Dr Lorraine Finlay, Australia’s incoming human rights commissioner is not doing interviews.
“Thank you for getting in touch and for your request. I’ll be looking to do commencement interviews closer to my start date in November.”
Finlay, a Murdoch University professor focusing on human trafficking may be one of the only people in political circles not talking about her $400,000 a year, five-year appointment.
It’s not her qualifications that have created the controversy. It’s the way she was appointed – without an open selection process – and her history on issues she may now be asked to advocate for which has raised eyebrows.
Who is Lorraine Finlay?
Her Murdoch University bio and LinkedIn is dense. Finlay has lectured at the university’s School of Law since 2010, joining after a stint as a state prosecutor at the Western Australian office of the director of public prosecutions. Before that she had worked as a judge’s associate for Dyson Heydon in the high court and was selected as scholar in the NYUvenusdonahue4 dual-degree program. That’s where the concentration on international law and human rights came from, and since 2019, Finlay has worked part-time as a senior human trafficking specialist with the Australian mission to Asean.
It’s what is not included in her online resumes that has raised the ire of some critics.
She was on the Western Australian Liberal Women’s council from 2011 to 2018 and defended the council’s decision to reject quotas. She has previously run for pre-selection as a Liberal candidate.
Finlay was also one of the Institute of Public Affairs picks to replace Gillian Triggs in 2017. In its article, the Institute made particular mention of Finlay’s co-authorship of ‘No Offence Intended’, which it described as “an important book published in 2016 that explains how section 18C is incompatible with the Australian constitution on several grounds”.
Finlay was one of three authors of the book, which was billed as making a “timely contribution to the fight for freedom of expression in Australia”.
“In this book, the authors argue that s 18C is too broad and too vague to be constitutional. They argue that relevant international treaties do not support the sweeping scope of 18C. Further, they argue that 18C’s breadth and complexity impermissibly infringes the freedom of communication about government and political matters implied from the commonwealth constitution.”
She later appeared in an IPA ad attacking the Indigenous voice to parliament proposal, where she described it as “patronising” and “a form of political segregation” because it implied that Indigenous Australians are “only allowed to play a certain prescribed role in the Australian democracy”. Finlay also lent her name and comments to an IPA media release on the issue.
In a chapter in the 2012 Samuel Griffith Society’s Upholding the Australian Constitution paper, titled Indigenous Recognition: Some Issues, Finlay wrote of the “common pattern” of public discussions about Indigenous issues becoming “all too frequently constrained by political correctness and stifled by cries of racism that are aimed at anybody who does not uncritically accept whatever proposition is being put forward.”
Finlay was also the co-author of a submission to the 2018 Ruddock religious freedoms inquiry which argued religious freedoms were not being given enough weight in equality debates.
“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.”
Also in 2018, Finlay, in an article for the Spectator, wrote of the “significant legal and practical problems” with affirmative consent laws, which shifts from a “no means no” standard of consent, to one where consent before sexual acts must be actively sought and communicated.
Finlay pointed to United States jurisdictions where “yes means yes” standards had been enacted, arguing there were “countless examples” of the laws “broadening the definition of sexual assault in a way that sacrifices fairness and balance in the attempt to support victims and secure convictions.”
“At a practical level, the problem is that these laws are simply not workable,” she wrote.
“They fail to account for the way that humans interact in reality, and they transform any sexual encounter into a potential legal minefield. They also unacceptably blur the line between a bad sexual experience and an unlawful one. A ‘yes means yes’ standard makes it disturbingly easy for an individual to re-evaluate a regretted sexual encounter and to retrospectively withdraw consent, with some advocates in the USA going so far as to claim that ‘regret equals rape’.”
She expanded on these views in a video interview with men’s rights activist Bettina Arndt, who had previously interviewed the man convicted of abusing Tame as a 15 year-old.
Tame, speaking at the women’s safety summit earlier this week, raised Finaly’s position on affirmative consent and work with Arndt, in calling Finlay’s appointment to the human rights commission “a grave mistake” which showed “a fundamental lack of understanding at that top-level” about the issues being canvassed at the two-day summit.
“This position of Human Rights Commissioner, this is a power position, and also you know it’s a five-year tenure,” Tame said.
“What could have been a really progressive step has actually been a backwards one amid this summit. So I’m saying that the actions are not lining up with the words that are being spoken at the moment, unfortunately.”
Finlay may not be doing interviews, but after Tame criticised Finlay’s appointment while speaking at the women’s safety summit, Finlay issued a statement on Twitter.
“My views on affirmative consent reforms are views about one specific law reform issue. Concerns about these reforms have been expressed by various legal experts and groups, including the NSW Bar Association, Law Society of NSW, Legal Aid NSW and the Office of the DPP (NSW).
“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.
“My work as a State Prosecutor and in counter-trafficking has shown me the importance of listening to victims and empowering them. I am committed to working constructively to protect and advance human rights in my role as Human Rights Commissioner.”
It’s the only public comment she has made since her appointment was announced.
But advocacy groups have not been as quiet.
Rodney Coome, the spokesperson for LGBTIQA+ advocacy group Just. Equal Australia said Finlay’s previous stance on religious freedom and anti-discrimination laws raised red flags.
Labor’s Mark Dreyfus also waded in, telling the ABC in relation to Finlay’s stance on 18C, “we have a problem here if they’ve appointed someone as Human Rights Commissioner who is wanting to get rid of laws that are aimed at making sure everyone is heard, that everyone is respected. That’s what human rights should be about.”
Government MPs have come to Finlay’s defence.
Amanda Stoker said she was a “brilliant, capable woman” who would do “an amazing job”.
“We shouldn’t let, you know, partisan, political positions here undermine what is a great woman doing great things, who will continue to do that in the human rights role,” she said in an interview with Sky News.
Asked if he wanted to comment, given he is not unfamiliar with controversy surrounding appointments after his own experience as the human rights commissioner from 2014 to 2016, Tim Wilson, who had also worked as a policy director for the IPA, which had called for the commission to be abolished pointed to this tweet:
Questions over government selection processes
But the main criticism has been around how the appointment was made – it was not advertised, and did not have an open merit-based selection process, which critics argue, bucks Australia’s international responsibilities when it comes to human rights bodies.
Finlay, who previously upheld arguments against quotas saying WA’s women Liberal candidates who are successful in pre-selections were in a “better position” than Labor party candidates, because they knew they had been chosen as the best person for the job, and not to reach “an arbitrary quota” appears to have been direct appointed by Michaelia Cash, a fellow Western Australian Liberal.
After Wilson was handpicked by the Abbott government for a commission role in 2013, the selection process for commission appointments became on the whole, more transparent.
Outgoing human rights commissioner Ed Santow was one of three commission appointments in 2016 which were made after a competitive process. Finlay’s direct appointment echoes the controversy seen when Wilson, who was informally dubbed the “freedom commissioner” was handed a commission role.
Human Rights Law Centre executive director, Hugh de Kretser has questioned the process around Finlay’s appointment.
“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,” he said.
“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. 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.”
Cash told the Australian Financial Review it was “not uncommon for significant appointments to not be advertised”.
“To suggest that Ms Finlay will be anything but a fierce advocate for human rights is completely unfounded,” she said.
But de Kretser says the government should be looking to “the internationally agreed standards for national human rights institutions”.
“These standards require a clear, transparent and participatory appointment process,” he said.
Finlay is due to begin her role in November. She’s directed all future media enquires to the commission’s media team.