Concluding Observations of the Committee on the Elimination of Racial Discrimination : New Zealand. 11/01/2002.
A/57/18,paras.412-434. (Concluding Observations/Comments)

Convention Abbreviation: CERD
Committee on the Elimination of
Racial Discrimination
Sixty-first session (5-23 August 2002)



412. The Committee considered the combined twelfth, thirteenth and fourteenth periodic reports of New Zealand, which were due on 22 December 1995, 1997 and 1999, respectively, submitted as one document (CERD/C/362/Add.10), at its 1539th and 1540th meetings (CERD/C/SR.1539 and 1540), held on 14 and 15 August 2002. At its 1551st meeting (CERD/C/SR.1551), held on 22 August 2002, it adopted the following concluding observations.

A. Introduction

413. The Committee expresses its appreciation to the State party for its detailed report, which contains pertinent information on the law and practice relating to the implementation of the Convention. It further welcomes the supplementary and updated information provided to the Committee, including the detailed answers given by the delegation to the questions posed by members of the Committee.

414. The Committee notes with appreciation that the report contains information on developments, as well as responses to the concerns identified by the Committee in its concluding observations on the previous report.

415. Positive aspects

416. The Committee welcomes the information that the “fiscal envelope” policy, which limited both the total funds available for the settlement of claims with Maori and for the settlement of all historical claims, was abandoned in 1996 in favour of a programme of “fair and equitable” settlements. The Committee is encouraged by the progress that has since been made on the settlement of historical Maori grievances and claims with individual iwi (tribes), including components of financial compensation and formal apology on behalf of the Crown.

417. The Committee welcomes acknowledgement of the disadvantaged position in society of minorities, especially Maori, and accordingly appreciates the large number of initiatives, programmes and projects in the areas of health, education, employment, social welfare, housing, language and culture, and correctional services, which are designed to address the specific needs of Maori, Pacific Island people and persons from other groups such as refugees and ethnic minorities.

418. The Committee welcomes the examination by the New Zealand Human Rights Commission of all domestic acts, regulations, government policies and administrative practices with a view to assessing their consistency with the anti-discrimination provisions of the Human Rights Act, a programme known as Consistency 2000. It further welcomes the comprehensive audit process undertaken by the Government to identify and resolve possible inconsistencies between the Human Rights Act and other legislation and regulations, known as Compliance 2001.
419. The Committee notes with satisfaction the provisions of the Human Rights Amendment Act 2001, which amalgamates the New Zealand Human Rights Commission and the office of the Race Relations Conciliator and provides for a single complaints system for the determination of human rights complaints as well as for the possibility of challenging government action before the Human Rights Review Tribunal and the courts.

420. The Committee welcomes the introduction of amendments to the electoral roll system, in particular the Maori electoral option, which have contributed to an appreciable increase in the representation of Maori in Parliament.

421. The Committee welcomes the State party’s policies and initiatives designed to improve the status and use of the Maori language, including the increases supply of services in the Maori language, including in education and State broadcasting.

422. The Committee notes with satisfaction that the Sentencing Act 2002 provides, in section 9 (1) (h), that where an offender commits an offence wholly or partly because of hostility towards a group of persons with common characteristics such as race or colour, this must be taken into account as an aggravating factor by the court in the sentencing process.

423. Concerns and recommendations

424. While noting the programmes and projects initiated by the State party mentioned above, the Committee remains concerned about the continuing disadvantages that Maori, Pacific Island people and other ethnic communities face in the enjoyment of social and economic rights, such as the rights to employment, housing, social welfare and health care. The State party is invited to devote priority attention to this issue and to continue to encourage active and effective participation by Maori in the search for solutions such as the Maori Mental Health Strategic Framework adopted in May 2002, with a view to further reducing these disadvantages.

425. The Committee continues to be concerned at the low representation of Maori women in a number of key sectors and their particular vulnerability to domestic violence. It encourages the State party to work towards reducing existing disparities through appropriate strategies.

426. While noting the measures that have been taken by the State party to reduce the incidence and causes of crime within the Maori and Pacific Island communities, the Committee remains concerned at the disproportionately high representation of Maori and Pacific Islanders in correctional facilities. The State party is invited to ensure appropriate funding for the measures envisaged or already initiated to address the problem.

427. The Committee takes note of the operation of sections 131 and 134 of the Human Rights Act, according to which the institution of criminal proceedings against those accused of incitement to racial hatred is subject to the consent of the Attorney-General. Observing that the institution of such proceedings is rare, the State party is invited to consider ways and means of facilitating the institution of proceedings in this field.

428. The Committee notes that the report provides limited information on compliance with article 4 of the Convention. It invites the State party in its next periodic report to provide more extensive information on measures taken to comply with this article. In particular, the Committee would appreciate additional information concerning the proscription of racist organizations, as well as the modalities for dealing with complaints of discrimination and the remedies granted to victims who have well-founded complaints.

429. The Committee notes with concern that almost all asylum-seekers presenting themselves at the border after the events of 11 September 2001 were initially detained. While it notes that this practice by the New Zealand Immigration Service was successfully challenged in the High Court and the practice of detaining asylum-seekers has been suspended except for a small number of cases, it also notes that the High Court’s decision has been appealed by the Immigration Service and that the practice may resume if the appeal is successful.

430. The Committee has noted the recent interpretation of the concepts of “affirmative action” and “equality” by the former Complaints Review Tribunal in relation to section 73 of the Human Rights Act, and by the High Court in relation to section 65 of the Human Rights Act. While it lacks detailed information about the two cases referred to in the report of the State party, it considers that the State party appears to take a narrower view of the scope of special measures than is provided for in articles 1 and 2 of the Convention.

431. The Committee notes that there is limited information in the report on the enjoyment of the rights mentioned in article 5 of the Convention by ethnic minorities other than the Maori. The Committee recommends that further information be submitted in this regard in the next periodic report.

432. The Committee notes the extensive work currently under way to review constitutional arrangements for Tokelau. It encourages the State party to ensure that, while giving due attention to the culture and customs of the people of Tokelau, human rights obligations are woven appropriately into any new constitutional arrangements.

433. It is noted that the State party has not made the optional declaration provided for in article 14 of the Convention, and the Committee recommends that the possibility of doing so be considered.

434. The Committee recommends that the State party take into account the relevant parts of the Durban Declaration and Programme of Action when implementing the Convention in the domestic legal order, in particular in respect of articles 2 to 7 of the Convention, and that it include in its next periodic report information on action plans or other measures taken to implement the Durban Declaration and Programme of Action at the national level.

435. The Committee recommends that the State party’s reports be made readily available to the public from the time of their submission and public release and that the Committee’s concluding observations on these reports be similarly publicized.

436. The Committee recommends that the State party submit jointly its fifteenth, sixteenth and seventeenth periodic reports, due on 22 December 2005, that it be an updating report and that it address the points raised in the present concluding observations.

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