President of Human Rights Commission accused by torture advocate of being “legally flawed” … Reliance on international covenants … Attempt to discredit HRC on eve of report on children in immigration detention … Gillian Triggs being savaged by dead sheep
LEGAL affairs scribbler for The Australian Chris (Tap Dancer) Merritt has dug-up Prof. Mirko Bagaric, from that red-hot heart of legal scholarship Deakin University, to cast aspersions on Gillian Triggs, the president of the Human Rights Commission.
Mirko is a fresh recruit in The Daily Rupert’s war on Triggs and the HRC. He was gushingly described by Merritt as, “one of the nation’s leading authorities of (sic) human rights law”.
This is the same Prof Bagaric who in 2005 declared that torture should be legalised and is “morally defensible”, even if it causes the death of innocent people.
The Feinstein report on the CIA’s detention and interrogation program wasn’t of much assistance to torture advocates, although Mirko’s position seems to be that torture is legitimate if it saves lives, but not necessarily where it seeks to extract intelligence.
See executive summary here
The torturing of detainees by the CIA and its contractors was laid out by the US Senate Intelligence Committee in horrifying detail. The CIA misrepresented just about every aspect of the program to the administration and the report found that no useful intelligence had been obtained as a result of “enhanced interrogation”.
In fact, the evidence shows that detainees fabricated information, resulting in faulty intelligence. No detainee of the United States, who had been subjected to torture, has been given an open trial.
Mirko’s record on the virtues of torture hasn’t stopped him lending the Tap Dancer a hand in combatting Triggs’ on the human rights front.
His theory was that in the Basikbasik case Triggs was wrong to base her recommendation on international law.
Basikbasik, a West Papuan activist opposed to the Indonesian annexation and occupation of his country, has been held in Australian immigration detention for over seven years, without charge, after serving a prison term for the manslaughter of his partner.
Basikbasik complained to the HRC that his human rights had been violated under article 9 of the International Convention on Civil and Political Rights (arbitrary detention) to which Australia has agreed to be bound.
In her report Triggs found the government had failed to to find other forms of less restrictive detention or take action to find a third country of resettlement.
His detention was arbitrary because he was being held without charge, indefinitely and it was disproportionate to the legitimate aims of the Commonwealth.
The president of the commission recommend to the attorney general, Gorgeous George Brandis, that the complainant be released from Villawood and a form of community detention be found for him.
Details here
According to Merritt’s report, Prof Bagaric thinks that Triggs is legally “flawed” because she based her findings on the requirements of the ICCPR. Further, she was “clearly wrong” to conclude that the West Papuan’s continued detention is arbitrary.
Maybe Mirko and Merritt overlooked the bit where French CJ said in the recent High Court case dealing with the capping of protection visas that legislation must be construed consistently with Australia’s treaty obligations – unless parliament specifically and unambiguously says otherwise.
Prof Jane Adams from the Kaldor Centre for International Law at UNSW wrote in The Sydney Morning Herald that the High Court, in the recent case dealing with damages for Tamils held on the high seas, that the case did not change Australia’s international law obligations.
The purpose of the ICCPR and other treaties to which we have signed-up is to provide a “normative minimum standard” for the treatment of all people within Australia’s jurisdiction.
What with his advocacy of torture in breach of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, it’s little wonder that Mirko doesn’t think the ICCPR should apply.
Then there’s the issue of whether Basikbasik’s incarceration is arbitrary. The prof from Deakin says it’s not arbitrary. Maybe there’s another word for the executive’s decision to permanently detain someone without charge or trial and make no arrangements for any alternative – in breach of the rule of law.
Malcolm Fraser had a strong piece on Wednesday (Feb. 4) in the Fairfax Media on why the HRC is more important than ever, particularly at a time when the government is shredding common law rights and handing more police-state powers to the security agencies.
He asked:
“Are the attempts to diminish the reputation of the commission designed to make it easier for the government to ignore its report [on children in detention]?”
After years of lambasting Gillian Triggs and with strategically placed articles in the Murdoch sheets swelling the chorus, it was interesting to see the other day Soapy Brandis declaring that while Triggs may have exercised “errors of judgment” nonetheless, “she is a good person … she is a fine lawyer. Her heart is in the right place.” But:
“I am very sceptical of the establishment of an inquiry into children in [immigration] detention at a time when the recently elected Abbott government had the problem well and truly solved.”
The ICCPR is a schedule to the the Australian Human Rights Commission Act, and the legislation requires the commission to inquire into “any practice that may be inconsistent with or contrary” to any human right.
The international obligations are the principle ones in this context that the HRC is required to uphold.