Making Human Rights Complaints What can I do if I feel discriminated against? What is mediation at the Human Rights Commission? If I don’t settle at mediation, what happens? What can the Human Rights Review Tribunal do? Can I complain if a branch of the government has breached my rights? What is the Ombudsman? How do I make a complaint to the Ombudsman? How does the Ombudsman deal with a complaint? Can international law be enforced in New Zealand?
Even if you have rights under the Bill of Rights Act or an international treaty, it can be quite hard to enforce those rights under the law.
There’s often (but not always) an overlap between the rights contained in international treaties and the Human Rights Act prohibited grounds of discrimination. In these cases, it’s best to use the processes in the Human Rights Act to resolve the problems.
Where you feel you have been discriminated against under the Human Rights Act 1993, you may file a complaint with the Human Rights Commission (HRC). Upon contacting the Commission, they may determine whether you have a valid complaint of lawful discrimination. Your complaint needs to be based on one of the prohibited grounds set out in the Act (e.g. religious beliefs) and/or one of the areas of life covered by the Act (e.g. employment). Once the HRC determines that you have sufficient grounds for a valid complaint, they will first refer the matter on to mediation.
Mediation is where both sides are invited to discuss the problem informally and hopefully reach a mutual agreement. Resolution may include an apology, an agreement not to discriminate in the future, an undertaking to attend a training program, compensation, or other agreed resolutions.
Mediation is free and confidential – both parties are encouraged to not talk publically about what was discussed at the mediation.
If you cannot resolve your complaint at mediation, you have the ability to take the matter further to the Human Rights Review Tribunal. In some cases, you may be able to apply to the Director of the Office of Human Rights Proceedings for free legal assistance. The Director will usually only take cases that are significant to a lot of people – e.g. a legal situation where lots of people may have similar problems and want to know the answer to, or if it’s a case of significant importance. Where the Director is unable to provide free representation, you may still be able to take the case to the Tribunal at your own expense.
The Tribunal is a court and has a broad range of powers, including the ability to award compensation for loss suffered, such as injury to feelings, humiliation and loss of dignity of up to $20,000. However, such large compensations are extremely rare. It also possesses the power to make restraining orders and to declare acts of government or public officials as inconsistent with the right to be free from discrimination.
There will be circumstances where you might not have been discriminated against, but you feel that a branch of the government has breached your rights under the New Zealand Bill of Rights Act in some other way.
You may be able to make a complaint at the Ombudsman, who may be able to give you a recommendation. You may also apply to the courts to consider your claim under the Bill of Rights Act. However, successful claims generally only enable publicity that your rights have been breached, only very rare cases receive compensation.
You might be able to get legal aid should you bring the case to the court, but if it is not granted, this will be a very expensive and lengthy process.
The Ombudsman is a person who helps to protect people’s rights when they are dealing with government agencies like government departments, local councils, hospitals or schools.
You can make a complaint to the Ombudsman if you disagree with a decision that a government agency (including a school Board of Trustees) has made. Before making a complaint to the Ombudsman, you need to try all other ways of dealing with the problem by using any internal complaints processes that the agency has set up. After making the complaint, the office of the Ombudsman will initiate investigations and provide advice and guidance where needed.
A complaint to the Ombudsman needs to be made in writing. You can do this by e-mail, fax or letter, or by filling in an online complaint form. Your complaint needs to explain what it is that you’re complaining about, all of the relevant backgrounds to the problem, and what you have already done to try to resolve the issues. You should include any copies of letters or emails that you have sent to or received from the agency you are complaining about. You should also explain what outcomes you would like.
Once the Ombudsman has received your complaint, they will keep you updated about what they are doing with your complaint. If the problem can’t be dealt with informally, then the Ombudsman will conduct a formal investigation.
After a formal investigation, the Ombudsman will make a report and create recommendations. The Ombudsman can’t force the agency to follow its recommendations, it is up to the agency to decide whether they’ll follow the recommendations or not.
This process can be quite lengthy and can take a number of months and sometimes more than a year.
There are lots of rights that you have under international law which isn’t included in any specific laws in New Zealand. Because these international treaties aren’t a part of formal New Zealand law, you can’t go to a New Zealand court to have your rights enforced or protected.
Some international treaties or covenants might have a process where you can file a complaint with a tribunal. The tribunal can make a determination on the matter – but the judgment isn’t binding, so the New Zealand government still doesn’t have to listen to them.
Laws from other countries generally will not apply in New Zealand.