The Role of National Human Rights Institutions as a by lme37917


									 The Role of National Human Rights Institutions as a National Preventive Mechanism
          and the Issue of Independence: New Zealand’s Experience So Far

       Presentation to the National Human Rights Institutions/Treaty Body Workshop
                               Geneva, 26-28 November 2007.

                                     Joris de Bres
          Race Relations Commissioner, New Zealand Human Rights Commission

Ratification of the Optional Protocol to the Convention against Torture

New Zealand signed the Optional Protocol to the Convention against Torture in September
2003. In accordance with New Zealand’s policy that a treaty should not be ratified until any
legislation required to implement it has been passed, the Ministry of Justice investigated what
legislative changes would be required to give effect to the obligations in the OPCAT, and the
Crimes of Torture Amendment Bill was drafted to implement these. Funding increases were
also allocated to the designated agencies.

Crimes of Torture Amendment Act

The Bill was passed by Parliament in November 2006, amending the Crimes of Torture Act
1989 to include new provisions relating to visits by the UN Subcommittee for the Prevention
of Torture, National Preventive Mechanisms (NPMs), Central National Preventive
Mechanism and other miscellaneous provisions.

The key legislative changes enacted were to:
   - enable the Subcommittee to exercise in New Zealand the functions and powers
       provided for in the OPCAT, including the right to enter and inspect places of
       detention, and examine such information as is necessary for the proper performance
       of its functions;
   - authorise the Minister of Justice to designate various institutions as NPMs to monitor
       the prevention of torture in the particular places of detention that they are associated
   - extend the mandate of the Police Complaints Authority to enable it to inspect and
       monitor the treatment of persons detained in police cells or otherwise in the custody
       of the police;
   - require the institutions designated as NPMs to produce and disseminate a publicly
       accessible annual report on the exercise of their functions under the OPCAT;
   - provide that a central national preventive mechanism be appointed to co-ordinate the
       activities of the NPMs and maintain liaison with the Convention Subcommittee.

Designation of National Preventive Mechanisms

Following the passage of these legislative changes, New Zealand ratified OPCAT in March
2007, and the NPMs and Central National Preventive Mechanism were formally designated
by the Minister of Justice in June 2007. The designated NPMs are as follows:

  •   The Human Rights Commission – as the Central National Preventive Mechanism,
      which entails coordination and liaison with NPMs, identifying systemic issues, and
      liaising with the UN Subcommittee.
  •   The Office of the Ombudsmen – in relation to prisons, immigration detention facilities,
      health and disability places of detention, and youth justice residences;

  •   The Police Complaints Authority – in relation to people held in police cells and
      otherwise in the custody of the police;
  •   The Office of the Children’s Commissioner – in relation to children and young persons
      in youth justice residences;
  •   Visiting Officers appointed under Defence Force Orders (namely, the Inspector of
      Service Penal Establishments of the Office of the Judge Advocate General) – in relation
      to Defence Force Service Custody and Service Corrective Establishments;

Under the Crimes of Torture Act, the NPMs are to examine the conditions of detention and
treatment of those who are deprived of their liberty, and make recommendations for
improving conditions and treatment and for the prevention of torture. They are to report
annually on their activities.

The functions of the Central National Preventive Mechanism, as set out in the Act, are to
coordinate the activities of the NPMs and liaise with the Subcommittee. In carrying out these
functions it is to consult and liaise with NPMs, review their reports, identify systemic issues,
coordinate the submission of information to the Subcommittee, and make, in consultation
with NPMs, recommendations to government on any matter it considers appropriate.

Independence of NPMs

Article 18 of the OPCAT sets out criteria to ensure NPMs are independent. It requires an
NPM to be functionally independent; to have personnel with the necessary knowledge and
expertise; to be adequately resourced; and to strive for gender balance and adequate
representation of ethnic and minority groups. Article 18 also requires due consideration to be
given to the Paris Principles relating to the Status of National Human Rights Institutions.

The Crimes of Torture Act sets out the functions of NPMs, their required access to
information, places and people. Section 26 of the Act provides for the designation of NPMs,
and states that the Minister is required to have regard to Article 18.

The Human Rights Commission, Children’s Commissioner and Police Complaints Authority
are bodies known as ‘Independent Crown Entities’, meaning that while they receive state
funding, they have a basis in statute ensuring that they are independent of the government and
not subject to influence or easy dismissal by government Ministers. A Bill currently before
Parliament aims to further enhance the independence of the Police Complaints Authority,
including by increasing its membership, capacity and powers. The Ombudsmen, as ‘Officers
of Parliament’, are responsible to Parliament but are independent of the government of the
day. The final NPM, the Inspector of Service Penal Establishments, is part of the Office of
the Judge Advocate General, who is appointed by the Governor-General, is statutorily
independent, and is neither answerable to the Chief of the Defence Force, nor subject to
political direction.

Working as a National Preventive Mechanism

The appointment of a number of existing organisations takes advantage of their existing
knowledge and experience in regard to the places of detention for which they have
responsibility. There is also a level of public familiarity with these organisations, and
recognition of their independence, as well as established relationships with and understanding
of the authorities and places of detention that they are charged with monitoring.

The designation of existing, multiple mechanisms also creates challenges, which include:

•     Keeping a distinction between the existing complaints/investigation role, and the ‘non
      judicial’, preventive monitoring role – both in the operations of the NPM and in the
      minds of the public and the authorities. NPMs are approaching this issue in various
      ways. For example, the Ombudsman is maintaining a clear separation between its
      complaints work and OPCAT operations – with separate staff for each (although they
      will liaise closely).
•     Maintaining a level of cohesion and consistency, while recognising the distinct context
      each NPM is dealing with, and respecting the independence of the individual NPMs.

A further challenge in New Zealand is that the NPMs are all relatively small organisations. In
some cases, the NPM role represents a significant expansion of role and workload, and there
are some logistical and resource issues, particularly for the smaller organisations. However,
there is a definite commitment and genuine determination on the part of all NPMs to
implement OPCAT effectively.

Developing a Fully Functioning Monitoring System

While the NPMs have been established, developing a fully functioning monitoring system
may, at this stage, be seen as something of an evolving process. The approach being taken at
present is to put appropriate processes in place, get preventive monitoring visits underway,
and then to build on these as the practical needs and requirements become more apparent and
the relationships, capacity and processes become more developed. For example, the Police
Complaints Authority is initially visiting a ‘representative’ selection of places of detention, to
build a picture of the situation and conditions, and inform the development of their
monitoring programme. And while most of the NPMs are starting with a relatively small
staff, ways of drawing on or engaging relevant external expertise, are being considered.

Key Challenges

In its role as Central National Preventive Mechanism, the Human Rights Commission is
working with NPMs to address some of the issues raised above. Key activities include:

•     Convening regular meetings of all NPMs. To date, discussions have focussed on
      developing a common understanding of the OPCAT role, and how this is to be
      undertaken by each of the respective NPMs. A forum for all five NPMs to engage as a
      group with civil society (in addition to their individual engagement with NGOs) is also
      underway, and one meeting has been held to date. Working cooperatively with civil
      society is seen by all NPMs as crucial, particularly in terms of the expertise,
      information and ‘on the ground’ intelligence that civil society can offer.

•     Sharing information and developing resources. The Commission has produced a
      draft monitoring template and indicators to assist NPMs and ensure a measure of
      consistency and cohesion of preventive monitoring across all places of detention. The
      Commission is working with NPMs to develop these, in order to establish an agreed
      common baseline that can be adapted to suit the circumstances of the different places of
      detention. It is also intended to seek the views of both civil society and government
      agencies on these, for the sake of transparency and to ensure that the final tool is both
      effective and workable.

•     Review and coordination of reports. Initial monitoring activities are now getting
      underway, and the first annual reports of all NPMs will be published in 2008. The
      Commission will compile a joint report of the year’s activities. The Commission will
      be working with the NPMs to identify systemic issues, as well as any gaps in the
      monitoring regime, and how these might be addressed.

•   Liaison with the Subcommittee. This will be a key element of the Commission’s role,
    both in terms of informing the Subcommittee of the situation in places of detention in
    New Zealand, and seeking the support and advice of the Subcommittee in terms of
    developing an effective and robust preventive monitoring system in New Zealand. The
    Commission proposes to contact the Subcommittee at an early stage, and is in the
    process of preparing a letter and information to be sent to the Subcommittee before the
    end of the year.


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