Crimes of Torture Amendment Bill

Dr RICHARD WORTH (National) Link to this

The Crimes of Torture Amendment Bill is in two parts. National supports the passage of this legislation and has done so from the outset. It is to be seen that Part 2 deals with amendments to a number of Acts, and the particular legislation that I wish to deal with, in what I hope will be a series of multiple calls, is the Crimes of Torture Act 1989. That is the principal Act to which the Crimes of Torture Amendment Bill is, of course, an amendment.

The Crimes of Torture Act 1989 has been with us for some time. It is simple legislation that had, as its principal purpose, the implementation not of the optional protocol but of the substantive Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New Zealand entered an important reservation to that convention, and that reservation was in respect of compensation. So the Government of New Zealand, in an expressed reservation, 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 now, of course, are dealing in the amendment bill with the optional protocol, and although New Zealand has signed the optional protocol to the convention, it has not yet ratified it. We see here a working out of constitutional principle—that international conventions are not incorporated into domestic law, in the absence of relevant statutory implementation.

In these calls I want to deal with an issue that directly arises under Part 2 and has been called the “ticking bomb” and the “licence to torture”, because it raises very directly the very troublesome possibility of whether the State has a right to torture. Suppose a bomb has been placed in a crowded building, and the State has custody of someone who knows where that bomb is. The bomb is set to go off in, say, 2 hours. It is impossible to get the people out. What should be done? That issue—the so-called ticking bomb scenario—is a thought experiment that has been used in the debate over whether torture can ever be justified in the war on terrorism.

It is a scenario that was first painted by a German sociologist called Luhmann, who mooted the scenario in the early 1990s. It has been picked up on as a possible justification for torture by no lesser a person than Alan Dershowitz, a prominent American defence attorney, who surprised some observers by giving limited support to the idea that torture could be justified. We have seen, recently, that FBI interrogators decided to withdraw from all participation in the interrogations conducted on detainees at Guantanamo Bay in Cuba, because some of the techniques being used would preclude any possibility of the detainees being tried in a US court of law.

It raises hugely difficult, philosophical issues, which I would suggest are best avoided. Because, what happens if the customary methods of torture do not work? Those customary methods probably would be, sacking, tying someone into painful positions, sleep deprivation, shaking, enclosure in a cupboard where one cannot stretch out, and blasting with loud music. If the person does not succumb to those particular methods of torture, is it permissible to beat him? And if that does not help, is it appropriate to apply electricity, to rip out his fingernails, or to crush his testicles? If we accept the ticking-bomb scenario as an argument justifying torture, then we can find, I believe, no principle at all to limit the extent and degree of the torture it justifies. That is why it is appropriate that this legislation, which National supports, be passed. I note, in Part 2, that amendments to a range of statutes are required to more perfectly implement the optional protocol. That is all I wish to say.

KEITH LOCKE (Green) Link to this

Following on from Richard Worth’s arguments, I think it is important that we have an absolute principle against any endorsement of torture. That principle—that cruel and degrading punishment is simply not allowed—is contained in the optional protocol and in the international convention itself that the protocol was added to.

The ticking bomb scenario can be given no credence in law, in practice, or anything else, because if we start to justify torture in any sense whatsoever, we become as bad as the terrorists, or whoever the bad people are whom we are fighting: we have lowered the standard of treatment, we have reduced the humanity in the processes of the State, and we have become, in effect, like the people we are claiming to fight.

In practical terms, the ticking bomb scenario falls down because we could always argue the case of the ticking bomb in order to engage in torture, then say that, oh, the bomb was not ticking but we thought it was. We could imagine that scenario, particularly in the many countries that this protocol is directed at—countries where there is systematic torture by the State. We need just to read the Amnesty International reports to see that to leave any chink in the international legal armour allows dozens of countries to engage in torture because, they say, they are dealing with a ticking bomb scenario. It is not the road to follow at all.

Part 2 amends several Acts, including the Ombudsmen Act and the Crimes of Torture Act 1989, and my amendments were directed to adding more clarity. For example, rather than leaving it up to the Minister to appoint the national preventive mechanisms in terms of the inspection of New Zealand’s places of detention of all types, that process has to be independent of the State. That is contained in the Paris principles. It is clear that if the executive is left with the power to appoint an inspection mechanism, in many countries that means there is not proper independent inspection. We have to set a model in the international arena in that regard, which is why my amendments said that Parliament should do that.

My amendment to clause 16 meant that this legislation would list the national preventive mechanisms: the Ombudsmen, the Police Complaints Authority, the Human Rights Commission, the Office of the Children’s Commissioner, and the Judge Advocate General. They would be specified in legislation, and the central national preventive mechanism would be the Human Rights Commission, which, although it is not in the bill at present, everyone says would be the central national preventive mechanism reporting to the subcommittee of the United Nations Committee against Torture.

People raised practical arguments. They said it would be a pain to change legislatively the national preventive mechanism if, for example, the Police Complaints Authority evolved into an Independent Police Complaints Authority, or something different—and we do have a discussion of an Independent Police Complaints Authority on the Order Paper at the moment. To me it would be easy, if there were a change to the Police Complaints Authority, just to have a provision, like those in Part 2, amending the Crimes of Torture Act so that the nature of the national preventive mechanism designated to cover the police could be changed by a simple amendment in the new legislation.

I do not think that practically there is any problem with abiding by the idea that Parliament should determine these inspection mechanisms, and that the executive should be out of the picture. There is a reporting procedure to the Minister. It is good that the bill states that national preventive mechanism reports must be tabled in Parliament and made public immediately, so there is an open reporting procedure. That accords with the international principles for inspection mechanisms. But I am quite disappointed that in spite of all the submissions to the Foreign Affairs, Defence and Trade Committee about these inspection mechanisms having complete independence from the executive, Parliament has not gone along with my amendments. It would be very straightforward to do so. Thank you.

CHRISTOPHER FINLAYSON (National) Link to this

I want to raise just a couple of matters about Part 2, which as both Dr Worth and Mr Locke have said, deals with a number of consequential amendments to other legislation. I would be very interested to learn from the Minister in the chair, the Hon Clayton Cosgrove, who has a well-deserved reputation for having a deep knowledge of public international law, whether he could answer just a couple of questions. But first, I want to go through the various provisions in the bill that get to the questions I will ask.

New section 26 in clause 6 deals with the designation of national preventive mechanisms. In accordance with article 17 of the optional protocol, the Minister must, not less than 1 year after the optional protocol is ratified by New Zealand, designate the number of national preventive mechanisms that the Minister considers necessary. That deals with the part of the optional protocol—I think it is article 17—that places an obligation on New Zealand, once ratification has occurred, to maintain, designate, or establish, at the latest 1 year after the entry into force of the optional protocol, one or several independent national preventive mechanisms for the prevention of torture at the domestic level.

Then I come to Part 2, because as one can see quite a few consequential amendments are required to other Acts. The amendments are to the Corrections Act, the Health and Disability Services (Safety) Act, the Intellectual Disability (Compulsory Care and Rehabilitation) Act, the Mental Health (Compulsory Assessment and Treatment) Act, and to the Ombudsmen Act 1975 and the Police Complaints Authority Act 1988. Those are the ones that I focus on.

I would be interested to know, if the Minister could take a call, just how many national preventive mechanisms, once all these changes have been put in place, the Government is considering appointing. I would have thought that at the end of the day, rather than to have a plethora of national preventive mechanisms, it would be much better to have one or two. Indeed, I think a case could be made for having one specialist authority. I am interested in that because, as so often happens with legislation these days, the amendment bill is far longer than the Crimes of Torture Act itself. I can understand why that is. Some care has to be taken when one is establishing the new regime, consequent upon our ratification of the protocol, with regard to the provision for subcommittees to visit New Zealand and the establishment of national preventive mechanisms. I am interested to know whether the Government has given any thought to the number of mechanisms New Zealand is supposed to need after this bill becomes an Act.

DIANNE YATES (Labour) Link to this

I wanted to speak in the Committee stage of the Crimes of Torture Amendment Bill and to thank the previous speakers and the members of the Foreign Affairs, Defence and Trade Committee who worked on the bill.

As Mr Locke has correctly said, the select committee did look at the issues around national preventive mechanisms and, as he has already said, felt that it was not necessary to name them in the substantive legislation, as it was felt that some flexibility was needed in terms of possible changes. The other things that the select committee did were to continue the designation of the Ombudsmen in the health and disabilities services area, and to ensure that the reporting mechanisms were described in the bill so that those organisations that report to the House would do so and those that report to the Minister would be included under new section 27 in clause 6.

So I want to thank those who have been involved with this bill. I thank Mr Locke for his amendments. The committee did consider them, and although members conceded that he did make some points, they felt it was not necessary to include those in the bill as a whole.

Dr RICHARD WORTH (National) Link to this

We come to the closing stages of debate in the Committee stage of the Crimes of Torture Amendment Bill. It is important legislation in the context of the stance that New Zealand takes in the international arena. This legislation amends principal legislation that has been in place since 1989.

It is a curious feature of this bill, in my view, that it has two conventions attached to it. In schedule 1 it has the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In schedule 2 it has the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. One would have thought that the principal Act would have the primary convention scheduled to it. That was possibly an oversight, because of the constitutional principle that to implement international law there must be a domestic statute. On the face of it the Crimes of Torture Act 1989 makes it clear that it is all about seeking to implement the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In another call I have taken in connection with this legislation, which National supports, I spoke about what is called the ticking time bomb scenario, and the work of Alan Dershowitz, an American defence attorney and jurist. He has argued that there should be limited support for the idea that torture could be justified. His proposition, in very broad terms, is that if a State is to sanction torture, there should be a regulated procedure through which an interrogator could request what he calls a torture warrant, and that requiring a warrant would establish a paper trail of accountability so that torturers and those who authorise torture could be held to account for excesses. Dershowitz’s torture warrants are similar to search warrants and phone tap warrants, and would spell out the limits on the techniques that interrogators might use and the extent to which they might abridge a suspect’s rights. Fortunately New Zealand will have no part of such proposals.

So we see in the Crimes of Torture Amendment Bill the completion of the circle with the implementation into domestic law of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New Zealand, of course, has signed that optional protocol; it did that on 24 September 2003. The next diplomatic step that needs to be taken is that of ratification. The passage of this legislation will permit that diplomatic step to be taken. When we look at the principal Act, which is to be amended, we see that there is, of course, a definition of torture in it. There is also a definition of torture in the principal convention. They are not in exact alignment, but I would say that, for practical purposes, the alignment is sufficient.

The bill itself did undergo some changes when it was considered by the Foreign Affairs, Defence and Trade Committee, and it was recommended that it be passed with a number of amendments, which have been identified. The bill does not go as far as the Green member of Parliament Mr Locke would wish. No doubt that is a sadness for him, but it is certainly a blessing for the Committee, because in his particular proposals there was not seen to be any redeeming merit that would justify the far-reaching and radical changes that he proposed.

The concept—the structure—of the legislation is simple enough. It contemplates that there be visits by a subcommittee, and the setting up of national preventive mechanisms and a central national preventive mechanism. One might think that we would not need such legislation in New Zealand. Assuredly, I hope that that is so. We have other offences on our statute book that deal with the type of event here described. But I think what is illustrated in the passage of this legislation is New Zealand’s readiness to play the role of an international citizen and to set a lead for legislation to be implemented in accordance with our international law obligations. National members support the passage of this law.