Key issue
The Australian Human Rights Commission (AHRC) is an independent statutory authority that protects and promotes human rights in Australia.
The AHRC is Australia’s National Human Rights Institution (NHRI) and is a member of the Global Alliance of National Human Rights Institutions (GANHRI). GANHRI reviews and accredits NHRIs. ‘A-status’ NHRIs have independent participation rights at the United Nations Human Rights Council, its subsidiary bodies and some General Assembly bodies and mechanisms. They are eligible for full membership of GANHRI, including the right to vote and hold governance positions. NHRIs accredited with ‘B status’ participate in GANHRI meetings but are unable to vote or hold governance positions.
The AHRC currently has ‘A-status’ accreditation. However, in March 2022 GANHRI raised a number of concerns in relation to the AHRC’s application for re-accreditation and has delayed a final decision for 18 months, to allow time for its concerns to be addressed. If the issues raised by GANHRI are not addressed to its satisfaction, the AHRC’s accreditation status may be downgraded.
Work of the AHRC
Established by the Australian
Human Rights Commission Act 1986, the AHRC investigates and
conciliates complaints about discrimination and human rights breaches,
advocates to government for the consideration of human rights in laws and
policy making, and provides advice, reviews laws, and makes submissions to
parliamentary inquiries.
The AHRC has an important role in promoting and
raising awareness about human rights issues through education and training, as
well as events, discussion and media outreach. The AHRC also undertakes research
into human rights and discrimination issues in Australia and holds national
inquiries into human rights issues.
The AHRC has power to intervene, with leave of the court, in relevant proceedings
and AHRC Commissioners may also assist the Federal Court and the Federal
Circuit and Family Court of Australia as a friend of the court
(amicus curiae). In addition, the AHRC produces guidelines
for employers and provides training and resources for organisations to assist
them in supporting diversity and inclusion and addressing modern slavery. The AHRC also runs international education and training programs for other human
rights institutions in the Asia-Pacific region.
Finally, the AHRC takes part in the monitoring and
scrutinising of Australia’s performance in meeting its international human
rights commitments and, in doing so, provides independent reports to the UN.
The AHRC comprises a president, Rosalind Croucher,
as well as 7
commissioners who are each responsible for a different area of human rights
(predominantly in relation to a specific form of discrimination). The current
commissioners are:
- June Oscar (Aboriginal and Torres Strait Islander Social Justice
Commissioner)
- Kay Patterson (Age Discrimination Commissioner)
- Anne Hollonds (Children’s Commissioner)
- Ben Gauntlett (Disability Discrimination Commissioner)
- Lorraine Finlay (Human Rights Commissioner)
- Chin Tan (Race Discrimination Commissioner)
- Kate Jenkins (Sex Discrimination Commissioner).
GANHRI Review
The AHRC is Australia’s National Human Rights
Institution (NHRI) and is a member of the Global Alliance of National Human Rights Institutions (GANHRI). The minimum standards that NHRIs must meet in order
to be considered credible and to operate effectively are set
out in the Principles relating to the Status of National Institutions (the Paris Principles), adopted by the UN General Assembly
in 1993. The Paris Principles deal with the responsibilities and
composition of NHRIs and seek to guarantee their independence from government,
including through requirements for appointment of NHRI members and provision of
adequate funding.
GANHRI reviews and accredits NHRIs in compliance with the Paris Principles. NHRIs that
are assessed as complying with the Paris Principles are accredited with
‘A status’. Those that only partially comply have ‘B status’. ‘A-status’
NHRIs have independent participation rights at the UN Human Rights Council, its
subsidiary bodies and some General Assembly bodies and mechanisms. They are
eligible for full membership of GANHRI, including the right to vote and hold
governance positions. NHRIs accredited with ‘B status’ participate in GANHRI
meetings but are unable to vote or hold governance positions.
GANHRI has 120 members,
90 accredited as 'A-status' NHRIs and 30 as 'B-status' NHRIs– the latter includes
NHRIs in Sweden, Belgium, Myanmar, and Libya. Compliance reviews are carried
out by the Sub-Committee on
Accreditation (SCA) of GANHRI, with its
recommendations submitted for acceptance by the GANHRI Bureau (the final
decision-maker).
A NHRI is reviewed by the SCA against the Paris Principles when it first
applies for accreditation and every 5 years after that, when it must apply
for re-accreditation.
At its March 2022 session, the SCA determined that the AHRC’s application for re-accreditation would
be deferred for 18 months to give Australia an opportunity to address the SCA’s
concerns regarding:
- the legitimacy and independence of processes for the selection and
appointment of AHRC commissioners
- the ability to re-appoint commissioners more than once
- the AHRC’s limited legislative mandate
- the adequacy of the AHRC’s funding.
If Australia does not respond to the issues raised
to GANHRI’s satisfaction, the AHRC may be downgraded to B status, losing
its rights to independent
participation at the UN Human
Rights Council and other UN mechanisms, and
only able to participate
as an observer.
This is the first time the AHRC has been at risk of
losing its 'A status', and comes amidst domestic concerns about the AHRC’s financial
viability.
Selection and appointment
The SCA’s most significant concern is how AHRC
commissioners are appointed and the ability to bypass a transparent merit-based
selection process. In its General Observation 1.8 on "Selection and appointment of the
decision-making body of NHRls" the SCA states that a selection and
appointment process ‘that promotes merit-based selection and ensures
pluralism is necessary to ensure the independence of, and public confidence in,
the senior leadership of an NHRI’. To this end, the SCA considers that such a
process should include requirements to:
- publicise vacancies broadly
- maximise the number of potential candidates from a wide range of
societal groups
- promote broad consultation and/or participation in the application,
screening, selection and appointment process
- assess applicants on the basis of pre-determined, objective and
publicly available criteria
- select members to serve in their own individual capacity rather than
on behalf of the organisation they represent.
AHRC commissioners are appointed by the
Governor-General acting with the advice of the Federal
Executive Council (see sections 8B, 46B, 46MC of the Australian Human
Rights Commission Act 1986; section 53A of the Age Discrimination
Act 2004; section 113 of the Disability
Discrimination Act 1992; section 29 of the Racial
Discrimination Act 1975 and section 96 of the Sex Discrimination
Act 1984). Appointment processes are set out in the Government’s
merit and transparency policy which specifies a ‘merit-based and
transparent process’ for filling vacancies, and in the Cabinet
handbook, which states:
Where a significant Government appointment is
proposed, the responsible minister must write to the Prime Minister seeking
approval of the appointment before any appointment action is finalised. While
most significant appointments will require Cabinet approval, the Prime Minister
may determine that Cabinet consideration is not required and authorise the
appointment’ (p. 22).
While outlining the provisions for transparent and merit-based assessment set out in the Government’s
merit and transparency policy, the SCA notes that the policy provides for ‘circumstances where the
Attorney-General may consider that a full selection process is not required’.
These include where there is an urgent requirement to fill a position, and the
availability of an eminent person ‘where there would be little value in conducting
a selection process’. Such appointments must be approved by the Prime Minister.
The SCA’s recent decision reiterates concerns expressed in the 2016
GANHRI report that ‘such appointments have the potential to bring into
question the legitimacy of appointees and the independence of the NHRI’.
Re- appointment of Commissioners
As noted above, the SCA also raised concern in relation to the potentially unlimited
terms of office of AHRC commissioners. The AHRC Act, the Anti‑Discrimination Acts and the Acts Interpretation Act 1901 allow the reappointment of members. However,
the SCA has mentioned that there is a silence in the law on the number of times
an individual can be reappointed. This means that there are no limits to the
duration of tenure, which was of concern to the SCA. In order to promote institutional
independence, the SCA considers that it would be preferable for the term
of commissioner’s office to be limited to one reappointment.
Mandate of the AHRC
The decision also notes that the AHRC Act does not make explicit reference to the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, or the ICESCR.
The decision notes that, while the AHRC interprets its legislation to include
all human rights, the Paris Principles require that the NHRI should have a
legislative mandate that specifically encompasses all relevant sources of human
rights.
AHRC funding
The SCA decision, as well
as a 2022 Parliamentary
Library Budget review article, outline concerns over
the finances of the AHRC, with reduced funding over the forward estimates (see the 2022–23
federal Budget (p. 136). The SCA decision emphasises that ‘to
function effectively, an NHRI must be provided with an appropriate level of
funding in order to guarantee its ability to freely determine its priorities
and activities’. It encourages the AHRC to ‘advocate for an
appropriate level of funding to ensure the sustainability of its funding base
in carrying out its mandate’.
Timing of final accreditation decision
A final decision on the AHRC’s accreditation status
will be made in October
2023. The SCA’s recent decision ‘encourages
the AHRC to take the actions necessary to address these issues and to provide
further information and evidence’ in relation to measures to address the SCA’s
concerns. If those concerns are not addressed to the satisfaction of the SCA,
the AHRC’s accreditation status could be downgraded to ‘B status’.
Further reading
Australian Human Rights Commission (AHRC), Annual Report 2020 -2021, (Sydney: AHRC, 2021).
Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone, (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Oxfordshire: Routledge, 2020).
Michele Brennan and Dr Shannon Maree Torrens, ‘Australian Human Rights Commission’, Budget Review 2022- 23, Research paper, 2021-22, (Canberra: Parliamentary Library, April 2022).
Stephanie Gill, ‘Ten Years of Examining Human Rights’, FlagPost (blog), Parliamentary Library, 16 March 2022.
Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law, (Cheltenham: Edward Elgar, 2010).