New Zealand: Crimes of Torture Act 1989

Title

An Act to make better provision for the punishment of crimes of torture, and to implement the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

BE IT ENACTED by the Parliament of New Zealand as follows:

1Short Title

This Act may be cited as the Crimes of Torture Act 1989.

2Interpretation

(1)In this Act, unless the context otherwise requires,---

"Act of torture‘' means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person---

(a)For such purposes as---

(i)Obtaining from that person or some other person information or a confession; or

(ii)Punishing that person for any act or omission for which that person or some other person is responsible or is suspected of being responsible; or

(iii)Intimidating or coercing that person or some other person; or

(b)For any reason based on discrimination of any kind; --- but does not include any act or omission arising only from, or inherent in, or incidental to, any lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights:

‘'The Convention'' means the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on10 December 1984:

‘'Conviction on indictment'' has the same meaning as in section 3 of the Crimes Act 1961:

‘'Fugitive Offenders Act 1881'' means the Fugitive Offenders Act 1881 of the Parliament of the United Kingdom (as amended by the Fugitive Offenders Amendment Act 1976):

‘'New Zealand'' includes all waters within the outer limits of the territorial sea of New Zealand (as defined by section 3 of the Territorial Sea and Exclusive Economic Zone Act 1977):

‘'Public official'' means ---

(a)Any person in the service of Her Majesty in right of New Zealand, including ---

(i)A member of any of the Armed Forces of New Zealand; and

(ii)A judicial officer and a law enforcement officer within the meaning of Part VI of the Crimes Act 1961; and

(iii)An officer within the meaning of the Penal Institutions Act 1954; and

(iv)A member and an employee of any local authority or public body; and

(b)Any person who may exercise any power, pursuant to any law in force in a foreign state, that would be exercised in New Zealand b any person described in paragraph (a) of this definition.

(2)Unless the context otherwise requires, and expression that is used both in this Act and in the Convention has, in this Act, the same meaning as it has in the Convention.

3Acts of torture

(1)Every person is liable upon convection on indictment to imprisonment for a term not exceeding 14 years who, being a person to whom this section applies or acting at the instigation or with the consent or acquiescence of such a person, whether in or outside New Zealand, ---

(a)Commits an act of torture: or

(b)Does or omits an ant for the purpose of aiding any person to commit an act of torture; or

(c)Abets any person in the commission of an act of torture; or

(d)Incites, counsels, or procures any person to commit an act of torture.

(2)Every person is liable upon conviction on indictment to imprisonment for a term not exceeding 10 years who, being a person to whom this section applies or acting at the instigation or with the consent or acquiescence of such a person, whether in or outside New Zealand, ---

(a)Attempts to commit an act of torture; or

(b)Conspires with any other person to commit an act of torture; or

(c)Is an accessory after the fact to an act of torture.

(3)This section applies to any person who is a public official or who is acting in an official capacity.

4Jurisdiction in respect of acts of torture

No proceedings for an offence against any of the provision of section 3 of this Act shall be brought unless---

(a)The person to be charged is New Zealand citizen; or

(b)The person to be charged is present in New Zealand; or

(c)The act or omission constituting the offence charged is alleged to have occurred in New Zealand or on board a ship or an aircraft that is registered in New Zealand.

5Attorney-General to consider question of compensation

(1)Where any person is convicted of an offence against section 3 of this Act, the Attorney-General shall consider whether it would be appropriate in all the circumstances for the Crown to pay compensation to the person against whom the offence was committed or (if that person dies as a result of the offence) to that person's family.

(2)Nothing in subsection (1) of this section shall limit or affect any right to compensation that any such person may have under any other enactment.

6Extradition Act 1965 amended

(1)Section 5 (1) of the Extradition Act 1965 is hereby amended by adding to paragraph (b) the word"; or ‘', and by adding the following paragraph:

"(c)If the Minister is of the opinion that there are substantial grounds for believing that the offender would be in danger of being subjected there to an act of torture.''

(2)Section 6 of the Extradition Act 1965 is hereby amended by adding the following subsection:

"(4)If the Minister of Justice is of the opinion that there are substantial grounds for believing that the offender whose surrender is requested would be in danger, if the request were granted, of being subjected to an act of torture, the Minister shall refuse to notify a District Court Judge of the request, and may also at any time order the offender to be discharged from custody.''

(3)Part II of the First Schedule to the Extradition Act 1965 (as substituted by section 4 (2) of the Extradition Amendment Act 1969 and amended by section 6 of the Aviation Crime Act 1972, section 10 (6) of the Misuse of Drugs Act 1975, and section 9 of the Crimes (Internationally Protected Persons and Hostages) Act 1980) is hereby amended by adding the following item:

 

The Crimes of Torture Act 1989	3 (1)	Committing or being a party to an act of torture
	3 (2)	Attempting or conspiring to commit, or being an accessory after the fact to, an act of torture."

 

7Fugitive Offenders Act 1881 amended

Section 29A of the Fugitive Offenders Act 1881 (as inserted by section 7 of the Fugitive Offenders Amendment Act 1976) is hereby amended by adding the following subsection:

"(3)Notwithstanding anything in this Act, a fugitive shall not be returned under Part I of this Act from New Zealand to a Commonwealth country if it appears to the Minister of Justice that there are substantial grounds for believing that the fugitive would be in danger of being subjected there to an act of torture.

"(4)Notwithstanding anything in this Act, a person accused of an offence shall not be returned under Part II of this Act from New Zealand to a neighbouring Commonwealth country without the consent of the Minister of Justice if it appears to any court before which the accused is brought, or to any court or Judge on an application for a writ of habeas corpus, that there are substantial grounds for believing that the accused would be in danger of being subjected there to an act of torture."

8Crimes deemed to be included in extradition treaties

(1)For the purposes of the Extradition Act 1965 and any order in Council made under section 3 of that Act or referred to in section 21 of that Act, each crime described in subsection (1) or subsection (2) of section 3 of this Act shall, if not already described in the treaty, be deemed to be an offence described in any extradition treaty concluded before the commencement of this section and for the time being in force between New Zealand and any foreign country that is a party to the Convention.

(2)Notwithstanding subsection (1) of this section, no person shall be liable to be surrendered under the Extradition Act 1965 in respect of an act or omission that amounts to a crime to which that subsection applies if that act or omission occurred before the date on which the crime was deemed by that subsection to be an offence described in the relevant extradition treaty.

(3)For the purposes of this section, the expression "foreign country" includes any territory for whose international relations the Government of a foreign country is responsible and to which the extradition treaty and the Convention extend.

9Surrender of offenders

(1)Where the surrender of a person is sought under wither the Extradition Act 1965 or the Fugitive Offenders Act 1881 in respect of any act or omission

(a)That amounts to any crime described in subsection (1) or subsection (2) of section 3 of this Act; and

(b)For which the person whose surrender is sought could be tried and punished in the country seeking surrender, being a country that is a party to the Convention,---

that act or omission shall be deemed to have been committed within the jurisdiction of that country notwithstanding that it was committed outside the territory of that country.

(2)Without limiting subsection (1) of this section, where any act or omission to which that subsection applies occurred in New Zealand, the Extradition Act 1965 and the relevant extradition treaty, or (as the case may require) the Fugitive Offenders Act 1881, shall apply with any necessary modifications as if the act or omission had occurred outside New Zealand.

(3)In this section, the term "country" includes any territory for whose international relations the Government of a country is responsible and to which the extradition treaty (if any) and the Convention extend.

10Restrictions on surrender of offenders

(1)Notwithstanding sections 6 to 9 of this Act, or the Extradition Act 1965 or the Fugitive Offenders Act 1881, a person whose surrender is sought in respect of any act or omission that amounts to a crime under subsection (1) or subsection (2) of section 3 of this Act shall not be surrendered from New Zealand to another country if it appears to the Minister of Justice, or to the Court before which that person is brought, or to any Court or Judge on an application for a writ of habeas corpus, that-

(a)The surrender of the accused, although purporting to have been sought in respect of such a crime, was sought for the purpose of prosecuting or punishing the accused on account of his or her race, ethnic origin, religion, nationality, or political opinion; or

(b)If the accused is surrendered, ---

(i)He or she may be prejudiced at his or her trial, or punished, detained, or restricted in his or her personal liberty, by reason of his or her race, ethnic origin, religion, nationality, or political opinions; or

(ii)His or her position may be prejudiced because communication with the accused by the appropriate authorities of the country that is entitled in international law to exercise rights of protection in respect to the accused cannot be effected.

(2)Notwithstanding sections 6 to 9 of this Act, but without limiting section 6 of the Fugitive Offenders Act 1881, the Minister of Justice may decline under the said section 6 to order the surrender of a person from New Zealand to another Commonwealth country in respect of any act or omission that amounts to a crime described in subsection (1) or subsection (2) of section 3 of this Act if it appears to the Minister that, in respect of the act or omission, the person has been sentenced to death or is liable to be so sentenced by the appropriate authority in the country to which his or her surrender is sought.

(3)Notwithstanding sections 6 to 9 of this Act or section 14 of the Fugitive Offenders Act 1881, no Judge shall, without the consent of the Minister of Justice, order the surrender under the said section 14 of a person from New Zealand to another Commonwealth country in respect of any act or omission that amounts to a crime described in subsection (1) or subsection (2) of section 3 of this Act if it appears to the Judge that, in respect of the act or omission, the person has been sentenced to death or is liable to be so sentenced by the appropriate authority in the country to which his or her surrender is sought.

11Further restrictions on surrender of offenders

(1)Notwithstanding sections 6 to 9 of this Act or the Extradition Act 1965 or the Fugitive Offenders Act 1881, no person shall be surrendered from New Zealand to another country in respect of any act or omission that amounts to a crime described in subsection (1) or subsection (2) of section 3 of this Act if proceedings have been brought in New Zealand against that person in respect of the act or omission.

(2)Notwithstanding sections 6 to 9 of this Act or the Extradition Act 1965 or the Fugitive Offenders Act 1881, but subject to subsection (3) of this section, no Court in New Zealand shall order the surrender, or the committal for the purposes of surrender, of a person to another country in respect of an act or omission that amounts to a crime described in subsection (1) or subsection (2) of section 3 of this Act if the Attorney-General certifies that the case is being or is about to be considered to determine whether or not proceedings should be brought in New Zealand against that person in respect of the act or omission.

(3)If, in any case to which subsection (2) of this section applies, it is subsequently determined that proceedings should not be brought in New Zealand against the person in respect of the act or omission, the Attorney-General shall advise the Court accordingly, and the Court shall proceed with the matter as if the Attorney-General's certificate had never been given.

12Attorney-General's consent required to prosecutions

(1)Subject to subsection (2) of this section, no proceedings for the trial and punishment of any person charged with a crime described in subsection (1) or subsection (2) of section 3 of this Act shall be instituted in any Court except with the consent of the Attorney-General.

(2)A person charged with a crime against any of those provisions may be arrested, or a warrant for his or her arrest may be issued and executed, and that person may be remanded in custody or on bail, notwithstanding that the consent of the Attorney-General to the institution of a prosecution for the crime has not been obtained, but no further proceedings shall be taken until that consent has been obtained.

13Evidence

For any purpose in connection with this Act, a certificate, given by the Secretary of External Relations and Trade or any Deputy Secretary of External Relations and Trade, certifying---

(a)That any country is or is not, or was or was not at any material time, a party to the Convention; or

(b)That the Government of any country is or is not, or was or was not at any material time, responsible for the international relations of any territory,---

shall be sufficient evidence of that fact.

14Application of certain provisions of Crimes Act 1961

(1)Nothing in section 8 of the Crimes Act 1961 (which relates to jurisdiction in respect of crimes on ships or aircraft beyond New Zealand) or in section 400 of that Act (which requires the consent of the Attorney-General to proceedings in certain cases for offences on ships or aircraft) shall apply with respect to any proceedings brought under section 3 of this Act.

(2)Except as provided in subsection (1) of this section, nothing in this Act shall limit or affect any of the provisions of the Crimes Act 1961.