On Newshub Nation: John-Michael Swannix interviews former president of Australia's Human Rights Commission, Gillian Triggs

• The former president of Australia’s Human Rights Commission Gillian Triggs says deportations have risen dramatically in Australia since 2014 when ministers and ministerial delegates were given the power to cancel visas - and half of those being deported are New Zealanders. "These are massive numbers, actually escalating dramatically."

• Gillian Triggs agrees with Andrew Little's statement that these deportations lack humanitarian ideals. She says they are "deeply humane" and "a breach of international law".

• She says the impact of Australia's deportation policy is "profoundly discriminatory and racist" with 60 per cent of New Zealanders being deported being Maori and Pacific Islanders.

• At a visit to Villawood Detention Centre near Sydney she discovered most detainees were Maori or Pacific Islanders. "I saw six men to a bunk room, cramped quarters and in a concrete compound with 14 foot wire walls. They were quite literally like caged animals."

• She says laws such as "asylum seeker laws, counter-terrorism laws, anti-bikie association laws" are being passed in Australia without being checked by the courts - and if Australia adopted a charter of human rights, similar to New Zealand, it would "have an impact on the way in which civil servants, government officials, law makers apply laws".

• She says freedom of speech is not absolute. ‘We need that line in the sand...You can pass a line that becomes racist and unacceptable in the public arena."

Justice Minister Andrew Little recently sparked a war of words with Australia’s immigration minister when he criticised the detention and deportation of kiwis there. Now the former president of Australia’s Human Rights Commission has backed him up - saying the policy is illegal and inhumane. Professor Gillian Triggs is no stranger to controversy - regularly criticised by politicians during her at the commission for her views on the treatment of asylum seekers. Reporter John-Michael Swannix asked her how Australia got to this point with its deportation laws.

Gillian Triggs: Well, we had an amendment of the migration act in 2014 — late in 2014 — and since that time, the minister and ministerial delegates in the department have had the power to cancel visas for non-citizens at the minister’s discretion on character grounds as well as on the grounds of having committed criminal offences that add up to 12 months. And what we see and what we’ve seen over the last few years, from an average of about 80-something visa cancellations a year from people across the globe, we’ve not got something like 1300 — massive numbers, actually escalating dramatically, where 50 per cent of those deportations are now New Zealanders. So it’s happened very quickly, and I think was really a quite clear policy of the government to give the minister this really extraordinary discretion — executive discretion without supervision by the courts.

John-Michael Swannix: Our Justice Minister Andrew Little says deportation laws ‘lack humanitarian ideals’. Is he right?

I believe he is. One of the particularly troubling aspects of this visa cancellation process has been that people who’ve lived for many, many years, in fact, most of their lives in Australia, are having their visas cancelled and then deported to New Zealand and separated from their partners and children who have Australian citizenship. And I think that that is a breach of international law — indeed, the Human Rights Committee in Geneva has already determined in similar deportation cases that this is a breach of international law. But putting it more broadly, as your Minister Little has done, I think one does respond by saying this is deeply inhumane, particularly when it affects youths.

Does Australia need a charter of human rights? Would that go some way to solving this problem?

Well, it could do. The reality is that Australia’s the only democracy in the world that does not have a charter, and there are very, very few protections for common-law freedoms in the constitution. And that has meant that across the field of asylum seeker laws, counter-terrorism laws, anti-bikie association laws, all of these laws are going through, many of them dependent on ministerial discretions that are not being checked by the courts. If we had a charter of rights, broadly along the lines that you’ve adopted here in New Zealand, there would be a better opportunity for the courts to benchmark and to assess whether or not these laws comply with fundamental common-law freedoms articulated in a charter. So I think - I can’t predict in the future just which way a court will go and how they would interpret these rights - but I think we could say it’s highly probable that they would question the mandatory detention of New Zealanders and other non-citizens without charge or trial. The judges don’t deal with these cases. That would very likely be one that were the court to have a charter, they would be inclined to say, ‘These are in breach of law.’

Why a charter rather than a constitutional amendment?

Well, just by way of illustration, it’s been proved impossible to get proper constitutional recognition of our indigenous peoples, and we still have a race clause in the constitution, which would allow negative legislation against our indigenous peoples. So if we can’t get reform in that area, the chance of getting a constitutionally entrenched bill of rights is very, very little, very, very low, and certainly I wouldn’t expect to see it for many, many years. But a legislated charter along the lines that you have in New Zealand would be much more achievable. Now, they’re weak; they’re not particularly strong, but they do have an impact on the way in which civil servants, government officials, law makers apply laws. They are inclined to say, ‘We’ve got a charter. Does this law comply with that charter? Or what we’re proposing, does it comply with common-law freedoms?’ And I think that that’s the impact it has on the lives of ordinary people.

Let’s turn to your time as President of the Human Rights Commission. You said your visit to the Villawood Detention Centre in Sydney was one of the most distressing of your tenure. Why is that?

Initially, I suppose, I have to say the most distressing of everything I’ve seen is hundreds of children held on Christmas Island for more than a year, with no education, in appalling physical and mental state. So I was pretty hardened to just what goes on in these detention centres. But Blaxland, which is the high-security detention facility at the Villawood prison, about an hour out of Sydney, was the one that particularly shocked me, because when I went into that part of the prison to see the immigration detainees, I was very surprised at that stage to realise that most were New Zealanders and most, in fact, were Maori or Islanders. And I saw six men to a bunk room, cramped quarters and in a concrete compound with 14 foot wire walls. They were quite literally like caged animals. Big, strong men, some of them with mental illness, clearly deeply distressed, with virtually nothing to do, except I think there was a billiard table and a television set. But they were distraught beyond measure and with virtually no hope for their futures. All done — and I would say this as a lawyer, but it’s critical — all without a charge or trial by a court or jury.

Sixty per cent of deportees back to New Zealand are Maori or Pasifika from Australia. Is there institutional racism at play here?

Well, I’d hesitate to go quite that far. I don’t believe that it’s intended to have a racist purpose, but there’s no doubt at all that not only what I saw, but from my research in relation to the publicly available facts, the impact of this deportation policy is profoundly discriminatory and racist. 50 per cent of detainees from Australia are New Zealanders, and 60 per cent of those are Maori and Pacific Islanders.

So, if Labor wins the election next year in Australia, do you believe that these policies will change?

I think that the Labor Party, were it to win, would be extremely cautious before it significantly alters any aspects of asylum seeker refugee policy or this deportation policy. I would imagine that Labor would quite quietly go about getting a more rule-of-law-based process and ensure that when a minister exercises a discretion to cancel a visa, that would be done according to a proper rule of law judicial process. But I can only hope that will be the case with regard to New Zealand. This is a situation that really is best, and probably will be, resolved diplomatically. You have a new, and I think open-minded prime minister. If we were to have a change of government, I think it would be much more possible for those two prime ministers and their respective officials to negotiate a more humane outcome for New Zealanders being deported in a way that most particularly respects their families and respects the fact that they’ve been long-term residents in Australia and should be accorded a more rule-of-law-based, humane approach.

What gives you hope that things will change?

Well, I think we’ve been in a dark place in Australia for the last few years. We’ve adopted a really inhumane and illegal policy in relation to non-citizens, most particularly those arriving without a visa by sea. But that has trickled down, if you like, to this rather inhumane policy in relation to New Zealanders. I don’t think Australians have ever been concerned about this. We have freedom of movement through our close economic relations with New Zealand. I think Australians are enormously fond of New Zealanders, and there’s never been, to my knowledge, any sense that we had to deport them in the numbers that we’re currently deporting. So I do have hope for the future, because this is not Australian; it’s not the values that we have espoused and developed in what is a multicultural and relatively successful migrant nation. I think the ship will right itself, but in the meantime, a great deal of harm is being done.

Let’s turn to free speech. That’s been a hot topic of debate here in New Zealand over the past few weeks. You won a freedom of speech award last year for speaking truth to power. Is free speech an absolute right?

Definitely not. And that is the point that perhaps people don’t always understand. There is a right to freedom of speech as a constitutional matter, and in many countries, as a matter of common law and protected by legislation. I’d have to say it’s been one of the biggest views of my presidency of the Human Rights Commission being a provision in the racial discrimination act that prohibits offending, insulting, intimidating and humiliating somebody because of their race in the public arena. And that’s been very controversial, despite attempts by two prime ministers and one attorney general. The multicultural community in Australia rose up as one — the Jews, the Muslims, the Vietnamese, the Confucians, the Quakers all rose up and said, ‘We need that line in the sand.’ Freedom of speech is not absolute. You can pass a line that becomes racist and unacceptable in the public arena. Now, you can say what you like in the privacy of your own home, you can think what you like, but in the public arena, public transport, in your factory, workplace, in a hospital waiting room, you may not abuse somebody else because of their race. And Australia’s held on to that limitation on the right to freedom of speech. There are exceptions, and exceptions lie for journalism, for political debate and for good faith, factually based debate.

Transcript provided by Able. www.able.co.nz

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