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 second time. This bill has been closely examined by the Foreign Affairs, Defence and Trade Committee. I start by sincerely congratulating the committee on its very careful consideration of both the bill and the detailed public submissions on it. I inform the House that the committee’s amendments are supported by the Government, and I genuinely believe they will enhance the effectiveness of the legislation.

The committee received submissions from a number of human rights non-governmental organisations and practitioners, Crown entities with a human rights focus, and a range of other community groups. These submissions represented a range of views about the domestic implementation of international treaties and measures to prevent torture and ill-treatment in places of detention in New Zealand. I was pleased to note that all of the submissions supported this Government’s initiative to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. To have unanimous support in submissions for anything is relatively unusual in this jurisdiction.

This is a significant bill for New Zealand, as it will enable this country to comply with its obligations under the optional protocol. I am pleased to let the House know that the optional protocol entered into force on 22 June this year, after gaining the requisite number of ratifications. The optional protocol is the culmination of over two decades of work by the United Nations and others, and it establishes a unique monitoring system for preventing torture and ill-treatment in places of detention.

The bill enables New Zealand to comply with the optional protocol. Upon the enactment of the protocol, New Zealand will be in a position to ratify it. The bill is another illustration of this Government’s leadership in international human rights, and affirms New Zealand as a country that is committed to ensuring that the worst human rights abuses are prevented wherever they are found around the world.

The optional protocol provides for a two-tiered approach to the prevention of torture, and the bill gives effect to that approach. The first tier is the international visiting body—a subcommittee of the United Nations Committee against Torture. The bill enables the subcommittee to visit places of detention in New Zealand and exercise its powers and functions as set out in the optional protocol. The second tier consists of a system of regular visits undertaken by national bodies to places of detention. Those bodies are called national preventive mechanisms. New Zealand already has the requisite independent visiting bodies such as the Ombudsman and the Police Complaints Authority. Those existing bodies enable compliance with the optional protocol in a cost-effective manner. The nominated institutions have been identified because they already possess the capability to inspect and monitor the treatment of persons detained in New Zealand.

I now turn to the committee’s recommended amendments. As noted earlier, the Government supports all of the committee’s recommendations. As I said, I am confident that the amendments will improve the operation and functionality of the legislation. The amendments generally serve to clarify the provisions in the bill as introduced, and some of them are of a technical nature. There are also some amendments of substance that I will briefly address.

The committee has recommended that the bill make it clear that domestic institutions appointed as national preventive mechanisms carry out existing powers and functions when acting under this bill. This will ensure that these institutions enjoy the full array of their powers when acting to prevent torture under the bill. The committee has also recommended that a new clause be inserted into the bill that provides national preventive mechanisms with the same protections, privileges, and immunities that they enjoy in relation to the exercise of their powers and functions under other legislation. This is an important amendment because it will ensure, in accordance with the optional protocol, that national preventive mechanisms are able to exercise their powers in a fearless manner to prevent torture.

An improvement to the reporting requirements of the national preventive mechanisms has also been proposed by the committee. The amendment requires national preventive mechanisms that are officers of Parliament to report directly to the House of Representatives instead of to the responsible Minister. This change, of course, preserves the constitutional status of officers of Parliament, such as the Ombudsman. I think this move is highly desirable.

The committee has further recommended that other national preventive mechanisms continue to report to the responsible Minister, but it has added a requirement that the Minister must present a copy of that report to the House of Representatives. This amendment will, I believe, ensure dialogue between the national preventive mechanisms, the executive, and Parliament, and will result in greater accountability throughout the reporting process whilst maintaining consistency with the existing reporting requirements. This amendment is a significant improvement to the arrangements as proposed in the original bill.

The committee has recommended that the confidentiality provisions in the bill be amended to expressly provide that information about an identifiable individual cannot be disclosed without that person’s express consent. I commend this change because it will ensure that appropriate protection is provided to personal information. Again, that is desirable.

In conclusion, I again thank all of the members of the Foreign Affairs, Defence and Trade Committee for making valuable contributions that have resulted in useful improvements to this bill. This process is a good example of the value of constructive select committee engagement. As I reach the end of my remarks, I again thank all the people who took the time and effort to make submissions to the committee. I think they, too, contributed to the improvement of this bill.

The bill is an illustration of New Zealand’s strong and ongoing commitment to the protection and promotion of international human rights. This bill provides an example to all countries of how to ensure compliance with the optional protocol, with the goal of preventing torture. I commend the Crimes of Torture Amendment Bill to the House.

Hon GEORGINA TE HEUHEU (National) Link to this

I am pleased to take a call on the second reading of the Crimes of Torture Amendment Bill. In June 1987 the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force. An optional protocol was added, known as the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by a vote in the United Nations General Assembly on 18 December 2002 and signed by New Zealand on 24 September 2003. This bill implements the optional protocol to that convention, and of course it is no surprise that New Zealand was foremost among those countries involved in the development of the protocol in the first place, and among the group of countries that are foremost in designing bills to implement the provisions of the protocol.

The protocol 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, inhuman, or degrading treatment or punishment. These things, I suppose, seem somewhat strange to us, sitting as we do in a wonderful country like New Zealand, a great little democracy, where the rule of law is observed. Generally speaking we have provisions in the law already to ensure that New Zealanders, or those people who are detained in certain places in our country, are generally accommodated or catered for.

The bill’s three key provisions establish a subcommittee of the existing United Nations Committee against Torture to regularly visit places where people are deprived of their liberty, and to make recommendations to the Government concerning the protection of such persons. A provision also enables the subcommittee to exercise New Zealand’s functions and powers as set out in the protocol. The subcommittee is permitted to visit any place under the Crown’s jurisdiction, and to have unrestricted access to such information as is necessary for the proper performance of its functions.

At the second level, as the Minister has already traversed, the protocol requires each State party or Government to have, at the domestic level, at least one visiting body for the prevention of torture, and the functions of that body, known as the national preventive mechanism, are basically set out to examine the conditions of detention applying to those detainees in places of detention. The body is also required to provide at least a written report to the Minister of Justice each year on the exercise of its functions. The third level sets up the central national preventive mechanism, with accompanying responsibilities.

As I said earlier in this discussion, what we are doing here tonight is extremely important, obviously, and National supports the ratification of the protocol. It is proper that as a democracy observing the rule of law, we implement the provisions. We need to remind ourselves that we have an enviable record on human rights, because it is not the case in a number of other States and countries in the world. We are a leader in human rights, and as a colleague of mine, Dr Richard Worth, said in the first reading regarding the issues relating to the right not to be tortured, that right is “one of the core, non-derivable human rights”, and it is therefore of the highest priority.

Just before I go to some of the points that National members made in the first reading, I tell members that the Minister has traversed the changes that were recommended in the Foreign Affairs, Defence and Trade Committee. It is helpful, obviously, that submissions to the committee were in favour of the bill. As the Minister said, there were a number of submissions. Basically we considered a wide range of issues, including the general implementation of the protocol; the role, competence, and independence of national preventive mechanisms; and ministerial discretion to appoint national preventive mechanisms.

Just in relation to that last issue, I tell members there was some concern amongst submitters that national preventive mechanisms are not designated or established by this bill—I am sure our colleague from the Green Party will have a comment to make on that—they are appointed by the Minister. The majority of the committee, however, are confident that the national preventive mechanisms measures contained in the bill are consistent with the optional protocol, which does not require those mechanisms to be appointed by statute. We do recommend, though, in line with developments since the protocol was introduced, that a new section be amended to provide that the Minister designate national preventive mechanisms no later than 1 year after the optional protocol is ratified by New Zealand.

The other important point that was also referred to by the Minister concerns the reporting requirements. The committee looked at those requirements, which have been improved to ensure greater accountability and transparency. That is important, especially to a democracy like ours. As I indicated earlier, our country is foremost in human rights. We have taken steps of our own accord to make sure that the kinds of abuses that are seen in other places around the world are certainly never going to be seen in our country. The optional protocol, and the bill that we now bring forward to implement it, sets that as a certainty.

My colleague Richard Worth, together with Simon Power in the first reading, made some comments that I think are worth repeating. The first was around the fact that National was concerned—and we still remain concerned—that United Nations committees, from our point of view in looking at them from a distance and from our democratic position, do not always seem to focus on the most pressing of human rights violations. We would hate to see any UN bureaucracy set up in New Zealand when perhaps resources, such as they might be—and perhaps my colleague Tim Groser will have something to say about that—might dictate that the main focus of such a committee should be on those countries and States in the world where matters of torture and cruelty to people in places of detention really do exist. As I say, New Zealand is a leader on human rights, and although the committee is entitled to come here when it wants, I would like to think that proper focus is put where it is absolutely needed.

In closing, I tell the House it is proper that New Zealand ratifies the protocol. We, along with other like-minded nations, act as a role model. The persuasive element in our signing up to the protocol is very important, and that we do so acts as a beacon for those countries who do not observe human rights and such protocols. It is the kind of standard that we, as a democratic nation in the international community, expect for all citizens of the international community.

DIANNE YATES (Labour) Link to this

I just remind people that we are talking about the Crimes of Torture Amendment Bill and the report back on it from the Foreign Affairs, Defence and Trade Committee. The introduction to the commentary on the bill states: “The Crimes of Torture Amendment Bill confirms New Zealand’s commitment to the protection and promotion of fundamental human rights by providing a regime that enables New Zealand to comply with its obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” As the Minister has said, this optional protocol entered into force on 22 June 2006.

I thank the select committee for the work it has done on this bill. The bill has gone through the usual treaty-making process, whereby it was referred to the Foreign Affairs, Defence and Trade Committee, which has the authority then to defer those treaties that are not relevant to it to other select committees. In this case, the treaty was totally within the ambit of the Foreign Affairs, Defence and Trade Committee and was dealt with by that committee.

The committee worked very, very well, and I thank the member opposite for the comments she has just made. Because we in New Zealand become part of this optional protocol, because we are a democratic country, and because, hopefully, we will not experience cruel, inhuman, or degrading treatment or punishment in our country, let us not fool ourselves that those things will not continue to happen in the world. But as a member opposite said, we are, by signing up to this agreement, setting an example and making it clear to other countries that this is how the matter should be dealt with; also that those countries that are democratic, open, and transparent, deplore such treatment of citizens of any other country, or of New Zealand citizens should they be in any other country. I think those points made by the member opposite were particularly relevant. It is also important in that they show how our committee has worked together. I do not think anyone in New Zealand would agree that torture and other cruel and degrading treatment is acceptable.

We also want to thank the 23 submitters on the bill who were concerned about the national preventive mechanisms. They wanted to make sure that the processes we have in New Zealand conform not only with the schedules to the bill but also with New Zealand protocols—that they are transparent so we have national preventive mechanisms and inspection processes that are transparent. Where appropriate, as has been mentioned by the Minister, the people involved should report to Parliament, should that be part of their normal processes, or otherwise to the Minister, and their reports should all be tabled in Parliament. It should be transparent and open. That was one thing the submitters agreed on and pointed out to the committee, and their views were taken on board.

I point out that the national preventive mechanisms are dealt with in a generalised way within the bill and that there are powers of the Minister within that. But the Green member wanted the organisations to be specifically mentioned in the bill. There are difficulties with that, of course, because organisations can change. We did not want to have to come back and change the legislation if an organisation ceased to exist or was no longer functioning in that particular way. So the committee as a whole thought that the clauses around the national preventive mechanisms, as we adjusted them, were adequate and would serve the purpose.

There was some discussion about the health and disability services, and the committee asked questions about whether the national preventive mechanism should come under the Health and Disability Commissioner. It was agreed that it should be with the Office of the Ombudsmen and that the Ombudsman’s reporting processes should continue as at present. Those were matters that the select committee looked at in a fairly detailed way in order to come up with its final conclusions.

As we have said, there were discussions about visits by the national preventive mechanisms, and the Minister has pointed out that we were also especially concerned about the definition of a place of detention. We wanted to know, too, that a place of detention—and I thank the member opposite who has just spoken, because she was the person who asked about this and had the matter clarified—refers to both public and private facilities, whether we should have both in New Zealand, whether a place of detention in New Zealand is not only one that is within New Zealand territory but also one that is under the jurisdiction of New Zealand, and that the latter, whether public or private, would be open for inspection by the national preventive mechanism people. That was clarified, and it was an example of a select committee working together to bring about the ratification to allow New Zealand to join in with this treaty.

As I said, this was one of the areas where we parliamentarians in New Zealand were in agreement. It was, perhaps, one of the easiest treaties we have had to deal with, because, as I have said before, I do not think anyone in New Zealand thinks torture is a good idea. We dealt with how the select committee goes about the processes, the processes within New Zealand, and the protocols on how we treat people in prisons, police cells, and within medical institutions. It is always good for a country such as ours to examine its own processes, because we often make assumptions that New Zealand is almost above other countries in what we do—and it is that, because we are constantly vigilant. We constantly look at ourselves in the light of international benchmarks, and this process has been one way of us doing that.

Some of the submissions were on areas not covered by the bill, such as around health and other issues, but they are matters we constantly have to look at within a democracy. Democracies do not just exist; they have to be carefully maintained and monitored. We have to constantly make sure that we are transparent, that our processes are transparent, and that our public institutions are transparent.

Once again, I thank the select committee for the hard work that has gone into this bill and into other treaty-making processes. It is good to have on our select committee people who have experience not only as politicians but also in terms of negotiating such treaties, and who know in more detail how they come about through the actual processes. Once again, a big thank you to everyone who has been involved. We look forward to the smooth passage of this legislation through the House.

JOHN HAYES (National—Wairarapa) Link to this

Mr Deputy Speaker—

KEITH LOCKE (Green) Link to this

The Green Party will be supporting the Crimes of Torture Amendment Bill. It is important in order to prevent torture that there are proper, independent inspection regimes in all detention facilities in New Zealand, as specified in the optional protocol of the convention against torture, which this legislation will allow us to ratify.

The biggest debate around this bill has been about how to make the inspection bodies—the national preventive mechanisms and the central preventive mechanism—truly independent of the State. It is disappointing to the Green Party that a critical element of independence from the Government—that is, from the executive branch—is not contained in this bill. Members may notice that in the report back from the Foreign Affairs, Defence and Trade Committee there are some minority comments from myself, as the Green member on the committee, in that respect.

We were concerned that the Minister, a member of the executive branch of Government, has the power to designate the national preventive mechanisms and the central preventive mechanism, and, if and when he or she wishes, to revoke those designations. That is not true independence. If we refer to the submission from the Human Rights Foundation to the select committee, we see that the foundation refers to the Paris principles that govern national human rights institutions. The Human Rights Foundation says that national institutions that are not set up completely independently will not be accepted as national human rights institutions—be they institutions in the Asia Pacific Forum of National Human Rights Institutions or elsewhere. In terms of those criteria, the granting of the right of the executive to get rid of those institutions cuts them out from being truly independent.

In order to have true independence, the Greens say it is a requirement that designating and revoking be done by Parliament, not by the executive. I think it is easy enough to achieve that, and the Green Party will move an amendment in the Committee stage of the bill to, firstly, remove the right of the Minister to designate those mechanisms and to revoke them and, secondly, to give Parliament that right by listing the mechanisms in this particular bill.

Already, some of the potential national preventive mechanisms are listed in the bill—that is, an Ombudsman, the Police Complaints Authority, and the Children’s Commissioner—and it is clearly envisaged, from the discussions around this bill, that we will be able to add to those the Judge Advocate General, because he or she is clearly envisaged to be the national preventive mechanism for the Defence Force. There may of course be changes, as referred to by the previous speaker, in those mechanisms. For example, the Police Complaints Authority may give way to an improved, independent police complaints authority if the bill currently before Parliament is proceeded with. But it is easy enough, if there is a legislative change to the Police Complaints Authority—because there can be an amending clause—to change the title of the national preventive mechanism for the police in this legislation, the Crimes of Torture Amendment Act, as it will be at that time.

There is certainly no practical reason why we should not give Parliament, rather than the executive, full control over the designation, and the revocation of designation, of preventive mechanisms. I think there is a good reason for us here in New Zealand, as people in a strong democracy, to set a good example to the world in terms of the full independence of these mechanisms from the executive branch of Government. We are setting an example to other countries that have signed the optional protocol where the executive arm is much more overbearing than it is here, where there is less real democracy and less real recognition of human rights than there are here, and where dissidents have been mistreated in custody, either currently or in the recent past. I speak of countries like Azerbaijan, Cambodia, and Turkey, which have signed the optional protocol. I think we need to set an example in the upholding of what I mentioned before—the Paris principles—in terms of the independence of human rights institutions such as the preventive mechanisms.

The Human Rights Foundation’s submission outlines the Paris principles as being the legal independence and operational autonomy of the institution. We see that in our Human Rights Commission here in New Zealand and in the independence in the process of appointing members to bodies like that. There should be staffing autonomy—that is, the institution should be able to appoint its staff free of executive interference—and financial autonomy, which is improved if there is a relationship to Parliament rather than to the executive branch. That is the case with some of the human rights mechanisms such as the Office of the Ombudsmen.

I will now go over the powers granted to the national preventive mechanisms. One of the important ones is the right of access to any facility of detention. The bill, quite rightly, states in section 27 of new Part 2, added by clause 6—as amended by the select committee—that these mechanisms have the right “to examine, at regular intervals and at any other times the National Preventive Mechanism may decide,—”. I think that is important, because as we have seen, particularly overseas, if some warning is given of an impending visit from the Red Cross, or whoever else it might be, the repressive regime that controls a detention institution will move out those prisoners who may complain that they have been tortured, or it will threaten prisoners well in advance of the visit, so that they are too intimidated to say anything critical to the visiting party. Although it is the task of these preventive mechanisms to deal not with individual complaints in terms of their rectification but rather with systemic abuse, free access at any time is important in order for the national preventive mechanisms to achieve that.

We see an access problem even in one of the longer-standing democracies in the world that some people look up to—the United States, which has its congressional elections tomorrow. In terms of its Guantanamo Bay facility, it has prevented access from independent UN bodies. So we can see the importance of insisting on access. Of course, as part of the bill’s provisions, it is required that the Government or the people who control detention facilities give the preventive mechanisms all the information on the number of detainees, the conditions, and so on. Those who control the facilities are not allowed to hide anything.

Another important provision is that there be a full power of open recommendation from the national preventive mechanisms. Under this legislation, any report given to the Government must simultaneously be given to Parliament and must be made public in short order. That is so nothing can be hidden. There is a right to issue recommendations and an obligation to try to rectify the situation and to report to the subcommittee on the convention against torture so it can take action if necessary, as it did in relation to the torture engaged in under the behavioural management regime in our prisons. In that case a High Court judge granted five of those prisoners $130,000 in compensation. The UN Committee against Torture was condemnatory of that regime and asked the Government to inform it as to what it was doing in respect of the cruel and degrading treatment that had taken place in those prisons.

We are not immune from problems to do with torture. It has taken place in New Zealand, as the UN Committee against Torture verified. So I think it is important that we implement the provisions of the optional protocol.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Deputy Speaker. Tēnā tātou katoa i te Whare. The reality of people who have suffered the fate of systematic and brutal murder, slaughter, human rights abuse, physical and mental oppression, dispossession, and extermination—the crimes of torture—is readily available through reading the histories of colonisation. In fact, in my maiden speech to this House I referred to the crime of torture enacted amongst the people of Te Whakatōhea in the mid-1860s, following the murder of the missionary Carl Sylvius Völkner. This House will recall that Völkner had been implicated in the passing on of information to Governor Grey about the movements of Māori in the New Zealand Wars. In the weeks after his death, British troops stormed Ōpōtiki and captured four Māori, including an esteemed chief of Whakatōhea, Mokomoko. The four men were arrested, condemned, and executed for the murder of Völkner. Not satisfied with these four deaths, the Government also mounted a harsh assault on Whakatōhea, confiscating their best arable land, destroying their shipping and stores. The basis of an effective economy was ruined.

Mokomoko had always denied his involvement and, indeed, was supported by the legal and historical research that followed. A grave miscarriage of justice occurred. Over a century later his whānau were able to exhume his remains from Mount Eden jail so they could be buried in his ancestral urupā. In June 1992 the descendants of Mokomoko were finally granted a full acquittal for him. His words at the scaffold, read in song, were remembered: “Violent shaking will not rouse me from my sleep. They treat me like a common thief. It is true that I embrace eternal sleep, for that is the lot of a man condemned to die.”

The condemnation that we bring to this House today against torture is undeniably influenced by experiences such as these. We come to this bill remembering the plea of Mokomoko not to have to die for a crime he did not commit. It is ironic that when we stand in this House in support of the optional protocol adopted by the UN General Assembly it is often implied that we are opposed to the use of torture and other cruel, inhuman, or degrading treatments or punishments in far-off places, when scrutiny of our own situation might be very revealing. The use of execution, the application of the death penalty as a punishment for murder, was inherited along with other common law from England in 1893, alongside hard labour, flogging, and whipping. My research tells me that from 1842 until 1961, 54 people—one woman amongst them—were put to death in Aotearoa. The last person to be executed was Walter Bolton, who was hanged at Mount Eden Prison on 18 February 1957 for the murder of his wife. Today the stone walls and towers of Mount Eden Prison remind anyone who visits there of our own shameful history of human rights abuses. Our public libraries also contain records of executions that were free entertainment for a morbid crowd that would congregate above the Mount Eden stockade to witness the events.

Other legacies remain. There are 11 graves at Mount Eden Prison that forever remind prisoners of the tragic history of execution. Just over a decade ago, between 1991 and 1999, another 11 lives were lost—11 of 13 teenagers committed suicide in Mount Eden prison in that period. The question was asked at the time whether the actions of the past had ever been reconciled or whether that legacy remains as long as Mount Eden Prison stands.

I understand that the report on New Zealand prepared by the United Nations Committee against Torture in June 2004 expressed concern at the fact that juveniles are sometimes not separated from adult detainees and have been detained in cells owing to the shortage of Child, Youth and Family Services facilities. The hideous culture of Mount Eden Prison is clearly inappropriate if our young people are driven to suicide in adult prisons. The recent tragic death of Liam Ashley points to the pressing need to address the issue of juvenile safety raised by the United Nations Committee against Torture.

The committee’s report also expressed concern about the significant decrease in the proportion of asylum seekers who are immediately released, without restriction, into the community upon arrival, and the detention of several asylum seekers in remand prisons who are not separated from other detainees. This week marks 2 years of such detention for Thomas Yadegary, an Iranian who has been imprisoned without charge or trial in Auckland’s Mount Eden Prison. Thomas has lived in Aotearoa since 1993, and applied for refugee status. His application was declined. On 1 November 2004 he was taken into custody at Mount Eden Prison to await deportation. The Government has exerted pressure on Thomas to sign an agreement absolving the Minister of Corrections from any responsibility in the likelihood that Thomas is arrested, tortured, or killed on his return to Iran. Thomas has refused to do so, and, in effect, he remains a hostage in prison.

Last month Global Peace and Justice Auckland released a statement: “Thomas’ continuing incarceration is a travesty of natural justice and a disgraceful abuse of human rights. We have our own little Guantanamo Bay right here in the heart of Mount Eden.”

The Māori Party stands in this House to argue for consistency in the application of our human rights to restore our international reputation through compliance with international law. Yet, here under our very own eyes, is another incident where a person has been deprived of liberty, seemingly violating the human rights conventions in a way we are so quick to condemn in other countries. We all want to believe that the criminal justice system is reliable, fair, and infallible. Unfortunately there is a huge discrepancy between what we may wish to believe, and fact.

The UN committee also expressed a considerable concern about prolonged periods of solitary confinement, and the findings of the Ombudsman regarding investigations of alleged assaults by prison staff on inmates—in particular, the reluctance to address such allegations promptly, and the quality, impartiality, and credibility of investigations. The Māori Party has consistently raised our own concerns about these problems, and supports the focus that will come from increased monitoring by the United Nations of our prisons. This can only enhance the confidence of the public, and demonstrate transparency, if the United Nations subcommittee can provide rigorous advice that we will listen to.

Finally, the Māori Party, of course, wants to ensure that the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is applied not just at home but across the globe. No one in this House can deny the facts of the United Nations investigation into the treatment of prisoners at the US naval base at Guantanamo Bay, which revealed that it was effectively a torture camp where prisoners had no access to justice. The final report of the investigation undertaken by five UN experts accused the United States of practices that amount to torture, and demands that detainees either be allowed a fair trial or released. We were told that torture was a daily occurrence at the prison camp for terrorist suspects—suspects accused of having links to Afghanistan’s ousted Taliban regime, or to al-Qaeda. Yet in this prison camp that is rife with terrorists, only a handful have been charged. The United Nations has shown the world that a prison exists outside normal international standards of justice. It is a prison where 490 men have been held for absolutely nothing; a prison that the UN Secretary-General Kofi Annan demanded must be shut down.

Mokomoko’s dying words were: “Tangohia mai te taura i taku kakī, kia waiata au i taku waiata.”—take the rope from my throat that I may sing my song. With this bill we hope that others may note that the rope should be taken from the throat of those in Guantanamo Bay, those seeking asylum in Aotearoa, and our own youth in prison on remand. We hope that the song that will be sung will be one of a justice system aimed at preventing crime before it occurs, wherever possible, and that is supporting people who are affected by crime. Whether it is murder, slaughter, or dispossession through the gallows, cannon, sword, legislation, or a prison camp is irrelevant in defining torture, or cruel, inhuman, or degrading treatment or punishment. The key point is that we must continue to vigorously oppose all human rights abuses. We must condemn all acts of torture and we must build hope in restoring our international reputation as a land that values human rights and due access to justice. Kia ora tātou.

RON MARK (NZ First) Link to this

Well, is it not interesting; from listening to that speech from the Māori Party one would think that its members are the upholders of peace, justice, and human rights in this Parliament. I remind the honourable member that sometimes it helps if one comes to this House and speaks from the heart, from the shoulder, and from a depth of understanding of the issues, as opposed to standing up and reading a speech from a pre-prepared script. Something that the Māori Party members are becoming legendary for and known for is turning up to the House and speaking from a pre-prepared script written for them by some staffer back in the office, or maybe by their own hand. The fact is that if those members stand in this House and read from a pre-prepared script written for them, they need to remember that they will be adjudged on the sincerity of the arguments they put according to that. I know, as I travel around the country and attend various marae and meetings with iwi and hapū—and the honourable member Te Ururoa Flavell knows this more than anyone in this House—that most of our great Māori orators, both men and women, speak straight from the shoulder; they speak from the heart. They do not turn up with a written script that they rabbit through.

TIM GROSER (National) Link to this

I rise to support the Crimes of Torture Amendment Bill. The debate has taken quite an interesting turn in the last couple of speeches, and I will come back to the question of my own views on abuses that have occurred in the past and I am sure will, unfortunately, occur in the future. But first of all I will look at the ultimate purpose of this bill, which starts with some type of consideration of its international origins. The international community learnt 60 years ago that the older concept of inhuman practices and human rights abuses being something that were outside the responsibility of the international community led to grave international problems in due course. This has created the bedrock of sentiment from which this optional protocol and a range of other international covenants, protocols, and agreements related to human rights come.

I personally have been a great supporter of multilateral approaches rather than relying on bilateral diplomacy, because I believe that, basically, they are far more effective in the long term. I am not sure whether Mr Ron Mark might have been a member of a parliamentary team that, when I was ambassador to Indonesia, went to Dili, but I went to Dili many years ago to represent New Zealand when East Timor was still under Indonesian control. Pursuant to my instructions from the Minister—and it was a National Government of the day—after 3 days, I think, looking around the place in Dili, I remember going to see one of the senior military people. I said to him, quite bluntly, that I thought what was going on there was just outrageous. He said to me, “Setuju” in Indonesian, meaning, basically, “I agree”.

I ask what better response one could have had about how completely hopeless it was, in the sense that all that would be recorded was a note in a file without any real consequential action. I think that the whole concept of concerted international pressure through multilateral diplomacy, which is what we are discussing tonight, is in the long term by far the best way to achieve what is really a work in progress, because this is a long-term process. Societies such as ours—and I note that we have just listened to the very interesting speaker from the Māori Party—did not arrive at the same standards of human rights observance overnight. It has taken us a long passage of time to get to where we are, and it will take many years for many countries to achieve what we would regard as even halfway reasonable standards. So I believe that there is a huge role here for international diplomacy.

I see that this optional protocol derives very directly from the original Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2, which is set out in schedule 1 of the bill, puts the focus firmly on a cooperative relationship, if you like, between the international process on the one hand and the State that is a party to the convention on the other. That is the only way it can be. One cannot go from one extreme of saying that what happens within one’s borders is entirely one’s internal affairs, then lurch towards the other extreme of believing that the international community can simply ignore the governing authority. So there is a balance to be achieved between the two processes, and that is the foundation of the original political logic behind the convention.

Clearly, after 20 years of experience, members of the international community that are very active in the human rights arena, such as New Zealand, have reached a conclusion that further measures are required to make this convention more operationally effective—hence this optional protocol. The basic concepts of the protocol are very consistent with the original 1984 convention. It is, first of all, an issue of partnership—that issue of the international community working in conjunction with the State authorities. The protocol has an emphasis on prevention, and that is what the whole debate the House has had tonight over the incomprehensible term “national preventive mechanisms” is really all about. There is a very strong focus on the scope of this legislation being anything that is part of the territory of the party signing the optional protocol. So there is a strong level of consistency between the original convention and the optional protocol.

The committee has worked very hard on the over 20 submissions it received from a very active part of our community—and a very essential part of our democracy that exists here—just on the domestic implications. It was always going to be thus; after all, the purpose of the protocol is to establish within each of the parties that wish to take up the obligations of the protocol preventive mechanisms—in our case, within New Zealand—specific to the various places at which the possibility, at least, of cruel or inhuman treatment might arise. I accept that purpose, but I expressed several times during the select committee process, and I will repeat tonight, a certain air of unreality at times during the discussion. I was sitting there during the debate, and these very well-intentioned people—I would include the parliamentarians from all the parties on the committee—were looking in minute-detail terms at the national preventive mechanisms that would apply in different situations in New Zealand. I thought to myself: I just hope the good folk in Myanmar and Sudan are attaching the same degree of care to their analysis. I accept the logic of it, but that is the thought that keeps going through my mind. Of course, I have particularly in my head the Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rudolfo Stavenhagen, on His Mission to New Zealand. Members will recall that amongst the spectacular idiocies of that report, which was certainly condemned by the National Party and Labour at the time, was the recommendation, after a mere 10 days of study in New Zealand, that we should introduce MMP at the local government level. There were also a series of extremely loosely informed opinions in the report.

At the end of the day, although the focus is necessarily domestic rather than international, I say that, frankly, this is not the main game. The main game is to enable us to sign this optional protocol in order to put us in a respectable position, which this amendment most certainly will, but to focus the real work of the committee yet to be established—whose terms of reference, criteria, and visiting cards have yet to be published—on the really bad guys. That is not to deny that in the past there have certainly been abuses of power by officials in this country over people who have been deprived of their liberty for whatever good—one hopes—reason, and we have just heard a very vigorous discussion between two members on this point. I regret to say that I am sure such abuses will continue in some form in the future—I hope they are few and far between. My point is very simple: I do not think we need the United Nations to help us sort this out. The normal democratic process and freedom of the press that we have in this country will eventually correct these most unfortunate lapses from what is otherwise a highly respectable record in this country.

My basic message tonight would be the same as it was during the select committee process. I fully support the bill. It is a sensible approach. We have the requisite level of independence attached to each future national preventive mechanism—whichever one is chosen by the Government of the day—and there is flexibility in that procedure. But the real focus of New Zealand should in fact be on the really bad guys. There are appalling human rights abuses. There is torture of the most incredible type taking place in country after country, not just in the two spectacular examples I mentioned of Darfur and Myanmar but in some other countries that for reasons of diplomatic protocol I do not care to mention in our Parliament. That is where the focus of our officials in New York should be. So, yes, people should make the usual speeches in the plenary about how the New Zealand authorities have discharged their responsibilities in a very effective way. But I ask the New Zealand officials who will be, in practice, at the sharp end of New Zealand’s efforts whether they could focus on the real problem facing the world on this issue.

JILL PETTIS (Labour) Link to this

It seems remarkable that in a country such as ours, which is a peaceful and effective democracy—and members in this House have only ever lived in peacetime—we should be discussing a bill such as the Crimes of Torture Amendment Bill. But given the world in which we live, and given that we are a responsible member of the international community, I am pleased this bill is a reflection of New Zealand’s steadfast commitment to human rights, and of this nation’s abhorrence of torture.

I agree with what the previous speaker said, and of course we believe that the emphasis should be on the “bad guys”, but somebody has to commence a protocol before international pressure can be brought to bear. New Zealand has led many forms of international pressure that have brought about positive, democratic change in countries that had not experienced democracy—one person, one vote. With the support of New Zealand and other, kindred countries, such positive moves have often occurred. I am proud to have been involved in the select committee process, because it showed that New Zealand is continuing to provide leadership in important matters of international human rights. As I said before, this country was one of the first nations in the world to sign up to the optional protocol to the convention against torture, which was ratified on 22 June this year.

I want to touch briefly on an aspect that has not been covered by any other member this evening. It concerns the national preventive mechanism for health and disability services, because this is an important and, sometimes, sensitive area as well. The Foreign Affairs, Defence and Trade Committee recommended that paragraph (d) of the definition of a national preventive mechanism in new section 16—in clause 6—be omitted. We felt that it was not appropriate that “persons designated by the Director-General under section 32 of the Health and Disability Services (Safety Act) 2001 to audit the provision of health care services:” be designated as national preventive mechanisms, because they are concerned with the safety and quality of health and disability services, rather than with human rights issues. The committee felt that for the purposes of health care, people may be legally detained in hospitals or care facilities, or subject to supervised care in the community, for reasons of their own or for public safety.

Accordingly, the committee felt it was important to designate an appropriate institution as a national preventive mechanism for health and disability services. It considered whether the Health and Disability Commissioner could be designated as a national preventive mechanism for monitoring the treatment of persons detained in health and disability facilities. The role of a national preventive mechanism is broadly consistent with the commissioner’s statutory mandate to promote and protect the rights of health and disability service consumers. However, for the commissioner to take on the role of a national preventive mechanism, the commissioner’s role would need to be extended to include powers of inspection and investigation. This would be, in effect, a significant extension, and would confuse the commissioner’s role as an advocate for patients’ rights. The committee also considered that the Office of the Ombudsmen should be designated as the national preventive mechanism in respect of persons detained in health and disability facilities.

One of the other aspects of the bill that is interesting concerns frequency of visits. The committee recommended that new section 27(a), in clause 6, be amended to read: “to examine, at regular intervals and at any other times the National Preventive Mechanism may decide,—”. The frequency and, perhaps, the irregularity of those visits will be key in ensuring that the proper conditions continue to prevail in a whole range of institutions.

As has been said earlier, the protocol establishes an international inspection team. Its visits will be important, as I have just alluded to, because they will act as a deterrent. The team will also be able to provide advice to local authorities. We know only too well that ill-treatment often stems from poor monitoring regimes. Regular inspections must take place in those countries that we have concerns about, such as the Sudan, where tragic incidents are occurring in Darfur, and Myanmar. That is the only way that New Zealand, as a member of the international community, will be able to help bring about more positive change.

I was disappointed to hear John Hayes’ comments. Mr Hayes sat on the committee that considered this bill. I thought it was a pity he did not ask the committee the same questions that he raised tonight. It reminds me of that saying: “It is no good being a hero without an audience.” Well, sometimes the hard questions have to be asked when there is not an audience, and I think it might have been more constructive if those questions had been asked while the officials and experts were in front of the committee, rather than his asking rhetorical questions on the debating floor of the House.

The mechanisms in this bill for reporting to Parliament have now been increased, and that can only be seen as a positive. I enjoyed participating in the committee’s consideration of this bill. As the chair of the committee, Dianne Yates, commented, it was a positive debate, and we always appreciate that manner of debate in the committee.