The Chief Ombudsman is continuing to investigate how the Department of Corrections has responded to repeated calls to improve prison conditions, with findings expected around the middle of the year.

It comes as senior criminal barristers criticise Corrections for “aspiring” to realise prisoners’ legislative and fundamental rights to minimum entitlements, as the department this week said it was resuming in-person visits between counsel and their clients at all 18 of New Zealand’s prisons.

These visits ceased during the pandemic and are one of a raft of minimum entitlements inmates are permitted under domestic and international law. Minimum entitlements aren’t absolute though – they can be denied for a reasonable period of time if there’s an emergency, prison security is threatened or health or safety is put at risk.

Chief Ombudsman Peter Boshier has been concerned about the continued restrictions people in custody have faced because of the pandemic and staff shortages within Corrections.

Boshier said people in custody have a fundamental right to legal and whānau visits, which can be lawfully denied only in very limited circumstances and for a reasonable period of time.

“These rights are essential for the just, fair and humane treatment of people in custody, as well as their whanau,” he said.

“I expect staffing to be kept at a safe level in line with international human rights law and guidance, so that minimum standards are met and the wellbeing of all people in the prison environment is maintained.”

In May 2021, the chief ombudsman started investigating how Corrections has responded to repeated calls for reforming prison conditions.

At the time, Boshier hadn’t seen “significant and sustained” improvements and had become increasingly concerned about seeing the same issues repeatedly emerge.

“I now need to determine if there are any system-wide issues in the department that may be preventing it from making changes that I and other oversight agencies have been calling for,” Boshier said.

Boshier confirmed his investigation remained in train, and expected to release his findings mid-2023.

Visits

Since 2022, all but one prison has allowed in-person legal visits to resume, with Upper Hutt’s Rimutaka prison being the outlier.  One of the country’s largest prisons, Rimutaka resumed visits only this week.

Lawyers’ preferred dates and times cannot be guaranteed, however, as Rimutaka continues to face significant staffing challenges.

“Initially, there will be limited availability for face-to-face legal visits as Rimutaka Prison builds up its capacity to facilitate them,” Corrections said. “AVL and phone calls will remain available as means to contact clients.”

In-person legal visits were paused at Rimutaka at the end of September last year because the prison had to manage an increase in inmates from other sites struggling with even greater staffing pressures, Corrections national commissioner Leigh Marsh said.

The department took its responsibility to support the legal process “extremely seriously” and ensured alternative means of communication were in place, including by increasing the availability of AVL devices capable of facilitating virtual visits.

With face-to-face visits resumed, counsel could contact Rimutaka prison directly, rather than through a centralised prison contact team established to coordinate all legal visits during the covid-19 pandemic.

Face-to-face contact has also resumed for whānau, with 15 prisons facilitating such visits, and most having allowed them since last year.

Whānau visits have resumed in some of Auckland Prison’s units, with virtual visits available for other units. Known as Paremoremo, the prison is permitting family to visit unit six on Monday mornings and unit eight on Thursdays in the early afternoon.

Face-to-face visits haven’t resumed yet at Spring Hill, Rimutaka and Mt Eden, Corrections said.

Marsh acknowledged the difficulty for whānau in not being able “to always see their loved ones in person in prison”. Staff were working hard to resume visits and activities as soon as possible, while maintaining safety.

Criticism

While the resumption of visits was a good start, criminal barrister Emma Priest said minimum entitlements weren’t “aspirational” targets for Corrections to meet.

“They are minimum entitlements. They are the low watermark, you can’t fall below them. They are not something to aspire to.” Priest said. “The thing that upsets me with Corrections at present [is] they say they are trying, but they don’t get to try hard on fundamental human rights. It’s baseline stuff. It simply has to be done.”

Concern for the welfare of inmates has surfaced as recently as January, with Stuff reporting some prisoners at Paremoremo were being left locked in their cells for up to three days at a time, in breach of their human rights.

In August 2022, Stuff also reported Rimutaka inmates in two units were being locked in their cells for more than 22 hours some days due to prison staff shortages.

The issue has also been relevant at sentencing: judges have been prepared to accept a lack of minimum entitlements and prolonged time in solitary confinement as mitigating factors.

Counsel have argued a “covid discount” exists – time spent in custody, both on remand and as sentenced prisoners, has been disproportionately severe because of the pandemic and Corrections’ staff shortages. The courts have recognised the argument either by awarding discounts at sentencing or imposing concurrent sentences.

Criminal barrister Julie-Anne Kincade KC agreed, and described the denial of minimum entitlements as multi-layered.

“There’s the layer of being locked up for periods of time, which are inhuman. There’s the layer of not being able to see your family. Then there’s the layer of having difficulties and issues with preparing for your trial,” Kincade said.

“It’s not just about covid. Of course, covid had its own restrictions, but these problems are systemic and to do with staffing problems within Corrections.”

Lawyers were seeing the effect of confinement and a lack of minimum entitlements on prisoner wellbeing.

In addition to feeling panicked and anxious, inmates who have lacked social interaction and connection were overwhelmed by the busy court environment, Priest said.

“It’s significant when they have been only allowed out of their cells for perhaps three hours a week over the preceding months.”

Lawyers are worried clients’ increasing anxiety would heighten an already tense environment or result in someone getting hurt. Kincade said it was crucial the criminal justice system didn’t add to the trauma of being locked up.

Staffing

Corrections has attributed the lack of minimum entitlements to staff shortages and the pandemic.

Some 469 front-line custodial roles – or 12% of the nearly 4,000 established positions – remained vacant at the end of February 2023. Marsh, Corrections’ national commissioner, said some 338 staff couldn’t work due to sickness or other reasons. The department was aiming to recruit for all vacant frontline roles up to what is funded.

A “concerted” effort has been made to recruit, retain and train. A new recruitment campaign, at a cost of nearly $7 million, had been launched; recruitment processes have been strengthened; and onboarding processes and work-life balance have been improved, Marsh said.

Since October 2022, the department has received more than 3,100 applications for prison officer roles, of which almost a third have been received so far in 2023.

“Not all these roles are required to be filled for the safe and secure operation of prisons. Like any organisation, we have a natural turnover of staff and a level of vacancy is built into our operating model. The number of vacancies fluctuates on a daily basis,” he said.

Recruitment and retention were challenging because of record low unemployment, border closures, and stressors related to covid-19. Consequently, a larger number of staff left their roles during the pandemic for other opportunities at a rate Corrections hadn’t seen before, Marsh said.

“These challenges continue to impact our ability to safely facilitate services within the prison environment at some sites, including rehabilitation programmes, training and education, visits, and unlock hours.”