COMMITTEE AGAINST TORTURE HEARS RESPONSE OF NEW ZEALAND

Committee against Torture
MORNING


4 May 2009


The Committee against Torture this morning heard the response of New Zealand to questions raised by Committee Experts on the fifth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Friday, 1 May, the delegation, which was led by Don MacKay, Permanent Representative of New Zealand to the United Nations Office at Geneva, said, on the question of whether the national preventive mechanisms that received funding from the Government could be considered independent in terms of the Paris Principles, that at the time the preventive mechanisms had been designated, the Government had sought advice on this very issue and had concluded that receiving Government funding was not an impediment to these bodies being considered functionally independent in terms of the Paris Principles. With respect to the minimum age of criminal responsibility, it was currently set at 10 years, said the delegation. However children could only be subjected to criminal prosecution for murder and other culpable homicide at age 10, and at age 14 for other offences. The Government had no current plans to increase the age of criminal responsibility.

Concerning the use of Tasers, the delegation said that the operating procedures for the use of the device had been developed following international best practices. A democratic process had occurred and continued to occur in respect to the introduction and future use of Tasers; key community stakeholders had been engaged throughout this process. The operating procedures contained several safeguards to ensure that Tasers were not used inappropriately. Concerning the conditions of detention in prison for immigration detainees, the delegation said that these were a special category of prisoners and the legislation provided that they had to be treated as accused prisoners. Such prisoners were, as far as was practicable, kept separated from other prisoners and their conditions generally exceeded those of convicted prisoners.

In follow-up questions, Committee Experts wondered about the criteria that applied to the detention of asylum seekers. With regard to the independence of the National Preventive Mechanisms, to whom were these bodies accountable to? Did they have to report to the department of justice? What happened when, during a trial it became clear that evidence had been obtained under torture? Other Committee Experts made comments and asked various questions, including on the age of criminal responsibility and the fact that the Government had no plan to increase this age. Several Experts made comments on the issue of Tasers. One Expert wondered why the Government had decided that police should carry these so-called “less-lethal weapons”, when until now, the police had not been carrying any lethal weapon at all. An Expert noted that the fact that Tasers were considered as being “less-lethal” often resulted in careless use.

The Committee will submit its conclusions and recommendations on the report of New Zealand towards the end of the session on Friday, 15 May.

As one of the 146 States parties to the Convention against Torture, New Zealand is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 3 p.m. today, it is scheduled to begin consideration of the fifth periodic report of Chile (CAT/C/CHL/5).


Response of New Zealand

Responding to a series of questions raised by Committee Experts on 1 May, the delegation said that, with regard to the justice system, the Government took its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment seriously. Most notably, the Government had passed the Crimes and Torture Amendment Act 2007, which had enabled New Zealand to ratify the Optional Protocol to the Convention.

On the question of whether the national preventive mechanisms that received funding from the Government could be considered independent in terms of the Paris Principles, the delegation said that at the time the preventive mechanisms had been designated, the Government had sought advice on this very issue and had concluded that receiving Government funding was not an impediment to these bodies being considered functionally independent in terms of the Paris Principles.

The delegation also underscored that the monitoring regime covered all places of detention in New Zealand. The Ombudsman had a primary role under the Optional Protocol; it had explicit authority to monitor psychiatric facilities and places in which asylum seekers were detained as well as detention facilities at airports and other border terminals where immigrants and others detained by Immigration, Customs and the Ministry of Agriculture and Forestry might be held.

Concerning the legal framework for the protection against torture, the delegation confirmed that in New Zealand, obligations assumed through an international treaty had to be implemented into domestic law. The practice was only to become party to a treaty once existing legislation, policy and practice accorded with the obligations in that treaty.

The delegation said, about the Independent Police Conduct Authority, that it did not use current members of the New Zealand Police to carry out serious investigations, however it did employ some former officers as their intimate knowledge about police practices and administrative processes were particularly useful. However, if these former officers needed to investigate matters where they might have personal involvement, they were asked to step aside to avoid any potential conflict of interest.

Concerning the military, the delegation indicated that serious involvement involving military personnel could be referred to the New Zealand Police in certain circumstances, who would then be required to investigate the allegation. It was thus possible under New Zealand’s complaint processes for a single incident to be investigated by a variety of bodies.

With respect to the minimum age of criminal responsibility, it was currently set at 10 years, said the delegation. However children could only be subjected to criminal prosecution for murder and other culpable homicide at age 10, and at age 14 for other offences. The Government had no current plans to increase the age of criminal responsibility.

On the issue of human rights training for those responsible for the detention of individuals in New Zealand, the delegation confirmed that human rights was part of the training that all correction staff, police offices and other person underwent prior to starting work in detention facilities. Enforcement officers were kept up-to-date with new legislation and changes to existing laws. Medical professionals in all disciplines, especially those working in psychiatric wards, were trained in identifying mistreatment. The training programmes were rigorous and were regularly audited.

The matter of the disproportionate number of Maori who were imprisoned was a matter of deep concern to the Government, and the delegation commented that there were a number of initiatives to respond to this issue.

Concerning the use of Tasers, the delegation said that the operating procedures for the use of the device had been developed following international best practices. A democratic process had occurred and continued to occur in respect to the introduction and future use of Tasers; key community stakeholders had been engaged throughout this process. The operating procedures contained several safeguards to ensure that Tasers were not used inappropriately. Tasers were only to be used by trained and certified staff, they were not to be routinely carried by police officers and could only be deployed when the officer had an honest belief that the subject was capable of carrying out the threat being responded to with the Taser.

Concerning the question on whether there was any recourse possible from a decision of the Independent Police Conduct Authority not to take action on a complaint of torture by the police, the delegation indicated that no specific recourse was available to a complainant in such a case. However, a complainant might institute private civil or criminal proceedings against the police members involved in the incident that had given rise to the complaint.

On the question of whether New Zealand had ever refused to extradite anyone because of a risk that they would be subject to torture, the delegation said that that had never happened. However, the Extradition Act did expressly provide that extradition could not occur where such a risk existed. There could be no refoulement of those people for whom there were substantial grounds for believing they would be in danger of being subjected to torture. New Zealand currently had an administrative process for considering claims of risk of torture if such issues were raised.

On the subject of detention of asylum seekers, the delegation noted that New Zealand had a small territory and thus their immigration issues were of different scale that those of most nations. They had a very small proportion of people unlawfully in New Zealand, around 0.4 percent. Their figures were unusually accurate by world standards, as almost everyone entered by air, and was counted in and out. Starting at the border, some arrivals were refused entry and some claimed asylum. Most people refused entry departed voluntarily and they were not detained. Some people who claimed asylum were detained, based on assessed risk. The majority of asylum seekers were not detained at any stage. The majority of asylum seekers who were detained were held in a low security and open facility, based largely on identity issues. Very few people were held in correctional facilities if, for example, the individual posed a criminality risk or the individual was a security risk. People who had been refused refugees status, including following appeals, might be detained prior to removal if they were considered a “flight risk”.

The delegation also said that some foreign nationals might be detained for deportation if they had been identified as a risk to security, or had been convicted of specified serious offences. But this was infrequent as most foreign nationals complied with immigration and New Zealand law. Detained asylum seekers might challenge the legality of their immigration status and all asylum seekers had the right to a lawyer and to access to an interpreter.

Concerning the conditions of detention in prison for immigration detainees, the delegation said that these were a special category of prisoners and the legislation provided that they had to be treated as accused prisoners. Such prisoners were, as far as was practicable, kept separated from other prisoners and their conditions generally exceeded those of convicted prisoners.

Turning to the issue of the forecast growth in prison capacity, the delegation said that this represented one of their major challenges. They had established a facilities development group within the department that would coordinate and manage this capacity expansion over the next 10 years. They did not envisage any significant difficulty in ensuring that prisoners were safely and humanely managed during this period of prison expansion.

Concerning the use of waist restraints on prisoners, the delegation indicated that this practice had been introduced in order to reduce the risk of prisoners from prisoner violence during prisoner transport, following the death of a 17-year-old youth during a prison escort. The restraints were not uncomfortable for prisoners to wear and were indeed preferred by many prisoners as they created a much safer environment inside prisoner escort vehicles. However, they were seen as an interim solution, before the adoption of new prisoner transport vehicle standards that included the requirements for all vehicles to have single occupant compartments.


Questions by Committee Experts

ALEXANDER KOVALEV, the Committee Chairperson serving as Rapporteur for the report of New Zealand, asked, on asylum seekers, what were the criteria that applied to their detention? Why were they detained in prisons and what happened to asylum seekers that had been identified as criminals? On diplomatic assurances, why did New Zealand not use a so-called list of safe countries?

MYRNA Y. KLEOPAS, the Committee Expert serving as Co-Rapporteur for the report of New Zealand, still wondered about the applicability of the Convention. With regard to the independence of the National Preventive mechanisms, to whom were these bodies accountable to? Did they have to report to the department of justice? What happened when, during a trial it became clear that evidence had been obtained under torture? Did a second trial start in the first trial?

Other Committee Experts made comments and asked various questions, including on the age of criminal responsibility and the fact that the Government had no plan to increase this age. One reason to do so would be to think about the current overcrowding in prisons; raising the age for criminal responsibility would help to solve this problem.

On the issue of Tasers, one Committee member wondered why the Government had decided that police should carry these so-called “less-lethal weapons”, when until now, the police was not carrying any weapon at all. Also, the Expert noted that the fact that Tasers were considered as being “less-lethal” often resulted in careless use. There had been several cases around the world where people had been shot several times by a Taser, sometimes up to nine times, which had resulted in the death of the persons.

Another Expert underlined the worldwide problem that children in psychiatric institutions seemed quite vulnerable to sexual abuse. It was good that in New Zealand, the Ombudsperson had the authority to visit psychiatric facilities; it was very important to have regular investigations of such institutions.

One Expert further worried about the potential use of Tasers against children, as children could also be considered as potentially dangerous by law enforcement officers. The Expert noted that this new weapon had not yet been fully tested and had been lethal in some cases and was worried about the slow dissemination and the extension of use of Tasers. In order to protect human rights, Tasers should be regulated in more detail.

Among other questions asked by Experts were whether there were any plans to increase Maori representation in the police and the law enforcement agencies. Also, the Committee had received information from the civil society that the current text of the new immigration bill, which was currently in its second reading, ruled out bail for any offence and effectively removed the possibility for Habeas corpus. What information could the delegation give on this?

On the introduction of the Taser, this created a downward spiral for the introduction of other similar new weapons, noted another Expert. They often provided a false sense of security.

Response by Delegation

Responding to additional questions raised, the delegation of New Zealand said that, on the age of criminal responsibility, in fact the age of ten only related to culpable homicide and not to any other cases. With regard to the use of Tasers, it was clear that as with any other weapon, they were capable of misuse. This was why there were clear rules on their use.

On the criteria for putting asylum seekers in prison, the delegation indicated that they would not be detained in prison normally. This happened only for criminality or security issues. Also, New Zealand only removed people to the country of nationality and never when there was a risk of torture upon return. New Zealand also took full cognizance of United Nations lists which indicated countries in which returnees would be at risk.

Concerning the high percentage of Maori prisoners, the delegation indicated that New Zealand was continuing to address this issue through ongoing strategic plans. They had introduced Maori cultural principles in rehabilitation programmes. Visitor policy allowed Maori elders to visit detainees, as sadly most of the Maoris in prisons were dislocated from their culture. Maori language classes were also available for prisoners. The Department of Corrections also had an ongoing strategy to increase Maori staff in prisons.
On the issue of Tasers, the delegation noted that the New Zealand Government was aware of the concerns that had been raised by several parties and was committed to ensure that their use would not be abused by the limited range of officers that would be allowed to carry them. These officers also had to get the permission of the duty officer in order to carry a Taser with them.

With respect to the use of Tasers against minors, the delegation noted that any officer deploying it had to have an honest belief that the person was capable of carrying out the threat being responded to with the Tasers. It had to be a proportionate response to the threat posed.

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