denied the right to a fair hearing or the right to face their accusers.

In a nutshell, this is the conflict of principles which has arisen in the case of Elbow Beach general manager Bill Shoaf and the Human Rights Commission.

The Commission decided that there was "overwhelming and credible'' evidence that Mr. Shoaf made racist statements.

Mr. Shoaf is alleged to have said in reference to attendees of the World Conference of Mayors that clothes were being sold in the lobby of the hotel, adding: "Next they will be frying chicken on the front steps'', a clearly derogatory statement when made in reference to the mayors and their entourages, the vast majority of whom were black.

Mr. Shoaf's lawyers deny he made the statements; they also say he was never told who his accusers were and never had the opportunity to attend a hearing to put his side.

The Human Rights Commission said Mr. Shoaf had not committed an offence because the statements were made in private and because there was no intent to promote ill will or hostility, grounds for dismissal of the complaint allegedly made clear to the Commission five months ago.

The reason that the Human Rights Act specifies that offences must be committed in public and must be intended to promote hostility is to avoid violating another fundamental right -- that of free speech.

This follows the assumption that you are allowed to say what you wish in private because it can be presumed that it will do no damage to anyone else.

To use the old freedom of speech test, if you shout "fire'' in your own home, no damage is done, but if you do it in a crowded theatre, you are likely to cause panic and injury in the ensuing rush for the doors.

Under amendments made to the Human Rights Act in the last Parliament, the Commission was given the right to pursue investigations on its own initiative, whereas previously there always had to be a complainant.

This was seen as a weakness, because people who feared for their jobs or livelihoods would be afraid to bring complaints to the Commission. It would also enable the Commission to initiate investigations where there was no specific victim -- for example if racist statements were made on television or in a newspaper.

But this is a right which needs to be handled carefully. Should it be used to start witchhunts or to allow anonymous people to make unfounded allegations which must then be investigated, it could become very dangerous, particularly when HRC hearings are held in private, and according to Mr. Shoaf's lawyer anyway, deny the accused certain basic rights of reply.

To be fair, the HRC has not had the opportunity to respond to Mr. Shoaf's lawyers' claims and denies some of the allegations, although it has not specified which ones.

But the HRC should not have the right to make distinctions between guilt and innocence. Judges cannot say to an accused person, you are really guilty, but because of this technicality you are free to go, even if that is what they think. The HRC should not be able to say a person is innocent in spite of the "overwhelming'' evidence against him or her. If Mr. Shoaf made the statement, the hotel's owners should discipline him and ensure that all staff recognise what statements are offensive; but it seems amazing that none of the people in the meeting did not take the time then, or in the ensuing days to point this out.

Instead Mr. Shoaf, without a hearing and despite the fact he has broken no law, has been effectively branded a racist.

The HRC may have been frustrated by the law, and well-intentioned in its desire to expose and eradicate racism, but should that have been done by trampling on other established rights? Does the Commission, charged with the protection of human rights, really want to send out the message that the end justifies the means?