Kill Your Darlings’ First Book Club pick for October is Speaking Up by Gillian Triggs (Melbourne University Press), a passionate memoir and an irresistible call to everyone who yearns for a fairer world. Read an extract from the book, and Ellen Cregan’s review in this month’s Books Roundup. Ahead of appearances at last week’s Ubud Writers & Readers Festival, Triggs spoke to Chris Saliba about the book, Australia’s political climate and how our country is lagging on the world stage in regard to human rights.
KYD: Speaking Up discusses at length a range of human rights issues that you care deeply about, everything from the treatment of asylum seekers right through to marriage equality. The book also goes into your time as the President of the Human Rights Commission and some of the hostility you experienced in your role, especially from certain sections of the media and politics. Surprisingly, though, there’s no anger or injured pride in your book. Did you make a conscious decision to keep any ill feelings out of the book, or were you simply over it?
Gillian Triggs: As a matter of fact, I did make a conscious decision – I felt that I had an important message, which is essentially about the failure of Australian law to protect human rights. If I emphasised what the Attorney said in the corridors of power, or the trauma of Senate estimates, and being offered a job and persuaded to leave, et cetera – if I had concentrated on that, which I know that many readers would have perhaps been looking for, I would have lost the emphasis on my primary message. It’s interesting now, 15 months after I finished my appointment – that sort of scurrilous stuff disappears. You actually are able to stand back and say, what was this really all about, and what do I really care about?
How traumatic was it at the time?
When you have been a professional lawyer for 50 years without attracting much attention, suddenly you are being accused of all sorts of things, and the Prime Minister says he has no confidence in Gillian Triggs, that is a pretty terrifying thing. Much less terrifying of course was the attacks from the Australian – in the end I think I got 41 cartoons – that wasn’t such a problem, because you knew where the Australian was coming from, and you knew there was never any way that you could persuade them from a sort of ideological view. But to have senior government leaders – including ones that I had known for a very long time – turn on you because you are essentially arguing for a position of international law, was very, very distressing.
But at the same time, I was in the middle of a job. It’s quite calm in the eye of the storm. There was so much to do, and when you’re in the middle of it you are not really paralysed by it, you just keep doing the job. It is only later, when you are digging in the vegetable garden that the full impact hits you, and you wonder how you ever got through it.
‘To have senior government leaders turn on you because you are arguing for a position of international law was very, very distressing.’
There is a bit of the book I recall, I think it is in the Senate Estimates, when you are in the thick of it, and you describe it as suddenly realising that it wasn’t really about you at all, it was all about the theatre of politics.
Yes, I think once the penny dropped – that frankly, it was really nothing to do with me; it was to do with using me as a conduit for one senator to attack another, one party to attack another. But also, that anyone in my position would have to have picked up the issue of asylum seekers, refugees, juvenile Indigenous people in detention, or the Racial Discrimination Act section 18C provision – anyone in my position would have had to have picked up those issues and supported the human rights law approach, as required under the statute. So I think once that realisation really became clear for me, I became much less concerned about it – I am doing my job, it’s touching a raw nerve for the government, but I’ve just got to get on with it.
It’s interesting that in the book you call yourself a ‘conservative’ lawyer, yet you came in for much attack from so-called conservative politicians. How has the idea of ‘conservatism’ changed over the decades you’ve been practising law?
The reality is that the language we use now has a different meaning. By ‘conservative’ I mean somebody who believes in proper process and the rule of law, in stability and having evidence before you change law and policies. That I see as an essentially conservative position. But a ‘conservative’ as described today is in fact quite a hard-right person, frankly quite often racist, certainly misogynist. And really somebody who is ideologically committed to a particular view, regardless of the facts or evidence. And I would see that as really, I wouldn’t grace it with the word conservative, frankly. I think it is a sort of Luddite, retroactive and ultimately hard right-wing position.
If you had your time over again, with everything you’ve learnt, is there anything you would have done differently?
I think would have been more out-there than I was, if I had my time again. I think I tried to be behind-the-scenes, as anyone in my position would do, and I spent far too long trying to work behind-the-scenes. And now given the way the facts emerged – for example, I had already reported two years before on the use of steel restraint chairs and hooding of Aboriginal children in detention. And that report we submitted, it was tabled in Parliament, it was completely ignored. It took two years later for the Four Corners report and the CCTV footage to show just how bad this was. On reflection, I wish now that I had stood up more at the time and said ‘you really cannot ignore our report.’ Knowing what I now know and knowing the depth of the problem as I do now, I think I would have been more vocal in the public arena than I was.
An overarching theme of Speaking Up is how the laws set by our parliaments are increasingly inconsistent with the rights that Australians have inherited from the common law. For example, the Federal Parliament has laws that allows asylum seekers to be detained indefinitely, and yet the Magna Carta prohibits imprisonment without charge. Many Australians probably don’t know how their basic human rights are protected, and where they could be at risk from overzealous governments. Why do you think there’s such a general lack of knowledge about our human rights and how they are safely maintained?
This is why I make the point in the book that Australia is exceptionalist, if not unique, in that we are the only democracy in the world without a Charter of Rights. We are also very poorly educated as a nation about what we used to call ‘civics’. Very few Australians understand our Constitution, very few understand the underlying common law principles developed by our judges over centuries. The tragedy for Australia has been that we have a fairly boring Constitution – it is essentially a functional document that sets out the respective rights of the Commonwealth and the states. It was designed for a very particular reason, for political reasons, to bring states together into the Commonwealth of Australia. But it did not have the sort of inspirational foundations that the American Constitution or the French Constitution have. It is difficult to teach, it is boring for school students, and nobody has really much bothered with it. So it has just been an accumulation of complacency in a way, over many decades.
‘The tragedy for Australia is that we have a fairly boring Constitution… It is difficult to teach, boring for school students, and nobody has really much bothered with it.’
And now we find ourselves in this exceptionalist position, with deep ideological objections to human rights, and the Coalition having part of its policy to abolish the Human Rights Commission, let alone ever enact a charter. So we are well behind on global standards in these areas.
You also write that we have a ‘double vision’ when it comes to Australian law and the international treaties we are a party to. Several of the international human rights treaties we have signed up to can’t be directly implemented by our own courts. How did we get ourselves into such a contradictory position?
It’s quite common for common law democracies to have a position where you send off your diplomats to negotiate a treaty in Geneva or New York, you have the flashbulbs and photographs and red carpets and they sign up to a treaty, like a free-trade agreement. But those treaties must be brought into domestic law by an Act of Parliament. Most countries make a commitment that they will then introduce the international agreement into domestic law. But what has happened in Australia, partly because of the complications of our federal system, we have never done that. We do it in some cases, but we haven’t in the area of human rights. So we have gone off around the world negotiating the Convention on the Rights of the Child, the Torture Convention, the International Covenant on Civil and Political Rights and the Refugee Convention, but we haven’t given them domestic implementation. I think that is partly lack of political will in Canberra to do it – they like to have the accolades of doing this in the international environment, but they would not face the complexities of getting political support for doing it in Parliament in Canberra.
In Speaking Up, it’s clear that you’ve given a lot of thought over a long period of time to the issues you discuss. Was this an easy book to write, or did your thinking change and develop during the writing process?
I was in a way dreading writing the book, because I have only ever written academic books where just about every sentence has a footnote, and you have bibliographies, and it is meticulous legal work where everything has got to be researched and very carefully described. So I was really not looking forward to writing a book about my personal responses to the legal issues that arose during my time as president. I have never written anything like it before – I have never really begun a sentence in a book with the definite article, saying ‘I’. What I thought was relevant was what the law was, or what the facts were.
But to try and answer your question, I actually found it extremely easy to write, and the reason was that I had already done the work and the thinking. Although obviously I had to check my facts occasionally, it is amazing how your memory fails – but that didn’t take very long to do, to be perfectly honest, and I actually got the book done in about 10 weeks. I did it over January and February of this year, and I just took myself up to a place in the country with the dog, and that is what I did. It was actually a real pleasure to do, and I very much enjoyed doing it.
I must admit, when I approached the book I thought it was going to be a lot of international law and would be difficult to read, but it is a very accessible thing to read – not a light read, but a very accessible book.
I am very much interested in a direct writing style, to communicate with your audience. Because I think one of the reasons, going back to an earlier question about why Australians don’t know about the Constitution or the common law, is that lawyers have not been very good at communicating what they are doing. It seems lawyers always hide behind all sorts of Latin phrases and circumlocutions and complexity. I really take up the challenge of trying to get these ideas into plain English in a way that engages the reader. A writer that I just love is somebody who is probably not known at all in Australia, Lord Bingham, who wrote a wonderful book called The Rule of Law; when I find a writer that speaks directly to the audience in clear language, and manages to crystallise ideas in simple sentences, you have to learn to do it. Often I write and then I go back and take half of it out – but I find it easier to get the words on the page in terms of what I want to say, and then go back and take all the excess baggage out of it.
‘Lawyers always hide behind all sorts of Latin phrases and complexity… I really take up the challenge of trying to get these ideas into plain English.’
Do you see yourself writing any other books in the future? Has this inspired you to write more?
Well I think it has actually! I am thinking now, because I’ve sort of landed on this idea that we really must have a federal charter, I would really like to do some more, if I do another book it will be on the need for a charter, and really a need to revitalise Australian democracy, and to encourage teachers in particular to start teaching students about citizenship, and what we are as a nation, and what our responsibilities are along with our freedoms. So yes, I am toying with that at the moment.
There is a story you tell in the book – at the age of 58 a senior university administrator asked you what your plans for retirement were, and you write, ‘My fury at the question has propelled me through another 15 years in the legal profession.’ What keeps you stimulated and passionate about your work today?
I think partly the things that I have cared about and talked about for decades, seem for the first time to be attracting public attention. I’m doing a lot of public speaking, even yesterday I did two fairly major speeches with hundreds and hundreds of people coming.
I think if that kind of interest is there, I really do need to build on it and try to get an outcome rather than just talking about it. So yes, I am stimulated, partly because I think so many in the community are horrified by what is happening in Australia politically and legally, and I think this is perhaps a good time for some of the things that interest me to be talked about.
What books are you enjoying reading at the moment?
I’m reading a book called The History of Bees (Maja Lunde). It is a novel, actually about the loss of the bee species. So human beings 50 years into the future, it is not science fiction but it is a book about the future, where human beings become slaves in order to pollinate the trees, because there is no way of producing food without pollination. So it is actually quite fascinating. I also read a book by Laurie Lee, called As I Walked Out One Midsummer Morning, that is just a remarkable book. My book group is rereading Animal Farm and Nineteen Eighty-Four… I have just read Nineteen Eighty-Four, and you think, how did this man, George Orwell, dying of tuberculosis in the most horrific conditions, absolutely determined to finish this book…
They say he almost killed himself writing it.
Absolutely struggling for breath to finish it! And yet we are reading it now, as though it were completely fresh ideas. The resonance with the current environment, particularly now with the surveillance mechanisms, facial surveillance and all the rest, we are now starting to think, this man was prescient in ways that are very uncanny.