Sweeney v The Prison Manager, Spring Hill Corrections Facility
[2021] NZHC 181
•17 February 2021
For a Court ready (fee required) version please follow this link
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2019-419-49
[2021] NZHC 181
BETWEEN PAUL TUKUNOA SWEENEY
Applicant
AND
THE PRISON MANAGER, SPRING HILL CORRECTIONS FACILITY
Respondent
Hearing: 10 September 2020 with further submissions 17 September 2020 Appearances:
C T Gudsell QC and R J Southall for the applicant K E Hogan and M R Graham for the respondent
Judgment:
17 February 2021
JUDGMENT OF PALMER J
This judgment was delivered by me on Wednesday 17 February 2021 at 4.00 pm.
Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Counsel/Solicitors:
C T Gudsell QC, Hamilton
K E Hogan, Barrister, Auckland McKenna King Ltd, Hamilton Crown Law, Wellington
SWEENEY v THE PRISON MANAGER, SPRING HILL CORRECTIONS FACILITY [2021] NZHC 181
[17 February 2021]
Summary
[1] In October 2014, the Department of Corrections approved Mr Paul Sweeney as a specified visitor to the Spring Hill Corrections Facility (Spring Hill). The approval was necessary for Mr Sweeney’s work for CareNZ as an Addictions Counsellor at Spring Hill. Mr Sweeney was in a good position to undertake that work because he was decades clear of addiction, criminal offending and involvement in the Mongrel Mob. In April 2016, the Prison Manager revoked Mr Sweeney’s approval because of concerns that Mr Sweeney maintained an active association with the Mongrel Mob and had not provided a satisfactory explanation for his visit to a self- care unit. But Mr Sweeney and CareNZ had provided compelling explanations to Corrections that he did not have any active association with the Mob and he thought he had permission to visit the self-care unit to pray with an outgoing prisoner. While the revocation decision did not breach Mr Sweeney’s right to natural justice, it was unlawful because it was unreasonable. In order to uphold Mr Paul Sweeney’s mana, and vindicate his rights, I declare that the decision of the Prison Manager at Spring Hill to revoke Mr Sweeney’s specified visitor approval was unreasonable and therefore unlawful.
What happened?
Mr Sweeney
[2] Mr Sweeney, in his late 50s, was a drug treatment counsellor from 2014 to 2016. He brought to that role his experience of significant criminal convictions from 1975 to 1991 and many years of gang life which he left behind after 1991.1 To do so, he had to sever connections with family and friends and says “[i]t has been a lonely journey”.2 He is now “30 years drug and alcohol free and out of prison”.3 He published and distributed a book about his own past criminal offending and subsequent reform, citing his faith as central to rebuilding his life.4 He states that the years he has spent
1 Affidavit of Paul Sweeney, 18 February 2019 [Sweeney Affidavit] at [68] and [69].
2 At [70].
3 Reply Affidavit of Paul Sweeney, 19 August 2020 [Sweeney Reply Affidavit] at [25].
4 Sweeney Affidavit at Exhibit E.
working towards reform have been “the most rewarding and purpose filled” of his life.5
Specified Visitor Approval
[3] In 2010, CareNZ was engaged by the Department of Corrections to provide drug treatment services at Spring Hill. In or around September 2014, Mr Sweeney applied for a job at CareNZ as an Addictions Counsellor at Spring Hill. The job required Mr Sweeney to have “specified visitor” approval under pt 8 of the Corrections Regulations 2005 (the Regulations). Mr Sweeney applied for approval through Mr Ed Kitchin, the Clinical Manager at CareNZ.6
[4] In a letter of 1 October 2014 to Mr Sweeney, Mr Stephen Hughes, the Spring Hill Security Manager, recorded Corrections’ specified visitor approval of Mr Sweeney from 1 October 2014 to 29 September 2015.7 This approval was for the purposes of “addressing the cultural or other specific needs of a prisoner”, under reg 91(1)(b) of the Regulations.8 On or around 12 October 2016, Mr Sweeney entered into an employment agreement with CareNZ, which required him to gain and retain Ministry of Justice clearance.9 This was understood to refer to specified visitor approval.10
[5] A copy of Mr Sweeney’s application is not now available. Mr Sweeney did not retain it. The Corrections manager in charge of Mr Sweeney’s case destroyed Corrections’ copy, after Mr Sweeney’s prohibition from Spring Hill.11 Mr Sweeney’s recollection is that he included in his application all the required information, including about gang relationships within his family and his criminal offending.12 In any case, it is clear that Corrections obtained a copy of Mr Sweeney’s Criminal Convictions Report from the Ministry of Justice because it was attached to the letter recording the specified visitor approval.
5 At Exhibit E.
6 At [5].
7 At Exhibit C.
8 At Exhibit C.
9 At [10] and Exhibit D.
10 At [10].
11 Sweeney Reply Affidavit at Exhibit U.
12 Sweeney Affidavit at [8].
[6] From October 2014 to April 2016, Mr Sweeney undertook his work as Addictions Counsellor at Spring Hill without incident. He generally worked eight- hour shifts, five days a week. He estimates he would have visited Spring Hill more than 350 times in the 18 months.13 Before the hearing, there was a dispute between the parties about the number of Mr Sweeney’s visits to Spring Hill, with Corrections’ system recording far fewer visits than Mr Sweeney attested to. Under cross- examination, Mr Christopher Lightbown, the Prison Director at Spring Hill, considered it was likely Mr Sweeney’s card was not swiped for some visits.14 I accept Mr Sweeney’s evidence about the frequency of his visits.
[7]Mr Sweeney says:15
[72] I want to help and be a role model for the inmates in prison. In my role with CareNZ at [Spring Hill], I tried to show the inmates that there is help available, they can change their lives, rehabilitate, stop offending and lead a normal life, perhaps even help others along the way.
…
[74] I was able to reach these men. I had tremendous results. I came from the same place as the inmates I was trying to help. I could speak their language. I had faced the same setbacks and discrimination by the Justice system and Corrections. They were able to see that drugs and offending and gangs did not have to be a life-long choice. My story offered the inmates hope.
[8] Mr Lightbown agreed, under cross-examination, that he had no question marks about Mr Sweeney’s job performance.16
Another application and extended approval
[9] In September 2015, Mr Sweeney applied for the position of Programme Facilitator with Corrections. This application has been retained by Corrections. In it, Mr Sweeney stated he had been a gang member and had whānau who were gang members.17 He also stated that he had criminal convictions and listed details of these. He agreed Corrections could conduct a full criminal record check. Mr Sweeney’s application was not successful, “due to the criminal conviction information you have
13 Sweeney Reply Affidavit at [11].
14 Notes of Evidence (NOE) 42/20–25. The title of the role later changed to Prison Manager.
15 Sweeney Affidavit at [72] and [74].
16 NOE 28/30–33.
17 Sweeney Reply Affidavit at Exhibit E.
provided”.18 Corrections appears to have considered Mr Sweeney’s status as Addictions Counsellor internally at that time but took no action.19
[10] Mr Lightbown accepts Corrections was aware Mr Sweeney’s approval lapsed in September 2015.20 Accordingly, his access card expired and CareNZ and Mr Sweeney were advised.21 Corrections required Mr Sweeney to attend a further induction, which he did on 2 November 2015.22 Corrections took no issue with the status of Mr Sweeney’s specified visitor approval from September 2015 until April 2016.23 Prior to April 2016, Mr Sweeney had not “been brought to [Mr Lightbown’s] attention for any reason at all”.24 Notwithstanding Corrections’ subsequent inconsistent assertions, outlined below, I find Corrections implicitly extended Mr Sweeney’s specified visitor approval when it lapsed in September 2015. The approval was current until it was suspended and then revoked in April 2016.
Corrections’ concerns
[11] In the week of 30 March 2016, Ms Alwin Strydom, a Corrections Intelligence Analyst at Spring Hill, noticed Mr Sweeney in a self-care unit within the prison. She then found Facebook posts by Mr Sweeney involving the Mongrel Mob. On Friday 1 April 2016, she emailed Mr David Alty, another Corrections staff member, about both things, saying “I could not believe all the MM [Mongrel Mob] links and comments…”.25 Ms Strydom included in the email two Facebook posts by Mr Sweeney referring to the deaths of two old friends of his, Mr Roy Dunn and Mr Ike Miringaorangi, who had been Mongrel Mob members. One post included a picture of a bulldog and another included the phrase “[t]he Bulldog has gone Travel well my brother”.26 Ms Strydom said she had ongoing concerns. Mr Alty forwarded the email to Ms Maree Chetwin, an HR Manager with Corrections.
18 At Exhibit F.
19 At Exhibit G.
20 Affidavit of Christopher Lightbown, 24 June 2020 [Lightbown Affidavit] at [3.15] and [3.16].
21 At [3.16].
22 At [3.16].
23 Sweeney Affidavit at [14]; and Sweeney Reply Affidavit at [9](c).
24 NOE 29/1–3.
25 Sweeney Reply Affidavit at Exhibit K.
26 At Exhibit K.
[12] On Monday 4 April 2016, Ms Chetwin asked the Corrections Regional Commissioner, Mr Terry Buffery, what he wanted to do with this information, mentioning that Mr Sweeney was an external contractor.27 Mr Buffery replied the same day, saying:28
Chris will have a talk with you tomorrow. My view is there is more than enough here for Chris to see this as too big a risk and remove the site access for the person concerned. For me it is more a question of how we do that given the last time it happened at [Spring Hill], we were then cited as the reason for the contractor dismissing their employee.
[13] The next day, Tuesday 5 April 2016, Ms Strydom sent to Mr Lightbown the Facebook posts previously mentioned and a further Facebook post by Mr Sweeney with video footage from Mr Dunn’s tangi.29
Suspension
[14] On Tuesday 5 April 2016, Mr Lightbown “initiated a ‘temporary site ban’ in respect of Mr Sweeney”.30 I refer to this as the suspension of Mr Sweeney’s specified visitor approval, as counsel for Corrections also characterises it. In his affidavit of 24 June 2020, Mr Lightbown explained, “I did this because I was concerned about the information to hand about Mr Sweeney visiting the self-care unit, rather than the Drug Treatment Unit, and his apparent association with the Mongrel Mob”.31
[15] Around lunchtime that day, Mr Lightbown told Mr Kitchin of the temporary exclusion and advised he would review it in seven days’ time, giving CareNZ and Mr Sweeney “an opportunity to alleviate my concerns”.32 Mr Sweeney learnt of that before he left that day.33
27 At Exhibit K.
28 At Exhibit K.
29 At Exhibit O.
30 Lightbown Affidavit at [4.8].
31 At [4.9].
32 At [4.11].
33 Sweeney Affidavit at [15].
Further communications and explanations
[16] Later in the evening of 5 April 2016, Mr Sweeney asked Mr Kitchin by email for written clarification as to what allegations he was meant to respond to.34 On Wednesday 6 April 2016, Mr Sweeney received an email from Mr Kitchin saying that Mr Lightbown was expressing concerns regarding Mr Sweeney’s connections with the Mongrel Mob and a secondary concern about the visit to the self-care unit.35 Mr Kitchin asked Mr Sweeney to provide a brief statement in response.36
[17] On Friday 8 April 2016, saying “he can’t help himself”, Ms Strydom emailed to a number of Corrections staff Mr Sweeney’s Facebook share, probably in April 2016, of a post made by someone else in May 2013.37 The post was apparently based upon a press release by Mr Hone Harawira in February 2012, criticising the then Minister of Social Development, Hon Ms Paula Bennett. Mr Buffery replied, “Good job Chris no longer allows him on site – good call Chris”.38
[18] On Monday 11 April 2016, Ms Chetwin asked for confirmation the matter had been resolved.39 In reply that day, Mr Lightbown said:40
I revoked his approval to come on site last Tuesday. The manager of the [Drug Treatment Unit] was going to follow up through their HR people, but he didn’t comeback [sic] to me due to being off site until today. I have handed over to Christine to meet with the Manager DTU, from a relationship prospective [sic]. However due to the Intel we have it is highly likely he won’t be approved to come back on site.
[19] On Thursday 14 and Friday 15 April 2016, Mr Kitchin sent several emails to Mr Lightbown, referring to providing him with Mr Sweeney’s statement, and statements in support by Mr Kitchin and by the Acting Chief Executive of CareNZ, Mr Michael Bird.41 In summary:
34 At Exhibit I.
35 At Exhibit I.
36 At Exhibit I and [18].
37 Sweeney Reply Affidavit at Exhibit L.
38 At Exhibit L.
39 At Exhibit K.
40 At Exhibit K.
41 At Exhibits H, I, and J.
(a)Mr Sweeney explained his personal circumstances as an orphan. He was taken in by a family whose son he had befriended on the street and whose whānau were Mongrel Mob members. He explained he had been addicted and had offended but had reformed. He has raised four children and spoken at prisons in Invercargill, Christchurch, Waikeria and Spring Hill.42
(b)Mr Sweeney explained he has two brothers and four nephews in the Mongrel Mob. He has no personal relationship with the Mob which he had left 28 years ago.43 He explained he attended the tangi of Roy Dunn, with whom he had grown up in the welfare system and foster homes. He said Mr Dunn had tried to lead the Mob down a new path with methamphetamine rehabilitation. This was supported by the Salvation Army, government officials and Ministers who also attended the tangi. He stated that he attended the tangi “because I loved the brother Roy and it is just what we do as Māori”.44 He said there were things on his Facebook page about Mr Dunn’s tangi “because that is just the way people send information today”.45 He said he used the term “Bulldog” in his Facebook post because that is how Mr Dunn was known.
(c)Mr Sweeney also explained his visit to the self-care unit.46 He said that, as he entered that morning, he was told one of the Drug Treatment Unit graduates was about to be released. He asked where he was and whether he could go and see him, and the officer told him where to go. At the self-care unit an officer told Mr Sweeney the graduate was in building N, which he understood to be permission to see him. He went to quickly pray with him and say goodbye.
42 Sweeney Affidavit at Exhibit H.
43 At Exhibit J.
44 At Exhibit J.
45 At Exhibit J.
46 At Exhibit J.
(d)Mr Kitchin’s and Mr Bird’s letters supported Mr Sweeney.47 Mr Kitchin said, “I can testify that he is one of the few people who can reach this community”.48 He supported Mr Sweeney’s comments about Mr Dunn’s vision to change the direction of the Mongrel Mob. He said he had been aware of Mr Sweeney’s link to the Mongrel Mob since the day he started and that he has no reason to suspect any anti-social aspect of Mr Sweeney’s current links. Mr Bird said “it would be a great loss to the DTU” to lose Mr Sweeney’s “insight, relationship skills and counselling expertise”.49
(e)Mr Kitchin also said that the Hon Hekia Parata, the then Minister of Education, “and several other community leaders” attended Mr Dunn’s tangi due to the significance of his work.50 He provided a link to a news story about Mr Dunn. He asked to meet Mr Lightbown along with Mr Sweeney and his support person.51
[20] On 15 April 2016, Mr Lightbown met with Mr Kitchin. In his affidavit Mr Lightbown says he recalls receiving and reading the statements by Mr Bird and Mr Sweeney.52 After the meeting, Mr Lightbown emailed Mr Buffery, saying, “I do need to provide something in writing to Paul as per the regulation” and set out a draft letter, saying this “should cover off our obligation”.53 The draft was identical to the final letter to Mr Sweeney, dated 19 April 2016, recording Mr Lightbown’s decision to revoke Mr Sweeney’s specified visitor approval.
[21]The letter said:54
I am writing to you in regards to your status as a specified visitor to Spring Hill Corrections Facility.
As recorded in our 1 October 2014 letter advising you of the provision of specified visitor status. That letter communicated that “the specified visitor
47 At Exhibit L.
48 At Exhibit L.
49 Sweeney Affidavit at Exhibit L.
50 Sweeney Reply Affidavit at Exhibit H.
51 At Exhibit I.
52 Lightbown Affidavit at [4.18]–[4.19].
53 Sweeney Reply Affidavit at Exhibit M.
54 Sweeney Affidavit at Exhibit M.
approval can be suspended, varied, or revoked or new conditions proposed at the direction of the Prison Manager and anytime”.
I have raised concerns with your employer Care NZ in my office on 5 April 2016, where I shared with them information within the public domain that are [sic] posted on your Facebook page that presents a risk to both staff and prisoners. Subsequently, I met further with your employer on 15 April 2016 and they provided written submissions via yourself. I am now in a position where I can advise you of my decision in relation to those concerns.
In accordance with regulation 93(3) of the Corrections Regulations 2005, this letter advises you that your specified visitor status was suspended from 6 April 2016 and fully revoked with effect from 15 April 2016. The effect of this revocation is that you are no longer approved to enter Spring Hill Corrections Facility or buildings for any reason.
[22]In his affidavit, Mr Lightbown says:55
I took into account the submissions made by and on behalf of Mr Sweeney however I was not satisfied that the risks to the Prison had been mitigated. The risks arose because of Mr Sweeney’s ongoing association with the Mongrel Mob and the lack of satisfactory explanation as to why he had visited the self-care house, rather that [sic] the Drug Treatment Unit. Mr Sweeney’s criminal history remained a relevant consideration.
[23]Under cross-examination at the hearing, Mr Lightbown said:56
…the concerns I had in April [2016]…was actually based on the Facebook page and going over to the induction unit. I was aware or made aware that Mr Sweeney did have a previous – and if you don’t mind me saying the words criminal past but actually we have a number of people who work at Spring Hill who also have got criminal pasts and actually that’s not an issue because to be honest it’s all about their peer support and doing the right thing so I don't – that was not something which I considered in April 2016.
[24] Under cross-examination, Mr Lightbown said his concerns did not include the previous criminal convictions and he did not accept that the Facebook post about Ms Bennett was relevant.57 But he also said he took into account Mr Sweeney’s criminal history in terms of ongoing association with the Mongrel Mob.58 He said he took into account the lack of a satisfactory explanation for Mr Sweeney’s visit to the self-care unit.59 And Mr Lightbown said he was not given an assurance around the
55 Lightbown Affidavit at [5.2].
56 NOE 8/19–27.
57 NOE 38/5–13.
58 NOE 41/22–27.
59 NOE 41/19–21.
safety and security of the site, based on the Facebook material, and Mr Sweeney’s ongoing relationship with or “activity with” people in the Mongrel Mob.60
[25]Mr Sweeney challenges the revocation decision.
Effect on Mr Sweeney
[26] Mr Sweeney says he was devastated by the decision as it meant he could no longer visit Spring Hill to carry out his employment at CareNZ.61 He negotiated with CareNZ to go on six months’ leave without pay on the basis that, if approval was not reinstated by 1 February 2017, CareNZ would review whether it had suitable vacancies.62 As it turned out, CareNZ lost its contract to provide drug treatment programmes at Spring Hill in January 2017.63 It was unable to find another role for Mr Sweeney.
[27] Mr Sweeney was subsequently able to find another position with another employer, though at a significantly lower salary.64 But he considers Corrections’ decision “continues to impact on my ability to find a role suited to my qualification, skills and experience.”65
Subsequent inconsistent explanations
[28] After the decision was made and communicated, Corrections’ explanations of the reasons for the decision have been inconsistent and changed on several occasions:
(a)On 6 July 2016, an internal Corrections memorandum recorded that Mr Sweeney’s specified visitor approval had been declined by Spring Hill’s Security Manager, Mr Don Tukula.66 It said “Mr Sweeney’s submission was not heard because it was not required and not part of
60 NOE 35/25–27, 36/20–22 and 37/1-2.
61 Sweeney Affidavit at [25].
62 At [27]–[28].
63 At [48], [53] and Exhibit AC.
64 At [46]–[47].
65 At [41].
66 Sweeney Reply Affidavit at Exhibit A (Internal Corrections Memorandum, 6 July 2016).
our policy”.67 In his affidavit, Mr Lightbown says that was incorrect.68 He also said he considered it likely he had approved and signed the letter.69 Under cross-examination he said he made the revocation decision and Mr Tukula did not.70
(b)On 4 July 2016, 11 July 2016 and 21 July 2016, Mr Sweeney’s then lawyer, Ms Rose Alchin, wrote to Corrections asking for clarification of the authority, grounds and information relied upon, and the process followed.71 Ms Julie Miller, Ministerial Services Manager in Corrections, responded on 25 July 2016 with the same explanation for why Mr Sweeney’s submission was not heard. She also said:72
On or about 4 April 2016, [Spring Hill] conducted a routine review of specified visitors. Mr Sweeney’s status was found to have expired on 29 September 2015. A review of Mr Sweeney’s status was conducted where the following concerns were raised:
·Mr Sweeney’s criminal and traffic history report was examined. In 1986/1987, a list of convictions of abducts for sex, aggravated assault (manual), male rapes female (no weapon) and 2 counts of unlawful sexual connections were acknowledged as serious. He received a concurrent sentence of 7 years imprisonment.
·Evidence supplied via Facebook indicated that he is actively associating [with] and supporting patched gang members, specifically the Mongrel Mob. As such the Department determined this activity presented as a conflict of interest under his current role as a contracted service provider.
·Evidence gathered via Facebook, suggested Mr Sweeney is actively criticising the current government. This is a direct conflict with the Department’s view and policy and as such was determined to put the Department’s reputation at unnecessary risk and deemed to be in breach of the Department’s Code of Conduct.
67 Internal Corrections Memorandum at 217.
68 Lightbown Affidavit at [4.20].
69 At [5.4].
70 NOE 21/27–33 and 22/1–3.
71 Sweeney Affidavit at Exhibits O, P and Q.
72 At Exhibit R.
Mr Lightbown’s evidence was that he had not seen the letter before he was referred to it in cross-examination. He did not recall having dealings with Ms Miller about it and, to the best of his knowledge, he did not contribute to it.73 However, he later acknowledged that he may have put something in writing in July 2016 to a Ministerial Adviser at Corrections’ National Office to respond to Mr Sweeney’s then lawyer’s letter.74 In any case, he said his thinking was completely different to what is in the last paragraph of the letter, regarding Mr Sweeney’s submission not being heard as a matter of Corrections’ policy, and Mr Sweeney’s approval being routinely reviewed and then declined.75 His evidence is that he revoked Mr Sweeney’s approval; its renewal was not declined.76
(c)On 25 October 2016, in response to Ms Alchin’s invitation to reconsider its position, Ms Miller in Corrections wrote again to “clarify the legal basis for Mr Sweeney no longer being a specified visitor”.77 This letter said that the Prison Director’s letter revoking Mr Sweeney’s approval status was incorrect. At the time, “there was no approval to be revoked” because the Department had reviewed his status on 4 April 2016 and found it had expired. Ms Miller enclosed a blank application form for specified visitor status which she said Mr Sweeney was welcome to complete and submit. In an internal email, Mr Lightbown stated it was “highly likely” that Mr Sweeney would not be approved to return.78
(d)On 22 November 2016, in a further letter, Corrections maintained its position that the approval had expired and expressed its regret Mr Sweeney had not been advised of that earlier.79
73 NOE 10/19–21, 11/1–5 and 15/9–14.
74 Lightbown Affidavit at [6.1]; and NOE 18/14–15.
75 NOE 12/7–15.
76 NOE 14/1–8.
77 Sweeney Affidavit at Exhibit W.
78 Sweeney Reply Affidavit at Exhibit K.
79 Sweeney Affidavit at Exhibit Y.
(e)In an affirmative defence in its statement of defence of 2 May 2019, Corrections pleaded the decision of 19 April 2016 was “null” because the approval had already expired.
[29] The inconsistencies between these explanations, the original documentation and Mr Lightbown’s affidavit meant, unusually in a judicial review, I permitted Mr Lightbown to be cross-examined at the hearing.
Corrections Report
[30] In early July 2016, after the decision had been made about Mr Sweeney, there was media controversy about the position of a volunteer at Whanganui Prison with gang associations.80 On 31 October 2016, Corrections released a report into that matter.81 It reported that 76 specified visitors, or one per cent of the total specified visitors, had some form of current or historic gang link.82 For 55 of them, only Facebook associations were found and no action was taken. For the remaining 21, Corrections assembled and reviewed their profiles. Two had their specified visitor approval “declined/revoked” and one was reinstated.83 Following release of the Report, Mr Ray Smith, the then Chief Executive of Corrections, issued a media release stating, “Corrections accepts that someone who has clearly distanced themselves from former gang involvement can provide appropriate support for prisoners to also desist from gangs and focus on living a crime-free lifestyle”.84
What was the revocation decision based on?
[31] Mr Gudsell QC, for Mr Sweeney, invites me to consider that Mr Lightbown was an unimpressive witness who did not entirely understand his role and that I could not confidently rely on his evidence as being accurate. Ms Hogan, for Corrections, acknowledges the “inconsistent messaging” from Corrections but submits Mr Lightbown’s evidence was clear, consistent and honest under robust challenge and
80 At Exhibit AE.
81 At Exhibit AF (The National Intelligence Unit and Quality and Performance “Review of Vetting, Induction, Training and Gang Connections of External Providers (Specified Visitors)” (Department of Corrections, 31 October 2016) [Corrections Report]).
82 Corrections Report at 3.
83 At 3.
84 Sweeney Affidavit at Exhibit AG.
he made no efforts to improve it or fill gaps. She submits his concerns were about Mr Sweeney’s association with the Mongrel Mob and his visit to the self-care unit, consistent with his communication with Mr Kitchin on 5 April 2016. She submits the criminal history was a necessary background factor to those concerns and there is no evidence the Bennett Facebook post factored into the decision at all.
[32] I find that Mr Lightbown’s decision to revoke Mr Sweeney’s specified visitor approval was based on his concerns that Mr Sweeney maintained an active association with the Mongrel Mob and had not provided an explanation for his visit to the self- care unit that Mr Lightbown regarded as satisfactory.85 Mr Lightbown regarded the nature of Mr Sweeney’s criminal history as relevant in as far as it was related to his association with the Mongrel Mob.86 Under cross-examination, Mr Lightbown did not say clearly whether the Facebook post about Ms Bennett was relevant to his decision.87 But he was advised of the post only after he had raised his concerns about Mr Sweeney with CareNZ. And this was before the public controversy in July 2016 that led to the report mentioned above. On the balance of probabilities, I do not consider it has been established that the Bennett post was relevant to the revocation decision.
[33] I do not consider Corrections declined Mr Sweeney’s renewal of his approval. That characterisation is entirely inconsistent with the contemporaneous communications, and with Mr Lightbown’s evidence under cross-examination. That follows from my finding above that his approval was current in April 2016.
[34] Ms Miller’s explanation in her letter of 27 September 2016, of a routine review of Mr Sweeney’s approval which was found to have lapsed, was not correct. It, and the further letter of 25 October 2016, have the air of a series of retrospective reinventions of history. Her explanation that Mr Sweeney’s submission was not heard would likely have been a breach of natural justice if it had been true; but it was not. Her invitation to Mr Sweeney to complete a further application for approval appears disingenuous, especially given Mr Lightbown’s email indication that it was highly likely Mr Sweeney would not get approval to return.
85 NOE 41/10–27.
86 NOE 41/22–27.
87 NOE 38/29–40/5.
[35] Corrections objects to statements in Mr Sweeney’s affidavit on the basis they were hearsay. It submits the relevant statements should be given “little if any weight”.88 I have taken that into account in my decision. Where I do refer to these statements, I do not rely upon them to establish the truth of their contents. In particular, I do not rely on Mr Kitchin’s emails as establishing the truth of Mr Lightbown’s account of the reasons for the revocation.
The statutory framework for Corrections’ decision
[36] Section 5 of the Corrections Act 2004 (the Act) provides that “the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society” in four specified ways. Under subs (1)(a), one of those is by ensuring custodial sentences are administered in “a safe, secure, humane, and effective manner”. Under subs (1)(c), another is by “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”. Section 6(2) requires persons who exercise powers under the Act or any regulations made under it, to take into account specified principles “that are applicable (if any), so far as is practicable in the circumstances” including:
(a)the maintenance of public safety is the paramount consideration in decisions about 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;
…
88 Submissions for Respondent, 4 September 2020 [Respondent Submissions] at [3.1] (regarding paragraphs [11](c), [13], [15], [17]—[21], [22], [42] and associated exhibits).
(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:
[37] Section 69(1)(e) specifies that one of the “minimum entitlements” of every prisoner is “access to … specified visitors”. Under s 69(3), minimum entitlements may be denied for specified reasons “if, in the opinion of the prison manager . . . it is not practicable to provide those entitlements, having regard to the … resources available”.
[38] Sections 200(1)(a) and 201(b) empower regulations to be made “regulating the visiting of prisoners” including, at s 201(b)(i), “requiring … any specified class of persons to obtain approval from the chief executive before visiting prisoners”. Regulation 91 provides, relevantly:
91 Specified visitors approved by manager
(1)The prescribed purposes for which a manager of a prison may approve a person as a specified visitor to that prison are—
(a)to provide spiritual or religious guidance or spiritual or religious instruction to a prisoner:
(b)to address the cultural or other specific needs of a prisoner:
(c)to act as a mediator or conciliator in a dispute involving prisoners:
(d)to assist a prisoner to prepare for a disciplinary hearing:
(e)to assist a prisoner to prepare or deal with a complaint by the prisoner.
(2)The manager may—
(a)impose reasonable conditions as he or she thinks fit on the approval of a person as a specified visitor; or
(b)limit the duration of that approval; or
(c)both.
[39] Regulation 92 empowers the chief executive to limit the duration of approval of a specified visitor and/or impose reasonable conditions on the approval. Regulation 93 provides, relevantly:
93 Specified visitor approvals
(1)An approval by the manager or the chief executive under regulation 91 or regulation 92 must—
(a)be in writing and signed by the manager or the chief executive, as the case may be; and
(b)state the name of the specified visitor; and
(c)if regulation 91 applies, state the purpose or purposes for which the person is approved as a specified visitor; and
(d)state the conditions (if any) imposed on the approval of that person as a specified visitor; and
(e)state the duration of that approval.
(2)On his or her own initiative, or at the request of the manager of a prison, the chief executive may—
(a)suspend, vary, or impose conditions attaching to an approval issued by the chief executive; or
(b)revoke any such approval.
(3)The manager of a prison may—
(a)suspend, vary, or impose conditions attaching to an approval as a specified visitor to that prison issued by that manager; or
(b)revoke any such approval.
(4)The chief executive must notify the specified visitor and the appropriate manager in writing of any action taken under subclause (2).
(5)The manager of a prison must notify the specified visitor in writing of any action taken under subclause (3).
[40] At the time Mr Sweeney’s specified visitor status was approved, cl V.01.03 of the New Zealand Prison Operations Manual, a Corrections policy document, provided, relevantly:89
1. A visitor’s current or past offending should not result in an automatic refusal.
2The receptions and movements manager must consider the following when determining whether to approve or decline the applications of private / specified visitors: a the security, discipline or good order of the prison b. the welfare, chances of successful rehabilitation or
89 Lightbown Affidavit at [2.3].
reintegration c. safety of the prisoner or prisoners concerned d. other prisoners e. the welfare or safety of any other person in the prison f. whether the visitor has refused the prison manager authority to access information contained in official records in order to verify the information given.
[41] By the time Mr Sweeney’s approval expired, on 29 September 2015, cl V.01.03 had been amended to state:
1.When determining a visitor application, staff must consider if visits to the prisoner from the applicant will support the prisoner maintaining their family and social relationships in order to promote the prisoner’s re-integration into the community on release.
2.A visitor’s current or past offending should not result in an automatic refusal.
3.The reception/movements manager must consider the factors set out in regulation 101(1) of the Corrections Regulations 2005 (refer V.01.Form.01 Private visitor application – Section A: Information about visitor) to determine whether to approve or decline the applications of private / specified visitors based on:
a.the security, discipline or good order of the prison
b.the welfare, chances of successful rehabilitation or reintegration
c.safety of the prisoner or prisoners concerned
d.other prisoners
e.the welfare or safety of any other person in the prison
f.whether the visitor has refused the prison director authority to access information contained in official records in order to verify the information given.
4.The reception/movements manager must prohibit a visitor if that visitor is currently prohibited from another prison, unless the order relates to a specifically named prisoner.
Issue 1: Is the decision amenable to judicial review?
Law of amenability to judicial review
[42] In addition to complying with statutory decisions, decision-makers are sometimes surprised to find that the law of judicial review imposes other legal requirements on them. As noted in s 3, the Judicial Review Procedure Act 2016
(JRPA) sets out procedural provisions for the judicial review of the use of statutory powers. Under the JRPA, relevantly:
(a)Section 4 provides an “application for judicial review” means an application for judicial review “in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.
(b)Section 5(1)(a) provides “statutory power means a power or right to do any thing that is specified in subsection (2) and that is conferred by or under—any Act”. Subsection (2) provides:
The things referred to in subsection (1) are—
…
(b)to exercise a statutory power of decision; or
(c)to require any person to do or refrain from doing anything that, but for such requirement, the person would not be required by law to do or refrain from doing; or
(d)to do anything that would, but for such power or right, be a breach of the legal rights of any person; or
(e)to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person.
(c)Section 4 provides:
statutory power of decision means a power or right conferred by or under any Act . . . to make a decision deciding or prescribing or affecting—
(a) the rights, powers, privileges, immunities, duties, or liabilities of any person; or
(b) the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether that person is legally entitled to it or not.
[43] While the JRPA provides procedural assistance, judicial review itself is a common law procedure by which the judiciary supervises the exercise of public power.
Submissions
[44] Mr Gudsell QC, for Mr Sweeney, submits decisions under reg 93(3) are amenable to judicial review. Courts take a broad approach to what constitutes a statutory power of decision. Sections 4 and 5 of the JRPA refer to powers “conferred by or under” Acts which extend to powers under subordinate legislation. Corrections was carrying out statutory duties under the Act, in the public interest and under reg 93(3) which might adversely affect the rights of private individuals. The regulations contain the requisite public law aspect that makes the decision amenable to judicial review. Members of the public have the right to have the power under reg 93(3) exercised fairly, reasonably and without discrimination. If it is not, they have the right to have the exercise of the power reviewed by the Court. Unlike other cases, Mr Gudsell submits the decision here impacts upon a non-prisoner, is not administrative in nature, must be made on a case by case basis and impacts upon Mr Sweeney’s ability to carry out his employment.
[45] Ms Hogan, for Corrections, characterised her submissions about justiciability as her primary focus. She submits there is a novel and untested argument that only statutory powers, not regulatory powers, are amenable to judicial review under s 5(1)(a) of the JRPA, which refers to powers conferred by or under “any Act”. The definition of “Act” in the Interpretation Act 1999 does not include “all rules and regulations”, as did its predecessor in the Acts Interpretation Act 1924. Ms Hogan submits there is no public law aspect to a decision under reg 93(3) in terms of an impact upon a specified visitor, there is no right to be a specified visitor, and it is a largely mechanical, unfettered, power. She submits Corrections’ relationship with Mr Sweeney was because of his employment. She also submits none of the Corrections Act’s principles are engaged by the impact on a specified visitor of a decision about them. She submits there is no evidence Mr Sweeney’s exclusion, as one provider of services, had any impact on prisoners’ rehabilitation. She submits the paramount principle of public safety informs the lack of fetters on the discretion in reg 93(3). She relies on case law that the courts should not interfere with prison management decisions.
Is the revocation decision amenable to judicial review?
[46] Ms Hogan’s submission for Corrections that the Court has no jurisdiction to hear Mr Sweeney’s application for judicial review is misconceived. Mr Lightbown made the decision to revoke Mr Sweeney’s approval under reg 93(3)(b) of the Regulations. It was, accordingly, made “under” the Corrections Act for the purposes of s 5(1)(a), and the definition of “statutory power of decision” in s 4, of the JRPA. It affected Mr Sweeney’s privileges or eligibility to receive a benefit under that definition and, therefore, qualified under s 5(2)(a). In terms of s 5(2)(c), it required Mr Sweeney to refrain from entering Spring Hill. But for that requirement, Mr Sweeney would not have been required by law to refrain from that, as he had an implicit continuing specified visitor approval.
[47] The decision clearly constitutes the exercise of public power: to determine whether Mr Sweeney may visit Spring Hill prison or not. The impact on Mr Sweeney is significant. Visiting the prison was essential to him carrying out the job he was employed to do. Whether the Court should “interfere” with prison management decisions may be relevant to whether the judicial review succeeds and/or what relief is granted. But it is not relevant to whether the Court has jurisdiction to consider an application for judicial review at all.
Affirmative defence
[48] Corrections also pleads an affirmative defence that Mr Lightbown’s revocation decision was null and moot, without legal significance, given the approval had already expired. Ms Hogan acknowledges the argument that Mr Sweeney had implicit ongoing approval and was treated by Mr Lightbown as doing so, as I find to be the case above. She characterised Corrections’ position as not resiling from the legal argument but acknowledging the factual problems it has. Mr Gudsell submits the defence cannot be sustained in any respect given that Mr Lightbown agreed Mr Sweeney had approval to visit after its supposed expiration. I accept Mr Gudsell’s submission.
Issue 2: Did Mr Sweeney receive natural justice?
Law of natural justice
[49] Contravening the right to natural justice is a ground of judicial review. The right to natural justice includes the right to know enough about the allegations to answer the case against you.90 The strictness of the requirement is influenced by the context, include the seriousness of the allegations against you and what is at stake. Decisions where someone’s livelihood and/or reputation are at stake are recognised as serious.91 Section 27(1) of the New Zealand Bill of Rights Act 1990 recognises the right to the observance of the principles of natural justice “by any . . . public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law”.
Submissions
[50] Mr Gudsell, for Mr Sweeney, submits Corrections did not comply with the principles of natural justice. He submits Mr Lightbown did not set out in writing, to either Mr Sweeney or CareNZ, all of the concerns held in relation to Mr Sweeney’s conduct. He also submits Mr Lightbown did not provide the basis for the concerns before the decision was made on 19 April 2016. Neither did Mr Lightbown give reasons for his decision.
[51] Ms Hogan, for Corrections, submits the alleged breaches of natural justice are disproved by the evidence that Mr Lightbown communicated his concerns to Mr Kitchin on 5 April 2016, met with him and considered statements from Mr Sweeney, Mr Kitchin and Mr Bird. She submits Mr Lightbown informed Mr Sweeney of a reason for his decision in the 19 April 2016 letter, albeit only one reason.
90 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 723.
91 For example Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [108]; and
Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at [257].
Natural justice
[52] I have found that Mr Lightbown’s revocation of Mr Sweeney’s approval was based on his concerns that Mr Sweeney maintained an active association with the Mongrel Mob and had not provided a satisfactory explanation for his visit to the self- care unit. I have also found that Mr Lightbown regarded the nature of Mr Sweeney’s criminal history as relevant in as far as it was related to his association with the Mongrel Mob. On the balance of probabilities, I did not find that the Bennett post was relevant to the decision.
[53] In his explanatory statement for Mr Lightbown, Mr Sweeney outlined his personal history and touched on his criminal history. He explained the nature of his association with the Mongrel Mob and his visit to the self-care unit in some detail. This indicates he was advised of Corrections’ key concerns and given the opportunity to address them. His statement was available to, and considered by, Mr Lightbown. I do not consider Corrections breached Mr Sweeney’s right to natural justice.
Issue 3: Was the revocation decision unreasonable?
Law of unreasonableness
[54] Mr Gudsell referred to the legal formulations of unreasonableness in Associated Provincial Picture Houses, Limited v Wednesbury Corporation and in Hu v Immigration and Protection Tribunal.92 Ms Hogan stated she took no issue with that.
[55] The English Court of Appeal’s formulation in Wednesbury, in 1947, was that the courts could only “interfere” if a decision was “so unreasonable that no reasonable authority could ever have come to it”.93 In Wolf v Minister of Immigration, Wild J stated that whether a decision is unreasonable will depend on the context: who made it, by what process, what it involves and the consequences for those affected.94
92 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (ECA); and Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508.
93 Associated Provincial Picture Houses, Limited v Wednesbury Corporation, above n 92, at 230 and 234.
94 Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [47].
[56] In 2017, in Hu, I offered and applied an alternative concept of unreasonableness to a deportation decision of the Immigration and Protection Tribunal:95
I consider the Supreme Court’s established reformulation of the Edwards v Bairstow test of when a finding of fact constitutes an error of law offers a better account of unreasonableness in judicial review than the tautologous words used in Wednesbury. Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts. Unremarkably, unreasonableness, also termed irrationality, is to be found in the reasoning supporting a public decision.
[57] I identified three scenarios encapsulated in the “insupportable or untenable ultimate conclusion” formulation which assist in identifying what constitutes unreasonableness:96
(a)if the decision is not supported by any evidence;
(b)if the evidence is inconsistent with, or contradictory to, the decision; or
(c)if the only reasonable conclusion contradicts the decision (“if there is a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion, a decision may be unreasonable and therefore unlawful”).
[58] I held the decision challenged in Hu was not unreasonable.97 Since then, in immigration and professional disciplinary contexts, the High Court has applied and adopted the Hu test and said it has “significant advantages”.98 Two judgments have upheld claims of Hu unreasonableness:
(a)In Jiang v Immigration Advisers Complaints and Disciplinary Tribunal,
Venning J applied the Hu conception of unreasonableness in a context
95 Hu v Immigration and Protection Tribunal, above n 92, at [2]. See M B Rodriguez Ferrere “Redefining Reasonableness” [2017] NZLJ 67.
96 Hu v Immigration and Protection Tribunal, above n 92, at [30].
97 At [36].
98 Galani v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 383 at [19]. See: Devi v Minister of Immigration [2017] NZHC 728 at [17] and [26]; Ragg v Legal Complaints Review Officer [2020] NZHC 2057 at [127]–[132] and [155]; and Galani v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 383 at [16]– [19].
of the disciplining of an immigration adviser.99 He held it was unreasonable for the Tribunal to make unnecessary adverse credibility findings and made a declaration accordingly.100
(b)In Zhang v Minister of Immigration, Gwyn J applied the Hu conception of unreasonableness in an immigration context.101 She found an Associate Minister’s decision to decline a resident visa on an exceptional basis was unreasonable because it was so unsupportable or untenable that proper application of the law required a different answer.102 She held its unreasonableness was a material error warranting the decision being set aside and reconsidered by the Minister.103
[59] Later in 2020, in Hauraki Coromandel Climate Action Inc v Thames- Coromandel District Council, I applied the Hu formulation of unreasonableness to a local government decision regarding climate change.104 I considered there is good reason for the appropriate “intensity” of judicial review being explicitly signalled, depending on its context, and that decisions about climate change deserve heightened scrutiny, depending on context.105 I held the decision under review there was reasonable:106
The evidence is not inconsistent with the decision. There is no material disconnect in the logic from fact or law to conclusion. The decision was not so unsupportable or untenable that the law requires a different answer. The decision is not unreasonable at law, whether given heightened scrutiny or not.
[60] Ms Hogan urged upon me cases in which courts have declined to interfere with prison management decisions. The Court of Appeal found in Taylor v Chief Executive of the Department of Corrections that “the court should be cautious in reaching a different view from the decision-maker on matters relating to the security and good
99 Jiang v Immigration Advisers Complaints and Disciplinary Tribunal [2018] NZHC 3152 at [57], [59] and [80]–[88].
100 At [87] and [90].
101 Zhang v Minister of Immigration [2020] NZHC 568.
102 At [86]–[93].
103 At [93].
104 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228.
105 At [49] and [51].
106 At [54].
order of the prison”.107 In reviewing a decision to move a prisoner from a self-care unit in McEwen v Spring Hill Corrections Facility Department of Corrections, van Bohemen J noted that “Judges have noted the risks to the effectiveness of the prison system and of the Courts if they were to become engaged in ‘micro-managing’ prisons”.108 He then stated:109
Even so, except in obviously trivial cases, the Courts have carefully considered the complaints about prison managers[’] decisions before holding them to be outside the scope of judicial review. On occasion, the Courts have also made appropriate orders where they have found that the Department had failed to comply with the Act.
[61] I do not accept that the context of operational prison management requires an unusual approach to judicial review here. A decision about specified visitor approval may not require the heightened scrutiny of human rights decisions relating directly to prisoners. But the decision here, made in the exercise of a discretion conferred by statute and regulation, directly caused the termination of Mr Sweeney’s employment. The decision was keenly felt by Mr Sweeney. Professional discipline decisions can similarly significantly affect employment and professional reputation. In Deliu v Connell, I held that the principles of lawful decision-making “are not to be either read down or elevated in the context of professional discipline”.110 I consider the same is true with decisions regarding specified visitor approvals by Corrections.
Submissions
[62]Mr Gudsell submits Corrections’ revocation decision was unreasonable in:
(a)Its reliance on Mr Sweeney’s criminal history to the point of being irrational. It had been disclosed in full before the approval was originally granted and nothing had changed.
(b)Its reliance on the Facebook posts regarding Mr Dunn and his tangi. The posts cannot, on any reasonable analysis, be treated as evidence of
107 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [89].
108 McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [58].
109 At [58].
110 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [9].
Mr Sweeney “actively associating [with] and supporting patched gang members” or any risks to prison security.111 Corrections was aware of his past associations. It overreacted to the Facebook posts, overwhelmingly disproportionately to their substance, when Mr Sweeney had provided a very full explanation.
(c)Any reliance on the post criticising Ms Paula Bennett (which Mr Lightbown sidestepped), because it did not impact on Mr Sweeney’s role.
(d)Any reliance it placed on Mr Sweeney’s visit to the self-care unit. He provided an entirely satisfactory explanation for that. Mr Lightbown’s belief it put safety at risk defies reason and fairness.
(e)The lack of regard Corrections gave to the purpose and principles of the corrections system in making its decision. Its processes reflected muddlement about whether they were revoking or failing to renew the visitor approval. This and the shifting reasons give a real sense of disquiet about the fairness and reasonableness of the decision.
[63]Ms Hogan, for Corrections, submits:
(a)There was no unreasonableness in the decision-making because the paramountcy of security within a prison informs the unfettered discretion of a Prison Manager to control specified visitors. By comparison, an employer is entitled to take action against an employee for Facebook behaviour that impacts on their job or employer. The probity of Mr Lightbown’s evidence is greater than that of the correspondence by other Corrections employees. They were not the decision-maker and were responding to repetitive confrontational requests by Mr Sweeney’s lawyer. Mr Lightbown is the best placed person to make the management decision and assess prison safety. The Facebook photograph of people at a tangi in Mongrel Mob regalia
111 Sweeney Affidavit at Exhibit R.
suggested Mr Sweeney was associating with the Mob, as did his post saying “the Bulldog has gone”.
(b)There is no dispute Corrections was aware of Mr Sweeney’s criminal history at the time of the 2014 approval. But the criminal history remained a relevant consideration in the revocation decision. There is no mistake in that, given the paramountcy of the maintenance of public safety.
(c)There was no failure to act in accordance with the Act and regulations. The Act’s objectives were complied with at all times and none of the principles of the Act were engaged. The decision does not involve fundamental human rights and a “hard look” approach is not required.
Was the revocation unreasonable?
[64] I have found that Mr Lightbown’s decision to revoke Mr Sweeney’s specified visitor approval was based on his concerns that Mr Sweeney maintained an active association with the Mongrel Mob and had not provided a satisfactory explanation for his visit to the self-care unit. I considered Mr Lightbown regarded the nature of Mr Sweeney’s criminal history as relevant in as far as it was related to his association with the Mongrel Mob.
[65] But there is a distinct lack of foundation to these concerns, when Mr Sweeney’s explanation is taken into account:
(a)Mr Sweeney’s explanation to Mr Lightbown of his relationship with Mr Dunn, separate from the Mongrel Mob, and his denials of any active association with the Mob, was compelling. His attendance at the tangi, properly understood in the context of tikanga Māori, is entirely understandable. The attendance of a Minister of the Crown and other dignitaries emphasises that. Mr Kitchin, manager of the organisation contracted by Corrections to provide addiction counselling, supported the lack of any anti-social aspect of Mr Sweeney’s current links with the Mongrel Mob. Mr Sweeney’s and Mr Kitchin’s explanations
provided a more than adequate answer to any concerns raised by Mr Sweeney’s Facebook posts. There is nothing in those posts, or any other information, to suggest Mr Sweeney was “actively associating” with the Mongrel Mob outside of mourning the death of someone with whom he had a long personal history. In the words of the Chief Executive of Corrections’ media release in late 2016, Mr Sweeney had “clearly distanced himself from former gang involvement”. There is nothing in any of this to suggest Mr Sweeney’s presence at Spring Hill was a risk to prison security.
(b)Mr Sweeney’s explanation of the circumstances of his visit to the self- care unit is similarly compelling. He provides details of the basis on which he understood he had permission to enter the unit. There is no evidence that Corrections either investigated that explanation or had any information to the contrary.
[66] I conclude the evidence on which Mr Lightbown based his decision to revoke Mr Sweeney’s specified visitor approval was inconsistent with, and contrary to, his decision. Proper application of the law required a different answer. Mr Lightbown’s decision appears to have been driven by suspicions from a staff member and reactions from his superior. But neither of them knew of Mr Sweeney’s explanations which were compelling in rebutting the concerns. Given his explanations, the decision was unreasonable at law.
[67] I do not consider the context of operational prison management alters that. The care with which the courts approach decisions relating to the security and good order of a prison does not insulate unreasonable decisions from review. The decision was unreasonable because there was no basis on which it could reasonably have been concluded Mr Sweeney’s approval posed a risk to prison security. The purposes of the corrections system under s 5 of the Act are not only “to improve public safety” but also to “contribute to the maintenance of a just society”.
Should a declaration be made?
Law of declarations as relief
[68] Remedies for judicial review are discretionary. But, as Elias CJ stated in Attorney-General v Chapman, “[t]hat rights are vindicated through remedy for breach is fundamental to the rule of law”.112 There has been some ebb and flow in the extent to which courts have held relief to be necessary in all cases.113 But the current position is adequately reflected in the statement by Elias CJ and Arnold J in Ririnui v Landcorp Farming Ltd that “although relief in judicial review is discretionary, courts today will generally consider it appropriate to grant some form of relief where they find reviewable error”.114
[69] In a prison context, in Taylor v Chief Executive of the Department of Corrections, the Court of Appeal was satisfied there were a number of errors in Corrections’ decision to refuse TVNZ permission to interview a prisoner.115 It set aside the decision but, contrary to what would “ordinarily” happen, it decided not to order Corrections to reconsider it, because they were not sure the interviewer still wished to proceed, there had been a number of material changes and a fresh application for an interview could be made.116
Submissions
[70] Mr Sweeney seeks declarations that the revocation decision was unlawful. He originally sought orders setting aside the decision and reinstating the specified visitor approval but Mr Gudsell submits there is no point in seeking reinstatement now. He submits the revocation decision should be set aside. He submits Mr Sweeney has been treated disrespectfully and disdainfully by Corrections, after having reformed himself and turning his past into a strength. A declaration would be meaningful to Mr Sweeney. Its essential purpose is vindication of Mr Sweeney’s rights. Mr Gudsell submits Corrections’ process was completely unacceptable and the decision made
112 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [1].
113 Compare Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]– [61]; and Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48].
114 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
115 Taylor v Chief Executive of the Department of Corrections, above n 107.
116 At [108].
cannot be justified. He submits Corrections’ changes of position after the decision are not acceptable conduct from a party exercising a statutory power of decision over a person’s livelihood, and should not be condoned by the Court. Mr Sweeney seeks costs on a 2B basis.
[71] Mr Sweeney’s evidence is that the “more serious issue for me”, in bringing the proceedings, “is that of reputation, mana, spiritual well-being, depression, and the negative effects Corrections’ actions have had on my physical health”.117 He says:118
I was recovered, reformed, rehabilitated, re-joined society, yet I was still being treated as a criminal. My message had lost its power.
…
[75] This situation with [Spring Hill] and Corrections now causes me to doubt what I believed. What is it all for? I have changed my life from the ground up. I’ve alienated many members of my family and long-time friends so that I could put my old ways behind me. But now, after 26 years, I still feel as though my past life is holding me back. When do I get my “certificate” which says I am no longer an inmate, or an offender? When is it that I can carry on with my life, having now done my time and paid my dues?
[72] Ms Hogan, for Corrections, submits that it would not be appropriate to grant relief, for the same reasons she submits the decision is not susceptible to judicial review. She submits any order approving Mr Sweeney as a specified visitor would undermine the Act’s paramount principle of safety and eschew Spring Hill’s current approval processes. She also submits there was a delay from April 2016 in bringing the proceedings which militates against relief. And Mr Sweeney always had an alternative remedy, to reapply for approval, which he was expressly invited by Corrections to do, twice, in 2016. She submits the circumstances in Taylor, of effluxion of time, material changes since the decision was made and the ability of a fresh application to be made, all apply here.
Should a declaration be made?
[73] The time between the revocation decision and the filing of proceedings is understandable, especially given Corrections’ misleading approach in its
117 Sweeney Affidavit at [67].
118 At [72] and [75].
correspondence with Mr Sweeney’s lawyer. It is also understandable that Mr Sweeney did not reapply for re-approval, which would likely not have been granted. And it is understandable Mr Sweeney no longer asks the Court to grant a remedy that might lead to his reinstatement. CareNZ is no longer contracted to Corrections and Mr Sweeney is no longer employed by CareNZ. The clock cannot be put back.
[74] But the courts can grant declarations to vindicate a successful plaintiff’s rights. That can have a further dimension in New Zealand. Section 1 of the English Laws Act 1858 introduced English common law to New Zealand “so far as applicable to the circumstances of the … colony”. The effect is preserved by s 5 of the Imperial Laws Application Act 1988. As Elias CJ observed in Takamore v Clarke, “[v]alues and cultural precepts important in New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction, according to their materiality in the particular case”.119 Accordingly, she said, “Māori custom according to tikanga is therefore part of the values of the New Zealand common law.120 In the same case, Tipping, McGrath and Blanchard JJ said “the common law of New Zealand requires reference to the tikanga, along with other important cultural, spiritual and religious values, and all other circumstances of the case as matters that must form part of the evaluation”.121 Similarly, in Trans-Tasman Resources Ltd v Taranaki- Whanganui Conservation Board, the Court of Appeal recently characterised tikanga as “an integral strand” and an “ingredient” of the common law of New Zealand.122
[75] The law of judicial review is New Zealand common law. Where material to a case, the Courts can, and may have an obligation to, recognise and uphold the values of tikanga Māori in applying the law of judicial review and granting remedies.
[76] Here, Mr Sweeney seeks vindication of his rights in order to uphold his mana. There is no need for involved definitions of mana to be formulated in this context. Mana in leadership, authority, influence and prestige is understood implicitly by Māori
119 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94]–[95].
120 At [94].
121 At [164] (and see [150]).
122 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [177].
and, now, by most New Zealanders.123 Upholding a successful plaintiff’s mana, to vindicate their rights as is fundamental to the rule of law, can be a good reason for New Zealand courts to make a declaration in a judicial review case.
[77] Mr Sweeney has a history of addiction, criminal offending and active gang associations. He clearly went to significant effort to reform his life. Now he dedicates himself to helping others do the same. Yet, Corrections’ decision to revoke his specified visitor approval tarred his present with his past. The decision was inconsistent with, and contrary to, the evidence on which it was made. It unjustifiably impugned his mana. Because the decision was unreasonable, it was unlawful. That justifies the Court in issuing a declaration, in order to vindicate Mr Sweeney’s rights and uphold his mana.
Result
[78] In order to uphold Mr Paul Sweeney’s mana, and vindicate his rights, I declare that the decision of the Prison Manager at the Spring Hill Correctional Facility, to revoke Mr Sweeney’s specified visitor approval, was unreasonable and therefore unlawful. I award costs to Mr Sweeney on a 2B basis.
Palmer J
123 Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 32; and Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised Edition) (Huia Publishers, Wellington, 2016) at 33.
4
16
1