Tribunal set up to protect human rights says it is now abusing those rights through massive delays

Activist Martyn Bradbury has a case before the Human Rights Review Tribunal but faces a long wait to get a verdict. Photo / Natalie Slade

The tribunal dedicated to protecting the human rights of New Zealanders is in danger of "collapsing" under a massive backlog the previous government had been repeatedly warned about.

Documents obtained by the Herald reveal the Human Rights Review Tribunal even stopped scheduling hearings late last year because it was so behind writing up decisions for cases that had already been heard - some as many as three years earlier.

Tribunal chairman Roger Haines QC, told the incoming government 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 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.

The issues at the tribunal follow accusations by the new Government of hospital infrastructure being starved of investment and a billion-dollar prison expansion to cope with an unexpected surge in prisoner numbers.

In a letter to Minister of Justice Andrew Little in November, Haines called it a "crisis", which would be made worse the longer it wasn't fixed.

"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."

Concerns were raised with former Justice Minister Amy Adams in 2016 but problems continued into 2018. Photo / Mark Mitchell NZH 07J

"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 letter is in documents released through the Official Information Act showing concerns were raised since 2015 over rising claim numbers.

The tribunal went from 36 cases in 2012-2013 to 127 four years later. Officials told ministers they were unsure why there was such an increase but that it could be due to a great public understanding of rights.

Haines said the tribunal struggled to deal with the increase because the current law required the chairperson to hear all cases. As a result, he said "the entire load of the tribunal has been carried by one person, being myself".

Haines said former associate Minister of Justice Mark Mitchell arranged the temporary appointment of a part-time co-chairperson but it would take "five full-time decision-makers five years to eliminate the backlog while keeping up with current cases".

It meant those who had filed cases waiting 16-19 months for the first case management conference - the first step in getting a case to a hearing - and 22-28 months for an actual hearing.

"Access to justice is being denied to almost all. For a tribunal charged with protecting human rights the situation is ironic, to say the least."

He said the proposed "tribunals bill" before Parliament "was wholly misconceived and will not solve the problem" but "likely matters will be made worse".

Haines said the solution was a single change to the Human Rights Act to allow the tribunal's deputy chairs to hear cases.

A briefing from the Ministry of Justice to Little and Associate Justice Minister Aupito William Sio - who is responsible for tribunals - said it would take two chairs four years to clear the backlog without any new cases.

The delays were not only with getting hearing dates but receiving decisions: officials estimate claimants were waiting up to three years to get verdicts.

"These delays are expected to grow as the tribunal recently suspended all initial case management teleconferences and the setting down of new cases for hearing (unless they are urgent) so it can focus on writing decisions for those cases that have already been heard."

The OIA material shows the issue was raised with Mitchell in 2017 and his predecessor Amy Adams in 2016.

Adams responded to Haines in 2016, saying change was "likely to be many months away but I remain committed to achieving the outcome you propose".

Adams, now National's finance spokeswoman, said changes had been made at the time in line with advice from officials on the best way to fix the problems facing the tribunal.

She said she took action with the intent of solving the problem and "it was never suggested to me that wasn't the case".

Former associate justice minister Mark Mitchell was "sympathetic" and said he planned changes. Photo / Mark Mitchell

Mitchell, National's justice spokesman, said he met Haines last year and arranged the temporary appointment of a second chair to help ease the load.

"I was completely sympathetic to him and took steps to help immediately. If people are waiting around to have their case heard it draws us back to the old saying, that to have good justice you need to have early justice."

He said further changes had been planned when the government had changed.

Sio agreed the tribunal was in a state of "crisis".

Associate justice minister Aupito William Sio has accused the previous government of being "fixated" on tax cuts and causing the country suffering through neglect. Photo / Stephen Parker

The changes proposed by the previous Government "didn't have teeth". He said officials had developed solutions that were before the justice select committee in a bid to "meaningfully deal with the backlog".

"It's unacceptable we have the backlog of cases. The previous government were aware of it. It should never have been allowed to happen."

Sio said it was another illustration of the National government "so fixated" on pushing economic success "that the country wound up suffering".

"For the past nine years the public was told by the previous administration that the country was doing so well. Now we see, with more light being shone on our public service, that not everyone is able to access the type of justice they should expect from our system."

Activist and blogger Martyn Bradbury was among those waiting for a hearing after discovering police had unlawfully accessed his banking details during the hunt for the hacker Rawshark - a privacy breach.

Bradbury said the tribunal had been left unable to "prosecute the state for abuses of power".

"Justice delayed is justice denied and when it's against the state, how else is the individual to fight back?"