Human Rights Commission

Inquiry into Discrimination and Human Rights Issues for Transgender People – Terms of Reference.

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1. TERMS OF REFERENCE

The Human Rights Commission is undertaking an Inquiry into discrimination and human rights issues for transgender people. This will be conducted under the powers granted to the Commission pursuant to section 5 of the Human Rights Act 1993 including, but not limited to the following:

• 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 involved, or may involve, the infringement of human rights (section 5(2)(h))
• receiving and inviting public representations on human rights s5(2)(f)
• publishing reports s5(3)

Terms of Reference for the Inquiry are that:

1. The Commission will inquire into:

(a) the nature and extent of discrimination experienced by transgender people;
(b) the accessibility of public health services to transgender people (incorporating the minimum core obligations of both the primary and secondary health services including, but not limited to, gender reassignment services); and
(c) barriers faced by transgender people when attempting to gain full legal recognition of their gender status.

2. To consider, as a result of these inquiry processes, whether to make recommendations on:

(a) changes to legislation, regulations, policies and practices; and
(b) other steps required to reduce the level of marginalisation experienced by transgender people.

2. INQUIRY PROCESS

The Inquiry will be conducted in four phases.

Phase One: Information gathering August – October 2006

• Initial consultation with interested groups to advise of the inquiry process and seek involvement. Consultation will include Ministers of the Crown, relevant government agencies and individuals and groups within the transgender community;
• Research focusing on New Zealand administrative data, current policy and practice and international best practice;

• Consultation with relevant professional bodies.

Phase Two: Hearing and receiving submissions October – November 2006

• Invite submissions from interested groups and individuals;
• Conduct public hearings in Auckland, Wellington, Christchurch, Dunedin and in other locations as appropriate.

Phase Three: Analysis of submissions and issues December 2006 – May 2007

• Prepare and circulate a preliminary analysis of submissions and issues
• Consult with key stakeholders as appropriate
• Prepare a draft final report
• Invite submissions from interested groups, individuals and government agencies on the draft final report.

Phase Four: Publication of final report September 2007

• Publish the final report.

Following publication of the final report the Human Rights Commission would undertake monitoring of the implementation of the Inquiry recommendations.

3. TIMING OF THE INQUIRY

The Commission will use its best endeavours to conduct the Inquiry according to the following timeframe:

(i) August – October 2006: Information gathering;
(ii) October – November 2006: hearing and receiving submissions;
(iii) December 2006 – March 2007: Preliminary analysis of submissions and issues and consultation as appropriate;
(iv) May 2007: Draft final report circulated for comment;
(v) September 2007: Final report published.

4. CIVIL PROCEEDINGS

(i) The Human Rights Act 1993 provides in section 92E that if the Commission considers that an Inquiry by it has disclosed or may have disclosed a breach of the HRA it may bring civil proceedings before the Human Rights Review Tribunal;
(ii) The Commission is not actively seeking to exercise the power given to it by section 92E of the HRA.

5. STYLE OF INQUIRY

The Commission is committed to an open and transparent Inquiry that consults widely in ways that respect the dignity of all those involved. People will be able to make their views known by:

• Oral submissions at the hearings
• Taped submissions sent to the Inquiry
• Hand-written or typed submissions, which can be posted, emailed or faxed.

The hearings will be public meetings, open to any member of the public and chaired by one of the three Inquiry Commissioners. Questioning will aim to clarify statements being offered. Procedures will be designed to ensure that all those who want to contribute have a fair opportunity to do so.

The Inquiry will receive confidential evidence if this is necessary, for instance, to protect personal privacy. Every reasonable step will be taken to ensure such evidence remains confidential. Confidential information given to the Inquiry will only be used for the purposes of the Inquiry.

Written submissions to the Inquiry may be made in either Maori or English. Oral submissions to the hearings may be made in Maori, English or New Zealand Sign Language. If submitters would prefer to use another language, they may contact the Commission and attempts will be made to accommodate these requests.

6. INVOLVEMENT

1. To present a submission at a public hearing in October and November 2006
2. To make a submission (the closing date is 30 November 2006) or
3. To receive further information about Inquiry hearings and consultation processes

Please phone, fax, email or write to:

Jack Byrne, Project Manager
Human Rights Commission
P O Box 6751, Wellesley Street
Auckland
Phone: (09) 375-8647
Fax: (09) 377-3593
Email: jackb@hrc.co.nz

Or contact

The Human Rights Commission InfoLine: 0800 496 877 (toll free)
TTY (teletypewriter): 0800 150 111

7. GUIDELINES

Submissions

1. The Commission will receive submissions in writing. Alternative formats including oral submissions will be accepted.
Comment: The Commission is mindful that some people may have difficulty preparing a submission in writing and may find it easier to speak to Commissioners without notes.

2. The Commission will consider submissions that address the terms of reference of the inquiry. The Commission will not explore issues that go wider than the terms of reference.
Comment: It is important that the Commission does not make findings on matters outside the terms of reference. This ensures the integrity of the process and that parties are not later subject to findings on issues which they have not had an opportunity to submit on.

Access to submissions and comments on other parties submissions

3. The Inquiry will receive confidential evidence if this is necessary, for instance, to protect personal privacy or commercially sensitive information.
Comment: Every reasonable step will be taken to ensure such evidence remains confidential.

4. Submitters will have access to a summary of other submissions subject to
guideline 3.
Comment: An analysis of all publicly available submissions will be circulated. Parties will have an opportunity to consider the summary of submissions, and if desired, to comment on that summary.

The Hearings Process

5. A schedule of hearing times will be released in advance of the hearing so that interested parties have an opportunity to attend and hear submissions of particular interest to them.

6. Commissioners accompanied by staff will hear submissions.

7. Oral submissions that are not accompanied by a written submission may be recorded and transcribed.
Comment: This ensures an accurate record of proceedings.

8. Commissioners will conduct the hearing process with flexibility and respect for the particular needs of the parties. Commissioners are entitled to ask submitters questions.
Comment: Questioning will aim to clarify statements being offered.

9. Hearings are open to the public and the media.
Comment: This ensures that the process is open and transparent.

10. Submitters are entitled to ask another submitter questions:

(a) At the end of each submission, Commissioners will ask if any other submitters have questions. Commissioners must advise the submitter that they are not “obliged” to answer questions.
(b) If the submitter agrees to answer questions, the Commission will ask the submitter if they choose to respond to questions orally or later in writing.
(c) Where a submitter chooses to answer questions in writing, the questions will be provided in writing to the submitter for a written response with copies provided to Commissioners.
(d) Commissioners may limit the number of questions asked.

11. Questions at oral hearings are limited to questions from other submitters and Commissioners.
Comment: Other parties, such as media or members of the public, are not entitled to ask questions during the hearing process.

12. Oral submissions will be limited generally to 30 minutes.

Findings

13. In developing its findings, the Commission may ask for further submissions or clarification from any parties to the inquiry or from any other parties it considers appropriate.

14. The Commission will publish its draft report, provide copies to submitters and invite final comments.

15. The Commission will consider final comments of submitters before reaching a decision. This may include further clarification of issues.
Comment: The Commission will not make any adverse statement about a particular organisation, group or individual without first giving them an opportunity to be heard. (See section 138 of the Human Rights Act.)

18. Information given to the inquiry will only be used for the purposes of the inquiry.
Comment: The Commission is not actively seeking to exercise the power given to it by section 92E of the Human Rights Act.

Annexe 1: Principles of Natural Justice

The right to natural justice applies in cases where the exercise of a power affects a person’s rights, obligations or interests. It covers two concepts:

A duty to hear both sides of a dispute before making a decision.

In practice, this varies depending on context. Sometimes a right to consultation will be sufficient. In other cases, it includes a right to counsel and the right to cross-examine witnesses.

No one should be a judge in his or her own cause.

Annexe 2: Legal Framework under the Human Rights Act 1993

The Human Rights Act sets out the general framework and legal obligations applying to the Commission in conducting the Inquiry.

Section 5(2)(h) of the Human Rights Act forms the basis of the Commission’s inquiry power. It provides the Commission with the following function:

“To inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or nongovernmental, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights.”

A number of other provisions support this role and provide the parameters of how inquiries should be conducted.

Section 92E provides that if the Commission considers that an inquiry by it under section 5(2)(h) has disclosed or may have disclosed a breach of Part 1A or Part II of the Act, it may bring civil proceedings before the Human Rights Review Tribunal provided that the exercise of this right will facilitate the performance of its functions stated in section 5(2)(a).

Provisions applying to the conduct of inquiries

Part V of the Human Rights Act specifically relates to the conduct of inquiries. Section 126A provides that the Commission may apply to the District Court for an order that a person provide documents, information or give evidence in relation to an inquiry conducted by the Commission under section 5(2)(h).

Section 127 provides that the Commission may require a person subject to an order under section 126 to produce documents or provide information; or the Commission may summon and examine that person on oath.

Section 127(3) provides that the examination of persons in the context of an inquiry is deemed a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 as it relates to perjury. This means that a person can be prosecuted for perjury under the Crimes Act for knowingly making a false assertion of fact or opinion in the context of an inquiry conducted by the Commission.

Section 128 provides that every person shall have the same privileges as witnesses in court in relation to giving information, answering questions and production of documents to the Commission. This reflects a well established principle of law that witnesses are not compelled to give evidence if they can claim privilege under one of the various headings of privilege (for example, privilege against self-incrimination).

Section 130 provides that no proceedings shall lie against Commissioners, the Director of Human Rights Proceedings and all staff for statements made in the course of the exercise of duties under the Act unless it is shown they are made in bad faith.

Miscellaneous provisions

Section 138 provides that the Commission must not, in any report or statement made under the Act make any comment that is adverse to any person unless that person has had an opportunity to be heard.