Incorporating the CRC in New Zealand

Summary

INTRODUCTION

In November 2019, on the occasion of the 30th anniversary of the United Nations Convention on the Rights of the Child (hereinafter ‘the Convention’), New Zealand’s Prime Minister, the Rt. Hon. Jacinda Ardern, signalled her government’s intention to recommit to the Convention. Despite being an early signee of the Convention, it is only in recent years that New Zealand has seen progress on partial incorporation and implementation measures and may be said to trail behind other comparable jurisdictions in this respect. This chapter will first discuss where the Convention sits in New Zealand’s constitutional structure, particularly the context of the treaty-based partnership with Māori, the tangata whenua (indigenous people). It will trace the use of the Convention by the judiciary, which has strengthened in frequency and force in recent years. Recent legislative reforms have partly incorporated the Convention in some spheres (particularly welfare, care and child justice), and more extensive non-legal measures of implementation and monitoring mechanisms have been implemented. Yet, the profile of the Convention remains low amongst the public and the practitioner and policy professions, and issues such as a perception of the Convention being individualistic and Western-centric persist.

CONTEXT

According to the last census, there are over 1.1 million children in New Zealand, comprising approximately 23 per cent of the population. Approximately 70 per cent of the population identifies as being of European ethnicity, while Māori account for 16.5 per cent, those of Asian ethnicity for 15 per cent and Pacific peoples for 8 per cent.

New Zealand has not directly incorporated the Convention, and any partial incorporation and non-legal measures of implementation discussed in this chapter must be placed within the context of complex unwritten constitutional arrangements and a relatively weak system of human rights protection.

HUMAN RIGHTS AND THE CONSTITUTION

Unlike other jurisdictions which are discussed in this book, New Zealand/Aotearoa does not have a written constitution. In the introduction to the Cabinet Manual, Sir Kenneth Keith describes the constitution thus:

The New Zealand constitution is to be found in formal legal documents, in decisions of the courts, and in practices (some of which are described as conventions). It reflects and establishes that New Zealand is a constitutional monarchy, that it has a parliamentary system of government, and that it is a democracy.