Human Rights Amendment Act 2001

5 New sections 5 to 20H and headings substituted
  • The principal Act is amended by repealing sections 5 to 20 and the headings before sections 5, 7, 10, 12, and 14, and substituting the following sections and headings:

    Functions and powers of Commission

    5 Functions and powers of Commission
    • (1) The primary functions of the Commission are—

      • (a) to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society; and

      • (b) to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.

      (2) The Commission has, in order to carry out its primary functions under subsection (1), the following functions:

      • (a) to be an advocate for human rights and to promote and protect, by education and publicity, respect for, and observance of, human rights:

      • (b) to encourage and co-ordinate programmes and activities in the field of human rights:

      • (c) to make public statements in relation to any matter affecting human rights, including statements promoting an understanding of, and compliance with, this Act or the New Zealand Bill of Rights Act 1990 (for example, statements promoting understanding of measures to ensure equality, of indirect discrimination, or of institutions and procedures under this Act for dealing with complaints of unlawful discrimination):

      • (d) to promote by research, education, and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law:

      • (e) to prepare and publish, as the Commission considers appropriate, guidelines and voluntary codes of practice for the avoidance of acts or practices that may be inconsistent with, or contrary to, this Act:

      • (f) to receive and invite representations from members of the public on any matter affecting human rights:

      • (g) to consult and co-operate with other persons and bodies concerned with the protection of human rights:

      • (h) to inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or non-governmental, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights:

      • (i) to appear in or bring proceedings, in accordance with section 6 or section 92B or section 92E or section 92H or section 97:

      • (j) to apply to a court or tribunal, under rules of court or regulations specifying the tribunal's procedure, to be appointed as intervener or as counsel assisting the court or tribunal, or to take part in proceedings before the court or tribunal in another way permitted by those rules or regulations, if, in the Commission's opinion, taking part in the proceedings in that way will facilitate the performance of its functions stated in paragraph (a) of this subsection:

      • (k) to report to the Prime Minister on—

        • (i) any matter affecting human rights, including the desirability of legislative, administrative, or other action to give better protection to human rights and to ensure better compliance with standards laid down in international instruments on human rights:

        • (ii) the desirability of New Zealand becoming bound by any international instrument on human rights:

        • (iii) the implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights:

      • (l) to make public statements in relation to any group of persons in, or who may be coming to, New Zealand who are or may be subject to hostility, or who have been or may be brought into contempt, on the basis that that group consists of persons against whom discrimination is unlawful under this Act:

      • (m) to develop a national plan of action, in consultation with interested parties, for the promotion and protection of human rights in New Zealand:

      • (n) to do anything incidental or conducive to the performance of any of the functions set out in paragraphs (a) to (m):

      • (o) to exercise or perform any other functions, powers, and duties conferred or imposed on it by or under this Act or any other enactment.

      (3) The Commission may, in the public interest or in the interests of a person, department, or organisation, publish reports relating generally to the exercise of its functions under this Act or to a particular inquiry by it under this Act, whether or not the matters to be dealt with in a report of that kind have been the subject of a report to the Minister or the Prime Minister.

      Compare: 1977 No 49 ss 5(1), (3), (5), 6(1), (2), 28A, 78(1), 86.

    6 Powers relating to declaratory judgments
    • (1) If at any time the Commission considers that it may be desirable to obtain a declaratory judgment or order of the High Court in accordance with the Declaratory Judgments Act 1908, the Commission may, despite anything to the contrary in that Act or any other enactment or rule of law, institute proceedings under that Act.

      (2) The Commission may exercise the right in subsection (1) only if it considers that the exercise of the right will facilitate the performance of its functions stated in section 5(2)(a).

      (3) Subsection (1) does not limit the ability of the Commission to appear in or bring proceedings under section 92B or section 92E or section 92H or section 97.

      Compare: 1977 No 49 s 5A; 1983 No 56 s 3

    Activities in performance of Commission's functions

    7 Commission determines general nature of activities
    • (1) The members of the Commission acting together determine the strategic direction and the general nature of activities undertaken in the performance of the Commission's functions.

      (2) The Chief Commissioner is responsible to the Commission for ensuring that activities undertaken in the performance of the Commission's functions are not inconsistent with determinations of the Commission.

    Membership of Commission

    8 Membership of Commission
    • (1) The Commission consists of the following Human Rights Commissioners:

      • (a) a Commissioner appointed as the Chief Commissioner, whose office is a full-time one:

      • (b) a Commissioner appointed as the Race Relations Commissioner, whose office is also a full-time one:

      • (c) a Commissioner appointed as the Equal Employment Opportunities Commissioner, whose office is also a full-time one:

      • (d) No more than 5 other Commissioners, whose offices are each part-time ones.

      (2) Every Commissioner is appointed by the Governor-General on the recommendation of the Minister.

      (3) The powers and functions of the Commission are not affected by a vacancy in its membership.

      Compare: 1977 No 49 s 7(1)(a)(c), (ca), (d), (2); 1983 No 56 s 4(1), (2); 1991 No 132 s 3(1); 1993 No 35 s 2

    9 Alternate Commissioners
    • (1) The Governor-General may, on the recommendation of the Minister, appoint as alternate Commissioners persons who may be designated as the alternate of a Commissioner by either the Minister under subsection (2) or the Chief Commissioner under subsection (3).

      (2) The Minister may designate a Commissioner or an alternate Commissioner to act as the Chief Commissioner—

      • (a) during the period following the resignation of the Chief Commissioner and ending when the Chief Commissioner's successor comes into office; or

      • (b) during the Chief Commissioner's incapacity or in respect of a particular function or activity of the Commission, as the case may be, if—

        • (i) the Minister is satisfied that the Chief Commissioner is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or

        • (ii) the Chief Commissioner considers it is not proper or desirable that he or she should participate in the function or activity.

      (3) The Chief Commissioner may designate an alternate Commissioner to act as a Commissioner during the period the Chief Commissioner is acting as Chief Commissioner, or during the period of the Commissioner's incapacity, or in respect of a particular function or activity of the Commission, as the case may be, if—

      • (a) the Chief Commissioner is a Commissioner acting as the Chief Commissioner under a designation under subsection (2); or

      • (b) the Chief Commissioner is satisfied that any other Commissioner is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or

      • (c) a Judge who is for the time being holding office as a Commissioner declines to participate in, or withdraws from participation in, the particular function or activity of the Commission under section 20C(2); or

      • (d) any other Commissioner considers it is not proper or desirable that he or she should participate in the function or activity of the Commission.

      (4) An alternate Commissioner designated under subsection (2) or subsection (3) must, while the alternate Commissioner acts as Chief Commissioner or as a Commissioner, be taken to be the Chief Commissioner or the Commissioner in whose place the alternate Commissioner acts.

      (5) No designation of an alternate Commissioner, and no act done by an alternate Commissioner, and no act done by the Commission while any alternate Commissioner is acting, may in any proceedings be questioned on the ground that the occasion for the alternate Commissioner's designation had not arisen or had ceased.

      Compare: 1977 No 49 s 7B; 1985 No 23 s 2

    10 Meetings of Commission
    • (1) Meetings of the Commission are held at such times and places as the Commission or the Chief Commissioner may appoint.

      (2) The Chairperson, the Race Relations Commissioner, or any 4 Commissioners, may, at any time, call a special meeting of the Commission.

      (3) At a meeting of the Commission, the quorum necessary for the transaction of business is 4 Commissioners.

      (4) The Chief Commissioner must preside at all meetings of the Commission at which he or she is present, unless the members present, with the consent of the Chief Commissioner, appoint another member to preside at that meeting.

      (5) In the absence of the Chief Commissioner from a meeting, the Commissioners present must appoint 1 of their number to be the Chairperson for the purposes of that meeting.

      (6) At a meeting of the Commission, the presiding member has a deliberative vote and, in the case of an equality of votes, also has a casting vote.

      (7) A question arising at a meeting of the Commission must be decided by a majority of the valid votes recorded on the question.

      (8) Except as provided by or under this Act, the Commission may regulate its procedure in any manner it thinks fit.

      Compare: 1977 No 49 s 10

    Criteria for appointment

    11 Criteria for appointment
    • (1) In recommending persons for appointment as Commissioners or alternate Commissioners, the Minister must have regard to the need for Commissioners and alternate Commissioners appointed to have among them—

      • (a) knowledge of, or experience in,—

        • (i) different aspects of matters likely to come before the Commission:

        • (ii) New Zealand law, or the law of another country, or international law, on human rights:

        • (iii) the Treaty of Waitangi and rights of indigenous peoples:

        • (iv) current economic, employment, or social issues:

        • (v) cultural issues and the needs and aspirations (including life experiences) of different communities of interest and population groups in New Zealand society:

      • (b) skills in, or experience in,—

        • (i) advocacy or public education:

        • (ii) business, commerce, economics, industry, or financial or personnel management:

        • (iii) community affairs:

        • (iv) public administration, or the law relating to public administration:

      (2) Nothing in this section limits section 12 or section 13.

      Compare: 1977 No 49 s 7(3); 1985 No 23 s 3(1)

    12 Further criteria for appointment of Chief Commissioner
    • In recommending a person for appointment as Chief Commissioner, the Minister must have regard not only to the criteria stated in section 11 but also to the person's—

      • (a) ability to provide leadership in relation to the performance of the functions of the Commission (for example, being an advocate for, and promoting, by education and publicity, respect for and observance of human rights):

      • (b) ability to represent the Commission, and to create and maintain effective relationships between it and other persons or bodies:

      • (c) knowledge of New Zealand law, the law of other countries, and international law, on human rights, and of New Zealand's obligations under international instruments on human rights:

      • (d) appreciation of issues or trends in human rights arising in other countries or internationally, and of the relevance of those issues or trends for New Zealand:

      • (e) ability to perform the functions stated in section 15.

    13 Further criteria for appointment of Race Relations Commissioner
    • In recommending a person for appointment as Race Relations Commissioner, the Minister must have regard not only to the criteria stated in section 11 but also to the person's—

      • (a) understanding of current race relations in New Zealand, and of the origins and development of those relations:

      • (b) appreciation of issues or trends in race relations arising in other countries or internationally, and of the relevance of those issues or trends for New Zealand:

      • (c) ability to perform the functions stated in section 16.

    14 Further criteria for appointment of Equal Employment Opportunities Commissioner
    • In recommending a person for appointment as the Equal Employment Opportunities Commissioner, the Minister must have regard not only to the criteria stated in section 11 but also to the person's—

      • (a) understanding of principles relating to equal employment opportunities:

      • (b) appreciation of issues, trends, and developments in the promotion of equal employment opportunities in other countries and internationally, and the relevance of those issues, trends, or developments in New Zealand:

      • (c) ability to perform the functions stated in section 17.

    Functions of commissioners

    15 Functions of Chief Commissioner
    • (1) The Chief Commissioner has the following functions:

      • (a) to chair the Commission, and lead discussions of the Commission (except when the Commission has discussions on matters of race relations):

      • (b) to ensure that activities undertaken in the performance of the Commission's functions are consistent with the strategic direction and other determinations of the Commission under section 7:

      • (c) to allocate spheres of responsibility among the Commissioners, and to determine the extent to which Commissioners engage in activities undertaken in the performance of the Commission's functions (except for those stated in section 76), but in each case only after consultation with the Minister:

      • (d) to act jointly with the Race Relations Commissioner on matters of race relations arising in the course of activities undertaken in the performance of the Commission's functions and to carry out the functions conferred on the Chief Commissioner by section 16(c) and (d):

      • (e) to act jointly with the Equal Employment Opportunities Commissioner on matters concerning equal employment opportunities arising in the course of activities undertaken in the performance of the Commission's functions, and to carry out the functions conferred on the Chief Commissioner by section 17(g):

      • (f) to supervise and liaise with the General manager on matters of administration in relation to the Commission and on the activities undertaken in the performance of the Commission's functions:

      • (g) any other functions, powers, or duties conferred or imposed on him or her by or under this Act or any other enactment.

      (2) Subsection (1)(d) and (e) is subject to section 7(2).

      Compare: 1977 No 49 s 7(1)(a), (5)

    16 Functions of Race Relations Commissioner
    • The Race Relations Commissioner has the following functions:

      • (a) to lead discussions of the Commission in relation to matters of race relations:

      • (b) to provide advice and leadership on matters of race relations arising in the course of activities undertaken in the performance of the Commission's functions, both when engaging in those activities and otherwise when consulted:

      • (c) to ensure, acting jointly with the Chief Commissioner, that activities undertaken in the performance of the Commission's functions in matters of race relations are consistent with the strategic direction and other determinations of the Commission under section 7:

      • (d) to supervise and liaise with the General manager, acting jointly with the Chief Commissioner, on the activities undertaken in the performance of the Commission's functions in matters of race relations:

      • (e) any other functions, powers, or duties conferred or imposed on him or her by or under this Act or any other enactment.

      Compare: 1971 No 150 s 13; 1977 No 49 s 86

    17 Functions of Equal Employment Opportunities Commissioner
    • The Equal Employment Opportunities Commissioner has the following functions:

      • (a) to lead discussions of the Commission about equal employment opportunities (including pay equity):

      • (b) to provide advice and leadership on equal employment opportunities arising in the course of activities undertaken in the performance of the Commission's functions, both when engaging in those activities and otherwise when consulted:

      • (c) to evaluate, through the use of benchmarks developed by the Commissioner, the role that legislation, guidelines, and voluntary codes of practice play in facilitating and promoting best practice in equal employment opportunities:

      • (d) to lead development of guidelines and voluntary codes of practice to facilitate and promote best practice in equal employment opportunities (including codes that identify related rights and obligations in legislation), in accordance with section 5(2)(e):

      • (e) to monitor and analyse progress in improving equal employment opportunities in New Zealand, and to report to the Minister on the results of that monitoring and analysis:

      • (f) to liaise with, and complement the work of, any trust or body that has as 1 of its purposes the promotion of equal employment opportunities (including pay equity):

      • (g) to ensure, acting jointly with the Chief Commissioner, that activities undertaken in the performance of the Commission's functions in matters of equal employment opportunities are consistent with the strategic direction and other determinations of the Commission under section 7:

      • (h) any other functions, powers, or duties conferred or imposed on him or her by or under this Act or any other enactment.

    General manager and staff of Commission

    18 General manager and staff of Commission
    • (1) The General manager and staff of the Commission undertake activities required to perform the functions of the Commission in accordance with the strategic direction and other determinations of the Commission under section 7.

      (2) The General manager—

      • (a) is responsible to the Chief Commissioner and reports to him or her; and

      • (b) is appointed by the Chief Commissioner, in accordance with clause 1 of Schedule 1.

      (3) Employees of the Commission are responsible to the General manager and report to him or her.

    Commissioners to act independently

    19 Duty to act independently
    • Members of the Commission must act independently in the exercise or performance of functions of the Commission.

    Office of Human Rights Proceedings

    20 Office of Human Rights Proceedings
    • (1) The Office of Human Rights Proceedings is part of the Commission and is headed by the Director of Human Rights Proceedings or his or her alternate.

      (2) The staff of the Office report to the Director or his or her alternate, and help him or her to exercise or perform the functions, powers, and duties of the Director under this Act.

      (3) In exercising or performing the functions, powers, and duties of the Director, the Director or his or her alternate and the staff of the Office must act independently from the Commission and Ministers of the Crown.

      (4) However, the Director or his or her alternate is responsible to the Chief Commissioner for the efficient, effective, and economical administration of the activities of the Office.

    Director of Human Rights Proceedings

    20A Director of Human Rights Proceedings
    • (1) The Director of Human Rights Proceedings is appointed by the Governor-General on the recommendation of the Minister.

      (2) The Governor-General may, on the recommendation of the Minister, appoint as alternate Director of Human Rights Proceedings a person designated for appointment as alternate Director by the Minister.

      (3) The Minister must not designate a person for appointment as alternate Director of Human Rights Proceedings unless—

      • (a) the Minister is satisfied that the Director is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or

      • (b) the Director considers it is not proper or desirable that the Director should perform any particular duty of his or her office.

      Compare: 1977 No 49 s 7B; 1985 No 23 s 2

    20B Criteria and requirement for appointment
    • (1) In recommending a person for appointment as Director of Human Rights Proceedings or as his or her alternate, the Minister must have regard not only to the person's attributes but also to the person's—

      • (a) knowledge of, or experience in,—

        • (i) the different aspects of matters likely to come before the Human Rights Review Tribunal:

        • (ii) New Zealand law, or the law of another country, or international law, on human rights:

        • (iii) current economic, employment, or other social issues:

      • (b) skills in, or experience in, the practice of public law (including the conduct of litigation), and financial and personnel management:

      • (c) ability to exercise or perform, and to ensure the Office of Human Rights Proceedings helps the person to exercise or perform, efficiently and effectively, the functions, powers, and duties of the Director under this Act.

      (2) Every person appointed as Director of Human Rights Proceedings or as his or her alternate must be a barrister or solicitor of the High Court of not less than 5 years' legal experience.

      Compare: 1977 No 49 s 7(3); 1985 No 23 s 3(1)

    Appointment of Judge as Human Rights Commissioner

    20C Appointment of Judge as Human Rights Commissioner
    • (1) The appointment of a Judge as a Commissioner or alternate Commissioner or service by a Judge as a Commissioner or alternate Commissioner does not affect his or her tenure of judicial office or his or her rank, title, status, precedence, salary, annual or other allowances, or other rights or privileges as a Judge (including those in relation to superannuation), and, for all purposes, his or her service as a Commissioner or alternate Commissioner must be taken to be service as a Judge.

      (2) A Judge who is for the time being holding office as a Commissioner may, at any time, decline to participate in, or withdraw from participation in, any particular function or activity of the Commission if the Judge considers it incompatible with his or her judicial office.

      Compare: 1977 No 49 ss 7(5A), 7A; 1983 No 56 ss 4(3), 5; 1985 No 23 s 3(1)

    Provisions relating to office holders

    20D Office holders to whom sections 20E to 20G apply
    • (1) Sections 20E to 20G each applies to a person (the office holder) who holds 1 of the following offices (the office):

      • (a) Commissioner:

      • (b) alternate Commissioner:

      • (c) Director of Human Rights Proceedings:

      • (d) alternate Director of Human Rights Proceedings.

      (2) However, section 20G(c) and (d) do not apply to a Commissioner or alternate Commissioner who is a Judge.

      (3) Nothing in subsection (2) limits the application of section 20G(c) or (d) to a Commissioner or alternate Commissioner who ceases to be a Judge during his or her term of office as a Commissioner or alternate Commissioner.

      Compare: 1983 No 56 s 6; 1985 No 23 s 3(1)

    20E Service in office
    • The office holder must not be treated as being employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 just because he or she is appointed to the office.

      Compare: 1971 No 150 s 34; 1977 No 49 s 7(4); 1985 No 23 s 3(1)

    20F Term of office
    • The office holder—

      • (a) holds the office for the term (not longer than 5 years) the Governor-General, on the recommendation of the Minister, specifies in the person's appointment; and

      • (b) may, from time to time, be reappointed; and

      • (c) unless he or she sooner vacates or no longer holds or is removed from the office under section 20G, continues in it until his or her successor comes into it, even though the term for which he or she was appointed has expired.

      Compare: 1971 No 150 s 12(1), (2); 1977 No 49 s 8; 1985 No 23 s 3(1)

    20G Vacation of office
    • The office holder—

      • (a) may resign from the office by delivering to the Minister a notice in writing to that effect and stating when the resignation takes effect:

      • (b) ceases to hold office if he or she dies:

      • (c) ceases to hold office if he or she is, under the Insolvency Act 1967, adjudged bankrupt:

      • (d) may, at any time, be removed from the office by the Governor-General for incapacity affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.

      Compare: 1971 No 150 s 12(3); 1977 No 49 s 9; 1985 No 23 s 3(1)

    Administrative provisions relating to Human Rights Commission and Office of Human Rights Proceedings

    20H Administrative provisions set out in Schedules 1 and 2
    • (1) Schedule 1 applies in respect of the Commission.

      (2) Schedule 2 applies in respect of the Office.