Waikato Law Review
Nga hau e whŠ,
ngŠ iwi e tau nei,
t‘nŠ koutou katoa.
E ngŠ mana, e ngŠ reo,
rau rangatira mŠ,
t‘nŠ koutou, t‘nŠ koutou, t‘nŠ koutou katoa.
My greetings to you all, people who have gathered from near and far. To all honoured guests, to the speakers, my respects and, again, my greetings.
NgŠ mihi o te tau kia koutou.
Thank you for your warm welcome.
I am delighted to be invited this year, in the first year of my term as Governor-General, to present this prestigious lecture. My connections with the Waikato, with Hamilton, with this University and with Harkness Henry are long and fond, at least on my part. I am conscious too, that I follow in the footsteps of a number of eminent judges and lawyers who have delivered this address. I am deeply honoured to have been invited to speak today and on the topic of Human Rights in New Zealand.
You may wonder why I have chosen this, rather than a legal or judicial topic, or a subject associated with my new vice-regal role such as a constitutional issue. The answer is quite simple. I am rapidly losing touch with the juridical issues which might be engrossing for this audience, and there have been no major new constitutional developments upon which I wish to touch, since Sir Michael Hardie Boys so ably discoursed on the subject of “Continuity and Change – The 1996 General Election and the Role of the Governor-General” in July 1997.
Human Rights and its impact on our society and internationally is an evergreen subject, one which I find fascinating, and one which has real application through all the social, economic, cultural and political changes that this country and, many overseas, undergo.
So my subject tonight is human rights. Though it is not a topic on every lip, I hope that I can convince you that it deserves more attention than it receives.
In New Zealand, human rights tend to be thought of as someone else’s issue – in Africa and Asia, in recent history in Latin America, sometimes in the United States of America and in the Middle East. We tend to think that we have no problems in New Zealand. In our media, stories with the headline “human rights” tend to the trivial and even the silly.
Some of you may, for instance, have seen the splash in the news recently about what the Race Relations Conciliator wore to the Wellington Club. Was that really an issue of human rights? And why was there so much fuss about it? What about real stories of racism in New Zealand or pieces on the way in which dress restricts a person’s right to work, to go to school without looking and feeling different from other students – as if in some way you are marked out as being in a minority.
Why would dress be of any importance anyway? Well, of course it is important to the young woman who must wear a veil or be stoned, or to the young girl born in New Zealand who even here must wear a scarf out of some outdated biblical notion that women’s hair must be hidden.
But most of you might say real human rights issues are not hindering our people. Listen, however, to what Kofi Annan, the Secretary-General of the United Nations, has to say:
Simply stated, the pursuit of development, the engagement with globalisation, and the management of change must all yield to human rights imperatives, rather than the reverse.
Well, New Zealand has an interest in development, perhaps not at the level of a developing country, but the issue is of vital importance to us as we continue our ongoing struggle to maintain our standard of living. And globalisation – it has benefits and disadvantages for New Zealanders, so we are keenly interested in the debate. And we all know about change and its management. That has been a hot topic for two decades now. All of these issues can have an impact on the human rights of sectors of our community, and we must constantly be on guard to ensure that these rights are not subjugated to those of others.
Perhaps a good starting point for today are the questions posed for all countries by Mary Robinson, High Commissioner for Human Rights and Secretary-General for the World Conference against Racism:
As a new century begins, we believe each society needs to ask itself certain questions. Is it sufficiently inclusive? Is it non-discriminatory? Are its norms of behaviour based on the principles enshrined in the Universal Declaration of Human Rights?
Those questions come from the Declaration on Tolerance and Diversity. Supported by Kofi Annan, with Nelson Mandela as its Patron, this Declaration has been signed so far by 79 nations, including New Zealand. It has its roots in the Universal Declaration of Human Rights drafted at a time of intense interest in human rights. The Declaration, to which I shall return later, is inspiring and challenging.
Not many of us know about New Zealand’s proud history in the human rights field. Starting with the conference where the United Nations’ Charter was drafted in 1945, New Zealand has been a leader. The original proposals for the Charter had no substantial material on human rights – the notion was that states’ rights took precedence over individuals’ rights.
New Zealand was among an outspoken group of states that insisted that the United Nations’ Charter must have stronger language on human rights. This was based on both a moral stance and a pragmatic assessment. With the example of Nazi Germany clearly in mind, we saw that regimes which do not protect human rights are also likely to lead to international instability. In 1945, Peter Fraser, the Prime Minister of New Zealand, made this remarkable statement from this little and insignificant country at the bottom of the world:
unless in the future we have the moral rectitude and determination to stand by our engagements and our principles then the procedures laid down in this new Organisation will avail us nothing; the suffering and the sacrifices our peoples have endured will avail us nothing; and the countless lives of those who have died in this struggle for security and freedom will have been sacrificed in vain. The world will be bound for all time by what we, who are here today, make of our heavy and onerous responsibility here and now. It is my deep fear that if this fleeting moment is not captured the world will again relapse into another period of disillusionment, despair, and doom. This must not happen.
The final version of the Charter is evidence of the power of those views. Human rights are central. It begins: “We the peoples of the United Nations ... reaffirm faith in fundamental human rights”.
The next question at that crucial crossroad was whether a Bill of Rights could be incorporated into the United Nations' Charter. Although the proposal failed, a Commission was established to develop an International Bill of Rights. The New Zealand delegation again played an important role, always arguing for the strongest possible protections for human rights. Ever since that time, we have played a leading role in the development of the international laws of human rights, laws that establish the principles, the standards, and the goals for the relationship between states and their citizens, and amongst citizens themselves.
New Zealanders have always placed great emphasis on the prevention of war and the attainment of peace. For many years we have continued to work within the United Nations’ system to resolve conflict and to prevent new ones.
Our humanitarian efforts, in the form of support for United Nations’ peacekeeping missions and foreign aid programmes, and our long-term work for nuclear disarmament, demonstrate our strong commitment to peace and security. Most recently, we played a pivotal role in leading the negotiations of a key group at the meeting negotiating the Kyoto Protocol – and if anyone wonders what that has to do with human rights, think of the overlap between the right to development unhindered by environmental constraints and the obligations of nations to ensure the health and economic well being of their people.
New Zealand continues also to be committed to working with the United Nations to help bring an end to violence. The Cold War has ended, but internal conflicts continue to plague member nations. Recent turmoil in East Timor, Kosovo and Sierra Leone has highlighted the brutal consequences for civilians caught up in conflict.
Wherever conflict occurs, huge numbers are displaced internally and become refugees, hunger and violence escalate, racism increases, and the education of children is disrupted, sometimes permanently. Women and children, the disabled, the displaced, and ethnic and religious minorities fare particularly badly.
New Zealand has a long and distinguished record of supporting multinational peacekeeping missions. And it is an area of activity for which we show particular aptitude, and for which our forces are much in demand. That lengthy record is continued in one of the government’s current key objectives for New Zealand’s defence policy, which is to contribute to global security and peacekeeping through participation in the full range of United Nations and other appropriate multilateral peace support and humanitarian relief operations.
New Zealand peacekeepers have acquired their excellent reputation overseas for their professionalism, diplomacy, empathy, relative absence of racism, and dedication. The small size of our nation, and our lack of geo-political importance, have given our peacekeepers the skills required to get along with other nationalities and to broker peace agreements where a different and more egocentric attitude would have failed.
But as a nation, we are anxious to move from reaction to prevention. Nowhere is this need for preventive action more critical than in the area of disarmament. The threat of proliferation of nuclear weapons and other weapons of mass destruction still hangs over us all. Tens of thousands of nuclear weapons remain in the arsenals of the five recognised nuclear powers.
Again, New Zealand has played a valuable role. There have been significant successes arising from our work with the international community to reduce this accumulation of weaponry. The number of nuclear weapons has halved since 1982, and we were instrumental in establishing the nuclear-free zone in the South Pacific. Since then, there has been solid progress made towards establishing nuclear-free zones in South East Asia, Africa and Central Asia. Should like-minded nations and we succeed in this objective, we will have achieved significant progress in preventing war.
Peace is necessary for there to be human rights, but it is not sufficient. Real peace extends beyond the absence of war. To the Secretary-General of the UN, it “is a phenomenon that encompasses economic development and social justice ... it means democracy, diversity and dignity; respect of human rights and the rule of law”.
As I said in my swearing-in speech, for me, first and foremost, peace means also the elimination of violence and intimidation, peace between women and men, adults and children, and protection of our environment. Respect for human rights is a core ingredient of peace.
What New Zealand understood from those first days in San Francisco is that human rights are not just an optional extra for any nation, nor just an issue for countries far away. We understood that human rights underpin the basic rules of a free and democratic society. We know that human rights are the essential platform on which we can construct an authentic peace in New Zealand.
Today I would like to trace some of the major themes in international human rights developments, and then move to the developments and challenges for human rights in our own country.
Today, many people think of the United Nations as a peacekeeper – the forum for negotiating and the last resort for sending in troops to keep the peace.
But the United Nations is more than a tool for the engagement of nations. As the Charter makes clear, it was established in order to introduce new principles into international relations. Even beyond that, the Charter is written in the name of “we, the peoples” - the Charter reaffirms the dignity and worth of the human person, and respect for human rights and the equal rights of men and women.
It is useful to remember what the world was like when nations gathered to create an international body. When the United Nations was founded, two-thirds of the current Members did not exist as sovereign states – their people were still living under colonial rule. The planet hosted fewer than 2.5 billion of us, rather than the 6 billion human beings who now call this planet home.
Most big companies operated within a single country and produced for their home market. The annual output of steel was a prized symbol of national economic prowess. The world’s first computer had just been constructed – it filled a large room, bristled with 18,000 electron tubes and half a million solder joints, and had to be physically rewired for each new task. Ecology was just a subset of biology.
The vision of universal human rights in a world so much more disparate, so much less “global”, is miraculous. It was the first time a world organisation had articulated and agreed to a common set of rights – civil rights, political rights, economic rights, social rights, and cultural rights. Those who promoted the vision and the nations that made it into a reality, and who continue to pursue the dream of human rights for all, deserve both our respect and our support.
Since that first declaration, there has been no looking back. The nations of the world have articulated standards in many more areas of human activity: racial discrimination, children, torture, and the rights of women, to name just a few.
But there has been more than just a proliferation of standards. While there are continuing efforts to develop new, and to strengthen existing international standards, the emphasis in the international human rights agenda is shifting to ensuring better implementation of, and compliance with existing standards. There is a focus on more effective monitoring, on technical assistance, and on “mainstreaming” human rights through the United Nations.
Kofi Annan has said that the core challenge of the United Nations is:
to forge unity behind the principle that massive and systematic violations of human rights – wherever they may take place – should not be allowed to stand .... If states bent on criminal behaviour know that frontiers are not the absolute defence, if they know that the Security Council will take action to halt crimes against humanity, then they will not embark on such a course of action in expectation of sovereign immunity.
In a sense, this is no more than a conventional statement of criminal justice policy – it is of little use appealing to the good side of human nature, or humiliating or scolding criminals. The main way to reduce criminal offending is to instil a realistic fear of being caught, tried, and, if convicted, punished.
And this pragmatism has guided a number of initiatives, for example, the negotiations to form an International Criminal Court and to adopt an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Without a complaints mechanism, states – as they have done since the Convention came into force – will make high sounding statements about their commitment to improving the lot of women in their countries, promise to do more when the economy improves, or, in order to give the government more time to pay attention to women, when the economy slows down.
States will describe policy which never comes into force, boast of the heaven on earth in which their women live, and say that their women do not want to be literate or to be free from traditional forms of violence. But without the big stick of detection and punishment (in the form of publication of the state’s failure to comply with the principles of the Convention), change will never occur.
Of course the changes in United Nations’ standards have not sprung only from the member states of the United Nations. A strong degree of encouragement has been required from civil society. When it comes to women’s issues, the international movement of women’s non-governmental groups has worked tirelessly to promote and ensure improvements in the lives of the women of the world, as have those NGOs whose primary interest is in freeing the world of nuclear weapons, helping reduce refugee numbers, or ensuring that children have access to an education and good quality health care.
States cannot do these things on their own even where there is a will. They need the commitment and the skills and energy of civil society – all given freely and with astounding generosity by hundreds of thousands if not millions of workers in NGOs in every country in the world.
Civil society is becoming more organised and more influential. This development both supports states’ endeavours to improve their human rights’ compliance, and polices those that do not measure up. Civil society plays an invaluable role in the setting and monitoring of human rights’ standards.
There are two areas of current controversy in international human rights which I would like to discuss briefly.
The first is sometimes called “indivisibility” – basically, this phrase refers to the argument about whether some rights are more important than others. The debate has largely been played out along North-South lines, with developing countries complaining that the dominant influence of developed states has skewed the human rights’ agenda. Developing countries have said that developed states have downplayed economic, social, and cultural rights, and overplayed civil and political rights.
New Zealand had an active role in 1993 in Vienna, where 170 states adopted by consensus a statement that all human rights are “universal, indivisible, and interdependent, and interrelated”, adding that “while the significance of national and regional particularities must be borne in mind, it is the duty of States, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms”.
That is the official commitment. Few people separate their experience into different categories of rights, and those who are most vulnerable to violations of their civil and political rights are the most likely also to be the economically and socially marginalised. For those people, the two categories of rights may often be violated simultaneously and by the same actions. This is the practical meaning of the “indivisibility of rights”.
But most would agree with Mary Robinson when she said, on the fiftieth anniversary of the Universal Declaration:
We must be honest and recognise that there has been an imbalance in the promotion at the international level of economic, social, and cultural rights and the right to development on the one hand, and of civil and political rights on the other.
There is increasing recognition that this imbalance needs to be addressed, and, moreover, a growing acknowledgment of the intimate relationship between governance, human development, and human rights. Quotes from two quite different sources are apposite:
The World Bank wrote recently:
The World Bank believes that creating the conditions of the attainment of human rights is a central and irreducible goal of development. By placing the dignity of every human being – especially the poorest – at the very foundation of its approach to development, the Bank helps people in every part of the world build lives of purpose and hope.
Then, in more graphic language, Amartya Sen, the 1998 Nobel Laureate in Economics said:
It is not surprising that no famine has ever taken place in the history of the world in a functioning democracy – be it economically rich or relatively poor. Famines have tended to occur in colonial territories governed by rulers elsewhere (as in Ireland administered by alienated English rulers), or in one-party states (as in Cambodia in the 1970s) or in military dictatorships (as in Ethiopia or Somalia). Authoritarian rulers, who are themselves rarely affected by famines, tend to lack the incentive to take timely preventive measures.
The second area of controversy in international human rights is referred to as “cultural relativity” sometimes called “exceptionalism”. The argument here is that what have been called universal human rights are nothing of the sort – they have been defined by developed countries and imposed over the cultural wishes of the less developed. This is a challenge led by radical Islam and by the assertion of differing “Asian values”.
As Steiner and Alston put it:
partisans of universality claim that international human rights like rights to equal protection, physical security, free speech, freedom of religion and free association are and must be the same everywhere ... [although those partisans concede that] many basic rights (such as the right to a fair criminal trial) allow for culturally influenced forms of implementation or realisation (i.e. states are not required to use the Anglo-American jury to assure a fair trial, states need not follow any one particular voting system to meet the requirement of a government that represents the will of the people).
Those who advocate cultural relativism claim, by contrast, that:
rights and rules about morality are encoded in and thus depend on cultural context, the term “culture” often being used in a broad and diffuse way that reaches beyond indigenous traditions and customary practices to include political and religious ideologies and institutional structures. Hence notions of right (and wrong) and moral rules based on them necessarily differ throughout the world because the cultures in which they take root and inhere themselves differ. This relativist position [asserts] that the world contains an impressive diversity in views about right and wrong that is linked to the diverse underlying cultures.
The relativist argument has some anomalous aspects to it. First and foremost, the universal standards delineated by the United Nations since the Second World War are just that - universal. So the instruments speak in inclusive terms – the Universal Declaration of Human Rights says, for example, that “everyone” has the right to liberty, “all persons” are entitled to equal protection, “no one” shall be subjected to torture, and “everyone” has the right to an adequate standard of living.
However, the African Charter on Human and Peoples’ Rights, after noting in its preamble the “essential [need to] pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality”, states that the parties to the Convention will take into account “the virtues of their historical tradition and the values of African civilisation”. Palpably, African tradition plays an important role in the attainment of human rights standards.
The Charter nonetheless states its determination to “struggle for ... dignity and genuine independence [by eliminating] colonialism, neo-colonialism, apartheid, Zionism and to dismantle aggressive foreign military bases and all forms of discrimination particularly those based on race, ethnic group, color, sex, language, religion or political opinions”. The Charter does not therefore give pre-eminence to traditional values.
In most Constitutions, the language of universality is also used, reflecting the influence that the United Nations’ instruments have had in the elaboration of national standards. Nor can it be overlooked that the international standards are both drafted by the member states of the United Nations and ratified by them.
There is no one sector that imposes these values over the protest or in the face of reluctance from other parts of the world. Indeed, during the drafting of the Optional Protocol to CEDAW, African states played an influential role, insisting on strong language. Many were disappointed at what they saw as an instrument which had been weakened by the opposition of some states from West Europe, Asia, and Latin America, as well as of the United States of America, which, although not a party to CEDAW, had lobbied effectively for a watered-down version.
In a recent article in Foreign Affairs, Thomas Franck also argues that many prominent voices in non-Western societies reject the claim of “cultural relativity”. Those who propound it are not therefore, in his view, the only voices that we should hear from the developing world. More importantly, he says that those who claim “cultural relativity” often do not legitimately represent those for whom they claim to speak. His evidence is that oppressive practices which are defended as “culturally necessary” are often little more than manifestations of the current self-interested preferences of a power elite. As Franck says:
If Afghan women were given a chance at equality, would they freely choose subordination as an expression of unique community values? We are unlikely to find out.
He goes on to discuss the case of Sandra Lovelace, a Maliseet Indian from New Brunswick, who, under Indian customary law incorporated into Canadian law, lost her right to live on tribal land when she “married out” of the tribe. When the Human Rights Committee of the International Covenant of Civil and Political Rights (ICCPR) upheld her claim that this was gender-discriminatory law, the Canadian government repealed it. On further investigation, as Franck wrote:
As with much that passes for authentic custom, the rules turn out to have been imposed, quite recently, by those who stood to benefit. Discrimination against women by the Maliseet, far from being a traditional requisite of group survival, was shown by recent anthropologist research to have been copied from male-dominated Victorian society.
Radhika Coomaraswami, the United Nations special rapporteur on violence against women, says that practices such as female genital mutilation, flogging, stoning, and amputation of limbs, as well as laws restricting women’s rights to marriage, divorce, maintenance, and custody, are all inauthentic perversions of various religious dogmas. She insists that “cultural diversity should be celebrated only if those enjoying their cultural attributes are doing so voluntarily”.
Others argue that this is not a North/South, Western/Asian divide. There is nothing “Western” about religious freedom and tolerance, as a cursory look at our rather patchy and all-too-often bigoted history will show. These observers maintain that the move to more personal autonomy in religion, speech and employment, and to more equality for the races and sexes, is a product of universal education, industrialisation, urbanisation, the rise of a middle class, and new information technology. And everywhere that such development has occurred, basic human rights norms have shifted as well.
Certainly human rights’ standards are more readily adopted where the people are literate – how else can they know what their rights are? They thrive too, where they have employment, adequate food and reasonable health care – how else can they have the time or the energy to do anything other than simply subsist? They thrive where there is a functioning democracy – how else can they assert their rights? They thrive where women are not oppressed – how can a person oppressed both in public life and in her private life realistically claim her right to equality with men?
Stripping away the diverse cultural, philosophical, and economic strata, it seems to me that ultimately a bedrock of shared values and rights across this earth’s societies and cultures is uncovered. As Kofi Annan has said:
Do not African mothers weep when their sons and daughters are killed or tortured by agents of oppressive rule?
Do not African fathers suffer when their children are unjustly sent to jail?
Is not Africa as a whole poorer when one of its voices is silenced?
Human rights ... are African rights. They are Asian rights; they are European rights; they are American rights.
So if the move toward universal human rights is inevitable, if respect for those rights will come automatically with development and progress, why not simply wait for the inevitable?
First, that would be an immoral approach. New Zealand’s privileged position in this world requires us to maintain our leadership in human rights. There are too many who will suffer for far too long if other nations sit back and wait – whether they be women in Afghanistan, Kurds in Iraq, or Indians in Fiji.
Secondly, development is a slow process, one that requires the optimum coalition of resources, trade, good agricultural, technical and industrial practices, educated citizens, strongly democratic government, and a good human rights record – some of which factors occur only when a country reaches an elevated stage of development, making this argument a circular one.
But the circumstances in which human rights can flourish are frequently not present. It seems unfortunately true that extreme tribalism is on the rise, from the Balkans to the Horn of Africa, from Indonesia to Western China. And this is not a problem just for those who will suffer the consequences directly – the stability of world peace is endangered by the use of terrorism and the export of guns and money that accompany such turmoil.
Franck puts it starkly:
Let there be no mistake: the fight is essentially one between powerful ideas, the kind that shake the pillars of history. It is a deadly earnest conflict between an imagined world in which each person is free to pursue his or her individual potential and one in which persons must derive their identities and meanings exclusively in accordance with immutable factors: genetics, territoriality, and culture.
I would join with Kofi Annan in celebrating the liberating power of human rights, both individually and for cultures:
There is no single model of democracy, or of human rights, or of cultural expression for all the world. But for all the world there must be democracy, human rights, and free cultural expression .... The Universal Declaration of Human Rights, far from insisting on uniformity, is the basic condition for global diversity. That is its great power. That is its lasting value. The Universal Declaration enshrines and illuminates global pluralism and diversity. It is the standard for an emerging era in which communication and collaboration between States and peoples will determine their success and survival.
As promised, I will now return to Mary Robinson’s vision for the twenty-first century – one of tolerance and diversity. That vision is rooted in a realistic assessment, an acknowledgment that “racism, racial discrimination, xenophobia, and all kinds of related intolerance have not gone away”, but points out compassionately that “their persistence is rooted in fear: fear of what is different, fear of the other, fear of the loss of personal security”.
Many in this room will acknowledge that on occasion they have reacted out of those fears – I know that I have. But the vision goes on to say “while we recognise that human fear is in itself ineradicable, we maintain that its consequences are not ineradicable”.
I believe that she is right – fear is universal. But we do not need to act on that fear, to institutionalise its consequences. That is one of our world’s challenges.
Tolerance and diversity are therefore key concepts for the future. Diversity is the colour in which our world is painted. But what do we mean by tolerance? If it means that the majority “tolerates” the existence or the culture of the minority, then it is not a value that will promote equality and diversity in any society.
Legal definitions are scarce: the dicta that do exist generally suggest the notion of “negative” tolerance - “not interfering with other people”, thereby containing difference within parameters. There is no associated idea of any “positive” duties.
The United Nations General Assembly concluded however that tolerance – “the recognition and appreciation of others, the ability to live together, with and to listen to others – is the sound foundation of any civil society and of peace”.
So what does all this mean in our own country? New Zealand has been a leader in international human rights, and many think that we enjoy the full breadth of human rights here at home. Well, yes and no. There is no doubt that we are happily in the company of those nations where there is little regular threat to the most basic of rights for most people.
We have worked very hard to ensure that that is so, and we have continued to enlarge our understanding and our promotion and protection of human rights here at home. But it requires eternal vigilance and unceasing self-monitoring. Experience and history show that slippages in rights usually begin incrementally, or initially only affect very small groups, often already at the margins of society. By the time the erosion of human rights has become widespread or very substantive it is difficult to reverse the situation without war.
This is not a simple matter of passing the right laws. Human rights, and particularly those of the vulnerable, are protected or violated because of the strength of our domestic institutions. In the words of our Australian human rights colleagues Brian Burdekin and Anne Gallagher, we need a “pluralistic and accountable Parliament, an executive which is ultimately subject to the authority of elected representatives and an independent impartial judiciary”, as well as a vigorous civil society “which not only tolerates but encourages respect for individual difference and which enjoys a free and responsible press”.
Do we feel confident we would pass all those tests with flying colours?
Thankfully in human rights as in all areas, our ideas, our laws, and our institutions are always in change. I think that the Bill of Rights is a fascinating case in point. We have come a long distance in 40 years, done the unusual by making constitutional change in a time of peace, and in the end reached a peculiarly New Zealand solution.
But of course the roots go much further back. The first time a Bill of Rights formally appeared on our domestic horizon was the 1960s. In 1961, 1962, and 1963 the Governor-General’s speech from the Throne indicated that the government intended to introduce a Bill of Rights. In 1963 the government did so, though its ambivalence was clear. That Bill of Rights Bill, based on the Canadian Bill of Rights, went to a “Constitutional Reform Committee” and submissions gave it a comprehensive thumbs down.
Those submissions were a wonderful study in diversity – either the Bill would achieve nothing, or it would plunge our law into uncertainty and judges into controversy, or both. There were only two even lukewarm supportive submissions. The Bill, not surprisingly, lapsed.
There was a particularly vehement argument, made in 1968 by a young academic named Geoffrey Palmer: a Bill of Rights, he said, would “catapult our judges into a political role for which they do not seem to have any inclination or ability” and it would be “contrary to the pragmatist traditions of our politics”.
But from the mid 1970s views began to change. This may well have had something to do with the fact that “pragmatism” was now rather influenced by the experience of a Parliament dominated by Cabinet, itself dominated by a Prime Minister willing at times to act in ways that many thought were unconstitutional. Kenneth Keith, then a professor of law at Victoria University, said in a 1976 lecture that “[i]n 1963 several of us ... gave evidence opposing a Bill of Rights. I am not sure I would be quite as confident as I was then”.
In 1978 this country ratified the International Convention on Civil and Political Rights. By 1979 Geoffrey Palmer was in Parliament, with much altered views about the need for a Bill of Rights.
And the mid 1980s were a time of tremendous change on many fronts. In 1984 our representative at the United Nations told the General Assembly that:
The human rights set forth in the various international human rights instruments have been secured in New Zealand through a complex mix of fundamental common law precepts, jealously safeguarded by a fully independent judiciary, and the enactment of specific provisions in statute law. The New Zealand government has now decided that to improve the level of understanding about fundamental rights and liberties and to ensure that as a nation we are vigilant in protecting them, it will draw up a Bill of Rights which will overlay our existing democratic institutions and ensure proper restraints on the exercise of power by the executive and Parliament.
In 1985 a White Paper was tabled on “A Bill of Rights for New Zealand”. It is unnecessary to chart the various steps over the remainder of that decade, but in 1990 a Bill of Rights was passed into law, based on the ICCPR we had ratified 12 years earlier, and on the United Nations’ Universal Declaration of Human Rights which we had championed more than 40 years earlier.
The one feature worth noting in passing is the way that this country handled the question of “supreme law”. The question, which sat at the centre of many of the debates from 1963 to 1989, was whether a Bill of Rights should be able to override other Acts of the legislature. In the end, we have come up with what is a peculiarly New Zealand solution.
The Bill of Rights, as you will all be aware, quite explicitly says that it will not override other statutes. But it has two mechanisms to balance that prohibition which some said would make the Bill ineffectual. One is that, where possible, all legislation must be construed consistently with the Bill of Rights. The courts have not been reluctant to use that provision. For those who thought that the Bill of Rights would have no impact on our jurisprudence, I simply refer to Sir Kenneth Keith’s recent research that showed that there were 2,636 references to it in Court of Appeal judgments in just the ten years since it came into force.
The other provision requires all proposals for legislation to be vetted for their consistency with the Bill of Rights. And, if they are found wanting, then the Attorney-General is required to stand up in Parliament, tell her colleagues, and explain. This has proved to be a very effective way to bring human rights into sharp focus in our policy and political processes.
There can, of course, be no way of counting the number of times that legislative proposals have been re-shaped before they reach the House, changed in the light of that looming audit against the Bill of Rights. Policy makers are required to consider not only whether their proposal would fail a vetting, but hopefully are reminded of the positive goals and intentions of the Bill of Rights.
And by my last count, since 1990 the Attorney General has had to stand before other Members and report an inconsistency with the Bill of Rights for only eight government Bills. Several of those were subsequently amended or the offending provisions were withdrawn.
It has been quite a road of change, but we have ended up with what, I think, is a rather kiwi way of dealing with this thorny issue – we do not have an American system with explicit balances of power, we do not generally pit the judiciary against the legislature, but nor do we have the rigidity of a written constitution which is too sacred to be flexible.
But we do want human rights considerations to be taken seriously. So we have given the courts room to comment and interpret, and have created political processes which mean that human rights cannot be forgotten.
Another area where change is occurring, but rather more slowly than the incorporation of a Bill of Rights into our law, is the whole subject of indigenous rights. I can do no more, in a lecture as diverse as this, than point out the conundrum.
The international human rights system has grappled with international indigenous rights since the early 1980s. Developments to date include the International Labour Organisation Convention 169 concerning indigenous and tribal peoples in independent countries, the draft declaration on the rights of indigenous peoples, and the recent decision of the United Nations agreeing to a Permanent Forum for indigenous peoples.
Even though the law in this area is still emerging, there has been noticeable internationalisation of indigenous civil society – in part as a result of the commonality of experience of indigenous groups around the world.
That is the international human rights framework. At the local level in New Zealand, human rights and Treaty issues are as yet generally regarded as almost completely separate. In part this is because the Treaty provides for a unique relationship between the Crown and MŠori. The principle of partnership – a reciprocal obligation on both the Crown and MŠori to act in good faith, fairly, reasonably and honourably towards each other – is paramount.
It is difficult conceptually to fit this unique relationship alongside the human rights framework. In part this is perhaps because the human rights discourse generally focuses on the rights of the individual, as opposed to the collective. And, in part, it is perhaps due to a reluctance by MŠori to be grouped with other minorities, and a strong sense that the notion of minority rights is sufficient to capture Treaty rights. Nevertheless this remains an area of potential future development, particularly in view of developments at the international level.
I thought it might be illuminating to return to the notion that human rights are “indivisible”, and see how we are doing here in New Zealand. On the basics like the right to vote and be free from torture, we are doing pretty well. But what about that accusation from the developing world that everywhere social, economic and cultural rights are relatively neglected?
First, I would like to make clear that I agree that poverty erodes or nullifies not only social and economic rights like the right to health, adequate housing, decent food, and education, but it also erodes civil and political rights like the right to political participation. The indivisibility of these rights must be obvious to those who are poor in our nation.
I agree also with the International Council on Human Rights when they say that “blatant and covert discrimination on grounds of race remain entrenched in almost all societies on the planet” – and that includes New Zealand.
As one example of how the problems here mirror those everywhere on this earth, the lives of New Zealand’s women reflect those of other women in every culture and society in the world. If you want to see the effects that structural economic reforms have had on women, for instance, if you want to see what casualisation of labour means in New Zealand, then walk through any commercial building at 7.00 in the evening.
See the Pacific Island women cleaning up after the men and women who work there during the day. Talk to any of them to find out how many part-time jobs they have. Ask if their husbands/partners are in work and can or will look after the children. Ask about their health – what is striking is the number who do not go to the doctor or who, like a woman cleaner where my sister works, has emphysema, a life expectancy of five years, and a reluctance to tell her husband because her income is vital for the support of their primary school-age children.
Talk to women in massage parlours, especially those from overseas. Then tell me that, because women hold the top jobs in New Zealand, there is no suffering or discrimination faced by women in New Zealand.
And what is most striking about these examples is the classic connection between race and sex. In New Zealand, as in most parts of the world, to be a woman and a member of an indigenous community and/or a minority ethnic group, is to guarantee maximum discrimination. Yes, human rights are indivisible, and we have plenty of room to improve in New Zealand.
While I do not have the time here to explore the complexities of the questions surrounding “globalisation”, I would assert that the economic sphere cannot be separated from the more complex fabric of social and political life. We must not see the economic life of our nation as distinct from that of our citizens. “The economy” is not a concept detached from human existence. It does not have a life of its own.
I believe that, to thrive, any economy must have a foundation beyond economic values, there must be deeper shared values and institutions to support those values – we must be committed to broader and more inclusive social purposes.
I do not see this commitment to breadth and compassion and diversity as hindrances on our growth and prosperity – quite the contrary. I shall once more return to Mary Robinson’s vision for the twenty-first century. She asks us to remind ourselves of what is truly possible:
Instead of allowing diversity of race and culture to become a limiting factor in human exchange and development, we must refocus our understanding, discern in such diversity the potential for mutual enrichment, and realise that it is the interchange between great traditions of human spirituality that offers the best prospect for the persistence of the human spirit itself. For too long such diversity has been treated as a threat rather than a gift.
What of that other contentious theme in international human rights debates, “cultural relativism”? Can that really be an issue in New Zealand? I would say that it too offers important insights here at home.
First, it is not all rosy in our garden. Violence against women and girls is a constant and sickening theme. We are horrified by bride burnings in Pakistan and India, female genital mutilation in parts of Africa, and the religious-inspired criminalisation of abortion in Chile which results in women dying from botched abortions or being imprisoned because they sought medical help.
We condemn the widespread rape of women and girl children in countries in conflict, and deplore the selling of girl children as slaves in payment for family debts, as occurs in Africa and parts of Asia and of the Pacific.
But when women from other countries read the statistics of abuse in New Zealand – rape, sexual abuse of women and girls, incest, hospitalised or murdered women and children – they too are horrified. In this context, there are two comments I want to make about violence against women. Such violence is universal: every country finds different ways to subjugate and physically dominate women and children. Further, there are some fundamental standards, and we do not score highly. What we in New Zealand find shameful but almost normal violence, the stuff of the daily papers here, causes shudders in other countries. We should sit in judgment on the appalling violence elsewhere, but we must also acknowledge and work to change the situation of women and children here.
Secondly, let us remind ourselves that we are not an homogenous people. We have heard these statistics before, but they bear re-hearing in the context of whether the questions about “cultural relativity” of human rights have any salience here.
Thirty years ago, just fewer than 90 percent of New Zealanders were descended from European immigrants, about 8 percent had MŠori ancestors, and the remaining two or three percent of us had forebears who came from elsewhere, mostly from the Pacific and Asia.
These days, about 70 percent of New Zealanders are of European descent, 15.5 percent of us have MŠori ancestry, the rest being of Pacific or Asian ethnic origin, or part of the remaining four percent who are not officially categorised.
And demographers predict that, thirty years from now, a little more than 60 percent of New Zealanders will have European ancestry, just under 19 percent of us will be of MŠori descent, and 20 percent of us will have family ties with the Pacific, Asia, the Middle East, or Africa – from everywhere, really.
So we have some basic questions, things we used to take for granted but which need re-examining. “Who are we, as New Zealanders?” is one vague but immensely important one. Another is “How should we or might we define our national identity, what we stand for?” And “What expectations may we legitimately have of each other, as fellow citizens and what are our standards of behaviour – as between citizen-to-citizen and state-to-citizen relationships?”
The answers are already different from what they were, say, thirty years ago, and will surely continue to evolve. The answers have to reflect that our national identity is, and always will be, a work in progress.
But we do have a national identity? I disagree strongly with people who say that we don’t. Who are we? We are the people of this land. This is our place to stand, our Turangawaewae.
We are the people who know what a mountain beech forest smells like in the summer time, and how Rotorua smells all the time. We know what manuka honey and Bluff oysters taste like. We love whitebait or mutton-birds or kina. We know and love the sounds of the sea.
We know how a Foveaux Strait gale can sometimes be so frigid that a local sports team could be named the Southern Sting, and how a Wellington Northwester can bully you. We are indeed the people who, in the words of the Split Enz song, have known four seasons in one day.
We are the people who know what an iwi and a whanau are, and have at least a vague idea of how to define mana, and perhaps mauri. We are the people who know why John Clarke and Billy T James and the Topp Twins are so funny.
We are the only people who have grown up to have a good idea of how wonderful a place this is, our small fragment of Gondwanaland; how much it has been altered and damaged by human settlement; and we are becoming increasingly aware of how much has to be done to preserve the fraction of the original wonder that remains.
On occasion, we have led the world in introducing such things as universal adult suffrage, and the design and implementation of social safety nets. We are regarded with astonishment internationally, because women hold so many influential positions.
We are sometimes proud and sometimes ambivalent about our bi-culturalism. Redress of past wrongs, much applauded internationally, can cause arguments about the meaning and purpose of the Treaty of Waitangi.
We were anti-apartheid. We are anti-nuclear. And we really bridle at criticism, real or imagined, if it comes from outsiders.
We are rebellious when we think other countries are trying to tell us what to do or how to be, or outsiders are trying to tell us what to think. We are still collectively young enough that all too many of us attempt to make up for perceived slights or feelings of powerlessness by resorting to violence.
And if the people whom we feel may have slighted us are beyond our reach, or if we are unwilling or feel unable to take charge of our lives, to empower ourselves, we may visit that violence on members of our own families. Like adolescents, many of us drink too much and that leads to violence in the home and outside it, and too much loss of young lives on the roads.
We are still collectively young enough that we can became angry at any disagreement with our views, choosing not to discuss or to reconcile the differences themselves, but to attack the holders of views that diverge from our own. This is most damaging when MŠori and Pakeha talk past each other. Much public debate in New Zealand, on a whole range of topics, is marred when arguments about ideas turn into quarrels between people.
And that is where I return, from this little sidetrack, to the question of cultural relativity – I think that we have some distance to go in learning tolerance. Tolerance is not a feature of human history or of many contemporary societies. It does not usually occur on its own accord but needs to be encouraged and respected. Part of New Zealand’s future as we mature as a society will be to develop tolerance and learn to be secure enough to celebrate our diversity, as well as what we all hold to be precious in New Zealand. And to challenge what is wrong.
I have no doubt that in New Zealand there continues to be real commitment to human rights, even if we do not always use that language. I am proud of our human rights history, and I will be among those who continue to work to improve our own human rights and to improve the lot of others in this little inter-connected world of ours. I will join those working to create a shared future, one based on a celebration of our common humanity, and our common humanity in all its diversity.
Nš reira, t‘nŠ koutou, t‘nŠ koutou, t‘nŠ koutou katoa.
[*] DBE, PCNZM, Governor-General of New Zealand.