Crimes of Torture Amendment Bill

Hon MARK BURTON (Minister of Justice) Link to this

I move, That the Crimes of Torture Amendment Bill be now read a first time. It is my intention to move that the Crimes of Torture Amendment Bill be referred to the Foreign Affairs, Defence and Trade Committee for consideration. This bill is an important piece of legislation. It provides for compliance with the Optional Protocol to the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. In doing so, the bill sends a clear message to all those who commit torture and other forms of ill-treatment that New Zealanders find those practices abhorrent and intolerable. The Foreign Affairs, Defence and Trade Committee has conducted an international treaty examination of the Optional Protocol, and concluded that: “Ratification will reinforce New Zealand’s reputation as a country that has a strong and unfaltering commitment to human rights and is prepared to take steps in order to ensure human rights are protected in New Zealand and the international community.”

For many New Zealanders torture is a remote concept. Most of us have never experienced the fear of torture, and I hope that remains the case. Despite being prohibited under international law for more than 50 years, sadly torture still continues to be widespread in many parts of the world, particularly within places of detention. Persons who are deprived of their liberty are most at risk, as they are cut off from the outside world and are dependent upon the authorities for their most basic needs and the protection of their rights. I am pleased to note that the New Zealand legal system already provides strong protection against torture under the New Zealand Bill of Rights Act and the Crimes of Torture Act. The Optional Protocol provides another tool in our kit against torture, and offers an innovative approach to combat torture. No other international treaty provides the concrete steps to prevent this repugnant and illegal practice from occurring.

Practical experience both in New Zealand and overseas has shown that visits to places of detention are one of the most effective means to prevent torture and to improve conditions of detention. Visits not only have a deterrent effect but also enable experts to examine at first hand the treatment of persons who are deprived of their liberty and their conditions of detention. Many problems stem from inadequate systems, which can be improved through regular monitoring. By making recommendations for improvements in establishing a continuing dialogue with detention personnel in relevant authorities, the visiting experts are able to help resolve many of the problems observed. The Optional Protocol acknowledges this by establishing a system of regular visits to places of detention, which are carried out by complementary international and national independent expert bodies. This focus upon prevention represents an innovative development within the United Nations human rights system.

The Optional Protocol breaks new ground by setting out, for the first time in an international instrument, criteria and safeguards for effective preventive visits by proactive international and national bodies. The bill is not only a measure to ensure that New Zealanders will continue to be protected against torture and other forms of ill-treatment in the future; it is a signal to others around the world that torture will not be tolerated, and with the collective efforts of the international community we hope it can be prevented.

The bill is another example of how this Government defends and advances international human rights in the multinational environment. It illustrates New Zealand’s strong commitment to the protection and promotion of international human rights, as embodied both in international law and in our own domestic law. The bill is a positive example of how to ensure compliance with the Optional Protocol and its goal of preventing torture. The bill provides for a regime that enables New Zealand to comply with its obligations under the protocol; includes provisions that enable an international body to visit places where people are deprived of their liberty; allows the designation of one or more domestic bodies, known as National Preventive Mechanisms, to also examine places of detention; and establishes a Central National Preventive Mechanism to coordinate the activities of those domestic bodies.

The first pillar of the preventive system will be a new international body—a subcommittee of the United Nations Committee Against Torture. The Optional Protocol charges the subcommittee with making regular visits to places where people are deprived of their liberty, and to make recommendations to State parties concerning the protection of persons deprived of their liberty against torture and other forms of ill-treatment. The bill enables the subcommittee to exercise in New Zealand its functions and powers set out in the Optional Protocol. The subcommittee will be permitted to visit any place under the Crown’s jurisdiction or control where persons are deprived of their liberty, to have unrestricted access to such information as is necessary for the proper performance of its functions, and to conduct private interviews with detained persons.

The bill also provides that, in accordance with the provisions of the Optional Protocol, members of the subcommittee may be accompanied by one or more experts when visiting the place of detention. After visiting places of detention, the subcommittee will proffer recommendations and observations, confidentially, to the New Zealand Government. The subcommittee may publish its report, together with any comments of the Government if requested so to do by the Government.

The second pillar consists of a system of regular visits undertaken by national bodies to places of detention. The Optional Protocol requires each State party to have, at the domestic level, at least one visiting body for the prevention of torture. Those bodies will be referred to as National Preventive Mechanisms. The bill authorises the Minister of Justice to designate National Preventive Mechanisms, which must be functionally independent from State authorities. New Zealand already has agencies that fit this mandate and will act in this role, such as the Ombudsman and the Police Complaints Authority. The functions of a National Preventive Mechanism are to examine at regular intervals the conditions of detention, examine the treatment of detainees, and make any recommendations for improving the conditions of the detention and the treatment of detainees, with a view to preventing torture.

A National Preventive Mechanism is also required to provide at least one written report to the Minister of Justice each year on the exercise of its functions under this bill. The bill also authorises the Minister of Justice to designate a Central National Preventive Mechanism to coordinate the activities of the National Preventive Mechanisms, and to maintain effective liaison with the UN subcommittee. This will be an important role, given the range of places of detention in New Zealand and the likelihood that several institutions may contribute to the role of monitoring those places for the prevention of torture. It is likely that the Human Rights Commission will have that role.

In carrying out its functions, the Central National Preventive Mechanism must consult and liaise with the review and reports prepared by the National Preventive Mechanisms, and coordinate the submissions of those reports to the subcommittee. Flowing from those tasks, the Central National Preventive Mechanism also has responsibility for advising the National Preventive Mechanisms of any systematic issues arising from those reports. The body may also make recommendations to the Government on any matters relating to the prevention of torture and other cruel, inhuman, and degrading treatment or punishment in places of detention within New Zealand.

I am confident that this bill will enable compliance with the Optional Protocol. More important, I am confident that this bill will help ensure that for generations of New Zealanders, now and in the future, torture will remain an unthinkable impossibility in a country that treats the practice with the contempt it deserves. I commend this bill to the House.

Dr RICHARD WORTH (National) Link to this

National supports the referral of this bill to a select committee for further consideration, but we do express some reservations. I am sure that the work of the select committee in examining the submissions that will be received on the legislation will likely lead to improvement in the form of the bill, if it is reported back in a favourable way.

A good starting point is to say that New Zealand, together with like-minded countries, continues actively to encourage States on issues relating to the right not to be tortured. That right, I would say, is one of the core, non-derivable human rights, and it is therefore of the highest priority. New Zealand, traditionally, has been an active supporter of attempts to eradicate torture internationally, and has spoken out on instances of torture that occur. As the previous speaker said, in New Zealand we have enacted the Crimes of Torture Act, and on 26 June 1987 the convention against torture—to give it its short name—entered into force. New Zealand signed the treaty in relation to that convention on 14 January 1986, and ratified it on 10 December 1989.

It was contemplated that more work needed to be done, and that is the reason why today we confront this proposal to entrench into New Zealand law the provisions added by the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I note that although we have signed that Optional Protocol, we have not taken the second—and in some ways more critical—step of ratifying it, because the process of ratification, coupled with domestic legislation, is the essential element that brings into force international law in this country.

The previous speaker spoke about what lies behind the Optional Protocol. In summary, it provides further measures to achieve the purposes of the convention, and its objective is to establish a system of regular visits by international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel punishment. It is right to say—it must be said—that New Zealand abhors torture and other cruel, inhuman, and degrading treatment or punishment. Again, as the previous speaker said, within New Zealand there is a range of protections to proscribe and prevent torture.

But some basic issues need to be considered in looking at legislation of this type. The first issue that I would identify, as to whether to proceed with the implementation of this Optional Protocol, is to examine the Government’s approach to the United Nations treaty committee system. Certainly, in speaking for myself and for members of the National caucus, I say that we remain concerned that the United Nations committees are not focusing on the most pressing of human rights violations. There are many illustrations of that, but surely Zimbabwe would provide a great example. It seems to us that the United Nations and other international entities sit back because the issues are difficult. They do not confront human rights violations as they should but, instead, proceed with the implementation of treaty regimes that effectively do not confront issues that quite clearly should be confronted.

The subcommittee established by the Optional Protocol will be able to conduct visits to New Zealand facilities—as it will to the facilities of any other countries that implement the Optional Protocol—regardless of whether there are substantive concerns regarding allegations of torture. In a very general way, I would say that that is incompatible with New Zealand’s approach, which is to allow committee visits only where there is compelling reason to do so, and to focus resources in the areas of greatest needs. Second, I would say there is no suggestion that the independent National Preventive Mechanisms are inadequate in New Zealand. We have the Crimes of Torture Act, as the previous speaker said we have provisions in our New Zealand Bill of Rights Act, and other measures are available to those who assert that there has been a breach of human rights in the context of torture—which I would like to come back to in a moment.

The third issue that I think needs to be looked at is that there are some procedural and substantive concerns with regard to the Optional Protocol. It is a statement of fact, in connection with the procedural concerns, that the Optional Protocol was developed without widespread consensus, and it was certainly not considered in detail by the working-group that was established to consider the draft text. The substantive concerns relate to the need for United Nations treaty bodies to operate effectively with committees focusing on areas of greatest human rights violations. As it stands, the Optional Protocol will allow visits to any member State, regardless of whether there are concerns about allegations of torture. So there will be a temptation for this committee to embark on a series of junket trips around the world, and to come to countries like New Zealand or Australia, where torture is not an issue of substantive concern, rather than to focus on those countries that demonstrate a flagrant disregard for human rights and the rule of law. As a balancing comment to those three observations I have just made, I would certainly accept that in the implementation of the protocol we would be sending a message setting an example, if you wish, of human rights. But that in itself is not a compelling reason, because New Zealand is already regarded as a leader in human rights standards.

There are three key measures in the legislation—first, the setting up of a subcommittee of the existing committee to exercise its functions in New Zealand. As the previous speaker said, that includes visiting jails and other detention facilities, allowing unrestricted access to information, and conducting private interviews with prisoners. The second key part is to authorise the Minister of Justice to set up what are called National Preventive Mechanisms to make recommendations for improving conditions of detention and prisoner treatment. I am not sure we need that; I believe that the changes that have been passed through this Parliament in recent years provide appropriate condition standards and indicators of what should be appropriate prisoner treatment.

The third issue is to designate a Central National Preventive Mechanism to coordinate the activities of the National Preventive Mechanisms and to liaise with the United Nations subcommittee. We have recently passed legislation in New Zealand that establishes a code for prisoners to sue in respect of alleged breaches of their rights. We did that in broad terms in the context of this torture convention, to which, as I have said, New Zealand is a party. But we did it with a very important saving, and that saving was that we entered a stipulation that the Government of New Zealand reserved the right to award compensation to torture victims, referred to in article 14 of the convention, only at the discretion of the Attorney-General of New Zealand. We went further in fact than our clear international treaty obligations. So I express the hope that when the select committee looks at the merit of this legislation, it will judge it on those three parameters, which as I indicated in the course of my speech are the truly critical ones.

DIANNE YATES (Labour) Link to this

I rise to speak on the first reading of the Crimes of Torture Amendment Bill. I am particularly pleased that the bill will be referred to the Foreign Affairs, Defence and Trade Committee, because that committee has already conducted an examination into the Optional Protocol and it concluded: “Ratification will reinforce New Zealand’s reputation as a country that has a strong and unfaltering commitment to human rights and is prepared to take steps in order to ensure human rights are protected in New Zealand and the international community.” As we have seen, it is the good guys who have signed this treaty so far. It was initially agreed in 2002, and the Hon Phil Goff put out a press release on 24 August 2003 that said New Zealand was to sign this treaty. We now have in 2006 that we will bring it into our legislation, because, as we all know, no international treaty can come into New Zealand law unless it goes through this House.

We have noticed that the legislation allows for inspection of places of detention, and those places of detention are described in the bill as a prison, a police cell, a court cell, a hospital, a secure facility, a residence established under section 364 of the Children, Young Persons, and Their Families Act, premises approved under the Immigration Act, and a service penal establishment. I would be interested to see whether that covers monasteries and also home detention, but that is something the select committee can look at when we are going through the bill and getting advice from both the Ministry of Justice, as the bill is in the name of the Minister of Justice, and the Ministry of Foreign Affairs and Trade.

I note, too, that the committee that is to do this inspection, if we are concerned about who is to do it, is the National Preventive Mechanism, which is a strange name. The National Preventive Mechanism means one or more of the following that may, for the time being, be designated under section 26 as a National Preventive Mechanism: an ombudsman holding office under the Ombudsmen Act, the Police Complaints Authority, the Children’s Commissioner, persons designated by the director-general under section 32 of the Health and Disability Services (Safety) Act, visiting officers appointed in accordance with relevant Defence Force Orders, and any other person or agency that is designated a National Preventive Mechanism. I think the last one is a rather vague definition, and once again the select committee, when we get to that stage, might like to ask for a closer definition in that regard.

We note too that when an inspection has been made, the report is given in confidence to the particular Government. I note also there is confidentiality of information for people who will give information under the Crimes of Torture Amendment Bill. We note that the schedules, as designed by the UN, are attached to the bill and we note also that there are several changes to many bills. I am sure Richard Worth will be very interested that we are amending the Corrections Act; the Crimes of Torture Act, which is what this is all about; the Health and Disability Services (Safety) Act; the Intellectual Disability (Compulsory Care and Rehabilitation) Act; the Mental Health (Compulsory Assessment and Treatment) Act; the Ombudsmen Act; and the Police Complaints Authority Act. So a whole range of Acts have to be amended in order for this bill to come into law.

The select committee no doubt will be asking some very interesting questions—what if this happens; what if that happens—to ensure that our New Zealand sovereignty is maintained, because whenever we sign anything of this nature we have to ensure that the sovereignty of New Zealand is maintained over our own institutions. So even though we are signing up to allow inspections, and will be involved in inspections, there is still the right of New Zealand to have its own information and its own laws in this regard.

We look forward to examining this bill in closer detail in the select committee. We look forward to hearing submissions from members of the public. We look forward to hearing from officials from the Ministry of Foreign Affairs and Trade who have advised the Government on this issue, and from the Ministry of Justice. I thank the Minister for bringing this bill to the House. Once again, we are pleased that New Zealand is taking a lead, because I do not think anybody in this House condones torture of any kind. However, when we adopt this sort of legislation, we need to be very careful about how we check it off with our own legislation.

SIMON POWER (National—Rangitikei) Link to this

I never thought I would start a speech in this House by saying that I agree with Dianne Yates, but the reality is that all members of this House and all members of the public will be opposed to torture and any other cruel, inhuman, or degrading treatment or punishment. The Crimes of Torture Amendment Bill, as would have been stated by my learned colleague Dr Richard Worth, implements the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the UN in December 2002 and signed by New Zealand almost a year later, in September 2003.

Although the UN may provide countries around the world with a standard or, indeed, a set of protocols to which they should adhere, these matters should not simply be taken as read; nor should they be taken without questioning. As Dr Worth has stated, National will support this bill to the select committee but will require some convincing beyond that point that indeed the bill warrants further support. It is hoped that the select committee process will enable members of the public, as well as members of Parliament, to examine the bill in a way that not only preserves New Zealand’s sovereign right to make its own decisions, as indicated by Dianne Yates, but also enables New Zealand to involve itself at an international level in a way that has been consistent with our history of having been signatory to many protocols and conventions that are designed, I guess overall, to make the world a better place.

However, some issues need to be addressed, and the Parliament of the Commonwealth of Australia examined this protocol, in what was known as report 58, in March 2004. I think it is worth reading out three points in order to give some context to the discussions that will inevitably flow from the select committee consideration of this bill: “Firstly, the issue of whether to sign the optional protocol needs to be examined in the context of the Australian government’s approach to the UN treaty committee system. Australia remains concerned that the UN committees are not focusing on the most pressing of human rights violations.” The select committee, when it is examining this bill, will need to assure itself before it reports back to the House that that particular matter does not present itself as a hurdle for the New Zealand Parliament when considering this matter further. The report suggests further: “Secondly, there is no suggestion that the independent national preventative mechanisms are inadequate in Australia.” This Parliament needs, through the select committee process, to convince itself that there is no suggestion that mechanisms currently operating in New Zealand are inadequate or, indeed, require the ratification by way of entry into domestic law of this protocol in a way that suggests current measures in New Zealand are inadequate.

The report goes on to state: “Thirdly, there are also some procedural and substantive concerns with regard to the Optional Protocol. The procedural concerns are that the Optional Protocol was developed without widespread consensus and was not considered in detail by the working group which was established to consider the draft text. The substantive concerns relate to the need for UN treaty bodies to operate effectively with committees focusing on the areas of greatest human rights violations.” In fact, those matters will also need some consideration in the New Zealand context, and there will need to be, I guess, some bolstering in the eyes of National members on the committee that the third matter raised in this report to the Australian Parliament does not give rise to any shortcomings or concerns on behalf of New Zealand parliamentarians in respect of the ratification of this particular convention—or Optional Protocol, as I believe it is—into domestic law in New Zealand.

So although there are three key measures in this bill, the first being to enable a subcommittee to exercise its functions in New Zealand, which includes visiting jails, getting unrestricted access to information, and conducting private interviews with prisoners, it is hard to believe, actually, that many of those measures do not already exist in New Zealand law. In particular, members will be familiar with new section 161 of the Corrections Act, which enables a member of Parliament, without permission or any other notification, to arrive at a correctional facility and to wander through in a way that convinces that member that that jail is in order and that prisoners are being treated correctly.

The second key measure authorises the Minister of Justice to set up one or more National Preventive Mechanisms to make recommendations for improving conditions of detention and prisoner treatment. But in New Zealand, prisoners already have an almost unfettered right to the Ombudsman, if, indeed, there are issues in our prisons or correctional facilities that are concerning them. Of course, in a country with an effective Opposition many of those issues are raised in different forums, and not just by the prisoners themselves, if, indeed, the corrections department is falling below a standard that the public would expect it to follow.

The third key measure is to designate a Central Preventive Mechanism—I do not even know what that means—to coordinate the activities of the National Preventive Mechanism and to liaise with the UN subcommittee. That sounds like one of Steve Maharey’s working parties. It seems to me that if that key measure can be put in a way that produces clear, concrete, practical, down-to-earth outcomes, then that is fine. But let us not pass into law legislation that actually is not required, in the sense that there are a number of valves available to those in our prison system to activate in the event that many of the concerns contained in the Optional Protocol were not being addressed. Let us not overdo this in a way that assumes that our domestic ability to handle these matters does not fit snugly within the Optional Protocol. What I am saying, in short, is that it is up to the select committee to determine whether many of the issues raised in the Optional Protocol are not already well covered by New Zealand domestic law. Many will have a suspicion of an international organisation imposing its views on domestic sovereign countries, but if the standards are being met anyway, then we need to make a decision at the select committee about whether this bill needs to progress any further.

As my colleague Dr Richard Worth said in his opening remarks, National will support this bill going to a select committee in the first instance, but will reserve its right to consider this matter further once the select committee has heard submissions, and, in particular, in the event that National members of the select committee concerned believe that there are already domestic safeguards in place that may render this Optional Protocol less than necessary. But that is a matter for the select committee. At this point, the National Party will support the first reading of the Crimes of Torture Amendment Bill.

RON MARK (NZ First) Link to this

Firstly, I put on the record that New Zealand First will support this bill’s referral to a select committee. Secondly, I indicate to the House that in the eyes of some of us, this bill is another example of how the Government has taken it upon itself to be involved in all sorts of protocols and all sorts of negotiations with a little body called the United Nations, which is made up of all sorts of funny little committees with all sorts of funny people appointed by all sorts of funny little Governments, that will enforce upon us protocols, procedures, and laws that it deems appropriate to us.

NANDOR TANCZOS (Green) Link to this

I rise to speak on behalf of the Green Party on the Crimes of Torture Amendment Bill and say at the outset that, yes, we will be supporting this legislation, because we think it is important. The international context in which we operate today means that international law needs strengthening in the face of recent atrocities. In the last couple of decades we have been witness to things that we thought we had seen the end of. We have seen acts of genocide in the former Yugoslavia, Rwanda, and other places. We have seen an illegal military occupation of Iraq by the United States of America. We have seen enormous international concern over the so-called rendering of suspects and the clear complicity in torture by the United States—and even involvement in torture in places like Abu Ghraib prison—and suspected torture in places like Guantánamo Bay. So it is timely that Parliament addresses a bill of this kind, even if it is a fairly meek attempt to address what is a significant international problem.

Essentially, the bill ratifies the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that was adopted by the United Nations General Assembly in 2002. I have to agree with some of the comments made by Mr Mark. He mentioned a number of points, one of which was the growing number of international treaties and agreements that we are signed up to without there being significant oversight by the Parliament. The Green Party, along with some other parties, has been consistent in looking at how we can get more parliamentary oversight of those international agreements. I am pleased to see this bill before the Parliament, because it means that we do have a chance to discuss, debate, and address it in the select committee, so it is useful in that sense.

Mr Mark also raised concern about those members of the United Nations that will not sign up to the Optional Protocol, and of course he is quite right, because its provisions only apply to those countries that do sign up and implement the measures. The real concern is those countries that will not be signatories to the Optional Protocol. Mr Mark talked about a number of non-Western countries—non-democratic countries, such as some states in Africa, the Middle East, and the like—but he also alluded to the very point that I will bring up. But it does not stop there. It also goes to the United States and the concern that when the world’s remaining superpower shows scant regard for human rights and international laws against the use of torture and shows a contempt for the international consensus against the use of torture, we are in a pretty serious position.

Clearly, Mr Mark is also right about China. The Green Party has been consistent in condemning the Chinese Government, both for its internal practices and for its behaviour in relation to places like Tibet and other nations that China considers part of Greater China. Those are issues that need to be talked about.

The Optional Protocol establishes a subcommittee from the existing United Nations Committee Against Torture regularly to visit places where people are deprived of their liberty and to make recommendations to State parties concerning their protections. That is something we support. One of the issues is that the subcommittee makes its recommendations and observations confidentially to State parties. One has to wonder that although there is some value, in that it perhaps holds those States to account to some degree, it significantly weakens the hand of the subcommittee if those reports are to remain confidential. So we have concerns about that. But the general principle that the subcommittee be permitted to visit any place and have unrestricted access to persons deprived of their liberty and of information is important.

To go back to the situation of the United States in Guantánamo Bay, where there is enormous international concern about the treatment of prisoners at Guantánamo Bay, one of the significant issues is the lack of access. The international community has no way of really knowing what is going on there, and there have been a number of rumours over the years. We have started to see people now being released—people who had the good fortune of being citizens of Britain and places like that. Some of those stories are coming out. But the issue of access to persons detained is enormously important, and anything we can do to strengthen the international resolve to ensure that that ability is protected and strengthened is, I think, something that this Parliament should leap at the chance to do. So we support that.

The other issue I was going to raise was around the National Preventive Mechanisms. Mr Mark was fairly scathing of some of those provisions, because I think he viewed it as simply another committee or bureaucracy, or something being set up, and questioned whether it would have any value whatsoever.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

Tangata whenua have always valued the right to life, to liberty, and to security of people as articulated in article 3 of the Universal Declaration of Human Rights. We all know that it goes further back than that, and we recognise the impact of the Magna Carta as human rights of liberties and freedom. Clause 13 of the Magna Carta describes the guaranteed protection and recognition of what it called ancient liberties and free customs of the people on the land as well as the water. All members of this House will, of course, recognise the close relationship of this clause to article 2 of Te Tiriti o Waitangi, which preserves for our indigenous peoples ancient liberties and free customs that we enjoyed on the land as well as the water. These are indigenous values. They are international values. They are values that we seek to uphold. They are values that instruct us on the reasons to oppose torture and other cruel, inhuman, or degrading treatments or punishments. They are values that therefore guide us on how we respond to the Optional Protocol.

Māori have always opposed human rights abuses. We have opposed all forms of torture and abuse, violence, rape, and genocide. We stand for the importance of truth and justice, and of freedom from abuse and terror. We stand also for the need to restore our international reputation through compliance with international human rights law. We therefore uphold and recognise the importance of article 5 of the Universal Declaration of Human Rights in which no one shall be subjected to torture or to cruel, inhuman, or degrading treatment for punishment.

We know from the many United Nations Committee Against Torture reports into the performance of this country that our reputation around cruel, inhuman, or degrading treatments for punishment is not that hot. The committee’s recommendations to the New Zealand Government in June 2004 included the fact that juveniles are sometimes not separated from adult detainees, and have been detained in police cells owing to a shortage of Child, Youth and Family residential facilities. The findings of the Ombudsman referred to investigations of the alleged assaults by prison staff on inmates, in particular the reluctance to address such allegations promptly, and the quality, impartiality, and credibility of investigations.

New Zealand responded by saying that for all allegations relating to control and restraint, and incidents relating to the use of force, prisoners are provided with the opportunity to lay a complaint about the incident with police. “Provided with an opportunity” hardly seems to hit the mark. Surely it should be said that this Government will do everything possible to ensure that control and restraints, and the use of force, are not abused at the expense of well-being and human rights. The Government response goes further to state that although these incidents are not subject to a formal internal investigation, prison managers are required to review them as soon as possible after they have occurred. One does have to wonder why on earth these incidents are not subject to formal internal investigation. Is that saying that we support such deplorable actions taking place?

Two years later, and just 20 days ago, another forum: the United States of America issued a country report on human rights practices in New Zealand. Its report released by the Bureau of Democracy, Human Rights and Labor on 8 March 2006 listed the following issues under prison and detention centre conditions as occurring during the 12-month period ended June 2005. First, prison overcrowding was a problem. Second, juveniles spent more than 600 detention nights in police cells. Third, eleven inmates from Pāremoremo prison behavioural management regime were awarded compensation for breaches of their rights under the Bill of Rights Act. Fourth, management failings in the “goon squad” allowed the unit to develop into an inappropriate, militaristic culture.

This litany of failure is an absolute travesty of justice. It is an indictment on this country that we are still receiving reports condemning the cruel, inhuman, or degrading treatment or punishment meted out at Mangaroa, Pāremoremo, and inside South Island prisons where guards allegedly spooked and harassed inmates, waking them in the night, rattling cages, dragging out anyone who gave them lip, and locking them in punishment cells.

These incidents are not isolated or new. We all have experiences and stories within our tribal histories that guide us into understanding the concept of torture. My colleague Te Ururoa Flavell made mention of this in his maiden address to this House when he reminded us of the statement made by Mokomoko o Te Whakatōhea being hanged for a crime he did not commit. Mokomoko said: “Tangohia te taura i taku kakī, kia waiata au i taki waiata.”—“Take this rope from my throat so that I may sing my song.” This, I believe, was a reference to his desire to let the world know the truth about his conviction. We must never forget that he was hanged; he has since been pardoned.

Tim Finn has pronounced to the world the concept of torture as it relates to tangata whenua in his song “Parihaka”. I will save members the torture of me trying to imitate Tim Finn, by telling the story instead. The Government passed the Suppression of Rebellion Act 1863. This Act defined Māori fighting for their land as rebels who could be detained indefinitely without trial. During that period of non-violent unrest, hundreds of Māori were arrested and kept in prison without trial. The conflicts between the people of Parihaka and the settler-backed Government came to a head in 1881. On 19 October 1881 the Native Affairs Minister, William Rolleston, signed the proclamation to invade Parihaka. On 5 November 1881 the peaceful village was invaded by 1,500 volunteers and members of the armed constabulary. The soldiers were welcomed by the 2,000 people of Parihaka allowing themselves to be arrested without protest. Te Whitiand Tohu were the first to be led away. They were imprisoned without trial, then taken on a tour of the South Island to show them all the progress and developments made by the Europeans.

The forced incarceration and the imprisonment of the people within caves were all experiences of torture in a 19th century context, yet Te Whiti continued to ask that his people be given justice, their freedom, and return to their tribal lands.

Whakatōhea and Parihaka created an infamous history of torture in this land. The modern-day Committee Against Torture, and US department reports, create a new history through the review of activities at Pāremoremo prison, Mangaroa Prison, and who knows where else. It is to this end that the Māori Party will, of course, support this bill through to select committee. Although we support the wide scope of the bill in covering all places where people are detained—hospitals as well as prisons—we are also mindful that there are discrepancies between the Optional Protocol and the Crimes of Torture Amendment Bill. However, we do have some reservations. In particular, we believe that having a United Nations subcommittee on prevention look into the conditions of detained persons in New Zealand would be valuable, particularly in terms of prisons that the Committee Against Torture has already raised concerns about. An external independent agency that is functionally independent and that is able to apply scrutiny to the conditions of detention applying to detainees, and the treatment of detainees, and to make recommendations for improvement, is essential in a free society.

The Māori Party promotes a system based on justice that heals. We promote a system that rejects any attempts to alienate victims and their families, or that dehumanises perpetrators and their families. We stand for truth, justice, and freedom from abuse and terror. Ake, ake, ake, tonu, atu.

Hon PETER DUNNE (Leader—United Future) Link to this

This is an interesting bill. At first glance it is very difficult to be opposed to the nature of it, in terms of stamping out torture and giving rights and freedoms to various groups to identify and report instances of torture. We can all think of various international situations—Guantánamo Bay, for example, and Abu Ghraib—and various countries where civil rights are routinely and regularly abused where we would see this legislation applying, and we would say “And rightly so.” We would say that was entirely as it should be, and the United Nations should have the authority to identify those abuses and to bring those countries and the perpetrators of those abuses to account. But I suspect that New Zealanders may have a different view when they realise that the provisions of this legislation apply in this country, as well as in other countries.

For instance, if I look at new section 18 in clause 6, I see it states that in relation to places of detention the subcommittee will have unrestricted access to information about the number of places of detention in New Zealand, the location of places of detention, the number of detainees, the treatment of detainees, and the conditions of detention applying to detainees. That is a very wide brief affecting those who are incarcerated or detained in this country. Routinely we hear discussion about prison overcrowding. We had a discussion earlier today about the fact that at the moment we seem to be running a minor aviation business in transporting prisoners around the country, to escape overcrowding. I wonder how long it will be before a very clever lawyer works out that there is scope to raise with the subcommittee issues relating to prison overcrowding in New Zealand as an instance of international torture. We may dispute that. We may say it is grossly exaggerated and unreasonable, but it is just the sort of thing that we would be very happy to point the finger at in respect of other countries and to say it is an outrage that ought to be reviewed.

I do not oppose the bill. United Future will be supporting its first reading and referral to a select committee. I simply draw attention to the apparent inconsistency in a measure of this type: as a country we are very good at supporting the rights of others offshore, but I suspect—and the previous speaker made this point—we are not nearly as good when it comes to supporting the rights of people onshore.

I wonder what will happen the first time the provisions of this legislation are invoked in respect of a situation in New Zealand, as I imagine they will be at some stage. I look forward to the hypocritical howls of outrage that will flow at that time about the interference of the United Nations in the domestic affairs of New Zealand—about how dare our sovereignty be compromised by an international body telling us what to do. Then, in the next breath, people will be out marching against human rights oppression in China or somewhere else. I guess that is part of the delightful inconsistency of the human condition. But it does highlight the fact that when we enter into international agreements of this type—and I noted, from either the preamble to the bill or from another document that I read just recently, that New Zealand has been strongly committed in the United Nations to the extension of the protocol to include these provisions; it has been one of the leading nations going back some 3 or 4 years in that regard—the reality for many Kiwis will only strike when they hit at home.

I can think of many instances over the years. My friend and colleague spoke earlier about Mokomoko. I think many instances more recent in origin than that will arouse concern, depending on where one sits. For instance, there may be those who would say that people who have been imprisoned as a result of activities for political beliefs in New Zealand in various times could be subject to the provisions of this convention. What about people who have what we may regard as unjust convictions for crimes, and who languish in jail for many years? Would they be covered by this provision—an Arthur Allan Thomas, for instance?

The point I am making is that it will all be in the eye of the beholder. Although we need to stand tall on the issue of wanting to stamp out torture, unreasonable detention, and unfair limitations on people’s freedom, we need to recognise that it starts at home. Like, I suspect, many members of this Chamber, I am a member of Amnesty International. I support it and the causes that it pursues—the horrendous examples that it draws to our attention of abuses that occur day in and day out. Like many members of the House and many members of the public, I would be far from comfortable if Amnesty International then started to say it will run a domestic campaign and point out limitations and abuses that occur in this country.

When the bill refers to places of detention and the location of places of detention, we imagine it may refer to prisons. But what about mental hospitals? What about people who are detained long term because they are deemed to be, in someone’s judgment, a threat to the community? Not very long ago, when deinstitutionalisation started to occur, we found many examples in New Zealand of people who had been put into such institutions as teenagers and who were forgotten about 30 or 40 years later. Are we opening up the possibility of a United Nations subcommittee now having the power to investigate situations of that type? I suspect that we are. That may be no bad thing, but let us be aware of what we are doing, so that when it occurs we do not turn round and ask how on earth we got into that situation and why the United Nations is telling us what to do.

My colleague Mr Hayes would have heard that refrain many, many times during his career, and would have heard the question: why is an international busybody interfering in our affairs? It seems to me that we are more than happy to give international bodies the authority to highlight abuses in other countries. Going right back to the 1970s, I remember Mr Ordia and the Supreme Council for Sport in Africa and the UN’s subcommittee on apartheid. We thought it did a great job when it pointed out oppression in the African subcontinent. But when it came here and said our All Blacks should not go to South Africa or it would tell the countries of the international Olympic movement to boycott us at Montreal, we had a very different attitude. I do not think that things have moved very far from that in the interim.

So although I speak in support of the bill—because I think it is the right and proper thing to do—I simply want to enter the caution that we may well find, as this legislation is implemented and as individual citizens in New Zealand start to recognise its possibilities, that we have uncovered a very uncomfortable situation. And the challenge to our nation at that point will be how we face up to it.

Hon MARK GOSCHE (Labour—Maungakiekie) Link to this

I am pleased to be able to speak briefly in this debate on the Crimes of Torture Amendment Bill, which is important legislation. It provides for compliance with the Optional Protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New Zealand has actively supported the development of that protocol, which reflects our abhorrence of torture and our commitment to human rights.

The Optional Protocol is aimed at preventing torture, rather than bringing torturers to justice after the event. The bill is not only a measure to ensure that New Zealanders will continue to be protected against torture and other forms of ill-treatment in the future, but it is also a signal to others around the world that torture will not be tolerated and that with the collective efforts of the international community it can be prevented.

I am sure that the select committee dealing with this bill will give it proper consideration, and that the public will be able to make their thoughts heard. I look forward to that happening, and to the bill being reported back to the House.

JOHN HAYES (National—Wairarapa) Link to this

There has been a bit of torture imposed around here this afternoon as I have listened to some colleagues’ speeches, and I suffer every day from far too much tax, and the torture of oppression through that. But that is another issue that I will raise on a different occasion.

First of all, I commend my former colleagues in the Ministry of Foreign Affairs and Trade for producing this book, The United Nations Handbook, which I commend to every member in the Chamber. It comes out every year and it is a bible. If members have not read it, they ought to. On page 202, it sets out issues around the human rights treaty bodies, particularly the United Nations Committee Against Torture. On page 202, we see that the optional protocol has not yet entered into force. As at 18 April 2005 it had 34 signatories, which is not many out of 196 countries.

I also drawpages 331-333, which set out the amount of money that various countries contribute to the operation of the United Nations. The greatest amount is paid by our American friends—22 percent—and Japan is soon after them at 19 percent. Many countries are like China with 2 percent, and New Zealand pays about 0.4 percent.

I have also noted other speakers’ comments about the Hon Phil Goff and his press statement on 24 August 2003 in which he stated: “New Zealand will be among the first countries to sign a United Nations optional protocol against torture … New Zealand has actively supported the development of this protocol, which reflects our abhorrence of torture and our commitment to human rights … The Optional Protocol to the Convention Against Torture is aimed at preventing torture, rather than bringing torturers to justice after the event.”

I commend Phil Goff’s comments, but I have to say that there is a gap between his theatre and the substance. Nevertheless, I support this bill going to the select committee stage. That is what National does, because National is against torture and it deplores such behaviour wherever and whenever it occurs.

I believe New Zealand ratified the International Covenant on Civil and Political Rights, which proscribes torture and other cruel, inhuman, or degrading treatment or punishment. I think New Zealand has also ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. We are complying with international obligation. I will address the background to this optional protocol. My understanding is that back in 1993 our bureaucrats, both here in New Zealand and abroad, decided to look at establishing this optional protocol. They spent 10 years formulating it—10 years of annual meetings in New York. It is pretty good if one is a bureaucrat and likes going to those places. If one comes from a Pacific Island, one likes the allowances one gets. If one comes from New Zealand, one likes the opportunity to go and mix on a global stage. But we are not here to bother about that; we are here to focus on what this convention will do for New Zealand. That will be the focus of its attention in the select committee.

Looking at the process that has been followed here, I draw the House’s attention to the fact that I think it was only in 1996 that treaties such as this were referred to the scrutiny of our political establishment. This work began before then. Phil Goff picked it up, and, because the bureaucrats told him to, he pushed it.

The working-group failed to reach agreement on a draft text for this protocol. The chair then said that he would write one. So after 10 years the chair of the international working party drafted this protocol and it was adopted by a vote. The voting pattern at the United Nations Human Rights Committee showed just how close it was—29 States voted for it, 10 voted against it, and 14 abstained. What I am saying here is that the process that has led to the document we are discussing today was not a good one.

I also think that if we are going to pass it, then we need to look at what it will do for us. First of all, it will ensure adequate recognition of the primary role of democratically elected Governments. I think it is Governments that take on human rights obligations and are responsible for fulfilling them. I do not think it is the role of a non-Government organisation to tell us about our human rights.

The second concern I will raise when this issue goes to the select committee is the need to make sure that these international committees and their members work within their mandate. In other words, as various other speakers have said today, we do not want these committees engaged in activities outside their focus.

The third point is whether this bill will duplicate conditions that already exist. My fourth concern is the need to address how the international committee would be resourced. At the back of the UN handbook we see that the human rights area collects something like US$64 million a year as a budget to employ its international bureaucrats. Those are some of my concerns about this bill, and I have no doubt that they will be picked up in the select committee.

Moving beyond the theoretical to the practical, if this Chamber were to do some work on reviewing what the United Nations actually does, it would discover that a special rapporteur on torture had been to China and provided a report in Beijing on 2 December 2005. I raise this because I see in my in-tray this week an invitation to a luncheon hosted by the Prime Minister for a high-ranking visiting Chinese dignitary.

I will read now directly from the rapporteur’s report. It states: “The Special Rapporteur recalls that over the last several years his predecessors have received a significant number of serious allegations related to torture and other forms of ill-treatment in China, which have been submitted to the Government for its comments. These have included a consistent and systemic pattern of torture related to ethnic minorities, particularly Tibetans … political dissidents, human rights defenders, practitioners of Falun Gong, and members of House-church groups. These allegations have been and continue to be documented by international human rights organizations. The methods of torture alleged include, among others: beatings; use of electric shock batons; cigarette burns: hooding/blindfolding; guard-instructed or permitted beatings by fellow prisoners; use of handcuffs or ankle fetters for extended periods … submersion in pits of water or sewage; exposure to conditions of extreme heat or cold, being forced to maintain uncomfortable positions, such as sitting, squatting, lying down, or standing for long periods of time, sometimes with objects held under arms; deprivation of sleep, food or water; prolonged solitary confinement; denial of medical treatment and medication; hard labour; suspension from overhead fixtures from handcuffs. In several cases … such as the ‘tiger bench’, where one is forced to sit motionless on a tiny stool a few centimetres off the ground; ‘reversing an airplane’, where one is forced to bend over while holding legs straight, feet close together and arms lifted high; or ‘exhausting an eagle’, where one is forced to stand on a tall stool and subjected to beatings until exhaustion.”

Our Prime Minister invites us to dine with these people next week on the one hand, but on the other hand proposes that this House support the optional protocol on torture—which, I can assure the House, will do nothing useful for anybody. While I support taking this bill to the select committee, I am inclined to think that this activity is a total waste of time promoted by bureaucrats for bureaucrats. I am very pleased that the matter has come to the House, because it gives all members an opportunity to address the issues of concern during a select committee process. The protocol gives a permanent standing invitation to a UN committee to visit this country with no permission at all, with no balance between the unrestricted rights of these visitors and appropriate checks to ensure that the power of the UN committee is not abused. We support the referral of the bill to the select committee but we retain an open mind.