#NewZealand

Academic News & Views: Twelve Years On – Reflections on New Zealand’s NPM

Some twelve years into its existence New Zealand barrister and High Court solicitor Michael White has offered some fascinatingly detailed insights into the operation of the country’s NPM.

Frequent visitors to this website will recall that New Zealand’s multi-body NPM is no stranger to these pages. Comprising some five different specialized bodies with the New Zealand Human Rights Commission executing the overall coordination role, the NPM’s operation has not been entirely without issue.

In an article titled ‘The role and scope of OPCAT in protecting those deprived of liberty: a critical analysis of the New Zealand experience’ author Michael White advances a balanced account of the functioning in practice of the mechanism. The academic piece appears in the Australian Journal of Human Rights’ tremendous Special Issue on the OPCAT, several articles from which have been showcased in these pages in recent weeks.

The focus on the New Zealand NPM is of particular interest to these pages, as Canada is also likely to adopt a multi-body structure as its future NPM.

Twelve years
Christchurch Police Car in The Sq. by NCSphotography (2010).

To briefly recap, the New Zealand NPM comprises five different specialized bodies, including: New Zealand Human Rights Commission; Office of the Ombudsman; Independent Police Conduct Authority; Office of the Children’s Commissioner; and the Inspector of Service Penal Establishments. More detailed information about the detention responsibilities of the different NPM bodies can be found on the Human Rights Commission’s website.

In his article, Michael White casts the operation of the New Zealand NPM for the most part in a positive light, as follows:

“Since 2007, OPCAT in New Zealand has developed and become a strong part of New Zealand’s human rights framework … The impact of OPCAT monitoring on the rights of those deprived of their liberty in New Zealand is significant. For example, positive progress includes upgrades and modifications to facilities; changes to policy and practice; and in a number of instances, identifying and addressing issues or problems relating to the situation of individuals in detention. However, this has not been without challenges.” (2)

In doing so, the author enumerates the various areas where clear gains have been made in terms of improvements. Such advances have included, among other things, the following:

  • The establishment of the NPM in 2007 introduced for the first time the independent monitoring of closed health and disability settings. Through the new NPM mandate independent monitors have been able to scrutinizes practices affecting the rights of persons detained in such locations;
  • Police policies and training have been updated to better identify risks and to prevent deaths in custody;
  • Despite on-going problems regarding their practice (as also highlighted in the article) the use of seclusion and restraint practices are now subject to better management processes;
  • Improvements have been implemented to the way sentencing orders are recorded and monitored, resulting in more timely access to parole hearings;
  • The introduction of systems have been ensured to track the use of force and search procedures;
  • Various improvements have been made to conditions of detention;
  • And there has been a raising of awareness of the situation of vulnerable groups in detention, especially LGBTQI.

As highlighted in a recent post, just as the Norwegian NPM, the Parliamentary Ombudsman, has been a driver of change, the New Zealand mechanism has similarly been a catalyst for betterment.

Twelve years
Australian Journal of Human Rights – image copyright of the AHRC Centre at UNSW Sydney.

Nonetheless, some very tangible challenges exist, of which funding remains a very significant factor. Michael White has underscored this key point:

“While NPMs all have a degree of structural independence, in practice independence can be compromised due to funding arrangements, resource constraints and existing operating measures. These issues will need to be continually reviewed as OPCAT continues to mature in Aotearoa, New Zealand.

The impact of resource constraints should not be underestimated. Monitoring visits in New Zealand are generally carried out by between one and four people. Furthermore, visit teams are not truly pluralistic as envisaged by OPCAT. They do not represent people with lived experience, or the diversity of the population (and more specifically the detained population). Furthermore, at times they lack the specific professional expertise to monitor a wide-ranging ambit of detention settings.” (13)

The author also notes that the regularity of visits undertaken by the NPM has been restricted by existing resources.

Somewhat surprisingly, the NPM does not widely publish the outcome of its activities, which is also rightly deemed to be problematic in the eyes of Michael White. According to this legal expert, until recently the NPM only published an Annual Report and no other reports of its monitoring activities were readily available. In contrast, other NPMs do regularly publish reports above and beyond just an annual document.

Finally, as a further challenge, the scope of OPCAT Article 4 and the legal understanding of deprivation of liberty in New Zealand is more limited than might be the case elsewhere. However, Michael White acknowledges that this discussion is on-going:

“In June 2018, the Minister of Justice gazetted new responsibilities for the Office of the Ombudsman under its OPCAT mandate. The Ombudsman is now responsible for monitoring dementia units in private aged care facilities (as well as court cells). While this is a significant step forward, there are still a wide range of places where people are or may be deprived of their liberty that are not covered by New Zealand’s NPM designations, such as community disability residences, aged care homes and educational facilities.”

This same point also relates to the deprivation of liberty of persons in residential care by dint of their lack of legal capacity. The author underscores the potential role the NPM might play in relation to the New Zealand’s international obligations under the UN CRPD in this same regard.

Based of these twelve-year-long OPCAT reflections the writer advances a list of some nine key elements, which he deems crucial for an effective and OPCAT-compliant framework. These key elements include NPM attributes such as independence, mandate, resourcing, transparency and accountability, collaboration, expertise, and engagement with civil society, among other essential items. If Canada is to institute an effective NPM, all nine elements should be taken heed of by the Canadian authorities.

In summary, the experiences of the New Zealand NPM are there to be drawn on by Canadian actors, more so at a time when OPCAT ratification is said to be under consideration in the country (despite the absence of any public information about progress in this regard). In his highly engaging article Michael White succeeds in great measure in highlighting the gains made by the NPM over the past twelve years as well as the existing challenges facing the New Zealand multi-body mechanism.


Many thanks once again to Steven Caruana for his assistance in relation to this post.

The above article was published in the current issue of the Australian Journal of Human Rights, on 16 April 2019. The article can be accessed free-of-charge here.

Read an overview of other articles in the Special Issue on the OPCAT of the Australian Journal of Human Rights, including on immigration detention and the OPCAT.

Lean more about the operation of the New Zealand NPM.

Visit the New Zealand Human Rights Commission’s website on the OPCAT.

Posted by mp in New Zealand, NPMs, OPCAT