Thursday, March 12, 2009

No accountability for National's private prisons

The government introduced its Corrections (Contract Management of Prisons) Amendment Bill, which would allow US-style private prisons, today. Mostly its 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.