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Legal and Constitutional Affairs Legislation Committee
Australian Human Rights Commission

Australian Human Rights Commission


CHAIR: Professor Triggs, would you like to make any sort of opening statement?

Prof. Triggs : No, thank you very much.

Senator JACINTA COLLINS: Good morning, Professor Triggs. I do not, unless we end up in that place, intend to return to the matters around the children in detention report that have been canvassed previously, but I do want to address some matters in relation to the overall standing of the Human Rights Commission. The first of those is the ongoing commentary about the position, yet to be filled, of the Sex Discrimination Commissioner. I do not know whether it is up to you or to the minister to please update the committee on that situation.

Senator Brandis: An announcement will be made this week.

Senator JACINTA COLLINS: I think that at our last estimates and on 11 November you said an announcement would be made very soon. Why has it taken until now for you to again be saying that an announcement will be made very soon?

Senator Brandis: I did not say, 'An announcement will be made very soon.' I said, 'An announcement will be made this week.'

Senator JACINTA COLLINS: Then I ask the question again.

Senator Brandis: I am sorry; I do not understand the question. Late last year, I was asked when an announcement would be made, and I said, as was the case, that an announcement would be made soon or very soon, and it has been. It will be made this week.

Senator JACINTA COLLINS: Let us go back through—firstly, late last year, 1 October, you were quoted in The Sydney Morning Herald saying that:

... an announcement will be made shortly.

Then you said in the Senate on 11 November:

... I am delighted to be able to tell you that an announcement will be made very soon.

You are now saying that an announcement will be made within the week?

Senator Brandis: No. I am sorry, I do not think it is very hard to comprehend what I am saying. I have said to you, 'An announcement will be made this week.' That is what I have said three times now.

Senator JACINTA COLLINS: That is what you have said three times today. That is not what you have said in the past.

Senator Brandis: I said, as you have quoted me, 'An announcement will be made shortly', 'An announcement will be made very soon' and indeed an announcement will be made this week.

Senator JACINTA COLLINS: I am now asking you, you said on 1 October—which is not 'late last year' in anyone's understanding of time—that an announcement would be made shortly, so why has it taken until now for you to say that an announcement will be made this week?

Senator Brandis: That is because a decision on the identity of the Sex Discrimination Commissioner was made by cabinet yesterday.

Senator JACINTA COLLINS: When was the decision made to establish an advisory panel?

Senator Brandis: That was made late last year. It might help, rather than beat around the bush, if I gave you the background.

Senator JACINTA COLLINS: It would help not to beat around the bush. It might have helped if you had done that in the first instance.

Senator Brandis: Please do not be impertinent. In September last year, I was about to take a name to cabinet. In the middle of September last year, as you know, there was a change of leadership of the Liberal Party, and a new government was sworn in on 21 September. It seemed to me at the time that it was appropriate to raise with the new Prime Minister the name that I had been about to take to cabinet in September. Mr Turnbull and I had a conversation, the outcome of which was that we decided that an arms-length process of selection should be adopted, and it was. That arms-length process of selection has resulted in the appointment that was decided upon by cabinet yesterday.

Senator JACINTA COLLINS: The discussion with the Prime Minister occurred after the discussion we had had at the last estimates but ahead of your statement to the Senate on 11 November?

Senator Brandis: I am not sure. I will have to check that.

Senator JACINTA COLLINS: That was on 11 November that an announcement would be made very soon.

Senator Brandis: I would have to check that.

Senator JACINTA COLLINS: Could you advise the committee when the decision to establish the advisory panel was made?

Senator Brandis: I will take that on notice. I cannot tell you. It was late last year, as a result of my conversation with Mr Turnbull.

Senator JACINTA COLLINS: You do not know what date that conversation took place?

Senator Brandis: No, I do not. I will check. I may or may not have a note of it. It was obviously after Mr Turnbull had become the Prime Minister, so it was after 21 September and it was obviously before the advisory panel was constituted.

Senator JACINTA COLLINS: It was reported in The Sydney Morning Herald that an advisory panel would be appointed on 11 December. It may be subsequent to 11 November, when you reported to the Senate on this matter.

Senator Brandis: If that is the case, then the conversation occurred some time between 21 September and 11 December.

Senator JACINTA COLLINS: You have taken that on notice, so you will advise. Can you advise us on what this arms-length process involves?

Senator Brandis: It was conducted by Mr Moraitis, so it might be best if the question were directed to him.

Mr Moraitis : It was a four-person panel, consisting of me; Elizabeth Broderick, who is the former Sex Discrimination Commission; Rebecca Cross, who is the deputy secretary in the Department of the Prime Minister and Cabinet representing the Minister for Women; and Mr Sosso, who is a former director-general of the Queensland Department of Justice and Attorney-General.

Senator JACINTA COLLINS: Can you describe the process the panel undertook?

Mr Moraitis : There was a series of discussions in the early stages involving phone conferences with the four members of the panel and the secretariat supporting the process, which was Mr Pfitzner from my department; collation of a long list of possible candidates to consider—

Senator JACINTA COLLINS: How long was that list?

Mr Moraitis : If I recall correctly, initially it would have been about 60 to 70 names.

Senator JACINTA COLLINS: Was a consultant used?

Mr Moraitis : It was based on consultations with a series of stakeholders. If I recall correctly—and Mr Manning or Mr Pfitzner can remind me—it would have involved the Human Rights Commission through Ms Broderick, the Department of the Prime Minister and Cabinet Office for Women, as well as government ministers and other departments.

Senator JACINTA COLLINS: There was no headhunting consultant?

Mr Moraitis : No, there was no formal consultancy process or executive search. That was the initial stage, and there was a series of phone discussions. For the record, I was not at the very first phone discussion; Mr Manning took my role because I was travelling back from overseas at the time. That process of considering the various names continued for about six or so weeks until it was narrowed down. I cannot recall the exact number that were approached for expressions of interest, but quite a few expressed interest. They provided their CVs and a letter of intent to apply. We then narrowed it down to a list for interview, and the panel convened in early February—I think it was 2 February—in Sydney. We asked for interviews for eight names, and one person withdrew on the eve of the interview, so we actually interviewed seven candidates, if I recall correctly. We prepared a report which went to government soon thereafter.

Senator JACINTA COLLINS: That went to cabinet last night?

Mr Moraitis : That is my understanding.

CHAIR: Before you go further, Senator Collins, I understand that the media want to film certain parts of the proceedings. Does the committee have any objection? Minister, do you or Professor Triggs or Mr Moraitis or anyone have any objection to that?

Senator Brandis: No.

CHAIR: It is in order to film and click as you wish—as long as you stay in your allotted pen! It looks like you have come for the long haul.

Senator Brandis: You might be on Talking Pictures if you do not watch out, Chair!

Senator JACINTA COLLINS: I was going to use that reference on a different matter, Chair. Thank you for reminding me. I think I was going back through Mr Moraitis's statement and asking whether he could tell me from how many people an expression of interest was sought.'

Mr Moraitis : If I recall correctly, it was in the range of 23 to 25. I think it was 23.

Senator JACINTA COLLINS: If you have not got that quite right, you can correct that subsequently.

Mr Moraitis : I should also mention that, in addition to us making a list, there were people who self-nominated. It was quite well known that this was a vacancy, and several persons did therefore approach us expressing an interest. They were included in the original list of 70 or so.

Senator JACINTA COLLINS: How was it known? By word of mouth?

Mr Moraitis : It was quite well known in the community—or the ecosystem, if you want to use that word that people use in various contexts.

Senator Brandis: Do they?

Mr Moraitis : Yes, they do, in the arts.

Senator JACINTA COLLINS: I do not think Senator Brandis likes that word.

Senator Brandis: I know there is the arts ecosystem—is there a human rights ecosystem? I am sure there are some very interesting creatures in that ecosystem!

Mr Moraitis : It was quite notorious—in the positive sense—that there was a vacancy and a desire to find a commissioner. People in the human rights community are well known to each other, and I imagine it is something that would have attracted a bit of interest. It did and I think eight or nine people did self-nominate.

Senator JACINTA COLLINS: In December, when it was reported in the Sydney Morning Herald that an advisory panel had been established, it became known within the human rights community that, if you wanted to, you should express an interest.

Mr Moraitis : It certainly was the case once it was announced, but I imagine that even before that it would have been known.

Senator JACINTA COLLINS: How many self-nominated expressions of interest were there?

Mr Moraitis : I think there were eight.

Senator JACINTA COLLINS: So, then, from a pool of roughly 31, you selected—

Mr Moraitis : They were part of the original pool of 70 from earlier stages.

Senator JACINTA COLLINS: I understand. So 70 came down to a pool of 23, roughly, plus a further eight self-nominated.

Mr Moraitis : No, they were part of the original pool that was narrowed down to 23. For the purposes of the next phase, it was 23.

Senator JACINTA COLLINS: Fine, and then that was brought down to a shortlist of seven.

Mr Moraitis : If I recall correctly—and correct me if I am wrong—all 23 were approached to express an interest. Quite a few of those—I would say half—declined to express an interest for various reasons, and I think that narrowed it down to about nine, as I said.

Senator JACINTA COLLINS: Sorry, nine? I thought you said seven.

Mr Moraitis : Seven were interviewed in the end.

Senator JACINTA COLLINS: So the final shortlist was—

Mr Moraitis : The final shortlist was eight. We organised interviews for eight, and the eighth person withdrew on the eve of the interviews for personal reasons, I think.

Senator JACINTA COLLINS: Then a report was produced from the advisory panel, which went to Cabinet.

Mr Moraitis : Which went to the Attorney, I think, and to government. I am not sure if the report itself went to Cabinet. I am not privy to that.

Senator JACINTA COLLINS: And we will have an announcement this week. I would like to put into context, Professor Triggs, some of the commentary about yourself not being on the advisory panel. Is that strange, or is it not uncommon?

Prof. Triggs : So far as I am aware, the usual procedure in the past has been to include the president and to consult the president about the appointment.

Senator JACINTA COLLINS: That process that Mr Moraitis went through did not include information as to whether you were consulted or not. Was that not the case?

Prof. Triggs : I am not entirely sure what that question is. Was I consulted?


Prof. Triggs : I was consulted by the Prime Minister before Christmas about the process, and he explained to me that he was very keen to have a proper process for selection and asked if this would cause any difficulties for the commission if it were to be delayed longer—because it would be if there were to be a proper process. I said that I was happy for the process to take longer in order for it to be a transparent, open and usual process. It was left at that, and I have not subsequently been consulted.

Senator JACINTA COLLINS: Whereas, from your understanding in previous appointments, you would have been consulted about the recommendation of an advisory panel or, indeed, would have been on the panel.

Prof. Triggs : Yes.

Senator JACINTA COLLINS: Did you think to make that point to the Prime Minister when he consulted you about what process should proceed?

Prof. Triggs : Yes, and the Prime Minister at that stage indicated that he would include me on the panel, but he did so as a matter of good faith because he had not been advised by anybody else on that question. When I told him that normally the president would be included, he included my name in the list as he wrote it down, but that would not in any way constrain him, obviously. He was simply responding to what I was telling him, and it was a matter for him in the long term as to whether he wanted me to be continued on a panel.

Senator JACINTA COLLINS: But, at the outset, the Prime Minister indicated you would be on the panel—

Prof. Triggs : He did.

Senator JACINTA COLLINS: and then that changed.

CHAIR: I am not sure that advice—I assume this is advice to Cabinet. Is that something that should be discussed here?

Senator JACINTA COLLINS: This is not advice to Cabinet.

CHAIR: It is advice to the minister, which I thought was not subject to questions at these hearings. I think officers are expected to be able to give advice to cabinet or ministers without having to speak publicly about it.

Senator JACINTA COLLINS: My question was simply, 'Had Ms Broderick consulted?' She was seeking to describe the nature of that consultation. I understand the line that you are pointing to, and we will be careful not to go down further that path. Is that my time?

CHAIR: You have a few extra minutes. Finish here.

Senator JACINTA COLLINS: I have finished this set of questions.

CHAIR: We interrupted you. You have another five minutes.

Senator JACINTA COLLINS: President, I will not go further into that issue at this stage. There was another issue that occurred to me at the previous estimates when I asked you questions about the human rights commissioners' travel. You gave me an outline of the arrangements for travel. I think I need to clarify some further questions about the approval process. Is it up to each commissioner to determine what travel they undertake, including overseas travel, or is that something that is cleared through you?

Prof. Triggs : The short answer is that all of that travel is cleared through me as president. But each commissioner has a budget for travel and it is broadly intended that it should support their national work or a national body, and there is a lot of travel required to meet the demands of the community across Australia. So each commissioner will have a budget, and they will determine for themselves across a year where they want to place that emphasis in spending that budget. But in relation to most of that budget I do clear their travel. There are occasions when there is international work, but generally not, primarily because as president I do most of the international work. But it might be, for example, that a commissioner were asked to play a role in a China project, and it will be appropriate for them to go to China, and I would always approve that kind of travel.

Senator JACINTA COLLINS: But that approval would occur before the travel occurred, would it?

Prof. Triggs : Yes, in the normal course.

Senator JACINTA COLLINS: It may have been an oversight on the previous occasion. I will give you an opportunity to respond here. When I asked you about commissioners' travel, you outlined a range of that travel, but then Mr Wilson outlined some further travel that he himself had undertaken. Was there a reason you were not incorporating that travel within your own response?

Prof. Triggs : I would really need to know the specifics of that particular matter before I could answer. If I may, I would like to take that on notice. There are occasions—and I am not saying it was in relation to Mr Wilson's travel—when a commissioner will come to me afterwards to get, in a way, ex post facto approval. It happens rarely, but it does on occasion happen. Also, of course, there is a wider opportunity for travel if the travel is not being funded through commission funds. Sometimes a commissioner is funded for international travel from another organisation. If that seems to me to be appropriate to their job, their portfolio, then I would approve their travel. If there were expenses from the commission, I would approve that.

Senator JACINTA COLLINS: If you would not mind looking back over the Hansard at the discussion we had on the last occasion on that. As I said to you, the thought in my mind at the time was, 'Why was Professor Triggs not covering this travel, as indeed she was the rest of the commissioners' travel?' It may be it involved ex post facto. I think the trip itself involved some external sponsorship as well. But I was curious as to why it was not within your broader response. Indeed, to give Mr Wilson credit, he then proffered that there was this further travel that you had not indeed covered.

Prof. Triggs : I will look at that example and get back to you as a matter of taking it on notice, to be precise as to the date on which that travel and additional funds were approved by me.

Senator JACINTA COLLINS: Thank you. Going back to the Sex Discrimination Commissioner position, I am attempting to understand who is covering for Elizabeth Broderick now that she has departed, until such time as we have another commissioner in place.

Prof. Triggs : Again, the short answer is: I am, as president. I have been doing the public speeches and media in the area where it is appropriate. Of course, we have major projects that concern and that will concern the future Sex Discrimination Commissioner. The work of the commission has continued even though Ms Broderick finished her position in late August. The work of the commission in relation to sex discrimination matters has continued without faltering—one major project being of course with the armed forces, and there are many others. I have been taking a leadership role in relation to managing that until a new Sex Discrimination Commissioner is appointed.

Senator CANAVAN: I have some questions following up on last estimates. I asked you about your UPR submission, and in particular about the recommendation that Australia should adopt same-sex marriage laws. I referred to a number of cases that seem to indicate that under our international human rights law obligations we would have no such obligation to change the Marriage Act. In particular—and I will murder these pronunciations—there is Schalk and Kopf v Austria in 2010 and Hamalainen v Finland in 2014. When I put those cases to you, you mentioned that there is other case law, presumably arguing a different position. You said:

… they are decisions of the European Court of Human Rights and the United Nations Human Rights Committee.


I would really like to write to you with each of those cases;

I am just wondering if you have been able to review that case law. Do you have those cases for me today?

Prof. Triggs : My understanding is that we have provided you with a paper setting out all of these cases.

Senator CANAVAN: My office has no record of that correspondence.

Prof. Triggs : Can I then ask for us to be able to resend this material.

Senator CANAVAN: Sure.

Prof. Triggs : We have given you a complete analysis of all of the cases that are relevant to this question. I think it probably does not include the United States Supreme Court decision on marriage equality and the 14th amendment.

Senator CANAVAN: Do you have some of those cases for me now?

Prof. Triggs : We have this now, but I can also add a briefing on the American decision.

Senator CANAVAN: Could you provide some of those cases—the references that you have—to me now?

Prof. Triggs : If you would like, yes. One is the Minister of Home Affairs v Fourie and Another. That is a decision—I will have to give you the citation. I have a citation here—

Senator CANAVAN: These are decisions in the evidence you provided last time.

Prof. Triggs : That is right. There is a whole list of 32 citations to all of those cases in the material—in a paper called Marriage equality in a changing world. All of those cases are there.

Senator CANAVAN: In particular, of course, you are obviously interested in cases that support your recommendation as part of the UPR process. Some of those cases have a different spin, if you like, on our international human rights obligations, do they? The quote I gave to you from Schalk and Kopf v Austria was pretty clear that under the ICCPR we would not seemingly have obligations to change the Marriage Act.

Prof. Triggs : The key position—if I am to sum up the position of law, including in relation to that case—is that international law does not require the recognition of same-sex marriage, but international law increasingly recognises the legal principles that would underpin a decision to give recognition. The United States Supreme Court decision is rather in advance of that, because the position there is that the states must recognise the opportunity to have a marriage for same-sex couples. That is a requirement of the 14th amendment by the United States Supreme Court. But that is, I think—in fairness—probably a step beyond the current jurisprudence globally, where there is a recognition of the permissibility of the law but not the requirement that such laws be passed.

Senator Brandis: I am sure it is the case, Senator Canavan, that mutual recognition within a federation of the respective states' domestic laws is a matter of 'full faith and credit' rather than the principal of international law between states.

Senator CANAVAN: Professor Triggs, to clarify that the commission's position is that international human rights law and our international human rights obligations do not require us to change our Marriage Act to recognise same-sex couples?

Prof. Triggs : The international legal position is that we are not required to do so, but the evolving jurisprudence internationally is increasingly to recognise it. So we are, in a sense, in an evolving situation internationally but, as the Attorney quite correctly points out, there is another question and that is how we view the law in Australia as a matter of, perhaps, common law principles or of evolving jurisprudence within Australian courts and at the political level.

Senator CANAVAN: Have you had an opportunity to review or look at the Parliamentary Joint Committee on Human Rights report on a private member's bill to change the Marriage Act in favour of same-sex marriage?

Prof. Triggs : I have seen that, yes.

Senator CANAVAN: That report, or at least the majority report, of that committee concluded that we did have such an obligation to change our law to recognise same-sex couples. Can I take it that your view is at odds with or different to the conclusion that committee?

Senator Brandis: I think in fairness to Professor Triggs, she is talking about the legal position at international law. I do not know if there were any international lawyers sitting on that parliamentary committee, but I suspect its conclusions are of a political character rather than expressing an educated legal view.

Senator CANAVAN: Minister, that is the case in terms of the committee members themselves, although the committee does take legal advice from an expert here in the field who is explicitly tasked by the parliament to examine whether or not proposed laws are compliant with our international human rights obligations. In this case, the majority of the committee concluded that we did need to change our law to be compliant with those obligations.

I might leave that there. It seems pretty clear that the Human Rights Commissioner has a different view to the committee, and that is perfectly fine. There is no great issue there. I want to return to your recommendations. If—

Prof. Triggs : Senator, excuse me for interrupting, but I wonder if I might—

Senator CANAVAN: Certainly, Professor Triggs.

Prof. Triggs : The head of our legal division at the Human Rights Commission would like to clarify a point as to what our jurisdiction is in relation to international law and our submission in relation to these matters. Excuse me interrupting.

Ms O'Brien : The paper that we sent through the questions on notice process, rather than directly as a letter to you—

Senator CANAVAN: Okay—that is why I missed it.

Ms O'Brien : which may be why it has not come to your direct attention—is the commission's position paper on marriage equality. That position paper is clear that the commission considers that the fundamental human rights principle of equality means that civil marriage should be available to all couples without discrimination, regardless of sexual orientation or gender identity. The paper also deals with the jurisprudence that we have just been speaking about which is some slightly older jurisprudence that indicates that the ICCPR does not require the recognition of same-sex marriage. However, commentators have suggested that the views of the human rights committee may evolve with state practice. At the time of the Joslin decision, that I think you have referred to, there was only one country that recognised same-sex marriage. As we know, there are now many more.

Senator CANAVAN: How many are there, Ms O'Brien?

Ms O'Brien : I do not have the actual figure.

Senator CANAVAN: In our report, it is not that many. Certainly nowhere near a majority.

Ms O'Brien : Mr Wilson has indicated that he thinks it may be 28.

Mr Wilson : No, it is 20.

Ms O'Brien : Twenty?

Mr Wilson : It was 19 [inaudible]

Senator CANAVAN: How many signatories are there to the ICCPR?

Prof. Triggs : To the ICCPR? I would take it on notice but that is one of the leading international human rights treaties. I think there would be something like well over 100 states that have ratified it.

Senator CANAVAN: Ms O'Brien, I want to clarify that in that paper you are saying your position is that same-sex marriage should be legislated to comply with the right to equality, or accord with the right to equality. Is that right?

Ms O'Brien : The principle of equality was not considered in the Joslin decision that we were talking about. They were considering a different article under the ICCPR. The commission's position is that, consistent with the principle of equality and the right to equality, civil marriage without discrimination—

Senator CANAVAN: I am getting really confused now. Earlier Professor Triggs mentioned that we had no obligations under human rights laws to—

Ms O'Brien : I think because—

Senator CANAVAN: Please let me finish, Ms O'Brien, so I can explain my confusion. Earlier, Professor Triggs mentioned—and I had specifically asked her to clarify this—that we had no obligation under international human rights law to legislate for same-sex marriage. What you have just said, Ms O'Brien, is that, under the right to equality provisions of the ICCPR which we are a signatory to, we should legislate same-sex marriage. How do those two positions accord with each other?

Ms O'Brien : I think it is because the president was responding to a question about the particular case you were talking about, the case of Joslin.

Senator CANAVAN: My question was pretty clear. It was not in reference to those cases. It was a generic question.

Ms O'Brien : I am sorry; that was my misunderstanding.

Senator CANAVAN: Maybe Professor Triggs can clarify that, as it was she who answered the question. It was a very generic question. I asked very explicitly, 'Are we required under international human rights laws, our obligations, to change the Marriage Act?' I am happy to review the evidence later, but I believe Professor Triggs said, 'No, we are not required to.'

Senator Brandis: In fairness to the witnesses, I do not think there is confusion. Professor Triggs, who, it should be remembered, is a very distinguished international lawyer, was stating the legal position. Ms O'Brien was stating the commission's position. You inquired how many states are parties to the ICCPR. I am advised that there are 168 states parties to the ICCPR. I believe that the number of states that recognise same-sex marriage at the moment is either 19 or 20.

Senator CANAVAN: The minister has usefully summarised this conundrum. I am interested in knowing what our international human rights obligations are. I had thought that was clarified earlier by Professor Triggs saying that we did not have an obligation to legislate for same-sex marriage. If the commission has a different view or an evolving view about our obligations, that is fine. But I am interested in knowing whether that view of the commission, the one you have put in that paper, is based on our obligations under international human rights law or whether it a view that you have that we need to do something above and beyond our obligations.

Prof. Triggs : We have examined what we believe the principle of equality means for the purposes of Australian law. We have taken the view that, to give effect to that principle of equality, there should be an equal opportunity for marriage for all Australians. That is the position we have recommended. In explaining to you, I noted that the cases you have wanted to discuss have emphasised that there is no binding obligation to introduce such legislation. That was the basis of my answer to you. Just as the United States Supreme Court has emphasised the principle of equality and due process, we also believe that that is an important principle that should be adopted within Australian jurisprudence. This ultimately becomes a matter of political view for the community and for government. We are simply making a proposal based essentially on the idea of equality of the law.

Senator CANAVAN: Is your proposal, your recommendation, beyond our obligations under international human rights law?

Prof. Triggs : We believe, based on our interpretation of the principle of equality, that the evolving law is now one which would require that a state, a democratic country like Australia, should move towards recognition of equality.

Senator CANAVAN: What does that mean, Professor Triggs? I am not a lawyer. Do we or do we not have an obligation right now to change the Marriage Act? Is your recommendation consistent with those obligations or is it beyond those obligations? I am trying to be as clear as I can.

Prof. Triggs : My view is that, under the current law, there is an evolving principle of equality—

Senator CANAVAN: What does 'evolving principle' mean to a layman like me?

Prof. Triggs : International law does evolve. We have evolved from a position where very few states have recognised marriage equality to a position where a growing number of comparable legal jurisdictions—in other words, jurisdictions Australia wants to be compared with—are moving towards recognition of marriage equality. Within that group of states with relatively advanced views of human rights, the principle of equality is an underpinning concept which we think would now be one that would be consistent with our international obligations under the International Covenant on Civil and Political Rights.

Senator CANAVAN: I think my time is up.

CHAIR: Well it is, but we can come back to you later.

Senator JACINTA COLLINS: Just before I move onto another area, whilst we are talking about your role, Professor Triggs, as president, were you consulted on Mr Ruddock's new role?

Prof. Triggs : No, I was not.

Senator JACINTA COLLINS: This may be unfair, then, in that context, but I am wondering whether you can help elucidate any understanding of what that role involves.

Senator Brandis: In fairness to Professor Triggs, Mr Ruddock is an envoy of the government. It might be a question best asked in DFAT estimates.

Senator JACINTA COLLINS: Okay. Professor Triggs, former Senator Stott Despoja is an ambassador for women and girls. What are the other positions that relate to Australia's human rights effort?

Prof. Triggs : We obviously are and have long been engaged in the United Nations human rights monitoring processes, and they are conducted basically through the Department of Foreign Affairs and Trade with advice and support from the Attorney-General's Department. That engages a surprisingly large number of people, in fact, who go to these meetings and working groups. There is a major working group on the rights of indigenous peoples, for example, and rights in relation to women, children, disabilities and obviously race. On notice I can give you the names of all of those committees and those people who are currently appointed to them. Our ambassadors throughout the world play a role in relation to human rights—

Senator JACINTA COLLINS: No, I am asking more specifically about specific positions other than an ambassador, such as Senator Stott Despoja, which is why I used her as an example.

Prof. Triggs : I think Senator Stott Despoja is a well-known Australian, so she has been able to play a very strong role in that area. We do not otherwise have a sort of roving ambassador, if you like, on human rights matters, and I expect—

Senator JACINTA COLLINS: I thought Mr Wilson was the roving ambassador on—

Prof. Triggs : Well, for Australia, but you are asking about international areas.


Prof. Triggs : And the international field I hope will be one that Mr Ruddock can fill, especially as we hope for a favourable vote for a position on the Human Rights Council. So, it is an important time for us, through the relevant government departments and through envoys of this kind, to help support Australia's bid.

Senator Brandis: It should also be added that I think the largest concentration of personnel in the human rights field in this country is within my department—the International Law and Human Rights Division of the Commonwealth Attorney-General's Department. That and the Human Rights Commission are the two main concentrations of people tasked with human rights issues within the Australian government.

Senator JACINTA COLLINS: Indeed. That is why I thought it might be useful to ask this question here, rather than solely at DFAT. And I notice that Mr Moraitis has been nodding his head also—

Senator Brandis: Quite. But you were asking some specific questions about Mr Ruddock's role. Now, ambassadors, as you know, are answerable to a different estimates committee. That is the only point I would make.

Senator JACINTA COLLINS: Well, Professor Triggs has also indicated that—

Senator Brandis: Mr Moraitis might be able to contribute to the conversation.

Mr Moraitis : I will just add to the Attorney's comments about departments that Foreign Affairs and Trade of course have a significant number of people involved in human rights, both overseas—in Geneva and New York—and in their multilateral division, and we work very closely with them. So, they have a significant level of engagement in this space.

Senator JACINTA COLLINS: Was the Attorney-General's Department consulted?

Mr Moraitis : I was not aware of it, no—not that I am aware of.

Senator JACINTA COLLINS: So, despite the Attorney's comment that the Attorney-General's Department and the Human Rights Commission has the highest concentration of people working in the human rights area, neither were consulted about this appointment?

Mr Moraitis : Perhaps I may say by way of explanation that the focus of A-G's human rights effort is essential in the national space, to a large extent—

Senator JACINTA COLLINS: Domestic, do you mean?

Mr Moraitis : with an international dimension, of course, explained, for example, in the UPR. We lead the process there, but in the international space I would defer to DFAT as having the primary say on international engagement in the human rights sphere.

Senator Brandis: And I would not have expected to have been consulted on this appointment as the minister with responsibility for the Attorney-General's Department. Nor would I expect the Human Rights Commission to have been consulted. Perhaps you could pursue this line of inquiry in DFAT estimates.

Senator JACINTA COLLINS: Well, I may indeed do so, but let me understand that, then. I did not ask whether you yourself had been consulted, Minister, but I gather from what you said that the answer is no.

Senator Brandis: Well, the point I make, of course, is that the Prime Minister, if he were to consult a department of the government, would consult the minister.

Senator JACINTA COLLINS: It depends on what level that consultation occurs at. Let me move on then to—Mr Wilson, I am not sure whether you came to the table because we were talking about the same-sex marriage issue or because you were anticipating my questions.

Mr Wilson : Both.

Senator JACINTA COLLINS: Very good. Perhaps I can go to the information you provided after our questions on the previous occasion related to your travel between 26 September and 12 October. I have been having trouble adding up figures in terms of the fares that were reimbursed and understanding why Brigham Young University paid that figure of $1,749. What does that relate to?

Mr Wilson : I would have to confirm with my office, but it is most likely going to be the cost of the return airfare share to Utah from Sydney.

Senator JACINTA COLLINS: What was the understanding when you were invited to make that address or attend that conference?

Mr Wilson : The understanding was that I would go and they would cover an economy return airfare to Utah as well as the cost of accommodation while I was in Utah.

Senator JACINTA COLLINS: So, the reason these figures do not add up could be that there has been some sharing of costs between themselves and the Human Rights Commission?

Mr Wilson : It would be some sharing of costs because in addition to going to Utah I went to some other states of the United States for efficiency reasons, to reduce costs to the taxpayer, and held a series of meetings, as we discussed at the last estimates, in other states, including New York, during the General Assembly of the United Nations, as well as Washington DC and Dallas, Texas, and Los Angeles, California. So, there would have been some of those costs incurred as part of my travel. That would have been paid for by the Human Rights Commission.

Senator JACINTA COLLINS: I have here on attachment A the meetings you had in New York City, in Washington, in Dallas—oh, okay, and the UCLA law school in Los Angeles; that was the one I did not notice previously.

Mr Wilson : Yes.

Senator JACINTA COLLINS: There is a comment on attachment C that sets out your travel details against the second line item, which says 'private travel to San Francisco cost recovery paid 21 October'. Is there a reason that was paid the day after we discussed this at last estimates?

Mr Wilson : That was the date I received the invoice from the commission.

Senator JACINTA COLLINS: So, there was a previous arrangement that that is what would occur?

Mr Wilson : It was very clearly previously established that that is what would occur, and I have always said that I would pay for that component of it as an understanding that that was private travel.

Senator JACINTA COLLINS: The difficulty I have with your evidence on the previous occasion is that your answer to me when I asked you whether you combined personal travel was 'only to the extent that I had some weekends which I had to fill in and did some personal commitments or saw friends in that time, but nothing more'. Now, the travel outlined here does not have you 'filling in' a weekend in your travel arrangements.

Mr Wilson : I travelled on the weekend in my private time to go to Los Angeles and then flew up to San Francisco on the weekend. Had I flown on the Monday morning, I would not have been able to make my commitments in New York. So, I did not leave on the Friday; I travelled through my private time. I could have travelled earlier and charged the taxpayer more, but I chose not to do that; I chose to expend my private time in making sure that I travelled.

Senator JACINTA COLLINS: I am sorry—how could you have charged taxpayers more?

Mr Wilson : I was required to be in New York on Monday morning. Therefore—

Senator JACINTA COLLINS: Sorry—go back a step. I want to understand this in relation to your earlier evidence. Your earlier evidence was that you were invited to go to Utah.

Mr Wilson : Correct.

Senator JACINTA COLLINS: And you went to Utah via some other cities.

Mr Wilson : Correct.

Senator JACINTA COLLINS: And established appropriate business in those cities.

Mr Wilson : Yes.

Senator JACINTA COLLINS: But surely it was up to your organisational program as to when you were required to be in any of those cities. The only set requirement was your attendance in Utah.

Mr Wilson : Correct.

Senator JACINTA COLLINS: So, I do not understand how that relates to how you could have saved taxpayers money by travelling at a different time.

Mr Wilson : Because the United Nations General Assembly is held in a fixed week; it does not move around my diary.

Senator JACINTA COLLINS: Right. So, your decision to attend the General Assembly and be there on the Monday morning made—what issues in relation to travel costs?

Mr Wilson : There are series of people I wanted to meet with in Washington DC who were not in Washington DC because they were in the United Nations General Assembly at that time. There were other people in the United Nations in that period—for instance, Ambassador Saperstein, the US Ambassador for Religious Freedom—and I wanted to catch them while they were there. Equally, while I was there I was asked by the Department of Foreign Affairs and Trade to represent Australia at the launch of the Free and Equal campaign. So, I had a number of commitments that were based around that timetable, and obviously my view is that we should get maximum value from any taxpayer expenditure when I happen to be somewhere like New York and to make sure that the program is as busy as possible—and it was.

Senator JACINTA COLLINS: I understand the value in having a busy program. What I do not understand is the value to taxpayers of breaking your journey in Los Angeles, travelling to San Francisco at the start of your business—not to fill in a weekend—and then charging the taxpayers for the journey from San Francisco, business class, to New York.

Mr Wilson : Sorry—I travelled on the weekend, during my private time. If I travelled during a strict nine-to-five schedule, which you could take as a mechanism by which you do it—

Senator JACINTA COLLINS: No, that is not the normal mechanism.'

Mr Wilson : Well, the alternative—I still needed time to recover once I arrived in New York.

Senator JACINTA COLLINS: But you did not have time to recover once you arrived in New York; you went straight into business.

Mr Wilson : No, because I took the time to recover in San Francisco.

Senator BILYK: At a wedding.

Mr Wilson : And I paid all costs incurred associated with attendance at the wedding.

Senator JACINTA COLLINS: Well, 'all costs' is the issue that perhaps, given your earlier evidence, I will pursue further with Professor Triggs, because the impression—and correct me if I am wrong—that you gave was that it was a hands-off arrangement with the Human Rights Commission and that you would meet any invoice that related to your personal business. Is that correct?

Mr Wilson : Correct—and I have done so.

Senator JACINTA COLLINS: Well, I think that is a matter of further questions. Professor Triggs, how would the invoice have been calculated in these circumstances?

Mr Wilson : I would have to take that on notice. The financial section of the commission will look at the various stages of a trip like that and work out, according to the rules, what days you can have off to recover, and all of those positions—what is personal, what is related to the portfolio responsibility or the invitation—and they will calculate what expenses are due. And within a reasonably fast period they will produce an invoice to have a recovery of any funds that should be returned to the commission. That is pretty much how the process works.

Senator JACINTA COLLINS: And looking at these dates—26 September—the answer to my earlier question may simply be that the travel was so proximate to that last round of estimates that it was not necessarily in your head at that point.

Prof. Triggs : I think that is entirely possible, and I would like to have a look at the exact record to see how it happened and when the invoices were created.

Senator JACINTA COLLINS: Yes. Indeed, my question then is: did the last estimates trigger that invoice or was it just in the normal train of events?

Prof. Triggs : I will make inquiries as to how and by what normal process that was triggered or whether it was triggered by some request. I can inquire about that and report back to you on notice as soon as I can.

Senator JACINTA COLLINS: Okay. Could you also on notice report back to me the understanding that was reached with Mr Wilson before he travelled?

Prof. Triggs : I will.

Senator JACINTA COLLINS: And then the process that occurred in terms of developing the invoice. Both of us and indeed the minister have travelled overseas often enough to know it is not a nine-to-five travel type schema.

Senator Brandis: I think Mr Wilson specifically said it was not.

Senator JACINTA COLLINS: He was comparing it. Frankly, at the salary levels that human rights commissioners would be on—what is the salary grade of the Human Rights Commissioner now?

Senator Brandis: You are being unfair now.

Senator JACINTA COLLINS: Why am I being unfair?

Senator Brandis: He was at pains to say that it was his view that as many functions, meetings and activities as possible should be scheduled to make the best use of the taxpayers' money, and that is what was done.

Senator JACINTA COLLINS: No, I was not asking that. I have no dispute with Mr Wilson that his program during the dates he was on official business was not appropriate. I agree that he had a busy program and it was well occupied in those dates. My questions relate to his personal business ahead of that program.

CHAIR: You might have to follow that up later. Your time has finished.

Senator JACINTA COLLINS: Okay. I will come back to it.

CHAIR: This is an unfortunate line of questioning, and perhaps we should use the same questioning to some of Senator Collins's colleagues in the travel they undertake overseas.

Senator JACINTA COLLINS: You will need to go to another committee for that!

CHAIR: I am reluctant to do this, but Professor Triggs, I ask if you can give me on notice details for the last 12 months of all international travel taken by you and other commissioners, identifying what parts of that international travel were not taken up with official functions and also what the arrangements were for any travel that was not official functions to be reimbursed—more or less the same questions that Senator Collins has been asking of Mr Wilson but from all commissioners. I must say I am reluctant to do this, because I understand how these things work and that you can grab a headline by asking questions—

Senator JACINTA COLLINS: Is there a question? This is commentary. I do not think it is appropriate that as chair you conduct commentary on my questions. Please behave as the chair.

CHAIR: I am not commenting on your questions; I am just saying—

Senator JACINTA COLLINS: Yes, you were.

CHAIR: I am saying I am reluctant to have to ask the commission for these—

Senator JACINTA COLLINS: Just ask your question.

CHAIR: I am indicating I am reluctant to do it.

Senator JACINTA COLLINS: Then don't. Either way, do it.

CHAIR: We will put the questions on notice that I indicated with some regret.

Senator JACINTA COLLINS: Those questions were last asked in the last round by you.

CHAIR: It just seems an unfortunate waste of our time.

Senator JACINTA COLLINS: Then why did you ask that in the last round?

CHAIR: Mr Moraitis, you or perhaps the minister have indicated that there was the biggest grouping of human rights advocates or activities in your department. I will ask this question to both Professor Triggs and Mr Moraitis. Why do we need a huge area of human rights in your department, in foreign affairs, I am told, and then in the Human Rights Commission? Can you explain?

Mr Moraitis : My opinion? I have served in foreign affairs and trade, and obviously there is a great interest in the international human rights regime from that perspective, so foreign affairs has that dimension to their work. They have a responsibility in negotiating agreements, declarations and protocols in the multilateral context. In fact, I began my career in DFAT as a third secretary in Geneva negotiating such instruments. It is a rite of passage for many officers in that department. They continue through bilateral measures as well with various countries across the world on issues such as the death penalty in particular—that has been an issue—and the rights of women and girls, supplemented by the efforts of Ambassador Dr Stott Despoja in recent years, which has been an ongoing role.

In the case of the Attorney-General's Department, we have responsibility to work with the commission to ensure the finances and arrangements work well and for things like appointments of the commissioners. We also make sure that our international obligations conform with our domestic settings as best we can. As I alluded to, in the universal periodic review process, we are both in a generic sense and also a specific, regime based sense, assisting DFAT and other departments. When we go to the UN and we present reports, we are scrutinised by various countries about our performance in the human rights field. That requires a lot of work. Of course, our international law office provides a lot of international legal advice—certainly in the sphere of human rights and international humanitarian law, which is a large part of our role as well in working with Defence, which is a related area of human rights in the context of armed conflict. For example, we work very closely with the International Committee of the Red Cross. They are in town this week, in fact. We talk to them a lot about IHL issues and human rights issues as they overlap. That is pretty much it unless Paul wants to add any areas that I am not across.

CHAIR: Thank you for that. That was very useful and educating for me, but my real question was: why do we need those, it appears, quite substantial divisions within two government departments and the Human Rights Commission? What do you do that the Human Rights Commission does not do? What does the Human Rights Commission do that you do not do?

Mr Moraitis : Clearly, we do not do the work that the commission does in terms of complaints mechanisms and making reports on various issues. Ours is more a legal policy role and a role supporting other departments in government in general to prepare itself internationally.

CHAIR: Does the same apply for DFAT as well?

Mr Moraitis : As I said, DFAT's engagement is more international. They are involved in our international relations in the multilateral sphere in particular but also, as I said, in the bilateral sphere. We work bilaterally with many countries to make our positions clear on human rights issues, which has been a longstanding tradition in Australian foreign policy.

Senator Brandis: To add to Mr Moraitis's remarks if I may: there is a clear separation of function, because the Attorney-General's Department, obviously, is a department of the Australian government. It performs those human rights related tasks that Mr Moraitis has adumbrated. The role of the Human Rights Commission is quite different. The Human Rights Commission, which was established by its own act of parliament, has the functions given to it by that act of parliament, and those include advocacy. They include preparation of reports on human rights related issues. They include, as Mr Moraitis has said, a complaints conciliation function. None of these are obviously tasks that would be done within the bureaucracy of the Australian government by a department of the Australian government. And there are other functions as well. The Human Rights Commission has a degree of independence in the way that a department of the Public Service does not. It is largely, though not entirely, free of ministerial direction, whereas the department obviously is subject to the ordinary principles of the Public Service Act. So there is quite a difference in the function of the two.

CHAIR: Apart from Ms Stott Despoja and now soon to be Mr Ruddock, are there other people engaged in the field either by the government or by the Human Rights Commission?

Senator Brandis: The Human Rights Commission on occasion employs consultants. Perhaps Professor Triggs or others could elaborate on that. But I think this is a good story, if I may say so. The Australian governments of both sides of politics, I am bound to say, have been very conscious of Australia's very strong reputation as a liberal democracy based on respect for human rights.

CHAIR: I agree, but that was not my question. My question was: are there others? We know of Senator Stott Despoja and now Mr Ruddock. Are there other people that we are not aware of that are doing similar things?

Mr Moraitis : Of course. Ambassadors to Geneva and New York play a role in the human rights space. Our permanent rep in Geneva has a significant role in the human rights field. Officials in our mission in New York would also work on things like the Third Committee of the UN General Assembly as well as the UN Commission on the Status of Women. There are assigned officials who work in this space.

CHAIR: Okay. I will leave it there. Senator Hanson-Young.

Senator HANSON-YOUNG: Thank you, Chair. Professor Triggs, I have got some questions in relation to the report that was launched by the Human Rights Commission last week, The health and wellbeing of children in immigration detention. I understand that this report was based on visits that the commission has taken to Wickham Point where there is a number of children and families being held who, I understand, have been transferred from Nauru, so they are within that cohort of individuals who are quite publicly being debated at the moment in relation to their return. Could you take us through the key findings of that report? I understand you only released it early last week.

Prof. Triggs : Yes. In fact, most of the children who are vulnerable to being returned to Nauru under government law and policy are held in Wickham Point. The Australian Human Rights Commission conducts monitoring visits to the detention centres, and it has done so for many, many years. In the normal course of our work, we went to Wickham Point late last year and reported those findings to the department, and we have been working with the department in relation to particularly the medical conclusions that were reached by the medical members of the team. The findings were very disturbing, and we preferred, in the first stages, to work the department because we were so shocked by those findings, and we would have continued to do so had there been any movement in relation to these children.

The High Court decision did, indeed, clear the air in terms of the constitutional and domestic law on this question, but it did mean, of course, that the children were now particularly vulnerable to removal. It was at that stage that we decided to announce that medical report and my report as president. The essence of that report really confirms the findings of the Forgotten children report, the Moss report, the Senate inquiry and, of course, the United Nations body's reviews on the condition of these children and their families.

Very briefly, there are particular medical monitoring tools which have international credibility which were used by these medical paediatricians, and they confirmed that 19/20 children have little hope for the future. They are in despair and they are at high levels of trauma—so much so that the medical experts were able to say that they had never seen so many children reaching these high levels in the tests—that demonstrated that they were deeply traumatised, mentally ill in some cases, and certainly needing medical treatment for mental and other conditions. In essence, the consequence of the medical reports, the outcomes, were to confirm all of the findings that have been made over the last two or three years. This was only, sadly, significantly compounded because these children are now traumatised partly by the conditions of their parents—that they will be sent back to conditions that they are very familiar with, so they knew what they will be going back to if they were to be returned.

Senator HANSON-YOUNG: Did you speak to the parents as well?

Prof. Triggs : Yes. Thirty-seven children are babies, so in those cases it is obviously the parents that need to be talked to.

Senator HANSON-YOUNG: In conducting your interviews and gathering evidence with those families, was there a strong sense of concern and fear about their possible deportation to Nauru?

Prof. Triggs : I would say that was a primary concern. They were concerned about the conditions in Wickham Point, but the primary cause of anxiety and distress, over and over again, was that they had experienced the conditions in Nauru, and they were fearful that they would be returned to those conditions.

Senator HANSON-YOUNG: Just so that we can have an understanding: you said that you took medical staff with you. What type of expertise or specialists were they?

Prof. Triggs : They were both paediatricians who are very highly regarded in Australia by the profession. One in particular commands international respect for her work, particularly with alcohol symptoms for the foetus and for children.

Senator HANSON-YOUNG: Does the commission have a view on whether these families should be removed from Australia and sent to Nauru?

Prof. Triggs : We have a strong view: the conditions on Nauru are conditions that are dangerous and unsafe. Therefore, in light of our international legal obligations, particularly under the Convention on the Rights of the Child but also under the International Covenant on Civil and Political Rights—both of them are treaties explicitly within our jurisdiction and create the mandate for our assessment as to human rights compliance—we take the view that, due to the conditions and the circumstances of their detention on Nauru, the children and their families should not be returned.

Senator HANSON-YOUNG: Did you hear evidence that detention in general has been harming children, or are there things that are specific to living and being detained on Nauru that compounds the overall negative impact? We heard from the department's chief medical officer—only yesterday in this hearing—saying that detention is not good for children. I am wondering: do you have evidence to show that detention on Nauru is perhaps worse than detention on the mainland?

Prof. Triggs : Perhaps I can take the first part of your question. One of the findings of our own report, the forgotten children report from more than a year ago, is that the fact of prolonged detention on children is demonstrably damaging to those children. That is the first point.

To come to your second question: what is different about Nauru that exacerbates those circumstances? What is different is the fact that they are living in tents; they have little, if any, air conditioning; and they have to walk 100 metres to water or to the lavatories. My understanding, just by way of example, is that, if there is enough water washing machines are available to wash their clothes every two weeks. If there is little water, they might be lucky to have a washing machine or access to one every month. These are the sorts of conditions of daily life which are very poor, coupled with the tropical heat—but of course that is typical for Darwin and Wickham Point, broadly, as it is for the island.

The other element of concern, and we hear this almost unanimously, is that there is a fear of assault and sexual assault. That is one reason why all those we have spoken to and those who approach the commission through the complaints process, or the inquiry process, will say that, although they are technically free to leave the tents in the detention centre, they are very reluctant to do so because they are concerned about the conditions in the wider community. To try to sum up: the living conditions are significantly poorer than they are in Darwin and in other detention centres in Australia—but Wickham Point is the critical one; and the general circumstances are ones of a heightened sense of risk and danger. Regardless of whether the evidence always supports their fears, there is a genuine and deeply held fear for their personal safety on Nauru.

I think there is also a sense of deep despair underlying this. While, in fact, Nauru has been reasonably speedy in assessing their status to refugee categorisation—and that has been commendable—they have no hope for the future, because they cannot be settled anywhere. One of the key principles of the refugee convention is that there ultimately be some form of durable settlement. I think were there speedy, fair, rule-of-law based risk assessment of refugee status and a pathway to permanent settlement for these families who are overwhelmingly determined to be refugees, then we would have a system that would be more acceptable.

But the reality is that they are hopelessly stuck without any forward possibilities as things stand at the moment. That is really the challenge in addition to, of course, the conditions in which these families and children are held.

Senator HANSON-YOUNG: As the peak human rights watchdog in Australia, do you have international colleagues asking what on earth is going on and why we have a situation where children have been in detention for such prolonged periods of time? Do they question the reports around the alleged sexual assaults and abuse? Is this something that is continuing to come up in international forums?

Prof. Triggs : Yes. Perhaps as a precursor to answering that question I should make a point in answer to Senator MacDonald's question. The Australian Human Rights Commission has been elected to the body that governs or provides advice and policy guidance to the 110 national human rights institutions across the world. I represent the commission on that bureau—that is technically what it is called. My point is, in answering your question, I do have a very wide range of understanding of the international community and its concerns, at least in the human rights environment. One that particularly stands in my mind is that our closer neighbours from Indonesia, the Philippines, Vietnam and Malaysia say to me in all good faith that they have always seen Australia as a leader for human rights globally and in the region. Without wanting to attack us, they are genuinely puzzled about a country with such an outstanding human rights record—from the days of Doc Evatt in 1945 and the UN Charter and the Human Rights Declaration, all the way through to the 1990s when we were a major player in relation to the statute that created the International Criminal Court. We have been punching—if I can use that phrase—well above our weight in relation to creating this law and normative behaviour in relation to human rights. They are asking me why we are now adopting an exceptional approach to the prolonged detention of asylum seekers and refugees. Nobody really questions the right to hold children and their families for short periods of time for security, identity and health checks and so on. What they are puzzled by is why we should be complicit in treatment which is seen within the international community as cruel treatment and punishment.

Senator HANSON-YOUNG: The summary I have in relation to the report you released last week does reference the torture convention. Are you suggesting that there are elements that we are breaching in terms of the convention against torture with the detention of children who are so mentally unwell?

Prof. Triggs : Perhaps I can again begin by saying that that is initially the judgement of the United Nations rapporteur on the convention against torture. That is his view. It has of course raised that question now much more broadly. When you have someone of his credibility, based on evidence, making a judgement of that kind it is a very serious comment.

Senator HANSON-YOUNG: That judgement was made late last year?

Prof. Triggs : That is right. In fact, it was earlier.

Senator O'SULLIVAN: Do you share that view, Professor? Do you share the view that we are torturing these children? It is a reasonable question in these circumstances.

Senator HANSON-YOUNG: Excuse me, Senator O'Sullivan—

Senator O'SULLIVAN: Do you share the view, Professor, that we are torturing these children?

Senator JACINTA COLLINS: You do not need to answer that, Professor.

Senator O'SULLIVAN: She will when my time comes.

Senator JACINTA COLLINS: That is right; you need to wait for it.

Senator BILYK: It is not your time.

Senator HANSON-YOUNG: You can wait to be a pig then!

Senator O'SULLIVAN: It is outrageous!

CHAIR: It really is. Senator Hanson-Young, you have a minute.

Senator HANSON-YOUNG: Thank you. Sorry, Professor Triggs. If you could continue in response to the question.

Prof. Triggs : The view has been expressed within the international and legal environment by the United Nations appointed rapporteur on the convention against torture that the treatment constitutes cruel treatment.

CHAIR: Absolutely outrageous!

Prof. Triggs : That is the view of the United Nations rapporteur. We are deeply concerned because, of course, our job under our statute is to consider whether Australia is meeting its international obligations. That is our job. When a major international body makes an observation about the failure of Australia to comply with the convention against torture that is a matter of deep concern to us. We are certainly of the view that the evidence in relation to Nauru in particular, and in relation to children in particular, is certainly coming within an area of concern that it amounts to cruel treatment and punishment. That is, I think, a view that most within this field would support.

CHAIR: I think we should perhaps get the Human Rights Commission to attend the immigration estimates as well so we can get some balance to these quite outrageous claims. Senator Hanson-Young, you have had a good recovery from yesterday's bashing that you got over the five-year-old.

Senator HANSON-YOUNG: Excuse me!

CHAIR: We really do need some balance in this.

Senator HANSON-YOUNG: A comment like that in relation to the abuse and assault of children, Senator Macdonald, is beyond even you. I am sorry, but as the chair—

CHAIR: We had all this yesterday, when you had the relevant department here, and you were proved to be peddling lies—

Senator HANSON-YOUNG: That is not true.

CHAIR: and you are trying to recover and regain your position.

Senator HANSON-YOUNG: I am sorry, Senator Macdonald, but you are the most biased chair in the Senate.

Senator JACINTA COLLINS: I would ask you to withdraw that comment, Chair. You know 'lies' is unparliamentary.

CHAIR: I said peddling—


CHAIR: Well, peddling mistruths.

Senator McKIM: You said lies.

CHAIR: Well, I said lies. I will take that back.

Senator JACINTA COLLINS: I ask you to withdraw.

CHAIR: I will take it back—peddling mistruths. I am not sure quite what the difference is.

Senator JACINTA COLLINS: Intent.

CHAIR: This was the issue yesterday with the relevant department.

Senator HANSON-YOUNG: And the Human Rights Commission—

CHAIR: You should have taken notice of the relevant department giving factual evidence about conditions and—

Senator HANSON-YOUNG: You are a joke.

CHAIR: I am going to Senator Collins, for which I will start the clock again.

Senator JACINTA COLLINS: I will go back to the matter that I was on previously. Mr Wilson, would you please explain to me how breaking the journey on this occasion led to cost savings. I am not sure how that works.

Mr Wilson : Sure. Had I flown on Sunday night and arrived in New York City on Monday morning, I would have had to fly business class the whole way in order to make sure that I was capable of functioning for the meetings the next day. Had I moved it back to the Saturday, I would have incurred an extra accommodation cost in New York on the Sunday night. If I had flown on the Friday, I would have incurred more costs. No matter which way I did it, it did not make any difference. This allowed me to fly economy on the longest leg, from Sydney to Los Angeles, to then incur privately the cost of accommodation, to go to San Francisco, to then incur the cost of the accommodation in San Francisco and to then fly overnight and arrive in New York and be able to do my job. No matter which way we did it, there was no significant price difference for the taxpayer.

Senator JACINTA COLLINS: The difficulty I have with that explanation is that your return journey was economy all the way through, straight.

Mr Wilson : Correct.

Senator JACINTA COLLINS: So why is business class even a consideration in this?

Mr Wilson : I am not sure if you are aware, but the Remuneration Tribunal has made a determination about what travel class commissioners and the president can travel. The president can travel at a first-class rate; the commissioners can travel at a business-class rate. All I did was exercise the cost according to the standards set out by the Remuneration Tribunal and in order to make sure that I could fully functional in doing my duties as commissioner.

Senator JACINTA COLLINS: But that exercise did not apply to the return journey from Dallas to Sydney.

Mr Wilson : From Dallas to Sydney—because that was only one leg. I did Dallas, broke in Los Angeles and then did one leg from Los Angeles to Sydney; whereas, had I done it the other way continuously, it would have been two legs in succession. I am not sure of the last time you have done that leg, but it is an awfully long way to travel and then function immediately.

Senator JACINTA COLLINS: I understand that. So what you are explaining is that, on your return journey, you exercised restraint. You could have flown business but you flew economy.

Mr Wilson : Correct.

Senator JACINTA COLLINS: But, on the journey over, you also exercised restraint on the journey to Los Angeles.

Mr Wilson : Correct.

Senator JACINTA COLLINS: But, because you wanted to be able to function after your personal business when you arrived in New York, you travelled at the class at which the Remuneration Tribunal would ordinarily allow.

Mr Wilson : Because the alternative was to do it the whole way, or to incur an extra night's accommodation, which would have made up the gap.

Senator JACINTA COLLINS: Let me ask you then this, as an alternative assessment of that criteria—which is why I asked Professor Triggs earlier what process the commission itself undergoes in calculating these matters. Had you continued straight through to New York, where your first business was, the airfare would have been marginally more—I think it is only a couple of hundred dollars extra for the internal leg to Los Angeles—but, because of the way you organised your business and your personal business, it incurred roughly $1,400.

Mr Wilson : I would have to go back and verify that number because I do not have data on what comparable flights were. I know we looked at it at the time. I made a commitment that any additional costs would be incurred by me, and the price difference was no different fundamentally to either an extra night's accommodation or the cost, obviously, if we had have done a business class airfare the whole way. These things are not calculated by me. These things are calculated by bureaucrats within the commission to make sure—

Senator JACINTA COLLINS: Which is why I have asked my earlier question. But I am giving you an opportunity to explain why you organised your business in the way that you did.

Mr Wilson : The answer to that is very straightforward, Senator: I was required to be in New York on Monday. By chance, I received an invitation to a friend's wedding in San Francisco on the Sunday. I made a decision that—and I would not ordinarily have gone to it, but since I was going to be in a neighbouring city—I would incur the costs to travel and go to a friend's wedding, because it happened to perfectly time with my trip to the United States. That is what happened. I incurred all the costs associated with that.

Senator JACINTA COLLINS: But as you said, you were not necessarily in a neighbouring city. That was a change to your arrangements.

Mr Wilson : Yes I was—I was in Los Angeles on the Saturday, I travelled up to San Francisco on the Saturday, I went to the wedding, I then flew on and did activities—my normal business activities—and incurred all additional costs as deemed by the Human Rights Commission to make sure they were not out of pocket for personal activity.

Senator JACINTA COLLINS: But as you said, you did not need to break your journey in Los Angeles

Mr Wilson : Well, if I did not break my journey, then we would have incurred more costs, because in order to make sure that I was functioning in New York, we would have had to incur the full cost of a business class flight continuously—or an extra night's accommodation.

Senator JACINTA COLLINS: Yes. I wait with interest to see the Human Rights Commission response, in terms of how this relates to the guidelines. There are certainly some questions in terms of how our guidelines would apply, and I suspect there are also for the Human Rights Commission. But, with Senator O'Sullivan—

Mr Wilson : Senator, nobody at any point has advised me that there was anything wrong. This went through all the normal processes.

Senator JACINTA COLLINS: Let me go back then to your evidence to us on the last occasion, which is the commencement of all of these concerns. The first of those is that you said, 'I covered the costs associated with that'. Now that is in the past tense. We get the information, and we discover that you covered the costs the day after estimates. There may be a reasonable explanation for that, and that is what I have asked for today.

Mr Wilson : For clarity: at the time, I paid for any costs associated with accommodation. I had covered those. I always indicated to the commission, and it was always an understanding, that I would cover the costs of flights. As you may be aware, Senator, when you travel, sometimes you get given an allowance associated with costs incurred. I did not know whether the cost of the flight had already been removed from that or not. The day after, I received an invoice for the cost. I did not ask for that invoice, though it was always made crystal clear to the commission staff that I would incur that cost. As soon as I received it, I paid it.

Senator JACINTA COLLINS: And then to your evidence on the last occasion—which seems to fail Senator O'Sullivan, given his commentary—'weekends which I had to fill in'. Would you care to revisit that evidence?

CHAIR: Senator, can I just stop the clock there. It is now half past 10. Minister and Mr Moraitis, I think we need to start telling the CDPP and the Australian Federal Police that there is absolutely no chance that they will be called tonight. We have a number of senators wanting to continue on the Human Rights Commission and, under a standing order introduced into the Senate by the Labor Party and the Greens, I am obliged to continue these questions whilst anyone has questions. So for those who might be following the program, I can suggest that you can forget it. I would just ask my Senate colleagues to bear in mind that we do want to try and move on to other areas where senators also have an interest. Repeating questions time and time again ad nauseam does not really help that.

Senator Brandis: Mr Chairman, looking at the program, I dare say you are right that at least the Commonwealth DPP, who is scheduled to appear at 10 pm, is not at this stage likely to be reached. But I think, with respect, it would be a great shame if we did not reach the Australian Federal Police. It is the custom of the commissioner, Commissioner Colvin, to give this committee and, through this committee, the Australian public an update on national security and, in particular, the counter-terrorism measures the Australian Federal Police is engaged in to keep the community safe. It would be a great shame if the public were not given the opportunity to receive that information because of the self-indulgence of some senators in blowing the timetable out in relation to these questions this morning.

Senator JACINTA COLLINS: Chair, rather than respond to Senator Brandis's common insults, I would make the suggestion that, if you are concerned about the program, we reorganise the program and have the AFP appear after ASIO.

CHAIR: At the rate we are going, we are not going to get to ASIO. When is ASIO due?

Senator JACINTA COLLINS: ASIO is a hard break in the program. This gives you exactly what you have just asked for.

CHAIR: I am not sure. I guess we can have a look at that. But my response to Senator Brandis is that, unfortunately, I do not make the rules. The Senate, acting on the majority of Labor and the Greens, made the rules that questions for any agency continue whilst senators have questions. That means, as a matter of common sense, that we are not going to many things at all.

Senator O'SULLIVAN: Can I make a contribution. We have had a suggestion that children have been tortured in custody, and here we are having an hour on the holiday inn incident. Seriously! Can't you put these questions on notice? They will come back in the form that you need, and then you can raise them at the next one.

Senator BILYK: That is exactly what we are doing.

Senator JACINTA COLLINS: I may have to put questions on notice, given the amount of commentary that is occurring in my questioning.

Senator O'SULLIVAN: This is such a political indulgence.

Senator JACINTA COLLINS: Says who, given your history?

Senator O'SULLIVAN: Says me.

Senator JACINTA COLLINS: Did you learn something new over at the UN?

Senator O'SULLIVAN: I did.

Senator JACINTA COLLINS: That is good.

Senator Brandis: Senator Collins, please do not behave like this.

Senator BILYK: Senator Collins is referring to the answers she has received from questions on notice. So thank you for the suggestion, Senator O'Sullivan; that is exactly what she is doing.

CHAIR: All right. Everyone has had their bit now. But I am concerned about the program—and I am concerned about officers sitting around all day.

Senator BILYK: That is what they are paid to do.

CHAIR: No. They are paid to work—

Senator BILYK: Estimates is part of their job.

CHAIR: not sit in here listening to this circus carrying on all day.

Senator JACINTA COLLINS: We were, but—

Senator Brandis: Chairman, we are in the hands of Senator Collins. If her priorities lie as they evidently do, then that is a matter for her.

CHAIR: Mr Moraitis?

Mr Moraitis : Can I take it that the DPP will not appear? The director is based in Sydney and I think might have to fly up, so I can get to him and tell him not to fly.

CHAIR: I would be prepared to make that call. Both the opposition and the Greens had asked for the DPP to be here. They both generously indicated that, in the circumstances, you can tell the CDPP not come down from Sydney tonight because there is little prospect of him being called today. Senator Collins, unfortunately, I messed it up. I think you had about six minutes, but I am giving you another eight minutes to complete your—

Senator O'SULLIVAN: Why are you so generous?

CHAIR: I am just a generous guy.

Senator JACINTA COLLINS: So I have eight minutes remaining of the time that you chose to break to deal with 10 minutes of commentary. Is that right?

CHAIR: That is right.

Senator JACINTA COLLINS: Can I ask that in the future, Chair, you make your commentary in the break between questions.

Senator Brandis: I can see your graciousness is being reciprocated, Senator Macdonald!

Senator JACINTA COLLINS: Just concluding on that last matter—and you may need to take these on notice—the travel costs you gave us included fees for variations. I would like to know what they are.

Mr Wilson : Sure. I do not know what they are either. I will take that on notice.

Senator JACINTA COLLINS: As you have indicated, in some parts the accommodation related to accommodation by a third party. Professor, it made me wonder, in terms of declarations of interest, what applies in relation to yourself and commissioners at the Human Rights Commission in relation to any benefits you receive as commissioners?

Prof. Triggs : We all have to declare any possible either conflict of interest or a gift or opportunity; that has to be properly recorded and reported. We are very careful to make sure that that is met, especially as so many of us do a lot of public speaking. We do get a lot of gifts, so we have to check that very carefully.

Senator JACINTA COLLINS: Where are those reports made?

Prof. Triggs : They are within the commission. I think we report to the Attorney-General's Department, but again I can take that on notice and show you how frequently we report on what might be seen as advantages of one kind or another.

Senator JACINTA COLLINS: Perhaps you could provide me with such reports for the last two years on notice.

Prof. Triggs : Certainly.

Senator JACINTA COLLINS: Unless that is burdensome.

Prof. Triggs : No, not at all. We will be very pleased to do it. It is kept up as a matter of course. We keep full records of anything that might be—I forget the exact amount, but it is $50 or something in that area.

Senator JACINTA COLLINS: Mr Wilson, on the last occasion you advised us that you had resigned from the Liberal Party.

Mr Wilson : That is correct.

Senator JACINTA COLLINS: Can I ask you to explain why you felt that was necessary?

Mr Wilson : Because I was asked by the Attorney-General to do so.

Senator JACINTA COLLINS: The current Attorney-General?

Mr Wilson : Correct.

CHAIR: I am not sure that that is an estimates question.


CHAIR: What has it got to do with—

Senator JACINTA COLLINS: Senator Abetz asks them all the time.

CHAIR: Well, the fact that Senator Abetz asks them does not make them correct. It has little to do with the expenditure of money in this department and in the Human Rights Commission.

Senator JACINTA COLLINS: It has a lot to do—which is obviously why Senator Abetz asked it—with the standing of the Human Rights Commission. Would you agree with that, Professor Triggs?

Prof. Triggs : I am sorry, with what?

Senator JACINTA COLLINS: The Attorney-General's request that Mr Wilson resign his membership from the Liberal Party in relation to matters around the standing of the Human Rights Commission.

Prof. Triggs : I do not really think that is a question I can appropriately answer, frankly. I am sorry, Senator Collins, but I think it is a matter of judgement as to whether or not it is necessary to give up one's political affiliations.

Senator Brandis: With respect, Senator Collins, I do not think it is fair to the committee—or to the witness, for that matter—to ask a question of the witness that invites her to comment on the appropriateness of your questions, which is what you just did.

Senator JACINTA COLLINS: I asked a question related to the standing of the Human Rights Commission. Certainly, Attorney, if you would like to elaborate on why you made that request it might take us a step further.

Senator Brandis: I am in your hands, Mr Chairman. I am prepared to answer the question, but if it is out of order then it is out of order. It is a matter for you.

Senator O'SULLIVAN: It is out of order. The whole thing is out of order.

CHAIR: Can you demonstrate how this is relevant to estimates?

Senator JACINTA COLLINS: Very easily. The way in which this is relevant to estimates is that the Human Rights Commission is starting to look like the holding pen for Liberal Party candidates. First of all, we have Mr Wilson's name being raised for every federal parliamentary vacancy in Victoria, including potential future ones such as Goldstein, despite the fact that he has given up his Liberal Party membership, and then we have stories around Peta Credlin being appointed to the Human Rights Commission.

CHAIR: You just assured me that my ruling that the question is out of order is correct.

Senator BILYK: But then you do not want to hear it.

CHAIR: Ms Ryan has been an exemplary commissioner—

Senator O'SULLIVAN: Hear, hear.

CHAIR: But we all know that she is a former Labor Party politician, and we do not want to go back and ask her which branch meetings she might attend as a guest or otherwise. I do not know their political affiliations, but I am sure other commissioners have done things. We have been through this before. This is turning into witch-hunt, Senator Collins—

Senator JACINTA COLLINS: I take offence at that.

CHAIR: Well, it is turning into witch-hunt.

Senator JACINTA COLLINS: You are being offensive and you should withdraw that.

CHAIR: I am not withdrawing it and I am not being offensive. I am being accurate.

Senator JACINTA COLLINS: You should withdraw that statement. It is unparliamentary and it should be withdrawn.

CHAIR: It is not unparliamentary and it has never been ruled to be unparliamentary.

Senator JACINTA COLLINS: Witch-hunt has been ruled to be unparliamentary. I would ask that you take the Clerk's advice on that.

CHAIR: I will take my own advice.

Senator JACINTA COLLINS: No, you should take advice from the Clerk—you are the Chair.

CHAIR: I had stopped the clock. I am going to re-start it. If you have other questions, ask them, otherwise we will move to another senator.

Senator JACINTA COLLINS: I do have other questions.

CHAIR: You have three minutes left—a generous three minutes, I must say.

Senator JACINTA COLLINS: Chair, I suggest we break and have a meeting of the committee around the tea-break to further discuss this matter before I go to further questions. Your behaviour as chair is outrageous, and I asked that we suspend the committee—

CHAIR: If you do not have other questions I will move to Senator O'Sullivan.

Senator JACINTA COLLINS: I do have other questions.

CHAIR: No, I invited you—

Senator JACINTA COLLINS: I have other questions.

CHAIR: I invited you, and you embarked upon an attack on the Chair.

Senator JACINTA COLLINS: I made a point of order.

CHAIR: You did not say 'point of order' and you did not indicate that it was a point of order.

Senator JACINTA COLLINS: For goodness sake, Chair, this is becoming a farce.

CHAIR: Senator O'Sullivan?

Senator BILYK: Senator Collins has requested a private meeting. You cannot just ignore it.

Senator JACINTA COLLINS: You cannot just take the call to ask questions off me in that fashion, Chair.

CHAIR: You were invited to ask questions and did not. I therefore assumed you had no more questions to ask.

Senator JACINTA COLLINS: I raised a point with you in that process—

CHAIR: You did not raise a point of order.

Senator JACINTA COLLINS: You cannot move estimates on in that fashion. Your behaviour is a farce.

CHAIR: Senator Collins, you are entitled to your own opinions, but don't bore this committee with them, thank you. Senator O'Sullivan?

Senator JACINTA COLLINS: It is time for morning tea.

CHAIR: I will come back to you—

Senator JACINTA COLLINS: It is time for the break for the morning tea. It is 10:45, which is the scheduled break time.

CHAIR: On that basis I will suspend the hearing for 15 minutes.

Senator BILYK: Are we having a private meeting?

Senator JACINTA COLLINS: Are we having a private meeting?


Proceedings suspended from 10:47 to 11:10

CHAIR: I welcome everyone back to the Senate Legal and Constitutional Affairs Legislation Committee budget estimates additional hearings. Our apologies; the committee just had a private meeting. Senator Collins, I will go back to you for your final three minutes and then Senator O'Sullivan.

Senator JACINTA COLLINS: Mr Moraitis, was Ms Credlin one of the 70 people from whom an expression of interest was sought?

CHAIR: That is not an appropriate question. We do not normally—

Mr Moraitis : As a general proposition, I would rather not comment on individuals.

Senator Brandis: With respect to my secretary, I would like that question answered—merely to correct an erroneous media report. The answer is no.

Senator JACINTA COLLINS: Attorney, can you please describe for me precisely what was erroneous in the media report.

Senator Brandis: It was reported that she was under consideration and she was not.

Senator JACINTA COLLINS: She was never under consideration?

Senator Brandis: No.

Senator JACINTA COLLINS: Going back to that earlier discussion around Mr Wilson's invidious situation, he has done the right thing in the sense that he responded to Senator Brandis's request that he resign from the Liberal Party. There has been ongoing commentary around whether he may be a candidate for one preselection after another, which may be completely outside his control. I think the circumstances are quite different in relation to the other commissioner who you raised, Senator O'Sullivan, because Senator Ryan is past her political career and it is not an issue of whether she is going to seek future selection. But I would like to ask Mr Wilson—

Senator O'SULLIVAN: I did not raise any issues with Ms Ryan, I promise you. I have the greatest respect for Commissioner Ryan on every level.

Senator JACINTA COLLINS: Maybe it was the chair who raised it.

CHAIR: It was me who raised it.

Senator JACINTA COLLINS: Mr Wilson, have you considered that perhaps your only option here is to completely rule yourself out of any selections whilst you occupy your current role?

CHAIR: That is outrageous.

Mr Wilson : I do not engage in hypotheticals.

Senator JACINTA COLLINS: It is not a hypothetical. I said: 'Had you considered.'

Mr Wilson : Had I considered that option?


Mr Wilson : No, I had not considered that option.

Senator JACINTA COLLINS: Can I ask you to?

Mr Wilson : No. Well, you may ask me, but I will not engage in hypotheticals about what I would do in the future.

Senator JACINTA COLLINS: It may be the only way for you to avoid ongoing commentary about whether you will be a future political candidate.

CHAIR: I am sorry. I am ruling this—

Mr Wilson : People will write what they will write, even if I said something—

CHAIR: I am ruling the question out of order. That is far beyond the purview of Senate estimates committees. I am sorry. Individual people deciding their own individual future is not a matter for this committee.

Senator JACINTA COLLINS: Appointing people who are ongoing political candidates is a problem for the standing of the Human Rights Commission.

Senator O'SULLIVAN: Jesus! That coming from the Labor Party—that is outrageous.

Senator JACINTA COLLINS: What example are you referring to, Senator O'Sullivan?

Senator O'SULLIVAN: I have hundreds. We do not have time for this.

Senator JACINTA COLLINS: No, of course, because you cannot think of one.

Senator Brandis: Senator Collins, at the time I approached Mr Wilson to consider appointment as the Human Rights Commissioner, which was in late 2013, I do not think it would be accurate to describe him as an ongoing political candidate. He was a member of the Liberal Party at the time. I recommended that were he to accept the appointment he should resign as a member of the Liberal Party. Your characterisation of him as an ongoing political candidate at the time he was appointed is inaccurate.

Senator JACINTA COLLINS: How many selections would it take for him to become one? So far we have had Senator Ronaldson, we have had Dunkley and we have had Goldstein. How many would it take?

Senator Brandis: If you had listened to the answer you just received from Mr Wilson—Mr Wilson has never stood for preselection.

Senator JACINTA COLLINS: I did not say that. I was referring to the commentary and what it does for the standing of the Human Rights Commission.

Senator Brandis: Nobody can be held responsible for commentary that might be written about them. The fact is that Mr Wilson has never been a parliamentary or a preselection candidate for any party, ever.

Senator JACINTA COLLINS: That is why it would assist him to rule himself out very clearly.

CHAIR: It is not an appropriate question and I am not allowing it. Those sorts of things are, in fact, an imposition on people's human rights, I would have thought. I am not allowing it as an estimates question.

Senator O'SULLIVAN: I want to pursue this absolutely outrageous suggestion that somehow these children in detention are being tortured, but before I do so, as I understand it a matter was before the High Court last week in relation to children in detention. Was the court burdened with any question about the circumstances of their confinement?

Senator Brandis: I think you must be referring to the High Court's decision last Wednesday in the M68 case, about which I took a question in the Senate on Wednesday afternoon.

Senator O'SULLIVAN: The M68 case, yes.

Senator Brandis: I think it is probably useful to the committee to point out one important aspect of the court's decision in that case. I listened to Senator Hanson-Young's questions to the President, and I listened to the President's answers and the President's reference, in particular, to a report in December—I think it was by the UN Special Rapporteur. It was not perfectly clear to me, but I gather from some of the questions that Senator Hanson-Young asked that they were an intended reference to the detention of children in the regional processing centre in Nauru. One of the central issues in the M68 case is whether those people—adults and children—being detained in Nauru were being detained by Australia. The High Court resolved that question by a majority of four to three. The High Court decided unequivocally that people being detained in Nauru under a memorandum of understanding between the government of Australia and the government of Nauru are not being detained by Australia. So to the extent to which the report of the UN Special Rapporteur in December may have been premised on the assumption that those people were being detained by Australia—and the law was not resolved at that time, in December—and the extent to which any question or answer is premised on the basis that people being detained on Nauru are being detained by Australia, that may no longer be said.

That was an issue of political contention until last week. It is now beyond contention because as you, Mr Chairman—who, among your other accomplishments, are a lawyer—know, and as many of us at this table who are lawyers know, there is one thing that is absolute in this country. That is that when the High Court decides the law, then that is the law. The High Court has decided as a matter of law by majority—the Chief Justice, Justice Kiefel, Justice Nettle and Justice Keane—that the regional processing centre arrangements on Nauru do not constitute detention by Australia, and that is the end of the matter. Any suggestion to the contrary is at variance from the settled law.

Senator O'SULLIVAN: Thank you, Attorney. In view of that position articulated by the Attorney, could I ask you, Professor: when you make reference to children in detention, are you referring to children in detention under the powers of Australia, or are you referring to children in detention somewhere else?

Prof. Triggs : Our mandate under the statute of the Australian Human Rights Commission is to assess compliance by Australia with its international legal obligations—in particular, the Convention on the Rights of the Child. When we make our reports we are referring all the facts, evidence, medical evidence back to the standards of, in particular, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

Senator O'SULLIVAN: But are your references to children who are detained by another sovereign entity in view of the Attorney's comments?

Prof. Triggs : In our report The forgotten children we did deal with the complaints that we received from the refugees in Nauru to the commission. We have been attempting to conciliate those complaints and we have reported to parliament accordingly, as you will doubtless know.

Senator O'SULLIVAN: But do you accept the High Court's decision that these children are detained, to use the word, by another sovereign nation?

Prof. Triggs : As the Attorney has quite correctly said, the High Court, in a six to one decision, has made some clear rulings as to Australian law and, of course, I fully respect and accept the views of the High Court on Australian law. But it is not my job to comment on that—although I will, obviously, as a lawyer. My job as President of the Human Rights Commission is to comment on our compliance with international law and our international treaties.

Senator O'SULLIVAN: Are you suggesting that Australia has some burden via some treaty we have signed to impose themselves on the activities of another sovereign nation?

Prof. Triggs : We will be looking at the full implications of jurisdiction when we have had a chance to really go through in fine detail the views of the High Court. But we will always, of course, fully respect the views of that court and interpret our statute accordingly.

Senator Brandis: Senator O'Sullivan, I am a little surprised that the Human Rights Commission has not studied the reasons in full yet. But I can advise you—because I have—that, as Professor Triggs rightly says, it was a six to one decision. But of those justices that comprised the majority—the six—two were of the view that, on the proper construction of the memoranda of understanding on the regional processing centre arrangements, Australia was involved in the detention of children on Nauru. But four of the six—in other words, four of the seven members of the court, a majority—decided unequivocally, because the issue was squarely raised in the case, that that was not so—that the children were detained by Nauru, not by Australia.

Senator O'SULLIVAN: Then can I direct my question to you—and I will come back to the professor. Attorney, can you think of a circumstance where the sovereign nation of Australia has an obligation, or an ability even, to impose its will upon another sovereign nation due to a treaty or international arrangement that it may have arrived at itself?

Senator Brandis: Basically, no, but it would depend on the terms of the arrangement or the treaty. There is a memorandum of understanding between Australia and Nauru which undergirds the regional processing centre arrangements. The effect of that memorandum of understanding is that Nauru accepts, in defined circumstances, people claiming to be refugees and processes them on Nauru according to the law applied by that sovereign nation. The people—children or adults—are not detained by Australia. They are detained by Nauru, and they are dealt with by the law of Nauru. That is the position. That is the position that the government has always maintained. I can understand—and Senator Hanson-Young and I disputed this in debate in the chamber last year—that there was a political argument about whether that was a proper characterisation of the arrangements, until the High Court pronounced definitively what the legal character of the arrangements was. But if you look at the relevant passages of the joint judgment of the Chief Justice and Justices Kiefel and Nettle, on the one hand, and the judgment of Justice Keane, on the other hand, they are unequivocal about that point.

Prof. Triggs : I wonder if I could just clarify this for the record: of course the Australian Human Rights Commission, and I personally, have read the judgment, and we have a description of what that judgment is, and our conclusions from it are now publicly available on our website. But we will be looking in the future at what the implications of that judgment might be for jurisdiction over Nauruan matters that we have continued to receive from those who are held there.

Senator O'SULLIVAN: All right. Let me go back to what attracted my interest to this issue. I had asked you the question, and you did not have the opportunity for an answer. Do you believe that in the circumstances in which children have been detained in Nauru, or at any other centre where you believe we may have influence or an arrangement, they are being tortured?

Prof. Triggs : We have never, ever made that assertion.

Senator O'SULLIVAN: You made reference to commentary that it occurred, with an international expert who suggested it was torture. Do you disagree with the position expressed by that individual?

Prof. Triggs : I am afraid you are misstating the view of the United Nations rapporteur. There is a difference between torture and cruel punishment, and his view—and, I understand, the view of others with the UN system at senior levels—is that the treatment of the children, in respect of Nauru in particular, constitutes cruel punishment. That is the view. He has not said that it constitutes torture within the convention; it constitutes cruel and unusual treatment or punishment—also under other conventions which are particular to our jurisdiction, because the torture convention is not part of my jurisdiction. The International Covenant on Civil and Political Rights and the Convention on the Rights of the Child also protect against cruel treatment.

Senator O'SULLIVAN: So do you agree with the position expressed?

Prof. Triggs : I am not answering questions on the run like that. I am not making judgements of that kind. The commission has been very, very clear in our views to parliament—and I hope you have read those reports—that there are instances in which the treatment of some particular children in particular cases has constituted cruel treatment.

Senator O'SULLIVAN: So it was a generalisation. You have been—

Prof. Triggs : Generalisations are not a good idea. We deal with individual complaints and cases.

Senator O'SULLIVAN: Well, it would seem that the comment that we are referring to is a generalisation.

Prof. Triggs : By a UN official, not by me and certainly not by any member of the Australian Human Rights Commission.

Senator O'SULLIVAN: Professor, do you know why these children are still in detention?

Prof. Triggs : They are there in detention because of Australia law.

Senator O'SULLIVAN: But did you happen to listen to the evidence yesterday relating to why these children are still in detention?

Prof. Triggs : Of course I speak and have close working relationships with the department, and we explore these—

Senator O'SULLIVAN: So I come back to my question: what is your understanding of why the children are still in detention?

Prof. Triggs : My job is to comment on the law, not on the policies. My job is to understand why these children are held, and that is because of the law. They are held because they are required to be held.

Senator O'SULLIVAN: But that is what I am probing—why are these children held? I am asking you what your knowledge is as to why they are still held in detention.

Prof. Triggs : They are being held because the legislation requires that they be held.

Senator O'SULLIVAN: No. That is not the evidence that has been before this committee. The evidence before this committee is that, in almost every case, they are held because there is a serious issue with the parent, or a parent or both parents.

Senator HANSON-YOUNG: Actually, the evidence was that that was seven children.

Senator O'SULLIVAN: No, don't you interrupt. You have had a view about that earlier.

Senator HANSON-YOUNG: Seven children out of 90.

Senator O'SULLIVAN: Are you aware with the position that, in most of these cases, the children, if they were to be released, would be separated from the parental environment—their mother and father, their mother or their father.

Prof. Triggs : There is no doubt that the very small number of children that are held because of an ASIO determination in relation to the parent are extremely difficult cases, and we, of course, talk regularly with the department about management of those cases. We, of course, understand that there are reasons why the department would have to be cautious, and certainly would not want to separate the families. But, overwhelmingly, these children are not from families subject to ASIO negative assessments.

Senator Brandis: Can I add to Professor Triggs: of course some of these children are newborn babies, too, who have to be with their mothers. The position of the children is a function of the position of the parent—in that case, the mother. I think, Senator, if I may, context is everything here. At the moment, the number of children, including babies, is fewer than 90. I think Professor Triggs used the expression 'exceptional cases'. To put this into context, during the period in which the policies that allowed the people smugglers to flourish were in place, some 8,000 children were in detention at one time or another. At the peak of that period, in about August of 2013, there were 1,992 children in detention at the same time; and over six years, 8,000 at one time or another. Today, there are fewer than 90 in the exceptional circumstances, of which you have heard.

Senator O'SULLIVAN: Can I have one clarifying question; I know the clock has gone. If there is any possibility, before I return to you again, Professor, would you be able to arrange for one of your staff to just look at the Hansard of yesterday, where the evidence of Mr Pezzullo and Ms Moy, who administers this part for the department, indicated that the majority of the cases had to do with security issues—the majority, not a minority.

Senator Hanson-Young interjecting

Senator O'SULLIVAN: So if you want to have a look at the Hansard; I will try to have my staff do the same so that we can have the benefit of it, because—

Senator HANSON-YOUNG: As to why? Seven children.

Senator O'SULLIVAN: You withdraw that. You withdraw what.

Senator HANSON-YOUNG: Withdraw what?

Senator O'SULLIVAN: She told me it was a lie—that I am making a lie.

Senator HANSON-YOUNG: That sounds pretty unparliamentary.

Senator O'SULLIVAN: Professor, would you be able to just see if you could do that over the break. If not, I will try to make the arrangement to have a copy of it for you.

CHAIR: I think I will go back to Senator Collins, then Senator Canavan and then Senator Hanson-Young, or someone from the Greens.

Senator HANSON-YOUNG: Senator Siewert, it will be.

Senator JACINTA COLLINS: Attorney, you mentioned that the media reporting in relation to Ms Credlin being a candidate for the position of Sex Discrimination Commissioner was erroneous. Did you discuss with anyone the possibility of appointing Ms Credlin?

Senator Brandis: Yes, I did say that. Ms Credlin was never a candidate. She never sought to be a candidate. She was never under consideration.

Senator JACINTA COLLINS: Did you discuss that possibility with anyone?

Senator Brandis: No.

Senator JACINTA COLLINS: Do you have any knowledge that her candidacy was discussed with the Prime Minister?

Senator Brandis: No.

Senator JACINTA COLLINS: Chair, that concludes my questions for the Human Rights Commission.

Senator CANAVAN: I have just had some advice on the earlier questioning about the question on notice issued in regard to the human rights report, which I now have a copy of. Apparently it was not accepted properly by the committee, and that is why I did not have a copy of it and it was not sent to my office. I have had a look at since. Before I get to the report, Professor Triggs, earlier you mentioned that countries we would like to compare ourselves to have adopted same-sex marriage. What are the countries we would like to compare ourselves to?

Prof. Triggs : Which are the countries we would like to compare ourselves to?

Senator CANAVAN: Yes. That was my—I think you said directly we'd like to—

Prof. Triggs : We are usually quite comfortable—this is my personal view—the countries we are usually happy to be compared with typically are common-law countries, but not always, but ones we would always mention are the United Kingdom, the United States, New Zealand, Ireland, Canada and, in terms of civil-law countries, large parts of Europe. We do not model ourselves necessarily on those jurisdictions, but we always try to get some comparative idea of what the legislation is, what the trends and developments are within those jurisdictions and then we see the extent to which they might apply usefully in Australia.

Senator CANAVAN: None of those countries are Asian countries. Does that mean we would not like to compare ourselves to Asian countries in regards to human rights?

Prof. Triggs : It depends on the area of law. There are some areas of law—for example, Singaporean law—that we would look to on a number of issues. For example, on the death penalty issue we look at the practice of the Asian region, where there is pretty well a de facto moratorium on the death penalty for most of those jurisdictions, and Australia has of course been very interested in using that comparative practice to support Australia's own position in arguing against the death penalty. It is purely an example, but regional practices can sometimes be of importance to Australia in promoting an argument that we would like to make in the international community.

Senator CANAVAN: Those European countries, the UK, the US—I don't think you mentioned it, but Canada as well—are they sort of like the high bar or the high-water mark for human rights in the world?

Prof. Triggs : Not necessarily. It would depend on the particular issue. As I say, we would usually wants to compare their laws and jurisprudence for interest in seeing whether we measure up to those standards, whether we are further advanced, as we sometimes are, than those jurisdictions or whether we can learn something from them and, particularly, for example, the jurisprudence of the European Court of Human Rights or the United States Supreme Court and other major regional bodies.

Senator CANAVAN: Help me out with this evolving practice, jurisprudence, which you mentioned earlier. I think earlier we established that there are 20 countries that have adopted same-sex—

Prof. Triggs : Approximately.

Senator CANAVAN: Yes, 19 or 20—maximum 20, countries that had adopted same-sex marriage out of 166 signatories to the—

Senator Brandis: 168.

Senator CANAVAN: Sorry, 168 signatories to the ICCPR, which works out at around 12 per cent. How is that an evolving practice? What is the threshold—is it six per cent, eight per cent? 12 per cent seems to me to be a relatively low number. How does that constitute an evolving practice?

Prof. Triggs : We would look at what would be the practice of states whose legal systems we most respect. To the extent that that weighs heavily as a credible position—

Senator CANAVAN: Are you saying that we do not respect the legal systems of our close neighbours in Asia?

Prof. Triggs : Of course we do.

Senator CANAVAN: That does not quite help me then, if we respect all of those legal systems then why would we have some countries that are signatories to the ICCPR in one bucket, which we like to follow, and the countries that we ignore?

Prof. Triggs : One very good reason for that is that a very high number of countries in the Asian region are not parties to the International Covenant on Civil and Political Rights. If we—as we obviously are at the Human Rights Commission—looking at the standards of that covenant, we would want to look at the practice of those states that have ratified that treaty.

Senator CANAVAN: I do not have the full list of the 168 countries that have signed, but I presume it is a relatively large proportion of the total number of countries in the world, so I would have thought that there are many Asian countries—

Prof. Triggs : There are some, but if one were to look at —

Senator CANAVAN: Is Japan a signatory?

Prof. Triggs : Japan has signed that—

Senator CANAVAN: Is South Korea?

Prof. Triggs : I am not sure about South Korea.

Senator CANAVAN: In relation to the this Universal Periodic Review process, which we have made a submission on in terms of Australia, my understanding is that we can make submissions on other countries as well—is that correct?

Prof. Triggs : Yes.

Senator CANAVAN: Has the Human Rights Commission made other submissions in regards to other countries before?

Prof. Triggs : We do not have status to make comments about other countries—

Senator CANAVAN: Only governments can—

Prof. Triggs : But the Australian government has status to do that, we do not.

Senator CANAVAN: So you will not be making a submission when Japan is up for review, saying that they should be condemned that they do not have same-sex marriage, even though you believe that is a fundamental human right.

Prof. Triggs : That is a matter for the Australian government and I am certain that the Australian Human Rights Commission does not have a mandate to make observations about other countries.

Senator Brandis: It is clear that the Human Rights Commission does have a view on this issue, that is a policy view. As I understand from Professor Triggs's evidence earlier in the day, that is not a view that the Human Rights Commission takes of international law. As Professor Triggs has talked about the evolution of international law, I must say, I would not have thought that the domestic law of about 19 or 20 of the 168 countries would be enough to constitute a principle, or anything like a principle, of customary international law in relation to any particular issue.

Senator CANAVAN: Thank you minister. I want to ask a little more about what the Universal Periodic Review is, and about your submission to it. On your website you have a section: What human rights issues may be considered in the UPR? You have a list of things including: the Charter of the United Nations, the Universal Declaration of Human Rights, human rights instruments to which a country is party, voluntary pledges and commitments made by countries, and international humanitarian law that applies to the country. You then go on and list the human rights treaties that we are a party to. Earlier you mentioned that we have no obligation under those international treaties to change a marriage act in favour of same-sex marriage; therefore, on what basis have you made that recommendation in your submission—given that on your own website you only mention that the UPR is a process to assess the extent to which governments are meeting their obligations under these things? If we have no obligation under these things, why would you make a recommendation in that regard?

Prof. Triggs : I am sorry, I really do not understand your question. We have a right to put in a report in relation to—

Senator CANAVAN: I am not disputing that, and if this was a report that you had put out generally—like you did in 2012 with the report you provided to us—but that is not my question, my question goes to the submission you have made to the UPR process. On your own website you say that the UPR process is: 'about assessing the extent to which government's respect human rights, including their obligations as set out in…' and you only list humanitarian law or international treaties. You have said that there is no obligation under those treaties or humanitarian law to change a marriage act, so why would you make a recommendation that goes beyond those obligations in this process?

Prof. Triggs : I would like to hand over to my colleague, Tim Wilson, but, very briefly, firstly, I think the Attorney has accurately stated the customary law position and I fully support his analysis. Secondly, in the UPR process we are commenting only on the Australian position and on our view of the meaning of 'equality' before the law under the International Covenant on Civil and Political Rights. Mr Wilson has a much greater depth of understanding of this field than I do and he is primarily responsible for this within the Australian Human Rights Commission. I would like to pass to him.

Mr Wilson : When it comes down to it, Senator, this is an evolving area of law, because at the time in which the treaties were negotiated there was no particular reference to gay and lesbian or same-sex attract people. They continue to be silent in international treaties because it is still an area of contention within the law. If you go for instance, to a country or a nation in the Asian region—say, Malaysia—you can still be locked up for the crime of consensual sexual activity. Another signatory to the International Covenant on Civil and Political Rights is Iran. They ratified it in 1976. They continue to murder people, as far as I am concerned, on the basis of people's sexual orientation. It is a complex, evolving area of law, but in practice, for countries where it is no longer illegal for people to engage in consensual sexual activity—

Senator CANAVAN: Can I bring you back, Mr Wilson. The chair is very disciplined—and, may I say, one of the most disciplined chairs of any standing committee—and I have limited time. I am not asking about rights of a sexual orientation. I am asking about the rights or perceived right to marry. While you are right that the ICCPR appear silent on some of the issues you have just raised, it actually defines the right to marry in terms of a man and a woman explicitly. I think you can understand that, and as we have gone—

Mr Wilson : It says men and women are free to enter into a marriage.

Senator CANAVAN: Yes. As we have gone over before here, the case law has interpreted it in that way. My key question is: if this UPR process—as you have said on your website—is about assessing our obligations under international human rights law and under the treaties we have agreed to be bound by, why would you make a recommendation which, you have admitted earlier, goes beyond our obligations under those treaties? What relevance does that have to the UPR process?

Mr Wilson : The relevance is that, under the provisions of the International Covenant on Civil and Political Rights, we have an obligation to meet equality before the law. This is a civil tradition that we are talking about. We are not talking about a religious tradition.

Senator CANAVAN: Just to be clear for me, that equality under the law has nothing to do with ICCPR that you are referring to just then, has it?

Mr Wilson : No, I am saying that there is an obligation—

Senator CANAVAN: I am getting really confused, because in the paper you have written that I had up earlier and that you provided to this committee you say—

Mr Wilson : I am stating my view, Senator.

Senator CANAVAN: Honestly, with all due respect, Mr Wilson, I am not that interested in your view, because you are here as part of the Australian Human Rights Commission. I am interested in the commission's view, and in particular the view it is putting publicly, assessing our government's record on human rights, and you say, as the Human Rights Commission:

The United Nations Human Rights Committee has concluded that the ICCPR does not prevent the recognition of same-sex marriage, rather the ICCPR does not impose a positive obligation on states to do so.

Mr Wilson : Correct.

Senator CANAVAN: I think earlier you agreed to that statement. There is no positive obligation for states to do so. So on what basis have you gone beyond our obligation under the international human rights law to criticise Australian government practice in an international review of our human rights record?

Mr Wilson : In the end, it comes down to an evolving area of law and different interpretations. We know there are different interpretations. That is not in contest.

Senator CANAVAN: Look, we are probably not going to get much further here, but I find that you seem to be stepping into more of an activist role than a judicial role on your own website. Can you hear me out. Professor Triggs, on your own website, you say that you are assessing Australia's performance under the national human rights law and our obligations under the various treaties we are signatories to. You are using lots of legalese to argue that we should actually be criticised internationally for not doing something that we are not actually obligated to do under those instruments.

Prof. Triggs : As the Attorney has pointed out, we have a number of functions under our statute, and one of those functions is to be precise as to the law that Australia is bound by, but another of those functions is advocacy. One of the purposes of the UPR is to talk about where Australia might take more proactive action in the future, and so it is therefore also a place in which one can both state the law and also explain where we believe, as a human rights advocacy body—which we are mandated to do under our statute—we might also include the argument that our interpretation of equality before the law means that all Australians should have access to marriage. That is what we are doing in that report.

Senator Brandis: Senator Canavan—if I may say so—I think this discussion is a very good example of the difference between human rights and human rights law. There are those who say that the two are effectively identical—that what human rights lawyers say are human rights is a definitive question and a legal question. That has never been my view. My view, as I have expressed many times, is that issues about what comprises human rights are essentially questions of political philosophy and values, and it is not, as it were, a lawyers' closed shop or monopoly to decide what human rights are or to choose between them where there are arguably inconsistent human rights. The Australian government does not take legal advice from the Human Rights Commission. It is not constituted as a body to offer views about the law, although its views of the law will sometimes be incidental to its advocacy function. But it is perfectly entitled to, as it does, take a view about certain human rights issues.

The Human Rights Commission does take a view about same-sex marriage. It is a view that is espoused by Mr Wilson, as the Human Rights Commissioner, and I know shared by Professor Triggs, and I think I can say it is the corporate view of the Human Rights Commission. That is not a view about the law. It is not a view about international law. It is a view about the policies that, in the view of the Human Rights Commission, Australia should adopt. In arriving at that conclusion, the Human Rights Commission is entitled to, as it does, have regard to the legal position in other jurisdictions.

Lastly, if I can be helpful, I have just looked at the ICCPR. Among the Asian parties to the ICCPR are Afghanistan, Bangladesh, Cambodia, East Timor, India, Japan, South Korea, Laos, Pakistan, Papua New Guinea, Sri Lanka, Thailand, Vanuatu and Vietnam.

Senator CANAVAN: Thank you for that, Minister. That is certainly my view as well on that distinction. Ms Triggs, you said one aspect of the UPR is—and it has been so long since the answer that I am paraphrasing—to advocate for progress on this area. On your website, though, where you have got a whole page devoted to the Universal Periodic Review on human rights, where does it say that? I have not read every word, but my reading of the relevant sections of that page indicates, as I said earlier, that the UPR is about assessing our compliance with obligations that we have signed up to, not going beyond and progressing human rights in a political philosophy sense as Mr Brandis said. As I ask that question, can I say I have no issue with the fact that you do have a statutory right to advocate on generic human rights issues. My question specifically goes to your submission, to what is an international review of our record and one in which you do not seem to indicate has the scope to do what you have recommended in this area.

Prof. Triggs : I will certainly be happy to take your question on notice.

Senator CANAVAN: Thank you.

Senator SIEWERT: I have questions for Mr Gooda and Ms Ryan. First off, I want to say how much I enjoyed reading your latest report last year. I think you raised some really important issues. I have some questions coming out of that, both for you and for Ms Ryan. I want to go to the issues first of disability and issues that you brought up about Aboriginal people with disabilities. I am wondering, first off, if you have looked at some of the issues around—I am addressing this to both of you—employment of Aboriginal people with disability. We know we have got poor outcomes in the broader community, and I am wondering if there are some specific points for Aboriginal and Torres Strait Islander peoples.

Mr Gooda : I have mentioned before in estimates about how the commission works. It is really intersectional with Commission Ryan carrying out the inquiry into employment for people with disability and aged people. We always ensure that the Aboriginal perspective is taken into account. On several occasions, I will co-convene a consultation process with Commissioner Ryan. We have done that a few times around Australia, just to make sure the issues involving Aboriginal and Torres Strait Islander people are well and truly canvassed in Commissioner Ryan's inquiry. We had a particularly big roll-up at Redfern a few months ago, and it went over time. People were interested in raising it. But, generally, it is one of those issues that fall through the crack with disability in the Aboriginal and Torres Strait Islander community. After discussions with the First Peoples Disability Network, that is why I decided to highlight the plight of Aboriginal and Torres Strait Islander people with disability in my report last year.

Senator SIEWERT: I also specifically noted the point you made about the NDIS and the issues that need to be addressed for Aboriginal people. I am particularly asking about employment because of some of the policies that we have seen. I want to get to those in a minute. Commissioner Ryan, I was going to ask for a general update about your inquiries into both older Australians and people with disabilities. Are there any issues that are specifically coming out around employment for Aboriginal and Torres Strait Island people with disability, as opposed to the broader community of people with disability?

Ms Ryan : Yes, there are issues. I am sure you will not be surprised to hear that the challenges facing people with disability in general to get and keep employment are multiplied when there is another factor of prejudice or discrimination, as in the case of Aboriginality. I have been greatly assisted by Commissioner Gooda in who to contact and who to invite to discussions and consultations. As Commissioner Gooda said, he has co-convened some of our major consultations aimed specifically at Indigenous people. Race discrimination, which many Indigenous people still experience when they try to access employment, complicates and adds to disability discrimination.

We are looking more broadly in the inquiry at what our education and training systems offer people with disability in preparing them for the workforce. In school-level education, it is a very uneven picture—as the senators would be aware because there has recently been a Senate inquiry into that very issue. In vocational training, again, it is a very uneven issue. If Indigenous children or young people are living in remote areas, their capacity to access education which will prepare them for employment or vocational training is often more limited than that of city children. So I think it is a compounding of discrimination and a compounding of the lack of preparation for jobs that may be suitable. I have not had the opportunity to give a summary of where I am at to the Attorney yet, but I hope that that will happen very quickly. I expect that what will come out of the report more broadly will be about preparedness, access to training and retraining, and transition from school to employment. Transition from school to employment, particularly for students with disability, is a much more challenging situation.

Yes, on the one hand, Indigenous people with disability suffer greater difficulties. Some of those difficulties specifically relate to where they live; some relate to what sort of educational or vocational training they have been able to access. But, of course, the issue of employer ignorance, prejudice or fears about hiring people with disability can be much greater. On the other hand, I was greatly heartened by some of the evidence given by the First Peoples Disability Network representatives. They have thought about these things for a very long time. They are very informed. I recommend a meeting with that organisation to any senator who wants to hear more about what they are doing to not only put the issues on the agenda but also propose some things that we can do to change the disadvantage.

Senator SIEWERT: An announcement was made a couple of weeks ago around the numbers of people with disability under 35 who have been moved off the disability support pension onto Newstart or wherever. Have you looked at those figures and have either of you have done any analysis of the number of Aboriginal and Torres Strait Islander people who were included in that group? If you have, what impact has that had?

Mr Gooda : I have not had a chance to look at that yet, but it is something that is on our agenda.

Senator SIEWERT: When will you be doing that?

Mr Gooda : It is in consultation with the First Peoples Disability Network; they are the people I go to for advice on this. I know it will have a significant impact. By any measure, Aboriginal and Torres Strait Islander people are the most underemployed and unemployed people in the country. Like Commissioner Ryan said, it is a compounding issue when it comes to disability.

Ms Ryan : If I could just add, in one sense, if people are being moved off the disability support pension it should be that they are able to gain employment. If a person can move from the disability support pension to employment, I think we would all welcome that. But I have also not had the chance to get further information. If a person is moved off the disability support pension because they are assessed as capable of getting a job but they still find the doors shut in their face—because of their disability or, in this case, their Aboriginality—that is a most undesirable outcome.

I do not have the actual numbers as to who is affected by that but it is certainly a matter I will be trying to get more data about. We all want to see people getting off Newstart and off disability, into jobs. But they cannot be taken off, in my view, their benefits if they are then going to just encounter such obstacles that they never get a job.

Senator SIEWERT: Has the issue of young people under 35 being moved off disability support been raised with you?

Ms Ryan : What has been raised about people in that younger age cohort is the difficulty of getting started in a job. We have heard a lot of evidence from families, from individuals themselves and from their representative organisations about how difficult it is to get into a job. Sometimes they end up on disability support pension because of the lack of the job prospects. I am hoping we will be able to make some recommendations that might increase the number of jobs available. And, of course, as in the other part of my work I am very concerned about what is happening to people as they get older, we are also very well aware that that transition from school to your first job, which is always critical for every young person, is particularly critical for Indigenous people and people with a disability. That is where the focus has been for the inquiry. I hope there will be some important discussion of it in the report.

Senator SIEWERT: Mr Gooda, has it been raised with you?

Mr Gooda : Yes, it has been raised with me. When the government started a bit of a crackdown on people with disability pensions it was raised with me more generally, not just with young people going off the pension into work. But I agree with Commissioner Ryan that the more people we can make that happen for, if they are suitable for work—but the issue we have is more generally for Aboriginal employment. It is the support they get. They need support to transition if they have been on a disability pension for any length of time. They need a lot of support to get there. While we have providers out there looking for employment, they generally go for the low-hanging fruit—a quick turnover in getting people in and out of jobs. They make Aboriginal people wait for a while, so their unemployment period goes up so there is more money in it to have those people placed. We have some of those perverse things happening within the employment scene. We think that will just be multiplied for people with disability.

Senator SIEWERT: I have some more questions there that I will put them on notice. I did want to get to one more issue before my time runs out. You talked about out-of-home care in your report. I particularly want to ask about Western Australia. Are you aware of the current situation in Western Australia and the review that is going on? I have heard discussion around the traps about changing legislation about requiring children to be kept in out-of-home care until 18. It is speculation, I should say. I am wondering whether you have been involved or looked at that issue?

Mr Gooda : This Friday, I will be over in Perth talking to the family violence legal prevention area. That is certainly an issue that they have raised with me. I am waiting now to see what comes out of it rather than base anything on speculation. I think we have to get it right. I understand they are moving to permanent placements for children in care. The jury is still out as to whether that is a good or a bad thing. I noted Commissioner Ryan in the previous discussion when we were talking about the value of refugee kids being kept with parents in detention areas. I sometimes wish the same consideration was done for our people, that it is for the benefit of the child to be kept with their family and maybe we can get the state bodies to ask for a compelling reason to take the child away. If we look to the best interests of the child, it is in their best interests generally to be kept with their families.

Senator SIEWERT: Thank you. In regard to the CDEP legislation, do you have any comments on the concept of changing social security regulations specifically for particular regions and the approach that has been taken under the CDEP proposals, and the fact that it is predominantly Aboriginal and Torres Strait Islander people who will be affected by that approach?

Mr Gooda : Absolutely, and I have written about it in my report that you mentioned earlier. I have concerns that people in the mainstream Work for the Dole generally work for six months. They are proposing that our people work for 52 weeks. There is talk about a proposal for the older people working an extra 10 hours every week rather than 15 hours; they would be required to 25 hours.

Senator SIEWERT: There are also different ways of payment. I think the legislation came out after your report.

Mr Gooda : Yes. We put in a submission and we made the point about those differences. I also go to the point in my report in the chapter on welfare, where I talk about both the CDEP and the healthy welfare card, that both of those should be locked-in processes. The problem we have is this: you will recall in 2014 there was a proposal to limit the payment of welfare support to kids generally under 25, I think, to six months of the year—

Senator SIEWERT: Under 30.

Mr Gooda : I think the idea of CDEP came from a fairly good place, that we cannot have people under 30 in remote areas getting income support for six months of the year when you see what is available for them six months of the year. This is where this concept of CDEP came in, but that legislation never went through. We do not have those rules and, all of a sudden, we have a perverse result where a program being developed to address a problem of proposed legislation—that is, 52 weeks a year work—and then the proposed legislation does not go through, but we are stuck with the 52 weeks work. I have big concerns about that.

In another life, I actually help implement something like 15 CDEPs in Queensland. In my consultations with those communities, when I sat down and explained everything to them—that they are giving up a right that all Australians have to a payment of a social security benefit for the betterment of their communities—of those 15 I cannot recall any community voting under 80 per cent to accept CDEP. That is why I argue that if you give people the opportunity to opt-in rather than having it just imposed, it is much more powerful because they believe in it, and it will be much more successful because they believe in it.

CHAIR: Thanks, Senator Siewert. We can come back to you if you have further questions. Mr Gooda, when you said you were going to talk about your previous life, I shuddered because I thought you might have been going to talk about your school days with Senator O'Sullivan.

Mr Gooda : We did attend the same school, St Joseph's Christian Brothers' College in Rockhampton.

Senator O'SULLIVAN: Two fine graduates, I might say.

CHAIR: I would have put Mr Gooda in a higher class than you, Senator.

Senator O'SULLIVAN: I would accept that.

CHAIR: Senator Bilyk.

Senator BILYK: I just want to revisit the issue about the selection panel for the new sex discrimination commissioner. Minister, do you think it was appropriate that Professor Triggs was excluded from the selection panel for the sex discrimination commissioner?

Senator Brandis: Excluded is your word, Senator. Professor Triggs was not included.

Senator JACINTA COLLINS: That is right, so she was excluded.

Senator Brandis: No, that does not follow.

Senator JACINTA COLLINS: It is very unusual, is it not?

Senator Brandis: Senator Bilyk, if I do not invite you to my birthday party, I would not say I would be excluding you.

Senator JACINTA COLLINS: You would be if you had invited every other person every other time, and I would be quite crook for the exclusion, I might say. I find it very draining, Senator Brandis.

Senator Brandis: Senator Bilyk, an arms-length selection process was established at the Prime Minister's request. It took the form that has been indicated by Mr Moraitis, who chaired it. My understanding is that it has been commonly, but not invariably, the practice for the president of the commission to sit on selection panels for the selection of commissioners.

Senator JACINTA COLLINS: More often than not.

Senator Brandis: I do not know the actual numbers, but I know that it has not always been the case—commonly, but not invariably.

Senator JACINTA COLLINS: So it is quite unusual.

Senator Brandis: It is not uncommon for the president not to sit on the panel, but commonly the president has sat on the panel.

Senator JACINTA COLLINS: That is right. I think I can determine that she was excluded.

Senator Brandis: I think we can work out the flavour of what I am trying to tell you.

Senator JACINTA COLLINS: I understand your words clearly, Senator; I understand your words absolutely clearly. Did you have any discussion with Mr Turnbull about the appointment of the sex discrimination commissioner and the process for that appointment?

Senator Brandis: I have already indicated that the Prime Minister and I had a conversation, an outcome of which was the creation of an arms-length panel.

Senator JACINTA COLLINS: Did you argue for or against Professor Triggs being included on the selection panel?

Senator Brandis: I am not going to disclose to you private conversations with my ministerial colleagues.

Senator JACINTA COLLINS: I think that probably answers it.

Senator Brandis: No, Senator Bilyk. Let me challenge your innuendo there. I never disclose private conversations with ministerial colleagues, and you should not draw any inference one way or another from the fact that I adhere to the rule that I do not breach the confidentiality of conversations with ministerial colleagues.

Senator JACINTA COLLINS: Why was Professor Triggs excluded?

Senator Brandis: I have described the process to you. What you are asking me effectively goes to deliberation, which is, as you know—

Senator JACINTA COLLINS: Between you and the Prime Minister?

Senator Brandis: No, Senator. Again, you are drawing an inference that is not a necessary or appropriate inference to draw.

Senator JACINTA COLLINS: Between you and whom?

Senator Brandis: I had a conversation with the Prime Minister, an outcome of which was the establishment of an arms-length panel. That is as far as I am prepared to go, because I do not disclose contents of conversations with colleagues.

Senator JACINTA COLLINS: You have said that it is common for the president to be included—

Senator Brandis: Yes, in the past it has been.

Senator JACINTA COLLINS: so I am trying to find out what is different this time.

Senator Brandis: Do you have a question?

Senator JACINTA COLLINS: Yes. The question is: why was Professor Triggs excluded?

Senator Brandis: I have already told you. Professor Triggs was not excluded, she just was not one of the people who was—

Senator JACINTA COLLINS: Well, she was not included. Why was she not included? Seriously.

Senator Brandis: The panel that was assembled, chaired by the secretary of my department, included Elizabeth Broderick, the person who had occupied that position most recently. It also included my representative—

Senator JACINTA COLLINS: Who was your representative?

Senator Brandis: Mr Soso, and it included one other person. The process has been described by Mr Moraitis—

Senator JACINTA COLLINS: Who was the one other person?

Mr Moraitis : Rebecca Cross.

Senator JACINTA COLLINS: From the department?

Mr Moraitis : From Prime Minister and Cabinet, representing the Minister for the Office of Women.

Senator Brandis: That was the panel. This is an agency within the Attorney-General's portfolio, so it was appropriate that it be chaired by the secretary of the department. Because of the nature of the office it was appropriate that Minister Cash be represented, as she was; it was appropriate that I be represented, as I was; and it was appropriate that Ms Broderick, the person who had most recently acted in that position—who had been the Sex Discrimination Commissioner and had recently retired—should be included. Those are the names we selected.

Senator BILYK: I just need to confirm what you said earlier with respect to news articles that Peta Credlin was put forward for the role of Sex Discrimination Commissioner. You stated here this morning that Peta Credlin was never considered for the role of Sex Discrimination Commissioner.

Senator Brandis: That is correct.

Senator BILYK: And nor was her name put forward?

Senator Brandis: Correct.

Senator BILYK: And nor were you involved in any discussion with anyone regarding her as a potential candidate for that role?

Senator Brandis: Ms Credlin was never a candidate and her name was never put forward, nor did she propose herself and nor was she proposed by anyone else.

Senator BILYK: And nor were you involved in any discussion with anyone regarding her as a potential candidate for that role?

Senator Brandis: As a potential candidate, no.

Senator O'SULLIVAN: Professor Triggs, I have been advised by the secretariat that neither of us has access to the transcripts of yesterday's Hansard, so we will let that roll over to another time. When it comes to the issue of suggesting that some of these detainees are in cruel and unusual circumstances, you related it to the accommodation and access to amenities such as washing machines and the like. Are you able, to the best of your ability, to list for me what you think are the circumstances that would give rise to being able to form the view that their detention is in cruel and unusual circumstances?

Prof. Triggs : I think the primary criterion is how they have measured on the medical tests, which demonstrate that almost all of them are at the highest level of trauma and mental illness.

Senator O'SULLIVAN: Is it fair to say that some of these people left a country where they were in complete oppression—in fact, that almost all of them were, by their own argument?

Prof. Triggs : A very high number of those who seek Australia's protection have fled discrimination, persecution or internal conflict.

Senator O'SULLIVAN: In many cases, for a long time they have lived with threat to their lives and have come from relatively ordinary circumstances in their own living conditions, and the like?

Prof. Triggs : Again, this is a generalisation, but something like 85 per cent of those who seek Australia's protection meet the definition of 'refugee', and those are conditions of persecution, discrimination and conflict.

Senator O'SULLIVAN: Would you accept that many of them have had very arduous journeys here? Thousands of kilometres, sometimes walking and taking any mode of transport they can.

Prof. Triggs : That is typical for most of them.

Senator O'SULLIVAN: And many of them have not one but many sea journeys in the course of their pathway to Australia.

Prof. Triggs : Again, generally that is true.

Senator O'SULLIVAN: From what I have seen of those sea craft they arrive on, they are dangerous pieces of timber floating around out on the high seas. The boats that they arrive in—it is not as if the QE2 has just dropped one over the side; these are junks and unseaworthy vessels. Is that a fair comment?

Prof. Triggs : It is a comment made by you; it is not a question I can particularly answer. Obviously, what I see in the newspaper suggests the circumstances—

Senator O'SULLIVAN: When you see footage of these arrivals, do you accept that we are dealing with not very glorious ships of the sea?

Prof. Triggs : They are arriving in conditions which are very dangerous. It creates significant risks to all aboard.

Senator O'SULLIVAN: My visual image, from evidence that has been given to this committee, is that they often arrive in a vessel that might accommodate 20, 30 or 40 people comfortably, but would have a couple of hundred on it.

Prof. Triggs : I cannot speak about the numbers. They vary enormously. Some have a very few, just a handful, and others are seriously overloaded and very dangerous.

Senator O'SULLIVAN: Many of them in their journey are exposed to the elements and are trying to attend to children and infants on board.

Prof. Triggs : You are making statements.

Senator O'SULLIVAN: No, I am asking you. I am drawing on the same source.

Prof. Triggs : What is the question? Perhaps you could be clearer.

Senator O'SULLIVAN: I am asking if that is your impression of the circumstances in which they arrive.

Prof. Triggs : I have the same access to information that the public does in relation to that.

Senator O'SULLIVAN: I will take that as a 'yes' because that is where my source is. Many of these individuals you would accept too were involved in very, very traumatic events such as ships sinking at sea, relatives dying, bodies floating around, losing children, brothers and sisters.

Prof. Triggs : Is that a question or a statement?

Senator O'SULLIVAN: I am asking: are you aware that that is part of their journey?

Prof. Triggs : Indeed. From the many interviews that we conduct, they all have a separate and individual story. Most of them are traumatic stories.

Senator O'SULLIVAN: Then they arrive into the custody of a nation where, perhaps, they do not speak the language. Is that a fair observation?

Prof. Triggs : Certainly.

Senator O'SULLIVAN: Where I am going with this is that it comes as absolutely no surprise to me that these people are traumatised, seriously traumatised. Professor Triggs, what I am trying to establish is that pretty well everyone accepts, and it comes as absolutely no surprise, that one or more of these refugees are traumatised within a family unit, such as parents, brothers, sisters or, indeed, children who have been old enough and have had a cognitive experience with this journey. Can we have a minute as this is a fairly important subject? I am distracted by the giggling behind me.

Senator McKIM: The chair has walked out on your questions, that is your problem.

Senator O'SULLIVAN: What I am trying to do now is that, within this cohort of people, I am trying to isolate those who may well have been traumatised as a result of something that happened post their journey. So they have arrived and now they have crossed over, so there is no trauma from the journey and now their trauma visits on them. Do you have any evidence to support the fact that people who were not traumatised are now traumatised as a result of their experience post their arrival either into the custody of Australian officials or in the detention camps? Have you separated that with the data when you have looked at it?

Prof. Triggs : Perhaps I could say that we deal with evidence and we deal with properly developed surveys and evidence with the assistance of our medical advisers. Of course we are making judgements where we have baseline studies. What is the condition of the families and children when they arrive and when they have been in detention for two, three, four, five or more years? How has continued detention affected their mental health.

The key point—and it is a perfectly fair one—is that many of these people arrive traumatised, but there are degrees of trauma. We have very clear evidence, all of which is in our reports that we have reported persistently to parliament, to demonstrate that, the longer the child and the family—the parent, the mother—are held in detention, the greater the level of exacerbation of that condition of trauma and mental illness.

Senator O'SULLIVAN: I accept that. Again, it would surprise me if that were not present. But that is not the burden of my question. Let me come back. For your health professionals to arrive at a determination that someone is suffering from a condition such as stress or trauma, I imagine that they engage with the patient. We will call them a patient for these purposes. They engage with the patient, ask them questions and apply tests to determine the genesis of that trauma. Is that correct?

Prof. Triggs : It certainly is, yes.

Senator O'SULLIVAN: Okay. In doing that, would it be unreasonable to suggest that they would be able to separate this trauma from that trauma in terms of its contribution to their condition?

Prof. Triggs : I did answer your question and fully understand it. Baseline studies are conducted by the medical officers from the International Health and Medical Services so that we know the condition of somebody when they have arrived. Within the first few weeks they are thoroughly examined, including their mental health. We then determine how the continued detention has altered, varied, exacerbated or minimised the conditions with which they arrived. It is for that reason that we are able to say with relative scientific evidence that the fact of prolonged detention has significantly worsened the traumatised conditions with which they arrived.

Senator O'SULLIVAN: I accept all of that, but the burden of my question that I am trying to point out is that you would be able to separate a refugee visitor who was not traumatised at the time that they arrived into the custody of Australian officials. You would be able to go down the list and go, 'No, this individual's trauma started post arrival as opposed to pre-arrival.

Prof. Triggs : I can certainly disaggregate those figures. There may be some who arrived who were never traumatised, were never anxious or were never injured in any way by the conditions that you have so graphically described. That may be the case, but I suspect it is a tiny number. But I will be very happy to find out if that baseline material from the medical officers employed by the government can demonstrate that.

Senator O'SULLIVAN: Then we are in fierce agreement that almost all of these people pre-arrival, pre-engagement with any officials within this country were traumatised.

Prof. Triggs : I would like to get the exact figures from the medical services, but my understanding is that a relatively high number of those arriving had some level of trauma but since arriving that level of trauma has significantly increased.

Senator O'SULLIVAN: Do you believe it is a contention that, had we taken these people and located them in the suburb over there and given them some basic support, their trauma would have levelled out? They still have 10 cubits of trauma, but we have them in suburbs. You do not think that the change into a new country, the challenges with language, education, culture, trying to find work and trying to get a start back in life after this terrible incident would not also contribute to their trauma?

Prof. Triggs : We do know from wider studies undertaken not directly by the commission but by other groups within the community that, when people are released, particularly from lengthy detention, and go out into the community—children in schools in a suburban environment, not controlled by guards anymore, not behind the fences—their condition does improve significantly, particularly for the children. The children adjust very quickly into school. They get the language. They are into the school environment and, as you would expect and as happens to lots of traumatised migrants that come to Australia, they can flourish. But we are also getting very significant evidence from medical practitioners that some of these children are now with their families showing up in their surgeries with continued problems. So I accept the fact that, while we do know categorically that children's and their parents' conditions and mental health improve once they are released into the general community, there is still going to be a legacy of need to work with those people because they have a legacy of trauma from a number of causes.

Senator O'SULLIVAN: I agree with you 100 per cent on everything you have said, but again that was not my question. Could you focus on the core of my question. I know some of these refugees. They are in the suburbs in my community. I know them personally. I visit their homes. I talk to them. I am saying to you their trauma often continues to be exacerbated by the fact that they are trying to fit into a new culture. They are still having trouble with language and education, placing the children and all the stresses that come with trying to get a job. They cannot get a driver's licence. So, whether they go left to Nauru or right to Wilsonton—a suburb in my community—I am saying to you the exacerbation of their stress continues. My question is: do you accept that proposition?

Prof. Triggs : No, I do not, because I think that it is entirely inappropriate to compare the trauma of continued detention in the conditions of Nauru to living in a suburb in Australia. That is a significantly different situation.

Senator O'SULLIVAN: Has the Human Rights Commission looked at this question? Have you visited—

Prof. Triggs : We have not done any research—

Senator O'SULLIVAN: Then how are you able to make the statement?

Prof. Triggs : Because I know the difference in the conditions because I live in a suburb myself. You have not been precise as to which one you are describing, but—

Senator O'SULLIVAN: I am sure they are not living in your suburb, Professor Triggs—

Prof. Triggs : I think you might be surprised, as a matter of fact, but I think that is entirely irrelevant to this discussion—

Senator O'SULLIVAN: or your house or your circumstances—

Prof. Triggs : We would be delighted to be funded to do the research to see what is happening to the many thousands of people that are currently in the Australian community on bridging visas without having their claims to refugee status assessed. That is in itself a significant cause of tension and concern. Whether I would describe it as trauma is another matter, but we would love the opportunity to do the research and to answer the question that you would like answered.

Senator O'SULLIVAN: I am going to leave this with a final question, and my question and your answer will speak for themselves: are you telling me that the ones who go to the suburbs in my community are not suffering from any further exacerbation to the trauma for the reasons that I have articulated?

Prof. Triggs : They may very well do, and the things that you have listed as being difficulties for them, I would imagine, are complications. I should think that is a very important question to ask. But they are difficulties of adjustment that are very well known, and we have many support services to assist—

Senator O'SULLIVAN: So why is the commission focused on that and not that at the same time?

Prof. Triggs : Because it is illegal under international law to subject children and their families to the conditions in Nauru. It is not illegal to allow refugees and asylum seekers to settle in our suburbs and to get on with life.

Senator O'SULLIVAN: So your question is about the legality of it, not the human question about whether they continue to be traumatised in the circumstances?

Prof. Triggs : We are always interested in the human question, but our job, my job, is to assess compliance with international law, and I think in terms of settling refugees and asylum seekers in the community Australia has a very high record and we do provide extremely high-quality services, so that is not a matter of priority for the commission at the moment. But in due course, as more and more people do not get permanent residence in Australia, there will be problems down the track, and we think certainly your questions suggest that more funds need to be devoted to research on these issues.

Senator O'SULLIVAN: Well, we will come back to it.

CHAIR: In the circumstances—subject, Minister, to you and Mr Moraitis—we might continue on. We were supposed to break for lunch at 12.30, but we might make it 12.45 or 12.50, and then we can complete the Human Rights Commission. My apologies for my laptop taking control and me not being able to cut it down. It was a report from The Age where the video came on automatically. I just want to vacate my earlier ruling that photographs could be taken. I said to the government photographer that it was only if he took me from the right side. I should have made that qualification for The Age photographer, because he has very flattering photos of both Senator Hanson-Young and Professor Triggs, a very unflattering photo of me and Senator O'Sullivan, and a whimsical photo of Commissioner Wilson.

Mr Wilson : That's not possible!

CHAIR: So we might have to change the ruling for the media to: 'Only if they take flattering photos'! Anyhow, my apologies for that oversight.

Senator BILYK: I just want to go back to something that Senator Brandis said about an hour ago. I was in and out of the room a bit then. I had to go to another estimates for a while, but you were talking about the nature of human rights. I am just wondering: would you say the right to be a bigot is one of those human rights that is political philosophy rather than law?

Senator Brandis: The point I was trying to make is that, in my opinion, too much of the discussion about human rights is dominated by human rights lawyers who sometimes seem to think that human rights issues are exclusively legal issues to be disposed of by courts and tribunals interpreting international instruments. In my view, although human rights law is, of course, a very important part of the human rights discussion, the human rights discussion is not merely about human rights law, and lawyers are not the only people who are entitled to have views about what human rights are. If I could give you an example: there is a very frequent debate in this country about where the right to press freedom stops and the right to individual privacy begins. That is a debate about which different people, in good faith, may have different views. It is not purely a matter for lawyers to decide.

The debate about human rights is fundamentally a debate, in my view, about values and, more particularly, a debate about people's political philosophies. The debate about political philosophy goes back to the pre-Socratics. It is a debate that is in the nature of human beings living together in societies. It is a debate that will never end, and nor should it ever end, for as long as humans live together in societies. And the suggestion that human rights are what specialist human rights lawyers declare them to be is, in my view, an extremely confined notion of what the human rights debate is all about.

Senator BILYK: So you are still saying that people have the right to be a bigot?

Senator Brandis: Well, you are running two concepts together. You started off by saying, 'It's okay'—

Senator BILYK: I asked about, yes, the right to be a bigot—whether it was a human right or a political philosophy.

Senator Brandis: I do not think it is okay, and I never have. But I do believe that—

Senator BILYK: I think you did say that in the Senate chamber.

Senator Brandis: No. I have never said that. But I do believe that people have, in a liberal democracy such as ours, a right to express a variety of views, including unpopular views. I think that Senator Hanson-Young and Senator McKim up there have a right to be Greens and to espouse Green ideology. I would defend to the death their right to espouse Green ideology. That does not mean I agree with it.

CHAIR: I would hope not.

Senator BILYK: I was just checking that nothing has changed with the government's attitude to human rights since you have changed Prime Minister.

Senator McKIM: If the government proceeds with its proposal to remove direct access to permanent residence for asylum seekers, what would be the implications around Australia's international human rights obligations? Specifically, would it contravene any of Australia's international human rights obligations?

CHAIR: Minister, is that a hypothetical?

Senator McKIM: No, the proposal is public.

CHAIR: Is it?

Senator Brandis: Could we have the question again please.

Senator McKIM: The question is: if the government proceeds with its proposal to remove direct access to permanent residence for humanitarian visa holders, would that contravene any of Australia's international human rights obligations? It was a question to Prof. Triggs actually.

CHAIR: As a rule we do not allow hypothetical questions in the Senate or in estimates committees. 'If something happens in the future what might be' is hypothetical.

Senator McKIM: I will rephrase the question to remove the hypothetical element from it if that is your ruling.

CHAIR: That would be good.

Senator McKIM: Would removing direct access to permanent residence for humanitarian visa holders contravene any of Australia's international human rights obligations?

CHAIR: Again, it is hypothetical with 'would'.

Senator Brandis: On a point of order, it is also a question asking the witness to offer a conclusion about the law, which is, I recall from Senate standing orders, not a proper question in the Senate or its committees.

CHAIR: It might also be an opinion.

Senator McKIM: I am happy to argue this on a point of order if it will make it easier. I am quoting from a cabinet document that was obtained and made public last week by at least one media outlet. The department of immigration yesterday confirmed that this document had veracity—that is, that it did exist. So I will rephrase again the question, which, I believe, would put it within your comfort zone around whether or not it is hypothetical. Will removing direct access to permanent residence for humanitarian visa holders contravene any of Australia's international human rights obligations?

CHAIR: First of all, the evidence yesterday—I am not sure if you were here—was that it was not a cabinet document, that it had not gone to cabinet but that it was a draft by someone in the department. I think that is an accurate reporting of it. So it is not a cabinet document. It was a draft of, I gather, a middle-order official. It is a bit difficult to ask witnesses what might happen if this, that and the other will happen because we do not know full proposal.

Senator McKIM: In fact I have removed that element of it. In none of my substantive questions have I referenced a cabinet document. I have simply said: will doing this contravene Australia's international human rights obligations? The Human Rights Commission has an advocacy role here around—

CHAIR: Perhaps if the question were: what are the human rights obligations in relation to whatever the substance is—

Senator HANSON-YOUNG: The current law is that they get permanent residency. If we take that away, does that contravene any international human rights?

Senator McKIM: And there have been hypothetical questions asked this morning already without a ruling from you.

CHAIR: That shows that I am not as good chairman as I thought I was. Anyhow, I think it is inappropriate but it is almost lunchtime. Prof. Triggs, if you can give some sort of an answer.

Prof. Triggs : Thank you for the question. I, if I may, would like to take it on notice because you raise an important legal question and I would like to really examine what the implications of this purported proposal are. I think it is something that we would need to look at in a little bit more detail. But perhaps I can make a general statement—that is, Australia is a sovereign body and has the right to decide those who would have permanent residence and that is a very important underpinning principle of international law. With that in mind, we would be very pleased to get back to you with a view of what we think the law is.

Senator McKIM: Thanks, Prof. Triggs, I really appreciate that. There has been some to-ing and fro-ing this morning around the views of the UN Special Rapporteur regarding children in Nauru and the view of the rapporteur that that could constitute cruel treatment of children. I ask you whether this kind of expression of view compromises Australia's international human rights reputation?

Prof. Triggs : It certainly calls into question Australia's hitherto very high regard in the international legal environment for our human rights record. But it is a particularly important point in the context of our bid for the Human Rights Council.

Senator McKIM: So does it present extra hurdles in terms of our bid for the Human Rights Council?

Prof. Triggs : I think the general question of the transferring of those seeking our protection under the refugee convention to Nauru and to Manus is a matter that is objectively of great concern to members of the Human Rights Council and to the international community generally. I was at the Geneva meeting of the UPR process and I counted well over 60 countries that raised their concerns and asked Australia courteously to review the policies, particularly with regard to children. So this is not a small issue; it is a matter of concern to the overwhelming majority of those states that chose to speak about Australia's human rights record generally.

CHAIR: Could you, on notice, list the 60 countries.

Prof. Triggs : Yes, I will provide you with that list.

Senator McKIM: Did you pass those concerns onto government?

Prof. Triggs : I did not need to because they are concerns of sovereign governments and those concerns are relayed to the Australian government as a sovereign government and also relayed through the public proceedings of the UPR process in Geneva. They are on the public record for anybody to see.

Senator McKIM: In your judgement, does our policy framework around asylum seekers disadvantage our bid for membership of the Human Rights Council?

Prof. Triggs : That really is a question of policy—

CHAIR: Are these questions of opinion?

Senator McKIM: Chair, while you are taking that advice, on a point of order, I did ask Prof. Triggs only moments ago around the impact on Australia's international human rights reputation of our asylum seeker policy framework and you did not take any issue with that question when I asked it when in fact that was asking Prof. Triggs for a judgement call or an opinion yet you are now, when the questions get a little bit more politically problematic for the government, taking a position that you failed to take last time.

CHAIR: I do not see anything politically problematic for the government in anything that has happened.

Senator McKIM: Missing out on a chair on the Human Rights Council might be.

CHAIR: That is not my role as chairman to work out what is politically problematic. I repeat what I said at the opening of the estimates hearing:

The Senate has resolved—

not me—

that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and should be given reasonable opportunity to refer questions asked to superior officers or to the minister. This resolution prohibits only questions for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how the policies were adopted.

Now, that is read at the beginning of every estimates committee. If your question is not a question about an opinion on policy then I am not sure what an opinion on policy is.

Senator McKIM: So you are ruling that out of order?

CHAIR: Yes, I am.

Senator McKIM: All right. I want to move on and ask whether the commission is aware of the Tasmanian anti-protest laws under which former senator Bob Brown was arrested a few weeks ago. It did generate some media coverage. The law is the Workplaces (Protection from Protesters) Act 2014. Effectively, it criminalises some forms of protest in Tasmania and provides for the courts to impose terms of up to five years imprisonment for some protest actions. Does the commission have a view about those laws and their consistency or otherwise with Australia's international human rights obligations?

Prof. Triggs : We have not received any complaints in relation to that matter and therefore we have not looked specifically at those laws. But there are many other examples where we do consider the balance between the rights to freedom of speech, freedom of assembly, political demonstration and political activity and the needs of a workforce or other national priorities—or, in that case, a state priority.

I would be very happy to refer you to the work that we have already done in this area. As I said, it arises in many contexts. But if it would help you, we are very happy to look at that piece of legislation to see, in our view—and that is all it would be—whether the balance is probably achieved. Or, to put it in more legalese: whether the measure in the legislation is a necessary and proportionate response to achieve a legitimate outcome—

Senator McKIM: Yes.

Prof. Triggs : That is the mantra, if you like, in law—both in international law and in Australian law, as articulated by the High Court. How we fall on that question is, of course, our view that it will only be resolved for the purposes of Australian law by the Federal Court or the High Court.

Senator McKIM: Thank you, Professor. I do appreciate those caveats.

Prof. Triggs : But we would be very happy to get back to you if that would help you.

Senator McKIM: Would you be happy just to take that as a question on notice, or should I write to you—

Prof. Triggs : Very pleased to take it—very happy to do that.

Senator McKIM: Thank you very much, Professor. That is appreciated. Given the Chair's ruling on some of my previous questions I am going to draw the line there. I may have some further questions on notice, which I will submit through the normal process.

Prof. Triggs : Thank you.

Senator O'SULLIVAN: I have two questions that I was just reminded of by that. Of those 60 countries that talked about our human rights performance, when we get the list will we see whether any of those countries have any human rights challenges themselves? From your memory—you have been able to quantify them, so you were there—are there any that might be challenged in this place themselves?

Prof. Triggs : I would say that every state has aspects of its domestic policy and practice which would raise questions of human rights.

Senator O'SULLIVAN: Did you get an opportunity to respond to them—to speak publicly about Australia?

Prof. Triggs : The Australian government will be responding formally to those matters, I understand in highly positive, collaborative and useful ways, in March. The Australian Human Rights Commission has the status also to make a response. We are talking to the Department of Foreign Affairs and Trade about the nature of that response, and I believe it will be a very helpful one. But that is all I can say at the moment.

Senator O'SULLIVAN: No doubt it will point out that we are down from 1,992 to 90-odd. I am sure that will be the feature piece of our response to their criticisms about children in detention. Thank you.

CHAIR: Thank you to everyone and, again, thanks to Professor Triggs and her fellow commissioners and staff. Thank you very much for being with us yet again.

Proceedings suspended from 12 : 54 to 14 : 02