RESPONSE TO QUESTIONS 17 - 27: Minister Simon Power

Mr Chair, distinguished members of the Committee, I turn now to the response to issues raised in questions 17 to 27.

During the reporting period, one important development in this area has been the New Zealand Plan of Action to Prevent Trafficking in Persons, which was released in July 2009.  This plan sets out a range of work for government agencies to complete in the short, medium, and long term. 

The specific focus is to prevent people trafficking, protect victims, and prosecute offenders.  This includes training officials who interact with migrant communities on how to identify and respond to trafficking. 

Overall, the Plan represents a formalised response to trafficking and equips New Zealand with the tools to help fight against this international crime and protect its victims.

Shadow reports have suggested concern that trafficking is not viewed as a problem in New Zealand.  It is true that that New Zealand has yet to detect a case of people trafficking.  However we stress to the Committee that New Zealand takes this issue seriously.  The New Zealand Police thoroughly investigates all allegations of trafficking.  Should a victim of trafficking be identified, New Zealand has the means to respond appropriately. 

Trafficking is a serious criminal offence in New Zealand carrying a maximum penalty of 20 years of imprisonment and/or a fine of up to $500,000.  Social agencies are also adequately equipped to identify possible cases of trafficking and to respond to the needs of any victims. 

I turn now to discuss the rights of aliens in accordance with Article 13 of the Covenant.  The Committee asked about the consistency of the Immigration Bill with the principle of non-refoulement.  This Bill has now been enacted but has yet to come into force. 

The Committee enquired specifically about the "screening process" of people travelling to New Zealand.  This refers to a programme used by the Department of Labour to check the immigration status of travellers checking-in to board a plane to New Zealand.  Those who do not have an entitlement to travel to New Zealand are declined boarding by the airline.

The Human Rights Commission, along with other shadow reports noted their concern with the programme.  We emphasise that this programme just checks a passenger's name and other identifying details against the record of their immigration status to ensure that they will be allowed to enter New Zealand on arrival. 

New Zealand has no legal obligation to let passengers without right of entry travel to New Zealand.  If a passenger is declined boarding, but states an intention or desire to claim asylum, the airline check-in agent will refer them to the closest United Nations High Commissioner for Refugees office.  Where a claim is made offshore, the claimant invokes the obligations of the country in which the claim is made.

Where a passenger travels to New Zealand and makes a claim of asylum, New Zealand determines that claim consistently with its international obligations.  All asylum claimants have a right of appeal to a dedicated appeal authority, and may take further appeals in the New Zealand courts.

Where a person is not successful in a claim for asylum, and has completed any appeals they choose to access, they may be removed from New Zealand. 

In order to ensure that New Zealand continues to act in a manner consistent with its non-refoulement obligations throughout the process, the Department of Labour conducts interviews prior to any proposed removal.  The interview is a further opportunity to assess any protection or humanitarian needs of an individual.

Turning to the issue of the right to a fair trial and equality before the law, the Committee has asked what measures New Zealand envisages to ensure full respect for the right to be presumed innocent until proven guilty in cases of terrorism and drug possession.

Yesterday, I discussed New Zealand's anti-terrorism regime.  The Terrorism Suppression Act does not remove or narrow the presumption of innocence in any way.  If any charges are brought under that Act, the burden will be on the Crown to prove all the elements of the offence beyond reasonable doubt, the usual standard of proof in a criminal case.

Yesterday I also discussed the Hansen case, in which the Supreme Court found the Misuse of Drugs Act to violate the presumption of innocence in section 25(c) of the New Zealand Bill of Rights Act. 

As I explained, Mr Chair, the New Zealand Law Commission has released an issues paper on control and regulation of drugs, which addresses, among other matters, the problems of proof that the presumption of supply seeks to remedy.  The Commission has suggested various options for consideration, and has called for submissions or comments by 30 April of this year.  The Government will prepare its formal response to the final report of the Commission when that report is released later this year.  However, I have indicated that the rewrite of the Misuse of Drugs Act is not a priority for the Government.

In relation to the right to privacy, the Committee has asked about the provisions of the Criminal Investigation Amendment Bill 2009.  This Bill permits the expanded collection and retention of DNA samples. 

Various shadow reports expressed concern that the collection of DNA samples and profiles would place an unjustifiable limit on the right to privacy. 

We acknowledge these concerns, but stress that measures have been put into place in order to minimise the Bill's intrusion on individuals' rights. 

As noted in the New Zealand response to the advance questions, the Attorney-General found the Bill, as introduced to Parliament, to be inconsistent with section 21 of the Bill of Rights Act.  This is the right to be secure against unreasonable search and seizure. 

In response, Mr Chair, we stress that Parliament took notice of these concerns during the Select Committee process and made a number of amendments to the Bill, particularly around improving the process for taking a DNA sample from a young person. 

Operational guidelines have also been developed to assist the Police in exercising their discretion to take a sample and to the arbitrary application of this power.

There are also a number of measures in the Act that minimise its intrusion on individuals' rights.  These are:

• the retention of limited DNA profile information only, rather than the DNA sample itself;


• new criminal offences penalising the misuse of DNA profile information, which will complement existing legal remedies under the Bill of Rights Act and the Privacy Act;


• mandatory time limits for the retention of profiles; and


• deletion of profile information on acquittal or discontinuance of proceedings.

The Committee also enquired about the compatibility of the Beggs case with the freedom of expression and the right of peaceful assembly.

The Beggs case arose from a protest in the grounds of the New Zealand Parliament.  The protest was brought to an end when a representative of Parliament's Speaker requested the protestors to leave and, after they did not do so, they were arrested for trespass.

The High Court held that the Speaker and the Police acted contrary to the right of peaceful assembly under the Bill of Rights Act, which parallels Article 21 of the Covenant.  The Court stayed the trespass charge, holding that the Speaker had failed to balance the protestors' rights against such factors as interference with others' access to Parliamentary buildings.  A number of the protestors subsequently brought compensation claims under the Bill of Rights Act and these have recently been resolved through financial settlements.

I now turn the Committee's attention to the rights of the child in Article 24.  The Committee has acknowledged that New Zealand has recently repealed a defence contained in section 59 of the Crimes Act to permit the use of reasonable force against a child for the purpose of parental correction. 

Since that time, the repeal of that defence was the subject of an official, but non-binding, Citizens Initiated Referendum, in which a majority voted for the reinstatement of that defence.  Notwithstanding this result, in the present circumstances, the Government does not intend to reinstate the defence.  

The report from the Human Rights Commission and various shadow reports are in agreement that the current section 59 should stay in force.

However, we would like the Committee to note that, in acknowledgment of the referendum results, the Government has asked the Ministry of Social Development look into this matter. 

It found that there was no evidence that parents are being subject to unnecessary state intervention for lightly smacking children.  The Police will also continue to report on the operation of the law on a six-monthly basis for the next three years. 

The Committee has also enquired about the extent of child abuse in New Zealand and on the measures taken to eradicate it.  The extent of child abuse in New Zealand was raised in the shadow reports.

The rates of child abuse in New Zealand are unacceptable. 

From 2004 to 2008 the number of substantiated child maltreatment findings for cases relating to children aged zero to 16 notified to New Zealand's care and protection agency (Child, Youth and Family) rose from about 8,500 to 16,000.  During this time the number of children in New Zealand has remained at about 1,000,000.

Again, those figures are unacceptable.

The Government is taking several legislative and non-legislative steps to eradicate child abuse.

In October 2009, Parliament enacted the Domestic Violence (Enhancing Safety) Act, which allows Police to issue on the spot protection orders to address the immediate safety of victims.

In December 2008, Parliament amended sentencing laws to hold adults more to account for violence against children.  The defencelessness of children is now an aggravating factor to be considered in sentencing adult offenders (Sentencing (Offences Against Children) Amendment Act).

The Government has recently agreed to make changes to our Crimes Act to further protect children.  A new provision will make it a criminal offence to fail to act where an adult member of the household knows that a child is being subject to sexual abuse, or a risk of serious injury or death.

In September 2009, the Government announced a number of non- legislative initiatives as part of a campaign to stop child abuse.  These include:

• a national public information campaign to ensure parents and other caregivers are aware that they must never shake a baby;


• locating Child, Youth and Family social workers in six key hospitals;


• multi-agency safety plans that require protection agencies to meet every time a suspected child abuse victim is admitted to hospital to ensure that the child has a safe home to go to when he or she leaves hospital;


• the ‘preventing shaken baby syndrome' programme in which every new parent will be instructed on how to look after a crying baby; and


• setting up an Independent Experts Forum to identify ways to prevent child abuse and to stop the reoccurrence of this abhorrent practice.

These initiatives reflect the Government's commitment to making a difference in the rates of child abuse in New Zealand. 

The Police, Department of Child Youth and Family, and the Ministry of Health are also working together to develop an agreed protocol for collecting information, in order to improve monitoring systems and get an accurate picture of child abuse incidents.

I have also asked the Law Commission, which is currently reviewing offences against the person, to give priority to its review, with special regard to offences against children and ensuring that penalty levels for those offences are consistent with penalties imposed for other assaults. 

The Committee, and in particular, Madame Chanet, has asked whether New Zealand plans to raise the minimum age of criminal responsibility for murder and manslaughter. 

In New Zealand, this is currently set at 10 years old and reflects the gravity of these particular crimes.  The Government has no plans to raise the age of criminal responsibility for murder or manslaughter. 

Despite concerns noted in the shadow reports, we assure the Committee that prosecutions against 10 to 13 year olds for murder and manslaughter are extremely rare.  Furthermore, in addition to the normal burden of proof, before a child can be convicted, it must be proved that the child knew the act or omission was wrong, or that it was contrary to law. 

It is also important to note that, in the case of murder, the Court may impose a lesser sentence if a sentence of imprisonment for life would be manifestly unjust. 

Mr Chair, I would now like to turn to Article 25.  The Committee asked what measures New Zealand has taken to ensure that the new electoral legislation is consistent with the right to take part in the conduct of public affairs. 

New Zealand is currently undertaking a number of electoral law initiatives.  The Committee has asked, in particular, about the review of electoral finance legislation. 

Shadow reports have expressed concern that the Electoral Finance Act 2007 limited freedom of expression by regulating the participation of so-called "third parties" in election campaigns.

Mr Chair, electoral finance law is important to New Zealand's democratic system and needs to be based on a broad consensus.

In 2009 the Government repealed the Electoral Finance Act 2007 and enacted an interim regime to regulate electoral finance.  The Government then began a process to create an enduring electoral finance regime.

The Government consulted all parliamentary parties, as well as the Human Rights Commission, at each stage of the review process.  The New Zealand public had two opportunities to comment: first, on an issues paper released in May 2009 and then on a proposal document released in October 2009.

The Government has recently announced the shape of the new electoral finance legislation to be introduced to Parliament shortly.  The focus for agreeing on changes to the electoral finance laws was consensus and transparency.  The changes will-

• Require disclosure of the total amount of donations that parties receive, which will be expressed in bands;


• Increase the amount of money that parties and candidates can spend on election campaigning, tied to the rate of inflation for each general election; and


• Require people who spend more than $12,000 on parallel campaigning to register with the Electoral Commission. The register will be publicly available to ensure openness and transparency concerning the identities of parallel campaigners.

The upcoming public debate on these issues will ensure that the package will provide an enduring and consensus-based framework.

Another area of electoral reform is the establishment of a new independent entity to undertake electoral administration.  An Electoral (Administration) Amendment Bill has been introduced to Parliament, and transfers all functions relating to the administration of elections to the new entity.  The transfer will occur in stages to ensure the smooth conduct of New Zealand elections.

The third piece of electoral reform is a referendum to be held in conjunction with the 2011 general election to gauge voter satisfaction with the current Mixed Member Proportional Representation voting system.

I turn now to discuss the rights of persons belonging to minorities in Article 27 and particularly the ways in which the Treaty of Waitangi is incorporated into domestic New Zealand law. 

The Treaty continues to be the central focus for the ongoing and evolving relationship between Māori and the Crown. 

The Government acknowledges that the Treaty of Waitangi has been the subject of much public and political discussion, some of which is repeated in the shadow reports and the report from the Human Rights Commission.  We stress that the place of the Treaty of Waitangi in New Zealand's constitutional arrangements is not static but is a subject of continued debate and judicial interpretation.

Consideration of the Treaty of Waitangi is built into the law-making process in New Zealand.  All Ministers who seek Cabinet's approval to introduce bills into Parliament must indicate whether the bill is consistent with the principles of the Treaty, which are said to be partnership, active protection and redress.  Where they do not, the Minister must provide reasons for the bill's inconsistency. 

The Treaty of Waitangi is also incorporated into a range of domestic legislation.  Particular statutes also require statutory decision-makers to give effect to, acknowledge or have regard to the Treaty.  Others recognise and respect the principles of the Treaty of Waitangi by providing specifically for Māori involvement in statutory processes or functions.

Regardless of whether a particular Act refers to the Treaty, the Courts have in recent times, interpreted relevant legislation in a manner consistent with the Treaty whenever possible.

The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975.  In general the Tribunal investigates claims from Māori that the Crown has acted inconsistently with the Treaty.  The Tribunal then makes recommendations to the Government. 

The Crown has accepted an obligation to take steps to redress the historical wrongs visited upon Māori in respect of their land and their resources in breach of the Treaty of Waitangi.

Redress includes commercial redress, cultural redress, and historical redress.  This can range from financial settlement to an apology.

In the last year, the pace of Treaty settlements has accelerated.  Since February 2009, the present Government has entered into eleven agreements-in-principle and signed five Deeds of Settlements.

In response to the Committee's enquiries about the Waitangi Tribunal's financial resources, I advise that the Tribunal received an increase in funding in 2007.  The current level of funding is $12.15 million per annum.  The Government is satisfied that this is sufficient for the Tribunal to carry out its functions. 

Mr Chair, the last issue I will cover is the dissemination of information about the Covenant and the involvement of non-Governmental organisations in the preparation of the report submitted to the Committee.

A draft of the fifth periodic report was circulated for public comment in late October 2007.  The Ministry of Justice specifically sought feedback from non-governmental organisations with an interest in human rights.  That consultation addressed the Government responses to the Committee's concluding observations on the fourth periodic report. 

Officials from the Ministry of Justice also met with representatives of the Human Rights Commission to discuss the draft report, and provided them with a second draft.

The Ministry received 14 submissions, which were considered in the preparation of the final report.

We nonetheless acknowledge that New Zealand could make improvements in the involvement of civil society. 

In light of the recommendation in the recent Universal Periodic Review, the Government is considering ways to improve consultation with non-Governmental organisations.  The Ministry of Justice has sought views of NGOs about how and when they would like to be consulted.  Towards the end of 2009, meetings were held with various NGOs.  The Ministry took this opportunity to discuss how best to consult with those organisations. 

Information on the Covenant is available from the Ministry of Justice and the Ministry of Foreign Affairs and Trade.  There is also a Handbook which contains the texts of all the main human rights treaties.  Again this is available from the Ministry of Foreign Affairs and Trade.  Links to these treaties can also be found on relevant Government websites. 

To conclude Mr Chair, I would like to thank you and the members of the Committee for your time.  I am happy to answer any of your questions or to make further comments as you wish.