New Zealand

b) In practice

Corrections has recently installed and operationalised body-scanning technology at three prison sites (two women’s and one men’s facility). This technology is offered to people in prison at these three sites as an alternative to strip-searching.

Corrections has indicated that it intends to install body-scanning technology across all sites, subject to necessary infrastructure changes. Body imaging technology that is less intrusive than strip-searching helps to promote personal dignity and wellbeing for both people in prison and Corrections staff, who have reported more positive outcomes since this technology was introduced. This is particularly important for imprisoned women, many of whom have experienced domestic and sexual violence, exploitation and victimisation before they have entered prison.16

Both strip searches and body-scanning searches must only be conducted by a Corrections officer who is the same sex as the person being searched, in the presence of another officer or Police constable of the same sex, and cannot be conducted in view of any person who is of a different sex to the person being searched.17 Whilst these same-sex staff requirements are a welcomed safety measure, the CNPM notes they are based on an assumption that no staff member of the same sex will exploit a person in prison.

Solitary confinement, isolation

The Corrections Act 2004 allows for ‘segregation’ – that is, the denial or restriction of a person’s opportunity to associate with others, including other people in prison, friends and family/whānau, as well as staff. While review processes exist, they allow for segregation to be continued indefinitely.18

In his submission to the UN Committee against Torture for New Zealand’s 7th periodic review (2023) the Chief Ombudsman observed: 

“If segregation processes do not adequately ensure meaningful human contact, time out of cell and opportunities to exercise in the open air, then the ‘segregation’ allowed for under the Corrections Act may effectively constitute solitary confinement, and for periods longer than 15 days, prolonged solitary confinement.

Furthermore, the minimum entitlements afforded to people in custody under the Corrections Act do not necessarily provide safeguards against solitary confinement. In particular, while there is a Minimum Entitlement to at least one hour of physical exercise (in the open air if weather permits), in line with Rule 22 of the Mandela Rules, there is no Minimum Entitlement to unlock hours/time outside of cell to ensure that no person is confined for 22 hours or more or that where this occurs it is recorded and monitored to allow for potential solitary confinement to be identified, ensure compliance with international human rights standards, and prevent prolonged or indefinite solitary confinement.”

In 2016, the CNPM invited Dr Sharon Shalev to undertake a review of seclusion and restraint practices in New Zealand’s places of detention. Dr Shalev’s 2017 report, Thinking Outside the Box?: A review of seclusion and restraint practices in Aotearoa New Zealand, revealed the high use of seclusion and restraint, and an overrepresentation of Māori in seclusion and in prison segregation units. 

Dr Shalev’s report found that at Auckland Region Women‘s Corrections Facility, 78% and 75% of segregations in the Separates and Management Units respectively were of Māori women. As many as 93% of segregations lasting 15 days or longer in the Management Unit were of Māori or Pacific women. The report also concluded that there were stark physical environments and impoverished regimes in seclusion, secure care and segregation units, and in a number of cases no access to basic fixtures such as a call-bell to alert staff, a toilet or fresh running drinking water.

In 2020, Dr Shalev published Time for a Paradigm Shift: A follow-up review of seclusion and restraint practices in Aotearoa New Zealand. The report indicated that while there had been strong commitments from the detaining agencies to reduce the use of seclusion, it continued to be embedded in their practices. The overall picture was found to be disappointing with ongoing issues that had not been addressed, such as: a) seclusion (or solitary confinement) continues to be used too often, for too long, and not always with clear justification; and b) seclusion continues to be disproportionality used with Māori and Pacific Peoples in prisons (where the practice is known as ‘segregation’).

Following the concerns identified in Time for a Paradigm Shift, in 2021 Dr Shalev produced First, Do No Harm: segregation, restraint, and pepper spray use in women’s prisons in Aotearoa New Zealand. Among Dr Shalev’s key findings was the high use of solitary confinement and other punitive practices towards women. In 2019, women were segregated significantly (73%) more than men in New Zealand’s prisons. While the majority of segregations were relatively short, there were 101 occasions in 2019 where women spent 15 days or longer in segregation, a period defined as ‘prolonged’ and prohibited as a form of torture or cruel, inhuman or degrading treatment or punishment in the UN Nelson Mandela Rules. Māori and Pacific women were disproportionately segregated in Management and Separates Units used for control and punishment.

The Office of the Inspectorate released a report in July 2023, focused on Separation and Isolation (although not exclusive to women in prison). This report found that between 1 October 2020 and 30 September 2021, 29% of people in New Zealand’s prisons experienced a time when they had to be separated from the rest of the prison population. These people had been separated from the mainstream population for a range of reasons, including: perceived risks from other people in prison; perceived risks to staff and other people in prison; as a penalty for a disciplinary offence; because of their mental and physical health, including being at risk of self-harm; and as part of Corrections’ response to the Covid-19 pandemic.

The Inspectorate called on Corrections to mitigate the isolation experienced by these people in prison; to collect accurate data and report annually on all people who are unable to associate with others; and to implement an assurance framework for these people. Corrections accepted the recommendation, among others, that it “must recognise the profound isolation experienced by segregated and at-risk prisoners, including that many are likely to be subject to solitary confinement as that term is defined by the Mandela Rules.”

Use of means of restraint and use of force

Dr Shalev’s 2020 report Time for a Paradigm Shift: A follow-up review of seclusion and restraint practices in Aotearoa New Zealandfound some positive developments including an end to the use of ‘tie down’ beds in prisons. However, the data on the use of force and restraint was concerning.

In 2023, Corrections provided the CNPM with data sets related to the use of force (including the use of less-lethal weapons) across all prison sites from 2016 to 2022 disaggregated by gender, ethnicity, and prison location, as well as type of force.19 This data shows that the use of force has increased within prisons since 2016, that incidents involving the use of force have been occurring more frequently in women’s prisons, and that Māori and Pacific people are disproportionately affected in these incidents. The CNPM has questioned the necessity and reasonableness of the high use of force against women in prison, against Māori, and against people of Pacific origin. 

In October 2021, the Office of the Inspectorate released its Special investigation into the management of three wāhine at Auckland Region Women’s Corrections Facility. This report found systemic failures in how these women were managed, which developed into a regime that was highly restrictive, failed to follow procedural safeguards and natural justice requirements, and was contrary to minimum entitlements including through prolonged disciplinary confinement and segregation, withholding of food and excessive use of handcuffs. Two of these women were also the subject of legal proceedings regarding their subjection to a process of “cell extraction”, whereby Corrections officers pumped pepper spray into their closed cells by means of a fog delivery device known as a “Cell Buster”. The Court held that the relevant provisions under the Corrections Amendment Regulations (2009, 2012, 2017) were not consistent with the humane treatment of people in prison.20 In response to the Court’s decision, the Government amended the Corrections Regulations to strengthen provisions relating to the use of less-lethal weapons.21 The CNPM has raised concerns with Corrections that the Amendment Regulations do not comply with international human rights law obligations, in particular because they continue to permit the use of pepper spray in response to passive resistance, in confined spaces, and against individuals identified as high risk (such as those with underlying injuries, mental health conditions, respiratory conditions, or pregnancy), as well as the use of restraints following the deployment of pepper spray. The CNPM continues to call for the elimination of the use of pepper spray and other less-lethal weapons in New Zealand’s prisons. 

Access to mental healthcare

During In his self-initiated investigation – Kia Whaitake | Making a Difference (2023), the Chief Ombudsman outlined several complexities and risk factors that are more prevalent among women in New Zealand’s prisons population compared with men:

• 62% of women in prison have had both (comorbid) mental health conditions and substance addictions across their lifetime (compared with 41% of men in prison).

• 75% of women in prison have been diagnosed as having mental health needs within the last 12 months (compared with 61% of men in prison).

• 46% of women in prison have lifetime alcohol dependence (compared with 35% of men).

• 52% of women in prison have a lifetime diagnosis of post-traumatic stress disorder (compared with 40% of men in prison).

• 68% of women in prison have been the victim of family violence.

• 53% of women in prison have experienced sexual assault (compared with 15% of men).

A key contributor to poor mental wellbeing for women in detention is disruption of contact with their community and family, particularly their children. The majority of women in New Zealand prisons are mothers, and are more likely than their male counterparts to have lived with their children prior to imprisonment and played a central role in the care of their children.22 They have a strong emotional need for regular contact with their children, and maintained social contact is essential to their prospects of re-integration upon release. In all but exceptional cases it will also be in a child’s best interests that they maintain direct connections with their mother. 

In his recent submission to the CAT Committee for New Zealand’s 7^th periodic review, the Chief Ombudsman relevantly observed “[…] that opportunities for maintaining family contact are inadequate, with many women unable to receive visits due to distance and associated travel costs. Early lock up times often prevent many women from telephoning their children after they finish school. Limited visits combined with restricted access to telephones and an unsatisfactory mail system affect women’s mental wellbeing.”

This issue has been exacerbated for over 60 women who have been transferred from Arohata prison (in the lower North Island) to women’s prisons in Christchurch (in the South Island) and Auckland (in the upper North Island) from September 2022. This has serious repercussions for many women who are now located further from their homes, significantly limiting the practicality of visits from their children and families. 

Corrections transferred these women because of staffing shortages. However, the New Zealand High Court found that resource constraints cannot legitimise the unlawful treatment of these women.23 The Court earlier held that Corrections had discriminated against these women when transferring them, because it failed to take their individual circumstances into account, disrupted their local connections, and prevented their access to rehabilitation treatment programmes.24 The Crown has filed a limited appeal in relation to this proceeding, regarding the need to consider individual circumstances when deciding whether to transfer people in prison to manage national numbers.25 

To mitigate the harmful effects of detention, women require adequate protection and support and should not be subjected to measures which are likely to exacerbate their distress.