Human Rights Amendment Bill - Submission to the Justice and Electoral Select Committee - Further advice [2014] NZHRCSub 5 (25 February 2014)

Last Updated: 28 June 2015

TO: Human Rights Commission (David Rutherford)

FROM: Russell McVeagh (Andrew Butler)

DATE: 24 February 2014

_{SUBJECT: Human Rights Amendment Bill 2011}

Introduction

1. You have asked us to comment on certain aspects of the Human Rights Amendment Bill

2011 ("HRA Bill").

2. In particular, you have asked us to comment on the introduction of the concept of "priority areas" and the possible implications of the enactment of proposed s 8(1B), which reads as follows:

A Commissioner must lead the work of the Commission in any other priority area that is designated by the Chief Commissioner, and the Chief Commissioner may designate an area of work as a priority area only after consultation with the Minister and the other Commissioners.

3. Our advice proceeds as follows:

(a) suggested amendments to the HRA Bill;

(b) description, in brief form and at a high level, of the Crown's relationship with the Human Rights Commission ("Commission"), as governed by, inter alia, the Human Rights Act 1993 ("HRA") and the Crown Entities Act 2004 ("CEA"); and

(c) explanation, in brief form and at a high level, of the rationale for the amendments to the HRA Bill.

4. We assume that all readers of this advice will be familiar, to some extent, with the HRA Bill and the provisions of the CEA and the HRA.

Suggested amendments

5. We suggest the following amendments to the HRA Bill:

(a) amend proposed s 8(1A) so that it reads "... appointed to lead the work of the

Commission in each of the following priority areas spheres of responsibility ... "; (b) remove proposed s 8(1B);

(c) ensure that throughout the HRA Bill all references to "priority areas" are to Commissioners appointed under s 8(1A) to lead the work of the Commission in the listed spheres of responsibility (disability, equal employment opportunities, race relations);

(d) amend current s 15(1)(c) (proposed s 15(e)) so that it reads "to allocate spheres of responsibility among the Commissioners in a manner consistent

with the strategic direction of the Commission and the appointment of

Commissioners under s 8(1A), and to determine the extent ..."; and

(e) amend proposed s 16(2) so that it reads "... is subject to directions given by the Chief Commissioner in the exercise of his or her responsibilities under section 15(b), (c), and (d) and (e).

Crown's relationship with the Commission

6. The Commission's independence from the Crown is a requirement of the United Nations General Assembly resolution known as the "Paris Principles". We note that the Commission has been successfully reviewed twice on its independence by the ICC Sub- Committee on Accreditation.

7. The relationship between the Commission and the Crown is governed by the HRA and the CEA.¹

8. Section 7(1) of the HRA relevantly states:

Subject to the role of the Minister in the process of setting and monitoring the strategic direction and targets of the Commission under Part 4 of the Crown Entities Act 2004, the members of the Commission acting together determine the strategic direction and the general nature of activities undertaken in the performance of the Commission’s functions.

9. Part 4 of the CEA provides that the Minister of Justice's role is to participate in determining aspects of the content of the Commission's statement of intent² and to receive other administrative reports.³

10. The Minister also has a range of other roles in relation to the Commission, including: (a) a supervisory role;⁴

(b) recommending the appointment, in accordance with specified criteria, of Commissioners (and, where appropriate, area specific Commissioners such as the Race Relations Commissioner) to the Governor-General;⁵ and

(c) a consultation role when the Chief Commissioner is allocating spheres of responsibility among the Commissioners and determining the extent to which Commissioners engage in activities undertaken in the performance of the Commission's functions.⁶

11. Importantly, however:

(a) as an independent Crown entity, the Commission is "generally independent of government policy";⁷

¹ We note the State Sector Act 1988 and the Public Finance Act 1989 are also part of the legislative environment which the Commission operates within. We also note that the statutory reporting and accounting framework is in a transition phase, while the Crown Entities Act 2013 comes into force at different times.

² _{CEA, ss 145 and 147.}

³ _{CEA, ss 146 (statements of intent), 150(1)(b) (annual reports), and 154 (financial statements).}

⁴ _{CEA, s 27.}

⁵ _{CEA, ss 28 and 29; HRA, ss 11-14.}

⁶ _{HRA, s 15(1)(c).}

⁷ _{CEA, s 7(1)(a).}

(b) the Minister of Justice is not empowered to direct the Commission to give effect to government policy;⁸

(c) except as expressly provided otherwise, the Commission "must act independently in performing its statutory functions and duties, and in exercising its statutory powers, under" the HRA;⁹ and

(d) the CEA does not empower the Minister of Justice to direct the Commission, or a member, employee or office holder of the Commission:¹⁰

(i) in relation to a statutorily independent function (which, for the Commission, includes the matters set out in paragraph 11(c) above and the functions of the Commission set out in s 5 of the HRA (and, accordingly, the setting of the Commission's strategic direction to perform those functions)); or

(ii) requiring the performance or non-performance of a particular act, or the bringing about of a particular result, in respect of a particular person or persons.

Rationale for amendments

12. In our view, the amendments proposed above are prudent for a number of reasons.

Independence / accountability balance

13. One of the risks that appears to arise on the wording of new s 8(1B) is that the delicate balance between securing Commission independence and securing appropriate accountability for the discharge of the Commission's functions might be upset (if it were thought that the Minister had an increased role in directing or setting the Commission's priorities). The suggestion of extension of Ministerial control could be problematic, for example, for reviews by the ICC SCA.

14. On balance, therefore, we would recommend that, since we understand that is not what the drafters of proposed s 8(1B) were seeking to achieve, the most prudent course would be to delete proposed s 8(1B) and make the other, primarily consequential, amendments referred to above.

Role confusion

15. In addition, the proposed s 8(1B) suggests that the Chief Commissioner has the role of designating "priority areas" of work. If, by priority areas of work, or the designating of priority areas of work, the HRA Bill means to cover all or some of the same space as the concept of the Commission's determining of the "strategic direction" - referred to in current s 7(1) - then the subsection creates role confusion: under the current HRA, the process of setting the Commission's strategic direction is not that of the Chief Commissioner, but rather of the board of the Commission acting together.

⁸ _{CEA, s 105.}

9. HRA, s 19(1)(a) (note that the Commission does not have the same independence obligations in relation to its functions, powers or duties granted by the CEA - refer s 19(1)(b) HRA).

¹⁰ _{CEA, s 113.}

Concept confusion

16. The interplay of proposed ss 8(1A) and 8(1B) with current s 15(1)(c) of the HRA is unclear. Section 15(1)(c) provides that the Chief Commissioner has the function to "allocate spheres of responsibility [to Commissioners] ... in consultation with the Minister".

17. Proposed ss 8(1A) and 8(1B) introduces a new, confusing, concept of "priority area" in conflict with the concept of spheres of responsibility. Accordingly, we propose that the term "spheres of responsibility" be used throughout the HRA to ensure consistency. That necessitates an amendment to proposed s 8(1A) and current s 15(1)(c) / proposed s 15(e) (to ensure that the Chief Commissioner's allocation of spheres of responsibility under s 15(1)(c) is undertaken in a manner consistent with the appointment Commissioners under proposed s 8(1A)).

Statutorily appointed area specific Commissioners / Commissioners allocated spheres of responsibility by the Chief Commissioner in consultation with the Minister

18. We note that the current process used by the Chief Commissioner to allocate spheres of responsibility is a formal one, requiring a proposal by the Chief Commissioner and consultation with the Minister. In our view, that process provides sufficient flexibility for the Chief Commissioner to, in a manner consistent with the strategic direction of the Commission as set by the board and after consultation with the Minister, create new portfolios of interest. The addition of a further formalised process for such appointment by way of proposed s 8(1B) appears, on that basis, unnecessary.

Ongoing appointments of specialist Commissioners

19. On our suggested amendment, the Minister would retain responsibility for appointing the Race Relations, Equal Employment Opportunities and Disability Commissioners in accordance with ss 28 and 29 of the CEA and proposed s 13 of the HRA ("Further criteria for the appointment of Commissioner appointed to lead Commission work in priority areas spheres of responsibility"). That would avoid discouraging those with specialist skills from applying and emphasise the importance of those specialist roles.

20. In addition, when recommending persons for appointment as other Commissioners (ie not the Race Relations, Equal Employment Opportunities or Disability Commissioner) and applying the relevant criteria (under current s 11(1) of the HRA), we would expect that the Minister would consult with the Chief Commissioner, among others, on a range of matters including potential (or necessary) spheres of responsibility. Any relevant information could then be fed into the appointment process as well as the decision by the Chief Commissioner to allocate a sphere of responsibility (in accordance with the strategic direction and in consultation with the Minister).

21. Please let us know if you would like to discuss the matters addressed further.