Malcolm King has been waiting nearly four years for a decision from the Human Rights Review Tribunal. Photo / Dean Purcell
Four long years so far.
That's how long the wait has been for Malcolm King to get justice, for what he says was abusive treatment by police.
King, who's severely claustrophobic, says he told the staff who arrested him for trespassing at his ex-partner's house about his illness, but was locked in a cell anyway.
Whether he was mistreated or not and whether he's entitled to any compensation is a matter now sitting with the Human Rights Review Tribunal after he first put forward his case in 2018.
It took two years to get to a hearing, and now it's taken two years for the Tribunal to make a ruling, and they've given no indication about much longer it's going to take.
"It's ongoing for me. Every time I see a police car, I just relive things," he said.
"I just want it over and done with; I don't understand why it's taking so long."
The Tribunal is charged with hearing 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 data released to Open Justice, the average time it takes for the country's foremost human rights court to deal with issues that complainants bring to the table is two years.
That figure has nearly doubled since 2015, despite the government appointing five new deputy chairs to the board in an effort to help clear the backlog of cases.
When King was told that his case was going ahead a few days before Christmas in 2018, he said it was the "best present he could have hoped for".
However, that feeling soured during the two-year wait to get a hearing, and has spoiled during the now two-year wait for a decision.
When he last asked about his case, he says he was fobbed off.
"They just said all the usual s**t - 'It's in the pipeline, we're working on it, it's coming…'"
"They've got the power I suppose, they don't have to do or tell me anything. It's inhumane."
In order 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 a person can elevate it to the Human Rights Review Tribunal.
Under the Human Rights Act, an individual also has the right to apply to the Director of Human Rights Proceedings for free legal representation, and if they're successful, the representation and costs of bringing the claim are met by the taxpayer.
The current director, Michael Timmins, told Open Justice that his office advises clients not to expect a resolution to come any faster than two years.
"It's a stressful endeavour for them not then get a result for years - that causes a significant impact on my clients, and I have several clients who contact me once a month asking for an update," he said.
As for why it's taking long for the Tribunal to release their decisions, he doesn't know. But he does have some ideas about how to speed them up.
"The Ministry needs to take a look at the Tribunal and consider what it needs, because the backlog is just too great," he said.
"Perhaps looking at how it's made up, because it's been in its current format for the last twenty years."
Timmins said the Tribunal, despite not being very well-known, was especially important because it gave members of the public an ability to challenge the state.
"Because of that importance, it needs to be properly resourced," he said.
"We've had years of delays, years of under-resourcing."
By comparison, the High Courts of New Zealand have an expectation that 90 per cent of their judgements will be delivered within three months of the conclusion of the hearing.
Last year, they dealt with 3591 cases across the 17 courts, while the Human Rights Review Tribunal dealt with 59.
However, the Tribunal doesn't have a mandated delivery time for any of its decisions.
They're simply done when they're done.
In September last year, the UN Committee on the Rights of Persons with Disabilities released a report on New Zealand's human rights and people's access to justice.
In its report, the Committee said it was concerned about the "significant length of time" it took the Tribunal to resolve complaints, and recommended that it be better-resourced with more staff and more money.
The head of the Human Rights Commission, Paul Hunt, said his organisation has a vested interest in the outcomes of the Tribunal because it can refer cases to it, and he was concerned about the delays.
He said he had criticisms of the Tribunal process, but not of its people.
"However, justice delayed is justice denied, and the time it takes for a resolution does worry me," he said.
In terms of a solution to the problem, he wants to see a review of how the Tribunal operates, and suggests that removing some of the formality of the hearings might speed things up.
"At the moment, they're run a bit like a High Court," he said.
"The Government have appointed five new deputy commissioners and still the delays continue."
The Privacy Commission also has the ability to forward complaints to the Tribunal - however, its head Michael Webster declined to be interviewed, saying it was inappropriate to comment on another organisation's operational resourcing.
In the last few weeks, the Ministry of Justice appointed Sarah Eyre as the new chair of the Human Rights Review Tribunal. She also declined to be interviewed for this story.
However, Ministry of Justice group manager for Courts and Tribunals, Jacquelyn Shannon, said in a statement that Tribunal claims were often complex.
"The challenge of these cases is the time taken to prepare, hear and determine the claim," she said.
"There has also been an increase in the number of new claims filed."
Shannon said Covid had impacted the Tribunal, and some matters were unable to proceed under lockdown and traffic light restrictions.
She said the bulk of the Tribunal's workload fell almost exclusively on its chairpersons, and they were responsible for writing all the decisions and determining interim order applications.
"The Privacy Act 2020 expanded the range of applications the Tribunal may receive and introduced the ability for the Tribunal to make new orders from December 2020," she said.
"This required the Tribunal to develop new processes to support these changes and undertake additional training."
Justice Minister Kiri Allan said the Government had signalled its intention to conduct a review into the Human Rights Act, which sets out the functions and powers of the Tribunal.
"The scope and timing of this review is not yet confirmed, but could include an assessment of the impacts of the 2018 changes and consideration of further ways to make the HRRT more effective," she said.
Allan said that currently, the legislation governing the Tribunal did not set out a timeframe for the resolution of cases.
National's justice spokesperson Paul Goldsmith said the long delays at the Tribunal were sadly part of a wider story of long delays to justice.
"Similar delays are encountered in the criminal and civil courts, the Employment Relations Tribunal, and many places," he said.
"Equally, the examples of more money going in, followed by worse outcomes, is equally widespread."
He said the Labour Government could be criticised for not giving sufficient priority to dealing with the slow access to justice, across the board.
Sarah Eyre's predecessor at the head of the Tribunal, Rodger Haines KC, wrote to the incoming Labour Government and said it was "ironic to say the least" that the body charged with protecting human rights was now depriving people of those rights through huge delays.
"The delays in the Tribunal are reaching the point where the system is in danger of falling into disrepute if not collapsing," Haines wrote, warning it would take five years to clear the backlog.
"The overall delays will become even more egregious. As one who, since at least 2015, has endeavoured to have the problem remedied, I find the present situation unconscionable."
The Government's response was to appoint five new deputy chairs in 2019 to share the load. Prior to their appoints Haines had effectively been working alone, as the law as it stood meant he had to hear every case personally.
In 2018, Parliament passed the Tribunals Powers and Procedures Legislation Act, which made changes to the Human Rights Act 1993 to help reduce the backlog that had developed in the Human Rights Review Tribunal.
The amendment to the Act meant deputy chairpersons could also hear a case, and gave the Tribunal more power to dismiss frivolous or vexatious claims and the ability to refer cases back to the Human Rights Commission for mediation.
As for Malcolm King, he just wants a decision so he can put it all behind him - ideally this side of Christmas.
