the court for criticising the
court and its judicial determinations on sentencing – the reason why I mentioned that in the last
part of my book was that it illustrated that there has been a government – there has been
a trend towards demeaning our judges and demeaning our courts, whether it’s environmental decisions
or decisions about public speaking. So I think my key point is judges have always
contributed to the development of the law, and that is how we have the common law, and
what I’m asking for is a greater ability for judges to go back to those fundamental freedoms
and to interpret those provisions in a way that’s consistent with individual rights. (Madelaine Chiam)
Greg. (Greg Craven)
Okay. When I used to debate, one of the golden rules
was you always get your cheap shots in first because they’re probably the ones most likely
to appeal to the audience. One really obvious one is one swallow does
not a summer make; three women does not give a nationally diverse judiciary. That’s called mathematics. Just count the number of judges and divide
by that and you’ll get it. The second one is – I think, again, that’s
a wonderful example about the Supreme Court that Professor Triggs has said – there is
a tendency to demean the judges; say nasty things about them, and, if you do that, you
really should be guilty of a criminal offence. I mean, that is a remarkable proposition but
it’s a very honest proposition and I think it tells you where we’re coming from in here
in this rather lovely, rather quaint, sort of Edwardian gentile debate about a bill of
rights, and I’m glad to see we’ve pretty well moved on to a bill of rights rather than a
charter, but I think the thing that most gave that to me was the rhapsodic quote about the
1689 Bill of Rights. I remember the 1689 Bill of Rights. I wasn’t there but it was something that’s
rather interesting to me as a Catholic, because the 1689 Bill of Rights not only guaranteed
the right to bear arms, quote “to Protestant subjects according to their condition”, but
also barred Catholics and dissenters from voting for parliament, serving as officers
of the army, or – and I think this’ll upset Gillian most – being judges or lawyers. So this sort of quaint view, this quaint aristocratic
view is really remarkable. Now, on the substance, I’d say this: It’s
one of the most common or garden arguments in the world. Judges always interpret things. Judges have interpreted the Property Act and
the Criminal Law Act, so, if they interpret that, what’s wrong with interpreting a bill
of rights? And there are two answers to that. One is because the sort of terms that you
use in ordinary legislation are not the sort of terms that you use in a bill of rights. In a bill of rights, you use enormously broad
terms, like equality or freedom of speech or due process, not words like wombat or conveyance
or dog, and it means that they are basically vessels of meaning that can be filled up by
a judge in any direction they like. They are basically different. You can test it yourself. Think of the word “equality” in relation to
a national security debate and think of what a right-minded judge would be able to do with
that. Take the example I gave you about due process
in the American Constitution, where it went from there to somewhere south of Fitzroy. That’s not a hypothetical example of what
Gillian is assuring you good like-minded well-thinking judges will do. That is what judges actually did. That is why, in America, we have those dreadful
senate hearings where people are trashed and where politically-appointed Supreme Courts
are composed of judges selected precisely to do the bidding of whoever happens to be
in power at the time, because, even someone as dumb as Donald Trump knows if he can get
a judge and a bill of rights with that level of width, then Bob’s his uncle, and he can
interpret those laws and have them interpreted the way he wants. That’s the first problem. (Gillian Triggs)
Can I just – (Greg Craven)
No, no, no, no, no. I’ll give you two. Always good to have two. The second one is this. Seeing as we’re talking about a bill of rights
– and, as I say, the debate seems to have gone very much in that way and I’m quite happy
with that – the problem with a bill of rights, the sort of bill of rights Gillian wants but
will never get through a referendum, is that you can’t overrule a judicial decision. So if the judges make a common law decision,
parliaments can overrule it. If a judge makes a bill of rights under the
Constitution, it is constitutional law and it cannot be overruled, no matter what parliament
things. So it has no analogy at all with the common
law, which, of course, if the judges get it wrong, as judges sometimes do, they can be
overruled. (Gillian Triggs)
I just wanted to make the point that I’ve had a great deal to do with senate estimates
and enquiries, as some people in this audience might recall, and I’ve never seen as unacceptable
an abuse of government and executive powers and by parliament. We need a way of regulating and checking and
balancing. I’m not saying that we turn the world over
to lawyers. Of course, I’m not. What I am saying is that the balances and
the checks and balances that most democracies have, we have been slowly losing in the last
decade or so, and that is what is worrying me. I’m not arguing black and white and I’m certainly
arguing for a legislated federal charter of rights that I think could help build some
greater trust in parliament when it passes laws that explicitly – what do you do when
the majority in parliament, coupled with the opposition, agree to laws that are in breach
of our fundamental rights? What happens then? What do you do when you have a parliament
that is above the law or appears to be above the law because there’s no way of controlling
it? The courts can’t, the public service can’t,
and there’s nowhere else to go. In other words, if parliament pass the law,
that’s the end of the matter. Now, if parliament were acting according to
the usual what’s called legislative restraint, historically they would always presume that
laws did not impinge upon our common law freedoms. There was a presumption that Australian laws
and that parliament always intended to abide by the principles of international law. Those principles have simply disappeared,
and parliament now has a carte blanche to do pretty much exactly as it wants, including
passing laws which, in my view and in the views of many others including judges and
other parliamentarians, are egregiously in breach of the fundamental principles of law
that this country was built on, and that is what worries me. (Gillian Triggs)
Can I respond to that? (Madelaine Chiam)
I can see that I am going to be completely superfluous. (Greg Craven)
No, no, no, no, no, you aren’t. In the first place, parliament is not above
the law; it makes the law. It makes the law because it has the democratic
title to make the law, and that is the system that we established at federation. It was the system before federation, and it
has been the system going back into British tradition for a very long time. So the idea that – this new idea that parliament
is suddenly trampling on rights and asserting a position that it doesn’t have is completely
wrong. That’s not trampling; it’s called democracy. The second thing I’d say is I hope to God
that parliament frequently overrules the common law because the common law, as well as all
these wonderful things that Gillian has said, has in other parts been one of the most oppressive
and unpleasant systems of law until it was reformed by parliament. Now, some of you, it’s just possible, may
be Labor voters, and some of you may, in the depths of your bowels, believe in trade unions. Are you aware that trade unions as combinations
in restraint of trade were illegal at common law, and that wicked parliament stopped that? Were you aware that, in all sorts of punishments
– some of the more interesting ones like pressing to death – they were valid at common law,
and it was parliaments who intervened to stop it? Now, no one’s going to say that parliaments
are perfect, and I have to say I served for two years as director of a parliamentary committee
in Victoria, so I have a reasonable idea of how they work. Among other things, it did scrutiny of regulations,
and it did a pretty good job, but honestly, this picture we’re painting of an utterly
supine parliament. As I say, a few years ago, I would have had
more sympathy for this argument because it would have had a tenuous grip on reality. Now, during this last 10 years, I’ve been
a vice-chancellor of a university – which most universities are completely dependant
upon the government for money. So basically we’ve been relying on legislation
going through parliament unamended in the proper way that I’ve drafted it for whatever
minister of education happens to be in power at the time, and we have had to deal with
senates where they didn’t have a majority, house of representatives where they didn’t
have a majority, parliaments that were completely unstable with difficult people who had their
own minds about what they were going to do, and the fact that a parliamentary committee
doesn’t agree with me or doesn’t agree with Gillian or has members which disagree with
each other is not necessarily a bad thing. So as I say, it’s funny. This is the weakest this argument could ever
have been put at any time I can think of back to the time of federation. (Gillian Triggs)
Well, could I suggest to you, when you suggest that Australia is this wonderful paradise
for human rights – (Greg Craven)
No, I didn’t say that. I actually said it has the average sort of
problems of a Liberal democracy that wasn’t doing that badly. (Gillian Triggs)
– you might go to Manus Island, you might go to Nauru, you might go to any one of Australia’s
mainland detention centres and Christmas Island and visit those people in these conditions. I have been to all of those detention centres. I’ve been to Christmas Island three times. I have seen children held in detention for
a year without education. I’ve seen people without medical care in desperate
need for that care, and the argument appears to be that parliament can make those laws
that allow these inhumane and cruel policies, and I say that is inconsistent with Australian
law and it is inconsistent with our international legal obligations which would barely – (Greg Craven)
Which bit of Australian law is inconsistent? (Gillian Triggs)
Well, one interesting one is Comcare, the Comcare legislation, and we also have – (Greg Craven)
So how is it inconsistent – how is it inconsistent with the legislation – (Gillian Triggs)
The rights of a child. We have much legislation in relation to the
care of children; the right of children to education. That is absolutely fundamental in Australia. (Greg Craven)
So we have later legislation passed by a democratic parliament which, to that extent, has amended
the legislation that you are talking about. Even assuming for the moment that the two
pieces of legislation are on the same field, which is the only way they can be inconsistent,
the fact is parliament has control over its own legislation. It’s impossible to say that one Act of parliament
has contravened another Act of parliament. It may have impliedly amended it, but the
point is this. Let me take the hard – (Gillian Triggs)
It has breached our international obligations and our common law principle. (Greg Craven)
I don’t care whether it’s breached our international obligations – (Gillian Triggs)
Well, I’m sorry, but you see you make my point. (Greg Craven)
– for the purpose of the argument of whether or not it has breached Australian law. International law is another question altogether. But let me take the hard part. I’m not a great enthusiast for Manus or a
great enthusiast for Christmas Island. I’m pretty sure you have a fair idea that
that’s the case. However, I will take the hard point. If the democratically elected Australian parliament
which goes to the polls every three years decides as a matter of legislative policy
that it’s going to have a particular law about migration, then I may disagree with it but
it is the law, and I am not going to go to another system where we say, “Well, we don’t
like that and therefore we’re going to abandon the concept of parliamentary democracy,” and
that’s the problem you’ve got. (Madelaine Chiam)
I’m going to assert what little authority I have remaining and I’m going to open things
up. They answered, essentially, my list of questions
in their conversation. So I’m going to open things up to you. So just a couple of things about asking a
question. One, ideally it would be a question and not
a comment, and I reserve the right to interrupt you to tell you to ask a question rather than
make a comment, but also, when you ask a question, if you wait for the microphone because this
is being recorded. It’s being recorded by SBS, by RN, by La Trobe. If you ask an efficient question, your question
might get on TV. And if you would say briefly who you are and
ask your question, that would be wonderful, and wait for a microphone. Yes, there’s one down the front here. (Male)
Hello. Thanks for a great talk. My name’s Angus. I’m an engineering student at RMIT. My question is for Professor Triggs. You’ve been quoted as saying, “We are increasingly
out of step with comparable legal systems in Britain, Europe, et cetera.” This comparison seems to me to be an oversimplification
because the British tradition of common law and the lack of a British constitution stands
in stark contrast to the abstract and idealistic approach to the constitutional rights that
is taken on the continent. This difference is significant enough to be
cited as a keen motivator for the British exit of the European Union. Now, my question is: is the European Court
of Human Rights not a clear example of the threat High Courts pose to common law and
the supremacy of parliament? (Gillian Triggs)
Well, thank you for your question and, of course, it’s a very pertinent one in the context
of the Brexit that seems to be very likely with no deal, and you’re right to say, although
it’s somewhat confusing, it’s somewhat – you’re right to say that the concerns about the impact
of the European Court of Human Rights have been one of the elements that led to the Brexit
vote. In fact, they’re different things. Leaving Brexit is not going to mean leaving
the European Court of Human Rights, but we’ll put that to one side because it’s a legal
technicality, if you like, but it’s fuelled the sense in Britain that to have a European
court explain what equality means, what equality before the law is, what abortion rights might
be, what the rights of prisoners are to a fair trial and to access to information and
so on, and the right to vote, for example; all of these matters have been considered
by the European Court of Human Rights and they’ve done so on the basis of a convention
that Britain has signed. But because of the way the Council of Europe
works, the decisions of the European court are directives to the British system and they
must abide by those basic directives. Now, on almost all of them, Britain’s pretty
well there anyway. There’s very little difference. But there is an ideological or political concern
about a foreign court, if you like, a court to which the government’s agreed but nonetheless
one that has an impact on domestic law, and that offends people. The European vision of a supranational body
is something that’s very advanced jurisprudence, it’s very advanced thinking, and it’s not
something that everybody agrees with. However, that’s what they’ve agreed to. We have nothing comparable in our part of
the world. Every region of the world has some form of
regional court. The Inter-American Court of Justice, the Africans
in the Middle East. We have nothing in the Asia Pacific region
at all and we don’t have any sort of common view as to what the law is. Europe did have and so they were prepared
to embark on this experiment. I see the European court as providing very
advanced jurisprudence but it also mirrors, to a high degree, the jurisprudence of the
Inter-American Court of Human Rights and, of course, the individual courts of Canada,
New Zealand, Britain, and some other countries in Europe. So what I’m suggesting is that Australia is
falling behind in the development of that jurisprudence. An example would be marriage equality as an
example of equality before the law. Now, you may disagree with that view, you
may disagree with that jurisprudence, but my point technically is accurate. We are not keeping up with that developing
jurisprudence in the whole of Europe and North America. You may say, “Well I don’t like that jurisprudence. It’s not a problem.” I’d suggest that that jurisprudence is helpful
and that’s why I gave you a little bit of a quote from the Belmarsh case where holding
people on suspicion without charge or trial and holding them indefinitely is a breach
of fundamental human rights, whether they’re developed at the common law in Britain or
whether they’re developed in the European Court of Human Rights. And we hold people without charge or trial
on the basis of parliamentary legislation. That would be overturned if we had a charter
of rights. Just as holding juveniles in adult facilities
will be overturned if you’ve got a charter of rights. And there are many, many other examples. Now, if you don’t like that evolving jurisprudence,
that’s a matter of your own view, but I think I’m still justified in making my point that
we are slipping behind into a weird form of isolationism. If you go to New Zealand, you will see this
embracing of the Maori people, of their extraordinary approach to ensuring access to social justice,
to housing, dealing with social problems, because, in part – not totally but in part
because they have this overarching charter of human rights that informs government decision-making
and, indeed, most matters are resolved before they ever get to a court, because, when you’ve
got a charter in place, that informs what the parliament’s going to do, it informs what
the community expects and very, very few matters ever go to the courts in New Zealand, not
because they aren’t occasionally in breach of the law but because they are usually resolved
at the government and parliamentary and community levels. (Madelaine Chiam)
Greg, did you want to add? (Greg Craven)
Look, I won’t take up the particular point about Brexit. I think there’s this weird contradiction,
though. So Gillian is sitting there and she’s just
told us how judges are immensely restrained people and never run amuck and there’s no
danger of terms in charters that they will do broadly and have major effects and they’re
not going to sort of do it, and she’s just listed for us a whole lot of fundamental things
that, if we had a charter – she means a bill – if we had a bill of rights – (Gillian Triggs)
I mean a charter. (Greg Craven)
– would immediately be overruled by the courts. So the courts are simultaneously restrained,
they’re not going to act as a super legislature, but they’re going to do all of these quite
amazing things which will overrule whole lots of forms of legislation in whole areas of
policy. You really can’t have it both ways. The Judges can’t be restrained and yet incredibly
herculean in what they do. The second thing I think is funny about this
is – and I think you used the word three or four times – advanced, and I think this is
this peculiar idea, as I say, that we’re tucked down here in this corner of the world and
we actually never discovered computers. In fact, we never really discovered the wheel. We’re so uncivilised that we haven’t been
properly exposed to right and advanced thinking in Europe. I don’t get that, and I don’t get the idea
that, just because Australia is different to Europe or different to America – and thank
Christ we’re different to America – with their bill of rights, it means that we are in some
way demeaned or primitive. I mean, the thing I always think about with
these things is compulsory voting. Compulsory voting, I think, is very rare around
the world. We have it in Australia and I think it’s one
of the best things that we’ve got. Now, in terms of same sex marriage, that’s
an interesting one. My view on same sex marriage – so I hear all
sorts of different views, but I can tell you I have a gay brother and a gay son. I loathed the plebiscite, by the way, and
did everything I could to stop it. I am immensely relieved that, if we were to
have same sex marriage, it was brought in by a democratically elected parliament with
all the authority that that parliament had and then went into the Australian people rather
than being imposed by a group of unelected judges, and I think that would have been a
very bad thing for anyone who supports same sex marriage. (Gillian Triggs)
Well, I’m delighted, Greg, that we agree on one thing, and that is compulsory voting. (Greg Craven)
Yes. Well, there has to be one thing, on the law
of averages. (Madelaine Chiam)
And same sex marriage? (Greg Craven)
Probably complicated. (Gillian Triggs)
To put such a rosy view of the way in which our parliament acted on marriage equality
is little short of disgraceful. I can think of no other word. It was a parliamentary disgrace and we managed
to slither through it, and the Australian public voted for the right outcome and the
government was forced to go through that process. To describe that as a triumph for the parliamentary
democracy is, in my view, absolute rubbish. (Greg Craven)
We actually agree on two things. (Gillian Triggs)
Two things now? (Greg Craven)
The thing we agree on, I think, is I have no doubt that the process was revolting. As I said, I was completely opposed to the
plebiscite and I made that view very, very clear to both the prime ministers who put
it. I wasn’t saying that it was a triumph for
parliamentary process. Anything that has a plebiscite – (Gillian Triggs)
You implied it, certainly. (Greg Craven)
No. I’ll tell you what I’m saying rather than
what you’re implying. What I have said in the past and written,
and you can look this up, is that plebiscites are the pornography of democracy. They’re absolutely disastrous. What I did say is that, if you wanted to have
same sex marriage and you wanted it secure and you wanted it accepted and you wanted
it to subsist free of the sort of attacks that can be made on it that are not very nice,
then having it voted through a democratically elected parliament, no matter how bad the
preceding process, is vastly better than having it dreamt up and put in by three judges. (Madelaine Chiam)
All right. More questions. There’s another one here. (Male)
Thank you. My question is for Professor Craven. You’ve characterised Professor Gillian as
being activist in her motivations, and my question is what’s so bad about that, because
historically the people that have stood out in politics and law-making are usually either
very bad people or activist in their aims? Another question I had for you was obviously
you value the political process a lot and you talked about the Manus Islands and the
detaining of immigrants and you talked about how, if that is a law that’s been passed,
you wouldn’t object to it, but I guess obviously, it’s low-hanging fruit, that the Holocaust
was legal and numerous human rights abuses all over the world have been legal in different
times and different places, so is civil obedience really more important than doing the right
thing? (Greg Craven)
I think he’s on your side but I like him a lot. The first question that you asked basically
confuses politics and law. So you basically take the proposition that
you have a particular view of politics which is progressive, that it is objectively right
because you believe it, and, because you believe it, you are entitled to enshrine it in law
in a bill of rights which will bind everyone. You have real problems legally. You are not entitled, simply because you’re
progressive, to assume that that’s right. You are not entitled to impose that view through
unelected judges. My strong advice to you would be to stand
for election, get yourself elected with a number of like-minded people, and then pass
a law. What you’re actually doing is you’re helping
me a lot and that’s why I like you because you’re really bringing out, I think, the full
implications of what Gillian said. You are right, in one sense. I’ve looked at a lot of bills of rights. I mean, we could probably both carpet the
floors of our houses with bills of rights. I have never seen a bill of rights interpreted
by a judiciary free to interpret it – remember the Soviet Union had a bill of rights that
didn’t help anyone terribly much – I have never seen a western bill of rights that has
not been interpreted progressively. It’s like night follows day. That’s why progressivists like you, and I
congratulate you on your honesty, like these things so much, because you are absolutely
convinced, rightly, that the progressivist judges that you select will do the right thing
and, rather than interpret it necessarily according to law and certainly not according
to conservativism, will do it progressively. So if your case is basically political, you’ve
just proved my point. You’re not a democrat. Now, I’ve debated in a lot of teams. One of the rules is that the first person
to mention the Holocaust loses the debate, so now I disown you; you’re no longer on my
side of the debate, you’re on Gillian’s side. There is no possible comparison between the
Holocaust and Nazi Germany and Australia today and, as I say, anybody who thinks that I think
probably needs Xanax rather than a copy of the Constitution. But it’s interesting the way you slide your
argument around. So one of the things you said was, “Well,
of course, what you’ve just said is if parliament has legislation around things like Manus,
then you have no objection to that legislation and -.” Of course, I have objection to what
is being done there. Of course, I don’t like it and of course,
if I were prime minster, and God help all of us I never will be prime minister, I would
try and repeal that legislation. What I do maintain is that, if the legislation
is democratically enacted, then that is the law, and there simply isn’t a choice between
saying, “Well, we’re a bit of a democracy but we’re not a democracy if you don’t like
it or if Gillian doesn’t like it or I don’t like it.” So there’s a big difference between saying
you uphold democratic parliamentary authority and saying you therefore automatically uphold
every single piece of legislation as a good idea. I’m sure that half the legislation on the
statute books I don’t like, and the other half Gillian doesn’t like, so we’re again
on a unity ticket here, but I just don’t think you can say that. (Madelaine Chiam)
Gillian do you want to add? (Gillian Triggs)
No, I don’t. (Madelaine Chiam)
There’s one there. (Gillian Triggs)
Thank you for the question. (Female)
Hi. My name’s Debra/ I’m a doctor, not a lawyer,
so excuse my ignorance around the legal frameworks that you’ve talked about. I guess my question is to both of you but
it particularly revolves around the concept of upholding our democracy and allowing parliament
to make decisions and the fact that, in three years’ time, we can unelect a government if
they don’t make decisions that the majority are happy with. My concern is for the minorities in our community
who will never have the voice that’s loud enough to be able to influence the decisions
and protect their rights when potentially they’re being trampled, and I wonder why can’t
there be a combination of charters of rights that ensure that those who will never have
the majority voice in our communities are protected at the same time as having a parliament
that legislates. Perhaps you can enlighten me on how we might
move forward with that. (Greg Craven)
It’s always going to be a challenge in any democracy, including Australia, to make sure
that minority rights are protected, because obviously it’s not the case that governments
are going to be voted into office by minorities, although they may be voted into office by
combinations of minorities. I don’t think it’s the case, as some people
suggest, that every single minority in Australia is ruthlessly persecuted by parliaments, and
I think, if you go back over the statute books, you will find lots of legislation by parliaments
that actually protect minorities, and one example was the atrociously passed but nevertheless
valid piece of legislation around same sex marriage. At the end of the day, that particular minority
was protected by parliamentary legislation. It is parliamentary legislation that protects
people with all sorts of physical disabilities. It is parliamentary legislation in Equal Opportunity
Acts, some of which I wrote myself, which protect against discrimination all sorts of
people. As I say, in Gillian’s book, she goes through,
in some detail and perfectly fair to her, that sort of parliamentary legislation. Now, you’re always going to get minorities
who want something and who are not going to get it and they will conceive it as a right. They may be right or they may be wrong. The question is how do you come up with a
system that deals with that, and you’ve got a choice. You’ve got a choice where you can have a broadly
enacted human rights bill of rights and the judges will make up their mind and it will
not be democratic and you’re going to have to accept that, or you can have a democratic
system which is imperfect and may sometimes get it wrong, but, as I said, also often gets
it right, but you’re going to have to choose and, in choosing between a bill of rights
and democracy, you’re going to have to face all of those problems that I said before. You’re going to have to explain how this is
democratic. You’re going to have to explain what happens
when the judges get it wrong, because judges don’t always get decisions about minorities
right either. You’re going to have to explain what you’re
going to do when you can never change those decisions of the judges. So there is no, I think, easy answer for that
sort of thing. For me, it comes down to something fundamental. You’re either in favour of democracy and working
with democracy and trying to get it to work, and there are lots of arguments about minorities
where that’s happened, or you’re in favour of a system where you opt out of democracy
and you give it to a group of unelected people and you assume – you assume that they’re going
to protect minorities, even though they are appointed by the same executive government
that is the product of the parliament that you have such troubles with. I mean, I used to say to my law students,
and Gillian no longer has to worry about this, but they’d say, “We want a bill of rights,”
and why? “Because the High Court judges, they’re wonderful
people. They’ll protect minorities. They’ll do these great things,” and I said,
“Do you know what a High Court judge looks like?” notwithstanding we now have three women for
a small number of years, and they’d say, “No,” and I’d say, “Well, look at me. I’m white. I’m male. I’m Anglo Saxon. I went to a good private school. I was educated at the University of Melbourne
by Gillian. So you think that I would be able to make
these decisions with six of my brethren utterly unaccountable and that’s a better system than
democracy?” I don’t buy it. (Madelaine Chiam)
Gillian. (Gillian Triggs) Well, I think one of the critical elements
of our representative constitutional democracy is that we avoid the tyranny of the majority. It’s a critical feature that we respect the
rights and interests of a minority, whatever those minority groups are. Of course, in Australia we’re talking about,
in part, 3% of the population being indigenous Australians. I’m not talking about political power. I’m talking about recognising the individual
rights of every person in Australia, and, when you understand that protecting human
rights is not always a pleasant thing. There were certainly occasions – and senate
estimates had a lovely time criticising me for it – but there are occasions when even
a criminal has human rights. The lowliest outcast in the community has
some rights. The most powerless and vulnerable people in
our community have rights; whether we’re talking about aged Australians or people with disabilities. Over and over again, I’d have to say my work
at the Human Rights Commission demonstrated that, no matter what you’re talking about
– race, indigenous, sexual harassment – the people most likely to be affected and hurt
are those people with disabilities. It’s a shocking phenomenon because it reflects
the lack of control. But the point I’m making is that one of the
values that stands behind our constitutional democracy is that we do not have a tyranny
of the majority and that we protect the individual freedoms and rights of each person, and we
lose sight of that. It’s not about political majorities. It’s about a system with a political majority
that respects and honours the rights of every citizen in the country. (Madelaine Chiam)
Thanks, Gillian. We probably have time for one more question,
and there’s one just in the middle there. (Male)
Thank you for the very entertaining debate. My question will be for Professor Craven. You briefly touched upon the non-represent
– firstly, my name is Anka. I am a migration law professional, and my
question – you briefly touched upon, when you mentioned the non-representative nature
of the High Court and, by extension, you implied that the parliament is slightly better representative
of the population at large but nowhere near as diverse as our population is in Australia. We often hear that one out of every four Australians
was born outside Australia and that one out of two Australians has a parent born outside
Australia, and we have a situation with the High Court’s interpretation of section 44
of the Constitution whereby those people who are either dual citizens or have the right
to dual citizenship are unable to stand for parliament, and I would put it to you that
probably half the people in this room would be unable or ineligible to stand for the Australian
parliament. That includes myself. Again, reading between the lines, I believe
you believe in the Australian people to make good decisions if the question was put to
them in a referendum, as Section 44 would have to be. I share your optimism. I share your belief in the Australian people. My question to you, Professor Craven – and
I know I’m asking this in the context of neither of the major two parties having a commitment
to making any change to or putting to the Australian people any proposal for a change
of section 44 of the Constitution, which effectively means up to half the people in Australia are
unable to stand for parliament – do you believe that there is a solution to this issue? Do you believe that, were it to be put to
a referendum, whether it would actually get up? I certainly believe it does but I want to
hear what you think. Thank you. (Greg Craven)
Well, I certainly stand by the proposition that the Australian parliament, while not
perfectly representative of Australia, and no legislative body is perfectly representative,
is vastly more representative than the judges, both in terms of composition, in terms of
democratic chain of title. It’s very hard to be representative if no
one elected you. The section 44 one is an interesting one. What it actually shows is what happens, I
guess, when judges do have power in a particular context and they can come to a decision and
then it’s very hard to go around it unless you have a referendum, and I would say to
all of you, in relation to a bill of rights, you do have that open to you. If you are so convinced, like my colleague
there, that the whole world wants a bill of rights and they all want a bill of rights
as progressive, then it’s really easy: just get one party to put a bill of rights up to
referendum and see what happens. I don’t see any enthusiasm for that and I
think I know why. It’s interesting with section 44, actually. I was never sure that the High Court would
make that decision because I thought that frankly the decision that it came to would
prove inconvenient to the High Court because it would become the perpetual court of disputed
returns, so I might have been somewhat cowardly and got off that. I think it’s a really interesting question
whether or not it would win in a referendum. I’m not sure, because I’m an expert on one
thing and that is losing referenda. I was Malcolm Turnbull’s deputy on the yes
committee that saddled you with Queen Camilla, so I know all about how to lose referenda,
and referenda are very, very easy to lose – that’s one of the reasons a bill of rights
would lose; not only because it’s wrong but because it would be quite easy to defeat – and
the challenge, I think, for a section 44 referendum would be – for example, do you know what the
strongest argument against a republic was, as far as we could tell? The strongest argument that was put was that
we would be thrown out of the commonwealth if we were a republic. Now, the majority of countries in the commonwealth
are republics, so that’s complete rubbish, but people were really frightened. Why were they frightened of being thrown out
of the commonwealth? I mean, I don’t think anybody in this room
probably cares about the commonwealth? Well, the answer is the Commonwealth Games. If we weren’t in the commonwealth, we couldn’t
be in the Commonwealth Games. In the Olympics, we have to play Russia and
America and we lose. In the Commonwealth Games, we get to play
Jamaica and Belize and we win, and that really affected people. Now, the reason I say that is because you
can get some really silly arguments that get traction. I think the argument that would be put in
a section 44 referendum by the sort of people who would oppose it would probably be vote
for the Isis terrorist in parliament. That would be the no case. I know no cases very well because I’ve been
mugged by one. And the question would be how would people
react to that type of thing. Now, I would defend the result, if the result
went – and I have my own view of how it would go – if the result went against the way I
went, because that is indeed the constitutional and legal process we have to change the Constitution. I mean, both of us know that out of 44 referenda,
36 have failed. Thirty of them not because they didn’t get
a majority of states but because they didn’t get a majority of people. Well, that is really cool. That really is democracy. That’s hard, ugly democracy staring you in
the face, and it’s very hard to say although we’re not going to do that. So I couldn’t actually predict. I mean, having gone through the republican
referendum and still bearing the scars of it, I think it would be interesting to see
how that one would go. (Madelaine Chiam)
Gillian? (Gillian Triggs)
I’m certainly concerned by the undemocratic situation in which we currently are. I suspect more than half of us have a foreign-born
parent or grandparent and, for many, many nations, that means that we would be entitled
to ask for nationality of that other country. So I think that what it’s done is effectively
prevent something like half the Australian population from ever standing for parliament,
and I think that’s an extraordinary position to be in, but, for all the reasons Greg’s
set out, getting a referendum through to change that would be exceptionally hard to achieve,
and who knows. This is one of the great difficulties we have
to face in Australia. The extreme difficulty of changing that Constitution
that does not protect our rights and the extreme difficulty of managing a parliament that also
all too often does not protect those basic rights, and that’s the challenge that we have
to discuss, and I would like to see more debates of this kind so that we can refute the kinds
of arguments that Greg is making, most of which are inaccurate or muddled arguments
that do not reflect the reality of the way in which the law develops and the power of
the courts. Should I point out – I should point out, too,
that our judges are appointed by elected representatives. (Greg Craven)
Well actually, they’re not. They’re appointed by the Executive. (Gillian Triggs)
On the advice of the government. So, I mean, we know who our High Court judges
are because they’re appointed by senior politicians, indirectly. I mean, technically through the Executive
Council but in fact through our elected representatives, so it’s a little misleading to say that all
our judges are white middle-class Anglo Saxons who know nothing about the world. That’s really a ridiculous proposition and
I think we have been inordinately fortunate in Australia to have the calibre of judges
that we have. That doesn’t deal with the point, though. Judges would have a capacity to interpret
these vessels that Greg talks about, and that’s a fair argument, except that he completely
ignores decades of jurisprudence, decades of evolving law, that explains what these
terms actually mean. So it’s grossly misleading to describe it
as an empty vessel. These are words that have had meaning for
millennia and they’ve had meaning because courts have given it to them, parliaments
have given meaning to those words, and that provides the precedent basis on which any
judge would try to reach a determination as to what these terms mean. Equality before the law. How do you protect – and the lady asked this
very important question – how do you protect minorities? In Australia, you will know that the Liberal
Democratic Party passed laws for the intervention in the Northern Territory, and, in order to
do it under our existing laws, had to stand down the operability of the Racial Discrimination
Act. The only way they could do it was by taking
out of consideration the racial discrimination legislation, and that is done by the federal
parliament and its laws. The Racial Discrimination Act has now been
re-applicable, but, nonetheless, we still have an extraordinary situation in the Northern
Territory where the autonomy of our indigenous peoples has been subsumed and we have things
like debit cards and so on – welfare cards that diminish their capacity for autonomy. These are serious questions in Australia and
I’m really distressed if the outcome of this debate is that we’re both at polarised points
of view. We’ve both put our arguments, I think, as
strongly as we can and, of course, Greg is wonderful in the way he makes some of these
arguments, because arguments very often have a germ of truth. There’s a little bit of truth in just about
everything that Greg has said, but it’s misleading and confusing because it’s failed to understand
the core arguments, and I would like to see more debates of this kind that bring together
a better understanding of what we’re dealing with in the centre of the arguments and not
the sort of extreme positions that I think perhaps have been taken tonight. These are serious questions for the Australian
public to consider and I think if we can talk about how we want to resolve these problems
– if we resolve them through parliamentary scrutiny committees, through parliamentary
processes, then I will retire from the debate about a charter. I am not talking about a bill of rights and
I will not be placed in the position of putting that view. I am not arguing for constitutional change. I am arguing for a legislated federal charter
that would help to provide some guidelines, but I would very much like to see this debate
continued but perhaps with greater accuracy on some of the legal and factual matters. (Madelaine Chiam)
So I have a strong suspicion that the audience would like to see this debate continued. I’m not sure that Robert Manne really wants
us to keep going, because time is running out. But also, Greg Craven keeps looking at me
going, “I need to say something else.” So, Greg, you have one minute, and then Gillian
will have one minute, and then we will call it quits. (Greg Craven)
I think Gillian’s had about six minutes so I’m happy to take one minute. I’m sure there are a number of law students
in this audience. I don’t think you do Latin maxims anymore. We used to. The Latin term for what Gillian is talking
is rot. It’s a very evocative Latin term. Take an example. Members of parliament appoint judges. They do not. Members of parliament, who have actually been
commissioned as members of the Executive, appoint judges, and they can appoint effectively
whoever they like and they can make sure that those judges are suitable for the interpretation
of a bill of rights. I notice that Gillian, towards the end of
the debate, started to wriggle away from the bill of rights, even though occasionally she
talked about the bill of rights herself. We know, of course, that Gillian’s legal analysis
of this is so sophisticated that we didn’t even have the [unclear] 01:49:52 case in the
index. We did in fact have Shaun Micallef, Australia’s
72nd most funny comedian, but we didn’t actually have the case that says Gillian’s dialogue
model is unconstitutional. So as I say, it’s the Volkswagen debate. You’re being offered something that won’t
work, that can’t be done or have all sorts of problems and basically half of the problems
are sort of admitted. On the one hand, the judges are not going
to do anything. On the other hand, they’re going to be all-conquering
heroes. I don’t accept that this is a debate where
I’ve been trying to mislead you or trick you. I don’t think it’s my job to try and mislead
and trick you. I do think this stuff about being demeaning
is condescending. I think it’s condescending to anyone who takes
this particular side of the debate. I think it’s condescending to any one of the
Australian people in the electorate who are entirely entitled to that type of debate. But I think we need to be quite clear what
we’re talking about. We are talking about suspending a fundamental
element of parliamentary elected democracy in favour of a judicial club of heroes, and
nothing changes that. (Madelaine Chiam)
Gillian. (Gillian Triggs)
Well, I’m going to use my last few seconds to say I’m really pleased to be here tonight
because this is really the last time for a few years that I’m going to be as outspoken
as I have been this evening, because I’m just about to take on a United Nations role, and,
for that reason, I will morph from being an Australian citizen to an international public
servant and I will no longer be able to make the kinds of remarks that I’ve made tonight,
so I’ve thoroughly enjoyed it, I hope you enjoy it, and I hope that this debate can
keep on going. Thank you very much. (Madelaine Chiam)
So just before we finish and you all depart, I just need to say a few thank yous, so just
remain. First of all, a thank you to everybody at
La Trobe for putting this together. There are people in marketing and people in
technical roles who do a lot of work behind the scenes. Robert Manne, who is so active and has this
ongoing commitment to public debate in Australia that allows these conversations to flourish. To all of you for coming and for paying attention,
because without you we can’t have these conversations. Obviously to our two speakers, who have been
thought-provoking and provoking in a range of ways. And before you leave, there are two more events
coming up in September; one on climate change, and you can see it includes Bob Brown, David
Ritter, Amanda Cahill and Mayisha Moyn, and one on the kinds of drinkers that you are. So I leave it up to you where you would prefer
to have a think about yourself – your sustainability commitments or your drinking commitments – but
perhaps you could bring both of them along. So again, thank you all for coming, and thank
you very much to Greg and Gillian.

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