Neil Sands
The High Court has flexed its muscles by ruling that staff shortages are not a lawful excuse for failing to give inmates at Auckland Prison their daily exercise entitlement, warning Corrections boss Jeremy Lightfoot he will be personally liable to face contempt proceedings — punishable by fine or imprisonment – if the issue is not addressed.
Justice Jason McHerron acted after hearing evidence that oversight bodies, including the Ombudsman, had repeatedly raised concerns about prisoners at the maximum-security facility not receiving their minimum legal entitlement to one hour’s physical exercise every day, in the open air if weather permitted.
The court was told that Corrections had not fixed the problem and it felt an upcoming trial involving Auckland inmates seeking compensation for being locked up without exercise –not scheduled until May 2027 – was the best way to determine how minimum requirements should be enforced.
McHerron rejected that submission and imposed a more immediate timetable on Corrections, taking the unusual step of issuing a writ of mandamus against the Corrections chief executive. A mandamus writ is an order compelling an official to carry out his or her public duty.
“Ultimately, I am persuaded that there needs to be a way of holding the chief executive accountable to the provision of minimum exercise entitlements at Auckland Prison that does not take several years and a lengthy trial to enforce, merely through the mechanism of damages for a breach occurring several years earlier,” he said in a decision published on Wednesday.
“Neither would a declaration suffice, given the chief executive’s ongoing non-compliance despite Ombudsman recommendations and court decisions.”
‘Dangerous and difficult to manage’
McHerron spelled out the action required of Lightfoot, saying: “The chief executive is required to comply with the obligation to provide minimum physical exercise entitlements. Lack of staff is not a lawful reason for not doing so.”
He said that barring the plaintiffs from seeking a writ of mandamus against Lightfoot “would confer an unintended immunity upon the executive government”.
He was also unequivocal about the potential consequences for Lightfoot, who has led Corrections since 2020, noting: “Disobedience to a mandatory order can amount to a contempt of court, punishable by fine or imprisonment.”
McHerron said he was encouraged that Lightfoot had authorised resourcing and management improvements at Auckland Prison that would allow it to meet the minimum exercise requirements.
Corrections’ commissioner of custodial services, Leigh Marsh, said the problem related to two units within the prison and it was being addressed on an interim basis through roster changes while work progressed to secure more resources and appropriately trained staff.
Marsh said the prison managed some of New Zealand’s most dangerous and difficult-to-manage people, with some requiring five staff each to ensure safety when they were unlocked.
The danger was underlined this week when a prisoner died after allegedly being assaulted in late November by a fellow inmate, who is now facing a manslaughter charge.
“The safety of staff and prisoners must be our top priority and given the serious violent incidents that occur in these units, including damage to property and an attack that tragically resulted in the death of another prisoner, we cannot afford to take any risks,” Marsh said.
Super-maxi to stay
The High Court case comes just weeks after a parliamentary select committee revealed that Corrections had rejected a call from the Ombudsman to scrap the Auckland Prison unit housing New Zealand‘s most notorious offenders, but was taking steps to make life more bearable for inmates.
The Prisoners of Extreme Risk Unit (PERU), known as super-maxi, was set up at Auckland Prison in 2019 to accommodate Christchurch terrorist Brenton Tarrant and now houses more than 10 inmates.
Inspectors from the Ombudsman’s office made three visits in 2023 and 2024, finding conditions were “cruel, inhuman, and degrading”, possibly breaching the United Nations convention against torture.
Concerns included “prolonged, and potentially indefinite, solitary confinement”, “minimal time outside the cells”, “disproportionate use of force”, and a lack of transparency about how inmates were assigned to the unit.
Peter Boshier
At the time, Chief Ombudsman Peter Boshier made three recommendation – that Corrections “stop the PERU operating model”, or give PERU inmates more time out of their cell, with meaningful human contact, and that any specialist Corrections unit ensure “safe, humane, transparent, and fair management of people in custody”.
In a report published by the Justice Select Committee this month, Corrections said it could not meet the first recommendation to scrap PERU, but it was working on the other two.
In justifying keeping the unit, Corrections said: “The risks go beyond the immediate ones of extreme interpersonal violence or violent extremism; these people have been suspected of or were involved in transnational organised crime, and have considerable capability to influence others. Therefore, it is not suitable to manage these prisoners in the mainstream population or a directed segregation unit.”
Boshier’s replacement John Allen, who took over earlier this year, told the committee he believed there were still significant problems with PERU but he saw improvements during a visit to the unit in September.
He told the committee that the most significant change was allowing some prisoners to meet and engage with another prisoner (known as restricted association).
“The Ombudsman told us that increasing access to meaningful human contact has positively affected the mental health of prisoners,” the report said. “He said that one prisoner spoke to him ‘about hope, how overwhelming it was after years of not having engagement to be in the larger yard with another person’.”
Read a case note on the High Court decision here.
0 Comments