Ombudsman’s investigations will ensure the voices of people with learning disabilities are heard

Source: Human Rights Commission

The Ombudsman’s investigations into the oversight of facilities and services for people with learning disabilities is timely says Disability Rights Commissioner Paula Tesoriero.

The voices of people with learning disabilities have often been unheard or silenced for too long, says Ms Tesoriero.

“This is particularly so when people are living in secure residential facilities and have limited access to independent advocacy,” she says.

Ms Tesoriero says it is vital to evaluate whether the current arrangements protect the rights of people when they were detained or living in controlled environments.

We particularly welcome the Ombudsman’s statement referencing the United Nations Convention on the Rights of Persons with Disabilities. This will ensure the investigation considers the extent to which people with learning disabilities:

  • maintain the right to give and withdraw consent to any medical treatment
  • can exercise  maximum personal autonomy, choice and control when they are living in restricted environments.
  • can access the right support to express their will and preferences and ensure that these are listened to.

Ms Tesoriero says it is important to investigate whether people with learning disabilities who are living segregated from others have decent living conditions that at least meet the minimum standards set out in human rights conventions.

“A 2017 report by Dr Sharon Shalev indicated that this was not always the case,” she says.

“We need robust processes to ensure people with learning disabilities are not unlawfully detained in inappropriate facilities or detained longer than they would have been had they been through the criminal justice system.

“While this investigation is focussed on the Ministry of Health, it may also shed light on the justice sector processes and whether all the safeguards and guarantees afforded to non-disabled people are also applied to disabled people,” Ms Tesoriero says.

“We also welcome the second investigation examining the data collection about deaths within services. This will be an important contribution to improving practice,” she says.

Details of the Ombudsman’s investigations can be found here.

Dr Shalev’s report can be found here.

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17 recommendations from the United Nations Universal Periodic Review on disability

Source: Human Rights Commission

Earlier this month, United Nations member states made recommendations to improve human rights in New Zealand. There were 194 recommendations. Seventeen of the recommendations were specifically about disability. 

The recommendations have been published in a draft report. These will be finalised and presented to the New Zealand Government to accept or note. Once accepted they will become part of New Zealand’s National Plan of Action.

Here are the recommendations made to the New Zealand Government about disability. The country that made the recommendation is listed at the end of each recommendation. 

  1. Continue to work to fully harmonize national law with the provisions of the Convention on the Rights of Persons with Disabilities (Chile) 
  2. Pursue and implement the Zero Carbon Bill and the Environmental Health Action Plan, having taken into account the special vulnerabilities, views and needs of women, children, youth, persons with disabilities, and local and marginalised communities (Fiji)
  3. Increase employment opportunities for marginalized groups, and notably Māori, Pasifika, women and disabled persons (Hungary)
  4. Address discrimination in employment against indigenous persons, individuals belonging to ethnic minority groups, and individuals with disabilities, including those with intellectual disabilities, and remove barriers to their participation in the labour market in addition to funding further community support services, to include post-learning opportunities (United States of America)
  5. Continue its efforts in order to further the protection of Economic and Social Rights of vulnerable persons, including persons with disabilities (Greece)
  6. Continue its efforts in increasing the availability of quality affordable housing and to ensure equitable housing for the elderly, persons with disabilities, and all ethnic groups (State of Palestine)
  7. Enhance mental health policies with a view to guaranteeing that persons with mental health conditions and psychosocial disabilities have access to appropriate mental health services, including community-based care, which respect their dignity and human rights (Brazil)
  8. Take immediate steps to combat solitary and solitary confinement in medical facilities applied to juveniles, persons with intellectual or psychosocial disabilities, pregnant women, breastfeeding mothers in prison and in all health care institutions (Syrian Arab Republic)
  9. Continue to strengthen efforts to combat domestic and all forms of gender-based violence, including sexual violence, particularly in relation to Māori and Pasifika women and girls, as well as women and girls with disabilities (Iceland)
  10. Work to combat discrimination against vulnerable children, including Māori and Pasifika children, children belonging to ethnic minorities, refugee and migrant children and children with disabilities (Syrian Arab Republic)
  11. Continue its efforts to extend welfare services and assistance to all persons with disabilities (Bulgaria)
  12. Continue its efforts in implementing legislation and strategies to promote and protect the rights of children and young people and persons with disabilities (Philippines)
  13. Harmonize its national legislation on the rights of persons with disabilities, especially in relation to inclusive education, with international standards (Peru)
  14. Strengthen efforts to combat marginalization and discrimination of children with disabilities, especially in their access to health, education, care and protection services (Belgium)
  15. Grant children with disabilities the right to quality inclusive education and to increase the provision of reasonable accommodation in primary and secondary education in line with international standards (Portugal)
  16. Continue the development of inclusive education programs for children with disabilities (France)
  17. Respect the rights of persons with mental health conditions and psychosocial disabilities in line with the Convention on the Rights of Persons A/HRC/WG.6/32/L.1 12 with Disabilities, including by combatting institutionalization, stigma, violence and overmedicalization, and by developing community-based and people-centred mental health services which promote inclusion in the community and respect their free and informed consent (Portugal)

The Human Rights Commission made their own submission to the United Nations member states in a pre-session last year alongside other civil society organisations.

Pre-sessions are a standard part of the Universal Periodic Review (UPR). They enable National Human Rights Institutions, such as the Commission, and civil society organisations from the countries being reviewed to talk directly with representatives of the United Nations (UN) member states conducting reviews.

At the pre-session, the acting Chief Human Rights Commissioner Paula Tesoriero addressed delegates of UN member states in attendance.

In October, the Human Rights Commission also facilitated an in-country pre-session in Wellington. The pre-session was attended by representatives from over 30 diplomatic embassies, who heard from a panel of 13 civil society organisations, each addressing a diverse range of human rights challenges facing New Zealand. The process was observed by over 60 civil society attendees. 

A list of the panel organisations, as well as copies of their advocacy fact sheets and presentations is available here.

The full Human Rights Commission submission on New Zealand’s third universal periodic review is available here.

The full list of recommendations is available here

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“It is imperative we do not lack conviction” — Chief Commissioner

Source: Human Rights Commission

By Paul Hunt, Chief Human Rights Commissioner

Friends, we live in a dangerous world.

In many countries, there’s a pushback against human rights, toleration and respect for cultural diversity.

You know the countries. I don’t need to name them. They are not few.

This pushback coincides with a time of shocking global inequalities – deep global poverty – and a burning sense of injustice felt by millions of people.

Critically important global accords are being rejected.

Disarmament treaties are being disavowed.

I hesitate to say it – but one senses a fuse is being lit.

I’m not saying this is the same as the 1920s and 1930s which led to global war and the Holocaust.

But we would be foolish if we did not recognise some resonances, parallels and similarities between those calamitous times and today.

So it is imperative we resist the pushback against human rights that we are witnessing in some countries.

We must resist the ‘othering’ of people and communities — we must resist seeing other human beings as somehow alien — because we know from history that societies can slide from ‘othering’ — to demonization.

And we also know from history that societies can slide from demonization — to genocide.

‘Othering’, demonization, genocide – this is a well-known disastrous trajectory.

So we must vigorously resist the global pushback against human rights, toleration and respect for cultural diversity.

We must advance the human rights of everybody – we must insist on the human rights of all minorities – we must find ways to reinvigorate human rights for these dangerous times.

Here’s a mighty role for New Zealand – for all our peoples – to stand up for all human rights – civil, political, economic, social and cultural rights for everyone — as mandated by the Universal Declaration of Human Rights which was drafted in the shadow of the Holocaust.

As Chief Commissioner I will do all I can to bring human rights into the everyday realities of everyday lives, with a view to fortifying the dignity, equality and wellbeing of all.

In 1919, WB Yeats, the great Irish poet, wrote an astonishingly prophetic poem.

He seemed to foresee the impending disaster — and he warned the world: ‘Do not lack conviction’.

Exactly one hundred years later, we must heed his words:

Turning and turning in the widening gyre

The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

Friends, it is imperative we do not lack conviction.

This speech was made by Chief Human Rights Commissioner, Paul Hunt, for the United Nations International Holocaust Remembrance Day on 27th January, 2019 at Makara Cemetery, Wellington.

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MIL-OSI New Zealand: Human rights and well-being need to be at the centre of Government’s reform agenda

Source: Human Rights Commission

The Chief Human Rights Commissioner Paul Hunt is urging the New Zealand Government to place human rights, equality and well-being in the centre of its reform agenda.

Mr Hunt made the comments in response to the Justice Minister Andrew Little’s submission to the United Nations Human Rights Council in Geneva last night (Monday 21 January).

For decades, successive New Zealand governments have promised to improve how civil, political, economic, social and cultural rights are implemented. This week, the United Nations is holding the government accountable for these commitments, which are binding in international law.

Minister Little updated United Nations member states on the human rights challenges New Zealanders face and how the Government intends to respond.

Mr Hunt noted that many of New Zealand’s human rights challenges arise from social and economic discrimination. Despite efforts by previous governments, Māori, Pacific peoples, women, migrants, refugees and disabled people experience markedly worse outcomes across a range of key indicators, such as housing, health, income, employment and education.

“I welcome the Minister’s frank acknowledgement to the United Nations of the need to urgently address systemic discrimination across many areas of New Zealand society, including health, employment, education and justice.

“I also note that many of the United Nations member states made recommendations regarding family violence, reducing discrimination – particulary in respect of Māori – and addressing a wide range of social and economic inequalities.

“We have almost 30 percent of New Zealand children living in households whose income falls below the income poverty line. As the United Nations has said for many years, poverty is a human rights issue.”

“And with New Zealand facing a housing crisis, the rising housing costs are hitting the poor hardest and the lack of accessible housing is affecting disabled people,” said Mr Hunt.

He acknowledged that the Government has committed to a reform agenda in several key areas, including budgetary planning, physical and mental health services, education, housing, welfare, tax, and historical abuse in State care and in the care of faith-based institutions. 

“These reforms have the potential to reduce inequalities, improve human rights outcomes for all and ensure that New Zealand complies with its international human rights obligations, including economic, social and cultural rights,” said Mr Hunt. 

“In particular, we welcome the introduction of the first “Wellbeing Budget” this year. This signifies the start of a movement towards a more holistic approach to measuring social, economic, cultural and environmental outcomes for New Zealanders. 

“We were also very encouraged by the cross-party support for the child poverty reduction legislation passed by Parliament late last year and the Government’s focus on family violence.” 

However, Mr Hunt observed that the Government does not take a consistent approach when integrating human rights, equality and well-being into policy and service delivery.  

“I strongly encourage the Government and all MPs to ensure that human rights, equality, well-being, fairness and dignity are placed at the centre of new law, policy and practice.”

“A human rights approach to the Government’s reform agenda will help to improve social, economic, cultural and environmental outcomes, and lead to a healthier society for all,” said Mr Hunt.

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MIL-OSI New Zealand: Why it matters that New Zealand could receive its first LGBTI+ recommendation before the UPR

Source: Human Rights Commission

By Katharine Woolrych

Geneva — Worldwide, the rights of people with diverse sexual orientations, gender identities and sexual characteristics are under threat. Same-sex sexual activity is a crime in 72 countries, and can be punished with the death sentence in eight countries.  

Transgender people, whose gender identity is different from the gender they were assigned at birth, and intersex individuals, those born with sex characteristics that differ what are typically seen as female or male traits, face barriers to having their gender identity recognised and respected. They are often are forced to endure the humiliation and long-term trauma of psychiatric diagnosis and non-consensual sterilisation or surgery. 

New Zealand’s third Universal Periodic Review, a five-yearly process whereby a state’s compliance with international human rights treaties and norms is assessed at the United Nations, may feature our first ever recommendation on these issues. On January 21st, representatives from the New Zealand Government will report to the UN on the status of human rights in New Zealand and any action (or intended action) by the government to ensure the full enjoyment of rights in New Zealand.   Following the presentation of the government’s report, UN Member States will make recommendations specific to areas in which New Zealand must improve. 

Despite receiving 228 recommendations over the past two cycles of the UPR, New Zealand has never received a recommendation related to LGBTI+ rights.  At the UPR Pre-Session in Wellington last October, representatives from the Sexual Orientation, Gender Identity and Sexual Characteristics (SOGISC) Coalition and the Intersex Trust of Aotearoa New Zealand urged diplomats present at the Pre-Session representing 33 different countries to make bold recommendations to safeguard the rights of our rainbow communities.  

New Zealand has made progress on LGBTI+ rights. It decriminalised homosexuality in 1986, legislated protections against sexuality-based discrimination in our Human Rights Act, and adopted marriage equality in 2013.  Indeed, today New Zealand is proud to welcome many asylum seekers fleeing persecution on the basis of their gender identity or sexual orientation.  Yet the battle is far from won, particularly for intersex and transgender New Zealanders.  

A landmark report by the Human Rights Commission in 2008 outlined the extent to which trans people continue to face discrimination in all aspects of their lives, thus limiting their rights to dignity, equality and security. While some trans people are comfortable with the expression of their gender identity without some form of surgery, for others surgery is essential to live fully and authentically in their gender. These procedures have a 30-year plus waiting list in New Zealand for both trans feminine and trans masculine people, with access to publicly-funded surgeries limited to four surgeries every two years by the previous government. The new Government has committed to improving access by making this number the minimum rather than the maximum to be performed. However, many trans people continue to be forced to seek unsafe treatments overseas, sometimes with damaging consequences. 

During their presentation at the UPR Pre-Session, the SOGISC Coalition and the Intersex Trust took the opportunity of Intersex Awareness Day to highlight the fact that many doctors around New Zealand continue to perform non-consensual surgeries on intersex children. Speakers Aych McArdle and Elizabeth Kerekere called for legislative protections to comprehensively protect the rights to bodily autonomy of intersex and trans people, and for gender identity and sexual characteristics to be added as prohibited grounds for discrimination in the Human Rights Act.  The impassioned presentation on these issues at New Zealand’s UPR Pre-Session was met with an equally passionate audience response even featuring an impromptu standing waiata. This undoubtedly impressed upon the diplomats in attendance the importance of these issues for New Zealanders. 

Not only were diplomats prompted to consider these issues by the powerful civil society presentation, LGBTI+ rights featured for the first time in New Zealand’s National Report under ‘New and Emerging Issues’. In their report, the Government acknowledged the elevated risk of mental health issues and suicide risk in New Zealand’s LGBTI+ population, as well as issues of discrimination, access to appropriate health services, long waiting lists for surgery, and the treatment of transgender individuals in prison. 

With all these issues on the table, activists and community organisations, as well as members of the rainbow community and their whānau, will be watching closely to see which recommendations and by which States are made on this topic.  Should New Zealand receive its first recommendation on SOGISC issues, the Government then may choose to either ‘support’ (accept) or ‘note’ (reject) the recommendation. If New Zealand supports a recommendation for instance, to include gender identity, gender expression, and sex characteristics in the Human Rights Act at our next UPR in 2024 the Government would be expected to report on progress made towards this recommendation. Supporting recommendations does not equate to a legally binding commitment, but the regular UPR process is intended to hold States accountable. While States may still choose to dismiss any recommendation made to them at the UPR, international norms dictate that real consideration should be given to recommendations out of respect for other States.  

New Zealand in particular is eager to be seen as an upstanding participant in the ‘rules-based’ international system, and in 2014 accepted 121 out of 151 recommendations it was given in the second UPR cycle – a 78% acceptance rate.

While the UPR is criticised by some as a convenient means for self-aggrandisement on the part of States, recommendations also allow civil society organisations and activists huge leverage to hold their governments accountable and provoke real change.  Even recommendations that have been ‘noted’ may provide impetus for later implementation in response to public debate or civil society pressure. 

At this UPR, both Recommending States and our government must make clear that the discrimination, violence, abuse, and lack of access to services currently faced by New Zealand’s rainbow communities is unacceptable.  Recommendations at this UPR session have the potential to create real change in the form of legislation, public awareness campaigns, and funding for LGBTI+ support groups and services that allowing our rainbow communities the fundamental rights they deserve. 

Katharine Woolrych is a delegate with the Aotearoa Youth Leadership Institute to the Universal Periodic Review in Geneva.

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MIL-OSI New Zealand: What is the Universal Periodic Review, and why is it important for New Zealand?

Source: Human Rights Commission

On Monday (21 January) Justice Minister Andrew Little will discuss New Zealand’s human rights record over the past four-and-a-half years at the United Nations Human Rights Council in Geneva.

The Minister’s address will be part of the third review of human rights in New Zealand carried out at the council. These reviews are known as a Universal Periodic Review (UPR).

Since 2006, all 193 countries that are UN Member States are subject to a UPR every four and a half years. The UPR is a peer review process. Specific recommendations on actions New Zealand should take are made by individual governments of other states rather than made by the UN or the Human Rights Council as a whole.

The UPR is an opportunity for New Zealand to take stock of how well we are protecting the human rights of people in New Zealand. It will inform the international community about the human rights situation in New Zealand. It also allows the Government to engage with other countries about specified steps it should take to protect and promote the human rights of New Zealanders. The resulting recommendations are likely to form the basis of the New Zealand’s next National Plan of Action on Human Rights.

New Zealand’s  last review was in 2014, when among the 155 recommendations made to New Zealand participating member states highlighted the need to:

  • Consult on,and develop, a comprehensive action plan to target gender-based violence and violence against women;
  • Allocate adequate resources to ensure the full implementation of measures to prevent violence against women and children;
  • Develop a national action plan for women to address issues such as violence against women, pay equality, the situation of Māori and Pacific women and women with disabilities;
  • To take further steps to advance the human rights of indigenous populations and reduce the remaining social differences for, and discrimination against, Maori          
  • To step up efforts to prevent discrimination against members of the Māori and Pasifika communities in the criminal justice system and, in particular, the high rates of incarceration.

As part of the UPR ‘pre-session’ process held in Wellington and Geneva late last year, the Commission and civil society organisations had the opportunity to raise New Zealand human rights issues with diplomatic representatives of UN Member States. As part of the process, the Acting Chief Human Rights Commissioner Paula Tesoriero highlighted a number of significant human rights issues in New Zealand. She said that while progress has been made since the last review, New Zealand still needs to bring aspects of its human rights legislation and policy into line with international obligations. Ms Tesoriero called on the Government to “develop a policy and legal framework in which all our human rights commitments are fully integrated” including “our obligations under the Sustainable Development Goals and the Treaty of Waitangi”.

On Monday, a wide range of human rights issues will be addressed by member states in their dialogue with the New Zealand Government. This dialogue is likely to issues such as family and sexual violence, child poverty, constitutional issues, over incarceration of Māori, systemic discrimination and LGBTQ+ issues.

You can tune into the review on Monday around 9pm here, and you can find the presentations civil society gave at the pre-session here

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