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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN HUMAN RIGHTS COMMISSION LEGISLATION AMENDMENT
(SELECTION AND APPOINTMENT) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus QC MP)
AUSTRALIAN HUMAN RIGHTS COMMISSION LEGISLATION AMENDMENT
(SELECTION AND APPOINTMENT) BILL 2022
GENERAL OUTLINE
Purpose and objective
1. The Australian Human Rights Commission Legislation Amendment (Selection and
Appointment) Bill 2022 amends the Australian Human Rights Commission Act 1986,
Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination
Act 1975 and the Sex Discrimination Act 1984 to codify a merit-based and transparent
selection and appointment process for members of the Australian Human Rights Commission
(the Commission).
2. This Bill will ensure that statutory appointments to the Commission are made through
a merit-based and transparent selection process that is consistent with the United Nations
General Assembly Principles relating to the Status of National Institutions, also known as the
Paris Principles.
3. Ensuring that appointments to the Commission are publicly advertised and made in
accordance with merit is essential to the legitimacy and international credibility of the
Commission. Public advertising of appointments ensures these essential positions are open to
all those who are qualified, and will best ensure that the public has confidence that appointees
are representative of their particular communities. In addition, requiring that appointees be
selected through a merit-based and open process maintains the Commission's essential
institutional independence and ensures quality of candidates.
4. These amendments will address the concerns raised by the Global Alliance of
National Human Rights Institutions Sub-Committee on Accreditation in its deferral of the
Commission's re-accreditation as an 'A'-status National Human Rights Institution. The
Sub-Committee on Accreditation raised concerns that appointments to the Commission could
be made without a full selection process, and were not always required to be advertised. The
amendments in this Bill will remove the ability of members of the Commission to be
appointed directly, and will require appointees to be selected as a result of a merit-based and
publicly advertised appointment process.
5. The Bill also responds to other concerns raised by the Sub-Committee on
Accreditation in relation to the tenure of members of the Commission. The Sub-Committee
on Accreditation raised concerns that the relevant Acts left open the possibility of unlimited
tenure for the President and Commissioners. Accordingly, this Bill will codify existing
practice by clarifying that the total term of appointment for members of the Commission
cannot exceed 7 years, including any reappointments.
6. Finally, the Bill will make a minor amendment to harmonise the qualification
provisions for members of the Commission. Whilst legislation currently prescribes
qualification requirements for all Commissioners, there are no qualification requirements to
be appointed as President of the Commission. The Bill will insert a provision requiring the
President have appropriate qualifications, knowledge or experience in order to be appointed,
consistent with existing qualification provisions for the Commissioners.
1
Background
Accreditation of the Australian Human Rights Commission as an 'A'-status National Human
Rights Institution
7. The Commission is Australia's National Human Rights Institution (NHRI).
8. NHRIs are accredited as either 'A'-status or 'B'-status dependent on the extent to
which they comply with the Paris Principles. 'A'-status NHRIs are assessed as fully
compliant with the Paris Principles, and have independent participation rights in
United Nations fora, whereas 'B'-status NHRIs are assessed as not fully complaint with the
Paris Principles and only have observer status. All NHRIs that hold 'A'-status accreditation
are subject to re-accreditation every 5 years. The Commission has been accredited as an
'A'-status NHRI since 1999, when the accreditation of NHRIs began.
9. In March 2022, the Sub-Committee on Accreditation deferred the re-accreditation of
the Commission as an 'A'-status NHRI for 18 months on the basis that the selection and
appointment process for statutory appointees did not fully comply with the Paris Principles.
The Sub-Committee on Accreditation called for Australia to implement a clear, transparent,
merit-based and participatory selection and appointment process, formalised in legislation,
regulations or binding administrative guidelines.
10. The Sub-Committee on Accreditation also referred to the term of office of
Commissioners as being an additional issue relevant to re-accreditation. The Sub-Committee
on Accreditation noted that the Australian Human Rights Commission Act,
Age Discrimination Act, Disability Discrimination Act, Racial Discrimination Act and
Sex Discrimination Act were silent on the number of times a member of the Commission can
be reappointed, which left open the possibility of unlimited tenure.
FINANCIAL IMPACT
11. This Bill will have a minor financial impact on Commonwealth Government
departments and the Commission in order to implement merit-based selection and
appointment processes.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Human Rights Commission Legislation Amendment (Selection and
Appointment) Bill 2022
12. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
13. The Australian Human Rights Commission Legislation Amendment (Selection and
Appointment) Bill 2022 (the Bill) amends the Australian Human Rights Commission
Act 1986, Age Discrimination Act 2004, Disability Discrimination Act 1992,
Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 to codify a merit-based
and transparent selection and appointment process for members of the Australian Human
Rights Commission.
14. The Bill contains measures to:
a. insert provisions to require that a person must not be appointed as a member of
the Commission unless the Minister is satisfied that the selection of a person for
appointment is the result of a merit-based selection process that was publicly
advertised
b. clarify that the total term of appointment and any reappointment for a member of
the Commission must not exceed 7 years, and
c. insert new clauses in the Australian Human Rights Commission Act to require
that a person must not be appointed as the President unless the Minister is
satisfied that the person has appropriate qualifications, knowledge or experience.
Human rights implications
15. This Bill does not engage any of the applicable rights or freedoms.
Conclusion
16. This Bill is compatible with human rights as it does not raise any human rights issues.
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NOTES ON CLAUSES
List of abbreviations
Age Discrimination Act Age Discrimination Act 2004
AHRC Act Australian Human Rights Commission Act 1986
Commission Australian Human Rights Commission
Disability Discrimination Act Disability Discrimination Act 1992
Racial Discrimination Act Racial Discrimination Act 1975
Sex Discrimination Act Sex Discrimination Act 1984
Sub-Committee on Accreditation of Sub-Committee on Accreditation
the Global Alliance of National
Human Rights Institutions
4
Preliminary
Clause 1 Short title
17. This clause provides for the short title of the Act to be the Australian Human Rights
Commission Legislation Amendment (Selection and Appointment) Act 2022.
Clause 2 Commencement
18. This clause provides for the commencement of each provision in the Bill, as set out in
the table at subclause 2(1).
19. Item 1 in the table provides that the whole of this Act will commence on the day after
the Act receives the Royal Assent.
20. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is
not a part of the Act, and information may be inserted in this column, or information in it may
be edited, in any published version of this Act.
Clause 3 Schedules
21. This subsection enables legislation that is specified in a Schedule to this Act to be
amended or repealed as set out in the applicable items in the Schedule concerned, and
specifies that any other item in a Schedule to this Act has effect according to its terms.
5
Schedule 1 - Amendments
Age Discrimination Act 2004
Item 1 Subsection 53A(1) (note)
22. Item 1 repeals the note under subsection 53A(1) and replaces it with a new note which
clarifies that the Age Discrimination Commissioner may be reappointed, in accordance with
section 33AA of the Acts Interpretation Act 1901, subject to new subsection 53B(1A) of the
Age Discrimination Act.
23. Section 33AA of the Acts Interpretation Act provides that if an Act confers on a
person or body a power to make an appointment, the power is taken to include a power of
reappointment. This amendment is consequential to the introduction of a limit on the total
term of appointment for the Age Discrimination Commissioner by Item 4. Accordingly, the
Age Discrimination Commissioner would not be eligible for reappointment if the term of the
reappointment, combined with any previous periods of appointment, would be greater than
7 years.
Item 2 Subsection 53A(2)
24. Item 2 repeals subsection 53A(2) and replaces it with a new subsection which
provides that a person must not be appointed as Age Discrimination Commissioner under
subsection 53A(1) unless the Minister is satisfied that the person has appropriate
qualifications and that the selection process to appoint the person was merit-based and
publicly advertised.
25. New paragraph 53A(2)(a) provides that a person must not be appointed as the
Age Discrimination Commissioner unless the Minister is satisfied that the person has
appropriate qualifications, knowledge or experience. This reflects the existing qualifications
requirements in subsection 53A(2) of the Age Discrimination Act.
26. New paragraph 53A(2)(b) provides that a person must not be appointed as the
Age Discrimination Commissioner unless the Minister is satisfied that the selection of the
person for the appointment is the result of a process that was merit-based and included public
advertising of the position.
27. This amendment will ensure that appointments to the position of Age Discrimination
Commissioner are merit-based and transparent, in response to concerns raised by the
Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as Age Discrimination Commissioner and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
28. New subparagraph 53A(2)(b)(i) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a merit-based selection process. A person
must not be appointed as Age Discrimination Commissioner unless they are found suitable as
a result of such a selection process.
6
29. New subparagraph 53A(2)(b)(ii) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a selection process which included public
advertising of the position. Public advertising includes advertising in the national media, such
as in national or other broad-reaching newspapers, as well as on government websites, as
relevant.
30. New subsection 53A(2) only applies to substantive appointments as the
Age Discrimination Commissioner under subsection 53A(1). It does not apply to acting
appointments under section 53H of the Age Discrimination Act. This reflects the purpose of
providing for acting appointments - that they may need to be made on an urgent or short-term
basis, such as to fill a vacant position whilst a merit selection process is conducted.
31. New subsection 53A(3) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the Age Discrimination
Commissioner. This is because an incumbent Commissioner will already have been assessed
as suitable for appointment through a merit-based and transparent selection process, and
allows flexibility for Commissioners to be reappointed on a short-term basis, such as to
complete existing projects. In accordance with new subsection 53B(1A) introduced by
Item 4, a Commissioner can only be reappointed for a period if the total period of
appointment does not exceed 7 years.
32. This exclusion in new subsection 53A(3) only applies to reappointments of the
Age Discrimination Commissioner where the Commissioner held the office immediately
before the start of the period of reappointment. Accordingly, if a person completed an initial
period of appointment as Age Discrimination Commissioner, and then sought to be appointed
to the position again in future years, the recruitment of that person must be through a merit-
based and publicly advertised selection process in accordance with new paragraph 53A(2)(b).
Item 3 Subsection 53B(1)
33. Item 3 omits reference to the period of appointment of the Age Discrimination
Commissioner not exceeding 7 years from subsection 53B(1). This amendment is
consequential to Item 4, which inserts new subsection 53B(1A) which clarifies that the Age
Discrimination Commissioner cannot be appointed for a period exceeding 7 years.
Item 4 After subsection 53B(1)
34. Item 4 inserts a new subsection to clarify that a person must not be appointed as the
Age Discrimination Commission under section 53A for a total period that exceeds 7 years.
35. Under subsection 53B(1), the Age Discrimination Commissioner holds office for the
period specified in the instrument of appointment, which must not exceed 7 years. This
amendment will limit the total term that a Commissioner may be appointed for, inclusive of
any reappointment, to 7 years. This addresses the concerns raised by the Sub-Committee on
Accreditation that appointment provisions for members of the Commission left open the
possibility of unlimited tenure. This amendment reflects existing practice in appointments,
whereby members of the Commission are typically appointed for a five-year initial term, and
may be reappointed for a one or two-year subsequent term.
7
36. New subsection 53B(1A) provides that a person must not be appointed as the
Age Discrimination Commissioner for a period if the sum of that period, and any periods of
previous appointment as Age Discrimination Commissioner, exceeds 7 years. Accordingly, if
a person has been appointed for an initial term of 5 years as Age Discrimination
Commissioner, that person cannot be reappointed as Age Discrimination Commissioner for a
period of more than two years. Similarly, if a person has been appointed for an initial term of
7 years, that person cannot be reappointed.
37. New paragraph 53B(1A)(b) applies only to previous substantive appointments as
Age Discrimination Commissioner under section 53A. It does not apply to previous acting
appointments as Age Discrimination Commissioner under section 53H of the
Age Discrimination Act. Accordingly, a person's previous periods as acting
Age Discrimination Commissioner are not counted towards the 7-year limit on total tenure.
38. New paragraph 53B(1A)(b) is inclusive of any period of leave the Age Discrimination
Commissioner takes during their appointment. Any period of leave will not affect the length
of a period of appointment which will not exceed 7 years.
Australian Human Rights Commission Act 1986
Item 5 After subsection 8A(1)
39. Item 5 inserts a new subsection which provides that a person must not be appointed as
President of the Commission unless the Minister is satisfied that the person has appropriate
qualifications and that the selection process to appoint the person was merit-based and
publicly advertised.
40. Existing section 8A does not include any qualification requirements for a person to be
appointed as the President, which is inconsistent with the appointment provisions for all other
members of the Commission. New paragraph 8A(1A)(a) provides that a person must not be
appointed as the President unless the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience. This amendment is identical to the existing
qualification requirements for all other Commissioners (except for the Aboriginal and Torres
Strait Islander Social Justice Commissioner), and therefore rectifies this inconsistency.
41. New paragraph 8A(1A)(b) provides that a person must not be appointed as the
President of the Commission unless the Minister is satisfied that the selection of the person
for the appointment is the result of a process that was merit-based and included public
advertising of the position.
42. This amendment will ensure that appointments to the position of the President of the
Commission are merit-based and transparent, in response to concerns raised by the
Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as the President of the Commission and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
43. New subparagraph 8A(1A)(b)(i) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a merit-based selection process. A person
8
must not be appointed as the President of the Commission unless they are found suitable as a
result of such a selection process.
44. New subparagraph 8A(1A)(b)(ii) requires the Minister to be satisfied that the
selection of the person for the appointment is the result of a selection process which included
public advertising of the position. Public advertising includes advertising in the national
media, such as in national or other broad-reaching newspapers, as well as on government
websites, as relevant.
45. New subsection 8A(1B) only applies to substantive appointments as the President of
the Commission under subsection 8A(1). It does not apply to acting appointments under
subsection 36(2) of the Australian Human Rights Commission Act. This reflects the purpose
of providing for acting appointments - that they may need to be made on an urgent or short-
term basis, such as to fill a vacant position whilst a merit selection process is conducted.
46. New subsection 8A(1B) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the President of the
Commission. This is because an incumbent President will already have been assessed as
suitable for appointment through a merit-based and transparent selection process, and allows
flexibility for the President to be reappointed on a short-term basis, such as to complete
existing projects. In accordance with new subsection 37(2) introduced by Item 9, the
President can only be reappointed for a period if the total period of appointment does not
exceed 7 years.
47. This exclusion in new subsection 8A(1B) only applies to reappointments of the
President of the Commission where the President held the office immediately before the start
of the period of reappointment. Accordingly, if a person completed an initial period of
appointment as the President, and then sought to be reappointed in future years, the selection
of that person for reappointment must be through a merit-based and publicly advertised
selection process in accordance with new paragraph 8A(1A)(b).
Item 6 Subsection 8B(2)
48. Item 6 repeals subsection 8B(2) and replaces it with a new subsection which provides
that a person must not be appointed as Human Rights Commissioner under subsection 8B(1)
unless the Minister is satisfied that the person has appropriate qualifications and that the
selection process to appoint the person was merit-based and publicly advertised.
49. New paragraph 8B(2) provides that a person must not be appointed as the
Human Rights Commissioner unless the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience. This reflects the existing qualifications requirements
in subsection 8B(2) of the Australian Human Rights Commission Act.
50. New paragraph 8B(2)(b) provides that a person must not be appointed as the
Human Rights Commissioner unless the Minister is satisfied that the selection of the person
for the appointment is the result of a process that was merit-based and included public
advertising of the position.
51. This amendment will ensure that appointments to the position of Human Rights
Commissioner are merit-based and transparent, in response to concerns raised by the
9
Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as Human Rights Commissioner and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
52. New subparagraph 8B(2)(b)(i) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a merit-based selection process. A person
must not be appointed as Human Rights Commissioner unless they are found suitable as a
result of such a selection process.
53. New subparagraph 8B(2)(b)(ii) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a selection process which included public
advertising of the position. Public advertising includes advertising in the national media, such
as in national or other broad-reaching newspapers, as well as on government websites, as
relevant.
54. New subsection 8B(2) only applies to substantive appointments as the Human Rights
Commissioner under subsection 8B(1). It does not apply to acting appointments under
section 36(3) of the Australian Human Rights Commission Act. This reflects the purpose of
providing for acting appointments - that they may need to be made on an urgent or short-term
basis, such as to fill a vacant position whilst a merit selection process is conducted.
55. New subsection 8B(3) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the Human Rights
Commissioner. This is because an incumbent Commissioner will already have been assessed
as suitable for appointment through a merit-based and transparent selection process, and
allows flexibility for Commissioners to be reappointed on a short-term basis, such as to
complete existing projects. In accordance with new subsection 37(3) introduced by Item 9, a
Commissioner can only be reappointed for a period if the total period of appointment does
not exceed 7 years.
56. This exclusion in new subsection 8B(3) only applies to reappointments of the
Human Rights Commissioner where the Commissioner held the office immediately before
the start of the period of reappointment. Accordingly, if a person completed an initial period
of appointment as Human Rights Commissioner, and then sought to be appointed in future
years, the selection of that person for appointment must be through a merit-based and
publicly advertised selection process in accordance with new paragraph 8B(2)(b).
Item 7 Subsection 37(1)
57. Item 7 inserts a reference to new subsection 37(3) in subsection 37(1).
58. Subsection 37(1) states that an appointed member is eligible for reappointment. This
amendment is consequential to the introduction of a limit on the total term of appointment for
appointed members by Item 9. Accordingly, an appointed member would not be eligible for
reappointment if the term of the reappointment, combined with any previous periods of
appointment, would be greater than 7 years.
10
Item 8 Subsection 37(1)
59. Item 8 omits reference to the period of appointment of an appointed member not
exceeding 7 years from subsection 37(1). This amendment is consequential to Item 9, which
inserts new subsections 37(2) and (3) which clarifies that the President and the Human Rights
Commissioner, respectively, cannot be appointed for a period exceeding 7 years.
Item 9 After subsection 37(1)
60. Item 9 inserts new subsections to clarify that a person must not be appointed as the
President of the Commission or Human Rights Commissioner under section 8A or 8B
respectively, for a total period that exceeds 7 years.
61. Under subsection 37(1), an appointed member holds office for such period, not
exceeding 7 years, as is specified in the instrument of the member's appointment. This
amendment will limit the total term that an appointed member may be appointed for,
inclusive of any reappointment, to 7 years. This addresses the concerns raised by the
Sub-Committee on Accreditation that appointment provisions for members of the
Commission left open the possibility of unlimited tenure. This amendment reflects existing
practice in appointments, whereby members of the Commission are typically appointed for a
five-year initial term, and may be reappointed for a one or two-year subsequent term.
62. New subsection 37(2) provides that a person must not be appointed as the President of
the Commission for a period if the sum of that period, and any periods of previous
appointment as the President, exceeds 7 years. Accordingly, if a person has been appointed
for an initial term of 5 years as the President, that person cannot be reappointed as the
President for a period of more than two years. Similarly, if a person has been appointed for an
initial term of 7 years, that person cannot be reappointed.
63. New subsection 37(3) provides that a person must not be appointed as the
Human Rights Commissioner for a period if the sum of that period, and any periods of
previous appointment as the Human Rights Commissioner, exceeds 7 years. Accordingly, if a
person has been appointed for an initial term of 5 years as Human Rights Commissioner, that
person cannot be reappointed as Human Rights Commissioner for more than two years.
Similarly, if a person has been appointed for an initial term of 7 years, that person cannot be
reappointed.
64. New paragraph 37(2)(b) applies only to previous substantive appointments as the
President under section 8A. It does not apply to previous acting appointments as the President
under section 36(2) of the Australian Human Rights Commission Act. Accordingly, a
person's previous periods as acting President are not counted towards the 7-year limit on total
tenure.
65. Similarly, new paragraph 37(3)(b) applies only to previous substantive appointments
as the Human Rights Commissioner under section 8B. It does not apply to previous acting
appointments as the Human Rights Commissioner under section 36(3) of the Australian
Human Rights Commission Act. Accordingly, a person's previous periods as acting Human
Rights Commissioner are not counted towards the 7-year limit on total tenure.
11
66. New paragraph 37(2)(b) is inclusive of any period of leave the President takes during
their appointment. Any period of leave will not affect the length of a period of appointment
which will not exceed 7-years.
67. Similarly, new paragraph 37(3)(b) is inclusive of any period of leave the
Human Rights Commissioner takes during their appointment. Any period of leave will not
affect the length of a period of appointment which will not exceed 7-years.
Item 10 Subsection 46B(2)
68. Item 10 repeals subsection 46B(2) and replaces it with a new subsection which
provides that a person must not be appointed as Aboriginal and Torres Strait Islander Social
Justice Commissioner under subsection 46B(1) unless the Minister is satisfied that the person
has significant experience in community life of Aboriginal persons or Torres Strait Islanders
and that the selection process to appoint the person was merit-based and publicly advertised.
69. New paragraph 46B(2)(a) provides that a person must not be appointed as the
Aboriginal and Torres Strait Islander Social Justice Commissioner unless the Minister is
satisfied that the person has significant experience in community life of Aboriginal persons or
Torres Strait Islanders. This reflects the existing experience requirements in
subsection 46B(2) of the Australian Human Rights Commission Act.
70. New paragraph 46B(2)(a) is not identical to the qualification provisions of the other
Commissioners. The provision focuses on engagement in the community the Commissioner
represents as the key criteria for the appointment of the Commissioner, and it is appropriate
to maintain this distinction.
71. New paragraph 46B(2)(b) provides that a person must not be appointed as the
Aboriginal and Torres Strait Islander Social Justice Commissioner unless the Minister is
satisfied that the selection of the person for the appointment is the result of a process that was
merit-based and included public advertising of the position.
72. This amendment will ensure that appointments to the position of Aboriginal and
Torres Strait Islander Social Justice Commissioner are merit-based and transparent, in
response to concerns raised by the Sub-Committee on Accreditation that appointments to the
Commission could be made without a full selection process. This amendment will remove
this ability to directly appoint a person as Aboriginal and Torres Strait Islander Social Justice
Commissioner and ensure that appointees are selected for appointment only as a result of a
full merit-based selection process, which must include public advertising of the position.
73. New subparagraph 46B(2)(b)(i) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a merit-based selection process. A person
must not be appointed as Aboriginal and Torres Strait Islander Social Justice Commissioner
unless they are found suitable as a result of such a selection process.
74. New subparagraph 46B(2)(b)(ii) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a selection process which included public
advertising of the position. Public advertising includes advertising in the national media, such
as in national or other broad-reaching newspapers, as well as on government websites, as
relevant.
12
75. New subsection 46B(2) only applies to substantive appointments as the
Aboriginal and Torres Strait Islander Social Justice Commissioner under subsection 46B(1).
It does not apply to acting appointments under section 46J of the Australian Human Rights
Commission Act. This reflects the purpose of providing for acting appointments - that they
may need to be made on an urgent or short-term basis, such as to fill a vacant position whilst
a merit selection process is conducted.
76. New subsection 46B(3) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the Aboriginal and Torres
Strait Islander Social Justice Commissioner. This is because an incumbent Commissioner will
already have been assessed as suitable for appointment through a merit-based and transparent
selection process, and allows flexibility for Commissioners to be reappointed on a short-term
basis, such as to complete existing projects. In accordance with new subsection 46D(1A)
introduced by Item 12, a Commissioner can only be reappointed for a period if the total
period of appointment does not exceed 7 years.
77. This exclusion in new subsection 46B(3) only applies to reappointments of the
Aboriginal and Torres Strait Islander Social Justice Commissioner where the Commissioner
held the office immediately before the start of the period of reappointment. Accordingly, if a
person completed an initial period of appointment as Aboriginal and Torres Strait Islander
Social Justice Commissioner, and then sought to be appointed in future years, the selection of
that person for appointment must be through a merit-based and publicly advertised selection
process in accordance with new paragraph 46B(2)(b).
Item 11 Subsection 46D(1)
78. Item 11 omits reference to the period of appointment of the Aboriginal and Torres
Strait Islander Social Justice Commissioner not exceeding 7 years from subsection 46D(1).
This amendment is consequential to Item 12, which inserts new subsection 46D(1A) which
clarifies that the Aboriginal and Torres Strait Islander Social Justice Commissioner cannot be
appointed for a period exceeding 7 years.
Item 12 After subsection 46D(1)
79. Item 12 inserts a new subsection to clarify that a person must not be appointed as the
Aboriginal and Torres Strait Islander Social Justice Commissioner under section 46B for a
total period that exceeds 7 years.
80. Under subsection 46D(1), the Aboriginal and Torres Strait Islander Social Justice
Commissioner holds office for such period, not exceeding 7 years, as is specified in the
instrument of appointment. This amendment will limit the total term that a Commissioner
may be appointed for, inclusive of any reappointment, to 7 years. This addresses the concerns
raised by the Sub-Committee on Accreditation that appointment provisions for members of
the Commission left open the possibility of unlimited tenure. This amendment reflects
existing practice in appointments, whereby members of the Commission are typically
appointed for a five-year initial term, and may be reappointed for a one or two-year
subsequent term.
81. New subsection 46D(1A) provides that a person must not be appointed as the
Aboriginal and Torres Strait Islander Social Justice Commissioner for a period if the sum of
13
that period, and any periods of previous appointment as Aboriginal and Torres Strait Islander
Social Justice Commissioner, exceeds 7 years. Accordingly, if a person has been appointed
for an initial term of 5 years as Aboriginal and Torres Strait Islander Social Justice
Commissioner, that person cannot be reappointed as Aboriginal and Torres Strait Islander
Social Justice Commissioner for more than two years. Similarly, if a person has been
appointed for an initial term of 7 years, that person cannot be reappointed.
82. New paragraph 46D(1A)(b) applies only to previous substantive appointments as
Aboriginal and Torres Strait Islander Social Justice Commissioner under section 46B. It does
not apply to previous acting appointments as Aboriginal and Torres Strait Islander Social
Justice Commissioner under section 46J of the Australian Human Rights Commission Act.
Accordingly, a person's previous periods as acting Aboriginal and Torres Strait Islander
Social Justice Commissioner are not counted towards the 7-year limit on total tenure.
83. New paragraph 46D(1A)(b) in inclusive of any period of leave the Aboriginal and
Torres Strait Islander Social Justice Commissioner takes during their appointment. Any
period of leave will not affect the length of a period of appointment which will not exceed
7 years.
Item 13 Subsection 46MC(2)
84. Item 13 repeals subsection 46MC(2) and replaces it with a new subsection which
provides that a person must not be appointed as National Children's Commissioner under
subsection 46MC(1) unless the Minister is satisfied that the person has appropriate
qualifications and that the selection process to appoint the person was merit-based and
publicly advertised.
85. New paragraph 46MC(2)(a) provides that a person must not be appointed as the
National Children's Commissioner unless the Minister is satisfied that the person has
appropriate qualifications, knowledge or experience. This reflects the existing qualifications
requirements in subsection 46MC(2) of the Australian Human Rights Commission Act.
86. New paragraph 46MC(2)(b) provides that a person must not be appointed as the
National Children's Commissioner unless the Minister is satisfied that the selection of the
person for the appointment is the result of a process that was merit-based and included public
advertising of the position.
87. This amendment will ensure that appointments to the position of National Children's
Commissioner are merit-based and transparent, in response to concerns raised by the
Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as National Children's Commissioner and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
88. New subparagraph 46MC(2)(b)(i) requires the Minister to be satisfied that the
selection of the person for the appointment is the result of a merit-based selection process. A
person must not be appointed as National Children's Commissioner unless they are found
suitable as a result of such a selection process.
14
89. New subparagraph 46MC(2)(b)(ii) requires the Minister to be satisfied that the
selection of the person for the appointment is the result of a selection process which included
public advertising of the position. Public advertising includes advertising in the national
media, such as in national or other broad-reaching newspapers, as well as on government
websites, as relevant.
90. New subsection 46MC(2) only applies to substantive appointments as
National Children's Commissioner under subsection 46MC(1). It does not apply to acting
appointments under section 46ME of the Australian Human Rights Commission Act. This
reflects the purpose of providing for acting appointments - that they may need to be made on
an urgent or short-term basis, such as to fill a vacant position whilst a merit selection process
is conducted.
91. New subsection 46MC(3) provides that the requirement for the Minister to be
satisfied that the person was selected for appointment as a result of a merit-based and
publicly advertised selection process does not apply to reappointments of the
National Children's Commissioner. This is because an incumbent Commissioner will already
have been assessed as suitable for appointment through a merit-based and transparent
selection process, and allows flexibility for Commissioners to be reappointed on a short-term
basis, such as to complete existing projects. In accordance with new subsection 46MD(2)
introduced by Item 16, a Commissioner can only be reappointed for a period if the total
period of appointment does not exceed 7 years.
92. This exclusion in new subsection 46MC(3) only applies to reappointments of the
National Children's Commissioner where the Commissioner held the office immediately
before the start of the period of reappointment. Accordingly, if a person completed an initial
period of appointment as National Children's Commissioner, and then sought to be appointed
in future years, the selection of that person for appointment must be through a merit-based
and publicly advertised selection process in accordance with new paragraph 46MC(2)(b).
Item 14 Section 46MD
93. Item 14 inserts (1) before existing section 46MD. This amendment is consequential to
Item 16, which inserts new subsection 46MD(2).
Item 15 Section 46MD
94. Item 15 omits reference to the period of appointment of the National Children's
Commissioner not exceeding 7 years from section 46MD. This amendment is consequential
to Item 16, which inserts new subsection 46MD(2) which clarifies that the National
Children's Commissioner cannot be appointed for a period exceeding 7 years.
Item 16 At the end of section 46MD
95. Item 16 inserts a new subsection to clarify that a person must not be appointed as the
National Children's Commissioner under section 46MC for a total period that exceeds
7 years.
96. This amendment will limit the total term that a Commissioner may be appointed for,
inclusive of any reappointment, to 7 years. This addresses the concerns raised by the Sub-
Committee on Accreditation that appointment provisions for members of the Commission left
15
open the possibility of unlimited tenure. This amendment reflects existing practice in
appointments, whereby members of the Commission are typically appointed for a five-year
initial term, and may be reappointed for a one or two-year subsequent term.
97. New subsection 46MD(2) provides that a person must not be appointed as the
National Children's Commissioner for a period if the sum of that period, and any periods of
previous appointment as National Children's Commissioner, exceeds 7 years. Accordingly, if
a person has been appointed for an initial term of 5 years as National Children's
Commissioner that person cannot be reappointed as National Children's Commissioner for
more than two years. Similarly, if a person has been appointed for an initial term of 7 years,
that person cannot be reappointed.
98. New paragraph 46MD(2)(b) applies only to previous substantive appointments as
National Children's Commissioner under section 46MC. It does not apply to previous acting
appointments as National Children's Commissioner under section 46ME of the Australian
Human Rights Commission Act. Accordingly, a person's previous periods as acting National
Children's Commissioner are not counted towards the 7-year limit on total tenure.
99. New paragraph 46MD(2)(b) in inclusive of any period of leave the
National Children's Commissioner takes during their appointment. Any period of leave will
not affect the length of a period of appointment which will not exceed 7-years.
Disability Discrimination Act 1992
Item 17 Subsection 113(2)
100. Item 17 repeals subsection 113(2) and replaces it with a new subsection which
provides that a person must not be appointed as Disability Discrimination Commissioner
under subsection 113(1) unless the Minister is satisfied that the person has appropriate
qualifications and that the selection process to appoint the person was merit-based and
publicly advertised.
101. New paragraph 113(2)(a) provides that a person must not be appointed as the
Disability Discrimination Commissioner unless the Minister is satisfied that the person has
appropriate qualifications, knowledge or experience. This reflects the existing qualifications
requirements in subsection 113(2) of the Disability Discrimination Act.
102. New paragraph 113(2)(b) provides that a person must not be appointed as the
Disability Discrimination Commissioner unless the Minister is satisfied that the selection of
the person for the appointment is the result of a process that was merit-based and included
public advertising of the position.
103. This amendment will ensure that appointments to the position of Disability
Discrimination Commissioner are merit-based and transparent, in response to concerns raised
by the Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as Disability Discrimination Commissioner and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
16
104. New subparagraph 113(2)(b)(i) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a merit-based selection process. A person
must not be appointed as Disability Discrimination Commissioner unless they are found
suitable as a result of such a selection process.
105. New subparagraph 113(2)(b)(ii) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a selection process which included public
advertising of the position. Public advertising includes advertising in the national media, such
as in national or other broad-reaching newspapers, as well as on government websites, as
relevant.
106. New subsection 113(2) only applies to substantive appointments as the Disability
Discrimination Commissioner under subsection 113(1). It does not apply to acting
appointments under section 120 of the Disability Discrimination Act. This reflects the
purpose of providing for acting appointments - that they may need to be made on an urgent
or short-term basis, such as to fill a vacant position whilst a merit selection process is
conducted.
107. New subsection 113(3) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the Disability
Discrimination Commissioner. This is because an incumbent Commissioner will already have
been assessed as suitable for appointment through a merit-based and transparent selection
process, and allows flexibility for Commissioners to be reappointed on a short-term basis,
such as to complete existing projects. In accordance with new subsection 114(1A) introduced
by Item 19, a Commissioner can only be reappointed for a period if the total period of
appointment does not exceed 7 years.
108. This exclusion in new subsection 113(3) only applies to reappointments of the
Disability Discrimination Commissioner where the Commissioner held the office
immediately before the start of the period of reappointment. Accordingly, if a person
completed an initial period of appointment as Disability Discrimination Commissioner, and
then sought to be appointed in future years, the selection of that person for appointment must
be through a merit-based and publicly advertised selection process in accordance with new
paragraph 113(2)(b).
Item 18 Subsection 114(1)
109. Item 18 omits reference to the period of appointment of the Disability Discrimination
Commissioner not exceeding 7 years from subsection 114(1). This amendment is
consequential to Item 19, which inserts new subsection 114(1A) which clarifies that the
Disability Discrimination Commissioner cannot be appointed for a period exceeding 7 years.
Item 19 After subsection 114(1)
110. Item 19 inserts a new subsection to clarify that a person must not be appointed as the
Disability Discrimination Commissioner under section 113(1) for a total period that exceeds
7 years.
111. This amendment will limit the total term that a Commissioner may be appointed for,
inclusive of any reappointment, to 7 years. This addresses the concerns raised by the Sub-
17
Committee on Accreditation that appointment provisions for members of the Commission left
open the possibility of unlimited tenure. This amendment reflects existing practice in
appointments, whereby members of the Commission are typically appointed for a five-year
initial term, and may be reappointed for a one or two-year subsequent term.
112. New subsection 114(1A) provides that a person must not be appointed as the
Disability Discrimination Commissioner for a period if the sum of that period, and any
periods of previous appointment as Disability Discrimination Commissioner, exceeds 7 years.
Accordingly, if a person has been appointed for an initial term of 5 years as Disability
Discrimination Commissioner that person cannot be reappointed as Disability Discrimination
Commissioner for more than two years. Similarly, if a person has been appointed for an
initial term of 7 years, that person cannot be reappointed.
113. New paragraph 114(1A)(b) applies only to previous substantive appointments as
Disability Discrimination Commissioner under section 113. It does not apply to previous
acting appointments as Disability Discrimination Commissioner under section 120 of the
Disability Discrimination Act. Accordingly, a person's previous periods as acting Disability
Discrimination Commissioner are not counted towards the 7-year limit on total tenure.
114. New paragraph 114(1A)(b) in inclusive of any period of leave the Disability
Discrimination Commissioner takes during their appointment. Any period of leave will not
affect the length of a period of appointment which will not exceed 7 years.
Racial Discrimination Act 1975
Item 20 Subsection 29(2)
115. Item 20 repeals subsection 29(2) and replaces it with a new subsection which provides
that a person must not be appointed as Race Discrimination Commissioner under
subsection 29(1) unless the Minister is satisfied that the person has appropriate qualifications
and that the selection process to appoint the person was merit-based and publicly advertised.
116. New paragraph 29(2)(a) provides that a person must not be appointed as the Race
Discrimination Commissioner unless the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience. This reflects the existing qualifications requirements
in subsection 29(2) of the Racial Discrimination Act.
117. New paragraph 29(2)(b) provides that a person must not be appointed as the Race
Discrimination Commissioner unless the Minister is satisfied that the selection of the person
for the appointment is the result of a process that was merit-based and included public
advertising of the position.
118. This amendment will ensure that appointments to the position of Race Discrimination
Commissioner are merit-based and transparent, in response to concerns raised by the
Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as Race Discrimination Commissioner and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
18
119. New subparagraph 29(2)(b)(i) requires the Minister to be satisfied that the selection of
the person for the appointment is the result of a merit-based selection process. A person must
not be appointed as Race Discrimination Commissioner unless they are found suitable as a
result of such a selection process.
120. New subparagraph 29(2)(b)(ii) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a selection process which included public
advertising of the position. Public advertising includes advertising in the national media, such
as in national or other broad-reaching newspapers, as well as on government websites, as
relevant.
121. New subsection 29(2) only applies to substantive appointments as the
Race Discrimination Commissioner under subsection 29(1). It does not apply to acting
appointments under section 36 of the Racial Discrimination Act. This reflects the purpose of
providing for acting appointments - that they may need to be made on an urgent or short-term
basis, such as to fill a vacant position whilst a merit selection process is conducted.
122. New subsection 29(3) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the Race Discrimination
Commissioner. This is because an incumbent Commissioner will already have been assessed
as suitable for appointment through a merit-based and transparent selection process, and
allows flexibility for Commissioners to be reappointed on a short-term basis, such as to
complete existing projects. In accordance with new subsection 30(1) introduced by Item 22, a
Commissioner can only be reappointed for a period if the total period of appointment does
not exceed 7 years.
123. This exclusion in new subsection 29(3) only applies to reappointments of the Race
Discrimination Commissioner where the Commissioner held the office immediately before
the start of the period of reappointment. Accordingly, if a person completed an initial period
of appointment as Race Discrimination Commissioner, and then sought to be appointed in
future years, the selection of that person for appointment must be through a merit-based and
publicly advertised selection process in accordance with new paragraph 29(2)(b).
Item 21 Subsection 30(1)
124. Item 21 omits reference to the period of appointment of the Race Discrimination
Commissioner not exceeding 7 years from subsection 30(1). This amendment is
consequential to Item 22 which inserts subsection 30(2) which clarifies that the
Race Discrimination Commissioner cannot be appointed for a period exceeding 7 years.
Item 22 After subsection 30(1)
125. Item 22 inserts a new subsection to clarify that a person must not be appointed as the
Race Discrimination Commissioner under section 29 for a total period that exceeds 7 years.
126. This amendment will limit the total term that a Commissioner may be appointed for,
inclusive of any reappointment, to 7 years. This addresses the concerns raised by the Sub-
Committee on Accreditation that appointment provisions for members of the Commission left
open the possibility of unlimited tenure. This amendment reflects existing practice in
19
appointments, whereby members of the Commission are typically appointed for a five-year
initial term, and may be reappointed for a one or two-year subsequent term.
127. New subsection 30(2) provides that a person must not be appointed as the Race
Discrimination Commissioner for a period if the sum of that period, and any periods of
previous appointment as Race Discrimination Commissioner, exceeds 7 years. Accordingly,
if a person has been appointed for an initial term of 5 years as Race Discrimination
Commissioner that person cannot be reappointed as Race Discrimination Commissioner for
more than two years. Similarly, if a person has been appointed for an initial term of 7 years,
that person cannot be reappointed.
128. New paragraph 30(2)(b) applies only to previous substantive appointments as
Race Discrimination Commissioner under section 29(1). It does not apply to previous acting
appointments as Race Discrimination Commissioner under section 36 of the
Racial Discrimination Act. Accordingly, a person's previous periods as acting
Race Discrimination Commissioner are not counted towards the 7-year limit on total tenure.
129. New paragraph 30(2)(b) in inclusive of any period of leave the Race Discrimination
Commissioner takes during their appointment. Any period of leave will not affect the length
of a period of appointment which will not exceed 7-years.
Sex Discrimination Act 1984
Item 23 Subsection 96(2)
130. Item 23 repeals subsection 96(2) and replaces it with a new subsection which provides
that a person must not be appointed as Sex Discrimination Commissioner under subsection
96(1) unless the Minister is satisfied that the person has appropriate qualifications and that
the selection process to appoint the person was merit-based and publicly advertised.
131. New paragraph 96(2)(a) provides that a person must not be appointed as the Sex
Discrimination Commissioner unless the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience. This reflects the existing qualifications requirements
in subsection 96(2) of the Sex Discrimination Act.
132. New paragraph 96(2)(b) provides that a person must not be appointed as the Sex
Discrimination Commissioner unless the Minister is satisfied that the selection of the person
for the appointment is the result of a process that was merit-based and included public
advertising of the position.
133. This amendment will ensure that appointments to the position of Sex Discrimination
Commissioner are merit-based and transparent, in response to concerns raised by the
Sub-Committee on Accreditation that appointments to the Commission could be made
without a full selection process. This amendment will remove this ability to directly appoint a
person as Sex Discrimination Commissioner and ensure that appointees are selected for
appointment only as a result of a full merit-based selection process, which must include
public advertising of the position.
134. New subparagraph 96(2)(b)(i) requires the Minister to be satisfied that the selection of
the person for the appointment is the result of a merit-based selection process. A person must
20
not be appointed as Sex Discrimination Commissioner unless they are found suitable as a
result of such a selection process.
135. New subparagraph 96(2)(b)(ii) requires the Minister to be satisfied that the selection
of the person for the appointment is the result of a selection process which included public
advertising of the position. Public advertising includes advertising in the national media, such
as in national or other broad-reaching newspapers, as well as on government websites, as
relevant.
136. New subsection 96(2) only applies to substantive appointments as the
Sex Discrimination Commissioner under subsection 96(1). It does not apply to acting
appointments under section 103 of the Sex Discrimination Act. This reflects the purpose of
providing for acting appointments - that they may need to be made on an urgent or short-term
basis, such as to fill a vacant position whilst a merit selection process is conducted.
137. New subsection 96(3) provides that the requirement for the Minister to be satisfied
that the person was selected for appointment as a result of a merit-based and publicly
advertised selection process does not apply to reappointments of the Sex Discrimination
Commissioner. This is because an incumbent Commissioner will already have been assessed
as suitable for appointment through a merit-based and transparent selection process, and
allows flexibility for Commissioners to be reappointed on a short-term basis, such as to
complete existing projects. In accordance with new subsection 97(2) introduced by Item 25, a
Commissioner can only be reappointed for a period if the total period of appointment does
not exceed 7 years.
138. This exclusion in new subsection 96(3) only applies to reappointments of the Sex
Discrimination Commissioner where the Commissioner held the office immediately before
the start of the period of reappointment. Accordingly, if a person completed an initial period
of appointment as Sex Discrimination Commissioner, and then sought to be appointed in
future years, the selection of that person for appointment must be through a merit-based and
publicly advertised selection process in accordance with new paragraph 96(2)(b).
Item 24 Subsection 97(1)
139. Item 24 omits reference to the period of appointment of the Sex Discrimination
Commissioner not exceeding 7 years from subsection 97(1). This amendment is
consequential to Item 25, which inserts new subsection 97(2) which clarifies that the
Sex Discrimination Commissioner cannot be appointed for a period exceeding 7 years.
Item 25 After subsection 97(1)
140. Item 25 inserts a new subsection to clarify that a person must not be appointed as the
Sex Discrimination Commissioner under section 96 for a total period that exceeds 7 years.
141. This amendment will limit the total term that a Commissioner may be appointed for,
inclusive of any reappointment, to 7 years. This addresses the concerns raised by the Sub-
Committee on Accreditation that appointment provisions for members of the Commission left
open the possibility of unlimited tenure. This amendment reflects existing practice in
appointments, whereby members of the Commission are typically appointed for a five-year
initial term, and may be reappointed for a one or two-year subsequent term.
21
142. New subsection 97(2) provides that a person must not be appointed as the
Sex Discrimination Commissioner for a period if the sum of that period, and any periods of
previous appointment as Sex Discrimination Commissioner, exceeds 7 years. Accordingly, if
a person has been appointed for an initial term of 5 years as Sex Discrimination
Commissioner that person cannot be reappointed as Sex Discrimination Commissioner for
more than two years. Similarly, if a person has been appointed for an initial term of 7 years,
that person cannot be reappointed.
143. New paragraph 97(2)(b) applies only to previous substantive appointments as
Sex Discrimination Commissioner under section 96(1). It does not apply to previous acting
appointments as Sex Discrimination Commissioner under section 103 of the
Sex Discrimination Act. Accordingly, a person's previous periods as acting Sex
Discrimination Commissioner are not counted towards the 7-year limit on total tenure.
144. New paragraph 97(2)(b) in inclusive of any period of leave the Sex Discrimination
Commissioner takes during their appointment. Any period of leave will not affect the length
of a period of appointment which will not exceed 7-years.
Item 26 Existing appointments
145. Item 26 provides that the amendments made by this Schedule do not affect the
validity of an appointment made before the commencement of this Act and a period of
appointment that was specified in an instrument of appointment before the commencement.
22