Committee on the Elimination of Racial Discrimination examines the report of New Zealand

Committee on the Elimination
of Racial Discrimination

16 August 2017

The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined twenty-first and twenty-second periodic report of New Zealand on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

Presenting the report, Andrew Bridgman, Chief Executive and Secretary for Justice at the Ministry of Justice of New Zealand, said that the Government was taking strategic and system-wide approaches to ending direct and indirect discrimination against ethnic minorities.  Some highlights included bringing offenders of human trafficking to justice, improving access to maternity and child health services for Pacific peoples, and greater access to re-integrative services for young Maori offenders.  The Government had also developed a whole-of-government strategy to reduce family violence and sexual violence, which disproportionately affected Maori and Pacific communities.  Over the course of history, New Zealand had moved from a place where the rights of Maori had been largely ignored, to a place where Maori perspectives were commonly informing decision-making.  Despite this progress, people still faced direct and indirect discrimination and there were still significant socio-economic inequalities between ethnic populations.  The most significant inequalities remained between the Maori and Pacific peoples compared with the general population.  They fared worse in terms of health, education, employment and housing outcomes, and they were over-represented in social welfare statistics, the criminal justice system, and the State care system.

Susan Devoy, New Zealand Race Relations Commissioner, said she was concerned about the country’s social cohesion, which was crucial for good race relations.  A major concern was that too often policies relevant to ethnic minority communities appeared to be tacked on to general policies, which limited the reach and effectiveness of well-intentioned initiatives.  There was also a need for a comprehensive approach across the justice, law enforcement and penal systems to address the significant ethnic disparities in detention rates and criminal justice.  Another problem was addressing the historic abuse of more than 100,000 New Zealand children and vulnerable adults in State institutions between the 1960s and 1990s.  Without a full and public inquiry into the systemic abuse of children and vulnerable persons in State institutions, society would never be able to understand the root causes of the problems it was grappling with now, Ms. Devoy stressed.

In the ensuing discussion, Experts welcomed the Government’s intention to educate the general public about the provisions of the Treaty of Waitangi, the recognition of Maori cultural norms, and the willingness of the State party to apologise for historical injustices.  They also commended the State party’s readiness to openly acknowledge the existence of economic and social inequalities, and to address them.  Nevertheless, they raised concerns regarding de facto independence of the New Zealand Race Relations Commissioner, the entrenchment of the Treaty of Waitangi in the Constitution, the Treaty settlement process, lack of protection for the intellectual property rights of Mori over their traditional knowledge, genetic material and resources, respect for free, prior and informed consent of Maori, lack of an official and independent inquiry into the abuse of tens of thousands of Maori children in State institutions, over-representation of Maori in the prison population, inclusion of Maori customary law in the country’s legislation, the high threshold for hate speech and incitement to racial hatred, data collection on hate crimes, marginalisation of the Maori language in schools, conditions in migrant detention, discrimination of migrant workers, the family reunification policy, unaccompanied minors, legal value of the Treaty of Waitangi, high alcoholism rate among Maori youth, and institutional racism.

In his closing remarks, Mr. Bridgman noted that racial discrimination was a complex and challenging issue, but the Government was committed to learning more about it and to continue its progress in the elimination of racial discrimination.

Gay McDougall, Committee Expert and Country Rapporteur for New Zealand, said that New Zealand had a lot to be proud of and that the Government was thinking of the right issues.  She wished the delegation well and thanked them for the dialogue.

Anastasia Crickley, Committee Chairperson, underlined the multicultural dimension of New Zealand which also raised many complex issues to resolve.  The Committee looked forward to hearing about specific targets of New Zealand’s national action plan on racial discrimination.   

The delegation of New Zealand consisted of representatives of the Ministry of Justice, the Department of Corrections, the Ministry of Social Development, the Ministry of Education, and the Permanent Mission of New Zealand to the United Nations Office at Geneva.

The Committee will next meet in public on Friday, 25 August, at 3 p.m. to close its ninety-third session.  

Report

The combined twenty-first and twenty-second periodic report of New Zealand can be read here: CERD/C/NZL/21-22. 

Presentation of the Report

ANDREW BRIDGMAN, Chief Executive and Secretary for Justice at the Ministry of Justice of New Zealand, reminded that New Zealand was identified as one of the world’s most stable and well-governed States, with high Government transparency and among the lowest perceived levels of corruption.  The country also rated highly for civic participation in the political process and high voter turnout.  The Government was taking strategic and system-wide approaches to ending direct and indirect discrimination against ethnic minorities.  Some highlights included bringing offenders of human trafficking to justice, improving access to maternity and child health services for Pacific peoples, and greater access to re-integrative services for young Maori offenders.  The Government had also developed a whole-of-government strategy to reduce family violence and sexual violence, which disproportionately affected Maori and Pacific communities. 

Over the course of history, New Zealand had moved from a place where the rights of Maori had been largely ignored, to a place where Maori perspectives were commonly informing decision-making.  In 1840, New Zealand’s founding treaty, the Treaty of Waitangi, was signed by New Zealand’s indigenous Maori peoples and the British Crown.  It encompassed both individual and collective rights and it provided a framework for the State to promote, protect and respect indigenous rights.  Nevertheless, the Treaty had been largely ignored from when it had been signed through to the mid-twentieth century and Maori had suffered greatly during colonisation.  The period from the mid-twentieth century to the present day had seen important changes in the legal status and prominence of the Treaty of Waitangi, whose principles were partnership, protection and participation.  The Crown and Maori had a duty to act reasonably, honourably and in good faith.  The Crown had an active duty to protect the interests of Maori in their lands and taonga (treasured possessions, including culture and language).  That commitment could be seen in the establishment of the Waitangi Tribunal in 1975, which was a permanent commission of inquiry that made recommendations on claims brought by Maori relating to Crown actions that breached the promises made in the Treaty. 

The Government was committed to shaping a new future partnership with Maori and had accepted a moral obligation to resolve Maori historical grievances in accordance with the principles of the Treaty of Waitangi.  The primary way of achieving that was through a treaty settlement, which was an agreement between the Crown and a Maori claimant group to settle all of the group’s historical claims against the Crown.  Treaty settlements had the force of the law and were generally given effect by an act of Parliament.  The settlements usually included an historical account of events, a Crown apology to the claimant group for the Crown’s action or inaction, and cultural, financial and commercial redress.  Since 1987, the Crown had signed 84 deeds of settlement settling historical claims with groups, which represented over 70 per cent of New Zealand’s land area.  Another 53 settlements were currently being negotiated to complete the process.  Treaty settlement marked the beginning of what should be a long and enduring partnership between the settled group and the Crown. 

Nowadays, New Zealand was one of the most ethnically diverse countries in the world, with over 200 ethnic groups speaking over 160 languages.  In June 2016, the Government had increased the size of the refugee quota from 750 to 1,000 places per year.  Quota refugees were granted residence on arrival in New Zealand, and had the same access to employment, education, income support and health support as other New Zealand residents and citizens.  They were also eligible to apply for New Zealand citizenship after five years of residence.  The Office of Ethnic Communities promoted the economic and social benefits of ethnic diversity and worked with Government agencies and organizations to ensure that ethnic New Zealanders could participate in and contribute to New Zealand life.  The country’s diversity was well reflected in Government.  The representation of Maori and Pacific peoples in Parliament was above their proportion in the general population, with 25 per cent. 

Despite progress, people still faced direct and indirect discrimination and there were still significant socio-economic inequalities between ethnic populations.  The most significant inequalities remained between the Maori and Pacific peoples compared with the general population.  They fared worse in terms of health, education, employment and housing outcomes, and they were over-represented in social welfare statistics, the criminal justice system, and the State care system.  More Maori perspectives were being included in decision-making, better partnerships were being built between the State and iwi (tribes), and tikanga Maori (Maori custom) and te reo Maori (the Maori language) were being built into institutions.  For example, Whanau Ora was an extended family wellbeing approach that placed families at the centre of planning and decision-making and tailored solutions to their unique circumstances.  Following the Committee’s concluding observations in 2013, there were fewer Maori coming into the justice system, even though the Maori population was increasing.  There had been a 17 per cent decrease in Maori adult offenders from 2011 to 2016, and a 35 per cent decrease in Maori youth offenders. 

The Government was committed to Maori-specific responses in the justice system that included collaboration and formal agreements with Maori and Pacific communities.  Legislation had been passed to include 17-year-olds in the youth justice system, rather than the adult system.  As for strengthening the measures to increase the level of educational achievement of Maori and Pacific children, the Government was focused on a number of initiatives to modernise the country’s education system and to better meet the needs of learners across the educational system.  That included Maori language immersion early learning and schooling.  Another key achievement was Healthy Families New Zealand which had an explicit focus on improving Maori health and reducing inequalities for groups at increased risk of chronic diseases.  The Government was also promoting the increase of the Maori health workforce, by increasing the number of Maori and Pacific nurses and doctors.

SUSAN DEVOY, New Zealand Race Relations Commissioner, noted that New Zealand was one of the most remote and, yet, one of the most ethnically diverse nations on earth.  Maori New Zealanders had fought for generations for their human rights.  Indeed, eliminating all forms of racial discrimination in New Zealand would always be a work in progress.  Ms. Devoy said she was concerned about the country’s social cohesion, which was crucial for good race relations.  A major concern was the adequacy of current Government structures and processes to deal with the changing demographics.  Too often policies relevant to ethnic minority communities appeared to be tacked on to general policies, which limited the reach and effectiveness of well-intentioned initiatives.  The benefits and consultation with ethnic minorities were not always appreciated.  There was also a need for a comprehensive approach across the justice, law enforcement and penal systems to address the significant ethnic disparities in detention rates and criminal justice. 

Maori made up more than 50 per cent of the incarcerated population, while a staggering 58 per cent of the female prison population were Maori women.  More than 100,000 New Zealand children and vulnerable adults had been incarcerated in State institutions between the 1960s and 1990s, and many had been subjected to inhumane physical, psychological and sexual abuse.  Maori children had been more likely to be taken from their families for little or no reason at all.  The removal of Maori children into welfare institutions by the State had been the real start of the systemic and mass imprisonment of Maori.  Without a full and public inquiry into the systemic abuse of children and vulnerable persons in State institutions, society would never be able to understand the root causes of the problems it was grappling with now.  A comprehensive approach across the justice sector was required to identify the root causes and eliminate systemic discrimination.  There was also a need to strengthen protection and comprehensive implementation of treaty and indigenous rights, and to collect better data about hate crimes, Ms. Devoy concluded. 

Questions by the Country Rapporteur

GAY MCDOUGALL, Committee Expert and Country Rapporteur for New Zealand, welcomed the Government’s intention to educate the general public about the provisions of the Treaty of Waitangi, the recognition of Maori cultural norms, and the willingness of the State party to apologise for historical injustices.  She also commended the State party’s readiness to openly acknowledge the existence of economic and social inequalities, and to address them. 

Continued concerns included the full independence of the New Zealand Race Relations Commissioner, which was operating under the Ministry of Justice.  What were the plans of the State party to combat racial discrimination in line with the Durban Declaration and Programme of Action?    

Ms. McDougall reminded that there had been no progress in the entrenchment of the Treaty of Waitangi in the Constitution.  There had also been no progress with respect to the recommendation of the Committee that any departure from the decisions of the Waitangi Tribunal should be accompanied by a written explanation by the Government.

There was no evidence of the protection of Maori’s intellectual property rights over their traditional knowledge, and genetic material and resources.  Their free, prior and informed consent had not been respected in a number of development projects. 

What was the standard of decision-making in granting treaty settlements?  How was compensation determined and did it meet market standards?  All decisions had been made by the Government and one side had dominated the decision-making.  The process did not seem fair because Maori owned all of the land in the first place. 

As for the abuse of tens of thousands of Maori children in State institutions, why did the State party not hold an official and independent inquiry into that matter, and why would it not meet with the petitioners?  

Questions by Committee Experts

GUN KUT, Committee Expert and Follow-up Rapporteur, reminded that the Committee had previously requested the State party to present an interim report on the follow-up to the following issues: to develop a national action plan on human rights, to develop comprehensive legislation on online incitement to hatred, to develop a timetable to protect the intellectual property rights of Maori, and to develop and preserve the Maori language.  Mr. Kut commended the State party for having submitted the interim report in a timely manner, although some responses would need to be more detailed.

With respect to the fact that Maori made up half of the country’s prison population, what strategies did the Government contemplate to reduce that percentage?  What proportion of the prison population had access to the option of social re-insertion?

The Maori customary law had not been taken into account in the investigation of the historical abuses of Maori.          

As for hate speech and incitement to racial hatred, the threshold for those crimes was very high under New Zealand law.  The Committee usually went for the reversal of the burden of proof in cases of hate crimes.  Hate crimes were often under-reported in New Zealand. 

Experts observed that if the same criteria of criminalisation were applied to Maori offenders, their proportion in the prison population would decrease significantly.

What were the current priorities of the Government in the education policy?  What were the socio-economic indicators to demonstrate the success of enhanced social mobility among Maori and Pacific communities?

Experts applauded the efforts of the Government to preserve and protect the Maori language.  However, there were reports that the Maori language stayed on social margins because its use was discouraged in schools.  How could educators be held accountable for implementing provisions of the Treaty with respect to the preservation of the Maori language?    

Did the Government intend to increase its refugee quota?  Why were quota refugees treated differently?  What efforts had been made to improve the conditions for migrants in detention?  Did civil society have access to detention centres?  There was ongoing discrimination of migrant workers who suffered from difficult labour conditions. 

What was the number of labour inspection visits?  What strategies were in place to improve labour conditions for migrant workers?  What were anti-trafficking policies and why had there been so few cases reported?  How was the family reunification policy applied?

Experts underlined that Maori community life was not possible without the recognition of their right to land.  Did the State party intend to develop a plan of reconciliation measures for past abuses? 

What was the legal value attached to the 1840 Treaty of Waitangi?  Since New Zealand had a dualist system, international treaties needed to be transposed into domestic law.  How was that done?  

What kinds of offences were considered by courts and who were the victims?  How was data pertaining to racial crimes collected? 

The English and Maori versions of the Treaty of Waitangi were different.  Could the delegation comment on that.

A very large number of Maori suffered from alcoholism, affecting particularly Maori youth, for which they were criminalised.  Was there a higher rate of alcoholism among Maori today?  There was a need for an activist approach on the part of the Government in that respect. 

What kind of demographic changes were taking place in New Zealand and what were the principles guiding the country’s immigration policy?  What was the present number of asylum seekers in New Zealand? 

As for the Government’s strategy to integrate immigrants, had the Government begun assessing the implementation of that strategy?  Were there indicators on unaccompanied minors and a relevant strategy for them?

What category of children did not enjoy access to free education? 

Replies by the Delegation

ANDREW BRIDGMAN, Chief Executive and Secretary for Justice at the Ministry of Justice of New Zealand, said that data collection was very important to understand the root causes of inequalities, to continue learning and to strengthen efforts to fight discrimination.

The delegation explained that the Constitution was not written in one piece and it was not supreme law.  Instead, it was drawn from a number of important decisions and customary conventions, which meant that it could be adapted to social changes.  The Treaty of Waitangi was an important part of the New Zealand society as a founding document, governing the New Zealand land and representing interests of all New Zealanders.  The Treaty was increasingly becoming imbedded in legislation, and legislation was expected to comply with the provisions of the Treaty.  The recognition of Maori customary law was not dependent on the Treaty.

The Second National Plan of Action on human rights contained Government actions to address Universal Periodic Review recommendations.  It was widely used both by civil society and the Government.   

The relationship between the Crown and Maori provided a stronger platform for the involvement of Maori in decision-making and policy development.  An example of progress of meeting recommendations regarding Maori was in the context of Maori culture and knowledge. 

As for the historic abuse of children in State welfare institutions, the Government was open about that issue and recognized that children did suffer abuse in those institutions.  The Government was open to an inquiry, but it was not convinced that such an approach would be meaningful to victims.  New Zealand had established processes for redress in such cases.  The Government had also established healing assistance to victims, particularly assistance to Maori.  The Ministry of Social Development had resolved several hundred disputes through its dispute settlement mechanisms, without going through courts.  The Ministry of Health also had mechanisms to settle historic abuse issues. 

As part of the child-centred approach in welfare service, voices of children would inform relevant policies, especially those affecting vulnerable Maori children.  The Ministry for Vulnerable Children was currently developing national care standards, and it had established a new independent advocacy service for children in care service.  Recent legislation changes stipulated that children should be returned to their families, and when that was not possible, children should be placed with their extended family members who could provide for them. 

With respect to hate speech and hate crimes, the delegation clarified that the high threshold under New Zealand law was due to the need to balance between the freedom of expression and freedom to be free from discrimination.  In the 2013 case of cartoons that had offended Maori, the tribunal had found that the cartoons had not been likely to incite racial hatred, even though they had angered the Maori community. 

The police was looking to address the problem of data collection on hate crimes.  It was completing a policy to deal with all types of crime motivated by hate, aimed at good recording practices.  Currently, the police immediately recorded crimes that were believed to be motivated by race, ethnicity, religion, gender and disability.  Offenders had been prosecuted for abusive language, criminal harassment, offensive behaviour, criminal damage, and assault.      

As for Maori in the criminal justice system, the number of Maori under the age of 17 in the criminal justice system had declined by 52 per cent, and by 12 per cent among the general Maori population.  However, their proportion in relation to other prison populations had increased.  The Government was fully committed to address that problem, and had set a new target to reduce their over-representation in the prison population by 25 per cent by 2025.  The new strategy would encourage more Maori-specific responses in the criminal justice system, as well as more Maori to work in the system.  Maori youth and adult courts had been established to that end.  Maori culture was increasingly becoming an important part of New Zealand courts, as well as the Maori language.  The police had been focused on dealing with the over-representation of Maori offenders in the criminal justice system for a long time.  Part of that effort was to include Maori and Pacific police officers and advisers in key decision-making positions, support services to Maori youth on the verge of offending, work with iwi (tribe) panels, and work with correctional services in terms of changing their cultural practices.   

The justice strategy already included Maori views and perspectives in social rehabilitation programmes.  Culturally based programmes had proved that they could reduce the rate of offending.  However, there was no one-size-fits-all approach to address the over-representation of Maori in the prison system.  

Significant increases in ethnic diversity in New Zealand had taken place in the 1990s, with an increase of mostly South East Asian populations.  The principle guiding the country’s immigration policy was to manage immigration in a way that balanced national interests.  New Zealand maintained a robust legal system to guarantee the rights of migrant workers.  It was an offence to exploit temporary migrant workers.  Migrants could access health and education.  The Government funded English courses and quota refugees were granted residence upon arrival, as well as access to basic social services. 

New Zealand was committed to combatting trafficking in persons.  Given that penalties for trafficking ranked with murder and rape, charging a person with trafficking in New Zealand had a high evidential threshold and charges had to be approved by the Solicitor-General.  Two cases of trafficking had been prosecuted, one resulting in imprisonment of nine and half years, and the other in home detention and community service.  In February 2017, the Government had announced new measures to stop employers who had breached immigration and employment laws from recruiting migrant workers.

Under the refugee quota, the country had a wider definition of family than under standard immigration policy, to meet the aim of bringing in complete households when resettling families.  The refugee quota also had a sub-quota for family reunification.

As for asylum seekers, the effect of refusal to grant a person entry permission into New Zealand was that the person was liable for turnaround, meaning that they could be arrested and detained by police for no longer than 96 hours for the purpose of placing them on the first available craft leaving New Zealand.  However, a person who claimed asylum could not be deported until their claim had been assessed and declined.   

The Maori Language Act of 2016 provided for the development of the Maori language strategy for its revitalisation and promotion in schools.  There was also a programme for the promotion of Pacific community languages at primary and secondary schools.  There had been significant gains in the education achievements for Maori and Pacific children.  As for employment outcomes for Maori and Pacific children, it could be said that five years after graduation from tertiary education they were more likely to find employment and to have higher income. 

Maori was the second most common language offered in schools in New Zealand.  The country’s education system was a very devolved one and based on community needs.  However, the Government had the power to set long-term educational priorities and school boards were required to follow them.  School performance was reviewed through regular cycles and when schools did not perform well, various measures could be taken to get them back on track. 

The Treaty settlement process was not a court-based process, but a negotiation process between the Crown and claimant groups.  The deed of settlement had to be ratified by a sufficient majority of the claimant group.  The durability of settlements was based on six principles: good faith and mutual trust, restoration of relationship, just redress, consistency in the treatment of claimant groups, transparency, and negotiation.  The Treaty settlement process was an arduous and tense process; iwi (tribes) had to make a conscious decision to proceed even though the process itself was limited in terms of redress.      

The 2011 Marine and Coastal Area Act (Takutai Moana) guaranteed Maori customary rights.  The Government was finalising its approach in negotiations with more than 300 applicants.   

Follow-up Questions by Experts

GAY MCDOUGALL, Committee Expert and Country Rapporteur for New Zealand, asked how the Government was engaging with Maori on a daily basis.  What was the representation of Maori in the civil service, and were they considered as equal partners?  She noted that there seemed to be a power gap between the Government and Maori.  Were culturally based programmes, such as the one on including the voice of children in State care, implemented by Maori or non-Maori people?      

Ms. McDougall reminded that the Treaty settlement process only concerned one per cent of all land in New Zealand.  She also raised the issue of institutional racism.  How deeply did it go and what needed to be done to root it out?  What was the level of institutional racism in healthcare? There was a 25 per cent wage gap between Maori health professionals and others. 

Was the entire community consulted on the home building project by Fletcher Building Limited in Waitangi?  There were reports of some persons opposing the construction of homes. 

To what extent was New Zealand taking part in the International Decade for People of African Descent?  What was the status of the Cook Islands? 

There were reports of hate speech directed against Muslims and Asians which had not been treated as hate crimes. 

What were the underlying reasons for the high incarceration rate of Maori youth?  Were they members of gangs? 

The State party seemed to be reluctant to adopt Maori customary law.  Why was it not applied systematically?

Experts raised the issue of racial discrimination in employment, extension of family reunification places, speeding up the process of asylum granting, social rehabilitation of Maori, and racialized nature of school bullying.   

Replies by the Delegation    

ANDREW BRIDGMAN, Chief Executive and Secretary for Justice at the Ministry of Justice of New Zealand, explained that the Treaty of Waitangi was part of the constitutional framework.  The Treaty settlement process was a way in which New Zealand had sought to address the wrongs of the past.  The Government could not fully compensate for what had been taken away in 1840, but it could provide some compensation to claimant groups in a way that enabled them to move forward.  The provided compensation had empowered Maori economically.     

As for the culturally appropriate placement of Maori children in State institutions, Maori played a role in the implementation of relevant programmes.  The new legal changes stipulated that the preference was to keep Maori children within their families. 

All of the public service executives were committed to diversity and to transparency on workforce diversity and gender pay gaps.  People of European descent still made up around 70 per cent of all the public servants, whereas Maori made up 16 per cent. 

The Fletcher Building Limited housing project in Waitangi had been preceded by negotiations with some groups in the area, but not with all of them.  The land in question was privately owned. 

The police worked closely with community leadership and itself consisted of more than 100 ethnicities who could converse with different communities in their native languages.  The New Zealand police was the first one in the region to allow police officers to wear their national costumes, such as Sikh turbans, and to set up prayer rooms for Muslim police officers. 

Gangs were a long-standing problem.  Any gang member could turn around their lives through social rehabilitation programmes.   

The application of Maori customary law was not specifically precluded through any specific provision.  An example of that was the Marine and Coastal Area Act (Takutai Moana). 

Social rehabilitation programmes received Maori perspectives and were designed specifically within the Maori framework. 

As for the status of the Cook Islands, New Zealand had responsibilities for the implementation of the Convention in some parts.            

Concluding Remarks

GAY MCDOUGALL, Committee Expert and Country Rapporteur for New Zealand, said that New Zealand had a lot to be proud of and that the Government was thinking of the right issues.  She wished the delegation well and thanked them for the dialogue.

ANDREW BRIDGMAN, Chief Executive and Secretary for Justice at the Ministry of Justice of New Zealand, thanked the Committee Experts and civil society for their participation.  He acknowledged the Committee’s observations and questions, adding that the delegation would provide written answers to the outstanding questions.  Racial discrimination was a complex and challenging issue, but the Government was committed to learning more about it and to continue its progress in the elimination of racial discrimination.

ANASTASIA CRICKLEY, Committee Chairperson, acknowledged the very important contribution of the New Zealand national human rights institution and non-government organizations to the dialogue.  She underlined the multicultural dimension of New Zealand which also raised many complex issues to resolve.  The Committee looked forward to hearing about specific targets of New Zealand’s national action plan on racial discrimination.

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