Chauvel Charles: Corrections Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Corrections Amendment Bill — In Committee 
[Sitting date: 13 February 2013. Volume:687;Page:7848. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 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 Maori 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.