8 April 2014 A United Nations human rights panel has voiced concerns about issues related to the deprivation of liberty in New Zealand, including the “disproportionate incarceration rates” of the Māori population, despite legal safeguards against arbitrary detention.
Speaking in Auckland yesterday at the end of their first official visit to the country, members of the UN Working Group on Arbitrary Detention noted that, overall, legislation and policy concerning deprivation of liberty in New Zealand is well-developed and generally consistent with international human rights law and standards.
At the same time, they urged the authorities to address a number of concerns.
“If a prisoner has fully served the sentence imposed at the time of conviction, equivalent detention cannot be imposed under the label of civil preventive detention,” said expert Mads Andenas, who currently heads the Working Group. “The substantive grounds for detention must be defined with sufficient precision to avoid overly broad or arbitrary application.”
He stressed that the over-representation of Māori also poses “a significant challenge,” noting that the members of indigenous group make up for more than 50 per cent of the prison population while they comprise some 15 per cent of the country’s population.
The group urged the authorities to address the disproportionate negative impacts on Māori of criminal justice legislation extending sentences or reducing probation or parole, while recommending a review of the degree of inconsistencies and systemic bias against Māori at all the different levels of the criminal justice system.
“The authorities should continue searching for creative and integrated solutions to the root causes which lead to disproportionate incarceration rates of the Māori population in New Zealand,” he said.
During the visit, the group paid particular attention to the situation of refugees, asylum-seekers and migrants in an irregular situation. In 2012, the Government accepted 690 refugees from third countries for resettlement and made efforts to facilitate their integration in the country.
The experts noted that New Zealand is using the prison system and police stations to detain irregular migrants and asylum-seekers, although the country does not have a mandatory detention policy for asylum-seekers, refugees or migrants in an irregular situation.
“Detention of asylum-seekers, refugees and migrants in an irregular situation should normally be avoided and be a measure of last resort,” said Roberto Garretón, the other member of the group’s visiting delegation.
“Alternatives to detention should always be given preference. Humane and cost-effective mechanisms such as community release programmes can be very successful,” he underscored.
Concerning the detention of persons with mental or intellectual disabilities, the experts pointed out that that the legislative framework is not effectively implemented to ensure that arbitrary deprivation of liberty does not occur.
“Compulsory treatment orders are largely clinical decisions and it is difficult to effectively challenge such orders,” Mr. Andenas said. “Persons undergoing compulsory assessments are often unrepresented in practice, as they do not have access to legal aid.”
The experts also noted that, despite the increasing phenomenon of older persons staying in residential care, there is very little protection available to ensure that they are not arbitrarily deprived of their liberty against their will.
Lastly, the expert group expressed concern that a notable gap remains in relation to the legislative protection available to children aged 17 years, who are considered as adults for penal responsibility effects, tried as adults and, if condemned, are sent to adult prisons.
The experts urged the authorities to extend protection measures to include 17 year olds, as recommended by the UN Committee on the Rights of the Child and the UN Committee Against Torture.
The final report of the group’s 15-day mission will be presented to the UN Human Rights Council in September 2015.
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