Universal Periodic Review of New Zealand

The Universal Periodic Review (UPR) is a state monitoring mechanism of the United Nations Human Rights Council (HRC). It was established by General Assembly resolution 60/251 in 2006 to periodically review the protection and promotion of human rights in each of the 193 United Nations (UN) Member States.^[1]

The UPR Process

The UPR process is detailed in the HRC Resolution 5/1. Each State is reviewed every four years. The review is based on the United Nations Charter, Universal Declaration of Human Rights, any other international human rights instruments the State is party to as well as any voluntary pledges or commitments it has made.^[2] The HRC appoints a ‘troika’ of three HRC Member States to review each State’s report. Three documents are provided for the troika to consider: The national State report, the Office of the High Commissioner for Human Rights (OHCHR) compilation of all UN information regarding that State and the OHCHR summary of stakeholder submissions. In addition, questions from other HRC Member States are given to the State party being reviewed to answer in its national report. The troika then present to the Working Group an outcome document, which summarises the review proceedings and includes recommendations. The Working Group comprises all 47^[3] of the HRC Member States & conducts the country reviews.^[4] New Zealand is given a period of time to review the recommendations and can choose to either accept and implement them accordingly or explain why it does not accept them.

The main goal of the UPR is to maintain and improve the domestic human rights situation in UN countries. The UPR process provides the opportunity for UN countries as well as NGO’s, other relevant UN bodies and individuals to raise concerns regarding the human rights situations in the country under review. The process allows the sharing of ideas and practices on how to best ensure that human rights obligations are complied with. It also allows governments to reflect on their own human rights situations and the public to offer their own views and feedback. Anyone who is interested in the UPR process can participate. This can include:

Iwi and other Maori groups.
NGO’s.
Human rights defenders.
Trade unions.
Community groups, churches and charities.
Local government.
Academic institutions.
National human rights institutions, such as the NZHRC.^[5]

New Zealand’s Review

In September 2008, the HRC selected Italy, Mauritius and the Philippines to form the troika.^[6] A list of questions was prepared by Argentina, Denmark, Hungary, Germany, the Netherlands, Sweden, the Czech Republic and the United Kingdom of Great Britain and Northern Ireland; and presented to NZ for consideration.^[7]^[8] The majority of questions focused on the social inequities (health, housing, employment, education, social services and criminal justice) faced by the indigenous people of New Zealand (NZ) (Māori); the high level of domestic violence against women and children; and why the Treaty of Waitangi is not given greater constitutional recognition and protection.

In January 2014, the HRC selected Cote d’Ivoire, Japan and the Russian Federation to form the troika.^[9] A list of questions was prepared by the Czech Republic, Germany, Liechtenstein, Mexico, the Netherlands, Slovenia, Spain and the United Kingdom of Great Britain and Northern Ireland.^[10] As in 2008, the focus of the questions remained on the reduction of the high level of domestic violence against women and children; the rights of the indigenous people and the social inequities faced by them as outlined above. In addition, the questions focused on the measures taken by the New Zealand Government to eliminate child poverty.

The three reports of the 1st and 2nd cycle of the UPR comment on the following areas: scope of international obligations, NZ’s constitutional and legislative framework, NZ’s institutional and human rights infrastructure, and the promotion and protection of human rights. This last category examines specifically:

Areas of equality and non-discrimination regarding Māori, women, persons with disabilities, senior citizens and sexual orientation;
Right to life, liberty and security of the person;
Right to freedom of expression;
Freedom of religion or belief;
Administration of justice and the rule of law;
Right to participate in political and public life;
Right to work and to just and favourable working conditions;
Right to social security & to an adequate standard of living;
Right to health;
Right to education and to participate in the cultural life of the community;
Rights of indigenous peoples;
Migrants, refugees and asylum seekers; and
Human Rights and counter-terrorism.^[11]^[12]^[13]

^[14]^[15]

National Report

In 2008 the NZ Ministry of Foreign Affairs and Trade (MFAT) engaged in a consultation process with relevant stakeholders. In August 2008, MFAT held meetings with over 70 civil society organisations and NGOs.^[16] Following ministerial and departmental consultation, a draft report was released to the public in February 2009 for comment, after which the report was finalised.^[17] The 20-page report noted that NZ is party to seven of the nine ‘core’ human right treaties.^[18] NZ has two primary human rights enactments: the New Zealand Bill of Rights Act 1990 (NZBORA) which affirms, protects and promotes fundamental rights and freedoms in NZ; and the New Zealand Human Rights Act 1993 which prohibits discrimination. NZ also has a varied human rights infrastructure; including the Office of the Ombudsman,^[19] the Health and Disability Commissioner^[20] and New Zealand Human Rights Commission (NZHRC);^[21] a National human rights institutions(sic) (NHRI) with an ‘A’ status accreditation.^[22] The report concluded with seven key priorities for future action of the NZ Government.

Improving the economic, social and cultural wellbeing of people in New Zealand;
Reducing violence within families and its impact on women and children;
Improving the opportunities and responsibilities of young people in New Zealand through the education and youth justice systems;
Strengthening the rights of victims of crime;
Improving the consultation process with civil society for future human rights reporting and follow-up recommendations;
Strengthening the partnership between the Government and Māori by continuing to support Māori to realise their potential and continuing the momentum on achieving fair, just and practical settlements of historical claims under the Treaty of Waitangi; and
The implementation of the Convention on the Rights of Persons with Disabilities (CRPD) and the New Zealand Disability Strategy.^[23]

The report also addressed the human rights situation of Tokelau. New Zealand is responsible for the fulfillment of obligations contained in treaties that are extended to Tokelau. Constitutional relationships are also maintained with the governments of the Cook Islands and Niue. The governments are consulted during the UPR process and are given the opportunity to comment on the draft report.^[24]

The consultation process for New Zealand’s 2nd national UPR report was managed by MFAT in collaboration with other government agencies including the Ministry of Justice, Te Puni Kokiri and the NZHRC.^[25] In April 2013, public consultation meetings were held in six centres across New Zealand.^[26] The meetings were attended by a broad range of civil society organisations and NGO’s, iwi (Maori tribe/s) and individuals who raised specific human rights issues. The draft report acknowledged the issues raised and was released for public comment in August 2013.^[27] Relevant stakeholders including the governments of the Cook Islands, Niue and Tokelau were invited to comment on the draft report.^[28] The 20-page report was finalized in October 2013 and submitted to the UN in November 2013.^[29] The report addressed the improvements made following the acceptance of the 56 recommendations in 2009 by way of sub-headings. Six key priorities for future action were listed.

Strengthening the partnership between Government and Maori by continuing to support Maori to realise their potential and continuing the momentum on achieving fair, just and durable settlements of historical claims under the Treaty of Waitangi;
Improving the protection of children against abuse and neglect;
Reducing violence within families and its impact on women and children;
The on-going implementation of CRPD (including accession to the Optional Protocol and the New Zealand Disability Strategy);
Advancing the Constitutional Review process; and
Ensuring any human rights impacts of the Canterbury Earthquakes are accounted for in the on-going decisions around the rebuild.^[30]

Stakeholder and Compilation Reports

In 2008, stakeholder submissions were made by the NZHRC, and the remaining 14 submissions were from NGOs and civil society organisations.^[31] The compilation report contains information gathered from the reports of other UN treaty bodies, special procedures,^[32] and any other relevant official UN documents.^[33] Both reports echoed the concerns found in the delegate questions to NZ and those acknowledged in the national report. In addition it was suggested that the Waitangi Tribunal recommendations should be made binding; concern was expressed at NZ’s vote against the Declaration on the Rights of Indigenous Peoples (DRIP); and repeal of the Foreshore and Seabed Act 2004, which extinguished any Māori customary territorial title to the foreshore or seabed in NZ, was urged. The repeal of section 59 of the Crimes Act 1961 (which had provided a defence of reasonable force for parents who physically discipline their children) was welcomed, but unease was expressed about plans for a referendum on the issue. There was concern regarding the systemic gender pay gap; the alarmingly high child poverty rates; and the proposed amendments to the Terrorism Suppression Act 2002, which may result in unwarranted intrusion into the rights to freedom of association and expression. Also the 2007 New Zealand anti-terror raids and the treatment Māori received during them.

In addition to making submissions, stakeholders may also participate in other ways, including:

Commenting on New Zealand’s draft report when it is released.
Lobbying the Working Group of countries reviewing New Zealand’s report.
Making presentations to the UNHRC when the report is being adopted.
Monitoring and participating in New Zealand’s implementation of UPR recommendations.^[34]

In 2013, 54 stakeholder submissions were made. These included a submission from the NZHRC, and the remaining 53 submissions were from NGO’s and civil society organisations.^[35] As in 2008, both reports addressed those issues referred to in the delegate questions to NZ and acknowledged in the national report. Concern was expressed regarding the rights of the indigenous people of NZ; it was suggested that NZ should adopt the Special Rapporteur’s recommendation of 2011 that the principles enshrined in the Treaty of Waitangi should be safeguarded within the domestic legal system; entrenchment of the Treaty as a constitutional norm was emphasised. As in 2008, concern was raised about Operation 8 (anti-terrorism raids carried out on 15 October 2007), which allegedly used excessive use of force against Maori Communities; it was recommended that NZ ensure that the Terrorism Suppression Amendment Act 2007 is not applied in a discriminatory manner. In addition, gender equality and domestic violence against women and children remained prominent issues. The impact of the Canterbury earthquakes was also addressed; regarding the political rights of the Christchurch community to engage in decision making; the right to an adequate standard of living; and the rights of the disabled to access buildings.^[36]^[37]

Working Group Review

The Working Group review of the 1st cycle of the UPR was held on the 7th of May 2009.^[38] The NZ delegation comprised 11 members and was led by Justice Minister Simon Powel. It included representatives of the Ministry of Justice, the Crown Law Office, the Department of Labour, the Department of Corrections, the Ministry of Foreign Affairs and Trade and the Permanent Mission of New Zealand to the United Nations Office at Geneva.^[39] Following the presentation by NZ of its report, the 36 delegates (from other State Members) entered into an interactive dialogue with NZ.^[40] Individual member states could ask questions and make recommendations, though NZ was under no obligation to accept any of the recommendations.^[41] Statements were made referring to positive achievements by NZ: accession to most international human rights instruments; efforts to protect and uphold the rights of the Māori population and economic and social improvements for Māori and Pacific peoples to combat discrimination, to enhance the rights of the child; advancements in the area of women’s rights and gender parity; the State’s Domestic Violence immigration policy, Taskforce for Action on Sexual Violence and the establishment of Family Courts; the active role of New Zealand in promoting the rights of persons with disabilities; the standing invitation extended to UN Special Procedures; the comprehensive scheme of social security and social safety nets; the New Zealand Bill of Rights Act and the Human Rights Act; policies to reduce poverty and to improve access to primary health; and the establishment of the NZHRC.^[42] Statements of concern were expressed relating to the issues identified in the reports mentioned above. NZ was given an opportunity to respond to these statements, and mention strategies being introduced to combat these issues.

The working Group Review of the 2nd UPR was held on the 27th of January 2014.^[43] The NZ delegation comprised 9 members and was led by Hon Judith Collins, Minister of Justice, Minister for Accident Compensation Corporation (ACC) and Minister for Ethnic Affairs.^[44] Following the presentation of the national report, the 76 delegates (from other State Members) entered into an interactive dialogue with NZ.^[45] Discussion referring to the improvements made by NZ following the 1st cycle of the UPR in 2009 was made; in 2010 NZ had moved to support the DRIP and in 2011 had ratified the Optional Protocol on the Rights of the Child on the sale of Children, Child Prostitution, and Child Pornography; the Ministry of Social Development launched a White Paper for Vulnerable Children and the Children’s Action Plan focusing on children who are at risk of being abused or neglected; in May 2013 the Parliament had eliminated an area of discrimination with the Marriage Amendment Act 2013, which allowed for marriage between any two people regardless of gender identity, sex, or sexual orientation.^[46] As in 2009, statements of concern were expressed relating to the issues identified in the three reports. NZ was given an opportunity to respond.

Recommendations to New Zealand

In 2009, delegates gave a list of 64 recommendations. 14 were directed at either the ratification of international instruments or the removal of existing reservations, including supporting the UNDRIP. 7 called for further incorporation of international human rights obligations into domestic law. 3 related to the implementation of treaty body recommendations for the protection of human rights and a further 2 urged cooperation with human rights mechanisms. The vast majority of recommendations related to the area of equality and non-discrimination – 22 in total. Among the suggestions were calls to continue to adopt policies to achieve full gender parity and to address the socio-economic inequalities affecting Māori and other minorities, as well as incorporating the fight against xenophobia and racism in the education curriculum. A further 11 were directed at the area of right to life, liberty and security of the person: in particular to increase efforts to combat domestic violence; greater attention to the monitoring of human trafficking; and separate juvenile detention facilities for juvenile offenders. Four were directed specifically at issues concerning Māori: generally to settle land claims comprehensively and provide adequate compensation; and to continue dialogue between the State and Māori regarding the Foreshore and Seabed Act 2004. Two addressed the proposed amendments to the Terrorism Suppression Act and recommended they be dropped. The final recommendation asked NZ to ensure that it consulted with civil society in the follow-up to the UPR recommendations.^[47]

In 2014, delegates gave a list of 155 recommendations. As in 2009, many recommendations were made regarding the ratification of international human rights instruments and the removal of reservations. 16 recommendations focused on constitutional amendment regarding indigenous rights. Among the suggestions were calls to incorporate the Treaty of Waitangi; take concrete measures to ensure the implementation and promotion of the UN DRIP; and to continue to address all forms of political, economic and social discrimination against the Maori and Pacific population by meeting their various demands for constitutional and legal reforms and recognition. A further 18 recommendations were directed at the socio-economic disparities and discrimination faced by Maori and Pacific peoples; one such recommendation suggested that NZ take further steps to understand the causes of inequality faced by indigenous people and to minimize their effects. 4 recommendations related to structural discrimination; 4 to the inclusion of economic and social rights into the New Zealand Bill of Rights 1990; 5 to the rights of migrants, refugees, asylum-seekers and their families; 1 to surveillance; 1 to counter-terrorism measures; and 7 to child poverty. 25 recommendations were directed at women’s rights; among these was the call for a national plan to address specific issues such as violence and pay inequality. A further 3 recommendations were made regarding the Canterbury earthquakes; including to consider policies in relation to gender mainstreaming, adequacy of housing and access to buildings for persons with disabilities; and to facilitate the realization of economic, social and cultural rights through the reconstruction of the areas affected.^[48]

NZ Response to Recommendations

In 2009, the Government accepted 33 of the 64 recommendations unreservedly, with an additional 12 agreed to after further discussion. A qualified response was given to 11: for example NZ agreed with the “underlying premise” of recommendation 21 “to continue the public discussion on the status of the Treaty of Waitangi”, though NZ did “not assume that the current mechanisms in place were inadequate or that entrenchment of the Treaty is the only possible outcome”.^[49] Eight were rejected. Three of these related to International Labour Organisation conventions, which NZ believes are inconsistent with NZ’s “unique legal, constitutional and Treaty of Waitangi arrangements.”^[50] The HRC formally adopted the outcomes of NZ’s UPR on 24 September 2009.^[51]

The recommendations arising out of the 2nd cycle of the UPR are currently under examination by New Zealand. A response will be issued by New Zealand no later than the 26th session of the HRC in June 2014.^[52]