Early last month, federal Attorney-General Michaelia Cash appointed Lorraine Finlay as Australia's Human Rights Commissioner. Replacing Edward Santow, Ms Finlay starts her five-year term in November. Her appointment, however, has received considerable criticism both for its lack of transparency and for Ms Finlay's stated views, some of which seem at odds with the work of the Australian Human Rights Commission.
In a statement defending her decision, Senator Cash argued that Ms Finlay will serve well in this role, protecting and promoting "traditional rights and freedoms in Australia". Yet not everyone shares such optimism - particularly human rights groups. In recent years, Ms Finlay has been vocal on certain issues, like opposing affirmative sexual consent laws and criticising Section 18C of the Racial Discrimination Act. LGBTQIA+ advocates worry that her appointment will wind back equal rights gains of recent years, pointing to Ms Finlay's co-authored submission to the Ruddock religious freedom inquiry in 2018 which argued that "religious freedom in Australia is treated as a 'secondary' right that is not given equal weight with other human rights, in particular equality rights".
Ms Finlay appears to be an odd choice not just for her views but also given her experience. She is currently a law lecturer at Murdoch University, with previous experience as a senior human trafficking specialist with the Australian Mission to the Association of Southeast Asian Nations, as a lawyer with the WA Director of Public Prosecutions and as an associate to former High Court judge Dyson Heydon for two years, though prior to the surfacing of Heydon's sexual harassment allegations. As the appointment process was neither transparent nor advertised, this leads me to ask: while she is no doubt very capable, is Ms Finlay really the best candidate for one of the most important legal positions in Australia?
The Liberal Party have a history of talking about "merit", especially when it comes to gender quotas. When pressed on the lack of women in his cabinet, former prime minister Tony Abbott argued that, "in the end, all our appointments are on merit", while current prime minister Scott Morrison previously noted that he wants to see more women in Parliament based "on merit, that's the key". But when it comes to appointments, the lack of transparency means it is hard to tell what role merit played in this case.
The choice of Ms Finlay looks particularly questionable when you delve into her historical ties to the Liberal Party. In 2002, while an undergraduate at the University of Western Australia, Ms Finlay served as president of the Australian Young Liberal Students Federation. She later served as president of the WA Liberals Women's Council 2011-2018. She unsuccessfully ran for the Liberals as an upper house candidate in the 2017 WA election. As Peter Mares argued in his June 2021 Inside Story essay, we do not live in a meritocracy, despite our continuing faith in this myth, as "connections and pedigree still open doors, and the lottery of birth remains a powerful predictor of future prospects". In this case, connections to the Liberal Party may well be a powerful predictor of appointment prospects.
It is therefore unsurprising that the appointment has received widespread criticism, including a letter signed by more than 80 human rights experts, for "undermining the commission's legitimacy and independence". A transparent and open appointment process is necessary for an independent AHRC because, as law professor and director of the Human Rights Institute at UNSW Justine Nolan argues, "if we can't appoint a human rights commissioner in a fair and transparent way, then what does that say about human rights in this country?" Hugh de Kretser, Human Rights Law Centre executive director, suggests a "best appointment model" that includes publicising vacancies to ensure you attract a diverse crop of talent assessed "on the basis of pre-determined, objective and publicly available criteria". Ironically, the AHRC even has a "step-by-step guide to preventing discrimination in recruitment" on its website - perhaps the government could take note of this next time.
This is not the first time the current government has handpicked an appointment - in fact it has a history of it. Notoriously, the Abbott government's appointment of Tim Wilson as commissioner in 2013 - a former Institute of Public Affairs policy director and vocal critic of the AHRC - drew heavy criticism from the Global Alliance of National Human Rights Institutions for failing to follow a merit-based process. As a direct consequence, successive appointments were made through competitive processes until the 2019 appointment of Ben Gauntlett as the disability commissioner, and now Ms Finlay.
It is crucial that the AHRC, and its commissioners, remain independent from the government to hold them to account. In fact, this is a requirement set out in the Paris Principles for national human rights institutions adopted by the UNHRC in 1992 and the UN General Assembly in 1993. Yet how can a commissioner remain independent when she has long ties to the Liberal Party and was parachuted into the position? For failing to adhere to the Paris Principles, Australia's "A status", accredited by the GANHRI, is now at risk.
Serving as the "watchdog" for human rights in Australia is a highly-paid, highly visible, and powerful position. As such, there must be robust and transparent guidelines to ensure that appointments are made on merit rather than connections. In the middle of a pandemic, as we face increasing levels of far-right extremism, racism, sexism, and impending climate catastrophe, it is crucial that our human rights commission is strong, independent, and trustworthy.
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