Human rights commissioner Lorraine Finlay (Image: Murdoch University)

Bureaucrats at Attorney-General Michaelia Cash’s department privately raised concerns as early as May about former Liberal candidate Lorraine Finlay’s appointment as human rights commissioner, which took place in September, worrying that the lack of a transparent selection process would attract public criticism. 

Finlay, a Murdoch University law lecturer and human trafficking specialist who has deep ties to the Western Australian Liberal Party, begins in the high-profile role within the Australian Human Rights Commission later this month. 

In a series of internal emails obtained by Crikey under freedom of information, department officials conceded that “an appointment process without advertising will be the subject of public criticism”. 

The emails show bureaucrats sought advice from Attorney-General Department deputy secretary Iain Anderson on the reasons for not advertising the role, while noting the “usual reason” for such a captain’s pick was the “availability of an eminent person”. The documents also confirm the decision to appoint Finlay came from Cash, who had her in mind as a candidate from May this year. 

At a Senate estimates hearing last month, Cash said Finlay had been appointed without a public selection process because she was an “eminent person”. She cited the government’s merit and transparency policy guidelines, which allow the prime minister to approve a direct nomination in special circumstances, which include the availability of an eminent person.

AGD officials were right: Finlay’s appointment did attract public controversy. Some was because of her past conservative policy positions, first reported by Crikey.

She has opposed gender quotas for women, advocated the abolition of s 18C of the Racial Discrimination Act, and called an Indigenous voice to Parliament “political segregation”. Her appearance on a YouTube video with men’s rights activist Bettina Arndt was criticised by Australian of the Year Grace Tame, who called Finlay’s appointment a “grave mistake”. The Institute of Public Affairs, a right-wing think tank, named Finlay as one of its chosen candidates for the commission.

But much of that criticism was, as predicted, because of the lack of a transparent appointment process, including from Amnesty International and the Law Council of Australia. Human Rights Law Centre executive director Hugh de Kretser tells Crikey that although his organisation didn’t prejudge Finlay, her appointment “goes completely against best practice”.

“Australia needs a strong, independent Australian Human Rights Commission,” he said. “A fair, open and merit-based selection process for commissioner positions is a vital part of this.”

Labor’s shadow attorney-general Mark Dreyfus said the commission “should not be used by the Liberals as a place to wage their culture wars”.

“The attorney-general trashed Australia’s commitment to open and transparent appointments to bodies such as the AHRC by appointing another Liberal mate without even allowing other vastly more qualified candidates to be considered,” he told Crikey. 

Finlay’s appointment is another instance of the Coalition appointing a captain’s pick to the position. In 2013 the Abbott government handed the role to Institute of Public Affairs policy director Tim Wilson, now a Liberal MP.

Then-attorney-general George Brandis openly admitted the Wilson pick was political, but after copping criticism, his subsequent appointments to the AHRC, including that of outgoing human rights commissioner Ed Santow, have been publicly advertised.

In 2019 Cash’s predecessor Christian Porter appointed barrister Ben Gauntlett as Disability Discrimination Commissioner without a public process, although this was to fill a vacancy when his predecessor Alastair McEwin took a role with the disability royal commission. 

But another Coalition captain’s pick could jeopardise the AHRC’s international standing. It is afforded “A-status” under the Paris Principles, the international standards for national human rights institutions but one criterion for remaining is a “clear, transparent and participatory selection process” for commissioners. Australia is due for review next year.