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COMMITTEE AGAINST TORTURE REVIEWS THIRD PERIODIC REPORT OF NEW ZEALAND
11 May 2004
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Committee against Torture
MORNING 11 May 2004
The Committee against Torture this morning reviewed the third periodic report of New Zealand on its efforts to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Tim Caughley, Ambassador and Permanent Representative of New Zealand to the United Nations Office at Geneva, introduced the report, saying that New Zealand placed the highest importance on fulfilling its international human rights obligations, and the country actively sought to promote universal ratification and adherence to the six core human rights treaties and their optional protocols.
New Zealand deplored torture, Mr. Caughley affirmed, adding that in the period under review, no one had been convicted or charged with committing an act of torture in the country. New Zealand had intensified its efforts to ensure that the country maintained a society that was free from torture and all forms of cruel, inhuman or degrading treatment or punishment, he added.
Andreas Mavrommatis, the Committee Expert who served as Rapporteur for the report, said New Zealand had done all that was required of it in complying with the Convention. The report was well compiled and it had affirmed the non-existence of acts of torture in the country. He drew attention to the imprisonment of asylum seekers and in some cases the solitary confinement of some individuals.
Sayed Kassem El Masry, Committee Expert and Co-Rapporteur for the report, said nearly all bodies that were concerned with human rights, including the Committee, were disturbed by lengthy terms of solitary confinement. In connection with New Zealand, he raised the case of an Algerian refugee, Ahmed Zaoui, who was reportedly put in detention for an indefinite period without any charge and was kept in solitary confinement, Mr. El Masry said the Human Rights Foundation of New Zealand considered that his treatment and ongoing detention in solitary confinement amounted to cruel, inhumane or degrading treatment.
Other Committee Experts also raised questions on issues pertaining to, among other things, mixing juvenile offenders with adult inmates; the accountability of private firms which provided service in government prison facilities; the breakdown of the prison population, including the proportion of Maori and non-citizens; and sexual violence in prisons and detention centres.
Also representing New Zealand were Phil McCarthy, General Manager, Public Prisons, Department of Corrections; Stephanie Edwards, Office Solicitor for Public Prisons Service, Department of Corrections; Val Sim, Chief Legal Counsel, Ministry of Justice; Brendan Quirk, Chief Operations Officer, New Zealand Immigration Service; Kristina Kirk, Policy Analyst, New Zealand Immigration Service; Don Matheson, Deputy Director-General, Ministry of Health; and Jillian Dempster, First Secretary, New Zealand Permanent Mission in Geneva.
The delegation will return to the Committee at 3 p.m. on Wednesday, 12 May, to provide its response to the questions raised this morning.
New Zealand is among the 135 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.
When the Committee reconvenes at 3 p.m., it is scheduled to hear the replies of Chile to questions raised by Committee Experts on Monday, 10 May.
Report of New Zealand
The third periodic report of New Zealand (CAT/C/49/Add.3) deals with new measures which give effect to the provisions of the Convention and other relevant developments. It also addresses issues raised by the Committee in its consideration of New Zealand’s second periodic report. In the period under review (January 1995 to January 2001), no one has been convicted or charged with committing an act of torture in the country as the term torture is defined in the Convention. As of April 2001, a police investigation was continuing into an allegation by a prisoner that a prison officer had assaulted him in February 2001.
The report notes that the New Zealand police is currently in the process of compiling six major manuals of best practices to cover virtually the entire gambit of practices and procedures for those tasks a police officer may be called upon to perform in the course of his or her duties. Also, the training of New Zealand corrections officers continues to undergo enhancement.
Presentation of Report
TIM CAUGHLEY, Ambassador and Permanent Representative of New Zealand to the United Nations Office at Geneva, said his country placed the highest importance on fulfilling its international human rights obligations. New Zealand actively sought to promote universal ratification and adherence to the six core human rights treaties and their optional protocols. New Zealand deplored torture. In the period under review, no one had been convicted or charged with committing an act of torture in New Zealand. The State had intensified its efforts to ensure that it maintained a society that was free from torture and all forms of cruel, inhuman or degrading treatment or punishment.
Since the submission of New Zealand’s report in 2001, there had been major legislative and administrative advances in the prevention of torture and cruel, inhuman or degrading treatment, Mr. Caughley continued. The most significant development was that New Zealand had carried out an extensive review of the legislation governing New Zealand’s corrections system. The Corrections Bill and its regulations were expected to come into force by November 2004. The new legislation would significantly impact on the human rights of offenders.
Addressing the consequences for New Zealand of the events of 11 September 2001, Mr. Caughley said the terrorist actions had shocked the international community. The Government had condemned the actions and had joined the international campaign against terrorism. In this regard, it had contributed to international efforts across a full range of diplomatic, legal, humanitarian, intelligence and military activities. New Zealand considered that terrorism was a threat to human rights and that States had an obligation to protect their citizens from it.
Mr. Caughley said his country fully protected human rights while countering terrorism and recognized that torture was among those human rights from which no derogation was permitted. In the international setting, New Zealand had co-sponsored resolutions in the Commission on Human Rights and the United Nations Third Committee on Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In the domestic context, counter terrorism measures in recent legislative changes did not permit rights under the New Zealand Bill of Rights Act to be overridden nor did they justify or excuse an offence against the Crimes of Torture Act 1989. The new legislation was the Terrorism Suppression Act 2002, the main focus of which was to combat the financing of terrorism. The Act made no change to the rights of persons detained in police custody and would not include new detention powers.
Response
Responding to written questions prepared by the Committee in advance and sent to the State party, the members of the delegation said, among other things, that New Zealand ensured that rights of persons detained under police custody were fully protected. Those rights were affirmed under various acts, including the New Zealand Bill of Rights Act 1990. Sanctions for failure to observe the rights of persons in custody could include exclusion of evidence which was improperly obtained. There was no general right to use force or violence on detained persons. Any force used on a prisoner should always be reasonable and the minimum necessary in the circumstances, otherwise an offence was committed.
Asked if New Zealand’s domestic law specifically provided that no exceptional circumstances be used in justification of torture, the delegation said New Zealand considered that States could never be justified in using torture for any purposes such as national security or the prevention of crime. However, as there had been no prosecutions of torture in New Zealand, the courts had not tested the availability of specific legal defences.
On the issue of non-refoulement, the delegation said New Zealand implemented its international obligations through a combination of legislation and administrative measures. Its non-refoulement obligation was taken into account and respected in official decision-making, including by specialized tribunals and the courts, which concerned the refusal of entry to or removal of a person from New Zealand.
As of 12 March 2004, nine asylum seekers who had arrived at the border had been detained at Auckland Central Remand Prison, the delegation said. Detention of asylum seekers in prison was necessary in a small number of cases where a person was a risk to national security or a danger to the community. Such persons were detained under the Immigration Act 1987. There was no capacity at the Auckland Prison to segregate asylum seekers from remand prisoners. The small numbers involved and the nature of their treatment had not warranted the commissioning of separate secure facilities. The United Nations High Commissioner for Refugees (UNHCR) had observed that the current system of detention for asylum seekers was not of any serious concern. There had been no cases of refoulement of a person to whom either article 3 of the Convention or article 33 of the Convention Relating to the Status of Refugees applied.
Asked whether complaints for crimes of torture or acts amounting to cruel, inhumane or degrading treatment, had been filed since 1 January 2001, the delegation said there had been none. The Attorney General’s consent was required for prosecutions under the Crimes of Torture Act 1989. There had been no prosecutions for offences against the Act. Since 1 January 2001, there had been a number of allegations against police officers of assault or improper use of force in the course of duty. There were 14 allegations of assault that did or might have arisen while on duty. Nine of those cases were dealt with by assault charges being laid in the District Court – one person pleaded guilty, 5 were acquitted and 3 cases were yet to be completed.
All police officers received the clear message, as part of their initial and ongoing training, that torture and other cruel, inhumane and degrading treatment was not permissible and was not to be practiced, the delegation said. In the course of completing their training, all police recruits were exposed to issues and practice relating to the Convention against Torture.
Inspectors might visit prisons at any time to view the facilities, interview inmates and staff, and investigate complaints, the delegation said. Those unscheduled visits were in addition to their regular scheduled visits to prisons, and usually occurred with variable frequency.
New Zealand had entered one reservation to the Convention, in which the Government reserved the right to award compensation to victims of torture only at the discretion of the Attorney General, the delegation said. Since the reservation was entered, however, there had been a number of legislative reforms and common law developments that had enabled victims of torture to seek compensation and other forms of redress. Accordingly, the question of withdrawing the reservation was under active consideration by the Government.
Discussion
ANDREAS MAVROMMATIS, the Committee Expert who acted as Rapporteur for the report of New Zealand, said New Zealand had done all that was required of it in complying with the Convention against Torture. The report was well compiled and it had affirmed the non-existence of acts of torture in the country.
Mr. Mavrommatis asked why article 3 of the Convention was not regulated in law, in order to clearly implement matters relating to refoulement.
With regard to measures taken after 11 September 2001, the Rapporteur said the fact that asylum seekers were held in prisons might be seen by others as though they were held for being terrorists. It had been reported that the period of imprisonment of asylum seekers was short after the implementation of the new legislation. He asked if imprisoned persons used the principle of habeas corpus.
The delegation was requested to explain about the training of private security officers who were involved in Government activities. The Rapporteur recommended that New Zealand ratify the UN Convention on Statelessness and that it streamline all requests of asylum seekers.
SAYED KASSEM EL MASRY, Committee Expert and Co-Rapporteur for the report, said nearly all bodies that were concerned with human rights, including the Committee, were disturbed by lengthy terms of solitary confinement in prisons. In New Zealand, nine prisoners had gone to court alleging that their lengthy term in solitary confinement, which in respect to one of them accumulated to 4 years and nine months and another an uninterrupted term of 2 years, amounted to psychological torture and other breaches of the Convention. The conditions of the confinement were either below standard or in direct violation of regulations, such as strip searches, locked privacy and deprivation of dignity. The Committee was informed that the ruling was expected during this month of May.
In another case, Mr. El Masry said that the case known as Taunoa and others (CP133/2002), had alleged that it took the authorities 8 months to start an investigation raising questions about the fulfilment of the obligation under article 12 and 13 of the Convention. The delegation was asked to comment on those allegations.
Concerning the treatment of an Algerian refugee, Ahmed Zaoui, who was put in detention for an indefinite period without any charge and was kept in solitary confinement, Mr. El Masry said the Refugee Status Appeal Authority had granted his refugee status and determined that there were no serious reasons for considering that he was a security risk. Nevertheless, Mr. Zaoui continued in solitary confinement despite requests from his council for review. The Human Rights Foundation of New Zealand considered that his treatment and ongoing detention in solitary confinement amounted to cruel, inhumane and degrading treatment. Mr. Zaoui had been detained since December 2002 without criminal charge, and remained in solitary confinement for ten and half months, with 23 hours lockdown a day.
Mr. El Masry referred to reports by non-governmental organizations alleging that children of asylum seekers were detained with their parents, that Government officials dealing with asylum seekers reportedly lacked knowledge of international law and other treaties, and that the written guidelines they used were illegal. She asked the delegation to comment on these issues.
Other Committee Experts also raised questions. They asked, among other things, whether juvenile offenders deprived of liberty were kept separate from adult inmates; the accountability of the private firms called to provide service in government prison facilities; the breakdown of the prison population, including the proportion of Maori and non-citizens; and the mechanisms to monitor sexual violence in prisons and detention centres.
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MORNING 11 May 2004
The Committee against Torture this morning reviewed the third periodic report of New Zealand on its efforts to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Tim Caughley, Ambassador and Permanent Representative of New Zealand to the United Nations Office at Geneva, introduced the report, saying that New Zealand placed the highest importance on fulfilling its international human rights obligations, and the country actively sought to promote universal ratification and adherence to the six core human rights treaties and their optional protocols.
New Zealand deplored torture, Mr. Caughley affirmed, adding that in the period under review, no one had been convicted or charged with committing an act of torture in the country. New Zealand had intensified its efforts to ensure that the country maintained a society that was free from torture and all forms of cruel, inhuman or degrading treatment or punishment, he added.
Andreas Mavrommatis, the Committee Expert who served as Rapporteur for the report, said New Zealand had done all that was required of it in complying with the Convention. The report was well compiled and it had affirmed the non-existence of acts of torture in the country. He drew attention to the imprisonment of asylum seekers and in some cases the solitary confinement of some individuals.
Sayed Kassem El Masry, Committee Expert and Co-Rapporteur for the report, said nearly all bodies that were concerned with human rights, including the Committee, were disturbed by lengthy terms of solitary confinement. In connection with New Zealand, he raised the case of an Algerian refugee, Ahmed Zaoui, who was reportedly put in detention for an indefinite period without any charge and was kept in solitary confinement, Mr. El Masry said the Human Rights Foundation of New Zealand considered that his treatment and ongoing detention in solitary confinement amounted to cruel, inhumane or degrading treatment.
Other Committee Experts also raised questions on issues pertaining to, among other things, mixing juvenile offenders with adult inmates; the accountability of private firms which provided service in government prison facilities; the breakdown of the prison population, including the proportion of Maori and non-citizens; and sexual violence in prisons and detention centres.
Also representing New Zealand were Phil McCarthy, General Manager, Public Prisons, Department of Corrections; Stephanie Edwards, Office Solicitor for Public Prisons Service, Department of Corrections; Val Sim, Chief Legal Counsel, Ministry of Justice; Brendan Quirk, Chief Operations Officer, New Zealand Immigration Service; Kristina Kirk, Policy Analyst, New Zealand Immigration Service; Don Matheson, Deputy Director-General, Ministry of Health; and Jillian Dempster, First Secretary, New Zealand Permanent Mission in Geneva.
The delegation will return to the Committee at 3 p.m. on Wednesday, 12 May, to provide its response to the questions raised this morning.
New Zealand is among the 135 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.
When the Committee reconvenes at 3 p.m., it is scheduled to hear the replies of Chile to questions raised by Committee Experts on Monday, 10 May.
Report of New Zealand
The third periodic report of New Zealand (CAT/C/49/Add.3) deals with new measures which give effect to the provisions of the Convention and other relevant developments. It also addresses issues raised by the Committee in its consideration of New Zealand’s second periodic report. In the period under review (January 1995 to January 2001), no one has been convicted or charged with committing an act of torture in the country as the term torture is defined in the Convention. As of April 2001, a police investigation was continuing into an allegation by a prisoner that a prison officer had assaulted him in February 2001.
The report notes that the New Zealand police is currently in the process of compiling six major manuals of best practices to cover virtually the entire gambit of practices and procedures for those tasks a police officer may be called upon to perform in the course of his or her duties. Also, the training of New Zealand corrections officers continues to undergo enhancement.
Presentation of Report
TIM CAUGHLEY, Ambassador and Permanent Representative of New Zealand to the United Nations Office at Geneva, said his country placed the highest importance on fulfilling its international human rights obligations. New Zealand actively sought to promote universal ratification and adherence to the six core human rights treaties and their optional protocols. New Zealand deplored torture. In the period under review, no one had been convicted or charged with committing an act of torture in New Zealand. The State had intensified its efforts to ensure that it maintained a society that was free from torture and all forms of cruel, inhuman or degrading treatment or punishment.
Since the submission of New Zealand’s report in 2001, there had been major legislative and administrative advances in the prevention of torture and cruel, inhuman or degrading treatment, Mr. Caughley continued. The most significant development was that New Zealand had carried out an extensive review of the legislation governing New Zealand’s corrections system. The Corrections Bill and its regulations were expected to come into force by November 2004. The new legislation would significantly impact on the human rights of offenders.
Addressing the consequences for New Zealand of the events of 11 September 2001, Mr. Caughley said the terrorist actions had shocked the international community. The Government had condemned the actions and had joined the international campaign against terrorism. In this regard, it had contributed to international efforts across a full range of diplomatic, legal, humanitarian, intelligence and military activities. New Zealand considered that terrorism was a threat to human rights and that States had an obligation to protect their citizens from it.
Mr. Caughley said his country fully protected human rights while countering terrorism and recognized that torture was among those human rights from which no derogation was permitted. In the international setting, New Zealand had co-sponsored resolutions in the Commission on Human Rights and the United Nations Third Committee on Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In the domestic context, counter terrorism measures in recent legislative changes did not permit rights under the New Zealand Bill of Rights Act to be overridden nor did they justify or excuse an offence against the Crimes of Torture Act 1989. The new legislation was the Terrorism Suppression Act 2002, the main focus of which was to combat the financing of terrorism. The Act made no change to the rights of persons detained in police custody and would not include new detention powers.
Response
Responding to written questions prepared by the Committee in advance and sent to the State party, the members of the delegation said, among other things, that New Zealand ensured that rights of persons detained under police custody were fully protected. Those rights were affirmed under various acts, including the New Zealand Bill of Rights Act 1990. Sanctions for failure to observe the rights of persons in custody could include exclusion of evidence which was improperly obtained. There was no general right to use force or violence on detained persons. Any force used on a prisoner should always be reasonable and the minimum necessary in the circumstances, otherwise an offence was committed.
Asked if New Zealand’s domestic law specifically provided that no exceptional circumstances be used in justification of torture, the delegation said New Zealand considered that States could never be justified in using torture for any purposes such as national security or the prevention of crime. However, as there had been no prosecutions of torture in New Zealand, the courts had not tested the availability of specific legal defences.
On the issue of non-refoulement, the delegation said New Zealand implemented its international obligations through a combination of legislation and administrative measures. Its non-refoulement obligation was taken into account and respected in official decision-making, including by specialized tribunals and the courts, which concerned the refusal of entry to or removal of a person from New Zealand.
As of 12 March 2004, nine asylum seekers who had arrived at the border had been detained at Auckland Central Remand Prison, the delegation said. Detention of asylum seekers in prison was necessary in a small number of cases where a person was a risk to national security or a danger to the community. Such persons were detained under the Immigration Act 1987. There was no capacity at the Auckland Prison to segregate asylum seekers from remand prisoners. The small numbers involved and the nature of their treatment had not warranted the commissioning of separate secure facilities. The United Nations High Commissioner for Refugees (UNHCR) had observed that the current system of detention for asylum seekers was not of any serious concern. There had been no cases of refoulement of a person to whom either article 3 of the Convention or article 33 of the Convention Relating to the Status of Refugees applied.
Asked whether complaints for crimes of torture or acts amounting to cruel, inhumane or degrading treatment, had been filed since 1 January 2001, the delegation said there had been none. The Attorney General’s consent was required for prosecutions under the Crimes of Torture Act 1989. There had been no prosecutions for offences against the Act. Since 1 January 2001, there had been a number of allegations against police officers of assault or improper use of force in the course of duty. There were 14 allegations of assault that did or might have arisen while on duty. Nine of those cases were dealt with by assault charges being laid in the District Court – one person pleaded guilty, 5 were acquitted and 3 cases were yet to be completed.
All police officers received the clear message, as part of their initial and ongoing training, that torture and other cruel, inhumane and degrading treatment was not permissible and was not to be practiced, the delegation said. In the course of completing their training, all police recruits were exposed to issues and practice relating to the Convention against Torture.
Inspectors might visit prisons at any time to view the facilities, interview inmates and staff, and investigate complaints, the delegation said. Those unscheduled visits were in addition to their regular scheduled visits to prisons, and usually occurred with variable frequency.
New Zealand had entered one reservation to the Convention, in which the Government reserved the right to award compensation to victims of torture only at the discretion of the Attorney General, the delegation said. Since the reservation was entered, however, there had been a number of legislative reforms and common law developments that had enabled victims of torture to seek compensation and other forms of redress. Accordingly, the question of withdrawing the reservation was under active consideration by the Government.
Discussion
ANDREAS MAVROMMATIS, the Committee Expert who acted as Rapporteur for the report of New Zealand, said New Zealand had done all that was required of it in complying with the Convention against Torture. The report was well compiled and it had affirmed the non-existence of acts of torture in the country.
Mr. Mavrommatis asked why article 3 of the Convention was not regulated in law, in order to clearly implement matters relating to refoulement.
With regard to measures taken after 11 September 2001, the Rapporteur said the fact that asylum seekers were held in prisons might be seen by others as though they were held for being terrorists. It had been reported that the period of imprisonment of asylum seekers was short after the implementation of the new legislation. He asked if imprisoned persons used the principle of habeas corpus.
The delegation was requested to explain about the training of private security officers who were involved in Government activities. The Rapporteur recommended that New Zealand ratify the UN Convention on Statelessness and that it streamline all requests of asylum seekers.
SAYED KASSEM EL MASRY, Committee Expert and Co-Rapporteur for the report, said nearly all bodies that were concerned with human rights, including the Committee, were disturbed by lengthy terms of solitary confinement in prisons. In New Zealand, nine prisoners had gone to court alleging that their lengthy term in solitary confinement, which in respect to one of them accumulated to 4 years and nine months and another an uninterrupted term of 2 years, amounted to psychological torture and other breaches of the Convention. The conditions of the confinement were either below standard or in direct violation of regulations, such as strip searches, locked privacy and deprivation of dignity. The Committee was informed that the ruling was expected during this month of May.
In another case, Mr. El Masry said that the case known as Taunoa and others (CP133/2002), had alleged that it took the authorities 8 months to start an investigation raising questions about the fulfilment of the obligation under article 12 and 13 of the Convention. The delegation was asked to comment on those allegations.
Concerning the treatment of an Algerian refugee, Ahmed Zaoui, who was put in detention for an indefinite period without any charge and was kept in solitary confinement, Mr. El Masry said the Refugee Status Appeal Authority had granted his refugee status and determined that there were no serious reasons for considering that he was a security risk. Nevertheless, Mr. Zaoui continued in solitary confinement despite requests from his council for review. The Human Rights Foundation of New Zealand considered that his treatment and ongoing detention in solitary confinement amounted to cruel, inhumane and degrading treatment. Mr. Zaoui had been detained since December 2002 without criminal charge, and remained in solitary confinement for ten and half months, with 23 hours lockdown a day.
Mr. El Masry referred to reports by non-governmental organizations alleging that children of asylum seekers were detained with their parents, that Government officials dealing with asylum seekers reportedly lacked knowledge of international law and other treaties, and that the written guidelines they used were illegal. She asked the delegation to comment on these issues.
Other Committee Experts also raised questions. They asked, among other things, whether juvenile offenders deprived of liberty were kept separate from adult inmates; the accountability of the private firms called to provide service in government prison facilities; the breakdown of the prison population, including the proportion of Maori and non-citizens; and the mechanisms to monitor sexual violence in prisons and detention centres.
* *** *