NZ Council for Civil Liberties

Submission: Corrections (Management of Prisoners, and Prisoners’ Property) Amendment Bill

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 founded in 1952 which advocates to promote human rights and maintain civil liberties.
  2. We wish to make an oral submission to the Committee.

Introduction

  1. This bill makes a diverse set of changes to the Corrections Act. Despite the benign name of ‘Management of Prisoners, and Prisoners’ Property’, this bill places unjustified and disproportionate limits on our rights to be healthy, to justice, and to freedom of association.
  2. Everyone has a right not to be deprived of meaningful human interaction. The Regulatory Impact Statement (RIS) agrees that meaningful human interaction is a right which is important to our health. 1 The RIS also states that the intended purpose of this bill was to strengthen legal protections for that right.2  Instead clause 18 does the opposite and further deprives us of meaningful human interaction.
  3. The Supreme Court ruled in Attorney-General v Chisnall [2024] NZSC 178 that post sentence orders are not compliant with section 26(2) of the New Zealand Bill of Rights Act (BORA). The New Zealand Law Commission’s Report #149: Here ora: Preventive measures in a reformed law (R149) fully agrees. As does the Ombudsman’s scathing report on this bill: Consultation on options for more transparent management of extreme threat prisoners. Despite this unambiguous advice, the “designated management prisoner” parts of this bill give the Chief Executive of Corrections the power to act as a judge and impose what should be understood as sentences.  The Council advises that the “designated management prisoner” portions of this bill are not compatible with BORA.
  4. Thirdly, new section 58 grants Corrections the power to limit our BORA section 17 rights to freedom of association. New subsections 58(1)(c), (d), and (e) are variations of Corrections being permitted to impose penalties based on nothing more than suspicion. If Corrections, at any stage during a person’s imprisonment, has evidence that an offence is being organised, then they must refer it to the courts.  Section 58 puts unjustifiable limits on both BORA section 17 and section 27, our right to justice.

Solitary confinement

  1. This bill both cites the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and boldly violates them.  Article 44 states: 

solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.

  1. According to RIS, segregation results in significant harm:3

Research shows that being separated from the mainstream prison population and having limited human interaction can negatively impact a prisoner’s physical and mental wellbeing and can have stark effects on a prisoner’s ability to engage in rehabilitation. This can lead to the prisoner having difficulty reintegrating back into the mainstream prison population or wider society. They also risk developing or exacerbating existing mental health issues including anxiety, panic attacks, depression, hopelessness and can lead to an increased risk of self-harm and suicide.

  1. Clause 18 of this bill creates a new Section 69A based on the Nelson Mandela Rules. However, rather than having at least two hours a day of meaningful contact as outlined in the Mandela Rules, this bill changes this to at least 10 hours in each 14-day period with the ‘desirable’ outcome being at least 14 hours each week. The desirable outcome is not an entitlement.
  2. As we previously noted, according to the RIS the purpose of this bill is to increase access to meaningful human interaction, as recommended by the Inspectorate and the Ombudsman.

Recommendation 1
Change proposed section 69A by replacing the title before subsection 3 with
“Duty to provide at least 2 hours of meaningful contact every day”
and in subsection 3 replace
“at least 14 hours of meaningful human contact in each week.” with “at least 2 hours of meaningful human contact every day.”

  1. For decades Corrections has routinely failed to deliver people’s entitlements. There are no consequences for anyone in Corrections when section 69 and proposed section 69A “entitlements” are not delivered.

Recommendation 2
Establish penalties for Corrections leadership when section 69 and proposed section 69A rights are violated, and clarify that people are entitled to compensation when Corrections fails to deliver on those rights.

Legal status of the Mandela Rules

  1. Section 5(1)(b) of the Corrections Act states that the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by … providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
  2. The Department Disclosure statement repeats Corrections rationalisation that:4

The Nelson Mandela Rules are not binding on the Crown, as they have not been ratified and incorporated into domestic legislation, but they are referenced in the Corrections Act under section five.  

  1. The Council is disappointed by Corrections’ interpretation Section 5(1)(b). The Council notes that Corrections encourages people to file complaints when the Mandela Rules have not been respected.
  2. There are a variety of wordings used to incorporate Human Rights treaties into our laws.5 Corrections’ argument that they are not bound by the Nelson Mandela Rules is an active choice by Corrections. The most appropriate action is for their Minister to correct them. However, Parliament can clarify its intent to reduce the room for misinterpretation.

Recommendation 3
In section 5(1)(b) “Purpose of corrections system” replace
providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners;
with
providing for corrections facilities to be operated in accordance with rules set out in this Act, regulations made under this Act, and the United Nations Standard Minimum Rules for the Treatment of Prisoners.

Designated Management Prisoners

  1. Clauses 6,19, 29-32, and 36 and schedules 2 and 4 of this bill establish a Designated Management Prisoner (DMP) programme.  In this programme, the Chief Executive of Corrections is granted quasi-judicial powers to apply post sentence orders. Worse still, under proposed section 52K, that same individual is designated as the person who decides on appeals. This is wholly contrary to our system of justice.
  2. The Council notes that our prisons are not supposed to be lawless places. If people in prisons are committing further violent offences, then Corrections’ duty is to launch criminal prosecutions in open court.  If Corrections wants to punish behaviours against which they are unable obtain a conviction in criminal court, then that desire is a prima facie violation of our right to justice under BORA section 27.

NZLC R149: Here ora: Preventive measures in a reformed law

  1. Earlier this year, this select committee accepted the New Zealand Law Commission’s Report #149: Here ora: Preventive measures in a reformed law (R149). R149 was the result of years of effort by a team, with two rounds of public consultation in which the Council took part. This select committee agreed with R149’s recommendations, as does the Council.
  2. Attorney-General v Chisnall [2024] NZSC 17, as summarized by R149 at 3.41, ruled that post sentence orders are not BORA compliant.  The Council notes that no changes have been made to implement R149, and that post sentence orders remain inconsistent with BORA. Among R149’s conclusions, as summarized in chapter 1, are that criminal courts ought to impose all post sentence orders and that a multitude of safeguards should be enacted.
  3. The DMP designation in this bill is broadly similar to post sentence orders in effect and justification.6 Therefore, the Council recommends adapting the recommendations of R149. Foremost amongst those would be replacing the CE of Corrections as judge and jury for DMP designation with actual judges in criminal courts.

Recommendation 4
Remove all of the sections on Designated Management Prisoners from this bill, and instead enact R149

Prisoners of Extreme Risk Unit (PERU)

  1. The Ombudsman issued a scathing report on this bill when they were consulted. The Ombudsman is our National Preventative Mechanism under the Convention Against Torture, and is therefore our nation’s foremost expert.  The Council will now highlight and support the Ombudsman’s conclusions.
  2. Despite years of constant engagement with Corrections, the Ombudsman reports that “there is no clear objective or purpose” for PERU.7 The reasons for the existence of PERU are unclear to our nation’s foremost expert:8

Critically, the ‘extreme threat’ / PERU model remains, in the Chief Ombudsman’s view, incoherent and inconsistent, as well as fundamentally misaligned with a human rights based approach and best practice in prison management. 

  1. The Ombudsman believes that the conditions and treatment in PERU constitute violations of article 16 of the Convention Agaist Torture and of the New Zealand Bill of Rights Act (BORA).9
  2. The Ombudsman draws attention to serious flaws in the process by which people are deemed to be Designated Management Prisoners, and Corrections’ inability to provide any evidence that PERU is a suitable mechanism for handling these people.10 Instead the Ombudsman cites the United Nations Office on Drugs and Crime’s Handbook on the Management of High-Risk Prisoners as recommending the opposite.11
  3. The Ombudsman recommends abolishing PERU:12

I consider the use of the PERU Operating Model to be inhumane, unacceptable, and harmful. Therefore, I recommend the Department of Corrections stop the use of the PERU Operating Model, and remove operational control of the Unit from the Persons of Extreme Risk Directorate, without delay. [emphasis in original]

  1. This bill does the opposite, enshrining PERU in primary legislation so that even when Corrections discovers their errors, they will be unable to close PERU without another act of parliament.

Recommendation 5
Remove all references to the Prisoners of Extreme Risk Unit from this bill.

Freedom of Association

  1. New Section 58 provides for significant limits on our BORA section 17 right to freedom of association. The Council believes that most of the grounds in section 58(1) are not compatible with a free and democratic society. 
  2. Section 58(1)(a) “the security, or good order, of the prison would otherwise be endangered or prejudiced” is already dangerously broad and covers most justifiable reasons for limiting freedom of association.
  3. The Council wholeheartedly supports section 58(1)(b) “the safety of another prisoner, or of another person, or of both, would otherwise be endangered.”
  4. The Council strongly opposes section 58(1)(c) “offences (other than offences against discipline) would otherwise be committed.“ BORA section 27 does not allow people to be punished for acts that they might commit in the future.  If Corrections has evidence that crimes will be committed, then they must refer the matter to the courts. Allowing Corrections instead of criminal courts to punish people for planning crimes is a violation of our right to justice from BORA section 27.
  5. The Council opposes section 58(1)(d):“a prisoner or another person would otherwise be radicalised, or recruited to an ideology, and that would likely result in harm to that radicalised or recruited other person, 1 or more other persons, or both.” Again, BORA section 27 does not allow people to be punished for crimes that they might commit in the future. Whilst acknowledging the unacceptably poor quality of New Zealand’s terrorist laws, section 58(1)(d) will often duplicate section 12 of the Terrorist Suppression Act, with even fewer safeguards. In other circumstances section 80 of the Crimes Act, “Oath to commit offence”, will apply. The Council urges the Committee to consider if there are any circumstances not covered by these two already existing sections where the speech, however radical, does not deserve rigorous defence under BORA section 14, freedom of expression.  The Council are radical proponents of BORA, and we firmly believe that great benefit would come to everyone if we were all recruited to that ideology.
  6. The Council strongly opposes section 58(1)(e) “a prisoner or another person would otherwise be recruited into an organised criminal group”.  It is inappropriate for Corrections to be able to designate someone as being part of an ‘organised criminal group’ (new section 3AA). Section 98A Crimes Act establishes a maximum sentence of 10 years for being part of an organised criminal group. Allowing Corrections to punish people for crimes which have not been decided in criminal court is a violation of our right to justice from BORA section 27.

Recommendation 6
Remove new sections 58(1)(c),(d),and(e), and subsequently clause 5 from this bill.

33. The Council thanks members of the Committee for their time and consideration of our submission.

  1. RIS, at paragraph 165 ↩︎
  2. RIS page 40, section C, option set one. ↩︎
  3. RIS at paragraph 165 ↩︎
  4. DDS at 2.2 https://disclosure.legislation.govt.nz/bill/government/2026/243 ↩︎
  5. BORA says it is “an act to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.”

    Section 2A of the Crimes of Torture Act says “The purpose of this Part is to enable New Zealand to meet its international obligations under the Convention.” 

    Section 7 of the Children’s Commissioner Act goes furthest saying “The Children’s Convention is set out in Schedule 2 for information and reference purposes only.”

    To the best of the Council’s knowledge, none of the agencies involved claim not to be bound by the treaties referenced in these many ways. ↩︎
  6. The Ombudsman’s report reaches this same conclusion in paragraph 25 ↩︎
  7. Ombudsman, paragraph 16 ↩︎
  8. Ombudsman, paragraph 10 ↩︎
  9. Ombudsman, paragraph 17 ↩︎
  10. Ombudsman, paragraphs 26 to 36 ↩︎
  11. Ombudsman, paragraph 29 ↩︎
  12. Ombudsman, paragraph 8(a) ↩︎