10 September 2004
Submission to the Government Administration Select Committee
Identity (Citizenship and Travel Documents) Bill
1. This submission is made jointly by YouthLaw Tino Rangatiratanga Taitamariki („YouthLaw‟) and Action for Children and Youth Aotearoa (ACYA).
2. YouthLaw is an Auckland-based national community law centre vested under the Legal Services Act 2000 that provides a free legal service to children and young people throughout Aotearoa New Zealand. ACYA is a national coalition of organisations, families and individuals, which seeks to further the status and welfare of children and young people in Aotearoa New Zealand through the implementation of the United Nations Convention on the Rights of the Child. ACYA co-ordinated and presented the 2003 NGO Report on New Zealand‟s implementation of UNCROC to the UN Committee on the Rights of the Child in Geneva.
3. This submission is focussed primarily on one purposive aspect of this legislation, namely the intention of the Minister of Internal Affairs to introduce a supplementary order paper to the Bill to restrict citizenship by
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birth to the children of New Zealand citizens and residents1. Currently section 6(1) of the Citizenship Act 1977 extends automatic citizenship to all children born in New Zealand, bar very limited exceptions2.
4. We consider this proposal, if implemented into statutory law, would constitute a clear breach of Article 7 of UNCROC. The Article places an obligation on the state to preserve the right of a child to a national identity and to ensure the implementation of this right in circumstances where that child would otherwise be stateless. The Article states:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
5. We refer to the weight given to the principles of UNCROC by the Courts, the leading case being Tavita v Minister of Immigration [1994] NZFLR 97. In determining the application of Article 9(1) of UNCROC, the Court of Appeal held:
If and when it became necessary to determine whether, when an Act is silent to relevant consideration, international obligations were required to be taken into account, it would be necessary to bear in mind that since New Zealand’s accession to the Optional Protocol, the United Nations Human Rights Committee was in a sense part of New Zealand’s judicial structure, in that
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First Reading Speech to Parliament House, 29 July 2004 The exceptions being those children whose parents are subject to diplomatic immunity and privileges and do not hold New Zealand citizenship [section 6(2)(a)] and those children born to enemy aliens in a place under occupation by the enemy [section 6(2)(b)].
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individual’s subject to New Zealand’s jurisdiction have direct rights of recourse to it. A failure to give effect to international instruments to which New Zealand was a party could attract criticism.
6. In the context of this submission, the most significant principle contained within Article 7 is the “right [of the child] to acquire a nationality”. This right is adopted directly from Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR). The application of Article 24(3) of ICCPR to children has drawn specific comment from the UN Human Rights Committee: “States are required to adopt every appropriate measure, both internally and in co-operation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or out of stateless parents or based on the nationality status of one or both of the parents.”3 7. We submit that the Minister‟s proposal acts to discriminate against those children born in New Zealand to non-resident parents, ostensibly on the basis of their parents‟ nationality. The proposal is fixated on the immigration status of the child‟s parents without reciprocal consideration of the rights of the child to acquire a national identity and to have that identity preserved. We further note that Article 2 of UNCROC requires States Parties to ensure and respect the right of the child to be free from discrimination, including discrimination on the basis of their parents national or ethnic origin. In addition section 21(1)(g) of the Human Rights Act 1993 prohibits discrimination on the basis of ethnic or national origins, which includes nationality and citizenship.
8. By way of analogy we refer to the discrimination suffered by Chinese migrants, who up until 1951 were denied naturalisation on the basis of their nationality. In 2002, the Government apologised for this discrimination, with the Prime Minister emphasising the importance of multi-ethnic diversity in
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Human Rights Committee, General Comment 17, HRI/GEN/1, Rev.2, p, 25
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modern New Zealand society. We submit that this proposal runs against the grain of that position, a position that reflects the current provisions of section 6 of the Citizenship Act 1977 which accords New Zealand born children the automatic right of citizenship regardless of their parents national origins.
9. We are also concerned that the proposal is based on a prejudicial assumption that all non-resident parents of New Zealand-born children have an inherently devious motivation in such circumstances. We consider this to be an unfair stigmatisation which clouds what should be the primary focus of Government legislation concerning New Zealand-born children, namely the welfare and best interests of the child. We refer to the Minister‟s address to the House of 29 July 2004: “Some people come to New Zealand on temporary permits solely to give birth so that their New Zealand-born children are citizens. Under current law, these children are entitled to access publicly funded services such as health care and education. Restricting citizenship by birth will ensure that citizenship and its benefits, are limited to people who have a genuine and ongoing link to New Zealand.”
10. In addition to the failure of the proposal to consider the rights of the child to identity and nationality, we are concerned that this statement indicates a lack of consideration for the welfare, or well-being, of those children born in New Zealand to non-resident parents. One can assume that the criterion for displaying a “genuine and ongoing link to New Zealand” will be most likely be proportionate to the economic status of the parents concerned. It will be the children of poor immigrants from poor countries who will suffer from this policy. UNICEF have stated the following in relation to this issue: “The issue of children’s nationality is particularly difficult, given the sensitivity of all nations about sovereignty and citizenship…and the ever-
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increasing anxiety of richer nations to exclude or deny citizenship to poor people from other nations.”4 11. We note that the Bill‟s Explanatory Note states that the Bill intends to amend the citizenship by descent and deprivation of citizenship provisions to enable to New Zealand to accede to the 1961 UN Convention on the Reduction of Statelessness (UNCRS). We accordingly support the amendments to clause 7 to provide for citizenship by descent for children of New Zealand citizens in circumstances where those children would otherwise be stateless. We further support the intention of clause 6 of the Bill to extend citizenship by birth to Tokelauan children born in Samoa as a result of medical necessity. 12. However, we consider that the Bill‟s expressed intention to provide greater compliance with the UNCRS is ironic, given that the UNCRS requires that children should acquire the nationality of the State in which they were born if they are not granted nationality by any other State (Article 1(a)). The proposal to deny citizenship to New Zealand citizenship to New Zealand born children of non-residents appears to be contrary to this requirement. The current law, under section 6(3) of the Citizenship 1977, is largely consistent with the UNCRS in this respect, stating:
Notwithstanding subsection (2) of this section, every person born in New Zealand on or after the 1st day of January 1978 shall be a New Zealand citizen by birth if he would otherwise be stateless.
13. In summary, we submit that any move to deny citizenship to New Zealandborn children of non-resident parents would likely constitute a breach of a number of New Zealand‟s international obligations, and in particular New Zealand‟s obligations under UNCROC. We accordingly oppose such a move and urge that the Committee give serious consideration to the international law implications of the Minister‟s proposal.
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Hodgkin R, Newell P, Implementation Handbook for the Convention on the Rights of the Child, p 102, UNICEF 1998
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14. Thank you for your consideration of these submissions.
John Hancock Solicitor YouthLaw Tino Rangatiratanga Taitamariki ACYA Committee Member
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