executive power

Gillian Triggs

Gillian Triggs was Australia’s Human Rights Commissioner – and is someone that doesn’t require introduction.  Formerly the Dean of the Sydney Law School and now Professor of the Melbourne Law School – she is a globally recognised legal authority on human rights and is author of the book ‘Speaking Up’. 

Gillian Triggs caught up with Misha Zelinsky to talk about all things related to foreign and domestic human rights.

It was an incredibly diverse discussion covering issues such as the rule of law, the future of democracy, how governments use executive power to bully individuals, how do deal with indigenous reconciliation and why Australia lags so far behind in when it comes to tangible gender equality.

EPISODE TRANSCRIPT

Misha Zelinsky: So, Gillian Triggs, welcome to the show.

 

Gillian Triggs: It’s a great pleasure to be talking to you.

 

Misha Zelinsky: And, well, thanks so much for joining us. Now, I was thinking, there were so may places we could start this conversation. You know, global human rights, a lot of people will say that things are tracking terribly, and you can point to lots of data points that will say things are going badly. We’ve got rise of autocracy, populism, et cetera. Other people say things are going well. Infant child mortality’s on the way down. Living standards are up across the world. So, would you class yourself as a pessimist or an optimist? I mean it’s a broad topic but maybe we’ll start with it.

 

Gillian Triggs: Well, I’m definitely an optimist, and I think that there are significant improvements in human rights globally, partly because we live in a global environment, so that we’re much better informed about what’s happening than we ever used to be. But there are some pockets of absolute horror, one, of course, being the Rohingya, the civil war in the Yemen at the moment, the continuing problems of Palestine and Israel in the Middle East, and poverty in certain pockets in the world that is really appalling.

 

But I’d have to say that, on balance, I think that we are inching our way forward. I read, just by way of an example, because it’s International Women’s Week this week, I’ve been doing a number of speeches on the advances for women globally, as well as in Australia, and the irony of this report by the World Economic Forum is that women are actually doing better progressively, in developing countries, and in developed countries, they are actually regressing. Now that’s an extraordinary fact, apparently, documented by the World Economic Forum [crosstalk].

 

Misha Zelinsky: I think that would come as a big surprise to a lot of people-

 

Gillian Triggs: Yeah, it would.

 

Misha Zelinsky: … because I think the discourse at the moment would suggest, with the Me Too movement, et cetera … and we’ll probably pick up gender a little later on, but that’s just a … I’d like to return to that, actually, if we could.

 

Just in terms of one of the big trends we’re seeing at the moment, you know, the end of the Cold War, there was this sort of march of democracy, liberal democracy, and free markets, and now … and that seemed an inevitability at the end of-

 

Gillian Triggs: The Arab Spring. [crosstalk].

 

Misha Zelinsky: Yes. All these things, and now we’re seeing, perhaps, things swinging the other way. Not only the more nascent democracies falling into autocracy, but we’re seeing populists being elected in very established democracies. I mean, do you see that as a problem for human rights, more generally?

 

Gillian Triggs: I do see it as a problem. I think there’s been an extraordinary phenomenon of a rejection of some of the underpinning elements of contemporary democracy, that I thought would lead us onwards and upwards, but are now being challenged, particularly, of course, the major human rights treaties, the Refugee Convention. But the Convention on the Rights of the Child, where children are being detained, in unprecedented ways, for unprecedented periods of time.

 

So, I think that we are in a very disruptive, tumultuous global environment where we have … I mean, you almost can’t have this conversation without discussing the influence of Trump on the post-truth world we live in. The things that I thought were crucial in my early days from university, the 60s, the 70s, 80s, all the way through. Fact-based policy making was crucial. The reliance on evidence, science was king, in my youth. Today, governments may receive reports from experts on all sorts of issues, climate change, trade war issues, rising inequality, the loss of the manufacturing sector and the rise of IT, all of these areas are subject to factual reports and expert evidence, but governments are increasingly free to ignore them, and to challenge them, or reject them.

 

Misha Zelinsky: People are even making it a virtue. During the Brexit debate there was a … you know, people are sick of hearing from so-called experts.

 

Gillian Triggs: Right.

 

Misha Zelinsky: But what’s the way to address that? How do you actually cut through in that situation? Because, you’re right, when you don’t have facts, and when my opinion’s as good as your fact, that becomes very difficult-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: … to actually have an agreed starting point. Because it used to be, you know, you’d have, here’s where we’re starting, and perhaps we should go left or right, but now we can’t even agree on the starting point of the facts. So, what is a way that you think you can actually address that?

 

Gillian Triggs: Well, I’m hoping that this is a phase, that we’re dealing with a truculent child almost, and in some … some respects we are. There’s been a very interesting piece of work done recently in Australia, between the New Democracy group, which is a very interesting approach to expanding the role of the community in civil society and the democratic processes, along with the Institute for Public Affairs, which, in my view, is an extreme right-wing vehicle for misinformation. But nonetheless, apparently they’ve worked together, and I happened to be present at some of the New Democracy meetings, to get a sense of what was one of the most … what was a top priority for a good functioning liberal democracy? And both those entities, coming from different spectrums, agreed with their participants that the number one thing of importance now in Australia was evidence-based policy making.

 

In other words, there’s a … Those who think about these sorts of things, and see the threats, in my case, to classical, long-established principles of international human rights law and treaties, that underpin much of what was happening in Australia in this area, right up until the 90s, I feel that we must get back to that fact-, evidence-based policy making process. And it’s clear that the fact that we’re not, that governments are so quick to override them, ignore them, whether it’s on climate change or defense policy, that’s been extremely … I think it worries a lot of people.

 

Misha Zelinsky: Yeah, and so, interesting is you’ve talked about facts and evidence. You’ve got a legal background. Think of, what’s the role of the rule of law in all these things, in terms of human rights? You’ve mentioned before, the deficit of democracy is starting to creep in, and the advance of technology, so quickly, in a lot of areas, with data retention laws, and facial recognition, and all of these things. I mean, what’s the role of the rule of law here in preserving, particularly in advanced democracies, preserving human rights?

 

Gillian Triggs: Look, I think that’s an important question, because the phrase ‘the rule of law’ slips off politicians’ lips as it does off lawyers’ lips, and those looking for social justice or civil society. It’s a very key principle, and … but it’s made up of different ideas. One is that it’s absolutely dependent … Well, the rule of law absolutely depends upon a liberal democracy, a functioning liberal democracy. Separation of powers, between executive government parliament and the judiciary, which is severely under threat in Australia at the moment, with the rise of executive decision making and discretions that are not subject to judicial review, for practical purposes.

 

So, those are the elements of the rule of law. More precisely, it might be that one has to emphasis not so much the legislation passed by Parliament, which is the law, but the rule of law is broader than what Parliament might have just passed last week. In other words, it encompasses common law principles.

 

And if I could give you a very, very quick example, a federal court judge has recently ruled that a child with … who’s been attempting suicide on Nauru should be brought to Australia, ordering the Minister for Home Affairs, Mr. Dutton, to do so, contrary to his views, it’s feared. The minister has stopped this over the previous nine months.  What this judge did was look beyond the precise terms of the Migration Act, to look at the duty of care that governments owe unto their citizens. Now that’s a sort of broad common law principle that’s embraced within the idea of legality and proper process, and what he said was that the government owed this duty of care to the child, and, therefore, the child had to be brought to Australia for psychiatric and medical care.

 

So, that’s one example, but there are many others that are essentially dependent upon transparency, fundamental common law principles, the right not to be detained arbitrarily without charge or trial, for example, the right of criminal trials before you’re detained. These are fundamental ideas of the rule of law. So, that’s what I mean by the rule of law, and I think we’ve lost track of what that means. I think many Australians, if you ask them on the street, they’ll say, “Well, you know, if that’s what the Parliament has passed as a law, then that’s the rule of law.” It isn’t actually the rule of law, the rule of law is the … are deeper fundamental principles.

 

Misha Zelinsky: That’s an interesting point. So, in terms of … you know, the rule of law, these things have tended to come from western liberal democracies, in the way you’ve just explained it. Do you think that this … the lack of … as we’ve eroded our principles in this space, and … has it made it more difficult to prosecute a human rights agenda more globally? Because if you’re not living up to your own ideals, how do you … You know, when you look at some of the examples you’ve cited, the Rohingya, or if you look at the Uighurs in China, is it a-

 

Gillian Triggs: Yes, indeed.

 

Misha Zelinsky: … difficult thing to highlight in other countries, perhaps, that are more autocratic, when they say, “Well, you know, you guys aren’t living up to your own ideals at home”?

 

Gillian Triggs: That’s always a difficult position to be in. I mean, other governments in the Human Rights Council, for example, have been very critical of Australia’s incarceration rates for Indigenous Australians, the highest in the world, violence against women, deaths of women in domestic violence, and of course, asylum seeker refugee policies. So, Australia is getting a lot wrong, but when we come to, say, dealing with the Chinese, on, let’s say … let’s take the Uighur in China or Myanmar on the Rohingya, it’s very hard to argue, and persuade those countries, because they are not culturally, historically, as committed to the rule of law, in the way that I’ve described it.

 

They will see the autonomy of the state, the right to … for a state to manage its own peoples, in the way they see fit. Human rights are for the state, not for the international community. It will be interference in their domestic policies. The Chinese will always say that, so it’s extremely difficult, and that partly adds to the argument that human rights are not universal, but they are a Western construct. I don’t believe that that’s true. The truth is that China, and Japan, and many other Asian countries, African, Latin American countries, support the basic principles of the rule of law. And the Chinese talk about the rule of law. The trouble is that there’s a huge discrepancy between the rhetoric and the reality.

 

Misha Zelinsky: Well, it’s often easy to talk about, but what are the safeguards … I’d like to get your opinion on this. One of the safeguards that those who have studied democracy, and when you go to the United States, prime example, the Bill of Rights, and the way the concerns you had, where if you … the primacy of parliament over all laws, or if … to say, well, there’s a check and balance, and they typically have the courts. Another way to do that is to have a Bill of Rights. Now, Australia, of course, doesn’t have one. There’s always been debate about whether or not we should have one. What’s the role of a bill of rights in human rights, from the respect … within a democracy?

 

Gillian Triggs: Well, I think we have to be … firstly, distinguish between the sort of American system, where they’ve got a constitutionally entrenched Bill of Rights. That gives the Supreme Court, and other courts in America, an enormous level of power. They are a very powerful check and balance on the power of the executive. Executive … the decision-making of the current government, for example, and on the powers of Congress. In other words, if something is passed, or a low is passed, which breaches those fundamental rights, the right to equality before the law, the right to freedom of speech, et cetera, then the American courts have the right to strike it down. And that’s a very powerful remedy.

 

But then we have the other kind of model, which most other countries are more familiar with, and more comfortable with, and that is a legislated human rights charter. Britain, Canada, New Zealand, just to name a very few, have legislated human rights charters. Australia is the only democracy in the world, and the only common law country in the world, that doesn’t have one. So, if you’re in Canada, New Zealand, France, Germany, many, many, many countries have these charters, you can go to the courts and say, “The Parliament is passing laws, or proposes to pass law, that is in breach of the Charter of Rights.” The court, depending on the terms of the legislation, may, and this is what’s called the dialogue model, will be able to say, “Well, the law that Parliament’s planning to pass, or has passed … is in violation of these … of one of the rights in the Charter, but we now are … we won’t … we’re going to strike it down. We can’t make it invalid. What we can do is send it back to Parliament, and ask Parliament to re-draft what they’re doing, so that it complies with the Charter.”

 

So, it’s creating this sort of dialogue between the executive parliament and the courts. But it’s nothing like as powerful, really, as … Well, most models are not as powerful as that. It’s interesting that … the state of Victoria, here in Australia, has such a dialogue model, and Queensland just voted for one, two or three days ago.

 

Misha Zelinsky: Do you think … you know, notwithstanding that … So, the constitutional model brings with it its own problems. The United States Supreme Court now has become a battleground for partisans, in a way, and particularly, you see problems around, you know, the Second Amendment, with gun rights, and those types of things. Do you think this sort of consultative model is a better way? Leaving aside how realistic it would be to get a referendum up in Australia on a constitutional bill of rights. We have a checkered history here with getting referendums passed. But do you … Which model do you think is better?

 

Gillian Triggs: Well, I think the best answer for me to give is to say that, in the current political and historical environment of Australia, we will not get an entrenched constitutional bill of rights. So, for practical purposes, you’ve just got to say it isn’t going to happen. I’m very much coming to the view that Australians, over time, have preferred, if you like, a parliamentary sovereignty model. They don’t like the idea of the courts being too powerful, but they want proper check and balance on executive governments. What they’d rather … I think most Australians would rather do is to give Parliament the stronger power.

 

Now, my problem with that is that Parliament has actually explicitly breached fundamental human rights in legislation, and particularly over the last 15 years or so, so that you can’t rely on Parliament to ensure fundamental human rights. So, where I come down is to say, I think, because things often have to be taken in steps, so that people learn to trust the system, I think if we had a legislated charter, a longer dialogue model, just to get everybody used to it, so that the courts could hold up Parliament and say, “You’ve just passed a piece of legislation that is in breach of fundamental rights under the Charter. We now ask you to go back and look at it again.” Now, that does make it … it politicizes it of course, but it’s not giving the power … absolute power to the courts.

 

Misha Zelinsky: How would you settle what goes in … So, let’s assume that a government of the day was to legislate the charter. What goes in the charter? I mean is it … is that [crosstalk]-

 

Gillian Triggs: Well, Queensland’s just done it. Now, one thing that a lot of people raised with me, on public debates about this is, “Oh, well, we don’t want an American system, because we don’t want the right to bear arms to be interpreted in the way that it has been.” Well, of course, I can’t imagine for a second that Australia would ever want a right to bear arms. Australians don’t have arms. We have no history of that.

 

Misha Zelinsky: Yeah, and I think we’re quite … I mean, the John Howard gun reforms, I think, are very well received and for all the-

 

Gillian Triggs: Very well received. It was a very, very important move that he made, to use that moment of power, to reduce the right of access to these kinds of guns, and I think the Australian public has been right behind it. So, with exceptions, I think, we just saw on the news last night two more people shot dead in Sydney and another couple in Melbourne, I mean, it’s going on all the time. People are still having guns illegally and killing each other with them, but it’s not in … not remotely comparable to the United States, and I don’t think Australians would be tolerant of any provision of a charter that allowed an individual right to carry guns. I think that’s out of the question, so I think we can put that one to one side.

 

Perhaps the more controversial one, that we probably would have to think about, because you’ll have right to freedom of speech, right to privacy, right to freedom of association, et cetera, et cetera, but the one that would be likely to raise the greatest level of debate, I suspect, would be the right of Indigenous peoples to self-determination, or to recognition of their culture, and right to, let’s say, an advisory voice to Parliament. Well, you could include provisions of that kind in the charter, and many, perhaps, would be … will be concerned about that.

 

Misha Zelinsky: Would you bundle the two things together? I mean, it strikes me, perhaps Indigenous issues … I mean, that … You know, and I’ve experienced … You know, I was formerly a defense lawyer with the Aboriginal Legal service, you know, so these issues are dear to my heart. But I wonder whether or not there is a case for that to be dealt with-

 

Gillian Triggs: Mm-hmm (affirmative), separately.

 

Misha Zelinsky: … on its own merits. I mean, I don’t know …

 

Gillian Triggs: I think it … Just as it was odd to have a constitution that didn’t really talk about our First Nations peoples, I think it’d be very odd to have a charter of rights that didn’t. The Queensland one has got recognition of the cultural and spiritual, sort of heritage and importance of the Indigenous peoples to Australia. I forget the exact wording. But I think that’s a pretty powerful recognition of Indigenous as the First Australians, and that their right to be consulted in relation to matters that concern them.

 

Now it doesn’t have to be all … well, it could be along … with that kind of language, cultural respect, and so on. But I am … I mean, I haven’t thought through in my own mind how to handle this, really. I would hate to see us not go forward with constitutional change to recognize Indigenous Australians at the … you know, in order to get a charter of human rights. I think constitutional recognition of Indigenous Australians and to eliminate the race power from the constitution are absolute constitutional priorities. And I think with political leadership, we could do it.

 

Misha Zelinsky: Where do you think the debate’s at on the Indigenous acknowledgment question? Because it seemed we were moving towards a Respect-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: … campaign, and then suddenly there was Uluru Statement from the Heart …

 

Gillian Triggs: The Recognise campaign. Mm-hmm (affirmative), that’s right.

 

Misha Zelinsky: Sorry, the Recognise campaign, apologies.

 

Gillian Triggs: Yeah, and then the … the Uluru-

 

Misha Zelinsky: And then the Uluru, and then, seems now there’s a split, and you know, history shows, unfortunately, that you need bipartisan support on referendums in Australia, given the high bar to get over the-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: … you know, the vote.

 

Gillian Triggs: I think that’s right. I’ve come to see political leadership and bipartisanship absolutely vital to really moving forward. It’s very, very hard in Australia in the current polarized, and really quite toxic, political environment. I think it’s a tragedy, but I do think it’s enormously important that we get recognition. I mean, it was extraordinary, after the Uluru Statement from the Heart and the Australian Human Rights Commission was engaged with assisting with the collaboration and discussions, across the whole of Australia, to get some agreement on that Uluru statement. So, we were a little bit involved with it, but mainly through Mick.

 

But I think the key point is that that was dismissed by the then Prime Minister within 48 hours, with no explanation. I think that’s horrified a lot of Australians. I think they see that as grossly disrespectful of a process that was actually a coherent process, over about 10 months, I think, and not easy for the Indigenous community … communities across Australia, to agree on that statement. They had to compromise, and they had to work it through and I think that was very commendable.

 

And what they were asking for was so little, just to have a voice of advice and consultation on the matters that concern them. It’s not a major … You wouldn’t have thought it was a major request. The Prime Minister could easily have said, “Look, this is terrific. Let us go away and work out how we can make this work.” But with the leadership of the Prime Minister, I think we could have got there.

 

Misha Zelinsky: Well, it’s also strikes me, on this question, that we need to have a national … There’s a whole heap of issues bundled in with this. You’ve got the Australia Day thing, and then you’ve got the question of a republic, and then the Indigenous question, and how to deal with reconciliation. It strikes me that … I’m a person, I think a republic is a good way to deal with some of these issues, because it’ll allow us to update what it is to be … have a modern and inclusive Australia, and perhaps, within that, the Indigenous question could be resolved as well, without the colonial symbols. But do you think that’s a pathway forward for it? Or is it, again, these are all sort of … you know …

 

Gillian Triggs: I don’t really. Not anymore. I think there was a time when we could have got close to it, and that would have been the wonderful springboard for sort of modern Australia. But that moment’s lost now, I’m afraid. I think the republican movement’s going nowhere. It’s going backwards, from what I can gather, and that’s not happening. So, I think, with the extraordinary popularity of the Royal Family at the moment, and the weddings, and the visits, it … I think, Australians, it’s way down their list of priorities. I suspect that if we had strong political leadership, again, at a bipartisan basis, I think you could probably get it across the line, but there’s no political will to do it.

 

Misha Zelinsky: It’s tricky. I mean, we just had two Prime … well, we had a Prime Minister, up until recently, and an opposition leader who were both republicans. We had the Prime Minister who led the republican movement in 1999, and unfortunately, couldn’t get there, even within that. And now, obviously, a whole heap of issues on the … that I won’t delve into, with the Turnbull government. I mean, he had capacity to make those decisions, but it doesn’t fill you with confidence when you notionally have bipartisan leadership, without that-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: … without that outcome.

 

Gillian Triggs: Well, I was in Parliament when we did have bipartisan leadership, with Julia Gillard as Prime Minister, and Tony Abbot as Leader of the Opposition. And they passed the legislation, it was about five years ago now, for a process, and it was a very exciting day in Parliament. I was there with a … some people from the Human Rights Commission, and I really thought, now, for the first time, we’re going to get somewhere on Indigenous recognition. And five years later, it’s fallen into yet another black hole. It’s going nowhere. It’s disappeared completely. Now, it may be … and that’s why I’m an optimist about these things. It may be that we’ll get a change of government in three months, and I think with … over the turn of that government-

 

Misha Zelinsky: I’m touching wood on that, for the tape.

 

Gillian Triggs: … I think … That’s right. I think there’s a chance that the Labor Party would bring these matters back and progress them. But the difficulty is always going to be that there’s not going to be bipartisan support.

 

Misha Zelinsky: And that’s the bit that worries me. I mean, I think Labor has good policies in this area, but the history has shown that, even when Labor’s been in government, with referenda, that they’ve failed.

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: So, I mean, just to bring us back to Australia in a … maybe a discourse, you sort of touched on, you know, maybe once upon a time we could’ve got some of these things done, and you know, Wayne Swan gave his valedictory speech the other day and he talked about the Tampa crisis, how it changed everything, in 2001. I mean, do you see that? Do you agree that that was a pivot point in Australia’s discourse?

 

Gillian Triggs: I do. Although I’d add to that. If you look at the timing, it was really fascinating. Earlier in the year, we had the Howard blatant lie that asylum seekers, Muslims, were throwing their children overboard. Now, a year or so later, a Senate inquiry said there was not a scintilla of evidence to support that, and the government, and government officials, had falsified photographs to pretend that that … to support the argument. There was a really pretty disgraceful moment, but the problem was that, some months later, we had the so-called Tampa crisis, a really confected crisis, and then within weeks of that, we had the 9/11.

 

So, that what you … In that momentous year, you had asylum seekers arriving without visas by boat, you had … and you had international terrorism against the Pentagon and the World … the Twin Towers. And what the Howard government did, and governments did around the world, was conflate these issues, and that you’ve got asylum seekers, who are Muslims, who are terrorist, and that’s how the logic progressed. And that has been very, very, very difficult to dislodge in the public mind.

 

If you could trace the beginning of the decline of Australia’s role as a good international human rights system, that was the year. And Howard then abused the power, and used power as a vehicle for getting through laws that are more draconian than we’ve ever had in the past. For example, we had no counter-terrorism laws at all at 2001. We’re now one of the most, if not the most, heavily legislated country for counter-terrorism laws, that every so many weeks or months, we get more counter-terrorism laws, that become more and more draconian as the time goes by. [crosstalk]-

 

Misha Zelinsky: Things such as data retention laws?

 

Gillian Triggs: Well, the data retention laws, dealing with, obviously, sort of picking up things that might be relevant to spying, but also, the prevention orders, and control orders, the periods of time people can be held for questioning [crosstalk]-

 

Misha Zelinsky: Without a lawyer?

 

Gillian Triggs: Without a lawyer. Without going before a court-

 

Misha Zelinsky: And it can’t be reported on, either.

 

Gillian Triggs: And they can’t report on it. The draconian penalties for those who have reported on surveillance operations by … or any operations by the security agencies, whereas the officers of the security agencies have total immunity from the jurisdiction. No one can … They can never be sued for anything they do, right or wrong. And so, we’ve had an extraordinarily disproportionate range of laws introduced, based upon this notion of fear that the government has promoted, without very much evidence.

 

And if you look at, by way of comparison, more than one woman a week is killed by her partner, or former partner, in domestic violence in Australia. Some of that being particularly, or much higher, in the Indigenous communities, and remote and rural communities. The government announces 78 million to support domestic violence refuges and accomodation for women. Well, you know, in the same time, we’ve paid, or will be paying, 50 billion dollars a year for more submarines, and for funding of offshore detention centers, and expanding the powers of the Ministry for Home Affairs, and Mr. Dutton. I’m not saying we don’t have submarines. I’m not saying we shouldn’t support national security, but I am saying that there’s such a gross disproportionality, that this has been made possible because of the politics of fear.

 

Misha Zelinsky: It’s interesting, politics of fear, because what’s your take on this question of secure borders and sovereignty? Because I think that’s something now that … we look at the Brexit example, when you look at the way populist extremists are arising, in Europe in particular, and when you look at, you know,~ the Hungarian example, particular, Polish, how do you deal with being secure but humane?

 

Gillian Triggs: Well, I think it’s possible. In other words, there’s the Abbott government, in particular, adopted very successful slogans that, in effect, you have to have offshore processing, and all of the other aspects of asylum seeker policy, to stop the boats and save the drownings at sea. In other words, he conflated the two. It’s a false binary. My argument, and that of many others, of course, is that you can both stop the boats, stop the people smuggling, stop people arriving by sea without visas, and take a humane approach to those who actually come to Australia. That’s the bit of the argument that’s proved so hard to convince people about.

 

But one of the reasons is that I don’t think the Australian public realizes the sort of steel cordon sanitaire of shipping that’s up there on the north-west of Australia, that literally stops the boats coming through. Stopping the boats has not been done because we’re cruel to children and their families on Nauru. There’s no evidence to suggest that at all. But that is the public perception, because governments have seen it in their interests to conflate the two. So that we now have people in detention for nearly seven years, without charge or trial, contrary to the fundamental principles of the Magna Carta, let alone anything more recent. You don’t have to go past the Magna Carta. But Australia has … our government, at least, has completely disregarded those standards.

 

Misha Zelinsky: So, what’s the role of language here? Because one of the things that, you know, is … You’ve talked about how to be humane and it’s also … There’s an element of dehumanization in the language used. Do you think that’s an important part of this? In the way that, you know, the fear of the other, and the fear of people that are coming by armada, as Abbott said. Do you think the-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: … dehumanizing use of language, of boat people, in a … I mean-

 

Gillian Triggs: Yes, that right, and illegals. Yes. Oh, it’s-

 

Misha Zelinsky: Illegal immigrants, you know-

 

Gillian Triggs: … it’s absolutely crucial. This is the world we’re in, of global media, and the snappy phrase, and the slogan. So, people Make America Great Again, and Save Our Children, and Save Our National Borders. I mean, this is how today’s politician speaks. There’s no depth to it, there’s no analysis, there’s no nuance. It’s absolutely crystal clear for a massive voting public that actually doesn’t want to get much involved in politics, in any event, so it’s … it’s been a brilliant marketing exercise, if you like. It’s no accident, of course, that our current Prime Minister is a marketing man. I mean, this is what they do. They conjure up these slogans.

 

The trouble is that the slogans are very often straight out lies, or creating binaries that don’t exist, they’re false binaries. Or they are deliberately obfuscating the real issues. Language has always been important, I’m not suggesting it hasn’t, but in recent years, particularly in Australia, the use of the slogans has really stopped people thinking. They’re very, very dangerous, and I certainly encourage anybody to look behind the slogans and say what’s there.

 

One that I’ve been working on recently, for example, is the Zero Tolerance in sexual assault and harassment. Now, you know, from … I’ve just finished a report for the United Nations on this question, and leaders of, even of United Nations bodies, seem to think that all you’ve got to do is come up with a slogan, ‘We have zero tolerance for sexual harassment in the workplace,’ and it’s fixed. But of course, it isn’t. It’s just a slogan, and it means nothing unless you put money, and programs, and cultural change, and all sorts of things behind the slogan. Only then do you start to actually get anywhere. But the harsh reality is that this is the global media environment we live in.

 

Misha Zelinsky: It’s very challenging, and then the media tends to reward the snappy phrase, and-

 

Gillian Triggs: Oh, they love it.

 

Misha Zelinsky: … they’re the things that cut through-

 

Gillian Triggs: They just love it.

 

Misha Zelinsky: … and, despite the fact that they tut-tut about slogans, they like to report on them.

 

Gillian Triggs: [crosstalk] they report on them all the time. They do it all the time, and they love the … you know, if you … for … Just by way of personal example, I’ve been talking a lot recently about … for the International Women’s Day, and I use the phrase, you know, that we’ve got to disrupt, and we’ve got to stand up, and I’ve used the word, and we’ve even got to be more vulgar. Now, the word ‘vulgar’ isn’t used very much in contemporary parlance. The media picked up on it, and suddenly all my speeches are about being vulgar.

 

But that’s what they do, and in the end, you learn to use a word deliberately, because you know that’s the word that’s going to be picked up. I can write a 50 minute speech of … you know, a really considered, calm piece. they’ll pick one word up, and you know the word they’re going to pick up. You know what they’re going to do.

 

Misha Zelinsky: Well, if you know, I suppose you can use it to your advantage.

 

Gillian Triggs: Well, exactly. Once you’ve realized how to do it, then you realize that that’s what … It’s a deliberate decision, and then, in other words, you don’t fall into the trap. You know exactly what you’re doing.

 

Misha Zelinsky: Now, you sort of talked … which, going right back to the beginning, we talked a little bit about checks and balances on government, and in the absence of a bill of rights here, or a charter of rights, that we rely on our court system, our parliaments, but … and our civil societies, but you know, what’s the role of individuals? You were a Human Rights Commissioner. You very famously stood up to the Government. Can you tell us a little bit about the pressure that comes to bear from the executive, on someone speaking out against government policy?

 

Gillian Triggs: Well, as I think Australia saw, it’s huge pressure, but I had the remarkable protection of the statue of the Australian Human Rights Commission, which meant that I couldn’t be sacked by the government, unless I’ve committed a criminal act, or was bankrupt, and as I was neither at that time, still aren’t, then there was nothing they could do about it. And the government was really … and the Murdoch press was absolutely beside themselves, because they realized they were absolutely powerless, unless they could find something that would damn me, in terms of the statute, which they didn’t.

 

But I think your point about the individual is quite an important one, because I certainly would never have put myself forward for this role, but you find yourself in it, and in the end, you just accept the challenge, or you don’t. I felt that the laws that were being breached were so important to a working democracy that I couldn’t really back away from it, and so I just stood firm. But I didn’t see myself as being any kind of hero for doing this. I very much saw myself as acting as a lawyer would, in that situation, because I was saying, “This is the law. These are the facts. This is the outcome.” It was simple.

 

But I have come to see that people are moved by stories, and moved by individual stories, and an institution could put the arguments I was putting, but it wouldn’t have quite the same effect as an individual. And in a way, the government drew attention to me, and that then gave me a vehicle for speaking up about the things that I thought were important as President. So, I suppose the lesson to be learned is, one should never underestimate the power of the individual, because it can be very, very effective.

 

Misha Zelinsky: But, you know, how do you stand up in … without the … would you have been able to stand up the way that you had, without all those safeguards around you?

 

Gillian Triggs: No, I would have been out of there in an hour. I couldn’t have stopped it. But because the law protected me, the statute protected me, and the community, to a very high degree, in a more subtle way. But no, without those protections, I would have been gone instantly.

 

Misha Zelinsky: That’s a really … It’s a profound point because you know … And they’re the safeguards that are gradually being eroded right … as we’ve sort of discussed.

 

Gillian Triggs: That’s right. That’s right. Exactly. Yes, exactly, I mean, and that’s … You know, I wouldn’t be surprised that a future conservative government, which we’re probably not going to get for a while, but I wouldn’t be at all surprised, if they had the numbers, they would amend the statute to ensure that doesn’t happen, in other words, that if they don’t like a president they can get rid of them.

 

Misha Zelinsky: Sounds like an argument for a charter of rights maybe, but …

 

Gillian Triggs: Well, that’s another … it’s another point. Exactly.

 

Misha Zelinsky: Now, so, we’ve sort of touched on gender as we’ve gone along. I kind of want to come back to the point about the advanced democracies, and the rest of the world. Sorry, just for the tape here, we’re pulling down the blinds. You’ve said that, basically, perhaps against discourse, or, like, against the narrative, that gender rights are on the decline, which is a surprise to me. Can you talk about that a little bit? Perhaps in a global sense but also in Australia?

 

Gillian Triggs: Well, if we go to Australia first, I’ve been surprised myself, and I’ve … over the … I’ve not done a lot of gender equality work, as President of the Commission, because we had a sex discrimination commissioner, and so, really, I would leave that side of the work to, at that time, Elizabeth Broderick. But since leaving the Commission, I’m asked to speak a lot on the subject, so I’ve been trying to keep myself up to date. And I use, as my benchmark, and it’s a very good one, the World Economic Forum’s Gender index, and that, not at all surprisingly, lists Australian women as number one in the world for educational attainment, along with the usual suspects of Finland and Denmark, I think.

 

But then, when you look at the other indices measured by the world economic forum, health, labor force participation, and economic empowerment, and political engagement, Australia is woefully behind, and we’ve slipped from a global assessment of us at 15th in the world in 2006, to 46th a couple of years ago.

 

Misha Zelinsky: 46th?

 

Gillian Triggs: Yes, and we’ve risen to 39th, but we are well outside the usual zone of countries that we will compare ourselves with. So, for example, on health, we’re ranked at 103rd.

 

Misha Zelinsky: 103rd for women’s health? Wow.

 

Gillian Triggs: Yes. For women’s health. We’re ranked at 46 for economic empowerment, and about 45 for political empowerment. We’re 77th in the world for ministerial appointments.

 

Misha Zelinsky: What do you put that … That’s startling, and I can’t sort of … As an economist, I’m trying to put together that data. First in the world for education-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: … which I think, it’s outstanding achievement, so-

 

Gillian Triggs: But way down on all the others, and then that … when you come together, it creates a mean of 39, I think is how it works, but … and you can criticize methodology, [crosstalk]-

 

Misha Zelinsky: Oh, sure. But nevertheless, I’m sure there’s-

 

Gillian Triggs: … but the figures are so powerful that you can’t dismiss the trend.

 

Misha Zelinsky: So, then what are we getting wrong in public policy? Because the kind of standard thinking is, if you get people educated they should be able to get jobs, and they should be able to get a higher income and-

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: So, what’s going wrong?

 

Gillian Triggs: Well that’s the great disappointment for me, because when I did my law degree in the 60s, I thought, “Education will unlock this world for women, and it will be fine once they’re educated.” The truth is that higher educational attainment for women, it’s higher than for men, has not unlocked the door for me, or not fully. One of the biggest problems, I think, and it’s shown by the statistics, is … two things, one is lack of political empowerment, and we’ve seen that in the governments that have been in, in the last few years, particularly. Obviously, the Liberal Coalition, with so few women, is a real problem for the Liberal Party, but whereas the Labor Party’s adopted quotas in the 90s and they’ve got … they’re in an entirely different position.

 

But the other, that we’re all concentrating on now, much more than we ever have done, is the deleterious effect on women of a workplace of sexual harassment and bullying. And that is more of a systemic problem than I think we’ve realized, until the last few years, and now it seems that the evidence is very, very clear.

 

The other problem that I think needs to be addressed is that women do two thirds of the caring, unpaid, in Australia, and it’s true throughout the world, so that a lot of women’s time is spent on, essentially, caring roles, for which they’re never paid. The other is that women tend to be squeezed into fractional, flexible contracts, casualization of work, they’re way … in ways that men are not, to the same degree. The end result is that, in Australia, women retire on 46 percent of the male superannuation.

 

Misha Zelinsky: Yeah, that’s a huge challenge.

 

Gillian Triggs: That’s a very, very big gap, and, just to illustrate what happens when women don’t have superannuation, is that the fastest growing category of homelessness in Australia is women over 55. In other words, they are not able, if, once they’re running out of work options, and women over 55 find it very hard to get work, except in some areas, like hospital cleaners, factory cleaning, basic factory work.

 

Misha Zelinsky: Which is all very lowly paid.

 

Gillian Triggs: That’s right, very low paid, casual, subject to the employer’s needs, in particular, time. It’s nothing they could … couldn’t get a mortgage on it. They can’t pay the rent after 55. They lose their partners, sometimes. Their children have grown up and gone away, and they’re sofa surfing. They’re ringing their sons up, saying, “Can I stay on the sofa for a few weeks?” But others are living in cars. And we know, from the group that I chair, Justice Connect, just how many people. They’re in a really powerless position, and many of them women.

 

Misha Zelinsky: Homelessness for women is very hidden, as well, because of the domestic violence questions associated with it as well, and fleeing from domestic violence.

 

Gillian Triggs: That’s right.

 

Misha Zelinsky: But it’s not always … People tend to think of homelessness … I mean, my experience of the issue, as rough sleeping, which is not necessarily the case, is that … and maybe, could you explain that a little bit?

 

Gillian Triggs: That right. That’s right. Well, I think we think of a homeless person as being an 18 year old sleeping under a bridge somewhere, or some of the people that are in the shopping malls, with blankets, and the dog, often quite young. Not always, but often. We don’t realize that the homelessness that we can’t see is far more troubling, in some respects, and people are shameful. They live in their cars. They find shacks on the beach. I mean, they do extraordinary things to hide their situation, to try to survive, and then they become subject to crime, or commit crimes themselves. But it creates a downward spiral.

 

Misha Zelinsky: So, how do we fix some of these issues? I mean, you … Just going … pulling apart some of those figures, the health one jumped out of me, but also the ministerial one, at 77, and you know, you talk about quotas. Is that the way that we need to address? Do we address it through hard legislative sort of rules? Or is it about cultural shifts? Or what’s the way to do it? Or both?

 

Gillian Triggs: Well, both. Both. There never is a single answer to these things, just as education proved not to be the single answer. I think we need quotas. It’s worked for the Labor Party. It can work for the Liberals. [crosstalk] encourage-

 

Misha Zelinsky: And would you want to see it in the corporate sector, for example? I mean is that a way to break up that-

 

Gillian Triggs: Well, I’d like to see them with serious targets, for which directors of companies are accountable. At the end of the year, in other words, there’s a checklist, “Did you achieve these targets across the company? If not, why not? And what are you going to do next year?” And also, what’s the accountability mechanism? Because there’s almost no accountability for failing to meet a target, and that’s the point of targets, they’re voluntary, and people-

 

Misha Zelinsky: If they’re linked to bonuses they might happen, but …

 

Gillian Triggs: Well, we’ve just seen, I gather, the salaries of the major banks going down by a significant amount. I think maybe there should be consequences, that … If you gave it a monetary value, and that’s the society we live in, give it a monetary value, there’s every chance you’ll get an outcome. It’s a pretty tough way of doing it, but they’ve had long enough to do it. It’s not as though they haven’t had the time to do it. I think these tougher solutions really have to be made.

 

I think also, frankly, that we need many more programs to support families, so that women aren’t subject to domestic violence in the same way. We need much more workplace cultural change. Now, cultural change is easy to say, and extremely … it’s much easier to have a quota or an accountability mechanism. It’s very, very difficult to change cultures. But I think you need huge leadership from within the organizations, and often those in charge aren’t that passionate about it. What they do is, they establish a working group, and they leave it over there somewhere, in the working group reports, but that’s really not their concern. They’re not there to manage that problem. But I think that, now, we’re going to have to put things like the workplace environment front and center.

 

But I also think we need to look at this superannuation problem, and I think when a woman is leaving … or a man, for that matter, is leaving full-time work for caring for children, or caring for an older parent, or somebody close to them, then I think the employer and government should ensure that their superannuation payments continue at the same level. And then you won’t get these huge gaps. They come back into the workforce, but they haven’t missed out on their superannuation.

 

Misha Zelinsky: And it’s a very important thing, because super compounds over a lifetime-

 

Gillian Triggs: Exactly.

 

Misha Zelinsky: … so losing those earnings isn’t just their contribution, it’s the compounding effect.

 

Gillian Triggs: Yes, I think the American financial gurus say, “Never forget the power of compound interest.”

 

Misha Zelinsky: It’s the eighth wonder of the world, they call it, yeah, that’s right.

 

Gillian Triggs: That’s right. I can see that, it’s a wonderful thing.

 

Misha Zelinsky: Indeed.

 

Gillian Triggs: Once you’ve worked out what it does, compound interest is very, very nice. But that’s been the tragedy for women. And some men too, I mean, this is not only a male, female thing. You don’t want to position women against men, in any sense, it’s just that, because women tend to do the caring, they’re not paid for it, they lose salary, they lose their position with superannuation payments, they lose their promotional opportunities within a firm, and then they just slide back. And then … if their husband or partner dies, or they go off with a new model, these women are left to fend for themselves.

 

Misha Zelinsky: Well, it’s been a very serious conversation. I’ve been looking for a way to segue into my hokey question at the end here, but unfortunately I’m going to have make it a really clunky segue. But you know, I’ll always ask everyone on the show, if you’re an Aussie, who are the foreigners you’d like to bring along to a barbecue. In your case, who would you like to bring to a barbecue at the Triggs house? You know, three people.

 

Gillian Triggs: I’d really like to meet Theresa May. I think she’s dealing with one of the most intractable and difficult problems. I’d love to sit down and talk to her about what she’s proposing, and how she thinks she’s going to pull Britain through this.

 

Misha Zelinsky: She might have a bit more time in about three weeks.

 

Gillian Triggs: They might be extending it. There you go, they’re going to have to. But I think she’s … She seems to be emerging as quite a remarkable woman. So, I’m rather … I’d love to meet her.

 

Misha Zelinsky: Hard job.

 

Gillian Triggs: Mm-hmm (affirmative). Very, very tough job, the toughest job that one can think of just at the moment, and she seems to be pretty resilient, and she’s not very flexible, but she might have to be in the next few weeks.

 

Misha Zelinsky: So, Theresa May. Was there anyone else that you would bring along? To the …

 

Gillian Triggs: Oh. Nothing … Nobody … I’m sorry, this is a terribly boring answer, but I really can’t think. I’d love to have known Maria Callas.

 

Misha Zelinsky: Okay. Right.

 

Gillian Triggs: Because I love opera, and I think she was, again, quite … a quite remarkable woman. And I think I’d love to meet Obama.

 

Misha Zelinsky: Oh, okay, well …

 

Gillian Triggs: And Michelle [crosstalk].

 

Misha Zelinsky: Well, there you go. A couple of politicians. Well, I’ll let you have four, and why not?

 

Gillian Triggs: You’ll let me have four.

 

Misha Zelinsky: Why not? They’re a package deal, and a just actually read Michelle’s book. It was a fantastic book.

 

Gillian Triggs: Oh, I haven’t read it yet. I must read it.

 

Misha Zelinsky: Oh, well. Anyway. Well, thank you so much for joining the pod. It’s been a fantastic chat, and really appreciate it, and good luck with everything that you’re doing.

 

Gillian Triggs: Thank you very much.