Paul Goldsmith is considering an appeal after the court found he failed to apply the correct legal test. Photo / Mark Mitchell
By Lillian Hanly of RNZ
The High Court has ruled Human Rights Commissioner Stephen Rainbow and Race Relations Commissioner Melissa Derby were appointed unlawfully by the Minister of Justice Paul Goldsmith.
Goldsmith says he’s taking advice on the judgment and considering “next steps”, including a possible appeal.
Human rights advocate Paul Thistoll had challenged the minister’s decision to appoint Rainbow and Derby, making four key arguments.
Two of those were upheld, that the minister failed to apply the correct legal test, and failed to take into account mandatory considerations. Contentions that the minister breached a “legitimate expectation” and “made an unreasonable decision” were not upheld.
The minister opposed the argument, but Justice David Gendall found the appointments were unlawful.
The appointment of Rainbow in August 2024 had prompted concern from some quarters – including Labour and the Greens – given his staunch pro-Israel views and previous comments about “a trans agenda”.
Derby had also come in for some criticism for sharing a tweet in 2023 that said the “trans movement” could not be tolerated in civil society.
The judge explained in his ruling neither Rainbow nor Derby were part of the initial shortlist of candidates for either role. A briefing was provided to Goldsmith, seeking approval for the shortlist of candidates proposed by an assessment panel.
That panel included former Court of Appeal judge Sir Terence Arnold and former Attorney-General Christopher Finlayson, KC.
After considering the briefing, Justice Gendall said the minister requested the panel remove two names from the shortlist for the role of Chief Commissioner and add two names, including Rainbow, and did the same with the shortlist for the Race Relations Commissioner role.
After the candidates were interviewed, the panel’s assessment of Rainbow resulted in “not recommended”. The panel observed his strengths, describing him as “articulate and engaging” and having the ability to “build bridges across the political divide”, but noted his lack of legal experience.
The judge also noted the applicant, Thistoll, contended there had been “concerns raised by the Act Party” after Rainbow was initially unsuccessful, with its leader speaking directly to Goldsmith.
Derby was also interviewed, and while it considered she met several of the criteria, the panel also found Derby “lacked depth and experience”, concluding it was unable to recommend her for appointment as Race Relations Commissioner.
The minister went on to appoint Derby and Rainbow in August and both commenced their roles in November 2024.
Thistoll’s lawyer Monique van Alphen-Fyfe argued the minister didn’t “expressly consider” the commission’s detailed functions and whether Rainbow or Derby were capable of assisting in performing those functions.
The minister’s lawyer, Peter Gunn, argued it can reasonably be concluded that it is unlikely any candidate will have knowledge, skill or experience in all areas.
“Accordingly, the minister must assess the weight to give to the varying knowledge, skills and experience of each candidate.”
The judge largely accepted van Alphen-Fyfe’s argument, but also agreed no one candidate will have skills in all areas. He ruled the incorrect legal test had been applied, “therefore, narrowly, this ground of review is made out”.
Thistoll took the case as a private citizen, saying “the Human Rights Commission exists to protect the rights of all New Zealanders, particularly the most vulnerable”.
“It is vital that those appointed to lead it are selected through a lawful, robust process that respects the statutory criteria set by Parliament.”
He told RNZ “coalition dynamics were definitely in play” in these appointments. He said Act seemed “very keen” to have Rainbow appointed even though he “didn’t meet the statutory requirements”.
“The court has confirmed that the minister cannot simply bypass the legal requirements of the Crown Entities Act and the Human Rights Act.”
Goldsmith told RNZ he’d received the judgment and was taking advice on next steps, “including a possible appeal”.
“The court found that there was evidence to support both appointments, and it rejected arguments that my decisions were unreasonable.
“It also found I do not have to accept appointment panel recommendations, and could place different weight on the appointment criteria in the Human Rights Act.
“The two grounds that it did uphold by a narrow margin, could be described as technical.”
Neither commissioner will be removed from their roles as a result of the ruling as Thistoll didn’t argue for this.
– RNZ