McGregor, Judy; Bell, Sylvia; Wilson Margaret --- "Fault lines: Human rights in New Zealand" [2015] NZLFRRp 2

The New Zealand Law Foundation funded the three year research project and we are enormously grateful for their financial and moral support. We would like to thank the stakeholders who contributed to the research and to those experts who read individual chapters and provided feedback. We appreciate the work of Kyle Stutter of the New Zealand Human Rights Commission and Kirsty Whitby in the School of Social Sciences and Public Policy at AUT for money matters. Millie Wall patiently formatted the report and designed the cover. Heidi Jones and Anne-Marie Laure provided valuable research in the early stages of the project. Sir Geoffrey Palmer undertook the overall peer review and John Harvey proof read the report several times. Any errors of fact or grammatical imperfections are ours alone and will be corrected in web-based versions of the report.

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In his call for human rights to come down to earth, Richard Thompson Ford states that:1

Today we are in the midst of something new: not only a belief that all human beings have certain rights as a matter of theology or moral philosophy but also the belief that they have them as a matter of law and practical politics.

This three year research project evaluates whether New Zealand’s ratification of the six major international human rights treaties and engagement in the Universal Periodic Review process has increased the implementation of human rights in New Zealand. In other words what does the fact that New Zealand is a signatory to international human rights treaties and regularly reports to the United Nations on its progress in implementing them mean for ordinary New Zealanders? Has it improved their situation?

Through a systematic analysis of the State’s response to the standards in the treaties and its degree of receptivity to subsequent treaty body recommendations, the research assessed whether ratification has enhanced the human rights agenda in New Zealand. The six major international human rights treaties - the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of All Persons with Disabilities (CRPD) are examined. In addition the research includes the first assessment of New Zealand‘s involvement in the Universal Periodic Review (UPR) process and compares the first and second cycles.

The six major treaties and the UPR are broadly assessed both individually and collectively in relation to the following five areas.2

The researchers conducted a series of interviews with individuals who had participated in the treaty body processes. The interviewees included politicians with direct human rights treaty body experience and a number of domestic and international experts with legal and constitutional expertise. The data was evaluated to analyse the impact of ratification of the international human rights treaties on New Zealand’s progress in fulfilling its obligations.

1 Richard Thompson Ford, (2011) Universal Rights Down to Earth. Amnesty International Global Ethics Series, New York, W.W. Norton & Co.

2 The assessment differs in each treaty as a result of its history and progress in implementing it.

The research makes a unique contribution to scholarship on the impact of human rights because it focuses on implementation at a domestic level;3 it does not focus on one treaty but examines six of the major treaties; it encapsulates both the views and perceptions of prominent stakeholders as well as findings and voices of researchers; and it uses both qualitative and quantitative evaluation methodologies where appropriate. In conclusion, the research advances a series of recommendations as an opportunity for political, legislative and social change to further the human rights agenda.

Research on human rights has particular salience for New Zealanders because of the role that New Zealand played in the United Nations Conference on International Organisation in San Francisco in 1945 and the development and the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. Although not as well-known as its early adoption of women’s suffrage, the role New Zealand played in the development of the UDHR marked the start of the nation’s perception of itself as a human rights leader. More than 65 years later, there is still a belief (expressed in New Zealand’s opening of the National Report to the second cycle of UPR in 2014) that, “New Zealand has a proud tradition of promoting and protecting human rights at home and overseas” – a role that was reinforced by the part it played in the development of the CRPD

The question that this research asks is, how good are we in practice? In historian Samuel Moyn’s view human rights implies an agenda for improving the world in which the dignity and rights of each individual will enjoy secure international protection.4

Human rights in this sense have come to define the most elevated aspirations of both social movements and political entities- state and interstate. They evoke hope and provoke action.

The research provides an insight into the promise and the reality of New Zealand’s human rights record following ratification of the major international human rights treaties and conventions. While the research was carried out over a three year period and in part offers an historical narrative from the archival material used, we acknowledge the risks of a mono-causal interpretation of the full complexity of human rights. For this reason we have provided some context of the evolution and development of human rights in New Zealand and a bibliographic resource at Appendix 1 relating to scholarship on the impact of human rights treaties ratification

3 Cristof Heyns and Frans Viljoen, F. (2001) “The impact of human rights treaties on the domestic level”. Human Rights Quarterly 23, 483-535.

4 Samuel Moyn (2010) The Last Utopia. Cambridge: The Belknap Press of Harvard University Press at 1.

Although the concept of human rights can be traced back through history and cultures,7 it was not until the formation of the United Nations and the adoption of the UDHR that there was an attempt to formally incorporate the notion of human rights into an agreed statement of principles that applied to all peoples and nations. The horror of the Second World War provided the impetus for countries to come together to try to prevent a recurrence of such a tragedy. The allied nations met at Dumbarton Oaks in 1944 to discuss the establishment of an institution which became the United Nations, and a Charter of Rights which became the UDHR, to ensure that individual rights were recognised as separate from that of the State, and to ensure world peace and security could be advanced by negotiations amongst nations instead of through war.

Although one of the smaller countries involved in the discussions, New Zealand “...exercised an influence far out of proportion to the size or strength of their country...”8The Labour government of the day was concerned to ensure there was an international organisation that would keep the peace by treating nations as equals, practicing collective security against aggression, and developing a system of trusteeship for colonial possessions that advanced the “well-being and development of native peoples” and self-determination. Two issues preoccupied New Zealand. The first was the enforceability of human rights obligations, and the second was the advancement of social and economic interests in the human rights context. These reflected the socialist principles of the Labour government. Its commitment to the process can be seen in the fact that Prime Minister, Peter Fraser, led the New Zealand Delegation to the San Francisco Conference. It was Fraser who introduced a reference to human rights at the San Francisco conference9seeking to introduce a paragraph in the Principles Chapter that read:

All members of the Organisation undertake to preserve, protect and promote human rights and fundamental freedoms, and in particular the rights of freedom from want, freedom from fear, freedom of speech and freedom of worship.

While the adoption of the UDHR was a major achievement, its practical implementation depended on the development of a variety of international human rights treaties and their adoption and translation into domestic law by individual countries. But it was not until 1968 - a year noted for a generational challenge to the existing order - that human rights started to be promoted internationally. The United Nations declared 1968 to be International Human Rights Year

6 Helen Greatrex in her PhD thesis Complementarity: Towards Robust Human Rights Governance in the New Zealand State Sector, (2010) Victoria University of Wellington identifies five phases – growth of international architecture 1940s; growth of domestic architecture late 1970s ongoing; stock take initiatives 1994-2005; more effective implementation 2000 ongoing; and robust human rights governance ongoing. She also uses 20 criteria to assess effectiveness of robust human rights governance.

8Paul Gordon Lauren (1998). The evolution of international human rights. University of Pennsylvania Press: Philadelphia at 167.

9Colin Aikman (1999) “New Zealand and the Origins of the Universal Declaration” Victoria University of Wellington Law Review. 29 (1) 1-11.

providing encouragement to those non-governmental organisations (NGOs) that were struggling to translate human rights from aspiration to an organising concept and movement. Within a decade Moyn noted that“...human rights would begin to be invoked across the developed world and by many more ordinary people than ever before. ...human rights most often meant individual protection against the state.”10

Although Moyn’s observation has some application to the New Zealand experience, the reality was that from the outset there was a recognition domestically within state institutions that the government had a responsibility to protect and further human rights. To characterise human rights issues as individuals against the state is to miscast the facilitative role of the State in the realisation of human rights for individuals. In the New Zealand context it is difficult to conceive of a human rights culture in public policy without the support of the state.

The need to give effect to human rights in New Zealand grew through the 1950s and 1960s. During this period, however, New Zealand was complacent about the need to formally recognise human rights. There seemed to be an assumption that it did not need to do so because there were few human rights problems in New Zealand. For example, the Minister of Justice, the Hon Ralph Hanan, wrote in an essay entitled “Human Rights: The Prospect” as part of a series of lectures to celebrate the 20th anniversary of the adoption of the Universal Declaration of Human Rights:11

We in New Zealand have inherited from the United Kingdom a tradition of attaching no great importance to positive laws to guarantee or enforce human rights. The idea of a Bill of Rights

has been alien to our temper and we prefer to rely on the negative effect of common law, supported ultimately, as all rights must be supported if they are to be effective, by public opinion. Although this has disadvantages as well as benefits it suits us well enough.

Nor do we look with much favour even on statutes that set out to prohibit discrimination. ....

To some extent it is true we do not have it because we do not think we need it.

In 1960 National Party policy included the commitment that a national government would pass a Bill of Rights similar to that recently adopted by the Canadian Parliament.12A petition to Parliament by the Constitutional Society for the Promotion of Economic Freedom and Justice in New Zealand (Inc) praying for a written constitution and including a draft constitution was presented to the Public Petitions Committee which did not recommend its adoption. On 15 August 1963 Justice Minister Hanan introduced a Bill of Rights designed to give statutory recognition to the fundamental rights and freedoms that existed in New Zealand. The Constitutional Reform Committee reported back in 1964 recommending the Bill not proceed, and it was dropped. Although Hanan’s initiative was defeated he remained optimistic that New Zealand would come to accept the need to incorporate human rights obligations in its legal system because of the innate fairness of New Zealanders and the need to retain international credibility.13

The aspiration to be a good international citizen has been important for New Zealand and is often cited as a reason for adoption of international human rights treaties. However, while Hanan identified a growing awareness of, and support for, the incorporation of international human rights

11 Ken Keith, (ed) (1968). Essays on Human Rights, Sweet & Maxwell (NZ) Ltd, Wellington at 187.

12 Geoffrey Palmer, G“A Bill of Rights for New Zealand?” in Keith K J at 107.

treaties amongst some politicians and officials he also recognised the tendency of New Zealand to favour gradual pragmatic law reform.14

The human rights issue of the time was racial discrimination. This reflected the growing awareness internationally of the evils of the apartheid system in South Africa and domestically of discrimination suffered by Māori and that the Crown had not fulfilled the obligations under the Treaty of Waitangi. Hanan’s advocacy for reception of the CERD into New Zealand law together with support from key public officials accounts for this treaty being the first to be incorporated in New Zealand law in the Race Relations Act in 1971. The title of the Act explicitly refers to the treaty, the long title describing it as “An Act to affirm and promote racial equality in New Zealand and to implement the International Convention on the Elimination of All Forms of Racial Discrimination”.

The importance of individuals in key political, public service, and community organisations has often been under estimated and misunderstood. Hanan’s influence was important during this period because he provided political leadership for the increasing awareness and demand for human rights treaties that would enable people to assert their right to be treated in a non- discriminatory manner by both the Government and individuals. For Hanan the importance of the Universal Declaration was that: “[It] has helped to mould public opinion and public attitudes, and it will go on doing so to an increasing degree.”15

The publication of Essays on Human Rights in 1968 to mark the 20th anniversary of the adoption of the UDHR represented a watershed in the recognition of New Zealand’s international human rights treaty obligations and the beginning of a public debate on the formal reception of the treaties into New Zealand.

The emphasis of some of those contributing to the 20th Anniversary event was on race relations, providing the impetus for the ratification of CERD in 1972 and the enactment of the Race Relations Act 1971. The Race Relations Act established a pattern for New Zealand’s method of compliance with its international obligations. Citizens were given a negative right not to be discriminated against on specified grounds and (with the introduction of the Human Rights Act in 1978) a process for enforcement through a special institution. The ordinary courts were not the preferred method of enforcement. The reason for this approach reflected a concern to ensure an adversarial approach was not taken to complaints. The preferred method of resolution being through conciliation, mediation and negotiation.

The ratification of CERD and enactment of the Race Relations Act was followed by the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) in 1978 after the enactment of the Human Rights Commission Act 1977. The Human Rights Commission Act 1977 provided the opportunity to address both increasing political pressure for equality of women to be recognised in legislation and the need for international credibility by ratification of international human rights treaties. There was cross party support for the legislation except on issues relating to trade union

There appeared to have been an assumption at the time that the Human Rights Commission Act 1977 was sufficient to incorporate the ICCPR and the ICESCR into New Zealand law and policy. The reality was, however, that the Act did not include all the provisions of the Conventions and was less than comprehensive in terms of guaranteeing citizens’ human rights. It did, though, provide an institutional mechanism for the enforcement of those rights that were recognised.

The obligation to report to the United Nations on the implementation of the treaties was observed by New Zealand Governments and provided an opportunity for regular reassessment of the level of compliance. For example, during the 1970s women campaigned for the ratification of CEDAW and the establishment of a Ministry of Women’s Affairs to oversee the implementation of the Convention. The election of the Labour Government led to ratification in 1985 and the establishment of the Ministry of Women’s Affairs to monitor state human rights performance.

The end of this period was also marked by the most significant legal recognition of human rights domestically with the enactment of the New Zealand Bill of Rights Act 1990 (NZBORA). The legislation represented a campaign by human rights advocates since the 1960s.17 The story of this campaign has been told elsewhere18 but there are two points that need to be made - the influence of developments in other jurisdictions, particularly Canada, and the importance of key individuals who drove both the policy formation process through an influential White Paper19and a political process which was highly contested and reflected the dominance of the notion of parliamentary sovereignty and reluctance to give decision-making power to the courts.

The White Paper had recommended an entrenched Bill of Rights that gave the courts the power to strike down legislation if it was contrary to provisions of the Bill of Rights Act. The Select Committee20that considered the White Paper attracted a number of submissions on this point and eventually recommended against entrenchment as it would have represented a major departure from New Zealand’s constitutional arrangements. In addition during the round of consultation the Māori community stated it did not support inclusion of the Treaty of Waitangi in legislation. When enacted in 1990 the NZBORA was not entrenched but did specifically refer to the ICCPR. It also marked the beginning of a new era in human rights in New Zealand.

The period 1990 to 2014 began with the extension of the grounds of non-discrimination in the Human Rights Act 1993 (HRA). The period is significant for two major developments in the implementation of human rights. The first was the role of courts in interpreting the provisions of the NZBORA, and the second was an attempt to integrate a culture of human rights awareness in the policy-making process. A summary analysis of these developments is found in a paper by Andrew and Petra Butler which assesses 16 years of human rights practice since the enactment of

18 See Ken Keith, “Concerning Change: The Adoption and Implementation of the New Zealand Bill of Rights 1990” (2000) 3 VULR 721 and Paul Rishworth, “The Birth and Rebirth of the Bill of Rights” in Grant Huscroft and Paul Rishworth, P (eds) Rights and Freedoms, Brookers, Wellington (1995) at 9 – 13.

20 “Final Report of the Justice and Law Reform Committee on a White Paper on a Bill of Rights for New Zealand”, (1988) AJHR 1 8A, 2-3.

the NZBORA.21They argue that the Courts have had considerable moral influence over the actions of government, citing examples of decisions that have resulted in the adjustment of policy to make it consistent with human rights obligations.

Some commentators do not consider that such a dialogue between the Parliament and the judiciary is possible, and that the courts have not sufficiently challenged the Parliament in supporting human rights.22 The New Zealand experience is interesting, however, in that while Parliament has not been prepared to legally concede any restraint of its sovereignty, governments have undertaken to incorporate human rights considerations within public policy decision-making in response to specific judicial statements. This can also be seen in amendments to the Cabinet Manual that require all policy papers to contain a statement whether or not the policy is consistent with the NZBORA and the HRA23and the section 7 vets under the NZBORA which require the Attorney General to report to Parliament on the introduction of a Bill if it appears inconsistent with the NZBORA.24

In 2004 the government undertook to promote human rights in the state sector, the Ministry of Justice issuing a handbook explaining the obligations of policy advisors.25 This development resulted from a 1999 election commitment by the Labour party to mainstream human rights in public policy and promote better understanding of the importance of human rights in the community. This commitment also led to a Ministerial Inquiry into an evaluation of human rights protections.26 The Inquiry led in turn to the 2001 Amendment to the HRA and a restructuring of the NZHRC emphasising the Commission’s role as a human rights advocate with a focus on education and community involvement. The individual complaints function was transferred to the Human Rights Tribunal along with the ability to pursue an individual complaint to the stage where the court could issue a declaration of inconsistency if the Government was found to have acted contrary to its human rights obligations.27

In 2009 David Erdos28analysed the legal impact of the NZBORA and the impact of various influences such as the open texted nature of the provisions, the interpretative role of the courts and the lack of remedies. In a case analysis, he notes a judicial culture in the New Zealand courts that appeared to have divergent standards, preferring remedies for personal liberty over cases involving social equality. He attributes this dichotomy to the courts being more comfortable in their traditional common law role of protecting the civil rights on individuals - for example, the reluctance of the courts to intrude on Parliament’s role of making policy was clearly evident in the

23 Cabinet Office Step-by-Step Guide to Cabinet and Cabinet Processes (2001) Wellington, [3.53-3.60]

24 The Reports since 2003 have been available on the Ministry of Justice website.

25 Attorney-General Margaret Wilson “Foreword” The Handbook of the New Zealand Bill of Rights Act 1990 (Wellington, 2004) 5. The Handbook is a shorter version of the Ministry of Justice Guidelines to the New Zealand Bill of Rights Act which contain a fuller discussion on the legal application of individual sections of NZBORA see: www.justice.govt.nz (last accessed 1 August 2012). As Attorney General Wilson facilitated face-to-face meetings between the Chief Human Rights Commissioner and the Chief Executives of the most influential Ministries in an effort to reinforce the importance of the government’s human right obligations.

26 Ministerial Re-evaluation of Human Rights Protections in New Zealand, at www.justice.govt.nz/publications- archived/2000/re-evaluation-of-the-human-rights-protections-in-new-zealand/.

27 For an account of the process and issues surrounding the 2001 Amendment see Margaret Wilson, “Mainstreaming human rights in public policy: the New Zealand experience”, (2011) Vol. 8, No 1, Justice Journal, 8.

28 David Erdos, “Judicial Culture and the Politico-legal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand” (2009) Vol. 34, Issue 1, Law & Society Inquiry, 95 – 127.

Quilter case29(the same sex marriage case). Erdos also identified the practical issue of resources as influencing which issues are taken to court for determination and the inter-play between judicial and political remedy in the recognition of human rights.

Since the enactment of the NZBORA in 1990 the litigation of human rights issues has increased greatly, for example a LexisNexis search of the New Zealand Law Reports between 2005 and 2007 found 156 citations of NZBORA.30An analysis of significant cases and academic commentary suggests that the courts are increasingly likely to assert the importance of human rights, even on social policy issues. At the same time Governments have grown to accept that human rights issues are political issues that cannot be ignored and need a response. Since the 2001 Amendment to the HRA, the NZHRC has taken a more proactive role both in relation to the formal United Nations reporting on the New Zealand’s human rights performance and in the advocacy of human rights though the publication of research on domestic human rights issues and in submissions to government. The Office of Human Rights Proceedings and the Tribunal’s role has also developed as it determines individual complaints.31

Several themes have emerged over this period. A persistent theme - both politically and legally - has been the issue of maintaining domestic sovereignty when ratifying international treaties (including human rights treaties).

Ratification of international treaties by enacting legislation has been the traditional means by which the State accepts responsibility for implementation of international obligations. However statutory recognition of the international obligations varies in nature and content. There is no example of direct incorporation of the articles of international treaties into New Zealand legislation. The NZBORA closely reflects the ICCPR articles but there is no equivalent legislation incorporating ICESCR Articles, yet New Zealand has ratified both Covenants. How and by what means the State fulfils its international obligations is seen as a matter of not only parliamentary sovereignty but of executive sovereignty.

While there is a tension between the notion of parliamentary sovereignty and independence of the judiciary, the relationship is more complex than a simple adversarial one. Petra Butler in a recent paper on the relationship between the Supreme Court and Parliament in human rights cases notes that while parliamentary sovereignty remains intact, the Courts through their judgements have an impact on legislation and policy.32 The enforcement of international obligations is not only a matter for the State and state institutions. The Courts have from time to time been required to decide the nature of such obligations in specific cases and have taken the position that if the New Zealand Government has ratified an international treaty legislation a matter will be interpreted consistently with those obligations unless there is an express prohibition to do so. As State obligations increase, so do the times the issue comes before the Courts. While treaty making is the prerogative of the executive, it is Parliament that incorporates the international obligations and rights into domestic law. The courts nonetheless have played a significant role in ensuring that New Zealand acts

32 Petra Butler, “It Takes Two to Tango”, Victoria University of Wellington Legal Research papers (2014)

consistently with its international obligations whether or not they have been incorporated into domestic legislation. The implementation of the NZBORA and the HRA have highlighted this tension. Petra Butler has concluded that the constitutional reality is that parliament makes the law but that Parliament has:33

...given up some of its moral power by allowing itself to be criticised by the courts either through declarations of inconsistency or when interpreting statutes by assuming Parliament intended to be consistent with the Bill of Rights Act.

Claudia Geiringer came to a similar conclusion in an article published in the Otago Law Review commenting that:34

This article has tried to take a strong account of the role of the Bill of Rights in the legislative process seriously and to lay bare its constitutional and practical implications. Ultimately, however, no matter how attractive the strong account may seem as a means of energising New Zealand’s somewhat fragile parliamentary bill of rights, it is questionable whether it can be sustained. The account is fundamentally at odds with the policy of continuing legislative supremacy...

New Zealand’s lack of institutional clarity and its preference for pragmatism in constitutional matters have created space for conflict. While it has not undermined the commitment to human rights obligations, it has provided a fertile debate as to whose primary responsibility it is to implement human rights - the courts or the legislature. In reality an iterative process between the legislature and the courts that has been characterised as a dialogue appears to be emerging - though a dialogue at long range with much miscommunication.

The impact on New Zealand courts and legislators of how international human rights obligations have been enforced in overseas jurisdictions is also relevant. The Canadian Charter of Rights for example, has had a significant impact on interpretation of the NZBORA and European Court decisions are increasingly influencing United Kingdom case law and, by extension, New Zealand case law.

A further theme that has emerged since the enactment of the NZBORA is the notion of a hierarchy of rights with civil and political rights being considered superior to economic, social and cultural rights, and the rights of population groups such as women, children and people with disability. This reluctance to accord equal status to economic, social and cultural rights was already evident in 1948 and the discussions leading to the UDHR.

The reluctance by government to recognise social and economic rights is also reflected in the NZBORA which only refers to civil and political rights. There was little support for the Courts to address social and economic rights, the principal reasons being that such rights were not justiciable and the prohibitive costs if legal obligations were placed on government. This attitude was also evident in early research on social and economic human rights in New Zealand commissioned by the Human Rights Commission as part of the development of the first National Plan of Action.35

33 Petra Butler, “Human Rights and Parliamentary Sovereignty in New Zealand” (2004) 35 VUWLR 341 at 366

34 Claudia Geiringer, “The Dead Hand of the Bill of Rights? Is the New Zealand Bill of Rights Act a Substantive Legal Constraint on Parliament’s Power to Legislate” Otago Law Review (2007) Vol.11 No. 3 389 at 415

35 Claudia Geiringer and Matthew Palmer,“Human Rights and Social Policy in New Zealand” (2007) 30 Social Policy Journal in New Zealand, 12.

While human rights have become institutionalised within the New Zealand legal system, in terms of public policy and government response to human rights, the position is not as clear. Despite existing institutional mechanisms and machinery for policy formation that is rights based, the ebb and flow of executive and administrative commitment continue to bedevil the implementation of human rights in New Zealand.

The final theme that is apparent when looking across the three different periods of New Zealand’s human rights history is the influence of intellectual leadership which is often, but not always, combined with political, judicial, executive or civil society leadership. A feature of human rights progress is the power, influence and persistence of individual champions around human rights issues, causes or movements.

The rest of this chapter now looks at the measurement of human rights and describes the methodology used in the research.

Human rights treaty impact assessment is attracting increasing attention from researchers36and is a significant sub-field in the social sciences.37 It is important because it allows for priority setting by those working on human rights problems. Strong motivation for assessment comes from the belief that measurement stimulates the sense of accountability of States for the implementation of human rights treaty promises. For example, one researcher noted that ‘rigorously tracking human rights progress holds duty-bearers responsible for their duties to protect and promote human rights’.38 Scholars also persistently note the continuing difference between the ideal standard of human rights protection formalised in the international law of human rights and the accompanying rhetorical commitment of State parties, and their actual human rights practice. It is suggested that the disparity could be addressed by valid, authoritative and effective assessment that compels greater accountability for fulfilment.

Quantitative and qualitative methodologies, sometimes a mixture of both, have been used to explore factors that influence domestic and international change following the ratification of human rights treaties. The political science literature, in particular, offers insights from quantitative studies39 about whether treaty ratification leads to effective implementation and which approach is best used to measure effects.40 Debate about the merits of different forms of measurement41 has intensified, some of those advocating the need for high quality information being particularly interested in monitoring and analysing human rights protection with a focus on violations.42Theoretical and conceptual scholarship is complemented by United Nations agencies,

36 Todd Landman, (2004). “Measuring human rights: principle, practice and policy”. Human Rights Quarterly. 26(4) 906- 931.

37 Andrew Byrnes and Marsha Freeman,(2011) “The impact of the CEDAW Convention: paths to equality”. World Development Report 2012. Gender Equality and Development. Background paper accessed on 2 April 2014. www.ssm.com.

38 Andrew Hines, (2005) “What human rights indicators should measure.” In Measurement and human rights: tracking progress, assessing impact. A Carr Center for Human Rights Policy Project Report. Working Paper Summaries 11-13. Accessed on 2 April 2014. http://www.hks.harvard.edu/cchrp/pdf/Measurement 2005 report.pdf

39 Oona Hathway (2002). “Do human rights treaties make a difference?” Yale Law Journal. 111(8) 1935-2042.

40 Ryan Goodman and Derek Jinks (2003) “Measuring the effects of human rights treaties”. European Journal of International Law. 14 (1) 171-183

41 Michael Ignatieff and Kate Desormeau (2005). Measurement and human rights: Introduction. A Carr Center for Human Rights Policy Project Report. Working Paper Summaries 1-8.

civil society organisations and academics offering practical advice in measurement techniques with an emphasis on indicator development43 or benchmarking44 or monitoring toolkits.45

Both quantitative and qualitative methodologies have their critics. One scholar notes problems of definition and of obtaining reliable data in relation to the use of quantitative data,46 while others are critical of the human rights community’s tendency to focus on the ‘individual story, the illuminating testimonial’.47 However, as participants noted at the Carr Center’s 2005 conference on measurement and human rights, what is really required is rigour in reporting data, rather than false distinctions or claims made for either methodology. One scholar notes that while more and better evaluation is needed, the real question is how it can be done.48

In a bid to answer this question the researchers undertook a literature review of the measurement of human rights and developed a bibliographic resources in the first year of the project which was made available to other interested researchers and civil society on the New Zealand Human Rights Commission website. The resource is attached at Appendix 1.

The following evaluative framework was developed for the research. It encompassed three levels of activity relating to ratification, reporting and impact assessment. (Figure 1).

43 United Nations (2013) Human Rights Indicators: A guide to measurement and implementation. Office of the High Commissioner for Human Rights.

44 Purna Sen (2011). Universal Periodic Review: Lessons, hopes and expectations. Commonwealth Secretariat. London. www.thecommonwealth.org/publications.

45 Eitan Felner (2009). “Closing the escape hatch: a toolkit to monitor the progressive realisation of economic, social and cultural rights”. Journal of Human Rights Practice. 1 (3) 402-435.

46 Robert Goldstein (1986) “The limitations of using quantitative data in studying human rights abuses”. Human Rights Quarterly. 8(4) 607-627.

48 Paul Gready (2009) “Reasons to be cautious about evidence and evaluation: rights based approaches to development and the emerging culture of evaluation”. Journal of Human Rights Practice. 1(3) 380-401.

Areas to be looked at	Treaty	What will we do?	How will we do it?
Legislative change	ICCPR, ICESCR,CERD,C EDAW,CRC, CRPD	Examine status of reservations Identify domestic legislation introduced	Legislative audit Review of Treaty body recommendations
Human rights norms in policy and practice	ICCPR, ICESCR,CERD, CEDAW,CRC, CRPD	Select examples identified by participants/sta keholders	Review of Treaty body recommendations Write case studies Conduct interviews
Use by courts	ICCPR, ICESCR,CERD, CEDAW,CRC, CRPD	Review judgments for Treaty body citations	Desk search Conduct interviews where appropriate
Engagement of civil society	ICCPR, ICESCR,CERD, CEDAW,CRC, CRPD	Identify, locate and review shadow reporting by CSOs	Desk/archival search Conduct interviews Participant observation
Role of the New Zealand Human Rights Commission (NZHRC)	ICCPR, ICESCR,CERD, CEDAW,CRC, CRPD	Review NZHRC role in parallel reporting and country examination processes	Desk/archival search Conduct interviews Reports of direct experience (CEDAW 7th report, ICCPR 5th report)

Analysis of the UPR involved different evaluative frameworks including a refinement of the process used by the Commonwealth Secretariat who analysed the first cycle of UPR involving Commonwealth countries. The assessment of New Zealand’s UPR involvement in this research also refines the ranking methodology developed by Professor Edward McMahon of the University of Vermont and UPR Info, and reported on by the Commonwealth Secretariat.49

A variety of methods were used over three years to capture data and to analyse it.

New Zealand has been a conscientious participant and stakeholder in international treaty body reporting. It has submitted a total of 28 (7 for CEDAW, 1 for CRPD, 9 for CERD, 5 for ICCPR, 3 for ICESCR, 3 for UNCROC) national or country reports on the six major international human rights treaties since they were ratified.50 Many of these reports were accompanied by shadow reports from civil society or parallel reports from the NZHRC and involved questions from other UN member states as well as concluding observations and recommendations made back to New Zealand as the state party under examination.

This represents a major source of and a large quantity of paper documentation available to researchers. For this reason the researchers identified some significant articles and concepts in each treaty to analyse in greater depth in order to move beyond a purely descriptive account of treaty body reporting. The following articles were noted in the individual treaties:

A search of Lexis-Nexis was used to identify references to the relevant international treaties in Court decisions. Analysis of the extent to which the international treaties were relied on was limited to decisions of the higher courts which had precedent value.

Individual chapters highlight salient decisions. The ICCPR search yielded over 300 references - principally because of the referral to the Covenant in the long title of the NZBORA. The analysis of the ICCPR was therefore limited to those decisions which illustrated the application of different aspects of the Covenant.

The question of whether New Zealand can be described as having a dualist or monist approach and, if so, whether the international treaties are enforceable by the courts, is left open. Although some preliminary research was carried out, it appears that the issue is not clear cut and far from conclusive in determining how the judiciary has responded to the treaties.

Semi-structured interviews were used to evaluate treaty body processes. The interviews related mainly to stakeholder involvement with or observations of the following treaties: ICCPR, ICESCR, CERD, and CRPD. Interviews were conducted with a selection of current and former participants (politicians, public servants, civil society and academic/experts). A number of the interviews were conducted with politicians, officials and civil society representatives who attended New Zealand’s reporting on CEDAW in 2012.

The interviews were designed to develop from actor/participants an accurate and reliable description of how treaty body reporting was planned, executed and followed up. The interviews also explored attitudes to human rights; the subjects’ knowledge of and motivation relating to treaty body reporting; what actions they were involved with or followed treaty body committee recommendations made to the New Zealand government; the effects and effectiveness of treaty body reporting process and outcomes both in general and with specific examples. A semi- structured interview format allowed for follow-up questions, the addition of supplementary questions and for probes (Appendix 1). As other researchers note, “interviews provide a valuable opportunity to test tentative theories developed from the public record against the experiences of those who worked within the system”.51 The interviews were valuable to understand how previously undocumented factors and influences affected New Zealand’s capacity and capability with regard to treaty body reporting.

Participant observation was undertaken by several of the researchers in relation to New Zealand’s fifth report on the ICCPR in New York in 2010, the seventh periodic examination by the Committee on the Elimination of Discrimination Against Women at the United Nations in New York in 2012, and at the UPR Info session held in Geneva for New Zealand second cycle of UPR in 2013. In addition to their research function, the researchers were involved in the first two as members of the NZHRC (as Commissioner and senior legal and policy analyst) and at UPR in Geneva in the role of a representative of civil society.

Participant observation was a valid and useful way to collect data for the research because it allowed the collection of a wider range of information that outsiders simply would not see, do or know.52 It allowed direct experience of the United Nations treaty body institutions, mechanism, personnel and processes in terms of social milieu and phenomena which would not have been available from other data gathering exercises. It also allowed the researchers to “learn by doing” and it also provided insider access to interviewees who would otherwise have been inaccessible or even wary of sharing their insights at a later point in data gathering. Engaged research is a valid and legitimate complement to other data gathering methods.53

The status of the research team’s direct and practical involvement with human rights development and implementation in New Zealand is a feature of this project. It is both a strength and weakness and needs to be explicit and appropriately identified. Professor Margaret Wilson was Associate

51 Carolyn Evans and Simon Evans (2006). Evaluating the human rights performance of legislatures. Human Rights Law Review 6(3), 545-569.

52 H. Russell Bernard, (2006). Research methods in anthropology. Lanham, MP: Altamira Press.

53 Judy McGregor (2013). An insider’s perspective of a national human rights institution inquiry into employment in the aged care sector in New Zealand. Australian Journal of Human Rights, 19(2), 93-114.

Minister of Justice with responsibility for Human Rights between 1999 and 2005 and was the sponsoring minister of the Human Rights Amendment Act 2001, Professor Judy McGregor was the first Equal Employment Opportunities Commissioner in the New Zealand Human Rights Commission between 2002 and 2012, and Sylvia Bell was the principal legal and policy analyst in the Commission from 2005 to 2014. Before the amendment to the HRA, she was the Senior Legal Advisor at the Office of the Race Relations Conciliator. The research team were therefore both ‘insiders’ and ‘outsiders’ with the attendant benefits and limitations. Chapter Seven was compiled by Frances Joychild QC an acknowledged children’s rights expert and lawyer.

The report’s presentation has been designed so that it can be used in its entirety or chapters can be used separately by different stakeholders. The recommendations provide an agenda for change to improve the fulfilment of human rights in New Zealand. The background material includes a certain amount of repetition as a result of the design and the chapters differ in length. There was less material on the earlier treaties but as the reporting process itself matured, more information became available for analysis.

Ford’s analysis found that human rights reflect a profound advance in both moral thinking and political action: 54

...but, at the same time, rights suffer from some of the weaknesses of religious thinking: unjustified conviction and blind faith, dogmatism, a priori reasoning....and an impatience with or inattention to practical complexities.

Systematic research into the impact of the domestic ratification and implementation of the major international human rights treaties is one way of addressing such weaknesses. The research considers each of the treaties by analysing political institutions, cultural norms, and policy considerations as well as the activities of civil society and of the national human rights institution and the role of the courts. It attempts to take the pulse of the human rights agenda in a country with a strong self-perception that it is a good international citizen. An inevitable conclusion that emerges from sustained scrutiny of our implementation of the treaties and our domestic performance in the fulfilment of human rights in practice, is that New Zealand needs to come down to earth about the fault lines in its realisation of treaty body obligations.

Chapter Two The International Covenant on Civil and Political Rights (ICCPR)

The international human rights framework has its origins in the UDHR. The Declaration is made up of a number of agreed humanitarian principles designed to provide the foundation for international peace and security. To make it legally binding, two mutually reinforcing treaties were developed - the International Covenant on Civil and Political Rights (ICCPR) which dealt with civil and political rights, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which addressed economic, social and cultural rights.

Drafting of the treaties began in 1951 but it was 1966 before agreement was reached on the texts and, although the treaties were adopted by the UN General Assembly and opened for signature in 1966, it was another decade before they came into force. New Zealand signed both Covenants in 1968 and ratified them in 1978.55 Together with the UDHR they make up the International Bill of Rights.

The Human Rights Commission Act 1977 (the HRCA), which was enacted before New Zealand ratified the Covenants, was primarily an anti-discrimination statute that provided a mechanism for dealing with complaints of discrimination in certain areas on a limited number of grounds. Its introduction was timed to ensure that New Zealand had the necessary legislation in place to give effect to the rights in the treaties and provide an effective remedy if those rights were violated.56 The HRCA, together with the Race Relations Act 1971 (which prohibited incitement of racial hatred), was considered to provide adequate protection for the rights in the ICCPR.57 This was debateable. A number of the rights in the ICCPR were not reflected in domestic law until the introduction of the NZBORA in 1990 and even now not all the civil and political rights in the Covenant are available domestically58. It is also not entrenched – and therefore does not have the constitutional status that many consider such legislation should59 - and lacks a remedies provision.60

55 The Conventions have a preamble in common. Articles 1, 3 and 5 are the same and article 2 guarantees the rights in the Covenants to everybody equally although article 26 ICCPR refers specifically to non-discrimination

56 This was a precursor to what was to become best practice for ratifying a treaty. In 1997 the Foreign Affairs and

Trade & Defence Select Committee reported to Parliament recommending that all treaties subject to ratification should be tabled in the house for approval and a National Interest Analysis (NIA) prepared which addresses the reasons for New Zealand becoming party to the treaty, the implications for New Zealand of becoming party, and the means of implementing the treaty. This is now reflected in the Standing Orders.

58 While not all the rights in the ICCPR are reflected in the NZBORA – for example, the right to property; protection of the privacy of family, home and correspondence; the right to liberty and security of the person and a general right to equality are not included– there is a qualification in section 28 which states that “an existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part” – potentially enlarging the scope of the legislation. The permissible derogations in the Covenant are addressed through the s.5 process which allows restriction of the rights in the NZBORA if the restriction can be justified in a free and democratic society.

59 See for example, Geoffrey Palmer Bridled Power: New Zealand Government under MMP (3d.) OUP, Auckland (1997) 282- 283

60 The Courts have developed a remedial jurisdiction in part by reliance on the reference to the ICCPR in the long title

- for more on this see Rodney Harrison “The Remedial Jurisdiction for Breach of the Bill of Rights” in Rights and Freedoms, Huscroft & Rishworth, above at 405. Although the Courts have further developed Baigent style remedies, it is a moot point whether this is congruent with the treaty provision: Conte, A. From Treaty to Translation: the Use of International Instruments in the Application and Enforcement of Civil and Political rights in New Zealand. See also Elizabeth Evatt

It reserved the right not to apply Article 10(2)(b) or Article 10(3) which require juveniles to be kept separate from adults in prison facilities where the shortage of suitable facilities makes it unavoidable; or where the interests of other juveniles require the removal of a particular juvenile offender or mixing is considered of benefit to the person concerned.

The government reserved the right not to apply Article 14(6) to the extent that it is not satisfied by the existing system for ex gratia payments to persons who suffer as a result of a miscarriage of justice.

Having legislated in the areas of advocacy of national and racial hatred and the exciting of hostility or ill will against any group or persons, and having regard to the right to freedom of speech, the government reserved the right not to introduce further legislation with regard to Article 20.

New Zealand also reserved the right not to apply Article 22 relating to trade unions as it considered that existing legislative measures, enacted to ensure effective trade union representation and encourage orderly industrial relations, were not fully compatible with that Article.

The existence of the reservations continues to concern not just the Human Rights Committee (the Committee) but other treaty bodies. For example, the CRC Committee has recommended that New Zealand should finalise its position on age mixing in prisons with a view to withdrawing the reservation. Although the Government’s response has been positive and there are indications that adequate facilities are available, financial constraints continue to be cited as reasons for not being able to comply totally and remove the reservation.

In relation to the second reservation, the Government has stated that it is part way to removing the reservation by recognising the right to award compensation to torture victims. An award is at the discretion of the Attorney-General. Tony Ellis, a barrister who has taken a number of cases to the Committee – of which two have been successful, at least in part – considers that the need to obtain agreement of the Attorney-General is at odds with the government’s most recent report in which it suggests that New Zealand complies for the most part with Art.14. He considers the State’s position is further undermined by the way in which the Courts calculate the level of compensation for cruel and unusual treatment61 and the Prisoners’ and Victims’ Claims Act 2005 which allows a prisoner’s compensation for ill treatment to be awarded to his or her victim rather than the prisoner personally – a position defended by the State as consistent with the right to an effective remedy.

“The Impact of International Rights in Domestic Law” in Litigating Rights: Perspectives from Domestic and International Law

In relation to recommendations by the CERD Committee and the Committee for New Zealand to take steps towards removing the reservation on compliance with Article 20, the government has repeatedly asserted that the existing legislation is adequate because of ss.61 and 131.62

Finally the reservation relating to trade union membership has been an issue both under the ICCPR and ICESCR but the government appears to have little incentive to remove the reservation despite changes to the law introduced with the enactment and subsequent repeal of the Employment Contracts Act.

At the time of writing, none of the reservations have been removed despite recommendations by the Committee responsible for monitoring the ICCPR as well as by the CRC and CERD Committees. The Government continues to state that they are working towards removal. The list of issues identified by the Committee for answer in the sixth periodic report again asks whether the State envisages withdrawing its reservations and, if not, to provide detailed reasons why it does not intend to do so.63

New Zealand acceded to the First Optional Protocol on 26 May 1989.The Optional Protocol allows citizens of countries that have acceded to it to submit complaints to the Human Rights Committee requesting a determination that they have been the victims of a violation by the State Party of any of the rights in the Covenant. The Optional Protocol can only be invoked when domestic remedies have been exhausted.

The Committee has released General Comment 33 on the obligations of State parties to the First Optional Protocol to the ICCPR.64In the General Comment the Committee emphasises the importance of the Committee’s concluding Views in communications made to it under the Protocol and that “parties must use whatever means lie within their power in order to give effect to the Views issued by the Committee.” Although the Committee has asserted that its Views are legally binding, this remains questionable.65A finding that there has been a violation does not mean that the relevant State party concerned is obliged to address it although it may be hard to reject, particularly if the State values the opinion of its international peers and the international

62 To some extent the position adopted by the Committee is validated by the fact that very few complaints relating to exciting racial disharmony are successful under the HRA as they rarely reach the threshold required when the right to freedom of expression is factored into the mix.

65 Scott Davidson “Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee” [2001] NZ Law Review at 140. But see Geoffrey Palmer in “Human Rights and the New Zealand Government’s Treaty Obligations” (1999) 29 VUWLR at 68 quoting Cooke, P in Tavita v The Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 in which His Honour was considering the Optional Protocol and the right to submit a communication to the Committee and observed it was “in substance a judicial body of high standing” and that it was “in a sense part of this county’s judicial structure ... A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them”. He does, however, go on to say that this approach did not enjoy “enthusiastic endorsement” by Ministers or their advisers. In Tangiora v Wellington District Legal Services Committee [1999] UKPC 42; (1999) 5 HRNZ 201 the Privy Council stated (albeit obiter) that there is much force in the argument that the UN Human Rights Committee has an adjudicative function “...when the Committee reaches a decision that a party is in breach of its obligations under the ICCPR, it has made a definitive and final ruling which is determinative of the issues concerned.”

opprobrium or censure that could result from non-compliance by a country that boasts of its human rights record. Self-evidently, compliance is necessary to render the Optional Protocol effective.

In an article written in 2001 (and before the Committee had found any violations in relation to New Zealand), Scott Davidson speculated on the government’s response in the face of an adverse ruling and noted that unless the Committee was manifestly wrong or had acted in bad faith: 66

...it would seem politically unwise to argue that such views are not technically legally binding on the state, especially since the State is able to muster all of its legal resources to contest any communication.

Since ratifying the Optional Protocol, 23 complaints against New Zealand have been considered by the Committee.67 Most have been dismissed as inadmissible or no violation has been found, although at least one of these was considered to have made a significant contribution to the Committee’s jurisprudence.68

In Rameka et al v New Zealand69 the authors had been sentenced to preventive detention for serious sexual offences. They argued that the principles directing the sentencing were vague and arbitrary because they imposed a discretionary sentence on the basis of evidence of future dangerousness which was difficult to predict. They also claimed that there was insufficient regular review of their condition and detaining them on the basis of future offending violated the presumption of innocence – two factors that had concerned the Committee when considering New Zealand’s third periodic report on compatibility of the preventive detention regime and Arts. 9 and 14 of the Covenant.

The Committee dismissed the claims of two of the authors that their detention was arbitrary but found that the inability of the remaining complainant to challenge the existence of substantive justification for his continued detention for preventive reasons amounted to a violation of his right under Art. 9(4). It required the New Zealand Government to provide him with an effective remedy including the ability to challenge the justification for his continued detention once his actual sentence had been served and to ensure that the situation did not arise in the future. The Government was asked to provide evidence within 90 days about the measures taken to give effect to its Views.70

66 Davison above at 144. The author also suggests that if New Zealand has concerns about the way in which the Committee operates (see Don MacKay, “The UN Covenants and the Human Rights Committee” (1999) 29 VUWLR

11) it should promote vigorous debate about human rights within New Zealand, and for every area of government, especially the Executive, to take its responsibilities seriously.

67 See appendix 3 which lists the communications from New Zealand and provides some indication of the length of time it takes for the Committee to hear a case.

68 Drake v New Zealand Communication no. 601/1994 (1997) was a claim of violation by New Zealand of Arts. 2(3) & 26 The authors had been detained by the Japanese in prisoner of war camps and alleged that, by entering into a peace treaty with Japan releasing the Japanese from further reparation obligations, NZ had violated the ICCPR because it had failed to provide appropriate compensation for the disabilities and incapacities suffered by the authors.

70 The Committee’s response has been criticised as having major deficiencies because of its lack of understanding of the complexities of the sentencing regime in New Zealand. Claudia Geiringer Case Note: Rameka v New Zealand (2005) 2

The government’s response was to amend s.25(3) of the Parole Act which allowed the Minister of Justice to designate certain classes of offenders who had not reached the date at which they were eligible for parole for early consideration by the Parole Board. This led to review of the justification for continued detention for preventive purposes. The designation under section 25(3) would ensure that the author had the ability to challenge his continued detention when the notional finite sentence period mentioned in the Court of Appeal judgment had expired. In relation to future violation, the designation under s.25(3) of the Parole Act would ensure that there was no violation in relation to other offenders in a similar position to the author. The government also advised that the law on preventive detention had been amended since the author was sentenced. Under the Sentencing Act 2002 the Court is required to make an order at the time a sentence of preventive detention is imposed as to the minimum period of detention, which must be for a period of not less than five years. The offender becomes eligible for regular review of their sentence once the minimum period of detention has expired.

In EB v New Zealand71, the Committee found there had been a violation of Art.14 of the ICCPR. EB had brought a claim alleging that New Zealand had violated arts. 2,14,17,23, 24, and 25 of the Covenant by denying him access to his children after prolonged proceedings in the Family Court. In its decision, the Committee said that New Zealand had an onus to ensure prompt resolution of such proceedings and concluded the State had not demonstrated justification for the protracted delay in the resolution of the access proceedings.

The Committee concluded that the Family Court’s decision not to grant EB access to two of his children did not violate his rights as a father under arts. 17 and 23 of the Covenant. One of the Committee dissented from the views of the majority on Art.14. The Committee member considered that the Committee had given insufficient weight to the wider factual context relating to the dispute including allegations of sexual assault and the gravity of potential harm to the child was a factor weighing in favour of lengthier proceedings. It had also failed to take into account the difficulties in case management where there are parallel criminal and civil proceedings. She concluded that it was not appropriate for the Committee to “deride the conscientious attempt of the state party to reach a just result in this case.”

The government did not accept the Committee’s View that there had been a breach of art.14 but that of the dissenting member of the Committee. It noted that the Family Court was running a pilot scheme aimed at resolving cases in a less adversarial manner and reducing delay by shortening families’ involvement in litigation. It repeated this position at the country examination in 2010. Among the list of issues to be answered in the sixth report, the Committee has asked for information about the case flow management system and, again, what had been done to implement the Committee’s views (including the provision of reparation).72

Dean v New Zealand 73also involved a sentence of preventive detention and alleged violation of Art. 9(4). The author had been convicted of a serious sexual offence carrying a maximum penalty of seven years imprisonment. However, because of his demonstrated and substantial risk of reoffending, he was sentenced to preventive detention. As a result he was not eligible for

NZYIL 185. She attributed this in part to limited resources and the fact that treaty body members are not paid for their services

72 Which the Committee appears to equate with the provision of an effective remedy

consideration for release on parole at the time the applicable sentence would have expired. Following its decision in Rameka, the Committee concluded that the ineligibility for parole was contrary to Article 9(4), confirming however that the sentence of preventive detention does not in itself amount to a violation of the Covenant.

The Government reaffirmed its position in Rameka, noting that the measures taken to remedy the situation in that case applied to Mr Dean’s situation although also observing that the Committee had misunderstood the period after which he was eligible for parole consideration. Dean’s situation was reviewed on numerous occasions but parole was declined on each occasion on the basis that he continued to pose an undue risk to the community and had chosen not to undertake necessary rehabilitation plans. Given this the Government considered that the violation of Article 9(4) did not amount to arbitrary detention and compensation or some other additional remedy was unnecessary. Further the systemic measures introduced in 2004 (as a result of Rameka) ensured the violation would not be repeated.

The Second Optional Protocol relates to the abolition of the death penalty. The Optional Protocol was adopted by the UN General Assembly in 1989 and came into force in July 1991. New Zealand ratified the Optional Protocol on 22 February 1990.

New Zealand has reported on the Covenant five times. As with the other treaties, the country reporting has tended to focus on descriptions of what has been done, or plans for doing it, rather than actual achievements, even though the obligations of the Covenant at international law are obligations of result, not conduct; of ends, not means.74

The Committee itself has consistently emphasised structural matters (i.e. de jure compliance) over deacto compliance. The lack of emphasis on outcomes and the failure to follow up on the Government’s response in particular situations is most obvious in issues such as the impact on labour relations following the introduction of the Employment Contracts Act. The Committee was content to accept the answers provided by the government at face value rather than questioning how it impacted on affected employees.75 This highlights the important role that Civil Society and National Human Rights Institutions can play in ensuring the Committee is adequately informed. It also reflects the Committee’s increasing concern about an adequate mechanism for disseminating the concluding comments, given that such comments can help NGOs, in particular, hold the government accountable for commitments they have made internationally.

The Concluding Observations and Recommendations have been criticised as reflecting a poor understanding of the New Zealand context and legislative framework, particularly where it is obvious the Committee members cannot identify with the substance of the matters before them.

However, New Zealand is not the only country which this applies to. There have been difficulties with the concluding comments generally, causing Navanethem Pillay, the UN High Commissioner for Human Rights, to suggest that they could better fit the particular situation of the State they are

74 Ken Keith “The New Zealand Bill of Rights Act 1990 – An account of its preparation” (2013) 11 NZJPL 3 at 11

addressing,76 focus more on priority concerns and be more user-friendly for State parties, as well as for stake holders that might monitor implementation of the process.77

The country reports themselves also inevitably influence the final recommendations.78 In the earlier reports it was clear from the questions asked that the Committee did not have sufficient understanding of the domestic context. This has been addressed to some extent in MFAT’s Core document, but the reports can still misrepresent the actual situation or provide selective material.79 While reporting has become increasingly more sophisticated it still focuses principally on what is being done or planned, rather than providing a realistic description of the situation on the ground. As Sir Geoffrey Palmer commented to one of the authors “we spoke a good game but we did not observe a good game”.

The following examples provide an indication of how New Zealand has responded to specific requests by the Committee.

2.4.1 New Zealand Bill of Rights Act (NBZORA) – Entrenchment and provision of a remedy

Appropriate reflection of the rights in the ICCPR in domestic legislation is a constant theme in the Committee’s Concluding Observations. Beginning with the earlier reports calling for a Bill of Rights to set the constitutional framework,80 the Committee has refined its questions in relation to Art.2, seeking clarification on the vetting of inconsistent legislation, the ability of the Courts to issue formal declarations of incompatibility and the absence of remedies in the NZBORA.81 In response the Government has variously reported that there was public resistance to entrenchment, further consultation was necessary and that the vetting role under s.7 NZBORA was adequate.

In relation to the question of introducing statutory provision for a declaration of incompatibility, the government has relied on the approach of the Court of Appeal to ss.4, 5 and 6 NZBORA in Moonen v Film and Literature Board of Review82as a valid remedy. The Court in Moonen observed that if a provision in an enactment conflicted with the NZBORA and could not be interpreted consistently with the Act or justified under s.5 (i.e. amounts to a reasonable limitation in a free and

76 Navanethem Pillay (2010) Strengthening the United Nations Human Rights Treaty Body System: A report by the United Nations High Commissioner for Human Rights (2010) at 4.2.6

77 The current UPR process (discussed at chapter 8) is seen as a way of better monitoring the realisation of human rights on the ground.

78 Jasper Krommendijk “Can Mr Zaoui Freely Cross the Foreshore and Seabed? The Effectiveness of UN Human Rights Monitoring Mechanisms in New Zealand” (2012) 43 VUWLR at 601; McKay, above n 66 at.12

79 Other issues that have been identified as affecting the quality of the recommendations include inadequate funding

of the treaty bodies; insufficient engagement by individual States despite formal commitments to a treaty; failure to implement treaty body recommendations; fragmentation of treaty body system with the result that concluding observations can be inconsistent between different treaties even though dealing with the same subject matter and lack of visibility of and accessibility of the system itself: Amrei Muller & Lisa Seidensticker, The Role of National Human Rights Institution in the United Nations Treaty Body Process, (2007) German Institute for Human Rights, at 30: accessible at www.institut-fuer-menschenrechte.de

80 Janet MacLean considers there are three reasons for the Committee adopting the view that it does: first, it is possible to pass laws in New Zealand that are inconsistent with rights protected by international conventions; second, remedies for individuals are linked to or depend on the ability to invalidate primary legislation; and that courts are considered to provide better human rights protection than legislatures: “Legislative Invalidity, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act” [2001] NZ Law Rev at 424

81 For example, the lack of a remedy was the subject of criticism by the Committee to New Zealand’s third report. In response the fourth report simply outlined the legislation which protected human rights in New Zealand rather than addressing the lack of a remedy in the NZBORA

democratic society), then it must be given effect to irrespective of the inconsistency but the Court is able to issue a declaration advising that, although the enactment must be given effect, it is inconsistent with the right(s) or freedoms(s) contained in the NZBORA. Whether this is what the Committee considers an effective remedy is contestable and even local academics and commentators are divided on whether this is a valid power.83

The inadequacy of the responses is reflected in the most recent list of issues for the sixth periodic report84which has again asked the Government to identify what measures had been taken to strengthen the NZBORA to revise laws that have been enacted but are inconsistent with that Act.85

The reservation relating to Article 20 involves the incitement of racial hatred. Article 20(2) of the ICCPR establishes that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law’. Advocacy of national, racial or religious hatred itself is not a breach of Art.20 of the ICCPR. It only becomes an offence when it amounts to incitement. That is, when the speaker seeks to provoke reactions on the part of the audience and there is a close link between the expression and the resulting risk of discrimination, hostility or violence.86

Under Article 4 of CERD State Parties are required to make an offence punishable by law of (i) disseminating ideas based on racial superiority or hatred, (ii) inciting racial discrimination, (iii) inciting acts of violence against any race or group of person of another colour or ethnic origin, and

(iv) participating in organisations and propaganda activities which promote and incite racial discrimination. Before New Zealand ratified CERD it introduced the Race Relations Act 1971 and a provision which criminalised incitement of racial disharmony.

General Comment 1187stipulates that to be fully compliant with the Convention States need to have a law making it clear that propaganda and advocacy as described in the Covenant are contrary to public policy and that an appropriate sanction in case of violation of the Article is available. On ratifying the Convention the New Zealand Government reserved the right not to legislate further in relation to advocating racial or religious hatred because it had done so under Art.4 of CERD with the introduction of section 131 of the Human Rights Act 1993 (or more accurately its predecessor).

In the context of the third report the Committee expressed concern about the non-inclusion of advocacy of religious hatred in the HRA. The Government’s response in the fourth report suggested that the NZHRC had advised that such an amendment was unnecessary as New Zealand was not experiencing difficulties and the Commission had not received any significant complaints. Despite this, the fifth report noted the Government Administration Select Committee’s inquiry

83Claudia Geiringer, “On a Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act” VUWLR (2008) cf. Andrew Butler, “Judicial Indications of Inconsistency – A New Weapon in the Bill of Rights Armoury?” NZ Law Rev [2000] at 43. Since Moonen the Court has not only faced argument from Crown counsel that such a remedy does not exist, but has also refused to confirm the existence of such a remedy: Andrew Butler & Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2005) LexisNexis at 1111

into the laws on hate speech and whether or not further legislation was warranted. The Inquiry was discontinued with the incoming Government, a fact that went unremarked by the Committee when it was omitted in the following report.

The list of issues for the next report on the Covenant again includes questions on whether the Government envisages withdrawing its reservations to the Covenant and if not, asking for detailed reasons why not, along with information on how the reservations are compatible with the object and purpose of the Covenant and, more specifically, whether measures were being taken to address the problem of incitement to racial hatred on the internet.88

Concern at the status of Māori as a disadvantaged group is also relatively consistent.

How compliance with articles which apply across different treaties is assessed - particularly articles such as Arts.2 and 26 in ICCPR which relate to non-discrimination - inevitably raises questions about Māori and Pacific inequalities in relation to social and economic rights such as education and health. Conceptually, there are problems in such cases given the nature of the treaties (e.g. the notion of progressive realisation in ICESCR compared to immediate realisation of civil and political rights in ICCPR). In theory it is easier for the State to answer questions about compliance with ICESCR because it can always argue that it recognises there is an issue but is attempting to deal with it. Identifying programmes and policies designed to address an issue are often considered sufficient to demonstrate that the State is realising the right but as one commentator noted, “The enjoyment of the right is less important than the fact that means had been identified to effect that enjoyment.”89

At New Zealand’s most recent examination the Committee asked the Government very specific questions on this point. For example, what measures had been taken to address the high level of incarceration of Māori, in particular women? Had the State fixed specific targets and timelines for reducing the high number of Māori in prisons? What measures had been taken to reduce levels of reoffending by Māori? The response again was to describe various programmes without answering the specific questions, leading the Committee to conclude that New Zealand should strengthen its efforts to reduce the over-representation of Māori, in particular Māori women, in prisons and continue addressing the root causes of this phenomenon. The Committee also suggested it should increase its efforts to prevent discrimination against Māori in the administration of justice, and law enforcement officials and the judiciary should receive adequate human rights training, in particular on the principle of equality and non-discrimination.

For the next report the Committee has asked New Zealand to provide an update on achievements of various initiatives aimed at reducing the disproportionately high incarceration rate of Māori, particularly Māori women, and information on whether there has been an improvement in the underlying social causes and concerns regarding discrimination in the administration of justice that is responsible for the high proportion of Māori among accused persons and the victims of crime.

89 Ann Janette Rosga & Margaret L Satterthwaite, “The Trust in Indicators: Measuring Human Rights”, Berkley Journal of International Law, Vol.27:2 [2009] at 266

NHRIs play a significant role in the treaty reporting as they can highlight issues of concern thereby allowing States to be held to account for matters that may otherwise not be raised before the Committee.91They provide a vitally important contribution that complements and widens the policy discourse, resulting in better and more legitimate decisions clarifying the realities of the domestic situation.

The role of NHRIs and their relationship to the international human rights mechanisms is outlined in the Paris Principles.92A NHRI’s contribution to the reporting process can include providing information for preparation of the list of issues and in the follow up to the Concluding Observations. Receiving information from NHRIs at an early stage is considered critical as it provides the Committee with an evaluation of how well the State is complying with implementing the committee’s recommendations. NHRIs are encouraged to submit shadow reports and NGOs to submit their own reports. To help them carry out these roles the Committee secretariat has undertaken to inform NHRIs in a timely manner when there are opportunities for them to contribute.93

The NZHRC has only engaged with the treaty reporting process (including the ICCPR) in any meaningful manner over the past decade. The Commission provided its own report to the 2010 examination and has commented on drafts of the country reports. It also met with representatives of the Ministry of Justice to discuss the response to the list of issues for consideration at the fifth periodic report in 2010. As part of its role in promoting the Concluding Comments, the Commission refers to the Recommendations and concluding comments of the Treaty bodies in submissions to Select Committees and in its own publications such the 2004 and 2010 reports on the state of human rights in New Zealand.94

NGOs play a critical role in the monitoring of state compliance as they can provide the Committee with valuable information about the situation on the ground and lobby the State to ensure follow up to the recommendations. The increasing number of NGOs that have become involved in the treaty body reporting is a comparatively recent phenomenon and many are still on a learning curve. As an NGO attendee at the recent CEDAW examination commented:95

The take home lesson I learnt (from attending) was the need for absolute rigour in shadow reporting. Anecdotal and unsubstantiated comments just don’t cut it and anything you have to say has to really be supported and demonstrated with a rigorous evidence base. That’s a real

90The mode of interaction differs between treaty bodies, for example, the CERD Committee involves NHRIs in their official sessions. Other committees involve NHRIs and NGOs in a more informal way, engaging with them outside the official meetings. An NHRI will generally have speaking rights if it is accredited by the International Co-ordinating Committee of NHRIs.

91 NGOs can also overemphasise particular issues and mislead the Committee, e.g. the CEDAW Committee’s most recent comments on forced marriage following a report by Shakti which led to recommendations about reform of the Marriage Act in New Zealand

92 OHCHR Information Note: National Human Rights Institutions (NHRIs) interaction with the UN Treaty Body System, 5 April 2011 at 3

93 CCPR/C/106/3: Paper on the relationship of the Human Rights Committee with national human rights institutions, adopted by the Committee at its 106th session (15 October – 2 November 2012)

94 NZHRC: Human Rights in New Zealand: Nga Tika Tangata O Te Motu (2004); Human Rights in New Zealand 2010: Nga Tika Tangata O Aotearoa

95 Christy Parker an NGO attendee at the CEDAW examination in an interview with the author

challenge when a lot of the issues that we’re trying to report on feel a bit amorphous or emergent and we don’t always have the evidence to support them ... you also need to select your issues. The thinner you spread yourself over a range of issues, the less traction you get from the Committees. It is incredibly difficult to get consensus from the NGO community but you could use the treaty body process more strategically to get greater traction.

As part of the initial consideration of the fifth report on the Covenant, four local NGOs submitted reports to the Committee, as well as one international NGO (Amnesty International) and one private individual (Tony Ellis).

The input of both NHRIs and NGOs is considered essential if the treaty bodies are to be fully informed about the true nature of the human rights situation in New Zealand. The UPR system (which is discussed later) reinforces the roles of both NHRIs and NGOs by creating a specific mechanism for their participation. The impact that NHRIs and NGOS can have on the Committee’s deliberations can be seen in the following chart which identifies the most recent list of issues and the recommendations made by the Human Rights Commission and different NGOs.

Table 2. List of issues for sixth periodic report and those identified by HRC and NGOs

Issue	HRC	NGOs
Info on significant legal developments including case law
Significant policy measures
Measures to disseminate recs.
Withdrawal of reservations		Τ
NPA	Τ
Strengthen & ensure consistency with BORA	Τ	Τ
Update on compliance with Views under OP
Designations under Terrorism legislation
GCSB & privacy	Τ
National security & telecommunications Act	Τ
Closing equal pay gaps & women in managerial positions	Τ
Racial stereotypes /racial hatred on internet/ inequalities of Māori in employment & education	Τ
Elimination of violence against women
Use of tasers	Τ	Τ
Prosecution under Op 8	Τ
Non-refoulement & detention of mass arrivals	Τ	Τ
Combating trafficking		Τ
Drug possession & presumption of innocence	Τ
Privatisation of prisons	Τ	Τ
Resourcing of Waitangi tribunal
Reduction of Māori women in prison	Τ
Measures to combat child abuse		Τ
Underage & forced marriage in immigrant communities		Τ
Extinguishing of Māori rights in Marine & Coastal Area legislation		Τ
Use of TOW in domestic law		Τ
Equal participation of Māori in local govt.	Τ	Τ
Effective decision making involving Māori		Τ

The use of the international treaties by the courts in interpreting legislation is a reflection of their acceptance and impact domestically.

As a matter of international law New Zealand is required to give effect to the standards in the Covenant, however the fact that international treaties are usually not incorporated into New Zealand law means - on one view - that they are not directly enforceable by local Courts.97Most of the human rights treaties are not specifically referenced in domestic legislation. The exceptions are the Commissioner for Children Act 2003 which refers to the Convention on the Rights of the Child in the purpose statement, the Immigration Act 2009, of which Part 5 refers to codification of New Zealand’s obligations under the ICCPR, and the long title of the NZBORA which was enacted to “affirm New Zealand’s commitment to the ICCPR” – even though (as noted earlier) not all of the rights in the Covenant are found in the NZBORA and there is no provision for a remedy – an essential requirement of the Covenant.

The use of the international instruments as interpretative aids by the Courts has changed significantly since the days of Ashby v Minister of Immigration98when Richardson J stated that “if the terms of domestic legislation are clear and unambiguous they must be given effect in our Courts whether or not they carry out New Zealand’s international obligations.” Although Courts were referring to the Covenant before the NZBORA was enacted,99 it has been increasingly referenced in the years since100and it is now accepted practice for the judiciary to strive to interpret legislation consistently with New Zealand’s treaty obligations if possible.101

Over the past decade the Courts have been more willing to accept that international treaty law can be used to supplement interpretation of domestic statutes – particularly in the case of human rights treaties which are considered to have a special status because of the nature of the rights that they protect. Cartwright J, for example, observed on a number of occasions that the long title of the NZBORA is quite transparent in acknowledging its genesis in the ICCPR and the intention of encapsulating the principles in the Covenant.102 Some decisions (notably R v Goodwin103, Simpson v

97This situation also highlights the distinction between the theory of dualist and monist approaches although in the author’s view this is far from conclusive in how the judiciary has responded to international treaties. See also the comments by Sir Geoffrey Palmer in “Human Rights and the New Zealand Government’s treaty obligations” (1999) 29 VUWLR 57 at 60

100 Of all the treaties the ICCPR has been cited most frequently in New Zealand courts. At the time of the fifth report, there were 156 judgments of the superior courts that mentioned the ICCPR: Replies to the List of Issues to be taken up in Connection with the Consideration of the fifth Periodic Report of New Zealand

101 This is consistent with the New Zealand Law Commission’s prediction in Report 34: A New Zealand Guide to International Law and its Sources (1996) at para [71] that in future Courts may be willing to have regard to a treaty in interpreting legislation, even if the treaty has not been incorporated into national law or the treaty did not exist when the statute was enacted. For a discussion on this latter point see Smith v Air New Zealand Ltd [2011] NZCA 20; [2011] 2 NZLR 171 at [25] where the Court was required to construe the reasonable accommodation provisions in the Human Rights Act in accordance with the recently ratified Convention on the Rights of Persons with Disability.

A-G104, R v Poumako105, Hosking v Runting106, Taunoa v A-G107, R v Mist108and Ministry of Health v Atkinson109) have made a significant contribution to the development of the law. Apart from this, a review of cases where the ICCPR has been referred to suggests that in many cases its use remains relatively superficial.110

The majority of references to the Covenant have been in relation to criminal matters rather than the more substantive rights111and where such rights have been invoked, the Courts’ approach has been relatively conservative. An example of this is Shortland v Northern Health Ltd112which involved a decision not to provide access to life saving dialysis treatment. Although the decision complied with medical and ethical guidelines, Mr Shortland sought unsuccessfully to argue that the denial amounted to a breach of the right not to be deprived of life under s.8 NZBORA. In interpreting

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily

The right to life in Art.6 (and by extension s.8 NZBORA) was also relied on in a case involving the impact of the housing restructuring in the 1990s on low income tenants. Although Lawson v Housing New Zealand113was more properly classified as an economic and social issue, Mrs Lawson argued the ICCPR was relevant because civil and political rights could only be enjoyed if conditions (such as adequate affordable housing) were created for their enjoyment. The High Court found that “it was unduly strained to construe the right not to be deprived of life under s.8 as including the right not to be charged market rent ...”114but even if it was wrong about this, the Court considered that the policy could be justified under s.5. The Court went on to elaborate on the implications of the international instruments for the formulation of policy and the role of the court in assessing compliance with the resulting obligations, noting that “Whether New Zealand has fulfilled its international obligations is a matter on which it may be judged in international forums but not in this Court”.115

By contrast, in R v Bain, application by Television New Zealand116 a question arose about lifting a suppression order in the interests of open justice and freedom of expression. In examining the issue, Keith J noted that the openness of the justice system was mandated by both s.25(a)

107 [2007] NZSC 70; [2008] 1 NZLR 429 (cruel and unusual punishment /right to be treated with humanity and dignity/appropriate remedy)

110 See Andrew Butler and Petra Butler “The Judicial Use of International Human Rights Law in New Zealand” (1999) 29 VUWLR 173

111 There have been 13 references to liberty and security of the person (art.9) and 31 to rights of persons charged with an offence (art.14 ) compared to Art.6 (right to life) which was only invoked 6 times

112 [1998] 1 NZLR 443. See also CPAG v A-G [2013] NZCA 402; [2013] 3 NZLR 729 in which CPAG argued that the lack of consideration of New Zealand’s international commitments should result in less deference to the government’s choice of a measure to alleviate child poverty. The Court noted that while that was important, the key focus was whether the right to discrimination was minimally impaired

NZBORA and art.14(1) of the ICCPR and relied on them to allow the removal of the order following conclusion of the criminal trial process. He subsequently commented that “... in this case the provisions of the Bill of Rights, the Covenant and indeed basic common law principles were aligned”.117

As noted already, David Erdos has suggested that the dichotomy which results in civil liberties being considered as more legitimately falling in the domain of the judiciary than public law anti- discrimination claims relating to social policy, is probably predictable, reflecting as it does “a British- descended judicial culture that prioritises, first, those civil liberty values already cognizable by the common law and, second, rights connected with the policing of parliamentary and legal processes”.118 If this is indeed the case, then it may also explain to some extent the significantly greater number of references to the ICCPR than the ICESCR in judicial proceedings.

The ICCPR has also shaped other legislation which does not directly refer to the Covenant such as the Mental Health (Compulsory Assessment and Treatment Act) (MHCAT Act) the long title of which refers to defining the rights of people who fall within the MHCAT Act and is designed to afford better protection for those rights. Part 6 of the Act is dedicated to the rights of patients and must be interpreted consistently with the NZBORA.119 Again Cartwright J in an early decision under the MHCAT Act held that the legislation should be interpreted consistently with the standards in the international instruments, particularly the right to be treated with dignity and respect if detained120and to comply with procedural requirements to prevent allegations of arbitrary detention.121

General Comments are statements issued by the Treaty Bodies on a specific article or general issue which are designed to clarify the scope and meaning of the provisions in a particular treaty and help States in implementing it. They are considered the definitive legal interpretation of the application of the treaties and can be a useful tool for the Courts in deciding the meaning of statutory provisions which have their origins in the international treaties.122

Possibly the most extensive discussion on the application of a General Comment is found in Quilter123where the Court referred to General Comment 18124in an effort to define the meaning of discrimination in relation to same sex marriage. Three of the five judges referred to the Covenant and General Comment, albeit arriving at different conclusions. Thomas J, in particular, relied on the international material for assistance to identify the underlying nature of discrimination. In doing so he explicitly endorsed a “progressive” and modern interpretative approach to discrimination125that required s.19 of the NZBORA to be interpreted consistently with the “principles of equality before the law, the equal protection of the law and the prohibition of discrimination underlying

117 Ken Keith, Application of International human rights Law in New Zealand: paper given at the Judicial Colloquium on the Domestic Application of International Human Rights Norms in Guyana, September 1996 at 13

122 Butler & Butler, above n 83, note that while there have been a large number of references to the ICCPR itself in decisions rendered by the New Zealand Courts, reference to the General Comments and jurisprudence of the HRC has been significantly less frequent: 3.6.21

124 Human Rights Committee General Comment No.18: Non-Discrimination, 37th Session, 9 November 1989

art.26 and confirmed by the Human Rights Committee”.126A similar approach was also adopted by Tipping J who noted that the committee’s approach to the concept of discrimination was of direct relevance to New Zealand jurisprudence on the subject.127

The same General Comment was also used to interpret discrimination in a more recent case. Ministry of Health v Atkinson128involved a Ministry policy that prevented family members from being paid to care for their adult disabled children. The policy was found to discriminate on the grounds of family status, the Court of Appeal citing with approval the General Comment. In Shortland129the Court of Appeal referred to General Comment No. 6130 to explain the duty imposed by s.8 of the NZBORA - possibly because it is more explicit about the ability to limit the right than the balancing exercise in s.5 NZBORA - and the High Court in Martin v Tauranga District Court131referred to a General Comment of the Committee (in this case, General Comment 13) as instructive on how similar matters had been treated in international forums.

A number of decisions by the Human Rights Review Tribunal have also invoked the General Comments to explore the meaning and extent of ICCPR rights.132 Three recent cases - Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland133, Nakarawa v AFFCO New Zealand Ltd134and Meulenbroek v Vision Antenna Systems Ltd135 - required the Tribunal to consider accommodation of the right to manifest one’s religion and the right to freedom of thought, conscience and religion (one of the few non-derogable rights in the Covenant). Reference to the international comments was considered by the Tribunal to be compatible with the purpose of protecting human rights in New Zealand consistently with the long title to the HRA.

The NZHRC’s litigation powers were increased with the 2001 Amendment to the HRA as a way of complementing the tools available for use in its human rights advocacy and educative functions.136It was given the power to join litigation as a party as well as appear as intervener or amicus where complaints were of particular public importance. This is consistent with - and in some sense anticipatory of - developments in other common law jurisdictions where there have been moves to accommodate third party interventions in human rights litigation in the public interest.137

130 Human Rights Committee General Comment No.6: Article 6 (the right to life) HRI/GEN/1/Rev.9 (Vol.1)

132 This is a marked change from the previous Tribunal which in at least one case dismissed international references stating the reality is that the tribunal had to work with the legislation as enacted in New Zealand: Trevethick v Ministry of Health (No. 2) HRRT 13/2006 citing BHP New Zealand Steel Ltd & Anor v O’Dea [1997] ERNZ 667 although this was arguably because the decision focused on the wording of disability in the HRA. The Tribunal noted that in another case “argument about how the legislation ought to be interpreted might very well be assisted by reference to all the material and conventions canvassed in argument”: at [35]

136 Confidential draft to cabinet: The Human Rights Commission’s Litigation Powers

137Sangeeta Shah, Thomas Poole & Michael Blackwell, “Rights, Interveners and the Law Lords” Oxford Journal of Legal Studies, Vol.34, No.2 (2014) 295-324 at 297

Over the past decade the Commission has increasingly intervened in cases where human rights issues have been raised. Consistent with its role in the long title, the Commission raises the international standards where relevant in its submissions. This has given greater prominence to the international treaties and in some cases dictated or contributed to a “rights consistent” outcome. For example, in Atkinson138the Court of Appeal endorsed the approach to discrimination adopted by the Commission and the respondents which was consistent with that in the ICCPR and the General Comment; and in Service & Food Workers Union Nga Ringa Tota Inc v Terranova Homes & Care Ltd139the Employment Court, having been asked to decide what criteria dictate whether an element of differentiation in the remuneration of men and women based on sex exists as a preliminary issue, unequivocally accepted the approach in the relevant international instruments and the concern to eliminate all forms of discrimination in payment based on gender. It specifically endorsed the NZHRC’s view that the principles they espoused extended to the prohibition of such discrimination.140

Any analysis of the impact of the ICCPR would be incomplete without a mention of section 7 NZBORA. Section 7 requires the Attorney-General to report to Parliament if he or she considers a provision of a proposed bill is inconsistent with any of the rights or freedoms in the Bill of Rights. The process is designed to minimise the chances of infringing legislation being passed either unwittingly or deliberately. The opinions (called “vets”) are provided by the MOJ team or Crown Law - in the case of bills introduced by Justice itself. At the time of writing there had been 59 s.7 reports.

The Attorney-General’s obligation to report on inconsistent provisions arises only on introduction of the Bill. This means that when inconsistent provisions are added at committee stages or by way of Supplementary Order Papers there is no express requirement for a report by the Attorney- General. There have been repeated calls for a reform of the process to ensure that s. 7 reports are made in these situations, but so far the Attorney-General has not been receptive.

Despite the fact that interpretation of the NZBORA may reflect the rights in the ICCPR, the Covenant has been referenced relatively infrequently in the vets. Although most engage with the subject matter of the treaty, few have mentioned it specifically.141 Those vets that have include the vet of the Criminal Procedure Bill and the rule against double jeopardy and, in particular, the circumstances when it is permissible and the application of s.5; the Criminal Justice (Parole Offenders) Amendment Bill which sought to impose penalties for people subject to certain sentences who offended while on parole and whether the penalties could be considered proportionate for the purpose of s.5; and the proposal to extend the Prisoner and Victims’ Claims (Redirecting Prisoner Compensation) Amendment Bill in 2011 to prevent the payment of compensation to prisoners for breaches of the NZBORA by the Crown. The vet specifically referred to New Zealand’s obligations under the ICCPR and the obligation to provide a remedy. It also referred to the fifth report and the Committee’s concerns about the impact of the existing

140 At [66]. Although on appeal the Court of Appeal, while recognising the importance of the international standards as useful interpretative devices declined to apply them in interpreting the meaning of equal pay in the Equal Pay Act: Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc. CA631/2013 [2014] NZCA 516

Act on the right to an effective remedy, commenting that if enacted the proposal could “attract further negative attention”.

The number of NZBORA vets and the limited use of the ICCPR, suggest that the international standards have had little impact on the development of policy and legislation particularly since a negative NZBORA vet does not stand in the way of subsequent enactment of the legislation.

The Committee has criticised New Zealand on a number of occasions142for passing legislation that is inconsistent with the NZBORA (and by extension the ICCPR) because the s.7 vets can be disregarded although one commentator has suggested that a negative s.7 vet is not necessarily determinative of inconsistency with the ICCPR or the NZBORA since Courts are not bound by them and can (in fact, must) give a NZBORA consistent interpretation if possible.143

The impact of New Zealand’s ratification of the ICCPR has not been as significant as might have been expected. Arguably the most important effect has been the reference to the Covenant in the long title of the New Zealand Bill of Rights Act.

In a key note speech delivered in 2006 when he was president of the Law Commission, Sir Geoffrey Palmer observed that while New Zealand had prided itself on respecting fundamental human rights before the enactment of the NZBORA, there was a tendency for politicians to claim that New Zealand always honoured fundamental human rights without looking to see whether the claim was valid and, too often, it was not. However, he went to note that:144

New Zealand is now a highly pluralist society with many diverse sets of values shared among its inhabitants which places pressures on fundamental rights but also provides the essential need for their protection. It is not too much to say that the Bill of Rights has changed New Zealand’s legal culture and widened its horizons. Analysis has replaced rhetoric.

The provenance of the NZBORA suggests that it was primarily designed to give statutory recognition to fundamental rights and freedoms that already existed at common law in New Zealand rather than the ICCPR as it is now referenced.145The original version of the Bill in the White Paper did not refer to the ICCPR in the long title (although it did in the preamble and accompanying commentary)146and the paper suggested that, had the Bill been entrenched, it would have ensured a greater guarantee of compliance with New Zealand’s important international obligations.147 However, despite the fact that it does not have superior status and the Courts cannot strike down inconsistent legislation, the ICCPR via the NZBORA has had an effect on the development of jurisprudence in the criminal area, although its role in relation to more substantive rights is less significant. Earlier this year, an interview with one of the members of this project, Sir Geoffrey stated that he considered the courts were “gutless” in enforcing international obligations.

142 Third periodic report CCPR/C/64/Add 10; Fourth periodic report CCPR/CO/75/NZL; Fifth periodic report CCPR/C/NZL/Q/5/Add.1

144 Sir Geoffrey Palmer, “The Bill of Rights fifteen years on”, Keynote Speech Ministry of Justice Symposium: The New Zealand Bill of Rights Act 1990 (2006)

The s.7 vets of prospective legislation which require identification of issues that are inconsistent with the NZBORA has also led to an increased understanding of aspects of the ICCPR – even if a negative report can be subsequently ignored.

The reference to the international human rights treaties in the long title of the HRA has provided opportunities for the NZHRC to reference the Covenant in its legal interventions and submissions on legislation. While it is difficult to state how successful this has been generally, in at least one case

- the legislation on the Electoral Finance Bill - the Commission’s reliance on aspects of the Covenant resulted in a significant reversal of what was proposed. The ICCPR and the Committee’s General Comments have also been influential in shaping the interpretation of discrimination in cases such as Atkinson and CPAG.

In relation to the impact of the Human Rights Committee and the reporting process, the Concluding Observations and Recommendations are necessarily limited by the information the council is provided with. As Dr Niklas Bruun (the Rapporteur on New Zealand for the CEDAW process) observed, “... some sort of concrete guidance is necessary so the country doesn’t dismiss the recommendations as ridiculous”.148 The tendency to simply describe policy measures in country reports without elaboration of their efficacy or whether they have achieved what they set out to, results in encouragement of de jure rather than de facto compliance. This is further complicated by the lack of knowledge of Committee members of the domestic situation although this can be redressed to some extent by informed participation of those attending the examination. The importance of portfolio Ministers leading country delegations to the UN has been cited as a way of informing the dialogue.149

A further contributory factor is the issue of allowing an international body to interfere in New Zealand’s domestic affairs which can lead to the government simply ignoring or dismissing the Recommendations or Concluding Observations. As the Hon Jim McLay observed in relation to compliance with international treaty obligations:150

You’re subjecting yourself to rules set internationally – you may have agreed to them but at the end of the day it’s a set of rules that you may not necessarily have written in that way if you were writing it yourself

The fact that not much is known about the substance of human rights among the population generally is also an issue. This, together with the lack of publicity given to the Concluding Observations, can mean that NGOs and civil society who could most logically agitate for compliance are often largely unaware of what has been suggested.

While it is reasonable to conclude that the Covenant has not realised its potential domestically, it is also the case that the complacency that this seems to reflect can easily be upset by issues impacting on the rights in the ICCPR that New Zealanders feel strongly about such as recent events relating to freedom of expression indicate.

150 See also Krommendijk above n 78 who echoes the concerns of Matthew Palmer relating to the tendency of New Zealanders to trust a democratically elected government to do the right thing without unwarranted external intrusion.

Chapter Three International Covenant on Economic, Social and Cultural Rights (ICESCR)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted and open for signature, ratification and accession by General Assembly resolution 2200A (XXI) on 16 December 1966. New Zealand ratified ICESCR on 28 December 1978.

The Government of New Zealand reserves the right not {to} apply Article to the extent that existing legislative measures, enacted to ensure effective trade union representative and encourage orderly industrial relations may not be fully compatible with that Article.

The Government of New Zealand reserves the right to postpone in the economic circumstances foreseeable at the present time, the implementation of Article 10(2) as it relates to paid maternity leave or leave with adequate social security benefits.

The Covenant is designed to ensure the protection of people as full persons, through the pursuit of economic, social and cultural activities and development. It includes the right to work, to an adequate standard of living, to the highest attainable standard of physical and mental health, and to education and culture. The rights differ from those set out in the International Covenant on Civil and Political Rights (ICCPR) which New Zealand ratified at the same time, as they are progressive rather than absolute. The ICCPR imposes an obligation on States to extend its rights and freedoms to all individuals on ratification, while the ICESCR only imposes an obligation on States to take steps with a view to achieving progressively the full realisation of the rights in the Covenant to the maximum of their available resources.151

The Optional Protocol to ICESCR was adopted by General Assembly resolution A/RES/63/117 on 10 December 2008. New Zealand has not ratified the Optional Protocol which establishes a complaints mechanism that confers the right on individuals or groups to submit matters to the Committee on Economic, Social and Cultural Rights (CESCR) concerning non-compliance with the Covenant. The New Zealand Government’s concern with the Optional Protocol appears to centre on the progressive nature of ICESCR and its subsequent lack of justiciability. Article 2 of the ICESCR states that “each State party ...undertakes to take steps...to the maximum of available resources, with a view to achieving progressively the full realisation of the rights recognised...”152 The lack of justiciability of ESCR has consistently been given as a reason for not incorporating these rights within a legal framework, in particular the NZBORA. During the debate on the enactment of the NZBORA it was argued that economic, social and cultural rights are not value free and impose specific obligations that may change from time to time and therefore were

152 Ministry of Foreign Affairs and Trade, Draft Optional Protocol to ICESCR: NZ Position (5 August 2003) HRD/ESC/2/1.

uncertain and not justiciable and better implemented through legislative and administrative means.153

The lack of specificity of the State’s obligation and the reality that individual or group complaints, if justified, can have an extensive impact socially and financially are legitimate concerns for a State attempting to fulfil its Treaty obligations. The importance attached to the concept of progressive realisation was emphasised by the UN Committee monitoring ICESCR when it noted that it ‘is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions. It describes the nature of the general legal obligations undertaken by State Parties to the Covenant.’ 154

It has been noted by Felner,155however, that Governments may use the notion of progressive realisation as an ‘escape hatch’ to avoid complying with their human rights obligations, claiming, for instance, that the lack of progress is due to insufficient resources when in fact, the problem is often not the availability but rather the distribution of resources. He also notes that the obligation of progressive realisation reflects the fact that adequate resources are a crucial condition for the realisation of ESCR and the contingent nature of a State’s obligations, implying that they may vary from one State to another depending on the State’s economic development.

Although States are not obliged to incorporate ESCR in domestic law, the CESCR has stated ‘in many instances legislation is highly desirable and in some cases may even be indispensable’ and that ‘whenever a Covenant right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary.’156The arguments of uncertainty and cost are therefore not sufficient justification for a blanket denial of legal recognition. The CESCR states that:157

A failure to remove differential treatment on the basis of lack of available funds is not an objective and reasonable justification unless every effort has been made to use all resources that are at a State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority.

A timely and significant debate has begun on how nongovernmental organizations (NGOs) and other civil society actors can most effectively influence states and third party actors to progressively implement their economic, social and cultural (ESC) rights obligations. The debate is timely because too little attention has been paid in the past to this important area of human rights work.

154 Committee on Economic Social and Cultural Rights, General Comment No. 3 -The nature of States parties obligations (Art. 2, par.1) 14/12/90

155 Eitan Felner (2009) “Closing the Escape Hatch: A Toolkit to Monitor the Progressive Realisation of Economic, Social and Cultural Rights,” Journal of Human Rights Practice. 1(3) 402-435

156 Committee on Economic Social and Cultural Rights, General Comment No 3 1990, 3 and 9

157 Committee on Economic Social and Cultural Rights, General Comment No 20, 1990, 13

158 Mary Robinson, “Advancing Economic, Social and Cultural Rights: The Way Forward” Human Rights Quarterly 26 (2004) 866, John Hopkins University Press.

This debate also appears to be happening in New Zealand. In the forward to a recent book examining aspects of ESCR in New Zealand,159 Dame Silvia Cartwright stated:

The International Covenant on Economic, Social and Cultural Rights may not enjoy public recognition of other instruments, yet the rights it contains are of vital importance to every New Zealander, and will become more critical as the allocation of resources comes to the fore locally and internationally.

The debate is evident in the response of the CESCR (the Committee), to the periodic reports of the Government. It is also apparent in the increasing number of cases in which attempts have been made to litigate what are essentially ESCR. It is apparent from both the recommendations and the case law that the traditional approach to legislative and administrative implementation is being challenged as insufficient to meet the compliance requirements under ICESCR.

Under Articles 16 and 17 of ICESCR, New Zealand as a state party that has ratified the Covenant is required to submit reports to the Economic and Social Committee of the United Nations (the Committee) on the measures that have been adopted and progress made in achieving compliance with the rights in the Covenant. New Zealand has submitted reports in 1990, 2001, and 2008. It is apparent from the three reports that consistent themes emerge in the CESCR’s Recommendations. A summary of the Concluding Observations and Recommendations in these reports are set out below to demonstrate the scope and nature of the concerns about New Zealand’s implementation of its obligations under the Covenant. The Recommendations have increased in number and have become more specific and directive in their identification of the expectations of the CESCR for compliance by the Government.

All three reports identify the need for inclusion of ESCR within a specific statutory framework - in particular the NZBORA. Related to this is the recommendation that the Optional Protocol is ratified to provide an individual complaints mechanism. The latest Universal Periodic Review report on New Zealand contains several Recommendations relating to the inclusion of ESCR in the NZBORA or a Human Rights Charter.160 The Government rejected the Recommendations to include ICESR in a Bill of Rights, ratify the Optional Protocol to the ICESCR and to continue the conversation on ESCR recommended by the Constitutional Advisory Panel.161,162

New Zealand Governments have made detailed descriptive responses to the issues raised, and in that sense have been conscientious. They have also consistently relied on progressive realisation of the ICESCR obligations through legislative and administrative measures. This position was made clear in the Government’s response to the Third Periodic Report in the following terms:163

159 Law Into Action: Economic, Social and Cultural Rights in Aotearoa New Zealand, Margaret Bedggood and Kris Gledhill (eds) (2011) Human Rights Foundation of Aotearoa New Zealand/Thomson Reuters, Wellington, vi.

160 Draft report of the Working Group on the Universal Periodic Review: New Zealand 2014, 128.30, 128.31. 128.32, 128.33,

161 The Constitutional Advisory Panel was established as the result of a Coalition Agreement between the National Party and the Māori Party at the 2008 election to engage with the public on constitutional change. The Panel recommended a further constitutional conversation on several issues including ESCR.

162 Report of the Working Group on the Universal Periodic Review: New Zealand, (2014) A/HRC/26/3

163 Implementation of the International Covenant on Economic, Social and Cultural Rights Consideration of reports submitted by States parties in accordance with articles 16 and 17 of the Covenant: New Zealand Addendum Replies by the Government of New Zealand to

Targeted legislation specifically implements numerous rights in the Covenant, such as rights relating to education, conditions of employment, equal pay, parental leave, environment, family law, health, housing, copyright protection and social security. The scope and range of the rights covered by such legislation is extensive, as are the types of action available to enforce these rights...

The Government also noted that the Covenant can be invoked directly through the established domestic law and that, wherever possible, national legislation is interpreted and applied consistently with international obligations. Reference is also made to the Courts’ broad powers of judicial review and cites examples of two cases where judicial review by the Court of Appeal dealt with housing issues.164The response also refers to cases dealing with reasonable accommodation, immigration and injury rehabilitation as evidence of access to legal redress for alleged breaches of the ESCR obligations.165

Throughout the three Reports, the Committee has raised issues relating to cultural rights and economic and social obligations to Māori. The Government response makes extensive references to measures being taken to progress the ESCR of Māori in education, health, employment, as well as measures to protect and respect cultural rights such as the Māori Reserved Land Amendment Act 1997, Te Ture Whenuā Act 1993, Marine and Coastal Area (Takutai Moana) Act 2011, Māori Commercial Aquaculture Claims Settlement Act 2004, Ngāi Tahu (Pounamu Vesting) Act 1997, as well as the Treaty settlement process.166

The Committee’s concluding observations and conclusions are set out in detail to illustrate the range of issues examined by the Committee, as well as the issues that are consistently identified for consideration by the Government.

The Committee welcomed the adoption of the HRA and appreciated the renewal of the mandate, the enlargement of the scope of the Act and the innovative recognition of age as a ground of unlawful discrimination.

The Committee noted with satisfaction the enactment of the Health and Safety in Employment Act 1993; the renewed efforts to strictly implement the Equal Pay Act 1972; repeal of the Labour Relations Act 1987; the increase in the age to 16 for compulsory education and the efforts to increase participation of youth in vocational and skills training.

The Committee also noted the measures to improve employment and educational opportunities for Māori and Pacific Islands people.

the list of issues (E/C.12/NZL/Q3) to be taken up in connection with the consideration of the third periodic report of New Zealand

164 Winther v Housing New Zealand Corporation [2010] NZCA 601; [2011] 1 NZLR 825; and Te Mata Properties Ltd v Hastings District Council

Finally the Committee noted with regret the balance of payments situation that has impeded the full realisation of economic, social and cultural rights.

The Committee expressed concern that the recently enacted NZBORA makes no reference to economic, social and cultural rights and that it is an ordinary statute that can be overridden by other legislation.

The Committee also expressed concern that the extensive reforms in social security and labour legislation in particular the Employment Contracts Act, could negatively affect ESCR, raising questions in relations to Articles 7 and 8 of the Covenant.

The Committee noted with concern that Māori and Pacific Island people continue to figure disproportionately in employment, low salary levels and poor educational and technical qualifications.

Finally the Committee expressed regret that the State did not keep statistical information on malnutrition, hunger and homelessness.

The Committee strongly recommended the reinforcement of the work of the NZHRC and in particular that it had translated the Covenant into all principal languages, and asked that the Covenant be widely disseminated and the subject of community education.

The Committee encouraged the Government to strengthen equity for Māori and Pacific peoples in access to education, training and employment.

The Committee urged the State to carefully monitor the effects of unemployment and reduction in welfare services.

The Committee recommended a review of the impact of the Employment Contracts Act and related legislation.

The Committee expressed the hope that the State party would ratify ILO Conventions Nos. 87 and 98

The Committee urged the collection and publication of statistics to provide information to the Committee in the next Report, in particular statistics on school drop-out rates disaggregated according to race.

Finally the Committee expressed the hope the State party would consider withdrawing its reservations to the Covenant.

The Government’s response to the recommendations was reflected in the Second Periodic Report.

The Committee appreciated the continuing efforts to comply with the Covenant’s obligations and welcomed the Human Rights Amendment Act 2001 with the broader mandate and developing a plan of action for human rights.

The Committee also appreciated the efforts to ensure Māori enjoyed their rights under the Covenant.

The Committee further appreciated the introduction of the Employment Relations Act 2000; the imminent ratification of ILO Convention No 98; the introduction of paid parental leave legislation, the intention to withdraw the reservation under article 10(2); and the information on the right to water.

The Committee noted with regret the view expressed by the State party that ESCR are not necessarily justiciable.

The Committee noted with concern the high level of young people that were unemployed The Committee noted with regret the non-ratification of ILO Conventions 87, 117 and 118.

The Committee was concerned with the persistence of a gap between wages of women and men in contradiction to the principle of equal pay for work of equal value.

The Committee was also concerned with persistence of family violence; the high suicide rate amongst young people; the level of poverty and lack of indicators to assess effectiveness of measures to combat it: the general health of Māori; the lack of provision for health services in rural areas; and finally persistent inequalities for Māori in access to education.

The Committee pointed out the State party remained under an obligation to give full effect to the Covenant in its domestic legal order, providing for judicial and other remedies for violations of economic, social and cultural rights.

The Committee invited the State party to submit in the next Report its views and comments on the Optional Protocol to the Covenant to be examined by the open-ended working group established by the Human Rights Committee in 2003.

The Committee recommended the NZHRC take up ESCR as a comprehensive topic and ensure they were reflected in the National Plan of Action for Human Rights.

The Committee recommended strengthening efforts to reduce youth unemployment and requested further information in the next report.

The Committee encouraged ratification of ILO Conventions 87, 117 and 118 and withdrawal of the reservation to Article 8 of the Covenant.

The Committee recommended intensification of efforts to reduce inequality in the workplace, including ensuring equal pay for work of equal value.

The Committee recommended targeting of social security benefits so as not to lead to decreasing social protection, and wanted accessible information on social protection to be widely disseminated to all members of the community.

The Committee recommended intensification of measures to combat domestic violence, including statistical data.

The Committee recommended effective measures to address the high suicide rate particularly amongst young people, including information in the next Report.

The Committee recommended the adoption of a national plan to combat poverty with clear indicators to assess its impact.

The Committee requested the adoption of effective measures to improve Māori health and access to education; and equal access to health services in rural and remote areas.

The Committee encouraged the provision of human rights education in schools at all levels and raising the level of awareness of ESCR amongst State officials and the judiciary.

Finally the Committee requested the dissemination of its recommendations amongst State officials and the judiciary and that the State consult NGOs and other civil society institutions when preparing the third periodic report.

The Government’s response to these recommendations was reflected in the Third Periodic Report.

The Committee welcomed the ratification of the Optional Protocol to the Convention against Torture, the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention on the Rights of the Child, and the endorsement of the Declaration on the Rights of Indigenous People.

The Committee welcomed a range of measures to ESCR in particular recognition of sign language as an official language; entitlements for refugees and asylum seekers; new education curriculum; adoption of Civil Union Act 2000; Relationships (Statutory References) Act 2005; the introduction of paid parental leave and adoption of legislation prohibiting corporal punishment by parents.

The Committee noted practical achievements in ESCR in particular, immunisation amongst Māori; low rates of hardship amongst elderly and reduction in unemployment and also the mainstreaming of human rights and the work of the HRC.

The Committee urged the State party, in the context of the ongoing constitutional review process, to give the Covenant full effect in its domestic legal order and called on the State party to ensure that redress for violations of the Covenant rights could be sought through the State party’s varied recourse mechanisms. The Committee also requested information on court cases in the next periodic report.

The Committee urged the State party to incorporate ESCR into the NZBORA. Further the Committee called on the State party to ensure competent authorities reviewed draft laws, regulations and policies to see that they were compatible with the Covenant and that additional efforts were made to raise awareness of ESCR among parliamentarians and policy-makers.

The Committee called on the State party to ensure inalienable rights of Māori were firmly incorporated in legislation and implemented; that measures be taken to guarantee redress for violation of Māori rights; and to strengthen efforts aimed at eliminating disadvantages faced by Māori and Pasifika in the enjoyment of ESCR through specific equality targets.

The Committee called for introduction of incentives and special measures to promote employment of people with disabilities; reasonable accommodation and adequate health care; and recommended the collection of data to monitor enjoyment of ESCR by people with disabilities and asked for the provision of this information in the next report. It further recommended the position of Disability Commissioner be established on a permanent basis.

The Committee called on the State party to promote equal employment opportunities in areas not dominated by one sex; amend legislation on equality in employment to provide for equal pay for work of equal value and apply the Job Evaluation Tool to this effect; and to set a clear timeline to correct the gender wage gap in the public sector.

The Committee recommended a strategy to boost the skills and employment of young people; to introduce a statutory maximum number of work hours and to investigate all allegations of violations of labour laws.

The Committee recommended intensifying measures to combat family violence including a framework for implementing recommendations of the Taskforce for Action on Sexual Violence; and to systematically collect data on violence and bullying in schools and monitor the impact on student well-being of measures to reduce bullying and violence.

The Committee called for specific measures to increase the number of childcare facilities to ensure disadvantaged groups have access.

The Committee recommended the adoption of a human rights approach to housing reconstruction after the earthquake in Christchurch; and to ensure adequate housing for everyone, in particular the need for social housing.

The Committee recommended the right to affordable and safe water remains guaranteed, including in the context of privatised water.

The Committee requested in the next periodic report information on health services and sewage systems in rural and remote communities.

The Committee recommended strengthening measures for access to smoking cessation programmes particularly among Māori and Pasifika.

The Committee recommended the State bore in mind the obligation to protect Māori culture. The Committee requested in the next periodic report information on ESC measures in the Tokelau.

The Committee encouraged an increase in the level of contribution of official development assistance with a view to attaining the UN target of 0.7% of GNI.

The Committee recommended the adoption of the withdrawal of the reservation to Article 8 of the Covenant.

The Committee encouraged the signing and ratification of Convention on Protection of the Rights of all Migrant Workers and Families; the International Convention for the Protection of all Persons from Enforced Disappearance; the Optional Protocol for the Convention on the Rights of Persons with Disabilities, and the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

The Committee recommended taking into account these recommendations in the next national human rights action plan and continuing support for the work of the NZHRC, NGOs and members of civil society in the development and implementation of the plan.

The Committee requested the dissemination of the recommendations among all levels of society, particularly state officials, members of judiciary and civil society organisations.

The next Periodic Report is not due until 2017 and it is too early to assess the Government’s response to the recommendations. The response to the Universal Periodic Report does, however, indicate a likely Government response on some key issues. For example, the Government continues to interpret its obligation to positive realisation as not including specific incorporation of ESCR in the NZBORA.

New Zealand has a history of cross party support for international human rights treaties, including ICESCR. During the discussions preceding the adoption of the UDHR, New Zealand’s representative argued for the inclusion of social and economic rights. The rationale for the position was described by Dr Aikman as follows:170

My delegation ... attaches equal importance to all the articles ... At the same time we regard with particular satisfaction the place which is given in the declaration to social and economic rights. Experience in New Zealand has taught us that the assertion of the right of personal freedom is incomplete unless it is related to the social and economic rights of the common man. There can be no difference of opinion as to the tyranny of privation and want. There is no dictator more terrible than hunger. And we have found in New Zealand that only with social security in its widest sense can the individual reach his full stature. Therefore it can be

understood why we emphasize the right to work, the right to a standard of living adequate for health and wellbeing, and the right to security in the event of unemployment, sickness, widowhood and old age. Also the fact that the common man is a social being requires that he should have the right to education, the right to rest and leisure, and the right to freely participate in the cultural life of the community.

These social and economic rights can give the individual the normal conditions of life, which make for the larger freedom. And in New Zealand we accept that it is the function of government to promote their realisation.

This reflected the policy of the Labour government elected in 1935 to implement a social security system that provided for economic and social wellbeing. The policy framework developed from 1935 to 1984 saw the State as the primary provider of social well-being including the provision of education, health, housing and assistance in time of need, as well as the protector of individual rights and freedoms.

The cross party support for the role of the state in recognizing and protecting individual rights and freedoms was evident in the parliamentary debates on the Human Rights Commission Bill in 1976/77 which paved the way for the Government to ratify ICESCR in 1978. Although the Human Rights Commission Act (HRCA) was considered by some to be sufficient for ratification, in reality the 1977 Act was not human rights legislation. Rather it was a statutory framework to provide individuals with redress for discrimination on limited grounds, namely sex, marital status, religious and ethical belief The Act did not provide the individual with a positive claim to observance of human rights. This was noted during the parliamentary debates and an attempt was made during consideration of the Bill to include the UDHR in a schedule to the Act but this was defeated “on technical grounds”, namely that other Covenants had been recognized in addition to the UDHR. As the Chair of the Select Committee noted in debate this would “take many pages of presumably legal jargon, which not many people would understand”.171 As a compromise the Bill was amended to include a long title that included “to promote the advancement of Human Rights in New Zealand in general accordance with the United Nations International Covenants on Human Rights”.

Although the parliamentary debate did not mention ICESCR, it reflected the general approach to human rights at that time. Both political parties accepted the role of the State was to protect individual human rights. How this was to be achieved and what exactly a human right was revealed differing approaches. It was clear, however, that ESCR were not to be the subject of individual legal enforcement. Successive governments have argued that New Zealand’s commitments under ICESCR have been realised by devising and developing administrative systems, policies and legislation to implement the obligations under the Convention and relied on public policy expressed through general Acts of Parliament such as the Education Act 1989, New Zealand Public Health and Disability Act 2000, Social Security Act 1964 and the Housing Corporation Act 1974 for compliance with ICESCR.

In effect New Zealand has argued the best way to implement ESCR obligations is through the establishment of a legislative and policy framework that sets a standard for all citizens to access ESCR. There is, however, no explicit reference to ESCR in Cabinet policy making or legislation.

There is a reference to enact legislation and policy consistent with the NZBORA and the HRA but only the Cabinet Manual makes a reference to compliance with “international obligations”.172

Although the shift to a neo-liberal policy framework from 1984 has altered the delivery of public policy through greater involvement of the private sector via contracted out mechanisms, there remains cross party opposition to a rights approach to ESCR. A comprehensive assessment of New Zealand’s policy and practice was commissioned by the Human Rights Commission in 2003, the report being published in 2007.173The authors noted that while there has been increased interest in ESCR, there remains a reluctance to adopt a rights-based approach to ESCR because of the uncertainty over what it would require. The lack of precision in the language of ESCR means the extent of the State’s responsibly is contestable and controversial. The authors also referred to the absence of an established judicial tradition or quasi-judicial elaboration of ESC rights.

The New Zealand judiciary has traditionally taken a cautious approach to human rights issues. David Erdos175argued that both the cultural self-perceptions of the judiciary and the context within which NZBORA has been implemented are relevant to gaining an understanding as to why the judicial response has been relatively conservative and mainly directed at the implementation of civil and political rights. He concludes:176

Other than judicial culture itself, factors of particular importance within this structure include the nature of the NZBORA enactment and remedies available under it, the attitude of the political branches to the agenda of divergent social actors ... and the political and legal resource set of the same actors.

The importance of the political and policy environment on the construction of ESCR obligations and its influence on the judicial approach to these issues has been explored by Opie in a more recent article.177He considered that the changes in public policy since 1984 have detrimentally affected citizens’ economic social and cultural rights. In support of this he analyses the case of Lawson v Housing New Zealand178. Mrs Lawson, a state tenant, sought a judicial review of the Minister of Housing’s decision to transfer state houses to a private company that then introduced market rents resulting in a rise of over 100%. Amongst the arguments in support of the judicial review was that the policy was in breach of s.8 of the NZBORA relating to a right to life and the government’s obligations under international treaties including ICESCR.

The action was dismissed in the High Court, the judge stating that the facts required an unduly strained interpretation of s.8 and that s.5 applied as the policy and actions were a reasonable limit on the rights of Mrs Lawson. Basically the Judge found that the decision on rents was a purely commercial decision over which the court had no jurisdiction and the action was therefore outside the scope of judicial review. In other words the issue was not justiciable.

174 A selection of cases in which economic, social and cultural rights are referred is included in Appendix 4.

177 Joss Opie, (2012) “A Case for Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights Act 1990” 43 VUWLR 471 at 473.

Opie considers that the inclusion of ESCR in the NZBORA would have enabled citizens to be educated on the importance of both their CPR and ESCR fundamental rights and freedoms and would have provided an influence on policy makers to uphold those rights and freedoms. He states:179

All of these reasons providing CPR with a special status in the NZBORA applied with equal force to ESCR (and continue to apply today). ...The inclusion of ESCR in the NZBORA could have slowed the pace of the reforms: tempered their severity by contributing to a more cautious approach from the outset; encouraged more robust and evidence-based policy; promoted ESCR through expressly requiring ESCR-consistent interpretations of legislation where such interpretations were open; and led to the identification of conduct that was inconsistent with ESCR (thereby protecting and upholding these rights). Justiciable ESCR could have provided an important and democratic check on the State’s power, particularly given the context of democratic failure in which the reforms occurred.

While there has been a relatively conservative approach to exploring the potential and opportunities for implementing social and economic rights by policy makers and the judiciary, there has recently been a renewal of social activism and litigation in an attempt to give practical meaning to ESCR. This activism has come primarily from the response of the Human Rights Review Tribunal to cases seeking a remedy for discrimination on grounds involved litigants’ social or economic well-being. While it would be inaccurate to suggest governments have altered their fundamental objection to the recognition of ESCR, litigants are increasingly resorting to legal avenues to pursue recognition of these rights. There is some evidence of political recognition of serious issues of social and economic inequality that have arisen from the adoption of the current neo-liberal policy framework180but no change in approach to incorporation of these rights into the NZBORA.

Legal enforcement of the ESCR statutory obligations has traditionally been through the procedural remedy of judicial review. The limited opportunity to challenge government policy through the judicial review process was illustrated in the case of Daniels v Attorney-General181which involved the special education policy introduced by the Minister of Education in 1998. The plaintiffs argued their children should have a choice of attending special education facilities where mainstreaming was inappropriate or ineffective. The policy had disestablished special education facilities and the argument was this policy was in breach of s. 3 (right to free primary and secondary education) s. 8 (equal rights to primary and secondary education) and s. 9 (right to provision for special education if qualified) of the Education Act 1989.

Although the High Court held there had been a breach of the children’s right to an education, the Court of Appeal overturned the decision on the grounds the legal obligation on the state was to provide regular and systemic education and this obligation was not justiciable, although specific rights may be actionable under the Act. Keith J noting:182

180 The debate on inequality in New Zealand is reflected in Question Time in Parliament in 3 Inequality, Economic and Social- Rate over Last 30 Years and Inequality, Economic and Social-Income Gap, www.parliament.nz.

...while there are rights under the 1989 Act that can be enforced by court process [such as natural justice on suspension and expulsion], these rights do not include generally and abstractly formulated rights of the kind stated by the [High Court] Judge.

The Court also noted the difficulty of judicial supervision to enforce general standards of education. Justiciability, then, was again an issue in this case, the Court drawing a line between specific individual rights and general rights in the Education Act.

A statutory attempt to reconcile the increasing demand for a rights approach and the government’s resistance because of the uncertain financial and social implications of such an approach was made in the 2001 Amendment to the Human Rights Act, Part 1A. Part 1A of the Act gave the Human Rights Review Tribunal the power to issue a declaration that an enactment of a policy is inconsistent with the right to freedom from discrimination provided for in s. 19 of NZBORA. The Minister responsible for the offending enactment is then required to report to Parliament the existence of the declaration and within 120 days of all appeals being exhausted must respond on what action it intended to take. The declaration did not declare the offending enactment invalid or require a change of policy. The right of Parliament to make the law and government policy was preserved under this arrangement but it did provide a transparent process whereby human right breaches could be identified and made public while preserving the constitutional notion of parliamentary sovereignty.183The 2001 Amendment procedure was a back door attempt to allow ESCR to be litigated in the Tribunal and Courts by providing a remedy for breach of ESCR through the NZBORA and the right to be free from discrimination in s.19.

The Atkinson Case184was the first substantive case under the Part 1A procedure that demonstrated how the 2001 Amendment works in practice as well as providing a practical example of the difficulties associated with the current statutory regime. In this case the Tribunal issued a declaration of inconsistency in respect of an allegation of discrimination on the grounds of family status by a group of families who were denied financial support for the care of adult children with disabilities. After the Minister of Health received the declaration an appeal was lodged with the High Court that upheld the Tribunal’s decision, as did the Court of Appeal when the Ministry appealed the High Court decision. The Government then decided not to appeal to the Supreme Court but entered negotiations with the families to determine the payments to which they would be entitled.

As a result of the negotiations the Government introduced the New Zealand Public Health and Disability Bill (No.2) 2013. (NZPHDA) The Bill acknowledged the claim of the litigants to some compensation, it also limited the Crown’s liability to pay family members who provide support to their disabled family members. It reasserted the right of the Crown and District Health Boards not to pay or fund family members to provide health and disability support and that such a policy was not considered to be unlawful discrimination under the Human Rights Act. The Bill was enacted and is now law regardless of the section 7 NZBORA assessment that the Amendment authorised a breach of the non-discrimination right guaranteed by s. 19(1) of the NZBORA. Further the section 7 vet noted the legislation appears to limit the right to judicial review because it would prevent a person

183 Royden Hindle, The Human Rights Review Tribunal: Problems and Possibilities, (2013) www.roydenhindle.co.nz.

from challenging the lawfulness of a decision on the basis that it was inconsistent with s 19(1) of the Bill of Rights Act.185

In a subsequent case, Spencer v Attorney General186 which related to the new NZPHDA legislation and the refusal of the Ministry of Health to consider Mrs Spencer’s application for payment of disability support for her son, Justice Winkelmann held that the Ministry had acted unlawfully and in breach of Mrs Spencer’s rights when it refused to consider her application stating it was acting in accordance with the new policy that was supported by the legislation. The case has been appealed by the Attorney-General who is arguing that the Court erred in its interpretation both of what is meant by a “family care policy” and Part 4A of the Public Health and Disability Act.

Although the ICESCR has not been formally recognised legally this does not mean the Courts cannot rely on the provisions of a treaty if a relevant issue comes before the courts. In New Zealand Air Line Pilots Association Inc v Attorney-General the Court of Appeal held that:

We begin with the presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations ... That presumption may apply whether or not the legislation was enacted with the purpose of implementing the relevant text ... In that type of case national legislation is naturally being considered in the broader international legal context in which it increasingly operates. (269, 293).

A recent application of this principle is found in Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care ltd where the judgment of Full Court noted:187

Statutes should be interpreted in a manner that is consistent with New Zealand’s international obligations. While international obligations cannot affect the meaning of statutory words that are clear, they may influence the interpretation adopted where they are open to different meaning.

In this case the Employment Court had to decide a number of preliminary issues relating to the scope of any subsequent inquiry conducted under s.9 of the Equal Pay Act 1972. In essence the SFWU was bringing a pay equity claim on behalf of care workers. In the course of the judgment the Court referred to the International Labour Organisation’s (ILO) Convention Concerning Equal Remuneration for Men and Women Workers of Equal Value188that had been ratified by New Zealand in 1983. The Court also considered Article 7 of ICESCR relating to fair wages and equal work for equal value, and Article 11 of CEDAW that requires the elimination of all discrimination against women in employment and in particular the right to equal remuneration and equal treatment in respect of work of equal value. The Court decided amongst other matters that it had jurisdiction to state general principles for the implementation of equal pay.

The Employment Court judgment implicitly, if not explicitly, acknowledges progressive realisation of ESCR. The Court said:189

185 Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the New Zealand Public health and Disability Amendment Bill (No2) (6 May 2013)

History is redolent with examples of strongly voiced concerns about the implementation of anti- discrimination initiatives on the basis that they will spell financial and social ruin, but which proved to be misplaced or have been acceptable as the short term process of the longer term social good. The abolition of slavery is an old example, and the prohibition on discrimination in employment based on sex is both a recent and particularly apposite example.

The Employment Court decision was appealed to the Court of Appeal that dismissed the appeal. In the course of the judgment the Court affirmed:190

It is now settled law that there is an interpretative presumption that Parliament does not intend to legislate contrary to New Zealand’s international obligations

In support the Court of Appeal cited not only the New Zealand Air Line Pilots Association but also Ye v Minister of Immigration; Zaoui v Attorney General; and Sellers v Maritime Safety Inspector. This principle would appear to be now firmly established in New Zealand.

The SFWU pay equity case highlights that the fact that ESCR are to be found in ILO conventions as well as the United Nations Human Rights Treaties. The Employment Relations Act 2000 makes specific reference to ILO Conventions 87 and 98. Reference by the courts to ILO conventions has also been observed in recent decisions in the European Court of Human Rights (Demir and Baykara v Turkey). New Zealand was a founding member of the ILO and ratified many of the ILO conventions. Although the former industrial conciliation and arbitration system functioned as a closed ‘legal’ system, since the enactment of the Employment Contracts Act 1991 and the Employment Relations Act 2000 employment rights are subject not only to employment statutes, but also the common law and international conventions in a way that has not happened in the past. The construction of employment rights as human rights has opened a new line of argument in litigation. In 2013 Miller and Sissons191argued that both the ICPCR and ICESCR are relevant to the enforcement of employment rights, including the right to collective bargaining. At a recent NZ Law Society Employment Law conference there were two papers illustrating the increasing reliance on human rights arguments in the context of economic rights.192 Dr Harrison QC issued a warning, however that “Running human rights arguments in an employment law (or any other) context requires more than enthusiasm. It requires both application and discernment.”193

A similar warning also came from Sir Kenneth Keith in his comments on recommendations made by the Human Rights Committee in 2010 and the Committee on Economic, Social and Cultural Rights in 2012 to the effect that concern was expressed over the fact the NZBORA does not take preference over ordinary law, and that the NZBORA does not incorporate ESCR. He notes in response to these recommendations:194

Perhaps the question may be asked is whether the committees are giving more weight than is appropriate to form rather than to substance, or in legal terms, to obligations of means rather than of result. ... Whatever the answer to the question I have asked may be, the process does

191 Edward Miller & Jeff Sissons (2013) “A Human Right to Collective Bargaining?” Paper presented at New Zealand Labour Lawyers Conference, 22 November 2013.

192 Andrew Butler, “Human Rights in Employment – Discrimination and Privacy Issues”, 10th NZLS Employment

Law Conference, (2014) 149; Rodney Harrison, “Employment Law and Human Rights - A Crucial Interface”, NZLS Employment Law Conference, (2014) 177.

194 Sir Ken Keith, (2013) “New Zealand and International Law: 1963-2013” 25 NZULR 718 at 736

have the real value to the wider legal and administrative system of emphasising an overall view. In particular, it helps emphasise the link between international law and constitutional law

Sir Kenneth’s comment reflects the traditional judicial reluctance to incorporate ESCR into the NZBORA while acknowledging the constitutional reality that New Zealand is ambivalent in judicial decision making on matters considered political. Sir Geoffrey Palmer more explicitly rejects the incorporation of ESCR into the NZBORA after a consideration of possible reform of the NZBORA, stating:195

I do not see judicial encroachment into key government activity would be acceptable in New Zealand and neither does it seem to me necessary or desirable. It runs contrary to our traditions and our political culture. Neither do I believe our judges have the background or capacities to make that sort of decision. ...These issues are properly the stuff of politics. Politics is about who gets what, when and how. Politics is the language of priorities and priorities should not be set by the courts.

The role of civil society in this context is to hold the state to account. This is recognised in the Committee recommendations that NGOs be able to participate in the preparation of government reports. The consultative role was formally approved by the full committee of the Economic and Social Council of the United Nations (ECOSOC) that decides which NGOs have consultative accreditation. In an analysis of the evolving role of NGOs in realising ESCR including their role in ensuring Governments respect, protect and fulfil those rights, Walters notes the increasing number of NGOs that have embraced rights language in their advocacy work when lobbying for legislative and policy change.196Examples of this include submissions to Parliamentary Select Committees, submissions in response to Government’s Periodic Reports relating to ICESCR, hosting events on ESCR issues and making public statements. NGO submissions on the Third Periodic Report on ICESRC included submissions from Aotearoa Indigenous Rights Trust, Amnesty International and the Peace Movement Aotearoa, as well submissions from international NGOs Human Rights and Tobacco Control Network, the International Baby Food Action Network and the International Disability Alliance. The NZHRC also made a submission. Submissions to the UPR also included reference to ICESCR.

In accordance with the Committee recommendations for the NZHRC to take a lead role in the understanding and implementation of ESCR, it has been in the forefront of fulfilling this recommendation. For example, the commissioned research previously referred to197provided the basis for an informed discussion of the challenges and opportunities to fulfilling the State’s obligation of progressively realizing those rights. The NZHRC has also been active in commenting on the Government Periodic Reports and the respect with which the NZHRC shadow submission was considered by the Committee is evidenced by the fact that the Committee accepted most of its recommendations. The development of the New Zealand Action Plan for Human Rights by the NZHRC was also part of the strategy to pursue ESCR at different levels. The increase in judicial

195 Rt Hon Sir Geoffrey Palmer (2013) “The Bill of Rights After Twenty-One Years” 11 NZJPIL 257 at 286

196 Vanushi Walters, “The Work of NGOs in Advancing Economic, Social and Cultural Rights”, in Bedggood & Gledhill Above n 162, 389

review of ESC issues can be attributed to an activist approach taken by the NZHRC in support of litigants.

The principal conclusion from this analysis is that unless ESCR are incorporated within a statutory framework, whether that is the NZBORA or some other legislation, it will be difficult for individual litigants to legally enforce the implementation of ICESCR obligations. The primary means for doing so will remain ensuring public policy and legislation reflect the international obligations although explicit reference to ICESCR in the Cabinet Manual would ensure greater attention is given to ESC obligations during the policy making process. Greater information and knowledge of ICESCR amongst NGOs and the community would increase the level of awareness of the ICESCR and expectations that Governments take active steps to implement these obligations.

Chapter Four Convention on the Elimination of all forms of Racial Discrimination (CERD)

The International Convention on the Elimination of Racial Discrimination (CERD) was the first thematic treaty in the international human rights framework. CERD came into force in 1969 and requires States Parties to:

The Government registered no reservations to CERD although it did to Art.20 of the ICCPR which relates to inciting racial hostility and reads:

The Government of New Zealand having legislated in the areas of the advocacy of national and racial hatred and the exciting of hostility and ill will against any group of persons, and having regard to the right to freedom of speech, reserves the right not to introduce further legislation with regard to Article 20.

The apparent inconsistency – namely, the Government’s position that domestic legislation complies with CERD by prohibiting incitement of racial hostility in the Human Rights Act 1993 (HRA) – has led the Human Rights Committee to consistently request New Zealand remove this reservation.

As became the norm with later treaties, an analysis of domestic legislation was first carried out to ensure New Zealand could comply with the obligations in the treaty in good conscience on ratification. CERD requires access to a complaints process to address complaints of racial discrimination in certain areas of public and private life.198 As there was no existing mechanism, the Race Relations Act 1971 (RRA) was enacted. The RRA created the role of the Race Relations Conciliator and established a conciliation process. The Courts were seen as a last resort and best used as a threat to achieve settlement, the rationale being that:199

Conciliation and investigation procedures have better chances of reaching solutions of positive redress while sanctions resulting from judicial procedures can be reserved in particular for cases where the former procedures have failed.

Conciliation and investigation procedures were also considered to be more educational and had the advantage of being more accessible to the interested parties but, despite the almost universal

199 Ken Keith, “The Race Relations Bill” in Essays of Race Relations and the Law in New Zealand, Sweet and Maxwell (1971) referring to Report of the Meeting of Experts on Discrimination in Employment and Accommodation, ILO, 231 October 1966 quoted in Special Study of Racial Discrimination in the Political, Economic, Social and Cultural Spheres 23 July 1970 E/CN.4/Sub.2/307at [108]

endorsement of this approach at the time the RRA was enacted, reservations were already being expressed about how efficient conciliation was in achieving societal change in areas such as structural discrimination.

The RRA was amended in 1977 when the Human Rights Commission Act 1977(HRCA) was introduced. The HRCA extended the grounds of unlawful discrimination to sex, marital status and religious or ethical belief in anticipation of New Zealand’s ratification of the ICCPR and ICESCR. Some amendments were made to the RRA to ensure the compatibility of the legislation and it RRA was strengthened by providing a new procedure for pursuing complaints that could not be resolved by conciliation, extending the Conciliator’s jurisdiction and increasing the penalties for infringement.

The HRCA was primarily an antidiscrimination statute. When the Minister of Justice reviewed the Act after 10 years, the Commission recommended a substantial overhaul including structural, procedural and jurisdictional changes. A Human Rights Amendment Bill was introduced in 1992 and came into effect in 1993. The 1993 Act created a new provision relating to racial harassment and introduced section 61 to replace section 9A of the RRA which had been repealed in 1989.

The HRA has been amended a number of times - in 1994 the status of the Race Relations Conciliator was formalised and in 2001 a major overhaul of the Act merged the Office of the Race Relations Conciliator with the Human Rights Commission and replaced the role of Conciliator with that of the Race Relations Commissioner. A Bill currently before Parliament will do away with the title of Race Relations Commissioner (although substantially retaining the functions) making the incumbent simply another Commissioner.

Successive governments have complied with the requirement to submit periodic reports to the CERD Committee (the Committee), beginning with the first report in 1973 to CERD’s ninth session. Since 1986, government reports have been consolidated – for example, the eighth and ninth reports were submitted as one document in 1990. The quality of reporting varies, as do the consistency and quality of the Committee’s observations.

The Committee’s major concerns which emerge from the Concluding Observations since 1995 are:

De jure compliance with CERD appears good and indicators demonstrate that over the past 25 years New Zealand has adopted a great number of policies to give effect to the recommendations suggested by the CERD Committee.200However, outcome indicators which measure the defacto qualitative enjoyment of rights, suggest that the policies need to be strengthened in order to be genuinely effective. As the former Race Relations Commissioner put it, “It’s a lot about what we do, but there’s not much of what has changed”.201

One issue that the CERD Committee repeatedly includes as a Recommendation is that the government should make a declaration under Article 14. Article 14 recognizes the competence of the CERD Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by a State Party. The procedure is optional, so States have to explicitly recognise the Committee’s competence to receive complaints. New Zealand’s omission to do so compares unfavourably with its acceptance of the Human Rights Committee’s recommendation to consider complaints about breaches of human rights in relation to their respective Covenants and Conventions where such provisions exist.

There has never been a satisfactory explanation for the Government’s position on Article 14. One reason for it may be that the Government simply considers existing domestic and international complaint procedures (including under the ICCPR) are adequate, particularly when coupled with the early warning and urgent action procedures that allow those who are (or are about to be) subjected to racial discrimination by a State party to have their situation considered by the CERD Committee - these procedures were invoked in 2005 when the Committee considered a communication about the Foreshore and Seabed legislation and requested the State to closely monitor the implementation of the Act, its impact on Māori and the developing state of race relations in New Zealand. The CERD Committee invited the government to report on the implementation of the Act in its report to the Committee the following year.

In its first submission to the UPR in 2009, the Government stated that it “recognised the importance of individual complaint procedures, particularly in relation to issues as serious as racial discrimination under Article 14 ...”202and while recognition of Article 14 had not been actioned at the time of the second UPR in 2014, the chart on progress towards compliance in 2011 stated that New Zealand had accepted the recommendation and that the Ministry of Justice was considering whether to recognise the competence of the CERD Committee to hear individual communications.

202 National report submitted in accordance with paragraph 5 and the annex to Human Rights Council resolution 16/21 – New Zealand

The Special Rapporteurs on the Rights of Indigenous People have twice visited New Zealand.203 In 2005, Rodolfo Stavenhagen visited to gain a better understanding of the situation of indigenous people and issues such as the treaty settlement process, the implications of the Foreshore and Seabed Act, public policies designed to reduce social inequalities between indigenous people and others, the provision of basic social services such as education, housing and health care and the revitalisation of Māori. His recommendations included building on constitutional debates to ensure constitutional reform that would recognise the right to self-determination, granting the Waitangi Tribunal legally binding enforceable powers and allocating it more resources, entrenching the NZBORA and amending or repealing the Foreshore and Seabed Act. A number – such as the issues relating to the Foreshore and Seabed Act - were also reflected in the recommendations of the CERD Committee.204

Rodolfo Stavenhagen’s successor, James Anaya, visited in 2010 partly to follow up on the work of his predecessor, but the main purpose of his visit was to examine the process for settling historical and contemporary claims based on the Treaty. In his report he described the Treaty Settlement Process as “one of the most important examples in the world of an effort to address historical and ongoing grievances of indigenous peoples.” While noting that settlements already achieved had provided significant benefits in several cases205he reiterated concerns about the status of the Waitangi Tribunal, the high rates of Māori incarceration and the continuing social and economic disadvantage of Māori.

As with the other treaty bodies the CERD Committee considers that NHRIs have an important role to play in the reporting process. They can provide information on issues relating to the consideration of reports of States Parties in both formal and informal meetings outside the Committee’s working hours to members of the Committee, as well as respond to requests to clarify or supplement such information. NHRIs are also recognised as fundamental to the dissemination and implementation of the Treaty Body Recommendations on the ground. As one commentator has observed:206

NHRIs, due to their special status, make their interventions more palatable to governments, therefore facilitating accountability and compliance. This role is intensified and extremely relevant in dire situations where there is a breakdown in communication between governments and civil society.

Although it is now generally accepted that NHRIs and civil society have a useful contribution to make to the cyclical treaty body reporting processes207this was not always the case. NHRIs have only had speaking rights at the UN since 2005 and even now this is limited to those with

203 There had also been earlier official visits by UN human rights experts, for example, Erica-Irene Daes, Chairperson- Rapporteur of the Working Group on Indigenous Populations in 1992, and Miguel Alfonso Martínez, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations in 1997.

204 Although the Foreshore and Seabed legislation was eventually repealed, the former Race Relations Commissioner, Joris de Bres, credits the Maori Party rather than the UN mechanisms with achieving the change - albeit with the added credibility provided by the UN criticism. Interview with Joris de Bres, 18 June 2013

205 Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: The situation of Maori People in New Zealand, A/HRC/18/XX/Add.Y at para [67]

206 Frans Viljoen, “Exploring the Theory and Practice of the Relationship between International Human Rights Law and Domestic Actors” Leiden Journal of International Law, 22 (2009) at 187

appropriate accreditation under the Paris Principles. Following the Durban conference in 2001 the Committee specifically noted that NHRIs can play an important role in combating racism and racial discrimination but needed to be strengthened and provided with greater resources to help them do so.

It was only after the rules of procedure were changed allowing NHRIs to make a statement directly to the Committee that the New Zealand Human Rights Commission (NZHRC) began to consciously engage with the CERD Committee.208 The NZHRC’s involvement increased after 2007 following a direct invitation from the Secretary to become involved, possibly as a way of neutralising the Government’s concern at the Committee’s comments on the Foreshore and Seabed legislation. It was also intended to ensure greater participation by groups other than Māori.209This subsequently translated into a more constructive role with the NZHRC liaising between the Committee, the Rapporteur and the Government. This was particularly important in the case of CERD because there is no obvious public sector agency to take the lead in compiling the report and monitoring implementation of the Convention. Until 2008 the report was prepared by the Ministry of Foreign Affairs which represents the Government but the Ministry did not take an active role in promoting it after it was presented and recommendations made. The most recent report was prepared by the Ministry of Justice and presented by the Minister of Justice, itself an improvement since the Justice Ministry has responsibility for human rights within New Zealand rather than New Zealand’s reputation with the UN. From 2008 to 2013 the NZHRC monitored compliance with the Committee’s recommendations through the publication of an Annual Race Relations Report which tracked the progress of race relations in New Zealand.

The former Race Relations Commissioner views the relationship between treaty bodies and NHRIs as critical principally because NHRIs act as the eyes and ears of the Treaty body domestically while the treaty body itself provides an external source of support for the NHRI. The significance of the role of NHRIs was also reinforced by one of the Crown Counsel210who routinely provides advice on compliance with human rights treaties. He observed that one of the usual requirements by the UN Treaty monitoring body is that publicity to the concluding observations and recommendations of the body be given by the state party. The extent to which New Zealand observes this in practice is low. While publicity may be given to the Concluding Observations and Recommendations by posting them on the relevant Ministry website, the level of comment and the implications for New Zealand appear to be poorly understood. He considered that New Zealand could usefully improve realisation of human rights domestically by an organisation such as the NZHRC that was independent of Government, undertaking an education exercise for relevant media personnel on human rights, including treaty body monitoring.

Civil society organisations can also play a significant role in the treaty body process through the provision of shadow body reports but very few do so in practice whether because of resourcing, time constraints or lack of understanding of the UN system. As Joris de Bres observed:211

208 The Race Relations Conciliator has always been given the opportunity to comment on the Country reports before they were sent to the CERD Committee

A weakness of civil society organisations in New Zealand is that they are not well resourced generally and many rely on contracts to deliver certain services that the Government should deliver ... and in race relations in particular there’s really not much of anything.

Although having said this, he considers that they will become more relevant as the treaty bodies make approaches to NGOs and technology improves. A lawyer who has attended a number of country examinations as part of the Government delegation suggested that video link participation would allow a larger group of specialist officials to participate alongside delegation representation which would make the examination of specific issues more efficient and in depth.212

The number of NGOs that provided shadow reports to CERD has increased since the perceived success in achieving repeal of the Foreshore and Seabed Act (in 2004). There were no NGO submissions in 2002 but by 2007, in addition to Peace Movement Aotearoa, the Human Rights Foundation and ACYA, Aotearoa Indigenous Rights Trust, the Treaty Tribes Coalition and a collective of four iwi Māori/indigenous peoples Authorities in Tai Tokerau submitted reports to CERD. To some extent the nature of this representation reflects the concerns of the Race Relations Commissioner that there was a disproportionate focus on issues relating to Māori over other ethnicities who, arguably but for the Commissioner’s efforts, would have remained invisible.213

Although the Courts play a significant role in promoting and protecting human rights, this is tempered to some extent in New Zealand by the fact that a “duallist” approach to international norms is assumed to apply.214 The most overt reflection of this position can be found in Ashby v Ministry of Immigration215in which Cooke J (as he then was) referred to CERD and refused to accept that the treaty obligations created under the Convention were binding domestically since the treaty had not been incorporated into New Zealand law by an Act of Parliament . However, the position in fact is much more nuanced than this comment suggests, Cooke himself (by then President of the Court of Appeal) observing in a later case216 that inviting the Court to ignore the international instruments was an “unattractive argument that New Zealand’s adherence to the international instruments had been at least partly window dressing”.

In Northland Regional Health Authority v Human Rights Commission217Cartwright J noted that the Courts in New Zealand have increasingly been prepared to look to international instruments and authorities to gain a better understanding of domestic human rights legislation, going on to state that “where international principles are the foundation for domestic legislation the logical path to follow is one that

212 Interview with Ben Keith: 8 April 2013. Keith indicated that while the delegation was well prepared and able to answer most of the Committee’s questions it would have been helpful to call on subject specialists on points which the reviewing body wished to explore further. Specialists such as the Chief Paediatrician of the Ministry of Health who attended the CRC review can find it difficult to free up the time to travel the necessary distance. We understand that the matter has been raised informally with treaty body staff.

213 It is worth noting that a survey, conducted annually by UMR Insight Ltd since 2000, showed in 2011 that 77 per cent of New Zealanders consider that Asians are discriminated against more than any other group. This figure is up from 75 per cent in 2009 and 74 per cent in 2008.

214 That is international norms are only directly enforceable when implemented by national legislation. Under a monist system international norms do not need to be translated into national law. The act of ratifying an international treaty immediately incorporates that international law into national law allowing courts to enforce international law domestically. Neither approach adequately describes the situation in New Zealand

provides the international framework and understanding to illuminate and assist local decision- making.”218Interestingly, although the Judge accepted that CERD had a part to play as the progenitor of the RRA and therefore race discrimination, she opted for the wider definition of discrimination in the ICCPR stating that the definition should not be read down to exclude a group that might not fall within the more limited definition.

In Quilter v Attorney-General219, although all the Judges of the Court of Appeal approached the question of same sex marriage differently, at least three referred to the international framework as a way of clarifying the definition of discrimination. Thomas J in particular addressed the question of influence of the international covenants and conventions as not providing the complete answer but assisting to indicate the underlying nature or essence of discrimination and expressing basic values which the community, in ordering its affairs, is to observe.220

CERD was also mentioned, but not developed further, in Wheen v Real Estate Agents Licensing Board

However, despite increasing reference to international obligations by the courts which has led some commentators to claim that international human rights obligations have “moved centre-stage”,223 it is still arguable how influential treaties such as CERD are in practice. One reason for this may be the lack of understanding of the international human rights treaty framework and its significance among legal practitioners – something that itself reflects the lack of publicity given to the treaty body reports and their conclusions.

Despite New Zealand’s apparently good record of compliance, it is unclear whether ratification of the Convention has significantly altered its behaviour. It may well be that the most important impact of the Convention was the introduction of the RRA and its subsequent incorporation in the HRA.

As with other treaties the nature of the obligation and how difficult or costly it is to implement will be relevant. A commitment that is comparatively easy to give effect to or which reflects ongoing work will be easily accommodated whereas one which would involve greater disruption will either be the subject of a reservation, or deflected by ambiguous comment about observance. Given this, it is difficult to understand New Zealand’s reluctance to accept Article 14 since it would not demand undue resources in practice.

A researcher from the Netherlands who recently carried out a project on domestic compliance with international commitments observed that only two of CERD’s Concluding Observations appear to have contributed in any way to bringing about change - the overrepresentation of Māori in

223 Andrew Butler & Petra Butler, “The Judicial Use of International Human Rights Law in New Zealand” (1999) 29 VUWLR 173 at 187

prisons and repeal of the Foreshore and Seabed Act.224 Even this is contestable, however, given the overrepresentation of Māori in the justice system is an ongoing issue that is resistant to easy resolution, and the repeal of the Foreshore and Seabed Act had an added impetus as a condition of the Confidence and Supply Agreement between National and the Māori Party in 2009.

While the CERD Committee and Special Rapporteurs may not have directly influenced the Government’s decision making, the Government has certainly been aware of their criticism and NGOs have relied on the recommendations to inform their advocacy.

224 Jasper Krommendijk, The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights Treaties in the Netherlands, New Zealand and Finland: Paper Pushing or Policy Prompting? School of Human Rights Research Series, Vol.63 (2014) at 297

Chapter Five The Convention on the Elimination of all forms of Discrimination against Women (CEDAW)

The International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is often described as the international bill of rights for women.

CEDAW was adopted by the United Nations General Assembly on 18 December 1979 by a vote of 130 states in favour, none against and 10 abstentions. It entered into force on 3 September 1981.225It was a product of universal participation, drafted by the Commission on the Status of Women, whose members included representatives of Great Britain, United States and Canada, among others. The United Nations General Assembly adopted an Optional Protocol to the Convention, containing a procedure for consideration by the Committee on the Elimination of Discrimination against Women (CEDAW Committee) of individuals’ complaints of violations of CEDAW rights, as well as a procedure under which the Committee may undertake an inquiry into serious, ‘grave or systematic’ violations of the Convention rights by a State party.226

CEDAW has sixteen substantive articles which impose obligations on New Zealand to eliminate discrimination against women. Article 1 defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or the purpose of impairing or nullifying the recognition, enjoyment or exercise by women...of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

By the 1990s women’s rights had become more significant in United Nations discussions and were recognised as human rights. They were specifically addressed in the 1993 Vienna World Conference on Human Rights, which focused on women’s equality with men, and the Fourth World Conference on Women in 1995. Following the conference the Beijing Declaration and Platform for Action went further than merely emphasising equality between men and women and set out a programme of women’s empowerment. CEDAW brings together civil and political, economic, social and cultural rights in a framework that identifies the complex meanings of discrimination and offers strategies to overcome it.227

New Zealand signed the Convention on 17 July 1980 but by 1983 when the National Council of Women was urging the Government to ratify the Convention, there was both support and opposition for it. Chen reports that the National Government remained undecided about ratification despite the NZHRC reporting to the Prime Minister that it should be ratified.228

While there may be a small number of areas where New Zealand law is inconsistent with or runs counter to the requirements of the Convention, it is in the area of practice and attitudes

227 Andrea Den Boer, (2008) “Evaluating CEDAW’s impact on women’s empowerment”: Paper presented at the International Studies Association Conference, San Francisco, 26-29 March.

228 Mai Chen (1989). Women and discrimination: New Zealand and the UN Convention. Wellington: Victoria University Press for the Institute of Policy Studies.

229 Pat Downey, (1983). The International Convention on the Elimination of All Forms of Discrimination against Women. Report to the Prime Minister on Proposed Ratification at 3 & 8

that the greatest actual discrimination against women occurs. Genuine equality cannot be measured absolutely by legislative reform. Attitudinal change is the enduring and crucial hurdle to be overcome before true equality can be achieved. It is the Commission’s view that

there is no fundamental impediment either in law or practice which would prevent this country ratifying the Convention.

In 1984 a newly elected Labour Government gave an unqualified promise to ratify the Convention.230 Newspaper reports of the day show letters and petitions for and against ratification were sent to both the Prime Minister and the Governor-General. The domestic implications of the Convention were debated in the media and several protest marches were held for and against ratification. A paper by the NZHRC - “What’s It All About?” - identified “anxieties” from some groups and individuals about ratification and invited submissions, and answered questions. The paper noted that New Zealand had ratified every major United Nations instrument that had embodied the principle of equality of men and women and which had sought to remove discrimination against women. If countries like New Zealand with a good human rights record stood aside we would lose the opportunity to influence others internationally.231

Also in 1984 the Ministry of Women’s Affairs was established. A series of meetings held throughout the country to determine the priorities and work programme of the new Ministry sharpened some of the debate about the Convention. Nonetheless the Government ratified the Convention on January 10, 1985.232 The ratification was subject to three reservations relating to women working in underground mines, to Article 11(2)b in relation to paid maternity leave, and women’s service in armed combat roles in the Defence Forces. The reservations were lifted respectively in 1989, 2003 and 2007.233

New Zealand ratified the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women on 7 September 2000. Former Governor General Dame Sylvia Cartwright, a member of the CEDAW Committee from 1992 to 2000, was actively involved in negotiating the final text of the Optional Protocol.

Reporting on international human rights treaties has an expressive function in and of itself. As a recent Minister of Women’s Affairs, Hon. Jo Goodhew, said in an interview for this research:

I think the CEDAW process itself helps women’s progress. I honestly believe the externality of it, the timeframe of it in that you are working on a date to report, the international nature of it, and there is always pride as nation are motivations...

New Zealand rates highly for taking its CEDAW reporting seriously. Since New Zealand ratified the Convention it has sent consistently high level delegations to lead the examination.234

231 Human Rights Commission (1984) Convention on the Elimination of All Forms of Discrimination against Women: What’s It All About? A Review Paper.

232 New Zealand Ministry of Foreign Affairs and Trade (2008) New Zealand Handbook on International Human Rights. Wellington

234 Hon. Katherine O’Regan, Associate Minister (1994); Deborah Morris, Associate Minister (1998); Hon. Ruth Dyson, Minister (2003); Hon Lianne Dalziel, Minister (2007); Hon Jo Goodhew, Minister (2012).

New Zealand has reported seven times since 1988 on its implementation of CEDAW (the third and fourth reports were combined). From the second report in 1993, the CEDAW Committee’s Concluding Observations and Recommendations have raised several major concerns about women’s inequality including:

This research has paid specific attention to the issue of equal pay and pay equity235in treaty body reporting and the influence of CEDAW on legislative change around paid parental leave.

Equal pay is fundamental to gender equality. It was first outlined in Article 23(2) of the UDHR which stated: Everyone, without any discrimination or distinction of any kind, has the right to equal pay for equal work. It is referred to in other major treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Articles 3 and 7a). Article 11 of CEDAW reads:

State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (d)...the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work.

Various International Labour Organisation (ILO) Conventions such as ILO Cl00, Equal Remuneration Convention and ILO Cl 11, Discrimination (Employment and Occupation) Convention specify equal pay and pay equity obligations. Both the treaties on racial discrimination, the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) and on the rights of disabled people, the Convention on the Rights of Persons with Disabilities (CRPD), also refer to equal pay. New Zealand has ratified all of these treaties. In the case of the most recent convention, the CRPD, it led the international community in the development and acceptance of the treaty, providing further evidence of its positive self-image as a human rights leader.

The following section summarises the relevant equal pay-related comments made by the State party, and the concluding observations and recommendations back from the Committee to New Zealand.

New Zealand's first report to the CEDAW Committee in 1986 stated that there was no overall differentiation by sex in New Zealand law and that, in employment and in society, women were increasingly taking opportunities (New Zealand's First Report, 1986). The report highlighted the Government Service Equal Pay Act 1960 and the Equal Pay Act 1972 (which applied to the private

235 Judy McGregor, (2014) “The human rights framework and equal pay for low paid female carers in New Zealand”

sector). It also referred to s.15 of the Human Rights Commission Act 1977, which covered the prevention of sex discrimination in employment. New Zealand said, while societal attitudes were not static, it could not be said that women and men themselves practice full equality in the workplace. The report stated that women still tended to choose certain types of employment, the majority in clerical/secretarial work and other traditional occupations, such as nursing and garment manufacturing.

The difference between de facto and de jure sex discrimination was noted by the Committee in its concluding comments back to New Zealand.236 Despite the absence of legal barriers to equality between men and women in New Zealand and even though women had acquired the right to vote in 1893, in practice the barriers created by tradition, history and structures still existed.

The Committee said that job sexual segregation seemed to cause problems with regard to equal pay. It asked how those problems had been dealt with, whether gender-neutral job evaluation schemes had been of use, whether wage differential studies had been carried out, whether cases on wage discrimination based on sex had been raised and, finally, how wages were set and what was the role of the trade unions in wage negotiations.

The government reported that, during the reporting period (1986-1992), women had continued to earn significantly less than men.237 While the pay gap between male and female earnings closed from 72 percent to 79 percent between the passage of the Equal Pay Act 1972 and its final implementation date in 1977, it had risen by only two percentage points to 81 percent in the previous 15 years. The report said that despite the existence of the Equal Pay Act, the distribution of market income in New Zealand was heavily weighted in favour of men. Provisional 1991 census results showed males were still receiving more income than females in all groups over $20,000 a year, and that 60 percent of all people earning $20,000 or less were female.

The report referred to the effectiveness of the Equal Pay Act in light of the breakdown of collective bargaining that began with the Employment Contracts Act 1991. It said the practical application of the Equal Pay Act remained unclear in the case of individual contracts as no cases had been taken.

The introduction and then quick repeal of the Employment Equity Act 1990 was also referred to. It said that, in the 1980s, some test cases under the Equal Pay Act confirmed that the Courts interpreted the provisions of the Act as applying only where men and women were doing the same or substantially the same work. However, many groups recognised the need for wider legislation to cover pay equity or equal pay for work of equal value and to address the differing pay rates of women and men in predominantly single sex occupations such as nursing and police work (which many considered carried equal levels of responsibility but not equal levels of remuneration). The report noted a strengthening of the equal pay campaign by civil society and government initiatives to respond including the Employment Equity Act 1990 which covered both pay equity and equal employment opportunities. The Act was described as legislation constructed within the industrial relations framework prevailing at that time.

In its response the Committee noted, as one of several principal areas of concern, that women's annual income was not equal with that of men for many reasons, particularly because of their need to accommodate family responsibilities.238Although the Government had taken measures to improve women's income, it had abolished pay equity legislation during the reporting period. More efforts needed to be taken to alleviate the burden on women in that respect.

The Committee urged the Government to take affirmative action measures in cooperation with the private sector to help women cope with family and work responsibilities. It also noted its concern that changes to employment legislation were likely to weaken the trade union movement. Without strong union support, women in paid employment would lack the means to negotiate better work conditions with their employers.

The Committee recommended that in its next report the Government provide more detailed information about the obstacles which still existed and prevented women from achieving full equality.

In this report the Government informed the Committee that in August 1997the average hourly earnings of women were 81.2 percent of men's.239This relativity had remained almost unchanged since the implementation of the Equal Pay Act. Part of the difference was attributed to longer hours of work and more overtime by men. The report noted that the gender pay gap was worse in the public sector at 76.2 percent than the private sector at 80.2 percent.

Research by the New Zealand Institute of Economic Research indicated that the gender pay gap was unlikely to narrow over the next five years if the recent industry trends continued. This reflected the concentration of women in industries, such as business and financial services, where the gender earnings gap was predicted to grow, and above-average wage growth in industries where women were under-represented. Other significant factors affecting earnings were the level of seniority, levels of skills, experience and job-related training, and the duration and continuity of employment but it was difficult to quantify the effects of these factors due to the paucity of data.

The report noted that the Ministry of Women's Affairs was responsible for a research program on the gender pay gap and that the New Zealand Council of Trade Unions was developing a three- year campaign to achieve equal pay to mark the 25th anniversary of the Equal Pay Act 1972.

In 2002 New Zealand told the Committee that legislation providing for equal pay for work of equal value had been repealed in 1990, and the labour market had been deregulated.240 It said that after entering office, the new Government had begun to reverse the effects of deregulation by establishing a Pay and Employment Equity Task Force to promote equality in public sector jobs. The Task Force was due to establish a five-year plan of action by 1 December 2003. It was hoped that in demonstrating the value of a policy based on equality the plan of action would also serve as a model for the private sector.

238 Committee on the Elimination of Discrimination against Women, 1993b 239 Committee on the Elimination of Discrimination against Women, 1998 240 Ministry of Women's Affairs, 2002

Committee members requested additional information on the measures the government had taken to eliminate horizontal and vertical employment barriers and pay gaps.241 Clarity was also sought on whether cases of pay gaps had been referred to a court and, if so, whether the employer or employee bore the burden of proof. The Committee chairperson ended the dialogue with New Zealand with the comment that the Committee hoped that effective action would be taken to deal with the country's gender segregated labour market and wage disparities between men and women. In its press release after it examined New Zealand's report, the Committee listed the financial repercussions of wage gaps between men and women as an area requiring further attention.242

The Committee expressed concern that, while New Zealand law recognises the principle of equal pay for work of equal value, the mechanisms for implementing this principle in the private sector, such as industry wide job evaluations to ensure equal pay for women performing work of equal value, had been abolished.243

It also criticised the fact that the Government lacked the authority to implement and enforce equal employment opportunities policies in the private sector and recommended the enactment of comprehensive laws guaranteeing the substantive equality of women with men in both the public and private sectors, especially in regard to equal pay and equal opportunity in employment.

Given that the New Zealand government had dismantled the majority of its equal pay machinery in 2009, it is instructive to note how the State party reported on the gender pay gap to the Committee a year later and the nature of the Committee's latest response.

First, New Zealand acknowledged that the gender pay gap remained stubborn and its causes were complex and there were no simple solutions.244 The gender pay gap of 11.3 percent was the lowest recorded since the New Zealand Income Survey first measured the pay gap in 1998, but it had changed very little in the last decade.

The Department of Labour's Pay and Employment Equity Unit (PEEU) designed and produced pay and employment equity toolkits and other practical assistance for state sector employers in New Zealand to help them assess pay and employment equity issues within their workplaces. Pay and employment equity reviews in the public sector were conducted between 2005 and 2009. All reviews except one found gender pay gaps, which varied in size between three to 35 percent. PEEU's obituary was consigned to a single sentence in the report: The work of PEEU was discontinued in 2009.

The more explicit urgings and recommendations by the CEDAW Committee in its reports to New Zealand included those relating to equal pay and pay equity. These were:

241 Committee on the Elimination of Discrimination against Women, 2003a 242 Committee on Elimination of Discrimination Against Women, 2003b 243 Committee on the Elimination of Discrimination against Women, 2007 244 Committee on the Elimination of Discrimination against Women, 2010

Analysis of the reports, demonstrates that the Committee noted retrogression in equal pay and pay equity in the second, sixth and seventh reports. In the second report in 1992, it noted the repeal of the Employment Equity Act in 1990, and in the sixth report it was concerned about the abolition of mechanisms, namely the Pay and Employment Equity Unit. The seventh report explicitly urged legislative change relating to equal pay for work of equal value; indicators, timeframes and improved accountabilities in the public service; and the use of affirmative action to eliminate occupational segregation and effective monitoring of the gender pay gap.

Successive New Zealand government reports to the CEDAW Committee have acknowledged equal pay and pay equity to varying degrees as significant, systemic and continuing barriers to gender equality. They also reflect the peaks and troughs of active and passive political commitment to addressing the gender pay gap domestically. In response successive UN committees have sought to increase the tempo on equal pay but what distinguishes the last report in 2010 is the specificity of the recommendations and the move from rhetorical encouragement to active identification of actions that need to be taken.

New Zealand’s ratification of CEDAW was a catalyst for significant legislative change on paid parental leave.

The two other reservations that New Zealand had entered at the time of ratification were less significant and were eventually lifted. New Zealand had opposed the ILO Convention relating to the prohibition of women working in underground mines, even at the time of CEDAW’s ratification. The last reservation relating to the ban on women in combat roles was also out-dated by the time it was lifted and legislation merely confirmed an earlier change in Defence Force practice allowing women’s participation.

Paid parental leave, though, was in a different category. Analysis of CEDAW treaty body reporting shows a maturing of attitudes over the years towards paid parental leave. The second national report to CEDAW in 1993 stated: Maternity and parental leave on pay is not part of New Zealand law or practice, and it is not the intention of the Government to introduce this requirement.246 The CEDAW Committee asked about the apparent discrepancy between the reservation on paid maternity leave and various

246 Committee on the Elimination of Discrimination against Women (CEDAW), 1993. Consideration of reports submitted by States Parties under Article 18 of the Convention: Second periodic reports of States parties. New Zealand. CEDAW/C/NZE/2 at 42.

anti-discrimination measures including the new Human Rights Act. It also asked whether the Ministry of Women’s Affairs and the trade unions had raised paid maternity leave. New Zealand’s representative said the Government felt paid maternity leave was a contractual arrangement not subject to government direction. In its response the Committee suggested New Zealand review its reservation: The Committee found it difficult to understand why paid maternity leave had not been implemented in working life.

The combined third and fourth reports of New Zealand showed the winds were shifting. The report stated that the Ministry of Women’s Affairs had published research comparing New Zealand’s policies internationally that showed New Zealand had strong job protection and good access to maternity, paternity and extended parental leave, but this was limited for those in casual and seasonal work. The report said the research had showed that “women may be unable to afford to take unpaid leave”. It also noted that parental leave payments were being negotiated in some employment contracts, despite the absence of legislative compulsion.247

In 2003 the Minister of Women’s Affairs, Hon. Ruth Dyson, presenting the fifth periodic report told the Committee that Cabinet had authorised the removal of the reservation to Article 11.2 (b) of the Convention subject to the approval of the appropriate parliamentary committee. The decision had been made because of the introduction of up to 12 weeks of Government-funded paid parental leave, subject to certain prior employment conditions. The leave arrangements were being reviewed and might be expanded if resources permitted.248

Former Human Rights Commissioner Joy Liddicoat, who accompanied the Minister as a technical advisor in New Zealand’s examination on its fifth CEDAW report, states that after CEDAW, the Minister returned to New Zealand committed to the implementation of paid maternity leave. The Minister said, ‘I must, and we’ve got to, push on it.’249

Paid parental leave is an example of where ratification of CEDAW, and the persistent international feedback from CEDAW experts and encouragement of change by a treaty body, have contributed (at least in part) in helping to produce positive legislative change for women and their families.

It is likely that paid parental leave will continue to be a feature of CEDAW treaty body reporting given New Zealand’s low rate of payments by OECD countries’ standards. Australia, which currently has two weeks more than New Zealand’s 16 weeks at 18 weeks,250 intends to raise the period of paid parental leave to 26 weeks in 2014.251 The New Zealand Government indicated paid parental leave cover would improve but it has also stated it would veto the Labour Opposition’s Parental Leave and Employment Protection (Six Months Paid Leave) Amendment Bill that proposes 26 weeks leave. Of the 3,809 submissions to the select committee looking at this bill, 99.6 per cent favoured 26 weeks and women’s civil society has coalesced around increased payments.

247 Committee on the Elimination of Discrimination against Women (CEDAW) (1998) Consideration of reports submitted by States Parties under Article 18 of the Convention: Third and fourth periodic reports of States parties. New Zealand. CEDAW/C/NZL/3-4 at 47.

248 Committee on the Elimination of Discrimination against Women (CEDAW) (2003) Consideration of reports submitted by States Parties under Article 18 of the Convention (continued): Fifth periodic report of. New Zealand. CEDAW/C/SR.624 at 2 [4] 249 Interview with Joy Liddicoat for this research.

250 PPL has increased to 16 weeks from April 1st 2015 and will go to 18 weeks from April 1st 2016.

The ratification of CEDAW by New Zealand and the creation and establishment of the Ministry of Women’s Affairs were related. The Ministry of Women’s Affairs (now the Ministry for Women) became the machinery by which New Zealand gave effect to implementing CEDAW. To that extent, then, ratification influenced the policy mechanisms available to advance gender equality.

In an interview Dame Ann Hercus states that prior to the 1984 snap election in New Zealand there was a vigorous community discussion about CEDAW with an enormous amount of misinformation floating around, prompted by fundamentalist Christian groups. As Opposition spokeswoman on women’s affairs she mailed out a press statement trying to counter the misinformation. The creation of the Ministry of Women’s Affairs and the ratification of CEDAW came out of the Labour Women’s Policy Conference in 1982/3 and were several of the six or seven planks of the party’s election policy. Dame Ann held the Minister of Women’s Affairs portfolio (along with Police and Social Welfare) and she recalls the financial constraints surrounding the establishment of the Ministry.

My first memory of becoming the Government was the Governor of the Reserve Bank walking in saying ‘the cupboard is bare. If you think as an incoming government that you can fulfil a whole lot of commitments, think again. There’s been a run on the dollar and the economy is in an appalling shape.’ For someone who had left a high-paying job as deputy chair of the Commerce Commission to enter politics with six years in Opposition working hard, this came as a cruel blow to me and to everybody.

So as new Ministers were sworn in our first jobs, the thought of setting up a new Ministry with no funding was a bit daunting. However, it was clear to me that from a strategic point of view we had made an absolute commitment to the electorate at large and had been elected with a significant women’s vote. I believed that it was perfectly reasonable to assess that we were partly government on the backs of women, and therefore had to have the Ministry of Women’s Affairs.

Funding issues were coupled with political and bureaucratic disinterest and public opposition to the establishment of the Ministry. Dame Ann had to fight several battles to overcome this:

The first was with some of my colleagues including the former Prime Minister David Lange. Their commitment to equality of women, to feminism and their election commitment turned out to be a tad thin. I do not know to this day whether that was because of the thinness of their own commitment to the equality of women and the place of women in the Party, who some felt threatened by, or it was genuinely because the country could not afford it. The opposition was unhelpful particularly as I had three portfolios and had to negotiate through a number of difficult areas. I did not want the Ministry to be a trade-off.

The second battle occurred when I struck a brick wall from the State Services Commission which made it clear in a number of ways that it did not support small standalone Ministries. It tried very hard to persuade some of my less helpful colleagues that what we could do is just tuck into Internal Affairs or be a branch office of some kind. This undermining was absolutely improper on the part of public servants.

Dame Ann said the third battle was external, from fundamentalist groups who attended meetings about the ratification of CEDAW and the establishment of the Ministry and mounted strong

opposition to the initiatives. In the end she approached the then President of the Labour Party Margaret Wilson to approach the Prime Minister about support and resourcing.252

Since its inception the Ministry has weathered highs and lows in resourcing, political and public commitment and public sector leadership. Some of its measures have been effective in terms of process and influential in terms of outcomes. For example, the establishment of a nominations service providing a data bank of women with skills, experience, interest and expertise that can be used in appointment processes to government statutory bodies has been a plus. The nominations service, plus advocacy, contribute to New Zealand’s government statutory bodies much higher female representation at 41.5 per cent compared to the internationally low 14.75 percent female representation of the top 100 companies by market capitalisation listed on the NZX (New Zealand Stock Exchange).253

Other initiatives have not fulfilled their promise to progress women’s equality. The mainstreaming of gender analysis in legislation and government policy is an example of a missed opportunity. For example, Hon. Ruth Dyson told the CEDAW Committee in 2003 that since 2002 the Government had required all papers considered by the Cabinet’s Social Development Committee to include gender implications statements supported by a gender analysis. In the same session a CEDAW Committee expert asked the obvious question- why only social policy, rather than economic and immigration policies, for example? The Minister responded that migration issues were also addressed at the Social Development Committee. However, she shared the concern that gender analysis should extend to all ministries.254

It is clear, too, from treaty body reporting and involvement in civil society activity, that Māori women’s representatives have not seen the Ministry of Women’s Affairs as necessarily addressing their issues. At one stage domestically the late Jacqui Te Kani, former president of the Māori Women’s Welfare League, publicly advocated for a separate ministry for Māori women.255 She also told an NGO consultation meeting with CEDAW Committee members at the United Nations when New Zealand was presenting its fifth report that it was “imperative that we advance equity, opportunity, autonomy and participation for Māori indigenous women of New Zealand/Aoteaora and that we are accorded our rightful status as tangata whenua”, comments echoed by Kitty Bennett, then president, who talked of “our right to represent Māori women” who were greatly discriminated against.”256

A formal review of the Ministry in 2011 said it faced the usual problems endemic to small organisations including limited depth and breadth of skills and experience and identified a need to strengthen policy capability and capacity.257 In the examination of New Zealand’s fifth report, the Minister of Women’s Affairs Hon. Ruth Dyson answered criticism by Committee experts about

252 Professor Margaret Wilson, now at the University of Waikato’s Law School, is one of three researchers involved in this project.

253 New Zealand Human Rights Commission (2012) The New Zealand Census of Women’s Participation 2012. Wellington; Human Rights Commission.

254 Committee on the Elimination of Discrimination against Women (2003). Consideration of reports submitted by States parties under article 18 of the Convention (continued). Fifth periodic report of New Zealand. CEDAW/C/SR.624 at.2 and 5, [8], [27], [34].

256 New Zealand Mission to United Nations Facsimile 7 July 2003, copy retrieved from the Ministry of Women’s Affairs library.

257 Formal review of the Ministry of Women’s Affairs (2011) State Services Commission, the Treasury and the Department of the Prime Minister and Cabinet. Retrieved from http:/newzealand.govt.nz.

the absence of gender disaggregated data, by stating the MoWA faced the same problem of other population agencies in that the performance of other ministries had an effect on its own performance and it could not be held solely accountable for the action or inactions of other departments.258

The CEDAW Committee in 2012 said that it was concerned that the State party had not taken sufficient measures to ensure that gender was mainstreamed into all national plans and government institutions as requested by the Committee in its previous concluding observations. The Committee noted with concern that the State party had not introduced a national plan of action for women to replace the one that ended in 2009 and that the Ministry of Women’s Affairs lacked adequate resources for its many tasks.259 The same year the Minister of Women’s Affairs dropped to being one of four Ministers outside of the Cabinet of 20 ranked Ministers and in 2014 it has slipped to being outside of Cabinet at 25th of 26 ministerial positions.

The following table shows that CEDAW has been referenced in a limited number of cases since the treaty was ratified. The most recent cases (the last two in the table) concern equal pay. A substantive hearing in what has become known as the Kristine Bartlett case will now be heard in the Employment Court.

258 Committee on the Elimination of Discrimination against Women (2003). Consideration of reports submitted by States parties under article 18 of the Convention (continued). Fifth periodic report of New Zealand. CEDAW/C/SR.624 at 8 [54] 259 Committee on the Elimination of Discrimination against Women (2012). Concluding observations of the Committee on the Elimination of Discrimination against Women. New Zealand. CEDAW/C/NZL/CO/7 [16]

Table 3. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

CASE	COURT	INTERNATIONAL REFERENCE	STATE REPORT IN WHICH REFERENCED
"People", Re [1993] NZAR 543	Indecent Publications Tribunal	CEDAW
New Zealand Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100, (1994) 4 NZELC 98,289, [1994] 2 ERNZ 140	High Court	CEDAW	Use of CEDAW to interpret domestic law in case of sexual harassment.
Northern Regional Health Authority v Human Rights Commission [1997] 4 HRNZ 37	High Court	CEDAW	It is said that UN treaties are not legally binding
G v G [1996] NZHC 1284; [1997] NZFLR 49, (1996) 1 BACR 286, (1996) 15 FRNZ 22	High Court	CEDAW
Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523, [1997] NZCA 207; [1998] NZFLR 196, (1997) 3 BHRC 461, [1997] NZCA 207; (1997) 16 FRNZ 298, (1997) 4 HRNZ 170	Court of Appeal	CEDAW	CEDAW is used whether marriage covers same sex marriage. It is said that UN treaties are not legally binding
Mendelssohn v Attorney-General [1999] 2 NZLR 268[1999] NZCA 67; , (1999) 5 HRNZ 1	Court of Appeal	CEDAW
Director of Human Rights Proceedings v Cropp (2004) AP7-SW03	High Court	CEDAW	Reference to CEDAW in a sexual harassment case
Bullock v Department of Corrections (2008) 5 NZELR 379	Human Rights Review Tribunal	CEDAW	Discrimination by reason of sex in the department. Reference to CEDAW
Service and Food Workers Union Nga Ringa Toa Inc. v Terranova Homes & Care Ltd [2013] NZ EmpC 157	Employment Court	CEDAW & ILO Conventions	Notes that concern of the international instruments is to eliminate all forms of discrimination in pay on grounds of gender
Terranova Homes and Care Ltd v Service and Food Workers Union Nga Ringa Toa Inc.	Court of Appeal	CEDAW & ILO Conventions	Now settled law that there is an interpretive presumption that Parliament does not intend to legislate contrary to New Zealand’s international obligations. However, suggests that the usefulness of Convention 100 as an interpretive aid is limited.

The CEDAW Committee has not received any communications relating to New Zealand under the Optional Protocol to CEDAW which was ratified in 1999.

Hon. Jim McLay, New Zealand’s Permanent Representative in New York at the time of the last periodic examination under CEDAW said in an interview:

I am a supporter of civil society. The role of NGOs is to always be pushing the envelope- they’ll always be ahead of where governments are prepared to go and they play a very important role. That doesn’t mean that I always agree with what they say or even their tactics sometimes but I regard them as being an important ingredient of the total picture.

Of all the major international human rights treaties that New Zealand has ratified, CEDAW, stands out for the level and intensity of civil society engagement at different levels of the process including

engagement in consultation for the national report; the writing and submission of shadow reports; and NGO representation at the country’s periodic examination at the United Nations. As an example of how widespread civil society engagement is with CEDAW, records show that 37 national and local groups and individuals made written submissions on the draft national report which was circulated for public comment from 13 December 2001 to 28 February 2002 before New Zealand’s sixth periodic examination.

However, there is varying opinion about the consultation processes, depth of analysis and the writing of shadow reports by civil society, even from women’s groups themselves. The CEDAW Committee Rapporteur on New Zealand in its latest examination, Dr Niklas Bruun, in an interview made the general observation that while it was very important to have civil society input, the quality varied. The Finnish academic and only male on the CEDAW committee at the time said:

Some make strong recommendations but have no evidence to support them. Others can be vague and reflect strong opinions. Yet others file good reports.

A former Minister of Women’s Affairs Hon. Lianne Dalziel, who led New Zealand’s delegation on its sixth periodic report under CEDAW, said in an interview that she felt the shadow reporting involving civil society was inadequate. “It would have been much better to resource the development of the shadow report in a much more regionally oriented way.” She suggested the NZHRC should hold seminars around the country about input into the shadow report process. The Minister said that when she went around New Zealand on seminars after her return she found a lot of women with a lot to say “but they didn’t necessarily relate to the conduits that were there and they would never get the chance to channel what they had to say through the existing organisations.” If there was one change she could have made to the State party’s engagement with CEDAW it would be the resourcing of women’s input including the use of social media for younger women:

We are just not even connecting with that group. You walk into a school and ask a reasonably intelligent well informed group, or ask first year university students, what CEDAW stands for and they wouldn’t know.

She had consciously strived to increase the involvement of Pacific women in CEDAW. When she travelled to New York for New Zealand’s sixth periodic examination:

I chose to take a woman from Pasifika because it had never engaged in the civil society component of CEDAW. I wanted to build capacity in the Pacific community and the only way was to get a representative to come was to make sure she was funded.

Civil society representatives who attended the CEDAW Committee’s examination of New Zealand in 2012 in its seventh and most recent periodic examination also see greater opportunities for more effective engagement with committee members. Julie Radford Poupard, of Women’s Health Action, in an interview on her return said she knew from being there that:

We can improve by cutting down emotive language, avoiding generalisations, working towards a more evidence-based shadow report and working more collectively. I could see why the Committee felt a collaborative and collective shadow report was more powerful.

She felt the NGOs were reflected very strongly in the Committee’s Concluding Observations to New Zealand.

The New Zealand National Council of Women has been one of the most consistent and effective NGOs interacting with CEDAW. For example, Beryl Anderson, an NCW representative at New Zealand’s seventh periodic examination at the United Nations, has had the advantage of involvement in three shadow reports (fifth, sixth and seventh) and participated twice as an NGO representative in 2007 and 2012. In an interview she said while there is engagement from women’s groups and NGOs there is work to be done on co-ordination:

This time with the NCW shadow report we focused on the concluding comments from the previous report. We targeted what we were saying to those recommendations to show whether progress had been achieved or not. NCW also undertook a gap analysis and provided this to the Committee the day after New Zealand’s constructive dialogue.

She said that NCW needed to reflect on why it had slightly less engagement in consultation processes in 2012 than previously.

We still haven’t got to the point in New Zealand where there is one shadow report, which is the ideal for the Committee. I don’t know if we ever will.

The use by civil society of Concluding Observations and Recommendations from the CEDAW committee is an iterative process of advocacy and for accountability.

This is where the NGO community has to be quite active. When NCW has done submissions on legislation and policy it has mentioned the relevant recommendations in its written and oral submissions, in press releases and in other engagement with the Government. They have an important place and provide a platform on which civil society can say, ‘you’ve been told this needs to happen’.

New Zealand’s women’s groups have persistently used CEDAW treaty body reporting to progress women’s equality domestically. Their effectiveness in New York in 2012, despite a small number of representatives, is apparent in impact on the Concluding Observations. The Minister of Women’s Affairs at the time of New Zealand’s latest examination in 2012, Hon. Jo Goodhew, believes that civil society is advantaged during the sessions when the examination takes place in the United Nations.

Apart from seeing the shadow reports which I did beforehand, the Government doesn’t see or hear the dialogue between the NGOs and the Committee. I don’t think it would hurt if a representative from the State party was simply an observer and could get a handle on the angle from a questioner. It is not exactly equal.

The CEDAW Committee’s statement on its relationship with NHRIs suggest the two share common goals in the protection, promotion and fulfilment of the human rights of women and girls. It considers cooperation between the two as critical and the Committee is exploring further linkages and interactions. NHRIs, specifically those established in compliance with the Paris Principles such as New Zealand which has an A accreditation, have a role in monitoring activities, in dissemination of the Concluding Observations and Recommendations and publicising the Optional Protocol. It also suggests that NHRIs may assist State parties with their reports to CEDAW, assist victims of violations in accessing the Optional Protocol and submit reports to pre- session working groups or the Committee. NHRIs may also physically attend a country dialogue and provide information orally in the pre-session.260

While the NZHRC itself was not as involved in the early reporting process as it might have (since CEDAW was seen to be well served by civil society groups in comparison to other treaty reporting processes) two issues are worth noting. One is the extent to which the Commission incorporated gender equality and the human rights of women into its own work programme in terms of activities and initiatives. The second is its involvement in the international treaty body process by providing information for the national reports, submitting its own parallel reports and attending country examinations, as well as following up on Concluding Observations and Recommendations.261

First, the NZHRC’s role in incorporating rights for women and in promoting and protecting gender equality in its ongoing activities is statutorily-based. The Human Rights Act 1993 which prohibits discrimination on the grounds of sex provides women with access to the legal and policy framework for gender equality. The NZHRC has generally had relatively equal gender representation of its Commissioners, and in recent years more female than male staff. In 2002, in time for New Zealand’s fifth report, an Equal Employment Opportunities Commissioner was appointed to the Commission with specific statutory functions to promote, advocate for and monitor equal employment opportunities including equal pay. The EEO Commissioner’s role, following the amendment of the Human Rights Amendment Act 2001, resulted in a higher profile for women’s equality at work. In 2003 Hon. Ruth Dyson, Minister of Women’s Affairs, told the CEDAW Committee the establishment of a dedicated EEO Commissioner was; “Perhaps one of the most significant developments during the reporting period in terms of the acceleration of equality between women and men...”.262

In 2004 the EEO Commissioner was given responsibility to provide guidance to Crown entities to ensure equal employment opportunities across the wider state sector. Between 2002 and 2012, major activities of the EEO Commissioner included a national website NEON developed in partnership with the EEO Trust as an electronic portal for guidance and policy; regular reporting and publication of a two yearly Census report that benchmarked women’s progress in public and corporate sector; work on age discrimination; policy papers on equal pay including the provision of a draft Pay Equality Bill; and reports on access of disabled people to paid employment. A major national human rights inquiry that investigated women’s work in the aged care sector in New Zealand, entitled Caring Counts: Report of the Inquiry into the Aged Care Workforce, was the catalyst for several major policy reforms.263These included carers being paid to “work” when they travel between clients, better information for migrant carers and increasing professional recognition through improved access to training. The national inquiry was a precursor to litigation testing the Equal Pay Act 1973 involving aged care workers, a landmark case, that has now been sent back to the Employment Court from the Court of Appeal for a substantive hearing.264

However, the Commissioner’s statutory focus on women’s work left other areas of gender equality under-developed. When the first New Zealand Action Plan for Human Rights was published on March 31 2005, after two years of extensive consultation with the public, a notable omission was a specific section on women’s rights although there were priority actions relating to women.265 It was

261 Two of the researchers were involved with the NZHRC as this project was undertaken. Judy McGregor was EEO Commissioner 2002-2012 and Sylvia Bell was the principal legal and policy analyst until the end of 2014.

262 New Zealand Mission of the United Nations (2003) Committee on the Elimination of Discrimination Against Women, Consideration of the Report submitted by New Zealand, Statement by the Minister of Women’s Affairs, the Hon. Ruth Dyson

263 New Zealand Human Rights Commission (2012). Caring Counts: report of the Inquiry into the Aged Care Workforce.

264 Terranova Homes and Care Limited v Service and Food Workers Union Nga Ringa Tota Incorporated. [2014] NZCA 516.

265 Committee on the Elimination of Discrimination against Women (2006). Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women. Sixth periodic report of States parties. New Zealand. CEDAW/C/NZL/6, 10 at [26]

stated by the Government that this was due to the MoWA’s existing Action Plan for New Zealand Women, but it was a clear oversight that did not sit well with some sectors of civil society, particularly those engaged in violence against women and women’s health.

The Commission’s role in urging the Government to ratify CEDAW has been discussed. However, it is only more recently at the time of New Zealand’s seventh and most recent report, that the Commission has been actively engaged in CEDAW as a submitter, as a presenter at the United Nations in the oral pre-session, in addition to contributing to the national report. The late maturing of the Commission’s role in international human rights treaty body reporting is somewhat surprising given its early involvement in ratification. It also reflects greater acknowledgement by the United Nations of the role of national human rights institutions in its own work and the need to ensure full and inclusive participation of NHRIs in all stages of the reporting process.266

How effective has the NHRI been in promoting gender equality and protecting human rights in treaty body reporting? The answer probably is that the NHRI’s impact has been variable, but of growing influence. When it has engaged in the examination process such as for the seventh periodic report, the Commission was effective in several ways; helping the Government with information; supporting civil society’s interaction and providing a balance of viewpoints between civil society and the State party for Committee members. A total of 12 of the NZHRC’s 14 recommendations to the CEDAW Committee were taken up in the Concluding Observations. (Appendix 6).

Whether the Commission maintains its momentum remains to be seen. It has, for example, discontinued its regular census report benchmarking women’s progress that provided time series data for sector groups and civil society.267 There is no longer a MoWA Action Plan for New Zealand Women, but the NZHRC has an opportunity to fully address gender equality and women’s rights in its second national plan of action for human rights. Women’s groups, though, are likely to persist in their calls for a separate women’s action plan located within a well-resourced and effective Ministry that has measurable targets and accountabilities to progress gender equality. Women’s civil society are especially aware of the Government’s non-adoption of the first human rights national plan of action. Government departments were directed to consider implementing the priorities as normal business. But the lack of formal adoption of a national plan of action under s. 5 of the Human Rights Act 1993 raised the question of whether it belonged to the Government and the administration of the day had to implement it, or whether it belonged to the NZHRC and could therefore be ignored.

Richard Thompson Ford suggests that at some point “one must begin to worry that CEDAW has gained widespread universal assent only because its mandate is sufficiently vague and abstract to mean all things to all people.” 268

This analysis suggests that however slow the progress of gender equality, the ratification of CEDAW and the regular reporting under it is of benefit to women in New Zealand. It was a catalyst for the introduction of paid parental leave, and it has more recently been a focus of the revival of activism and litigation around equal pay in the aged care sector. The national human rights inquiry,

267 New Zealand Human Rights Commission (2012) New Zealand Census of Women’s Participation, 2012. Wellington. New Zealand Human Rights Commission.

Caring Counts: Inquiry into the Aged Care Workforce, which prompted union-led litigation the unions, was based on CEDAW and ILO Conventions relating to equal pay.269

As New Zealand slips in global gender gap reports,270and in the absence of strong effective machinery for women’s policy or committed, espoused political leadership on women’s issues,271 CEDAW remains a significant benchmark. It gives civil society a voice, a focus of advocacy and power during reporting periods; and it provides through its emphasis on non-discrimination, a minimum threshold of protection for human rights abuses against women. It also provides regularised opportunities for CEDAW gender equality experts to continuously analyse and benchmark of New Zealand’s progress internationally. This global comparison is crucial given New Zealand’s pronounced self-regard that it is a leader in advancing women’s progress pegged to historical firsts, such as women’s suffrage, which is partially responsible for the current complacency. International reporting also provides a focused opportunity for debate about gender equality in the absence of any parliamentary mechanism for regular scrutiny of human rights. The worry may not be that CEDAW has gained universal assent, but rather the pace and scale of implementation of measures to ensure gender equality.

270 New Zealand has slipped to 13th in the World Economic Forum’s Global Gender Gap Report 2014 from 5th over the period 2007-2010.

271 The Minister of Women’s Affairs dropped to 25th in a line-up of 26 ministerial appointments and remains a minister outside of Cabinet.

In 1948 the United Nations adopted a Declaration on the Rights of the Child based on one endorsed by the League of Nations in 1924. A further Declaration was approved by the General Assembly in 1959 but it was not until 1978 that the idea of an international Convention to protect the rights of children started to take hold. A Working Group on the Question of a Convention on the Rights of the Child272 was established by the UN Commission on Human Rights in 1979.273

The group operated by consensus - there was no formal voting and decisions were reached through debate and compromise which resulted in a protracted process and some proposals that had majority support being abandoned.274Conversely, it may also have facilitated the passage of the United Nations Convention on the Rights of the Child (CRC) and the near universal adoption by the UN General Assembly in 1989.

Although all the articles were closely scrutinised, some led to considerable controversy. They included decisions about when a child’s age began (and the related question of abortion),275 issues relating to freedom of religion, disputes over adoption and, perhaps most contentiously, the age at which children should be permitted to take part in armed conflict.

A draft was eventually agreed on and presented to the United Nations Human Rights Commission which sent it to the UN Economic and Social Council, which presented it to the UN assembly. (CRC) was adopted on 20 November 1989 and opened for signature, ratification and accession by General Assembly: Resolution 44/25. It entered into force on 2 September 1990, nine months after its adoption. No other international human rights instrument has entered into force so soon after its adoption or been ratified so widely and so rapidly.

CRC was unique in bringing together commitments for the protection of children that had been scattered through more than 80 international and regional treaties and declarations.

The Convention is made up of 54 articles divided into three parts and consists of the substantive provisions (Articles 1-41), the implementation provisions (Articles 42-45) and the final clauses (Articles 46-54). The following four articles encapsulate the general principles underlying the Convention:

272 The Working Group was open ended allowing NGOs and other non-state actors to participate as non-voting members. New Zealand was a non-voting observer. In 1981 it submitted written comments including calls for provision or children with disabilities, resisting provision relating to the employment of children and supporting gender neutral language.

273 The over representation of industrialised nations among the membership led to an ideological imbalance that only ended when a number of developing countries – particularly from among the Islamic states - became involved in 1988: Sharon Detrick, The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires (1992) Martinus Nijhoff Publishers

275 The issue was resolved by stipulating in the preamble that the child “needs special safeguards and care, including appropriate legal protection both before and after birth.”

The Convention includes economic, social, cultural, civil and political rights reflecting the interdependence of all human rights and the philosophical values of Western countries which prioritised civil and political rights as a defence against the excesses of the state, and Eastern-bloc nations who prioritised economic, social and cultural rights.276

As with other major treaties, accountability is achieved by a mechanism which involves ratifying States reporting on compliance to a specialist Committee. Article 44(1) of the Convention requires States to submit periodic reports to the Committee on the progress of implementation. A country’s first report is due within two years of entry into force for the State party concerned, and thereafter every five years.

The Committee published and adopted guidelines on the form and content of the periodic reports in 1996 and 2005. The process of preparing a report is designed to provide an opportunity for the State to reflect on its progress in implementing the Convention, and lay the basis for a “constructive dialogue” with the Committee on examination. The guidelines require reports to “strike a balance in describing the formal legal situation and the situation in practice”.

The reporting guidelines encourage States to group their analysis into sections, or “clusters”, beginning with a preliminary section on follow-up from the previous report, an overview of the national implementation mechanisms, budgetary and statistical data related to children and factors and difficulties of implementation. The substantive analysis of the report is then divided into the following eight categories:

The guidelines also provide guidance on how each section should be approached and the type of data the Committee expects from the State party. Article 44(2) allows the Committee to request further information from the State party on any issue. For State parties who have ratified any of the Optional Protocols, a further section is required detailing measures taken in respect of these instruments.

Following the submission of a State party’s report and before the hearing, the Committee holds a private “pre-session working group” with UN agencies and bodies, NGOs and other competent

276 Jonathan Todres, Mark Wojcik, and Cris Revaz, The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of US Ratification (2006) Transnational Publishers, New York at 13.

bodies such as National Human Rights Institutions and youth organisations. The country report is discussed and a “list of issues” compiled. The list is designed to give the Government an indication of the issues that the Committee is likely to prioritise. It also gives the Committee an opportunity to request further information and assist the Government to prepare for the hearing, which usually follows after three to four months. The government is required to provide the Committee with a response to the list of issues in advance of the hearing.

The State party’s report is discussed in public meetings. The dialogue is intended to be constructive, with discussion canvassing progress achieved, difficulties encountered and future priorities for implementation.

After the hearing, the Committee issues Concluding Observations, which include comments on progress, and suggestions and recommendations for future implementation of the Convention. These are made public and form part of the report that is adopted by the Committee at the end of a session. These reports are submitted to the United Nations General Assembly through the Economic and Social Council for its consideration every two years. It is expected that the concerns raised as concluding observations will be addressed in detail in the State party’s next report.

New Zealand ratified the Convention on 6 April 1993. In accordance with established practice it did not ratify CRC until it was satisfied it was already compliant with its obligations domestically.277

Nothing in this Convention shall affect the right of the Government of New Zealand to continue to distinguish as it considers appropriate in its law and practice between persons according to the nature of their authority to be in New Zealand including but not limited to their entitlement to benefits and other protections described in the Convention, and the Government of New Zealand reserves the right to interpret and apply the Convention accordingly.

The Government of New Zealand considers that the rights of the child provided for in article 32

(1) are adequately protected by its existing law. It therefore reserves the right not to legislate further or to take additional measures as may be envisaged in article 32 (2).

The Government of New Zealand reserves the right not to apply article 37 (c) in circumstances where the shortage of suitable facilities makes the mixing of juveniles and adults unavoidable; and further reserves the right not to apply article 37 (c) where the interests of other juveniles in an establishment require the removal of a particular juvenile offender or where mixing is considered to be of benefit to the persons concerned.

277 A prominent child advocate claims that the New Zealand government did not undertake the necessary review prior to ratification and that New Zealand did not comply in many areas, particularly the areas identified by the Human Rights Commission in its pre-ratification report to Government which identified corporal punishment in schools and the home, school expulsion procedures, lack of religious freedom for children in prisons and the minimum age for joining the armed forces as all non-compliant: “Victims of tokenism and hypocrisy: New Zealand’s failure to implement the UNCROC” by Robert Ludbrook in Advocating for Children at 110

New Zealand has reported to the Committee on three occasions in 1995, 2001 and 2008. The country has also reported twice to the Committee on the implementation of the Optional Protocol on the Involvement of Children in Armed Conflict in 2001 and 2008. Following each report, the numbers of positive observations have increased, suggesting greater attention to compliance.279

An informal Ad Hoc NGO Group was established in 1983. The group submitted annual reports to the Working Group and lobbied government delegations on specific proposals. The group was responsible for at least 13 substantive articles, the inclusion of provisions protecting children from exploitation and ensuring the use of gender free language. It also promoted the Convention and imbued the Working Group with a renewed sense of purpose.280

Possibly because of the role that NGOs played in the drafting process,281 Article 45 gives the Committee three unique capabilities which relate to NGOs and promises to provide a new model for constructive action by NGOs at the UN.

278 The Optional Protocol on the involvement of children in armed conflict was ratified on 12 November 2001. The Optional Protocol on the sale of children, child prostitution and child pornography was ratified on 20 September 2011

279 In 2003, the number of positives had risen to 12 and the number of concerns had jumped to 31. In 2011, the number of positives had risen to 31, and the number of concerns to 44.

281 Cynthia Cohen. “The United Nations Convention on the Rights of the Child: Involvement of NGOs” Human Rights Quarterly Vol. 12, No. 1 (Feb., 1990), 137-147

New Zealand NGOs played – and continue to play - a major role in the reporting process. The organisations that have been principally involved have been ACYA, Youth Law, UNICEF and Save the Children. ACYA has co-ordinated the preparation and presentation of a shadow report in the last three of the four government reports, with Youth Law co-presenting on the first report.283 ACYA also attended the country examinations and presented to the Committee privately, ahead of the Committee meeting with the Government.

In 1997, the Committee encouraged New Zealand to work towards withdrawal of the reservations. In 2003 it expressed disappointment at the “slow pace” of the withdrawal process, and its continuing concern at the reservations. In 2010 it recognised efforts were being made to remove obstacles to withdrawing one of the reservations, but that the reservation had not been withdrawn.

The following section identifies the government’s progress to withdrawing the reservations.

The government did not attempt to explain its reservation against children unlawfully in New Zealand until 2008 when it cited “resource implications” and the need for “effective immigration controls” to justify its position. It did, however, indicate that work had been undertaken to ensure that children without lawful authority to be in New Zealand had access to education284by repealing the provisions under the Immigration Act 1987 that made an offence of knowingly enrolling a child unlawfully in New Zealand.285 In relation to access to health services, the Government considered access for children and expectant mothers unlawfully in New Zealand were CRC compliant.286 Levels of access to social assistance and housing were being considered.287

The government’s principal justification for the reservation was the “shortage of suitable facilities”. In 2001 the Cabinet Social Equity Committee agreed in principle to withdraw the reservation288and in 2003, the government announced that it was building new youth units in male prisons, and undertaking research and policy work to determine whether changes would be needed to manage young female inmates. By 2008, the Government reported that youth units had been built and that

282 The first study was on the role of children in armed conflict. For more on the role of NGOs see Cohen, above

283 In 2010 Save the Children Fund also submitted a shadow report, Hear Our Voices, based on the views of children interviewed for the purpose of the report.

284 The New Zealand Human Rights Commission played a significant role in ensuring children unlawfully in New Zealand had access to education

286 NZ CRC 3rd and 4th report at 9, [26] ACYA acknowledged that the government had exempted providers of compulsory education from prosecution for providing educational services to children unlawfully in New Zealand. In relation to all other areas, it considered that children unlawfully in New Zealand did not have any positive entitlement to services for health care, welfare, housing and other services

it was now “fully compliant” with art 37(c) of the Convention.289 However the low number of young female prisoners meant separate youth units in female prisons was not viable but young female inmates were still held separately from those aged 18 and over unless it was otherwise in their best interests.290

Despite this the reservation not removed. The 2008 CRC Work Programme summary report suggests the reason for this is largely financial.291Further work is required in relation to Police transportation and custody for court appearances, before the reservation can be lifted. A report back to Cabinet in July 2008 identified that the work required to be compliant in all Police and court-based situations is more substantial than originally anticipated. Cabinet noted that while work would continue towards the removal of the reservation, it will not be lifted in the short-to-medium term because of the excessive cost of full compliance.

The Government has provided two justifications for this reservation. The first is cultural – that New Zealand has a long-established tradition of children and young people working part-time and during holidays in jobs such as fruit picking or newspaper delivery. This encouraged young people and children to “develop skills and foster an attitude of independence for their own and society’s benefit”.292

The second is that New Zealand’s legal framework already provides adequate protection children and youth in employment. The framework includes:293

The Commissioner for Children does not consider the reservation a concern. The government’s position was also supported by research by the Department of Labour in 2002 and 2003 which found that part-time employment among school-age children was “widespread, not harmful, and in the main, well regulated by health and safety regulations and education legislation.”294

289ACYA has disputed the Government’s assessment of its compliance. In its shadow report in 2010, it acknowledged the Department of Corrections had developed a ‘test of best interests’ for the housing of young male prisoners but that it still resulted in children being held with young adult prisoners.

290 NZ CRC 3rd and 4th report at 12, [40] 291 CRC work programme 2008 report, at 6 292 NZ CRC 2nd report at [35]

294 3rd report at [35] In 2008 the government noted that the Minister of Labour had written to the International Labour Organisation (ILO) to explore options for ratification of ILO Convention 138, considered a proxy for Art 32(2) of CRC. Work programme summary paper 2008 at 7 In 2010, ACYA pointed out that ratification of ILO Convention 138 or the removal of the reservation to art 32(2) of CRC seemed unlikely

There appears to be little prospect of the reservation relating to children unlawfully in New Zealand be removed - principally for financial reasons. While there has been a concerted effort to address the issues of mixing of youth and adults in detention the reservation appears unlikely to be removed in the foreseeable future.

The New Zealand government has been challenged consistently on the lack of a national action plan for children on the implementation of CRC that involves:

In its second report, the Government conceded it was an issue, and that “there has not been a single comprehensive policy statement incorporating the principles of the Convention”.295 Rather, there had been “a number of policy statements...issued across a range of sectors”296such as the Children’s Policy and Research Agenda (the Agenda), which was designed to provide a framework to inform policy development and research, and the Youth Development Strategy Aotearoa, which promoted a developmental and preventative approach to issues facing young people.

At the time of its release, the Agenda attracted wide support both from the NGO sector and the Committee in its 2003 Concluding Observations. From 2004 onwards, however, it seems to have disappeared from the government’s policy programme, notwithstanding that in its third report the government insisted that the Agenda and the Youth Development Strategy Aotearoa continued to “provide platforms to inform work to place children at the centre of policy-making”.297

The nearest thing to a unified national strategy was the CRC Five-Year Work Programme led by the Ministry of Youth Development. As well as providing direction, the programme was a means for monitoring the Government’s CRC-related work. The Ministry of Youth Development reported on it to Cabinet four times. It initially contained 28 items,298 covering the Convention and the Optional Protocols for children in armed conflict and the sale of children. Each item contained smaller progress “milestones”, and by the final report in 2008 with two exceptions all the milestones were said to have been achieved.299 No further work programme has been established. In terms of policy coordination, the Government has never designated a particular agency or Ministry to take responsibility for coordinating and implementing CRC-related work.

In its initial report the government identified four different departments relevant to CRC’s implementation: The Ministry of Youth Affairs, the Department of Social Welfare, the Office of the Children’s Commissioner and the Crime Prevention Unit of the Department of the Prime

297 NZ 3rd CRC report at [59]. ACYA criticised the Agenda’s failure to detail any specific actions or timelines, or allocate any responsibilities for the actions needed and considered that the Agenda was “merely a statement of general principles” that was reflected in its lack of implementation by government agencies

Minister and Cabinet (CPU DPC).300 In its second report the Government reported that the Department of Social Welfare had ceased to exist and that the Ministry of Youth Affairs had responsibility for co-ordinating New Zealand’s reports to the Committee, but did not identify any central focus stating rather that “all agencies are responsible for implementing CRC”.301 In the third report, it noted that the Ministry of Youth Affairs had combined with parts of the Ministry of Social Development to become the Ministry of Youth Development. It, and the Department of Child, Youth and Family Services, had both become service lines of the Ministry of Social Development (MSD), with the MSD assuming responsibility for the Government’s CRC reporting obligations. The Government has defended these reforms as necessary to improve coordination, increase capacity and better align resources to improve outcomes for children and young people.302 However, with government departments being split, reformed and amalgamated right over New Zealand’s reporting period, a picture of continuous administrative upheaval emerges. Significantly, in its second report to the Committee the government acknowledged, in relation to James Whakaruru’s death in 1999, that “lack of co-operation across levels of government” was a problem in implementing the Convention.303

A CRC Advisory Group was established following the second report to facilitate dialogue on the Convention between government and NGOs. In the consolidated 3rd and 4th report, the New Zealand government referred to the Advisory Group’s “invaluable” input and feedback on the reporting process as well as assistance with a CRC work programme forum in mid-2006. However, the group had no formal powers or legal status and was discontinued when responsibility for reporting shifted to the Ministry of Social Development in 2009.304

In 2011, Dr John Angus, the then Children’s Commissioner, convened a meeting of the past members of the Group to discuss how implementation of the Concluding Observations could be monitored. This led to the formation of the CRC Monitoring Group (UMG). The UMG continues to be coordinated by the OCC. It meets regularly and, in liaison with the Deputy Chief Executives Social Sector Form (DCE SSF), has taken a lead role in developing a high level engagement process with the Government on CRC work. The UMG and its process of engagement with the DCE SSF is unique in that it is the first time there has been high level engagement between the Government and civil society on the implementation of CRC. Some progress has been made, including the DCE SSF agreeing to assume the role of the governmental coordinating mechanism, and preparatory work in the development of a CRC Work Programme.

The Office of the Children’s Commissioner was created by the Children, Young Person and Their Families Act 1989 (CYPFA), prior to ratification of CRC. It later received its own empowering legislation, the Children’s Commissioner’s Act 2003, which gave it three functions: monitoring services delivered under the CYPFA, raising awareness and monitoring governmental implementation of CRC, and advocating for children. It also oversees the handling of child and youth related complaints of children in the care of the state.305 Its work has consistently featured in the New Zealand government’s reports to the Committee, and the Commissioner states that it

300 NZ CRC 1st report at [8]-[11] 301 NZ CRC 2nd report at [163] 302 NZ CRC 3rd report at [55]

uses the Convention as a “basic standard in considering policy and legislation”. However its role largely centres on research, advocacy, and the monitoring and investigation of CYPFA services and complaints.306 The current Commissioner, Dr Russell Wills, has acknowledged the tension between maintaining a close relationship with the government whilst maintaining an independence from it. He personally preferred working closely with the government, seeing this as more constructive than maintaining a distance.

There still is no consistent long-term policy or national action plan related to children despite the endorsement of the Committee’s recommendations in public submissions, the development of the comprehensive, child-based “First Call for Children” policies by the Waitakere and Christchurch City Councils,307and the recommendations for greater recognition of child-centred policy-making in central government by the Public Health Advisory Committee to the Minister of Health.308

The failure to allocate responsibility for CRC’s implementation to a single agency or Ministry may explain the lack of development of an action plan in New Zealand. As a lack of coordination has been identified as a problem, the lack of positive initiative in this regard should be considered a significant deficiency.

The dominant issues in the area of healthcare for children are the prevalence of “diseases of poverty” such as pneumonia, tuberculosis, rheumatic fever and meningitis309and the disproportionate number of those in lower socio-economic groups and Māori and Pacific communities affected.

In its initial report, the New Zealand government emphasised its commitment to providing “comprehensive, publicly funded child and family health services”.310A significant part of this was free provision of services or subsidies for primary health services and some secondary health services for children.311 Education is also seen as a significant component of the Government’s health strategy and has involved campaigns about parenting support, injury prevention, smoking and alcohol consumption and immunization.312

A number of initiatives have targeted reduction of inequalities in health outcomes for Māori and Pacific communities and families with disabled children including the development of Māori and Pacific Health Action Plans and the nurturing of Māori and Pacific health providers to enhance capacity. Strategies have also been developed for children with disabilities and in the mental health sector. Despite this, inequalities in health outcomes for Māori, Pacific and socio-economically disadvantaged sectors of the community remain and are consistent themes in the government

306 NZ CRC 1st report at [60] 307 NZ CRC 2nd report at [32] 308 ACYA 2010 report at 1.21

309 Other areas include high rates of Sudden Infant Death Syndrome (SIDS), car accidents and adolescent health issues, such as drug and alcohol abuse, sexual and reproductive health and youth suicide

311 NZ 1st report at [215]. Pre- and postnatal healthcare for mothers, including screening and preventative care, midwifery and well-child services are also free.

reports, the NGO shadow reports and the Committee’s concluding observations.313 The government’s child health policy and strategy development has also been an issue.

New Zealand’s initial report did not refer to any specific health policy or strategy, apart from the National Immunization Strategy. In the following report, there was significant comment directed at the Child Health Strategy, the New Zealand Health and Disability Strategies,314 the Youth Suicide Prevention Strategy and a number of mental health strategies.315By the Government’s third and fourth report however, the policy and planning framework seems to have changed significantly. There was discussion of the Māori and Pacific Health Action Plans but no indication that children were a primary focus of these plans.316

The shortage of services, workforce development and resources in some areas of the health sector has also been a problem, especially relating to Māori and Pacific health, mental health, and alcohol and drug addiction. Workforce shortages in the mental health sector and the under-representation of Māori and Pacific Island people in the health workforce generally were considered serious concerns.317 Related to this was the impact of the health sector’s ongoing restructuring on health outcomes for socio-economically disadvantaged groups. The Government defended this as part of its new drive towards a “population-based approach to improving New Zealand’s’ health and wellbeing”318describing the changes as necessary to “increase[ing] efficiency and consistency”319in the health sector.

The rate of diseases affecting New Zealand children has risen dramatically, especially amongst socially disadvantaged segments of the community. Many of these diseases are both preventable and treatable. To suggest that there is a single cause for this is disingenuous. The causes of adverse health outcomes affecting New Zealand children are varied, and not limited to simply the provision or availability of services - although this is a significant factor. Other social determinants, such as family income and quality of housing are significant drivers. Positive aspects of the Government’s activities in this area include the extra funding provided to the mental health sector, and the progression of the “one-stop shop” model, a health care service model delivering integrated services targeted at high needs communities.

However, there does not appear to be any direction on the provision of child health care despite calls by the Committee. As a result there are inconsistencies in the adequacy and appropriateness of healthcare available to children throughout New Zealand. Where there have been significant policy or strategies, they have often been under-resourced and poorly executed. There is little evidence of measures to protect the delivery of health services to children in socially disadvantaged communities during reorganisation of the health sector.

313 A range of contributing factors were pointed to by ACYA and the government, including policy decision-making, discrimination and poverty Although ACYA noted that the Primary Health Strategy had improved access to primary health care for many New Zealanders, it expressed concern that significant barriers remained and that there was “no overall public health strategy to improve the health of children”

315 NZ 2nd report at [293] ACYA’s criticised the Government’s implementation of these strategies, describing it as “very slow” and lacking funding and support for the Ministry’s otherwise “excellent policy documents.”

316 NZ 3rd report at [280]-[282]. The cumulative effect of this appears to inform ACYA’s criticism of the government’s “lack of consideration of children in policy decision-making” and its “adult-centred” processes

Until it was repealed in June 2007, s 59 of the Crimes Act 1961 allowed parents to use “reasonable force” for the purposes of “correction” as long as the force used was “reasonable in the circumstances”. This contravened Art. 37(a) of CRC which states:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Read together, the UN Committee has interpreted these articles as asserting a right of children to be free from corporal punishment. In the Committee’s eighth General Comment, it remarked that:

There is no ambiguity: “all forms of physical or mental violence” does not leave room for any level of legalized violence against children. Corporal punishment and other cruel or degrading forms of punishment are forms of violence and States must take all appropriate legislative, administrative, social and educational measures to eliminate them.

Although the Commissioner for Children had long sought the repeal of s 59, the government’s position initially was ambivalent. The preferred option was promotion and education campaigns on alternatives to physical punishment, such as the ‘Alternatives to Smacking’ campaign in its ‘Breaking the Cycle’ programme, and its ‘Smack-free Week’ initiative. The objectives of such campaigns were to raise awareness of alternatives to smacking. In its second report, the government advanced a further justification for retaining s. 59. Namely, that New Zealand’s legislative framework provided children with sufficient protection. It also commented that it was not inconsistent with many other countries on this, a point recognised by the UN Committee itself.320

By the time of its third report in 2008, the Government was able to report that s 59 of the Crimes Act had been repealed, bringing its position in line with the Convention’s provisions.321 New Zealand is now one of only 38 countries that have legal protections for children against all corporal punishment as at 2014.322

The amendment was the result of a private members bill. In her introductory speech in Parliament its sponsor, Sue Bradford, cited CRC as influencing the change, saying it was “high time” that New Zealand lived up to its commitments as a signatory of the Convention.323 Tariana Turia (Māori

/frame.html) indicates that although a large majority of states had prohibited corporal punishment of children in penal institutions and schools, most had not prohibited it in the home. ACYA acknowledged the educational efforts on the part of the government, but expressed disappointment that the repeal of s 59 was not considered a priority, especially given the Government’s own documenting of the widespread opposition to the practice by young people in its 2002 Agenda for Children ACYA considered the continued existence of s 59 to be “a saddening illustration of the minimal political status of children in New Zealand”

321 The amendment also included the discretion under s 59(4) that allowed the police not to prosecute “where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”

Party) expressed her support for the bill during debate at the third reading, citing the cost to New Zealand’s international reputation of being in breach of the Convention.324 Overall, UNCROC and the concluding observations had a significant influence on the repeal of s.59.

The child’s right to an adequate standard of living is guaranteed under Article 27. This right is a foundational right on which most other rights depend.325To be adequate, the standard of living must enable the child’s physical, mental, spiritual, moral and social development.

While parents or those responsible for the child have primary responsibility for the conditions necessary for his or her development, State Parties are required to take appropriate measures to assist parents and others to implement the child’s right. Where there is need, the State is obligated to provide material assistance and support programs. The level of support should accord with national conditions and be within the means of the state.326 Benefits should be adequate and monitored regularly to ensure beneficiaries are able to afford what they require to realise their Covenant rights.327

The right to an adequate standard of living under CRC is similar to Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee on Economic, Social and Cultural Rights has issued a General Comment emphasising the importance of the right to social security under Article 9 of ICESCR, which states that, through its redistributive character, it plays an important role in poverty reduction and alleviation by preventing social exclusion and promoting social inclusion.328 It requires that benefits, including cash benefits and social services, be provided to families without discrimination on prohibited grounds, and should cover food, clothing, housing, water and sanitation, or other rights as appropriate.329The withdrawal, reduction or suspension of benefits should be circumscribed, only on grounds that are reasonable, subject to due process, and provided for in national law.330

Children also have protection against discrimination. In the area of social security, ICESCR stipulates that ‘special measures of protection and assistance should be taken on behalf of all children and young persons without discrimination by reason of parentage or other conditions’ (Article 10.3). There is also an obligation under CRC for a State to take all appropriate measures to ensure the child is protected against all forms of discrimination on the basis of the status of the child’s parents, legal guardians or family members.

The Children’s Commissioner estimates that 285,000 of New Zealand children (or 27%) live in poverty. Ten per cent of children live in severe poverty, and three out of five will remain in poverty

324 Two other Members of Parliament, Steve Chadwick (Labour) and Judy Turner (United Future), also referred to the Convention in their addresses: Hansard, Volume 639, Week 44 - Wednesday, 16 May 2007

325 As Article 27 itself recognises, an adequate standard of living is necessary for the child’s physical, mental, spiritual, moral and social development.

326 Note in furtherance of the right to an adequate standard of living the state must also take all appropriate measures to secure the recovery of maintenance for the child from a responsible parent.

328 General Comment No. 19, The Right to Social Security at [3] 329 General Comment No. 19, The Right to Social Security at [18] 330 General Comment No. 19, The Right to Social Security at [24]

for much of their childhood.331 Children in families where the parent is in receipt of an income tested benefit are disproportionately represented in child poverty statistics.332

New Zealand has not always had such high rates of poverty. The present situation has its origins in the 1992 benefit cuts. Since then child poverty rates have never fallen below 22 per cent. In 2002 the government started work on developing proposals to support children in poverty and their families. The resulting 2004 Working for Families (WFF) budget package prioritised budgetary allocations to address child poverty333but only benefitted children whose parents were in paid work. Children whose parents were on income tested benefits mostly received no immediate gains from WFF and their situation worsened over time. Policy documentation subsequently indicated that WFF was developed without any reference to CRC or other human rights commitments.334 The obligation the government made under CRC to provide social security payments at a level to provide an adequate standard of living was ignored.

In 2010 Cabinet established a Welfare Working Group to provide recommendations on how to ‘reduce long term welfare dependency for people of working age’ in order to achieve better social and economic outcomes for people on welfare, their families and the wider community”. The Group reported in 2011 with a raft of recommendations aimed at moving people off welfare and into work. Legislation was subsequently enacted in the form of the Benefit Categories and Work Focus Amendment Bill 2012 to implement the recommendations.

The terms of reference of the Welfare Working Group and its report were criticized by many as not examining whether long term benefit dependency was, in fact, an issue in New Zealand and whether the benefit levels were adequate.335In 2012 the Children’s Commissioner established an Expert Advisory Group to address the issue of child poverty. The group reported in December 2012 with 78 recommendations. The Children’s Commissioner advised that 26 of the 78 recommendations have been picked up in the 2013 and 2014 government initiatives.

In 2006 the Child Poverty Action Group (CPAG) launched proceedings under Part 1A Human Rights Act 1993 against the Attorney General in relation to a provision in the Income Tax Act called the ‘off benefit rule’ or the In Work Tax Credit. A generous tax credit was available to parents of dependent children but eligibility depended on parents being in full time work. The

331 Office of Commissioner for Children: Child Poverty Monitor 2013. It uses the measure of 60% below median family income moving line, though also measures poverty via the Economic Living Standards Index.

332 The 2008 Economic Living Standards Survey revealed almost 60% of children in beneficiary families experienced a ‘marked degree of hardship’ compared to 15% of children whose parents were in paid work. This proportion has not improved since then.

334 For example Art 10.3 ICESCR which prohibited discrimination against children on the grounds of parentage in the provision of child assistance schemes

335 See, for example, the Alternate Welfare Working Group Report by Child Poverty Action Group December 2010.

336 The case was appealed twice, was partially successful at the tribunal, failed at the High Court and though it succeeded on the prima facie discrimination claim at the Court of Appeal ultimately it was unsuccessful under s 5. The Court found the government had justified the discrimination. The following citations refer to the substantive decisions: CPAG v AG [2008] HRRT 31/08; CPAG v AG CIV -2009-404-273, CPAG v AG 25 October 2011 (HC); [2013] NZCA 402; [2013] 3 NZLR 729 (CA).

government claimed the sole purpose of the benefit was to encourage work and create a gap between those in work and those on benefits

Before the Tribunal, officials were questioned about whether they had taken account of their obligations under CRC in developing the policy. In its decision the Tribunal noted that New Zealand’s obligations under CRC were not mentioned in the relevant cabinet paper and it was not unfair to say that this dimension of the package did not appear to have been given any significant consideration.337

The High Court described the government commitments to provide an adequate standard of living as expressed ‘in aspirational terms’ and unless they were reproduced in domestic legislation, they did not create obligations enforceable in judicial proceedings. Although the judge conceded that they could influence interpretation of human rights’ provisions in New Zealand statutes, it found, in a case concerning poverty and Article 27 that there was no role for them in the judicial analysis.338The Court of Appeal also found that CRC obligations under Article 27 had no role to play in the court’s analysis although it acknowledged that the absence of a reference to human rights obligations in the policy process could reduce the deference the court afforded the government. However, even recognizing their ‘obvious importance’ and that closer attention to them in the policy development process would have been ‘beneficial’ the Court did not rely on those observations to mitigate the deference to the legislature’s decision.

Mrs Harlen was convicted of benefit fraud for living in a relationship in the nature of a marriage with a man while receiving the domestic purposes benefit. She was imprisoned for 6 months and the Ministry demanded $117,598.84 in restitution. It started deducting $10 a week from her benefit. Her request for the debt to be waived was rejected by the Ministry and Social Security Appeal Authority. On appeal to the High Court, Article 27 was argued as a relevant consideration in exercising the discretion on whether steps should be taken to recover the debt. The High Court agreed it was relevant and had not been considered. The adequacy of Mrs Harlen and her dependent daughter’s standard of living had not been part of the Ministry’s consideration.340

The government attempted to legislate to address the effect of the decision by introducing a bill which would have removed the domestic obligation on the Chief Executive to consider human rights when exercising its discretion.341The Select Committee reported back with amendments that included reinstatement of relevant considerations in the discretionary decision making process

338 At [53] the Judge noted: “Although we are mindful of the international commitments made in the various covenants, we have not found it necessary to rely on any of the content that was drawn to our attention, in settling on the appropriate interpretation of the relevant human rights provisions in New Zealand’s domestic legislation”. 339 Harlen v CE MSD [2012] NZAR 185 (HC) at [62] to [68]

340 The High Court remitted it back to the Authority which confirmed the original decision. That decision is currently on appeal to the High Court.

341See New Zealand Law Society submissions on Social Security (Fraud Measures and Debt Recovery) Amendment

Bill, 10/10/13 at para [6]: ‘The Law Society is particularly concerned by the proposal that the chief executive be expressly permitted to disregard relevant considerations (including New Zealand's international human rights obligations) in determining the rate and method(s) of welfare debt recovery unless such considerations are identified in a Ministerial direction. The Bill's explanatory note singles out the right to an adequate standard of living (protected by article 11 of the International Covenant on Economic, Social and Cultural Rights) as a consideration to which the chief executive is expressly not required to have regard to unless it is so identified. The justification for the proposal is far from apparent’.

(including human rights considerations). The attempt to reverse the court’s decision as it related to Article 27 was therefore only partially successful.

Overall the case law suggests that Article 27’s role in the judicial process will be determined on a case by case basis. While the door is open for the courts to consider claims of discrimination relating to economic and social rights - including a right to an adequate standard of living - Article 27 is less likely to be influential the greater the macro-economic issues. However there are many situations, such as Harlen, where Article 27 may be pivotal and even the Child Poverty case includes some positive features for future adjudication.342

Since ratification all governments have had a strategy of supporting children out of poverty by getting their parents into work. However, such strategies have some significant flaws. For example, there is a lack of quality, affordable and available childcare and out of school care and there will always be parents who, for one reason or another, are unable to work (illness, disabilities, accidents, redundancies, natural disasters, unemployment, sick children, or other caring responsibilities).

Article 27 has not been mentioned in government policy goals for the past 25 years. Successive governments have worked to move societal thinking to a new meaning for ‘social security’- namely that the State is not responsible for supporting parents to provide an adequate standard of living to their children, when the parent cannot do so. Rather the government’s role is limited to providing some assistance to parents to do so.343

CRC is one of the treaties referred to most frequently by courts and advocates in New Zealand.344 CRC has been used by counsel in three areas: immigration, particularly in relation to deportation; youth sentencing for criminal offending; and family law cases. These areas are discussed below, largely in relation to Supreme Court and Court of Appeal decisions.

342 The Court of Appeal granted leave to hear the case after the High Court had declined leave on the grounds that the issues were not justiciable signalling to the Executive that the Government would need to be able to justify policies of discrimination regardless of whether they involved economic and social policies.

343 Placing work requirements on social security beneficiaries would not be in breach. However for those who cannot work through circumstances outside their control or cannot find work despite meeting all job seeker obligations, and so are totally reliant on the state, then the state must provide the parent with an dequate standard of living.

344 It was reported in a ten year period (Dec 1999 to June 2010) that CRC was referred to 163 times in court decisions and ICCPR 164, Krommendik above n 150

There has been considerable interaction between the courts, the executive and legislative on the role CRC should play in immigration decisions relating to removal of parents of dependent children. While Parliament has at times intervened in court decisions, neither has the executive removed the requirement that immigration officers take CRC considerations into account in making deportation decisions.345 The courts too have been mindful not to put too significant a burden on the Executive during the deportation consideration exercise. The high point was Puli’uvea v Removal Review Authority where the Court of Appeal held that human rights considerations formed part of the pre-existing humanitarian considerations exercise rather than as an add on.346

A year after New Zealand ratified CRC the Court of Appeal considered the case of Tavita v Minister of Immigration.. Mr Tavita was subject to a removal order. He had a 2 year old daughter born in New Zealand and was married to her mother. He appealed the removal order on the grounds that the Minister had not taken account of its obligations under the ICCPR or CRC in enforcing the order.

The Crown accepted that the case had never been considered from that point of view but argued that the Minister was entitled to ignore international instruments. The Court observed that this was an unattractive argument, apparently implying New Zealand’s adherence to its international obligations was partly window dressing. It noted that the bearing such documents had on the law is constantly evolving. The Court adjourned the case and stayed the removal order, noting that whatever the merits or demerits of either of her parents, Mr Tavita’s daughter was not responsible for them and her future as a New Zealand citizen was inevitably a responsibility of New Zealand. Universal human rights and international obligations were involved.

The Immigration Service responded by changing its procedures to ensure the decision making ‘balanced recognition of the rights of New Zealand citizens and residents affected by immigration decisions and New Zealand’s right to determine who may lawfully enter and remain within its borders’. Officers were advised they were required to consider government obligations under CRC and other human rights treaties when making removal decisions.

In Puli’uvea v Attorney-General 3 of the 4 children were New Zealand residents but neither parent nor the oldest child were. The parents and older child were subject to a deportation order. The Court of Appeal, in an application for judicial review, affirmed that legislation should be interpreted consistently with New Zealand’s treaty obligations. Although there was no explicit reference to the obligations in the decision making process, the court was satisfied that officials had considered the Convention obligations in relation to the family. An explicit reference was unnecessary so long as the relevant law had been complied with.

In Huang v Minister of Immigration347the child was a New Zealand resident but both his parents were over stayers. His mother had given birth to him while she was an over stayer. The parents challenged their removal orders because of the impact on the child. The Court of Appeal indicated

345 Since July 2014, immigration officers are obliged under statute to consider relevant human rights obligations, including UNCROC: s. 177(3) Immigration Act 1999. For the most recent decision see LIU v CEMBIE [2014] NZCA 37 (HC); [2014] 2 NZLR 662 (CA)

that a proper assessment under s 47(3) of the Act348satisfied New Zealand’s obligations under CRC and ICCPR, as long as it was done close to removal. Immigration officers did not need to carry out a review of everything that had gone before when reviewing the decision to remove. Rather an up to date assessment in which the best interests of the child were taken into account as a primary consideration was required. While CRC was still a requirement it did not need to be recorded on the decision making document, as long as it was included under s 47(3). The following year the Supreme Court remitted two decisions back to the NZIS for reconsideration as the decision makers had not asked the correct question under s 47(3).

Ye v Minister of Immigration349 involved two couples. While awaiting decisions about their refugee status Mr Ye and Ms Ding had 3 children. The Qui family had two. The Court held that what was contrary to the public interest required something more than a general concern for the integrity of the immigration system. Under article 3 of CRC the child’s interest was a primary consideration in the decision making process but not the paramount consideration. This construction effectively suggested that Parliament had legislated consistently with international obligations.

Representing children separately would impose an undue burden on the Immigration Service but it would be inconsistent with article 12 of CRC to say that officers are never obliged to look beyond what parents may advance in the interview process. There may be circumstances where the parents cannot adequately put forward all that could be said on behalf of the child. Children who are capable of expressing views should have those views given ‘due weight’ in accordance with the child’s age and maturity.

With the Ye children the decision had failed to account for the effect of China’s one-child policy. It had also erred in the question it posed under the assessment of children’s rights asking whether it ‘would be in the best interests of the children to be removed to China given their mother was to be removed there’, rather than ‘should their mother should be removed from New Zealand in the light of the best interests of her children’. In the Qui decision the same approach had been adopted on the latter point.

Parliament amended the Immigration Act - officers were no longer obliged to apply the s 47(3) test but were only required to consider cancelling deportation if they were provided with information about an applicant’s personal circumstances relevant to New Zealand’s international obligations. It became a mandatory consideration to ‘have regard’ to relevant international obligations where they affected personal circumstances.350

In CEMBIE v Lui,351 the Appellant was served with a deportation order towards the end of a prison term he was serving for violent offences against his partner. He claimed his deportation would breach the child’s rights under CRC.

The Immigration officer had considered a wide range of CRC articles but not article 9.1. The High Court referred the decision back – saying that while it was laudable that the officer had done a thorough assessment the failure to comply cannot be treated lightly. Not considering article 9

348 Whether there are ‘exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand’.

(child’s right not to be separated from parents) was clearly relevant in this context. Up to that time other decisions had seemed to suggest Article 9 did not apply where the decision was an immigration one. The court rejected this but the Court of Appeal overturned it.

Although CRC has been raised in the family law context it has had a lesser role than in the area of immigration, possibly because the Care of Children Act 2005 incorporates the content of the relevant Convention articles.352

In K v B a mother wanted to relocate with her two children to Australia as she had substantial support there. The father was Algerian.353 The Supreme Court noted that sections 4 and 5 of the Care of Children Act 2004 were consistent with articles 9.3 and 18.1 of CRC but nothing in the Convention was of assistance in resolving the issue.

The Court adopted a similar approach in D v S. The case involved a shared custody application under s 11 of the Guardianship Act.354 The court observed that s 23 of the Guardianship Act 1968 which required the Court to consider the best interests of the child as the paramount consideration was consistent with the relevant provisions of CRC. In a dissenting decision Glazebrook J would have used CRC to support her position that the child, who was not provided for in a will, should have been treated as a living child at the time of the marriage, under s 3(1) of the Family Protection Act 1955. He had not been born at the time of his parents’ marriage. Had he been, he would have had a right to inherit along with his brother.355 The majority decided without reference to CRC.

In Hemmes v Young356Mr Young who had been adopted sought a declaration under the Status of Children Act 1999 that his biological father, Mr Hemmes, was his natural father. Section 16(2) of the Adoption Act had severed all legal links between an adopted child and their parents. The Court concluded that CRC (and ICCPR and European Court jurisprudence) does not provide for a right to know one’s genetic origins. The Court read down s.16(2) in a rights conscious way, permitting Mr Young to seek a paternity order. The Supreme Court found s10 of the Status of Children Act was determinative and there was no feasible alternative interpretation which would enable Mr Hemmes to access rights under CRC. It emphasised however that this did not prevent an adopted child from seeking to prove that another person was his legal parent if it was necessary for another proceeding.

In a further case a natural mother sought to revoke an interim adoption order. The High Court accepted the irrevocability of consent argument but, relying on CRC, particularly Article 21, considered that the welfare and interests of the child would not be promoted by making a final adoption order. The adoptive parents appealed and the Court of Appeal upheld their appeal. It held CRC was not relevant where the legislation made it clear that revocations should only be made in situation of urgency. Hence something had to have arisen that was so serious that the adoption process should be stopped immediately. CRC did not have an interpretative place unless that threshold was met.

352 There is also considerable extraneous material such as the General Comments on the construction of particular articles that can assist interpretation domestically.

On the other hand, the decision in T v S the Court of Appeal upheld a decision that the child could be made a guardian of the court for the purposes of carrying out DNA testing to determine if the applicant was the father.357 The birth mother, who had told the applicant he was the father following conception and birth, later named another man and refused to consent to the test. The Court was reluctant to adopt an interpretation of the relevant provisions of the Family Proceedings Act (ss. 54-59) that would be inconsistent with CRC particularly the child’s right to know and be cared for by parents (Article 7) and the obligation on the state to provide assistance and protection to a child to re-establish his or her identity (Article 8).

In Re an Unborn Child the High Court held, relying upon CRC, that the term ‘child’ in s.2(1) of the Guardianship Act 1968 included an unborn child and the child could be placed under the guardianship of the High Court to protect its birth being filmed as part of a pornographic film.358 The Court referred to the preamble to the Convention which stated that a child, by reason of physical and mental immaturity, needs special care before as well as after birth.

UNCROC has had a significant impact on family law both by Parliament enacting legislation that is consistent with CRC and the courts recognising the relevance of CRC in decision making.

CRC has had an impact in the area of criminal law in relation to sentencing. In R v Titoko359 a young man appealed his sentence of four years imprisonment for rape on the grounds that insufficient allowance had been made for his age. The Court of Appeal noted Article 37(b) UNCROC which requires a court to impose the shortest term of imprisonment for a child offender. The decision was affirmed - and the reference to CRC - repeated by the Court in Churchward v R which discussed at some length policy issues relating to sentencing young people.360

In cases where the seriousness of the offending requires sentencing to be transferred to the District Court from the Youth Court, CRC has had a significant influence. The Court of Appeal has held the CYFS regime is not an exclusive code and a young person transferred to the District Court is subject to the Sentencing Act and its principles subject, however, to the qualifications in CRC.361 A young person’s best interests should be the primary consideration in sentencing. There was no limit to the discount for youth as this would be inconsistent with the Judge’s duty to accord the child the rights he or she enjoys under CRC.

The Court followed this approach in R v M 362 [2011] NZCA 673 and discussed the application of CRC to the appeal against dismissal of a rape charge where both victim and accused were entitled to protection from the Convention. The Court of Appeal upheld the appeal noting that delay that would be unexceptional for an adult may require greater scrutiny in the case of a youth. The youth of the complainant was relevant in bringing her abuser to justice but this had to be balanced against the best interests of the accused child in a prompt trial. R v Rapira, suggests that because New

Zealand has a relatively favourable law compared to its CRC obligations, the Convention is actually used to downplay the effect of youth on sentencing.363

CRC has not protected dependent children from separation from their sole parent even for property crimes. In R v Harlen,364 the Court of Appeal acknowledged that the family situation of a convicted person is relevant to sentencing but CRC did not require the courts to take a different approach to that mandated by existing legislation. Article 9 was read down because it was concerned with children separated as a result of domestic situations and not with the decision to imprison the parent.

In R v Taki365 the court held that CRC was relevant to the administration of a sentence, rather than the sentence itself, and it was unfortunate that many women prison inmates were caring for young children and incarcerated a considerable distance from their family.

There has been a discernible increase in national awareness about children’s rights over the past 25 years, and New Zealand’s ratification of CRC appears to have played an influential role in that trend. One example of this is the policy platforms of both major political parties and many of the minor parties in the 2014 elections.

Some of those interviewed noted that the reporting process is an important and effective platform for lobbying and advocacy of children’s rights in New Zealand. NGO representatives commented on CRC’s effect in providing a forum and framework to meet, share information, and identify and agree on key issues to assist their lobbying of the government both domestically and internationally.366The Office of the Commissioner for Children has its own legislation which includes CRC monitoring and advocacy responsibilities. The government has passed the Care of Children Act 2004 and the Vulnerable Children Bill 2014 which are consistent with the principles in CRC and has repealed section 59 of the Crimes Act to prohibit corporal punishment of children, a change consistently called for by the United Nations Committee.

However, there has also been some regression. For example, the age of prosecution in the Youth Court has fallen from 14 to 12 for serious indictable offences and young people are dealt with in the adult criminal justice process for certain offences at 17 rather than 18 as required by CRC. The Office of the Commissioner for Children is poorly funded. The only specialised youth legal centre in the country (Youth Law) has had major funding problems over the past five years and the government has refused to fund any law reform or advocacy work related to its policies.

The government has displayed considerable inertia in progressing children’s rights possibly because there has been no specific agency responsible for the implementation of children’s rights in New Zealand despite repeated requests by the Committee. The periodic reports show a changing number of entities responsible for aspects of child-related work. Some – such as the UNCROC Advisory Group - were established but have fallen into disuse. Others, like the Office of the Children’s Commissioner and the Ministry of Youth Affairs only have an advisory or advocacy

366 Alison Cleland of ACYA considers that the process of reporting creates an opportunity to collect and collate invaluable information on children and the formality and the international context emphasises the importance of children’s rights at home.

role. However, the recently established CRC Monitoring Group and its link with the Deputy Chief Executives Social Sector Form may result in more high level government policy development in relation to CRC.

The impact of the Committee’s Concluding Observations themselves in New Zealand’s domestic context has been limited. A typical response of successive governments to matters they do not agree with led to the assertion that New Zealand’s human rights record is still well ahead of other countries, particularly those countries represented on the Committee.

The judiciary is aware of the Convention, and at times has taken the initiative to align decisions with it. It has been used in an immigration case involving deportation and is now a regular feature in youth sentencing. Although international human rights treaties have been found to be relevant to the exercise of the government’s discretion, an attitude still prevails that human rights treaties are aspirational only. Their potential as aids to interpretation and as relevant considerations in the exercise of discretions has yet to be fully realised.

With child poverty in New Zealand reaching levels of 27% it is tempting to speculate that ratification has not been effective in realising children’s right to an adequate standard of living. Without economic rights most other rights of children cannot be realised. The sole focus of consecutive governments since ratification has been on parental work as the means to alleviate child poverty. There have been positive initiatives such as the poverty alleviation aim of the Working for Families package, though the initiatives effectively exclude the poorest children by focusing on supporting working parents. The Commissioner for Children has developed a child poverty monitor, enabling progress to be tracked and recently established an expert advisory group on child poverty which recently made 78 recommendations to government. However to date less than a third have been developed as policy initiatives by government. A new and urgent approach is needed in this area. The damage caused by child poverty both on present and future generations and society as a whole is not properly appreciated in national dialogue.

Until there is an effective CRC co-ordinating body and National Plan of Action for Children, the realisation of children’s rights will continue to be ad hoc. The legislature could play a greater role if there were a human rights select committee which had as part of its role the review the Concluding Observations and the ongoing implementation of CRC. Raising awareness and understanding of Members of Parliament would also raise CRC’s profile and much more could be done to educate the public, the media and professionals working with children about children’s rights and the CRC framework.

Chapter Seven The Convention on the Rights of Persons with Disabilities (CPRD)

The Convention on the Rights of Persons with Disabilities (CRPD) is the most modern of the international human rights treaties and the first of the 21st century. It was adopted by the UN General Assembly on 13 December 2006, and is unique in a number of ways. It introduces a “disability narrative into the human rights framework”367and provides an “unprecedented opportunity for the United Nations to engage in activities that promote the rights and dignity of persons with disabilities”.368It marks a turning point for the enjoyment of human rights of persons with disabilities369 following decades of neglect and marginalisation within the human rights agenda, and is based on the social model of disability rather than on individual and personalised pathology.370 It is also notable for the unprecedented level of civil society participation and advocacy involved in the drive for a separate treaty. The development of the Convention was described as “ground-breaking advocacy”371in the spirit of the international disability slogan of “nothing about us without us”. New Zealand signed the CRPD on 30 March 2007.

New Zealand played a significant role in the evolution of the Convention, particularly through the involvement of representatives of disabled peoples’ organisations (DPOs) and Ambassador Don MacKay, Permanent Representative of New Zealand to the United Nations in Geneva, who served as Chair of the Ad Hoc Committee on the Rights of Persons with Disabilities during its final two years and the last session of the negotiations.

The United Nations has characterised people with disabilities as the world’s largest minority. It is estimated that more than 10 per cent of the world’s population, or 650 million people, live with a disability.

The Convention describes the rights of people with disabilities under international law and sets out a code of implementation for governments,372 similar to other human rights treaties. One commentator describes the CRPD as clarifying the position of people with disabilities in international law.373 However, another scholar questions whether the Convention is merely making it clear that existing human rights should, and do, apply to people with disabilities, or whether it creates new rights that are specific to people with disabilities.374 He suggests that the Convention

367 Janet Lord, (2013) “Screened out of existence: the Convention on the Rights of Persons with Disabilities and Selective Screening Practices” International Journal of Disability, Community and Rehabilitation, 12(2), http://www.ijdcr.ca/Vol 12-02/articles/lord.shtml

368 Sha Zukang, (2007) “Promoting the Convention on the Rights of Persons with Disabilities: The Role of DESA”.

369 Louise Arbour, (2007) “The Role of the OHCHR in Promoting the UN Convention on the Rights of Persons with Disabilities”. International Rehabilitation Review , 56(1), 12

370 Paula Pinto, (2011). “Monitoring Human Rights: A Holistic Approach” in Marcia Rioux, Lee Ann Basser and

Melinda Jones (eds.) Critical Perspectives on Human Rights and Disability Law. Leiden, Martinus Nijhoff Publishers at 451- 477.

371 Maria Reina and Stefan Tromel, S. (2007) “A Unified Disability Community: the Key to Effective Implementation of the Convention”. International Rehabilitation Review, 56(1), 9

372 Don MacKay, (2007) “The Convention on the Rights of Persons with Disabilities: A Benchmark for Action”.

373 Melinda Jones, (2011). “Inclusion, social inclusion and participation.” in Rioux, M. et al (eds.) above at pp 57-82. 374 Frederic Megret, F. (2008) “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” Human Rights Quarterly, 30(2), 494-516

does a number of things such as affirming the applicability of existing human rights; reformulating existing human rights; extending a number of existing rights; and it “also comes very close to creating new rights....specific to persons with disabilities.”375Other commentators suggest that the Convention does not “intentionally create new rights”376 while Byrnes argues that because it is a comprehensive and integral treaty the CRPD does in fact create new hybrid rights.377

The CRPD is wide-ranging covering accessibility, awareness-raising to combat stereotypes, living independently, personal mobility, habilitation and rehabilitation, statistics and data collection as well as health, employment and education and articles for children with disabilities and women with disabilities. The right to life is a separate article.

Accessibility, inclusiveness and changing societal attitudes are recurring themes and the Convention reflects a shift in thinking from viewing disability in terms of social welfare to a human rights paradigm. As a signatory of the Convention, New Zealand has committed itself to “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise”.378 A former chair of the UN Committee on the Rights of Persons with Disabilities, Ron McCallum, notes that it is equally important to appreciate that people with disabilities can also rely on the human rights provisions contained in other UN treaties as well as in many other supra-national covenants, charters and treaties.379

The CRPD differs from other human rights treaties in a number of ways. First, there is a difference in detail, with 30 substantive articles, many far more explicit than corresponding articles in other population-based treaties. For example, Article 27-Work and Employment - has 11 sub clauses. Second, the enlarged scope is coupled with a more detailed articulation within the convention articles themselves, what one scholar calls “substantial extra semantic texture to certain rights”380 and reflects a maturing of definitions of contentious human rights concepts such as “reasonable accommodation”. This could have implications for future treaty-based jurisprudence. For example, Article Two defines “reasonable accommodation” as both a positive and negative duty with its denial constituting discrimination.

Third, it introduces a new range of monitoring mechanisms, including national implementation and monitoring by State parties through the establishment of a framework of an independent mechanisms with a specific role for civil society (Article 33).

A fourth element that distinguishes the CRPD, is the depth of the involvement of disabled people, the affected population group, in its drafting. On 30 November 2001, the Mexican President made a speech to the United Nations General Assembly introducing the idea of a new convention. He said: “It would be impossible to make this world more just if we allow the exclusion of the most vulnerable groups.” This prompted the OHCHR to review international human rights treaties, standards and

377 Andrew Byrnes, (2008). Monitoring the fulfilment of CRPD Rights in Australia: Issues and challenges. Transcript from the Queensland Advocacy Inc. Human Rights Seminar 20 August 2008. Online http//www.qai.or.au/content/online- library-documentscfm?ID=69.

mechanisms in relation to disability. The resulting Quinn-Degener report recommended strengthening current mechanisms and developing a separate convention.381

The international consensus that the existing human rights system had neither promoted nor protected the rights of people with disabilities was reflected in the United Nations High Commissioner for Human Rights, Louise Arbour’s comment to the UN committee negotiating the new Convention in 2006: 382

There is also no doubt that the existing standards and mechanisms have in fact, failed to provide adequate protection in the specific case of persons with disabilities. It is clearly time for the United Nations to remedy this shortcoming.

While world leaders by 2005 recognised the need to finalise a convention, DPOs and others were frustrated by both the pace of progress of realisation of civil, political, economic, social and cultural rights for people with disabilities and the failure of governments to apply existing instruments in any specific or targeted way to implement them practically for people with disabilities. This frustration, coupled with the opportunity provided by the development of a new convention in and of itself, generated new forms of disability advocacy at international and national levels which led to an “unprecedented involvement of DPOs in crafting the CRPD”.383The International Disability Caucus (IDC) which represented people with disabilities on the Ad Hoc Committee drafting the new treaty coordinated about 80 global, regional and national DPOs and related NGOs from across regions including different disability groups.384

Legitimised by its broad constituency, DPO leadership and consensual agenda, IDC’s advocacy included a broad range of tactics, from developing an alternative Draft Convention to making a unified intervention on each issue during the plenary sessions.

The level of involvement of DPOs meant that the final text of the Convention represented real life experiences of people with disabilities and led to a new level of civil society politicisation about expectations for the Convention’s implementation.

New Zealand signed the CRPD on 30 March 2007 but ratification of the Optional Protocol is “under consideration”.385The Government has told the UN that it expects to provide an update on New Zealand’s implementation of the Optional Protocol in 2015.386

By the late 1990s there was a growing momentum in New Zealand to progress disability rights. In 1999 a Minister for Disability Issues was created and in 2002 a mechanism - the Office for Disability Issues (ODI) within the Ministry of Social Development - was established as part of the fifth Labour Government’s social policy framework. In 2000 a new Public Health and Disability Act foreshadowed the development of the New Zealand Disability Strategy: Making a World of Difference:

381 Gerard Quinn & Theresia Degener, (2002). Human Rights and Disability. New York and Geneva, United Nations.

385 New Zealand Ministry of Foreign Affairs and Trade (2008) New Zealand Handbook on International Human Rights.

Whakanui Oranga. The strategy was regarded internationally as socially progressive both in its content and in the process of its development. A Strategy Reference Group, co-chaired by the Director of ODI and Robyn Hunt, a disabled person who later became a Human Rights Commissioner, took the draft to the disability sector for consultation. A central theme of the strategy was the idea of New Zealand as fully inclusive society. The leadership role taken by representatives of disabled people in the development of the strategy and the expertise and experience gained as a result, transferred into the development of CRPD.

The role of civil society in the development of the CRPD, particularly by DPO representatives, is significant in New Zealand’s human rights history. It is, however, a story that has not yet received appropriate public or political recognition. The UN had established an Ad Hoc Committee in December 2001 which first met in 2002 and reaffirmed the need for a new treaty. In May 2003 Cabinet agreed that New Zealand take an active role in the development of the CRPD. A Cabinet paper at the time of the Committee’s second meeting in June said that:387

The inclusion of non-official representatives contributed breadth and special knowledge to the delegation. This breadth of expertise ensured that New Zealand played an influential role. The New Zealand delegation delivered six statements outlining ideas for the content of a convention based on experience with the New Zealand Disability Strategy and advocating for an approach that draws upon the mandatory authority of the human rights covenants. We recommended expanding on the provisions in these existing covenants with explicit recognition of what they mean for disabled people and it was acknowledged that this would inevitably require social development and affirmative action.

The Cabinet paper also outlined New Zealand’s contribution to a process for developing CRPD which promoted the full and active participation of disabled people in partnership with State parties. The European Union had put forward a proposal to establish an “experts” group to work on the convention text but this was opposed by other States and perceived by civil society as a delaying tactic. New Zealand proposed an alternative inter-sessional arrangement comprising a small group of government representatives and DPOs working in partnership which gained widespread support as the preferred process after intense lobbying.

New Zealand’s official position on the scope of the proposed Convention is intriguing given its approach to implementation post ratification. New Zealand said:388

Many States assert that it is neither necessary nor desirable for the convention to invent new rights or detract from existing rights provided for all people, including disabled people, in existing treaties. Rather, it is proposed the convention should clarify for States the measures required to ensure disabled people are able to experience existing rights and fundamental freedoms. This entails the explicit recognition and understanding of disability in a rights framework rather than the historically more common welfare framework.

The Cabinet paper stated that a comprehensive treaty would go further than a statement of the right to equality and non-discrimination recommended by some States and provided in the New Zealand Human Rights Act 1993. It involved consideration of the social, cultural, economic, civil

387 Ruth Dyson, (2003) Cabinet Social Development Committee. Negotiations on a Convention on the Rights of Disabled People.

and political conditions necessary to ensure the full and diverse population of disabled people were able to exercise their universal human rights.

The Minister for Disability Issues, Hon Ruth Dyson, then sought Cabinet consideration for the support for DPOs in the convention development and asked for a transparent funding pool to resource the activity in 2003. This meant that disabled people were able to be part of negotiating teams outside of government influence in the CRPD process. Gary Williams, Chief Executive of the Disabled Persons Assembly, and Robyn Hunt were actively involved in this process. New Zealander Robert Martin, who was Vice-President of Inclusion International, a self-advocacy group, also spoke at the United Nations during the development of the CRPD.

Reporting on ongoing engagement in the CRPD development, the Minister of Foreign Affairs and Trade, Phil Goff, and the Minister for Disability Issues, Ruth Dyson, said that New Zealand was able to support the main thrust of the draft Convention under negotiation although there were a few issues that were inconsistent with existing legislation or required clarification. These related to forced interventions, the rights of disabled people illegally in New Zealand and remedies for breaches of rights.389

New Zealand was one of 27 States represented on the Working Group, which included 12 international non-governmental organisations representing disabled people and one representative of national human rights institutions. The group met in January 2004 and was chaired by the New Zealand Permanent Representative to the UN in New York. The Ministers observed that “New Zealand efforts and its views on the scope and substance of the Convention have been highly regarded.”390The broad approach to the negotiations had been to promote partnerships between the government and non- governmental organisations in national and international negotiations and promote outcomes consistent with the New Zealand Disability Strategy, domestic legislation and international human rights instruments.

There were eight meetings of the Ad Hoc Committee between 2002 and 2006. The United Nations General Assembly adopted the Convention by consensus on 13 December 2006.

The Cabinet paper authorising New Zealand’s signing of the CRPD urged the attendance of a high level delegation when the Convention first opened for signing on 30 March 2007 as a “continuation of our leadership role” and to send a strong signal to other States.391 It was claimed that “New Zealand modelled participation by disabled people by including in every delegation to the United Nations at least two representatives of the disability sector. Funding was provided by government for disability sector representatives to attend meetings in New York.”392

In 2007 New Zealand won the prestigious Franklin Delano Roosevelt International Disability Award which the Minister for Disability Issues, Ruth Dyson, said acknowledged both the New Zealand Disability Strategy and “in shaping and negotiating the intent of the UNCRPD over a

389 Phil Goff and Ruth Dyson, (2004) Cabinet Social Development Committee. Progress in Negotiating a Disability Rights Convention. (CAB Min (04) 40/5).

391 Ruth Dyson and Winston Peters, (2007) Cabinet Social Development Committee. Signature of the Convention on the Rights for persons with Disabilities.

number of years”.393 Civil society representatives also saw the award as a result of their efforts and role in developing the Convention.394 The Disabled Persons Assembly NZ said that “we were recognised internationally for this work (influential in creation of CRPD) in 2007 by jointly winning the Franklin Roosevelt Award.” The DPA was awarded a US $50,000 grant as part of the award given to an outstanding non-governmental disability organisation selected by the winning country. DPA’s application, one of 24, was supported by People First and CCS Disability Action.395

Given its reluctance to enter reservations, New Zealand aims to ensure that its domestic legislation is compliant before ratification.396 After signing the CRPD the Government carried out a National Interest Analysis (‘NIA’). The NIA found that it was not necessary to introduce specific legislation but there were 19 statutes where there was a presumption of incapacity in certain situations, six where disability prevented the appointment to statutory boards, and 10 with provisions which used inappropriate language.397The changes were considered “minor and technical” and able to be effected through an omnibus Bill that principally involved removing statutory references to an individual’s status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.398

Subsequent to ratification, substitute decision making – and in particular capacity and the implications of the Protection of Personal and Property Rights Act 1988 (PPPR Act) - has emerged as a significant issue in Convention compliance. While there was no specific reference to the PPPR Act in the NIA, one of the Cabinet papers prepared by the Office for Disability Issues and the Ministry of Foreign Affairs and Trade during the negotiation of the Convention noted that substitute decision-making did not prohibit the use of personal representatives under the PPPR Act.399 However, as the PPPR Act was not listed in the NIA as a law that was potentially inconsistent with the Disability Convention, it invites the inference that the Executive considered that it did not infringe the capacity provisions in Article 12 which should therefore be interpreted in a Convention compliant manner.

The NIA was relatively superficial as there was a push for New Zealand to ratify as soon as possible given its role in promoting the Convention.400 A cabinet paper on the NIA prepared by the ODI in 2008 suggests there was no real attempt to address the more subtle implications of the Convention. Issues such as access to buildings or reasonable accommodation in education were considered to be adequately addressed by existing legislation such as the Building Act 2004 and the Education Act 1989 – despite the fact that there had been, and continue to be, ongoing issues with both.

394 Disabled Persons Assembly NZ. Our achievements. Accessed at http://dpa.org.nz on 1/12/2014.

395 Ruth Dyson (4 April, 2008) “NZ disability group awarded $US 50,000 grant.” New Zealand Government Press Release. Scoop.co.nz. Accessed on 1/12/2014.

396 If there is a provision in a treaty which a State does not agree with or if the State cannot bring its domestic legislation

into line with its international obligations, it may enter a reservation to prevent the provision from applying to it. A reservation cannot be entered if it would undermine the effect of the treaty.

397 Ruth Dyson and Winston Peters (2007) Cabinet External Relations and Defence Committee. Towards ratification of the United Nations Convention on the Rights of Persons with Disabilities at.3 [15][16][17]

398 Office for Disability Issues Convention on the Rights of Persons with Disabilities: National Interest Analysis at [56 et seq] 399 Office for Disability Issues and Ministry of Foreign Affairs and Trade Towards a Disability Rights Convention at [25] 400 Cab paper: Towards ratification of the United Nations Convention on the Rights of Persons with Disabilities September 2007 at [26]

New Zealand passed the Disability (United Nations Convention on the Rights of Persons with Disabilities) Act in 2008 to effect the necessary changes allowing New Zealand to ratify the Convention on 26 September 2008 in time for New Zealand to participate in a Conference of State parties in November of that year.

The ebb and flow of political will that so strongly characterises New Zealand’s commitment to human rights is especially evident in progress for disabled people. Without strong Ministerial leadership from the first Minister for Disability Issues, Hon. Ruth Dyson, and her successor, Hon. Tariana Turia, it is unlikely that New Zealand would have played such a pivotal role in the development of the CRPD. Ministerial backing was required for the funding of representatives of the disability community for travel to New York and Hon Dyson was a formidable champion of disability rights. Once the CRPD had been signed, Hon Turia quickly established the institutional framework for implementing the CRPD and showed that she was both a passionate advocate for change within government departments and equally dismissive of bureaucratic stonewalling.401

The increasing salience of the implementation of human rights for disabled people is demonstrated by the increasing number of New Zealanders who report that they are limited in their daily activities by a range of impairments. The New Zealand Disability Survey from Statistics New Zealand in June 2013 identified 1.1 million people representing 24 per cent of the population as disabled. This was an increase from 20 per cent in 2001 involving 11 per cent of children and 27 per cent of adults.402

Article 33, National implementation and monitoring, is a mechanism that has been described as “unique in an international human rights instrument” that “triangulates between executive efficiency, independent scrutiny and voice.”403 It purports to distinguish between national implementation and monitoring and is intended to link the norms of the CRPD and international treaty law with domestic progress and change for people with disabilities. The Asia Pacific Forum (APF) states that Article 33 was included in the CRPD largely as a result of the contributions of national human rights institutions (NHRIs), together with representatives of people with disabilities and this was a “first” in human rights instruments.404

This is much more specific than the general obligations clauses contained in previous human rights instruments, which require States to use “all appropriate means, including particularly the adoption of legislative measures” (ICESCR) or to “adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant” (ICCPR).

The APF said the recognition of the importance of a national monitoring mechanism in addition to the combination of domestic legislative measures and international monitoring was important:405

401 Personal observation by one of the authors, who was a NZ Human Rights Commissioner with joint responsibility for disability rights when the IMM was established, at the first IMM meeting with the Ministerial Advisory Group.

402 Statistics New Zealand (2014) New Zealand Disability Survey 2013. Retrieved from http://www.stats.govt.nz/~/ media/Statistics/Browse%20for%20stats/DisabilitySurvey/HOTP2013/DisabilitySurvey2013HOTP.pdf

404 Asia Pacific Forum (2007) Annual Conference: Disability Issues Paper, Sydney Australia 24-27 September 2007.

The express incorporation of this insight into a major human rights instrument is both a necessary response to the specific issues raised by disability, and a welcome precedent for the development and implementation of human rights law more generally.

Under Article 33(1) States Parties are expected to designate one or more focal points within government for matters relating to the implementation of the Convention and establish or designate a coordination mechanism within government to facilitate related action in different sectors and at different levels. One of the main problems identified by commentators was the ‘silo effect’ of individual public service departments operating individually and variably. Article 33(1) “locked onto the existing institutional architecture of change by engaging implementation bodies and seeking their co- ordination”.406

Under Article 33(2) States Parties are expected to establish and maintain a framework, including one or more independent mechanisms, to promote, protect and monitor implementation of the Convention “ tak[ing] into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.” The principles are the Paris Principles relating to the Status of National Human Rights Institutions adopted by the United Nations General Assembly in 1993 and which form a framework against which NHRIs such as the NZHRC are accredited.407

The Office of the United Nations High Commissioner for Human Rights produced a thematic study on the structure and role of national mechanisms which identified three key requirements.408 These were the inclusion of independent mechanisms, a framework capable to carrying out the mandate to promote, protect and monitor and the involvement and full participation of civil society in the monitoring process. The study also defined promotion, protection and monitoring. Promotion included a broad range of activities from awareness-raising to a more strategic engagement in the promotion of the implementation of the Convention and included activities such as scrutiny of existing legislation and draft bills to ensure consistency with CRPD and provision of technical advice to public authorities and other agencies in applying the Convention.409 Protection covered a wide range of activities such as the investigation and examination of individual and group complaints, court cases, inquiries and issuing reports.410Monitoring the implementation of CRPD ranged from developing indicators and benchmarks to monitor implementation, estimating progress or regression over time to monitoring human rights violations through the complaints filed by alleged victims of discrimination with NHRIs, other agencies and quasi-judicial or judicial complaints mechanisms.411

Article 33(3) states that, “Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.” Gerard Quinn

408 Human Rights Council, Thirteenth session, Agenda item 2, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General, Thematic study by the Office of the United Nations High Commissioner for Human Rights on the structure and monitoring of the Convention on the Rights of Persons with Disabilities: Summary, A/HRC/13/29, 22 December 2009.

suggests that the majority of treaty monitoring bodies would look with disfavour on States that do not involve civil society in the drafting of their periodic reports. 412

This goes further. It explicitly requires such engagement with respect to national ‘monitoring’ which is quite crucial in keeping a domestic dynamic of reform going. As such it reflects a general requirement with respect to the consultation of persons with disabilities in Article 4 (3).

A paper for the ODI in 2008 provided three options for consideration on how New Zealand could meet the obligations of Article 33413noting that because New Zealand was an early adopter of CRPD there were few precedents for guidance. Two of the options preferred the ODI as the designated focal point within central government to provide leadership and monitoring of the New Zealand Disability Strategy and take responsibility for the New Zealand Government’s reporting obligations under Article 35 of the Convention. Option Two also proposed that ODI take on the coordination role and decide best how to involve people with disabilities and civil society. In Option Three, however, the Ministry of Justice was to be designated as the central government focal point and fulfil the international reporting requirements, while the Ministry of Health would assume leadership and monitoring of the Disabilities Strategy.

Options for implementing Article 33(2) in terms of promoting, protecting and monitoring, ranged from a new Disabilities Commission established as an independent crown entity to a Disabilities Commissioner situated within the NZHRC.

Article 33(3) explicitly refers to the participation of civil society and people with disabilities. DPOs were consulted about the development of options to implement Article 33. The options paper stated:414

It would be hard to overstate the concern that the DPOs have about the knowledge needed, ability and as importantly the willingness of agencies to form an active partnership with DPOs. This concern was raised without exception by all DPOs. This partnership needs to be radically different from the model that has been employed for consultation with civil society in New Zealand until now in regard to the Disability Strategy....... The current monitoring of other UN human rights conventions (e.g. the ICCPR, ICESCR, CRC) is not considered by any DPO as a possible framework for monitoring the Convention.

The Options Paper said the central government agencies canvassed with civil society options within government from the Ministry of Health, the Ministry of Social Development (MSD), the ODI which reports into the MSD, and the Ministry of Justice. Preferences were split. To fulfil Article 33 (2) the DPOs preferred the role was shared between the NZHRC and the Office of the Ombudsmen. An issues paper by the Asia Pacific Forum also contemplated a shared function with NHRIs and others. It said:415

Article 33(2) does not simply contemplate designation of a single mechanism (such as an NHRI) for monitoring, protection and promotion of implementation. Although establishment

413 Petra Butler, (2008). Report on the Implementation Options of Article 33 United Nation Convention on the Rights of Persons with Disabilities.

or designation of a mechanism or mechanisms is called for, this is set within a broader requirement to establish a framework for promotion, protection and monitoring.

Subsequent European scholarship suggests that “NHRIs should not be blindly designated independent mechanisms” and that often it will be advantageous if the role and responsibilities are shared.416

In the end New Zealand opted for a different option with one novel feature. Hon Tariana Turia, the Minister for Disability Issues outlined in a Cabinet paper how New Zealand would meet its obligations under Article 33.417Unsurprisingly, she proposed that the ODI be identified as the government focal point, because it had the “mandate, skills and acceptance among disabled peoples’ organisations to lead a whole-of-government approach to implementing the Convention”.418 However, she suggested that the relatively newly created Ministerial Committee on Disability Issues be designated as the co-ordinating mechanism, because “co-ordination at Ministerial level will demonstrate New Zealand’s continued commitment to taking a leadership role.”

A Ministerial Committee on Disability Issues had been agreed to by Cabinet in February 2009 as part of the Government’s response to the Social Services Select Committee’s report on its inquiry into the quality of care and services provision for people with disabilities. Cabinet had tasked the Committee with determining the priority and timeframes for implementing the Government response and improving effectiveness of government agencies’ implementation of the New Zealand Disability Strategy. Its aim was to improve the leadership, co-ordination and accountability of government as it affected disabled people.419Expanding its mandate would provide a forum where all participants, Government and non-Government, with a Convention role could meet to discuss “progress, priorities, and the linkage with action plans.”420The mandate of the existing public service Chief Executives’ Group on Disability Issues would also be extended offering the “opportunity for a positive and collaborative approach at governance and implementation levels.”421In the Cabinet paper Minister Turia said that the establishment of a committee that can “work with the independent participants offers the potential to develop a fully collaborative framework in keeping with the intent of the Convention”.422

The NZHRC was to have a broad role across all three elements of promotion, protection and monitoring in accordance with its existing functions in the human rights area, under Article 33(2). It was proposed that:423

The Office of the Ombudsmen will have a more confined role in the areas of protection and monitoring, to the extent that these roles can be achieved throughout the Ombudsmen’s existing functions to investigate the administrative conduct of agencies in the State sector.

416 Gauthier de Beco, (2011) “Article 33(2) of the UN Convention on the Rights of Persons with Disabilities: Another Role for National Human Rights Institutions” Netherlands Quarterly of Human Rights. 29 (1) 84-106 at 106.

417 Office for the Minister of Disability Issues (2010) Framework to promote, Protect and Monitor Implementation of the Convention on the Rights of Persons with Disabilities. Cabinet Social Policy Committee.

A group of DPOs that had been involved in the CRPD drafting, signing and ratification process, called the Convention Coalition that had been formed as a governance–level steering group by six major NGOs provided the civil society component of Article 33. The groups were the Disabled Persons Assembly (DPA), the Association of Blind Citizens, People First, Deaf Aotearoa, Ngati Kapo and Nga Hau E Wha (a network of organisations of people with experience of mental illness.) The mental health group, Balance New Zealand, and Deafblind (NZ) Incorporated were added later.

The proposed framework therefore “provide[d] for three independent and equal partners-the Human Rights Commission, the Office of the Ombudsmen and the Convention Coalition-working in full collaboration with government to ensure that the Convention is monitored in a manner that will have the confidence of disabled people and the New Zealand public.”424

The Cabinet minute also identified what the three groups would do. The NZHRC would lead an ongoing programme to identify areas where disabled people are vulnerable to abuse or denial of their rights and it would advocate for solutions and remedies by government agencies or the private sector. It would also develop a “strong, formal and visible domestic role” promoting and protecting the implementation of the Convention and advocating for disability rights.425

The principal focus of the Office of the Ombudsmen would be monitoring the performance of the wider State sector in implementing the Convention “through the own-motion investigation function, making recommendations and publishing reports as appropriate.”426The Office was to be given explicit recognition in its existing mandate to investigate State sector administrative conduct in relation to disabled people.427

The Convention Coalition would lead disabled peoples’ work on monitoring and was “committed to ensuring that the Treaty of Waitangi is upheld and reflected in its activities.”428The importance of sharing its monitoring work with regional and global disability communities was also recognised. The Convention Coalition provided an “ethical mechanism for disabled peoples’ input into the monitoring of disability rights as spelled out in the Convention”.429

The Independent Monitoring Mechanism (IMM) has reported twice since its establishment. The first report covered the five years until June 30, 2012 and the second the period from July 2012-to 31 December 2013.430The first report focussed on developing a baseline profile of the rights of disabled people in New Zealand and contained seven key recommendations. It urged the Ministerial Committee on Disability Issues to ensure that action on the recommendations was completed by the end of 2014. The Minister responded by stating that the hard-hitting conclusions were just what the Government had asked for when it set up the independent organisations to

430 Making disability rights real Whakatuturu ngā tika hauātanga. Summary Report. Second Report of the Independent Monitoring Mechanism of the Convention on the Rights of Persons with Disabilities. Aotearoa, New Zealand. July 2012-December 2013. New Zealand Human Rights Commission, Ombudsman, New Zealand Convention Coalition.

undertake monitoring. Government would be carefully considering “these suggestions” in the coming year as it further developed and implemented the Disability Action Plan.431

The second report returns to many of the themes in the first report with five broad areas requiring particular attention. These were:

Other matters of concern were also identified during the most recent reporting period. They were reliance on substituted decision-making and Article 12 of CRPD, the right to equal recognition before the law; the significant health disparities and life expectancy issues for disabled people particularly those with learning/intellectual disabilities and discrimination against disabled children in relation to out of home care arrangements under certain sections of the Children, Young Persons and their Families Act 1989. The report also urged the Government to repeal the New Zealand Public Health and Disability Amendment Act 2013 that effectively removed any potential domestic legal remedy for unlawful discrimination relating to the Government’s family care policy. Specific key recommendations identified which public service departments and government agencies were responsible for action.432

The IMM asked “that the Government provide the IMM with a progress report, as at the end of 2014, on implementing the recommendations of the IMM’s 2011/12 report.”433 To date there has been no official government response to either of the IMM reports, other than carefully considering the “suggestions” of the first report. Ombudsman Ron Paterson in an interview for this research said:

I think if the Government didn’t respond, then the IMM would be left in the position of having to make the same points again, presumably more loudly, in the next report in another two years.

The absence of an official response suggests that while the IMM is a unique monitoring mechanism, the Government can treat it as a discretionary internal mechanism choosing when and if it wishes to respond. It both funds the monitoring mechanism, appoints and constitutes it, and can equally disregard it if it so wishes. However, it cannot ignore accountability by way of international treaty body reporting in quite the same way as with other treaties without incurring international disapproval. Ombudsman Ron Paterson said:

We’re very good at producing beautiful reports but we have to ask whether that is the most effective way of making change and holding people to account. I think we are identifying the need to better target issues. Our role is monitoring, not implementation, and as a monitor then

431 Newsletter from the Office for Disability Issues (14 December, 2012) “Making Disability Rights Real”. We understand that a response can be expected by April 2015

you need to have some clear stakes in the ground so you can say ‘this is how it was in 2014, and New Zealand has to do a better job.

It is too early to judge the effectiveness of the IMM as a process and in terms of outcomes. In addition to the issue of accountability, there is also a sense of “insiders” and “outsiders” within the disability community around the composition of the Convention Coalition of DPOs. This is recognised by the Disability Commissioner, Paul Gibson, while acknowledging the value of the CRPD reporting process as a whole. “There has been tension between DPOs and other organisations involving disabled people at the other ends of the community that are not in the inner circle.” While there was still some way to go, the CRPD provides an opportunity to build consensus in the community, as well as a framework for the government response and action on disability issues, he said. Convention Coalition chair, Mary Schnackenberg said ideally the coalition needs more Pacific involvement, additional Māori representation, youth participation and representation of wheelchair users.

As the IMM and CRPD reporting matures it may be necessary for the UN to develop guidelines and advice around Article 33 and specifically, the monitoring role. What does “monitoring” mean and against what indicators and benchmarks should State parties be measured?

New Zealand submitted its initial report on 31 March 2011.434 In its overview New Zealand noted the shift in policy over several decades from exclusion and care outside of mainstream society to an inclusive social model of disability with monitoring as the default option and supplementary support services for disabled people as required.435 The Disability Strategy had advanced this vision and the principles reflected in the strategy aligned with those in the Convention. New Zealand also claimed the existing statutory framework was “sound and comprehensive” citing the NZBORA and the HRA in addition to other specific legislation.436 The report emphasised Government’s engagement with disabled people as members of the New Zealand delegation for the CRPD negotiations, and a standing disability sector reference group comprised of more than 70 disabled people, family members, advocates and providers.437

The report also noted continuing challenges with disabled people who were disadvantaged and experiencing poorer outcomes in health, education and employment and that these challenges were often greater for women, Māori and Pacific people. Other barriers included social discrimination and attitudinal barriers, as well as physical and environmental barriers which were exacerbated in rural areas. The limited range of data available about disabled people and the need for increased cultural sensitivity and different cultural frameworks were also identified.

During its consideration of New Zealand’s report Committee members’ questions covered a wide range of issues relating to violence, education, the provisions and limits of reasonable accommodation, digital hate speech and how the Canterbury earthquakes and rebuilding was impacting on people with disabilities. Ombudsman Ron Paterson said that the process of the constructive dialogue seemed quite unfocussed with every committee member:

434 Committee on the Rights of Persons with Disabilities (2013) Implementation of the Convention on the Rights of Persons with Disabilities. Initial reports submitted by States parties under article 35 of the Convention. New Zealand (31 March 2011). CRPD/C/NZ/1.

...keen to be pulling their weight so their questions were all over the map. There would be five rapid fire questions from one committee member and then you’d switch to another committee member.

Groups of Articles were taken at one time. Many of the replies given were very general although the Committee specifically asked whether the Government was going to repeal the Public Health and Disability Amendment Act with New Zealand indicating it did not intend to repeal the controversial legislation.

Paul Gibson, the Disability Rights Commissioner of the NZHRC, who attended the country examination said that because of New Zealand’s history of involvement with the CRPD development, there was a “huge level of expectation from the committee.”438

Observers said the committee was more engaged with New Zealand than what it usually is with most countries. But it also might have been that we were the first country up during a two or three week session, so there was more energy at the start. But because of what we did during the development of the convention, there was greater engagement, greater expectation.

As a Human Rights Commissioner he was invited to be part of the Government’s presentation and part of the delegation, but also able to act independently. He believes that if he had a longer opportunity to speak he could have been of more value to the Committee. He said there was a range of different responses across government departments reflecting a range of knowledge and expertise of disability issues.

Mr Gibson said he would characterise much of the government’s engagement as authentic and genuine but that there was some “spin and omissions” partly because of lack of expertise. As a result, the Concluding Observations were kinder to the government on certain issues but also harder in several areas because the government representatives did not know of some of the work which was being undertaken domestically which could have led to a more positive response to specific questions. Occasionally some of the New Zealand rhetoric grated on the CRPD committee, he said. One member asked a question about the numbers of young disabled people in aged care facilities. The response was that while until a few years ago there were approximately 600 in aged care facilities, now only approximately were. While the New Zealand representatives had a sense of achievement in the reduced number, there was a rumble around the room that a more desirable outcome would be for younger disabled people to be able to choose where to live, rather than being “put” somewhere.

The composition of the government delegation, given New Zealand’s history of supporting active involvement from disabled people, was also of interest to the committee. He said there was an expectation of lived experience within government delegations these days.

Country rapporteur, Ronald McCallum, in his concluding remarks said that New Zealand had a good record in implementing the Convention. He said the dialogue was part of an international process long term and that while Government had expectations, so, too, did disability organisations.

438 Interview for this research with Paul Gibson, Disability Rights Commissioner of the New Zealand Human Rights Commission.

In its Concluding Observations on New Zealand’s initial report the Committee welcomed the Disability Strategy and the accompanying Action Plan 2014-2018, sign language developments, media and cinema captioning and increased entry into universities and other tertiary institutions. Improvements in voting arrangements were noted and New Zealand was commended for establishing an IMM to fulfil the requirements of Article 33.

The Committee did, however, recommend that New Zealand ratify the Optional Protocol as soon as possible, reconsider its decision not to repeal the Public Health and Disability Act 2013 and consider amending the Human Rights Act 1993 to include a definition of reasonable accommodation that conformed with Article 2 of CRPD.

In relation to accessibility (Article 9) the Committee recommended that New Zealand enact measures to ensure that all public buildings, as well as public web pages, were made accessible to people with disabilities and that consideration be given to making all new future private houses fully accessible. The Committee also recommended that the exemption for factories and industrial premises employing less than five people be discontinued.

The Committee urged New Zealand to send the Concluding Observations ‘for consideration and action” to MPs, the Government, relevant ministries, local authorities, and members of relevant

professional groups such as education, medical and legal professionals, as well as the media, “using modern social communication strategies.”439

Disabled women were also a focus of the Concluding Observations of the Committee on the Elimination of All Forms of Discrimination against Women following New Zealand’s seventh periodic report. The Committee recommended to the State party that within two years it provide written information on steps taken to implement two specific recommendations including data and information on disabled women.440

A prominent women’s NGO that has consistently been involved in treaty body reporting, Pacific Women’s Watch (New Zealand) provided information to the UN Committee highlighting a number of concerns for disabled women including the lack of coverage in domestic violence legislation for all disabled women, the limited funding for prevention of violence against disabled women, health care discrimination, difficulties in access to education, complexities of the welfare system and forced sterilisation of disabled girls without consent.441 Two other issues raised by the NGO were New Zealand’s slow response to urgings to sign the Optional Protocol and the fact that a single Commissioner was responsible for Health and Disability with no separation despite distinctly different scenarios.442

Although a number of the UN Committee’s recommendations involve concepts such as reasonable accommodation, capacity and involuntary treatment that are fundamental to the Convention there is no uniform agreement on their correct interpretation. It remains an issue whether the Committee’s recommendations reflect a realistic understanding of the situation domestically in light of some of the Concluding Observations, particularly in relation to capacity where New Zealand has ground breaking legislation in the form of the PPPR Act since it was introduced in the 1980s.

Reasonable accommodation is central to the Convention as Article 2 defines disability discrimination as including denial of reasonable accommodation. It is described further as:

...necessary and appropriate modifications not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

The Convention clearly anticipates that people with disabilities will be accommodated so that they can enjoy the same rights as others, requiring States to take appropriate steps to ensure that this occurs. However, it is silent on how this will be achieved in practice.

Before ratifying the Convention some changes were made to Part 2 of the HRA involving reasonable accommodation but they did not include a general obligation to accommodate. The

440 Committee on the Elimination of All Forms of Discrimination against Women (2012) Concluding Observations of the Committee on the Elimination of Discrimination against Women. New Zealand CEDAW/C/NZ/CO/7

441 Pacific Women’s Watch (New Zealand) (2014) Non-Governmental Organisation Alternative Interim Report, Status of Women, Comments to the UN CEDAW Monitoring Committee on progress by the New Zealand Government with respect to their implementation of CEDAW recommendations 36 and 38, July 2012.

HRA creates a defence (with a comparatively low threshold). This is significant given the inclusion of reasonable accommodation in the definition of disability discrimination. For example, there is an ongoing issue about access to education for disabled children. This was recognised before ratification but changes were not made to all the relevant sections in the HRA and the legislation still only allows for educational facilities to refuse admission to students with disabilities if it is not reasonable for the school to provide them, rather than imposing a positive obligation to accommodate students with disabilities.

The difficulty is when a person will be considered to have been accommodated and the implications of adopting such a low threshold. A good example is the case of Smith v Air New Zealand Ltd.443 Ms Smith had a condition which meant she required extra oxygen when she flew. She had to organise and pay for her own oxygen on domestic flights and for extra oxygen on international flights. The Tribunal found that Air New Zealand had treated her less favourably by reason of her disability but there was no breach of the HRA because the airline could not reasonably be expected to provide the service without requiring more onerous terms. The case eventually reached the Court of Appeal which found that there was discrimination but the standard to accommodate was one of reasonableness not undue hardship. Although recognising the importance of the Convention, the Court noted that there were dangers in placing too much reliance on it commenting at para

...no matter how important a particular accommodation may be for a disabled person or disabled persons generally, failure to provide it is not a breach of the Act per se. Rather [it] has the effect that a discriminator does not necessarily escape a finding of discrimination by asserting that the actual circumstances involved apply equally to those with and without disabilities. No doubt as a practical matter, the discriminator may have to take steps to provide the accommodation to escape a finding of discrimination. But that is different from asserting the Act imposes an obligation to provide accommodation for the disabled.

Given such an approach, it was probably predictable that the Committee recommended consideration be given to amending the HRA to include a definition of reasonable accommodation that better complied with the Convention. It also recommended that guidelines were developed on the application of reasonable accommodation – a matter that the Ministry of Justice has been working on for some time.

Article 12 - the right to equal recognition before the law - requires States parties to reaffirm that people with disabilities have the right to recognition as persons before the law in the same way as everyone else, that they enjoy the same legal capacity, and to commit to providing the support they may require to exercise their legal capacity. It is considered one of the most important articles of the Convention because without it many of the other rights - such as the guarantee of free and informed consent,444 the right to marry445and the right to political participation446- are effectively rendered meaningless. The problem is how capacity should be interpreted and applied in practice and where to draw the line when some form of substitute decision-making is required.

444 United Nations Convention on the Rights of Persons with Disabilities GA RES/61/106 LXI A/RES/61/106 (2006), art 25

More often than not it is simply asserted that Article 12 encapsulates the concept of supported decision- making without further elaboration. While it is clear that a paradigm shift in how capacity and decision–making have been viewed historically is now necessary in light of the Convention, this is complicated by the lack of agreement on how capacity should be interpreted. The Committee issued a draft General Comment on Article 12 in 2014.447One of the incentives for developing the Comment was that the initial reports of different State parties reviewed by the Committee at that point reflected a general misunderstanding of the scope of the obligations under Article 12 - including failing to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one based on supported decision-making.448

The Comment distinguishes between mental and legal capacity, adopting an interpretation that is consistent with the approach of other UN bodies such as the CEDAW committee - namely, the ability to hold rights and duties and to exercise them. It describes mental capacity as differing from person to person depending on a variety of factors some of which may be environmental and social449and explicitly states that mental and legal capacity should not be conflated. Absence or impaired decision making is not a reason for denying a person their right to exercise legal capacity. Article 12 states that:

Legal capacity is an inherent right accorded to all people including people with disabilities. As noted, it consists of two strands. The first is the legal standing to have rights, to be recognised as a person before the law. ..The second is the legal agency to act on those rights, and to have those actions recognised by the law. It is this component that is frequently denied or diminished for persons with disabilities ... legal capacity means that all people, including persons with disabilities, have legal standing and legal agency simply by virtue of being human. Therefore, both these strands of legal capacity must be recognised for the right to legal capacity for persons with disabilities to be fulfilled; they cannot be separated.

Article 12 requires support be provided to exercise that capacity (if necessary).450States must both refrain from taking measures that have the effect of denying people legal capacity while ensuring that they have the necessary support to make decisions which involve exercising that capacity. The Comment is equivocal about the type of support that should be made available, noting that it may vary from person to person. It also suggests that substitute decision-making regimes, and mechanisms that deny legal capacity and discriminate in purpose or effect against persons with disabilities, should be abolished.451

However, there will be some people for whom supported decision-making is simply not an option and no amount of support will allow them to make or communicate a decision. In such cases some form of substitute decision-making is almost inevitable. This was recognised by the Working Group on the Convention by the inclusion of safeguards in Article 12 to prevent the misuse of supported decision–making. Explicit mention of substitute decision-making was considered unnecessary because the requirements for the provision of support proportionate to the person’s needs would encompass the whole range of support from highest to lowest.452There will always be

447General Comment No.1 (2014) Article 12 – Equal Recognition before the Law, adopted by the UN Committee on14/4/2014 (CRPD/C /GC/1)

a need for some measure of protection for particularly vulnerable people who might otherwise be exploited in various ways.

One of the Committee’s recommendations following the second report by the IMM was that New Zealand should take immediate action to revise laws that involved substitute decision-making by introducing a range of measures which respected a person’s autonomy, will and preferences and conformed fully with Article 12.

The most relevant legislation in this context is the Protection of Personal and Property Rights Act 1988 (PPPR Act) which provides for guardianship of adult people. It is based on an assumption of capacity and the extent to which it dictates a person’s ability to make decisions about their welfare and property. The Act has been touted since its inception as legislation designed to ensure that a person who is subject to the Act has the same legal rights and capacities as any other person453but while much of the PPPR Act is consistent with the obligations under the Convention, it includes broad discretionary powers which allow the Family Court to grant Welfare Guardianship orders and make decisions on behalf a person with some sort of disability. Such powers have the potential to be applied inconsistently with the Convention if the Courts do not properly engage with the obligations and discretions conferred in interpreting the Act and it may have been this that the Committee picked up on when it made its concluding observations.

The Committee’s comments appear to indicate a lack of understanding of the aim and purpose of the Act since the legislation itself cannot be faulted. It is the way it is applied – both by the judiciary and those who are conferred with statutory powers – that has some way to go. In this context the recommendation by the IMM – that further research be undertaken by the ODI to determine whether the provisions in the PPPR Act relating to substitute decision-making are understood and applied, is timely.

The issue of capacity is also integral to the question of involuntary treatment and when – and under what circumstances – some sort of substitute decision-making is permissible. The issue is most often raised in relation to mental disorder, particularly the application of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (‘MH (CAT) Act’).

One of the Committee’s Concluding Observations related to the lack of human rights principles in the MH (CAT) Act, and recommended that the Act be amended to comply with the Convention. It also called on New Zealand take the necessary measures to ensure that no one was detained against their will in any medical facility on the basis of actual or perceived disability and that mental health services were provided with the free and informed consent of the person in accordance with the Convention.

The Convention does not specifically refer to involuntary treatment. It needs to be read in through other articles including Article 14 which protects the right to liberty of the person; Article 17 which states that every person with disabilities has the right to respect for his or her physical and mental integrity on an equal basis with others; Article 25(d) which provides that health professionals must provide the same quality of care as to others, including on the basis of free and informed consent; and Article 12 itself.

As with the PPPR Act it is a moot point whether the MH (CAT) Act is inconsistent with the Convention. The MH (CAT) Act sets out the circumstances in which, and the conditions under which, people may be subjected to compulsory psychiatric treatment. It also sets out the rights of those people. When an analysis of the Act was commissioned before ratification to identify any inconsistencies with the Convention,454the reviewer concluded that most provisions of the MH(CAT)Act were not inconsistent with the Convention although the concept of release from compulsory status - as interpreted by the Court of Appeal in Waitemata Health v Attorney-General 455- raised concerns that the Act could be used to sanction arbitrary detention (contrary to Article 14) and there was an argument that certain provisions in Part 5 (relating to compulsory treatment which required a patient to accept treatment directed by the Responsible Clinician) amount to unjustified limits on the right to healthcare on the basis of free and informed consent (art.25). He also found that there was reason to be concerned about the frequency of independent reviews of a patient’s continued compulsory status, particularly if the patient was subject to detention, although this fell short of amounting to arbitrary detention as envisaged in Article 14 of the Convention.

The analysis was based on a conventional interpretation of the law and mental disorder but there is a growing body of opinion which considers that mental health legislation by its very nature is discriminatory and separate mental health legislation is outdated and inappropriate.456 To be more consistent with the Convention some type of capacity based law that is “de-linked” from disability and which only allowed coercive psychiatric treatment to be administered to patients who genuinely lacked decision-making capacity, was warranted. This does not mean that involuntary treatment is not permissible but rather that criteria which allow it must be non-discriminatory and “disability- neutral”. When one aspect of the necessary criteria for involuntary treatment is the presence of mental illness or mental disorder (itself a form of disability), unacceptable discrimination is introduced.457 On this reading, the New Zealand legislation could be said to be non-Convention compliant. However, it could also be argued that the Committee’s apparent acceptance of the legislation with certain changes means that some form of separate mental health law is permissible.

The Government has consistently argued that New Zealand law only provides for compulsory assessment and treatment in exceptional circumstances where a person presents a high level of risk; is subject to judicial authorisation and continuing scrutiny; provides for independent representation and rights of review and complaint for the person concerned as well as court-ordered assessment and treatment and does not negate the need for clinicians to obtain informed consent if possible at each stage of assessment and for all treatment. If this is correct then there is unlikely to be a significant review of the MH (CAT) Act within the next few years despite the Committee’s recommendations.

Despite issues such as the lack of an obligation to accommodate, agreement on what is meant by capacity and problems relating to compulsory treatment, there has been little positive legislative change as a result of the Convention. This cannot be explained simply by the comparative newness

454 Andrew Butler, A Report for Mental Health Commission on consistency of the Mental Health Act and the CRPD

456 See, for example, George Szmukler, Rowena Daw & Felicity Callard, “Mental Health Law and the UN Convention on the rights of persons with disabilities” Int. J Law Psychiatry, May 2014; 37(3): 245; Bernadette McSherry (ed) Rethinking Rights-Based Mental Health Laws (2010)

of the Treaty itself since there have already been two significant legislative moves that are seen as regressive by the disability community.

The first relates to the statutory recognition of a fulltime disability commissioner and the proposed Human Rights Amendment Bill which had a second reading but failed to make the cut for legislative passage before the 2014 general election. Civil society groups have expressed concerns that the proposed legislation enjoys neither cross party support nor civil society endorsement and appears to have been largely driven by officials.458 Ironically the Amendment Bill’s general policy statement of the Explanatory Note states that the purpose of the Bill is to enable the establishment of the position of a full-time Disability Rights Commissioner, although the proposed legislation does not do this. There is nothing in the amendment that creates a Disability Rights Commissioner, similar to jurisdictions such as Australia and as intended by the spirit of New Zealand’s ratification of the CRPD. Instead section 6(1)(A) of the proposed amendment bill simply states that:

There must be a Commissioner, other than the Chief Commissioner, appointed to lead the work of the Commission in each of the following priority areas: (a) disability rights ...

Perhaps more concerning is the amendment to the Public Health and Disability Act (PDH Act). In 2012 the Court of Appeal affirmed that the policy of not paying family members to provide the necessary support services to their disabled adult children constituted unjustifiable discrimination on the basis of family status. The Government’s response was to push through Part 4A to the PHD Act under urgency, reversing the Court’s decision and preventing complaints of unlawful discrimination being made to the Human Rights Commission on certain grounds including disability and age. The Committee recommended the repeal of the amendment but, as noted above, the Government is resisting the call claiming funding will continue to be provided consistently with Part 4 A.

The PHD Act contravenes the CRPD in two ways. Firstly, the right of disabled persons to be treated equally found in Article 5 since, as the Court found, the policy is inherently discriminatory, and it infringes Article 19, the right to live independently and to the independent choice of living arrangements. Secondly it ousts the jurisdiction of the NZHRC in relation to a group which is considered one of society’s most disadvantaged. This is a significant regression.

The Disability Strategy is designed to provide guidance for government policy and services that impact on people with disabilities. Among other things it aims to improve attitudes towards people with disabilities, remove environmental barriers experienced by people with disabilities (such as making transport, housing and workplaces accessible) and create a disability support system that is focused on the individual. Although the Government has claimed significant levels of activity in implementing policy and practice in certain areas,459 people with disabilities and their families consider that progress is too slow. Four challenges in particular have been identified:

458 CEDAW Coalition of New Zealand NGOs submission to the Justice and Electoral Select Committee on the Human Rights Amendment Bill, 2014.

459 New Zealand Submission to the 2nd Conference of States Parties to the Convention on the Rights of Persons with Disabilities at para [24]

To some extent it is difficult to assess the success of the disability strategy in policy implementation given the absence of one overarching law addressing Convention rights. In the Concluding Observations the Committee commended New Zealand on the Disability Strategy and the more recent Disability Action Plan for 2014-2018 but also criticised discrete aspects of the government’s performance - such as assisting women with disabilities to obtain employment and education and combatting domestic violence – recommending they be strengthened.

Although the CRPD is a relatively recent treaty, it has already figured in a number of decisions - possibly reflecting the increasing recognition and understanding of the treaty body system among practitioners and the relative lack of domestic jurisprudence in the area of disability.

The first case in which there was an attempt to rely on the Convention predated ratification and related to the interpretation of disability. Trevethick v Ministry of Health (No.2)460involved a complaint about the different funding available to people who have an accident and those with degenerative diseases. In order to claim discrimination, the plaintiff had to bring her complaint within the definition of disability in the HRA. To do so the definition had to be construed as including the “cause” of disability. To support her argument the plaintiff referred to the Convention and comment that describes disability as an evolving concept that is no longer premised on a medical model emphasising a person’s medical condition but one that addresses the person’s interaction with their environment. The argument was unsuccessful, the Tribunal (and subsequently the High Court and Court of Appeal) holding that allowing the plaintiff’s argument would involve an interpretation of the HRA that Parliament had not contemplated. The Tribunal did, however, pave the way for future reference on the influence of the international material, when it noted that:461

...the definition of disability in the New Zealand legislation should be interpreted in a broad and purposive way, having regard to the objects of the HRA, and that any interpretation exercise needs to be approached with an eye to the international and domestic context of the legislation.

The facts of Smith v Air New Zealand Ltd have already been outlined in the context of reasonable accommodation. Both the appellant and the Human Rights Commission, which had intervened in the case, cited the Convention as an indication that an appropriate level of accommodation was necessary to meet the requirements of the Convention and relied on the background history to ratification. Although the Court of Appeal considered that the legislative history was consistent with the approach preferred by the Court, it also noted that “there were dangers in drawing too much from this sort of material in the present context”.462

Finally, in Ministry of Health v Atkinson,463 the case relating to the decision not to pay family members caring for their adult disabled children, the Court referred to the Convention as an indication of what was envisaged in the long title to the HRA, linking it to the preamble and the requirement

New Zealand Law Foundation Research Reports

McGregor, Judy; Bell, Sylvia; Wilson Margaret --- "Fault lines: Human rights in New Zealand" [2015] NZLFRRp 2