Submission to the Presiding Judge, Auckland High Court
The Appeal to be heard on 28 June 2010 at 11.45 am
Human Rights Council Inc. (New Zealand)
10D/15 City Rd.
Ph: (0064) (09) 940 9658.
Next Monday the Auckland High Court will be hearing my appeal against a sentence in the Wellington District Court on 2 February 2010 where I was convicted and fined $200 for failing to file an election expenses return after standing as a candidate for the Human Rights Party (1) in Auckland Central.
The failure to file an election expenses return constitutes a breach of the Electoral Finance Act 2007. The case of Anthony George Ravlich vs Ministry of Justice will be heard at the Auckland High Court on 28 June 2010 at 11.45pm.
I consider I have a ‘reasonable excuse’ (a defense under the above Act) for failing to file an election expenses return because the party, the council and myself have been subjected to censorship by the mainstream media which prevented me from fully informing mainstream society of the ‘tragedy’ at the lower levels of society which I witnessed first hand over a period of twenty years but which society is still not facing up to.
Essentially my action came down to a matter of principle outlined in my book (see below): that the poor should have a voice of their own in the mainstream media so they can influence the democratic majority.
The last time I appeared in court was following a protest in April 1991 because of the severe benefit cuts of that year. The mainstream media, apart from the earlier years, ignored the economic, social and cultural rights I was promoting and this continued even when the Human Rights Council Inc.( New Zealand) was set up in 2001 despite sending many news/opinion articles.
While the Auckland Central Leader did write an article on me during the 2005 election in the 2008 election the same paper only wanted a photograph and despite my request was not prepared to inform people of what the party stood for. Also it would not allow me to have a photograph with my recently released book which presented the ethical platform of the party.
It was very hard to explain the tragedy during this time because many New Zealanders were dismissive of what they saw as extremist views particularly as their reality was quite different. I spent about 12 years ringing talkback about three times per week, writing many articles on the internet and a book (see below) but without the support of the mainstream media these approaches have considerable limitations. New Zealanders, by and large, are often overawed by the power and wealth of those higher up the social scale (although I consider this to be to a very large extent an illusion) and take little notice of voices from the fringes of society.
However many people are now becoming more aware as the emerging very disturbing social statistics indicate the extremes to which the State went compared to other countries which includes third world diseases, some double the Australian rates. New Zealand has the highest rates of suicide in the OECD for youth aged 15-19. Overall child mortality is also higher than the OECD average. Last June the head of social policy for the Organisation for Economic Cooperation and Development (OECD),Dr Monika Queisser, told a forum organised by the Government's Welfare Working Group yesterday how New Zealand was "out of step with other countries" with respect to child poverty (see a brief summary of the social statistics is at the end of this article).
I also found it very difficult to convey to people the very extreme nature of what was happening as I was part of it, living in boarding houses, a caravan, on a subsistence benefit and experiencing many of the same human rights violations the poor were. Showing any sign of anger in New Zealand meant anything you said was immediately dismissed. But it is extremely difficult not to get angry when faced with the extreme injustice of social class discrimination. Often many of those at the bottom of the social scale would find themselves facing the mental health establishment, on one hand, and the criminal justice system, on the other. Whether you were in a state of dependency or attempting to achieve you were still often suicidal – the former was to some extent a line of least resistance but it was because they did not want the anger induced by rejection to affect their friendships – isolation can easily lead to mental illness.
It was not uncommon that the only times they received help from the establishment was when they had lost all dignity. And rights omissions (see below) meant they had little support for their voices from human rights law and little escape as the independent sphere whereby they could pursue their economic and social development was severely cut back with much production now taking place in China and India. These people, usually on subsistence benefits, were often unable to join the mass exodus overseas (in a population of 4.3 million, more than 700, 000 New Zealanders now live overseas and there are now 106, 910 more individuals ‘too sick to work’ than in 1985 - see social statistics below).
My book, ‘Freedom from our social prisons: the rise of economic, social and cultural rights’, by a major publisher, Lexington Books, was selling internationally when it was released prior to the 2008 election and the mainstream media in Auckland were also provided with a list of intellectual support including Noam Chomsky and Yash Ghai, honorary professor in international Law at Hong Kong University and on a number of international bodies from whom I received much support over the years. Rosslyn Noonan, the Chief Human Rights Commissioner, has told me that she knows no one who knows more in the field than myself. I consider that this is because ‘I lived it’. And even now that I have received further international recognition with the book on the United Nations Practitioner’s Portal on HRBA Programming http://hrbaportal.org/?p=528) and the International Centre for Civil Society Law (Newsletter 2008) the book is still to be reviewed in this country.
Now a recognized authority in the field, and given my first hand experience, I consider that my articles should have been included in the mainstream media. My university qualifications are an MA in political studies, Diploma in Criminology (Hons) and a BSc (plus two masters papers) in Statistics having trained as a Statistical Researcher in the Social Sciences (each time I finished a degree I had high hopes of employment but had no success). In 20 years of promoting human rights my opinion has never been sought by the establishment on any specific issue.
New Zealand, in my view, has been subjected to massive social class discrimination which is all pervasive yet virtually invisible. I consider that because people do not know the true causes of many of the problems they are experiencing leads to loss of self-control and coming to the notice of the authorities. This is because the prohibited ground of social class discrimination has been excluded from New Zealand human rights law. It is also to some extent culturally ingrained (it is understood the Maori elite discriminate on a similar ground of descent which, in my view, explains why Maori are over represented in the statistics and as the ‘under class’ on the streets of the main centers. It is, in my view, because they are subject to this discrimination to some extent from both cultures). In addition, unlike Britain, social class is not officially recognized in New Zealand (see my articles).
The New Zealand State has acknowledged that the prohibited ground of social class discrimination has been excluded from New Zealand human rights law. On 11 January 2010 in the ‘Replies of the Government of New Zealand to the List of Issues (CCPR/C/NZL/Q/5) to be taken up in connection with the consideration of the fifth periodic report of New Zealand (CCPR/C/NZL/5)’ to the United Nations Human Rights Committee in March 2010 the New Zealand Government stated it has omitted nondiscrimination on the grounds of social origin (defined as social status at birth, with this discrimination commonly called social class discrimination): The prohibited grounds of discrimination in the Human Rights Act 1993 encompass sex, marital status, religious and ethical beliefs, colour, race, ethnicity, disability, age, political opinion, employment status, family status and sexual orientation, but do not expressly cover language, social origin [my underline] and property, as provided for in the Covenant (CCPR/C/NZL/Q/5/Add.1).
New Zealand maintains a ‘good human rights image’ by being selective as to which human rights it includes in New Zealand human rights law. In the Concluding Observations regarding New Zealand’s human rights record (which deals with the civil and political rights in NZ human rights law) which was reviewed on the 25 March 2010 by the UN Human Rights Committee the latter expressed its concern that “the Bill of Rights Act 1990 (BORA) does not reflect all Covenant rights’ and that “The State party should enact legislation giving full effect to all Covenant rights….” (7, CCPR/C/NZL/CO/5).
In my view, these rights exclusions are designed to further the hegemony domestically and internationally of the class-orientated bureaucratic elite, heading a dominant public sector ‘tribal’ middle class, ‘tribal’ because they are now very largely bereft of their universal liberal principles. This bureaucratic elite is legitimized by human rights law but as my work shows this, because of the human rights omissions, it is very discriminatory. The bureaucratic elite is supported by the like-minded global elites at the United Nations and successive New Zealand governments. They ensure the dominance of ‘tribal elites’ in parliament and society involved, by consensus, in exercising social class discrimination over the independent people in New Zealand to ensure they cannot be held to account and to create a less threatening dependent society - see our council’s submission to UN Human Rights Committee’s review of New Zealand’s human rights record in March, 2010, www.scoop.co.nz/stories/HL1003/S00178.htm). Also see my article, ‘Global Systematic Discrimination against the Poor’. It can be found on the following link, www.scoop.co.nz/stories/HL0909/S00041.htm
Carolin Schleker, Associate Human Rights Officer, UN Office of the High Commissioner for Human Rights, on March 19, 2010, stated that our submission was sent to the ‘country rapporteur’. She added that a group of New Zealanders (it is unsure whether this was an official meeting) attending the UN Human Rights Committee review were questioned regarding the exclusion of the ground of non-discrimination with respect to social origin from our domestic human rights law. So our government is aware of this rights omission.
This social class discrimination took New Zealand from a relatively classless society to a class-based society. A highly respected New Zealand Historian Professor Keith Sinclair wrote in 1969 that although New Zealand was not a classless society, "it must be more nearly classless... than any advanced society in the world" (Sinclair Keith (1969), A H. 2nd edition, p285, A History of New Zealand).
I adopted the universal declaration of human rights as my ethical belief in 1991 and have been promoting human rights ever since. This ethical belief also includes economic, social and cultural rights. The latter defines poverty in human rights terms but these rights are not included in New Zealand human rights law – usually it is just described in social justice terms which not being claims to rights cannot be dealt with by a court.
As a consequence I consider my ethical belief, that of the council and the ethical platform of the Human Rights Party were subject to social class discrimination. However, as the latter is omitted from human rights law it is unlikely to be dealt with by a court (although it may be supportive of my defense). However, the constant exclusion of my ethical beliefs and the ethical platform of the party, in my view, constitutes discrimination on the grounds of ethical belief which is covered by the Human Rights Act 1993, 21(1)(d), ‘Ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions’. But however ethical belief is defined it would seem very strange for any discrimination to be permitted of my beliefs as the title to the Human Rights Act 1993 states: ‘An Act…. to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights’. The latter includes economic, social and cultural rights and generally reflects the universal declaration of human rights.
However, although economic, social and cultural rights are not in human rights law there is an exception in New Zealand so these rights should not have been ignored even though organizations such as the mainstream media usually rigidly adhere to human rights as defined by the State. Section 5(a) of the New Zealand Human Rights Act requires the Commission to educate New Zealanders in both the civil and political rights in New Zealand human rights law and also economic, social and cultural rights. But according to the Commission successive governments have failed to fund this section so I was only following a law which successive governments failed to implement.
The importance of human rights education, human rights law not being enough in my view, was expressed in the ‘Human Rights Committee Concludes Consideration of New Zealand’s Fifth Report’ (concerning ‘Questions Posed on Treatment of Maori, Asylum Seekers, Human Trafficking’) when Simon Power, New Zealand’s Minister of Justice, who led the delegation, in concluding the two-day discussion, emphasized that ‘the challenge for his and any Government was to ensure human rights were pertinent in the daily lives of citizens and, in doing so, bolster the application of internationally-agreed rights instruments, including the Covenant. New Zealand must work hard so that its citizens did not believe such treaties -- and discussion of their application -- were the remit of high academic and international bodies’.
The above report was headed: “Delegation: “We are Determined, as a Country, to Make Human Rights Relevant in the Daily Lives of New Zealanders and of Citizens around the World”.
Without such education liberal rights, apart from those groups with the time, resources and access to human rights lawyers, are largely irrelevant for many people, especially in a user-pays society, even though in human rights law. As one former human rights commissioner said to me: “The poor stay away in droves’.
Furthermore, the New Zealand Human Rights Commission in February 2005 introduced the New Zealand Plan of Action for Human Rights which included economic, social and cultural rights. This action plan received very little coverage in the mainstream media and according to index New Zealand at the Auckland Public Library no mention was made of economic, social and cultural rights despite its historical relevance. The New Zealand delegation led by former PM Peter Fraser to the Great Debate at the United Nations in 1948 played major role in having these rights included in the universal declaration. Also when I made enquiries at the library of the Commission they could only show me articles on the action plan from internet news outlets.
In the Concluding observations of the UN Human Rights Committee in March 8-26, 2010 in its (C.) Principal subjects of concern and recommendations it states: (6.) ‘The Committee welcomes the adoption of a national action plan of human rights 2005-2010 by the New Zealand Human Rights Commission and notes the delegation’s statement that all Government agencies are asked to take the action plan into consideration when developing their policies and programs, but is concerned that the State party has not formally endorsed such a plan as Government policy. (art. 2)’. It adds: ‘The State party should engage in the development and the official adoption, as Government policy, of a national human rights action plan 2010-2015’.
In my opinion the inclusion of the above rights would have enabled New Zealanders to see some of the true causes of many of their problems as well as being able to hold the State to account and fight for their independence. Also it seems very unlikely that the international community would have isolated New Zealand for including these rights because they are just an extension of the liberal rights long supported by the West.
I consider that in a democracy the people have a right to be informed of new parties and their political/ethical platforms and this needs to be done through the mainstream media whereby the democratic majority is best informed. Human rights, such as the right to democracy, are owed to people because they are human not just because they may be wealthy and advertising is extremely expensive. This should have been recognized by the mainstream media. All that would have involved is a few paragraphs or brief mention in the mainstream media which could point people to the website. As it was nearly all people knew of the existence of the party was when they signed the ballot paper.
Two sections of the New Zealand Bill of Rights Act 1990 (BORA) support this view. I consider my right to impart information was blocked by the mainstream media. Section 14 states: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. And that this is particularly important in elections where voters need to be informed. Section 12 of the BORA states: “ Every New Zealand citizen who is of or over the age of 18 years—(a) Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and (b) Is qualified for membership of the House of Representatives.
As stated the book set out the ethical platform of the party and provided a very distinct alternative to that offered by the political parties in parliament. It was, in my view, very important that New Zealanders were given such a choice and still is. It promoted a more ethical ‘bottom-up’ emphasis to human rights and development, inclusive of the poor, together with an ethical globalization whereas successive governments had pursued, in my opinion, a political, ‘top-down’ approach as well as a globalization which discriminated on the basis of social class and was exclusive of the poor. The ethical approach envisages a firm bottom-line allowing big business to compete without exploitation and without China and India, with their vast supply of cheap labor, having an unfair advantage. The firm ‘bottom-line’ is an extension of the core minimum obligations of the State devised by the UN Committee on Economic, Social and Cultural Rights (See General Comment No.3) to also include civil and political rights as well as including the self-help, empowerment rights to development (including ‘bottom-up’ development), human rights education, ‘a voice for the poor’, non-discrimination and non-retrogression (i.e. making it difficult for the State to cut back on existing levels of rights attained). It would also include ‘freedom from hunger’ (many New Zealand children are going to school hungry – see social statistics below) with the State ultimately responsible to ensure this. While requiring further research New Zealand as a major food producer may have a role to play here. This is particularly relevant given the lack of political will, given the financial crisis, to achieve the Millennium Development Goals and the failure of the recently adopted Optional Protocol (OP) to the International Covenant on Economic, Social and Cultural Rights to include the core minimum obligations of the State. The latter would have been included under international human rights law whereas the Millennium Development Goals are more in the nature of liberal charity directed largely at the poorer regions of the world.
Because of the social class discrimination the poor are being discriminated against with respect to their individual liberal rights. In addition, such individual liberal rights as freedom of thought, conscience and expression needed for independent pursuit of truth and ‘bottom-up’ economic and social development have been made to a considerable extent redundant because of the severe cutback in the small/medium/ productive business sector. Instead we are seeing ‘collective thought’, ‘collective conscience’ and ‘collective expression’ or, in short, a mass conformity to a very discriminatory human rights agenda, leaving the people of New Zealand far more dependent on the State and the Corporations and dominated by essentially ‘tribal elites’. Just because liberal principles exist in law does not mean they exist in reality. The individuals in the ‘tribal elites’ are, in my view, now very alienated from society and themselves. This means they suffer from a considerable head/heart imbalance and desperately, in my view, need to focus on their holistic development and educate themselves in human rights. While the liberal elites around the world have largely failed to develop beyond liberalism now only a relatively small minority seem to have managed to ensure their liberal rights are universal. I consider these rights are in considerable jeopardy.
Chapter 5 of my book also shows how the global elites at the United Nations (which, in my opinion, did not do enough to fulfil its duty to uphold the universal declaration of human rights required by the UN Charter) have given considerable support to an interpretation of economic, social and cultural rights which because of its rights omissions (given that civil and political rights and economic, social and cultural rights are interdependent) have condoned the rights omissions in New Zealand human rights law. Since the drafting of the Optional Protocol (OP) to the International Covenant on Economic, Social and Cultural Rights about 5 years ago, apart from my book (also, see above article Global systematic discrimination against the poor) there was a remarkable complete absence of dissent, at least aired in public, apart from my own. This very strongly indicates that both the domestic and international political/human rights establishment operate by way of consensus, hiding the omitted rights, presenting a united front with no public dissent permitted unless necessary. Now some intellectuals are coming out in support of my point of view.
After the inclusion of my book on the official UN Portal website about three months ago there is now intellectual support for my position. Arne Vandenbogaerde (Human Rights Consultant) and Wouter Vandenhole (Professor of Human Rights Law, UNICEF Chair in Children’s Rights, University of Antwerp Law Research School state in the abstract to their article: “In this article it is submitted that the text of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, as finally adopted on 10 December 2008, is to be seen as the outcome of a drafting process that was dominated by ideological prejudices rather than concerns with potential effectiveness of rights…… At times an absolutist search for consensus seems to have been the driving force behind weakening the text”. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: an Ex Ante Assessment of its Effectiveness in Light of the Drafting Process, Human Rights Law Review (2010) doi: 10.1093/hrlr/ngq004 First published online: May 13, 2010. Although it is early days yet (although Ecuador is the only State to have ratified the OP so far) it shows the importance of an independent mind which seeks the truth and which liberal rights are meant to protect.
If there is not a firm bottom line with respect to human rights (and we extend this to include both sets of rights) and if people are unable to help themselves because of social class discrimination this is the domain of absolute force: ‘no choice’ and ‘no hope’. John Locke (1689), regarded as the father of liberal rights, would consider that when the ‘rule of reason’ i.e. the social contract, has collapsed in this way for a section of the population and there is no ‘appeal on earth’ then you can only ‘appeal to heaven’ and exercise the ‘right of resisting’ such tyranny (John Locke, Two Treatises of Government, Ed. By Peter Laslett, Mentor Books, New American Library, paragraphs 168 and 208, 1965).
However, I admit as a single person I ‘do not have a clue’ what I would do if I had a wife and children. The latter circumstances could lead some people to adopt John Locke’s position. But in my view, the poor were crushed so very effectively and are so isolated that the political violence seen recently in Greece and Thailand is very unlikely to happen here in the foreseeable future (except perhaps as a result of a domino effect initiated from outside the country). Rather most likely we will see increasing low level criminal violence (albeit with political overtones). For example, according to the annual crime statistics violent crime increase by 9.2% in 2009 and disorder offending by 8% (Radio New Zealand News, 1 April 2010).
I consider that John Key’s National Government should be given a chance – they have some positive ideas e.g. responsible mining and a focus on science. They have introduced at least some ‘reason’ into the madness of social class discrimination and offer some hope of a future for the children who will otherwise face a very class-based society. In my view they seem to be an improvement over the governments we have had since 1984 and, hopefully, it may get better.
Where New Zealand’s leaderships since 1984 went wrong, in my view, is because they fell into one of humankind’s oldest traps – they thought they knew all the answers. This is best described by Bertrand Russell in Unpopular Essays: “Most of the greatest evils that man has inflicted upon man has come through people feeling quite certain about something which, in fact, was false……. To know the truth is more difficult than most men suppose, and to act with ruthless determination in the belief that truth is the monopoly of their party is to invite disaster” (p157, Ideas that have harmed mankind, Taylor & Francis e-Library, 2009).
Freedom is not an impossible dream. Hope still remains because the human rights omissions in domestic and international human rights law are now known and their inclusion can be struggled for in a non-violent way.
(1) The Human Rights Party is an unregistered party first set up by a member of the Human Rights Council Inc. (New Zealand) Anthony van den Heuvel.
On 9 June 2010 in ‘Looking after children and improving their outlook in the wwg review’, Prof Innes Asher with 30 years as a paediatrician stated: New Zealand hospitalization rates for pneumonia are 5-10 times higher than those of other OECD countries; bronchiectasis 8-9 times; rheumatic fever 13 times; serious skin infections doubled since 1994, and these are double the Australia rates. Also, in 2007 working for families in work tax credit The Human Rights tribunal in 2008 found this constitutes real and substantive discrimination against children ( http://www.cpag.org.nz/resources/articles/res1276142474.pdf). One NGO the KidsCan StandTall 'Food for Kids' programme currently provides free food at school for over 17,000 financially disadvantaged children a week. It has also provided 8,000 pairs of shoes 35,000 children in 111 low decile schools around the country have received raincoats (http:// www.kidscan.org.nz ). From 2004 to 2008, the reported number of substantiated child maltreatment findings for children 16 and younger had risen from 8,500 to 16,000. During that time, the total number of children in that age range remained at about 1 million (Human Rights Committee Concludes Consideration of New Zealand’s Fifth Report HR/CT/721 16 March 2010). Barnardos advocacy manager Deborah Morris-Travers “New Zealand doesn’t rate well compared with our OECD counterparts. We have the worst child death by maltreatment rate in the world” (‘New report reveals hidden costs’, Grahame Armstrong, Sunday Star Times, 23 August 2009, http://www.stuff.co.nz/the-press/news/2779210/New-report-reveals-hidden-costs
In terms of child health, New Zealand has the highest rates of suicide in the OECD for youth aged 15-19. Overall child mortality is also higher than the OECD average. Immunisation rates are poor for measles (2nd worst in the OECD) and whooping cough (5th worst in the OECD)” (Co-author of the OECD report Mr Dominic Richardson).
The Child poverty Action Group state there are 150,000 (26% of children) in significant or severe hardship (2004, no official data available for 2007). Also, in 2004 there were about 185,000 children in benefit families (www.cpag.org.nz ).
The head of social policy for the Organisation for Economic Cooperation and Development (OECD), Dr Monika Queisser, told a forum organised by the Government's Welfare Working Group yesterday how New Zealand was "out of step with other countries". The countries in the OECD that have achieved low child poverty (the Nordic countries and France) often have universal child benefits, and that might be also an avenue that New Zealand might want to explore in more detail." (‘Child poverty rate in NZ too high, Govt told’, NZ Herald, Simon Collins, Thurs June 10, 2010).
New Zealand now has 106, 910 more individuals in receipt of sickness and invalids benefits since 1985 (according to Broken Welfare, North&South, May 2000 the number was 31,090). In June 2009 the total number who are classed either as sick or as invalids is 138,000 (Controller and Auditor-General, Ministry of Social Development, www.oag.govt.nz/2009/social-development/ ).
The Ministry of Health interviewed nearly 13,000 people for its in-depth Te Rau Hinengaro: The New Zealand Mental Health Survey, released in September 2006. It found that 46 per cent of New Zealanders will meet the criteria for having a mental disorder at some time in their life. Some 20 per cent had a disorder in the last 12 months. It found that 16% of New Zealanders have thought seriously about suicide (Controller and Auditor-General, Ministry of Social Development, www.oag.govt.nz/2009/social-development/ ).
According to the Australian Government department of immigration and citizenship as at 30 June 2009 an estimated 548,256 New Zealand citizens were present in Australia (www.immi.gov.au/media/fact-sheets/17nz.htm ).
From June 2004 to 30 June 2009 there was a 23.2% increase in New Zealanders living in Australia. Applying the same 23.2% to old figures provided by Statistics New Zealand based on census 2001 data: New Zealanders in the UK were 58,000; in the US, 23,000; Canada, 9,500; elsewhere, 40,500 = Total of 131,000. To bring this figures up-to-date the above 23.2% may be a reasonable approximation = 161,392. Adding the above 548,256 in Australia makes an estimated 709,648 New Zealanders living overseas as at 30 June 2009. Britain with a similar social class-based system also experiences a large exodus of Britains overseas and as with New Zealand replaces them with immigrants (Workpermit.com, 23 August 2005).