Do we need a new human rights commissioner? Yes, but it's complicated ...

Tim Wilson has announced his resignation as human rights commissioner to seek Liberal Party preselection for the federal seat of Goldstein. Wilson resigned from the party in 2013 to work at the Australian Human Rights Commission and is now heading back into the political fold.

So the question now is: does Australia still need a human rights commissioner? If so, should an incoming commissioner have the same “freedom” mandate as Wilson?

First, a little historical context. The role is provided for in the Australian Human Rights Commission Act, and Brian Burdekin was appointed to it upon the commission’s establishment in 1986. Next came more human rights luminaries – Chris Sidoti, Sev Ozdowski and Graeme Innes – who each simultaneously held the role of disability discrimination commissioner.

In the years leading up to Wilson’s appointment, from 2009-2012, the commission president, Catherine Branson, held the title, but the role was widely considered to be redundant.

It therefore came as a surprise when the new Coalition government appointed a full-time human rights commissioner in 2013, especially as it was Wilson, who was a director of an organisation committed to the commission’s abolition – the Institute of Public Affairs.

Attorney-General George Brandis declared the government’s intention was to “help restore balance” to the commission’s work, which had become “increasingly narrow and selective in its view of human rights”. Much can be said – and indeed has been – about the appropriateness of this move, but that is now water under the bridge.

The commission does focus on anti-discrimination work. This makes sense, since federal legislation provides strong protection against discrimination on several grounds (race, sex, disability and age), but eschews specific protection for most other human rights due to the lack of a human rights act.

The commission has limited resources, and allocating them primarily to work underpinned by the “big stick” of legislation makes sense. Discrimination remains one of the most prominent human rights issues facing Australian society, a fact underlined by Wilson’s own LGBTI and Indigenous rights work.

When Wilson was appointed, his brief, according to Brandis, was to champion freedom of expression and other “traditional liberal rights” which the government believed were being neglected. Incidentally, Brandis also asked the Australian Law Reform Commission to look into legislation that encroaches on these “traditional” rights and freedoms, and it found a great many. Its final report is due to be tabled this month.

That Wilson was to focus only on “negative” freedoms (which generally involve government restraint) rather than also covering “positive” rights (which require the government to act) was a troubling aspect of his appointment from an international law point of view.

Nevertheless, the renewed focus on rights and freedoms other than non-discrimination was welcome, since it highlighted the fact that they do not enjoy strong legal protection in Australia. For example, there are only two jurisdictions (the ACT and Victoria) where a person is legally protected against a breach of their right to freedom of expression, along with a host of other civil and political rights.

We have many more laws limiting freedom of association (which Wilson also promoted) than protecting it. It’s a great reminder that a proper human rights act would make the commissioner’s work more effective.

Despite the benefits it may have brought, Wilson’s appointment came at a great cost to the commission, which has had its funding reduced significantly. Innes, who served as an extremely effective disability discrimination commissioner from 2005 to 2014, saw his former role merged with the age discrimination commissioner’s to save a claimed A$1.7 million. The role of sex discrimination commissioner had gone unfilled for many months; an announcement was made last week that Kate Jenkins will start in April.

The political nature of Wilson’s appointment was not an isolated act. The government also placed unprecedented pressure on Innes and on the commission president, Gillian Triggs.

In the wake of Wilson’s resignation, the opposition has called for the position of disability commissioner to be reinstated properly in the place of a new human rights commissioner.

So what should happen from here?

• Both Innes and Wilson should be replaced on a full-time basis, with appropriate funding;

• As the Castan Centre noted in a media release welcoming Jenkins’ appointment, the process of appointments to the commission should be made transparent and put at arm’s length from the executive in the spirit of the Paris Principles relating to the Status of National Human Rights Institutions;

• Overall funding for the commission should be increased to enable it to champion a wide range of human rights and freedoms adequately. Its funding should also be “ring-fenced” – that is, guaranteed so that (quoting the Paris Principles) the commission will “not be subject to financial control which might affect its independence”.

In a media release, Brandis lauded Wilson for “single-handedly reshaping the human rights debate in Australia” and “restoring balance to a debate which had previously been dominated by the priorities and prejudices of the left”.

Putting aside the many problems with this statement due to space constraints, an article by Innes last February paints a very different picture of Brandis and Wilson’s effect on the commission.

Previous attorneys-general, while still defending their governments’ actions, acknowledged the commission’s job is sometimes to give government a “kicking” without fear or favour. The present government seems to believe it is above such treatment and has treated the commission badly. It is not too late, under the new leadership, to make up for this.