Who’s holding the Government to account?: A consideration of the legitimacy of the New Zealand Human Rights Review Tribunal’s jurisdiction under Part 1A of the Human Rights (Amendment) Act 2002

Abstract

A significant step in the development of a human rights framework in New Zealand was achieved with the 2002 amendment to the Human Rights Act 1993 (HRA). Part 1A of the newly amended Act gave the New Zealand Human Rights Review Tribunal (NZHRRT) broad powers to declare actions of the public sector as inconsistent with s 19 (discrimination) of the New Zealand Bill of Rights Act 1990 (BORA). While this ability to constrain and check the actions of the Executive is undoubtedly important, numerous concerns arise with the legitimacy of a tribunal as opposed to a court exercising such extensive powers. Human rights are a vehicle used to help ensure that human dignity is respected, and to prevent ill treatment of citizens by the state. A belief in human rights is founded on the conviction that all human beings, purely by virtue of their being human, have moral rights that must be legally enforced. An early understanding of the importance of human rights was enumerated in the Universal Declaration of Human Rights; Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. In view of the importance of human rights, the competence of the body afforded jurisdiction to remedy breaches of those rights is of paramount importance. In the context of human rights the greatest protections should be afforded. The NZHRRT has jurisdiction to adjudicate on alleged instances of discrimination by the public sector, yet a tribunal is the most junior body capable of making judicial decisions in New Zealand. Despite the greater accessibility to justice provided by tribunals, when human rights are at stake it is unreasonable to trade this off with the actual competency of the body. The constitutional nature of the NZHRRT does not give it the same protections as are afforded to the Courts. The NZHRRT is not delivering high quality justice that can influence the decisions of the public sector. The consequence of this is that citizens are not protected from the excesses of arbitrary state power, and their individual liberties may be eroded. Real justice is not achieved by allowing the action to lie with the NZHRRT. In order to strive for the highest standards of justice in respect of human rights a proper judicial body is required to have jurisdiction. Part II of this paper will consider the theoretical principles that underpin New Zealand’s Constitution. These principles are important for the NZHRRT to live up to in order to satisfy that they are the most appropriate body to have jurisdiction under Part 1A of the HRA. Part III will consider New Zealand’s human rights legislative framework, to further determine the constitutional role that the NZHRRT is required to play. Part IV of the paper will evaluate the effectiveness of tribunals. Finally in Part V, this paper will analyse the recent Atkinson decision in order to provide a more practical framework for the analysis of the legitimacy of the NZHRRT.