Legislation Regarding Zaoui Concerns UN
Committee Against Torture Thirty-second session
19 May 2004
Consideration Of Reports Submitted By States Parties Under Article 19 Of The Convention
The Committee considered the third periodic report of New Zealand (CAT/C/49/Add. 3) at its 604th, 607th and 616th meetings, held on 11, 12 and 19 May 2004 (CAT/C/SR.604, 607 and 616), and adopted the following conclusions and recommendations.
The Committee welcomes the third periodic report of New Zealand, which was prepared in accordance with the Committee’s guidelines. It notes, however, that the report was submitted with a three years delay.
The Committee welcomes with appreciation the additional written and oral information provided, as well as the attendance of a high-level delegation, which demonstrates the State Party’s willingness to maintain an open and fruitful dialogue with the Committee.
The Committee notes with appreciation the following:
The adoption of the 1999 Extradition Act, responding to the Committee’s previous recommendations;
The cooperation undertaken with the United Nations High Commissioner for Refugees, and the willingness to comply with their guidelines and recommendations;
The fact that the Mangere Accomodation Center can be considered more of an open center than a detention center;
The Police Detention Legal Assistance Scheme, providing for persons in police custody to obtain initial free legal advice;
Legislative and administrative developments enhancing better compliance with the Convention, in particular the 2000 Protocol between the Department of Corrections and the Ombusdman’s Office, the 1998 amendment to the Mutual Assistance in Criminal Matters Act, and the 2000 International Crimes and International Criminal Court Act;
Measures taken to improve the effectiveness and strengthen the independence of the Police Complaints Authority;
The efforts undertaken to promote a positive relationship between the Police and Maori;
The efforts undertaken to establish new Child, Youth and Family Residential Facilities;
The ongoing elaboration of a national plan of action on human rights by the Human Rights Commission;
The declared intent to withdraw reservations to the Convention against Torture and the Convention on the Rights of the Child, and to ratify the Optional protocol to the Convention.
The Committee expresses concern about:
The fact that the immigration legislation does not incorporate the non-refoulement obligation provided for in article 3 of the Convention;
The significant decrease of the proportion of asylum seekers who are immediately released unrestricted into the community upon arrival, and the detention of several asylum seekers in remand prisons, with no segregation from other detainees;
The process of issuing a security risk certificate under the Immigration Act, which might potentially lead to a breach of article 3 of the Convention in that it enables the authorities to remove or deport a person deemed to constitute a threat to national security, with no obligation to give detailed reasons or to disclose classified information to the concerned person, limited possibilities of effective appeal, and the fact that the Minister of Immigration has to decide within three working days whether to remove or deport the concerned person;
Cases of over-prolonged non voluntary segregation (solitary confinement), as the prolonged and strict conditions of such a detention may amount, in certain circumstances, to acts prohibited by article 16 of the Convention;
The low age of criminal responsibility, and the fact that juveniles are sometimes not separated from adult detainees and have been detained in police cells, due to a shortage of Child, Youth and Family Residential Facilities;
The findings of the Ombudsman regarding investigations of alleged staff assaults on inmates, in particular regarding the reluctance to confront such allegations promptly, and the quality, impartiality, and credibility of investigations.
The Committee recommends that the State party:
Incorporate in the immigration legislation the non-refoulement obligation contained in article 3, and consider establishing a single procedure in which there is first an examination of the 1951 Convention grounds for refugee status, to be followed by the examination of other possible grounds for the grant of complementary forms of protection, in particular under article 3 of the Convention against Torture;
Ensure at all times that the fight against terrorism does not lead to a breach of the Convention and undue hardship imposed on asylum seekers, and establish a time limit beyond which detention and restrictions on asylum seekers may not be continued;
Take immediate steps to review the legislation relating to the security risk certificate, in order to ensure the effectiveness of the appeal made against the decision to detain, remove or deport a person, extend the time frame given to the Minister of Immigration to adopt a decision, and ensure full respect of article 3 of the Convention;
Reduce the time and improve the conditions of non-voluntary segregation (solitary confinement) that can be imposed on asylum seekers, prisoners and other detainees;
Implement the recommendations already made by the Committee on the Rights of the Child in paragraphs 30 and 50 (CRC/C/15/Add.216);
Report on the results of the development strategy aimed at ensuring that minors are not subjected to unreasonable searches;
Carry out an inquiry into the events that led to the decision of the High Court in the Taunoa and al. case;
Inform the Committee about the results of the action taken in response to the concern expressed by the Ombudsman regarding investigations of staff assaults on inmates.
The Committee welcomes the State party’s willingness to ratify the 1954 Convention relating to the Status of Stateless Persons, and the Convention relating to the Reduction of Statelessness, and recommends it to ratify these instruments in a timely manner.
The Committee recommends that the State party disseminate widely the Committee’s conclusions and recommendations, in appropriate languages, through official websites, the media and non-governmental organizations. The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 7 b), c), d) and h) above.
The Committee, considering that the third periodic report also includes the fourth periodic report due on 8 January 2003, invites the State party to submit its fifth periodic report on 8 January 2007.