Taunoa v Attorney-General [New Zealand, Supreme Court.]
| Jurisdiction | New Zealand |
| Court | Supreme Court |
| Judge | Elias CJ,Blanchard,Tipping,McGrath,Henry JJ |
| Judgment Date | 31 August 2007 |
| Date | 31 August 2007 |
New Zealand, Supreme Court.
(Elias CJ; Blanchard, Tipping, McGrath and Henry JJ)
Relationship of international law and municipal law Treaties International human rights instruments International jurisprudence International standards International Covenant on Civil and Political Rights, 1966 New Zealand Bill of Rights Act 1990 affirming New Zealand's commitment to International Covenant Sections 9 and 23(5) of Bill of Rights Act 1990 giving effect to Articles 7 and 10(1) of International Covenant Relationship between Section 23(5) and Section 9 of Bill of Rights Act 1990 Relevance of international standards Standard of behaviour required of New Zealand authorities Treatment in prison International obligation to give effective remedy Article 2(3) of International Covenant Whether obligation part of New Zealand's domestic law
Human rights Prohibition of cruel, degrading or disproportionately severe treatment or punishment Prison inmates Conditions Segregated cell confinement Lack of exercise opportunity Practice of strip-searching Failure to check mental health conditions Whether constituting cruel, degrading or disproportionately severe treatment or punishment Relevance of legislative standards Interpretation of Section 9 of Bill of Rights Act 1990 Relationship between Section 23(5) and Section 9 of Bill of Rights Act 1990 Approach in determining whether breach of Section 9 of Bill of Rights Act 1990 International human rights instruments and resulting jurisprudence Relevance International Covenant on Civil and Political Rights, 1966 Section 9 of Bill of Rights Act 1990 giving effect to Article 7 of International Covenant Whether breaches of Section 9 of Bill of Rights Act 1990
Human rights Right to natural justice Prison inmates Appellants alleging breaches of Section 27(1) and Section 9 of Bill of Rights Act 1990 in addition to finding of breach of Section 23(5) Whether Behaviour Management Regime (BMR) lawful Whether breaching Section 9 of Bill of Rights Act 1990 in amounting to cruel, degrading or disproportionately severe treatment or punishment Whether deprivation of right to natural justice contributing to severity of treatment under BMR Whether declaration of breach of Section 27(1) of Bill of Rights Act 1990 necessary
Damages Compensation Human rights violations Breach of Bill of Rights Act 1990 International obligation to give an effective remedy Article 2(3) of International Covenant on Civil and Political Rights, 1966 Whether part of New Zealand's domestic law Whether declaratory relief sufficient for breach of Bill of Rights Act Whether awards of compensation appropriate as remedy Quantum of awards Whether properly assessed Whether excessive The law of New Zealand
Summary:2The facts: The appellants, Messrs Taunoa, Robinson, Tofts, Kidman and Gunbie, were maximum security prisoners who had been subjected to the Behaviour Management Regime (BMR)3 while held in Auckland Prison for varying periods between 1998 and 2004. The BMR had been introduced by the Department of Corrections in 1998 to manage the behaviour of extremely disruptive prisoners. It involved a highly controlled system based on degrees of segregation with stringent conditions and progressive phases for improved behaviour. The appellants brought a claim against the Attorney-General in respect of the Department of Corrections alleging a breach of Sections 94 and 235 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act).6 They also contended that the BMR was unlawful since it failed to comply with the Penal Institutions Act 1954 (PIA) and the 2000 Regulations. The appellants sought declaratory relief and damages.
The High Court7 and the Court of Appeal both held that the appellants had not been treated with humanity and respect for inherent dignity under the BMR in breach of Section 23(5) of the Bill of Rights Act. No breach of Section 9 of the Bill of Rights Act was found, however, except by the Court of Appeal in relation to Mr Tofts.8 They also held that the BMR was unlawful. They granted the appellants declaratory relief and damages.
The appellants appealed. They argued that they had all suffered a breach of Section 9 of the Bill of Rights Act, as well as a breach of Section 23(5), and that there had also been a breach of Section 27(1) of the Bill of Rights Act.9 They also maintained that the compensation awarded was inadequate to constitute an effective remedy. The Attorney-General cross-appealed. He argued that the declaratory relief was sufficient or, if compensation was appropriate, that the amounts awarded were excessive.
Held: (by four votes to one, Elias CJ dissenting) The appeals were dismissed and the cross-appeals were allowed in part.
Per Blanchard J: (1) Prisoners placed on the BMR had been subjected to an unlawful regime. There was a fundamental mismatch between non-voluntary segregation, as envisaged by Section 7(1A) of the PIA, and the BMR. For the BMR lawfully to achieve its aim of deterring unacceptable behaviour through the removal and progressive restoration of privileges, it could not be imposed in the guise of non-punitive administrative segregation (paras. 13845).
(2) It was helpful to consider Sections 9 and 23(5) of the Bill of Rights Act in light of their counterparts in human rights instruments10 and resulting jurisprudence. The International Covenant on Civil and Political Rights was the most comparable in terms of language since the Bill of Rights Act was intended to affirm it. Its Article 7 was broadly equivalent to Section 9 and its Article 10(1) virtually identical to Section 23(5). In applying Articles 7 and 10(1) the Human Rights Committee had differentiated between degrees of humanity in a way that was not possible under Article 3 of the European Convention on Human Rights (paras. 14669).
(3) As with the International Covenant, degrees of reprehensibility were evident in Sections 9 and 23(5) of the Bill of Rights Act. Section 9 concerned outrageous conduct of great seriousness while Section 23(5) proscribed conduct of a lesser order.
(a) Torture was the worst conduct involving deliberate infliction of severe physical or mental suffering for a particular purpose, such as obtaining information. Next was cruel treatment or punishment which resulted in severe or deliberately inflicted suffering but lacked ulterior purpose. Treatment or punishment was degrading if it gravely humiliated and debased the person subjected to it whether or not that was its purpose. Disproportionately severe treatment or punishment had no counterpart in human rights instruments but performed the same role as inhuman treatment in Article 7 of the International Covenant and gross disproportionality in Section 12 of the Canadian Charter (paras. 1706).
(b) Section 23(5) was a positive instruction to protect a person deprived of liberty and therefore particularly vulnerable from conduct which lacked humanity, but was not cruel, which was demeaning but not degrading and which was excessive in the circumstances, but not grossly so (para. 177).
(4) While the application of Sections 9 and 23(5) of the Bill of Rights Act would be influenced by jurisprudence under the international human rights instruments, a higher standard of behaviour might be required of New Zealand authorities. Decisions would also be influenced by the United Nations Minimum Rules for Treatment of Prisoners endorsed in the Corrections Act (paras. 17882).
(5) There had been no breach of Section 9 of the Bill of Rights Act except in relation to the treatment of Mr Taunoa.
(a) Solitary confinement did not in itself breach Section 9 of the Bill of Rights Act. A form of isolated confinement could lawfully occur in New Zealand subject to restrictions in the PIA and Regulations and the influence of the Bill of Rights Act. Under international instruments, solitary confinement did not always constitute cruel or inhuman treatment or punishment. While prolonged removal from association with others was undesirable, solitary confinement did not in itself breach Article 3 of the European Convention on Human Rights (paras. 1837).
(b) The BMR had been found unlawful in various respects. Of particular concern were the lack of exercise opportunity and the indignity of regular strip-searches. It did not, however, follow that a breach of Section 9, or even of Section 23(5), had occurred. The BMR was not intended to cause suffering to prisoners but to avoid disruption. While the treatment was unacceptable, it did not constitute cruel, degrading or disproportionately severe, that is grossly disproportionate or inhuman, treatment or punishment. Neither was the treatment likely to breach the similarly worded Article 7 of the International Covenant, rather than the positive duty in its Article 10(1). Given that European Court of Human Rights decisions concerned countries similar to New Zealand, they might more appropriately be referenced, although Article 3 played a wider role in the absence of an Article 10(1) or Section 23(5) equivalent in the European Convention on Human Rights (paras. 188215).
(c) Although all appellants had suffered treatment contrary to Section 23(5) of the Bill of Rights Act, only Mr Taunoa had suffered treatment contrary to Section 9. While the most difficult BMR prisoner, his mistreatment over eight months and then two years was disproportionately severe and, in relation to the unlawful routine strip-searching, degrading (paras. 21618).
(6) The appellants' complaint in relation to Section 27(1) of the Bill of Rights Act was subsumed and recognized by the relief granted with respect to the mistreatment complaint (paras. 21929).
(7) Given the seriousness of the breaches, awards of public law damages were appropriate. The awards of Messrs Kidman, Robinson and Taunoa were, however, excessive and had to be reduced.
(a) Authorities from international bodies and other national courts indicated that damages for human...
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