Human rights of older people in New Zealand

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The international human rights framework and domestic policy are the means by which the human rights of older people in New Zealand are protected. The key human rights issues facing older people in New Zealand encompass full participation within society, access to resources and a positive attitude to ageing. [1]

Contents

International law context

The human rights of older people are embedded within the covenants that comprise the International Bill of Rights. The Universal Declaration on Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. [2] Article 1 establishes that “All human beings are born free and equal in dignity and rights”. [3] Article 25(1) of the UDHR recognises the right of all to an adequate standard of living and where necessary social security, including in the event of old age. [4]

The twin fundamental human rights treaties , the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were ratified by New Zealand in 1978 and embed older persons’ human rights without specific reference to age. [5] For example, Article 25 of the ICCPR recognises participation rights for all people within the affairs of their own country and Article 26 equality of protection before the law without discrimination, although age is omitted from the specified grounds prohibited and must be read in under ‘or other status’. [6] ICESCR rights of particular interest to older persons include Article 6 and 7 work-related rights, Article 9 social security rights, Article 11 adequate standard of living rights, Article 12 rights pertaining to the attainment of mental and physical health and the Article 13 education rights. [7]

Under the UN human rights treaty framework it is the Convention on the Rights of Persons with Disabilities (CRPD), ratified by New Zealand in 2008, which may provide the most specific protection of older persons’ rights in New Zealand in circumstances where aging can be placed within the context of disability as disability is not specifically defined within the Convention. [8] The only core UN human rights treaty instrument to specifically reference age as a prohibited ground of discrimination is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) in Article 7 however this convention has not yet been ratified by New Zealand. [9]

In 1995 the Committee on Economic, Social and Cultural Rights (CESCR) stated that discrimination on the basis of age was not specifically incorporated in the ICCPR and ICESCR as it was not considered to be a significant issue at the time of drafting. [10]

A 2013 report by the Office of the United Nations High Commissioner for Human Rights identified ageing as a ‘global phenomenon’ and subsequently acknowledged that “While most international human rights instruments are applicable to all age groups, including older persons, a number of human rights issues that are particularly relevant to older persons have not been given sufficient attention either in the wording of existing human rights instruments or in the practice of human rights bodies and mechanisms. These include, inter alia, age discrimination, access by older persons to work, adequate health services and social protection, protection from abuse, violence and neglect, and long-term care.” [11]

The United Nations Principles for Older Persons is a ‘soft law’ instrument promoting respect for older people’s rights under the five themes of independence, participation, care, self-fulfilment and dignity. [12] New Zealand does not consider a discrete convention on older people’s rights and ageing is required given the current protections available within the existing soft and hard law human rights instruments. [13]

Statutory protection from discrimination in New Zealand

Section 19 of the New Zealand Bill of Rights Act 1990 (NZBORA) recognises the right to freedom from discrimination on the thirteen grounds identified in s21(1) of the Human Rights Act 1993 including age under s21(1)(i). [14] Section 5 of NZBORA recognises there may be justifiable limits to the rights and freedoms protected under the Act. [15] Neither Act defines discrimination which may be direct or indirect. [16]

New Zealand Positive Ageing Strategy

The New Zealand Positive Ageing Strategy was released in 2001 to align the efforts of community and local and central government stakeholders to enhance the wellbeing of older people through ten aspirational goals. The goals are

A comparative review described the Positive Ageing Strategy as a framework identifying areas where the human rights of older people could be promoted rather than an active plan about how to achieve these goals to improve the lives of older persons. [18]

Employment

The age of compulsory retirement in New Zealand was abolished in 1999 to accord with the Human Rights Act 1993 prohibition on age discrimination. [19] As a result older persons remain in paid employment at some of the highest rates in the OECD. [20] In 2014 22 percent of over 65s continued to work in a paid capacity making up just over 5 percent of the total labour force. Projections suggest that by 2036 the percentage of older employees will increase to 30 percent and equate to 13 percent of the total labour force. Voluntary work undertaken by older persons is recognised as providing both a significant direct economic contribution as well as an indirect contribution where, for example, the provision of child care by a grandparent, enables a parent to return to paid work. [21]

Two areas where older persons have faced challenges are finding employment in the first instance and access to training both to upskill and refresh capabilities. To assist the Human Rights Commission produced a publication to aid employers to recruit and retain older employees. Management continues to be an area where assistance for employers is needed. [22]

Age affects eligibility for government funding to access tertiary education and therefore impacts upon the opportunities older persons have to retrain. [23]

Since March 2015 the Employment Relations Act 2000 has supported flexible working arrangements for all employees. [24] Legislating flexibility normalises varied work hours and days, which for older persons may include staged retirement. [25]

Despite these gains discrimination within the workplace continues to impact upon the experiences of older persons. [26]

Income

Universal superannuation is available to New Zealand citizens and permanent residents from the age of 65. [27] A hardship rate of only 3 percent within the older persons population is attributed to high levels of unencumbered (mortgage free) home ownership rates. 9 percent of older persons live on low incomes in comparison to 16 percent of the wider population. The potential for an increased future risk of hardship amongst older persons is forecast given decreasing rates of home ownership and low incomes affecting contributions to Kiwisaver. [28]

See also

Related Research Articles

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Human rights are moral principles, or norms, for certain standards of human behaviour and are regularly protected as substantive rights in substantive law, municipal and international law. They are commonly understood as inalienable, fundamental rights "to which a person is inherently entitled simply because she or he is a human being" and which are "inherent in all human beings", regardless of their age, ethnic origin, location, language, religion, ethnicity, or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They are regarded as requiring empathy and the rule of law, and imposing an obligation on persons to respect the human rights of others; it is generally considered that they should not be taken away except as a result of due process based on specific circumstances.

<span class="mw-page-title-main">International Covenant on Civil and Political Rights</span> Treaty adopted by United Nations General Assembly in 1965

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. It was adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966 and entered into force on 23 March 1976 after its thirty-fifth ratification or accession. As of June 2022, the Covenant has 173 parties and six more signatories without ratification, most notably the People's Republic of China and Cuba; North Korea is the only state that has tried to withdraw.

<span class="mw-page-title-main">International Covenant on Economic, Social and Cultural Rights</span> Covenant adopted in 1966 by United Nations General Assembly resolution

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly (GA) on 16 December 1966 through GA. Resolution 2200A (XXI), and came into force on 3 January 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to all individuals including those living in Non-Self-Governing and Trust Territories. The rights include labour rights, the right to health, the right to education, and the right to an adequate standard of living. As of February 2024, the Covenant has 172 parties. A further four countries, including the United States, have signed but not ratified the Covenant.

Economic, social and cultural rights (ESCR) are socio-economic human rights, such as the right to education, right to housing, right to an adequate standard of living, right to health, victims' rights and the right to science and culture. Economic, social and cultural rights are recognised and protected in international and regional human rights instruments. Member states have a legal obligation to respect, protect and fulfil economic, social and cultural rights and are expected to take "progressive action" towards their fulfilment.

<span class="mw-page-title-main">Human rights in Hong Kong</span> Rights enjoyed by citizens in China

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The right to property, or the right to own property, is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically heavily constrained insofar as property is owned by legal persons and where it is used for production rather than consumption. The Fourth Amendment to the United States Constitution is credited as a significant precedent for the legal protection of individual property rights.

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<span class="mw-page-title-main">Human rights in New Zealand</span> Overview of the observance of human rights in New Zealand

Human rights in New Zealand are addressed in the various documents which make up the constitution of the country. Specifically, the two main laws which protect human rights are the New Zealand Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. In addition, New Zealand has also ratified numerous international United Nations treaties. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the indigenous population.

The Cook Islands are 15 small islands scattered over 2 million km squared of the South Pacific. According to the latest census, the nation has a total population of approximately 18,000 people. Spread in population between the mainland capital, Rarotonga, and the Outer Islands mean inequality in terms of delivery of public services. Internal migration between Rarotonga and the Outer Islands is relatively high due to lack of schooling and employment opportunities, and increased living standards and availability of medical and educational services in Rarotonga.

The right to sexuality incorporates the right to express one's sexuality and to be free from discrimination on the grounds of sexual orientation. Although it is equally applicable to heterosexuality, it also encompasses human rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people, and the protection of those rights. The right to sexuality and freedom from discrimination on the grounds of sexual orientation is based on the universality of human rights and the inalienable nature of rights belonging to every person by virtue of being human.

The right to adequate clothing, or the right to clothing, is recognized as a human right in various international human rights instruments; this, together with the right to food and the right to housing, are parts of the right to an adequate standard of living as recognized under Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to clothing is similarly recognized under Article 25 of the Universal Declaration of Human Rights (UDHR).

Local government bodies in New Zealand have responsibilities under the Local Government Act 2002 (LGA) to perform a wide range of functions, and provide a wide range of services to the communities they represent. There is not an explicit focus on human rights in New Zealand local government, or any direct reference to human rights under the LGA. Local bodies in New Zealand are required to act in a way that is consistent with the rights guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA). Internationally there is growing consideration of how local government does and could promote and protect fundamental rights.

Structural discrimination occurs in a society "when an entire network of rules and practices disadvantages less empowered groups while serving at the same time to advantage the dominant group".

Labour rights in New Zealand are largely covered by both statute, particularly the Employment Relations Act 2000, and common law. The Ministry of Business, Innovation and Employment carries out most of the day to day administrative functions surrounding labour rights and their practical application in the state.

As prescribed in the Constitution of Tokelau, individual human rights are those found in the Universal Declaration of Human Rights and reflected in the International Covenant on Civil and Political Rights. When exercising these rights, there must be proper recognition of the rights of others and to the community as a whole. If an individual believes their rights have been breached they may go to the Council for the Ongoing Government who may make any appropriate order to protect that individual’s rights. There have been no such complaints to date.

The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognised in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

Disability rights are not specifically addressed by legislation in New Zealand. Instead, disability rights are addressed through human rights legislation. Human rights in New Zealand are protected by the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. New Zealand also signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2008.

The proposed Convention on the Rights of Older Persons (UNCROP) is likely to be the next major human rights treaty adopted by the United Nations. The proposed treaty will seek to remedy the fragmented human rights structure for Older Persons, and will focus on reaffirming critical human rights which are of concern to older persons. The focus of the treaty will be persons over 60 years of age, which is a growing demographic worldwide due to increased population ageing. The treaty follows from the success of the United Nations Convention on the Rights of the Child which has seen near universal acceptance since 1989. Where the UNCRC focuses on the rights of younger persons, the UNCROP will address those who form the older portion of society, who according to United Nations reports, are becoming increasingly vulnerable as a group without applicable normative standards of human rights law. Support for a Convention is becoming increasingly popular, as human rights groups including the Committee on Economic, Social and Cultural Rights (CESCR), HelpAge International, the Committee on the Elimination of Discrimination against Women, the International Labour Organization, and many other NGOs and states have expressed support for a universal instrument. A raising number of NGOs from across the world have joined forces in advocating for a Convention in the Global Alliance for the Rights of Older Persons (GAROP) which has been set up out of the need to strengthen the rights of older persons worldwide. With population ageing, the human rights of the growing number of older persons have become an increasingly important issue. Among the human rights issues faced by older persons are ageist attitudes leading to discrimination, exclusion and constraints on the legal capacity, autonomy and independent living of older people. Existing human rights violations have been further exacerbated and put on the spotlight by the COVID-19 pandemic. Older people have been denied access to health services and became prone to physical and social isolation. The stigmatisation of older people and ageist images of older persons have also become more evident. The debate surrounding the convention focuses on the implementation and safeguarding of older persons’ human rights aiming to set normative standards of human rights for older persons in an international legally binding instrument. An underlying common factor and root cause of many of human rights violations experienced by older persons, along with its ubiquitous, prevalent, and surreptitious nature, is ageism. Ageism, as defined by the World Health Organization, refers to the stereotypes, prejudice and discrimination towards others or oneself based on age. A UNCROP would go a long way to tackle ageism. Individual relationships generally fall outside of current human rights law, which seeks to present standards of relations between states and individuals. Therefore, it has been suggested that the proposed human rights convention for older persons ought to be drafted as an anti-discrimination convention. However, this would not be consistent with other multilateral human rights conventions such as the ICCPR and ICESCR which set normative standards.

Fair trade is where a farmer or craftsperson is paid a fair price for their product, one that represents its true worth, not just the lowest price that it is possible to pay. This is a price that covers the cost of production and enables the producer to live with dignity. Fair Trade New Zealand is an organisation that was launched in 2005 which supports fair trade by ensuring that farmers and workers' rights are not exploited. According to Oxfam New Zealand, there are several companies to support fairly traded goods from, which are exported to New Zealand. From 2013-2014 there were 42 Fair Trade Licensees and Traders in New Zealand. From 2015-2016 this number rose to 54 Fair Trade Licensees and Traders in New Zealand. Gwen Green, Oxfam's Engagement Director, says: "when farmers are paid fairly for their products, we see people able to make real improvements to their lives and their communities. Producers who used to struggle to feed their families are able to give their children an education, and communities can build schools and develop businesses. It is one of the smart solutions to poverty". In 2009, Wellington became the first fair trade capital city in the Southern Hemisphere. In 2017, Whangarei was recognised by the Fair Trade Association of Australia New Zealand as being one of four fair trade councils in New Zealand, and the first fair trade district in New Zealand.

References

  1. ↑ Office for Senior Citizens Towards A Society for All Ages: New Zealand Positive Ageing Strategy – Goals and Key Actions (Ministry of Social Development, April 2001)
  2. ↑ OHCHR.org
  3. ↑ Universal Declaration of Human Rights GA Res 217A, III, art 1
  4. ↑ UDHR Article 25
  5. ↑ State ratification dates
  6. ↑ ICCPR
  7. ↑ ICESCR
  8. ↑ CRPD
  9. ↑ ICMW
  10. ↑ Marthe Fredvang and Simon Biggs ‘The rights of older persons: protection and gaps under human rights law’ at 10, Social Policy working paper no.16, The Centre for Public Policy 2012, ISBN   978-1-921623-34-9
  11. ↑ Office of the High Commissioner for Human Rights Normative standards in international human rights law in relation to older persons (United Nations, Analytical Outcome Paper, 2012 at 3)
  12. ↑ United Nations Principles for Older Persons GA Res 46/91, A/RES/46/91 (1991)
  13. ↑ Marthe Fredvang and Simon Biggs ‘The rights of older persons: protection and gaps under human rights law’ at 13, Social Policy working paper no.16, The Centre for Public Policy 2012, ISBN   978-1-921623-34-9
  14. ↑ Sylvia Bell and Judy McGregor ‘Human rights law and older people’ in Kate Diesfeld and Ian McIntosh (eds) Elder Law in New Zealand at 184
  15. ↑ NZBORA 1990
  16. ↑ Sylvia Bell and Judy McGregor ‘Human rights law and older people’ in Kate Diesfeld and Ian McIntosh (eds) Elder Law in New Zealand at 185
  17. ↑ Office for Senior Citizens Towards A Society for All Ages: New Zealand Positive Ageing Strategy – Goals and Key Actions (Ministry of Social Development, April 2001)
  18. ↑ Judith Davey and Kathy Glasgow "Positive Ageing - A Critical Analysis" (2006) 2 (4) Policy Quarterly 21
  19. ↑ "Retirement age". New Zealand Government. 2 October 2020. Retrieved 7 March 2021.
  20. ↑ New Zealand Human Rights Commission's Response to the Human Rights of Older Persons
  21. ↑ Office for Senior Citizens, 2014 Report on the Positive Ageing Strategy, April 2015
  22. ↑ New Zealand Human Rights Commission
  23. ↑ StudyLink
  24. ↑ s69AA Employment Relations Act 2000
  25. ↑ Office for Senior Citizens, 2014 Report on the Positive Ageing Strategy, April 2015
  26. ↑ New Zealand Human Rights Commission's Response to the Human Rights of Older Persons
  27. ↑ Work and Income
  28. ↑ Office for Senior Citizens, 2014 Report on the Positive Ageing Strategy, April 2015
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