It’s been an “enormous privilege” to have had some role to play in the first 10 years of jurisprudence under Part 1A of the Human Rights Act 1993, says the former Human Rights Review Tribunal chair Royden Hindle.
Mr Hindle recently stepped down from that role after nearly a decade.
The current tribunal initially emerged as the Equal Opportunities Tribunal under the Human Rights Commission Act in 1977, which became the Complaints Review Tribunal in 1993 and then the Human Rights Review Tribunal in 2002.
The name change coincided with a broadening of its statutory power. The tribunal was given first instance jurisdiction to declare if public functions and legislation met the anti-discrimination standard enshrined in the New Zealand Bill of Rights Act 1990 (NZBORA).
This relatively new human rights watchdog has never garnered a great deal of attention, according to Mr Hindle, who led the tribunal from 2002 to 2011.
“It’s always seemed to me to be odd that the underlying constitutional potential of that jurisdiction has not had the same kind of attention, as, for example, the question of whether or not the High Court has the power to declare legislation to be inconsistent with the Bill of Rights Act,” the former Simpson Grierson partner says.
“Of course it’s a very narrow silo. It’s the anti-discrimination right, not any other rights. But even so there is much more writer’s ink spilt over whether or not the High Court might, or might not, have power to declare inconsistency – than the fact that the tribunal does,” he says.
“Certainly if you compare the way the corresponding reforms were written up in England where it was really characterised as a constitutional sea change.”
The remedy in relation to legislation is reasonably straightforward. If the tribunal finds an act of Parliament inconsistent with NZBORA, the relevant governmental agency has to report the tribunal’s decision to Parliament. Parliament then has the responsibility of deciding if and how they’re going to fix it.
“Behind this there is a very neat idea which is characterised in the Canadian and the UK jurisprudence as ‘a dialogue’,” Mr Hindle says.
“The reason this appeals to me is that it is not described any more in terms of a debate about whether or not Parliament is sovereign or whether the judicial system has some overriding inherent jurisdiction. It is about getting the policy settings right.”
However, while there may not have been much written about the role of the tribunal as a declarer of human rights inconsistencies, its rulings have come under public scrutiny.
InMacMillian v Department of Corrections [2004] the tribunal awarded compensation to Andrew Ronald MacMillian, who at the time was serving a life sentence for the brutal killing of a teenage girl.
The decision led to scathing opinion pieces and newspaper reports. The 23 August 2004 nzherald.co.nz headline ‘Hurt feelings’ win killer $1200 compensation indicates public perception of the verdict.
These cases can serve as a lightning rod for difficult issues that attract public probing and controversy, Mr Hindle says.
“The tribunal becomes a focal point to discuss some of these difficult issues. [It] suffered a considerable amount of adverse public comment about having awarded compensation to prisoners”
“But in the end there were no appeals from the tribunal’s decisions. Instead there is an initiative to change the legislation.”
Following the more recent decision in AB v Ministry of Social Development [2011] NZHRRT 16, Minister of Justice Simon Power tabled the Prisoners’ and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill, which provides that any compensation awarded to a prisoner and not paid to the direct victims must be used to fund general services for victims of crime.
Although he has chosen to return to his roots as a barrister and arbitrator at Bankside Chambers in Auckland, Mr Hindle speaks enthusiastically about his time with the tribunal.
This article was published in LawTalk 785, 4 November 2011, page 6.