New Zealand Human Rights 2017 Report April 2018
New Zealand is a parliamentary democracy. Citizens chose their representatives in a free and fair multiparty election held most recently on September 23. The Labour Party formed a coalition government with the New Zealand First Party, with Green Party support. Labour Party leader Jacinda Ardern serves as prime minister. The new government signaled its intention to review priorities in a number of human rights-related areas, ranging from refugee admissions to prison conditions.
Civilian authorities maintained effective control over the security forces.
The most significant human rights issue was forced labor among foreign migrant workers.
The government has effective mechanisms for prosecuting officials who commit human rights abuses; there were no reports of such abuses during the year.
A. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were no reports that the government or its agents committed arbitrary or unlawful killings.
There were no reports of disappearances by or on behalf of government authorities.
C. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices, and there were no reports government officials employed them. The Ombudsman’s Office inspects places of detention such as prisons and mental health facilities to prevent cruel and inhuman treatment, in line with national standards and the country’s international obligations.
Prison and Detention Center Conditions
Civil society and government watchdog groups highlighted the disproportionate rates of incarceration of indigenous peoples, excessive restraint and other treatment of prisoners who risked self harm, and prisoner-on-prisoner violence (see section 6, Indigenous People).
Physical Conditions: Persons accused of a crime who are 17 years or older are tried as adults and, if convicted, sent to adult prisons. Authorities held male prisoners younger than 17 years in four separate detention facilities operated by the national Child and Youth Welfare Agency. There was no separate facility for juvenile female prisoners because there were very few such prisoners. In March the Ombudsman’s Office reported that the Department of Corrections had breached national legislation and the Convention Against Torture in restraining at risk prisoners by excessive use of tie-down beds and waist cuffs. As a result, the Department of Corrections is undertaking a review of its At Risk Prisoner program.
Transgender prisoners who had the gender on their birth certificates changed to reflect their preferred gender were generally housed in accordance with their preferred gender and may begin gender reassignment treatment/surgery while incarcerated.
Administration: Inmates could make uncensored complaints to statutory inspectors or the ombudsperson. The Ombudsman’s Office reports to parliament annually on its findings about prison conditions. The law provides for specified rights of inspection, including by members of parliament and justices of the peace, and information was publicly available on complaints and investigations, subject to the provisions of privacy legislation.
Independent Monitoring: The government permitted monitoring visits by independent human rights observers.
D. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, and provides for the right of any person to challenge the lawfulness of his/her arrest or detention in court, and the government generally observed these requirements.
ROLE OF THE POLICE AND SECURITY APPARATUS
The New Zealand Police, under the Ministry of Police, is responsible for internal security, and the armed forces, under the Ministry of Defense, are responsible for external security. Civilian authorities maintained effective control over police and the armed forces, and the government has effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year.
ARREST PROCEDURES AND TREATMENT OF DETAINEES
Police may arrest a suspect without a warrant if there is reasonable cause; however, a court-issued warrant is usually required. Police officers may enter premises without a warrant to arrest a person if they reasonably suspect the person committed a crime on the premises or found the person committing an offense and are in pursuit. Police must inform arrested persons immediately of their legal rights and the grounds for their arrest.
After arresting and charging a suspect, police may release the person on bail until the first court appearance. Except for more serious offenses, such as assault or burglary, bail is normally granted and frequently does not require a deposit of money. Suspects have the right to appear promptly before a judge for a determination of the legality of the arrest and detention. After the first court appearance, the judge typically grants bail unless there is a significant risk the suspect would flee, tamper with witnesses or evidence, or commit a crime while on bail. Authorities granted family members timely access to detainees and allowed detainees prompt access to a lawyer of their choice and, if indigent, to a lawyer provided by the government. The government did not detain suspects incommunicado.
Pretrial Detention: Approximately 25 percent of prisoners were held in custody on remand, while they await trial or sentencing. The number of prisoners held on remand increased three-fold in 20 years, primarily due to increased time required to complete cases, and stricter bail restrictions. The median duration of prisoners’ time held in remand is approximately two months.
Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Arrested persons have additional legal protections, including the right to initiate habeas corpus proceedings to decide the lawfulness of their detention, to be charged and tried without “undue delay,” and to obtain compensation if unlawfully detained.
E. Denial of Fair Public Trial
The law provides for an independent judiciary, and the government generally respected judicial independence and impartiality.
The law provides for the right to a fair public trial, and an independent judiciary generally enforced this right. Defendants enjoy a presumption of innocence and the right to counsel. By law authorities must inform defendants promptly and in detail of the charges, and provide adequate time and facilities to prepare a defense. Defendants cannot be compelled to testify or confess guilt, but they have the right to be present at their trial. Defendants also have the right to present witnesses and evidence, confront witnesses against them, appeal convictions, and receive free interpretation as necessary from the moment charged through all appeals. The government provides a lawyer at public expense if the defendant cannot afford counsel. The law extends these rights to all defendants.
POLITICAL PRISONERS AND DETAINEES
There were no reports of political prisoners or detainees.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
Individuals and organizations may seek civil judicial remedies for human rights violations, including access to the Human Rights Review Tribunal. There are also administrative remedies for alleged wrongs through the Human Rights Commission (HRC) and the Office of Human Rights Proceedings.
F. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and there were no reports the government failed to respect these prohibitions.
A. Freedom of Expression, Including for the Press
The law provides for freedom of expression, including for the press, and the government generally respected these rights. An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for the press.
The government did not restrict or disrupt access to the internet or censor online content, and there were no credible reports the government monitored private online communications without appropriate legal authority. The internet was widely available and used.
ACADEMIC FREEDOM AND CULTURAL EVENTS
There were no government restrictions on academic freedom or cultural events.
B. Freedoms of Peaceful Assembly and Association
The law provides for freedoms of peaceful assembly and association, and the government generally respected these rights.
D. Freedom of Movement
The law provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights. The government cooperated with the Office of the United Nations High Commissioner for Refugees and other humanitarian organizations in providing protection and assistance to refugees, asylum seekers, stateless persons, and other persons of concern.
PROTECTION OF REFUGEES
Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees.
Durable Solutions: The country’s refugee policy commits the government to resettling 750 refugees annually, and the government has consistently met or exceeded that number. In 2015 the government committed to resettling an additional 750 Syrian refugees over the following two and one-half years, increasing refugee intake to approximately 1,000 during the year. In October the government started a pilot Community Organization Refugee Sponsorship category, covering an additional 25 refugees.
Temporary Protection: The government also provided temporary protection to individuals who may not qualify as refugees under the country’s UN quota commitment. In September advocacy groups reported concern that approximately 100 annual asylum seekers did not receive the same level of governmental support as quota refugees, specifically with access to employment.
The law provides citizens the ability to choose their government through free and fair periodic elections held by secret ballot and based on universal and equal suffrage.
Elections and Political Participation
Recent Elections: Following the most recent general election held on September 23, the former opposition Labour Party formed a coalition government with the New Zealand First Party, with Green Party support, led by Labour Party leader Jacinda Ardern as prime minister. Although the ruling National Party won the greatest number of seats in parliament, 58 of 120, it was unable to form a coalition and became the official parliamentary opposition.
Participation of Women and Minorities: No laws limit participation of women or minorities in the political process, and they did participate.
Voter turnout in the general election was 79 percent, while turnout in designated Maori electorates was lower and ranged from 60-69 percent. In South Auckland electorates with a high percentage of Pacific Island voters, turnout was 69 percent.
The law provides criminal penalties for official corruption, and the government generally implemented these laws effectively. There were no reports of government corruption during the year. The Serious Fraud Office and police investigate corruption matters. Allegations can be reported anonymously and the law protects employees who make a report relating to their employers. Agencies such as the Office of the Controller, the Auditor-General, and the Office of the Ombudsman independently report on and investigate state sector activities, acting as watchdogs for public sector corruption. In July the Auditor-General resigned after a parliamentary report revealed that, during his tenure as chief executive of a government ministry, a former subordinate had committed fraud and mistreated whistleblowers.
Financial Disclosure: The law requires members of parliament, including all ministers, to submit an annual report of financial interests, including income and assets, which the government releases to the public. There were no reports of criminal or administrative sanctions against elected officials for noncompliance to financial regulations. Career civil servants are not subject to this requirement but are subject to ethics standards established by the State Services Commission.
A number of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were generally cooperative and responsive to their views.
Government Human Rights Bodies: The Ministry of Justice funded the HRC, which operates as an independent agency without government interference. The HRC had adequate staff and resources to perform its mission. The public considered the HRC effective, and it enjoyed high public confidence.
The Office of the Ombudsman, responsible to parliament but independent of the government, is charged with investigating complaints about administrative acts, decisions, recommendations, and omissions of national and local government agencies; inspecting prisons; and following up on prisoner complaints. The office enjoyed government cooperation, operated without government or party interference, had adequate resources, and was considered effective. The office produced a wide variety of reports for the government that were publicly available on its website.
Rape and Domestic Violence: According to a 2016 government report, one in three women reported having experienced physical and/or sexual intimate partner violence in their lifetime. The law criminalizes rape, including spousal rape. The maximum penalty is 20 years’ imprisonment; however, indefinite detention may occur in cases where the parole board, during its annual review, believes the prisoner poses a continuing threat to society.
Domestic violence is a criminal offense under the law. Police were responsive to reported domestic violence incidents. The government partially funded women’s shelters, psychosocial services, rape crisis centers, sexual abuse counseling, family-violence victim support networks, and violence prevention services. In September 2016 the government announced it would allocate NZ$130 million ($95 million) to support victims and prevent sexual violence. The package of measures includes more than 60 new police officers, tougher penalties for breaching protection orders, and “family violence” being marked on offenders’ records for life. Victims’ programs include a new crisis response scheme for victims in the 72 hours after a sexual assault; programs to reduce harmful sexual behavior, offending, and reoffending; programs focusing on adults who pose a risk to children; and services for male survivors of sexual abuse.
Sexual Harassment: The law prohibits sexual harassment and provides civil penalties. Sexual contact induced by certain threats may also fall under the criminal code, with a maximum 14-year prison sentence. The HRC published fact sheets on sexual harassment and made sexual harassment prevention training available to schools, businesses, and government departments on a regular basis.
Coercion in Population Control: There were no reports of coerced abortion, involuntary sterilization, or other coercive population control methods. Estimates on maternal mortality and contraceptive prevalence are available at: www.who.int/reproductivehealth/publications/monitoring/maternal-mortality-2015/en/.
Discrimination: The law provides for the same legal status and rights for women as for men, including under family, religious, personal status, labor, property, nationality, and inheritance laws. The law prohibits discrimination in employment and rates of pay for equal or similar work.
Birth Registration: Children born in the country attain citizenship if either parent is a citizen or legal permanent resident of the country. Children born outside the country attain citizenship if either parent is a citizen born in the country. The law requires notification of births by both parents as soon as “reasonably practicable,” deemed as being within two months of the child’s birth, and most births were registered within this period.
Child Abuse: The number of substantiated cases of child abuse and neglect decreased by 10 percent from July 2016 to June. A disproportionately high number of reported cases of child abuse (more than 50 percent) involved Maori children. The government promoted information sharing between the courts and health and child-protection agencies to identify children at risk of abuse.
Early and Forced Marriage: The legal minimum age for marriage is 20 for both men and women, but persons between 16 and 19 years of age may marry with parental permission. Marriages involving persons younger than 18 years were rare.
Sexual Exploitation of Children: The law provides that any person who has a sexual connection with a person younger than 16 years is liable to a maximum prison sentence of 10 years. Further, the law makes it an offense punishable by seven years’ imprisonment to assist a person younger than 18 years in providing commercial sexual services; to receive earnings from commercial sexual services provided by a person younger than 18; or to contract for commercial sexual services from, or be a client of, a person younger than 18 years. The law also makes it an offense to traffic in persons younger than 18 years for sexual exploitation or for forced labor. The country’s courts may prosecute citizens who commit child sex offenses overseas.
Commercial sexual exploitation of children remained a concern; however, no recent data was available on its prevalence.
The law prohibits child pornography and provides for individual and corporate fines if a person produces, imports, supplies, distributes, possesses for supply, displays, or exhibits an objectionable publication. Penalties increase to a maximum of 10 years’ imprisonment or a substantially greater fine if such an act is committed with knowledge that the publication is objectionable. Simple possession of objectionable material is punishable by fines, while knowingly possessing objectionable material is punishable by a maximum of five years’ imprisonment and a larger fine. Knowingly making, trading, distributing, or displaying objectionable material can receive a maximum of 14 years’ imprisonment. In addition, a body corporate can be fined up to NZ$200,000 ($137,000). The Department of Internal Affairs Censorship Compliance Unit actively policed images of child sex abuse on the internet and prosecuted offenders.
International Child Abductions: The country is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/childabduction/en/legal/compliance.html.
The Jewish community numbered approximately 7,000, according to the 2013 census. Anti-Semitic incidents were rare.
Persons with Disabilities
The law prohibits discrimination against persons with disabilities. The law prohibits the government from discriminating based on physical, sensory, intellectual, or mental disability, unless such discrimination can be “demonstrably justified.” The government effectively enforced applicable laws. Most school-age children with disabilities attended school.
Approximately 20 percent of eligible voters had a disability and faced obstacles to exercising their electoral right. The Electoral Commission has a statutory obligation to administer the electoral system impartially and seeks to reduce barriers to participation by developing processes that enable citizens with disabilities to fully-access electoral services.
The government’s Office for Disability Issues worked to protect and promote the rights of persons with disabilities. In addition, both the HRC and the Mental Health Commission continued to address mental disabilities in their antidiscrimination efforts.
Pacific Islanders, who comprised 7.4 percent of the population, experienced some societal discrimination and had the highest rates of unemployment (13.1 percent) and lowest labor-force participation (61 percent), compared to the rest of the population. Asians comprised 12 percent of the population and reported some societal discrimination.
The Ministry for Pacific Peoples had programs to identify gaps in delivery of government services to Pacific Islanders and to promote their education, employment, entrepreneurship, culture, languages, and identity. The Office of Ethnic Affairs within the Department of Internal Affairs focused on improving dialogue and understanding about minority communities among the wider population.
Approximately 16 percent of the population claim descent from the indigenous Maori. The government bestows specific recognition and rights, enshrined in law, custom, and practice, to the indigenous Maori population.
Between July 2016 and June, the government enacted legislation that settled five claims by indigenous groups (“iwi”) relating to the 1840 Treaty of Waitangi, the country’s founding document. The government continued active negotiations with almost all iwi who were in various stages of the claims process.
The law prohibits discrimination against the indigenous population, but there were disproportionately high numbers of Maori on unemployment and welfare rolls, in prison, among school dropouts, with elevated infant mortality statistics, and among single-parent households.
Although Maori represented 16 percent of the country’s population, they comprised 50.4 percent of the prison population and 45.5 percent of persons serving community-based sentences. The government, along with Maori community partners and nongovernmental organizations (NGOs), continued to implement programs and services to reduce Maori recidivism and overrepresentation in the criminal justice system.
Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity
The law does not criminalize consensual same-sex sexual conduct between adults. The law prohibits abuse, discrimination, and acts of violence based on sexual orientation and gender identity, and the government generally enforced the law. From July 2016 to June, approximately three percent of discrimination complaints received by the HRC related to gender identity or sexual orientation.
A. Freedom of Association and the Right to Collective Bargaining
The law provides for the right of workers to form and join independent unions of their choice without previous authorization or excessive requirements, to bargain collectively, and to conduct legal strikes, with some restrictions. The law prohibits antiunion discrimination. While it does not require reinstatement of workers dismissed for union activity, the courts may order this at their discretion.
Police have the right to freedom of association and the right to organize and bargain collectively, but sworn police officers (including all uniformed and plainclothes police but excluding clerical and support staff) do not have the right to strike or take any form of industrial action.
Contractors cannot join unions, bargain collectively, or conduct strike action.
Workers may strike while negotiating the right to a collective bargaining agreement or over matters of health and safety. Strikes by providers of key services are subject to certain procedural requirements, including mandatory notice of three to 28 days, depending on the service involved. Key services include production, processing, and supply of petroleum products; production and supply of electricity, water, and sewer services; emergency fire brigade and police services; ambulance and hospital services; manufacturing of certain pharmaceuticals and dialysis solutions; operation of residential welfare or penal institutions; airport and seaport operations; dairy production operations; and animal slaughtering, processing, and related inspection services. The inclusion of some of these sectors was broader than international standards on the definition of “essential services.”
To bargain collectively, unions must be registered, independent, governed by democratic rules, and have at least 15 members. Unions may not bargain collectively on social or political issues.
The government respected these rights and effectively enforced applicable laws without lengthy delays. The law administers penalties for violations of freedom of association or collective bargaining protections and includes fines sufficient to deter violations. Cases were occasionally referred to the Civil Employment Court.
Nearly all unionized workers were members of unions affiliated with the New Zealand Council of Trade Unions (NZCTU), an independent federation that included unions representing various trades and locations. A few small, nonaffiliated unions also existed.
B. Prohibition of Forced or Compulsory Labor
The law prohibits and criminalizes all forms of forced labor. The government’s efforts to enforce the law were not always effective. Penalties were not sufficiently stringent to deter violations because of the possibility that a fine can be imposed in lieu of imprisonment. Fines can also be imposed for labor violations that may be indicators of forced labor such as underpayment of wages and excessively long working hours.
Foreign migrant workers, including in agriculture, horticulture, viticulture, construction, hospitality, and as domestic workers were vulnerable to forced labor. Some foreign migrant workers were charged excessive and escalating recruitment fees, experienced unjustified salary deductions, non- or underpayment of wages, excessively long working hours, and restrictions on their movement. Some had their passports confiscated and contracts altered. Foreign migrant workers, primarily men, aboard foreign-flagged fishing vessels in the country’s economic waters were subjected to forced labor, and in response, the government passed legislation enabling it to address that problem more effectively. Recruitment agencies based within the country that recruit workers from abroad must utilize a licensed immigration adviser. The government expanded partnerships with foreign governments to better monitor and regulate the recruitment of foreign migrant workers. The aim of these partnerships was to reduce the risk of exploitation by providing greater transparency in recruitment and compliance to employment and immigration requirements.
The government continued to pursue convictions under its trafficking law, including cases of forced labor, after an inaugural prosecution in 2015 and conviction in 2016.
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
C. Prohibition of Child Labor and Minimum Age for Employment
By law children younger than 16 years may not work between the hours of 10 p.m. and 6 a.m. The law also states that children enrolled in school may not work, even outside school hours, if such employment would interfere with their education. The law bans the employment of children younger than 15 years in hazardous industries such as manufacturing, mining, and forestry.
Inspectors from WorkSafe New Zealand, an independent crown agent with its own governance board created to reform the workplace health and safety system, effectively enforced these laws. The law outlines prison sentencing guidelines and fines for the most serious offenses. Penalties were adequate to deter violations.
Children from ages 16 to 18 years worked in some hazardous industries and occupations, such as the agricultural sector. The law requires them to be fully trained. Children younger than 15 years cannot drive a tractor or large vehicle, except children working in agriculture if they are older than 12 years and are fully trained or are being trained, or they live on the property. Concerns remained about the commercial sexual exploitation of children (see section 6, Children).
Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ for information on the self-governing territories of New Zealand--Cook Islands and Niue--as well as the dependent territory, Tokelau.
D. Discrimination with Respect to Employment and Occupation
The law prohibits discrimination based on race, color, sex, religion, political opinion, national origin or citizenship, social origin, disability, sexual orientation, and/or gender identity, age, language, HIV-positive status, or other communicable diseases. The government effectively enforced these prohibitions.
The HRC had an equal opportunity employment team that focused on workplace gender-related problems. This team regularly surveyed pay scales, conducted a census of women in leadership roles, and engaged public and private employers to promote compensation equality. The Office of Ethnic Affairs continued to take measures to promote ethnic diversity in occupation and employment.
According to the NZCTU, Maori and Pacific Island people remained disadvantaged compared to the general population in terms of unemployment and wages.
E. Acceptable Conditions of Work
The minimum hourly wage was NZ$15.75 ($11.45). The “training minimum wage” and the “starting-out” wage for 16- to 19-year-old workers and new workers 20 years or older was NZ$12.60 ($9.16). There was no official poverty-level income figure, but researchers frequently used 60 percent of the median household income, NZ$57,300 ($41,700), as the unofficial poverty-level marker.
The law provides that work hours should be set in collective or individual agreements between employers and employees. Although a 40-hour workweek is traditional, employer and employee parties may contractually agree to a workweek of more than 40 hours.
Extensive laws and regulations govern health and safety issues. Employers are obliged to provide a safe and healthy work environment, and employees are responsible for their own safety and health, as well as ensuring that their actions do not harm others. The government mandates employers to provide health insurance for their seasonal workers. The law allows workers to refuse to perform work likely to cause serious harm and permits legal recourse if they believed an employer penalized them as a result.
The government proactively investigated labor conditions and in cases of noncompliance with labor law inspectors levied fines, required restitution of wages to workers, and revoked licenses of offenders.
The Ministry of Business, Innovation, and Employment enforces laws governing working conditions, including wages and hours, and occupational health and safety, the latter of which WorkSafe New Zealand is responsible for under the law. The department’s inspectors effectively enforced safety and health rules in all sectors including the informal economy, and they have the power to shut down equipment if necessary. The department normally investigated reports of unsafe or unhealthy working conditions within 24 hours of notification. Convictions for violations of the occupational health and safety law and the wages and hours law carry either monetary penalties or imprisonment. The law stipulates penalties for employers who exploit migrant workers, including imprisonment, a fine, and deportation for noncitizen residents.
In 2016 the country saw 59 workplace-related fatalities. Agriculture is the country’s most dangerous sector, with 20 persons killed while engaged in agricultural work. The majority of workplace assessments carried out by WorkSafe New Zealand’s health and safety inspectors in 2016 targeted high-risk industries such as agriculture, forestry, construction, and manufacturing. WorkSafe New Zealand reported that 75 percent of surveyed employers had changed their workplace practices following its inspections. During 2016 WorkSafe New Zealand initiated 98 prosecutions following those inspections, and 91 percent of those prosecutions were successful.
New Zealand and the United Nations
On 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. This declaration set out 30 articles or statements about human rights and freedoms. In 1950 the assembly passed a resolution inviting all states and interested organisations to adopt 10 December as Human Rights Day.
The Universal Declaration of Human Rights
In broad terms the declaration states that:
- All human beings are born free and equal in dignity and rights.
- Everyone has the right to life, freedom and safety from harm.
- No one shall be a slave or suffer torture.
- Everyone shall have equal recognition and protection under law and the right to a fair and public trial.
- Everyone is entitled to freely hold and express his or her own beliefs and opinions.
- Everyone has the right to participate in the political and cultural life of society and to take part in the fair and democratic government of his or her country.
- Men and women of full age have the right to marry and found a family but only with the free and full consent of both partners.
- Marriage, motherhood and all children are entitled to protection by society.
- Everyone is entitled to an adequate standard of living, to education, to work for a fair wage and to own property.
To protect and promote all human rights around the world, the UN established The Office of the United Nations High Commissioner for Human Rights (OHCHR).
New Zealand has made a commitment to support the work of OHCHR and other key UN organisations in upholding the declaration. It has participated actively in human rights deliberations at the UN General Assembly and in the annual session of the UN Commission on Human Rights (CHR). In particular, New Zealand has promoted the rights of women, children and indigenous people. New Zealand's human rights policy has always had a strong multilateral focus, working through the UN system. This reflects the reality that the most effective way for a small country like New Zealand to advance the cause of human rights is to work with like-minded countries.
The Human Rights Commission Te Kahui Tika Tangata plays a key role in upholding human rights in this country. The Commission's vision is that New Zealanders should know their rights, acknowledge their responsibilities and respect the rights of others. The Human Rights Act 1993 sets out the Commission's functions.
The road to decriminalisation
Tim Barnett and Catherine Healy know more than anyone about the battle for decriminalisation, and I base this article on interviews I conducted with both of them earlier this year. Barnett, a former MP and the current general secretary of the Labour Party, became involved with the PRA shortly after he won his first campaign for Christchurch Central’s parliamentary seat in 1996. He did so on the request of Catherine Healy, the national coordinator of the New Zealand Prostitutes Collective (NZPC), who actively sought out his support for decriminalisation after the election. Founded in 1987 as part of a national strategy to combat HIV/AIDS, the NZPC is a government-funded body working to advance the health, education, and rights of sex workers. He agreed.
Barnett entered into an already vibrant political field. The Massage Parlours Act of 1978 was, nearly a decade after its implementation, suddenly causing controversy because police had announced that the legislation effectively allowed indoor commercial sex work. As a result, a working group comprised of NZPC and mainstream liberal feminist groups—such as the National Council of Women of New Zealand (NCWNZ) and the National Collective of Independent Women’s Refuges—began work on a pro-decriminalisation reform bill. Barnett took that draft bill to his party, which backed it as a conscience vote. Then, shortly after the 1999 election, he found himself in a position to bring the bill to parliament. It passed on first reading by 87 to 21 votes.
A committee heard 222 submissions of input over the next two years, of which 56 could be considered feminist. Forty of these submissions, which came from groups as diverse as NZPC, the New Zealand Federation of Business and Professional Women, the Young Women’s Christian Association, and the AIDS Foundation supported decriminalisation. The other sixteen, which came from CATW international, CATW NZ’s Ruth Margerison, and anti-abortion advocate Marilyn Prior, among others, supported the Swedish model. The committee ultimately reported in favour of decriminalisation, and the bill passed its second reading by a narrow margin of eight votes in 2002.
In 2003 New Zealand was governed by a more conservative parliament and the bill generated intense opposition from evangelical Christians. “You could write a whole book about the last week of people changing their minds for and against”, said Barnett. There was, however, broad public support from the Family Planning Association, the public health sector, and the gay community for decriminalisation. At the third and final reading, the PRA passed by 60 votes to 59 with one abstention.
Barnett believes that support came from a number of motivations, “It was taking the weight of the state off of people’s shoulders, which appealed to libertarians,” he explained. “At the same time, it was promoting equity of women and the great majority of sex workers are women, and it diverts police resources to where they can more usefully be used”.
Human rights are the rights and freedoms every person should enjoy, such as protection from cruelty or discrimination, and access to health care and education. However, there is no universally agreed list of human rights.
Human rights in English history
Human-rights documents in English history include the Magna Carta of 1215, which listed barons’ grievances against King John and the rights they thought they should have. The Bill of Rights of 1688 established Parliament (rather than the monarch) as the supreme authority for making laws. This is seen as a protection for human rights.
Human rights and Parliament
Some countries have written constitutions or bills of rights, which include statements of human rights and freedoms, and limit the powers of the government. Laws that conflict with the constitution can be declared invalid. However, in New Zealand (as in Britain), Parliament is the supreme law-making body.
In 1985 the Labour government proposed introducing a Bill of Rights, which would override laws inconsistent with human rights. However, due to public concern the 1985 bill did not proceed. The Bill of Rights Act 1990 is an ordinary law – not a supreme law. It includes a number of rights, among them the right not to be deprived of life and the right to freedom of thought, conscience and religion.
Freedom from discrimination
The Human Rights Act 1993 protects people from discrimination on the grounds of gender, marital status, religion, ethnicity and nationality (all of which were in earlier legislation), as well as sexual orientation, family status and disability.
The Human Rights Commission educates people about human rights and deals with complaints about discrimination.
New Zealand is a party to seven of the nine United Nations core human-rights treaties – meaning that New Zealand agrees to recognise these rights in its laws, and report to the UN on them. Human rights in the treaties include civil and political rights, the elimination of racial discrimination and discrimination against women, the rights of children and people with disabilities, and eliminating torture.
International human-rights treaties
International human-rights law
The Universal Declaration of Human Rights (1948) was not a binding international treaty. It was followed by a series of more detailed United Nations human-rights treaties, designed to be binding upon states who sign up to them. New Zealand is a party to seven of the nine core international human-rights treaties. These treaties operate at the international level and are not themselves a part of New Zealand law. The idea is that, by entering into these treaties, New Zealand agrees to ensure that the various rights will be recognised within law and made enforceable for the benefit of persons in New Zealand.
The UN human-rights treaties are typically monitored by periodic reporting to the UN. The Ministry of Foreign Affairs and Trade periodically prepares a report on New Zealand’s progress in implementing a treaty. NGOs and others are permitted to make ‘shadow reports’ (alternative reports prepared by non-government bodies).
Good, but could do better
New Zealand has consistently received high rankings on its human-rights record from monitoring agencies such as the UN Human Rights Committee, Amnesty International and Freedom House. The country is acknowledged as a world leader in human rights. Monitoring agencies have, however, expressed concerns over such issues as the police use of tasers, the high rate of Māori imprisonment, the level of violence against women and children, and aspects of New Zealand’s immigration policies.
Some treaties have optional protocols, which, if a state adopts them, allow individuals within that state to bring a complaint against it to the treaty monitoring body. New Zealand has adopted the individual complaints procedure for the International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
New Zealand’s international commitments
The UN human-rights treaties to which New Zealand is a party are the:
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- Convention on the Rights of the Child (CRC)
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- Convention on the Rights of Persons with Disabilities (CRPD).
The two UN human-rights treaties to which New Zealand is not a party are the:
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
- International Convention for the Protection of All Persons from Enforced Disappearance (CPED).
In addition to government actions, groups of New Zealand citizens have for many years been concerned over international human-rights issues. Religious groups, trade unions, aid agencies and activist organisations have all protested at different times over breaches of human rights around the world.
Is New Zealand racist as .
Those Facebook reminders. Normally they pop up and tell you about a birthday or a holiday or some other pleasant event from the past. Remember when? The weather was great and everyone looked so happy.
Juliet Moses had quite a different one recently. She got a notification from five years ago that revealed a photo taken during the lead-up to the 2014 general election. On a defaced National Party election hoarding, former Prime Minister John Key was given a Hasidic Jewish hat, beard and sidelocks by someone with spray paint. His election slogan, "Working for New Zealand", was transformed into "Lying Jew C--------r".
It was an overheated election campaign, to be sure. But there was more going on than the targeting of a Prime Minister with some anti-Semitic tropes and insults that most people simply shrugged at. "Five years ago was, for many in the Jewish community, a real turning point," Moses says. "The scab had been ripped off."
Moses, an Auckland lawyer, is the spokesperson for the New Zealand Jewish Council, which looks after the interests of the Jewish community in New Zealand. Thinking back to 2014, she remembers there were loud criticisms of Israel's military actions in Gaza.
But as is often the case, criticism of the state of Israel seemed to slide easily into anti-Jewish sentiment. She remembers a rally down Queen St in Auckland where a swastika was added to the Israeli flag, a sign said "make Israel history" and a man shouted "Bash the Jews! Cut their f---ing heads off!"
Yes, Moses believes in free speech and the right to protest but that crossed the line into something much nastier and more threatening. The Jewish Council wrote to the human rights commissioner and the race relations commissioner, and there were separate complaints to police. The culprit was identified and Moses understands there were discussions about charging him with offensive behaviour, but six months passed and he was given a warning.
To be fair to the police, they have been more supportive and responsive since, Moses says. But overall, the response to the threat and the wider indifference about such abuse fits a long-term pattern in New Zealand.
"We haven't had a bad working relationship with the authorities, but I feel there has been a level of complacency or naivety."
Have you experienced racism or witnessed it? Fill in our discrimination survey here.
THE COMPLACENT COUNTRY
Does that sound familiar? Once you start talking about racism in New Zealand before and after March 15, when 51 Muslims were killed in attacks on two mosques in Christchurch, you start encountering words like these. Complacency. Naivety. An apathetic sense that these things happened elsewhere. And for a long time, they did.
There are two schools of thought about racism in New Zealand and whether it contributed at all to the events of March 15. On one hand, there was a rush to judge. An assessment was made that as Christchurch had long been the semi-mythical hotbed of white supremacy in New Zealand, an attack like this was an almost inevitable end result.
On the other hand, it was clear that the alleged gunman was an Australian based in Dunedin who picked Christchurch because it was an easy target. It really could have happened anywhere, and since March 15 it has, with similarly motivated shooters operating in El Paso, Texas Poway, California and Baerum, Norway. These lone wolves often inspire and copy each other. Their true geography is online.
But these two views do not contradict each other. They can both be true. The Christchurch shooting is an anomaly in our recent history that has also forced us to confront the very real possibility that we have not paid enough attention to the insults and threats directed at minorities – New Zealand's Jewish and Muslim communities in particular.
In 2017, the Human Rights Commission, the Jewish Council and Multicultural New Zealand all called for the government to collect data on the incidence of hate crimes. This followed a request from a decade earlier, when the United Nations Committee on the Elimination of Racial Discrimination called for the Government to collect statistical data on complaints, prosecutions and sentences for racially motivated crimes.
"We understand that the Police have the capacity (crime categories) to record complaints of racially motivated violence and abuse and it's just a matter of implementing the system," Multicultural New Zealand's Executive Director Tayo Agunlejika said in a media statement in 2017."We appreciate the fact that collecting the data will not solve the problem of racially and other hate motivated crime, but it will provide a tool to measure its extent and to take action to reduce it."
That call came a little over a week after Mehpara Khan posted video of a shocking racist tirade she encountered in Huntly. "I don't care if you were born here, you don't have the right to be here!" a woman shouted, as she threw beer cans at her.
"Who said Islamophobia doesn't exist?" Khan asked.
Some people still seemed to, though. The Human Rights Commission has been adamant since 2004 that New Zealand police needed to collect hate crime data. In 2009, the Government agreed with the recommendation but said it was not a priority. A decade later, Chief Commissioner Paul Hunt says that "until we have got this data, it's really difficult to devise suitable strategies to deal with the phenomenon". In the absence of that data collection, the commission released what Hunt calls "a modest contribution", a report titled It Happened Here.
He wants the contribution "to remind New Zealanders that March 15 has to be seen in the context of years of hate crime, going back generations. Māori have experienced this for centuries and we need to recognise that".
Between the end of Dame Susan Devoy's tenure in 2018 and Meng Foon's start in August, Hunt was also acting race relations commissioner. His determination to embed the March 15 event into a New Zealand pattern has seen him roasted by some on the right of politics who prefer the view that the mosque attacks were anomalous.
"The way I see it is that, if you look across the world, there is a global movement which is neo-fascist, racist and white supremacist," Hunt says. "New Zealand is not isolated from global movements."
Hunt first came to New Zealand in the 1990s and remembered that Massey University academic Paul Spoonley was talking and writing then about white supremacy, having diagnosed the issue a decade earlier in his book The Politics of Nostalgia. But after 2001, New Zealand, like much of the west, was focused on terrorism being middle-eastern rather than white.
Hunt's belief is that the work of Spoonley and others who have tracked white supremacy shows we cannot call March 15 "an imported aberration". He recalls being at a meeting with Christchurch Mayor Lianne Dalziel a few weeks after the attack and being impressed by her view that we cannot simply blame a lone wolf Australian. Instead, he paraphrases, "there was something deeper in New Zealand which we have to confront".
Data on racism in New Zealand, as experienced by minorities rather than perceived by the wider population, is sporadic and hard to locate. A Ministry for Business, Innovation and Employment survey in 2018 of nearly 400 recent migrants to New Zealand found that 44 per cent had experienced unfair or biased behaviour once or twice, and 12 per cent had experienced it frequently. Some gave examples of discriminatory comments made on the streets or in shops and worried about the bullying of their children at school.
As for Hunt's modest contribution, It Happened Here is a 14-page summary of race and religious hate crimes in New Zealand between 2004 and 2012. It collects around 100 incidents, ranging from murder and kidnapping and disorderly behaviour to abuse, deliberate damage to property and desecration of sacred sites.
The first incident involves an attack on Asian students in Christchurch in April 2004, followed a month later by skinheads attacking and taunting a group of Somali youths in Wellington. Letters, including pieces of pork, were sent to Muslim families in Wellington in September 2004. There was desecration of two Jewish cemeteries, also in Wellington, and another in Whanganui that year. There was yet another round of cemetery desecration in Wellington in 2007.
Auckland, Whangārei, Hamilton, Tauranga, New Plymouth, Palmerston North, Rotorua, Hastings, Masterton, Dunedin, Invercargill, Blenheim, Queenstown, Nelson – no New Zealand city has had a monopoly on racist insults and attacks. The targets were broad too: Indian, Vietnamese, Jewish, Chinese, Thai, Somali, Korean, Taiwanese, Zimbabwean, Māori, Filipino, Japanese, even a group of Danish and English tourists attacked in Christchurch because they "spoke funny".
The persistence of Nazi symbols and language seems especially dismaying. Twenty gravestones in a historic Jewish cemetery in Auckland were vandalised and spray painted with Nazi insignia and slogans in 2012. A year earlier, three-metre wide swastikas were sprayed on a field and buildings at a rugby league park in Whangārei.
There is something sad and diligent about the Human Rights Commission summary, gathered from years of annual reports by race relations commissioners. This is as close as we get to an official hate crimes register.
"I have British colleagues who are a bit gobsmacked that this data is not collected here," Hunt says.
And while Justice Minister Andrew Little has talked of reviewing hate crimes law, there is still no clear sense about whether the monitoring of hate crime incidents would be part of that.
"I'm not aware of any firm commitment," Hunt says cautiously. "I think there is a recognition that this does demand action but I don't want to put words in their mouth. I don't want to overstate it."
'RACIST AS F---?'
Speaking of things that went under the radar before March 15 that would not be overlooked now, Hunt would like to draw people's attention to a speech by Little, delivered to the United Nations Human Rights Council in Geneva, Switzerland, in January.
It garnered almost no coverage back home, but Hunt remembers it as "a really important speech". It could even be argued that it set the scene for a year in which racism has been discussed more than in any other year in recent history – not just March 15 and its implications, but the Oranga Tamariki story and the Ihumātao occupation. Both of those stories show how racist structures from the past persist into the present.
The inequities experienced by Māori, Pacific populations, the disabled, new migrants and the LGBTQI community "stem from both direct and structural discrimination," Little told the audience in Geneva. There is racism and bias in the justice, education and health systems, he explained.
"We are reviewing our criminal justice system, with a focus on the disproportionate representation of Māori, and the role that colonisation, structural discrimination and intergenerational trauma have played in that," he said. "We plan to specifically acknowledge gender identity, in addition to sex, as a prohibited ground of discrimination in our law. We are currently exploring ways to reduce violence, abuse and neglect of disabled people."
There was work to be done, but a paradise of inclusion and fairness lay ahead. Hunt was impressed by the explicit reference to the impact of colonisation, and how its effects continue to be felt.
"There is a growing, deepening recognition of the problem of racism in Aotearoa/New Zealand," he says. "Unless we recognise it, we can't deal with it. So the fact that we are recognising it as a country is really to be welcomed."
This is probably true. Who now remembers the uproar when actor and film director Taika Waititi described New Zealand as "racist as f---" in an interview with another expat artist, musician Ruban Nielson, published in a US magazine in 2018.
"I think New Zealand is the best place on the planet, but it's a racist place," Waititi said. "People just flat-out refuse to pronounce Māori names properly. There's still profiling when it comes to Polynesians."
That was less than 18 months ago, but it seems like years. Interviewed on breakfast TV, Prime Minister Jacinda Ardern said we clearly have the same problems as everywhere else. The good thing is that we're open about it.
Not everyone was as pleased to hear from Waititi. Broadcasters Duncan Garner and Mark Richardson accused him of sabotaging and denigrating New Zealand. "This guy. he's gone too far, it's too extreme," Garner argued. "Lighten up, and change the record." And if New Zealand is racist, it has not exactly held Waititi back from succeeding, Garner concluded.
Waititi was one of the stars of the Human Rights Commission's Give Nothing to Racism campaign which launched in 2017 and followed the commission's first anti-racism campaign, That's Us, which appeared a year earlier. The commission's 2018 review of Give Nothing to Racism, supplied to Stuff, includes the results of a survey of 2003 New Zealanders aged between 18 and 50, which was the campaign's target.
Of that group, 87 per cent slightly or strongly agreed racism is unacceptable in New Zealand and only 14 per cent argued there is no racism problem here. But while 86 per cent agreed that New Zealand is racially diverse, a slightly smaller number – 78 per cent – saw that as something to be celebrated.
The commission perceived the 18 to 50-year-olds it was aiming at to be urban, open-minded and socially conscious. These are not the typical racists, but otherwise good people who let the odd casually racist thought or comment slip out. But good intentions mask a lot of casually racist comments and actions, the commission's research says.
To avoid confrontation or appearing "too PC", both of which were seen as contrary to the New Zealand character, the campaign suggested that every racist joke or comment be treated with a blank look, a silent response. This was the idea of giving nothing, a form of passive resistance.
Is this enough? Some of the research says it might be, or at least is a good start. Kevin Dunn of Western Sydney University's Challenging Racism Project has talked about the role of consensus. People with racist views are emboldened if they think their views are the consensus of the majority, and are more likely to turn their attitude into actions.
It is the job of bystanders to marginalise those opinions, as Dunn explained to the ABC this month. Leadership is important, but this is also the responsibility of ordinary citizens.
THE INTERNET – A NEW CAPACITY FOR OFFENSIVENESS
Juliet Moses grew up Jewish in New Zealand and feels grateful, mostly, for the life she has had here. Relative to elsewhere, this is a tolerant country. But we are stupid if we don't realise "there is clearly white supremacist stuff going on here and racism".
The forms have changed. There is a new internationalism to racism, thanks to the internet, as well as a new capacity for offensiveness.
"Social media has made things that much worse, and out in the open," Moses says. "I can't believe the things people say openly."
The nature of the slurs and insults sometimes shocks her. When she was young, you might hear "Jewish" as a synonym for stingy. It harked back to some old prejudices. But her sons hear jokes about showers and Hitler at school.
You might wonder what they and others really know. A Curia Market Research poll, conducted for the Auckland Holocaust Memorial Trust in July, found that only 43 per cent of people over 18 know a reasonable amount or a lot about the Holocaust. The younger subjects, aged between 18 and 30, know significantly less than older people. While only 4 per cent think the Holocaust is a myth or exaggerated, a further 30 per cent say they are not sure.
"This poll should encourage us to take on a more demanding conversation, which is partly about Holocaust remembrance and partly about how we relate to and teach the past in this country," Victoria University associate professor in history, Giacomo Lichtner, wrote this month. "If we care for a fair, mature, self-aware society that truly makes hate alien, we cannot ignore the history of the Holocaust."
At the same time, we are becoming more and more aware of the racism that remains unspoken. Do implicit biases lurk beneath our conscious prejudices?
Benjamin Reese has been doing diversity work with a focus on race for about 50 years. He explains that for about the past 14 or so years, he has specialised in the theory and application of implicit bias. He offers workshops to "every imaginable group". When Stuff phones, he is in Adelaide, South Australia, presenting his ninth workshop in nine days.
For 23 years he was a vice-president overseeing diversity at Duke University in Durham, North Carolina. It's fair to say his world view was shaped by the civil rights struggle of the 1960s. Implicit bias is more subtle, but perhaps just as powerful, as the institutional racism they fought back then.
There are countless examples and experiments. There was the one about the legal document full of errors, prepared by a young associate. Half of the attorneys who read it were told it was by a white male the other half were told the author was African-American. More errors were picked up by those who were told the associate was black.
There are the stories about people with male names getting more jobs and higher salaries than those with female names, and black drivers stopped more often by police than white drivers.
Implicit bias researcher Jennifer Eberhardt had some other shockers in her recent book, Biased. Convicted murderers who looked more stereotypically African-American were much more likely to get the death penalty than those who did not. In another case, potential buyers set the value of a house lower if it was being sold by a black family than a white family. Job applicants with "black-sounding" names were 50 per cent less likely to get callbacks than those with "white-sounding" names, even if they had good-quality CVs.
It is easy to spot it when you examine the trends and the data. It's harder to pick implicit bias one on one, which is the point. And none of us are immune, as Reese explains.
"Implicit bias is really the study of a human process, so it exists in every single person on the planet. I get in an airplane and I look in the cockpit and there is a woman who seems to be young. I say to myself, 'Okay, don't go there. You know she's as well trained as anyone else' and I sit down. Half an hour later, we're in turbulence and I start thinking about her gender and her age. That's how subtle and insidious it can be."
But we can all get better at recognising the cues, or noticing the qualities that stimulate a bias. It takes a level of self-awareness.
Explicit racism seems to be raring its head again, too. But Reese sees the presidency of Donald Trump as a product of growing racism, as much as a cause. Leaders contribute to a tone but there are complex social dynamics at work as well, including economic issues.
THE WAY FORWARD
So, how might racism be overcome or combated? Or is that an impossible question, given that he said implicit bias is more or less the human condition?
He laughs: "You're right. That's an impossible question."
No, there are things. For one, we need more inclusive conversations.
"It's hard to problem-solve if nobody or only a few people are talking about the problem. The more you can create the kind of environment where there's dialogue, it's an important prerequisite or corequisite."
And leaders can set a tone, as he said earlier. It's even better if that flows into meaningful action rather than waffle.
"Leaders can model the values that correlate with inclusivity and respect, and you're fortunate to have an incredible leader who's not only modelling that behaviour but is taking some pretty bold steps. Leadership and dialogue and then changing systems and structures.
"It's one thing to talk about how terrible gun violence is and to have authentic dialogue about that. That's important. But then you have to do something in terms of structures and the systemic issue of gun violence. To change the laws around the possession of guns, that's an important structural change."
Americans like Reese can only look over at us with a mix of admiration and envy, despite everything that has happened here. There might be a hope that change and progress is not only possible but is even inevitable.
UN Convention on the Rights of the Child celebrates 30 years
Children’s rights are an area of active engagement in New Zealand’s International Human Rights Action Plan. To celebrate the 30th anniversary of the Convention on the Rights of the Child, New Zealand has renewed its commitment to the Convention and joined with other countries in making a pledge to reflect this recommitment. New Zealand’s pledge centres on implementation of the Child and Youth Wellbeing Strategy.
A copy of New Zealand’s pledge has been registered with the UN Committee on the Rights of the Child.
Abel Tasman was the first European explorer to come to New Zealand in 1642. The Dutch navigator anchored at the northern end of the South Island in Golden Bay and was the first to sketch a map of the both islands’ west coasts. Tasman’s New Zealand expedition was cut short after he was attacked by Maori he subsequently sailed northward to Tonga.
Tasman’s maps were a huge influence in the country’s name. The voyager originally called the newly discovered islands Staten Landt, after the States General of the Netherlands (his homeland’s bicameral legislative body) and the name appeared on the first maps of New Zealand. Dutch cartographers renamed the country in 1645 to the Latin Nova Zeelandia, derived from Niew Zeeland, which is a nod to the Dutch province of Zeeland.
A good 127 years passed before any other Europeans visited this stretch of the Pacific. It wasn’t until 1769 that Captain James Cook made the first of his three expeditions to New Zealand and its surrounds.
Whalers and sealers started making regular visits to New Zealand from then onwards. Trading ensued and by the 1830s, the British government had decided it was time to curb the lawlessness of the land and officially make it a colony. Time was a serious concern for the British Crown as the island nation was already under the watchful eye of French explorers.
Soon after, the signing of the Treaty of Waitangi took place. On February 6, 1840, New Zealand’s first Governor, William Hobson, invited Maori chiefs to sign what is now considered to have been the country’s founding document. More than 500 tribal chiefs, from the North and the South Islands alike, were present that day.
HISTORY OF HUMAN RIGHTS
Originally, people had rights only because of their membership in a group, such as a family. Then, in 539 BC, Cyrus the Great, after conquering the city of Babylon, did something totally unexpected—he freed all slaves to return home. Moreover, he declared people should choose their own religion. The Cyrus Cylinder, a clay tablet containing his statements, is the first human rights declaration in history.
The idea of human rights spread quickly to India, Greece and eventually Rome. The most important advances since then have included:
1215: The Magna Carta—gave people new rights and made the king subject to the law.
1628: The Petition of Right—set out the rights of the people.
1776: The United States Declaration of Independence—proclaimed the right to life, liberty and the pursuit of happiness.
1789: The Declaration of the Rights of Man and of the Citizen—a document of France, stating that all citizens are equal under the law.
1948: The Universal Declaration of Human Rights—the first document listing the 30 rights to which everyone is entitled.
For a more in-depth look at the history of human rights, go to the United for Human Rights website.
Māori and human rights in New Zealand
A study by Massey university in January 2006 1 found that disconnection from M a ori culture is a key factor behind the high rates of Maori suicide and attempted suicide in New Zealand.
Maori have much higher rates of suicide in most age groups. For example, Maori males aged 15 to 24 in 2001 had a 34 per cent higher suicide rate than non-Maori. For young Maori women, the rate is 142 per cent higher than non-Maori. The report states that the comparatively high rates are symptomatic of the cultural alienation and social disintegration resulting from rapid colonisation.
However, Pakeha 2 culture often criticises and derides Maori for wishing to maintain their own unique ethnic and cultural heritage. Hana O’Regan (2001) comments “They rubbish Maori for focusing on the past (especially the Treaty) yet they hold tightly to and value dearly their own ‘pioneering’ heritage … Despite many Pakeha feeling good about how well Maori have been treated, racism and negative stereotypes are alive and well in the actions of many of those same people.” 3
Matauranga Maori and Human Rights
So although Matauranga Maori, the body and tradition of Maori knowledge, may not be considered ‘relevant’ by some, access to and acknowledgment of Maori culture, knowledge and beliefs are fundamental human rights, supported by international human rights law.
This body of international law is in place as a result of the ratification of international human rights treaties by dozens of countries, including New Zealand, and the development of a large body of customary law which has evolved as a result of state practice.
As O’Regan notes, New Zealand has a good reputation for respecting its indigenous population, particularly when compared to Australia. However, while progress has been made, for example in the 1975 establishment of the Waitangi Tribunal, there is still a long road to be traveled before the Maori population, who first inhabited New Zealand between AD 750 and 1400 4 , are treated as equals of the Pakeha who arrived centuries later.
The Waitangi Tribunal and Human Rights
The Waitangi Tribunal seeks to provide recommendations for redress by the Crown for past violations, including “colonial wars, confiscation and large-scale land loss” 5 relating to breaches of the Treaty of Waitangi, signed in 1840. In the settlement of the Ngai Tahu treaty claim for example, the Crown apologised for acting “unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngai Tahu in the purchase of Ngai Tahu land” 6 .
However the Tribunal has come under criticism from senior international human rights officials, notably The UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, who visited New Zealand in 2005.
Stavenhagen’s report 7 noted that the Waitangi Treaty provisions are not directly enforceable under New Zealand law and that “in view of the importance of the Treaty as a founding constitutional document and its unenforceability as a constitutional guarantee of human rights, the Special Rapporteur considers that the entrenchment of the Treaty of Waitangi in constitutional law is long overdue.” Furthermore, he notes that the findings of the Tribunal “should be judicially recognized and become binding on the Crown”.
Others question the New Zealand judicial system’s legitimacy in assessing Waitangi claims, which is seen to represent only one of the two treaty parties. Jane Kelsey for example denies the legitimacy of arguing for treaty rights within the parameters of Pakeha law 8 .
As at 30 April 2006, 1,315 claims had been registered with the Waitangi Tribunal 9 . Between September 1992 and April 2005, there had been 18 settlements of historical Treaty claims, with a total value of $718 million 10 .
However, Stavenhagen for one is critical of these settlements saying “Treaty settlements that have been negotiated so far involve quantities of reparation that represent merely a fraction of the value of the land and resources lost by Maori during the colonial period… The average settlement received by claimants is estimated to correspond to approximately one per cent of real value.”
While the Waitangi Tribunal’s vision is to “create a future for two peoples as one nation” 11 , its lack of legal teeth mean that it is not able to address human rights violations in a thorough or enforceable way.
Specific Human Rights and Maori
There are many issues of ongoing concern to Maori, in terms of the protection of their human rights. Some relate to breaches in principles of the Waitangi Treaty, however the reference point for human rights standards is not just the Waitangi Treaty but the large body of international human rights principles. These span the whole spectrum of human right including Civil and Political Rights and Economic, Social and Cultural Rights.
Stavenhagen’s report speaks of “persistent inequalities between Maori and non-Maori regarding several social indicators such as health, education, housing, employment and income”, saying that there are significant and sometimes widening, disparities between Maori and the rest of the population. According to the UN Special Rapporteur’s report, Maori consider this the result of a trans-generational backlog of broken promises, economic marginalisation, social exclusion and cultural discrimination.
There are many examples of how the human rights of the Maori population are violated and how Matauranga Maori is systematically sidelined in New Zealand. These include:
The right to health
International Covenant on Economic, Social and Cultural Rights (ICESCR) 12 . Article 12.1 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Ethnic inequalities in health increased in the 1980s and 90s, particularly in relation to heart disease and cancer. Explanations for inequalities in health include societal structure, racism and discrimination, socioeconomic resources, behaviour, and health services 13 .
The right to protection and remedies against acts of racial discrimination
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 14 . Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
According to the UN Special Rapporteur, “Redress (under the Waitangi Tribunal) seems to fall short of “just and adequate reparation or satisfaction for any damage suffered”.
The right to liberty and security of person
International Covenant on Civil and Political Rights (ICCPR) 15 . Article 9.1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Arrests, prosecution rates and conviction rates are considerably higher for Maori than for non-Maori. Although representing 12 per cent of the population over 14 years of age, Maori account for over half the prison population and 60% of all proven Youth Court cases. Maori are also heavily over represented in the victim statistics. 16
Williams (2001) comments “Social and economic disadvantage … has been entrenched over several generations. The resulting cycles of disadvantage relate closely to criminal offending and victimisation.
“Maori social advance requires a system of social management that better reflects their values and social norms … assimilation in this aspect of government is neither acceptable or effective.”
The right to freedom from discrimination
ICERD Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination.
A 2005 report 18 revealed that a significant minority of newspaper and TV stories undermined Maori.
For example the “Privilege” theme implied that Maori had unfair benefits denied to other New Zealanders, and the “Financial probity” theme implied that Maori were poor financial managers. The use of terms such as “Race debate ” instead of “Treaty debate” alluded to notions of racial difference when the issue was the Treaty.
The UN Special Rapporteur commented that the findings “highlight a systematic negative description of Maori in media coverage, an issue that should be addressed through the anti-racism provisions of New Zealand’s Human Rights Act.” 19
The right to adequate housing
ICESCR Article 11.1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
The UN Committee on Economic, Social and Cultural Rights General comment 4 20 states that “The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights.”
According to the Human Rights Commission 20 , Maori and Pacific peoples are disadvantaged in terms of affordability and habitability of housing. They are four times more likely to live in overcrowded houses than the national average.
The right to education
Convention on the Rights of the Child 21 . Article 13.1 The child shall have the right to freedom of expression this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.
Article 29.1.c States Parties agree that the education of the child shall be directed to … the development of respect for the child’s parents, his or her own cultural identity, language and values.
“Teachers, through control over curriculum and pedagogy, have traditionally denied the authenticity of Maori experiences and voice.” 22
The Waitangi Tribunal concluded that the education system in New Zealand is operating unsuccessfully. “Maori children are not being successfully taught, and for that reason alone, quite apart from the duty to protect the Maori language, the education system is being operated in breach of the Treaty (of Waitangi)”. 23
While the UN human rights system provides a good framework for human rights and the treaties are legally binding, the system has basic limitations in terms of effectively enforcing implementation of the various UN human rights treaties. The initial stage of implementation is at the behest of the state, which must first ratify the treaties. Then, once a party to the various covenants, the system requires a minimum level of voluntary cooperation by the state. 24
Indeed this is the exact same problem presented by the Waitangi Tribunal which can only make recommendations, not present legally binding decisions, to the Crown.
Matauranga Maori represents the basis of cultural knowledge and cohesion, “a separate way of knowing and being” 25 , which is vital to the integrity of the Maori peoples. Only through having a respect for and an appreciation of Matauranga Maori can Pakeha hope to feel a connection with this land they now call home.
Most importantly, there can be no culture of democracy and freedom in New Zealand without respect for human rights.
2. Defined as New Zealanders not of Maori blood lines
3. Ko Tahu, Ko Au Kai Tahu Tribal Identity, Hana O’Regan, Horomaka Publsiging 2001, p128
4. Ki Te Whaiao An Introduction to Maori Culture and Society, Ka’ai, Moorfield, Reilly and Mosley, Pearson Longman 2004, p27
6. Crown Settlement Offer, Consultation Document from the Ngai Tahu Negotiating Group, 1997
7. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Addendum MISSION TO NEW ZEALAND 13 March 2006 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/118/36/PDF/G0611836.pdf?OpenElement
8. Quoted in Waitangi and Indigenous Rights, FM Brookfield, Auckland University Press1999, p168
12. ICESCR Ratified by New Zealand in 1979
13. Health Inequalities Research Programme, University of Otago
14. ICERD Ratified by New Zealand in 1972
15. ICCPR Ratified by New Zealand in 1979
16. The Too-Hard Basket, Maori and Criminal Justice since 1980, Charlotte Williams, Institute of Policy Studies 2001
17. Media and Te Tiriti Treaty Resource Centre September 2005 http://www.trc.org.nz/resources/media.htm
18. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Addendum MISSION TO NEW ZEALAND 13 March 2006
21. CRC ratified by New Zealand in 1993
22. Culture Counts, Changing Power Relations in Education, Bishop & Glynn, Zed Books, 1999, p200
24. For a more thorough discussion of this issue, please see Elizabeth Willmott Harrop human rights mechanisms and international law
25. Matauranga Maori as an Epistemology, Tau, Rawiri Te Maire, 2001 in Histories, Power and Loss: Uses of the Past – A New Zealand Commentary. Andrew Sharp and Paul McHugh, Wellington: Bridget Williams Books, pp 61-73
When the earth is cut: A poem about indigenous rights and the environment:
“Civilised” societies used genocide and slavery to steal land, resources and labour
So that progress knows no barrier
Wealth no bounds
Morality and legality were savaged
As we named them savages