Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248 (18 August 2023)

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-579
[2023] NZHC 2248

UNDER	the Judicial Review Procedure Act 2016
BETWEEN	ELETISE NATASHA WALLACE, NICOLA RATU, RACHEL VINCENT, DOMINIQUE CARROLL, MIHI ISABELLA BASSETT, TIPARE ROPITINI, TARIANA JONES and LARA ATKINS Applicants
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	31 July – 2 August 2023
Appearances:	V E Casey KC and A L Hill for the Applicants S M Kinsler, M J Mortimer-Wang and C S A Fleury for the Respondent
Judgment:	18 August 2023

[1] The applicants in this claim for judicial review were, until the decisions they challenge, prisoners who were serving sentences at Arohata Prison (Arohata) in Wellington. They were transferred to Christchurch Women’s Prison (Christchurch Women’s) or Auckland Region Women’s Corrections Facility (Auckland Women’s) from 20 September 2022. They bring these proceedings challenging the lawfulness of the decisions made on behalf of the respondent leading to these transfers.

[2] The applicants argue that Arohata has been closed as a prison for sentenced women, and that it now operates only as a remand facility. They advance four overlapping grounds of review, namely:

[3] The applicants filed a number of affidavits in support of their claim. That included eight affidavits from women who were transferred out of Arohata, including supplementary affidavits describing what had happened to them after their original evidence provided in support of an unsuccessful interim relief application. Affidavits were also filed by witnesses who have knowledge of the circumstances affecting women prisoners at Arohata and elsewhere, including:

[4] Evidence was also given by the applicants’ solicitor providing further relevant information.

[5] Evidence for the respondent was given by Mr Leigh Marsh, the Deputy National Commissioner at the Department of Corrections (Corrections) who had responsibility for the decisions leading to the transfer of the women from Arohata, Ms Phillipa Carey the Prison Director at Arohata, Ms Karen Gillies the Manager of Women and Youth at Corrections, and Ms Sandie Finnigan the Manager of Addiction Services at Corrections. This evidence did not directly respond to the affidavit evidence filed by the women prisoners from Arohata.

[6] In the week prior to the hearing of the claim for judicial review I heard an application to cross-examine the respondent’s witnesses. At the conclusion of that hearing I indicated that the application would be granted in respect of one issue. When

[7] Cross-examination is not available as of right in judicial review, but it can be permitted by leave.¹This is a consequence of the practices applied under the legislation regulating judicial review procedure, now the Judicial Review Procedure Act 2016, which operate in the nature of a procedural code.²The procedure is managed in a way that ensures a simple, untechnical and prompt approach to judicial review.³The requirement for leave to cross-examine arises under that approach because fact finding is usually not central to the Court’s role in judicial review.⁴ Challenges can usually be addressed on the decision-making record. Cross- examination will nevertheless be allowed if it is necessary to fairly dispose of the challenge.⁵This involves considering the necessity for cross-examination and the requirements of justice.⁶Because it is a leave requirement, and accordingly involves a discretionary decision by the Court, there is no prescriptive test that has been formulated for the grant of leave. But the requirement that judicial review remain simple, untechnical and prompt will remain central. Given that, it may be that a Court may be assisted by addressing the following matters:

⁴Geary v Psychologists Board [2009] NZCA 134, [2009] NZAR 338, (2009) 19 PRNZ 409 at [22].

[8] The Court should not hesitate in adopting what may be described as a robust approach to making findings based on the affidavit evidence, and only grant leave when it is truly necessary. This can include drawing adverse inferences where appropriate.⁷There is also much reduced scope for basing findings on a lack of challenge to affidavit evidence. Section 92 of the Evidence Act 2006 can have only very limited application given that cross-examination is not available as of right.⁸The Court should make findings on the balance of probabilities on the basis of the affidavits and available documents. That task will be much easier when there is a formal decision paper.

[9] A duty of candour also applies to decision-makers. It is “... vital for the Court to be as fully informed as reasonably possible of the facts and issues as they presented themselves at the time to the authority whose decision is under review”.⁹This means there is a duty of candour arising in relation to the evidence they file.¹⁰That duty also applies to other stages of the proceeding.¹¹The nature of this duty was recently explained in reasonably elaborate terms by Fordham J in R (On the application of Police Superintendents’ Association) v Police Remuneration Review Body.¹² New Zealand’s approach to judicial review may involve a simpler principle — that there is a duty on the decision-maker to ensure that its disclosures and evidence are full and frank and that the relevant decision and the reasons for it are transparent. Compliance with that duty will mean that applications for discovery, interrogatories, and cross-examination should be minimised.

[10] The applicants were highly critical of the respondent’s affidavit evidence, arguing that it did not give an accurate account of the decisions that were made, and the consequence of the decisions. That was particularly so in relation to the affidavit

⁹Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 346.

¹¹Bain v Minister of Justice [2013] NZHC 2123, [2014] NZAR 892 at [37]–[43].

¹²R (on the application of Police Superintendents’ Association) v Police Remuneration Review Body

[11] The application for cross-examination identified a number of factual matters that were in dispute, and to which the application for cross-examination was directed. I accepted that one of the factual disputes, in particular, should be the subject of cross- examination. This related to the extent to which the individual circumstances of the women prisoners had been taken into account in the transfer decisions. Mr Marsh had given evidence the individual situations of each prisoner were considered, that when approving the transfer he had paid close attention to the whānau and support connections of the women being transferred, and that nine of the 51 sentenced women had been determined unsuitable for transfer for reasons personal to their individual circumstances. I accepted there was some uncertainty about this evidence given other evidence, and I considered the factual uncertainty was central to the applicants’ challenge based on the alleged failure to take into account relevant considerations. That uncertainty arose from a less clear picture emerging from Mr Marsh’s further affidavit, the affidavit of Ms Carey, and the contemporaneous documents. In the circumstances I granted leave to cross-examine Mr Marsh on that issue, and subsequent to his cross-examination I gave leave for Ms Carey to be cross-examined on that issue as well.

[12] The cross-examination revealed a more complex position from what had been suggested from Mr Marsh’s first affidavit.¹⁴In particular, as I will outline below, I conclude that the individual circumstances of the women prisoners at Arohata were not considered when it was determined that they would be transferred to other prisons. Individual consideration was limited to an assessment of where and when they would be so moved. The women who were not transferred at all were only those who were likely to be released from Arohata in any event. The cross-examination also revealed an uncertainty over who had actually made the statutory decision to transfer, a matter I return to below.

[13] I did not grant the applicants’ application for cross-examination on a number of other topics. Whilst I accept that there may have been questions of fact that arose from the evidence, it is a question of balance to determine the benefit to be gained by cross-examination given the nature of the dispute and the grounds of review in issue. I ultimately determined that the potential benefit in allowing cross-examination on the other matters did not outweigh the implications involved in permitting fuller cross- examination. I understand Ms Casey KC was less concerned about some of those issues as a result of my indication that the Court was not obliged to accept affidavit evidence from the respondent simply because it was not challenged by way of cross- examination.

[14] Corrections has responsibility for New Zealand’s prison system. In recent years there has been a developing problem with understaffing at the prisons. Ordinarily the prison network requires 3,850 to 4,050 corrections officers to run effectively. Staffing levels have been much lower than this. By mid-September 2022 Corrections had only 3,020 officers able to be deployed.

[15] There are significant implications arising from operating prisons at substantially reduced staffing levels. First, an adequate number of corrections officers is necessary for staff and prisoner safety. Secondly, the Act sets out minimum requirements. Section 69 provides:

[16] Each of the identified provisions then provides detail concerning the minimum entitlement in question. For example, s 70 provides that every prisoner must be entitled to at least one hour of physical exercise a day, and s 73 provides that the prisoner is entitled to receive at least one private visitor each week for a minimum duration of 30 minutes.

[17] The serious staff shortages mean that some of the minimum entitlements are not being provided. That is a matter of considerable concern. In-person visits by visitors have not been taking place. The evidence is not clear on the full extent, or the period of time when this has not been occurring. My impression is that it is occurring over almost all of the prison network, and the problem has existed for a considerable period of time. It may be that it has existed since COVID-19 has limited the ability to allow such visits — that is for a period of years. At Arohata there were significant staffing shortages averaging 59 per cent of normal staffing from mid-2021 to mid- 2022. Arohata prisoners were experiencing limited unlock times, programme opportunities and visits, with face-to-face visits from family members only able to be facilitated as “one-offs”.

[18] The minimum entitlements are important because they reflect minimum standards. Pursuant to s 5(1) of the Act, the purpose of the corrections system includes providing corrections facilities in accordance with requirements that are based upon the United Nations Standard Minimum Rules for the Treatment of Prisoners,¹⁵and a system that assists with the rehabilitation of offenders and their reintegration into the community within the resources available. Under s 6(1)(i) contact between prisoners and their families must be encouraged and supported so far as reasonable and practicable and within resources available to the extent that such contact is consistent with the maintenance of safety and security requirements.¹⁶Given these concepts, which are reflected in the later more detailed provisions, a departure from minimum standards in relation to contact between the prisoner and visitors is a matter of significance. For there to have been no in-person visitor contact for prisoners for a period of years is a matter of considerable concern.

[19] Mr Kinsler indicated that reliance is placed on s 69(2) as a basis for the respondent saying that the failure to provide prison visits in accordance with s 73 is not in breach of the Act. Whether that subsection contemplates a longer term or systemwide non-provision of a minimum entitlement of this kind may be questioned. But given that this matter is not directly challenged in this proceeding I do no more than note my concern about the failure to meet this, and potentially other minimum standards.

[20] Mr Marsh says that Corrections was aware of staffing shortages developing over, and exacerbated by the period of the COVID-19 pandemic. By June 2022 he says that the staff-prisoner ratios were becoming unsustainable across the prison network, particularly at two prisons in Auckland — Mount Eden and Spring Hill. Mr Marsh says that he began taking steps to try and address the position from June 2022.

[21] The first step taken involved what was called a “regional consolidation plan” involving prisoner transfers within regions and redeploying staff at Spring Hill and

[22] In July the Department reactivated the National Coordination Centre, an emergency response body that had been used during COVID-19. Mr Marsh took over as “incident controller” of that body from 30 July. He then more fully familiarised himself with the position. On 3 August he received what are described as “deep dives” into the situation at Spring Hill and Mount Eden. He was very concerned to note that they had critically low levels of staffing, and that the system was under extreme stress. He considered that this created unsafe situation for prisoners and staff. He explains that not only was this a situation he had to avoid because of a “moral obligation” but that it “could place the Department in breach of the law”.

[23] Mr Marsh says the potential answer to the problem was what was described as the “network rebalancing exercise”. The earlier secondment of staff into Mount Eden and Spring Hill had had limited effect, and some other solution was required. He then describes a series of options that were considered. He received site impact assessments involving all of the relevant prisons, and then the collation of the information in what he describes as a “master spreadsheet”. One of the proposals included the closure of Arohata to all but remand prisoners, with the staff then able to be moved from Arohata to Rimutaka Prison which would enable Rimutaka to receive prisoners from Mount Eden and Spring Hill. This was the option he decided to implement.

[24] On 17 August 2022 a memorandum was prepared to the Department’s Executive Leadership Team seeking their endorsement to the proposed network rebalancing exercise Mr Marsh had decided upon. That involved a number of movements of prisoners around the country, including the movement of the existing population of sentenced prisoners at Arohata to Christchurch Women’s to enable the staff at Arohata to be freed up to go to Rimutaka. Part of the reason why this option was attractive was they were prisons in the same region and it was easier to get staff to transfer than it was to transfer staff across regions in New Zealand, which was less attractive to Corrections staff. Mr Marsh’s evidence was that this option was the only one that could realistically lead to an easing of the critical staffing pressures.

[25] The network rebalancing exercise was approved by the Executive Leadership Team at its meeting on 18 August. I note that the memorandum so approved included the following (emphasis added):

77. We also need to ensure that prisoner welfare and wellbeing is protected throughout this process. Alongside any initiatives to mitigate the impacts on prisoners discussed above it is important to note that there will be careful consideration given as to whether it is appropriate to move each prisoner or not. This will consider factors such as current court proceedings, placement on external health waitlists, access to programmes and services, and the individual circumstances of the prisoner including their mental health status. It is important that we get this right to mitigate any negative impacts on the person considered but also the safety and security of our prisons.

[26] The network rebalancing exercise involved the transfer of a number of prisoners to and from a number of prisons. The above paragraph was not directed to the women at Arohata but to the proposed prisoner movements generally. I also note that the Executive Leadership Team decision included endorsement for a decision to move “up to 48 Low Sec women” to Christchurch Women’s by reference to the plan attached to the memorandum. I return to the significance of that approval being “up to” 48 below.

[27] The network rebalancing exercise was then implemented. The implementation at Arohata was managed by the Prison Director, Ms Carey. The transfers took place in three main tranches of 12 prisoners by way of chartered flights, and then some residual movements. On 20 September, 12 prisoners were transferred from Arohata to Christchurch Women’s, and six prisoners to Auckland Women’s. On 4 October, 12 prisoners were moved to Christchurch Women’s, and the same again on 6 October. Between 6 October and 20 December, smaller transfers were made to both Christchurch and Auckland Women’s. The interim relief application was made before the first transfer.

[28] I do not accept Mr Marsh’s evidence that the individual circumstances of the women were considered when deciding whether to transfer them. In his first affidavit he said that consideration was given to their individual circumstances, but it is apparent that the only consideration that was given before the decision to move them was at a general, or cohort level and did not involve considering the circumstances of the individual prisoners being transferred. I accept Ms Carey’s evidence that she gave

[29] It is also apparent that in the implementation exercise it was decided that those women who were already scheduled to be released by reason of their sentence end date, or parole decisions remained at Arohata, and that they were subsequently released from Arohata. But all the sentenced women prisoners that were at Arohata at the time of the decisions were either moved or released. The reference in the memorandum to the Executive Leadership Team to “up to” 48 women simply reflected the variable number in question, and such releases. The sentenced women needed to move out to facilitate the transfer of staff that would otherwise have been needed to service the sentenced women’s part of the prison.

[30] Arohata is now primarily used as a remand facility as a consequence. There are some newly sentenced women at the prison, however. When she was cross- examined Ms Carey explained that there were 14 sentenced women then at the prison. They are being kept in the high security cells where they are able to be locked down for longer periods. Both the remand and high security parts of the prison can be run with the lower staffing levels. Arohata is no longer staffed as a facility servicing sentenced women that have a normal security classification and those parts of the prison are not being used. I accept, however, that it has not been permanently closed as a prison for sentenced prisoners. The Arohata staff are still only on secondment to Rimutaka, although this has now been extended to the end of this year. The internal documents describe the part of the prison used for sentenced prisoners as being kept “warm”.

[31] I address the position of two women to illustrate the issues that emerge in relation to the transfer of the sentenced women out of Arohata.

[32] Prisoner T has four children and a grandchild.¹⁷She is serving a sentence of life imprisonment. Her family used to visit her every weekend at Arohata. In her first affidavit, filed in connection with the interim relief application, she explained her circumstances raising a real concern about her mother, who was not well, and also her older daughter who was a complainant in a serious criminal trial. She explains in her second affidavit that she was scheduled to be transferred but was told the day before the interim orders hearing that she would not be. In his affidavit sworn for the interim relief hearing Mr Marsh said that prisoner T’s circumstances were considered, and that she “... will now remain in Arohata”. That turned out not to be correct, however, and notwithstanding a worsening of her personal circumstances. In her third affidavit prisoner T describes that two days after her second affidavit her mother passed away. She also was subsequently advised that one of her children had gone missing. Two weeks after swearing her second affidavit, and after the interim relief application was declined, she was told that she was being transferred to Auckland Women’s. The solicitors for the applicant then wrote to Corrections expressing a concern about this proposed transfer, but she was nevertheless duly transferred to Auckland Women’s. Corrections later revisited its decision and prisoner T was then transferred back to Arohata. I accept that the only reason why that has happened was because of the representations by the solicitor for the applicants in connection with these proceedings. Her position in Arohata was also compromised as she was housed in the high security cells given that the normal prison facilities have been closed.

[33] Eletise Wallace is from Whanganui. She has a 13-year-old daughter living with her mother and father in Whanganui. All three are approved visitors, but she hasn’t seen them while she has been in Arohata given the restrictions that have been operating there in recent years. She has had some audio-visual link (AVL) contact, however. Her mother is over 60 and is unwell. She described her circumstances in her affidavit for the interim relief application. In Mr Marsh’s affidavit in response he described Ms Wallace as one of the sentenced prisoners who “have been determined unsuitable for transfer at this time for reasons personal to their individual circumstances”, noting that she had an upcoming Court appearance in New Plymouth. Ms Wallace was, however transferred to Christchurch Women’s shortly after the interim relief hearing.

[34] These are but two examples of the applicants who have given affidavit evidence, each of whom have a set of circumstances that would likely justify consideration before a decision to transfer in accordance with the statutory requirements I address below. In any event when Mr Marsh was cross-examined he explained that he did not have a personal knowledge of the circumstances of the women who were transferred, and he was not able to provide any evidence about their circumstances. He explained that the personal circumstances described in his affidavits arose from what he had been told. As I say above there was detailed consideration of the circumstances of each of the prisoners being transferred by Ms Carey and others, but only in relation to when and where they would be transferred.

Failure to take into account relevant considerations: individual circumstances

[35] In presenting the applicants’ challenge Ms Casey emphasised that it focused on a decision to effectively close Arohata, and that the failure to take into account relevant considerations was based on a number of identified matters associated with that decision.

[36] I accept the respondent’s argument, however, that there was no decision under a provision of the Act to “close” Arohata. Places are designed prisons by the Minister in accordance with s 32 of the Act and Arohata remains so designated. The Act does not set up different types of prisons, such as remand prisons or prisons for sentenced prisoners. Neither is there any provision that regulates the existence of a women’s prison. Rather the decision on the management of prisons, and issues such as staffing levels and the kind of prisoners held in any particular prison, fall within the general administrative functions of the Chief Executive contemplated by s 8.

[37] Against that background there were two inter-related decisions made under the Act which can be subject to the judicial review challenge. The first is the transfer or secondment of staff away from Arohata to Rimutaka — in effect a resourcing decision. The second is the transfer of prisoners from Arohata to Christchurch Women’s and Auckland Woman’s. The “closure” of Arohata to sentenced prisoners is a consequence of these decisions. But there is no separate provision in the Act otherwise controlling the partial closure of the prison.

[38] What the Act does regulate in some detail, however, is the transfer of prisoners. In doing so the Act sets out mandatory considerations. For this reason I consider the applicants’ challenge based on mandatory relevant considerations relating to the individual circumstances of the women is most appropriately addressed by considering these provisions. The Act provides:

(1) A prisoner may be transferred, on the direction of the chief executive, from any prison to any other prison in which he or she may be lawfully detained.

[39] Section 54(4) accordingly sets out mandatory relevant considerations that must be taken into account when a transfer direction decision is made under s 53(1). The Act goes on to specify the information that must be given to prisoners who are being transferred in s 55, and the information about the reasons for transfer in s 56. I accept that these provisions impose important controls that are intended to promote the purposes of the Act.

[40] It is accordingly important to address whether and how the decision-maker addressed the requirements of s 54(4). Somewhat surprisingly there was a dispute as to who the decision-maker was in this case. In his evidence Mr Marsh said that he had “approved” each of the transfers. Under cross-examination, however, he said he did not make decisions about individual prisoners. The respondent nevertheless argued that Mr Marsh had made the relevant decisions under s 53(1). The applicants argued that it was in fact Ms Carey who had made the relevant decisions.

[41] The reason for the uncertainty arises from the fact that, for Arohata the rebalancing exercise involved all of the sentenced prisoners being transferred. For the movements arising with respect to the other prisoners it would be the Prison Director at each prison who would have made the decisions about the individual prisoners who would be so moved, and who would be required to address the considerations in s 54(4). That is what paragraph [71] of the memorandum to the Executive Leadership Team explained would occur.¹⁸But Ms Carey was clear that she did not do that with respect to the Arohata women as Mr Marsh had already decided that they all needed to be moved. For the Arohata prisoners, therefore, the statutory decision was effectively partly made by Mr Marsh, and partly by Ms Carey. Both held delegated authority to make a s 53(1) decision.

[42] I do not accept Mr Marsh’s evidence that he considered the circumstances of the individual women being transferred when he decided that the sentenced women at Arohata would be so transferred. I accept Ms Carey’s evidence that she did not decide whether they would be transferred. In that context, I do not accept the arguments for the respondent that, whilst this may have been Ms Carey’s understanding, she did in fact decide who would be transferred. Her evidence was clear on that point, and she did not do so. I also accept that none of the s 54(4) considerations were taken into account when the decision was made to transfer each of the women out of Arohata.

[43] In addition I do not accept the respondent’s argument, said to be advanced by analogy to the Carltona principle, that the relevant considerations were taken into

¹⁸It is also what the Guidelines I address at [56]–[61] below also required.

[44] The respondent argued, however, that when a transfer was being made “to enable effective management of the national prison muster” under s 54(3)(b) then there was no requirement to address the s 54(4) considerations when deciding to transfer the prisoners. That argument was based on s 54(4) applying at a different time in the transfer process with muster management. When transfers were being made for muster management purposes s 54(4) only required the mandatory considerations to be addressed in deciding “how [a transfer] is to be effected” rather than “whether to transfer a prisoner”. The earlier decision on whether to make a transfer for this reason would involve considering matters at a cohort and not an individual level. But when later deciding how to give effect to that decision — which involves the when and how considerations — the more individual considerations would need to be addressed under s 54(4). I accept that Mr Marsh took into account that there would generally be adverse effects for the women being transferred when he made the decision to transfer them.

[45] I do not accept this interpretation of s 54(4), however as it defeats the apparent legislative intention revealed by these provisions interpreted in light of ss 5(1)(c) and 6(1)(h) and (i). Deciding how a muster management reason for transfer is to be effected will involve deciding whether individual prisoners should be transferred for that purpose as well as how and when they are transferred. The whole focus of the provisions in ss 53–56 is based on the transfer of an individual prisoner and the effects on that prisoner, although they are plainly applicable to decisions affecting more than one prisoner. I do not accept that the wording of s 54(4) means that the relevant considerations are not addressed before a transfer decision under s 53(1) for muster

[46] That would have been the case for all the other transfers around the country required by the network rebalancing exercise. The Prison Directors at each of the prisons would have needed to have addressed the listed matters in deciding whether individual prisoners should be transferred from their prison in light of their circumstances. Some would have been determined to be not appropriate to transfer for the reasons associated with the mandatory considerations in s 54(4).

[47] The legislative intent in s 54(4) cannot be avoided by a contention that Mr Marsh made a decision at a resource management or spreadsheet level which required all the sentenced women at Arohata to move, with transfer decisions for individuals then proceeding irrespective of whether it was appropriate to transfer them given the considerations in s 54(4). If Mr Marsh’s decision required all the sentenced women to be transferred to another prison (as it did) he was making s 53(1) decisions, and he had to address the mandatory considerations in s 54(4) before deciding to do so.

[48] The respondent’s interpretation would also not be consistent with other relevant standards. Rule 4 of the United Nations Rules for the Treatment of Women Prisoners 2010 (Bangkok Rules) provides that women prisoners should be allocated, to the extent possible, to prisons close to their home or place of social rehabilitation. New Zealand has not ratified these Rules, but they nevertheless reflect international practice. This is also provided for in r 59 of the Nelson Mandela Rules, which are referred to as part of the purposes of the Act in s 5.

[49] I also accept that individual consideration is appropriate so that consideration can have been given to the rights of any children associated with the prisoner. Ms Casey argued that the United Nations Convention of the Rights of the Child are a

[50] I also note that the need to consider the individual circumstances of prisoners when making prison transfer decisions has been formally accepted by Corrections on earlier occasions. A report of the Office of the Inspectorate | Te Tari Tirohia into transfers dated October 2021 was provided in evidence.²⁰That report describes in detail the procedures that are followed, internal audits into those procedures, and steps that were being taken by Corrections to address issues that had been identified, including because it was “... important to assess the impacts of inter-prison transfers on prisoners and their family and whānau.”²¹Other reports address that impact particularly in relation to the women’s prisons.²²These reports, and Corrections views as expressed to the Inspectorate, evidence a well-established practice which involves considering the individual circumstances of prisoners when transfer decisions are made. This is not consistent with the view that there is no requirement to consider

¹⁹Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298; Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; and Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).

²⁰Office of the Inspectorate | Te Tari Tirohia Thematic Report: Inter-Prison Transfers: The impact of moving prisoners in New Zealand (October 2021).

²²Office of the Inspectorate | Te Tari Tirohia Arohata Prison: Announced Inspection (September 2020) at 17; and Te Tari Tirohia Thematic Report: The Lived Experience of Women in Prison (October 2021) at 18 and see also [476]–[478].

[51] The interpretation is also not fully consistent with a formal strategy adopted by Corrections in relation to women prisoners — Wāhine - E rere ana ki te pae hou: Women’s Strategy 2021 - 2025 (Women’s Strategy), at least with respect to the application of the provisions to women prisoners. As summarised by the Chief Executive in his Foreword, the “... strategy recognises the importance of children and whānau in the rehabilitation and reintegration journeys of women, and that treatment and support needs to be personalised, trauma-informed, and culturally responsive.” That Women’s Strategy also has significance for the other grounds of challenge addressed below.

[52] Administrative practices, and reports made by Corrections to the Inspectorate do not change the meaning of legislation. But legislation must be interpreted in light of its purpose, and this includes interpreting the legislation so that it works in a practical way. Sections 28 and 29 of the Act contemplate reports from the Inspectorate to the Chief Executive in that context. The interpretation advanced by the respondent is not consistent with the recognised needs for effective management of prisoners recognised by the above materials, and provides further reasons for not accepting the interpretation advanced.

[53] The respondent alternatively argues that, even if the considerations in s 54(4) were engaged, that it was not “reasonably practicable” to address those considerations because of the imperatives of the national rebalancing exercise. Those imperatives, and the need for urgent action, limited what could reasonably be addressed.

[54] I do not accept that. That is inconsistent with the views expressed by Corrections to the Inspector of Prisons at a more general level. Moreover the evidence demonstrates that Ms Carey was able to give careful consideration to the circumstances of the women who were being transferred. She appeared to know her women well. There is nothing to suggest that she could not have been asked by Mr Marsh to identify whether there were women, or how many of her women, were

[55] I also note that Corrections has software system that it uses to manage such transfer decisions. That software contains information about the individual circumstances of each prisoner. A number of inputs are involved. It is called the Population Pressure Rating (PPR). It assigns numerical values to the relevant factors to form a weighting for and against transfer. Its outputs are then used to assist transfer decisions. The result of any outputs of the PPR for the women at Arohata were not revealed or explained in Corrections evidence before the Court. The existence of this tool further illustrates why individual consideration was reasonably practicable.

[56] There is an additional reason why individual consideration was required as a matter of law. Under s 196(1)(a) of the Act the Chief Executive may issue “guidelines on the exercise of powers under this Act or any regulations made under this Act”.

[57] Such guidelines have been promulgated in the Prisons Operations Manual which addresses the power to direct transfers under s 53(1). The guidelines in the Manual first refers to the application of the PPR stating that “[t]he lower the score, the less suitable they are to be transferred to another prison.” It then provides that transfers should only occur in accordance with transfer requests, which include a transfer for muster management purposes (M.04.03.02 Transfer requests at [3(a)(i)]). It then provides:

M.04.03.04 Considerations when making transfer decisions and notification requirements

1. Prior to any transfer decision being made it is important that the prison director or delegate has considered the individual circumstances of the prisoner to satisfy themselves that the transfer is necessary and will not interrupt the prisoners progress in achieving their rehabilitative or reintegrative needs. These considerations need to include:

[58] It then lists a series of detailed considerations that must be taken into account. These guidelines, and the PPR tool were referred to in the reports of the Inspector of Prisons.

[59] Both Mr Marsh and Ms Carey held a delegation to exercise the Chief Executive’s power under s 53(1). They were required to apply the guidelines prescribed by s 139. Guidelines “... may be quite specific, so long as they are in conformity with the particular legislative policies and leave sufficient room for the proper exercise of discretion.”²³The guidelines in the Manual are specific in terms of what must be addressed. They are consistent with s 53(4) and the legislative policy generally. The matters so identified were required to be addressed when deciding whether each of the women prisoners should be transferred. That did not occur.

[60] I also accept that it is highly likely that women who are transferred out of Arohata were transferred when they would not normally have been considered to be appropriate for such transfer. One of the mandatory considerations listed in the guidelines is:

The health status of each prisoner must be considered, along with any potential negative impact the planned transfer could have on their oranga (physical and mental health and wellbeing). This includes risk of self-harm and/or suicide. Staff must consult with the prison Health team in cases where a person is actively receiving treatment or support for their health.

Relevant information will be passed from the transferring site to the receiving site via the Health team. In cases where prisoners are transferred, they must be place in a unit suitable for their medical needs and health status to be appropriately managed.

Prisoners must not be transferred if they have existing appointments / planned procedures with external health services, or their medical needs can only be managed at the site at which they are held.

[61] Mr Marsh’s answers to the interrogatories that were earlier ordered by the Court record that six women under forensic mental health care were transferred out of

[63] I next address the applicants further ground of challenge — identified by them as their primary ground of challenge — that the respondent’s decisions were unlawful because they involved unjustified discrimination on the ground of sex in conflict with s 19(1) of the NZBORA.

[64] The discrimination identified by the applicants was in two main areas, and a third area emerged during the course of oral argument. The applicants contend that there was discrimination because:

²⁴Wallace v Chief Executive of the Department of Corrections [2023] NZHC 139.

[65] The way in which fundamental rights in the NZBORA constrain discretionary decision-making has recently been confirmed by the Supreme Court in Moncrief- Spittle v Regional Facilities Auckland Ltd.²⁵When a right is being limited by such a decision:

[66] There was no material dispute between the parties on the approach that is to be followed to identify whether there have been an unjustified limitation on the right to be free from discrimination. The appropriate approach has been set out by the Court of Appeal in Child Poverty Action Group Inc v Attorney-General and Ministry of Health v Atkinson.²⁶This involves identifying:

[67] In relation to the first and second issues — differential treatment and disadvantage — I will address each of the categories of alleged discrimination separately, and then address the question of whether any discriminatory treatment established was demonstrably justified.

[68] There is an important background to addressing the grounds of discrimination alleged. It arises because it is already well established that women prisoners are a more vulnerable and disadvantaged group than male prisoners. The contention that the challenged decisions discriminated against women in an unjustified way is addressed against that context.

[69] The following factors in relation to sentenced women are summarised in the Women’s Strategy referred to above. In particular:

[70] The first alleged ground of discriminatory treatment is based on the argument that the women’s individual circumstances were not taken into account, and that they were transferred irrespective of those circumstances, whereas for men the individual circumstances were taken into account and would have led to transfers not taking place if they were not justified.

[71] For the reasons outlined above it is clear that the individual circumstances of the women were not taken into account when considering whether the women would be transferred. That was because Mr Marsh had made the decision to transfer all women prisoners out of Arohata. This was necessary because the staff needed to service that part of the prison were moving to Rimutaka. The only exception established was for those who were likely to be released from the prison in any event. Moreover as a consequence of the decision to transfer the staff to Rimutaka, Arohata no longer operated effectively as a prison for the women prisoners. The only sentenced women now housed there are those in the high security unit who do not need the level of staff support for normal prison operations. The women who are now present were not present when the transfer decisions were made.

[72] The Court does not have evidence of the nature of the consideration given to the position of men prisoners who were transferred. But none of the men’s prisons were being effectively closed requiring a whole group to move. There is no reason to assume that the procedures contemplated by the Prison Manual, including the provisions relating to the required considerations, would not have been applied. The memorandum to the Executive Leadership Team emphasised that this would take place. For these reasons I am satisfied that that would have taken place for the male prisoners.

[73] The relevant comparative groups for the purposes of assessing discrimination are female prisoners considered for transfer as part of the rebalancing exercise compared with the male prisoners considered for transfer. I accept that there was different treatment. That different treatment did not arise because the disadvantaged group were women. It arose because of the size and location of Arohata. It was in close proximity to Rimutaka prison, and the staff could be more easily moved. But it does not matter that disadvantaged treatment of women was not the purpose of the decision-maker. This was still the effect. A decision that disadvantages a group on one of the prohibited grounds is still discriminatory whether or not that was the intention of the decision-maker.²⁸

[74] I also accept that it is clear that there was disadvantage arising from this differential treatment. The procedures that should have been applied under the Prison Manual, and under s 54(4) could be established that some prisoners should not be moved. The evidence filed by the individual women in this proceeding, together with the other evidence of the circumstances of the other women so transferred (such as the fact that some of them were under active forensic care) demonstrates that this was likely. This could even have led to the rebalancing exercise not taking place at all. Had Mr Marsh taken into account the mandatory considerations the closure of Arohata for sentenced prisoners may have been recognised as inappropriate, or requiring significant modification. I am not able to reach a conclusion on that, or on the number of women who would have been identified as not appropriate for transfer. The evidence filed by the respondent did not sufficiently responded to this claim to allow that to take place. For example the results of the PPR assessments for each of the prisoners were not provided. In any event, a failure to even address personal circumstances is a disadvantage in itself. It is clear that there was disadvantaged treatment.

[75] For these reasons I accept the applicants’ argument there was disadvantage based on sex/gender in the decision-making, and that this disadvantage caused detriment.

[76] A further effect of the closure of Arohata for sentenced prisoners was that the DTP operated from there was discontinued. The nature of the programmes offered by Corrections was described by Ms Sandie Finnigan, the Manager of Addiction Services. A DTP is a residential drug and alcohol treatment programme. Corrections also has other intensive treatment programmes, but a DTP is a more rigorous programme aimed at people who have higher addiction needs. A defining feature of a DTP is the participants involved in the programme live together in the same wing or unit of a prison creating a therapeutic community. It operates as a three–12-month residential programme.

[77] The DTP at Arohata operated as a three-month programme, the shortest DTP programme operated by Corrections. It was the only DTP available in New Zealand for women. There are a number of such programmes in existence for men. Most women prisoners who have attended it have come from Auckland. The applicants argue that the closure of the DTP as part of its decisions caused differential impact for women prisoners.

[78] I consider the question of differential treatment is relatively straight forward. The relevant comparator groups are sentenced women having higher addiction needs compared with sentenced men having higher addiction needs. The closure of Arohata, and accordingly the only DTP available to women prisoners, had the consequence that there was differential treatment based on sex/gender.

[79] On the face of it the question of disadvantage arising from that differential treatment also seems straight forward. It is to be noted that women are already a more vulnerable group. As Ms Finnigan explained, whilst drug issues are common amongst prisoners the Women’s Strategy shows that 44 per cent of women in prison have experienced drug dependence disorders across their lifetimes compared with 37 per cent of men. She also explained that 46 per cent of women in prison have lifetime alcohol dependence compared with 35 per cent of men.

[80] The respondent also admits that the successful completion of a DTP can be a critical step to achieving parole and successful rehabilitation for women with alcohol

[81] There was reference in the respondent’s evidence to Corrections taking steps to address this issue by re-establishing drug and alcohol services outside of Arohata. The effectiveness of such steps was challenged by the applicants. In particular, the applicants argued that the evidence showed any new services provided for women would not be nearly as effective as a DTP — that is that they would not be a residential drug treatment service involving a therapeutic community within a prison, but only less effective non-residential programmes. They relied on an update provided by Corrections to the New Zealand Parole Board dated 28 April 2023. This confirmed to the Board that the DTP had closed at Arohata (as well as the closure of the DTP at Spring Hill, and the suspension of the DTP at Rimutaka). It reported that the DTP at Arohata had been suspended in September 2022 with the decisions that are challenged in this proceeding, and then permanently discontinued in March 2023. It reported that there would be a replacement alcohol and drug programme established at Auckland Women’s with an estimated start date in mid-May 2023. The applicants point out that this was not described as a DTP programme but rather a “... Kaupapa Māori based programme that provides treatment options across a continuum of AOD needs. This programme will be locally scheduled rather than nationally.”

[82] The respondent argued that the DTP at Arohata had not been closed as a result of the challenged decisions. Rather its existence had only been suspended. It argued that it was clear that the challenged decisions had not resulted in a closure because a formal decision to close the DTP had been made in March 2023, and that that was what a formal closure decision looked like. It also questioned whether events after the

[83] I consider the respondent’s argument in this respect to be artificial, particularly as there are inter-related decisions. The Court needs to be fully informed of decisions, and the implications of decisions, in order to make the assessment on whether there has been differential treatment, disadvantage, and whether any disadvantage is demonstrably justified. The fact that the DTP at Arohata was closed in March 2023 is inextricably interlinked to the removal of all the women prisoners out of Arohata a few months earlier. It is also necessary to look at all the relevant circumstances, even if they arise after the challenged decisions, to properly assess the question of disadvantage, and justification. Here there are two significant features that need to be addressed on both issues.

[84] First, it is apparent that the DTP that was operating at Arohata had become largely ineffective. Partly as a consequence of COVID-19, and then the resource limitations Corrections was facing, it was not properly operating as a residential programme. It was using AVL facilities. Ms Finnigan points out that it was also proving unpopular with women prisoners. Most women prisoners who accessed the programme came from Auckland Women’s and they were reluctant to move away from Auckland because of time away from family or whānau connections and familiar environments. She explained that the last DTP run at Arohata had only three participants when there were usually 10 places, and that this level of uptake was not viable.

[85] I do not consider that by itself this is an answer to the applicants’ criticisms. There was still plainly a need for such a programme, and there were 27 women across the country on a waitlist at the time of the challenged decisions. Moreover at least part of this diminishment in the effectiveness of this programme can be attributable to earlier resourcing problems. But it is an important part of the context.

[86] More importantly, given the uncertainty about the evidence about the establishment of a new DTP and the applicants reliance on the update provided to the Parole Board, I granted the respondent leave to file further evidence on this issue. In

[87] The applicants argued that this still fell short of what was available at Arohata, but I do not accept this. It is a residential programme for a slightly higher number of women prisoners and for a slightly longer period. It also seems preferable for it to be based at Auckland Women’s given earlier evidence that there was greater need from Auckland women prisoners. Ms Finnigan describes it as a programme that exceeds what was offered in Arohata. She also annexes the paper seeking approval for this programme dated 20 February 2023. I note that this says:

If we do not fund Te Ira Oranga there will be no DTP for wāhine across the network. This is both a reputational risk and a risk in terms of not providing the appropriate opportunities to address the health issues which addiction represents for wāhine in prison. There is also a risk of negative media coverage in relation to the closing of Arohata DTP and the limits this has created in terms of access to appropriate treatment, and ministerial questions regarding provision of service. This also poses the risk of not achieving:

[88] Whilst this emphasises reputation concerns as much as a concern for the women in need of the services the consequence is that the disadvantage created by the closure of Arohata was partly remedied by the re-establishment of this programme.

[89] The evidence, and the documentation, does not explicitly state that this programme is available nationwide to women prisoners. I assume that it is. If my understanding is incorrect then unlawful discrimination would arise. I also note that the funding is not permanent, which raises similar issues.

[90] This programme was re-established some nine months after the decision was taken to move the women out of Arohata. For the above reasons I accept that there was differential treatment arising from the challenged decisions, and that detriment arose as a consequence because no DTP was available for New Zealand women for the nine-month period. I accept that this did create disadvantage in a material way for that period. I address the question of justification below.

[91] The third area of alleged discrimination was not separately advanced by the applicants but it formed an inherent part of both of the above arguments, and it became a focus of oral submissions.

[92] Arohata was one of three women’s prisons operating in New Zealand with the other two based in Auckland and Christchurch. By comparison there are some 13 prisons around New Zealand for men in different locations, although some are more limited facilities. The greater number and spread of men’s prisons is understandable given the higher number of male prisoners.

[93] The fact that there are only three prisons in New Zealand for women significantly prejudices the ability for women to be imprisoned close to whānau and the community which they associate, and which they will ultimately be reintegrated into, however. The nature of that disadvantage may be difficult to avoid given the more limited number of women prisoners. Having prisons in Christchurch, Wellington and Auckland has involved a reasonable geographic spread given the number of women prisoners, and the geographical size of New Zealand. But inherently this position means that women are less able to be sentenced near to their communities than men.

[94] But the effective closure of Arohata for female sentenced prisoners reduces by one third that already compromised situation. Women who are sentenced will now either need to be sent to Auckland, or sent to Christchurch (with the exception of the limited number able to be sentenced to the high security cells at Arohata). This impact is not limited to the women who were transferred out of Arohata, or the women that would no longer be able to attend the DTP programme. It applies for all future

[95] This gives rise to differential treatment between men and women as a consequence of the decisions. The relevant comparator groups are men who are sentenced to imprisonment compared to women who are sentenced to imprisonment. As a consequence of the challenged decisions the ability for women prisoners to be sentenced near to their communities has been significantly reduced. But there is no such reduction in service for men prisoners. I accept that this is differential treatment.

[96] It is also apparent from the evidence that the differential treatment causes significant disadvantage. Women prisoners are no longer able to be sent to a place close to their communities and this causes greater social dislocation, it diminishes the contact with whānau, and impacts adversely on rehabilitation. The report of the Prison Inspectorate in October 2021 — Thematic Report: The Lived Experience of Women in Prison states:²⁹

476. Our Inspection Standards state that prisoners should be located as close as possible to their family and whānau and the community they have a strong attachment to. If prisoners are placed in prisons outside their home region, it should be for the minimum time necessary and for an identified reason. Further, prisoners should be able to promptly inform their family or whānau or designated contact person about their imprisonment, transfers, illness or injury.

477. For women in prison, these aspirations are difficult to achieve because of the small number of prisons housing them, and prison locations.

478. Staff across the prison estate appreciated the importance of women having contact with their whānau.

[97] There was extensive evidence of the importance of local connections to prisoners, and particularly in connection with their whānau (especially their children) and support networks in achieving the rehabilitation aims of the Act. The adverse implications for women is also reflected in other ways. Ms Gillies outlined the disadvantages to women from the situation in her evidence, including the inability to

[98] For these reasons I accept there was different treatment of men and women arising from the challenged decisions, and that there was significant disadvantage to the existing women prisoners, and those women being sentenced as a consequence.

[99] The fact that there has been discrimination causing disadvantage on a prohibited ground for the three reasons I have upheld does not mean the NZBORA is infringed, and that the decision is unlawful. The Crown is able to establish that such discrimination is demonstrably justified under s 5 of the NZBORA. The burden is on the Crown to do so. That issue arises here. The approach to justification involves the steps outlined by Tipping J in R v Hansen, or by an analogous approach.³⁰

[100] The essence of the argument advanced by Corrections on behalf of the Crown is that it realistically had no option but to proceed in the way that it did. The understaffing at the prisons around the country, and particularly at Spring Hill and Mount Eden, was reaching crisis point. This risked the safety to staff and prisoners. The other attempts to resolve the issue by moving staff around the prison network had not succeeded. Mr Marsh was placed in a position where he needed to find a solution that worked, and to avoid a situation that was not only compromising staff and prisoner safety but also adherence to the requirements of the Act in terms of minimum standards. He carefully considered all of the options and reached a view that any other actions were “not feasible”. He said that if it was not possible to relocate the staff from Arohata to Rimutaka it was not possible to relieve the pressure on Mount Eden. In his second affidavit he said that this option was the only one that could realistically lead to an easing of the critical staffing pressures, and that it was not a matter of choosing between this and other viable alternatives that could still deliver the outcomes that were necessary.

³⁰See Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 25, at [87]–[92].

[101] The applicants did not accept this evidence. In terms of the alternatives they pointed to the option of moving male prisoners to Hawke’s Bay Regional Prison. Mr Marsh had addressed this in his first affidavit saying:

... Another option was transferring men to Hawke’s Bay Region Prison, but our assessment identified considerable strain on the health services there which would have compromised prisoner health and not delivered the same pressure relief on [Mount Eden]. Simply put, if we cannot relocate the necessary staff from Arohata to Rimutaka it will not be possible to relieve the pressure on [Mount Eden] in the short term.

[102] The applicants submitted that Christchurch Women’s had a more severe shortage of health staff than Hawke’s Bay and that additional health needs could have been achieved for Hawke’s Bay prison, including by acquiring an additional registered nurse or nurses.

[103] Whilst Corrections evidence was short on detail in establishing that it effectively had no option but to proceed in the way that it did, I do not consider that the option concerning Hawke’s Bay prison demonstrates that the respondent’s evidence should not be accepted on this point. There is a danger that the Court is required to proceed primarily on the basis of an assertion that there was no other option, particularly in circumstances where other aspects of the respondent’s evidence have legitimately been questioned. But I accept that the reason why the Arohata option was better than the Hawke’s Bay option is that with Arohata the prison was able to be completely closed to sentenced prisoners so that all the staff could be reassigned to Rimutaka where there was space to receive more prisoners. There may have been space at Hawke’s Bay, but there were other resource limitations. So the Arohata solution involved a different kind of reallocation of resources that was not replicated by the Hawke’s Bay option, or any of the other options. At the same time, of course, because Arohata was a women’s prison it gave rise to the discrimination issues.

[104] The respondent also argued that the steps he had taken were only temporary. He resisted the applicants’ argument that Arohata was closed. It was being kept in a “warm state” and the relevant staff were only seconded to Rimutaka albeit that that secondment had now been extended to the end of the year. It was a temporary measure to alleviate an existing crisis.

[105] I accept the applicants’ arguments, however, that Arohata is indefinitely closed for sentenced women (apart from the limited high security prisoners) and that it cannot be treated as only a temporary measure. The staffing problem facing Corrections is not, realistically, a short term one. It has been building for some time. Moreover, once a facility has effectively been closed to address the issue it will be very difficult to re- open it until the problem leading to the temporary closure has been satisfactorily addressed. The applicants took me to documentation that demonstrated that the staff could only move back from Rimutaka when the prisoners could move back to Mount Eden. In other words the re-opening of Arohata would only occur when the wider staffing problems have been resolved at the other prisons. There is nothing in the evidence that suggests that the resolution to these problems is imminent. Although the respondent resisted the allegation that Arohata had been closed, I think it is fair to characterise it as an indefinite closure of Arohata to sentenced prisoners. It now operates only as a facility for remand prisoners, and a limited number of high security prisoners. I address the argument from the Crown that the measure was reasonably justified on that basis.

[106] I do not accept that the discrimination is justified. Whilst I accept that Corrections was placed in a position of extreme difficulty, bordering on an emergency, there is little by way of evidence that explains how it got itself into this situation when it made its decision in August 2022. No doubt the impacts of COVID-19 will have impacted on its ability to retain, and hire new staff. But even here Correction’s evidence is thin. It is largely assertion. Whilst resource allocation is not usually a matter that will give rise to successful judicial review, resource allocation can also not be advanced as a reason for failing to meet a statutory duty.³¹The Chief Executive had a duty under the Act to provide the minimum standards. Although it is less expressly stated, he also had a duty in relation to safety of staff and prisoners. The Crown also has a legal duty not to discriminate in contravention of s 19 unless its conduct is demonstrably justified. I do not accept that a lack of resources, here human resources, can be put forward as demonstrably justified reason for introducing a discriminatory measure unless it can be shown that those circumstances were beyond

³¹See R (on the application of G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208 at [11]–[13]. See also Harry Woolf and others De Smith’s Judicial Review (8th ed, Sweet & Maxwell, London, 2018) at [5-148].

[107] In terms of the structured test set out in Hansen, or the less structured inquiry that is appropriate for discretionary decision-making referred to in Moncrief-Spittle, the key point is that the Crown has not limited the right as little as possible, and proportionality between the limit and what the Crown has been seeking to achieve has not been maintained.

Failure to take into account relevant considerations: the effect on women prisoners

[109] I will address two further aspects of the applicants’ challenge together — the failure of the respondent to take into account the discriminatory effect of the decision- making, and the applicants’ other allegations of failure to take into account mandatory relevant considerations.

[110] As the Supreme Court confirmed in Moncrief-Spittle, discretionary decision- making which limits fundamental rights in the NZBORA requires the decision-maker to take into account the limitation and whether it is justified.³²I have already addressed whether the decisions did so limit the right provided for in s 19, and concluded that it did for the three reasons identified. I have also concluded that that

³²Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 27, at [81]–[83].

[111] Here I accept that no such consideration was given. There is no reference in the contemporaneous documentation to any appreciation that the decision had an apparently discriminatory effect. For example, the memorandum to the Executive Leadership Team did not refer to this. Neither did Mr Marsh suggest he appreciated that his decisions were having such an effect. I accept that it was recognised that the decisions would have adverse effects on prisoners, including women prisoners, and this was raised in a general sense in the decision-making process. For example Ms Gillies refers to these matters being discussed at meetings, although Mr Marsh did not attend all of them. It is also relevant that such consideration must be as a matter of substance, rather than form. The fact that a decision-maker does not expressly refer to the particular section of the NZBORA is not what is most important.³³What is necessary was a consideration recognising, as a matter of substance, that the decisions had discriminatory effect on women prisoners, and addressing whether that was justified. That did not occur, and I uphold this ground of review.

[112] This is also related to the applicants’ other challenges based on a failure to take into account mandatory relevant considerations. They include a number of matters, many of which have already been directly or indirectly addressed above. But it may be appropriate to address one of the matters that was advanced. Mandatory relevant considerations can be expressly identified in a statute or they can also arise by way of implication from the statute.³⁴Here the Act gives the Chief Executive a broad discretion to manage the prison network. The breadth of that discretion is also reflected in the frequent qualification, when describing the Chief Executive’s functions, of acting “within the resources available”. So a matter would need to be quite striking before it could be said to have given rise to a mandatory relevant consideration as a matter of implication.

³³Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) at 514 “All that is needed is compliance with the requirements of the relevant law, and not an exact reference to the texts which set out that law”.

³⁴CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 182–183; and Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [48]–[50].

[113] I consider such a matter does arise in the present case, however. Corrections Women’s Strategy was released in October 2021, under a year before these decisions were made. There are no provisions of the Act that contemplate its establishment. But it was clearly a document of significance — there were Forewords by both the Minister and the Chief Executive of Corrections, and it outlined significant statistical evidence showing that women prisoners were a disadvantaged group, and requiring strategies responding to this disadvantage to be adopted. For that reason I consider that decisions that were being made under the Act that had a particular impact on women prisoners would need to involve consideration of the Women’s Strategy as a mandatory relevant consideration.

[114] That did not occur. It is significant that the only reference to the Strategy in the contemporaneous documentation was in the context of communications and not in relation to the substance of the decision itself. There was no reference to it in the memorandum to the Executive Leadership Team. This is because the adverse impact on women prisoners was not properly recognised in the decision-making process. That involved a failure to take into account mandatory relevant considerations.

[115] An illustration of how the Strategy, and the underlying material concerning women prisoners, should have been taken into account can be seen in the paper concerning the re-establishment of a DTP for women prisoners dated 20 February 2023 filed after the hearing, and quoted at [87] above. This is the type of consideration that did not occur when the substantive decisions were made. In addition, and whilst it is not central to the Court’s findings, whilst I have accepted the respondent’s point that the “closure” of Aroha was the effect of the decision-making and not itself a formal decision, it is clear that the respondent was temporarily (or indefinitely) closing Arohata to sentenced prisoners and that it would remain to be used only for remand prisoners and a few high security prisoners. So the adverse effects on the women’s prison population should have been clearly apparent. I accept that the Women’s Strategy, the statistical information it recorded and the polices it described, were mandatory relevant considerations given the effects of the decisions.

[117] There are two further grounds of judicial review that were advanced by the applicants, but I do not think they take the challenge any further. I see them as largely subsumed by the other findings. In particular:

[118] Given the above findings there is a reasonably complicated position to address in terms of the appropriate relief. In particular:

[119] It was suggested at the hearing that given the potential complexities the Court could release a judgment with its findings and then have a further hearing in relation to relief. I understood that to be agreed to by both parties. In the circumstances that seems to be the appropriate way forward. It may be that the remedy may involve considering the re-opening of Arohata for sentenced women. But important resource management issues are involved in that, and it is appropriate to give the respondent a period of time to reflect on how the position can now be appropriately remedied.

[120] At present, therefore, I will not formulate any particular kind of relief under s 17 of the Judicial Review Procedure Act (or otherwise) arising from the above findings.

[121] The parties are to discuss the position. Either party may approach the Court to seek a telephone conference at which directions for a further hearing can be discussed.

[122] The judicial review application is, nevertheless, upheld. I declare that the respondent’s decisions were not lawfully made for the above reasons. The applicants will be entitled to costs. If costs cannot be agreed I will receive a memorandum within 20 working days (limited to five pages plus a schedule) to be responded to within 10 working days (limited to five pages plus a schedule).

Amanda Hill, Barrister and Solicitor, Lower Hutt for the Applicants Meredith Connell, Wellington for the Respondent

High Court of New Zealand Decisions

Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248 (18 August 2023)