Human rights are fundamentally important in any society. They recognise that every person, regardless of who they are or where they live, has inherent value and dignity. They include a wide range of rights and freedoms to protect against abuse, ensure people have equality and autonomy, and can access what they need for their wellbeing. Human rights are inalienable, meaning they cannot be taken away. The United Nations Declaration of Human Rights recognises that over the course of history disregard and contempt for human rights has resulted in barbarous acts which have outraged the conscience of humankind.
International law recognises human rights in a range of treaties that the New Zealand Government has signed, and the right to redress for violations of human rights. Failing to provide effective redress may itself amount to a human rights violation. Redress must be accessible and effective, and take into account special vulnerabilities. Numerous organisations emphasised to us the range of Aotearoa New Zealand’s human rights obligations, and we are in no doubt that international law requires redress for survivors of abuse in care, and that the nature and provision of that redress must also comply with human rights obligations.
The United Nations Human Rights Committee says redress or reparation generally entails compensation, but it can also involve restitution, rehabilitation, public apologies, memorials, guarantees of non-repetition (which can include law changes), and bringing perpetrators to justice. The United Nations Committee Against Torture has adopted a similar definition.
The United Nations Declaration on the Rights of Indigenous Peoples covers a range of human rights as they apply to indigenous peoples, including rights to life, physical and mental integrity, liberty and security of person, and the right to live as distinct peoples free from acts of violence, including the forced removal of children. The Waitangi Tribunal has said the declaration has “significant normative weight” and can be considered when assessing the Crown’s obligations under te Tiriti o Waitangi.
The declaration also says indigenous peoples have the right to participate in decision-making on matters affecting their rights, and also the right to develop their own decision-making institutions. Article 19 says signatories should consult and co-operate in good faith with indigenous people through their representative institutions in order to obtain their free, prior and informed consent before adopting and implementing administrative or legislative measures that may affect them.
The United Nations Convention on the Rights of Persons with Disabilities sets out specific rights and obligations regarding redress for the abuse of disabled people and prevention of abuse. States must take all appropriate measures to promote the recovery, rehabilitation and social reintegration of those with disabilities who are victims of any form of abuse. Signatories must also have effective laws and policies to ensure they identify and investigate abuse against people with disabilities and, where appropriate, prosecute those responsible. In addition, they must provide information and education about how to avoid, recognise and report abuse.
Human rights law requires the process of obtaining redress to be accessible, which means ensuring effective support and assistance is available to survivors, including those with disabilities. The Convention on the Rights of Persons with Disabilities and the United Nations’ guidance on access to justice for people with disabilities highlight this point. Disabled people must have equal access to redress without discrimination and on an equal basis with others. This includes access to information, means of communication, physical environments and other facilities and services available to the public. It also includes access to lawyers and advocates trained to work with disabled people.
Any redress scheme needs to take account of barriers that may prevent disabled people from seeking redress or disadvantage them in the process. Disabled people must also be closely consulted and actively involved in decisions about redress legislation and policies that affect them.
Next: 1.5 Expectations of redress