“Disproportionate Incarceration Rates” of the Māoris in New Zeland

Human Wrongs Watch

A United Nations human rights panel has voiced concerns about issues related to the deprivation of liberty in New Zealand, including the “disproportionate incarceration rates” of the Māori population, despite legal safeguards against arbitrary detention. The members of indigenous group make up for more than 50 per cent of the prison population while they comprise some 15 per cent of the country’s population, the UN reported on 8 April 2014.*

Māoris singing and chanting at UN Headquarters in 2009. Photo: UNDP

Māoris singing and chanting at UN Headquarters in 2009. Photo: UNDP

Speaking in Auckland on 7 April 2014 at the end of their first official visit to the country, members of the UN Working Group on Arbitrary Detention noted that, overall, legislation and policy concerning deprivation of liberty in New Zealand is well-developed and generally consistent with international human rights law and standards.

At the same time, they urged the authorities to address a number of concerns. “If a prisoner has fully served the sentence imposed at the time of conviction, equivalent detention cannot be imposed under the label of civil preventive detention,” said expert Mads Andenas, who currently heads the Working Group.

Disproportionate Negative Impacts on Māori

“The substantive grounds for detention must be defined with sufficient precision to avoid overly broad or arbitrary application.” He stressed that the over-representation of Māori also poses “a significant challenge,” noting that the members of indigenous group make up for more than 50 per cent of the prison population while they comprise some 15 per cent of the country’s population.

The group urged the authorities to address the disproportionate negative impacts on Māori of criminal justice legislation extending sentences or reducing probation or parole, while recommending a review of the degree of inconsistencies and systemic bias against Māori at all the different levels of the criminal justice system.

“The authorities should continue searching for creative and integrated solutions to the root causes which lead to disproportionate incarceration rates of the Māori population in New Zealand,” he said.

Refugees, Asylum-seekers and Migrants, in Irregular Situation

During the visit, the group paid particular attention to the situation of refugees, asylum-seekers and migrants in an irregular situation. In 2012, the Government accepted 690 refugees from third countries for resettlement and made efforts to facilitate their integration in the country.

The experts noted that New Zealand is using the prison system and police stations to detain irregular migrants and asylum-seekers, although the country does not have a mandatory detention policy for asylum-seekers, refugees or migrants in an irregular situation.

“Detention of asylum-seekers, refugees and migrants in an irregular situation should normally be avoided and be a measure of last resort,” said Roberto Garretón, the other member of the group’s visiting delegation.

“Alternatives to detention should always be given preference. Humane and cost-effective mechanisms such as community release programmes can be very successful,” he underscored. Concerning the detention of persons with mental or intellectual disabilities, the experts pointed out that that the legislative framework is not effectively implemented to ensure that arbitrary deprivation of liberty does not occur.”

Compulsory treatment orders are largely clinical decisions and it is difficult to effectively challenge such orders,” Andenas said. “Persons undergoing compulsory assessments are often unrepresented in practice, as they do not have access to legal aid.”

Very Little Protection

The experts also noted that, despite the increasing phenomenon of older persons staying in residential care, there is very little protection available to ensure that they are not arbitrarily deprived of their liberty against their will.

Lastly, the expert group expressed concern that a notable gap remains in relation to the legislative protection available to children aged 17 years, who are considered as adults for penal responsibility effects, tried as adults and, if condemned, are sent to adult prisons.

The experts urged the authorities to extend protection measures to include 17 year olds, as recommended by the UN Committee on the Rights of the Child and the UN Committee Against Torture.

The final report of the group’s 15-day mission will be presented to the UN Human Rights Council in September 2015.

 Not a New Issue

The Maori situation has been previously addressed by UN experts. As “troubling” inequalities persist between Maori and non-Maori, New Zealand must press ahead with efforts to improve the human rights of its indigenous people, a United Nations independent expert said on 23 July 2010, the UN reported.**

The country has made efforts to address ongoing challenges on the issue, but “I cannot help but note the extreme disadvantage in the social and economic conditions of Maori people, which are dramatically manifested in the continued and persistent high levels of incarceration of Maori individuals,” said James Anaya, UN Special Rapporteur on indigenous people, in a statement.

“These troubling conditions undoubted result from the historical and ongoing denial of the human rights of Maori, which must continue to be addressed as a matter of utmost priority,” he added.

Anaya wrapped up a six-day visit today to New Zealand, where he met with Government and Maori representatives, as well as with civil society. He welcomed the country’s recent endorsement of the UN Declaration on the Rights of Indigenous Peoples.

In April 2010, New Zealand, which was one of four countries – the others being Australia, Canada and the United States – which voted against the Declaration in 2007, reversed its decision, joining Australia which took a similar move last year.

The Rights of the World’s Estimated 370 Million Indigenous People

The landmark document outlines the rights of the world’s estimated 370 million indigenous people and outlaws discrimination against them. “This declaration, far from affirming rights that place indigenous people in a privileged position, aims at repairing the ongoing consequences of the historical denial of the right to self-determination and other basic human rights,” Anaya said.

He spotlighted the process for settling historical and contemporary claims based on the 1840 Treaty of Waitangi, whose principles provide a foundation for Maori self-determination based on a real partnership between Maori and the State within a framework of respect for cross-cultural understanding and the human rights of all citizens.

The expert called the treaty settlement process “one of the most important examples in the world of an effort to address historical and ongoing grievances of indigenous peoples.”

But he said that during his visit to New Zealand, he heard complaints about the process similar to those reported by his predecessor, Rodolfo Stavenhagen, including the lack of Maori bargaining powering settlement negotiations and policies restricting transference of Maori lands back into their ownership or control.

On the 2004 Foreshore and Seabed Act, he took note of authorities’ efforts to repeal and reform the law, calling for adequate dialogue with the Maori and new legislation that “avoids any discriminatory effects and establishes measures to recognize and protect rights” of Maori over the foreshore and seabed.

Anaya, who reports in an independent and unpaid capacity to the Geneva-based UN Human Rights Council, urged the Government to provide constitutional security to the principles enshrined in the Treaty of Waitangi and related to internationally-protected rights. “From what I have observed, the treaty’s principles appear to be vulnerable to political discretion, resulting in their perpetual insecurity and instability,” he said.

*Source: UN Release.

**Source: UN Release.

Read also:

They, The Peoples!

Stop Violence against Indigenous Women, Indiscriminate Extraction of Resources 

Indigenous Bolivians Halt Transnational Highway Crossing the Amazon

2014 Human Wrongs Watch

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