Unlawful appointments

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.

Stephen Rainbow is ACT's crony

Back in August, National sabotaged human rights by appointing terf and genocide supporter Stephen Rainbow as Chief Human Rights Commissioner. The Spinoff has been digging into this, and they've uncovered new information: Rainbow didn't actually get the job - until suddenly he did:

“I didn’t get the HRC role but still very keen to help out,” wrote Stephen Rainbow to Act Party chief of staff Andrew Ketels in a text message on May 22 this year. Rainbow had applied for the position of chief human rights commissioner, after being nominated by Act leader David Seymour, and been interviewed for the job in March. He did not receive a text back from Ketels.

But nearly three months later, Ketels did text. “Congratulations!” On that day, Rainbow had been announced by justice minister Paul Goldsmith as the new chief human rights commissioner. “Thanks Andrew,” Rainbow replied. “Appreciate the opportunity to serve my country.” He is due to start in his role at the commission next week.

So, Rainbow was ACT's choice, and the natural conclusion is that they pressured Goldsmith to overturn the transparent and independent appointments process to shoe-horn their saboteur into office. A saboteur BTW who commiserated with ACT about the "challenging time for your office and David as you head into Waitangi Day"... which sounds just a little bit racist, and adds to the evidence that he is a completely unsuitable appointee incapable of properly performing the functions of the office, who should be immediately sacked by the next government.

What if you run a transparent process, then ignore it?

On Friday I blogged a news story about Paul Goldsmith's appointment of terf and genocide supporter Stephen Rainbow as Chief Human Rights Commissioner, and how it appeared that he had ignored the recommendations of the appointments panel to shoulder-tap a preferred and unqualified candidate. The Spinoff was on the story as well, and has done their own piece drawing the same conclusions. And better: they've now confirmed them with a leak:

Update: The Spinoff has viewed documents with fewer redactions that show Rainbow was specifically noted as “not recommended” by the panel following his interview. Pacheco was listed as “highly appointable”. Two of the candidates for race relations commissioner (neither of whom were Derby as she was not initially interviewed) were graded as “highly appointable” by the panel.

So, just to make this clear: Goldsmith pretended to follow the Paris Principles by pursuing a transparent and independent selection process, seeking nominations from human rights groups and civil society and appointing a highly-qualified independent panel to assess them. He then took that panel's recommendation, threw it in the bin, and appointed completely unqualified candidates for reasons which have been kept secret (likely because they are embarrassingly inadequate, and possibly unlawful). Obviously, this is not how appointments to quasi-constitutional offices should be made. And again, the next government should respond to this violation of our constitutional norms by sacking the unqualified cronies the moment they take office.

Goldsmith's "transparent" human rights appointment process

Back in August, National sabotaged human rights by appointing terf and genocide supporter Stephen Rainbow as Chief Human Rights Commissioner, and terf and white supremacist Melissa Derby as Race Relations Commissioner. The appointments seemed calculated to undermine public confidence in the Commission, and there were obvious questions about how they happened. So I asked, using the OIA. I got the response back today, and its crystal clear that Justice Minister Paul Goldsmith did not follow a proper appointments process, instead parachuting his preferred candidates in to the interview process, then appointing them - possibly explicitly against the advice of the independent panel he had appointed to do the job.

The full documents are here. Note that they are incomplete, and fail to include panel reports on the successful candidates. My request was also poorly phrased, and did not ask for Goldsmith's communications around the appointment, but there were obviously several important ones. But judging from the documents, this is what happened:

• In December 2023, the Ministry of Justice advised Goldsmith on the need to appoint new EEO and Race Relations Commissioners, and the upcoming need to appoint a new Chief Commissioner. They remind the Minister of the Paris Principles, which require that there is a transparent process for appointments and that an independent review panel advise the Minister. They recommend the appointment of such a panel.
• Later in December, they do a followup briefing about the need to advertise the positions. They also suggest writing to government caucuses. Goldsmith does so.
• In February 2024, he appoints an independent panel, consisting of retired judge Terrence Arnold, former Attorney-General (and National MP) Chris Finlayson, human rights lawyer Paul Rishworth, and iwi chairs representative Lorraine Toki to assess the applications. They do their job properly, and in March they report back with a shortlist (p30). Neither Rainbow or Derby's name appears on it.
• Despite this, later in March Rainbow appears on the interview list. It appears that Goldsmith wrote him in, and bumped another candidate to do so. The recommendations of the panel are (of course) redacted, but if they'd recommended his appointment, they wouldn't be.
• Sometime after this, Goldsmith "asked for the panel to interview Dr Melissa Derby for the position of Race Relations Commissioner" (p46). The panel's views on her are not included.
• In June the appointment goes to Cabinet's Appointments and Honours Committee. The Ministry of Justice's briefing on this (p44-45) and recommendations (p46) suggest strongly that Rainbow was not the candidate recommended by the panel (if he was, then his name would be recommended on p46, and there would be no redaction). Instead, he seems to be recommended as a second-choice because of some redacted objection to the recommended candidate.
• And just like that, Goldsmith's two preferred candidates are appointed!

As noted above, we don't know what Goldsmith said to the panel, and we don't have their recommendations. I can go to the Ombudsman, and if I'm successful, we might know in a year or two. But one thing is clear: rather than run a transparent, independent process as required by the Paris Principles, Goldsmith simply appointed a pair of hatemongers, apparently against the explicit recommendations of the appointments panel. And when we're talking about our chief human rights body, that simply isn't good enough. having seen this appointments process, i stand by what I said in August: these people are unable to credibly perform the functions of the office. And the next government should simply sack them.