HUMAN RIGHTS IN NEW ZEALAND 20 1 0 All human beings are born free and equal in dignity and rights. Universal Declaration of Human Rights, Article 1 Introduction Tïmatatanga exercise by all persons, on an equal footing, of all rights and freedoms. Discrimination can be direct or indirect. ‘Direct discrimination’ occurs when an individual is treated less favorably than someone else in a similar situation, for a reason related to a prohibited ground. The principles of non-discrimination and equality are Direct discrimination also includes detrimental acts or fundamental to human rights law. They are referred to in omissions even where there is no comparable situation the International Covenant on Civil and Political Rights (for example, in the case of a woman who is pregnant). (ICCPR); 1 the ‘Indirect discrimination’ describes the situation where an International Covenant on Economic, Social and Cultural Rights (ICESCR); 2 and the international apparently neutral practice or condition has a dispropor- treaties on racial discrimination, discrimination against tionate, negative impact on one of the groups against women and the rights of refugees, stateless persons, whom it is unlawful to discriminate, and the practice or children, migrant workers and members of their families, condition cannot be justified objectively. 6 and persons with disabilities. 3 Other treaties require the elimination of discrimination in specific areas, such as guarantees equal and effective protection before, and of, International context Kaupapa ä taiao the law. The international instruments require states to ensure In 1989, the United Nations Human Rights Committee both formal and substantive equality. Formal equality is issued a general comment relating to discrimination under equal treatment before the law. It reflects the Aristotelian the ICCPR 5 that defined ‘discrimination’ in the covenant notion that, to ensure consistent treatment, like should be as: treated alike. 7 However, equal treatment does not always employment and education. 4 Article 26 of the ICCPR also ...any distinction, exclusion, restriction or ensure equal outcomes, because past or ongoing discrimi- preference which is based on any ground nation can mean that equal treatment simply reinforces such as race, colour, sex, language, religion, existing inequalities. To achieve substantive equality political or other opinion, national or social – that is, equality of outcomes – some groups will need origin, property, birth, or other status, and to be treated differently. It follows that not all different which has the purpose or effect of nullifying treatment will be considered discriminatory. As the UN or impairing the recognition, enjoyment or Human Rights Committee notes: 1 ICCPR, Article 2 2 ICESCR, Article 2 3 See the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention relating to the Status of Refugees; the Convention relating to the Status of Stateless Persons; the United Nations Convention on the Rights of the Child (UNCROC); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the Convention on the Rights Of Persons With Disabilities (CRPD); and the Convention Against Enforced Disappearances. The texts of the international human rights instruments are available on the website of the Office of the High Commissioner for Human Rights, accessible online at www.ohchr.org. The text of most of the instruments New Zealand has ratified can be found in Ministry of Foreign Affairs and Trade (2008), The New Zealand Handbook on International Human Rights (3rd ed), (Wellington: MFAT). 4 ILO Convention 111 concerning Discrimination in Respect of Employment and Occupation (1958); and the UNESCO Convention against Discrimination in Education 5 United Nations Human Rights Committee (1989), general comment 18, ‘Non-discrimination: Compilation of general comments and general recommendations adopted by human rights treaty bodies’ (UN Doc.HRI\GEN\1\Rev.1, para 26). 6 Committee on Economic, Social and Cultural Rights, general comment No.20: E/C.12/GC/20 (2 July 2009), para 8 7 Fredman S (2002), ‘Equality: Concepts and Controversies’, in Fredman, Discrimination Law (Oxford: OUP), p 7 Lynda Stoneham, a plaintiff in what has become known as the parents as caregivers case, with her daughter Kelly. The plaintiffs in this landmark discrimination case, had a resounding decision in their favour in the Human Rights Review Tribunal, however the decision has been appealed by the Crown. 27