The Justice Minister has made the appointment of new human rights commissioners “a matter of priority” – but he needs to get the headhunting right, Peter Hosking writes.
Justice Minister Andrew Little has moved quickly on the report by retired Judge Coral Shaw into the Human Rights Commission’s handling of sexual harassment complaints – making the appointment of new commissioners “a matter of priority”.
But it is important he, and Parliament, get these important appointments right and we should be looking to the best practices worldwide to find and endorse non-political and independent people.
The terms of three of the four commissioners have expired or are about to and the review recommended the recruitment process for any new appointments be commenced “without undue delay”.
Before making new appointments, however, there are a number of issues that need to be addressed. The Review recommended the position and person descriptions of the role of commissioners be “reviewed and consulted on widely… in accord with the Paris Principles” (these are international standards for the roles, functions and structures of national human rights institutions like the Human Rights Commission).
Noting the commissioner appointment process wasn’t clear, Judge Shaw also recommended it be formalised in a policy document. At present, there seems to be a panel of three senior officials who advertise for and interview applicants, and make recommendations to the minister. There is some consultation with the commission. The minister gets Cabinet approval before the Governor-General makes the appointments.
This process has major shortcomings, not the least of which is that appointments are made entirely by the Executive. There is no input from the Opposition or Parliament and, recently, ministers have overridden the officials’ recommendations. This politicisation of the process is entirely inappropriate for positions meant to be completely independent of the government. A more bipartisan approach can be expected to avoid the kind of controversy that has accompanied some appointments.
This has been a bone of contention for the Human Rights Foundation (a non-government organisation) for some time. At the last stocktake of New Zealand’s human rights performance by the United Nations in 2014, the HRF proposed the appointment process should provide for the involvement of Parliament, possibly as one responsibility of a parliamentary select committee on human rights. The foundation pointed out that controversy around appointments to the commission served to undermine both the ability of these commissioners to fulfil their responsibilities (given their need to maintain a high profile in the media in order to promote human rights) and the credibility of the commission itself.
There are many examples of a bipartisan approach. In the Maldives, a parliamentary committee scrutinises proposals by the President and recommends appointments. In India and Bangladesh, an appointments’cCommittee includes the Speaker and the Opposition. Indonesian commissioners are appointed by Parliament itself, with no involvement of the Executive. In Fiji, the President is required by law to consult with the Leader of the Opposition before making an appointment.
This issue was picked up by the UN, resulting in a recommendation that New Zealand “consider participation of the Parliament in a human rights commissioner’s appointment process”.
Unfortunately, this recommendation was one of the few not accepted by the government of the day. But it has been referred to again in this latest review, with the Judge recommending consideration be given to whether the commissioners should be officers of Parliament, similar to the Ombudsman, Auditor-General and Office of the Parliamentary Commissioner for the Environment.
This would require legislative change, which may not be possible before the current appointments need to be made, but there is nothing stopping the minister consulting the Opposition informally, as was the practice in the distant past.
Another pressing issue in relation to commissioner appointments is the involvement of non governmental organisations or NGOs in the process. There used to be an NGO representative on the appointments panel, but this is no longer so. This position should be reinstated.
NGOs are part of the commission’s accountability mechanisms and elsewhere are closely involved in helping commissions to develop and implement policy and in their education programmes. In New Zealand in recent years, this has been honoured more in form than substance, with the notable exception of some race relations initiatives. NGOs are often heard to complain of the commission’s lack of visibility and general unwillingness to cooperate in their human rights advocacy.
Our Human Rights Commission was established in 1978, the first in the region. Its role is crucial for equitable governance, no less so in the current and widely acknowledged democratic deficit. Getting the commission’s appointment process right is fundamental, and now urgent.
Peter Hosking was a human rights commissioner a long time ago. Until recently he undertook consultancies for the United Nations on human rights issues