Human Rights Amendment Bill

I move, That the Human Rights Amendment Bill be now read a first time. I nominate the Justice and Electoral Committee to consider the bill. The current role and structure of the Human Rights Commission was created by the Human Rights Amendment Act 2001. That Act sought to address concerns that the human rights institutions that existed at that time were small, fragmented, and complaints-driven. There was also concern that the commission’s education and advocacy roles were overshadowed by the focus on complaints. The 2001 reforms combined the Human Rights Commission and the Office of the Race Relations Conciliator into one organisation. The new Human Rights Commission included the specialised positions of Race Relations Commissioner and Equal Employment Opportunities Commissioner. This ensured that the new commission kept an adequate focus on race relations and equal employment opportunities.

The commission’s primary role is to advocate and promote respect for human rights in New Zealand. It has encouraged harmonious relations between individuals and among diverse groups. It promotes all human rights, not just the right to be free from discrimination, as was the case before 2001. I would like to acknowledge the work that the commission has done to promote and protect human rights in New Zealand. In 2004 and 2010 the commission conducted two comprehensive reviews on the recognition and respect for human rights in New Zealand. It also developed the New Zealand Action Plan for Human Rights. The commission has held two public inquiries, one with a focus on disability rights and public transport, and the other on discrimination against transgender people. The commission has advanced the rights of the disabled in New Zealand and internationally with the introduction of the United Nations Convention on the Rights of Persons with Disabilities. New Zealand was one of the first countries in the world to implement preventative mechanisms under the optional protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The commission has played a key role in this work. The commission has proven to be highly effective in its resolution of discrimination complaints, and is respected both nationally and internationally for its strong advocacy of fundamental human rights.

The commission could achieve more if we amend aspects of its founding legislation. The Government considers that the role and structure of the commission needs to be strengthened. In particular, the commission needs to be able to respond better to emerging human rights issues, and to do so in line with the Government’s focus on better results from public services. A stronger performing commission will enhance New Zealand’s ability to comply with our international human rights obligations and domestic human rights legislation. It will deliver better results for the most vulnerable groups and ensure that everyone benefits from a society that respects and understands fundamental human rights.

This bill amends the Human Rights Act 1993 to give the commission a stronger decision-making team and a clearer focus on the services it delivers. Firstly, the bill replaces the current mix of full-time and part-time commissioners with full-time commissioners only. The commission usually consists of three full-time commissioners and five part-time commissioners. On average the part-time commissioners work one-third of a full-time position each. The part-time commissioner positions were created by the Human Rights Amendment Act 2001. Each of them has done an outstanding job representing the commission and promoting human rights in New Zealand. However, the part-time nature of their positions limits their ability to carry out their roles effectively. Much of their time is spent on their governance role rather than on specific projects. This makes it difficult for the commission to adequately exercise its functions and places a heavier burden on full-time commissioners. The Government considers that having fewer commissioners who are all full time will promote more focused discussion and swifter decision-making. The bill provides for a minimum of four and a maximum of five full-time commissioners.

The second thing the bill does is to enable the commission to respond better to emerging human rights issues. The Act currently allows commissioners to work in a variety of human rights areas. However, the formal leadership roles are limited to race relations and equal employment opportunities. The Act does not allow the creation of formal leadership positions in other areas of human rights such as disability rights. To address this inflexibility the bill provides for the appointment of a chief commissioner and up to four full-time human rights commissioners. The commissioners will be appointed as general commissioners and then allocated portfolio responsibility, which must include race relations, equal employment opportunities, and disability rights as well as other priority areas of human rights. Race relations, equal employment opportunities, and disability rights generate the most inquiries and complaints to the commission. It is important that the Act emphasises these areas. It is equally important that the Act allows for the creation of other formal leadership roles so that the commission has the flexibility to deal with other priority areas that emerge in the future.

The requirement that one of the commissioners is responsible for disability issues will formalise the arrangement made last year when two part-time positions became vacant and were consolidated into a single role for an interim Disability Rights Commissioner. This role was created to implement the Government’s decision to give the commission a broad role in promoting and monitoring the implementation of the United Nations Convention on the Rights of Persons with Disabilities. Having a full-time commissioner responsible for disability issues will enable the commission to exercise that role more effectively. As a result of the proposed change to the commission structure the chief commissioner will have ultimate responsibility for ensuring that activities undertaken by the commission are consistent with its strategic direction. Previously the chief commissioner was required to act jointly with the Race Relations and Equal Employment Opportunities Commissioners. This change will strengthen the chief commissioner’s leadership role and help the commission to meet its long-term goals.

I appreciate that some sectors of the community may feel that the bill downgrades the profile of race relations and equal employment opportunities compared with the current situation. This is not the case. The leadership role of the commission protecting and promoting race relations and equal employment opportunities will remain the same. There will still be full-time commissioners leading these areas of work, but the commission will also be able to focus on the other important areas of work as they emerge.

The third area of change relates to the functions and powers of the commission. The bill provides more certainty about the commission’s mandate to undertake some activities. The bill will provide a function of promoting compliance with New Zealand’s international human rights obligations and the development of new international human rights instruments. It will clarify that the commission can express an opinion on any situation in which human rights may be infringed, including expressing an opinion about the position of the Government. It will also clarify that the commission may report on existing legislation, policies, and administrative provisions affecting human rights matters.

Finally, I want to acknowledge that the bill and the policy underlying it have been developed in close cooperation with the human rights commissioners. Their input has been invaluable and I thank them for their contribution. I commend the bill to the House.

Labour will support the referral of this bill, the Human Rights Amendment Bill, to the Justice and Electoral Committee, but we have serious reservations and concerns about it, which I am going to outline to the House today. Despite what the Minister of Justice has just said—and in having the bill go to the select committee, we will be able to tease these issues out—we do have a number of serious concerns. It should be the intention of the Government to have the agreement of the whole House on human rights legislation, and I think that is a very important matter to raise up front. So our support post the select committee will depend utterly on what we hear from the submitters.

This bill, as we read it, does two things. It enables the full-time establishment of the Disability Rights Commissioner within the Human Rights Commission, and it purports to make changes to the role and structure of the commission to “strengthen its performance.” In essence, the current number of three full-time commissioners—i.e., the Chief Human Rights Commissioner and the two other commissioners—and up to five part-time commissioners will be changed to a number of no more than five commissioners, including the chief commissioner. Our contention is that although formalising the role of the Disability Rights Commissioner is a good thing, the rest of what the bill does, or seems to do, is very worrying, on the face of it. The first significant warning sign can be noted in the regulatory impact statement, which noted that “consideration of complex, substantive human rights issues … was outside the scope”. In other words, the actual role and work of the Disability Rights Commissioner and the position of the United Nations Convention on the Rights of Persons with Disabilities—or the call for a disability Act, which some believe is required for the role of the Disability Rights Commissioner to be effective—could not be taken into account, because this bill changes the structures to be more “efficient”. Our fear is that in doing that, the actual work of these important commissioners will be watered down and weakened, and that is our major problem with this bill.

The next warning sign came from the Human Rights Commission’s media release when the bill was first introduced. While welcoming the bill, the Chief Human Rights Commissioner, David Rutherford, noted that “While the proposed changes will not affect the leadership role the Commission has protecting and promoting race relations and equal employment opportunities … the Commission will need to ensure that the proposed abolition of the specific titles of these specialised commissioners does not lead to a lessening of those roles, or the particular character and visibility of these human rights areas.” Commenting on the increase to four full-time commissioners, Mr Rutherford went on to say: “However, as there will be fewer commissioners, those who appoint Commissioners will need to ensure those in key roles reflect the diversity of New Zealand.” In other words, there is deep concern that people with generic skills and not specific skills may end up in these roles, which will affect their ability to perform their functions, and there are issues around how they may be appointed.

Some disability sector groups sounded alarm bells at the time, including the IHC. Ethnic organisations and some minority groups also spoke up about the weakening of the Race Relations Commissioner role and the absorbing of the function within the Human Rights Commission. This amendment effectively removes the three designated specialist commissioners and their functions in preference for the ability of the Chief Human Rights Commissioner to delegate all or part of these functions to one or more commissioners. So we lose the race relations brand, which was the first human rights position in New Zealand and has been very well accepted by the public. New Zealand society sought and seeks confirmation through this role, the race relations brand, that the focus will always be on positive race relations and that there is a person they can identify with to represent this focus. The same could be said about the roles of the Equal Employment Opportunities Commissioner and the Disability Rights Commissioner.

If the problem is the relationship between these commissioners and the chief commissioner, then we should have no problems with clarifying in this bill the responsibility relationship of these commissioners to the chief commissioner. The regulatory impact statement’s articulation of the problem being addressed was to do with the inefficiency and lack of effectiveness of the part-time commissioner positions, the inflexibility of the way the specialised commissioner roles were provided for in the Act, and the sometimes unclear and incomplete description of the functions of the Human Rights Commission in the Act. We think that that was what the Human Rights Commission sought, but we fear that the ministry and the Minister, in writing the amendment, have thrown the baby out with the bathwater.

This seems to be an attempt to strengthen the hand of the chief commissioner by neutralising to some extent the respect that these specialist commissioners command amongst sections of the public. The Australian Human Rights Commission maintains specialist commissioners. Our fear is that by scrapping the individual officers such as the Race Relations Commissioner, and by having the commissioners appointed as Human Rights Commissioners first and foremost and then appointed a lead portfolio, with the commissioners appointed to the priority areas of disability rights, equal employment opportunities, and race relations, this waters down those specialist functions.

These appointments will be made by the chief commissioner, and commissioners will report back to him, not to the Governor-General. The regulatory impact statement notes that a potential disadvantage of having the commissioners as Human Rights Commissioners first and foremost is that those with specialised skills and experience in certain areas such as disability or race relations may be deterred from applying, and that only generalist human rights experts may apply. So, technically, this may also mean that the Disability Rights Commissioner could be a generalist appointed to the job, could have more than one portfolio, and could be working only part time as the Disability Rights Commissioner. If that is the case, then we do have some serious issues.

Another serious concern is the potential for limiting the scope on what the commissioners can comment on. I listened carefully to what the Minister said in her speech before, and we have a number of questions that we will want addressed around this in the select committee. Under this bill, which is amending the Human Rights Act, clause 5(3) amends section 5(2) by inserting “(ca) to make public statements promoting an understanding of, and compliance with, this Act or the New Zealand Bill of Rights Act 1990”. This has the potential to limit what the Human Rights Commission and its commissioners can comment on. Clause 5(3) also removes the legislative function “to make public statements in relation to any matter that may affect … human rights”, restricting it to the amended Act or the New Zealand Bill of Rights Act 1990. So my question is whether that function of the Disability Rights Commissioner will be wide enough to tackle the important work that must be done in this area. And just to be very clear, what the bill says in theory means that the commissioners can comment only on matters relating to two Acts, rather than what has been wider in the past. For instance, I note that the United Nations Convention on the Rights of Persons with Disabilities is not referenced in this bill, so, potentially, the Human Rights Commission and the lead commissioner on disability issues might not be able to comment on this, if a narrow reading of this clause is taken.

Debate interrupted.

The House adjourned at 6 p.m.