Judicial Review Procedure Act 2016 – Corrections Act 2004 – New Zealand Bill of Rights Act 1990 – mandatory relevant considerations – individual circumstances – Carltona principle – leave to cross-examine in judicial review – unlawful discrimination – when limitation on right justified

Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248 per Cooke J.

In this application for judicial review, a group of women prisoners formerly serving their sentences at Arohata Prison in Wellington challenged the legality of the decision by the Department of Corrections to transfer them to prisons in Christchurch or Auckland, from 20 September 2022.

The decision to close Arohata Prison arose from serious staff shortages at Corrections, exacerbated during covid-19. This meant some of the prisoners’ minimum entitlements under the Corrections Act 2004 were not being provided and there were safety concerns for staff and prisoners. Corrections decided the solution was a “network rebalancing exercise”, involving the closure of certain prisons and redeploying staff. The decision was ultimately made to close Arohata to all but certain remand and high security prisoners.

The applicants submit overlapping grounds of review, which essentially amount to two submissions: first, that Corrections’ decision involved a failure to take into account mandatory relevant considerations, including the individual circumstances of each woman proposed for transfer, and second, the decision involved unlawful discrimination on the basis of sex/gender, contravening s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA).

Were ‘individual circumstances’ considered?

In an unusual move, the High Court permitted cross-examination of Corrections’ witnesses to resolve a particular factual dispute relating to the extent to which individual circumstances of the women prisoners had been taken into account in the transfer decisions.

Leigh Marsh, the Deputy National Commissioner for Corrections who had responsibility for the decisions leading to the transfers, and Phillipa Grey, the director of Arohata Prison, were cross-examined for this purpose.

Section 54(4) of the Corrections Act requires a decision-maker, when considering whether to transfer a prisoner, to have regard to certain factors, including the availability and location of services that would contribute to the prisoner’s rehabilitation and the desirability of ensuring the prisoner is detained close to his or her family.

There was uncertainty about who the decision-maker was in respect of each prisoner. While this would usually be the prison director, Grey was clear she was not the decision-maker with respect to the women at Arohata Prison because Marsh had already decided that all Arohata prisoners needed to be moved.

The court rejected, for want of evidence, Corrections’ Carltona argument that individual circumstances were “fed up” through the decision-making process to Marsh, with his responses “fed down” through that process. An alternative argument – that it was in any event “not reasonably practicable” for Corrections to address the s 54(4) considerations – was also rejected. While the staffing shortage was an urgent situation, there was nothing to suggest the proposal to close Arohata Prison could not be reconsidered if the circumstances suggested some of the transfers were inappropriate. This ground of review was upheld.

Discrimination

The court upheld this ground of review, applying a three-step test:

• Whether there had been differential treatment between two groups in comparable situations on the basis of a prohibited ground of discrimination;
• whether such different treatment resulted in material disadvantage to the group differentiated against; and
• whether the differential treatment was nevertheless justified.

The judgment traversed a range of evidence that established women prisoners are a more vulnerable and disadvantaged group than male prisoners. Before the closure of Arohata Prison, there were only three women’s prisons in New Zealand, compared with some 13 prisons for men.

The position was already tenuous and the closure of Arohata meant women who were sentenced to prison would need to be sent either to Auckland or Christchurch, which significantly reduced the ability of women prisoners to be sentenced near their communities. Furthermore, the closure of Arohata reduced the availability of rehabilitative services for women, including the effective closure of New Zealand’s only drug treatment programme for women. Both these consequences meant the first two steps above were clearly satisfied.

The court rejected Corrections’ argument that discrimination was justified due to the department’s staffing issues, finding it was at least partly responsible for its own staffing shortage and a “lack of resources [cannot] be put forward as demonstrably justified reason for introducing a discriminatory measure unless it can be shown that those circumstances were beyond the Crown’s control”.

Applicable principles: Whether mandatory relevant considerations taken into account – whether individual circumstances considered – whether Carltona principle applies – whether there has been discrimination when disadvantage not intended – when is limitation on rights justified.

Held: Application upheld. No further relief granted until the parties discussed the position, given the logistical and resource management issues likely to arise from relief.

Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248.