Human rights in New Zealand

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Human rights in New Zealand are addressed in the various documents which make up the constitution. Specifically, the two main laws which protect human rights are the New Zealand Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990.[1] In addition, New Zealand has also ratified numerous international United Nations treaties. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the Indigenous population.[2]

History[edit]

Universal suffrage for Māori men over 21 was granted in 1867, and extended to European males in 1879.[3] In 1893, New Zealand was the first self-governing nation to grant universal suffrage;[4] however, women were not eligible to stand for parliament until 1919.

A distinctive feature of New Zealand's electoral system is a form of special representation for Maori in parliament. Initially considered a temporary solution on its creation in 1867, this separate system has survived debate as to its appropriateness and effectiveness. Critics have described special representation as a form of apartheid.[3] In 1992, when the Royal Commission on the Electoral System recommended the abolishment of the separate system, strong representations from Maori organisations resulted in its survival.[5]

Human rights in New Zealand are addressed in the constitution. In addition, New Zealand has also ratified numerous international treaties as part of the United Nations. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the Indigenous population.[2]

In May 2009, for the first time New Zealand prepared a national Universal Periodic Review (UPR) at the United Nations Human Rights Council in Geneva, Switzerland.[6] During this peer review process many countries praised New Zealand's human rights record and identified that the perception of New Zealand as a comparatively fair and equal society is crucial to its international reputation. Areas where the nation was directed to make improvements include disparities experienced by Maori as demonstrated by key social and economic indicators and the extent of family violence and violence against women and children.[7]

International treaties[edit]

Having joined the United Nations in 1945, New Zealand has ratified seven of the nine core key human rights treaties, namely ICERD, ICCPR, ICESCR, CEDAW, CRC, CAT and CRPD.[8]

In 2009 New Zealand was seeking a position on the United Nations Human Rights Council. The bid was withdrawn in March of that year to allow a clear path for the United States to win the seat, after US President Barack Obama reversed his country's previous position that the council had lost its credibility. Then New Zealand Foreign Minister Murray McCully stated "We believe that US membership of the council will strengthen it and make it more effective... By any objective measure, membership of the council by the US is more likely to create positive changes more quickly than we could have hoped to achieve them."[9]

In May 2009, for the first time New Zealand prepared a national Universal Periodic Review (UPR) at the United Nations Human Rights Council in Geneva, Switzerland.[6] During this peer review process many countries praised New Zealand's human rights record and identified that the perception of New Zealand as a comparatively fair and equal society is crucial to its international reputation. Areas where the nation was directed to make improvements include disparities experienced by Māori as demonstrated by key social and economic indicators and the extent of family violence and violence against women and children.[7]

Treaty[8] Signed [nb 1] Ratified
Convention on the Elimination of All Forms of Racial Discrimination 25 Oct 1966 22 Nov 1972
International Covenant on Civil and Political Rights 12 Nov 1968 28 Dec 1978
CEDAW 17 Jul 1980 10 Jan 1985
Convention on the Rights of the Child[nb 2] 1 Oct 1990 6 Apr 1993

Legal system[edit]

The legal system takes the framework of a parliamentary representative democratic monarchy. In the absence of a single constitution, various legislative documents such as the Constitution Act 1986, Imperial Laws Application Act 1988 and New Zealand Bill of Rights Act 1990 have been implemented to cover such areas. Human rights in New Zealand have never been protected by any single constitutional document or legislation, and no single institution has been primarily responsible for enforcement. Because New Zealand's human rights obligations are not entrenched and are simply part of common law, Parliament can simply ignore them if it chooses. The Human Rights Commission has identified this constitutional arrangement as an area in need of action to identify opportunities for giving greater effect to human rights protections.[10]

The 2009 report by the U.S. Department of State noted that, "[t]he law provides for an independent judiciary, and the government generally respected judicial independence in practice".[2]

Civil liberties[edit]

Freedom of speech[edit]

The right to freedom of speech is not explicitly protected by common law in New Zealand but is encompassed in a wide range of doctrines aimed at protecting free speech.[11] An independent press, an effective judiciary, and a functioning democratic political system combine to ensure freedom of speech and of the press.[12] In particular, freedom of expression is preserved in section 14 of the New Zealand Bill of Rights Act 1990 (BORA) which states that:

“Everyone has the right to freedom of expression, including the right to seek, receive, and impart information and opinions of any kind in any form”.

This provision reflects the more detailed one in Article 19 of the ICCPR. The significance of this right and its importance to democracy has been emphasised by the New Zealand courts. It has been described as the primary right without which the rule of law cannot effectively operate.[13] The right is not only the cornerstone of democracy; it also guarantees the self-fulfilment of its members by advancing knowledge and revealing truth.[14] As such, the right has been given a wide interpretation. The Court of Appeal has said that section 14 is “as wide as human thought and imagination”.[15] Freedom of expression embraces free speech, a free press, transmission and receipt of ideas and information, freedom of expression in art, and the right to silence.[16] The right to freedom of expression also extends to the right to seek access to official records. This is provided for in the Official Information Act 1982.

Limitations[edit]

There are limitations on this right, as with all other rights contained in BORA.

“It would not be in society’s interests to allow freedom of expression to become a licence irresponsibly to ignore or discount other rights and freedoms”.[17]

Under article 19(3) ICCPR, freedom of expression can be limited in order to:

  • respect the rights and reputations of others; and
  • protect national security, public order, or public health and morals.

Jurisprudence under BORA closely follows these grounds.[18] Freedom of expression is restricted only so far as is necessary to protect a countervailing right or interest.[19] The Court of Appeal has held that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom to the least possible amount.[20] The right to freedom of expression may also be limited by societal values which are not in BORA, such as the right to privacy and the right to reputation.

Hate speech is prohibited in New Zealand under the Human Rights Act 1993 under sections 61 and 131. These sections give effect to article 20 ICCPR. These sections and their predecessors have rarely been used.[21] They require the consent of the Attorney-General to prosecute. Incitement to racial disharmony has been a criminal offence since the enactment of the Race Relations Act 1971. Complaints about racial disharmony often concern statements made publicly about Maori-Pakeha relations and immigration, and comments made by politicians or other public figures regarding minority communities.[21]

Freedom of the media[edit]

Freedom of the media is also recognised as an important democratic principle. New Zealand is ranked eighth on the Press Freedom Index 2010 and there tends to be strong legal, public and media comment where this right is infringed.[22] Section 68 of the Evidence Act 2006 provides a qualified form of privilege for journalists who wish to protect the identity of their sources. The Court of Appeal has also laid down guidelines for the police when searching media premises for law enforcement reasons, so that their sources remain protected.[23]

The Courts may order that publication of information be withheld in whole or part, in the interests of justice. Often this is to protect the right to a fair trial, to protect the interests of the parties, or to uphold public confidence in the integrity of the justice system. It is not uncommon for New Zealand Courts to suppress names and evidence in civil and criminal proceedings so as to protect the right to a fair trial.[24]

"The law of New Zealand must recognise that in cases where the commencement of criminal proceedings is highly likely the Court has inherent jurisdiction to prevent the risk of contempt of Court by granting an injunction. But the freedom of the press and other media is not to be interfered with lightly and it must be shown that there is a real likelihood of a publication of material that will seriously prejudice the fairness of the trial".[24]

The Broadcasting Act 1989 is a statute limiting the media’s right to freedom of expression. Broadcasters have a responsibility to maintain programme standards that are consistent with: the observation of good taste and decency, the maintenance of law and order, the privacy of the individual, the principle of balance when controversial issues of public importance are discussed, and approved code of broadcasting practice applying to programmes.[25] The Broadcasting Standards Authority is a Crown Entity that hears complaints from the public where codes of practice have been breached. Print news media are self-regulated through the Press Council.

Freedom of religion[edit]

Freedom of religion is addressed specifically in the New Zealand Bill of Rights Act 1990, and the government has generally respected this in practice.[2]

Political rights[edit]

New Zealand is a parliamentary democracy, and as such acquires rights generally associated with such a system. Democratic rights include electoral rights, the right for citizens to take part (directly or indirectly) in government, and the right to equal access to the public service. There is an associated duty of responsible citizenship, or being willing to play one’s part in public affairs and to respect the rights and freedoms of others. These rights give the ability to participate in both public and political life when considered together.[26]

Constitution[edit]

Political and democratic rights are purported to be upheld by the ‘unwritten’ Constitution of New Zealand. One of the many sources that make up the constitution is the New Zealand Bill of Rights Act 1990. This legislation was the first aspect of the New Zealand constitution to specially refer to the International Covenant on Civil and Political Rights (ICCPR) with the rights contained within. Together with the New Zealand Human Rights Act 1993, these two statutes make up a basis for Human Rights protection in New Zealand. They were not incorporated directly into the legal system, however many of the rights within the ICCPR were replicated in the Bill of Rights Act 1990. These include electoral rights under section 12, and freedom of association under section 17.[27] The Human Rights Act 1993 also concerns non-discrimination based on political opinion under section 21.[28]

There has been concern expressed that due to the nature of the New Zealand constitution, and the lack of full integration into the legal system, rights under the ICCPR are not sufficiently protected.[29] The Bill of Rights Act 1990 is not entrenched legislation, and this means that it can effectively be overturned by a simple majority in Parliament. A counter to this concern is that rights do exist in the New Zealand constitution regardless; however it is the finding of them that is the difficult part.

Electoral Rights[edit]

Electoral rights include the right to vote in Members of Parliament, and the right to run for the House of Representatives. This is done by way of a secret ballot, and there is universal suffrage, with voting rights given to both men and women of the age 18 and over who are New Zealand citizens or permanent residents.[29] Freedom of association allows people to join with other individuals into groups that express, promote, pursue and defend common interests collectively. The Electoral Act 1993 is also important because it is one of the few ‘constitutional’ documents to contain entrenched provisions. These maintain the rights to voting and the size of the electorates which represent 'the people'. In the New Zealand context, entrenching provisions is one of the most effective ways to protect rights, as there is no possibility of total protection due to the doctrine of Parliamentary Sovereignty. However entrenching provisions would appear to indicate intent to protect rights. Section 6 of the Bill of Rights Act provides for judicial interpretation in favour of right-protecting interests, which allows judges to interpret around provisions in other legislation that may appear to impede human rights.[29]

This in itself had opposition, with arguments that allowing such a provision to exist undermines the doctrine of Parliamentary Sovereignty and impinged on the political rights of citizens as it allowed un-elected and non-representative judges to interpret rights somewhat at their discretion.[29] The universality of rights under the Universal Declaration of Human Rights would then be threatened also under this critique, as those who could afford good lawyers would then be at a greater advantage. Whether this is true in practice has not been proven, however it was one of the biggest points of opposition to the Bill of Rights Act prior to its inception.[29]

The New Zealand context[edit]

The ICCPR also contains statements on all peoples having a right to self-determination. Part of this right to self-determination is the right to determine political status freely. International human rights standards recognise that democratic and political rights require the protection of a range of other rights and freedoms, including the right to justice, freedom of expression, the right to peaceful assembly and freedom of association contained in the ICCPR. They must also be enjoyed without discrimination. This is stated in the ICCPR (as well as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Elimination of Racial Discrimination (CERD). Both CEDAW and CERD provide with specificity that the State should take steps to ensure the equal representation and participation of women, and of all ethnic and racial groups, in political processes and institutions (Article 7 of CEDAW and Article 5c of CERD).[26]

New Zealand portrays a system by which these political rights are maintained. Equal possibility for representation exists for any citizen, regardless of gender or race. In this respect, the democratic rights standard under the ICCPR (and other UN conventions) is fulfilled with women and minority groups being able to vote, and be elected to Parliament. For example, New Zealand has female Members of Parliament, as well as those in the Maori, Pacific Islander, Asian, homosexual and Muslim minorities. Maori political rights are further protected by giving Maori people the option to be on the General or Maori electoral roll, and by having reserved seats in the House of Representatives. This formula in turn projects the number of Maori electorates, General electorates and thus party list seats under the Mixed member proportional representation electoral system.

Citizens are also given a further ability to participate in the system and exercise some democratic rights by way of ‘citizen initiated referenda’(or citizen initiative). However these are not binding on Parliament and as such do not necessarily have a large degree of influence. It does however provide for assistance on public opinion for policy makers, and results can be taken into consideration when formulating Bills at various stages.[26] Political and democratic rights are also protected under the Treaty of Waitangi, one of New Zealand's founding documents and a source of law under the unwritten constitution. Article 1 of the Treaty infers the right to govern in New Zealand being the basis for the Westminster system of government. The rights of Maori to govern their own affairs where necessary is inferred by Article 2, and the extent to which all New Zealanders are proportionately represented in the institutions of the State, and which New Zealanders participate in political processes such as voting is covered by Article 3.[26]

Framework for Political Rights protection[edit]

Human rights and democracy are internationally recognised as interdependent and provide a framework for assessing the extent to which democratic rights are respected in law and practice.[30] According to this framework, there are two key democratic principles. The principle of popular control is the right to a controlling influence over public decisions and decision-makers. The principle of political equality is the right to be treated with equal respect and as of equal worth in the context of such decisions. Recognition of the above principles requires a framework for guaranteed citizens' rights, a system of representative and accountable political institutions subject to popular authorisation, and active channeling of popular opinion and engagement with government by the people.[30] Under this model, New Zealand recognises the political rights of its citizens in both law and practice. It does so by way of the Human Rights Commission, which provides a framework within the legal and political system; the ability to communicate and participate in the political system, and processes such as judicial review and complaints to the Office of the Ombudsman hold government and governmental departments accountable where necessary in order to maintain political rights.

Indigenous peoples[edit]

There are concerns regarding inequality between Māori and other ethnic groups, in terms of the disproportionate numbers of Māori people in the penitentiary system and on welfare support.[2] The UN Committee on the Elimination of Racial Discrimination highlighted issues regarding the government handling of Māori land claims, suggesting that amendments should be made to the Treaty of Waitangi and the New Zealand Bill of Rights Act 1990.[2]

Māori population on average run greater risks of many negative economic and social outcomes. Over 50% of Māori live in areas in the three highest deprivation deciles, compared with 24% of the rest of the population.[31] Although Māori make up only 14% of the population, they make up almost 50% of the prison population.[32] Other issues include higher unemployment-rates than the general population in New Zealand [33] There are also issues regarding health, including higher levels of alcohol and drug abuse, smoking and obesity. Less frequent use of healthcare services mean that late diagnosis and treatment intervention lead to higher levels of morbidity and mortality in many manageable conditions, such as cervical cancer[34] diabetes[35] per head of population than Pākehā (non-Māori)[36] Māori also have considerably lower life expectancies compared to non-Māori. In 2005-2007, at birth Māori male life expectancy was 70.4 years versus 79 years for non-Māori males (a difference of 8.6 years), while the life expectancy for Māori females was 75.1 years versus 83 years for non-Māori females (a difference of 7.9 years).[37]

Others have voiced concern for the area of 'linguistic human rights', due to the degree of prejudice against the use of Māori language.[38]

In 2010, Maori Affairs Minister Pita Sharples announced that the New Zealand Government would now support the Declaration on the Rights of Indigenous Peoples.[39]

Refugees[edit]

New Zealand was a signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 protocol.[2] In 2009, the government proposed an immigration bill which had provisions for passenger screening. In addition, the bill would permit the withholding of reasons for the denial of entry, and would deny the applicant access to judicial review. Such developments caused concern that the bill could lead to the possibility for prolonged detention.[40]

Human Rights Commission[edit]

The primary watchdog for human rights in New Zealand is the Human Rights Commission. Its stated mission is to work "for a fair, safe and just society, where diversity is valued, human rights are respected, and everyone is able to live free from prejudice and unlawful discrimination."[41] The body is a member of Asia Pacific Forum of National Human Rights Institutions and of the International Coordinating Committee of national human rights institutions.

In 2010 the Commission conducted a publicly available review of human rights in New Zealand in order to both identify the areas in which New Zealand does well, and where it could do better to combat persistent social problems. The 'report card' is an update of the Commissions' first report in 2004, and will lead its work for the next five years.[42] The report notes steady improvements in New Zealand's human rights record since 2004, but also "the fragility of some of the gains and areas where there has been deterioration." [10] In the report, the Commission identifies thirty priority areas for action on human rights in New Zealand under a number of sections: general; civil and political rights; economic, social and cultural rights; and rights of specific groups.[10]

Notes[edit]

  1. ^ Unless otherwise indicated, the declarations and reservations were made upon ratification, accession or succession
  2. ^ The instrument of ratification also specifies that "such ratification shall extend to Tokelau only upon notification to the Secretary-General of the United Nations of such extension

References[edit]

  1. ^ "What are human rights?". The Human Rights Commission. Retrieved 11 August 2011. 
  2. ^ a b c d e f g 2009 U.S Dept of State Human Rights Report: New Zealand
  3. ^ a b "Māori and the Vote". Elections.org.nz. Retrieved 10 August 2011. 
  4. ^ Byrnes, A, Connors, JF & L Bik (1997). Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation. Commonwealth Secretariat. p. 192. ISBN 9780850925159. 
  5. ^ "Change in the 20th century - Maori and the vote". NZ History online. Retrieved 14 April 2008. 
  6. ^ a b "NZs National Universal Periodic Review (UPR) Report". Human Rights Commission. Retrieved 7 May 2008. 
  7. ^ a b Wong, Gilbert. "NZ makes clear stand for human rights at UN". Human Rights Commission. Retrieved 11 May 11, 2009. 
  8. ^ a b , UN Treaty Collection: New Zealand
  9. ^ "New Zealand drops Human Rights Council bid, steps aside for US". EarthTimes. Retrieved 31 Mar 2009. 
  10. ^ a b c Human Rights in New Zealand 2010, Human Rights Commission 
  11. ^ Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis NZ Ltd, Wellington, 2005) at 305
  12. ^ http://www.state.gov/g/drl/rls/hrrpt/2004/41654.htm
  13. ^ R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at p125
  14. ^ A Bill of Rights for New Zealand: A White Paper (New Zealand Parliament House of Representatives) 1985. AJHR. 6 , p 79.
  15. ^ Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 para 15
  16. ^ http://www.hrc.co.nz/report/chapters/chapter08/expression01.html
  17. ^ Tipping J in Hosking v Runting [2005] 1 NZLR 1
  18. ^ Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis NZ Ltd, Wellington, 2005) at 323
  19. ^ Police v Geiringer [1990-1992] 1 NZBORR 331
  20. ^ Moonen v Film and Literature Board of Review [2000] 2 NZLR 9
  21. ^ a b http://www.hrc.co.nz/report/chapters/chapter08/expression02.html#hat
  22. ^ http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/Human_Rights_Review_2010_Full.pdf
  23. ^ TVNZ Ltd v Attorney-General [1995] 2 NZLR 641
  24. ^ a b Television New Zealand Ltd v Solicitor-General [1989] 1 NZLR 1 (CA) at 3
  25. ^ http://www.hrc.co.nz/report/chapters/chapter08/expression04.html#med
  26. ^ a b c d Human Rights Commission of New Zealand 'Human Rights in New Zealand today'
  27. ^ New Zealand Bill of Rights Act 1990
  28. ^ Human Rights Act 1993
  29. ^ a b c d e Elections New Zealand website 'Civil and political rights in New Zealand'
  30. ^ a b Beetham, D. (2002). Democracy and human rights: Contrast and convergence. Seminar on the Interdependence between Democracy and Human Rights, Conference papers. Geneva: Office of the High Commissioner for Human Rights
  31. ^ Maori Health Web Page: Socioeconomic Determinants of Health - Deprivation. Retrieved 12 June 2007.
  32. ^ "Over-representation of Maori in the criminal justice system". Department of Corrections. September 2007. p. 4. 
  33. ^ Department of Labour, NZ, Māori Labour Market Outlook
  34. ^ Raeburn, J & Rootman I (1998). People-centred Health Promotion. John Wiley and Sons. pp. 106–109. 
  35. ^ Diabetes in New Zealand - Models And Forecasts 1996 - 2011
  36. ^ "Cultural linkage: treating Maori with alcohol and drug problems in dedicated Maori treatment programs.". Department of Psychological Medicine, Christchurch School of Medicine, New Zealand. Retrieved 29 September 2010. 
  37. ^ "Social Report: 2010". Ministry of Social Development. Retrieved 12 August 2011. 
  38. ^ Skutnabb-Kangas, T, Phillipson, R & Rannut M (1995). Linguistic Human Rights: Overcoming Linguistic Discrimination. Walter de Gruyter. pp. 209–213. 
  39. ^ Tracy Watkins. "NZ does U-turn on rights charter". Stuff.co.nz. Retrieved 11 August 2011. 
  40. ^ "Human rights in New Zealand: Report 2009". Amnesty International. Retrieved 30 September 2010. 
  41. ^ "About the Human Rights Commission". Human Rights Commission. Retrieved 11 August 2011. 
  42. ^ "Human Rights in New Zealand 2010". Human Rights Commission. Retrieved 11 August 2011. 

External links[edit]