Corrections Amendment Bill

I am keen to ask the Minister in the chair, the Attorney-General, some questions about the effect of one particular clause in Part 1 of the Corrections Amendment Bill, and that is clause 5, because it is the principal reason for the Labour Opposition’s objection to this legislation. Clause 5 would permit the delegation of powers from the Chief Executive of the Department of Corrections to private sector employees. As far as I am aware, this scheme of private prison administration is the first example in our system of laws where powers of a Public Service chief executive are proposed to be delegated to a person not employed by the Public Service. I would like the Minister to tell the Committee whether or not the full ramifications of this issue have been considered, because, of course, when delegations of power are made from the public sector to the private sector, all the safeguards that have been carefully worked up to apply in the public sector no longer automatically apply.

For example, could the Minister tell the Committee whether or not the Public Service code of conduct will apply to employees in the private sector to whom public powers are delegated; if not, why not? Will the Department of Corrections code of conduct, the Department of Corrections’ internal disciplinary and professional standards procedures, apply to such employees when they are exercising powers delegated from the Chief Executive of the Department of Corrections; if not, why not? Will other statutory safeguards that apply in the public sector apply to such employees? I am aware that, in general terms, many of the wider safeguards are imported by earlier amendments to the corrections legislation as far as the running of private sector prisons is concerned. But when these particular powers are delegated, will, for example, the New Zealand Bill of Rights Act apply to the actions of employees in the private sector when they are exercising public functions—the functions that have hitherto been confined to the public sector?

These are very important questions. The fact that they have to be asked in this way indicates, I think, that there has not been a full thinking through of the desire on the part of the Government to delegate powers out of the public sector and across to the private sector. What are the ramifications in full of that decision, and what exactly will the Committee and then the House be agreeing to if this proposal is passed?

That is just one of the concerns that the Labour Opposition has about this legislation: the ill-thought-through proposal that powers should be delegated out of the public sector and into the private sector without all the controls—professional and otherwise—that do exist and do apply in the public sector environment. I think the Committee would find quite useful an explanation of what is intended to be the entire legal regime that will apply to such powers if this legislation passes.

Of course, the question of whether or not the regime is ill thought through or otherwise is not the only problem here. We have a fundamental opposition to the idea of inmates being incarcerated by entities that are run for profit. This bill will, of course, advance that agenda for ideological reasons and, presumably, also for cost-saving reasons, whereas what we ought to be doing by way of a priority in our corrections system is absolutely focusing on the need to reduce reoffending, to get our prison numbers down, to get our number of offenders down, and to stop offenders from going through the revolving door that our prison system has been for as long as I can remember. I cannot see anything in clause 5 that will advance that cause in any way, and I do hope the Minister of Corrections will take some advice and get to her feet to discuss these points.

The other concerns that I have about Part 1 of the legislation are ones that I spoke to in my second reading speech, which I gave yesterday. Clause 26, relating to strip-searching, is one of those concerns. We heard evidence at the Law and Order Committee that the proposal contained in clause 26 to standardise the manner in which strip-searches are conducted to a very intrusive means of strip-searching is going to cause a number of operational problems. I would like the Minister to indicate to the Committee whether she has actually turned her mind to these potential problems, and whether she thinks there are solutions that can be had to them. The problems include the fact that the proposed standard procedure is a much more intrusive one than one of the procedures that can be applied at the moment. At the moment, if it is proposed to strip-search a prisoner, then there are two types of searches that can occur. One is a relatively routine one that is generally applied if somebody, for example, has been out on work release. The other is when there is reasonable cause to suspect that the prisoner is concealing, for example, contraband. That much more intrusive procedure—involving, as clause 26(3) says, “any instrument or device designed to illuminate or magnify … the mouth, nose, ears, and anal and genital areas;”—will become the standard procedure to be applied in all strip-searching situations.

The select committee heard evidence from the Corrections Association, the professional body and union of most prison officers in New Zealand, that this would lead to disorder, it would be provocative, it would be unduly invasive, and it would not only lead to prisoners who were subjected to the more intrusive procedure as an automatic consequence of any proposal to strip-search them acting up but also pose a risk to our corrections officers themselves. And that just does not even begin to touch on the issues of dignity and privacy that making this particular procedure a standard one starts to invoke. So I do hope that the Committee will hear from the Minister about why it is that this particular proposal has come forward in the bill. The evidence as to its need is questionable.

We heard from Mr Goff in the second reading stage yesterday about the fact that there has been a big decline, for example, in drug use detected in our prisons, and I have been able to confirm that when I have visited prisons. Most of them are uniformly reporting that, when they are undertaking drug testing, the level of drug use appears to be diminishing quite drastically, and that is because of the very good security arrangements that have progressively been put in place in our corrections institutions. People will have seen the work that was done by the previous Government to make it a matter of standard security that every prison is now enclosed by a perimeter fence, and other secure measures are taken to ensure that prisons are drug-free, by and large. I am not saying that there should not be constant vigilance as to these matters; what I am saying is that we do need to have a proper explanation in this Committee stage as to why it is proposed to have this more intrusive procedure made standard, particularly in the face of evidence from the professional association of officers at the coalface that it would not actually make anything safer, and would likely result in a less safe workplace for its members.

That was not the only evidence that was heard in the committee that was critical of the proposal that is contained in the clause. The Office of the Ombudsmen was critical of it. The Ombudsman obviously is the body that, under our international obligations, is charged with ensuring that prison complaints—complaints by inmates—are properly investigated. It is the complaints mechanism for our international obligations concerning the need to protect people from torture and unfair conduct. So when it expresses a concern we should be, I think, on our guard. The New Zealand Law Society and the Salvation Army also joined with the Office of the Ombudsmen in being highly critical of this clause.

So I do hope that we will hear from the Minister on this, and also on the proposal that I spoke to earlier to delegate powers out of the public sector and into the private sector without, I think, a properly and carefully thought through consideration of what the consequences of those proposed delegations are, given that in private sector employment none of the safeguards automatically apply that do in the public sector.

I was hoping that the Minister in the chair, the Minister of Corrections, might take the opportunity to answer some of the relevant questions put to her by my colleague Charles Chauvel, but perhaps I can add to those questions and seek a response from her on them. As she will know, the Opposition worked constructively on this bill, the Corrections Amendment Bill. We did not oppose everything. We got some changes that we needed to have. Maybe the Minister could explain to us, for example, why the original bill wanted to have strip-searching without the approval of the manager of the prison. That seemed a crazy idea to members on both sides of the Law and Order Committee, and we were able to get some changes. But there were some areas, very clearly, where no changes were made, because there were ideological differences.

I should say that the privatisation of prisons is an ideological view. Maintaining prisons within the State sector and having decisions made about the liberty of people and the rights of people who have their liberty and rights properly removed by the courts—we do not believe that that should be subject to a profit motive or a commercial organisation. But I wonder whether the Minister actually read some of the submissions that were made to the select committee by some fairly authoritative groups. We are not talking about people who came in with nutty submissions; we are talking about very thoughtful people with a lot of experience in the prison system who came in with questions and suggestions.

If I look at the delegation of authority to private contractors for security classification or for temporary release from prison, for example, it was argued very strongly by people like the prison officers themselves that it was inappropriate for the chief executive to lose control over private contractors by delegating power to them. Both the Corrections Association and the Public Service Association made that point. JustSpeak, which is a group that focuses very much on how our prisons are run, considered that delegating the chief executive’s powers to contractors breaks the chain of accountability through the chief executive to the Minister in Parliament, and I think that was a fair point, as well.

Another group is the Human Rights Foundation. The Human Rights Foundation receives funding from the Government because it performs an important role, and everybody in this Chamber respects and wants to safeguard the human rights of all New Zealanders. Some New Zealanders who commit serious crimes lose some of their rights, but they do not lose all of their rights. The Human Rights Foundation considered that delegating the chief executive’s power to private providers—in particular, the powers of temporary release and removal and the powers relating to security classification—increased the risk of human rights violation. The foundation was less convinced that a private provider working under a profit motive would uphold those rights, because their motive, of course, is that they are running a business. They see it only as running a business. Therefore, they will cut corners, and if that comes at the expense of rights that are properly retained by detainees, then they will do that.

Some submitters considered that giving certain powers to private prison contractors would create perverse financial incentives. In particular, you have got financial penalties for escapes. In one sense, that is quite good. It sharpens up their act to try to make sure that they are managing the prison properly, albeit the private providers, because they are out to make a profit, have cut the staffing-inmate ratios, they have reduced the conditions of employment of those who are working there, and they have less concern about the security of the public. If it is going to cost them money to do it, they do not want to do it. So the Government decided to counter that natural tendency of bringing the profit motive into prisons. It would penalise private contractors that allowed escapes, for example—or where escapes occurred in that regime—by putting financial disincentives in. But because you have got financial penalties for escapes, the submitters put to us—and I think it was a fair point—that private prisons would be less likely to grant temporary release, even where it might be justified, or to assign low-security classifications where it might be justified.

So you have these important submitters like the Law Society, the Human Rights Foundation, the Corrections Association, and JustSpeak. You have got the Ombudsman, which raised concerns about these sorts of issues.

What I want to know is, really, given the experience of Serco as the private contractor that runs Mt Eden Corrections Facility, and as the private contractor to which the Minister has given the contract for the new Wiri Prison, it is going to make $1 billion over the next 25 years—$1 billion it is going to make from the taxpayer’s money to run prisons—and that money is going to go out of the country and back to the shareholders in the United Kingdom and elsewhere. Well, that is not a very good idea for a start. But the Minister must have looked at the record of Serco, both in New Zealand and overseas. She must have looked at the fact that out of the 34 conduct standards, or performance standards, it failed 19 of those. That must worry the Minister.

This is a brand new prison. You know, it is the easiest prison in the country to run, because it was built to modern standards by the previous Government. I signed that off personally. It is much easier to manage that prison, yet Serco has failed. It has released people who were not meant to be released. It has detained people who were meant to be released. There was at least one escape there. The track record really is pretty poor. You might say “Well, it’s a settling-in period, it’s teething.” But if you look at the record of Serco in Australia in running its immigration detention centres such as Villawood in Sydney, and if you look at its record in running health institutions in the United Kingdom, a common theme comes through of what happens when Serco is put in charge, and that is that it tries to cut its costs by cutting staffing, and when it is understaffed, problems occur. There are breaches of human rights; there are things that should not happen. The security of the public is lessened and the service it is provided with is not as good as it should be.

I wonder whether the Minister has looked at that record, and, if she has looked at that record, why she gave Serco a contract for Wiri Prison, out of which, it boasted to the London Stock Exchange, it will make $30 million a year.

We have seen these submissions to the select committee. Responsible, experienced, articulate people are saying: “There are these problems here. You should not be going further down the track.”, but still the Minister persists in doing that. I think she owes the House an explanation as to why she has continued down this track when there is no evidence at all that the privatisation of prisons is going to improve the quality of the prisons and reduce the cost to the taxpayer. To the contrary, I think it will increase the cost to the taxpayer and the country. That money will go out of the country, and the quality of the service will be less. You cannot compare Mt Eden with some of the ancient prisons we have got, yet Serco did not succeed in meeting its quality performance standards in its first year. As we have seen overseas, it might get better, but then, inevitably, there are problems as the profit motive comes in and it cuts corners, and that comes at a cost to public security and the proper incarceration of people in this country.

So that was the first of the issues, and it is fundamental to this bill. It is set out under clause 5, “Delegation of powers and functions of chief executive”, and I think the Minister needs to answer those questions. She has had advice from her officials. She should be equipped to answer those questions. But I have got to say that, listening carefully to all of the submissions that were given, these submissions were powerful submissions, they made compelling points, and we have not seen any evidence that would justify the ideological viewpoint that somehow the privatisation of prisons is best. Is this just another way of cost cutting? That is what it seems to be to many people in this House, across a range of different political parties.

Privatisation does not deliver what we want. It does not deliver the level of security, it does not deliver the quality of services, it does not maintain the rights that need to be respected, it puts the staff of the prisons at risk because it cuts the staffing, and it puts the security of the public at risk. I do not think that is good enough, and I think there should be an explanation on those points.

I want to come—and I will only just start to touch on this—to clause 26, “Definition of strip search”. Look, I understand that you have got difficult people in prison whom you are dealing with, I understand that you have to have a way of preventing contraband entering prisons, and I understand that there are times when the most intrusive form of strip-searching may be justified. That is recognised under the current law, which says that if the prison manager has reasonable cause to suspect, then he can employ that most intrusive means—that is, the use of illumination, the use of mirrors, around the genital and the anal areas. But the current law also makes another point, which is that where somebody is simply coming back from a work party into the prison and there is no cause to suspect, subjecting people to that form of intrusive strip-searching just is not justified—just is not justified.

We heard, again, a range of submissions that made that point very clearly. The first point, of course, was made by the people who work in the prisons. You know, you would expect them to be pretty hard-headed about their decisions. But the Corrections Association itself acknowledged that this change—to have the most intrusive form of strip-searching on every occasion, including routine occasions—was going to have a detrimental effect on relationships within the prison. The association said to us that it did not support the provision. It was unequivocal about that. It said that it is simply not needed and that it would constitute a serious impingement on the dignity of prisoners, and also on the staff having to conduct those searches, because it is awful for the inmate but it is equally awful for the staff member who has got to conduct a search of that nature.

The association made this point—and, Minister, I want you to focus specifically on this point. It said: “If we’ve got a real cause to suspect that somebody has concealed a drug or other form of contraband internally, what we do is we put them in a dry cell, and nature inevitably takes its course.” If they are concealing something internally, that object will sooner or later be passed by the prisoner in the dry cell, and the prisoner will have no way of concealing it, no way of hiding it. What is more, when we went to Rimutaka Prison—Jacqui Dean was there, and it was a cross-party group; it was a very good visit—in front of my colleagues I asked the manager whether, if a person has actually got something concealed internally, this intrusive form of strip-searching will reveal that object. His answer—and Jacqui and Asenati and the others who were with me will back this up—was: “No, we won’t be able to tell.” So you are bringing in this intrusive form of strip-searching, which the managers and the staff say is not the right way to find concealed objects.

The association pointed out as well that if there is good cause to believe that there is a concealed object, the staff can use scanning, and they can use what is called the BOSS chair, which I think is in one of the Auckland prisons—the Pāremoremo maximum security prison. There are other ways of doing it that are more effective. But the association made this point as well, and this was a point made by the Law Society particularly strongly. It asked, first of all, where the evidence was that we need to increase the intrusiveness of strip-searching because there is a growing problem. It said, actually, that the opposite is occurring.

When I was shadow Minister of Corrections, back in the late 1990s, I was appalled. I remember going to the prison in Linton, actually, in my colleague Iain Lees-Galloway’s electorate. I think the security was a seven-wire fence and open windows. But I was appalled that 36 percent of the inmates, after a long period of a National Government, were testing positive for drugs. That was just not good enough. You know, it was easier to get drugs inside the prison than outside it.

Labour brought in a range of measures—a range of measures—that actually tightened the security in prisons. Both as Minister of Justice, when I supported it, and as Minister of Corrections, when I did it, we managed to get the level of positive testing for drugs down, from 36 percent to 5 percent, by the time the National Party took office in 2009-10. So, actually, we dramatically improved the situation of security in prisons so that people were not able to smuggle objects in. Of course, we closed off the cellphones by jamming the cellphones, so there is not the order and supply that there used to be back in the 1990s under the National Government. These measures are working. [Bell rung] Mr Chairman.

No, I am going to have a change.

Just a couple of points I want to raise perhaps in reply to the seemingly ongoing speeches of the Opposition, and the first one is—

💬 Hon Phil Goff: Well, you didn’t take the call.

—I am taking a call now—the private management of prisons. It is a given that the Labour-Greens will not support and cannot understand or get their heads around how the private management of a prison can be beneficial, but this Government can. That is why this Government has undertaken private management of the prisons. There is nothing about this policy that the Labour-Greens can ever support, so it is probably no wonder that they stand up in this House and say nothing good about private management and the private sector involvement in Mt Eden prison’s management and the construction of Wiri Prison, which can in fact have the impact of bringing fresh ideas into our prison system. It can, in fact, improve public safety.

It can bring—Serco and its management team can bring—innovation into our corrections system and also into our rehabilitation services. Actually, it could be a breath of fresh air, I would suggest, in our corrections services. It could bring benefits that can be shared across the prison network. But, of course, because of their philosophical position, the Labour-Greens and New Zealand First will never entertain the idea that that could be possible. All they can entertain is the idea that it has got to be bad.

So that leads me to the next question: what really matters in our prisons? Is it the fact that the prison service might be contracted out to private contractors? Is that what matters? No, I would suggest that what matters in our corrections service is keeping the public safe and providing good rehabilitation and reintegration services to prisoners in its care. And guess what? That is exactly what our corrections service is doing. In fact, I would also venture to note that under National, in the past 4 years, confidence in the corrections service is 53 percent higher than it was when we came into Government in 2008.

The member who has just resumed his seat, the Hon Phil Goff, mentioned how wonderful the Labour Government was regarding the corrections service. Well, I recall very well the then corrections Minister, Judith Collins, having to come in and face an absolute crisis in corrections with prisoner housing. In fact, it was so bad that the corrections Minister had to bring in container accommodation.

💬 Hon Phil Goff: Not true.

Not true, say Labour members, because they do not actually want to face up to what happened. We saw it for ourselves. The Hon Judith Collins, when she was the corrections Minister, brought in double-stacking containers. I recall in a previous contribution on this bill that Labour said: “Oh, they’re terrible, they’re terrible.” They are not, actually, because when the Law and Order Committee visited Rimutaka Prison and visited that container unit, which is two containers high and shaped in a courtyard shape, the prisoners were perfectly happy with them. In fact, they liked them because they were warm, they were contained, and they felt safe within them. So let us not be having this fallacy and this rewriting of history by Labour that corrections was in a wonderful condition before the National Government came in, because it is demonstrably not true.

I want to also talk about the issue of strip-searching, which, again, seems to have become a clause célèbre for the Labour-Greens—you know, how awful it is that mirrors and lights are being used for strip-searching and that some uniformity has been brought into the process. What I say, and what we were also told in the select committee—but, of course, what the Labour-Greens and New Zealand First do not like to acknowledge—is that what bringing uniformity into the strip-searching procedures does is twofold. What happens is that there is some certainty brought into the process. So if a prisoner comes back in from a court appearance or from some other reason for being outside the wire, they know they are going to get a certain level of strip-searching, no matter what. That not only ratchets down the tension on behalf of the prisoner and also the prison officer but acts as a very powerful deterrent. Who are we talking about here? We are talking about prisoners. These are people who have been convicted of crimes and sent to prison. There is something very good, in my view, about sending a deterrent to those people.

The second aspect I want to just touch on is the use of mirrors and lights, which has taken on the spectre of being somehow more intrusive. I would put it to those members across the House that the use of a mirror and a light on a fitting to look at the things that need to be looked at by prison officers has got to be a whole lot less intrusive than a prison officer actually having to bend down and take a look. I have left you with enough pictures in your mind to be going on with, so that is the end of my contribution for the moment.

Thank you for the opportunity to speak to this bill, the Corrections Amendment Bill. I think it is clause 26 that pertains to the change in regime for strip-searches. The chair of the Law and Order Committee has just mentioned that the change in regime to the more intrusive search becoming the standard search would ratchet down—I think the phrase used was—the tension between the inmates and the prison officers. I wanted to just have a look at the submission made by the Corrections Association to the Law and Order Committee, because you would think the Government would try to listen to those people who go to work in our prisons every day and have to deal with the danger of dealing with these highly volatile inmates. Part of the intention of this bill is to make life in prisons a bit more efficient for the management of those prisons and safer for the staff, but the Corrections Association in its submission states completely the opposite of what Jacqui Dean has purported to be the truth. In its submission to our Law and Order Committee, it made it very clear that “Strip searches are carried out every day in prisons across New Zealand. To include such an invasive procedure like this, CANZ believes it will result in an increase in staff assaults.”

So here we have the chair of the Law and Order Committee praising this move to go to the more invasive strip-searches in our prisons, going from two regimes to the one—using the lights and mirrors that are used in the regime that they want to make standard—and saying that it will make our prisons a safer place for our corrections officers to work in, when the people who are doing this every day disagree with what the chair of the Law and Order Committee has just said. That is a question I certainly want to put to the Minister in the chair, the Minister of Corrections. We have got submissions from people who are working at the coalface, in these prisons—day to day they have to do these searches, dangerous searches, which I am pretty sure every member of this Parliament would not want to do every day—saying to us that if we make them do this every day, we are going to increase the danger for them. I will read this again: “To include such an invasive procedure like this, CANZ believes it will result in an increase in staff assaults.” I think it is a responsibility of this House and this Government to make those prisons as safe a place as they can possibly be for those people, those corrections officers, who have to carry out this work.

That leads me to really what is the main reason the Labour Party opposes this bill—I think it is contained in clause 5—and that is the delegation of powers from the Chief Executive of the Department of Corrections to those staff who work in privately run prisons. We have one in Auckland at the moment and we know that one is planned by the Government to go at Wiri. The kinds of powers that we are talking about being delegated to those staff who work in private prisons are around things like the security classification of inmates and the temporary release of prisoners in those private prisons. We do have an ideological difference of opinion with the Government around who should be operating our prisons. We do not believe that it is the role of a profit-motivated company to be imprisoning people and to have responsibility over them. On this side of the House, we believe that that is the role of the Government. We strongly oppose privatising prisons, which is why we strongly oppose clause 5 in this bill. We believe that prison management, which involves the taking away of people’s freedom, locking them up, and making sure that we can rehabilitate them to the best of the State’s ability, is a core role of Government, just like our defence forces and our police. It is in the best interests of our community, and we believe that the Government has a moral and fiscal obligation to take the responsibility of making sure that it is the State that looks after corrections and imprisoning people.

We are not alone in that. There were a number of submissions to the Law and Order Committee around that. One was from Rethinking Crime and Punishment, and I will read it again, for the benefit of the Committee. It said that “The incarceration of citizens, their treatment within prison, and rehabilitation throughout a prison sentence is, in our view, a primary function of the Government.”, and we 100 percent agree with that. I think one of the concerns that we certainly share with Rethinking Crime and Punishment is its concern that when we give powers to private contractors in this area, “… the Government is opening the door for misuse of power, and corruption as the checks and balances that apply to government departments may not be passed through to private entities.”, and it talks about examples of behaviour like this being evidenced in private corporations in the United States. Jacqui Dean in her speech also said that it is absolutely a given that we will oppose this bill on that ground, and she is 100 percent right. We do not believe it is the place of private companies, which, at the end of the day, have a profit motivation—the bottom line is the bottom line—to be making profits out of people whom we, as a State, judge and say should be locked up. In one perverse view, it would be in those companies’ interests to keep them in there, because those prisons will—as I think Charles Chauvel said in his second reading speech—end up becoming a sausage factory. They want inmates to be in their prisons, because without inmates they do not have any business.

I think I have said enough around the private management of prisons, and I did want to move on to strip-searching again, because I think that some of the arguments put forward by the chair of the Law and Order Committee just have not stacked up in terms of the Government’s support for changing the regime from the two searches to the one search. Within the select committee there was a fair amount of opposition to the change of regime for the strip-searches, as well, and, funnily enough, the Ombudsmen—who are looking very closely at the Government’s behaviour at the moment—expressed a strong opinion in their submission to the committee. Again, reading from their submission to the committee, they expressed “strong concerns about the amendment … of the Corrections Act, which diminishes the safeguards against prisoners being strip searched unnecessarily or inappropriately, and also removes the less intrusive type of strip search. We have previously stated that the existing requirements for strip searches provide a very good balance between the rights of the Department to manage its prisoners and the rights of the prisoners to not be subjected to unreasonable searches. In our view they do not need to be changed.”

So if the Minister in the chair does take a call I would like her to give us her opinion as to why this Government is ignoring the calls of the Office of the Ombudsman. It is ignoring the calls of the Corrections Association, which represents, I think, a majority of those corrections officers who work day to day in the situations that we are discussing in this Parliament tonight. That change in regime for strip-searches, I believe, is something of an attempt by the Government to look tough against prisoners, and we have heard from Jacqui Dean that she quite likes the look of people getting locked up. I do not necessarily think that it is a good look for the Government, so I want to hear from the Minister in the chair why the Government is ignoring that call from organisations like the Office of the Ombudsmen and people like the officers who are at the front line, why it is making that move, which corrections officers think will put them in danger.

I want to also back up what the Hon Phil Goff said about our visit to Rimutaka Prison. It was a very useful visit by the Law and Order Committee, and I thank the Minister for letting us do that, because it did give us the opportunity to go and speak face to face with those corrections officers and ask them the question. I agree with what Phil Goff said, because I too asked those officers whether they think it would make a material difference to them if they had the ability to have just one search—to have the more intrusive search—and they all said no. They echoed what was in that Corrections Association submission, which was that in the end they thought that it was going to do more good than harm—more good than harm. So I hope the Minister in the chair does take a call and explain to all those corrections officers who have expressed their opinion in their submission as to why she is continuing to change that strip-search regime in the face of the opinions of people at the front line and people who have had a look at the policy ramifications of this, who have said that this is not a good thing to do.

We are opposing this bill on those two grounds and another one, which we will probably take up some time on later, and that is around a bit of a botch-up on the Government’s behalf, and poor old Anne Tolley has to clean it up.

I want to take just a few minutes to answer a couple of the questions that have been posed and to talk to a couple of points. First of all, I understand that Charles Chauvel, prior to my coming into the Chamber, asked the question around Public Service requirements applying to private contractors—in this instance, Serco—and whether will they be required. Well, the answer is, of course, yes, and I refer members to section 199 of the Corrections Act. I have to state the obvious, really, that prisoners are still covered by the New Zealand Bill of Rights Act. Actually, the State Sector Act still applies to our staff—so things around equal employment. All of those still apply. And, of course, there is the Ombudsman. We have this optional protocol, the Optional Protocol to the Convention against Torture, where the Ombudsman is able to go in and have a look at anything in any prison at any time, and that will still apply, whether it is a privately contracted prison or not.

Finally, and I think perhaps one of the most important features, the Minister of Corrections is still accountable to this House for the operations. As Minister, I still hold the Chief Executive of the Department of Corrections accountable for the workings of those prisons. So he may well delegate powers out to our private provider, but I still hold him accountable for the results. Therefore, as Minister, I am able to be held accountable by this House for the operations of that prison. I think that is a very important part of the private contracting arrangements.

I would make the point that there have been some outrageous statements made in this Chamber tonight, actually, about Serco. Fortunately, none of them would ever be made outside the House, I think, because those members would be up before court. But, in fact, if you look at the operations of Serco in corrections, as I have, both in Australia and in the UK, some of the top performing prisons for rehabilitation have been run by Serco. Some of the top performing prisons that are getting the best results for their prisoners in rehabilitation have been run by Serco. Yes, it had a really bad year last year, and I held the Department of Corrections’ feet to the fire to make sure that we got that prison operating well. I am very pleased to inform the Committee that, in fact, it is meeting about 95 percent of the performance measures that we hold it to account for. I expect that that will continue. That is my expectation as Minister.

I would also say to all members in the Chamber, but particularly to the Opposition members—who I am sure will be very interested in it—that we are working very hard to develop some tables of performance that will enable us to compare the performance of all our prisons across New Zealand, and that will be made public. That is not an easy thing to do, because each prison has different characteristics and deals with different types of prisoners. The Mt Eden prison—contrary to what was said in this Chamber tonight—even though it might have been newly designed, is not an easy prison to run, simply because of the large number of remand prisoners, who are largely short-term prisoners and who are in and out. It is not an easy prison to run, and I think that Serco has finally started to do a pretty good job there.

The other thing about getting private contractors or different people to come in and run any operation is that it brings in a wealth of new ideas. Some of them are effective and some of them are not, but, actually, you have got an opportunity to have a look at how some things can be done differently. And I have to say that I would say to any member in this House who is interested to go and have a look at Mt Eden prison and what it is doing around those prisoners who are at risk of self-harm. It is trialling something that is quite different from the way we have traditionally dealt with those people who are, you know, extremely vulnerable people. And to date—touch wood—it is having really good success. We are learning from its methods and what it is doing, and that is one of the major benefits of having a different way of operating available to us and to this Government.

Of course, if you look at the new Wiri Prison contract, that is a contract that is not about a sausage factory. This is a cutting-edge contract that is entirely results focused. That operator cannot have a sausage-type factory. It is not in its interest to keep prisoners there. It will get rewards if it successfully rehabilitates and reintegrates prisoners back into our communities. The role of the corrections service, certainly, is to keep its communities safe, and the best way that it can do that is to make sure that that turnover, that churn, of prisoners going back out into the community and committing crimes again for all the reasons that we in this Chamber know—drug and alcohol addiction, life with a background of violence being the norm, poor educational qualifications, no skills—is dealt with. Fifty percent of our prisoners come in not from employment. Many of them have never had a job in their lives. We have an obligation to deal with all of those things, and the way we can keep our communities safe is to make sure that when prisoners go out they have the best opportunity to get gainful employment, look after their families, and lead a sensible and successful life that does not include prison.

I am open to any ideas, and I have to say to the Opposition and to Mr Chauvel that consultation goes both ways. I opened my door and talked to you and made you the offer to come and talk to me about things like strip-searching. I said: “Come and tell me your ideas. I am open to those ideas.” Not a telephone call—

💬 Charles Chauvel: When was that?

You sat in my office—

💬 Hon Gerry Brownlee: No, you can’t request it, Charles.

Yes. You sat in my office. Consultation is about communication both ways. It is not just going out and putting your ideas out and saying: “What do you think of that?”. There has to be a response, and I got none. So it is all very well to come into the Chamber and make speeches after the bill has been right through the select committee consideration, but, actually, the opportunity was given and not taken.

Those are the points I wanted to make about the questions that have been raised. First of all, Public Service requirements will apply to Serco and do apply, and the Minister is accountable for its performance. I think that is the ultimate—the ultimate—response for this House to take advantage of.

It has been interesting listening to the debate thus far, and I would certainly speak in support of many of the points that have been made by our Labour colleagues about the deficiencies in this bill, the Corrections Amendment Bill, and the overall direction in which it is going. The chair of our Law and Order Committee, and I could say a very good chair, too, made the point that, in line with her expectation—and it is true—the Greens have a principled objection to the notion of private ownership and management of prisons. We just do not see it as an appropriate thing for the State to delegate that responsibility. The State has a unique right to legally deprive people of their liberty. Our principled position is that we think the State ought to fulfil its obligation by performing those custodial functions.

Jacqui Dean also made the comment that she thought the Greens and Labour could not get their heads around the fact that private management of prisons could be beneficial, and in that she is actually quite wrong. We I think would agree that private management can be beneficial. The key question is to whom does the benefit accrue. It is very clear that the benefit accrues almost solely to the private operators, to the private contractors. We see no benefit to the taxpayer. We see no benefit in terms of enhanced public safety. We certainly see very little benefit overall to the people working in the prison system and, indeed, the inmates who are contained within it. There is simply no evidence internationally. The evidence is that, on balance, we see backward steps. We see more cost over time. Serco’s performance—and I will happily say this outside, because it is based on reported evidence—has been suboptimal in many ways, not only in prisons, in corrections, but also in the health service. In the National Health Service in the UK, for example, there was some scandalous performance there.

I reject the argument that we must privatise our prisons, which this bill seeks to embed further, simply to get some fresh thinking, some innovative ideas. We do have a corrections department, and I say this in the full awareness that there is some progressive and some good thinking within that department, not least of all from the chief executive himself, but, overall, I think it is fair to say by way of observation that the culture of that organisation is very, very inward-looking, it is very defensive, and it is not actually conducive to generating or accepting new ideas. That has to change, and it can change over time, but it does not change simply by surrendering, by saying that the public sector cannot be innovative and cannot create a good and positive prison environment that actually gives us good outcomes.

I would suggest to the Minister of Corrections that rather than import ownership, rather than import private managers of our prisons, we temporarily export some of the best and brightest in our public sector, send some of our senior officers on sabbaticals, and give them time out from their day-to-day duties to go overseas, to be exposed to the good ideas, to engage in the debate, and to bring back those ideas. This works in education, it works in just about every imaginable field, and it can and should work in corrections. We do not have to import private management. We can send our own people abroad to observe what works and what does not work, and to bring things back, trial them, and look for good solutions. The Minister is right in that the corrections system has been moribund for a very long time. As I said, it is inward-looking, it is very defensive, and we need to do better, and I believe we can do better. I do acknowledge that some small steps have been made towards that, but I absolutely reject the proposition that it is necessary to hand over the business to a private operator in order to achieve those better outcomes.

I would like to say a few things about the clause concerning medical officers, clause 8 of this bill. There was some doubt under the original drafting that there would be a minimum of one medical officer in each prison. The redrafted version, we are told, assures us that there must be at least one medical officer in each prison. The language—“a sufficient number of medical officers”—is a small improvement, but it is something I think we will continue to monitor. We know that prisoners routinely have less good health than the general population. There is strong evidence that prisoners’ health can go backwards, can get worse rather than better, while they are in the care of the Department of Corrections. We hear anecdotally of instances, which I hope are not widespread, where access to medical help, medical service, is treated as a reward, as a privilege, rather than as an absolute right. These things we know are occurring and ought not to be.

I do think that the argument that the Ombudsman presented in the very substantive and comprehensive assessment—the report—that the Ombudsman gave us last year, advocating very strongly that the Department of Corrections, the custodial department, ought not to have charge of the delivery of health services, is one we absolutely agree with. We think that the mind-set, the culture, of a custodial organisation is always going to compromise the open and appropriate delivery of health services.

It is to the benefit not only of inmates that they get a good health service; it is to the benefit of all of us. Ninety-nine percent of inmates will ultimately be released back into society. If they remain physically unwell—and we routinely hear of people coming from prison sentences, often quite long sentences, with very poor dental health, with chronic, untreated respiratory problems, and with all sorts of illness that ought to have been, and could have been, dealt with better while they were serving their sentences—and come back into communities with ill health, poor physical as well as, often, mental health, untreated addictions and the like, it is not helpful for any of us.

It is a shame, as I said last night in the earlier debate. The provisions in the bill we are debating tonight could have been an opportunity to fundamentally change the nature of the health service delivery in our prisons. It is unfortunate, I think, that there has been some movement around the margins, some changes implemented but no substantive change. We do need structural changes in the corrections system. What we have now is not performing well. We are significantly below par in terms of our reoffending, in terms of recidivism, in terms of failure to reintegrate people back into society post release. We can do better. We need to do better. We spent $1.4 billion last year, and that figure has been climbing year by year by year. We have to do better. It is our responsibility to the taxpayers and, indeed, to the people who are in the justice pipeline.

I would like to mention the business of denying prisoners their minimum entitlement to exercise. Again, the select committee did some good work, and we did have a win there. The original drafting of the bill meant that prisoners could be denied their minimum entitlement of 1 hour on an open-ended basis—it could go on and on. The new draft of the bill limits it to 2 consecutive days. We still think that is too much, primarily because the criteria include a reference to it not being practicable to provide the opportunity for a prisoner to get an hour’s exercise on a given day. In other words, budgetary and resource constraints can deny a prisoner that minimum right.

One hour out of 24—that is their entitlement and it can be denied them for 48 hours. What would it do for any of us to be confined in very small rooms, in the back of a prison van, in a holding cell at a court, and then to go back to a cell in a prison—48 hours at a stretch without seeing daylight or getting fresh air? Even though, as I dare suppose, most of us are well-balanced individuals, I think we would find ourselves seriously stressed by that. For an inmate who is already suffering stress, including people not yet proven to be guilty of anything—because this applies to remand people as well—I think it is unacceptable that we should deny that very, very minimal 1-hour per day entitlement to some exercise. I think that is simply not good enough. We should not be reducing what is already a very minimal entitlement. It is simply inhumane to keep people confined to that extent for 48-hour periods, and then perhaps they have a day with 1 hour of exercise, and then back to court they go for another couple of days, or they are transferred to another prison—whatever the situation might be.

There has been talk already about, and reference made to, the question of strip-searches, and the extent to which the more intrusive form of strip-search will become the norm, rather than our allowing for the less intrusive version. Often when one speaks in any detail on this, people wrinkle their noses. It is not a pleasant business. The point has been made—it has been articulated already—that it is not desirable for inmates or for staff.

I rise on behalf of New Zealand First to speak to the Corrections Amendment Bill. I must reiterate in the Committee today that New Zealand First will always put the safety of our community as a priority, as well as supporting law enforcement officers and staff to carry out their roles effectively and efficiently.

Last night during this bill’s second reading I emphasised that this bill is one of the few bills being introduced that will provide improvement to the way our prisons operate and are managed. It is important that we support the removal of any obstacles that would prevent managing prisoners in a manner that is safe. It is also important that we support the removal of any obstacles that would prevent managing prisoners in a manner that is secure and humane. It is also important that we support the removal of any obstacles that would prevent managing prisoners in a manner that is effective and efficient.

Some of these points would be addressed in proposed changes to delegations as reflected in clauses 14, 16, 17, 18, and possibly 42. However, New Zealand First will continue to strongly oppose the use of private firms and contractors for the purpose of operating prisons and prison services as per clause 5. I cannot make it clear enough that the incarceration of prisoners should and must remain the sole preserve of the State. Serco has been unable to form and build better relationships with the local communities in order to assist with the delivery of rehabilitative initiatives in order to reduce reoffending. Furthermore, Serco’s performance has been way below standard, and progress has been extremely slow, if at all.

I would like to come back to the comments made by the Minister of Corrections. You said that Serco was performing well, and I would like to ask the Minister why, then, the prisoners are being locked up for longer hours in the Mt Eden Corrections Facility and whether it is the view of the Department of Corrections that Serco’s rehabilitation initiative is to send prisoners to the gym and then record those hours as rehabilitation hours. I do agree that educational opportunities should be made available for prisoners, but make sure that they are the right educational programmes. Rehabilitation is a good thing, but they must be relevant and effective initiatives by the right providers. I also would like to pick up on the comments that David Clendon has made that staff on the floor, not the staff in the national office or the ivory towers, would do this country a lot of good if they were the ones being sent overseas to get more learning and be exposed to new ideas.

I would also like to pick up the comments made by Jacqui Dean on container units. I think Jacqui Dean is misinformed, because those container units became outrageously expensive. They cost a lot more, which crushed the National Government’s cost-saving plan. I do wonder whom or where she is getting her information from.

I want to now come back to the medical officer allocation. The fact that this bill aims to fix the current loopholes within the Corrections Act means it is a step in the right direction. The amendment to section 20(1), in clause 8, helps address medical treatment of prisoners in prisons, but I want to say to David Clendon that prisoners are probably getting the most effective service in the way of health care. I have to say that I have been there and I have worked in that environment, and they have got the best service available to them in the way of dental care and health care, compared with those who are outside the prison walls.

This bill will also ensure accountability in terms of the protection and safety of our communities, and reduces the delays as well as reducing additional requirements for escort staff when transporting prisoners to and from the hospitals. This is our taxpayers’ money, so I am standing up for what is in the best interests of our country, as well. This amendment bill must incorporate safety mechanisms that will honour those dedicated men and women who provide security and public safety for our country.

It has been said that enforcing the rule of law and maintaining public order are inseparable and that they form the bedrock of a civilised society and a sound liberal democracy. New clause 31A, which allows authorised persons such as non-custodial staff to read prisoners’ mail, will contribute to operational efficiency within the prison environment, and I think it is a wonderful idea.

I want to now come back to the response we put forward to the Law and Order Committee. We do believe that the strip-searching of prisoners can be enhanced by using a different approach from what has been incorporated into the Corrections Amendment Bill.

The other thing I want to address is property claims. New Zealand First supports clear processes in the area of lost and stolen property of prisoners. Savings can be made in this area, especially in the processing of such claims. Clear guidelines that will transfer the liability of prisoners must be laid down in order to clearly determine accountability. This is an area that used to frustrate me when I was working in that environment.

I still believe, Minister, that if you would consider reinstating the provision in the old penal institution legislation of 1954, I think this would really do corrections a lot of good. This provision would give power to a visiting justice or adjudicator of corrections to impose certain punishments and penalties, which include a loss of remission on any sentence. I think it is relevant that that provision should be reinstated.

I would also like to emphasise cultural perspectives within the prison environment. Cultural perspectives should also be incorporated into staff training programmes in order for staff to understand and deal efficiently with major ethnic populations in our prisons. That would contribute to the effective delivery of rehabilitation programmes within the prison environment.

So New Zealand First recognises that this bill has some merit, although it does not address all the issues that we have identified. But, overall, the bill will improve a number of areas within the environment of corrections operations.

I would now like to touch on the smoking ban. And thank you, Minister—I know that you have invited me to come and meet with you, and you might not like the response I am going to give you now, but it is an important—

The CHAIRPERSON (Eric Roy): Order! I think the member is getting into Part 3.

Part 3, yes.

The CHAIRPERSON (Eric Roy): Well, and we are on Part 1, so—

OK, so I will talk about it afterwards.

The CHAIRPERSON (Eric Roy): Yes. Righto.

I move, That the question be now put.

Thank you very much—

💬 Charles Chauvel: I raise a point of order, Mr Chairperson. It is really just a question of clarification. I read Supplementary Order Paper 171 as proposing amendments to clauses 2, 4, and 36. So I am not sure that there is a Part 3 to the bill—

The CHAIRPERSON (Eric Roy): There is a new Part 3.

💬 Charles Chauvel: I am sorry. Well, I missed that. That is the clarification I was seeking. Thank you.

The CHAIRPERSON (Eric Roy): Very good. Iain Lees-Galloway has the call.

I would like to pick up on some of the points raised by David Clendon, because the contributions from the Minister of Corrections and from Jacqui Dean have suggested that the Opposition’s opposition to the use of private firms in the incarceration of New Zealand citizens is a purely ideological one. But I think the Minister has failed to actually explain what it is about the privatisation of prisons that will improve the service that the Department of Corrections and Serco provide New Zealanders in terms of the rehabilitation of prisoners and the safe incarceration of prisoners.

The Minister listed a few things that she thinks are wrong with the current system that she thinks the corrections department could be doing better, but then simply says the answer to that is to hand over that responsibility, to abdicate that responsibility to the private sector. Well, that is not governing. That is not leading. That is the very worst example of taking a hands-off approach to leading our nation. The Minister has said she is not prepared to roll up her sleeves to work with the corrections department to try to improve its culture, to try to improve the way the public sector delivers corrections services. She is not energetic enough to do that. She is not enthusiastic enough to do that. She simply wants to step back, take the hands-off approach, and hand that responsibility to bring fresh thinking and new ideas to corrections to the private sector. That is not good enough.

That is not a good enough reason for New Zealand to give up on the fundamental principle that the incarceration of our citizens should be the sole preserve of an elected Government. That is one of the fundamental principles of living in the liberal democracy that we do in New Zealand—that we take people’s freedom seriously and we take the removal of freedom seriously. That is something that only an elected Government that represents the people and that has a mandate from the people should be involved in. That should not be handed over to a private firm listed on the London Stock Exchange. It is that fact that actually gets to the heart of what the Government is attempting to achieve here, because we know that the National Party is the party of big foreign capital.

Big, foreign multinational companies like Serco are lobbying Governments around the world to get themselves a slice of the public purse by getting involved not only in building prisons but also in the health sector and the defence sector, and, interestingly, in building detention centres for asylum seekers. Serco has been lobbying the Canadian Government very hard to adopt a policy of mass detention of asylum seekers, so that Serco can perhaps acquire a few contracts and build those detention centres. And now here we have in New Zealand our Prime Minister suggesting that we need to have a policy of mass detention of asylum seekers and working with the Australians, who, coincidentally, also contract Serco to build and operate their detention centres for asylum seekers. What an extraordinary coincidence that Serco should pop up all over the world where these policies have been adopted, and now we know that Serco is active in New Zealand and our Prime Minister wants to adopt that policy of building mass detention centres for asylum seekers, who have never even made it to New Zealand and are in all likelihood never going to make it to New Zealand. So he has to make up stories about how the Australians are going to shepherd asylum seekers across the Tasman. He has to make up stories about boats that he has heard of that have left Indonesia and may or may not make it down to New Zealand. Why? Because he wants to appease Serco, the company—

💬 Louise Upston: Are you talking about Part 1?

—the only people who will benefit from this bill, Ms Upston. They are the only people who will benefit from Part 1 of the Corrections Amendment Bill.

I raise a point of order, Mr Chairperson. I took a point of order when Mr Roy was in the Chair because he asked Asenati Lole-Taylor to stop speaking when she started to address the issue of the Minister’s Supplementary Order Paper 171. I believe that that was an error on the former Chairman’s part. I think he acknowledged that, probably to you and to the Minister, before he left.

The fact is that the Minister’s Supplementary Order Paper substantially amends Part 1. He did mention the new Part 3, but that is a very, very small part dealing with consequential amendments to the Smoke-free Environments Act. So, Mr Chairperson, could you just clarify that my understanding is correct and that it is in order to refer to the Minister’s Supplementary Order Paper? Because that is what I want to do and I think others will want to do that, as well.

Yes, that is the understanding.

I want to deal with Supplementary Order Paper 171. Before I do, though, I want to address two comments that the Minister in the chair, the Minister of Corrections, made when she was on her feet. First of all, I asked early on in the Committee stage whether certain safeguards that apply to public sector employment—certain ethical requirements that apply to public servants—would apply to private sector employees to whom public powers were delegated under the clause that is contemplating that delegation in Part 1.

The Minister got up and she reassured us about the contents of section 199 of the Corrections Act. She did not mention two particular documents that I wanted her to reassure the Committee about. I accept that she was not physically present when I asked these questions, but none the less she rose to the occasion and purported to answer my questions, and I do want her to consider this issue.

There are two fundamentally important ethical requirements that apply to public servants. One is the Public Service Code of Conduct promulgated by the State Services Commissioner, made under the State Sector Act 1988. The other is the departmental code of conduct applying to all employees of the Department of Corrections. These are the fundamental documents that govern the day-to-day ethical behaviour of corrections officers.

I cannot see where the requirement to honour either of those documents is put upon private sector employees who exercise delegated authority from the chief executive. So it is all very well for the Minister to point to section 199 of the principal Act, which we can all read, and have read. We all know that the New Zealand Bill of Rights Act applies. We all know that the Ombudsmen Act applies.

What about the Public Service Code of Conduct, Minister, and what about the departmental code of conduct? That is the issue that I was fundamentally addressing to you, and I would like you to get your officials to tell you whether or not those documents apply. If they do not we have a problem. We have a fundamental problem, because the employees of Serco and the employees of other private entities that might receive delegations of public authority from the Chief Executive of the Department of Corrections will not have the same fundamental ethical requirements that apply to public servants. Because of the reasons that were articulated by Iain Lees-Galloway, who has just resumed his seat, and because this is the fundamental business of administering our prisons, dealing with people who have been deprived of their liberty by the State, those ethical obligations must apply. If they do not, this is an obscene exercise, and it should not proceed.

The other point I want to make before I address Supplementary Order Paper 171 directly is about a comment that the Minister made before she resumed her seat. She said she invited me to give her my ideas on the Department of Corrections and how we might do things better. The fact is this is what the Minister did, and she should know this because I acknowledged her consultation over Supplementary Order Paper 171 in my speech yesterday in the second reading. She did tell me that she had a Supplementary Order Paper she wanted to propose. She consulted me about it, and she showed me the Supplementary Order Paper in draft. I acknowledge that that was the proper thing for her to do.

She also said to me in passing—when I said to her we would have difficulty supporting the legislation generally because of the privatisation provision and because of the strip-searching provisions, and that the Māori Party was not going to be supporting the strip-searching provisions either—that if we had any ideas on strip-searching to make that particular part of the Corrections Amendment Bill better I was welcome to give them to her. I think our views are known: there should not be the standardisation in favour of the drastic procedure. It has been said by a number of speakers in the Chamber already. I do not think that I have been invited by the Minister to be forthcoming with ideas above and beyond that. I certainly, if I was so invited, would be inundating her with suggestions.

Back to Supplementary Order Paper 171. Here is the problem. A number of years ago Judith Collins, when she was the Minister of Corrections, decided that prisons would be smoke-free. We thought that was a good idea, and it has been a good idea in practice, but it was implemented in the wrong way. The previous Minister thought that she could get away with instructing every manager in every prison to simultaneously declare tobacco to be a contraband good, and then to put in place prison-by-prison rules as to disciplining prisoners who used tobacco.

We said at the time that was brave. In fact, it was worse than brave, it was reckless. We have seen this sort of reckless behaviour from Judith Collins in the discharge of the justice portfolio time and time again. What should have happened is that legislation should have come to this House. It should have gone to a select committee for public submissions. It should have gone through the checks and balances, and then it could have been made law. There would have been no doubt about the legality of the smoking ban.

As it is, a well-known activist inmate at Auckland Prison (Maximum Security Division) went to the High Court and, earlier this year, got a decision from the High Court confirming that the manner in which Judith Collins went off half-cocked in implementing this ban was legally wrong. Despite that, the department has maintained the ban—on what legal authority basis I do not know, and I do not know on what basis the taxpayers’ interests will be protected here, given the liability that has probably accrued to the Crown since. But, leaving that issue aside, the Minister has brought to the Committee Supplementary Order Paper 171, which will confirm the basis of the ban, and will also, interestingly, by way of section 179AA(2), in new clause 40AA, extinguish any proceedings brought against the Crown questioning the “validity of any rules or regulations”, which is referred to in the particular Supplementary Order Paper.

Minister, you showed me this Supplementary Order Paper, as you undertook to do. I have read it and I want to give you my response. I think it is the wrong way to go, and I think that for the following reason: what is the meaning of “questioning the validity of any rules or regulations”—any proceeding questioning the validity of any rules or regulations? Does that apply to a Regulations Review Committee complaint? I do not think so. So immediately we have got one hole in the Supplementary Order Paper, one means by which anyone could mount an attack on these rules and regulations independently of court proceedings, and probably someone will do so given the litigiousness that is rife in the sector.

But what about a proceeding for Baigent damages, or a judicial review brought purely under the New Zealand Bill of Rights Act, for example, for the breach of section 21, which prevents unreasonable search and seizure? There is no doubt in my mind that if this Supplementary Order Paper passes in its current form the seizure of, or the searching for, tobacco contraband will be lawful, but will it be reasonable? That question is not answered by the Supplementary Order Paper. So there is another type of court proceeding that might still be open to inmates or others by which to question the ban because of the wording of the Supplementary Order Paper.

What about a proceeding under section 27(3) of the New Zealand Bill of Rights Act, which, actually, in and of itself confers and affirms a right to sue the Crown in civil proceedings? That would not necessarily be a proceeding in and of itself to question the validity of any rules or regulations that are confirmed by this Supplementary Order Paper 171. But it might still be a way by which somebody could attack the legality of the ban on tobacco products being present in prisons.

Minister, the other problem I think you have is that we just do not know whether there are any proceedings extant at the moment. You might know. The department might know. The Crown Law Office might know. You might like to share that information with the Committee, because if there are proceedings, then the Committee should know how many there are, what the potential liability to the Crown is as a result of those proceedings, and whether or not by passing this Supplementary Order Paper in its present form we are simply in the process of selectively extinguishing some legal proceedings but not others.

I do not think the Committee or the House should be put into that position in a state of ignorance. They should be seized of the facts so that when legislating we know exactly what context we are dealing with. We just do not know that. We do not have that information. We simply have this Supplementary Order Paper, which would, as I say, prevent proceedings being brought against the Crown in order to question the validity of any rules or regulations referred to. I think that is a very important point, and I do hope that the Minister will speak to this issue, because, as I say, although we are supportive of the ban, the way in which it has been achieved is poor.

I move, That the question be now put.

I would like to pick up where my colleague Charles Chauvel left off regarding Supplementary Order Paper 171 in the name of Anne Tolley, which amends the Corrections Amendment Bill. The history to this is that the Minister of Corrections at the time, Judith Collins, announced that she was going implement a ban on smoking tobacco in prisons. Despite warnings from the Opposition and from other groups that should she wish to effect such a ban, it ought best be done with legislation, Judith Collins knew best. Judith Collins displayed her usual level of arrogance and carried on and implemented the ban. Interestingly, because she did not change the legislation, she had no power to implement a ban. Miraculously, all the prison managers across New Zealand simultaneously declared a ban in their own prisons. What the High Court determined was that it was those prison managers who acted outside of the law—that the Department of Corrections acted illegally at the behest of the Minister of Corrections.

I stated in the debate last night that Judith Collins acted illegally. I actually think it is worse than that. Judith Collins required public sector employees to act illegally, and that is what this Supplementary Order Paper 171, which Anne Tolley has brought to the House, is attempting to clean up—that appalling mess that Judith Collins has created through her own gung-ho, Judith-knows-best actions, whereby she has required public servants to act outside of the law. Of course, all that it has done is create a situation where a particularly notorious prisoner has been able to bring a case against the Government. That has subjected the New Zealand taxpayer to the possibility of having to pay out to this gentleman who has brought this case—

💬 Hon Phil Goff: He ain’t no gentleman.

Well, my colleagues say he is no gentleman. I use that term in the broadest possible sense. This all comes back to the way that Judith Collins and her National Party colleagues approach governing in New Zealand, which is that they seem to forget that they are elected, that we have a democracy, that we have a democratic process, and that we believe in the rule of law. Judith Collins, in particular, just acts as though she has the right to be a dictator in New Zealand and that she can just carry on and do whatever she likes, whether the law allows her to or not. Of course, that is not the case, and when she acts in that way, then a retrospective amendment like this has to be brought to the House.

Even just looking at the way this Supplementary Order Paper operates—it actually seeks to amend part of the original Corrections Act. It amends clause 4 of the Corrections Amendment Bill. It amends the section that refers to the substances that are specifically banned in prisons, and drugs and alcohol are specifically mentioned. Knowing that the only way to implement a ban on those substances was through legislation, Judith Collins should have been acutely aware of the fact that the only way she could have implemented the ban that she wanted was through legislation. It was absolutely obvious to the Minister. It is obvious through the mechanism that is being used in this Supplementary Order Paper that legislation was always required.

💬 Hon Clayton Cosgrove: Is she the justice Minister?

I believe she is the Minister of Justice.

💬 Hon Clayton Cosgrove: Does she know these things?

Well, you would think that the Minister of Justice, a former lawyer, would be aware of these matters, but it seems that her arrogance got in the way of her knowledge and clouded her judgment in this case. My colleague Charles Chauvel outlined the reasons why we do not believe that this Supplementary Order Paper will be effective. Because of the fact that it is retrospective and because of the fact that it is an inadequate attempt to tidy up a mess caused by Judith Collins, we are unable to support it.

There are two issues that I want to raise here. The first, I have got to say, is really not the fault of the Hon Anne Tolley—

💬 Hon Clayton Cosgrove: What?

Well, it was not her fault, because this is the fault of Judith Collins. It is Supplementary Order Paper 171, which was introduced on today’s date. For a start, it is very bad practice to bring in a Supplementary Order Paper at the very last moment, the eleventh hour, that has not been subject to any scrutiny by the Law and Order Committee, and my learned colleague Charles Chauvel says that there are problems too with this new Supplementary Order Paper.

But what we are doing here is cleaning up a mess that should never have happened, and I for one have had a gutsful of Ministers botching up their portfolios because of sheer arrogance. Judith Collins thought that as Minister she was like Henry VIII and that she could decree there should be no smoking in prisons, regardless of the lack of legislative authority to do that. The arrogance was so great that she ignored the advice that she was given, that she needed legislative authority. I think that Judith Collins should come down to this Chamber and apologise for a botch-up of that nature, which allowed a notorious prisoner, Arthur Taylor, to have yet another victory over a Minister of the Crown—huge expense, and he is chuckling away in his cell in “Pāre max” because he has beaten the Government again.

Pride comes before the fall. Judith Collins thought she was so smart and that she could do anything she wanted. I do not blame Anne Tolley for this, but I do say to Anne Tolley that when you bring in legislation that has not been examined by the select committee, you will not have an excuse when you come back to the House and have to repair it again, if that is the case, as my colleague believes that it will be.

But I want to come back to the comments you made before, Minister, and that was you said you had invited the Opposition to talk about strip-searching and we had not taken it up. Minister, time and again I raised this issue in the select committee. The chair of the Law and Order Committee, Jacqui Dean, can verify that was the case. We put it in our minority report. We raised it with the officials. The reply we got at every stage was that that would not change, because it was set Government policy. So it is a little bit rich, Minister, to come into the Chamber this evening and say that we did not take up the opportunity. We took up that opportunity time and time and time again.

I say to the Minister that it is not too late to rectify a bad legislative move now. The Minister can either take the time now, in the Committee, to get a draft amendment, and we will talk through it while she does that, or she can defer the final debate on the Committee stage of this bill so that her officials can get it right.

But I say, with due respect, to the Minister to have a look at what her own departmental report sums up about the submissions, particularly from the Law Society. The Law Society says that the current legislative provision for strip-searching strikes an appropriate balance between the function of detecting unauthorised items and protecting prisoners from a potential abuse of coercive powers and loss of dignity. That is the Law Society, Minister. You need to take it seriously. You need to take it seriously, too, when two organisations whose members work in the prison, the Nurses Organisation and the Corrections Association, both say this is not justified. Both say that this will make their jobs harder, and the Law Society asks where the justification for this is, when the statistics show that we have been able to reduce the amount of contraband coming into the prisons, from 38 percent in the late 1990s down to 5 percent now.

There is no justification. This will not help the nurses and the corrections officers. It will make their jobs harder. It will break the balance that exists between finding those items and respecting the dignity of individuals. And, Minister, listen to what the Ombudsman said. The Ombudsman said that this is a power that will be subject to abuse. You got it wrong when you wanted the authorisation of prison managers to be taken away, and you acknowledged you got it wrong by removing that clause from the bill.

What I am asking you now, in all sincerity, is to look at this. I am not opposing it for political reasons. I am opposing it because it is the wrong thing to do, and all of the evidence was there that it was the wrong thing to do. You as Minister now have the opportunity to set it right—[Bell rung] Mr Chairman.

The member has exceeded his calls now.

Kia ora. I also want to make some remarks about Supplementary Order Paper 171 to the Corrections Amendment Bill, which seeks to retrospectively put right an error that was made by the Government about 18 months ago. This, of course, has emerged from a High Court ruling, which was quite unequivocal. Justice Murray Gilbert made it quite clear. He referred to the smoking ban that had been put in place as being “unlawful, invalid and of no effect.” That is a fairly robust statement from a judge. There is no room for equivocation in that. He went on to say that he believed that “it was well established in common law that prisoners retained all their civil rights, unless removed by law, so the … starting point was that they had the same rights as other citizens to smoke in their own home.” For all intents and purposes, a cell is a prisoner’s home. That was, I guess, the key finding of the judge in this case.

The issue of smoking in prisons was not overlooked at the time the Smoke-free Environments Act came into force. Section 6A deals with that very thing. It says that the superintendent of a prison must have a written policy that is posted and that “must be based on the principles that as far as is reasonably practicable, an employee or inmate who does not smoke, or does not wish to smoke in the prison, must be protected from smoke arising from smoking in the prison’s cells:”. It also requires, where it is reasonably practicable to do so, that an inmate must not be forced to share a cell with an inmate who does smoke. So, clearly, the issue was not overlooked in the original legislation.

We support the intent to reduce the level of smoking in prisons. Smoking is an addiction. Nicotine dependency and addiction are very powerful. Speaking as a reformed smoker, I know this, and I dare say there are others of us in that same situation. But the fact is that people do wish to smoke and choose to smoke, although we might seek to discourage them.

It is clear that this ban was illegal. The element of retrospectivity in this Supplementary Order Paper is what is particularly concerning. We will not always oppose amendments that seek to make retrospective change. I recall an example from a year or perhaps 2 years ago where, due to a drafting error in legislation, the validity of the rights of recently sworn police officers to exercise the duties and powers of a constable was brought into question. We very happily supported the amendment. It was an unfortunate lapse in drafting—a rare one—and we supported that amendment for very good and obvious reasons.

This Supplementary Order Paper, however, is clearly designed to protect the Government from the consequences of any claims that might now be made against it on the basis of people who have clearly been denied their absolute legal right to smoke. We have heard a little bit about Mr Arthur Taylor, the inmate who successfully brought this case to the High Court. That same person—gentleman, if we may be so bold—put out a press release today: “The Government’s hypocrisy is mind-blowing. It imprisons about 9,000 people for lawbreaking, yet it demonstrates an abject disregard for the rule of law itself—a case of ‘Do as I say, not as I do.’ Such hypocrisy can only undermine Miss Tolley’s own Corrections Department’s rehabilitative efforts with many prisoners.”

We routinely hear from the Government benches the language of consequences. When we seek to protect the rights of prisoners, we are told that prisoners are in there because that is the consequence of their action. This Government knows that it is vulnerable to claims from people who have been imprisoned and denied the right to smoke, and therefore it is seeking to avoid the consequences of its action. Is that not interesting? I look forward to hearing from some of the more, shall I say, volatile spokespeople from the Government on these issues of prisoners’ rights—

💬 Hon Clayton Cosgrove: Nick Smith.

—I will not name them just now—to explain to me why the Government should be protected from the consequences of its action, when some of its members would have us insist that prison inmates must suffer the consequences of theirs. It is unacceptable that this Supplementary Order Paper would put that retrospective correction in place.

It is a matter of debate just how we seek to reduce the level of smoking in prisons, which, we acknowledge, has been very high historically and is not good for anyone’s health. This is not the right mechanism. This is not the solution. We cannot support this Supplementary Order Paper. Thank you.

I have to say that, if you look at the history of Supplementary Order Paper 171, I am advised that this particular measure—the illegal measure of Judith Collins—was introduced in the usual Judith Collins slipshod fashion, ironically pre-election. Why would this have been rushed through?

Judith Collins is a lawyer. This is the justice Minister who will go down in history as being outsmarted by a pretty awful criminal who is in Pāremoremo maximum security prison, “Pāre max”, called Arthur Taylor—if not once, twice outsmarted by a prisoner who does not have a law degree and does not have a legal background. She got outsmarted by him. God knows how much it cost the taxpayer in court action, and—I would say, just in passing—in the anguish of victims who had to watch this individual go out of “Pāre max” and appear in court like some sort of latter-day Perry Mason to outsmart the Minister of Justice, in the arrogant way that I am sure he had.

But here is the point: you now can understand, if you look at the sequencing of this announcement, why it was rushed through and why Judith Collins rejected advice that it required law. It was all about plain, old-fashioned electioneering politics. Judith Collins jumped up and down and stamped her feet, with a Shirley Temple grin: “Let’s be tougher than tough and stop these prisoners smoking. This will be a good election pamphlet to spin out. Who cares about the legality? Who cares about the potential liability to the Crown? Who cares whether the Crown is embarrassed by a bad guy residing in the maximum security prison in the country, about the cost to the taxpayer, or about the anguish? We’ll just rush this through because it makes us look tough.” That was Judith Collins’ argument.

Then we come to the advice. We know that Crown Law advice was proffered to this Government. I am not a lawyer, but Crown Law—you have to assume it knows, and it advises Ministers as to what is legal and what is not legal. It could have advised John Banks—that might have been of assistance to him—but we will not go there. The question I have for the Minister of Corrections is why on earth she will not release said advice. We know it is legally privileged, but, presumably, the advice simply says that the National Government requires legislation to do this properly—to make it an offence, to make it illegal—to implement the policy, or that it does not require a law but can do that by fiat or by royal announcement in a sort of slipshod Judith Collins fashion.

Why would you keep that advice privileged? There is only one reason—there is only one reason, because there is no commercial sensitivity. The only sensitivity is the embarrassment to this Government and the Minister of Corrections, who is in the chair. I will give her this: she is sort of the person with the shovel behind the elephant, having to clean it all up. The person who will be most embarrassed by that advice will be Judith Collins, who has not even taken a call in this debate on the Corrections Amendment Bill. I simply ask the Minister this: why will she not release the advice—which is probably maybe a paragraph long—that says she needs legislation to do this or she does not? The reason is that it would verify what we are saying. The slipshod—maybe if Steven Joyce had been in charge it might have been OK; he might have been able to fix this. Maybe he should be sitting in the seat, taking another portfolio to clean up yet another mess, where a reasonably despicable character, Arthur Taylor from “Pāre max”, managed to outsmart the justice and corrections Ministers and the entire National Government—the entire National Government.

I just simply ask the Minister this: if she will not release the advice from Crown Law, will she advise us why? There is no good reason at all why she should not release that advice, unless it is simply to protect her honour and the honour of her Government and to protect those Ministers, especially Judith Collins, from embarrassment. Judith Collins is going to have a hard job crushing this one and bunging it under the carpet. Here we are passing retrospective legislation in the dead of night, with a Supplementary Order Paper that was dropped on the Table yesterday with no consultation, as usual. I would just say to the Government: “Be it on your own head.” You have stuffed it up yet again. You have been outsmarted by a prisoner from “Pāre max”. It looks stupid. It looks amateurish. It looks awful. And the responsibility is sheeted home directly to that crowd across the aisle. But I say, colleagues, will they ever learn? Will they ever learn to do things properly, through a process, through consultation, and through taking advice? I doubt it.

Malo le soifua. Fa‘afetai mo le avanoa. When I was unfairly interrupted in my speech earlier on, it cut me off from moving on to the smoking ban, and I am now very happy to stand up on behalf of New Zealand First and address the issue of the smoking ban. Last night I actually made a point of talking about some of the important areas where this smoking ban is a concern. I believe, and we believe, that the introduction of the smoking ban in prisons has not ceased cigarette smoking. I have to reiterate that it has not ceased cigarette smoking. Instead, it has created difficult situations where the pressure has now shifted on to families, on to friends, and on to visitors and staff in general.

The interesting thing is that you will have prisoners who are inside the wire who will be selected to go out on external party work programmes. For example, you will have a prisoner called Mr Collins Tolley getting up in the morning, getting ready to go outside the wire to either a farm or a forest where he will be working. At that time Mr Collins Tolley will be allowed to smoke, because the prison smoking ban does not extend to those environments outside of the prison wall. This is a part that the department has failed to incorporate into its smoking ban.

The other thing I want to emphasise here is that the assaults on corrections officers will continue and will always happen. We will also continue to hear of further tobacco-related incidents. People do not know how hard it is to be a corrections officer. People do not understand how impossible it is for corrections officers to enforce any regulations or any rules that this House is responsible for introducing. I can speak from my 6 years of experience in that environment that it is not easy to try to maintain a cool posture when you are actually dealing with prisoners, especially in situations where they are desperate for a smoke. I can assure you that prisoners will find a way, because they are so intelligent. That is the reason why they got there in the first place, because they are too smart for their own good.

💬 Hon Clayton Cosgrove: They outsmarted the Government.

Absolutely. After all, they won the case. So, Minister, the situation over the smoking ban needs to be reviewed. It is an unrealistic attempt to ban smoking in prisons, when prisoners on the Release to Work programme are free to smoke. You cannot expect them to leave the wall, go outside, and work on those external working parties, where they can smoke all day long, and then come back to the prison and give it up just like that. The Government is doing more damage to the prisoners by introducing something that is impossible—impossible—to be monitored and to be carried out.

The next thing I want to say about the smoking ban is that the Government, instead of introducing a smoking ban, would do well to introduce a comprehensive, ongoing stop-smoking education programme for all prisoners. That is a realistic approach. It is not realistic that prisoners will be banned from smoking while staff who cater for them can carry on smoking. How ridiculous that is. So it is a stroppy attempt that comes with unfair implications—for example, in respect of human rights. It is impossible for you to say to the prisoner—or for the corrections officers themselves to say to the prisoner—“I am taking you out on a working party. You can’t smoke, and I can.”

Taloha ni, Mr Chair. Thank you very much for giving me this opportunity. The catchcry from the Government almost ad nauseam is that all that Labour does is oppose—oppose, oppose, oppose. Anything that the Government puts up in this House, we just oppose. Well, maybe it should have listened to us when we said that it was going to need some legislation to introduce a smoking ban in prisons.

💬 Hon Clayton Cosgrove: Or Crown Law.

Or the Crown Law advice. On this side of the Chamber we support a ban on smoking in our prisons. For the benefit of the health of the inmates and also to give the officers in our prisons a smoke-free workplace, we support the ban on smoking. But at the time that the Government introduced this measure, we said that if it was going to do it—because we support it—it was going to have to bring it into law. But Judith Collins, the corrections Minister at the time, did not listen to us, because we were just opposing. What would we know on this side of the Chamber? Our opposition at the time, and the Government’s haste to try to get this through in an attempt to look tough on prisoners pre-election, meant that a couple of days before Christmas one of the worst crims in this country, who resides at “Pāre max”, I am told, had an early Christmas present, unfortunately for the Government, by outwitting Judith Collins. I do have some sympathy for the Minister in the chair at the moment, Anne Tolley, because she has had to clean up the mess that Judith Collins has created. She has had to introduce this Supplementary Order Paper 171, which amends Part 1 of this bill at clause 4 so that tobacco and any equipment used for smoking tobacco or any other substance are classified as unauthorised items in the Corrections Act.

So I would just like to maybe ask the Minister in the chair her opinion of the performance of the corrections Minister at the time when she made this change, which has forced this Minister to come to this Chamber and introduce a very late Supplementary Order Paper to the Corrections Amendment Bill asking for a law to be passed to make smoking essentially illegal in our prisons—pretty much what the Labour Opposition told the Government needed to happen in order for this to happen. I will reiterate that we do support the banning of smoking in prisons. We do not think smoking is needed. By all accounts it seems to have worked, and there has not been an outcry or any change in behaviour with prisoners. So we think it is a shame that by way of a very late Supplementary Order Paper the Government, and, unfortunately, Anne Tolley, has had to do this, has had to introduce a Supplementary Order Paper to try to bring that change about by law. Again, I will just let those people at home know that we suggested—actually strongly suggested—that the Government do that at the time.

I did want to thank the Minister in the chair, though, for taking a call earlier on and answering some of the questions that were put to her earlier in the debate, but there was one question that I think has not been answered—that is, why the Government is continuing with the change in the strip-search regime when there was such opposition to it at the select committee consideration. I talked about opposition from the Corrections Association of New Zealand; I think it is the largest association representing our corrections officers—again, people who day to day go to work on their shift and have to look after the inmates in our prisons. They said in their submission to the Law and Order Committee that they do not support the change in the strip-search regime, and in fact the change, they thought, was going to make their job harder and would increase the number of assaults on prison officers. I do not think that should be taken very lightly, and again I want to pose the question to the Minister in the chair as to why the Government is pushing on with this when our Corrections Association has said it will make corrections officers’ jobs harder and potentially increase the danger to them in their day-to-day dealings with inmates. Again, the New Zealand Law Society looked for some rationale as to why the Government was changing the strip-search regime, and it offered up some evidence. It said there is no evidence that the proposed changes would make any difference, because there has already been an effective reduction in the use of drugs in prisons over a 15-year period. Positive drug-tests in prisons have fallen from 36 percent—

I move, That the question be now put.

The question is that the question be now put. As many as are of that opinion will please say Aye, to the contrary, No. The Ayes have it. [Interruption] Party vote called for? [Interruption] First of all, I will put the Minister’s amendments set out on Supplementary Order Paper 171. All those in favour of the Minister’s amendments set out on Supplementary Order Paper 171—

💬 Iain Lees-Galloway: I raise a point of order, Mr Chairperson. Should we not have a vote on the closure motion first?

The CHAIRPERSON (H V Ross Robertson): No one called for it.

💬 Hon Members: Yes, we did.

The CHAIRPERSON (H V Ross Robertson): Sorry, I missed that. My apologies.