Obiaga v Attorney-General - [2024] NZSC 49

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 4/2024
[2024] NZSC 49

BETWEEN	DAVID IKENNA OBIAGA Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Glazebrook, Ellen France and Miller JJ
Counsel:	G H Allan, T Mijatov and S A Davies for Applicant A M Powell and R E R Gavey for Respondent
Judgment:	6 May 2024

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThere is no order as to costs.

____________________________________________________________________

REASONS

The applicant brought an application for judicial review, contending that reg 48(c)–(e) of the Corrections Regulations 2005 (Regulations) go beyond the empowering legislation, the Corrections Act 2004, because they allow Ara Poutama Aotearoa | Department of Corrections (Corrections) to fix security classifications by reference to considerations which are not strictly confined to the risk posed by the prisoner.[1] The relief sought in the statement of claim is a declaration that the relevant sub‑regulations are ultra vires and a declaration that relevant provisions of the Prisons Operation Manual and the associated forms and processes (together, the Review Policy) are unlawful.

Regulatory framework

[1]See Corrections Act 2004, ss 47(1) and 202(f).

Regulation 48 prescribes the matters that must be taken into account when a prisoner’s security classification is reviewed, in addition to the risk factors set out in reg 45. The matters listed in reg 48(c)–(e) are the prisoner’s co-operation with staff, misconduct, involvement in reported incidents, and motivation and achievement in relation to their management plan. The applicant concedes these matters may be relevant to risk in some circumstances, but he says that these sub-regulations are overbroad, as is the Review Policy that implements the Regulations.

Procedural history

The claim was dismissed by the High Court[2] and Court of Appeal.[3] The Court of Appeal relied on the presumption of validity of subordinate legislation and the breadth of the empowering provisions.[4] It found that the Regulations respond to policy directives in the legislation and noted that they allow for appeals and reviews.[5] It dismissed as misconceived the applicant’s argument that reg 48(c)–(e) are ultra vires because Corrections “can do better”.[6] The Court also found the Review Policy to be lawful for similar reasons.[7]
[2]Obiaga v Department of Corrections [2022] NZHC 3146 (Cull J) [HC judgment].
[3]Obiaga v Attorney-General [2023] NZCA 658 (Brown, Gilbert and Wylie JJ).
[4]At [34]–[35].
[5]At [39] and [42]–[43].
[6]At [41] and [51].
[7]At [54]–[61].
The applicant seeks leave to appeal. The respondent accepts that the issue is intrinsically important but says an appeal has insufficient prospect of success to warrant leave.

Our assessment

We accept that the security classification system for prisoners is important. Security classifications have a major impact on prisoners’ conditions, access to rehabilitation and duration of imprisonment. Classification decisions may well justify an appeal to this Court in an appropriate case.
But we do not find this case to be an appropriate vehicle, because the Court is being asked to assess Corrections’ processes in the absence of a factual context. The High…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZSC 49
Decision Date: 6 May 2024

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an application for leave to appeal by David Ikenna Obiaga, challenging the validity of certain regulations and policies governing the security classification of prisoners. The applicant contended that specific provisions of the Corrections Regulations 2005 and the associated Review Policy were unlawful as they allowed the Department of Corrections to consider factors beyond the risk posed by the prisoner when determining security classifications. The relief sought was a declaration that the relevant sub-regulations were beyond the powers granted by the Corrections Act 2004, and that the Review Policy was unlawful.

The legal issues before the Court centred on the scope of the empowering provisions in the Corrections Act 2004 and whether the Regulations and Review Policy were consistent with those provisions. The Court had to determine whether the factors listed in reg 48(c)–(e) of the Corrections Regulations 2005, such as the prisoner's cooperation with staff and motivation towards their management plan, were appropriately broad or if they exceeded the authority granted by the Act. Additionally, the Court needed to assess the legality of the Review Policy that implemented these regulations.

The Court, comprising Glazebrook, Ellen France, and Miller JJ, dismissed the application for leave to appeal. The Court found that the security classification system for prisoners was of significant importance, as it affects prisoners' conditions, access to rehabilitation, and the duration of their imprisonment. However, the Court concluded that the applicant's case did not provide an appropriate vehicle for addressing these issues. The Court noted that the applicant had not challenged his own security classification decisions and that the arguments were presented in the abstract. The Court also highlighted that the proposed appeal had substantial implications for the management of prisons. The Court was hesitant to entertain the relief without a factual context, as it might need to consider a more nuanced remedy than simply declaring the sub-regulations or policy to be unlawful. Consequently, the Court found that the appeal had insufficient prospect of success to warrant leave.

The final orders of the Court were that the application for leave to appeal was dismissed, and there was no order as to costs since the applicant was legally aided.

Orders