Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

I rise to speak on behalf of opposition senators to put the opposition's position on the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 on the record.

The coalition has a strong history of supporting the Australian Human Rights Commission and human rights work both in Australia and overseas whilst in government. It was under the coalition government that Australia was elected to the Human Rights Council, Australia's autonomous sanction laws were expanded through the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021 and the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Regulations 2021, and Australia sought an independent review into the origins of the COVID-19 virus by the World Health Organization which a record 145 countries co-sponsored.

This bill responds to a technical process issue raised by the Global Alliance of National Human Rights Institutions Sub-Committee on Accreditation in the relation to aspects of the appointment processes for the Australian Human Rights Commission and the potential length of tenure of commissioners. The Global Alliance of National Human Rights Institutions reviews and accredits the NHRIS, based on the United Nations General Assembly principles relating to the status of national institutions, also known as the Paris Principles. The Australian Human Rights Commission has held A status accreditation since 1999, when the accreditation regime was put in place.

While supporting the bill, it is important to acknowledge that these accreditation processes are not perfect, are focused on process issues rather than practical human rights outcomes, and are designed for developing countries without a strong history of independent institutions. By way of example, Sweden's NHRI, the discrimination ombudsman, was downgraded to B status in 2011. The subcommittee determined its mandate was too narrow as it focused on equal rights but didn't consider nondiscrimination. The subcommittee was also concerned because, like Australia, the government appoints and can remove the ombudsman, so Sweden, despite its strong human rights record, has a B status NHRI.

Again, by way of example, Belgium's NHRI, the Interfederal Centre for Equal Opportunities, was also given B status accreditation in 2018. Once again, the subcommittee was concerned its mandate was too narrow as it didn't cover the full range of human rights and was only responsible for combating racism and discrimination. This was despite the fact it acknowledged that, while in practice its mandate was interpreted broadly, it didn't have clear legislative backing for a broad human rights approach. Concerningly, despite the panic over A status, if we were to look more closely at what the Global Alliance of National Human Rights Institutions classes as A-status organisations, we would find those in countries such as Benin, the Russian Federation, Uganda, Ethiopia, Rwanda, Ghana. I would hardly say a country like Belgium or Sweden has grave human rights concerns, yet, under this accreditation process, they are worse than countries with significant human rights concerns.

In March 2022, in the same review Australia was threatened with a downgrade, some other countries which seemed to excite the same criticism as Australia had received from the global alliance nevertheless had their A status confirmed. For instance, Benin was accredited for the first time. Benin was given A status, despite the subcommittee expressing concern that its appointments weren't independent or transparent.

While coalition senators are not opposing this bill, we do stand by the high-quality appointments to the Human Rights Commission that the coalition did make while in government. I particularly want to observe, note and thank them for their service and the contribution they have made to the discussion on the protection of human rights in our country. All of these people are and have been distinguished Australians who have made particular contributions to safeguarding and advancing human rights in this country and beyond its shores. As a liberal democracy with a commitment to human rights, which I might add is shared across this parliament, Australia delivered on key priorities during the coalition's period in office. On the council, Australia spoke out: against Russia's attack on Ukraine and its people; against the Chinese Communist Party's human rights violations; against the deteriorating human rights situations in North Korea, Afghanistan, Ethiopia and Myanmar; against the erosion of human rights in Hong Kong; against the erosion of democratic institutions in Venezuela; and against the humanitarian toll of the conflicts in both Yemen and Syria.

Notwithstanding the clear issues with the accreditation process, the opposition does not oppose this legislation that seeks to address these process matters. It will enjoy our support, and we look forward to continuing to work very, very closely with like-minded countries across the world supporting human rights and the institutions that deliver these outcomes.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I indicated that the Greens will be supporting but seeking to amend the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill. This bill adds new criteria for the process of appointing members of the Australian Human Rights Commission, including a requirement for at least some merit based processes and public advertising. It applies to the President of the Australian Human Rights Commission, under the Human Rights Commission Act 1986, and each of the commissioners under the Age Discrimination Act, the Disability Discrimination Act, the Racial Discrimination Act and the Sex Discrimination Act.

It retains the existing requirements that commissioners need to have appropriate qualifications, knowledge or experience—and, in the case of the Aboriginal and Torres Strait Islander Social Justice Commissioner, that the person have significant experience in community life of Aboriginal persons or Torres Strait Islanders. It further amends those acts to clarify that the total term of appointments for presidents and commissioners cannot exceed seven years.

We're here because the politicisation of these positions by the former government was disgraceful, and it has tarnished the global reputation of Australia and the Human Rights Commission. The defence that we just heard, the defence that other countries have engaged in significant breaches and are being called to account, is a defence that's unworthy of any government that should care about human rights. The fact that other countries have failed—and to give the list of other countries that have failed, as the coalition did, and say, 'We're in a class of defaulters'—is no defence for the disgraceful efforts that the previous Morrison government made to tarnish Australia's human rights reputation.

This bill only partially delivers on an election promise by the ALP. It was in response to what is likely to be, without this and other measures, the downgrading of the Human Rights Commission by the Global Alliance of National Human Rights Institutions. They had clearly threatened to downgrade it from an A-status institution to a B-status institution. In doing that, they identified two particular appointments, and the lack of due diligence and process in those appointments, that clearly did not meet accreditation standards. They were the appointment of Ben Gauntlett as Disability Discrimination Commissioner in 2019, a political appointment by the government, and then the appointment of Lorraine Finlay as the Human Rights Commissioner in 2021, another clearly political appointment, without any due process, by the Morrison government.

The Global Alliance of National Human Rights Institutions has called for far broader reform than what Labor is offering with this bill. They are pressing for it, and their report says:

The SCA encourages the AHRC to continue to advocate for a selection process in law and practice that includes explicit requirements to:

a) Publicize vacancies broadly;

b) Maximize the number of potential candidates from a wide range of societal groups;

c) Promote broad consultation and/or participation in the application, screening, selection and appointment process;

d) Assess applicants on the basis of pre-determined, objective and publicly available criteria; and

e) Select members to serve in their own individual capacity rather than on behalf of the organization they represent.

Apart from the first point, pretty much none of the rest of that is implemented in this bill.

What this bill doesn't do is provide a pathway for identified positions for any of these senior appointments, a position that is increasingly out of step with global best practice and public expectations. The bill also fails to implement the requirements of the Paris Principles, particularly clause 1 of part 2, 'Composition and guarantees of independence and pluralism'.    That's important because in the Attorney's second reading speech he relied heavily on the Paris Principles as justification for these measures.

Clause 1 of part 2 of the Paris Principles provides that the composition of a National Human Rights Institution and the appointment of its members must 'ensure the pluralist representation' of civilian society through the presence of representatives of:

(a) Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists;

(b) Trends in philosophical or religious thought;

(c) Universities and qualified experts;

None of that is implemented in this bill. The Greens strongly support increasing rigour in the appointment process. But that is only the first step in creating a Human Rights Commission that meets minimal international standards and is up to the job of upholding human rights in Australia.

I pause here to note that one of the critical failures in the Australian Human Rights Commission is a woeful lack of budget—a woeful lack of resources that was in no way remedied in the most recent budget that we've just seen passed. I particularly want to draw the Senate's attention to the lack of identified positions as a particular concern and a breach of the Paris Principles and a non-response to UN criticism. It's just one element that needs to be addressed, but for that reason, the Greens in committee will be seeking to amend this bill to explicitly provide for an LGBTIQA+ human rights commissioner. I want to commend here the work of my colleague Stephen Bates, the member for Brisbane, who has been a powerful advocate for the addition of this commissioner, a powerful advocate for his community and a powerful advocate for the LGBTIQA+ community. We have seen in the last few years attack after attack on that community, often coming from the right of politics. These have been ugly, divisive attacks from the right of politics.

It's about time that the LGBTIQA+ community had a commissioner on their side, someone to go to who is unambiguously on their side, so that when the next set of attacks come—and they almost certainly will come from some ugly part of the political right in this country—they are guaranteed to have a commissioner on their side who is fully resourced to go in to bat for them. I'll speak further about that in committee.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I rise today to speak in support of Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022. As I understand it, this bill seeks to introduce greater transparency into the selection and appointment of commissioners to the Australian Human Rights Commission. The commission is one of our great public institutions, endeavouring every day to stamp out instances of discrimination in our society. Just the other month I had the pleasure of meeting the Disability Discrimination Commissioner, Dr Ben Gauntlett, and hearing about his work in pushing for greater equality and opportunity for people with disabilities across our community.

The presence of the Australian Human Rights Commission reminds us that in our nation—no matter the colour of your skin, your faith, your disability or whether you're part of the LGBTQIA community—everyone has a right to live their life free of discrimination. The commission supports this by monitoring our nation's compliance with international human rights standards and by providing a mechanism for people to lodge complaints in instances where they feel that they have been discriminated against. This includes instances where people feel they have been discriminated against by the Australian government, a department or agency or as a matter of policy. In this way the commission can also support the government and the parliament to identify and challenge areas of entrenched discrimination. They also advocate broadly for human rights to be better considered in lawmaking and policymaking.

The commission has a long history of providing frank and fearless advice to governments and to the public. To name one example, I remember well when in 2014 the commission released its watershed report, The Forgotten Children, into the detention of children in immigration centres. This sobering report found that Australia's policy of mandatory detention of asylum seeker children was causing significant mental and physical illness and developmental delays, in breach of Australia's human rights obligations. When the report's 324 pages were provided, amongst those pages the commission unflinchingly pronounced, 'Australia is better than this.' The commission drew significant ire from the then government, with a former Attorney-General allegedly asking for the Human Rights Commissioner to tender their resignation. However, the report's findings withstood all challenge—the product of extensive investigation and qualitative and quantitative research. The plight of these children may never have received the attention it deserved without the Human Rights Commission.

Our public institutions are at their best when they are holding truth to power and acting without fear or favour to bring issues to the attention of policymakers. We have the best people for these roles and we need to ensure that they also have the public's trust. But a loose set of laws, at least those underpinning this commission, have left room for political appointments that have undermined both public and international trust in this institution. This has occurred to the extent that the commission is currently at risk of losing its status as an A-grade national human rights institution and being downgraded to the B grade. This bill seeks to remedy that risk and will undoubtedly strengthen the commission as an institution by making clear that appointments to the commission must be merit based and made transparently. I welcome the new government's commitment to transparency. Much has been made by them about issues of transparency in the past and I look forward to them following through with this and ensuring that all legislation that comes through this place has a high degree of transparency.

This bill makes further amendments to ensure that all commissioners appointed hold appropriate qualifications, knowledge or experience. Simply, the bill ends a 'policy for mates' approach in the commission. This really should be standard across our public institutions. I think there's an expectation by Australians that people get jobs based on merit and not because of who they know. According to the Grattan Institute, seven per cent of all federal government appointees have a direct political connection. This figure rises to an alarming 21 per cent among those positions that are well paid, prestigious and/or considered powerful. This is an indictment on politics in Australia that needs to be remedied. Our communities are frustrated with this and they want it to change. This is a welcome first step in the right direction to actually deal with these sobering figures.

Political appointments harm our democracy and significantly undermine confidence in our public institutions. This means that we miss out, and have been missing out, on the most qualified and knowledgeable people to fill these roles. It also perpetuates a culture where some of our highest decision-makers may be afraid to speak their minds and criticise government policies simply because they're worried about their future job prospects. Altogether, it means that the people appointed to make crucial decisions about our everyday lives may be doing so for their own party political interests rather than the public interest—rather than for the people who pay for them to be there to serve Australians.

It's time to restore integrity to appointments in our public sector. This bill is a good first step, but there is a way to go. While I appreciate the urgency in passing this legislation to avoid a downgrade in the commission's international rankings, I hope we can keep our sights on a broader set of reforms to end the jobs-for-mates culture. We should also be looking to make changes that ensure all board, tribunal and statutory appointments are advertised publicly and with selection criteria, as for almost every other job in the country. We should also look to ensure that there are mechanisms where these appointments can be assessed independently, with a ranked shortlist presented to responsible ministers for their consideration.

This is a good first step and I commend this bill, but I sincerely hope that it's not the last one.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

ator CHISHOLM (—Assistant Minister for Education, Assistant Minister for Regional Development and Deputy Manager of Government Business in the Senate) (): I thank the honourable senators for their contributions to this debate on the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022. This bill will restore integrity to appointments to the Australian Human Rights Commission and help to maintain the commission's international credibility as part of our broader commitment to the international rules based order.

The bill is an essential part of the government's integrity agenda and it will implement our election commitments to ensure that appointments to the commission are made through a merit based and transparent selection process. The Australian people deserve no less. In addition, this bill will address the concerns raised by the Global Alliance of National Human Rights Institutions Subcommittee on Accreditation when it deferred the commission's re-accreditation as an A-status national human rights institution.

The effective functioning of our antidiscrimination system is dependent on the proper functioning of the Australian Human Rights Commission. It is essential that the commission is able to function as an independent statutory body and that the public has confidence that the commissioners who represent their communities are appointed solely on the basis of merit. To address these concerns, the bill legislates a merit based and transparent appointments process for members of the commission by amending relevant provisions of the Australian Human Rights Commission Act 1986, the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. The bill will remove the ability to make direct appointments to the commission without a merit based and publicly advertised selection process.

Further, to address concerns raised by the subcommittee on accreditation, the bill also addresses the tenure of members of the commission. The bill amends these acts to clarify that the total term of the president and commissioners is seven years, inclusive of any reappointment. Finally, the bill will make minor amendments to ensure consistency in the qualification requirements for the president and the statutory commissioners.

I note that the Greens have circulated an amendment—and Senator Shoebridge mentioned this in his contribution—to create an LGBTIQA+ commissioner at the Australian Human Rights Commission, and this issue has been raised in debate by others. The government will not support that amendment in this debate. The critical issue that this bill will address is restoring the international standing of the commission by urgently addressing the specific issues around transparent and merit based appointments raised by the global alliance, to support the commission's reaccreditation. The amendment circulated by the Greens is unrelated to the subject matter of this bill. If the Greens sought to move a similar amendment in the House of Representatives it would be ruled out of order, and the Greens should know this.

The government recognises that it is important to consider how best the commission can operate to promote and protect the human rights of all members of the Australian community, including LGBTIQA+ people. I acknowledge the work that the commission already undertakes in relation to LGBTIQA+ rights, led by the Sex Discrimination Commissioner. By way of example, in 2021 the commission reported on the human rights of people born with variations in sex characteristics in the context of medical intervention. In addition, the commission is engaging in the WorldPride games and conference due to take place next year. There will no doubt be further discussion on the proposal for creation of an LGBTIQA+ commissioner, as well as other opportunities to strengthen the work of the commission in the future. Broader concerns regarding the structure and operation of the commission should be considered separately to this important bill.

An independent Human Rights Commission is fundamental to Australia's human rights agenda, both internationally and domestically. This government strongly supports the work of the Australian Human Rights Commission and is committed to restoring integrity to the process of commissioner appointments. The bill will support the commission's reaccreditation as an A-status National Human Rights Institution, which is necessary for its international legitimacy and credibility. Most importantly, this bill reaffirms our commitment to restoring integrity to government.

I thank all honourable senators for their contributions to this debate, and I commend this bill to the Senate.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that the bill be read a second time.

Question agreed to.

Bill read a second time.