Search for a Race Relations Commissioner on hold as applicant sues Minister of Justice

Saturday, 20 October 2018

Colin Henry is suing the Minister of Justice over what he claims was an unlawful selection process for the role of the country's Race Relations Commissioner.

Appointing a Kiwi Race Relations Commissioner is on hold while an international human rights lawyer sues the Minister of Justice over the selection process.

Colin Henry, a Jamaica-born Aucklander, claims the process was unlawful.

The former commissioner, Dame Susan Devoy, left in June, after a damning Ministerial review into a sexual harassment scandal, which identified serious 'toxic' dysfunctions.

Henry applied in the Auckland High Court for a judicial review of the process candidates underwent.

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Justice Minister Andrew Little, who oversees the Human Rights Commission, has confirmed the search for a Race Relations Commissioner is on hold.

Henry also applied for an interim injunction on the commissioner appointment. Justice Minister Andrew Little, the minister in charge of the Human Rights Commission, confirmed the process was on hold, pending a decision by Justice Sally Fitzgerald.

A naturalised New Zealand citizen, Henry is the vice president of the Refugee Council of New Zealand and a High Court barrister and solicitor.

It was Little's job to recommend replacements to the Governor-General.

Henry believed he could transform the Race Relations Commission into a 'vibrant and effective office, particularly with respect to marginalised immigrants'.

The role was publicly advertised twice- in May and July. When it was readvertised, Henry was told he was still being considered and did not need to reapply.

In September, he was advised he had not been shortlisted, later learning two candidates were short-listed in July before the second advertisement was placed.

Henry claimed by re-advertising the position before completing consideration of the applicants to the first ad, Little defeated the legitimate expectations that he had created in the applicants.

The immediate past Race Relations Commissioner Dame Susan Devoy left the role in June.

He believed the appointment process was not open and transparent.

Furthermore, when Henry asked for feedback on his application, the Ministry said the independent panel 'made no record' of its discussions about candidates.

'I found that astonishing. This is a public agency, and the public has no way of knowing, did it use legitimate criteria?'

Henry sought for the selection process be put on hold until those that applied to the first ad, including himself, were fully considered and notified.

'Either we're in, or we're out. So what they should have done before re-advertising, is notify the two that were selected, that they were in, and the remaining 32 applicants that they were out.'

Andrew Little confirmed the process was on hold and while it was before the court, it was 'inappropriate' for him to comment further.

Justice Fitzgerald said at a hearing in the High Court, her decision for the interim injunction may take weeks.

If granted, that meant New Zealand could be without a Race Relations Commissioner for at least a year.

Marcelo Rodriguez Ferrere, a senior lecturer at the University of Otago's Faculty of Law, would be surprised if that happened. He anticipated a strike out application would quickly move the matter on.

'The process could have been better - I completely understand and agree with Mr Henry on that point, and there could have been better communication, but I don't think that those two things give rise to any arguable ground of review.'

Henry could apply under the Official Information Act for the reasons not to appoint him to the role, and even if no record existed, it would have to be created, Ferrere said.

It was 'bizarre' of him not to do so first.

'He has taken the nuclear option here, because it costs a lot to file judicial review proceedings, and he has gone straight for the most severe approach.

Devoy has since moved to Melbourne, and thought the role needed to be filled.

'Whilst I was far from perfect, at least I was a voice. People could agree or disagree, but at least I was there to stand up and make comment about things that were happening,' Devoy said.

The former champion squash player was appointed commissioner in 2013 by then Race Relations Minister Judith Collins, who was forced to defend her decision. Devoy was criticised over a lack of relevant experience and prior comments she'd made about Waitangi Day and burqas.

'In some ways, it's been really good to get out and look at things differently. Because I didn't leave on the best of terms, probably.'