HINES & ANOR v THE ATTORNEY-GENERAL OF NEW ZEALAND [2018] NZHC 1776

HINES & ANOR v THE ATTORNEY-GENERAL OF NEW ZEALAND [2018] NZHC 1776 [18 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1460[2018] NZHC 1776IN THE MATTER of an application under s 122A of the HumanRights Act 1993BETWEEN DAVID HINESFirst PlaintiffTANYA JACOBSecond PlaintiffAND THE ATTORNEY-GENERAL OFNEW ZEALANDDefendantOn the papers:Counsel: G Little for PlaintiffsP Rishworth QC for CrownF Joychild QC for Human Rights CommissionS E Greening for Churches Education Commission (party givenleave to appear before the Human Rights Review Tribunal)Judgment: 18 July 2018JUDGMENT OF CHURCHMAN J[1] On 13 October 2016, the plaintiffs commenced proceedings in Human RightsReview Tribunal (the Tribunal) seeking declarations that certain sections of theEducation Act 1964 and the Education Act 1989 are inconsistent with the right tofreedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act1990. The substance of the claim relates to religious education occurring in Stateschools.[2] The Human Rights Commission gave notice of its intention to appear as anintervenor pursuant to its functions under ss 5(2)(j), 92H(1)(a) and 92H(2) of theHuman Rights Act.[3] On 28 February 2017, the Churches Education Commission Trust Board (CEC)gave notice of intention to appear and call evidence, and that application was grantedin Hines v Attorney-General (Application by Non-Party to be heard).1[4] A first amended statement of claim was filed by the plaintiffs on 23 May 2018.The removal application[5] The Tribunal has a significant and growing backlog of cases. The Chairpersonof the Tribunal is on record saying that, for most of the litigants before it, it has ceasedto function.[6] On 15 June 2018, the plaintiffs applied for an order that their proceedings inthe Tribunal be removed to the High Court for determination.[7] Section 122A of the Human Rights Act 1993 sets out the circumstances inwhich a removal order may be made. The plaintiffs have relied on three of thosegrounds:(a) that important questions of law are likely to arise in the proceedingsother than incidentally;(b) the nature and urgency of the proceedings mean that it was in the publicinterest that they be removed immediately to the High Court; and(c) that in all circumstances the High Court should determine theproceedings.[8] The Tribunal issued a decision on that application on 26 June 2018. It heldthat the central question at the heart of the proceedings was whether the current1 Hines v Attorney-General (Application by Non-Party to be heard) [2017] NZHRRT 9.provisions of the Education Act 1964 which authorise religious instruction in Stateprimary schools are inconsistent with the right to protection from discrimination onthe grounds of religious and ethical belief under s 19 the New Zealand Bill of RightsAct. It concluded that the proceedings held considerable public policy implicationsfor the State school system and would directly impact upon the hundreds of schoolswhich currently hold religious instruction programmes under the Education Act 1964.[9] The Tribunal rejected the plaintiffs' claims that there was any urgency to theseproceedings.[10] The Tribunal accepted the plaintiffs' claim that, as a result of the major delaysbeing experienced in the Tribunal, it could be said that, in all of the circumstances, theCourt should hear these proceedings. However, before the proceedings can betransferred from the Tribunal to the High Court, the High Court must grant leave unders 122A(1) of the Human Rights Act 1993. The Tribunal was unable to make an orderfor removal because it did not presently have the leave of the High Court. The Tribunalconfirmed that if such leave was obtained, it would make the necessary formal ordersremoving proceedings to the High Court.Discussion[11] The Court accepts that these proceedings are likely to raise important questionsof law. The Court also accepts that there have been major delays in processing casesbefore the Tribunal and that a substantial and unacceptable backlog has occurred.However, the delays are not particular to this specific case but seem to be systemic.[12] One of the concerns I have in relation to this application is that if the delaysbeing experienced were held to justify removal to the High Court, then there may wellbe a flood of applications of a similar nature to the present one.[13] It would not be appropriate for this Court to become in effect the first instancebody considering these applications merely as a result of the inability of the Tribunalto address its work backlog. The Court does not have the specialist expertise found inthe Tribunal and it is clearly Parliament's intention that parties alleging a breach oftheir human rights will have their concerns determined in the first instance (other thanin a limited type of situations covered by s 122A), by the specialist Tribunal set up tohear such matters.[14] For many of the claimants before the Tribunal, their cases will involve issuesthat are of profound significance to them, and also issues of novel and, at timesdifficult, points of law.[15] In the present case, the Court is effectively in the invidious position of sayingthat the particular rights or question of law involved are of greater importance or havea greater claim to priority than the many other important matters that the Tribunal hasto deal with.[16] Making an application under s 122A cannot be regarded as a solution to thesystemic problems of delay besetting the Tribunal. It must remain the exception ratherthan the rule that cases are transferred out of this specialist jurisdiction and into theHigh Court.[17] However, by a fine margin, I am satisfied that this is such an appropriate case.[18] I am influenced by the fact that the defendant, the Human Rights Commissionand CEC have all filed memoranda abiding the decision of the Court. Had there beenactive opposition from any of these parties, particularly on the grounds that this caserequired the application of the specialist expertise found in the Tribunal, then theoutcome of this application may well have been different.[19] Accordingly, I find that the requirement of s 122A(2)(a) of the Human RightsAct 1993 is met on the basis that an important question of law arises in theseproceedings, and I grant leave for the removal of these proceedings to the High Courtfor determination under s 122A(1). Leave is also granted for the proceedings to becommenced by originating application.Churchman JSolicitors:Davenports City Law, Auckland for PlaintiffsCrown Law, Wellington for Crown