Human rights law change ‘repugnant’

The head of the swamped Human Rights Review Tribunal has described proposed measures to ease its workload as “repugnant” and “constitutionally improper”.

Tribunal chairman Rodger Haines has been grappling with a rising workload, with cases doubling since 2014 and a stagnant budget.

The extent of Haines’ frustration was revealed by Stuff last month after it gained access under the Official Information Act to letters sent by the chairman to new Justice Minister Andrew Little.

“Access to justice is being denied to almost all. For a tribunal charged with protecting human rights the situation is ironic, to say the least.”

He also wrote to previous Justice Minister Amy Adams on several occasions asking for an urgent law change.

Haines has not held back from that position in his public submission to the Law and Order Select Committee on the Tribunals Powers and Procedures Legislation Bill, ramming home the point that nothing has been done to fix the issue.

The bill is part of a raft of amendments aimed at modernising the courts system. One part of the bill regards changes to the tribunal.

“Not only is this proposal contrary to the scheme of the Human Rights Act, it is wrong in principle, involving as it does the delegation of judicial powers. It is also wholly unnecessary, inefficient and retrograde.”

Haines reiterated that for the past three years he had been doing the work of five full-time decision-makers and for most people, the tribunal had ceased to function.

“Given the egregious delays in the hearing and deciding of cases, it is unquestionable that litigants before the tribunal are being denied access to justice and the prompt determination of their fundamental human rights.

“The steep increase in the tribunal’s workload has been known to the Ministry of Justice for some number of years and from 2016, as chairperson, I have been writing to successive Ministers of Justice seeking their assistance.”

But he also raised concerns with what he regards as a flawed fix that has been suggested.

The tribunal’s current structure requires a chairperson to sit on every case, accompanied by members of a 20-strong panel made up of individuals from a range of backgrounds.

While the chairperson has to be a barrister or solicitor of the High Court with at least five years experience, and therefore appointed by the Governor-General, the panel members do not and are appointed by the Minister.

The bill, which was introduced by the previous government, would allow chairperson powers to be delegated to a panel member and therefore increase the number of cases that could be heard.

In his submission Haines said appointing people with such powers and turning the panel into a pool of de facto chairpeople was a mistake.

“Not only is this proposal contrary to the scheme of the Human Rights Act, it is wrong in principle, involving as it does the delegation of judicial powers. It is also wholly unnecessary, inefficient and retrograde.”

It would also mean panel members could no longer sit as additional members of the High Court in relation to tribunal matters, as it would be “constitutionally improper”.

“By removing the separate legal entity of the panel and reformulating the functions of the panel members, the dual role of the panel is jeopardised, imperilling the scheme of the Act and opening the proposed legislation to a challenge on the grounds that the new provisions are repugnant to the principal Act.”

Haines suggested a better option was something he had been requesting for some time: a simple change to the law that allowed the appointment of deputy chairpeople.

Lawyer Graeme Edgeler said the more he read Haines’ submission the more he agreed with it, although it would require additional funding.

“His suggestion to just appoint a couple more people, or deputy chair, makes a lot of sense to me, to be honest.”

Another option was to completely redesign the tribunal to work like other similar bodies such as the Parole Board, where everyone was a member, or have a second panel who could be appointed to the High Court if needed, he said.

Haines was unavailable for an interview.

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