See no evil

Written By: - Date published: 12:33 pm, March 14th, 2009 - 2 comments
Categories: prisons, privatisation, same old national - Tags:

I’ve been meaning to write something about the private prisons bill for a couple of days as it’s a recipe for barbarity. But I’ve decided there’s no way I could do a better job of it than I/S has at No Right Turn, so I’m just going to repeat his whole post here. (hopefully he won’t mind!) –

The government introduced its Corrections (Contract Management of Prisons) Amendment Bill, which would allow US-style private prisons, [on Thursday]. Mostly it’s what you’d expect – conditions of contracts, monitoring, transfer of information etc – and there’s been at least some effort to ensure the prisons must meet the same standards as Corrections. But I can’t help but notice a couple of absolutely shocking absences from new s199 (2):

(2) Every prison management contract must impose on the contractor, in relation to the management of the prison, a duty to comply with—

(a) the requirements of this Act, of any regulations made under this Act, and of any instructions or guidelines issued by the chief executive under section 196, in so far as those requirements are applicable to contract prisons; and

(b) the requirements of the New Zealand Bill of Rights Act 1990, as if the prison were a prison managed by the department; and

(c) all relevant international obligations and standards; and

(d) the requirements of sections 56(1) and (2) and 58(3) of the State Sector Act 1988 (which relate to personnel and equal employment policies), as if the contractor were the chief executive of a department within the meaning of that Act and as if those requirements applied, not only in respect of employees of a contractor, but in respect of all staff members of a contract prison.

What’s missing? Firstly, the Ombudsmen. They have an important role in the monitoring of prisons, just as they have an important role in monitoring everything else. But that stems from the Ombudsmen Act, not the Corrections Act, and is not recognised in the bill. The upshot is that prisoners dumped in private prisons will have less access to complaint mechanisms and independent oversight than those in the public system. Given the way the government’s preferred bidder systematically violates prisoner rights for fun and profit overseas, that is a serious mistake.

(I should note that the Ombudsmen’s jurisdiction to inspect prisons to prevent torture is preserved due to s162A of the Corrections Act – but their general jurisdiction to investigate any act or decision of any government department is not. And that matters. It was the Ombudsmen, remember, who excoriated Corrections for their general conditions of prisoner transport – conditions which led, among other things, to the death of a teenage prisoner. Private prisons will need that oversight, and those held there deserve to be protected just as much as those held in the public system).

The second obvious omission is of course the OIA. Currently, we can demand information from Corrections, and we can do that at all levels, down to and including a prison manager. But under this bill, we won’t be able to anymore; effectively National is using privatisation in an effort to contract out of its obligations under the OIA, in an area where public oversight is vitally necessary. And that’s not something we should stand for.

I’m also horrified by this clause (new s199B (2)):

For the purposes of determining the liability of the Crown or the contractor for any act or omission of a contractor or a contractor’s employees or agents, neither the contractor nor the contractor’s employees or agents are to be treated as agents of the Crown.

Despite the fact that that is in fact exactly what they are. But black can be white where Parliament decrees – particularly if it stops prisoners who have – e.g. been beaten and raped by poorly trained private prison thugs – from holding the government to account for their actions.

(It’s difficult to see this as anything other than an end run around the BORA; while obligations are imposed by contract, that’s a matter between Corrections and the prison. Meanwhile, as private parties rather than agents of the crown, the liability of private contractors under the BORA is reduced, while the government gets to wipe its hands of the whole matter. So they’re trying to contract out of that as well. It will be interesting to see whether the courts will stomach that, though…)

I loathe the idea of private prisons and sadism for profit; but this implementation of it simply stinks. It would remove private prisons from public scrutiny and from the jurisdiction of the Ombudsmen, and so dramatically weaken oversight. The effect would be to reduce accountability. And where prisons are concerned, that’s not something any civilised society can afford.

2 comments on “See no evil ”

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  1. Ianmac 1
    14 March 2009 at 1:01 pm

    Does this Act mean that no Minister will be able to be questioned in Parliament about the efficiency of a Private Prison, but will be still able to clobber the Corrections Department, for political purposes? To whom will the Privates be accountible apart from the financial side?

  2. Rex Widerstrom 2
    14 March 2009 at 6:14 pm

    Hopefully I/S will monitor this thread and respond, as I’d like to be able to pose these statements / questions to him over at NRT..,

    Private prisons are not bad places per se. That they are usually bad is due to politicians either intending that they be so, or inadvertently drafting legislation that makes them so. As I have said here before there is a privately run prison in Western Australia (a state not noted for its humanity, incidentally) which prisoners queue to transfer to and which Baroness Stern recently characterised as amongst the best managed she’d ever seen.

    If the empowering legislation and the contract are carefully drafted they can bring about greater accountability than is possible within a public service model (particularly one like NZ’s, in which CEOs are not accountable to their Minister and thus to the public (e.g. Barry Matthews)). Setting KPIs around prisoner welfare and withholding payment until those standards are met (as is done in WA) can bring about better conditions for prisoners. And being truly innovative – say, paying a private prison an ongoing fee for any inmate who doesn’t return (and is thus presumably rehabilitated) – can potentially change the entire ethos of corrections.

    So drawing attention to flaws in the empowering legislation is important – but not to torpedo the idea… to ensure that the potential advantages of private prisons are fully realised and the pitfalls, particularly of the US model, are avoided. So…

    Ombudsmen: Legislating to make a private corporation answerable to the Ombudsman – who, by his or her very nature, rides shotgun on government agencies – is problematic. However this does not prevent the government from requiring that the private operator establish their own independent complaints authority, as has happened in Australia. Even local authorities have begun appointing their own Ombudsmen – it doesn’t have to be the Ombudsman (though I guess it could be, if the Ombudsman Act allows that office to contract its services to the private sector?). In WA all prisons, including private ones, are also regularly inspected by the Office of the Custodial Inspector. Prisoners and staff have free and private access to official visitors from the Office, who are drawn from the community.

    OIA: Again problematic, given that it applies to government agencies. But again not impossible to handle. Provided the private operator is contractually obliged to report thoroughly and regularly to the corrections department (and, as in the WA case, is paid partly on its efficiency and accuracty in so doing) then the information likely to be of relevance can be obtained under the OIA from the department.

    Liability: Is this not a good thing? If a private prison operator thought it could offload responsibility for harming (in whatever way) a prisoner onto the Crown, would it not then become laissez faire in its approach to prisoner welfare? Of course a private operator must take responsibllity for its own performance, and the risk of being sued by a prisoner or their family is an important part of that.

    If you don’t know, I/S, I work with prisoners, their families and sometimes victims and their families as part of the Prison Reform Group. I’m no fan of David Garrett, Garth McVicar et al and am an advocate of what I hope are policies which are both humane (towards prisoners) and effective (in terms of minimising recidivism). It is the success of some private prisons in these goals – far in excess of anything in the state system – that makes me a cautious supporter, not any sort of “lock ’em up and throw away the key” mentality.

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