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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF NEW ZEALAND
01 May 2009
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Committee against Torture
AFTERNOON
1 May 2009
The Committee against Torture this morning began its consideration of the fifth periodic report of New Zealand on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Don MacKay, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that, during the reporting period, New Zealand had enacted several pieces of legislation relevant to compliance with the Convention, such as the Citizenship Amendment Act 2005, the Corrections Act 2004 and associated regulations, and the Crimes of Torture Amendment Act 2006. The latter provided a robust regime for compliance with the Optional Protocol to the Convention. Since the submission of the report in 2007 there had also been some major developments, the most significant being New Zealand's ratification of the Optional Protocol to the Convention against Torture on 14 March 2007. Shortly thereafter the Ombudsmen, the Children's Commissioner, the Independent Police Conduct Authority and the Inspector of Service Penal Establishments had been designated as national preventive mechanisms, with New Zealand's national independent Human Rights Commission designated as the central national preventive mechanism, to coordinate the activities of the others and to liaise with the United Nations Subcommittee for the Prevention of Torture.
Mr. MacKay also noted that the Government had taken steps to make express provision for the non-refoulement obligations of Article 3 of the Convention in New Zealand legislation. Article 3 was currently implemented administratively, subject to judicial oversight by the courts. The Immigration Bill, which contained non-refoulement obligations in language drawn directly from the Convention and the International Covenant on Civil and Political Rights, had been introduced into Parliament in August 2007 and was currently processing through the legislative process.
Serving as Rapporteur for the report of New Zealand, Committee Expert Alexander Kovalev raised a number of concerns, including protections for Maoris, who were disproportionately represented in the prison population and received harsher sentences; physical violence against and harassment of prisoners and what happened to such complaints; and the fact that those responsible for investigating police crimes were senior police officers. Also of concern were reports that illegal immigrants in New Zealand were held in prisons and a low rate of granting of asylum requests (1 out of 20); as well as the rights of those with mental problems to be informed about their rights, in particular given information that 15 per cent of detainees had psychological problems. Myrna Kleopas, the Committee Expert serving as Co-Rapporteur for the report also voiced a number of concerns relating to detention conditions, including the use of waist restraints during prisoner transport and that, despite efforts, children continued to be held in police cells and to be held together with adults in some court cells. Other concerns included the use of Tasers by the New Zealand Police, and that the absolute nature of the prohibition against torture was not explicitly spelled out in law.
Also representing the delegation of New Zealand were members of the Permanent Mission of New Zealand in Geneva, as well as representatives of the Solicitor-General's Office; the Department of Corrections; the Ministry of Justice; and the Department of Labour of New Zealand.
New Zealand is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
The delegation will return to the Committee at 10 a.m. on Monday, 4 May, to provide its responses to the questions raised today.
Report of New Zealand
During the reporting period considerable progress has been made in further addressing New Zealand’s obligations under the Convention, says the fifth periodic report of New Zealand (CAT/C/NZL/5). Specific areas of note include the enactment of the Citizenship Amendment Act 2005, the Corrections Act 2004 and associated regulations, and the Crimes of Torture Amendment Act 2006. The Crimes of Torture Amendment Act provides a robust regime for compliance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Other recent key measures to ensure compliance with the Convention include accession to the Convention on the Reduction of Statelessness; introduction of the Independent Police Complaints Authority Bill; and the Corrections Regulations 2005.
The Corrections Act 2004 and the Corrections Regulations 2005 introduced changes to reflect modern approaches to offender management, and set out the purpose and principles guiding the operation of the corrections system, including an emphasis on fair treatment of prisoners, the provision of interventions to assist prisoners’ rehabilitation and reintegration and a provision that corrections facilities should be operated in accordance with rules and regulations based, among others, on the United Nations Standard Minimum Rules for the Treatment of Prisoners. The Act imposes a requirement on the Department of Corrections to devise an individual management plan for each prisoner covering their safe, humane and secure containment, and in the case of sentenced prisoners, their rehabilitation and reintegration. It also provides for a more consistent approach to the use of non-lethal weapons and has an improved disciplinary offence regime – for example, requiring that decisions to segregate prisoners for the purpose of good order and discipline expire after 14 days unless extended by the Chief Executive. Also noteworthy is work to implement the recommendation in the Ombudsmen’s 2002 annual report that permanent video recording equipment be installed in more volatile units within prisons in order to assist investigations of alleged assaults of prisoners by staff and to provide a safeguard for staff in the case of false allegations being made against them. Significant progress to meet this recommendation has now been made, with approximately 2,000 new video cameras having been fitted in correctional facilities.
Presentation of Report
DON MacKAY, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that torture was an abhorrent and intolerable crime and New Zealand was committed to the processes that the international community had put in place to end that repugnant and illegal practice. The Government therefore welcomed the scrutiny of the Committee and the opportunity it provided to discuss New Zealand's compliance with the obligations enshrined in the Convention. The report before the Committee was the fifth since New Zealand ratified the Convention against Torture in 1989 and covered the period 1 January 2003 to 1 January 2007
Mr. MacKay said New Zealand had always been committed to the United Nations and the role it played in the promotion and protection of human rights. New Zealand had also encouraged other countries to work together to recognize and protect fundamental rights and freedoms, and had played a leading role in lobbying for the adoption of new instruments, such as the Optional Protocol to the Convention against Torture. At the domestic level, successive New Zealand Governments had worked steadily to create and maintain a human rights environment that enabled its people to reach their individual and collective potential regardless of characteristics such as race, gender, disability and religion.
In terms of prohibition of torture, New Zealand had legislation in place to ensure that those who committed torture in New Zealand and overseas were brought to justice. Furthermore, New Zealand had implemented a range of legislative and administrative measures to clarify the rights of detained persons. Recognizing that the independent monitoring of places of detention was the best means to eliminate the abuse of detained prisoners, New Zealand had also empowered suitably qualified institutions to undertake that function, both in the form of designated national preventive mechanisms and also through oversight by the court system, the New Zealand Police and a number of additional independent review and complaints mechanisms.
During the reporting period, New Zealand had introduced a number of measures to further address its obligations under the Convention, Mr. MacKay observed. It had enacted several pieces of legislation relevant to compliance with the Convention, such as the Citizenship Amendment Act 2005, the Corrections Act 2004 and associated regulations, and the Crimes of Torture Amendment Act 2006. The latter provided a robust regime for compliance with the Optional Protocol to the Convention. In addition, New Zealand had acceded to the Convention on the Reduction of Statelessness.
Since the submission of its report in 2007, there had also been some major developments and administrative advances made in protection from torture and other cruel, inhuman or degrading treatment or punishment in New Zealand, Mr. MacKay underscored. The most significant development was that New Zealand had ratified the Optional Protocol to the Convention against Torture on 14 March 2007. Shortly thereafter the Ombudsmen, the Children's Commissioner, the Independent Police Conduct Authority and the Inspector of Service Penal Establishments had been designated as national preventive mechanisms. New Zealand's national independent Human Rights Commission had been designated as the central national preventive mechanism, to coordinate the activities of the other mechanisms and to liaise with the United Nations Subcommittee for the Prevention of Torture.
The first collated annual report of the five designated Optional Protocol organizations had been published, highlighting some challenging issues across the various detention contexts, including ensuring that all facilities were suitable for the purpose; the need for adequate staffing levels, training and specialist staff; and the need for particular attention to the rights of specific groups such as children and young people, asylum-seekers and disabled persons. The report also identified a small gap in the monitoring coverage. Nevertheless, Mr. Mackay underscored that the Government had acted quickly to close that gap by extending the mandates of the relevant national preventive mechanisms to include the area of child care and protection residences.
To allow the Ombudsmen to have the primary responsibility for oversight of the prisons, in September 2007 the role of the Ombudsmen had been enhanced, giving them responsibilities for conducting investigations of designated serious incidents. The new responsibilities would result in more public reporting of investigations about prison conditions and prisoner treatment more generally, Mr. MacKay said.
The Government had also enhanced the independent monitoring of the Police through recent amendments to the Independent Police Conduct Authority Act. The amendments included extending the Authority's membership from a single individual to a board of up to five members; and providing the Authority with the same powers as the Commissions of Inquiry, including powers to receive evidence, examine documents and summon witnesses. The Policing Act 2008 had also been enacted following a substantial review, and one of the key principles that guided the Act had been that policing services were always provided in a manner that respected human rights.
Mr. MacKay noted that, in response to the Committee's concluding observations to New Zealand's previous report, the Government had taken steps to make express provision for the non-refoulement obligations of Article 3 of the Convention in New Zealand legislation. Article 3 was currently implemented administratively, subject to judicial oversight by the courts. The Immigration Bill, which contained non-refoulement obligations in language drawn directly from the Convention and the International Covenant on Civil and Political Rights, had been introduced into Parliament in August 2007 and was currently processing through the legislative process.
The regime for the detention of persons under public health legislation had also been thoroughly reviewed, he added, and a Public Health Bill currently before Parliament contained various safeguards such as time limits, mandatory review, appeal rights and provisions for release when a person was no longer a health risk.
Turning to other issues of relevance to the Convention, Mr. MacKay addressed the concerns raised by some groups that some anti-terrorism measures did not meet New Zealand's obligations under the Convention or had been used inappropriately. For instance, the New Zealand Human Rights Commission had received a number of complaints about a police operation in October 2007 under the Arms and Terrorism Suppression Act, which had resulted in the arrest of individuals for unlawful possession of firearms and other weapons. The United Nations Special Rapporteurs had received a communication on the issue in late 2007, alleging, among others, that the Police had breached the rights to liberty and freedom from discrimination. The Government's response in January 2008 noted that the actions of the police were to be considered by several independent bodies and would also be scrutinized in court proceedings, which were both currently in process.
With regard to New Zealand's reservation to article 14 of the Convention relating to compensation of victims, Mr. MacKay observed that there had been a number of legislative reforms and common law developments in the interim. The Government was therefore now examining the implications of lifting that reservation.
Since the Committee's last periodic review the New Zealand Supreme Court had considered the Taunoa case, concerning the Behaviour Management Regime, and upheld the awards of compensation that had been made for breach of the right to treatment with dignity and respect. The Taunoa proceedings involved extensive review of prison practice, undertaken through public legal aid funding and including cross-examination of responsible prison staff by the claimants' counsel.
The Supreme Court had also considered the Zaoui case, concerning a refugee who had been found to pose a security risk and who had also raised a claim of non-refoulement. The Court had endorsed the Government's position that the claimant in that case would not be deported if he or she were at risk of torture or arbitrary death.
With regard to detention conditions, in 2005, they had completed four specialist youth units in male prisons to ensure that there were sufficient beds to accommodate youth offenders separately from adults. Females under 18 were also separated from those 18 and over unless it was in their best interest to be mixed with older prisoners. Mr. MacKay recognized that further work was required regarding certain custodial facilities, especially court cells, to ensure full compliance with the obligation to separate minors from adults. Prisoners 17 and under were generally held separately from adults in court cells but that was not always possible because of the limitations, particularly in small, remote courthouses.
Another matter of relevance was that, despite Government initiatives over a number of years, Maori continued to be disproportionately represented in criminal justice statistics, as well as some evidence that suspected or offending Maori faced harsher consequences. A summit co-hosted by the Ministers of Justice and Maori Affairs had been held last month on drivers of crime, to discuss and propose a way to deal with those issues. The Department of Corrections had also developed a separate Maori Strategic Plan, the primary focus of which was to reduce Maori offending by strengthening awareness of Maori cultural concepts and values among Maori prisoners.
Finally, with regard to the introduction of Taser electronic control devices in the New Zealand Police, Mr. MacKay said that the Police had recently conducted a trial, including a review of extensive international studies. Following that review and trial, the Commissioner of Police had approved the introduction of Tasers as a less lethal option for Police in New Zealand. The Government considered that a democratic and transparent process had occurred with respect to the introduction and future use of Tasers, and he underscored that key community stakeholders, such as Amnesty International, continued to be engaged throughout the process.
Questions Raised by Committee Experts
ALEXANDER KOVALEV, the Committee Chairperson serving as Rapporteur for the report of New Zealand, was pleased to note that since 2004 a number of fundamental laws had been adopted in New Zealand to protect persons against torture and other cruel, inhuman or degrading treatment or punishment, in particular the 2004 Corrections Act, the ratification of the Optional Protocol to the Convention and the accession to the Convention against Statelessness and others. In that connection, he asked if international treaties could be applied directly in the courts?
With regard to implementation of relevant legislation, how did the Government intend to ensure the application of the New Zealand Bill of Rights Act 1990, Mr. Kovalev asked?
Mr. Kovalev also asked for clarification on whether or not all the provisions of the Convention had been incorporated into domestic law. He also requested information on whether there had been any cases brought alleging torture and asked for details of those cases.
Also of concern for Mr. Kovalev were protections for the rights of Maoris, who the Government acknowledged were disproportionately represented in the prison population and received harsher sentences; physical violence against and harassment of prisoners and what happened to such complaints; and the fact that those responsible for investigating police crimes were senior police officers.
On migrants and asylum-seekers, Mr. Kovalev asked about the detention of illegal migrants, following information that illegal immigrants in New Zealand were held in prisons; whether, under current law, New Zealand could refoul asylum-seekers to third countries; and expressed concern that the reported rate of granting of asylum requests was low in New Zealand, 1 out of 20, and asked if that was still the case.
Mr. Kovalev also had concerns about the rights of those with mental problems to be informed about their rights, raised by an April 2002 article that stated that 15 per cent of those in detention in New Zealand had psychological problems.
MYRNA Y. KLEOPAS, the Committee Expert serving as Co-Rapporteur for the report of New Zealand, with regard to training, asked whether medical professionals were trained to identify signs of physical or psychological torture and how to rehabilitate them; whether they received training on the Istanbul Protocol; whether training for medical professionals and law enforcement officials was ongoing, so that it took into account new developments; and whether there was monitoring and review of those programmes.
Ms. Kleopas was also concerned by the information in the Commission on Human Rights report according to which the majority of New Zealand prison staff had less than two years' experience. Another concern raised in the Commission's report was the fact that waist restraints were regularly used during prisoner transport as a means of preventing prisoner assault. It had been recommended that an alternative method of transport be devised. She also wished to know if minors were subject to such measures.
Regarding treatment of especially vulnerable groups, while appreciating information by the delegation on measures to decrease the number of children held in police cells where no other facilities were available, and the mixing of adults and minors in court cells, Ms. Kleopas stressed that the goal had to be the complete elimination of that practice.
On Tasers, Ms. Kleopas said that the Committee had already expressed its position on the use of those weapons in the context of another country review. The Committee was against the use of Tasers, which they felt might result in the commission of torture.
Ms. Kleopas also felt that the absolute nature of the prohibition against torture had to be more explicitly spelled out in New Zealand's law.
Other Committee Experts asked questions related to, among others, the scope of the Independent Police Complaint Authority's mandate; the fact that convicted prisoners were sometimes held in police cells; overcrowding in prisons; whether domestic law distinguished between professional misconduct and criminal conduct by State agents; whether a plaintiff could bring a prosecution without the Attorney-General's approval; and whether there were safeguards to ensure that confidential procedures in national security cases were carried out lawfully. An Expert also asked for more details about how the "non-voluntary confinement" procedure differed from solitary confinement; and, in a related matter, if Mr. Zaoui, who had been held for months in solitary confinement, had received compensation. Many Experts echoed concerns already voiced by the rapporteurs, including on the situation of Maori in the justice system; the use of Tasers; the need for an absolute prohibition on torture; the situation of refugees in detention; and on the need to separate children from adults in detention settings.
An Expert noted that only seven claims had been brought under Article 3 (non-refoulement), five of which had been dismissed for lack of credibility. In that regard, was the authority assessing these claims a strictly administrative body? If so, it was not subject to sufficient levels of protections.
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For use of the information media; not an official record
AFTERNOON
1 May 2009
The Committee against Torture this morning began its consideration of the fifth periodic report of New Zealand on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Don MacKay, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that, during the reporting period, New Zealand had enacted several pieces of legislation relevant to compliance with the Convention, such as the Citizenship Amendment Act 2005, the Corrections Act 2004 and associated regulations, and the Crimes of Torture Amendment Act 2006. The latter provided a robust regime for compliance with the Optional Protocol to the Convention. Since the submission of the report in 2007 there had also been some major developments, the most significant being New Zealand's ratification of the Optional Protocol to the Convention against Torture on 14 March 2007. Shortly thereafter the Ombudsmen, the Children's Commissioner, the Independent Police Conduct Authority and the Inspector of Service Penal Establishments had been designated as national preventive mechanisms, with New Zealand's national independent Human Rights Commission designated as the central national preventive mechanism, to coordinate the activities of the others and to liaise with the United Nations Subcommittee for the Prevention of Torture.
Mr. MacKay also noted that the Government had taken steps to make express provision for the non-refoulement obligations of Article 3 of the Convention in New Zealand legislation. Article 3 was currently implemented administratively, subject to judicial oversight by the courts. The Immigration Bill, which contained non-refoulement obligations in language drawn directly from the Convention and the International Covenant on Civil and Political Rights, had been introduced into Parliament in August 2007 and was currently processing through the legislative process.
Serving as Rapporteur for the report of New Zealand, Committee Expert Alexander Kovalev raised a number of concerns, including protections for Maoris, who were disproportionately represented in the prison population and received harsher sentences; physical violence against and harassment of prisoners and what happened to such complaints; and the fact that those responsible for investigating police crimes were senior police officers. Also of concern were reports that illegal immigrants in New Zealand were held in prisons and a low rate of granting of asylum requests (1 out of 20); as well as the rights of those with mental problems to be informed about their rights, in particular given information that 15 per cent of detainees had psychological problems. Myrna Kleopas, the Committee Expert serving as Co-Rapporteur for the report also voiced a number of concerns relating to detention conditions, including the use of waist restraints during prisoner transport and that, despite efforts, children continued to be held in police cells and to be held together with adults in some court cells. Other concerns included the use of Tasers by the New Zealand Police, and that the absolute nature of the prohibition against torture was not explicitly spelled out in law.
Also representing the delegation of New Zealand were members of the Permanent Mission of New Zealand in Geneva, as well as representatives of the Solicitor-General's Office; the Department of Corrections; the Ministry of Justice; and the Department of Labour of New Zealand.
New Zealand is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
The delegation will return to the Committee at 10 a.m. on Monday, 4 May, to provide its responses to the questions raised today.
Report of New Zealand
During the reporting period considerable progress has been made in further addressing New Zealand’s obligations under the Convention, says the fifth periodic report of New Zealand (CAT/C/NZL/5). Specific areas of note include the enactment of the Citizenship Amendment Act 2005, the Corrections Act 2004 and associated regulations, and the Crimes of Torture Amendment Act 2006. The Crimes of Torture Amendment Act provides a robust regime for compliance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Other recent key measures to ensure compliance with the Convention include accession to the Convention on the Reduction of Statelessness; introduction of the Independent Police Complaints Authority Bill; and the Corrections Regulations 2005.
The Corrections Act 2004 and the Corrections Regulations 2005 introduced changes to reflect modern approaches to offender management, and set out the purpose and principles guiding the operation of the corrections system, including an emphasis on fair treatment of prisoners, the provision of interventions to assist prisoners’ rehabilitation and reintegration and a provision that corrections facilities should be operated in accordance with rules and regulations based, among others, on the United Nations Standard Minimum Rules for the Treatment of Prisoners. The Act imposes a requirement on the Department of Corrections to devise an individual management plan for each prisoner covering their safe, humane and secure containment, and in the case of sentenced prisoners, their rehabilitation and reintegration. It also provides for a more consistent approach to the use of non-lethal weapons and has an improved disciplinary offence regime – for example, requiring that decisions to segregate prisoners for the purpose of good order and discipline expire after 14 days unless extended by the Chief Executive. Also noteworthy is work to implement the recommendation in the Ombudsmen’s 2002 annual report that permanent video recording equipment be installed in more volatile units within prisons in order to assist investigations of alleged assaults of prisoners by staff and to provide a safeguard for staff in the case of false allegations being made against them. Significant progress to meet this recommendation has now been made, with approximately 2,000 new video cameras having been fitted in correctional facilities.
Presentation of Report
DON MacKAY, Permanent Representative of New Zealand to the United Nations Office at Geneva, said that torture was an abhorrent and intolerable crime and New Zealand was committed to the processes that the international community had put in place to end that repugnant and illegal practice. The Government therefore welcomed the scrutiny of the Committee and the opportunity it provided to discuss New Zealand's compliance with the obligations enshrined in the Convention. The report before the Committee was the fifth since New Zealand ratified the Convention against Torture in 1989 and covered the period 1 January 2003 to 1 January 2007
Mr. MacKay said New Zealand had always been committed to the United Nations and the role it played in the promotion and protection of human rights. New Zealand had also encouraged other countries to work together to recognize and protect fundamental rights and freedoms, and had played a leading role in lobbying for the adoption of new instruments, such as the Optional Protocol to the Convention against Torture. At the domestic level, successive New Zealand Governments had worked steadily to create and maintain a human rights environment that enabled its people to reach their individual and collective potential regardless of characteristics such as race, gender, disability and religion.
In terms of prohibition of torture, New Zealand had legislation in place to ensure that those who committed torture in New Zealand and overseas were brought to justice. Furthermore, New Zealand had implemented a range of legislative and administrative measures to clarify the rights of detained persons. Recognizing that the independent monitoring of places of detention was the best means to eliminate the abuse of detained prisoners, New Zealand had also empowered suitably qualified institutions to undertake that function, both in the form of designated national preventive mechanisms and also through oversight by the court system, the New Zealand Police and a number of additional independent review and complaints mechanisms.
During the reporting period, New Zealand had introduced a number of measures to further address its obligations under the Convention, Mr. MacKay observed. It had enacted several pieces of legislation relevant to compliance with the Convention, such as the Citizenship Amendment Act 2005, the Corrections Act 2004 and associated regulations, and the Crimes of Torture Amendment Act 2006. The latter provided a robust regime for compliance with the Optional Protocol to the Convention. In addition, New Zealand had acceded to the Convention on the Reduction of Statelessness.
Since the submission of its report in 2007, there had also been some major developments and administrative advances made in protection from torture and other cruel, inhuman or degrading treatment or punishment in New Zealand, Mr. MacKay underscored. The most significant development was that New Zealand had ratified the Optional Protocol to the Convention against Torture on 14 March 2007. Shortly thereafter the Ombudsmen, the Children's Commissioner, the Independent Police Conduct Authority and the Inspector of Service Penal Establishments had been designated as national preventive mechanisms. New Zealand's national independent Human Rights Commission had been designated as the central national preventive mechanism, to coordinate the activities of the other mechanisms and to liaise with the United Nations Subcommittee for the Prevention of Torture.
The first collated annual report of the five designated Optional Protocol organizations had been published, highlighting some challenging issues across the various detention contexts, including ensuring that all facilities were suitable for the purpose; the need for adequate staffing levels, training and specialist staff; and the need for particular attention to the rights of specific groups such as children and young people, asylum-seekers and disabled persons. The report also identified a small gap in the monitoring coverage. Nevertheless, Mr. Mackay underscored that the Government had acted quickly to close that gap by extending the mandates of the relevant national preventive mechanisms to include the area of child care and protection residences.
To allow the Ombudsmen to have the primary responsibility for oversight of the prisons, in September 2007 the role of the Ombudsmen had been enhanced, giving them responsibilities for conducting investigations of designated serious incidents. The new responsibilities would result in more public reporting of investigations about prison conditions and prisoner treatment more generally, Mr. MacKay said.
The Government had also enhanced the independent monitoring of the Police through recent amendments to the Independent Police Conduct Authority Act. The amendments included extending the Authority's membership from a single individual to a board of up to five members; and providing the Authority with the same powers as the Commissions of Inquiry, including powers to receive evidence, examine documents and summon witnesses. The Policing Act 2008 had also been enacted following a substantial review, and one of the key principles that guided the Act had been that policing services were always provided in a manner that respected human rights.
Mr. MacKay noted that, in response to the Committee's concluding observations to New Zealand's previous report, the Government had taken steps to make express provision for the non-refoulement obligations of Article 3 of the Convention in New Zealand legislation. Article 3 was currently implemented administratively, subject to judicial oversight by the courts. The Immigration Bill, which contained non-refoulement obligations in language drawn directly from the Convention and the International Covenant on Civil and Political Rights, had been introduced into Parliament in August 2007 and was currently processing through the legislative process.
The regime for the detention of persons under public health legislation had also been thoroughly reviewed, he added, and a Public Health Bill currently before Parliament contained various safeguards such as time limits, mandatory review, appeal rights and provisions for release when a person was no longer a health risk.
Turning to other issues of relevance to the Convention, Mr. MacKay addressed the concerns raised by some groups that some anti-terrorism measures did not meet New Zealand's obligations under the Convention or had been used inappropriately. For instance, the New Zealand Human Rights Commission had received a number of complaints about a police operation in October 2007 under the Arms and Terrorism Suppression Act, which had resulted in the arrest of individuals for unlawful possession of firearms and other weapons. The United Nations Special Rapporteurs had received a communication on the issue in late 2007, alleging, among others, that the Police had breached the rights to liberty and freedom from discrimination. The Government's response in January 2008 noted that the actions of the police were to be considered by several independent bodies and would also be scrutinized in court proceedings, which were both currently in process.
With regard to New Zealand's reservation to article 14 of the Convention relating to compensation of victims, Mr. MacKay observed that there had been a number of legislative reforms and common law developments in the interim. The Government was therefore now examining the implications of lifting that reservation.
Since the Committee's last periodic review the New Zealand Supreme Court had considered the Taunoa case, concerning the Behaviour Management Regime, and upheld the awards of compensation that had been made for breach of the right to treatment with dignity and respect. The Taunoa proceedings involved extensive review of prison practice, undertaken through public legal aid funding and including cross-examination of responsible prison staff by the claimants' counsel.
The Supreme Court had also considered the Zaoui case, concerning a refugee who had been found to pose a security risk and who had also raised a claim of non-refoulement. The Court had endorsed the Government's position that the claimant in that case would not be deported if he or she were at risk of torture or arbitrary death.
With regard to detention conditions, in 2005, they had completed four specialist youth units in male prisons to ensure that there were sufficient beds to accommodate youth offenders separately from adults. Females under 18 were also separated from those 18 and over unless it was in their best interest to be mixed with older prisoners. Mr. MacKay recognized that further work was required regarding certain custodial facilities, especially court cells, to ensure full compliance with the obligation to separate minors from adults. Prisoners 17 and under were generally held separately from adults in court cells but that was not always possible because of the limitations, particularly in small, remote courthouses.
Another matter of relevance was that, despite Government initiatives over a number of years, Maori continued to be disproportionately represented in criminal justice statistics, as well as some evidence that suspected or offending Maori faced harsher consequences. A summit co-hosted by the Ministers of Justice and Maori Affairs had been held last month on drivers of crime, to discuss and propose a way to deal with those issues. The Department of Corrections had also developed a separate Maori Strategic Plan, the primary focus of which was to reduce Maori offending by strengthening awareness of Maori cultural concepts and values among Maori prisoners.
Finally, with regard to the introduction of Taser electronic control devices in the New Zealand Police, Mr. MacKay said that the Police had recently conducted a trial, including a review of extensive international studies. Following that review and trial, the Commissioner of Police had approved the introduction of Tasers as a less lethal option for Police in New Zealand. The Government considered that a democratic and transparent process had occurred with respect to the introduction and future use of Tasers, and he underscored that key community stakeholders, such as Amnesty International, continued to be engaged throughout the process.
Questions Raised by Committee Experts
ALEXANDER KOVALEV, the Committee Chairperson serving as Rapporteur for the report of New Zealand, was pleased to note that since 2004 a number of fundamental laws had been adopted in New Zealand to protect persons against torture and other cruel, inhuman or degrading treatment or punishment, in particular the 2004 Corrections Act, the ratification of the Optional Protocol to the Convention and the accession to the Convention against Statelessness and others. In that connection, he asked if international treaties could be applied directly in the courts?
With regard to implementation of relevant legislation, how did the Government intend to ensure the application of the New Zealand Bill of Rights Act 1990, Mr. Kovalev asked?
Mr. Kovalev also asked for clarification on whether or not all the provisions of the Convention had been incorporated into domestic law. He also requested information on whether there had been any cases brought alleging torture and asked for details of those cases.
Also of concern for Mr. Kovalev were protections for the rights of Maoris, who the Government acknowledged were disproportionately represented in the prison population and received harsher sentences; physical violence against and harassment of prisoners and what happened to such complaints; and the fact that those responsible for investigating police crimes were senior police officers.
On migrants and asylum-seekers, Mr. Kovalev asked about the detention of illegal migrants, following information that illegal immigrants in New Zealand were held in prisons; whether, under current law, New Zealand could refoul asylum-seekers to third countries; and expressed concern that the reported rate of granting of asylum requests was low in New Zealand, 1 out of 20, and asked if that was still the case.
Mr. Kovalev also had concerns about the rights of those with mental problems to be informed about their rights, raised by an April 2002 article that stated that 15 per cent of those in detention in New Zealand had psychological problems.
MYRNA Y. KLEOPAS, the Committee Expert serving as Co-Rapporteur for the report of New Zealand, with regard to training, asked whether medical professionals were trained to identify signs of physical or psychological torture and how to rehabilitate them; whether they received training on the Istanbul Protocol; whether training for medical professionals and law enforcement officials was ongoing, so that it took into account new developments; and whether there was monitoring and review of those programmes.
Ms. Kleopas was also concerned by the information in the Commission on Human Rights report according to which the majority of New Zealand prison staff had less than two years' experience. Another concern raised in the Commission's report was the fact that waist restraints were regularly used during prisoner transport as a means of preventing prisoner assault. It had been recommended that an alternative method of transport be devised. She also wished to know if minors were subject to such measures.
Regarding treatment of especially vulnerable groups, while appreciating information by the delegation on measures to decrease the number of children held in police cells where no other facilities were available, and the mixing of adults and minors in court cells, Ms. Kleopas stressed that the goal had to be the complete elimination of that practice.
On Tasers, Ms. Kleopas said that the Committee had already expressed its position on the use of those weapons in the context of another country review. The Committee was against the use of Tasers, which they felt might result in the commission of torture.
Ms. Kleopas also felt that the absolute nature of the prohibition against torture had to be more explicitly spelled out in New Zealand's law.
Other Committee Experts asked questions related to, among others, the scope of the Independent Police Complaint Authority's mandate; the fact that convicted prisoners were sometimes held in police cells; overcrowding in prisons; whether domestic law distinguished between professional misconduct and criminal conduct by State agents; whether a plaintiff could bring a prosecution without the Attorney-General's approval; and whether there were safeguards to ensure that confidential procedures in national security cases were carried out lawfully. An Expert also asked for more details about how the "non-voluntary confinement" procedure differed from solitary confinement; and, in a related matter, if Mr. Zaoui, who had been held for months in solitary confinement, had received compensation. Many Experts echoed concerns already voiced by the rapporteurs, including on the situation of Maori in the justice system; the use of Tasers; the need for an absolute prohibition on torture; the situation of refugees in detention; and on the need to separate children from adults in detention settings.
An Expert noted that only seven claims had been brought under Article 3 (non-refoulement), five of which had been dismissed for lack of credibility. In that regard, was the authority assessing these claims a strictly administrative body? If so, it was not subject to sufficient levels of protections.
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For use of the information media; not an official record
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