Hello Triggs-Lite, Goodbye Free Speech

Written by:
22 June 2017
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Originally Appeared In

It’s clear now that the Coalition government is not only uninterested in the idea of restructuring the bureaucracy, but it also is not even interested in making decent appointments.

The Commonwealth government has an almost untrammelled ability to appoint anyone it likes to powerful bureaucratic positions such as the AHRC presidency. The choice was for the government was to pick someone that would defend fundamental human freedoms like freedom of speech, or to pick someone who represents the status quo who would oversee the continued erosion of our freedoms.

With the appointment of Rosalind Croucher to the presidency of the Australian Human Rights Commission, the government has chosen the latter.

Croucher, who is the outgoing head of the Australian Law Reform Commission, is Triggs-lite. One need only read this 3 March 2016 article in The Australian authored by Croucher herself to see why. In the article – littered with references to international law – Croucher identifies the constitutional vulnerability of section 18C’s prohibition of speech or acts that ‘offend’ because of a person’s race. Accompanying this observation is the note that not only are racial vilification laws are needed, and that “there might be a need for new criminal laws to target the most serious types of racial vilification.” Croucher concludes the article by contemplating extending 18C to other areas by noting how the ALRC’s work can “complement work that considers other ways to protect rights – such as by creating new causes of action or new offences, or by enacting a bill of rights.”

Is this really significantly different to Triggs? Triggs even said once of the call to repeal section 18C that “Of course it is possible to tweak it, to amend it, to take language out and to put new language in that strengthens it – all of that we of course fully support as a matter of law.” Even the shadow attorney-general sees Croucher as a continuation of Triggs:

This episode can be contrasted with how conservative governments approach in the United States. There, appointing solid conservatives to key positions is seen as a fundamental duty of the Republicans when they get into power. President Trump’s promise to appoint a legal conservative was a key election promise.

This is sadly not the case in Australia. This is why an originalist judge in Neil Gorsuch is about to officially join the US Supreme Court, but the Coalition, ever fearing the response from the ABC and the Canberra press gallery, makes Labor’s appointments for them.

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