On Newshub Nation: Lisa Owen interviews Justice Minister Andrew Little

Lisa Owen: With the prison muster now at record levels, New Zealand jails are bursting at the seams. Labour’s pledged to reduce inmate numbers by 30% over the next 15 years, but right now there just isn’t enough space. I asked Justice Minister Andrew Little if he believes the Government should go ahead with a proposed billion-dollar extension to Waikeria Prison.

Andrew Little: We’re going to have to look closely at it. There’s no question that the prison system is under huge pressure at the moment, but then, we’ve had a massive increase in the number of inmates just in the last three or four years alone – about 3000 now, remand prisoners – and that additional number of prisoners is going up all the time. We are going to have to have a close look at it. The other problem we’ve got is that Waikeria Prison is 100-odd years old. It is, frankly, unfit for purpose. We’ve got a number of other prisons around the country that are coming to the end of their natural life, if you could call it that, so we’ve got a few issues to look at before we make that decision.

So are you suggesting that maybe you could bowl the old one, build the new one?

There’s no question the existing Waikeria Prison was built for a different age and a different time. I went down there just before Christmas at the suggestion of my colleague Kelvin Davis, because he was stunned when he saw it, and what I saw, just frankly, horrified me. You think about there are people going in there – sure, they’ve committed crimes, they’ve offended, they’ve got to atone for what they’ve done, but then you ask yourself, is this a place where somebody can go from being bad to being good and feeling good about themselves? That is not the place you would go to.

Okay, so put that to one side. Do we need more beds? Would anything you build be bigger?

That’s a discussion that the Cabinet is going to have to have when Kelvin Davis reports to them, and he’s going to have to look not just at Waikeria, but at other prisons that are coming up for rebuild.

What’s your gut instinct, though? You know the numbers. You’ve been looking at the numbers, and you know projections are for 2026 - 12,000 prisoners we’re talking here. Even with 1500 extra beds, you’re going to be pushing it in terms of capacity. What’s your gut feeling? Do we need it?

We are. You’re absolutely right; we are under a huge pressure right now in the short term. But we have this target that we are very serious about, which is reducing the prison population by 30% over 15 years. And we’ve got a number of things we’re going to have to do to get that underway, but we’ve got this immediate pressure now. Cabinet is going to have to juggle all those issues and come up with a decision, but that is another few weeks away yet.

What’s your feeling? You’re avoiding the question. What’s your feeling on it? Do you want to go ahead with it?

But it’s not about my feeling on it; it’s about the information that Cabinet will have in front of it to make a decision. Kelvin Davis has the job of assembling that information. We’re all involved in making sure that a good decision is made, not just about the future of Waikeria, but how we fulfil the obligation we’ve set ourselves, which is to reduce that prison population.

Okay, so you’ve mentioned the target there – the aim is a 30% reduction over 15 years. What are your shorter-term goals? How many in your first term? How many in the first year are you going to drop it by?

We haven’t set those short-term goals because it’s impossible to do so. What you have to do is look at all the things that are driving that prison population. You’ve got to ask the overarching question – after 30 years of criminal justice reform that has led to more people being criminalised, more people being sentenced to prison, and people serving longer sentences, is that actually doing us any good? And when you look at it, violent crime is going up, victimisation rates have been going up in the last three or four years; actually, it’s not actually making much difference. And the reason might be quite simple, and that is that a large chunk of the people going into prison have got a whole bunch of other problems with them. If we actually fix those problems, we’ll stop them going to prison in the first place. So it’s about looking at the problems, looking at the real solutions to those problems to work on what is a good criminal justice system.

You have indicated that we need a bit of an overhaul. So what would that look like? Briefly, can you sum it up for us? What would it look like?

It’s going to be good interventions as early as possible. And we’re doing some good stuff now. Later this morning, I’m opening the Rangatahi Court in Whangarei. And those who do go to prison – making sure that when they get there, if they’ve got mental health problems, addiction, they’ve got literacy, numeracy problems, as we do in small ways at the moment, we actually make a systemic response; we fix those problems. For the real hard-arses, frankly, actually, they will be going to prison, and we need a prison system that’s going to be there to keep the public safe. But for that large chunk of the prison population whose criminal offending is driven by a whole bunch of other causes, we want to address those causes and give them a chance to go back and lead a productive life.

Okay, we’ve talked about bail before. We both know that the tightening up of the bail laws has been one of the biggest drivers of this burgeoning prison population. Labour was among those who voted to toughen up those laws. Were you wrong, and do you need to walk it back?

The advice from the government at the time was that the tightening of those bail laws would lead to an additional few hundred people being held on remand in prison. It’s now up to 3000 people being held on remand in our prison system; it’s way above what anybody predicted. And what it looks like is that whatever was intended for that bail law, actually something unintended is happening, and we are going to have to have a look at it.

So accepting that, do you then have to take away this onus on the accused person to prove that they’re not a risk? Is that what you would look at?

What I said is, and I think people like Kelvin and Stuart Nash who are working— we are working as a team on all of this, we are going to have to have a look at this, because what is happening and the consequences of that change in the bail laws is we’re getting way more people banged up in prison –and they haven’t even been convicted yet; they’re there on remand – than was intended when that bail law was first introduced. Now, I have to get advice from officials and experts on that. We haven’t got that advice. But that is an area we are clearly going to have to have a look at.

So you are looking at softening bail laws?

Well, we’re looking at a whole range of things that we know have driven the increase in the prison population. Bail laws is one of them. The management of parole, what we’re doing with prisoners while they’re in prison – all those sorts of things will come into play.

Okay, let’s change tack a bit here and talk about another issue. You have ordered a review into the way the Human Rights Commission handled a sexual harassment claim against one of its own. Let’s just recap it for people. So this was the chief financial officer, who’s still employed there – allegedly sexually harassed an unpaid intern. She was visiting from America. She apparently wasn’t represented at mediation. And his punishment was an apology and some counselling, and he sent out an office-wide email where he identified the victim. Yet the Chief Human Rights Commissioner, David Rutherford, seems to think they did everything right. Is he wrong?

They got an independent barrister who said that the Human Rights Commission had complied with their own procedures, and the reason why I’ve asked for a review is because if those are their procedures, then there’s something hugely flawed about their procedures. And it disturbs me because the Human Rights Commission is our principal human rights body. It’s the one that we all look to to say, “You lead the way. You show us how to do these things properly,” and every other employer in the country, so I need to be sure – and I think the public of New Zealand needs to know – that the Human Rights Commission, when it comes to things like sexual harassment grievance complaints, actually gets it right and has world’s best practice.

Do you think there’s a cultural problem within the Commission? Because this is not the first internal complaint that they have had.

It’s the second sexual harassment complaint in a reasonably short period of time, and then there was a third one a few years ago. A combination of that and also looking at the rules that they applied and knowing that there appears to be a flaw in those rules suggests to me that there might be a cultural problem, and that’s why, in the terms of reference for the reviewer, Coral Shaw, I’ve put that issue in there.

Okay, well, culture comes from the top, and here’s the thing – if you can’t rely on the Chief Human Rights Commissioner, David Rutherford, to protect his own staff, how can he be trusted to protect all New Zealanders? Surely he needs to go.

That’s not an issue I’m looking at at the moment.

Why not?

Because, as Minister, I have a responsibility for the organisation. I’m concerned about the employed staff because they are state sector staff. I have to be very careful about how I go about this because we’ve signed up to a thing called the Paris Principles that requires our principal human rights body to be independent of the executive.

But you have the power to remove him.

His employment comes up for review, as indeed others’ do, so you look at all those sorts of things at the time. But right now my focus is the way the Commission managed an employment issue and left an unpaid intern, in my view, in a vulnerable position in a way that should never have happened.

Okay. I want to talk about another sensitive issue that you’re dealing with at the moment, which is abortion law reform. So Jacinda Ardern first raised this and said that it needs to be taken out of the Crimes Act. Do you agree with that?

Yes.

Okay. So what are you looking at changing?

We have a referral to the Law Commission that I’ll be making early next week that will focus on the way the law deals with abortion – so the fact that it appears in the Crimes Act, the fact that the Contraception, Sterilisation and Abortion Act requires a woman wanting this procedure to go through various hoops.

So are you going to change or want to change the approval process, where you have to get two doctors to sign off? Are you going to change that?

I’ve asked the Law Commission to look at the criminal aspects of it and the procedural aspects of it and to give advice to the government on what a modern approach to the abortion procedure might look like.

Okay. Will you allow medical abortions outside of a clinic?

That’s not an issue that I’ve personally considered, and we’ll see what the Law Commission says. But I want the Law Commission to look at and give us guidance on an abortion law that, frankly, fits the 21st century.

The thing is this will be a conscience vote, right, and Labour has some very – as do some of the other parties – socially conservative MPs. Is there enough support within your own party for this change?

Labour, at least, in the election, made a commitment to review the abortion law and to look at the criminalising aspects of it. We’re going to follow through on that commitment. We know that it’s a conscience issue, but I think is time for the work to be done. Our current law is more than 40 years old. I think New Zealand is entitled to see that the government does review old laws periodically. And knowing it’s a conscience issue, look, who knows which way it will fall? But we will get the work done.

How many of your MPs do you think don’t agree with this?

Look, I haven’t tried to do that calculation. I haven’t gone round and thought about it – and likewise with the whole of Parliament; there will be a variety of views across all the parties. But I think we owe it to New Zealand to get the work done, to get the Law Commission to do that work, to have a good public debate about it. And any legislation that arises out of it, we’ll put it in front of Parliament, and Parliament will exercise its vote on a conscience basis.

Thanks for joining us this morning, Minister. We appreciate your time.

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