Experts of the Committee against Torture Welcome New Zealand’s Detailed Report, Ask about the High Number of Remand Prisoners and the Over-Representation of Māori in Prisons
The Committee against Torture this afternoon concluded its consideration of the seventh periodic report of New Zealand, with Committee Experts welcoming New Zealand’s detailed report, and asking questions about the high number of remand prisoners and the over-representation of Māori in the prison system.
Bakhtiyar Tuzmukhamedov, Committee Expert and Rapporteur for the report of New Zealand, said in and of itself the report offered a detailed, if not meticulous, overview of legislative and executive measures undertaken by New Zealand during the reporting period.
Ilvija Puce, Committee Expert and Country Rapporteur for the report of New Zealand, said the imprisonment rate in New Zealand was not high, and the report referred to alternatives to imprisonment, and yet the percentage of remand prisoners was very high. What alternatives to imprisonment did not work, Ms. Puce asked, and what was being done to reduce the percentage of remand prisoners? Were there any initiatives to reduce the number of persons on remand? The report referred to many positive initiatives with regard to Māori prisoners, and she repeated her question about their over-representation in the prison system, asking what did not work, and what could be improved or done differently in order to remedy this irregular and disproportionate situation. What was being done to de-normalise this situation?
Andrew Kibblewhite, Secretary for Justice and Chief Executive of the Ministry of Justice of New Zealand and head of delegation, said the prison population had fallen in recent years, with a dramatic decrease in the number of young persons in prison. However, the remand population had not dropped in the same way, and New Zealand viewed this as problematic. New Zealand was also aware that prolonged remand times could become a human rights issue, and the Government was working to address it. Mr. Kibblewhite also noted that one of the biggest challenges in the country continued to be the over-representation of Māori in the criminal justice system, both as offenders and as victims.
On how to reduce the over-representation of the indigenous in the criminal justice system, the delegation said that in 2018 the Government set up a cross-sector initiative on the criminal justice system across the New Zealand society to share their opinions on how this could be done - Māori had been significantly involved in this. Each agency had subsequently identified initiatives to address these disparities in a significant way, including moving to a Māori-centred approach. Tools, programmes and policies had been developed to address police approaches, in order to reduce Māori in incarceration.
In concluding remarks, Claude Heller, Chairperson and Committee Expert, said the delegation’s willingness to address all topics raised by Rapporteurs and Committee members was proof of New Zealand’s commitment to the Convention.
Mr. Kibblewhite thanked the Committee for the constructive dialogue, and the Rapporteurs for their additional focus on issues and insights made in the conversation. New Zealand looked forward to receiving the concluding observations and determining how it could implement them domestically.
The delegation of New Zealand consisted of representatives of the Ministry of Justice, the Department of Corrections, the Ministry of Health, the New Zealand Police, the Oranga Tamariki (Ministry for Children), and of the Permanent Mission of New Zealand to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of New Zealand at the end of its seventy-seventh session on 28 July. Those and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, and webcasts of the public meetings can be found here.
The Committee will next meet at 10 a.m. on Thursday, 20 July, to start its consideration of the seventh periodic report of Spain (CAT/C/ESP/7).
Report of New Zealand
The Committee has before it the seventh periodic report of New Zealand (CAT/C/NZL/7).
Presentation of Report
ANDREW KIBBLEWHITE, Secretary for Justice and Chief Executive of the Ministry of Justice of New Zealand, said New Zealand strongly valued diversity and took pride in promoting human rights and equal treatment for all people. It recognised that there were always areas in which it could improve human rights protections. The report outlined the significant legislative, judicial, administrative and other measures New Zealand had taken to give better effect to the provisions in the Convention.
There had been significant events since the submission of the report, in particular the COVID-19 pandemic and a terrorist attack in 2019, as well as a cyclone in 2023 which extensively damaged infrastructure, farms and homes. This had also had an impact on the Government’s work programme. In spite of this, there had been significant further action to strengthen protections against torture and ill treatment. There had been criticism of some public health measures taken in the context of the COVID-19 pandemic: in December 2022, the Government set up an independent inquiry to review the management of the pandemic. This inquiry would help to be better prepared for potential future pandemics.
New Zealand had established a national mechanism on reporting, implementation and follow up. The mechanism improved the coordination of reporting activities across all treaties and agencies, and also aimed for better implementation of treaties and recommendations.
The Bill of Rights Act 1990 included the right to be free from torture and ill-treatment. New Zealand’s Optional Protocol system continued to work well with good collaboration and cooperation within the multi-body national preventive mechanism. Since 2019, the Government had twice made changes to the designations of national preventive mechanism entities. These focused on strengthening the monitoring of children in detention.
New Zealand valued the work of the national preventive mechanisms which were aiming for continuous improvements of conditions in all places of detention. They provided specific human rights focussed recommendations to detaining agencies and the Government. Many of these recommendations led to tangible improvements for those in detention. For example, police were continuing with a national police cell remediation programme which addressed repair and design issues, including suicide prevention. The Department of Corrections had recently launched a programme aimed at better outcomes for female Māori prisoners, who made up two-thirds of the female prison population. Changes had also been made to prison regulations.
One of the biggest challenges in the country continued to be the over-representation of Māori in the criminal justice system, both as offenders and as victims. Work to address criminal justice issues remained a priority. There had been concerning increases in pre-trial detention recently. Work was continuing across the criminal justice system, and included extensive collaboration with Māori tribes and other organizations. New Zealand had established a judicially-led programme aiming to ensure that all people who came to court to seek justice will be seen, heard, understood, and will be able to meaningfully participate.
New Zealand still faced significant issues of family and gender-based violence. In 2022, the Government brought all relevant agencies together and established a new entity called Te Puna Aonui to coordinate the cross-agency work to address and prevent family and sexual violence.
With regard to the work of the Royal Commission of Inquiry into historic abuse in State and faith-based care, it had already published a number of interim reports, including one with recommendations on redress. New Zealand acknowledged the enormity of abuse and trauma that had occurred, and the vital importance of learning from past wrongs to make care safer. The Government had also recently changed the system of oversight of Oranga Tamariki, the Ministry in New Zealand responsible for children in State care or at-risk. The changes would further strengthen protections for children.
Following an independent inquiry, work and substantial investment were underway to transform the approach to mental wellbeing. Work was underway to replace the existing legislation that governed when a person may be subject to compulsory mental health care. New Zealand continued its work to reduce and eventually eliminate seclusion and restraint in mental health services.
The Government had agreed to a multi-year work programme to achieve its vision of a diverse, inclusive and safe New Zealand. The New Zealand Law Commission was working on a review of hate speech and hate-motivated offending. The Ministry of Justice was leading work to ensure counter-terrorism legislation was fit for purpose.
Questions by the Rapporteurs
BAKHTIYAR TUZMUKHAMEDOV, Committee Expert and Rapporteur for the report of New Zealand, said in and of itself the report offered a detailed, if not meticulous, overview of legislative and executive measures undertaken by New Zealand during the reporting period. The incorporation of the Convention into domestic law had been a recurring theme in the dialogues between the State party and this Committee.
While the report stated that the wording of the New Zealand Bill of Rights Act in section two “mirrors the Convention”, there seemed to be a difference: not only was there no definition of torture in the Bill, it protected an inherent right of an individual, while the Convention established a duty of a State. The definition of torture as provided under section two of the Crimes of Torture Act was quite comprehensive in the sense of reflecting the elements of the offense as defined in the Convention. The penalty for the act of torture under the Crimes of Torture Act may seem to be in compliance with article 4 of the Convention, had it not been for a proviso that the term of imprisonment should not exceed 14 or 10 years, depending on the gravity of the offence.
With no specific minimum penalty, the court may seem to enjoy considerable discretion and the real sentence may range from maximum to a non-custodial penalty. Also, it was not apparent whether a person convicted under the Act may be eligible for parole. Mr. Tuzmukhamedov asked whether there was any relevant judicial and administrative practice that could provide answers? The Bill also stated that “no one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”. The language of the Bill of Rights Act did not seem, on its face, to guarantee the absolute right to be free from deprivation of life by the act of the State.
The declared purpose of part 1 of the Crimes of Torture Act was “to enable New Zealand to meet its international obligations under the Convention”. This led to a question of the relationship between the Act and the Convention, and, more generally, between domestic and international law. Mr. Tuzmukhamedov asked if concepts of prevalence or supremacy of one over the other would apply to that relationship? Putting aside the question of self-determination, was New Zealand responsible for the implementation of the Convention within the Cook Islands, Niue, and Tokelau? Regarding the place of the Convention in the domestic law of New Zealand, tikanga Maori, was tikanga aware of, and open to international legal influences?
New Zealand maintained a reservation to that provision of the Convention which stated that “the Government of New Zealand reserves the right to award compensation to torture victims referred to in article 14 of the Convention Against Torture only at the discretion of the Attorney-General of New Zealand”. Mr. Tuzmukhamedov requested an update on New Zealand’s attitude towards article 14. What were the reasons for non-participation in the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the International Convention for the Protection of all Persons from Enforced Disappearance, and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights? Could the delegation provide an update, focusing on the discussion of the Convention against Torture and the attitude of the Supreme Court towards this Committee? Had the “Kyung Yup Kim” judgment affected the policy on extradition and assurances?
On the issues falling under article 10 of the Convention, Mr. Tuzmukhamedov asked if the State party had developed any methodology to assess the effectiveness of training and educational programmes in the prevention of torture and ill-treatment? If so, could the delegation share with the Committee conclusions and lessons learned from such evaluations?
On training of military personnel, the Committee was aware that New Zealand military personnel had been deploying internationally as part of the United Nations and other multilateral missions - could the delegation provide information about relevant training, whether general or specifically tailored for deployments abroad, in particular into a situation of an armed conflict? Were New Zealand Defence Force personnel instructed to abide by the Convention, and if so, how detailed and specific was that instruction? Mr. Tuzmukhamedov also requested an update on matters falling under the rubric of human rights safeguards in the context of counter-terrorism measures.
Finally, he noted that the list of issues and the report predated the outbreak of the pandemic. Even before the pandemic subsided, the Committee had made it a standard practice of requesting States parties to provide information on the measures taken by them during the COVID-19 pandemic to ensure that their policies and actions were compatible with obligations under the Convention. States were also requested to describe the measures that had been taken in relation to persons deprived of their liberty, including in places of confinement, such as homes for older persons, hospitals or institutions for persons with intellectual or psychosocial disabilities, and these questions should still be in order in the wake of the pandemic.
ILVIJA PUCE, Committee Expert and Rapporteur for the report of New Zealand, asked a question about independent and sufficient financing of the national human rights institution and what were the future plans to strengthen it and other mechanisms and bodies. Would the Government continue to strengthen the national institution? What was the situation with regard to the implementation of recommendations that the Government had noted as “accepted”? What happened if the national institution had recommendations? What information was available on fundamental legal safeguards? On the provision of legal aid to juveniles, was the presence of a lawyer ensured at all times when that juvenile was being interrogated?
With regard to the police, Ms. Puce referred to the use of spit hoods and pepper spray and the use of force during and after apprehension and arrest, and asked whether there were any complaints and criminal procedures related to these events. Did New Zealand have any programmes to reduce the use of these items? People should naturally be transferred as soon as possible to places of detention if they were not freed - what were the average number of days that people stayed in police cells rather than remand prison or mental hospital, and were there plans meant to deal with this situation, which was far from ideal?
With regard to conditions of detention in prisons and in mental health systems, Ms. Puce referred to over-crowding and the use of adjunct rooms for detaining prisoners, and asked how New Zealand was going to deal with these issues, as putting people in such environments was of no help to anybody. What were the plans to improve conditions in closed institutions?
The imprisonment rate in New Zealand was not high, and the report referred to alternatives to imprisonment, and yet the percentage of remand prisoners was very high. What alternatives to imprisonment did not work, Ms. Puce asked, and what was being done to reduce the percentage of remand prisoners? Were there any initiatives to reduce the number of persons on remand? The report referred to many positive initiatives with regard to Māori prisoners, and she repeated her question on their over-representation in the prison system, asking what did not work, and what could be improved or done differently in order to remedy this irregular and disproportionate situation. What was being done to de-normalise this situation?
What education and training opportunities were there in prisons for adults, but also and particularly for juveniles, Ms. Puce asked, pointing out that it was senseless to keep juveniles locked in a cell for up to 22 hours a day and to expect them to come out better than when they came in. With regard to types of solitary confinement, referred to under other terms such as “strict regime” or “involuntary”, and yet had the same impact no matter the name, the Committee was interested in putting an end to these practices, and wanted to know New Zealand’s ideas and perspectives on putting an end to this issue.
Was there any undergoing ongoing training and what could be put on the curriculum in the context of the Mandela Rules? Did medical staff apply the Istanbul Protocol whilst checking the health of detained persons? Did the staff have a reporting obligation on, for example, inter-prisoner violence? Could the delegation provide figures on prisoner suicide over the last three years? Was staff trained in this context? What kind of work was done to prevent inter-prisoner violence in places of detention? What forms of psychiatric, psychological and spiritual care, including for Māori, was provided in places of detention, and where did this take place? What possibilities existed to get medical care outside of prisons?
Understaffing was an issue in psychiatric institutions, Ms. Puce noted, noting that what was used instead was restraint to deal with persons who were agitated. What protocols were used with regard to restraints, and what were the nature of these, chemical and physical? On seclusion of persons in single rooms for prolonged periods, which was in effect solitary confinement, how did this work?
There were no clear complaint mechanisms, Ms. Puce said, noting that many complaints went no further after being submitted to, for example, the administration of the correctional procedure. They were not registered, which meant that neither the Committee nor the Government could see what the real situation was. The suggestion had been made to set up an independent complaint mechanism - had the Government taken this on board, and if so, what was the situation with regards to its establishment? Did juveniles have enough information as to who they could submit a complaint to, and was it safe for them to do so without there being repercussions?
There were quite high numbers of domestic violence in New Zealand, and the report said 33 per cent were reported to the police - where did this figure come from, Ms. Puce asked? What had been the impact of initiatives to reduce the numbers of incidents of domestic violence, and were there any plans to adapt these initiatives to change the situation going forward?
Questions by Other Committee Experts
One Expert asked what measures had been taken to combat incidents of self-harm and suicide in prisons, also asking for figures in this regard. How were addictions addressed in the prison environment? Were there any specific programmes to address drug and alcohol addictions? Another Expert noted that it was commendable that New Zealand had a Bill decriminalising abortion, and that women could access care over the telephone. This was conducive to the rights of women, and avoided inhumane and degrading treatment of women. Was there a plan to recruit more Māori persons into working in correctional facilities? The provisions in the Criminal Justice Act were a subject of concern for another Expert, who noted that there was a need for a prosecutor to get consent from higher authorities to prosecute a case - did this prove to be a hurdle when dealing with cases of torture or inhumane treatment? Was this consistent with the requirements of the Convention?
Responses by the Delegation
ANDREW KIBBLEWHITE, Secretary for Justice and Chief Executive of the Ministry of Justice of New Zealand, responding to these questions and others, said decisions concerning access to redress had been well disseminated online. The public apology for abuse in care would be delivered once the investigative body, the Royal Commission, concluded its investigations. The report had been publicised and the Government’s response to the Royal Commission’s recommendations would be publicised once they were determined. It had been agreed that some of the abuses amounted to torture, and this would be highlighted in the response.
On counter-terrorism, there were three mechanisms for responding to those who had carried out or were at risk of carrying out a terrorist act, including detention and control orders for those who had been convicted of a terrorist act. Terrorism was defined in the national legislation. The mechanisms were subject to significant legal safeguards, putting the rights of the individual in the frame as much as possible, whilst respecting national security.
Regarding the national preventive mechanisms, Mr. Kibblewhite noted that they were found to be helpful, although a not always convenient group, that raised issues with the Government, which it took seriously. They were experiencing a financing crunch, and the Government was providing funding for some of the mechanisms. The Government recognised the synergies between the national preventive mechanisms and provided funding to maintain the operations of the entities and to enable continuity. The Ombudsman, for example, had received a substantive increase in budget, which was obtained through Parliament: it had a wide range of statutory functions. There had been a significant investment in a range of the preventive mechanism entities over the past years, and the Committee could gain some reassurance from this. The mechanisms had independence, and spoke without fear or favour from the Executive. They were funded in order to carry out their roles and were independent.
On how to reduce the over-representation of the indigenous in the criminal justice system, the delegation said that in 2018 the Government set up a cross-sector initiative on the criminal justice system across the New Zealand society to share their opinions on how this could be done - Māori had been significantly involved in this. Each agency had subsequently identified initiatives to address these disparities in a significant way, including moving to a Māori-centred approach, such as with regard to State care provided to children. Tools, programmes and policies had been developed to address police approaches, in order to reduce Māori in incarceration. Efforts had been made to ensure that therapeutic justice was better achieved for all New Zealand citizens.
At a whole-of-system level, the Chief Executives of the Justice Leadership Board had engaged in a new relationship with Māori leaders, recognising the independence of Māori within the State, in an attempt to try to alleviate inequalities. These initiatives were relatively new, and required a forming of different relationships and partnerships allowing Māori to better participate in the design and co-design of policies aiming to reduce these inequalities. These included initiatives at the family level seeking for a more culturally relevant implication. There were high levels of engagement, and early indications of more positive responses with regard to the outcomes. There were, Mr. Kibblewhite added, efforts to ensure a more consistent response across the board.
Comprehensive guidelines assisted police when addressing any person in custody, the delegation said, and when interviewing children and young people there were clear procedures, including informing family and ensuring the presence of a lawyer. There were special considerations and requirements when interacting with disabled and/or young persons, including using support people in interviews and providing simplified versions of the Bill of Rights Act to ensure that they understood their rights. A young person could not be detained for more than 24 hours, other than in specific cases before trial. With regard to the use of spit hoods and pepper spray, these were used as a last resort by police in certain circumstances. An average of 20 people a year under the age of 18 had had a spit hood used, and an average of 200 people a year over the age of 18, over the last five years. On complaints generated by their use, there had only been 21 complaints of excessive use of force since 2019. The number of complaints per year had stayed at about 8-12 complaints per year.
There were 25 police detention facilities which could be used to detain prisoners on a temporary basis, including prisoners on remand and prisoners awaiting trial. Around 80 per cent of remand or sentenced persons held in police cells were held for less than 24 hours, and 90 per cent held for under 48 hours. In terms of young persons in police custody, such persons were only held until a suitable place or transport to a specifically Ministry-mandated place of detention for such persons was organised.
There had been a rate of growth of the prison population that had been far greater than expected, and it had then reduced again far more than expected, the delegation said. The reduction between 2018 and 2020 gave options to support the response to the pandemic, allowing for the prison population to be spread out. The capacity was defined as the number of operational or open beds, which did not refer to cells as some were two-bed, as per the number that were currently being occupied. The operational capacity was currently 9,100. Currently there was a need for 4,000 officers, but these were not available. The divide between the maximum and operational capacity allowed for decisions to be made as per detentions. Older and poorer condition facilities had been closed, with a priority given to housing inmates in newer facilities.
There had been significant staff shortages across the prison network, placing pressure on the system. These were not unique to the Department of Corrections, but had been visible on other areas. Various decisions had been made to ensure safe detention, including transfer of inmates to other facilities in order to consolidate safe detention. This was done in the context of various requirements. The Department of Corrections was identifying means to reduce the pressure placed on staff.
On treatment for addictions and access to treatment and rehabilitation, the Department of Corrections provided various programmes aimed at the various needs of the population, including Māori, women, and young people, aimed at reducing recidivism by addressing causes. There were no specific programmes for persons with disabilities. Individual treatment, such as with psychologists, was available. With regard to the rise in the remand ratio, there was a short-programme delivery for those who were awaiting trial or were new to custody. The Department had made changes to its mental health services, supporting more agile ways of working and stronger inter-organisational links, focusing on delivering a model of care prioritising better outcomes. Culturally sensitive care was also provided, with, among others, Māori-specific programmes aimed at reducing violence, including domestic violence.
On training in juvenile justice, the delegation said there was a required training programme before staff could take up duties, and the length of this had been repeatedly extended, currently amounting to six weeks. It included training on domestic law as it applied to youth justice detention facilities. Where detainees were under the legal age, they were given continued schooling and education, including focus on their particular needs such as attention deficit hyperactivity disorder or other learning difficulties. Older teenagers could continue with the educational curriculum, or were given vocational training. There was a grievance process in the youth justice institution, although it appeared that it often seemed as though there was no faith in this process by young people, and this needed to be addressed. There were programmes and efforts being made in this regard. In the mainstream of youth residences, there were no locks on rooms, and they were thus not generally detained in their rooms unless they showed risk of attempts to escape.
Mr. Kibblewhite said he hoped that the delegation was fulfilling the criteria for constructive engagement. On what the public service was doing to increase the number of Māori public servants and what was being done to increase awareness of this among the population as a whole, the delegation said the Public Service Act included the obligation of the public service to engage with the Māori and take into account Māori perspectives, whilst reporting the achievements towards greater capability of the public service to engage with the Māori. The Government agency responsible for overseeing this work supported agencies to develop specific plans to grow Māori capability and ensure that they could work in a culturally appropriate way. This had led to a number of new features, such as the Healthy Futures Act. New Zealand now had the highest number of Māori tier one and tier two leaders in its history.
There was a family-centred initiative overseen by Māori tribal leaders to support Māori through the court process, aiming to reduce the imprisonment rates for Māori and providing judges with better information about offenders’ background and circumstances, with the aim of ensuring alternatives to incarceration and helping to avoid repeat offences. Initiatives aimed to reduce the overall number of Māori in the correction system, and learning from this would support wider system change. Projects were considered with families, tribes and sub-tribes, including those with lived experience. Māori-centred practice was also incorporated into new initiatives to make them more appropriate and effective for Māori. There had been a significant increase in the number of Māori in the judiciary.
On how tikanga Māori interacted with evolving international human rights law, Mr. Kibblewhite said that with regard to whether there was conflict between the two, New Zealand was a dualist system - international human rights law was not directly enforceable unless it was part of the system. Tikanga Māori was a common-law system and its incorporation in the law was taking place on a case-by-case basis. The question of the influence of international laws on tikanga had not yet been considered by the courts, but would be if there was a conflict that emerged in future cases. Tikanga could manifest in the general law in various ways, depending on circumstances, and thus its legal application would vary according to the situation.
New Zealand’s age of criminal responsibility was graduated as per the gravity of the offence, Mr. Kibblewhite said. There had been a surge of activity such as ram-raids by very young children - officials had been working through the implications of amending the age of criminal responsibility, but no decisions had been taken yet, and New Zealand would include this issue in its next periodic review.
On minimum penalties under the Crime of Torture Act 1989, this Act did not provide a specific minimum penalty. New Zealand’s offence provisions did not generally include acquired minimum penalties, which avoided there being a mandated punishment, and the punishment being unjustifiably severe, leading to fairer sentencing. A minimum period of imprisonment could be possible for crimes of torture, but there currently existed no precedent, as there had never been sentencing for the crime of torture under the Act as it was. Courts were invited to consider the gravity of the offence, as well as its type. New Zealand was committed to the investigation and resolution of all allegations of torture. In New Zealand, prosecution decisions were made by an independent body, usually the police. This independence meant freedom from improper or other pressure. The Attorney General was the chief officer for the crime, and the requirement for the Attorney General to consent to prosecution of torture reflected the seriousness of the issue, and New Zealand did not consider it to be a barrier to investigation. The Solicitor General had the obligation to oversee all investigations, and this maintained the non-political nature of these investigations, as the Solicitor General was not a political appointment.
Persons with disabilities had a dedicated agency that took a holistic approach, including the community, rather than considering health needs only. The Māori health initiative was responsible for ensuring the health system worked well for Māori, and worked to understand their health needs and aspirations, in the context of partnership and self-determination for planning and decision-making for health services at the local level. In the new health and disability system, the Ministry of Health had an emphasis on system stewardship, aiming to deliver better health outcomes for all. There had been significant changes to the mental health system, and mental well-being was a Government priority, aiming to transform mental well-being for all, part of the Government’s response to the mental health inquiry report into mental health and addiction of 2018. It aimed to encourage the population to stay well, whilst providing health and addiction services, including for Māori and those who experienced less than optimum outcomes. It was supported by cross-sectoral investment.
The penal infrastructure required investment, the delegation said, and was a priority for the Government, which had established the mental health infrastructure programme in 2021, with the objective of ensuring that new and refurbished facilities would be culturally and physically safe, fit for purpose, and meet the needs of the community. The transformation of the health and disability sector provided the opportunity to address many issues, including the needs for acute and hospital-level care in all communities, enabling a more proactive planning approach to de-escalate capacity pressures, and trialling new methods of support to meet people’s needs, thus relieving the pressure on specialised services. Recruiting and retaining health staff was a problem nationally, and there was a large programme of work underway to increase the existing work force, and improve its skills.
In 2009, a seclusion avoidance programme had been adopted, the delegation said, and the figures had diminished, bearing in mind an up-tick during the COVID-19 pandemic. Inequities in the rates of seclusion for Māori and Pacifica people remained unacceptably high. The Ministry of Health acknowledged that whilst work had been done to reduce these, more remained to be done. A nation-wide collaboration project had been launched in this regard: progress had been made, with some services now achieving zero seclusion for some periods of time. Seclusion was only permitted under statutory oversight and in the context of the guidelines, and its use was monitored and reported. There was a training course on best practices, including de-escalation and teaching of personal restraint and break-away techniques, which were non-pain and non-prone.
The New Zealand Defence Forces were developing training for all members of the Defence Forces on torture, based on the fundamental standards for detainees, and including various aspects. It did not refer specifically to the Convention or the Istanbul Protocol, but would cover the obligation to report and refrain from all acts of torture or ill-treatment, Mr. Kibblewhite said. Where a migrant had reported fear of torture if returned, then there was an obligation to report.
On pre-trial detention and the prison population, including people remanded in custody, Mr. Kibblewhite said the prison population had fallen in recent years, with a dramatic decrease in the number of young persons in prison. As of June 2022, New Zealand had the sixteenth highest imprisonment rate among 38 Organization for Security and Cooperation in Europe countries, which was an improvement. However, the remand population had not dropped in the same way, and New Zealand viewed this as problematic. The courts were taking a more therapeutic approach which allowed treatment in the community, without disrupting housing and family relationships. The courts were also recognising how addiction played a role in offending, which had had a significant impact on the number of women incarcerated. There were several reasons for the non-decrease in remand prisoners: this was due in part to increased prosecutions of cases of domestic violence, where perpetrators were remanded in order to protect the victims. Other causes included the increasing length of trials. New Zealand was aware that prolonged remand times could become a human rights issue, and the Government was working to address it.
There was a zero-tolerance policy on violence within prisons, and complaints were received from prisoners themselves, the delegation said. When such a complaint was received, this was advised to the prison, investigated, or referred as appropriate. Mental health support in prison was needs-based, and was assessed at three differing levels, from mild to moderate needs to acute needs. Persons who were at risk of suicide or self-harm were covered by a specific fund from the various bodies. External specialist treatment for prisoners was subject to the same prioritisation and wait-listing as for those in the wider community. On segregation, this was a direction initially given to restrict or deny a prisoner’s opportunity to interact with other members of the prison community for a very clearly defined number of reasons. It must be justified based on facts and what legislative provision the prisoner must be segregated under. Prolonged solitary confinement was prohibited. The maximum time for solitary confinement was 15 days, as per the Mandela Rules.
With regard to COVID-19 and the impact on detention, Mr. Kibblewhite said the general approach had followed the general alert frameworks and health practices promulgated at the national level, including social distancing, hygiene practices, and restrictions on who could be interacted with. This approach was brought to places of detention, and audio-visual linkages had been put in place so that detainees could speak to lawyers and maintain family connections. A coordinated approach had been taken across the board, and there had been active processes in place for young people to provide wrap-around care and a wrap-around safe environment for all in custody. A response team had been set up to ensure that there was a balance between human rights obligations and the general health requirements.
Questions by the Rapporteurs
BAKHTIYAR TUZMUKHAMEDOV, Committee Expert and Rapporteur for the report of New Zealand, asked how often the police website detailing judgements was visited by the general public, as certain judgements were supposed to be “widely disseminated”. On the withdrawal of reservations to article 14, he noted that this remained a recurring theme for the next cycle. He noted that New Zealand was considering accession to the Convention on Enforced Disappearances, but was disappointed that there was no information given on why New Zealand was not planning to accede to the Convention on Migrant Workers, nor to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Mr. Tuzmukhamedov also queried the legal status of the Convention in the Cook Islands, Niue and Tuvalu as the explanation given earlier by the delegation left him with more questions.
With regard to training on the Istanbul Protocol, he asked for more extended and expansive answers, including on the methodology which could be developed to assess the effectiveness of training on matters related to the Convention against Torture and its object.
ILVIJA PUCE, Committee Expert and Rapporteur for the report of New Zealand, said there was concern about the issue of juvenile courts and the age of legal responsibility, and the Committee needed more information, in particular taking into account that most juveniles ending up in institutions were of Māori origins. Did the State party work to combat causes in this regard, as this brought a better and more long-term impact on children and young people. She noted the delegation had said that the number of juveniles being detained was decreasing, but that a new detention facility was being built, and inquired as to the motivation and reasoning behind this apparent contradiction. She asked for statistics on the use of pepper spray in 2022 and 2023. She noted that many jurisdictions had phased out the use of pepper spray, and the restrictions on its use in closed environments - and inquired why it was more often used against women than men. She also asked the delegation about the use of spit hoods on children, noting that this was entirely unacceptable.
On intersex children, Ms. Puce asked whether the guidelines and path lines developed by the child and inter-sex network had been implemented, and whether the State party had clear legislative provisions prohibiting unnecessary medical and surgical operations on inter-sex children before they were of the age to provide clear and informed consent? On migration issues, the Committee was concerned to hear that asylum seekers were still placed in criminal detention facilities due to illegal arrival, and required more information on this, including the length of detention, as it seemed indefinite. What measures were used to identify vulnerable people who were arriving, such as persons who had been subjected to torture, and how were they treated? What was the situation of unaccompanied minors? Could the delegation provide some information on the development of the plan on combatting trafficking in persons, and what cases had been brought to justice, as well as what was done for victims, including providing shelters and compensation?
Responses by the Delegation
ANDREW KIBBLEWHITE, Secretary for Justice and Chief Executive of the Ministry of Justice of New Zealand, said that the “demonstrated harm” that individuals had experienced in State care historically would be addressed fully, including from the perspective of compensation and what would be compensated for, how, and when. With regard to the dissemination of judgements, these were done through several websites, and this was part of established modern habit and discourse. With regard to the issue of Kyung Yup Kim, his case arose from an alleged crime and not a matter of internal security. It had been extensively considered by the courts and the Minister of Justice. He had not yet been extradited until they heard more from the Human Rights Committee. The Government had agreed to wait until the end of 2023, and there was a desire to keep this issue moving.
On migrant workers, Mr. Kibblewhite said that the Convention had not been ratified, and New Zealand was not currently considering this, as there were issues related to certain paragraphs therein. New Zealand was party to all other core international human rights instruments that covered the human rights provisions of the Convention on the Rights of Migrant Workers. New Zealand’s legislation, including the Bill of Rights and the Human Rights Act, was compliant with these treaties, and thus provided adequate protection of the rights of migrant workers and their families. Migrant workers unlawfully in New Zealand had the right to appeal expulsion and have their case reviewed by a competent authority.
On the application of the Convention in the Cook Islands and Niue, these areas were able to enter into treaties under their own right. On implementation in Tokelau, there were no reports or allegations of torture in this area. A proposed review of the Tokelau justice sector was under consideration.
There had been announcements this week regarding a multi-focused plan to tackle and prevent youth crime, working to break the cycle of offending through various means, making offenders more accountable, providing victims with entitlement to attend family group conferences, and investing in the police and prosecution services to help clear the case backlogs in the district courts. Family policing would receive further funding. A protocol would be developed to streamline the process for referring juveniles to the family group conferences. A new offence was proposed that would specifically address ram-raiding with a maximum of 10 years imprisonment. This proposed legislation would be subject to public scrutiny. Being charged in youth court allowed for police to apply for bail conditions, and for the offender to be held in the Ministry for Children custody, it did not allow for sentencing. Under the proposals, the family court could also require that a youth attend a recreational or activity programme, and that they be tasked with community service, such as cleaning graffiti. These were aimed to engage the youth with the community and set them on the path in the right way.
Non-physical weapons such as pepper spray were used as an alternative to grappling force, the delegation said. The tactical operations manual was regularly updated, and prioritised de-escalation and communication techniques among prison staff in order to avoid the use of force. Reviews ensured that the level of force was appropriate, encouraging the continuing education of staff in that context. With regard to the use of spit hoods, and its use in juvenile contexts, this was always a last resort. There were legitimate concerns regarding spitting and biting, such as the transmission of diseases, leaving officers sometimes with no other recourse. In that context, use of spit hoods in limited circumstances was regrettably sometimes necessary, however, the figures were very low - in 2021 they were only used on 20 persons under the age of 18. These situations were also reviewed to ensure whether other options could have been used; 108 cases of pepper spray used on juveniles were recorded in 2022.
On support for intersex persons, the Government had allocated funds to research into rights-based care for intersex people, including children, ensuring they would be treated with dignity and respect in the healthcare system, and would not be pathologized, Mr. Kibblewhite said. Resources were also being developed to provide support to intersex children in their family context, and to cover medical interventions. Compensation was available for those dealing with the consequences of intersex operations. The Government was not considering provisions on unnecessary procedures on intersex children, as what was necessary and appropriate could change over time.
Since 2020, no asylum seekers had been detained in places of criminal detention, and a new centre for their housing had been built. Detention was limited to certain specific circumstances, and these were reviewed. Since 2019, the Government had made key improvements to its processes around the restrictions of liberty for asylum seekers, keeping them in line with the guidelines of the United Nations High Commissioner for Refugees. It was also introducing a new community management approach allowing for electronic monitoring as an alternative to detention, but only in certain contexts such as a risk to public security. On trafficking in persons, the Government had established the Trafficking In Persons Investigation Unit in March 2023 aiming to respond to issues of trafficking in persons in a responsible way, ensuring a better and cross-sectoral approach, identifying and responding to incidents.
CLAUDE HELLER, Committee Chairperson, expressed gratitude to the delegation for its willingness to address all topics raised by the Rapporteurs and Committee members, which was proof of New Zealand’s commitment to the Convention. The provision of very specific answers to the questions was further proof of this. In the next few days, the Committee would be drafting the recommendations issuing from the discussion and the observations made by civil society organizations. These would include four particular items that could be attained in the short term by New Zealand. The dialogue should continue, and be fluid. The concluding recommendations and suggestions should ultimately be of use to the State party: this was the whole purpose of the endeavour - they were not to be analysed for substance, but used to correct the operation of institutions.
ANDREW KIBBLEWHITE, Secretary for Justice and Chief Executive of the Ministry of Justice of New Zealand, thanked the Committee for the constructive dialogue, and the Rapporteurs for their additional focus on issues and insights made in the conversation. The productive atmosphere and the opportunity to reflect on commitments were of great value, and the delegation would go back to New Zealand and continue to strive against all forms of torture and ill treatment. New Zealand looked forward to receiving the concluding observations and determining how it could implement them domestically.
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