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Human Rights Amendment Bill - Submission to the Justice and Electoral Committee [2013] NZHRCSub 8 (19 December 2013)

Last Updated: 28 June 2015

HUMAN RIGHTS AMENDMENT BILL

Human Rights Commission Submission to the Justice and

Electoral Committee

_{19 December 2013}

The Human Rights Commission (‘the Commission’) welcomes the introduction of the Human Rights Amendment Bill. The Commission supports the Minister’s initiative in promoting the legislation¹.The Bill has its origins in two discrete initiatives:

• The establishment of a full-time Disability Rights Commissioner.

• Strengthening the composition, governance arrangements, and functions and powers of the Commission.

1. Background

1.1 The Commission has recently undertaken an Organisational Review. As part of this, the Commission reviewed the statutory framework that governs the Commission, including the work of Commissioners.

1.2 The Commission sought an opinion from Russell McVeagh as part of the review process which is attached as Appendix 1. The opinion has a schedule comparing the status quo with the situation if the Bill were to pass in its present form. The Commission draws the attention of the Select Committee to the following points in the legal opinion:

• The Board of the Commission is its governing body. This Board has all the relevant statutory responsibilities set out in the Crown Entities Act and the Public Finance Act. It is also subject to State Services Commission guidance for Boards and Board chairpersons.

¹ This submission is made on behalf of the Board of the Commission and consists of the full-time and part-time Commissioners appointed under warrant by the Governor-General upon the recommendation of the Minister of Justice.

• The Commission’s Board is not, and never has been, a group of independent Commissioners. The Chief Commissioner chairs the Board but is otherwise subject to the direction of the Board, as are other Commissioners. The Board sets the strategic direction and general activities of the Commission. These are found in the Commission’s Business Plan which includes the Commission’s Statement of Intent.

• Commissioners have three distinct roles: a governance role; a strategic leadership role in areas designated in the Act or by the Chief Commissioner; and a role working alongside staff to carry out the general activities of the Commission. The term “governance arrangements” has been used to refer to both the governance and strategic leadership roles of Commissioners.

• The Chief Commissioner’s ability to designate spheres of responsibility among Commissioners has always existed, although the requirement that the Chief Commissioner consults with the Minister of Justice before making such designations was only introduced in the 2001 Amendment². The designations are intended to ensure that there is a focus on key human rights issues and population groups, such as women, GLBT people and indigenous people. The designated areas are additional to the Commissioners’ statutory appointments. For example, the Equal Employment Opportunities Commissioner is also the Commissioner with responsibility for women’s

human rights. A copy of the current designations is attached (Appendix 2).

• The fact that the Chief Commissioner designates Commissioners to play a strategic leadership role in areas other than those designated by statute means that the Race Relations Commissioner and Equal Employment Opportunities Commissioner always have other responsibilities in addition to their statutory designations. Effectively, therefore, these Commissioners are “full-time” in the sense of working full-time for the Commission but not exclusively on race relations and equal employment opportunities. This is also

² The Justice and Electoral Committee considered that amending the role to require prior consultation with the Minister on delegation of functions did not compromise the Commission’s independence but simply recognised that a degree of discussion was likely to take place. Justice and Electoral Committee: Human Rights Amendment Bill 152-2 at 8.

the case with the current 0.8 full-time equivalent Disability Commissioner who has responsibility for areas other than disability.

2. Strengthening the composition, governance arrangements, and functions and powers of the Commission.

2.1 The aim of the Bill is to strengthen the Commission’s performance by making certain changes to its functions, role and structure.

2.2 The cabinet paper³ that preceded the introduction of the present Human Rights Act 1993 (HRA) reflected concerns in the Re-evaluation Report⁴ which had been explicit about the need for the Commission to have a board (or “council” as it was described in the report), to ensure that the role and

strategic purpose of the organisation was achieved. The authors of the report considered that this could not be accomplished if those who governed the organisation also worked in it. They envisaged the part-time Commissioners playing a governance function and not having strategic leadership roles or taking part in the day to day work of the Commission. They also appear to have seen part-time Commissioners out-numbering full time Commissioners.

2.3 The explanatory note to the 2001 Amendment Bill stated that one of the aims of the Bill was to ensure that the Commissioners operated collectively to undertake and lead human rights education and advocacy, providing strategic leadership, policy, and direction to the Commission. It made some changes to give effect to a new governance structure – for example, to section 18, which spelt out the distinction between governance and management for the first time, and was designed to ensure that the day-to-day functions would be performed on behalf of the Commission by the General Manager and staff, “consistent with the focus of the Commissioners on leadership and strategic

direction”⁵.

2.4 The governance functions in the HRA were further clarified when the Crown

Entities Act 2004 (CEA) came into force on 25 January 2005. A primary

³ Cabinet Policy Committee POL (01) 100 17 May 2001: A New Institutional Framework for Human

_Rights.

⁴ _{Ministry of Justice Re-evaluation of the Human Rights Protections in New Zealand (2000).}

⁵ _{Justice and Electoral Committee, Human Rights Amendment Bill: Commentary 152-2 at 11.}

purpose of the CEA was to provide a consistent framework for the establishment, governance, and operation of Crown entities, including the powers and duties of board members. The effect of the CEA on the HRA was significant, as it clarified both the governance roles and individual duties of Commissioners as Board members.

2.5 In line with best practice, the Commission has recently reviewed its internal governance manual, which has been adopted by the Board.⁶

3. Part-time/full-time Commissioners, reduction in number of

Commissioners, plurality

3.1 As noted above, the original intention of the authors of the Re-Evaluation Report was that part-time Commissioners were to have purely governance roles. However, a number of part-time Commissioners have been given strategic leadership roles and are involved in the substantive work of the Commission. It is difficult for Commissioners who are appointed at a 0.3 full time equivalent to fulfil governance, strategic leadership roles and to be involved in the Commission’s substantive work.

3.2 Disability and race relations issues account for the majority of anti discrimination complaints to the Commission. Commissioners are not involved in the processing and resolution of such complaints, other than to identify systemic trends in the complaints received to determine the strategic direction or future general activities of the Commission. Race relations and disability issues also take up substantial amount of the advocacy and broader human rights work. As a result, almost inevitably these roles take up much of the designated Commissioner’s time.

3.3 Recruitment has started for a fifth Commissioner (up to 0.8 fulltime equivalent as allowed under the current Act), one of whose designations (which will be made by the Chief Commissioner) will be responsibility for indigenous peoples human rights (as set out in the United Nations Declaration on the Rights of

⁶ The Commission will make a copy available to the Select Committee upon request.

Indigenous People) and co-leadership of human rights aspects of the Treaty of Waitangi, jointly with the Chief Commissioner.

3.4 The Commission is aware of the concern that the potential reduction in the number of Commissioners could impact on the pluralism necessary for compliance with the Paris Principles. Compliance with the pluralism requirement is seen as enhancing an institution’s independence, credibility and effectiveness, ensuring that a National Human Rights Institution (NHRI) such as the Commission can effectively interact with all its stakeholders. One way of achieving this pluralism is by ensuring diversity in Board of the Commission.

3.5 The pluralism requirement of an NHRI is not limited to Commissioners but can be reflected in the wider membership of the NHRI. The current composition of the Commission is clear in the extract of the Commission’s Annual Report attached to this submission (Appendix 3). The Commission considers its current profile to some extent mirrors the diversity of New Zealand society, but acknowledges a deficit in the number of Pacific people and people with lived experience of disability working in the Commission. Rectifying this is something that the Commission has in mind in its recruitment strategy.

3.6 The Commission notes that the Bill does not amend or repeal section 11 of the HRA, which outlines the characteristics that are mandatory in appointing Commissioners and designed to ensure diverse membership. It follows that the changes proposed in this Bill are, in the view of the Commission, unlikely to undermine the requirement of pluralism.

4. Designation/Role specificity

4.1 At present, the Act provides for a Chief Commissioner and two Commissioners with a statutory designation – a Race Relations Commissioner and Equal Employment Opportunities Commissioner and up to five part-time Commissioners. As noted above, the Act also provides for the Chief Commissioner to designate other areas of strategic leadership for Commissioners, including to Commissioners with a statutory designation.

Currently there are three full-time Commissioners, one 0.8 part time Commissioner and two 0.3 full-time equivalent Commissioners⁷. The current EEO and Race Relations Commissioners were appointed this year under the current Act, and will see out their five year terms under the transitional provisions.

4.2 The term of the current Commissioner with responsibility for Disability Issues expired in March 2013 (18 months after his appointment), and has been continued as provided for in the Act. The Minister has advised the Commission that it is her intention to recommend to the Governor-General that the term of the current Commissioner is extended so he serves a five year term from the date of appointment. The Chief Commissioner had asked the Minister to consider the extension to ensure the continuity of the disability work. The Commission is grateful for the action the Minister has taken in this regard following consultation with the Minister of Disability Issues. With no certainty that the Bill will pass through all its stages next year, this brings an important stability and continuity to the Commission’s work on disabled people’s rights.

4.3 The Bill will dispense with the specialised statutory titles of Race Relations Commissioner EEO Commissioner but there will be a mandatory requirement that certain Commissioners will lead in the priority areas of race relations, EEO and disability. In recommending a person for appointment to one of the priority areas, the Minister must have regard not only to the criteria in section

11 but also the additional criteria in clause 9 (new section 13). Recruitment to the relevant positions will emphasise the skills and qualifications necessary to perform these roles. Designation to areas other than race relations, EEO or disability will be discretionary and made by the Chief Commissioner after consultation with the Minister, as is the case at present.

4.4 The Explanatory note to the Bill states that “No major substantial change of the specialised Commissioner roles is intended and in practice these Commissioners can continue to operate as usual”. Since it will be mandatory

⁷ A fifth, up-to-0.8 Commissioner is likely to be appointed in 2014. This Commissioner will also see out their term due to the transitional provisions.

to have designated Commissioners for race relations, EEO and disability, it is unclear what would be lost by retaining the titles. However, if the statutory titles are to be removed, then the Commission recognises that, at least initially, a significant effort will need to be made to inform and educate the public (particularly key stakeholders and partner groups in each population and issue group) about the specialist roles, and the fact that in practice, the focus of the previous statutory designation is not lost. There will also need to be better communication about the designations held by the various Commissioners currently, so there is greater awareness of the coverage provided by the Commission among the Commission’s various audience groups.

5. Disability

5.1 The establishment of a full-time position of a Disability Rights Commissioner was a major reason for amending the Act given New Zealand’s commitment to the United Nations Convention on the Rights of Persons with Disabilities and the Commission’s role in monitoring its implementation. The Commission remains strongly supportive of the role and welcomes the amendments to section 5(1) that will make it explicit that the promotion of the human rights of

persons with disabilities is a primary function of the Commission⁸.

5.2 However, the Commission also reiterates that it has never been the case that individual Commissioners have focused solely on their statutory designation. There has also always been some element of designation of additional strategic leadership by the Chief Commissioner. The present Disability Rights Commissioner, for example, also has responsibilities for the areas of violence and abuse and the human rights of older people –both areas which overlap with the human rights issues of persons with disabilities.

5.3 If the disability community sees what is proposed as a retreat from the commitment to establish a full-time role (despite what is said in the Explanatory note) it will be important that in making an appointment that the

⁸ Having said that, the current Disability Rights Commissioner has expressed a desire to work 0.8 full- time equivalent, even if it was possible to be appointed “full-time”.

Minister takes into account suitability for the role in terms of the criteria listed in clause 9 (new section 13).

6. Augmented section 5 functions

6.1 The Bill aims to clarify a number of the general functions of the Commission, principally in relation to New Zealand’s international human rights obligations. We have already indicated our support for the amended primary functions, but have two concerns that should be addressed:

i. The first is relatively minor and relates to the use of “diverse” in section

5(1)(b) and what will be the new section 5(1)(c). For some people, the existing section 5(1)(b) is seen as reflecting the race relations role that was subsumed in the 2001 Amendment. This was not in fact the case. The section 5(1)(b) function applied to all the various groups in New Zealand society, not just different races. While section 5(1)(c) is clearly intended to reflect the race function, there could be some confusion if the same word is used in both sections. We suggest this situation might be avoided by replacing the word by replacing the “diverse” in subsection (b) with the word “different.”

ii. The second issue is more profound and relates to the Commission’s role in promoting the rights of indigenous people. The UN Declaration on the Rights of Indigenous Peoples adopted by New Zealand in 2007 provides a set of human rights standards that apply to indigenous communities. There is no formal provision for monitoring the Declaration. An international meeting of experts in Bangkok in December 2009 which included the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, representatives of the Expert Mechanism on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues, addressed the role of NHRI’s in promoting the implementation of the UN Declaration. It concluded that NHRIs had a critical role to play in protecting and promoting the rights of Indigenous peoples at the national and local level. This aligns with the Commission’s practical experience in New Zealand. On this basis, the Commission believes it would be anomalous if the Commission’s primary

functions did not involve promoting the human rights of indigenous peoples.

6.2 Many of the other changes to section 5 are consistent with suggestions that the Commission has made in the past, often out of concern at the lack of an adequate process for vetting proposed legislation and policy for compliance with New Zealand’s international human rights obligations. At present, the process simply involves checking to see whether what is proposed does not breach New Zealand’s international obligations. If the Ministry of Justice considers that there is no breach raised, no further analysis or action is undertaken. This is particularly concerning in relation to the economic, social and cultural rights which are always open to the claim that there is adequate compliance because of the concepts of progressive realisation and limited resources.

6.3 The Commission’s recent experience – for example in relation to the Canterbury earthquakes and our interventions before the Court of Appeal in the Atkinson and CPAG cases – is that proposed legislation and policy could greatly benefit from more stringent analysis of the human rights implications and impacts by officials . This is of concern, not only to the Commission, but also the various international treaty bodies which have repeatedly raised it in their recommendations following the reporting process Since there is currently no formal statutory requirement to promote and monitor New Zealand’s compliance with its international human rights commitments, the proposed section 5(2)(kc) would provide an avenue for remedying this. It would also ensure a more consistent approach to both the treaty body reporting process and follow up on the recommendations.

6.4 We also welcome the augmented section 5(2)(c) function which would mean that the Commission would be able to comment on NZBORA compliance of proposed legislation from a more formal position⁹.

⁹We note in this regard that the Constitutional Review Committee specifically noted the public concern at the fact that legislation that was non-BORA compliant could be passed and lack of wide spread understanding at what was entailed in the section 5 justification process.

6.5 The ability to report to the responsible Minister (not just the Prime Minister) on any existing legislation, proposed legislation or administrative provision under section 5(2)(ka) is a welcome extension to the Commission’s functions and, in a sense, complements the ability to seek a declaration of inconsistency from the Human Rights Review Tribunal (the Tribunal).

6.6 The Tribunal can determine that an enactment breaches section 19 of the NZBORA (i.e. the right to be free from discrimination), but under section 92J, the only available remedy is that the Minister responsible for the administration of the enactment must report the fact that an inconsistency has been found to the House, together with advice on the Government’s response.

6.7 There have only been two occasions on which a declaration has been granted

- Howard v Attorney General ¹⁰ (in which the legislation was going to be changed despite this) and Ministry of Health v Atkinson & Ors¹¹ (to which the government’s response was to change the relevant legislation to justify its position and prevent any further complaints). Given the time and cost that are

almost inevitably involved in litigation, it would be preferable to be able to identify discriminatory legislation (or legislation that infringed other human rights) and negotiate a suitable compromise position in advance. Hopefully this would be possible under the new section 5(2)(ka).

7. Conclusion

7.1 The Commission supports the purpose of the Bill, subject to the following matters being addressed:

i. The reference to “diversity” in section 5(1)(b) is replaced with

“different”; and

ii. Consideration is given to adding the promotion of indigenous rights to the primary functions of the Commission.

¹⁰ _{[2008] Decision No. 10/08 Reference No. HRRT 15/06.}

¹¹ _{[2012] NZCA 184 (14 May 2012).}