Staffing shortages limiting out-of-cell time and visiting hours may have led to guards assaulting protesting inmates
Police are investigating an alleged assault of three prisoners by staff in Auckland Prison last month, after the men remained in the yard in what they said was a protest of staff shortages restricting yard time.
Ongoing shortages of Department of Corrections staff have kept prisoners' lives essentially stuck in the early days of the pandemic, with visiting hours and yard time cut down significantly.
With an onsite population of almost 8000 prisoners to look after, staff have been stretched wafer-thin by a tight labour market, years of border restrictions and recently high turnover rates - with more staff resigning than being employed during the month of July.
While Corrections chief executive Jeremy Lightfoot said the department has increased “efforts in recruitment, retention, and lifting the capabilities of our workforce”, for those living behind bars, legal entitlements like yard time are being leaned on hard.
Minister of Corrections Kelvin Davis said after several tough years working under Covid-19 restrictions, prisons were now facing a staffing shortage much like other industries across the country.
He said Corrections was responding to this with big recruitment drives, surge staffing to the most badly-hit facilities and shifting prisoners around the country.
He conceded there had been a big impact on entitlements such as visits in prisons.
“These are heading back in the right direction and we expect at least 14 prisons to be open for visits by the end of the month,” he said. At the moment, a third of the country’s 18 prisons remain closed to outside visits.
Lawyer Janet Mason said she had clients in Auckland Prison who were only getting time out of their cells every two or three days, as opposed to their basic minimum legal requirement of one hour in the yard a day.
It was this exact tension that may have led to a trio of prisoners being pepper-sprayed and allegedly assaulted on October 22, with faces smashed against concrete and kicks dished out to already pepper-sprayed prisoners by a group of 10-plus emergency response staff.
Mason said she noticed her client had black eyes and a bruised face on a recent visit.
Upon enquiry he told her that after months of complaint without response about the lack of yard time, he and two other prisoners refused to return to their cells from the exercise yard and asked to see the manager of the prison.
This turned into a stalemate of five hours, which ended with the yard being stormed by a group of Corrections staff who left Mason’s client with injuries that were still visible a fortnight later.
Mason said none of the three prisoners were seen by doctors, with her client only seeing a nurse who told him he may have a concussion.
Prison director Stephen Parr had a different take on the incident, saying the three prisoners had been damaging a phone and had been threatening staff.
“Staff attempted to deescalate the situation by negotiating with the men involved, however they refused to comply with staff instructions and return to their cells,” he said. “This occurred over the course of several hours. The men again started behaving aggressively toward staff and kicking the yard door. A planned use of force was approved and used to resolve the incident.”
Parr said all three men were offered medical attention but declined. Following the incident, the three men were placed on directed segregation and the prison is currently undertaking a review of the event according to standard procedure.
Mason, however, said it took her agitating for the case to be referred to police for investigation. This week, it was confirmed the Waitematā District’s criminal investigation branch would be looking into the incident.
Mason said while the use of force by prison staff was not the issue in itself, she alleged the actions of the Corrections staff go far beyond the “reasonably necessary” level of allowed force as detailed in the Corrections Act 2004.
While use of force is justified in the act in the case of passive (or active) resistance to a lawful order, staff may not use any more physical force than is reasonably necessary in the circumstances.
Mason said pulling her client's head up by his hair and smashing the side of his face on the concrete did not constitute the accepted level of force, particularly given the three prisoners had already been incapacitated by use of pepper spray.
It could be up for debate whether the next obligation set out by the act was met - after application of force and as soon as is practicable, the prisoner must be examined by a registered health professional.
“They weren't taken for scans or any kind of medical investigation, all they were offered was just a visit from the nurse, which was really not adequate for the level of injury,” Mason said.
Her client was a part of the Waikeria Prison riots, which broke out back in December of 2020 and saw 16 prisoners who had been protesting poor living conditions distributed to facilities around the country.
The Waikeria 16 have taken a wide-ranging civil rights claim against Corrections, and Lightfoot alleging numerous breaches of the Corrections Act and Regulations and the Nelson Mandela Rules.
Now Mason’s client wonders if he has a target on his back.
Parr said Corrections is committed to ensuring minimum entitlements are met and individuals’ rights are upheld - except in the event of circumstances that lawfully preclude this.
He pointed to Section 69(2) of the Corrections Act 2004, which states that an individual’s minimum entitlements may be denied if there is an emergency in the prison, the security of the prison is threatened or if the health or safety of any person is threatened.
“Like many other agencies and businesses, we have experienced a number of inter-connected challenges, with Covid-19 stressors, border closures and record low unemployment rates making it more challenging to recruit and retain staff,” he said. “Covid-19 has also impacted staffing levels due to sickness.”
All things considered, these past few years have been a bad time to be in prison in New Zealand. Rehabilitation programmes and access to the outside world have been clamped down on in an effort by Corrections to keep the ship running with a skeleton crew.
Mason said it’s the staffing issues that ultimately lead to the alleged assaults.
She said Section 69(2) would not come into it if this were not an emergency situation.
“It was a case of Corrections, over a long period of time, consistently breaching prisoners' basic legal human rights. Corrections is not above the law. They have to adhere to the Corrections Act and Regulations. Legal entitlements are being breached by them every day - they have known for months about the staff shortages,” she said. “They cannot go on blatantly breaking the law like this with no consequences - it's just sheer incompetence.”
In Corrections’ annual report from this year, the department said the required restrictions during last year’s lockdowns had a material impact on its ability to deliver offence-related rehabilitation and reintegration related activities.
The department said where possible activities were brought back with audio-visual links or following strict safety protocols. However, following the detection of Omicron on New Zealand shores, its focus shifted to managing the virus within prisons while withstanding the impact of the pandemic on staffing levels.
The report said prisons’ ability to resume activities and in-person visits is heavily dependent on both staffing availability and levels of Covid at each facility.
Corrections acting national commissioner Leigh Marsh said face-to-face visits were back up and running at 12 of the 18 prisons in the country, although at Auckland Prison they still needed to go through an audio-visual link.
Marsh said the department is making a concerted effort to plug staffing gaps by holding information evenings, strengthening recruitment processes, implementing rosters that prioritise the work-life balance of staff and continuously working to improve staff safety.
“We are actively working to recruit new Corrections officers across the country and our staff have also been carrying out recruitment activities in their local communities,” he said.
Marsh said the department had received over 1400 applications to become a Corrections officer over the past three months.
“Auckland Prison recently led a recruitment day in the community led by our Pasifika Network as well as an information day onsite which offered the opportunity to speak with staff from both custodial and non-custodial roles,” he said.
Prisoners are also being moved between facilities on a temporary basis to alleviate pressure on staff at the sites most under the pump - partially to make sure prisoners are getting their unlock hours.
But the manager of Auckland Prison, the country’s only specialist maximum security facility, said it was at times a particularly volatile and unpredictable place.
But how long has the writing been on the wall for the prison system and its staffing woes?
Kelvin Davis said Corrections had seen this coming. However, strong moves from central Government such as leaning on immigration levers are yet to be seen.
Davis said bringing in new staff from overseas was easier said than done, and the prisons would be better off once Corrections had completed its big recruitment drives.
“Bringing in prison guards from overseas is not a quick fix,” he said. “They are still required to undertake the same three months' training as any new prison guard so attracting New Zealanders is a faster option.”
Davis said safety was prioritised in these decisions.
“Ultimately, I want to see all prisons open to visitors and prisoners having as much access as possible to recreational and rehabilitative services,” he said. “But the safety of prisons has to come first.”
Mason said she was pleased the police were conducting an investigation into the alleged assaults.
“Under our laws prisoners need to be treated humanely and actually rehabilitated, not subjected to vicious assaults just for demanding that Corrections obey the laws that Parliament has passed,” she said. “We all know that violence only begets more violence.”
