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					  Report on British Council’s Commonwealth National
 Human Rights Commission Staff Exchange Programme
                           II


South African Human Rights Commission and New Zealand Human Rights
                     Commission, January 2007




       Prepared by Judith Cohen, Deputy Director, Parliamentary Liaison and
                          Legislation Monitoring, SAHRC




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007   1
Index



Introduction                                                                              3


Summary of meetings and engagements                                                       6


Annexure 1
      Itinerary                                                                           26

Annexure 2
      Documents and Books received                                                        28

Annexure 3
      Terms of Reference, Transgender Inquiry                                             30




                            About the Exchange Programme
         The Commonwealth National Human Rights Commissions Staff Attachment is a
           British Council programme where staff from Commonwealth Human Rights
         Commissions/Institutions participate in short work attachments in Commonwealth
                                             NHRC‘s.

          The Staff Exchange Programme is aimed at enabling Commissions to exchange
            good practice and build capacity. This programme aims to benefit both the
         sending Commission and the receiving Commission, and also to contribute to the
          personal development of the participating staff member by developing skills and
                                   knowledge of specific areas.

                     The British Council offers grants to help fund the visiting staff.




                                      Thank you
     I wish to thank the New Zealand Human Rights Commission and all of their
  commissioners and staff for being superb hosts throughout the visit and ensuring that
        the staff exchange was a really worthwhile and enriching experience.

 I also wish to thank the British Council for their generous funding which made the staff
                                    exchange possible.


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                2
Introduction

Parliamentary advocacy and lobbying is relatively new in South Africa given our past. It
is only since 1994 that we have had a democratically elected parliament that processes
laws in terms of our constitutional dispensation. There is therefore no culture or
experience of interacting with parliament and law making processes. As an institution
supporting democracy the South African Human Rights Commission (SAHRC) should
play a lead role in participating in legislation making processes; and, educating and
encouraging lobbying and advocacy in this regard.

The Staff Exchange Programme was thus undertaken in order to observe and learn how
another national human rights institution (NHRI) that operates within an established
democracy does this work.

Background information
The SAHRC Parliamentary Unit is small - consisting of a parliamentary officer, a recently
appointed researcher (November 2006) and an intern. Recently the Unit has been
moved from the Research Department into the Office of the CEO. This move signifies
recognition within the Commission of the key strategic policy making nature of the Units‘
work.

The Commission will expand the Unit in the coming 2007/8 financial year and additional
researchers, interns and administrative support staff will be appointed. The work of the
Unit will include its current parliamentary liaison and legislation monitoring as well as
work at a provincial parliamentary level and an international treaty body level.

Aims and objectives of the visit
The aims and objectives of the visit were to:
    Observe and learn how another NHRI integrates parliamentary liaison and
       legislation monitoring work into their everyday activities; the manner in which
       they go about doing this work, and the resources that are required to do this
       work.
    Explore methods of ensuring the participation of commissioners and staff in the
       work of the Unit in order that positions arrived at are representative of thorough
       consultation within the commission.
    To learn about interaction with regional and international human rights structures
       and treaty bodies.

Description of visit / attachment
The visit took place between 12 and 22 January 2007. The anticipated engagements
included amongst others:
             Meet and share knowledge with staff and commissioners of the NZHRC
               who are engaged with submission drafting.
             Meet, share knowledge and discuss strategies with those engaged in
               legislative advocacy and lobbying
             Meet with relevant civil society role-players who are engaged with
               advocacy and lobbying in the law making process
             Meet with relevant parliamentary contacts




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007        3
                 Observe and find out how the NZHRC incorporates its international work
                  into the commissions programme.
                 Meet with the Children's Commission to discuss issues that are currently
                  relevant in South Africa related to our Children's Bill, Child Justice Bill and
                  corporal punishment (in particular, banning corporal punishment in the
                  home)

Some key lessons learnt
a)      A lot in common
It was with surprise that during meetings and discussions it became clear that there is a
great amount of similarity in the human rights issues (albeit that the contexts are vastly
different) that are being dealt with in New Zealand and South Africa. Some of the issues
around which there was similarity included: the prohibition of corporal punishment in the
home; mental health and the efficacy of mental health review boards and tribunals in
guaranteeing rights of persons detained against their will in mental institutions;
discrimination against LGBTI persons, school violence, immigration, amongst others.

b)      International work
International work is time consuming, lengthy and slow and demands high levels of skill
and expertise.

There is a need to clearly determine and outline the international work that will be done.
This needs to be placed in a strategic document.

A decision must be made concerning regional vs international obligations, involvement
and work.

c)       Submission writing
A commission cannot comment on every piece of policy and draft legislation.
Commissions need to be strategic and have set guidelines on identifying those pieces of
legislation that need to be taken up and commented on. A policy document setting out
the manner in which a determination ought to be made as to whether the commission
will draft a submission should be in place. It is important to set out the manner in which
submission-drafting work must be conducted in a procedures document.

Become involved in legislation as early as possible. This leads to most impact.

Legal policy work and submission writing is a specialist area and it is not easy to find
people with the requisite skills. There is a definite style of thinking and writing that is
needed.

Public participation and consultation are time consuming processes. The maintenance of
good networks and regular consultation with relevant role-players is important.

Develop good internal systems that support the submission writing process.

Have a good complaints database that can be used to feed into the submission writing
process.

Develop a relationship plan, which highlights the areas of expertise of all staff members.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                4
Commissioners should be used more for lobbying and external engagements. Key
message sheets with short summaries of issues could be prepared for commissioners
and circulated on a regular basis in order that lobbying and networking opportunities are
taken advantage off.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007        5
Summary of meetings and engagements

Monday, 15 January 2007, Auckland



1.       Welcome
The staff of the Auckland office welcomed me with a traditional Maori powhiri (formal
welcome) or whakatau (welcome) accompanied by a welcome in Maori by the Chief
Commissioner Rosslyn Noonan. Staff sung a welcome in Maori and a tea followed this.
It is traditional that after the powhiri, food (kai) is served as part of the welcome. I was
also introduced to the traditional Maori greeting known as Hongi which involves the
touching of noses for 5 seconds and sharing a breath which symbolizes that we are
meeting in peace. During the tea that followed I was introduced to the staff at the office.



2.       An understanding of the relationship between the New Zealand Human
         Rights Commission and Parliament
                                              Rosslyn Noonan, Chief Commissioner

During this meeting, Rosslyn Noonan introduced me to the Human Rights Act 1993 and
subsequent amendments in 2001 which gave rise to the commission which currently
exists; the New Zealand Action Plan for Human Rights, and the Human Rights in New
Zealand Today Report which informs the strategic direction of the commission as set out
in the commissions statement of intent. The statement of intent prioritizes the work of the
commission.

The commission has developed a human rights approach to submission making which
looks at the human rights involved and identifies the interest groups affected and their
rights.

Interaction with parliament and tactics to influence legislation
     With the review of the Immigration Act the commission decided not to comment
        directly. Instead it developed a commentary that became a community resource,
        which enabled individuals to participate in the process and make submissions.
     The commission has had confidential briefings with government ministers and
        parliamentary committees to discuss concerns with legislation.
     The commission has requested briefings with committees about legislation.
     The commission is careful in its interactions with government and parliament to
        maintain its independent status.
     The commission is mindful that it is not the default opposition.



The Human Rights Amendment Act 2001 made several significant changes to the
functions and powers of the Commission. A new section 5 of the principal Act restates,
with changes, the functions and powers of the Commission. Some of the key changes to
the Commission's functions and powers include –



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007           6
           the addition of new primary functions of the Commission (to advocate and
            promote respect for and appreciation of human rights in New Zealand society,
            and to encourage the maintenance and development of harmonious relations
            between individuals and the diverse groups in New Zealand society);
           the addition of the new function of advocating and promoting, by education and
            publicity, respect for, and observance of, human rights; the addition of the new
            function of making public statements promoting an understanding of, and
            compliance with, the New Zealand Bill of Rights Act 1990;
           adding a requirement to develop a national plan of action, in consultation with
            interested parties, for the promotion and protection of human rights in New
            Zealand;
           the addition of a new function to promote, by research, education and discussion,
            a better understanding of the human rights dimensions of the Treaty of Waitangi
            and their relationship with domestic and international human rights law;
           conferring a power to bring civil proceedings for any breach of new Part 1A or
            Part II of the principal Act arising out of any inquiry conducted by the
            Commission;
           conferring a power to apply to a court or tribunal to be appointed as intervener or
            as counsel, assisting the Court or Tribunal, if this will facilitate the performance of
            the Commission's functions relating to advocacy for, or promotion of, human
            rights.

       The Human Rights Amendment Act 2001 also merged the Office of the Race
       Relations Conciliator with the Human Rights Commission and new section 16 of the
       principal Act sets out the functions of the new Race Relations Commissioner.
       Provision has also been made for the appointment of a full-time Equal Opportunities
       Commissioner1.



3.          Transgender Inquiry and ensuring public participation in the submission
            drafting process
                                                     Jack Byrne, Senior Policy Analyst

The “Inquiry into the Accessibility of Public Land Transport for Disabled People” was the
commissions‘ first public inquiry. The Transgender Inquiry will be the commissions‘
second inquiry. (The terms of reference are attached as an annexure.)

The process that is followed in conducting these inquiries bears a number of similarities
to the manner in which the SAHRC carries out its public hearings and inquiry processes.
However, in general, the transgender inquiry process appears to take place at a slower
pace with more interactions with the relevant role-players.

The Transgender Inquiry is spread over a 12-month period. The inquiry was initiated out
of an increasing awareness by the commission of discrimination that is being
experienced by transgender people. The process has been transparent and there has
been ongoing consultation with transgender persons about the process. Briefings were
held in 4 cities where transgender persons spoke of their experiences of discrimination.
A total of 127 submissions have been received. These submissions will be collated and
1
    http://www.hrc.co.nz/index.php?p=308



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                  7
synthesized and a draft working document will be produced for further comment by
interested parties. It is anticipated that a final report will be produced by September 2007


4.       The Legislation and Policy Evaluation Group (LPEG) mechanism and
         processes
                                                   Jessica Ngatai, Policy Analyst

The NZHRC processes potential legislation and policy for monitoring through their LPEG
mechanism which
    provides general oversight and coordination of legislation and policy monitoring
      work within the NZHRC
    acts as a filtering mechanism to determine which pieces of legislation and policy
      will be worked on by the commission
    allocates staff and commissioners to work on policy and legislation
    tracks the legislative and policy drafting process
    follows up on internal deadlines for the drafting of submissions

The commission is in the process of developing criteria for determining which pieces of
legislation and policy the commission will comment on.

The LPEG group meets each Monday. One person is responsible for scanning for new
policy and legislation and bringing these to the meeting. The legislation is then allocated
to a policy analyst who assesses the draft legislation against criteria in order to
determine whether the commission should deal with it or not. Also, a lead commissioner
is assigned to the draft legislation. The commission has an internal document, which
sets out the process for submission writing within the commission.

LPEG produces quarterly reports, which are distributed to everyone in the commission.
On average 20 submissions are drafted per quarter. These may be formal submissions
or simply a letter making a small point on a particular aspect of the draft legislation.
Some submissions are joint submissions with other commissions. Submissions are sent
to commissioners quarterly meetings to be received and endorsed. Submissions are
then sent to parliament. Only at the oral submission making stage is it released as a
public document along with a media statement. Sometimes, a brief sheet of talking
points are produced and distributed within the commission in order to assist
commissioners to lobby ministers and politicians.

It is acknowledged that there is a greater need to monitor what happens after the
submission has been submitted and the impact that the submission has made on the
drafting process.

The commission also does briefings on particular topics to parliamentary committees.
The commission is either invited by parliament or invite themselves to conduct a briefing.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007           8
Tuesday, 16 January 2007, Auckland


5.       Integration of legislative developments into education and awareness
         raising work
                                     Senior Advisor Human Rights and Race Relations,
                                                                       Dr Jill Chrisp
                                                                                 and
                                                                   Marama Davidson

Marama works closely on education issues through a Youth Participation Project. This
project works closely with an organization called ACYU who drafted the NGO shadow
report to New Zealand‘s 2003 Convention on the Rights of the Child (CRC) report. The
organization is already preparing for drafting the 2009 CRC shadow report. Other
organizations that are active in New Zealand with drafting submissions on policy and law
are Save the Children, Unicef and Youth Law.

Relationships with NGO’s
In Marama‘s experiences it is easier as an independent body to work with NGO's than
with government. However, there is a need for the constant management of the
relationship. This includes at times managing jealousy of the commission and the
position that it occupies. The commission needs to ensure that within these relationships
expectations of the commission remain realistic and that promises are not made to
NGO‘s that cannot be fulfilled.

A copy of the SAHRCs Right to Basic Education Report was presented to Jill and she
was informed briefly about various aspects of the SAHRC inquiry into the Right to Basic
Education.

Issues of social fragmentation and social dislocation were discussed in terms of how this
impacts on the realization of the right to education. Jill is involved in a project called
"Building human rights communities through schools". The project combines a
community development approach with a human rights approach to education. The
project has a number of partners. There are other examples of such projects around the
world such as the Irish project called Liftoff, which supports teachers.

The right to free education and the payment of school fees in South Africa was
discussed. Jill shared how in NZ although education is compulsory and free that there
are costs associated with particular subjects that makes choosing these subjects
prohibitive or unattractive for learners whose parents cannot afford the costs. Such costs
may include: materials, trips, and field trips. Such debates demonstrate how whilst there
is fulfilment of the core provisions to receiving education that some children can be
excluded on the basis of socio economic status from choosing certain subjects.

Monitoring of recommendations and follow up
Discussions were held on the extent of follow up that is needed on commission‘s inquiry
reports. There was a sense that this is an area where more and better work could be
done. Some of the challenges included determining the extent, depth and amount of
time and resources that should be allocated to this follow up. It is also not clear when it
can be decided that follow up is completed.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007          9
    6.       Treaty of Waitangi Training session
                                                                    Commissioner Meremeri Penfold

Merimeri Penfold, a commissioner from the Wellington office was visiting the Auckland
office and facilitating a train-the-trainers workshop in order to equip commission staff
with the necessary training skills and knowledge on conducting a workshop with the
public and role-players on human rights and the Treaty of Waitangi. The purpose of the
workshop was to lay a basis within the treaty for an appreciation and recognition of
human rights broadly in New Zealand. The Treaty in essence is one of the founding
documents of New Zealand. Another important document is the Declaration of
Independence that was entered into in 1835 prior to the Treaty of Waitangi being
concluded in 1840. The workshops are carried out in terms of the commissions‘ duties
that are contained in the 2001 amendments to the Human Rights Commission Act. In
terms thereof the Commission has a specific responsibility to promote the Treaty.

There was an opportunity to sit in on the training sessions for approximately a half hour.
The Declaration of Independence of 1835 was being discussed. Key discussion points
included:
     During this period the difference between traditional authority and authority since
       1840 was explored. There is a clear sense that traditional authority promotes
       rights and responsibilities whereas crown authority only emphasizes rights. The
       traditional authority for example allows Maoris to collect scallops on the
       seashore. In their own traditional areas they are entitled to collect as many
       scallops as they wish, there is no limit. However, there is an understanding that a
       Maori will only collect enough that is needed to satisfy his or her needs and that
       enough will be left behind for future collecting and future generations. (New
       Zealand is yet to consider and debate customary commercial take).
     Participants in the training session explored the responsibilities of citizenship and
       how this could be workshopped with community participants. Many of the
       traditional responsibilities were mentioned such as: obey the law; participate in
       law reform; pay taxes; look after the environment; etc. Participants of Maori
       background mentioned traditional Maori responsibilities of keeping traditions and
       culture alive.
     Icons that connect people to their identity were also discussed
     Article 3 of the Declaration was read by participants and discussed. This article in
       essence guarantees the right to belong in New Zealand.
     The difference between a declaration and a treaty was considered as well as the
       possible reasons of the British colonialists in ensuring that the Declaration was
       made.


The Human Rights Amendment Act charged the Commission with promoting better
understanding of the human rights dimensions of the Treaty of Waitangi.

Under the Human Rights Amendment Act 2001, the primary functions of the Human
Rights Commission are –

(a) to advocate and promote respect for, and an understanding and appreciation of,
human rights in New Zealand society; and


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007               10
(b) to encourage the maintenance and development of harmonious relations between
individuals and among the diverse groups in New Zealand society.

To help achieve these primary functions, the Human Rights Commission will:
(a) promote by research, education, and discussion a better understanding of the human
rights dimensions of the Treaty of Waitangi and their relationship with domestic and
international human rights law.



7.       Strategic Policy Interventions
                                                                Joanna Collinge, Executive Director

Joanna was interested to hear about the SAHRC parliamentary unit; its history; its
composition; the reasons for why it is positioned where it is in the commission; and, the
future plans for the Unit. Based on this information she provided information about the
NZHRC, advice and possible suggestions.

The high-risk nature of policy and strategic work was discussed. This impacts on the
manner in which the work is done and where the Unit is positioned within the
commission. Also, given the high-risk nature of the work, sufficient resources must be
provided for this work.

The NZHRC submission writing process works well especially since the introduction of
the LPEG process (Legislation and Policy Evaluation Group). A challenge that has had
to be addressed is spending too much time making a determination on whether to
intervene in the submission making process or not. This could, in some instances, lead
to enormous amounts of work being done without any demonstrable output. The
commission has over time become comfortable in the knowledge that it cannot comment
on every piece of legislation and policy and that it can say no.

The commission is excited with a new model of intervening in legislative drafting that it
has developed recently with the Immigration law review. The commission has developed
a document that seeks to highlight the human rights concerns and the human rights
issues without providing concrete answers to these concerns. In other words, the
commission has created a resource for communities that is placed on its Internet
website.

The commission is also staring to explore different ways of intervening in the legislative
process. It has been recognized that it is not always necessary to draft a formal
submission. In some instances, a letter or a phone call to an appropriately placed official
or politician may be appropriate.

The New Zealand Action Plan for Human Rights (National Action Plan) of the
commission is yet to be accepted by cabinet. This can create unclear relationships
between the commission and government departments.

The commission is aware that there ought to be stronger relationships with NGO's and
civil society.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                 11
The commission has also begun to collect anecdotal evidence from its interactions with
the public and information that they receive on their toll free line that can be included in
its submission writing.

The commission has a complaints database that can be accessed to enrich its
submission writing. This is viewed as very important in the submission writing process.

Towards the end of our discussions a number of suggestions were put forward that the
SAHRC could consider to strengthen and enrich its submission writing process. These
suggestions included:
    Develop good internal systems that support the submission writing process.
    Have a good complaints database that can be used to feed into the submission
      writing process.
    Develop a relationship plan, which highlights the areas of expertise of all staff
      members.
    Commissioners should be used more for lobbying and external engagements.
      Key message sheets with short summaries of issues could be prepared for
      commissioners and circulated on a regular basis in order that lobbying and
      networking opportunities are taken advantage off.


8. Procedures and processes that are used internally in the Commission for
   drafting submissions on bills and government policy documents
                                                   Robert Hallowel, Legal Counsel

Drafting submissions
Robert sketched how the commission goes about drafting its submissions. All policy and
legal analysis staff meet once a week. Staff from the three offices in Christchurch,
Wellington and Auckland has regular telephonic conference meetings. There is an initial
screening of the legislation against standard set criteria. An assessment is made and
presented to the meeting. The assessment criteria for whether to become involved with
policy and legislation are too broad. The commission continuously strives to be strict and
limit the amount of work that they get involved. Two persons are then delegated to work
on a piece of legislation or policy that the commission decides to become involved in.
The two person team is made up of a commissioner and a person with expertise in the
area. There is still a need to formally identify the areas of expertise amongst staff.
Through the LPEG meetings, the progress of the submission writing process is
monitored. The minutes of LPEG are circulated broadly in the commission in order that
commissioners and relevant staff are aware of what the commission is currently busy
with.

The Commissions‘ Statement of Intent sets out 6 themes (areas) that the commission
has adopted to work on. These are: strengthening the human rights environment; getting
it right for disabled people; getting it right in race relations; getting it right for children and
young people; getting it right at work; and, human rights and the Treaty of Waitangi.
These areas assist in guiding the commission in determining which pieces of policy and
legislation to become involved in.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                 12
The legislative process in NZ
Robert briefly sketched and outlined the legislative process of the NZ parliament. There
is a general sense that legislative development occur at a much slower pace in NZ and
that there is more time to develop policy and responses to legislative developments.
There also appears to be more opportunities to provide input on policy and legislation,
particularly at an earlier stage, due to the number of policy papers and discussion
papers that are drafted and distributed for discussion and input prior to legislation even
being drafted.
The parliamentary process in New Zealand is different from South Africa in a number of
ways.
     Discussion papers, policy documents, draft bills etc precede a lot of new
        legislation. Whilst this also happens in South Africa, it appears to occur more
        often in New Zealand.
     Once the Bill is tabled in parliament there is a first reading. At this stage,
        submissions are called for. A select committee processes the Bill. Depending on
        the nature of the legislation the amount of time that is provided for comment can
        vary. In general, there was a sense that these time frames for commenting are
        generally a lot longer in New Zealand.
     In New Zealand the current majority party holds one seat less of a majority in the
        parliament. Therefore there is a need to form coalitions on issues and persuade
        other parties to join the majority party in order to process a bill. Therefore there is
        a need for the majority party to engage with all other political parties. This can
        sometimes lead to compromises being made with legislation. A recent example,
        (although the legislative process is not concluded) is the bill, which removes the
        defence of reasonable physical punishment that can be administered by parents
        (Section 59 Bill). This Bill is currently being processed within the select
        committee. At this stage it appears that a total removal of the defence will not be
        accepted but that the current defence will be substantially narrowed.

During the discussions a number of issues that have also been discussed from time to
time within the SAHRC arose. These included:

Physical position of the Policy Unit
The commission has placed the Policy Unit at its Auckland office. There has been a
debate as to whether the Unit should be in Auckland or Wellington, the countries political
capital. The commission has found that they experience a high staff turnover of policy
staff based in Wellington due to government enticing these workers with higher salaries
than what the commission can offer.

The role of lawyers in submission drafting
The NZHRC has also had debates about the role and place of lawyers within its work
and the degree of legal input that is needed in policy work. The shortcomings of a strictly
legal approach are recognized.

Lack of policy
Certain issues that are crucial policy decisions have not been resolved internally and
remain moot. Because the commission has not finalized its position on the issue it
becomes difficult to engage with the legislation in which the policy position is needed in
order to form the submission. This can lead to difficult decisions not being taken.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007             13
Need for information management systems
There is a need for a databank of policy decisions within the commission.

pm. Depart Wellington, 1 hour flight

Wednesday, 17 January 2007



9.      Welcome
I received the traditional Maori greetings with tea and food. Almost every staff member
greeted me in Maori and a couple of traditional Maori songs were sung.

I was given the opportunity to speak and introduce myself. Staff were keen to hear about
South Africa and the human rights landscape.


10.      Immigration Act Review and ensuring public participation in the
         submission drafting process
                                                            Commissioner Jores De Bres,
                                                           Race Relations Commissioner
Immigration Review
Recently the commission worked in a different manner with the Department of Labors
Immigration review that was released for comment. The NZHRC completed an analysis
of the review, identified the issues and placed these in a table matrix. This was
distributed and placed on the commission‘s website to assist individual members of the
public and the organization to engage with the legislation. It is a model of engaging with
legislation with the commission acting as an independent expert that is available to the
community.

The ministry contacted the HRC and requested a meeting in order to address the human
rights issues that were raised by the document.

The commission has found that this model works well and would like to do it in the
future.

Foreshore and Sea Beds Act
The commission has also had training sessions on legislation with communities. This
was followed with the Foreshore and Sea Beds Act, which was a controversial piece of
legislation that affected rights of communities.

The commission arranged public forums, symposia and dialogue sessions to debate the
legislation with the Minster, government officials and Maori representatives. This allowed
all parties to get together and hear the view of each other directly. The commission also
conducted training on how to make a submission.

This commission works in the following ways:
    Connecting stakeholders
    Providing forums to talk
    Facilitated forums
    Training


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007        14
Through these ways of working the commission establishes credibility.

Getting involved early
The commission finds the earlier they become involved in legislation the better. There is
more opportunity to influence legislation the earlier one becomes involved.
Does not monitor parliament
The commission does not have the resources to send people to parliament to monitor
the processing of legislation through the select committees.

Nothing is rushed
Nothing is rushed through parliament. Government is not assured of a majority and
therefore negotiation has to take place between the different political parties.

Immigration and refugees position in NZ.
The review of the immigration law currently seeks primarily to modernize processes and
the commission is in agreement with many of the changes that are sought. There are a
few contentious issues; such as: powers of detention; the length of detention; and, the
grounds of detention.

NZ has few refugee issues, as it is not a traditional receiving country. It is sea-an island
and the only viable way of reaching NZ is by air. Airlines bear the responsibility of
ensuring that all passengers have the necessary documentation to gain entry to NZ
before boarding.

NZ receives a small quota of refugees on an annual basis. They also accept a small
number of asylum seekers. These have all been subject to advanced processing.

Race Relations work – engaging with civil society
Diversity Action Programme
The NZHRC engages little in political debate. The commission seeks to work with
community organizations. This can be demonstrated in its work on diversity and its
Diversity Action Programme. There are currently 200 organizations that are partners in
this work. The organizations register projects that they intend running with the
commission and the commission facilitates the advertising and publicity of these
programmes.

The commission does not tell organizations what they must do instead the organizations
tell the commission what they will be doing. In this manner, there are ongoing
discussions about the programmes that will take place and an enormous amount of
networking between the communities. There are 3 networks within the forum these are
the interfaith, media and language networks.


The New Zealand Diversity Action Programme connects organisations that value cultural
diversity and promote positive race relations in Aotearoa New Zealand.

Participants include community organisations, government agencies, local authorities,
educational institutions, faith communities, media, sector groups, libraries, museums,
and many more. The Programme is facilitated by the New Zealand Human Rights



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007          15
Commission.

The Programme has a number of strands connecting organisations around particular
themes, such as diversity and the media, national language policy, interfaith cooperation
and tangata whenua. More strands (both regional and thematic) will develop as the
programme grows.

Participants in the Programme register one or more projects each year that support
cultural diversity and positive relationships2.


Newsletter
The commission also has an e-mail newsletter, which it distributes on a monthly basis to
the network. The commission requests and receives items for this newsletter from its
partners.

Diversity Forum
Each year the commission hosts a Diversity Forum, which has up to 20 sub forums that
discuss connected matters.

Certificate
The commission also awards a certificate each month to two people who have done
great things to promote diversity. This recognition is communicated to 4 000 role-players
throughout the country.

Annual Race Relations Report
The commission also produces an Annual Race Relations Report (received a copy of
the 2005 report)3. The commission is still working on developing a set of indicators and
to chart the progress of race relations in the country.


11.      Corporal punishment
                                                                              Joy Liddicoat, Commissioner

Joy has a special interest in violence against women and children. She recognizes that
the human rights arguments that support the prohibition of corporal punishment are clear
however it is an emotional issue.

During the submission writing stage of the Section 59 Bill there were divided views
amongst civil society. There were some family organizations that did not support the ban
on corporal punishment. A compromise position was sought that would limit and define
more clearly the instances in which physical punishment could be used to a discipline a
child in the home. This resulted in almost macabre medieval sounding legislation that
seeks to legislate the manner in which corporal punishment can be administered. The
result of failing to support the outright ban and the untenable outcome of the


2
 NZHRC website
3
 Go to http://www.hrc.co.nz/home/hrc/newsandissues/racerelationsreport2006.php for a copy of the 2006 Race Relations
Report




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                                 16
compromise has subsequently led a number of organizations to change their views and
support a ban on corporal punishment.

General comments on advocacy and lobbying
    There is an acceptance that the commission cannot do everything and that some
      pieces of legislation should be left.
    Becoming involved in legislation as early as possible was advocated. This leads
      to most impact.
    The commission does not get involved in active lobbying of MP's, this is not to
      say that the commission does not speak to and engage with MP's at all.
    There is a debate within the commission over the geographic positioning of staff
      who draft submissions. There was a strong view that the legal policy analysts
      ought to be based in Wellington close to government and parliament.
    Legal policy work and submission writing is a specialist area and it is not easy to
      find people with the requisite skills. There is a definite style of thinking and writing
      that is needed.


12.      Parliamentary Tour
The Parliamentary Tour was fascinating for a South African as there are many
similarities between the NZ parliament and the South African parliament. Having been
built in a similar period, even the architecture was quite similar. What was different was
the structural changes that have been made to the base of the parliament building in
order to protect the building should there ever been an earthquake.

The NZ parliament first met in 1854. Elections are held every three years. There are 120
members of Parliament. There is also a speaker of parliament, Sergeant-at-arms and
Hansard reporters record all the speeches made in the House.


13.      Ministry of Justice
                                                                  Stuart Beresford, Principal Advisor

The Ministry of Justice Human Rights Team is responsible for:
    Advising agencies on law and policy
    Providing policy advice to the Minister of Justice and government in general on
      human rights
    Providing advice on international law obligations
    Supporting the NZHRC. The commission is part of the Justice ministries budget
      vote

Streamlining tribunals
NZ has become a regulatory society and this has led to a mushrooming of tribunals. This
does not always make for good economic or administrative efficiency. The Ministry of
Justice is considering streamlining tribunals; bringing all tribunals under the Ministry of
Justice; creating uniformity in the rules of procedure; and ensuring that all tribunals have
the appropriate powers that are needed. The Ministry is looking at creating model rules
and minimum rules that all tribunals must comply with. Within this framework it is
recognized that there is not a one size fits all answer. The collapse of the Race
Relations and Equal Employment tribunals in 2001 into the NZHRC is an example of
streamlining and ensuring fewer forums.


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                   17
Lobby groups
There has been a growth in the last 10 years of well organized and well funded lobby
groups that pursue conservative human rights agendas (e.g. the Sensible Sentencing
Trust which works to promote a crime free New Zealand and runs successful media
campaigns and strategies to get its message across.) These lobby groups are popular
and exert influence on politicians, parliament and decision makers. They have influence
and play to popular perceptions such as is being experienced with the current support
for corporal punishment not to be prohibited. Within this changing environment there is a
need for the NZHRC to go beyond traditional submission writing and to develop
accompanying advocacy plans and strategies that address these groups.


14.        Disability in New Zealand
                                                           Wendy Wicks, Policy Researcher, DPA4

The DPA was formed in 1981 during the International Year of Disabled People. DPA is
an umbrella organization representing a range of persons with disability. It represents
people with all types of impairments — physical, sensory, intellectual, psychiatric and
neurological, acquired at any stage of life. It is an organization for disabled people by
disabled people - 'the appropriation of the voice'.

The organization works in the area of policy, law and practice. It actively seeks to
influence the development of policy and legislation at all levels. The organization seeks
to challenge the status quo. It is a proactive organization that engages in networking and
forming alliances with like-minded and other vulnerable groups on issues.

Relationships with government
The organization actively lobbies. For example, the DPA visits the Disability Minister
every 6 weeks to discuss matters. A number of strategies are used in ensuring that
voices of disabled people are heard in legislative processes. Their submissions follow a
format of stating their case, setting out their objection to the Bill and then giving an
alternative. In some instances the DPA will meet with the NZHRC and discuss the
content of a possible submission.

Disability within government in New Zealand
There are a number of structures within government that are tasked with dealing with
disability matters. The governments Office for Disability Issues has developed a
Disability Strategy, issues annual work plans and progress reports. The Office
coordinates a Disability Advisory Council made up of 13 persons that meet four times a
year. The Council provides advice to the Office on the implementation of the NZ
Disability Strategy.

Relationship with NZHRC
The organization has a good and receptive relationship with the NZHRC. For example,
the organization submitted a number of complaints to the NZHRC about the lack of
accessible transport. This led to the NZHRC holding an Accessible Transport Inquiry.



4
    See the organizations website http://www.dpa.org.nz/index.html


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007             18
Issues
The issues facing the disability sector are different to South Africa were we are still
working to ensure social inclusion and remove discrimination against persons with
disabilities. Clearly far more has been achieved in these areas in New Zealand.
Bioethics is currently an important issue for the disability sector in NZ.

Unlike South Africa where we have a number of members of parliament with disabilities,
in New Zealand only the Speaker is an amputee. It is unknown if there are any other
MPs living with disabilities.


Auckland, Thursday, 18 January 2007


15.      Engaging with international treaty bodies and corporal punishment
                                                                       John Hancock,
                                          ACYA Action for Children and Youth Aotearoa

ACYA is an umbrella organization that seeks to improve the wellbeing of children and
youth.

International treaty body work
In 2003, this organization was responsible for coordinating and drafting a shadow report
to the New Zealand governments report to the UN Committee on the Rights of the Child
(CRC). Over 150 people contributed to the report. A video of the report was produced
with the assistance of the NZ Department of Justice and Save the Children.

In 2003, the CRC Committee delivered its recommendations to New Zealand. The
government responded by putting a work programme in place in order to consider and
implement the committee‘s recommendations. An UN CRC advisory group with
representatives from civil society was set up to give advice and input; and, to monitor the
implementation of the committee's recommendations. However, some question the
effectiveness of this committee.

Corporal punishment
ACYA has also been involved with the Bill to repeal section 59 of the Crimes Act 1961.
This section permits parents to hit or smack their children to correct their behaviour
provided that they use only reasonable force. It was acknowledged that this is a highly
emotive issue for communities. A recent poll in NZ indicated that 80% of people oppose
the Bill. There are also powerful lobbying groups that oppose the Bill. These groups
have successfully engineered within the media that the Bill is portrayed as an Anti-
Smacking Bill. It is now difficult for groups who support the Bill to portray it in a positive
light. It is also of interest that whilst government is generally reasonably progressive on
most issues and despite various pieces of legislation that support non-violence that
government has not come out more strongly in support the Bill.

ACYA is concerned that government is adopting a more conservative approach towards
children in conflict with the law as part of its response to powerful anti crime lobbying
groups. For example, the minimum age of criminal responsibility is being reconsidered.
ACYA views this as a step backwards for child rights in NZ.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007            19
Lessons learnt
ACYA have learnt that it is necessary to have a well-devised advocacy and media
strategy for issues that are highly emotive and where it can be anticipated that there will
be a strong backlash from communities.

The impact of crime and violence on communities can powerfully shape views and
impact on legislative developments in a manner that runs contrary to the advancement
of human rights.


16.  An understanding of how international work is positioned within the
commission and carried out
                                          Executive Director, Joanne Collinge
                                                                          and
                                                                 Terry O’Neil

NZHRC has developed an International Strategy document that guides their international
work. The commission is currently involved with a scoping exercise to determine its
further work at an international level. There are enormous opportunities and possibilities
of types of work that can be done and therefore it needs to be considered carefully. The
NZHRC is in the process of developing an international unit. It will be semi autonomous
of the commission and self funded. Another example of an international unit would be
the Australian Human Rights and Equal Opportunities Commissions (HREOC)
international unit.

There are a number of issues that need to be considered when embarking on
international work. It is important to decide whether to have an international or regional
focus. Also, it is important to have a good knowledge and understanding of the
government‘s international policies and determine the extent to which the commission‘s
policy is aligned with it. An alignment of strategies can create good synergies in terms of
the work that is done.

The NZHRC has decided to have a regional focus and conduct regional projects. The
Commissions international policy is in alignment with that of government. This has led to
a realization by politicians of the usefulness of the commissions‘ work to government in
pursuance of its international agendas. This in turn has assisted the commission in
attracting funding for its international work.

The regional focus of the commission is working well. The commission is focusing on
strengthening human rights institutions in the Asia Pacific Forum. In particular the
commission is focusing on working with the Fiji Human Rights Commission5. The
NZHRC is seeking to develop a formal partnership to do work with the commission. The
current coup in Fiji and the state of democracy and human rights in the country is of
great concern to the NZHRC.

The NZHRC is also involved with the Asia Pacific Forum (APF6), which has a council of
jurists. It is a specialist advisory body that provides on request jurisprudential guidance


5
    Fiji Human Rights Commission website www.humanrights.org.fj
6
    Asia Pacific Forum website www.asiapacificforum.net



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007         20
to the members of the Forum. There are currently no regional human rights courts. The
development of such a court is a long-term aim of the region.

Types of international work could include:
    Promoting government to comply with its international requirements
    Assist in stimulating the development of reports from within civil society
    Promote the connection between domestic and international law in all the work of
      the commission
    Promote the new Disability Convention
    Consider developing regional national human rights institutions collective
      reporting in order to support and strengthen NHRIs in the region

Some very practical advice came through during the course of the meeting that should
be considered when a commission decides to take on international work. This includes:
    Creating the necessary structures and systems
    Creating a clear strategy that is agreed to be by commissioners and senior
       management
    Ensuring that international work is done slowly and well
    Ensuring that international work is of a consistently high and excellent standard.
    Employing the necessary skilled staff to do the work.
    Recognizing that the work is time consuming
    Half what it is that you think you can do and then double the time scale.
    Strengthening links with regional bodies such as the Coordinating Committee for
       African National Human Rights Institutions
    Working with what already exists in terms of NGO's, government departments
       etc. ....

Two papers were made available to me, one on the commissions‘ international strategy
and another on regional human rights national institutions.


17.      Lunch meeting
                                                       with Chief Commissioner Roslyn Noonan
                                                                                             and
                                          Principal Policy Advisor and Legal Analyst, Sylvia Bell

The luncheon provided an opportunity to meet and explore issues with Sylvia Bell who
has worked at the commission for sixteen years. She has an enormous wealth of
knowledge and experience on a number of issues.

During the course of the lunch we spoke about the submission writing process of the
commission. Again issues of trying not to take on too much work, realizing that not every
piece of legislation can be addressed, ensuring that not too much time is spent
determining whether to write a submission and the specialist nature of submission
writing work came through as common themes.

We also discussed corporal punishment and a number of issues relating to mental
disability and review boards and tribunals. It was interesting how many of the questions
that are currently being considered around the effectiveness of tribunals and review
boards in protecting rights is shared. Rather than playing catch up in South Africa (due



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007               21
to our past) in terms of protecting rights we are experiencing many of the challenges that
are also faced in more established democracies in areas such as disability.

Auckland, Friday, 19 January 2007


18.      Children's Commission
                                                                     Mereana Runi, Principal Advisor

Introduction to the Children’s’ Commission
This CC was established in 1989 originally in terms of the Children, Young Persons and
Families Act 1989 (subsequently the founding legislation became the Children‘s
Commissioner Act 2003). The commission has a specific mandate to act in a watchdog
and monitoring role in the areas of welfare (children in need of care) and, offending and
youth justice (child protection).

The Commissioner is appointed for a five-year term of office. To date there have been
four (4) children‘s commissioners. One has come from a political background and the
other three from academic backgrounds. The current commissioner is Dr Cindy Kiro who
was appointed on 1 September 2003. It is a crown entity (independent) and not a
government agency. The commission reports directly to parliament.

The CC has a small staff of approximately 15 people. Because of their small size they
have to choose their interactions and activities strategically in order to make impact.

The CC does not deal with individual complaints. It acts more as a referral agency. Only
where a matter reveals a serious or important systemic issue will a case be taken on and
investigated. An example was given of a case where two young girls were murdered by
their stepfather. Investigations revealed that there had been ongoing family problems
and that multiple state actors had been involved in assisting the family yet these state
actors had not been liaising with each other in an attempt to resolve the issues jointly.
This lack of communication between state actors contributed towards the system failing
to resolve the issues in the family


Legal mandate of the Children’s Commissioner
The CC has a broad mandate. It includes:
    ―Inquire into and report on any matter relating to the welfare of children by
       investigating and decision or recommendation made, or any act done or omitted
       in respect of any child.
    Monitor Child Youth and Family Services and other persons, bodies and
       organizations exercising a function or power conferred by the Children, Young
       Persons, and their Families Act 1989.
    Advise the responsible Minister on any matters, relating to the administration of
       the Children, Young Persons and Their Families Act 1989.
    Promote public awareness of children‘s rights and issues relating to the welfare
       of children and young people.
    Advocate for and on behalf of children and young people.
    Seek children‘s and young people‘s views on issues and enable their voices to
       be heard.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                  22
           Promote the development of policies and services designed to protect the
            interests, rights and welfare of children and young people.
           Raise awareness and understanding of the Convention and advance and monitor
            its application by departments of State and other instruments of the Crown.
           Promote the establishment of accessible and effective complaints mechanisms,
            in key agencies, for children and monitoring the nature and level of complaints.
           Undertake research into matters relating to the interest, rights and welfare of
            children and young people.‖7

The CC works in the area of advice, monitoring and investigation and public awareness
and advocacy.

Focus area of work
Currently the commission is focusing on poverty and violence.

Submission drafting
Submission drafting forms part of the CC ‗advice output delivery‘. The CC drafts various
submissions on policy and legislation. They consult with the NZHRC in order to avoid
overlap or contradictions in what is being said. There is however no formal protocol that
governs this. The CC will also liaise with other relevant bodies, such as the Family
Commissioner and the Privacy Commissioner.

Where there are issues of common interests, some of the independent organizations
may come together and draft a joint submission. Where there are additional points that
need to be made on the joint submission then this would be done in a covering letter.
This strategy helps spread the workload. There are good working relationships with the
other commissions.

Should the CC become part of the NZHRC?
There has been a debate for some time as to whether the CC should form part of the
NZHRC or not. The CC argues that there is a need for a stand-alone CC in order that
the voices of children do not become submerged. The CC has a narrower child rights
focus whereas the HRC has a broader human rights context.

Relationships
    The CC views itself as being more engaged with government agencies and
       Ministers than the NZHRC. This can be attributed to the CC basing herself in
       Auckland close to parliament and government departments and agencies. (A
       quarter of the New Zealand population live in Auckland and a third of all children
       live in Auckland). On the other hand, the NZHRC has chosen to base its head
       office in Auckland.
    The Children‘s Commissioner holds regular meetings with the Minster of Social
       Services and the Minister for Child Youth and Family. There are also monthly
       meetings with the Education Minister and monthly meetings with the heads of
       government departments in the areas of education; health; social services;
       police; amongst others.
    There have rarely been jurisdictional issues with other commissions and
       government agencies. The legislation in New Zealand is clear on the mandates


7
    See Office of the Children‘s Commissioner Annual report 2006, p8



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007          23
          and responsibilities of the respective commissions and mandates. This is despite
          there being a number of state agencies that deal with children's issues.
         Where there is any overstepping of boundaries or jurisdictions between
          commissions and agencies this is resolved informally and quickly. New Zealand
          is a small country and role-players tend to know each other. Therefore there is
          communication between the different role-players and jurisdictional territory
          issues are not an issue.
         The CC maintains good relationships civil society. The NZ Action Plan for Human
          Rights was cited as a good example of how commissions and organizations
          worked together in the formulation of the action plan.

Physical discipline / Corporal punishment
The CC supports the prohibition of corporal punishment. From a strategic perspective
the CC refers to research, including international research when formulating their policy
position and arguments on this issue. They have found that there has been a backlash
against rights based arguments that promote the eradication of all forms of corporal
punishment. In their experience, using research is a more effective way to influence
government agencies and government advisors of their position.

The CC has used research that indicates children‘s‘ interpretations of their parent‘s
actions when they are hit. In this research children interpreted their parents‘ actions as a
demonstration that their parents did not love them or even hated them. This research
has a profound effect on people who support smacking, especially parents. Also,
children themselves are remarkably creative in coming up with alternatives to corporal
punishment.

The CC accepts that it will take time to change social attitudes towards smacking and
that there is a need for carefully tailored parenting programmes. These programmes
need to be targeted at all parents and not just parents who till smack their children as a
form of discipline. Targeting only the latter parents would label them as bad parents.

The legislation (aka section 59 Bill) that is currently before the New Zealand parliament,
which proposes to prohibit corporal punishment, had led to a split amongst political
parties. The Prime Minister has come out in support of the Bill whereas there are a
number of senior government ministers who do not support the Bill. Then there are a
number of conservatively minded organizations that do not support the Bill. These
organizations tend to be well funded.


19.       Presentation to NZHRC, “Supporting democracy through participation in
          legislation making”
                                                                  Judith Cohen

The purpose of the presentation was to describe the manner in which the SAHRC
engages with the legislation making process. A case study of the Older Persons Bill was
presented. Examples of challenges confronting the elderly in South Africa were
described in order to contextualize the legislation. The 9 stages that were used of
engaging with the legislative process were described. These are:
    Initial meetings and pilot workshops that address the Older Persons Bill with
       relevant civil society organizations
    The hosting of Provincial Workshops


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007          24
        The convening of Brainstorming sessions
        Workshops to strengthen civil society to engage in advocacy and lobbying
        The establishment of the Rights of Older Persons Working Group (ROOPWG),
         an e-mail distribution list that kept the older persons sector informed about the
         processing of the Bill and facilitated and encouraged further engagement with the
         Bill through advocacy and lobbying
        The establishment of an Older Persons Forum
        Participating in the Public Hearings on the Bill
        Influencing the final drafting of the Bill through further workshops and
         communication with the parliamentary committee and departmental officials
        Actively monitoring and lobbying politicians during the stages of finalization of the
         Bill in the committee

20.    Farewell
I was given a traditional farewell accompanied with tea.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007            25
                                                                                      Annexure 1
Itinerary

Monday, 15 January 2007, Auckland

10.00             Brief welcome followed                 by     morning       tea:   Human   Rights
                  Commission, Auckland

11.00             Meeting: Chief Commissioner Rosslyn Noonan
                  (An understanding of the relationship between the New Zealand
                  Human Rights Commission and Parliament)

12h00             Meeting: Senior Policy Analyst, Jack Byrne
                  (Transgender Inquiry and ensuring public participation in the
                  submission drafting process)

13h00             Lunch

14h00             Meeting: Policy Analyst, Jessica Ngatai
                  (The Legislation and Policy Evaluation Group (LPEG) mechanism
                  and processes)

Tuesday, 16 January 2007, Auckland

10h00             Meeting: Senior Advisor Human Rights and Race Relations, Dr Jill
                  Chrisp
                  (Integrations of legislative developments into education and
                  awareness raising work)

11h30             Training Workshop, Treaty of Waitangi

12h00             Meeting: Executive Director, Joanne Collinge
                  (Strategic policy interventions)

13h00             Lunch

14h00             Meeting: Legal Counsel, Robert Hallowell
                  (Procedures and processes that are used internally in the
                  Commission for drafting submissions on bills and government
                  policy documents)

Travel to Wellington

Wednesday, 17 January 2007, Wellington




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                 26
09h15             Welcome: Human Rights Commission, Wellington

10h00             Meeting: Race Relations Commissioner Joris De Bres
                  (Immigration Act Review and ensuring public participation in the
                  submission drafting process)

11h00             Meeting: Commissioner Joy Liddicoat
                  (Submission drafting and corporal punishment in the home)

13h00             Tour of New Zealand Parliament

14h00             Meeting, Principal Advisor, Stuart Beresford - Human Rights / Bill of
                  Rights, Public Law, Ministry of Justice

15h30             Meeting: Wendy Wicks, Policy Researcher, DPA (NZ) inc.

Thursday, 18 January 2007, Auckland

Travel to Auckland

10h00             Meeting, John Hancock / ACYA

11h00             Meeting: Executive Director, Joanne Collinge and Terri
                  (An understanding of how international work is positioned within the
                  commission and carried out)

12h00             Lunch meeting with Chief Commissioner Roslyn Noonan and
                  Principal Policy Advisor and Legal Analyst, Sylvia Bell

Friday, 19 January 2007, Auckland

10h00             Meeting: Mereana Ruri and team, Office of the Children's
                  Commissioner

13h00             Lunch

14h00             Presentation by Judith Cohen to staff of the Commission

15h00             Farewell afternoon tea




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007     27
                                                                                  Annexure 2
Documents and Books received


    1. Bell, S & Brookbanks,W, ―Mental Health Law in New Zealand 2 nd edition‖,
       Thomson Brookers, 2005

    2. Children‘s Commissioner, ―Safety of Children in Hospital‖ January 2006

    3. Children‘s Commissioner, ―Annual Report, 2006‖. 2006

    4. Children‘s Commissioner, ―Tamariki, Newsletter‖, No 57 April 2006, No 58
       Winter 2006; Children No 59 Summer 2006

    5. Children‘s Commissioner, ―The Discipline and Guidance of Children,
       Messages from Research‖, August 2005

    6. Children‘s Commissioner, ―Choose to Hug, not to Smack, Information for
       Caregivers, Parents and Whanau, Ways to avoid Smacking and Hitting‖,
       undated

    7. Children‘s Issues Centre, University of Otago and Office of the Children‘s
       Commissioner, ―The Discipline and Guidance of Children: A Summary of
       Research‖, June 2004

    8. DPA(New Zealdn) Inc, ―Our vision: To Matou Tirohanga Whakamua‖,
       (2005 – 2008)

    9. Gostin, L, Rassaby, E & Buchan, A, ―Mental Health: Tribunal Procedure‖,
       1st edition, Oyez Longman,1984

    10. Human Rights Commission, ―Submission of the Human Rights
        Commission on Yong Offenders (Serious Crimes) Bill to the Law and
        Order Select Committee‘, 14 July 2006

    11. Human Rights Commission, ―An introduction to the Human Rights
        Commissions and its work‖

    12. Human Rights Commission, ―Tui Tui Tuituia Race Relations in 2005‖,
        February 2006

    13. Human Right Commission, ―Age and retirement in the Public Service –
        Legal and human resource implications of the abolition of compulsory
        retirement‖, December 1998




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007           28
    14. Human Rights Commission, ―Discussion Paper- Review of the Guidelines
        on Insurance and the Human Rights Act 1993‖, October 1996

    15. Human Rights Commission, ―2006-07 Statement of Intent and Service
        Performance‖.

    16. Ministry of Justice, ―The Non-discrimination Standards for Government
        and the Public Sector – Guidelines on how to apply the standards and
        who is covered‖, March 2002

    17. Ministry of Justice, ―The Handbook of the New Zealand Bill of Rights Act
        1990, An introduction to the Rights and Freedoms in the Bill of Rights Act
        for the Public Sector‖, August 2004

    18. Minister for Disability Issues, ―The New Zealand Disability Strategy –
        Making a world of Difference – Whakanui Oranga‖, April 2001 & Easy to
        read version

    19. Ministry for Disability Issues, ―Work in Progress 2006, The annual report
        from the Minster for Disability Issues to the House of Representatives on
        implementing the New Zealand Disability Strategy‖, December 2006

    20. Pritchard, Rhonda, ―Children are unbeatable, 7 very good reasons not to
        hit children‖, 2006

    21. The Declaration of Independence 1835

    22. The Treaty of Waitangi 1840

    23. Wellington Community Law Centre, ―Schools and the Right to Discipline, A
        Guide for Parents‖, May 1999

    24. Youth Law, ―When can I – A Guide for children and young people as t their
        legal rights and responsibilities at different ages‖, 2004




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007   29
                                                                                  Annexure 3

                INQUIRY INTO DISCRIMINATION AND HUMAN
                  RIGHTS ISSUES FOR TRANSGENDER PEOPLE
1. TERMS OF REFERENCE

The Human Rights Commission is undertaking an Inquiry into discrimination and human
rights issues for transgender people. This will be conducted under the powers granted to
the Commission pursuant to section 5 of the Human Rights Act 1993 including, but not
limited to the following:

        to inquire generally into any matter, including any enactment or law, or any
         practice, or any procedure, whether governmental or non-governmental, if it
         appears to the Commission that the matter involved, or may involve, the
         infringement of human rights (section 5(2)(h)
        receiving and inviting public representations on human rights s5(2)(f)
        publishing reports s5(3)

Terms of Reference for the Inquiry are that:

1. The Commission will inquire into:

    (a) the nature and extent of discrimination experienced by transgender people;
    (b) the accessibility of public health services to transgender people (incorporating the
        minimum core obligations of both the primary and secondary health services
        including, but not limited to, gender reassignment services); and
    (c) barriers faced by transgender people when attempting to gain full legal
        recognition of their gender status.

2. To consider, as a result of these inquiry processes, whether to make recommendations
on:

    (a) changes to legislation, regulations, policies and practices; and
    (b) other steps required to reduce the level of marginalisation experienced by
        transgender people.

2. INQUIRY PROCESS

The Inquiry will be conducted in four phases.

Phase One: Information gathering                      August – October 2006




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007           30
   Initial consultation with interested groups to advise of the inquiry process and seek
    involvement. Consultation will include Ministers of the Crown, relevant government
    agencies and individuals and groups within the transgender community;

   Research focusing on New Zealand administrative data, current policy and practice
    and international best practice;

   Consultation with relevant professional bodies.


Phase Two: Hearing and receiving submissions                   October – November 2006

   Invite submissions from interested groups and individuals;

   Conduct public hearings in Auckland, Wellington, Christchurch, Dunedin and in
    other locations as appropriate.


Phase Three: Analysis of submissions and issues                December 2006 – May 2007

   Prepare and circulate a preliminary analysis of submissions and issues

   Consult with key stakeholders as appropriate

   Prepare a draft final report

   Invite submissions from interested groups, individuals and government agencies on
    the draft final report.


Phase Four: Publication of final report                                           September 2007

   Publish the final report.

Following publication of the final report the Human Rights Commission would undertake
monitoring of the implementation of the Inquiry recommendations.

3. TIMING OF THE INQUIRY

The Commission will use its best endeavours to conduct the Inquiry according to the
following timeframe:

         (i)      August – October 2006: Information gathering;
         (ii)     October – November 2006: hearing and receiving submissions;
         (iii)    December 2006 – March 2007: Preliminary analysis of submissions and
                  issues and consultation as appropriate;


Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007                    31
         (iv)     May 2007: Draft final report circulated for comment;
         (v)      September 2007: Final report published.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007   32
4. CIVIL PROCEEDINGS

    (i)      The Human Rights Act 1993 provides in section 92E that if the Commission
             considers that an Inquiry by it has disclosed or may have disclosed a breach of
             the HRA it may bring civil proceedings before the Human Rights Review
             Tribunal;
    (ii)     The Commission is not actively seeking to exercise the power given to it by
             section 92E of the HRA.

5. STYLE OF INQUIRY

The Commission is committed to an open and transparent Inquiry that consults widely in
ways that respect the dignity of all those involved. People will be able to make their
views known by:

   Oral submissions at the hearings

   Taped submissions sent to the Inquiry

   Hand-written or typed submissions, which can be posted, emailed or faxed.

The hearings will be public meetings, open to any member of the public and chaired by
one of the three Inquiry Commissioners. Questioning will aim to clarify statements being
offered. Procedures will be designed to ensure that all those who want to contribute have
a fair opportunity to do so.

The Inquiry will receive confidential evidence if this is necessary, for instance, to protect
personal privacy. Every reasonable step will be taken to ensure such evidence remains
confidential. Confidential information given to the Inquiry will only be used for the
purposes of the Inquiry.

Written submissions to the Inquiry may be made in either Maori or English. Oral
submissions to the hearings may be made in Maori, English or New Zealand Sign
Language. If submitters would prefer to use another language, they may contact the
Commission and attempts will be made to accommodate these requests.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007           33
6. INVOLVEMENT

1.       To present a submission at a public hearing in October and November 2006

2.       To make a submission (the closing date is 30 November 2006) or

3.       To receive further information about Inquiry hearings and consultation processes

         please phone, fax, email or write to

         Jack Byrne
         Project Manager
         Human Rights Commission
         P O Box 6751
         Wellesley Street
         Auckland

         Phone: (09) 375-8647
         Fax:   (09) 377-3593
         Email: jackb@hrc.co.nz


         Or contact

         The Human Rights Commission InfoLine
         0800 4 YOUR RIGHTS
         0800 496 877 (toll free)
         TTY (teletypewriter) 0800 150 111




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007         34
7.       GUIDELINES

Submissions

1.    The Commission will receive submissions in writing. Alternative formats
      including oral submissions will be accepted.

      Comment
      The Commission is mindful that some people may have difficulty preparing
      a submission in writing and may find it easier to speak to Commissioners
      without notes.

2. The Commission will consider submissions that address the terms of
    reference of the inquiry. The Commission will not explore issues that go
    wider than the terms of reference.

      Comment
      It is important that the Commission does not make findings on matters
      outside the terms of reference. This ensures the integrity of the process and
      that parties are not later subject to findings on issues which they have not
      had an opportunity to submit on.

Access to submissions and comments on other parties submissions

3.    The Inquiry will receive confidential evidence if this is necessary, for
      instance, to protect personal privacy or commercially sensitive information.

      Comment
      Every reasonable step will be taken to ensure such evidence remains
      confidential.

4.    Submitters will have access to a summary of other submissions subject to
      guideline 3.

      Comment
      An analysis of all publicly available submissions will be circulated. Parties
      will have an opportunity to consider the summary of submissions, and if
      desired, to comment on that summary.

The Hearings Process

5.    A schedule of hearing times will be released in advance of the hearing so
      that interested parties have an opportunity to attend and hear submissions
      of particular interest to them.

6.    Commissioners accompanied by staff will hear submissions.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007   35
7.    Oral submissions that are not accompanied by a written submission may be
      recorded and transcribed.

      Comment
      This ensures an accurate record of proceedings.

8.    Commissioners will conduct the hearing process with flexibility and respect
      for the particular needs of the parties. Commissioners are entitled to ask
      submitters questions.

      Comment
      Questioning will aim to clarify statements being offered.

9.    Hearings are open to the public and the media.

      Comment
      This ensures that the process is open and transparent.

10. Submitters are entitled to ask another submitter questions:
     a) At the end of each submission, Commissioners will ask if any other
        submitters have questions. Commissioners must advise the submitter
        that they are not ―obliged‖ to answer questions.

      b)                     If the submitter agrees to answer questions, the
           Commission will ask the submitter if they choose to respond to questions
           orally or later in writing.

      c)                  Where a submitter chooses to answer questions in
           writing, the questions will be provided in writing to the submitter for a
           written response with copies provided to Commissioners.

      d) Commissioners may limit the number of questions asked.

11. Questions at oral hearings are limited to questions from other submitters
    and Commissioners.

      Comment
      Other parties, such as media or members of the public, are not entitled to
      ask questions during the hearing process.

12. Oral submissions will be limited generally to 30 minutes.

Findings




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007   36
13. In developing its findings, the Commission may ask for further submissions
    or clarification from any parties to the inquiry or from any other parties it
    considers appropriate.

14. The Commission will publish its draft report, provide copies to submitters
    and invite final comments.

15. The Commission will consider final comments of submitters before reaching
    a decision. This may include further clarification of issues.

      Comment
      The Commission will not make any adverse statement about a particular
      organisation, group or individual without first giving them an opportunity to
      be heard. (See section 138 of the Human Rights Act.)

18. Information given to the inquiry will only be used for the purposes of the
    inquiry.

      Comment
      The Commission is not actively seeking to exercise the power given to it by
      section 92E of the Human Rights Act.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007   37
Annexe 1: Principles of Natural Justice

The right to natural justice applies in cases where the exercise of a power affects
a person‘s rights, obligations or interests. It covers two concepts:

    1. A duty to hear both sides of a dispute before making a decision.
       In practice, this varies depending on context. Sometimes a right to
       consultation will be sufficient. In other cases, it includes a right to counsel
       and the right to cross-examine witnesses.

    2. No one should be a judge in his or her own cause.


Annexe 2: Legal Framework under the Human Rights Act 1993

The Human Rights Act sets out the general framework and legal obligations
applying to the Commission in conducting the Inquiry.
Section 5(2)(h) of the Human Rights Act forms the basis of the Commission‘s
inquiry power. It provides the Commission with the following function:
―To inquire generally into any matter, including any enactment or law, or any
practice, or any procedure, whether governmental or nongovernmental, if it
appears to the Commission that the matter involves, or may involve, the
infringement of human rights‖.
A number of other provisions support this role and provide the parameters of how
inquiries should be conducted.
Section 92E provides that if the Commission considers that an inquiry by it under
section 5(2)(h) has disclosed or may have disclosed a breach of Part 1A or Part
II of the Act, it may bring civil proceedings before the Human Rights Review
Tribunal provided that the exercise of this right will facilitate the performance of
its functions stated in section 5(2)(a).

Provisions applying to the conduct of inquiries
Part V of the Human Rights Act specifically relates to the conduct of inquiries.
Section 126A provides that the Commission may apply to the District Court for an
order that a person provide documents, information or give evidence in relation to
an inquiry conducted by the Commission under section 5(2)(h).
Section 127 provides that the Commission may require a person subject to an
order under section 126 to produce documents or provide information; or the
Commission may summon and examine that person on oath.
Section 127(3) provides that the examination of persons in the context of an
inquiry is deemed a judicial proceeding within the meaning of section 108 of the
Crimes Act 1961 as it relates to perjury. This means that a person can be
prosecuted for perjury under the Crimes Act for knowingly making a false
assertion of fact or opinion in the context of an inquiry conducted by the
Commission.



Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007    38
Section 128 provides that every person shall have the same privileges as
witnesses in court in relation to giving information, answering questions and
production of documents to the Commission. This reflects a well established
principle of law that witnesses are not compelled to give evidence if they can
claim privilege under one of the various headings of privilege (for example,
privilege against self-incrimination).

Section 130 provides that no proceedings shall lie against Commissioners, the Director of
Human Rights Proceedings and all staff for statements made in the course of the exercise
of duties under the Act unless it is shown they are made in bad faith.

Miscellaneous provisions

Section 138 provides that the Commission must not, in any report or statement made
under the Act make any comment that is adverse to any person unless that person has had
an opportunity to be heard.




Report British Council Commonwealth NHRC Staff Exchange Programme, January 2007       39

				
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