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Consideration of New Zealand's third periodic report on the implementation of the International Covenant on Economic, Social and Cultural Rights [2012] NZHRCSub 3 (1 March 2012)

Last Updated: 31 May 2015

Submission by the New Zealand Human Rights Commission


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Consideration of New Zealand’s third periodic report on the implementation of the International Covenant on Economic, Social and Cultural Rights
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Committee on Economic, Social and Cultural Rights
March 2012



Contact person:

Michael White
Legal and Policy Analyst

Phone 04 471 6752

Email: michaelw@hrc.co.nz

  1. INTRODUCTION
1.1 The New Zealand Human Rights Commission (the Commission) welcomes the opportunity to provide information relevant to the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to inform the consideration of New Zealand’s third periodic review. The Commission is an independent national human rights institution with ‘A’ status accreditation. It derives its statutory mandate from the Human Rights Act 1993 (HRA). The HRA aims “to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights.”
1.2 In 2009 New Zealand was subject to its first Universal Periodic Review (UPR). In its submission to the review the Commission identified violence, inequality, pay equity, poverty, Māori imprisonment, and the full implementation of international human rights norms as key areas for action. These issues were reflected in recommendations from other countries during the review process and by the Human Rights Council’s UPR Working Group. In total 64 recommendations were made. The Government accepted, in whole or in part, 56 of these recommendations and made strong commitments to improve the realisation of rights in New Zealand.[1] The Commission continues to actively monitor the implementation of New Zealand’s UPR recommendations, as well as those from other treaty reporting bodies.
1.3 In March 2010 the Commission provided information to assist the Human Rights Committee in its consideration of New Zealand’s fifth periodic report on the implementation of the International Covenant on Civil and Political Rights (ICCPR). The critical challenges identified by the Commission included:

All of these challenges were partially or fully reflected in the recommendations made by the Committee in its concluding observations.[2]

1.4 In 2010 the Commission reviewed New Zealand’s human rights performance, mapping how well human rights are promoted, protected and implemented in New Zealand.[3] The review found that New Zealand met international human rights standards in many respects and had most of the elements for the effective protection, promotion and fulfilment of human rights. However, the review also reveals the fragility of some of the gains. It identifies poverty, entrenched inequalities and structural discrimination, violence, and the full incorporation of international human rights norms as key human rights issues that continue to limit the ability of a small proportion of society to achieve their full potential.
1.5 In September 2010 and February 2011 Christchurch, New Zealand’s second largest city, suffered major earthquakes. The earthquakes resulted in significant loss of life and significant personal injury and trauma and destruction of homes, jobs, businesses and infrastructure. These effects have been compounded by continuing, and often significant, after-shocks. The earthquakes have posed significant new human rights challenges for New Zealand.
1.6 This submission focuses on the Christchurch recovery, and three key enduring challenges for New Zealand identified in New Zealand’s UPR, other treaty body recommendations, and highlighted in the Commission’s 2010 review:

  1. CHRISTCHURCH EARTHQUAKE RECOVERY

2.1 The Christchurch earthquakes and the corresponding recovery efforts have posed new challenges for New Zealand. Although it is too early to assess the long term human rights implications, in the short term there has inevitably been a significant impact on the freedom of people living in Christchurch and realisation of their rights. The Christchurch recovery and rebuild has, however, presented opportunities to do things differently to restore and, in some cases, enhance the social, economic and cultural wellbeing of communities.
2.2 A number of new models of service delivery have been developed. For example, government-funded supports and services to disabled people have been restructured around neighbourhood bases representing a shift from programme-based service delivery towards individualised service delivery.
2.3 Another innovation has been the Canterbury District Health Board’s implementation of a new model to support the rehabilitation of older people in their homes (CREST). The CREST model focuses on primary and community care and assists people in a way that restores independence. It has provided a greater integration of services and restorative models for older people. In addition CREST has provided better job security and pay for carers.[4]
2.4 The Commission, which has an office and staff in Christchurch, has been working closely with humanitarian and earthquake recovery organisations to facilitate the participation of vulnerable groups in planning and decision making processes. It is committed to ensuring that appropriate frameworks are in place to protect rights through all phases of the recovery, and has indicated to the Government that its role as a National Human Rights Institution will focus on:

2.5 Although still in its early stages, it is clear that the challenges involved in the recovery are particularly acute for vulnerable groups such as disabled people, older people, children and young people, refugees and migrants and those who have been displaced from their homes and lost their jobs. Disabled people, for example, have encountered increased access and mobility barriers from the damaged urban environment which consequently impedes the ability to fully participate in society. The Commission will continue to focus on protecting and promoting the rights of these vulnerable groups.
2.6 The Government has properly made the Christchurch recovery a priority in terms of public resources and service delivery. In the immediate aftermath, the Government’s response focused on responding to needs. In the recovery phase greater emphasis needs to be given to promoting and progressing human dignity and rights and limiting freedoms only to the extent absolutely necessary to enable the recovery.
2.7 Although official data on earthquake impacts remains variable, the Commission is monitoring both internal and external complaints data. As at February 2012 more than 270 complaints had been lodged with the Office of the Ombudsman.[6] To January 2012 the Commission received a total of 81 complaints and enquiries relating to the earthquakes. From the Commission’s data the most pressing issues are:

Housing and related health issues

2.8 More than 100,000 homes were damaged by the earthquakes. This represents approximately half the housing stock of Greater Christchurch.[7] Six hundred and thirty five aged care residential beds were lost[8] and there has been a major loss of boarding house accommodation in the central city. This has inevitably put strains on housing supply and has resulted in significant overcrowding of remaining homes.[9] In addition to the housing shortage, there are significant inadequacies with the remaining housing stock. A significant number of people are facing winter in unrepaired homes and without adequate heating or insulation[10].
2.9 Failure to protect the right to adequate housing following a natural disaster can significantly contribute to poor outcomes in the realisation of other economic, cultural and social rights, particularly the right to health. Inadequate, overcrowded and uninsulated housing is a factor in poor health outcomes.[11]
2.10 The Government has established temporary housing options for homeowners who were displaced by the earthquake. However, the Commission’s complaints data suggests that those who were renting have not routinely received similar support.
2.11 The central Government Agency responsible for the co-ordination of recovery efforts, the Canterbury Earthquake Recovery Authority (CERA), has noted the ongoing need for “temporary accommodation to support demand from families (moving from their current residential properties for short periods of time to allow for repairs and rebuild), and workers (moving into the region to assist with the recovery efforts) to be provided.”[12] However, it is unclear what the Government’s role may be in providing such accommodation. CERA suggest that this may only be a facilitation or co-ordination role (if any).[13]
2.12 In protecting the right to adequate housing following a natural disaster, States have the primary duty and responsibility to provide temporary accommodation for those who have been displaced, without discrimination.[14] While public and private sector agencies may be well equipped to meet the needs and demands of those affected, more could be done to integrate services across agencies to increase accessibility and maximise adequate housing outcomes. The Commission recommends that the central and local Government commit to integrating services across agencies to ensure the availability, affordability, and adequacy of temporary housing and that houses are adequately insulated as they are repaired.

Access to Information

2.13 The Commission has received a number of complaints and inquiries about access to information. Information about people’s legal rights and options is hard to find, not in accessible formats and is in a number of different places.
2.14 Predominately these complaints have come from disabled people and those from culturally and linguistically diverse communities (CALD). Local and central government agencies have acknowledged that they are not engaging effectively with CALD communities in the wake of the earthquakes[15] and have indicated a desire to develop and implement best practice guidelines.
2.15 The participation of those affected in decision making is synonymous with a rights-based approach. All affected communities should have the opportunity to be consulted and to participate in the planning and implementation of various stages of the recovery effort. This requires co-ordination between key recovery agencies as well as information in a variety of accessible formats that is easily available and understood.[16] The Commission recommends that the Government commit to a coordinated and accessible public information and communication strategy which includes staff training and information about avenues of review and appeal.

  1. VIOLENCE – ARTICLES 10 AND 13

3.1 The level of violence in New Zealand, particularly family violence, remains unacceptably high.
3.2 The Ministry of Justice’s New Zealand Crime and Safety Survey 2009 (NZCASS 2009) provides an estimate of the level of crime experienced by New Zealanders aged over 15 years. Victimisation surveys such as this provide a full picture of the level of crime, because they include an analysis of unreported offences. NZCASS 2009 estimates that there were 699,000 incidences of assault and 137,000 incidences of sexual offending in 2008. The survey also found that Māori had a higher risk of victimisation across all offence types and this was especially so for Māori women.
3.3 In 2009, the Ministry of Social Development (MSD) reported that 2855 children were physically abused, 1126 were sexually abused and 15,615 suffered emotional abuse and neglect.[17] In 2010/11 the MSD found there were 55,194 recorded incidences of family violence, up from 46,937 in 2009/2010.[18]
3.4 Over the reporting period New Zealand has instigated a range of initiatives. In particular:
3.5 The Taskforce for Action on Violence within Families represents an ongoing commitment from Government to take action. In 2011/2012 the Taskforce work will focus on:
3.6 In New Zealand’s UPR the Government was urged to increase efforts to address domestic violence and violence against women. The Government responded by committing to continue to take an active approach to address these issues.[21] In March 2012 the Prime Minister announced a new results driven focus for the public sector. He outlined outcomes he expects to see over the next 3 to 5 years. These included a commitment to reducing the level of violent crime, and the level of abuse and assault of children and young people.[22]
3.7 In order to achieve this the Commission believes that Government should implement the recommendations from the plethora of reports that have already been undertaken into family violence and sexual violence in New Zealand, and take steps to reduce violence, abuse and bullying in New Zealand schools. The Taskforce for Action on Sexual Violence, for example, was disestablished after two years and few of its recommendations have been implemented. The Commission recommends that as a priority the Government commit to a timetable for the implementation of recommendations from the Report of the Taskforce for Action on Sexual Violence. The Commission has consistently raised this issue before other international reporting mechanisms such as the UPR and the Committee on the Elimination of Discrimination against Women (CEDAW). CEDAW will examine New Zealand’s 7th periodic report in 2012.

Violence, abuse and bullying in schools

3.8 Violence is pervasive in New Zealand schools and has serious and often life-long effects. Effects on victims can include living with anxiety and fear, lowered self-esteem, engagement in risk-taking behaviours such as substance abuse, self-harming, truanting and dropping-out from school, all with associated long term adverse impacts. Victims may suffer mental health issues including suicidal ideation, relationship difficulties and impeded emotional, behavioural and cognitive development.[23]
3.9 The current policy and legislative scheme imposes obligations on schools to prevent violence including:

3.10 In response to recommendations made during New Zealand’s UPR the Government confirmed its objective to make the community safer for children, and to protect children and young people from abuse and neglect.[24] However, the prevalence of peer- to- peer violence and abuse in schools shows that the current legislative and regulatory framework fails to provide enough protection for children and young people. Statistics New Zealand figures show the number of recorded offences of "acts intended to cause injury" at schools or education institutes increased 23 per cent from 2004 to last year.[25]
3.11 Building on the suggestions made in the Office of the Ombudsmen’s report the Commission proposes that legislation be enacted to require all schools (public, private and integrated) to:
  1. implement school safety programmes and policies on a whole-school basis;
  2. appoint and train safety officers who will facilitate responses to violence, abuse and bullying;
  1. institute a process to respond to complaints of violence, bullying and harassment; and
  1. report annually to the Education Review Office on whole-school approaches to school safety; the number of incidents of violence, abuse and bullying; and complaint outcomes.

3.12 Over the next reporting period the Commission will advocate for and monitor progress in implementing a national response to bullying, violence and abuse in schools including legislative, policy and/or practice changes required to improve students’ safety at school. This will include a focus on affected children, young people and their families.

  1. INEQUALITY – ARTICLES 2, 3, 6-8, 11, 13
4.1 The majority of New Zealanders enjoy a high quality of life and experience good outcomes.[26] However, a small proportion of New Zealanders continue to experience poor outcomes across a range of indices, including education, health, housing, employment and imprisonment:

4.2 New Zealand was urged in its UPR to pursue efforts to combat inequalities and socio-economic disparities.[31] Successive governments have sought to do this through ‘whole-of-government’ initiatives[32] and there has been progress in recent years in reducing disparities in some areas. For example, comparing data over the past five years shows improvements in education for all ethnic groups for some key indicators.

4.3 However, the Commission believes that the majority of government initiatives have generally failed to address entrenched inequalities because assistance has not been specifically targeted to the small proportion of people within vulnerable groups who experience the highest level or most complex forms of disadvantage.

4.4 For example, between 2004 and 2007 the Working for Families initiative had a significant impact on the material wellbeing of low-income working families and those beneficiaries with children who earned income. During this time, household incomes below the median grew more quickly than those above it, for the first time in 25 years. However, Working for Families did not, as noted by the Committee on the Rights of the Child in 2011, address those who experience hardship most acutely, namely those on benefits.
4.5 Socio-economic factors are widely acknowledged as important determinants of health and other social outcomes.[33] The 2009 Household Incomes Report provides showed that 22 per cent of children were living in poverty in 2008, “poverty” established as below 60 per cent of the median income before housing costs. Taking into account housing costs, 28 per cent of all children, and 60 per cent of children in families with no full-time workers, were determined to be living in poverty. Using the recently established official EU standard of hardship, New Zealand has an above average hardship rate for children, with 18 per cent of children living in material hardship.[34] In 2009, the OECD’s first ever report on outcomes for children concluded that “New Zealand needs to take a stronger policy position on child poverty and child health, especially during the early years when it is easier to make a long-term difference.”[35]
4.6 In 2003, during New Zealand’s second periodic report on the implementation of the ICESCR, the concluding observations from the Committee specifically recommended New Zealand adopt a national plan to combat poverty.[36] In its 2008 UPR submission, the Commission emphasised this as a top priority, stressing that a national plan required targets. These were reinforced in recommendations from other countries, such as Canada, during the review process and by the Human Rights Council’s UPR Working Group.
4.7 In 2008 the Office of the Children’s Commissioner recommended actions were needed in the health, education, employment, housing, social security and tax sectors. Even more fundamentally, it called for a cross-government commitment to eliminating child poverty, with intermediate milestones, and clear measurable targets for key indicators in the areas of education, housing and health.[37]
4.8 In December 2011, a Ministerial Committee on Poverty was established by the Government for the stated purpose of improving co-ordination of government activity aimed at alleviating the effects of poverty in New Zealand. On 19 March 2012, the Children’s Commissioner announced that he is forming an expert’s group to find solutions to child poverty which will inform the work of the Ministerial Committee on Poverty.

In relation to poverty, the Commission recommends that the Government work closely with the expert group formed by the Chlildren’s Commissioner and set measurable targets for vulnerable groups across key indicators. These targets could be incorporated in a Children’s Action Plan with legislation, such as a Children’s Act, requiring Chief Executives of relevant government agencies to report annually against these targets.

Women

4.10 In New Zealand’s UPR it was recommended that the Government set measurable targets for improving the representation of women in senior management in the public service, and realising gender pay equality. Although the Government agreed with the goal of reinforcing the rights of women in the labour market, it did not agree to such target setting.[38]
4.11 Since 2003 there has been a significant change in the government’s machinery to advance pay and employment equity, and there have been some improvements in both representation and pay parity. However, the Commission is mindful that in the absence of measurable targets and benchmarks these gains remain fragile and, in some cases, may risk being reversed.
4.12 The gender pay gap has narrowed to 9.6 per cent with the ratio of female to male median hourly earnings in June 2011 quarter at 90.4 per cent up from 89.4 per cent in the June 2010 quarter, the highest level since 1997.[39] However, pay and employment equity reviews in the public sector found gender pay gaps in full-time equivalent median annual salaries that ranged from 3 to 35 per cent. Analysis by the Commission in 2010 showed that 24 of 34 public service departments had a gender pay gap more than the gap in the total labour force.[40]
4.13 In 2012, the Commission’s review of Crown entities’ annual reports revealed that 80 of the 96 Crown entities had gender pay gaps. Twenty-four had pay gaps of more than 25 per cent. The highest was 49% and the lowest 0%. Eight Crown entities had pay gaps of 40% or more. Only two Crown entities indicated their gender pay gaps were in favour of women.
4.14 The Commission recommends that the Government fully implement the response plans of public service departments to their individual pay and employment equity reviews undertaken with state funding between 2004-2009 and set targets to eliminate the gender pay gap within public service departments by 2020.
4.15 New Zealand women have made significant progress in participation in many areas of the labour market. However, the levels of participation are not matched by levels of representation in corporate governance and in senior management in the public and private sectors. Women have yet to reach the Commonwealth target of 30 per cent representation (28.3 per cent) in local government, the judiciary remains static at around 26.3 per cent, and representation in national politics is at 32 per cent down from 33 per cent previously. Although women comprise 59 per cent of all public servants, only 17.6 per cent are chief executives of public service departments and 37.8 per cent of senior management are female.[41] The figure for chief executives is expected to fall further with pending retirements. The Commission recommends that the Government establish targets for improving representation of women in senior management in the public service.

  1. SCOPE OF INTERNATIONAL OBLIGATIONS
5.1 New Zealand has a good record of ratifying human rights treaties. Over the reporting period New Zealand became a party to the 1961 Convention on the Reduction of Statelessness (2006), ratified the Optional Protocol to the Convention against Torture (2007), ratified the Convention on the Rights of Persons with Disabilities (2008), pledged support for the Declaration on the Rights of Indigenous Peoples (2010), and ratified the Optional Protocol to the CRC relating to the sale of children, child prostitution and child pornography (2011).
5.2 In 2010, reflecting its commitment to the CRPD, the Government recognised the Human Rights Commission, the Office of the Ombudsmen, and the Convention Coalition[42] as independent monitors of the Government’s implementation of the United Nations Convention. In 2011 the Minister of Justice proposed changes to the Human Rights Commission’s governance arrangements, including a provision for a full-time Commissioner dedicated to disability issues. As an interim arrangement, a part-time Commissioner was appointed at .8 FTE for 18 months.
5.3 However, New Zealand has failed to give effect to individual complaints mechanisms under some of the Conventions and Covenants to which it is a State Party:

The Commission recommends that the Government commit to giving effect to all individual complaints procedures relating to ratified conventions and covenants as further expression internationally and domestically of its role in advancing the protection of human rights.

5.4 Despite New Zealand’s clear commitment to International human rights treaties there continue to be significant gaps in New Zealand’s incorporation of international human rights standards in domestic law and a failure to apply them in the development of legislation and policy, so that human rights and responsibilities are a reality in the lives of all New Zealanders. To better fulfil New Zealand’s international human rights obligations, the Commission recommends explicit Government commitment to the full and effective incorporation of ratified international human rights standards in domestic legislation, in policy development and in public sector professional development and training.
5.5 The Commission is available to answer any written questions the Committee may have when considering New Zealand’s third periodic review on the implementation of the ICESCR.

[1] United Nations Human Rights Council (2009), Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/12/8/Add.1
[2] CCPR/C/NZL/C05
[3] A copy of the Summary report can be found at: http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/Human_Rights_Review_2010_Summary.pdf
[4]Human Rights Commission (2012), Draft report on the Inquiry into Equal Employment Opportunities in the Aged Care Sector, forthcoming.
[5] Inter-Agency Standing Committee (2011), Operational Guidelines on Human Rights and Natural Disasters.
[6] New Zealand Herald (15 February 2012), Bulging backlog creating a crisis in Office of the Ombudsman, http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10785726
[7] Canterbury Earthquake Recovery Authority (2011), Briefing for incoming Minister, December 2011.
[8] Ibid.
[9] Canterbury District Health Board (2012), Housing as health and human rights issue - a snapshot of issues in Canterbury at 1 March 2012.
[10] Ibid.
[11] Ibid.
[12] Supra note 7.
[13] Ibid.
[14] Supra note 5.
[15] Sarah Wylie (2012), Best Practice Guidelines for Engaging with Culturally and Linguistically Diverse (CALD) communities in Times of Disaster: Findings of Action Research for Circulation to CALD communities.
[16] Supra note 4.
[17] Ministry of Social Development (2009), Protecting our most vulnerable infants. Media release, 3 September.
http://www.msd.govt.nz/about-msd-and-our-work/newsroom/media-releases/2009/pr-2009-09-03.html
[18] Ibid.
[19] Report of the Taskforce for Action on Sexual Violence (2009). http:/www.justice.govt.nz/policy-and-consultation/taskforce-for-action-on-sexual-violence
[20] http://www.msd.govt.nz/about-msd-and-our-work/work-programmes/initiatives/action-family-violence/reports.html
[21] Supra note 1.
[22] Rt Hon John Key (15 March 2012), Speech to Auckland Chamber of Commerce. https:/johnkey.co.nz/categories/4-Speech
[23] Office of the Children’s Commissioner (2009) School Safety: An Inquiry into the safety of students at school.
[24] Supra note 1.
[25] Supra note 23.
[26] See for example New Zealand Human Rights Commission (2011), Human Rights in New Zealand 2010; New Zealand Human Rights Commission (2012), Race Relations Report 2011; Johnson A., Salvation Army Social Policy and Parliamentary Unit (2010) A Road to Recovery; Statistics New Zealand (2011) Household Labour Force Survey.
[27] Johnson A., Salvation Army Social Policy and Parliamentary Unit (2010) A Road to Recovery.
[28] Statistics New Zealand National Population projections accessed June 2011 at http://www.statistics.govt.nz/tools_and_services/tools/TableBuilder/population-projections-tables.aspx
[29] Supra note 26.

[30] National Health Committee (2003), To Have an Ordinary Life: Kia Whai Oranga Noa, (Wellington: National Advisory Committee on Health and Disability).
[31] Supra note 1.
[32] Such as Whanau Ora and Addressing the Drivers of Crime. In 2011 the Government released a Green paper for Vulnerable Children, which is intended to guide discussions about child poverty and child services. In September 2011 the Māori Affairs Select Committee announced it would hold an inquiry into the determinants of wellbeing for Māori children.
[33]See for example: Macintyre, S. (1997) "The Black Report and beyond: What are the issues?" Social Science and Medicine, 44: 723-745; Ministry of Health (2000) Reducing Inequalities in Health, Ministry of Health, Wellington.
[34] Perry, B (2009b), Non-income measures of material wellbeing and hardship: first results from the 2008 New Zealand Living Standards Survey, with international comparisons. Working Paper 01/09 (Wellington; MSD).
[35] Organisation for Economic Cooperation and Development (2009), Doing Better for Children (Paris: OECD).
[36] Committee on Economic, Social and Cultural Rights (2003). Concluding Observations / Comments: New Zealand. Thirtieth session: E/C.12/1/Add.88

[37] Fletcher, M & Dwyer, M (2008). A Fair Go for all Children: Actions to address child poverty in New Zealand. A report for the Children’s Commissioner and Barnardos, p21.
[38] Supra note 1.
[39] Statistics New Zealand (June 2011), New Zealand Income Survey.
[40] Human Rights Commission, New Zealand Census of Women’s Participation 2010, http://www.neon.org.nz/census2010/
[41] Ibid.
[42] The Convention Coalition consists of the Disabled Persons Assembly (DPA), the Association of Blind Citizens, People First, Deaf Aotearoa, Ngāti Kāpo, and Ngā Hau E Whā (a network of organisations of people with experience of mental illness).
[43] Supra note 1.
[44] Ibid.
[45] National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council, Resolution 5/1 at para 2.1.

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