OFFICE OF THE INSPECTORATE Te Tari Tirohia

8 July 2024

The Office of the Inspectorate has released updated Inspection Standards, which guide inspectors to deliver independent and objective assessments of the treatment and conditions of prisoners in New Zealand.

The following article, by Chief Inspector Janis Adair, was originally published in the international Expert Network on External Prison Oversight and Human Rights newsletter, June 2024.

Looking and listening: The New Zealand Office of the Inspectorate’s Inspection Standards - An Ongoing Journey

Mā te titiro me te whakarongo ka puta mai te māramatanga

By looking and listening, we will gain insight

The development of the Inspection Standards by the Office of the Inspectorate ꟾTe Tari Tirohia for the New Zealand Department of Corrections ꟾ Ara Poutama Aotearoa has been an incremental journey as we have tested the practicality of their application, use and reporting.

The United Nations Office on Drugs and Crime publication ‘Assessing compliance with the Nelson Mandela Rules – A checklist for internal inspection mechanisms’ (2017) sets out the crucial reasons why inspection standards are needed:

“Monitoring and inspection mechanisms shed a fresh and critical light on institutions which, by their very nature, are closed environments, and therefore require particular efforts to counter the risk of abuse… It is to contribute to a safe, secure and humane prison environment.”

Background

In 2017, the Inspectorate was significantly enhanced and moved from being primarily complaints focused to having a wider mandate, including carrying out inspections of prisons to ensure that prisoners are treated in a fair, safe, secure and humane way, and staffing was increased, both in number and skill base, to reflect the new functions. That year I was appointed as Chief Inspector.

An ambitious programme commenced to inspect all 18 New Zealand prisons over a period of 20 months. Initially, the Inspectorate used unpublished Healthy Prison Standards to guide inspections, until the development and codifying of Inspection Standards specific to New Zealand prisons in 2019.

The Inspection Standards were informed by a wide range of international principles, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the ‘Nelson Mandela Rules’), HM Inspectorate of Prisons Expectations, and the European Prison Rules. Gender-responsive standards (for women and transgender prisoners) derive from the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’) and the Yogyakarta Principles, which were developed to complement and supplement the Nelson Mandela Rules. We also learnt much from the inspections completed by other oversight agencies, both domestically and internationally.

New Zealand’s distinctive circumstances were taken into account with the development of the Inspection Standards, in particular specific culturally responsive standards and indicators for Māori, who are over-represented in New Zealand prisons.

Between 2017 and 2019, the Inspectorate conducted 21 announced and unannounced prison inspections. This programme was then paused due to the Covid-19 pandemic and to allow for a greater focus on thematic reports, which offer Corrections valuable insights into the lived experience of prisoners across the prison network.

From 2020, the Inspectorate carried out a suite of work focusing on women in prison. This was initiated by a complaint from a lawyer representing three maximum security women prisoners at Auckland Region Women’s Corrections Facility, which led to a special investigation into the management of these women. The resulting report included adverse findings around the use of segregation and force.

Following this, the Minister of Corrections at the time directed a review of all women’s prisons. He stated: “The corrections system and network was built to suit the needs of male prisoners. I believe we need to review the system and network to ensure we operate our women’s prisons based on the needs of female prisoners.”

The Inspectorate broadened its scrutiny and carried out inspections at New Zealand’s three women’s prisons, and then undertook a thematic inspection of the lived experiences of women in prisons. Together, these five reports examined the challenges faced by women in prison and offered an opportunity for Corrections to refresh its polices, practices and procedures to make significant and lasting changes to the women’s prison network.

A number of other thematic reports were conducted, which examined older prisoners, inter-prison transfers, separation and isolation, pregnant woman and those with young children, and suspected suicide and self-harm.

The Separation and Isolation Thematic Report: Prisoners who have been kept apart from the prison population involved inspections of all 18 prisons and found that 29% of prisoners experienced a period during which they were unable to associate with others. Similarly, for the young adult thematic inspection, which is currently being undertaken, inspectors visited all 18 prisons and interviewed more than 200 young men and women.

This thematic approach has led to insights and recommended improvements for the whole of the prison network, rather than a focus on individual sites.

The Current Situation

New Zealand currently has around 9600 prisoners in 18 prisons (including the three women’s prisons and one privately-managed prison), and the prison population is expected to continue increasing.

The Inspection Standards were updated in March 2023 with the addition of Leadership Standards, which apply to staff with leadership or management responsibility in a prison.

Prison inspections restarted in 2023, following the global pandemic, and five prisons have been inspected, including the Prisoners of Extreme Risk Unit which is contained within a maximum-security prison (there were also two inspections in 2021). The inspection of Manawatū Prison in 2023 was the first using the Leadership Standards.

Our Inspection Standards guide inspectors to deliver independent and objective assessments of the treatment and conditions for prisoners. During inspections and investigations, inspectors will seek to identify evidence that standards are being met. The indicators are not an exhaustive list and do not exclude other ways that a prison may achieve a standard.

Inspections completed by the Inspectorate provide a ‘window into prisons’, giving early warning of emerging risks and challenges, and highlighting areas of innovation and good practice that other prisons are encouraged to follow. Inspections play a critical part in ensuring independent oversight of the Corrections system.

The Inspection Standards require inspectors to consider 11 areas of prison life: leadership, reception and admission, first days in custody, escorts and transfers, duty of care, health, environment, good order, purposeful activity, reintegration, and prison staff.

Assessments are guided by four key principles:

• Safety: Prisoners are held safely
• Respect: Prisoners are treated with respect for human dignity
• Purposeful activity: Prisoners are able, and expect, to engage in activity that is likely to benefit them
• Reintegration: Prisoners are prepared for release into the community, and helped to reduce their likelihood of reoffending

Inspections are generally conducted by around six or seven inspectors from a specialist inspections team led by a Principal Inspector, and are supported by the Assistant Chief Inspector. I generally visit each site, pre- or post-inspection to ensure visibility and accountability.

A clinical inspector is part of each inspection to assess access to healthcare of prisoners at each site. The Inspectorate’s clinical team consists of a Principal Inspector and three clinical inspectors, who are all registered nurses. As well as taking part in inspections and contributing to thematic inspections, they also respond to individual complaints and investigate deaths in custody (alongside general inspectors). This clinical input is a point of difference to many international jurisdictions.

From 2024, the Inspectorate started including a ‘notable positive practice’ section in its prison inspection reports. This section, which forms part of the introduction, highlights some of the positive practice our inspectors found at the prison in question. Inspectors look for innovative practices that led to improved outcomes for prisoners and which other prisons may be able to learn from. We may also highlight certain areas of practice which were ‘business as usual’ but where staff were performing well, or under complex or challenging circumstances.

Additionally, the Inspectorate has moved to making overarching findings for key areas (rather than detailed findings for each section of the report). This approach means prison staff and management can see at a glance the findings we consider to be priorities. These overarching findings cover areas which we expect prison leaders, with support from the wider Department, to address in an action plan.

The Inspection Standards document is published on the Inspectorate website and key information is available in five other languages. The Inspection Standards are also printed and placed in prison libraries.

The Inspectorate takes every opportunity to promote the Inspection Standards to Corrections’ staff. It is helpful for prison and management staff to be aware of and familiar with the Standards, to guide their day-to-day work rather than just assist them in being ‘inspection-ready’. Our aim is for the Inspection Standards to be fully embedded in the working knowledge of custodial and health staff.

As Chief Inspector, I engage with Corrections’ site and national leadershipto share information and to promote further transparency, integrity and accountability.

The Inspectorate, while part of the Department of Corrections, is operationally independent which is necessary to ensure objectivity. Since 2019, I have reported directly to the Chief Executive, which further protects and supports the important functions of the Inspectorate.

Inspection Standards Review

When the Inspection Standards were released in August 2019, I made a commitment to review them periodically to ensure they remained responsive to the needs of New Zealand prisoners and reflected the latest United Nations guidance on the standards of care for prisoners and prison conditions.

In 2023, I determined that the Inspection Standards would be comprehensively reviewed for the first time.

I sought the assistance of Steven Caruana, Specialist Advisor OPCAT to the Australian Human Rights Commission, who carried out an extensive review focussing on relevant international developments and best practice approaches from comparable jurisdictions (Australia, England and Wales, Scotland, and Ireland) along with human rights rules and principles from 14 international agreements, and other relevant guidance material. Alongside that, inspection principles pertaining to infection control arising from the COVID-19 pandemic were considered.

Additionally, New Zealand senior lawyer Harriet Farquhar (and a colleague) assisted by reviewing domestic developments since 2019. This review considered seven Office of the Inspectorate thematic inspections and investigation reports, a number of Corrections’ strategic and policy documents, and other sources including the Office of the Ombudsman’s OPCAT Expectations – Corrections (June 2023), Independent Police Conduct Authority publications concerning monitoring places of Police detention, and interim reports from the ongoing Royal Commission of Inquiry into Abuse in State Care (noting that no final report has yet been released by the Inquiry).

Following these reviews, the Inspections Standards were assessed to ensure that any changes were appropriate in the New Zealand corrections environment. We took the opportunity to consolidate the document and, importantly, ensure it could be used in a practical way by the inspectors who visit prisons. We took a multidisciplinary approach, with input from Inspectorate staff with health, custodial, legal and communications backgrounds. The Inspection Standards were also reviewed from a disability lens by an external expert.

Previously, the Inspection Standards had separate sections for women and transgender prisoners. With the new approach and taking into consideration that all standards apply to these two groups, these sections have been integrated into the document as a whole. Specific gender-responsive standards and indicators continue to exist for these two groups, but in a more unified way.

The Inspection Standards continue to be informed by a wide range of international principles: the Nelson Mandela Rules, HM Inspectorate of Prisons Expectations, the European Prison Rules, the Bangkok Rules and the Yogyakarta Principles.

The review was also informed by a number of other international principles, including:

• The United Nations Basic Principles for the Treatment of Prisoners
• The United Nations Body of Principles for the Protection of Persons Under Any Form of Detention or Imprisonment
• The United Nations International Convention on the Elimination of All Forms of Racial Discrimination
• The United Nations Convention on the Rights of Persons with Disabilities
• The United Nations Convention on the Rights of the Child
• The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment: Women in prison
• The Guiding Principles for Corrections in Australia
• Inspections standards documents from corrections’ oversight jurisdictions in Western Australia, New South Wales, the Australian Capital Territory, and Queensland.

I intend to continue to periodically review these Inspection Standards to ensure they reflect developments in both domestic and international jurisdictions for the treatment of prisoners.

We will continue to make improvements where appropriate. One likely significant development under consideration will be the involvement of people with lived experience of both disability and imprisonment to participate in future inspections.

We are still on our incremental journey with the Inspection Standards. Since the commencement of our programme of inspections in 2017, it is important that we recognise that we have made significant progress. The prison inspection process has been a learning journey for us and also for the Department of Corrections, which receives these inspection reports and is given the opportunity for continuous learning.