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NRT: Was Devoy’s appointment unlawful?

Written By: - Date published: 10:30 am, March 22nd, 2013 - 47 comments
Categories: human rights, Judith Collins, law - Tags:

No Right Turn asked an interesting question yesterday about how the appointment of Susan Devoy was made.

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…


47 comments on “NRT: Was Devoy’s appointment unlawful?”

  1. Roy 1

    While agreeing that the appointment of Devoy is a dismal choice, I wonder what the legal definition of “have regard to” means? Any legal-eagles around here able to define that?

  2. Nick 2

    As the post itself notes, those terms are not legal requirements for a Race Relations Commissioner to hold, such that anyone who can be proven to not meet those requirements can be sacked through judicial review. They are only things the Minister must have regard to when making the appointment of a Race Relations Commissioner.

    So to say that “it is highly doubtful that Devoy meets that statutory criteria for the office she has been appointed to” is very misleading. The only statutory criteria is that the minister considers those things. Can you prove she didn’t?

    The criteria also clearly don’t go to the views of the commissioner, just their ‘understanding of race relations’ and ‘appreciation of issues’. Perhaps it’s your view that if the person writes a column you disagree with she has no idea what she is talking about, but you can’t really prove that she doesn’t know anything about race relations.

    • framu 2.1

      its more that her column kinda proves she doesnt know what shes talking about – it shows that she either doesnt know or doesnt care about knowing

      its the same thing as when any public figure says something stupid and ill informed – more often than not it boils down to either they are idiots or its deliberate – either of which is an instant disqualification from being taken seriously

      • kiwi_prometheus 2.1.1

        “same thing as when any public figure says something stupid and ill informed”

        But for you anyone that contradicts your world view is by definition ‘stupid’.

  3. CnrJoe 3

    I like Trotters take on it – I understood him to say its a revenge appointment for two terms of deBries

  4. Roy 4

    I don’t know why anyone would suppose she is intelligent, or expect her to be intelligent. She is just a sportswoman. Very few sportspeople are intelligent, although I will concede that Peter Snell is an exception to that general rule.

    • Populuxe1 4.1

      Wow, that’s arrogant, ignorant and pretty much ridiculously wrong on so many levels as a quick scan of a list of Rhodes Scholars quickly demonstrates. I really don’t understand this need to make the left look like a bunch of pompous, snotty, elitist whiners by bagging sport and athletes.


      • Rich 4.1.2

        That just indicates that the committee that picks Rhodes Scholars, in line with the expressed wishes of the old fascist, often has a hard on for jocks. (Rhodes did, in more ways than one)

        • Roy

          What Rich said.

          • Populuxe1

            So you didn’t have a good time in PE? Chris Laidlaw is such a glaring old right wing fascist isn’t he? You sad, bitter little people.

            • Colonial Viper

              So you’re putting your cards down in that you think that Devoy has the intelligence and the smarts for the position?

              • Pascal's bookie

                Well to be fair, Pop does seem to think that listing Rhodes Scholars who have sporting accomplishments disproves a claim that few sports people are very intelligent.

                Not to weigh in that point itself, but a list of Rhodes scholars does nothing to disprove it.

                Especially given the selection criteria fro Rhodes Scholars:

                “Rhodes’ legacy specified four standards by which applicants were to be judged:
                Literary and scholastic attainments;
                Energy to use one’s talents to the fullest, as exemplified by fondness for and success in sports;
                Truth, courage, devotion to duty, sympathy for and protection of the weak, kindliness, unselfishness and fellowship;
                Moral force of character and instincts to lead, and to take an interest in one’s fellow beings”

              • Populuxe1

                I’m saying nothing of the kind, merely pointing out that sporting achievements and intelligence are by no means mutually exclusive. I’m not going to pass fudgment on Devoy until I see her in action in the role.

                • Populuxe1

                  Oh, very well, I’ll chuck in a “No True Scotsman” fallacy and raise you an argumentum ad ignorantiam.

            • Roy

              I did fine in PE, represented my school in fact, but I wasn’t such a meathead as to make a career out of it, so I wound up with a PhD instead. Thanks for asking.

      • Draco T Bastard 4.1.3

        So, that was to prove Roy’s point? There certainly wasn’t a lot of sports people in the list.

      • Murray Olsen 4.1.4

        Being chosen as a Rhodes Scholar has a lot to do with your perceived fitness as a good servant to the British Empire. It has far more to do with family connections, knowing the right people, being a school prefect, and playing sports than any academic excellence. If you want to support your case, you’d be better off looking at Commonwealth Scholarships.
        In any case, unless a majority of top sportspeople were Rhodes Scholars, your argument is meaningless. I could walk into a paint shop and find 3 cans of blue paint. This says nothing about what’s in the other cans.

  5. chris73 acualy is Dolan 5

    “the Race Relations Commissioner must have mana. Devoy has none.”

    Um 4 time world champion, charity work, volunteer work and community work…yeah no mana there whatsoever

  6. Populuxe1 6

    “(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.”

    This is all sounding a bit like sour grapes. Devoy only has to satisfy the minister in these regards, and they’re only guidelines, not actual legal obligations as such, nor is there any strict definition of what “understanding” or “appreciation” is intended to mean. Ok, it’s pretty much a show appointment, but to try and make out it’s illegal is actually quite ridiculous and petty.

    • Pops in regards to (a) above that says “understanding of current race relations…”

      devoy says, “She declined to say what the issues facing New Zealand race relations were, as she was not yet in a position to do so, but has “more reading than a library” to prepare for the role.”

      note the “more reading than a library” to get up to speed – that says to me that she doesn’t have a understanding of current race relations and therefore it is correct to question the appointment.


      • Populuxe1 6.1.1

        Yes, but no precise definitions are stipulated beyond “an understanding” which could begin anywhere from New Zealand is officially bicultural and begins with the Treaty of Waitangi in 1830 between the Maori iwi and hapu and the British Crown. Yes it’s a loophole in the wording, but it’s still there.

        • Colonial Viper

          Just accept that it’s a fucked up appointment mate. Finding the small print isn’t going to make the shit smell any nicer.

          • Pascal's bookie

            It all depends on what you want the RCC to be.

            If you want it to be a place that minorities can feel safe in approaching, you’ll appoint people with certain understanding of race relations. If you don’t, you’ll appoint people with a different understanding.

            So it’s a fucked up appointment if you think the RCC should say things that might make Kiwiblog commenters upset now and then, but it’s a great appointment if you think it should make them comfortable.

          • Populuxe1

            I wasn’t saying it wasn’t (still reserving judgement on that) – just pointing out it’s not an illegal one.

            • McFlock

              Well, that would be up to a judge. If Devoy is patently not up to the job, then it would be odd for all factors to be taken into account and the appointment still being made.

              And the outcome in that hypothetical scenario could well fall into whether lip service was applied at the time to those principles, or Collins just divvied out patronage (with this government, it’s quite possible that they might actually believe they’ve gone back to the time of Henry VIII).

              If lip service were actually applied, I also suspect that the judge would take into account just how sanely it was applied, passing some sort of test for plausibility of analysis while not challenging the minister’s discretion (fine line).

        • marty mars

          no – if you understand you don’t need to do more reading than a library to get more understanding.

          but sure we know it is a political bullshit appointment that hopefully collins will get thrown back in her face.

        • Pasupial

          Even the declaration of independence was after 1830, the Treaty signing at Waitangi was a decade later (and it took some time after that to get signatures of southern iwi). Why should one regard Populexel’s opinion as having merit when such basic facts are in error?
          Still, the guidelines may indeed be vaguely worded; this seems an argument for more stringent examination of appointees rather than less. The “loophole in the wording” line seems an announcement of contempt for democratic principles.

        • Murray Olsen

          Haha. If she agrees with you that the Treaty dates from 1830, she really is unqualified. I bet you weren’t even good at sports.

  7. Draco T Bastard 7

    So, can it be taken to court?

    • Pascal's bookie 7.1

      There’s potential for a review of the appointment process I suppose. NRT has OIAd the documents so we’ll see what the advice was, and if there is any evidence the Minister paid due attention to it I guess.

  8. Ross 8

    Once Dame Susan has completed her 5 year stint as commissioner and then lands a list seat with the Labour Party, all previous criticism of her will be forgotten. Seems fair, right?

    • Colonial Viper 8.1

      If she’s a National Party member she’ll join the National list.

      • ghostwhowalksnz 8.1.1

        She secured a position as an elected member of the ADHB by being chosen on the Citizens And Ratepayers ticket- she bailed out of that job after 18 months.

        C&R ? A high indicator of being a tory

  9. Visubversaviper 9

    I believe she was a C&R candidate when she stood for the Health Board. I also recall that she didn’t finish the term.

  10. Treetop 10

    Someone like Sandra Lee would have been my pick for the R.R C.

    A five year appointment is a long time for a person who does not have a proven track record for a position which requires a person to get it right.

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