Dialogue: Making bite match bark is a fulltime occupation

By Peter Hosking

24.08.2001

Planned changes to the Human Rights Commission threaten the watchdog's independence and its ability to be taken seriously, writes Peter Hosking.

We tend to be complacent about human rights protection, but when the state restructures our human rights watchdog we need to prick up our ears.

Last week, the Government introduced legislation to remodel the Human Rights Commission. The commission is to be encouraged to bark louder, but is in danger of losing its bite.

There is much that is good in the new bill. Encouraging the commission to focus more on education and advocacy, and amalgamating the Race Relations Office and the Human Rights Commission, make sense provided the commission is given enough resources to do its work.

The removal of Government exemptions from human rights scrutiny is also a considerable advance, as is the development by the commission of a national human rights action plan to chart the Government's human rights objectives and ensure they are monitored and evaluated.

But the bill contains proposed changes that would seriously impair the commission's independence and its ability to be taken seriously in raising human rights compliance.

First, the commission will no longer investigate and uphold or reject complaints. All it will do is try to help the parties to solve their problem, through robust conciliation and other resolution methods.

The commission is 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. Inevitably, this will undermine its authority and credibility and, hence, its capacity to educate and advocate about human rights.

Despite the emphasis in the new legislation, conciliation is not new to the commission. It already effects settlements in more than 90 per cent 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.

In recent years, as it has moved resources to human rights education, the commission has emphasised conciliation more and more. As a result, compensation levels have fallen considerably. Under the bill's proposals, these will drop further.

Compensation is not the only indicator of the robustness of the outcome of a complaint, or even the most important. But it tends to reflect the relative strengths of the parties in the conciliation process, something that in the past has been evened up through an independent investigation of the complaint by the commission.

Under the new bill, if conciliation by commission staff is unsuccessful, a complaint will be referred to a director of proceedings who has to decide whether to refer the matter to the renamed Human Rights Review Tribunal, or leave complainants to take their grievances there themselves.

The director will need to undertake an investigation to ascertain just what happened, something much more difficult at that late stage when the evidence trail is cold and the respondent's defences alerted.

Overall, the proposed approach for complaints will undermine the commission's authority, result in fewer complaints being resolved and, despite the claim that the process is publicly financed, mean far more complainants will have to take their own proceedings at the Human Rights Review Tribunal to have their rights upheld.

A second area of concern is that the number of commissioners is to be reduced to two full-timers (the Chief Commissioner and the Race Relations Commissioner). There will also be up to five part-timers, although they will essentially be board members.

The best guarantee of effective human rights protection is a fearless commission prepared to stand up to the government of the day when rights are under threat.

This needs a diverse group of commissioners with security of tenure (so they cannot be removed by disgruntled ministers) and credibility and experience across the full range of human rights. And while their expertise might be concentrated in particular sectors (women, disability and so on), their role is to protect all human rights, of all New Zealanders.

This is not something that can be done by part-time people a few hours a month at a board meeting. Inevitably they will have time to represent only their own sector, which will mean those groups not directly represented at the board table will tend to be, and certainly feel, overlooked.

And part-time commissioners will have their main vocation and interests elsewhere, undermining their own commitment to the commission. When it comes to a human rights showdown, other influences may undermine their resoluteness.

Reducing the impact of commissioners is matched by transferring power to the staff. Under the guise of, quite sensibly, separating governance from management, commissioners are to have no role at all in complaints and only a broad oversight role of the commission itself - setting strategy, broad objectives and so on.

They will not control their staff, just supervise and liaise with them, as the bill has it. The tail will wag the watchdog.

But as well as being independent, commissioners need to be accountable. This can happen in various ways, through the commission's annual report, parliamentary scrutiny of the commission's performance, and also publicly, especially through the media.

How can commissioners be held accountable for the performance of the commission if their staff, who manage and carry out their policies, are not accountable to commissioners?

Typically a successful human rights commission has three components: effective people, a good law and enough money to do the job.

New commissioners with impressive human rights expertise have been appointed, and over the years a professional staff has been developed. The new law, suitably improved as it proceeds through Parliament, will be more than adequate. Which leaves funding.

Throughout the 1990s, the commission endured a sinking lid that has eroded its effectiveness. Human rights education and advocacy do not come cheaply and the Government's own credibility will be at stake if it does not match its reforms with the funding to do the job.

The commission costs us $1.25 a head each year, which is little enough. With its new responsibilities, it will need that amount at least doubled.

There are enough ministers with human rights credentials in the cabinet to ensure that this happens. That will be the real measure of this Government's commitment to improving human rights protection.

Peter Hosking, a Human Rights Commissioner from 1988 to 1996, is executive director of the Human Rights Foundation. Find out more about the Author.