All 18 of New Zealand’s prisons have now resumed face-to-face contact between inmates and counsel while the Department of Corrections continues to “recruit, retain and train” to deal with staffing shortages.

But criminal law barristers are criticising the department for “aspiring” to meet minimum entitlements under the Corrections Act 2004, saying these entitlements are not aspirational targets. From this week, all prisons have resumed face-to-face legal visits, Corrections said in a recent update sent to the judiciary, legal profession and justice sector partners and agencies.

All but one prison since 2022 has allowed in-person legal visits to proceed, with Upper Hutt’s Rimutaka prison, one of the country’s largest prisons, resuming them only this week. Lawyers’ preferred dates and times couldn’t be guaranteed, however, as Rimutaka continued 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 last September because the prison had to manage an increase in inmates from other sites struggling with greater staffing pressures, Corrections national commissioner Leigh Marsh said. It was reported at the time that 75 prisoners were set to move to Rimutaka from Mt Eden Corrections Facility and Spring Hill in the Waikato.

Corrections took its responsibility to support the legal process “extremely seriously” and ensured alternative means of communication were in place, including increasing the availability of AVL devices capable of facilitating virtual visits. Marsh said there was no time limit for scheduled contact; lawyers were able to determine how much time they needed and, within reason, Rimutaka prison would facilitate it.

“While we know these measures don’t replace the benefit that can come from face-to-face visits, again, we had to keep the prison operating safely and securely,” he said. With the resumption of face-to-face visits, counsel can contact Rimutaka prison directly, rather than through a centralised prison contact team established to coordinate all legal visits during the covid-19 pandemic.

Whānau visits

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 in its update. 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.

Criticisms

While the resumption of visits was a great start, criminal barrister Emma Priest said minimum entitlements weren’t “aspirational” targets for Corrections to meet. Section 69 of the Corrections Act 2004 permits prisoners a raft of minimum entitlements, such as physical exercise for at least one hour a day, receiving at least one private visitor each week for a minimum of 30 minutes and having their lawyer visit to discuss their legal affairs.

Minimum entitlements aren’t absolute though: prisoners may be denied them, “for a period of time that is reasonable in the circumstances”, if there’s an emergency, prison security is threatened or any person’s health or safety is put at risk. The United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela rules) mandate all prisoners have at least one hour of outdoor exercise each day. Concern for the welfare of inmates has surfaced as recently as January, with Stuff reporting some prisoners at Paremoremo were being 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 Corrections staff shortages. In an Official Information Act response specifically focused on two maximum security units at Auckland prison, which LawNews has seen, Corrections confirmed the minimum entitlement to receiving private visitors had been denied to inmates since August 2021 on the ground that people’s health or safety was threatened.

Corrections also revealed inmates from the same two units were, between August 2022 and January 2023, denied their entitlement to physical exercise, mostly on the basis that prison security was at risk, with just over 1,000 people denied the entitlement at the start of the year. 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.

“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.”

Systemic issues

Criminal barrister Julie-Anne Kincade KC 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.

“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.” Marsh, Corrections’ national commissioner, said the department has received more than 3,100 applications for prison officer roles since October 2022, with almost a third received so far in 2023.

Some 469 front-line custodial roles – or 12% of the nearly 4,000 established positions – remained vacant at the end of February 2023. Moreover, 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.

“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.

Corrections was making a “concerted” effort 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 recruitment and retention was 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. “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,” he said.

‘Just, fair and humane’

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

“People in custody have a fundamental right to legal visits and whānau visits, which can only be lawfully denied 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 whānau,” Boshier 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, Boshier started investigating how Corrections has responded to repeated calls for improving prison conditions. At the time, the chief ombudsman 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. The investigation remains live, and Boshier expects to release his findings around the middle of the year.

First-hand effects

Lawyers are seeing the effect of confinement and a lack of minimum entitlements on prisoner wellbeing. Priest said inmates have described feeling panicked: “heart racing, sweaty hands, nausea and an inability to concentrate.” The lack of social interaction and connection, with prisoners being denied whānau visits and physical exercise, meant the courtroom was an overwhelming place for them upon arrival. “There are so many people, so much noise, lots of movement,” 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.”

Kincade added that, over and above the “nerve-wracking” experience of going to court, some prisoners have had trouble even getting to court in the first place. This made it difficult for counsel to communicate with their clients and take instructions for their case – and put the actual court fixture in jeopardy. “What we are worried about is that, because of that anxiety they will be feeling, it will manifest in a way where someone gets hurt, whether it’s the prisoner or the prison guard, or it’s just a very tense situation which, really, Corrections should be doing its best to ameliorate,” Kincade said.

It’s crucial the system didn’t add to the trauma of being locked up, so that “we don’t release a little ball of anger into our society, because nobody wants that either”. ■