James Thurber’s story of the Bear Who let It Alone has this as its moral: “You might as well fall flat on your face as lean over too far backward.” The private members Bill regarding free speech is a call that necessarily and rightly brings the issue directly to the public in parliament rather than out in the commentariat. Hate speech is a hopelessly fraught political concept and does not fit with the rule of law.
But I do have a centrist and conservative plea in relation to the proposal to disestablish the Human Rights Commission, and it falls in line with Thurber’s moral. The risk of disestablishment is to circumscribe the promotion and the necessary existence of human rights, and the fundamental rights stemming from natural law and ideas from Classical Greece These all feature in the Universal Declarations of Human Rights 1948. These have been iterated over historical time and are core ones of liberal humanity. They act as a counterpoise to illiberal ideas from the hard collective left and Hobbesian like hard right that have scant regard for human values. These rights are more necessary now for the individual before the increasing and technologically capable Leviathan of the State.
The call for the “disestablishment of the HRC was made earlier by Mr Franks in an interview with Sean Plunket and now Mr Seymour reiterates the call. The desire to overthrow, rather than be practical and fix and make it work has a revolutionary Marxist savour to it and is misconceived. As our mainstream political discourse has moved left so the reaction to that imbalance from a neo-liberal right is unsurprising, but it may not ultimately be liberal but quasi “theocratic” in nature which is inimical to individual liberty.
There is an increasing sense of illiberalism in politics as the lines divide. Cathy Young, The Rise of the Illiberal Right’, in Quillette 11 June 2019 (https://quillette.com/2019/06/... makes a similar point. Our Western liberal values need to be held onto with both hands. Neo-Marxism and Neoliberalism are both dogmatic religious credos, both identify a problem in the world, both rely on supra-human impersonal powers and both are utopian. Utopians are oblivious to the nasty side of human nature and their credos have had little regard for human values, human decency and human lives. It would be- and historically has proven to have been- a chillingly callous cruel and inhuman world of suffering and loss of freedom of speech and conscience.
It is palpably obvious that Human Rights Commissions have suffered from the capture of from Neo- Marxist/Post Modernist ideas, which, in my view, has undermined the noble desiderata of classical human rights- the dignity of the person, freedom of speech and freedom of conscience. For example, from Australia, (where the outgoing Human Rights Commissioner Gillian Triggs in 2017 caused controversy for rule of law and equality before the law proponents when she said she would like to see Sharia Law Courts. How that would interface with Human Rights legislation principles? ) to the UK and, of course, the Ontario Human Rights Commission and its compelled speech proposal (Gender identity or expression" as a prohibited ground of discrimination) in Bill C-16 which aimed to amend the Canadian Human Rights Act 1977 and gained royal assent on 19 June 2017.
My own experiences of our HRC on the two occasions have been disillusioning to the effect why one bothers with it would and is it merely lip service? I may be a disappointed litigant but I am not alone in this experience having talked to other lawyers. First, a Mediator spent a substantial part of the session of the mediation texting under the desk on her cell phone or on her cell phone outside of the mediation session. In being severely distracted the necessary role of a mediator was lost. It was lost costs. I have serious doubts about the value of mediation in human rights cases because of power imbalance. Secondly, was the failure to engage under section 5 (h)- an excellently well-intentioned provision- where the commission can, and should more often, take on an inquisitorial role and investigate like eh Employment Relations Authority. Its failure to investigate means that a lawyer can be discriminatory (which had adverse consequences) with impunity under the disciplinary provisions of the Lawyers and Conveyancers Act 2006. A considerable effort went into this case involving what I believed was the core object of the Commission (discrimination) only to be told by a Mediator that it was something that was not going to be mediated. No one had asked for mediation. But to take the matter on judicial review is hideously expensive.
Because of my only 2 experiences were bad ones, does not mean I think it should be disestablished when it can be fixed. It needs to be fixed and centred on its core mission and on classical values and not on Neo Marxist ones. Those values are about free and not free not left and right as we are now seeing with hate speech proposal from the Government and its opposition from Mr Seymour’s Bill. If we do not get a balance, and the asymmetry of approach remedied, Thurber’s moral will appertain and it will all be cold comfort indeed.
One has to wonder if the HRC is not sufficiently independent of government and government departments. There is an issue which J S Mill alluded to in On Liberty, and that is that going against the prejudicial weight of received opinion, or as Mr Stephen Franks usefully mentioned to me recently, the power of the ‘default opinion.’ A person, for example, with a mental health issue, is unlikely to get taken seriously or heard (which is the right of free speech and being listened to, so as to evaluate truth) if say the matter involves other fellow public servants in another department.
Our institutions, public and private, while they might put up self-serving spin, are not infallible. The truth may lie in unexpected places. The Commission needs to be fearless and open-minded and not circumscribed and driven by social prevailing opinion and its fads. Human Rights values are timeless have been derived from human experience not the result of beliefs in future utopias of the left or right. The values are ones of positive humanity well worth conserving. They are not the nihilistic values of oblivion in the collective or of greed and basic instinct.
Discrimination of whatever nature is a debilitating evil with economic costs and is too quickly, and with derision, dismissed as unimportant. The slow uptake of the New Zealand Bill of Rights 1990 by lawyers has been commented on by the judiciary and academic lawyers. We should conserve what is good and fix it to make to work.
Disestablishment is unlikely given New Zealand’s international obligations. But the national dissatisfaction and the international dissatisfaction with Human Rights Commissions is the tolling of the bell calling for the need for reform.
Graham Hill MA (Hons) Ll.B (Hons)
Nelson
19 June 2019.