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Corrections Administration (Effectiveness and Efficiency) Bill / Administration of Community Sentences and Orders Bill (Consistent) (Section 21, 22, s26(2)) [2011] NZBORARp 35 (9 September 2011)

Last Updated: 29 April 2019

Corrections Administration (Effectiveness and Efficiency) Bill

Note - the Corrections Administration (Effectiveness and Efficiency) Bill was divided into the Corrections Amendment Bill and the Administration of Community Sentences and Orders Bill prior to introduction.

9 September 2011

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

CORRECTIONS ADMINISTRATION (EFFECTIVENESS AND EFFICIENCY) BILL

1. We have considered the Corrections Administration (Effectiveness and Efficiency) Bill (PCO 14746/9.2) (‘the Bill’) for consistency with the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill is scheduled to be considered by Cabinet Domestic Policy Committee at its meeting on Wednesday, 14 September 2011.
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered possible inconsistencies with the right to be secure against unreasonable search and seizure (s 21), the right to liberty (s 22) and the right to be free from double jeopardy (s26(2)).
   

PURPOSE OF THE BILL

3. The Bill proposes amendments to improve the overall operation of the corrections system and remove provisions which have been identified as barriers to effectiveness and efficiency in the management of offenders in prison and in the community.
4. The Bill amends the Bail Act 2000, Corrections Act 2004, Courts Security Act 1999, Parole Act 2002, and Sentencing Act 2002.
   

POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT

5. We have identified some amendments that appear to limit rights and freedoms affirmed by the Bill of Rights Act. However, where a provision appears to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a “reasonable limit” that is “justifiable” in terms of s 5 of that Act. Following the guidance of the New Zealand Supreme Court decision of Hansen v R, the s 5 inquiry may be summarised as: [1]
   
   • (a) does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
   • (b) If so, then:
     
     1. is the limit rationally connected with the objective?
     2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
   3. is the limit in due proportion to the importance of the objective?

Section 21 Search and Seizure

6. Section 21 of the Bill of Rights Act provides the right to be secure against unreasonable search and seizure. There are two limbs to the s 21 right. First, s 21 is applicable only in respect of those activities that constitute a "search or seizure". Second, where certain actions do constitute a search and seizure, s 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.
7. Reasonableness will depend upon both the “subject matter” and the unique combination of “time, place and circumstance” of a particular case. [2] Overall, this involves the balancing of values underlying s 21 and a weighing of all the relevant values and public interests involved, and the strength of the individual concerns for privacy against the strength of society’s need to detect and investigate crime. [3] A search or seizure which is unreasonable in terms of s 21 cannot be justified in terms of s 5 of the Bill of Rights Act. [4]
8. Issues in the Bill that may give rise to an unreasonable search and seizure are the:
   

• testing of prisoners suspected of using drugs or alcohol
• procedures around strip searching
• removal of Manager’s approval for “reasonable grounds” strip searches, and
• mandatory strip searches.
  

Testing prisoners suspected of using drugs or alcohol

• A requirement to supply a bodily sample, and the analysis of that sample, constitutes a search. [5] Under s 124 of the Corrections Act, there are four situations where prisoners may be required to submit to alcohol or drug testing, this includes where the prison manager “believes” on reasonable grounds that a prisoner has committed an offence relating to drugs and alcohol (s 124(2)(a)). Clause 39 amends s 124(2)(a) so that a prison manager need only “suspect” on reasonable grounds that a prisoner has committed an offence relating to drugs and alcohol.
  
• The current test is limited in its effectiveness as it is a high threshold. For example, intelligence that a prisoner has been given drugs may not reach this threshold. The Department of Corrections considers that the amendment will play an important role in the deterrence and detection of drug and alcohol use by prisoners.
  
• The more flexible test in cl 39 could potentially generate more drug and alcohol tests being performed on prisoners. However, the privacy interests of the prisoner need to be balanced against the need to detect and investigate crime for the safety of both prisoners and staff.

Furthermore, although the test in cl 39 is a lower threshold, the manager’s suspicion is still required to be based on “reasonable grounds”. The amendment therefore appears to be reasonable and so is consistent with s 21 of the Bill of Rights Act.

Procedures for strip searching

• The Corrections Act currently provides for two types of strip searching and specifies different procedures for performing each:

• “routine searches” on first admission to a prison and in a range of other circumstances set out in the Act, such as when a prisoner leaves or returns to prison, and
• “reasonable grounds searches” performed if the prisoner is believed to be concealing an unauthorised item, where prisoners can be required to adopt a squatting position and visual magnifying devices may be used to illuminate or magnify the mouth, nose, ears, and anal and genital areas.

• Clause 31 amends s 90(2)(f) to allow the person conducting a strip search to require the person being searched to, with his or her legs spread apart, bend his or her knees until his or her buttocks are adjacent to his or her heels. It also repeals s 90(3) and (4) and inserts a new subsection which allows “reasonable ground searches” to be applied to all strip searches. Conducting “reasonable grounds searches” increases the intrusive nature of the search and could be seen to be especially demeaning for prisoners. However it does not authorise the insertion of any instrument, device or thing into any orifice.
• A physical search or seizure of the person is a restraint on freedom and an affront to human dignity. [6] Strip searches are inherently degrading and can be considered an affront to the person being searched, particularly when devices or instruments are used to illuminate or magnify areas. The Court of Appeal has said that the “touchstone” of s 21 is the protection of reasonable expectations of privacy. [7] It follows that the greater the degree of intrusiveness, the greater the justification required and, further, the greater need for safeguards to ensure the justification is present. [8]
  
• The Department advised that having two different procedures makes the legislation more complex to administer and therefore increases the risk of unlawful searches. There also appears to be lack of clarity with regard to the degree of knee bend that may be required of prisoners during a “routine search”. This search is rendered less effective due to the inability to use devices such as lights and mirrors to assist visual inspection. Replacing the “routine” search with a requirement to squat (buttocks next to heels) is considered to be more comfortable for the prisoner as well as more effective. While the use of instruments and devices such as lights and mirrors is intrusive, it is considered preferable, both for the prisoner and the staff member, for these to be used as it reduces the need for close, unaided visual inspection.
  
• While strip searches are an intrusion on privacy, the reasonable expectation of privacy of a prisoner is different from that of a person outside prison. The purpose of all strip searches is to locate unauthorised items. Searches of various kinds in prisons are necessary for the safety of prisoners and staff and for good order of the institution and the control of contraband within the prison setting. We also take into account that the Act requires that all searches be carried out with decency and sensitivity, and in a manner that affords to the person being searched the greatest degree of privacy and dignity consistent with the purpose of the search.
  
• As a result, we consider the search to be reasonable in terms of s 21 of the Bill of Rights Act.

Removal of Manager’s approval for “reasonable grounds” strip searches

• Clause 32 amends s 98 by removing the requirement for an officer to obtain the manager’s approval to conduct a strip search of a prisoner who the officer believes on reasonable grounds possesses an unauthorised item (new s 98(3)(a)). It also repeals s 98(4) which gives an exception to the requirement for prior approval if the delay involved in obtaining that approval would endanger the health or safety of any person or prejudice the maintenance of security at the prison.
  
• As noted above “reasonable ground searches” are intrusive and inherently degrading. This amendment removes an important safeguard and could increase the risk of unlawful searches.
  
• The Department advised that under the current provisions the prison officer has to make two judgements: firstly whether a strip search is warranted on statutory grounds; and secondly, whether the requirement to get the manager’s approval will cause undue delay and so fits within the exception in s 98(4). The Department notes that at the outset an officer may not know whether any potential delay will meet the high threshold in s 98(4). These provisions introduce uncertainty and delays into the decision-making process and give the prisoner an opportunity to dispose of concealed items. There needs to be close supervision by officers to prevent disposal of items. These delays could also create anxieties for prisoners. In situations where a prisoner is believed to be concealing contraband, such as weapons or drugs, it is generally desirable to conduct a strip search as soon as possible.
  
• We consider that for these reasons the search is reasonable under s 21, especially as the legislation will continue to require the details of the strip searches to be promptly reported to the prison manager (s 102(2)(a)), who must ensure that a record of that report is made and kept (s 102(5)).
  

Mandatory strip searching

• The Act provides for mandatory strip searches in three situations. Clause 32 amends s 98(7) to require a prisoner to undergo a strip search on returning to the prison from an escorted absence in the control of an officer unless the prisoner is returning from work. This will further limit prisoners’ right not to be subject to unreasonable search and seizure.
• The Department advised that current legislation does not cover the highest risk situations for the entry of contraband when a prisoner returns from Court or from other escorted outings. In such situations, the risk is sufficiently great that the prisoner will be exposed to contraband material and could introduce this into prison.
  
• As a result, we consider that, bearing in mind the limits and restrictions that constrain these powers (in particular, s 94 (restrictions on searches) and the exclusion of temporary releases) and the complaints procedure set out in subpart 6 of the Act, the search is reasonable under s 21.

Section 22 Liberty of a person

Extending the use of a restraint beyond 24 hours

• Clause 11 repeals s 19(4)(f) which sets out the power of Visiting Justices to extend the use of mechanical restraints for longer than 24 hours. New s 87(5) gives this power to prison managers.
  
• Extending the application of a mechanical restraint beyond 24 hours is a serious measure. There is a risk when removing external oversight in situations where prisoners are most vulnerable. However, it is proposed that the prison manager can only extend the use of a mechanical restraint in order to protect the prisoner from self-harm and only if it is considered necessary in the opinion of a medical officer. This authorisation must be set out in writing and specify the type(s) of restraint to be used and the length of time during which the prisoner may be kept under restraint.
  
• As the rationale for extending the restraint is essentially to preserve the prisoner’s health, a medical officer is best placed to advise on whether this is the most appropriate course of action in the circumstances. While it could be argued that medical officers are less independent than the Visiting Justices (as they are employed by the Department) they are still constrained by medical legal ethics, which in turn provide a sufficient level of independence. Furthermore, in terms of safeguards, the prison manager will have to make decisions which are consistent with the Bill of Rights Act.
  

Section 26(2) Double jeopardy

• Clause 91 of the Bill amends s 107L of the Parole Act 2002 to make changes to the extended supervision regime where an offender is released early under s 52 (because their statutory release date falls between 15 December and 5 January), The extended supervision

conditions will come into force on the offender’s actual release date but time does not begin to run on the order until the offender’s statutory release date. The same applies in cl 92 which amends s 107P regarding the reactivation of the extended supervision conditions and any special conditions.

• In 2003 and 2009, the extended supervision regime was found to place an unjustified limit on the right to be free from double jeopardy affirmed in s 26(2) of the Bill of Rights Act, and was brought to the attention of the House of Representatives under s7 of that Act. In this case, we have concluded that cls 91 and 92 are minor adjustments to the extended supervision regime and so do not place a further limitation on the right.
  

CONCLUSION

• For the reasons given above, we have concluded that the Bill appears to be consistent with the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Footnotes:

1. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen v R [2007] NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v Chaulk [1990] 3 SCR 1303. See for example, Hansen, at [42] per Elias CJ; [64] and [79] per Blanchard J; [103],

[104] and [120]-[138] per Tipping J; [185] and [217] per McGrath J; and [272] per Anderson J.

2. Rishworth p435, see also R v Grayson and Taylor [1997] 1 NZLR 399 at 405 (CA)
3. The Court of Appeal in R v Jefferies [1999] NZCA 119; [1999] 17 CRNZ 128. R v Grayson and Taylor
4. Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774, [33]
5. Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774, [18]

6. R v Jefferies [1993] NZCA 401; [1994] 1 NZLR 290, 300 [1993] NZCA 401; (1993) 1 HRNZ 478, 490 (CA)

7. R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [48] and [236]
8. For example, R v Williams [2007] NZCA 52; [2007] 3 NZLR 207, [113]
   

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 Administration (Effectiveness and Efficiency) Bill. 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.