Human rights and social policy in New Zealand.

• Author: Geiringer, Claudia

Abstract

This article aims to facilitate debate about the implications for New Zealand social policy making of taking a rights-based approach. It does so by exploring the sources and scope of New Zealand's international human rights obligations, particularly in relation to economic, social and cultural rights. It identifies a range of constraints on social policy making deriving from these obligations and suggests that explicit and systematic attention to these constraints constitutes the essence of a rights-based approach to social policy making. Finally, the article comments on the adequacy of existing processes and structures of New Zealand government for giving effect to a rights-based approach and makes some suggestions for how these might be modified.

INTRODUCTION

New Zealand has entered into extensive international commitments with respect to the protection and promotion of human rights. Those commitments are binding on New Zealand as a matter of international law. They encompass both "civil and political" rights (CP rights) and "economic, social and cultural" rights (ESC rights). The latter category in particular has profound implications for social policy.

Over the last few years there has been increased interest from both within and outside government in the impact of human rights on the policy-making process. There is, however, considerable uncertainty about what a rights-based approach to social policy might require. That uncertainty derives in particular from the difficulties that attend any attempt to establish with precision the scope and effect of New Zealand's obligations with respect to ESC rights.

Generally speaking, ESC rights have not been subject to the same extensive degree of standard setting that has attended the international regulation of CP rights and, accordingly, the language in which they are cast is often imprecise (Craven 1995:25-26). As well, the obligation placed on states under Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) is cast in relative rather than absolute terms. It requires the state to "take steps" to realise the rights "progressively" and "to the maximum of its available resources". As a consequence, the precise extent of the state's obligations with respect to ESC rights is both contestable and controversial. This problem is compounded by the absence of an established tradition of judicial or quasi-judicial elaboration of ESC rights, either in the domestic or the international setting (Chapman 1996:30-31).

In 2003 the Human Rights Commission commissioned the authors, through the New Zealand Centre for Public Law, to produce an issues paper on the implications of applying a rights-based analysis to the development of social policy in New Zealand (Geiringer and Palmer 2003). This article is a revised and abbreviated version of that paper. It aims to facilitate debate about the implications for New Zealand social policy making of taking a rights-based approach.

Following a brief description of the New Zealand social policy environment, the article embarks on a conceptual discussion of what a "human right" is and how a "rights-based" focus might thus differ from a focus on, say, human need. Against that background, the article explores the sources and scope of New Zealand's international human rights obligations as they relate in particular to social policy. The article then develops a particular focus on ESC rights, dissecting the nature of the state's protective obligation under the ICESCR and identifying a range of constraints on social policy, some substantive and some procedural. Finally, the article reviews the adequacy of existing processes and structures of government for giving effect to human rights and makes some suggestions for how these might be modified.

We do not attempt in this article to justify from first principles the legitimacy or utility of using a rights-based framework to conceptualise the state's responsibilities. We are spared the necessity of engaging with the issues on that level by the simple fact that a rights-based approach to the development of social policy is required of the New Zealand government as a matter of binding international law. It is thus incumbent on New Zealand policymakers to engage with the content of relevant treaties and to address the rights contained in them in the process of policy formation. Quite simply, this article aims to provide assistance with, and to provoke discussion of, how to do so.

SOCIAL POLICY MAKING IN NEW ZEALAND

In this article, social policy is understood to be the principles and mechanisms by which government seeks to affect the development of society, particularly in relation to health, education and welfare. This definition is somewhat narrower than the definition used by the Ministry of Social Development in The Social Development Approach (2001:1), in which social policy is defined to include "all policy that has an influence on desirable social outcomes". We do not, however, consider that the difference has material implications for the analysis that follows, nor that it is necessary in this context to attempt to resolve the vexed question of what, precisely, "social policy" means (see Baldock et al. 2003:4).

There has been a recent movement within New Zealand government from a "social welfare" to a "social development" approach to social policy (Shaw and Eichbaum 2005 Chapter 15). This shift was signalled by the release of the government statement Pathways to Opportunity: From Social Welfare to Social Development in June 2001 (New Zealand Government 2001) and of an associated social policy framework in August 2001 (Ministry of Social Development 2001). Key elements of this framework were that it:

* followed the Royal Commission on Social Policy (1988) in using the notion of "wellbeing" to formulate desirable social outcomes that are the goals of social policy

* noted that goals of social policy are about improving both the level and distribution of wellbeing

* noted that "The New Zealand literature is marked by a strong assertion that an important aspect of the goals of social policy is a guarantee of some adequate level of wellbeing for all people", and that the Royal Commission had concluded that social, legal and political freedoms as well as aspects of culture and identity are relevant dimensions of an adequate level of wellbeing

* used a "social investment" approach to social policy that considers the impact of government policies and interventions on social policy goals, including the impact on all desired outcomes.

The Ministry's framework is comprehensive and identifies a wide range of aspects of "wellbeing", relevant goals and desirable social outcomes. It includes reference to a principle regarding the "distribution" of wellbeing: "that all individuals enjoy some basic minimum level of wellbeing" (paragraphs 21-24, citing Sen 1999).

What is not explicit in the Ministry's framework is use of the language or perspective of human rights. That is not to say that a human rights approach is completely absent from the New Zealand policy environment. Since the enactment of the New Zealand Bill of Rights Act 1990, government officials have increasingly been forced to confront the implications of human rights commitments for policy making, and this is reflected in Cabinet's decision-making processes (which are further discussed below, under the subheading "Executive Government"). Despite this, there remains considerable uncertainty within government as to what a rights-based approach to social policy might require and how it might differ from an approach that focuses on, for example, "wellbeing" (Human Rights Commission 2005: paragraph 7.4). This uncertainty attaches in particular to the policy implications of ESC rights, which are not protected by the Bill of Rights Act 1990 and, for the reasons already given, raise particular difficulties of scope and application.

WHAT IS A "HUMAN RIGHT"?

In essence, a rights-based approach to policy is one that ensures that policy is formulated within the parameters set by New Zealand's human rights obligations, as found in domestic and international law. Before examining that body of law, however, it is helpful to think more generally about what is meant by a "human right" and, in particular, how a focus on "rights" might differ conceptually from, for example, the focus on "needs" that is invited by the yardstick of "wellbeing".

Needs-based and rights-based approaches inevitably have much in common. However, the language of "rights" emphasises particular dimensions of the interests, entitlements and duties that are at stake. Thus we say that "John needs food" if we believe that in the absence of food, John's wellbeing will suffer in some way that we regard as fundamental. We are identifying the predicament (neediness) that John will face if deprived of food (Waldron 1996:105). A similar assessment of John's neediness may well also underlie the statement "John has a right to food". The idea of rights, however, complements the idea of neediness in a number of respects.

First, the language of "rights" is the language of demand or entitlement. To say that "John needs food" tells us nothing about the moral or legal obligations of others in relation to John's need. In contrast, the statement "John has a right to food" means that someone else (in the case of international human rights law, the state) has a duty to ensure that John's right is protected (White and Ladley 2005:6, Waldron 1996:94).

This also has implications for how we view the rights-bearer. To say that John "needs" food is to present John as a passive victim and potential recipient of charity. To say that John has a "right" to food is to conceptualise John as a holder of entitlements. The language of rights is thus the language of empowerment. John is cast as a self-sufficient and independent rights-bearer whose assertion of...