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2. Institutional Changes
- The Foundation supports the inclusion of the Race Relations
Office in the redesigned Human Rights Commission. Essentially
this completes the process begun in the Human Rights Amendment
Act 1993 when the Complaints Division was created and given
jurisdiction (with the Race Relations Conciliator as a member)
over race complaints investigated by Race Relations Office staff.
The Race Relations Conciliator has been a member of the Commission
since 1977 and we believe that Conciliators have benefited from
the collegial support that this structure has provided. Further,
the 1993 amendments improved decision-making around race complaints
considerably and led to improved investigation processes in
that office as well. We support all discrimination complaints
including race being dealt with by one team in the new Human
Rights Commission.
- We consider that the position of Race Relations Commissioner
as a full-time member of the Human Rights Commission is essential
to provide specific leadership (for both the institution and
the community) on race matters and to mentor staff working in
the race relations area.
- The logic that led the Ministerial Review on which the Bill
is largely based to recommend the consolidation of the Race
Relations Office and the Commission appears not, however, to
have been applied to the Privacy Commissioner. Not only is this
Commissioner to continue with a stand-alone agency, which we
support, but the Commissioner is no longer to be a Human Rights
Commissioner, which we do not. In the past, both the Commission
and the Privacy Commissioner have, we believe, benefited from
the linkage established by the Privacy Act in 1993 under which
the Privacy Commissioner is also a Human Rights Commissioner.
- The Health and Disability Commissioner is in a similar situation.
The Cartwright Report which gave rise to the position actually
recommended that the Health Commissioner be a Human Rights Commissioner,
a proposal which was not adopted by the government of the day
for reasons which have not been articulated. With a separate
code, like the Privacy Commissioner, the position lends itself
to a similar relationship with the Human Rights Commission.
In the Foundation's view, the Health and Disability Commissioner
should be a Human Rights Commissioner but retain a separate
office.
- For similar reasons the Foundation agrees with the proposals
in the discussion paper produced by the Ministerial Review in
relation to the Children's Commissioner. A rights-based approach
is needed in this area but children's rights are not so distinct
from other human rights that they need a separate protection
regime. However, the position of Children's Commissioner should
be retained (in addition to any children's focal point or unit
in the larger institution) and this Commissioner should be a
full-time Human Rights Commissioner.
3. Structure of the Human Rights Commission
- The Foundation does not support the new structural arrangements
for the Human Rights Commission, which are essentially based
on the part-time "governance council" recommended by the Ministerial
Review which preceded the Bill. We consider the existing model,
with so-called "figure-head" Commissioners as leaders and governors,
should be continued, if necessary in a modified form. The Commissioner
model is well established in the New Zealand institutional make-up,
which includes not just a number of Commissions like the Law
Commission and the Commerce Commission but similarly-independent
bodies like the Ombudsman and the Commissioner for the Environment.
This mechanism is very effective in creating a focal point for
civil society and the official sector alike, and while it will
always be partly dependent on the individuals concerned, in
recent years the development of a more formal staff structure
at the Human Rights Commission under a general manager has mitigated
this dependency.
- Several statements were made in the Ministerial Review team's
discussion paper in support of the need for a new structure.
First, it was said that the public reputation of some of the
[existing] agencies was relatively poor. No research was done
to support this contention, which was simply said to be the
view of "many stakeholders". Yet a poll done by the business
weekly NBR in 1997 determined that the public "overwhelmingly
supports retention of the… Human Rights Commission, the
Race Relations Office and the Privacy Commissioner". Eighty-one
per cent of those polled thought the Human Rights Commission
should be retained and 55% said it was doing an excellent or
good job, compared with 24% who said it was doing a poor or
not that good a job.While doubtless encouraging an improved
performance of all the institutions, the poll does not support
the contention that there is a widespread view that the institutions
need replacing or are performing poorly.
- The discussion paper also claimed that to improve performance
of the Human Rights Commission it was necessary to separate
governance from management and operations. By and large this
already occurs at the Commission and has for a number of years.
Policy direction is the responsibility of the Commissioners,
acting together, and operations are the responsibility of staff,
under the leadership of the General Manager. We make further
comments below about the relationships proposed by the Bill
between Commissioners and the staff.
- In support of its recommendations about the role of Commissioners
(which have by and larger been incorporated in the Bill) the
discussion paper on which the Bill is based refers to staff
comments that changes in direction or direct interference by
Commissioners create confusion and resentment. It goes without
saying that the responsibilities and accountabilities of Commissioners
must be explicit and effective. It is undoubtedly true that
the involvement of Commissioners in the day-to-day operations
of the organisation must be limited to leadership in particular
projects or campaigns where their profile can be utilised, final
decision-making on human rights policy issues (including complaints)
and to mentoring staff. "Interference" in the line management
of the Commission is quite inappropriate and will certainly
undermines any institution's effectiveness. In the past where
this has become a problem (perhaps with new Commissioners learning
their proper role) it has been dealt with by the Chief Commissioner
and the Commission as a group. If this was a problem in the
Human Rights Commission at the time of the Ministerial Review,
it may have reflected that the organisation had not had a Chief
Commissioner for about a year. However, it was certainly not
a situation that called for the radical solution recommended
by the Ministerial Review team. Nor would it, by itself, justify
devising the completely new organisational framework for human
rights protection that is represented by the Bill.
- For several reasons, the Foundation does not support the model
of part-time members with the only full-time Commissioners being
the Chief Commissioner and the Race Relations Commissioner.
- First, it is unlikely that part-time Commissioners will be
seen to have the necessary degree of independence. While their
personal characteristics and the skills and experience that
led to their appointment will include human rights expertise,
it is their income-earning and community activities, which is
where they will continue to devote the bulk of their time and
energies, that are likely to define the level of their human
rights commitment, in the public mind if not in their own. This
may not be a problem for Commissioners appointed from relatively
independent institutions like universities but it will be extremely
difficult for people who are employees of or in management roles
in other organisations to differentiate their independent role
on the Commission. The same can be said of those part-time members
who come from an NGO background, who will inevitably be seen
to be representing their own group on the Commission rather
than representing their sector or, more importantly, accepting
a responsibility for protecting all the human rights of all
New Zealanders. It seems inevitable that conflicts of interest
will arise regularly for such part-time members.
- Secondly, by committing to a lengthy period as a Commissioner
and being dependent only on the Commission for their income,
full-time members assure their commitment to their organisation
and their independence. The independence of the members of a
human rights institution is the fundamental building block for
effectiveness. This is firmly emphasised in the relevant international
standards (the Paris Principles) and practices that have been
developed for national human rights institutions. It is hard
to see how part-timers could develop a comparable level of independence.
- Thirdly, although the Ministerial Review team refers in its
discussion paper to the Australian experience and there was
a visit to the Australian Commission to "hear the experience
of the individuals involved in its evolution", there is no mention
in the discussion paper of the fact that the first human rights
commission in Australia (1982 - 1986) was, in fact, a part-time
body. It was because this structure was not effective that the
new Human Rights Commissioner in 1986 restructured the system
to provide for full-time Commissioners and despite other changes
in the Australian Commission since then, the full-time tenure
of its Commissioners has continued.
4. Demarcation between Governance and Management/Operations
- The Bill contains far too much detail in elaborating the governance/operational
responsibilities within the Commission and the result is a great
deal of confusion. The relevant clauses are 7, 14, 15 (in relation
to the Race Relations Conciliator) and 16. These need greatly
simplifying. The provisions dealing with the relationship between
the Chief Commissioner and the General Manager are especially
unclear.
- This confusion is carried through to the Bill's attempts to
separate the complaints function from the advocacy/promotion
role, with the former largely being the responsibility of the
Director of Human Rights Proceedings. This appears to be based
on the view of the Ministerial Review team that it is not possible
in the one human rights institution to give effective attention
to both the regulatory function and the advocacy/educational
one. In the Foundation's view, this analysis is flawed. In fact
there are three, not two, major roles of all national human
rights institutions meeting the standards set out in the Paris
Principles - these are education, complaints and advisory. In
the New Zealand Human Rights Commission this third function
has until now been undertaken via a number of internal structures
and is currently the responsibility of a policy unit headed
by the senior lawyer on the staff. It is the role exercised
by the Commission when it makes submissions on proposed legislation
and in the monitoring required by the Human Rights Amendment
Act 1999 and the Consistency 2000 exercise.
- These three functions co-exist in most national human rights
institutions. Each role informs the other. When the complaints
team finds that it is processing a number of similar complaints
that lend themselves to a systemic solution, the policy team
becomes involved. When the education team is active in the community
it acts as a conduit for complaints. All education material
requires scrutiny by the policy team for accuracy and appropriateness.
Equally, when the policy team develops a set of guidelines the
education team takes over the job of promoting them.
- While it is the staff, in their teams and overseen by the
General Manager, who process complaints, implement the Commission's
promotional strategies and develop human rights policy advice,
policy decisions about all these functions need to be the responsibility
of Commissioners. The Bill seems to contemplate this in relation
to the educational and advisory roles, but removes Commissioners
from the complaints process entirely, as we read s 76. If the
same approach were to be applied to the Ombudsman, the Ombudsman
would not make decisions on complaints. We think this will lead
to a dysfunctional organisation and recommend that Commissioners
retain their policy-making role in relation to complaints. This
will enable coherence to be maintained with policy, education
and advocacy. Doubtless it is theoretically possible through
a complex set of interrelationships for policy-making in the
complaints area to be fulfilled by the structure the Bill proposes,
(the "independent" Director of Human Rights Complaints and the
Human Rights Review Tribunal) but the Foundation considers it
is neither efficient to do so, nor will it be effective. Moreover,
this part of the Bill appears to run counter to the theme in
the Bill of reducing the number of human rights institutions
to improve overall efficiency and accessibility.
5. Complaints
- As indicated above, the Foundation does not support the removal
from the Commission's functions of the investigation of complaints,
nor the rationale that the complaint process impairs the ability
of national human rights institutions to address promotional
issues. In fact the opposite is true. Often the only way in
the past that the Commission has been able to have some employers
and service providers respond positively to its human rights
messages is when these organisations become the subject of complaints.
It is only then that these organisations can be persuaded to
meet the (modest) compliance costs required by the legislation
in establishing sexual harassment programmes and systems to
ensure equal opportunity in employment, for example.
- Under the Bill, the Commission will no longer investigate
and uphold or reject complaints, just endeavour to assist the
parties "solve their problem", through conciliation and other
dispute resolution methods. The Commission is set up as the
country's expert body on human rights, yet it is to be prevented
from saying whether human rights have been violated in particular
circumstances. In the view of the Foundation, this will undermine
the Commission's authority and credibility and, hence, its capacity
to educate and advocate about human rights.
- Conciliation is not new to the Human Rights Commission. It
already effects settlements in over 90% of the justified complaints
it receives. But often it is not possible to get the parties
to negotiate meaningfully until the Commission has investigated
the allegations and formed a view whether there is substance
to them. Without this crucial step, mediation gets bogged down
in wrangling about what has or has not happened. This is particularly
so in sexual harassment complaints where respondents are often
in denial.
- Under the Bill, if conciliation by Commission staff is unsuccessful,
a complaint is referred to the Director of Human Rights Proceedings
who has to decide whether to refer the matter to the renamed
Human Rights Review Tribunal, or leave complainants to take
their grievance to the Tribunal themselves. The Director will
need to undertake an investigation to ascertain just what happened,
and to adequately discharge the criteria for deciding whether
to proceed to the Tribunal, something which will be much more
difficult at this late stage when the evidence trail is cold
and the respondent's defences alerted.
- Despite the claim that the complaints process is to be publicly
funded, as it is now, the Foundation believes that many complainants
will find themselves having to take proceedings before the Tribunal
if they wish to secure a satisfactory outcome to their complaint.
This occurs only rarely at present. Most complaints are resolved
before they reach the Tribunal and few complainants take proceedings
there themselves.
- The underlying theme of the criteria set out in cl 92 (2)
to be taken into account by the Director in deciding whether
to issue proceedings before the Tribunal is whether this step
would be in the public interest. Complainants will find this
difficult to establish where the circumstances that have given
rise to the complaint are essentially personal to them. Respondents
will therefore have an incentive to "hold out" during conciliation
since the complainant may not be able persuade the Director
to take proceedings before the Tribunal and will therefore have
to meet the cost of doing so themselves.
- Overall, in the Foundation's view, the approach proposed for
complaints in the Bill will undermine the Commission's authority,
result in fewer complaints being resolved, and see far more
complainants faced with the dilemma of settling for an inadequate
outcome or having to take their own proceedings at the Human
Rights Review Tribunal to have their human rights upheld.
6. Human Rights and the Treaty of Waitangi
- The report of the Ministerial Review team noted what it called
the "strong case" for improving understanding the linkages between
the Treaty of Waitangi and human rights. It considered it "unfortunate"
that the human rights dimensions of the Treaty and the relationship
between these and domestic and international law have received
little attention. The Review team identified broad support for
the view that the Treaty of Waitangi marks the beginning of
constitutional government in New Zealand or is the country's
founding constitutional document. The Review team recommended
that the Human Rights Act be amended to give the Commission
the specific function of encouraging discussion on the relationship
between the Treaty and human rights. Yet the Bill is silent
on any reference to the Treaty other than the requirement in
Cl 11(1)(a)(ii) that Commissioners, between them, should have
knowledge of or experience in the Treaty. This seems somewhat
pointless when the Commission is not given any functions in
relation to the Treaty.
- The Foundation considers that the Ministerial Review team's
recommendation is the minimum that should be done to acknowledge
the human rights implications of the Treaty of Waitangi. As
an official institution, the Commission is bound by the Treaty.
Over the years a number of attempts have been made to ensure
that the Commission takes a Treaty-based approach to ensuring
the adequate delivery of its services to Maori. Various structures
have been developed but feedback from Maori has generally indicated
that successive Commissions have not been able to entrench an
awareness in Maoridom of the relevance of the Commission's role.
In the Foundation's view, this could be overcome by a specific
reference to the Treaty in the Commission's legislation (perhaps
in the long title) and the specific function recommended by
the Ministerial Review.
7. Provisions supported by the Foundation
- The Foundation particularly supports adding the development
of a national human rights action plan to the Commission's functions,
provided this is accompanied by sufficient resources and a firm
commitment by the Government to implement the plan once developed.
New Zealand has undertaken a wide range of responsibilities
under international human rights treaties but their implementation
needs careful coordination and the national plan should provide
a blueprint for making human rights central to policy development
here. However, any such plan will need monitoring and evaluation,
functions that should also reside with the Human Rights Commission.
We recommend the amendment of Cl 5(2)(l) to enable the commission
to have these ongoing roles in relation to the plan.
- Encouraging the Commission to focus more on education and
advocacy also makes sense and really reflects the direction
taken by the Commission in recent years. This is, of course,
provided the Commission is given adequate resources to do its
work. We note the absence of any such requirement in the new
Bill, despite its inclusion in the founding statutes of a number
of national human rights institutions in other countries.
- The Foundation also agrees with the approach that there should
be a single standard for discrimination by the Government, and
especially supports the provision for there to be a "declaration
of inconsistency" which must be brought to the attention of
Parliament along with the Government's response to the declaration.
The Foundation also supports the more limited exemption for
immigration matters contained in Clause 37.
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