New Zealand Yearbook of International Law
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Claudia Geiringer[*]
In the decade-and-a-half since New Zealand acceded to the first Optional Protocol (‘the Optional Protocol’) to the International Covenant on Civil and Political Rights (‘the Covenant’),[1] the United Nations Human Rights Committee has received and determined a number of complaints brought by individuals against the New Zealand Government.[2] In Rameka et al v New Zealand the Human Rights Committee saw fit, for the first time, to uphold one.[3] It decided that New Zealand’s system of ‘preventive detention’, by which convicted offenders who are considered to pose a serious risk to the safety of the community can be given an indeterminate (open-ended) sentence of imprisonment, violated article 9(4) of the Covenant.[4]
As the first case in which New Zealand has been found in breach of the Covenant, Rameka provides a useful gateway through which to offer some reflections on the treaty body process. This case note examines the Rameka decision for the insights it has to offer as to the Human Rights Committee’s methodology, its reasoning process and its relationship with States parties. It also evaluates New Zealand’s response to the Rameka decision, concluding that it exhibits a somewhat lukewarm commitment to full engagement with the treaty body process.
The Rameka case (in the Committee’s parlance, the ‘communication’) was brought by three complainants (‘authors’), Messrs Rameka, Harris and Tarawa. Each had been sentenced to a term of preventive detention following convictions for sex offending.[5]
At the period relevant to the Rameka communication, New Zealand’s regime of preventive detention was contained in the Criminal Justice Act 1985 (NZ).[6] It provided the High Court with a discretion, once certain threshold criteria had been met and on being satisfied that it was ‘expedient for the protection of the public that [the offender] should be detained in custody for a substantial period’, to sentence an offender to preventive detention.[7] The consequence of a sentence of preventive detention was and is that the offender is sentenced to an indefinite period of incarceration. In essence, the offender remains imprisoned unless or until the Parole Board is satisfied that he or she no longer poses a significant danger to the public.[8] Even then, the offender is subject to the possibility of recall for the rest of his or her life.[9] Further, and significantly, according to the legislation in force at the time of the Rameka case, any offender subject to preventive detention was required to serve a minimum non-parole period of ten years imprisonment during which time his or her case did not come before the Parole Board for consideration.[10] A longer non-parole period could, in certain circumstances, be imposed by the Court.[11]
The three authors of the Rameka communication claimed widespread breaches of the Covenant arising from the application to them of the preventive detention regime. For the sake of convenience, the authors’ specific allegations can be divided into two categories.
First, a number of the authors’ allegations went to the legitimacy of preventive detention per se.[12] Thus, the authors claimed that the sentence of preventive detention amounts to the imposition of a penalty for crimes that have not yet been and might never be committed in breach of the presumption of innocence,[13] and that it is arbitrary because it is imposed on the basis of evidence as to future dangerousness, which is inherently unreliable.[14]
Secondly, a number of the authors’ complaints went more to the details of New Zealand’s preventive detention regime and its specific application to the authors.[15] These allegations were numerous and varied. One that is particularly worthy of note (because of the prominence given to it in the Committee’s reasoning) relates to the operation of the ten-year minimum non-parole period. The authors complained that the fact that offenders sentenced to preventive detention could not bring their cases before the Parole Board for review during that ten-year period gave rise to breaches of article 9 of the Covenant (paragraph 1, the right to be free from arbitrary detention and paragraph 4, the right to challenge the lawfulness of a detention) and that it also violated the standards of humane treatment found in articles 7 and 10 of the Covenant.[16]
The Committee issued its decision (its ‘view’) on the Rameka communication on 15 December 2003.
The Committee dealt first with the admissibility of the communication. New Zealand had contested admissibility on the basis, first, that none of the authors was yet the ‘victim’ of a violation of a right set forth in the Covenant.[17] New Zealand drew in this respect on an earlier decision of the Human Rights Committee, ARS v Canada,[18] in which the Committee had held inadmissible a complaint about a system of mandatory supervision on parole where the author’s earliest eligibility for parole was not for a further two years. Applying this logic, New Zealand argued that the three authors in Rameka were still serving the punitive (or deterrent) components of their sentences of imprisonment whereas the alleged violations related to the preventive (or protective) aspect of preventive detention. As the preventive phase of the authors’ sentences had not yet begun, New Zealand said, they were not yet ‘victims’ of the alleged violations.[19]
The Committee rejected this aspect of New Zealand’s admissibility challenge.[20] In ARS, the Committee said, the future application of the mandatory supervision regime to the author was speculative because it depended at least in part on his good conduct in the interim. In contrast, it was inevitable that, with the effluxion of time, the three authors in Rameka would be subject to detention for preventive purposes. Accordingly, the Committee concluded, it was neither necessary nor appropriate to require the authors to defer their communication.[21]
New Zealand had more success, however, with a further aspect of its admissibility challenge: an argument that one of the three authors, Mr Tarewa, had not exhausted all available domestic remedies.[2] Mr Tarawa had appealed his case to the Court of Appeal and, in common with the other two authors, had applied unsuccessfully for special leave to appeal to the Privy Council.[22] The Human Rights Committee accepted, however, that a further avenue of appeal was available to Mr Tarawa as a consequence of the fallout from R v Taito.[23] In Taito, the Privy Council had upheld a challenge brought by 12 appellants to the Court of Appeal’s practice of determining criminal appeals on the papers (without oral hearing) in any case where the appellant was not represented by counsel.[24] Mr Tarawa’s appeal against sentence had been determined in this manner. By the time the Rameka case came before the Committee, the upshot of the Taito litigation was that any person in Mr Tarawa’s position had been given the right to apply for a re-hearing of his or her appeal before the Court of Appeal.[25] On that basis, the Committee concluded that Mr Tarawa’s communication was inadmissible for failure to exhaust domestic remedies.[26] It is understood that Mr Tarawa has since been granted legal aid to enable him to pursue a fresh appeal to the Court of Appeal.
Finally as to admissibility, the Human Rights Committee considered that certain of the authors’ case-specific contentions (relating to the limited availability of rehabilitation courses while on preventive detention) were inadmissible for want of substantiation because the authors had given insufficient particulars.[27]
The Committee then proceeded to set out its view on the merits of the communication as respects the remaining authors, Messrs Harris and Rameka.
The Committee’s view was that a violation of the Covenant had occurred as a result of the impact on Mr Harris of the ten-year minimum non-parole period established by the Criminal Justice Act.[28] The Committee's finding in this respect hinged on a passing observation made by the Court of Appeal when substituting a sentence of preventive detention in Mr Harris' case. It said that the case would have warranted a finite sentence of ‘certainly not less than’ seven and a half years imprisonment.[29] Drawing on that observation, the Committee treated Mr Harris’ sentence of preventive detention as capable of division into two distinct phases: a punitive/deterrent phase (the seven and a half years adverted to by the Court of Appeal) and a preventive/protective phase (the remainder of his incarceration).[30]
The Committee’s concern with respect to Mr Harris was that the punitive/deterrent component of his sentence was shorter than the ten-year minimum non-parole period. Thus for the first two and a half years of the preventive/protective phase of Mr Harris’ detention, he would not be eligible to challenge the continued justification for his detention before the Parole Board. The Committee considered that this violated article 9(4) of the Covenant, which establishes the right of anyone who is deprived of liberty to take proceedings before a ‘court’ to have the lawfulness of the detention determined.[31]
That, however, was the extent of the breaches that the Committee found to have been established. In all other respects, the Committee was satisfied that New Zealand’s system of preventive detention met Covenant standards. Specifically, the Committee concluded that New Zealand’s system of preventive detention was not arbitrary, did not breach the presumption of innocence and did not breach the standards of humane treatment found in article 10.[32]
As to arbitrariness, the nub of the Committee’s view was that as long as certain criteria are met, there is nothing per se arbitrary about a system of detention for preventive purposes (that is, for protection of the public once a punitive term of imprisonment has been served). In order to be free from arbitrariness, the Committee said, detention for preventive purposes must be justified by compelling reasons that are periodically reviewable by a judicial authority and that remain applicable as long as the detention continues. The authors had not shown that the New Zealand system – compulsory annual reviews by the Parole Board, the decisions of which were subject to the review jurisdiction of the High Court – fell short of this standard.[33] Nor had the authors advanced any reasons why the Parole Board should be regarded as insufficiently independent, impartial or procedurally adequate to amount to a ‘court’ for the purpose of article 9(4).[34]
As to the presumption of innocence, the Committee dismissed the applicability of article 14(2) of the Covenant, which provides a right to ‘everyone charged with a criminal offence’ to be presumed innocent. No charge had, the Committee observed, been laid against the authors that would attract the applicability of this provision.[35]
The Committee concluded its view by reminding New Zealand of its obligations under article 2 of the Covenant to provide Mr Harris with an effective remedy and to avoid similar violations in the future.[36] It sought from New Zealand, within 90 days, information about the measures taken to give effect to its views.[37]
Strikingly, the Committee’s view on the merits was supported by only seven of the 16 members who participated in the examination of the communication. The other nine distanced themselves from the Committee’s view by subscribing to one of five dissenting opinions. The dissents split broadly into two camps: those who thought there were extensive violations of the Covenant and those who thought there were none at all. This left the seven members who supported the Committee’s official view commanding the middle ground.
In the first camp, a substantial minority (six members) considered that the communication disclosed far more extensive violations of the Covenant than accepted in the Committee’s view.[38] One of these six, Mr Kälin, accepted the premise that detention for preventive reasons is not per se violative of the Covenant but thought that regular review of both authors’ sentences should have been available from the sentences’ commencement. The Committee was, he thought, in error in dividing preventive detention up into a punitive and a preventive phase. The sentence was, in purpose and justification, protective (rather than punitive) from the outset and accordingly, regular reviews should have been available throughout.[39]
The other five went further and concluded that preventive detention is per se violative of the Covenant.[40] For Committee members Bhagwati, Chanet, Ahanhanzo and Yrigoyen detention based solely on an assessment of potential future dangerousness is necessarily arbitrary. The science underlying such an assessment, they said, is unsound and the forecasts made in accordance with it, impermissibly vague. For Committee member Lallah, the key relevant provision in the Covenant was one not expressly relied on by the authors, article 15(1), which says that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Two important features, he said, characterise article 15(1). First, a criminal offence relates only to past acts. Secondly, the penalty for that offence can only relate to those past acts. It cannot extend to some hypothetical future psychological condition that might or might not lead to further offending. In his view, therefore, violations of article 15(1) had occurred.[41] Additionally, he said, the facts disclosed violations of article 14(1) (the right to a fair trial), article 14(2) (the presumption of innocence) and article 9(1) (the right to freedom from arbitrary detention).
The final three members of the Committee fell into the other camp. They disagreed with the Committee’s view, but on the basis that there were no breaches of the Covenant whatsoever.[4] Like Mr Kälin, this group of dissenters believed that the Committee was in error in dividing the sentence of preventive detention up into a punitive and a preventive component. The sole purpose of a sentence of preventive detention, they said, is to protect the community against future dangerousness – it has no punitive element. Unlike Mr Kälin, however, these dissenters did not believe that a period of ten years without access to review of sentence was arbitrary or unreasonable ‘in the light of the conditions governing the imposition of such a sentence.’
Three features of the Committee’s decision in the Rameka case are worth emphasis.
The first is the remarkable diversity of opinions expressed by Committee members.[4] As noted above, nine of the 16 members who participated in the examination of the communication dissented from the Committee’s view on the merits. And the nine dissenters were themselves divided, the principal fault line being between those who considered that the authors’ communication disclosed far more widespread breaches of the Covenant than accepted in the Committee’s view; and those who considered that the authors’ communication disclosed no violations whatsoever.
Almost since its inception, the Committee’s preferred working method has been consensus, i.e., the absence of a formal vote.[43] In the case of individual communications, however, committee members are entitled to supplement the Committee’s so-called consensus views with dissenting or concurring opinions.[44] Consensus decision-making has had some benefits for the Committee, particularly during the Cold War era, but has also attracted widespread criticism. This is principally because it is thought to foster ‘lowest common denominator’ decision-making and a resultant lack of clarity, exposition and precision in the Committee’s jurisprudence.[45]
Although the Committee continues to employ consensus as its primary modus operandi, the Rameka case is part of a trend towards greater utilisation of the power to attach dissenting or concurring opinions.[46] Given the extent of the dissent in Rameka and some other recent cases,[47] it is to be wondered whether it is time to abandon the façade of consensus decision-making under the Optional Protocol and to adopt a majority voting procedure.[48]
The second feature worth comment is the circumscribed nature of the violation the Committee found to have been established. Rameka will go down in the annals of legal history as the first occasion on which a human rights treaty body held New Zealand in breach of one of the human rights treaties. The case is, though, just as significant for the breaches that were held not to be established.
It is helpful in this respect to view the Rameka case against the background of New Zealand’s previous dialogue with the Human Rights Committee on the subject of preventive detention. In 1995, in its concluding observations on New Zealand’s third periodic report, the Human Rights Committee identified New Zealand’s preventive detention regime as a ‘subject of concern’, baldly asserting that ‘[t]he imposition of punishment in respect of possible future offences is inconsistent with articles 9 and 14 of the Covenant’.[49] New Zealand’s response to this concern was to provide the Committee with comprehensive information about the workings of its preventive detention regime.[50] This did not, however, completely reassure the Committee. In its concluding comments on New Zealand’s fourth periodic report in 2001, the Committee continued to express concerns about New Zealand’s preventive detention regime and its impact on ‘article 15 rights in conjunction with other articles of the Covenant’.[51]
New Zealand did not, however, backtrack on its commitment to preventive detention. Indeed, in 2002, the New Zealand Parliament enacted new sentencing legislation that expands the reach of preventive detention. The parliamentary select committee that considered this legislation was aware of the Human Rights Committee’s concerns but was content to accept the assurance of Ministry of Justice officials that the Solicitor-General had advised that the legislation was consistent with New Zealand’s obligations under the Covenant.[52]
The background to Rameka, then, was something a standoff between the New Zealand Government and the Human Rights Committee over the permissibility of preventive detention. While the Committee continued to voice concerns about New Zealand’s preventive detention regime, the New Zealand Government maintained (and, indeed, deepened) its commitment to preventive detention as a sentencing option.
Against that background, and to the clear relief of the New Zealand Government,[53] the Committee’s view in Rameka can be seen as a significant back down. The Committee’s unambiguous finding that as long as certain criteria are met, preventive detention is neither arbitrary nor in breach of the presumption of innocence is an unmistakable retreat from its earlier position. Three tentative observations can be made about this retreat. The first is that it perhaps illustrates a wider tendency of the treaty bodies to be somewhat more robust in their criticisms of States parties during the reporting process than is necessarily sustainable in the quasi-judicial setting of an individual communication. The second is that it suggests that it would be wrong to think of the process of ‘constructive dialogue’[54] that States engage in with the treaty bodies during the reporting process as confined to the one-way transmission of values from the treaty body to the State. Rather the process is, at its best, a dialectical one in which all participants must be prepared on occasion to give ground. What is most important is the quality of the engagement. The third is that given the level of dissent in the Rameka case, it would dangerous to assume that the decision necessarily represents the Human Rights Committee’s final word on preventive detention and the Covenant.
Finally, some comment is appropriate as to the quality of the Committee’s reasoning. Linked to their criticism of consensus decision-making, a number of commentators have lambasted the Committee for a tendency towards brevity and lack of clear exposition in its articulation of Covenant jurisprudence.[55] Considered in the light of that criticism the Rameka decision is, if not exemplary, at least not entirely lacking in commendable qualities. The decision evinces some attempt by the Committee to articulate a clear jurisprudential basis for its principal conclusions, with the dissenting opinions serving as a useful counterpoint, bringing the Committee’s analysis into sharper relief. It is also worth noting that the major threads of the Committee’s analysis of Covenant rights are consistent with the jurisprudence of the European Court on Human Rights.[56] These include the view that detention for preventive purposes is not per se violative of Covenant rights, the idea that preventive detention can be notionally divided into a punitive and a preventive phase and the requirement that detention solely for preventive purposes be subject to regular review.
The weakest aspect of the Committee’s reasoning, however, is its application of Covenant rights to New Zealand’s complex sentencing regime. There are major deficiencies in the Committee’s grasp of New Zealand sentencing law and practice that make the decision difficult to apply.
One respect in which the Committee’s grasp of New Zealand’s sentencing regime is less than adequate is its failure to factor into its analysis the impact of final release dates on the period of imprisonment actually served by offenders subject to finite sentences of imprisonment under the Criminal Justice Act 1985 (NZ). Take Mr Harris’ case. If Mr Harris had in fact been sentenced to seven and a half years imprisonment then (unless the sentencing court had also specified a minimum period of imprisonment) his final release date would have been set at two thirds of his full sentence, that is, just short of five years imprisonment.[57] Surely, therefore, to the extent it is possible to deduce a notional punitive/deterrent period of imprisonment from the Court of Appeal’s observations in Mr Harris’ case, that period should be set at five years rather than at seven and a half. And on this analysis, there was also a violation of article 9(4) with respect to Mr Rameka, whose final release date would have been just short of nine and a half years, that is, less than the ten-year non-parole period.
This is not, however, the most significant empirical difficulty with the Committee’s analysis. The key problem is that the underlying conceptual premise of the Committee’s finding with respect to Mr Harris – that the sentence of preventive detention can be notionally divided into a punitive/deterrent and a preventive/protective phase – was not adequately reflected in the sentencing law and practice applicable at the time the authors’ cases came before the courts. The Criminal Justice Act 1985 (NZ) did not require sentencing courts to identify an appropriate punitive tariff for offenders being sentenced to preventive detention, and the fact that the Court of Appeal did identify such a tariff in Mr Harris’ case was pure happenstance. The entire edifice of the Committee’s reasoning with respect to Mr Harris is thus premised on a fortuitous observation that the Court of Appeal could just as easily not have made in the course of sentencing Mr Harris. This makes the decision difficult to apply outside its own facts as its application depends on a random variable: whether the sentencing court has happened to pass comment on an appropriate punitive tariff when sentencing the offender.
The Committee’s error in this respect is perhaps understandable. The Committee has started from the common sense premise that there is no reason why offenders sentenced to preventive detention should be able to seek review of their detention during a period of incarceration appropriate as punishment for the crimes they have committed. The Committee has then employed a method evident in relevant decisions of the European Court of Human Rights,[58] that is, it has searched the decision of the sentencing court for evidence of what an appropriate punitive tariff might be. What the Committee has failed to grasp, however, is that whereas the sentencing courts in the European cases were required under the relevant domestic law to identify an appropriate punitive tariff, no such requirement was imposed on judges under the Criminal Justice Act 1985 (NZ).
The Rameka decision thus leaves the domestic authorities in a potential quandary. What should they do in the situation of an offender who has been sentenced to preventive detention under the Criminal Justice Act 1985 (NZ) if the sentencing court has not given any indication of what the punitive component of the sentence might be? How, if at all, is the Rameka decision to be applied in such a case? At what point should such an offender be entitled to seek review of his or her detention?
Fortunately, the same dilemma does not arise with respect to offenders sentenced under the new sentencing regime. Under the Sentencing Act 2002 (NZ), the sentencing court is required to stipulate a minimum period of detention of not less than five years, during which a sentence of preventive detention is not subject to Parole Board review. In setting that period, the sentencing court is expressly directed to consider ‘the minimum period of imprisonment required to reflect the gravity of the offence’. [59] In the light of this direction, the decisions of sentencing courts under the new Act now uniformly discuss the appropriate punitive tariff for the offender.[60] In any event, because the new Act lowers the minimum non-parole period from ten to five years, the Harris situation (i.e., that of an offender sentenced to preventive detention whose appropriate, finite sentence is less than the non-parole period) is far less likely to arise under the new regime. This is, however, cold comfort to offenders sentenced under the Criminal Justice Act 1985 (NZ) as the relevant provisions in the Sentencing Act 2002 (NZ) are not retrospective.
It should come as no real surprise that the Human Rights Committee has struggled with the nuances of New Zealand’s sentencing regime. The Committee is, after all, an unremunerated body of experts,[61] who are required to churn through an extravagant caseload in the absence of adequate resources and without the benefit of oral hearings.[62] It is to be expected that it would excel more in the area of general statements of principle than in its precise grasp of domestic law and practice.
This does, however, have implications for States parties as to how they respond to the Committee’s views. I do not want to canvas here the circumstances, if any, in which States parties are entitled to refuse a remedy to an individual whose rights have been found by the Committee to be violated. The legal and pragmatic implications of such a default have been the subject of extensive commentary in recent years.[63] What I do want to suggest is that the Committee’s limited capacity to appreciate the niceties of each domestic legal system underlines the danger of treating the Committee’s views with undue formalism. It is, I suggest, a mistake to focus solely on the fine print of the Committee’s decision and to neglect the broader themes underlying the Committee’s reasoning process. In the Rameka decision, for example, the broad theme is the need to ensure that a person held on preventive detention for longer than is justified for punitive/deterrent purposes has access to regular reviews of his or her detention by an independent and impartial authority. It is this premise (rather than the Committee’s confused application of New Zealand sentencing law) that provides the most helpful guidance to New Zealand as to how it should regulate its future practice. A purposive rather than a formalistic response to the Rameka decision might, therefore, see the New Zealand Government conducting a careful review of its sentencing practice in light of this underlying theme. That is, of course, quite apart from any remedy that is owing to Mr Harris as a result of the Committee’s decision.
I turn in that light to consider New Zealand’s actual response to the Rameka case.
New Zealand presented its response to the United Nations on 3 February 2004, that is, within the 90-day period specified by the Committee.[64] The Government explained that it intended to provide a remedy to Mr Harris through the mechanism of section 25(3) of the Parole Act 2002 (NZ). This provision empowers the Minister of Justice to designate a class of offenders who have not yet reached their parole eligibility dates for early consideration by the Parole Board. The Government explained that the Minister of Justice proposed to designate as such a class offenders sentenced to preventive detention under the Criminal Justice Act 1985 (NZ) where three factors are present: first, a court has indicated that had preventive detention not been imposed, the offender would have been subject to a finite sentence of less than 10 years imprisonment; secondly, the offender has served a period of imprisonment equal or greater to that notional finite sentence; and thirdly, the offender has applied for early parole consideration.
This designation would, the Government said, remedy the deficiency identified by the Committee so far as Mr Harris and others in his position were concerned. The Government also advised the Committee that with the enactment of the Sentencing Act 2002 (NZ), the minimum non-parole period has been reduced from ten to five years, increasing the Government’s confidence that there would be no future violations.[65]
An evaluation of New Zealand’s response to the Rameka decision should begin by noting the expeditious manner in which New Zealand provided a remedy to Mr Harris. The Ministerial designation clearly redresses the breach of article 9(4) identified in respect of Mr Harris in that it enables Mr Harris to apply to the Parole Board for review of his detention once the seven and a half years of his notional punitive sentence have elapsed. Others in Mr Harris’ exact position will likewise benefit from the designation.
Praise for New Zealand’s response to the Rameka decision, however, must be tempered in two respects. First, it is worth noting the discrete nature of what was required of New Zealand to remedy the breach against Mr Harris. The violation was a fairly circumscribed one, relating to a narrow class of offenders and capable of being remedied through an existing statutory procedure (the designation procedure). Because Mr Harris had not yet reached the end of his notional punitive sentence, there was no question of compensation for the breach (itself, currently, a delicate political issue). Most importantly perhaps, the subject matter of the Committee’s decision – the availability of reviews – was peripheral to the underlying policy behind the preventive detention regime. In fact the New Zealand Government had some cause for celebration: its preventive detention regime had, in essence, been given a clean bill of health subject to some minor tweaking of the review requirement. It remains to be seen how the New Zealand Government will respond if or when a finding of violation by a human rights treaty body implicates a significant policy initiative or a matter involving domestic political sensitivities.
Secondly, I would suggest that the Government’s response to the Rameka decision is a regrettably formalistic one that fails to grapple fully with the broad themes underlying the Committee’s decision. My particular concern in this respect is that the Ministerial designation only applies if, as in Mr Harris’ case, the sentencing court has identified an appropriate punitive tariff in the course of its reasoning.[66] This creates the illogical position that whether or not an offender is entitled to early review depends on the happenstance of whether the sentencing court has passed observation on the appropriate finite sentence. If the sentencing court has not done so, the only recourse for the offender would be to seek to invoke the exceptional power of Parole Board members to themselves initiate an early review of an offender’s case.[67] In Rameka, however, the Human Rights Committee observed that the New Zealand Government had not been able to point to a single instance where this power had been utilised.[68]
A purposive response to the Committee’s decision in Rameka would, I suggest, involve the New Zealand Government attempting to apply the underlying premise of the Committee’s decision – that no offender should be denied access to review of his or her sentence once he or she has served an appropriate period of punitive detention – to all offenders sentenced to preventive detention under the Criminal Justice Act 1985 (NZ). That might, for example, involve the enactment of legislation to enable cases to be brought back before the High Court for judicial guidance as to an appropriate punitive tariff where no such guidance has previously been given.
A purposive response to the Committee’s decision might also involve addressing rather more carefully the possibility that the provisions governing minimum periods of detention in the new Sentencing Act 2002 (NZ) might likewise give rise to a breach of article 9(4). The Ministerial designation does not apply to offenders sentenced under the new regime. Given that the minimum period of detention has been lowered from ten to five years, it is certainly less likely that the Harris situation will arise with respect to an offender sentenced under the new provisions.[69] It is not, however, inconceivable. Further, it is arguable that section 89(2) of the Sentencing Act 2002 (NZ), relating to the setting of minimum periods of imprisonment, itself conflicts with the underlying premise of the Rameka case. Section 89(2) directs the court to set a minimum period of imprisonment that is the longer of the minimum period required to reflect the gravity of the offence or the minimum period required for the purposes of the safety of the community. It seems, therefore, to contemplate (indeed, demand) detention for preventive purposes without access to review.[70]
In summary, then, New Zealand’s response to Rameka is based on a reading of the Committee’s decision that is, I would suggest, narrow and legalistic. Although New Zealand has, to its credit, provided Mr Harris with a timely and adequate remedy, it has failed to engage with the underlying themes of the Committee’s decision and has thereby exhibited a commitment to the individual communication process that is, at best, half-hearted.
It is appropriate to end with a prediction that the saga of New Zealand, the Human Rights Committee and preventive detention is by no means over. The deficiencies in New Zealand’s response to the Rameka case identified above have the potential to found future violations that may find their way back before the Human Rights Committee. In addition, the Sentencing Act 2002 (NZ) gives rise to some problems of its own that have yet to be aired before the Committee. Some of these were raised by counsel for the authors, Mr Ellis, in his response to New Zealand’s response on Rameka.[71] The Committee took the view, however, that these matters really amount to a fresh communication and refused to address them in the context of follow up to the Rameka decision.[72] It is likely, therefore, that such matters will make their way back to the Human Rights Committee once they have been thoroughly aired in the domestic courts.
As far as the Human Rights Committee and the New Zealand Government are concerned, however, the Rameka case itself is now closed.
[*] BA (Hons) (Otago), LLB (Vic), LLM (Columb). Lecturer, Victoria University of Wellington. Thank you to Eddie Clark for his research assistance and to Petra Butler, Alberto Costi, Tony Ellis and Simon France for their feedback.
[1] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976; entered into force for New Zealand 28 March 1978); Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976; entered into force for New Zealand 26 August 1989).
[2] The UNHCHR website records, as of 3 May 2004, 23 communications brought against the New Zealand government of which one has still to be determined: UNHCHR, Statistical Survey of Individual Complaints dealt with by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights <http://www.unhchr.ch/html/menu2/8/stat2.htm> at 12 January 2005.
[3] Rameka et al v New Zealand (‘Rameka’), Communication No 1090/2002, UN Doc CCPR/C/79/D/1090/2002 (2003).
[4] Art 9(4) provides: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”.
[5] Mr Rameka and Mr Tarewa were sentenced to terms of preventive detention by the High Court and were unsuccessful in having those sentenced overturned on appeal. In Mr Harris’ case, the sentence was imposed by the Court of Appeal following the Solicitor-General’s successful appeal of his finite sentence.
[6] The relevant provisions in the Criminal Justice Act 1985 have since been repealed and the regime for preventive detention is now found in the Sentencing Act 2002 (NZ), read together with the Parole Act 2002 (NZ).
[7] Criminal Justice Act 1985 (NZ) s 75. The threshold criteria included restrictions as to the age of the offender, the nature of the offending, and, in cases not involving sexual violation, the nature of previous offending. See also Criminal Justice Act 1985 (NZ) s 75(1)(a), relating to the special circumstances in which a person convicted of sexual violation could be sentenced to preventive detention.
[8] Criminal Justice Act 1985 (NZ) ss 77, 104. For the current provisions, see Parole Act 2002 (NZ) ss 28, 82.
[9] Criminal Justice Act 1985 (NZ) ss 107I-N. For the current provisions, see Parole Act 2002 (NZ) ss 60-61.
[10] Criminal Justice Act 1985 (NZ) s 89.
[11] Criminal Justice Act 1985 (NZ) s 80(1). The members of the Parole Board retained an exceptional power to themselves initiate a review of an offender’s case prior to the elapse of the non-parole period: Criminal Justice Act 1985 (NZ) s 97(5). In Rameka, however, the Human Rights Committee observed that the New Zealand government had not been able to point to a single instance where this power had been utilised: Communication No 1090/2002, UN Doc CCPR/C/79/D/1090/2002, [7.2].
[12] Rameka, above n 3, [3.2, 3.4]. See, though, [5.2], where the authors appear to backtrack on the contention that preventive detention breaches the Covenant per se.
[13] Ibid, [3.4]. Art 14(2) of the Covenant provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.
[14] Ibid, [3.2]. Art 9(1) of the Covenant provides: “No one shall be subjected to arbitrary arrest or detention”.
[15] Ibid, [3.1-3.7].
[16] Ibid, [3.4, 3.6].
[17] Ibid, [4.8-4.9]. The right of communication is limited, under art 1 of the Optional Protocol, to individuals who claim to be ‘victims’ of a violation of the rights set forth in the Covenant. See also Rules of Procedure of the Human Rights Committee, rule 96(b), UN Doc CCPR/C/3/Rev.7 (2004).
[18] ARS v Canada, Communication No 91/1981, UN Doc CCPR/C/14/D/91/1981 (1981).
[19] Rameka, above n 3, [4.8-4.9].
[20] Ibid, [6.2].
[21] Ibid.
[22] Ibid, [4.10]. See arts 2 and 5(2)(b) of the Optional Protocol, which restrict the right of individual communication to those who have first exhausted domestic remedies. See also Rules of Procedure of the Human Rights Committee, above n 17, rule 96(f).
22 Rameka, above n 3, [2.7-2.8].
[23] [2003] 3 NZLR 577.
[24] Ibid.
[25] This right has been made available both by virtue of a statutory amendment (Crimes (Criminal Appeals) Amendment Act 2001 (NZ)) and by virtue of the inherent power of the Court (R v Smith [2002] NZCA 335; [2003] 3 NZLR 617). The former remedy is, however, more limited, as it is restricted to arguable cases of miscarriage of justice.
[26] Rameka, above n 3, [6.3].
[27] Ibid, [6.4].
[28] Ibid, [7.2].
[29] R v Harris (Unreported, New Zealand Court of Appeal, CA 167/00, 27 June 2000), [14].
[30] Rameka, above n 3, [7.2].
[31] Ibid, [7.2, 8]. The Committee did not extend the same logic to Mr Rameka’s case, presumably because Mr Rameka had been sentenced to a concurrent sentence of 14 years imprisonment on another count.
[32] Ibid, [7.3-7.4].
[33] Ibid, [7.3].
[34] Ibid, [7.4].
[35] Ibid.
[36] Ibid, [9].
[37] Ibid, [10].
[38] Ibid, Individual Opinion of Committee members Mr Prafullachandra Natwarlal Bhagwati, Ms Christine Chanet, Mr Glèlè Ahanhanzo and Mr Hipόlito Solari Yrigoyen; Individual Opinion of Committee member Mr Walter Kälin; Individual Opinion of Committee member Mr Rajsoomer Lallah.
[39] Ibid, Individual Opinion of Committee member Mr Walter Kälin.
[40] Ibid, Individual Opinion of Committee members Mr Prafullachandra Natwarlal Bhagwati, Ms Christine Chanet, Mr Glèlè Ahanhanzo and Mr Hipόlito Solari Yrigoyen; Individual Opinion of Committee member Mr Rajsoomer Lallah.
[41] Ibid, Individual Opinion of Committee member Mr Rajsoomer Lallah. An additional reason why article 15 was violated was, he said, that disproportionality resulted from the failure to prescribe a finite sentence.
[4]3 Ibid, Individual Opinion of Committee members Mr. Shearer and Mr. Roman Wieruszewski, in which Committee member Mr. Nisuke Ando joins; Individual Opinion of Committee member Mr. Nisuke Ando.
42 See Alex Conte, ‘Human Rights, Non-Parole Periods and Preventive Detention’ [2004] New Zealand Law Journal 202, 204.
[43] Rules of Procedure of the Human Rights Committee, above n 17, rule 51 and accompanying footnote; Laurence R Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale Law Journal 273, 361.
[44] Rules of Procedure of the Human Rights Committee, above n 17, rule 104.
[45] See for example Kirsten A Young, The Law and Process of the UN Human Rights Committee (2002) 48-55; Helfer and Slaughter, above n 45; Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991) 199; and J S Davidson, ‘Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee’ [2001] New Zealand Law Review 125, 138.
[46] See Helfer and Slaughter, above n 45; see also Young, above n 47, 59.
[47] See for example Diergaardt et al v Namibia, Communication No 760/1996, UN Doc CCPR/C/69/D/760/1997 (2000) (dissents from 11 of the 17 members who participated in the examination of the communication).
[48] See Henry J Steiner, ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?’ in Philip Alston and James Crawford (eds), The Future of UN Human Rights Treaty Monitoring (2000) 15, 43; Helfer and Slaughter, above n 45, 362; and Young, above n 47, 59.
[49] Consideration of Reports Submitted by States Parties under Article 40 of the Covenant - Concluding Observations of the Human Rights Committee: New Zealand, UN Doc CCPR/C/79/Add.47 (1995), [179].
[50] See for example Consideration of Reports Submitted by States Parties under Article 40 of the Covenant – Fourth Periodic Report of States Parties due in 1995: New Zealand, UN Doc CCPR/C/NZL/2001/4 (2001).
[51] Consideration of Reports Submitted by States Parties under Article 40 of the Covenant - Concluding Observations of the Human Rights Committee: New Zealand, UN Doc CCPR/CO/75/NZL (2002), [10].
[52] Advice from Ministry of Justice to Justice and Electoral Committee, 3 December 2001; Justice and Electoral Committee, Parliament of New Zealand, Report on Sentencing and Parole Reform Bill (2001).
[53] See New Zealand Permanent Mission to the United Nations at Geneva to Secretary-General, United Nations, Note No 2004/007, 3 February 2004.
[54] See for example Jane Connors, ‘An Analysis and Evaluation of the System of State Reporting’ in Anne F Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (Student Edition, 2000) 3, 6.
[55] See for example Steiner, above n 50, 42-43; Andrew Byrnes, ‘An Effective Complaints Procedure in the Context of International Human Rights Law’ in Bayefsky (ed), above n 56, 149-151.
[56] See for example Weeks v United Kingdom [1987] ECHR 3; (1987) 10 EHRR 293; Thynne, Wilson and Gunnell v United Kingdom [1990] ECHR 29; (1990) 13 EHRR 666. For a helpful comparative analysis, see: Frederic Pierre Bostedt, Does the Sentence of Preventive Detention in New Zealand Infringe the Human Rights of Dangerous Offenders? (LLM Research Paper, Victoria University of Wellington, 2003).
[57] Criminal Justice Act 1985 (NZ) s 90(1)(d). See s 105 for exceptions. See also Greg Newbold, ‘The Legality of Preventive Detention’ [2004] New Zealand Law Journal 205, 206 for a fuller analysis on this point.
[58] For example Weeks v United Kingdom [1987] ECHR 3; (1987) 10 EHRR 293; Thynne, Wilson and Gunnell v United Kingdom [1990] ECHR 29; (1990) 13 EHRR 666.
[59] Sentencing Act 2002 (NZ), s 89.
[60] See R v C [2003] 1 NZLR 30, 34-35.
[61] See Resolution on the Report of the Fifth Committee (A/56/653/Add.1), GA Res 56/272, UN GAOR, 56th sess, 97th plen mtg, UN Doc A/RES/56/272 (2002), setting the honorarium for members of the Human Rights Committee at US$1 per year.
[62] See for example Davidson, above n 47, 138-139.
[63] See for example Davidson, above n 47; Fausto Pocar, ‘Legal Value of the Human Rights Committee’s Views’ (1991-1992) Canadian Human Rights Yearbook 119.
[64] New Zealand Permanent Mission to the United Nations at Geneva to Secretary-General, above n 55.
[65] The designation was made soon thereafter. See ‘Designation of a Class of Offenders Who Have Not Yet Reached their Parole Eligibility Dates for Early Consideration by the Board for Parole’ [2004] New Zealand Gazette 417-418.
[66] But see R v Dean (Unreported, New Zealand Court of Appeal, Anderson P and Hammond, William Young, Chambers and O’Regan JJ, 17 December 2004), [10], in which the Court of Appeal suggested that the designation would apply to an offender who was sentenced to preventive detention under the Criminal Justice Act 1985 where the maximum finite sentence for the offence was seven years, even though the sentencing judge had not indicated an appropriate finite sentence.
[67] Criminal Justice Act 1985 (NZ) s 97(5).
[68] Communication No 1090/2002, UN Doc CCPR/C/79/D/1090/2002, [7.2].
[69] See Simon France, ‘Appeal Cases: Rights-Based Issues’ in New Zealand Law Society, Criminal Law Symposium (2004) 141, 147.
[70] Sentencing Act 2002 (NZ) s 89(2). See Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161, 180 (suggesting that it is simplistic to treat the mandatory component of prison sentences imposed in New Zealand as necessarily associated only with “just desserts” considerations. But see R (Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1.
[71] See Newbold, above n 59, 206-207.
[72] Markus Schmidt, Secretary of the Human Rights Committee to Mr Ellis, G/SO 215/51 NZ GEN, 19 April 2004. See also New Zealand Permanent Mission to the United Nations at Geneva to Secretary-General, Note No 2004/32, 26 March 2004.
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