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.
[4] Taking away the right to vote originated from early Roman times when those arrested were declared “civilly dead”.
[24] Those advocating for the ban argue that punishment for prisoners should include the loss of some rights to reflect the seriousness of the crime.
[27] This denial also sets a dangerous precedent for the removal of other human rights for prisoners,[28] and also contributes to inequality of all persons.
[29] In the 2015 decision of Taylor v Attorney-General,[30] the High Court made a formal declaration that a statute that prohibited prisoners from voting is inconsistent with the New Zealand Bill of Rights Act 1990.
[33] This was the first time a court had recognised that a formal declaration of inconsistency is an available remedy for statutory breaches of the Bill of Rights.
[37] In New Zealand's justice system, preventative detention has been imposed on convicted criminals for decades, but has been used with increasing frequency since the 1980s,[38] and is described It is a form of imprisonment, with no release date until approved by the Parole Board.
[39] 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[citation needed], but poses a risk of offending.
[42] The limitation of human rights was discussed in Moonen v Film and Literature Board of Review (1999) which remains the relevant authority today.
[43] 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.
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”.
[44] 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.
[49] In 2007 the New Zealand Government ratified the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
The objective of OPCAT is to establish a system of regular visits undertaken by an independent national body to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
The Ombudsman also has responsibility under the Crimes of Torture Act (COTA) for examining and monitoring the general conditions and treatment of detainees in New Zealand prisons.
The Ombudsman has criticised the Department of Corrections in a recent series of reports and investigations, citing ongoing issues with privacy, young persons, prisoner meal times and segregation facilities.
[51] Site visits are viewed and promoted as initiating an ongoing dialogue with detaining agencies, rather than a one-off engagement.
[51] In 2017, the Office of the Omudsman released two OPCAT reports by the Chief Ombudsman following unannounced inspections to Hawkes Bay prison[50] and Spring Hill Corrections Facility[54] under the Crimes of Torture Act 1989.
The ombudsman also concluded that this lack of privacy amounts to degrading treatment or punishment for the purpose of the Convention Against Torture.
[55] An hour of exercise, in the open air weather permitting, is a minimum legal entitlement and statutory right under sections 69(1)(a) and 70 of the Corrections Act.
[57] In 2017, the regime for remand accused prisoners remained an issue and was deemed unsatisfactory by the Chief Ombudsman, despite the recommendations made by the United Nations Subcommittee for the Prevention of Torture following its visit in 2013.
[59] Following an Ombudsman inspection in 2017, recommendations were made that youth prisoners should not be housed in the Management Unit unless they are subject to a segregated directive.
United Nations treaty bodies consistently recommend that juvenile offenders should not be subject to solitary confinement either as a disciplinary measure, or to separate them from the adult inmate population.
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.
[64] 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.
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.
The report found incidents of at-risk prisoners being restrained on tie-down beds by their legs, arms, and chest over prolonged periods; and in waist restraints with their hands cuffed behind their backs.
[65] In another case at Otago Corrections Facility, a prisoner was continuously kept in a waist restraint with his hands cuffed behind his back, after self-harming.
Despite a recommendation that the prisoner be treated by an experienced psychologist, this did not occur during the 12 weeks he was restrained with handcuffs or prior to his release into the community.
[66] Following the investigation, the Chief Ombudsman, Judge Boshier, concluded that the use of the tie-down bed and/or waist restraints in the circumstances of five prisoners amounted to cruel, inhuman or degrading treatment or punishment for the purpose of Article 16 of the Convention against Torture.