Move over Probation Incorporated v Chief Executive of the Department of Corrections HC Christchurch CIV-2010-409-1197
[2011] NZHC 331
•21 April 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2010-409-1197
UNDER Part 1 of the Judicature Amendment Act
1972
IN THE MATTER OF An application for judicial review of a decision under the Corrections Act 2004
BETWEEN MOVE OVER PROBATION INCORPORATED
Applicant
ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS First Respondent
Hearing: 13 April 2011
(Heard at Wellington)
Counsel: MAJ Elliott and R A Boulton for Applicant
B H Arthur and R F Niven for First Respondent
Judgment: 21 April 2011 at 9:30 AM
I direct the Registrar to endorse this judgment with a delivery time of 9.30am on the
21st day of April 2011.
RESERVED JUDGMENT OF MACKENZIE J
[1] The Department of Corrections (“Corrections”) proposes to establish a community probation and psychological services service centre at Ensors Road in Christchurch. Move Over Probation Incorporated (MOP) is an incorporated society with some 500 members living in neighbourhoods proximate to the site of the proposed service centre, established for the purpose of opposing Corrections‟
proposal. It seeks judicial review of the decision to establish the service centre.
MOVE OVER PROBATION INCORPORATED V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC CHCH CIV-2010-409-1197 21 April 2011
[2] From about 2005 Corrections area management in Christchurch undertook an accommodation planning project to forecast future delivery of services. In December 2006 the senior management group approved the establishment of two new service centres in the south east and south west of Christchurch. In 2007 a number of possible sites in the south east were identified, including the Ensors Road site, which was then owned by Land Information New Zealand. In September 2008
Corrections entered into a conditional agreement for the purchase of the site. It applied to the Christchurch City Council for resource consent and this was granted in March 2009, on a non-notified basis. The purchase was completed and the land was gazetted as a community work centre under s 30 of the Corrections Act 2004 (the Act) in August 2009. The building of the centre is now well advanced and it is scheduled to open in early May 2011.
[3] The essence of MOP‟s contention is that Corrections has failed to meet a statutory or common law obligation to consult with the local community before making the decision to locate the centre at Ensors Road. It contends that, in reaching that decision, the Chief Executive of Corrections was required by s 8(1)(k) of the Act to consult with the local community. Alternatively, it said that an obligation to consult arises from a requirement that Corrections observe the principles of natural justice. The issues were defined by the parties in a pre-trial memorandum as follows:
a.Was a statutory decision under s 8 of the Corrections Act 2004 made in relation to this proceeding?
b.If such a decision was made, were the opportunities for the community to express its view sufficient to meet the requirements of s 8 of the Corrections Act 2004?
c. If such a decision was not made, was it required?
d.If such a decision was not required, did the actions or non-actions of the Chief Executive breach natural justice? In particular:
i. Did natural justice require consultation outside the Resource
Management Act 1991?
ii. (If required) Was the consultation inadequate?
e. Were irrelevant matters taken into account?
f. Were relevant matters not taken into account?
g. Were errors of fact made relating to:
i. Incidents of crime;
ii. Distance from schools; and iii. Any other issues?
[4] Before turning to those issues, it is desirable to set out briefly the sequence of events relevant to consultation. Much of the evidence on this issue comes from material obtained by MOP under the Official Information Act 1982 from Corrections.
[5] It appears from the material that in November 2008 the communications unit of the Office of the Chief Executive of Corrections prepared a draft communications plan concerning the two new service centres in Christchurch. That draft plan included a proposed press release and information pack. That draft plan was apparently not implemented, in that no public notification of Corrections‟ intentions was given at that stage. The minutes of a meeting between Corrections staff and the design team representatives on 12 December 2008 (obtained under the Official Information Act by MOP) indicate that the extent of discussion with neighbours which should be undertaken was discussed. The record of the discussion on this point suggests that the intention was to have “informal” discussions with the neighbouring property owners regarding Corrections‟ intentions for the site prior to the resource consent application being lodged, that the consultation process would be “very low key”. The proposals required a resource consent from the Christchurch City Council. The minutes noted that the consultation with neighbours might, on the one hand, prompt objections which might influence the City Council to require notification of the application or, on the other hand, might, if no objections were received, increase the likelihood that the resource consent would be processed as non-notified.
[6] Mr Scott, the area manager in Christchurch for community probation services, visited neighbours directly surrounding the site in early December 2008. He informed the neighbours of the intention to relocate the service centre and to apply for resource consent. The neighbours included some businesses and organisations. Mr Scott also visited seven neighbouring houses, one of which was
unoccupied. He spoke to the occupants of three houses, and left information packs at the other three houses. Corrections‟ staff also attended meetings of the Hagley/Ferrymead Community Board in August 2007 and November 2008. Those were not public meetings.
[7] The resource consent application was lodged in December 2008. A report was prepared by Christchurch City Council under ss 93 and 94 of the Resource Management Act 1991 to determine whether the application should be processed as publicly notified, limited notified, or non-notified. In considering whether the adverse effects of the activity on the environment would be minor, the report noted that the adverse effects of the proposal on the environment related to parking and health issues (the latter because the site was contaminated as a result of its earlier use for railway activities). The report concluded that the effects would be minor, and recommended that the application be processed on a non-notified basis. That recommendation was adopted. The resource consent was granted on 13 March 2009.
[8] Mr Lavery, the chairperson of MOP, states that word of the probation centre started to circulate in about September 2009, after the resource consent had been granted and a building consent had been obtained. Some people tried to get information about the decision to locate the centre at Ensors Road and to canvas the local community for views about the proposed centre. A public meeting was arranged on 21 September 2009. The meeting was attended by over 320 local residents, representatives from Corrections, Community Board members and a Christchurch City Council representative.
[9] MOP subsequently mounted a challenge to the granting of the resource consent, which led to a request by MOP for review of the consent on the grounds that the application for consent contained inaccuracies which materially influenced the grant of the consent. That request for review was declined, for the reasons given at some length by the hearing Commissioner on 10 May 2010. In that decision, the Commissioner noted that the request for review did not involve a review of the decision under ss 93 and 94 of the Resource Management Act that the application did not need to be notified. The Commissioner noted that that would require application for judicial review to the High Court. No such application for judicial
review has apparently been brought. This proceeding was issued in June 2010. It seeks review of a decision by the Chief Executive of Corrections to locate the centre of Ensors Road. The statement of claim alleges that the decision was made at some time between 8 August 2007 and 22 December 2008. During the hearing, I granted leave to amend these dates to between 1 June 2007 and 30 August 2009.
[10] The essence of issues a. to d. set out at [3], is whether there has been a failure to fulfil an obligation to consult residents in the neighbourhood of the probation service centre, and to take the outcome of that consultation process into account in making the decision whether or not to site it at that particular location. It is first necessary to examine the source of the claimed obligation to consult. As the Court of Appeal said in Lab Tests Auckland Ltd v Auckland District Health Board:[1]
[313] First, DHBs have a variety of consultation obligations. Some may arise from statute, some from contract, some from legitimate expectations and some from “best practice”. But where it is claimed in judicial review proceedings that consultation obligations have been breached, it is necessary to be clear about the source of the relevant obligations.
[1] Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 9 NZLR 776.
[11] The first issue is whether the decision, or series of decisions, involved in deciding to site the service at Ensors Road was a statutory decision under s 8 of the Corrections Act 2004. MOP submits that it was. In particular, s 8(1)(k) is relied upon. Section 8(1) provides as follows:
Powers and functions of chief executive
(1) The chief executive has the following powers and functions:
(a) ensuring that the corrections system operates in accordance with the purposes set out in section 5 and the principles set out in section 6:
(b) ensuring the safe custody and welfare of prisoners (other than prisoners detained in police jails or in institutions that are not corrections prisons):
(c) ensuring the welfare of offenders serving a sentence of imprisonment on home detention, or subject to community- based sentences or sentences of home detention or conditions imposed under the Parole Act 2002 or Sentencing Act 2002, during periods while, in the presence of any employee of the department, those offenders carry out their
sentences or undergo any supervision forming part of the conditions to which they are subject:
(d) exercising the powers conferred by section 62 (which relates to the temporary release or removal of prisoners):
(e) visiting and inspecting any prison, community work centre, or probation office and, at his or her discretion, interviewing any person under control or supervision:
(f) inquiring into the treatment and conduct of persons under control or supervision:
(g) inquiring into all abuses or alleged abuses within each prison, community work centre, or probation office or in connection with it:
(h) inquiring into any complaint made to him or her by a person under control or supervision:
(i) exercising all or any of the powers and functions of a prison manager:
(j) issuing instructions or guidelines under section 196:
(k) ensuring that processes are established and maintained to—
(i) identify the communities significantly affected by policies and practices in the corrections system; and
(ii) provide opportunities for those identified communities to give their views on those policies and practices; and
(iii) ensure that those views are taken into account: (1) any other powers and functions conferred by or under this Act or regulations made under this Act.
[12] Mr Elliott submits that the source of the Chief Executive‟s power to make a decision to locate a probation centre at a particular place must be s 8 and that the Chief Executive does not have any power beyond what that section provides. He submits:
32. Section 8(1)(k) requires certain steps to be taken in relation to
„policies and practices‟ in the corrections system. One of the practices in the corrections system must surely be the establishment of new probation facilities and prisons so as to achieve the purposes of the act.
[13] Mr Elliott notes ss 5 and 6 of the Act as to the purposes of the corrections system in improving public safety and contributing to the maintenance of a just society and assisting in the rehabilitation of offenders and their reintegration into the
community. He also refers to the legislative history and to the parliamentary debates when this section was introduced, by supplementary order paper following the report back from the Law and Order committee. He submits:
45.As is often the case, the Parliamentary speeches do not provide a totally clear picture of Parliament‟s reasoning. However, the background to the enactment of s 8(1)(k) indicates:
a.That section was added to the bill as a supplementary provision.
b.There is no suggestion that it was intended to limit the existing obligation of a statutory decision maker to comply with the rules of natural justice. If anything, it enhanced the common law obligation.
c.The section reflects a desire for transparency and accountability in the corrections system.
d.Parliament believed that the relationship between offenders and the community was important in the rehabilitation of the offender. Community input was seen as important because it could increase the prospect of rehabilitation. This desire can be contrasted with the outrage which has been generated in the communities around Ensors Road as a result of the Chief Executive‟s failure to consult them about locating a corrections centre there.
[14] Ms Arthur takes issue with the proposition that s 8(1)(k) applies in these circumstances. She submits:
38.It is submitted that MOP has given this provision a very different meaning than that which is apparent from its plain words. MOP (at paragraph 10 of the Statement of Claim) has read this provision as obliging the Chief Executive to:
38.1Identify the communities who would be significantly affected by the potential decision.
38.2Provide opportunities for those identified communities to give their views about the potential decision.
38.3 Take those views into account before making the decision.
39.It is submitted that s 8(1)(k) is intended to apply to significant changes to Corrections‟ policies and practices at a national level; not individual, operational decisions. Issues such as restitution through community-based sentences may trigger the Chief Executive‟s process that provides opportunities for seeking of views; decisions such as the location of a particular community work centre would not.
[15] I consider that s 8(1)(k) does not apply to the present situation. I consider that the obligation to consult in respect of policies and practices in the corrections system does not extend to a requirement to consult on the location of individual facilities used by Corrections in the course of carrying out its functions. I consider that the obligation to identify the communities significantly affected by policies and practices in the Corrections‟ system and to provide opportunities for those identified communities to give their views on those policies and practices is intended to ensure that there is consultation over general policies, and general practices, at a policy level. Section 8 sets out the powers and functions of the Chief Executive. It does not purport to be a comprehensive statement of the powers of Corrections. It is not necessary that every action of Corrections be grounded in s 8. Corrections has the power to undertake actions which are necessary for the performance of its statutory functions. Contracts and other arrangements entered into in the performance of these functions will be subject to the lesser standard of judicial review referred to in
Mercury Energy Ltd v Electricity Corporation of NZ Ltd.[2] They do not necessarily
attract the obligations in s 8(1). I do not consider that the obligation in s 8(1)(k) extends to consultation over the application of policies and practices in the corrections system to individual cases. Nor does it extend to operational decisions as to how those policies and practices are carried out. A decision to establish a probation centre is clearly an operational decision, not a policy decision.
[2] Mercury Energy Ltd v Electricity Corporation of NZ Ltd [1994] 2 NZLR 385.
[16] I consider that that view of the scope of s 8(1)(k) is confirmed by the parliamentary debates to which I have been referred. The focus of the comments was on consultation in relation to the development of corrections policies and practices, the programmes and processes that go on in prisons and beyond, and on addressing rehabilitation. It was in respect of matters such as that that the degree of community consultation required by s 8(1)(k) was viewed as applicable. The comments referred to in the parliamentary debates do not suggest that community consultation was required at an operational level, in the application of policies and practices. Neither the words of s 8 themselves, nor the broader statutory context, suggest that s 8(1)(k) is intended to impose a general obligation to consult on
operational decisions.
[17] The absence of a specific statutory obligation to consult under s 8(1)(k) does not of itself exclude the existence of an obligation to consult. As noted in Lab Tests, an obligation may arise even in the absence of a specific statutory obligation. Counsel for MOP submits that the common law principle of natural justice would still apply, and refers in this regard to the classic statement of Cooke J in Daganayasi
v Minister of Immigration.[3]
[3] Daganayasi v Minister of Immigration [1980] 2 NZLR 130.
[18] Not every administrative decision requires that those affected be given a fair opportunity to be heard and have their views adequately considered before the decision is made. Ms Arthur submits that natural justice is usually applied where there is potential for adverse findings against a person or body and in such cases it is usually necessary to ensure that the person is made aware of the allegations, is given relevant material and an opportunity to respond to the allegations. At the other end of the administrative law spectrum are decisions in relation to contracts entered into in the performance of a statutory function, where the Privy Council said in Mercury
Energy:[4]
It does not seem likely that a decision by a state-owned enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith. …
[4] At 391.
[19] The implementation of Corrections‟ decision to site its probation services centre at Ensors Road required Corrections to comply with the Resource Management Act, and all other applicable requirements, just as those would apply to the actions of a private citizen in relation to the use of land. I find no indication in the scheme of the Corrections Act that additional consultation obligations are to be imposed on Corrections. The ultimate statutory step under the Corrections Act for the establishment of a probation centre is the issuing of a gazette notice under s 30 of the Act. There is no indication in the statute that, before a gazette notice may be issued, any specific consultation process must be carried out.
[20] The nature of Corrections facilities, and the characteristics of those who must use them, are such that there may well be concern from the public amongst whom
those facilities must be located. Counsel have referred to resource consent decisions which reflect that concern. In the performance of his statutory responsibilities, the Chief Executive may well consider it desirable to take steps to try to allay such public concerns. To that extent, “best practice” as referred to in Lab Tests may indicate that some element of public consultation may be desirable. However, whether such consultation is undertaken or not, and the extent of any such consultation, are matters for the Chief Executive. In the absence of a clear indication from the statutory scheme that some form of consultation is required, I do not consider that the principles of natural justice, or of administrative law more broadly, impose an overriding obligation to consult.
[21] Accordingly, in answer to the specific question posed as issue d., I hold that natural justice did not require consultation outside the Resource Management Act
1991. The questions posed as issues e., f. and g. are in essence all dependent upon the existence of an obligation to consult, and to take into account the views expressed in the course of such a consultation. My decision that no duty to consult arises makes it unnecessary to address those questions. Counsel for MOP has given a number of examples of issues that could have been raised if an opportunity to comment had been given. My decision that no opportunity to comment was required makes it unnecessary to consider those issues. They were, and are, matters for Corrections.
[22] For these reasons, the plaintiff‟s application for review is dismissed. Costs are reserved. The parties may submit memoranda if they are unable to agree.
Solicitors: Community Law Canterbury
Crown Law Office, Wellington for First Respondent
“A D MacKenzie J”
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