18 September 2003

Corrections Bill axes Maori participation in prisons

A leading lawyer says the Government's Corrections Bill will significantly reduce Maori participation in the areas of prison management and operations.

The attached opinion from Jack Hodder of Chapman Tripp says that handing an exclusive monopoly to the public prison service to manage all prisons "will leave only a peripheral role for Maori service providers in relation to prison management and operations".

The opinion was commissioned by Iwi Whanui O Tamaki Makaurau, an advisory board representing six northern iwi in a formal partnership with Auckland Central Remand Prison (ACRP), New Zealand's only privately managed prison.

"The Corrections Bill, in its current form would defeat Maori aspirations for a future role as managers of all or part of a prison," said Iwi Whanui Chair Te Warena Taua.

"Through removing any choice, the Bill will radically cut the ability of Maori to be involved in core decisions concerning how our prisons are operated and managed."

Mr Taua said with Maori making up over half of the prison population it was critical that Maori were fully involved in the decisions on how best to manage and rehabilitate their people.

"Under the ACRP contract with a private provider we have seen more progress and innovation in a prison than we have seen in decades from the public prison service."

Mr Taua said Maori were angry and disappointed that the Government had failed to consult over plans to prevent any private management of prisons, despite the negative impact the plans would have on Maori.

"Maori were involved in selecting the current management provider and have formed a partnership with the prison management in which Maori are involved in all areas of the prison, including the development of all programmes and processes.

"This level of involvement and partnership will not be possible again under this Bill," he said.

"What has happened at ACRP is the best example yet of Maori being allowed to develop new solutions to old problems facing our people. We cannot understand why some members of this Government are so desperate to take this away."

Mr Taua said preventing the renewal of the ACRP contract, and prohibiting any further like it, was putting ideology ahead of the best interests of inmates and Maori.

"The Corrections Bill, in its current form, is contrary to all the evidence and will significantly set back the much-needed drive to reform our prison system," said Mr Taua.

"The Bill denies the right for Maori to participate in critical decisions regarding the management of our prisons, and the rehabilitation of our people inside them.

"We urge the Government and its supporters to drop these clauses in the interests of justice for Maori and long overdue reform of our failing prison system," he said.

ends

memorandum
15 September 2003

To: Te Warena Taua, Iwi Whanui O Tamaki Makaurau
From: Jack Hodder, Chapman Tripp, Wellington

CORRECTIONS BILL — PRIVATE PRISON MANAGEMENT ABOLITION — CONSTRAINTS ON MAORI PARTICIPATION IN PRISON MANAGEMENT

1 As requested, this note explains the constraints on future Maori participation in managing prisons in the light of the current provisions of the Corrections Bill. The Bill would abolish private prison management (subject only to permitting the expiry of the current term of the Auckland Central Remand Prison contract). As will be seen from what follows, in my opinion, if enacted, the Bill would leave only a peripheral role for Maori service providers in relation to prison management and operations.

“Management”

2 A starting point is the concept of “management”, having regard to clause 186 of the Bill which provides that “No prison may be managed by any person except … the Crown”.

3 In this context, “managed” and related words have their ordinary dictionary meaning. From the Concise Oxford Dictionary, the flavour of the concept of management is explained by reference to language such as organise, regulate, be in charge of, professionally administrate, control, and executive control and authority.

4 In other words, the concept of “manage” connotes the exercise of power and autonomy, albeit usually within prescribed standards. Thus, for example, the current contract for management of the ACRP prescribes quite detailed standards with which the contract must comply, but the operational and day-to-day control — and responsibility — lies with the contractor. In practical terms, this includes giving directions to employees, establishing administrative regimes, and generally shaping the “culture” of an institution by the contractor. As you will know, in relation to the ACRP, that shaping has involved a substantial role for iwi.

5 Under the existing section 4A of the Penal Institutions Act 1954, scope exists for a Maori entity or enterprise to contract to exercise real management responsibility in relation to all or part of an existing or a new prison. Under the Bill this does not exist.

The Bill requires management by the Corrections Department

6 Part 2, Subpart I of the Bill (Corrections System: statutory roles and responsibilities) is explicit that management of prisons will be exercised by the Crown through the Chief Executive of the Corrections Department and through Prison Managers (who will be employed by the Chief Executive) under the State Sector Act 1988. Both the Bill (for example, in clauses 10 and 13), and the 1988 Act, provide strict limits on the delegation of the power conferred on a Chief Executive and Prison Managers. In essence, those powers that may be delegated can only be delegated to state sector employees.

7 Apart from the limited saving for the ACRP contract, the only contracts for services which are explicitly recognised and permitted under the Bill are contracts for escort services and/or courtroom custodial services (under clause 160-168). These are subject to substantial regulatory requirements, and are clearly far removed from the mainstream of management of prisons and prison inmates.

Ad hoc Maori participation

8 It is of course the case that the Corrections Department will be entitled (and likely) to contract with outside organisations, including Maori entities, for specific services on terms specified by the Department. It can be expected that these would include contracts to assist the Department in meeting its obligations to provide educational, spiritual and cultural facilities for inmates (as required under clauses 79-82 of the Bill). However, while such services would doubtless be of importance, they are far removed in scope, nature and authority from the concept of non-State prison “management” which is extinguished by the Bill.

9 For completeness, I note that the clause 6 “principle” of the Bill does not include express reference to consultation with Maori interests. Nevertheless, in accordance with what has become standard procedure for central government agencies, it can be expected that both the Chief Executive (on national issues) and Prison Managers (on local issues) will consult with iwi and other Maori entities, as they consider appropriate, in the light of the Crown’s appreciation of the principles of the Treaty of Waitangi. Of course “consultation” does not mean a right of veto, let alone management, and essentially involves a requirement for good faith discussions.

Conclusion

10 I understand your enquiry to be a reflection of two propositions. First, that iwi and other Maori entities aspire to have the opportunity to develop a meaningful role in prison management; and, second, there have been suggestions from some quarters that the Bill’s provisions do not preclude such developments. For the reasons I have summarised above, in the absence of substantial changes to the current provisions of the Bill, I am unable to agree with proponents of the second proposition, and thus unable to see substantial scope for developments in relation to the first.

11 I am happy to elaborate further on these matters, if that would be helpful.

J E Hodder

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