RESPONSE TO QUESTIONS 1 to 16: Minister Simon Power

Human Rights Committee Response to list of issues to be taken up in connection with the consideration of the Fifth Periodic Report of New Zealand (CCPR/C/NZL/5)

New York, 15 March 2010

RESPONSE TO QUESTIONS 1 to 16: Minister Simon Power

Mr Chair, you have in front of you the response to the list of issues that the Committee raised in relation to New Zealand's fifth periodic report under the Covenant. 

The first three questions from the Committee relate to New Zealand's constitutional arrangements.  New Zealand's previous periodic reports outline the constitutional and legal framework within which the Covenant is implemented, as well as other measures that exist to give effect to the provisions in the Covenant. 

Within New Zealand's constitutional structure, successive Governments have worked steadily to create and maintain a human rights environment that enables our people to reach their individual and collective potential regardless of characteristics such as race, gender, disability, and religion. 

New Zealand has implemented the Covenant in a range of ways, including through the New Zealand Bill of Rights Act 1990. 

The Bill of Rights Act itself gives effect to human rights protections at each of the three stages of actions by the New Zealand Government.

First, all policy and legislative proposals must be considered for consistency with the Act and with our international human rights obligations.

Second, all legislation is reviewed for consistency with the Act both formally, in the reporting and advisory role of the Attorney-General, and less formally by Parliamentarians, governmental and non-governmental human rights advocates and members of the public through Parliamentary committee procedures.

Third, the exercise of governmental powers is subject to scrutiny under the Act and under international human rights obligations. Except where there is clear contrary authorisation, actions of the executive government that are inconsistent with human rights protections can be overturned through the courts, the Human Rights Review Tribunal and other independent bodies.

Focussing on the legislative process, the Attorney-General is required to bring to the attention of the House of Representatives any Bill that, in his or her opinion, appears to be inconsistent with the Bill of Rights Act. 

Since 1990, the Attorney-General has reported 49 Bills to the House of Representatives (including five Bills in the past year). 

However, it is for Parliament then to determine whether proposed legislation limits a particular right or freedom and whether that limit is justified.  Attorney-General opinions are regularly cited in Parliamentary debate and in public submissions before Parliamentary committee hearings.

New Zealand law follows the principle that, wherever possible, legislation is to be interpreted consistently with the Covenant and our other international obligations. 

Where certain Covenant rights have not been directly included in the Bill of Rights Act, they have been given effect by other legislation and by common law.  One example of this is the Privacy Act 1993, together with the common law tort of privacy, which give effect to Article 17 of the Covenant. 

One issue raised in the shadow reports was the fact that New Zealand does not have a formal mechanism for increasing awareness of the Covenant. 

Mr Chair, the Bill of Rights Act provides for the provision of advice to Parliamentarians on the consistency with rights affirmed in that Act. 

New Zealand upholds the principle of separation of powers.  To guarantee the independence and impartiality of the judiciary, the Government does not provide training to the judiciary.  Instead, this is provided by the Institute of Professional Legal Studies, which is the professional development arm of the New Zealand judiciary itself.  The current curriculum offered by the Institute provides for consideration of domestic human rights legislation - such as the Bill of Rights Act - and international human rights instruments.

The judiciary has frequent recourse to the Covenant, which has been cited in more than 150 decisions of the superior courts, and to the Bill of Rights Act, which has been referred to in more than 2,500 decisions over the past decade.

We acknowledge that the Bill of Rights does not represent supreme law, or contain a formal remedies clause. 

Nevertheless, to afford victims of violations of the Covenant with a remedy in accordance with Article 2, the New Zealand courts have established a number of judicial remedies. 

These include monetary compensation, stays of prosecution and exclusion of evidence. 

While the New Zealand courts have yet to determine that they can issue formal declarations that legislation is inconsistent with the rights and freedoms contained in the Bill of Rights Act, the Supreme Court has affirmed the practice of the courts to informally ‘indicate' the existence of such legislative inconsistencies.

There is no formal mechanism to respond to statements made by the courts that legislation is inconsistent with human rights.  However, where such comments are made by the courts, the Government takes these very seriously. 

For example, in the Hansen Case in 2007, the majority of the Supreme Court indicated that section 6(6) of the Misuse of Drugs Act 1975 was inconsistent with the presumption of innocence under section 25(c) of the Bill of Rights Act.  This provision creates a rebuttable presumption that a person possessing a certain amount of prohibited drugs does so for the purposes of supply and sale. 

Relying on this judgment the Attorney-General advised Parliament that the new Misuse of Drugs (Classification of BZP) Amendment Bill was also inconsistent with the presumption of innocence.  That Bill extended the scope of the Act to a new drug. 

The Government also included the consistency of the presumption in the terms of reference for a review of the Misuse of Drugs Act by the New Zealand Law Commission. 

Since New Zealand submitted its written response in December, the Law Commission has released an issues paper on the control and regulation of drugs. 

The paper discusses the difficulties in enforcing offences relating to supply.  The Commission has suggested options for addressing the problems of proof that the presumption seeks to remedy, while respecting the presumption of innocence.

Mr Chair, I do not propose to discuss the Government's response at this stage.  The Law Commission has called for public submissions by 30 April of this year.  The Government will have the opportunity to respond when the Commission releases its final report.  However, I have indicated that this work is not a priority for the Government.

Turning to the Committee's views in the EB case, New Zealand has formally advised that it does not agree with the Committee's assessment that undue delay occurred in that case. As noted in its response to the Committee, the delays in that case reflected its exceptional complexity and sensitivity and the paramount importance accorded by New Zealand legislation to the safety and wellbeing of children.

Nevertheless, we acknowledge that the efficiency of the Family Court system can be improved.  In response to the Committee's decision, the Government has taken concrete steps to accelerate Family Court procedures, including promotion of less adversarial hearings. 

The Ministry of Justice is currently undertaking a case-flow analysis of the Family Court.  That analysis tracks individual cases through the Court process in order to identify delays and the reasons for these. The Family Court Rules Committee are in the process of amending the Family Court Rules to allow judges to make decisions earlier in proceedings where counsel fails to take agreed steps or fails to appear.

In the advance questions, the Committee asked about the compatibility of the Prisoners' and Victims' Claims Act 2005 with Article 2 of the Covenant.  We acknowledge these concerns, and those put forward by the shadow reports. 

However, this Act does not preclude an award of compensation where that is appropriate. 

Any deduction of amounts from the compensation for payment to victims of crime and others is still consistent with the right to an effective remedy.  Any delay in payment is limited only to what is reasonably necessary to enable a victim to seek civil redress for damages suffered as a result of the prisoner's offending.

The New Zealand Action Plan on Human Rights was developed by New Zealand's Human Rights Commission in 2005.  The Plan relied on an assessment by the Commission of the current status of human rights based on an analysis of law, policy, research and consultation with public, non-governmental organisations and government agencies. 

In July 2007, given the wide range of recommendations, and the scale of factors that departments needed to consider, the Government directed agencies to consider this Action Plan as part of their normal business. 

Departments are expected to respond to requests from the Commission for relevant information and to identify work meeting the Action Plan priorities in official documents. 

As I discussed in my opening remarks, the Commission has conducted a mid-term review of progress under the Action Plan.  While acknowledging that challenges still remain to fully realise human rights for everyone in New Zealand, the review was largely positive. 

The Commission confirmed that there have been substantial initiatives in almost all areas identified as priorities in the Plan. Examples of achievements include:

• action to reduce poverty including increases in the minimum wage;


• actions to reduce violence against children and young people, including the replacement of section 59 of the Crimes Act (which I will discuss later);


• introduction of paid parental leave;


• ratification of the Convention on the Rights of Persons with Disabilities;


• recognition of New Zealand Sign Language as an official language;


• ratification of the Optional Protocol to the Convention Against Torture; and


• greater recognition of the right to equality of gay, lesbian, bisexual and transgender people including under the Civil Union Act 2005.

I now turn to the Committee's attention to New Zealand's counter-terrorism measures and respect for Covenant guarantees discussed in questions 7 and 8 of the Committee's list of issues.

During the reporting period, anti-terrorism measures were strengthened to meet international counter-terrorism obligations and to protect people in New Zealand.  The purpose of the Terrorism Suppression Amendment Act 2007 is to ensure New Zealand's compliance with its obligations under the UN Security Council Resolutions 1267 and 1373. 

Under the Amendment Act, individuals and entities on the UN terrorist list are automatically designated as terrorist entities under New Zealand law. 

The Act also contains a framework for New Zealand to make its own terrorist designations.  Decisions are made by the Prime Minister against statutory criteria and are open to review by the courts. 

Since our written response to the list of issues, on 10 February 2010 New Zealand designated four groups not found on the UN 1267 list as terrorist entities.

The groups are Somalia-based Al Shabaab, ETA in Spain, PKK in Turkey, and FARC in Colombia.

In making the designations, the Government concluded that there is good reason to believe that each of these four groups has engaged in a range of terrorist acts, including the indiscriminate killing of civilians and assassination of political leaders, and have been similarly designated by a number of other countries under their own national procedures.

Shadow reports have expressed concern that the automatic designation of individuals or organisations when listed by the UN Sanctions Committee is inconsistent with procedural fairness.  We emphasise that under the UN Charter, New Zealand is obliged to give effect to mandatory resolutions adopted by the UN Security Council.

We also recognise that protecting sensitive information while maintaining fair procedures can be difficult.  Our legislation strikes a fair balance, particularly through judicial oversight of New Zealand's own designations. 

The Terrorism Suppression Act provides for a three yearly review by the Prime Minister of non-UN list designations. 

The Prime Minister is then required to report to Parliament's Intelligence and Security Committee on the renewal of any such designation.  All such decisions are also subject to judicial review.

Mr Chair, the Committee also enquired about "Operation Eight" in light of Articles 2, 4 and 26. 

The written response to the advance questions summarises the events of Operation Eight and the proceedings that resulted.  As those proceedings are ongoing it would be inappropriate of me to make any further specific comment. 

We do, however, acknowledge that various shadow reports have voiced their criticism of "Operation Eight". Those criticisms will be considered through the range of court and other processes that are now in train.

Questions of compliance by the Police with human rights safeguards will be determined both in the prosecution of serious criminal charges laid as a result of the Operation Eight investigation and in the civil claims and complaints by those aggrieved by the actions of the Police.   

The actions of the Police have also been subject of claims to two independent official bodies, namely, the Independent Police Conduct Authority, and the Human Rights Commission. 

The Government has also engaged with complaints made to three United Nations special rapporteurs.  The simple point, in this regard, is that all of these systems for addressing complaints are working as intended.

Less formally, and noting comments in shadow reports over the effect of "Operation Eight" on Māori, the Police have shown a strong dedication to mitigate any negative or disproportionate effects felt by the affected community. 

The Commissioner of Police, the highest ranking officer of the New Zealand Police, has engaged personally with the community in the aftermath of the investigation

We are committed to engaging in good faith with all of these procedures.  Lessons have been learnt, and will continue to be learnt. 

I would now like to discuss the principle of non-discrimination which relates to Articles 2 and 26 of the Covenant.  During the reporting period Parliament enacted the Foreshore and Seabed Act 2004. 

This Act was the subject of criticism from the Committee for the Elimination of Racial Discrimination.  The various shadow reports have also outlined their concerns.

The current Act has been the subject of much debate in New Zealand, and the present Government has agreed, as part of its confidence and supply agreement with the Māori Party, to review the legislation - and that is presently being undertaken.  That review has been commended by the Human Rights Commission and others.  The Government has announced that it is likely that the Act will be repealed, but no decisions have been made about what will replace it. 

On the issue of the protection of immigrants and asylum seekers, a number of institutions in New Zealand have responsibility to advocate and promote respect for the rights of immigrants, asylum-seekers and refugees.  Chief among these is the Office of Ethnic Affairs, which was established in 2001. 

Some examples of the work of that office include:

• The development and dissemination of the "Ethnic Perspectives in Public Policy" tool for government policy makers to increase the Government's responsiveness to the needs of ethnic communities.


• The management of Language Line; a free telephone interpreting service offering accuracy and confidentiality to people who speak little or no English and their service providers.

The Government has implemented various measures to support newcomers to settle and integrate into New Zealand society.  This Settlement Strategy and its accompanying Settlement Plan of Action is a whole of New Zealand approach, and includes initiatives at both the national and regional level. 

I would now like to direct the Committee's attention to the issues surrounding gender equality, violence against women and political rights in New Zealand.

Recent statistics show that women continue to be under-represented at senior levels of the both the public and private sector.  At present New Zealand does not have targets to improve the representation of women in these sectors. 

We emphasise that increasing such representation has been and continues to be a priority for successive New Zealand Governments and there has been steady progress in this regard.

The roles of Governor General, Chief Justice, Speaker of the House, Prime Minister, and Leader of the Opposition have all been held by women in recent years. 

Following the recent appointments in October 2009 - which included the appointment of women to chair the boards of two of New Zealand's largest stated-owned companies - the percentage of women serving on such boards increased to 35 percent, while the percentage of women on the existing Statutory Boards now stands at 42.3 percent.

We also emphasise the representation of women in the New Zealand Parliament.  After the last election, 41 out of the 122 members of Parliament are women, which exceeds the target of 30 percent participation recommended by the United Nations Commission on the Status of Women. 

Currently, 6 of the 19 Cabinet Ministers are women, representing more than 30 percent.  Two Ministers outside Cabinet are also women.

Another development during the reporting period was the establishment of the Taskforce for Action on Sexual Violence in 2007.  This Taskforce comprised 10 government agencies as well as representatives from community organisations with expertise in addressing sexual violence issues. 

A key outcome from the Taskforce has been the formation of a strong collaborative relationship between the Government and the community sector.  The Taskforce gave the Government a final report in July 2009 which included a number of recommendations on future action in the areas of prevention, services for victims and offenders and the criminal justice system. 

New Zealand's sexual violence-related legislation was considered, with changes to the Crimes Act 1961 and the Evidence Act 2006 being proposed.  We note that such changes are supported in some of the shadow reports.  The Government is actively considering the Taskforce's report. 

Work is being undertaken across the education, health, social and justice sector agencies to analyse the recommendations and to develop a formal response to the report, which is expected in the coming months. 

During the reporting period, there have been significant developments in respect of issues relating to the right to life and the prohibition of cruel, inhuman or degrading treatment and treatment of prisoners, including New Zealand's ratification of the Optional Protocol to the Convention Against Torture, the enactment of the Corrections Act 2004, and the new Immigration Act 2009. 

The Committee has enquired about the rights of persons detained on mental health grounds and the shadow reports have noted their concern about the compulsory confinement and treatment regime, as well as the need for the appropriate placement of prisoners with mental health issues, and proper health care without delay. 

We emphasise that under section 16 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, all persons compulsorily detained in New Zealand on mental health grounds have prompt access to judicial review of their detention. 

New Zealand operates inspection regimes consistent with the United Nations Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care.  This regime includes the designation of the Ombudsmen as a National Preventative Mechanism under the Optional Protocol for the purposes of examining and monitoring the conditions of detention and the treatment of detainees in health and disability facilities, including all mental health services. 

Within the last 12 months, 89 inspections were conducted, which represents almost one third of the mental health facilities in New Zealand.

New Zealand recognises that a number of prisoners have mental health problems.  District Health Boards and Prison staff work collaboratively to ensure all prisoners with serious mental illness receive appropriate treatment and are safely contained.

Many strategies are employed, including the requirement that the mental health of all prisoners must be assessed by a registered nurse within the first 24 hours of their stay in prison. 

Prisoners identified as having a primary mental health need may be referred to the prison Medical officer, provided with appropriate medication, education and support. 

The Human Rights Commission noted that such mechanisms for reviewing and overseeing the situation of people detained for mental health reasons are consistent with international standards. 

We accept there is more work to be done.  The Department of Corrections and Ministry of Health will continue their collaborative efforts to improve the management and treatment of this vulnerable group of prisoners.

Mr Chair, the Committee has expressed its concern about the high level of incarceration of Māori.  The Government shares this concern. 

As at February 2010, Māori made up 51 percent of the total prison population, despite being approximately 15 percent of the general population.  This figure is even more striking for Māori women, who make up nearly 60 percent of the total female prison population. 

This is not acceptable to the New Zealand Government. 

Last year the Minister of Māori Affairs and I launched a series of Government initiatives, starting with a Ministerial forum on the "Drivers of Crime".  These issues are complex and require early intervention.  Overrepresentation of Māori in prison is not simply a criminal justice problem.  The answers lie in a broad range of sectors. 

These include health, education, parenting support, housing, recreation, and economic, social and community developments. 

Addressing the drivers of crime will take some time, and in the meantime, the Department of Corrections has implemented a wide range of strategies and interventions targeted at reducing re-offending by Māori. 

The emphasis here Mr Chair, is on preventing crime from occurring, rather than focussing on the effects of crime.  We acknowledge the recommendations put forward by the shadow reports of targets which include a long term approach to addressing inequalities. 

The Government does not have a specific target but has announced priority areas for addressing the Drivers of Crime.  The focus is on improving services for those at risk of being offenders or victims, and their families.  There is particular interest in Māori women and in targets for reducing overrepresentation in prison.

The Human Rights Committee has expressed concerns that competitive tendering of prison management under the Corrections (Contract Management of Prisons) Amendment Act may be inconsistent with Article 10.  We stress to the Committee that prisoners will remain in the legal custody of the Chief Executive of the Department of Corrections. 

Private prison providers must comply with all relevant international standards on the treatment and welfare of prisoners as well as significant domestic legislation such as the Human Rights Act and the Bill of Rights Act and other human rights standards.  Any failure to comply would result in the termination of the contract. 

In addition, there is a monitoring regime, established to meet New Zealand's obligations under the Optional Protocol to the Convention Against Torture.  The Ombudsmen has independent oversight of all prisons managed under the contract.  All prisoners also have guaranteed rights of access to the Ombudsmen if they wish to raise a complaint. 

Mr Chair, New Zealand has previously had experience with privately managed prisons with the Auckland Central Remand Prison, which operated from 2000 to 2005. 

During the time that prison was managed under a contract, it had a very low incident rate with only one death by suicide, two escapes, no serious assaults against staff by prisoners, and two serious prisoner-on-prisoner assaults requiring hospitalisation. The contracted provider also demonstrated significant positive innovation, including in the range of programmes, education and other activities available for prisoners.  These innovations were carried on when the contract returned to Government management.

Finally, I would like to address the use of Tasers.  The New Zealand Police force does not routinely carry firearms.  We are one of only six OECD countries whose Police officers are unarmed. 

The Committee will nonetheless appreciate it is imperative to ensure the safety of our police officers and the public.

Tasers were introduced in December 2008, following a limited trial conducted between September 2006 and August 2007. 

Whilst the use of Tasers has caused concern for the Committee, and issues have also been raised in the various shadow reports, we emphasise that strict operational guidelines on the use of Tasers are in place. 

In response to concerns that the introduction of Tasers is a step away from New Zealand's tradition of having a largely unarmed police force, I stress to the Committee that it represents no such departure.  Tasers will not be routinely carried, and can only be used by officers who are trained and approved to carry them. 

Since the reintroduction of the Taser, there has also been a 50% decrease in the number of actual discharges compared to the trial period. 

New Zealand is aware of the Committee's view that devices such as the Taser should only be used "in situations where greater or lethal force would otherwise have been justified."  Procedures and guidelines are in place ensuring that this is the case in every instance.

Mr Chair, members of the Committee, New Zealand will continue to strive for the protection of human rights in New Zealand. 

Our aim remains to preserve the fundamental principles of respect for human rights affirmed in the Covenant.