Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022


Bills Digest No. 002, 2022–23

PDF version [429KB]

Dr Shannon Torrens
Law and Bills Digest Section
2 August 2022

Key points

  • The Australian Human Rights Commission is Australia’s National Human Rights Institution (NHRI). NHRIs are accredited by the  Global Alliance of National Human Rights Institutions (GANHRI).
  • A recent GANHRI review has called the ‘A status’ of the AHRC into question due to concerns over the legitimacy and independence of processes for the selection and appointment of AHRC Commissioners. Concern was also raised with the potentially unlimited current term of Commissioners.
  • The Bill proposes amendments that aim to respond to GANHRI’s concerns by requiring merit-based and publicly advertised appointment processes and a maximum 7-year term for the President and Commissioners of the AHRC.
  • ‘Merit-based’ is not defined. The Government has undertaken to provide further guidance in ‘comprehensive policy guidelines’.

Contents

Purpose of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions

Date introduced:  27 July 2022
House:  House of Representatives
Portfolio:  Attorney-General
Commencement:  The day after the Act receives Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2022.

 

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.

[1].      The content of these requirements are to be ‘supported by comprehensive policy guidelines to provide further guidance on what constitutes a merit-based selection process.’  M Dreyfus, Second Reading Speech: Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, House of Representatives, Debates, 27 July 2022, 35.

[2].      However, these changes leave unchanged the existing distinct qualification requirements for the Aboriginal and Torres Strait Islander Social Justice Commissioner, which requires appointees to that position to have significant experience in community life of First Nations people—section 46B of the Australian Human Rights Commission Act 1986.

[3].      M Dreyfus, Second Reading Speech: Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, House of Representatives, Debates, 27 July 2022, 35. Concerns have been raised by the Global Alliance of National Human Rights Institutions (GANHRI) Sub-committee on Accreditation (SCA) in relation to the selection and tenure of members of the Commission (see background below for explanation of these issues).

[4].      Statement on international accreditation of the Australian Human Rights Commission, Australian Human Rights Commission (AHRC), 7 April 2022.

[5].      Senate Standing Committee for Selection of Bills, Report, 2, 2022, 27 July 2022.   

[6].      ‘Index of Bills considered by the committee’, Senate Standing Committee for the Scrutiny of Bills.

[7].      Explanatory Memorandum, Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, 2.

[8].      The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[9].      Australia: Australian Human Rights Commission (AHRC), Sub-committee on Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI).

[10].    Item 2 (proposed paragraph 53A(2)(b) of the Age Discrimination Act 2004) applies this requirement to the appointment of the Age Discrimination Commissioner; Items 5 and 6 (proposed paragraphs 8A(1A)(b) and 8B(2)(b) of the Australian Human Rights Commission Act 1986) to the appointment of the President and the Human Rights Commissioner, respectively; Item 10 (proposed paragraph 46B(2)(b) of the Australian Human Rights Commission Act 1986) to the appointment of the Aboriginal and Torres Strait Islander Social Justice Commissioner; Item 13 (proposed paragraph 46MC(2)(b) of the Australian Human Rights Commission Act 1986) to the appointment of the National Children’s Commissioner; Item 17 (proposed paragraph 113(2)(b) of the Disability Discrimination Act 1992) to the appointment of the Disability Discrimination Commissioner; Item 20 (proposed paragraph 29(2)(b) of the Racial Discrimination Act 1975 to the appointment of the Race Discrimination Commissioner; and Item 23 (proposed paragraph 96(2)(b) of the Sex Discrimination Act 1984) to the appointment of the Sex Discrimination Commissioner.

[11].    Explanatory Memorandum, Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, 7.

[12].    M Dreyfus, Second Reading Speech: Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, House of Representatives, Debates, 27 July 2022, 35–36.

[13].    Government’s Merit and Transparency policy, Australian Public Service Commission; R Croucher, Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022: AHRC Background Briefing Note, 1 August 2022, 3. 

[14].    Government’s Merit and Transparency policy, Australian Public Service Commission.

[15].    Government’s Merit and Transparency policy, Australian Public Service Commission.

[16].    R Croucher, Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022: AHRC Background Briefing Note, 1 August 2022, 3-4.

[17].    M Dreyfus, Second Reading Speech: Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, House of Representatives, Debates, 27 July 2022, 35–36.

[18].    Subsection 53A(2) of the Age Discrimination Act 2004; subsections 8B(2) and 46MC(2) of the Australian Human Rights Commission Act 1986; subsection 113(2) of the Disability Discrimination Act 1992); subsection 29(2) of the Racial Discrimination Act 1975; and subsection 96(2) of the Sex Discrimination Act 1984.

[19].    Subsection 46B of the Australian Human Rights Commission Act 1986.

[20].    Item 2 (proposed paragraph 53A(2)(a) of the Age Discrimination Act 2004; Items 6, 10 and 13 (proposed paragraphs 8B(2)(a) 46B(2)(a) and 46MC(2)(a) of the Australian Human Rights Commission Act 1986; Item 17 (proposed paragraph 113(2)(a) of the Disability Discrimination Act 1992; Item 20 (proposed paragraph 29(2)(a) of the Racial Discrimination Act 1975; and Item 23 (proposed paragraph 96(2)(a) of the Sex Discrimination Act 1984.

[21].    Item 5 (proposed paragraph 8A(1A)(a) of the Australian Human Rights Commission Act 1986.

[22].    Item 2 (proposed subsection 53A(3) of the Age Discrimination Act 2004; Items 5, 6, 10 and 13 (proposed subsections 8A(1B),  8B(3), 46B(3) and 46MC(3) of the Australian Human Rights Commission Act 1986; Item 17 (proposed subsection 113(3) of the Disability Discrimination Act 1992; Item 20 (proposed subsection 29(3) of the Racial Discrimination Act 1975; and Item 23 (proposed subsection 96(3) of the Sex Discrimination Act 1984.

[23].    Australia: Australian Human Rights Commission (AHRC), Sub-committee on Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI). The legislation currently provides that the President or a commissioner ‘holds office for such period, not exceeding 7 years, as is specified in the instrument of [their] appointment, but is eligible for re-appointment’ or similar wording (in combination with section 33AA of the Acts Interpretation Act 1901, which specifies that the power to appoint includes a power to reappoint). See subsection 53B(1) of the Age Discrimination Act 2004; subsections 37(1) and 46D(1), and section 46MD of the Australian Human Rights Commission Act 1986; subsection 114(1) of the Disability Discrimination Act 1992); subsection 30(1) of the Racial Discrimination Act 1975; and subsection 97(1) of the Sex Discrimination Act 1984.

[24].    Australia: Australian Human Rights Commission (AHRC), Sub-committee on Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI). 

[25].    Item 4 (proposed subsection 53B(1A) of the Age Discrimination Act 2004; Items 9, 12 and 16 (proposed subsections 37(2) and (3), 46D(1A) and 46MD(2) of the Australian Human Rights Commission Act 1986; Item 19 (proposed subsection 114(1A) of the Disability Discrimination Act 1992; Item 22 (proposed subsection 30(2) of the Racial Discrimination Act 1975; and Item 25 (proposed subsection 97(2) of the Sex Discrimination Act 1984.

[26].    Item 26.

 

For copyright reasons some linked items are only available to members of Parliament.

© Commonwealth of Australia

Creative commons logo

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.