1 SUBMISSIONS ON THE HUMAN RIGHTS (AMENDMENT) BILL 2001
To: The Justice and Electoral Select Committee
INTRODUCTION
1. YouthLaw Tino Rangatiratanga Taitamariki is a community law centre, located in Auckland, vested under the Legal Services Act 2000. We provide a free, nation-wide legal service to people aged below 25 years. Our service includes the provision of advocacy, advice, information and legal education in the form of publications and outreach work, to young people.
2. The principles contained in the Treaty of Waitangi and the United Nations Convention on the Rights of the Child („UNCROC‟), are central to our Code of Ethics. We are strongly committed to the furthering of human rights awareness in New Zealand. We accordingly appreciate the Committee‟s consideration of our submissions on the Human Rights Amendment Bill 2001 („the Bill‟). We set our submissions out below:
CONSTITUTIONAL IMPACT OF THE HRB
3. There has been considerable debate stimulated by the Ministry of Justice Discussion Paper on the Re-Evaluation of Human Rights about the constitutional implications of the expiry of section 151 of the Human Rights Act 1993 („HRA‟) on 31 December 2001. Specifically, the debate has focused on how the repeal will affect the interface between the New
2 Zealand Bill of Rights Act 1990 („BORA‟) and the HRA, in terms of primacy in their application to Government.
4. Part IA of the Bill addresses this issue and attempts to clarify the application of the Bill to acts of discrimination by Government, related persons or bodies, or persons or bodies acting with legal authority. To do this, Section 20G of the Bill incorporates the statement of section 19 of the BORA into its statutory framework. Section 19 of the BORA states:
19 (1) Freedom from discrimination Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
(2)
Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.
Section 20G of the Bill uses section 19 of the BORA as the standard for which alleged acts of discrimination by Government and associated bodies and persons are to measured against. Such actions must be “inconsistent” with the right conferred by section 19. They are not required to be unlawful under the BORA itself.
5. We consider that this creates an unusual statutory loop between the BORA and the HRB, as section 19 is itself measured against the antidiscrimination provisions of the HRA. The effect is to render section 19 redundant (save to discrimination per sections 22,23 and 61 to 63, which are accorded exemption by section 20H(2) of the Bill). Section 20G is significantly broader in its application to Government and its legal agents than section 19. This is due to section 20G(a) incorporating section 3 of the BORA for this purpose and in addition, section 20G(b) providing that it applies to persons or bodies acting with legal authority.
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6. Section 20J provides limitation for the application of Part 1A of the Bill to Government and related persons and bodies. To do this it also incorporates the provisions of the BORA, namely section 5, which provides:
Justified limitations Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. However, whilst section 20J uses the limitations of section 5 of the BORA, subsection 20J(3) of the Bill provides that, “to avoid doubt”, an act or omission by Government (and its legal agents) that is inconsistent with section 19 of the BORA constitutes discrimination under Part 1A of the HRB “even if it is authorized or required by an enactment.” This seems to over-ride section 4 of the BORA in its application to acts in breach of section 19. Section 4 of the BORA states:
Other enactments not affected No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),— (a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b)
Decline to apply any provision of the enactment— by reason only that the provision is inconsistent with any provision of this Bill of Rights.
IMPACT ON YOUNG PEOPLE
8. These issues aside, we consider that whilst the drafting of Part 1A of the Bill is somewhat convoluted which, if enacted in its present form, may result in confusion in its administration, it does serve to strengthen antidiscrimination law in its application to Government. However, this will also be achieved by the expiry of section 151 of the HRA, without the need to
4 plug the BORA into the Bill. A stand-alone limitation provision could be added to the Bill to provide limits on the liability of Government to antidiscrimination law without the need to import section 5 of the BORA.
9. Thus the overall impact of Part 1A of the Bill on young people is positive because it broadens the scope of anti-discrimination law to include acts of Government and its legal agents. Young people are particularly vulnerable to direct or indirect systemic discrimination, due to their age and corresponding difficulties in being heard or accessing information.
10. We consider that the ideal would be the entrenchment of the BORA. The existence of an entrenched, supreme Charter or Bill of Rights would resolve the primacy debate and guarantee fundamental rights and freedoms to all its citizens, including children and young people. Whilst we continue to make do with the incumbent piece-meal framework of civil liberties and human rights, uncertainties about the constitutional status of these fundamentals will perpetuate.
STRUCTURAL CHANGES TO THE HRC
11. Following the recommendations of the Discussion Paper, the changes to the Human Rights Commission that are proposed in the Bill are anticipated. The two most significant changes appear to be the integration of the Office of the Race Relation Conciliator with the HRC, and the establishment of a separate Office of Human Rights Proceedings, headed by a Director of Human Rights Proceedings replacing the existing role of the Proceedings Commissioner.
12. The current separation of the RRO from the HRC seems to have its impracticalities, given that the functions of both agencies are derived from
5 the same legislation and the resulting unnecessary cost of running both services. It has also been cited as being confusing to the public.
13. The integration of the RRO into the HRC will place issues of racial discrimination onto the same continuum as other issues of discrimination. Whether or not this is appropriate is up for debate. The incumbent separation of offices seemed to signify that racial issues are necessarily worthy of specialized focus, as racism is probably the most destructive form of discrimination to our national harmony. It stands alone from other areas of discrimination for this reason.
14. The proposed integration under the Bill, however, places the issues of racism as a priority over other discrimination issues to be dealt with by the HRC. It may strengthen the effectiveness of the RRO by shifting the focus from conciliation to enforcement. This is indicated, in part, by the
appointment of a full-time Race Relations Commissioner distinct from the five part-time commissioners under section 8 of the Bill. This may or may not have the effect of pushing other issues of discrimination deemed more socially irrelevant, such as age-related matters for example, into relative obscurity. However, whatever the structure, we consider that it is important that racial issues be accorded the necessary resources available to effectively promote racial understanding and harmony in New Zealand.
15. We consider that the separation of the proceedings function from the Commissioners‟ functions will probably render complaints proceedings more efficient than at present. The replacement of the Proceedings Commissioner with the Director of Human Rights Proceedings also helps to delineate between duties of policy and function. This distinction has become blurry in the HRC and perhaps has caused operational inefficiencies.
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16. We support the fact that the Office of the Commissioner for Children has not been integrated with the HRC and has recently been provided with greater resources by the Government. Children‟s issues often take a backseat to adults‟ issues, despite their inherent vulnerability. The retention and strengthening of the CFC‟s Office indicates that New Zealand values and protects the rights of children and young people and recognises them as of distinct concern. In addition, the CFC is an important agency in facilitating understanding, and acceptance, of UNCROC in New Zealand.
POWERS AND FUNCTIONS OF THE HUMAN RIGHTS COMMISSION (HRC)
17. The proposed amendments to the functions and powers of the HRC under section 5 of the Bill are significantly expanded. The amendment divides the incumbent section 5(1) of the HRA into two subsections. Section 5(1) establishes the primary functions of the HRC. They are:
(a) to improve understanding and appreciation of the role of human rights
in New Zealand society; and
(b) to encourage the maintenance and development of harmonious
relations between the diverse groups in New Zealand society.
These primary functions are like a mission statement, and provide the basis for the specific operational functions outlined in subsection 5(2). This is significantly different to the current section 5, which lists the operational functions of the HRC without reference to any primary objectives.
18. As stated above, subsection 5(2) of the Bill lists the operational functions of the Commission. Many of the functions listed in this subsection retain those in section 5(1) of the HRA. The changes that are apparent establish more proactive functions. Subsection 5(2)(a) requires the HRC to
7 advocate for, respect for and observance for human rights. This expands the section 5(1)(a) of the HRA, which requires that the HRC just “promote” these principles. 19. Subsection 5(2)(c) broadens the HRC‟s current function to make public statements on matters affecting human rights and compliance with the HRA to incorporate public statements on BORA compliance. This is consistent with the purpose of Part 1A of the Bill. It underlines the role of the HRC, under the Bill, as a BORA watchdog over acts and policy of Government. 20. Subsections 5(2)(h) and 5(2)(i) are new and relate to the HRC‟s power to bring proceedings. They also illustrate the intention of the Bill to develop the HRC into a more proactive agency.
21. Subsections 5(2)(k) has added significance given the imminent arrival in New Zealand of refugees from Afghanistan and the racial/religious tensions that have occurred in the wake of the terrorist attacks on the US and following events.
22. Subsection 5(2)(l) requires the development of a national plan of action („NPA‟) in consultation with “interested parties”. To do this the HRC will need to gather a representative mandate through effective consultation and support from NGOs and community groups for the NPA to be readily accepted through the wider community. It is important that the public sees the NPA as having some non-governmental basis so that concepts of human rights are seen as having inherent application to the individual, irrespective of Government.
23. The remaining functions are virtually unchanged from the HRA. The function under section 5(1)(g) to inquire into any matter where human
8 rights are, or may be, infringed, remains. This power has been seldom used to date. Whilst this should not be used frivolously, it serves as a powerful proactive function. If this function is utilised more readily by the HRC, it would serve to both indicate to the public that human rights are proactively protected by the HRC and educate the public on the application of these rights through legal process in situations where infringements are occurring.
24. In summary, whilst the functions and powers of the HRC are expanded under the Bill, a positive factor for protection of human rights in New Zealand, it will remain to be seen what the practical impact of these changes will be on the functioning of the Commission.
GROUNDS FOR DISCRIMINATION 25. We are disappointed that section 21 of the HRA has not been amended by the Bill to expand the grounds for discrimination of age to include under 16 year olds. We can see no practical reasons for this exception remaining. Broadening the grounds of age discrimination will not affect legal thresholds that apply to young people, as they will be subject to the test of justifiable limitation under section 20J.
26. We submit that the HRA be amended so as to account for complaints regarding discrimination on the basis of age by complainants ages under 16 for the purpose of compliance with UNCROC. Any other general principles or legislative examples that allow differential treatment of people must be justified by the incorporation of these factors in their statutory framework and have sound basis in established affirmative action policy or have a cogent practical social basis.
9 THE COMPLAINTS FUNCTION OF THE HRC
27. The complaints function of the HRC has been amended significantly by Part III of the Bill. Part III places emphasis on facilitation of a complaint through the provision of information and mediated dispute resolution processes. Section 77 states that the HRC must provide these services to a complainant.
28. We support these changes. The process of dispute resolution in the Employment Relations Authority may be an appropriate model from which the new complaints process be derived. Initial conciliation in the shape of mediation should serve to force parties to the table promptly, so as to deal with the issues whilst they are still fresh and facilitate a quick settlement. It would be essential for the conciliation service to be well resourced, and for the appointed conciliators to have a good conceptual and legal understanding of human rights law.
29. Section 79 of the Bill provides the grounds for complaints to be dealt with by the HRC. Subsection 79(2) reflects the plugging of section 5 of the BORA under section 20J. We consider this to be problematic. The section 5 BORA test for justified limitation is not a simple test, nor should it amount to a judgment call. It therefore should not be used as a blanket ground of exclusion for all initial complaints. Valid complaints could be denied the front-end services they require to be resolved if they are excluded from HRC intervention by section 79(2). This highlights the problematic nature of Part IA of the Bill in its present form.
30. However, a broad discretion for the HRC not to involve themselves in a complaint is conferred by section 80(c) of the Bill. Furthermore, remedies that are available under other processes, other than a petition to Parliament or an Ombudsman Complaint can also justifiably exclude the
10 HRC from taking action on a complaint. Whilst we can appreciate the need to fetter the grounds for complaint to a degree that will weed out improper complaints and focus the resources of the HRC towards serious ones. However, we hope that this process is exercised with due consideration for each individual complaint, to avoid the risk of the blanket exemption of certain categories of complaint.
PROCEEDINGS
31. Section 92B of the Bill establishes Human Rights Review Tribunal (HRRT) proceedings. This Tribunal replaces the incumbent Complaints Review Tribunal, and will hear proceedings brought by either the HRC or a complainant for breaches of Part IA and II of the Bill. The Director of Human Rights Proceedings has control over the cases that appear before the Tribunal, with a power to refer them back to mediation where appropriate. The Director also has the discretion to determine whether or not the complainant will be accorded representation by the HRC in Tribunal proceedings, subject to the considerations listed in section. Overall, the HRRT process is an expansion on the CRT, with more flexibility for complainants to enter into proceedings on their own terms, due to their right to representation by their own legal counsel.
32. We support section 92C(2), which provides that the HRRT may direct that a complainant aged below 16 be accorded representation where appropriate. This will allow young people to gain greater access to the Tribunal and ensure that their human rights issues are heard adequately. This is consistent with the right of the child under UNCROC to be heard and participate in proceedings that affect them.
33. We support section 92E of the Bill, which allows the HRC to issue proceedings in the HRRT following an inquiry pursuant to section 5(g) of
11 the Bill. This significantly strengthens the HRC‟s power of inquiry, and should serve as a deterrent against human rights breaches. 34. The Bill also increases the HRC‟s access to other Courts. Section 92H gives the HRC a broad right to appear and be heard in the mainstream Courts. This right is qualified by the requirement that the HRC do so only to facilitate the performance of their function under section 5(2)(a) of the Bill, that is, to advocate and promote observance and respect for human rights. We consider that due to the subjective nature of this consideration, the frequency of the Commission appearing in Court will depend on both the internal policy of the HRC, and the external political climate (in particular Governmental ideology).
35. Remedies available to a complainant against a private defendant are effectively the same as those available under the HRA. The only remedy that is available to a complainant taking an action against Government and its legal agents under Part IA of the Bill, is a declaration which does not affect the validity of the inconsistent practice or legislative provision. However, if the declaration survives appeal, it must be brought to the attention of the House of Representatives via the responsible Minister, who must also prepare a report outlining advice to the Government on the matter. Whilst the political implications of this for the defendant may be damaging, we consider that this is a weak remedy for complainants, as it does not compensate them for any loss they have suffered as a result of discrimination or affect an immediate change to the discriminatory practice. This will be particularly true for complainants bringing actions against bodies such as schools, which are not directly part of Government and are managed by an external entity (such as state schools, for example). In this context, the question of whether or not the prospect of a declaration would deter Government agents from discriminatory practice will have to remain to be seen.
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John Hancock
For YouthLaw Tino Rangatiratanga Taitamariki 27 September 2001