Clark’s human rights pedigree examined

As New Zealand’s former Prime Minister, Helen Clark, puts her hand up for a top UN job, how does NZ’s record on human rights compare with Australia’s, where a bill of rights consultation is just starting? A lawyer takes a closer look at our near-neighbour.

Clark for Third World Development?

By A Person *

We know a lot about human rights laws and practices in Australia, but what do we know about our next-door neighbours and their human rights practices?

Following the recent announcement that former New Zealand Prime Minister Helen Clark has made the short-list for a top job with the United Nations – specifically, the administrator of the UN Development Programme – The author thought it would be a good idea to examine NZ’s human rights record over the time that Clark has been in power (from 1999 to 2008, serving three consecutive terms).

In May 2009, NZ’s first periodic review of its human rights record will take place in Geneva, under UN Human Rights Council’s Universal Periodic Review mechanism for evaluating states’ commitments to human rights.

The author perused the NZ Human Rights Commission’s ‘Report on New Zealand’s Human Rights Performance’, published in 2008 and available at the Commission’s website at www.hrc.co.nz .   The report was published as the Commission’s submission and outlines where NZ is fulfilling, or failing to fulfil, its international human rights obligations. In brief, here’s what was found:

Treaties and legislation

There are two main pieces of legislation in NZ to specifically promote and protect human rights:

  • The Human Rights Act 1993; and
  • The NZ Bill of Rights Act 1990.

The Human Rights Act establishes the Human Rights Commission, which advocates and promotes respect for human rights in NZ and encourages harmonious relations between individuals, and between social and cultural groups.  The Commission also hears and deals with complaints on discrimination, and issues reports and advises on human rights issues.

The NZ Bill of Rights Act limits the actions of government (including the judiciary and local authorities) that interfere with the rights of individuals.  Newly introduced laws are to be consistent with the Bills of Rights Act, although it seems that the government is only required to provide justification for the inconsistency – it is unclear whether the law itself can be struck out on this basis.

The Bill of Rights Act sets out a range of civil and political rights.  These arise from the United Nations International Covenant on Civil and Political Rights.

These rights include the right to freedom of expression, to religious belief, to freedom of movement, to be free from discrimination, and medical experimentation. The Act places an obligation on the Government and ‘anyone carrying out a public function’ to observe these rights. Actions can be brought in the courts for breach of these rights.[1]

NZ has signed a number of international human rights instruments.  Under the Clark government, NZ signed and ratified the United Nations Convention on the Rights of the Child (signed 1 October 1990, ratified 6 April 1993).

More recently it became signatory to the Convention on the Rights of Persons with Disabilities (signed 30 March 2007, ratified 26 September 2008).

It has also ratified the Optional Protocol to the Convention Against Torture, and gave effect to its preventative provisions through national legislation in June 2007.

Whilst signing and ratifying these treaties are a good start, NZ has not however entirely incorporated these human rights standards in domestic law and policy, so that these rights are not a reality for all New Zealanders.

Democratic and Civil Rights

Under the Bill of Rights Act, NZ citizens have the right to freedom of expression; freedom of peaceful assembly; freedom of association; and freedom of thought, conscience, religion and belief.  These rights can be enforced by individuals in NZ courts, against anyone in government, including the judiciary and local government.

The Bill of Rights Act also contains the right to freedom of movement.  However, this is not the case for people who are not in NZ lawfully, whose rights of movement may be interfered with under immigration law and policy.

The 2007 Electoral Finance Act has also been very controversial as it places restrictions on the spending amounts of lobby groups, attracting criticism that the Act attacks free speech[2] and having has an adverse effect on the ‘extent and type of participation in political and campaign activity.’[3]

Equality and non-discrimination

The intention of enacting the Human Rights Act was to ensure fair and equal treatment of NZ citizens.  The Human Rights Commission, established under that Act, has the power to resolve disputes relating to unlawful discrimination.

NZ has had legislation to address discrimination against people with disabilities since 1993.  However, the Commission’s Report suggests that disabled people are still facing ‘significant barriers to full participation and society and employment’.[p4]

For Maori, inequality persists particularly in the over-representation of Maori in prisons (some 50 per cent) and in the criminal courts.  This is said to be due to a degree of bias in the justice system that leads to Maori being more likely to be apprehended.  There have been some government initiatives to address this, though, with some social and economic improvements.

According to the Report, NZ women have progressed significantly in participation in the labour market generally, but equality was found to be lacking in corporate governance, and in senior management in both private and public sectors.  There is also a gender pay gap that disadvantages women.

The Bill of Rights Act gives New Zealanders the right to freedom from discrimination on the grounds of ‘sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation’.[5]  The government cannot deprive ethnic, religious or linguistic minorities of the right to participate in their culture, practice their religion or speak their group’s language.  These rights can be enforced in NZ courts.

Right to life, liberty and security of the person

NZ has a legislative framework and structures in place to protect security of the person, consistent with human rights standards.

However, domestic violence was an issue that was highlighted in the Report.  It was recommended that NZ intensify measures to combat domestic violence and produce more robust, statistical evidence and data so that the Government can appropriately respond.

Government measures included actions to reduce violence against children and youth, including repealing section 59 of the Crimes Act that dealt with corporal punishment by parents and guardians.

Under the Bill of Rights Act, citizens have the right not to be deprived of life; subjected to torture, cruel treatment or punishment; subjected to medical or scientific experimentation; and the right to refuse medical treatment.  These rights can be positively enforced in NZ courts by individuals against the government.  Again, note that the government may provide justifications for interfering with these rights.

Right to an adequate standard of living

The Clark government introduced measures to combat poverty.  However, economic circumstances has seen poverty increase over recent years, with 11 per cent of New Zealanders living in poverty (poverty being identified as 60% of the median household income after housing costs), and increased ethnic disparities.  According to the report, children in poorer families are at a greater risk of abuse and neglect, and of missing out on education and employment opportunities.[6]

Right to education

NZ’s education system ‘generally performs well’ but it was found that ‘equalities in access, participation and achievement indicate that the right to education is not fully realised for all students – particularly among Maori and Pacific students, children with disabilities and students from poor families’.[7]

Migrants, refugees and asylum seekers

NZ has provided refuge for a number of the world’s vulnerable refugees in recent years, and has also developed a national settlement strategy and settlement action plan.  However, the report indicated that immigration policy has become less human rights compliant.  Fewer asylum seekers reach New Zealand due to the practice of interdiction (intercepting people before they reach the country’s shores).  Many asylum seekers are automatically detained, often for lengthy periods if they refuse to sign papers permitting them to be deported.

An Immigration Bill developed in 2007, likely to become law, has serious human rights deficiencies despite a lengthy period of consultation.  For instance: the ‘special advocate’ provisions applied to people deemed a security risk; lack of any safeguards against detaining children and young people; reluctance to consider granting residency to people with disabilities who are considered a burden on the health system; and a prohibition against the Human Rights Commission’s involvement in immigration matters.[8]

Gay rights

NZ under the Clark government has, according to the Commission, seen greater recognition of the right to equality of gay, lesbian, bisexual and transgender people.  This has included the Civil Union Act 2005.[9]

Counter-terrorism legislation

Counter-terrorism legislation was found to contain ‘ambiguous and poorly defined terms’, which allowed for a degree of surveillance which impinges upon the rights to freedom of association and freedom of expression.[10]

Search, arrest and detention

The Bill of Rights Act gives New Zealanders the right not to be subjected to unreasonable search or seizure; and arbitrary arrest and detention.  This imposes a positive duty on the government not to impinge on these rights.  People legally arrested or detained have procedural rights such as being told of the reason of their arrest or detainment, having access to a lawyer, and being brought before a court as soon as possible if they are not released.

In 1994 as the newly elected leader of the Labour Party, Helen Clark delivered a speech on human rights and foreign policy to the Auckland University Centre for Peace Studies, in which she said:

“Respect for human rights is a widely shared value, irrespective of culture. The fact that it is not shared by authoritarian regimes and elites which sustain them, whether they be, for example, nominally communist, fundamentalist Islamic, or just plain autocratic, does not detract from that. The author cannot believe that it is only those with so-called Western values who find repugnant the lashing of a teenager with a rattan cane in Singapore, or the years of house arrest of Aung San Suu Kyi in Burma. Inhumanity, including cruelty and unusual punishment, is something which must always be opposed.”

[1] http://www.hrc.co.nz/human-rights-environment/human-rights-legislation/new-zealand-bill-of-rights-act (updated link)

[3] Annual Report of the Electoral Commission:http://www.elections.org.nz/news-media/annual-report-2008 (updated link)

[4] Human Rights Commission, Report on New Zealand’s Human Rights Performance (2008), p6 at http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/23-Feb-2009_14-49-08_Report_on_NZs_Human_Rights_Performance.pdf

[6] Human Rights Commission, Report on New Zealand’s Human Rights Performance (2008), p7 at http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/23-Feb-2009_14-49-08_Report_on_NZs_Human_Rights_Performance.pdf

[7] Ibid, p8.

[8] Ibid.

[9] Human Rights Commission, Report on New Zealand’s Human Rights Performance (2008), p3 at http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/23-Feb-2009_14-49-08_Report_on_NZs_Human_Rights_Performance.pdf

[10] Ibid, p9.

* Note: : The author was originally identified by name, but has subsequently decided to request the removal of their name from CLA pages on the internet wherever possible. We have complied in this instance, to respect their privacy. However, we are not necessarily able to remove name, photo, CV, etc from versions/server holdings which we do not control.

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