Corrections Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Corrections Amendment Bill — In Committee 
[Sitting date: 13 February 2013. Volume:687;Page:7832. Text is incorporated into the Bound Volume.] 
Corrections Amendment Bill 
In Committee 
Part 1 Amendments to Corrections Act 2004 
CHARLES CHAUVEL (Labour) 
: 
 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. 
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 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 Paremoremo 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. 
The CHAIRPERSON (Eric Roy) 
: No I am going to have a change. 
JACQUI DEAN (National—Waitaki) 
: 
 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. 
JACQUI DEAN 
: —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. 
JACQUI DEAN 
: 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. 
KRIS FAAFOI (Labour—Mana) 
: 
 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. 
Hon ANNE TOLLEY (Minister of Corrections) 
: 
 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? 
Hon ANNE TOLLEY 
: You sat in my office— 
Hon Gerry Brownlee 
: No you can’t request it Charles. 
Hon ANNE TOLLEY 
: 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. 
DAVID CLENDON (Green) 
: 
 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. 
Le’aufa’amulia ASENATI LOLE-TAYLOR (NZ First) 
: 
 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. 
Le’aufa’amulia ASENATI LOLE-TAYLOR 
: Part 3 yes. 
The CHAIRPERSON (Eric Roy) 
: Well and we are on Part 1 so— 
Le’aufa’amulia ASENATI LOLE-TAYLOR 
: OK so I will talk about it afterwards. 
The CHAIRPERSON (Eric Roy) 
: Yes. Righto. 
MARK MITCHELL (National—Rodney) 
: 
 I move  
That the question be now put 
. 
IAIN LEES-GALLOWAY (Labour—Palmerston North) 
: 
 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. 
IAIN LEES-GALLOWAY 
: 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? 
IAIN LEES-GALLOWAY 
: —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. 
CHARLES CHAUVEL (Labour) 
: 
 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. 
The CHAIRPERSON (H V Ross Robertson) 
: Yes that is the understanding. 
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. 
IAN McKELVIE (National—Rangitikei) 
: 
 I move  
That the question be now put 
. 
IAIN LEES-GALLOWAY (Labour—Palmerston North) 
: 
 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. 
IAIN LEES-GALLOWAY 
: 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? 
IAIN LEES-GALLOWAY 
: I believe she is the Minister of Justice. 
Hon Clayton Cosgrove 
: Does she know these things? 
IAIN LEES-GALLOWAY 
: 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. 
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 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? 
Hon PHIL GOFF 
: 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 “Pare 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 CHAIRPERSON (H V Ross Robertson) 
: The member has exceeded his calls now. 
DAVID CLENDON (Green) 
: 
 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 9000 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. 
DAVID CLENDON 
: —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. 
Hon CLAYTON COSGROVE (Labour) 
: 
 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 Paremoremo maximum security prison “Pare 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 “Pare 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 “Pare 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 “Pare 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. 
Le’aufa’amulia ASENATI LOLE-TAYLOR (NZ First) 
: 
 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. 
Le’aufa’amulia ASENATI LOLE-TAYLOR 
: 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.” 
KRIS FAAFOI (Labour—Mana) 
: 
 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. 
KRIS FAAFOI 
: 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 “Pare 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— 
COLIN KING (National—Kaikoura) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (H V Ross Robertson) 
: 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. 
A party vote was called for on the question  
That the question be now put. 
Ayes 63 
New Zealand National 59; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 56 
New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 171 in the name of the Hon Anne Tolley to Part 1 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 58 
New Zealand Labour 34; Green Party 14; New Zealand First 7; Maori Party 2; Mana 1. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to.  
Ayes 68 
New Zealand National 59; New Zealand First 7; ACT New Zealand 1; United Future 1. 
Noes 51 
New Zealand Labour 34; Green Party 14; Maori Party 2; Mana 1. 
Part 1 as amended agreed to. 
Part 2 Amendment to Courts Security Act 1999 
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 68 
New Zealand National 59; New Zealand First 7; ACT New Zealand 1; United Future 1. 
Noes 51 
New Zealand Labour 34; Green Party 14; Maori Party 2; Mana 1. 
Part 2 agreed to. 
New Part 3 Amendments to Smoke-free Environments Act 1990 
CHARLES CHAUVEL (Labour) 
: 
 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. 
KRIS FAAFOI (Labour—Mana) 
: 
 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. 
Hon ANNE TOLLEY (Minister of Corrections) 
: 
 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. 
CHARLES CHAUVEL (Labour) 
: 
 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. 
IAIN LEES-GALLOWAY (Labour—Palmerston North) 
: 
 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. 
IAIN LEES-GALLOWAY 
: —Arthur Taylor—who has been able to— 
Hon Ruth Dyson 
: Who’s not a lawyer. 
IAIN LEES-GALLOWAY 
: —who is not a lawyer— 
COLIN KING (National—Kaikoura) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 63 
New Zealand National 59; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 56 
New Zealand Labour 34; Green Party 14; New Zealand First 7; Mana 1. 
Motion agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 171 in the name of the Hon Anne Tolley to add new Part 3 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 68 
New Zealand National 59; New Zealand First 7; ACT New Zealand 1; United Future 1. 
Noes 51 
New Zealand Labour 34; Green Party 14; Maori Party 2; Mana 1. 
New Part 3 agreed to. 
Clauses 1 and 2 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 68 
New Zealand National 59; New Zealand First 7; ACT New Zealand 1; United Future 1. 
Noes 51 
New Zealand Labour 34; Green Party 14; Maori Party 2; Mana 1. 
Clause 1 agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 171 in the name of the Hon Anne Tolley to clause 2 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 58 
New Zealand Labour 34; Green Party 14; New Zealand First 7; Maori Party 2; Mana 1. 
Amendment agreed to. 
A party vote was called for on the question  
That clause 2 as amended be agreed to. 
Ayes 68 
New Zealand National 59; New Zealand First 7; ACT New Zealand 1; United Future 1. 
Noes 51 
New Zealand Labour 34; Green Party 14; Maori Party 2; Mana 1. 
Clause 2 as amended agreed to. 
Progress to be reported presently. 
House resumed. 
The Chairperson reported the Corrections Amendment Bill with amendment and no progress on the Privacy (Information Sharing) Bill. 
Report adopted.