Recently, Australian Human Rights Commission President Gillian Triggs has been under intense criticism, particularly by The Australian newspaper for her handling of an AHRC report involving a West Papuan man called John Basikbasik.Two points should be made at the outset. First, Triggs is not a judge, and accordingly her decision was not binding. The report contained recommendations which could be rejected by the Minister. Secondly, the Minister did in fact reject President Triggs’ recommendations in May 2014. Mr Basikbasik remains detained and will not receive the recommended compensation.
As these two recent articles in The Australian indicate, the criticisms are being made in the context of a wider furore about the timing of Triggs’ AHRC report into children in detention. Indeed, Richard Ackland has claimed that The Australian newspaper is focusing on the Basikbasik case for this reason. Academic opinion about the Basikbasik case has generally been on Triggs’ side, as prominent Australian international law scholars and others have written to express their support of Triggs’ determination in the Basikbasik case. Professor Mirko Bagaric of Deakin University was a rare exception, and expressed the view that the determination was in error because it took into account the International Covenant on Civil and Political Rights (‘ICCPR’). On Friday last week, The Australian published an article by Professor Ben Saul of Sydney University which was strongly in favour of Triggs. As Professor Saul points out, the definition of the “human rights” under s 3 of the Australian Human Rights Commission Act 1986 (Cth) expressly mentions the ICCPR as a source of such rights.
There is a High Court link to the furore, as the Basikbasik case came before the High Court in 2013, although he was called SZOQQ. It was Keane J’s first judgment (and thus all other judges concurred with his Honour’s decision). It is worth going over the facts of the case for some more context. Mr Basikbasik is an Indonesian man who came from the West Papuan province of Irian Jaya, and who belonged to the Free Papua Movement. He was detained and tortured by Indonesian officials in 1973, and was seriously injured after being shot by the Indonesian military in 1975. He was granted temporary entry into Australia in 1985, and later various protection visas were granted. He returned to Irian Jaya in late 1996 to see his father, and was detained and physically assaulted by the Indonesian military. He escaped back to Australia in 1997.
In 2000, Mr Basikbasik was arrested for having assaulted his de facto spouse, who was pregnant at the time. Four days later, the spouse died as a result of her injuries. Mr Basikbasik pleaded guilty to manslaughter and was sentenced to seven years imprisonment. He served his full sentence in prison with no parole.
The Minister for Immigration cancelled Mr Basikbasik’s protection visa in 2003 on the basis of the “character test” provisions in s 501 of the Migration Act 1958 (Cth). When Mr Basikbasik was released from prison in June 2007, he was immediately taken into an immigration detention centre because he no longer had the benefit of a protection visa. He made a number of applications to have his protection visa reinstated on the basis that he had a well-founded fear of persecution, but his applications were refused by the Minister for Immigration and his delegates. Mr Basikbasik challenged those determinations in the Administrative Appeals Tribunal and the Federal Court, and eventually ended up in the High Court in SZOQQ v Minister for Immigration and Citizenship  HCA 12. The High Court decided that the Administrative Appeals Tribunal had not determined Mr Basikbasik’s case in accordance with the law, and that the AAT should not have had regard to Article 33(2) of the Refugees Convention in making its determination. Article 33(2) states that the benefit of refoulement provisions are unavailable to a refugee who has committed a “particularly serious crime” and constitutes a danger to the community. Meanwhile, the relevant Minister continued to refuse to grant Mr Basikbasik a temporary protection visa.
In the AHRC Report, President Triggs said that Mr Basikbasik could have been detained in a less restrictive way than at an immigration detention centre (paras  – ). She opined that Mr Basikbasik’s detention was arbitrary pursuant to s 9(1) of the International Covenant on Civil and Political Rights, and she noted that a function of the AHRC was to inquire into acts or practices which were inconsistent with or contrary to human rights (s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth)). She recommended that the government should consider whether Mr Basikbasik could be detained in a less restrictive manner, and that he should be paid $350,000 in compensation. As noted above, the Minister rejected that recommendation in May 2014. Consequently, it is difficult to see why the case became an issue now, particularly as the recommendations were rejected in any case.
Triggs’ recommendation that Mr Basikbasik be paid $350,000 in compensation seems to have prompted much of the outrage. Putting a figure on the loss caused by arbitrary detention is difficult. It is a non-pecuniary loss: a loss which adversely affects the person without necessarily impacting upon their financial position. Those who only read the media reports without the full context might be tempted to believe that Triggs pulled the figure out of the air. However, the Report indicates that this is not so. Triggs recommended that Mr Basikbasik’s arbitrary detention should be analogised to the common law tort of false imprisonment. She cited Fernando v Commonwealth of Australia (No. 5)  FCA 901, a case where a non-citizen was wrongfully detained after his visa was revoked for criminal activity. Siopis J found that Mr Fernando would have been entitled to $265,000 for false imprisonment in respect of his wrongful detention for 1203 days, but that the Commonwealth would had the power to detain him lawfully and would have done so in any case, and thus he was only entitled to nominal damages. One can see that Mr Basikbasik’s award is less generous than the the quantum suggested in Fernando. Indeed, as Professor Saul observes in the article linked above, Cornelia Rau received $2.6 million damages for her ten month period in immigration detention.
As Dr Sirko Harder and I have noted in Remedies in Australian Private Law (CUP, 2014) pg 23, two objections are sometimes made to the payment of damages for non-pecuniary loss : (1) no amount of damages can compensate the plaintiff for that kind of loss and (2) putting a figure on a non-pecuniary loss is difficult. However, this does not mean that non-pecuniary losses should not be compensated. It is surely better to recognise that a non-pecuniary loss such as loss of liberty is a loss because liberty is something that we value. And in an economic sense, loss of liberty can be thought of in pecuniary terms because a person would be willing to spend money to avoid it.
Mr Basikbasik’s case is a difficult one. It is certainly true that Mr Basikbasik’s crime tends to provoke revulsion, and thus it is more difficult to feel sympathy for him than for another person who has not committed such a crime. On the other hand, it should be noted that he served the full sentence for his crime, without parole, and that he has been duly punished in accordance with the law. In that context, Triggs’ recommendation makes sense.
[Disclosure: Gillian Triggs was a Professor at Melbourne Law School from 1996 to 2005.]