Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022

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Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022

 

No. 48, 2022

 

 

 

 

 

An Act to amend the law relating to the appointment of members of the Australian Human Rights Commission, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Age Discrimination Act 2004

Australian Human Rights Commission Act 1986

Disability Discrimination Act 1992

Racial Discrimination Act 1975

Sex Discrimination Act 1984

 

 

Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022

No. 48, 2022

 

 

 

An Act to amend the law relating to the appointment of members of the Australian Human Rights Commission, and for related purposes

[Assented to 9 November 2022]

The Parliament of Australia enacts:

1  Short title

  This Act is the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

10 November 2022

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

 

Age Discrimination Act 2004

1  Subsection 53A(1) (note)

Repeal the note, substitute:

Note: Subject to subsection 53B(1A), the Age Discrimination Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

2  Subsection 53A(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the Age Discrimination Commissioner unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Age Discrimination Commissioner under a previous appointment under subsection (1).

3  Subsection 53B(1)

Omit the second sentence.

4  After subsection 53B(1)

Insert:

 (1A) A person must not be appointed as the Age Discrimination Commissioner under section 53A for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the Age Discrimination Commissioner under that section.

Australian Human Rights Commission Act 1986

5  After subsection 8A(1)

Insert:

 (1A) A person must not be appointed under subsection (1) as the President unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (1B) Paragraph (1A)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the President under a previous appointment under subsection (1).

6  Subsection 8B(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the Human Rights Commissioner unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Human Rights Commissioner under a previous appointment under subsection (1).

7  Subsection 37(1)

After “subsection (2)”, insert “or (3)”.

8  Subsection 37(1)

Omit “, not exceeding 7 years,”.

9  After subsection 37(1)

Insert:

 (2) A person must not be appointed as the President under section 8A for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the President under that section.

 (3) A person must not be appointed as the Human Rights Commissioner under section 8B for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the Human Rights Commissioner under that section.

10  Subsection 46B(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the Aboriginal and Torres Strait Islander Social Justice Commissioner unless the Minister is satisfied that:

 (a) the person has significant experience in community life of Aboriginal persons or Torres Strait Islanders; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Aboriginal and Torres Strait Islander Social Justice Commissioner under a previous appointment under subsection (1).

11  Subsection 46D(1)

Omit “, not exceeding 7 years,”.

12  After subsection 46D(1)

Insert:

 (1A) A person must not be appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner under section 46B for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the Aboriginal and Torres Strait Islander Social Justice Commissioner under that section.

13  Subsection 46MC(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the National Children’s Commissioner unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the National Children’s Commissioner under a previous appointment under subsection (1).

14  Section 46MD

Before “The National”, insert “(1)”.

15  Section 46MD

Omit the second sentence.

16  At the end of section 46MD

Add:

 (2) A person must not be appointed as the National Children’s Commissioner under section 46MC for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the National Children’s Commissioner under that section.

Disability Discrimination Act 1992

17  Subsection 113(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the Disability Discrimination Commissioner unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Disability Discrimination Commissioner under a previous appointment under subsection (1).

18  Subsection 114(1)

Omit “, not exceeding 7 years,”.

19  After subsection 114(1)

Insert:

 (1A) A person must not be appointed as the Disability Discrimination Commissioner under section 113 for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the Disability Discrimination Commissioner under that section.

Racial Discrimination Act 1975

20  Subsection 29(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the Race Discrimination Commissioner unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Race Discrimination Commissioner under a previous appointment under subsection (1).

21  Subsection 30(1)

Omit “, not exceeding 7 years,”.

22  After subsection 30(1)

Insert:

 (2) A person must not be appointed as the Race Discrimination Commissioner under section 29 for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the Race Discrimination Commissioner under that section.

Sex Discrimination Act 1984

23  Subsection 96(2)

Repeal the subsection, substitute:

 (2) A person must not be appointed under subsection (1) as the Sex Discrimination Commissioner unless the Minister is satisfied that:

 (a) the person has appropriate qualifications, knowledge or experience; and

 (b) the selection of the person for the appointment is the result of a process that:

 (i) was merit‑based; and

 (ii) included public advertising of the position.

 (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Sex Discrimination Commissioner under a previous appointment under subsection (1).

24  Subsection 97(1)

Omit “, not exceeding 7 years,”.

25  After subsection 97(1)

Insert:

 (2) A person must not be appointed as the Sex Discrimination Commissioner under section 96 for a period if the sum of the following exceeds 7 years:

 (a) that period;

 (b) any periods of previous appointment of the person as the Sex Discrimination Commissioner under that section.

26  Existing appointments

The amendments made by this Schedule do not affect:

 (a) the validity of an appointment that was made before the commencement of this item; or

 (b) a period of appointment that was specified in an instrument of appointment before that commencement.

 

[Minister’s second reading speech made in—

House of Representatives on 27 July 2022

Senate on 3 August 2022]

(60/22)

 

Overview

The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022 was enacted by the Parliament of Australia to amend the laws governing the appointment of members to the Australian Human Rights Commission and to address certain issues in the existing legislative framework. This Act responds to the need for a more transparent and merit-based selection process for the appointment of key positions within the Commission, including the President, Human Rights Commissioner, Age Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Disability Discrimination Commissioner, National Children's Commissioner, and Race and Sex Discrimination Commissioners. The policy objective of the Act is to ensure that these positions are filled by individuals with appropriate qualifications, knowledge, and experience, and that the selection process is merit-based and involves public advertising of the positions. The Act introduces these changes by amending several existing Acts, including the Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and Sex Discrimination Act 1984. It specifies that appointments to these positions must be made based on merit and include public advertising, while also allowing for certain exceptions in the case of reappointments. Additionally, the Act imposes a limit on the total period for which an individual can be appointed to any of these positions, ensuring a degree of turnover and fresh perspectives within the Commission.

Scope and Application

The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022 amends the selection and appointment criteria for several key positions within the Australian Human Rights Commission (AHRC) and related roles across various anti-discrimination legislations. Specifically, the Act modifies the appointment process for the President, the Human Rights Commissioner, the Age Discrimination Commissioner, the Disability Discrimination Commissioner, the Racial Discrimination Commissioner, the Sex Discrimination Commissioner, and the Aboriginal and Torres Strait Islander Social Justice Commissioner, as well as the National Children’s Commissioner. These amendments require that appointments be made based on merit and must follow a process that includes public advertising, except in cases of reappointment where the individual was already holding office. Furthermore, the Act introduces a cap on the cumulative term of office for these roles, limiting it to a total of seven years across all appointments. The legislation applies to the Commonwealth of Australia and affects the selection and appointment processes as stipulated in the Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984, and other relevant Acts as outlined in the Schedule. The Act commenced on the day after receiving Royal Assent, which was 10 November 2022. Notably, the Act does not affect the validity of appointments made before its commencement nor the terms of such appointments already specified in instruments of appointment.

Key Provisions

The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Act 2022 makes significant changes to the criteria and processes for appointing members of the Australian Human Rights Commission and its related entities. The Act introduces stricter requirements for the appointment of commissioners to ensure that appointments are merit-based and transparent, with public advertising for each position. For instance, Section 53A(2) of the Age Discrimination Act 2004 now mandates 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, and that the selection process was merit-based and included public advertising. Similar provisions apply to other commissioners under the various discrimination Acts, including the Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and Sex Discrimination Act 1984. The Act imposes several obligations on the Minister responsible for appointments, primarily ensuring that appointments are made based on merit and public advertisement. For example, under the Australian Human Rights Commission Act 1986, the Minister must be satisfied that the person has appropriate qualifications, knowledge, or experience and that the selection process was merit-based and included public advertising. Additionally, the Act mandates that no person can be appointed for a period that would result in the total term exceeding seven years. This requirement applies to all commissioners appointed under the Acts mentioned above. Breaches of the provisions outlined in the Act may have serious consequences. While the Act does not explicitly detail criminal or civil penalties for non-compliance, the seriousness of the amendments suggests that failure to adhere to the new appointment criteria could lead to significant legal repercussions. The Minister’s failure to comply with the mandatory requirements for appointments could potentially invalidate the appointment, leading to a legal vacuum in the respective commission. This, in turn, could result in challenges to the legality of actions taken by commissioners appointed under non-compliant processes, potentially culminating in judicial review or other legal actions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.