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GANHRI Sub-Committee on Accreditation Report – November 2016
NOTE
"As of 24 January 2017, SCA recommendations contained in this report are considered final."
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GANHRI Sub-Committee on Accreditation Report – November 2016
GLOBAL ALLIANCE OF NATIONAL INSTITUTIONS FOR THE PROMOTION AND
PROTECTION OF HUMAN RIGHTS
Report and Recommendations of the Session of the Sub-Committee on Accreditation
(SCA)
Geneva, 14 – 18 November 2016
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GANHRI Sub-Committee on Accreditation Report – November 2016
SUMMARY OF RECOMMENDATIONS
2. Re-Accreditation (Art. 15 of the GANHRI Statute)
2.1 Argentina: Defensor del Pueblo de la Nación (DPNA)
Decision: The SCA decides that further consideration of the re-accreditation application
of the DPNA wil be
deferred to its second session of 2017.
2.2 Australia: Australian Human Rights Commission (AHRC)
Recommendation: The SCA recommends that the AHRC be re-accredited with
A
status.
2.3 Bosnia and Herzegovina: Human Rights Ombudsmen of Bosnia and
Herzegovina (IHROBH)
Decision: The SCA decides that further consideration of the re-accreditation application
of IHROBH wil be
deferred to its second session of 2017.
2.4 Costa Rica: Defensoría de los Habitantes (DHCR)
Recommendation: the SCA recommends that the DHCR be re-accredited with
A status.
2.5 El Salvador: Procuraduría para la Defensa de los Derechos Humanos (PDDH)
Recommendation: The SCA recommends that the PDDH be re-accredited with
A
status.
2.6 India: National Human Rights Commission (NHRCI)
Decision: The SCA decides that further consideration of the re-accreditation application
of the NHRCI wil be
deferred to its second session of 2017.
2.7 Jordan: The National Centre for Human Rights (NCHR)
Recommendation: The SCA recommends that the NCHR be re-accredited with
A
status.
2.8 Malawi: Malawi Human Rights Commission (MHRC)
Recommendation: The SCA recommends that the MHRC be re-accredited with
A
status.
2.9 Mauritania: Commission Nationale des droits de l’homme (CNDH)
Decision: The SCA decides that further consideration of the re-accreditation application
of the CNDH wil be
deferred to its second session of 2017.
2.10 Mexico: Comisión Nacional de los Derechos Humanos (CNDH)
Recommendation: The SCA recommends that the CNDH be re-accredited with
A
status.
2.11 Namibia: Office of the Ombudsman (Ombudsman)
Decision: The SCA decides that further consideration of the re-accreditation application
of the Ombudsman wil be
deferred to its second session of 2017.
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GANHRI Sub-Committee on Accreditation Report – November 2016
2.12 Nicaragua: Procuradoría para la Defensa de los Derechos Humanos (PDDH)
Recommendation: The SCA decides that further consideration of the re-accreditation
application of the PDDH wil be
deferred to its second session of 2017.
2.13 Nigeria: National Human Rights Commission (NHRC)
Recommendation: The SCA recommends that the NHRC be re-accredited with
A
status.
2.14 Tanzania: Commission for Human Rights and Good Governance of
(CHRAGG)
Decision: The SCA decides that further consideration of the re-accreditation application
of the CHRAGG wil be
deferred to its second session of 2017.
2.15 Zambia: Human Rights Commission (HRCZ)
Decision: The SCA decides that further consideration of the re-accreditation application
of the HRCZ wil be
deferred to its second session of 2017.
3. Review (Art. 16.2 of the GANHRI Statute)
3.1 Burundi: Commission nationale indépendante des droits de l’homme (CNIDH)
Recommendation: The SCA recommends that the CNIDH be downgraded to
B status.
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GANHRI Sub-Committee on Accreditation Report – November 2016
Report, Recommendations, and Decisions of the Session of the SCA, 14 – 18
November 2016
1. BACKGROUND
1.1.
In accordance with the Statute (Annex I) of the Global Al iance of National
Institutions for the Promotion and Protection of Human Rights (GANHRI), the
SCA considers and reviews applications for accreditation, reaccreditation and
special or other reviews received by the National Institutions, Regional
Mechanisms and Civil Society Section (NRCS) of the Office of the United
Nations High Commissioner for Human Rights (OHCHR) in its capacity as the
GANHRI Secretariat, and to make recommendations to the GANHRI Bureau
members with regard to the compliance of applicant institutions with the Paris
Principles (Annex II). The SCA assesses compliance with the Paris Principles in
law and in practice.
1.2.
In accordance with the SCA Rules of Procedure, the SCA is composed of NHRI
representatives from each region: Canada for the Americas (Chair), Mauritania
for Africa, Jordan for Asia-Pacific and France for Europe. During the
consideration of the re-accreditation applications of Mauritania and Jordan, the
relevant regions were represented by NHRI representatives from Morocco and
Qatar, respectively.
1.3.
The SCA convened from 14 to 18 November 2016. OHCHR participated as a
permanent observer and in its capacity as GANHRI Secretariat. In accordance
with established procedures, the Geneva-based office of GANHRI and regional
coordinating committees of NHRIs were invited to attend as observers. The SCA
welcomed the participation of the GANHRI Geneva Representative and
representatives from the Secretariat of the APF, ENNHRI and NANHRI.
1.4.
Pursuant to article 15 of the Statute, the SCA also considered applications for
re-accreditation from the NHRIs of Argentina, Australia, Bosnia and
Herzegovina, Costa Rica, El Salvador, India, Jordan, Malawi, Mauritania,
Mexico, Namibia, Nicaragua, Nigeria, Tanzania and Zambia.
1.5.
Pursuant to article 16.2 of the Statute, the SCA conducted a special review of
the NHRI of Burundi.
1.6.
In accordance with the Paris Principles and the GANHRI SCA Rules of
Procedure, the classifications for accreditation used by the SCA are:
A: Compliance with the Paris Principles;
B: Not fully in compliance with the Paris Principles or insufficient information
provided to make a determination;
1.7.
The General Observations (Annex I I), as interpretative tools of the Paris
Principles, may be used to:
a) Instruct institutions when they are developing their own processes and
mechanisms, to ensure Paris Principles compliance;
b) Persuade domestic governments to address or remedy issues relating to an
institution’s compliance with the standards articulated in the General
Observations;
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GANHRI Sub-Committee on Accreditation Report – November 2016
c) Guide the SCA in its determination of new accreditation applications, re-
accreditation applications or other review:
i) If an institution falls substantially short of the standards articulated in the
General Observations, it wil be open for the SCA to find that it was not
Paris Principle compliant.
ii) If the SCA has noted concern about an institution’s compliance with any of
the General Observations, it may consider what steps, if any, have been
taken by an institution to address those concerns in future applications. If
the SCA is not provided with proof of efforts to address the General
Observations previously made, or offered no reasonable explanation why
no efforts had been made, it would be open to the SCA to interpret such
lack of progress as non-compliance with the Paris Principles.
1.8.
The SCA notes that when specific issues are raised in its report in relation to
accreditation, re-accreditation, or special reviews, NHRIs are required to
address these issues in any subsequent application or other review.
1.9.
Pursuant to Article 12 of the Statute, where the SCA comes to an accreditation
recommendation, it shal forward that recommendation to the GANHRI Bureau
whose final decision is subject to the following process:
i) The recommendation of the SCA shal first be forwarded to the applicant;
ii) An applicant can chal enge a recommendation by submit ing a written
chal enge to the GANHRI Chairperson, through the GANHRI Secretariat,
within twenty eight (28) days of receipt.
iii) Thereafter the recommendation wil be forwarded to the members of the
GANHRI Bureau for decision. If a chal enge has been received from the
applicant, the chal enge together with all relevant material received in
connection with both the application and the chal enge wil also be
forwarded to the members of the GANHRI Bureau;
iv) Any member of the GANHRI Bureau who disagrees with the
recommendation shal , within twenty (20) days of its receipt, notify the
Chair of the SCA and the GANHRI Secretariat. The GANHRI Secretariat
wil promptly notify all GANHRI Bureau members of the objection raised
and wil provide all necessary information to clarify that objection. If within
twenty (20) days of receipt of this information at least four members of the
GANHRI Bureau coming from not less than two regional groups notify the
GANHRI Secretariat that they hold a similar objection, the recommendation
shal be referred to the next GANHRI Bureau meeting for decision;
v) If at least four members coming from two or more regional groups do not
raise objection to the recommendation within twenty (20) days of its
receipt, the recommendation shal be deemed to be approved by the
GANHRI Bureau;
vi) The decision of the GANHRI Bureau on accreditation is final.
1.10. At each session the SCA conducts a teleconference with every NHRI. It may
also consult with and seek further information from NHRIs where necessary. In
addition, OHCHR desk officers and, as appropriate, OHCHR field officers were
available to provide further information, as needed.
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GANHRI Sub-Committee on Accreditation Report – November 2016
1.11. Pursuant to Article 18.1 of the statute, any decision that would serve to remove
accredited A status from an applicant can only be taken after the applicant is
informed of this intention and is given the opportunity to provide in writing, within
one (1) year of receipt of such notice, the written evidence deemed necessary to
establish its continued conformity to the Paris Principles.
1.12. At any time, the SCA may receive information that raises concern that the
circumstances of a NHRI have changed in a way that affects its compliance with
the Paris Principles, and the SCA may then initiate a special review of that
NHRI’s accreditation status. When considering whether or not to initiate a
special review, the SCA has adopted a new procedure whereby, in addition to
written submissions made by the NHRI, civil society and any other stakeholder,
the NHRI is af orded the opportunity to make an oral statement to the SCA
during the session.
1.13. Pursuant to Article 16(3), any review of the accreditation classification of a NHRI
must be finalized within 18 months.
1.14. The SCA acknowledges the high degree of support and professionalism of the
GANHRI Secretariat (OHCHR-NRCS).
1.15. The SCA shared the summaries prepared by the Secretariat with the concerned
NHRIs before the consideration of their applications and gave one week to
provide any comments on them. The summaries are only prepared in English,
due to financial constraints. Once the recommendations of the SCA are adopted
by the GANHRI Bureau, the report of the SCA is placed on the GANHRI website
(http://nhri.ohchr.org/).
1.16. The SCA considered information received from civil society. The SCA shared
that information with the concerned NHRIs and considered their responses.
1.17. Notes: The GANHRI statute, the Paris Principles and the General Observations
referred to above can be downloaded in Arabic, English, French and Spanish
from the following links:
1. The GANHRI Statute:
http:/ nhri.ohchr.org/EN/AboutUs/Governance/Pages/Statute.aspx
2. The Paris Principles and General Observations:
http:/ nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Pages/default.aspx
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GANHRI Sub-Committee on Accreditation Report – November 2016
2.
SPECIFIC RECOMMENDATIONS - RE-ACCREDITATION APPLICATIONS (Art. 15
of the GANHRI Statute)
2.1 Argentina: Defensoria del Pueblo de la Nación Argentina (DPNA)
Decision: The SCA decides that further consideration of the re-accreditation application of
the DPNA wil be
deferred to its second session of 2017.
The SCA notes with concern:
1. Selection and appointment
The position of Ombudsperson has been vacant since 2009. Despite the requirement of
Article 13 of the enabling Law that one of the Deputy Ombudspersons be officiated as acting
Ombudsperson, the SCA notes that the DPNA is currently headed by the General
Undersecretary who was appointed by the National Congress.
The delay in the appointment of the Ombudsperson and Deputy Ombudspersons could
restrict DPNA’s ability to speak out on significant and controversial human rights concerns.
The SCA acknowledges the recent establishment of the Permanent Bicameral Commission,
which is expected to lead to the appointment of an Ombudsperson and two Deputy
Ombudspersons.
The SCA encourages a prompt resolution of the process of appointing the Ombudsperson
and Deputy Ombudspersons of the DPNA.
The SCA further notes that the process for selection and appointment currently enshrined in
the enabling Law is not sufficiently broad and transparent. In particular, it does not:
- require the advertisement of vacancies;
- establish clear and uniform criteria upon which all parties assess the merit of eligible
applicants; and
- promote broad consultation and / or participation in the application, screening,
selection and appointment process.
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 in relevant
legislation, regulations or binding administrative guidelines, as appropriate. A 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.
The SCA encourages the DPNA to advocate for the formalization and application of a
process that includes requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups
and educational qualifications;
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 individual capacity rather than on behalf of the
organization they represent.
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The SCA refers to Paris Principle B.1 and to General Observation 2.2 on ‘Selection and
appointment of the governing body’.
2. Human rights mandate
The DPNA’s enabling Law provides for a limited promotion mandate. The SCA notes,
however, that in practice the DPNA undertakes promotional activities.
The SCA is of the view that an NHRI should be legislatively mandated with specific functions
to both promote and protect human rights. It understands ‘promotion’ to include those
functions which seek to create a society where human rights are more broadly understood
and respected. Such functions may include education, training, advising, public outreach and
advocacy.
The SCA notes that draft amendments to the enabling Law have been laid before
Parliament, and encourages the DPNA to continue to advocate for appropriate amendments
to its enabling Law to make its promotional mandate explicit. Until such time as the
amendments are passed, the SCA encourages the DPNA to continue interpreting its
mandate broadly.
The SCA refers to Paris Principle A.1, A.2 and A.3 and to its General Observation 1.2 on
‘Human Rights Mandate’.
3. Adequate funding
The SCA notes that the DPNA has experienced a reduction in funding and an increase in
functions.
The SCA emphasizes that, to function effectively, an NHRI must be provided with an
appropriate level of funding in order to guarantee its independence and its ability to freely
determine its priorities and activities.
In particular, adequate funding should, to a reasonable degree, ensure the gradual and
progressive realization of the improvement of the institution’s operations and the fulfilment of
its mandate. Provision of adequate funding by the State should, at a minimum, include the
following:
a) the allocation of funds for premises that is accessible to the wider community,
including for persons with disabilities. In certain circumstances, in order to promote
independence and accessibility, this may require that offices are not co-located with
other government agencies. Where possible, accessibility should be further
enhanced by establishing a permanent regional presence;
b) salaries and benefits awarded to its staff comparable to those of civil servants
performing similar tasks in other independent institutions of the State;
c) remuneration of members of its decision-making body (where appropriate);
d) the establishment of well-functioning communications systems including telephone
and internet; and
e) the allocation of a sufficient amount of resources for mandated activities. Where the
NHRI has been designated with additional responsibilities by the State, additional
financial resources should be provided to enable it to assume the responsibilities of
discharging these functions.
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Such funding should be regularly released and in a manner that does not impact adversely
on its functions, day-to-day management and retention of staff.
The SCA encourages the DPNA to continue to advocate for adequate funding to fulfil its
mandate effectively.
The SCA refers to Paris Principle B.2 and to its General Observation 1.10 on ‘Adequate
funding’.
The SCA further notes:
4. Cooperation with civil society
The SCA highlights that regular and constructive engagement with all relevant stakeholders
is essential for NHRIs to fulfil their mandates effectively. In this regard it acknowledges the
DPNA’s engagement and cooperation with civil society organizations.
The SCA encourages the DPNA to develop, formalise and maintain working relationships, as
appropriate, with other domestic institutions established for the promotion and protection of
human rights, including civil society organizations.
The SCA refers to Paris Principles C (g) and to its General Observation 1.5 on ‘Cooperation
with other human rights bodies’.
2.2 Australia: Australian Human Rights Commission (AHRC)
Recommendation: The SCA recommends that the AHRC be re-accredited with
A status.
The SCA notes with concern:
1. Selection and appointment
The Australian Human Rights Commission Act and a number of Anti-Discrimination Acts
provide that the Governor-General appoints members of the Commission on the
recommendation of the Attorney General.
The SCA notes that some merit criteria are provided in the relevant enabling laws, and that
the process for the assessment of candidates is specified in the ‘’Merit and Transparency
Guidelines” of the Australian Public Service Commission (APSC). The Guidelines include
requirements to: advertise vacancies; provide detailed selection criteria; and assess
candidates by a panel that includes the independent representative of the APSC whose role
is to ensure the process is in accordance with the Guidelines. On the completion of the
assessment process, the panel determines a pool of suitable candidates and provides a
report to the Commissioner of the APSC for endorsement and transmission to the Attorney
General. The At orney-General then writes to the Prime Minister seeking approval for the
candidate to be appointed as an AHRC Commissioner by the Governor-General.
However, the SCA notes that: if the At orney-General is not satisfied with the proposed
candidates, he or she may unilaterally propose an alternate appointee; and that, in one
instance in 2013, the Attorney-General proposed the appointment of a Commissioner
without following the merit-based selection process outlined above. Such appointment has
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the potential to bring into question the legitimacy of the appointees and the independence of
the NHRI. The SCA is of the view 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 AHRC has proposed amendments to formalize the above selection
process in its enabling law, and that it continues to advocate for such amendments. The
SCA encourages the AHRC to continue to advocate for a selection process that specifies
explicit requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups
and educational qualifications;
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 individual capacity rather than on behalf of the
organization they represent.
The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and
appointment of the decision-making body of NHRIs’.
2. Dismissal process
In accordance with section 41 of the AHRC Act, section 102 of the Sex Discrimination Act,
section 119 of the Disability Discrimination Act, section 34 of the Racial Discrimination Act
and section 53 G of the Age Discrimination Act, the Governor-General may remove the
Commissioner on the advice of the Executive Council, for the following reasons: (i) physical
or mental incapacity; (i ) misbehaviour; (i i) absence from duty; and (iv) bankruptcy under
their respective applicable above cited laws. The precise process for dismissal is not further
described in the Act.
The SCA is of the view that, in order to address the requirement for a stable mandate, which
is important in reinforcing independence, the enabling law of an NHRI must contain an
independent and objective dismissal process similar to that accorded to members of other
independent State agencies. This process should apply uniformly to all nominating entities.
The grounds for dismissal must be clearly defined and appropriately confined to those
actions that impact adversely on the capacity of the member to fulfil his or her mandate.
Where appropriate, the legislation should specify that the application of a particular ground
must be supported by the decision of an appropriate body with independent jurisdiction. The
dismissal must be made in strict conformity with all the substantive and procedural
requirements as prescribed by law. It should not be allowed based solely on the discretion of
the appointing authorities.
These requirements ensure the security of tenure of the members of the governing body and
are essential to ensure the independence of, and public confidence in, the senior leadership
of an NHRI. The SCA accordingly urges the AHRC to advocate for an independent and
objective dismissal process regarding the grounds already recognised in the AHRC Act.
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The SCA refers to Paris Principle B.3 and to its General Observation 2.1 on ‘Guarantee of
tenure for members of the NHRI decision-making body’.
3. Adequate funding and financial autonomy
The SCA expresses concern about cuts to the AHRC budget since 2014-15.
The SCA again notes, with concern, the impact of the application of annual efficiency
dividends which erode the AHRCs base level of funding and therefore its capacity to fulfil its
legislative mandate. The SCA is also concerned about the conferral of work and the
appointment of additional commissioners without an additional budget allocation.
The SCA reiterates 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. Further the NHRI ought to be provided with adequate funding for its
operations and ensures that the Commission retains adequate discretionary funding to
independently set its own program of work. In particular, adequate funding should, to a
reasonable degree, ensure the gradual and progressive realization of improvement in the
NHRI’s operations and the fulfilment of its mandate.
Provision of adequate funding by the State should, at a minimum, include the following:
a) The allocation of funds for premises which are accessible to the wide community,
including for persons, including for persons with disabilities. In certain circumstances,
in order to promote independence and accessibility, this may require that offices are
not co-located with government agencies. Where possible, accessibility should be
further enhanced by establishing a permanent regional presence;
b) Salaries and benefits awarded to staf comparable to those of civil servants
performing similar tasks in other independent institutions of the State;
c) Remuneration of members of the decision-making body (where appropriate);
d) The establishment of a wel -functioning communications system including telephone
and internet; and
e) The allocation of a sufficient amount of resources for mandated activities. Where the
NHRI has been designated with additional responsibilities by the State, additional
financial resources should be provided to enable it to assume the responsibilities of
discharging these functions.
The SCA encourages the AHRC to continue to advocate for an appropriate level of funding
to carry out its mandate including, where appropriate, the establishment of regional offices.
The SCA refers to Paris Principle B.2 and to its General Observations 1.10 on ‘Adequate
funding’ and 2.8 on ‘Administrative regulation’.
The SCA further notes:
4. Limitation on mandate
The current definition of human rights in the Act does not explicitly refer to either the
Convention against Torture or the International Covenant on Economic, Social and Cultural
rights.
The SCA acknowledges that the AHRC interprets its mandate to encompass all human
rights.
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The Paris Principles require that an NHRI must be legislatively mandated for both the
promotion and protection of all human rights.
The SCA urges the AHRC to continue advocating for amendment of the definition of ‘human
rights’ within the AHRC Act to include the seven core human rights treaties ratified by
Australia (matching the definition used by the Parliamentary Joint Commit ee on Human
Rights).
The SCA refers to Paris Principles A.1, A.2 and A.3 and to its General Observation 1.2 and
2.7 on ‘Human rights mandate.’
5. Tenure
The SCA notes the provisions of sections 37 of the AHRC Act, 97 of the Sex Discrimination
Act, 114 of the Disability Discrimination Act, 30 of the Racial Discrimination Act and 53 B of
the Age Discrimination Act, which each provide that members can be appointed for a term
not exceeding seven years and that they are eligible for re-appointment, with no limit on the
number of times re-appointment can occur.
As a proven practice, the SCA encourages that a term of between three (3) and seven (7)
years with the option to renew once be provided for in an NHRI’s enabling law.
The SCA refers to Paris Principle B.3 and to its General Observation 2.1 ‘Guarantee of
tenure for members of the National Human Rights Institution decision-making body’.
2.3 Bosnia and Herzegovina: Human Rights Ombudsmen of Bosnia and Herzegovina
(IHROBH)
Decision: The SCA decides that further consideration of the re-accreditation application of
IHROBH wil be deferred to its second session of 2017.
The SCA commends the efforts of the IHROBH in advocating for a stronger legislative
framework, and it encourages the IHROBH to continue these ef orts. The SCA notes that the
IHROBH intends to propose legislative amendments.
The SCA commends the work undertaken by IHROBH to address the SCA’s
recommendations of 2010.
The SCA notes with concern:
1. Human rights mandate
The enabling law of IHROBH provides for a limited promotion mandate.
The SCA understands ‘promotion’ to include those functions which seek to create a society
where human rights are more broadly understood and respected. Such functions may
include education, training, advising, public outreach and advocacy; as wel as encouraging
ratification and implementation of international standards and engagement with the
international human rights system.
While the SCA acknowledges that IHROBH interprets its mandate broadly and undertakes
promotion of human rights activities, including in relation to international human rights
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mechanisms, it encourages IHROBH to advocate for legislative changes to explicitly include
specific functions to both promote and protect human rights.
The SCA refers to Paris Principle A.3 and to its General Observations 1.2 on ‘Human rights
mandate’ and 1.3 on ’Encouraging ratification or accession to international human rights
instruments’,
2. Selection and appointment
In accordance with the law the Ombudsmen are appointed by the parliamentary assembly.
The SCA is of the view that the selection process currently enshrined in the existing Law is
not sufficiently broad and transparent, in that it does not specify the process for achieving
broad consultation and/or participation in the application, screening, selection and
appointment process.
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 in relevant
legislation, regulations or binding administrative guidelines, as appropriate. A 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.
The SCA encourages the IHROBH to continue to advocate for the formalization and
application of a process that includes requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups and
educational qualifications;
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 individual capacity rather than on behalf of the
organization they represent.
The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and
appointment of the decision-making body of NHRIs’.
3. Dismissal
In accordance with article 12 of the Law, the Ombudspersons can be dismissed on account
of inability to carry out their functions. The SCA is of the view that this provision should be
made explicit in the Law to avoid misinterpretation.
Further, the Ombudspersons are dismissed by the Parliamentary Assembly. The Law does
not provide further details on the dismissal process.
The SCA emphasizes that, in order to address the requirement for a stable mandate, which
is important in reinforcing independence, the enabling law of an NHRI must contain an
independent and objective dismissal process similar to that accorded to members of other
independent State agencies.
The grounds for dismissal must be clearly defined and appropriately confined to those
actions that impact adversely on the capacity of the member to fulfil his or her mandate.
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Where appropriate, the legislation should specify that the application of a particular ground
must be supported by the decision of an appropriate body with independent jurisdiction. The
dismissal must be made in strict conformity with all the substantive and procedural
requirements as prescribed by law. It should not be allowed based solely on the discretion of
the appointing authorities.
The SCA is of the view that such requirements ensure the security of tenure of the members
of the governing body and are essential to ensure the independence of, and public
confidence in, the senior leadership of an NHRI.
The SCA refers to Paris Principle B.3 and to its General Observation 2.1 on ‘Guarantee of
tenure for members of the NHRI decision-making body’.
4. Adequate funding and financial autonomy
The IHROBH reports that it has experienced significant budget cuts. It further reports that, of
the 89 positions envisioned for the organization, only 56 are currently staffed, and that it is
unable to plan for the hiring of additional staff due to its budgetary situation.
Further, in accordance with article 39 of the existing Law, the financial appropriation
necessary for the functioning of the IHROBH is included in the budget of the Presidency of
Bosnia and Herzegovina. The existing Law does not specify the process by which this
budget allocation is made, does not specify whether it appears as a separate budget line,
and does not provide for the financial autonomy of the IHROBH over the budget allocation.
The SCA also notes that the IHROBH has indicated that its most recent audit report called
for greater financial independence for the IHROBH.
The SCA emphasizes that, to function effectively, an NHRI must be provided with an
appropriate level of funding in order to guarantee its independence and its ability to freely
determine its priorities and activities. In particular, adequate funding should, to a reasonable
degree, ensure the gradual and progressive realization of improvement in the NHRI’s
operations and the fulfilment of its mandate.
Provision of adequate funding by the State should, at a minimum, include the following:
a) The allocation of funds for premises which are accessible to the wide community,
including for persons, including for persons with disabilities. In certain circumstances,
in order to promote independence and accessibility, this may require that offices are
not co-located with government agencies. Where possible, accessibility should be
further enhanced by establishing a permanent regional presence;
b) Salaries and benefits awarded to staf comparable to those of civil servants
performing similar tasks in other independent institutions of the State;
c) Remuneration of members of the decision-making body (where appropriate);
d) The establishment of a wel -functioning communications system including telephone
and internet; and
e) The allocation of a sufficient amount of resources for mandated activities. Where the
NHRI has been designated with additional responsibilities by the State, additional
financial resources should be provided to enable it to assume the responsibilities of
discharging these functions.
Funds should be allocated to a separate budget line item applicable only to the NHRI. The
NHRI should have complete autonomy over the allocation of its budget. Such funding should
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16
GANHRI Sub-Committee on Accreditation Report – November 2016
be regularly released and in a manner that does not impact adversely on its functions, day-
to-day management and retention of staff.
Although, IHROBH stated that other institutions in Bosnia and Herzegovina are facing similar
budgetary chal enges, the SCA encourages IHROBH to continue advocating for an
appropriate level of funding to carry out its mandate, including for its upcoming NPM
function, as well as necessary amendments to its enabling Law to ensure financial
autonomy.
The SCA refers to Paris Principle B.2 and to its General Observation 1.10 on ‘Adequate
funding of NHRIs’.
The SCA further notes:
5. Immunity
Article 16 of the existing Law provides that the Ombudsperson shal not be prosecuted,
subjected to investigation, arrested, detained or tried for the opinions expressed or for the
decisions taken in the exercise of powers associated with his or her duties. The existing Law
does not, however, appear to protect the Ombudsperson from civil liability.
External parties may seek to influence the independence of an NHRI by initiating, or by
threatening to initiate, legal proceedings against a members. For this reason, NHRI
legislation should include provisions to protect members from legal liability for acts
undertaken in good faith in their official capacity. Such a provision promotes:
- security of tenure;
- the NHRI’s ability to engage in critical analysis and commentary on human rights issues
free from interference;
- the independence of senior leadership; and
- public confidence in the NHRI.
The SCA encourages the IHROBH to continue to advocate for amendments to its enabling
Law.
The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Guarantee of
functional immunity.’
6. Annual report
In accordance with article 34 of the Law, the annual report of IHROBH is distributed to a
number of entities. However, there is no requirement in the enabling Law that the annual
report is considered by or discussed in the relevant Parliaments.
The SCA is of the view that it is preferable for the enabling law of an NHRI provide that the
legislature discuss and consider the reports of the NHRI, so as to ensure that its
recommendations are properly considered, and to promote action on them.
The SCA recommends that the IHROBH advocate for the inclusion in its enabling law of a
process whereby its reports are discussed and considered by the legislature.
The SCA refers to Paris Principle A.3 and to its General Observation 1.11 on ‘Annual reports
of NHRIs’.
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17
GANHRI Sub-Committee on Accreditation Report – November 2016
7. Cooperation with civil society
The SCA highlights that regular and constructive engagement with all relevant stakeholders
is essential for NHRIs to fulfil their mandates effectively. In this regard it acknowledges the
IHROBH engagement and cooperation with civil society organizations.
The SCA encourages the IHROBH to develop, formalise and maintain working relationships,
as appropriate, with other domestic institutions established for the promotion and protection
of human rights, including civil society organizations.
The SCA refers to Paris Principles C (g) and to its General Observation 1.5 on ‘Cooperation
with other human rights bodies’.
8. Interaction with the international human rights system
While the IHROBH notes that it interacts with the regional and international human rights
system, the Law does not explicitly provide for this function.
The Paris Principles recognize that monitoring and engaging with the international human
rights system, in particular the Human Rights Council and its mechanisms (Special
Procedures and Universal Periodic Review) and the United Nations Human Rights Treaty
Bodies, can be an effective tool for NHRIs in the promotion and protection of human rights
domestical y.
The SCA encourages IHROBH to advocate for changes in its enabling law to explicitly allow
the institution to interact with the regional and international human rights system. It highlights
that effective engagement with the international human rights system may include:
- submit ing parallel or shadow reports to the Universal Periodic review, Special
Procedures mechanisms and Treaty Bodies;
- making statements during debates before review bodies and the Human Rights
Council;
- assisting, facilitating and participating in country visits by United Nations experts,
including special procedures mandate holders, treaty bodies, fact finding
missions and commissions of inquiry; and
- monitoring and promoting the implementation of relevant recommendations
originating from the human rights system.
In considering their engagement with the international human rights system, NHRIs are
encouraged to actively engage with the OHCHR, the GANHRI, its Regional NHRI
Coordinating Commit ees, and other NHRIs, as wel as international and national NGOs and
civil society organization.
The SCA refers to Paris Principle A.3 and to its General Observation 1.4 on ‘Interaction with
the International Human Rights System’.
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20
• There is no oversight or approval required from the government for the manner in
which the Commission undertakes its work. For example, when the Commission
exercises its functions under section 11 to make an examination or hold an inquiry,
section 14 of the Act states that it should do so
in such manner as it thinks fit.
• Section 10 of the AHRC Act sets out duties of the Commission, for example to
perform its functions with regard to the indivisibility and universality of rights. It also
states that the duties of the Commission are
not enforceable in proceedings of a
court (AHRC Act s 10(2)), which provides a further guarantee of independence in
decision making by the Commission in relation to which issues it will exercise its
functions.
• Sections 11(1)(e), (j), (k) and (m) of the AHRC Act enable the Attorney-General for
Australia to request the Commission to exercise various functions – such as to
examine enactments for compliance with human rights or to report on actions that
the government should take to better implement human rights. There is, however,
no capacity for the Attorney-General to direct or approve the findings that the
Commission reaches. It is rare for the Attorney-General to request the Commission
to perform certain of its functions. Usual practice is that any terms of reference are
negotiated with the Commission, as well as also providing necessary funding to
undertake any commissioned review or inquiry. Most recently in 2021, the Australian
Government requested that the Commission undertake an Independent Review into
Commonwealth Parliamentary Workplaces.3 The conduct of the review is independent
of government and fully resourced.
The Commission operates under the PGPA Act. This requires the Commission to have a
range of financial and non-financial reporting mechanisms in place. This includes preparing
an annual Corporate Plan which sets out the work priorities and strategic focus determined
by the Commission, and reporting on financial and non-financial performance in an Annual
Report and annual performance statement. The PGPA Act requires that the Commission
lodge such documents with the portfolio minister (Attorney-General) and Minister for
Finance. Such lodgement is not for approval but simply to ensure compliance.
The Commission is also accountable to the Federal Parliament of Australia. The Commission
formally transmits its reports to the responsible Minister who is then required by law to
table these in Parliament within 15 sitting days of being transmitted. There is no discretion
for the Minister not to table the reports, or to alter the reports in any way. The Commission
must provide the Annual Report to the Attorney-General,4 which is tabled in Parliament.5
The Commission’s most recent Annual Report is for the financial year 2019-2020.6 This is
attached as Supporting Document ’11. Annual Report 2019-2020’. The Commission’s 2020-
2021 Annual Report is due to be released publicly at the end of October 2021 and will then
be available online.7
The Commission is also accountable for its expenditure through the Consideration of Budget
Estimates by the Senate Legislation Committee on Legal and Constitutional Affairs. The
3 Australian Human Rights Commission,
Independent Review into Commonwealth Parliamentary
Workplaces <https://humanrights.gov.au/CPWReview>.
4 AHRC Act s 45;
Public Service Act 1999 (Cth)
<https://www.legislation.gov.au/Details/C2019C00057> s 70.
5 AHRC Act s 46.
6 Australian Human Rights Commission,
Annual Report 2019-2020 (2020)
<https://humanrights.gov.au/our-work/commission-general/publications/annual-report-2019-2020>.
7 Australian Human Rights Commission,
Annual Reports Index <https://humanrights.gov.au/our-
work/commission-general/publications/annual-reports-index>.
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25
A summary of the APSC guidelines as they apply to the members of the Commission is as
follows:
• The Attorney-General will advise incumbents, in writing, at least four months before
the expiry of their appointment whether it is intended to reappoint them, not
reappoint them, or to advertise the position to test the field.
• A merit-based and transparent process will apply for filling vacancies, with the
following features:
o oversight of the advertising process and assessment of applicants’ claims are
to be undertaken by the Secretary of the Attorney-General’s Department and
the Australian Public Service Commissioner (or their representatives)
o vacancies will be advertised at a minimum on the APSjobs website and in the
national press
o an assessment panel will consider the claims of applicants against the
selection criteria
o the assessment panel will consist of the Secretary and a representative of the
Public Service Commissioner and other panel members, if the Secretary
decides, having regard to the legislative provisions, for example to maintain
gender balance and provide specialist expertise
o selections will be made against a core set of selection criteria, supplemented
by additional criteria agreed to by the Minister and Secretary
o a report endorsed by the Public Service Commissioner, will be provided by the
Secretary to the Minister recommending shortlisted candidates.
• All appointments are to be made for a period of five years unless individual
appointees advise in writing that they are seeking a shorter period, or the relevant
legislation stipulates a different period, or other special circumstances arise justifying
a shorter term.
• All costs associated with filling the vacancy, such as advertising, will be borne by the
Commission.18
The Australian Public Service Commissioner plays an important role in ensuring that the
assessment of candidates is based on merit. A representative of the Australian Public
Service Commissioner is involved in the short listing of applicants, participates in the
assessment panel or nominates a representative to participate in his or her place, and
endorses the Secretary’s selection report prior to the Secretary reporting to the Attorney-
General. The Attorney-General is responsible for making the final recommendation of
appointment to the Prime Minister and Cabinet. The Attorney-General must then seek the
Governor-General’s approval as required by the AHRC Act.
Where the Attorney-General decides not to appoint a candidate recommended by the
assessment panel, the Attorney-General must write to the Prime Minister outlining the
reasons for this decision.
The following appointments were made to the Commission between the last accreditation
period, July 2015, and 1 July 2021:
• Sex Discrimination Commissioner – term commenced 18 April 2016 and renewed for
2 years on 1 April 2021
• Age Discrimination Commissioner – term commenced 29 July 2016 and renewed for
2 years on 1 April 2021
18 Australian Public Service Commission,
Government’s Merit and Transparency Policy (11 December
2020) <https://www.apsc.gov.au/working-aps/governments-merit-and-transparency-policy>.
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• Human Rights Commissioner – term commenced 1 August 2016
• Disability Discrimination Commissioner – term commenced 1 August 2016
• Aboriginal and Torres Strait Islander Social Justice Commissioner – term commenced
3 April 2017
• President – term commenced 30 July 2017
• Race Discrimination Commissioner – term commenced 8 October 2018
• Disability Discrimination Commissioner – term commenced 7 May 2019
• National Children’s Commissioner – term commenced 2 November 2020
• Human Rights Commissioner – term commences 22 November 2021.
The Commission website summarises the work experience of each commissioner and
demonstrates the expertise that they bring to their roles.19
Appointment processes for most commissioner positions and the role of President have been
filled following extensive national advertising and merit-based selection processes, in
accordance with the above mentioned APSC guidelines.
For example, the Age Discrimination Commissioner, Disability Discrimination Commissioner
and Human Rights Commissioner were all appointed in 2016 following a nationally
advertised recruitment process.
Vacancies for the three positions were advertised electronically and in the national media. A
five-person selection panel was formed to assess candidates. Of the 157 people who applied
for the positions, the selection panel formed a shortlist of 23 persons who were all
considered of high quality. These applicants went through a range of interview processes
before the panel made recommendations for each position to the Attorney-General.
The Sex Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Race Discrimination Commissioner and President were all appointed through
merit-based selection processes between 2016 and 2018.
In 2019, the then incumbent Disability Discrimination Commissioner was appointed to a
new statutory role on the Royal Commission on violence, abuse and neglect of people with
disabilities. This followed a selection process for Royal Commissioners, utilising the APSC
Guidelines. The Government announced the appointment of a new Disability Discrimination
Commissioner at the same time, which enabled the AHRC to have an incumbent Disability
Discrimination Commissioner, with the necessary qualifications and skills and lived
experience of disability, in time for Australia’s appearance before the UN Committee on the
Rights of Persons with Disabilities. The APSC guidelines include an exemption from a full
selection process where there is an urgent requirement to fill a position.20
In 2020, the National Children’s Commissioner position was publicly advertised nationally,
and an appointment made following a merit-based selection process in accordance with the
APSC guidelines.
In 2021, a new Human Rights Commissioner was appointed without such a process. The
legislation does not set out any specific qualifications required for a Human Rights
Commissioner. The chosen person was selected from academia and has educational
qualifications and a research background on human rights issues.
19 Australian Human Rights Commission,
Commissioners (2021)
<https://humanrights.gov.au/about/commissioners>.
20 Australian Public Service Commission,
Government’s Merit and Transparency Policy (11 December
2020) [2.6.6].
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27
The APSC guidelines provide that there may be circumstances where the Attorney-General
may consider a full selection process is inappropriate, including where there is an urgent
requirement to fill a position, as in the case of the Disability Discrimination Commissioner
above, or the availability of an eminent person ‘where there would be little value in
conducting a selection process’.21 In these circumstances, the Attorney-General must
request the Prime Minister’s approval to fill a position without a full selection process. The
Commission has been advised that the government complied with the APSC guidelines for
this process.
In preparing this document, the Commission requested information from the Attorney-
General's Department describing the selection processes undertaken for each commissioner
appointment since 2016. The information provided by the Government is provided as
Supporting Document ’12. Attorney-General’s Department List of Appointments 2016-2021’.
The Commission has regularly advocated for all appointment processes to be publicly
advertised and merit based. This advocacy has taken the form of:
• letters from the President to the Attorney-General and Minister for Foreign Affairs
• briefings of the Attorney-General and the Attorney’s office
• briefings of the Attorney-General's Department and the Department of Foreign
Affairs
• statements in parliamentary processes such as public hearings of the Senate
Estimates Committee.
The Commission has also made recommendations to the Government in publicly released
discussion papers and reports to strengthen the governing legislation in accordance with the
Paris Principles.22 For example, in 2019 the Commission released a discussion paper that
proposed reforms to the AHRC Act including:
• Specify that all commissioner appointments can only be made following a clear,
transparent, merit-based and participatory selection and appointment process.
• Including a reference to the Paris Principles in the objects clause of the legislation
acknowledging that the AHRC is intended to be a Paris Principles compliant national
human rights institution.
• Including a definition of human rights in the AHRC Act that references all of
Australia’s international human rights obligations.23
The final report of the Commission on discrimination law reform, the Discrimination Law
Reform Position Paper, to be released in October 2021, will similarly contain these
recommendations.
The Commission is currently engaged with discussions with the Government about clarifying
the selection process for Commissioners to ensure consistency with the Paris Principles. The
21 Australian Public Service Commission,
Government’s Merit and Transparency Policy (11 December
2020) [2.6.6].
22 Australian Human Rights Commission,
Discussion paper: Priorities for federal discrimination law
reform (2019) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/discussion-
paper-priorities-federal-discrimination-law>; Australian Human Rights Commission,
Free and Equal <https://humanrights.gov.au/free-and-equal>.
23 Australian Human Rights Commission,
Discussion paper: Priorities for federal discrimination law
reform (2019) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/discussion-
paper-priorities-federal-discrimination-law> p. 26.
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Commission will update the SCA on these negotiations at the time of our accreditation
review.
Examples of verbal advocacy on selection processes undertaken by the Commission about
this issue include:
• On 24 March 2021, the President met with the Assistant Minister responsible for the
Commission regarding consideration by the government to remove funding for the
Human Rights Commissioner position (on the basis that the incumbent in the role
would not be re-appointed and the role not filled). The President encouraged
consideration of extension for the incumbent Human Rights Commissioner, and that
any proposed other appointment be undertaken through an advertised open process.
• On 1 April 2021, the Attorney-General's Chief of Staff telephoned the President to
advise of the extension of the terms of the Sex Discrimination Commissioner and
Age Discrimination Commissioner, but that the incumbent Human Rights
Commissioner was not being extended. There was no discussion about alternative
appointments to the role.
• On 8 July 2021, the President and Attorney-General spoke on the phone. In relation
to the Human Rights Commissioner role, the Attorney indicated she was considering
making an appointment. The President emphasised that the position was unfunded
and recommended an open process, if considering appointment.
• On 27 September 2021, the President spoke with the Secretary of the Attorney-
General’s Department, regarding the upcoming accreditation process, requesting
information from the Government to include in our application. The issue of
appointment processes was discussed.
The following letters indicate the way in which selection processes have been conducted and
the Commission’s advocacy on ensuring Paris Principles compliance processes are adopted:
4 April 2016 – Supporting Document ’13. Letter from Attorney-General to chair of
selection panel’:
• Regarding selection panel for Human Rights Commissioner, Age Discrimination
Commissioner, Disability Discrimination Commissioner
• Sets out guidance on the government’s expectations on the qualities and experience
of shortlisted candidates - notably, this includes that they be a ‘strong and effective
advocate for human rights’ with an ability to work with the government and to be
critical of government where required
• Confirms that the process should be consistent with the APSC Merit and
Transparency Guidelines and relevant legislation (AHRC Act & Age and Disability
Discrimination Acts).
23 August 2016 – Supporting Document ’14. Letter from Attorney-General to President’:
• Requests the President participate in the selection panel for the Aboriginal and Torres
Strait Islander Social Justice Commissioner
• Advises that the process will be consistent with the APSC Merit and Transparency
Guidelines.
8 February 2017 – Supporting Document ’15. Letter from President to Attorney-General’:
• Informs the Minister of the outcome of the Commission’s SCA review and that the
Commission was re-accredited with A status. The letter highlights the
recommendations of the SCA and requests further discussion of the sub-committee’s
recommendations and Paris Principles with the Government.
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33
A copy of the Commission’s high level organisational chart is provided as Supporting
Document ‘18. Organisational Chart’
.
The Commission receives an annual appropriation approved by the federal parliament.
Staffing and budget is allocated by the President and Chief Executive across these support
areas. Operational matters are managed by the Chief Executive, through delegation from
the President. Most funding received is untied and can be applied at the discretion of the
President.
Under the PGPA Act, the Commission can also source external funding from other sources.
The Commission enters into partnerships and sponsorship arrangements for funding and
receives significant pro-bono support from the private sector, particularly legal and
consultancy firms. The Commission has internal controls to ensure that no external funding
arrangements compromise the independence of the Commission.
The Commission also has an additional revenue stream through the provision of corporate
services (Finance, ICT and payroll services) to the Office of the Australian Information
Commissioner, a co-located federal government agency. This service delivery arrangement
has supplemented Commission resourcing in its corporate functions for the past decade but
will cease in June 2022.
The Commission has expressed concern about the sustainability of its funding base over
many years. Challenges faced by the Commission since the previous accreditation review
include:
• The appointment of 2 Commissioners without funding being provided (in particular,
funding had been removed for the Disability Discrimination Commissioner in 2014,
and was not restored when appointments to this role were made in 2016 and 2019;
and funding was not provided when the Human Rights Commissioner was appointed
in 2016, and is yet to be confirmed following the appointment of a Human Rights
Commissioner in 2021)
• A sustained increase in complaints of discrimination and human rights breaches
without any dedicated funding increases
• A substantial increase in complaints during the COVID-19 pandemic, with no
additional funding support
• No general increase in the overall budget of the Commission, requiring increased
property and staffing costs to be met through the existing appropriation.
In 2021, the Commission has identified that it is now facing significant financial challenges
that affect its financial viability. The Commission’s financial situation is a result of both
having staffing beyond affordability levels, as well as the unfunded cost pressures referred
to above.
The Commission has implemented internal budget controls and improved financial reporting
to address the financial challenges. The Commission is working cooperatively with the
government to develop and implement a pathway to financial sustainability. This includes
the establishment of a steering committee to support the development of options to allow
the Commission to transition to a sustainable financial footing by the end of the 2021-22
year, as far as practicable. The steering committee, comprising senior representatives from
the government and the Commission, will provide the government with the basis upon
which it determines the amount and timing of funding it will allocate from its reserves in
2021-22 to support the transition of the Commission to a sustainable financial footing. The
Government has also provided the support of 2 financial services firms to assist the
Commission to develop a plan to operate within its appropriated funding.
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39
From:
Leanne Smith
Sent:
Tuesday, 22 February 2022 1:19 PM
To:
Cc:
Rosalind Croucher; Darren Dick;
Subject:
AHRC - GANHRI re-accreditation [SEC=OFFICIAL]
Attachments:
220222_Memo_AHRC_GANHRI reaccreditation.docx
Dear
As foreshadowed in recent discussions and emails, please find attached a Memo from the
Commission to AGO concerning the upcoming GANHRI re-accreditation process for the
AHRC.
I would be very glad to discuss with you when you have a moment. I note that our
reaccreditation interview has now been scheduled for 15 March.
I have raised the same points, separately, in my introductory calls with both AGD and DFAT.
Best Wishes,
Leanne
______________________________________________________________________
Leanne Smith
Chief Executive
Australian Human Rights Commission
GPO Box 5218, Sydney NSW 2001
T +61 2 9284 9600
E xxxxxx.xxxxx@xxxxxxxxxxx.xxx.xx |
W humanrights.gov.au
Human rights: everyone, everywhere, everyday We acknowledge the traditional custodians of this land, the Gadigal peoples of the Eora Nation,
and pay our respects to their Elders, past, present and future.
The Australian Human Rights Commission remains committed to safeguarding the human rights of everyone in our
community. We have closed our offices and our staff are working remotely until further notice. For more information on our
work during the COVID-19 pandemic, please visit our website.
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OFFICIAL
MEMO
To:
Adviser (IR and Legal)
Office of the Attorney General
From: Leanne Smith
Chief Executive
AHRC
CC:
Date: 22/2/2022
Re: AHRC — International Accreditation review as an ‘A Status’ National
Human Rights Institution
____________________________________________________________________________________
Background
1. In March 2020, the Australian Human Rights Commission will be considered for
accreditation as a national human rights institution (NHRI) by the Sub-Committee
on Accreditation (SCA) of the Global Alliance of National Human Rights
Institutions (GANHRI). The Commission submitted its written application for the
review in the first week of October 2021.
2. The UN General Assembly and the Human Rights Council encourage NHRIs to
seek accreditation status through the GANHRI. UN human rights mechanisms
including the Universal Periodic Review, Treaty Bodies and the Special
Procedures increasingly refer to the Paris Principles and the GANHRI
accreditation process, to encourage the establishment and strengthening of fully
Paris Principles-compliant NHRIs worldwide.
3. Accreditation occurs on a five yearly cycle, with NHRIs graded as either ‘A’ or ‘B’
status institutions. ‘A status’ institutions are those that fully comply with the Paris
Principles (United Nations General Assembly Principles relating to the Status of
National Institutions, UN General Assembly Resolution 48/134, 20 December
1993). ‘B status’ institutions are those that do not fully comply with the Paris
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Australian Human Rights Commission
OFFICIAL
Principles.
4. Advocating for al nations to establish and maintain A status NHRIs has been a
key pillar of the Australian Government’s foreign policy for many decades. It was
one of the five pillars of the Australian Government’s voluntary commitments
when seeking membership of the UN Human Rights Council and is a key signifier
of Australia’s commitment to human rights, democracy and the rule of law
internationally.
5. As part of our accreditation review, the Commission is encouraged to identify
actions that have been taken to address the recommendations made by the SCA
in its previous accreditation review in 2016. These recommendations, which were
provided to the former Attorney-General, are set out in the attachment to this
note.
6. In 2022, one key matter that could affect our ‘A status’ accreditation concerns the
current process of appointment of Commissioners.
Appointment of Commissioners
7. A key aspect of the GANHRI accreditation process focuses on the process of
selection and appointment of members of the Commission. The SCA has
adopted the following General Observation on selection and appointment:
Selection and appointment of the governing body:
The Sub-Committee notes the critical importance of the selection and
appointment process of the governing body in ensuring the pluralism and
independence of the National Institution. In particular, the Sub-Committee
emphasises the following factors:
1.
A transparent process 2.
Broad consultation throughout the selection and appointment process 3.
Advertising vacancies broadly 4.
Maximising the number of potential candidates from a wide range of
societal groups
5.
Selecting members to serve in their own individual capacity rather than on
behalf of the organization they represent.
8. When the Commission underwent its review in 2016, the appointment of the
Human Rights Commissioner, without public advertising or a merit-based
selection process, was identified as a major concern. The appointment process
was the subject of a recommendation by the SCA to be remedied in the
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Australian Human Rights Commission
OFFICIAL
subsequent 5-year period, ending in 2022 — by the time of the current re-
accreditation process.
9. Since then, two further Commissioners have been appointed through processes
that did not meet the GANHRI requirements for independent NHRIs — the
Disability Discrimination Commissioner in 2019 and Human Rights Commissioner
in 2021.
10. The Attorney-General’s Department, working with the Attorney-General’s Office,
has assisted in providing background information about the appointments
processes for all Commissioner appointments, including the President, since
2016. This information was included in the accreditation application that was
submitted to the SCA in October.
11. The Commission is required to appear before the SCA on 15 March.
12. The issue of appointment processes is one that receives significant attention in
the review process by the SCA. The Commission was put on notice on 8 February
that we will be asked about the appointments of the Disability Discrimination
Commissioner and Human Rights Commissioner.
13. Precedent from other NHRI reviews suggests that there is a substantial likelihood
that the Commission will face challenges to retain its ‘A status’ without addressing,
in some form, the recommendation made by the SCA in 2016. This may result in:
1. downgrading of the Commission to ‘B status’ — for the first time
since the Paris Principles were established in 1993 ; or
2. deferral of accreditation for 12 months to enable the government
to make necessary changes.
14. A downgrade to B status would mean that the AHRC does not have participation
rights in UN fora, including human rights treaty committees and the UN Human
Rights Council. This would be a significant focal point for international attention in
all UN treaty body reviews, the UPR and in the UN Human Rights Council.
15. In addition to the issue of ensuring the Commission’s independence through the
appointments processes, there is also the issue of the legitimacy of the
appointment for the incumbent and their ability to credibly fulfill their role. An
open, merit-based appointment process provides the candidate selected for
appointment with legitimacy and enables them to undertake their role without
having to answer criticism for their own appointment.
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Australian Human Rights Commission
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For consideration — strengthening protocols for appointment processes
16. In order to address similar concerns of the SCA in their most recent review, the
New Zealand Government recently introduced a formalised selection process for
commissioner appointments to the New Zealand Human Rights Commission, as
set out here:
https://www.justice.govt.nz/assets/Documents/Publications/Guidance-for-the-
appointment-of-Human-Rights-Commissioners.pdf
17. There are broad similarities between the NZ approach and the existing Australian
Government’s Merit and Transparency Policy. In New Zealand decisions about
selection still rest with the relevant Minister. However, the key differences are
that:
the NZ Guidelines are specifically for appointments to the Human Rights
Commission
the NZ Guidelines expressly reference the Paris Principles and require the
Minister to have regard to them in selecting a candidate for appointment
for new appointments there is a requirement for advertising and for the
constitution of a panel to consider applications.
18. While the SCA recommends legislative entrenchment of selection processes –
something that the AHRC has advocated for consistently over the past decade –
we note that the process now adopted in New Zealand does not involve legislative
reform, but instead sits at the policy level. This has been sufficient for the SCA to
renew New Zealand’s A status accreditation.
Reputational risks for the Australian Government if the Commission were to be
downgraded
19. The Department of Foreign Affairs and Trade has provided its perspective on the
importance of the AHRC retaining A status, in the context of a recent review of the
Commission and risks to our international standing, particularly in our own
region, as fol ows:
The AHRC’s international activities (including engagement in the UN reporting
process) provide critical support to our efforts to advance human rights
globally, a top foreign policy priority, and curtailing these activities would risk
undermining our efforts in this area. The Australian Government’s working
with and accommodation of a truly independent NHRI is the most powerful
example we can provide to other countries to advance global human rights.
The following points outline our concerns:
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45
Australian Human Rights Commission
OFFICIAL
Supporting strong national human rights institutions (NHRIs) is a priority of
Australia's international human rights policy
. We consistently advocate for the
need to strengthen the capacity of NHRls, in our region and globally, as key
mechanisms for advancing the promotion and protection of human rights.
We lead the biennial resolution on the role of NHRIs at the UN Human Rights
Council (most recently at HRC45 in September 2020) and work closely with
Germany, which leads of a complementary resolution in alternate years in the
Third Committee of the UN General Assembly. The AHRC provides critical
input and guidance on the development of these resolutions. Weakening the
role of our own NHRI would risk accusations of hypocrisy from other
countries and civil society and undermine the credibility of Australia's
international leadership on these issues.
The AHRC is recognised internationally as an 'A status' NHRI operating in full
compliance with the UN Principles Relating to the Status of National
Institutions for the Promotion and Protection of Human Rights (the Paris
Principles).
As outlined in the in Australia’s resolution, NHRIs foster the
development and maintenance of inclusive societies through the
performance of their core functions as set out in the Paris Principles and in
line with their independent mandates. To be accorded 'A status' under the
Paris Principles, an NHRI must be independent, possess a broad human rights
mandate and adequate funding, and implement an inclusive and transparent
selection and appointment process. A core function of an A Status NHRI is to
support the link between countries' obligations under international human
rights law, including ratified treaties, and the lived experiences of individuals
on the ground — reducing this role (engagement on international human
rights issues, IHRL treaty body reporting etc.) may result in the AHRC being
demoted in status under the Paris Principles.
The AHRC plays a critical role as a participant in our international Human
Rights Dialogues with other countries, and as the provider of expert technical
assistance to countries with whom we have these dialogues
. Human Rights
Dialogues are a vital tool for Australia in building trust and confidence in
bilateral engagement on human rights issues. Representatives of the AHRC
have participated as members of the Australian delegations in Human Rights
Dialogues with Vietnam, Laos, Iran and China. The participation of AHRC's
representatives enables the direct sharing with partner countries of
information, on both Australia's own experience of dealing with human rights
challenges and the importance and role of independent national human
rights institutions in addressing those challenges. It demonstrates how NHRIs
and governments can work together. AHRC’s provision of technical capacity
building on the ground in partner countries in connection with these
Dialogues is a critical contribution to the promotion and protection of human
rights in the partner countries and reinforces the value of the Dialogue
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46
Australian Human Rights Commission
OFFICIAL
process. Deprioritising the international work of the AHRC would undermine
its ability to participate in Dialogues and provide technical assistance, risking
undermining the effectiveness of Dialogues as a human rights capacity
building tool.
AHRC’s provision of parallel reports to the Australian Government's reports
for its Universal Periodic Review and treaty body appearances is best practice
and provides an important demonstration to other countries of the role and
function of an NHRI.
The HRC resolution which sets out the principles for the
UPR (A/HRC/16/21 of 2011) states that the UPR ‘should ensure the
participation of all relevant stakeholders, including non-governmental
organizations and national human rights institutions’. Preventing the AHRC
from providing these reports would risk criticism from other countries and
civil society that the Australian Government was avoiding scrutiny, undermine
our efforts to encourage other countries to engage in the UPR process in a
constructive and transparent manner as we currently do, and undermine our
action on international human rights issues more broadly.
Recommendations
1. The Commission encourages the Government to consider adopting a formal
policy on Commissioner appointment processes similar to the New Zealand
approach, with an initial focus on advertising the vacancies.
a. This would be an important first step in affirming the independence of
the Commission, its domestic and international legitimacy and
Australia’s international reputation in bilateral and multilateral fora
2. As an immediate step, the Commission encourages the Government to
commit to undertake a merit-based selection process for the next
commissioner appointment, the Religious Discrimination Commissioner
(pending passage of the relevant bil ).
a. This would provide concrete evidence to the SCA of the Government’s
commitment to strengthening the appointment process and to
maintain the A status of the Commission.
6
47
OFFICIAL
ATTACHMENT: SCA recommendations (2016)
Issue
Recommendation
Topic
1. Selection and appointment
APSC merit guidelines exist, but not always followed
The SCA encourages the AHRC to continue to
– either by AG not following recommendation of
advocate for a selection process that specifies
panel or not conducting process at all.
explicit requirements to: a)Publicize vacancies
broadly; b)Maximize the number of potential
The SCA is of the view that it is critically important to candidates from a wide range of societal groups and
ensure the formalization of a clear, transparent and
educational qualifications; c)Promote broad
participatory selection and appointment process for consultation and /or participation in the application,
an NHRI’s decision-making body, and the application screening, selection and appointment process;
of the established process in all cases.
d)Assess applicants on the basis of pre-determined,
objective and publicly-available criteria; and e)Select
The SCA notes that AHRC has proposed
members to serve in their individual capacity rather
amendments to formalize the above selection
than on behalf of the organization they represent.
process in its enabling law, and that it continues to
advocate for such amendments.
The SCA refers to Paris Principle B.1 and to its
General Observation 1.8 on ‘Selection and
appointment of the decision-making body of NHRIs’.
2. Process for dismissal of commissioners
The SCA is of the view that, in order to address the
The SCA accordingly urges the AHRC to advocate for
requirement for a stable mandate, which is
an independent and objective dismissal process
important in reinforcing independence, the enabling regarding the grounds already recognised in the
law of an NHRI must contain an independent and
AHRC Act. The SCA refers to Paris Principle B.3 and
objective dismissal process similar to that accorded
to its General Observation 2.1 on ‘Guarantee of
to members of other independent State agencies.
tenure for members of the NHRI decision-making
This process should apply uniformly to all
body’.
nominating entities. The grounds for dismissal must
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48
Australian Human Rights Commission
OFFICIAL
be clearly defined and appropriately confined to
those actions that impact adversely on the capacity
of the member to fulfil his or her mandate.
The SCA expresses concern about cuts to the AHRC
budget since 2014-15. The SCA again notes, with
concern, the impact of the application of annual
efficiency dividends which erode the AHRCs base
level of funding and therefore its capacity to fulfil its
legislative mandate. The SCA is also concerned
about the conferral of work and the appointment of
additional commissioners without an additional
budget allocation.
3.Adequate funding and financial autonomy
The SCA reiterates that, to function effectively, an
The SCA encourages the AHRC to continue to
NHRI must be provided with an appropriate level of
advocate for an appropriate level of funding to carry
funding in order to guarantee its ability to freely
out its mandate including, where appropriate, the
determine its priorities and activities. Further the
establishment of regional offices.
NHRI ought to be provided with adequate funding
for its operations and ensures that the Commission
retains adequate discretionary funding to
independently set its own program of work. In
The SCA refers to Paris Principle B.2 and to its
particular, adequate funding should, to a reasonable General Observations 1.10 on ‘Adequate funding’
degree, ensure the gradual and progressive
and 2.8 on ‘Administrative regulation’.
realization of improvement in the NHRI’s operations
and the fulfilment of its mandate.
4.Limitation on mandate
The current definition of human rights in the Act
The SCA urges the AHRC to continue advocating for
does not explicitly refer to either the Convention
amendment of the definition of ‘human rights’ within
against Torture or the International Covenant on
the AHRC Act to include the seven core human rights
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49
Australian Human Rights Commission
OFFICIAL
Economic, Social and Cultural rights. The SCA
treaties ratified by Australia (matching the definition
acknowledges that the AHRC interprets its mandate
used by the Parliamentary Joint Committee on
to encompass all human rights. The Paris Principles
Human Rights).
require that an NHRI must be legislatively mandated
for both the promotion and protection of all human
rights.
5.Tenure
The SCA notes the provisions of sections 37 of the
As a proven practice, the SCA encourages that a
AHRC Act, 97 of the Sex Discrimination Act, 114 of
term of between three (3) and seven (7) years with
the Disability Discrimination Act, 30 of the Racial
the option to renew once be provided for in an
Discrimination Act and 53 B of the Age
NHRI’s enabling law. The SCA refers to Paris Principle
Discrimination Act, which each provide that
B.3 and to its General Observation 2.1 ‘Guarantee of
members can be appointed for a term not exceeding tenure for members of the National Human Rights
seven years and that they are eligible for re-
Institution decision-making body’.
appointment, with no limit on the number of times
re-appointment can occur.
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50
51
The SCA Secretariat kindly requests a response to the information in the attached article on or before
22 February
2022 (18:00 CET).
Please acknowledge receipt of this email and its attachment. Thank you very much.
Kind regards,
National Institutions Fellow National Institutions and Regional Mechanisms Section (NIRMS)
Field Operations and Technical Cooperation Division (FOTCD)
Office of the United Nations High Commissioner for Human Rights (OHCHR)
E-mail:
@un.org
Web: w
g
2
52
To:
National Institutions and Regional Mechanisms Section (NIRMS)
Field Operations and Technical Cooperation Division (FOTCD)
Office of the United Nations High Commissioner for Human Rights (OHCHR)
From: Australian Human Rights Commission
Date: 22/2/2022
Re:
Response to The Conversation article: “Australia’s ‘A’ rating on human rights is under
threat with a handpicked, politically engineered commissioner”
Evidence from Statement of Compliance
The Australian Human Rights Commission submitted its Statement of Compliance on 6 October
2021. In the Statement, the Commission outlined that the process for selection and appointment
is conducted in accordance with the merit-based assessment policy and guidelines set out by the
Australian Public Service Commission (APSC guidelines) for the selection of statutory office
holders.1 All portfolios of Government are required to conduct appointment processes in
accordance with these guidelines – including the Attorney-General's Department that conducts
the process for appointment of commissioners to the AHRC.
Appointment processes for most commissioner positions and the role of President have been
filled following extensive national advertising and merit-based selection processes, in
accordance with the APSC guidelines.
The APSC guidelines provide that there may be circumstances where the Attorney-General may
consider a full selection process is not required, including where there is an urgent requirement
to fill a position, as was the case of the Disability Discrimination Commissioner in 2019, or the
availability of an eminent person ‘where there would be little value in conducting a selection
process’, as the Attorney-General advised was the case of the Human Rights Commissioner in
2021.2 In these circumstances, the Attorney-General must request the Prime Minister’s approval
to fill a position without a full selection process. The Commission has been advised by the
Attorney-General’s Department that the government complied with the APSC guidelines for
these processes.
The Commission has regularly advocated for all appointment processes to be publicly advertised
and merit based. This advocacy has taken the form of:
• letters from the President to the Attorney-General and Minister for Foreign Affairs
• briefings of the Attorney-General and the Attorney’s office
• briefings of the Attorney-General's Department and the Department of Foreign Affairs
1 Australian Public Service Commission,
Government’s Merit and Transparency Policy (11 December 2020)
<https://www.apsc.gov.au/working-aps/governments-merit-and-transparency-policy>.
2 Australian Public Service Commission,
Government’s Merit and Transparency Policy (11 December 2020)
[2.6.6].
1
53
• statements in parliamentary processes such as public hearings of the Senate Estimates
Committee
• recommendations to the Government in publicly released discussion papers and reports
to strengthen the governing legislation in accordance with the Paris Principles.3
For further information, refer to
Section 3.2 of the Statement of Compliance, and the following
supporting documents, that were submitted on 6 October 2021:
• Supporting Document ’12. Attorney-General’s Department List of Appointments 2016-
2021’
• Supporting Document ’13. Letter from Attorney-General to chair of selection panel’
• Supporting Document ’14. Letter from Attorney-General to President’
• Supporting Document ’15. Letter from President to Attorney-General’
• Supporting Document ’16. Letter from President to Minister for Foreign Affairs’
• Supporting Document ’17. Letter from Attorney-General to President’
Explanation from Government at senate estimates
In Australia’s Westminster Parliamentary System of Government, the Senate Estimates hearings
are a key accountability measure in which departments and agencies are held accountable to the
Australian parliament, through the Senate.
At the senate estimates hearing on 26 October 2021, the Attorney-General was asked about the
most recent appointment and selection process for a commissioner, namely the Human Rights
Commissioner. The Attorney-General stated that the Commissioner:
was appointed in accordance with the policies and guidelines set out in the government's merit
and transparency policy, which states: ‘Special circumstances where a Minister may consider a full
selection process is inappropriate may include … the availability of an eminent person, where there
would be little value in conducting a selection process.’ … Ms Finlay was considered an eminent
person, eminently qualified for the appointment given her qualifications, knowledge and
experience.
A full transcript of the hearing is available at:
<https://www.aph.gov.au/Parliamentary Business/Hansard/Hansard Display?bid=committees/es
timate/25205/&sid=0002>.
3 Australian Human Rights Commission,
Discussion paper: Priorities for federal discrimination law reform
(2019) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/discussion-paper-
priorities-federal-discrimination-law>; Australian Human Rights Commission,
Free and Equal <https://humanrights.gov.au/free-and-equal>.
2
54
Additional information since statement of compliance
The Commission has continued to undertake briefings and advocacy with the Government about
the processes for the appointment of commissioners in the time period since our application for
re-accreditation was submitted. This engagement has confirmed that the Government considers
that it has made appointments in a manner that is consistent with the government- wide
appointment process for statutory officers.
The Commission has advocated for all appointments to be undertaken utilising the full selection
criteria set out in the government’s policy, so that it does not rely on special circumstances for
any future appointment process. Our most recent advocacy is set out below.
Advocacy to government (verbal):
Additional examples of verbal advocacy on selection processes undertaken by the Commission
about this issue, since the submission of the Statement of Compliance, include:
• On 2 February 2022, the Chief Executive and the President met with the Secretary of the
Attorney-General’s Department, and spoke in that meeting regarding the accreditation
process and matters related to the appointment and selection process.
• On 15 February 2022, the Chief Executive met with the First Assistant Secretary,
Multilateral Policy Division of the Australian Department of Foreign Affairs and Trade
regarding the accreditation process and matters related to the appointment and
selection process.
• On 16 February 2022, the Chief Executive and the President met with the First Assistant
Secretary and the Assistant Secretary to the Integrity and Security Division of the
Attorney-General’s Department regarding the accreditation process and matters related
to the appointment and selection process.
Advocacy to government (written):
Additional examples of written advocacy on selection processes undertaken by the Commission
about this issue, since the submission of the Statement of Compliance, include:
• On 9 February 2022, the Chief Executive sent a draft briefing note to the office of the
Attorney-General for their comment prior to sending to the Attorney-General.
• On 22 February 2022, the Chief Executive sent a memo to the Attorney-General seeking
commitments regarding the appointment and selection process as per below. An extract
of the memo is attached as Supporting Document 24. Memo to Attorney-General.
The memo includes two recommendations to strengthen protocols for the appointment process:
3
55
1. The Commission encourages the Government to consider adopting a formal policy on
Commissioner appointment processes similar to the New Zealand approach, including by
advertising all vacancies.
2. As an immediate step, the Commission encourages the Government to commit to undertake a
merit-based selection process for the next commissioner appointment, the Religious
Discrimination Commissioner (pending passage of the relevant bill).
Advocacy to government (public reports):
In December 2021, the Commission released the final report on discrimination law reform titled
Free & Equal: A reform agenda for federal discrimination laws.4 The Position Paper includes
recommendations to strengthen the governing legislation of the Commission in accordance with
the Paris Principles. It includes several recommendations to Government to amend the
Australian Human Rights Commission Act 1986 (Cth) as a matter of priority, including:
•
Specifying that all Commissioner appointments can only be made following a clear,
transparent, merit-based and participatory selection and appointment process.
•
Including a reference to the Paris Principles in the objects clause of the legislation
acknowledging that the AHRC is intended to be a Paris Principles compliant national
human rights institution.
•
Including a definition of human rights in the AHRC Act that references all of Australia’s
international human rights obligations.5
Key work undertaken by the Human Rights Commissioner since appointment:
The new Human Rights Commissioner commenced her term on 22 November. Since that time,
the Commissioner has advocated publicly on complex human rights issues, calling the
government to account for its performance on these issues in clear demonstration of her
independence.
Examples of the work completed by the Human Rights Commissioner since commencement on
22 November 2021:
• On 8 December 2021, the Human Rights Commissioner hosted a national Workshop with
stakeholders from state and territory human rights institutions, academia, international
organisations and civil society. The Workshop involved discussion of the challenges and
opportunities to human rights presented by the COVID-19 pandemic.
• The Commissioner has published opinion pieces in newspapers nationally, criticising the
government’s performance on the handling of the COVID-19 pandemic, immigration
detention and OPCAT implementation as follows:
4 Australian Human Rights Commission,
Free & Equal: A reform agenda for federal discrimination laws
(December 2021) < https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-
reform-agenda-federal-discrimination-laws>.
5 Australian Human Rights Commission,
Free & Equal: A reform agenda for federal discrimination laws
(December 2021) < https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-
reform-agenda-federal-discrimination-laws> p.306.
4
56
o Lorraine Finlay, ‘Time for review on COVID-19 border and quarantine restrictions’,
The West Australian (online) 18 December 2021
<https://thewest.com.au/opinion/covid-restrictions-must-be-measured-and-give-
regard-to-the-impact-on-our-lives--c-4985908>.
o Lorraine Finlay, ‘Novak Djokovic drew global attention to Australia's immigration
detention regime. Now we need proper scrutiny of all places of detention’,
ABC
News (online) 20 January 2022 <https://www.abc.net.au/news/2022-01-
20/djokovic-australia-immigration-detention-hotel-scrutiny-opcat/100767220>.
o Melissa Coade, ‘Time’s up for Australia to implement OPCAT, commissioner says’,
The Mandarin (online) 25 January 2022
<https://www.themandarin.com.au/179473-times-up-for-australia-to-implement-
opcat-commissioner-says0>/.
• On 15 February 2022, the Commissioner appeared at the Senate Budget Estimates
process (in Parliament) and spoke to the importance of the implementation of OPCAT in
Australia, and urged the federal and state and territory governments to work together to
embed the measures of the protocol.
• The Commissioner made submissions to two parliamentary inquiries into the
government’s proposed Religious Discrimination Bill,6 and also appeared before the
Parliamentary Joint Committee on Human Rights on Friday 14 January 2022, and the
Senate Legal and Constitutional Affairs Legislation Committee on Friday 21 January 2022.
In these appearances and submissions, the Commissioner expressed significant concern
about the scope of the proposed bill and made recommendations to improve the bill.
This bill is a priority law reform of the Prime Minister that has attracted significant
political attention.
6 Submission 97 to the Parliamentary Joint Committee on Human Rights
<https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/ReligiousDiscrimination
/Submissions>; and Submission 32 to the Senate Legal and Constitutional Affairs Legislation Committee
<https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Rel
igiousdiscrimination/Submissions>.
5
57
5. SELECTION AND APPOINTMENT PROCESS
Issue of Concern 2: Appointments without merit-based selection
• The Attorney-General may unilaterally propose a candidate that did not go through the
merit-based selection process by the APSC as in the case of the appointments of the
Disability Discrimination Commissioner in 2019 and the Human Rights Commissioner in
2021
.
• An article published on 9 September 2021 on the website theconversation.com pointed
out that the “handpicked appointment of a new human rights commissioner… threatens
to undermine the independence and legitimacy of the [AHRC]” as it was not the “result of
an open and competitive process.”
Response:
• We understand that the SCA previously made a recommendation regarding the
appointment and selection process, and we agree that there is a concern for the potential
perception that can accompany a direct appointment, as the Conversation article
il ustrates.
• We as an institution provide the support to the incumbent to ensure that they can exercise
their role independently, as we wil demonstrate in a moment.
• We have directed our advocacy to change this as a matter of policy and practice. I am
delighted to say that our advocacy to government has recently resulted in some success,
with a written commitment from the Attorney-General that appointments moving forward
wil be openly advertised. We wil continue to advocate for that commitment to result in
legislative change.
• I wil first provide some background and context.
• The Government has asserted that it has complied with, and did apply the merit-based
selection process in the Australian Public Service Commission’s
Government’s Merit and
Transparency Policy (dated December 2020), which applies across al government agencies
for al Commissioner appointments, which al ows for exceptional circumstances.
• This usual y means that they conduct a merit-based, publicly advertised appointment
process.
• In the case of the Disability Commissioner in 2019, the Government had conducted a broad
consultation process about statutory appointments to the Royal Commission into
Disability, and then appointed the then Disability Discrimination Commissioner to this
Royal Commission. The newly appointed Disability Discrimination Commissioner was not
separately advertised, but was considered as part of this broader selection process. The
exceptional circumstance for not conducting a separate process was to ensure that the
Commission was able to ful y participate, as an NHRI, in the periodic review of Australia by
the Committee on the Rights of Persons with Disabilities which was scheduled within
months of the appointment.
• Regarding the Human Rights Commissioner appointment in 2021, at the senate estimates
hearing on 26 October 2021, the Attorney-General stated that the Commissioner:
was appointed in accordance with the policies and guidelines set out in the
government's merit and transparency policy, which states: ‘Special circumstances
where a Minister may consider a ful selection process is inappropriate may
include … the availability of an eminent person, where there would be little value
in conducting a selection process.’ … Ms Finlay was considered an eminent
7
58
person, eminently qualified for the appointment given her qualifications,
knowledge and experience.
• The Commission has continued to advocate for all appointments to be undertaken utilising
the ful selection criteria set out in the government’s policy, so that it does not rely on
special circumstances for any future appointment process.
• Since the submission of the Commission’s Statement of Compliance in October 2021, this
advocacy has included:
o 2 February 2022 - Chief Executive and President met with the Secretary of the
Attorney-General’s Department. The Secretary is the head of the Department.
o 15 February 2022 - Chief Executive met with First Assistant Secretary, Multilateral
Policy Division of the Australian Department of Foreign Affairs and Trade
o 16 February 2022 - Chief Executive and President met with the First Assistant
Secretary and the Assistant Secretary to the Integrity and Security Division of the
Attorney-General’s Department
o 9 February 2022 - Chief Executive sent a draft briefing note to the office of the
Attorney-General for their comment prior to sending to the Attorney-General
o 22 February 2022 - Chief Executive sent memo to the Attorney-General seeking
commitments regarding the appointment and selection process, including two
recommendations:
1. The Commission encourages the Government to consider adopting a
formal policy on Commissioner appointment processes similar to the New
Zealand approach, including by advertising al vacancies.
2. As an immediate step, the Commission encourages the Government to
commit to undertake a merit-based selection process for the next
commissioner appointment, the Religious Discrimination Commissioner
(pending passage of the relevant bill).
o December 2021 - the Commission released the final report on discrimination law
reform titled
Free & Equal: A reform agenda for federal discrimination laws.2 The
Position Paper includes recommendations to strengthen the governing legislation
of the Commission in accordance with the Paris Principles, including a
recommendation to Government to amend the
Australian Human Rights
Commission Act 1986 (Cth) to specify that al Commissioner appointments can only
be made fol owing a clear, transparent, merit-based and participatory selection
and appointment process.3
• Since commencing on 22 November, the Human Rights Commissioner has advocated
publicly on complex human rights issues, cal ing the government to account for its
performance on these issues in clear demonstration of her independence. Examples
include:
2 Australian Human Rights Commission,
Free & Equal: A reform agenda for federal discrimination laws
(December 2021) < https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-
reform-agenda-federal-discrimination-laws>.
3 Australian Human Rights Commission,
Free & Equal: A reform agenda for federal discrimination laws
(December 2021) < https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-
reform-agenda-federal-discrimination-laws> p.306.
8
59
o 8 December 2021 - HRC hosted national Workshop with state and territory human
rights institutions, academia, international organisations and civil society, to
discuss chal enges and opportunities to human rights presented by the COVID-19
pandemic.
o The HRC’s opinion pieces have been published in newspapers national y, criticising
the government’s performance on the handling of the COVID-19 pandemic,
immigration detention and OPCAT implementation,4 as wel as an article on the
human rights implications of the Ukraine conflict.
o 15 February 2022 - at the Senate Budget Estimates process (in Parliament), the HRC
spoke to the importance of the implementation of OPCAT in Australia, and urged
the federal and state and territory governments to work together to embed the
measures of the protocol.
o The HRC made submissions to two parliamentary inquiries into the government’s
proposed Religious Discrimination Bil ,5 and appeared before two committees to
provide evidence.6 The Commissioner expressed significant concern about the
scope of the proposed bill and made recommendations to improve the bill. This bill
is a priority law reform of the Prime Minister that has attracted significant political
attention.
• As the materials we have provided demonstrate, we have advocated for the Government
to not rely on the exemption process and to clarify that they wil always ensure positions
are publicly advertised. We have made significant progress in dealing with this issue.
• On 11 March, the Commission received a letter with a written commitment from the
Attorney-General that they wil ensure advertised processes into the future.
• The letter states: “
While I am satisfied that these appointments have been made in accordance
with the Merit and Transparency Guidelines, in light of the concerns raised by GANHRI, I have
asked my department for advice on this matter. In the meantime, I advise that future
appointments of Commissioners wil be openly advertised, including for the proposed Religious
4Lorraine Finlay, ‘Time for review on COVID-19 border and quarantine restrictions’,
The West Australian (online) 18 December 2021
<https://thewest.com.au/opinion/covid-restrictions-must-be-measured-and-give-
regard-to-the-impact-on-our-lives--c-4985908>.
Lorraine Finlay, ‘Novak Djokovic drew global attention to Australia's immigration detention regime. Now we
need proper scrutiny of all places of detention’,
ABC News (online) 20 January 2022
<https://www.abc.net.au/news/2022-01-20/djokovic-australia-immigration-detention-hotel-scrutiny-
opcat/100767220>.
Melissa Coade, ‘Time’s up for Australia to implement OPCAT, commissioner says’,
The Mandarin (online) 25
January 2022 <https://www.themandarin.com.au/179473-times-up-for-australia-to-implement-opcat-
commissioner-says0>/.
5 Submission 97 to the Parliamentary Joint Committee on Human Rights
<https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/ReligiousDiscrimination
/Submissions>; and Submission 32 to the Senate Legal and Constitutional Affairs Legislation Committee
<https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Reli
giousdiscrimination/Submissions>.
6 Parliamentary Joint Committee on Human Rights on Friday 14 January 2022, and the Senate Legal and
Constitutional Affairs Legislation Committee on Friday 21 January 2022.
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60
Discrimination Commissioner.” We will provide a copy of this letter to the Committee at the
end of the session.
• We are hopeful that we wil be able to secure amendments to our legislation to embed this
understanding.
•
A recommendation from the Committee to this effect will be most helpful to the
Commission in continuing its advocacy with government: That the Australian
Government ensure that all appointment processes are based on a publicly
advertised, merit-based selection process and that this is reflected in legislation as
well as operational policies.
Issue of Concern 3: Consultation/participation in selection
process
• The Act is silent on measures to promote broad consultation and/or participation in the
selection and appointment process
.
Response:
• The process is guided by the Australian Public Service Commission’s
Government’s Merit and
Transparency Policy (APSC Policy)
• The assessment panel for AHRC Commissioner appointments consists of a representative
of the Australian Public Service Commissioner, the Commission’s President, and one or
more additional panel members as needed to maintain or establish gender balance or
provide specialist expertise.
• The President has on a number of occasions sat on the selection panel.
Potential Question 4: Future advocacy on appointment process
• What are the Commission’s plans for future advocacy for improved selection and
appointment process?
Response:
• The Commissioner wil continue to advocate for the
Australian Human Rights Commission
Act 1986 (Cth) to be amended to specify that al Commissioner appointments can only be
made fol owing a clear, transparent, merit-based and participatory selection and
appointment process.
• The Attorney-General’s Office has indicated an openness to consider legislative change.
•
A helpful advocacy tool for this endeavour would be a recommendation from the
Committee that the Australian Government ensure that all appointment processes
are based on a publicly advertised, merit based selection process and that this is
reflected in legislation as well as operational policies.
Issue of Concern 5: Appointment criteria for President
• The Act is silent on the relevant criteria for appointment as President
.
10
61
Accreditation as an ‘A status’ NHRI
What is it?
The UN General Assembly and the Human Rights Council encourage countries to establish
and maintain ‘A status’ NHRIs as a commitment to advancing human rights and meeting
their obligations under the UN Charter and human rights treaties.
NHRIs must be accredited through a process run by the Sub-Committee on Accreditation of
the Global Al iance of NHRIs (SCA), which is supported in running the accreditation process
by the Office of the High Commissioner for Human Rights.
The accreditation process establishes whether NHRIs meet minimum standards relating to
transparency, rigour and independence as set out in the Paris Principles. The SCA also
develops General Observations which interpret the Paris Principles and set out detailed
requirements to be met.
NHRIs are reviewed every 5 years. The outcome of a review is a set of recommendations to
improve compliance with the Paris Principles, and a rating of A or B status.
A status accreditation grants participation in the work and decision-making of the GANHRI,
as well as regional NHRI bodies (APF and Cth Forum) as wel as in the work of the UN Human
Rights Council, UN human rights treaty bodies and other UN mechanisms (such as
indigenous specific mechanisms).
B status means that an institution does not fully meet the Paris Principles and they do not
enjoy participation status in NHRI bodies or UN processes.
Why does it matter?
Four key reasons:
1. ‘A status’ is reputational for the Commission – it signals to al that the relevant
institution is robust, free from political bias and interference. ‘B status’ institutions
are seen as lacking credibility and their outputs as potential y being compromised.
2. ‘A status’ institutions form an important plank in the foreign policy of many
countries, including Australia. Failure to maintain ‘A status’ would be a significant
diplomatic problem for Australia’s positioning in the UNGA and HRC, and undermine
the credibility of their advocacy.
3. ‘A status’ enables an NHRI to participate in key UN processes such as UPR, treaty
bodies, Human Rights Council and other associated mechanisms. This is a key
accountability mechanism for Australian governments in meeting human rights
obligations.
4. There are technical issues for the APF if Australia did not maintain an ‘A status’
institution as their incorporation is in Australia under the Corporations Law, requires
the Australian institution to have a director of the APF – this is not achievable if the
Commission were ‘B status’ as such institutions cannot serve as members of the APF.
62
What did they say last time (2016)?
The Commission has always been accredited as A status, and enjoys a reputation as a
leading NHRI internationally. In 2016, A status was conferred on the Commission, with 3
areas of concern for the Commission to address and 2 further issues of concern for noting.
These are summarised below, with the full accreditation report
appended to this document.
Topic
Issue
Recommendation
1. Selection and APSC merit guidelines exist, but not
The SCA encourages the AHRC to
appointment
always fol owed – either by AG not
continue to advocate for a
following recommendation of panel or selection process that specifies
not conducting process at all.
explicit requirements to:
a)Publicize vacancies broadly;
The SCA is of the view that it is critically b)Maximize the number of
important to ensure the formalization
potential candidates from a
of a clear, transparent and
wide range of societal groups
participatory selection and
and educational qualifications;
appointment process for an NHRI’s
c)Promote broad consultation
decision-making body, and the
and /or participation in the
application of the established process
application, screening, selection
in all cases.
and appointment process;
d)Assess applicants on the basis
The SCA notes that AHRC has
of pre-determined, objective
proposed amendments to formalize
and publicly-available criteria;
the above selection process in its
and e)Select members to serve
enabling law, and that it continues
in their individual capacity
to advocate for such amendments.
rather than on behalf of the
organization they represent.
The SCA refers to Paris Principle
B.1 and to its General Observation
1.8 on ‘Selection and appointment
of the decision-making body of
NHRIs’.
2. Process for
The SCA is of the view that, in order to The SCA accordingly urges the
dismissal of
address the requirement for a stable
AHRC to advocate for an
commissioners mandate, which is important in
independent and objective
reinforcing independence, the
dismissal process regarding the
enabling law of an NHRI must
grounds already recognised in the
contain an independent and
AHRC Act. The SCA refers to Paris
objective dismissal process similar to Principle B.3 and to its General
that accorded to members of other
Observation 2.1 on ‘Guarantee of
independent State agencies. This
tenure for members of the NHRI
process should apply uniformly to all
decision-making body’.
nominating entities. The grounds for
dismissal must be clearly defined
and appropriately confined to those
actions that impact adversely on the
capacity of the member to fulfil his
or her mandate.
63
3.Adequate funding
The SCA expresses concern about cuts The SCA encourages the AHRC to
and financial
to the AHRC budget since 2014-15. The continue to advocate for an
autonomy
SCA again notes, with concern, the
appropriate level of funding to
impact of the application of annual
carry out its mandate including,
efficiency dividends which erode the
where appropriate, the
AHRCs base level of funding and
establishment of regional offices.
therefore its capacity to fulfil its
legislative mandate. The SCA is also The SCA refers to Paris Principle
concerned about the conferral of
B.2 and to its General
work and the appointment of
Observations 1.10 on ‘Adequate
additional commissioners without an
funding’ and 2.8 on
additional budget allocation.
‘Administrative regulation’.
The SCA reiterates 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. Further the
NHRI ought to be provided with
adequate funding for its operations
and ensures that the Commission
retains adequate discretionary
funding to independently set its own
program of work. In particular,
adequate funding should, to a
reasonable degree, ensure the
gradual and progressive realization
of improvement in the NHRI’s
operations and the fulfilment of its
mandate.
4.Limitation on
The current definition of human
The SCA urges the AHRC to
mandate
rights in the Act does not explicitly
continue advocating for
refer to either the Convention against amendment of the definition of
Torture or the International Covenant
‘human rights’ within the AHRC
on Economic, Social and Cultural rights. Act to include the seven core
The SCA acknowledges that the
human rights treaties ratified by
AHRC interprets its mandate to
Australia (matching the
encompass all human rights. The
definition used by the
Paris Principles require that an NHRI Parliamentary Joint Committee
must be legislatively mandated for
on Human Rights).
both the promotion and protection of
all human rights.
5.Tenure
The SCA notes the provisions of
As a proven practice, the SCA
sections 37 of the AHRC Act, 97 of the
encourages that a term of
Sex Discrimination Act, 114 of the
between three (3) and seven
Disability Discrimination Act, 30 of the (7) years with the option to renew
Racial Discrimination Act and 53 B of
once be provided for in an NHRI’s
the Age Discrimination Act, which
enabling law. The SCA refers to
each provide that members can be
Paris Principle B.3 and to its
appointed for a term not exceeding
General Observation 2.1
seven years and that they are eligible
‘Guarantee of tenure for members
64
for re-appointment, with no limit on
of the National Human Rights
the number of times re-appointment
Institution decision-making body’.
can occur.
What are the challenges this time around?
In this accreditation round, the key issues for the Commission remain the same as 2016 but
with two qualitative differences:
- The ‘non-compliant’ appointment of a Commissioner in 2013 was able to be
described as an aberration, and the only time this had occurred in the Commission’s
history. There have been two further appointments in the past five years that have
been ‘non-compliant’, and the recommendation of the SCA to amend legislation to
ensure this does not repeat was not implemented.
- The budgetary chal enges being faced by the Commission are of a significantly
different order to those that were considered at the most recent accreditation. To
the extent that the budgetary chal enges are the result of systemic underfunding of
the Commission, they are Paris Principles issues. Explaining this will be challenging,
given that the lack of financial controls and internal management has contributed to
the current financial challenges (which is not a Paris Principles compliance issue).
The SCA tends to be careful to not punish NHRIs for inaction of their governments. Issues of
concern from the last accreditation such as procedures for dismissal and tenure, and
breadth of coverage, would not usual y be issues that would lead to a downgrading of an
institution.
Resourcing issues would only lead to downgrading if the variance in funding since the
previous accreditation was manifestly different or deliberately targeted to limit the
effectiveness of the institution. The process wil however result in some pressure on the
government to ensure that the Commission has adequate resources. (Also, SCA
recommendations sometimes also appear in other human rights processes such as
concluding observations of treaty bodies and UPR. It is likely that a strongly worded concern
about resourcing would become a matter of scrutiny for the government in al treaty based
processes for the foreseeable future).
Accordingly, the key issue that will determine A or B status will be merit based selection
processes of commissioners. A number of institutions have been downgraded due to this
issue.
Potential impact of non-merit based selection processes
There is a significant prospect that the Commission wil be considered for downgrade to B
status due to ongoing and longstanding concerns about appointment processes of
commissioners.
Factors that wil likely be weighed up and which may influence the SCA in favour of
downgrading the Commission include:
65
- The longstanding nature of this concern – with no action to remedy it in legislation
over successive accreditation periods
- The fact that it is not a theoretical concern, but that there are now 3 non-compliant
appointments in the past 8 years
Factors that wil likely be considered and influence the SCA to not downgrade the
Commission include:
- How robust the Commission has been in advocating for change to the legislation,
and in expressing concerns about non-compliant processes. The public nature of
how the Commission has expressed its views on these matters wil also be
significant.
- Any explanation that can be provided by the government as to what processes were
used (eg is it compliant with the APSC merit appointment guidelines?)
- Evidence that appointments have not contributed to the politicisation of the
Commission – eg by referencing advocacy work of commissioners.
What happens if the SCA recommends downgrading to B status?
If the SCA considers that this issue renders the Commission not compliant with the Paris
Principles, it usually defers a decision about A status for a period of 18-24 months to enable
the Commission to address the concerns. In this instance, this would provide a window of
time for reforms to be implemented to ensure the Commission is Paris Principles compliant.
If at the end of that time period the Commission is stil assessed as not compliant, then it
would be formal y downgraded to B status. This downgrade would take effect after 12
months.
In other words, there wil likely be a window of 18-24 months, and a further window of 12
months, in which to address the issues of concern.
While the SCA recommends key matters that must be addressed for merit based selection
processes, it does not specify that they must be in legislation. The SCA General Observations
note that they can also be implemented through regulation, although this would have to be
considered ‘binding’ in effect.
Key issues
The political reality is that the Commission has long recommended addressing the
shortcomings in the legislation that potentially have Paris Principles compliance
implications, and neither side of politics has taken action to address this (although some
concerns would have been addressed in the consolidation of discrimination laws process).
The forthcoming accreditation process, therefore, provides an opportunity for the
Commission to finally get action on key issues of concern.
It is likely that retaining an A status institution would be a matter of significant concern to
DFAT and also AGD (who also understand the political problem B status would create in
treaty reporting processes).
66
There are a range of actions that the Commission could consider over the next 6 months,
before the Committee is formally considered for re-accreditation in late March 2022. These
actions include:
- Clearly expressing concern about the non-compliance issues: publicly, in Commission
reports and submissions, media, Senate Estimates, and with Ministers and
departments
- Advocating for legislative or other appropriate reform to ensure future appointment
processes are compliant: for example, by attaching amendments to the AHRC Act on
this to other amendment bil s (whether specific to the Commission or portfolio
miscellaneous bills)
- Requesting the SCA to defer accreditation by 24 months on the basis of the known
non-compliance and using this time to advocate for necessary legislative (or other)
reform. This could be done on the basis of the merit appointments issue and possibly
also the resourcing issue, to place some external scrutiny on the government for
how it responds to that issue in the next 18-24 months
Timeline for accreditation
6 October
Written application is submitted to SCA
End October
Commission wil be provided with any NGO submissions outlining
non-compliance issues, FYI
End Feb 2022
OHCHR will provide the Commission with a high level summary of
our application for comment – this is then submitted to SCA and is
a major basis for the consideration of accreditation
Late March 2022, Commission appears before SCA for interview to determine
date tbc
accreditation status. This is by phone or video-conference (FYI:
NHRIs are not permitted to be in person for this review, so as to
ensure that smaller, less well-resourced NHRIs are not
disadvantaged from lacking resourcing to be in person in Geneva)
End of SCA
Draft report is provided to AHRC for consideration. There is a
session
formal appeals process if the NHRI considers the accreditation
(March/April
decision is wrong. After a set time, the report and its
2022)
recommendations for accreditation are confirmed.
March 2024 (TBC) If B status concerns, likely deferment date for reconsideration of
AHRC accreditation
March 2025 (TBC) If B status concerns and remain unaddressed, additional period
before B status takes effect
67
Attachment: AHRC – SCA Accreditation review 2016
Extracted from GANHRI, Report and recommendations of the Sub-Committee on
Accreditation (SCA) , Geneva, 14-18 November 2016, pp9-12.
2.2 Australia: Australian Human Rights Commission (AHRC)
Recommendation: The SCA recommends that the AHRC be re-accredited with A status.
The SCA notes with concern:
1.Selection and appointment
The Australian Human Rights Commission Act and a number of Anti-Discrimination
Acts provide that the Governor-General appoints members of the Commission on
the recommendation of the Attorney General.
The SCA notes that some merit criteria are provided in the relevant enabling laws, and that
the process for the assessment of candidates is specified in the ‘’Merit and
Transparency Guidelines” of the Australian Public Service Commission (APSC). The
Guidelines include requirements to: advertise vacancies; provide detailed selection
criteria; and assess candidates by a panel that includes the independent representative of
the APSC whose role is to ensure the process is in accordance with the Guidelines. On
the completion of the assessment process, the panel determines a pool of suitable
candidates and provides a report to the Commissioner of the APSC for endorsement and
transmission to the Attorney General. The Attorney-General then writes to the Prime
Minister seeking approval for the candidate to be appointed as an AHRC Commissioner by
the Governor-General.
However, the SCA notes that: if the Attorney-General is not satisfied with the
proposed candidates, he or she may unilaterally propose an alternate appointee; and
that, in one instance in 2013, the Attorney-General proposed the appointment of a
Commissioner without fol owing the merit-based selection process outlined above. Such
appointment has the potential to bring into question the legitimacy of the appointees and
the independence of the NHRI.
The SCA is of the view that it is critical y 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 al cases. The SCA
notes that AHRC has proposed amendments to formalize the above selection process
in its enabling law, and that it continues to advocate for such amendments.
The SCA encourages the AHRC to continue to advocate for a selection process that
specifies explicit requirements to: a)Publicize vacancies broadly; b)Maximize the number
of potential candidates from a wide range of societal groups and educational
qualifications; c)Promote broad consultation and /or participation in the application,
screening, selection and appointment process; d)Assess applicants on the basis of pre-
68
determined, objective and publicly-available criteria; and e)Select members to serve in
their individual capacity rather than on behalf of the organization they represent.
The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and
appointment of the decision-making body of NHRIs’.
2.Dismissal process
In accordance with section 41 of the AHRC Act, section 102 of the Sex Discrimination
Act, section119of the Disability Discrimination Act, section 34 of the Racial
Discrimination Act and section 53 G of the Age Discrimination Act, the Governor-
General may remove the Commissioner on the advice of the Executive Council, for the
following reasons: (i) physical or mental incapacity; (ii) misbehaviour; (iii) absence from
duty; and (iv) bankruptcy under their respective applicable above cited laws.
The precise process for dismissal is not further described in the Act.
The SCA is of the view that, in order to address the requirement for a stable mandate, which
is important in reinforcing independence, the enabling law of an NHRI must contain
an independent and objective dismissal process similar to that accorded to members
of other independent State agencies. This process should apply uniformly to al nominating
entities. The grounds for dismissal must be clearly defined and appropriately confined
to those actions that impact adversely on the capacity of the member to fulfil his or
her mandate.
Where appropriate, the legislation should specify that the application of a particular
ground must be supported by the decision of an appropriate body with independent
jurisdiction. The dismissal must be made in strict conformity with all the substantive
and procedural requirements as prescribed by law. It should not be al owed based solely on
the discretion of the appointing authorities. These requirements ensure the security of
tenure of the members of the governing body and are essential to ensure the independence
of, and public confidence in, the senior leadership of an NHRI.
The SCA accordingly urges the AHRC to advocate for an independent and objective
dismissal process regarding the grounds already recognised in the AHRC Act. The SCA refers
to Paris Principle B.3 and to its General Observation 2.1 on ‘Guarantee of tenure for
members of the NHRI decision-making body’.
3.Adequate funding and financial autonomy
The SCA expresses concern about cuts to the AHRC budget since 2014-15. The SCA again
notes, with concern, the impact of the application of annual efficiency dividends which
erode the AHRCs base level of funding and therefore its capacity to fulfil its legislative
mandate. The SCA is also concerned about the conferral of work and the appointment
of additional commissioners without an additional budget al ocation.
The SCA reiterates 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
69
priorities and activities. Further the NHRI ought to be provided with adequate funding
for its operations and ensures that the Commission retains adequate discretionary
funding to independently set its own program of work. In particular, adequate funding
should, to a reasonable degree, ensure the gradual and progressive realization of
improvement in the NHRI’s operations and the fulfilment of its mandate.
Provision of adequate funding by the State should, at a minimum, include the fol owing:
a)The al ocation of funds for premises which are accessible to the wide community,
including for persons, including for persons with disabilities. In certain circumstances, in
order to promote independence and accessibility, this may require that offices are not co-
located with government agencies. Where possible, accessibility should be further
enhanced by establishing a permanent regional presence; b)Salaries and benefits
awarded to staff comparable to those of civil servants performing similar tasks in
other independent institutions of the State; c)Remuneration of members of the decision-
making body (where appropriate); d)The establishment of a wel -functioning
communications system including telephone and internet; and e)The allocation of a
sufficient amount of resources for mandated activities.
Where the NHRI has been designated with additional responsibilities by the State,
additional financial resources should be provided to enable it to assume the
responsibilities of discharging these functions. The SCA encourages the AHRC to continue to
advocate for an appropriate level of funding to carry out its mandate including, where
appropriate, the establishment of regional offices.
The SCA refers to Paris Principle B.2 and to its General Observations 1.10 on ‘Adequate
funding’ and 2.8 on ‘Administrative regulation’.
The SCA further notes:
4.Limitation on mandate
The current definition of human rights in the Act does not explicitly refer to either
the Convention against Torture or the International Covenant on Economic, Social and
Cultural rights. The SCA acknowledges that the AHRC interprets its mandate to
encompass all human rights. The Paris Principles require that an NHRI must be
legislatively mandated for both the promotion and protection of al human rights.
The SCA urges the AHRC to continue advocating for amendment of the definition of ‘human
rights’ within the AHRC Act to include the seven core human rights treaties ratified
by Australia (matching the definition used by the Parliamentary Joint Committee on
Human Rights).
The SCA refers to Paris Principles A.1, A.2 and A.3 and to its General Observation 1.2 and 2.7
on ‘Human rights mandate.’
5.Tenure
70
The SCA notes the provisions of sections 37 of the AHRC Act, 97 of the Sex Discrimination
Act, 114 of the Disability Discrimination Act, 30 of the Racial Discrimination Act and 53 B of
the Age Discrimination Act, which each provide that members can be appointed for a
term not exceeding seven years and that they are eligible for re-appointment, with no limit
on the number of times re-appointment can occur.
As a proven practice, the SCA encourages that a term of between three (3) and seven
(7) years with the option to renew once be provided for in an NHRI’s enabling law. The SCA
refers to Paris Principle B.3 and to its General Observation 2.1 ‘Guarantee of tenure for
members of the National Human Rights Institution decision-making body’.
72
National Institution Fellow
National Institutions and Regional Mechanisms Section (NIRMS)
Field Operations and Technical Cooperation Division (FOTCD)
Office of the United Nations High Commissioner for Human Rights (OHCHR)
E-mail:
@un.org
Web: www.ohchr.org
75
Section 10 of the Act sets out the Commission’s duties, including to perform its functions with regard
to the indivisibility and universality of rights, while section 11 of the Act sets out the Commission’s
functions. They are exercised independent of government, and there is no oversight or approval
required. When exercising functions under section 11 of the Act to make an examination or hold an
inquiry, section 14 of the Act states that the Commission should do so
in such manner as it thinks fit. Section 29(1) of the Public Governance, Performance, and Accountability Act (PGPA Act) requires
officials of the AHRC to disclose material personal interest that relates to AHRC affairs. Under section
41(2)(e) of the Act, failure, without reasonable excuse, of a member of AHRC to comply with this
requirement is a ground for termination of their appointment.
Immunity
Section 48 of the Act provides that the AHRC, its members, and any person acting for or on behalf of
AHRC or its members are not liable to an action or other proceeding for damages for an act or
omission, done in good faith, in exercise of AHRC powers or functions.
IoC: The Act itself does not explicitly provide for the independence of the AHRC
, however the
AHRC’s independence is established by the fact that it is a corporate Commonwealth entity under the
PGPA Act
. The Act does expressly identify that the AHRC is a body corporate.
.
3. Composition, appointment process, tenure
3.1 Composition
According to section 8 of the Act, the AHRC consists of a President and seven Commissioners,
namely Human Rights Commissioner, Race Discrimination Commissioner, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Sex Discrimination Commissioner, Age Discrimination
Commissioner, Disability Discrimination Commissioner, and National Children’s Commissioner.
Per the SoC, Aas of September November 2021, the AHRC members included five six women, one
Indigenous Australian who has extensive experience in indigenous affairs, one with lived experience
of disability, and one from a culturally diverse background. The SoC also states that Commissioners
have been selected from different backgrounds, including academics, former parliamentarians, Chief
Executive Officers of non-government organizations and research institutes, and former
commissioners of state-level human rights commissions.
3.2
Selection and appointment
The President and Commissioners are appointed by the Governor-General, in accordance with
procedures for all statutory appointments and judicial officers. This isas provided in sections 8A
(President), 8B (Human Rights Commissioner), 46B (Aboriginal and Torres Strait Islander Social
Justice Commissioner), 46MC (National Children’s Commissioner) of the Act, section 96 of the Sex
Discrimination Act (Sex Discrimination Commissioner), section 29 of the Racial Discrimination Act
(Race Discrimination Commissioner), section 113 of Disability Discrimination Act (Disability
Discrimination Commissioner) and section 53A of the Age Discrimination Act (Age Discrimination
Commissioner). No one may be appointed Commissioner unless the Minister (Attorney-General) is
satisfied that the candidate has the appropriate qualifications, knowledge or experience.
The Governor-General is Australia’s Head of State as the Queen’s representative, a position that is
largely ceremonial. However, the Governor-General also undertakes constitutional duties, and is
responsible for confirming all statutory appointments to the AHRC under the Act. The Governor-
Australian Human Rights Commission
March 2022
3
76
General usually does so on the advice of the Executive Council, a body established under the
Australian Constitution.
Per the SoC, the selection process for these appointments is overseen by the Attorney-General. The
process is guided by the Australian Public Service Commission’s
Government’s Merit and
Transparency Policy (APSC Guidelines), which applies to all statutory appointments, and the
appointment of all government agency heads.Per the SoC, the selection process is administered by
the Australian Public Service Commission (APSC) using a merit based assessment policy and
guidelines, which apply across all government appointment processes. The APSC guidelines cover:
the advertisement of vacancies; the assessment of applicants by the an assessment panel consisting
of the Secretary of the Attorney General’s Department (AGD) and the APSC and against a core set of
selection criteria which is supplemented by additional criteria agreed by the Minister (Attorney-
General) and the AGD Secretary; and endorsement of shortlisted candidates by the AGD Secretary to
the Attorney-General. The assessment panel for AHRC Commissioner appointments consists of the
Secretary of the Attorney-General’s Department, a representative of the Australian Public Service
Commissioner, the Commission’s President, and one or more additional panel members as needed to
maintain or establish gender balance or provide specialist expertise.
The Attorney-General makes the final recommendation of appointment to the Prime Minister and
Cabinet and then seeks the Governor-General’s approval as required by laws. Where the Attorney-
General considers that a full selection process is inappropriatenot required, the Attorney-General
must request the Prime Minister’s approval to fill a position without a full selection process.
IoC: The Attorney-General may unilaterally propose a candidate that did not go through the merit-
based selection process by the APSC as in the case of the appointments of the Disability
Discrimination Commissioner in 2019 and the Human Rights Commissioner in 2021
.
The Commission notes that the Government has asserted that it did apply the merit-based selection
process as laid out by the APSC which allows for exceptional circumstances. In the case of the
Disability Commissioner, the Government had conducted a broad consultation process about
statutory appointments to the Royal Commission into Disability, and then appointed the then Disability
Discrimination Commissioner to this Royal Commission. The newly appointed Disability Discrimination
Commissioner was not separately advertised, but was considered as part of this broader selection
process. The exceptional circumstance for not conducting a separate process was to ensure that the
Commission was able to fully participate, as an NHRI, in the periodic review of Australia by the
Committee on the Rights of Persons with Disabilities which was scheduled within months of the
appointment.
IoC: The Act is silent on measures to promote broad consultation and/or participation in the selection
and appointment process
.
IoC: An article published on 9 September 2021 on the website theconversation.com pointed out that
the “handpicked appointment of a new human rights commissioner… threatens to undermine the
independence and legitimacy of the [AHRC]” as it was not the “result of an open and competitive
process.”
Please refer to the Australian Human Rights Commission’s submission to the GANHRI Secretariat on
22 February 2022, titled “Response to The Conversation article: “Australia’s ‘A’ rating on human rights
is under threat with a handpicked, politically engineered commissioner” for a detailed response to this
Issue of Concern.
Australian Human Rights Commission
March 2022
4
77
IoC: The Act is silent on the relevant criteria for appointment as President
. However, the appointment
is regulated by the Australian Public Service Commission’s Government’s Merit and Transparency
Policy.
Please see section
2.6.1 Selection criteria, under
“Agency head selection criteria”. This section lists
the core criteria for agency head positions as, inter alia:
Demonstrates high level leadership and vision
Manages large and/or complex operations
Works with others to meet objectives
High level of judgement
Demonstrates a high standard of professional and personal integrity and capacity to promote
these in an organisation.
3.3 Tenure
According to section 37 of the Act, members hold office for such period, not exceeding seven years,
as is specified in the appointment instrument, but are eligible for re-appointment. Per the SoC,
usually, initial appointments are for a five-year term.
Except for the Human Rights Commissioner, the National Children’s Commissioner and Age
Discrimination Commissioner who must be full-time, members may be full or part-time as agreed on
appointment.
Members are remunerated as Statutory Office Holders under a formal determination by the
independent Remuneration Tribunal. Salaries and allowances are reviewed by the Remuneration
Tribunal on an annual basis.
According to sSection 31 41 of the Act, enables the Governor-General may to terminate the
appointment of a member for reasons such as incapacity, misbehavior, absence from duty or
bankruptcy, and disability that renders the member incapable of performing the inherent requirements
of the office.
IoC: There is no limitation on the number of times members may be re-appointed
.
IoC: While the grounds for the appointing authority, i.e. the Governor-General, terminating a statutory
office holder’s appointment dismissal are provided in the Act, the process of dismissal termination is
not further described within the Act. The Governor-General’s power to terminate an appointed office
holder under section 41 of the Act has never been exercised.
IoC: The President and Commissioners may be removed from office by the appointing authority, i.e.,
the Governor-General, and not by an independent body or authority. The Governor-General usually
acts on the advice of the Executive Council, a body established under the Australian Constitution.
4. Organizational infrastructure
4.1 Infrastructure
Per the SoC and organizational chart, the President and Commissioners are supported by a Senior
Executive Group comprising: Chief Executive, Senior Executive for Investigation and Conciliation
Services, Senior Policy Executive for Human Rights and Strategy, Senior Policy Executive for
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Partnerships and International Engagement, General Counsel, Director for Public Engagement, Chief
Financeial Officer, Chief Information Officer, and Director for Human Resources.
4.2 Staffing
AHRC staff are recruited in accordance with section 22 of the Public Service Act 1999 and section 43
of the Act, through a standard Australian Public Service merit-based selection process. Per the SoC,
the AHRC recruits independently its staff, subsequent to the advertisement of vacancies. In addition
to Australian Public Service regulations, appointments must also comply with the AHRC Staff
Selection Guidelines.
Per the SoC, the AHRC has currently at 6 October 2021, the AHRC had a total of 181 staff members,
with 2 positions filled by secondees from government agencies. There are no secondees in the senior
positions of AHRC.
Per the SoC, the AHRC has a Workplace Diversity Program, which provides proactive strategies for
building a diverse workforce. As reported in its 2016-2020 Workforce Profile Statistics, the AHRC
exceeded most Australian Public Service targets for the employment of women (79.6% of AHRC staff
are women in 2021), Aboriginal and Torres Strait Islander people (3.3% of staff in 2021), persons with
disabilities (5% of staff in 2021), and people of culturally and linguistically diverse backgrounds
(31.5% of staff in 2021).
4.3 Premises
(accessibility)
AHRC is located in an office space in the central business district of Australia’s largest city, Sydney.
Per the SoC, the office space complies with accessibility standards and is easily accessible to the
public via public transportation. Since the COVID pandemic, staff have largely worked from home,
with some staff and Commissioners located in other states.
AHRC does not have regional or local offices. However, per the SoC, it maintains an extensive
website and communicates with the public through electronic means. It has a National Information
Service that can be contacted for free by phone, email, fax, or through online inquiry.
Teleconferencing and videoconferencing, with reasonable adjustments for persons with disability and
people of non-English speaking background, are utilized for conciliation and investigative work. The
AHRC also provides sign language interpreters and captioning services for certain events.
4.4 Budget
Section 44A(1) of the Act provides that there is payable to AHRC such money as is appropriated by
the Parliament for the purposes of AHRC.
Per the SoC, the AHRC budget includes funds annually appropriated through the federal government
budget along with externally sourced funding (or funds earned through fee for service arrangements
and the provision of services with other government agencies). The AHRC falls within the Attorney-
General’s portfolio for government financial and administrative purposes. Discussion about the levels
and use of funding may be held between AHRC senior officials and the Attorney-General’s
Department. The AHRC President can liaise directly with the Attorney-General in relation to these
matters.
Per the SoC, the AHRC President is responsible for approving the AHRC budget allocations and the
AHRC has full control over the management and expenditure of its allocated budget.
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The SoC indicates that the AHRC received a budget of $19.026 million for the 2021-22 financial year.
This appropriation included specific funding for a major project, the review of Commonwealth
Parliamentary workplaces. Funding generally available to the Commission outside this project was
approximately $16.5million.
The AHRC does not receive donor funds. It does perform fee for service activities and enter into
partnership with third party entities. This funding currently comprises approximately 23% of the total
budget of AHRC. The AHRC’s independence in exercising its statutory functions are reinforced in
contractual terms for all partnership arrangements, or any agreement to perform a fee for service
activity.
IoC: The Act is silent on how the budget is developed.
In accordance with the Paris Principles requirements for a separate budget allocation, the
Commission is provided a budget each year through the federal budget process. The Commission’s
budget is developed in accordance with processes that apply across the whole of government, and
the PGPA Act sets out requirements regarding how it must be managed. This includes:
The Commission may submit proposals for funding to the government annually
The Commission’s budget is subject to analysis and review through the Senate of federal
Parliament, through the Senate Estimates process
The Commission is required to prepare a Portfolio Budget Statement, setting out its agreed
budget and outcomes, and is required to report on these annually through an Annual Report
and Annual Performance Statement
The Commission’s finances must be audited annually.
This process provides independently verified and independently provided reporting on the
Commission’s budget.
IoC: Section 44A(2) of the Act provides that “[t]he Finance Minister may give directions about the
amounts in which, and the times at which, money payable [to the AHRC as appropriated by the
Parliament] is to be paid to the [AHRC]”. This may be interpreted as allowing the Finance Minister to
withhold the regular release of funding to the AHRC, which may adversely impact the performance of
its functions.
IoC: Per the SoC, the AHRC has expressed concern about the sustainability of its funding base over
many years. In 2021, the AHRC has identified that it is now facing significant financial challenges that
affect its financial viability and that at this stage, it is not clear whether the AHRC can perform its
statutory duties functions within the allocated funding, as it is insufficient to retain the necessary staff
to undertake its functions. The Commission will provide a specific update on budget issues
immediately prior to the accreditation session, as there are developments from negotiations with
Government in addressing this. To date, the Government has provided an additional $16 million to the
Commission for 2021-22 with consideration of further funding into the next financial year still
underway.
5. Working methods
Section 46AA of the Act requires the AHRC to take into consideration the corporate plan prepared by
the AHRC President under section 35 of the PGPA Act. The AHRC Corporate Plan for the period
2021-22 to 2024-25 sets out four organizational goals with eight outcomes and provides the
workplans by the President and each Commissioner.
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5.1 Regular
meetings
Per the SoC, the President, Commissioners and Chief Executive meet formally every 3 months. The
President and Commissioners also have informal meetings every fortnight and other formal meetings
as required. AHRC staff meet regularly in small management groups and policy teams. Meetings
involving all staff and Commissioners are convened, when necessary, four to five times a year.
5.2
Working groups
Per the SoC, the AHRC has: a Diversity Committee; a Work, Health and Safety Committee; a
Pandemic Planning Team for organizational issues associated with working through the COVID-19
pandemic; a cross-functional Steering Group to consider the AHRC procurement in relation to modern
slavery risks; a Budget Steering Committee; and a Projects Review Committee.
As deemed necessary, informal working groups of staff are established to support key projects.
GENERAL MANDATE
6. General competence and responsibilities
6.1
Mandate to promote and protect human rights
Section 3(1) of the Act defines human rights as rights and freedoms recognized or declared in the
ICCPR, Declaration of the Rights of the Child, Declaration on the Rights of Mentally Retarded
Persons, and Declaration on the Rights of Disabled Persons, or any relevant international instrument.
Pursuant to section 47 of the Act, the relevant international instruments are CRC, CRPD, Convention
Concerning Discrimination in Respect of Employment and Occupation, and Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The AHRC
mandate to protect and promote rights under CERD and CEDAW are provided under the Racial
Discrimination Act and the Sex Discrimination Act.
Per the SoC, the AHRC continues to advocate for the inclusion of CAT and ICESCR in the definition
of human rights in the Act while also regularly working towards the protection and promotion of human
rights covered in both instruments.
Section 11(3) of the Act provides that the AHRC cannot inquire into an act or practice of an
intelligence agency. Complaints in this regard shall be referred to the Inspector-General of
Intelligence and Security.
IoC: The definition of human rights in the Act does not explicitly refer to CAT and ICESCR.
IoC: Per Section 11(3) of the Act, the AHRC does not have power to inquire into any act
or practice
by an intelligence agency that may be inconsistent with or contrary to any human right. The
Commission does, however, regularly engage in proposed legislative reforms relating to national
security and other activities of intelligence agencies.
6.2 Advisory
Functions
6.2.1 Functions regarding national legislation
Sections 11(1)(e, j, and k) and 31(a, e, and f) of the Act vest the AHRC with the function to examine,
on its own motion or when requested by the Attorney-General, any enactment or proposed enactment
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