Human Rights Committee

Consideration of reports submitted by States parties under article 40 of the Covenant

New Zealand*

Information received from New Zealand on the implementation of the concluding observations of the Human Rights Committee (CCPR/C/NZL/CO/5)

[11 April 2011]

I.Introduction

1.On 25 March 2010, the Human Rights Committee adopted concluding observations on New Zealand’s fifth periodic report (CCPR/C/NZL/CO/5). The Committee requested relevant information, within a year, on three of its recommendations related to over-representation of Māori in prison (paragraph 12 of the concluding observations), terrorism suppression and the police action known as ‘Operation Eight’ (paragraph 14), and the review of the Foreshore and Seabed Act 2004 (paragraph 19). This paper provides further information and outlines developments on these issues over the past 12 months.

II.Over-representation of Māori in Prison

A.Introduction

2.In its response to the Committee’s list of issues, and during the examination of the fifth periodic report, the New Zealand Government explained work being undertaken through the Addressing the Drivers of Crime initiative to reduce the over-representation of Māori in the criminal justice system. This paper updates the Committee on progress that has been made as part of the Addressing theDrivers of Crime initiative as well as other steps taken by the New Zealand Police, the judiciary and the Department of Corrections. It also describes the Whānau Ora (family well-being) programme which is a new way of delivering Government social services so that Māori communities are able to access those services when needed.

3.The New Zealand Government acknowledges that Māori are significantly over-represented in the New Zealand criminal justice system. Māori represent about 15% of the New Zealand population but make up over half of all people in prison and serving community sentences. Māori are also more likely to be victims of crime. In 2005, 47% of all Māori aged 15 years and over were victims of crime. This was 1.3 times the European rate and 1.2 times the total New Zealand rate.

4.The New Zealand Government recognises that it faces a long-term challenge to improve the effectiveness of the criminal justice system and to address the underlying causes of Māori over-representation in prisons. It is also aware that, in addition to central government intervention and leadership, local government and community groups have crucial roles in preventing crime through:

(a)Encouraging strong parenting models, positive peer group interactions;

(b)Providing support to at risk families; and

(c)Building communities’ ability to raise neighbourhood consciousness and address local conditions.

5.Māori communities, with their particular tradition of voluntary effort, extended family support networks, cultural practices and communal institutions have pivotal roles to play in building group identity and pro-social obligations.

B.Research on over-representation of Māori in the criminal justice system

6.A report by the Department of Corrections in 2007 analysed two possible (though not mutually exclusive) explanations for the over-representation of Māori in the criminal justice system:

(a)Bias in the criminal justice system, such that any suspected or actual offending by Māori has harsher consequences for those Māori; and

(b)A range of adverse early-life social and environmental factors resulting in Māori being at greater risk of offending as adults.

7.The report concluded that, although there were indications of a degree of over-representation that related solely to ethnicity, the disproportionality related mostly to known risk factors. The report therefore concluded that government intervention is needed in the areas of health, social support and education, as well as early intervention by criminal justice sector agencies.

8.In 2009, the Ministry of Justice published a literature review Identifying and Responding to bias in the Criminal Justice System: A Review of International and New Zealand Research. The review identified the same potential causes of Māori over-representation in the criminal justice system as the 2007 report. The review concluded that a comprehensive policy approach was needed to take into account three different aspects of ethnic disproportionality:

(a)Addressing the direct and underlying causes of ethnic minority and indigenous offending;

(b)Enhancing cultural understanding and responsiveness within the justice sector; and

(c)Developing responses that identify and seek to offset the negative impact of neutral laws, structures, processes and decision making criteria on particular ethnic minority groups.

9.The findings of both studies are reflected in government action to address Māori over-representation in the criminal justice system. Addressing these issues requires determined effort, not just of government but also of non-government organisations, communities and Māori groups.

C.Prioritising Māori within the Government’s Addressing the Drivers of Crime Initiative

10.Addressing the Drivers of Crime is a whole-of-government approach to reducing offending and victimisation, with a particular focus on improving outcomes for Māori. It co-ordinates the activities of several government agencies to address underlying causes of offending and prioritises activities to address Māori.

11.The underlying causes of offending and victimisation are both complex and varied. They require a wide range of interventions, including early prevention for those at risk of becoming offenders or victims and effective rehabilitation of those who have offended. Over the medium-term it is expected that the Addressing Drivers of Crime initiative will contribute to reduced offending, re-offending and victimisation, particularly for Māori.

12.Addressing the Drivers of Crime focuses on four areas that have a demonstrated link to crime, each with its own inter-agency working group:

(a)Improving maternity and early parenting support;

(b)Addressing conduct and behaviour problems in children and young people;

(c)Reducing harm from alcohol; and

(d)Alternative approaches to managing low-level offenders.

13.Work is underway on each of these four work streams and progress is reported regularly on the Ministry of Justice website.Developments over the last 12 months are summarised below.

1.Improving maternity and early parenting support

14.In 2010, the inter-agency group on the improvement of maternity and early parenting support focused on understanding links between maternity and early parenting support services and identifying who uses these services and who may be missing out.

15.Examples of results so far include a Maternity and “WellChild” needs assessment and care planning tool for early intervention. This tool has been in use in Porirua and Waikato since January 2011, and will ensure that needs are more consistently identified and referred to the appropriate places.

16.The inter-agency group has recognised a need to strengthen the relationship between Māori and the maternity and early childhood services available to them through:

(a)A cross-departmental approach that assiststhe most at-risk families in dealing with the underlying causes of their problems;

(b)Māori maternity health providers and WellChild outreach (screening, education and support services offered to all New Zealand children and their families from birth to five years); and

(c)Co-located early years education and health services.

17.Increasing the effectiveness of maternity and parenting support for Māori from birth through childhood aims to promote positive parenting and whānau (family) environments. This includes reducing family violence and improving health and education to reduce further offending.

2.Addressing conduct and behaviour problems in children and young people

18.The inter-agency group for this work stream has noted that services must be holistic, and Māori designed, developed and delivered interventions are needed. Examples of progress over the past 12 months include:

(a)The Positive Behaviour for Learning Action Plan to support 15,000 parents, 7240 teachers (in 400 schools) and Māori providers over four years. Evidence-based school wide and parenting programmes can significantly reduce conduct problems;

(b)Implementing mentoring and activity programmes through Fresh Start for young offenders and those at risk of offending and determining how best to engage Māori in services that effectively address behavioural problems or the factors driving them.

3.Reducing harm from alcohol

19.Throughout 2010, the inter-agency group on reducing harm from alcohol has focussed on the Government’s alcohol law reform. This has a particular focus on reducing the harm being experienced by young people. The Alcohol Law Reform Bill, introduced into the House of Representatives in November 2010, aims to minimise alcohol-related harm, including crime, disorder and public health problems. In particular, the Bill will let communities have a greater say about local licensing decisions.

20.The next phase of action for this inter-agency group includes:

(a)Developing options to improve offenders’ access to treatment services and ensuring those services are more responsive for Māori; and

(b)Training more front-line agency staff in screening and ‘brief interventions’ for people with mild to moderate levels of problematic alcohol use.

4.Alternative approaches to managing low-level offenders

21.The inter-agency group for this work stream is focusing on:

(a)Effective connections between social and justice sector agencies so that low-level offenders get the assistance and services they need;

(b)Developing court and corrections actions that can reduce offending, such as promoting use of pre-sentence adjournments to enable offenders to get treatment; and

(c)Working with communities to establish local solutions to deal with low-level offenders and support reduced reoffending in the community.

22.In the past 12 months progress has included the establishment of two Community Links in Courts programmes which help to link offenders and victims with social services they may not have been receiving. A community justice panel initiative is being supported to keep low level offenders out of the formal criminal justice process, while still providing accountability and reparation to the community. Both these initiatives have potential to be particularly relevant to Māori communities. Investigation of ways to bring in other agencies services to support Rangatahi (Youth) Courts (discussed below) is also underway.

D.Whānau Ora

23.Over the longer term, ensuring that Māori engage in the supports and services that improve their wellbeing across a range of outcomes will be critical to the goal of reducing Māori over-representation in the criminal justice system. Whānau Ora is essentially about empowering Māori communities to meet the needs of people in those communities. It is an inclusive, culturally-anchored approach to designing and delivering services and opportunities to whānau across New Zealand.

24.Whānau Ora is not a one size fits all approach. It is deliberately designed to be flexible to meet whānau needs and will be influenced by the approach the whānau chooses to take. Whānau Ora will work in a range of ways and empowers whānau as a whole, rather than focusing solely on individual whānau members and their problems. It also requires multiple government agencies to work together with whānau and families rather than separately with individual family members.

25.Twenty-five Whānau Ora providers, consisting of service providers with a range of health and social services, have been contracted by Te Puni Kōkiri (the Ministry of Māori Development) to produce a Programme of Action for moving from the status quo to delivering whānau-centred services.

26.Some of the service models will lead to whānau having a practitioner to work with them to identify their needs, broker their access to a range of health and social services, and develop tools to enable whānau to identify and take opportunities to meet their needs.

27.Regional leadership groups have also been established in ten regions covering the country, with representatives from communities sitting alongside local agencies to ensure that change occurs locally.

28.Research, evaluation and monitoring will measure results and gauge the success of the design, implementation and impact of Whānau Ora. It will help providers refine the systems, processes and programmes delivered to support whānau to achieve their goals and aspirations.

E.Police initiatives

1.Iwi Liaison Officers

29.Iwi Liaison Officers operate at a community level and concentrate on improving Police and Māori relationships. Iwi Liaison Officers are widely supported by local Māori and iwi (tribes). The panels that appoint Iwi Liaison Officers also include local kaumātua (respected Māori elders or leaders).

30.On a day-to-day basis Iwi Liaison Officers engage with Police and Māori to increase Māori participation and input into policy, planning, recruitment, and operations, and mobilise and collaborate with key service providers (Māori and non-Māori) to deliver interventions to reduce offending and victimisation, and improve perceptions of safety. Iwi Liaison Officers also communicate with iwi and hapū (sub-tribe) on crime priorities (such as problems around methamphetamine or ‘P’) and work with Māori communities to share ownership of problems and develop solutions together.

2.Māori Wardens

31.Te Puni Kōkiri and New Zealand Police have worked together since 2007 to expand the support for Māori wardens, including training and better resources for their work. Māori wardens work in their communities to promote community safety, prevent offending and intervene early to de-escalate problems, working closely with Iwi Liaison Officers in New Zealand Police. Since 2007, the number of warranted Māori wardens has increased from 495 to 920.

3.Community work

32.Iwi, Community and whānau-based activities can help instil values and attitudes in young people which deter them from offending and help them to be resilient to victimisation. This process is about self-determination whereby iwi and community leaders become actively involved in addressing the different aspects of the problem.

33.Te Puni Kōkiri has supported the research, writing and development of Iwi Crime Prevention Plans since this idea was initiated in 2006 by an Iwi Leaders working with New Zealand Police at a national level. Several iwi have developed or are preparing Iwi Crime Prevention Plans with the assistance of District Police Commanders. These plans look at offending and victimisation in their regions, and their own capability in addressing these issues. A common theme is the need to identify young people at risk of crime before offending and victimisation escalates, with an emphasis on mentoring youth at schools, assisting struggling families, and addressing family violence.

34.Te Puni Kōkiri maintains an active role, for example, funding Te Rūnanga o Ngāti Whātua (the Governance entity for the Ngāti Whātua iwi) to facilitate research and development of the Iwi Led Crime Prevention Plan, with other Iwi, for Auckland Metro Region.

4.Human Rights Training

35.Since 2008, the New Zealand Police have implemented mandatory Human Rights training for all staff. This training is to be replaced by a Diversity Induction Programme which has a specific focus on discrimination and will give police employees knowledge and information to enable them to work with diverse communities and fellow staff members effectively.

36.The programme will be a Human Rights induction tool for all new staff. A separate programme will be designed for those seeking promotion. The programme will include eight modules covering the bigger diversity picture and include Māori, Pacific peoples and ethnic communities. The modules for this training course cover intercultural awareness and communication, Māori, Pacific peoples, ethnic communities, gender equity, sexual orientation and gender identity, generation mix (including elderly), and Disability.

37.The Department of Corrections does not have any specific Human Rights training. The Initial Training Course (Induction training) is being revised at present and specific Human Rights training is under analysis. The Induction training currently contains sessions on “Responsiveness to Māori” and “Cultural Diversity in a Prison”. Training on Māori approaches to rehabilitation takes place in a marae (Māori community-based meeting place), and on Māori approaches to suicide in “Whakamomori”. More training on diversity takes place in “Avoid and Deal With Conflict in a Prison”.

F.Judicial and court-based initiatives

38.In order to address the over-representation of Māori in prison, the judiciary is considering how provisions in the Sentencing Act 2002 and District Courts Act 1947 can support court processes to deal more effectively with Māori who come before the courts. For example, Rangatahi Courts are a judicially-led initiative that works within the current judicial system and processes but operates at a different venue and with a strong Māori cultural input. It locates part of the Youth Court process on a marae in an attempt to engage whānau in the process, reconnect young offenders with their culture and reduce their risk of re-offending. Currently there are six Rangatahi Courts in operation.

39.The Rangatahi Courts involve frequent reviews (fortnightly in most cases) of the young person's progress with their Family Group Conference plan (a meeting convened or reconvened by a care and protection co-ordinator or a youth justice co-ordinator) by the same Judge. This allows a relationship to be established between the Judge, the offender and their whānau as well as other court parties. This increased connection and engagement is aimed at getting greater completion and compliance with Family Group Conference plans, reducing their risk of re-offending.

40.Rangatahi Courts are not a separate justice system for Māori but a way of using the marae or cultural centre and tikanga Māori (customary uses and practices) within the Youth Court legal structure. While focussed on young Māori, both Māori and non-Māori are eligible for the process.

G.Department of Corrections Initiatives

41.Rehabilitation and reintegration are important in reducing reoffending by helping prisoners gain the skills and support they need to effectively reintegrate into the community. The Whare Oranga Ake (‘House of Renaissance’) programme is a new initiative funded in the 2010 Budget which aims to significantly reduce re-offending, particularly by Māori. It aims to support prisoners, including low-level offenders, in the last stages of imprisonment to gain employment, find suitable accommodation and build healthy family and wider social relationships.

42.Whare Oranga Ake is designed to focus on prisoners’ reintegrative needs. Whare Oranga Ake units will focus on reintegration through a kaupapa Māori (set of values, principles and plans agreed upon as a foundation for actions) setting outside the main prison grounds on a 16-bed whare (dwelling place) and communal facility. This means that Māori practices, language and values will be woven through the day to day activities and interactions of the units. A skilled Māori community service provider will lead the approach and services delivered in Whare Oranga Ake and will be in charge of the day-to-day running of the unit.

43.Prisoners in Whare Oranga Ake units will be provided opportunities to develop life skills for living on the outside. This will enhance the prospects of their successful reintegration back into local communities and reduce the risk of further offending. Prisoners will be encouraged to participate in employment, education and post programme rehabilitation, to find supported accommodation and improve whānau relationships, as well as to establish positive relationships with Māori in the community.

44.Two Whare Oranga Ake units will open in 2011. While targeted at Māori offenders it will be open to all prisoners who meet the eligibility criteria. There will be a review in 2012, after which the units may expand in 2013 to a 32-bed unit. As a typical stay will be nine months, a 32-bed unit will provide for an average of 42 residents a year.

45.It is anticipated that Māori Focus Units will be a natural starting point for prisoners wishing to participate in Whare Oranga Ake when they are nearing release. Māori Focus Units are situated within the secure perimeter of the prison. These aim to reduce an offender's risk of re-offending by:

(a)Helping participants understand and value their Māori culture and its evolution;

(b)Helping participants understand how their Māori culture influences themselves, their families and their communities;

(c)Motivating participants to change their behaviours with the support of other intervention programmes; and

(d)Staff and prisoners working together to learn and apply the principles of tikanga Māori to thoughts, beliefs and actions.

III.Terrorism Suppression and Operation Eight

A.Status of Prosecutions Related to Operation Eight

46.As a result of the Police action undertaken primarily in and around Ruatoki on 15 October 2007, 18 people are facing serious charges under the Arms Act 1983. The Solicitor General dismissed an application from the Police to lay charges under the Terrorism Suppression Act 2002. The trials of those charged are due to begin on 30 May 2011. The timing of the trials reflects the very considerable number of pre-trial applications and appeals by both prosecution and defence counsel. The New Zealand Government is still unable to comment in detail while court proceedings are still underway.

B.Complaints to Independent Bodies

47.The Independent Police Conduct Authority is conducting an investigation into whether there was any misconduct or neglect of duty on the part of the Police, including in response to complaints made by lawyers acting for people in the Ruatoki area and by others. That report will be released in 2011.

48.The Human Rights Commission has received complaints under the Human Rights Act alleging discrimination and other breaches of human rights standards. Complaints to the Commission are dealt with by way of dispute resolution. Complainants can, if not satisfied with the outcome of the Commission’s dispute resolution procedures, pursue proceedings in the Human Rights Review Tribunal and can seek publicly funded legal representation to do so.

C.Police Engagement with Ruatoki Community

49.The New Zealand Police continue to engage with the Ruatoki community about the unintended negative consequences of Operation Eight. Māori, Pacific and Ethnic Services (MPES) has facilitated ongoing dialogue between Police and key members of the Tuhoe people over the past two years.  The Commissioner of Police visited the Ruatoki in 2010, at Rewarewa Marae. The National Manager of MPES, Superintendant Wallace Haumaha, and the Commissioner will meet again with representatives of the Ruatoki community in the near future. Local Iwi Liaison Officers have maintained close relations with Tuhoe.  Iwi Liaison Officers are widely supported by Māori and the panels that appoint them include local kaumātua.

D.Law Commission Project on Public Safety and Security

50.Following the decision of the Solicitor-General not to allow prosecutions to proceed under the Terrorism Suppression Act, the New Zealand Law Commission (an independent organisation that reviews areas of the law that need updating, reforming or developing) was asked to consider and report on:

(a)Whether existing legislation, including the Crimes Act 1962 and the Arms Act 1983, should be amended to cover the conduct of individuals that creates risk to, or public concern about, the preservation of public safety and security; and

(b)The means of obtaining evidence in relation to that conduct, taking into account the need to balance protection of individual privacy with the effective detection and investigation of criminal offences, and the use of that evidence in proceedings for criminal offences.

51.The Commission was asked to take into account the need to ensure an appropriate balance between the preservation of public safety and security and the maintenance of individual rights and freedoms. This work is on hold due to other work priorities for the Commission.

IV.Review of the Foreshore and Seabed Act 2004

52.The Foreshore and Seabed Act 2004 (2004 Act) was passed as a response to the Court of Appeal decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (Ngāti Apa). The Ngāti Apa case brought into question the nature and extent of the Crown’s ownership of the foreshore and seabed. This decision held that the Māori Land Court could investigate claims that areas of the foreshore and seabed had Māori customary land status. The decision was a jurisdictional one; it did not determine whether parts of the foreshore and seabed were Māori customary land.

53.The 2004 Act vested ownership of the public foreshore and seabed in the Crown. It prevented the Māori Land Court from determining whether areas of the foreshore and seabed had the status of Māori customary land. The 2004 Act also removed the power of the High Court to determine claims for common law customary title. Instead, the 2004 Act created new powers for the High Court and Māori Land Court and allowed for the recognition of the following two types of customary interests in the foreshore and seabed:

(a)Territorial customary rights (a new form of customary title created by the 2004 Act); and

(b)Customary rights (uses, activities and practices that do not require land ownership).

54.There was a strong, negative response to the 2004 Act. A hīkoi (walk) of approximately 50,000 people protested against the legislation outside Parliament. There was national criticism by the Waitangi Tribunal who found that the policy underpinning the legislation breached the Treaty of Waitangi and discriminated against Māori. Representatives of the United Nations also criticised the 2004 Act for its discriminatory effect.

55.In March 2009 the government appointed a Ministerial Review Panel (Panel) to provide independent advice on the 2004 Act. The terms of reference instructed the Panel to provide independent advice on:

(a)What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to the Ngāti Apa case;

(b)What options were available to the Government to respond to the Court of Appeal decision inthe Ngāti Apa case;

(c)Whether the 2004 Act effectively recognises and provides for customary or aboriginal title and public interests including Māori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua; and

(d)If the Panel has reservations that the 2004 Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interest in the coastal marine area could be recognised and provided for; and in particular, how processes of recognising and providing for such interests could be streamlined.

56.In undertaking this work, the terms of references instructed the Panel to:

(a)Consider the approaches in other Commonwealth jurisdictions to recognise and provide for customary and public interests in the coastal marine area;

(b)Consider the submissions by the public and other publicly available reports made to the Fisheries and Other Sea-related Legislation Select Committee in 2004 on the Foreshore and Seabed Bill and the Waitangi Tribunal’s 2004 Report on the Crown’s Foreshore and Seabed Policy; and

(c)Undertake consultation with Māori and the general public through a series of public meetings and hui (meeting or gathering).

57.The Panel was also encouraged to invite key commentators to speak to it and to receive written submissions.

58.The Panel undertook extensive public consultation. It met with all iwi and hapū who were in foreshore and seabed negotiations with the Crown when the review of the 2004 Act was announced. Twenty-two public meetings and hui were held throughout the country. The Panel met with key commentators who had particular expertise and interest on the issue. The Panel also met with 30 nationally significant interest groups to hear their views on the 2004 Act.

59.The Panel received 580 submissions. Approximately 85% of those submitters who expressed a view on the issue favoured repeal of the 2004 Act. Approximately 5% of those submitters who expressed a view on the issue favoured retention of the 2004 Act.

60.The Panel reported to the government on 30 June 2009 and made the following findings about the 2004 Act:

(a)It discriminated against Māori;

(b)It was wrong in principle and approach;

(c)It drew on inappropriate legal tests;

(d)It was contrary to the Treaty of Waitangi and to human rights; and

(e)It should be repealed and the process of balancing rights started again.

61.The government developed policy in response to the Panel’s report. This draft policy was included in a Consultation Document that was made publicly available on 31 March 2010. In April 2010 the government undertook public consultation on the proposals contained in the Consultation Document.

62.The Iwi Leaders Group, a group of leaders of some of the major iwi in New Zealand, was consulted throughout the policy development process. All groups who were in foreshore and seabed negotiations when the review of the 2004 Act was announced were also consulted.

63.Consultation took place with a number of interest groups including business interests, local authorities (i.e. councils), the New Zealand Human Rights Commission, recreational and conservation groups.

64.The consultation on the Consultation Document informed the development of the Marine and Coastal Area (Takutai Moana) Bill (the Bill). The Bill was introduced to Parliament on 6 September 2010 and was considered by the Māori Affairs Committee. The Committee received public submissions on the Bill and reported back to the House of Representatives on 9 February 2011. The Bill passed through its remaining stages during March 2011 and came into force as an Act on 1 April 2011.

65.The policy objective of the Act is to achieve an equitable balance of the interests of all New Zealanders in the marine and coastal area (geographically similar the foreshore and seabed). The Act repealed the 2004 Act and states that the common marine and coastal area (which excludes land in private title) is not owned, and cannot be owned, by any person. The Act provides that customary interests in the common marine and coastal area are to be given legal expression in accordance with the Act. Any claims to customary interests that were extinguished by the 2004 Act are to be considered as if that Act had not been enacted and will be considered under the new legislation.

66.The Act differs to the 2004 Act in many ways. Key differences relating to customary interests are:

(a)The Act seeks to bring New Zealand law into line with other common law jurisdictions, and take a more principled approach to determining rights, by removing certain requirements for establishing customary marine title;

(b)The Act explicitly includes tikanga Māori in the test for customary rights and title; and

(c)By allowing for shared exclusivity and customary transfers after 1840 the Act introduces a more culturally appropriate way of testing customary interests than was contained in the 2004 Act.

Annex

Glossary of Māori Terms

Hapū – sub-tribe

Hīkoi – walk

Hui – meeting or gathering

Iwi – tribe

Kaumātua – respected Māori elders or leaders

Marae – Māori community-based meeting place

Rangatahi – youth

Te Puni Kōkiri – Ministry of Māori Development

Tikanga Māori – customary uses and practices

Whānau – family

Whānau Ora – family well-being

Whakamomori – suicide (noun) or to commit suicide (verb)

Whare – dwelling place

Whare Oranga Ake – House of Renaissance