Ministry of Justice, New Zealand

This chapter assesses the relevance to Pacific Island communities in New Zealand of international and domestic New Zealand law relating to minorities.

5.1 International law - the ICCPR

As observed in the introductory chapter, Article 27 of the International Covenant on Civil and Political Rights (ICCPR) has a double significance for New Zealand. Firstly, because it embodies a binding norm of international law,[68] and secondly because it is essentially replicated in section 20 of the New Zealand Bill of Rights Act 1990 and thus forms part of New Zealand domestic law. The history, travaux preparatoires, and subsequent interpretation of Article 27 in the international context are likely to be important for understanding the content of the international norm, and for statutory interpretation of the domestic provision. Article 27 declares that:

'In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'.

Perhaps the leading work on the history and significance of the Article is Patrick Thornberry's International Law and the Rights of Minorities.[69] He notes the omission of a Minorities Article from the Universal Declaration of Human Rights in 1948 in accordance with the view of some states, led by Mrs Roosevelt for the United States, that 'the best solution of the problem of minorities was to encourage respect for human rights'.[70]

However, the persistent work of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities seems to have led to inclusion of Article 27 in the ICCPR. This was intended, in 1966, to translate the general principles of the Declaration into binding rules, notwithstanding some continuing misgivings on the part of some states that:

'it (Art. 27) should not become part of, as it were, a consciousness raising exercise and either create new minorities or awaken others, like Lazarus, from the dead'.[71]

5.2 Meaning of minority

Although the ICCPR offers no definition of minority, and the travaux preparatoires appear only to confirm that there is no generally agreed definition, the Special Rapporteur for the Sub-Commission, Professor Capotorti, has proposed this definition of minority for the purposes of Article 27:

'A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members - being nationals of the state - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language'.[72]

Thornberry notes some features of the Capotorti definition, which he describes as 'widely cited in the recent legal literature'. First, it excludes foreigners living in a state; secondly, it excludes dominant minorities (such as prevailed in South Africa under apartheid); thirdly, it is reliant on a collective choice (at least implicit).

Thornberry notes that a group of restrictionist states argued that minorities do not arise from immigration, but only from forcible transfers of population into minority status. The assimilationist fashion of the 1960s is evident in some approaches. The Australian position, for example, is reported as having been that it 'was doing its best to encourage new immigrants not to set up separatist minority groups, but to merge completely with the Australian community and enrich it'.[73] The opening phrase in Article 27 - 'In those states in which ...minorities exist' - was inserted at the request of Chile, and is intended to preserve the position of the restrictionist states who may wish to argue that they have no minorities. The boldest denial of the existence of minorities is perhaps contained in the explanation given by France of its reservation to Article 27:

'Article 2 (of the French Constitution) declares that France shall be a Republic, indivisible, secular, democratic and social. It shall ensure the equality of all citizens before the law, without distinction ...or origin, race, or religion. It shall respect all beliefs. Since the basic principles of public law prohibit distinction between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, Article 27 is not applicable so far as the Republic is concerned'.[74]

Thornberry disputes the adequacy of the French explanation. He usefully summarises the effect of Article 27 as follows:

'implicit recognition of a minority group through the formal attribution of rights to the members of that group; the right to maintain identity through the common activity of members of the group in the cultural, religious and linguistic spheres; and positive service on the part of the state in support of this identity'.[75]

The principle of non-discrimination is regarded by Thornberry as 'a necessary, though not sufficient protection for minorities' and, therefore, he does not view the French Constitution, by itself, as an adequate fulfilment of the requirements of Article 27.

The Human Rights Committee has supported this view in relation to the Third Periodic report of France under the ICCPR, stating that:

'the mere fact that equal rights are granted to all individuals and all individuals are equal before the law does not exclude the existence in fact of minorities in a country and their entitlement to the enjoyment of their culture, the practice of their religion or the use of their language in community with other members of their group'.[76]

The Human Rights Committee has also pronounced on the question whether immigrants may constitute a minority, stating:

'The Committee is of the view that article 27 applies to all persons belonging to minorities, whether linguistic, religious, ethnic or otherwise, including those who are not concentrated or settled in a particular area or region, those who are immigrants or those who have been given asylum in Germany'.[77]

There appears to be little doubt that Pacific people in New Zealand have the status of "minority" groups at international law, to whom rights flow under Article 27 of the ICCPR, as members of their national groups. In light of their sense of shared identity, it is also probable that Pacific people collectively constitute a minority group at international law.

5.3 Is Article 27 an individual or a collective right?

The travaux show that the expression 'persons belonging to minorities' appeared at the drafting stage of Article 27 and was intended to emphasise that:

'minorities as such were not subjects of the law, whereas persons belonging to minorities could be defined in legal terms'.[78] The right that the Article goes on to declare is of a collective nature: 'in community with other members of the group'.

Article 27 may be seen as a 'hybrid between individual and collective rights' but on the crucial point of standing, it appears to contemplate that only individuals may assert the right, and from the point of view of minorities this must be one of its most serious weaknesses.

The interpretation just noted is confirmed by the Human Rights Committee, which has stated that:

'The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples...Self-determination is not a right cognisable under the Optional Protocol. Article 27, on the other hand, related to rights conferred on individuals as such...and is...like the articles relating to other personal rights conferred on individuals...cognisable under the Optional Protocol'.[79]

5.4 Is the obligation of the state under Article 27 active or only passive?

Commentators have disagreed on this issue. Those who argue for the passive interpretation point to the unusually restrained form of Article 27 - 'shall not be denied the right'. Nowak, for example, considers that, while Article 27 provides minorities with more rights than the rest of the population,[80] a direct positive duty to guarantee rights 'cannot be found in the text, the context, the purpose or the historical background' to the ICCPR.[81] However he is of the view that States parties to the ICCPR are obliged to positively protect the rights of minorities against greater threats from other groups of the population.[82]

Thornberry, however, claiming the support of Special Rapporteur Capotorti, takes the more expansive view, urging that the Article be given both meanings:

'(1) the state should not interfere with whatever action a minority takes on its own initiative to preserve and strengthen its culture, religion, and language...and

(2) the state should, in the spirit of true equality between majority and minority, take such measures as are necessary in order to assist the minority to preserve its values'.[83]

The Human Rights Committee seems to prefer the Capotorti/Thornberry view, stating that:

'Although Article 27 is expressed in negative terms, that article does recognise the existence of a "right" and requires that it shall not be denied. Consequently, a state party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the state party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the state party'.[84]

5.5 The meaning of the Article 27 right

The Hon. Elizabeth Evatt, a distinguished Australian human rights lawyer, and a member of the Human Rights Committee has given this useful summary of the scope and content of Article 27 as interpreted by the Committee:

'The Committee has turned away from an integrationist or assimilationist approach to article 27, and has emphasised the obligation of states to take positive measures to protect the language, religious and cultural rights of members of minority groups. In the committee's view, the rights under article 27 are directed to ensure the survival and continued development of the cultural religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. A proviso is that the rights protected may not be used in a manner inconsistent with other provisions of the covenant, e.g. to undermine or violate the rights of others'.[85]

5.6 Specific international expressions of the rights of minorities

In 1992, the General Assembly adopted a "Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities."

This declaration elaborates and expands on the principles contained in Article 27 of the ICCPR. Its preamble states that it was '[i]nspired by the provisions of Article 27 of ICCPR'. The declaration supports the view that the obligations of Article 27 are active. Declarations of the General Assembly are not binding on States, but provide a basis for the progressive development of international law.[86]

Article 1 sets up the general obligations on States vis a vis their minorities. It says:

'States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.'

The Declaration also suggests that States have specific duties in respect of minorities. The most significant duties are contained in Article 4. Article 4(2) says that States:

'shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristcs and to develop their culture, language, religion, traditions and customs except where specific practices are in violation of national law and contrary to international standards.'

Article 4(3) says that States should take appropriate measures so that persons belonging to minorities have adequate opportunities to learn or have instruction in their mother tongue, and article 4(4) says that in the field of education, states should, where appropriate, encourage knowledge of the history, traditions, language and culture.

As well as setting out obligations of States, the Declaration also sets out various rights of minorities. Article 2(3) says that:

'persons belonging to minorities have the right to participate effectively in decisions on the national, and where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.'

In 1995 the Council of Europe adopted a Framework Convention for the Protection of National minorities, which as of October 1999 had been ratified by 28 member states. Similar themes to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, or Linguistic Minorities can be seen. This Convention is not directly applicable to New Zealand, as New Zealand is not a member state of the Council of Europe. However it has been ratified by 28 European States, so is indicative of international trends on minority rights.

Under Article 5 of the Convention, parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and culture heritage. This is similar to Article 1 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, i.e. a general obligation to create favourable conditions for preservation of minority cultures.

Under Article 14(1), parties undertake to recognise the right of persons belonging to national minorities to learn their minority language. Under Article 14(2), parties shall endeavour to allow adequate opportunities for being taught or receiving instruction in their language. However that clause is heavily caveated in that the persons have to be in 'areas inhabited by persons belonging to national minorities traditionally or in substantial numbers', there has to be 'sufficient demand', and the endeavours to ensure the opportunities for language education only have to be 'as far as possible and within the framework of [the State's] education system'.

Thus, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, and the Framework Convention for the Protection of National Minorities are indicative of evolving international norms in favour of an obligation on States to create a favourable environment for the preservation of minority cultures.

5.7 New Zealand reporting to the United Nations on discrimination and minority rights

As part of this project, the Ministry of Justice has commissioned a survey of New Zealand's reporting under the principal international instruments that concern Pacific Island communities in New Zealand. From the point of view of Pacific Island communities in New Zealand, the consultant's extensive survey would seem to support the following general conclusions:

1. That New Zealand's reporting often links the position of Pacific people with that of Maori in unequal enjoyment of social and economic benefits as compared with other New Zealanders.

2. The reporting acknowledges that special measures are in some cases needed to enable Pacific Island people to develop and deliver appropriate social services using traditional cultural approaches.

3. There is a danger that Pacific Island communities may fall into a no man's land where their situation is seen as comparable to Maori in social and economic disadvantage, but not amenable to the growing compensating power of the Treaty of Waitangi in respect of Maori.

4. The institutional structure for addressing the special needs of minorities is described in New Zealand's report for the 1998 Five-Year Implementation Review of the 1993 Vienna Declaration. After noting the establishment of the Ethnic Affairs Service within the Department of Internal Affairs in 1992, the report observes:

'The creation of this service was based on a recognition that while a number of Government agencies existed to represent the interests of New Zealand's important Maori, and Pacific Island communities, no specific point of contact existed for the more than 50 other ethnic groups represented in New Zealand society...The Service's goals have been ...to foster the acceptance and valuing of ethnic communities, encourage their equitable access to services, and to support communication within such communities, and with the government...' (page 16)

5.8 New Zealand domestic law

New Zealand has affirmed its commitment to the ICCPR through the New Zealand Bill of Rights Act 1990, which sets out parameters for government action. Sections 19 and 20 relate to non-discrimination and minority rights.

Section 19(1) provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Section 19(2) excludes positive discrimination from the definition of discrimination. Section 19(2) says:

'Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute discrimination'.

The cases of Lal v Residents Appeal Authority [1999] 5 HRNZ, 11 and Quilter v the Attorney General [1998] 1 NZLR 523 both contain extensive comment on the meaning of discrimination under section 19.

The directly prohibited grounds of discrimination under the Human Rights Act 1993 most likely to be relevant to New Zealand citizens of Pacific Island origins, or to Pacific people otherwise in New Zealand, are those of colour, race, and ethnic or national origins, including nationality or citizenship (section 21(1)(e), (f) and (g)). The Human Rights Act governs the actions of all citizens and the Government (although the Government is excluded from the ambit of the Act in respect of certain grounds of discrimination until 31 December 2001).

Section 20 of the New Zealand Bill of Rights Act 1990 gives legislative effect to Article 27 of the ICCPR. It states:

'A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.'

The Court of Appeal case of Mendelssohn v Attorney General briefly addressed the issue of the nature of the government's obligations under section 20 of the New Zealand Bill of Rights Act 1990, stating that the section does not impose positive obligations on the Government. The relationship between the section and Article 27 was not discussed. The extent to which the Courts would take into account the views of the Human Rights Committee that Article 27 imposes positive obligations on States Parties to the Convention, in any future cases where section 20 was a more central issue, remains to be seen.

Under the Human Rights Act 1993 it is unlawful to discriminate in matters of employment, education, access to public places, the provision of goods and services, and housing and accommodation. Similarly to s19(2) of the New Zealand Bill of Rights Act 1990, section 73 of the Human Rights Act excludes positive discrimination (affirmative action) from the ambit of discriminatory practices prohibited under the Act.

It is also unlawful under the Human Rights Act 1993 to 'excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons' (s.61), to racially harass a person (s.63), or to incite racial disharmony(s131).

Under s65 of the Human Rights Act 1993, indirect discrimination (i.e. discrimination that has the effect of treating a person differently on one of the protected grounds) is also unlawful unless the person undertaking the practice can establish good reason for it.

Two recent cases indicate the approach of the New Zealand Courts to the relationship between international and domestic law on human rights. The first is Wellington District Legal Services Committee v Tangiora [1998] 1NZLR129, which concerned a complaint by the respondent to the Human Rights Committee of the United Nations under the Optional Protocol. Although the case decided only the narrow point whether legal aid was available to pursue the complaint (the Court held, reversing the result at first instance, that it was not) the judgement of Justice Keith contains a broad discussion of the development of the international jurisprudence on human rights. Justice Keith underlined the huge significance of the recognition in the Universal Declaration that fundamental human rights were not just a matter within the concern of individual states, and provides a summary of the role of the Human Rights Committee:

'The Human Rights Committee which consists of 18 members elected to four-year terms under Part IV of the Covenant by the states parties to it has three functions. The first is to consider the reports submitted to it on a periodic basis by states parties to the covenant on the measures they have adopted to give effect to the rights recognised in the covenant and on the progress made in the enjoyment of those rights (art.40). Secondly, a procedure is available between states which accept it enabling one state to make a communication to the effect that another state is not fulfilling its obligations under the covenant (arts. 41-42). The third procedure, the one in issue in the present case, is also available only against states which have separately accepted it, by becoming party to the Optional Protocol. Under Article 1 of the Protocol the committee is competent to receive and consider communications from individuals who claim to be victims of a violation by such a state party of any of the rights set out in the covenant'.[87]

However, Justice Keith pointed out that:

'All (the Human Rights Committee) can do under the Optional Protocol is to forward its "views" to the state party in question and the individual concerned...(the language of the Protocol) is not the language of binding obligation, as the legislative history once again emphasises...'[88]

Justice Keith was careful to stress that the Court did not question in any way:

'the duty of the states parties to the covenant to consider in good faith what steps they must take to give effect to their obligations under the covenant....No doubt the views stated and the comments made by the committee should where appropriate have an important relevance to the states' parties assessment of those obligations...'

The second recent judicial pronouncement on the international jurisprudence is found in the judgement of Justice Cartwright in Northern Regional Health Authority v Human Rights Commissioner [1998] 2NZLR 218. With respect it is suggested that the Judge's discussion attracts an added force from her other role as an independent member of the UN Committee overseeing application of the CEDAW Convention. Justice Cartwright found that the Health Authority had acted improperly in seeking to differentiate between medical practitioners with overseas qualifications and those with New Zealand qualifications - to the disadvantage of the former. The policy was found to be in breach of s. 19 of the New Zealand Bill of Rights Act 1990, and also of ss. 22(1)(a) and (b) of the Human Rights Act 1993 by operation of s.65 of that Act dealing with indirect discrimination.

In the course of judgement, Justice Cartwright traced the connection between the International Bill of Human Rights (made up of the Universal Declaration of 1948, together with the two 1966 Covenants on Civil and Political Rights and Economic Social and Cultural Rights) and New Zealand law. She also made reference to a general comment of the United Nations Human Rights Committee to arrive at an expansive definition of discrimination, stating that:

'In interpreting human rights legislation the New Zealand Courts have resisted any attempt to limit their impact, noting that such legislation is to be "accorded a liberal and enabling interpretation"... New Zealand Courts have increasingly been prepared to look to international interpretations and authorities to gain a better understanding of our own rights-based legislation'.[89]

Justice Cartwright found that:

'Any analysis of policy which may directly or indirectly discriminate must be done in the light of the international principles and experience as stated in the relevant conventions and covenants ...Moreover, when the ancestry of the New Zealand legislation is understood it is inevitable that it must be read as broadly as is necessary to comply with the overarching themes promoting and protecting human rights'.

Applying that approach, Her Honour decided that section 19 of the New Zealand Bill of Rights Act 1990, which provided that:

'Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993'.

referred to discrimination in purpose or effect, in accordance with the Human Rights Committee's understanding. The plaintiff's contention that only direct discrimination could be covered by section 19, and not the indirect discrimination covered by section 65 of the Human Rights Act, was accordingly rejected. Justice Cartwright stated that:

'There is therefore a clear link in purpose between s21 and s65 of the Human Rights Act; one section is the obverse of the other and prohibited grounds of discrimination, whether applied directly or indirectly, are proscribed in that Act and under s19 of the New Zealand Bill of Rights Act'.[90]

5.9 Conclusions

I. Remedies will be available to individual persons (and to legal persons, such as incorporated societies, see section 29 NZBOR) from New Zealand Tribunals and Courts under the anti-discrimination provisions of the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990, remembering that these cover both direct and indirect discrimination.

II. The denial of the rights of minorities is contrary to section 20 of the New Zealand Bill of Rights Act 1990. The Court of Appeal has to date indicated support for the passive approach to the Government's obligations under section 20. The meaning given to that section may be influenced by the view taken by the Human Rights Committee as to the meaning of Article 27 of the ICCPR in future cases where section 20 is a more central issue. It is important to note that the Court will be bound to give effect to an Act of Parliament which is inconsistent with the 1990 Act in terms of section 4 of that Act, if there is no possible interpretation consistent with that obligation.

III. As a state party to the CERD, ICCPR and ICESR, New Zealand is obligated to ensure that remedies are provided such as to secure to New Zealand citizens and to others in New Zealand the rights set out in those instruments. New Zealand is obligated to report periodically on its performance in this regard, and to submit its record to international scrutiny.

IV. In the case of the ICCPR, individual persons in New Zealand may complain (by way of communication) under the Optional Protocol to the Human Rights Committee in regard to any alleged failure to meet the standards of that Covenant. A complainant must first exhaust domestic remedies. The Human Rights Committee is likely to take a flexible view of who may constitute a minority, and in particular not to regard immigrant groups as excluded for that reason. The state may justify any acts or omissions complained of by demonstrating that they are reasonably required by objective conditions.

Footnotes

68. The International Covenant on Civil and Political Rights (NZTS 1978, No.19) was ratified by New Zealand on 28 December 1978 and came into force for New Zealand on 28 March 1979. The Optional Protocol (NZTS 1989, No.12) was acceded to on 26 May 1989 and came into force for New Zealand on 26 August 1989.

69. Patrick Thornberry, International Law and the Rights of Minorities, Clarendon Press, Oxford, 1991. Referred to hereafter as 'Thornberry'.

70. Quoted in Thornberry, p.136.

71. Thornberry traverses the dynamics of this process in Part III of his work. The quotation is from Thornberry at p. 168. Warwick McKean had also noted this danger, and a preference for the view that 'although minorities should certainly be protected, it should not be as distinct groups, but as part of a general assurance of certain basic rights to all members of the population equally', see McKean, note 12 above, at page 36.

72. Special Rapporteur Capotorti, Monograph 23 towards his 'Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities ', UN Doc. E/CN.4/Sub.2/384/Add. 1-7). Quoted by Thornberry, p.6.

73. Thornberry, pp.154-156.

74. CCPR/C/22/Add.2., quoted in Thornberry at p. 245.

75. Thornberry, p.245.

76. Report of the Human Rights Committee, Vol.1, General Assembly Official Records, Fifty Second Session, Supplement No. (A/52/40) at page 65, para. 411.

77. Ibid. at page 33, para.183 emphasis added.

78. Thornberry, p.173.

79. United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.3, at para.3.1.

80. Manfred Nowak UN Covenant on Civil and Political Rights CCPR Commentary (1993) N P Engel, Strasbourg, p. 500.

81. Nowak, p. 504.

82. Nowak, p. 503.

83. Thornberry, p. 185-186.

84. United Nations, Compilation of General Comments....supra, at para.6.1, emphasis added. Even more explicit comments to the same effect by Members Higgins and Ndiaye are collected by Alexander B. Blades in his article 'Article 27 of the International Covenant on Civil and Political Rights: A case Study on Implementation in New Zealand ', [1994] 1 C.N.L.R.

85. The Hon. Elizabeth Evatt, 'The Role of the United Nations in the Protection of Civil and Political Rights: A Personal Perspective', speech at Global Diversity Conference 1995.

86. Ian Brownlie Principles of Public International Law, 5th ed. Oxford, New York, 1998, p. 14.

87. [1998] 1 NZLR 129 at p. 134.

88. Ibid, p.136.

89. [1998] 2 NZLR 218 at p.234. Reference was also made to observations of the Court of Appeal in Tavita v. Minister of Immigration [1994] 2 NZLR 257, particularly those of Cooke P. at p.266.

90. Ibid. p.236. The indirect discrimination aimed at by section 65 occurs where the effect of discrimination appears without any directly prohibited act.