New Zealand Justice Committee is going to table my complaint about the Human Rights Commission

I just received confirmation the the Justice Committee is going to table my complaint about the Human Rights Commission (See below) prior to the annual review of the Commission.

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I writing to you as a member of the Justice select committee. This letter is to inform you of shortcomings at the Human Rights Commission(HRC) prior to the HRC annual review, and to suggest questions for the Commission during the review.

The shortcomings are:

• discriminating against men and boys: and
• not following best practice; and
• not meeting it statutory obligations under the Human Rights Act; and
• failing to meet its own accountability recommendations.

1The Human Rights Commission is discriminating against men and boys

Both national and international human rights law prohibit discrimination on the grounds of sex. However the Human Rights Commission discriminates against men and boys by failing to meet best practices for addressing the human rights of men and boys, and failing to perform it functions equally for men and for women.

2Best Practice

In additional to basic human rights principles, best practice for addressing gender issues in human rights is established in several documents, including: the United Nations ‘Manual on Human Rights Monitoring’ 1, the United Nations ‘Integrating a Gender Perspective Into Human Rights Investigations – Guidance and Practice’’ 2, and the United Nations ‘Economic, Social and Cultural Rights – Handbook for National Human Rights Institutions’3

The best practices include:

• Be proactive
• Be accurate
• Be impartial
• Be gender sensitive
• Making gender visible

2.1Proactive

The UN ‘Manual on Human Rights Monitoring’ states

Integrating gender implies a proactive attitude of looking at and analysing how situations affect women, girls, men and boys differently.4

The Commission is not proactive about monitoring the human rights of men and boys. They rely on passive, gender-neutral polices to be sufficient to identify men’s human rights issues and have no explicit plan to include those issues in their reports. The Commission has been asked to explicitly include men and boys in their work and has refused to do so.

Conversely, the Commission is proactive about the rights of women and girls, going as far as to appoint a women’s rights commissioner, women’s rights advisors, and having regular reviews of women’s rights issues as part of CEDAW monitoring.

Following best practice for women but not for men is discrimination.

2.2Accurate

The UN ‘Manual on Human Rights Monitoring’ states

The integration of a gender perspective into human rights investigations is critical to ensuring high quality analysis that accurately depicts the different human rights violations, including by revealing underlying gender-based discrimination…5

The UN’s ‘Economic Cultural and Social Rights – Handbook for National Human Rights Institutions’ states

the process of monitoring must be thorough, accurate and impartial and must be perceived as such”.6

Accuracy means not only getting individual facts right but providing an objective and fair assessment. Unfortunately the Commission undermines accuracy by consistently ignoring or minimising gender differences when they negatively affect men. Conversely, where gender differences negatively affect women, these issues are highlighted.

For example, in 2009 Callister7 pointed out that the commission describes a 14% differential in favour of men as large, but describes a 14% differential in favour of women as small.

2.3Impartial

The UN’s ‘Economic Cultural and Social Rights – Handbook for National Human Rights Institutions’, states:

“the process of monitoring must be thorough, accurate and impartial and must be perceived as such”8

The Human Rights Commission is not impartial regarding gender issues. They judge human rights violations directed at women and girls as worse or more significant than the same violations directed at men and boys.

For example: the Human Rights Commission treats genital cutting for girls and boys very differently. Genital cutting for girls is a serious human rights violation and religion or culture should not be considered justification for cutting girls. However, for boys, the commission believes parent’s rights to religion and culture need to be considered and balanced against the rights of the child.

It is also worth noting that there are no known cases of female genital cutting in New Zealand. Conversely, every year approximately 3000 boys have their genitals cut unnecessarily for religious and cultural reasons.

Another example: in the Commission’s UNCAT report, they argue that because women are the minority of those affected in the prison population, they need special consideration as they are often overlooked, but for family violence victims, where men are the minority and often overlooked, they reverse their position and argue that the issue should be defined by the majority of those affected. That is, they argue family violence should be considered a women’s issue, while ignoring the needs of male victims.

Best practice also includes the perception of impartiality. Whether the commission is impartial or not, it appears to be biased against men and boys and has done little to change this perception. Simply telling people you are not biased is not sufficient to change people’s perception. The commission needs to demonstrate they are impartial.

2.4Gender sensitive

The UN’s ‘Integrating A Gender Perspective Into Human Rights Investigations – Guidance and Practice’ states:

A gender-sensitive analysis is therefore instrumental to tailoring specific and action-oriented recommendations on the responses that are needed to address human rights violations, protect victims’ rights and contribute to the prevention and non-recurrence of such violations.9

Gender sensitivity means that monitoring and investigations are sensitive enough to identify and measure gender issues. The Human Rights Commission must have systems and polices in place that can effectively identify and measure the human rights violations of men and boys as well as women and girls. Systems should be equally sensitive to issues regardless of gender.

Unfortunately, the commission does not have systems in place that are sensitive to the human rights of men and boys, because it is not proactively monitoring the humans rights of men and boys. The Commission can’t see the issue it is not looking for.

2.5Make visible

The UN ‘Manual on Human Rights Monitoring’ states

“Integrating gender implies a proactive attitude of looking at and analysing how situations affect women, girls, men and boys differently. It is also about making such differences visible throughout the monitoring cycle.”10

The Human Rights Commission is not making the human rights issue of men and boys visible. The Commission often includes sections of the rights of women and girls in its reports, but never on the rights of men and boys. The commission has not even made the effort to publicly recognise International Men’s Day (November 19th) despite being asked to do as little as making a social media post for the day.

3Not performing statutory functions

3.1Monitoring Compliance

Section 5 (2) (kc) of the Human Rights Act 199311 requires the human rights commission to monitor the government's compliance with international human rights instruments.

Compliance

For the government to be compliant with those instruments, it must ensure equal enjoyment of rights between men and women.12 This applies to all civil, political, economic, cultural and social rights. Failing to ensure equal enjoyment of rights is a violation of those rights.13Therefore, for the commission to monitor compliance, it must be monitoring equal enjoyment of rights for both women and men. However, the Commission is monitoring equal enjoyment of rights for women, but not for men. Equality cannot be measured by only looking at one side of the equation.

The commission has systems for monitoring women’s rights. For example regular public consultations with women and women’s groups as part of monitoring the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The commission also has a women’s rights commissioner and women’s rights advisors, and regularly informs the public about the women’s rights issues it is interested in.

The commission has no plan, system or policy to monitor men’s human rights.

In addition to not meeting the requirements of the Human Rights Act 1993, this results in the commission remaining uninformed about men’s human rights issues, leading to sub-standard advice given to the government.

For example, the Human Rights Commission’s submission for the family and sexual violence strategy consultation did not make any recommendations on behalf of male victims despite male victims having serious issues with the family violence system. In fact, the Human Rights Commission recommended more services for male perpetrators, while it ignored the needs of male victims.

Likewise, the Commission's report for UNCAT also did not report accurately on men’s rights issues. It recommended discriminating against men by putting fewer women in prison. Women already have more favourable treatment in the justice system.14 15 16For example, women are more likely to be filtered out of the justice system as every natural attrition point.17 Historically, it is men who have be most disadvantaged by the justice system,18 so advocating for better treatment for women increases this discrimination.

The Commission’s UNCAT report also recommenced using gendered language that excludes male victims of domestic violence. This creates additional barriers for male victims who need help.

3.2National Plan of Action

The Human Rights Act 1993 requires the Commission to develop a National Plan of Action(NPA).19 The UN has set some for the requirements for the plan20:

1. The National Plan of Action must have appropriate strategies to ensure equal enjoyment of rights between women and men21.
2. These strategies should systematically identify policies and activities to protect, respect and fulfil the equal enjoyment of rights between men and women22.

The commission does not meet these requirements because their National Plan of Action does not have any strategies for ensuring men have equal enjoyment of their rights with women. The NPA identifies women’s human rights issues, but does not identify any men’s human rights issues. This means the Commission is not meeting the requirements of the Human Rights Act.

4Accountability

The Human Rights Commission says it wants to be a human rights exemplar, and that it will do the things it asks others to do. One of the things it asks of others is accountability.The Human Rights Commission defines accountability as:23

1. monitoring
2. independent review & a robust complainants mechanism
3. redress

Unfortunately, the Human Rights Commission has not implemented any of these things in its own system. For example, it has never done a review to check that it is meeting its obligations under the Human Rights Act 1993 and does not have a robust procedure to deal with complaints against the Human Rights Commission.

Although the Human Rights Commission has some accountability to the government, that is limited in its effectiveness. A government that has too much influence over the Human Rights Commission will be accused of trying to hide from human rights scrutiny and face negative political consequences. An independent accountability mechanism would allow the public to trust that the Human Rights Commission is doing a good job and not committing any human rights violations or discrimination itself.

5Government obligations

The Government has obligations under international human rights law to ensure equal enjoyment of rights between men and women (for example, article 3 in both CCPR and ICESCR). In addition to ensuring women have equal rights, it means ensuring men also have equal rights.

Additionally, “National human rights institutions enable States to meet their international responsibility ‘to take all appropriate action’ to ensure that international obligations are implemented at the national level”.24

If the Human Rights Commission is not providing proper monitoring and advice to the government then the government cannot meet its obligations.

Therefore, the government must ensure the Human Rights Commission is doing its job properly, by:

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• ending discrimination against men and boys and treating the human rights of men and boys as equally important to the rights of women and girls; and
• following best practice as described above; and
• meeting it statutory obligations under the Human Rights Act with regards to monitoring and the NPA; and
• meeting its own accountability recommendations.

6Suggested Questions:

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1. What proactive steps is the Commission taking to include the rights of men and boys in their work?
2. When will the Commission perform a review to ensure it is meeting the all of the requirements of the Human Rights Act?
3. Does the Commission support and independent audit of the Commission to ensure it is doing it job properly?

I am happy to answer any questions you may have.

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1Manual on Human Rights Monitoring – Chapter 15: Integrating gender into human rights monitoring — Untied Nations, 2011

2Integrating a Gender Perspective Into Human Rights Investigations – Guidance and Practice — United Nations, 2018

3Economic, Social and Cultural Rights – Handbook for National Human Rights Institutions— United Nations, 2005

4Manual on Human Rights Monitoring – Chapter 15: Integrating gender into human rights monitoring – page 4

5Integrating a Gender Perspective Into Human Rights Investigations – Guidance and Practice — United Nations, 2018 – page 58

6Economic, Social and Cultural Rights – Handbook for National Human Rights Institutions— United Nations, 2005 – page 58

7‘Missing men’: The politics of gender analysis – Paul Callister, 2009

8Economic, Social and Cultural Rights – Handbook for National Human Rights Institutions— United Nations, 2005 – page 58

9Integrating a Gender Perspective Into Human Rights Investigations – Guidance and Practice — United Nations, 2018

10Manual on Human Rights Monitoring – Chapter 15: Integrating gender into human rights monitoring – page 4

11Human Rights Act 1993, Section 5 (2) The Commission has, in order to carry out its primary functions under subsection (1), the following functions: …(kc) to promote and monitor compliance by New Zealand with, and the reporting by New Zealand on, the implementation of international instruments on human rights ratified by New Zealand:

12International Covenant on Economic, Social and Cultural Rights. Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.International Covenant on Civil and Political Rights. Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

13Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights – General comment No. 16 - Paragraphs 40, 41 and 42:

14Does Gender Really Matter? Criminal Court Decision Making in New Zealand. Samantha Jeffries – New Zealand Sociology Volume 17 Number 1 2002

15Disparities in police proceedings and court sentencing for females versus males who commit sexual offences in New Zealand – Patterson, Hobbs, McKillop & Burton (2019), Journal of Sexual Aggression, 25:2, 161-176,

16Controlling for amount of evidence, suspect's behaviours, seriousness of offences and other parameters, police were 1.6 times more likely to arrest males than females. They found that the bias is worsening and had started during the 80's. https://archive.ph/xz5UWThe Effects of Suspect Characteristics on Arrest: A Meta-Analysishttps://www.sciencedirect.com/science/article/abs/pii/S0047235214000890

17Criminal Justice in New Zealand – Julia Tolmie, Warren Brookbanks, 2007 p 302 – ISBN 0408718846, 9780408718844

18Bindler, A., & Hjalmarsson, R. The Persistence of the Criminal Justice Gender Gap: Evidence from 200 Years of Judicial Decisions.

19Human Rights Act 1993, Section 5 (2) The Commission has, in order to carry out its primary functions under subsection (1), the following functions: … (m) to develop a national plan of action, in consultation with interested parties, for the promotion and protection of human rights in New Zealand

20Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights – General comment No. 16 - Paragraphs 38 and 39

21Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights – General comment No. 16 - Paragraphs 32

22Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights – General comment No. 16 - Paragraph 33

23For example, Housing Inquiry First Report: Strengthening Accountability and Participation in the Housing System

24National Human Rights Institutions – History, Principles, Roles and Responsibilities