Friday, May 29, 2009

Politicizing The AHRC

I don't know how I missed this one, but the second amendment to Bill 44 is perhaps even more brain damaged than the first amendment was.

In its entirety, it reads as follows:

The Bill is amended as follows:
Section 16 is struck out and the following is substituted:
16 Section 22 is amended
(a) in subsection (1)(c) by striking out “chief commissioner” and substituting “Chief of the Commission and Tribunals”;
(b) by adding the following after subsection (1):
(1.1) Notwithstanding section 21, where it appears to the director at any time that a complaint
(a) is one that could or should more appropriately be dealt with,
(b) has already been dealt with, or
(c) is scheduled to be heard,
in another forum or under another Act, the director may refuse to accept the complaint or may accept the complaint pending the outcome of the matter in the other forum or under the other Act.
(c) in subsection (2) by striking out “subsection (1)” and substituting “subsection (1) or (1.1)”.


Hmmm...so just what are they tinkering with here?

It turns out to be S.22 of the act which sets out the powers of the director to intervene in a specific case. The existing legislation reads as follows
:
Director’s powers re complaint

22(1) Notwithstanding section 21, the director may at any time

(a) dismiss a complaint if the director considers that the complaint is without merit,

(b) discontinue the proceedings if the director is of the opinion that the complainant has refused to accept a proposed settlement that is fair and reasonable, or

(c) report to the chief commissioner that the parties are unable to settle the complaint.

(2) The director shall forthwith serve notice of a decision under subsection (1) on the complainant and the person against whom the complaint was made.


So, with this amendment, what does it look like?

Director’s powers re complaint

22(1) Notwithstanding section 21, the director may at any time

(a) dismiss a complaint if the director considers that the complaint is without merit,

(b) discontinue the proceedings if the director is of the opinion that the complainant has refused to accept a proposed settlement that is fair and reasonable, or

(c) report to the chief commissioner that the parties are unable to settle the complaint.

(1.1) Notwithstanding section 21, where it appears to the director at any time that a complaint
(a) is one that could or should more appropriately be dealt with,
(b) has already been dealt with, or
(c) is scheduled to be heard,
in another forum or under another Act, the director may refuse to accept the complaint or may accept the complaint pending the outcome of the matter in the other forum or under the other Act.

(2) The director shall forthwith serve notice of a decision under subsection (1) or (1.1). on the complainant and the person against whom the complaint was made.


This is interesting, because it is essentially means that the director can decide that any case can - or should - be heard in another venue.

I suspect that there are a lot of potential problems with this. The most obvious that I can see is the prospect of ministerial interference. It would not be hard for the minister to walk into the director's office one day and insist that a high profile (and politically awkward) complaint is "best heard in the courts". (Theoretically, any case can be heard in court, I suspect)

This completely undermines the purpose of Human Rights commissions in the first place. It is rare that discrimination happens on a scale that most people would say merits the cost involved in a court challenge. For that matter, few people have the financial resources to sustain a long term challenge in the first place. One of the intentions of the HRC's is to provide an avenue of appeal that does not bear the same kind of costs that a court challenge would.

According to Blackett, this is just meant to allow the commission to dismiss "frivolous" cases, but somehow, I'm beginning to suspect that this is meant for other, more insidious reasons.

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