Prisoners' rights in New Zealand

Prisoners in New Zealand are afforded a number of human rights, but not all rights. Criticisms by a United Nations report in 2014 highlight a number of issues that constitute ill-treatment of prisoners, such as remand prisoners being routinely held on lock-down for 19 hours per day, an increasingly strict prison regime, and the mixing of adult and youth prisoners.[1]

New Zealand 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.[2] Many 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.[3]

At as 31 December 2014, there are 8080 male prisoners and 561 female prisoners being held across 17 prisons in New Zealand.[4] The most populated prison in New Zealand is Mt Eden Corrections Facility, with 952 prisoners, closely followed by Rimutaka Prison with 942 prisoners.[4]

History

The first New Zealand prisons were established in the 1840s.[5] By 1878 there were 30 small prisons built throughout New Zealand.[5] They were flimsy, underfunded and under resourced.[5] For example, New Plymouth Prison comprised two cells and a small outdoor yard.[5]

From early on, the prison system was heavily criticized for the day to day conditions prisoners endured such as damp, cramped cells and long hours of isolation. A royal commission of inquiry was called for in 1868, but failed to precipitate any changes. In 1880 a standardized prison system was introduced, under the watch of Arthur Hume, the first Inspector General of Prisons.[6] This new system focused on being economical and acting as a reformative deterrent to prisoners.[7] Conditions became harsher for those on the inside including rations being cut and communications between prisoners prohibited.[7]

In 1909 (and coincidentally, 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.[8]

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 psychologists and improved recreation and welfare services.[7] Periodic detention was also introduced, which allowed for supervised community work.

From the 1950s prison populations rapidly increased, in line with the increasing crime rate.[9]

Today the Corrections Act 2004 provides the legislative framework for the administration of the prison system[10] by the Department of Corrections. Today there is a wider range of sentences available, including (but not limited to) community work, supervision, community detention, home detention and imprisonment.[11]

Maori imprisonment

Maori are well over-represented at all levels of the criminal justice system. Prison statistics are no different. In 1840 Maori represented 3% of prisoners. In 2014 this had risen to 50.8%, despite Maori only making up 15% of the population.[4]

Women imprisonment

Women only make up a small proportion of the prison population. In 1940 this was 3%, in 2014 women comprised 6.4% of the prison population. Initially women were held 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.[4]

Controversial rights

The rights of prisoners invoke differing views. Below are some rights which have caused controversy in recent times, namely the right to vote, preventive detention and prisoners with mental health issues.

Right to vote

New Zealand has long enjoyed the status of being a world leader when it comes to voting rights. On 19 September 1893, New Zealand became the first country to allow women the right to vote.[12] This can be largely accredited to the advocating efforts of Kate Sheppard. Today, the right to vote is expressly provided for in domestic legislation; both in section 12 of the New Zealand Bill of Rights Act 1990 and section 74 of the Electoral Act 1993 and international treaties New Zealand is party to, including the International Covenant on Civil and Political Rights.

Despite this, prisoners serving a term of three years or more, life imprisonment, or preventive detention are barred from electoral registration, and therefore from casting their electoral vote.[13] At present, this equates to roughly 2550 prisoners.[4]

Taking away the right to vote originated from early Roman times when those arrested were declared “civilly dead”.[14] In the last century the rights of prisoners to vote has swung back and forth. In 1852 all prisoners were barred from voting.[15] In 1975 we saw a complete turnaround and all prisoners were again allowed the right to vote.[16] In 2010 a partial ban was inflicted.[17] This remains the position today.

Those advocating for the ban argue that punishment for prisoners should include the loss of some rights to reflect the seriousness of the crime.[18] In addition, there are also a number of practical difficulties. For example, if prisoners were allowed to vote this would disproportionately affect an electorate.[18] At the time of the enactment, the then Solicitor General John McGrath QC also argued that a partial ban is more justifiable than a complete blanket ban.[19]

On the other hand, the barring is controversial because it denies fundamental civil liberties to persons who have already been punished for their crimes. Furthermore, the abolition of such a right stands in stark contrast to the world trend of widening civil liberties of prisoners, with the exception of Australia who has recently introduced a blanket ban on prisoner’s right to vote.[20] This denial also sets a dangerous precedent for the removal of other human rights for prisoners,[21] and also contributes to inequality of all persons.[22]

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.”[23] The decision to sentence a person to preventive decision relies heavily on the predicting the individuals likelihood of committing future crimes.[23]

Preventive detention is heavily criticized 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:

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”.[27] The limitation of human rights was discussed in Moonen v Film and Literature Board of Review (1999) which remains the relevant authority today.[28]

Preventive detention is justified on the basis that it only applies to a small group of offenders who fit the definition of a “dangerous person and is assessed as posing a substantial risk of grave harm to the public or specific individuals” and relies on the exercise of discretion when certain conditions are met.[23] In a report by the Human Rights Committee dated 15 December 2003, the Committee was of the view that preventive detention was not arbitrary, nor did it offend the principle of the presumption of innocence.[29]

However, there remains strong opposition to preventive detention. It was stated by the dissenting members in the same Human Rights Committee report that “To rely on a prediction of dangerousness is tantamount to replacing presumption of innocence with guilt”.[29] It is also important to note 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 shortage of these programs.[30]

Prisoners' mental health

Prisoners are up to five times more likely to be affected by mental health disorders and illnesses than the general public.[31] The rate of prisoner suicide is 11 times higher than that of the general public.[32] Section 75(1) of the Corrections Act 2004 provides that a prisoner is entitled to receive medical treatment that is reasonably necessary.

All male prisoners over the age of 18 years are old, on their arrival to prison, are screened for any mental health issues. If deemed in need of “mild or moderate” treatment they are then referred to the prison doctor or to a specialist provided by the District Health Board.[31]

In 2010 the National Health Committee published a report looking into prisoners mental health.[33] The prison environment was clearly identified as being a contributing factor for reasons including overcrowding, assaults, sexual abuse, illicit drugs, frequent strip searches and separation from family networks.[33] In the same report, a number of key issues were identified; including detrimental environmental factors, poor identification and treatment of mental health issues and conflict over whose responsibility prisoners mental health is, given it is not a core function of the Department of Corrections.[33]

Antonie Dixon exemplifies the failures identified above.[32] In 2009, Mr Dixon committed suicide inside his at-risk cell. This was after several previous attempts inside the same prison. In his final moments, prison officers waited 7 minutes for other prison officers as back up, before entering the cell. It was held by Coroner Gary Evans that had Mr Dixon been correctly referred to mental health services, then he would still have been alive today.

References

  1. ↑ Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to New Zealand (2015).
  2. ↑ International Covenant on Civil and Political Rights (opened for signature 16 December 1966, entered into force 23 March 1976), art 10.1.
  3. ↑ New Zealand Bill of Rights Act 1990, s 9.
  4. 1 2 3 4 5 Quarterly Prison Statistics - December 2014. Department of Corrections.
  5. 1 2 3 4 Clayworth, Peter (13 July 2012). "Prisons - Early prisons, 1840–1879". Te Ara – the Encyclopedia of New Zealand.
  6. ↑ Crawford, J.A.B. (30 October 2012). "Hume, Arthur". Dictionary of New Zealand Biography. Te Ara - the Encyclopedia of New Zealand.
  7. 1 2 3 Clayworth, Peter (29 July 2013). "Prisons - Developing a national prison system, 1880–1949". Te Ara – the Encyclopedia of New Zealand.
  8. ↑ Crimes Amendment Act 1910.
  9. ↑ Clayworth, Peter (13 July 2012). "Prisons - Prisons in a changing society, 1949–1990". Te Ara – the Encyclopedia of New Zealand.
  10. ↑ Corrections Act 2004, s 5.
  11. ↑ Sentencing Amendment Act 2007 (2007 No 27), S 10A.
  12. ↑ Electoral Act 1983.
  13. ↑ Electoral (Disqualification of Sentenced Prisoners) Act 2010, s 80(1)(d).
  14. ↑ Greg Robins "The Rights of Prisoners to Vote: A review of Prisoner Disenfranchisement in New Zealand" (Law Clerk, Wellington, 2007)Revised version of paper written in 2005 for LLB(Hons) program at Victoria University of Wellington
  15. ↑ New Zealand Constitution Act 1852 (UK).
  16. ↑ Electoral Amendment Act 1975.
  17. ↑ Electoral (Disqualification of Sentenced Prisoners) Act 2010, s 80(1)(d).
  18. 1 2 Royal Commission on the Electoral System. Report of the Royal Commission on the Electoral System: Towards a Better Democracy (Government Printer, Wellington, 1986) para 9.21 and recommendation 42.
  19. ↑ J J McGrath QC, Solicitor-General,to W A Moore the Secretary for Justice "Rights of Prisoners to Vote: Bill of Rights" (17 November 1992) Letter, para 25.
  20. ↑ Greg Robins "The Rights of Prisoners to Vote: A review of Prisoner Disenfranchisement in New Zealand" (Law Clerk, Wellington, 2007) Revised version of paper written in 2005 for LLB(Hons) program at Victoria University of Wellington
  21. ↑ Arthur Taylor "No prisoner voting rights a dangerous precedent" The New Zealand Herald (New Zealand, 27 January 2015) online ed.
  22. ↑ General Assembly's Universal Declaration of Human Rights 1948 (UDHR)
  23. 1 2 3 Sentencing Policy and Guidance: A discussion paper: Sentencing dangerous offenders. Ministry of Justice. 1997.
  24. ↑ New Zealand Bill of Rights Act 1990, s 9.
  25. ↑ New Zealand Bill of Rights Act 1990, s 22.
  26. ↑ New Zealand Bill of Rights Act 1990, s 27.
  27. ↑ New Zealand Bill of Rights Act 1990, s 5.
  28. ↑ Moonen v Film and Literature Board of Review 17 CRNZ 159 (1999).
  29. 1 2 HRC Report on Preventive Detention in NZ.
  30. ↑ Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to New Zealand (2015).
  31. 1 2 Working with offenders: being in prison: Health care Department of Corrections.
  32. 1 2 Mental health treatment and services in NZ prisons are inadequate. Just Speak.
  33. 1 2 3 National Health Committee. 2010. Health in Justice: Kia Piki te Ora, Kia Tika! – Improving the health of prisoners and their families and whānau: He whakapiki i te ora o ngā mauhere me ō rātou whānau. Wellington: Ministry of Health.

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