Perth legal academic Lorraine Finlay has been named as the newest appointee to the Australian Human Rights Commission, but LGBTIQA+ rights advocates have expressed concern over her selection.

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just.equal Australia has written to the Australian Human Rights Commission asking that new Human Rights Commissioner not be given the LGBTIQ+ human rights portfolio and have called for a dedicated LGBTIQ+ Commissioner to be appointed instead.

Rights advocates say that the Human Rights Commissioner traditionally has been a champion for human rights not already covered by other Commissioners like the Sex, Race and Disability Discrimination Commissioners. Since at least the 1990s, the Human Rights Commissioner’s portfolio has included the rights of LGBTIQ+ people. There has never been a dedicated LGBTIQ+ Commissioner.

just.equal Australia spokesperson, Rodney Croome, said the group is concerned about Commissioner Finlay’s “previous attacks on existing LGBTIQ+ discrimination protections in the name of ‘religious freedom'”.

“We have no confidence Lorraine Finlay will uphold our existing discrimination protections and fear she will work to weaken them at every opportunity.” Croome said.

“We have written to the Australian Human Rights Commission asking that Ms Finlay does not hold the LGBTIQ+ portfolio as her predecessors have, and to the Federal Government asking for a dedicated LGBTIQ+ Commissioner.”

In 2018 Finlay was the co-author of a submission to the Ruddock religious freedom inquiry which declared Australia’s anti-discrimination laws were out of balance and greater protections were needed for religious beliefs.

“In our view, there is presently an unjustifiable imbalance between religious freedoms and anti-discrimination laws, with the balance weighted in favour of the latter. All too often, religious freedom in Australia is treated as a ‘secondary’ right that is not given equal weight with other human rights, in particular equality rights.

“This was evident during the debate surrounding same-sex marriage in Australia, where the Prime Minister declared that he believed in religious freedom ‘even more strongly’ than same-sex marriage, but went on to leave the question of protecting religious freedoms as an after-thought to be dealt with only once same-sex marriage had already been legislated.”

To justify this position the submission cited six examples, all of them about LGBTIQ+ discrimination and all arising from the marriage equality debate. The authors declared, “these examples will undoubtedly multiply in coming years following the legalisation of same-sex marriage in Australia.”

The submission concluded by saying there needed to be a recalibration of anti-discrimination laws.

“In our view, a much better way to proceed would be to look at amending existing anti-discrimination laws (at both the State and federal levels) so that they strike a better balance
between conflicting human rights.”

The Ruddock inquiry went on to find no threat to religious freedom in a post-marriage equality Australia.

Rodney Croome said the new commissioner had a history of putting forward a false narrative.

“Ms Finlay is a purveyor of the false, fear-based narrative that LGBTIQ+ equality poses a threat to religious freedom, and that, as a consequence, anti-discrimination laws should be weakened allowing religious bodies to have special legal privileges to treat us badly.”

“She is not an appropriate person to defend the human rights of LGBTIQ+ Australians.” Croome said.

Attorney General Michaelia Cash announced Finlay’s five year appointment earlier this week, saying Commissioner Finlay will be responsible for “protecting and promoting traditional rights and freedoms in Australia.”

Finlay is currently a Senior Human Trafficking Specialist with the Australian Mission to ASEAN, Department of Foreign Affairs and Trade, and a lecturer at Murdoch University and the University of Notre Dame in Sydney. She replaces former Human Rights Commissioner, Edward Santow, whose term expired earlier in the year.

Before her work in academia, Finlay was a State Prosecutor with the Office of the Director of Public Prosecutions for Western Australia. She also served as a associate to High Court judge Dyson Heydon for two years.

Finlay also has strong links to the Liberal party, having previously been the President of the Western Australia Liberal Party’s Women’s Council. In 2017 she unsuccessfully ran for spot in the upper house in the state election.

Writing in The Guardian social researcher Rebecca Huntley questioned if Finlay had the same level of expertise previous Human Rights Commissioners had held.

“Her appointment represents a gobsmacking gear shift for Australia – into a nation where it appears in depth experience and expertise doesn’t matter much any more.” Huntley wrote.

Grace Tame, advocate for survivors of sexual assault and current Australian of the Year, described the appointment as a “grave mistake”.  Citing Finlay’s public opposition to affirmative consent laws, which requires active steps to be taken to gain consent before sex.

Finlay responded to Tame’s comments via a series of posts of social media site Twitter. Finlay said her experience in the state prosecutors office had shown her the importance of listening to victims and empowering them, but she did have concerns about proposed enthusiastic consent laws.

“This is a law reform question that people can have different views about, while still sharing a firm commitment to condemning violence and protecting victims.” she said in her posts.

OUTinPerth contacted Lorraine Finlay to ask her about the concerns raised by just.equal. She responded saying she would be looking at doing media interviews closer to the commencement of her appointment in November.

Questions over selection process and appointment

Shadow Attorney-General Mark Dreyfus said Senator Cash needed to explain to the Australian people why Finlay had been selected for the role.

“I think Senator Cash, the Attorney-General, needs to explain what her aim is in appointing someone to this position who’s got views like Ms Finlay.” Dryfus told the Breakfast program on ABC’s Radio National. 

The Human Rights Law Centre have also questioned the appointment arguing that a more transparent process is needed, one which would allow the role to be widely advertised.

The group criticised the lack of an open, merit-based process for the appointment of a Human Rights Commissioner. It called on the Morrison government to commit to public, independent merit-based selection processes for future appointments.

Human Rights Law Centre Executive Director Hugh de Kretser said there issue was not with the selection of Lorraine Finlay, rather the process which saw her chosen for the position.

“Whether it’s dealing with the indefinite detention of refugees or the shameful treatment of Aboriginal and Torres Strait Islander Peoples, it’s clear that Australia needs a strong and independent Australian Human Rights Commission.

“Fair, open and merit-based selection processes for commissioner positions are critical in ensuring the commission’s independence and effectiveness. Instead, it appears that this is a hand-picked appointment that goes completely against best-practice processes.” de Kretser said.

“We don’t prejudge Ms Finlay’s contribution to the commission. The issue is how Senator Cash came to the conclusion that she is the best person for the job.

“For the best appointment model, the Morrison government should look to the internationally agreed standards for national human rights institutions. These standards require a clear, transparent and participatory appointment process. Vacancies should be publicised to maximise the number of potential candidates. There should be broad consultation and candidates should be assessed on the basis of pre-determined, objective and publicly available criteria.

“On the international stage, the Morrison government has continued Australia’s leadership in promoting standards that affirm the importance of strong, independent national human rights institutions. The Morrison government needs to live up to these standards at home and commit to an open merit-based selection processes for future appointments.

Graeme Watson

The Human Rights Commission was approached for comment.  

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