Human Rights Amendment Bill

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Explanatory note

General policy statement

The Human Rights Amendment Bill amends the Human Rights Act 1993 (the Act). The purposes of the Bill are to enable the establishment of the position of a full-time Disability Rights Commissioner within the Human Rights Commission (the Commission) and to make changes to the role and structure of the Commission to strengthen its performance.

Disability Rights Commissioner

New Zealand ratified the United Nations Convention on the Rights of Persons with Disabilities on 25 September 2008. Article 33 of the Convention requires States to, among other matters, “maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention”. With a view to implementing this requirement, the Human Rights Commission has been given a broad role in promoting, protecting, and monitoring the implementation of the Convention.

In light of this role of the Commission in the area of disability rights, a full-time position of Disability Rights Commissioner within the Commission will be established. Creation of this role requires an amendment of the Act. This is because the Act currently enables Commissioners to perform the Commission’s work in a formalised leadership role in 2 areas only: race relations and equal employment opportunities. The Act does not allow the creation of formalised leadership roles in other priority areas, such as disability rights.

Changes to the role and structure of the Commission

The Bill makes changes to the composition, governance arrangements, and functions and powers of the Commission. These changes will enable the Commission to respond better to emerging human rights issues and do so in line with the Government’s focus on better results from public services. Strengthening the Commission will also enhance New Zealand’s ability to comply with its international human rights obligations, as well as benefit the implementation of domestic human rights legislation.

The changes to the Act include the following:

  • the Act currently provides for full-time and part-time Commissioners. This will be changed so that the Act no longer specifies this specific condition for appointment of Commissioners. This change will permit a composition of full-time Commissioners only, but also allows for the appointment of part-time Commissioners where this is considered appropriate, for example, because the most suitable candidate is not available full-time:

  • the current number of 3 full-time Commissioners (ie, the Chief Commissioner and 2 specialised Commissioners) and up to 5 part-time Commissioners will be changed to a number of no less than 4, and no more than 5, Commissioners (including the Chief Commissioner):

  • the Act will no longer name the Race Relations Commissioner and Equal Employment Opportunities Commissioner. Instead, they will be appointed as Human Rights Commissioners to reflect that Commissioners are first and foremost members of the Commission and operate at all times on behalf of the Commission. To ensure the formalised leadership roles are retained in the areas of race relations and equal employment opportunities and an additional role is created in the area of disability rights, the Act will provide that there must be a Commissioner (other than the Chief Commissioner) appointed to lead the work in each of these priority areas. No major substantial change of the specialised Commissioner role is intended and in practice these Commissioners can continue to operate as usual. The Chief Commissioner will also be able to designate a Commissioner to lead the work in other priority areas of human rights, after consultation with the Minister of Justice and the Commission. This will ensure that a Commissioner can operate in a formalised leadership role in these other areas where and when this is needed:

  • the functions of the Commission will be revised to better reflect its current responsibilities. One change relates to the role of the Commission in the area of international human rights instruments. However, the most important change is the explicit reference to race relations, equal employment opportunities, and disability rights in the primary functions of the Commission. This reflects that these areas of human rights are priority issues for the Commission:

  • some changes are made to the functions of the Chief Commissioner to better articulate his or her responsibility for managing the Commission. The functions of the Commissioners appointed or designated to lead the work in priority areas are subject to the Chief Commissioner’s management role.

Regulatory impact statement

The Ministry of Justice produced a regulatory impact statement on 28 June 2011 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

A copy of this regulatory impact statement can be found at—

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause and provides that the Bill comes into force on a date appointed by the Governor-General by Order in Council. The necessity for commencement by Order in Council arises because it is envisaged that the existing part-time Commissioners should be entitled to complete their terms of office and the new arrangements can only come into effect if the total number of Commissioners does not exceed 5.

Clause 3 states that the Bill amends the Human Rights Act 1993 (the principal Act).

Part 1
Amendments to Human Rights Act 1993

Clause 4: the designations of Equal Employment Opportunities Commissioner and Race Relations Commissioner disappear in the principal Act as amended by this Bill and accordingly the definitions of those terms are repealed.

Clause 5: subclause (2) adds 3 further primary functions to the existing functions of the Commission. These further primary functions are found in new section 5(1)(c), (d), and (e). Subclause (3) amends section 5(2) by breaking out existing paragraph (c) into new section 5(2)(c) and (ca). New section 5(2)(c) now makes explicit, which is not currently so, that the Commission may make statements commenting on the position of the Government in relation to matters that may affect or infringe human rights. Subclause (4) repeals section 5(2)(k)(iii) but that provision reappears as new section 5(2)(ka) (inserted by subclause (5)) with some changes: the Commission's report is made not only to the Prime Minister but also the to the Minister responsible, and the report is not confined to proposed legislation but is expanded to include existing legislation and any administrative provision. Subclause (5) inserts new sections 5(2)(ka) to (kc): the functions set out in new sections 5(2)(kb) and (kc) are new. Subclause (6) inserts new section 5(2)(n), which confers on the Commission functions in relation to equal employment opportunities. This is a consequence of the recasting of the position of the Equal Employment Opportunities Commissioner (which is discussed below). The functions (of the Equal Employment Opportunities Commissioner) that currently appear in section 17(c) to (f) are restated in new section 5(2)(n) as functions of the Commission (section 17 is repealed by clause 13).

Clause 6: this clause amends section 8, which relates to the membership of the Commission. It repeals section 8(1) and substitutes new subsections (1) to (1B). The changes to membership of the Commission are the following:

  • the distinction between full-time and part-time Commissioners is dropped:

  • the Commission consists of the Chief Commissioner and 3 or 4 other Commissioners:

  • the separate offices of Equal Employment Opportunities Commissioner and Race Relations Commissioner are dropped but there must be appointed a Commissioner to lead the work of the Commission in each of the priority areas of disability rights, equal employment opportunities (including pay equity), and race relations.

Under the existing law, the Commissioners are appointed under the Crown Entities Act 2004. This will continue to be the case: this Bill alters the composition of the Commission but is not intended to affect the appointment of Commissioners except to the extent that there must be appointed a Commissioner to lead the work of the Commission in each priority area. Although the current number of Commissioners exceeds the proposed maximum number of 5, the terms of office of some of those Commissioners will have expired before the change in composition of the Commission occurs.

Clause 7: section 10(2) allows the Race Relations Commissioner to call a special meeting of the Commission and is repealed as a consequence of removal of references to that office.

Clause 8: section 11(2) is amended to remove a reference to section 14, which is repealed by clause 10.

Clauses 9 and 10: these clauses repeal sections 13 and 14, which relate to criteria for the appointment of the Race Relations Commissioner and the Equal Employment Opportunities Commissioner respectively and will therefore be redundant. Clause 9 substitutes a new section 13 stipulating further criteria for the appointment of a person as Commissioner to lead the work of the Commission in a priority area. Those criteria reflect generally the specific criteria currently contained in sections 13 and 14.

Clause 11 repeals section 15 and substitutes new section 15 setting out the functions of the Chief Commissioner. This is in part a restatement of existing section 15. New section 15 differs from its predecessor in the following respects:

  • new paragraph (a) reflects the function of a Commissioner leading the work of the Commission in a priority area to lead discussions of the Commission in that area:

  • new paragraphs (c) and (d) insert new functions:

  • with the designations of Equal Employment Opportunities Commissioner and Race Relations Commissioner disappearing, existing paragraphs (d) and (e) become redundant:

  • existing paragraph (c) becomes new paragraph (e).

Clause 12: this clause repeals section 16 and substitutes new section 16. The repeal of existing sections 16 and 17 (see clause 13) follows from the changes in the composition of the Commission. The particular functions of the Race Relations Commissioner (existing section 16) and the Equal Employment Opportunities Commissioner (existing section 17) are expressed more generally in new section 16 as a statement of the additional functions of a Commissioner who is appointed to lead the work of the Commission in a priority area.

Clause 13: this clause repeals section 17 (see the discussion above for clause 12).

Clause 14: there has been some doubt as to whether the Commission, in the exercise of its inquiry function, must necessarily obtain an evidence order under section 126A. New section 126A(5), added by this clause, makes it clear that that is not the case.

Clause 15: this clause makes a number of consequential changes to section 140.

Clause 16: this clause repeals section 141A, which becomes redundant following the changes to the composition of the Commission made by this Bill.

Part 2
Miscellaneous

Clause 17 is a transitional provision.