7.Getting the Framework Right
Kia tika te hanga

It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
Preamble, Universal Declaration of Human Rights

7.1 Introduction /
Timatatanga

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Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu showed that New Zealand has most of the elements essential for the effective promotion, protection and fulfilment of human rights. They are:

• democracy: democratic institutions and processes that enable participation
• the rule of law: including the incorporation of international human rights standards in the national constitution and laws
• an independent and corruption-free judiciary that applies international human rights standards and jurisprudence
• good governance:effective structures of government at central, regional and local levels that recognise, respect and apply human rights standards
• specialised human rights institutions and formal procedures for accountability
• human rights information and education
• an active civil society: citizens who engage, organise and participate
• a focus on the most vulnerable parts of the population.

However, some weaknesses in our human rights framework were identified, along with a limited number of specific areas for improvement. Some of these have been addressed in other sections of the Action Plan. For example, the section on civil and political rights addresses democracy and the justice system.

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This section focuses on the remaining features of a robust human rights framework as they apply in the context of New Zealand, including the place of the Treaty of Waitangi; legal recognition and entrenchment of the full range of human rights; good governance through considering human rights in the legislative and policy development process; human rights education; and development of systems and frameworks to monitor the realisation of human rights in New Zealand.

7.2 The place of the Treaty of Waitangi /
Te turanga o te Tiriti o Waitangi

Outcome: The significance and place of the Treaty of Waitangi in New Zealand is fully recognised.

The place of the Treaty of Waitangi in New Zealand today has profound significance for human rights and for harmonious race relations. Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu reported insufficient public information, education and, most of all, dialogue and exchange on the contemporary place of the Treaty of Waitangi. The recently announced Government promotion of a public conversation on the place of the Treaty of Waitangi and the creation of a Parliamentary Select Committee to address some constitutional issues will be positive developments if appropriate processes and substantive approaches are adopted.

Priorities for action:

• Promote and support increased public discussion of the place of the Treaty of Waitangi today and in the future
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• Ensure that all New Zealanders have the opportunity to participate in public discussion on the place of the Treaty of Waitangi and in any public consideration of issues relevant to the constitutional framework for human rights in New Zealand
• Ensure that the status of the Treaty of Waitangi is part of any consideration of New Zealand ’s constitutional arrangements.

7.3 The rule of law – the legal framework for human rights in New Zealand /
Te ritenga o te ture – te anga o te ture tika tangata ki Aotearoa

Outcome: New Zealand ’s legal framework fully protects human rights.

New Zealand ’s approach to human rights generally has been pragmatic and practical rather than legalistic. Human rights, particularly economic, social and cultural rights, are currently provided for largely through policy and practice rather than through legislation upheld by the courts. Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu reflected on both the strengths and the weaknesses of this pragmatic approach, and noted the possible fragility of New Zealand ’s human rights protections in the absence of more comprehensive constitutional and legal provisions. The New Zealand Bill of Rights Act 1990, for example, can be repealed by a simple Act of Parliament. The report asked whether this approach is still sufficient to provide every New Zealander with a sense of dignity, equality and security and with recognition of their responsibilities to each other. Answering that question will require discussion and input from many New Zealanders.

The status report also identified specific aspects of New Zealand ’s human rights legislation which need to be reviewed. There are some possible gaps in the existing grounds of discrimination prohibited in the Human Rights Act 1993; for example, children under 16 years of age are not protected from age discrimination. There has also been a call for some new grounds of discrimination to be added, such as body size, gender identity, language and trade union membership. There are a number of exceptions in the Human Rights Act 1993 allowing discrimination in certain situations. An example is where employers may not be obliged to make changes necessary to enable a disabled person to do a job if those changes involve unreasonable demands on the employer. This exception has been challenged by disabled people.

Priorities for action:

• Promote discussion on the legislative status of economic, social and cultural rights as well as civil and political rights
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• Promote discussion on the merits of entrenching fundamental human rights in New Zealand ’s constitutional framework
• Review the grounds on which discrimination is prohibited in the Human Rights Act 1993 and the exceptions in Part 2 of the Human Rights Act 1993.

7.4 Good governance – applying human rights in the development of policy and legislation /
Kāwanatanga pai – te hāngai ki ngā tika tangata i roto i ngā whakaritenga ture, kaupapa whakahaere

Outcome: There is a comprehensive process to ensure that legislation and policy are developed in accordance with all human rights standards, and that human rights are respected and protected in practice.

Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu concluded that the relationship between New Zealand ’s international human rights obligations and the development of policy is not well understood. It noted that there is room for improvement in the ways in which government agencies incorporate human rights standards into daily practice.

Priorities for action:

• Adopt a key government goal that affirms the centrality of human rights to good governance
• Develop tools and processes for parliamentary and executive branches of government to achieve a stronger human rights framework for legislation and policy and practice, including strategic planning, policy development, and legislative scrutiny, for example:
• Conducting practical case studies with central and local government applying a human rights approach to new and existing policies and legislation
• Creating human rights analysis tools for the public sector to employ when developing policy, legislation, and/or practices
• Including human rights statements in local government Long Term Council Community Plans and District Plans
• Assessing how Select Committees can best take into account New Zealand ’s human rights obligations when considering legislation
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• Strengthening requirements for noting human rights compliance of papers for Cabinet Committees and of Bills by requiring reference to the full range of New Zealand ’s human rights obligations
• Providing for periodic monitoring and evaluation of human rights scrutiny processes.

7.5 Human rights education /
Mātauranga tika tangata

Outcome: There is a nationally coordinated and effective strategic approach to human rights education in New Zealand.

Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu noted that human rights education is a means to achieving the protection of human rights, as well as a right in itself. Human rights education is also an essential tool for meeting the State’s international obligation to recognise, protect, promote and fulfil human rights in this country. Current human rights education in New Zealand tends to be on an ad hoc basis in response to problems, rather than being based on a nationally coordinated and strategic approach. The report also found that there is limited evaluation of the impact of human rights education, especially the measurement of its long-term outcomes.

Priorities for action:

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• Develop a nation-wide strategic approach to human rights education in collaboration with government and non-government agencies and organisations
• Develop a framework to assess human rights education best practice and outcomes.

7.6 Accountability – monitoring human rights /
Whakatau tika – te rārangi, tātari i ngā tika tangata

Reliable and robust information on the extent and nature of human rights problems is required to address them. Research, including data collection, is necessary to show what and where the problems are, to inform the development of effective solutions, and to measure progress. Regular reporting and independent monitoring is also essential, whether by international treaty bodies, national human rights institutions or non-governmental organisations. Effective data collection and use provide the basis for effective reporting.

Outcome: Consistent, comprehensive data are collected and used for human rights reporting, problem identification, policy development and monitoring.

New Zealand ’s periodic reports to the United Nations human rights treaty bodies are a useful mechanism for monitoring human rights. To be effective these require quality information and public awareness of the reporting process and its outcomes. The Committee on Economic, Social and Cultural Rights has requested that States establish indicators and benchmarks against which their performance on economic, social and cultural rights can be measured.

Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu was the first comprehensive attempt to measure the status of human rights in New Zealand . In the process, the report identified significant gaps and limitations in existing data collection by government agencies and other statutory bodies. Even where data is collected, it is not always used or made publicly available.

Priorities for action:

• Ensure that all government agencies gather, report and use human rights data, including data that can be disaggregated in accordance with the reporting requirements under international human rights obligations, by age, gender, disability, sexual orientation and ethnicity, in particular:
• Develop an integrated dataset to record the numbers, characteristics and experiences of people in residential care facilities
• Include sexual orientation in the 2011 Census, the National Survey of Crime Victims and crime reporting processes
• Develop a database for recording the incidence of substandard housing
• Develop an effective nationwide data collection system to monitor early childhood education and school enrolment, attendance, participation, achievement, suspensions, exclusions, expulsions and transience
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• Develop mechanisms for better collection and coordination of data on complaints of discrimination
• Make the recommendations of United Nations human rights treaty bodies widely known.

Outcome: Comprehensive disaggregated data are collected about conditions of detention of disabled people and children and young people.

Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu highlighted particular concerns about gaps in data about disabled people and children and young people who are detained.

Priorities for action:

• Establish consistent collection and publication of data on disabled people in prison
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• Establish consistent collection and publication of data on people detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
• Develop an integrated dataset to record the numbers, characteristics and experiences of children and young people in institutional care.

7.7 New Zealand acting internationally /
Te tu taiao o Aotearoa

Outcome: New Zealand promotes human rights globally by ensuring that its own foreign policy, trade and overseas development policies reflect the human rights values of New Zealanders and promote international acceptance of universal human rights.

New Zealand ’s obligations to reflect human rights standards in government policy and practice apply to its international actions, including foreign policy, trade and development assistance.

In considering New Zealand ’s human rights obligations in its international activities, a range of agencies and organisations are affected. The New Zealand Government is represented in the international sphere primarily by the Ministry of Foreign Affairs and Trade and NZAID, although the responsibilities of other agencies extend beyond our borders. Other relevant groups and organisations include business and trade union organisations and NGOs.

Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu did not focus specifically on international actions. Similarly, this Action Plan is primarily concerned with improving the promotion and protection of human rights in New Zealand .

However, the division between domestic and international issues and actions is not absolute. What happens elsewhere in the world has an impact on New Zealand domestically, and New Zealand ’s actions internationally may have direct and indirect effects not only on human rights in other countries, but also, both intentionally and unintentionally, on human rights in this country.

Because of this interdependence, the Human Rights Commission has identified that further work should be undertaken to assess the extent to which New Zealand’s international policy and practice are currently consistent with its human rights obligations.

Certain distinctions would need to be drawn in doing this. Where the New Zealand government is acting internationally, those actions may be explicitly directed to promotion of human rights internationally (human rights diplomacy), or they may be explicitly directed to other objectives, such as trade, foreign policy or development, all of which may have both direct and indirect impacts on human rights.

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New Zealand 's foreign policies and practices should not only comply with our human rights obligations, but should adequately reflect the human rights values accepted by New Zealand society.

Human rights diplomacy

Human rights diplomacy work is currently coordinated by the Human Rights Division of the Ministry of Foreign Affairs and Trade. The priorities for this work are identified in response to both domestic and international concerns and the work has potential benefits domestically as well as internationally (e.g. elaboration of human rights instruments to protect vulnerable groups). This reciprocity is illustrated in the extent to which current priorities in New Zealand ’s human rights diplomacy work align with the domestic priorities identified in Human Rights in New Zealand Today / Ngā Tika Tangata O Te Motu . These include children, disabled people, women, indigenous people, violence against women and children, and particular civil rights issues, including torture and counter terrorism. Other priorities in New Zealand ’s human rights diplomacy are to some degree directed by international concerns, i.e. the death penalty, extra-judicial executions and enforced disappearances.

Priority for action:

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• Take a leadership role internationally in the completion of the Draft Declaration on the Rights of Indigenous People and the Convention on the Rights of Disabled People, and in providing protection from discrimination on the grounds of sexual orientation.

Mainstreaming human rights

Where human rights is not the explicit objective of international activity, there may still be an impact on human rights. The need to mainstream a human rights analysis throughout all international policy and practice mirrors the recommendations in this plan for mainstreaming human rights in domestic legislation, policy and practice. It is important that all foreign policy and practice reflects the human rights values accepted by New Zealand society. Significant progress has already been made in some areas, notably development assistance. However, there is further progress to be made. The next challenge may be to ensure an integrated and coherent approach to mainstreaming human rights in international activity, not only across all agencies of government, but also through the involvement of the private sector and NGOs in this work.

Suggested priority:

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• Carry out further work to ”map” and then promote discussion about New Zealand’s human rights obligations in the areas of foreign policy, trade and development.

Human rights in our region

New Zealand has special interests and obligations in the Asia-Pacific region and in the Pacific Islands in particular. Promotion and better protection of human rights in the Pacific region will not only promote justice and democracy for the people living there, but will also serve New Zealand ’s domestic and international interests. One regional issue of particular human rights concern is the impact of environmental change on the populations of small Pacific Islands .

Priorities for action:

• Support the protection and promotion of human rights in New Zealands neighbouring Pacific region both nationally and regionally, including advice and assistance in relation to human rights and other institutions, support and cooperation with civil society
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• Support further research into the human rights elements of the specific concerns posed by impending environmental changes in the Pacific region.