Features Australia

The Forgotten Lawyer

Touchy-feely slogans, emotive drawings and leading questions wouldn’t pass muster in a proper legal report

7 March 2015

9:00 AM

7 March 2015

9:00 AM

‘I have been a lawyer for 46 years. I have never had any suggestion of impropriety or work that was not of the appropriate standard. I have been able to practise law in commercial legal practice, in the academic world and as dean of a faculty. I have never ever had a suggestion that my work was not of an appropriate standard. Indeed I have only ever had remarks that confirmed the quality of my work.’

So said Human Rights Commission President and Quality Lawyer, Professor Gillian Triggs at her recent appearance before the Senate Legal Affairs Committee. The question, of course, was about the (not) inducement that was (not) offered by Attorney General Brandis in exchange for the professor’s resignation. She went on to speak of her ‘surprise’ and ‘shock’ at the Attorney’s alleged request.

No doubt hers was the surprise and shock only felt by an untouchable, unaccountable tenured officeholder. Most of us – if we had connived and schemed against our employer – would expect to be summarily sacked, never mind this ‘I request your resignation’ business. In this case Brandis can’t give her the boot, but there is ample reason for his loss of confidence in her. Curiously, however, he seems to retain confidence in the Human Rights Commission generally, and in the wider human rights game, even though Triggs’ actions in connection with The Forgotten Children report are ultimately encouraged by both.

There are so many concerning aspects to this whole episode – the most obvious being the gratuitously political timing of the inquiry, for which Triggs has provided five different explanations, and counting – in fact, the only good aspect is most of the recommendations themselves. But perhaps most concerning is the wholly unlawyer-like nature of The Forgotten Children report.

If it were a publication of an advocacy group, or a political party, or a think tank, or a stamp collecting club, it would be considered ‘quality work’ of ‘an appropriate standard.’ But as a report of the statutory body charged with reporting on the almost sacred issue of human rights, it is poor quality work of an inappropriate standard.

Take, for example, the title, which should tell you everything you need to know about the Commission’s impartiality or lack thereof. What was wrong with calling it by, say, its subtitle: The National Inquiry into Children in Immigration Detention? Factual? Yes. Sexy? Admittedly, no. Or what about even Release the Children? It’s emotive but at least it’s factual as to the recommendations. But the Commission chose The Forgotten Children, with all the moral – almost infanticidal – failings it suggests, and with all the horror and outrage it would be expected to generate. Would such a title make it past the senior partners at Triggs’ old commercial law firm? Hardly; emotive language is the preserve of the activist rather than the lawyer, and of the publically-funded.

And in what sense are the children forgotten anyway? Apart from the Dantes and Chloes that populate Eastern Suburbs Montessori schools, the poor kids in detention are the most talked about children in Australia! Activists and politicians from both sides of the aisle have attempted – and succeeded – in keeping this issue before the public and before the government. Their efforts have been so effective that – thanks, it must be said, to the current government – there are now only 245 children in immigration detention (down from 1,342 at the change of government). So how about The Non-Existent Children? Too creepy?

Then, of course, there are the pictures. On the rare occasions that I have been privy to legal advice from solicitors or barristers, I don’t recall seeing many drawings. Such legal norms don’t apply to the Human Rights Commission, however. The report’s glossy cover features a dramatic ‘image of a child held in detention on the Australian mainland, 2013.’ Before the 7 September election is my guess. And was it staged?

In my house there is an entire wall devoted to children’s ‘artwork’ so I am aware of the emotive effect that children’s drawings have. Even more so when every picture ‘by primary school aged child, Christmas Island, 2014’ or ‘by preschool age girl, detained 420 days’ contains tears, bars, fences, cages, and frowns. It would break my heart to see my kids draw themselves so sad, which is exactly the point of the pictures’ inclusion, but also precisely why they should be omitted. The young artists featured in the report deserve to have their human rights considered sensibly – and frankly, some of the facts are horrifying enough – rather than through the blur of crayons and tears.

Which brings us to the quotations and questions. Strategically located with almost every drawing is an abstract quote such as ‘not even the birth of my child can make me feel happy. I don’t know what family means.’ Or ‘[They are] crying all day long…tortured by sadness.’ Or ‘I am a bird in a cage.’ Are they genuine quotes? Who’d know? Do they sound like something a detainee would think or say? Sure. Do they contribute anything to the public debate? Not in the slightest.

Of even less probative value are the questions that detainees were asked. This one to primary aged children: ‘Do you think your emotional and mental health has been affected since being in detention?’ Or to teenagers: ‘Explain why you feel unsafe.’ Or to unaccompanied children: ‘How often do you feel hopeless?’ These questions (and the methodology attached to them) wouldn’t pass a first year university statistics course. And even if they did, their lack of forensic usefulness would see a fail in the law school.

Anyway, there is one subject where they would receive full marks: Human Rights 101, as now taught at most of our universities. The human rights faculties and the industry as a whole have now no interest in morally clear, objective statements or rigorous discussions of human rights, preferring pictures and seven-word expressions of feeling. The noble categories of ‘life, liberty, and the pursuit of happiness’ have been replaced by the language of ‘mood face continuums’. The 245 children deserve more. The important human rights polemics of our day should deal with facts and be based on our strong philosophical and moral traditions. Instead, we have a 315 page op-ed called The Forgotten Children written by someone claiming to be a Quality Lawyer.

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