Bach v Prison Director, Auckland South Corrections Facility Serco
[2022] NZHC 2420
•21 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2274
[2022] NZHC 2420
UNDER the Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
DAVID BACH
Applicant
AND
PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY – SERCO
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 29 August 2022 Appearances:
D J Ryken for applicant
J K Scragg and AA Sawant for first respondent
S M Kinsler and H T Reid for second respondentJudgment:
21 September 2022
JUDGMENT OF GORDON J
This judgment was delivered by me
on 21 September 2022 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Ryken & Associates, Auckland Duncan Cotterill, Wellington Meredith Connell, Wellington
BACH v PRISON DIRECTOR, AUCKLAND SOUTH CORRECTIONS FACILITY – SERCO [2022] NZHC
2420 [21 September 2022]
[1] This is an application for judicial review. At the relevant times the applicant, David Bach, was held at Auckland South Corrections Facility (ASCF), a prison operated by Serco New Zealand Ltd (Serco) in a public/private partnership with the Department of Corrections. Mr Bach was released on parole on 15 June 2021, but was recalled on 19 August 2022. He is currently in custody.
[2] Mr Bach’s case does not involve the review of a particular decision. He challenges certain alleged actions or inactions by officers employed by Serco. Mr Bach says that in relation to his two complaints the first respondent, the Prison Director of ASCF (the Prison Director), was in breach of the Corrections Act 2004 (the Act) and/or the Corrections Regulations 2005 (the Regulations) and breached his right to natural justice protected by s 27 of the New Zealand Bill of Rights Act 1990 (the NZBORA).
The claims
[3] Mr Bach’s second amended statement of claim of 12 November 2021 contains four causes of action. At the hearing only part of each of the first two causes of action were pursued.1
First cause of action: response to allegation of sexual assault by a staff member
[4] Mr Bach pleads that the complaint process following his complaint of sexual assault by a staff member was a breach of natural justice under s 27 of the NZBORA.
Second cause of action: delay in receiving emails
[5] Mr Bach pleads that the Prison Director failed to ensure two of his inward emails were processed in a timely way in breach of his right to natural justice under s 27 of the NZBORA.
1 Mr Bach abandoned: part of the first cause of action regarding processing of his complaints generally (alleging breaches of ss 14 and 27 of the NZBORA); part of the second cause of action regarding processing of inward mail (alleging a breach of s 27 of the NZBORA); the third cause of action regarding a period of lock up in his cell and separately regarding the response to his allegation of sexual abuse by a staff member (both were said to be a breach of s 9 of the NZBORA); and the fourth cause of action regarding a claim of unhygienic food delivery practices.
Response to the claims
[6] The Prison Director denies the allegations. He says there has been no breach of Mr Bach’s rights, and no reviewable breach of the Act, the Regulations or the NZBORA.
[7] The Attorney-General appears as second respondent because of the allegations of breaches of Mr Bach’s rights under the NZBORA. The Attorney-General’s position is that none of the actions of Serco’s officers engages breaches of Mr Bach’s rights.
Procedural background
Relief sought
[8] Mr Bach seeks two remedies in his prayer for relief in relation to both causes of action. He seeks a declaration that the Prison Director “has behaved in breach of natural justice and therefore unlawfully”. He also seeks “Baigent damages at an amount the Court deems reasonable to deter and denounce the respondent against such breach or breaches of NZBORA”.
[9] In the month before the hearing, the Court directed that any question of relief was severed for determination after a preliminary decision (to take place after the substantive hearing) as to whether Baigent damages are available on an application for judicial review.
Was cross-examination required?
[10] There was no dispute between the parties that Mr Bach said he would like to make a complaint to the Police in his written complaint dated 20 December 2020 alleging that he was sexually assaulted by a prison officer during “pat-down”, also known as “rub-down”. He repeated that when he was later spoken to by a senior prison officer, Dayle McKibbin, on 17 February 2021. As part of his claim Mr Bach says his complaint should have been referred to the Police by Serco.
[11] In his affidavit the Acting Deputy Prison Director, Gerald Smith, deposes that he took over the investigation on (or at least shortly after) 17 February 2021. Mr Smith
deposes in his affidavit that as part of his investigation he interviewed Mr Bach. The date of the interview is not recorded. Mr Smith says he told Mr Bach that he would be speaking with the staff and investigating the complaint. Mr Smith further says that Mr Bach was happy with that and indicated he was content with that outcome and did not want to escalate it to Police. Mr Smith then says that on or about 11 April 2021 he sent Mr Bach a letter advising of the steps he had taken to investigate the complaint and his decision to close the complaint, having regard to the outcome of those investigations.
[12] In his reply affidavit Mr Bach deposes that he was interviewed by Mr Smith shortly before the letter of 11 April 2021. He says he told Mr Smith he wanted to have the Police investigate.
[13] Given this conflict of evidence I raised with counsel at the commencement of the hearing whether this might be a case in which it would be necessary for there to be cross-examination on this issue.2
[14] Counsel for Mr Bach, Mr Ryken, made it clear that Mr Bach’s case was that part of the reviewable conduct was the alleged inaction on the part of the Prison Director to refer the matter to the Police and to assist Mr Bach in doing so when he first said that he wanted the Police involved. In other words the alleged reviewable conduct had already occurred before Mr Smith interviewed Mr Bach when Mr Bach allegedly said, according to Mr Smith, that he did not want the Police involved.
[15] Mr Ryken specifically made it clear that Mr Bach’s case was not that the Prison Director failed to refer the matter to the Police following the interview that Mr Smith had with Mr Bach which Mr Bach says occurred shortly before the 11 April 2021 letter. Mr Ryken’s position accordingly was that cross-examination would not be required as the Court would not be asked to make a finding of fact as to whether or not Mr Bach said to Mr Smith he did not want the Police involved.
2 Cross-examination is not permitted as of right in judicial review proceedings and leave should only be granted where it is “clearly necessary to enable the case to be disposed of fairly”: New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA).
[16] Given that explanation as to the way in which Mr Bach framed his case, counsel for the Prison Director, Mr Scragg, and counsel for the Attorney-General, Mr Kinsler, agreed with Mr Ryken that cross-examination was not necessary.
Statutory framework
Auckland South Corrections Facility
[17] ASCF is operated by Serco pursuant to a management contract with the Chief Executive of the Department of Corrections. Serco’s employees exercise statutory powers under the Act.3
General principles
[18] The Act and the Regulations provide the statutory framework for the operation of prisons in New Zealand. Section 5(1) provides:
5 Purpose of corrections system
(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a)ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and
(b)providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; and
…
[19] The statutory principles that guide the operation of the corrections system are set out in s 6(1) of the Act and relevantly include the following:
6 Principles guiding corrections system
(1) The principles that guide the operation of the corrections system are that—
3 Corrections Act 2004, ss 198 and 199AA.
(a)the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:
…
(f)the corrections system must ensure the fair treatment of persons under control or supervision by—
(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
…
[20] Section 6(2) of the Act requires that persons who exercise powers and duties under the Act or any Regulations made under the Act must take into account principles in s 6(1) that are applicable but only “so far as is practicable in the circumstances”.
[21] Prison managers must ensure that the prison operates in accordance with the purposes in s 5 and the principles in s 6.4 The Regulations supplement that requirement by providing for general duties of prison managers.5 Regulation 6 relevantly provides:
6 General duties of prison managers
(1) Subject to the Act and to the control of the chief executive, the manager of a prison is responsible for its good management and the fair, safe, secure, orderly, and humane management and care of its prisoners.
(2) The manager of a prison must ensure—
…
(e) that prisoners, staff members, and people who visit the prison are given the relevant information about their rights, duties, and responsibilities under the Act, these regulations, and the rules (including rules made under section 45A of the Act):
…
[22] In addition to the Act and the Regulations, policies and procedures in relation to decision-making at ASCF are set out in the Policy and Procedures Manual (PPM).
4 Section 12(a).
5 Regulation 6.
Where operational matters are not addressed in the PPM, staff refer to the Department of Corrections guidance known as the Prison Operations Manual (POM).
Complaints procedure
[23] The “corrections complaints system” is prescribed in pt 2, subpt 6 of the Act and pt 12 of the Regulations.
[24] Section 152 of the Act sets out the objectives and monitoring of the corrections complaints system, and relevantly provides:
(1)The corrections complaints system has the following objectives:
(a) to enable complaints by persons who are or were under control or supervision to be dealt with internally on a formal basis:
…
(c) to ensure that complaints are investigated in a fair, timely, and effective manner:
(d) to ensure that, if possible in the circumstances, complaints are dealt with reasonably promptly:
(e) to ensure that, if possible in the circumstances, complaints are dealt with at the lowest and most informal level:
(f) to ensure that all reasonable steps are taken to investigate complaints:
(g) to ensure that complainants are advised of the progress in investigating their complaints:
…
Section 154(1) relevantly provides:6
Assistance to make complaints
(1)The chief executive must ensure that a person under control or supervision is given the opportunity to—
(a) obtain assistance to enable the person to make a complaint; or
(b) verify any information recorded on a form or other document outlining a complaint.
6 I include s 154(1)(a) as although it was not pleaded Mr Ryken referred to it in oral submissions.
[26] Every prison is required to have an internal complaints system that satisfies the prescribed requirements.7
[27] Under the Regulations every staff member must provide reasonable assistance if asked, to enable a person who is or was under control or supervision to make a complaint to a manager of a prison.8
[28] Regulation 165 provides that every manager of a prison must ensure that a person who makes a complaint to the manager is: provided with an opportunity for an interview within 10 working days of the date on which the complaint is received;9 notified at monthly intervals in writing and, if practicable, orally on what progress is being made in investigating and dealing with a complaint;10 and notified in writing, and if practicable orally, of the outcome of the complaint, once any investigation has been concluded and a decision made.11
First cause of action: response to allegation of sexual assault by a staff member
[29] Mr Bach says that on or about 19 December 2020, during a pre-visit rub-down, he was sexually assaulted when a Serco staff member inserted a finger (through Mr Bach’s clothing) into his anus. The review application is not concerned with whether or not the alleged conduct occurred, but rather the manner in which the complaint was handled and investigated. Mr Bach says his complaint was not loaded into the Integrated Offender Management Screen system (IOMS).12 As already noted, in the written complaint made by Mr Bach on 20 December 2020 he said he wished to make a statement to the Police. He says he never spoke with the Police and the investigation that took place was inadequate. Mr Bach alleges the response by the Prison Director involves a breach of the following obligations imposed by the Act and Regulations:
(a)The duty to verify information recorded in a complaint (s 154(1)(b));
7 Section 153(1).
8 Regulation 161(a).
9 Regulation 165(1)(a).
10 Regulation 165(1)(b).
11 Regulation 165(1)(c).
12 An electronic programme which has a ‘complaints’ tab which enables a staff member to type in a prisoner complaint.
(b)The duty to investigate complaints in a fair, timely and effective manner (s 152(1)(c));
(c)The duty to ensure all reasonable steps are taken to investigate complaints (s 152(1)(f));
(d)The duty to ensure complainants are advised regarding the progress of the investigation (s 152(1)(g)); and
(e)The duty to notify complainants at monthly intervals in writing as to the progress of their complaints (reg 165(1)(b)).
[30] I will next set out the process followed by Serco for investigating complaints against staff members generally, then a chronology of events in relation to the investigation of Mr Bach’s complaint. I will then consider Mr Bach’s claim in the context of the statutory provisions on which he relies.
Process for staff-related complaints
[31] The Prison Director filed affidavits in support of his opposition to Mr Bach’s claim from Mr Smith and Ms McKibbin.
[32] Mr Smith has been Acting Deputy Prison Director at ASCF since 1 March 2021. Before then and in December 2020 he was the Operations Manager of Custodial Operations at ASCF. Mr Smith held the Operations Manager role for over six years. Before that he held other roles at Spring Hill Correctional Facility.
[33] Ms McKibbin has been at ASCF for seven years and was involved before the facility opened preparing policies and processes. Prior to working at ASCF Ms McKibbin worked for the Department of Corrections for 27 and a half years comprising 14 years at Mt Eden Prison and 13 and a half years at Tongariro Prison. She is an Operations Manager of Houseblock 1 where Mr Bach was housed at ASCF.
[34] Mr Smith outlines the procedure for making general complaints as well as the procedure for making complaints against staff members. As regards the latter,
Mr Smith says that they are not dealt with using the ordinary complaints procedures because they are inherently sensitive. He says that is for a number of reasons. First, if a complaint relates to the way in which a prisoner has been treated by a staff member, it is important to avoid any risk that the staff member or another staff member might retaliate against the prisoner. Secondly, complaints about staff can impact on that staff member’s employment. Mr Smith says accordingly such complaints must be handled in a sensitive manner. This is in the interests of both the prisoner who has made the complaint and the staff member who is the subject of the complaint.
[35] Mr Smith says prisoners can submit complaints against staff either by filling out a (standard) F24.01.02 form or by requesting the specific staff-related complaint form. This is then handed to a staff member in the same way as other complaints are. If the complaint is entered onto the IOMS system, it will be closed on that system and instead entered into the Serco Assurance Library (SAL)13 for the reasons Mr Smith mentions.
[36] ASCF’s Operations Manager then assigns the complaint via SAL to a senior staff member for investigation. Complaints are always assigned to a person more senior than the staff member about whom the complaint is made to ensure independence. Mr Smith says the Operations Manager conducts many of these investigations herself or himself. As Acting Deputy Prison Director, he conducts many of these investigations himself.
[37] ASCF aims to have the initial interview with the complainant within ten business days from the complaint being submitted. That is always the first step. However, what is required to investigate depends on the nature of the complaint. Typically, an investigation will involve interviewing all relevant staff and other individuals and checking for other pieces of evidence – such as CCTV footage and incident reports. Once all evidence is collated, the investigator will make a decision about whether or not the complaint should be upheld.
[38] Mr Smith says there are only a few people who are authorised to deal with complaints against staff given their sensitive nature. The outcome of the complaint
13 The Serco Assurance Library is one of the electronic databases at ASCF.
will not necessarily be detailed or disclosed to the prisoner as ASCF needs to balance its obligations as an employer, particularly privacy obligations it owes to its employees, against the rights of complainants. As a result of this the outcomes of staff-related complaints are not recorded in IOMS. Additionally the identities of prisoners submitting confidential complaints (such as staff-related complaints) are disclosed only to the extent required to assist in the investigation.
Mr Bach’s complaint and investigation
[39] Mr Bach completed a written complaint on a F24.01.02 form on 20 December 2020. He alleged that a Serco prison officer sexually assaulted him in a rub-down search before visits on 19 December 2020.
[40] On 23 December 2020 Richard Laws, the (then) Prison Director, acknowledged receipt of Mr Bach’s complaint in writing. The acknowledgement recorded a particular log number. Mr Smith says consistent with Serco’s policy in relation to staff-related complaints Mr Bach’s complaint was either removed from IOMS and entered on SAL or only entered on SAL. A copy of Mr Laws’ memorandum which is addressed to Mr Bach was annexed to Mr Smith’s affidavit. Mr Bach claims in his reply affidavit he did not receive the memorandum. It is not possible to resolve that dispute. But in any event Mr Bach does not rely on the alleged non-receipt as part of his claim.
[41] Mr Smith says while it is standard practice that a prisoner who makes a staff- related complaint receives an acknowledgement memorandum from the Prison Director it is not the Prison Director who investigates the complaint. In relation to Mr Bach’s complaint the Operations Manager at the time, Angela Curtis, began investigating and met with Mr Bach. A copy of her report dated 23 December 2020 is annexed to Mr Smith’s affidavit.
[42] In his affidavit in reply Mr Bach says he never spoke with Ms Curtis. However, in oral submissions the way in which Mr Ryken cast the evidence was that Mr Bach did not recall an interview with Ms Curtis. Mr Ryken says that is the position adopted following his discussions with Mr Bach. In other words Mr Bach does not rule out
the possibility that Ms Curtis did speak to him. Ms Curtis’ report of 23 December 2020 records that “Mr Bach wants to file charges with Police for sexual assault”.
[43] Mr Smith says that Ms Curtis no longer works at ASCF. She left a short time after 23 December 2020.
[44] Mr Smith says at some point Ms Curtis assigned the investigation to Ms McKibbin. He says he is not sure why the complaint was reassigned to Ms McKibbin but considers it may have been because Ms Curtis was about to leave ASCF and someone else was required to complete the investigation.
[45] Ms McKibbin says in her affidavit, having been assigned the complaint she had a lengthy discussion with Mr Bach on the morning of 17 February 2021 in which he recounted the complaint to her. In his reply affidavit Mr Bach says he does not know of a formal interview with Ms McKibbin. However, again the way Mr Ryken framed his submissions following his discussions with Mr Bach, was that Mr Bach did not recall having an interview with Ms McKibbin.
[46] Ms McKibbin further says that Mr Bach advised that he wanted to make a Police complaint against the Serco officer but did not know the officer and would not recognise him if he saw him.
[47] Mr Smith says that after Mr Bach was interviewed by Ms McKibbin on 17 February 2021 Mr Bach said he did not want her to investigate the complaint. It was at this point that Mr Smith took over the investigation.
[48] Mr Smith says for an investigation of this sort he would usually seek out CCTV footage. However, there are no CCTV cameras in the area where rub-down searches are carried out to protect the prisoner’s privacy. Mr Smith says in those circumstances he might consider looking at CCTV footage in the surrounding corridors to see whether the prisoner’s demeanour had changed. However, by the time he became involved in the complaint the CCTV footage for the surrounding areas was no longer available.
[49] Mr Smith says he interviewed Mr Bach although he does not state the date on which the interview occurred. Mr Smith says Mr Bach’s main complaint was that he felt violated and degraded and thought the officer who assaulted him only did it because he, Mr Bach, was a known sex offender. Mr Smith says he asked Mr Bach if he wanted him to lay a Police complaint. Mr Smith says he told Mr Bach there was no CCTV footage that he could give to the Police. Mr Smith also told Mr Bach he would be speaking with staff and investigating the complaint. Mr Smith says Mr Bach was happy with that and indicated he was content with that outcome and did not want to escalate it to the Police.
[50] As already noted in [12] above Mr Bach says he told Mr Smith he wanted the Police to investigate.
[51] Mr Bach also says in his reply affidavit that he was unaware of the availability of a specific form to fill out to lodge a complaint to the Police. Mr Smith confirms the file does not include a special form completed by Mr Bach.
[52] As part of his investigation Mr Smith obtained accounts from two of the officers who were present during the time of the alleged incident. One of those officers, Devinder Singh, said that Mr Bach was among the last of the prisoners to be searched on the morning of 19 December 2020 as part of the pre-visit procedures. Mr Singh said that when the officer reached Mr Bach’s waist area, Mr Bach became non-compliant and started accusing the officer of touching his “bum”. Mr Singh said that Mr Bach’s behaviour raised the officer’s suspicions that he may be hiding something.
[53] Mr Smith says Mr Singh told him that when the officer recommenced the search Mr Bach became a “nuisance”. On the officer’s third attempt, he was able to complete the rub-down of Mr Bach. Mr Smith says Mr Singh told him: the rub-down was completed in the presence of all the officers in the room; the searching officer followed the same and correct procedure of rub-down on all the prisoners; and Mr Bach was never touched “inappropriately on his bum area”.
[54] Mr Smith says Mr Singh advised him that in his opinion the searching officer’s approach “followed the approved technique of rub-down” in s 98 of the Act.
[55] Mr Singh’s email of 22 February 2021 to Ms McKibbin essentially sets out the same information he provided to Mr Smith. Ms McKibbin forwarded Mr Singh’s email to Mr Smith on 23 February 2021. The email is annexed to Mr Smith’s affidavit.
[56] Mr Smith says that he also spoke to the Site Emergency Response Team supervisor present at the time of the rub-down. Mr Smith says the supervisor told him that he considered the search was conducted correctly and that due to Mr Bach’s complaint at the time about the rub-down, another officer completed the search. That latter statement seems to be inconsistent with what Mr Singh said. He refers to the original officer completing the rub-down. Nothing turns on that for the purposes of this application.
[57] On or about 11 April 2021 Mr Smith sent Mr Bach a letter regarding the complaint. The letter outlined the steps Mr Smith had taken to investigate the complaint and said that there was no CCTV footage. The letter concluded with Mr Smith saying he was sorry if Mr Bach had felt uncomfortable during the process but searches were necessary to keep everyone safe. The letter ended saying “I find this complaint is unfounded and will be closed. If you wish you can raise this matter through the Inspector/Ombudsman”.
[58] Mr Bach had previously elevated another unrelated complaint to the Inspectorate. He therefore knew how that process operated. There is no evidence he did so in relation to this complaint. Nor is there evidence that he contacted the Ombudsman or made a complaint to the Police either before or after his release on parole which was just over two months after the date of Mr Smith’s letter. There was nothing to stop him from doing so. While the way in which Mr Bach frames his case does not require the Court to make a factual determination on what Mr Bach said to Mr Smith as to pursuing his complaint with the Police, I note that the way in which Mr Smith’s letter was written does not suggest Mr Bach wished to pursue a Police complaint.
[59] Finally, on the facts and as an observation, Mr Bach may have been better to proceed by way of a civil claim where evidence can be tested. There would have also been no issue as to the availability of Baigent damages on a successful claim. But in the end the Court has been able to extract the relevant uncontested facts for the purposes of an application for judicial review.
Discussion
[60] Both respondents say that there was no relevant exercise of public power. (Mr Bach does not argue his case on the basis there was a statutory power of decision involved). Alternatively, in the event that the Court finds there is a reviewable exercise of public power, the respondents say there was no unlawfulness. Counsel for both respondents submit Mr Bach is making a merits-based argument.
[61] Mr Ryken says not so. He says Mr Bach seeks a review of Serco’s response to its statutory obligations, particularly to s 152(1)(c), and that this is a procedural issue.
[62] Judicial review is the exercise of the High Court’s inherent jurisdiction to determine the legality of public acts. The Judicial Review Procedure Act 2016 provides procedural provisions for the determination of applications for judicial review. But it does not create the Court’s jurisdiction. The procedural provisions in the Judicial Review Procedure Act enable the Court’s review “in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.14
[63] The term “statutory power” is set out in s 5 of the Judicial Review Procedure Act. It provides:
5 Meaning of statutory power
(1)In this Act, statutory power means a power or right to do any thing that is specified in subsection (2) and that is conferred by or under—
(a) any Act; or
14 Judicial Review Procedure Act 2016, s 4: definition of “application for judicial review” and “application”.
(b) the constitution or other instrument of incorporation, rules, or bylaws of any body corporate.
(2)The things referred to in subsection (1) are—
(a) to make any secondary legislation; or
(b) to exercise a statutory power of decision; or
(c) to require any person to do or refrain from doing anything that, but for such requirement, the person would not be required by law to do or refrain from doing; or
(d) to do anything that would, but for such power or right, be a breach of the legal rights of any person; or
(e) to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person.
[64] The question then arises as to whether the Prison Director was exercising a power or right in terms of the above definition when he conducted the inquiry into Mr Bach’s complaint.
[65] The corrections complaints system in subpt 6 of pt 2 of the Act envisages an internal complaints system, including investigation of complaints by the Inspector of Corrections. There is also provision for a protocol between the Chief Executive of the Department of Corrections and the Ombudsman. A reference of a prisoner complaint to the Police is not part of the statutory regime.
[66] I turn first to s 154(1)(a). Although the pleading does not allege a breach of this provision, Mr Ryken referred to it in his oral submissions. The assistance referred to in s 154(1)(a) is assistance in making a complaint through the prison internal complaints system. It does not encompass complaints to the Police. Accordingly, Mr Bach cannot rely on this provision in support of his case that the Prison Director should have forwarded his complaint to the Police.
[67] As far as the application of s 154(1)(a) to the process followed by the Prison Director, Mr Bach had the opportunity to make his complaint. He completed a complaints form and was interviewed. He does not suggest he required further assistance to make his complaint or that there was no opportunity given to obtain that further assistance. There is accordingly no breach of s 154(1)(a).
[68] As far as s 154(1)(b) is concerned Mr Bach says in his complaint of 20 December 2020 that he asked for the name of the Serco officer but at the time of writing his complaint he had not been given the name. Mr Bach continues in his complaint that he had made his own enquiry and he provided the officer’s name (not entirely accurate) and he notes the officer’s ethnic origin. Mr Bach does not suggest further opportunity should have been given to him to verify that information. In any event the information provided by Mr Bach in his complaint form enabled the Prison Director to identify the occasion and the individual officer concerned. I do not consider there was a breach of s 154(1)(b).
[69] I mention reg 161 in passing although Mr Bach does not in fact rely on it. Regulation 161(a) requires that every staff member must, if asked for assistance in making a complaint, provide reasonable assistance to the prisoner. It supplements s 154(1)(a). Just as there was no breach of s 154(1)(a), there was no breach of reg 161.
[70]I next turn to s 152.
[71] In Hudson v Attorney-General15 Gwyn J heard an application by Mr Hudson, a prisoner at Rimutaka Prison who was seeking judicial review arising from decisions made by the Department of Corrections, individual staff members and members of the Department and the Prison Inspectorate. One of Mr Hudson’s complaints concerned the way in which his complaint had been handled by the prison, alleging breaches of s 152(1)(c), (f) and reg 161. Gwyn J made the following observation regarding s 152:
[75] I also agree with the respondent that s 152 of the Act does not provide a standalone ground of judicial review. Rather, it informs the way in which the Department exercises its statutory powers and responsibilities under subpt 6 of pt 2 of the Act and as set out in s PC.01 of the Manual. Given my findings that Mr Hudson received assistance, that any errors made were accidental and that any errors did not hinder a proper understanding of his complaint, there is nothing to suggest that the Department erred in exercising its powers, even when informed by the principles of s 152.
15 Hudson v Attorney-General [2020] NZHC 3231.
[72] I respectfully adopt the Judge’s observation that s 152 does not provide a standalone ground of judicial review. It contains organisation-level responsibilities which are not breached by the actions of a single employee.16
[73] Even if that is not correct I do not consider there was a breach of s 152(1)(c) in the way in which the internal investigation was conducted. Mr Bach’s complaint was investigated in a “fair, timely, and effective manner”. Mr Bach made his complaint on 20 December 2020; he was spoken to by a Serco officer within three days on 23 December 2020; after that officer left Serco a second officer spoke to Mr Bach on 17 February 2021; an officer who was present at the time of the rub-down search was spoken to on or before 22 February 2021; at Mr Bach’s request the investigation of his complaint was reassigned to Mr Smith; Mr Smith interviewed Mr Bach and obtained accounts from two officers who were present at the time of the rub-down; and the matter was concluded on or before 11 April 2021.
[74] As to timeliness, there is no timeframe in the Act or Regulations for completing an investigation into a complaint. Regulation 165(1)(b) provides that a person who makes a complaint must be notified at monthly intervals in writing and if practicable orally on what progress has been made in investigating and dealing with the complaint. The Regulation clearly anticipates that an investigation may take at least one month or more. In this case Mr Bach was notified of the outcome on 11 April 2021, just over three and a half months from the date the complaint was made. Having regard to the steps that were taken to conduct the investigation and in the absence of any prescribed timeframe I do not consider it can be said that the complaint was investigated in a manner that was not timely. Especially when bearing in mind the Christmas and holiday periods, resourcing challenges presented by the COVID-19 pandemic and Mr Bach’s request that the investigation be handed over to another staff member. Effectively, Mr Bach is asking the Court to undertake a merits-based review in the absence of a clear legal standard as to a time-frame.
[75] As for s 152(1)(f) Mr Smith’s evidence outlining the steps taken indicates that the process of the investigation was such that all reasonable steps were taken.
16 At [85].
[76] Then as to s 152(1)(g), Mr Bach was generally aware of progress of the investigation in the sense that he was spoken to by Ms Curtis on 23 December 2020, by Ms McKibbin on 17 February 2021, and again by Mr Smith (it seems) in early April 2021. In the absence of a timeframe in the Act I do not consider there was a breach of s 152(1)(g).
[77] For completeness, in relation to s 152, just as s 154 has no application regarding referral of a complaint to the Police, the same is also the case for s 152.
[78] In summary then in relation to s 152, even if the section operates as a standalone ground for judicial review, there was no breach in the manner in which the investigation into Mr Bach’s complaint was investigated. There was no unfairness or unreasonableness in the process followed.
[79] There was, however, a breach of reg 165(1)(b). Mr Bach was not notified at monthly intervals in writing of the progress in dealing with his complaint.
[80] In conclusion then, there was no reviewable breach of the Act or Regulations in relation to the complaints process save for the failure to inform Mr Bach at monthly intervals in writing of progress. I will address this breach in the next section of this judgment in which I will consider whether Mr Bach has made out his first cause of action under s 27 of the NZBORA.
Was there a breach of s 27 in the manner in which the investigation into Mr Bach’s complaint was conducted?
[81] It is not in dispute that the NZBORA applies to Serco staff and the Prison Director.17
[82]Section 27 of the NZBORA provides the right to justice as follows:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to
17 New Zealand Bill of Rights Act 1990, s 3(b).
make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
…
[83] First, as regards the manner in which the internal investigation process was handled (and leaving aside the omission to inform Mr Bach in writing of progress at monthly intervals), I have found there was no breach of the statutory provisions or regulations governing the corrections complaints process. In the absence of any such breach it is difficult to see how s 27 is engaged. Mr Ryken did not refer the Court to any cases to support this proposition. Mr Bach’s case was based on there being a breach or breaches of the Act and/or Regulations.
[84] There is a separate question of whether there was a breach of s 27 as Mr Bach alleges because, he says, his complaint should have been referred to the Police and it was not.
[85] Neither the Act nor Regulations provide the source of a duty to refer a complaint to the Police. There must be an underlying framework that guides the process. Here, the claim under s 27 is untethered to any statutory powers. It is effectively a free-floating claim under s 27. In the absence of a breach of a statutory power there is no standard to enable a measurement of what s 27 requires. Even construing the words “rights” and “interests” broadly it is difficult to see what rights were engaged. The complaint was investigated and there is no suggestion that Mr Bach was unable to contact the Police himself, either in custody or on release on parole.
[86] Further, there was no “determination”, in terms of s 27 by Serco officer Ms Curtis after she received Mr Bach’s written complaint in which he said he wanted to make a complaint to the Police.
[87] In conclusion there was no breach of s 27 arising from the fact that the Prison Director did not refer Mr Bach’s complaint to the Police.
[88] Finally, there is the issue of whether Mr Bach’s right to natural justice was breached having regard to the fact that he was not informed at monthly intervals in
writing as to the progress of his complaint. He should have been kept updated. But non-compliance does not inevitably lead to a conclusion that rights have been breached18 or that a decision or action is reviewable.19 Whether a right to natural justice has been breached turns on what is required to ensure fairness in a particular case.20
[89] Mr Bach does not give any evidence of what steps he might have taken had he been kept updated on a monthly basis in writing of the progress of the investigation. It is hard to envisage what such steps might have been. Even when told of the outcome at the end of the process, Mr Bach did not take any steps himself although he was given the opportunity to do so. I do not consider the failure to keep Mr Bach notified of progress on a monthly basis in writing rendered the investigation process unfair. There was no breach of natural justice.
[90]Mr Bach fails on his first cause of action.
Second cause of action: delay in receiving emails
[91] Mr Bach says that there were two occasions where there was a delay in receiving his inward emails. Two emails dated 9 November 2019 and 11 November 2019 were received 11 days later.
[92] Mr Bach says this was a breach of his statutory right under s 69(1)(h) and s 76(1) to send and receive mail. He says the delay in receiving the two emails is unfair and a breach of s 27 of the NZBORA.
[93] This claim can be disposed of in relatively short order. Sections 69(1) and 76 provide a right to send and receive “mail”. Mail is defined in s 3 of the Act as follows:
Mail means any letter, package, parcel, or postcard sent or delivered to or by a prisoner.
18 Toia v Prison Manager, Auckland Prison [2014] NZHC 867 at [24] (footnote omitted).
19 Hudson v Attorney-General, above n 15, at [75] and [85].
20 Graeme Martin Contracting Ltd v Disputes Tribunal [2018] NZCA 328, [2018] NZAR 1636 at [37], citing Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118.
[94] I note that the word in the definition is “means” not “includes”. As a consequence there is no statutory entitlement for a prisoner to receive emails. However, ASCF has policies and procedures that permit prisoners to receive emails, which as Mr Smith explains, must go through a vetting process.
[95] Mr Bach’s complaint invites the Court to comment on how resources within a prison are to be allocated. There are a number of decisions of this Court which hold that there is little scope for review of managerial decisions and it would be inappropriate for the Court to review the allocation of resources. It would be akin to micro-managing the operations at ASCF.21
[96] By way of example, in Mitchell v Attorney-General Ms Mitchell had commenced two proceedings in which she sought to judicially review the lawfulness of aspects of the way she was treated as a prisoner. The first proceeding included a claim regarding alleged delays in the sending of letters. On an application for strike out Collins J said:22
[34] … any complaints Ms Mitchell wishes to pursue about delays in relation to her mail being sent are best processed through the prison inspectorate system, and if necessary the Ombudsman. Judicial review in this context is a remedy of last resort.
[97] Collins J struck out the first judicial proceeding because it disclosed no reasonably arguable cause of action or was frivolous.23
[98] In the present case there is no evidence that Mr Bach made a complaint about the delay in receiving his two emails through other avenues available to him, namely the Prison Inspectorate or the Ombudsman, before turning to judicial review for remedy. Nor is there any evidence from Mr Bach as to the nature of the emails or the consequences for him arising out of the delay in receiving the two emails. In the absence of any such details it is difficult to apprehend how the delay could be ‘unfair’
21 Mitchell v Attorney-General [2021] NZHC 2946 at [62]-[67]; Genge v Department of Corrections [2018] NZHC 1302 at [37]; Greer v Prison Manager, Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9]; Mitchell v Attorney-General [2013] NZHC 2836 at [39]; Smith v Attorney-General [2016] NZHC 1145 at [28] (footnote omitted); Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [132] – [133]; Daemar v Hall [1978] 2 NZLR 594 (SC) at 603 – 604; Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [86].
22 Mitchell v Attorney-General, above n 21, (footnote omitted).
23 At [36].
or a breach of s 27 rights. Further, as to whether, in the absence of a breach of a statutory provision, s 27 of the NZBORA is engaged in relation to delay in receiving emails, Mr Ryken has not provided any authority in support of this proposition.
[99]For all the above reasons the second cause of action fails.
Result
[100]Mr Bach’s application for judicial review is declined.
A further hearing?
[101] As Mr Bach has failed in both his causes of action, a further hearing to consider remedy, as referred to in [9] above, is not required.
Costs
[102] I did not hear from counsel on costs. Costs are therefore reserved. In the event that either of the respondents seeks costs, the parties are directed in the first instance to endeavour to agree costs and file a joint memorandum. The joint memorandum is to be filed within 20 working days of the date of this judgment. In the event costs cannot be agreed, the respondents are to file and serve their memoranda in support of an application for costs within five working days of the date for the joint memorandum. Mr Bach is to file and serve his memorandum within five working days of the date of service of the respondents’ memoranda on him.
[103] Memoranda are not to exceed three pages (excluding attachments). I will determine costs on the papers.
Gordon J
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