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New Zealand's human rights performance under the spotlight

31 January 2014

New Zealand recently submitted its second national report to the Universal Periodic Review (UPR), a United Nations mechanism which reviews the human rights situation in each UN member state.

New Zealand will be examined on its report on 27 January 2014 in Geneva. At that time, a Working Group of other member states will be able to comment on and ask New Zealand questions about the state of human rights here, and recommend action they consider New Zealand should take in relation to human rights.

The UPR’s objectives include improving human rights on the ground, and the fulfilment by each state of its human rights obligations. Positive developments and challenges are to be assessed. Among the principles underpinning the UPR are objectivity (including the provision of objective and reliable information), transparency and cooperative dialogue.

The UPR process provides for input by and consultation with non-governmental organisations. As part of this, on 17 June 2013 the New Zealand Law Society submitted a shadow report to the UN Human Rights Council (the UN body mandated to conduct the UPR) www.lawsociety.org.nz/__data/assets/pdf_file/0006/68541/United-Nations,-Universal-Periodic-Review-17-6-13.pdf.

A copy of the shadow report was also provided to the Government. In it, the Law Society referred to a number of legislative measures which it considered did not meet New Zealand’s domestic and international obligations. It also stated its view that New Zealand’s valuable mechanisms for the promotion and protection of human rights would benefit from further strengthening.

In this regard, the report referred to the enactment of five Acts despite reports by the Attorney-General under s7 of the New Zealand Bill of Rights Act 1990, advising Parliament that they appeared to be Bill of Rights-inconsistent. A number of concerns about other legislation and the s7 Bill of Rights reporting mechanism were also set out.

The Law Society further stated its view that a number of recent legislative measures conflicted with fundamental aspects of the rule of law.

Concerns were raised about legislation which ousts the courts’ judicial review jurisdiction, and therefore impinges on the right of access to the courts (affirmed in s27 of the Bill of Rights). Examples of such legislation included the New Zealand Public Health and Disability Amendment Act 2013 (NZPHDAA), which prevents government policies on payment for health and disability support services to certain family members being challenged on discrimination grounds, the Taxation (Tax Administration and Remedial Matters) Act 2011 and the Canterbury Earthquake Response and Recovery Act 2010.

Other concerns included the removal of a party’s right to be legally represented at stages of Family Court processes, envisaged by the Family Court Proceedings Reform Bill 2012 (now enacted).

In addition, the Law Society raised concerns about how the urgency procedures have been used to pass certain legislation. Again, the NZPHDAA was a case in point. It was enacted in one sitting day despite a negative report under s7 of the Bill of Rights, and despite New Zealand’s obligation under the International Covenant on Civil and Political Rights to respect and ensure the right to freedom from discrimination. The Law Society noted that no reasons were given for the use of urgency.

On a more general note, referring to recent empirical research, the Law Society stated that recommendations by UN human rights institutions have very limited influence on New Zealand policy and law-making. The limited visibility and impact of international human rights obligations here was also noted.

On 22 August 2013, a draft version of New Zealand’s national UPR report was released by the Ministry of Foreign Affairs and Trade for consultation: www.mfat.govt.nz/Foreign-Relations/1-Global-Issues/Human-Rights/Universal-Periodic-Review/index.php.

The draft report stated that New Zealand “gives effect to international human rights obligations by general and specific legislation and by government policies and practices”, and that these obligations should all be “appropriately implemented domestically”. Among other matters, the draft report referred to s7 of the Bill of Rights as one of various mechanisms “for the protection of fundamental human rights”. It also stated that the Government was “committed to finding ways to overcome” human rights challenges identified by civil society and others.

There was, however, no reference in the draft report to any of the Law Society’s concerns summarised above. In its comments on the draft report (www.lawsociety.org.nz/__data/assets/pdf_file/0006/71862/Universal-Periodic-Review,-draft-National-UPR-report-19-9-13.pdf), provided on 19 September 2013, the Law Society expressed disappointment about this.

The Law Society recommended that the Government revise the draft report so the issues identified were acknowledged and addressed.

New Zealand’s final report was submitted to the UN Human Rights Council on 4 November 2013: www.mfat.govt.nz/downloads/humanrights/New%20Zealand%20UPR%20national%20report%20-%20submitted%20version%20%283%29.pdf.

Its opening paragraphs quite properly referred to New Zealand’s proud human rights tradition “at home and overseas”, and welcomed the opportunity provided by the UPR “to take stock of New Zealand’s progress in protecting and promoting human rights”. It was also stated that “the Government recognises where there are ongoing challenges and works to address these.”

Disappointingly, the Law Society’s concerns were not addressed in the final report. For example, no reference was made to the enactment of Bill of Rights-inconsistent legislation, to the issues with the reporting mechanism, nor to any of the Law Society’s rule of law concerns.

Nothing was said in the section of the report on the rights of people with disabilities about the NZPHDAA, and its prevention of the class of discrimination challenges referred to above, albeit that the report did note that a new scheme had been put in place to allow some family members to be paid for their care in certain circumstances.

The final report closed by stating that “international experts have consistently referred to New Zealand’s very high level of human rights protection overall”, but that the Government recognised “that significant ongoing challenges remain and further improvement is necessary.” It is not clear whether that means the Government recognises the issues the Law Society has raised are significant and require attention, or whether their omission from the final report means the Government considers they are unimportant.

The UPR exercise is an interesting one. In comparison to many states, as New Zealanders we enjoy an enviable human rights environment. But as the Government has acknowledged at the previous UPR in 2009, there is room for improvement.

Part of the means by which that improvement can occur is through the quality of the process of talking about human rights issues. While the Government is, of course, entitled to disagree with the Law Society’s views, recognising those views, engaging with them, and setting out the Government’s position on them would improve the quality of the domestic and international conversation.

Because that did not occur here, the process has been unsatisfactory from the Law Society’s perspective. Also, as a result the national report does not advise the international community of what are significant human rights issues in the New Zealand context.

We hope, however, that the Law Society’s shadow report will provide information which will help inform the exchanges between New Zealand and the UN Human Rights Council. If it does then the Law Society will have contributed to enhancing both domestic and international human rights dialogue.

Dr Andrew Butler is the convenor of the New Zealand Law Society’s Human Rights and Privacy Committee. Joss Opie and Peter Barnett are members of the committee.

Last updated on the 17th March 2016