Choices must be seen to be unbiased

Choices must be seen to be unbiased

This article was first published by The Australian.

With three more appointments to the Australian Human Rights Commission due in the next 12 months, there's a pressing need to adopt a selection process that avoids accusations of political bias.

For the best model, the government needs to look to the internationally agreed standards that it promotes overseas.

Attorney-General George Brandis was right when he said that appointees to the commission "must be people who can command the confidence of the entire community that they will discharge their responsibilities in the human rights field in a non-partisan manner".

Yet the way he appointed Institute of Public Affairs policy director and Liberal Party member Tim Wilson as the new Human Rights Commissioner did nothing to encourage this confidence.

The primary issue is not whether Wilson's background qualifies him for the job, but how Brandis came to this conclusion.

Instead of a normal, open recruitment process to invite and assess applications, Brandis reportedly hand-picked Wilson for the job without consulting the commission.

The internationally agreed standards on national human rights institutions, known in shorthand as the Paris Principles, are the test for the credibility and legitimacy of the 100-plus national human rights institutions around the world.

They mandate that institutions such as the commission be independent of government, broadly representative of society and adequately funded.

The guidelines highlight the importance of a clear, transparent and participatory appointment process for the institution's decision-making body.

This is meant to involve publicising vacancies to maximise the number of potential candidates, broad consultation and assessing candidates on the basis of pre-determined, objective and publicly available criteria.

The guidelines recognise that a process promoting merit-based selection is necessary to ensure independence, effectiveness and public confidence in the senior leadership of the institution. The guidelines go as far as requiring the appointment process to be under the control of an independent, credible body.

In other words, the guidelines advise doing the exact opposite of what Brandis did in appointing Wilson.

Wilson may do a fine job as Human Rights Commissioner. Indeed, his strong support for same-sex marriage and his principled criticism of Queensland bikie laws are welcome and he will certainly bring a fresh perspective. But the manner of his appointment hasn't helped him, the attorney or the commission.

Wilson himself didn't help things when, in response to his announcement, he said he was "looking forward to advancing the government's freedom agenda".

The job of the Human Rights Commissioner is not to advance government policy but rather to advance the independent statutory objectives of the human rights watchdog. As Brandis recognises, "all members of the Human Rights Commission should act in a non-partisan way; their obligation is to uphold human rights, not the views of a political party".

The commission is an important, independent national institution that helps to ensure that human rights are understood and respected in Australia.

It receives and mediates about 2000 discrimination and human rights complaints each year, undertakes public education and conducts major inquiries into human rights issues of national significance, such as the Stolen Generations - work that led to the national apology in 2008.

There is nothing wrong with governments appointing party members or former staffers to the commission, provided there is a proper, merit-based selection process to ensure they are the best person for the job.

Last July, then attorney-general Mark Dreyfus appointed former Labor staffer, academic and commentator Tim Soutphommasane as Race Discrimination Commissioner. In contrast to Wilson's appointment, Soutphommasane was selected after an open, public application process conducted by an external recruiter, consultation with civil society on possible candidates and a selection panel involving representatives from the commission, the department and the Public Service Commission.

Despite this, Brandis still criticised the appointment, saying Soutphmomasane was an "overt partisan of the Labor Party" who would "not be able to win the public's confidence".

The fact that even this process attracted criticism underscores the need for a new, truly independent model to move beyond the political accusations that are distracting attention from the important work of the commission.

On the international stage, Australia has been a leader in promoting the Paris Principles, driving UN resolutions affirming the importance of strong, independent human rights institutions.

Australia has advocated for vigilant and rigorous assessments under the international accreditation process that determines a national institution's compliance with the principles.

We need to start doing at home what we advocate abroad.

Brandis has already flagged reforms to the commission this year, including the formal establishment of a freedom commissioner. This provides the perfect opportunity to adopt a legislated appointment process that guarantees the independence and public confidence in the commission that he recognises is so vital.

Hugh de Kretser is the executive director of the Human Rights Law Centre @hughdekretser