CAT/OP/NZL/1 A. Legal framework 19. The Subcommittee notes that article 9 of the New Zealand Bill of Rights Act protects the right of everyone not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment. That prohibition is reiterated in the Crimes of Torture Act 1989, which also provides for penalties for the crimes of torture (art. 3). The prohibition of torture is complemented by a comprehensive normative framework in the area of criminal justice. However, the Subcommittee is deeply concerned at legislative gaps, which reflect the reservations the State party has made to article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to article 37 (c) of the Convention on the Rights of the Child. The reservation to article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment unduly restricts the rights of victims of torture to fair and adequate compensation, including the means for full rehabilitation. 5 The reservation to article 37 (c) of the Convention on the Rights of the Child, allowing mixing of young and adult prisoners in some circumstances, compromises the right of juveniles to be accorded treatment appropriate to their age. 20. The Subcommittee is also concerned that section 12 of the Crimes of Torture Act, confers wide discretion on the Attorney General to decide whether or not to prosecute a person charged with a crime falling into the definition of an act of torture. Section 12 stipulates that “no proceedings for the trial and punishment of any person charged with a crime” of torture, any inchoate offence or as accessory after the fact to the offence of torture or related to torture “shall be instituted in any court except with the consent of the Attorney-General”. The Subcommittee learned with deep concern that the Attorney General can refuse consent to prosecute a crime of torture solely on the grounds that it is in the public interest not to do so. The Subcommittee believes that it can never be in the public interest to decline consent to prosecute a crime of torture. 21. The Subcommittee notes that the granting of bail in any form is ultimately an essentially judicial function and the legislative framework which makes provision for it must reflect the basic principles of the rule of law, including the separation of powers. The Subcommittee is deeply concerned at the proposed amendments to the Bail Act 2000 (Bail Amendment bill), which removes the strong presumption in favour of bail for persons aged 17-20, who have previously been sentenced to a term of imprisonment. The bill also includes a proposal to reverse the presumption in favour of bail for class A drug offenders, placing the burden of demonstrating why it should be granted on the applicant. The Subcommittee is concerned that these amendments will have a negative impact on the number of young persons held on remand and the length of time spent on remand, which is already a matter of grave concern. Furthermore, the Subcommittee is deeply concerned that the bill could exacerbate the disproportionately high number of Maori in prison, given the high rate of Maori recidivism and the number of Maori currently on remand. 22. The Subcommittee is also concerned that the Immigration Amendment bill 2012 proposes the mandatory detention of asylum seekers and persons who fall within the statutory definition of a “mass arrival”, namely those arriving in a group of more than 10 persons. The Subcommittee is concerned that the proposed amendments may have the effect of depriving persons in need of protection of their liberty, based solely on the manner of their arrival in the State party. The Subcommittee struggles to see how, for instance, the arrival of two families of six persons constitutes a mass arrival, necessitating such treatment. 5 6 Section 5 of the Crimes of Torture Act confers the power on the Attorney General to consider whether it would be appropriate for the Crown to pay compensation to a victim of torture or any member of the victim’s family.