Home > The Body Politic > Questions over Serco’s “independent” monitors and it’s Contract with the Crown

Questions over Serco’s “independent” monitors and it’s Contract with the Crown

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Questions have arisen regarding the  supposed “safe-guards” Monitors at Mt Eden Prison, and at least one aspect of the Serco-Corrections Dept Contract.

According to section 21.2 of the contract between Corrections and Serco, between two to three Monitors were tasked with;

(a) compliance with this agreement;

(b) the accuracy of the Contractor’s invoices or reports relating to the Services;

(c) processes and procedures of the Contractor or any subcontractor relevant to the provision of the Services;

(d) anything else relating to the Services.

Also according to the contract, the monitors were ostensibly appointed by Corrections, though whether they are paid by Corrections or Serco depended on “… if the Service Audit reveals that the Contractor has breached this agreement” (p21.3), in which case “then the Contractor must pay the Crown’s costs in relation to the Service Audit“.

However, on 2 May, TV3’s ‘The Nation’ interview between Lisa Owen and Corrections Minister Sam Lotu-Iiga had this interesting exchange;

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Corrections Minister Peseta Sam Lotu-Iiga on The Nation

Corrections Minister Peseta Sam Lotu-Iiga on TV3’s ‘The Nation‘, 2 May 2015

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Owen: Okay, well, who’s monitoring their performance? Who makes sure that they reach their targets and that they’re assessing themselves fairly?

Lotu-Iiga: Okay, they are actually more scrutinised than any public prison. They’ve got two monitors— there will be two prison monitors in each of the prisons.

Owen: Who employs those monitors? Who employs the monitor in the prison?

Lotu-Iiga: There will be— If I can just finish, there will be an ombudsman. They will be subject to complaints—

Owen: So the monitor in the prison, Minister, just to be clear, the monitor in the prison; who employs the monitor?

Lotu-Iiga: My understand is that the monitors are based in the prisons, but they report to the Department of Corrections.

Owen: Who employs the monitor and pays their wages, Minister?

Lotu-Iiga: Well, I don’t have those facts on me, but they do report—

Owen: Well, I do. The person who employs the monitor— the person who employs the monitor is the company, Serco. They employ the monitor, and pay their wages.

Lotu-Iiga: Okay, can I just finish—

Owen: So how is that an independent analysis?

Lotu-Iiga: Well, they’re reporting to the Department of Corrections. We have the ombudsman as well. We have the chief inspectorate, if I can say, the chief inspectorate is based in the Department of Corrections. They will be also subject to the scrutiny and the questioning and the examination through the chief inspectorate. That is no different, can I say, to any other prison.

Owen: But you’ve just told me that they’re going to have a higher level of assessment monitoring—

Lotu-Iiga: Well, they do.

Owen: —by saying that they’ve got this person in the prison. But they’re actually employed by the people who run the prison.

Lotu-Iiga: They’re employed by Serco, but they are reporting back to, as I’ve just said, someone in the Department of Corrections. So they’ve got not only two monitors, they’ve got the ombudsman, they’ve got the chief inspectorate and also the office of the Auditor General. That’s no different to any other prison in this country.

Whoever employs (employed?) the Monitors at Mt Eden, they do not appear to have forwarded Incident Reports of violence and other criminal activity taking place at the facility. The prompt forwarding of Incident Reports is also a prime feature of the contract between Serco and Corrections;

22.2 Incident reporting requirements:
If an Incident occurs, the Contractor must report the Incident in accordance with the requirements set out in Schedule 5.

[…]

Schedule 5
Appendix 1
Timecode1

Immediate notification to “Incident Line” (04) 473 1745 anytime day or night, followed by IOMS incident report (or in the event of IOMS being unavailable an E.08.01.F1 Notification of  incident form (which is contained in the Department PPM)) within 2 hours of the incident being advised.

The prevalence of violence (including alleged  “dropping”); “fightclubs”;  injuries; at least one death; drug use; home-brew production*; contraband such as cell-phones; and now three prisoners arrested for involvement in gang-related drug activities – does not seem to have impacted on Mt Eden’s high ranking on Corrections’ Prison Performance Table – the most recent being for twelve months ending March this year;

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Mt Eden prison - prison performance table - corrections department - serco

(Hat-tip: Martyn Bradbury, for above chart)

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Since April 2014, Mt Eden has rated “Exceptional” in previous performance grades. It’s rehabilitation rates at 96.75% – which in itself is odd, as Mt Eden is also a Remand Prison, and 676 out of 952 prisoners (as at 31 December 2014) are on remand; awaiting trial;  and have not been convicted of any crime.

It is fairly obvious that as more and more stories of violence and other criminal activity emerge, Serco’s statistics cannot be taken at face value.  As the Herald’s David Fisher reported on 27 July;

Serco had previously been rated at the highest levels of safety despite the allegations of violence inside Mt Eden prison. It was contracted to carry out its own performance management reviews – and was also responsible for telling the Department of Corrections when its pay should be docked.

One means by which assault figures could be ‘fudged’ by Serco was illustrated by Fisher in the same report;

Over the past week, cases have emerged of prisoners being transported from the Serco prison to other institutions arriving with serious injuries.

The Weekend Herald reported a case in March this year in which a prisoner sent to Manawatu prison was found to be needing urgent hospital care when he arrived.

There are  six questions that beg to be answered by the various inquiries currently under way;

1.

Why did the Monitors at Mt Eden not report incidences of violence – including one death – as well as other criminal activity? Monitors were tasked with reporting untoward events such as assaults to the Corrections Department. Why was this not done so?

2.

Considering the assaults, drug taking, and other other instances of illegal activity taking place at Mt Eden, how could that facility gain a high “Exceptional” rating on the Prison Performance Table? Do Corrections Dept officials, and the Corrections Minister have faith in the accuracy of Prison Performance data? And why did the Monitors not challenge those high rankings?

3.

Why did the Monitors not report that injured prisoners were being transferred out from Mt Eden to other correctional facilities? Why did they not advise the Chief Executive of Corrections (Ray Smith) that by transferring out injured prisoners, that this would inevitably result in favourable statistics for Mt Eden.

4.

Who were the Monitors directly responsible to; Serco or Corrections?

5.

Was there a deliberate, organised policy of silence, between Serco, Corrections Dept, and Minister Sam Lotu-Iiga’s office, to suppress reports of violence and other criminal activity at Mt Eden, because otherwise disclosure of the truth would damage the credibility of this government to pursue it’s agenda for further privatisation of services?

6.

There is provision in the contract between Serco and Corrections for a good faith relationship between the parties;

SCHEDULE 1
WORKING TOGETHER

2.1
In recognising the significance of the relationship between the Crown and the Contractor from an operational and contractual perspective, the parties agree to work cooperatively and collaboratively.

The parties will:

(a) ensure that their communications are open and honest;
(b) proactively raise, and respond to, issues with a view to prompt and efficient resolution;
(c) take a constructive and open minded approach to points of difference; and
(d) treat each other with respect at all times.

The degree to which Serco has with-held information from it’s partner – the Crown – should be seen by many as being far from “open and honest“; has failed to “proactively raise, and respond to, issues“; and certainly not treated the Crown “with respect at all times”.

So why is Schedule 1 not grounds to break the contract with Serco?

Not only has Serco apparently circumvented the spirit, as well as the intent, on their contract with Corrections, but it has apparently connived to suppress information, as Kim Vinnell reported for TV3 on 24 July;

There are fresh revelations private prison operator Serco went out of its way to make sure its squeaky clean record stayed that way.

In Mt Eden prison where inmates are king, are guards who say they’re understaffed and afraid.

“It’s about time we all spoke out and say what it’s actually like,” says one guard, who spoke to 3 News on the condition of anonymity.

He says when prisoners or guards break the rules, management would rather official reports tell a different story.

“You’re told to state the facts, but to leave all other things out of it.

“They go missing off the system several times, or they get edited and you’re not told that they’re edited.”

The Government says it didn’t know what was going on, despite the fact three prison monitors – who are Corrections employees – have been there since Serco’s first day.

Under the Corrections Act, prison monitors must report to the chief executive at least every four months. The sole purpose of their job is to report on prison management and any concerns they may have about the prison’s running.

The government claims “it didn’t know what was going on“.

In which case, not only was the Correction Minister’s office kept in the dark – but also the entire Corrections Department. Is this feasible?

It is inconceivable that National Ministers did not know the depth of problems afflicting Mt Eden and Serco.

In which case, this government was actively complicit in a cover-up, to protect it’s credibility with voters – and to  safeguard it’s privatisation agenda.

This scandal may yet engulf the government and bring it down, forcing an early election.

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* Note: Home-brew involves fermentation to produce alcohol. The process creates carbon dioxide and strong odours. How is it that staff at Mt Eden could not smell fermentation processes within the facility?

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Addendum1

Email to Corrections Minister, Peseta Sam Lotu-Iiga, on 28 July;

Kia ora Minister  Lotu-Iiga,

I am querying the appointment on Monitors for Mt Eden Prison, which up till yesterday (27 July), was managed by Serco.

Can you please advise  regarding the following;

1. Who employs the Monitors? Is it Serco or the Corrections Department?

2. Who do they report to; Serco or the Corrections Department?

3. Who pays their salaries; Serco or the Corrections Department?

4. Are the Monitors responsible for providing information to Corrections, which forms the Prison Performance Table? If not, who provides that information?

5. Are the Monitors still employed at Mt Eden? If not, why not?

6. Have the monitors made any Incident Reports to Corrections, as required Prison under the Management Contract for Mt Eden Corrections Facility (para 22.2). If so, what Incidents were reported and when?

Please respond asap to this OIA request, as this is a matter of some urgency.

A response from  Minister  Lotu-Iiga’s Private Secretary acknowledged  my email on the 29th, advising;

As the information you have requested is held by the Department of Corrections, I have transferred your request to the Department. This decision is in accordance with section 14 of the Official Information Act 1982.

The Department is required to provide you with a response within 20 working days of receipt of my transfer letter.

It is likely that Corrections Dept will use a provision within the Official Information Act to request an extension to the 20 Working Day time-limit.

Addendum2

Schedule 11 (Information Requests) of the Serco-Corrections Dept Contract, stipulates;

Official Information Act (OIA) requests

These can often be requested by journalists wishing to probe deeper into issues they believe the public may be interested in. Requests under the OIA are managed within the statutory timeframes described in the legislation – this is generally 20 Working Days for a response.

OIA requests, by law, must be facilitated as soon as possible. The “20 Working Days” option is a maximum – not a target response time to work to.

Part 2, Section 15 of the Act clearly and explicitly states that responses to OIA requests “shall, as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received” be “given or posted to the person who made the request notice of the decision on the request“.

It is unclear how the Serco-Corrections Dept Contract complies with requirements contained within the Official Information Act to provide responses “ as soon as reasonably practicable“.

Addendum3

Considering that the Schedule 11 (Information Requests) of the Serco-Corrections Dept Contract, appears to contravene the spirit, intent,  and letter of the Official Information Act (Part 2, Section 15), I wrote to the Office of the Ombudsman to seek their advice;

Kia ora,

I understand that your Office has been looking into a possible actions by various government Ministers to willfully and deliberately delay replying to OIA requests. Part 2, Section 15 of the Official Information Act states that responses to OIA requests;

“…shall, as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received” be “given or posted to the person who made the request notice of the decision on the request“.

I have recently been looking into the Prison Management Contract for Mt Eden Corrections Facility   that applies between the Corrections Dept (acting on behalf of The Crown) and a private company, Serco.

Schedule 11 (Information Requests) of the Serco-Corrections Dept Contract, stipulates;

Official Information Act (OIA) requests

These can often be requested by journalists wishing to probe deeper into issues they believe the public may be interested in. Requests under the OIA are managed within the statutory timeframes described in the legislation – this is generally 20 Working Days for a response.

It is my contention that the Contract’s reference to “Requests under the OIA are managed within the statutory timeframes described in the legislation – this is generally 20 Working Days for a responseis counter  to the spirit, intent, and letter of the Official Information Act.
The Act clearly states that OIA requests should be actioned “as soon as reasonably practicable” and that “20 working days” is a maximum time limit, not a target time-frame to work toward.
In your view, is the Contract accurately reflecting the Official Information  Act?
If not, how does that impact on the legality of the Contract itself?
I would welcome your advice on this matter.
This blogger will keep readers advised on further developments.

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References

Corrections Dept: Prison Management Contract for Mt Eden Corrections Facility

Scoop  media:  The Nation – Corrections Minister Sam Lotu-Iiga

NZ Herald: Head Hunters raids – Police investigating former Mt Eden prison guard

Corrections Dept: Prison Performance Table

NZ Herald: Serco docked $565k over violence in prisons

Corrections Dept:  Prison facts and statistics – December 2014

TV3: Mt Eden prison guards ‘understaffed, afraid’

Legislation.govt.nz: Official Information Act 1982

Previous related blogposts

The closure of three prisons and loss of 262 jobs – five issues for the National govt

“The Nation” reveals gobsmacking incompetence by Ministers English and Lotu-Iiga

Letter to the editor – If Serco was the answer, what was the question?

On private prisons

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corrections - serco - private prisons

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This blogpost was first published on The Daily Blog on 30 July 2015.

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  1. Samwise
    4 August 2015 at 10:52 am

    There is a whiff of something corrupt about Serco and National’s awarding of the contract. Add to that a pathetic standard of staffing levels and monitoring, and the inevitable was bound to happen.

    Well researched as usual from you, Frank!

  1. 22 September 2015 at 8:01 am
  2. 9 October 2016 at 9:51 am
  3. 9 October 2016 at 9:57 am

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