Human Rights Commission’s credibility on the line over Voice dissent

The current dissonance within the Australian Human Rights Commission on the proposed Indigenous Voice to parliament might give many people pause, especially with the referendum just around the corner.

The claim by one member of the commission that it may not be consistent with Australia’s human rights commitments is misleading and may prove damaging, not just for the Voice, but for the Australian Human Rights Commission (AHRC) itself.

Lorraine Finlay’s view that the Voice will create “constitutional uncertainty” has been criticised as misleading.Credit: Murdoch University

Following the release of the proposed wording for the constitutional amendment by the prime minister last week, the AHRC issued a statement that the proposal for an Aboriginal and Torres Strait Islander Voice was consistent with fundamental human rights principles, and with international human rights conventions that Australia has endorsed.

Following that, the current Human Rights Commissioner Lorraine Finlay published an opinion piece questioning whether the Voice was constitutional overreach, suggesting that it is at odds with fundamental human rights principles such as equality and non-discrimination, and goes beyond the rights set out in UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

“The draft wording … inserts race into the Australian Constitution in a way that undermines the foundational human rights principles of equality and non-discrimination,” she wrote, “and creates constitutional uncertainty in terms of its interpretation and operation.”

The president of the AHRC, Rosalind Croucher, responded, stating that there was “clear international guidance” that the Voice was consistent with fundamental human rights principles, and Australia’s international human rights obligations.

Five former human rights commissioners then issued a joint statement noting their unanimous disagreement with Finlay’s position and suggested her opinion piece “is likely to mislead Australians” about the scope and foundation for the Voice proposal.

The Voice is all about human rights. It is a clear statement of Indigenous people’s human rights. The UNDRIP recognises a wide range of human rights that are specifically afforded to Indigenous people, including political participation, the right to be consulted on measures to eliminate discrimination, the right to exercise self-governance on matters that relate to their affairs and on how to improve their economic and social rights.

This is exactly what the Voice is designed to address and offers a mechanism to ensure Australia is fulfilling its role to ensure the human rights of all its people are respected and protected. The UN Special Rapporteur on the Rights of Indigenous Peoples has urged the adoption of the Uluru Statement and the constitutional enshrinement of the Voice as a way to ensure that First Nations voices can really be heard.

The Voice recognises the permanent rights that are afforded to Indigenous people and promotes Indigenous rights. It does not detract or diminish other rights; it sits alongside them. Finlay’s claim that the Voice is a discriminatory measure is wrong. It is not an exercise in positive discrimination, nor what the UN refers to as a “special measure”. It is a valid recognition of the permanent rights of Australia’s First People and this interpretation is consistent with the views of the Committee on the Elimination of Racial Discrimination.

Chair of the Australian Human Rights Commission Professor Rosalind Croucher.Credit: Dominic Lorrimer

Questions around the ability of the AHRC to effectively and credibly represent Australia on human rights are not new. In 2022, the international body that accredits national human rights institutions, the Global Alliance of National Human Rights Institutions (GANHRI), put the Australian body on notice that its status was under review and its re-accreditation as an “A status” national human rights institution was deferred.

Partially compliant human rights commissions are given “B status” and may only participate as observers. They are essentially works in progress. Among the countries in this class are Myanmar, Venezuela, Chad, Libya and Bahrain.

One of the concerns of the accreditation body was around the system of appointments of commissioners. Finlay was appointed by the former Liberal government without an open merit-based process. This was also true of two other commissioners also appointed by the former Liberal government.

In 2022, one of the first legislative bills introduced into parliament by the new Attorney-General Mark Dreyfus mandated all senior leadership appointments at the commission to be publicly advertised, merit-based, and limited to a maximum of seven years.

However, one of the other concerns of the accreditation body is whether the commission can effectively fulfil its mandate for the promotion and protection of all human rights. The GANHRI statement noted that a national human rights institution’s mandate “should be interpreted in a broad, liberal and purposive manner to promote a progressive definition of human rights”.

While the current dissonance within the commission may reflect a robust approach to the protection of one right – the freedom of speech of the commissioners – it shows a failure to adopt (and understand) a purposive approach to progressing human rights in Australia that embodies equality and promotes non-discrimination.

The Voice provides Australia with a rare opportunity to ensure that the rights of all Australians, including our First Nations peoples, are not only recognised but heard equally. Surely, our human rights commissioner can get on board with this concept.

Justine Nolan is the Director of the Australian Human Rights Institute and a Professor in the Faculty of Law and Justice at UNSW Sydney. Gabrielle Appleby is a Professor of Law at UNSW Sydney.

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