Prisoners' rights in New Zealand: Difference between revisions

Introduction

At as 31 December 2014, there are 8080 male prisoners and 561 female prisoners being held across 17 prisons in New Zealand. The most populated prison in New Zealand is Mt Eden Corrections Facility, with 952 prisoners, closely followed by Rimutaka Prison with 942 prisoners.

In New Zealand, many of our human rights are embodied under various domestic legislation, including the New Zealand Bill of Rights Act 1990 ("NZBORA") and the Human Rights Act 1993 ("HRA"). For example, section 9 of NZBORA affirms that everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

New Zealand also has a number of international obligations, being party to a number of international treaties and covenants such as the United Nations Convention against Torture, Inhuman or Degrading Treatment or Punishment ("CAT") and the International Covenant on Civil and Political Rights (“ICCPR”). For example, Article 10 of the latter provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

It follows then, that New Zealand prisoners are afforded a number of human rights. However, this is not always the case. Recent criticisms by a United Nations report clearly highlight a number of issues which constitute the ill-treatment of prisoners; such as remand prisoners being routinely held on lock-down for 19 hours per day; an increasingly strict prison regime, as well as the mixing of adult and youth prisoners.

History of prisoners' rights in New Zealand

The first New Zealand prisons were established in the 1840’s. Built across the country, they were flimsy, underfunded, under resourced and overcrowded. By 1878 there were 1054 prisoners contained within 30 small prisons throughout New Zealand (For example, New Plymouth Prison comprised of two cells and an outdoor yard).

The prison system was heavily criticised from early on. Despite these criticisms, and despite a royal commission of inquiry in 1868, there were no immediate changes. In 1880 a standardised prison system was introduced, under the watch of Arthur Hume, the first Inspector General of prisons. This system focused on being economical and acting as a reformative deterrent to prisoners. Conditions became harsher for those on the inside including rations being cut and communications between prisoners prohibited.

In 1909 (and coincidently, upon Captain Hume’s retirement), prison reform was sought. The Crimes Amendment Act 1910 saw teachers appointed to the prisons, allowed for small wages to be paid to prisoners, and allowed for prisoners to be released on probation.

From 1949 to 1960, Sam Barnett, the secretary of justice, was in charge of the prison system. Under Barnetts’ administration, extensive reforms took place. This included greater rations, improved education and library resources, appointment of prison phycologists and improved recreation and welfare services. Periodic detention was also introduced, which allowed for supervised community work. It was from the 1950’s however, that prison populations rapidly increased, in line with the increasing crime rate. As alerted to above, today there are 17 prisons throughout New Zealand which hold 8080 male prisoners and 561 female prisoners.

Maori imprisonment

Maori are well over-represented at all levels of the criminal justice system. Prison numbers are no different. Maori represented 3% of prisoners in 1840. In 1936 this had risen to 11% and in 2014 this had risen to 50.8%, despite Maori only making up 15% of the population.

Women imprisonment

Initially women were kept in the same prisons as men. It wasn’t until 1913 and after much protest, that the first women’s prison, at Addington, was established. Despite this, women were usually kept in separate areas to men, in other prisons. In 2014 women comprised 6.4% of the prison population.

Controversial Rights

A number of human rights have caused controversy in recent times. Namely, in 2010 a large number of prisoners were banned from voting. The right to smoke was also taken away from all prisoners in 2011, and the issues of preventive detention still remain rife today. In addition, the mental health of those in prisons still remains an issue which needs to be addressed.

Right to vote

The right to vote is expressly provided for in domestic legislation. Section 12 of BORA states “every citizen who is or over the age of 18 years has the right to vote in genuine periodic elections of members of the House of Representatives…”. Section 74 of the Electoral Act 1993 expressly states “…every adult person is qualified to be registered as an elector of an electoral district if… that person is…. A New Zealand citizen; or a permanent resident of New Zealand”.

Despite this, many prisoners are barred from electoral registration, and therefore casting their electoral vote. This equates to roughly 2550 prisoners. Taking away the right to vote originated from early roman times when those arrested were declared “civilly dead”. In the last century the law has undergone many changes. Today, as a result of a 2010 amendment to the Electoral Act 1993, those banned from voting are prisoners sentenced to preventive detention, life imprisonment, and a term of more than 3 years.

The barring is controversial because it denies fundamental civil liberties to persons who have already been punished for their crimes. The abolition of such a right stands in stark contrast to the world trend of widening civil liberties of prisoners. On the one hand, prisoners arguably should be denied civil liberties when they have been convicted of certain crimes. On the other hand, the denial of civil liberties oversteps the mark and is stark contrast with other jurisdictions in the world. This denial also sets a dangerous precedent for the removal of other human rights for prisoners.

Preventive detention

Preventive detention is a special type of sentence provided for under section 87 of the Sentencing Act 2002. It is a form of imprisonment, with no release date until approved by the Parole Board. It occurs when the individual is defined as “a dangerous person and is assessed as posing a substantial risk of grave harm to the public or specific individuals.” The decision to sentence a person to preventive decision relies heavily on the predicting the individuals likelihood of committing future crimes.

Preventive detention is heavily criticised because it is a form of arbitrary detainment where a person has not actually been charged with, or convicted of an offence, but poses a risk of offending. Several provisions under the New Zealand Bill of Rights Act 1990 are relevant, namely:

• Section 9: Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
• Section 22: Everyone has the right not to be arbitrarily arrested or detained, and
• Section 27: Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations or interests protected or recognised by law.

Despite this, section 5 of the New Zealand Bill of rights Act 1990 limits these rights where it can be “demonstrably justified in a free and democratic society”. Accordingly, preventive detention remains a lawful exercise.

A report by the Human Rights Committee dated 15 December 2003 looked into the lawfulness of preventive detention with respect to three particular individuals. The Committee was of the view that preventive detention was not arbitrary, nor did it offend the principle of the presumption of innocence. Dissenting members disagreed however, and found that “To rely on a prediction of dangerousness is tantamount to replacing presumption of innocence with guilt”. In another report by the United Nations, it was stated that in order to be released by the Parole Board, a prisoner must have completed a number of training and rehabilitation programmes. However, there is a drastic shortage of these programmes meaning release on Parole is delayed.

Similar concerns were mirrored in a report: Better and Better and Better? A legal and Ethical Analysis of Preventive Detention in New Zealand.

External Links

• OHCHR Solomon Islands