The commission occupies an unusual position. It is official – set up by Parliament and funded by the state budget – but acts independently of the Government in promoting and protecting human rights. Sometimes a government’s collaborator and sometimes its critic, a commission’s main role is to monitor the state’s observance of international human rights standards.
A commission sits somewhere between a government department and a non-governmental organisation (NGO), which promotes human rights independently of the state.
Ideally, NGOs act as a commission’s “eyes and ears” at grass roots where most human rights issues and complaints arise. Essential though this relationship is, most commissions and NGOs struggle to make it effective. It requires commitment and work on both sides.
Human right commissions, as presently constituted, are fairly recent. The first international meeting of these institutions was held in 1991 in Paris where a blueprint, the Paris Principles, was drawn up. These were endorsed by the UN General Assembly in 1993.
These principles establish the criteria for a genuine human rights commission, particularly the necessity for the independence, diversity and plurality of commissioners, and set out their functions, including promoting human rights, undertaking human rights policy analysis and research and receiving and mediating complaints of human rights breaches.
There has also been established a Global Alliance of Human Rights Commissions, which works to ensure existing and emerging commissions meet criteria based on the Paris Principles.
With New Zealand’s being one of the earliest commissions (established in 1978) New Zealand human rights commissioners have been involved both at the 1991 meeting, in the drafting of the Paris Principles and in international roles since.
Recent discussion in the media has suggested some of the Human Rights Commission’s shortcomings are structural, that a more conventional governance and management structure would solve the problems that have emerged.
Commissioners do have a (collective) governance role but they are also chosen (or should be) for human rights expertise in specific areas — race relations, equal employment opportunities, disability rights and so on.
They are expected to assume the public lead on these human rights areas, supported by a management reporting to a chief executive.
It would be unrealistic to expect a chief commissioner to have expertise in all these human rights areas. Conventionally, staff and their managers report ultimately to the chief executive, not to individual commissioners or the collective commission.
In their governance role, commissioners, whether full or part-time, and under the leadership of the chief commissioner, act as a body to approve policy and work programmes and oversee the chief executive who reports on management and administrative matters.
Individual commissioners lead the profile of the commission in their respective areas of responsibility. While the structure is somewhat unconventional, competent commissioners and the chief executive can make it work, as similar structures have elsewhere.
The structure clearly requires people with human rights expertise and integrity who are prepared and equipped to act independently of government. The process for appointing them is therefore crucial.
Some appointments in the past have been controversial. Justified or not, controversy tends to hamper both the ability of these commissioners to fulfil their responsibilities (given their need to maintain a high profile in the media in order to promote human rights issues) and the credibility of the commission itself.
One way to minimise disputed appointments in our polarised political system would be to involve opposition parties in the appointment process.
Judge Shaw’s review also recommended, as others have before her, that in an effort to ensure the commission’s independence, “consideration be given to whether the commissioners should be officers of Parliament, similar to the Ombudsman, Auditor-General and Office of the Parliamentary Commissioner for the Environment”.
This would require legislative change. However, advertisements have already appeared to replace the three commissioners whose terms have been completed or are coming to an end. The appointments are obviously going to be made before any legal amendments can be passed.
Yet the minister could still consult the opposition parties for their views on the proposed appointments or even the shortlists.
Human rights can be controversial and promoting them a challenge. Commissioners need the skills and strength to lead public discussion. Disagreements around commissioner appointments are counterproductive and a more collective approach to appointments is overdue.
New Zealand needs a functioning human rights commission which is respected both here and internationally. Its role in holding the Government to account for its adherence to international human rights standards is a crucial one.
Originally published in the NZ Herald. Margaret Bedggood and Peter Hosking are former human rights commissioners, and current members of the Foundation’s management committee.