Chapter 11: The rights of people who are detained
Nga tika o nga tangata mauhere

Everyone has the right to life, liberty and security of person.
(Universal Declaration of Human Rights, Article 3)

No one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment.
(Universal Declaration of Human Rights, Article 5)[1]

1. Introduction — Timatatanga

Detention raises fundamental issues of human rights. A key reason for human rights protections is to mediate the exercise of state power over citizens. State power is at its greatest when citizens or others are detained by the State, and people in detention are extraordinarily vulnerable to abuses of that power. Furthermore, people in detention are drawn disproportionately from sectors of society that are already vulnerable (e.g., the National Study of Psychiatric Morbidity in New Zealand Prisons ( 1999) indicates a significantly higher rate of mental illness in prisons than in the general community).

Detention occurs where a person is not free to leave a particular place. This wording is part of the test stated by the Court of Appeal in R v Koops[2] for deciding whether questioning a suspect in a criminal investigation constitutes detention for the purpose of section 22 of the New Zealand Bill of Rights Act 1990 (BoRA)[3]. The use of the word 'detention' in this chapter thus covers a very wide range of situations in which liberty has been restricted for a very wide range of reasons. Because of this diversity, each particular context has been dealt with in a separate section.

Detention is accepted by the community as necessary in some circumstances. The two main reasons for detaining people are:

• to investigate or punish criminal offending
• to protect the safety of vulnerable individuals or the community.

This chapter focuses upon the human rights issues raised when people are detained in:[4]

• prisons
• military detention
• mental health facilities
• secure care facilities for people with intellectual disabilities
• police cells
• youth justice facilities.

The human rights issues raised in the detention of refugees and asylum seekers are considered in Chapter 12: The right to asylum. This report does not discuss further the issue of detention for the purpose of investigating criminal offences. The case law in this area is reasonably well developed.

2. International context — Ki ngā kaupapa o te ao

The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), the Convention on the Rights of the Child (UNCROC) and the Convention relating to the Status of Refugees (Convention on Refugees) all make provisions for the rights relevant to detention. These rights include:

• everyone has the right to liberty and security of the person[5]
• no one shall be deprived of his or her liberty except in accordance with law[6]
• everyone, including refugees,[7] has the right to freedom of movement[8]
• no one shall be subject to arbitrary arrest or detention [9]
• following arrest, a range of rights are recognised in ICCPR, including the right to be informed of the reason for the arrest and the right to test the lawfulness of any arrest or detention[10]
• all persons deprived of liberty shall be treated with humanity and respect for the dignity of the human person[11]
• accused persons (i.e., remand prisoners) shall, except in exceptional circumstances, be kept separate from convicted persons and shall be treated in a manner appropriate to their status[12]
• no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment[13]
• no one shall be subjected without his or her free consent to medical or scientific experimentation[14]
• the Government must take all effective legislative, administrative, judicial and other measures to prevent acts of torture in New Zealand and on its ships and aircraft[15]
• the arrest, detention or imprisonment of children shall be used only as a last resort and for the shortest appropriate period of time [16]
• the Government must take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical and mental violence, injury, abuse, neglect and maltreatment by those who have the care of children[17]
• juvenile persons accused of criminal offences shall be separated from adults[18]
• children who are detained shall be treated in a manner that takes into account the needs of persons of their age and shall have the right to maintain contact with their family[19]
• where a child is separated from his or her family as a result of being detained or because one or both parents are detained, the child shall be provided (upon request) with the essential information concerning the whereabouts of the absent members of the family, unless the information would be detrimental to the well-being of the child.[20]

New Zealand has made several reservations to the Conventions that apply to the issue of detention. These reservations concern the mixing of juvenile and adult prisoners; ex gratia payments to people who suffer a miscarriage of justice by being punished following conviction that is later reversed or the person is pardoned; and compensation for torture.

As well as the instruments discussed above, the principles of which are (subject to any reservation) binding upon New Zealand, there are other international instruments that, though not binding, provide guidance on various aspects of detention. These instruments are discussed in appropriate sections of this chapter. The human rights standards in these instruments may over time develop into binding obligations in customary international law. Even without being binding, however, these instruments have strong moral weight when assessing the laws and practices that apply to detention in New Zealand.[21]

International accountability and reporting procedures

Of these instruments, the three core human rights treaties (ICCPR, CAT and UNCROC) provide for international review by a United Nations committee of experts through a reporting procedure. The committee's reports provide a measure of how well a country is observing its international obligations.

The ICCPR also guarantees (in Article 3(a)) that a person is entitled to an effective remedy for a violation of the rights and freedoms in the ICCPR. An Optional Protocol to ICCPR allows individuals to complain directly to the United Nations Human Rights Committee (UNHRC) about a rights violation if they have exhausted all their domestic options for remedy.

New Zealand legislation

The key piece of human rights legislation dealing with detention in New Zealand is the BoRA. Section 22 provides that everyone has the right not to be arbitrarily arrested or detained. Section 23 sets out the rights of those who are arrested or detained. In respect of detention, these include the right to be treated with humanity and with respect for the inherent dignity of the person. Section 9 of the BoRA provides the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. Section 27(1), which provides for the right to natural justice (including fair procedure), and section 21, which provides protections in relation to search and seizure, are also relevant to the issue of detention.

The Crimes of Torture Act 1989 also applies to all forms of detention. Other legislation relating to human rights and detention in relation to particular forms of detention are discussed in the appropriate parts of this chapter.

New Zealand case law

A review of recent cases that consider detention indicates that our courts see New Zealand's international obligations as important tools for interpreting legislation; and that, where possible, they are interpreting legislation so that it is consistent with the basic rights and freedoms relating to detention that are recognised in the BoRA. Some examples are highlighted below.

The Court of Appeal has recently recognised the importance for the courts of the guidance provided by the international instruments to which New Zealand is a party.[22]The Court of Appeal considered preventive detention in R v D [23], where it was argued that it was inconsistent with ICCPR. The Court said that statutes could be interpreted as inconsistent with international obligations only if the wording of the statute allowed this. In Attorney-General v Refugee Council of New Zealand [24] two of five Court of Appeal judges said that taking the Refugee Convention into account was mandatory when exercising powers under section 128 of the Immigration Act 1987. In Innes v Wong the High Court referred to the need to consider a number of international instruments[25] and to the inherent right recognised by those instruments of respect for the human dignity of all persons, including those suffering from a mental disability.

3. Prison detainees — Tangata mauhere

International standards relating to prisons

As well as the provisions of the core human rights treaties discussed above, the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment and the UN Standard Minimum Rules for the Treatment of Prisoners are non-binding instruments for the recognition and protection of the rights of all those detained. They provide minimum standards for the State in its detention or imprisonment of persons. The Rules have played a significant part in the development of new provisions in the Corrections Act 2004.

New Zealand context

The Penal Institutions Act 1954 provides for the administration of prisons. This Act will be replaced by the Corrections Act 2004 when it comes into force (see below). The Habeas Corpus Act 2001 is the means by which an individual may challenge the legality of his or her detention. It is a check on the State's power to detain, as it requires the release of an individual who is detained unlawfully.

The Parole Act 2002 controls the rules relating to and the conditions for the release of prisoners on parole. The Sentencing Act 2002 establishes the principles and purposes of sentencing. The Bail Act 2000 determines the rules relating to bail and allows for the imposition of conditions and restrictions on its granting.

This legislation is supplemented by a regulatory framework that includes the Penal Institutions Regulations 2000, the Parole Regulations 2002 and the Sentencing Regulations 2002. Other key documents include operational standards, compliance requirements and policy and procedures manuals.[26]

New legislation

The Corrections Bill was introduced into the House in March 2003. It received its first reading in April and was referred to the Law and Order Committee. The Committee considered 41 submissions from individuals and organisations and received advice from Department of Corrections officials before reporting back the Bill (without amendments) in December 2003. The Bill was passed at its second reading and, as at May 2004, was going through the final stages of the legislative process.

The Bill provides for a new legal framework for the corrections system that covers the administration of custodial sentences and remands, community-based sentences, home detention and parole. Submissions on the Bill identified a number of issues that also appeared in the Law Commission's review of detention for this report, and which are relevant to human rights. The Howard League for Penal Reform expressed disappointment in the Bill for what it saw as legitimising deteriorating conditions in the prison system, and putting security and control above rehabilitation and reintegration.

The issue of greatest concern for many submitters was the proposal to end contractual arrangements that allow for the private management of prisons. Other questions of particular significance for human rights include the need for an independent prison inspectorate, the definition of statutory visitors, and the provision of minimum entitlements. Two of these have recently been the subject of comment by the UNHRC (2002).

• Private management of prisons: in its concluding observations on New Zealand 's 4th periodic report in 2002, the UNHRC expressed concern about the impact of privatising prison management on the protection of important rights of people deprived of their liberty by the State.
• Independent prison inspectorate: at the same time, the UNHRC also expressed concern about the lack of 'any effective day-to-day monitoring mechanisms to ensure that prisoners are treated with humanity and respect for the inherent dignity of the human person'.

Several amendments were made to the Bill at its second reading. Those that are particularly relevant to human rights include:

• The Bill should include a reference to the United Nations Standard Minimum Rules for the Treatment of Prisoners.
• To enhance the transparency of the corrections system, the Annual Report of the Department of Corrections should include a report on the activities of inspectors of corrections.
• Non-voluntary segregation decisions should be reviewed at least monthly, rather than every three months, and extension beyond three months must be approved by a Visiting Justice.

The Corrections Bill confirms the role of the Ombudsmen in prisons and expands the role of Visiting Justices. The new legislation is expected to come into force in early 2005.

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