Human Rights Commission pushes freedom of expression at any cost

Tim Sou and Gillian Triggs

I know the silly season is upon us, but a couple of things lately have really freaked me out. First there was last week’s announcement that Rolling Stones legend Keith Richards is giving up drinking. And just this week I learned the Australian Human Rights Commission has successfully sought leave to appear in a case before the High Court because it is concerned about the potential ramifications for freedom of expression.

You read that correctly. We are talking about the AHRC, an institution composed of taxpayer-funded Pharisees. They justify their roles by continually finding fault in the words and conduct of the less-worthy, particularly those who upset perpetually offended types. But suddenly they want to protect freedom of expression. My first reaction, after barricading the doors, was to grab a bible and frantically thumb through Revelations. When my panic had subsided somewhat, I researched the background to the case. The reason for the AHRC’s interest soon became clear.

The respondent, Michaela Banerji, was in 2013 dismissed from the then Department of Immigration and Citizenship after a finding she had breached the Australian Public Service Code of Conduct. Using a pseudonymous Twitter handle, she had publicly criticised certain politicians and officials, including her then boss; Sandi Logan; then Minister for Foreign Affairs, Senator Bob Carr; and then immigration shadow minster and now Prime Minister, Scott Morrison. She also condemned the government’s immigration policies, tweeting “Offshore processing is unlawful” along with the hashtag “nodetention”. At the time she was a departmental public affairs officer.

During disciplinary proceedings she sought interlocutory relief from the Federal Court on the grounds that her tweets were protected by a constitutional right of political expression, irrespective of her employment contract, the APS Code of Conduct, and DIAC’s policies regarding employees’ use of social media. The court rejected this argument. In doing so, Justice Warwick Neville observed there was no “unfettered implied right (or freedom) of political expression”.

That same year she submitted a claim to the Commonwealth workers’ compensation agency, Comcare, for post-traumatic stress disorder. This was also rejected. However, in April this year the Administrative Appeals Tribunal set aside Comcare’s decision. In doing so it emphasised the anonymity of Banerji’s Twitter account, saying “Almost all of the public policy considerations underpinning restrictions on the statements of public officials, including senior public servants and military officers, cease to apply where the identity of the interlocutor is unknown.” The High Court is hearing Comcare’s appeal against the AAT’s decision as a result of Attorney-General Christian Porter’s intervention.

The AHRC submissions to the court are in support of Banerji. They make for interesting reading to say the least. For example, “A burden on political speech by public servants to the people is as qualitatively significant as a burden on speech by elected representatives to the people.” Consequently, “Burdens on political speech by public servants are less likely to be justified than other burdens on political speech.”

But most revealing was its submission that “Public servants have expertise and experience the communication of which may be critical in holding the Executive Government to account.” Is the AHRC seriously suggesting all public servants could legitimately act as watchdog over elected government? Given the APS is the government’s administrative arm and is responsible for serving the government of the day, this would create an enormous conflict of interest as well as compromising the relationship of trust that is essential between each agency and its respective minister.

Call me cynical, but I believe AHRC’s motivation in intervening has little to do with upholding freedom of expression and a lot to do with establishing a doctrine of public service supremacy. The agency’s dogmatic and longstanding insistence on subordinating freedom of expression to the so-called right not to be offended is blatantly obvious. Also, if it cared so much about freedom of expression, why was the AHRC silent on the Gillard government’s attempt to impose regulations on the media that would have compromised a free press?

The AHRC and similar institutions are, by their very nature, left-wing. They embrace activism and abhor conservatism. Parties such as Labor and the Greens regard them as an ally, a government in exile if you like. When Labor is in Opposition these bodies intensify their scrutiny of government. Although their activities are theoretically in accordance with their legislative charter, these bodies are dominated by activists who regard undermining conservative governments as their primary aim. They are indifferent to the legislative requirement that the APS must be apolitical. When you are convinced by the righteousness of your cause, these considerations are secondary.

Imagine the omnipotence of this ideology if the remainder of the federal government’s 150,000 plus employees were given similar license. Already many public servants tend to sympathise with left-wing governments. One need only look to the capital as proof of this. The ACT’s two federal electoral divisions, Fenner and Canberra, are among the safest Labor seats in the country.

It would result in a transformation of the APS to a workers’ collective. The APS would observe its obligations under the Public Service Act much like the ABC observes its legislative charter. In other words, the culture would consider itself bound only by the requirements it agreed with.

But does the AHRC extend the freedom to publicly castigate one’s agency to its own employees? Let us consider the case of a fictional AHRC employee by the name of “Gary”, who worked there between 2012-17 He is what you would call a minority at AHRC i.e. he is a white, heterosexual, cisgender male. Gary is an ardent social media user, and he is a big believer in publicly holding the AHRC and its commissioners accountable, particularly then President Gillian Triggs and Race Discrimination Commissioner Tim Soutphommasane.

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@GillianTriggs bursts out of her office five minutes after Tony Abbott is sworn in as PM. “I’m announcing an inquiry,” she tells us breathlessly. “I’ve just discovered there are children in immigration detention!”#JustKidding

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Got asked today by @timsout if I’d like an autographed copy of his book ‘I’m Not Racist, But...’. I declined, saying I was reading ‘I’m Not Against Free Speech But...’ Judging by the look he gave me, I reckon he should ask Santa for a sense of humour.

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@GillianTriggs defends holding expensive cocktail function at Sydney waterfront by dissing Koo We Rup. And she wonders why we’re labelled elitist. As public servants we have an obligation to spend taxpayer moneys efficiently, not hold shindigs. #GreatUnwashed

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Now @GillianTriggs apologises to the residents of Koo We Rup and offers to make amends. “I drive through the town regularly, and would be very happy to speak to your community about human rights.” OMG she really said that. #Facepalm

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@timsout gets paid around $350K a year to travel in luxury and attend UN junkets around the globe and his biggest complaint about his job is that a flight attendant won’t try to pronounce his surname? #SoPompousVain

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Just when we're copping heaps from the Oz over the #QUT natural justice debacle @timsout tweets “If you don’t want to be called a racist or bigot, start by not doing something that involves racism or bigotry”. Why not just say “The proof is in the accusation”? Way to go, Einstein.

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Speech by @timsout “The arts must also consciously question the status quo. This has always been the role….to compel viewers… to confront injustices and to contemplate change.” Like the late Bill Leak did with *that* cartoon? #JustSaying

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Reading Saturday Paper’s interview with @GillianTriggs and her experience with the Senate Committee: “How dare you do that when you are an elected parliamentarian and you are expected and required to read my reports.” Could this train wreck interview get any worse? 1/2

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2/2 @GillianTriggs “I knew I could have responded and destroyed them — I could have said, ‘You’ve asked me a question that demonstrated you have not read our statute. How dare you question what I do?’” Yep, it’s got worse. #MajorFail

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Senate Committee asks @GillianTriggs for a ‘please explain’. She says she was “misquoted” by the Saturday Paper. Denies saying she could have “destroyed” committee. Tower to piggy squadron, you are cleared for take-off.

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What a bummer @GillianTriggs. Turns out the Saturday Paper journo had you on tape and now you have to “clarify” to the Senate Committee that you were in fact quoted correctly. Aren’t we fortunate to have a free press to keep our statutory heads accountable? #FreeExpressionMatters

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@GillianTriggs arrives unannounced at my workstation accompanied by two burly security guards. “WE WILL DECIDE WHO COMES TO THIS COMMISSION AND UNDER WHAT CIRCUMSTANCES THEY COME” she screams furiously. Oh dear. I think my human rights are about to be violated.

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Merry Christmas, all. See you in February.