About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.

Introduction

2. The Council recognises that the intention of this bill is to clarify and improve the management of prisons. 
3. We particularly support the implementation of recommendation 1.13 of Corrections’ Hokia Rangi strategy by clauses 6 and 7 of the bill.
4. However, we also note issues around the retention of intercepted data and the mingling of accused and convicted prisoners.

Use of non-lethal weapons

5. Clause 21(2) of this bill amends the information gathering process around the use of weapons against people in prisons.  The Council commends the attention to information management.
6. The proposed s 85(3B) provides a list of information which the chief executive of corrections could provide to the Minister.  It leaves all of the discretion with Corrections.  It should be amended to indicate that Corrections will provide all of the information listed, unless Corrections can establish that the information does not exist.
7. Neither the principal act nor this bill oblige the Minister to do anything with the information provided after considering it.  The Council recommends that the information provided and the Ministers decision should be published.

Recommendation 1

• Amend clause 21(3B) to read that the chief executive must provide the information listed if it exists.

Recommendation 2

• In clause 21 add a new subsection 3C after subsection 85(3) of the principal Act to require the minister to publish on the department’s website the information relied upon by them when deciding that regulations need to be made.

 Data Retention

8. Information privacy principle 9 of the Privacy Act 2020 is that an “Agency [is] not to keep personal information for longer than necessary”.
9. The proposed section 127R obliges Police and other agencies to dispose of records passed to them by Corrections under 127N when it is not required, or is no longer required, by the Police and other agencies for the purposes of their functions. However, there is no explicit limit on the retention of this information by Corrections, since 127N is about disclosure to people outside of the Department. This seems to mean that the Department is not caught by 127R(4) definition of a public service agency.
10. This compares to s 120 Destruction of Recordings in the principal Act where recordings of prisoner phone calls must be deleted not later than 2 years after they were made.
11. The Council is concerned that by not explicitly reproducing the s 120 limit, information will be retained for any period permitted by the Department’s disposal schedule under the Public Records Act. We consider that this could be too long and, given concerns about the quality of information management across government, may result in the over-retention of personal information which would be inconsistent with the Department’s obligations under information privacy principle 9.
12. Proposed section 127R is also silent on who, and by what mechanism, would verify that the Police and other agencies have complied with their information disposal duties. The section could be strengthened by making clear that complaints about this should be handled by the Privacy Commissioner, and that the Ombudsmen have the power to refer any suspected over-retention they encounter in their own investigations to the Privacy Commissioner.
13. We think the most transparent approach would be to explicitly adopt the requirement in s 120 to destroy records when no longer needed and before the defined retention period, and add it to a new section after 127R. 
14. Records should be destroyed or erased after this period, not merely ‘disposed of’, since under the Public Records Act this is broader than the s 120 wording. This should be made subject to the retention of records set out in proposed s 127Q or and 127R. 

Recommendation 3

• Add a new section after 127R that adopts the approach to the destruction of records taken in s 120 of the principal Act.

Regulations relating to safe custody of prisoners

15. Clause 45 allows for the mixing of people who have been sentenced to prison with people who have been remanded to prison in order to provide rehabilitative programmes. 
16. Clause 45 intentionally contravenes a series of international best practices which are codified in international agreements to which we are signatories. Paragraph 468 of the RIS cites:
    1. Article 10(2) of the ICCPR, 
    2. Rule 11 of the Mandela Rules R
    3. NZBORA s 25(c)
    4. United Nations Office on Drugs and Crime, Notes and comments on the United Nations Standard Minimum Rules for the Treatment of Prisoners.
17. The Council supports the continued separation of remanded and sentenced people in accordance with these international standards. To overcome this objection we would need to be persuaded both that it would be a benefit, and that it would not cause harm. 
18. The main benefit cited in the explanatory notes seems to be around the cost of providing parallel therapeutic streams to both remanded and convicted prisoners. i.e. that this is an attempt to save money. We find that “saving money” is a very weak argument for breaking long-held international practice.
19. There does not seem to be any consideration of the presumably well-founded reasons for the division, and how these reasons would be accounted for in this new arrangement. 
20. In view of the lack of any supporting argument, we recommend that clause 45 be removed from the Bill.

Recommendation 4

• Remove clause 45 from the bill.

Attorney General’s Bill of Rights Act Compliance Report

21. The Council notes that the NZBORA report was performed on a draft, not the current bill. The Council recommends that the Committee ask the Attorney General to update their report before the Committee prepares its report.
22. The Council thanks members of the Committee for their time and consideration of our submission.