Gillian Triggs has criticised the expansion of executive powers in Australia, saying Australian law has fallen prey to “isolation and exceptionalism” that has weakened democracy and left human rights undefended.
In a draft copy of her Michael Kirby Oration, delivered at Victoria University on Wednesday night, Triggs said governments had taken advantage of the fear caused by terrorism to introduce laws that were “out of proportion to the legitimate aim of protecting national security”.
She said that recent events including funding the $120m postal survey on marriage equality without parliamentary approval, a move that was unanimously backed by the high court, and the decision to create a super ministry of home security continued the trend.
“My concern is that an imbalance has crept into our democracy so that increasingly the courts are marginalised by legislation,” she said. “Compliant parliaments, including oppositions over many years, have failed to exercise their historical restraint and pass laws that breach the rule of law. Executive cabinet government assumes ever more power.
“The result is that our democracy becomes weakened by the growing powers of the executive and by a corresponding diminution in the independence of the judiciary and a growing impotence of parliament.”
Triggs said the failure of Australian courts to consider international laws when making decisions meant Australian law, particularly around immigration, had diverged from that of other similar countries to become “among the most inhumane in the world.”
She said that problem was compounded because Australia did not have a bill of rights and had not, in most cases, enacted the international treaties it had ratified into law.
“For all these reasons, in Australia we no longer speak the language of human rights and are increasingly out of step with comparable legal systems in the UK, Europe, Canada, the United states, even our cousins the New Zealanders,” she said.
Triggs said the argument that any of the laws that expand executive power may be individually justified, for example counter-terrorism measures designed to protect public safety, fell over when the collective impact was considered.
“My concern is that these examples when viewed together become greater than the sum of their parts and a distortion of democracy,” she said.
She said governments had taken advantage of fear around terrorism and unregulated migration to enact laws that were not based on evidence, were disproportionate to all legitimate purpose, breached fundamental freedoms and contravened the rule of law.
They then used that fear to avoid scrutiny those laws, she said.
“Questions of national security, justified by a fear of terrorism, often conflated with a fear of unauthorised arrivals of immigrants, asylum seekers and refugees, even a fear of Islam itself, have shielded government measures from political challenge as a taboo subject, creating a vacuum of silence in the absence of strong leadership,” she said.
Triggs has made a series of public speeches coinciding with the end of her five-year appointment as Australian human rights commissioner, which expired in July.
She was awarded the Voltaire award for free speech for public criticisms she made of Australia’s offshore detention centres and policies while in office.
The foreign minister, Julie Bishop, has previously said Triggs’s assessment of Australia’s human rights record was “misguided.”
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