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COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF NEW ZEALAND
02 August 2007
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Committee on elimination
of Racial Discrimination
2 August 2007
The Committee on the Elimination of Racial Discrimination has considered the fifteenth to seventeenth periodic reports of New Zealand on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Don MacKay, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that, throughout the period under review, the Government had continued to work to eliminate discrimination based on colour, religion, race, ethnic or national origin. Among positive developments was "Opportunity for All New Zealanders", a summary statement of the Government's vision for New Zealand and its people, and strategies to improve social outcomes, released in December 2004, as well as a number of new policies, programmes and services specifically designed to improve outcomes for Maori and Pacific peoples, who tended to be disproportionately represented on a range of health, education and well-being measures. Maori economic development during this period had been significant, with a larger share of the Maori workforce in highly skilled occupation. Other achievements in recent years included improved policies to address the disparities and improve outcomes for all women; a New Zealand Settlement Strategy to ensure that migrants and refugees successfully adapted to life in New Zealand; the reform of social assistance, including a working families package; and the establishment of a full-time independent Race Relations Commissioner within the national human rights institution.
Joris de Bres, the Race Relations Commissioner of New Zealand, said that in May the budget had provided an additional $ 7.5 million over the next four years to strengthen the Commission's capacity to deliver key programmes and services for the protection of human rights and the promotion of harmonious race relations – an increase of over 20 per cent per annum on an ongoing basis. This week, the Government had determined its response to the New Zealand Action Plan for Human Rights, and the Minister of Justice would now refer the Action Plan formally to chief executives of government departments directing them to consider the priorities for their annual plans. In coming months, new developments awaited included the completion of the review of the Police Act, the introduction of a new Immigration Act, and the launch of a new school curriculum.
In preliminary concluding observations, Linos-Alexander Sicilianos, the Committee Expert who served as country Rapporteur for the report of New Zealand, thanked the delegation for its very detailed and analytical replies on a broad range of questions. The Committee now had a clear picture as the basis upon which it would draw its concluding observations. With regard to the statement by the Race Relations Commissioner, particularly welcome had been the areas of focus outlined for the Human Rights Commission's future work.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the workings of the new Human Rights Commission and the Employment Relations Authority; why the gap in health and educational indicators continued to persist among certain minority groups, despite the many programmes to address that issue; double discrimination, in particular in reference to lower salaries and higher rates of violence Maori women were subject to; what was being done to address the disproportionately high rate of convictions and stiffer prison sentences for Maori; and concern over reports of racial profiling by police. Several questions were asked about the ongoing public debate concerning the status of the Waitangi Treaty, in particular, what status it currently had in domestic law. Was it a legally binding treaty? A conventional or customary norm? Several Experts were concerned about an apparent confusion between minority and indigenous rights and special measures that appeared in the report. The worry was that if those two categories were confused some minority and indigenous rights could be considered terminable, rather than inalienable.
The delegation of New Zealand also included representatives of the Te Puni Kokiri (the Ministry of Maori Development), the Office of Ethnic Affairs, the Ministry of Justice, the Crown Law Office, the Ministry of Pacific Island Affairs, and the Permanent Mission of New Zealand to the United Nations Office at Geneva.
The Committee will present its written observations and recommendations on the fifteenth to seventeenth periodic reports of New Zealand, which were presented in one document, at the end of its session, which concludes on 18 August.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the second to fourth periodic reports of Kyrgyzstan (CERD/C/KGZ/4).
Report of New Zealand
The Treaty of Waitangi and its meaning for the status of Maori in New Zealand was the subject of much public and political discussion in 2004 and 2005. According to the fifteenth to seventeenth periodic reports of New Zealand, submitted in one document (CERD/C/NZL/17), there continues to be a wide range of views among all political parties and the community generally on the place of the Treaty in New Zealand today and how it should be reflected in legislation and policy. The Government views this debate as important and has been supporting it through information programmes about the Treaty as well as the organization of community discussions and dialogues. The settlement of historical grievances by Maori is relatively widely accepted. The report describes the progress that has been made in this area.
In addition to providing information concerning the legislative, judicial, administrative or other measures adopted in the review period that give effect to the provisions of the Convention, the report covers action taken to address the Committee's recommendations to New Zealand's previous report. With regard to social and economic disparities between Maori and Pacific peoples and non-Maori, the report reflects the Government’s efforts to reduce these disparities in the areas of employment, health, education, housing, criminal justice and social services. Among those efforts are the People Power publication and web-based resource launched in mid-July 2004 by the Department of Labour to encourage employers to employ a more diverse workforce; the He Korowai Oranga (2002), a separate Maori health strategy, which develops further that special relationship between Maori and the Crown; and the Reducing Inequalities in Health (2002) initiative, which sets out a framework and principles that can be used at national, regional and local levels to reduce inequalities in health.
In terms of an observed low representation of Maori women in a number of key sectors and their particular vulnerability to domestic violence, the report notes that the employment and income status of Maori women has improved in the period under review. Maori women, however, continue to be more at risk of suffering domestic violence than New Zealand European or Pacific women. Interventions in this area include: project Mauriora – building the capability of Maori practitioners to provide culturally appropriate interventions; Family Violence Funding Circuit Breaker – a collaborative funding initiative to make things easier for community service providers; the Family Violence Intervention Programme – improving the Work and Income Service’s response to clients who experience family violence; and Family Safety Teams – providing formal systems and structures to support effective inter-agency cooperation, communication and collaboration in respect to family violence.
Presentation of Report
DON MACKAY, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that, throughout the period under review, the Government had continued to work to eliminate discrimination based on colour, religion, race, ethnic or national origin. New Zealand law specifically prohibited racial discrimination, and there continued to be a strong and active government commitment to the promotion of racial harmony. Successive Governments had held strongly that there must be equality of social and economic opportunity in New Zealand; only thus could a fair society be sustained, free of any form of racial discrimination, and acknowledging diversity as a strength. The government-wide policy of reducing inequalities had been a platform in the period under review for pursuing both social and economic initiatives in order to reduce disadvantage and promote equality of opportunity in New Zealand. While the task of reducing inequalities was by no means over, progress had been made and was detailed in the report.
New Zealand continued to monitor closely its performance in respect of key social indicators, Mr. MacKay added. Ethnic disparities in many areas were the subject of ongoing concern and action. Those included health, education and housing, as well as rates of offending and imprisonment. Information on such matters was readily accessible via government websites, and other publications, and openly debated in central and local government as well as in wider civil society.
Regarding developments since the presentation of New Zealand's last report, the 2006 census results showed that ethnic diversity in New Zealand was increasing, with 67.6 per cent of the population being European; 14 per cent Maori; 9.2 per cent Asian; and 6.6 per cent Pacific. A further 11.1 per cent described themselves simply as "New Zealander", the first time that that category had been recorded.
To briefly highlight positive developments, Mr. Mackay drew attention to "Opportunity for All New Zealanders", a summary statement of the Government's vision for New Zealand and its people, and strategies to improve social outcomes, released in December 2004. There were also a number of new policies, programmes and services specifically designed to improve outcomes for Maori and Pacific peoples, who tended to be disproportionately represented on a range of health, education and well-being measures. Maori economic development had also been significant, with a larger share of the Maori workforce in highly skilled occupation and an increase in specific interest in agribusiness, fisheries and forestry. The Pacific Prosperity Strategy, which focused on realizing the economic potential of Pacific peoples in New Zealand, had also resulted in the development of the Pacific Economic Action Plan and Pacific Women's Economic Development Plan as two key initiatives currently being implemented. There had also been many positive changes in Maori and Pacific employment and average earnings, and more women who identified themselves as of Maori or Pacific island groups were in paid employment. The Connecting Diverse Communities programmes coordinated new and existing initiatives aimed at strengthening intercultural relationships, addressing discrimination and promoting respect.
Mr. MacKay highlighted the increase in the number of Members of Parliament who identified themselves as being Maori, Pacific Island or Asian. Among the many other positive achievements of the Government in recent years were also the improved policies to address the disparities and improve outcomes for all women; a New Zealand Settlement Strategy to ensure that migrants and refugees successfully adapted to life in New Zealand; the reform of social assistance, including a working families package; and the establishment of a full-time independent Race Relations Commissioner within the national human rights institution.
Response by the Delegation to Written Questions Submitted in Advance
Responding to the list of issues submitted by the Committee in advance, the delegation said that the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 had provided the legal framework for the elimination of racial discrimination in New Zealand. A development in this period had been the passage of the Human Rights Amendment Act 2001, which altered the way individuals could bring claims against the Government for breaches of anti-discrimination laws by creating an accessible and publicly funded complaints process and providing effective remedies for persons who had been discriminated against. Under the legislation, the Human Rights Commission and the Office of the Race Relations Conciliator had been amalgamated into one organization – the new Human Rights Commission.
The delegation pointed out that the mandate of the Human Rights Commission had also been changed so that it now had the dual functions of promoting and protecting human rights and encouraging the maintenance and development of harmonious relations between individuals. In 2006, 24 per cent of the complaints received by the Commission had been about racial harassment. Those complaints had generally been resolved through mediation.
Inciting racial disharmony was prohibited under the Human Rights Act, but, as had been previously made clear, there was no specific speech offence in New Zealand domestic law. The present provision was considered to be an adequate and appropriate response to New Zealand's obligations under the Convention.
In terms of a decline in Maori language, the case had been brought before the courts on the basis of the Treaty of Waitangi, and had led to the ruling that required much greater resources to be allocated to preserving that language. A television channel in Maori had been instituted, and it was now possible to have a full education, from preschool to university, in Maori. As a result, the Maori language was no longer threatened, and it was reaching levels of sustainability. The most recent survey on the Maori Language Strategy had shown an increase in Maori speaking across all ages of Maori populations, as well as an increase in Maori language learning by non-Maori populations.
The situation of Maori land was somewhat similar. In the 12 years following the signing of the Treaty in Waitangi in 1840, over 50 cent of the land of the Maori had been lost. That loss had had major impacts on Maori identity and culture. However, over the past 10 years major gains had been made, and the Maori were now the primary contributors in terms of land and sea assets to the New Zealand economy. What had been learned in the past 160 years of relations between the Maori and the Crown was that those two had to listen to each other. The mistakes of the past would never be repeated.
Regarding measures related to the social development of Pacific peoples, numerous strategies, programmes and initiatives were now in place. Those were yielding positive results, the delegation said, as seen by increases in employment levels, increased participation in education, and social connectedness. However, challenges remained in health, criminal justice and housing. Those were also targets of Government initiatives, such as the Effective Intervention packages in the criminal justice area, which targeted offending Pacific peoples, especially youth. Initiatives included funding for Pacific wardens, increased police recruitment and a research proposal to assess the impact of bias on Pacific peoples. Moreover, realizing the economic potential of Pacific peoples was key to addressing the inequalities they faced and underpinned the initiatives set out in the Pacific Economic Action Plan and the Pacific Women's Economic Development Plan to be launched in August.
With regard to affirmation of Pacific identity, the delegation said that initiatives were under way around language maintenance for Niue, Cook Islands and Tokelau communities in New Zealand, which were being supported by an increased interest and participation in Pacific language classes, early childhood services, and Pacific language programmes on the Government-funded national radio network.
Faced with increasing ethnic diversity that began in the 1980's, the Office of Ethnic Affairs had been set up in 2001 to provide policy advice to Government and to support ethnic minority community development and participation. The Government recognized that increasing ethnic diversity posed both opportunities and challenges, and was therefore focused on promoting a policy of strength in diversity, through education and awareness-raising and by building stronger bonds of mutual respect and understanding between communities. That approach helped debunk myths and stereotypes and assisted ethnic minorities to develop a sense of belonging, the delegation noted. Those goals were reflected in two major Government strategies: the New Zealand Settlement Strategy and the Connecting Diverse Communities work programme.
Regarding the Government’s Foreshore and Seabed Act 2004, the delegation said that Act vested rights in New Zealand's Foreshore and Seabed with the Government, and allowed for a process to recognize other claims in those areas. There were two areas of activity in the legislation related to recognition of Maori rights. One was the granting of territorial customary rights based on exclusive use and occupation. With regard to those rights, there were three negotiations currently under way with major Maori groups (iwi). There were also eight groups, of varying sizes, that had applied to the Maori Land Court for Customary Rights Orders. Of those, four applications had been publicly notified; two were in the preliminary stages of public notification; and two applications had been dismissed. In essence, the monitoring of the implementation of the Foreshore and Seabed Act was being done in a very hands-on way, by negotiations and via the Maori Land Court.
Concerning the entrenchment of the Treaty of Waitangi in Constitutional Law as recommended by Rudolf Stavenhagen, UN Special Rapporteur on indigenous issues, the delegation observed that the Special Rapporteur, in the same report, had also stated that there was no commonly understood meaning of the treaty within New Zealand. The Constitutional Arrangements Committee had been tasked to study this issue amongst other issues related to constitutional reform, and it had concluded its work in 2005 and delivered its report to Parliament. To reach its conclusions it had undertaken widespread consultations, including with Maori groups. The thrust of the conclusions was that further debate was needed and a public education programme to inform the public about related issues. Entrenchment of the Treaty was a live issue in New Zealand, but it was clear that it was a reform that needed to take the New Zealand public with it. A pan-Maori organization had commented that the process of Constitutional reform had to be a democratic one, and there had to be time to debate.
Oral Questions Raised by the Rapporteur and Experts
LINOS-ALEXANDER SICILIANOS, the Committee Expert serving as country Rapporteur for the report of New Zealand, congratulated the delegation for its longstanding cooperation with the Committee, and its recently updated core document. In that context, he called attention to the recently issued new guidelines for a harmonized core document.
Generally speaking, New Zealand had a good record as far as the promotion and protection of human rights was concerned, Mr. Sicilianos said. It was a party to most of the international human rights treaties, and had recently signed the Convention Relating to the Status of Stateless Persons. New Zealand reported regularly to treaty bodies and cooperated with Special Rapporteurs. According to its report, New Zealand was also currently reviewing a declaration under article 14 of the Convention on the Elimination of all Forms of Racial Discrimination, and it would be of interest to hear an update on that situation.
Turning to the ethnic composition of the population, Mr. Sicilianos would like to hear more about the finding in the 2006 census that 11 per cent of the population had identified itself as simply "New Zealander".
Mr. Sicilianos said that there were many positive achievements to highlight, including the establishment of the Office of Ethnic Affairs; the adoption and implementation of the New Zealand Settlement Strategy, the Diversity Action Programme; the settlement of historical Maori claims, and the conclusion of a number of Crown-iwi negotiations; progress in reduction of economic and social disparities among various ethnic groups; and the merger of the Human Rights Commission and the Race Relations Commissioners.
New Zealand was one of the few Commonwealth countries that did not contain a supreme law governing human rights situations. The Human Rights Act 2001 empowered the New Zealand Human Rights Tribunal to declare legislation inconsistent with the Human Rights Act. However, as Mr. Sicilianos understood it, such a declaration did not have the effect of invalidating the offending legislation, and he would like to hear a comment on that.
Mr. Sicilianos requested further information as to why the Action Plan on Human Rights had not yet been implemented.
On the Treaty of Waitangi and Maori law, Mr. Sicilianos understood that there had been controversy over the legal status of that document in domestic law, rendering the rights of Maori peoples vulnerable. The Treaty of Waitangi Deletion Bill of 2006 appeared to call for the removal of any reference to the treaty in legislation, and there was also a move afoot to remove any reference to the Treaty in a draft educational curriculum. The Waitangi Tribunal apparently only had an advisory, non-binding power, and its recommendations were often ignored. It would seem beneficial if the Tribunal's judgements had a binding power, and if the Government were to provide additional resources for the Tribunal, and he wondered if the Government would consider that.
Mr. Sicilianos had heard that it was being recommended that the Te Puni Kokiri (Maori Ministry) be abolished, on the grounds that it singled out a single group unfairly, and he would appreciate more information on that issue.
Regarding special measures, Mr. Sicilianos noted that the report contained a number of special measures under the meaning of the Convention. However, a number of the measures labelled as special measures in the report did not fit the Convention's definition. The Maori Fisheries Settlement, in particular, did not appear to be an affirmative action under the Convention, but was rather the settlement of a historic claim.
On asylum-seekers and refugees, Mr. Sicilianos said that the Committee had received information that under a draft bill, the health status of the asylum-seeker could be considered grounds for denying an asylum application, and he would appreciate more information.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the workings of the new Human Rights Commission and the Employment Relations Authority, including how they were funded and how their members were selected; why the gap in health and educational indicators continued to persist among certain minority groups, despite the many programmes to address that issue; double discrimination, in particular in reference to lower salaries and higher rates of violence Maori women were subject to; what was being done to address the disproportionately high rate of convictions and stiffer prison sentences for Maori; and concern over reports of racial profiling by police. With regard to the Waitangi Treaty, an Expert was puzzled by the drawn out legal debate on the issue. Could the delegation clarify that Treaty's status – was it a legally binding treaty; a declaration; an international instrument; a conventional or customary norm?
An Expert made the case that special measures should not be regulated to a merely legal debate. Those were necessary measures to ensure that disadvantaged groups enjoyed the equal rights they were entitled to. While the Government was to be congratulated for the many programmes it had carried out, there was some concern that the Government was reviewing those programmes with a view to eliminating them. Another Expert agreed; he was concerned by the apparent confusion between minority and indigenous rights and special measures that appeared in the report. If those two categories were confused, that meant that minority and indigenous rights could be considered reviewable and terminable, rather than inalienable.
An Expert wondered what was meant by the "Crown", in particular with reference to the Maori.
Statement
JORIS DE BRES, the Race Relations Commissioner of the Human Rights Commission of New Zealand, recalled the challenges that had been mentioned by the Committee, including reducing ethnic disparities, especially in health and criminal justice; strengthening the Crown-Maori relationship; providing for migration and settlement; building connections between diverse communities; and determining a government response to the New Zealand Action Plan for Human Rights. The Government did accept the importance of those issues, but the Commission would welcome the Committee's reinforcement of them.
Turning to the work of the Commission, Mr. de Bres said that in May the budget had provided an additional $ 7.5 million over the next four years to strengthen the Commission's capacity to deliver key programmes and services for the protection of human rights and the promotion of harmonious race relations – an increase of over 20 per cent per annum on an ongoing basis. This week, the Government had determined its response to the New Zealand Action Plan for Human Rights, an issue of key importance for the Commission. The Minister of Justice would now refer the Action Plan formally to chief executives of government departments directing them to consider the priorities for their annual plans.
In terms of special measures, Mr. de Bres said that, throughout the extended public debate on special measures in 2004-2006, the Commission had referred the Government and the public to the provision for special measures in the Convention, the New Zealand Bill of Rights Act and the Human Rights Act. In the Action Plan, the Commission had identified public education about the nature of special measures as a priority. The Commission had made it clear that special measures should not be confused with the Government's treaty obligations, indigenous rights, or general social and economic measures tailored to particular ethnic groups.
Regarding the status of the Treaty of Waitangi in the law, in the Action Plan for Human Rights, the Commission had proposed a structured "constitutional conversation" as a means of developing public understanding of the issues, which were very complex and required public support to be effectively addressed. Here, Mr. de Bres pointed out that the Commission had just completed a three-year community dialogue project on human rights and the Treaty of Waitangi in which these issues were canvassed, and it considered that more time was needed.
With regard to the Foreshore and Seabed Act, the Commission believed that the essence of the Committee's previous recommendations remained appropriate – i.e., that there should be renewed dialogue between the Government and Maori on the issue, that the implementation of the Act should be closely monitored, and that negative effects of the Act should be minimized. Mr. de Bres said the legislation had produced deep divisions and resentment in their society, and the responsibility to heal those lay with all elected representatives, not solely the Government of the day. The Commission hoped that in due course means would be found to establish more common ground, given that both Maori and the Crown had expressed a desire to guarantee both public access and Maori customary rights. There was a need to strengthen Crown-Maori relationships at all levels.
Mr. de Bres then outlined the Commission's work programme for race relations in 2007-2008, including production of its fourth annual review of race relations; promotion of community action on race relations through the New Zealand Diversity Action Programme; ensuring that the Commission's disputes resolution service was known and readily accessible to all; reducing barriers to employment for refugee, migrant and minority ethnic groups; developing a network of organizations with the aim of strengthening the relationship between the Government and Maori at all levels; and encouraging New Zealand participation in the Second UN Decade on the Rights of Indigenous Peoples.
Finally, among developments in the area of legislation and policy that were awaited in coming months, Mr. de Bres highlighted the completion of the review of the Police Act, the introduction of a new Immigration Act, and the launch of a new school curriculum.
Response by Delegation to Oral Questions
Addressing concerns expressed by Experts, DON MACKAY, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that the "Crown" could basically be read as referring to the executive Government of New Zealand, including Members of Parliament that were Ministers of the Crown (collectively, the Executive Council), the public service and some statutory bodies.
Mr. MacKay felt there had been some confusion on the part of the Committee regarding the various ethnic groups in New Zealand. While Maori were certainly a Pacific people in the broader sense, they had not been included in the Pacific peoples grouping for statistical purposes, since Maori occupied a special status as the original inhabitants of New Zealand. There had also been a question about the category who had described themselves as simply "New Zealander" on the 2006 census. In that regard, it should be underscored that the census was based on self-identification, and that people might identify themselves as "New Zelander" instead of, or in addition to, the other ethnic options set out on the census form. As to the extent of intermarriage on various communities, precise statistics were not available. It was clear, however, that there was a high level of intermarriage. Approximately half of the Maori population identified with other groups, for example.
Regarding whether New Zealand would make a declaration under article 14 of the Convention, Mr. MacKay said that that was still under consideration by the New Zealand Government.
Another member of the delegation, addressing questions about the Maori, noted that Te Pune Kokiri (the Ministry of Maori Development) were public servants advising the Government on their relations with Maori. Fundamental to that relationship was that both parties talked to each other without the use of intermediaries, and that the Government obtained opinions or reactions from the Maori, where needed, directly. Te Puni Kokiri did not represent Maori, speak for them or define their choices.
The delegation noted that basic principles accepted by the Government and the courts were that Maori were, had been and always would be the indigenous people of Aotearoa/New Zealand; and that the Treaty of Waitangi was the founding document of New Zealand and defined the relationship between Maori and the Government. Maori thus had certain rights that later settlers did not have, and which gave them priority in certain areas. Those included pre-existing customary rights and property and other rights which derived from the Treaty and common law.
The varying effects of Maori history, including the circumstances surrounding the loss of the language, land, marine and other resources, had had long lasting consequences on Maori health, education, social cohesion, governance and tribal infrastructure that had confounded both Maori and the Government, the delegation said. In the last 20 years, and beginning with the recovery of Te Reo (the Maori language), there had been a discernable slowing in the downward spiral of social disparity. Maori and the Government had begun to listen to each other, and Maori were having much greater input and involvement in programmes and initiatives that affected their lives and well being. The Government was also increasingly delivering its support programmes through Maori providers, for example, in schools where it was now possible to be educated in Te Reo Maori from early childhood to the post-tertiary level in Maori-owned and managed institutions. Similar examples existed in health, family, support and rehabilitation, all funded by Government through outcome-driven commercial contracts.
The Maori economy, too, was now beginning to recover and build momentum, the delegation pointed out. In 2003, the value of Maori commercial entities had been estimated to have grown to $ 8 billion.
In terms of who was Maori, the delegation explained that they were people who identified themselves as such. The most common definition in New Zealand legislation was that a Maori was a member of the indigenous race of Aotearoa/New Zealand or any descendant of such a person. There was no reference to any percentage of Maori blood to be considered Maori; Maori identity was based on self-identification.
Addressing the issue of special measures, upon reflection, following the Committee's comments, it might be preferable to place consideration of historical Treaty settlements not under special measures, but under Article 6 issues. Those settlements were not seen as temporary measures by the Government, the delegation stressed.
On immigration matters, the Committee had asked why the publicly funded complaints procedure under the Human Rights Acts was not available under the Immigration Act. The delegation said that New Zealand continued to consider it preferable for the appeal and review procedures in the Immigration Act – which were "firm, fast and fair" – to be the primary means of resolving disputes about individual immigration decisions, rather than creating a parallel disputes resolution process.
Regarding detention of asylum-seekers, the delegation said that all people who applied for refugee status at the border were detained, mostly at the Mangere Accommodation Centre. They remained in that facility while their refugee status claims were processed and their identity satisfactorily established, unless released into the community on conditions. The Managere Centre was an "open centre" as that term was used by the United Nations High Commissioner for Refugees in its detention guidelines. Very few people who were detained were held securely on the basis that they represented a security risk or had been assessed as a high risk of absconding. For 2006-2007, out of 50 people who had claimed asylum at the border, 12 had identity documents and were granted permits; 34 were detained at the Accommodation Centre; and 4 were detained in a penal institution. As to personal security concerns for detainees in penal institutions, the Government had agreed, in the context of a review of the Immigration Act, to consider the establishment of a dedicated detention facility, and that was still under review.
With regard to the rights of undocumented minors, the Government had lifted its reservations to publicly funded education for children unlawfully in the country, the delegation said. Health care was generally available regardless of status, although in some cases charges might apply. For immigrants in the country for less than two years, the health service had a legal and professional obligation to provide services in acute cases, irrespective of immigration status or ability to pay.
Addressing questions about the Human Rights Commission and its functions, the delegation said that the Commission was classified as an Independent Crown Entity, and had a statutory duty to act independently in carrying out its functions. The Commission consisted of a full time Chief Commissioner, a Race Relations Commissioner, an Equal Employment Opportunities Commissioner, and two part-time Commissioners. The Commissioners were appointed on the recommendation of the Minister of Justice to the Governor-General, and were required to fulfil the criteria for appointment.
Concerning the status of the Human Rights Act, and the New Zealand Bill of Rights Act, while they did not have "supreme" status in the sense of the Courts being able to strike down legislation that was inconsistent with them, the delegation pointed out that the Courts had indicated on a number of occasions that those Acts were to be given special status.
Responding to queries on its functions and status, the delegation said that the Employment Relations Authority was an investigative body that had the role of resolving employment relationship problems by establishing the facts and making a determination according to the merit of the matter, without focusing on technicalities. A person could initiate proceedings for racial discrimination in the employment context under the Human Rights Act or the Employment Relations Act 2000, but not both. Statistics on cases involving racial discrimination and harassment which had been brought before the Authority were as follows: in 2000, 0; in 2001, 1; in 2002, 2; in 2003, 2; in 2004, 5; in 2005, 2; and in 2006, 4.
Turning to justice issues, in particular the issue of a disproportionate number of Maori in incarceration, the delegation said that a set of measures had been introduced in 2006 to reduce the rate of incarceration in New Zealand in the medium to long term called "Effective interventions". Several of those measures had been implemented through the Criminal Justice Reform Act, passed by Parliament a week ago. The Effective measures included a revamping of the sentencing system so that there was a more transparent, consistent, and standardized approach; the possibility of home detention for lower-risk offenders; the introduction of a new tier of community services, to increase sentencing options; the establishment of new drug and alcohol treatment units in prisons to provide intensive rehabilitative programmes; and a commitment to significantly increase the number of prisoners in employment training and education programmes (from 40 per cent currently to 60 per cent by 2009/10).
As to the question of the status of the Treaty of Waitangi in New Zealand law, the delegation said that the Treaty had three short articles: an acknowledgement of the Crown's role to govern; an acknowledgement of Maori Chiefly authority; and an acknowledgement that Maori had rights of New Zealand citizens. While regarded as a founding constitutional document in New Zealand, the Treaty was not directly enforceable in the Courts. When incorporated in statute, however, the Treaty had legal force, and a large number of statutes contained references to the principles of the Treaty, including the Conservation Act (1987), the Resource Management Act (1991), and the Public Health and Disability Act (2000).
The Waitangi Tribunal was a standing Commission of Inquiry established under the Treaty of Waitangi Act, 1975, the delegation continued. The Tribunal had a wide jurisdiction to investigate claims by Maori against the Crown that the Crown had acted in breach of Treaty principles, including by means of policies and legislation. The Tribunal operated with a quorum of three, one of whom had to be a lawyer, and one of whom had to be Maori. Generally, the Tribunal had recommendatory powers; however, in relation to some categories of land, it had binding powers. A large part of the work of the Tribunal was to investigate historical claims – largely claims of dispossession of land and resources dating from 1840 onwards.
As for extending binding powers to the Tribunal, the delegation noted that it did have some binding powers; that those powers had only been used once, and had led to a negotiated settlement; that to date, the Crown and Maori had chosen to negotiate the settlement of historical claims; and that features of the settlements suggested that negotiations rather than judicial settlements suited the process. Among those features were Crown apology; redress that involved amendment of existing statutory regimes; and the development of an ongoing Crown-Maori relationship.
Regarding the cut-off date of 1 September 2008, that had been established by the Government for filing historical claims under the Treaty occurring between 1840 and 1992, that deadline was linked to the Government's aim to settle all historical claims by 2020, the delegation said. It was not apparent that the cut-off date would prejudice Maori claimants; nor did it reflect a reduced commitment on the Crown's part to achieve settlements. It should be noted that contemporary claims (from 1992) were unaffected by the cut-off date.
In response to the Committee's recommendation that greater funding be provided for the Waitangi Tribunal, the delegation confirmed that funding for the Tribunal would increase by an additional $ 7.6 million over the next four years. Together with previous budget allocations, the funding would see a 62 per cent rise in the Tribunal's budget.
Further Questions by Experts
A Committee Expert said that as New Zealand was actually located in Asia, why had it chosen to be included in the Western European and other group, in terms of its geographic affiliation within the United Nations?
Responses by Delegation
Ambassador MacKay noted that it was an historical anomaly that New Zealand was included in the Western European and Other Group within the United Nations context. In the context of some other international organizations it was a member of the Asian group. Changing that status had been contemplated, but it appeared to be a complex issue, as it affected the balance of voting in a number of forums. Also, it should be borne in mind that New Zealand sought to define itself as a Pacific country, and Australia and New Zealand often operated as part of a Pacific group in the United Nations. Finally, the Western European and Other Group dealt only with procedural and administrative arrangements, generally for the election of candidatures, so that meant it was not so urgent to correct it.
Replying to the Committee’s questions in relation to the situation of Pacific peoples, the delegation outlined the Government’s focus in promoting Pacific prosperity as providing a platform to reducing the inequalities and improving outcomes for Pacific peoples, especially in the criminal justice and health areas. The delegation also noted that the focus on economic prosperity was being reinforced by the existence of numerous strategies and programmes directed at Pacific peoples in the social sector, which had resulted from the increased level of responsiveness to Pacific peoples issues by the Government. The delegation also noted the measures underway to revitalise Pacific languages as an integral part of affirming their identity and place in New Zealand.
In response to questions concerning the provision of special measures, the delegation advised that the Ministerial Review of targeted programmes in 2004 was conducted in order to confirm the need for these programmes and to ensure that they were being managed in a manner that best assisted the achievement of their respective objectives. The focus was therefore effectiveness rather than questioning the value of these programmes.
The delegation emphasised that supportive social networks between ethnic minority communities could help build a sense of solidarity and assist communities in developing a voice in civic affairs. These goals were reflected in two major Government Strategies; the New Zealand Settlement Strategy and Connecting Diverse Communities. Early indications of the outcomes of various initiatives within these strategies were positive and the Government would continue to evaluate these programmes.
Regarding the balance of use between English language and the preservation of the mother tongue for minority communities, the delegation emphasised this was still a live issue in New Zealand.
Preliminary Concluding Observations
In preliminary concluding observations, LINOS-ALEXANDER SICILIANOS, the Committee Expert who served as country Rapporteur for the report of New Zealand, thanked the delegation for its very detailed and analytical replies, covering all the points raised by Experts on a broad range of questions. The Committee now had a clear picture for the preparation of its concluding observations. With regard to the statement by the Racial Relations Commissioner, particularly welcome had been the areas of focus outlined for the Human Rights Commission's future work.
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For use of the information media; not an official record
of Racial Discrimination
2 August 2007
The Committee on the Elimination of Racial Discrimination has considered the fifteenth to seventeenth periodic reports of New Zealand on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Don MacKay, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that, throughout the period under review, the Government had continued to work to eliminate discrimination based on colour, religion, race, ethnic or national origin. Among positive developments was "Opportunity for All New Zealanders", a summary statement of the Government's vision for New Zealand and its people, and strategies to improve social outcomes, released in December 2004, as well as a number of new policies, programmes and services specifically designed to improve outcomes for Maori and Pacific peoples, who tended to be disproportionately represented on a range of health, education and well-being measures. Maori economic development during this period had been significant, with a larger share of the Maori workforce in highly skilled occupation. Other achievements in recent years included improved policies to address the disparities and improve outcomes for all women; a New Zealand Settlement Strategy to ensure that migrants and refugees successfully adapted to life in New Zealand; the reform of social assistance, including a working families package; and the establishment of a full-time independent Race Relations Commissioner within the national human rights institution.
Joris de Bres, the Race Relations Commissioner of New Zealand, said that in May the budget had provided an additional $ 7.5 million over the next four years to strengthen the Commission's capacity to deliver key programmes and services for the protection of human rights and the promotion of harmonious race relations – an increase of over 20 per cent per annum on an ongoing basis. This week, the Government had determined its response to the New Zealand Action Plan for Human Rights, and the Minister of Justice would now refer the Action Plan formally to chief executives of government departments directing them to consider the priorities for their annual plans. In coming months, new developments awaited included the completion of the review of the Police Act, the introduction of a new Immigration Act, and the launch of a new school curriculum.
In preliminary concluding observations, Linos-Alexander Sicilianos, the Committee Expert who served as country Rapporteur for the report of New Zealand, thanked the delegation for its very detailed and analytical replies on a broad range of questions. The Committee now had a clear picture as the basis upon which it would draw its concluding observations. With regard to the statement by the Race Relations Commissioner, particularly welcome had been the areas of focus outlined for the Human Rights Commission's future work.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the workings of the new Human Rights Commission and the Employment Relations Authority; why the gap in health and educational indicators continued to persist among certain minority groups, despite the many programmes to address that issue; double discrimination, in particular in reference to lower salaries and higher rates of violence Maori women were subject to; what was being done to address the disproportionately high rate of convictions and stiffer prison sentences for Maori; and concern over reports of racial profiling by police. Several questions were asked about the ongoing public debate concerning the status of the Waitangi Treaty, in particular, what status it currently had in domestic law. Was it a legally binding treaty? A conventional or customary norm? Several Experts were concerned about an apparent confusion between minority and indigenous rights and special measures that appeared in the report. The worry was that if those two categories were confused some minority and indigenous rights could be considered terminable, rather than inalienable.
The delegation of New Zealand also included representatives of the Te Puni Kokiri (the Ministry of Maori Development), the Office of Ethnic Affairs, the Ministry of Justice, the Crown Law Office, the Ministry of Pacific Island Affairs, and the Permanent Mission of New Zealand to the United Nations Office at Geneva.
The Committee will present its written observations and recommendations on the fifteenth to seventeenth periodic reports of New Zealand, which were presented in one document, at the end of its session, which concludes on 18 August.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the second to fourth periodic reports of Kyrgyzstan (CERD/C/KGZ/4).
Report of New Zealand
The Treaty of Waitangi and its meaning for the status of Maori in New Zealand was the subject of much public and political discussion in 2004 and 2005. According to the fifteenth to seventeenth periodic reports of New Zealand, submitted in one document (CERD/C/NZL/17), there continues to be a wide range of views among all political parties and the community generally on the place of the Treaty in New Zealand today and how it should be reflected in legislation and policy. The Government views this debate as important and has been supporting it through information programmes about the Treaty as well as the organization of community discussions and dialogues. The settlement of historical grievances by Maori is relatively widely accepted. The report describes the progress that has been made in this area.
In addition to providing information concerning the legislative, judicial, administrative or other measures adopted in the review period that give effect to the provisions of the Convention, the report covers action taken to address the Committee's recommendations to New Zealand's previous report. With regard to social and economic disparities between Maori and Pacific peoples and non-Maori, the report reflects the Government’s efforts to reduce these disparities in the areas of employment, health, education, housing, criminal justice and social services. Among those efforts are the People Power publication and web-based resource launched in mid-July 2004 by the Department of Labour to encourage employers to employ a more diverse workforce; the He Korowai Oranga (2002), a separate Maori health strategy, which develops further that special relationship between Maori and the Crown; and the Reducing Inequalities in Health (2002) initiative, which sets out a framework and principles that can be used at national, regional and local levels to reduce inequalities in health.
In terms of an observed low representation of Maori women in a number of key sectors and their particular vulnerability to domestic violence, the report notes that the employment and income status of Maori women has improved in the period under review. Maori women, however, continue to be more at risk of suffering domestic violence than New Zealand European or Pacific women. Interventions in this area include: project Mauriora – building the capability of Maori practitioners to provide culturally appropriate interventions; Family Violence Funding Circuit Breaker – a collaborative funding initiative to make things easier for community service providers; the Family Violence Intervention Programme – improving the Work and Income Service’s response to clients who experience family violence; and Family Safety Teams – providing formal systems and structures to support effective inter-agency cooperation, communication and collaboration in respect to family violence.
Presentation of Report
DON MACKAY, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that, throughout the period under review, the Government had continued to work to eliminate discrimination based on colour, religion, race, ethnic or national origin. New Zealand law specifically prohibited racial discrimination, and there continued to be a strong and active government commitment to the promotion of racial harmony. Successive Governments had held strongly that there must be equality of social and economic opportunity in New Zealand; only thus could a fair society be sustained, free of any form of racial discrimination, and acknowledging diversity as a strength. The government-wide policy of reducing inequalities had been a platform in the period under review for pursuing both social and economic initiatives in order to reduce disadvantage and promote equality of opportunity in New Zealand. While the task of reducing inequalities was by no means over, progress had been made and was detailed in the report.
New Zealand continued to monitor closely its performance in respect of key social indicators, Mr. MacKay added. Ethnic disparities in many areas were the subject of ongoing concern and action. Those included health, education and housing, as well as rates of offending and imprisonment. Information on such matters was readily accessible via government websites, and other publications, and openly debated in central and local government as well as in wider civil society.
Regarding developments since the presentation of New Zealand's last report, the 2006 census results showed that ethnic diversity in New Zealand was increasing, with 67.6 per cent of the population being European; 14 per cent Maori; 9.2 per cent Asian; and 6.6 per cent Pacific. A further 11.1 per cent described themselves simply as "New Zealander", the first time that that category had been recorded.
To briefly highlight positive developments, Mr. Mackay drew attention to "Opportunity for All New Zealanders", a summary statement of the Government's vision for New Zealand and its people, and strategies to improve social outcomes, released in December 2004. There were also a number of new policies, programmes and services specifically designed to improve outcomes for Maori and Pacific peoples, who tended to be disproportionately represented on a range of health, education and well-being measures. Maori economic development had also been significant, with a larger share of the Maori workforce in highly skilled occupation and an increase in specific interest in agribusiness, fisheries and forestry. The Pacific Prosperity Strategy, which focused on realizing the economic potential of Pacific peoples in New Zealand, had also resulted in the development of the Pacific Economic Action Plan and Pacific Women's Economic Development Plan as two key initiatives currently being implemented. There had also been many positive changes in Maori and Pacific employment and average earnings, and more women who identified themselves as of Maori or Pacific island groups were in paid employment. The Connecting Diverse Communities programmes coordinated new and existing initiatives aimed at strengthening intercultural relationships, addressing discrimination and promoting respect.
Mr. MacKay highlighted the increase in the number of Members of Parliament who identified themselves as being Maori, Pacific Island or Asian. Among the many other positive achievements of the Government in recent years were also the improved policies to address the disparities and improve outcomes for all women; a New Zealand Settlement Strategy to ensure that migrants and refugees successfully adapted to life in New Zealand; the reform of social assistance, including a working families package; and the establishment of a full-time independent Race Relations Commissioner within the national human rights institution.
Response by the Delegation to Written Questions Submitted in Advance
Responding to the list of issues submitted by the Committee in advance, the delegation said that the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 had provided the legal framework for the elimination of racial discrimination in New Zealand. A development in this period had been the passage of the Human Rights Amendment Act 2001, which altered the way individuals could bring claims against the Government for breaches of anti-discrimination laws by creating an accessible and publicly funded complaints process and providing effective remedies for persons who had been discriminated against. Under the legislation, the Human Rights Commission and the Office of the Race Relations Conciliator had been amalgamated into one organization – the new Human Rights Commission.
The delegation pointed out that the mandate of the Human Rights Commission had also been changed so that it now had the dual functions of promoting and protecting human rights and encouraging the maintenance and development of harmonious relations between individuals. In 2006, 24 per cent of the complaints received by the Commission had been about racial harassment. Those complaints had generally been resolved through mediation.
Inciting racial disharmony was prohibited under the Human Rights Act, but, as had been previously made clear, there was no specific speech offence in New Zealand domestic law. The present provision was considered to be an adequate and appropriate response to New Zealand's obligations under the Convention.
In terms of a decline in Maori language, the case had been brought before the courts on the basis of the Treaty of Waitangi, and had led to the ruling that required much greater resources to be allocated to preserving that language. A television channel in Maori had been instituted, and it was now possible to have a full education, from preschool to university, in Maori. As a result, the Maori language was no longer threatened, and it was reaching levels of sustainability. The most recent survey on the Maori Language Strategy had shown an increase in Maori speaking across all ages of Maori populations, as well as an increase in Maori language learning by non-Maori populations.
The situation of Maori land was somewhat similar. In the 12 years following the signing of the Treaty in Waitangi in 1840, over 50 cent of the land of the Maori had been lost. That loss had had major impacts on Maori identity and culture. However, over the past 10 years major gains had been made, and the Maori were now the primary contributors in terms of land and sea assets to the New Zealand economy. What had been learned in the past 160 years of relations between the Maori and the Crown was that those two had to listen to each other. The mistakes of the past would never be repeated.
Regarding measures related to the social development of Pacific peoples, numerous strategies, programmes and initiatives were now in place. Those were yielding positive results, the delegation said, as seen by increases in employment levels, increased participation in education, and social connectedness. However, challenges remained in health, criminal justice and housing. Those were also targets of Government initiatives, such as the Effective Intervention packages in the criminal justice area, which targeted offending Pacific peoples, especially youth. Initiatives included funding for Pacific wardens, increased police recruitment and a research proposal to assess the impact of bias on Pacific peoples. Moreover, realizing the economic potential of Pacific peoples was key to addressing the inequalities they faced and underpinned the initiatives set out in the Pacific Economic Action Plan and the Pacific Women's Economic Development Plan to be launched in August.
With regard to affirmation of Pacific identity, the delegation said that initiatives were under way around language maintenance for Niue, Cook Islands and Tokelau communities in New Zealand, which were being supported by an increased interest and participation in Pacific language classes, early childhood services, and Pacific language programmes on the Government-funded national radio network.
Faced with increasing ethnic diversity that began in the 1980's, the Office of Ethnic Affairs had been set up in 2001 to provide policy advice to Government and to support ethnic minority community development and participation. The Government recognized that increasing ethnic diversity posed both opportunities and challenges, and was therefore focused on promoting a policy of strength in diversity, through education and awareness-raising and by building stronger bonds of mutual respect and understanding between communities. That approach helped debunk myths and stereotypes and assisted ethnic minorities to develop a sense of belonging, the delegation noted. Those goals were reflected in two major Government strategies: the New Zealand Settlement Strategy and the Connecting Diverse Communities work programme.
Regarding the Government’s Foreshore and Seabed Act 2004, the delegation said that Act vested rights in New Zealand's Foreshore and Seabed with the Government, and allowed for a process to recognize other claims in those areas. There were two areas of activity in the legislation related to recognition of Maori rights. One was the granting of territorial customary rights based on exclusive use and occupation. With regard to those rights, there were three negotiations currently under way with major Maori groups (iwi). There were also eight groups, of varying sizes, that had applied to the Maori Land Court for Customary Rights Orders. Of those, four applications had been publicly notified; two were in the preliminary stages of public notification; and two applications had been dismissed. In essence, the monitoring of the implementation of the Foreshore and Seabed Act was being done in a very hands-on way, by negotiations and via the Maori Land Court.
Concerning the entrenchment of the Treaty of Waitangi in Constitutional Law as recommended by Rudolf Stavenhagen, UN Special Rapporteur on indigenous issues, the delegation observed that the Special Rapporteur, in the same report, had also stated that there was no commonly understood meaning of the treaty within New Zealand. The Constitutional Arrangements Committee had been tasked to study this issue amongst other issues related to constitutional reform, and it had concluded its work in 2005 and delivered its report to Parliament. To reach its conclusions it had undertaken widespread consultations, including with Maori groups. The thrust of the conclusions was that further debate was needed and a public education programme to inform the public about related issues. Entrenchment of the Treaty was a live issue in New Zealand, but it was clear that it was a reform that needed to take the New Zealand public with it. A pan-Maori organization had commented that the process of Constitutional reform had to be a democratic one, and there had to be time to debate.
Oral Questions Raised by the Rapporteur and Experts
LINOS-ALEXANDER SICILIANOS, the Committee Expert serving as country Rapporteur for the report of New Zealand, congratulated the delegation for its longstanding cooperation with the Committee, and its recently updated core document. In that context, he called attention to the recently issued new guidelines for a harmonized core document.
Generally speaking, New Zealand had a good record as far as the promotion and protection of human rights was concerned, Mr. Sicilianos said. It was a party to most of the international human rights treaties, and had recently signed the Convention Relating to the Status of Stateless Persons. New Zealand reported regularly to treaty bodies and cooperated with Special Rapporteurs. According to its report, New Zealand was also currently reviewing a declaration under article 14 of the Convention on the Elimination of all Forms of Racial Discrimination, and it would be of interest to hear an update on that situation.
Turning to the ethnic composition of the population, Mr. Sicilianos would like to hear more about the finding in the 2006 census that 11 per cent of the population had identified itself as simply "New Zealander".
Mr. Sicilianos said that there were many positive achievements to highlight, including the establishment of the Office of Ethnic Affairs; the adoption and implementation of the New Zealand Settlement Strategy, the Diversity Action Programme; the settlement of historical Maori claims, and the conclusion of a number of Crown-iwi negotiations; progress in reduction of economic and social disparities among various ethnic groups; and the merger of the Human Rights Commission and the Race Relations Commissioners.
New Zealand was one of the few Commonwealth countries that did not contain a supreme law governing human rights situations. The Human Rights Act 2001 empowered the New Zealand Human Rights Tribunal to declare legislation inconsistent with the Human Rights Act. However, as Mr. Sicilianos understood it, such a declaration did not have the effect of invalidating the offending legislation, and he would like to hear a comment on that.
Mr. Sicilianos requested further information as to why the Action Plan on Human Rights had not yet been implemented.
On the Treaty of Waitangi and Maori law, Mr. Sicilianos understood that there had been controversy over the legal status of that document in domestic law, rendering the rights of Maori peoples vulnerable. The Treaty of Waitangi Deletion Bill of 2006 appeared to call for the removal of any reference to the treaty in legislation, and there was also a move afoot to remove any reference to the Treaty in a draft educational curriculum. The Waitangi Tribunal apparently only had an advisory, non-binding power, and its recommendations were often ignored. It would seem beneficial if the Tribunal's judgements had a binding power, and if the Government were to provide additional resources for the Tribunal, and he wondered if the Government would consider that.
Mr. Sicilianos had heard that it was being recommended that the Te Puni Kokiri (Maori Ministry) be abolished, on the grounds that it singled out a single group unfairly, and he would appreciate more information on that issue.
Regarding special measures, Mr. Sicilianos noted that the report contained a number of special measures under the meaning of the Convention. However, a number of the measures labelled as special measures in the report did not fit the Convention's definition. The Maori Fisheries Settlement, in particular, did not appear to be an affirmative action under the Convention, but was rather the settlement of a historic claim.
On asylum-seekers and refugees, Mr. Sicilianos said that the Committee had received information that under a draft bill, the health status of the asylum-seeker could be considered grounds for denying an asylum application, and he would appreciate more information.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the workings of the new Human Rights Commission and the Employment Relations Authority, including how they were funded and how their members were selected; why the gap in health and educational indicators continued to persist among certain minority groups, despite the many programmes to address that issue; double discrimination, in particular in reference to lower salaries and higher rates of violence Maori women were subject to; what was being done to address the disproportionately high rate of convictions and stiffer prison sentences for Maori; and concern over reports of racial profiling by police. With regard to the Waitangi Treaty, an Expert was puzzled by the drawn out legal debate on the issue. Could the delegation clarify that Treaty's status – was it a legally binding treaty; a declaration; an international instrument; a conventional or customary norm?
An Expert made the case that special measures should not be regulated to a merely legal debate. Those were necessary measures to ensure that disadvantaged groups enjoyed the equal rights they were entitled to. While the Government was to be congratulated for the many programmes it had carried out, there was some concern that the Government was reviewing those programmes with a view to eliminating them. Another Expert agreed; he was concerned by the apparent confusion between minority and indigenous rights and special measures that appeared in the report. If those two categories were confused, that meant that minority and indigenous rights could be considered reviewable and terminable, rather than inalienable.
An Expert wondered what was meant by the "Crown", in particular with reference to the Maori.
Statement
JORIS DE BRES, the Race Relations Commissioner of the Human Rights Commission of New Zealand, recalled the challenges that had been mentioned by the Committee, including reducing ethnic disparities, especially in health and criminal justice; strengthening the Crown-Maori relationship; providing for migration and settlement; building connections between diverse communities; and determining a government response to the New Zealand Action Plan for Human Rights. The Government did accept the importance of those issues, but the Commission would welcome the Committee's reinforcement of them.
Turning to the work of the Commission, Mr. de Bres said that in May the budget had provided an additional $ 7.5 million over the next four years to strengthen the Commission's capacity to deliver key programmes and services for the protection of human rights and the promotion of harmonious race relations – an increase of over 20 per cent per annum on an ongoing basis. This week, the Government had determined its response to the New Zealand Action Plan for Human Rights, an issue of key importance for the Commission. The Minister of Justice would now refer the Action Plan formally to chief executives of government departments directing them to consider the priorities for their annual plans.
In terms of special measures, Mr. de Bres said that, throughout the extended public debate on special measures in 2004-2006, the Commission had referred the Government and the public to the provision for special measures in the Convention, the New Zealand Bill of Rights Act and the Human Rights Act. In the Action Plan, the Commission had identified public education about the nature of special measures as a priority. The Commission had made it clear that special measures should not be confused with the Government's treaty obligations, indigenous rights, or general social and economic measures tailored to particular ethnic groups.
Regarding the status of the Treaty of Waitangi in the law, in the Action Plan for Human Rights, the Commission had proposed a structured "constitutional conversation" as a means of developing public understanding of the issues, which were very complex and required public support to be effectively addressed. Here, Mr. de Bres pointed out that the Commission had just completed a three-year community dialogue project on human rights and the Treaty of Waitangi in which these issues were canvassed, and it considered that more time was needed.
With regard to the Foreshore and Seabed Act, the Commission believed that the essence of the Committee's previous recommendations remained appropriate – i.e., that there should be renewed dialogue between the Government and Maori on the issue, that the implementation of the Act should be closely monitored, and that negative effects of the Act should be minimized. Mr. de Bres said the legislation had produced deep divisions and resentment in their society, and the responsibility to heal those lay with all elected representatives, not solely the Government of the day. The Commission hoped that in due course means would be found to establish more common ground, given that both Maori and the Crown had expressed a desire to guarantee both public access and Maori customary rights. There was a need to strengthen Crown-Maori relationships at all levels.
Mr. de Bres then outlined the Commission's work programme for race relations in 2007-2008, including production of its fourth annual review of race relations; promotion of community action on race relations through the New Zealand Diversity Action Programme; ensuring that the Commission's disputes resolution service was known and readily accessible to all; reducing barriers to employment for refugee, migrant and minority ethnic groups; developing a network of organizations with the aim of strengthening the relationship between the Government and Maori at all levels; and encouraging New Zealand participation in the Second UN Decade on the Rights of Indigenous Peoples.
Finally, among developments in the area of legislation and policy that were awaited in coming months, Mr. de Bres highlighted the completion of the review of the Police Act, the introduction of a new Immigration Act, and the launch of a new school curriculum.
Response by Delegation to Oral Questions
Addressing concerns expressed by Experts, DON MACKAY, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that the "Crown" could basically be read as referring to the executive Government of New Zealand, including Members of Parliament that were Ministers of the Crown (collectively, the Executive Council), the public service and some statutory bodies.
Mr. MacKay felt there had been some confusion on the part of the Committee regarding the various ethnic groups in New Zealand. While Maori were certainly a Pacific people in the broader sense, they had not been included in the Pacific peoples grouping for statistical purposes, since Maori occupied a special status as the original inhabitants of New Zealand. There had also been a question about the category who had described themselves as simply "New Zealander" on the 2006 census. In that regard, it should be underscored that the census was based on self-identification, and that people might identify themselves as "New Zelander" instead of, or in addition to, the other ethnic options set out on the census form. As to the extent of intermarriage on various communities, precise statistics were not available. It was clear, however, that there was a high level of intermarriage. Approximately half of the Maori population identified with other groups, for example.
Regarding whether New Zealand would make a declaration under article 14 of the Convention, Mr. MacKay said that that was still under consideration by the New Zealand Government.
Another member of the delegation, addressing questions about the Maori, noted that Te Pune Kokiri (the Ministry of Maori Development) were public servants advising the Government on their relations with Maori. Fundamental to that relationship was that both parties talked to each other without the use of intermediaries, and that the Government obtained opinions or reactions from the Maori, where needed, directly. Te Puni Kokiri did not represent Maori, speak for them or define their choices.
The delegation noted that basic principles accepted by the Government and the courts were that Maori were, had been and always would be the indigenous people of Aotearoa/New Zealand; and that the Treaty of Waitangi was the founding document of New Zealand and defined the relationship between Maori and the Government. Maori thus had certain rights that later settlers did not have, and which gave them priority in certain areas. Those included pre-existing customary rights and property and other rights which derived from the Treaty and common law.
The varying effects of Maori history, including the circumstances surrounding the loss of the language, land, marine and other resources, had had long lasting consequences on Maori health, education, social cohesion, governance and tribal infrastructure that had confounded both Maori and the Government, the delegation said. In the last 20 years, and beginning with the recovery of Te Reo (the Maori language), there had been a discernable slowing in the downward spiral of social disparity. Maori and the Government had begun to listen to each other, and Maori were having much greater input and involvement in programmes and initiatives that affected their lives and well being. The Government was also increasingly delivering its support programmes through Maori providers, for example, in schools where it was now possible to be educated in Te Reo Maori from early childhood to the post-tertiary level in Maori-owned and managed institutions. Similar examples existed in health, family, support and rehabilitation, all funded by Government through outcome-driven commercial contracts.
The Maori economy, too, was now beginning to recover and build momentum, the delegation pointed out. In 2003, the value of Maori commercial entities had been estimated to have grown to $ 8 billion.
In terms of who was Maori, the delegation explained that they were people who identified themselves as such. The most common definition in New Zealand legislation was that a Maori was a member of the indigenous race of Aotearoa/New Zealand or any descendant of such a person. There was no reference to any percentage of Maori blood to be considered Maori; Maori identity was based on self-identification.
Addressing the issue of special measures, upon reflection, following the Committee's comments, it might be preferable to place consideration of historical Treaty settlements not under special measures, but under Article 6 issues. Those settlements were not seen as temporary measures by the Government, the delegation stressed.
On immigration matters, the Committee had asked why the publicly funded complaints procedure under the Human Rights Acts was not available under the Immigration Act. The delegation said that New Zealand continued to consider it preferable for the appeal and review procedures in the Immigration Act – which were "firm, fast and fair" – to be the primary means of resolving disputes about individual immigration decisions, rather than creating a parallel disputes resolution process.
Regarding detention of asylum-seekers, the delegation said that all people who applied for refugee status at the border were detained, mostly at the Mangere Accommodation Centre. They remained in that facility while their refugee status claims were processed and their identity satisfactorily established, unless released into the community on conditions. The Managere Centre was an "open centre" as that term was used by the United Nations High Commissioner for Refugees in its detention guidelines. Very few people who were detained were held securely on the basis that they represented a security risk or had been assessed as a high risk of absconding. For 2006-2007, out of 50 people who had claimed asylum at the border, 12 had identity documents and were granted permits; 34 were detained at the Accommodation Centre; and 4 were detained in a penal institution. As to personal security concerns for detainees in penal institutions, the Government had agreed, in the context of a review of the Immigration Act, to consider the establishment of a dedicated detention facility, and that was still under review.
With regard to the rights of undocumented minors, the Government had lifted its reservations to publicly funded education for children unlawfully in the country, the delegation said. Health care was generally available regardless of status, although in some cases charges might apply. For immigrants in the country for less than two years, the health service had a legal and professional obligation to provide services in acute cases, irrespective of immigration status or ability to pay.
Addressing questions about the Human Rights Commission and its functions, the delegation said that the Commission was classified as an Independent Crown Entity, and had a statutory duty to act independently in carrying out its functions. The Commission consisted of a full time Chief Commissioner, a Race Relations Commissioner, an Equal Employment Opportunities Commissioner, and two part-time Commissioners. The Commissioners were appointed on the recommendation of the Minister of Justice to the Governor-General, and were required to fulfil the criteria for appointment.
Concerning the status of the Human Rights Act, and the New Zealand Bill of Rights Act, while they did not have "supreme" status in the sense of the Courts being able to strike down legislation that was inconsistent with them, the delegation pointed out that the Courts had indicated on a number of occasions that those Acts were to be given special status.
Responding to queries on its functions and status, the delegation said that the Employment Relations Authority was an investigative body that had the role of resolving employment relationship problems by establishing the facts and making a determination according to the merit of the matter, without focusing on technicalities. A person could initiate proceedings for racial discrimination in the employment context under the Human Rights Act or the Employment Relations Act 2000, but not both. Statistics on cases involving racial discrimination and harassment which had been brought before the Authority were as follows: in 2000, 0; in 2001, 1; in 2002, 2; in 2003, 2; in 2004, 5; in 2005, 2; and in 2006, 4.
Turning to justice issues, in particular the issue of a disproportionate number of Maori in incarceration, the delegation said that a set of measures had been introduced in 2006 to reduce the rate of incarceration in New Zealand in the medium to long term called "Effective interventions". Several of those measures had been implemented through the Criminal Justice Reform Act, passed by Parliament a week ago. The Effective measures included a revamping of the sentencing system so that there was a more transparent, consistent, and standardized approach; the possibility of home detention for lower-risk offenders; the introduction of a new tier of community services, to increase sentencing options; the establishment of new drug and alcohol treatment units in prisons to provide intensive rehabilitative programmes; and a commitment to significantly increase the number of prisoners in employment training and education programmes (from 40 per cent currently to 60 per cent by 2009/10).
As to the question of the status of the Treaty of Waitangi in New Zealand law, the delegation said that the Treaty had three short articles: an acknowledgement of the Crown's role to govern; an acknowledgement of Maori Chiefly authority; and an acknowledgement that Maori had rights of New Zealand citizens. While regarded as a founding constitutional document in New Zealand, the Treaty was not directly enforceable in the Courts. When incorporated in statute, however, the Treaty had legal force, and a large number of statutes contained references to the principles of the Treaty, including the Conservation Act (1987), the Resource Management Act (1991), and the Public Health and Disability Act (2000).
The Waitangi Tribunal was a standing Commission of Inquiry established under the Treaty of Waitangi Act, 1975, the delegation continued. The Tribunal had a wide jurisdiction to investigate claims by Maori against the Crown that the Crown had acted in breach of Treaty principles, including by means of policies and legislation. The Tribunal operated with a quorum of three, one of whom had to be a lawyer, and one of whom had to be Maori. Generally, the Tribunal had recommendatory powers; however, in relation to some categories of land, it had binding powers. A large part of the work of the Tribunal was to investigate historical claims – largely claims of dispossession of land and resources dating from 1840 onwards.
As for extending binding powers to the Tribunal, the delegation noted that it did have some binding powers; that those powers had only been used once, and had led to a negotiated settlement; that to date, the Crown and Maori had chosen to negotiate the settlement of historical claims; and that features of the settlements suggested that negotiations rather than judicial settlements suited the process. Among those features were Crown apology; redress that involved amendment of existing statutory regimes; and the development of an ongoing Crown-Maori relationship.
Regarding the cut-off date of 1 September 2008, that had been established by the Government for filing historical claims under the Treaty occurring between 1840 and 1992, that deadline was linked to the Government's aim to settle all historical claims by 2020, the delegation said. It was not apparent that the cut-off date would prejudice Maori claimants; nor did it reflect a reduced commitment on the Crown's part to achieve settlements. It should be noted that contemporary claims (from 1992) were unaffected by the cut-off date.
In response to the Committee's recommendation that greater funding be provided for the Waitangi Tribunal, the delegation confirmed that funding for the Tribunal would increase by an additional $ 7.6 million over the next four years. Together with previous budget allocations, the funding would see a 62 per cent rise in the Tribunal's budget.
Further Questions by Experts
A Committee Expert said that as New Zealand was actually located in Asia, why had it chosen to be included in the Western European and other group, in terms of its geographic affiliation within the United Nations?
Responses by Delegation
Ambassador MacKay noted that it was an historical anomaly that New Zealand was included in the Western European and Other Group within the United Nations context. In the context of some other international organizations it was a member of the Asian group. Changing that status had been contemplated, but it appeared to be a complex issue, as it affected the balance of voting in a number of forums. Also, it should be borne in mind that New Zealand sought to define itself as a Pacific country, and Australia and New Zealand often operated as part of a Pacific group in the United Nations. Finally, the Western European and Other Group dealt only with procedural and administrative arrangements, generally for the election of candidatures, so that meant it was not so urgent to correct it.
Replying to the Committee’s questions in relation to the situation of Pacific peoples, the delegation outlined the Government’s focus in promoting Pacific prosperity as providing a platform to reducing the inequalities and improving outcomes for Pacific peoples, especially in the criminal justice and health areas. The delegation also noted that the focus on economic prosperity was being reinforced by the existence of numerous strategies and programmes directed at Pacific peoples in the social sector, which had resulted from the increased level of responsiveness to Pacific peoples issues by the Government. The delegation also noted the measures underway to revitalise Pacific languages as an integral part of affirming their identity and place in New Zealand.
In response to questions concerning the provision of special measures, the delegation advised that the Ministerial Review of targeted programmes in 2004 was conducted in order to confirm the need for these programmes and to ensure that they were being managed in a manner that best assisted the achievement of their respective objectives. The focus was therefore effectiveness rather than questioning the value of these programmes.
The delegation emphasised that supportive social networks between ethnic minority communities could help build a sense of solidarity and assist communities in developing a voice in civic affairs. These goals were reflected in two major Government Strategies; the New Zealand Settlement Strategy and Connecting Diverse Communities. Early indications of the outcomes of various initiatives within these strategies were positive and the Government would continue to evaluate these programmes.
Regarding the balance of use between English language and the preservation of the mother tongue for minority communities, the delegation emphasised this was still a live issue in New Zealand.
Preliminary Concluding Observations
In preliminary concluding observations, LINOS-ALEXANDER SICILIANOS, the Committee Expert who served as country Rapporteur for the report of New Zealand, thanked the delegation for its very detailed and analytical replies, covering all the points raised by Experts on a broad range of questions. The Committee now had a clear picture for the preparation of its concluding observations. With regard to the statement by the Racial Relations Commissioner, particularly welcome had been the areas of focus outlined for the Human Rights Commission's future work.
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