Background

IMPORTANT NOTICE

These Guidelines have been replaced by:


THE NON-DISCRIMINATION STANDARDS FOR GOVERNMENT AND THE PUBLIC SECTOR Guidelines on how to apply the standards and who is covered
March 2002


This section is intended to provide the reader with:

  • An overview of the benefits of considering human rights principles in the formulation of government policies and practices;
  • An overview of the historical and international context of human rights protections in New Zealand; and
  • A brief explanation of the background to the Government's requirement that all policy proposals consider domestic human rights implications.

What are the benefits of considering all government policies and practices for
consistency with Part II of the Human Rights Act 1993?

  • Human rights principles are important - human rights principles, including the principle that everyone has the right to freedom from unjustified discrimination, are now recognised as fundamental considerations both within government and in wider society.
  • Leadership - visible government leadership engenders wider understanding and acceptance of human rights principles in the community.
  • Economic and social benefits - the consideration of human rights matters may have positive economic and social spin-offs, such as more equitable targeting of government services; better participation in society by individuals; increased acceptance of minority groups; and reduced risks for the Government of being found in breach of human rights legislation.
  • Quality of policy analysis and advice - the consideration of human rights matters may help to improve the quality of policy analysis and advice by assisting policy makers to predict outcomes, and consequently, to anticipate all of the direct and indirect implications of a policy.
  • International commitments - the consideration of human rights principles assists the Government to meet New Zealand's commitments under international human rights conventions (such as the International Covenant on Civil and Political Rights).
  • Domestic legal obligations - finally, consideration of human rights matters ensures that the Government complies with its own human rights legislation.

International context to human rights in New Zealand

In 1948 the United Nations proclaimed the Universal Declaration of Human Rights. Since then, the principles contained in that declaration have been included in other international instruments on human rights, which establish specific obligations on ratifying states as regards the treatment of their citizens. New Zealand has ratified many of these international instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the United Nations Convention on the Rights of the Child.

The Human Rights Act 1993 reflects New Zealand's commitment to these Conventions. In this regard, the Act's long title proclaims it to be:

An Act to ... provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights.

The Act gives practical effect to some of New Zealand's international commitments by providing a mechanism in New Zealand's domestic law for the protection of citizens' rights against unlawful discrimination.

Human rights statutes in New Zealand

There are many other pieces of domestic legislation which have "human rights" aspects. The following are a sample of Acts that reflect New Zealand's commitment to human rights and its international obligations:

  • Privacy Act 1993;
  • Health and Disability Services Act 1993 and Health and Disability Commissioner Act 1994;
  • Parts of the Employment Contracts Act 1991 and Residential Tenancies Act 1986; and
  • New Zealand Bill of Rights Act 1990 (" Bill of Rights Act").

Most of these Acts regulate behaviour between citizens, as well as between citizens and the state. For example, the Human Rights Commission and the Race Relations Conciliator (offices constituted under the Human Rights Act) deal with complaints from individuals who allege unfair treatment either by other private individuals (such as their employer), or by government agencies. [Footnote 2] The New Zealand Bill of Rights Act deals only with the relationship between the citizen and the state. These guidelines are primarily concerned with the Human Rights Act 1993.

Human Rights Commission and Race Relations Conciliator

The Human Rights Commission and the Office of the Race Relations Conciliator are independent crown entities funded through the Ministry of Justice. The Human Rights Commission was first established by the Human Rights Commission Act 1977. The Office of the Race Relations Conciliator was established by the Race Relations Act 1971.

The Human Rights Commission has a broad range of statutory functions, which include promoting respect for, and observance of, human rights in New Zealand, and investigating and conciliating complaints of discrimination from members of the public. The Commission is also responsible for educating and training members of the public (as well as members of the public service), publishing reports, guidelines, articles and speeches, and drafting legal submissions. The Office of the Race Relations Conciliator has responsibility for promoting positive race relations and addressing complaints of discrimination on grounds of race, colour, and ethnic or national origin.

Consistency 2000 project

In 1996, pursuant to sections 5(i) to (k) of the Human Rights Act, the Human Rights Commission and Race Relations Conciliator commenced a review of all Acts, regulations and government policies and practices for consistency with the Human Rights Act 1993. This project, known as Consistency 2000, involved many public sector staff who were first trained in human rights principles, and then directed to self-audit or examine their department's legislation, policies and administrative practices. Their 'batches' of self-audit information were then passed on to the Human Rights Commission. On 31 December 1998, the Commission published a non-comprehensive report, relating to some legislation, for the Minister of Justice. Copies of this report are available on the Ministry of Justice's website (www. justice. govt. nz) or on the Human Rights Commission's website (www. hrc. co. nz).

What are the other existing requirements for proposed government policies
and practices to be consistent with human rights principles?

All Cabinet policy proposals must now indicate whether they comply with the Human Rights Act 1993 and, if they don't, how that issue may be addressed [CAB (98) M 14/ 12 and Cabinet Office Circular CO (98) 19 refer]. This requirement is analogous to other items on the LEG checklist. For example:

  • New Zealand Bill of Rights Act 1990
    The Bill of Rights Act requires the Attorney-General to bring to the attention of the House of Representatives any provision of any Bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights. You may be familiar with processes associated with this:

(a) All Cabinet papers containing legislative or regulatory proposals are required to state whether or not there are Bill of Rights implications.

(b) All Bills must be referred to the Ministry of Justice for vetting for consistency with the Bill of Rights Act, before being referred to LEG for approval. [Footnote 3]

(c) The Attorney-General must report to Parliament where a Bill appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights Act (this is commonly referred to as a Section 7 report because of the section of the Bill of Rights which mandates the process).

  • Regulations Review Committee
    This Committee may draw regulations which "trespass unduly on personal rights and liberties" to the "special attention" of the House. [Footnote 4] The right to freedom from discrimination is likely to be considered a personal right or liberty in this context.

Government s expectations of departments

The Government has made the following commitments relating to human rights which directly affect Departments' development of legislation, policies and practices:

  • All regulations made after 1 January 2000 will comply with Part II of the Human Rights Act unless otherwise specifically authorised by an Act of
    Parliament.
  • From 1 January 2000, all policies and practices will comply with Part II of the Human Rights Act except in some of the areas where exemptions were
    sought in the Human Rights Amendment Bill (No. 1) (which was introduced
    in 1998, but did not progress). In Attachment 2 we summarise the relevant
    exemptions sought in the (No. 1) Bill.
  • As discussed above, all Cabinet policy proposals will indicate whether they comply with the Human Rights Act 1993 and, if not, how the issues may be addressed [CAB (98) M 14/ 12 and CO (98) 19 refer].
  • Under the Human Rights Amendment Act 1999, the Minister of Justice will report periodically to Parliament on "progress made by or on behalf of the Government ... in remedying significant inconsistencies between existing legislation and Part II of the Human Rights Act". The first of these reports is to be presented before 30 June 2000.

Footnotes

2. Note that, at present, the Commission and Conciliator cannot deal with complaints of discriminatory behaviour where that behaviour is mandated by statute or regulation.

3. Bills which are to be introduced by the Minister of Justice or Attorney-General are vetted by the Crown Law Office.

4.See Standing Order 382.