About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.

Right to be Healthy

1. The Council agrees with the Human Rights Commission that people have a right to be healthy¹.  This right stems from Human Rights treaties including:
   1. Universal Declaration of Human Rights: Article 25(1)
   2. Convention on the Elimination of all Forms of Racial Discrimination: Article 5(e)(iv)
   3. International Covenant on Economic, Social and Cultural Rights: Article 12
   4. Convention on the Elimination of All Forms of Discrimination against Women: Articles 11(1)(f), 12 and 14 (2)(b)
   5. Convention on the Rights of the Child: Article 24
   6. Convention on the Protection of the Rights of all Migrant Workers and Members of their Families: Articles. 28, 43(e) and 45(c)
   7. Convention on the Rights of Persons with Disabilities: Article 25
      
2. Hauora is a taonga, and is therefore guaranteed by the crown under Te Tiriti o Waitangi.  Physical health is one of the four dimensions of hauora. By extension, the government guarantees all New Zealanders the right to be healthy under Te Tiriti.
   
3. Finally, our right is to be healthy if and as we choose, not an obligation to meet our government’s or anyone else’s standards for health.

The evidence brief does not support the proposal

4. The evidence brief fails to acknowledge that there is a human rights concern.
   
5. As the proposal seeks to limit our right to health, there is an obligation on the proposer to complete the Hansen test:²
   1. does the provision serve an objective sufficiently important to justify some limitation of the right or freedom?
   2. if so, then:
      1. is the limit rationally connected with the objective?
      2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
      3. is the limit in due proportion to the importance of the objective?
         
6. The Council’s assessment of the Hansen test is:
   1. No, the poorly articulated objective justifies no limitation.
   2. Having failed A, B is moot. However, for completeness:
      1. No, limiting access to health care is not rationally connected to ostensibly improving health.
      2. Doubly moot as the limit does not help to achieve the objective.
      3. It is irrelevant that the limit is proportional.

Discrimination on the basis of gender is illegal

7.  Section 21(1)(a) of the Human Rights Act 1993 prohibits discrimination on the basis of gender.
   
8. The Council agrees with Gender Minorities that the treatments being regulated are only being regulated for transgender people.  The proposal does not affect the same treatment for the same condition being given to cisgender people.
   
9. Therefore the Council opposes this proposal on the grounds that it violates the Human Rights Act. 

This consultation is totally inappropriate

10. The Council agrees with InsideOut that this consultation is “totally inappropriate”.
      
11. At the detail level the Council considers the consultation is being undertaken in bad faith. The survey questions themselves are biased and misleading.  The most obvious example is the fifth question, “how should puberty blockers be prescribed for gender affirming care?”  All of the options provided are to limit care.  There is neither an option to keep our current system, nor an option to make care more readily available.
    
12. More importantly, democracies do not hold consultations as to whether minorities should have their rights respected.  The Ministry should immediately halt this programme of work.

1. page 153 of https://www.hrc.co.nz/files/9714/2388/0506/HRNZ_10_Right_to_health.pdf ↩︎
2. NZBORA section 5 “Hansen Test”: Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [123] ↩︎