Tēnā koutou katoa. Welcome to our webinar on embedding human rights in the policy making process. So yeah, before we get started, some quick introductions.
My name is Sean Stack and I'm a senior consultant to Alan and Clark in the policy and regulatory practise. I've been at Alan and Clark for just coming up a year now. Prior to joining Alan and Clark, I spent three years working at the Waitangi Tribunal on a range of different teams and a range of different enquiries.
Yes, that's a bit about me and I'll pass over to Stu now. Hi, my name is Stuart Beresford and I'm also a senior consultant here at Alan and Clark. My experience in human rights started when I finished university, when I got a job at the United Nations.
I spent several years working as a legal officer at the International Criminal Tribunal for the former Yugoslavia, primarily on legal aid and detention matters. While I was living overseas, I also spent time at the European Court of Human Rights preparing reports on a range of high profile cases. Upon returning to New Zealand, I worked in the human rights team at the Ministry of Justice here in Wellington, including five years as its manager.
A lot of my time was spent providing advice on the human rights consistency of draft policy and legislation. However, I was also responsible for leading a range of policy projects with human rights implications and was also part of the New Zealand Delegations that presented reports under the Universal Periodic Review, the International Covenant on Civil and Political Rights, as well as the Convention Against Torture. Since joining Alan and Clark, and I've been here since 2015, I've worked on various projects that have benefited and taken advantage of my human rights experience, and that includes regulatory changes associated with the introduction of quarantine free travel that were made as part of the COVID-19 elimination strategy, as well as the reform of Te Ture Whenua Māori, as well as I spent time working on a research project for Amnesty International identifying pressing domestic human rights priorities.
So we do have a poll regarding the extent to which human rights are considered during the early stages of the policy development process, so we'll sort of give you a little while to answer that. While you're answering, I'll read. So the question is, when do you currently consider the impact of policy on human rights? The options are, it tends not to be a consideration at the beginning of the policy process, partway through the development, or towards the end.
So we've got the results starting to come through now, Stu, and it looks like the most popular answer is at the beginning of the policy process. That's good to hear, that's great to hear, it means that people are identifying that the policy has human rights considerations, and as I'll explain later, it will lead to better policy. Yeah, and then we've got a few people saying that they consider the impact of human rights partway through the development of policy.
Do you have any view on why that might be? I would imagine that a lot of that is due to, firstly, the time that they have to prepare the policy, that they might be under a bit of time constraint, and that they're focussing their attention looking at the economic, the financial, the societal considerations, as opposed to human rights. But look, to be honest, the main reason will be the lack of understanding of human rights and the impact that the policy may have on specific rights and freedoms, and I think that lack of understanding is why they can't spot that those human rights considerations are there until they're further down the track, and they're having to go through that impact assessment process, and then they're suddenly realising that there are issues of fairness that they're failing to consider. Yeah, yeah.
So I guess that sort of leads us quite nicely, really, I think, onto the first question, which is what are human rights? Well, it's interesting. Look, this year is the 75th anniversary of the Universal Declaration of Human Rights. Sunday is Human Rights Day, and that is the celebration of the 75th anniversary, the birthday of that instrument.
And that instrument became the most important document of what should be considered the standard for basic equality and human dignity. Human rights matter, and it is important that they are considered throughout the policy development process. Human rights are our basic rights and freedoms that belong to all of us, simply because we are human.
They are inalienable, they're universal. They provide the benchmark for a decent society, embodying key values that we hold highly, such as fairness, dignity, equality and respect. Human rights are important means of protection for all of us, especially those that may face abuse, neglect and isolation.
Most importantly, they give people power. They give a voice that enables us to speak up and challenge poor treatment from public authority. And it is important that human rights are considered throughout the policy process as a result of that.
Yeah. And I think something that a lot of people and myself included find quite challenging is identifying human rights in New Zealand. So what's New Zealand's human rights framework? I'm not surprised that you find it difficult.
While I was at the Ministry of Justice, I often heard concerns about New Zealand's human rights framework, that it was ambiguous, that it was uncertain and that it was confusing. That uncertainty derives in part from the difficulties associated with establishing with precision the scope and effect of what our human rights obligations are, particularly in relation to economic, social and cultural rights. In New Zealand, human rights are addressed in various documents that make up the constitution of our country.
The two main laws in New Zealand that specifically promote and protect human rights are the New Zealand Bill of Rights Act and the Human Rights Act. However, there are a range of other statutes that give effect to specific rights and freedoms, and they include the Electoral Act, the Official Information Act, the Health and Safety and Employment Act, the Health and Disability Commissioners Act, the Privacy Act and the Criminal Procedure Act, which contains many provisions that give effect to the right to a fair trial. In addition, New Zealand has ratified seven of the nine core United Nations human rights treaties and has an obligation to respect the rights and freedoms that are set out in those instruments.
I think it's important to spend a couple of moments, though, just sort of like on those two key laws, the ones that I've mentioned earlier, because those instruments are the ones that policymakers are most likely to encounter when they're developing the policies that they're working on. The first is the Human Rights Act, which makes it unlawful to discriminate on various prohibited grounds. These include sex, marital status, religious belief, ethical belief, colour, race, ethnic and national origin, disability, age, political opinion, employment status, family status and sexual orientation.
These grounds reflect New Zealand's international commitments, but there are some gaps, and I think one glaring gap is language, actually. The Bill of Rights requires government and anyone carrying out a public function to observe a range of civil and political rights that arise from the International Covenant on Civil and Political Rights. These include the right to freedom of expression, the right not to be arbitrarily detained, religious belief, freedom of movement, the right to be free from discrimination.
Those are some of the many rights that are protected in the New Zealand Bill of Rights. All new legislation needs to be examined to make sure that it is consistent with the rights and freedoms in the Bill of Rights Act, and if there are any inconsistencies, then the government is required to provide a justification for the limits placed on those rights. The Attorney-General must report any unjustified limitation on the rights and freedoms set out in the New Zealand Bill of Rights to Parliament when the legislation is introduced.
With all of that said, and you can see how that's quite a lot for someone to keep in their head all the time, what are the benefits of considering human rights in the policy development process? Well, New Zealand as a society expects that human rights will be complied with. At the same time, successive governments have moved to ensure that human rights are given greater importance and greater emphasis in the development of policy. It is actually a Cabinet requirement that human rights implications of policy are identified and articulated, and advice to ministers.
This often occurs at a relatively late stage, which raises a risk that any issues identified will disrupt the policy-making process. However, it is good to hear that many people do consider human rights at an early stage. I think that's important because integrating human rights into the policy development process will help ensure that those policies are responsive to the needs of both communities and government.
Early considerations will generate policies that will ensure objectives are realised by fair means in a fair way. The policies will respect and reflect human rights are more likely to be inclusive, they're more likely to be equitable, robust, durable, and of good quality. Critically, such policies will also be less vulnerable to domestic and international legal challenge.
Of course, consideration of human rights early in the policy development process does not ensure that the policy will be free from limitations of rights and freedoms, but it does make sure that ill-considered policy with its attendant difficulties are less likely. That's a pretty strong list of benefits, isn't it, from an official's point of view, in terms of if you're thinking about needing to justify why you might be wanting to spend time on putting a human rights lens over something. Flowing from that, what are the risks of not getting your consideration of human rights right? I think there are a number of consequences of not embedding human rights into the policy development process.
These aren't limited to just a negative comment by the Attorney-General. They may be negative comments in the media that might actually lead to protests, that might lead to a petition to Parliament to have the policy removed or revoked, but the courts may get involved. I think that is the biggest consequence that you face.
Courts and tribunals must consider human rights when interpreting laws. While they do not have the power to strike down acts of Parliament that are inconsistent with human rights standards, the courts have made declarations that legislation is found to be inconsistent with the New Zealand Bill of Rights. Such declaration is, in addition to similar remedies available through the Human Rights Tribunal with respect to the freedom from discrimination, which is section 19 of the New Zealand Bill of Rights Act, the courts can go actually further with regulations and can rule them invalid in some circumstances, which is quite, as you can imagine, a significant consequence.
And I think if the courts do make a declaration, the New Zealand Bill of Rights Act was changed in the last Parliament. The Attorney-General now must advise Parliament as soon as possible when the courts do make such a declaration. And within six months of the declaration being made, the responsible minister must make a report to Parliament setting out the government's response to the declaration.
That's costly and time-consuming and politically embarrassing. And I think particularly if the declaration involves one of the government's flagship policies. And it actually reminds me of a time when I was working at the Ministry of Justice, I happened to have to go over to the Attorney-General's office to see the attorney about a separate matter.
And while I was there, the attorney asked me about a particular policy because the paper had just come across their desk. And the attorney, the agency had chosen not to take an approach that would impact less on the rights and freedoms, particularly in the area of discrimination. The attorney immediately saw the problem and actually phoned up the minister, which was one of the senior members of cabinet and just basically said, you've got to remove this one provision from the cabinet paper, which the minister agreed to do straight away.
But the minister obviously wasn't very happy with being called out in that way. And it could have been quite easily avoided had the agency sought and listened to the advice that was being provided around the problem. So I do think that ministers don't like to be called out on issues, nor in the local government space, nor will councillors when they're making policies and enacting bylaws.
And they definitely don't want to go through the public process of a court case. So I think that there is really important reasons to just really make sure that human rights are considered during that policy process. To your point about the responsible minister being required to respond to a declaration and time and cost associated with that.
You can see how doing your groundwork really well before advice goes up to the minister or policy is made could come in useful in that type of situation if you are challenged down the line. It's absolutely right. And if the minister has thought through, particularly when there was a limitation on rights around what the justifiable reasons to make that limit are, then it will help with the media, it will help with their colleagues, it will help with explaining the policy to the public.
And probably the stress level of all the staff involved as well. Absolutely. And the thing is that a number of policies do.
If you look at the Ministry of Justice does publish the reports that it produces. Every year, there's between five to seven pieces of legislation that are pinged for being inconsistent with the New Zealand Bill of Rights Act. And many of them are members' bills, which they just don't have the ability to change.
And there will be flagship policies where it's just there is an explanation that you need to, or other considerations that need to be considered for limiting rights. But if you look at the reasons where it's been justifiable, they do set out some quite clear guidance as to the types of issues that they will take into consideration as to why something might be a limit. And this is a good example of that will be in the use of infringement notices because infringement notices impact on the right to be presumed innocent.
And that there's some reasons and clear guidance as to when they are appropriate and when they can be used. Awesome. So, Stu, what is a rights-based approach to policy? I think at this case, I think I would say, look, there is no formal process within government at the moment for embedding human rights into policymaking.
But there are several elements that should be taken into consideration. And these do provide a useful approach for creating an inclusive, equitable, robust, durable, and fair policy. The level of comfort that agencies have and the experience that they have with these elements will differ.
And this is because, look, while many agencies have policies that do impact human rights, and in fact, most agencies, if not all agencies, have policies that do impact human rights, some deal with human rights issues on a daily basis. And I'm talking here, particularly the Ministry of Justice, as well as Health and Education are the three big ones, social welfare being another one, social development being another one. So I think those four, but there will be others that deal with it on a quite regular basis.
But some of the smaller ones will be, such as cultural and heritage, as an example, may only be dealing with human rights in a very limited way and very sporadically. In terms of what a rights-based approach looks like, when developing this webinar, there are four elements to that approach. The first is that policymakers need to understand the scope and effect of the rights that are by the proposals, the policies that they are proposing, and the extent to which they are being realised currently.
There is an extra element with regard to economic, social and cultural rights, and this is because they only require progressive implementation. And with respect to those rights, decision-makers need to understand the state's capacity to realise the rights, and how they might be more fully realised within the resources available. I don't mean to interrupt you, but what's progressive implementation? So it means that the right to health doesn't mean that it can be a slow, progressive movement towards fully respecting the right to health, that there will be, because of limited resources available, whether that is through money, whether it's through a lack of health providers, whether it's due to staff, that it's just not possible to provide everyone within a country with the right to health fully.
Thanks for clarifying that. In this context, training plays a very crucial role. Departments need to ensure that officials, especially those primarily responsible for policy, are provided with the appropriate levels of training and development in relation to human rights.
For instance, new staff should be inducted, or the induction of new staff should include a module around human rights, particularly policy staff. It's also suggested that departments have access and use guidance materials that is available that identifies the benefits of human rights, and that outlines the domestic and international human rights instruments that are relevant to their work, as well as sets out human rights that will be implemented into their policy-making process. It used to be that the Ministry of Justice would run training and work with agencies to uplift them around their human rights capability.
That moved towards taking an approach that was up to the agencies themselves to upskill. But the Ministry of Justice does have guidance material on its website that does talk about the obligations that exist under the Human Rights Act, the Bill of Rights Act, as well as the seven treaties that New Zealand has signed up to. I would encourage people to look through that guidance material.
The Human Rights Commission is another source of useful material in this regard. The next element of the human rights approach is that policymakers need to identify options that give effect to those rights. This requires them to think about the scope of the policy that's being developed, whether the objectives address the specificities of the effective groups, and are there any resource constraints and competing priorities that need to be taken into consideration.
As I've said, this doesn't mean that other considerations don't have a place, that they shouldn't be taken into account. There may be economic, financial, moral, or societal considerations that drive the need for the policy. Human rights need to be considered alongside those other considerations during that development process.
The other one is that even though human rights can be limited, there shouldn't be retrogressive measures taken unless there's clear justification for doing so. Whether a limitation is reasonable will depend on a range of factors. That includes the significance of the proposal, the objective of the proposal, the interests that a particular right is addressing, and the extent to which the proposal limits the rights and the effectiveness of the measures in achieving that objective.
I mean, again, in my former role, we'd often see proposals that, yes, the objective was quite clear. It might be to deal with a particular criminal offending, but the measures that were being proposed didn't actually relate to that objective, that there was not that rational connection between what was being proposed and the objective that it was trying to achieve. And that is key, that there is that rational and proportionate objective.
And I think, look, that one of the things that policymakers could, that would be useful for policymakers to do is to do a human rights impact assessment as the new policy begins to take shape. And look, we know what impact assessments are. We do it with regard to RISs and with new policies.
The Privacy Commissioner encourages agencies to do a privacy impact assessment with regard to new policies, and that would be just doing it, one, not just for privacy, which is a right on itself, but doing one for all human rights. And this would identify how the proposed policy initiative might enhance human rights, for instance, by reducing poverty and economic marginalisation of particular groups. And it might also identify what areas may be inconsistent with human rights, what areas might be discriminatory, for instance.
A good example of this is, look, while Alan and Clarko were actually working with Te Pounu Kokiri on the Te Ture Whenua Māori reforms, we went and did a human rights impact assessment of the proposals that we were putting forward, and they helped us, firstly, identify the proposals that supported indigenous rights and the extent to which they would enhance those rights. And actually, firstly, that became quite useful for the Minister when discussing with her extended Māori caucus the importance of taking those rights forward. But it was also important for engagement with constituents, with stakeholders around the need for these rights.
But one of the other things was that when we did this exercise, it actually highlighted an issue with one of the proposals. We identified a proposal that was not going to be consistent with the New Zealand Bill of Rights, and we struggled to justify it, and to explain why it could be consistent. As a result, the Minister decided to withdraw that proposal.
And we identified the issue through that process. And I think you've actually just answered a question that we just had come through, which is what is done once a human rights breach is identified. And that's a perfect example, really, isn't it? That the Minister may decide to pull that particular proposal.
Look, if the Minister chooses not to pull the proposal, especially when it comes to legislation, Parliament is sovereign, and it can enact laws that are inconsistent with the New Zealand Bill of Rights Act. But if it does, it does face that public scrutiny, that negative media coverage. And as I said, there are several cases when that happens.
But one of the things I would add, though, is that the Section 7 report, that occurs when the bill is introduced, but policy development still continues after a bill is introduced, and it continues during the select committee process. And look, there have been many times where policies are changed, and as a result of that change, the policy's impact on human rights also changes, sometimes for the better, but also sometimes for the worse. And I do think that your consideration of human rights issues needs to take place throughout the process, not just during the initial policy development stage, and when the bill is being developed, but also as it goes through the parliamentary stages.
Because again, as I said, it is possible for the judiciary to make negative comments about a bill, and those negative comments can have quite significant implications for the way that that policy is received by the public and its legitimacy. The next element is, and it touches on the point that you raised earlier, the question that you got, is that policy makers need to actively engage with civil society during the policy development process, in particular with affected communities. And that could be co-designing with affected groups, or it could be just other forms of engagement.
And that engagement should occur again at all stages during the process, not just once the policy's developed and you're taking the legislation to Parliament, but it should occur during that policy development stage, during the select committee process, and also during the implementation stage as well. One really good example was, look, we worked with the Ministry of Justice on the conversion therapy legislation that was passed recently. And we observed what they did with regard to designing the legislation.
They worked really closely with the affected communities, with representative organisations, with representative groups, as well as survivors of conversion therapy. And that enabled them to design the legislation in a way that was fair, robust, durable, that was inclusive of all people that potentially could be impacted. And they also kept them informed during that process.
Now, they didn't necessarily agree with all the decisions that Cabinet made, but they did feel that they were, you know, that they had that ability to contribute to work and to express their concerns around human rights with that policy and ensured that the resulting proposal, Sean, were good policy. And I think that that is a good example where that happens. The last element that I think is important is that policy makers need to think about how the policy is going to be implemented and then evaluated.
For instance, they need to ensure that there's sufficient and maintainable resources will be allocated to the implementation of that policy, and that the measures introduced will actually remove the perceived gaps that have been identified. So if the measure is to, for instance, address an aspect of equity, that actually achieves that and has been achieving that. And if it's not, then you need to go back and start rethinking and tweaking the policy to ensure that it does.
One approach with this, which I think is quite a good one, which I know some agencies do, and that is to establish networks of officials that are either within or between agencies that can provide support and cooperation when it comes to embedding those human rights principles within the policy process. And that such a network could be extremely useful, particularly for local government, I think, because, you know, a lot of local government teams lack resources to have robust decisions and discussions about these matters. I mean, I recently spoke to a policy advisor from one particular council, and that was the team, she was the team.
And so, you know, it's about sharing ideas. And I think that there's an opportunity there when it comes to, what is it, enhancing and protecting human rights. Yeah, and yeah, I can definitely, I think in the case of local government in particular, you can see how those networks would be hugely, hugely useful.
So we've got another poll here, and I'm conscious that we're sort of running short on time. We've got a few questions that we'd like to get to. So we've got another poll, and this one asks, which of the four elements do you consider to be, do you find the most challenging that we've just discussed? So the options are understanding the scope, identifying the options, actively engaging or considering evaluation.
So we'll just give a little bit to, so understanding the scope has been the one that someone's found the most challenging. Do you have anything to say about that? Look, and as I said, I'm not surprised. And I think that that is in part due to the fact that, that guidance that central government was providing or key agencies were providing, that it shifted the onus is now on agencies themselves to develop that understanding.
And not, and to be quite honest and blunt, not every agency has the resources to do that. And I do think, look, that, but there is guidance material there. The Human Rights Commission does, you know, is more than happy to work with agencies to, you know, uplift them and upskill them in some areas.
And I also think that, you know, there is material around that can support that. How does an agency go about, how does someone reach out to the Human Rights Commission if they want that? Well, just call them up, send them an email. The Privacy Commission as well, you know, that comes to the rights privacy is, has a, I won't call it a hot desk, but they do have a generic email that you can send enquiries to, that will, they will be able to respond and do respond.
You know, when people do have, I know that Michael Webster, the current Privacy Commissioner does, is more than happy to work with agencies to lift them when it comes to their right to privacy. Yeah, I think that's really helpful for people to know, because we did have, for context, we had a question around sort of how much knowledge of human rights law do people need who are not legal experts required to be able to prepare policy? Sort of because, like the person says, the problem is that not everyone's lawyers, but it sounds like reaching out to those sort of organisations could be really useful. Yeah, and I think that, and like when we were talking at this, you know, while we're waiting for it to come on in the air, and you asked me, you know, what were the difficulties with regards to some rights? And like, you know, like most people understand what like the right to torture looks like, they understand what freedom of movement means, they understand what freedom of religion means.
But when it comes to issues such as discrimination, you know, people are a lot unclear, they get the broader concepts, but they're unclear about what type of matter could be considered to be discriminatory. And when it comes to some of those fair trial rights as well, yeah, you know, while it's, you know, the right to a lawyer is pretty clear cut, when somebody's being charged, do you have a right, you know, prior to being charged? Do you have a, you know, what is, what are your rights in other contexts. And I do think that there are some areas where, you know, look, policymakers would benefit by, you know, reaching out to those key organisations, you know, primarily the Human Rights Commission, but also like the Office of the Ombudsman, you know, they do have a role with regard to, you know, particularly detention and some of those matters around just making sure that the policies that you have in place are, that you're working on are consistent.
Obviously, you know, these are external agencies, and there will be confidentiality issues. But, you know, look, I would encourage you just to seek advice from Crown law or even primarily, and then, you know, the Ministry of Justice. Yeah, because I mean, it sounds sort of like it's not necessarily that you have to be a lawyer to understand this stuff.
It's just that you sort of have to be exposed to it enough that you have an idea of where all these different things to pull from. Yeah, so hopefully that answers that question, because I think that's a very common one. I think we're sort of running very low on time now.
But we have finished the formal part of the webinar. But we do have, I think we've got a few minutes for some questions. So the first one is, one question that has been raised is how are you convinced senior leadership of the need to take human rights considerations into account during the policy making process? You know, look, chief executives have a general obligation to ensure that their departments provide high quality advice on a range of policy issues.
And to be good quality advice, you know, to be good quality, the advice needs to take into account the relevant legal obligations at the early stages of the policy making process. And human rights have an obligation to put appropriate arrangements in place to provide, therefore, the integration of international and domestic human rights norms into that process. And I do think that, you know, look, they do have that obligation.
And I think that, you know, you just need to remind them of that and also remind them that if they have, you know, do put in place, you know, do think about human rights, then what comes out the other end will be of better quality. Yeah, awesome. And sort of there's one here that I'm going to ask myself, because I'd quite like a chance to get to talk as well.
But so the question here is when taking a rights approach to policy, should we refer to Te Tiriti or Waitangi? And I'd say, well, absolutely. But I'd probably say address Te Tiriti rather than refer to. And I think the sort of the hook for bringing Te Tiriti and human rights together is that the Waitangi Tribunal has found that the Crown's obligation of active protection extends to the protection of Māori people's human rights.
The Tribunal has also found that when exercising its kawanatanga, the Crown needs to be fully informed about and consider the likely or unintended consequences of its actions. So I think from that, it's sort of, well, it's a logical inference, really, that when it's exercising its kawanatanga, the Crown needs to be fully informed about and consider the likely consequences of its actions on Māori people's human rights. And then you can see from that how applying the four elements approach that Stu has talked about, you can use that same approach when you're thinking about Te Tiriti and human rights.
And I guess I'd add from my experience working at the Tribunal is that with the fourth element, the evaluation, that your evaluator in the context of Te Tiriti might be the Waitangi Tribunal. And you want to make sure that all of the stuff that Stu talked about is really well documented, that you've clearly demonstrated and documented right from the start that you understood the scope and effect of the proposed policy, that you'd engaged with Māori people, that you'd identified options to give effect to their rights. And I think if you're doing all of that type of stuff, then you can keep yourself pretty safe and produce reasonably good policy.
And we're very low on time, but I could go on for hours about that. And if you do want to have a coffee and talk through how to find all of this stuff in Tribunal reports and stuff, please do hit me up. But before we finish today, Stu, are there any final comments that you'd like to make? Just the only comment that I would have is, look, don't be scared of embedding human rights into policy, because it will ensure that the policy is more durable, more equitable, more robust, and absolutely fair, and more likely to be accepted by both ministers, the government and society.
But look, I just wanted to reiterate that I've really enjoyed the webinar today, and I want to thank you all for taking the time to listen to me and Sean. Yeah, thank you, and I hope you all have a great day.
