Human Rights Review Tribunal

The Tribunal

The Human Rights Review Tribunal was originally established in 1977 under the Human Rights Commission Act as the Equal Opportunities Tribunal. Its name was changed to the Complaints Review Tribunal in 1993, and then in 2002 it was changed again to become the Human Rights Review Tribunal.

The Tribunal is comprised of a Chairperson and a panel of up to 20 other members. Panel members are appointed for their knowledge or experience in aspects of matters likely to come before the Tribunal; human rights law (domestic and/or international); public administration; economic, employment or social issues; cultural issues and the needs, aspirations and experiences of different communities and population groups in New Zealand society. Deputy Chairpersons have been appointed from time to time to deal with particular cases.

In each hearing the Tribunal is made up of the Chairperson and two other members, selected on the basis of geographic location, availability, experience with the issues in the particular case and so on.

The current Chairperson of the Tribunal is Mr Royden Hindle. Mr Hindle has qualifications in law from the Universities of Canterbury (1982) and Cambridge (1985). He was admitted to practice in 1983. He is a Fellow (Arbitration) of the Arbitrators’ and Mediators’ Institute of New Zealand.

There are presently 14 Tribunal members aside from the Chairperson, including a total of 5 people who are either practising lawyers or who have legal qualifications. Appointment to the panel is by the Minister of Justice.

Cases are usually heard where the events giving rise to them have taken place.

Sources of jurisdiction

The Tribunal has three sources of jurisdiction:

The Privacy Act 1993

The Health and Disability Commissioner Act 1994

The Human Rights Act 1993.

Powers

Each of these statutes has different rules as to who can bring a claim to the Tribunal. Although the remedies that the Tribunal can award in each case are similar, they are not identical. As a result care needs be taken before making generalised statements about what the Tribunal can do in any case. In broad terms, however:

There are powers to make formal declarations;

The Tribunal can award compensatory damages for actual losses suffered and/or lost benefits - although typically awards are for injury to feelings, humiliation and/or loss of dignity. The Tribunal has the same monetary limit as the District Court, i.e., $200,000 (in some situations cases can be remitted to the High Court if a greater award is indicated). The highest award to date is $40,000 made in respect of a claim under the Privacy Act - see Hamilton v The Deanery 2000 Limited (HRRT Decision 28/03, 29 August 2003);

There is a power under the Health and Disability Commissioner Act 1994 (but only that Act) to award punitive damages if flagrant disregard of the plaintiff's rights is demonstrated - see Director of Health and Disability Proceedings v DG (Fan) (HRRT Decision 3/05; 25 February 2005); and Director of Health and Disability Proceedings v Peters (HRRT Decision 36/06; 25 September 2006);

The Tribunal can make restraining orders to prevent repetition of any contravening conduct – see, e.g., E F G v Police (HRRT Decision 48/06; 21 December 2006);

The Tribunal has power to make various other orders - e.g., an order requiring a health care provider to undergo remedial training (as in Director of Health and Disability Proceedings v DG (Fan), HRRT Decision 18/05; 28 June 2005);

There is power to award costs (these can be significant - a survey of cases in the three years to the end of 2005 shows that costs awards to successful litigants after a defended hearing in the Tribunal have ranged from a low of $765/day to a high of $4,166/day with an average of around $2,500/day – see Anderson v Claymore Management Ltd & Barclay (HRRT Decision 31/05; 1 November 2005).

Since 1 January 2002 the Tribunal has had the power to declare acts or omissions of:

(a) the legislative, executive or judicial branches of government, or

(b) a person or body in the performance of any public function, power or duty to be inconsistent with the right to freedom from discrimination affirmed by s.19 of the New Zealand Bill of Rights Act 1990. An act or omission will not be inconsistent with those rights if it is shown to be a ‘justified limitation', -i.e., one which is a reasonable limit on the right in question such as can be demonstrably justified in a free and democratic society. In the case of an enactment, any declaration of inconsistency must be reported to Parliament, and the government is then obliged to attend to the matter within certain set time limits: see generally Part 1A of the Human Rights Act.

Appeals

Appeals are to the High Court and (with leave) to the Court of Appeal on a question of law. There is also a possibility to appeal to the Supreme Court.

Decisions

Most of the Tribunal's decisions since 2002 are available on line at NZLii: www.nzlii.org

Privacy Act 1993

Cases are brought in respect of alleged infringements of the Privacy Principles in the Privacy Act (or the Rules of Codes issued by the Privacy Commissioner; usually being the Health Information Privacy Code 1994). The Privacy Act governs agencies in dealing with personal information, e.g. in its collection, storage, use and disclosure, and in respect of allowing access to and correction of personal information by the individual to whom it relates.

The provisions controlling access to the Tribunal - particularly for aggrieved individuals where the case is not taken by the Director of Human Rights Proceedings or the Privacy Commissioner - have been considered in a number of recent cases including Lehmann v The RadioWorks Limited (HRRT Decision 20/05, 22 July 2005) and KI v Gilligan Sheppard (HRRT Decision 21/05, 22 July 2005). Anyone considering the possibility of bringing a claim under the Privacy Act in the Tribunal may find the following flow diagram (which has been taken from the decision in the Lehmann case) to be helpful:

Appendix A: Circumstances in which an aggrieved individual can commence proceedings in the Human Rights Review Tribunal

Some examples of cases under the Privacy Act are:

Pointu v Employrite (HRRT Decision 11/02, 1 October 2002) - confidentiality of a pre-employment reference;

Hamilton v The Deanery 2000 Limited (cited above) - disclosure of personal health information;

Marino v Department of Corrections (HRRT Decision 16/04, 7 May 2004) - access to personal information;

MacMillan v Department of Corrections (HRRT 41/04, 3 August 2004) - access to personal information;

Waugh v New Zealand Association of Counsellors (HRRT Decision 24/05, 5 August 2005) - access to personal information, correction and use

Director of Human Rights Proceedings v Richardson (HRRT Decision 36/05; 21 December 2005) – discovery of documents in Privacy Act claims;

Stevenson v Hastings District Council (HRRT Decision 7/06; 4 March 2006) – collection of personal information;

Herron v Spiers Group Limited (HRRT Decision 12/06; 30 March 2006) and in the High Court Herron v Speirs Group Limited (Unreported, High Court, Auckland, CIV 2006-404-002277, 21 March 2007 per Andrews J, Ms J Binns and Ms D A Clapshaw) – use of information and whether interference with privacy established;

Yeo v McDowell (HRRT Decision 11/06; 29 March 2006) – disclosure of information and remedies;

Dijkstra v Police (HRRT Decision 16/06; 25 May 2006) – access to personal information;

K I v Gilligan Sheppard (HRRT Decision 31/06; 11 August 2006) – storage of personal information;

Lehmann v Canwest Radio Works Ltd (HRRT Decision 47/06; 12 December 2006) – collection of personal information, whether interference with privacy established;

E F G v Police (cited above) – disclosure of personal information;

Health and Disability Commissioner Act 1994

The Health and Disability (Code of Health and Disability Services Consumers' Rights) Regulations 1996 (‘the Code') is promulgated under the Health and Disability Commissioner Act 1994. It sets out the standards expected of health care providers in areas such as respecting patient privacy, ensuring that services comply with relevant legal, ethical or other professional standards, providing full information, informed choice and consent, and so on.

Recently, the circumstances in which an aggrieved person can commence proceedings under the Act independently of the Director of Health and Disability Proceedings have been extended. Provided the Health and Disability Commissioner has investigated the circumstances and formed a view that there has been a breach of the Code, an aggrieved person will be entitled to bring proceedings before the Tribunal even if the Commissioner has not referred the matter to the Director, or the Director has declined or failed to take proceedings.

Some examples of cases under the Code are:

Director of Health and Disability Proceedings v A (Huang) (HRRT Decision 35/03, 1 December 2003);

Director of Health and Disability Proceedings v DG (Fan) (cited above);

Director of Health and Disability Proceedings v K B M (Leighton) (HRRT Decision 27/05; 29 August 2005);

Director of Health and Disability Proceedings v Marks (HRRT Decision 37/05; 23 December 2005) [ subject to judicial review, yet to be determined ]

Director of Health and Disability Proceedings v Peters (HRRT Decision 36/06; 25 September 2006).

Human Rights Act 1993

The Human Rights Act deals with things like unlawful discrimination (discrimination on grounds e.g. of race or ethnic origin, gender, sexual orientation, political opinion, employment status, disability) including sexual harassment, inciting racial disharmony and indirect discrimination.

Some examples of cases under the Human Rights Act are:

Shiu v Mohammed Naseeb (HRRT Decision 17/04, 10 May 2004) - sexual harassment;

Main v Topless (HRRT Decision 6/04, 26 March 2004) - sexual harassment;

Williams v Pacific Plastic Recyclers Limited (HRRT Decision 47/04; 15 September 2004) - sexual harassment and the liability of employers/ employees;

Director of Human Rights Proceedings v Smith (HRRT Decision 050/04, 11 November 2004) - sexual harassment;

Smith v Air New Zealand (HRRT 30/05, 22 September 2005) - discrimination on grounds of disability [currently under appeal];

Lewis & Edwards v Talleys Fisheries Ltd. (HRRT Decision 19/05, 18 July 2005) - gender discrimination and victimisation [currently under appeal];

Bissett v Peters (HRRT Decision 33/04, 10 August 2004) - inciting racial disharmony.

The declaration of inconsistency jurisdiction (see para 9 above) is reasonably new, and the power has not yet been exercised. There has however been a decision on a preliminary issue of standing to bring proceedings: Child Poverty Action Group v Attorney-General (2005) 7 HRNZ 939 and (in the High court) Attorney-General v Child Poverty Action Group (Unreported, High Court, Wellington CIV 2006-485-1713, 16 October 2006, per Miller, J.). The jurisdiction under Part 1A of the Human Rights Act is also discussed in:

Morrison v Housing Corporation (HRRT Decision 45/06; 8 December 2006);

Howard v Attorney-General (HRRT Decision 46/06; 11 December 2006);

Trevethick v Ministry of Health (HRRT Decision 7/07; 4 April 2007).

Contact Details:

Secretary
Human Rights Review Tribunal
Private Bag 32001
WELLINGTON

Contact Numbers:

Ph: (04) 462-6660
Fax: (04) 462-6686