Only one claim decided by Human Rights Review Tribunal so far this year

Malcolm King has been waiting almost three years for a decision from the Human Rights Review Tribunal. Photo / Dean Purcell

The country’s foremost human rights court has only issued one decision this year while one complainant has been waiting three years for a ruling.

Experts claim the Human Rights Review Tribunal’s low productivity is down to a lack of resourcing and effective triage system to dismiss complaints unlikely to succeed or that should never have been sent to the tribunal in the first place.

Data released to the Herald showed it takes the tribunal on average two years to produce a decision after a hearing.

By comparison, the High Courts of New Zealand have an expectation that 90 per cent of its judgments will be delivered within three months of the conclusion of the hearing.

Malcolm King has been waiting almost three years for a decision on his claim that police shut him in a cell for hours despite knowing he was claustrophobic.

“I suppose it’s the waiting that’s the worst part. Each week you hope it might come and when it doesn’t you’re a bit deflated, and then the week after that you get your hopes up again,” he said.

“It’s frustrating... I’ve had a bit of a gutsful of it to be honest.”

The tribunal does not update its claimants about a timeline for the release of its decisions, which King said was particularly annoying.

King’s claim was for $120,000 in compensation.

The Human Rights Review Tribunal is headquartered in Wellington. Photo / Jeremy Wilkinson

The tribunal has issued one substantive ruling this year, in the case of a former polytechnic tutor who claimed a car parking company breached his privacy.

A ruling provides a decision on whether a party making a claim is successful or not.

However, the tribunal said it had made 23 unpublished decisions this year to strike out claims, order suppression or refer matters back to the Human Rights Commission.

It said those types of rulings were imperative to keep the various cases moving forward.

The tribunal’s recently appointed chairwoman, Sarah Eyre, said the backlog of cases in the pipeline couldn’t be moved through the system any faster.

“The nature of the tribunal’s jurisdiction, including the high number of lay litigants, the fact that decisions are made by a panel, and the tribunal’s ongoing heavy workload means that the backlog cannot be cleared quickly,” she said.

“The work of the tribunal has also continued to be impacted by Covid-19.”

Eyre declined to be interviewed but said she’d implemented a new policy where from April this year 75 per cent of cases heard would have a decision issued within six months.

According to data released to the Herald, the average time it took to reach a decision after a hearing was held is two years.

That figure had almost doubled since 2015, despite the government appointing five new deputy chairs to the tribunal in an effort to help clear the backlog of cases.

For claims heard before April those decisions would be released “as soon as practicable”.

“An average disposal time of two years is not acceptable,” Eyre said.

Eyre said that since her appointment in August last year the tribunal had been operating without a deputy chairperson.

That position was recently filled by the former chief legal adviser at the Human Rights Commission, John Hancock.

Stephen Butcher went to court arguing driver's licence photos bore the "mark of the beast".

For a case to be heard by the tribunal a person must have first complained to either the Health and Disability, Privacy, or Human Rights commissioners.

If it can’t be resolved there then the case can be elevated to the Human Rights Review Tribunal, which hears claims relating to discrimination, sexual and racial harassment, privacy breaches, and health and disability rights. It is able to issue findings and award financial penalties.

According to the Ministry of Justice’s annual report the tribunal received 47 cases last year and disposed of 55. Of those 55 cases 12 were filed between 2021 and 2022 with the remainder filed in previous years.

Under the Human Rights Act, an individual also had the right to apply to the Director of Human Rights Proceedings for free legal representation, and if successful, the representation and costs of bringing the claim were met by taxpayers.

The current director, Michael Timmins, told the Herald his role and cases were funded by taxpayers so he was careful to make sure people knew whether their claims had any chance of success at the tribunal.

“It’s important people have access to justice… but there’s no doubt the tribunal has a number of complaints which shouldn’t be in the system,” he said.

Some cases that haven’t succeeded are the likes of Stephen Butcher - who didn’t want his photo on his driver’s licence because the binary code a computer used to make up a digital image could be hypothetically interpreted to read “666″ or the “mark of the beast”, which went against his Christian faith.

Butcher was unsuccessful and his case took five days of hearing time and a theology expert had to be called on to analyse the 1000-year-old scrap of parchment that Butcher cited as evidence to support his claim.

Minister of Justice Kiri Allan said she was aware of the backlog and had implemented several policies to help clear it. Photo / NZME

The tribunal declined the Herald’s request for information on an estimate for how much it cost to run the tribunal including paying its members as well as their accommodation and associated legal costs.

Timmins said if people were told why their complaint didn’t hold water then they might drop it rather than escalate it to the tribunal themselves.

He said he was also concerned with the amount of resourcing the tribunal was getting and said he’d like to see a “significant reallocation of resources” to help it clear the backlog.

“I think they are trying their best to get through a backlog and they need more support,” he said.

“I am hoping they have a plan to get them out of this quagmire… It sort of feels like nothing has changed.”

Timmins said on the whole the tribunal did great work and was extremely important in helping ordinary members of the public take bigger agencies.

“The types of cases that come before the tribunal are often about human dignity and dignity requires effective judicial mechanisms,” he said.

Justice Minister Kiri Allan acknowledged delays at the tribunal might be of concern and had made changes to the way it operated to increase its productivity, including the appointment of more deputies to help share the caseload and the policy to clear new cases within six months.

“It will take time for the active caseload to be worked through. Due to the complex nature of the matters heard by the HRRT, they can take significant time to prepare, hear and determine,” Allan said.

“I’m advised that the clearance of older cases is an area of specific focus for the HRRT and that the tribunal has recently introduced a new practice for decisions, which will see them send parties a written decision which will show reasons for the decision.”