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Citizens' Advice Bureau

Who looks after your rights?
The rights of the child
The laws we live by

Who looks after your rights?

A new human rights institution
Race Relations Commissioner
Equal Employment Opportunities Commissioner
Office of Human Rights Proceedings
Treaty of Waitangi and human rights
Human Rights Review Tribunal
Protection from discrimination
Racial harassment
Sexual harassment
Human rights at the Cabinet table

Civil, political, economic, social and cultural rights are important in underpinning a free, democratic and cohesive society that respects and values diversity among the population.

The Human Rights Commission is a statutory body whose mission is to “champion fundamental human rights as a framework for a fair and just society for all the people of New Zealand.”
Its primary functions are:

• to advocate and promote respect, understanding and appreciation of human rights in New Zealand; and
• to encourage the maintenance and development of harmonious relations between individuals, and among the diverse groups in New Zealand society.

A new human rights institution

Amendments to the Human Rights Act (HRA) in 2001 introduced significant changes to New Zealand’s human rights law, and called for the establishment of a national human rights institution that provides a focal point for existing rights agencies, and leadership for constructive discussions within community institutions.

The over-arching objective was to create a national environment that makes it possible for people to reach their individual and collective potential regardless of their personal characteristics, and one in which human rights considerations are at the heart of public and international policy development.

Among other things, the Act:

(a) combined the Office of the Race Relations Conciliator with the Human Rights Commission

(b) established primary functions for the Commission

(c) added three new functions for the Commission:

• develop and implement a National Plan of Action on human rights
• promote better understanding of the human rights aspects of the Treaty of Waitangi
• appoint an Equal Employment Opportunities Commissioner

(d) incorporated the anti-discrimination standard of the New Zealand Bill of Rights Act 1990 (NZBORA) into the Human Rights Act 1993 (HRA) for all government activity (except employment and associated racial and sexual harassment where the activities of government remain accountable under the existing human rights standard)

(e) provided that all problems relating to both government and non-government human rights compliance be dealt with by the Commission through a publicly funded problem-solving/disputes resolutions process

(f) replaced the Commission's power to investigate complaints and form opinions about whether there had been a breach of the HRA with an disputes resolution process

(g) provided for the operational independence of the Office of Human Rights Proceedings.

Race Relations Commissioner

In January 2002, the Human Rights Commission and the Race Relations Office merged, creating a new organisation and replacing the role of Race Relations Conciliator with a Race Relations Commissioner who provides advice and leadership to the Race and Ethnic Relations Team (RERT). The RERT is divided into two main groups:

• education, communications and liaison
• policy, law reform and systemic issues.

The education, communication and liaison group establishes links between the HRC and the major ethnic communities in New Zealand. The team provides educational material on human rights, the Treaty of Waitangi and other relevant issues.
In the areas of policy, law reform, and systemic issues, the team’s work includes ensuring race and human rights perspectives are reflected in new laws and policies. The team also conducts proactive work on legislation with implications in the area of race and affirmative action projects.
A separate disputes resolution team processes all complaints received by the Commission irrespective of the grounds of complaint.

National Plan of Action on Human Rights

The Commission’s National Plan of Action is a concrete reflection of a deliberate policy to promote and protect human rights and coordinate activities between government departments and authorities in this area.

The National Plan of Action will take place over two years and involve wide public participation.

Equal Employment Opportunities Commissioner

The Equal Employment Opportunities (EEO) Commissioner role was established to provide advice and leadership on matters relating to EEO, to evaluate EEO measures and promote their best practice, and to monitor progress in improving EEO in New Zealand. The first EEO Commissioner, Dr Judy McGregor, was appointed in February, 2003.

Office of Human Rights Proceedings

The Office of Human Rights Proceedings (OHRP) was established by the 2001 amendments to the Human Rights Act as an independent component of the Human Rights Commission, and is headed by the Director of Human Rights Proceedings.
The OHRP is a specialised, publicly funded organisation which may provide free legal representation for people who have complained of breaches to the HRA and wish to take their case to the Human Rights Review Tribunal. The Director must assess applications for free legal representation against the criteria specified in the HRA. Each application for legal representation is assessed on its own merit.
Complainants are encouraged to try to resolve their disputes through the mediation service provided by the HRC before applying to OHRP.

Treaty of Waitangi and human rights

The 2001 amendments to the HRA provided the Commission with the function of promoting a better understanding of the human rights dimensions of the Treaty of Waitangi through research, education and discussion. A specific project to facilitate public dialogue around human rights and the Treaty of Waitangi is currently under way.
The goals of the Treaty of Waitangi and Human Rights Project are to: improve the knowledge and understanding of human rights issues and laws in the country; fostering appreciation of the Treaty of Waitangi as a document for all New Zealanders to be proud of; and building awareness of universal human rights amongst the general public.

Human Rights Review Tribunal

The Human Rights Review Tribunal is independent of the Commission and is administered by the Department for Courts. It has the power of a court to hear disputes and make decisions. If the decision is in the complainant’s favour, the Tribunal can award damages and order other remedies.
It is notable that, while the Commission’s dispute resolution services are private and confidential, Tribunal and court hearings are not. Name suppression can be applied for, but proceedings are generally open to the public.

Protection from discrimination

The HRA may be seen as an important part of the fulfilment of the government’s obligations to protect citizens from discrimination. whether perpetrated by the government, bodies performing public functions, the private sector or fellow citizens.

The HRA makes it unlawful to publish, distribute or broadcast material that is threatening, abusive or insulting, or likely to excite hostility against, or bring into contempt any group of persons in (or who may be coming to) New Zealand on the grounds of colour, race, ethnic or national origins.
The HRA exempts newspapers, magazines, periodicals, radio and television when they are accurately reporting this type of behaviour.
Discrimination under the HRA may be unlawful if it is based on one or more of the following:

• sex, including pregnancy
• marital status
• religious belief
• ethical belief
• colour
• race
• ethnic or national origins
• disability
• age
• political opinion
• employment status
• family status
• sexual orientation.

Additional material on discrimination is available from the Commission, rights organisations, the Internet, and New Zealand legal sources.

Racial harassment

Racial harassment does not need to be intentional - the most important aspect is how the person at whom the behaviour is directed is affected.

The HRA stipulates that racial harassment can occur in any of the areas of life to which the Act applies including employment, education, access to public places, access to goods and services, access to land, accommodation or housing.
Racial harassment can involve:

• mimicking the way a person speaks
• making jokes about their race
• calling them racist names.

Racial harassment can also be addressed under the Employment Relations Act 2000. Cases can be taken as a personal grievance against an employer within 90 days of the incident.
Cases can also be taken under the HRA as a complaint, whether against an employer or some other person if the complaint is lodged no later than 12 months after the incident.
A variety of remedies are available under the HRA for racial harassment including a declaration that the Act has been breached, restraining orders, an apology, reimbursement of lost wages, and compensation including damages for humiliation and pecuniary loss.

Sexual harassment

The Human Rights Commission defines sexual harassment as:

• requests for sexual contact or activity with an implied or overt promise of preferential treatment or threat of detrimental treatment if the request is refused; or
• use of language, visual material or behaviour of a sexual nature that is unwelcome or offensive, and is either repeated or of such a significant nature that it has a detrimental effect on the individual.

In both cases, the harassment must take place in one of the areas to which the HRA applies (employment, education, access to public places, access to goods and services, access to land, accommodation or housing).
Sexual harassment can involve:

• sexually offensive comments
• jokes
• repeated comments about a person’s alleged sexual activities or private life
• offensive hand or body gestures
• physical contact such as patting, pinching, or touching
• following someone home from work
• posters or other visual material with a sexual connotation
• sexual assault and rape.

Sexual harassment can be dealt with under the Employment Relations Act 2000 as a personal grievance against an employer within 90 days of the incident, or under the HRA as a complaint against an employer or another individual. In some cases the matter may be referred to the Police.
A variety of remedies are available under the HRA for sexual harassment, including a declaration that the Act has been breached, restraining orders, an apology, reimbursement of lost wages and compensation, including damages for humiliation and pecuniary loss.

Human rights at the Cabinet table

The Cabinet Office requires all policy submissions to include a statement about whether there are any inconsistencies between the proposal and the HRA.

If there are inconsistencies, submissions must provide a summary of the implications and comment on whether and how the issues may be addressed or resolved.
The aim of this requirement, which came into effect on 1 January 1999, is to provide Ministers with information on the implications of any policy proposals that are inconsistent with the HRA before proposals reach the legislation or implementation stage. Each department is required to carry out its own assessment of any potential inconsistencies.

Rights of the child

Protections
Entitlements
Freedoms

The UN Convention on the Rights of the Child, to which New Zealand is a signatory, can be summarised under three headings:

Protections

Legally based responsibilities of the State to protect children from:

• loss of identity
• discrimination
• interference with privacy
• abuse and neglect
• sexual exploitation
• illicit transfer between countries
• child labour
• drug usage, production and distribution
• active part in armed conflict
• lack of care and training if disabled
• lack of protection in refugee status
• torture and capital punishment.

Entitlements

These are what children can expect from society; either from parents or, where they cannot provide it, from the State. They are entitled to:

• survival and development
• a name and nationality
• to live with their parents
• to receive direction from their parents
• health care
• diversity of information
• adequate standard of living
• social welfare
• education
• contact with both parents
• dignified treatment within juvenile justice
• rehabilitative care
• the right to enjoy their own culture.

Freedoms

Children have the right to think, decide and act with the same freedom as adults, taking into account the maturity of the child and the kind of action involved. They should have:

• free expression of opinion
• leisure and recreation
• freedom of information
• privacy
• freedom of association
• freedom of conscience and religion..

The laws we live by

Past DecisionMaker Guides have focused on the law and justice – helping people identify law that affects you at times of conflict. But there are other types of domestic and international law, such as company, tax, employment, consumer, family, environmental, local government. These provide frameworks within which people and organisations manage their relationships with other people and organisations. Indeed, they are the laws we live by the laws that govern the activities of everyday life.
In this edition of the DecisionMaker Guide to Parliament and Government, we have touched on some of these. In later editions, we hope to explore them in more depth.

Find out more!

For more information on the New Zealand Human Rights Commission, call 0800 4 YOUR RIGHTS, visit the website, or contact us by email.

Human Rights Commissioner Merimeri Penfold greets a member of a Scottish parliamentary delegation with a hongi.

Members of the Human Rights Commission staff at an information stall for Human Rights Day 2002.

Infoline member Peter Mill performing a waiata at a Commission function