Ardern Jacinda: Human Rights Amendment Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Human Rights Amendment Bill — In Committee[Sitting date: 24 May 2016. Volume:714;Page:11180. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): I think we need to be absolutely clear about what Minister Adams has and has not done with her amendments to this bill. This bill does not simply reinstate positions that were removed and everything is back to the status quo. The current legislation allows for there to be up to three full-time and up to five part-time commissioners and for the flexibility to appoint around what those roles need to be. Of course we have added the Disability Rights Commissioner the specific role and we applaud that. Obviously it means that we would then have four commissioners. But what this bill does is it means that we could essentially end up with fewer commissioners than what the original Human Rights Act allowed us to have. I want to be absolutely clear. Thank you Minister for your Supplementary Order Paper 175. We support the Supplementary Order Paper. It was the right thing to do to reinstate those specific designations but the bill still has not changed the fact that the commission will consist of the Chief Human Rights Commissioner and no fewer than three and no more than four other commissioners. Even if they take the maximum we will still have fewer commissioners. That is a matter of fact.I am yet to see a rationale from this Government as to why we would want to reduce the representative roles that commissioners have within the Human Rights Commission. Why would we want to reduce their capacity? They have always used their flexibility appropriately in that regard. They have sometimes used their part-time roles as a 0.3 and up to a 0.5 according to what the needs of the commission were. But it seems suspicious to me that at the same time there have been criticisms that the chief executive of the Human Rights Commission is drawing a salary that required as I understand a special exemption from the State Services Commission. At the same time as we are drawing higher salaries for our chief executives we are reducing the number of commissioners. So I am somewhat suspicious about that. Unless the Minister can tell me that she fully exhausted all of the rationale as to why we would not want to give the capacity to have the same number of commissioners as we have now then I will remain suspicious as to why we are doing that—unless I hear some rationale as to why we would reduce that representation. That is one of the reasons that we have had concerns and previously had opposition to this bill. Thank you for the designations but I still have significant suspicions.Perhaps the Minister might want to rise and if she is perhaps suggesting that this is not an issue of concern why is there not a Supplementary Order Paper that at the same time as she has included the specific designations reinstates the number of commissioners that it is possible to have? It was one of the options canvassed by the regulatory impact statement. It looked at just simply retaining that flexibility. In fact one of the whole reasons we had this bill in the first place was a complaint that there was a lack of flexibility for the commissioners to be appointed. Well now we have got a situation where the Minister rightly has said we will have a specific Equal Employment Opportunities Commissioner we will have a specific Race Relations Commissioner and we will have a specific Disability Rights Commissioner. Actually if you include the Chief Human Rights Commissioner in there we could end up with nothing else—nothing else.Minister  I would really appreciate some rationale from you perhaps; maybe if not that a commitment that any budget saved would be going back into representative work and not just higher salaries or a Supplementary Order Paper on the Table saying that actually there is no point reducing the number of commissioners and that you will maintain what was the status quo. I look forward to some response from the Minister in that regard because it is significant. It may seem like we are just removing some flexibility but we of course had grave concerns with taking out a designated title so why would we not have concerns with removing the discretion in the future to appoint a commissioner in an area that becomes of substantive concern? I have already raised an example of where down the track it would be potentially useful to have that ability from the human rights commissioner.There has also been raised the issue of consultation with the Minister. Even though there is some specification within the Human Rights Act 1993 around consultation—that is in specific reference it reads to me to the commissioner’s allocation of portfolios—in this particular amendment bill it is very clear under Part 1 clause 6(1B) where it states: “A Commissioner must lead the work of the Commission in any other priority area that is designated by the Chief Commissioner and the Chief Commissioner may designate an area of work as a priority area only in accordance with the strategic direction and the general nature of activities determined by the Commission under section 7(1) and after consultation with the Minister and the other Commissioners.” That reads to me that both the strategic direction and the designation of roles could therefore be determined with the Minister.I know it has been stated that consultation—consultation—means that the commissioner can come in and inform. I have seen the word “consultation” used in those relationships before. Let us be really clear because I have heard for instance the Law Commission which I doubt anyone in this Committee would think feels under the thumb of the Government at all say at select committee that even though it has the ability to set its own agenda in terms of the work that it does it knows there is no point in bringing to the Minister—in consultation with the Minister for its work programme—something that is not within their political orbit or their political priorities. So there is a self-filtration that happens when you are required to consult—even though it is the word “consult”—that means entities naturally will not bring something that they consider to be unpalatable in case it gets taken off the agenda and just dismissed. If it is simply a matter of being informed then call it that. Let us be specific that it is actually just that they have to notify the Minister. The word “consult” is very different to the word “notify” and I have no doubt that a human rights commissioner who is obliged to consult is therefore likely to take on board the feedback that is given by that Minister when it comes to allocating any potential new commissioner roles.I thought that this amendment bill could have been a perfect chance to reflect back on the Paris principles which were passed by the United Nations General Assembly on 20 December 1993 which set out the status of national institutions—basically what should it look like when a country sets up a human rights institution? What are the really core principles to make sure you establish a proper robust human rights institution? It says in the Paris principles that a national institution “shall be vested with competence”. It should be given “as broad a mandate as possible”. I think that is interesting: “A national institution shall be given as broad a mandate as possible which shall be clearly set forth in a constitutional or legislative text”. So although we want to specify composition and sphere of competence actually allowing that flexibility that we talked about in those roles which we lose in this bill is a core principle of the Paris principles. It also talks about submitting any human rights concerns to the Government “on an advisory basis either at the request of the authorities” or at the exercise of its own power.But all the way through right down through I found particularly Minister the methods of operation—the framework that the national institution shall freely consider any questions falling within its competence whether they are submitted by the Government or not; hear any person; address public opinion; and establish working groups from among its members as necessary. All of these fundamental principles talk about the need for it to maintain that independence. There was a prime opportunity with this review of the Act to sit back and ask: are we upholding the Paris principles to the very best of our ability? And if there is any concern that embedding principles around consultation may be misinterpreted by a commission to be more than advising or informing then perhaps we should change our language. Perhaps we should look at the kind of language that embeds independence.In fact if we really were taking a first-principles review why would we not set up at the same time a select committee within our Parliament to review human rights on a regular basis to ensure that we are upholding those important institutions within New Zealand? It has been recommended. I think there are good grounds for it. That is the kind of first-principles debate we should have been having when this amendment bill was put forward and in fact when the Ministry of Justice in 2010 established its review in the first place—going back and ensuring that we were trying to uphold those principles that we signed to in Paris in 1993.