Analysis: Can the Human Rights Commission be fixed?

Concerns about bigotry and harassment in New Zealand are continuing, even rising. Yet the primary state agency that deals with these issues – the Human Rights Commission – has been discredited and is in turmoil. The latest ministerial report is incredibly damning, illustrating the commission is not living the values it wants everyone else to live by.

For its supporters, the Human Rights Commission (HRC) plays an important role in fostering inclusion, understanding and harmony by campaigning publicly against sexism, racism, homophobia and other forms of discrimination. But, to its critics, it’s proved itself not up to the task of protecting human rights and, in the eyes of some, become a “politically correct” activist state agency, that goes beyond its proper purpose by policing free speech.

So, how can the commission be reformed? Or should it be scrapped?

How the scandal started
Back in February, journalist Harrison Christian published an exposé on the HRC in the Sunday Star TimesHuman Rights Commission finance boss sexually harasses young intern, keeps job.

The whole scandal was somewhat of a paradox – not simply because a human rights agency might be expected to be the last place that sexual harassment should be occurring – but particularly because the agency was entirely remiss in the way it dealt with the intern’s complaint.

As reported in the article, the intern claimed the commission did not have her interests as its main concern: “I felt it wasn't so much about me any more, it was about protecting the organisation, and them hitting all the right points that they had to hit legally. Ultimately I felt it came down to making sure they could move on as an organisation.”

Writing at the time, Alison Mau was shocked: “You'd think of all places the commission would have a gold-standard way of investigating in a fair, balanced, independent and transparent manner” – see: After Human Rights Commission harassment scandal, how can victims trust the process? She also hoped the scandal would “not reflect on the work that the HRC does for New Zealanders in the wider sense. It would be a shame if confidence in its public role took a knock.”

Then in May, Harrison Christian followed up with more detail on what had occurred in the commission, how his own investigation was carried out, and he drew attention to the uncooperative and murky role of its managers in the scandal – see: Analysis: The road to the truth about the Human Rights Commission. The chief executive, Cynthia Brophy, comes out of this account poorly.

The extent of the problem with the Human Rights Commission
Given the controversy, a ministerial inquiry was commissioned by Minister of Justice, Andrew Little, which produced a damning report by retired judge Coral Shaw. This is covered in RNZ’s HRC report: 'Deep divide' between staff and managers. The report details bullying and dysfunctional leadership in the agency.

In the wake of the review, most of those at the top of the commission have been moved on. First to go was Chief Commissioner David Rutherford – see Harrison Christian’s HRC chief commissioner David Rutherford to go following damning report.

Then, on Friday, two of the Human Rights Commissioners, Susan Devoy and Jackie Blue, announced their departure. Devoy wrote an “exclusive guest essay” about this for The Spinoff website (a media outlet that receives sponsorship from the HRC) – see: How the Human Rights Commission can rebuild trust.

While worth reading, you won’t find much in the way of interesting reflections – or much real contrition – from Ms Devoy. Instead, this is a PR piece is about the achievements of herself and colleagues, how they have been “speaking truth to power,” and how she feels “vindicated.” She also “calls on those who failed staff in relation to sexual harassment allegations to do the right thing and step aside.” Apart from this, there is little in her essay about how the HRC can be reformed.

Can the HRC be reformed?
The ministerial report was clear that the latest problems at the commission were about more than just the personnel, with former commissioners reporting the dysfunction had been present for “many years” and under previous commissioners.

There are signs that, with the departure of some of the problematic managers, it might now be “business as usual” at the Commission. Andrew Little even said on Friday: “So it's time to look further afield and see if we can get some new blood,”  suggesting he may not accept the need for bigger reform.

Mr Little and his government clearly also need to look at the appointment processes for new commissioners. This is explained well by former commissioner Peter Hosking in his article, Drop the politics from human rights. He asks why the government doesn’t consult with the opposition over the new appointments.

For a long time now, the commissioner appointment process has been party political, with the government of the day making the decision, sometimes even ignoring officials’ advice. Mr Hosking says that the process should be bipartisan, pointing out that the United Nations has previously recommended this to New Zealand, and the ministerial review makes a good suggestion in this regard: “the judge recommending 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.”

Other suggestions for reform come from David Farrar, who has written one of the most interesting commentaries on the ministerial review – see: The Human Rights Commission review. He says the extent of the problem is made clear in the review: “Government reviews are normally diplomatically worded. This review is damning in the language used such as toxic, unprofessional etc. Andrew Little has his work cut out for him with the HRC. The status quo is clearly untenable.”

Here’s Mr Farrar’s main point about the need for a structural change in the organisation: “I think the issue may be structure as much as people. Most organisations have part-time governors who set strategy and policy and fulltime staff who do the work. The HRC has fulltime commissioners who lead the work programme but also collectively are meant to govern the organisation. There is also a chief executive and a chief commissioner. So very blurred accountability in my opinion... I prefer the traditional models with a clear line between governance and management. Effectively the HRC has multiple bosses as each commissioner has control over their area, plus a chief commissioner and a chief executive.”

Maybe the HRC is simply too tarnished and broken to be reformed, and needs to be scrapped. That’s the view of Damien Grant, who draws a parallel with Britain’s News of the World publication being shut down: “One the best things Rupert Murdoch did was shut the News of the World. As his son, James, explained at the time: ‘The News of the World is in the business of holding others to account. But it failed when it came to itself’… The commission, like News of the World, preaches one thing and practises another” – see: Shut it down – rights watchdog fails to practice what it preaches.

Damning the organisation, Grant quotes a staff member saying “There's a culture of victimisation and secrecy, no one feels that they can speak the truth or be heard,” and he points to the ministerial report stating that “78% of its staff did not believe their employer treated everyone fairly.”

Grant believes the HRC to be generally redundant and suggests trade unions are better at dealing with harassment and discrimination: “The best organisation to challenge bullying and harassment in the workplace isn't a dysfunctional government agency but unions. Asserting the rights of workers is exactly the sort of role a successful union would aspire to and, if effective, will gain new recruits as a result.”

Has the commission also become a victim of “mission creep”? According to John Drinnan, it has become increasingly activist, which is a problem for a state agency – see: Dysfunctional HRC targets hate and disharmony. Drinnan reports that AUT academic Paul Moon “sees as evidence of an ‘ideology’ developing at the commission” and criticises its lack of transparency.

Mr Drinnan says the HRC continues to promote restrictions on free speech, and he points to a recent forum about online hate speech in which there was a complete lack of ideological diversity: “None of the speakers is a promoter for free speech.” Mr Drinnan also reports Mr Little as saying a review of human rights laws is coming up, and “It may well be that is the time to consider whether there has to be a beefing up over the coverage of hate speech.”

Finally, maybe some lessons can be learnt from the UK’s equally controversial version of our agency, the Equality and Human Rights Commission, which was headed for 10 years by Trevor Phillips. While running the EHRC, Phillips was a highly controversial public figure akin to some of New Zealand’s commissioners such as Susan Devoy. But he now says he’s had a “Road to Damascus” change of heart about the agency and now takes an entirely different approach to human rights issues and debate. You can listen to his 2015 interview with RNZ’s Katherine Ryan here: Straight conversations about racial and religious differences. And you can watch his recent British documentary: Has Political Correctness Gone Mad?

This is supplied content and not commissioned or paid for by NBR.

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