Last year, the regime sabotaged the Human Rights Commission by appointing a pair of terfs and hatemongers as chief human rights commissioner and race relations commissioner. And when people dug into the appointment process, we found it to be the usual crony stitch-up: both candidates had been shoehorned in at the last-minute and were appointed against the recommendation of the independent panel (and in the case of for-the-time being chief commissioner Stephen Rainbow, because he was an ACT-party crony).
Now, the High Court has ruled that both appointments were unlawful, as Minister of Justice Paul Goldsmith applied the incorrect legal test and ignored mandatory considerations in his decision-making. They have not overturned the decisions - Rainbow and Derby get to keep their jobs. But there's a clear statement that the Minister of Justice failed to do what was legally required of him.
What does this mean? Firstly, I've looked at a lot of government appointments over the years, and a lot of them follow this pattern. Some of them are potentially at risk of being overturned (for example, the 2024 appointments to EECA, or maybe this year's appointments to the Waitangi Tribunal). A big problem is that ministers shoehorn candidates in and appoint them and don't say why - because the "why" is unseemly and corrupt: "jobs for the boys" / getting your own people in regardless of merit to sabotage an agency. While Ministers can subsequently explain why in court of challenged, the court was pretty suspicious of Goldsmith's evidence, implying it was an ex post facto invention to fit the case, nad basically disregarded his bland statements that of course he followed the rules, because he provided no actual detail. The upshot: Ministers are going to have to provide a better documentary record of why they make appointment decisions, and exactly how candidates fit the statutory criteria, or risk having them overturned.
Secondly, of course, this obviously affects the mana of both the candidates and the commission itself. And given the centrality of mana to the work of the commission, a decent, professional person would recognise that this made their position untenable, and resign. It remains to be seen if either Rainbow or Derby are such people.
If they're not, well: from the outset I've said that as they did not meet the statutory criteria, and are unable to credibly perform the functions of their office, the next government should exercise their lawful powers under the Crown Entities Act and simply sack them. Now that there is an explicit ruling saying their appointments were illegal, that seems even more urgent. Unlawful appointments cannot be allowed to stand. it is that simple.
Finally: again, this highlights that the key problem in state appointments is corrupt Ministers, and the solution is to remove them from the process entirely. If we want independent, lawful, merits-based appointments according to statutory criteria, then we should give the job to a permanent independent appointments panel. We already use such a process for appointing the Government Statistician (with criminal penalties for any Minister who attempts to interfere in it); we should do the same for other roles, starting with constitutional appointments and independent crown entities and working our way downwards. Ministers cannot be trusted not to behave corruptly; we can fix that problem simply by taking the job off them.
