New Zealand: UN expert group raises concern despite legal safeguards against arbitrary detention

WELLINGTON (7 April 2014) – The United Nations Working Group on Arbitrary Detention today expressed concern at specific areas of deprivation of liberty in New Zealand, and recommended several ways for improvement*.

At the end of their first official visit to the country, the human rights experts drew special attention to the wider use of preventive detention and the over-representation of Māori in the prison population, as well as loopholes in law and practices with regard to judicial proceedings involving persons with mental or intellectual disabilities.

The independent experts noted that, overall, legislation on deprivation of liberty in New Zealand is well-developed and consistent with international law and human rights standards, but urged the authorities to address their concerns.

“If a prisoner has served the sentence imposed at the time of conviction, international law prohibits equivalent detention under the label of civil preventive detention,” said UN human rights expert Mads Andenas, who currently heads the Working Group. “The grounds for detention must be defined with sufficient precision to avoid overly broad or arbitrary application.”

“The over-representation of Māori also poses a significant challenge,” Mr. Andenas stressed, noting that the Māori make up for more than 50 per cent of the prison population while they comprise some 15 per cent of the population of New Zealand.

The UN group urged the authorities to address the disproportionate negative impacts on Mâori of criminal justice legislation extending sentences or reducing probation or parole, while recommending a review of the degree of inconsistencies and systemic bias against Mâori at all levels of the criminal justice system, typically where social status or disability are aggravating or mitigating factors in the assessment of risk.

“The authorities should continue searching for creative and integrated solutions to the root causes which lead to disproportionate incarceration rates of the Māori population in New Zealand,” he said.

During the visit, the Working Group paid particular attention to the situation of refugees, asylum-seekers and migrants in an irregular situation. In 2012, the Government accepted 690 refugees from third countries for resettlement and makes efforts to facilitate their integration in the country.

The expert group noted that New Zealand is using the prison system and police stations to detain irregular migrants and asylum seekers, although the country does not have a mandatory detention policy for asylum-seekers, refugees or migrants in an irregular situation.

“Detention of asylum-seekers, refugees and migrants in an irregular situation should normally be avoided and only be a measure of last resort,” said Roberto Garretón, the other member of the Working Group’s delegation visiting New Zealand.

“Any transfer of asylum-seekers who arrive by boat to the ‘processing centres’ of Nauru and Papua New Guinea would be in breach of international law,” he underscored.

Concerning the detention of persons with mental or intellectual disabilities, the experts pointed out that that the legislative framework is not effectively implemented to ensure that arbitrary deprivation of liberty does not occur.

“Compulsory treatment orders are largely clinical decisions and it is difficult to effectively challenge such orders,” Mr. Andenas said. “Persons undergoing compulsory assessments are often unrepresented in practice, as they do not have access to legal aid.”

The Working Group also noted that, despite the increasing number of older persons staying in residential care, there is little protection against arbitrary deprivation of their liberty.

Lastly, the expert group expressed concern that a notable gap remains in the legislative protection for 17-year-old children. They are considered as adults in the criminal justice system, held criminally liable and tried as adults and, if convicted, sent to adult prisons.

“The recommendations by the UN Committee on the Rights of the Child and the UN Committee Against Torture to extend the protection under the Children, Young Persons and Their Families Act 1989 (CYPF Act) to include 17-year-olds, have not been followed,” Mr. Garretón pointed out. “We urged New Zealand to fully comply with the requirements of the Convention on the Rights of the Child and to withdraw its reservations.”

During the 15-day mission, the experts visited the cities of Auckland, Christchurch, New Plymouth and Wellington, where they held discussions with representatives of the authorities and civil society. They also visited detention facilities, including prisons, police stations and mental health institutions, to meet in private with detainees, their families or representatives, and gathered first-hand information on many cases of deprivation of liberty.

The final report of the visit will be presented to the Human Rights Council in September 2015.

(*) Check the Working Group’s full end-of-mission statement:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14563&LangID=E

ENDS

The Working Group was established by the former Commission on Human Rights in 1991 to investigate instances of alleged arbitrary deprivation of liberty. Its mandate was clarified and extended by the Commission in 1997 to cover the issue of administrative custody of asylum-seekers and immigrants. In September 2013, the Human Rights Council confirmed the scope of the Working Group's mandate and extended it for a further three-year period.

The Working Group is comprised of five independent expert members from various regions of the world. The Chair-Rapporteur is Mr. Mads Andenas (Norway) and the Vice-Chair is Mr. Vladimir Tochilovsky (Ukraine). Other members include Ms. Shaheen Sardar Ali (Pakistan), Mr. Roberto Garretón (Chile) and Mr. El Hadji Malick Sow (Senegal). Learn more, log on to: http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx

Check the Database of the Working Group on Arbitrary Detention: http://www.unwgaddatabase.org/un/

UN Human Rights, Country Page – New Zealand: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/NZIndex.aspx

For more information and press inquiries, please contact:
During the visit:
Miguel de la Lama (mobile: +41 79 444 4078 / mdelalama@ohchr.org) and Junko Tadaki (mobile: +41 79 201 0119 / jtadaki@ohchr.org).
Before and after the visit:
Miguel de la Lama (+41 22 917 9289) and Junko Tadaki (+ 41 22 917 9298) or write to wgad@ohchr.org

For media inquiries related to other UN independent experts:
Xabier Celaya, UN Human Rights – Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)

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