“The Australian Human Rights Commission Act (AHRC Act) and the Anti-Discrimination Acts provide that the Governor-General appoints AHRC members. The AHRC reports that, by convention, the Governor-General usually makes appointments to the AHRC on the basis of advice from the Executive Council, which is a body established by the Australian Constitution and comprises some or all members of the Cabinet.
The SCA notes that some merit-based criteria are provided in the relevant enabling laws, and that the process for the assessment of candidates is specified in the ‘Government’s Merit and Transparency Policy’ of the Australian Public Service Commission (APSC). The APSC policy includes requirements to advertise vacancies, provide detailed selection criteria, and assess candidates by a panel that includes an APSC representative, whose role is to ensure that the process is in accordance with the policy. On the completion of the assessment process, the panel determines a pool of suitable candidates and provides a report to the APSC Commissioner for endorsement and transmission to the Attorney-General. Subsequently, the Attorney-General seeks the Prime Minister’s approval for the appointment of the candidate by the Governor-General as AHRC President or Commissioner.
The SCA notes, however, that the APSC policy provides for circumstances where the Attorney General may consider that a full selection process is not required. This includes where there is an urgent requirement to fill a position, as was the case for the Disability Discrimination Commissioner in 2019. It is also relevant in relation to the availability of an eminent person ‘where there would be little value in conducting a selection process’, as was the case for the Human Rights Commissioner in 2021. In this respect, the SCA reiterates its 2016 concern that such appointments have the potential to bring into question the legitimacy of the appointees and the independence of the NHRI. The SCA reiterates that it is critically important to ensure the formalization of a clear, transparent, and participatory selection and appointment process for an NHRI’s decision-making body, and the application of the established process in all cases.
The SCA notes that the AHRC has advocated for changes to the selection process to ensure compliance with the Paris Principles, and calls on it to continue to advocate for such changes. The SCA also notes that the Attorney-General has recently written to the AHRC advising that future appointments of Commissioners will be openly advertised. However, the SCA is not satisfied that the commitment from the Attorney-General is sufficient to indicate that full compliance with the Paris Principles standards on selection and appointment will be forthcoming, either in terms of amendments to the existing process or future appointments in practice.
The SCA encourages the AHRC to continue to advocate for a selection process in law and practice that includes explicit requirements to:
- Publicize vacancies broadly;
- Maximize 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; and
- Select members to serve in their own individual capacity rather than on behalf of the organization they represent.”