Corrections Amendment Bill

New Part 3 of the Corrections Amendment Bill is a new part. It is a very small part, and it is introduced in order to make amendments to the Smoke-free Environments Act that are consequential on the other amendments in Minister Anne Tolley’s Supplementary Order Paper 171 that the Committee has just agreed to. When we deal with this new part, we need to understand that what we are doing is repealing in the Smoke-free Environments Act the definition of “prison”, and also changing the definition of “workplace”, because of the exclusions that we have just agreed to as a Committee. What I want to do—I hope with the indulgence of the Committee—is just ask the Minister to consider the way in which those previous amendments have been put together. I think, from her discussion with me and on a reading of the legislation, the debate has not been entirely fair to her. I think she has tried to get the officials to come up with a solution that does not involve retrospectivity—or, at least, that limits the extent to which retrospective legislation is to be applied in this situation. I think I am right, and the Minister is nodding.

Accepting that she has sought to try to fix up the mess in an as constitutionally appropriate a way as she can, I still wonder whether the wording of the legislation is as good as it could be. I said before that I acknowledge that the Minister had consulted me about it, and I put that on record again. This debate is the first opportunity I have had to respond, and I am trying to do that in good faith. I said before that I was concerned that the mechanism that the substantive legislation uses is to restore the legality of the ban; to declare the regulations and the rules to be treated as if they are part of the Act from the date of the tabling of the Supplementary Order Paper. The way that the Minister is attempting to protect the Crown’s liability is by the provision in the enactment that no proceedings may be brought against the Crown questioning the validity of those rules and regulations.

Well, I expressed some concerns about that provision earlier and it has just occurred to me that there is another category of proceeding that we might not be dealing with effectively through this legislation. I wonder whether the Minister would consider this situation. Presumably, under the ban that was implemented administratively, for want of a better way to describe it, there were situations where a prisoner was subject to disciplinary proceedings because he or she possessed tobacco, which was declared to be contraband, and was found to possess it, and was then subject to, as I say, a disciplinary procedure. I wonder what the position would be under this amendment if a prisoner now took proceedings to question the validity of the outcome of that sort of disciplinary proceeding, because it seems to me that they would not, by those proceedings themselves, necessarily be questioning the validity of the rules or regulations; they would be questioning the validity of a penalty imposed on them by legislation or rules that have subsequently been found to be ineffective. So questioning the disciplinary outcome would not necessarily be questioning the validity of the rules and regulations, or at least not only questioning the validity of the rules and regulations. I am genuinely keen to see whether the Minister would confer with the officials and perhaps provide some comfort to the Committee on that point.

Perhaps while that is being done they might want to consider the other issues that were raised earlier—for example, a complaint to the Regulations Review Committee. Would that be a proceeding or would it be something else, and should we be concerned about that? And what about independent proceedings based on claims under the New Zealand Bill of Rights Act for damages or judicial review? So if the Minister would consider those issues, I think it would be very helpful.

Taloha ni, Mr Chair. I would like to take a relatively quick call on new Part 3, which is contained in Supplementary Order Paper 171 to the Corrections Amendment Bill, which has been put forward by the Minister of Corrections. I want to reiterate that on this side of the House we do support our prisons being smoke-free, and I want to outline our rationale for that, too.

I think Charles Chauvel has pointed to some concerns that he has around the retrospectivity of the new smoking part of this amendment bill, but Labour does support smoke-free prisons. As I said in my previous contribution, we think it is good for the overall health of the inmates, and we do need to look at that as part of their rehabilitation. We need to try to get them back on—I guess the phrase could be—the straight and narrow by supporting prisons being smoke-free. We think that is a wise thing to do. We do have concerns about the way the Government previously introduced this measure. We did say that it should have been done legislatively. That was not done, and we do have this Supplementary Order Paper before us. We do support also, of course, prison officers having a smoke-free workplace environment.

I think at the outset, when this measure was proposed by the Government, there was some concern that it might cause a level of disquiet amongst the inmates. But it was introduced, and I think on the whole—and I think people may have said this at the Law and Order Committee, as a side issue to what was being proposed in the bill, before this Supplementary Order Paper was introduced—the smoking ban in prisons to date has worked quite well. Any issues that people thought might arise—and I think they reasonably may have thought that, given how closely prisoners guarded their cigarettes before the ban was in place—have not necessarily eventuated. I think kudos must have to go to the Department of Corrections for the way it has brought that in and some of the support it has given to the inmates as smoking was banned.

I want to touch again on some of the politics of this. I think the Government will be very happy that this part is being debated at quarter to 10, because this has not been a good look for it. It has had to introduce this Supplementary Order Paper to make this change. When it made the change in another way, the Labour Opposition warned that it should do it legislatively. I do have a certain amount of sympathy for the Minister in the chair, the Minister of Corrections, because she is not necessarily to blame for the fact that this Supplementary Order Paper has had to be introduced, and that it has had to be done this way. It was the previous Minister of Corrections who did not heed some of the, I guess you could call it, opposition or suggestion from the Labour Party that it should be done legislatively, and maybe kudos has to go to the Minister in the chair for bringing this measure to the Committee by way of a Supplementary Order Paper. Unfortunately, we are not going to support it, because of the way that it has eventuated and because we have concerns about other parts of the bill, most notably the private management of our prisons, and, of course, something in Part 1 around the change to the regime for strip-searching.

In conclusion, we want to just reiterate our support for smoke-free prisons. We are not happy that this is happening now, considering that we did warn the Government much earlier on, before these changes came in, that it should do it by law. It did not, and now it finds itself in the strange position of having to do it in a rather hasty manner and by way of a Supplementary Order Paper. We want to make sure that our prisons are safe and are good workplace environments, especially for those prison officers who have to deal day to day with some of the issues that inmates can cause.

I have taken some advice in answer to Mr Chauvel’s query, and I have been assured that any legal action would have had to have been lodged on or before 12 February, when Supplementary Order Paper 171 was tabled. Again, it is not possible to question the validity of disciplinary proceedings without also questioning the validity of the rules or regulations. So that advice then says that this Supplementary Order Paper rules that out. I thank the member.

I am grateful to the Minister of Corrections for taking that advice. To be as clear as I can be, my concern is twofold. First of all, the definition of proceedings—that is, I think, pretty clearly limited to proceedings in court. My point was really that there are other types of remedies or causes of action or procedures open to people who wish to challenge the validity of regulations, and I am not sure that section 179AA(2) does extinguish all those types of proceedings. The Minister is nodding her head, so obviously that is deliberate, but I think we should be clear that that is the case.

If I did not express clearly the second concern I had, I apologise. It was about proceedings that do not make a head-on challenge to the rules and regulations that are being validated by this Supplementary Order Paper but that rely on independent causes of action, such as an attempt to—I think of the examples I used earlier—seek judicial review in and of itself by virtue of either section 21 or section 27 of the New Zealand Bill of Rights Act, or to seek Baigent damages based on those provisions. If the officials have considered those expressly and think that they are excluded, well and good. But I just want us to be clear that the Minister is proceeding on the basis of that very clear advice, if that is what she is doing.

New Part 3, as set out on the Minister’s Supplementary Order Paper 171, makes some consequential amendments to the Smoke-free Environments Act. Specifically, it removes references to “prison” in the interpretation section and amends the definition of “workplace”. It also repeals section 6A, which referred to the procedures that had to be put in place in prisons in order to ensure that prisoners who were smoke-free were able to have, I suppose, quiet enjoyment of their prison cell and be able to be smoke-free themselves without other prisoners impinging upon that. It is because of that, and also the fact that prison officers and corrections staff working in prisons are able to now safely work in their workplace whilst being smoke-free, that we on this side of the Chamber do support the concept of smoke-free prisons.

I want to make it quite clear that we have some real problems with the way this legislation is being passed—the fact is that this is a Supplementary Order Paper being introduced to tidy up a mess caused by Judith Collins, a fact that has been well canvassed by many members in the Chamber this evening—but there is also the fact that this is being introduced as a Supplementary Order Paper without much warning from the Government, without the opportunity for the select committee to give it the scrutiny that it really requires, and without the ability for the Attorney-General to offer an opinion regarding the New Zealand Bill of Rights Act.

It is quite possible that this Supplementary Order Paper does contravene, on the face of it, the New Zealand Bill of Rights Act, and that may also open up the Government to future complaints—possibly to the Regulations Review Committee; I do not know. There seem to be a lot of holes in this Supplementary Order Paper and it has not received the scrutiny that it really ought to have. Therefore, we cannot support it, because we could just be leaving the New Zealand taxpayer vulnerable in the way that Judith Collins did in the first place. We may find, because neither the Attorney-General nor the select committee has been able to give this Supplementary Order Paper the scrutiny necessary, that this just leaves taxpayers as vulnerable as they were in the first place.

I just want to make one point, and that is that although we are supportive of the smoking ban in prisons, what this is effectively is a form of prohibition. Within a prison, this is a form of prohibition, and what you get when you introduce prohibition is a black market. We have known for some time—an article that I was able to reference this evening is in the New Zealand Herald; I think there were others—that the price of an illegal quantity of cigarettes or tobacco in prisons has now reached $500. That is a direct consequence of introducing prohibition. That is not money that the Government is able to collect and use to reduce the harm caused by taxpayers; that money is probably going directly to organised crime and the relatives of prisoners. That is an unintended consequence of introducing prohibition. So although we are supportive of the measure, I think it is important to point that out: that when we are considering effective ways to deal with substances like tobacco, prohibition is not always the best way forward.

Although we can appreciate what the Minister of Corrections is trying to achieve with these amendments in the new Part 3, which will amend the Smoke-free Environments Act, as I said, we are unable to condone this legislation because all it is is a backside-covering job for the Government, to try to tidy up the mess caused by Judith Collins. We do not think it is effective. We think that it has far too many opportunities for future litigation by learned prisoners such as the gentleman whose name, again, escapes me—

💬 Kris Faafoi: Arthur Taylor.

—Arthur Taylor—who has been able to—

💬 Hon Ruth Dyson: Who’s not a lawyer.

—who is not a lawyer—

I move, That the question be now put.