Did Brandis break the law in requesting Triggs’ resignation?

The most recent allegations against George Brandis stem from Gillian Triggs’ evidence to a Senate estimates hearing. AAP/Lukas Coch

The ongoing controversy surrounding the Australian Human Rights Commission (AHRC) and its president, Gillian Triggs, has involved claim and counter-claim of bias, influence and improper conduct. Beyond the political rhetoric and point-scoring, the saga has raised serious political and legal questions about the AHRC’s independence.

Perhaps the most alarming of these questions is the allegation of malfeasance against Attorney-General George Brandis for “corrupt and unlawful conduct” against an office within his portfolio.

The referral

The most recent allegations against Brandis stem from Triggs’ evidence to a Senate estimates hearing earlier this week. She told the committee that on February 3, prior to the publication of an AHRC report on children in immigration detention, the attorney-general’s departmental secretary, Chris Moraitis, delivered a request for her to resign her office on Brandis’ behalf.

Triggs said she was to be offered “other work with the government” if she resigned. As a consequence, shadow attorney-general Mark Dreyfus formally referred the matter to the Australian Federal Police (AFP). Drefyus wrote:

The Attorney-General’s offer to an independent statutory officer of an inducement to resign her position as President, with the object of affecting the leadership of the AHRC to avoid political damage to the Abbott Government, may constitute corrupt and unlawful conduct.

Independent officers and the separation of powers

The independence and impartiality of public officers is a fundamental aspect of the rule of law which underpins Australia’s constitutional democracy. That is especially true of legal officers, who should ordinarily hold the government to account and keep it in check.

Despite its pivotal role in ensuring that the government adheres to its human rights obligations, the AHRC is not a judicial body – which the High Court asserted in 1995. Rather, the AHRC is empowered to undertake self-initiated, non-judicial inquiries, give advice and report on governmental compliance with the human rights obligations set out in Commonwealth and international law. But the commission lacks the courts’ constitutional safeguards.

These inquisitorial, “quasi-judicial” roles can make administrative scrutiny bodies such as the AHRC particularly unpopular with the government of the day and prime candidates for political and executive interference.

While the conduct of Moraitis – and, more importantly, of Brandis – might have constituted a breach of separation of powers had the statements been made to a judge, Triggs is part of the executive. She falls under the attorney-general’s ministry. As such, the legality of the alleged offer must be determined by legislation alone – not constitutional principles.

The High Court asserted in 1995 that the Human Rights Commission is not a judicial body. AAP/Lukas Coch

Relevant legislation

Given that it is not a court, the AHRC does not have an inherent power to punish for contempt of the administration of justice – which includes interfering with or attempting to influence a judicial or parliamentary officer.

Its supporting legislation only prevents persons from interfering with a member “participating in an inquiry or examination” or an office ; or “holding an inquiry or carrying out an investigation under this Act”.

While there is nothing in the Australian Human Rights Commission Act that would preclude government MPs being included in such interference, the meeting between Moraitis and Triggs occurred after the AHRC’s inquiry had concluded. This leaves the question of the legal appropriateness of such conduct to other Commonwealth legislation, specifically the Commonwealth Criminal Code.

The code establishes a range of offences that apply to and protect “Commonwealth public officials” from interference and bias. These include “influencing a Commonwealth public official”; “unwarranted demands of a Commonwealth public official”; “corrupting benefits given to a Commonwealth public official”; and “bribery of a Commonwealth public official”.

Under the code, Commonwealth public officials include both “ministers” and “an individual who holds or performs the duties of an office established by or under a law of the Commonwealth”. This would include the AHRC president. Beyond this, it must be established that the impugned conduct is directed at influencing the performance of their duties as such.

Take “bribery of a Commonwealth public official” as an example. Although the following observations may equally apply to the other offences mentioned, the code provides:

A person is guilty of an offence if the person dishonestly … offers to provide, or promises to provide, a benefit to another person; or causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and the person does so with the intention of influencing a public official (who may be the other person) in the exercise of the official’s duties as a public official; and the public official is a Commonwealth public official; and the duties are duties as a Commonwealth public official.

The offence potentially captures the type of conduct ascribed to both Brandis (“causing an offer to be made”) and Moraitis (“offering or promising to provide a benefit”). “Benefit” is defined in the code to include any advantage, not limited to property. The offer of “other work” with the government is likely to constitute a “benefit” under this test.

It would also have to be established that “resigning from a statutory office” is part of the “exercise of the official’s duties as a public official”. It would seem reasonable to conclude that it would be.

However, the question of guilt is ultimately likely to turn upon highly subjective considerations. The first is whether the offer or promise was made dishonestly. The definition of “dishonest” in the code creates a two-stage test which requires both that the conduct is objectively dishonest and that the accused knows that this is the case. The code goes on to state that the determination of dishonesty is a question of fact.

The second is whether the intention behind the offer was to influence Triggs in the way described. The most serious of the bribery offences contained in the code attracts a high maximum penalty of ten years’ imprisonment for an individual offender. Accordingly, it requires proof of subjective intent to influence.

The code also contains a similar, though less serious, version of the offence, which attracts a maximum penalty of five years’ imprisonment. Proof of this offence is facilitated by the imposition of a less demanding objective test of whether the benefit would tend to influence a public official.

According to evidence at a Senate estimates hearing, the attorney-general’s departmental secretary, Chris Moraitis, conveyed a request to Gillian Triggs that she resign. AAP/Lukas Coch

A larger governance problem

The problem with all of this is that Moraitis was acting as Brandis’ representative and Brandis is an elected representative responsible for the AHRC. There is a fine line between dishonest influence and the honest reproval by a minister of the affairs of a statutory agency under his portfolio – even if that reproval indicated that the minister no longer was confident in the officer in charge.

Where that boundary lies is a legal question which must ultimately be left to the courts. This is assuming that the AFP commissioner chooses to act on the reference at all.

Like the AHRC president, the AFP commissioner is ultimately an officer of the Commonwealth, albeit with a different range of powers and protections. But there will certainly be legal considerations to take into account. One is that the allegations made thus far are not admissible in court as they were made to a parliamentary committee under privilege. An entirely new investigation, interviews and evidence would be required.

The real victim is goodwill

Regardless of whether Brandis’ action was illegal, it represents an attempt by the very institutions charged with protecting the rule of law to unduly influence it. That is a worrisome development and perhaps indicates the need to strengthen legislative protections for independent offices such as the AHRC to a level equivalent to the courts.

In a wider setting, it seems to indicate a confusion between maintaining goodwill and mandating endorsement. The AHRC statute makes it clear that the commission has discretion to investigate as it sees fit, not investigate simply what the government wants it to in a manner or at a time that is politically convenient.

That Triggs has apparently lost the support of the government for undertaking that statutory duty is evidence of a larger attitudinal problem the government has with contrary views and criticism. The consequence is a loss of the goodwill between the government and the AHRC that is so vital to effective executive scrutiny.

Without police or judicial powers, the AHRC requires government participation both to investigate matters and to put its recommendations into effect. Neither of those things is likely to happen now. The result is likely to be a commission with little traction or influence – but perhaps that was the point all along.

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