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Re-Evaluation of the human rights protections in New Zealand. A discussion paper [2000] NZAHGovDP 7 (1 October 2000)
Last Updated: 15 August 2020
Discussion Paper
Re-evaluation of the Human Rights Protections in New
Zealand
Ministry of Justice
Te Manatu Ture
FOREWORD
Human rights
law must be effective, relevant, and comprehensive. It is fundamental to a free
and democratic society. Human rights
law expresses the values that New
Zealanders believe to be fair and decent; and provides a catalyst for change
where that is needed.
Our human rights legislation is now almost 30 years old. The
manifestos of both the Labour Party and of the Alliance Party make clear
our
commitment to a review of that legislation and the structures, which implement
it.
In April this year, the government commissioned an independent
ministerial re- evaluation of human rights protections in New Zealand.
This
report was produced as an outcome o1’that re-evaluation. The report
provides essential information on which future policy
can be based, as well as
clear recommendations. I am very grateful to members of the re-evaluation team
— Peter Cooper, Paul
Hunt, Janet McLean, and Bill Mansfield — for
their hard work.
It is now time for members of the public. hey stakeholders, and
interest groups, to have their say. I invite comments therefore on
this report
— in particular its recommendations for the future — to provide the
basis for further policy development
and governmental decisions.
Submissions should be sent to:
Ministry of.Iustice PO Box 180 WELLINGTON
Closing date for submissions is 20 December 2000.
Human rights affects all of us, and it is essential that
everyone has the opportunity to get involved.
Hon Margaret Wilson Associate Minister of Justice
RE-EVALUATION OF THE HUMAN RIGHTS PROTECTIONS
IN NEW ZEALAND
REPORT
FOR THE
ASSOCIATE MINISTER OF JUSTICE AND ATTORNEY-GENERAL HON.
MARGARET WILSON
DISCLAIMER
The Ministerial Re-evaluation of Human Rights
Protections in New Zealand was written by an independent evaluation team for the
Minister
of Justice. The views expressed in it are those of the independent
evaluation team and do not necessarily represent the views of
the Ministry of
Justice or the Government.
The report is hosted on the Ministry of Justice’s World Wide Web
site,(www.justice.govt.nz) for user information only. The
Ministry has attempted
to ensure that the report is an accurate copy of the hard copy available from
the Ministry of Justice. However,
no liability is accepted in respect of any
person who makes any use of the information contained in this report or who in
any way
copies or relies on any of the information contained in the report. The
information is provided solely to enhance awareness of the
contents of the
report and to invite submissions.
First published in October 2000 by the Ministry of Justice
PO Box 180
Wellington New Zealand
Crown Copyright ISBN 0-478-20154-0
TABLE OF CONTENTS
EXECUTIVE SUMMARY:
“The affirmation and implementation of human rights principles form
the foundation of a just society. Such issues cannot be
dismissed as of concern
only to the international community, and as such, of academic interest only;
they are vital to the peace
and prosperity of every society.”
Dame Silvia Cartwright
Background:
- At
the San Francisco conference that developed the United Nations Charter and ever
since, New Zealand has played a leading role in
the development of the
international law of human rights that has established principles, standards and
goals for the relationship
between states and their citizens and amongst
citizens themselves.
- The
significance of this branch of international law in underpinning the basic rules
of a free and democratic society, and in charting
a path for realisation of the
potential of individuals and groups within society, is not widely recognised in
New Zealand or, for
that matter, in many other developed countries that have
enjoyed a functioning democracy for many years.
- New
Zealand’s law and institutions dealing with human rights have grown
organically, largely in response to the adoption of
the international standards
we have helped to develop. This organic growth has had its advantages and
disadvantages.
- The
understanding and effective protection of human rights at both the international
and domestic levels is recognised to be
a constantly evolving process.
In New Zealand the political, economic, social and cultural factors relevant to
the enjoyment
of human rights have changed significantly in the quarter century
or more since the establishment of our principal human rights bodies.
To
exemplify the consequences of this evolution, the term “race
relations” now seems too narrow to reflect the issues
(which include
cultural rights, indigenous rights, economic and social disadvantage and the
Treaty of Waitangi) that need to be addressed
in the
context of human rights among the communities that make up society today. It is
unsurprising therefore that there is strong support
for the view that this is a
timely point at which to take stock of our law and institutions relating to
human rights.
The Law:
- In
considering how best to promote and protect human rights, the Terms of Reference
query whether human rights law should enjoy primacy
or otherwise over other
legislation. New Zealand’s human rights law is delivered through a number
of Acts –particularly
the New Zealand Bill of Rights Act 1990 and the
Human Rights Act 1993. The relationship between these two major pieces of human
rights
law has not been well understood. This report seeks to clarify that
legislation should be measured against a Bill of Rights Act standard,
and
recommends a process by which a citizen could mount a publicly funded challenge
against discriminatory acts performed under statutory
authority by way of
complaint to the national human rights institution.
- A
thorough going revision of the Bill of Rights Act would inevitably raise
constitutional issues of some magnitude touching on the
respective roles of
Parliament and the Judiciary. Those issues are linked to other constitutional
issues, all of which can be properly
considered only through an appropriate
process at an appropriate time.
- In
the meantime it is suggested that some more limited changes should be made for
the following purposes:
- To
assist the principled examination of legislation (and policies or practices
under legislation) to ensure that where it provides
for differential treatment
of individuals or groups, there is a sound social justification for such
treatment consistent with the
relevant international human rights
standards.
- To
effect the institutional changes recommended in this report.
- To
give the national human rights institution the specific additional function of
encouraging discussion, research and education on
the relationship between the
Treaty of Waitangi and the rights set out in
the international human rights instruments and domestic human rights
laws.
- To
encourage the principal human rights organisation in its educational and
advisory work to promote and adopt a broad understanding
of human rights
including economic, social and cultural rights.
The present institutional situation:
- The
New Zealand institutions dealing with human rights issues have been set up at
different points over a period of more than twenty
years. There are significant
differences amongst them in terms of role, structure and function. In the case
of the longer established
organisations (the Human Rights Commission and the
Race Relations Office) the complaints function has tended to occupy much of
their
time and energy. Despite strenuous efforts to increase their educational
and promotional work these older agencies are perceived
as complaints
driven.
- The
complaints load on the Human Rights Commission and the Race Relations Office has
had the following consequences:
- They
have had difficulty in gaining public recognition of their role in promoting
human rights in the broader sense as a foundation
for social cohesion;
- Publicity
surrounding particular cases that may have been unrepresentative of the casework
undertaken has generated a public impression
that they are involved in
relatively less important human rights issues;
- The
power to conduct inquiries into more systemic human rights issues has been
under-utilised.
- The
fragmented nature of the institutions has led to some confusion amongst
complainants as to where their complaint should be lodged.
The same complaint
may have aspects that require consideration by two or more of the
agencies.
- The
small size of some of the agencies presents particular difficulties. They have
limited capacity to cope with the normal ebb and
flow of work pressures, let
alone situations of urgency or crisis. They have the same accountability
requirements as
larger organisations, and the same need for support and servicing, but limited
ability to achieve efficiency gains in the area. They
have to compete in the
recruitment market with organisations that can offer staff more attractive
conditions and prospects. More
generally, they have difficulty in offering a
career structure within the organisation and are often dependent on the
commitment
of staff to the nature of the work.
- The
structure of some of the organisations does not encourage, or even militates
against, a proper understanding of the roles of governance
and management. Lack
of a separate governance regime means there is increased exposure to the risk of
organisational failure.
- In
relation to some of the organisations, the existence of the enforcement side of
the complaints function is seen as inhibiting the
ability of the organisation to
gain the confidence and trust needed for effective workplace or industry wide
education work.
- All
organisations working in the field of human rights are from time to time likely
to be unpopular with the government of the day
and/or certain sections of the
public. Small fragmented organisations can be particularly vulnerable to short
to medium term adverse
political sentiment.
Recommended Institutional Changes:
- In
many jurisdictions the national human rights institution is likely to have a
number of related functions including, in particular,
community education and
individual complaints resolution. But the emphasis that is given to one or other
of these two major functions
can have a significant effect on the qualities
required to lead the organisation, the way it is structured, the systems and
processes
it adopts for dealing with complaints and the priority, effort and
resources it is able to apply to education work and other
functions.
- If
the organisation is focussed on complaints resolution those leading the
organisation will be seen as having principal responsibility
for settling
disputes and as exercising an important quasi-judicial function. They will need
to be at least reasonably familiar with
legal process and analysis. And the
structure of the
organisation and its systems will need to be designed around the ability to
analyse and process disputes in ways that assist determinations.
- If
on the other hand the principal focus of the organisation is on taking the lead
within the community in promoting a society that
respects the dignity, worth and
human rights of all its members with all their differences then other leadership
qualities, structures
and systems are indicated. Those in the leadership role
will need to be focussed on the strategic human rights issues of the day.
They
should have the personal qualities to initiate and lead constructive discussion
within the community of the various dimensions
of human rights issues, to
promote general education and awareness of human rights and to encourage
positive interaction between
different individuals, groups, communities and
cultures within society. Their involvement in individual complaints should be
limited
to those of strategic significance and the complaints resolution process
should be structured and performed in ways that link to,
and support, the
organisation's educational role.
- It
is suggested that New Zealand’s national human rights institution should
be designed to enable it to focus appropriately
on strategic community
leadership and education work. This will require a new governance and
organisational structure, new accountability
arrangements and new processes.
This community leadership role cannot be achieved effectively within existing
organisational models
that are, for the most part, small and fragmented and are
structured around the need to make determinations on individual
complaints.
- The
key feature of the proposed redesigned organisation would be a Governance
Council of 7 or 9 members. The membership of the Council
would be reflective of
New Zealand society and of the various aspects of human rights and communities
of interest in human rights
that require particular attention. All members of
the Council would be expected to bring a broad awareness of human rights to
their
work as well as an understanding of the importance, in the New Zealand
context, of the Treaty of Waitangi. However, through their
particular
backgrounds, they should also ensure that the Council gives appropriate
attention to each aspect of human rights. On
another dimension, the Council will
need amongst its members a diversity of skill sets including finance, legal,
management, public
relations and advocacy. The Council should establish the
strategic directions of the organisation and collectively direct management
through strategies, plans, policies and budget
bids. It would decide and, where appropriate, lead significant initiatives
within the community to improve understanding of difference
and respect for
human rights. It would guide and monitor the work of the organisation and
maintain high level contacts with all stakeholder
interests including NGOs. In
view of the range of activities needed in the short to medium term to achieve an
effective community
leadership role, and in particular the need to build
relationships with all stakeholder groups, the Council should initially be led
by a full time President.
- The
Council should be supported by a chief executive who should be accountable to
the Council for the performance of the organisation
across all its activities
including the maintenance of sound working level relationships with stakeholder
interests including NGOs.
Included within the Chief Executive's accountabilities
should be the establishment of high level capability within the organisation
across all functional areas including the necessary knowledge and expertise in
the various areas of human rights. The Chief Executive
should also be
accountable for ensuring that the Council is provided with the necessary trends
analysis of complaints received and
also with those strategically important
individual cases on which the Council may wish to seek judicial
determination.
- The
process of conciliation of complaints should be carried out within the
organisation by experienced and capable staff backed by
the necessary powers to
bring the parties together and obtain documents. If the conciliation process is
unsuccessful then, without
further investigatory work and the present practice
of forming provisional and final opinions, the matter should be referred
directly
to the Proceedings Commissioner for consideration as to whether
proceedings should be initiated before the Complaints Review
Tribunal.
- The
Proceedings Commissioner should not be a member of the Council nor be located
within the organisation. Instead the position should
stand-alone. Its principal
function would be to ensure consistency of standards in the cases submitted to
the Complaints Review Tribunal.
An independent check on this function could be
undertaken from time to time. A stand alone situation for the Proceedings
Commissioner
should reduce the following concerns expressed about the present
situation:
- that
decisions about prosecution may be influenced by in house knowledge about the
conciliation process; and
- that
the in house prosecution function can inhibit external acceptance of the
organisation's role in workplace education.
- Although
there is an argument for human rights cases to be given the greater weight of
consideration at District Court level the relative
speed, flexibility and
informality of hearings in the Complaints Review Tribunal remain major
advantages. Consideration should be
given, however, to strengthening the
Tribunal by warranting some District Court judges to sit on Tribunal
cases.
- The
proposed redesigned national human rights institution should include the present
Human Rights Commission and Race Relations Office.
The role and functions of the
Commissioner for Children, which are currently under review, would also seem to
have some important
linkages to the proposed organisation. If a decision is
reached that the Commissioner for Children should be rights-based and/or
should
have a formal system for considering complaints in respect of children's rights
similar to that available in respect of other
human rights the case for
including this small office would be very strong. In that event it would be
necessary for the Council to
include one or more members whom children's
interest groups could identify as having the knowledge and concern to ensure an
appropriate
focus on children's interests. (This may or may not involve an
increase in the total membership of the Council) If further work and
consultation is thought to be necessary before a final decision is reached on
this question the organisational design could be undertaken
in a manner that
would allow the Office to be included at a later date.
- Different
considerations apply in respect of the offices of the Health and Disability
Commissioner and the Privacy Commissioner. In
the longer term, and after the
proposed national human rights institution has established itself and its public
reputation, the obvious
connections between the work of the Health and
Disability Commissioner and other human rights work may well deserve further
consideration.
At the present time, however, the office is in the process of
reorientation under a new Commissioner and is operating in an environment
that
has been experiencing major change over an extended period. With a staff of 45
it
has a critical mass and in the absence of pressing reasons for change should
probably be allowed to settle down where it is.
- The
right to privacy is set out as a human right in the international human rights
instruments but in practice the purpose of the
work of the Privacy Commissioner
does not currently connect closely with the other main agencies dealing with
human rights. In fact,
at present the purpose of the work would seem to bear a
closer connection to the freedom of information work of the
Ombudsman.
- If
the recommendation for a redesigned national human rights institution is
accepted its implementation will need to be carefully
phased. The necessary
steps would include the identification of potential Council members, the
detailed design of the organisation
below the level of chief executive, the
preparation and consideration by Parliament of the necessary legislative
amendments, the
formal appointment of the Council and chief executive once the
legislation is passed and the conduct of a change management process.
It is
likely that some of these steps could be conducted in parallel provided that
suitable interim arrangements can be designed
into the transition phase. Work
would continue to be carried out in the existing agencies until sufficiently
robust new organisational
arrangements are in place.
Early Consideration of Human Rights Issues and Obligations in
Policy Making:
- International
human rights obligations are usually only factored into the government
policy-making process at a relatively late stage
with a consequent risk of
disruption to that process. There are a number of practical steps that might be
taken to encourage wider
understanding amongst officials that early
consideration of relevant international human rights norms will contribute to
the development
of sound policy proposals and a smooth policy making
process.
A New Zealand National Plan of Action for the Promotion and
Protection of Human Rights:
- Consultations
with stakeholders indicate there is reasonably widespread support for an
appropriately prepared New Zealand National
Plan of Action for human rights. The
United Nations has recommended such plans of action and New Zealand has
advocated for them in
the Asia/Pacific region. The purpose of such plans is to
identify measures that can help to develop and strengthen co-operation on
human
rights at the national and local levels. It is generally recognised that, if
proper consultations are undertaken and expectations
are properly managed, the
process by which such plans are developed can be a powerful device for enhancing
respect for human rights
across society.
- To
be successful a national plan of action must enjoy government support and
involvement. There may be advantage, however, if it is
driven by an agency that
is not part of government. Consideration should be given to associating persons
who might be considered
for appointment to the Council of the proposed new
national human rights institution with the preparation of the
plan.
Funding:
- The
adequacy of the funding levels of the existing organisations was not part of the
Terms of Reference of this re-evaluation; nor
was the question of possible
efficiency gains. It is noted that there have been strong calls for increases in
the current levels
of funding of these organisations. On the other hand, some
interviewed stakeholders volunteered that they did not consider they were
getting sufficient value from the current funding. Some staff also indicated
that there were opportunities for significant improvements
internally in the
value to be obtained from the money currently expended.
- The
purpose of the recommendations in this report is to achieve a more effective
human rights environment for New Zealand; not to
save money. Nonetheless it is
considered that the implementation of these recommendations will in fact
generate additional value
from the current expenditure levels. It is not
possible to be precise about the amount involved, but on the basis of comparable
reorganisations
elsewhere it could be of the order of $1 m. or more provided the
changes are properly designed and implemented. A saving of this
order would
enable a useful amount of much needed additional community work to be
undertaken. Given that for the 2000/2001 year approximately
$6.3 m. has been
appropriated for the Human Rights Commission and the Race Relations Office, it
would also mean that an expenditure
of up to $0.5 m. this year to implement the
changes (it may be less than that) would have a pay back to the community of
between
two and six months.
- It
would be appropriate for the general level of funding for human rights work to
be reconsidered following the completion of the
proposed National Plan of
Action.
Specific recommendations to implement the strategic directions
outlined in the above summary can be found at pages 47, 83, 89, 102
and 111 of
this report.
TERMS OF REFERENCE
- On
3 May 2000 the Associate Minister of Justice, the Hon. Margaret Wilson,
announced the Government’s intention to establish
a Ministerial
re-evaluation of the Human Rights protections in New Zealand. This re-evaluation
was to be conducted on the following
terms:
TERMS OF REFERENCE
MINISTERIAL RE-EVALUATION OF HUMAN RIGHTS PROTECTIONS IN
NEW ZEALAND
The Government is committed to creating and sustaining a
world-leading human rights environment which enables people to reach their
individual and collective potential regardless of their characteristics, and in
which human rights considerations are at the heart
of public and international
policy development.
Accordingly, the Government has decided to conduct a Ministerial
re-evaluation of the Human Rights Act 1993, the current system of
independent
human rights enforcement agencies and the mechanisms for ensuring that
international human rights obligations are integrated
into legislation and
practice. New Zealand has had human rights legislation for almost 30 years and
it is now an appropriate time
for such a re-evaluation moving into the new
millennium.
The re-evaluation, which will be in the form of a scoping exercise, should
identify the most effective model of mainstreaming human
rights
considerations in New Zealand. The re-evaluation will identify from other
jurisdictions current best practices in mainstreaming
human rights that would be
of benefit to New Zealand.
The tasks for the ministerial re-evaluation are:
- To
re-evaluate the nature and scope of the provisions of the Human Rights Act 1993,
and if necessary, recommend amendments that would
contribute to the further
mainstreaming of human rights considerations in New
Zealand.
- To
develop recommendations for the relationship of our domestic human rights laws
to other legislation in a way that best promotes
and protects the human rights
of New Zealanders in accordance with international conventions. This should
include consideration of
the primacy or otherwise of human rights law to other
legislation.
- To
re-evaluate the roles, interrelationships, operation and structures of the Human
Rights Commission, Race Relations Conciliator,
the Privacy Commissioner and
Complaints Review Tribunal, and if necessary, recommend changes that would
enhance the effective promotion
and enforcement of New Zealand’s domestic
human rights laws. This should include the re-evaluation of options for the
resolution
of human rights complaints.
- To
re-evaluate the inter-relationships of the above agencies with the Commissioner
for Children and Health & Disability Commissioner,
given their respective
statutory roles.
- To
re-evaluate the adequacy of current mechanisms, and if necessary, recommend
changes that would ensure that international human
rights obligations are taken
into account in the development and implementation of government policy,
practice and New Zealand legislation.
- To
consider whether New Zealand would benefit from a National Plan of Action for
the Promotion and Protection of Human Rights as recommended
by the United
Nations World Conference on Human Rights, and if necessary, to recommend a
process for the development of a New Zealand
National Plan of
Action.
- By
letter dated 10 May 2000, the Minister invited Peter Cooper, Paul Hunt, Janet
McLean and Bill Mansfield to provide independent
advice on the issues covered in
the Terms of Reference. The list of individuals and organisations that were
invited to participate
in focused consultation meetings with the independent
advisers is attached as Appendix I to this Report.
INTRODUCTION
- Given
the possible need for a legislative resolution to the primacy issues
accompanying the expiry of section 151 of the Human Rights
Act 1993 (HRA), the
Minister requested that the independent advisers provide her with a scoping
report by early August 2000. Accordingly,
a focused consultation process was
designed by the Ministry of Justice to provide an opportunity for the advisers
to obtain the views
of a cross-section of NGOs, parliamentarians, academics and
government departments, as well as the Commissioners and
staff of
New Zealand’s human rights organisations.
- This
focused consultation process was conducted over the months of June and July, and
consisted of the following three phases:
- Phase one:
Understanding stakeholder views
Initial stakeholder interviews and consultation meetings were conducted from 6
– 16 June 2000. This was to provide a cross-section
of stakeholders to
express their views on the issues raised in the Terms of Reference.
- Phase two:
Stakeholder workshop
A two-day workshop was conducted on 1 – 2 July. This was to provide an
opportunity for a selection of stakeholders to work
together on identifying
common ground that could be the basis for future directions.
- Phase three:
Stakeholder consultations
A second round of stakeholder interviews and consultation meetings were
conducted from 3 – 14 July 2000. This was to discuss
the independent
advisers’ initial thoughts and determine how best to meet the Terms of
Reference.
- It
is a tribute to stakeholders’ commitment to human rights issues in New
Zealand that they were willing to participate in this
intensive process with
limited notice and time to prepare. The Commissioners and their staff gave
generously of their time and resources
to constructively participate in an open
and frank discussion of
both successes and regrets in New Zealand’s human rights environment.
Given the amount of personal sacrifice and dedication
that these individuals
have given to the work of their specific organisations, their professionalism
towards any criticism of the
environment in which they operate is to be
commended.
- It
should also be emphasised that this “scoping report” is intended to
be the beginning of a longer policy process to
be conducted by the Minister and
her officials. Given the breadth of the Terms of Reference, the short time frame
and the limited
amount of consultation that could be conducted within the time
available, the recommendations in this report should be used to formulate
the
principles for development of a better human rights environment. The details of
the proposed organisational design and its implementation
should be the subject
of further work and discussion. This should include further consultation with
Mäori representatives concerning
the proposed legislative reference to the
need for elucidation regarding the relationship of the Treaty of Waitangi with
domestic
and international human rights law.
PART ONE: THE DEVELOPMENT OF INTERNATIONAL AND DOMESTIC
PROTECTIONS FOR HUMAN RIGHTS
“It is thanks to the Universal Declaration that human
rights have established themselves everywhere as a legitimate political
and
moral concern, that the world community has pledged itself to promote and
protect human rights, that the ordinary citizen has
been given a vocabulary of
complaint and inspiration, and that a corpus of enforceable human rights law is
developing in different
regions of the world through effective regional
mechanisms”
Mary Robinson, United Nations High Commissioner for Human Rights
The emergence of universal and indivisible human
rights:
- At
the San Francisco conference that drafted the United Nations Charter (1945), and
during the subsequent negotiations which led to
the adoption of the Universal
Declaration of Human Rights (1948), New Zealand played a leading role in the
development of a new branch
of international law. The international law of
human rights establishes principles, standards and goals for the relationship
between
a state, individuals and communities. The significance of international
human rights in underpinning the basic rules of a free and
democratic society,
and in charting a path for the realisation of the potential of individuals and
groups within society, is not
widely recognised in New Zealand - or, for that
matter, in many other developed countries that have enjoyed a functioning
democracy
for many years.
- All
societies, religions and cultures have dwelt on the issue of what rights and
responsibilities an individual has within his or
her community, what he or she
can do to others, and what power a government may legitimately exercise over
individuals and groups.
Adopted in the aftermath of the Second World War, the
Universal Declaration of Human Rights marked the first occasion that a world
organisation articulated and agreed a common set of rights - civil, political,
economic, social and cultural - to which people everywhere
are entitled. Its
adoption was a landmark event signalling that human rights are a matter
of
legitimate international concern and no longer under the exclusive jurisdiction
of states.
- As
its title makes clear, the Declaration adopts a universalist approach to human
rights. According to its Preamble, the Declaration
constitutes “a common
standard of achievement for all people and all nations” based on
“recognition of the inherent
dignity and of the equal and inalienable
rights of all members of the human family” as “the foundation of
freedom, justice
and peace in the world”. That there is, in fact,
widespread agreement across numerous societies and cultures about core human
values, principles and rights is supported by the extent of ratification of key
international human rights treaties which have been
negotiated since the
Declaration’s adoption. Indeed, many societies have gone further and
included these principles and rights
in their national constitutional
arrangements.
- The
rights contained in the Declaration were reaffirmed at the World Conference on
Human Rights in Vienna (1993). New Zealand actively
participated in this event
which was the largest international gathering ever convened on the theme of
human rights. The Vienna Declaration
and Programme of Action, adopted by
consensus among more than 170 states, confirmed that all human rights are
“universal, indivisible
and interdependent and interrelated”, and
noted that “while the significance of national and regional
particularities
must be borne in mind, it is the duty of States, regardless of
their political, economic and cultural systems, to promote and protect
all human
rights and fundamental freedoms” (paragraph 5). More recently, the
Declaration was repeatedly reaffirmed on the occasion
of its fiftieth
anniversary during 1998.
- The
Declaration regards all rights - civil, political, economic, social and cultural
- as indivisible as well as universal, that is
they are deemed to be of equal
importance being interdependent and interrelated, and therefore requiring the
same level of protection.
Unfortunately, as Mary Robinson remarked when
reflecting on the fiftieth anniversary of the Declaration, “we must be
honest
and recognise that there has been an imbalance in the promotion at the
international level of economic, social and cultural rights
and the right to
development on the one hand, and of civil and political rights on the
other.” This imbalance is not only
evident at the international level. At
the regional and national levels, there
has also been greater recognition of civil and political rights in comparison to
economic, social and cultural rights.
- Today,
there is an increasing recognition that this imbalance needs to be addressed,
and there is also a growing acknowledgement of
the relationship between
governance, human development and human rights. Recently, in a publication
called ‘Development and
Human Rights: The Role of the World Bank’,
the World Bank wrote: “The World Bank believes that creating the
conditions
for the attainment of human rights is a central and irreducible goal
of development. By placing the dignity of every human being
- especially the
poorest - at the very foundation of its approach to development, the Bank helps
people in every part of the world
build lives of purpose and hope.” While
just a few weeks ago, the UN Development Programme (UNDP) published its annual
Human
Development Report which, this year, is devoted entirely to the
relationship between human rights and human development. In his Foreword,
Mark
Malloch Brown, the head of UNDP, writes: “[A] broad vision of human rights
must be entrenched to achieve sustainable human
development. When adhered to in
practice as well as principle, [human rights and sustainable human development]
make up a self-reinforcing
virtuous circle.”
- At
a less general level, there is a significant and growing body of empirical
evidence that reinforces the interrelationship between
governance, development
and rights. To cite one example from research undertaken by Amartya Sen, the
1998 Nobel Laureate in Economics:
“It is not surprising that no famine has
ever taken place in the history of the world in a functioning democracy - be it
economically
rich or relatively poor. Famines have tended to occur in colonial
territories governed by rulers elsewhere (as in an Ireland administered
by
alienated English rulers), or in one-party states (as in Cambodia in the 1970s),
or in military dictatorships (as in Ethiopia
or Somalia). Authoritarian rulers,
who are themselves rarely affected by famines, tend to lack the incentive to
take timely preventive
measures.”1
- In
conclusion, as with other historic documents, our understanding of the Universal
Declaration of Human Rights evolves with the passage
of time.
The
1 Abridged from Sen’s book Development as
Freedom (Knopf 1999)
Declaration is animated by a sense of the dignity and well-being of all
individuals and communities. Today, there is increasing recognition
of the close
relationship between governance, human development and human rights. Adherence
to universal human rights standards is
an important and necessary plank in
achieving long-term, sustainable development.
The recognition of states’ national human rights
obligations:
- One
of the major accomplishments of the UN in the field of human rights has been the
acceptance by states that national sovereignty
in respect of the treatment of
citizens is no longer unfettered: a state’s treatment of individuals and
groups within its jurisdiction
has become the subject of legitimate enquiry and,
in some cases, intervention by the international
community.
- The
growing panoply of human rights treaties and monitoring mechanisms - together
with the burgeoning of influential NGOs such as
Amnesty International and Human
Rights Watch, and the impact of the global information revolution - has raised
the profile and awareness
of international human rights issues and concerns, and
led to more vigilant and searching scrutiny of human rights violations around
the world. This has been termed the emerging ‘globalisation of
accountability’.
- This
international standards setting and monitoring regime has been and remains an
evolutionary process that continues to develop.
For example, since the creation
of the Universal Declaration the UN has developed several specific treaties and
monitoring treaty-bodies
including:
- The
International Covenant on Civil and Political Rights (ICCPR) - The Human
Rights Committee
- The
International Covenant on Economic, Social and Cultural Rights (ICESCR) -
The Committee on Economic, Social and Cultural Rights
- The
International Convention on the Elimination of All Forms of Racial
Discrimination (CERD) - The Committee on the Elimination of Racial
Discrimination
- The
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) - The Committee on the Elimination of Discrimination Against
Women
- The
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) - The Committee Against Torture
- The
International Convention on the Rights of the Child (UNCROC) - The Committee
on the Rights of the Child
- This
globalisation of accountability has led to other developments, including the
growth of national human rights institutions (NHRIs).
The UN has actively
encouraged and assisted states to establish NHRIs with the provision of
technical assistance and the development
of guidelines for their creation. Known
as the Paris Principles, these guidelines affirm the need to invest independent
NHRIs with
a broad mandate, which should be set out clearly in a constitutional
or legal text, to promote and protect human rights. The growing
importance of
NHRIs as mechanisms for the implementation of international and domestic human
rights is reflected in this month’s
meeting in Rotorua of the Asia Pacific
Forum of National Human Rights Institutions.
- This
Report adopts the conception of ‘human rights’ which is embodied in
the Universal Declaration of Human Rights and
subsequently elaborated in the six
core international human rights treaties listed above. It is noted that the
Treaty of Waitangi
encompasses respect for cultural life, non-discrimination,
equality and other fundamental principles, all of which resonate with
international human rights law. Moreover, both international human rights law
and the Treaty anticipate that a reasonable balance
may be struck between the
rights of individuals and groups. In this sense, therefore, the Treaty of
Waitangi is a human rights instrument
and it, too, has informed the
understanding of human rights which underpins this Report.
The implementation of New Zealand’s international
obligations:
- As
already observed, New Zealand has played an active role in the development of
international human rights standards. In addition
to its common law inheritance
of various human rights protections, New Zealand has
demonstrated
its commitment to human rights by ratifying the six core international human
rights treaties (see para 17 above), thereby voluntarily
subjecting its
legislation, policies and practices to international monitoring.
- It
should also be noted that another avenue of protection available to
New Zealanders is the individual complaints mechanisms
under: (i) the Optional
Protocol to the ICCPR and (ii) Article 22 of the CAT. These international
instruments enable individuals
who claim to have had their rights under these
treaties violated to submit communications to specific UN bodies for their
consideration.
New Zealand has not made a declaration under Article 14 of the
CERD, to allow individual complaints to be taken to the Committee
on the
Elimination of Racial Discrimination. But the Government has recently announced
that the necessary steps will be taken to
enable New Zealand to become party to
the recently concluded Optional Protocol to CEDAW. This will enable
international consideration
of individual complaints in respect of the rights
contained in that convention.
- New
Zealand takes these obligations seriously. In general terms, New Zealand’s
approach is not to become a party to an international
treaty unless domestic
legislation and practice fully comply with all its provisions, or the treaty
allows for specific exemptions;
non-compliance would place us in breach of
international law.
- The
long evolution of international human rights standards, combined with New
Zealand’s strong common law traditions, has
led to the organic growth of
specifically focused domestic human rights legislation and organisations. These
measures were taken
when it was decided that a specific issue needed to be
addressed or specific protections codified. The range of domestic human rights
legislation enacted, and organisations established, include:
- - The Race
Relations Act 1971;
- - The Treaty of
Waitangi Act 1975;
- - The Human
Rights Commission Act 1977;
- - The
Constitution Act 1986;
- - The Abolition
of the Death Penalty Act 1989;
- - The Crimes of
Torture Act 1989;
- - The Children,
Young Persons and their Families Act 1989;
- - The New
Zealand Bill of Rights Act 1990;
- - The Human
Rights Act 1993;
- - The Privacy
Act 1993;
- - The Health and
Disability Commissioner Act 1994;
- - The Race
Relations Conciliator’s Office;
- - The Human
Rights Commission;
- - The
Commissioner for Children;
- - The Privacy
Commissioner;
- - The Health and
Disability Commissioner.
The enactment of these various laws and the growth of these separate
organisations has allowed New Zealand to address specific domestic
human rights
issues such as discrimination, race relations and the rights of children.
However, it has also led to a fragmentation
of issues and the lack of a
strategic approach in relation to community leadership and education across
the entire range of
New Zealand’s international human rights
obligations. These are among the central concerns of this report.
PART TWO: NEW ZEALAND’S HUMAN RIGHTS LAW
“There is no single model of democracy, or of human
rights, or of cultural expression for all the world. But for all the world,
there must be democracy, human rights and free cultural expression... The
Universal Declaration of Human Rights, far from insisting
on uniformity, is the
basic condition for global diversity. That is its great power. That is its
lasting value. The Universal Declaration
of Human Rights enshrines and
illuminates global pluralism and diversity. It is the standard for an emerging
era in which communication
and collaboration between States and peoples will
determine their success and survival.”
Kofi Annan, United Nations Secretary-General
- The
evolution of New Zealand’s human rights legislation has occurred in a
rather piecemeal fashion. If the opportunity existed
for designing the domestic
system of implementation anew, this report may have contained more
thoroughgoing recommendations to clarify
the law as it applies in the public and
private spheres. We have not been asked to examine the large constitutional
questions that
such an exercise would confront, in this re-evaluation. However
it is clear, even from this limited review, that the legislation
as it has
evolved carries certain public expectations which may have certain
constitutional implications. It would be fair to say
that there is more public
ownership, certainly by NGOs, of the Human Rights Act than the Bill of Rights
Act. Partly that is to do
with nomenclature. What the United Kingdom calls its
Human Rights Act is the New Zealand equivalent of the Bill of Rights Act. Our
Human Rights Act, in large part, is really an anti-discrimination statute. Both
of our Acts have jurisdiction over discrimination
matters. The aim of this part
of the Report is to try to restore some conceptual clarity about the respective
roles of the Human
Rights Act and Bill of Rights Act.
Primacy – the problem and how we got here:
- The
aim of the New Zealand Bill of Rights Act 1990, as with similar documents in the
constitutions of other countries, is to regulate
and limit the power
of
government and public actors. In New Zealand, unlike many other countries, a
decision was taken to preclude judicial review of legislation
– meaning
that it is not possible for a court to invalidate a law passed by parliament on
the grounds that it is inconsistent
with the Bill of Rights. But apart from that
feature, the New Zealand Bill of Rights Act 1990 serves much the same role as
equivalent
documents elsewhere: it creates a set of rights for individuals which
limit the power of executive government and public actors.
One of the rights it
confers, in s 19, is a right to be free from discrimination across the whole
range of governmental activity.
The Bill of Rights applies to the three branches
of government – executive, legislative and judicial and also to bodies
exercising
a public function (s 3). This means that government and public actors
have a corresponding duty not to discriminate. The Bill of
Rights is written at
a high level of abstraction. The meaning of the rights it affirms is to be
discerned and applied by judges and
others.
- The
Human Rights Act 1993 is different. It may be seen as the fulfilment of the
government’s obligations under the ICCPR, to
protect its citizens from
discrimination perpetrated by fellow citizens. The Act is written with the
private sector principally in
mind. It contains a detailed set of prohibitions
all reflecting the general principle affirmed in s 19 of the Bill of Rights Act.
It does not, in terms, prohibit “discrimination”. Rather, in the
areas to which it applies (goods and services, employment,
accommodation,
partnerships and so on) it prohibits treating people differently by reason of a
prohibited ground of discrimination.
- This
distinction between the two Acts is important. Unlike a prohibition on
“discrimination”, which readily accommodates
situations where
different treatment is justified for good reason, a simple prohibition on
treating people “differently”
may have all kinds of unintended
consequences. The Act recognises this by providing a series of exceptions
designed to allow instances
of “treating people differently“ where
it has been adjudged that it is right and proper to do so. Some of those
exceptions
aim to limit the reach of the prohibitions to the private
sector based on a judgment that the activity is sufficiently private that
government should not
intrude to regulate such matters e.g. in matters of
religious conscience, private clubs etc. Such exceptions, of course, will never
apply to government itself.
- The
Human Rights Act also seeks to regulate the public sector when it is acting as
an ordinary person. Indeed, some of the exceptions
attempt to anticipate when
government acting as employer should not be governed by the same rules as a
private employer e.g. in relation
to work involving national security, political
parties, and armed conflict. The important point is that the Human Rights Act
generally
identifies which actions of government should be treated like those of
ordinary individuals. It properly applies to government when
government is
acting as a private person, for example as an employer, or landlord, or as a
supplier of goods and services that are
analogous to those a private person
might supply.
- For
present purposes, the most difficult sphere in which the Human Rights Act
operates is “goods and services” (s 44).
Unlike the rest of the Act,
which is aimed at relatively narrow areas, “goods and services”
could conceivably cover a
great range of government activity. It is capable of
an interpretation broad enough to include not only those government services
that are analogous to those supplied by private persons (e.g. health care
services), but also those services that only government
as government can
supply (e.g. policing and immigration control). The provision, enacted 23 years
ago, has only recently become problematic as government
has increasingly used
private contractual forms for the delivery of public programmes and purposes.
Citizens are now often referred
to as “consumers” of government
services and private institutions have sometimes had a role in delivering public
programmes
on behalf of government.
- Once
the breadth of the term services is appreciated, the lines between public
and private as originally drawn in New Zealand anti-discrimination law tend to
lose their
coherence. The exceptions stated in the Act appear to be both over-
and under-inclusive. For example, s 44 does not itself contain
any “good
reason” exception (in contrast to many of the other sections). The only
specific exceptions relate to private
clubs. Conversely, the wholesale
exclusion of charitable benefits in s 150 may sometimes include a number of
bodies exercising public
functions that might otherwise be caught by s 44, and
would certainly be caught by the New Zealand Bill of Rights Act
1990.
- The
position then, is that both the Bill of Rights Act and Human Rights Act apply to
government. The former is specifically designed
to do so; the latter is well-
suited to do so when government acts in roles similar to those of private actors
but less so when government
acts as government.
- This
in turn has the result that the two statutes differ in terms of the standards
and processes that potentially govern similar acts
of government. Perceptions of
the relationship between them have become blurred. For the purposes of clarity,
the New Zealand Bill
of Rights Act 1990 should be regarded as stating the
general anti-discrimination principle to which government acting as government
should adhere and against which all enactments ought to be judged. The Human
Rights Act 1993 should be regarded as a detailed working
out of the
government’s duty to protect its citizens from discrimination perpetrated
by fellow citizens.
- As
a general principle, when the government is acting as an employer, landlord etc
it ought to be subject to the same standards as
a private person. When the
government is acting as government, or anyone is acting pursuant to a statutory
or public function, the
appropriate standard is that set by the New Zealand Bill
of Rights Act 1990. Any changes to anti-discrimination legislation should
reflect these basic starting points. Thus different standards may operate in
relation to government delivery of goods and services,
depending, for example,
on whether it is simply selling books in the ordinary market place or, say,
issuing passports. There are
a number of ways these principles could be
reflected in the legislation, which are detailed in the recommendations below at
page
47 of this report. There should also be a single entry point for complaints
relating to goods and services, whichever standard is
to apply (as detailed in
recommendation (vii) on page 49).
- It
is appropriate for the private sector (and government acting as ordinary person)
to be given specific guidance as to what is lawful
when differentiating between
people. The present prescriptive tenor of the Human Rights Act should remain,
subject to more guidance
as to the purposes for which the exceptions should
operate, and to more extensive consultations with the private sector and unions
than was possible within the short timeframe of this scoping exercise. The
Employment Court’s experience of the working of
the employment provisions
(at least under the old grounds) should also be taken into account. We make
specific
recommendations about greater use of the guideline making power at paragraphs 87
and 92 below.
- Any
detailed set of rules may have unintended consequences or fail to anticipate
genuine justifications. It would be helpful therefore,
to include something like
the s 97 general justification provision in Part II of the Act so that it may be
considered as part of
the conciliation process and not simply the adjudication
process as at present. A purpose clause should be included in Part II so
as to
provide guidance on the scope of the general exception. Superannuation and
insurance are discussed separately below at paragraph
88.
- It
is against this background that the questions of “primacy” should be
considered. Section 151 (1) of the Human Rights
Act states that the Act should
not limit or affect the provisions of any other Act or regulation that
is in force in
New Zealand. Section 151(2) exempts government from the
application of the new grounds of prohibited discrimination added in 1993.
The
provision is due to expire on 31 December 2001. The Terms of Reference require
this report to advise about what should happen
at that
date.
- The
Human Rights Bill 1993 included a clause stating that it would not override
existing Acts unless expressly stated. This became
s 151(1). This provision had
also been part of previous legislation. The Human Rights Commission in its
submission to the Select
Committee suggested that the clause was largely
unnecessary and that it was likely that most legislation would have already been
reviewed and brought into line. The Select Committee accepted that the clause
should be removed, but out of caution provided that
the provision should expire
on 31 December 1999. It inserted provisions in s 5 to establish the Consistency
2000 project. This aspect
of the Bill was not the subject of any widespread
public comment or discussion.
- The
Consistency 2000 exercise, together with developments in the Canadian law, has
raised expectations about what will happen upon
the expiry of s 151. On one
view, the Human Rights Act will simply no longer be subordinate legislation. It
may sometimes, but not
always, impliedly repeal legislation according to
ordinary rules of statutory interpretation. Under that scenario, the New Zealand
courts if
faced with a possible conflict between the Human Rights Act 1993 and an Act or
regulation, would attempt as far as possible to give
effect to both.
- For
example, if there were a conflict between the Human Rights Act and the Health
and Safety in Employment Act, it is likely that
the courts would seek to
reconcile them when interpreting the scope of “reasonable
accommodation”. In the event of a
more direct inconsistency, such as
between the Human Rights Act and a statute containing a compulsory retirement
age for people holding
tenured office, the courts would be likely to give effect
to the more specific statute rather than the Human Rights Act (in accordance
with ordinary statutory interpretation principles, which prefer the specific
provision to the more general one). That approach would
not depend on when the
age specific statute was passed. On the basis that repeal of s 151 merely
removes the subordinate status of
the Human Rights Act, the New Zealand Courts
would be likely in the event of direct conflict to follow the Australian
approach (illustrated,
for example, by Ware v Secretary, Commonwealth
Department of Family and Community Services 8 May 2000, Human Rights and
Equal Opportunity Commission).
- Though
the issue was not raised at the time s 151 was enacted, there is now speculation
that the expiry of s 151 will not only remove
the subordinate status of s 151,
but give it “primacy” over all other statutes. “Primacy”
is a Canadian concept
used to refer to clauses in statutes that purport to
declare that the statute containing the clause is supreme over other statutes,
future as well as past, unless the conflicting statute expressly says otherwise.
Such clauses are intended to defeat the doctrine
of implied repeal, under which
a later statute would impliedly repeal an inconsistent earlier statute to the
extent of the inconsistency.
Such clauses contained, for example, in the
Canadian Bill of Rights and Quebec Charter of Rights and Freedoms have been held
to be
effective. Indeed, the Supreme Court has gone so far as to hold that human
rights legislation takes precedence over inconsistent
later statutes even
without such a primacy clause.
- The
authority for this last proposition is Re Winnipeg School Division no 1 and
Craton (1985) 21 DLR (4th) 1. The Manitoba Human Rights code
which prohibited discrimination on the ground of age was found by the Supreme
Court of Canada
to prevail over the later Public Schools Act which allowed
school boards of trustees to fix a compulsory retirement age for teachers.
The
provision
of the Public Schools Act was thereby rendered ineffective. The Court departed
from what would be considered in New Zealand to be
the usual rules of
interpretation. It was influenced by the fact that the only reason the Public
Schools Act was considered to be
a later Act in time than the Human Rights Code
was because the original provision in the 1970 Public Schools Act had been re-
enacted
in the 1980 Consolidation. The periodic technical act of consolidation
was not considered sufficient evidence of Parliamentary intention
to impliedly
repeal the Human Rights Code.
- The
Court in Winnipeg said that, because “human rights legislation is
of a special nature and declares public policy regarding matters of general
concern”, it may not be repealed or amended “save by clear
legislative pronouncement”. The case raises the possibility
that in a
contest between conflicting statutes, courts would have regard to what the
Canadians refer to as the “quasi-constitutional
character” of human
rights statutes, and be persuaded to apply the Human Rights Act in preference to
an apparently inconsistent
enactment whatever its date and however specific.
While there has been some limited acceptance of the quasi- constitutional
character
of human rights legislation in New Zealand, the more far- reaching
aspects of the judgment would not necessarily apply and should
be viewed as
integrally connected with Canada’s constitutional
arrangements.
- Unlike
the New Zealand courts, the Supreme Court of Canada routinely exercises its
powers under the Charter of Rights and Freedoms
to strike down legislation that
is inconsistent with its provisions – including s 15 which guarantees
equality before the law.
In the Manitoba case, the Human Rights Act was used as
a short cut to a Charter result. (Although oddly enough, when the Supreme
Court
looked at the merits of compulsory retirement it came to a different decision in
Dickason v Governors of the University of Alberta (1992) 95 DLR
(4th) 439 SCC).
- Under
New Zealand’s current constitutional arrangements it is far from
inevitable that on the repeal of s 151, the Human Rights
Act would be given such
a reading. The orthodox view has been that the courts should not give effect to
even an express provision requiring a statute to be given primacy (see
Vauxhall Estates v Liverpool Corporation [1932] 1 KB 733). Such judicial
reluctance has been founded on the basis that a provision of this kind binds
future Parliaments to a particular manner
and form by which legislation can be
passed. To have effect,
conflicting legislation would have to contain a “notwithstanding”
clause expressly overriding the primary statute. The
courts may now be more
willing to give effect to a primacy clause depending on its subject matter and
the rigour of the process of
enacting the primacy clause itself (whether, for
example, a super-majority in Parliament agreed to it).
- However,
given that our principal rights protecting instrument, the New Zealand Bill of
Rights Act 1990, currently cannot be read
by the courts to prevail over
inconsistent statutes, it would be incongruous if one of the rights protected in
it were given status
over all the others. It would be similarly incongruous for
a constitution to give greater status to a Human Rights Act than a Bill
of
Rights Act. And it would be against the general tenor of the rest of this report
to treat discrimination differently from the
rest of the rights (such as the
right to vote) protected in the ICCPR and incorporated in the New Zealand Bill
of Rights Act. The
status of the Human Rights Act is intimately linked to the
status of the New Zealand Bill of Rights Act, and as a matter of principle
it
should be so. Moreover, for the reasons stated in paragraphs 25-33 above, the
question of whether an enactment is good or bad
law, judged against the
anti-discrimination principle, is a matter properly to be decided under the
standards set in the New
Zealand Bill of Rights Act 1990. It is not a matter
that can be resolved in a Human Rights Act conciliation process between an
individual
and government.
- That
said, it is recommended that s 151 of the Human Rights Act be repealed. The
repeal of s 151 is unlikely by itself to give the
Human Rights Act primacy over
other statutes. It is not recommended that the Human Rights Act be amended to
include a “primacy”
clause, given the current status of the
New Zealand Bill of Rights Act. The “primacy” debate, if there is to
be
one, should rightly focus on the status of and standards set by the New
Zealand Bill of Rights Act. Any potentially discriminatory
enactments, or
actions pursuant to statutory authority or the prerogative, ought to be assessed
against those standards.
What is the status of the New Zealand Bill of Rights Act
1990?
- The
Bill of Rights does not have the status of supreme law. A special majority in
Parliament or referendum would be needed to give
it such a status. A proposal
explicitly to do so was rejected in 1988 and 1990 when the Bill was enacted by
Parliament with a bare
majority. While s 4 makes explicit that the Bill of
Rights cannot impliedly repeal or render ineffective other statutes, in
practice
the New Zealand Bill of Rights Act has a significant effect on
statutes and regulations, and even more so on government practices.
Read
together with s 6, s 4 of the Bill of Rights Act is not strictly the
functional equivalent of s 151 of the Human Rights Act.
The Bill of Rights can
affect, limit, and sometimes augment statutes and regulations. If it is possible
to read a statute consistently
with the rights protected in the Bill of Rights,
there is a legislative injunction to do so. However, if that is not possible
because
of direct conflict, the conflicting statute continues to have
effect.
- The
New Zealand Bill of Rights Act is only a decade old and much of the early case
law has involved the application of the criminal
law. Remedies in that sphere
have been developed to include exclusion of evidence and damages remedies for
Bill of Rights breaches.
Its potential to contribute to the civil law is still
largely unrealised. The Court of Appeal has so far only considered a handful
of
civil law cases. However, there is a developing jurisprudence to the effect that
broad powers in statutes will be read restrictively
so as to give effect to the
rights protected in the Bill of Rights Act. Such an argument would be available
to challenge the exercise
of a broadly worded power that discriminated on
prohibited grounds. The New Zealand Bill of Rights Act would require the power
to
be interpreted restrictively so that its use would not unreasonably limit the
right to be free from discrimination. The same reasoning
could also be applied
to provisions empowering the making of regulations - potentially effectively
rendering regulations, or an interpretation
of them, ultra vires or
void.
- The
detailed proposals which follow provide a publicly funded avenue for such Bill
of Rights challenges to be made in cases where
the government has allegedly been
discriminatory in its practices, and in the exercise of broad statutory powers.
While the proposal
ensures that the standard to be applied is the same across
all the rights protected in the Bill of Rights Act, this does have the
effect of
elevating
anti-discrimination concerns over other protected rights to a limited extent.
That is inevitable given the expectations surrounding
the Human Rights Act and
the Human Rights Commission’s Consistency 2000 audit project
(discussed below).
- Whatever
the unexplored potential for Bill of Rights challenges, it is still the case
that if a statute directly conflicts with the
Bill of Rights in a way that
cannot be justified, then the conflicting statute continues to have effect.
There are very few cases
genuinely in this category. Recently some members of
the Court of Appeal have indicated that they may be willing to make declarations
of inconsistency for such unjustified breaches (see, for example, Moonen v
Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, and R v Poumako
(CA, 31 May 2000) in which one Justice made a declaration of inconsistency).
Declarations, if used sparingly and not in relation to
matters involving fine
judgments, have the potential over time to acquire such moral force as to make
it difficult for Parliament
to ignore them. The practice of making judicial
declarations of inconsistency under these conditions has the potential to
enhance
constitutional values and the level of trust between Parliament and the
judiciary.
- Although
agreeing with this analysis, one member of the review team (Hunt) points out
that, as it was recently put by Lord Cooke of
Thorndon, the Bill of Rights Act
“is regarded internationally as one of the weakest affirmations of human
rights”. One
element of this weakness is s 4, whereby an ordinary statute
may prevail over fundamental civil and political rights which are guaranteed
under international law. The UN Human Rights Committee, which monitors New
Zealand’s implementation of ICCPR, has criticised
New Zealand for this
feature of its domestic legislation.
- Accordingly,
this member of the review takes the position that s 4 should be amended to
create a procedure by which Courts may declare
that a statute is incompatible
with the Bill of Rights Act, while leaving Parliament to decide what, if any,
action to take in respect
of the statute concerned. Such declarations of
incompatibility would maintain the legislative role of Parliament and the
supervisory
role of the Courts. They would be consistent with the scheme of the
Bill of Rights Act which is designed to provide guiding lights
to the executive
and legislature. In the UK, the Human Rights Act (1998) has recently provided
for declarations of incompatibility.
In the opinion of one member of the review
team,
the Court of Appeal’s recent moves towards declarations of incompatibility
should be reinforced by an appropriate amendment
to s 4 of the Bill of Rights
Act.
- The
others were of the view that, as the matter had not been properly canvassed with
relevant interests during the re-evaluation process,
it was not appropriate to
offer a specific recommendation on the subject and that it would be best for the
moment to leave the judicial
practice to evolve. Lack of trust between
Parliament, the electorate and the judiciary was one of the main reasons the
original
proposal to entrench the Bill of Rights was defeated. Careful judicial
development of a declaration power, together with our other
proposals, has the
potential over time to help grow our constitution and to develop that trust
– and it may be all that is
necessary. As has recently been seen,
constitutions are much more than words on paper and fundamentally depend on a
shared sense
of values. The Bill of Rights has up to now been seen rightly or
wrongly as a “drunk- drivers’ charter”. For it
to be valued,
it needs first to appear to offer something to all New
Zealanders.
- Ultimately,
it is the normative force of a finding of direct conflict with the Bill of
Rights that is more important than mechanisms
by which to enforce it. If
declarations of inconsistency were commonplace or Parliament routinely ignored
them, and included clauses
such as “Notwithstanding the Bill of Rights
Act”, our shared sense of constitutional values would hardly be
enhanced.
- As
a consequence of the recent judicial developments, thought should be given to
amending Parliamentary standing orders to require
that any judicial declarations
of inconsistency be referred to a special Select Committee for
consideration.
- The
focus of the recommendations in this report is on the changes needed, at this
point of time, to encourage and assist principled
examination of legislation to
ensure that different treatment is based on sound social justification
consistent with the relevant
international human rights
instruments.
Relationship between the Treaty of Waitangi and human rights
law:
- There
is broad support for the view that the Treaty of Waitangi marked the beginning
of constitutional government in New Zealand or
is the country's founding
constitutional document. The White Paper on the Bill of Rights for New Zealand
(1985) advocated the incorporation
of the Treaty into an enforceable bill of
rights. At the time that proposal did not proceed. The possible incorporation of
the Treaty
into domestic New Zealand law remains a live constitutional issue but
one that is outside the scope of this review.
- Irrespective
of that larger issue, there is a strong case for improving understanding of the
linkages between the Treaty and human
rights. Many of the fundamental principles
and rights upon which New Zealand was founded, and which were encompassed by the
Treaty,
were subsequently developed and articulated in the Universal Declaration
of Human Rights. But the human rights dimensions of the
Treaty, and the
relationship between them and the domestic and international law relating to
human rights, has received relatively
little attention. This is
unfortunate.
- For
example, an understanding of Article 2 of the Treaty might be informed by
section 20 (right to culture) of the New Zealand Bill
of Rights Act, the
international jurisprudence generated by article 27 (right to culture) of the
International Covenant on Civil
and Political Rights, and article 15 (right to
cultural life) of the International Covenant on Economic, Social and Cultural
Rights.
The inter-relationship between the Treaty, section 73 (measures to
ensure equality) of the Human Rights Act, and articles 2 (non-discrimination),
26 (equal treatment) and 27 (right to culture) of ICCPR, is another matter that
could benefit from discussion. More generally, and
partly because of the Treaty,
New Zealand has rather more experience and understanding of the relationship
between individual rights
and collective rights than many other countries.
Further discussion of the role of the Treaty in the human rights context may
well
enable constructive contributions to this subject at the international
level.
- The
NHRI proposed in this report would be well placed to encourage discussion on the
relationship between the Treaty and human rights,
and the legislation should be
amended to give it this specific function.
Affirmative Action:
- There
are different tests for affirmative action in the Human Rights Act and the New
Zealand Bill of Rights Act. These tests should
be aligned. In particular the
affirmative action provision in the New Zealand Bill of Rights Act differs from
that in the Human Rights
Act in important ways and perpetuates the confusion
between the two Acts which this report seeks to rectify.
- Section
19(2) of the Bill of Rights Act allows:
“Measures taken in
good faith for the purpose of assisting or advancing persons or groups
disadvantaged because of discrimination
that is unlawful by virtue of Part II of
the Human Rights Act 1993 do not constitute discrimination.”
Allowing affirmative action measures only when disadvantage has been caused by
discrimination that is unlawful under the Human Rights
Act, is potentially a
much narrower test than that under the Human Rights Act. That Act merely
requires a person to belong to a disadvantaged
group which needs assistance to
achieve an equal place with others. The reference in the Bill of Rights Act to
the Human Rights Act
is obscure. Part II of the Human Rights Act refers not to
“discrimination” but rather defines certain acts as unlawful.
And as
this Report has emphasised, it only applies in certain limited areas.
- In
practice it is possible to read the Bill of Rights affirmative action provision
to allow a broader range of measures than first
appears – by giving
substantive content to the concept of “discrimination” (as was
suggested in the White Paper
on the Bill of Rights). By suggesting in Coburn
v Human Rights Commission [1994] 3 NZLR 323 that the purpose of s 73 was to
encourage the rectification of past injustice, Thorp J has also helped to align
the two tests.
- A
consequential amendment will be required to the Bill of Rights Act provision if
a new Human Rights Act were to be enacted. That
would be an opportunity to
clarify the test to be used. Such an amendment should realign the tests –
perhaps drawing on the
language used in the Canadian
Charter.
- Under
the 1977 Human Rights Commission Act, organisations could submit affirmative
action schemes to the Human Rights Commission for
advice and approval. That
function should be restored to the new NHRI.
The Consistency 2000 Project:
- Section
5 of the Human Rights Act 1993 required the HRC:
“(i) To
examine, before the 31st day of December 1998, the Acts and
Regulations that are in force in New Zealand, and any policy or administrative
practice of the
government of New Zealand;
(j) To determine, before the 31st day of December 1998, whether
any of the Acts, regulations, policies, and practices examined under paragraph
(i) of this subsection
conflict with the provisions of Part II of this Act or
infringe the spirit or intention of this Act.”
- The
audit review carried out by the Human Rights Commission and Government
departments was called “Consistency 2000”,
and involved an initial
self-audit by each Government department followed by an examination and final
determination by the Human
Rights Commission. In 1997 the Government of the day
decided to review the Consistency 2000 project in light of the significant
resources committed to the project, and preliminary indications that many of the
main areas of inconsistency were minor or repetitive
in nature. The Government
then decided not to continue with the review in its original
form.
- In
1998 the Government of the day introduced the Human Rights Amendment Bill
(No.1). This Bill was designed to implement the Government’s
decisions and
also contained exemptions for specific government activities. However, due to a
lack of support in the House, this
bill was not enacted. To meet its statutory
obligation, the Human Rights Commission submitted a report on the determinations
that
it was able to make on audit material from six departments before 31
December 1998.
- Opposition
to the Bill led to further negotiations. These political discussions resulted in
the preparation and passing of the Human
Rights Amendment Act 1999. This
Amendment Act essentially extended the expiry of section 151 for a further two
years and created
a new statutory reporting obligation on the Government. The
obligation was broadly worded to require the Government to regularly
report on
progress made on “remedying significant inconsistencies” between
existing legislation and the HRA. These reports
must be tabled in the House of
Representatives every 6 months and must include any written comments on the
report that have been
made by the Human Rights Commission. The first of these
statutory reports was tabled in June this year.
- The
aim of the original Project, to identify those Acts, regulations, policies and
practices which unjustifiably breach the right
to be free from discrimination,
is undoubtedly a laudable one. However, there have been a number of real
difficulties with the project
in practice. In hindsight it was overly ambitious.
The audit reported large volumes of material without any systematic method of
prioritising the pressing issues, and on matters in the abstract, which were
only potentially discriminatory. It judged practices
against a Human Rights Act
standard when the Bill of Rights Act provided the appropriate standard. That was
compounded by the fact
that there is no case law on what distinctions may be
justified by the general exception in the Human Rights Act. The Human Rights
Commission has never had jurisdiction over or experience in defining the scope
of the general justification and only one case has
ever been decided on the
point at the CRT.
- As
has already been identified, the Human Rights Act only covers a number of
limited areas – rather than the whole of government
activity. Those
statutes that conflict with the core areas of the Act are actually rare. The
audit however, took a very broad view
of this (invoking the “spirit and
intention” of the Act as required by s 5) and looked at the range of
government activity.
As this report has already emphasised, the proper standard
by which to assess these broader forms of government activity is that
set out in
the New Zealand Bill of Rights Act 1990 and not the Human Rights Act. That is
not to say that some of the information
collected in the exercise is not
valuable and that on occasion those standards will not overlap. Nevertheless a
great deal of confusion
has resulted. A clear signal to remedy that confusion
must be given.
- Take
for example the compulsory retirement age of judges. Judges are not covered by
the Human Rights Act because they – like
others appointed under the
prerogative - are not strictly “employed”. However, the relevant
provisions of the Judicature
Act were reported as possibly inconsistent
according to the spirit of the Human Rights Act. It must be relevant to that
assessment
that, being themselves a branch of government, Judges hold tenured
office, and cannot be removed except in very narrow constitutionally
defined
circumstances. Such positions do not have any private sector analogue. Hence
there is no specific exception in the Human
Rights Act and there will never be
any jurisprudence under s 97 – the present general exception – which
could help. Such
a provision would almost certainly meet a Bill of Rights Act
justification test which requires the limit to be “demonstrably
justified
in a free and democratic society” – and yet fail a Human Rights Act
one. There are many examples to similar
effect.
- An
even more serious matter is that raised in relation to social assistance
payments. As has been already noted, the Human Rights
Commission took the view
that s 44 could potentially cover such “goods and services”. That
view has never been judicially
tested. Section 44 makes it unlawful for a
person:
“who supplies goods, facilities or services to the
public or to any section of the public to treat any other person less favourably
in connection with the provision of those goods, facilities, or services than
would otherwise be the case by reason of any of the
prohibited grounds of
discrimination”.
There is no relevant specific exception in this provision – again because
it was not designed for the core public sector. There
can be no argument that
social assistance is not covered by the Bill of Rights Act. It clearly applies
to all executive action. Such
benefit legislation should be subjected to a Bill
of Rights standard where the issue would be whether it constituted unlawful
“discrimination”
under s 19. It is most likely that the issue would
be resolved by considering the definition of “discrimination” (as
in
Thomas J’s judgment in the Quilter decision) and without necessary
reference to the concept of reasonable limits in s 5 of the Bill of Rights Act.
However, if recourse
were had to s 5, then the substance of the inquiry would be
much the same. In a matter concerning social security, the presence of
statutory
authority to give a ministerial direction
would be sufficient to fulfil the “prescribed by law standard” (it
being a matter of substance rather than form, see
for example Slaight
Communications v Davidson (1989) 59 DLR (4th) 416 (SCC)). The
policy would then be required to satisfy a reasonable limits test to
assess:
(i) whether the importance and significance of the
objective was enough to warrant the limitation of the protected right; and
(ii) whether the way in which the objective was sought to be achieved was
rational and in reasonable proportion to the importance
of the objective;
and
(iii) whether there was as little interference as possible with the right or
freedom affected.
- Measured
against such a standard, a wider range of factors can and should be taken into
account than would be appropriate under a
Human Rights test. For example, it may
be relevant that a targeted benefit can be justified as an attempt to cushion a
person temporarily
after a drastic change of circumstances. A benefit might be
justified because it applies to a particular age-defined cohort of, for
example,
married women who never held paid employment outside the home. It might be
justified on the basis of its incentive effect.
In the assessment of such
legislation, other international commitments such as to the rights of the child,
may also be relevant.
On other occasions, distinctions may not be justified
– for example, in situations which contemplate that only women could
be in
the position of primary care giver, or that assume a narrow conception of family
arrangements, and ignore patterns of economic
dependency.
- It
should be emphasised that compliance with the Bill of Rights Act anti-
discrimination standard should have the effect of making
social policy more
robust and rational, and ensure that targeting is more strongly based on
empirical evidence. Discrimination law
should not be used as the justification
for the adoption of individual entitlements to social assistance. It is also
important to
caution against Bill of Rights assessments being drawn too narrowly
– focusing on a single area of social assistance and ignoring
interconnected factors such as tax policy. Over the long term the Social
Security Act will need to be revised. The principal Act
relates to an idealised
1950s version of the family. That will be a large task.
- It
would be a mistake to think of Bill of Rights compliance as a merely technical
exercise. Many complex and sometimes highly political
issues are raised. If
discrimination is found in the social security case (for example), compliance
does not dictate that everyone
should be raised to the highest level of benefit
– some people may in fact be relatively worse off than previously. If a
human
rights audit were to report on discrepancies in the legislative
recognition of the age of responsibility, that would hardly by itself
compel
Parliament to revisit the minimum drinking age laws so soon after so much heated
public debate.
- The
proposals we make offer the following solutions to these problems. They will
help to identify areas of real priority in three
ways – through the
ordinary complaints process; through the new National Human Rights
Institution’s strategic focus under
Part I of the new Act; and through the
proposed National Plan of Action. They enable the correct standard to be
applied, and jurisprudence
to develop.
- The
experience over Consistency 2000 demonstrates that an audit that is too
difficult to operate ultimately results in a rush to obtain
exemptions rather
than to improve policies. Exemptions cannot be obtained from the Bill of Rights
Act in that way. It applies to
everything the government does. At the same time
it offers a more nuanced standard against which to judge compliance – and
against some decided cases.
- The
lack of jurisprudential guidance has proved particularly problematic in the
Consistency 2000 process given the abstract nature
of many of the issues raised.
It may be, for example, that a statute itself is not inconsistent, but that it
would be possible to
interpret the statute in an inconsistent way. These
instances were also reported. Under the proposals outlined in this report, it
would be possible to make a publicly funded challenge to an unreasonable
interpretation of such a provision (again measured under
a Bill of Rights
standard and clothed in a set of real facts).
What should happen in the mean time?
- The
original purpose of the Consistency 2000 audit, or database, was to identify
possible areas for second phase consideration. Enough
has now been done by way
of identifying problematic areas. Even though it was not as thoroughgoing as
originally conceived, a legislative
audit is never likely to be an exhaustive or
definitive way of identifying areas of inequality. Significantly, the most
pressing
issue of equality recognised by the present government was not
signalled by the Consistency 2000 project at all. Undoubtedly the
disparity in
economic health and educational status between Mäori and the rest of the
population is a major issue facing New
Zealand today. Neither did the audit
particularly raise as a concern the issue of indirect discrimination against
women. A legislative
project such as this is no substitute for empirical
research, monitoring effects of legislative changes, and good policy
analysis.
- In
terms of the narrower legislative focus, new problem areas can be identified via
the Attorney General’s monitoring of legislation
for Bill of Rights
compliance, and through the Human Rights Organisation complaints and other
strategic mechanisms. The latest report
from the Ministry of Justice dated June
2000 eliminates all but the most egregious problems. The programme should move
to its second
phase as originally contemplated.
- The
Consistency 2000 report identifies a number of themes that require further
consideration through processes designed to deal with
the particular concerns.
They include: the position of same-sex couples and questions of family status;
disability issues –
including distinctions between different types of
disability; and youth issues – especially relating to the age of
responsibility.
- Some
of the substantive work has already been done - including the Law Commission
work on same-sex relationships and the proposal
to extend the Matrimonial
Property Act to include de facto and same-sex relationships. The personal
grievance provisions in the Employment
Relations Bill have now been aligned.
There are a number of other processes in train to deal with these matters in a
systematic and
ongoing way. The Disability Strategy Group, and the Ministry of
Youth Affairs work on UNCROC, should drive further reform in those
areas. It
should be noted here that UNCROC may demand more
differentiation on the basis of age rather than less (for example it restricts
involvement in armed combat to those 18 and over).
While this re-evaluation was
in its late stages, the Minister of Social Policy announced there would be a
review of the benefit system
– which will be an opportunity to address
many of the more difficult remaining issues in the context of social
assistance.
- Much
now depends on political will. Consultations revealed that particular Ministers,
whose departments potentially confront quite
complex issues, are committed to
addressing human rights concerns. The focus now should be on ways in which
actual conflicts can
be rectified. Departments will need help in this exercise
and possible solutions should be shared among departments facing similar
problems. While the Ministry of Justice has produced useful guidelines for
policy advisers, more specific help in solving problems
still needs to be given.
In practical terms, if the issues surrounding resources can be resolved, it
would clearly be of considerable
assistance if officers from the Bill of Rights
monitoring team could be allocated to assist departments. Departments grappling
with
these issues may also be assisted by outside help.
Specific matters: Insurance and Superannuation
- A
number of stakeholders expressed the view that the scope of the exceptions in
the Act should not be expanded. Given the restricted
time frame of the re-
evaluation exercise, we are not in the position to make detailed recommendations
about the nature and extent
of the exceptions. Those matters should be the
subject of a separate more extensive consultation process. The more limited aim
of
this report is not to restrict or expand the exceptions but rather to
encourage the development of jurisprudence, general principles,
consistency and
standard setting so that best practice in human rights will be better and more
widely understood. Thought should
also be given to including more legislative
examples in the new Act, and general principles that indicate factors that would
justify
treating people differently (as in many of the Canadian
statutes).
- The
Bill of Rights Act and Human Rights Act provide an exclusive list of prohibited
grounds of discrimination. Some constitutional
instruments such as the Canadian
Charter of Rights and Freedoms, give the listed grounds of discrimination as
examples and allow
the possibility for new grounds to be judicially recognised.
It may be desirable for the grounds in the Bill of Rights Act to be
similarly
indicative rather than exclusive. The Human Rights Act, being of a more
prescriptive character, would have to be specifically
amended in the event that
a new ground was so recognised. Again, this may be a matter which should be
pursued in a more thorough-going
process of consultation.
- Consultations
with stakeholders and staff of the human rights organisations revealed that
because the complaints process focused on
individuals and the results of such
processes were confidential, there was little chance to develop general
standards. The HRC has
periodically produced guidelines on, for example,
insurance and pre-employment, and case notes, with individual identifiers
removed.
Increased effort in this area should be encouraged. Particular areas
identified as needing attention are affirmative action, and
the scope of the
“reasonable accommodation” clause in relation to disability. Such
guidelines (as now) would not be binding
and could be challenged in the
Tribunal.
- Insurance
and superannuation pose particularly technical issues. For example when
determining the funding of superannuation schemes,
actuaries routinely take
account of age and gender related factors in respect of a number of
contingencies such as probability of
death, disablement, retirement, withdrawal,
being married and level of expected salary growth. In terms of benefit levels,
section
70 permits different superannuation benefits based on age and gender but
only in relation to probabilities of death and disablement.
This is a problem
when calculating accrued benefits under defined benefit schemes due to members
on the winding up of a scheme, on
members becoming redundant, or as a basis of
defining scheme surplus. In short, the funding of such schemes is based on a
range of
assumptions not available when distributing benefits. Under the New
Zealand Act, members cannot be allocated their actuarial interest
in the scheme
according to the funding basis, as is the worldwide actuarial
practice.
- The
health insurance industry used to allocate and fund risk by selecting its
members. The Human Rights Act has restricted this practice
by making it
illegal
to refuse a person insurance. Another means of risk and funding allocation might
be to charge higher premiums according to age bands,
or on each progressive
birthday as is the established actuarial practice. However, such an approach may
be in violation of the prohibition
on age discrimination in the Human Rights
Act.
- An
obvious solution to the apparent age discrimination would be for everyone to be
charged more. New York State adopted such a “community
rating”
system by which medical insurers were required to accept all applicants using
flat premiums and no adjustments for
age or sex. Pre-existing conditions were
covered after a 12-month period. Subsequently enrolment dropped and the average
age rose.
Many companies were forced out of the market.
- It
is not suggested that such a result is imminent here (age, sex and disability
can be taken into account under the present Act).
But these are complex and
potentially volatile areas. New Zealand is reliant on the offshore reinsurance
market and overseas demographic
tables. While New Zealand shares with other
countries an ageing population, we are unique in that our young people presently
leave
in large numbers, and in that New Zealand expects a very rapid growth in
the numbers of young Mäori and Pacific Islanders. Issues
such as insurance
have the potential to raise serious inter-generational equity matters that New
Zealand may not wish to determine
once and for all. This will become all the
more contestable in an era of genetic testing.
- Where
the issues are particularly technical, such as in the insurance and
superannuation sectors, the relevant sectors should be encouraged
to submit
their own best practice guidelines for endorsement by the Commission, perhaps
with the assistance of the Government Actuary.
- The
demographic and inter-generational equity matters raised in relation to
insurance have more widespread application. The notion
of age discrimination
raises distinct and often philosophical issues about the nature of equality, and
whether it should be measured
over a whole life. These issues have been the
subject of heated scholarly debate. The recent Canadian Report on Human Rights
also
expressed concern about the effects of removing compulsory retirement,
particularly in areas such as universities. It suggested that
such effects
should be
monitored. Similar monitoring should occur here, perhaps by the ministries of
social policy and health.
The New Zealand Bill of Rights Act and the ICCPR
obligations:
- A
recurrent theme throughout the Terms of Reference is the place of international
human rights in New Zealand's domestic law and practice.
As already discussed,
New Zealand has ratified a number of key international human rights treaties.
Article 31(1) of the Vienna Law
of Treaties (1969) requires New Zealand to
implement these treaties in good faith. It is not within the Terms of Reference
to consider
in any detail the effectiveness of the domestic implementation of
specific treaties that New Zealand has ratified. This is an appropriate
task for
a National Plan of Action development process.
- However,
it should be noted that there are some inconsistencies between the relevant
provisions of the New Zealand Bill of Rights
Act (NZBORA) and the ICCPR. For
example, the ICCPR has specific provisions relating to equality (articles 3 and
26), the right to
privacy (article 17), non-discrimination on the grounds of
language (article 2), and the right to an effective remedy (article 2(3));
there
are no equivalent specific provisions in the NZBORA.
- It
is clear that the courts have done much to develop appropriate remedies –
such as the prima facie exclusion rule and Baigent style compensation.
Nevertheless, given that the ICCPR represents the most fundamental civil and
political rights, it would be appropriate
to re-examine the relevant New Zealand
legislation to consider if it could more directly reflect the language of the
Covenant.
Recommendations:
The
‘Primacy’ of New Zealand’s human rights laws
(i) To make clear that what is presently Part II of the Human Rights Act is
concerned with only one aspect of human rights, it should
indicate by headings,
that it contains the anti-discrimination provisions.
(ii) Unions and employers ought to be consulted as to their
experience of the current employment provisions. Further consultation
about the
scope of the present exceptions should be undertaken.
(iii) The general justification provision in s 97 should be
moved to what is currently Part II of the Act. It should no longer take
the form
of a dispensing power. It should be read against a purpose section in Part II of
the Act which refers to the government’s
positive obligation to provide
protection for citizens against discrimination by fellow citizens – and in
particular:
To protect people from disadvantage caused by arbitrary distinctions based
on prohibited grounds and other distinctions which result
in systemic
disadvantage; and
To encourage measures to improve the condition of the
vulnerable and disadvantaged.
(iv) There should be a general audit of the specific exceptions
contained in the Human Rights Act 1993 to ensure that they are not
over or
under- inclusive. The exceptions should be tested against the purpose clause,
and the scheme of the Act, which focuses on
the private sector and the
government acting as ordinary person. The exception for charitable instruments
should be made subject
to whether the power exercised satisfies the
“public function” test in s 3(b) of the Bill of Rights Act. If so,
any potentially
unlawful discrimination should be assessed against a Bill of
Rights standard.
(v) Section 151 of the Human Rights Act should be repealed.
The repeal of s 151 is unlikely by itself to give the Human Rights
Act primacy
over other statutes. It is not recommended that the Human Rights Act be amended
to include a “primacy” clause,
given the current status of the New
Zealand Bill of Rights Act. The “primacy” debate, if there is to be
one, should rightly
focus on the status of and standards set by the New
Zealand Bill of Rights Act. Any potentially discriminatory
enactments, or actions pursuant to statutory authority or the prerogative, ought
to be assessed against those standards.
(vi) The question of whether an enactment discriminates is a
matter properly to be decided under the New Zealand Bill of Rights Act
1990
which is designed for such a purpose. The question of whether a statute
unreasonably limits the right to be free from discrimination
is not a suitable
matter to be resolved by a conciliation process between an individual and
government. Matters involving the government
acting pursuant to statute may be
the subject of negotiation in limited cases (rather than conciliation).
Ultimately the question
will be one of law, which should be determined by
adjudication.
(vii) While Acts and regulations should be held to a Bill of
Rights standard, it will not usually be obvious to a complainant whether
the
government is acting under statutory authority. Consultations were unable to
reveal how many complaints the HRC had received
in which the government was
acting under statute. It will always be difficult to identify such cases at
first call. A number of NGOs
expressed a view that as far as possible they
desired a single point of entry for complaints. Accordingly it is recommended
that
all such claims could be taken initially to the proposed new NHRI, and be
referred on to the Proceedings Commissioner in the usual
way. At the Tribunal
stage, once the issues have crystallised, cases should be sent to the High Court
by way of case stated –
to consider the consistency of an enactment
against the Bill of Rights Act.
One way of doing this would be to provide that:
If the
Tribunal is satisfied in proceedings before it that it must decide whether the
Human Rights Act prevails against an inconsistent
statute or regulation, it must
state a case to the High Court.
(viii) An amendment should also be made to the effect that on
such references, the High Court must decide whether the Act or regulation
is
inconsistent with the New Zealand Bill of Rights Act.
(ix) Part II should make explicit that when a person is acting
under statutory authority or the prerogative her actions should be
assessed
against the New Zealand Bill of Rights Act 1990. The Bill of Rights standard is
flexible enough to allow different standards
of conduct according to whether the
government is acting as government or is in a similar position to that of a
private person.
(x) In cases in which private sector respondents are relying on
statutes to justify otherwise unlawful discrimination, the Attorney
General
should be given notice of the proceeding and may in appropriate cases choose to
appear at the Tribunal.
(xi) In certain important cases, the new NHRI may elect not to
refer a case to the Proceedings Commissioner but rather instruct its
own counsel
to take the matter directly to the Tribunal.
(xii) Section 153(3) (relating to immigration) should be
repealed. These matters are already covered by the New Zealand Bill of Rights
Act.
Encouraging discussion of the relationship between the Treaty
of Waitangi and human rights law
(xiii) Section 5 of the Human Rights Act should be amended to give the new
organisation this specific additional function. Technically,
this function is
already implicit in section 5. But it would seem appropriate to make it
explicit. The function might be expressed
to read as follows:
To promote, by research, education and discussion, a better understanding
of the human rights dimensions of the Treaty of Waitangi
and their relationship
with domestic and international human rights law.
(xiv) In addition, and consistently with the recognition that
the Treaty is a human rights document, it is suggested that the Treaty
be added
to the Long Title of the Act, which at present refers only to "United Nations
Covenants or Conventions on Human Rights".
Under this proposal the Long Title
would read:
An Act ... to provide better protection of human rights in
New Zealand and in general accordance with United Nations Covenants or
Conventions on Human Rights and the Treaty of Waitangi.
Affirmative Action
(xv) The affirmative action tests in the Human Rights Act 1993 and the
New Zealand Bill of Rights Act 1990 should be aligned.
(xvi) The Human Rights Act should be amended to empower the NHRI
to approve affirmative action schemes.
The Consistency 2000 project
(xvii) The Justice and Law Reform Committee should have a continuing role
– and progress on specific themes should be reported
to it on a periodic
basis.
(xviii) Subject to resolution of the relevant resource issues,
officers from the Ministry of Justice Bill of Rights monitoring team
should be
allocated to help departments find solutions. Outside help might also be
sought.
(xix) A pool of information should be made available to
departments struggling with similar problems – which includes worked
examples showing how the statutes could be made compliant.
(xx) Processes should be created by which committed lead
agencies can mentor other agencies not yet up to speed.
(xxi) Attorney General’s opinions on Bill of Rights
compliance should be made available to departments, and publicly, in order
to
build a jurisprudence and rights culture.
(xxii) Chief Executives should be required to include in the
department’s annual report, progress on human rights and Bill of
Rights
compliance.
Specific matters
(xxiii) The Human Rights Act should be amended to include legislative
examples and general principles that indicate the factors that
would justify
treating people differently (as in many of the Canadian statutes).
(xxiv) The new NHRI should produce non-binding guidelines
particularly in the areas of affirmative action; and the scope of the
“reasonable
accommodation” clause in relation to disability.
(xxv) Where the issues are particularly technical, such as in
the insurance and superannuation sectors, the relevant sectors should
be
encouraged to submit their own best practice guidelines for endorsement by the
Commission, with the assistance of the Government
Actuary.
(xxvi) The inter-generational and other effects of removing the
compulsory retirement age should be monitored, perhaps by the ministries
of
social policy and health.
(xxvii) Given that the ICCPR represents the most fundamental
civil and political rights, it would be appropriate to re-examine
the
relevant New Zealand legislation to consider if it could more directly reflect
the language of the Covenant.
(xxviii) Section 5 of the Human Rights Act should be amended to
better encourage the NHRI, in its educational and advisory work, to
promote and
adopt a broad understanding of human rights including economic, social and
cultural rights.
PART THREE: THE NEED TO REASSESS OUR IMPLEMENTATION AND
PROTECTION OF HUMAN RIGHTS IN NEW ZEALAND
“National human rights institutions are by their very
nature well placed to transform the rhetoric of international instruments
into
practical reality at the local level. Because they are national – they can
accommodate the challenges posed by local conditions
and cultures, respecting
ethnic, cultural, religious and linguistic diversity in implementing
internationally agreed human rights
principles. And a national institution can
provide constructive, well informed criticism from within – a source of
advice and
warning which is often more easily accepted than criticism from
outside sources.”
Mary Robinson, United Nations High Commissioner for Human Rights
- Given
the evolutionary history of the international human rights standards, it is
important to constantly review the need for new
standards as new issues arise
and to regularly assess the effectiveness of the procedures established under
the various human rights
instruments for monitoring compliance with those
standards. Thus, New Zealand has been active in the United Nations on issues
related
to reform of the human rights treaty bodies. Equally, we should not
assume that the way we have given effect to the international
standards in our
domestic law and through our domestic institutions will be satisfactory for all
time. The understanding and effective
protection of human rights at both the
international and domestic levels is a constantly evolving
process.
Time for reassessment?
- The
Minister’s Terms of Reference for this exercise states that “New
Zealand has had human rights legislation for almost
30 years and it is now an
appropriate time for such a re-evaluation moving into the new millennium”.
This idea was fully supported
by stakeholders during the consultation process.
Consultations have revealed that the present situation does not meet the
expectations
of a wide range of stakeholders. Many believe it is time for a
major change in direction. They also identified that clear leadership
would be
required to effect improvement.
- Of
particular concern to many stakeholders was the fact that although many
individuals have worked hard, the public reputation of
some of the agencies is
relatively poor. The consequence of this situation is that those agencies that
believe they are performing
well do not want to associate themselves with other
agencies that are perceived to be performing below
expectations.
- As
a consequence of fragmented growth, each agency is focussed on its own principal
areas of activity, and particularly the complaints
arising in those areas.
Consequently, they have limited time and capacity for attention to the broader
aspects of human rights or
the overall levels of understanding and acceptance of
human rights principles in the community. There is also a natural tendency
for
each agency to develop its own constituency, in part as a means of ensuring
support when its work creates some tension with the
government or sections of
the community. Accordingly, in circumstances where the direction of each agency
rests in large part with
the relevant commissioners, and there is no overarching
governance regime, there is little pressure or drive for strategic co-
ordination
and co-operation amongst the agencies.
- Of
a lesser order of significance, the inefficiencies and loss of effectiveness
caused by fragmentation was commented on by many.
A range of stakeholders
mentioned duplication such as separate PABX systems, receptionists, annual
reports, websites, newsletters
and payroll systems. Staff expressed frustration
at the inefficiencies caused by having separate education functions and
consequent
sensitivities about which human rights issues could properly be
discussed by which organisations in workplace presentations and discussions.
For
example, Human Rights Commission staff felt that because of inter office
sensitivities they could not discuss race issues when
they arose in the course
of their education activities but had, instead, to refer them to the Race
Relations Office.
Some features of the present institutional
arrangements:
- The
five agencies mentioned in the terms of reference display different
institutional arrangements. The Human Rights Commission covers
a wide range of
different rights protections within one Act and one organisation.
Governance
has been attempted with a mix of full-time, half-time and part-time
commissioners.
- In
the case of Race Relations, the Conciliator sits on the Human Rights Commission,
shares the same Act but has a separate organisation
that has significant
differences in the way it operates from the Human Rights
Commission.
- The
Privacy Commissioner is a member of the Human Rights Commission but operates
under a separate Act and the office is self-governing.
Benefits have been
derived from the Privacy Commissioner's membership of the Human Rights
Commission, inter alia in terms of cross-fertilisation
of ideas. But in general
there appears to be little connection between the purpose of the work of the
Privacy Commission and the
other human rights agencies.
- The
Offices of the Commissioner for Children and the Health and Disability
Commissioner stand alone. Although there are differences
in role and function,
and both agencies claim their own differentiation, it is hard to escape the view
that they are fundamentally
concerned with issues of human rights. At present
their contact with the other human rights related agencies is
limited.
- It
would be unwise to link the effectiveness or otherwise of each institution to
the different institutional arrangements alone. Each
has different funding and
size pressures, different natural constituencies, different political appeal and
different leadership style.
What is common is a natural desire on the part of
each agency to protect and enhance its own "brand".
Confusion of management and governance:
- Current
arrangements provide for commissioners to have both a governing role and an
active role in doing the work of the agencies.
Under these circumstances,
commissioners (who in part, were appointed for their expertise in a specific
area of human rights) must
be capable of doing everything from developing long
term strategy to day to day operations. There are no systemic means to provide
quality assurance on the work of commissioners.
- Staff
in the current agencies described the consequences of this situation in a range
of ways. For example, staff value strategic
plans as the means to guide their
work but subsequent changes in direction or direct interference by commissioners
create confusion
and resentment.
“Decisions were made around
the Commissioners table and then individual commissioners would lobby managers
to make sure their
jobs were done.”
Staff member
- In
the Human Rights Commission, this situation has been temporarily resolved by the
linking of specific Commissioners to specific
managers. Any work requests of
the manager must be channelled through the relevant commissioner. The General
Manager at the Human
Rights Commission initiated this and many other changes in
managerial systems but these changes can not achieve their potential under
the
current structural arrangements because of the perceived requirement for
Commissioners to intervene to meet their statutory obligations.
In any new
organisation, it will be crucial to separate governance from managerial
accountability.
Some consequences for overall effectiveness:
- The
diversity of arrangements has meant that some interest groups are seen to have
had more success in having their concerns addressed
than others. There is
limited ability in the present arrangements to achieve a principled resolution
of the various demands on the
time and resources of the agencies. Independence
of "brand" is achieved at a price.
- Limits
to co-operation have created some rather curious situations. For instance, in
Wellington there are 3 offices of different commissions
on one floor, each with
its own infrastructure. In Auckland, “brand” separation of the RRO
and the Human Rights Commission
in particular has meant that the offices are
located apart when the linkages in the nature of the work would suggest an
effective
sharing of resources
- As
a number of stakeholder groups pointed out, users also pay the price of no
single point of entry. Multi-facetted complaints must
be handled either
by
multiple complaints to different agencies or sequential processing as each
agency determines the extent of its jurisdiction. This
can increase queue
lengths and in some cases cause long delays.
- Underlying
assumptions that derive from a complaints focus need to be re- evaluated if a
more effective approach is to be taken into
the future. A common assumption that
derives from the “quasi-judicial” work of these organisations in
respect of complaints
is to vest much of the decision making in Commissioners.
This is understandable at an individual rights level but is a barrier to
effective organisational design. Duplication of the work of senior managers and
Commissioners is costly, consuming resources that
could be used to deliver
better value to the community if a different approach were
taken.
Complaints focus:
- Consultations
revealed that in spite of strenuous efforts in some cases to reduce this
problem, the urgent and compelling demands
of incoming complaints and other day
to day operations consumes resources. This tends to severely limit capability to
operate more
strategically.
- Stakeholder
groups believe that the public’s perception of human rights organisations
is that they simply deal with individual
cases. Although the Human Rights
Commission and Race Relations Office, for example, have recognised this and
sought to allocate more
funds to education, the overwhelming theme in comments
from stakeholders is that the focus of these organisations remains on the
resolution of individual complaints at the expense of a focus on building
respect for human rights.
“They are breach orientated instead
of applying the values and principles of Human Rights”
Member of Parliament
“HRC’s future challenge is to become relevant to New
Zealanders every day”
Staff member
“They focus on discrimination not the broader human rights
environment”
Departmental Official.
- Because
the complaints process is the public face of the organisations, their
reputations depend, in significant part, on the perceived
quality of this
service. Large backlogs have adversely affected the public’s confidence in
these organisations. In a recent
survey of people involved in the HRC complaints
process, 72% indicated that the complaints handling process took too
long.
“Timeliness is a problem. HDC, Children’s
Commissioner, and HRC take too long. The issue then can not be addressed. There
will be no resolution – the complainant’s rights have been trampled
on again.”
NGO Representative
“As the backlogs get bigger, further inequity and
injustice occur. The longer it takes the more entrenched the parties become
and
the more difficult it becomes to conciliate”
Staff member
- Given
the relative lack of publicity about broader human rights issues, the results of
recent publicised cases tend to provide the
enduring image of the organisations.
Cases referred to by a number of stakeholders include a married persons golf
tournament and
the price of women’s haircuts.
“They are
not tackling the big, important issues. They focus on trivia (same sex bowling
matches)”.
NGO Representative
“Many people think HR is silly. They [small business]
can’t advertise for a sharemilking couple. They [human rights
organisations]
need to pool resources and tackle the big issues and do educative
work and publicise it.”
Media representative
- For
many stakeholders, the focus on such issues is seen as trivial and devalues the
public perception of human rights. Stakeholders
see the need for systematic
analysis of human rights issues and larger scale resolution of such
issues.
“The complaints process can only look at a small number of
complaints. Inquiries can bring major challenges to peoples thinking
about HR.
They are great value for money because they can change public
opinion”.
NGO representative
Dependence on Commissioners as leaders:
- The
current generic model of organisation across the human rights sector utilises
figurehead Commissioners as leaders, governors and
operators in specific areas
of human rights. This approach may have utility in creating a focal point for
the community. However,
such a strong investment in a few individuals carries an
obvious downside. What is achieved is heavily dependent on the effectiveness
of
the particular individuals concerned. Where it works it is seen to be a success,
where it does not the individual is blamed. In
the latter case, there is no
means, other than threats to the survival of the office, to provide the checks
and balances that provide
assurance that the Commissioner is leading in a
direction that will deliver long-term improvement in human rights performance. A
more consistent and secure approach for the future would be to place greater
emphasis on the building of strong, broad based governance
and organisational
capability.
- Stakeholder
interviews revealed the vulnerability of the existing organisations to the
quality of the individuals that lead them.
For example, the success of the
Privacy Commission over the last ten years has been in no small measure due to
the drive and personal
competence of the Commissioner. He has personally built
an institution from scratch including writing the legislation and providing
leadership over a long period of time. He attracts high quality staff who want
the opportunity to learn from him. The risk lies in
succession – it will
be a hard act to follow.
- The
fragility of the current structural arrangements becomes apparent when there is
a change of Commissioner. Consultations revealed
that regardless of
institution, severe changes in direction are experienced when Commissioners
change. The result is disruptive
restructuring, changes in function and changes
in process. The ability to evolve in an orderly fashion over time is
compromised.
For example, previous education strategies in the Human Rights
Commission concentrated on building networks of people in communities
who could
distribute
information and act as a focal point for human rights issues. This strategy was
changed to one of ‘train the trainers’
when a new set of
Commissioners was appointed. The local networks were disbanded. Work is now
under way to rebuild them.
- A
fragmented approach to organisation that relies on the performance of a single
person for its effectiveness does not provide the
conditions for sustainable
long- term performance. Furthermore, in a rapidly changing world, diversity of
culture is important to
ensure healthy internal debate about alternative
approaches to complex problems. Narrowly based strong cultures can find it
difficult
to adapt and the risk of extinction increases.
Impact on staff:
- Whilst
some staff turnover in an organisation is important (new ideas are injected and
established practices challenged by new staff
members) the difficulty in
attracting and retaining high quality staff has been identified as an issue for
some of the organisations.
“The fragmentation of the
organisations means we can’t buy the best people”
Staff member
“We have none {training and development opportunities}.
Morale is low. I spend 30% of my time keeping morale up – this
could be
used more productively”
Staff member
- The
Human Rights Commission, for example, has identified ‘the need to attract
and retain its valued staff as a key organisational
competency which is critical
to its future success’ (Workplace Partnership Project, April 2000). But
its ability to do so is
hampered by its relatively small size and consequently
limited capacity to offer development opportunities. High calibre specialist
staff in such key areas as public relations and human resources are also often
beyond the reach of very small organisations.
International reassessments of National Human Rights
Institutions:
- As
mentioned previously, national human rights institutions are a relatively recent
development among mechanisms for the protection
and promotion of human rights.
They represent a recognised means whereby states can more effectively work to
guarantee human rights
within their own jurisdiction. As an independent
organisation established by law to protect and promote human rights within the
country,
an effective NHRI can play a fundamental leadership role in the
creation and maintenance of a domestic human rights environment.
It is important
that New Zealand, which has a reputation for leadership in human rights matters,
makes every effort to ensure it
has a strong and effective
NHRI.
- Useful
guidance can be obtained from the International Council on Human Rights’
recent report: Performance & legitimacy: national human rights
institutions (2000, International Council on Human Rights Policy, Versoix,
Switzerland). This report demonstrates that social legitimacy through
effective
performance is a crucial factor in the success of an NHRI. The report’s
recommendations include:
- - NHRIs should
move from a complaints-led to a programme-led approach;
- - NHRIs should
encourage consultation and participation in their operations;
- - NHRIs should
ensure that senior executives and staff are qualified, committed, representative
and independent;
- - NHRIs should
have adequate financing arrangements as well as transparent reporting
procedures;
- - NHRIs should
be more accessible;
- - NHRIs should
annually declare their priorities and identify vulnerable groups who will have
first call on their services;
- - NHRIs should
address economic, social and cultural rights.
- Another
useful resource is the recently completed Canadian Human Rights Act
Review. Although the Canadian review was much more detailed and specific
than this scoping exercise, the final recommendations of the Canadian
Review
Panel reveal some important strategic directions, including:
- - Amendments to
allow the Canadian Human Rights Commission to move away from being complaints
driven and to focus more on education;
- - Amendments to address the conflict between advocacy and
investigation/decision making functions;
- - Amendments to
avoid lengthy complaints processes and backlogs;
- - Amendments to
allow the Commission to strategically focus its resources on the most
serious/systemic human rights issues;
- - Amendments to
facilitate more open and transparent appointment processes for the Commission
and Tribunal.
PART FOUR: THE NATIONAL HUMAN RIGHTS INSTITUTION
“The World Conference on Human Rights reaffirms the
important and constructive role played by national institutions for the
promotion and protection of human rights, in particular in their advisory
capacity to the competent authorities, their role in remedying
human rights
violations, in the dissemination of human rights information and education in
human rights ... The World Conference
on Human Rights encourages the
establishment and strengthening of national institutions, having regard to the
‘Principles relating
to the status of national institutions’ and
recognising that it is the right of each State to choose the framework which is
best suited to its particular needs at the national level.”
Vienna Declaration and Programme of Action 1993
Human Rights in a Changing Society:
- Effective
human rights institutions and a progressive human rights environment are at the
heart of a nation’s ability to maintain
a peaceful and stable society that
respects the dignity and worth of all its individuals and groups, with all their
differences.
Stakeholders generally agreed that New Zealand enjoyed a
“placid” social order in contrast to the recent turmoil in some
countries in Asia, Africa and the Balkans. The existing institutional
arrangements have contributed to this relative stability in
the human rights
environment of New Zealand.
- Nonetheless
stakeholders also shared a concern that there is potential for future disruption
to this internationally recognised state
of stability if the human rights
environment does not evolve to respond to the changing political, economic,
social and cultural
factors relevant to the enjoyment of human rights
in New Zealand. There have been major changes in all these factors in
the
twenty- five years or more since the principal human rights bodies were
established in New Zealand. To take one example of the
significance of these
changes, the term "race relations" now seems too narrow to reflect the issues
(which include cultural rights,
indigenous rights, economic and social
disadvantage and the Treaty of Waitangi) that need to be addressed in the
context of human
rights amongst the communities that make up New Zealand society
today.
- The
following were some of the key points made by many stakeholders in this
context:
(i) The institutions need to be seen to be taking a lead in
promoting constructive discussion of the major human rights issues of
the
day.
(ii) Their work must be seen to be relevant to these major issues or their
value in a changing society will be diminished.
(iii) They must be able to obtain general respect for their work from
individuals and minority groups but also from the New Zealand
community at
large. In that regard they must be effective in improving public understanding
of the fact that protecting the human
rights of individuals and minorities is
central to the health of society.
(iv) If they are doing their job they will be unpopular with the government
and/or some sections of the community from time to time
but provided they have
well argued and well presented reasons for their actions they should be able to
maintain general public support.
(v) They should have a strongly interactive relationship with the NGO
community although the expectations of particular NGOs will
not always be
met.
Comparative Organisational Models:
- New
Zealand is not alone in re-evaluating its NHRIs at this point in time. Although
it was not possible to fully investigate a full
range of overseas models in the
short time available for this scoping exercise, opportunities to visit HREOC
(Australia) and hear
the personal experiences of individuals involved in its
evolution were taken. Literature covering the Canadian review completed in
June
this year, the study of NHRIs published earlier this year by the International
Council on Human Rights and the specific arrangements
for some other NHRIs were
also canvassed.
- It
is clear there is no single model for successful NHRIs and, as the International
Council on Human Rights points out, much depends
on the different socio-
political circumstances under which the particular national institutions have
emerged. Nonetheless it is
equally clear there are some common and
related
issues that are being faced in many jurisdictions and that are regarded as
important by those with an overview of the international
scene.
- One
of the most pressing issues for those jurisdictions that have an individual
complaints system, is the extent to which that system
tends to become the focus
of the institution and to tie-up resources to the detriment of the broader
responsibilities of the institution
in the field of human rights education and
attention to systemic issues. The Canadian review panel, for example, says it
was clear
from the submissions they received that human rights education and
promotion were understood by community groups, labour organisations,
employers
and government agencies to be essential in addressing human rights issues in
Canada. They make a strong case for a major
shift in the orientation of their
national institution towards this area of work.
- Closely
linked to the education work that can be easily crowded out by the pressure of
processing individual complaints is the conduct
of inquiries into systemic
issues and more generally the provision of community leadership across the whole
field of civil, political,
economic, social and cultural rights. The fundamental
importance of community education across the range of human rights, attention
to
broader systemic human rights issues and the development of relationships with
government bodies and civil society/NGO groups
is also stressed in the
recommendations of the International Council on Human
Rights.
- There
is no simple answer to this issue and it is obvious that each jurisdiction must
work out its own solution in accordance with
its own social and political
circumstances and resources. It is of interest however, that the problem
identified by New Zealand stakeholders
and by some of the agencies themselves is
being faced by other comparable jurisdictions.
Organisational Design - Choices of Approach:
- It
is widely accepted that NHRIs should have a broad mandate and a range of
functions. The functions should generally, although not
invariably, include both
promoting respect for human rights in the community and dealing with individual
complaints. What seems to
have been less widely recognised is that the
emphasis
placed on one or other of these two major functions is likely to have quite a
profound effect on the nature of the institution and
the way it operates. It
will influence the qualities seen as necessary to lead it, the way it is
structured, the systems and processes
it adopts for dealing with complaints and
the priority, effort and resources it is able to apply to education work and
other functions.
- If
the organisation is focussed on complaints resolution those leading the
organisation will be seen as having principal responsibility
for settling
disputes and as exercising an important quasi-judicial function. They will need
to be well versed in legal analysis
and process, or at least reasonably familiar
with it, and preferably will have expertise or experience in at least some of
the relevant
areas of substantive law.
- The
structure of the organisation and its systems will need to be designed around
the ability to analyse and process disputes in ways
that assist determinations,
if necessary, at a high level within the organisation. As the goal is a
‘just’ decision in
respect of each individual complaint, those
responsible for the decisions will want to ensure that all significant work
passes through
them or through a unit that controls the quality of decision
making. Timeliness will tend to be subsumed to the higher goal of justice.
Ultimately, as in any judicial or quasi-judicial system, good decisions will be
promoted by the existence of a means for correcting
poor decisions
retrospectively through appeal processes.
- If
on the other hand the principal focus of the organisation is on taking the lead
within the community in promoting a society that
respects the dignity, worth and
human rights of all its members, with all their differences then other
leadership qualities, structures
and systems are indicated. Those in the
leadership role will need to be focussed on the strategic human rights issues of
the day.
They will need to have the personal qualities to initiate and lead
constructive discussion within the community of the various dimensions
of human
rights issues, to promote general education and awareness of the broad range of
human rights and to encourage positive interaction
between different
individuals, groups, communities and cultures within
society.
- The
involvement of the leadership in individual complaints will be limited
to:
- those
where their personal involvement may assist in the resolution of a dispute or
difficulty that has developed wider community
implications; or
- those
of strategic significance for the organisation.
The complaints resolution process will be structured and performed in ways that
link to, and support, the organisation's educational
role. For example, the
organisation's role in complaints might be focussed on conciliation/mediation,
with determinations on the
merits being made outside the organisation. Under
this approach the organisation can be seen as a system that produces a service
which can be judged against criteria of quality and timeliness. Control will be
exercised proactively by creating governance and
management arrangements that
encourage individuals to exercise appropriate discretion in a timely way. The
result will be that work
is done at the lowest competent level in the
organisation.
- In
practice most jurisdictions that allow the NHRI to receive and consider
individual complaints have placed an emphasis on the complaints
process and
structured the institution around a quasi-judicial approach. Attempts to
moderate this approach in recognition of the
growing importance of education and
promotion work across the full range of rights appear to have met with very
limited success.
In Australia, for example, there have been four
reorganisations of HREOC in seven years in an attempt to find the optimal
arrangements.
But the experience there, and also in New Zealand, is that while
the quasi-judicial approach or model is in operation Commissioners
will continue
to "dip down" into the organisation, bypassing the chief executive and
undermining accountability, where they see it
as necessary in terms of their own
responsibilities.
- It
is unsurprising that the effort to place greater emphasis on community
leadership and education work within the present institutions
has not met
expectations. The present focus on complaints is inextricably built into the
structures. Change will occur only as a
result of a fundamental redesign of the
structure, accountability arrangements, systems and processes to support the
broader role
of the institution as described above. A redesign of this nature is
recommended and the key features are described below.
A New Organisation: Key Features:
Role and Focus
- The
principal role and focus of the organisation should be as described in
paragraphs 139 and 140 above. It should initiate and lead
constructive
discussion within the community of the full range of human rights issues. It
should promote general education and awareness
of civil, political, economic,
social and cultural rights, including the interrelationship of those rights and
the Treaty of Waitangi.
It should encourage respect for difference and positive
interactions between different individuals, groups, communities and cultures
within society. It should be, and be publicly seen to be, working strategically
and tackling constructively the most pressing and
difficult human rights issues
of the day while continuing to conciliate individual
cases.
- In
this strategic role it should make cost effective use of its powers (previously
under utilised) to commission research and undertake
general inquiries for the
purpose of identifying all emerging issues across the range of human rights, and
developing proactive responses
to them. It should brief counsel to take test
cases, or to seek intervenor status in an extant case, where there is a need to
settle
important questions of law. And it should make full use of non-binding
guidelines or policy statements to help clarify what is needed
to comply with
the law and generally to educate the community about human rights issues and
their solutions.
- This
role and focus for the organisation will properly locate it where NHRIs should
be located (i.e. between, on the one hand, the
activism of NGOs in respect of
particular aspects of human rights and, on the other, the majoritarian outcomes
that tend to be delivered
by democratic government). By developing community
understanding of the importance of human rights in underpinning the
opportunities
for individuals and groups to realise their potential the
organisation will be seen to add value to society and thereby earn its
place and
secure its ongoing independence.
- The
way in which the complaints function can be carried out effectively, while
supporting rather than dominating the broader role
and focus of the organisation
is described in Part Five: The Dispute Resolution
Model.
Structure: General considerations
- The
structure of the organisation must ensure that the functions of governance and
management are separated so that accountabilities
are clear. Governance of the
new organisation will be effective if it is seen as oversight, not control and
is focussed on performance,
not mechanical compliance. This latter point is
important because, in the end, performance is the key to maintaining the
necessary
level of independence from government and the funding to support the
role.
- Good
governance only requires review meetings at intervals of one month or longer. It
is therefore inherently part time. In fact,
those exercising the governance
role should not, in general, be full time or they risk interfering with the day
to day operations.
Good governors should be capable of assessing and adding
value to the strategic direction of the organisation. They should also be
able
to provide public leadership on human rights issues.
- Establishing
a successful regime of governance will be essential for the effective
functioning of the new organisation. The key element
in this regime will be a
Governance Council that will be required to ensure that the role and strategic
purpose of the new organisation
is achieved, that it is properly connected with
the community and that its performance is kept in public view. This task cannot
be
accomplished if those who govern the organisation also work in it. The clear
separation of governance from management will be critical.
- To
be effective the Governance Council must be collectively (not individually)
accountable for the work of the organisation across
all aspects of human rights.
Individual accountability for particular areas or individual representation of
special interests on
the Governance Council would be destructive. At the same
time the composition of the Council must be such that those with interests
in
particular aspects of human rights can be confident that those interests will
receive proper attention. The collective responsibility
of the Council for
ensuring the organisation pays due attention to all aspects of human rights
should be recorded in the statute.
- The
Council will establish the strategic directions of the organisation and will
collectively monitor and direct management through
strategies, plans, policies
and budget bids. It should be noted in this regard that the development of the
organisation's first strategic
plan will be greatly assisted and informed by the
proposed National Plan of Action recommended in Part Seven of this report. The
process involved in the development of a National Plan of Action will also
provide a means through which the organisation will be
able to achieve an early
engagement with its full range of stakeholders including national and local
government, business, Mäori,
Pacific Island and other ethnic communities,
women's groups, disabilities groups, children's interest groups and other human
rights
NGOs. The need to update the strategic plan annually and rewrite it every
three to five years will help the Council to keep the organisation
connected to
its environment and able to evolve as international and domestic expectations
and issues in relation to human rights
continue to change and
develop.
Composition of the Governance Council
- First
and most importantly, the Governance Council should be reflective of New
Zealand society and of the various aspects of human
rights and communities of
interest in human rights that require particular attention. All members of the
Council would be expected
to bring a broad awareness of human rights and their
importance to their work as well as an understanding of the importance, in the
New Zealand context, of the Treaty of Waitangi. However, through their
particular backgrounds, they should also be able to contribute
to the task of
ensuring that the organisation gives appropriate attention to all aspects of
human rights. More generally they need
to have the capability to undertake an
effective community leadership role and to maintain high level contacts with all
stakeholder
interests and NGOs.
- Secondly,
the Governance Council must have the capability to govern. The full mix of
skills for competent oversight must be present
including expertise in human
rights, public leadership, finances, human resources, legal, public relations,
strategic thinking and
practical oversight of operations. The consequences of
shortfalls in skills have recently been evident in crown entities in the area
of
financial governance. As funding will always be an issue for
the
organisation it will be important that there is good governance capacity in the
area of financial resources as well as in the other
areas.
- Thirdly,
the Governance Council must be capable of balancing needs. This is not achieved
in the current system and will not be easy
because of the strong cases that will
be made on behalf of particular human rights interest groups. It has been
suggested that inclusion
of some agencies in the new NHRI should be resisted
because of the fear of subsuming special interests. This is not a solution.
It
simply avoids the issue or transfers it elsewhere. It also precludes the
opportunities for developing programmes that are effective
across more than one
aspect of human rights. To achieve unity in the human rights arena, however, the
Council will certainly need
to collectively ensure that all special interests
are heard and given appropriate balance. To that end it will be desirable for
each
major interest group to be able to identify at least one (and preferably
two or more) individuals on the Council who will be able
to reflect their
interests both in governance and, as appropriate,
publicly.
- The
Governance Council will need to consider the allocation of resources in the
annual budget. The alternative (as is currently the
case) is to simply ignore
the need for a conscious strategic decision as to how best to pursue human
rights in aggregate and leave
it to natural evolution. The current lack of a
unified system is nowhere more evident than in the individual agency pleadings
for
funding allocations. The natural result, proven historically, is allocations
that rarely change over time except where major catastrophes
force a funding
review. The risk is steady erosion of resources and ultimately organisational
failure.
- Council
members might be assigned specific oversight tasks across the range of issues to
ensure that decisions of educational strategy
and funding are balanced according
to the need for a cohesive society that respects
difference.
- One
test of overall Council performance will be the public acceptability of its
strategic funding decisions. Another will be its ability
to convince government
of adequate funding levels based on the demonstrated performance of the
organisation in improving the human
rights environment. In this regard
independent surveys should be established to measure the value the
community
sees in the performance of the organisation. The results of properly conducted
surveys would be useful in assessing the effectiveness
of its overall
strategy.
Appointment of the Governance Council
- The
Governance Council should be of manageable size and constituted to encourage
consensus with voting as a last resort. It should
therefore consist of either 7
or 9 people with a President as chairperson having a casting vote. In view of
the range of activities
needed in the short to medium term to achieve an
effective community leadership role for the organisation and in particular the
need
to build relationships with all stakeholder groups the President should
initially be engaged on a full time basis.
- The
President and Council members should be appointed for fixed terms of a minimum
of 3 to a maximum of 5 years with provision for
reappointment for a maximum of a
further 3 years.
- Because
of the need to finely balance the collective capability of the Governance
Council, the selection process should be very carefully
conducted. Consideration
should be given to discussing possible nominees for Council with the President
to ensure that a well functioning
team is established in accordance with the
criteria outlined above. Appointments should be made by the Governor General in
Council.
Organisational Capability:
- The
Council should be supported by a chief executive who would be accountable to the
Council for the performance of the organisation
across all its activities
including the maintenance of sound working level relationships with all
stakeholder interests including
NGOs. The roles of President and Chief Executive
must be kept clearly separate. A competent Chief Executive will be able to
provide
full service to the board, meeting accountabilities for strategy
formulation, policy development and financial control.
- The
selection of a highly capable Chief Executive will be a key to the success of
the organisation. The appointee must be selected
using modern
competency
based processes that critically evaluate past behaviour as a guide to possible
future performance. To be successful, this process
must be conducted by
competent recruitment professionals.
- The
size of the new organisation will be important to establish adequate capability.
Adequate size will enable different levels of
capability to be established from
strategic to operational. It will also enable people to see a career path
enabling the organisation
to attract high capability individuals in specialist
roles such as media and legal. Size also provides increased capability to handle
varying workload demands and an integrated range of
functions
- Although
the organisation must take a global view of human rights, there will be a need
to maintain the clear identity of the various
aspects of human rights (e.g.
disability, women etc) within the work of the organisation. The Chief Executive
must be accountable
to ensure that adequate capability and accountability for
specific aspects exists in the organisation. This is best done by ensuring
that
for each aspect, there is an individual who is accountable for organisational
capability in that area. This does not mean that
the individual does the work
themselves; it does mean that, under the guidance of the Chief Executive and in
consultation with appropriate
Council members, they develop a plan that will
deliver a professional service in that area. By providing such a service, the
Council
will be able to publicly demonstrate how the organisation is effectively
improving human rights standards in the broad community.
- As
this re-evaluation was primarily a scoping exercise it was not envisaged that it
would include a full organisational design, nor
was there sufficient time to
undertake such an exercise. That is a task for a later stage. What can be said
is that a properly designed
organisation, with well designed processes within
it, would offer substantially improved effectiveness and efficiency across the
range of human rights activities encompassed by it.
- An
obvious candidate is the “front end” conciliation part of the
complaints function which should be designed and operated
using sound process
management principles. Even though each existing agency has adopted its own
“best practice” approach
there would seem to be plenty of room to
improve further by learning from others. Good process design starts with an
understanding
of what value the
organisation is offering to its users. Delivery of value does not necessarily
equate to delivery of wants. Good complaints process
for the new organisation
may not equate to good social work nor to traditional legal investigatory
paradigms. These questions need
to be addressed if staff are to be assisted to
achieve optimum performance.
- Other
areas where the new organisation should be able to achieve higher performance
due to improved size include the conduct of formal
inquiries and education,
research, advocacy, policy development and legal work. Stronger functional
groupings in these areas would
be able to use the diversity of human rights
issues to build broader and more strategic expertise.
- A
further consequential benefit of increased size and sound organisational and
process design is that efficiencies gained in functional
areas can be applied to
enhanced capability in different streams of human rights work. It could be
envisaged, for example, that enhanced
specialist capability could progressively
be built over time in racial harmony, women’s advocacy, disability,
possibly children,
and so on depending on which of the current rights
institutions are integrated into the new organisation and when they are
integrated.
These specialist areas would work with the stronger functional areas
as appropriate.
- The
benefits of this approach are obvious if one considers how the education
function might run a series of different programmes through
a year. For example,
the full weight of educational resources could be made available for a few
months to target indications of racial
discrimination in a particular industry.
This could be followed over the next few months by a programme on gender issues
in some
other industry. There would also be the possibility of making different
programmes mutually reinforcing. This situation would be
far superior to the
current situation where in small offices such as the Race Relations Office small
size has meant few resources
to produce publications let alone conduct targeted
education. It may be that with improving professional standards, employers may
pay for effective workplace education creating improved conditions for
mainstreaming human rights in the community.
- Once
strong institutional capability is achieved, the fragility of reliance on a few
individuals is removed. Senior officers in specialist
areas will come to
be
increasingly valued in the community as serious and professional contributors to
human rights, enabling competent work to be done
at lower levels in the
organisation. Performance of the whole organisation then rises and the
attractiveness of jobs in the institution
increases – a virtuous cycle is
established.
- Provided
that a well-constituted Governance Council is achieved, human resources policy
approved by the Council will ensure appropriate
selection of staff. It is
crucial that staff be recruited using competency based assessments and a
rigorous selection process. Furthermore,
an improved balance of demographic
representation throughout the organisation and mutual support of diversity needs
to be achieved.
- As
a matter of principle, work should be done at the lowest competent level in the
organisation. This must then be controlled by well-designed
internal control
systems that drive the desired behaviours of individuals in their
roles.
- More
generally the human resources policy approved by the Council and implemented
under their oversight should ensure that the organisation
demonstrates
leadership in the community by living the principles of human rights
internally. The staff of the organisation should
to be able to declare that it
demonstrates respect for human rights in everything it
does.
Independence:
- The
"Principles Relating to the Status of National Institutions" (the Paris
Principles) were adopted by the UN Commission on Human
Rights in 1992. They
outline minimum standards of status, functions and methods of operation for
NHRIs. A well-designed larger NHRI
will be better able to meet these principles
than the fragmented current organisations.
- The
principles recognise that for a NHRI to be effective, it must have adequate
resources to fulfil its mandate. Its access to those
resources needs to be
sufficiently secure that its ability to perform its functions, including where
necessary public criticism of
governmental action and the provision of advice
that is contrary to government policy, is not threatened by the withdrawal of
funds
for
political reasons. At the same time, it is essential that a NHRI, like any
publicly funded body, should not only have to account
for its expenditure of the
public funds allocated to it, but should also have a defined process by which
its performance can be evaluated.
- In
a democratic society, the key to independence is performance. An institution
that is well managed and governed will have the support
of the broad community
and will consequently be able to attract a level of funding that the community
considers appropriate through
the democratic process. In the new organisation,
annual budget funding should be provided in response to well argued cases in the
strategic plan that can be supported by the Secretary of Justice, as Chief
Executive of the responsible government department, on
the basis of confidence
in past performance. Funding should not be provided in response to complaints
queues or other operational
pressures because it is the responsibility of the
organisation to manage its processes and prioritise its resources within the
vote
provided by government. Performance must be assessed in accordance with
sound accountability arrangements.
Accountability arrangements:
- Well
constructed accountability arrangements are crucial because they ultimately
drive the long term capability of the organisation.
To achieve high performance,
the accountability arrangements must be specifically designed to require the
organisation to be responsible
for its own success. Specifically, there should
not be any specification of outputs by central government because these remove
the
accountability to think strategically from the organisation. If outputs are
specified, the accountability for planning them shifts
to the agency specifying
the outputs. This reduces independence.
- The
crown entities reforms currently under consideration require output agreements
to be prepared. This should not be adopted for
this organisation. For any
organisation that is expected to be adaptable and responsive, output agreements
work against effectiveness
and reduce efficiency. The new human rights
organisation should be expected to build capability to deliver
against
evolving community needs and expectations – a much more sophisticated task
than delivering against specified outputs.
- Accountability
arrangements and relationships for the new organisation should be based on two
principles:
(i) The best accountability relationships are based on
judgement about potential future benefit for society of the organisation
taking into account its past performance and future plans. In the current
Public
Service accountability system, assessment of performance is not based on high
level judgements about the value an organisation
contributes, but rather ex ante
specification of what should occur and ex post measurement of what did occur.
Accountability relationships
based on specification and measurement have proven
to be counter-productive at a high level because they do not recognise or plan
for the degree of uncertainty that organisations face.
(ii) The best judgements are made using face-to-face
discussions. At present, the Public Service accountability system relies on
documents to transfer information. Face-to-face discussions enable
the necessary
information to be passed directly to the person who needs it to make the
judgement. They enable that person to probe
for further information in real
time so that a depth of understanding and rapport can be established between the
individuals. They
also enable decisions to be made about whether further
information is required from other sources. In the end, face-to-face discussions
also enable a climate of trust to be established. The best quality judgements
are made this way and enable the most productive accountability
relationships to
result.
A strategically focussed Accountability Process:
- The
accountability cycle should begin with the Minister of Justice seeking funding
for the human rights organisation from parliament
as part of Vote: Justice. The
Minister of Justice is accountable to Parliament for the funds allocated to the
human rights organisation.
The Minister should seek advice from the Secretary of
Justice on the value of alternative strategic programme choices at different
levels of expenditure. This information should be used by the
Minister,
and Ministers collectively, to decide where the Government should best place
public funds.
- To
provide advice to the Minister, the Secretary will need to satisfy him/herself
about the value of alternative strategic options
by personally discussing them
with the President and senior management. One proven method of doing this is for
the senior managers
to present their strategy to the Secretary in the presence
of the President. Part of the strategy presentation should cover past
lessons
from previous implementations of the strategy. The Secretary would be expected
to test their analysis and rationale behind
the strategy. This would be the
face-to- face opportunity for the Secretary to form personal judgements about
the proposed strategy
that can then underpin the advice given to the Minister on
appropriate levels of funding.
- Accountability
for performance is the key compliance task. A three to five year strategy
‘operationalised’ each year in
a memorandum of understanding (MOU)
would specify the capability to be provided using these funds, not the outputs.
The MOU should
outline what parts/stages of the long-term strategy the
organisation will work on that year. The quality of the strategy should be
underwritten through public discussion with interested stakeholder groups
including the Minister. Approval of funding and the MOU
by the Minister should
be based upon advice from the Secretary of Justice. Evaluation (including Select
Committee examination of
the annual report) should be based on the success of
the strategy in dealing with evolving human rights issues. It should be noted
that the Minister has a public ownership responsibility to decide on the level
of capability that should be publicly funded (including
adequate financial
reserves).
- Once
the annual allocation is voted, the Secretary for Justice would be accountable
for ensuring the organisation delivers value for
the resources the Minister has
invested in it. This is best done through regular personal contact with the
organisation, not written
reports. Value is ultimately a question of community
perception and the organisation should be able to demonstrate how value is being
assessed to the Secretary of Justice. The Secretary may be advised by a policy
analyst in this regard but remains personally accountable
for the relationship
with the entity. This is not a task that can be adequately conducted by
Ministry planning staff.
- The
Council of the new organisation should be accountable to the community for the
quality of the organisation’s strategy and
its implementation. This is
different from the “value for money” accountability of the Council
for the use of public
funds. The Secretary of Justice should require the Council
to demonstrate how accountability to the community has been achieved;
for
example through consultations on strategies and plans. (It should be noted that
this would be in line with the International
Council on Human Rights’
strong recommendation that NHRIs should develop methods for evaluating their
performance, particularly
in relation to vulnerable groups.) The Council should
require the senior managers in the entity to be able to discuss the rationale
for strategic choices and show how the proposed strategy will produce the best
possible results.
- The
personal judgement of the Secretary of Justice must integrate past performance,
quality of thinking and proposed future strategy.
The Secretary has an
accountability to add value to the quality of the strategy by providing a view
about the organisation’s
long term capability (an ownership perspective).
Once the Secretary is satisfied with the justifiability of the strategy and
accompanying
funding levels, the Secretary is then accountable to represent the
best interests of the entity in budget round discussions.
- The
Chief Executive of the organisation should be accountable for conducting a
rigorous process that formulates strategy taking into
account the value
expectations of all relevant stakeholder groups. To be effective, this process
needs to be at a much higher level
of sophistication than in the past. The Chief
Executive must enable the Council to test the quality of the strategy through
careful
probing. Once the Council is satisfied and approves the strategy, the
Chief Executive is responsible for ensuring the organisation
implements it. The
Chief Executive should use traditional tools such as performance management
systems and operational plans to transfer
the strategy into work programmes and
achievements. These should be internal accountability mechanisms and must not be
assessed by
the Ministry through any ex-ante/ex-post technical analysis. Apart
from removing accountability, these kinds of assessments destroy
capability
because they remove the requirement for the organisation to develop strategic
capability.
- Throughout
the year, the Secretary should meet with the President or Council from time to
time to learn how the strategy is working.
This will enable him/her to obtain a
personal feel and to provide feedback to the Minister about any significant
political risks.
The Council will need to meet regularly to assess the
effectiveness of the strategy and to consider changes in light of new
information
or circumstances. A specific role they have is ensuring audit
recommendations are being actioned.
- Towards
the end of the financial year, the cycle begins again with the organisation
presenting the Secretary with its proposed strategy
for the upcoming year so
that decisions can be fed into the next year’s budget process. It may have
been modified in line with
shifts in the environment. The Secretary would make a
judgement (based on discussions with the Council and stakeholders and
observations
over the past year of the performance of the organisation) about
how well the Council and organisation have performed. The Secretary
would also
analyse, based on discussions with the Council, the strategy proposed for the
next year. The Secretary would make a judgement
based on past performance and
the future strategy about funding levels for the next year. This judgement would
be relayed to the
Minister who, in turn, would apply for funding for the
organisation.
Composition of the New Organisation:
- Organisational
design is complex because of the need to establish systems and structures that
operate in subtle but integrated ways
to drive the productive behaviours
described above. Poor design usually emerges when simplistic assumptions create
superficial constructs
that do not recognise the inherent complexity of
interpersonal relationships. If the recommendations of this report are accepted,
it will be necessary that careful consideration is given to detailed
organisational design and the sequencing of
implementation.
- For
the reasons already identified it is essential that the new NHRI has the size
necessary to operate effectively, to handle varying
workload demands, to
properly integrate a range of functions, and to attract and retain high
capability staff including specialist
staff. In terms of commonality of purpose
and functions it is clear that it should include from the outset the present
Human Rights
Commission
and Race Relations Office. Other questions may be considered to arise in respect
of the Commissioner for Children, the Health and
Disability Commissioner and the
Privacy Commissioner. In the case of the Commissioner for Children and the
Privacy Commissioner,
the small size of their Offices must raise questions about
their sustainability as effective organisations in the longer term.
- The
role of the Commissioner for Children is currently under review. Clearly there
are important linkages between the work of that
Office and the work of the
proposed new organisation. If as a result of the review process a decision is
reached that the organisation
should be rights-based and/or there should be a
system for considering complaints in respect of children's rights similar to
that
available in respect of other human rights, the case for including the
Office would be very strong. In that event it would be necessary
for the Council
to include one or more members whom children's interest groups could identify as
having the knowledge and concern
to ensure an appropriate focus on children's
interests. (The organisation would also need the necessary specialised staff.)
If further
work and consultation is thought necessary before any final decision
is reached on this question the organisational design work could
be undertaken
in a manner that would allow the Office to be included at a later
date.
- The
right to privacy is recognised as an important international human right. In
practice, however, the purpose of the work of the
Privacy Commissioner does not
connect closely with the work of the other main agencies dealing with human
rights. In fact the purpose
of the Privacy Commissioner’s work would seem
to bear a closer connection to the freedom of information work of the
Ombudsman's
Office.
- Different
considerations again apply in respect of the Office of the Health and Disability
Commissioner. In the longer term, and after
the proposed new organisation has
established itself and its public reputation, the obvious connections between
the work of the Health
and Disability Commissioner and other human rights work
may well deserve further consideration. The result would be a very strong
and
comprehensive NHRI with many advantages in terms of effectiveness and
efficiency. At the present time, however, the office is
in the process of
reorientation under a new Commissioner and is operating in an environment that
has been experiencing major change
over an extended
period.
With a staff of 45 it has a critical mass and in the absence of pressing reasons
for change should probably be allowed to settle
down where it is.
International Considerations:
- Properly
designed and implemented, the new institutional arrangements recommended in this
re-evaluation will be more than capable
of meeting evolving international
performance expectations.
- It
is not surprising that New Zealand should find itself in a position where it is
considering arrangements that may differ in important
respects from those
currently in operation in other countries. New Zealand has always taken
something of a lead in the field of human
rights and many other countries have
adopted models based on the New Zealand experience. At the same time we have
always adhered
to the view (which continues to be supported by the relevant
international organisations with standing in human rights) that to be
effective
a NHRI must fit the socio-political circumstances in which it is to operate and
must evolve as those circumstances evolve.
In view of the fact that a number of
other countries are grappling with similar problems that have arisen under the
older models
it may be that the adoption of the recommendations of this report
will in time continue New Zealand’s contribution to leadership
in human
rights.
- It
may be that some will ask whether issues of racial discrimination and the
development of race relations generally will be able
to be dealt with
effectively in the absence of a separate stand-alone office. For the reasons
already outlined, it is suggested that
in fact those issues will be able to be
handled more strategically and effectively in the proposed new organisation.
There will be
collective responsibility in the Council for ensuring that those
issues are addressed and the composition of the Council will be
such that they
will be given appropriate attention externally and also internally in respect of
strategy, plans, policies and budget.
The much larger functional resources of
the organisation will be able to be applied to the issues in conjunction with
the relevant
staff with specialist expertise in the substantive area. The issues
will be able to be addressed in an appropriately strategic way
taking full
account of related economic, social,
cultural, indigenous and Treaty rights matters. And the organisation will have a
much wider range of networks that can be utilised
in support of its work.
Recommendations:
(i) There is a need for a
NHRI that is strategically focussed on the following:
- increasing
public understanding of the importance of civil, political, economic, social and
cultural rights in underpinning a free,
democratic and cohesive society that
respects and values difference;
- leading
constructive discussion within the community of the various dimensions of human
rights issues;
- encouraging
positive interaction between different individuals, groups, communities and
cultures within society.
This community leadership role in human rights cannot be achieved effectively
within existing organisational models that are, for
the most part, small and
fragmented and are structured around the need to make determinations in respect
of individual complaints.
(ii) A redesigned organisation will require a structure, systems
and accountability arrangements that support the strategic focus
of the
organisation and encourage the development of overall organisational capability.
The design of the organisation must ensure,
inter alia, a clear separation of
governance and management.
(iii) A key feature of the proposed redesigned organisation
would be a Governance Council of 7 or 9 part time members. The Governance
Council should be reflective of New Zealand society and of the various aspects
of human rights and communities of interest in human
rights that require
particular attention. All members of the Council would be expected to bring a
broad awareness of human rights
and their importance to their work as well as an
understanding of the importance, in the New Zealand context, of the Treaty
of Waitangi. However, through their particular backgrounds, they should also be
able to contribute to the task
of ensuring that the organisation gives appropriate attention to all aspects of
human rights.
(iv) On another dimension the Council will need amongst its
members the full mix of skills for competent oversight including expertise
in
human rights, finances, human resources, legal, public relations, strategic
thinking and practical oversight of operations. More
generally they need to have
the capability to undertake an effective community leadership role and to
maintain high level contacts
with all stakeholder interests including NGOs. The
Governance Council should operate as a collegium that collectively directs
management
through approval of strategies, plans, policies and budgets.
Individual Council members should not interfere in the day to day management
of
staff. In view of the range of activities needed in the short to medium term to
achieve an effective community leadership role
for the organisation and in
particular the need to build relationships with all stakeholder groups the
Council should initially be
led by a full time President.
(v) Because of the need to finely balance the collective
capability of the Governance Council, the selection process should be very
carefully conducted. Consideration should be given to discussing possible
nominees for Council with the President to ensure that
a well functioning team
is established in accordance with the criteria outlined above. The process
should ensure that the independence,
capability and stature of the Council is
recognised in the community.
(vi) The Council would be supported by a chief executive who
would be accountable to the Council for the performance of the organisation
across all its activities including the maintenance of sound working level
relationships with stakeholder interests including NGOs.
The Chief Executive
must be selected using modern competency based processes conducted by
recruitment professionals.
(vii) The Governance Council should be accountable for its own
performance both to the community in terms of its effectiveness and
to the
government for efficient use of public funds. The accountability arrangements
should be as described in this report. In essence
they should be based on
high
level discussion and analysis of the effectiveness of the organisation in
implementing its agreed strategy in changing circumstances.
They should not be
based on a mechanical ex ante specification and ex post measurement of outputs
as that will serve only to remove
the accountability of the organisation to
think strategically.
(viii) The proposed new NHRI should include from the outset the
present Human Rights Commission and Race Relations Office.
(ix) The role of the Commissioner for Children is currently
under review. If as a result of the review process a decision is reached
that
the organisation should be rights-based and/or there should be a system for
considering complaints in respect of children's
rights similar to that available
in respect of other human rights, the case for including the Office would be
very strong in view
of the linkages in purpose. In that event it would be
necessary for the Council to include one or more members whom children's
interest
groups could identify as having the knowledge and concern to ensure an
appropriate focus on children's interests. If further work
and consultation is
thought necessary before any final decision is reached on this question the
organisational design work could
be undertaken in a manner that would allow the
Office to be included at a later date.
(x) Although privacy is recognised as an important international
human right, in practice the purpose of the work of the Privacy Commissioner
does not connect closely with the work of the other main agencies dealing with
human rights. In fact the purpose of the work would
seem to bear a closer
connection to the freedom of information work of the Ombudsman's Office.
(xi) Different considerations again apply in respect of the
Office of the Health and Disability Commissioner. In the longer term,
and after
the proposed new organisation has established itself and its public reputation,
the obvious connections between the work
of the Health and Disability
Commissioner and other human rights work may well deserve further consideration.
At the present time,
however, the Office is in the process of reorientation
under a new Commissioner and is operating in an
environment that has been experiencing major change over an extended period.
With a staff of 45 it has a critical mass and in the
absence of pressing reasons
for change should probably be allowed to settle down where it is.
PART FIVE: THE DISPUTE RESOLUTION MODEL
“For many NHRIs a complaints-led approach will not be
sustainable. A thematic approach will enable NHRIs to concentrate their
resources on areas of acute need, while improving accountability and
communication with the public. Individual complaints should
not be ignored but
the objective should be to focus resources where need is greatest. Staff should
link actions to resolve individual
cases with general policies of
prevention.”
Performance and legitimacy: national human rights
institutions
International Council on Human Rights 2000
The present system:
- All
of the present human rights institutions have taken steps to divert resources
from their complaints processes in order to meet
more strategic demands.
However, the requirement in the Human Rights Act 1993 that Commissioners
personally determine whether complaints
have substance has lent the complaints
process a quasi-judicial character. The demands of natural justice which attach
to such a
process have led to an elaborate and protracted system of provisional
and final opinions giving reasons for the determination. While
the Commissioners
do not personally spend a great deal of time on the Complaints Division, the
process lends a sense of importance
and priority to Part II powers. The lack of
formal complaints jurisdiction over a matter may have tended to obscure the
Commission’s
broader mandate to pursue issues under its Part I functions.
And even if jurisdiction exists under Part II, and an individual reaches
a
successful conciliation, the result is usually confidential and the benefits
seldom shared by other individuals similarly affected.
Such matters may often
have been more suitable for inquiry or informal educational
processes.
- A
different approach is suggested involving robust front-end conciliation
followed by direct referral of unconciliated complaints
to the Proceedings
Commissioner. The process of conciliation of complaints would be carried out
within the organisation by experienced
and capable staff backed by the necessary
powers to bring the parties together and obtain documents. If the
conciliation
process is unsuccessful then, without further investigatory work and the present
practice of forming provisional and final opinions,
the matter would be referred
directly to the Proceedings Commissioner for consideration as to whether
proceedings should be initiated
before the Complaints Review Tribunal.
- There
is quite a widespread perception that the Human Rights Organisation acts as
conciliator, judge and prosecutor. It has been some
time since the Proceedings
Commissioner has also served on the Complaints Division. Nevertheless, a number
of stakeholders perceive
that the prosecutorial role sometimes interferes with
the more general educational mandate of the Commission, and that the Proceedings
Commissioner may be overly influenced by what has taken place in the
conciliation process. At the same time, it is clear that a complaints
function
is necessary so that the Commission maintains the ability, in a timely fashion,
to identify and respond to emerging problems.
- For
these reasons, there would be an advantage in creating a standalone office for
the Proceedings Commissioner. The Proceedings Commissioner
should not be a
member of the Council nor be located within the organisation. Its principal
function would be to ensure consistency
of standards in the cases submitted to
the Complaints Review Tribunal. It would have a broad discretion as to which
matters should
proceed. An independent check on this function could be
undertaken from time to time. The Proceedings Commissioner would have the
role
of public defender under the Human Rights Act, Privacy Act and perhaps the
Health and Disability Commissioner Act. For certain
purposes, such as a test
case of strategic importance, the new NHRI may wish to retain its own counsel
rather than to direct matters
through the Office.
- As
the Proceedings Commissioner could be involved in cases against the Crown, it
would not be appropriate for it to be attached to
or funded through the Crown
Law Office. To mitigate the problems of funding small agencies, the Proceedings
Commissioner should share
the same funding stream as the NHRI. The NHRI would
allocate funds to the Office as part of the annual budgetary
cycle.
- The
Complaints Review Tribunal hears matters under the Human Rights Act, Privacy Act
and certain matters under the Health and Disability
Act. Stakeholder opinions
were divided on whether the Complaints Review Tribunal should
be
replaced by District Court Judges presiding under a special human rights
warrant. It is considered that at this point the case for
a change of this type
has not yet been substantiated. The ability of the Tribunal to respond quickly
and in a less formal setting
was valued, and the Tribunal appeared to be well
served by Tribunals Division. On the other hand there was general support for
the
view that the Tribunal should be given increased status and the ability to
respond to higher volumes of cases involving difficult
legal issues. At present
there is only one person appointed for her legal expertise, who sits with a
number of lay people. Two or
three District Court Judges should sit on the
Tribunal. It should be renamed to reflect its greater status. Stakeholder
opinion was
divided on whether and how much lay people contributed to decisions.
It was suggested that certain parts of the jurisdiction were
under-represented
in this respect, e.g. the Privacy jurisdiction.
- Greater
doubt was expressed about the value of having lay people from the Tribunal sit
on matters concerning questions of law referred
to the High Court. High Court
Judges should have the freedom to elect in a particular case whether to sit with
lay people with appropriate
expertise or on a bench of 2 or more
judges.
Recommendations:
(i) The present elaborate
process should be replaced by a robust system of front-end conciliation. This
should be supported with necessary
statutory powers to compel the production of
information, and to bring people together for compulsory conciliation.
(ii) There should be a broader discretion at the front end not
to formally “receive” a complaint. The Health and Disability
Commissioner made a similar suggestion in her Report of October 1999. There
should also be discretion to pursue the matter by a more
suitable process if
conciliation is not considered appropriate. For example, an education programme
in the workplace (with the consent
of the employer) may be considered a more
appropriate response to a particular type of problem. If a matter is considered
of broad
importance, the Commission may, through its own
legal counsel take a case directly to the Tribunal. Such cases will usually
involve novel questions, systemic problems, or establish
jurisprudence.
(iii) Complaints data should be collated and the trends
systematically reported to the Chief Executive and Governing Council. The
systems should identify novel and systemic problems and those likely to attract
media publicity.
(iv) If conciliation processes are appropriate and the parties
fail to reach agreement, a low-level decision should be made whether
to refer
the matter on to the Proceedings Commissioner. If the decision is no, the
complainant could take the matter him or herself
– possibly under legal
aid.
(v) The file that goes to the Proceedings Commissioner should
not contain statements made “without prejudice for the purposes
of
conciliation”. Any NHRI generated notes of investigation should also
remain with the NHRI (and be subject to the usual
rules of discovery).
(vi) The Proceedings Commissioner should be institutionally
separate and have very broad discretion as to what cases he or she takes.
The
Proceedings Commissioner (perhaps renamed) would instruct a number of
barristers. The Office should be funded through the same
stream as the new NHRI.
The NHRI would allocate funds to the Office as part of the annual budgetary
cycle.
(vii) The conciliation and education process would be assisted
by a more through going system of case notes such as those available
from the
Employment Tribunal. These should be generated on behalf of the Complaints
Review Tribunal. The new NHRI should generate
guidelines, case notes, and codes
of practice on a more regular basis than presently. Such codes and guidelines
would be subject
to challenge in the Tribunal.
(viii) Two or three District Court Judges should sit on the
Tribunal. It should be renamed to reflect its greater status.
(ix) High Court Judges should have the freedom to elect in a
particular case whether to sit with lay people with appropriate expertise
or on
a bench of 2 or more judges.
PART SIX: EARLY CONSIDERATION OF HUMAN RIGHTS ISSUES AND
OBLIGATIONS IN POLICY MAKING
“Sound and vibrant national governance institutions
– legislatures, executives, and judiciaries – are crucial to
establishing enabling environments for eliminating poverty, promoting equality,
and protecting the environment. Strengthening governance
through human
rights-related capacity development will help achieve these
goals.”
Integrating Human Rights with Sustainable
Development
UNDP policy document
Human rights make good policy:
- This
section outlines various measures which are designed to enhance the integration
of New Zealand's international human rights obligations
into its policy making
processes. However, it should be noted that international human rights law is
one part of public international
law and several of the suggestions made in
relation to international human rights law have broader application. As the
Legislative
Advisory Committee (LAC) has noted, about one quarter of
New Zealand's public Acts raise international treaty issues (LAC,
Report No 6,
1991, paragraph 44). Accordingly, this report endorses the LAC’s
encouragement of a greater appreciation of the
place of international law
generally in legislative and policy processes.
- There
are many different strategies by which a state may promote and protect
international human rights. One approach is to permit
the prosecution of human
rights cases before domestic courts and international bodies. Another less
adversarial approach is to integrate
human rights into the state's policy-making
processes. Both approaches are legitimate responses to the binding nature of
international
human rights law. Obviously, the policy approach depends less on
the courts than the existence of good policy-making processes within
government.
Paragraph 5 of the Terms of Reference requires the consideration of this non-
judicial, policy-oriented approach to the
promotion and protection of human
rights.
- If
taken into account early in the policy making process, human rights tend to
generate policies that ensure reasonable social objectives
are realised by fair
means. They contribute to social cohesion and, as the Treasury’s Briefing
to the Incoming Government (1999)
observes: ‘Achieving and maintaining a
sense of social cohesion and inclusion is an important aspect of welfare in the
broadest
sense.’ The Briefing emphasises that social cohesion includes a
sense of fairness: ‘Fairness to all parties involved
extends both to the
processes by which things are done and to the outcomes themselves. Social
cohesion is low when individuals or
groups feel
marginalised’.
- Policies
which respect and reflect human rights are more likely to be inclusive,
equitable, robust, durable and of good quality. Critically,
such policies will
also be less vulnerable to domestic and international legal challenge.
Accordingly, domestic and international
human rights provisions should inform or
animate all relevant policy. For this to occur, human rights need to be taken
into account
early in the policy making process. Thus, one needs appropriately
trained officials operating good processes that are informed
by reliable
data.
- Of
course, consideration of human rights early in the policy process does not
guarantee good policy, but it makes ill-considered policy,
with all its
attendant difficulties, less likely.
- Today,
international human rights are seldom taken into account early in New
Zealand's policy-making processes. For the most
part, the practice appears to
be patchy, uneven and unsystematic. If it does occur, it may be on the
initiative of a particular
official or Minister. Thus, it is appropriate to
consider what can be done to ensure that due regard is given, at an early stage
of the policy making process, to New Zealand's binding international human
rights.
- New
Zealand has ratified the major international human rights treaties: ICCPR,
ICESCR, CERD, CEDAW, CAT and UNCROC. New Zealand's
practice is to ratify a
treaty only when it considers domestic laws and policies are in conformity with
the treaty's provisions.
This ensures that, at the time of ratification, NZ is
in broad conformity with its new international obligations. Of course,
mechanisms
are needed to ensure that legislation and policies, which are
developed after ratification, are also consistent with New Zealand's
international obligations.
Without such internal or administrative mechanisms, New Zealand could become
non-compliant and subject to proceedings before domestic
courts and
international bodies, such as the UN Human Rights Committee. Presently, New
Zealand has internal arrangements, in
the Cabinet paper process, that are
designed to ensure that all new legislative proposals are ‘vetted’
for conformity
with existing international obligations.
- When
legislative proposals are ‘vetted’, the exercise tends to have a
negative orientation. Geared towards technical compliance,
‘vetting’
is designed to check that the proposal does not breach New Zealand's
international obligations. It reflects
a risk management strategy, the primary
aim of which is to minimise the risk of legal proceedings. ‘Vetting’
and compliance
are corollaries of the court- based approach to the promotion and
protection of human rights. This approach is important but paragraph
5 of the
Terms of Reference is based upon a less adversarial, policy approach to the
realisation of human rights. While ‘vetting’
has a negative
orientation, the integration of human rights into policy is a much more positive
approach to human rights implementation.
- It
should be emphasised that there is not a single, simple arrangement by which
international human rights can be integrated into
policy-making processes. A
number of complementary initiatives and approaches are needed, several of which
are set out in this report.
None of these, however, will flourish without
political commitment and leadership that recognises the value and importance of
human
rights in the public sector and society at large.
Compliance: the role of the Cabinet Office:
- At
present, the primary mechanism for ensuring that international human rights
obligations are taken into account in the development
of the government's
policies and legislation is provided by processes arising from the submission of
papers to the Cabinet Office.
In some circumstances (e.g. requesting the
inclusion of a bill in the legislative programme, requesting the introduction of
a draft
bill, and requesting authorisation for the submission of regulations to
the Executive Council), the Cabinet Office requires those
responsible
to:
"Indicate whether the bill [regulation] complies with each of
the following with reasons if the bill [regulation] does not comply:
- the
principles of the Treaty of Waitangi;
- the
New Zealand Bill of Rights Act 1990;
- the
principles and guidelines set out in the Privacy Act 1993. (If the legislation
raises privacy issues, indicate whether the Privacy
Commissioner agrees that it
complies with the relevant principles.);
- relevant
international standards and obligations;
- guidelines
in the Legislation Advisory Committee report, 'Legislative Change: Guidelines on
Process and Content' (revised edition,
1991);
- Human
Rights Act 1993."
In the Cabinet Office Manual, this requirement comes under the rubric
'Compliance'. The Legislation Advisory Committee Report mentioned
in (e) adverts
to the possibility that "there might be an international standard, especially in
the human rights area, which is relevant"
(see para 44).
- Three
observations may be made regarding this Cabinet Office
requirement:
(i) Consultations have indicated that, in practice, the
requirement often generates a relatively superficial departmental consideration
of the human rights implications of the bill/regulation.
(ii) While the Cabinet Office requirement extends to
consideration of international human rights obligations, especially in relation
to (d) (international law) and (e) (LAC Guidelines), international human rights
are not explicitly mentioned. It appears that, notwithstanding
the Cabinet
Office requirement, international human rights standards and obligations seldom
receive the level of attention they
deserve. No doubt there are a number of
reasons for this, but it seems reasonable to assume that one of them is the
absence of an
explicit reference to New Zealand's international human rights
obligations.
(iii) The requirement to consider human rights comes late in the
policy making process when the relevant policy will have already
taken
shape.
- The
Cabinet Office human rights requirement in relation to the submission of
'standard papers', such as policy papers, is different
from the above - and
represents a significant improvement on it. Further to a Cabinet Office Circular
of December 1998 (CO (98) 19),
all policy submissions to Cabinet shall provide
the following:
“Human rights
All policy submissions must include a statement about whether there are any
inconsistencies between the proposal and the Human Rights
Act 1993. If there are
inconsistencies, provide a summary of the implications and comment on whether
and how the issues may be addressed
or resolved. The aim of this requirement,
which came into effect on 1 January 1999, is to provide Ministers with
information on the
implications of any policy proposals that are inconsistent
with the Human Rights Act 1993 before proposals reach the legislation
or
implementation stage. Each department needs to carry out its own assessment on
any potential inconsistencies."
- Some
features of this requirement for policy papers improve upon what is required in
relation to bills and regulations (see above).
In particular, as the Cabinet
Office Circular of December 1998 puts it:
"[existing] mechanisms
require consideration of human rights issues only once the proposals have
reached the legislative or regulatory
stage. Cabinet considered it would be
desirable to improve official processes to ensure that human rights issues
were also considered at the earlier policy development
stage." (italics
added)
It should also be noted that the Circular emphasises:
"A key
feature of the process is that it will remain the responsibility of each
department ... to assess and sign off on human rights
implications in the
department's area of responsibility."
The Circular continues:
"In carrying out this assessment
government departments should consider, where appropriate, consulting on the
proposal with agencies
that have experience or an interest in human rights
issues. Examples of agencies with
an interest or experience in human rights include the Ministry
of Justice (policy assistance), Crown Law Office (legal advice) and
the Human
Rights Commission."
- Equally,
however, the Cabinet Office requirement in relation to policy papers is, in some
respects, less favourable than those required
for bills and regulations. For
example, the policy paper requirement makes no mention of international
standards and obligations.
- The
Cabinet Office human rights requirement for bills/regulations and policy papers
should be made more simple, clear and consistent.
The same requirement should
apply to both bills/regulations and policy papers. The requirement should
address both national and international
human rights. There should be an
explicit reference to the major international human rights treaties ratified by
NZ. Departments
should continue to be required "to assess and sign off on human
rights implications in the department's area of responsibility" and
to consult
others with human rights expertise. They should be encouraged to identify the
human rights implications of a particular
initiative early in the policy making
process.
- Drawing
upon existing wording, the Cabinet Office's human rights requirement might be
along the following lines:
"National and international human rights
All policy submissions [bills/regulations] must include a statement which
confirms that the relevant national and international human
rights law was taken
into account early in the policy making process. Particular attention should be
given to the NZ Bill of Rights
Act 1990, Human Rights Act 1993 and the major
international human rights treaties ratified by New Zealand e.g. ICCPR, ICESCR,
CERD,
CEDAW, CRC and CAT. If there are inconsistencies, submissions should
provide a summary of the implications and comment on whether
and how the issues
may be addressed or resolved. Each department needs to carry out its own
assessment on any potential inconsistencies.
In an appropriate case, a
department should attach its human rights assessment of a particular policy
initiative."
- In
conclusion, it should be emphasised that this recommendation is designed to
simplify Cabinet Office processes by replacing different
human rights
requirements with a single consolidated human rights requirement that applies to
all situations.
Additional recommendations:
- If
introduced in isolation, a revised Cabinet Office human rights requirement is
unlikely to enhance significantly the quality of
governmental policy making. As
already observed, there is not one arrangement whereby human rights can be
appropriately integrated
into departmental policy making. Rather, a range of
realistic, practical and complementary arrangements are needed. Moreover, an
appropriate arrangement in one Department might be less suitable in another.
Further, while all Departments will sometimes have policies
and programmes with
significant human rights implications, some Departments will be dealing with
them on a much more regular basis
than others, such as Justice, Social Policy,
Health, Education, Labour, Children, Women, TPK, Treasury, MFAT, Police and
Immigration.
Accordingly, if human rights are to be integrated at an early stage
in policy making processes, all Departments will have to adopt
some of the
following recommendations, but some Departments, depending on the nature of
their work, will have to adopt more of the
recommendations than
others
- Chief
Executives have a general obligation to ensure that their departments provide
high quality advice on a wide-range of policy
issues. To be of good quality,
advice must take into account relevant international law at an early stage in
the policy-making process.
Thus, Chief Executives have an obligation to put
appropriate arrangements in place to provide for the integration of relevant
international
human rights norms in the early stages of departmental policy-
making processes. Such arrangements will help to ensure that the department
consistently delivers good quality policy advice. Accordingly, it is recommended
that each Chief Executive charges a senior official
with particular
responsibility for ensuring that realistic, practical and effective arrangements
are in place for the integration
of international human rights into the relevant
departmental policy- making processes.
- It
is recommended that the State Services Commission produce revised, generic
policy making guidelines that underscore the role of
domestic and international
human rights in the formulation of good policy.
- Departments
undoubtedly tailor policy-making guidelines to their particular needs. These
guidelines should explicitly acknowledge
that relevant international human
rights norms inform the Department's policy because consideration of human
rights helps to generate
good policy. They should also draw attention to the
specific international human rights instruments especially relevant to the
Department.
Further, Guidelines should outline the arrangements which are in
place to facilitate the integration of international human rights
into
departmental policy-making processes e.g. the possibility of preparing a
departmental human rights impact assessment in relation
to a particular policy
proposal (see paragraph 227 below).
- In
this context, training has a crucial role to play. Departments should ensure
that officials - especially those primarily responsible
for policy - are
provided with the appropriate level of training and development in relation to
human rights. Accordingly, as appropriate,
the induction of new staff should
include a module on human rights. From time to time, training updates will be
needed concerning
new international human rights instruments and other relevant
developments. This training might be conducted either in-house or
by others e.g.
the Human Rights Commission or its successor. The advisers’ consultations
revealed that at least one Department
has already introduced human rights
training along these lines.
- As
appropriate, departmental work programmes should expressly refer to the
promotion and protection of international human rights
in their projected
activities for the coming year. Four illustrative examples of what a
Department's work programme might include
are:
(i) The preparation
of a periodic human rights treaty body report;
(ii) Consideration of, and responses to, a human rights treaty body's recent
Concluding Observations;
(iii) In appropriate cases, preparation of human rights impact assessments on
departmental policy initiatives (see paragraph 227 below);
(iv) Arrangements which are designed to ensure that staff keep
abreast of relevant human rights developments, such as new international
instruments, General Comments recently promulgated by treaty bodies, and current
domestic case law.
- In
some cases, it will be appropriate and helpful for a brief human rights impact
assessment to be prepared by the department as a
new policy begins to take
shape. This would identify how the proposed policy initiative might enhance
human rights (e.g. by reducing
poverty and the economic marginalisation of
vulnerable groups) and how it might be inconsistent with human rights (e.g.
discrimination).
As already mentioned, an impact assessment might be appended to
a departmental submission to the Cabinet Office (see paragraph 219
above). It
would be helpful if a few illustrative impact assessments were prepared and made
available to Departments. These illustrative
examples might be prepared by the
inter- departmental human rights officials’ network referred to in
paragraph 229 below.
- Having
identified the key international human rights instruments that bear upon its
responsibilities, the Department should publish
this list in its annual report
or other public document that reports on the Department's recent activities.
Further, this annual
report or equivalent document should include a section that
outlines how the Department's recent initiatives have advanced the realisation
of international human rights. The activities of many Departments are relevant
to the reports periodically required by human rights
treaty-bodies, such as the
UN Human Rights Committee and UN Committee on Economic, Social and Cultural
Rights. Thus, in appropriate
cases, the human rights section of a departmental
annual report could feed into the Department’s eventual contribution to a
human rights treaty-body periodic report.
- Because
international human rights instruments do not fall neatly into the purview of
just one Department, a permanent inter-departmental
network of officials with
particular responsibility for international human rights issues should be
established. During consultations
it became clear that at least one such network
is already beginning to emerge in the context of children's rights. A more
formalised
network would facilitate the preparation of New Zealand's reports,
which have to be periodically submitted to human rights treaty-bodies.
To one
degree or another, these reports require inter-departmental collaboration.
Further,
the treaty-bodies' Concluding Observations invariably require inter-departmental
consideration. This officials network could enhance
inter-departmental co-
operation in relation to policies with an international human rights dimension.
For example, while such a
policy might be of particular concern to one
Department (e.g. Youth Affairs in relation to UNCROC, and Women’s Affairs
in relation
to CEDAW), its effective implementation might require the active co-
operation of other Departments. The network can help to generate
this inter-
departmental co-operation. This network might also provide illustrative human
rights impact assessments for Departments
(see paragraph 227), consider human
rights impact assessments or provide comments for the human rights analyses
required by the Cabinet
Office (see paragraph 219). Either MFAT or DPMC should
be charged with responsibility for maintaining this inter-departmental network
of officials working on international human rights issues.
- In
relation to the preparation of periodic reports to UN human rights treaty
bodies, the current position is as follows. Youth Affairs
has primary
responsibility for UNCROC; Women’s Affairs for CEDAW; and MFAT for ICCPR,
ICESCR, CERD and CAT. There are advantages
if Departments, which are working
especially closely to a particular area, also have primary responsibility for
the preparation of
the relevant treaty body report, as in the case of Youth
Affairs/UNCROC and Women’s Affairs/CEDAW. This is likely to enhance
a
sense of departmental ‘ownership’ of, and knowledge about, the
relevant international human rights law. Accordingly,
it is recommended that
primary responsibility for ICCPR, ICESCR, CERD and CAT be assigned to other
Departments. For example, primary
responsibility for ICCPR, CERD and CAT might
be assigned to the Ministry of Justice and ICESCR to the Ministry of Social
Policy.
Other Departments would retain a continuing responsibility to make a
significant contribution to the preparation of the reports e.g.
the Ministries
of Health and Education in relation to ICESCR. Given its overarching
responsibilities in the field of international
human rights, MFAT would retain
some key responsibilities for the reports, along the lines of its existing
obligations in relation
to Youth Affairs/UNCROC and Women’s Affairs/CEDAW.
In the preceding paragraph, it was noted that an inter-departmental network
of
officials working on international human rights could facilitate the
collaborative preparation of these treaty body reports.
- Consultations
revealed a situation which warrants further consideration by the relevant
departments. If a Department, such as Health,
determines that one of its policy
initiatives has national and international human rights implications, it may
wish to seek advice
from elsewhere within government. In relation to the
national human rights dimension of the issue, it should consult with the
Ministry
of Justice. If the national human rights dimension has an international
aspect, this too may be considered by the Ministry of Justice.
However, MFAT is
the Government’s legal adviser on international matters. As the line
between national and international law
is increasingly blurred, there appears to
be some lack of clarity about the overlapping roles of the Ministry of Justice
and MFAT.
From the standpoint of the Department seeking human rights advice, it
is not immediately clear where it should go. It should also
be noted that, if
the Ministry of Justice is to fully discharge its responsibilities, it has to be
familiar with the broad range
of relevant international human rights law - and
not just ICCPR. Further, if Departments enhance their integration of
international
human rights into policy making, it is probable that the Ministry
of Justice and MFAT will both be increasingly called upon to tender
domestic and
international legal advice, which will have obvious resource implications. In
these circumstances, it is recommended
that the Ministry of Justice, MFAT and
Crown Law consult with each other on this issue and report to their Ministers
with agreed
proposals for resolving this issue.
Summary of recommendations:
(i) All departments to
review the arrangements which are designed to ensure that international human
rights are integrated early in
departmental policy making processes. While it is
anticipated that all departments will be assisted by the adoption of some of the
following recommendations, given the varied nature of departmental work, it is
not expected that all recommendations will be adopted
by all departments. The
recommendations have particular relevance to those departments with policies and
programmes with significant
human rights implications, such as Justice, Social
Policy, Health, Education, Labour, Children, Women, TPK, Treasury, MFAT, Police
and Immigration.
(ii) A single consolidated human rights requirement for
submissions to the Cabinet Office;
(iii) A departmental senior official to be responsible for
ensuring realistic, practical and effective arrangements are in place by
which
human rights are integrated into policy making processes;
(iv) State Services Commission to revise generic policy making
guidelines so they give due regard to human rights;
(v) Departmental policy making guidelines to give due regard to
human rights; such guidelines to list the international human rights
instruments
of particular relevance to that department’s responsibilities;
(vi) Departments to ensure their staff, especially policy
advisors, receive appropriate training in relation to human rights;
(vii) Departmental work programmes to identify the
Department’s activities which are designed to enhance the promotion and
protection
of human rights;
(viii) In some circumstances, a departmental human rights impact
assessment should be prepared in relation to a particular policy;
(ix) Departmental annual reports (or their equivalent) to list
the international human rights instruments of particular relevance
to the
department and to include a section which outlines how the Department’s
recent activities have advanced the realisation
of human rights;
(x) To establish a permanent, inter-departmental network of
officials with particular responsibility for human rights;
(xi) To assign, with consequential resource allocation, primary
responsibility for the preparation of periodic reports to Departments
working
especially closely to the relevant area e.g. ICCPR, CERD and CAT to Justice and
ICESCR to the Ministry of Social Policy;
(xii) The Ministry of Justice, MFAT and Crown Law should review
their overlapping responsibilities for the provision of advice on
international
human rights law and report to their Ministers with agreed proposals for
resolving this issue.
PART SEVEN: A NEW ZEALAND NATIONAL PLAN OF ACTION FOR THE
PROMOTION AND PROTECTION OF HUMAN RIGHTS
“[N]ational action plans can be the concrete reflection
of a deliberate policy to promote and protect human rights as well as
a useful
tool to coordinate between different government departments and authorities in
this area. Indeed, the national plan of action
can open communication for action
amongst all relevant actors in society to identify and implement strategies for
effective national
progression.”
Justice P N Bhagwati, Regional Adviser on International Human Rights
Standards for the Asia-Pacific Region
Should New Zealand have a National Plan of Action?
- Earlier
in this report, it was observed that the importance of human rights is not well
understood in New Zealand. The consultative
preparation of a National Human
Rights Plan of Action (NPA) could significantly enhance governmental and popular
awareness of, and
support for, human rights and the values they represent.
Consultations revealed extensive support for the NPA proposal. Accordingly,
it
is recommended that the Government should initiate a process for the
consultative preparation of a NPA in New Zealand.
- NPAs
gained currency at the World Conference on Human Rights held in Vienna during
1993. The Vienna Declaration and Programme of Action
recommended "that each
State consider the desirability of drawing up a national action plan identifying
steps whereby that State
would improve the promotion and protection of human
rights" (paragraph 71). Since the World Conference, New Zealand and other
countries
in the Asia-Pacific region have reaffirmed on several occasions their
commitment to the development of NPAs. This includes the Sixth
Workshop on
Regional Arrangements for the Promotion and Protection of Human Rights in the
Asian and Pacific Region (Tehran, 1998);
the Seventh Workshop on Regional
Arrangements (Delhi, February, 1999); the inter-governmental Workshop on
National Plans of Action
for the Promotion and Protection of Human Rights
(Bangkok, July 1999); and the Eighth Workshop on Regional
Arrangements (Beijing, 2000). In view of its international endorsements of the
NPA initiative, it is now timely for New Zealand to
embark upon its own NPA
process.
- It
should be noted, however, that relatively few states have formulated NPAs. While
171 states adopted paragraph 71 of the Vienna
Declaration and Programme of
Action in 1993, to date only some 12 states have finalised NPAs: Australia,
Malawi, Philippines, Brazil,
Ecuador, Indonesia, Mexico, South Africa,
Venezuela, Bolivia, Latvia and Norway. Australia campaigned at Vienna for the
adoption
of paragraph 71 and was the first state to finalise a national plan of
action (1994). Presently, Canberra is working on a new NPA.
It is not proposed
to subject these precedents to detailed analysis here. They differ
significantly. For example, the existing
NPAs vary in length from 3 pages to
more than 150 pages, while their time-frames vary from 3-5 years to an
indefinite period. The
UN Office of the High Commissioner for Human Rights is
finalising a 'Handbook on National Human Rights Plans of Action' which is
likely
to introduce a greater degree of consistency.
- In
essence, a NPA is a state's national strategy for the greater promotion and
protection of human rights. The purpose of a NPA is
to identify measures that
develop or strengthen national and local human rights capacities. A NPA places
human rights improvements
in the context of public policy, so that government,
individuals, groups, communities and others can endorse human rights objectives
as practical goals, devise programmes to ensure their achievement, engage all
relevant social actors, and allocate appropriate resources.
Critically, the
process by which a NPA is prepared can itself be a powerful device for the
enhancement of human rights, and the greater
appreciation of diversity, across
society.
- One
of the advantages of the NPA approach is that it recognises each state has its
own unique political, cultural, historical and
legal context. Thus, a NPA can be
crafted to suit the characteristics and needs of a particular society.
Nonetheless, the evidence
also suggests that some general principles apply to
all NPAs, including the following:
- the NPA should
be a truly national undertaking;
- the NPA demands
both a consultative process and measurable
outcomes;
- the NPA must be
built around a commitment to universal human rights standards and implementation
of a state's binding international
human rights obligations;
- the NPA should
adopt a comprehensive approach to human rights, giving equal attention to all
categories of rights;
- the NPA should
be action-orientated;
- the NPA should
include mechanisms for monitoring and reviewing progress.
- In
brief, the benefits of using a NPA as a vehicle for improving human rights
include the following:
- the consultative
preparation of a NPA can raise awareness of, and support for, human rights
within government and the wider community;
- the NPA can be a
tool of sound public administration and good governance, leading to a stronger
rule of law, greater national cohesion
and respect for diversity, and an
enhanced quality of life;
- the NPA lends
itself to a non-confrontational approach to the consideration of human rights
issues;
- the NPA can be
practical: it can identify realistic activities which are designed to reach
achievable targets;
- the NPA can
effectively address the concerns of specific vulnerable groups;
- the NPA can
strengthen institutions and groups dealing with human
rights.
All of these benefits could accrue to New Zealand if it were to initiate a NPA
process.
- In
this context, there are four related initiatives. First, New Zealand has not yet
prepared a plan of action for children as anticipated
by both the World Summit
for Children (1990) and the UN Convention on the Rights of the Child. Second,
the UN General Assembly has
designated 1995-2004 as the UN Decade for Human
Rights Education. The General Assembly has welcomed a Plan of Action for the
Decade,
paragraph 11 of which calls upon Governments to develop a national plan
of action for human rights education. Paragraph 58 suggests
that a plan of
action for human rights education should form "an integral part of
a
comprehensive national plan of action for human rights." While the Terms of
Reference focus on a national plan of action for human
rights, it is recommended
that New Zealand integrate such a project with national plans of action for both
children’s rights
and human rights education.
- Thirdly,
the Race Relations Office has initiated a strategic race relations Agenda for
New Zealand. Thirty community consultations
have already been conducted. "It is
expected that this strategy will inform a decade of education in homes, schools,
communities
and the work place. Likewise it will inform public policy
development for a racially-harmonious society." Fourthly, a committee has
recently been established to provide advice to the Minister for Disability
Issues "on goals, barriers, priority action areas and
targets for the New
Zealand Disability Strategy." These two important initiatives, and others like
them, should inform New Zealand's
NPA which is the focus of this
report.
Recommendations on the NPA development process:
- Having
considered whether or not New Zealand would benefit from a NPA, the Terms of
Reference request "a process for the development
of a New Zealand National Plan
of Action". Practice suggests that there are four phases in relation to a NPA:
a preparatory phase, development phase, implementation
phase and monitoring phase. (Guidance on each phase will be available
from the UN Handbook to which reference has already been made.) The following
general
remarks relate to the preparatory and developmental
phases:
The role of government
From the outset, it is crucial that the government's role in relation to the NPA
is both central and clear. It is not necessary for
government to drive the NPA,
but all levels of government - including the highest – should make a
genuine and sustained commitment
to the project's success. For example, this
commitment might be signalled by Cabinet approval, a Prime Ministerial launch
and the
availability of adequate resources.
A consultative process
Throughout the process, civil society (non-governmental organisations, community
groups and others not directly associated with government)
should be widely
consulted. From the outset, modalities must be found for appropriate
consultation with Mäori. At the end
of the day, much of the plan will
probably depend upon governmental implementation. A plan characterised by
unrealistic (and subsequently
unrealised) expectations is unhelpful and may even
be counter-productive. A genuine process of consultation, however, should
produce
an understanding that provides the basis for a realistic, but
challenging, plan that enjoys broad community support.
A focal agency
A specific agency must be charged with primary responsibility for driving the
project. This agency could be an arm of government,
such as the Ministry of
Justice, or an organ beyond government, such as a NHRI. For reasons outlined
below, the focal agency for
New Zealand's NPA should be the new NHRI proposed in
this report.
Preparatory principles
After appropriate consultations, the focal agency should prepare some principles
relating to the initial stages of developing the
plan. These preparatory
principles should be brief and address preliminary issues, e.g. who should be
involved in the initial NPA
process and what form the preparatory process should
take. The principles might signal the organisation of initial consultative
meetings
about the NPA process.
Steering Group
Although primary responsibility for the NPA will lie with the focal agency, the
agency will need the active support, guidance and
advice of a high-level
Steering Group. This Group should be as representative as possible of all
relevant actors, including government,
parliamentarians, the judiciary,
Mäori, civil society, vulnerable groups, the business community and the
media. The Steering
Group might establish thematic or other working groups.
Broadly, the Steering Group will help the focal agency prepare and consider
a
baseline study (see below), develop priorities and strategies, identify key
components of the NPA and, in due course, comment on
drafts of the NPA.
Baseline study (or national human rights status
report)
At an early stage, the focal agency will have to prepare a baseline study that
sets out the existing human rights context in New
Zealand. This need not be a
scholarly and original piece of work; rather, it could pull together existing
information and data (from
government, NHRIs, NGOs, UN treaty-bodies etc). It is
difficult to see how a NPA can plot the way forward without the focal agency
first establishing roughly where the New Zealand human rights environment is
today.
- Perhaps
the most finely balanced judgement to make about the NPA proposal is selection
of the appropriate focal agency responsible
for the initiative on a daily basis.
Experience overseas gives no clear guidance on this issue. In Australia and
Norway, the process
was led by the government. In the Philippines and Mexico,
NHRIs played the central role. In some other cases, it is difficult to
identify
a single lead agency (South Africa). Significantly, however, even if the lead
agency was not governmental, invariably
government was intimately involved in
the NPA process.
- In
the New Zealand context, there are two main candidates for the focal agency.
First, a department of government (e.g. Ministry of
Justice, DPMC, MFAT) and
second the proposed new NHRI. With one important qualification, the NHRI would
be the most appropriate
focal agency for the development of New
Zealand’s NPA. Elsewhere in this report, it is noted that neither the
Human Rights Commission nor human rights have a high profile in New Zealand. To
address this state of affairs this report suggests
measures, including
institutional reforms. Accordingly, it would be appropriate to give the new NHRI
primary responsibility for the
NPA because the initiative provides the
organisation with a unique opportunity to raise its public profile, build its
networks, and
shape the human rights culture of New Zealand. Successful
completion of this task would firmly establish the new organisation as
the
country's pre-eminent and indispensable human rights
agency.
- The
qualification to the above recommendation is that, if the NHRI is appointed
focal agency, nonetheless senior representatives of
government must be very
closely involved at all stages of the NPA process. Inevitably, many elements
of
the NPA, as finally adopted, will require governmental action or endorsement. It
is critical, therefore, that government has a sense
of 'ownership' of both the
NPA process and outcome. Thus, it is only recommended that the NHRI is appointed
focal agency, provided
senior governmental representatives remain closely
engaged throughout the process.
- Given
the consultative nature of the NPA process, it is anticipated that it will take
between 12-18 months from beginning to end.
It should be emphasised that the
project's success will depend upon the availability of adequate resources. In
this context and considering
the need to make progress with creation of the new
NHRI, planning for the NPA should commence in late 2000 so that funding can be
secured for the 2001-2002 fiscal year. This would enable the NPA to be completed
by December 2002.
Summary of recommendations:
(i) The Government to
initiate a process for the consultative preparation of a National Human Rights
Plan of Action (NPA) in accordance
with the Vienna Declaration and Programme of
Action (1993). A NPA is a state’s national strategy for the greater
promotion
and protection of human rights. The consultative preparation of a NPA
can raise awareness of, and support for, human rights within
government and the
wider community. It can be a tool of sound public administration and good
governance, leading to a stronger rule
of law, greater national cohesion and
respect for diversity, and an enhanced quality of life. A NPA should effectively
address the
concerns of vulnerable groups.
(ii) To be effective, the NPA will require:
- that
all levels of government, including the highest, make a genuine and sustained
commitment to the project’s success;
- adequate
resources; and
- wide
public consultation.
(iii) The new NHRI proposed in this report should be the focal
agency with primary responsibility for driving the NPA. A high-level,
broad-based Steering Group should support the focal agency in this regard.
Since many elements of the NPA, as finally adopted, will
require governmental
action or endorsement, senior representatives of government must be closely
involved at all stages of the NPA
process.
APPENDIX
Consulted Groups/Individuals Individuals
Barnett,
Tim – Chair of Justice and Electoral Select Committee Bathgate, Susan
– Complaints Review Tribunal
Bedggood, Professor Margaret
Bell, Sylvia – Office of the Race Relations Conciliator Brereton, Ross
– Human Rights Commissioner
Bulog, Gary – Office of the Privacy Commissioner Butler, Andrew
Butler, Petra Chen, Mai
Chiam, Sou Hong – Human Rights Commission Dalziel, Hon Lianne –
Minister of Immigration Dodds, Sue
Dyson, Ruth – Minister for Disability Issues Elwood, Sir Brian –
Chief Ombudsman Epati, Semi
Fenwick, Mark
Franks, Stephen – ACT Justice spokesperson Goddard, Justice Tom
Gregg, Catherine – Office of the Health and Disability Commissioner
Handley, Richard – Human Rights Commission
Harre, Hon Laila – Minister of Youth Affairs and Women’s Affairs
Hart, Rose
Holden, Anne – National Council of Women in NZ Holden, Caroline –
Ministry of Women’s Affairs Hoskings, Peter
Huscroft, Grant Jefferies, Pamela Joychild, Francis Keith, Sir Kenneth
Koopu, Areta – Human Rights Commissioner
Ladley, Andrew – Independent Adviser to the Deputy Prime Minister
Lakshman, Karun – NZ Federation of Ethnic Councils Lawrence, Chris –
Proceedings Commissioner
Le Mesurier, Rachael - Citizens Advice Bureaux Inc Lee, Melissa – Asia
Vision
Lee, Sandra – Associate Minister of Mäori Affairs Longworth,
Elizabeth
MacCormack, Kevin - NZ Council for Civil Liberties Mahony, Judge
Marshall, Deborah – Office of the Privacy Commissioner McBride, Tim
McClay, Roger – Commissioner for Children
McNaughton, Trudi – Equal Employment Opportunity Trust Newton, Bobby
– Human Rights Commission
O’Regan, Sir Tipene O’Shea, Sue – IHC NZ Inc
Paterson, Ron – Health and Disability Commissioner Perese, Simativa
Prasad, Rajen – Race Relations Conciliator Quentin-Baxter, Alison
Radford, Brenda – Office of the Race Relations Conciliator Reeves, Sir
Paul
Rishworth, Paul Robertson, Justice Bruce
Robson, Matt – Coalition Consultation Partner on Justice issues Ross, Jim
– NZ Age Concern
Roth, Paul
Rushworth, Geoff – The Actuary Satyanand, Justice Anand – Ombudsman
Shaw, Tony
Shueng, Wong Liu – Office of the Race Relations Conciliator Simpson, Ced -
Amnesty International NZ
Singham, Mervin – Office of the Race Relations Conciliator Slane, Bruce
– Privacy Commissioner
Smith, William – Auckland Refugee Council Stevens, Bob
Stewart, Blair – Office of the Privacy Commissioner
Tanczos, Nandor – Green Party
Thompson, Rebecca – NZ Foundation for the Blind Tuilotolava, Mary
Turia, Hon Tariana – Associate Minister of Mäori Affairs Wallace
KNZM, Hon Justice John
Whiteford, Geraldine – Human Rights Commission Wicks, Wendi –
Assembly of People with Disabilities Williams, Hare
Wilson, Hon Margaret – Associate Minister of Justice
NGOs/Government Departments Auckland Council for Civil
Liberties Caritas Aotearoa NZ
Citizens Advice Bureaux Inc
Department for Courts (Tribunals Division) Department of Internal Affairs
(Ethnic Affairs) ECPAT NZ
Mäori Women’s Welfare League Ministry of Education
Ministry of Foreign Affairs and Trade Ministry of Health
Ministry of Justice Ministry of Social Policy
Ministry of Women’s Affairs Ministry of Youth Affairs National
Women’s Refuge Inc Newspaper Publisher Association NZ
Employers
Federation
NZ Law Society
NZ Law Society’s Human Rights Committee
NZ Society for the Intellectually Handicapped (Inc) QWIL
Refugee and Migrant Services Royal NZ Foundation of the Blind State Services
Commission
Te Puni Kokiri
The Salvation Army The Treasury
United Nations Association of NZ (Inc) Wellington Women’s Lawyers
Association Women’s Health Action Trust
Youth Law Project
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