Australian Human Rights Commission


Dr Shannon Torrens, Law and Bills Digest

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.

Human rights

Human rights are rights that are inherent to all human beings. They are rights that everyone has regardless of their race, sex, nationality, ethnicity, language, religion, or other status.

The 1948 Universal Declaration of Human Rights notes that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’ (Preamble).

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.

Human rights treaties

Australia is a party to the following core 7 human rights treaties:

International Covenant on Civil and Political Rights (ICCPR)

International Covenant on Economic, Social and Cultural Rights (ICESCR)

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Convention on the Rights of the Child (CRC)

Convention on the Rights of Persons with Disabilities (CRPD)

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.

Treaties mentioned in the GHANRI Decision

The Convention Against Torture is the most significant treaty responding to torture and obliges signatories to prohibit and prevent torture and cruel, inhuman or degrading treatment or punishment in all circumstances.

The International Covenant on Economic, Social and Cultural Rights aims to ensure the rights of all people to enjoy economic, social and cultural rights, including the right to an adequate standard of living, adequate food, clothing and housing and the continuous improvement of living conditions (Article 11).

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).

 

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