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Human Rights Committee
2695th & 2696th Meetings (AM & PM)
New Zealand Says ‘Our Commitment to Human Rights and Our Record’ Clear,
as Human Rights Committee Takes Up Country’s Fifth Periodic Report
Delegation Describes Recent Steps to Further Strengthen Protections;
Experts’ Concerns: Use of Tasers, Disproportionate Number of Maori in Prison
While affirming his country’s “unique but robust constitutional structure”, which afforded opportunities for engagement with human rights protections across all Government institutions and among all citizens, the Minister of Justice of New Zealand, addressing a panel of United Nations rights experts today, nevertheless acknowledged several issues of ongoing concern, including the use of “tasers”, the private management of prisons and the disproportionate number of Maori in the country’s prison system.
“We recognize that our constitutional tradition differs from much of the world -- but believe that our commitment to human rights, and our record in that regard, is nonetheless clear,” Simon Power declared, as he introduced to the Human Rights Committee New Zealand’s fifth periodic report on compliance with the International Covenant on Civil and Political Rights. The two main pieces of law in New Zealand that specifically promoted and protected those rights were the 1993 Human Rights Act and the 1990 New Zealand Bill of Rights Act, he said.
“Integral to our national identity is the relationship between the Government and the Maori, the indigenous people of New Zealand,” he continued, and noted that, while the Maori made up only about 15 per cent of the total population, they were a growing and vibrant part of society. The 1840 Waitangi Treaty gave effect to that relationship, which continued to evolve.
New Zealand’s constitutional arrangements included specific human rights protections, he said, and a number of other instruments and practices also safeguarded fundamental rights, which included reference to the principles provided in the Waitangi Treaty. Further, he said that, within the Government, specialized bodies such as the Human Rights Commission, the Independent Police Conduct Authority, and others, monitored compliance with national and international human rights law. The New Zealand judiciary enjoyed complete independence and was strongly committed to the promotion of national and international human rights.
During the current reporting period, the Government had taken a number of measures to further strengthen its implementation of the Covenant, including through enacting new legislation that governed the treatment of prisoners; responsibility for children; provision for civil unions and wider recognition of personal relationships; and expanded powers and procedures for non-discrimination law. In the past two years, human rights protections had been further strengthened in substantial reviews of legislation governing police and immigration and asylum law.
After reviewing such progress, he acknowledged, however, that there were a number of issues that had been the subject of debate in New Zealand, including that, in spite of Government initiatives over the years, Maori continued to be disproportionately represented in criminal justice statistics, both as offenders and victims of crime. The country had identified four priority areas to reduce crime and recidivism rates, with particular emphasis on the ways in which that affected the Maori. Those priority areas included antenatal, maternity and early parenting support; programmes to address child behavioural problems; reducing harm caused by alcohol; and alternative approached to low-level offences.
Highlighting other matters of concern during his delegation’s response to the Committee’s written questions, he said police did not routinely carry firearms, making new Zealand one of only six countries in the Organisation for Economic Cooperation and Development (OECD) with unarmed officers. Tasers had been introduced in December 2008 following a limited trial period.
Strict operational guidelines on their use were in place. He further stressed that tasers would not be routinely carried and could only be used by officers trained in their use and approved to carry them. Since their reintroduction, there had been a 50 per cent decrease in the number of actual discharges compared to the trial period.
He went on to stress that, while prisons might be privately managed, prisoners would remain in the legal custody of the Chief Executive of the Department of Corrections, and private prisons were required to comply with all relevant international standards on the treatment and welfare of prisoners. That included domestic legislation, such as the Human rights Act and the Bill of Rights Act. A monitoring regime was also in place and the Ombudsman had independent oversight of all prisons.
When the experts took the floor, Zonke Zanele Majodina from South Africa praised New Zealand’s long history of working towards broader acceptance of global human rights norms. At the same time, she wanted more information on the ways the Government was ensuring that the Bill of Rights Act worked in harmony with domestic legislation. She also asked: What was the status of the Waitangi Treaty in light of the Bill of Rights Act? She also wondered if domestic law and the Bill of Rights Act had been brought into conformity with the Covenant.
On other matters, she asked for more information on plans under way to increase awareness of human rights norms among members of parliament. She also wanted more information on initiatives to improve care for mentally-ill persons in prisons, especially women and Maori. She also noted that the Human Rights Council’s Universal Periodic Review last summer had noted that institutional bias might be part of the reason Maori made up such a large part of the prison population, as well as in how poorly the Maori were treated in prisons. Was the Government moving to address those issues?
Rajsoomer Lallah, expert from Mauritius, was among several Committee members concerned about the rules governing the country’s application of its obligations under Security Council resolution 1267 (1999) on Al-Qaida and Taliban sanctions. That resolution, much debated in the international sphere, created a Sanctions Committee which maintains a list of all individuals and entities deemed by States to be associated with those terrorist networks. Mr. Lallah was troubled that, while New Zealand, like all States, had listing obligations under that text, its own national laws regarding designation might be problematic. He asked if the Government was examining its anti-terrorism legislation to ensure that all facets of those laws respected human rights?
The Human Rights Committee will reconvene tomorrow at 10 a.m. to continue and conclude its consideration of New Zealand’s fifth periodic report.
During its morning session, the Committee had before it a draft revised guidelines for State reports under the International Covenant on Civil and Political Rights (document CCPR/C/2009/1/CRP.2), which outlines a revised reporting system under the International Covenant on Civil and Political Rights that would replace all previous guidelines issued by the Human Rights Committee.
The draft revised guidelines are to be applied in conjunction with the harmonized guidelines under the international human rights treaties, by which States reports are to consist of two parts: a common core document and treaty-specific documents. The common core document should contain general information about the reporting State, the general framework for the protection and promotion of human rights and information on non-discrimination, equality and effective remedies. The Covenant-specific document should focus on specific issues relating to the Covenant’s implementation and avoid any information in the core document.
The guidelines elaborate on periodic reporting obligations; provide general guidance and requirements for reporting under the Covenant, including the treaty-specific report; and guidance and requirements for reporting under specific articles of the Covenant. Among other things, the guidelines lay out two paths for States parities reporting after their initial report: handing in a “focused report based on replies to list of issues”, and handing in a full report.
In the afternoon, the Committee took up the fifth periodic report on New Zealand’s compliance with the International Covenant on Civil and Political Rights (document CCPR/C/NZL/5). The report, which covers the period from January 1997 to December 2007, says the Covenant rights remained central to the country’s law, policy and society, and describes significant developments in the way those rights were given effect during that period.
Among other things, the report notes that the Supreme Court of New Zealand was established by the Supreme Court Act of 2003 and had delivered key judgements on Covenant rights. Before that, New Zealand’s highest court of appeal was the Judicial Committee of the Privy Council.
Other significant enactments during the reporting period include the Human Rights Amendment Act 2001, which removed the exemptions for certain Government activities from the Human Rights Act 1993; the Civil Union Act 2004, which allowed two people of different or the same sex to formalize their relationship by entering into a civil union; the Relationship (Statutory References) Act 2005, which gave statutory recognition in a wide range of acts to civil union and de facto couples; the Care of Children Act 2004, which repealed and replaced the Guardianship Act 1968; and the Armed Forces Law Reform Bill 2007 (enacted as four separate acts), which improved the compliance of the military justice system with the New Zealand Bill of Rights Act 1990 and the Covenant.
The report enumerates other significant developments, including the development of the New Zealand Action Plan for Human Rights, which sets human rights outcomes to which New Zealand should aspire and lists approximately 180 “priorities for action” for doing so, and the five-year Action Plan for New Zealand Women that, starting in 2004, set out an integrated approach to improving the circumstances of women in New Zealand. Further, New Zealand withdrew its remaining reservations to the Convention on the Elimination of all forms of Discrimination against Women (related to paid parental leave and service in the Armed Forces) and initiated steps to remove two reservations to the Convention on the Rights of the Child (related to age-mixing in detention and immigration status in accessing publicly funded services) and one to the Covenant (also related to age-mixing).
Also noted in the report is New Zealand’s ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for national preventive mechanisms to access places of detention. A statement on religious diversity was also developed as a community-based initiative through the New Zealand Diversity Action Programme. Further, a Families Commission was created in July 2004 to actively speak out for better policies, services and support for all New Zealand families.
Committee’s Working Methods
Due to the absence of Chair Yuji Iwasawa, expert from Japan, the Committee meeting was chaired by NIGEL RODLEY, expert of United Kingdom, who informed the Committee that Mr. Iwasawa’s mother had died over the weekend and he had returned to Japan. He expressed the Committee’s deep sympathy and condolences.
Introducing the draft guidelines, HELLEN KELLER, expert from Switzerland and Rapporteur, noted that the Committee had decided in October to adopt a new reporting procedure. Called “focused report based on replies to list of issues”, under which the Committee would prepare and adopt lists of issues to be transmitted to States parties prior the submission of a report, provided it was at least their second periodic report. That procedure would not be retroactive to reports already submitted, but not yet considered.
That reply would also substitute for the report called for under article 40, she said, suggesting that was, in light of the Committee’s meeting on translation problems with the Secretariat on Friday, not just technical, but substantive, since the translation service would thus be obliged to translate that document. She further noted that the new procedure would be optional -- the Committee could decide to have a full report, or the State party could inform the Committee that it wished to hand in a full report.
She went on to say that the Committee had decided in October against stipulating page limits for the normal report and the answers. But, after Friday’s discussion, that proposal was being rethought. Underscoring how helpful it was for the officials in the States who had to prepare a full report if the Committee provided details on what its members would like to receive, she asked the Committee if there should be a limited number of pages?
In light of the fact that the list of questions posed by the Committee already amounted to 15 pages, RAJSOOMER LALLAH, expert from Mauritius, asked if some of the questions could be transferred to the core document.
JOSÉ LUIS PEREZ SANCHEZ-CERRO, expert from Peru, said that, given the fact that there was no chance of securing more funding for translation services, the Committee should limit the number of pages. That would have an additional benefit, he pointed out, of reducing any sense of intimidation experienced by the State delegations required to produce the report.
Saying that the Committee might be putting the cart before the horse, MICHAEL O'FLAHERTY, expert from Ireland, suggested that perhaps they should deal with the content of the reports, before deciding about how many pages they were going to be.
ABDELFATTAH AMOR, expert from Tunisia, said the Committee must try, as much as possible, to simplify the way it carried out its work. Further, the Committee could not request that a State party provide as much information as possible on compliance with the Covenant, and then put a page limit on that submission. At the same time, he believed it was possible to request a shorter document and then expand the Committee’s oral discussion of the report. What the Committee would lose in the number of pages, it would gain in richer dialogue. He also said that all reporting States must be treated equally.
IULIA ANTOANELLA MOTOC, expert from Romania, said the reports must be based on whatever information a State party provided. Requiring a certain number of pages was not going to simplify anything. She also said that, if a State party did not stick to the information that was supposed to be provided, the Chairperson should guide the discussion.
CHRISTINE CHANET, expert from France, said the word “detail” should vanish; the Committee could not ask a State Party for details and statistics on one hand and ask for a page limit on the other. It was up to the Chair to guide the discussion and keep it on track.
KRISTER THELIN, expert from Sweden, said that, while he agreed that all State should be treated equally, all States were not equal in their performance under the Covenant. At the same time, that did not mean that States parties should not have a limit on the report. His belief was that when there was a limit, the author focused more intently on the information provided. He favoured the shortest number of pages possible.
A suggestion was made to incorporate the language from paragraph 19 of the compilation (document HR/GEN/2/Rev. 5) -- which, among other things, says that “if possible” common core documents should not exceed 60 to 80 pages, initial treaty documents should not exceed 60 pages, and subsequent documents should be limited to 40 pages -- into the Committee’s reporting guidelines. Mr. RODLEY, however, said there wasn’t a consensus on that matter.
The Committee then began a detailed read-through of the draft guidance for States parties reporting on compliance with the specific articles of the Covenant. The experts shared their views, suggesting drafting proposals and made technical changes to the language. Wrapping up that part of the Committee’s work, Mr. RODLEY said the experts had worked their way through two thirds of the article and that today’s “useful and awareness raising discussion”, would be helpful in moving the text forward.
New Zealand’s Report
Presenting his country’s fifth periodic report, SIMON POWER, Minister of Justice of New Zealand, said his country, a small, diverse democracy in the Asia Pacific, was home to 4 million people, principally of Maori, European, Asian and Pacific island descent, living side by side in harmony and tolerance. “Over the past 170 years, we have welcomed successive generations of migrants and refugees,” he continued, adding that integral to the national identity was the relationship between the Government and the Maori.
The Maori indigenous people made up about 15 per cent of the population and were a vibrant and growing part of New Zealand’s society. The Treaty of Waitangi concluded in 1840 gave effect to that relationship, which continued to evolve. He said the Government welcomed the Committee’s scrutiny and looked forward to the opportunity that the reporting process provided, both to share positive experiences and to draw on the expertise and perspective that the Committee could bring to the challenges New Zealand faced. He added that the report had been prepared with wide consultation with civil society. It had been published online, and the Government would, of course, publicize the Committee’s concluding observations and recommendations.
While New Zealand had always encouraged other countries to ratify international human rights accords and played a leading role in developing new such instruments, at the national level it had, likewise, long given effect to human rights through a broad range of governmental and non-governmental institutions. “ New Zealand has a comparatively unique, yet enduring constitutional structure,” he said, noting that the country’s constitutional arrangements included specific human rights protections, such as the New Zealand Bill of Rights Act, which he would discuss in detail during his responses to the Committee’s written questions.
Continuing, he said there were a number of other instruments and practices that also safeguarded fundamental rights, which included reference to the principles provided in the Waitangi Treaty. Further, within the Government, specialized bodies, such as the Human Rights Commission, the Independent Police Conduct Authority, and others, monitored compliance with national and international human rights law. The New Zealand judiciary enjoyed complete independence and was strongly committed to the promotion of national and international human rights.
“We recognize that our constitutional tradition differs from much of the world -- but believe that our commitment to human rights, and our record in that regard, is nonetheless clear,” he declared, and added that New Zealand was justly proud of its avenues of public participation provided by transparency, strong traditions of accessible Government institutions and a robust civil society.
He said that, during the current reporting period, the Government had taken a number of measures to further strengthen its implementation of the Covenant, including through enacting new legislation that governed the treatment of prisoners; responsibility for children; provision for civil unions and wider recognition of personal relationships; and expanded powers and procedures for non-discrimination law. In the past two years, human rights protections had been further strengthened in substantial reviews of legislation governing police and immigration and asylum law.
New Zealand had also ratified key human rights treaties, including the Convention on the Rights of Persons with Disabilities and the Optional Protocol on the Convention against Torture. It was also proceeding towards the ratification of the Optional Protocol to the Convention on the Rights of the Child, on the sale of children, child prostitution and child pornography. He also mentioned Mana ki Tangata, the New Zealand Action Plan for Human Rights, developed by the national Human Rights Commission. That Plan relied on an assessment by the Commission of the current status of human rights, based on an analysis of law, policy, research, and consultation with the public, non-governmental organizations and Government agencies.
He said the Commission’s mid-term review had revealed that there had been substantial initiatives in almost all the Plan’s identified priorities. Those had included, among others, the recognition of New Zealand Sign Language as an official language of the country, the introduction of paid parental leave and measures to reduce poverty, including by raising the minimum wage. Moreover, the independent prison complaints and monitoring procedures had been expanded, not only through the recent reform of prison law, but also through further reinforcement of the longstanding role of the Office of the Ombudsman, as a specialized independent complaints mechanism for prisoners.
After reviewing such progress, he acknowledged, however, that there were a number of issues that had been the subject of debate in New Zealand, and which the Committee had also raised in its list of issues. Those issues, such as the use of “tasers”, the private management of prisons and the country’s amendments to its anti-terrorism legislation, would be discussed later, but one issue he would discuss was the corporal punishment of children.
In that regard, he said New Zealand had recently repealed a defence that existed under the crimes act to permit the use of reasonable force against a child for the purpose of parental protection. Since then, the repeal of that defence had been the subject of an official, but non-binding, citizens initiated referendum, in which a majority had voted for the reinstatement of the defence. Notwithstanding that result, in the present circumstances, the Government did not intend to reinstate the defence.
Another area of concern was that, in spite of Government initiatives over a number of years, Maori continued to be disproportionately represented in criminal justice statistics, both as offenders and victims of crime. He said the country had identified four priority areas to reduce offending and recidivism, with particular emphasis on the ways in which that affected the Maori. Those priority areas included, antenatal, maternity and early parenting support; programmes to address child behavioural problems; reducing harm caused by alcohol; and alternative approaches to low-level offences. He added that the Department of Corrections had also developed a specialized strategic plan for Maori offenders, focused primarily on strengthening awareness of Maori cultural concepts and values.
Turing to “shadow reports”, he said New Zealand was an active supporter of the work of human rights organizations. Indeed, the Government was pleased to see the reports of the New Zealand Human Rights Commission and of national and international non-governmental organizations. The Government maintained a strong dialogue with that Commission and with civil society groups. Wrapping up, he reiterated New Zealand’s continuing commitment to its international human rights obligations.
“Our unique, but robust, constitutional structure has afforded opportunities for engagement with human rights protections, not only across all of the institutions of Government, but in the wider community as well,” he said, adding however, that New Zealand also recognized that there would also be challenges, and he looked forward to engaging with the Committee to continue to better protect and promote civil and political rights.
Headed by Mr. Power, the delegation also included Ambassador Jim McLay, Permanent Representative to the United Nations; Juliet Hay, Counsellor, Permanent Mission to the United Nations; Erin Johnson, Private Secretary of the Minister of Justice; Ben Keith, Crown Counsel, Crown Law Office; Stuart Beresford, Policy Manager, Ministry of Justice; Paul Monk, Southern Regional Manager, Prison Services, Department of Corrections; Stephanie Coutts, Immigration Policy, Department of Labour; Nicola Hill, First Secretary, Permanent Mission to the United Nations; and Tara Morton, Second Secretary, Permanent Mission to the United Nations.
Addressing his country’s responses to written questions 1 to 16, Mr. POWER said, specifically with respect to questions 1 to 3 on New Zealand’s constitutional arrangements, successive Governments had worked steadily to create and maintain a human rights environment that enabled its people to reach their individual and collective potential, regardless of race, gender, disability or religion.
He said the Bill of Rights Act of 1990 gave effect to human rights protections at three stages of Government action. First, all policy and legislative proposals must be considered to ensure consistency with the Act and its international human rights obligations. Second, all legalisation was reviewed formally by the Attorney General and informally by parliamentarians, governmental and non-governmental rights advocates and members of the public through parliamentary procedures. Third, the exercise of governmental powers was subject to scrutiny under the Act and actions inconsistent with human rights protections could be overturned through the courts, the Human Rights Review Tribunal and other review bodies.
He said that, since 1990, the Attorney General had reported 49 bills -- 5 within the last year -- that appeared inconsistent with the Act to the House of Representatives. It was Parliaments’ role to determine whether legislation limited a particular right or freedom and whether that limit was justified. Where certain Covenant rights had not been directly included in the Bill of Rights Act, they were given effect by other legislation and common law. One issue raised in the shadow reports was the absence of a formal mechanism for increasing awareness of the Covenant. The Bill of rights Act provided for the provision of advice to parliamentarians on the consistency with rights affirmed in that Act.
Continuing, he said that, in order to guarantee the judiciary’s independence, the Government did not provide training, which was instead handled by the Institute of Professional Legal Services. The judiciary had frequent recourse to the Covenant, which had been cited in more than 150 decisions of the superior courts, and to the Bill of Rights Act, which had been referred to in 2,500 decisions in the last decade.
Acknowledging that the Bill of Rights did not represent supreme law or contain a formal remedies clause, he stressed that, for victims of violations of the rights enshrined in the Covenant, the courts had established a number of judicial remedies, including monetary compensation, stays of prosecution and exclusion of evidence. The courts had not yet determined if they could issue a formal declaration that legislation was inconsistent with the rights and freedoms contained in the Bill of Rights, but the Supreme Court had affirmed the practice of informally indicating such inconsistencies. He cited as one example of this process the 2007 Hansen case.
Turning to the EB v New Zealandcase, which was raised in question 4, he said the Government did not agree with Committee’s assessment that undue delay had occurred in that case. Those delays reflected the case’s exceptional complexity and sensitivity, and the paramount importance accorded by the State’s legislation to the safety and well-being of children. Nevertheless, the Government acknowledged that the efficiency of the Family Court could be improved, and had taken concrete steps to accelerate Family Court procedures, including by promoting less adversarial hearings. A case-flow analysis was being done and the Court’s Rules Committee was amending its rules to allow judges to make decisions earlier in proceedings where counsel failed to take agreed steps or failed to appear.
Taking up the Committee’s concerns about the compatibility of the Prisoners’ and Victims’ Claims Act of 2005, he said the Act did not preclude compensation where appropriate. Any deduction of amounts from the compensation for payment to victims was still consistent with the right to an effective remedy and any delay in payment was limited only to what was reasonably necessary for a victim to seek civil redress for damages suffered due to a prisoner’s offence.
Agencies had been directed to consider the New Zealand Action Plan on Human Rights, which had been developed by the country’s Human Rights Commission in 2005, as part of normal business, he said. The recent review of progress under the Action Plan had largely been positive. Achievements included action to reduce poverty, such as increasing the minimum wage; actions to reduce violence against children and young people; introduction of parental leave; and recognition of the Convention on the Rights of Persons with Disabilities, among others.
He went on to say that New Zealand’s counter-terrorism measures had been strengthened during the reporting period to meet the country’s international counter-terrorism obligations and to protect its people. The purpose of the Terrorism Suppression Amendment Act 2007 was to ensure compliance under obligations elaborated by United Nations Security Council resolutions 1267 (1999) and 1373 (2001). Under that Amendment Act, which contained a framework for New Zealand to make its own terrorist designations, individuals and entities listed as terrorists by the United Nations were automatically designated as terrorist entities under New Zealand’s law. Designations were made by the Prime Minister against statutory criteria and were open to judicial review. Four groups not found on the United Nations list were designated terrorist entities: Al-Shabaab in Somalia, Basque Homeland and Liberty (ETA) in Spain, Kurdistan Workers’ Party (PKK) in Turkey and the Revolutionary Armed Forces (FARC) in Colombia.
He underscored that, although protecting sensitive information while maintaining fair procedures could be difficult, New Zealand’s legislation struck a fair balance, particularly through its judicial oversight mechanism. The Terrorism Suppression Act also provided for a three-year review by the Prime Minister of designations of groups not on the United Nations list. The Prime Minister was then required to report renewals to Parliament’s Intelligence and Security Committee. Those renewals were also subject to judicial review.
He said it was inappropriate to comment on the Committee’s concerns about “Operation Eight”, which were contained in question 8, since the written response summarized the events and resulting proceedings, which were ongoing. The delegation acknowledged, however, that the concerns contained in the shadow reports would be considered through the range of court and other processes currently under way. Further, the systems for addressing complaints were working as intended and the police had shown a strong dedication to mitigating any negative or disproportionate effects felt by the Maori.
Turning to non-discrimination issues, he noted the enactment of the 2004 Foreshore and Seabed Act, which was criticized by other United Nations committees. It had also been the subject of much debate in New Zealand, and the Government was undertaking a review of the legislation. An announcement that the Act would most likely be repealed had already been made, although no decisions had been made about its replacement.
On protections of immigrants and asylum seekers, he highlighted the work of the Office of Ethnic Affairs, which had developed and disseminated the “Ethnic Perspectives in Public Policy” tool to increase Government responsiveness to ethnic issues. The Language Line also provided a free telephone interpreting service. Various measures to support the settlement and integration of newcomers into New Zealand society had been implemented, including the Settlement Strategy and the accompanying Plan of Action.
Responding to questions on gender equality, violence against women and political rights, he said women continued to be underrepresented at senior levels in both the public and private sectors. No targets to improve that representation currently existed, although increasing such representation continued to be a priority for the Government. Moreover, there had been steady progress in that area, with the positions of Governor General, Chief Justice, Speaker of the House, Prime Minister and Leader of the Opposition having been held by women in recent years. Also, 35 per cent of the chairs of the board of State-owned companies were women, while women accounted for 42.3 per cent of statutory boards. After the last election, 41 of 122 members of Parliament were women. Currently, 6 of 19 Cabinet ministers were women, as were 2 ministers outside the Cabinet.
A task force for action on sexual violence had been established in 2007, he said, noting that it comprised 10 Government agencies as well as representatives from community organizations. The task force had provided a final report with recommendations on future action, which the Government was actively considering.
Underlining significant developments on the right to life and the prohibition of cruel, inhuman or degrading treatment of prisoners, he highlighted particularly New Zealand’s ratification of the Optional Protocol to the Convention on Torture, the enactment of the 2004 Corrections Act and the 2009 Immigration Act. Under section 16 of the 1992 Mental Health Act, all persons compulsorily detained on mental health grounds had prompt access to judicial review of their detention.
He further stressed that the Government operated inspection regimes consistent with the United Nations Principles for the Protection of Persons with Mental Illnesses and Improvement of Mental Care. That included the designation of the Ombudsmen under the National Preventative Mechanism. In the last 12 months, 89 inspections had been conducted. Further, district health boards and prison staff worked to ensure all prisoners with mental illness received appropriate treatment. Yet the Government accepted that more work remained to be done.
Turning to the specific problem of high levels of incarceration among the Maori, he expressed the Government’s concern. As of February 2010, Maori made up 51 per cent of New Zealand’s total prison population, despite accounting for only 15 per cent of the general population. Even more strikingly, Maori women accounted for 60 per cent of the female prison population. Clearly, the overrepresentation of Maori was not simply a criminal justice problem, and addressing it involved a range of sectors, including health, education, parenting support, housing, recreation and economic, social and community development. The emphasis would be on crime prevention, rather than its effects. Among others things, the focus would be on improving services for those at risk of becoming offenders, or victims, and their families.
He stressed that, while prisons might be privately managed, prisoners would remain in the legal custody of the Chief Executive of the Department of Corrections, and private prisons were required to comply with all relevant international standards on the treatment and welfare of prisoners. That included domestic legislation, such as the Human rights Act and the Bill of Rights Act. A monitoring regime was also in place and the Ombudsman had independent oversight of all prisons.
Addressing the use of tasers, he noted that the police did not routinely carry firearms, making it one of only six countries in the Organisation for Economic Cooperation and Development (OECD) with unarmed police officers. Tasers had been introduced in December 2008 following a limited trial period. Strict operational guidelines on their use were in place. He further stressed that tasers would not be routinely carried and could only be used by officers trained in their use and approved to carry them. Since their reintroduction, there had been a 50 per cent decrease in the number of actual discharges, compared to the trial period.
Experts’ Comments and Questions
The first expert to take the floor, ZONKE ZANELE MAJODINA, expert from South Africa, praised New Zealand’s long history of working towards broader acceptance of global human rights norms. At the same time, she wanted more information on the ways the Government was ensuring that the Bill of Rights Act worked in harmony with domestic legislation.
She asked: How many bills had been enacted since 1999, despite expressed concern by the Attorney General that such legislation was out of step with the Act? What was the status of the Waitangi Treaty in light of the Bill of Rights Act? She also wondered if domestic law and the Bill of Rights Act had been brought into conformity with the Covenant. On other matters, she asked for more information on plans under way to increase awareness of human rights norms among members of parliament. She also wanted more information on initiatives to improve care for mentally ill persons in prisons, especially women and Maori. She also noted that the Human Rights Council’s Universal Periodic Review last summer had noted that institutional bias might be part of the reason Maori made up such a large part of the prison population, as well as in how poorly the Maori were treated in prisons. Was the Government moving to address those issues?
Ms. KELLER, expert from Switzerland, asked if New Zealand would consider amending its Human Rights Act to allow the national Human Right Commission to oversee immigration laws, policies and practices? Was The Government considering a review of its policies regarding health care of mentally-ill persons in State care? Did New Zealand intend to accept the Declaration on the Rights of Indigenous Peoples? She also wondered what actions the Government had taken to protect women, particularly those belonging to minorities, from discrimination.
She also asked the delegation if the Government had carried out any study to determine the consequences of the use of tasers? If taser laws were not repealed, was the Government undertaking any measures to ensure transparency in how they were used? She also asked for more information on the EB v New Zealand case, which had been brought before the Committee in 2007. Was the Government working to implement any of the Committee’s recommendations?
The next speaker, Mr. O'FLAHERTY, expert from Ireland, praised the delegation’s presentation, saying that it was often self-critical, which was very helpful when holding a dialogue. Among several questions related to national mechanism, he asked: What was the level of Government ownership of the national Human Rights Plan of Action? Was it the Government’s Plan or did it rest with they national Human Rights Commission? Was there a possibility for it to become a more Government-owned process? He also asked what was being done to promote women to higher positions in the Government and the private sector? Echoing Ms. Keller, he asked for more information on the EB v New Zealand case.
Mr. LALLAH, expert from Mauritius, noted that the Government had taken some steps to reconcile New Zealand’s anti-terrorism laws with the tenets of the Covenant. While the Committee could now receive some assurances on application of such changes to the laws, he was nonetheless concerned that police and other law enforcement officials were not adhering to the changes. He also asked specific questions about the issuance of warrants -- in both trial and pretrial processes -- and terms of detention for terrorism suspects.
He was also concerned about the rules governing the country’s application of its obligations under Security Council resolution 1267 (1999) on Al-Qaida and Taliban sanctions. He was troubled that, while New Zealand had listing obligations under that text, its own national laws regarding designation might be problematic. Finally, he was very concerned about the privatization of New Zealand’s prisons.
Mr. THELIN, expert from Sweden, also talked about New Zealand’s anti-terrorism measures and wondered if all necessary legal safeguards were in place to make sure that even those designated by the Security Council as terrorist agents/networks had their rights protected.
On matters related to the Maori indigenous population, Ms. MOTOC, expert from Romania, said that while New Zealand had made significant steps with regard to protecting and promoting their rights, she wondered about the treatment of Maori women, especially those in prison. She also requested more information about laws governing indigenous land and water rights. She acknowledged that the Government had launched a consultation process with Maori groups on a river management accord, but it was not enough to just talk to them. Their views needed to be taken seriously and they must inform the process.
CHRISTINE CHANET, expert from France, asked if New Zealand was considering lifting its reservations to specific Covenant articles? She echoed the concerns of another expert about the ongoing use of tasers, especially because it was impossible to know the effects of using them on people with epilepsy, for example.
The last expert to speak during this round, Mr. AMOR, expert from Tunisia, also expressed concern about New Zealand’s anti-terrorism laws and the ways the Government was implementing its obligations under Security Council resolution 1267 (1999). He also expressed concern about the exercise of religious freedom in the country. He asked if any member of the delegation was Maori.
Responding to the expert panel’s questions, Mr. POWER said he would hold over until tomorrow’s meeting his delegation’s responses on matters related to terrorism and to gender targets. He assured Mr. Amor that one delegation member self-identified as Maori. With respect to the sunset clauses in the Prisoners’ and Victims’ Claim Act, he said the Cabinet was actively considering the matter.
Responding to Mr. O’Flaherty, he noted that a child and family protection bill was currently being debated by Parliament. It had a “category 3” ranking, meaning that it would be passed this year, if possible, with ratification coming immediately.
On the questions related to entrenching the Bill of Rights, he said that issue had been thoroughly debated in both a political and academic context. Such an entrenching -- which, he indicated, would elevate the Bill of Rights in New Zealand law -- would entail a fundamental shift, which raised several concerns. He further pointed out that, while the courts could not strike down legislation, they wielded much power in reviewing legislation and in protecting rights.
Turning to the issue of compensation, he said the Government’s position was advanced. It was committed to availability of a remedy to the breach of rights, but compensation was not available for the violation of every right.
To questions regarding the Foreshore and Seabed Act of 2004, he noted that it allowed groups the right to enter into negotiation with the Crown. But, as Committee members had pointed out, many Maori and non-Maori criticized the Act. That included the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. The Government was currently working with the Maori Party on the matter, which went beyond mere consultation. He emphasized the constructive and real nature of the review between the two lead parties, as indicated in the review’s terms of reference. It had been announced on 2 November 2009, that the Act would likely be repealed. Members could expect an announcement to be made on its replacement shortly.
On questions regarding the overrepresentation of women -- particularly Maori women -- in prison, he pointed out that, of the more than 8,000 people incarcerated in New Zealand, 485 were women and 289 identified as Maori women. For its part, the Government had not been able to ascertain that there was any substitution trend.
He went on to say that New Zealand did not record any sentences related to racially motivated crime. The police did monitor such crimes through the Crime and Safety Survey, which was undertaken on a relatively regular basis. Offences that were racially related were prosecuted through general laws and their racial dimension was addressed as an aggravating factor only in the sentencing phase.
On the issue of tasers, he underscored that the police conducted a literature review in its efforts to elaborate operating rules and procedures during the trial phase. That led to an international best-practices approach. Among other things, the current approach contained various safeguards to ensure tasers were not used inappropriately. Indeed, they were to be issued only to officers who underwent rigorous training. While an officer was on duty, the tasers were kept in a locked metal box bolted to floor of the officer’s vehicle and could only be removed after an assessment had been made that the relevant situation unfolding included the threat of an assault. Tasers could not be fired at a person’s head or genitalia, and could not be used when policing public protests or against women suspected of being, or known to be, pregnant. The police were responsible for the aftercare of people who had been subjected to a taser, all of whom were also examined by medical personnel. The only reported injury from a taser’s use was a wound. The trial phase on the use of tasers had identified specific vulnerabilities among Maori and Pacific islanders, as well as persons with mental health difficulties, and the Government was working with all of those parties on the use of tasers.
Continuing, he underlined the Government’s concern about the overrepresentation of Maori in the population of criminal offenders. Work was being done among a diverse number of stakeholders to address the drivers of crime. The long-run aim of that work was to address the root causes for that overrepresentation. The Ministry of Justice would specifically be dealing with issues around alcohol and its effect on offending.
Work was ongoing on the issue of the Declaration of the Rights of Indigenous Peoples, and its possible support for the Declaration, he said. He noted that the rights recognized in that accord had been supported in New Zealand for years.
* *** *For information media • not an official record