After a decade in which the Coalition has attempted to undermine and abolish the Human Rights Commission, the body is almost broke and facing international sanctions. By Mike Seccombe.
The plot to destroy the Human Rights Commission
For most of the past decade, the current government has sought in various ways to undermine the Australian Human Rights Commission, through politicised appointments, constrained funding and overt hostility to its activities. Suddenly, that meddling is producing consequences.
Internationally, the commission is being threatened with the humiliating downgrading of its status, potentially being relegated to observer status at the United Nations. Domestically, its finances have never been in worse shape, a consequence of continual budget cuts and financial mismanagement.
The commission has lost its prestige and is basically broke.
For years, most obviously during Gillian Triggs’s five-year tenure as president, the government and the Murdoch press have mounted a strident campaign against Australia’s peak human rights body. The Australian alone ran hundreds of pieces targeting Triggs over her inquiry into children in immigration detention.
At the end of her term, Triggs declared the government “ideologically opposed to human rights”.
It was a sweeping statement and not entirely true. Triggs might more accurately have accused the government of being hostile to scrutiny and accountability of its actions, particularly from organisations that take government funding.
While this is true to some extent of all governments, the current one has proved exceptionally keen to silence critics. It has done so through three main methods: abolition, as in the case of the Climate Commission; cutting funding, as with the ABC and the Australian National Audit Office; or by stacking the body with partisan appointees, as with the Administrative Appeals Tribunal.
The government has tried versions of each with the Human Rights Commission. Most effectively, it replaced Triggs with Rosalind Croucher, a publicity-averse and comfortingly conservative lawyer. Her office decor, by way of example, includes figurines of Margaret Thatcher and the royal family.
Tim Soutphommasane, who sat as a commissioner under both presidents, puts it like this: “In recent years, it does feel like the commission has withdrawn itself from public view.”
Under this government, the commission has degenerated into an internally riven, demoralised organisation. It has run deficits for years and would have effectively been insolvent but for a recent $16 million bailout, which will still not be enough to halt major staff cuts.
Last week, following a five-yearly assessment by the Global Alliance of National Human Rights Institutions, the Australian Human Rights Commission was not reaccredited as an A-status national human rights institution. It was warned that unless the process of appointing commissioners was reformed, it would be downgraded to “B” status, and downgraded to observer status at the UN Human Rights Council.
“It’s a little arcane for those who aren’t in the field,” says Soutphommasane, “but having that ‘A’ accreditation withdrawn would be a big blow to the commission. This is like relegation from the Premier League.
“The status also means the loss of Australian soft diplomatic capability. And it has been disastrous for internal morale.
“It’s very sad to see this. Anyone who’s a friend of human rights doesn’t want the commission to be in the position that it’s in. There’s a perfect storm of internal troubles and political mendacity.”
Appearing before a senate legal and constitutional affairs committee hearing last week, Croucher expressed the internal troubles like this: “The overexpenditure on employee expenses is the key issue. That is, we spent more on staff than we had. That led to a running down of the cash…”
Core staff was 101.7 full-time equivalent positions, she said. But she now understood “we cannot afford 101; we can only afford 76”.
This explained the years of deficits and the need for a $16 million emergency equity injection, of which $2 million would go towards funding redundancies.
Government senators showed Croucher no mercy. The committee chair, Liberal Sarah Henderson, made it very personal. She noted that Croucher received a salary of almost $500,000.
“I’m very surprised that someone of your seniority does not have these skills to oversee the commission’s operations, under circumstances where you have now gotten yourself into a crisis of financial mismanagement.”
Henderson repeatedly said she found the magnitude of the mismanagement “shocking”.
Liberal Senator Paul Scarr took Croucher to page 85 of the Human Rights Commission’s annual report, where the damning findings of a review last October by the Australian National Audit Office was buried. The auditor noted that “material uncertainty exists that may cast significant doubt on the commission’s ability to continue as a going concern”.
Having read the audit office’s words to Croucher, Scarr went on to tell her what they meant: “in a listed public company environment, that’s a company killer.”
Attorney-General Michaelia Cash, who is the relevant minister, appeared with Croucher but made no effort to protect her. Indeed, she was eager that the committee members should “understand that Professor Croucher has said she takes full responsibility” for the financial mess.
It was painful to see the savage way the government turned on Croucher. Back when she was appointed, they were so keen to have her that they signed her up for seven years instead of the usual five.
And while the immediate blame for the blowout attaches to Croucher, some might also attach to the government. As she said: “we are funded insufficiently to do the full range of functions”. Croucher explained that the commission as it is currently funded can “discharge our functions to a very minimal level”.
To properly carry out its core function of handling complaints, she said, would require twice the staff. “Some may say, ‘Well, just let the backlog blow out.’ But, with respect, I don’t think that’s an answer at all.”
The commission’s annual report detailed the magnitude of the problem: complaints were up 35 per cent over the year and projected to increase further. During the initial phase of the pandemic, most matters related to race discrimination, then later to disability discrimination and human rights complaints relating to masks and border closures.
As to the second big issue – international accreditation – Croucher bears no responsibility. She is not responsible for the selection of commissioners, the government is. And a number of those have been very clearly politicised.
The most glaring example was the appointment of Tim Wilson as so-called freedom commissioner without any proper selection process. Before his 2014 appointment to the commission, Wilson worked for six years at the right-wing Institute of Public Affairs, which had campaigned for the Human Rights Commission to be abolished. He is now a government MP.
As a human rights commissioner, Wilson spoke strongly against “socialist” notions of freedom, focusing on a number of what he called “forgotten freedoms”. On property rights, he criticised laws preventing landholders from clearing native vegetation. In relation to freedom of expression, he advocated watering down the Racial Discrimination Act. On freedom of association, he took issue with Queensland’s anti-bikie laws. He also championed freedom of religion, although it should be noted that unlike some others on the political right, he advocated against discrimination on the basis of sexual orientation or transgender status.
Two more recent appointments to the HRC also were made without proper selection process. They are Ben Gauntlett, appointed disability discrimination commissioner in May 2019, and Lorraine Finlay, appointed human rights commissioner last November.
The general consensus among former commissioners and human rights advocates is that Gauntlett was a worthy appointment. He is a well-regarded barrister, a former associate of Justice Kenneth Hayne on the High Court and counsel assisting the Commonwealth solicitor-general. He is a quadriplegic as a result of a football injury and has a record of activity in disability circles.
Given this background, in the view of well-informed observers, it is likely he would have been appointed through an independent, merits-based selection process. Instead, though, he was a captain’s pick by former attorney-general Christian Porter. Both men were part of the small, tight-knit legal establishment of Western Australia.
Finlay, however, is a much more controversial appointment. As one former commissioner puts it, “she has been up to her ears in partisan politics”.
She, too, is a Western Australian lawyer, as is Porter’s successor as attorney-general, Michaelia Cash. Reportedly, the two women are close friends. Certainly, they are close associates through their party activities. Finlay was a WA Liberal Party Women’s Council president and an unsuccessful candidate for the upper house in the 2017 WA election.
Like Gauntlett and Wilson, she was appointed without any independent selection process. Also like Gauntlett, Finlay is legally well credentialled, with a CV that includes a stint as an associate to a High Court justice, the now-disgraced arch conservative Dyson Heydon.
Like Wilson, she came with the backing of the IPA, which lauded her positions on property rights and freedom of speech. She argued for a weakening of the Racial Discrimination Act and appeared in an IPA ad opposing an Indigenous Voice to Parliament. Like Wilson, she championed religious freedom legislation.
Whereas he is a right-wing libertarian, though, she is a social conservative, particularly on matters of gender and sexuality. Finlay has publicly opposed affirmative consent laws, which require active steps to be taken to gain consent before sex.
Her appointment was condemned by Grace Tame as a “grave, grave mistake” and a backwards step for women’s rights. A long line of other progressive groups engaged in advocacy for the rights of women and queer people – as well as the Labor opposition – also were critical.
To date, Finlay, like Croucher, and like a number of other recent appointments to the commission, has maintained a very low public profile and made no comments embarrassing to the government. No doubt, then, Cash considers the $400,000 per annum, five-year appointment money well spent.
As far as the international accreditation agency is concerned, the political pedigrees of commissioners are not the issue. The issue is that there should be a rigorous independent process for making appointments.
But the two issues are related. Clearly the reason the government did not subject them to due process is that it wanted to parachute people with acceptable views into the jobs.
And now this has cost Australia enormously in terms of international soft power and influence in global human rights circles, says Chris Sidoti, a former commissioner and an international expert on human rights institutions who has worked with the UN on the establishment of such institutions.
“Right back, since the early 1990s, the international promotion of national human rights institutions has been one of the three or four key planks of Australian international human rights policy,” he says.
“And over the last eight years, I’d go so far as to say it has been the sole plank of Australian international human rights policy. Australia has been the lead country in UN resolutions supporting national human rights institutions. So if Australia’s institution were to be downgraded, or even now being put on notice, it pulls the rug out from under a central part of Australia’s human rights diplomacy.
“There’s a very real question about whether Australia is able to continue to play a lead role in UN forums … when its own institution has been found to be below the mark.”
The big lesson here is to be careful what you wish for. The government wished to tame a commission that pointed out its shortcomings on human rights. Instead, it has succeeded only in further pointing out its own shortcomings on human rights.
This article was first published in the print edition of The Saturday Paper on April 16, 2022 as "The plot to destroy the Human Rights Commission".
A free press is one you pay for. Now is the time to subscribe.
Letters & Editorial