Chief Executive of the Department of Corrections v Tariana Jones
[2025] NZCA 457
•9 September 2025
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA538/2023
[2025] NZCA 457
BETWEEN CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS
AppellantAND
TARIANA JONES
Respondent
Hearing: 20 March 2025 (further information received 1 April 2025) Court:
French P, Ellis and Campbell JJ
Counsel:
D J Perkins and S R Hiha for Appellant
V E Casey KC and A L Hill for Respondent
Judgment:
9 September 2025 at 11.30 am
JUDGMENT OF THE COURT
AThe appeal by the Chief Executive in relation to the High Court’s interpretation of s 54(4) of the Corrections Act 2004 is allowed.
BThe Chief Executive must pay the respondent costs calculated on the basis of a standard appeal, band A, together with usual disbursements.
REASONS OF THE COURT
(Given by French P)
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v JONES [2025] NZCA 457 [9 September 2025]
Table of Contents
Para No
Introduction [1]
Background [3]
Sections 53–56 of the Act [16]
Section 53 [16]
Section 54 [17]
Section 55 [25]
Section 56 [27]
The High Court decision [28]
Arguments on appeal [31]
General approach to statutory interpretation [31]
The respondent’s submissions [33]
The Chief Executive’s submissions [34]
Our analysis [54]
Where then does this leave the disposition of the Chief Executive’s appeal? [75]
The High Court decision supported on other grounds [79]
Costs [81]
Result [83]
Introduction
[1] When the Chief Executive of the Department of Corrections decides to transfer prisoners from one prison to another for a systems-related reason, what considerations does s 54(4) of the Corrections Act 2004 (the Act) require them to take into account?
[2]That is the key issue for determination in this appeal.
Background
[3]The issue arises in the following context.
[4] In recent years, there has been a growing problem of staffing shortages at prisons. By June 2022, staff-prisoner ratios were becoming unsustainable across the network, particularly at two men’s prisons.1 In order to address the staffing pressures, Corrections decided to implement what was called a “network rebalancing exercise”. This involved the transfer of women prisoners from Arohata Prison in Wellington to either Christchurch Women’s Prison, or the Auckland Region Women’s Corrections Facility, thereby freeing up Arohata staff and enabling them to be redeployed.
1 Spring Hill Corrections Facility and Mt Eden Corrections Facility.
[5] The terms of the directive issued by the Chief Executive were that all sentenced women at Arohata (as distinct from those on remand) would be transferred to one of the other two women’s prisons in the country unless they were due to be released shortly. The directive did not specify how soon the release date needed to be in order to be exempted from transfer, but as we understand it the purpose of the exemption was to avoid needless relocation and airfares.
[6] The transfers commenced on 20 September 2022. They were implemented in three tranches. By the end of 2022, all of the 51 sentenced women who had been in Arohata as at September 2022 had been either transferred or released.
[7] A group of the transferred prisoners issued judicial review proceedings in the High Court challenging the lawfulness of what the statement of claim described as “the mass transfer”.
[8] The challenge was upheld by Cooke J.2 The Judge found that the transfers involved unjustified discrimination in breach of s 19(1) of the New Zealand Bill of Rights Act 1990 in three respects.3 The Judge also found that the decision makers failed to take into account several mandatory relevant considerations.4 Significantly for present purposes, this included failing to take into account the individual circumstances of each prisoner before directing their transfer, contrary to s 54(4) of the Act.5 The Judge ordered the Chief Executive to reconsider the transfer decisions in light of his findings.6
[9] The reconsideration ordered by the High Court duly took place and in itself did not result in any further litigation.
[10] In bringing an appeal against Cooke J’s decision, the Chief Executive does not challenge the relief ordered by the High Court. Nor does he seek to disturb the Judge’s factual findings.
2 Wallace v Department of Corrections [2023] NZHC 2248 [judgment under appeal].
3 Section 19(1) states that everyone has the right to be free from discrimination on the grounds of discrimination in the Human Rights Act 1993.
4 Judgment under appeal, above n 2, at [62].
5 At [42]–[47].
6 Wallace v Department of Corrections [2023] NZHC 592 [relief judgment].
[11] What the Chief Executive does take issue with is the Judge’s interpretation of the obligations imposed on him by s 54(4) of the Act.
[12] The appeal, although limited in scope, is clearly moot. The outcome will have no practical effect on the women who were subject to the transfers. In such circumstances, the Court would usually decline to hear the appeal.7 However, the Court may entertain a moot appeal in exceptional situations where there is an important public interest at play.8 We consider that to be the case here. There will inevitably be future decisions involving transfers of prisoner cohorts. The need for clarity in relation to such decisions is of important public interest.
[13] One consequence of the appeal having no practical effect on the original applicants is that only one prisoner from that group is named as a respondent in the appeal. As counsel Ms Casey KC explained, the group’s legal representatives took the view it was not appropriate for all the women to incur legal aid debt solely for the purposes of being a contradictor to the Crown. The arrangement with the one respondent who is not legally aided is that counsel will be paid if and when the Court orders costs.
[14] Finally in this background section, we note there is a certain irony in the position taken by the Chief Executive in this appeal. That is because in the High Court, Corrections denied the transfer was a blanket removal and adduced evidence that personal circumstances had been taken into account.9 That evidence was rejected and the Judge commented that the evidence on this point may have been a breach of the duty of candour.10
[15] We turn now to examine the main statutory provisions at issue, namely ss 53–56, which the Act groups together under the italicised heading “[t]ransfer of prisoners”.
7 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [16]. This policy of restraint “reflects the adversarial nature of the appellate process, the need for economy in the use of the limited resources of appellate courts and that advisory opinions are generally not within the Court’s proper role”: Thornley v Ford [2024] NZCA 154, [2024] 2 NZLR 708 at [45].
8 See Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [33].
9 Judgment under appeal, above n 2, at [28].
10 Relief judgment, above n 6, at [24].
Sections 53–56 of the Act
Section 53
[16] The starting point is the source of the Chief Executive’s power to transfer a prisoner from one prison to another. That power is conferred by s 53 which states:11
53 Transfer from one prison to another
(1)A prisoner may be transferred, on the direction of the chief executive, from any prison to any other prison in which he or she may be lawfully detained.
…
Section 54
[17] Section 54, which is at the heart of this dispute, addresses the permissible reasons for a transfer. It provides:
54 Reasons for transfer
(1)A prisoner may be transferred by the chief executive from one prison to another for 1 or more of the following reasons:
(a)to assist in reducing the likelihood of reoffending by the prisoner:
(b)to assist in facilitating the—
(i)rehabilitation of the prisoner; or
(ii)reintegration of the prisoner into the community on his or her release:
(c)to place that prisoner in a prison closer to his or her family:
(d)to respond to the needs of that prisoner, as identified in the management plan:
(e)to ensure the safety of that prisoner or any other person:
(f)to implement a change in the security classification of that prisoner:
(g)to provide medical or psychiatric care for that prisoner:
11 Section 53(2) of the Corrections Act 2004 also authorises transfers at the direction of an inspector of corrections on safety grounds. Under s 53(3) such a direction may, however, be revoked at any time by the Chief Executive.
(h)to reduce the risk of self-harm by that prisoner if he or she is identified as being at risk:
(i)to reduce the risk to that prisoner if he or she is identified as being vulnerable to mistreatment by other prisoners:
(j)to grant a request by a prisoner for a transfer.
(2)A prisoner may be transferred by the chief executive from one prison to another in order to ensure compliance with the requirements of this Act or any regulations made under this Act concerning—
(a)the separation of convicted prisoners from accused prisoners; or
(b)the separation of prisoners who are under a specified age from prisoners who are of or over that age.
(3)A prisoner may be transferred by the chief executive from one prison (the first prison) to another prison—
(a)to restore or maintain the security and order of the first prison:
(b)to enable effective management of the national prisoner muster:
(c)to allow repairs or alterations at the first prison:
(d)in response to the closure or change of use of the first prison or part of that prison.
(4)When considering whether to transfer a prisoner for 1 or more of the reasons set out in subsection (1) or when considering how a transfer for 1 or more of the reasons set out in subsection (2) or subsection (3) is to be effected, the chief executive must, as far as is reasonably practicable, have regard to—
(a)the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and
(b)the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and
(c)the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.
(5)A decision by the chief executive to transfer a prisoner must be made in the prescribed manner.
[18] As will be apparent, the effect of s 54 is that the Chief Executive’s power to transfer a prisoner is only available if the transfer is for a reason specified in either subss (1), (2) or (3).
[19] The permitted reasons can be analysed as falling into three distinct categories. The subs (1) reasons are all reasons relating to the individual personal circumstances of a particular prisoner. The subs (2) reasons are reasons relating to compliance with legal requirements, while the subs (3) reasons can be characterised as systems-related reasons. For that reason, we refer to transfers made for subs (3) reasons as “systems-related transfers”.
[20] It is common ground that the transfers at issue in this case were systems-related transfers. They were for the reason of enabling effective management of the national prison muster, which is a permitted reason under s 54(3)(b).
[21] It is also common ground that the transfers were transfers subject to the procedural obligations contained in s 54(4). What is disputed is the content of those obligations when transfers are being effected for systems reasons.
[22]For convenience we set out the text of s 54(4) again:
(4)When considering whether to transfer a prisoner for 1 or more of the reasons set out in subsection (1) or when considering how a transfer for 1 or more of the reasons set out in subsection (2) or subsection (3) is to be effected, the chief executive must, as far as is reasonably practicable, have regard to—
(a)the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and
(b)the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and
(c)the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.
[23] Section 54(4) sets out three considerations which, as far as is reasonably practicable, the Chief Executive must take into account “[w]hen considering whether to transfer a prisoner” for a personal reason, or “[w]hen considering how a transfer … is to be effected” for a systems or compliance reason.12 All three mandatory considerations concern matters relating to the personal circumstances of the individual prisoner—the prisoner’s security classification, their rehabilitation and reintegration needs, and their proximity to their family.
[24] We have italicised the words “whether” and “how” because they are central to the dispute. To a significant extent, this appeal turns on those opening words in the subsection.
Section 55
[25] Section 55 regulates the information that must be given to prisoners effected by an impending transfer. Subsection (1)(a) states that a prisoner must be informed of an impending transfer, as well as the destination, at least seven days in advance. A further requirement is that they must be given a reasonable opportunity to inform their family of the impending transfer, and the destination, before the transfer is made.13
[26] By virtue of s 55(2), these requirements do not apply in five circumstances.14 One of the five exempted circumstances includes a transfer being made for the effective management of the national prison muster.15 Where that is the reason for the transfer, the prisoner must still however be informed of the transfer before departure.16
Section 56
[27] Section 56 requires that on the request of a transferred prisoner, the manager of the prison from which the prisoner was transferred must provide the prisoner with a written statement of the reasons for the transfer.
12 Emphasis added.
13 Section 55(1)(b).
14 The other exempted circumstances are where the prisoner is expected to create a management difficulty over the transfer, the transfer is being made for safety reasons, or to restore security and order or to implement a judicial order. See s 55(2)(a)–(c) and (e).
15 Section 55(2)(d).
16 Section 55(5).
The High Court decision
[28] In the High Court the Judge held that, notwithstanding this was a systems-related transfer, the Chief Executive was still required by s 54(4) to consider whether to transfer any particular prisoner as part of the national prisoner muster and therefore to take into account personal circumstances at that initial stage of the decision making.17 It was, the Judge found, reasonably practicable for the Chief Executive to have done so.18 The Chief Executive had accordingly erred in limiting his consideration of personal considerations to deciding where each should be transferred (Christchurch or Auckland) and when (which tranche), rather than whether they should be transferred at all.19
[29] The Judge drew support for this interpretation of s 54(4) from other provisions in the Act regarding the purpose of the corrections system,20 the general principles guiding it,21 international instruments,22 and Corrections’ own Prison Operations Manual (the Manual).
[30] As mentioned, the Chief Executive does not appeal any of the Judge’s findings of fact. That includes the finding that individual personal circumstances were not taken into account when deciding whether to transfer the prisoners as well as the finding that it would have been reasonably practicable for the Chief Executive to have done so.23 The argument is whether s 54(4) required him to do so.
17 Judgment under appeal, above n 2, at [45].
18 At [54].
19 At [43].
20 Corrections Act, s 5(1)(c).
21 Section 6(1)(h) and (i).
22 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) GA Res 65/229 (2010); The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175 (2015); and United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
23 Judgment under appeal, above n 2, at [28] and [43].
Arguments on appeal
General approach to statutory interpretation
[31] Section 10(1) of the Legislation Act 2019 provides that the meaning of an enactment must be ascertained from its text and in light of its purpose and context. In discussing the equivalent provision under s 5 of the Interpretation Act 1999, the Supreme Court in Commerce Commission v Fonterra Co-operative Group Ltd said as follows:24
Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
[32] In advancing their competing interpretations of s 54(4), each party claimed their interpretation was the inevitable result of applying that approach.
The respondent’s submissions
[33] Ms Casey supported the Judge’s interpretation of s 54(4) which she submitted was consistent with the text and context. She characterised the Chief Executive’s appeal as an attempt to obtain a ruling that permits him to move prisoners without any regard to the impact on them if the reason for the move is a systems-related issue such as muster management. She contended that the Chief Executive’s interpretation was not required by the wording. Nor was it required for any practical or purposive reason given the section is already calibrated to take into account reasonable practicability. She further submitted that the Chief Executive’s interpretation was out of step with the purposes of the Act, and contrary to international instruments.
The Chief Executive’s submissions
[34] Counsel for the Chief Executive, Mr Perkins, prefaced his submissions by emphasising the limited scope of the issue for determination.
24 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22] (footnote omitted). See also Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65 at [23].
[35] This preliminary submission was born of concern that the High Court decision had, in his submission, elided the three mandatory factors under s 54(4) with additional considerations outside the scope of the subsection such as a prisoner’s health and medical needs.25 In effect, according to Mr Perkins, the Judge imposed an obligation on the Chief Executive to consider individualised circumstances generally when making a transfer decision. Mr Perkins accepted other circumstances might be relevant and that taking them into account might be best practice. However, they should have been treated as permissive relevant factors, rather than being elevated to mandatory factors which if not considered would render a transfer decision unlawful. The Judge’s analysis on this aspect of the proceeding should, Mr Perkins argued, have been firmly anchored in s 54(4) and the three mandatory considerations.
[36] We pause here to interpolate that whether or not there is any merit in this submission, it is not for us to determine. The notice of appeal,26 and the arguments we heard, were, to use Mr Perkins’ phrase, firmly “anchored in the mandatory relevant considerations” in s 54(4).
[37] Turning to s 54(4) itself, the central contention for the Chief Executive was that s 54(4) does not mandate individual consideration of the three enumerated factors before deciding whether any particular prisoner should be transferred for a s 54(2) or
(3) reason. In the case of those two categories of transfers, the three factors are only mandatory relevant considerations when it comes to determining how a transfer already decided upon is to be implemented.
[38] Mr Perkins submitted that the Chief Executive’s interpretation was supported by the text of s 54, its purpose and its context.
[39] In terms of the purpose, Mr Perkins submitted that ss 53–56 recognise: that transfers will be necessary to effectively operate a corrections system of any size; that transfers may be necessary or desirable in the best interests of the individual prisoner or Corrections or both; that transfers inevitably cause disruption to prisoners and their
25 The requirement to consider “health and medical needs” was contained in the Manual.
26 The notice of appeal identifies the error relied upon as being wrongly requiring the decision-maker to take into account the considerations in s 54(4) when deciding whether to transfer a prisoner under s 54(3)(b) and, by implication, for any reason under s 54(2) or (3).
families; and that to mitigate this, a range of procedural safeguards have been put in place.
[40] As regards the text of s 54(4), Mr Perkins contended that the Court should assume the drafter of s 54(4) had used words carefully and meant every word to have significance. In his submission, the structure of the subsection, with its distinct grouping of two different types of transfers, and its deliberate use of different words “whether” and “how” in respect of each group, together with the interposing of an “or” between the alternatives, all evidenced a clear legislative intention that different types of transfers are to be conditioned by different types of procedural obligations.
[41] Mr Perkins further pointed out that as a matter of language the word “whether” poses a binary question which can only be answered “yes” or “no”, unlike the word “how”. The word “how”, in its ordinary and natural meaning, denotes “by what means”.27 The clear implication from the use of the word “how”, as part of a phrase concerning “how a transfer … is to be effected”, is that the decision to transfer has already been made and it is now a question of implementation.
[42] On this analysis, the only “whether” question in relation to group transfers under subss (2) or (3) is whether the movement of a particular prisoner is for the permitted reason. Personal factors relating to a particular person in the group are just permissive, and matters of good practice. In contrast, considerations relating to which prison and when, and any other “how” considerations, are the legally mandatory relevant considerations.
[43] That the different types of transfers were intended to have different types of procedural obligations was also said to make sense having regard to the inherent nature of the types of transfers.
[44] Transfers for subs (1) reasons were concerned with individual transfers, and thus individual circumstances logically bore on whether or not to transfer. In contrast,
27 See Graeme Kennedy and Tony Deverson (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 528. See also Lesley Brown (ed) Shorter Oxford English Dictionary (5th ed, Oxford University Press, Oxford, 2002) vol 1 at 1279; and Collins English Dictionary (14th ed, HarperCollins Publishers, Glasgow, 2023) at 951.
transfers in subss (2) and (3) categories were about transfers required by law, or transfers of cohorts or groups of prisoners due to structural features of the Corrections system. It made sense, Mr Perkins argued, that in these latter categories the decision making was at a systems-level view where the needs of the system dominate and take precedence over individual needs. He further submitted that systemic transfers are often driven by constraints in the system, involve coordinated or cascading movements of multiple prisoners and may often need to be effected quickly. Requiring a process whereby each of the large cohort must be considered for transfer, when the decision that has been made is to move them all, could not have been intended.
[45] Mr Perkins contrasted the interpretation he advocated with the High Court’s interpretation of s 54(4) which in his submission did violence to the language. It required treating “how” as including “whether”. That, he argued, strained the meaning of “whether” and also begged the question of why the legislature would have bothered to use different words in the first place. He noted further that the High Court decision had not offered any explanation for the way s 54(4) was structured. If the legislative intention was as found by the Judge, there would have been much simpler and clearer ways of expressing it.
[46] Mr Perkins also took issue with the weight placed by the Judge on other provisions in the Act, notably ss 5(1)(c), 6(1)(h) and 6(1)(i).28
[47] Section 5 is headed “[p]urpose of corrections system”. Subsection (1) commences by stating that the purpose of the corrections system is to “improve public safety and contribute to the maintenance of a just society” and then goes on to list, in subss (1)(a)–(d), four ways by which that is achieved. Subsection (1)(c), relied upon by the Judge, references “assisting in the rehabilitation of offenders”.
[48] Section 6(1) details ten principles that guide the operation of the corrections system and which, if applicable, must be taken into account by persons who exercise powers and duties under the Act so far as is practicable.29 The two principles invoked by the Judge were the principle that offenders be given access to activities that may
28 Judgment under appeal, above n 2, at [45].
29 Corrections Act, s 6(2).
contribute to their rehabilitation and reintegration,30 and the principle that contact between prisoners and their families be encouraged and supported.31
[49] In Mr Perkins’ submission, the Judge’s reliance on these provisions was misplaced due to their level of generality. He submits it cannot be right that generally expressed purposes and principles can displace the specific text, purpose and context of s 54(4) and affect the content of the procedural obligations by widening the mandatory relevant considerations attaching to systems-related transfers. This was particularly so given that other of the general purposes and principles not mentioned by the Judge point in a different direction. For example, another of the specified ways of achieving the overarching purpose is to ensure that sentences imposed by the courts are administered in a safe, secure, humane and effective manner.
[50] The correct approach, Mr Perkins contended, is to view s 54(4) as the worked through analysis of how those purposes and principles are to be applied to transfers. The text, purpose and context of s 54(4) is where the balance between the generally expressed competing purposes and principles are struck.
[51] As regards the international instruments relied on by the Judge, Mr Perkins pointed out that two of these—the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)—are aspirational only and focus on substantive placement outcomes. They do not speak to the content of procedural obligations before prisoners may be transferred. Mr Perkins accepted, however, that the third international instrument cited by the Judge, the United Nations Convention of the Rights of Children, was relevant in that Parliament is expected to legislate consistently with New Zealand’s international obligations unless the contrary is clearly shown, or unless the language used does not allow that outcome.32 However, he contended that s 54(4) seeks to give effect to international obligations.
30 Section 6(1)(h).
31 Section 6(1)(i).
32 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [143] per McGrath J. See also New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289.
[52] Another reason the Judge considered that individual consideration was required as a matter of law was the requirements of the Manual.33 The Manual contains guidelines that are promulgated by the Chief Executive pursuant to his statutory power to issue guidelines on the exercise of powers under the Act.34 As quoted in the High Court judgment, the Manual states:35
M.04.03.04 Considerations when making transfer decisions and notification requirements
1. Prior to any transfer decision being made it is important that the prison director or delegate has considered the individual circumstances of the prisoner to satisfy themselves that the transfer is necessary and will not interrupt the prisoners progress in achieving their rehabilitative or reintegrative needs. These considerations need to include:
…
[53] Mr Perkins, however, contended that regardless of the wording of the Manual, it could not override the legislative intent evident in s 54(4). In his submission, the Manual may reflect best practice, but that did not render it mandatory for the purposes of judicial review.
Our analysis
[54] As will be apparent, the submissions made by Mr Perkins have force. Indeed, on an initial reading of s 54(4), the Chief Executive’s interpretation is likely to strike many readers as unarguable. If the respondent’s interpretation were correct, why, the reader might ask, would Parliament have just not used the word “whether” in relation to both types of transfers?
[55] But that is to overlook other counterbalancing factors such as why would Parliament intend to confer a wholesale exemption in all systems-related transfers from the obligation to consider the impact on the individual, even where it was reasonably practicable to do so? After all, the importance of the three mandatory factors in prison management, including in particular the management of prison transfers, is universally recognised both internationally and in the Act itself, as
33 Judgment under appeal, above n 2, at [56]–[62].
34 This power to issue guidelines is conferred by s 196(1) of the Corrections Act.
35 Judgment under appeal, above n 2, at [57].
identified by the Judge.36 The effect of the Chief Executive’s interpretation would be that in the case of every transfer of a cohort of prisoners, he is entitled to select the prisoners to make up the cohort at random and move them without being lawfully required under s 54(4) to consider whether, for example, a particular prisoner has a child in the area or is in the middle of a rehabilitation programme. Under the Chief Executive’s interpretation, those matters would only bear on a decision about “when”. They would not even always bear on “where” as there may not be two alternatives, but only one facility, to which the cohort can be transferred.
[56] For reasons we now explain, we have concluded that Parliament did not intend that outcome. In our view, the correct answer to the agreed question posed by the appeal, namely:
Are the factors enumerated in s 54(4) of the Corrections Act 2004, so far as is reasonably practicable, mandatory relevant considerations when considering whether to transfer a prisoner for a s 54(2) or (3) reason?
is neither a blanket “no” as advocated by the Chief Executive, nor a blanket “yes” as suggested by the High Court. Our answer is that they will be if the transfer in question involves a selection process.
[57] We begin our analysis with the point that all three mandatory factors are placement related and that under s 54(4) the same three factors apply to all categories of transfers. We acknowledge too that, viewed in isolation, the phrases “whether to transfer a prisoner” and “how a transfer … is to be effected” have different meanings.
[58] We also consider, as submitted by Mr Perkins, that the structure of the subsection and the use of different wording must be intended to reflect differences in the inherent nature of the different types of transfers, differences which Parliament consider justify different treatment.37 In our view, the most likely explanation for the differentiation is that unlike individual-specific transfers, systems-related transfers are
36 At [47] and [48].
37 Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 424. See also Minister for Canterbury Earthquake Recovery v Ace Developments Ltd [2015] NZHC 1027, [2015] NZAR 964 at [82].
primarily driven by the needs of the system and, as a result, the decision making is taken at a systems-level view, with individual interests being subordinated.
[59]It therefore follows that in order to give meaning to the phrase “how a transfer
… is to be effected”, it is in our view best interpreted as directed at the implementation of a transfer decision already made.38 Thus, and this is where we part company with Ms Casey, we consider that s 54 does not purport to regulate the systems-related transfer decision itself, apart from requiring that it must be for an authorised reason. Nor in the case of a systems-related transfer of a cohort or group of prisoners for a permitted reason does s 54 purport to regulate the Chief Executive’s definition of the class or cohort to be moved. Such decisions and definitions may of course be the subject of judicial review on other grounds but not for non-compliance with s 54(4).
[60] However, in our view, none of those matters lead inexorably to the absolutist position advocated by the Chief Executive.
[61] As noted by Ms Casey, the use of “whether” in the case of a proposed prisoner transfer under s 54(1) makes sense because the three mandatory factors can only logically bear on one question, and that is “whether” to transfer the prisoner. However, when it comes to applying the three mandatory factors to the situation of a cohort transfer, there are more decisions to be made—decisions that are not limited to “whether”, but which in certain circumstances may logically include “whether”.
[62] The point is best illustrated by considering the example of a muster management decision to reduce the prison population in a particular prison by transferring a specified number of prisoners elsewhere.
[63] In our view, the question of which individual prisoners are to be selected to make up the specified number naturally falls within the meaning of “how a transfer … is to be effected”. In that context, “how” must as a matter of logic and language include “whether”. There is, in our view, no principled justification for holding
38 In Clarke v Department of Corrections [2023] NZHC 1651 at [36], the Court considered that, because the decision to transfer the prisoner fell within s 54(3)(b) of the Corrections Act, the s 54(4) considerations fell to be assessed in the context of “how”, and not “whether”, the prisoner was to be transferred.
otherwise. To put it another way, Parliament clearly intended implementation of subss (2) and (3) transfers to be regulated by the three mandatory factors and if a selection is required in order to implement the transfer, then it follows the selection of any particular prisoner—whether to transfer that person or not—will require consideration of the three factors.
[64] Such an interpretation still gives meaning to the distinction expressly drawn by s 54(4) between the different categories of transfers and indeed in our view provides a compelling explanation for it consistent with the Act’s general policies and purposes. It also does no more violence to the language of the section than the Chief Executive’s interpretation whereby “how” is said to embrace “when” and “where”.
[65] Nor does the interpretation we favour impose an unworkable obligation on the Chief Executive, given the flexibility afforded him by the “as far as is reasonably practicable” qualifier in subs (4). The existence of that qualifier means that if, for example, the numbers or time pressures involved in a selection make it reasonably impractical to consider the personal circumstances of each individual prisoner eligible for selection, then the Chief Executive will not be required to undertake that exercise. A further related point is that if the reasonably practicable qualifier is not there to give flexibility when it comes to systems-related transfers, especially those involving large numbers, then it would seem to have little work to do.
[66]Mr Perkins sought to resist this analysis on four grounds.
[67] First, he argued that neither s 53 nor s 54 recognises decisions to bulk transfer prisoners. Both sections refer to transfers of “a” prisoner. Thus, in his submission, even a network balancing exercise involving a large number of prisoners and interdependent transfers is properly characterised as multiple (albeit coordinated) exercises of the s 53(1) power in relation to particular prisoners. Therefore, so we understand the argument, the transfer decision to be implemented is that of an individual, and no question of a selection arises.
[68] It is however a well-established principle of statutory interpretation enshrined in s 19 of the Legislation Act that words in the singular shall include the plural. In our
view, the section clearly contemplates the transfer of groups of prisoners. There is in our view no logical reason to consider the transfer of a cohort in any other way than the reality of what it is, namely the transfer of a group of prisoners for the one reason.
[69] It is of course also possible that a transfer for a subss (2) or (3) reason might be of a single prisoner and not a group. That was the basis for a second argument raised by Mr Perkins, namely that the s 54(4) obligation must work in the same way for all transfers for subss (2) or (3) reasons regardless of whether what is being effected is a single exercise or multiple coordinated exercises.
[70] We agree the obligation must work in the same way. And, under the interpretation we favour, it does. It is still an obligation centred on how to implement a transfer decision and so faithful to the wording.
[71] Thirdly, in responding to the point that the Chief Executive’s interpretation leaves little work for the “as far as is reasonably practicable” qualifier, Mr Perkins argued that correctly analysed, the “reasonably practicable” qualifier goes to the inherent need to balance the three mandatory factors. They may, he argued, not all point in the same direction. For example, there may be more suitable rehabilitation programmes at an Auckland facility, but the prisoner has family based in Christchurch. He also submitted that the “as far as is reasonably practicable” will operate to mitigate time frames.
[72] That strikes us as a rather strained limit on the scope of the qualifier and its utility. Indeed, it renders it surplusage. Even without it, the Chief Executive would not be required as a matter of law to give equal weight to the mandatory considerations so long as he takes them into account.39
39 Section 54 requires the Chief Executive to “have regard to” the subs (4) considerations. This Court has held that the words “have regard to” mean the considerations must genuinely be taken into account, but that once they are, it is for the decision-maker to conclude that they are, or are not, of sufficient weight, alone or together, to outweigh contrary considerations which must also be taken into account. See New Zealand Co-operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 (CA) at 612. The weight a decision-maker gives to a mandatory relevant consideration is for them: Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [50].
[73] Fourthly, Mr Perkins sought to rely on the predecessor to s 54(4) which was reg 36 of the Penal Institution Regulations 2000. However, we are not persuaded that any significance can attach to this regulation. While it contains the same distinction between transfers for individual reasons and transfers for systemic reasons, it does not shed any light on the extent to which s 54 mandates individual consideration of the enumerated factors before deciding whether any particular prisoner should be transferred for a systems-related reason. We add that our review of the legislative history of the Act itself did not yield any information bearing on the meaning of s 54(4).
[74] To recap. Our conclusion is that, insofar as the High Court held that in deciding whether or not to transfer a prisoner for a s 54(2) or (3) reason a decision maker must always take into account the considerations in s 54(4) unless it is not reasonably practicable to do so, that was an error. Correctly interpreted, s 54(4) only requires such a decision maker to take those considerations into account if the implementation of the transfer in question involves a selection process as between prisoners.
Where then does this leave the disposition of the Chief Executive’s appeal?
[75] The notice of appeal specifies two grounds of appeal. The first relates to the High Court’s interpretation of s 54 and the second is that “[t]o the extent the High Court erred” in its interpretation, it further erred in finding the decision making in issue did not comply with the requirements of s 54.
[76] The notice of appeal goes on to say that the judgment sought from this Court is a judgment allowing the appeal and reversing, or modifying, the High Court’s decision insofar as it relates to the appeal grounds.
[77] For the reasons already discussed, we consider that the first ground of appeal is made out. As regards the second, the case on appeal is not a complete record of all material before the Judge and accordingly we consider we do not have sufficient material before us to reach any definitive view.
[78] The disposition of the appeal is therefore that it is allowed but only in relation to the High Court’s interpretation of s 54(4) of the Act.
Is the High Court decision supported on other grounds?
[79] In the event we disagreed with the High Court’s interpretation of s 54(4), Ms Casey sought to support the High Court decision on other grounds, namely the ground of unreasonableness arising from the Chief Executive’s failure to honour a representation made in advance of the transfers. The Judge found the Chief Executive had represented that individual circumstances would be taken into account but, despite this representation, had not done so.
[80] We are however not persuaded that this failure would of itself rise to the level of irrationality required to render the decision unlawful for judicial review purposes.
Costs
[81] The Chief Executive did not seek costs and in any event given that we have adopted an interpretation of s 54(4) which differs from the one he advocated, we would not have awarded them anyway.
[82] In a situation where neither party has had a total victory, costs often lie where they fall. However, this is an unusual case where the dispute was moot and the appellant has now received the benefit of an interpretation for future use. The respondent could have chosen not to engage and thereby necessitated the appointment of a contradictor in the public interest but chose to remain and, importantly, through counsel made submissions which we have found particularly helpful. Having regard to those circumstances, we consider that the interests of justice favour an award of costs to the respondent. We therefore so order.
Result
[83] The appeal by the Chief Executive in relation to the High Court’s interpretation of s 54(4) of the Corrections Act 2004 is allowed.
[84] The Chief Executive must pay the respondent costs calculated on the basis of a standard appeal, band A, together with usual disbursements.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Appellant Amanda Hill Law, Lower Hutt for Respondent
0
8
0