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UN Concerns Over Arbitrary Detention in New Zealand

UN expert group raises concern despite legal safeguards against arbitrary detention

AUCKLAND (7 April 2014) – The United Nations Working Group on Arbitrary Detention today expressed concern at specific areas of deprivation of liberty in New Zealand, and recommended several ways for improvement*.

At the end of their first official visit to the country, the human rights experts drew special attention to the wider use of preventive detention and the over-representation of Maori in the prison population, as well as loopholes in law and practices with regard to judicial proceedings involving persons with mental disabilities.

The independent experts noted that, overall, legislation and policy concerning deprivation of liberty in New Zealand is well-developed and generally consistent with international human rights law and standards, but urged the authorities to address their concerns.

“If a prisoner has fully served the sentence imposed at the time of conviction, equivalent detention cannot be imposed under the label of civil preventive detention,” said human rights expert Mads Andenas, who currently heads the Working Group. “The substantive grounds for detention must be defined with sufficient precision to avoid overly broad or arbitrary application.”

“The over-representation of Maori also poses a significant challenge,” Mr. Andenas stressed, noting that the Maori make up for more than 50 per cent of the prison population while they comprise some 15 per cent of the population of New Zealand.

The UN group urged the authorities to address the disproportionate negative impacts on Mâori of criminal justice legislation extending sentences or reducing probation or parole, while recommending a review of the degree of inconsistencies and systemic bias against Mâori at all the different levels of the criminal justice system.

“The authorities should continue searching for creative and integrated solutions to the root causes which lead to disproportionate incarceration rates of the Maori population in New Zealand,” he said.

During the visit, the Working Group paid particular attention to the situation of refugees, asylum-seekers and migrants in an irregular situation. In 2012, the Government accepted 690 refugees from third countries for resettlement and makes efforts to facilitate their integration in the country.

The expert group noted that New Zealand is using the prison system and police stations to detain irregular migrants and asylum seekers, although the country does not have a mandatory detention policy for asylum-seekers, refugees or migrants in an irregular situation.

“Detention of asylum-seekers, refugees and migrants in an irregular situation should normally be avoided and be a measure of last resort,” said Roberto Garretón, the other member of the Working Group’s delegation visiting New Zealand.

“Alternatives to detention should always be given preference. “Humane and cost effective mechanisms such as community release programmes can be very successful,” he underscored.

Concerning the detention of persons with mental or intellectual disabilities, the experts pointed out that that the legislative framework is not effectively implemented to ensure that arbitrary deprivation of liberty does not occur.

“Compulsory treatment orders are largely clinical decisions and it is difficult to effectively challenge such orders,” Mr. Andenas said. “Persons undergoing compulsory assessments are often unrepresented in practice, as they do not have access to legal aid.”

The Working Group also noted that, despite the increasing phenomenon of older persons staying in residential care, there is very little protection available to ensure that they are not arbitrarily deprived of their liberty against their will.

Lastly, the expert group expressed concern that a notable gap remains in relation to the legislative protection available to children aged 17 years. They are considered as adults for penal responsibility effects, tried as adults and, if condemned, are sent to adult prisons.

“Despite recommendations by the UN Committee on the Rights of the Child and the UN Committee Against Torture to extend the protection measures under the Children, Young Persons and Their Families Act 1989 (CYPF Act) to include 17- year-olds, this has not occurred,” Mr. Garretón pointed out. “We urged New Zealand to fully comply with the requirements of the Convention of the Rights of the Child and to withdraw its reservations.”

During the 15-day mission, the experts visited the cities of Auckland, Christchurch, New Plymouth and Wellington, where they engaged with representatives of the authorities and civil society. They also visited detention facilities, including prisons, police stations and mental health institutions, to meet in private with detainees, their families or representatives, and gathered first-hand information on their cases of deprivation of liberty.

The final report of the visit will be presented to the Human Rights Council in September 2015.


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