AHRC and Children in Detention: Political Bias or Shooting the Messenger

Wednesday 25 February 2015 @ 12.09 p.m. | Legal Research | Immigration

Recently we posted an article dealing with the report of the Australian Human Rights Commission (the AHRC) on the question of Children in Immigration Detention, a report which found that over the years under both the former and current government the treatment of such children had been less than it should have been in terms of their protection and welfare (see AHRC Release Report on National Inquiry into Children in Immigration Detention). Flowing from the release of that report was a strong attack on the President of the AHRC, Commissioner Gillian Triggs (The Commissioner) by the Prime Minister and key members of his government accusing the AHRC and Commissioner Triggs of political bias. An attack which arrived at boiling point during a Senate hearing on Tuesday (24 February 2015) where it was revealed that the government had been accused of breaching the Criminal Code by offering Commissioner Triggs an incentive to resign from her role as President of the AHRC.

In the light of accusations of bias and counter accusations of attempts to improperly remove the Commissioner, it seems important to consider the AHRC's history and role.

AHRC History and Role

The AHRC was established in 1986 by an Act of the Federal Parliament, Australian Human Rights Commission Act 1986 (No 125 of 1986) (the AHRC Act) as an "independent statutory organisation" reporting to the Federal Parliament through the Attorney-General.

Generally, its role (as described on its website), is to lead the promotion and protection of human rights in Australia by:

  • making human rights values part of everyday life and language;
  • empowering all people to understand and exercise their human rights;
  • working with individuals, community, business and government to inspire action; and
  • keeping government accountable to national and international human rights standards.

Its powers with respect to the rights of children appear in section 46MB of the AHRC Act which sets out the AHRC's functions to be performed as the "National Children's Commissioner" which among other matters provides as follows:

"(1) The following functions are conferred on the Commission:

(a) . . .

(b) to promote discussion and awareness of matters relating to the human rights of children in Australia;

(c) . . .

(d) to examine existing and proposed Commonwealth enactments for the purpose of ascertaining whether they recognise and protect the human rights of children in Australia, and to report to the Minister the results of any such examination.

(2) . . .

(3) A report under paragraph (1)(a):


(a) must deal with such matters, relating to the enjoyment and exercise of human rights by children in Australia, as the National Children's Commissioner considers appropriate; and

(b) may include recommendations that the Commissioner considers appropriate as to the action that should be taken to ensure the enjoyment and exercise of human rights by children in Australia.

(4) In performing functions under this section, the National Children's Commissioner may give particular attention to children who are at risk or vulnerable.

(5)  . . .

(6) In performing functions under this section, the National Children's Commissioner must, as appropriate, have regard to:

(a) the Universal Declaration of Human Rights (United Nations General Assembly Resolution A/RES/217(III) A (1948); and

(b) the following, as amended and in force for Australia from time to time:

(i) the International Convention on the Elimination of all Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40);
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5);
(iii) the International Covenant on Civil and Political Rights done at Ne York on 16 December 1966 ([1980] ATS 23);
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9);
(v) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4);
(vi) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(c) such other instruments relating to human rights as the Commissioner considers relevant."

So Is the Backlash against the Report Justified?

Considering the history of the AHRC and its general role of  "keeping government accountable to national and international human rights standards" it seems hard to see how the attacks against the Commissioner can be warranted. The AHRC has been criticised as partisan, but a reading of the report shows it is strongly critical of the policies of both the former and current governments. Indeed, relevant Ministers from both the former and current government testified in the AHRC inquiry and the report indicates they:

“. . . agreed on oath before the Inquiry that holding children in detention does not deter either asylum seekers or people smugglers. No satisfactory rationale for the prolonged detention of children seeking asylum in Australia has been offered.”

Further, in keeping with its "government accountability" role, the report apportions equal responsibility to the policies of both governments, and the fact that both had breached the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Section 46MB(1)(b) of the AHRC Act indicates it is the AHRC's role "to promote discussion and awareness of matters relating to the human rights of children in Australia" and clearly this is what the Report has done.

The Conversation points out that the Commissioner is the subject of the ire of:

"An embattled government [that] has embarked on an unnecessary fight, all because it is furious about the commission’s 'forgotten children' report."


Further, the government may indeed have some argument on the timing of the report but it would have been far more astute to accept the report's findings and act with a view to compassion and redress of the issues raised rather than to now look as if it's ". . . persecuting the woman who’s stood up for the children". 

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