Thursday, March 21, 2013

Was Devoy's appointment unlawful?

Yesterday Justice Minister Judith Collins appointed former squash player Susan Devoy as Race Relations Commissioner. Other people have already argued strongly that this is a poor appointment, and I agree. Quite apart from her total lack of experience and dodgy views on such matters, the Race Relations Commissioner must have mana. Devoy has none. But there's another aspect to this that is worth exploring: the appointment may be unlawful.

The Human Rights Commission (of which the Race Relations Commissioner is a member) is a Crown Entity. Ministers make a lot of crony appointments to Crown Entity boards, but they can't appoint just anyone. Section 29 of the Crown Entities Act says that they may only appoint members who meet the statutory criteria of the relevant Act (if any), and that they

may only appoint or recommend a person who, in the responsible Minister's opinion, has the appropriate knowledge, skills, and experience to assist the statutory entity to achieve its objectives and perform its functions

The requirements for appointment to the Human Rights Commission are here. They're structured as a collective responsibility across the entire Commission, so its not a problem that Devoy has basically none of the knowledge or experiences desirable in subsection (1)(a). More important are the specific requirements for filling the position of Race Relations Commissioner, which require the Minister to "have regard to" the proposed appointee's
(a) understanding of current race relations in New Zealand, and of the origins and development of those relations:

(b) appreciation of issues or trends in race relations arising in other countries or internationally, and of the relevance of those issues or trends for New Zealand:

(c) ability to perform the functions stated in section 16.

I think Devoy is a clear fail on both (a) and (b). As for (c), the specified functions are phrased in administrative terms, but include "lead[ing] discussions of the Commission in relation to matters of race relations" and "provid[ing] advice and leadership on matters of race relations arising in the course of activities undertaken in the performance of the Commission's functions" - so its a fail there too.

In summary, it is highly doubtful that Devoy meets that statutory criteria for the office she has been appointed to. The advice on her appointment should make very interesting reading...