Corporal punishment and torture, cruelty, and inhuman, humiliating or degrading
discipline and treatment are prohibited. The Children, Young Persons and Their
Families (Residential Care) Regulations 1996 prohibits any member of staff of
a residence from using physical force in dealing with a child or young person
unless that member of staff has reasonable grounds for believing that the use
of physical force is reasonably necessary in self-defence or defence of someone
else, to protect the child, to prevent the child damaging property, prevent the
child leaving, to secure the child in secure care, or for carrying out a search.
The staff member must use no more force than is reasonably necessary in the
circumstances, and only applied for as long as necessary to prevent an individual
harming themselves or others.
A staff member at the residence must review daily whether a child should be
kept in secure care. At this review the child is entitled to be present. A child
or youth cannot be confined to their room between 8am and 8pm unless it is
necessary because of illness, injury, extreme emotional disturbance, or in case
of emergency. A child can be confined in their room between 5pm and 8pm to
enforce a sanction under a specific behaviour management programme.
Police cells
New Zealand Police are provided with specific powers to use force under
various enactments. These include powers under the Search and Surveillance
Act 2012, the Policing Act 2008, the Mental Health (Compulsory Assessment
and Treatment) Act 1992, the Misuse of Drugs Act and many others.84 Each
piece of legislation sets out the extent of the powers that the Police have and
the circumstances in which they may be exercised. In addition, the Crimes Act
1961 contains more general legal provisions that permit the police to use force
in certain circumstances. For example, section 39 of the Crimes Act covers the
degree of force that may be used when executing any sentence, warrant or
process or making an arrest. Section 40 covers the force that may be used when
preventing an escape from lawful custody.
Sections 41 and 48 of the Act are very wide and apply to “everyone” including
(but not limited to) police officers. Section 41 of the Act stipulates that everyone
is justified in using such force as may be reasonably necessary in order to prevent
the commission of suicide, or the commission of an offence which would be
likely to cause immediate and serious injury to the person or property of any one,
or in order to prevent any act being done which he or she believes, on reasonable
grounds, would, if committed, amount to suicide or to any such offence. Section
48 of the Act states that “everyone is justified in using, in the defence of himself
84 A full list of enactments authorizing use of force are included in the Police Manual.
85