Crimes of Torture Amendment Bill — Second Reading 
Crimes of Torture Amendment Bill — Second Reading 
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Crimes of Torture Amendment Bill 
Second Reading 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Crimes of Torture Amendment Bill be now read a second time 
. This bill has been closely examined by the Foreign Affairs Defence and Trade Committee. I start by sincerely congratulating the committee on its very careful consideration of both the bill and the detailed public submissions on it. I inform the House that the committee’s amendments are supported by the Government and I genuinely believe they will enhance the effectiveness of the legislation. 
 The committee received submissions from a number of human rights non-governmental organisations and practitioners Crown entities with a human rights focus and a range of other community groups. These submissions represented a range of views about the domestic implementation of international treaties and measures to prevent torture and ill-treatment in places of detention in New Zealand. I was pleased to note that all of the submissions supported this Government’s initiative to ratify the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. To have unanimous support in submissions for anything is relatively unusual in this jurisdiction. 
This is a significant bill for New Zealand as it will enable this country to comply with its obligations under the optional protocol. I am pleased to let the House know that the optional protocol entered into force on 22 June this year after gaining the requisite number of ratifications. The optional protocol is the culmination of over two decades of work by the United Nations and others and it establishes a unique monitoring system for preventing torture and ill-treatment in places of detention. 
The bill enables New Zealand to comply with the optional protocol. Upon the enactment of the protocol New Zealand will be in a position to ratify it. The bill is another illustration of this Government’s leadership in international human rights and affirms New Zealand as a country that is committed to ensuring that the worst human rights abuses are prevented wherever they are found around the world. 
The optional protocol provides for a two-tiered approach to the prevention of torture and the bill gives effect to that approach. The first tier is the international visiting body—a subcommittee of the United Nations Committee against Torture. The bill enables the subcommittee to visit places of detention in New Zealand and exercise its powers and functions as set out in the optional protocol. The second tier consists of a system of regular visits undertaken by national bodies to places of detention. Those bodies are called national preventive mechanisms. New Zealand already has the requisite independent visiting bodies such as the Ombudsman and the Police Complaints Authority. Those existing bodies enable compliance with the optional protocol in a cost-effective manner. The nominated institutions have been identified because they already possess the capability to inspect and monitor the treatment of persons detained in New Zealand. 
I now turn to the committee’s recommended amendments. As noted earlier the Government supports all of the committee’s recommendations. As I said I am confident that the amendments will improve the operation and functionality of the legislation. The amendments generally serve to clarify the provisions in the bill as introduced and some of them are of a technical nature. There are also some amendments of substance that I will briefly address. 
The committee has recommended that the bill make it clear that domestic institutions appointed as national preventive mechanisms carry out existing powers and functions when acting under this bill. This will ensure that these institutions enjoy the full array of their powers when acting to prevent torture under the bill. The committee has also recommended that a new clause be inserted into the bill that provides national preventive mechanisms with the same protections privileges and immunities that they enjoy in relation to the exercise of their powers and functions under other legislation. This is an important amendment because it will ensure in accordance with the optional protocol that national preventive mechanisms are able to exercise their powers in a fearless manner to prevent torture. 
An improvement to the reporting requirements of the national preventive mechanisms has also been proposed by the committee. The amendment requires national preventive mechanisms that are officers of Parliament to report directly to the House of Representatives instead of to the responsible Minister. This change of course preserves the constitutional status of officers of Parliament such as the Ombudsman. I think this move is highly desirable. 
The committee has further recommended that other national preventive mechanisms continue to report to the responsible Minister but it has added a requirement that the Minister must present a copy of that report to the House of Representatives. This amendment will I believe ensure dialogue between the national preventive mechanisms the executive and Parliament and will result in greater accountability throughout the reporting process whilst maintaining consistency with the existing reporting requirements. This amendment is a significant improvement to the arrangements as proposed in the original bill. 
The committee has recommended that the confidentiality provisions in the bill be amended to expressly provide that information about an identifiable individual cannot be disclosed without that person’s express consent. I commend this change because it will ensure that appropriate protection is provided to personal information. Again that is desirable. 
In conclusion I again thank all of the members of the Foreign Affairs Defence and Trade Committee for making valuable contributions that have resulted in useful improvements to this bill. This process is a good example of the value of constructive select committee engagement. As I reach the end of my remarks I again thank all the people who took the time and effort to make submissions to the committee. I think they too contributed to the improvement of this bill. 
The bill is an illustration of New Zealand’s strong and ongoing commitment to the protection and promotion of international human rights. This bill provides an example to all countries of how to ensure compliance with the optional protocol with the goal of preventing torture. I commend the Crimes of Torture Amendment Bill to the House. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am pleased to take a call on the second reading of the Crimes of Torture Amendment Bill. In June 1987 the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment entered into force. An optional protocol was added known as the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment which was adopted by a vote in the United Nations General Assembly on 18 December 2002 and signed by New Zealand on 24 September 2003. This bill implements the optional protocol to that convention and of course it is no surprise that New Zealand was foremost among those countries involved in the development of the protocol in the first place and among the group of countries that are foremost in designing bills to implement the provisions of the protocol. 
The protocol provides further measures to achieve the purposes of the convention and its objective is to establish a system of regular visits by international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel inhuman or degrading treatment or punishment. These things I suppose seem somewhat strange to us sitting as we do in a wonderful country like New Zealand a great little democracy where the rule of law is observed. Generally speaking we have provisions in the law already to ensure that New Zealanders or those people who are detained in certain places in our country are generally accommodated or catered for. 
The bill’s three key provisions establish a subcommittee of the existing United Nations Committee against Torture to regularly visit places where people are deprived of their liberty and to make recommendations to the Government concerning the protection of such persons. A provision also enables the subcommittee to exercise New Zealand’s functions and powers as set out in the protocol. The subcommittee is permitted to visit any place under the Crown’s jurisdiction and to have unrestricted access to such information as is necessary for the proper performance of its functions. 
At the second level as the Minister has already traversed the protocol requires each State party or Government to have at the domestic level at least one visiting body for the prevention of torture and the functions of that body known as the national preventive mechanism are basically set out to examine the conditions of detention applying to those detainees in places of detention. The body is also required to provide at least a written report to the Minister of Justice each year on the exercise of its functions. The third level sets up the central national preventive mechanism with accompanying responsibilities. 
As I said earlier in this discussion what we are doing here tonight is extremely important obviously and National supports the ratification of the protocol. It is proper that as a democracy observing the rule of law we implement the provisions. We need to remind ourselves that we have an enviable record on human rights because it is not the case in a number of other States and countries in the world. We are a leader in human rights and as a colleague of mine Dr Richard Worth said in the first reading regarding the issues relating to the right not to be tortured that right is “one of the core non-derivable human rights” and it is therefore of the highest priority. 
Just before I go to some of the points that National members made in the first reading I tell members that the Minister has traversed the changes that were recommended in the Foreign Affairs Defence and Trade Committee. It is helpful obviously that submissions to the committee were in favour of the bill. As the Minister said there were a number of submissions. Basically we considered a wide range of issues including the general implementation of the protocol; the role competence and independence of national preventive mechanisms; and ministerial discretion to appoint national preventive mechanisms. 
Just in relation to that last issue I tell members there was some concern amongst submitters that national preventive mechanisms are not designated or established by this bill—I am sure our colleague from the Green Party will have a comment to make on that—they are appointed by the Minister. The majority of the committee however are confident that the national preventive mechanisms measures contained in the bill are consistent with the optional protocol which does not require those mechanisms to be appointed by statute. We do recommend though in line with developments since the protocol was introduced that a new section be amended to provide that the Minister designate national preventive mechanisms no later than 1 year after the optional protocol is ratified by New Zealand. 
The other important point that was also referred to by the Minister concerns the reporting requirements. The committee looked at those requirements which have been improved to ensure greater accountability and transparency. That is important especially to a democracy like ours. As I indicated earlier our country is foremost in human rights. We have taken steps of our own accord to make sure that the kinds of abuses that are seen in other places around the world are certainly never going to be seen in our country. The optional protocol and the bill that we now bring forward to implement it sets that as a certainty. 
My colleague Richard Worth together with Simon Power in the first reading made some comments that I think are worth repeating. The first was around the fact that National was concerned—and we still remain concerned—that United Nations committees from our point of view in looking at them from a distance and from our democratic position do not always seem to focus on the most pressing of human rights violations. We would hate to see any UN bureaucracy set up in New Zealand when perhaps resources such as they might be—and perhaps my colleague Tim Groser will have something to say about that—might dictate that the main focus of such a committee should be on those countries and States in the world where matters of torture and cruelty to people in places of detention really do exist. As I say New Zealand is a leader on human rights and although the committee is entitled to come here when it wants I would like to think that proper focus is put where it is absolutely needed. 
In closing I tell the House it is proper that New Zealand ratifies the protocol. We along with other like-minded nations act as a role model. The persuasive element in our signing up to the protocol is very important and that we do so acts as a beacon for those countries who do not observe human rights and such protocols. It is the kind of standard that we as a democratic nation in the international community expect for all citizens of the international community. 
DIANNE YATES (Labour) 
: 
 I just remind people that we are talking about the Crimes of Torture Amendment Bill and the report back on it from the Foreign Affairs Defence and Trade Committee. The introduction to the commentary on the bill states: “The Crimes of Torture Amendment Bill confirms New Zealand’s commitment to the protection and promotion of fundamental human rights by providing a regime that enables New Zealand to comply with its obligations under the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.” As the Minister has said this optional protocol entered into force on 22 June 2006. 
I thank the select committee for the work it has done on this bill. The bill has gone through the usual treaty-making process whereby it was referred to the Foreign Affairs Defence and Trade Committee which has the authority then to defer those treaties that are not relevant to it to other select committees. In this case the treaty was totally within the ambit of the Foreign Affairs Defence and Trade Committee and was dealt with by that committee. 
The committee worked very very well and I thank the member opposite for the comments she has just made. Because we in New Zealand become part of this optional protocol because we are a democratic country and because hopefully we will not experience cruel inhuman or degrading treatment or punishment in our country let us not fool ourselves that those things will not continue to happen in the world. But as a member opposite said we are by signing up to this agreement setting an example and making it clear to other countries that this is how the matter should be dealt with; also that those countries that are democratic open and transparent deplore such treatment of citizens of any other country or of New Zealand citizens should they be in any other country. I think those points made by the member opposite were particularly relevant. It is also important in that they show how our committee has worked together. I do not think anyone in New Zealand would agree that torture and other cruel and degrading treatment is acceptable. 
We also want to thank the 23 submitters on the bill who were concerned about the national preventive mechanisms. They wanted to make sure that the processes we have in New Zealand conform not only with the schedules to the bill but also with New Zealand protocols—that they are transparent so we have national preventive mechanisms and inspection processes that are transparent. Where appropriate as has been mentioned by the Minister the people involved should report to Parliament should that be part of their normal processes or otherwise to the Minister and their reports should all be tabled in Parliament. It should be transparent and open. That was one thing the submitters agreed on and pointed out to the committee and their views were taken on board. 
I point out that the national preventive mechanisms are dealt with in a generalised way within the bill and that there are powers of the Minister within that. But the Green member wanted the organisations to be specifically mentioned in the bill. There are difficulties with that of course because organisations can change. We did not want to have to come back and change the legislation if an organisation ceased to exist or was no longer functioning in that particular way. So the committee as a whole thought that the clauses around the national preventive mechanisms as we adjusted them were adequate and would serve the purpose. 
There was some discussion about the health and disability services and the committee asked questions about whether the national preventive mechanism should come under the Health and Disability Commissioner. It was agreed that it should be with the Office of the Ombudsmen and that the Ombudsman’s reporting processes should continue as at present. Those were matters that the select committee looked at in a fairly detailed way in order to come up with its final conclusions. 
As we have said there were discussions about visits by the national preventive mechanisms and the Minister has pointed out that we were also especially concerned about the definition of a place of detention. We wanted to know too that a place of detention—and I thank the member opposite who has just spoken because she was the person who asked about this and had the matter clarified—refers to both public and private facilities whether we should have both in New Zealand whether a place of detention in New Zealand is not only one that is within New Zealand territory but also one that is under the jurisdiction of New Zealand and that the latter whether public or private would be open for inspection by the national preventive mechanism people. That was clarified and it was an example of a select committee working together to bring about the ratification to allow New Zealand to join in with this treaty. 
As I said this was one of the areas where we parliamentarians in New Zealand were in agreement. It was perhaps one of the easiest treaties we have had to deal with because as I have said before I do not think anyone in New Zealand thinks torture is a good idea. We dealt with how the select committee goes about the processes the processes within New Zealand and the protocols on how we treat people in prisons police cells and within medical institutions. It is always good for a country such as ours to examine its own processes because we often make assumptions that New Zealand is almost above other countries in what we do—and it is that because we are constantly vigilant. We constantly look at ourselves in the light of international benchmarks and this process has been one way of us doing that. 
Some of the submissions were on areas not covered by the bill such as around health and other issues but they are matters we constantly have to look at within a democracy. Democracies do not just exist; they have to be carefully maintained and monitored. We have to constantly make sure that we are transparent that our processes are transparent and that our public institutions are transparent. 
Once again I thank the select committee for the hard work that has gone into this bill and into other treaty-making processes. It is good to have on our select committee people who have experience not only as politicians but also in terms of negotiating such treaties and who know in more detail how they come about through the actual processes. Once again a big thank you to everyone who has been involved. We look forward to the smooth passage of this legislation through the House. 
JOHN HAYES (National—Wairarapa) 
: 
 Mr Deputy Speaker— 
Hon Member 
: He’s nimble that John! 
JOHN HAYES 
: Yes he is nimble. He is nimble just like those glib phrases that came from Dianne Yates the chair of the Foreign Affairs Defence and Trade Committee whom all those people out in New Zealand have just been listening to—one would have thought that this House had been doing something really important. I stand here tonight in support of the Crimes of Torture Amendment Bill because along with my colleagues in the National Party I have a total abhorrence of acts of torture and other cruel inhuman or degrading treatment or punishment. We also have an abhorrence of people who talk a load of nonsense. 
As we were thinking about whether to support this legislation we decided it was really important for New Zealand to support international mechanisms such as the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment the International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child in proscribing violations of human rights. 
Very early on in the life of our Parliament and early in the experience of people like myself and my colleague Tim Groser the select committee looked at those issues. Looking back I feel that the Government should have encouraged our select committee to look rather more deeply at the issues that were being considered under this legislation. Among them we should have looked at the adequacy of existing mechanisms here in New Zealand in relation to the prohibition of torture. We should have looked to the experience of other parts of the world for example the European Committee for the Prevention of Torture. We should have considered whether the United Nations actually had the capacity to examine and look at the sort of programme that is being recommended under this legislation. We should have looked at our own leadership role in relation to human rights. None of these areas were traversed under the leadership of the Labour Government. 
We really have to recognise that there are now 134 State parties signed up to this treaty. It is worth also making the point that New Zealand complies with all of the obligations under the convention. So in that sense we as a country smaller than Sydney need to be much more focused in what we do on what is actually relevant in our community and we should be standing here legislating only where there is a need for New Zealand to legislate. This was not addressed in any way by our Labour-led select committee. 
I also draw to the attention of the House and the public of New Zealand the fact that Amnesty International has not in any way reported systemic torture being perpetrated here in New Zealand. So one really wonders why we are engaging the time of the House and the select committee process essentially to sign up to something that should not be in the first level of the concerns of this Parliament. We need to think about New Zealanders offshore. We have New Zealanders in a number of overseas prisons. Some of those will be European prisons and they will be beneficiaries of high levels of protection not available to other New Zealand prisoners overseas for example in a range of countries that have not signed up to this arrangement or that have questionable practices for people under State care. 
We should have looked also at the issue of the cost of establishing in the United Nations’ framework what we are doing here. We are talking well over $2 million a year to implement this programme. That probably represents less than 0.1 percent of the United Nations’ regular budget but I think we should have been concerned at the select committee level that significant United Nations resources would be expended in the operation of this legislation that we are about to pass. Has the select committee or the Labour Government looked at increasing our contribution to the United Nations to cover this extra activity? No. So in a situation now where there are 134 State parties belonging to this convention we have to think about the cost of travel to each of those 134 countries by international bureaucrats. 
We have to look at the effectiveness of those visits and we have to work out where people are being deprived of their liberty. And although there are some people who I can see deserve to be deprived of their liberty it is not actually happening in New Zealand. In a situation where United Nations human rights committees are already overburdened with work including investigating quite serious allegations about human rights for example in Burma China or Iran one really has to wonder a little about the resource aspect of setting up a body that can go and look at any institution it likes in any country regardless of whether there is any serious concern. That is what the Labour Government is signing us up to. It does not have to be a serious concern. These international bureaucrats are on a great travel gravy train at our collective expense. 
 I think the Government really has to focus on the matter that United Nations treaty bodies are generally considered to be under-resourced and I would be interested to hear from the Minister what plans he has to increase New Zealand’s financial contributions to these committees so that we can see they properly do the work that we are now in the process of signing them up to. I think that if we do not do that—if we as a country do not make significantly more and greater contributions to the United Nations—we will divert funds away from other UN human rights programmes and that would be a huge disadvantage to the global community. 
I think that in this process it is also very difficult to think about how one expects the inspection regime to operate in a thorough detailed and able way in each State party at the same time. It cannot be done so we will have then to have more subcommittees doing the work more people employed and more bureaucrats. I think we— 
Hon Georgina te Heuheu 
: It’s a bureaucratic world. 
JOHN HAYES 
: It is a very bureaucratic world but international bureaucrats cost about five times more than our local bureaucrats—and they are already very very expensive. 
Although some submitters came and said that they thought it was important that New Zealand signed up to this so that we send a clear message to the international community that New Zealand remains a leading nation in the advancement of human rights it is also worth thinking about what exactly New Zealand wants to do and what sorts of positive messages it wants to send. One thing that a small country like our own of a little over 4 million people—as I say smaller than Sydney—should do is to send positive messages by doing and by focusing our energy and limited resources on only productive exercises. I think we need to adopt this as an overall approach to engagement with the UN treaty body system and I look to leadership from the Minister on ways of helping to make UN reform far more productive than has been the case hitherto. 
This is an issue that I think goes right to the relationship between the United Nations and New Zealand and it does not go to the underlying principle of this convention. I think we also have to keep in mind that the people who will be doing this inspection are not from democratically elected Governments as our own people are; they are international civil servants. I think no scope was considered by the Labour administration to ensure that members of that international group worked within their mandate and I do not think the Labour-led Government has made any effort to ensure that the UN system is reducing its duplication and improving coordination between its various elements that are engaged in this human rights area. I hope that we will see the Government committing far greater resources to the UN so that these issues can be sorted out. If we are going to decide that this is an area in which our country has to work then we have to be seen globally to be paying for it. 
I personally after some reflection have some reservations then about signing up to this arrangement but I think that because New Zealand would want to demonstrate its commitment to proscribing and preventing torture we should go ahead and do it. But we should be doing it in a way that is far more supportive of the United Nations and I expect to see this Government contributing a greater amount of money to the UN to enable this committee to do its job thoroughly. Thank you. 
KEITH LOCKE (Green) 
: 
 The Green Party will be supporting the Crimes of Torture Amendment Bill. It is important in order to prevent torture that there are proper independent inspection regimes in all detention facilities in New Zealand as specified in the optional protocol of the convention against torture which this legislation will allow us to ratify. 
The biggest debate around this bill has been about how to make the inspection bodies—the national preventive mechanisms and the central preventive mechanism—truly independent of the State. It is disappointing to the Green Party that a critical element of independence from the Government—that is from the executive branch—is not contained in this bill. Members may notice that in the report back from the Foreign Affairs Defence and Trade Committee there are some minority comments from myself as the Green member on the committee in that respect. 
We were concerned that the Minister a member of the executive branch of Government has the power to designate the national preventive mechanisms and the central preventive mechanism and if and when he or she wishes to revoke those designations. That is not true independence. If we refer to the submission from the Human Rights Foundation to the select committee we see that the foundation refers to the Paris principles that govern national human rights institutions. The Human Rights Foundation says that national institutions that are not set up completely independently will not be accepted as national human rights institutions—be they institutions in the Asia Pacific Forum of National Human Rights Institutions or elsewhere. In terms of those criteria the granting of the right of the executive to get rid of those institutions cuts them out from being truly independent. 
In order to have true independence the Greens say it is a requirement that designating and revoking be done by Parliament not by the executive. I think it is easy enough to achieve that and the Green Party will move an amendment in the Committee stage of the bill to firstly remove the right of the Minister to designate those mechanisms and to revoke them and secondly to give Parliament that right by listing the mechanisms in this particular bill. 
Already some of the potential national preventive mechanisms are listed in the bill—that is an Ombudsman the Police Complaints Authority and the Children’s Commissioner—and it is clearly envisaged from the discussions around this bill that we will be able to add to those the Judge Advocate General because he or she is clearly envisaged to be the national preventive mechanism for the Defence Force. There may of course be changes as referred to by the previous speaker in those mechanisms. For example the Police Complaints Authority may give way to an improved independent police complaints authority if the bill currently before Parliament is proceeded with. But it is easy enough if there is a legislative change to the Police Complaints Authority—because there can be an amending clause—to change the title of the national preventive mechanism for the police in this legislation the Crimes of Torture Amendment Act as it will be at that time. 
There is certainly no practical reason why we should not give Parliament rather than the executive full control over the designation and the revocation of designation of preventive mechanisms. I think there is a good reason for us here in New Zealand as people in a strong democracy to set a good example to the world in terms of the full independence of these mechanisms from the executive branch of Government. We are setting an example to other countries that have signed the optional protocol where the executive arm is much more overbearing than it is here where there is less real democracy and less real recognition of human rights than there are here and where dissidents have been mistreated in custody either currently or in the recent past. I speak of countries like Azerbaijan Cambodia and Turkey which have signed the optional protocol. I think we need to set an example in the upholding of what I mentioned before—the Paris principles—in terms of the independence of human rights institutions such as the preventive mechanisms. 
The Human Rights Foundation’s submission outlines the Paris principles as being the legal independence and operational autonomy of the institution. We see that in our Human Rights Commission here in New Zealand and in the independence in the process of appointing members to bodies like that. There should be staffing autonomy—that is the institution should be able to appoint its staff free of executive interference—and financial autonomy which is improved if there is a relationship to Parliament rather than to the executive branch. That is the case with some of the human rights mechanisms such as the Office of the Ombudsmen. 
 I will now go over the powers granted to the national preventive mechanisms. One of the important ones is the right of access to any facility of detention. The bill quite rightly states in section 27 of new Part 2 added by clause 6—as amended by the select committee—that these mechanisms have the right “to examine at regular intervals and at any other times the National Preventive Mechanism may decide—”. I think that is important because as we have seen particularly overseas if some warning is given of an impending visit from the Red Cross or whoever else it might be the repressive regime that controls a detention institution will move out those prisoners who may complain that they have been tortured or it will threaten prisoners well in advance of the visit so that they are too intimidated to say anything critical to the visiting party. Although it is the task of these preventive mechanisms to deal not with individual complaints in terms of their rectification but rather with systemic abuse free access at any time is important in order for the national preventive mechanisms to achieve that. 
We see an access problem even in one of the longer-standing democracies in the world that some people look up to—the United States which has its congressional elections tomorrow. In terms of its Guantanamo Bay facility it has prevented access from independent UN bodies. So we can see the importance of insisting on access. Of course as part of the bill’s provisions it is required that the Government or the people who control detention facilities give the preventive mechanisms all the information on the number of detainees the conditions and so on. Those who control the facilities are not allowed to hide anything. 
Another important provision is that there be a full power of open recommendation from the national preventive mechanisms. Under this legislation any report given to the Government must simultaneously be given to Parliament and must be made public in short order. That is so nothing can be hidden. There is a right to issue recommendations and an obligation to try to rectify the situation and to report to the subcommittee on the convention against torture so it can take action if necessary as it did in relation to the torture engaged in under the behavioural management regime in our prisons. In that case a High Court judge granted five of those prisoners $130000 in compensation. The UN Committee against Torture was condemnatory of that regime and asked the Government to inform it as to what it was doing in respect of the cruel and degrading treatment that had taken place in those prisons. 
We are not immune from problems to do with torture. It has taken place in New Zealand as the UN Committee against Torture verified. So I think it is important that we implement the provisions of the optional protocol. 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Tena koe Mr Deputy Speaker. Tena tatou katoa i te Whare. The reality of people who have suffered the fate of systematic and brutal murder slaughter human rights abuse physical and mental oppression dispossession and extermination—the crimes of torture—is readily available through reading the histories of colonisation. In fact in my maiden speech to this House I referred to the crime of torture enacted amongst the people of Te Whakatohea in the mid-1860s following the murder of the missionary Carl Sylvius Völkner. This House will recall that Völkner had been implicated in the passing on of information to Governor Grey about the movements of Maori in the New Zealand Wars. In the weeks after his death British troops stormed Opotiki and captured four Maori including an esteemed chief of Whakatohea Mokomoko. The four men were arrested condemned and executed for the murder of Völkner. Not satisfied with these four deaths the Government also mounted a harsh assault on Whakatohea confiscating their best arable land destroying their shipping and stores. The basis of an effective economy was ruined. 
Mokomoko had always denied his involvement and indeed was supported by the legal and historical research that followed. A grave miscarriage of justice occurred. Over a century later his whanau were able to exhume his remains from Mount Eden jail so they could be buried in his ancestral urupa. In June 1992 the descendants of Mokomoko were finally granted a full acquittal for him. His words at the scaffold read in song were remembered: “Violent shaking will not rouse me from my sleep. They treat me like a common thief. It is true that I embrace eternal sleep for that is the lot of a man condemned to die.” 
The condemnation that we bring to this House today against torture is undeniably influenced by experiences such as these. We come to this bill remembering the plea of Mokomoko not to have to die for a crime he did not commit. It is ironic that when we stand in this House in support of the optional protocol adopted by the UN General Assembly it is often implied that we are opposed to the use of torture and other cruel inhuman or degrading treatments or punishments in far-off places when scrutiny of our own situation might be very revealing. The use of execution the application of the death penalty as a punishment for murder was inherited along with other common law from England in 1893 alongside hard labour flogging and whipping. My research tells me that from 1842 until 1961 54 people—one woman amongst them—were put to death in Aotearoa. The last person to be executed was Walter Bolton who was hanged at Mount Eden Prison on 18 February 1957 for the murder of his wife. Today the stone walls and towers of Mount Eden Prison remind anyone who visits there of our own shameful history of human rights abuses. Our public libraries also contain records of executions that were free entertainment for a morbid crowd that would congregate above the Mount Eden stockade to witness the events. 
Other legacies remain. There are 11 graves at Mount Eden Prison that forever remind prisoners of the tragic history of execution. Just over a decade ago between 1991 and 1999 another 11 lives were lost—11 of 13 teenagers committed suicide in Mount Eden prison in that period. The question was asked at the time whether the actions of the past had ever been reconciled or whether that legacy remains as long as Mount Eden Prison stands. 
I understand that the report on New Zealand prepared by the United Nations Committee against Torture in June 2004 expressed concern at the fact that juveniles are sometimes not separated from adult detainees and have been detained in cells owing to the shortage of Child Youth and Family Services facilities. The hideous culture of Mount Eden Prison is clearly inappropriate if our young people are driven to suicide in adult prisons. The recent tragic death of Liam Ashley points to the pressing need to address the issue of juvenile safety raised by the United Nations Committee against Torture. 
The committee’s report also expressed concern about the significant decrease in the proportion of asylum seekers who are immediately released without restriction into the community upon arrival and the detention of several asylum seekers in remand prisons who are not separated from other detainees. This week marks 2 years of such detention for Thomas Yadegary an Iranian who has been imprisoned without charge or trial in Auckland’s Mount Eden Prison. Thomas has lived in Aotearoa since 1993 and applied for refugee status. His application was declined. On 1 November 2004 he was taken into custody at Mount Eden Prison to await deportation. The Government has exerted pressure on Thomas to sign an agreement absolving the Minister of Corrections from any responsibility in the likelihood that Thomas is arrested tortured or killed on his return to Iran. Thomas has refused to do so and in effect he remains a hostage in prison. 
 Last month Global Peace and Justice Auckland released a statement: “Thomas’ continuing incarceration is a travesty of natural justice and a disgraceful abuse of human rights. We have our own little Guantanamo Bay right here in the heart of Mount Eden.” 
The Maori Party stands in this House to argue for consistency in the application of our human rights to restore our international reputation through compliance with international law. Yet here under our very own eyes is another incident where a person has been deprived of liberty seemingly violating the human rights conventions in a way we are so quick to condemn in other countries. We all want to believe that the criminal justice system is reliable fair and infallible. Unfortunately there is a huge discrepancy between what we may wish to believe and fact. 
The UN committee also expressed a considerable concern about prolonged periods of solitary confinement and the findings of the Ombudsman regarding investigations of alleged assaults by prison staff on inmates—in particular the reluctance to address such allegations promptly and the quality impartiality and credibility of investigations. The Maori Party has consistently raised our own concerns about these problems and supports the focus that will come from increased monitoring by the United Nations of our prisons. This can only enhance the confidence of the public and demonstrate transparency if the United Nations subcommittee can provide rigorous advice that we will listen to. 
Finally the Maori Party of course wants to ensure that the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment is applied not just at home but across the globe. No one in this House can deny the facts of the United Nations investigation into the treatment of prisoners at the US naval base at Guantanamo Bay which revealed that it was effectively a torture camp where prisoners had no access to justice. The final report of the investigation undertaken by five UN experts accused the United States of practices that amount to torture and demands that detainees either be allowed a fair trial or released. We were told that torture was a daily occurrence at the prison camp for terrorist suspects—suspects accused of having links to Afghanistan’s ousted Taliban regime or to al-Qaeda. Yet in this prison camp that is rife with terrorists only a handful have been charged. The United Nations has shown the world that a prison exists outside normal international standards of justice. It is a prison where 490 men have been held for absolutely nothing; a prison that the UN Secretary-General Kofi Annan demanded must be shut down. 
Mokomoko’s dying words were: “Tangohia mai te taura i taku kaki kia waiata au i taku waiata.”—take the rope from my throat that I may sing my song. With this bill we hope that others may note that the rope should be taken from the throat of those in Guantanamo Bay those seeking asylum in Aotearoa and our own youth in prison on remand. We hope that the song that will be sung will be one of a justice system aimed at preventing crime before it occurs wherever possible and that is supporting people who are affected by crime. Whether it is murder slaughter or dispossession through the gallows cannon sword legislation or a prison camp is irrelevant in defining torture or cruel inhuman or degrading treatment or punishment. The key point is that we must continue to vigorously oppose all human rights abuses. We must condemn all acts of torture and we must build hope in restoring our international reputation as a land that values human rights and due access to justice. Kia ora tatou. 
RON MARK (NZ First) 
: 
 Well is it not interesting; from listening to that speech from the Maori Party one would think that its members are the upholders of peace justice and human rights in this Parliament. I remind the honourable member that sometimes it helps if one comes to this House and speaks from the heart from the shoulder and from a depth of understanding of the issues as opposed to standing up and reading a speech from a pre-prepared script. Something that the Maori Party members are becoming legendary for and known for is turning up to the House and speaking from a pre-prepared script written for them by some staffer back in the office or maybe by their own hand. The fact is that if those members stand in this House and read from a pre-prepared script written for them they need to remember that they will be adjudged on the sincerity of the arguments they put according to that. I know as I travel around the country and attend various marae and meetings with iwi and hapu—and the honourable member Te Ururoa Flavell knows this more than anyone in this House—that most of our great Maori orators both men and women speak straight from the shoulder; they speak from the heart. They do not turn up with a written script that they rabbit through. 
Te Ururoa Flavell 
: Point of order— 
RON MARK 
: It had better be a point of order Mr Deputy Speaker. I take great offence at this. 
Mr DEPUTY SPEAKER 
: Mr Mark that is uncalled for. 
Te Ururoa Flavell 
: I raise a point of order Mr Speaker. I might be wrong but I am standing to ask about the response from the member in his speech. I will apologise if it is out of order but I have heard other members in this House interject on other speakers about coming to the point and talking on the bill as opposed to making comment on the speeches of individual members. I might be out of order; I just ask the question. 
Mr DEPUTY SPEAKER 
: It is not a point of order but you have asked a question. Mr Mark is quite entitled to bring into the opening part of his speech the member who spoke before him. 
RON MARK 
: Thank you Mr Deputy Speaker and I thank the honourable member. I have been here a decade and I do understand the Standing Orders. 
It is an interesting piece of legislation. It is interesting that we have a Crimes of Torture Amendment Bill presented before the Foreign Affairs Defence and Trade Committee which is as I have noted by going through the report pretty equally balanced between the National Party and the Labour Party. I think the balance of power clearly rests with the Green Party in the vote of Keith Locke. 
I do not think anybody in this House would oppose this bill. New Zealand First supports the passage of this bill. But in respect of some of the speeches made here this evening it is I guess timely that we do reflect on the issues of human rights abuses. I find it very rich that people would stand in this House and promote—indeed reinforce—the principles espoused in this bill when they themselves did nothing to prevent the abuses that were happening in the New Zealand Department of Corrections. I point specifically to the instances relating to the operation of the emergency response unit otherwise known infamously as the “goon squad” in the New Zealand prisons. It is interesting that the previous speaker the Maori Party member should talk about what the views of the Maori Party were. I need to put it on the record that when I was raising issues in this House about the activities the human rights abuses and the failure of the State to live up to its responsibilities to investigate those abuses the Maori Party co-leader Tariana Turia was the Associate Minister of Corrections. Indeed she was in a position in Government at the Cabinet table to do something about that. 
The honourable Te Ururoa Flavell needs to reflect on the history of his party. His party does not come to this House with a clean sheet and a clean napkin. It comes with a history. The honourable member Tariana Turia the co-leader of the Maori Party had an instrumental part in the cover-up and the denial of the charges levelled against the Department of Corrections in respect of human rights abuses that occurred in New Zealand prisons during the time that she was the Associate Minister of Corrections. Only New Zealand First stood firm on that issue and it took New Zealand First 4 years to bring about a commission of inquiry that concluded what we all knew. 
I take my hat off to a number of members in Labour. I point to the honourable Tim Barnett who for many years fought with his party behind the scenes to help me make sure that there was an inquiry. But people like Tim are few and far between when it comes to standing up. It is one thing to stand in this House and talk grandly about human rights abuses and the need to stand up against these things but it is another thing to do something about it. I am sick to the gut of hearing sanctimonious speeches from MPs postulating their new-found presence on the political spectrum of high and mighty and lauding to all and sundry how grandly they stand on these issues whilst condemning others. Get some time up I say to the Maori Party. 
And while I say that let us talk about Mokomoko. Who pardoned him? Who? At a time when the Maori Party was but a twinkle in its dad’s eye other people in this House were fighting that issue such as the Rt Hon Winston Peters—and I will give credit to the National Party. The National Party also accepted that an injustice had been done. I tell the Maori Party that they should not come to this House preaching sanctimony; they should at least be genuine and generous enough to acknowledge the efforts of the National Party and New Zealand First in pardoning him. 
Te Ururoa Flavell 
: Ran out of time. 
RON MARK 
: Well it took time but many of us have been alive for only 50 years not 150. 
Te Ururoa Flavell 
: I ran out of time for my speech. 
RON MARK 
: I know the member did but he had plenty of time to make that point. It took three words. “I acknowledge the work” of other parties—maybe that is four. 
We sometimes forget when we adopt a mantle and seek to campaign on issues that are dear to our hearts that we are not the people in the vanguard and that people have come to this House and fought these issues before us—people like Tim Barnett like those who made up the National Cabinet at the time of the National - New Zealand First coalition Government and like the members of the law and order select committee at the time such as Brian Neeson. I will put that name in the record and I hope that the National members who sit here today and who enjoy the salaries the position and the status that they have remember Brian Neeson. He was the only man in the National caucus who stood up against the human rights abuses that were occurring in the Canterbury prisons at the time of the previous National Government. 
We are pretty good around this place at beating our chests standing up and saying what we stand for. We are sadly lacking an ability to stand up and recognise those of us—cross-party—who have come before this House and put their political careers on the line by advocating for things that were unpopular and were not supported by our greater caucus numbers. I do not believe that there is a member in this House who does not support this bill. I do worry about the implications of some of the things that we think of in this House in respect of the safety and security of our Defence Force personnel deployed in Afghanistan Iraq and around the world. But I do acknowledge the greater humanity that exists in this place and in the hearts of individuals in Parliament cross-party. New Zealand First supports this bill and we acknowledge with respect all other members of Parliament who likewise support this bill. 
TIM GROSER (National) 
: 
 I rise to support the Crimes of Torture Amendment Bill. The debate has taken quite an interesting turn in the last couple of speeches and I will come back to the question of my own views on abuses that have occurred in the past and I am sure will unfortunately occur in the future. But first of all I will look at the ultimate purpose of this bill which starts with some type of consideration of its international origins. The international community learnt 60 years ago that the older concept of inhuman practices and human rights abuses being something that were outside the responsibility of the international community led to grave international problems in due course. This has created the bedrock of sentiment from which this optional protocol and a range of other international covenants protocols and agreements related to human rights come. 
I personally have been a great supporter of multilateral approaches rather than relying on bilateral diplomacy because I believe that basically they are far more effective in the long term. I am not sure whether Mr Ron Mark might have been a member of a parliamentary team that when I was ambassador to Indonesia went to Dili but I went to Dili many years ago to represent New Zealand when East Timor was still under Indonesian control. Pursuant to my instructions from the Minister—and it was a National Government of the day—after 3 days I think looking around the place in Dili I remember going to see one of the senior military people. I said to him quite bluntly that I thought what was going on there was just outrageous. He said to me “Setuju” in Indonesian meaning basically “I agree”. 
I ask what better response one could have had about how completely hopeless it was in the sense that all that would be recorded was a note in a file without any real consequential action. I think that the whole concept of concerted international pressure through multilateral diplomacy which is what we are discussing tonight is in the long term by far the best way to achieve what is really a work in progress because this is a long-term process. Societies such as ours—and I note that we have just listened to the very interesting speaker from the Maori Party—did not arrive at the same standards of human rights observance overnight. It has taken us a long passage of time to get to where we are and it will take many years for many countries to achieve what we would regard as even halfway reasonable standards. So I believe that there is a huge role here for international diplomacy. 
I see that this optional protocol derives very directly from the original Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Article 2 which is set out in schedule 1 of the bill puts the focus firmly on a cooperative relationship if you like between the international process on the one hand and the State that is a party to the convention on the other. That is the only way it can be. One cannot go from one extreme of saying that what happens within one’s borders is entirely one’s internal affairs then lurch towards the other extreme of believing that the international community can simply ignore the governing authority. So there is a balance to be achieved between the two processes and that is the foundation of the original political logic behind the convention. 
Clearly after 20 years of experience members of the international community that are very active in the human rights arena such as New Zealand have reached a conclusion that further measures are required to make this convention more operationally effective—hence this optional protocol. The basic concepts of the protocol are very consistent with the original 1984 convention. It is first of all an issue of partnership—that issue of the international community working in conjunction with the State authorities. The protocol has an emphasis on prevention and that is what the whole debate the House has had tonight over the incomprehensible term “national preventive mechanisms” is really all about. There is a very strong focus on the scope of this legislation being anything that is part of the territory of the party signing the optional protocol. So there is a strong level of consistency between the original convention and the optional protocol. 
The committee has worked very hard on the over 20 submissions it received from a very active part of our community—and a very essential part of our democracy that exists here—just on the domestic implications. It was always going to be thus; after all the purpose of the protocol is to establish within each of the parties that wish to take up the obligations of the protocol preventive mechanisms—in our case within New Zealand—specific to the various places at which the possibility at least of cruel or inhuman treatment might arise. I accept that purpose but I expressed several times during the select committee process and I will repeat tonight a certain air of unreality at times during the discussion. I was sitting there during the debate and these very well-intentioned people—I would include the parliamentarians from all the parties on the committee—were looking in minute-detail terms at the national preventive mechanisms that would apply in different situations in New Zealand. I thought to myself: I just hope the good folk in Myanmar and Sudan are attaching the same degree of care to their analysis. I accept the logic of it but that is the thought that keeps going through my mind. Of course I have particularly in my head the  
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People Rudolfo Stavenhagen on His Mission to New Zealand 
. Members will recall that amongst the spectacular idiocies of that report which was certainly condemned by the National Party and Labour at the time was the recommendation after a mere 10 days of study in New Zealand that we should introduce MMP at the local government level. There were also a series of extremely loosely informed opinions in the report. 
At the end of the day although the focus is necessarily domestic rather than international I say that frankly this is not the main game. The main game is to enable us to sign this optional protocol in order to put us in a respectable position which this amendment most certainly will but to focus the real work of the committee yet to be established—whose terms of reference criteria and visiting cards have yet to be published—on the really bad guys. That is not to deny that in the past there have certainly been abuses of power by officials in this country over people who have been deprived of their liberty for whatever good—one hopes—reason and we have just heard a very vigorous discussion between two members on this point. I regret to say that I am sure such abuses will continue in some form in the future—I hope they are few and far between. My point is very simple: I do not think we need the United Nations to help us sort this out. The normal democratic process and freedom of the press that we have in this country will eventually correct these most unfortunate lapses from what is otherwise a highly respectable record in this country. 
My basic message tonight would be the same as it was during the select committee process. I fully support the bill. It is a sensible approach. We have the requisite level of independence attached to each future national preventive mechanism—whichever one is chosen by the Government of the day—and there is flexibility in that procedure. But the real focus of New Zealand should in fact be on the really bad guys. There are appalling human rights abuses. There is torture of the most incredible type taking place in country after country not just in the two spectacular examples I mentioned of Darfur and Myanmar but in some other countries that for reasons of diplomatic protocol I do not care to mention in our Parliament. That is where the focus of our officials in New York should be. So yes people should make the usual speeches in the plenary about how the New Zealand authorities have discharged their responsibilities in a very effective way. But I ask the New Zealand officials who will be in practice at the sharp end of New Zealand’s efforts whether they could focus on the real problem facing the world on this issue. 
JILL PETTIS (Labour) 
: 
 It seems remarkable that in a country such as ours which is a peaceful and effective democracy—and members in this House have only ever lived in peacetime—we should be discussing a bill such as the Crimes of Torture Amendment Bill. But given the world in which we live and given that we are a responsible member of the international community I am pleased this bill is a reflection of New Zealand’s steadfast commitment to human rights and of this nation’s abhorrence of torture. 
 I agree with what the previous speaker said and of course we believe that the emphasis should be on the “bad guys” but somebody has to commence a protocol before international pressure can be brought to bear. New Zealand has led many forms of international pressure that have brought about positive democratic change in countries that had not experienced democracy—one person one vote. With the support of New Zealand and other kindred countries such positive moves have often occurred. I am proud to have been involved in the select committee process because it showed that New Zealand is continuing to provide leadership in important matters of international human rights. As I said before this country was one of the first nations in the world to sign up to the optional protocol to the convention against torture which was ratified on 22 June this year. 
I want to touch briefly on an aspect that has not been covered by any other member this evening. It concerns the national preventive mechanism for health and disability services because this is an important and sometimes sensitive area as well. The Foreign Affairs Defence and Trade Committee recommended that paragraph (d) of the definition of a national preventive mechanism in new section 16—in clause 6—be omitted. We felt that it was not appropriate that “persons designated by the Director-General under section 32 of the Health and Disability Services (Safety Act) 2001 to audit the provision of health care services:” be designated as national preventive mechanisms because they are concerned with the safety and quality of health and disability services rather than with human rights issues. The committee felt that for the purposes of health care people may be legally detained in hospitals or care facilities or subject to supervised care in the community for reasons of their own or for public safety. 
Accordingly the committee felt it was important to designate an appropriate institution as a national preventive mechanism for health and disability services. It considered whether the Health and Disability Commissioner could be designated as a national preventive mechanism for monitoring the treatment of persons detained in health and disability facilities. The role of a national preventive mechanism is broadly consistent with the commissioner’s statutory mandate to promote and protect the rights of health and disability service consumers. However for the commissioner to take on the role of a national preventive mechanism the commissioner’s role would need to be extended to include powers of inspection and investigation. This would be in effect a significant extension and would confuse the commissioner’s role as an advocate for patients’ rights. The committee also considered that the Office of the Ombudsmen should be designated as the national preventive mechanism in respect of persons detained in health and disability facilities. 
One of the other aspects of the bill that is interesting concerns frequency of visits. The committee recommended that new section 27(a) in clause 6 be amended to read: “to examine at regular intervals and at any other times the National Preventive Mechanism may decide—”. The frequency and perhaps the irregularity of those visits will be key in ensuring that the proper conditions continue to prevail in a whole range of institutions. 
 As has been said earlier the protocol establishes an international inspection team. Its visits will be important as I have just alluded to because they will act as a deterrent. The team will also be able to provide advice to local authorities. We know only too well that ill-treatment often stems from poor monitoring regimes. Regular inspections must take place in those countries that we have concerns about such as the Sudan where tragic incidents are occurring in Darfur and Myanmar. That is the only way that New Zealand as a member of the international community will be able to help bring about more positive change. 
I was disappointed to hear John Hayes’ comments. Mr Hayes sat on the committee that considered this bill. I thought it was a pity he did not ask the committee the same questions that he raised tonight. It reminds me of that saying: “It is no good being a hero without an audience.” Well sometimes the hard questions have to be asked when there is not an audience and I think it might have been more constructive if those questions had been asked while the officials and experts were in front of the committee rather than his asking rhetorical questions on the debating floor of the House. 
The mechanisms in this bill for reporting to Parliament have now been increased and that can only be seen as a positive. I enjoyed participating in the committee’s consideration of this bill. As the chair of the committee Dianne Yates commented it was a positive debate and we always appreciate that manner of debate in the committee. 
Bill read a second time.