CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic reports of States parties due in 1995
Addendum
NEW ZEALAND
[25 February 1997]
* The initial report submitted by the Government of New Zealand is
contained in document CAT/C/12/Add.2; for its consideration by the
Committee, see documents CAT/C/SR.126 and 127 and Add.2, and Official
Records of the General Assembly, Forty-eighth Session, Supplement
No. 44 (A/48/44), paras. 133-160.
Introduction
1. Following
is New Zealand's first supplementary report to the Committee against
Torture submitted in accordance with article 19 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. This report covers the review period 9 January 1991 to
8 January 1995, although reference is made to more recent developments
where appropriate. It deals with new measures which give effect to
the provisions of the Convention and other relevant developments.
It also addresses issues raised by the Committee against Torture in
its consideration of New Zealand's initial report.
2. This report
supplements and should be read in conjunction with New Zealand's initial
report submitted in July 1992 (CAT/C/12/Add.2) and the consideration
of that initial report by the Committee in November 1992 and February
1993 (CAT/C/SR.126, CAT/C/SR.127 and CAT/C/SR.127/Add.2). Reference
should also be made to the core document of New Zealand (HRI/CORE/1/Add.33)
submitted on 28 September 1993 in accordance with the guidelines contained
in document HRI/CORE/1.
I. SUMMARY OF KEY DEVELOPMENTS
3. New Zealand's
initial report outlined the legislative, judicial, administrative
and other measures existing in New Zealand which gave effect to the
provisions of the Convention. The framework outlined in the initial
report remained substantially in place. Where key legislative and
regulatory developments have occurred, they are summarized below (with
reference to the relevant article of the Convention against Torture)
and outlined in detail in Parts II and III of the report. Those developments
are:
(a) The
proposal of legislation to simplify processes involved in arranging
extradition between New Zealand and other countries (art. 8);
(b) The
passage into law of the Mutual Assistance in Criminal Matters Act
1992 (art. 9);
(c) The
revision of training procedures for prison officers relating to the
prohibition against torture (art. 10);
(d) The
development of standards for community-based residential services
with the objective of safeguarding children in care (art. 10);
(e) The
passage into law of the Mental Health (Compulsory Assessment and Treatment)
Act 1992 (arts. 10, 11, 12, 13);
(f) The
passage into law of the Accident Rehabilitation and Compensation Insurance
Act 1992 (art. 14);
(g) The
passage into law of the Health and Disability Commissioner Act 1994
(arts. 10, 12, 13);
(h) The
decision of the Court of Appeal in Simpson v. Attorney-General
[1994] 3 NZLR 667, which recognized the ability of individuals to
seek compensation directly from the State for breach of the individual's
rights under the New Zealand Bill of Rights Act 1990 (art. 14).
4. In the
period under review, no one has been convicted or charged with committing
an act of torture in New Zealand as the term "torture" is defined
under the Convention. As at January 1995, a police investigation was
continuing into complaints by prisoners at a New Zealand prison alleging
assault by prison officers. The complaints and follow-up are detailed
in Part II of the report.
II. INFORMATION ON NEW MEASURES AND DEVELOPMENTS RELATING TO THE IMPLEMENTATION
OF THE CONVENTION
5. The information
supplied in New Zealand's initial report still applies in full with
reference to articles 2, 4, 5, 6 and 7.
Article 3
6. Some procedural
changes have been made to the refugee status application process outlined
in New Zealand's initial report (para. 3.3). The Refugee Status Branch
of the Immigration Service now undertakes initial determination of
applications. The Refugee Status Appeals Authority remains in place
with an independent lawyer as the professional chair. Other members,
including independent lawyers and judges hold part-time and full-time
positions. The Canberra office of the Office of the United Nations
High Commissioner for Refugees (UNHCR) periodically sends representatives
to Authority hearings.
7. This change
from an interdepartmental part-time authority to a dedicated staff
led to improved independence, transparency of process and efficiency.
Therefore, there were better procedures for dealing with the increased
number of refugee applications being made.
Article 8
8. The need
to review New Zealand's extradition legislation has been recognized
for some time. The previous Government had given approval to the inclusion
of an extradition bill on the 1996 legislative programme. However,
future work on an extradition bill will now be dependent on the new
Government. If enacted, the bill would simplify the processes involved
in arranging extradition between New Zealand and other countries,
both Commonwealth and non-Commonwealth. In particular, procedures
for establishing extradition relationships with non-Commonwealth countries
would be streamlined by allowing such relationships to be established
without a treaty, or by way of simple treaty.
Article 9
9. New Zealand's
initial report (para. 9.1) foreshadowed the passage of a draft bill
on mutual assistance in criminal matters. It was passed into law as
the Mutual Assistance in Criminal Matters Act 1992. That Act provides
a legislative basis for New Zealand to enter into arrangements with
other parties from which New Zealand can request and to which it can
provide assistance specifically in relation to criminal matters. These
matters include investigations, proceedings, and the issuing and enforcement
of orders relating to the proceeds of crime. Information relevant
to investigations into offences referred to in article 4 of the Convention
is covered by the Mutual Assistance in Criminal Matters Act 1992.
That legislation provides for requests for mutual assistance from
countries which are prescribed under that Act by Order in Council.
Prescription is usually preceded by the negotiation of a Mutual Assistance
Treaty, although this is not essential.
Article 10
Penal
institutions
10. As foreshadowed
in New Zealand's initial report (para. 10.3), the prison officer training
manuals have been revised and now include specific reference to the
prohibition of acts of torture. The compulsory training course for
all probationary prison officers now covers the prohibition on torture,
in the context of the Crimes of Torture Act 1989. A further module
relating to Acts and Regulations, which is part of optional continuing
education for prison officers, also covers the prohibition on torture.
These courses are conducted by the New Zealand Corrections Staff College.
Children
and young persons
11. Further
developments have been made in the area of protection and treatment
of children and young persons in the care of the State as outlined
in New Zealand's initial report (para. 10.5 and 10.6). The Department
of Social Welfare now operates five residences nationally. These reflect
the requirements of the Children, Young Persons, and Their Families
Act 1989 and the Department of Social Welfare's Residential Strategy,
that residential care should be considered only as the option of last
resort in the placement of children and young persons who have offended,
or are in need of care or protection. Moreover, residential care is
an option only in cases where parent(s) and family(ies) are unable,
or have been deemed unable, to meet the care or control needs of their
children or young persons. Two of the five residences operated by
the Department provide both care and protection, and youth justice
programmes. Two residences provide youth justice programmes only,
and one a care and protection programme only. (In accordance with
the Department's Residential Strategy, all care and protection facilities
are being separated from youth justice facilities.)
12. Standards
for the approval of community-based residential services have been
developed by the New Zealand Community Funding Agency (the funding
and contracting agency for the Department of Social Welfare). The
objective is to safeguard children in care. The standards cover child
and family support services and set out specific requirements for
community providers of overnight care for children. They include the
need for community providers to:
(a) Provide
care to children in a safe, age-appropriate and family-like setting.
Children's physical, social, emotional, psychological, cultural, health,
educational and recreational needs must be adequately catered for.
Children must be kept safe from risk or harm and from emotional, sexual
or physical abuse;
(b) Care
for children or young persons in an environment where no corporal,
physical or emotional punishment is to be administered;
(c) Vet
potential caregivers and staff, and ask any person involved in service
delivery to sign a declaration fully stating any criminal convictions;
(d) Set
out a clearly understood grievance procedure and policy to deal with
complaints and reported/suspected abuse, neglect or ill-treatment
of any child or young person in care;
(e) Provide
a safe physical environment.
Medical
professionals
13. During
the reporting period the Mental Health Act 1969 outlined in New Zealand's
initial report (para. 10.9) has been repealed and replaced by the
Mental Health (Compulsory Assessment and Treatment) Act 1992. Under
the new Act it continues to be an offence for a person concerned with
the care, oversight and control of mentally disordered people to neglect
or ill-treat them. The offences are punishable on summary conviction
by way of a fine. In addition, mistreatment of medical patients can
be the subject of a complaint to the newly established Health and
Disability Commissioner whose impartial investigation can lead to
public reports, revocation of professional registration, or monetary
fines.
Article 11
14. Further
to information contained in New Zealand's initial report (para. 11.3),
only a Department of Social Welfare residence can operate a secure
care or custody unit for the detention of children and young persons.
Admission of children and young persons to "secure" detention is tightly
controlled. Children and young persons can only be admitted to resident
secure units for two reasons. The first is that their behaviour is
a threat to themselves and/or others. The second is that there are
grounds to believe that they are likely to abscond. In all cases,
a child or young person can only be admitted to the secure unit with
the approval of either a senior residential social worker or the residence
manager. The police and courts do not have the statutory authority
to order a child or young person placed in secure care, but they are
able to make recommendations to that effect. Detention of a child
or young person in secure care cannot exceed 72 hours. Where the Department
wishes to detain a child or young person in secure care for longer,
it must make special application to either the Family Court or the
Youth Court (depending on the age of the defendant and the nature
of the case) for approval. If the Court is satisfied with the evidence
provided by the Department in support of its application, the Court
is then able to approve the child's or young person's continued detention
in secure care for a maximum of 14 days. All placements in secure
care are subject to 24-hour reviews by senior residential social workers.
15. The care
of a person who is held involuntarily because it has been found that
he or she is mentally disordered, is now regulated by the Mental Health
(Compulsory Assessment and Treatment) Act 1992 (see para. 13 above),
replacing the provisions outlined in New Zealand's initial report
(para. 11.4). That Act provides for the assessment and treatment of
patients and for the regular review of their condition and legal status.
The first part of that system involves the regular clinical review
of the patient's condition by the responsible clinician in consultation
with other health professionals concerned with the case. The clinical
review must be conducted no later than three months after the date
of the compulsory treatment order and, after that, at intervals of
no more than six months. Where a patient who is subject to a compulsory
treatment order is considered fit to be released as a result of a
clinical review, he or she must be released from compulsory status
immediately. If the patient is not fit to be released, he or she (or
specified others acting on the patient's behalf) may apply to the
Review Tribunal for a review of the patient's legal status. Where
the Tribunal does not consider that the patient is fit to be released,
an appeal may be made to the District Court for a review of the Tribunal's
decision. A patient's responsible clinician may release the patient
from compulsory assessment or treatment at any time.
Article 12
Penal
institutions
16. In January
1993, the Inspectorate of the Penal Division of the Department of
Justice received allegations of abuse by seven prison inmates against
several staff members at a penal institution, Mangaroa Prison. It
was alleged that inmates had been beaten by prison officers with fists
and boots and denied medical attention, food and shelter.
17. As a
result of these complaints by inmates, the following steps were taken:
(a) A firm
of private investigators was contracted to carry out an inquiry into
the incidents;
(b) A number
of prison officers were suspended pending disciplinary proceedings.
Subsequent disciplinary charges resulted in disciplinary action, including
dismissal, against those prison officers involved;
(c) The
Minister of Justice commissioned a ministerial inquiry into management
practices at Mangaroa Prison. It focused on factors which may have
contributed to the occurrence of staff misconduct, and on making recommendations
on any matters which may prevent similar incidents in the future,
either at Mangaroa Prison or at other institutions. (The inquiry was
not to be an investigation of the incidents themselves - this was
undertaken by the police as outlined below.) The resulting report
- the Logan Report - was published in July 1993, and many of its recommendations
have been, or are in the process of being implemented;
(d) The
Department of Justice requested the views of the Human Rights Commission
on the Government's responsibilities under the Convention, in light
of the incidents at Mangaroa;
(e) The
matter was subsequently referred by the Department of Justice to the
police. The police inquiry was directed at attempting to find sufficient
evidence to recommend to the Solicitor General that one or more officers
be investigated under the Crimes of Torture Act 1989. As of 8 January
1995, the investigation was still ongoing.
18. The inquiry
ordered by the Minister of Justice into practices at Mangaroa Prison
looked at the possible causes of misconduct, organization and staffing
issues, and management strategies and practices. The resulting Logan
Report made a number of specific recommendations in relation to the
prison, as well as more general recommendations relating to the reform
of the New Zealand penal system.
19. The specific
recommendations for Mangaroa Prison have been implemented in the following
ways:
(a) The
appointment of a human resources manager;
(b) Improving
communications in the prison management team through the development
of a prison management plan to integrate the tasks of daily prison
management;
(c) Beginning
remedial training for staff to correct identified problems by conducting
skills assessments and regular in-house training. A skills development
programme is being developed and regular ongoing training will continue;
(d) Training
in supervision and leadership skills for supervisory staff, as well
as training in performance assessment, coaching and counselling skills;
(e) The
establishment of a bicultural development plan for prison staff and
inmates;
(f) Removing
physical partitions within the prison to facilitate better access,
communication, and inmate-staff and inmate-inmate interaction.
20. Although
the primary focus of the inquiry was on Mangaroa Prison, the report
also made a number of recommendations of general applicability to
all prisons. These recommendations aim to consolidate and enhance
the strategic reform of the prison system (which the Penal Division
of the Department of Justice had begun in 1989), and to prevent incidents,
such as the alleged misconduct outlined above, occurring in the future.
21. The following
summarizes the major recommendations and any action taken to implement
them during the review period:
(a) Fair
procedures for both inmates and staff to resolve allegations of misconduct:
(i) Establish
an independent Prison Complaints Authority to receive complaints from
inmates of alleged misconduct and neglect of duty by prison staff,
to investigate those complaints, and to make recommendations to the
Secretary of Justice and report to Parliament. The Government has
agreed to establish a discrete unit within the Office of the Ombudsman
to deal with prison inmate complaints,
(ii) Restructure
the prison inspectorate to comprise trained inspectors operating from
the Criminal Justice Development Unit of the Department of Justice,
and reporting directly to the Secretary for Justice. The inspectorate
now exists in the recommended form. The Corrections Operations Division
of the Department of Justice, which is responsible for prisons, developed
an internal auditing group known as Correctional Audit Services. Pursuant
to the provisions of Penal Institutions Act 1954, the powers and functions
of inspectors include the following:
(a) to visit
any penal institution from time to time to interview any inmate;
(b) to examine
the treatment and conduct of inmates;
(c) to hear
any complaint made by an inmate;
(d) to inquire
into all abuses or alleged abuses within the institution or in connection
with it;
(e) to inquire
into any matter referred by the Secretary for Justice;
(f) for
any of the above purposes, to take evidence on oath or otherwise;
and
(g) to report
in writing to the Secretary for Justice on any of these matters or
on other matters relating to penal institutions;
(iii) Redefine
the role of Visiting Justices in disciplinary proceedings. District
Court Judges, rather than Justices of the Peace, now generally conduct
hearings against inmates charged with serious misconduct. New national
guidelines and requirements governing inmate rights and disciplinary
procedures have been published and are available to inmates;
(iv) The
Justice Department reinforced the status of inmate rights by sending
formal reminders to all prison management, and strengthening the requirements
in General Managers' personal performance plans to emphasize that
inmate privileges cannot be withdrawn as a punishment for an alleged
infraction without a disciplinary hearing;
(v) Establish
a clear, and auditable, document-trail in prison administration to
facilitate any investigation, audit, or review. An inmate complaints
registration system and new procedures have been developed;
(vi) The
Justice Department now provides greater assistance regarding inmates'
rights by providing more information to inmates. On induction inmates
are given a booklet explaining their rights and newssheets on relevant
issues are distributed. Staff give advice on procedural matters to
those inmates facing internal disciplinary proceedings;
(vii) Modifications
have been made to procedures for controlling and restraining violent
and uncooperative inmates. The new instructions emphasize the use
of negotiating techniques as the preferred approach, with physical
restraint considered only as a last resort;
(b) Staff
Development. The importance of revising recruitment procedures and
improving the expertise of selectors through skills training was identified.
The initial prison officer training programme is being reviewed and
a new programme in line with the Logan Report's recommendations was
implemented early in 1995 (see paragraph 10 regarding incorporation
of the prohibition against torture in training modules).
22. Some
months after the incidents at Mangaroa Prison, allegations were made
that prison officers at Wellington Prison had assaulted inmates. The
Department of Justice engaged a firm of private investigators to carry
out an inquiry, which concluded by recommending that the allegations
merited further investigation. A Department of Justice review team
then undertook a comprehensive investigation, which resulted in disciplinary
action being taken against nine officers.
Psychiatric
hospitals
23. The enactment
of the Mental Health (Compulsory Assessment and Treatment) Act 1992
amends the procedures for dealing with complaints by patients in psychiatric
hospitals outlined in New Zealand's initial report (para. 13.3). Under
that Act, district inspectors or official visitors are appointed to
investigate complaints. Every patient is seen by a district inspector
or official visitor at least twice during the assessment phase and
after clinical reviews. Where a complaint has substance, the district
inspector or official visitor shall report the matter to the Director
of Area Mental Health Services. The Director must take necessary steps
to remedy the matter. If the patient is not satisfied with the outcome
of the investigation, he or she may have the matter reviewed by the
Review Tribunal.
24. The enactment
of the Health and Disability Commissioner Act 1994 establishes another
independent process for the investigation of alleged mistreatment
or abuse of patients being held under a mental health compulsory assessment
or treatment order. This Act requires the Health and Disability Commissioner
to create a Code of Health and Disability Services Consumers' Rights
which must be complied with whenever health and disability services
are being delivered to the public or an individual. The Act requires
the Code to include the right to appropriate standards of service
and the principles of informed consent to medical treatment. An act
of torture or other cruel, inhuman or degrading treatment that occurs
during the provision of health or disability services would clearly
constitute a breach of the Code of Health and Disability Services
Consumers' Rights.
Article 13
25. District
inspectors (who are lawyers) and official visitors appointed under
the Mental Health (Compulsory Assessment and Treatment) Act 1992,
have the power to investigate complaints from patients using mental
health services as noted above (para. 23).
26. The Health
and Disability Commissioner is also required to promote and enforce
the Code of Health and Disability Services Consumers' Rights by receiving
complaints about medical professionals and organizations. The Commissioner
is required to conduct impartial investigations, arrange mediations
and refer situations to a Director of Proceedings. The Director of
Proceedings can then take action in the relevant professional registration
body or the Complaints Review Tribunal. These actions can lead to
various sanctions including the medical professionals losing their
licence to practice in New Zealand, and monetary fines to compensate
the aggrieved individual. If the Director of Proceedings refuses to
conduct such actions, the legislation allows the aggrieved individual
to initiate these actions personally. While District inspectors will
continue to assist persons being treated under the Mental Health Act,
the role of official visitors is currently under review as a result
of the Health and Disability Commissioner Act 1994.
Article 14
27. As foreshadowed
in New Zealand's initial report (para. 14.1), the Accident Compensation
Act 1982 has been replaced by the Accident, Rehabilitation and Compensation
Insurance Act 1992. This new legislation now provides compensation
through the Accident Rehabilitation and Compensation Insurance (ARCI)
scheme which is administered by a Crown entity (the Accident Rehabilitation
and Compensation Insurance Corporation). Under the new scheme, persons
who suffer personal injury by accident (including torture) can still
obtain compensation for ordinary damages, medical treatment, rehabilitation
and other forms of assistance. Emotional and mental harm is also covered
by the ARCI scheme when it is an outcome of physical injury suffered
by the person claiming assistance.
28. Although
the statements made in paragraphs 14.3 and 14.4 of New Zealand's initial
report continue to represent the situation under the Crimes of Torture
Act 1989, developments in the judicial interpretation of the New Zealand
Bill of Rights Act 1990 will be of interest to the Committee. In 1994
the New Zealand Court of Appeal (Simpson v. Attorney-General
[1994] 3 NZLR 667) accepted the possibility of a monetary damages
claim against the Crown for a breach of the Bill of Rights Act. These
monetary damages were designed to compensate an individual whose rights
(under the Bill of Rights Act) were breached by a public servant or
State official. Accordingly, it has now been established by the Court
of Appeal's decision that if an individual's rights are breached by
a State servant, and the courts have no other sufficient remedy to
rectify the breach, the aggrieved individual can take a court action
against the Attorney-General (as representative of the Crown) for
monetary compensation. Given that section 9 of the Bill of Rights
Act provides that "everyone has the right not to be subjected to torture
or to cruel, degrading, or disproportionately severe treatment or
punishment", there is now the further possibility that an individual
can be compensated for suffering such treatment by taking an action
based on the Bill of Rights Act.
Tokelau
29. A new
crime regulation system, and related procedures, was under development
for Tokelau during the review period. The existing code is being modified
to ensure consistency with Tokelau's obligations under international
law concerning human rights issues. The new code is being developed
in close consultation with Tokelau elders to ensure that it reflects
Tokelauan needs, is consistent with Tokelauan custom and is determined
by what is appropriate for Tokelau.
III. INFORMATION REQUESTED BY THE COMMITTEE
30. The information
requested by the Committee during its consideration of New Zealand's
initial report was provided during the discussion of the initial report
or has been presented in Part II of this report. Where necessary,
additional information and elaboration is supplied below. In particular,
the Committee may wish to note the following in relation to its concluding
comments on New Zealand's initial report:
(a) The
Committee's concerns about the application of articles 8 and 9 of
the Convention are being addressed by the planned legislation on extradition,
and the passage of the Mutual Assistance in Criminal Matters Act 1992
(see paras. 8 and 9 of this report);
(b) Further
information on New Zealand's reservation to article 14 is provided
(see paragraphs 35-37 of this report).
31. With
reference to the Committee's question regarding sentencing under the
Crimes of Torture Act 1989, the following should be noted: There have
been no prosecutions under the Crimes of Torture Act 1989. The offences
of torture outlined in section 3 of that Act attract maximum penalties
of 14 and 10 years' imprisonment, respectively. Therefore, if a person
were to be successfully prosecuted his or her sentence would be set
at the discretion of the judge having regard to the prescribed statutory
maximum sentence, the principles of sentencing set out in the Criminal
Justice Act 1995 and case law precedent. Because imprisonment is the
prescribed maximum penalty it would be open to the judge to consider
the full range of sentencing options available under the Criminal
Justice Act 1995. However, if the offence was one involving violence
the statutory presumption in section 6 of that Act would favour the
imposition of a full-time custodial sentence.
32. With
reference to questions asked by members of the Committee relating
to the Police Complaints Authority, the following should be noted:
The avenues for complaints of torture relating to the actions of a
police officer are the Police Complaints Authority and the New Zealand
Police itself. Any complaints relating to alleged criminal actions
by members of the police are taken very seriously and investigated
with a view to prosecution. The fact that the Police Complaints Authority
can choose to take no action where the complainant has knowledge of
the matters under complaint for more than 12 months is not a statute
of limitations. The Authority has discretion to decide to take no
action in a range of circumstances where the complaint is trivial,
frivolous, vexatious or not made in good faith. Whenever the Authority
decides to take no action under this section it must inform the complainant
of that decision and the reasons for it. Serious criminal offences
such as those in the Crimes of Torture Act 1989 have no limitation
period.
33. With
reference to the Committee's question regarding the minimum age of
prosecution under the Crimes of Torture Act 1989, the following should
be noted: Under section 21 of the Crimes Act 1961 a child under the
age of 10 is not criminally responsible and cannot be convicted of
an offence. Under section 22 of that Act a child between the ages
of 10 and 14 cannot be convicted of an offence unless he or she knew
that his or her actions were wrong or contrary to the law. Section
272 (1) of the Children, Young Persons and Their Families Act 1989
(CYP&F Act 1989) states that criminal proceedings shall not be
commenced against a child between the ages of 10 and 14 except when
the child is alleged to have committed murder or manslaughter. Under
the CYP&F Act 1989 a person aged 14 to 16 years who is not married
is defined as a young person. Young persons may be prosecuted for
criminal offences. As a general rule, however, their offending will
be dealt with in the Youth Court in accordance with the provisions
of the CYP&F Act 1989. Persons aged 17 years and above who commit
an offence come within the jurisdiction of the District or High Court
depending on the gravity of the offence committed.
34. With
reference to the Committee's question regarding training for judges
and lawyers, the following should be noted: In general, lawyers and
judges do not receive compulsory training regarding the prohibition
of torture, although the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment may be included in the
curricula of some courses in international law and criminal law.
35. With
reference to the Committee's questions regarding compensation for
victims of torture, the following additional explanation is offered:
where criminal proceedings have been instituted in relation to an
offence committed under the Crimes of Torture Act 1989 a wide range
of options are available to the court under the Criminal Justice Act
1985 in sentencing the offender. These include the imposition of a
sentence of reparation under section 22 of that Act in any situation
where the court is satisfied that any other person suffered loss or
damage to property or emotional harm. Section 11 of that Act requires
the court to consider imposing a sentence of reparation in all cases
unless it would be clearly inappropriate to do so.
36. Like
the 1982 legislation (discussed in paragraph 14.1 of New Zealand's
initial report) the 1992 ARCI scheme removes the right to lodge a
civil claim for damages in a case of personal injury. However, the
scheme does allow a victim to bring a civil claim for exemplary or
punitive damages in addition to any claim under that ARCI. It may
also be possible for a victim of torture to claim ordinary damages
for false imprisonment. In both these civil claims, it is the person
or persons responsible for the torture or cruel punishment who will
be obliged to compensate the aggrieved individual.
37. Apart
from the compensation available to the aggrieved individual under
section 22 of the Criminal Justice Act, the ARCI scheme, or a civil
court action for exemplary damages or false imprisonment, section
5 of the Crimes of Torture Act allows the Attorney-General a discretion
to grant the victim compensation from the Crown. This compensation
is possible regardless of whether the Crown was responsible for the
acts committed or not. It is noted that the Attorney-General's discretion
as specified in New Zealand's reservation to the Convention, and illustrated
in section 5 of the Crimes of Torture Act, attracted concern from
members of the Committee when discussing New Zealand's initial report.
However, the New Zealand Court of Appeal's decision in Simpson
v. the Attorney-General now allows a person whose rights (under
the New Zealand Bill of Rights Act) were breached by a public servant
to take a court action against the Crown for monetary compensation.
Such an action means that the aggrieved individual does not have to
rely simply on the Attorney-General's discretion to grant compensation.
The courts are now able to directly award compensation to persons
who have suffered torture or abuse at the hands of a public servant.
38. With
reference to the Committee's questions regarding provision for refugees
who have been victims of torture outside New Zealand, the following
should be noted: New Zealand's refugee policy has meant that the Government
has in effect undertaken a level of responsibility for families and
children who may have suffered or are currently suffering the effects
of torture occurring outside New Zealand. There are currently 16,000-20,000
refugees in New Zealand. The Department of Social Welfare purchases
a number of support services, through the New Zealand Community Funding
Agency, for which refugees are eligible. These services include community
work and community development services. Assistance has been provided
to aid the publication of "link" newspapers, an example of a more
holistic approach to resettlement. The Department of Social Welfare
also has an advocacy role for refugees as it does for Maori, women,
youth, the aged, and other "disadvantaged" groups with special needs.
39. The Department
of Social Welfare is also responsible for the administration of income
support for refugees. As most statutory social service benefits in
New Zealand require prior residence, people who are refugees will
not usually qualify for services such as the Unemployment or Domestic
Purposes Benefits until they have been resident in New Zealand for
a required period of time, often a period of some years. If correct
procedure is followed, however, these prior residence requirements
may be waived and an Emergency Benefit granted. This form of benefit
will normally provide the same rates and conditions (excepting residence
requirements) as apply to New Zealand residents.
40. Similarly,
public health care would be available to most asylum-seekers, including
those who have suffered torture, while they are going through the
refugee application process. Such people would not, however, be able
to access entitlements under the ARCI scheme that relate to their
pre-existing injuries. Under the Accident Rehabilitation and Compensation
Insurance Act 1992, cover for personal injury by accident is available
only for injury that occurs in New Zealand or to a person who is ordinarily
resident in New Zealand while he/she is overseas.
List of annexes
The
annexes are available for consultation in the files of the United
Nations Centre for Human Rights.
STATUTES
1. Accident
Rehabilitation and Compensation Insurance Act 1992
2. Children,
Young Persons and their Families Act 1989
3. Health
and Disability Commissioner Act 1994
4. Mental
Health (Compulsory Assessment and Treatment) Act 1992
5. Mutual
Assistance in Criminal Matters Act 1992
REPORTS
6. Ministerial
Inquiry into Management Practices at Mangaroa Prison
ADMINISTRATIVE
PROCEDURES
7. Corrections
Staff College Probationary Prison Officers' Course Outline: Acts and
Regulations - Crimes of Torture Act (inter alia)
8. Corrections
Staff College Intermediate Acts and Regulations Course: Module 5 -
Crimes of Torture Act 1989
CASES
9. Simpson
v. Attorney-General [1994] 3 NZLR 667