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Domestic Human Rights Frameworks

CHAPTER FIVE: CONTROLS TO PREVENT STATE RACISM

5.2 Domestic Human Rights Frameworks

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performance targets. Often requirements are detailed in job descriptions, employment contracts and annual performance review targets.

A historic control specific to the health sector has been Māori Co-Purchasing Organisations (MAPOs) which were established under the Northern Regional Health Authority (RHA) in the mid-1990s as a structural response to racism. The MAPO strategy was a mechanism to enable a ‘treaty relationship’ with iwi, so Māori could be involved in funding and planning decision-making and service and policy development at all levels. North Health established MAPO with Tainui, Ngāti Whātua and the iwi of Te Tai Tokerau. Kiro (2000, pp. 221-222) quoted Shea (former North Health manager) described MAPO as being:

Responsible for prioritising Maori health within the RHA’s core business activity for all Maori within the North Health region… [and] The MAPO share joint responsibility for the selection and development of services and providers who are deemed safe, necessary, appropriate, effective and capable of efficient service delivery.

These Treaty relationships forged by North Health operated at both governance and operational levels were later transferred to the HFA and then the Ministry of Health and local DHBs (Minister of Health, 2000). A formal memorandum of understanding defined the treaty partnership with operational protocols to define the mechanics of the working relationship. The practicalities of the partnership meant MAPO staff work alongside Crown colleagues and were involved in all strategic policy-making and planning, funding decision-making, contract negotiations and monitoring.

In summary, there are a plethora of controls on the behaviour of Crown officials and Ministers. These checks and balances address the dimensions of control, guidance and structure. The effective functioning is reliant on access to information to detect racism and professional commitment to compliance.

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accountability and transparency through the enactment of legislation and is focussed on promoting civil society participation.

Paradies (2005) and Sanson, et al. (1998) assert that an effective domestic human rights framework requires an independent agency to administer the legislation and related portfolios free of political interference. They concur that such an agency needs to be well resourced and have a mandate to take a whole of government approach. Capacity needs to be sufficient to allow timely responses to complaints and relationships to be formed with communities targeted by racism. Paradies (2005, pp. 18-19) also emphasises the importance of that central agency taking strategic responsibility to collect and publish data about the how and when racism is manifested so anti-racism interventions can be effectively evaluated and progress monitored. This work can be extended and strengthened by an engaged civil society.

In the context of racism practiced by state parties, an independent agency to oversee human rights is important. Historically various governments have endorsed what are now considered racist legislation, such as the Jim Crow laws in the United States which denied Afro-Americans suffrage, political and economic equity (Better, 2008, p. 26). This caution aside, Psychologist Aronson (1999), argues the most critical factor in the reduction of blatant discrimination in the United States has been the civil rights legislation of the 1960s.

In order for anti-discrimination legislation to be effective, the scope of the legislation needs to include institutional discrimination as practiced by local, regional, state and/or federal governments. This is not always the case as governments grant themselves exemptions and exclusions. Bourne (2001, p. 21) writing in the context of England notes initial drafts of the Race Relations (Amendment) Act 2000 (UK) exempted public bodies from over half of the Acts powers related to both direct and indirect racism.74 Moreton-Robinson (2004, p.

4), notes the failure of Australian anti-discrimination laws to provide legal redress for the extinguishment of native title as an illustration that systemic discrimination against indigenous peoples can and does fall outside legislative jurisdictions.

Sanson, et al. (1998, p. 174) claim that legislation can invoke controversy and disapproval from parts of society, as some feel it curtails their individual freedom.

Paradies (2005, p. 13) asserts it is difficult to definitively gauge the impact of anti-discriminatory legislation. He maintains however, that there is no doubt that similar legislation around seat belt usage and drink driving, has brought about significant changes in expressed attitudes and observable behaviour.

74 The final version of this legislation still gave the immigration service grounds to contravene the Act.

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New Zealand Experience

Inaction is a form of structural discrimination.75 Where governments do not respond to the needs of ethnic groups, the absence of initiatives perpetuates barriers (Human Rights Commission, 2011a, p. 40).

New Zealand’s domestic human rights framework is administered by the Human Rights Commission (HRC),76 who holds a range of powers as outlined in the Human Rights Act 1993. These powers include a broad mandate to provide technical and policy advice in achieving compliance with human rights instruments, the capacity to receive and mediate complaints, to undertake research to investigate patterns of discrimination and identify solutions, and the ability to conduct public inquires. The Commission also have a responsibility for the provision of information to create an environment that supports the progressive improvement of human rights.

The HRA is broadly aligned to New Zealand’s obligation under ICERD (United Nations, 1965). The HRA does not empower the Human Rights Commission to overturn a discriminatory Act of parliament, or government regulations, nor a discriminatory action or policy that has authorised or required by an Act or regulation. Complaints not resolved through mediation may be taken to the Human Rights Review Tribunal. The Tribunal can determine whether that particular law, action or policy is discriminatory. When government legislation or regulations are found to be discriminatory, Wilson (2001, August 13, p. 3) explains:

…the remedy will be a declaration of inconsistency, which the responsible Minister will be required to bring to the attention of the house, along with the Executive’s response to that declaration.

However, there is no requirement for discriminatory policy or legislation to be overturned.

The 2001 revisions of HRAA enabled the Commission to receive complaints about the public sector in relation to employment, public access, the provisions of goods and services in similar footing to that of the private sector. These alterations were developed after the partial completion of Consistency 200077, a major project reviewing all domestic acts, regulations, government policies and administrative practices with a view to assessing their consistency with anti-discrimination legislation (Butler, 2004, p. 51). Despite these revisions, the core

75 The Human Rights Commission (2011, p. 4) use the term structural racism interchangeably with institutional racism to refer to “…practices, norms and behaviours within institutions and social structures which have the effect of denying rights or opportunities to members of minority groups, keeping them from achieving the same opportunities available to the majority group”.

76 The Human Rights Commission was established in 1978 and the Race Relations Office was subsumed within it in 2002.

77 Consistency 2000 as a project was later abandoned by the government.

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conduct of the public sector is primarily judged against the standards of the New Zealand Bill of Rights Act 1990. 78

Since 2004, the Human Rights Commission has released annual reports reviewing progress and areas of development in race relations. These reports (Human Rights Commission, 2005b, 2006, 2007, 2008, 2009, 2010b, 2011b) confirm the ongoing existence of racial discrimination with an average of 572 complaints annually and 23% of those complaints being related the actions and non-actions of Crown agencies. The reports flag an ongoing lack of public knowledge on how to make a complaint, the ongoing existence of entrenched ethnic disparities and the lack of a consistent framework for race relations research.

For the first time in 2010, structural racism as a barrier to racial equality in the enjoyment of civil, political, social and economic rights was selected as a priority area by the HRC (2011b, p. 5). A major research project is currently being undertaken to investigate to what extent structural racism is present within key government agencies and what strategies have proven effective to transform such racism. Their initial discussion document (Human Rights Commission, 2011a) informed by interviews with senior officials, focuses on what initiatives have proven successful to improve embedded ethnic inequities.

The strength of a domestic human rights framework is dependent on the resources invested in it and its political independence. Addressing ethnic inequalities and responding to complaints are important tasks for human rights agencies but efforts also need to be focussed on addressing the contribution of Crown agencies to such inequities. An engaged civil society could help extend and strengthen domestic human rights efforts.