Consideration of the Third Periodic Report of the New Zealand Government
by the
United Nations Committee on Economic, Social and Cultural Rights
March 2012
Table of Contents
PageIntroduction / 3
Part A: Question 1
Incorporation of the ICESCR / 4
Part B: Question 2
Development assistance / 7
Part C: Question 4
Rights of refugees and asylum seekers / 9
Part D: Question 6
Equal rights of men and women / 14
Part E: Question 12
Right to social security / 20
Part F: Question 14
Child poverty / 26
Part G: Right to Water
Right to water / 27
Summary of Recommendations / 34
1.0 Introduction
1.1This submission is on behalf of the Human Rights Foundation of Aotearoa New Zealand. It is a shadow report to the New Zealand Government’s 3rdPeriodic Report to the United Nations Committee on Economic, Social and Cultural Rights.
1.2The Human Rights Foundation is a non-governmental organisation, established in December 2001, to promote and defend human rights through research-based education and advocacy. We have made submissions on new laws with human rights implications. We also monitor compliance and implementation of New Zealand’s international obligations in accordance with the requirements of the international conventions New Zealand has signed, and have prepared parallel reports for relevant United Nations treaty bodies to be considered alongside official reports. Though the primary focus of the Foundation is on human rights in New Zealand, we recognise the universality of human rights and have an interest in human rights in the Pacific and beyond.
1.3The Human Rights Foundation has been supported in this submission by the Equal Justice Project. This Project is a student run pro-bono legal services organisation operating out of the University of Auckland Law School since 2005. The Human Rights team within the Equal Justice Project is dedicated to developing human rights discourse by contributing to government and non-governmental initiatives. The team endeavours to promote awareness of issues affecting fundamental human rights and to encourage student participation in debates surrounding these issues.
1.4We appreciate this valuable opportunity to present our views to the Committee. Our submission is focussed on a few key issues linked to the Committee’s List of Issues.
Implementation of the International Covenant on Economic, Social and Cultural Rights
Part A
Question 1: Please provide information on the status of the constitutional reform undertaken by the State party and on the standing of the Bill of Rights Act in the State party’s legal order as proposed under the reform. Please also indicate whether measures are taken to make the Covenant rights justiciable in the State party’s legal order. Moreover, please inform the Committee as to how the State party guarantees the right to bring claims before domestic courts and request reparations for violations of the economic, social and cultural rights which are not explicitly provided for by the domestic legislation, such as the right to housing, and where the non-discrimination provisions of the Human Rights Act cannot be invoked. (HRI/CORE/NZL/2010, paras. 173 and 177; E/C.12/NZL/3, para. 23)
1.0Introduction
1.1The desirability of incorporating the Covenant into domestic law is stressed in the Committee’s General Comments nos. 3 and 9 and the Committee has emphasised this to the New Zealand Government in its two previous Concluding Recommendations.[1]
2.0Historical Analysis
2.1Although New Zealand has a historical commitment to ESC rights since its support for their inclusion in the UDHR, this commitment has not been reflected in domestic law. Prior to the enactment of the New Zealand Bill of Rights Act (NZBORA) in 1990, the Select Committee suggested in its Final Report that ESC rights should be included. Unfortunately, this suggestion was not taken up and the NZBORA was enacted with no reference to ESC rights.
2.2Although we still strongly recommend incorporation of ESC rights into the NZBORA, we draw the Committee’s attention to important limitations of theNZBORA itself. Since the NZBORA is subject to parliamentary override, via other legislation, in our view it does not provide sufficient protection for human rights.[2] Also the NZBORA does not contain a remedy section, although we note that despite thisthe Courts are increasingly willing to award damages for breach of these rights.[3] The remedy section should be included in the NZBORA itself.
3.0The Constitutional Review
3.1The New Zealand Government is currently undertaking a three-year constitutional review that was established as part of the confidence and supply agreement between the Māori Party and the National Party following the 2008 General Election.
3.2The terms of reference for the Constitutional Advisory Panel (CAP) include the size of parliament, Māori representation in Parliament, the current status of the Treaty of Waitangi and the NZBORA, as well as the prospect of adopting a written constitution.
3.3We strongly support the establishment of the constitutional review as it has the potential to raise awareness and spark public debate in relation to the fundamental design of the New Zealand constitution.
3.4We do, however, note and direct the Committee’s attention to the fact that there has been no mandate to investigate and re-evaluate New Zealand’s current standing on the recognition of ESC rights.
3.5We strongly recommend that the New Zealand Government incorporate ESC rights into the terms of reference. This would not only allow the Government to reconsider its commitment to promoting and protecting ESC rights, but also raise public awareness of the fundamental importance of ESC rights.
4.0Justiciability of Economic, Social and Cultural Rights
4.1Introduction
4.1.1We note the desirability of making ESC rights justiciable as is recommended in the Committee’s General Comment No. 9.
4.1.2Althoughhistorically ESC rights have not been considered to be justiciable in the waycivil and political rights have been, this perception has changed in many jurisdictions and the justiciability of aspects of many ESC rights is increasingly recognised, domestically, regionally and internationally.
4.2New Zealand Experience
4.2.1Historically, the Courts in New Zealand have been reluctant to treat ESC rights as directly enforceable.[4] This is partly due to the lack of direct incorporation into domestic law as noted in paragraph [1.1], and partly relying on the argument that the allocation of resources involved with ESC rights is of a political nature, and therefore a matter for Parliament rather than the judiciary.
4.2.2However, we note a trend in the judicial system where judges are increasingly inclined to take note of the State’s international obligations, including the ICESCR.[5]
4.2.3We acknowledge that some ESC rights are protected by specific legislation,[6] but consider direct incorporation to be also necessary. Direct incorporation and recognition of ESC rights promotes a clear human rights framework for interpretation and implementation of the statute.
5.0Optional Protocol to the ICESCR
5.1New Zealand has been a signatory to the First Optional Protocol to the International Covenant on Civil and Political Rights (OP-ICCPR) since 1989. However, its intentions with regard to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) remain unclear.
5.2We strongly recommend the New Zealand Government ratify the OP-ICESCR, as it would not only provide an avenue for individual complaints to be heard where there is a lack of recognition for these rights in New Zealand but also indicate a commitment to take ESC rights seriously.
6.0recommendations:
In light of the issues mentioned above, we recommend that:
6.1the Committee reiterate its recommendation to New Zealand to incorporate the ICESCR directly into domestic law;
6.2ESC rights be included in the NZBORA;
6.3the New Zealand Government include a review of ESC rights in the terms of reference of the current constitutional review; and
6.4the New Zealand Government ratify the OP-ICESCR.
Part B
Question 2: Please provide information on the efforts of the State party to reach a minimum net amount of 0.7 per cent of GNI as official development assistance. Please also provide information as to what extent the State party seeks to promote the realization of economic, social and cultural rights through its international development cooperation policy.
1.0 Introduction
1.1This submission presents findings relating to New Zealand’s compliance with its present obligations set by the UN Economic and Social Council (ECOSOC)relating to Official Development Assistance (ODA).
1.2ECOSOChas set all states, including New Zealand, the target of reaching a minimum 0.7% of GNI contribution to ODA per annum.
1.3New Zealand presently has a broad range of international ODA projects around the world and particularly within the Asia-Pacific region. The countries receiving the largest proportion of New Zealand ODA are the Solomon Islands, Papua New Guinea and Vanuatu.[7]Also, significant ODA funds are transferred by New Zealand to multilateral and Pacific regional aid agencies.
2.0 Statistical Findings
2.1According to available figures, New Zealand is falling far short of the minimum net ODA amount of 0.7% of GNI.
2.2There is little evidence of an intention on New Zealand’s part to reach this goal in the near future. Statistics revealed by the OECD Library indicate that between 2003 and 2010, the New Zealand contribution ranged between 0.23% and 0.30%. While there was a gradual increase from 2003 to 2008, the percentage has declined since then to below the 2005 level. The figures below indicate that New Zealand is well below the minimum target set by the ECOSOC.
Year / 2003 / 2004 / 2005 / 2006 / 2007 / 2008 / 2009 / 2010% of GNI to ODA / 0.23 / 0.23 / 0.27 / 0.27 / 0.27 / 0.30 / 0.28 / 0.26
Table 1: OECD Library Figures Comparing New Zealand’s ODA Contribution as a % of GNI.[8]
2.3New Zealand, through the New Zealand Aid Programme, has increased the net amount of ODA that it distributes per year to development related causes. For instance the amount of ODA paid by New Zealand is set to increase from approximately $535 million in 2011 to $620 million by 2014.[9] However the percentage contributions indicate that such increases do not account adequately for inevitable increases in GNI that occur per annum. As a result, while the quantity of ODA has increased every year for the last several years, New Zealand is no closer to realizing the UN target of a minimum 0.7% of GNI contribution to ODA.
3.0Economic, Social and Cultural Rights
3.1Introduction
3.1.1This submission relates to the extent to which New Zealand is utilizing its international development cooperation policy to help realize economic, social and cultural rights.
3.2Key Findings
3.2.1New Zealand is committed to sustainable development through its foreign aid policy.[10] The official policy document pledges that New Zealand will assist with foreign aid in a way that aims to reduce poverty in developing countries and promote the security of those countries’ developments. The “gender, environmental and human rights of what [New Zealand does]” ismentioned as a consideration for New Zealand’s international development aid programme.
3.2.2New Zealand supports development programmes overseas, many of which benefit social and economic development. For example New Zealand assists water sanitation and disaster relief in many developing countries particularly around the Pacific Rim with the intention of improving health and productivity in those countries. Similarly the New Zealand Government has partnerships with several NGOs such as ChildFund in order to help provide equitable social and economic development to partner nations.
3.2.3It does appear, however, that New Zealand’s underlying emphasis for development projects and aid has shifted from poverty eradication to economic development. This manifest focus on economic goals may neglect the government’s commitment to also achieving cultural and social goals, not to mention good governance which underpins all development.
4.0Recommendations
In light of the issues mentioned above, we recommend that the Committee:
4.1encourage New Zealand to meetECOSOC’s objective by pledging a credible commitment to reaching the 0.7% of GNI contribution to official development assistance;
4.2strongly encourage New Zealand to set a deadline to realization of this goal in the near future and to constantly match net contribution to any increases in GNI so as to maintain progress towards the 0.7% target; and
4.3encourage New Zealand to refocus its international development cooperation policy directly on poverty eradication.
Part C
article 2, paragraph 2: Non Discrimination
Question 4: Please inform the Committee to what extent refugees and asylum-seekers have equal enjoyment of economic, social and cultural rights as the rest of the population. Please inform the Committee as to whether the Immigration Act has been amended to revoke provisions prohibiting enrolling children without appropriate permits at schools
1.0Introduction
1.1New Zealand generally has a reputation for complying with international human rights standards in regard to treatment of refugees and asylum-seekers. Thus the new immigration legislation, the Immigration Act 2009, is intended to ensure compliance with New Zealand’s ‘immigration related’ obligations.[11] However non-citizens in many respects do not enjoy equal benefits of ESC rights with the rest of the population.
2.0Refugees
2.1Introduction
There are two types of non-citizens highlighted in this report: refugees and asylum-seekers. In New Zealand, the 1987 review of the refugee settlement policy established an annual quota of 750 places for refugees each year.[12] These ‘quota refugees’ are recognised as ‘refugees’ by the United Nations High Commissioner for Refugees (UNHCR).[13] Refugees accepted for resettlement by the New Zealand government under the refugee quota programme are granted a permanent residence visa on arrival.[14] Accordingly, quota refugees enjoy the same economic, social and cultural rights as other New Zealand citizens such as the rights to education, housing, work and physical and mental health.[15]
2.2Right to Education, ICESCR Article 13
Access to primary education is compulsory and free for all children of refugees.[16] Furthermore, access to tertiary education funding is also readily available to quota refugees. The government’s two-year stand-down period before new permanent residents can borrow from the government to fund tertiary studies does not apply to refugees and the families of refugees.[17] However some measures that previously assisted refugees are now being cut back. This includes the removal of the Refugee Study Grants, which provided a vital bridge into tertiary education. Adult education classes, also a building block into further education, have been severely reduced.[18] Currently, members of the ChangeMakers Refugee Forum have launched a campaign which aims to have refugee-background students recognised as an equity group in government policy and at universities and polytechnics.[19] This change would allow them access to benefits currently provided to Māori and Pacifica students in the tertiary sector. As yet there is no government response to this campaign.
2.3Right to Housing, ICESCR Article 11
The government, as part of the refugee settlement programme, makes provision for refugees’ access to Housing New Zealand houses. Quota refugees score very highly on a needs assessment and have priority in the waiting list for houses.[20] Refugee claimants must however show they have a right to remain in New Zealand in order to be eligible for the accommodation, meaning that they do not qualify for housing assistance. A recent survey of refugees who arrived in the country between 1993 and 1999 reveals that 47% continue to live in Housing New Zealand accommodation.[21] This highlights the ongoing support provided by the government more than 15 years on. However, there is a lack of adequate housing to accommodate larger refugee families who do not necessarily follow the nuclear-family model. In addition, it is becoming more evident that refugees are not receiving support to enable them to afford their own homes - only 16% of those surveyed own or partly own their own homes.[22]
2.4Right to Work, ICESCR Article 6
Quota refugees have the right to work in New Zealand. Eighty-seven % of the refugee participants of the Department of Labour’s survey had worked in some form of paid job since their arrival into the country.[23] However, when asked about their main source of income over the past 12 months, 51% of those participants identified “government benefits.[24]This highlights the issues raised in the Rights of Refugees report that refugees continue to face problems in regard to employment. Often their qualifications are not accepted, or they find difficulty adapting to the culture and language.[25] While legally there is a right to work, the system is unable adequately to provide work opportunities for these refugees.
3.0Asylum Seekers
3.1Introduction
3.1.1Asylum seekers, who claim refugee status on arriving at the border or after entry into New Zealand, are in another category of forced migration. They can be further divided into those who are awaiting a decision on their refugee status and those who have been granted that status.[26]In 2009/10, 335 (claims and subsequent claims) were decided, with only 91 of them approved.[27]Unlike the quota refugees, asylum seekers have not been formally recognised as refugees by UNHCR. Without refugee “status” they are not guaranteed ESC rights upon arrival into the country.
3.1.2As Manning and James argue, the granting of refugee status is declaratory not constitutive.[28]A ‘refugee’ is a refugee even before the government accepts their refugee status. Accordingly, asylum seekers too should have access to basic ESC rights. Despite this, asylum seekers in New Zealand receive only minimal support.
3.1.3Under the new Immigration Act 2009 which came into force in 2010, New Zealand now also recognises complementary protection under the ICCPR and the Convention Against Torture. This is a welcome development as it means that many who may not be granted refugee status for technical reasons under the Refugee Convention will still beprotected from refoulement.
3.2Right to Education, ICESCR Article 13
According to the Operational Manual issued by Immigration New Zealand, children of asylum seekers (and those seeking complementary protection) have access to free primary and secondary school education.[29] This ensures compliance with the ICESCR. However, unlike quota refugees, tertiary studentswho are asylum seekers (or protection applicants) do not have access to subsidised fees. As a result, these asylum seekers are disadvantaged in their efforts to receive a higher level education, owing to their high tuition fees, while their cases are being determined (which can be a lengthy process).
3.3Right to Housing, ICESCR Article 11
Given the distressing background of asylum seekers and refugees, adequate settlement support is vital. Housing New Zealand generally only provides housing to residents. Any refugee seeking housing assistance must have a right to remain in the country. This effectively rules out the possibility of asylum seekers receiving such assistance. Even after receiving refugee status, former asylum seekers must wait two years after gaining residence to be eligible for a Housing New Zealand house.[30] While asylum seekers are eligible for some government assistance, it is insufficient to cover the market rent of houses.