Purpose of the Bill

The purpose of the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 (the Bill) is to:

• remove the ability to appoint the President or Commissioners directly and ensure appointments to the Australian Human Rights Commission are made through ‘a merit-based and transparent process’ that was publicly advertised and thus open to all qualified members of the community[1]
• set out the qualifications, knowledge and experience requirements for the President, to ensure consistency with the requirements for most Commissioners, and require that the Minister be satisfied these requirements are met, prior to making an appointment[2]
• clarify that the total term of appointment (including any reappointment) for the President and all members of the Commission must not exceed 7 years.

A number of pieces of relevant legislation are amended to give effect to proposed amendments: the Age Discrimination Act 2004, the Australian Human Rights Commission Act 1986 (AHRC Act), the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

The proposed changes are intended to be part of ‘the Government’s commitment to integrity and transparency’, and in particular to ‘support the Commission’s reaccreditation as an A-status National Human Rights Institution’ which the Government considers is fundamental to ‘institutional independence, legitimacy and international credibility.’[3]

Background

Recent history behind the amendments

The Australian Human Rights Commission (AHRC) is an independent statutory organisation established in December 1986 by the AHRC Act. Situated within the Attorney-General's portfolio, the Commission serves as Australia’s national human rights institution (NHRI). The AHRC receives discrimination and human rights complaints which it investigates and conciliates. The AHRC’s work involves undertaking public education and conducting major inquiries into human rights issues of national significance, such as its Respect@Work Inquiry.

The Commission also advocates to government for the consideration of human rights laws and policy making, provides advice, reviews laws and makes submissions to parliamentary inquiries (for more detailed information see Parliamentary Library’s Briefing Book article on the AHRC).

The AHRC has a President, Rosalind Croucher and seven commissioners who are each responsible for a different area of human rights:

• June Oscar (Aboriginal and Torres Strait Islander Social Justice Commissioner)
• Dr Kay Patterson (Age Discrimination Commissioner)
• Anne Hollonds (Children’s Commissioner)
• Dr Ben Gauntlett (Disability Discrimination Commissioner)
• Lorraine Finlay (Human Rights Commissioner)
• Chin Tan (Race Discrimination Commissioner) and
• Kate Jenkins (Sex Discrimination Commissioner).

The appointments of two commissioners, Lorraine Finlay and Dr Ben Gauntlett have been criticised by commentators and human rights experts for not being made pursuant to a merit- based appointment process.

Recent findings from the Australian National Audit Office (ANAO) highlighted the precarious financial position of the AHRC. The auditor’s report on the 2020-21 financial statements of the Commission noted that ‘a material uncertainty exists that may cast significant doubt on the Commission’s ability to continue as a going concern’ (p. 85). An interdepartmental steering group was created, and a $16 million equity injection given to the AHRC to address these concerns. However, in the 2022-23 federal Budget, funding to the AHRC is forecast to fall over the forward estimates. For further information on financial issues see the Parliamentary Library Budget Review on the Australian Human Rights Commission.

GANHRI Review

GANHRI is one of the largest human rights networks in the world and is constituted as a non-profit organisation under Swiss law. It has a Bureau of 16 ‘A status’ NHRIs who represent the four regions of GANHRI. The Sub-committee on Accreditation (SCA) of GANHRI has the mandate to review and analyse accreditation applications and to make recommendations to the GANHRI Bureau on the compliance of applicants with the Paris Principles, which set out the minimum standards that NHRI must meet in order to be considered credible and to operate effectively.  

Australia has recently had its ‘A status’ as an NHRI called into question. In March 2022, the GANHRI SCA determined that the AHRC’s application for reaccreditation would be deferred for 18 months to give Australia an opportunity to address the SCA’s concerns, namely:

• 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 and
• the adequacy of the AHRC’s funding.

For further information please see a recent Parliamentary Library Briefing Book article on this matter.

In practical terms, if Australia does not respond to the issues raised to the satisfaction of GANHRI, the AHRC may be downgraded to ‘B status’. This means that it would lose its rights to independent participation at the UN Human Rights Council and other UN mechanisms and would only be able to participate as an observer.

The major concern of the SCA is how AHRC Commissioners are appointed and that previous appointments have bypassed a transparent merit-based selection process. The AHRC notes:

This latest report of 29 March 2022 reflects feedback from the Committee over a 10-year period about Australia’s appointment processes, with three appointments in this timeframe that did not meet the accreditation requirements.[4]

This is the first time the AHRC has been at risk of losing its A status.

Other countries

It should be noted that other countries that are well regarded for human rights have B status including Belgium and Sweden. Belgium’s NHRI (the Interfederal Centre for Equal Opportunity and fight against racism and discrimination (UNIA)) lost its a status due to issues such as its human rights mandate, interaction with the international human rights system and member selection and appointment. For example, Belgium was criticised for not submitting reports to all UN treaty bodies during the periodic review of Belgium.

Sweden’s Disability Ombudsman was downgraded from A to B status as its mission is limited to issues of equal rights and its autonomy is compromised in that the Government both appoints and can remove ombudsman from office without clear criteria being established for these procedures.

Committee consideration

At the time of writing, the Bill has not been referred to a committee for inquiry.

Senate Standing Committee for Selection of Bills

The Selection of Bills Committee has deferred consideration of this Bill to its next meeting.[5]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had not considered the Bill at the time of writing.[6]

Policy position of non-government parties/independents

No views have been made available at this point in time.

Position of major interest groups

The proposed amendments have been met with support from key stakeholders and commentators.

The Human Rights Law Centre welcomed the introduction of the Bill. Keren Adams, Acting co-CEO of the Human Rights Law Centre said:

“Whether it’s dealing with the indefinite detention of refugees, sexual harassment in our Parliament or the shameful treatment of Aboriginal and Torres Strait Islander peoples, it’s critical that Australia has a strong and independent Australian Human Rights Commission. We commend the Attorney-General Mark Dreyfus QC for prioritising the need for a transparent, merit-based selection process for future Commissioner appointments. The Government must now also move quickly to restore funding to the Commission so it can properly do its important work.”

Professor Justine Nolan, Director of the Australian Human Rights Institute said:

“The Australian Human Rights Commission must be independent from government. Without clear, transparent and merit-based processes for appointments, this will not happen. Its legitimacy on the world stage and ability to participate at the UN Human Rights Council hangs in the balance unless these political, handpicked appointments end. This Bill is the first step to restoring the Commission’s credibility and people’s confidence in its long-term ability to effectively protect human rights.”

Tim O’Connor, Impact Director of Amnesty International said:

“The commitment from the Albanese government to ensure transparency and integrity around appointments to the Human Rights Commission is an extremely welcome move.

“It’s essential for this organisation and its credibility and efficacy that it is independent from government, so we welcome this Bill which will ensure appointments to the Human Rights Commission are transparent and merit-based.”

Genevieve Henderson, National President, Australian Lawyers Alliance said:

To maintain the credibility of the Australian Human Rights Commission, it is essential that a public, transparent and merit-based selection process for senior members of the Commission is legislated.

…

Australia’s international human rights reputation was being undermined by processes that lacked transparency and resulted in a return by the previous Government to hand-picked appointments for critical positions within the Commission.

…

This will … help to maintain public confidence in the Human Rights Commission as a fearless, independent agency that holds government to account for human rights compliance.

Prior to this Bill there was considerable commentary raising concerns about the AHRC. This included for example commentary by academics, who questioned the fall in the AHRC’s funding over forward Budgets.

The Australian Human Rights Commission itself said of the GANHRI review:

The Commission’s President, Emeritus Professor Rosalind Croucher AM, has shared with the Government the Commission’s concerns over the implications of the deferral and potential risks to the promotion and protection of human rights in Australia, as well as Australia’s reputation internationally.

The Commission continues to advocate for the necessary policy and legislative changes to ensure Commissioner appointments are publicly advertised and subject to an open, transparent and merit-based process, in line with our international commitments. The Commission will continue to work with the Government, the Parliament and civil society to secure a successful re-accreditation as an A-status NHRI in 2023.

Financial implications

The Explanatory Memorandum states that the Bill will ‘have a minor financial impact on Commonwealth Government departments and the Commission in order to implement merit-based selection and appointment processes’.[7]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[8]

Parliamentary Joint Committee on Human Rights

The Committee had not reported on the Bill at the time of writing.

Key issues and provisions

Merit-based and publicly advertised selection process

As explored above, GANHRI’s key concern in relation to the AHRC was the legitimacy and independence of processes for the selection and appointment of AHRC Commissioners.[9] The Bill proposes amendments to address GANHRI’s concern by stipulating that a person must not be appointed as President or a Commissioner unless the Minister is satisfied that the person was selected for appointment as a result of a process that was merit-based and included public advertising of the position.[10]

The Explanatory Memorandum to the Bill provides:

Public advertising includes advertising in the national media, such as in national or other broad-reaching newspapers, as well as on government websites, as relevant.[11]

The term ‘merit-based’ is not defined in the Bill or in the Acts that it amends. The Attorney-General’s second reading speech for the Bill advises:

These legislative provisions will be supported by comprehensive policy guidelines to provide further guidance on what constitutes a merit based selection process.[12]

Currently the appointment and selection of the President and Commissioners of the AHRC is conducted in accordance with the Australian Public Service Government’s Merit and Transparency Policy (the Policy).[13] 

The Policy applies a transparent and merit-based assessment in the selection of most Australian Public Service (APS) agency heads and other statutory office holders working in, or in conjunction with APS agencies.[14] The Policy defines merit-based recruitment as occurring where:

• an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process
• the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required for the duties
• the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties and
• the assessment is the primary consideration in making the decision.[15]

The President of the AHRC advises:

The APSC Guidelines are not sufficient to meet the Paris Principles requirements for a clear, transparent, merit-based and participatory selection and appointment process, that is formalised in relevant legislation, regulations or binding administrative guidelines.

The APSC Guidelines also breach the Paris Principles requirements by allowing for appointments to be made without publicly advertised processes in exceptional circumstances.[16]

There is no indication that the Government will seek to apply the current Policy, rather than create new ‘comprehensive policy guidelines’ to provide further guidance on what constitutes a merit based selection process.[17]

Qualification requirements

Currently, a person may only be appointed as a Commissioner (other than the Aboriginal and Torres Strait Islander Social Justice Commissioner) ‘if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience’.[18] Recognising the unique requirements of the role, a person may only be appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner if they have ‘significant experience in community life of Aboriginal persons or Torres Strait Islanders’.[19] These current requirements for Commissioners (including the differing requirement for the Aboriginal and Torres Strait Islander Social Justice Commissioner) remain in the Bill.[20]

The Bill introduces qualification requirements for the AHRC President, a role which has not previously been subject to such requirements. Mirroring the requirements for the six Commissioners other than the Aboriginal and Torres Strait Islander Social Justice Commissioner, a person will only be eligible for appointment as President if the Minister is satisfied that they have ‘appropriate qualifications, knowledge and experience’.[21] 

Reappointments

The new requirements in relation to merit-based processes and public advertising of the positions of President and commissioners will not apply to the reappointment of a person who, immediately before the start of the reappointment, holds office under a previous appointment.[22] 

Maximum term of appointments

In addition to its key concern regarding the legitimacy and independence of processes for the selection and appointment of AHRC Commissioners, the SCA of GANHRI also drew attention to the fact that the legislation is ‘silent on the number of times a member can be reappointed, which leaves open the possibility of unlimited tenure'.[23]  It commented:

In order to promote institutional independence, the SCA is of the view that it would be preferable for the term of office to be limited to one appointment.[24]

The Bill proposes amendments that will limit the term of office of the President or a commissioner to 7 years in total, including reappointments.[25] 

Application to existing appointments

The amendments made by the Bill do not affect the validity of an appointment made before the Bill commences, or the period of appointment that was specified in an instrument of appointment before that commencement.[26] This means that appointments made before the Bill commences continue according to their terms.