Locke Keith: Crimes of Torture Amendment Bill — Second Reading 
Locke Keith: Crimes of Torture Amendment Bill — Second Reading 
[Volume:635;Page:6272] 
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.