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Corrections Bill 2002 (Consistent) (Sections 9, 17, 21, 22, 23(5), 27(1)) [2003] NZBORARp 8 (10 February 2003)

Last Updated: 1 November 2020

Corrections Bill 2002

10 February 2003

Attorney-General

Legal Advice
Consistency with the New Zealand Bill of Rights Act 1990: Corrections Bill 2002

1. We have considered whether the Corrections Bill 2002 (PCO 4467/13) is consistent with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights Act". We understand that this Bill is to be considered by the Cabinet Legislation Committee on Thursday, 13 February 2003.
2. The Corrections Bill provides a new framework for the corrections system. It covers the administration of custodial sentences and remands, community-based sentences, home detention and parole.
3. This Bill repeals the Penal Institutions Act 1954 and its associated regulations. However, some of the provisions of the Penal Institutions Act and regulations are carried forward into the Bill. A number of the provisions in the regulations carried forward into the Bill, such as those setting out the minimum entitlements of prisoners, have human rights implications.
4. We have concluded that this Bill appears to achieve overall consistency with the Bill of Rights Act. We would, however, draw your attention to a number of the provisions of the Bill that appear to give rise to prima facie issues under the following sections of the Bill of Rights Act:
   • section 9 (the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment)
   • section 17 (the right to freedom of association)
   • section 21 (the right to be secure from unreasonable search and seizure)
   • section 22 (the right to be free from arbitrary arrest and detention)
   • section 23(5) (everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person); and
   • section 27(1) (the right to the observance of the principles of natural justice)

Section 9 and Section 23(5)

5. We consider that provisions in the Bill (in particular, those that provide officers and staff members with the power to use force, including the use of non lethal weapons on prisoners passively resisting a lawful order, and those concerning the restraint of prisoners (clauses 84, 86 and 88)) may appear to be prima facie inconsistent with sections 9 and 23(5) of the Bill of Rights Act.
6. However, we are of the view that the limits and restrictions placed on the exercise of these powers (clauses 84, 85, 86, 87, 88 and 89) provide adequate mechanisms to ensure that the powers are consistent with sections 9 and 23(5) of the Bill of Rights Act.
7. We also considered clause 69(3) of the Bill. Clause 69(3) provides that prisoners held in police jails may be denied 1 or more of the minimum entitlements provided for under clause 69 of the Bill having regard to the facilities available and resources at the police jail. A person sentenced to imprisonment can only be detained in a prison jail for a specified period of time (clauses 34(5)) or purpose (clause 64). We consider that clause 69(3) can be read consistently with sections 9 and 23(5) of the Bill of Rights Act and does not authorise prisoners detained in police jails to be subject to conditions that do not meet minimum health and safety requirements.

Section 21 Right to be secure against unreasonable search and seizure (in conjunction with sections 9 and 23(5))

8. We considered that a number and wide variety of provisions in the Bill raise issues of consistency with section 21 of the Bill of Rights. The provisions range from existing powers to enable officers and staff members with the power to conduct "rub down" and strip searches of prisoners and searches of their cells (clause 99), existing powers to use scanners and dogs in carrying out those searches (clauses 98 and 99), to existing powers to intercept mail and telephone conversations of prisoners (clauses 106 and 113) and powers to conduct drug and alcohol testing (clause 124).
9. The Bill also introduces new powers in association with the power to conduct searches. These new powers include the enhanced procedures relating to the use of illuminating and magnifying devices around – but not in - the anal and genital areas when performing a strip search (clause 91(4), the use of x-rays to facilitate searches (clause 99(9)), and the power to search visitors and staff (clauses 100, 101, and 102).
10. We have previously considered the issue of the enhanced procedures surrounding the use of illuminating and magnifying devices in association with searches of the anal and genital areas. We advised you on 15 February 2002 as follows:

Firstly, we consider that the requirement for inmates to "squat with their buttocks adjacent to their heels" and allow Corrections officers to visually inspect their anal and genital areas, with the option of illuminating and magnifying devices, to be inherently degrading and an affront to the dignity of inmates. We therefore consider that the exercise of such powers appears to be unreasonable in terms of sections 9, 21, and 23(5) of the Bill of Rights Act.

In stating this, we are mindful of recent statements by the Court of Appeal comments in R v Allison CA 387/01 26 November 2001 where the Court affirmed, at paras 22 – 23 of the judgment, the common law principles that a prison inmate retains all rights and privileges save for those that are inconsistent with the prison regime. The Court endorsed the views of the House of Lords expressed in R (on the application of Daly) v Secretary of State for the Home Department [2001] HRLR 1103. The House of Lords held, at 1114, that there was a presumption that there should be "the minimum intrusion into the rights of prisoners consistent with the need to maintain security, order and discipline in prisons."

11. We considered at that time that there was insufficient justification for the introduction of these enhanced procedures. However, in the course of the development of this Bill we have had the opportunity to work further with officials from the Department of Corrections to develop procedures that would limit or restrict the exercise of these powers. These procedures would still enable the objective of restricting the amount of drugs entering prisons to be met. These procedures, in addition to the other restrictions on the exercise of the search powers, mean that an officer can only conduct a strip search using these enhanced powers:
    • if he or she has reasonable grounds for believing that the prisoner has an unauthorised item in his or her possession (clause 99(3)(a))
    • if the officer has prior approval of his or her manager before conducting such a search (clause 99(3)(b))
    • and if the use of the procedures is necessary for the purposes of detecting the unauthorised item (clause 99(5)).
12. We are of the view that all the search and seizure powers conferred on officers and staff members in the Bill are reasonable for the purposes of section 21. In coming to this conclusion we have taken into account the Bill’s purpose, and the limits and restrictions that constrain those powers (in addition to the clauses set out in para 5 above, which prescribe the limits of the exercise of the power, see clauses 94, 95, 104, 109, 110, 114 –122, and 125 –127). We are also mindful of the robust procedures that the Bill puts in place to enable prisoners to make a complaint about the treatment that they have received (Part 2 subpart 6 of the Bill).

Section 17 Right to freedom of association

13. We have considered those provisions in the Bill that provide prison managers with the power to segregate prisoners (clauses 57 –59) and the power of the chief executive and inspector of corrections to direct certain prisoners to be transferred to other facilities (clauses 52) for consistency with the right to freedom of association.
14. We are of the view that the limits placed on the exercise of the powers to segregate and transfer prisoners and the rights afforded prisoners means that the limits on the right to freedom of association are justifiable in terms of section 5 of the Bill of Rights Act.

Section 22 Right to be free from arbitrary arrest or detention

15. We have considered the provisions in the Bill that relate to the powers of Corrections officers to detain persons in a prison (other than prisoners) on the grounds that they have reasonable grounds to believe that that person is in possession of a controlled drug within the meaning of the Misuse of Drugs Act 1975 (clause 103) for consistency with the right to be free from arbitrary arrest or detention (section 22 of the Bill of Rights Act).
16. This clause has been inserted into the Bill as a result of a Court of Appeal decision and a subsequent decision by Cabinet to amend the Bill to negate the effect of that decision, SDC Min (02) 8/13, confirmed by CAB Min (02) 34/6.
17. The Court of Appeal in R v Ihaka (CA 71/02, 17 June 2002) held that a Corrections officer was a constable for the purposes of the Misuse of Drugs Act 1975, and was authorised to conduct a strip search of a visitor for the purposes of that Act. However, the Court of Appeal held that a Corrections officer was not authorised to detain a visitor until such time as a police officer was available to conduct a strip-search. Cabinet has subsequently decided to remove the power that Corrections officers have to strip search persons other than prisoners under the Misuse of Drugs Act (clause 23(3)). Corrections officers would also be authorised to detain persons to enable a police officer to conduct a search.
18. We consider that the power in Clause 103 authorising a Corrections officer to detain persons other than prisoners for the purposes of enabling a police officer to conduct a strip-search is reasonable and therefore appears to be consistent with section 22 of the Bill of Rights Act. We note, in reaching this conclusion that a person detained under this provision must be released if the Corrections officer is made aware that a police officer is not able to conduct the search within the specified time limit of 4 hours or does not conduct the search within that period (Clauses 103(3) and 103(4) refer).

Section 27 Right to the observance of the principles of natural justice

19. We have considered those provisions in the Bill that regulate the procedures to be adopted and the powers to be exercised by hearing adjudicators and Visiting Justices when conducting hearings of complaints relating to offences against discipline and when imposing a penalty for such offences (clauses 132 to 139) for consistency with the right to the observance of the principles of natural justice (section 27(1) of the Bill of Rights Act).
20. In particular, we examined clause 134(2), which sets out the circumstances in which a prisoner may be granted permission to be represented at the hearing of a charge alleging an offence against discipline. The Court of Appeal in Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 held that natural justice might require legal representation of a prisoner in a disciplinary hearing in situations where the prisoner was unable to adequately represent him or herself. These situations may be "if the [prisoner] is very young or under a disability [or] if the matter, though minor, is of unusual complexity." Even though the ability to obtain legal representation is to remain the exception rather than the rule, in our view clause 134(2) can be read consistently with 27 of the Bill of Rights Act. The criteria in the Bill to be used to determine whether a prisoner should be legally represented closely follow the Court of Appeal’s decision.
21. We also considered clause 134(3) of the Bill, which provides that whenever a prisoner is granted legal representation the hearing adjudicator must refer the prisoner’s case to a Visiting Justice for hearing and determination. Clause 134(4) appears to be problematic since a Visiting Justice may impose a higher penalty on a prisoner found to have committed an offence than a hearing adjudicator; a prisoner may therefore inadvertently expose him or herself to higher penalties by seeking legal representation. We are of the view, nonetheless, that this provision appears to be consistent with section 27(1) of the Bill of Rights Act.
22. In forming this view, we note that clause 136(5) limits the range of penalties that a Visiting Judge may impose when a case is referred to the Visiting Justice in this way. The only exception being when the conduct that constitutes the offence is such that, in the opinion of the Visiting Judge, it warrants a higher penalty than can be imposed by the hearing adjudicator. This exception appears to cover those cases where an adjudicator would normally refer a case to a visiting justice as an offence that warranted a higher penalty. Therefore, we consider that in practice it would not expose a prisoner to a higher penalty merely because that prisoner chose to be represented by counsel.
23. In summary, we consider that the provisions regulating the hearing and determination of disciplinary offences appear to be consistent with section 27(1) of the Bill of Rights Act.

Conclusion

24. We consider that the provisions in the Bill appear to be consistent with the rights and freedoms contained in the Bill of Rights Act.
25. In accordance with your instructions, we attach a copy of this opinion for referral to the Minister of Justice. A copy is also attached for referral to the Minister of Corrections if you agree.

Cc: Minister of Justice
Minister of Corrections
Copy for your information

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Corrections Bill 2002. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.

Appendix One: Approach to sections 9, 18, 21, 23(5) and 27(1) of the Bill of Rights Act.

The right not to be subjected to torture or to cruel, degrading punishment

1. Almost anything can be treatment for the purposes of section 9 where the state has actively interacted with an individual in a disciplinary context. The caselaw in New Zealand to date, while focusing on the threshold of disproportionality (etc) indicates that the courts will accept that most conduct will be treatment for the purposes of section 9.
2. In order for the treatment or punishment to be cruel or disproportionately severe, the courts have consistently held that the punishment or treatment must be so excessive as to outrage standards of decency given to the nature of the treatment or punishment and the context within which it is applied R v Smith [1987] 1 SCR 1045, pp1072, 1088-1089); R v Leitch [1998] 1 NZLR 420; (1997) 15 CRNZ 321 (CA), at p 431.
3. The notion that treatment or punishment should not be degrading is concerned with the effect that the treatment or punishment is likely to have on an individual. On "degrading" the European Court of Human Rights has held [1]:

Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking the individual's moral and physical resistance, it may be characterised as degrading.

4. Even though all forms of treatment or punishment are likely to have an element of degradation it is clear that the level of degradation must exceed society's expectations of what is appropriate in a particular context. One of the leading UK cases on "degrading" is the case of Tyrer v UK (1978-79) 2 EHRR. The European Court in Tyrer held that when considering whether a form of treatment or punishment is degrading, consideration will be given to a number of factors including the nature of the act, the context within which it is delivered, the manner of its execution, and the impact it has on the victim.

Section 17 The right to freedom of association

5. Although the New Zealand courts have not fully determined the issue, the Ministry's view is that the right to freely associate includes the right not to associate as well as the right to associate.
6. The Ministry's position on this issue is consistent with the courts' approach to the freedom of expression - that the right to freedom of expression includes the right not to make any statement.

Section 21 Right to be secure against unreasonable search and seizure

7. Section 21 of the Bill of Rights Act provides for the right to be secure against unreasonable search or seizure. In assessing the substantive "reasonableness" of any power of search or seizure, the Ministry is of the view that section 5 of the Bill of Rights Act (justified limitations) is of limited application. The justification for any limitation of the right provided in section 21 is whether the search is "reasonable" in the circumstances.
8. However, a number of the considerations which are normally relevant in the context of the section 5 inquiry will also be material in assessing the "reasonableness" of a power of search or seizure. "Reasonable" in the context of section 21 essentially means that the power to search or seize is substantively justified in the context of balancing legitimate state interest against the expectations of privacy.

Section 22 Right to be free from arbitrary arrest or detention

9. Not every deprivation of liberty involves a detention for the purposes of section 22 of the Bill of Rights Act. The detention must be substantial - that is, more than a "temporary check, hindrance, or intrusion on the citizen's liberty[2]" and include a certain threshold of compulsion.
10. The Courts in New Zealand and elsewhere have held that consideration of whether an arrest or form of detention is arbitrary or not involves more than a consideration as to whether the arrest or detention was lawful; it "must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability" Van Alphen v The Netherlands[3].
11. Any discretionary power to detain a person also needs to be accompanied by appropriate criteria governing its exercise so that the decision can be made with reference to an adequate determining principle and in accordance with proper procedure[s]44 Neilsen v A-G 3/5/01, CA101/00 . The detention should also not continue beyond the period for which the State can provide appropriate justification.

Section 23(5) Everyone deprived of liberty shall be treated with humanity...

12. Section 23(5) applies to the deprivation of liberty. The White Paper, para 10.102, notes that the provision clearly has relevance to standards of police detention and prison administration and other forms of detention authorised by the state. As the White Paper also notes there is an overlap between it and section 9. The UNHRC has noted that persons deprived of liberty should not be:

...subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment[5].

Section 27(1) Right to the observance of the principles of natural justice

13. The observance of natural justice has traditionally required compliance with two broad principles. The first principle relates to the right to hear the other side and the second to the freedom from bias or partiality on the part of the decision-maker. The right in section 27(1) is considered to be a flexible doctrine, the scope and content of which adapts to particular situations. The requirements of natural justice depend on a number of factors, including the circumstances of the case, the rules under which the tribunal or public authority is acting, the matter that is being dealt with, the sanctions that could be imposed and the nature of the inquiry or determination.
    

[1] Diane Pretty (Application No. 2346/02) para 52
[2] Police v. Smith and Herewini [1993] NZCA 585; [1994] 2 NZLR 306, 316; [1993] NZCA 585; (1993) 11 CRNZ 78, 88; per Richardson J
[3] UN Human Rights Committee 305/88[s]
[5] General Comment 21[44], adopted on 3/04/1992