Contents

SECTION THREE - Economic, social and cultural rights

SECTION FOUR - Rights of specific groups


NZ Human Rights Commission - Accessible HTML Document

Summary of Human Rights in New Zealand 2010 - Summary

Ngā Tika Tangata o Aotearoa  2010 -  Whakarāpopototanga

Foreword
Mihi

Ko Ranginui, ko Papatūānuku te marae tangata o te ao.

Ki ngā maunga iringa körero, ki ngā awa rerenga roimata, ngā reo, ngā mana, ngā waka o te motu, tēnā koutou katoa.

Tai pari, tai timu, taihoa e haere. I te hokinga atu o te ngaru, ka kite āhau kua ngaro koutou. Haere rā koutou te hunga wairua, haere oti atu ki tua o te ārai, ki te huinga o te kahurangi, ki te wheiao, ki te ao mārama. Haere, haere, haere.

Ki a koutou rā te hunga ora, ngā rangatira, ngā mātua, ngā tamariki, e pupuri nei i ngā taura here ō ngā whakapapa, tū te ao, tū te pō. Whiria te muka tangata i takea mai i Hawaiki Nui. Tū tangata tonu tātou i ngā wā katoa.

He pānui tuku tënei, i kōkiritia, i rangahaua, i tuhia hei taunga mo te wä. Maha noa ngā kaupapa. E marino ana te takoto o ētahi, tutü ana te puehu ki ētahi engari mau tonu ana te rongo ki te nuinga o te iwi whānui. Ehara taku toa i te toa takitahi, he toa takitini. He mihi ki ngā kaiwhakarite o tēnei pānui, na koutou ka rangatira tātou.


Nä reira puritia te mana i Waitangi, i tohua nei e ngä rangatira hei punga herenga waka mo Aotearoa. Whāia kia mau, kia tīna, tihei mauriora.

He kōrero whakamutunga.

“Kotahi anō te kōhao o te ngira e kuhu ai te miro mā, te miro pango, me te miro whero.”

Pōtatau Te Wherowhero, Te Kïngi Tuatahi

Tēnā koutou katoa,

Te Amokapua
Te Kaihautü o te Kāhui Tika Tangata


Section one: Wāhanga tuatahi
General - Tirohanga wh
ānui


Introduction
K
ōrero whakataki

Human Rights in New Zealand 2010 maps how well human rights are promoted, protected and implemented in New Zealand.

This is the second comprehensive report undertaken by the Human Rights Commission to assess how well New Zealand meets international human rights standards and where we fall short. It highlights improvements since the first assessment in 2004 and identifies where there has been some deterioration. It pinpoints areas of fragility, persistent and entrenched inequalities and gaps in human rights protections.

What is clear, as it was in 2004, is that human rights matter. Their realisation is vital to our expectations about life, education, health, work, our personal security, equal opportunity and fair treatment, and to our system of government. They affect the lives of everyone in New Zealand. Respect for each other’s human rights is a prerequisite for harmonious relations among the diverse groups that make up contemporary New Zealand. Human rights are equally vital to peace, security and sustainable development worldwide.

In 2004 the Commission found that there was much to celebrate about New Zealand’s human rights record; that New Zealand had the key elements essential for the protection, promotion and fulfilment of human rights; and that most people experienced the fundamental rights and freedoms in their daily lives and had the opportunity to participate in all aspects of society.

The most pressing human rights issues identified in 2004 were the poverty and abuse experienced by a significant number of children and young people; the pervasive barriers that prevented disabled people from fully participating in society; the vulnerability to abuse of those in detention and institutional care; the entrenched economic and social inequalities that continued to divide Māori and Pacific people from other New Zealanders; and the challenge of the Treaty of Waitangi now and in the future.

Human Rights in New Zealand 2010 confirms that New Zealand continues to meet and often surpasses human rights standards in many respects. It highlights steady improvements since 2004, but also reveals the fragility of some of the gains and areas where there has been deterioration. It makes clear that there is no room for complacency and that New Zealand continues to face serious human rights challenges. They are challenges that can be met where there is political will and strong civil society commitment and engagement.

Priority areas for action

The Commission has selected thirty priority areas - from over a hundred identified by the research and public consultation process undertaken in preparing Human Rights in New Zealand 2010. In these thirty areas further action is essential over the next five years to strengthen human rights protections and better ensure the dignity, equality and security of everyone in New Zealand.

The thirty priority areas focus on strengthening New Zealand’s constitutional and legal framework; tackling entrenched inequalities and systemic structural discrimination; and more explicitly and effectively implementing civil and political and economic, social and cultural rights. The thirty priority areas highlight what needs to be done to better protect groups of people who are particularly vulnerable to human rights abuses, or are subject to structural discrimination.

In selecting the priorities for action the Commission recognised that while the State is primarily responsible for ensuring that human rights are promoted, protected and fulfilled, it does not have the sole responsibility. Responsibility to respect human rights extends beyond central government - to regional and local government, to the business and community sectors, to voluntary groups and organisations. The report highlights the critical role individuals, community groups and other civil society organisations play in creating an environment of respect for human rights and harmonious race relations.

Across Human Rights in New Zealand 2010 a number of themes have emerged.

International human rights standards

The international human rights framework has a welcome and growing visibility in government and among some sectors of New Zealand society. During the period under review there have been three new international human rights instruments of direct interest to New Zealand: the Optional Protocol to the Convention against Torture; the Convention on the Rights of Persons with Disabilities; and the Declaration on the Rights of Indigenous Peoples. The Commission’s report shows that the ratification by New Zealand of the first two has already had an effect on the wellbeing of disabled people and of those held in detention. Ratification has served to raise expectations among different communities about their implementation.

Human Rights in New Zealand 2010 also reveals increasing references to human rights and specific Covenants and Conventions in New Zealand law. But for the most part these continue to be ad hoc and there is still no comprehensive incorporation of ratified treaties in New Zealand’s domestic law.

The Treaty of Waitangi

The question of the place of the Treaty of Waitangi in New Zealand’s constitutional arrangements remains unresolved. The Government issued in May 2010 a statement of support for the Declaration on the Rights of Indigenous Peoples, a document that offers an international perspective that could assist a national conversation on the contemporary and future significance of the Treaty of Waitangi.

Participation

Participation emerges as a critical issue for a robust democracy and harmonious race relations. Lack of participation and representation that reflects fairly the diversity of New Zealand society, are barriers to the development of sustainable social and economic policy. They also contribute to alienation, marginalisation and ultimately conflict.

Poverty, entrenched inequalities and structural discrimination

Poverty, entrenched inequalities and structural discrimination continue to severely limit the ability of significant numbers of young people to develop and achieve to their full potential, particularly those of Māori, Pacific heritage and people who are disabled. The Commission’s report identifies incremental, but insufficient, progress. It notes that in some cases progress has halted or even reversed as a consequence of the global economic recession.

Violence

Violence, bullying and harassment are violations of the most fundamental of human rights – security of the person. Their persistence constitutes one of the most difficult and intractable human rights challenges we face in New Zealand.

Data

While Human Rights in New Zealand 2010 has been able to draw on a range of statistics and data to provide empirical evidence to complement the legal and policy analyses, data is severely limited in relation to disabled people and for sexual and gender minorities.

What Human Rights in New Zealand 2010 covers

The Commission assesses how well human rights are recognised, respected and fulfilled against the civil and political, economic, social and cultural rights proclaimed in the Universal Declaration of Human Rights and as enacted as international law in United Nations Covenants and Conventions and in the International Labour Organisation’s fundamental labour standards.

This report updates Human Rights in New Zealand Today, Nga Tika Tangata O Te Motu, published in September 2004. It assesses progress against the priorities set out in the New Zealand Action Plan for Human Rights 2005-2010. It draws on significant work undertaken by the Human Rights Commission since 2005 and its coverage extends beyond that of its 2004 predecessor.

To enhance access the Commission has prepared this summary of Human Rights in New Zealand 2010, providing a succinct account of each chapter and the areas requiring further action, as identified through the research and consultation processes. The full publication can be referred to at www.hrc.co.nz or by contacting the Commission at [email protected]

Like the full publication the summary begins with a general section, Tirohanga Whānui, introducing New Zealand’s human rights framework, which includes international human rights law and the Treaty of Waitangi. The chapter on human rights and the Treaty of Waitangi is new. Section one also covers race relations, demonstrating the centrality of respect for human rights to harmonious relations.

Section two covers civil and political rights, Tikanga Tangata me te Tikanga Tōrangapū. The emphasis is on participation in central and local government as a right and a responsibility; on access to justice and on tackling the drivers of crime; and on practical steps to ensure freedom of religion and belief in the workplace and other domains. The chapter on freedom of opinion and expression introduces a new focus on human rights and the Internet.

Economic, social and cultural rights, Tikanga Ōhanga, Pāpori me te Ahurea, are assessed in Section three. As well as updating the 2004 assessment of the rights to health, education, work and housing, Section three contains a new chapter on the right to social security, a key element of the right to an adequate standard of living.

Section four focuses on seven specific groups of people, Tikanga Uepū, who are particularly vulnerable to human rights abuses and the effects of structural discrimination. The separate chapters on Women and Sexual and Gender Minorities are new to the 2010 review.

Each chapter summary introduces the specific right or topic, summarises the international law and context, canvasses the New Zealand legal and policy context, and then assesses the situation in New Zealand against the relevant standards. Each concludes with key areas for action to progress the rights under consideration, which have been identified following consultation with stakeholders and members of the public.

Promoting and protecting human rights today

In New Zealand human rights have never been protected by a single constitutional document or superior legislation. Instead, as this report graphically illustrates, a raft of disparate laws, policies and programmes provides elements of protection. Similarly no single institution of the state or government agency has sole or even primary responsibility for the promotion and protection of human rights.

Further, even where there are supportive laws and policies, the extent to which people enjoy their human rights in their everyday lives depends on the extent to which those they come in contact with, whether family members, whānau, neighbours, friends, work colleagues, service providers or government officials, reflect basic human rights principles and values in their behaviour and practices.

Human Rights in New Zealand 2010 provides the evidential foundation and the catalyst for the further work that must be done by Parliament, by government, by the business and community sectors and by the Human Rights Commission to develop detailed plans of action and programmes of work to strengthen laws, policies and practices in the critical areas it has identified.

Rosslyn Noonan
Chief Commissioner
Te Amokapua

Thirty priority areas for action on human rights in New Zealand

Chapter/section

Heading

Priority area

SECTION ONE – GENERAL

1

International human rights framework

Parliament

Strengthening Parliament’s human rights responsibilities by establishing a Human Rights Select Committee and tabling human rights reports in Parliament.

2

Civil society

Establishing a fund to support civil society participation in international human rights mechanisms.

3

Equality and freedom from discrimination

Substantive equality

Incorporating a specific reference to equality in the Bill of Rights Act and the Human Rights Act.

4

Human rights and the Treaty of Waitangi

Pathways to partnership

Developing and implementing new pathways to partnership between Tangata Whenua and the Crown.

5

Declaration on the Rights of Indigenous Peoples

Promoting awareness of the United Nations Declaration on the Rights of Indigenous Peoples in New Zealand.

6

Human rights and race relations

Structural discrimination

Investigating the extent to which structural discrimination underlies entrenched racial inequalities and developing programmes to address it.

7

Languages

Developing and implementing a national languages policy.

SECTION TWO – CIVIL AND POLITICAL RIGHTS

8

Democratic rights

Representation

Increasing the representation of Māori, Pacific and other ethnic groups in local government.

9

Right to justice

Evidence from vulnerable people

Developing more appropriate methods for taking and recording of evidence from vulnerable victims and witnesses in criminal proceedings.

10

Life, liberty and security of person

Programme of action

Implementing in partnership with civil society a comprehensive strategy and programme of action to address the drivers of crime.

11

Freedom of opinion and expression

Section 61, Human Rights Act 1993

Reviewing section 61 of the Human Rights Act to ensure it fulfils its legislative purpose.

12

Human rights and the Internet

Promoting debate about access to the Internet as a human right and a Charter of Internet Rights.

13

Freedom of religion and belief

Guidelines

Developing guidelines for respecting diversity of religion and belief in specific contexts.

SECTION THREE – ECONOMIC, SOCIAL AND CULTURAL RIGHTS

14

Right to health

Capacity

Amending the Mental Health (Compulsory Assessment and Treatment) Act 1992

to better reflect the concept of capacity in line with international standards.

15

Right to education

Human rights values

Implementing the human rights values explicit in the New Zealand Curriculum, Te Marautanga o Aotearoa and Te Whāriki, ensuring that early childhood services and schools respect diversity, are free from violence and enable full participation by children and young people.

16

Right to work

Equal Employment Opportunities framework

Implementing a new framework for equal employment opportunities that addresses access to decent work for disadvantaged groups such as Māori, Pacific youth, and disabled people.

17

Right to housing

Homelessness

Developing and implementing regional and national strategies to reduce homelessness.

18

Social housing provision

Increasing the supply and diversity of social housing.

19

Right to social security

Poverty Reduction

Reducing child poverty through a coordinated and integrated approach, with specific attention to Māori, Pacific and disabled children.

20

Adequacy of core benefits

Reviewing and addressing the adequacy of core benefit rates.

SECTION FOUR – RIGHTS OF SPECIFIC GROUPS

21

Rights of children and young people

United Nations Convention on the Rights of the Child obligations

Ensuring that legislation reflects New Zealand’s obligations under the United Nations Convention on the Rights of the Child, including recognising the interests of the child, the age of criminal responsibility, protection under the Children, Young Persons, and Their Families Act, age discrimination protections and adoption procedures.

22

Participation

Increasing avenues for children to participate and have their views heard.

23

Rights of disabled Persons

Measuring outcomes

Developing a full range of social statistics to ensure key outcomes for disabled people are measured.

24

Implementing the Convention on the Rights of Persons with Disabilities

Ensuring an integrated and coordinated Government response to implementing the Convention on the Rights of Persons with Disabilities with the full participation of disabled people.

25

Rights of women

Pay and employment equity

Timetabling pay and employment equity implementation with a minimum target of halving the gender pay gap by 2014 and eliminating it by 2020.

26

Sexual and family violence

Reducing sexual and family violence through target setting and fully resourcing a national programme of action.

27

Rights of sexual and gender minorities

Legal equality

Completing the legislative steps required for formal legal equality, including rights to found and form a family, regardless of sexual orientation or gender identity.

28

Rights of migrants

Employment

Addressing barriers to the employment of migrants, and ensuring the rights of temporary, seasonal and rural workers and those on work-to-residence visas are respected.

29

Rights of refugees

Comprehensive strategy

Completing a comprehensive whole of government resettlement strategy for convention refugees, quota refugees and family reunification.

30

Rights of people who are detained

Māori imprisonment

Committing to specific targets and timelines for reducing the disproportionate number of Māori in prison.


Rosslyn Noonan - Chief Commissioner Te Amokapua

Joris de Bres - Race Relations Commissioner  Kaihautū Whakawhanaunga ā Iwi

Judy McGregor - EEO Commissioner Kaihautū Ōriteanga Mahi

Karen Johansen - Commissioner Kaihautū

Joy Liddicoat - Commissioner Kaihautū

Jeremy Pope - Commissioner  Kaihautū

Richard Tankersley -  Commissioner Kaihautū


International human rights framework

Pou Tārawhao tika tangata o te Ao


"We recognise the inherent dignity and the euqal and inalienable rights of all members of the human family."

Universal Declaration of Human Rights, Preamble


Priority areas for action - Ngā mahi tuatahi

Parliament

Strengthening Parliament's human rights responsibilities by establishing a Human Rights Select Committee and tabling human rights reports in Parliament. 

Civil society Establishing a fund to support civil society participation in international human rights mechanisms.

Introduction - Tīmatatanga

Human rights (as presently conceived) have their origin in the Universal Declaration of Human Rights (the Declaration). The Declaration marks the beginning of the transformation of human rights from moral or philosophical imperatives into rights that are legally recognised internationally and, increasingly, across nations. It has been described as a statement of principles which provides “a common standard of achievement for all peoples and all nations”.

The Declaration clarifies that individuals also have responsibilities - Article 29, for example, states “everyone has duties to the community in which the free and full development of his personality is possible.” This translates into the duty of individuals to:

To give the standards in the Declaration legal force, two major covenants were developed – the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). In addition to the two major treaties, there are a series of instruments that apply to thematic issues, such as racial discrimination or discrimination against women.

There are also a large number of United Nations resolutions or declarations that are not binding in the same way as treaties but establish standards of practice and can acquire significant status as a result of their moral force and specific application. The most recent of these is the Declaration on the Rights of Indigenous Peoples (UNDRIP).

Current status - Āhua o nāianei

New Zealand has actively supported the development of international human rights law through the United Nations. It played a significant role in the deliberations on the Declaration in 1948 and, most recently, chaired the Working Party on the Convention on the Rights of Persons with Disabilities.

New Zealand government ministers are increasingly participating in human rights treaty body processes when New Zealand’s compliance is under examination. The Commission has become more involved in the treaty reporting process, monitoring the outcomes and integrating them into its work.

Internationally, the period is notable for the growing recognition of the value of involving civil society and national human rights mechanisms in the reporting process.

There is also greater recognition of corporate responsibility and the human rights impact, both positive and negative, that multinationals can have; as well as some significant shifts in how national sovereignty is viewed. It is no longer conceived of as entirely unfettered – a State’s treatment of its citizens has become the subject of legitimate inquiry, and potentially a justifiable basis for intervention by the international community.

Despite these advances, however, the relationship between international human rights standards and what happens in practice at the national level is still not widely understood in New Zealand.

New Zealand has a good record of ratification of and compliance with its international obligations. It has demonstrated some commitment to considering further constitutional protection of human rights. There has also been strengthened engagement in the treaty body reporting process and growing input from civil society. However, New Zealand’s human rights obligations are not reflected in a single entrenched constitutional instrument but simply remain part of the ordinary statutory scheme and the common law. Parliament is able to disregard them and they are therefore much less secure than they should be.

Areas for action - Mahi

Constitutional arrangements

Identifying opportunities to give greater effect in New Zealand’s constitutional arrangements to the Treaty of Waitangi and human rights protections generally.

Parliament

Strengthening Parliament’s human rights responsibilities by the establishment of a human rights select committee and by tabling in Parliament New Zealand’s reports on implementation of human rights Covenants and Conventions and subsequent treaty body recommendations as well as those of the Human Rights Commission.

Domestic legislation

Fully incorporating ratified international human rights standards in domestic legislation, policy development and in public sector professional development and training.

Civil society

Ensuring wider and more active civil society participation in international human rights mechanisms by advocating for a range of mechanisms, including establishment of a fund to support civil society to more effectively engage with the international treaty processes.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Constitutional arrangements

The strongest commitment a State can make to protect the human rights of its citizens is to embed them in a constitution, and create a statutory regime to enforce the international standards.

New Zealand’s human rights obligations are not gathered in a single entrenched constitutional instrument. They are provided for, instead, in a range of different pieces of legislation and through the common law.

Although the New Zealand Bill of Rights Act 1990 (BoRA) affirms New Zealand’s commitment to the International Covenant on Civil and Political Rights, it is not supreme law. Despite arguments that it has attained a “constitutional status”, because of the nature of the rights that it protects, the Bill of Rights Act can still be overridden by Parliament. This means that New Zealand’s human rights obligations are not as well protected as they should be.

In order to identify opportunities to give greater protection to the human rights provided for in the Treaty of Waitangi and under New Zealand’s international human rights obligations, constitutional arrangements in New Zealand should be kept under review.

Parliament

Parliament plays an essential role in the protection of human rights, all the more significant in the absence of constitutional or legally entrenched human rights provisions. The New Zealand Parliament’s human rights responsibilities could be strengthened by establishing a Human Rights Select Committee and by tabling in Parliament New Zealand’s reports on implementation of human rights Covenants and Conventions and subsequent treaty body recommendations as well as reports produced by the Human Rights Commission.

Domestic legislation

New Zealand has ratified most of the major treaties with few reservations. However, not all of the international human rights standards provided for in those treaties have been incorporated into domestic legislation.

A State’s commitment to its international human rights obligations is also reflected in how it develops policy. The relationship between the international obligations and the development of economic and social policy tends to be poorly understood.

Civil society

Civil society organisations play a critical role as watchdogs of human rights. The UN has made strong statements about the importance of civil society. Campaigns by civil society organisations (for example, the initiatives which led to the banning of land mines) have played a large part in the evolution and development of international human rights law in recent decades.

In New Zealand, civil society organisations contribute to, and monitor compliance with, international conventions by participating in the preparation of New Zealand’s periodic reports to the UN committees. Civil society organisations may also provide independent commentaries on the country reports and monitor the implementation of the UN committees’ conclusions. The impact of international human rights in New Zealand is directly related to the vitality of active citizens and their commitment to strengthening respect for human rights.

Greater civil society participation in international human rights mechanisms could be promoted through a range of mechanisms, including the establishment of a fund to support civil society to engage with the international treaty processes.

Equality and freedom from discrimination
Te ōritenga me te whakawāteatanga

"All human beings are born free and equal in dignity and rights."

Universal Declaration of Human Rights, Article 1

Priority area for action - Mahi tuatahi

Substantive equality

Incorporating a specific reference to equality in the Bill of Rights Act and the Human Rights Act.

Introduction - Tīmatatanga

The principles of non-discrimination and equality are fundamental to human rights law. The United Nations Human Rights Committee defines discrimination as:

any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

Discrimination can be direct or indirect.

Direct discrimination occurs when an individual is treated less favourably than someone else in a similar situation for a reason related to a prohibited ground.

Indirect discrimination describes the situation where an apparently neutral practice or condition has a disproportionate, negative impact on one of the groups against whom it is unlawful to discriminate and the practice or condition cannot be justified objectively[1].

Although closely related, equality and the right to freedom from discrimination are not the same.

Discrimination and equality are terms that are often used to describe the opposite conclusions that may be reached in analysing government action. Distinctions thought wrongful are said to be discriminatory, while those considered appropriate are said to respect equality. This has led some to suppose that freedom from discrimination and equality are the same thing. But a world without discrimination is not necessarily a world of equality.[2]

Current status - Āhua o nāianei

New Zealand generally meets the international standards for protection of the right to freedom from discrimination through the Human Rights Act 1993 (HRA) and the New Zealand Bill of Rights Act 1990 (BoRA). The prohibited grounds of discrimination are reasonably comprehensive by international standards and discriminatory legislation can be challenged by obtaining a declaration of inconsistency from the Human Rights Review Tribunal.

There have been some significant developments in the area of discrimination law including a number of cases, which have clarified the interpretation of aspects of the Human Rights Act. However the body of jurisprudence is still not great. The Commission has therefore adopted a more proactive approach to this area of work since 2004. It has developed a litigation strategy and identifies cases where it can intervene or initiate proceedings to contribute to a more substantial body of local jurisprudence to better inform understanding of human rights.

Despite this, discrimination persists and inequalities remain. International treaty bodies have repeatedly expressed concern about inequalities in New Zealand. For example, the most recent report of the Committee on Economic Social and Cultural Rights commented on the persistent inequalities between Māori and non-Māori in educational participation as well as the gap in employment conditions between men and women particularly in the area of pay equity.

Areas for action - Mahi

Substantive equality

Incorporating a specific reference to equality in the Bill of Rights Act and the Human Rights Act to promote substantive equality.

Strengthening legal protection

Extending the Human Rights Review Tribunal and courts’ power to make a declaration of inconsistency under the Human Rights Act to other rights and freedoms in the Bill of Rights Act, to strengthen the legal protection of human rights in New Zealand.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Substantive equality

The clearest statement on equality in New Zealand is found in Article 3 of the Treaty of Waitangi, in which the Crown extended to Māori the Queen’s protection and imparted to them all the rights and privileges of British subjects. Apart from this, there is no specific reference in New Zealand law to equality, a fact that the United Nations Committee on Human Rights has consistently criticised in assessing New Zealand’s compliance with international standards on equality and freedom from discrimination.

The Bill of Rights Act does not address directly equality and only affirms it indirectly by referring to the International Covenant on Civil and Political Rights (ICCPR) in the long title. In 2009, the Commission recommended to the Minister of Justice that an explicit reference to equality in the Human Rights Act and the Bill of Rights Act was now necessary to ensure equal outcomes, not just equal treatment.

Strengthening legal protection

The Bill of Rights Act affirms New Zealand’s commitment to the International Covenant on Civil and Political Rights. However, it is not supreme law. Despite arguments that it has attained a “constitutional status”, because of the nature of the rights that it protects, the Bill of Rights Act can still be overridden by Parliament.

The Human Rights Act makes it unlawful to discriminate on the grounds of sex (including pregnancy and childbirth), marital status, religious belief, ethical belief, colour, race, ethnic or national origin (including nationality or citizenship), disability, age, political opinion, employment status, family status and sexual orientation. Since 2002, the Human Rights Review Tribunal has had the ability to issue a declaration of inconsistency in relation to legislation that is incompatible with the right to freedom from discrimination in section 19 of the Bill of Rights Act pursuant to the Human Rights Act. This power does not currently extend to other rights in the Bill of Rights Act.

Legal protection of human rights in New Zealand would be strengthened by extending the Human Rights Review Tribunal and courts’ power to make a declaration of inconsistency pursuant to the Human Rights Act to the other rights and freedoms in the Bill of Rights Act.

[1] Committee on Economic, Social and cultural Rights (2009), General comment 20: Non-discrimination in economic, social and culture rights (42nd session:E/C.12/AC/20)para.8.

[2] United Nations Human Rights Committee (1989), General comment 18: Non-discrimination: Compilation of General Comments and General Recommendations adopted by human rights treaty bodies (UN DOC.HRGEN/1/Rev.1), para.368

Human rights and the Treaty of Waitangi
Te mana i Waitangi

"Treaties, and the relationship they represent, are the basis for a strengthened partnership between Indigenous peoples and the State."

UN Declaration on the Rights of Indigenous Peoples, Preamble

Priority areas for action - Ngā mahi tuatahi

Pathways to partnership

Developing and implementing new pathways to partnership between Tangata Whenua and the Crown.

Declaration on the Rights of Indigenous Peoples

Promoting awareness of the United Nations Declaration on the Rights of Indigenous Peoples in New Zealand.


Introduction - Tīmatatanga

The Treaty of Waitangi is the founding document of New Zealand. It was signed between representatives of the British Crown and several Rangatira (Māori chiefs) on 6 February 1840, and enabled subsequent migration to New Zealand and the establishment of government by the Crown. The purpose of the Treaty was to protect Māori rights and property, keep peace and order, and establish government. New Zealand’s history since the signing of the Treaty has been marked by repeated failures to honour these founding promises.

The Treaty is also important as a “living document”, central to New Zealand’s present and future, as well as its past. It establishes a relationship “akin to partnership” between the Crown and Rangatira, and confers a set of rights and obligations on each Treaty partner.

The Treaty of Waitangi is New Zealand’s own unique statement of human rights. It includes both universal human rights and indigenous rights. It belongs to, and is a source of rights for, all New Zealanders. The Treaty also affirms particular rights and responsibilities for Māori as Māori to protect and preserve their lands, forests, waters and other treasures for future generations.

The Universal Declaration of Human Rights (UDHR) sets out rights to which all human beings are entitled. Human rights can only exist in a collective environment in which those rights are acknowledged and duties recognised. Recent work on the rights of Indigenous peoples has improved understanding of the relationship between individual and collective rights.

The Treaty (1840) and the UDHR (1948) complement each other: both govern relationships between peoples in New Zealand, and between peoples and the Crown. Both underpin New Zealand’s constitutional framework. In doing so, they set out a foundation for good government that respects the rights of all New Zealanders.

Current status - Āhua o nāianei

The status of human rights and the Treaty in New Zealand today is mixed. There are legislative mechanisms in place to protect the principles of the Treaty and the rights of Māori as Indigenous people. In practice, the level of recognition and protection varies. There has been significant progress in hearing and settling Treaty claims, the revitalisation of Māori language, and establishing whānau-centred initiatives, particularly in health and education.

Systemic disadvantage remains to be fully addressed, however, and the process of providing redress for historical grievances is yet to be completed. Significant challenges remain in Māori land development, enabling Māori participation in decision-making at the local level, and in improving social and economic outcomes for Māori in health, education, employment, standard of living and imprisonment.

With the Māori population projected to grow to 810,000, or 16.2 per cent of the population, by 2026, it is vital that representative structures and public services are optimised.[1] This is to ensure the endurance of the Treaty partnership and better economic, social and cultural outcomes for Māori and non-Māori New Zealanders.

Areas for action - Mahi

Public awareness

Increasing public understanding of the Treaty and the human rights of Indigenous peoples – including the meaning of rangatiratanga today – and building relationships between Māori and non-Māori New Zealanders at the community level.

Constitutional arrangements

Reviewing laws that make up our constitutional framework, to ensure that the Treaty, indigenous rights and human rights are fully protected.

Treaty settlements

Concluding the settlement of historical breaches of the Treaty promptly and fairly.

Pathways to partnership

Building on existing processes and developing new fora for Tangata Whenua and the Crown to engage at local and national levels, and developing and implementing new pathways to partnership between Tangata Whenua and the Crown.

United Nations Declaration on the Rights of Indigenous Peoples

Promoting awareness of the Declaration on the Rights of Indigenous Peoples in New Zealand, particularly in fora charged with the responsibility for the management and/or the administration of natural resources.

Children and their families

Ensuring all children and young people enjoy improved economic, social and cultural outcomes that more fully realise the rights set out in the Treaty of Waitangi and international human rights treaties, including the Declaration on the Rights of Indigenous Peoples.

Background to areas for action

Public awareness

Between 2006 and 2009, annual surveys by UMR research found only 34 – 42 per cent of respondents said they had high-level knowledge of the Treaty. Declared high-level knowledge of the Treaty tends to be slightly higher among Māori respondents, although the small sample size of Māori respondents means these results are indicative only. The majority of respondents did not believe they have high knowledge of the Treaty, the nation’s founding document.

Constitutional arrangements

Since the 1970s, there has been a persistent call for constitutional change to give greater effect to the Treaty of Waitangi. Submissions to the Constitutional Arrangements Committee, a select committee established in 2004 to inquire into New Zealand’s existing constitutional arrangements, echoed this call. While the committee found that any significant constitutional change should be made with great care and be subject to public debate, it noted that “the relationship between the constitution and the Treaty of Waitangi” was an issue of continuing significance. The Foreshore and Seabed Act controversy reflected the lack of constitutional recognition of the inherent rights of Māori.

Treaty settlements

By 2009, the Waitangi Tribunal had registered more than 2120 claims by Māori against the Crown. Since 2007, the pace of Treaty settlements has accelerated in response to ambitious settlement targets of 2020 and now 2014. This has the potential to further strengthen the Māori economy and empower Māori organisations as long as the focus on promptness does not override fairness.

Pathways to partnership

The Declaration on the Rights of Indigenous Peoples calls for the State to consult and cooperate in good faith with Indigenous people, through their own representative institutions, in order to obtain their free, prior and informed consent before implementing measures that affect them (Article 19). Although there are positive examples of the Crown and Tangata Whenua working together to advance common aspirations, there are currently no formal mechanisms to provide for this, nor are there recognised representative pan-Māori institutions at the national level with which the State might engage for such purposes.

United Nations Declaration on the Rights of Indigenous Peoples

Internationally, the most significant event regarding human rights and the Treaty since 2004 was the adoption of the Declaration on the Rights of Indigenous Peoples by the United Nations in 2007. The Declaration provides a clear set of standards that apply existing human rights treaties to the specific situation of Indigenous peoples. It affirms treaties between State and Indigenous peoples, such as the Treaty of Waitangi, and reiterates the full range of civil, political, economic, social and cultural rights. In doing so, it provides guidance to New Zealand on ways in which the Treaty partnership can be interpreted in the 21st century.

Children and their families

Socio-economic inequalities for Māori and incomplete redress for past breaches of the Treaty mean today’s Māori children do not equally share in the realisation of their human rights. This is especially significant given Māori population projections. A Treaty and human rights-based path forward for New Zealand means considering the impact the situation today will have on future generations of New Zealanders.


[1] Statistics New Zealand (2010), National Ethnic Population Projections: 2006 (base) – 2026 update. Accessed 5 May 2010 from http://www.stats.govt.nz/browse_for_stats/population/estimates_and_projections/nationalethnicpopulationprojections_hotp2006-26.aspx


Human rights and race relations
Whakawhanaungatanga a iwi

"We will pursue a policy of eliminating racial discrimination in all its forms."

Convention on the Elimination of Racial Discrimination,
Preamble

Priority areas for action - Ngā mahi tuatahi

Structural discrimination

Investigating the extent to which structural discrimination underlies entrenched racial inequalities and developing programmes to address it.

Languages

Developing and implementing a national languages policy.


Introduction - Tīmatatanga

Harmonious race relations depend on the equal enjoyment of human rights by all, regardless of ethnic or national origins or skin colour. The New Zealand Statement on Race Relations identifies 10 factors that form a framework for harmonious race relations:

"Harmonious race relations" refers to the ways in which peoples who are ethnically diverse positively interact with one another. Such positive interaction is based on mutual respect for, and realisation of, each other’s rights, non-discrimination, and the recognition of and support for cultural diversity. Developing harmonious race relations also depends on eliminating racism. Racism uses biological differences – whether imagined or real – to assert the superiority of one group over another to justify aggression or privilege. Racism is any individual action, or institutional practice backed by institutional power, which subordinates or negatively affects people because of their ethnicity.

Current status - Āhua o nāianei

New Zealand generally complies with and exceeds international standards in terms of its legislation and policies on race relations. Public opinion polling has shown that New Zealanders are more positive about race relations now than they were in 2004, and public institutions, particularly Parliament, are now more ethnically diverse.

There have been many positive developments in race relations since the last review of human rights in New Zealand, in 2004, indicating increasing recognition and support for cultural diversity. Many of these developments will have long-term benefits in enhancing race relations. A central example of this is the New Zealand curriculum introduced in 2008, which contains the core principles of the Treaty of Waitangi, cultural diversity and inclusion. Curriculum requirements to learn a language will help bring about the development of language policy and resourcing.

Other examples of positive developments include an increasingly diverse media, the work of the Office of Ethnic Affairs to ensure the Government is responsive to New Zealand’s diverse population and efforts by the New Zealand Police to improve engagement with ethnic communities.

Since 2004, the Commission – in partnership with other organisations – has established a framework for addressing race relations issues. This includes: the Diversity Action Programme; an annual diversity forum; a system for acknowledging positive contributions to race relations; observance of Race Relations Day; partnerships to promote Māori and Samoan Language weeks; publications of national policy statements on language diversity, religious diversity and race relations; and an annual race relations report.

Challenges remain, however. These include promoting public understanding of diversity, combating discrimination and harassment, meeting the needs of diverse communities and fostering harmonious relationships. Anti-discrimination provisions would be enhanced by adopting the Article 14 complaints procedure in the Convention on the Elimination of Racial Discrimination.

Assessments of New Zealand today in other sections of this report – including those on Human Rights and the Treaty of Waitangi, the Rights of Migrants, the Rights of Refugees, Freedom of Opinion and Expression, and Freedom of Religion and Belief – should be read in conjunction with this section.

Areas for action - Mahi

Asian New Zealanders and international students

Countering the relatively high level of prejudice, discrimination and harassment experienced by Asian New Zealanders and international students.

Structural discrimination

Investigating the extent to which structural discrimination underlies entrenched racial inequalities in the enjoyment of civil, political, social, economic and cultural rights and developing programmes to address it.

Diversity action

Encouraging organisations and communities to develop their own diversity action projects and programmes, especially inter-cultural activities.

Languages

Developing and implementing a national languages policy and dedicated strategies for Māori, Pacific and community languages and interpreting and translation services.

Diversity education

Ensuring that teachers are appropriately trained, supported and resourced to teach diversity in the new curriculum.

(Related priorities dealt with in other sections of this report are: to address outstanding issues in relation to the Treaty of Waitangi; to reduce social and economic inequalities between different ethnic groups; to better support the settlement and integration of migrants and refugees; to review section 61 of the Human Rights Act 1993 to ensure it fulfils its legislative purpose; and to promote understanding between people of different beliefs.)

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Asian New Zealanders and international students

Non-discrimination is a basic right for everyone living in New Zealand. Yet evidence from a variety of national and local surveys indicates that people from racial and ethnic minorities continue to experience a significant degree of discrimination and racism in their daily lives, ranging from verbal abuse and denial of opportunity to physical violence. Research in New Zealand suggests Asians are the ethnic group that experiences the most discrimination.

The rights of international students have also been identified as a significant human rights concern. Students in New Zealand have experienced racial harassment, abuse and violence.

Structural discrimination

Harmonious race relations are difficult to achieve when peoples from different ethnic groups are fundamentally unequal. There continue to be significant social and economic inequalities between different ethnic groups, despite a wide range of government policies and community actions that seek to address them. Such entrenched disparity between ethnic groups can be considered a form of structural discrimination.

There has been progress in recent years in reducing disparities in areas such as employment, life expectancy, income and educational achievement, but there is still a long way to go and gains may be fragile in the face of changing economic conditions. Investigating disparities to see where structural discrimination may exist is a useful tool for addressing the social and economic inequalities that underlie many human rights challenges in New Zealand today.

Diversity action

Non-discrimination and safety from racially motivated crime form part of what is required for harmonious race relations. The other equally important part is recognition and support for cultural diversity. This involves not only recognising and accepting racial and ethnic diversity, but actively supporting it.

The New Zealand Diversity Action Programme has grown from a small number of community organisations seeking to enhance their diversity capability and foster harmonious race relations to approximately 250 organisations with over 660 projects. Networks have been established for people interested in religious diversity, language policy, media and refugee issues, and policy statements on race relations, language and religious diversity have been developed through them.

Despite the success of this programme to date, ongoing socio-economic inequalities based on ethnicity indicate that greater government and community action is needed to more fully realise the rights that support cultural diversity.

Languages

A range of initiatives have been implemented to further the goal of establishing New Zealand as a bilingual nation by 2040, and supporting other languages in the community. In addition to new curriculum requirements to learn a second language, these include the development of new strategies, resources and media, the establishment and increasing profile of awareness-raising language weeks, and making New Zealand Sign Language an official language of New Zealand.

Resourcing remains a challenge, particularly in the provision of teachers with high degrees of fluency in te reo Māori. The timely provision of information – particularly relating to health and government – in a range of community languages is similarly challenging. English-only polices in the workplace have repeatedly been the cause of complaints to the Human Rights Commission.

Diversity education

A revised New Zealand Curriculum was introduced in 2008. It includes cultural diversity, inclusion and the Treaty of Waitangi as core principles. Throughout the curriculum, students are also to be encouraged to value: diversity, as found in our different cultures, languages and heritages; equity, through fairness and social justice; community and participation for the common good; and respect for themselves, others and human rights.

Following the introduction of the new curriculum, there is a need for professional development and support for teachers, as well as educational resources, to deliver these components.

[1] This summary of rights and responsibilities is drawn from the Human Rights Commission’s Statement on Race Relations. Accessible online at http://www.hrc.co.nz/home/hrc/racerelations/tengirathenzdiversityactionprogramme/statementonracerelations.php.


Section two: Wāhanga tuarua
Civil and political rights
Tikanga tangata me te tikanga t
ōrangapū


Democratic rights 
Tikanga manapori


"Everyone has the right to choose to take part in the government of their country."

Universal Declaration of Human Rights, Article 21

Priority area for action - Mahi tuatahi

Representation

Increasing the representation of Māori, Pacific and other ethnic groups in local government.

Introduction - Tīmatatanga

Democratic rights include the right to take part in electing the Government and the right to access and participate in the public service. There is also a corresponding duty of responsible citizenship, which involves a willingness to play a part in public affairs and to respect the rights and freedoms of others.

Under Article 25 of the International Covenant on Civil and Political Rights (ICCPR), all citizens have the right and opportunity to take part in the conduct of public affairs in their country, directly or through freely chosen representatives. They have the right “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” They also have access, on equal terms, to public service.

Both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) state that all peoples have the right to self-determination, including the right to freely determine their political status. The right to self-determination is also found in the United Nations Declaration on the Rights of Indigenous Peoples.

Democratic rights include a range of other rights and freedoms, such as the right to justice, the right to freedom of expression, the right to peaceful assembly and the right to freedom of association; as well as social and economic rights, such as the right to health, social security and education.

Democracy and the rule of law are interdependent and both are necessary to create an environment in which human rights can be realised. The right to influence public decision-making and decision-makers (popular control), and to be treated with equal respect and as of equal worth (political equality) in decision-making, are fundamental to a democracy.

Current status - Āhua o nāianei

New Zealand is a parliamentary democracy with universal suffrage and free and fair elections. Its structures and processes are seen as largely democratic and there is general consensus on the ideal of a common citizenship without discrimination. Government accountability is recognised as important and public participation in decision-making is well understood and appreciated. The declining rate of voter turnout in both parliamentary elections and local body elections seems to reflect a loss of confidence in the benefits of participation.

Mechanisms to ensure participation and accountability are not always effective and have at times been undermined by unduly limiting opportunities for making submissions to select committees or passing legislation under urgency. The Electoral Finance Act 2007 was introduced (and repealed), legislation to make Auckland into a “super city” was passed and the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 and the Canterbury Earthquake Recovery Response Act 2010 were enacted amid criticism that they undermined democratic participation and the rule of law. There is also a strong sense of dissatisfaction by many Māori on accountability by the Crown in relation to the Treaty of Waitangi.

While many institutions reflect increasing diversity, Māori, Pacific peoples, women, young people, disabled people and people of ethnic, cultural, religious and linguistic minorities are under-represented in elected office.

There have been some significant changes since 2004. These include acknowledgement of the need for a review of New Zealand’s constitutional arrangements, better understanding of the role that civil society can play in informing the development of policy, and amendments to the Local Government Act 2002 to increase the transparency and accountability of local government.

Areas for action - Mahi

Constitutional framework

Reviewing the laws that make up our constitutional framework to ensure the Treaty, indigenous rights and human rights are fully protected.

Legislative process

Enhancing the transparency and accountability of the legislative process by tabling reports on the consistency of legislation with the Bill of Rights Act on introduction and the third reading.

Representation

Increasing the representation of Māori, Pacific and other ethnic groups in local government.

Disenfranchisement of prisoners

Ensuring there is no further disenfranchisement of prisoners.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Constitutional framework

New Zealand does not have a single, stand-alone constitution. Rather, there are a number of laws, including the Constitution Act 1986, the Electoral Act 1993 and the New Zealand Bill of Rights Act 1990 (BoRA), which together with the Treaty of Waitangi, judicial decisions and constitutional conventions make up the constitutional framework.

The BoRA itself is not entrenched legislation. It follows that, in theory, it could be repealed by Parliament. This could lead to some intrusion of political factors into the appointment of members of the judiciary. There is also no formal power for the courts to strike down legislation that breaches New Zealand’s constitutional arrangements, although declarations of inconsistency are possible in some (limited) areas.

Over the past 20 years, there has been debate about whether or not New Zealand should have a written constitution to guarantee the rights of its citizens and what place the Treaty of Waitangi should have in such arrangements.

Legislative process

Measures to ensure policy-making is open, transparent and amenable to external scrutiny and review are crucial to accountability. Transparency and accountability are closely linked. Transparency can be defined as access by the public to timely and reliable information on decisions and performance in the public sector.

In relation to the development of legislation, the BoRA applies to legislation in a number of ways. All government policy proposals and bills introduced into Parliament are assessed for their consistency with the BoRA. Where legislation appears to be inconsistent with any of the rights and freedoms in the BoRA, a report must be tabled in Parliament by the Attorney-General. Although Parliament can still enact the legislation even if it is incompatible, the process does ensure that the public and the legislature are aware that it breaches the BoRA.

The reporting requirement has been described as “deficient” in certain respects. The fact that the legal information provided to the Attorney-General on which the advice is based can be withheld under the Official Information Act has been criticised as having implications for the transparency of the process. Although advice received by the Attorney-General relating to the BoRA consistency has been posted on the Ministry of Justice’s website since 2003, the process could be improved by tabling Bill of Rights reports on every bill introduced.

Representation

Participation is heavily influenced by who speaks for communities and who is represented on decision-making bodies. Only when those directly affected by policy and legislation have a genuine voice in deciding its formation can a governance structure be said to truly reflect the society it represents.

Māori seats have contributed to a more representative Parliament. The Mixed Member Proportional (MMP) electoral system has also resulted in a Parliament that better reflects the social and political composition of the electorate. There are now more Māori, Pacific and Asian MPs, a greater number of women and openly gay MPs. The diversity of ethnic groups represented in Parliament rose sharply with the introduction of MMP in 1996 and has increased steadily in subsequent general elections.

In local government, however, the percentage of Māori, Pacific and other ethnic groups is significantly lower. 

Disenfranchisement of prisoners

Certain groups are disqualified from voting under Section 80 of the Electoral Act. They include New Zealand citizens who are not (and have not been for the three years prior) in New Zealand at the time of the election, some detainees under the Mental Health (Compulsory Treatment and Assessment) Act 1992, certain categories of prisoners, and people on the Corrupt Practices List.

At the time of writing, legislation that would amend the Electoral Act to disqualify all convicted prisoners from voting – the Electoral (Disqualification of Convicted Prisoners) Amendment Bill – had passed its second reading in Parliament.

Right to justice
Tika ki te haepapa

"All are equal before the law."

Universal Declaration of Human Rights, Article 7

Priority area for action - Mahi tuatahi

Evidence from vulnerable people

Developing more appropriate methods for taking and recording of evidence from vulnerable victims and witnesses in criminal proceedings.


Introduction - Tīmatatanga

The right to justice is fundamental to international human rights law and is recognised under the Universal Declaration on Human Rights (UDHR) through the following Articles:

The rule of law is an essential foundation for a fully functioning democratic system and for full and effective protection of human rights. The rule of law is also fundamental to economic security, as it ensures that both the public and private sectors have a stable and reliable legal system for resolving commercial and other disputes. Furthermore, it establishes clear rules by which business can be conducted. Five core elements of the rule of law are:

  1. The law must be accessible, intelligible, clear and predictable.
  2. Fundamental human rights must be protected by the law.
  3. Civil disputes, which the parties themselves are unable to solve, should be resolved through established procedures without prohibitive cost and in a timely fashion.
  4. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
  5. Adjudicative procedures provided by the State should be fair. The overarching objective of the rule of law and the right to justice is that fair outcomes are realised by everyone encountering the judicial process.

Current status - Āhua o nāianei

New Zealand has traditionally enjoyed a high regard for the right to justice, which is fundamentally linked in the popular imagination to the notion of a “fair go” and to the belief that society should be based on the rule of law.

For the large part, New Zealand has clear laws which incorporate human rights standards (including the right to justice), supported by adequate systems to ensure human rights are taken into account.

While, generally speaking, New Zealand is committed to the rule of law and the right to justice, legislation does not encapsulate all the civil and political rights recognised in international law, nor are economic, cultural and social rights explicitly protected. As such, persons seeking to claim violations of economic, cultural, and social rights are precluded from doing so before the courts.

Overall, New Zealand demonstrates an active commitment to the rule of law and the right to justice through continual review, evaluation and ongoing legal development. The convention is that judges are appointed without political bias. Where potential bias exists in the judiciary, it is identified and there are systems for ensuing judgements are not tarnished by bias.

However, through the Universal Periodic Review process, New Zealand has come under international criticism for significant variations in the realisation of the right to justice among different New Zealanders, including disabled people, Māori and Pacific peoples, and children and young people.

Since 2004, there has been a rise in popular anxiety about crime. The Government has responded by implementing legislation and policy to simplify the justice system, ensure greater access to justice and protect the rights of victims and their families.

However, significant issues remain:

Areas for action - Mahi

Historic cases of abuse

Developing a comprehensive mechanism outside the court system to address historic cases of abuse whilst under the care of the State.

Evidence from vulnerable people

Developing more appropriate methods for the taking and recording of evidence from vulnerable victims and witnesses in criminal proceedings.

Judiciary

Increasing diversity in the judiciary.

Use of urgency

Reviewing the excessive use of urgency in the passage of legislation.

Background to areas for action - Tāhuhu kōrero ki ngā mahi

Historic cases of abuse

There are a significant number of claims before the courts relating to abuse and mistreatment suffered while under the care of the State. The courts have heard five cases to date, all of which have failed primarily because of technical legal defences such as a time-bar. The litigation process results in claimants being re-traumatised by telling their story a number of times and is ineffective in providing any resolution to these claims.

It has been suggested a number of times that the courts are not an appropriate forum for dealing with claims of historic abuse and that the Government should consider other ways of resolving them.

In its concluding observations in 2009, the United Nations Committee against Torture (UNCAT) stated:

“[New Zealand] should take appropriate measures to ensure that allegations of cruel, inhuman or degrading treatment in the ‘'historic’ cases are investigated promptly and impartially, perpetrators duly prosecuted, and the victims accorded redress, including adequate compensation and rehabilitation.” [1]

Evidence from vulnerable people

Ensuring all accused persons have a fair trial, and obtaining the most accurate and complete testimony from witnesses, are critical to the quality of justice delivered by the courts. Testifying can be a considerable ordeal for adults, let alone children.

Children in New Zealand continue to be subjected to suggestive questioning in the courtroom by defence lawyers, using complex language and employing dubious tactics, such as abrupt changes in topics and intense questioning on irrelevant details. These practices go against the best interests of the child, but worse still they risk undermining the integrity of the evidence being given. The Minister of Justice has stated that the handling of child witnesses is currently under review.

Following the Law Commission’s work on children and other vulnerable witnesses, legislative amendments were made. For example, the Evidence Act 2006 provides for interpreters by way of “communication assistance” for anyone with a communication disability. However, such procedures have yet to be fully implemented.

Judiciary

Since its inception, the New Zealand judiciary has been drawn from a remarkably homogenous group. Although the diversity of the judiciary has increased somewhat over recent years, the make-up of the judiciary as a whole is still not fully reflective of society.

The number of women in the judiciary, for example, is around 25 per cent. The Committee on the Elimination of Discrimination against Women has requested that the New Zealand Government outline a programme of concrete action, goals and time frames to increase the number of female judges. There also continues to be few Māori, Polynesian, Indian or other ethnic minorities appointed as judges, and even fewer judges with a disability.

Use of urgency

Participation is a foundation stone of democracy in a modern society. While voting is fundamental to participation, so too is the ability to contribute in a meaningful way to the development of legislation. From time to time governments have, and continue to, expedite legislative proposals through all the parliamentary processes under a perceived need for “urgency”.

The rapid passing of legislation limits the possibility for public participation by reducing the time available for the public to engage in the parliamentary process in order to make their views known. This has the potential to diminish public confidence in Parliament as a watchdog on the executive branch of government and as a forum for public opinion to be heard. This practice also undermines good democratic processes to the potential detriment of sound decision-making.

[1]UN Committee Against Torture (2009), Concluding Observations: Consideration of New Zealand’s fifth periodic report (42nd session: CAT/C/NZL?CO/5) para.11

Life, liberty and security of person
Te ora, mana herekore me te haumaru

"Everyone has the right to life, liberty and security."

Universal Declaration of Human Rights, Article 3

Priority area for action - Mahi tuatahi

Programme of action

Implementing in partnership with civil society a comprehensive strategy and programme of action to address the drivers of crime.

Introduction - Tīmatatanga

The right to life, liberty and security of person is made up of three distinct but strongly interconnected elements. This chapter focuses on the right to security of the person, but in order to do so, an understanding of the three elements is necessary.

The right to life is the supreme right of human beings.[1] It is basic to all human rights, and without it all other rights are without meaning. The term “life” has been interpreted widely by courts internationally, to include the right to livelihood, health, education, environment and dignity. The State has a duty to protect human life against unwarranted actions by public authorities as well as by private persons.

The right to liberty protects the physical liberty of the person through a cluster of interrelated rights, including:

The right to liberty may be invoked in respect of all deprivations of liberty, whether arising in relation to the application of criminal law, by reason of mental illness, vagrancy, drug addiction or immigration control. The chapter on the rights of people who are detained examines deprivation of liberty in more detail.

The right to security is closely associated with the right to liberty. The right to security includes national and individual security. National security is how the State protects the physical integrity of its citizens from external threats, such as invasion, terrorism, and biosecurity risks to human health. Individual security is how the State protects the physical integrity of its citizens from abuse by authorities and other citizens.

The right to security of the person protects physical integrity, which has traditionally taken the narrow focus of protection from direct physical trauma. However, emerging standards are beginning to include providing for: the necessities of life (such as sustenance or healthcare); the right to social security; and protection of health and safety, particularly in employment. These issues are addressed in other chapters and so are not included here.

Security of the person also raises issues about state or private surveillance of citizens. The Privacy Commissioner specifically deals with impingements on a citizen’s privacy. These issues will not be discussed in more detail here.

Current status - Āhua o nāianei

For the most part, New Zealand’s legislative framework and structures for protecting life, liberty and security of the person are robust and consistent with international human rights standards.

Where the State or its agencies impinge on a citizen’s right to life, liberty or security of person, a range of agencies are empowered to intervene or investigate. This includes the Office of the Ombudsmen, the Health and Disability Commissioner, the Human Rights Commission and the Independent Police Conduct Authority.

Successive governments have made a commitment to better protect, promote and fulfil the right to life, liberty and security. Since 2004, there have been a number of significant government initiatives, such as community based interventions, and an increased emphasis on the prevention of domestic violence, including a review of legislation and the development of a comprehensive campaign for action.

The introduction of the Policing Act 2008 has embedded human rights principles into police practices. Furthermore, the New Zealand Police have taken a number of positive steps to better protect the security of people in New Zealand, including an increased emphasis on community based policing. The 2009 police public satisfaction survey showed 72 per cent of people rated their trust and confidence in the police as “full” and “quite a lot”. This is an increase from 69 per cent the previous year.

However, a number of challenges remain:

Areas for action - Mahi

Comprehensive national strategy

Implementing in partnership with civil society a comprehensive strategy and programme of action to address the drivers of crime.

Children and young people

Developing and maintaining initiatives that support families, schools and communities to build positive, rights-respecting environments for children and to prevent violence and bullying.

Sexual and family violence

Reducing sexual and family violence through target setting and fully resourcing a national programme of action.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Comprehensive national strategy

The New Zealand Crime and Safety Survey 2006 showed that in 2005, 39 per cent of New Zealanders had been victims of one or more crimes. Certain groups of people continue to experience greater threats than others to their security and safety, including young people, women, Māori and Pacific peoples and persons with disabilities.

Since 2004, there has been a rise in popular anxiety about crime. Successive governments have responded by implementing legislation and policy to better protect individual security by, among other things, imposing longer sentences and reducing eligibility for bail. A number of these legislative developments have tested the strength of New Zealand’s human rights protections.

The New Zealand Police have taken a number of positive steps to better protect the security of people in New Zealand. Community policing aims to prevent crime by addressing the root cause of the problem. There are approximately 1000 community policing staff around the country. They usually focus on either a geographical area or a crime problem. Recently, there has been an intensified focus on community policing in areas of high crime.

A comprehensive national strategy and programme of action is needed, to address the drivers of crime. In order to be effective at addressing the root cause of crime, this strategy needs to be developed in partnership with civil society.

Children and young people

Within the last 5-10 years, New Zealand’s standing in the OECD for rates of “intentional injury child mortality” has been a cause of shame. Unintentional injury accounts for almost nine out of 10 injury-related deaths for children aged 0-14 years. Every week (on average), just under two children (1.6) die from an unintentional injury, and 226 children suffer an unintentional injury severe enough to be admitted to hospital.

In the five years to 2005, the statistics indicate 36 children and young people less than 15 years died as a result of assault. Since 2004, notifications of suspected child abuse or neglect, as well as substantiated cases of child abuse, have been increasing.

One of the Government’s key responses to the impact of violence on children and young people has been the establishment of a cross-sectoral Taskforce for Action on Violence within Families (the Taskforce). The Taskforce has now prioritised a separate programme of action, focused on prevention of child maltreatment and neglect.

The chapters of this report that focused on the rights of children and the right to education discuss in more detail the need to support families, schools and communities to create safe, rights-respecting environments where children can be free from violence.

Sexual and family violence

In 2008, there were 44,628 incidences of recorded family violence offences, up from 29,756 in 2005. The national victimisation survey and administrative data in New Zealand indicate women are more likely than men to be physically assaulted by intimate partners and to be victimised more frequently.

Statistics collected by the National Collective of Independent Women’s Refuges (NCIWR) point to the over-representation of Māori women and children among those using NCIWR. In 2006, of the 28,845 who used NCIWR services, 42 per cent of the adults were Māori women and 51 per cent of the children were Māori.

Recently, the Committee on the Elimination of Discrimination against Women expressed concern about the continued prevalence of violence against women, particularly Māori, Pacific and minority women, and the low rates of prosecution and convictions for crimes of violence against women.[2]

The Taskforce has initiated the “It's not OK” campaign in response to growing concerns about the level of family violence in New Zealand.

[1] United Nations Human Rights Committee (1982) CCPR General Comment 6, Article 6 (Riht to Life) (16th session)

[2] See CEDAW (2007), Concluding comments of the Committee on the Elimination of Discrimination Against Women: New Zealand (10 August: CEDAW/C/NZL/CO/6)

Freedom of opinion and expression
Wāteatanga o te whakaaro me te whakapuaki

"Everyone has the right to freedom of opinion and expression."

Universal Declaration of Human Rights, Article 19

Priority Areas for Action  - Ngā mahi tuatahi

Section 61, Human Rights Act 1993

Reviewing section 61 of the Human Rights Act to ensure it fulfils its legislative purpose.

Human rights and the Internet

Promoting debate about access to the Internet as a human right and a Charter of Internet Rights.

Introduction - Tīmatatanga

Freedom of opinion and expression are rights which uniquely enable us to promote, protect and fulfil all other human rights. The rights enable us to expose, communicate and condemn human rights abuses. They also permit the celebration of human rights achievements.

Freedom of expression embraces free speech, the sanctity of an individual’s opinion, a free press, the transmission and receipt of ideas and information, the freedom of expression in art and other forms, the ability to receive ideas from elsewhere, and the right to silence.

Freedom of expression is one of a number of mutually supporting rights (including freedom of thought, of association and of assembly, and the right to vote) and is integral to other civil and political rights, such as the right to justice, and the right to take part in public affairs. Equally, the right to freedom of expression impacts on social and cultural rights, such as the right to education.

The most significant international legal source of the right to freedom of expression is set out in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    (a) for respect of the rights or reputations of others
    (b) for the protection of national security or of public order, or of public health or morals.

Current status - Āhua o nāianei

Overall, New Zealand has an enviable international reputation for upholding the right to freedom of expression. Where the right is infringed, there is strong legal, public and media comment, which tends to influence subsequent legislation, policy and practice. New Zealand has ratified the International Covenant on Civil and Political Rights. Article 19 of the Covenant provides for the right to freedom of opinion and expression. New Zealand has legislated for freedom of expression in section 14 of the New Zealand Bill of Rights Act 1990 (BoRA).

The BoRA has had the positive effect of progressively influencing the legislature, the judiciary, policy-making and public thinking about the importance of freedom of expression in a modern democracy. It has ensured a higher profile for this fundamental human right. The courts have also given a high value to the right to freedom of expression and keenly scrutinised limits placed upon it.

Controversy over freedom of expression in New Zealand politics has recently centred on electoral finance reforms. The Electoral Finance Act 2007 imposed significant restrictions in election campaigns on what could be said, who said it, and when it was said. It represented what the Commission called a “dramatic assault” on freedom of expression. The legislation was repealed in 2009, largely in response to a broad political and public consensus that the legislation created unwarranted and unjustifiable limitations on political speech. The Commission argued that it was a fundamental breach of Article 19 of the ICCPR.

New Zealand enjoys a light-handed regulatory regime for broadcasting, the self-regulation of the print media and advertising. There is increasing debate about freedom of expression and the Internet.

Areas for action - Mahi

Section 61 of the Human Rights Act 1993

Reviewing section 61 of the Human Rights Act, to ensure it fulfils its legislative purpose.

Human rights and the Internet

Promoting and facilitating debate about access to the Internet as a human right and considering whether a Charter of Internet rights should be developed in New Zealand.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Section 61 of the Human Rights Act 1993

New Zealand, like many other countries, has legislated to give effect to Article 20 of ICCPR, which requires State parties to ban “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Section 61 and 131 of the Human Rights Act 1993 (HRA) limit freedom of expression about race by prohibiting expression that is threatening, abusive or insulting, and considered likely to excite hostility against or bring into contempt a person or group of persons on the ground of their colour, race or ethnic or national origins.

Section 61 has had the most difficult history of any of the provisions of the HRA. In the past five years, there has not been a single racial disharmony complaint that has reached the threshold at which the Commission may intervene under section 61. The Commission believes there is merit in reviewing this controversial section. Currently, it is ineffective as a statutory protection and there is another section of the HRA (section 131) that provides for stronger protection.

Human rights and the Internet

The rise and ubiquity of the Internet is affecting how freedom of opinion and expression is manifested in everyday life. There is increasing debate on this issue. Higher-level discussion about rights and responsibilities is to be encouraged, given the pervasiveness of the Internet as a primary source of information and entertainment in the daily lives of New Zealanders.

The Internet has changed the context in which freedom of expression might be assessed. The result is that there are new spaces in which rights and freedoms can be exercised, such as the freedom to publish and the freedom to receive information. At the same time, the exercise of this freedom through the Internet may challenge other fundamental human rights, such as the presumption of innocence, the right to a fair trial and the rule of law.

There is a need to develop a human rights framework to apply both to the infrastructure of the Internet and to substantive internet-related policy developments. This framework is needed to ensure a consistent approach to new technological developments and the uniform application of universal and indivisible human right standards.

There is an opportunity for the Internet and human rights communities to continue to work together to foster debate about the rights and responsibilities that are part of a right to freedom of opinion and expression on the Internet.

Freedom of religion and belief
Wāteatanga o te hāhi me te whakapono

"Everyone has the right to freedom of thought, conscience and religion."

Universal Declaration of Human Rights, Article 18

Priority area for action  - Mahi tuatahi

Guidelines

Developing guidelines for respecting diversity of religion and belief in specific contexts.

Introduction - Tīmatatanga

The right to freedom of religion and belief includes the right to hold a religious or ethical belief, the right to change one’s religion or belief, the right to express one’s religion or belief, and the right not to hold a belief. The right to believe is not limited to religion. It also includes atheistic beliefs, as well as matters of conscience, such as pacifism and conscientious objection to military service.[1]

Current status - Āhua o nāianei

New Zealand has no state religion, and church and state institutions are separate. In legislation and policy, the State respects freedom of thought, conscience and religion. There are few constraints on the freedom to manifest one’s religion or beliefs.

The right to freedom of religion and belief is incorporated in New Zealand law, and New Zealand generally complies with and exceeds international standards. Some challenges remain in relation to accommodation of differences in religion and belief in practice, particularly in balancing the right to freedom of expression with the right to freedom of religion and belief, as reflected in a number of high-profile incidents. Maintaining respect for all religions and beliefs and all rights-holders requires continual work, particularly in developing relationships of mutual respect and recognising that there is an equal right to religion and to ethical belief.

Areas for action - Mahi

Guidelines

Developing guidelines for respecting diversity of religion and belief in domains such as the workplace, media, universities, health services and the criminal justice system.

Teacher training and support

Providing training and support for teachers, and further educational resources about religion and belief to support the school curriculum, as well as information to aid public understanding.

Immigration policy

Amending immigration policy to enable leaders of religious groups to take up or retain their positions with their communities in New Zealand.

Lines of communication

Establishing clear lines of communication between government and communities of religious and ethical belief at the national and local level and appropriate structures to support them.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Religion and belief continue to be a topic of public and political discussion. This is due to a range of factors including: the emergence of a more religiously diverse New Zealand, a shift away from mainstream Christianity, and a rise in those reporting no religious affiliation. This changing environment gives rise to challenges in a number of sectors.

Media

In 2004, in the context of controversy over the publication of caricatures of the Prophet Muhammad, media and faith community representatives agreed that New Zealand's increased diversity of cultures and faiths raised new challenges for the media and the New Zealand community. These challenges arise particularly in balancing the right to freedom of expression with the right to freedom of religion and belief, as reflected in a number of high profile incidents.

Workplace

An employer is required by the Human Rights Act 1993 (HRA) to accommodate the religious or ethical belief practices of an employee as long as any adjustment required “does not unreasonably disrupt the employer’s activities” (s.28(3) HRA). The Commission, in conjunction with the Victoria University Religious Studies Programme, is preparing guidelines on religious diversity in the workplace for employers and employees.

Health treatment

Some groups object to medical treatment as a breach of their religion or belief. The New Zealand Bill of Rights Act 1990 allows adults, but not children, to refuse health care in line with their religious beliefs, unless they are legally unfit to make their own decisions.

Schools

Schools also face a number of issues in respecting the diversity of their pupils’ beliefs. These range from wearing religious attire or other symbols to the content of the curriculum and classes, and, particularly, the issue of religious instruction in schools.

Policing

In 2009, the New Zealand Police launched the second edition of A Practical Reference to Religious Diversity. Covering seven major religious faiths, the guide provides information to help front-line police officers gain basic understanding and awareness of religious diversity, and explains how religious beliefs and customs may impact on their role as police officers.

Immigration

A concern raised by a number of religious organisations is the barriers faced by ministers of religion in obtaining permanent residence and work visas for New Zealand. In June 2010, the Department of Labour announced a review of immigration policies available to religious workers.

Communication

Government engagement with faith communities has increased in the past five years, and this has proven to be an effective mechanism for identifying issues of concern and developing responses. Clear lines of communication, and the necessary structures to support them, will improve this engagement.

[1] N Jayawickrama (2002), The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge: Cambridge University Press), p 653

Section three: Wāhanga tuatoru
Economic, social and cultural rights
Tikanga 
ōhanga, pāpori me te ahurea


Right to health
Tika ki te whai oranga


"Everyone has the right to enjoy the highest attainable standard of physical and mental health."

International Covenant on Economic, Social and Cultural Rights, Article 12

Priority area for action - Mahi tuatahi

Capacity

Amending the Mental Health (Compulsory Assessment and Treatment) Act 1992 to better reflect the concept of capacity in line with international standards.

Introduction - Tīmatatanga

The right to health is a broad concept, encompassing not just the absence of disease or infirmity but “complete physical, mental and social well-being”.It includes access to both timely and appropriate health care, as well as the underlying social and economic determinants of health, such as conditions of work and adequate food and shelter.[1]

The right to health is fundamental to human rights and is expressly referred to in a number of core international treaties. The most significant is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which refers to the right to the “enjoyment of the highest attainable standard of physical and mental health”.[2]

Internationally, there is increasing acceptance of a human rights-based approach to health. The World Health Organisation has committed itself to promoting the integration of human rights norms and principles in the design, implementation, monitoring and evaluation of health-related policies and programmes. The principles of equality and freedom from discrimination – including on the basis of sex and gender roles – are considered fundamental to the development of health policy, along with recognition of the rights of vulnerable groups and universally accessible health systems.[3]

Current status - Āhua o nāianei

Overall, the New Zealand health system performs fairly well, by international standards, on a comparatively low budget. Human rights principles are increasingly obvious in shaping the debate and there is recognition of the importance of open participation. The right to health itself, while not reflected as a free-standing right, is protected by a strong legal framework, and there are a large number of strategies and policies designed to address specific health issues.

Since 2004, there have been some significant international achievements. New Zealand was active in some of these, including the adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the recent United Nations resolution on preventable maternal mortality and morbidity and human rights. There are increased international mechanisms for holding States accountable and increasing recognition that economic and social rights are justiciable. There is also greater acceptance of the importance of adopting a human rights approach to the provision of health services.

Domestically, there is a clear willingness to acknowledge problems or omissions and an openness to work constructively to address them. Health service funders generally recognise the need for, and fund, services that are accessible and acceptable and provided on a non-discriminatory basis. There is also greater recognition of the importance of an inter-sectoral approach to delivering the right to health and new mechanisms (such as the Whānau Ora programme) for delivering it.

However, the New Zealand Bill of Rights Act 1990 (BoRA) needs to be extended to include social, economic and cultural rights that provide a more complete, substantive set of rights to better address the needs of all New Zealanders. Furthermore, debate about the redrafting of the Mental Health (Compulsory Assessment and Treatment) Act 1992 should be encouraged, so the Act may better reflect the concept of capacity in line with international developments and the CRPD.

Further challenges remain, including inadequate mechanisms for assessing New Zealand’s performance in realising the right to health overall, the continuing disproportionate poor health outcomes for Māori and Pacific people, and recognition of capacity in non-consensual mental health treatment.

Areas for action - Mahi

Monitoring

Ensuring the right to health is monitored across the treaty body reporting framework.

Social, economic and cultural rights

Extending the Bill of Rights Act to include social, economic and cultural rights to provide a more complete, substantive set of rights to better address the needs of all New Zealanders.

Inequalities

Tackling entrenched inequalities via a systematic, comprehensive, long term, whole of government approach with explicit targets and timelines and clear indicators to monitor the impact.

Capacity

Encouraging debate about the redrafting of the Mental Health (Compulsory Assessment and Treatment) Act 1992 to better reflect the concept of capacity, in line with international developments and the CRPD.

Background to areas for action - Tāhuhu kōrero ki ngā mahi

Monitoring

By ratifying the ICESCR, a State agrees to protect the health of its citizens and provide the services, policies and budgetary means to promote good health and ensure the elimination of health-based discrimination. States therefore need to establish some form of monitoring mechanisms, including a system of benchmarks and indicators; collection of heath data that is disaggregated on certain grounds, such as sex, age and rural/urban; and to demonstrate progressive implementation of the rights in the ICESCR.

Overall, New Zealand is considered to do a good job of monitoring inequalities and reporting on those inequalities in ways that facilitate action. However, the Committee responsible for monitoring implementation of the ICESCR also stresses the need for inter-sectoral action – that is, working across government (not just in the heath sector), to address the social, political, economic and environmental factors that influence health and inequities in health.

Although the right to health is recognised in a variety of international treaties, each instrument is reported on individually, which can make it difficult to determine how well the right is realised overall by particular States.

Social, economic and cultural rights

New Zealand has a strong legislative framework, and numerous strategies and policies are designed to ensure the provision of health care and the underlying determinants of the right to health. Aspects of the right to health are also protected by the BoRA, through the right to freedom from discrimination, the right not to be subjected to medical or scientific experimentation and the right to refuse medical treatment. However, the exclusion of economic, social and cultural rights, such as the right to health, from the BoRA means there is no explicit provision for the right to health in New Zealand law.

By ratifying the ICESCR the Government has accepted an undertaking to comply with the standards in the Convention. Extending the BoRA to include economic, social and cultural rights would provide a more complete, substantive set of rights and would better protect the rights of all New Zealanders.

Inequalities

Although health outcomes generally have improved in recent years, inequalities still persist, particularly for people with disabilities, those on low incomes, Māori and Pacific people and other minority sections of the population. The entrenched inequalities play a significant role in poor health outcomes for these particular groups, in turn affecting children and young people, thus highlighting the importance underlying determinants such as housing and nutrition play in ensuring good health generally.

Improving the effectiveness of mainstream services to ensure better health outcomes for Māori and Pacific people is recognised as an important priority. The Government also recently announced the introduction of the Whānau Ora programme, an innovative approach to the provision of services designed to empower families rather than focusing just on individuals.

ICESCR requires rights to be provided on a non-discriminatory basis, but where resources are limited they should be targeted at the most vulnerable. A human rights approach, which promotes an understanding of the right to health and the shared nature of obligations, would allow a more equitable and transparent means of distributing health resources. There is some way to go before the needs of the most vulnerable groups are adequately addressed in New Zealand.

Capacity

The Mental Health (Compulsory Assessment and Treatment) Act 1992 – which on its introduction was considered to comply with existing human rights standards – must now be viewed in light of the increasing international recognition that committal does not mean a person automatically loses their capacity to consent to treatment.

The issue of capacity and the tension between compulsory treatment and the right to refuse mental health treatment, to make an informed choice and give informed consent were priorities in the original action plan. They have been raised by mental health service users on many occasions (and constitute the most common mental health complaint received by the Commission).

A series of cases in like-minded jurisdictions on this topic has changed the way capacity is viewed internationally and indicate that simply because a person is defined as mentally disordered, it does not necessarily follow that they have lost the ability to consent to treatment. The CRPD, with its emphasis on individual capacity, has also shaped thinking in this area.

[1] Constitution of the World Health Organisation, Preamble

[2]UN Commission on Human Rights (2003), Economic, social and cultural rights: Physical and Mental Health: Report of the Special Rapporteur Paul Hunt, (E/CN.412003/58,13 February)

[3] World Health Organisation (2010)

Right to education
He tāpapa mātauranga

"Everybody has the right to free primary education." 

Universal Declaration of Human Rights, Article 26

Priority area for action - Mahi tuatahi

Human rights values

Implementing the human rights values explicit in the New Zealand Curriculum, Te Marautanga o Aotearoa and Te Whāriki, ensuring that early childhood services and schools respect diversity, are free from violence and enable full participation by children and young people.

Introduction - Tīmatatanga

Education is both a human right in itself and an indispensable means of realising other human rights. Education is essential for the development of human potential, the enjoyment of the full range of human rights and respect for the rights of others. It is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.

The right to education involves learning about rights and responsibilities. It is also about creating high-quality teaching and learning environments where there is freedom from violence, bullying and harassment, where individuality and diversity are respected, and where all those involved are able to participate fully. The right to education encompasses civil and political rights, and economic, social and cultural rights.

Core elements of the right to education include:

Current status - Āhua o nāianei


Children and young people in New Zealand have access to a rich array of educational services. Parents and guardians have a choice of schooling options within and between State-run schools, integrated schools and private schools. Institutions that provide Māori language immersion and validate Māori knowledge, structures, processes, learning styles and administration practices are available at all levels of education.

Three complementary curricula are provided: Te Whāriki for early childhood education, and the New Zealand Curriculum and Te Marautanga o Aotearoa for the school sector. These curricula have an important role in growing young people with a well founded understanding of human rights. They also support schools to give effect to the Treaty of Waitangi and New Zealand's international human rights obligations.

The New Zealand Curriculum (NZC) recognises New Zealand’s official languages – te reo Māori, New Zealand Sign Language and English. The vision of the NZC is that all three may be studied as first or additional languages, and used as media of instruction across all learning areas. Current resource allocations limit this.

By international standards, a large percentage of New Zealand students are performing well in reading, mathematics and science literacy.

A review of the right to education in New Zealand shows that since 2005, progress has been made. The 20 Hours Early Childhood Education policy has increased the number of children participating in early childhood education services. The focus on Māori and Pacific children and young people as educationally disadvantaged groups has seen an improvement in achievement rates. Likewise, there has been an improvement in achievement of those from low-decile secondary schools. Fewer are leaving school without a qualification. Changes in the Immigration Act 2009 mean undocumented children can be legally enrolled at school and Vote Education 2010 has allocated funds to facilitate enrolments.

The assessment of the right to education has also shown that there are fundamental issues to be addressed. Some of these are ongoing issues present at the 2004 review. Some are new challenges presented by the changing demographics and situations of children and young people. Most significant are the increasing ethnic diversity of children and young people and the number who live in poverty.

Areas for action - Mahi

Legal recognition of the right to education

Stating the right to education explicitly in law, thus acknowledging the inalienable right of children and young people to a quality education.

Human rights values

Establishing mentoring and monitoring processes to ensure that the human rights values explicit in the New Zealand Curriculum and Te Marautanga o Aotearoa are evident in schools’ philosophies, structures, curriculum, classrooms and relationships.

Underachievement

Addressing underachievement by:

Early childhood education and school environment

Supporting early childhood services and schools to build environments:

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Legal recognition of the right to education

The right to education is not explicitly provided for in New Zealand law, although elements are reflected in the Education Act 1964, the Education Act 1989, the Education Standards Act, and the Private Schools Conditional Integration Act 1975. The Education Standards Act responds directly to the Human Rights Act 1993 by ensuring compliance with human rights standards, particularly in areas of gender, marital status and disability. Education policy and administrative practice further supplement the realisation of this right. The Human Rights Act states it is unlawful to treat people differently on various grounds and specific areas, including access to education.

Human rights values

Arguably, the most significant government initiative in the compulsory education sector has been the development and implementation of the National Curriculum. This focuses on fostering positive relationships; creating environments that are caring, inclusive, non-discriminatory, and cohesive; building good relationships with the wider school community; working with parents and caregivers as key partners; and attending to the cultural and linguistic diversity of all their students.

A priority over the next period for government, school communities, academic and research institutions, civil society organisations, human rights organisations, iwi and hapū, and others, could be to coordinate efforts to achieve the vision of the National Curriculum through, amongst other things, mentoring and monitoring processes.

Underachievement

Early childhood education is still not universally accessible. The 20 hours granted to teacher-led services in 2007 aimed to reduce cost barriers and increase participation rates in early childhood education. Recent impact assessments show, however, that middle- and higher-income families are benefiting most from these hours.

Barriers to access and successful engagement in education still exist for specific groups of children and young people. For example, high suspension, exclusion and expulsion rates remain an issue for Māori, males and students from low-decile schools. Despite a range of government initiatives, many disabled students and their families have difficulty accessing inclusive education. Formal and informal costs of education also continue to create barriers to successful participation.

As a result of these barriers, successful participation and achievement rates continue to be disproportionately low for some groups, including Māori, Pacific, male and disabled children and young people, and those from low-decile schools. The gap between those achieving at an average rate and those not achieving has narrowed but is still large compared to other OECD countries.

Early childhood education and school environment

Children and young people still experience bullying and discrimination at early childhood centres and schools. New Zealand has high levels of student-to-student and student-to-teacher physical and emotional bullying in schools in comparison to other countries. Particularly vulnerable groups include disabled children and young people; ethnic minorities; and same-sex attracted, trans and intersex children and young people.

Emerging international evidence demonstrates a human rights-focused school contributes to the development of a stronger human rights respecting culture, with a decrease in incidents of violence, bullying and abuse.


Building human rights-focused school communities requires making explicit in legislation, policies and practice the human rights values, principles and statements set out in the Universal Declaration of Human Rights. Whilst human rights are an obligatory part of the National Curriculum, there is no nationwide systematic human rights education strategy.

Right to work
Tika ki te whai mahi

"Everyone has the right to work, the right to equal pay for equal work and the right to a decent income and working conditions."

Universal Declaration of Human Rights, Article 23(1)

Priority area for action - Mahi tuatahi

Equal Employment Opportunities Framework

Implementing a new framework for equal employment opportunities that addresses access to decent work for disadvantaged groups such as Māori, Pacific youth, and disabled people.

Introduction - Tīmatatanga

The right to work is a fundamental human right, strongly established in international law. It recognises that work is not solely a source of income that provides for the basic necessities in life, but has the potential to satisfy social, intellectual and personal needs and, therefore, is integral for a life of human dignity.

Article 23 of the Universal Declaration of Human Rights (UDHR) sets out the key components of the right to work. Employment must be “freely chosen”, under “just and favourable conditions” and equally giving right to “just and favourable remuneration,” “protection against unemployment” and “to form and to join trade unions.”

The right to work underpins the realisation of other human rights, such as the right to housing, the right to education and the right to culture. Article 24 of the UDHR ensures everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

When advocating for the right to work, the Human Rights Commission uses a framework which spans protection from unemployment and how people access work, their work conditions and equal opportunities while in employment, through to their exit from the labour market.

Current status - Āhua o nāianei

New Zealand’s legislative framework and mechanisms generally comply with international standards on the right to work, with few reservations. The Commission believes a plan of action to ratify ILO Conventions 87 and 138 and the lifting of any Convention reservations related to employment is needed. The Commission believes the Government should support ILO standard setting for decent work in New Zealand and internationally.

In recent years, a number of workplace reforms have advanced workers’ rights including; flexible work legislation, paid parental leave, holidays, rest breaks, and breastfeeding protections. However, proposed changes to employment legislation, such as trial periods, are of concern to the Commission in its promotion of the right to work, a “decent work” agenda and equal employment opportunities.

A number of groups continue to experience disadvantage in the New Zealand labour market, including disabled people, who are among the most disadvantaged. Māori, Pacific and youth are also vulnerable groups, illustrated by escalating unemployment rates during the global recession. The Commission would like to see strategies to increase access to work for Māori, Pacific and disabled people, and a youth-to-work programme for every young New Zealander.

Women continue to experience pay and employment inequities, and the Commission believes there is a strong case to ensure pay and employment equity is secured across both the public and private sectors.

Disadvantaged groups – often low paid, seasonal and casual workers – have low bargaining strength in the labour market and are most likely to be disadvantaged by changes that strengthen employers’ rights and power. Greater assistance is needed for these workers and others who are in transition.

It is the Commission’s view that mechanisms to address systemic discrimination and disadvantage should be strengthened. State sector legislation requiring employers to be “good employers” that have an equal employment opportunities programme should be the same in the private sector.

The 2009 global recession is the largest and longest since the Great Depression of the 1930s. Not since 1981 has real gross domestic product GDP fallen in consecutive quarters across the whole of the OECD.

During a national consultation about work in New Zealand, the Commission observed many employers were less willing to give people a go, because they were particularly keen to operate a lean labour force. This appears to have impacted disproportionately on marginalised groups, such as younger people and those with disabilities, who struggle to gain unskilled or semi-skilled employment.

Changes to employment occurring at a time of global economic uncertainty require a renewed commitment to equal employment opportunities and revision of mechanisms to ensure fairness at work.

Areas for action - Mahi

Equal employment opportunities framework

Implementing a new framework for equal employment opportunities that specifically addresses access to decent work for disadvantaged groups such as Māori, Pacific youth, and disabled people, and covers pay and employment equity issues for men, women and families.

International Labour Organisation conventions

Ratifying ILO Conventions 87 and 138; and lifting any Convention reservations related to employment and advancing EEO.

Domestic workers

Supporting ILO standard-setting for domestic workers in New Zealand and internationally.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Equal employment opportunities framework

A number of groups continue to experience disadvantage in the New Zealand labour market. Disabled people are among the most disadvantaged groups in the current New Zealand labour force and have suffered in the global recession. The New Zealand labour force participation rate for disabled people in 2006 was 45 per cent compared to non-disabled people at 77 per cent.

Youth employment is also a major issue in New Zealand. The unemployment rate for youth was 17.6 per cent for the year to June 2010, well above the annual average rate for all persons of 6.64 per cent. The Department of Labour reported youth are one of the most affected groups during labour market downturns.

Māori youth unemployment figures are among the highest of any group in New Zealand at 30.3 per cent in June 2010. Although the labour force participation rate for Māori has increased steadily over the past five years, the recession has had a severely detrimental effect on Māori, particularly in Auckland, Northland and on the East Coast.

The unemployment rate for Pacific peoples was 14.1 per cent for the year to June 2010, 3.8 per cent above its level 12 months prior. The recession has had a major impact on Pacific people, as a significantly high proportion are employed in unskilled and lower-skilled jobs and are at higher risk of unemployment.

The Commission would like to see strategies to increase access to work for Māori, Pacific and disabled people; and a youth-to-work programme for every young New Zealander.

Despite increased women’s participation in the workforce, this growth has not necessarily translated to greater equality. The gender pay gap has persisted at around 11-13 per cent over the last decade. The representation of women in senior management and governance roles lags behind that of men. The Commission believes there is a strong case to ensure pay and employment equity is secured across both the public and private sectors.

ILO conventions

New Zealand has ratified six of the eight fundamental conventions but has yet to ratify the conventions on Freedom of Association and Protection of the Right to Organise ILO87 and Minimum Age ILO138.

The Government’s position in relation to ILO87 is that the Employment Relations Act 2000 provides for the right to organise, to bargain collectively and to strike (in certain circumstances). It also recognises the role of trade unions. Similarly, in relation to ILO138, the Education Act 1989, the Health and Safety in Employment Act 1992 and Health and Safety in Employment Regulations 1995, provide effective age thresholds for entry to work in general and for safe work. ILO138 stipulates the minimum age for admission to employment or work shall not generally be less than 15 years.

The Commission considers that if New Zealand law and practice is in line with the principles of ILO138 and ILO87, then these conventions should be ratified. The Human Rights Act 1993 (HRA) provides little protection for those aged 16 years and under. The Commission has argued for the age of cover in the HRA to be extended in relation to employment protection.

Domestic workers

The ILO sets international labour standards and assists countries to implement “decent work” agendas at national level. New Zealand’s tripartite approach brings together government, workers (represented by unions) and employers in dealing with New Zealand’s own decent work programme and ILO matters.

In 2010, the ILO agreed to begin work on a new standard to protect the rights of domestic workers. While a majority of countries favoured development of a convention, New Zealand did not, and received strong criticism from the Commission and unions as a result. While domestic workers in New Zealand are covered by basic employment provisions, they have traditionally had limited coverage in employment and discrimination law, because they work in private homes and not in offices, factories or workplaces.

Right to housing
Tika ki te whai whare rawaka

"Everyone has the right to live in security, peace and dignity."

United Nations Committee on Economic Social and Cultural Rights, General Comment 4

Priority areas for action - Ngā mahi tuatahi

Homelessness

Developing and implementing regional and national strategies to reduce homelessness.

Social housing provision

Increasing the supply and diversity of social housing.

Introduction - Tīmatatanga

The inability to obtain decent, affordable housing is one of the major barriers to an adequate standard of living. Additionally, the quality of housing directly affects people’s health, particularly in the case of children and old people. For children, security and adequacy of housing have far-reaching effects on their health, achievements in education and their general development. Improved data and research are required in order to identify and address significant barriers that disabled people face trying to access affordable and appropriate housing.

The right to housing includes:

The right to housing for women, children and disabled people, respectively, is specifically mentioned in various international human rights conventions.

Current status - Āhua o nāianei

With respect to the right to housing, New Zealand is taking progressive steps towards meeting or surpassing human rights standards in a number of key areas:

In other areas, however, New Zealand is falling well short of international human rights standards around the right to housing:

One of the challenges in making progress and furthering full realisation of the right to housing is the siloed nature of New Zealand’s system of government and public accounting. This makes it almost impossible to offset investment in one area against direct, measurable benefits in another. Yet a whole of government approach is required to address the housing issues outlined in this report.

Prioritising the right to healthy, affordable housing has a demonstrably positive impact on health, educational development, and social and psychological well-being. This is particularly important for vulnerable groups, including children and young people, disabled people and the elderly.

Areas for action - Mahi

Homelessness

Developing and implementing regional and national strategies to reduce homelessness, including the collection and monitoring of official data on homelessness.

Social housing provision

Increasing the supply and diversity of social housing through enhanced direct provision by central and local government and supporting community housing providers.

Housing affordability

Enhancing housing affordability by extending measures to support first home ownership and to improve rental affordability.

Housing design

Developing and implementing universal design standards to improve housing habitability, accessibility, cultural adequacy and safety.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Homelessness

Homelessness is a symptom of unaffordable housing and inadequate supports for people in need, including those requiring mental health support or assistance on exiting prison. International research shows that the long-term personal and economic costs of homelessness are significant.

In New Zealand, there is no homelessness policy at the central government level. At the local government level, Wellington and Auckland City Councils are the only councils known to have homelessness policies.

In early 2009, ministers agreed to a work programme to address issues around crisis, transitional and long-term housing for those in most need, including disabled people and those fleeing violence at home. Community housing providers who submitted on this chapter raised concerns that this work programme seems to be progressing very slowly. They stressed that the results of this work need to be published and action plans created to address gaps and failures.

Statistics New Zealand has recommended further joint work by government agencies to continue research into measures and statistics on homelessness.

Social housing provision

New Zealand was one of the first countries to provide state housing for low-income workers unable to purchase through the open market, and with less bargaining power in the private rental market. Over time, the remit of social housing has changed to prioritise people with special housing needs who cannot otherwise access adequate housing.

Today, limited availability of state houses and tight eligibility based on need mean that many low-income working families are very unlikely to gain a state tenancy.

The Housing Shareholders Advisory Group (HSAG) was established to provide advice on state and social housing. In its first report, released in August 2010, the HSAG commented that it was “struck by the severity of the affordable housing shortage and the negative future trends.”[1] The HSAG’s recommendations focus on four areas:

Housing affordability

Affordability is one of the primary indicators of the right to housing. In New Zealand, the inability to obtain decent, affordable housing is one of the most significant barriers to an adequate standard of living. Low affordability, whether of owned or rented housing, leaves households with less money for other items essential to good health, including a nutritious diet, primary health services and winter heating.[2] It can lead to living in crowded or substandard or unhealthy temporary accommodation.

In a 2009 survey, people who lived in rented dwellings were more than twice as likely as people who lived in owner-occupied dwellings to report they did not have enough money to meet everyday needs.[3]

Home ownership affordability has emerged as a significant issue in New Zealand. No other OECD country has experienced a fall in home ownership of the magnitude that has occurred in New Zealand since 1991. House prices and mortgage rates still have a long way to fall relative to earnings before the affordability of a newly built home returns to 1990s levels.

Housing design

Key factors that can affect the habitability of both state and private sector housing are coldness, dampness and crowding, which can have debilitating health implications. Almost a third of New Zealand homes fall below the World Health Organisation recommended indoor temperature of 18°C.

Other issues that can arise in relation to housing design are accessibility, cultural adequacy and safety. In New Zealand, cultural adequacy issues have arisen around the size and design of state housing stock, including the need for low-cost communal housing.

Disabled people and the Government spend considerable amounts on basic housing modifications. Universal design would enhance the habitability, accessibility and safety of housing for disabled people.

While legislation provides minimum standards that houses must reach for people to be able to live in them, there is no clear definition of what constitutes an acceptable quality house. A quality standard or rating scheme for rental properties would allow prospective tenants to better assess a property before they committed to a tenancy.

[1] Housing Shareholders Advisory Group (2010), Home and Housed. A Vision for Social Housing in New Zealand (Wellington: HSAG)

[2] Auckland Regional Public Health Services (2005), Housing and Health – A summary of selected research for Auckland Regional Public Health Services (Auckland: Auckland Regional Public Health Services)

[3] Ministry of Social Development (2009), The Social Report (Wellington:MSD)

Right to social security
Tika ki te hapori haumaru

"Everyone has the right to a standard of living adequate for their health and well-being."

Universal Declaration of Human Rights, Article 25(1)

Priority areas for action - Ngā mahi tuatahi

Poverty reduction

Reducing child poverty through a coordinated and integrated approach, with specific attention to Māori, Pacific and disabled children.

Adequacy of core benefits

Reviewing and addressing the adequacy of core benefit rates.

Introduction - Tīmatatanga

The right to an adequate standard of living is about "the human person’s rights to certain fundamental freedoms, including freedoms to avoid hunger, disease, and illiteracy”.[1] It includes specific rights to adequate food, clothing and housing, and to social security and work. This right is essential in order to achieve other economic, social and cultural rights, such as the rights to health and education.

The right to an adequate standard of living provides a benchmark for assessing how well States provide both a safety net for groups vulnerable to poverty and opportunities for people to participate to their full potential.

A critical component of the right to an adequate standard of living is the right to social security. The right to social security is of central importance in guaranteeing human dignity for people when circumstances deprive them of the capacity to fully realise their economic, social and cultural rights.

The Committee on Economic, Social and Cultural Rights has identified five essential elements of the right to social security:

Current status - Āhua o nāianei

With respect to the right to social security, New Zealand is meeting or surpassing human rights standards in a number of key areas. New Zealand has a welfare system that covers all social risks and contingencies identified in the relevant international covenants and conventions.

Rates of hardship amongst older people are low. New Zealand Superannuation is a compelling example of what it means to provide accessible, sustainable and adequate social security for the elderly.

Recent policy initiatives show it is possible to reduce child poverty rates substantially over relatively short periods of time. Without the Working for Families package, child poverty rates would have risen from 26 per cent to around 30 per cent between 2004 and 2008. Instead, they fell to 22 per cent. However, sustained progress requires continued commitment and specific targeting of the most vulnerable.

There are other areas where New Zealand is falling well short of international human rights standards. The right to social security is compromised if core benefit levels do not enable people to feed and house themselves and their families. Civil society groups play a significant role in mitigating the effects of inadequate income, particularly through food banks. However, they lack the resources or tools to deal with systemic inequalities, nor is it their prime responsibility.

In New Zealand, people are not dying of starvation, but relative poverty means some people do not get enough nutritious food to eat. This can be critical at early stages of a child’s development, with direct impacts on health and education outcomes. Poor health and reduced educational achievements are felt most harshly by individual children, but are also detrimental to New Zealand’s overall economic and social development. As the OECD has advised, New Zealand needs to take a stronger position on child poverty.

Areas for action - Mahi

Child poverty reduction

Reducing child poverty, with specific attention to Māori, Pacific and disabled children by developing a coordinated and integrated approach across economic, social and population agencies.

Data needs

Identifying and addressing data needs required to set measurable child poverty targets for specific population groups.

Measurable targets

Adopting measurable targets, and reporting annually on the effectiveness of economic and social policies in meeting these targets.

Adequacy of core benefits

Reviewing and addressing the adequacy of core benefit rates.

Background to areas for action - Tāhuhu kōrero ki ngā mahi

Poverty reduction

In New Zealand, an official commitment to eliminate poverty emerged in the context of the Agenda for Children (launched in June 2002). In 2005, Working for Families was explicitly framed as an “offensive on child poverty”.

However, New Zealand, like many other countries, does not have an official measure of poverty. Given its complex nature, poverty cannot be captured by a single indicator. Each measure shows a different aspect of relative poverty or material hardship.

Of particular concern to the Commission is the rate of child poverty in New Zealand. Children are dependent on adults for food, clothing and housing. When parents do not have sufficient income, there is a direct impact on their children. Redistribution through the tax-welfare system plays a particularly critical role in mitigating child poverty generated by the market distribution of incomes.

New Zealand’s child poverty rates are above average for the OECD. In 2009, the OECD’s first ever report on outcomes for children concluded that “New Zealand needs to take a stronger policy position on child poverty and child health, especially during the early years when it is easier to make a long-term difference.”[2] It identified New Zealand Government spending on children as being considerably below the OECD average, particularly for young children (where New Zealand spends less than half the OECD average).

A comprehensive 2008 report on child poverty prepared for the Office of the Children’s Commissioner recommended actions needed in the health, education, employment, housing, social security and tax sectors. Even more fundamentally, it called for a cross-government commitment to eliminating child poverty, with intermediate milestones, and clear measurable targets for key indicators in the areas of education, housing and health.

Adequacy of core benefits

The real value of core benefits, including family tax credits, remains well below levels prior to cuts in the 1991 Budget. Even when accommodation and special benefit /temporary assistance supplements are taken into account, the level of financial support to beneficiaries has fallen in real terms since 1991.

The 1972 Royal Commission on Social Security recommended that the welfare system should ensure beneficiaries had a standard of living at least similar to that of other New Zealanders, so that they were able to participate in and feel they belonged to the community at large. This requires that core benefits be regularly adjusted to reflect changes in actual living costs, and to maintain relativity with standards of living across the wider community.


[1] United Nations Economic & Social Council (2003), Economic, social and cultural rights: Implementation of existing human rights norms and standards in the context of the fight against extreme poverty (Geneva: United Nations), p 7

[2] Organisation for Economic Cooperation and Development (2009), Doing Better for Children (Paris: OECD). Accessed 25 June 2010 from www.oecd.org/els/social/childwellbeing.

Section four: Wāhanga tuawha
Rights of specific groups
Tikanga uep
ū


Rights of children and young people
Tikanga tamariki me te taiohi

"The best interests of the child shall come first."

United Nations Convention on the Rights of the Child, Article 3

Priority areas for action - Ngā mahi tuatahi

UNCROC obligations

Ensuring that legislation reflects New Zealand’s obligations under the Convention on the Rights of the Child, including recognising the interests of the child, the age of criminal responsibility, protection under the Children, Young Persons and Their Families Act, age discrimination protections and adoption procedures.

Participation

Increasing avenues for children to participate and have their views heard.

Introduction - Tīmatatanga

Children and young people under the age of 18 have the same basic human rights as adults. Children also have specific human rights that recognise their special need for protection.

Children’s rights are commonly viewed as falling into three categories: provision rights, protection rights and participation rights. Provision rights include the right to an adequate standard of living, the right to free education, the right to adequate health resources and the right to legal and social services. Protection rights include protection from abuse and neglect, protection from bullying, protection from discrimination, and safety within the justice system. Participation rights include the right to freedom of expression and the right to participate in public life.

Children live, learn and grow, not in isolation, but as part of families, whānau and communities. Even though they are autonomous rights holders, children – particularly younger children – are dependent on others to give effect to their rights (for example, parents or teachers). As children grow, they are able to exercise their rights in an increasingly independent manner.

Children’s rights are enshrined in the United Nations Convention on the Rights of the Child (UNCROC). This convention is one of the key international human rights treaties and is the most widely accepted of the human rights instruments. It has been ratified by 195 countries, including New Zealand in 1993.

Current status - Āhua o nāianei

Overall, the situation for most children and young people in New Zealand is generally positive. Most children are able to enjoy their human rights, are protected and cared for, with opportunities to learn, develop and have fun. Since 2004, there have been some significant developments in the key areas of health, education, justice and material well-being that have impacted positively on the lives of children.

However, children remain relatively invisible. Their rights and interests are not routinely considered or their views sought or heard. Without effective mechanisms that enable children to participate in decisions that affect them, their voice is largely unheard and their interests can be ignored or subsumed.

While a range of policies for children exist, there is little coordination of these. There is also a need for a better understanding – through systematic data collation and analysis – of the level of investment being made for children, how and where spending is targeted and the impact it is having.

Despite improvements for children, significant numbers are being left behind and too many children experience violence and neglect, poverty and poor health and barriers to the full enjoyment of their right to education. Enduring inequalities remain, with Māori and Pacific children disproportionately experiencing poor outcomes. These disparities represent a failure to meet all children’s rights to development.

Children are the age group most likely to be affected by poverty and material hardship, and this distinction has persisted through good economic times and bad. Child poverty directly impacts on health and education outcomes, with the effects of poor outcomes in early childhood reaching into later childhood, adulthood and often into the next generation of children. Addressing these complex issues poses significant challenges and requires a sustained commitment and careful targeting of those most vulnerable.

Areas for action - Mahi

Reservations to UNCROC

Removing the remaining reservations to the Convention on the Rights of the Child, with clear steps and timetable for action identified.

Legislative recognition

Establishing a mechanism to ensure children’s rights and views are systematically considered and incorporated in legislation and policy development.

UNCROC obligations

Ensuring that legislation reflects New Zealand’s obligations under the Convention on the Rights of the Child, including

Younger children

Prioritising resourcing for programmes and services for younger children and their families (from conception to age six).

Child poverty and inequality

Prioritising eliminating child poverty and addressing inequalities affecting Māori and Pacific and disabled children.

Data collection

Improving coordination, collation and analysis of data to support and inform policy making and budgetary allocations and to monitor their impacts on children.

Positive environments

Developing and maintaining initiatives that support families, schools and communities to build positive, rights-respecting environments for children and to prevent violence and bullying.

Participation

Increasing avenues for children to participate and have their views listened to, including by supporting and expanding existing initiatives that effectively enable child participation.

Awareness

Improving knowledge and awareness of human rights, including the Convention on the Rights of the Child.

Background to areas for action - Tāhuhu kōrero ki ngā mahi

Reservations to UNCROC

New Zealand ratified UNCROC in 1993 with three formal reservations. These related to children unlawfully in New Zealand, the protection of children in employment, and the mixing of juvenile and adult prisoners.

Almost 17 years since ratifying UNCROC, New Zealand has still not removed these reservations. While government agencies have undertaken work towards withdrawing the reservations, the Committee on the Rights of the Child (CRC) has expressed concern and disappointment at the slowness of the process and lack of progress.

UNCROC obligations and legislative recognition

Since 2004, a range of legislative developments have had significant impact on children’s rights in New Zealand. Legislative developments that have strengthened legal protections for children’s human rights include the Care of Children Act 2004 and the Crimes (Substituted Section 59) Amendment Act 2007, which deals with corporal punishment of children by parents or guardians.

Remaining challenges include: the lack of a consistent “best interest” test to ensure the interests of the child are always a primary consideration; a low minimum age of criminal responsibility that has attracted concern from the CRC; inconsistencies in the legal definition of the child, including failure to pass amendments to the Children, Young Persons and Their Families Act to extend protections to 17-year-olds; gaps in age discrimination protection and in adoption legislation.

Younger children

In 2009, the Organisation for Economic Co-operation and Development reported that in recent years New Zealand spent less than the OECD average on young children in particular, despite the fact that spending on young children is more likely to generate positive changes and make a difference in the long term. Based on international evidence, the OECD concluded that New Zealand should spend considerably more on younger, disadvantaged children, and should ensure current rates of spending on older children are more effective in meeting the needs of the disadvantaged amongst them.

Child poverty and inequality

There have been numerous initiatives that are contributing to improve child health and welfare. However, while there have been improvements in child poverty and hardship rates since 2004, children remain over-represented in those figures.

Child poverty is unevenly distributed across society, particularly affecting sole-parent families, families with no adult in full-time work, Māori and Pacific peoples and disabled children.

Children in poor families are more likely to be sick and injured, they are at greater risk of abuse and neglect, and their educational achievement and subsequent employment opportunities are affected as a result.

A comprehensive 2008 report on child poverty called for a cross-government commitment to eliminating child poverty, with intermediate milestones and clear measurable targets for key indicators in the areas of education, housing and health.

Data collection

Another issue raised by the CRc in 2003 was the lack of available data on budgetary allocations for children. The Committee recommended collection of disaggregated data on budget allocations for children and the systematic assessment of the impact of economic policy on children.

While government agencies collect a large amount of data about children, a lack of overall coordination can mean information is not always easily available or being put to best use to inform policy. There is a particular lack of data about disabled children.

Positive environments and awareness

The abuse and neglect of children continues to be a major issue of concern, despite wide recognition of the problem and wide-ranging efforts to address it. In OECD rankings, New Zealand rates poorly in terms of child health and safety, and in the past has had one of the highest rates of child maltreatment deaths.

Recent research has found a significant proportion of young people experience various forms of violence and bullying. Particularly vulnerable groups include those who are disabled; ethnic minorities; and same-sex attracted, trans and intersex children and young people.

There is considerable government funding and government and civil society emphasis and cooperation on addressing the issue of child abuse and maltreatment. A key development has been the establishment of the cross-sector Taskforce for Action on Violence Within Families.

The New Zealand Curriculum for Schools provides that “respect for self, others and human rights” are values to be “encouraged, modelled and explored” and “evident in the school’s philosophy, structures, curriculum, classrooms and relationships”. The Human Rights in Education initiative supports schools to become human rights communities.

Participation

Article 12(1) of UNCROC provides that, in accordance with the evolving capacities of the child, due weight should be given to their views on matters affecting them. The CRC has highlighted the need to ensure that the right of young people to have their views taken into account in administrative or judicial processes that affect them is included in legislation and regulations.

Recent and pending pieces of legislation (such as the Care of Children Act 2004, the Evidence Act 2006 and the Children, Young Persons and their Families Amendment Bill (No 6)) provide for improved recognition and opportunities for children and young people to express their views and for these to be taken into account. In some areas, however, (notably adoption laws) provision for children’s participation in decisions remains limited.

Rights of disabled people
Tikanga o te hunga hauā

"People with disabilities should be involved in decisions that affect them."

Convention on the Rights of Persons with Disabilities, Preamble

Priority areas for action - Ngā mahi tuatahi

Measuring outcomes

Developing a full range of social statistics to ensure key outcomes for disabled people are measured.

Implementing the Convention on the Rights of Persons with Disabilities (CRPD)

Ensuring an integrated and coordinated Government response to implementing the CRPD with the full participation of disabled people.

Introduction - Tīmatatanga

Internationally, disabled people remain amongst the most marginalised in every society. No matter what the human rights or economic situation of a country, disabled people are generally amongst the last to have their human rights respected.

Disability is an evolving concept. The Convention on the Rights of Persons with Disabilities (CRPD) says disability results from the interaction between a non-inclusive society and individuals with impairments. Persons with disabilities include “those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”[1]

The CRPD affirms that disabled people enjoy the same human rights as everyone else and are able to lead their lives as full citizens. It does not recognise any new human rights, but clarifies the obligations and legal duties of states to respect and ensure the equal enjoyment of all human rights by all persons with disabilities.

Current status - Āhua o nāianei

Disabled people are among the most marginalised in New Zealand. In fundamental areas such as employment, education, an adequate standard of living and accessible public transport, disabled people are significantly disadvantaged.

Government policy has moved towards providing strategies, policies and funding to meet these challenges, but progress has been slow.

New Zealand adopted a strong leadership role in ensuring the CRPD was developed as a partnership between disabled people and their organisations, national human rights institutions, and government representatives. It also enhanced its commitment to the CRPD  by ensuring that New Zealand’s laws were consistent with the CRPD before ratification took place. The role New Zealand played internationally in the development of the most recent international treaty has brought with it heightened expectations that New Zealand will continue to be a leader in promoting and implementing the CRPD.

The continuation of a dedicated ministerial portfolio (a Minister and an Associate Minister for Disability Issues) and the formation of a Ministerial Committee on Disability Issues to coordinate the implementation of CRPD sets in place high-level leadership to continue the work on implementation of the CRPD.

Other areas in which New Zealand has made good progress for disabled people include:

There remain, however, significant issues in supported living services, education, employment, health and transport, as well as in relation to the participation of disabled people in decisions that affect them.

Areas for action - Mahi

Measuring outcomes

Developing a full range of social statistics to ensure key outcomes for disabled people are measured.

Inclusive education

Ensuring all disabled students have a right to inclusive education, including explicit protection in the Education Act, mandatory minimum standards and adopting the United Nations guidelines on inclusive education.

Whole of government approach

Adopting a whole of government approach to providing supports to disabled people to achieve an ordinary standard of living and access to and maintenance of equal employment opportunities.

Implementing the CRPD

Ensuring an integrated and coordinated government response to implementing the CRPD, including the full participation of disabled people in the process and adoption of the optional protocol.

Public land transport

Ensuring all public land transport services are fully accessible through the development, by the Ministry of Transport and the New Zealand Transport Agency, of a comprehensive work programme to respond to all outstanding issues from the Accessible Journey.[2]

New Zealand Sign Language

Developing a mechanism to promote the maintenance and development of NZSL, including competency standards for interpreters and educators and promoting respect for NZSL to all New Zealanders.

Equality before the law

Reviewing all relevant legislation to ensure disabled people have equal recognition before the law and where necessary have access to supported decision-making.

Whānau hauā - Māori disabled

Ensuring the needs of whānau hauā (Māori disabled) are assessed and responded to by inclusion in government strategies for health, mental health, employment and education.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Measuring outcomes

A singular barrier to effective measurement of progress for disabled people is the absence of data about them and their experiences. Their lack of visibility in many important statistics, such as employment and labour market participation, prevents comparisons and limits time series data. The result is a limited policy overview of the progress disabled people are making. It will also limit the monitoring of the CRPD and will impact on New Zealand’s first report to the United Nations committee.

Inclusive education

A significant issue for many disabled children and young people is universal access to inclusive education. New Zealand has made progress in shifting education for disabled students away from segregated facilities and towards supporting students in their local communities. There are a number of very good initiatives at the national, regional and local level. However, a significant number of disabled students cannot get access to their local school, have difficulty accessing the supports necessary to reach their full potential and cannot access the full curriculum. A number of recent official reports highlight both the progress made and the work yet to be done. The requirements for inclusive education provided by the United Nations Special Rapporteur on Education provide guidelines for future progress in this area.

whole of government approach

Amongst the most important systemic issues for adult disabled people in New Zealand is equal access to employment opportunities. The gap between employment rates for disabled people and non-disabled people has barely changed in over a decade despite favourable economic conditions for much of that time. Particular issues include the transition from school to work, further education and community life, the integrated functioning of various government supports to produce high quality employment outcomes, residual discrimination and the operation of the supported employment systems to produce the best solutions for those not able to obtain or maintain mainstream employment.

Implementing the CRPD

Article 33 of the CRPD calls on signatory countries to provide for an integrated and coordinated Government response to implementing the CRPD, including the full participation of disabled people in the process and the adoption of the optional protocol. In New Zealand the Office for Disability Issues is the focal point within government to implement the CRPD. The Human Rights Commission will be working with the Ombudsmen’s Office and the Convention Coalition, a grouping of disabled people, to promote, protect and monitor implementation of the Convention.

Public land transport

Accessible public land transport is essential to enable disabled people to take part in all aspects of community life, such as education, employment, recreation and leisure, and accessing essential services such as health. After receiving a significant number of complaints and enquiries in this area, the Commission conducted a national inquiry into the issue. The inquiry found public land transport is significantly less available, less accessible, less affordable and less acceptable to disabled people than it is to non-disabled people. Since the inquiry report, a number of initiatives have significantly improved the accessibility of public land transport services, however significant gaps remain.

New Zealand Sign Language

The New Zealand Sign Language Act 2006 establishes New Zealand Sign Language (NZSL) as an official language of New Zealand and the Government has provided some support for the development of NZSL. There have been more cuts than initiatives, however and the cumulative result is that Deaf people suffer inequalities through linguistic discrimination.To make further progress, the Commission believes a mechanism needs to be developed to promote the maintenance and development of NZSL.

Equality before the law

The CRPD provides that an individual cannot lose her or his legal capacity to act simply because of a disability. Some disabled people will require assistance to exercise this capacity and States must do what they can to support those individuals including safeguards against abuse. Disabled people should be supported to exercise legal capacity to the greatest extent possible in every situation or circumstance.

Whānau hauā - Māori disabled

Māori are more likely to be disabled than non-Māori and disabled Māori are amongst the most disadvantaged groups in New Zealand. Despite this the Government appears not to have consulted with this group in order to find out their needs and incorporate them in their various strategies and work programmes.

[1] CRPD, Article 1 

[2] Human Rights Commission (2005) The Accessible Journey: Report of the Inquiry into Accessible Public Land Transport (Wellington, HRC)

Rights of women
Tikanga o te ira wahine

"We condemn discrimination against women in all its forms. "

Convention on the Elimination of all Forms of Discrimination against Women, Article 2


Priority areas for action - Ngā mahi tuatahi

Pay and employment equity

Timetabling pay and employment equity implementation with a minimum target of halving the gender pay gap by 2014 and eliminating it by 2020.

Sexual and family violence

Reducing sexual and family violence through target setting and fully resourcing a national programme of action.

Introduction - Tīmatatanga

Women and girls have the same fundamental human rights as men and boys. Those rights are explicitly set out in the Convention on the Elimination of Discrimination against Women. Discrimination is “an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries”.[1]

Special measures, including affirmative action, that specifically target or assist women to achieve equality with men are permissible in international and domestic law.

Women who are also members of other marginalised groups – such as indigenous women, women from ethnic minorities and disabled women – often suffer from multiple disadvantages and therefore require additional human rights protections.

The unique role of women as mothers is also recognised in international human rights protections.

Current status - Āhua o nāianei

Compared to many women across the world, women in New Zealand have made significant progress towards equality over the last century. New Zealand women fare well, relatively speaking, in some authoritative international measures. The Global Gender Gap Index, produced by the World Economic Forum, currently places New Zealand fifth. The index calculates: economic participation and opportunity; educational attainment; health and survival; and political empowerment.

Despite positive economic and social progress, however, equality between men and women has not yet been achieved and progress on many key indicators is either slow or static. In recent years, progress in a number of key areas has either stalled or regressed. Analysis of the progress of women from different ethnicities or disabled women across a range of areas lacks visibility, because of the inadequate collection of, and disaggregation of, data. This limits the ability to analyse the participation and representation of different groups of women across a wide range of public life and professional activities.

Four critical issues relating to women’s rights in New Zealand emerged from this review: economic equity; representation and participation; violence against women; and maternity protections.

New Zealand is at a critical juncture in eliminating discrimination against women and achieving equality. The gains made by women in recent decades are fragile and at risk of being eroded. Concerted action by government, public agencies and civil society is needed to keep gender on the agenda.

Areas for action - Mahi

Pay and employment equity

Timetabling pay and employment equity implementation with a minimum target of halving the gender pay gap by 2014 and eliminating it by 2020.

Sexual and family violence

Reducing sexual and family violence through target setting and fully resourcing a national programme of action.

Representation

Improving female representation at CEO and senior management level and on boards in the public and private sectors.

Paid parental leave and early childhood education

Extending paid parental leave to seasonal workers presently excluded and men in their own right, and increasing availability and affordability of early childhood education in rural, provincial and urban areas.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Pay and employment equity

Significant positive steps have been taken since 2004 towards economic equity for women. Progressive increases to the minimum wage over the last 10 years have improved the wages of a significant number of women in low-paid work, and universal superannuation has ensured that in retirement, very few women live in poverty. The Department of Labour’s Pay and Employment Equity Unit, before its disestablishment, developed a suite of tools for reviewing the equity of remuneration and employment conditions, which have been used in reviewing pay and employment equity across the state sector.

The gender pay gap, which persists at 11-13 per cent overall, is very much higher for Māori and Pacific women. There is variable evidence of progress in implementing pay and employment equity review response plans in the state sector and limited evidence of positive outcomes. There is no transparency around addressing pay and employment equity issues in the private sector. Robust mechanisms, including legislation, are needed to progress pay and employment equity. This will require a broad political commitment and public consensus.

Sexual and family violence

New Zealand has had specific legislation dealing with family violence since 1995. Concerns about alarming rates of unreported sexual violence and a low rate of successful prosecution of reported crimes, however, prompted initiatives to improve community and official responses to violence.

There is an evident commitment from the Government to take the necessary actions, whether legal, policy or practice, to make New Zealand safer for women and children. The “It’s not OK” social marketing campaign, in particular, has wide public recognition. There is increased public awareness of the issue and political will to reduce the level of violence in the community, with the Government recently responding to the recommendations of the Taskforce for Action on Sexual Violence.

However, despite concerted efforts to tackle it, the level of violence against women in New Zealand remains high. It is estimated that violence affects one third to one half of all women over their lifetime.

Some of the factors that are inhibiting progress include: difficulties accessing programmes (for both victims and perpetrators of violence); difficulties for victims accessing legal aid; and lack of training in domestic violence for key groups, such as police, judges, lawyers and benefits officers. Other barriers include a lack of data to properly evaluate policies and the objectification of women in advertising and pornography.

There are also gaps in the availability and accessibility of appropriate services for Māori, Pacific people, ethnic communities, refugees, rural women, people with disabilities, men, and young people.

Representation

The participation rate of women in both the labour market and in tertiary education is high by international standards. There are a number of legislative and policy initiatives that support women’s participation in the workforce. They include 20 hours a week free early childhood education, paid parental leave, flexible work policies and legislation and legislative support for working mothers who are breastfeeding. These initiatives are precarious, however, with changes to the provision of early childhood education funding already announced. The availability of early childhood education is scarce in rural areas in particular, and parents who work non-standard hours also have difficulty accessing early childhood services.

Mixed member proportional representation has resulted in increased diversity in Parliament. One in three Members of Parliament are women. Women continue to be under-represented in senior management and governance roles in both the public and private sector. Increased accountability for the good employer provisions of state sector legislation would be helpful.

Paid parental leave and early childhood education

Most women have access to paid parental leave, but there continues to be debate about eligibility criteria and also the duration and level of paid leave. Current eligibility criteria can exclude casual and seasonal workers and multiple job holders. Fathers are currently entitled to only two weeks unpaid leave. Extending paid parental leave to men in their own right would provide greater choice for parents, as well as supporting gender equality.

New Zealand’s current paid parental leave provisions rate near the bottom of an international comparison – of 25 OECD countries, New Zealand came 23rd. This was based on the duration of leave and the percentage of salary offered.

The right to breastfeed in public places and in the workplace is established in New Zealand law. This is a positive step, but provision for paid breastfeeding breaks is needed to bring New Zealand’s legislation in line with international standards.

[1] Preamble to CEDAW 1981.

Rights of sexual and gender minorities
Tikanga taera me te tangata taitini


"People of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights."

The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, Article 1


Priority area for action - Mahi tuatahi
Legal equalityCompleting the legislative steps required for formal legal equality, including rights to found and form a family, regardless of sexual orientation or gender identity.


Introduction - Tīmatatanga

All people, regardless of their sexual orientation or gender identity, have the same rights and freedoms. All sexual and gender minorities in New Zealand have these human rights. This includes people who identify as gay, lesbian, bisexual, takataapui, intersex, transgender, whakawāhine, tangata ira tāne, fa’afafine or fakaleiti.


Human rights in relation to sexual orientation or gender identity include, for example, the rights to:

These rights provide a framework of equality, security and participation. This chapter uses this framework to assess the status of human rights in relation to sexual orientation and gender identity for sexual and gender minorities in New Zealand.

Language and terminology are particularly important to sexual and gender minorities. The words people choose to describe themselves can both affirm and challenge constructs of identity. At the same time, the absence of inclusive language can cause barriers to participation and reinforce exclusion. The broad terms used to describe groups – for example, children and young people, people with disabilities or people from diverse ethnic groups – can also obscure the richness of diversity that lies within those groups.

Current status - Āhua o nāianei

At the international level, there has been progress, but affirmation of human rights relating to sexual orientation and gender identity continues to be contested. Equal participation and visibility of civil society groups is also resisted by some States. Increased challenges create the risk of retreat from agreed international human rights standards. Further work is needed to ensure that progress continues and participation and visibility are assured.

With respect to the rights of sexual and gender minorities, New Zealand is taking progressive steps towards meeting or has surpassed human rights standards in a number of key areas, namely:

There are areas where New Zealand is falling short of international human rights standards around the rights of sexual and gender minorities, namely:

Challenges also remain in relation to implementation and practice, including promoting public understanding of sexual and gender diversity, combating discrimination and harassment, and improving safety.

Areas for action - Mahi

Legal equality

Completing the legislative steps required for formal legal equality, including rights to found and form a family, regardless of sexual orientation or gender identity.

Data collection

Continuing to work with Statistics New Zealand, and commencing working with other producers of official statistics, to address the need for sexual orientation statistics through the census and population-based surveys.

UN reporting

Addressing human rights in relation to sexual orientation and gender identity in all New Zealand country reports to United Nations human rights treaty bodies and in other human rights reports.

Rights of trans people

Continuing to improve the human rights of trans people through implementation of the Transgender Inquiry recommendations, with particular focus on legal recognition, the rights to education and health and explicit protection under the Human Rights Act.

Gender-based violence

Taking steps to reduce gender-based violence.

Children and young people

Improving the safety of same-sex and both-sex attracted, trans and intersex children and young people in schools.

Intersex people

Building understanding about the specific human rights issues faced by intersex people.

Health needs of intersex people

Using a human rights-based framework to develop best practice for meeting the health needs of intersex people, with a particular focus on infants with intersex medical conditions.

Background to areas for action - Tāhuhu kōrero ki ngā mahi

Legal equality

In just over 25 years, New Zealand’s domestic laws have progressed from decriminalisation of homosexuality, based on a conscience vote in Parliament, to positive protection from discrimination on the grounds of sexual orientation. In the last five years, this has moved to include many aspects of partnership recognition. The legislative framework of human rights in relation to gender identity is less comprehensive.

Remaining areas where heterosexual people have different legal rights from sexual minorities relate primarily to family life. Same-sex marriage is not permitted in New Zealand and adoption law has been interpreted as enabling only married couples to jointly adopt. Trans people, whatever their sexual orientation, face restrictions on their right to marry and, therefore, their right to jointly adopt. Prohibitions on same-sex marriage mean a trans person who was already married prior to transitioning is required to dissolve that marriage if they wish to change the sex details on their birth certificate. In addition, a trans person who has been able to change the sex details on their birth certificate does not automatically have the legal right to marry as that sex.

New Zealand has made some limited progress in affirming the legal rights of trans and intersex people.

Data collection

Visibility is a particular issue for sexual and gender minorities in relation to data collection. Population estimates and other data are needed to monitor human rights status and quantify the economic, social, cultural and other impacts of policy and legislation.

However, no official data is collected about sexual minorities. This is of particular concern to those civil society groups and individuals who have lobbied for data collection unsuccessfully for many years. The absence of a question on sexual orientation in the official census, for example, is viewed by many as discriminatory.

UN reporting

United Nations treaty bodies have expressly referred to the rights of sexual minorities, and are more regularly referring to sexual orientation, gender identity, trans people and sexual and reproductive rights in Concluding Observations on States parties’ reports.

New Zealand has reported on the human rights situation of sexual and gender minorities in its United Nations treaty body reports. For example, the New Zealand CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) report notes the situation of lesbians in New Zealand. The Universal Periodic Review included a section on equality and non-discrimination, referring explicitly to sexual orientation and the situation of trans people.

Rights of trans people

In January 2008, the Commission released its report, Inquiry into Discrimination Experienced by Transgender People: To Be Who I am – Kia noho au ki tōku anō ao.  The Inquiry focused on three areas – experiences of discrimination, access to health services and barriers to legal recognition of gender status. The final report documented obstacles to dignity, equality and security and how discrimination impacted on all aspects of trans people’s lives.

Priority areas where considerably more work is needed to implement the Transgender Inquiry recommendations include:

Gender-based violence

Security and safety remain important issues for sexual and gender minorities, particularly trans and intersex people. A significant development in the last decade has been a deeper understanding of gender-based violence, namely violence based on actual or perceived sex, gender, gender identity or sexual orientation.

Children and young people

Safety and security is a particular issue for young people, especially those who identify as queer or as part of other sexual minorities. A 2007 survey revealed higher levels of bullying, depression and suicide attempts amongst same-sex and both-sex attracted students in comparison to opposite-sex attracted students. There is limited New Zealand research about the level of harassment and bullying of trans and intersex students. However, overseas studies and submissions to the Transgender Inquiry suggest levels are at least as high as those for same-sex and both-sex attracted students.

Intersex people and their health needs

The Transgender Inquiry received submissions from intersex people that raised significant human rights issues. Priority concerns were about medical procedures performed on children and young people with intersex conditions. In addition, limited access to medical records compounded the invisibility, secrecy and shame that many intersex people experienced. Subsequently, in 2009 and 2010, the Commission held two intersex round tables. These brought together intersex people, their families, health professionals, government agencies and other interested parties to discuss issues raised in the Transgender Inquiry and international developments. These have highlighted initial progress and further improvements required to promote, protect and fulfil the human rights of intersex people in New Zealand.


Rights of migrants
Tika o ngā tangata kaiheke

"We respect and protect the human rights of migrants and their families."

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Article 7 (edited)

Priority area for action - Mahi tuatahi

Employment

Addressing barriers to the employment of migrants, and ensuring the rights of temporary, seasonal and rural workers and those on work-to-residence visas are respected.

Introduction - Tīmatatanga

More people live outside their country of birth today than at any other time in history. While people have a right to leave a country, there is no automatic right to enter or reside in another country. Governments may exercise their national sovereignty to decide who to admit into their territory. Once an individual has entered a country, the national government is responsible for the protection of his or her rights. All persons, regardless of their nationality, race, legal or other status, are entitled to fundamental human rights and basic labour protections.

Three fundamental notions characterise the protections in existing international law for migrants and their families:

Current status - Āhua o nāianei

Migrants in New Zealand represent a rich diversity of people and backgrounds. They come to New Zealand for a variety of reasons including work, marriage, family, and education. Most adjust well to their new home. In 2010, the Department of Labour’s Longitudinal Immigration Survey showed new migrants adjusted well and more than 90 per cent were very happy with life and settled after 18 months of living in New Zealand.

However, for some migrants settlement continues to be a difficult process. As strangers to a new society, they may be unfamiliar with the national language, laws and practice and thus be less able than others to know and assert their rights. They may face discrimination and be subjected to unequal treatment and unequal opportunities at work and elsewhere.

Since 2004, there has been an increased emphasis on successful settlement and providing more support to migrants through central government, local government and the NGO and voluntary sector.

The Government has taken a number of positive steps to support migrant settlement, including:

The adoption of the Recognised Seasonal Employers Scheme (RSE) in 2007 and the introduction of the Supplementary Seasonal Employment (SSE) permit in 2009 provide workers from the Pacific with access to the New Zealand labour market and aim to better protect the rights of these workers.

The rights of migrants are generally well protected under New Zealand law and policy. Employment laws protect the rights of migrant workers and there are effective enforcement mechanisms.

Nevertheless, there continue to be a number of significant challenges facing migrants, such as discrimination and harassment, particularly against international students and Asians in New Zealand; barriers to employment: employment conditions, particularly for some temporary migrant workers; access to education; access to social services; and access to justice.

Areas for action - Mahi

Public awareness

Promoting public awareness of the economic, social and cultural contributions made by migrants.

Employment

Addressing barriers to the employment of migrants, and ensuring the rights of temporary, seasonal and rural workers and those on work to residence visas are respected.

Discrimination

Countering the relatively high incidence of discrimination and harassment experienced by international students and Asian migrants.

Education

Increasing access to English for Speakers of Other Languages and bridging programmes for migrants.

Children

Protecting the rights of migrant children - both those who migrate to New Zealand with their families and those coming to New Zealand as international students.

Immigration Act

Monitoring the implementation of the new Immigration Act 2009.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Public awareness

Migrants, refugees and their families need to have a sense of place and belonging in New Zealand, while maintaining their cultural identities, which contribute to New Zealand’s social and cultural vibrancy. This relies on public understanding and acceptance of the value of cultural diversity in general, and of the value migrants in particular bring to New Zealand society.

The New Zealand Settlement Strategy (NZSS) seeks to promote a society in which the local and national integration of newcomers is supported by responsive services, a welcoming environment and a shared respect for diversity by, amongst other things, promoting an understanding and acceptance of cultural diversity. However, migrants continue to experience discrimination.

Employment

There have been a number of initiatives by employer and professional groups and education providers to assist migrants to overcome barriers to employment. However, many highly skilled migrants (in particular those from non-English speaking backgrounds) continue to face serious problems finding a job because their qualifications are not recognised in New Zealand. Other barriers to employment include: language, dress codes, adapting to different work cultures, and employers’ reluctance to employ someone from a different cultural background.

Complaints to the Human Rights Commission since 2005 suggest some seasonal workers continue to face discrimination, difficult work conditions (which sometimes fall below minimum standards) and difficulty accessing social services. Temporary workers are also often unable to bring their families to New Zealand.

Although steps have been taken to address some early issues with the RSE scheme, concerns identified in the past recur in a 2010 evaluation report. These include: accommodation, particularly cost and overcrowding; lack of awareness and understanding of rights and obligations; fears of adverse consequences of complaining; and unfavourable reactions from the community.

As a result of changes made to immigration policy in 2009, migrant workers on supplementary seasonal employment are not eligible to support their partner and children for permits under visitor, student or work policies.

Discrimination

While discrimination on the grounds of race, colour, ethnic and national origins is unlawful in a range of public contexts under the Human Rights Act 1993, migrants report they continue to experience it. Statistics New Zealand’s 2008 General Social Survey found 10 per cent of New Zealanders experience discrimination. The most common grounds were nationality, race, ethnic group or skin colour. Asians experienced the most discrimination.

Education

In 2009, the Government announced funding cuts that will adversely impact on migrants being able to access educational services. For example, the Migrant Study Grant has been abolished from 2010. This allowed courses such as the Workplace Communication for Skilled Migrants programme to operate and opened tertiary study opportunities to migrants. Funding for adult community education classes, which provide a building block for people who would not otherwise be engaged in education, has been dramatically reduced. This will create a significant barrier to migrants accessing tertiary education services.

For non-English speaking migrants, the most immediate educational need is English for Speakers of Other Languages (ESOL). The Government provides funding for some ESOL programmes.

Children

Some children and young people migrate to New Zealand with their families and some come independently as international students. Child migrants (defined as those under 18 years of age) are covered by the Convention on the Rights of the Child and are entitled to the protection, provision and participation rights it confers.

Until recently, children of migrants whose parents’ immigration status was unclear, were unable to receive or continue to receive early childhood, primary or secondary education while their status was being determined. This was changed in the Immigration Act 2009. However, certain practical barriers remain, such as the fear of being identified as being unlawfully in New Zealand.

Immigration Act

The Immigration Act 2009 introduces a universal visa system that aims to maintain flexibility in managing people’s travel to and stay in New Zealand. The Act also provides alternatives and safeguards around the use of detention. While these are positive aspects, the Act also gives rise to a number of human rights concerns, which will require close monitoring. These include:

Rights of refugees
Tikanga o ngā tāngata rerenga

"Everyone has the right to go to another country and ask for protection if they are being mistreated or are in danger."

Universal Declaration of Human Rights, Article 14

Priority area for action - Mahi tuatahi

Comprehensive strategy

Completing a comprehensive whole of government resettlement strategy for convention refugees, quota refugees and family reunification.

Introduction - Tīmatatanga

The 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention) defines a refugee as:

[A person who] … owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

(Article 1A(2))

Refugees fall into a number of categories – quota or mandated refugees, spontaneous refugees or asylum seekers, and family members of refugees resident in New Zealand.

Spontaneous refugees are people who claim refugee status on arriving at the border or after entering New Zealand. Quota refugees are recognised as refugees by the United Nations High Commissioner for Refugees (UNHCR). They are chosen for resettlement in New Zealand, while still overseas, by the New Zealand government.

A small number of people are also accepted annually under the Refugee Family Support category. In addition, former refugees have the same rights as other residents and citizens to access places under the general immigration residence policy, such as the Family Sponsored Stream. These people are not technically refugees, but rather relatives of refugees who have already settled in New Zealand. The cost of their resettlement is met by their families and/or sponsors.

Those fleeing environmental disasters are unable to claim refugee status under the Convention because they do not meet the definition of refugee. Nevertheless, these people still need international protection.

Current status - Āhua o nāianei

New Zealand is one of only 21 countries that accept an annual quota of refugees for resettlement. It is one of 10 countries considered by the United Nations High Commissioner for Refugees as core resettlement countries. New Zealand accepts 750 refugees a year under its quota programme. The number of quota refugees accepted annually has remained static since 1987. At the same time, there has been a dramatic drop in the number of asylum seekers. This is due, at least in part, to the advance passenger screening process.

Quota refugees receive significant and ongoing settlement support. By contrast, Convention refugees (asylum seekers) and family members of refugee members resident in New Zealand receive only a minimal level of advice. Non-governmental organisations and volunteers make a major contribution to the successful settlement of refugees and provide essential support to asylum seekers.

Since 2004, two major developments have impacted on the rights of refugees and asylum seekers in New Zealand: development of the New Zealand Settlement Strategy and the related national and regional action plans and enactment of the Immigration Act 2009.

The Immigration Act 2009 aims to manage immigration in a way that balances the national interest and the rights of individuals. It seeks to strengthen border control while ensuring compliance with immigration-related international obligations, particularly those under the Refugee Convention, Convention Against Torture and the International Covenant on Civil and Political Rights.

Refugee communities are asserting a stronger voice, through capacity building programmes, regional and national forums, and networks. Refugee communities are increasingly providing settlement support in their own right. Recognising that settlement is more successful and sustainable where refugee communities are involved in the resettlement process, there has recently been an increased involvement of communities in government mandated resettlement activities.

However, a number of challenges continue to face refugees settling in New Zealand. These include access to education, respect for different values (including dress codes); access to health; housing; barriers to employment; and family reunification. The economic recession has further intensified difficulties in some areas, with funding cuts to some programmes.

Areas for action - Mahi

Comprehensive strategy 

Completing a comprehensive whole of government resettlement strategy for convention refugees, quota refugees and family reunification members, with agreed standards by which to measure the effectiveness of refugee resettlement.

Equal support

Providing asylum seekers and family reunification refugees with similar support and conditions to those provided to quota refugees.

Participation

Developing a partnership model with government in order to enable refugee communities to fully engage in the development of policy and service delivery.

Family reunification

Undertaking a comprehensive review of the Family Reunification Policy.

Immigration Act

Monitoring the implementation of the new Immigration Act 2009.

Background to areas for action - Tāhuhu kōrero ki ngā mahi

Comprehensive strategy

Refugees have called for a single vision and policy for refugee resettlement, with national goals and standards by which to measure success. They have also called for services to be delivered on a whole of government basis in a nationally consistent manner; and for government and non-government agencies to fully include refugees in their decision-making processes and service delivery.

Equal support

Convention refugees (asylum seekers) and family members of refugees resident in New Zealand do not receive the same level of settlement support as quota refugees. A minimal level of advice and assistance is provided through Settlement Support New Zealand. Immigration NZ has produced a settlement booklet, available in several languages, especially designed for Convention refugees. By contrast, quota refugees receive significant and ongoing settlement support, including: volunteers assigned to families for the first year of settlement; access to a Resettlement Grant; an orientation programme; and automatic eligibility for Housing New Zealand housing.

Participation

Refugee communities are increasingly providing settlement support in their own right, including, for example, social work and home-work groups. There has recently been an increased involvement of communities in government mandated resettlement activities. In recent years, the Department of Labour has supported a number of initiatives to “strengthen refugee voices” to provide opportunities for refugees to offer their perspectives on government services. At a national conference on refugee health and well-being in 2009, participants emphasised that refugees need to be at the centre of policy development and service delivery.

Family reunification

Family reunification is a fundamental principle of refugee protection. As the Department of Labour has noted, “family reunification has the potential to improve resettlement outcomes and reduce adjustment costs for refugees by reducing the emotional and financial strain that results from being apart from family members.”[1]

Family reunification continues to be a major concern for refugees in New Zealand. In the past 10 years there have been decreasing avenues available for refugee family reunification, with both the removal of the humanitarian category and stricter requirements under general immigration policy, such as job offer requirements. In addition, continued insistence on a narrow definition of “family” is artificial and precludes a number of refugees from being reunified with their family. The reality of wider family interdependence needs to be acknowledged.

Immigration Act

The Immigration Act 2009 incorporated specific references to obligations under the International Covenant on Civil and Political Rights, the Refugee Convention and the Convention against Torture. The Act also significantly restricts the situations under which asylum seekers and protected persons may be detained. While these are positive aspects of the Act, there are also a number of human rights concerns, which will require close monitoring. These include:


[1] Department of Labour (2004), Refugee Voices, A journey towards resettlement,  (Wellington: DOL) pp 145-146

Rights of people who are detained
Tikanga o ngā tāngata mauhere


"No one can be tortured or treated cruelly."

Universal Declaration of Human Rights, Article 5

Priority area for action - Mahi tuatahi

Māori imprisonment

Committing to specific targets and timelines for reducing the disproportionate number of Māori in prison.

Introduction - Tīmatatanga

Detention occurs where a person is not free to leave a particular place. The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), the Convention on the Rights of the Child (UNCROC), the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention relating to the Status of Refugees (Convention on Refugees) all make provisions for the rights of people in detention.

These rights include:

Current status - Āhua o nāianei

In New Zealand, people may be detained in a range of contexts, including prisons, police custody, military detention, mental health facilities, secure care facilities for people with intellectual disabilities, or children and young persons’ residences.

Since 2004, there have been some notable developments that provide improved protections for the human rights of people in detention. Ratification and implementation of the preventive monitoring system under the Optional Protocol to the Convention against Torture provides further national and international scrutiny of places of detention. Establishment of the post of Inspector of Service Penal Establishments to monitor military detention facilities has been a significant development.

The legal framework has been further strengthened with the enactment of the Corrections Act and Regulations. There have been considerable advances in the increased provision of training and employment, rehabilitation and drug and alcohol treatment in prisons. Other positive initiatives that have been developed in this period – such as the Mothers with Babies legislation and a mental health screening tool – will soon be fully implemented.

People in detention often come from vulnerable sectors of society. It is incumbent upon the State to not only ensure minimum standards are met but also take additional steps to address the disparities in the enjoyment of rights, such as the right to health, education and work.

Other issues include:

Protections for those detained in police custody have been strengthened. There have also been significant improvements in terms of reducing detention of young people in police cells. However, this is an issue that requires continued attention and monitoring.

There have been improvements in reporting and transparency regarding health and disability detention, including closer monitoring and regular publication of data on the use of electroconvulsive therapy (ECT) and seclusion. There has been a decrease in the incidence of seclusion, although there are still indications that a very few patients are secluded for lengthy periods. There are also some concerns that safeguards around the use of ECT could be further strengthened.

The Children, Young Persons and Their Families Act has been successful, to a large degree, in steering children and young people away from custody and the criminal justice system. There is evidence that early intervention, wrap-around services and restorative approaches are more likely to effectively address offending by young people and should remain the focus of New Zealand’s youth justice system.

Areas for action - Mahi

Rate of imprisonment

Committing to a reduction in the rate of imprisonment and addressing the drivers of crime.

Māori imprisonment

Committing to specific targets and timelines for reducing the disproportionate number of Māori in prison. There also needs to be a systematic, comprehensive, long-term approach to addressing entrenched inequalities with explicit targets and clear indicators of progress made.

Young people

Increasing the availability of and access to appropriate mental health, drug and alcohol treatment and services for children and young people.

Legislation

Ensuring international human rights standards are adequately reflected in mental health legislation, and resolving uncertainty around the criteria for continued detention under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Background to the areas for action - Tāhuhu kōrero ki ngā mahi

Rate of imprisonment

New Zealand has an imprisonment rate that is high by international standards. Ongoing growth in the imprisonment rate is a significant and overarching human rights issue, since risks to human rights are raised in environments where there is overcrowding, stretched resources and services, or where staff are overloaded.

The continued growth of the prison population has potential to undermine advances that have been made. There are several pieces of new legislation that make custody more probable.

The Drivers of Crime initiative signals a more holistic approach to trying to reduce offending. The need to reduce the rate of Māori imprisonment is recognised, and is a focus of Drivers of Crime and a number of initiatives.

Māori imprisonment

Māori form approximately 12.5 per cent of the general population aged 15 and over, but account for over half of the male prison population and around 60 per cent of the female prison population.

The over-representation of Māori within the prison system has been the subject of much international comment. The UN Human Rights Council, Committee Against Torture and the Committee on the Elimination of Racial Discrimination have each recommended that New Zealand focus its attention on combating over-representation and discrimination within the criminal justice system.

A range of initiatives aim to reduce the rate of Māori imprisonment. The Ministry of Justice has developed initiatives to reduce Māori offending, and the issue has been a focus of the Drivers of Crime initiative.

Young people

An ongoing issue has been the availability of appropriate facilities and treatment for young people.

Particular gaps have been identified in provision of mental health services, forensic, residential placements, and alcohol and drugs services for children and young people. Despite recent progress, there is a continued need to broaden the range of services and support available, and to reduce inequalities and improve access to services for Māori and Pacific peoples.

Legislation

While mental health legislation was developed to comply with human rights standards, there are some areas that require review to ensure that it fully reflects international standards. There are also issues to be resolved regarding the concept of capacity and in relation to the criteria for continued detention.