Human rights in Niue

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Niue is a country in the South Pacific Ocean with an estimated population of 1,190.[1] Since 1974, it has been self-governing in free association with New Zealand.[2] Niue controls its own internal affairs, while New Zealand retains responsibility for its defence and external relations[3] and is required to provide necessary economic and administrative assistance.[4]

Niue does not have a Bill of Rights guaranteeing fundamental rights or freedom from discrimination. Law relevant to human rights can be found in various pieces of ordinary legislation. Areas of concern include the rights of women, children, and persons who identify as lesbian, gay, bisexual or transgender (LGBT).

The Government of Niue

Legal framework[edit]

International obligations[edit]

During recent consultations, Niue developed Terms of Reference for a Human Rights Committee which will be responsible for examining the country's human rights obligations arising from international law.[5]

Niue is party to treaties signed and ratified by New Zealand prior to 1988,[6] including the following:[7][8]

In 1988, New Zealand submitted a Declaration to the United Nations, stating that treaty obligations it subsequently entered into were to no longer bind Niue.[9] Noting that it had become a member of the World Health Organization (WHO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Secretary-General recognised Niue's capacity to enter into international treaties in 1994.[10] The following year, Niue acceded to the Convention on the Rights of the Child (CRC).[11]

As a self-governing state, it is responsible for producing its own reports on measures adopted to give effect to international treaties.[12] Despite offers of assistance from New Zealand,[13] Niue has experienced difficulty in doing so due to its small population and a shortage of resources and expertise. Its initial report under the Convention on the Rights of the Child was due in 1998, but not submitted until 2010.

Niue is not subject to the Universal Periodic Review process as it is not a member state of the United Nations.[14]

Constitution[edit]

The Niue Constitution Act 1974 sets out provisions for Niue's self-government. The Constitution of Niue, contained in Schedules 1 (Niuean) and 2 (English), is supreme law.[15] It prescribes the powers and functions of the executive, legislative and judicial branches of Government. Aside from the right to vote, it does not provide for any fundamental rights.[16]

Previously, Article 31 of Schedule 2 set out special rules for proposed legislation which could impact upon human rights. This required the Chief Justice to be invited to comment on the legal, constitutional, and policy issues where a Bill or proposed amendment affected such matters as criminal procedure, definitions of criminal offences, marriage, the law of evidence, and extradition. This Article was repealed by the Constitution Amendment (No 1) Act 1992.

In 1991, a Committee considered the inclusion of specific human rights guarantees in the Constitution in the form of a Bill of Rights, but ultimately rejected this idea.[17]

Legislation applicable to Niue[edit]

Legislation that is in force in Niue today consists of:

  • New Zealand legislation that existed on Constitution Day (19 October 1974) which has not subsequently been repealed or amended by the Niue Assembly[18]
  • Legislation passed by the Niue Assembly in accordance with the Niue Constitution Act 1974[19]
  • New Zealand legislation passed after Constitution Day which is requested by the Niue Assembly to extend to Niue [20]

Core New Zealand human rights enactments, such as the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, do not apply in Niue.

Human rights issues[edit]

Right to life[edit]

The death penalty has been abolished in Niue.[21]

Electoral rights[edit]

The Niue Assembly has the power to make laws for the "peace, order and good government" of Niue.[22] It has twenty members, elected under a system of universal suffrage,[23] and a Speaker. Elections occur every three years.

A person is not qualified to be registered as an elector if he or she:

  • Does not meet residency requirements of section 12 of the Niue Assembly Act 1966,
  • Is of unsound mind,[24]
  • Is under the age of 18,[25] or
  • Has been convicted in Niue or any Commonwealth country of an offence punishable by death or imprisonment of one year or more, and has not received a pardon or undergone the sentence or punishment[26]

Access to justice[edit]

Issues with access to justice have arisen due to a shortage of persons with the relevant skills and knowledge. There is no system of legal aid,[27] and a survey carried out in 2011 found there were only six lawyers in Niue.[28] Niue is a member of the Pacific Judicial Development Programme, which aims to improve the operation of the justice system in the Pacific region by providing training and support.[29]

Freedom of religion[edit]

There are no legislative restrictions on religious belief or practice, however the Constitution does not guarantee freedom of religion, nor is there any legislation which prohibits discrimination on the grounds of religion. The majority of Niueans are Christian,[30][31] and some laws, such as bans on fishing[32] and exhibiting films [33] on Sundays, reflect this[how?].

Freedom of expression[edit]

While the Constitution does not expressly guarantee freedom of expression, there are few restrictions on what can be said or published in Niue. Inciting racial disharmony is an imprisonable offence.[34] Persons who make statements which constitute libel or slander are also liable to imprisonment.[35]

Labour law[edit]

The Government is the main employer in Niue.[36] Conditions of employment, entitlement to leave, and processes for promotions and disciplinary action in the public sector are laid down by the Public Service Regulations 2004. Retirement is compulsory for permanent employees in the public service upon reaching the age of 55.[37] There is no labour law for workers employed in the private sector.[38]

Racial discrimination[edit]

It is unlawful to refuse access to public places, vehicles and facilities,[39] provision of goods or services,[40] employment,[41] or access to land and housing[42] on the basis of colour, race, or ethnic or national origins. Persons who believe themselves to be aggrieved by these provisions are entitled to bring civil proceedings in court.[43] Agreements in relation to real property are void to the extent that they prohibit or restrict dealings by reason of the colour, race or ethnic origins of an individual or their family.[44] Persons who incite racial disharmony through the use of threatening or abusive words are liable to imprisonment.[45]

Women's rights[edit]

Although there is no law prohibiting discrimination on the grounds of sex or gender, Niue generally "offer[s] women equality under the law".[46] It is on track to meet its Millennium Development Goals of 2015 in relation to promoting gender equality and empowering women.[47] There have been no reports of maternal deaths since 1980,[48] gender parity has been achieved in primary and tertiary education,[49] and there is high participation of women in government.[50]

There are, however, areas of concern. Domestic violence is "pervasive"[51] and tends to be managed by families themselves rather the authorities.[52] There is presently no legislation which deals specifically with this issue,[53] although work is under way on a Family Protection Bill which is expected to provide measures for the punishment of perpetrators and the protection of victims of domestic violence.[54]

Marital rape is not a criminal offence in Niue. A man cannot be convicted of the rape or attempted rape of his wife unless a decree nisi of divorce, decree of nullity, judicial separation, or separation order was in place at the time of the act.[55] Sexual violence against girls is addressed in the Niue Act 1966, which provides that those who have or attempt sexual intercourse with a girl under 15 are liable to terms of imprisonment.[56] Despite this, sexual assault on minors has been reported as occurring “regularly”.[57] Cultural and societal beliefs have the effect of inhibiting the reporting of these offences. Where complaints are lodged, they are frequently subsequently withdrawn or dropped.[58] The introduction of a mandatory reporting obligation on figures of authority, and a “no-drop” policy ensuring cases are not closed prematurely[59] have been touted as possible solutions.

Due to a lack of reproductive health education[60] and the societal attitude that all children are "blessings and gifts from God",[61] teen pregnancy is common.[62] Abortion is not currently available in Niue,[63] and its legality is unclear. The Niue Act 1966 provides that it is is an offence to “unlawfully procure” or administer an abortion,[64] which suggests that some abortions may be lawful. In particular, the common law defence[65] of necessity could be applicable in the event of endangerment to a woman’s life or health.[66] This remains untested in Court.

It is an offence to be the keeper of a brothel in Niue,[67] while escort sex work is not illegal.[68] The minimum age of marriage for females in Niue is 15. The United Nations Committee on the Rights of the Child has recommended raising this to 18, to match the minimum age for males.[69]

LGBT rights[edit]

Same-sex relationships have been identified by Niue as an issue which “may be the subject of reform”[70] in the coming years.

Current Niue law does not make any specific reference to those who identify as lesbian, gay, bisexual or transgender. Same-sex marriage is not recognised[71] and there is no legislation prohibiting discrimination on the basis of sexual orientation or gender identity. Sexual activity between males is criminalised by the Niue Act 1966. Those who commit the offence of “buggery” are liable to imprisonment for 10 years,[72] while “indecent assault” between males carries a potential 5-year term of imprisonment.[73] Consent is no defence to either of these offences. There is no legislation relating to female same-sex sexual conduct.

There is no provision for a change of sex on official documents under the Births and Deaths Registration Regulations 1984.

Children's rights[edit]

The definition of a child varies greatly under Niue law. Individuals may sue and be sued in infancy, are entitled to drive at age 14, may purchase liquor at 18, and can be adopted up to age 21.[74] Those under 18 are prohibited from permanent employment in the public service,[75] however there is no minimum age to undertake other work. As Niue has no labour law for those employed in the private sector, children who take on employment outside of the public service have no legal protection from poor working conditions or exploitation.

Enrolment and attendance at a school is compulsory for children between the ages of 5 and 16.[76] All education provided by Government schools is free of charge.[77] It is the duty of parents to ensure their child of school age is enrolled and attends school, and failure to do so without excuse or exemption is an offence.[78] In 2011, the enrolment rate of primary and secondary school aged children was 100%.[79]

The use of corporal punishment at school is not expressly prohibited by law. Legislation relating to cruel treatment[80] and bodily harm[81] is not interpreted as outlawing corporal punishment.[82] Acceptance of corporal punishment in the home is "near universal".[83]

Rights of persons with disabilities[edit]

Legislation requires that children with physical or mental disabilities be educated at a "special school" or institution,[84] however Niue has no teachers with training in special needs education.[85] Also of concern is reference in the Niue Act 1966 to women and girls who are "idiots, imbeciles or of unsound mind", and the lower criminal sanction for those who sexually offend against such individuals.[86]

Niue adopted a National Policy on Disability in 2011.[87]

References[edit]

  1. ^ "CIA World Factbook: Niue". Retrieved 29 April 2014. 
  2. ^ ss 3-8 Niue Constitution Act 1974
  3. ^ s 3 Niue Constitution Act 1974
  4. ^ s7 Niue Constitution Act 1974
  5. ^ "Niue holds Consultation on Human Rights". Pacific Islands Forum Secretariat. Retrieved 30 April 2014. 
  6. ^ "New Zealand Ministry of Justice: Contemporary constitutional status of the homelands and modern relations with New Zealand". Retrieved 28 April 2014. 
  7. ^ New Zealand Law Commission. "Converging Currents: Custom and Human Rights in the Pacific". http://www.lawcom.govt.nz/sites/default/files/publications/2006/10/Publication_120_340_SP17.pdf. p. 272. 
  8. ^ Farran, Sue (2009). Human Rights in the South Pacific: Challenges and Changes. London; New York: Routledge-Cavendish. p. 61. ISBN 1844721094. 
  9. ^ Repertory of Practice of United Nations Organs Supplement No. 8, Volume VI , Article 102 (http://legal.un.org/repertory/art102/english/rep_supp8_vol6-art102_e_advance.pdf), pg 10
  10. ^ Repertory of Practice of United Nations Organs Supplement No. 8, Volume VI , Article 102 (http://legal.un.org/repertory/art102/english/rep_supp8_vol6-art102_e_advance.pdf), pg 10
  11. ^ New Zealand Law Commission. "Converging Currents: Custom and Human Rights in the Pacific". http://www.lawcom.govt.nz/sites/default/files/publications/2006/10/Publication_120_340_SP17.pdf. 
  12. ^ "The Status of Women in New Zealand: 2006 CEDAW Report". Retrieved 27 April 2014. 
  13. ^ "New Zealand's Response to Questions of the Committee on Economic, Social and Cultural Rights (2002)". Retrieved 28 April 2014. 
  14. ^ "Member States of the United Nations". Retrieved 28 April 2014. 
  15. ^ s 4 Niue Constitution Act 1974
  16. ^ New Zealand Law Commission. "Converging Currents: Custom and Human Rights in the Pacific". http://www.lawcom.govt.nz/sites/default/files/publications/2006/10/Publication_120_340_SP17.pdf. 
  17. ^ New Zealand Law Commission. "Converging Currents: Custom and Human Rights in the Pacific". http://www.lawcom.govt.nz/sites/default/files/publications/2006/10/Publication_120_340_SP17.pdf. p. 35. 
  18. ^ Article 71, Schedule 2, Niue Constitution Act 1974
  19. ^ Article 28, Schedule 2, Niue Constitution Act 1974
  20. ^ Article 36, Schedule 2, Niue Constitution Act 1974
  21. ^ "The Death Penalty in the Pacific Islands". Amnesty International. Retrieved 29 April 2014. 
  22. ^ Article 28, Schedule 2, Niue Constitution Act 1974
  23. ^ Part 16, Schedule 2, Niue Constitution Act 1972
  24. ^ s 12(1)(f) Niue Assembly Act 1966
  25. ^ s 12(1)(d) Niue Assembly Act 1966
  26. ^ s 12(1)(e) Niue Assembly Act 1966
  27. ^ "National Human Rights Institutions Pathways for Pacific States Pacific Human Rights Issues Series: 1". New Zealand Human Rights Commission. p. 22. Retrieved 29 April 2014. 
  28. ^ "Needs Evaluation Survey for South Pacific Lawyers' Association – Final Report". p. 14. Retrieved 28 April 2014. 
  29. ^ "Pacific Judicial Development Programme". Retrieved 28 April 2014. 
  30. ^ Niue Census of Population and Households 2011, Government of Niue. p. 46
  31. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 3. Retrieved 28 April 2014. 
  32. ^ s 13 Domestic Fishing Act 1995
  33. ^ s 15 Film and Public Entertainment Act 1979
  34. ^ s 19 Race Relations Act 1972
  35. ^ s 187 Niue Act 1966
  36. ^ Committee on the Rights of the Child: State party's report: CRC/C/NIU/1 (11 July 2011), para 94
  37. ^ Part 30 Public Service Regulations 2004
  38. ^ Committee on the Rights of the Child: State party's report: CRC/C/NIU/1 (11 July 2011), para 94
  39. ^ s 3 Race Relations Act 1972
  40. ^ s 4 Race Relations Act 1972
  41. ^ s 5 Race Relations Act 1972
  42. ^ s 6 Race Relations Act 1972
  43. ^ s 10 Race Relations Act 1972
  44. ^ s 33A Property Law Act 1952
  45. ^ s 19 Race Relations Act 1972
  46. ^ 2012 Pacific Regional Millennium Development Goals Tracking Report: Pacific Islands Forum Secretariat p. 102 (http://www.forumsec.org/resources/uploads/attachments/documents/MDG%20Track%20Rpt%20web%2020122.pdf)
  47. ^ 2012 Pacific Regional Millennium Development Goals Tracking Report: Pacific Islands Forum Secretariat (http://www.forumsec.org/resources/uploads/attachments/documents/MDG%20Track%20Rpt%20web%2020122.pdf)
  48. ^ 2012 Pacific Regional Millennium Development Goals Tracking Report: Pacific Islands Forum Secretariat, p. 103 (http://www.forumsec.org/resources/uploads/attachments/documents/MDG%20Track%20Rpt%20web%2020122.pdf)
  49. ^ 2012 Pacific Regional Millennium Development Goals Tracking Report: Pacific Islands Forum Secretariat, p. 102 (http://www.forumsec.org/resources/uploads/attachments/documents/MDG%20Track%20Rpt%20web%2020122.pdf)
  50. ^ 2012 Pacific Regional Millennium Development Goals Tracking Report: Pacific Islands Forum Secretariat, p. 102 (http://www.forumsec.org/resources/uploads/attachments/documents/MDG%20Track%20Rpt%20web%2020122.pdf)
  51. ^ Committee on the Rights of the Child: Concluding observations on the initial report of Niue: CRC/C/NIU/CO/1* (24 June 2013), para 36
  52. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 28. Retrieved 28 April 2014. 
  53. ^ "Briefing on Sexual and Gender-based Violence in the Pacific: Regional Overview and Call for Action". Retrieved 28 April 2014. 
  54. ^ Committee on the Rights of the Child: Written Replies of Niue: CRC/C/NIU/Q/1/Add.1 (13 January 2013), paras 36-39
  55. ^ s 162 Niue Act 1966
  56. ^ s 163 Niue Act 1966
  57. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 31. Retrieved 28 April 2014. 
  58. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 32. Retrieved 28 April 2014. 
  59. ^ "Niue: A Situation Analysis of Women, Children and Youth". pp. 44, 45. Retrieved 28 April 2014. 
  60. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 9. Retrieved 28 April 2014. 
  61. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 31. Retrieved 28 April 2014. 
  62. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 13. Retrieved 28 April 2014. 
  63. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 32. Retrieved 28 April 2014. 
  64. ^ ss 166-168 Niue Act 1966
  65. ^ s 238 Niue Act 1966
  66. ^ Abortion Policy in Niue: United Nations Department for Economic and Social Affairs (www.un.org/esa/population/publications/abortion/doc/niue.doc)
  67. ^ s 175 Niue Act 1966
  68. ^ Joint project of UNDP Pacific Centre, Regional Rights Resource Team SPC and UNAIDS. "HIV, Ethics and Human Rights". p. 8. Retrieved 20 April 2014. 
  69. ^ Committee on the Rights of the Child: Concluding observations on the initial report of Niue: CRC/C/NIU/CO/1* (24 June 2013), para 23
  70. ^ Committee on the Rights of the Child: Written Replies of Niue: CRC/C/NIU/Q/1/Add.1 (13 January 2013), paras 4, 5
  71. ^ Joint project of UNDP Pacific Centre, Regional Rights Resource Team SPC and UNAIDS. "HIV, Ethics and Human Rights". p. 15. Retrieved 20 April 2014. 
  72. ^ s 170 Niue Act 1986
  73. ^ s 171 Niue Act 1986
  74. ^ Committee on the Rights of the Child: State party's report: CRC/C/NIU/1 (11 July 2011), para 92
  75. ^ Part 24, Public Service Regulations 2004
  76. ^ s 24 Education Act 1989
  77. ^ s 19 Education Act 1989
  78. ^ ss 28, 30 Education Act 1989
  79. ^ Niue Census of Population and Households 2011, Government of Niue. p. 50
  80. ^ s157A Niue Act 1966
  81. ^ ss 151-153 Niue Act 1966
  82. ^ Committee on the Rights of the Child: Concluding observations on the initial report of Niue: CRC/C/NIU/CO/1* (24 June 2013), para 34
  83. ^ "Niue Pathways to the Prevention of Sexual Violence". School of Population Health, University of Auckland. p. 9. Retrieved 29 April 2014. 
  84. ^ s 27 Education Act 1989
  85. ^ "Niue: A Situation Analysis of Women, Children and Youth". p. 22. Retrieved 28 April 2014. 
  86. ^ s 165 Niue Act 1966
  87. ^ Committee on the Rights of the Child: Concluding observations on the initial report of Niue: CRC/C/NIU/CO/1* (24 June 2013), para 49

External links[edit]