“electronic communication device—

• “(a) means an electronic communication device (other than a device used to assist with a disability) that is capable of any or all of the following actions:

  • “(i) transmitting sound:

  • “(ii) computing information:

  • “(iii) functioning as a telephone:

  • “(iv) communicating in any other way using any technology (including telecommunication, radiocommunication, Internet, and broadcasting technology):

• “(b) includes any part of an electronic communication device (for example, a SIM card) regardless of whether the part—

  • “(i) is capable of any of the actions specified in paragraph (a); and

  • “(ii) is detachable and may be used in other electronic communication devices:

• “(c) includes any device that enables or facilitates the functioning of an electronic communication device (for example, a recharger or charging device):

• “(d) does not include—

  • “(i) any telephone facility provided for the use of prisoners under section 77; and

  • “(ii) any telephone facility or telephone system (whether inside or outside a prison) that a prisoner is permitted to use by a person under whose control or supervision the prisoner is”.

• “(vi) in respect of any provision, any employee of the department whom the chief executive designates to carry out the powers and functions of an officer under that provision in respect of 1 or more prisons; but”.

• “(k) a national preventive mechanism (as defined in section 16 of the Crimes of Torture Act 1989)”.

• “(c) any electronic communication device:”.

• “(fa) any thing or substance that could be used to tamper with any sample that a prisoner is required to supply in accordance with a prescribed procedure under section 124:”.

• “(3) Despite sections 21 and 22, the following provisions do not apply to a member of the armed forces, or an officer who is not also a member of the police:

  • “(a) sections 18 and 18A of the Misuse of Drugs Act 1975 (which confer powers of search and seizure):

  • “(b) section 13A of the Misuse of Drugs Amendment Act 1978 (which confers powers in relation to internal concealment):

  • “(c) sections 56 to 58 of the Misuse of Drugs Amendment Act 2005 (which confer enforcement powers in relation to restricted substances):

  • “(d) sections 200B, 200F, and 200G of the Summary Proceedings Act 1957 (which confer powers in relation to tracking devices).”

• “(3) Section 129(a) does not apply to a prisoner who, during a religious service (whether inside or outside a prison),—

  • “(a) consumes a small quantity of wine provided at the service by a prison chaplain or minister of religion for the purposes of the Eucharist, Holy Communion, Mass, or Communion, with the express authority of the prison manager or chief executive; or

  • “(b) consumes a small quantity of wine or other alcohol provided at the service as part of the ritual of the religion in question, by the person conducting the service, with the express authority of the prison manager or chief executive.”

• “(1) No officer or staff member may possess, carry, or use any firearm within a prison except as provided under subsection (3).”

• “(3) The chief executive may, in writing, authorise an officer or staff member to possess, carry, or use a firearm within a prison, but only in a specified area of the prison for 1 or more of the following purposes:

  • “(a) for the purpose of any specified prison industry:

  • “(b) for the purpose of humanely killing sick or injured animals:

  • “(c) for the purpose of pest control.

• “(4) If subsection (3) applies, a firearm—

  • “(a) may only be used by an officer or staff member who holds a current firearms licence under section 24 of the Arms Act 1983 and in accordance with that Act; and

  • “(b) must not be used while prisoners are present; and

  • “(c) must not be stored in a prison.”

• “(g) lift or raise any part of his or her body (including, for example, rolls of fat, genitalia, and breasts).”

• “(7) Authority to search any cell or other place, vehicle, or item, includes the authority to use an aid or aids such as a chemical substance or x-ray or imaging equipment or some other mechanical, electrical, or electronic device, or other similar aid.”

• “(iv) any hearing before the New Zealand Parole Board:”.

• “(j) if the prisoner is required under section 124 to submit to a prescribed procedure in the situation referred to in section 124(2)(d), immediately before the prisoner submits to that procedure.”

• “(1) For the purpose of detecting an unauthorised item, an officer may, with the prior approval of the prison manager, and in the presence of another officer, search any place set aside in a prison for the exclusive use of any person other than a prisoner (for example, a staff member’s locker).”

“103A Interpretation

• In this section and in sections 104 to 110A, unless the context otherwise requires,—

  “authorised officer means a prison manager or an officer authorised by the manager to open and read mail for the purposes of sections 104 to 110A.”

• “(1) An authorised officer may read correspondence between a prisoner and another person for the purpose of ascertaining whether it may be withheld under section 108(1).”

• “(v) prejudice the maintenance of the law (including the prevention, detection, investigation, prosecution, and punishment of offences, and the right to a fair trial); or

• “(vi) breach an order or direction of any court or constitute contempt of court.”

“110A Restrictions on disclosure of mail

• An authorised officer must not disclose any information obtained from correspondence contained in any mail between a prisoner and another person unless—

  • “(a) the disclosure is made to another authorised officer for the purpose of determining whether—

    • “(i) mail may be withheld under section 108(1); or

    • “(ii) mail that is withheld under section 108(1) should be forwarded to an enforcement officer under section 108(2); or

    • “(iii) paragraph (c) applies; or

  • “(b) the officer believes on reasonable grounds that the disclosure—

    • “(i) is necessary to avoid prejudice to the maintenance of the law by a public sector agency (within the meaning of the Privacy Act 1993), including the prevention, detection, investigation, prosecution, and punishment of offences; or

    • “(ii) is necessary for the conduct of proceedings (already commenced or reasonably in contemplation) before a court or tribunal; or

    • “(iii) is necessary to prevent or lessen a serious and imminent threat to public health, public safety, or the life or health of any person; or

    • “(iv) has been authorised by the Privacy Commissioner under section 54(1) of the Privacy Act 1993; or

  • “(c) the disclosure is required by any enactment or rule of law.

“110B Warnings in relation to mail

• The chief executive must take all practicable steps to ensure that when, or reasonably promptly after, prisoners are received at a prison they are informed in writing—

  • “(a) that their correspondence—

    • “(i) may be opened and read; and

    • “(ii) may be withheld, and the grounds on which it may be withheld; and

  • “(b) about the types of correspondence that are exempted from being opened, read, and withheld, and the extent to which the exemptions apply.

“110C Application of Privacy Act 1993

• The Privacy Act 1993 applies to any activity authorised under any of sections 104 to 110B relating to correspondence to or from a prisoner.”

• “(d) if the prisoner has submitted to a prescribed procedure under this section by supplying a sample and the prison manager believes, on reasonable grounds, that the sample supplied is dilute, tainted, or otherwise contaminated.”

• “(a) any offence against section 128(1), 129, 130, or 131, the hearing adjudicator may, after giving the prisoner an opportunity to provide reasons why the order should not be made, and whether or not he or she imposes a penalty under subsection (3), order that any article or thing used to commit the offence or in respect of which the offence was committed be forfeited to the Crown:”.

• “(a) any offence against section 128(1), 129, 130, or 131, the Visiting Justice may, after giving the prisoner an opportunity to provide reasons why the order should not be made, and whether or not he or she imposes a penalty under subsection (3), order that any article or thing used to commit the offence or in respect of which the offence was committed be forfeited to the Crown:”.

• “(g) without reasonable excuse, has in his or her possession any unauthorised item while in a prison:

• “(h) attempts to do any of the things described in paragraphs (a) to (g).”

• “(1A) Subsection (1)(g) does not apply to a prisoner.

• “(1B) A person is liable on summary conviction to imprisonment for a term not exceeding 3 months, to a fine not exceeding $5,000, or to both, who—

  • “(a) commits an offence against subsection (1)(a), (b), (c), or (g); or

  • “(b) commits an offence against subsection (1)(h) by attempting to do any thing described in subsection (1)(a), (b), (c), or (g).

• “(1C) A person is liable on summary conviction to imprisonment for a term not exceeding 3 months, to a fine not exceeding $2,000, or to both, who—

  • “(a) commits an offence against any of subsection (1)(d) to (f); or

  • “(b) commits an offence against subsection (1)(h) by attempting to do any thing described in any of subsection (1)(d) to (f).”

“141A Unauthorised use or possession of electronic communication device by prisoner

• “(1) Every prisoner (whether inside or outside a prison) commits an offence who, except with the express authority of the prison manager or the chief executive,—

  • “(a) uses an electronic communication device knowing that he or she is not authorised to use it; or

  • “(b) knowingly has an electronic communication device in his or her possession.

  “(2) A prisoner who commits an offence against subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 3 months, to a fine not exceeding $5,000, or to both.”

• “(2A) A person who commits an offence against subsection (1)(a) or (b) is liable on summary conviction to imprisonment for a term not exceeding 3 months, to a fine not exceeding $2,000, or to both.

• “(2B) Despite subsection (2A), an officer, staff member, or probation officer who commits an offence against subsection (1)(b) is liable to imprisonment for a term not exceeding 12 months, to a fine not exceeding $5,000, or to both.”

• “(3) Anything that is forfeited to the Crown—

  • “(a) under subsection (2) may, subject to any order of a court, be sold, used, destroyed, or disposed of in any manner that the chief executive directs:

  • “(b) under any provision of section 133 or 137 may be sold, used, destroyed, or disposed of in any manner that the chief executive directs.”

“Emergency management

“179A Detention of prisoners eligible for release during outbreak or spread of infectious disease

• “(1) A prisoner who is eligible for release under the Parole Act 2002 may be detained beyond his or her statutory release date in any part of the prison if that detention is pursuant to any order or requirement under section 70 or 79 of the Health Act 1956.

  “(2) In this section, statutory release date has the meaning given to it in section 4(1) of the Parole Act 2002.

“179B No compensation for detention in prison under Health Act 1956

• “(1) To avoid doubt, the Crown is not liable to make a payment to or otherwise compensate any person in respect of any detention in a prison if that detention is pursuant to any order or requirement under the Health Act 1956.

  “(2) This section does not—

  • “(a) limit section 179E or 195 or any other enactment dealing with liability or the payment of compensation; or

  • “(b) affect any cause of action relating to unlawful arrest or detention.

“179C Interpretation

• In this section and sections 179D and 179E, unless the context otherwise requires,—

  “act or omission means any act or omission described in section 179E(1)(a)

  “epidemic emergency affecting a prison or prisoners means an epidemic—

  • “(a) that occurs while an epidemic notice is in force; and

  • “(b) in respect of which the chief executive reasonably believes that the corrections system is no longer able to fulfil its purpose in section 5(1)(a) in relation to the prison or prisoners affected

  “epidemic notice means a notice under section 5 of the Epidemic Preparedness Act 2006

  “failure means any failure described in section 179E(1)(b)

  “prison emergency means an emergency—

  • “(a) affecting the safety or health of the prisoners or any class or group of prisoners, or the security of the prison; and

  • “(b) in respect of which the chief executive reasonably believes that the corrections system is no longer able to fulfil its purpose in section 5(1)(a) in relation to the prison or prisoners affected

  “regulations means regulations made under section 200

  “state of emergency affecting a prison or prisoners means a state of emergency—

  • “(a) within the meaning of section 4 of the Civil Defence Emergency Management Act 2002; and

  • “(b) in respect of which the chief executive reasonably believes that the corrections system is no longer able to fulfil its purpose in section 5(1)(a) in relation to the prison or prisoners affected.

“179D Notification of emergency

• “(1) The chief executive must notify the Minister within 7 days of determining the existence of—

  • “(a) an epidemic emergency affecting a prison or prisoners; or

  • “(b) a prison emergency; or

  • “(c) a state of emergency affecting a prison or prisoners.

  “(2) A notice under subsection (1) must—

  • “(a) be in writing and signed by the chief executive; and

  • “(b) state the date on which it is signed; and

  • “(c) state the nature of the emergency that exists; and

  • “(d) specify the actions taken to date in respect of the emergency; and

  • “(e) specify any action proposed to be taken to enable the corrections system to fulfil its purpose in section 5(1)(a).

  “(3) The chief executive must notify the Minister within 7 days of determining that the emergency no longer exists.

  “(4) A notice under subsection (3) must—

  • “(a) be in writing and signed by the chief executive; and

  • “(b) state the date on which it is signed; and

  • “(c) specify the actions taken in respect of the emergency.

“179E Exclusion of liability while epidemic notice in force or during emergency

• “(1) There is no cause of action against the Crown, a Minister of the Crown, an officer or employee of a Minister of the Crown, the chief executive, an employee of the department, a contractor, or an independent contractor, to recover damages for any harm or loss that is due directly or indirectly to—

  • “(a) any act or omission by any person that occurs while carrying out his or her functions or duties or exercising his or her powers under a provision of this Act or the regulations that has been modified by Order in Council under the Epidemic Preparedness Act 2006 while an epidemic notice is in force; or

  • “(b) any failure by any person to comply (or comply fully) with any provision of this Act or the regulations if—

    • “(i) the failure occurs during an epidemic emergency affecting a prison or prisoners, a prison emergency, or a state of emergency affecting a prison or prisoners; and

    • “(ii) it is impossible or unreasonable in the circumstances to comply (or comply fully) with this Act or the regulations.

  “(2) A person is not exempt from liability under subsection (1) if the act or omission, or failure, constitutes bad faith or gross negligence on the part of that person.

  “(3) A person may apply to the High Court for leave to bring proceedings against any person referred to in subsection (1) on the ground that the act or omission, or failure, constitutes bad faith or gross negligence on the part of that person.

  “(4) The court must not grant leave unless it is satisfied that there are grounds for the contention that the act or omission, or failure, constitutes bad faith or gross negligence on the part of the person against whom proceedings are sought to be brought.

  “(5) An application for leave under subsection (3) must be made—

  • “(a) within 2 years after the act or omission, or failure, to which the application relates; or

  • “(b) in the case of a continuance of injury or damage, within 2 years after the ceasing of the injury or damage.

  “(6) Nothing in this section—

  • “(a) prevents the Crown from making any ex gratia payment it considers justifiable on the basis of hardship or fairness:

  • “(b) limits the operation of section 86 of the State Sector Act 1988:

  • “(c) affects any cause of action relating to unlawful arrest or detention.”

“Information sharing about highest-risk offenders

“181A Disclosure of information relating to highest-risk offenders

• “(1) A specified agency that enters into an information sharing agreement under section 182D (as modified by subsection (5)) with another specified agency is authorised to disclose to that agency any personal information about a highest-risk offender, but only if the disclosure is for, or relates to, a purpose listed in subsection (3).

  “(2) Nothing in subsection (1) limits the operation of the Privacy Act 1993 or section 182 of this Act.

  “(3) The purposes for which personal information about highest-risk offenders may be disclosed under an information sharing agreement between specified agencies are—

  • “(a) to assist the monitoring of compliance of highest-risk offenders with their conditions of release:

  • “(b) to assist in facilitating the rehabilitation of highest-risk offenders:

  • “(c) to facilitate the reintegration of highest-risk offenders into the community:

  • “(d) to manage the risk that the offender may commit further offences:

  • “(e) to identify any increased risk that the offender may breach his or her conditions or will commit further offences.

  “(4) For the purposes of this section,—

  “highest-risk offender means any offender whom the chief executive considers, having regard, among other matters, to the nature and seriousness of his or her offending, to be included in the class of offenders who pose the highest risk to public safety

  “specified agency means—

  • “(a) the Department of Corrections:

  • “(b) the New Zealand Police:

  • “(c) any public sector agency (as that term is defined in section 2 of the Privacy Act 1993) that the Minister of Justice, after consultation with the Privacy Commissioner, identifies as a specified agency for the purposes of this section by notice in the Gazette.

  “(5) Sections 182D and 182E apply to information sharing agreements about highest-risk offenders as if every reference in those sections to a child sex offender were a reference to a highest-risk offender.

  “(6) Information disclosed for the purposes of this section may be disclosed prior to the offender’s release from prison.

  “(7) This section does not limit or affect any information sharing agreement under section 182D in relation to a child sex offender who is also a highest-risk offender.”

• “(4) Information disclosed for the purposes of this section may be disclosed prior to the offender’s release from prison.”

“Detection, interception, etc, of radiocommunications within prison boundaries

“189A Interpretation

• In this section and sections 189B and 189C, unless the context otherwise requires,—

  “harmful interference has the meaning given to it in section 2(1) of the Radiocommunications Act 1989

  “interference has the meaning given to it in section 2(1) of the Radiocommunications Act 1989

  “radiocommunications has the meaning given to it in section 2(1) of the Radiocommunications Act 1989

  “unauthorised electronic communication—

  • “(a) means any electronic communication made in contravention of section 141A(1)(a); and

  • “(b) includes any electronic communication received on an electronic communication device that the prisoner uses or possesses in contravention of that section.

“189B Detection, interception, etc, of radiocommunications within prison boundaries

• For the purpose of stopping or preventing unauthorised electronic communications to or from prisoners within prison boundaries, and the delivery, possession, or use of electronic communication devices by any person in contravention of section 141,—

  • “(a) any person authorised by the chief executive for the purpose of this section may use any equipment or device to detect, intercept, monitor, disable, disrupt, or interfere with radiocommunications within prison boundaries; but

  • “(b) no interference may be made under this section that would result in harmful interference outside prison boundaries.

“189C Recordings of unauthorised communications

• If a prison manager believes on reasonable grounds that an unauthorised electronic communication contains information relating to the commission or attempted commission of an offence, a record of that communication may be made and given—

  • “(a) to an enforcement officer:

  • “(b) to the chief executive or any other employee of the department.”

• “(3) Subsection (2) is subject to section 179A of the Corrections Act 2004.”

• “(4) A prisoner to whom section 179A of the Corrections Act 2004 applies—

  • “(a) is not, during the period between the statutory release date and the date of actual release, subject to any release conditions that will apply on or after his or her statutory release date; but

  • “(b) from the statutory release date the time begins to run on the prisoner’s release conditions.”