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
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.