New Zealand National Universal Periodic Review Report

9 April 2009

3. Promotion and Protection of Human Rights

3.1. Cooperation with Human Rights Mechanisms

New Zealand cooperates with treaty bodies and special procedures, and supports the work of OHCHR.  New Zealand’s treaty body reporting is up to date following the recent submission of New Zealand’s third periodic report under ICESCR.  New Zealand has a standing open invitation to all UN Special Procedures mandate holders and this will continue without restrictions.  The Government will look at ways to improve New Zealand’s record of responding to questionnaires sent by special procedures.  New Zealand will continue to make regular non-earmarked financial contributions to OHCHR.

3.2. Implementation of International Human Rights Obligations

3.2.1. Equality and Non-Discrimination

Māori

Māori represent nearly 15% of the population (2006 Census).  The Māori population continues to grow and is relatively young, with 53% aged less than 25 years in 2006.  By 2026, 19% of the New Zealand population aged between 15-39 years will identify as Māori.[13]

Despite recent socio-economic improvements, inequalities still persist for Māori in education, health, employment and income.  In 2007 10.1% of Māori students left school with little or no attainment compared to 3.5% of New Zealand European, which is an improvement on previous years.  In the year ended December 2007, just 9% of Māori held a tertiary qualification at bachelor’s degree level or above compared with 22% of European.  In 2000-02 (the most recent years for which data is available) Māori female life expectancy was 73.2 years, 8.7 years below that of non-Māori females (81.9 years), and Māori male life expectancy was 69.0 years, 8.2 years below that of non-Māori males (77.2 years).  Māori are also more likely to be unemployed than European and earn less.[14]

The Government recognises that it is essential for New Zealand’s future to address inequalities for Māori and is taking immediate action to address the impact of the economic crisis on Māori.  In January 2009 the Minister of Māori Affairs convened a Māori Economic Summit and is leading a Māori Affairs Ministerial Taskforce on Economic Development.

The Government is also working towards the development and implementation of the Māori Potential Approach across the public sector. Te Puni Kokiri (Ministry of Māori Development) is leading this work in cooperation with other Government departments and community groups.  This approach is intended to guide the development and implementation of public policy that is derived from and reflects the strengths and aspirations of Māori.  For example, the Government is implementing a specific Māori education strategy, which has been developed to focus Government, school and teacher practice on lifting the achievement of Māori students through evidence based practice. 

Women

New Zealand is ranked highly in international measurements of gender parity,[15] but challenges remain including how to value the significant contribution that women make through their unpaid work; addressing the potential under-valuing of female-dominated occupations; reducing violence against women; and ensuring women have access to equal opportunities in those areas of the workforce where they are still poorly represented.[16]  Women’s labour market participation rate is lower than men’s participation.[16]  Women are more likely to work part-time and earn less.[16]  Women remain under-represented in leadership and governance positions in the public and private sector.[17] Women are also under-represented in local Government positions, legal and judicial positions, the media and science.[18] 

The Ministry of Women’s Affairs is a separate government agency that works to improve outcomes for New Zealand women.  In order to increase the number of women in governance positions in the public sector, the Ministry of Women’s Affairs maintains a database of qualified women and nominates suitable candidates for vacancies when they arise.  While there has been an improvement in Māori and Pacific women’s participation in paid employment and their income levels, they continue to earn less than women of European ethnicity[19] and are more likely to work in low skilled occupations, which are associated with lower wages.[20]  There has been slow progress in narrowing the overall gender pay gap, which is around 12%, with an average improvement of 0.45% annually over the last decade.[[21] top of page

As part of the Pay and Employment Equity Plan of Action, all government departments, the public health sector, public school sector and kindergartens have completed pay and employment equity reviews (audits) and response plans.  A number of tertiary education institutions, government entities and local government organisations are currently undertaking reviews.  As a result of the reviews, two pay investigations were underway for the female-dominated occupation groups of social workers and education support workers.  In March 2009, the Government decided to discontinue these two pay investigations due to current economic and fiscal pressures.  However, public sector chief executives are still required to ensure that issues of natural justice, human rights and inequality are addressed as part of good management practice and being a good employer.
 
The Government has adopted a family assistance package to help improve household incomes and provide incentives for parents, including sole parents who are predominantly women, to move into paid work.  Incentives include tax credits, an accommodation supplement and childcare subsidies.  New Zealand has a national paid parental leave scheme which provides for fourteen weeks paid leave, with a qualifying period of employment of six months.  Under existing legislation, employees with caring responsibilities can seek flexible working arrangements.

Women have better overall health outcomes than men.  Women’s preventative health services have also improved with the introduction of free immunisation for girls and young women aged between twelve to eighteen years against the cause of most cervical cancers and free biennial breast cancer screening for women aged 45–69.  An independent review conducted by the Perinatal and Maternal Mortality Review Committee has recognised the need for more comprehensive reporting of perinatal and maternal deaths that includes not only ‘direct’ maternal deaths, but also ‘indirect’ deaths including those related to surgery, psychiatric illness and family violence.  The review also stressed the need for continued support for national reporting of maternal deaths, to identify women at risk due to poor maternal mental health, and for further detailed analysis of the higher rate of stillbirths and neonatal deaths among Māori and Pacific Island women.

Persons with Disabilities

The Government recognises the challenges faced by persons with disabilities in New Zealand in areas such as employment, education and health. In 2006, an estimated 660,300 of people in New Zealand, representing 17% of the population, reported having an impairment.[22]

Over the last fifteen years, New Zealand has made progress towards improving the rights of persons with disabilities, including ensuring they have equal access to employment rights, conditions and entitlements; requiring all refurbished buildings which the public can enter to be made accessible to persons with disabilities; and recognising New Zealand Sign Language (NZSL) as an official language in New Zealand.  In New Zealand, there is a specific Government minister for disability issues and an Office for Disability Issues (ODI). ODI is responsible for promoting and monitoring implementation of the New Zealand Disability Strategy, and the Minister for Disability Issues is required to report annually to Parliament on progress.

Parliament’s Social Services Select Committee concluded an Inquiry into the Quality of Care and Service Provision for People with Disabilities in 2008.  The Government response to the Inquiry recognises that improvements can be made in leadership and frontline services for persons with disabilities, in improving advocacy and complaints services and in empowering persons with disabilities to have more say over their personal support services.  The Government has committed to a work programme to address many of the Select Committee’s concerns, and will establish a Ministerial Committee on Disability Issues to improve Ministerial-level collaboration.

For those with mental illness, discrimination and stigma remain significant barriers to recovery.  Since 1997 the Like Minds, Like Mine campaign has been aimed improving public awareness, understanding and acceptance of mental illness.  For the past three years, there has also been an initiative to reduce the impact of depression on the lives of New Zealanders, by aiding early recognition, appropriate treatment, and recovery.

The Minister of Health has approved a work programme reviewing how the responsiveness and performance of the primary health care system can be improved for people with intellectual disabilities.

Senior Citizens

At the end of December 2006, the population in New Zealand aged 65 years and over was 519,940 – 12% of the total population.  Projections indicate that the older population will continue to grow and will double to reach over 1 million by 2028.[23]  Older people are potentially at risk from ageist attitudes, employment discrimination, lower incomes than 15-64 year olds, material hardship, poor health, abuse and neglect, isolation and loneliness.

The Government is addressing ageing issues and is committed to reaffirming the value of older people in society.  The Office for Senior Citizens is responsible for monitoring the implementation of the New Zealand Positive Ageing Strategy across Government.  New Zealand also maintains a comprehensive state-funded pension system.  New Zealand’s universal superannuation system is neither income nor asset tested.

Sexual Orientation

New Zealand decriminalised homosexuality in 1986.  The Human Rights Act 1993 includes sexual orientation as a prohibited ground of discrimination.  The Civil Union Act 2004 enables same-sex couples in a committed relationship to enter into a formal civil union.  Changes to various statures through the Relationship (Statutory References) Act 2005 mean that same-sex couples are treated in the same way as opposite-sex married or de facto couples when applying for social security benefits, and have many of the rights of married couples.  Adoption by same-sex couples is not permitted under New Zealand law.
In 2008 the NZHRC released the Report of the Inquiry into Discrimination Experienced by Transgender People called To be Who I am.  The Government is considering its response to the recommendations in the report.

3.2.2. Right to Life, Liberty and Security of the Person

Family Violence

Violence within families affects the lives of thousands people in New Zealand.  The research on the New Zealand experience of violence within families tells us that men are responsible for two-thirds of the deaths of children aged 14 or under.  Victims of the most severe and lethal cases of family violence are predominantly women and children.  Family violence is a problem that affects families from all cultures, classes, backgrounds and socio-economic circumstances.  However, Māori are significantly over-represented as both victims and perpetrators of violence in families. Violence experienced by gay, lesbian and transgender people in relationships with family and others also remains a problem.

The CEDAW Committee has previously recognised the difficulty of seeking protection under the Domestic Violence Act.  Under the Government funded legal aid scheme, which enables those who cannot afford legal representation to be represented by lawyers in both civil/family and criminal proceeding, applications for protection orders are ‘free’ (in the sense that no repayment is required other than in exceptional circumstances under Section 16(2) of the Legal Services Act 2000).  In November 2008, the eligibility for legal aid was adjusted to increase the number of people who can seek support from the legal aid scheme.

The Government recently introduced the Domestic Violence (Enhancing Safety) Bill.  The Bill is designed to give both Police and criminal courts enhanced tools to provide victims of domestic violence with immediate protection and to help keep victims safe from further violence.  The Bill will allow Police to issue on-the-spot protection orders to address the immediate safety of victims by removing the alleged violent person from the home for a period of up to five days.  Other provisions in the Bill will allow criminal courts to consider making a protection order on behalf of the victim when sentencing a person convicted of a “domestic violence offence”.top of page

The high incidence rate of family violence recorded in New Zealand is in part due to work undertaken to encourage reporting incidents and speaking out against the problem in order to eliminate it.  Awareness has been raised through the ‘It's not OK' media campaign.  The campaign promotes the message that family violence is not OK but it is OK to ask for help and it aims to change peoples’ attitude and behaviour towards family violence.

Five further Family Violence Courts have been established over recent years (bringing the total to seven), and funding for eight Victim Advocates will be introduced in Family Violence Courts by April 2009.
 
A Taskforce for Action on Sexual Violence comprising government and community agencies was established to lead and coordinate services to reduce the incidence and impact of sexual violence. The Taskforce will provide Government with a report in July 2009 including recommendations for future action to improve policy, procedure and service delivery.

Additionally, New Zealand has a Victims of Domestic Violence immigration policy.  This policy recognises the vulnerable circumstances faced by migrants who experience domestic violence from their New Zealand partners.  The purpose of this policy is to assist migrants who are in abusive circumstances and offers an avenue to permanent residence for those victims who would face undue discrimination or hardship if they returned to their home country due to the breakdown of their relationship.

While existing Government programmes have had some success in addressing family violence there is a need to refocus some of these efforts to better address the circumstances of particular groups, including Māori.  Māori voluntary and community groups also undertake important work to reduce family violence and its impact on the community. 

The CRC Committee has previously expressed concern that section 59 of the Crimes Act 1961 allowed physical force by a parent or caregiver as a means of correcting a child’s behaviour provided the force was reasonable in the circumstances.  In June 2007 section 59 of the Crimes Act 1961 was repealed and substituted with a new provision stating that there is no justification for the use of force for the purpose of correction.  With this measure, New Zealand became the 18th country in the world to ban the use of corrective force on children.  A referendum on the use of physical force for the purposes of correction will be held in 2009.

The Government has also taken steps to improve the performance of the government agency known as Child Youth and Family, which is responsible for providing care and protection and youth justice services to children and young people in New Zealand.

While Government programmes have targeted the problem, many children and parents remain concerned about bullying, both at school and in the wider community.  There is a concern that there is too much bullying and too little intervention.

Victims’ Rights

In December 2007, a Parliamentary Select Committee completed an inquiry into victims’ rights, which found that while much had been done to strengthen victims’ rights and provide support services, including for example through the Victims’ Rights Act 2002 and the establishment of Family Violence Courts, there were still a number of areas where further improvements could be made. Current priorities for the Government include establishing a Victims’ Compensation Scheme - the Sentencing (Offender Levy) Bill has been introduced as a first step.  In addition work is underway on a review of the Victims’ Rights Act 2002 to enhance victims’ rights and access to services, which will include reviewing the Victim Notification System to ensure improvements are made to the notification of victims for events concerning the offender (for example, if the offender escapes from prison or is eligible for parole).

3.2.3. Right to Freedom of Opinion and Expression

In New Zealand the right to freedom of opinion and expression is legally protected through the BORA and the Human Rights Act 1993.  While these Acts protect the right to freedom of opinion and expression they also set out responsibilities, making it unlawful  for example to use threatening, abusive or insulting words or other material to excite racial hostility against any group of people, by reason of their colour, race, or ethnic or national origin.  The Human Rights Act also creates the criminal offence of inciting racial disharmony.  While these Acts have positively influenced the legislature, the judiciary, policy-making and the public thinking, some tension remains in balancing the right with the responsibilities.  Ongoing education is needed, as well as greater awareness-raising of the various complaint mechanisms that exist.

3.2.4. Right to Freedom of Religion or Belief

In New Zealand the right to freedom of religion or belief is legally protected through the BORA and the Human Rights Act 1993.  As noted earlier, New Zealand is a secular State with no State religion, where religious and democratic structures are separated.  Matters of religion and belief are deemed to be a matter for the private, rather than public sphere. There are no legal restrictions specifically relating to religious groups, and while New Zealand is very tolerant of religious diversity, there are a number of incidents of religious intolerance, harassment and abuse that occur from time to time.  In the year to June 2008, 5% of the complaints received by the NZHRC on discrimination were on the basis of religious or ethical belief.

3.2.5. Administration of Justice and the Rule of Law

Access to Justice

Access to justice is enhanced in New Zealand through various measures to provide legal aid.  The Legal Services Agency administers legal aid and allocates funding to community law centres, which provide information about the law and have lawyers who give free legal advice.  The Government has just announced that it will review the legal aid system.  Citizens Advice Bureaux provide support and advocacy to those with legal issues.

In 2007, the Legal Services Amendment Act came into force and altered the financial eligibility criteria to increase the number of people eligible for legal aid from 765,000 to an estimated 1.2 million.  This will have particular benefits for women in the area of family law and will increase access to justice for Māori. 

Correctional Services

The conduct of officers and employees of correctional facilities in New Zealand, including any prison or jail, is subject to the Corrections Act 2004 and the Corrections Regulations 2005, which introduced a modern approach to prison management.  Prisoner entitlements as set out in the Act are consistent with the UN Standard Minimum Rules on the Treatment of Prisoners and there is an expanded complaints system. 

The age that young children of female prisoners can stay with their mothers in prison was raised from six months to two years under the Corrections (Mothers and Babies) Amendment Act 2008.  Placement must be in the best interests of the child and enables bonding, feeding, continuity of care and access to parenting education programmes.  The amendment will be implemented once appropriate facilities are available to accommodate the older children.

New Zealand is currently reviewing its practices relating to the separation of young people deprived of their liberty from adults, as part of an ongoing review of its reservation to Article 37(c) of CRC.  New Zealand is compliant with Article 37(c) regarding age-mixing in prisons.  In 2005, the Department of Corrections completed four specialist youth units in male prisons to ensure that there are sufficient beds to accommodate youth offenders separately from adults.  Females under the age of eighteen are also separated from those eighteen and over unless it is in their best interest to be mixed with older prisoners.  The low number of female prisoners under the age of eighteen (typically fewer than five at any time) makes a female youth unit facility unviable.  A ‘test of best interests’ has also been developed to facilitate age-mixing of vulnerable eighteen and nineteen year olds with under eighteen-year olds, where this is in the best interests of the under-eighteen year olds and the vulnerable eighteen and nineteen year olds.top of page

Further work is required regarding custody facilities, especially court cells and with Police transporting under-eighteen year olds to ensure full compliance with Article 37(c).  Prisoners aged seventeen or under are generally held separate from adults when being transported or held in court cells.  This is not always possible because of the limitations of existing facilities, particularly in small, remote courthouses.  A national interagency protocol has been developed to reduce instances of age mixing when transporting prisoners.

Despite Government initiatives over a number of years, Māori continue to be disproportionately represented in criminal justice statistics.  There is some evidence that any suspected or actual offending by Māori has harsher consequences for those Māori, resulting in an accumulation of individuals within the system; and that a range of adverse early-life social and environmental factors result in Māori being more likely to be involved in adult criminal conduct.  A summit co-hosted by the Ministers of Justice and Māori Affairs on drivers of crime will be held in April 2009 to discuss and propose a way forward to deal with these issues.

Youth Justice and Offending

New Zealand has a youth justice system that covers children aged ten to thirteen years old and young people aged fourteen to sixteen years old.  The system aims to resolve offending and hold the young offender to account while keeping them out of the formal justice system unless the public interest requires otherwise.

The Government is concerned about serious and persistent child and youth offenders.  In February 2009, the Government introduced the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill.  The Bill is intended to improve and extend the current range of options for responding to serious and persistent offending by children and young people.  The measures in the Bill aim to address the specific underlying causes of serious offending by twelve to sixteen year olds so that they do not reoffend and go on to lead socially responsible and beneficial lives.

3.2.6. Right to Participate in Public and Political Life

The Human Rights Act 1993 and the BORA specifically prohibits measures that discriminate against individuals or groups of individuals on the basis of sex, sexuality or race. Equally, both Acts allow such measures that are taken in good faith for the purpose of assisting or advancing persons or groups of persons who need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community. In the past, both Acts have been drawn on to justify increased Māori or gender-specific representation on various boards or committees. Despite the lack of legislative barriers to participation, the percentage of women and Māori in local Government and political decision making positions (district health boards, statutory boards and the judiciary) remains less than proportionate, as discussed in other sections of this report.

As noted in section 2, New Zealand has a Mixed Member Proportional (MMP) electoral system. MMP has resulted in more women MPs, minority groups and the presence of minority political parties in the parliamentary makeup.

In New Zealand there is high voter turnout in elections and easy access to elected representatives.  A key tool for participation is the use of consultation by Government (whether central or local). The Government, at both the central and local government levels, seeks the involvement of the public in the policy-making process.  In addition to the specific statutory requirements for consultation across a wide range of laws, the New Zealand courts have also established fundamental principles or elements of consultation. Community organisations are increasingly seeking collaboration with Government rather than a subsidiary role in participatory processes.

 

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