Home | Databases | WorldLII | Search | Feedback New Zealand Yearbook of International Law

Baird, Natalie --- "International Human Rights Law" [2011] NZYbkIntLaw 11; (2011) 9 New Zealand Yearbook of International Law 287

Last Updated: 15 July 2015

INTERNATIONAL HUMAN RIGHTS LAW



I. Introduction

A significant event in 2011 was the retirement of Rosslyn Noonan as Chief Human Rights Commissioner of the New Zealand Human Rights Commission. While a domestic event at one level, Ms Noonan’s ten years at the helm of the Commission marked a time of increasing involvement of national human rights institutions at the international level. Another significant event was New Zealand’s ratification of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.1 In its engagement with the human rights treaty bodies, New Zealand received the Concluding Observations of the Committee on the Rights of the Child and received the Views of the Human Rights Committee in a communication concerning the fair trial rights of a young person. This note reviews these and other aspects of New Zealand’s state practice in the area of human rights during 2011.

II. Treaty Action

On 20 September, New Zealand ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. This long-anticipated ratification followed the enactment of the Child and Family Protection Bill in August, which contained legislative amendments to the Adoption Act 1955, the Extradition Act 1999, the Mutual Assistance in Criminal Matters Act 1992 and the Summary Proceedings Act 1957, which were necessary to bring New Zealand’s domestic legislation in line with the Protocol.

Also on 20 September, New Zealand became the 26th state to ratify the 2005 Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel.2 The original 1994 Convention criminalises attacks against United Nations’ peacekeeping personnel, and the Protocol expands this to include other United Nations’ workers such as those involved in humanitarian, political and development assistance. New Zealand played a leading role in the negotiations for the original Convention and also in the negotiations for the Optional Protocol.

III. Periodic Reports to Human Rights Treaty Bodies

A. Concluding Observations of the Committee on the Rights of the Child

In January, the Committee on the Rights of the Child examined New Zealand’s third and fourth periodic reports on the implementation of the Convention on the Rights of the Child (CRC).3 The third and fourth periodic report covered the period January 2001 to October 2008.4 A New Zealand delegation of six led by Ms Suzanne Mackwell, the Deputy Chief Executive of the Ministry of Social Development, appeared before the Committee. Three national NGOs submitted shadow reports to the Committee – Action for Children & Youth Aotearoa,5 Peace Movement Aotearoa6 and Save the Children New Zealand.7 The Human Rights Commission had submitted a report to the Committee in September 2010, and Chief Commissioner Rosslyn Noonan attended the Committee presentation. In February, the Committee issued its Concluding Observations.8

The Committee welcomed New Zealand’s ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of Persons with Disabilities, the Convention on the Reduction of Statelessness and the WHO Framework Convention on Tobacco Control.9 The Committee also welcomed the enactment of various pieces of legislation including the Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010, the Care of Children Amendment Act 2008, the Status of Children Amendment Act 2007, the Child Support Amendment Act 2006, the Social Security (Working for Families) Amendment Act 2004, the Care of Children Act 2004 and the Children’s Commissioner Act 2003.10

The Committee highlighted a number of areas of concern. First, the Committee noted its concern that New Zealand’s three reservations to the Convention remained in place.11 The first New Zealand reservation to the CRC is a general reservation, which provides that New Zealand will continue to distinguish as it sees appropriate between persons according to the nature of their authority to be in New Zealand including their entitlement to benefits and other protections. The second reservation is to art 32(2) concerning certain aspects of child labour where New Zealand has reserved the right not to legislate further. The third reservation is to art 37(c) on juvenile detention and provides that a shortage of suitable facilities may require the mixing of juveniles and adults, and that the interests of other juveniles may require the removal of a particular juvenile offender.

In terms of the overall framework for the protection of child rights in New Zealand, the Committee noted that national law had not been harmonised with the Convention and the two Optional Protocols, there was not one single coordinating mechanism for children’s rights, there was no comprehensive national plan of action for children’s rights, and the national budgeting process did not allow clear identification of allocations for children.12 The Committee also urged New Zealand to undertake further awareness-raising about the CRC, and provide training for all professional groups working for and with children.13 Building on the work of John Ruggie, the United Nations (UN) Secretary-General’s Special Representative on Business and Human Rights, the Committee urged New Zealand to further consider the “Respect, Protect, Remedy” Framework in relation to corporate social responsibility, particularly with regard to children’s rights.14

In relation to the general principles of CRC, including non-discrimination and respect for the views of the child, the Committee urged New Zealand to take urgent measures to address disparities in access to services by Maori and other children,15 and take further action to encourage respect for the views of the child.16 In terms of civil rights and freedoms, the Committee welcomed the amendment of s 59 of the Crimes Act 1961 dealing with corporal punishment, and encouraged New Zealand to prioritise the elimination of all forms of violence against children.17 In relation to family environment and alternative care, the Committee recommended New Zealand intensify its efforts to better support families (especially those in crisis) in fulfilling their child- rearing responsibilities.18 It also made a number of specific recommendations in relation to New Zealand’s framework for adoption, namely that the age at which adopted children are able have to access their files be lowered to at least 18, that a child’s consent should be sought for domestic adoptions, and that New Zealand adoption legislation be revised to bring it in line with the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.19 The Committee noted its alarm at the high prevalence of child abuse and neglect in New Zealand, and made some specific recommendations to strengthen New Zealand’s framework for dealing with such cases.20

In terms of health and welfare, recommendations were made concerning disparities in access to health services, breastfeeding, adolescent health and the high number of children (about 20%) living below the poverty line.21 Recommendations on education, leisure and cultural activities included recommendations that New Zealand ensure access to high quality early childhood education, use “exclusion” from school as a means of last resort only, ensure parents are not pressured to make “donations” to schools, and develop and allocate funding for out-of-school care and recreation during the holidays.22

Special protection measures highlighted by the Committee included that children between the ages of 15 and 18 are allowed to work in dangerous workplaces, the lack of data on child victims of sexual exploitation, the need for toll-free, 24-hour access to child helplines, and the low age of criminal responsibility (lowered during the period under review from 14 to 12 years for grave and repeated offences).23

See the Year in Review on Indigenous Rights for further discussion of the Committee’s recommendations in relation to Maori children.24

B. New Zealand’s First Report to the Committee on the Rights of Persons with Disabilities

In March, New Zealand submitted its first report25 to the Committee on the Rights of Persons with Disabilities. The first report is required within two years of ratification, and is used as a baseline for future reports.

C. New Zealand’s Submission of Information on the Implementation of the Concluding Observations of the Human Rights Committee

In April, New Zealand submitted further information to the Human Rights Committee on the implementation of the Concluding Observations of the Human Rights Committee under the ICCPR.26 In its 2010 Concluding Observations, the Committee had explicitly sought further information, within a year, on three of its recommendations concerning over-representation of Maori in prison, terrorism suppression and the police action known as “Operation Eight” and the review of the Foreshore and Seabed Act 2004.27

IV. Jurisprudence of Human Rights Treaty Bodies

In Jessop v New Zealand,28 the Human Rights Committee found that there had been no violation by New Zealand of the International Covenant on Civil and Political Rights (ICCPR). Ms Emelysifa Jessop, who was aged 15 when she was convicted and sentenced to four years imprisonment for aggravated robbery, alleged that myriad aspects of her trial breached the Covenant. She claimed that New Zealand had violated her rights under arts 2(3), 9(1) and (3), 10(2)(b) and (3), 14(1)(2)(3)(a)-(e) and (g), 14 (4), 16, 17, 24 and 26 of the ICCPR.

The Human Rights Committee found that a number of the alleged violations were not admissible. Two of the author’s claims had already been remedied by domestic courts. A number of allegations were not admissible because the victim’s rights had not actually been violated. Others were found to be inadmissible because of failure to sufficiently substantiate the claim or to exhaust domestic remedies. A number of other issues which had been raised by the author in her original submission were also subsequently noted by her to be simply matters of background rather than matters on which a ruling from the Committee under the ICCPR was explicitly sought.

The Committee found three issues to be sufficiently substantiated such that they required consideration of the merits of the claim. First, the Committee considered Ms Jessop’s allegation that certain delays in the resolution of her proceedings violated arts 9(3), 10(2)(b) and 14(3)(c), (4) and (5) of the Covenant. Ms Jessop alleged that the second committal of her case to the High Court resulted in undue delay as, if the case had remained in the Youth Court, it would have proceeded faster. However, the Committee noted that the time from this second committal until sentencing was less than six months, which included two pre-trial applications and a jury trial. Secondly, Ms Jessop alleged that there was a further two-year undue delay from the date of the Court of Appeal’s ex parte decision not to award legal aid for an appeal in March 2000 until the Privy Council decision of 19 March 2002. Ms Jessop was one of twelve criminal appellants who successfully challenged the Court of Appeal’s practice in deciding whether or not to grant legal aid in criminal appeals in Taito v R.29 Following the Taito decision, Ms Jessop alleged further undue delay in the three years it subsequently took for her case in the Court of Appeal to be reheard in October 2005. However, the Committee noted that Ms Jessop’s lawyer accepted responsibility for two-thirds of this delay as he was overseas. The third alleged aspect of undue delay concerned the Supreme Court hearing and a subsequent application to set aside the Supreme Court decision. The Committee found that none of the delays in Ms Jessop’s case amounted to a violation of art 14 of the ICCPR.

The second issue which the Committee considered on the merits was the allegation that because Ms Jessop was unable to cross-examine the victim of the aggravated robbery during her trial because of his ill-health, her rights under art 14(3)(e) had been violated. The Committee noted the importance of the right of accused persons to examine witnesses against them, but found that Ms Jessop was convicted primarily on the basis of her own confession, and importantly, without the victim’s pre-trial statement having been read to the jury. Accordingly, the Committee found that there was no violation of art 14(3)(e).

The third issue considered on the merits was the Supreme Court hearing. Ms Jessop alleged that because there was no oral hearing in the Supreme Court, and the resulting decision was only four paragraphs long, her rights under art 14(1) had been violated. The Committee noted that the disposition of an appeal does not necessarily require an oral hearing, and held that there was no violation of the Covenant.

Overall, despite the numerous allegations, the Committee found that New Zealand did not violate the ICCPR in Ms Jessop’s case.

V. Human Rights Council

A. Suspension of Libya from the Human Rights Council

In February, following Muammar Al-qadhafi’s violent crackdown on anti-government protestors, the Human Rights Council called for the General Assembly to suspend Libya’s membership of the Council.30 In March, New Zealand co-sponsored the General Assembly resolution calling for the suspension of Libya from the Human Rights Council.31 As noted by the New Zealand Permanent Representative to the United Nations, the Libyan situation was “an important moment for the credibility of the United Nations.”32 The moment was successfully seized with the resolution, which was adopted by consensus, resulting in the unprecedented suspension of Libya as a member of the Council. Following the change of regime in Libya, its rights of membership were restored in November 2011.

B. Resolution on Sexual Orientation and Gender Identity

In March, New Zealand was one of 85 countries which supported a joint statement in the Human Rights Council on ending acts of violence and related human rights violations based on sexual orientation and gender identity.33 This statement was followed by the adoption in June of the Human Rights Council’s first resolution on human rights, sexual orientation and gender identity.34 This resolution affirmed that everyone is entitled to the protection of their human rights and freedoms. It also expressed concern at the violence and discrimination committed against individuals around the world because of their sexual orientation and gender identity.

C. The Role of National Human Rights Institutions

Two significant developments at the Human Rights Council this year relate to the role of national human rights institutions (NHRIs). The outcome of the Review of the Human Rights Council provided enhanced participation for “A status” NHRIs in the work of the Council. Subsequently, the first ever resolution on NHRIs was adopted by the Human Rights Council.35 The resolution, presented by Australia, was sponsored by a record 115 member states, including New Zealand.

D. Universal Periodic Review

A major milestone in 2011 was the completion of the first four-year cycle of the Council’s Universal Periodic Review (UPR). New Zealand made statements on the UPRs for a number of countries including Australia, Marshall Islands, Myanmar, Nauru, Nepal, Palau, Papua New Guinea, Samoa, Solomon Islands, Thailand, Timor-Leste, Trinidad and Tobago and Zimbabwe.36

New Zealand itself was reviewed under the UPR process in 2009.37 Midway through 2011, the Ministry of Justice released a “Universal Periodic Review Progress Chart” which lists each recommendation arising from the UPR, the New Zealand response in 2009, and the status of work for those recommendations which were accepted.38

E. Statements by New Zealand Representatives

New Zealand representatives made a number of statements to the Human Rights Council.39 Thematic statements addressed various issues including torture and counter-terrorism, the rights of persons with disabilities, women and violence, and freedom of expression. New Zealand statements on country situations included Libya, Myanmar and the Democratic People’s Republic of Korea.

VI. Activities of the New Zealand Human Rights Commission

The end of an era was reached at the Commission in August 2011 when Chief Commissioner Rosslyn Noonan stepped down after ten years at the helm. The Minister of Justice, Simon Power, thanked Ms Noonan noting that she led the mainstreaming of human rights in the public service and advocated strongly for the inclusion of human rights standards in major legislation. “She strengthened the integrity and reputation of the commission and human rights protections both in New Zealand and internationally.”40

In September, David Rutherford took up the role of Chief Commissioner. A lso in September, Paul Gibson was appointed as a part-time Human R ights Commissioner with particular responsibility for disability issues. Once the Human R ights Amendment Bill 2011 is enacted, it is expected that the position of Disability R ights Commissioner will become a full time one.41

One highlight of the Commission’s work in 2011 was the formal gazetting in October of the Human Rights Commission, the Ombudsman and the Convention Coalition (a grouping of six disabled people’s organisations monitoring the rights of disabled people) as the independent monitoring mechanism under art 33 of the Convention on the Rights of Persons with Disabilities. The Commission made 79 submissions on various issues during the year including to the Welfare Working Group,42 the Social Services Committee’s Inquiry into Boarding Houses in New Zealand43 and the Ministerial Inquiry into Foreign Charter Vessels.44

To advance the body of domestic human rights jurisprudence the Commission intervened in Smith v Air New Zealand Ltd.45 Smith involved a decision relating to disability discrimination, reasonable accommodation and the implications of New Zealand’s ratification of the UN Convention on the Rights of Persons with Disabilities. The Court of Appeal agreed with the Commission’s position that disability discrimination in the Human Rights Act has to be interpreted to comply with the Convention, which includes a positive obligation to accommodate people with disabilities.

Natalie Baird*
University of Canterbury

1 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (opened for signature 25 May 2000, entered into force 18 January 2002).

2 Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (opened for signature 16 January 2006, entered into force 19 August 2010).

3 Convention on the Rights of the Child (opened for signature 20 November 1989, entered into force 2 September 1990).

4 UN Doc CRC/C/NZL/3-4 (2008) at [1].

5 Action for Children and Youth Aotearoa Incorporated “Children and Youth in Aotearoa 2010: New Zealand Non-Governmental Organisations Alternative Periodic Report to the United Nations Committee on the Rights of the Child” ( June 2010).

6 Peace Movement Aotearoa “NGO information to the Committee on the Rights of the Child: Third and Fourth Periodic Reports of New Zealand under the Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflict” (August 2010).

7 Save the Children New Zealand “Hear Our Voices We Entreat: New Zealand’s Child Participation Report to the United Nations Committee on the Rights of the Child” (2010).

8 Committee on the Rights of the Child “Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Concluding Observations: New Zealand” UN Doc CRC/C/NZL/CO/3-4 (2011) [“CRC Concluding Observations on New Zealand”].

9 Ibid, at [5].

10 Ibid, at [4].

11 Ibid, at [8]-[9].

12 Ibid, at [16]-[17].

13 Ibid, at [18]-[21].

14 Ibid, at [22]-[23].

15 Ibid, at [25].

16 Ibid, at [27].

17 Ibid, at [28]-[29].

18 Ibid, at [30]-[31].

19 Ibid, at [33].

20 Ibid, at [35].

21 Ibid, at [36]-[41].

22 Ibid, at [45] and [47].

23 Ibid, at [48]-[57].

24 F Adcock “Year in Review: Indigenous Peoples Rights under International Law” (2011) 9 NZYIL (this volume).

25 Committee on the Rights of Persons with Disabilities “Consideration of reports submitted by States parties: First Periodic Report: New Zealand” UN Doc CRPD/C/NZL/1 (2011).

26 Human Rights Committee “Consideration of reports submitted by States parties under article 40 of the Covenant: New Zealand: Information received from New Zealand on the implementation of the concluding observations of the Human Rights Committee (CCPR/C/ NZL/CO/5)” UN Doc CCPR/C/NZL/CO/5/Add.1 (2011).

27 For discussion, see N Baird “Year in Review: International Human Rights Law” [2010] NZYbkIntLaw 9; (2010) 8 NZYIL 197 at 197-199.

28 Jessop v New Zealand UN Doc CCPR/C/101/D/1758/2008 (2011).

29 [2002] UKPC 15; [2003] 3 NZLR 577; (2002) 19 CRNZ 224; (2002) 6 HRNZ 539.

30 UN Doc S-15/1 (2011).

31 UN Doc A/65/L.60 (2011).

32 Jim McLay “United Nations General Assembly Resolution calling for the expulsion of Libya from the Human Rights Council” (New York, March 2011) <www.mfat.govt.nz>.

33 Eileen Chamberlain Donahoe “Statement by US Representative to the Human R ights Council on the ‘Joint statement on ending acts of violence and related human rights violations based on sexual orientation and gender identity’” (Geneva, March 2011) <w w w. geneva.usmission.gov>.

34 UN Doc A/HRC/17/L.9/Rev.1 (2011).

35 UN Doc A/HRC/17/L.18 (2011).

36 For the text of these statements see Ministr y of Foreign A ffairs and Trade <w w w.mfat. govt.nz>.

37 See Natalie Baird “Year in Review: International Human Rights Law” [2009] NZYbkIntLaw 13; (2009) 7 NZYIL 299 at 299-301.

38 Available at <www.justice.govt.nz>.

39 For the text of these statements see Ministr y of Foreign A ffairs and Trade <w w w.mfat. govt.nz>.

40 Simon Power “Rutherford to head Human Rights Commission” (press release, 6 July 2011).

41 Simon Power “Bill to establish full-time Disability Rights Commissioner introduced” (press release, 13 October 2011).

42 Human Rights Commission Human Rights Issues in the Recommendations of the Welfare Working Group (Human Rights Commission, Wellington, August 2011).

43 Human Rights Commission Submission by the Human Rights Commission – Inquiry into Boarding Houses in New Zealand (Human Rights Commission, Wellington, June 2011).

44. Human Rights Commission Submission by the Human Rights Commission – Ministerial Inquiry into Foreign Charter Vessels (Human Rights Commission, Wellington, October 2011).
45. [2011] NZCA 20.

*I thank the Ministry of Foreign Affairs and Trade and the Human Rights Commission for providing some of the information for this review. The views expressed here are my own, as are any errors or omissions.