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 third time. This bill will enable New Zealand to ratify the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The optional protocol entered into force in June 2006, and the first meeting of the State parties is scheduled for 18 December this year.

This process marks another key milestone for the protection and promotion of human rights at the international level. It is a process in which New Zealand has played a crucial role, and a role of which it can generally be very proud. New Zealand is among good company in taking the lead in respect of the optional protocol. For example, the United Kingdom, Sweden, Spain, and Denmark have already ratified the optional protocol.

The protocol establishes a system of regular visits to places of detention. Visits will be conducted by both international and New Zealand experts. The visits are designed to prevent the occurrence of torture, by providing objective assessments and enabling a dialogue to take place between visiting experts and the State. The bill will substantially bolster New Zealand’s already impressive system of monitoring places of detention. New Zealand inspection bodies under the bill will have a strong mandate to monitor and make recommendations in respect of the treatment of detainees. These bodies will also enjoy appropriate immunities, to ensure that they are able to conduct visits in an effective manner, without fear or interference.

The focus upon prevention represents an innovative development within the United Nations human rights system. Because of its far-reaching physical and also psychological effects, the harm inflicted by torture on the victim can often not be undone. Therefore, prevention is of primary importance. The optional protocol provides for a cooperative approach to preventing torture and ill treatment, based on transparency and the implementation of relevant legal norms.

This preventive approach has been very successful in Europe. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has operated for a number of years. Most would agree that it has had a positive effect throughout the European continent in improving conditions of detention and in helping to prevent ill treatment.

The optional protocol is, therefore, different from some other United Nations mechanisms that have a reactive focus to addressing human rights concerns. Further, 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 national bodies. This aims to ensure the implementation of international standards at the local level.

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 further complements this existing framework, and provides concrete steps aimed at preventing crimes of torture from occurring. The bill itself provides for a regime that enables New Zealand to comply with its obligations under the optional protocol. It includes provisions that enable the United Nations subcommittee to visit places where people are deprived of their liberty in New Zealand, that allow the designation of one or more New Zealand bodies—as national preventive mechanisms—also to examine places of detention, and that allow the designation of a central national preventive mechanism to coordinate the activities of the New Zealand monitoring bodies and, of course, to liaise with the UN subcommittee.

The bill reflects a carefully tailored balance between legislative and administrative compliance. It provides the core framework for the optional protocol to be complied with in New Zealand, while ensuring that members of the executive must also take responsibility to ensure that the optional protocol is given effect. Key reporting requirements are also included to ensure transparency and accountability.

This bill is an illustration of New Zealand’s strong commitment to the protection and promotion of international human rights. Most important, the bill is an example to all countries of how to ensure compliance with the optional protocol, with the goal of preventing torture. The bill not only is a measure to ensure that New Zealanders will continue to be protected against torture and other forms of ill treatment in the future but also is a strong signal to others around the world that torture must not, and will not, be tolerated, and that with the collective efforts of the international community it can be prevented.

I again extend my thanks to the members of the Foreign Affairs, Defence and Trade Committee for their diligent and constructive consideration of the bill during both the parliamentary treaty examination process and the inquiry into the bill itself. I further extend my appreciation to members of the House who have supported this bill to date. I believe it has been a positive display of the New Zealand Parliament acting in a cohesive way to fight the global scourge that is torture.

This Government is committed to ensuring that New Zealand continues to be a world-class nation in the development of human rights law. This bill is a clear illustration of that commitment. I am confident that the bill will ensure that for generations of New Zealanders, now and in the future, torture will remain a remote concept and something this country continues to treat with disdain. Accordingly, I commend this bill to the House.

TIM GROSER (National) Link to this

National supports the Crimes of Torture Amendment Bill. We played a very active part in listening to submitters, who have themselves been very active in the process leading up to this amendment bill. The bill reflects the fact that multilateral disciplines on human rights have been a very important cross-party policy over decades. The issues dealt with in this amendment bill are very much in that tradition.

The key point of this amendment bill relates to article 2 of schedule 1: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” We can derive from that the key principles at stake there. The first is the issue of partnership. That is not just about international pressure but about the international community trying, over time, to work with governing States, which is the only way we will get gradual progress on this issue in the areas of the world where it remains a serious problem.

The second key feature that we can derive from article 2 is the focus on prevention; we have already heard a number of comments from Minister Mark Burton on that. The third feature is the very broad scope of the agreement. It covers any territory under the State’s jurisdiction. The optional protocol, which we are addressing here, obviously reflects the fact that after 20 years of experience with the core convention, we have learnt that it needs to be beefed up in certain ways. Basically, it needs to make the original provisions operationally effective, and that is why there is such a strong focus on prevention.

Coming from where we have come, politically, in New Zealand, we have long forgotten these issues. But they were very much a part of the early political culture of the United Kingdom, from where most New Zealanders of European ethnic descent come. Like many other New Zealand parents over generations, I took my children to the Tower of London and, of course, they wanted to see the torture chambers. They are now a great tourist attraction. There are many other torture chambers in the great castles of the United Kingdom that, equally, are centrepieces for tourists.

If one cares to reflect on that, it is a reminder of a couple of things. First of all, those torture chambers originally served a deadly political purpose; they were not conceived of as tourist assets when they were put together. Secondly—and this is the key point—I doubt that there is a single culture or a single country that has not had human rights abuses of the most extreme nature as part of its evolutionary political process. There would not be any culture that was immune to that. If we extend the analogy further, one can just imagine, for example, in respect of the Tower of London, how King James I might have reacted in 1605 to a visit of the UN subcommittee on the prevention of torture and other forms of degrading punishment. If members think that that is far-fetched, I would argue that exactly that dynamic is in place in areas like Darfur or countries like Myanmar. We are dealing with exactly that dynamic in the early part of the 21st century, and we must expect progress to be slow and evolutionary in the process.

Obviously, the definition that I read out shows a wide scope in terms of the areas where people can be subjected to risk of degrading or inhuman treatment, if not of torture in its most extreme forms. It was natural during the process of putting this bill together, and in the select committee process, that all the focus was on the national preventive mechanisms—or NPMs, as they are called—in the context of New Zealand society and the various institutions of the State of New Zealand. I have said before that although this was necessarily the case, I think that a good job has been done on this bill in identifying, by a right and flexible approach, the different national preventive mechanisms that need to be established—and in some cases strengthened—in New Zealand to ensure that people in our places of detention are not subjected to improper treatment.

But although the focus of the process was entirely “New Zealand - centric”, for me, and perhaps for other members of the select committee, there was a certain air of unreality about this whole process. We were concerned, frankly, that this convention focuses on what I have called at various times, colloquially, the real bad guys. But given the way that the UN system works, the nice per diems available for international travel, and the way things are done in the reality of international diplomacy, I am sure that at some stage New Zealand will be visited by the subcommittee. I do not want that to happen, but I am very sure the subcommittee will come here, and when it does it will essentially be wasting its time.

I do not quite know what it is that they will be investigating. Somebody in a prison might have been given a cold hamburger, which some civil liberties lawyer has thought, perhaps, to be inhuman treatment, or perhaps the underfloor heating in one of our prisons has gone on the blink in the middle of July and, in spite of 2 weeks’ efforts to the contrary, it is claimed that nothing has been done about it. So we will probably hear extreme stories of this nature—

RON MARK (NZ First) Link to this

It is really quite interesting. I sat up in my office listening to the Minister the Hon Mark Burton’s introductory speech. There has been much debate on this bill over the last few weeks. It is interesting because, at first glance, one can be forgiven for taking a similar view to Tim Groser, the member who has just resumed his seat. That view is that there is nothing in the Crimes of Torture Amendment Bill that really pertains to New Zealand other than feel-good policy and feel-good implementation of some international protocol that a bunch of back roomers have dreamt up in the United Nations corridors—and God knows those corridors are full of a lot of people who dream up wonderful ideas and expect the rest of the world to toe in behind them.

I guess they spend many hours sipping their martinis, their sherries, and their chardonnays and congratulate each other on the reams and reams of paper that they fill up with ink and the numbers of forests they fell in order to come up with such agreements. They probably spend months haggling over the exact wording of one sentence and then rejoice and celebrate the fact that nations all around the world such as New Zealand are moving, by legislation, to ratify those agreements.

It is wonderful, and as a former military man—forgive me—when I first saw this bill I thought to myself it was an interesting notion. If one caught an al-Qaeda terrorist in Afghanistan and politely asked him to give the address of Osama bin Laden, I guess, according to this legislation, he would gleefully hand over the address. He would need no encouragement other than a polite request to get him to accede to the demands or requests and give, without the need for any form of duress or intimidation, all the information needed to round up terrorists and would-be killers, and mass murderers of that type. A part of me says that is fanciful, it is interesting, it will not really affect the lives of New Zealanders, and it does not pertain to New Zealand at all, except for one extraordinarily uncharacteristic blot on our record.

I am holding in my hand the report for the State Services Commissioner into the Department of Corrections’ Canterbury emergency response unit. Has any member seen this big, thick, huge document? It is a document produced by Ailsa Duffy QC on 16 December 2004. I remind the House that much as we like to congratulate ourselves on being a civil society and a society and a nation that touts itself around the world as complying 100 percent with all the human rights legislation and protocols that the United Nations likes to churn out in this area, when it comes to the way we treated people in our own prison in Canterbury, this country and, notably, this Government failed. It did not fail on its own.

It was interesting to hear the Minister Mr Burton give such a wonderful speech recognising and reaffirming the rights of prisoners who are detained by the State to be treated humanely and fairly. But this huge, thick report, which took me, and New Zealand First, 4 years to get the Government to agree to have completed by means of an investigation, suggests that we are, on occasion, completely the opposite. What is even worse is that the issue was brought to the attention of the relevant Ministers of Correction of the Labour – Alliance or Progressive coalition—they had so many names, I cannot remember which one it was at the time.

The Hon Matt Robson, a notable campaigner of human rights around this country—and, in fact, I saw him in the paper today again prattling on about the human rights of some particular group of people—failed in this area. When I met with Mr Robson in his office for a private one-on-one discussion about the goings-on of the emergency response unit in Canterbury prisons, he did not want to know and he did nothing.

I had discussions with the honourable Tariana Turia the other night. She was—and I said so in a speech—an Associate Minister of Corrections at the time. It is interesting that she now says that it was impossible for her to get the Government to accede to my request for an inquiry into the inappropriate conduct, the inappropriate actions, the abuse of human rights, and the abuse of prisoners and inmates that had being going on in Canterbury’s prison for years.

It is not purely a Labour Government problem; it actually started under National’s term. It is interesting that people like Brian Neeson had the fortitude to stand up and say that an investigation was needed. Then slowly a number of other MPs from the Law and Order Committee stepped up, including Brian Connell. He said that what they were hearing about what was going on down there and the information he was receiving in Rākaia was telling him that something was not right in the kingdom. Despite all the rhetoric from the Government Ministers about respecting human rights and the rights and obligations of a State in terms of the way it treats those people incarcerated in its prisons, precisely the opposite was happening.

Mr Connell had many discussions, as I did, with good men and women of the Department of Corrections—officers who had subsequently, as a result of their blowing the whistle, found their performance reviews suddenly taking a nose dive. They found that their retention in New Zealand’s Department of Correction was suddenly now in question.

I put it on the record here that I am still to this day appalled by this Government’s Ministers of Corrections—and there was a series of them; there were four of them. I ask members not to listen to all the rhetoric but to judge people by what they do, not by what they say. It is wonderful to have Government Ministers and members standing up and saying that they will respect the rights of those people incarcerated and held by us in our prisons, but those words do not match their actions. Their actions were those of a Government in denial. Their actions were those of a Government that did not want to know. Their actions were those of a Government that preferred to put the word of the officials and the departmental managers in the Department of Corrections over and above that of the staff in the prison and over and above that of the inmates who were writing and complaining and explaining their stories.

The summary of findings on pages 1, 2, and 3 of this report just about sums it up. Ailsa Duffy QC stated: “Allegations of inappropriate behaviour came to the attention of the department between late December 1999 and August 2000.” Is that not funny? It took 4 years of political pressure from Opposition benches, led by New Zealand First, and backed by people like Brian Connell, to get the Government to finally agree to appoint a State Services Commissioner to investigate the matter. What did she say? “The Department failed to recognise the wider implications of the complaints certain prisoners made to the Prison Inspectorate and the Ombudsman about inappropriate conduct towards them by the CERU.”

Guess what? To this day no manager has been fired, not one. The men who were in charge of Canterbury’s prisons at that time, Monk, Rushton, and Smith—not one of them has been fired. Let us not forget that a man died. I will say that again. An inmate died at the hands of the “goon squad”. The officer who was involved in the control and restraint who tried to get the team to stop their action and who tried to render assistance to the person still, to this day—a fine, young man—has nightmares of that incident. Sometimes it just annoys the living heck out of me and New Zealand First.

I say to this Government that this wonderful piece of legislation, the Crimes of Torture Amendment Bill, has wonderful words of compassion. It is wonderful to hear that the Government is so concerned about inmates and about the rights of humans who are incarcerated. It is just a shame—just a pity—that it took 4 years of denial, 4 years of inaction, and 4 years of pretending that the very things this bill seeks to stop happened in our prisons, and four consecutive Labour Ministers of Corrections refused to do anything about it. I again pay my respects to Brian Neeson, Brian Connell, and those in the National Party on the Law and Order Committee who came to our aid. But I do point out that all this happened in this country in 1999-2000 during two terms of Government, and two sets of Governments denying that it ever took place. Members should read the report.

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

One does not have to go far in Aotearoa to witness the cruel, inhuman face of torture. Torture—the infliction of severe bodily pain, especially as a punishment or means of coercion—is a breach of the basic, fundamental rights to life that we would defend for all citizens of Aotearoa. The New Zealand Bill of Rights Act specifically includes the right “not to be subjected to torture or cruel treatment.” Yet despite it being in legislation and regulation, our performance to date is far from good.

The Māori Party comes to this House knowing that our national crisis is also the focus of international shame. It is not as if this was the first time the international spotlight has identified our failings as a nation in the upholding of basic human rights. At Mangaroa Prison in 1991 and 1993, abuse and injustices of such magnitude were recorded that they were subsequently reported to the United Nations committees for human rights and torture. The reports revealed that some of our prisoners, New Zealand prisoners, were held naked in outdoor yards overnight and denied medical attention for injuries including bruising, black eyes, and cracked ribs. A later ministerial inquiry found that the prison used informal squads of guards known as “designated hitters” to restrain and beat inmates in a series of systematic beatings. Eventually 12 guards were sacked and the Government issued a formal apology to the prisoners involved. There was a disturbing implication that because the crimes these inmates had committed were so grotesque, the behaviour of the prison guards was seen as almost acceptable. Such experiences indicate how vulnerable the state of democracy is in Aotearoa.

It was as a direct consequence of the ghastly events at Mangaroa Prison that the 1998 report of the United Nations Committee against Torture on New Zealand stated: “The committee considers it important to strengthen the supervision of the prisons to prevent the misuse and abuse of power by prison personnel.” That is paragraph 177 of that report. How could it come to be that in the very same year, 1998, the Pāremoremo behaviour management regime was set up? That unit provoked nine inmates to eventually turn to the High Court, taking their case against treatment that they described as constituting psychological torture, and that included their being kept in inhumane conditions. The prisoners described being held, as punishment, for too long in small, windowless cells in solitary confinement—some for a period of up to 2 years. The cells lacked adequate ventilation and natural light. The inmates were forbidden to exercise outside. How could it be that the recommendations from the United Nations Committee against Torture were breached to such an extent?

But it gets worse—and Ron Mark has referred to this. One year later, another unit was set up in a Canterbury prison, supposedly to tackle crime in prisons. The unit, infamously labelled the “goon squad”, was scrapped in 2000 following the death of a prisoner while being moved by the unit, and amidst claims that its unorthodox methods intimidated both inmates and other officers.

What sort of system do we have operating in our so-called “corrections” department, when year after year it is its own misadministration that needs correcting? How could it be that the behaviour management regime and the “goon squad” were set up after the 1998 report, which explicitly directed New Zealand to “prevent the misuse and abuse of power by prison personnel”? Was it ignorance, arrogance, or simply a case of “didn’t care”?

Other concerns raised by the United Nations Committee against Torture have been about some aspects of youth justice in New Zealand, including children being held in police cells, the mixing of young prisoners with adult prisoners, and the low age of criminal responsibility. Yet New Zealand had already sought to make a reservation to article 37(c) of the United Nations Convention on the Rights of the Child about mixing young people with adults in prison. What this meant in practice was that at the end of 2002 there were 99 children under 17 years of age in prison custody. Eight of the boys were mixed with adults, and all 13 girls under 18 remained mixed with adult women.

I have to ask what sort of experience we are looking for for our young children, if we actually go out of our way, by introducing a reservation to the convention, to enable young people to cohabit with adults in prisons. Māori Party members do, of course, support the intervention that the Minister of Corrections made just 2 months ago, following the tragic death of a young prisoner in transit, to ensure prisoners aged under 18 are always kept separate from adults while being transported. But the crunch issue remains that the mixing of young people with adults remains a central problem in our prisons. The Māori Party supports the intention of this bill, in that it will raise the heat on the need for transparency and greater public scrutiny of practices such as this. We are particularly supportive of the opportunity for greater monitoring of institutions where people are deprived of liberty, and specially in the case of young people.

In my research into this bill I looked through the accounts from the working group on youth justice, which consulted 40 young people throughout 2002 and 2003 who had been deprived of their liberty and held in prison or specialist Department of Child, Youth and Family Services facilities. The experience of the children deprived of their liberty included lack of access to whānau, youth workers, and support staff; lack of information about their basic rights in the justice system; lack of safety in prison, including receiving intimidatory threats and stand-over tactics from other young people; lack of opportunity for educational support, and restrictive obstacles created by tuition fees; lack of access to mental health care support or physical health care—long waiting lists, harassment, and delays were frequently cited—and few, if any, cultural or social opportunities being available. In fact, to my horror I learnt that young prisoners had been prohibited from speaking, chanting, or singing in te reo Māori. As a result of these interviews, the working group on youth justice concluded that slow progress was being made in meeting the needs of young people deprived of liberties. Slow progress—that is an oxymoron if ever I heard one.

The shame of woeful compliance with international conventions is not a new occurrence in this nation. In March of this year the United Nations special rapporteur reported on the association of human rights abuses in relation to the indigenous people of Aotearoa. His report states that the Māori ancestral land base has been appropriated by a variety of historical processes, including voluntary sale, fraudulent purchase, and confiscation or alienation of land through legislative subterfuge. The special rapporteur concluded that the inherent rights of Māori were not constitutionally recognised, and identified that “underlying institutional and structural discrimination that Maori have long suffered” were still being inadequately addressed.

To our great disgrace as a nation, there has not yet been any sort of response that can serve to restore honour to the name of Aotearoa. Despite our great disillusionment with a Government that discredits the United Nations in the way that has been done regarding the report of Professor Stavenhagen, the Māori Party will not deny the opportunity for the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to be received. We are hopeful that the Government will this time take seriously the urgent need to eliminate cruel, degrading, or inhuman forms of treatment or punishment. We are hopeful that by the time of the next report by the committee against torture, the events and crisis state of our corrections system will have been addressed in a way that is meaningful and sustainable, and involves all parties. We must have hope. To not do so would be to admit the situation is hopeless, and we will never ever concede that.

JOHN HAYES (National—Wairarapa) Link to this

I would like to share the hope expressed by my colleague from the Māori Party, but I have some bad news for him. In the two books that I am holding up, one of 596 pages and the other of 471 pages, we have the New Zealand Consolidated Treaty List. The first list was compiled in 1948, and the second in December 1996. There has been no record of treaties since then, and I bet the member a dollar that he would not know the name of one treaty in these books. As for the people on the Government benches opposite me, I do not think they would know the names of very many of them, either. The fact is we do not know, as a country, what we have signed up to. It is not just a question of signing up to treaties; we have to take each treaty and turn it into domestic law, in order to do something with it. That is what we are engaged in doing here tonight with this Crimes of Torture Amendment Bill.

But I say to my colleague that this legislation is simply a make-work scheme for New Zealand bureaucrats and international bureaucrats. It will not make an iota of difference to any New Zealander, and I regret that. I have been sitting here, reflecting on what people have been saying and thinking about my transition to this debate from having spent a couple of days in my electorate with real people who have real problems, such as underfunded schools, police stations that are not working, and hospital waiting lists that are not running properly. There is problem after problem. Then I find this House engaged in dealing with this issue tonight, and essentially wasting its time.

However, I have lived in countries like Iran and Saudi Arabia, and I have seen what Governments do to their people. In that sense I was thinking about the chameleon in the New Zealand First Party, who came into this House wearing a pink tie. I think he supports the Labour Government tonight. He sounds eloquent because he has spent a lot of time on the back bench, making speeches in this House. He has never moved past the back bench. But, then, we would not really expect that from a former sergeant in the service of the Sultan of Oman—a man who is a dictator. We learn about all the problems in New Zealand, but the former sergeant who was in the service of the Sultan of Oman worked for a dictator who practised torture in the form of whacking off someone’s right hand, perhaps, for theft, without an anaesthetic. Worse still, on a Friday afternoon if someone had transgressed—a man might have had a relationship with a member of the opposite sex that he should not have had—boy, it was off with his head. Or, in the case of a woman, she would probably be stoned to death in a pit.