Introduction

INTRODUCTION

This part on Oceania includes chapters on fourteen countries: Australia, New Zealand, and twelve small island states: Tuvalu, Kiribati, Tonga, Vanuatu, Micronesia, Samoa, Papua New Guinea, Palau, Marshal Islands, Nauru, Solomon Islands and Fiji.

Australia and New Zealand

Given the robust anti-discrimination legislative systems in both Australia and New Zealand, extended chapters on these countries, which include not only the constitutional provisions and the penal codes, but also specific legislation pertaining to non-discrimination are also included herein. The Australia chapter includes the federal legal framework, that is the main Commonwealth laws pertaining to non-discrimination and human rights, including the authorities responsible for redress for human rights violations; notably the Australian Human Rights Commission, the main authority responsible for receiv- ing complaints regarding discrimination and human rights violations. Moreover, each Australian state and territory has its own human rights ombudsperson, as well as its own equal opportunity and non-discriminations laws.1 The chapter also includes several provisions from the Racial Discrimination Act,2 and the Human Rights Commission Act and Regulations.3 New Zealand’s legal system is based on common law, and the country has estab- lished special legislation and land courts for the Maori population. New Zealand’s Human Rights Act promulgates an extensive list of prohibited grounds of discrimination, including sex, marital status, religious belief, ethical belief, color, race, eth- nic or national origin, disability, political opinion, employment status, family status or sexual orientation.4 Persons may file complaints regarding violations made to the Human Rights Act with the Human Rights Commission, and civil and judicial remedies may also be provided by the Human Rights Review Tribunal. In the World Justice Project’s latest Rule of Law Index for 2019,5 New Zealand ranked 9 out of

1 Note that Australian states and territories have enacted their own non-discrimination laws. As this book only includes federal level legislation, these are not included herein. 2 Racial Discrimination Act of 1975, as amended up to 2015. 3 Australia’s Human Rights Commission Act of 1986, as amended up to 2016; Australia’s Human Rights Commission Regulations of 1989, as amended up to 2013. 4 New Zealand’s Human Rights Act 1993, as amended up to 2016, Section 21. 5 Source: World Justice Project, Rule of Law Index for 2019, https://worldjusticeproject .org/our-work/research-and-data/wjp-rule-law-index-2019. See also, The University of

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102 countries for its adherence to protection of fundamental human rights, which takes into account the country’s effective enforcement of non-discrimination laws.

The Oceania Islands

In the following chapters, included are the constitutional and penal code provisions pertaining to the Oceania island states, as well as an extended chapter on Fiji further delving into specific human rights related laws and non-discrimination. The small Oceania island states are young, developing countries which received their independence in the period of decolonization, between 1960 and 1980, with exception of Papua New Guinea (1949) and Micronesia (1986). The legal systems of most of these states have been mainly influenced by the United Kingdom (e.g. Solomon Islands, Fiji, Tuvalu, Kiribati, Tonga), either directly or through Australia and New Zealand (Papua New Guinea, Nauru, Samoa). Some of the countries, such as Palau, Marshal Islands, Micronesia, have had American legal influence and are signatories of a “compact of free association” with the United States. Vanuatu is an exception in this respect: it had been managed jointly by the Great Britain and France, and, indeed, its legal system is a mix of English common law, French law, and customary law. These small islands in Oceania can all be character- ized by their dependence on financial aid from developed countries such as the U.S., Australia and New Zealand. Due to their colonial history, these countries demonstrate divergence between the law in the books, written by British or American lawyers and imposed by the colonial powers, and the native customs and traditions. Foreign western values often contradict native inherent values and lifestyle. Customs and traditional elders’ councils and chiefs of tribes still play a significant role in determining people’s behavior. In Kiribati, for example, local customs and traditions generally play a significant role and are given recognition in the courts. Traditional practices allow for execut- ing corporal punishments for criminal acts,6 even though Kiribati’s Penal Code does not contain such a punishment. The country has also ratified the Convention on the Rights of the Child of 1995, but under the reservation that certain Articles would be exercised in accordance with traditional custom regarding the child’s place in the family. Similarly, Tuvalu’s Constitution protects Tuvaluan traditions

Melbourne, Human Rights Law Research Guide: New Zealand, available at http://unimelb .libguides.com/human_rights_law/national/nz. 6 Source: U.S. Department of State Bureau of Democracy, Human Rights and Labor. Human Rights Practices for 2016 Report. Available at https://www.state.gov/documents/ organization/265554.pdf.