Public service lawyers must defend truth: Gillian Triggs

By Stephen Easton

Wednesday August 23, 2017

Public servants must be “eternally vigilant in maintaining their tradition of frank and fearless advice based on evidence” in the post-truth era, according to former Australian Human Rights Commission president Gillian Triggs.

“I think there has been a definite trend in Australia for public servants to be more concerned about doing what the minister’s asked them to do, than they have working collaboratively with the minister to inform them about evidence-based policy,” she said this morning, in an hour-long keynote speech to the Power to Persuade academic conference.

“But perhaps more than that, I think they have not always met the ethical underpinnings of good government and there are some examples of this that really affect me, as a lawyer.”

Triggs said she was “particularly concerned” that lawyers in the public service who “understood” there was no legal basis for government officials to send refugees back to the detention centre on Nauru last year had advised the federal government that it could rapidly amend the Migration Act, in order to fend off a High Court challenge to the offshore detention system.

In a famous case involving a Bangladeshi refugee being sent back to Nauru, a majority of the court ruled in the government’s favour. A single dissenting judgement from Justice Michelle Gordon argued the government’s last-minute amendment was invalid.

“She’d been assessed to be a refugee, there was no question about that, there was no cause to use the language about genuine refugees, or economic refugees… she had passed all the legal tests under Australian law, she was in Australia and she was vulnerable to being returned to Nauru,” Triggs said.

“… Now the government officials and the lawyers knew very well that the Migration Act did not allow that return to Nauru. They knew that it was not authorised by the legislation. But within … two or three weeks of the litigation getting to the High Court, [Parliament] passed a piece of legislation retrospectively to provide a basis on which she could be returned to Nauru.”

Triggs added that since Australia is “the only common law country in the world without a charter or bill of rights” enshrining principles that in some cases go back as far as the Magna Carta, the High Court is “constrained” to go by the letter of the law, even if it infringes on these rights – most of which are not in the Constitution.

“If the legislation is unclear, it’s ambiguous, the High Court’s got an opportunity to look at the common law – at the right not to be detained arbitrarily without trial by your peers, under the Magna Carta,” she said.

“… And this is core common law, it’s not the imaginings of a radical left-wing United Nations drafting committee, these are fundamental principles of the legal system that we have all been educated in, and support.”

She suggested that lawyers in the public service, however, have a higher calling to consider these principles which underpin liberal democracy, at the same time as trying to serve their ministers.

“Now my question is: who are the lawyers, who are the public servants, who are drafting these laws, and advising a minister that it’s possible retrospectively to pass laws of this kind?

“Now if you’re a practising barrister or solicitor in New South Wales and Victoria, you have an obligation under the codes of conduct for your profession to not only act ethically but, believe it or not, consistently with human rights.”

Earlier she had pointed out that while modern international human rights treaties are generally accepted and play a role in the Australian system, governments can always argue they are not actually part of Australian law and so their legislation does not have to comply with them.

“But the key point is not so much the law as the ethics of the public service. How can the public service produce this kind of advice to a minister?

“Who drafted this legislation? And is that advice being given to the minister, that it is unethical and illegal under Australian law because of our duty of care, and contrary to our international treaty obligations that were so much part of the history of Australia, over the last 60 years at least?”

Triggs added that another problem exacerbating the effects of the post-truth era was the rise of career politicians – the “insiders” who go from jobs as political advisers to being preselected as candidates for the major parties with little or no other life experience.

She also said “extraordinary provisions that prevent public servants speaking out” were harming our democratic debate by strangling off another source of factual information.

“I think it’s very important that we move forward with civic education on Consitutional issues and on our fundamental freedoms,” said Triggs, before taking a shot at her foremost media critics.

“And it’s very important for the debate that’s currently going forward on the question of marriage equality. We now have people, particularly within The Australian newspaper, arguing that we have no or inadequate protections for religious freedoms.

“Now if you read the Constitution you would know that there’s a provision in the Constitution – a rare provision in the Constitution, for human rights – and that protects the right to freedom of religious expression.

“It’s one of the best protected human rights under Australian law. And we now have a full-on daily campaign that we do not have that right, of adequate protection of religious freedom in this country.”

After the often fact-free attacks she suffered — led by the government itself — during her time leading the AHRC, Triggs enthusiastically took on the topic of the conference, which considers what hope there is for the dream of evidence-based policy in the current climate, where political leaders and voters alike increasingly pick and choose whatever supposed truth they prefer from a range of options, all served up by dutiful online content creators.

She mentioned a range of examples, from the “alternative facts” offered by Donald Trump’s team to the false accusations levelled against Save the Children staff working in offshore detention centres and the Children Overboard affair, both of which demonstrate governments achieving political gains by taking action based on a premise that was later shown to be false.

One might argue there are often multiple versions of what a set of facts means, depending on who views it, and this has always been the case. Or, that government leaders have never been known for letting the truth stand in the way of a popular policy.

But it is clear that the rise of post-truth politics is a real phenomenon, and it certainly poses ethical and practical challenges that public servants and policymakers must confront.

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