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Human Rights Foundation Aotearoa New Zealand 5Th Periodic Report of the New Zealand Government United Nations Committee Against

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Human Rights Foundation Aotearoa New Zealand 5Th Periodic Report of the New Zealand Government United Nations Committee Against Human Rights Foundation Aotearoa New Zealand Alternative report on the 5th periodic report of the New Zealand Government under the International Convention Against Torture being considered by the United Nations Committee Against Torture April 2009 1. Introduction 1.1 This submission is on behalf of the Human Rights Foundation of Aotearoa New Zealand. It is an alternative report on the New Zealand government’s 5th periodic report to the United Nations Committee Against Torture. 1.2 The Human Rights Foundation is a non-governmental organisation, established in December 2001, to promote and defend human rights through research-based education and advocacy. We have made submissions on new laws with human rights implications. We also monitor compliance and implementation of New Zealand’s international obligations in accordance with the requirements of the international conventions New Zealand has signed, and have prepared alternative reports for relevant United Nations treaty bodies to be considered alongside official reports. Though the primary focus of the Foundation is on human rights in New Zealand, we recognise the universality of human rights and have an interest in human rights in the Pacific and beyond. 1.3 We appreciate this valuable opportunity to present our views to the Committee. 2. Executive Summary 2.1 This report seeks to provide the Committee with information which will assist its consideration of New Zealand’s periodic report (“the periodic report”). The periodic report covers many issues and we do not seek to address them all. Instead we focus on a number of issues of concern to us, in particular the use of Taser stun guns by New Zealand Police, and immigration issues. 2.2 In our discussion of the Taser stun gun we provide the Committee with information about the trial process itself; an analysis of incidents during the trial; and comment on international developments. In relation to immigration issues we provide information on asylum seeker detention; and discuss the provisions of the Immigration Bill, which passed its second reading in Parliament in March, which will impact immigration detention and the prevention of refoulement. We then make brief comment on New Zealand’s implementation of the Optional Protocol. ARTICLE 2 3. USE OF TASER STUN GUNS BY NEW ZEALAND POLICE 3.1 From 1 September 2006 to 1 September 2007, the TaserX26 weapon was trialed by frontline police officers in Waitemata, Auckland City, Counties Manukau and Wellington districts. Although the Taser trial raised very real and disturbing concerns about the use of the Taser by police officers, these have not been addressed. In August 2008 the 2 Police Commissioner made a decision to introduce Tasers to the New Zealand Police force and the initial rollout of weapons occurred in December 2008. Transparency and decision making: the trial process 3.2 The trial was marked by a lack of transparency and openness, such that a complaint was lodged by the Foundation with the Ombudsman in May 2007 when the Police withheld the majority of information from Taser incident reports. The police claimed that this was to protect the identity of officers and members of the public involved in the incidents. However, personal identifying details of the officers or members of the public had not been sought. 3.3 In June 2008 the Chief Ombudsman upheld the complaint, saying that the deletion of information about the trial was unjustified in the light of the strong public interest in the Taser issue. The Ombudsman recommended that police release the wrongly withheld information, and the incident reports were eventually made available online by the Police, but not until well after the decision to introduce the Taser had been announced. This effectively prevented any opportunity for meaningful assessment and comment by civil society and other independent commentators before the Tasers were introduced. 3.4 The Ombudsman stated in her decision that the information initially provided by the Police was “extremely brief, and have the effect of “sanitising” the original reports.” She emphasised the need for greater accountability in the trial. She wrote: “As the Police have recognised, the use of Tasers is an issue that is of major importance to all New Zealanders. Given that the decision on whether to equip Police with Tasers is an executive one, with no provision for Parliamentary oversight, Cabinet approval, or Ministerial sign off, I consider that there is a particularly strong public interest in the accountability and transparency of the Commissioner’s decision-making on this issue.”1 3.5 There is concern that Tasers remain unacknowledged as potentially lethal weapons, despite increasing numbers of deaths overseas following Taser use. There is also concern that the Taser will be used as a tool of routine force as opposed to one of last resort; and that vulnerable groups - such as those with mental health issues or children – will be subjected to electric shocks. Data reported in the Police trial evaluation do not alleviate these concerns, showing that 21% of Taser incidents involved people with mental health issues. The disproportionate use of the Taser on Maori and Pacific peoples was also demonstrated by the trial data, with 58% of incidents involving them.2 Breaches of Standard Operating Procedures during the trial 3.6 It is clear that there have been repeated breaches of the Standard Operating Procedures (SOP), the regulations drawn up by police to regulate Taser use during the trial. One aspect of this was the proportion of incidents involving Tasers in which the 1 Chief Ombudsman Beverley Wakim, 27 May 2008, quoted in Campaign Against the Taser press release ‘Call for Police to release ‘sanitised’ Taser info’, 6 June 2008, http://scoop.co.nz/stories/PO0806/S00064.htm. 2 New Zealand Police, February 2008, Operational Evaluation of the New Zealand Taser Trial, a report prepared Police Operations Group and the Evaluation Team at Police National Headquarters, pp.14, 63, 65-70. http://www.police.govt.nz/resources/2008/operational-evaluation- of-nz-Taser-trial/Operational_Evaluation_of_the_NZ_Taser_Trial_August_2008.pdf. 3 subject was assessed below the behavioural threshold for Taser use as stipulated in the SOP. The SOP are very clear about allowing the use of the Taser only when an offender is assessed as ‘within or beyond’ the assaultive range. However, a significant proportion of Taser incident reports from September 2006 to August 2007 record an assessment below assaultive. Of the 120 reports analysed, 9 recorded ‘active resistant’, 17 recorded ‘passive resistant’, 11 recorded ‘compliant’, 3 recorded ‘cooperative’ and 7 recorded ‘other.’ 3.7 Of the incident reports analysed, 35% percent of incidents involving the Taser between September 2006 and August 2007 were in breach of SOP in this way.3 This inability to conform to regulations, even in the heightened monitoring environment of a trial, raises grave concerns. It demonstrates the potential for the Taser to be misused or used in inappropriate situations. This has not been taken into account in the Police evaluation of the trial. Officer assessment prior to use of Taser, September 2006 – August 2007 Police GBH Assaultiv Active Passive Compliant Co- Other TOTAL District e Resistant Resistant operative Auckland City 7 10 4 3 2 1 1 28 Waitemata 4 14 2 4 1 0 0 25 Manukau City 4 10 1 1 4 0 0 20 Wellington 4 20 2 9 4 2 6 47 TOTAL 19 54 9 17 11 3 7 120 3.8 The graph below illustrates the number of incidents (numbers on left) during the trial which were in breach of the SOP, in that officers assessed the behaviour of the individual concerned to be below assaultive range (this omits the two recorded as ‘other,’ as further information on these incidents is unavailable). Thirty five percent of the total number of incidents included in the graph below were in breach of the SOP in this respect. Police assessments of Taser incidents, September 2006 - September 2007 80 70 60 50 40 30 20 10 0 Incidents within and beyond Incidents below assaultive range (in assaultive range (consistent with breach of SOP) SOP) 3 This is an updated analysis of that found in the Campaign Against the Taser report, Stun Guns in Aotearoa New Zealand? The Shocking Trial: a report on the New Zealand Police Taser trial, 1 September 2006 – 1 September 2007. http://www.converge.org.nz/pma/Tasertrial.pdf. The Human Rights Foundation is a member of the Campaign Against the Taser. 4 3.9 In three of the cases recorded that were below assaultive range, the Taser was fired. In all of those three, behaviour was recorded as ‘active resistant.’ In an incident in Auckland City on 1 October 2006, the Taser was fired 5 times, three times discharging probes and twice in ‘drive stun’ or contact mode. An innocent bystander was shocked in the process, which will be elaborated further below. On 11 December 2006, the Taser was fired twice in another Auckland incident. The third incident occurred in Manukau on 29 January 2007, when the Taser was fired twice. However, the majority of the 'below assaultive' cases employed presentation, laser painting or arcing. In this sense, the analysis of the trial above graphically demonstrates the temptation to use the tactic of ‘laser painting’ as a compliance mechanism in situations below assaultive. 3.10 This reflects the concern noted by the Auckland District Law Society in December 2006, around the ‘erosion of the weapon’s ‘last resort’ status through ‘laser painting’…and the risk of a casualness developing amongst police officers in their approach to the weapon and being tacitly endorsed through a lack of insistence on strict compliance with the guidelines…there is a very fine line between the tactic of laser painting and actually firing the weapon.’4 3.11 It needs to be emphasised that the analysis above relies on police documents and the assessments recorded by police officers themselves.
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