Exclusive: New leadership hires at the Human Rights Commission were contrary to recommendations made by the independent panel tasked with leading the process, documents released under the Official Information Act reveal.
On a quiet Friday afternoon in August, justice minister Paul Goldsmith announced the appointment of three leadership roles at the Human Rights Commission: Stephen Rainbow as chief human rights commissioner, Gail Pacheco as equal employment opportunities commissioner and Melissa Derby as race relations commissioner. The three are scheduled to take up their new roles next month.
Human rights commissioner appointments have historically been uncontroversial, even if the commissioners themselves sometimes court controversy in the role. But the appointments of Rainbow and Derby in particular sparked questions of process and intent, largely surrounding Rainbow’s vocal support of Israel and both Rainbow and Derby’s history of anti-trans views.
As the minister who oversaw their appointments, Goldsmith defended his decisions at the time, telling RNZ, “People express all sorts of views before they take up these roles, but I have every confidence that he will go about his work in a very open and inclusive way.”
But documents released under OIA to The Spinoff last week suggest the recruitment process wasn’t straightforward, with neither Rainbow nor Derby being put forward as shortlisted candidates by the independent panel tasked with conducting the “transparent process”.
The search for three new commissioners
In seeking to fill the race relations commissioner role left vacant by Meng Foon (who resigned in July 2023 after failing to disclose receiving emergency housing grants), an email was sent by the Ministry of Justice to “approximately 100” community organisations and individuals in September 2023 seeking “suitable candidates” for the position. Expressions of interest were open until November 3.
In total, there were 10 expressions of interest, which the ministry considered below average (there were 41 applications when the role was previously advertised in 2018). In a briefing to the minister of justice, Goldsmith, in December, the ministry’s chief legal counsel Jeff Orr outlined the hiring process, including the “strong expectation” to appoint an independent assessment panel of “three or four” people to recommend a shortlist of candidates, interview them, and recommend appointments to the minister.
“While the final decision on who to recommend for appointment will be yours,” wrote Orr, “the panel will have a significant influence on the selection process.”
As for the panellists themselves, Orr pointed to the need for “expertise in both subject matter and governance on the panel”, and Māori representation. He recommends a number of people, two of whom are Sir Terence Arnold and Paul Rishworth KC. “I note the Iwi Chair Forum has expressed interest in being involved in the selection process… the Ministry sees this as a strong option.”
At the same time, Orr noted that sitting chief human rights commissioner Paul Hunt’s five-year term would end in early 2024 and that Hunt was interested in reappointment if Goldsmith chose to. Goldsmith opted to re-advertise the role.
Due to the small number of applicants for the race relations commissioner role and the soon-to-be vacant roles of the equal employment opportunities (EEO) commissioner and chief human rights commissioner, it was suggested by Orr that the three roles be re-advertised and recruited together and that Goldsmith invite nominations from government caucuses.
Those invitations were sent from Goldsmith’s office to the three coalition parties later that month. A deadline of January 19 (for external expressions of interest) and February 7 (for coalition party nominations) was given.
The independent panel and the shortlists
In February 2024, following the deadline for expressions of interest, the Ministry of Justice briefed the four members of the assessment panel. The panel was made up of:
- Sir Terence Arnold (chair)
- Hon Chris Finlayson KC
- Paul Rishworth KC
- Lorraine Toki (Iwi Chairs Forum rep)
“The panel’s first job will be to confirm the shortlists for the three positions,” read the briefing.
On March 6, the shortlists for all three positions were presented to Goldsmith via a briefing from the Ministry of Justice. The shortlists were whittled down from all expressions of interest, which remained low in number despite the re-advertising.
- Chief commissioner (12 expressions of interest)
- EEO commissioner (9)
- Race relations commissioner (18)
The panel recommended three candidates for EEO commissioner. Two unsuccessful candidates’ names are redacted in the documents released and the third candidate named is Dr Gail Pacheco, who would eventually be offered the position.
The panel recommended five candidates each for chief commissioner and race relations commissioner. All 10 names have been redacted, suggesting none of the panel’s shortlisted candidates got the job.
In a summary of all applicants for the chief commissioner role, five (redacted) candidates are shortlisted and Rainbow is listed as an “alternative candidate” alongside the other six remaining applicants.
Derby is not included in the shortlist for race relations commissioner or in the summary of applicants as it appears her application was received after the formal interviewing process took place.
The interviews and recommendations
Interviews conducted by the assessment panel took place on March 20 and 21, with 11 interviews total. Despite not being included in the panel’s recommended shortlist, Rainbow was one of five candidates interviewed for the role of chief commissioner.
Following two days of interviews, the ministry presented the panel’s assessments and recommendations to Goldsmith for the three roles on March 26. The panel rated each of the candidates interviewed as either “highly appointable”, “appointable” or “not recommended”. The ratings for the 11 candidates are redacted in the documents but in a yet-to-be-answered written question to Goldsmith from Labour’s justice spokesperson Duncan Webb, Webb alleges that the assessment panel had graded Rainbow as “not recommended”, meaning he was not considered viable for the role of chief commissioner.
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.
The late entry
In June, three months later, the Ministry of Justice again briefed the minister on the latest developments, and requested guidance on who he wished to recommend for each of the three roles. Much of the briefing is redacted but the simplest item on the agenda is the recommended appointment of Gail Pacheco as EEO commissioner. Pacheco was on the panel’s shortlist, was interviewed, was assumed to be recommended for appointment by the panel and then endorsed by Goldsmith for the role.
Confirming the other two positions proved more complicated.
It was noted that “feedback” was given by Goldsmith on the panel’s recommended candidates (the names of which remain redacted), particularly the chief commissioner role. While some of the notes are redacted, it stated that Goldsmith pointed out “the need for the candidate to have broad support within parliamentary circles” as well as a “concern that the appointee must be an able communicator”.
The letter referred Goldsmith back to the panel’s report on Rainbow. “In regard to these key concerns, you may wish to review the panel’s assessment of Dr Stephen Rainbow,” the briefing reads. The relevant details from the assessment follows, but all of this text is redacted under the OIA provision that applies where the “release of the information at issue would inhibit the future exchange of free and frank opinions that are necessary for the effective conduct of public affairs”.
The panel report “makes the point strongly” that the chief commissioner role “may be more naturally suited to a lawyer,” says the letter, “but that is not a requirement of the legislation”.
As for the race relations commissioner role, who was recommended by the assessment panel back in March is not known, but the June briefing highlighted “an addendum to the report on appointments following the panel’s interview of Dr Melissa Derby”.
Derby’s absence from both the panel’s shortlist and recommendations report is explained: she was interviewed at Goldsmith’s request. “You asked for the panel to interview Dr Melissa Derby for the position of Race Relations Commissioner. Dr Derby was a late applicant who you agreed should be interviewed-”, with a further line of text redacted.
“Arrangements for this interview have been affected by difficulties in aligning the panel’s availability with Dr Derby’s availability,” the briefing continues. “This problem has been exacerbated by the fact-”. The remainder of the sentence is redacted.
The final appointments
The June briefing from the Ministry of Justice to Goldsmith lays out a number of action points for the minister to take. One is simple: “confirm that you wish to proceed with a recommendation for the appointment of Dr Gail Pacheco as the Equal Employment Opportunities Commissioner”.
For the role of chief commissioner, Goldsmith is offered three options:
- Appoint [redacted, therefore not Rainbow] as chief commissioner
- Recommend one of the other candidates from the panel report
- Re-advertise
For the role of race relations commissioner, there is no recommended candidate from the panel’s report for Goldsmith to accept or decline, suggesting that there were either no candidates marked “highly appointable” by the panel, or that Goldsmith was not satisfied with any of the recommended candidates. Instead, the action options are:
- Note the report from the panel, updated following Derby’s late interview
- indicate if you wish to recommend Ms Derby for appointment as Race Relations Commissioner
There were no further communications included in the OIA release from the ministry, but two months later, Pacheco, Rainbow and Derby were announced in the three commissioner roles.
Many will wonder who the independent assessment panel had initially recommended ahead of Rainbow, and who was marked as “appointable” for the race relations commissioner role before it was suggested Derby be granted a late interview.
In September, Labour’s Duncan Webb asked Goldsmith if Rainbow appeared on the shortlist of candidates provided by the ministry. Goldsmith’s response: “The ministry undertook an initial review of candidates for the chief commissioner role but did not recommend a shortlist.”
This is potentially a semantic answer, as the shortlist was recommended by the assessment panel, then briefed in by the ministry. The implication from Goldsmith that there was no shortlist is, however, false.
Of the four members of the assessment panel, Arnold, Finlayson and Rishworth declined to comment to The Spinoff about the shortlisting process and the candidates put forward to the minister, or on the final appointments. Lorraine Toki could not be reached for comment.