Burke v Serco New Zealand Limited
[2019] NZHC 1951
•12 August 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-847
[2019] NZHC 1951
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of decisions by the respondent about the applicant’s temporary release for the purposes of employment
BETWEEN
JASON BURKE
Applicant
AND
SERCO NEW ZEALAND LIMITED
Respondent
Hearing: 23 July 2019 Counsel:
N Levy and A L Hill for applicant
L Clark and B A Mathers for respondent
Judgment:
12 August 2019
RESERVED JUDGMENT OF DOBSON J
BURKE v SERCO NEW ZEALAND LTD [2019] NZHC 1951 [12 August 2019]
Contents
Introduction [1]
The statutory and regulatory scheme [4]
Mr Burke’s circumstances [11]
The decision [21]
Grounds for review [28]
Preliminary threshold considerations [32]
Failure to take account of mandatory considerations [40]
Failure to consider “undue risk” [40]
Rehabilitation and reintegration needs and the Board’s recommendation [45]
HRRT’s not supporting RtW was over-simplified [53]
Matters wrongly taken into account [56]
Flight risk [56]
Sexual offending not mentioned in safety plan [63]
Interpersonal style and litigious personality [69]
Breach of natural justice [73]
Unfairness and unreasonableness [77]
Overarching submission – deference to the expertise of the advisory panel [80] Outcome [82]
Concluding comment [83]
Introduction
[1] “Release to Work” (RtW) is an initiative provided for in the Corrections Act 2004 (the Act) involving temporary release of a sentenced prisoner to undertake work in the community.1 It is generally part of rehabilitative programmes, and more specifically re-integrative programmes, intended to better prepare prisoners for life in the community after their release. Completion of RtW is generally an important consideration in assessments by the Parole Board (the Board) of applications for release on parole.
[2] This proceeding may be treated as a general challenge to the standards of reasonableness and fairness required of prison authorities in considering applications for RtW. The Court was asked to assess standards required by reference to the specific example of the applicant (Mr Burke) on one occasion. A subsequent change in his circumstances renders any concerns for relief affecting him to now be moot.
[3] The respondent (Serco) operates the Auckland South Correctional Facility (ASCF) pursuant to a management contract with the chief executive of the Department
1 Corrections Act 2004, s 62 – see [5] below.
of Corrections (the Department). In the management of that facility, Serco employees exercise statutory powers, effectively standing in the shoes of delegates of the chief executive in terms of powers under the Act.2 In the relevant period, Mr Burke was a prisoner at ASCF, so his complaints relate to the conduct of Serco employees carrying out those delegated powers.
The statutory and regulatory scheme
[4] The Act requires the provision of rehabilitative programmes in the following terms:
52 Rehabilitative programmes
The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programmes are provided to those prisoners sentenced to imprisonment who, in the opinion of the chief executive, will benefit from those programmes.
[5]The statutory power directly in issue is that in s 62 of the Act, which provides:
62 Temporary release from custody or temporary removal from prison
(1)This section applies to every prisoner who is a member of a class of prisoners specified in regulations made under this Act as a class of prisoners who may be—
(a)temporarily released from custody under this section; or
(b)temporarily removed from prison under this section while remaining in custody under the control or supervision of an officer, staff member, or probation officer during the period of removal.
(2)The chief executive may give authority for the temporary release from custody or temporary removal from prison of a prisoner to whom this section applies—
(a)for any purpose specified in regulations made under this Act that the chief executive considers will facilitate the achievement of 1 or more of the following objectives:
(i)the rehabilitation of the prisoner and his or her successful reintegration into the community (whether through release to work (including self-employment), to attend programmes, or otherwise):
2 Sections 198 and 199AA.
(ii)the compassionate or humane treatment of the prisoner or his or her family:
(iii)furthering the interests of justice; or
(b)in any circumstances that, in the opinion of the chief executive, are exceptional and that will facilitate the achievement of 1 or more of the objectives described in paragraph (a).
(3)In exercising the powers conferred by subsection (2), the chief executive must consider—
(a)whether the release or removal of the prisoner might pose an undue risk to the safety of the community while the prisoner is outside the prison:
(b)the extent to which the prisoner should be supervised or monitored while outside the prison:
(c)the benefits to the prisoner and the community of removal or release in facilitating the reintegration of the prisoner into the community:
(d)whether removal or release would undermine the integrity of any sentence being served by the prisoner.
[6] Regulation 26 of the Corrections Regulations 2005 (the Regulations) defines the classes of prisoners who may be temporarily released under s 62 of the Act. It is common ground that Mr Burke fell within the qualifying classes of prisoner. At the relevant time, reg 27 specified an exhaustive list of purposes for which prisoners might be temporarily released under s 62. Those purposes included undertaking paid employment and seeking employment. Regulation 27 was repealed with effect from September 2017, after the decision under challenge.
[7] Section 62 is to be interpreted in light of the purpose and principles of the corrections system, which are set out in ss 5 and 6 of the Act. Relevant components are:
5Purpose 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
(c)assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and …
6Principles guiding corrections system
(1)The principles that guide the operation of the corrections system are that—
(a)the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:
(b)victims’ interests must be considered in decisions related to the management of persons under control or supervision:
(c)in order to reduce the risk of reoffending, the cultural background, ethnic identity, and language of offenders must, where appropriate and to the extent practicable within the resources available, be taken into account—
(i)in developing and providing rehabilitative programmes and other interventions intended to effectively assist the rehabilitation and reintegration of offenders into the community; and
(ii)in sentence planning and management of offenders:
(d)offenders must, where appropriate and so far as is reasonable and practicable in the circumstances, be provided with access to any process designed to promote restorative justice between offenders and victims:
…
(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:
(g)sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:
(h)offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community:
…
(2)Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.
…
[8] The chief executive of the Department is authorised to issue guidelines and instructions on the exercise of powers under the Act. This is primarily done through a Prisons Operation Manual (POM), which provides procedures for various tasks required in prison, including processing applications for RtW. The POM regulates the conduct by Serco staff at ASCF.
[9] The process contemplated in M.04.07.03 to M.04.07.05 of the POM provides for prison staff to complete the appropriate form for a prisoner to apply for RtW. The decision is then made by the prison director, who receives advice on the application from an advisory panel. If the application is declined, the prisoner must be given written reasons for that decision. Prisoners complaining about an RtW decision can do so through the usual prisoner complaints process.
[10] The basic premise of Ms Levy’s submissions on Mr Burke’s behalf was that the standard of the conduct involved in deciding that Mr Burke not be approved for RtW breached the standard specified in s 6(1)(f)(ii) in that the steps taken did not ensure that decisions about him were taken in a fair and reasonable way.
Mr Burke’s circumstances
[11] In April 2004, Mr Burke was sentenced to preventive detention for serious sexual offending. The offending had occurred approximately one month after he had been released from prison after serving eight and a half years for similar serious sexual offending. Although initially eligible for parole in May 2010, in May 2011 the Board imposed a two year postponement order on that eligibility.
[12] In 2013, whilst in custody at Rangipo Prison, Mr Burke completed 13 months of individual counselling, and in 2014 he completed a drug treatment unit programme at Rimutaka Prison. In 2015, he completed the adult sex offender treatment programme whilst at Waikeria Prison.
[13] In March 2016, Mr Burke appeared before the Board, but was not seeking release on parole. The Board’s decision on that occasion records that his counsel requested that the Board specify RtW and escorted outings as relevant activities to be completed before Mr Burke’s next hearing before the Board. The Board commented:
That is a logical and sensible way forward. … [These] are relevant activities which we expect to be completed by the specified date (a further hearing in May 2017).
[14] In September 2016, Mr Burke was transferred to ASCF and in November 2016 applied for RtW. Ms Clark pointed out that he had previously made applications for RtW when in custody at other prisons and can be assumed to have understood the process. He was waitlisted at that time because he had not yet commenced internal employment, and prisoners who had been employed within ASCF for six months were given preference.
[15] At a meeting of the advisory panel in April 2017, Mr Francois Meyer, assistant director of rehabilitation at ASCF, advised that the Board had previously recommended Mr Burke be considered for RtW. This led Mr Meyer to recommend to the panel that an application form should be completed in respect of Mr Burke for consideration at the panel’s next meeting, and that occurred.
[16] In early May 2017, Mr Burke appeared again before the Parole Board. The Board was aware of the advisory panel’s intention to consider an RtW application at its next meeting and recorded its support for that application.
[17] On 11 May 2017, the advisory panel met and recommended that Mr Burke’s application for RtW be declined. Consistently with that recommendation, Mr Sean Mason, the deputy prison director, declined Mr Burke’s application. Mr Burke was advised of that on 24 May 2017.
[18] On Mr Burke’s application, a review of the decision was undertaken by the prison inspector, but the inspector considered that the decision to decline the application was appropriate.
[19] In July 2018, Mr Burke requested the Minister of Immigration to direct his early release from prison and deportation to Australia. After investigation, on 13 December 2018, the Minister wrote to Mr Burke, advising that he was deemed not to hold a resident visa since he renounced his New Zealand citizenship on 26 June 2012, with the consequence he had been in New Zealand unlawfully since then. The Minister declined the request for early release and deportation but advised that Mr Burke would be deported to Australia once his sentence was complete or he was released on parole. That change in Mr Burke’s immigration status rendered him ineligible for RtW.
[20] Prior to the receipt of the Minister’s letter, Mr Burke had commenced this proceeding on 12 November 2018.
The decision
[21] Ms Levy challenged both the advisory panel’s recommendation to the deputy prison director, and the deputy director’s decision acting on that recommendation to decline Mr Burke’s application. Mr Meyer provided an extensive affidavit covering the process involved, his own interactions with Mr Burke and addressing some of the matters that were taken into account by the panel.
[22] Those preparing the application form were required to consider whether the prisoner met certain criteria, which would result in him being classified as “high risk high profile”. In that event, the application was to be referred to the high-risk response team (HRRT), a specialist team at the head office of the Department. Mr Burke qualified under those criteria and accordingly his application was referred to the HRRT. The comments from the HRRT were included within the papers considered by the advisory panel. Those comments included an observation that Mr Burke might be a flight risk because he had been born in Australia and had stated previously that was where all his support was. Overall, the HRRT comment recommended declining the RtW application at that time.
[23] The minutes of the advisory panel meeting extend to two pages of double- spaced summaries of contributions by those present. With the exception of Mr Meyer, whose affidavit identifies his participation, the others are identified by the role in which they participated rather than by name.
[24]The minutes record that the following matters were considered:
· Mr Burke struggles with challenging inter-personal situations, using threats of litigation to try to get his way. If frustrated whilst on RtW he might resort to doing this. Mr Meyer’s opinion as a psychologist was that Mr Burke needs psychological support to deal with his challenging, anti- authoritarian, inter-personal style.
· Mr Burke’s plan as to how he would keep himself safe in the community was treated as addressing his drug offences, but not his sexual offending.
· Concerns about lack of support in New Zealand, with most of his support being in Australia, and whether he might be a flight risk.
· The HRRT team did not support his application.
· Mr Burke did not get over negative feedback and remained angry about it for months.
· Mr Burke remained a moderate to high risk of re-offending, even after treatment, although he was challenging that categorisation.
[25] Given the context that the application had been considered because of a direction from the Board under s 21 of the Parole Act 2002, the minutes record the deputy prison director summing up the discussion as resulting in unanimous views that the application should not be supported. The fact that the panel’s consideration was because of the s 21 direction did not mean that Mr Burke had to go out to work. He is reported as concluding “I think it is an unnecessary risk”.
[26] The meeting minutes record that Mr Burke’s application and that of one other prisoner were considered for a combined length of one hour and 24 minutes.
[27] The letter recording the deputy director’s reasons for declining the application cited the following:
· [HRRT] do not support RtW
· Community Services expressed concern that Mr Burke acknowledges his drug offences, but not the sex offending in regards to Mr Burkes Safety Plan.
· Community Police have serious concerns Mr Burkes interpersonal style being a concern to any potential RtW employer. Psychological Services can provide support around mood management and frustration tolerance.
· Flight Risk
Grounds for review
[28] Ms Levy characterised several of her criticisms as failures by the advisory panel to have regard to relevant considerations or taking into account considerations that were irrelevant. In other respects, she submitted that the process breached Mr Burke’s rights to natural justice.
[29]Put simply, Ms Levy submitted the advisory panel failed to take into account:
(a)the mandatory consideration of “undue” risk as opposed to “unnecessary” risk;
(b)the Board’s implicit view (in specifying that Mr Burke be considered to undertake RtW) that he was not an “undue” risk to public safety; and
(c)the HRRT’s suggested ways of mitigating the risk Mr Burke did pose to public safety.
[30] As regards material wrongly taken into account, Ms Levy submitted the advisory panel:
(a)erroneously considered Mr Burke was a flight risk;
(b)erroneously considered Mr Burke did not acknowledge his sexual offending or the causes of it in his safety plan; and
(c)gave disproportionate weight to perceived negative personality traits that Mr Burke possessed.
[31] Finally, the submission on breaches of natural justice was said to arise because the application form prepared on his behalf was not discussed with him, thereby denying him the opportunity to correct errors and answer concerns in it. It was further submitted that he was not given an opportunity to respond to specific concerns raised by the panel when considering his application.
Preliminary threshold considerations
[32] Ms Clark responded to many of the criticisms raised by Ms Levy by submitting that they mischaracterised the essence of the complaints. She submitted that Mr Burke, in reality, sought a merits review and that he was taking points that might arise on an appeal, including arguments that the weight attributed to certain considerations by the advisory panel was either too great or too little.
[33] Ms Levy was not consistently persuasive in her submissions that the criticisms did not relate to the merits, but rather to the adequacy of the process. Nonetheless, given the combination of circumstances and grounds of argument, it is not a case in which the application for judicial review should be dismissed at the threshold stage.
[34] In somewhat similar vein, it is necessary to briefly consider a matter that can be described as “judicial review of prison management matters”. There is a relatively substantial body of authorities dealing with challenges by serving prisoners to decisions made by prison authorities affecting them personally. Those decisions establish a refusal by the Court to be involved in “micro managing” prisons.3
[35] In cases challenging decisions on prisoners’ applications to participate in RtW, the Court has confirmed that there is no right or entitlement to participate and that decisions about whether to authorise temporary release require the exercise of a broad discretion. That discretion is governed by the mandatory considerations in s 62(3) of the Act.4
[36] There have also been concerns about the lack of utility of relief where the decisions on individual applications have been challenged, but where the circumstances have inevitably changed by the time the judicial review is heard. This raises concerns that the challenges are essentially to the merits of the decision rather than its legality.5 Further, so far as relief is concerned, outcomes have been influenced by findings that, by the time of hearing, the result is moot for the applicant. Ms Levy readily concedes that is the case here.
[37] In previous judicial reviews, the Department has objected to engaging in the substance of criticisms where they relate to the weight given to various considerations by the decision-maker. A focus on the merits and the absence of utility of any relief for the applicant may be sufficient for the Court to decline to engage on the substance of the criticisms.
[38] On these points, Ms Levy relied on the decision of Fitzgerald J in Smith v Attorney-General, which she described as the last word on judicial review of decisions about RtW.6 That case not only distinguished decisions on applications for RtW from “micro managing” decisions, but Ms Levy submitted that it provided an example of
3 Greer v The Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9]; Mitchell v Attorney-General [2013] NZHC 2836.
4 For example, see Ericson v Chief Executive of the Department of Corrections [2015] NZHC 1157 at [20].
5 For example, see Ericson v Chief Executive of the Department of Corrections [2013] NZHC 3035.
6 Smith v Attorney-General [2019] NZHC 835, [2019] NZAR 767.
the Court being prepared to take a “hard look” level of scrutiny on judicial review. The Smith decision raised distinguishable criticisms of the process, but I respectfully adopt the approach to consideration of the process by which applications for RtW are determined.
[39] On that basis I now proceed to consider the specific grounds of review and criticisms of the process raised by Ms Levy.
Failure to take account of mandatory considerations
Failure to consider “undue risk”
[40] As already mentioned, Mr Mason concluded the minutes from the advisory panel’s meeting with “I think it is an unnecessary risk”. Ms Levy contrasted Mr Mason’s view that RtW would be an “unnecessary risk” with the mandatory requirement under s 62(3)(a) to consider whether release of the prisoner might pose an “undue risk” to the safety of the community. Ms Levy drew a distinction between an undue risk, which arguably involves weighing the advantages to Mr Burke of being granted RtW against the extent of risk that his release for work would create for members of the community, and an “unnecessary” risk, which she suggested involved only a one-sided analysis of whether Mr Burke’s release would create a risk. If it did, that risk could be avoided by declining the application.
[41] In this regard, Ms Levy invited me to test sceptically the terms in which Mr Mason has reviewed the grounds on which he made the decision in an affidavit completed in May 2019, two years after the decision was made. In his affidavit, Mr Mason expresses the view that the application form completed for Mr Burke contained the expected level of detail and that he read and considered Mr Burke’s letter to the panel, and his CV and work references, before making the decision. Mr Mason considered it was clear from the form that participation in RtW would have benefits for Mr Burke. Mr Mason states that in assessing the panel’s discussion and recommendation:
I concluded that Mr Burke was not suitable for RtW because he posed an undue risk to the public safety.
[42] To the extent that this retrospective description of the decision shifted the ground from a finding of “unnecessary” risk to conform with the statutory test for an undue risk, Ms Levy argued that Serco should be held to the contemporaneous record of the reasoning.
[43] Ms Clark’s response on this was that there was no material difference between the context in which the notes recorded “unnecessary” risk, and the statutory test of undue risk. The use of the word “unnecessary” in the minutes was not sufficient to make out an error of law in the way the application was considered. In any event, the risks identified by the advisory panel could not be rejected as constituting less than an undue risk to the community.
[44] I am not persuaded that the use of “unnecessary risk” reflects any material error. Assessed in context, the advisory panel clearly considered there to be an appreciable level of risk that was not justified. It was therefore an undue risk.
Rehabilitation and reintegration needs and the Board’s recommendation
[45] Closely related to the first ground, Ms Levy criticised the advisory panel’s reasoning (as reflected in its minutes) for omitting an evaluation of the relative importance to Mr Burke of RtW as a step towards reintegration. Arguably, a balanced assessment of Mr Burke’s application would require the panel to recognise the relative importance to Mr Burke of undertaking RtW as a step towards parole.
[46] Allied with this criticism was an alleged failure to have regard to the Board’s recommendation that RtW be undertaken. Ms Levy submitted that the safety of the community is the paramount consideration for the Board. Accordingly, the advisory panel ought to have respected the view which she attributed to the Board, namely that its expectation Mr Burke would complete RtW before his next Board hearing necessarily meant that the Board had decided there would not be any undue risk to the community in temporary releases of this nature for Mr Burke.
[47] The statutory position is that a Parole Board recommendation such as this is not binding on the deputy prison director in making such decisions.7 Ms Levy invited analogy with the approach in the first of the Ericson decisions where MacKenzie J observed:8
[22] However, I consider that it is incumbent on the prison authorities to take into account, in considering future applications for temporary release, that the Parole Board has recognised that the applicant is in the reintegration phase of his sentence. It will not be sufficient, in considering applications for temporary releases to give weight to the applicant’s previous escape, without also giving weight to the need for temporary releases as part of a planned progression to parole. The prison authorities will need to be able to explain the reasons for any refusal, to the satisfaction of the Parole Board. Consideration may have to be given to the development of a more specific plan for reintegration to address this issue.
[48] The context in which the advisory panel considered Mr Burke’s application was that Mr Meyer had brought forward the time at which it would be considered, because of the Board’s expectation. The minutes record that the panel was mindful of the Board’s expectation, but was also conscious that did not determine the outcome of the application. It would constitute improper derogation of the deputy prison director’s obligations to rest on any implicit view attributed to the Board that they considered there was no undue risk, when a view on that had separately to be taken by the deputy prison director.
[49] Further, I am not persuaded that the context in which the expectation of the Board was conveyed could reasonably have been taken by the advisory panel as representing a considered view by the Board that it considered there would be no undue risk in releasing Mr Burke on RtW. It seems at least as likely that the Board expressed the expectation in terms of its process under s 21A(b) of the Parole Act, fully appreciating that such an expectation did not bind the advisory panel which would research the application from its own perspective and in discharge of its distinct responsibilities.
7 Parole Act 2002, s 21A(b): where an offender’s next consideration for parole is more than 12 months after the date of a current hearing, the Board may specify the relevant activities (if any) that the Board expects will be completed by the specified date.
8 Ericson v Chief Executive of Department of Corrections, above n 5.
[50] I do not consider this inconsistent with the approach indicated by MacKenzie J in the earlier Ericson decision. In the circumstances of Mr Burke’s application, the advisory panel and the deputy prison director were mindful of the Board’s expectation that the terms of the decision would have afforded reasons for the refusal.
[51] This case can be contrasted with that of Mr Taylor on the issue of the influence of a view about the prisoner adopted by the Parole Board.9 In that case, Mr Taylor had been approved for RtW but the Parole Board considered that he should not have been approved. In light of the Parole Board’s thorough consideration of the circumstances, the relevant prison director prudently reconsidered the grant of Mr Taylor’s application for RtW and reversed it.
[52] I am not persuaded that any material lack of balance in the analysis by the advisory panel can be made out because of the absence of a record in its minutes of how important it was to Mr Burke to be approved for RtW. The whole context of his application was that it was an important, and most likely necessary, precursor to a favourable consideration for parole. There can be no suggestion that the advisory panel ought to have tolerated an otherwise troubling level of risk to the community from Mr Burke’s release because the relative importance to him of completing RtW meant that such risk was not an undue one.
HRRT’s not supporting RtW was over-simplified
[53] The letter to Mr Burke containing reasons for the decision not to approve his application included “Corrections HRRT do not support RtW”. Ms Levy submitted that over-simplified the views conveyed by HRRT, as some of its content was supportive of the application. She further submitted that the HRRT suggested ways to mitigate risks posed by Mr Burke were he to undertake RtW and that the advisory panel failed to consider them.
[54] The overall effect of the HRRT analysis was clearly that the application ought not to be approved. The summary “Corrections HRRT do not support RtW” is
9 Smith [and Taylor] v Attorney-General, above n 6.
therefore not inaccurate or misleading. For example, the final paragraph of the HRRT comments included in the application form was as follows:
Whilst Mr Burke appears to be compliant at present, it is my assessment that further work needs to be completed around mitigating his potential risks prior to allowing him to participate in release to work activities. It is noted the Case Manager is working alongside Mr Burke to create a safety plan specific to this proposal which will highlight both Mr Burkes ability to articulate and manage his perceived risk factors in an external setting which may alleviate some of the concerns raised.
[55] There is nothing in the terms of the minutes or elsewhere in the evidence that suggests the advisory panel was not cognisant of the balance of the comments from HRRT.
Matters wrongly taken into account
Flight risk
[56] It was argued for Mr Burke that it was a mistake of fact to treat him as a flight risk and to rely on that as a reason for declining the application. Ms Levy submitted that there was no information suggesting there was any real chance of Mr Burke absconding from New Zealand and that references to that risk in the materials were purely speculative.
[57] Generally, a mistake of fact in the administrative law sense requires a relatively absolute error, generally in relation to an existing fact.10
[58] A section of the application form completed for Mr Burke addressed details about the applicant’s passport. Next to the statement “Passport No. is”, the application was completed with the words:
Have this information been confirmed? What is his citizen status. What are the chances of him skipping NZ to Australia.
[59] In a section of the form completed by Mr Meyer, he recorded the statement Mr Burke had made:
10 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [27]; E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044 at [66]; Smith v Attorney- General [2017] NZHC 136, [2017] NZAR 331.
Ultimate goal return home to Australia however long it takes.
[60]Comments in the form from HRRT included:
Further considerations highlighted are that Mr Burke was born in Australia, has stated this is where all his support is located and has indicated a desire to be deported or return to Australia upon his release. It is unclear as to whether he has the ability to access an Australian passport. It is noted he has one previous misconduct relating to risk of escape however if Mr Burke is properly monitored, the concerns over flight risk should be reduced.
[61] The reference to a “previous misconduct” is an overstatement in that an incident in 2004 was rated as an alert rather than misconduct.
[62] I am not persuaded that the prospective concern that Mr Burke may be a flight risk can be made out as an error of fact. It is a prospective opinion on a matter highly relevant to the advisory panel in assessing the nature and extent of risks of Mr Burke being granted RtW. There were circumstances that warranted the concern being raised. The circumstances in Mr Burke’s case might not be recognised by all advisory panels as justifying a concern that he was a flight risk, but the opinion that such risk arose was not irrational or unreasonable in the administrative law sense. In his affidavit in support of the application for judicial review, Mr Burke’s unequivocal denial that he would seek to go to Australia other than lawfully is not a sufficient basis to transform the opinion that was aired by the advisory panel into a mistake of fact.
Sexual offending not mentioned in safety plan
[63] Part of the preparatory work done by a prisoner seeking RtW is completion of a safety plan intended to identify the types of risks that might trigger re-offending, and strategies developed by the prisoner to prevent that occurring.
[64] The minutes of the advisory panel include an observation by the community representative that Mr Burke’s safety plan acknowledged his drug offending but not his sexual offending, which is what he was in prison for. That concern was also acknowledged by another member of the panel.
[65] Ms Levy submitted that this was an inaccurate interpretation of the safety plan, as well as an unrealistic expectation as to what its content might include. She
submitted that it was so clearly implicit that Mr Burke was mindful of triggers that might increase the risk of his committing further sexual offending that it was unnecessary for that observation to be explicitly recorded. She also submitted that the application unfairly omitted aspects of an earlier report from March 2016 that contained more positive comments on Mr Burke’s performance in another programme:
During the DTU programme his most significant changes were: developing victim empathy, learning to be less aggressive and more assertive and challenging his negative values. Burke developed an comprehensive relapse prevention plan in which high-risk situations were able to be recognised and managed.
[66] Because the March 2016 report could not be located when Mr Meyer was settling the content of the application form, Ms Levy submitted that triggered an obligation for those preparing the form to acknowledge with Mr Burke that it might be relevant, and invite him to provide it.
[67] In the context of everything provided to the advisory panel, I am satisfied that the panel’s concerns about the safety plan criticised by Ms Levy were inarguably reasonably open to its members. I do not accept that any appropriate acknowledgement of the nature of his prior sexual offending is necessarily implicit. Nor do I accept that the protective measures he had identified for himself should have been read by members of the advisory panel as adequately addressing the risks of further sexual offending. The concerns raised were relevant and entirely reasonable. I do not accept that there was a material lack of balance in the materials available to the advisory panel that might influence the view they took of the adequacy of the safety plan Mr Burke had written.
[68] The circumstances of the unavailability of the 2016 report did not trigger a specific obligation for Serco’s staff to invite Mr Burke to provide that report. Certainly, it may have been preferable for the enquiry to be made of Mr Burke, but that is not a reviewable omission. I am not persuaded that reference to it would have altered the view of the safety plan adopted by the advisory panel members.
Interpersonal style and litigious personality
[69] Concerns on this matter are addressed prominently in the application and also appear from the minutes of the advisory panel meeting to have been an important consideration to it. In Mr Meyer’s contribution to the application, he stated:
After careful consideration of information contained in this application and information from file review, I am of the opinion that Mr Burke needs ongoing support around emotional management and frustration tolerance.
Throughout his prison and psychological file, recurrent themes appear to be anger, frustration, an antiauthoritarian attitude, victim stance and bitterness about the injustice perpetrated against him. It was noted in a case note … that, after an intensive treatment intervention his psychologist proposed a need for ongoing support with his interpersonal interaction style and his emotional expression.
[70] Ms Levy’s criticisms of the panel’s focus on this consideration are inarguably a challenge to the merits of the decision. Suggestions that the comments lacked balance, and that the panel could have seen this consideration in a different light if Mr Burke was afforded an opportunity to respond to the negative observations about him, do not raise a ground for review. The records showed a pattern of conduct justifying a concern about Mr Burke’s personality that was, on any view, relevant to an assessment of his likely performance if approved for RtW.
[71] Superficially, citing a concern that Mr Burke readily threatened litigation to advance claims about his treatment appears misconceived. In claiming rights to be treated differently, all citizens including sentenced prisoners are entitled to contemplate litigation. Whether a perceived grievance reflects an actionable breach of any rights asserted by the claimant is entirely another matter. However, it is clear that the context in which frequent threats of litigation by Mr Burke were raised is an instance of assertive and potentially aggressive or anti-authoritarian behaviour. It was reasonable to project that such attitudes might well impact on Mr Burke’s behaviour if allowed to work outside prison.
[72] Reference to this proclivity accordingly cannot be treated as the advisory panel having taken an irrelevant consideration into account.
Breach of natural justice
[73] Ms Levy submitted that Mr Burke had an entitlement to natural justice in the manner in which his application was dealt with arising from s 6(1)(f) of the Act. She submitted that the obligation to treat Mr Burke fairly required that he be aware of the content of the application form that had been prepared for him, and matters which concerned the panel because of their absence from the form. Without asserting an entitlement to vet or approve all information that went to the panel, Ms Levy submitted that he should have been made aware of the matters covered and been entitled to make his own submission. On Ms Levy’s analysis, there were relevant omissions from the materials Mr Meyer was able to collate about Mr Burke’s performance in relevant programmes he had previously undertaken in prison, which Mr Burke may have been able to provide had he known of those omissions.
[74] I did not take this criticism to suggest there had been non-compliance with any of the procedures directed in the POM. Any obligation imposed on those preparing applications for a prisoner to advise of the matters that have been included in the application, or to identify the matters likely to be most material to the advisory panel, is beyond the scope of the procedures provided for.
[75] The obligations of natural justice imposed on those exercising statutory powers are infinitely variable depending on context.11 I am not persuaded that the procedures set out in the POM are inadequate in any systemic sense. In any event, I would not contemplate the imposition of the specific obligations Mr Burke asserts in the general run of cases, where applications are likely to be completed in a wide variety of circumstances. That is especially so in the absence of the Department that is responsible for the procedures.12
[76] In any event, I am not persuaded that Mr Burke’s individual circumstances gave rise to natural justice obligations that rendered the procedure that was followed inadequate. Section 6(1)(f)(i) of the Act required the Department (Serco in the immediate case) to provide prisoners under their control with information about the
11 For example, see Pritchard v Evans [2013] NZHC 3150, [2014] NZAR 370 at [35].
12 See concluding comment at [83] below.
rules, obligations and entitlements that affect them. Clearly Mr Burke was relevantly informed of his entitlements to make an application. Section 6(1)(f)(ii) imposes the obligation for the Department/Serco to make decisions about persons such as Mr Burke in a fair and reasonable way. For all the reasons I have set out, I am satisfied that obligation was discharged here. The further obligation under s 6(1)(f)(ii) was that persons have access to an effective complaints procedure. That was available to Mr Burke and he resorted to it.
Unfairness and unreasonableness
[77] An overlay to many of the specific criticisms advanced by Ms Levy was that the approach adopted was either unfair or unreasonable. Ms Levy emphasised that on both requirements it was the explicit standard under the Act, rather than the more general administrative law concepts of unfairness or unreasonableness. Ms Levy did not attempt to define what standard of fairness or reasonableness was required of those carrying out the statutory functions. Sensibly, those requirements cannot be absolute but must be to a standard reasonably required in the context of the processes required by the Act itself, by the regulations and the POM. Reflecting on the various criticisms, I am not persuaded that there was a lapse from a standard of fairness that deviated materially from the standard of fairness that could reasonably be expected in the context of that statutory obligation.
[78] Unreasonableness in the administrative law sense classically requires that a decision under challenge was one that no reasonable decision-maker could have arrived at.13 In this case, the cumulative impact of the most optimistic of Mr Burke’s various criticisms do not raise a tenable challenge to the outcome because it is not tenable to contend that an advisory panel and deputy prison director, properly directed on the law, could not have arrived at the decision they did. Given that outcome, I see no scope for finding that there was a material extent of unreasonableness when measured by some other, more general, obligation of reasonableness.
[79] I am satisfied there is no basis on which Mr Burke would be entitled to a finding that the process adopted was materially flawed.
13 For example, see Smith v Department of Corrections, above n 10, at [114].
Overarching submission – deference to the expertise of the advisory panel
[80] As an overarching point, Ms Clark submitted that a substantial measure of deference should be given to the views of the members of the advisory panel and the deputy prison director, when considering any challenges to the content of their deliberations. Ms Levy disputed that any such deference was due to the decision- makers. She submitted that the content of their deliberations was not on matters sufficiently esoteric for the Court to treat itself as any less well-equipped to form a view.
[81] As I have analysed the issues, it is unnecessary to form a view on whether deference should be afforded to the advisory panel, and if so to what extent. Had it become relevant, it would have required a topic by topic assessment, given, at the least, the familiarity that advisory panel members have with dealing with the relevant topics in respect of numerous applicants for RtW.
Outcome
[82]For the reasons already given, the application for judicial review is declined.
Concluding comment
[83] Ms Levy’s challenges extended to the adequacy of the process for considering applications for RtW. Any relief would be declaratory as to additional steps reasonably required as a matter of general practice. Ms Clark submitted that the present proceeding was not an appropriate context in which to advance such arguments. Serco was responding only to the criticisms of the specifics involved in one application by Mr Burke, and could not be expected to respond in general terms for the Department as to the adequacy of the process provided for in the POM.
[84] I agree with Ms Clark’s submission. As I have already said, I do not consider there is any basis in this particular case to find the process was materially flawed. Further, to the extent that Ms Levy purported to expand the issues to advance systemic challenges, nor am I persuaded that any errors have been exposed. If that had been the case, it would nonetheless have been inappropriate to grant relief in the absence of
the Department, which must bear primary responsibility for the lawfulness of the processes involved.
[85] Arguably the Department would need to be a respondent to any such general challenge.
Dobson J
Solicitors:
Cooper Legal, Wellington for applicant Kensington Swan, Wellington for respondent
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