Rights Aotearoa welcomes the judgment delivered today by the High Court in Thistoll v Minister of Justice [2025] NZHC 4067, which declares that the Minister of Justice acted unlawfully in his decision-making process regarding recent appointments to the Human Rights Commission.
The proceedings were brought by our CEO Paul Thistoll, acting as a private citizen, to challenge the integrity of the process used to appoint the Chief Human Rights Commissioner and the Race Relations Commissioner.
In a significant decision for public accountability, Justice Gendall granted a formal declaration that the Minister’s decision was unlawful on two grounds:
- Application of the Incorrect Legal Test: The Court found the Minister failed to apply the strict legal tests required by the Crown Entities Act 2004 and the Human Rights Act 1993.
- Failure to Consider Mandatory Considerations: The Court ruled that the Minister failed to take into account mandatory relevant considerations regarding the specific functions and skills required for these critical roles.
Statement from the Applicant, Paul Thistoll:
“I undertook this legal challenge as a private citizen because the independence and integrity of our National Human Rights Institution are paramount.
“The Human Rights Commission exists to protect the rights of all New Zealanders, particularly the most vulnerable. It is vital that those appointed to lead it are selected through a lawful, robust process that respects the statutory criteria set by Parliament.
“The Court has confirmed that the Minister cannot simply bypass the legal requirements of the Crown Entities Act and the Human Rights Act. While the Minister has discretion, he must apply the correct legal tests and genuinely weigh the mandatory considerations—something the Court found did not happen in this case.”
Key Findings: The judgment revealed that the independent assessment panel had rated the Minister’s preferred candidate for Chief Commissioner as “Not Recommended” and was “unable to recommend” the candidate for Race Relations Commissioner due to a lack of depth and experience. Despite this, the Minister proceeded with the recommendations without adequately documenting that the statutory pre-requisites were met.
Rights Aotearoa notes that while the Court did not set aside the appointments, the declaration of unlawfulness serves a vital constitutional function. As Justice Gendall stated, there is a “clear and substantial public interest” in having these errors publicly declared to ensure that “future recommendations for the position of human rights commissioners proceed lawfully”.