What we do

On 21 June 2007 the Ombudsmen were designated as a National Preventive Mechanism under the Crimes of Torture Act 1989:

“for the purposes of examining and monitoring the treatment of persons detained in:

• Prisons;
• premises approved and agreed under the Immigration Act 1987;
• health and disability places of detention; and
• youth justice residences established under section 364 of the Children, Young Persons and    Their Families Act 1989.”

This was to satisfy New Zealand’s commitment to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“OPCAT”) which it ratified by passing the Crimes of Torture Amendment Act 2006.  The objective of OPCAT is to establish a system of regular visits by international and national bodies (namely United Nations Subcommittee on the Prevention of Torture and designated National Preventive Mechanisms respectively) to places of detention in order to examine and monitor the conditions of detention and the treatment of detainees.

FUNCTIONS OF OMBUDSMEN UNDER COTA

Under Part 2 of the Crimes of Torture Act 1989 (COTA), the Ombudsmen now have the following functions in respect of the places of detention that are subject to their designation:

1. to examine, at regular intervals and at any other times the Ombudsman may decide:

1. a. the conditions of detention applying to detainees; and
   b. the treatment of detainees:

2. to make any recommendations they consider appropriate to the person in charge of the place of detention:

a. for improving the conditions of detention applying to detainees;
b. for improving the treatment of detainees;
c. for preventing torture and other cruel, inhuman or degrading treatment or punishment in places of detention:

3. to provide at least 1 written report each year on the exercise of their functions to the House of Representatives.  A copy of the report must also be provided to the Human Rights Commission as the Central Preventive Mechanism

It is the Ombudsmen’s intention to follow-up with both the person in charge of the place of detention and the relevant government agencies on the implementation of their recommendations.  This will meet one of the fundamental elements of the OPCAT monitoring process, namely to engage in ongoing dialogue with authorities, assist them to ensure conformity with standards and work at continuous improvement of conditions of detention. 

THE INSPECTION AND MONITORING PROCESS

Some of the key issues to be examined during visits could include:

• treatment
• protection measures
• material conditions
• regimes and activities
• medical services
• personnel

As it may not be possible to examine all aspects of detention during each visit, the Ombudsmen’s inspectors may decide to focus on identified priority objectives for each visit. 

Under the COTA, National Preventive Mechanisms are entitled to:

• access all information regarding the number of detainees, the treatment of detainees (including the rules and procedures of the facility) and the conditions of detention;
• unrestricted access to any place of detention for which it is designated, and to every part of that place; as well as access to any person in that place;
• interview any person, without witnesses, either personally or through an interpreter; and
• choose the places they want to visit and the persons they want to interview.

PROGRESS TO DATE

The Ombudsmen are currently in the process of determining the scope of their designation and the practical requirements of fulfilling their monitoring role under the Crimes of Torture Act 2006.  Senior staff, including the recently appointed Inspector (COTA) have undertaken preliminary visits to many of the facilities that fall within the Ombudsmen’s designation with a view to providing information about this new role, clarifying the inspection and monitoring process and familiarising themselves with the facilities and reporting requirements.  Formal visits began in late 2008.

SPECIFIC COMPLAINTS ABOUT THE CONDITIONS AND TREATMENT OF DETAINEES

The Ombudsmen’s role under COTA is confined to inspecting and monitoring.  If they receive a specific complaint about the conditions and treatment of persons in a place of detention:

1. the Inspector COTA will be advised so that the matter can be incorporated in the next monitoring visit; and
2. the complaint will also be considered for either investigation under the Ombudsmen Act or referral to another more appropriate investigation or review body.

INTERNATIONAL SUBCOMMITTEE

Under OPCAT, a UN Committee, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is established.  Sections 18 to 20 of the Crimes of Torture Act, entitle the International Subcommittee to:

• unrestricted access to information about the number and location of places of detention, the number of detainees, the treatment of detainees and the conditions of detention applying to detainees;
• unrestricted access to any place of detention in New Zealand and any person in a place of detention; and
• conduct interviews, without witnesses, with any person in a place of detention or any other person who the Subcommittee believes may be able to provide relevant information.

The Ombudsmen have not been advised when the first visit from the International Committee to New Zealand is to take place.

NOTE

A number of other agencies have also been designated as National Preventive Mechanisms, namely:

• The Independent Police Conduct Authority for the purpose of examining and monitoring the treatment of persons detained in police cells or otherwise in the custody of the police;
• The Children’s Commissioner for the purposes of examining and monitoring the treatment of children and young persons in youth justice residences established under section 364 of the Children, Young Persons and Their Families Act 1989; and
• Visiting Officers (appointed in accordance with the relevant Defence Force Orders issues pursuant to sections 175 and 206 of the Armed Forces Discipline Act) for the purpose of examining and monitoring the treatment of persons detained in NZDF Service Custody and Service Corrective Establishments.

The Human Rights Commission was designated as a Central Preventive Mechanism.