Comment: Last week, important recommendations for our criminal justice system were made by the international community.
Every five years, each member of the United Nations has its human rights practices reviewed. This rolling event—the Universal Periodic Review—is the culmination of a government reporting on its human rights progress, submissions from civil society, and deliberation by other countries on what changes to recommend.
Our turn has come around again.
Diplomatic representatives from 88 countries gathered last week at the Palais des Nations in Geneva to make their recommendations to New Zealand. Twenty of the 259 recommendations related to incarceration. They included calls to improve prison conditions (Egypt), and address recidivism (Colombia and Ireland) and prison overcrowding (Canada).
But three subjects dominated.
The disproportionate impact of the justice system on Māori has been a persistent concern since our first review in 2009. It was again raised by Australia, South Korea, the United Kingdom, and Lebanon, and the over-representation of Māori in prison was the specific focus of Canada, Colombia, Costa Rica, the Czech Republic, Ireland, Italy, and Russia.
The Czech Republic and Ireland highlighted the high rates of incarcerated Māori women and young people. Russia’s representative appeared particularly passionate about Māori comprising more than a half of our prison population. He linked a need to incorporate the Treaty of Waitangi into our constitution and national legislation to effect change. Germany likewise asked what steps were being taken to support Māori implementing their own criminal justice initiatives in accordance with the Treaty.
This focus is important because it is too easy for us to see the disproportionate incarceration of Māori as intractable—a difficult fixture of the system rather than something engendering urgent action. Māori have comprised 50 percent or more of our prison population since 1980. In 1935, they were the clear minority (11 percent) in prison.
The Royal Commission of Inquiry into Abuse in Care documents links between the abuse of tamariki in state care, gang membership, and a “prison pipeline”, making this rise of Māori incarceration unsurprising. It suggests the need to invest in, look after, and support tamariki, and find intergeneration solutions to meaningfully address discrimination.
The increasing remand population was another matter that Minister of Justice Paul Goldsmith, who led the New Zealand delegation, didn’t shy away from. And how could he ignore it? Last year, the UN’s Committee against Torture clearly reprimanded New Zealand for its high number of remand prisoners and it wasn’t for the first time.
Fiji specifically raised this UN report and encouraged implementation of its recommendations. Likewise, Cameroon suggested we limit custodial remand to exceptional circumstances and for limited periods—a particularly important matter because we have no time limit for remand in custody.
Young people detained by police, and the 89 percent of Oranga Tamariki youth justice residents who are on remand, were the subjects of a German recommendation. It was right to highlight that something needs to change when the vast majority of youth prisoners have not been sentenced.
Such change could include raising the minimum age of criminal responsibility (currently 10) in line with international standards—a recommendation made by the Czech Republic, France, Gabon, Germany, Mongolia, and Norway. This was twice the number of countries that made similar recommendations in 2019, following which, New Zealand committed to consider raising the minimum age and consequently “officials have been working through the implications“.
The answer though is not simply one of law change. As Auckland University’s Professor Ian Lambie and his team concluded in 2022, we need “to consider, as a society, the structural and organisational factors of racism, social disadvantage and harm that need to be addressed, to allow these children and their families to flourish”. Their analysis of data on 48,989 children derived 11 recommendations that are now awaiting political common sense to implement them.
What happens next?
Our government will consider the recommendations and report back before the 57th session of the Human Rights Council in September. It will “accept” or “note” each recommendation. There is no option for rejection, leaving governments room to reconsider positions they once thought unachievable.
Everyone needs human rights, but not everyone daily depends on them. We can sometimes forget that some—such as people in prison—rely fundamentally on them for their health and wellbeing.
When no spotlight is shone in some corners of New Zealand, human rights breaches can become normalised. We saw this recently with the Prison Inspectorate’s revelation that 22 men in Auckland Prison were subjected to prolonged solitary confinement for more than 251 days. Such reports show we can’t ever take these rights for granted. Our proactive participation in the Universal Periodic Review is one important way to remember this.
This article was originally published on Newsroom.
Christine McCarthy is a senior lecturer in the School of Architecture at Te Herenga Waka—Victoria University of Wellington and a former president of the Wellington Howard League for Penal Reform.