COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
initial report of New Zealand (CAT/C/12/Add.2) was considered by the
Committee at its 126th and 127th meetings, on 13 November 1992 (see
CAT/C/SR.126, 127 and 127/Add.2).
report was introduced by the representative of the reporting State,
who informed the Committee that during the period under review, and
before and after that period, there had been no reports of any person
being subjected to an act of torture in New Zealand.
representative then provided an overview of how the Convention was
put into effect in New Zealand law. He explained that this operated
at three levels. First, statements of principle were contained in
the New Zealand Bill of Rights Act 1990, including its section 9 which
provided that "everyone has the right not to be subjected to
torture, or to cruel, degrading or disproportionately severe treatment
or punishment". Those principles formed the background against
which the laws of New Zealand were interpreted and implemented. Secondly,
there were provisions in the criminal law, particularly the Crimes
of Torture Act 1989, which prescribed offences and penalties for the
commission of torture. In this regard, he indicated that the Act defined
torture in terms that closely followed those of article 1 of the Convention.
It also provided the necessary jurisdictional basis for compliance
with the requirements of article 5 of the Convention and amended New
Zealand's extradition statutes so as to ensure that the principle
of "extradite or prosecute" contained in articles 7 and
8 of the Convention could be implemented. Thirdly, there were various
statutory, regulatory and administrative procedures for the independent
investigation of complaints of misconduct on the part of public officials,
including the police.
136. In addition,
the representative referred to some recent cases which demonstrated
how the New Zealand Bill of Rights Act 1990 had been applied by the
New Zealand courts, although none of those cases concerned article
9 of the Act on the right not to be subjected to torture.
the representative of the reporting State indicated that concern had
been expressed during the period of the Gulf War in 1991, with regard
to the application and interpretation of article 3 of the Convention
as it related to the treatment of persons arriving in New Zealand
from other countries. The New Zealand authorities had noted that,
in respect of refugee applicants, there was a certain lack of clarity
about the implementation of articles 2, paragraph 2, and 3 of the
Convention in relation to article 33 of the Convention relating to
the Status of Refugees. Nevertheless, the practice of the New Zealand
authorities was that no refugee applicant should be expelled or returned
to a place where there were substantial grounds for believing that
he would be in danger of being subjected to torture. New Zealand was
aware that its obligations under article 3 of the Convention were
not confined to persons who met the definition of a refugee but also
extended to persons with well-founded fears of torture on grounds
other than those listed in the Convention relating to the Status of
Refugees. For those individuals, special procedures were available
to obtain temporary or permanent residence on humanitarian grounds
in New Zealand or to appeal against deportation.
members of the Committee expressed appreciation for the excellent
report submitted by the State party and wished to receive more information
on the constitutional and legal framework for the application of the
Convention, in particular on the jurisdiction of courts of appeal
and special tribunals and on the appointment of their judges. They
also sought information on the number of persons who had died in prisons
and asked whether the Human Rights Commission of New Zealand could
investigate broader human rights problems other than those relating
regard to article 3 of the Convention, clarification was sought as
to the possibilities for an individual denied refugee status in New
Zealand on the grounds of national security to be expelled to a country
other than his own.
article 4 of the Convention, members of the Committee requested clarification
as to the role and powers of the Attorney-General with regard to instituting
proceedings for the trial and punishment of a person charged with
torture. They also sought further information on whether any statute
of limitations existed for the pursuit of complaints by the Police
Complaints Authority and the cases dealt with by that Authority.
141. In connection
with articles 5 and 7 of the Convention, further information was sought
on the implementation of their provisions, particularly with regard
to the application of the principle of universal jurisdiction.
the implementation of article 6 of the Convention, members requested
clarification on the provisions of sections 315 and 316 (5) of the
Crimes Act of 1961, in particular with respect to the permitted length
of administrative detention and the authority responsible for monitoring
activities conducted by the police in accordance with those provisions.
They also asked whether incommunicado detention existed.
information was requested on the implementation of articles 8 and
9 of the Convention and, in particular, how the draft bill on mutual
assistance in criminal matters met with the State party's obligations
under article 9 of the Convention.
144. In connection
with the implementation of article 10 of the Convention, members referred
to the training and educational needs of lawyers, judges, border police
and medical personnel on matters relating to torture. In addition,
the usefulness of publicizing opportunities for the rehabilitation
of torture victims was pointed out. It was also asked whether the
Committee could receive a copy of the Police Regulations 1959 and
the Police "Values Statement".
article 11 of the Convention, further information was sought on the
legal grounds for deciding that a person who was mentally disordered
should be held involuntarily in a mental care institution and the
procedures available for reviewing such cases. In this connection,
a copy of the Mental Health Bill was requested. With regard to the
placement of children or young persons in detention, clarification
was sought as to the definition of a child, young person and adult.
146. In respect
of article 13 of the Convention, further information was requested
on the complaint mechanisms available to victims of torture by a public
reference to article 14 of the Convention, members of the Committee
requested further information on the compensation and rehabilitation
offered to victims of torture. In this regard, they sought clarification
as to the compatibility of the State party's reservation to this article
with article 19 (b) of the Vienna Convention on the Law of Treaties.
They also requested clarification on the role of and criteria applied
by the Attorney General in actions relating to the awarding of compensation.
In addition, they wished to know whether civil and criminal actions
for compensation could be brought simultaneously, whether a ceiling
had been set on compensation and whether survivors of torture who
had found asylum in New Zealand had the right to receive medical rehabilitation.
article 15 of the Convention, reference was made to section 20 of
the Evidence Act 1908 which gave a judge the discretion to admit a
confession in evidence notwithstanding that a threat had been held
out to the person confessing and it was pointed out that a threat
could constitute torture.
to questions raised by members of the Committee, the representative
of the reporting State explained that judges of the High Court and
Court of Appeal were appointed by the Governor General. Under New
Zealand law, the distinction between serious and less serious crimes
depended on the court before which a case was brought; in any event,
torture was a crime that would be judged by a High Court. The Court
of Appeal was a permanent body consisting of six members, three of
whom heard each case, and it was competent to interpret points of
law or hear appeals against sentence. Jury trials were compulsory
for torture offences. The representative also stated that he had no
figures on the number of deaths in prison but noted that the number
of suicides in prison had declined considerably from 1985 to 1991,
apparently because of improved conditions for prisoners in difficulty.
There had been five deaths by suicide in 1991. In addition, he indicated
that the Human Rights Commission of New Zealand actively promoted
regard to article 3 of the Convention, the representative considered
that there was no contradiction between article 3 of the Convention
and New Zealand's national security regulations. He stated, in particular,
that provisional regulations had been introduced between 16 January
and 30 April 1991 owing to the Gulf War. During that period two persons
had been sentenced to expulsion but detained pending a review of their
case. In addition, he indicated that the legal basis for the non-refoulement
of persons likely to be tortured if sent back to their country was
contained in section 10 of the Crimes of Torture Act and that information
booklets on that requirement had been prepared for the use of frontier
article 4 of the Convention, the representative explained that the
purpose of requiring the Attorney General's consent before proceedings
could be brought under the Crimes of Torture Act was to prevent abuses
but that, in the case of torture, proceedings under that Act were
mandatory. He also explained that the Police Complaints Authority
consisted of a lawyer appointed by the Governor General and supporting
staff. At present the Authority comprised a retired High Court judge,
a High Court judge and three investigators. The Authority was empowered
to receive complaints and could take action on its own initiative
if it considered that a death or serious injury involving a police
officer should be investigated. With respect to the number of cases
dealt with by the Authority, he indicated that 462 investigations
had been conducted over a period of two years, that two police officers
had been brought to trial and one had been convicted. He also indicated
that 52 other complaints had been upheld but no proceedings initiated
and that other sanctions could be imposed, such as psychological assistance
for police officers and reprimands.
to article 5 of the Convention, the representative indicated that
it would be contrary to New Zealand's established legal practice to
establish jurisdiction to deal with offences on the basis of the nationality
of the victim.
153. In respect
of article 6, the representative informed the Committee of safeguards
to which arrests were subject. He also stated that in practice any
person arrested was brought before a court within 24 hours, that the
police received appropriate training and respected the law on the
declaration of rights and that the practice of holding persons incommunicado
did not exist in New Zealand.
to questions raised in connection with article 8 of the Convention,
he explained, inter alia, that the Crimes of Torture Act provided
for the competence of New Zealand authorities to bring proceedings
against anyone suspected of having committed an offence under article
4 of the Convention and who happened to be in New Zealand, regardless
of his nationality.
article 10 of the Convention, he provided information on the training
handbooks and other publications prepared for or distributed to the
police, prison personnel and medical and nursing personnel to educate
them about matters relating to the difficult situation of refugees
or to prevent any form of ill-treatment and torture.
156. In respect
of questions raised with regard to article 11 of the Convention, the
representative informed the Committee that the new Mental Health Act
of 1 November 1992 limited compulsory treatment in psychiatric hospitals,
defined very carefully the rights of patients and provided for legal
remedies. He also explained that under the Children, Young Persons
and Their Families Act, a "child" was someone under the
age of 14 and a "youth" was someone over 14 but less than
17 who had never married.
regard to article 14 of the Convention, the representative indicated
that the reservation entered by New Zealand was considered by his
Government to be compatible with the purpose and goal of the Convention
and not contrary to international law. He also explained the procedure
in place for accident compensation, and stated that the term accident
covered rape and torture and that such compensation did not prejudge
Conclusions and recommendations
Committee expressed its gratitude for the report, its presentation
and the clarifications provided by the representative of New Zealand.
It considered the report to be comprehensive and objective. It also
expressed its satisfaction that the report indicated that no one in
New Zealand had been convicted of or charged with committing an act
of torture and that there had been no report of torture having taken
place in New Zealand, either in the period under review or before
or since that time.
Committee considered that the articles of the Convention seemed to
be incorporated in New Zealand's legislation, specifically in the
Crimes of Torture Act of 1989, which had been promulgated in connection
with New Zealand's ratification of the Convention.
Committee during its discussions raised the issue of the State party's
reservation to one of the core articles of the Convention, article
14, regarding compensation for victims of torture. The Committee expressed
the hope that the New Zealand authorities would review that reservation
to ensure its full compliance with the articles of the Convention.