Chief Human Rights Commissioner criticises double standard in the public sector reform bill

Chief Human Rights Commissioner criticises double standard in the public sector reform bill

February 24, 2020

Chief Human Rights Commissioner, Paul Hunt, says the current Public Service Legislation Bill before select committee contains a glaring double standard concerning how the public sector would deal with human rights and he is calling for an amendment to the Bill.

Speaking before the Governance and Administration Select Committee on Wednesday 19 February, Paul Hunt, the Chief Human Rights Commissioner, said the Bill contains “the most spectacular double standard I have seen for a very long time. If the Bill can uphold the human rights of the public service, it can also uphold the human rights of the public.”

“The Bill’s grave shortcoming is that it does not require public service employees to pay any explicit attention to the rights and freedoms of everyone else in New Zealand. The oversight is especially remarkable because it runs against a strong current, within Parliament and the public service, flowing in the opposite direction.”

For example, the Oranga Tamariki Act, 1989, explicitly requires human rights to be “respected and upheld”. 

The speech before the Governance and Administration Select Committee came as part of the Human Rights Commission submission on the Public Service Legislation Bill. The 23-page submission recommends as its primary recommendation that the Committee amend clause 9 of the Bill (its overarching purposive clause) to provide that a purpose of the public service is to uphold New Zealand’s domestic and international human rights commitments. This recommendation is also endorsed by the Privacy Commissioner. 

“Human rights represent legally binding commitments on the Government and on the public service. They contribute to good, strong, effective policymaking. Human rights enhance fairness and social inclusion – provided they are listened to.”

“I appreciate that a Bill cannot address everything. But the omission of a requirement for the public service, as a minimum, to explicitly take into account the human rights obligations recognised by New Zealand law is extremely serious. Such backsliding places the country in breach of its international commitments.”

Oral Submission presented to the Committee on 19 February, 2020

Our time is very short. Committee members have the Commission’s written submission. I will not repeat it. Instead, I confine myself to two points.

One, there is much to commend in this Bill.

Unfortunately, time does not permit me to rehearse the Bill’s significant merits.

Two, unsurprisingly in a Bill of this complexity, it has shortcomings.

I will focus on just one of them. It is a very grave shortcoming, but easily remedied with a few words.

A grave shortcoming

To make my point, I begin with the Bill’s excellent clause 20.

Clause 20 secures all the rights and freedom in the NZ Bill of Rights Act 1990, and Human Rights Act, for all public service employees. In other words, the Bill explicitly acknowledges the rights and freedoms of public service employees.

This is just as it should be.

The Bill’s grave shortcoming is that it does not require public service employees to pay any explicit attention to the rights and freedoms of everyone else in New Zealand.

In short, explicit human rights are good for public service employees – but not for everyone else.

This is the most spectacular double standard I have seen for a very long time.

When public service employees are devising policies and advising Ministers, you would expect them to give explicit attention to New Zealand law. You would expect a public service employee to reflect, ‘This policy should take on board this or that law’. You would expect an employee to advise, ‘Minister, this is the law which is relevant to your policy.’

The Minister is free to disregard the advice, but the public service employee should provide it. That’s not a lot to ask.

Human rights are about things that are especially important to human beings. That’s why our society gives them the elevated status of human rights.

It’s reasonable to expect public service employees to say, ‘Minister these are the human rights relevant to your policy – and, moreover, these rights can strengthen and deepen your policy.’

The Bill goes to great lengths to explicitly secure the human rights of public service employees – but it fails to require public service employees to explicitly take into account NZ’s binding national and international human rights commitments from which we all benefit.

I presume this remarkable double standard is an oversight.

The Bill is out of step with trends in NZ and overseas

The oversight is especially remarkable because it runs against a strong current, within Parliament and the public service, flowing in the opposite direction. I’ll just mention five examples:

  • Oranga Tamariki Act, 1989, explicitly requires human rights to be “respected and upheld”. 
  • Children’s Act, 2014, includes a very similar provision. 
  • Intelligence and Security Act, 2017, requires the relevant agencies to perform their functions “in accordance with … all human rights obligations recognised by New Zealand law”. 
  • Privacy Bill 2018 explicitly says it is to give effect to the International Covenant on Civil and Political Rights. 
  • In Chamberlain v Minister of Health (2017), Harrison J, in the Court of Appeal, said “the Ministry [of Health] must take into account of New Zealand’s obligations deriving from the [Disability Rights] Convention and reinforced by the [Disability] Strategy”.  (There are many court decisions along these lines)

Scotland, Canada, Germany, Finland and other countries increasingly give explicit recognition to their national and international human rights commitments in their different policy-making processes.

How could the Bill be amended?

There are at least three options. The addition of a few words to one or more of the following:

  • clause 9 (purpose) and/or
  • clause 10 (principles) and/or
  • clause 11 (spirit of service to community).

Different formulations could be used e.g.:

  • uphold national and international human rights commitments, or 
  • in accordance with all human rights obligations recognised by New Zealand law, or 
  • respect for the human rights obligations recognised by New Zealand law, or
  • explicitly take into account …., or 
  • have due regard to …..

Conclusion

Human rights represent legally binding commitments on the Government and on the public service.

They should not be reduced to an empty tick-box compliance check as already completed policy papers approach Cabinet.

Human rights should not be an after-thought. They should be on the policy table, in the mix, at the beginning of the policy process. They contribute to good, strong, effective policy making. Human rights enhance fairness and social inclusion – provided they are listened to.

I appreciate that a Bill cannot address everything.

But the omission of a requirement for the public service, as a minimum, to explicitly take into account the human rights obligations recognised by New Zealand law is extremely serious.

Such backsliding places the country in breach of its international commitments.

If the Bill can uphold the human rights of the public service, it can also uphold the human rights of the public.

Click here to read the written submission. 

Click here to read Paul Hunt's op-ed in The Dominion Post.