UN Working Group on Arbitrary Detention Statement

Peace Movement Aotearoa

8 April 2014

Below is the initial statement at the conclusion of the UN Working Group on Arbitrary Detention's visit, released at a media conference in Wellington yesterday.

The statement provides comprehensive coverage of key issues around arbitrary detention, and includes: "The Working Group is seriously concerned about the legal advice presented to Parliament about New Zealand’s international law obligations."

As well as covering issues around over-incarceration and detention of asylum seekers and refugees, persons with mental or intellectual disabilities, children and young persons, the Working Group had a particular focus on institutional racism in the criminal justice system and recommends:

"that a review be undertaken of the degree of inconsistencies and systemic bias against Maori at all the different levels of the criminal justice system, including the possible impact of recent legislative reforms. Incarceration that is the outcome of such bias constitutes arbitrary detention in violation of international law."

The Working Group also looked, for the first time here, at the protection gaps around detention in rest homes and secure facilities for older persons suffering from dementia:

"The Working Group notes 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. The Working Group calls on the authorities to develop a comprehensive, human rights-based legal framework governing the provision of services to older persons suffering from dementia or other disabilities in residential care."

The Working Group's full report will be publicly available later in the year.

Statement at the conclusion of its visit to New Zealand by the United Nations Working Group on Arbitrary Detention (24 March – 7 April 2014)

7 April 2014

The United Nations Working Group on Arbitrary Detention conducted a country visit to New Zealand from 24 March to 7 April 2014, following an invitation from the Government. The delegation was composed of the Chair-Rapporteur of the Working Group, Mr. Mads Andenas, and a member of the Working Group, Mr. Roberto Garretón. They were accompanied by two members of the Working Group’s Secretariat at the Office of the United Nations High Commissioner for Human Rights.

At the outset, the Working Group would like to thank the Government of New Zealand for extending an invitation to the Working Group to visit the country and its full cooperation throughout the various stages of the visit.

The Working Group met with various executive and judicial authorities and appreciates the information and assistance that they have provided. Annex I of this statement includes a list of authorities consulted by the Working Group.

During its visit, the Working Group also met with representatives of the New Zealand Human Rights Commission, representatives of the Law Society, members of the Bar Association, practising solicitors, academics, and representatives of civil society organizations.

The Working Group visited places where persons are deprived of their liberty in Auckland, Christchurch, New Plymouth and Wellington. The list of detention facilities that the Working Group visited is provided in Annex II.

The Working Group appreciates that it was allowed to visit all places of detention it had requested and to interview, in private, detainees selected by the Working Group, without any restriction.

General Observations

Overall, legislation and policy concerning deprivation of liberty is well developed and to a high degree consistent with international human rights law and standards. The right not to be arbitrarily arrested or detained is guaranteed in Section 22 of the Bill of Rights Act, although the Working Group notes that the Act does not have supremacy over other parliamentary legislation.

The Working Group observed how police officers inform arrested persons of the grounds for their arrest and their legal rights immediately after their apprehension, in accordance with the Bill of Rights Act. Under the principle that a person must be detained for the shortest possible time, the Police has the authority to release a person on bail until the first court appearance in the case of minor offences. Registration upon entry in police stations, internal movements and departure, and subsequent transfers to other places of detention were recorded electronically in an instantaneous and transparent fashion.

The Working Group has observed in its interviews in private with detainees, that detainees are promptly brought before a judge for the determination of the legality of their detention. Detainees have the right to initiate habeas corpus proceedings to challenge the lawfulness of their detention and in the case of unlawful detention, the victims have the right to claim and obtain compensation.

The Working Group further observed how the due process rights of accused persons are respected, including the right to be informed promptly of the charges brought against them, the right to a legal counsel, the presumption of innocence, and the right not to be compelled to confess guilty or to testify against themselves.

The total number of individuals detained in prison in New Zealand is 8,700 detainees and the penitentiary system has capacity for 10,100 places. The Working Group observed how prison facilities generally comply with the minimum standards as regards comfort, hygiene and cleanliness, provision of adequate food, access to medical care and availability of recreational activities.

The Working Group has identified a number of instances of best practice on which it will report in its subsequent report. Notwithstanding the many positive achievements, the Working Group would like to draw the Government’s attention to the following issues of concern.

Over-incarceration

The Working Group has particular concerns over the wider availability of preventive detention since the enactment of the Sentencing Act 2002, extended supervision orders under the Parole Act 2002, options for intellectually disabled offenders in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and the Public Safety (Public Protection Orders) Bill currently before Parliament.

The Working Group has noted the arguments made in support of the view that the Public Safety (Public Protection Orders) Bill is not in compliance with international law, in the Department of Corrections’ Regulatory Impact Statement and in submissions by the Law Society and by the Human Rights Commission. It has also noted the cautious balancing by the Attorney-General in his statement, and the robust parliamentary discussion so far where views differ but all want to keep within international obligations.

The United Nations Human Rights Committee and the Working Group have clarified the requirements under international law which can be restated as follows:

When a criminal sentence includes a punitive period followed by a preventive period, then once the punitive term of imprisonment has been served, to avoid arbitrariness, the preventive detention must be justified by compelling reasons, and regular periodic reviews by an independent body must be assured to determine the continued justification of the detention.

Detention conditions must be distinct from the treatment of convicted prisoners serving a punitive sentence and be aimed at the detainees’ rehabilitation and reintegration into society. 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. The substantive grounds for detention must be defined with sufficient precision to avoid overly broad or arbitrary application.

The Working Group finds that the Public Safety (Public Protection Orders) Bill as it stands before Parliament is not in compliance with international law.

Detention of Maori

The over-representation of Maori in the prison population poses a significant challenge as recognised in New Zealand’s National Report to the 2014 Universal Periodic Review (UPR) in the Human Rights Council. Maori make up more than 50 per cent of the prison population while Maori comprise some 15 per cent of the population of New Zealand. In the case of Maori women, they account for more than 65 per cent of the prison population.

The Working Group has been able to study the “Drivers of Crime” initiative. The authorities have pointed out that as a result of this initiative, the number of young Maori coming to court decreased between 2008 and 2012 by approximately 30 per cent, but the Government has acknowledged that the rate of young Maori appearing in court is still four times that of non-Maori. Maori account for 54 per cent of all young people appearing in Youth Court and 71 per cent of child offenders appearing in the Family Court.

The Working Group has also been able to study the implementation of the Youth Crime Action Plan, which focuses on reducing apprehensions, prosecutions and recidivism, particularly for Maori. The Working Group has further discussed with authorities of the New Zealand Police the need for and the work on developing a decision-making model to address inconsistencies in the way in which apprehensions of children and young people are resolved, and been able to pursue this in its visits to police stations and places of detention. The Working Group has also studied how traditional and Maori-centred approaches and solutions are sought by Police and the wider criminal justice system in a number of ways.

The Working Group recalls that the United Nations Committee on the Elimination of Racial Discrimination, the Human Rights Committee and, in two reports, the Special Rapporteur on the rights of indigenous peoples, have recommended that New Zealand increase its efforts to prevent the discrimination against Maori in the administration of justice. Particular concerns have been raised in relation to the overrepresentation of Maori women.

Another positive development is the work by the New Zealand Police to improve consistency in decision-making through reducing subjective judgements susceptible to bias. The Working Group is concerned about the extent to which such inconsistencies and bias as pointed out by the Government in its UPR report is systemic, and the degree of such systemic bias.

As to the extent, the Working Group found indications of bias at all levels of the criminal justice process, starting at the investigative stage, through searches and apprehension; police or court bail; extended custody in remand; all aspects of prosecution and the court process, including sentencing; disciplinary decisions while in prison, and the parole process including the sanctions for breach of parole conditions. Bias could typically follow where some aspect of a person’s social status or presence of a disability could constitute an aggravating or mitigating factor.

The Working Group considers that special attention should be given to the disproportionate negative impacts on Maori of criminal justice legislation extending sentences or reducing probation or parole.

The Working Group recommends that a review be undertaken of the degree of inconsistencies and systemic bias against Maori at all the different levels of the criminal justice system, including the possible impact of recent legislative reforms. Incarceration that is the outcome of such bias constitutes arbitrary detention in violation of international law.

The Working Group has studied the police review and the ‘Turning the Tides’ initiative. It recommends that the review would take further the work of the police, extending it to other areas of the criminal justice system. The Working Group also considers that the search needs to continue for creative and integrated solutions to the root causes which lead to disproportionate incarceration rates of the Maori population.

Detention of Refugees, Asylum Seekers and Irregular Migrants

New Zealand was one of the first States to accede to the United Nations Convention relating to the Status of Refugees of 1951. The Government has established an annual quota of 750 refugees. In 2012, it accepted 690 refugees from third countries for resettlement and makes efforts to facilitate their integration in New Zealand.

Outside the annual quota, the Government provides temporary protection. In 2012, 119 of a total of 303 claims for protection or refugee status were approved by the Refugee Status Branch of Immigration.

The Working Group notes that New Zealand does not have a mandatory detention policy for asylum-seekers, refugees or migrants in an irregular situation. The Immigration Amendment Act of 2013 introduced a provision which requires the mandatory detention of asylum-seekers who arrive in New Zealand by boat as part of a “mass group” containing 30 or more persons. These persons may be detained for an initial period of six months on a group warrant, which then is renewable at 28 days intervals.

It is of concern to the Working Group that New Zealand is using the prison system to detain irregular migrants and asylum seekers. They are being held in Waikeria Prison, Arohata Prison for Women and Mt. Eden Corrections Facility. Only the latter facility has a separate unit for persons detained on immigration matters and who have submitted an asylum claim. The other abovementioned prisons, as well as police stations, are not providing separate facilities for migrants in an irregular situation or asylum-seekers.

The Government has announced that it will take 150 refugees from Australia and that it might, subject to enabling legislation, transfer asylum-seekers who arrive by boat to the ‘processing centres’ of Nauru and Papua New Guinea, where individuals are held in breach of international law. States have obligations not to transfer individuals to camps where they are held in violation of international law.

Detained asylum claimants and undocumented persons who have been refused entry into the country (turnaround cases) have a right to habeas corpus to challenge the need for their detention.

The Working Group visited the Mangere Refugee Resettlement Centre, which has a capacity to lodge 150 persons in an open system. At the time of the Working Group’s visit, there were 130 persons having lodged claims for protection or refugee status or having already obtained refugee status according to the UNHCR quota. The regime for people having requested protection status is harder than the regime applied for persons having already obtained refugee status. Both categories of people may leave the centre, but those having requested protection status must request authorization.

The Working Group emphasises that detention of migrants in an irregular situation, asylum-seekers and refugees should normally be avoided and be a measure of last resort. Alternatives to detention should always be given preference. International evidence suggests that humane and cost effective mechanisms such as community release programmes can be very successful.

The Working Group is also concerned about cases reported to it in which asylum seekers and irregular migrants were not provided with legal representation and interpretation, and detained in police stations or remand prisons.

The Working Group also adds its voice to the 2010 recommendation of the Human Rights Committee, and urges the government to extend the mandate of the New Zealand Human Rights Commission so that it can receive complaints of human rights violations related to immigration laws, policies and practices and report on them.

Detention of Persons with Mental or Intellectual Disabilities

New Zealand has a robust legislative framework governing the detention of persons with mental disabilities under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The Act clearly sets out the processes whereby a person may be made subject to a compulsory treatment order, the rights of persons who are undergoing compulsory assessment or subject to a compulsory treatment order, and the processes whereby they may seek review of their detention through District Inspectors and by the Mental Health Review Tribunal.

However, it is of concern to the Working Group that the legislative framework is not effectively implemented to ensure that arbitrary deprivation of liberty does not occur. In practice, compulsory treatment orders are largely clinical decisions, and it is difficult to effectively challenge such orders. Although the Mental Health Act guarantees the right to legal advice for all patients, persons undergoing compulsory assessments are often unrepresented in practice, as they do not have access to legal aid. The Family Court, which makes compulsory treatment orders, is not a specialist court in mental health and seems to have the tendency to heavily rely on medical reports by merely one clinician and one another medical professional, who, in most cases, is a registered nurse. The Working Group further expresses its concern relating to the widespread practice of seclusion in psychiatric units. While recognizing the Government’s achievement in reducing the incidents of seclusion since 2009, the Working Group urges the authorities to eliminate this practice.

Persons who were found unfit to stand trial may be detained in forensic facilities for a long period of time due to their disabilities. One concern relates to determination of fitness to stand trial where accused persons are found to be mentally impaired. In such cases, it is determined on the balance of probabilities, which is lower than the standard of proof required in the criminal justice system. Another concern is that they may remain in detention in forensic facilities after having served the maximum term of sentence. In some cases, such persons are detained for over and beyond the maximum term of sentence.

The Working Group also heard consistent testimonies that people with intellectual or learning disabilities are at particular disadvantage in the criminal justice system. In some cases, they may be questioned by the police without the presence of a legal counsel. They are subsequently convicted and sentenced without effective legal representation, as they may either have limited access to legal aid or their legal aid lawyers may not have a comprehensive understanding of their disabilities. The Working Group would like to stress that, pursuant to article 13 of the Convention on the Rights of Persons with Disabilities, persons with disabilities must be afforded access to justice on an equal basis with others. In practice, this would translate into the need to ensure that persons with disabilities have access to legal representation and to ensure that those who may come into contact with persons with disabilities such as police officers must be adequately trained to give due consideration to their complaints on an equal basis.

Another area in which protection gaps seem to exist is the detention in rest homes or even in secure facilities of older persons suffering from dementia. The Working Group notes 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. The Working Group calls on the authorities to develop a comprehensive, human rights-based legal framework governing the provision of services to older persons suffering from dementia or other disabilities in residential care.

The Working Group also recommends that the National Preventive Mechanisms (in the New Zealand Human Rights Commission under the Optional Protocol to the Convention against Torture) are appropriately resourced to monitor all places of deprivation of liberty, including rest homes and secure facilities.

Detention of Children and Young Persons

A notable gap remains in relation to the legislative protection available to children aged 17 years. They are considered as adults for penal responsibility effects, tried as adults and, if condemned, are sent to adult prisons. Despite recommendations by the United Nations Committee on the Rights of the Child and the United Nations Committee Against Torture to extend the protection measures under the Children, Young Persons and Their Families Act 1989 (CYPF Act) to include 17-year-olds, this has not occurred. The Working Group also heard evidence on detention of young persons in police cells, and will report more fully on this.
The Working Group was informed that New Zealand is currently reviewing its practices relating to the separation of young people deprived of their liberty from adults, as part of an on-going review of its reservation to Article 37(c) of the Convention on the Rights of the Child.

There are certain remaining issues but the Working Group would urge New Zealand to fully comply with the requirements of the Convention on the Rights of the Child and to withdraw its reservations.

Remedies for Victims of Arbitrary Detention

The Working Group has reviewed New Zealand’s law on remedies, and the Prisoners’ and Victims’ Claims Act 2005 with subsequent amending legislation. The 2005 Act restricts awards of compensation sought by specified human rights or torts claims made by a person under the State's control or supervision. It also provides a simplified process for the making and determination of claims that a prisoner as a victim may make against compensation required to be paid in respect of specified human rights or tort claims made by the prisoner. When the 2005 Act was adopted, the Select Committee emphasised that the Act fully complied with international obligations and the Bill of Rights. Legal advice provided by the Crown Law Office confirmed that the bill as drafted was not in breach of either. However, the Attorney-General in his 2011 report on later amending legislation, concluded that the 2005 Act was inconsistent with the right to an effective remedy for breach of the Bill of Rights and also inconsistent with New Zealand’s international obligations, citing the concerns by the Committee against Torture and the Human Rights Committee.

In Christopher Hapimana Ben Mark Taunoa and Ors v The Attorney General and Anor, [2007] NZSC 70, the Supreme Court awarded damages for unacceptable prison conditions in breach of the Bill of Rights and international law obligations. The judgments in this case leave certain questions including on the level of compensation where the Working Group agrees with the judgment of Chief Justice Elias when she authoritatively restates and applies international law in favour of upholding the Court of Appeal.

The Working Group is seriously concerned about the legal advice presented to Parliament about New Zealand’s international law obligations. In the Working Group’s opinion, the 2005 Act and subsequent amending legislation extending it, is in breach of New Zealand’s international law obligations. The right to an effective remedy, as set out not only by the Attorney-General in his 2011 report but also by Chief Justice Elias in Taunoa, requires renewed review of the legislation to ensure compliance with the right to an effective remedy and the prohibition of retroactivity.

In conclusion, the Working Group invites the Government of New Zealand to consider the issues that it has raised today. These are the preliminary observations of the Working Group at the end of its visit. A final report on the visit will be presented to the Human Rights Council in 2015. In its report the Working Group will submit its concrete recommendations to the Government.

Thank you very much.

Annex I: List of executive and judicial authorities consulted by the Working Group
• Ministry for Foreign Affairs and Trade
• Minister of Justice and senior officials of the Ministry of Justice
• Chief Justice of the Supreme Court
• Chief Judge of the District Court
• Chief Judge of the High Court
• Deputy Solicitor-General (Constitutional) and senior officers of the Crown Law
• Director of the Public Defence Service
• Members of the Mental Health Review Tribunal
• Public prosecutors
• Ministry of Social Development, Child Youth and Family
• New Zealand Police
• Department of Corrections
• Ministry of Health
• Ministry of Business, Innovation and Employment, Immigration New Zealand
• National Preventive Mechanisms:
o New Zealand Human Rights Commission
o Office of the Children’s Commissioner
o Independent Police Conduct Authority
o Inspector of the Service Penal Establishments
o Ombudsman
Annex II: List of detention centres visited by the Working Group on Arbitrary Detention

Wellington:
• Central Regional Forensic Mental Health Service
Auckland:
• Mt. Eden Corrections Facility
• Auckland Prison
• Auckland Central Police Station
• Mangere Refugee Resettlement Centre
• Auckland Airport Immigration Facilities
• Middlemore Hospital
• Mason Clinic
New Plymouth:
• New Plymouth Remand Centre
• High Court holding cell
• New Plymouth Police Station
• Taranaki Base Hospital
Christchurch:
• Christchurch Women’s Prison
• Rolleston Prison
• Burnham Military Camp
• Te Puna Wai Tuhinapo - Youth Justice Residence
ends

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