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1) JustSpeak is a justice advocacy organisation that advocates for people in prisons, people who have formerly been incarcerated and other vulnerable communities. As an organisation, we believe everyone deserves to feel safe and cared for. We welcome and thank you for this opportunity to provide our submission on the Corrections Amendment Bill.
2) We believe it is imperative that the New Zealand Government upholds its international obligations to protect people in prisons. The United Nations basic principles for the treatment of prisoners states that the responsibility of prisons and people incarcerated shall be discharged in keeping with a State's social objectives; and its fundamental responsibilities for promoting the well-being and development of all members of society. The exception to this, is that all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights. And, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol.
3) As a priority, we would like to see that the New Zealand Government ensures that any amendments to the Corrections Bill are made in accordance with all international instruments that it is a signatory to, especially instruments that pertain to the well being of people in prison and their human rights.
4) We believe everyone in New Zealand deserves to have their privacy rights and human rights observed and protected. The proposed amendments to subpart 4A of the Corrections Bill gives substantial power to Corrections allowing them to encroach on privacy rights of people in prison. Although we acknowledge the proposed amendments are intended to clarify Corrections powers to safeguard people's privacy rights including ‘exemption prisoner communications’. An Inspectorate’s report on Christchurch Women’s Prison stated: “Wāhine we spoke within most units said they could not make legal telephone calls in private in their units. Legal calls were undertaken either in the staff office with a staff member present or just outside the office in the corridor (with the handset passed through the guard room window).”1 This demonstrates that Corrections historically has not honoured its obligations to protect the integrity of people in prison's privacy rights. Not to mention, the poor oversight of these processes by Corrections staff, which means these incidents are seldom recorded.
5) As such, we are deeply concerned about the scope of power conferred on the Chief Executive of Corrections (including staff acting on their behalf) in this Bill. We urge the Government to err on the side of caution with respect to giving such wide powers to Corrections. Currently, the interpretation of these terms in the Bill is too broad. As it stands, the interpretation of these terms are:
a) authorised intelligence person means—
b) eligible employee means a person who is an employee of the Chief Executive or an employee of a contractor.
6) This means any employee/contractor of Corrections can be deemed a ‘authorised intelligence person’ or ‘eligible employee’. It is crucial that the acquisition of communications for the purpose of intelligence is done by specially appointed and trained people. This is especially important as any intelligence information may be called on to be presented in court (including tribunals etc). Such information may subject the Crown to further litigation under the Search and Surveillance Act and/or judicial review. This is particularly important with regard to intelligence acquired under: s 127H, I, J, L, and M. The Crown must ensure any encroachment on privacy and human rights is balanced, justified, and reasonable in the broader context of international instruments, human rights, and other legislation. We recommend strengthening and clearly stipulating what constitutes an ‘eligible employee’ or an ‘authorised intelligence person’.
7) We believe that everyone in Aotearoa deserves to be listened to and heard. This is especially important for vulnerable members of our society such as people in prison. The proposed changes to the disciplinary processes in prisons targets ancillary issues instead of the root causes of the problem. We know that the oversight processes across the entire prison network are poor. This lack of oversight can be evidenced by the recent Ombudsman Report2 and the UN Committee Against Torture concluding observations. We frequently hear anecdotally from people in prison who have submitted complaints or requests to Corrections staff and those requests have been ignored, misplaced or forgotten.
8) The lack of oversight often means there is no paper trail of people in prisons living conditions, personal or wellbeing requests e.g. requests for medical assistance, or to speak to their lawyer. Nor is there a record of Corrections staff actions following requests from people in their custody. Often, it is this disregard by Corrections staff that causes people to become frustrated and engage in concerning/anti-social behaviour which inevitably results in disciplinary action. Another example of this is the Waikeria Prison protest where 16 people escaped onto a roof in protest of their conditions. This RNZ interview with a protester, said: "We hear about this Hōkai Rangi strategy but we don't see it. There is no programme. There is no rehabilitation. It locks us up, puts you in a yard full of gang members and then lets you out. And they expect us to change."
9) While we acknowledge strengthening disciplinary processes in prisons is important for procedural clarity, it is our recommendation that oversight processes are prioritised. It is clear that the lack of oversight and blatant disregard for people's wellbeing and needs in prisons contributes to the escalation of concerning behaviour, resulting in disciplinary action. Corrections must have transparent and accountable processes in place so that if a person is required to appear before a disciplinary hearing, the adjudicator (visiting justice) is able to consider the entire context of a disciplinary matter before them. We strongly recommend that the Government prioritises the implementation of better oversight processes, and support for people in prison as a measure to incentivise good behaviour.
10) Everyone in Aotearoa-New Zealand deserves to be free from unfair torture and treatment. While we support the amendments to strengthen processes for the authorisation and use of non-lethal weapons on people in prison, we are concerned about the effectiveness of this amendment. In particular, the authorisation for the use of non-lethal weapons is given by the Minister under s 85(3A). This authorisation relies heavily on information from onsite Corrections staff which may not be fulsome, correct, or may be given under time constraints which could compromise the quality of information provided to the Minister. As such, this may render the Minister at risk of authorising the use of non-lethal weapons without appropriate context or other information, and could result in judicial review proceedings. Accordingly, we strongly recommend defining what constitutes an imminent threat of injury or harm to the prisoner or any other person. It is important that the Bill reflects and considers previous instances where use of non-lethal weapons beyond reasonable limits has occurred.3 Clearly defining ‘imminent threat of injury or harm’ is important when many people experiencing mental health struggles are often passive or non-responsive.
11) International human rights law requires the use of ‘less-lethal weapons’ to comply with the following governing principles: legality, legitimate aim, necessity and proportionality. Furthermore, the United Nations Office of the Commissioners for Human Rights states: “Chemical irritants should not be used in closed environments without adequate ventilation or where there is no viable exit, owing to the risk of death or serious injury from asphyxiation.”Accordingly, we strongly recommend banning the use of chemical irritants (such as pepper spray) in enclosed environments as a bottom line across the prison network.
12) We support the inclusion of this section, in particular, the changes to allow the views of whānau, iwi, and hapū to be taken into account, where appropriate and so far as is reasonable and practicable. This is critical with respect to decisions about locality placement of people in prison, and providing for temporary release cultural activities for prisoners especially tangihanga. We recommend that oversight and recording is included in this section to ensure that there is a means to reconcile the effectiveness of it and to ensure Corrections are adequately facilitating accessibility.
13) The International Covenant on Civil and Political Rights requires the separation of accused and convicted people in prison to protect the presumption of innocence for accused people. We acknowledge that it may not be financially feasible to do parallel rehabilitation or education programmes for people on remand and sentenced separately. However well meaning, and even on a ‘limited’ and under certain circumstances basis, the mixing of prisoners should not be allowed. The priority must be to ensure every person in New Zealand has the right to a fair trial and as a signatory to the ICCPR we must uphold our obligations. Mixing remand and sentenced populations fundamentally undermines long standing legal doctrines. Our Government must recognise that our increasing remand population is a reflection of many people not being able to provide suitable addresses and this is a result of a housing crisis. We do not recommend mixing populations, instead, the presumption should be to release people instead of remanding them in custody.
14) We recommend that the Government instead includes in this legislation a provision that overrides the reverse onus presumption, and instead, looks to support community/at home remand options where in community rehabilitation can be accessed as an alternative to being remanded in prison.
1 Office of the Inspectorate, Christchurch Women’s Prison Inspection, October 2020 , p. 20, https://inspectorate.corrections.govt.nz/reports/prison_inspection_reports/christchurch_womens_prison_inspection_report.
2 Ombudsman Report Kia Whaitake - Making a Difference at p 86-88.
3 R v Bassett [2020] NZDC 24454, p. 8