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The Human Rights Commission as intervener in legal proceedings

30 June 2017 - By Janet Anderson-Bidois

One of the Human Rights Commission’s important, but lesser-known, roles is to intervene in legal proceedings in order to assist performance of its primary statutory functions. Two recent cases demonstrate how the Commission has intervened successfully in cases of significant public interest in order to promote the recognition, application and protection of important human rights principles.

Cartoon publication

Wall v Fairfax New Zealand Ltd [2017] NZHRRT 17 involved a claim filed in the Human Rights Review Tribunal by the MP, Louisa Wall, alleging that two cartoons published by Fairfax Media promoted racial disharmony and breached section 61 of the Human Rights Act 1993.

Interior view of the New Zealand Supreme Court
Matthew McMenamin and Dr Andrew Butler
(foreground at right) in the Supreme Court representing
the Human Rights Comission as intervener in
Brown and Sycamore v New Zealand Basing Limited.

Both cartoons depicted groups discussing the benefits of free school breakfasts, which had recently been introduced in low decile schools. The individuals in each group were drawn in an unflattering manner and included members who were clearly intended to be of Māori or Pasifika ethnicity. The cartoons were slightly different but the members in both groups were portrayed as welcoming the free food initiative because it would provide them with more money to spend on alcohol, cigarettes and gambling.

Ms Wall claimed that both cartoons met the legal test set out in section 61 in that they were threatening, abusive or insulting and likely to excite hostility against, or bring into contempt, any group of persons on the basis of their colour, ethnicity, race or national origins.

In a decision delivered nearly three years after the hearing took place, the Tribunal concluded that although both cartoons were clearly insulting, they did not breach section 61 and their publication was not unlawful. The Tribunal noted that the right to freedom of expression is one of the most essential elements in a democratic society, but it accepted that expression that advocates racial disharmony or hatred against a group of persons on the basis of their immutable characteristics is harmful to the achievement of the values of a democratic society which respects human dignity, equality and fundamental freedoms, including the right to be free from discrimination.

However, the Tribunal was of the view that an “overbroad” interpretation of section 61 would unreasonably limit freedom of expression and it concluded that the cartoons did not breach the relevant legal threshold. This conclusion accorded with the approach taken by the Commission in relation to Ms Wall’s original complaint and the position advanced by the Commission during the Tribunal proceedings. The Tribunal, in its decision, explicitly noted the substantial assistance provided by the Commission and the helpful and objective submissions that were advanced.

Prisoners’ right to vote

In Attorney-General v Taylor [2017] NZCA 215 the Court of Appeal dismissed an appeal by the Attorney-General against a declaration of inconsistency issued in the High Court. Heath J made the original declaration in proceedings brought by prison inmate and lay litigant Arthur Taylor and four prisoners who lost the right to vote following the introduction of the Electoral (Disqualification of Prisoners) Act 2010.

Heath J determined that the 2010 legislation, which extended the existing voting prohibition to prisoners sentenced to terms of less than three years’ imprisonment, was inconsistent with the right to vote affirmed and protected in section 12(a) of the New Zealand Bill of Rights Act 1990. He issued a declaration of inconsistency to his effect.

The Crown appealed the decision, arguing that there was no jurisdiction to make such a declaration. Intervening at the appeal stage, the Commission, via counsel Andrew Butler, strongly advocated in support of the High Court’s jurisdiction to issue a declaration and argued that the importance of such a remedy in constitutional and human rights litigation could not be overstated. The Commission was also of the view that the High Court was correct to exercise the jurisdiction in the circumstances of the particular case.

In dismissing the Crown’s appeal the Court unequivocally confirmed the jurisdiction of the higher courts of New Zealand to make a declaration of inconsistency between legislation passed by Parliament and the provisions of the New Zealand Bill of Rights Act 1990.

Other interventions

These two important decisions follow successful interventions by the Commission in cases as diverse as the Terranova pay equity case (Terranova Homes & Care Ltd v Service and Food Workers Union [2014] NZSC 196, [2015] 2 NZLR 437, 10 HRNZ 332), the Atkinson and Spencer related claims brought by individuals who provided unpaid care to disabled family members (Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456, 9 HRNZ 572; Spencer v Ministry of Health [2016] NZHC 1650, [2016] 3 NZLR 513) and the successful claim by Adoption Action Inc in relation to discriminatory provisions of the Adoption Act 1955 (Adoption Action Inc v Attorney-General [2016] HRRT 9).

The Commission also participated in the High Court application made by Lecretia Seales who unsuccessfully sought a declaration that would have permitted her to receive assistance from a medical practitioner to end her life. In that instance, the Commission adopted a neutral position on the question of physician-assisted dying and concentrated on the application of core human rights principles such as the rights to life, dignity and personal autonomy and the technical application of sections 4, 5 and 6 of the New Zealand Bill of Rights Act in the human rights context.

Basis for Commission role

The statutory basis for the Commission’s role as an intervener is found in section 5 of the Human Rights Act. The primary functions of the Commission include:

  • Advocating and promoting respect for an understanding of, and appreciation of human rights in New Zealand society,
  • Encouraging the maintenance and development of harmonious relationships between individuals and diverse groups,
  • Promoting racial equality and cultural diversity,
  • Promoting equal employment opportunities (including pay equity),
  • Promoting and protecting the full and equal enjoyment of human rights by people with disabilities.

One of the additional functions of the Commission is to apply to any court or tribunal to be appointed as an intervener or counsel assisting or to take part in proceedings in any other way if, in the Commission’s opinion, taking part would facilitate the performance of the Commission’s human rights protection, promotion and education functions. The Commission also has the ability to intervene, as of right, in Human Rights Review Tribunal Cases, whether these are initiated by the independent Director of Human Rights Proceedings or by the applicant directly.

Role of intervener

The University of Auckland Centre for Human Rights Law, Policy and Practice has recently received a Law Foundation Grant to complete a project aimed at promoting greater understanding of the role of the intervener and how interveners can better support public interest issues before the Courts. The Centre will consider the role of the intervener in New Zealand and other jurisdictions and will develop guidelines and recommendations for the legal profession and NGO sector to better support strategic legal interventions to promote the public interest. The Commission will be following the project with interest.

The Human Rights Commission has developed a solid record as an intervener and has carried out this function through utilising the skill of its small in-house legal team and specialist external counsel when required. The Commission is always looking for potential opportunities that will assist it to advance human rights jurisprudence and fulfill its statutory mandate to promote and protect human rights. Any practitioners who are aware of existing or pending cases that could be appropriate for the Commission to consider are encouraged to contact the Commission’s Chief Legal Adviser to discuss further.


Janet Anderson-Bidois janetab@hrc.co.nz is Chief Legal Adviser to the Human Rights Commission.

Last updated on the 30th June 2017