WEBVTT - How does the Human Rights Review Tribunal work - is it delivering justice for Kiwis?

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<v Speaker 1>Gielda. I'm Chelsea Daniels and this is the Front Page,

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<v Speaker 1>a daily podcast presented by the New Zealand Herald. In

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<v Speaker 1>New Zealand, there are a number of tribunals and review

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<v Speaker 1>boards you can go to when you feel things haven't

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<v Speaker 1>quite gone your way, whether you've had a bad experience

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<v Speaker 1>leaving your job, or something's gone wrong in your healthcare journey.

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<v Speaker 1>These committees are tasked with working out what has gone

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<v Speaker 1>wrong and who, if anyone, should be held responsible, but

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<v Speaker 1>some of them can be limited in how much they

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<v Speaker 1>can hold people to account. For example, the Human Rights

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<v Speaker 1>Review Tribunal is one of the few in New Zealand

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<v Speaker 1>that can award damages. Reporter Jeremy Wilkinson covers a lot

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<v Speaker 1>of these tribunals for Open Justice and he joins us

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<v Speaker 1>today on the Front Page for the first in a

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<v Speaker 1>series of exams nations of how these processes work. And Jeremy,

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<v Speaker 1>let's start with the obvious one. What exactly is the

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<v Speaker 1>Human Rights Review Tribunal.

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<v Speaker 2>Yeah, so the tribunal, it's our highest human rights jurisdiction

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<v Speaker 2>in the country. It's charged with hearing claims relating to discrimination,

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<v Speaker 2>sexual and racial harassment. Privacy breaches, and health and disability rights.

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<v Speaker 1>It can IFU.

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<v Speaker 2>Findings make awards up to two hundred and fifty thousand dollars.

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<v Speaker 1>And there are a few paths that lead you kind

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<v Speaker 1>of to this tribunal.

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<v Speaker 2>Hey, there's three pads that can get you there, each

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<v Speaker 2>through a different commissioner. So you can go through the

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<v Speaker 2>Health and disability, the privacy or the Human Rights commissioner.

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<v Speaker 2>They don't each other. They need to make a favorable

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<v Speaker 2>finding in your case for you to go up a level,

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<v Speaker 2>so to speak, to get to the Human Rights Review tribunal.

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<v Speaker 2>But you do need to kind of tick that box

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<v Speaker 2>through one of those commissioners before you can actually make

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<v Speaker 2>it to the tribunal. And that's meant to be the

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<v Speaker 2>kind of triaging.

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<v Speaker 1>Right, So let's talk through those briefly, Health and disability

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<v Speaker 1>handles issues and healthcare and will come to that with

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<v Speaker 1>you on another episode. But the Privacy Commissioner considers complaints

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<v Speaker 1>about things like breaches of privacy and access to personal information.

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<v Speaker 1>That sounds pretty broad. What kind of cases have you

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<v Speaker 1>seen considered here?

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<v Speaker 2>Yeah, So the procy Commissioner, their rulings are for the

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<v Speaker 2>most part, funnily enough, private they probabished some of their

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<v Speaker 2>rulings every year, but they're mostly anonymized. In terms of

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<v Speaker 2>a case that we've seen where we did have a

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<v Speaker 2>woman contact us with an active complaint. She was at

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<v Speaker 2>a bar and Wellington met a guy and they hooked up,

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<v Speaker 2>but it was on CCTV and one of the staff

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<v Speaker 2>members at the bar was watching on CCTV, filmed it

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<v Speaker 2>on their phone and sent it to the man's partner.

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<v Speaker 2>As partners then come in and assaulted the woman. So

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<v Speaker 2>she took the bar to the Privacy Commissioner on the

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<v Speaker 2>basis that filmed the CCTV and distributed it. The result

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<v Speaker 2>of that wasn't given to us, but often parties will

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<v Speaker 2>reach a settlement, but the Privacy Commissioner can't make a

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<v Speaker 2>damages award. But often parties will reach a settlement as

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<v Speaker 2>part of that mediation, if you like.

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<v Speaker 3>Paula Hamilton went to the Deanery three years ago for

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<v Speaker 3>help with her alcohol problems. A good relationship with the

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<v Speaker 3>christ To Rehab Center soon turns out and ended with

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<v Speaker 3>her seeking two hundred thousand dollars for breach of privacy.

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<v Speaker 1>What was important to me was that he not be

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<v Speaker 1>allowed harm all those sort of establishments harm people again.

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<v Speaker 3>Now she's been awarded forty thousand dollars damages for humiliation

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<v Speaker 3>and loss of dignity. The Human Rights Review Tribe NAL

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<v Speaker 3>says the Deanery is guilty of serious breaches.

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<v Speaker 1>And the Human Rights Commissioner. I think we can all

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<v Speaker 1>imagine the worst type of human rights abuses, like war

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<v Speaker 1>crimes and the like, but I don't imagine our commissioner

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<v Speaker 1>is tackling those cases on the regular is he? So

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<v Speaker 1>what are they looking at?

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<v Speaker 2>So the Human Rights Commission doesn't actually publish its cases,

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<v Speaker 2>even anonymously, but we do see them as they filter

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<v Speaker 2>through to the Human Rights Review Triviunal. I think one

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<v Speaker 2>that stands out to me has been the case of

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<v Speaker 2>Judith Webe. She subjected her flatmate. He's a professional immigrant

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<v Speaker 2>who was trying to set up a place to live

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<v Speaker 2>when he got to New Zealand, and she's subjected him

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<v Speaker 2>to a racist tirade that was so severe that the

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<v Speaker 2>tribunal ordered that she paid him twenty eight thousand dollars.

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<v Speaker 2>That was a couple of years ago. So that's the

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<v Speaker 2>kind of ruling that the Human Rights Commissioner would deal

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<v Speaker 2>with first and then it goes up to the Human

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<v Speaker 2>Rights Review Tribunal.

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<v Speaker 1>So once the case gets to the tribunal level, so

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<v Speaker 1>to speak, what happens from there and how long can

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<v Speaker 1>these processes take?

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<v Speaker 2>It can take two years, according to an OAA released

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<v Speaker 2>to NZME. I suppose, for context, high Court judges are

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<v Speaker 2>expected to deliver judgments within three months, while their average

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<v Speaker 2>is two years. In reality, we actually see people waiting

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<v Speaker 2>a lot longer than that. Some people there we've talked

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<v Speaker 2>to have waited two years after lodging a complaint to

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<v Speaker 2>get a hearing, and then they've waited another two years

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<v Speaker 2>to actually get a decision from there. Some experts speculate

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<v Speaker 2>that the various commissioner's ability to not award damages means

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<v Speaker 2>that people don't feel that justice has been achieved at

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<v Speaker 2>that lower level. So they kind of reach the end

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<v Speaker 2>of the road with the Privacy commission or the Human

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<v Speaker 2>Rights Commissioner and think, okay, so what now and the

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<v Speaker 2>what now is the Human Rights Review Tribunal?

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<v Speaker 1>What are some more cases that you've covered from the tribunal?

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<v Speaker 2>Judith Weby is the one that again stands out for me.

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<v Speaker 2>She keeps cropping up over and about her again a

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<v Speaker 2>few more times, not through the tribunal, but that was

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<v Speaker 2>one that does stand out for me. There was another

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<v Speaker 2>really interesting one, a guy in the whited Upper called

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<v Speaker 2>Stephen Butcher. He objected to his photo being on his

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<v Speaker 2>driver's license because it was his interpretation that when you

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<v Speaker 2>encode a photograph digitally, it turns into a series of

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<v Speaker 2>zeros and ones, and those zeros and ones and his

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<v Speaker 2>estimation could spell out six sixty six or the mark

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<v Speaker 2>of the beast, and that went against his Christian religion.

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<v Speaker 2>That was a pretty wild case where they flew up

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<v Speaker 2>a historian from Dunedin to give the expert evidence on

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<v Speaker 2>this thousand year old piece of papyrus that Stephen Butcher

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<v Speaker 2>presented his evidence. Suffice to say, he did not win

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<v Speaker 2>that and he must have his photo on his driver's

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<v Speaker 2>license if he wants to drive like everyone else in

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<v Speaker 2>New Zealand.

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<v Speaker 1>I guess that's a perfect starting point to my next question,

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<v Speaker 1>I suppose, and I want to ask about what kinds

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<v Speaker 1>of cases can be heard and if there's any limit,

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<v Speaker 1>because based on some of your recent reporting and that

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<v Speaker 1>case that you've just told me there, it doesn't seem

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<v Speaker 1>like there is any limit. What can you tell me

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<v Speaker 1>about a man named Timing Zong.

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<v Speaker 2>Yes, so, mister Zong has had five rulings through the tribunal.

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<v Speaker 2>Some of them have had more merit than others. One

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<v Speaker 2>of them, he took the Redhill Restaurant in Wellington to

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<v Speaker 2>the tribunal because he wanted to eat a meal called

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<v Speaker 2>a hot pot, which is generally shared, and he wanted

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<v Speaker 2>to just pay for one person, but he'd have to

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<v Speaker 2>pay the full sharing price as just the way the

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<v Speaker 2>restaurant and the meal is set up, so he took

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<v Speaker 2>them to the tribunal for that. He took Samsung to

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<v Speaker 2>the tribunal Samsung's New Zealand branch because his Chinese simcard

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<v Speaker 2>wouldn't work in his phone. He took Apple Apple New

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<v Speaker 2>Zealand sales to the tribunal because he claimed that his

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<v Speaker 2>iPad's voice function was racist. And he tried to take

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<v Speaker 2>the James Cook Hotel in Wellington to the tribunal as

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<v Speaker 2>well when they gave him Coke zero instead of Coke

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<v Speaker 2>no Sugar, which was what it was advertised on their menu.

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<v Speaker 2>The Tribunal was called many of his claims frivolous, but

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<v Speaker 2>they can't stop him making the claims and this is

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<v Speaker 2>where that triajin from the other three commissioners kind of

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<v Speaker 2>comes into play, and that Zen would have had to

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<v Speaker 2>take his complaints to any one of those three commissioners,

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<v Speaker 2>and it doesn't matter if they make a no finding.

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<v Speaker 2>He's ticked that box, so he can now take it

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<v Speaker 2>up another level. The Director of Human Rights proceedings's a

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<v Speaker 2>guy called Michael Timmins, and he's spoken to The Herald

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<v Speaker 2>before about how that triaging from those bottom or those

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<v Speaker 2>lower level commissioners needs to perhaps be more more effective,

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<v Speaker 2>or perhaps those commissioners need more power to stop frivolous

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<v Speaker 2>claims advancing and to help resolve claims before they need

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<v Speaker 2>to go up another level.

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<v Speaker 4>The Human Rights Tribunal has found the Crown breached the

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<v Speaker 4>privacy of Kim dot Com. In twenty fifteen, the Attorney

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<v Speaker 4>General rejected dot COM's requests for access to all information

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<v Speaker 4>held about in my government ministers and departments. The reason

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<v Speaker 4>given was that the Internet mogul's request were vexatious and trivial.

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<v Speaker 4>Now the Tribunal has found there was a breach of

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<v Speaker 4>privacy and has now ordered the Attorney General to play

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<v Speaker 4>him ninety thousand dollars in damages.

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<v Speaker 1>So I suppose anyone can just take a case up

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<v Speaker 1>if you've got the money for it. What sort of

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<v Speaker 1>impact does that have on the process.

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<v Speaker 2>We actually see quite a few people self represented through

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<v Speaker 2>the tribunal, So there has been quite a few inmates

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<v Speaker 2>or former inmates taking the Department of Corrections through the

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<v Speaker 2>tribunal or breaches of privacy and a breach of privacy

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<v Speaker 2>here in this context is where you apply for information

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<v Speaker 2>from any agency new jay them. They don't have to

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<v Speaker 2>be government. You can apply for no leaning to send

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<v Speaker 2>you any information it has about you under the Privacy Act.

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<v Speaker 2>So we're seeing lots of people who apply for this

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<v Speaker 2>information and it's not released. It's a similar process to

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<v Speaker 2>the IA process. I suppose we see a lot of

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<v Speaker 2>people who don't have money for a lawyer. They will

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<v Speaker 2>actually just progress a claim self represented through the tribunal

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<v Speaker 2>and actually they do often have a fair bit of success.

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<v Speaker 1>So if you don't have the money, but you do

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<v Speaker 1>feel like you've had your human rights breached, say what

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<v Speaker 1>are the options available to you? Then?

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<v Speaker 2>So, as we mentioned before, you can self represent or

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<v Speaker 2>the Director of Human Rights Proceedings he is in a

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<v Speaker 2>tax funded position where he can take certain cases on

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<v Speaker 2>and progress them through the tribunal on your behalf. It's

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<v Speaker 2>quite an essential function because it means that people without

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<v Speaker 2>the means to take serious claims, or without the time,

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<v Speaker 2>energy or knowledge to research the Human Rights Act or

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<v Speaker 2>the Privacy Act or the Health and Disability Act, it

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<v Speaker 2>means they can be represented by someone who is familiar

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<v Speaker 2>with that and they can seek justice in that manner.

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<v Speaker 1>You've spoken to people who have gone through these tribunal processes.

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<v Speaker 1>Do they feel like it's worth it?

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<v Speaker 2>The phrase it's often touted as justice delayed is justice denied,

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<v Speaker 2>And when you're waiting four years sometimes from claim to ruling,

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<v Speaker 2>can probably feel like it's not with it. But then again,

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<v Speaker 2>there was a guy we covered, Malcolm King. He's claustrophobically

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<v Speaker 2>locked in a police cell, waited four years for a decision.

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<v Speaker 2>He said it was incredibly frustrating, but at the end

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<v Speaker 2>of the day he was represented for free by the

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<v Speaker 2>Director of Human Rights Proceedings and one forty five thousand dollars.

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<v Speaker 2>So incredibly frustrating to wait four years, but he didn't

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<v Speaker 2>need to pay for a lawyer out of any of

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<v Speaker 2>those fees. I suppose as another factor to again bring

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<v Speaker 2>it back to Judith withbe she was ordered to pay

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<v Speaker 2>twenty eight thousand dollars but hasn't paid it, so it

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<v Speaker 2>was it worth it for the complaint in there? Maybe not?

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<v Speaker 2>The government departments tend to pay up, but the tribunal

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<v Speaker 2>doesn't actually have the power to enforce its own orders.

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<v Speaker 1>None of the.

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<v Speaker 2>Tribunals in New Zealand do. Finally enough, they can make

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<v Speaker 2>an order, but then it needs to be backed up

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<v Speaker 2>by the district court, at which point your bailiffs can

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<v Speaker 2>get involved, or you can get money taken directly from

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<v Speaker 2>a salary or a benefit. But again that takes more

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<v Speaker 2>time and energy.

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<v Speaker 1>What's the argument for giving tribunals and review committees these

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<v Speaker 1>kind of things more powers.

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<v Speaker 2>There's a Ministry of Justice kind of working group that

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<v Speaker 2>looked at this and they were looking at potentially giving

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<v Speaker 2>the dispute tribunal more power. One of their recommendations was

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<v Speaker 2>to actually double the damage's capped for the Disputes Tribunal

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<v Speaker 2>from thirty thousand dollars to sixty thousand dollars, which this

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<v Speaker 2>current government has has put forward, so that that's something

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<v Speaker 2>they're aiming to progress in terms of giving tribunals more power.

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<v Speaker 2>I don't think there is among experts and among the

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<v Speaker 2>recommendations that we've seen, that's not something that seems to

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<v Speaker 2>be on the table because New Zealand operates on a

0:13:10.200 --> 0:13:12.679
<v Speaker 2>trust basis. Right, you can go and buy, you can

0:13:13.000 --> 0:13:15.600
<v Speaker 2>fill your car up and then pay for petrol, for example,

0:13:15.679 --> 0:13:18.000
<v Speaker 2>and that kind of filters down into the way that

0:13:18.280 --> 0:13:21.600
<v Speaker 2>we operate as a society. We tend to trust people.

0:13:21.640 --> 0:13:24.400
<v Speaker 2>And ninety nine percent of people who have a tribunal

0:13:24.480 --> 0:13:26.920
<v Speaker 2>order made against them see you know, the Ministry of

0:13:27.000 --> 0:13:30.240
<v Speaker 2>Justice letterhead and they think, oh, I have to pay that,

0:13:30.360 --> 0:13:32.160
<v Speaker 2>and they don't look into it any further. But there

0:13:32.200 --> 0:13:34.680
<v Speaker 2>is a very small percentage in people who don't pay,

0:13:34.840 --> 0:13:38.760
<v Speaker 2>or perhaps can't pay so they won't pay. Undergoing massive

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<v Speaker 2>law changes in order to give tribunals more power. Is

0:13:42.040 --> 0:13:44.120
<v Speaker 2>that something and it's worth it? From the advice to

0:13:44.559 --> 0:13:46.679
<v Speaker 2>the Ministry, it isn't worth it.

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<v Speaker 1>Thanks for joining us, Jeremy.

0:13:48.760 --> 0:13:49.360
<v Speaker 2>No worries.

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<v Speaker 1>That's it for this episode of the Front Page. You

0:13:56.679 --> 0:14:00.640
<v Speaker 1>can read more about today's stories and extensive news at

0:14:00.679 --> 0:14:04.440
<v Speaker 1>enzed Herald dot co dot nz. The Front Page is

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<v Speaker 1>produced by Ethan Seals, Dan Goodwin is the sound engineer.

0:14:09.200 --> 0:14:13.600
<v Speaker 1>I'm Chelsea Daniels. Subscribe to the front page on iHeartRadio

0:14:13.840 --> 0:14:17.240
<v Speaker 1>or wherever you get your podcasts, and tune in tomorrow

0:14:17.440 --> 0:14:19.800
<v Speaker 1>for another look behind the headlines.