WALLACE v DEPARTMENT OF CORRECTIONS [2022] NZHC 2464

WALLACE v DEPARTMENT OF CORRECTIONS [2022] NZHC 2464 [27 September 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-000579[2022] NZHC 2464BETWEEN ELETISE NATASHA WALLACE, NICOLARATU, RACHEL VINCENT, DOMINIQUECARROLL, MIHI ISABELLA BASSETT,TIPARE ROPITINI, TARIANA JONESAND LARA ATKINS, INMATES OFAROHATA WOMEN'S PRISON,WELLINGTONApplicantsAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 19 September 2022Appearances: V E Casey KC and A L Hill for ApplicantsS M Kinsler and I M C A McGlone for RespondentJudgment: 27 September 2022JUDGMENT OF GRICE J(Reasons)Introduction[1] This is an urgent application for interim order declarations to stay the proposedtransfer of a number of sentenced women prisoners presently at Arohata Women'sPrison (Arohata), near Wellington, to other women's prisons in New Zealand, pendingresolution of a substantive application for judicial review. This application is broughtby eight of those women against the Chief Executive of Ara Poutama Aotearoa | theDepartment of Corrections.1[2] The substantive application for judicial review focuses on the decisions andactions of the Chief Executive leading to the decision to transfer the women fromArohata in order to accommodate women remand prisoners at that facility. Thetransfers were to commence the day after the hearing in this matter, Tuesday 20September 2022.[3] Corrections says the facts do not support the prejudice claimed against theindividual applicants and it is not possible to know the views of the wider class ofwomen on whose behalf the claimed prejudice is asserted because they are not beforethe Court. The Chief Executive is responsible for the operation of the prison system.[4] Following the urgent hearing of the application, I dismissed the interimapplication on the evening of 19 September 2022, indicating that a reasons judgmentwould follow.BackgroundThe parties[5] The eight applicants are each sentenced prisoners currently serving theirsentences at Arohata. Arohata is one of three women's prisons in New Zealand. Theothers are Auckland Region Women's Corrections Facility (ARWCF) andChristchurch Women's Prison (CWP). There are 108 prisoners currently at Arohata,of whom 51 are sentenced prisoners. The remainder are on remand, either followingconviction or awaiting sentencing or trial.[6] The report Wāhine – E rere ana ki te pae hou set out Corrections' strategy inrelation to women for 2021–2025.2 This was launched on 28 October 2021. It is notin dispute that the majority of the sentenced prisoners at Arohata are Māori, and that1 I refer to both Ara Poutama Aotearoa | the Department of Corrections and its Chief Executive as"Corrections" for convenience.2 Ara Poutama Aotearoa | Department of Corrections Wāhine – E rere ana ki te pae hou: Womenrising above a new horizon (28 Oketopa | October 2021).the majority have drug or alcohol-related issues, have suffered family violence, havesuffered post-traumatic stress disorder (PTSD), and/or have other mental healthdisorders. The evidence also indicates that sentenced prisoners at Arohata have nothad whānau in person visits for over a year, due to prison staffing and COVID-19-related issues.Context — staffing shortages[7] On 1 September 2022, Corrections publicly announced that it was experiencingstaffing pressures across the prison system, which was affecting the provision ofservices within prisons. The Court was advised that sites under particular stress areMt Eden Corrections Facility (Mt Eden) and Spring Hill Corrections Facility (SpringHill).[8] Corrections says the significant staffing shortages have arisen over the pasttwo-and-a-half years as a result of COVID–19 and other factors, and that Correctionsis now operating at approximately 70 per cent of its full-time equivalent staff acrossthe prison system. The respondent says that a staff recruitment and retention plan hasbeen developed, but that meaningful increases in staffing levels are not expected untillate 2022 or early 2023 as a result of training lead-in times.[9] In that context Corrections says urgent steps must be taken to address staffingissues in various sites within the national system. Prisoner welfare and wellbeing arebeing impacted, and minimum entitlements and services risk being compromised,which causes undue tension. Corrections advises that the situation at the relevan sitesis being monitored closely to ensure staff and prisoner safety, the continued deliveryof minimum entitlements, and that sentences are administered in a safe, secure,humane and effective manner.[10] Over the coming months the intent is to redistribute the prison population,specifically by moving prisoners from sites under staffing pressures to prisons withhigher staffing levels. This "rebalancing" exercise is an interim measure andnecessarily must be done nationally.[11] The movements as they relate to the present proceeding involve the relocationof 14 staff currently at Arohata to Rimutaka Prison. This is said to be a critical part ofwhat is a complex plan. The movement of staff between Rimutaka and Arohata whichare close to each other, poses fewer difficulties than moving staff between otherprisonsDecision under review[12] Mr Leigh Marsh, the Deputy National Commissioner of Corrections, providedan affidavit setting out the background and the reasons for the transfers. He has nowapproved the transfer of 39 sentenced prisoners from Arohata to either CWP orARWCF in three tranches over dates in the coming weeks. On 20 September 2022, achartered aircraft was booked to fly prisoners to Christchurch who will then travel byvan to CWP. The plane then returns to fly prisoners to Auckland who will move toARWCF later that day. A number of prisoners are scheduled to transfer to CWP thisThursday, 22 September 2022, and further prisoners will transfer to CWP thefollowing week.3[13] Four of the applicants are scheduled to travel on the first flight to CWP. Oneapplicant is scheduled to travel on the final transfer flight to CWP. The remainingthree applicants, as well as a further nine women who are currently sentencedprisoners, will now remain at Arohata. They are assessed as not suitable for transferat this time due to their individual circumstances.Applicants' concerns[14] The applicants are concerned that while Corrections says that the transfers ofthe women prisoners are temporary, in fact the transfers are likely to be in place forthe long-term and Arohata will not be used for women sentenced prisoners. Therefore,the transferred prisoners can expect to complete their sentences at their transferredlocation.3 The respondent filed a memorandum dated 22 September 2022 advising the Court that there hadbeen minor changes in the transfer timeline due to technical problems with the plane.[15] The applicants set out a number of reasons as to why moving sentencedprisoners from Arohata is likely be seriously detrimental to the present applicants andto women sentenced prisoners generally both now and into the future. They say:i. it will remove them from their children and practically prevent anyfuture in person contact, probably for the full term of theirimprisonment;ii. it will harm their children by denying them in-person contact with theirmothers;iii. it will remove them further from their parents, some of whom areelderly or unwell, and practically prevent any future in person contact,probably for the full term of their imprisonment;iv. it will remove them from their wider whanau and other communitysupports;v. it will remove those applicants who are Māori and who affiliate withNorth Island iwi, further from their whenua;vi. it will disrupt their access to ACC counselling and other kinds oftherapeutic support and end existing established relationships of trustand confidence with their current providers, adversely impacting theirmental health and wellbeing, and their rehabilitation;vii. it will remove them from (or prevent them accessing) the specialgroup-based therapeutic Drug Treatment Unit (DTU) programme,adversely impacting their prospect of parole and their rehabilitation;viii. it will disrupt and potentially end their access to other rehabilitationservices with which they currently engage at Arohata, including theKowhiritanga programme;ix. it will end their access to "outside the wire" self-care units, disruptingand compromising their rehabilitation and reintegration programmes;x. it will disrupt their access to the Release to Work (RtW) programme,for which many of the applicants are already approved, with directimpact on their rehabilitation and prospects of parole;xi. it will make it practically difficult, if not impossible, for them toformulate effective release plans into Wellington or the lower NorthIsland, with direct impact on their prospects of parole;xii. it will increase the level of stress, distress and trauma experienced bythem, adversely affecting their mental health and wellbeing, and theirrehabilitation.[16] The applicants primarily pitch their case at the systemic level rather than theeffect of the transfers on the individual applicants. If Arohata were not to be availableas a prison for sentenced women, the applicants say that women serving sentences ofimprisonment now or in the future who have drug or alcohol-related issues will nolonger have the prospect of access to the DTU at Arohata and that women in the lowerNorth Island, including women who are pregnant or have babies, will not be housedin the region. This will prevent visits from their children and whānau, and removethem from their hapū, iwi and community supports.Grounds of review[17] The applicants bring their application for review on four grounds.[18] First the applicants say Corrections' decisions and actions amount to unlawfuldiscrimination on the basis of sex. Significant harm will be experienced solely bywomen wholly for the purpose of addressing staffing issues in the men's prison at alower cost than other solutions available to Corrections.[19] The second ground of review is that the decisions and actions are irrationaland/or unreasonable. The applicants say the respondent's decisions and actions willhave significant adverse impact on women and children, and Māori women andchildren in particular, that is grossly disproportionate to the respondent's objectivesand any perceived benefits, and that these are contrary to the legislation and relevantinternational obligations.[20] Thirdly, the applicants say Corrections has failed: to have regard to mandatoryrelevant considerations, in particular its own strategies and policy objectives andrelevant international obligations; to take into account the grossly disproportionateadverse impact on women and children, Māori women and children in particular; andto consider the availability of alternatives that would avoid those harms.[21] Finally, the applicants say that although Corrections is obliged to act inaccordance with the purposes of and principles guiding the corrections system as setout in the Corrections Act 2004, the decisions and actions taken are contrary to andfail to give effect to these purposes and principles, in particular as set out in s 5(1)(a)and (c) and s 6(1)(h) and (i).Orders sought[22] The applicants therefore seek the following relief:i. a declaration that the respondent's decisions and actions are unlawful;4and/or an order setting aside the respondent's decisions and directingthe respondent to reconsider them;5ii. a permanent6 or interim7 injunction (or declaration to the same effect)preventing the respondent from implementing the decisions andactions; and4 First and fourth grounds of review.5 Second and third grounds of review.6 First ground of review.7 Second, third and fourth grounds of review.iii. an order in the nature of mandamus (or declaration to the same effect)to the respondent to reverse the implementation of the decisions andactions that have already occurred;8[23] The applicants say the interim orders sought are necessary to preserve theirposition of the applicants and that of other women who face serious and irreversibledetriment if the plan is implemented. The applicants say that if the decisions areimplemented before the substantive judicial review application is determined, thesubstantive proceeding will be futile as the implementation of the transfers will bepractically irreversible.Respondent's position[24] The respondent opposes the application.[25] Corrections says the framing of the interim orders sought is overly broad, asnot all women sentenced prisoners at Arohata have a position to preserve. A numbersupport the transfer.[26] The respondent also says that the factual basis of the interim application andthe substantive proceeding is incorrect. In particular, he has not decided to closeArohata for sentenced prisoners (and no such plans exist) and therefore the decisionsdo not give rise to irreversible detriment as alleged. The decisions to transfersentenced prisoners from Arohata are part of a wider, system-level rebalancingexercise which will support the health, safety, rehabilitative and reintegrative needs ofboth individuals affected as well as other sentenced prisoners.[27] The respondent also says that although the Drug Treatment Programme (DTP)will no longer occur at the DTU, the DTU is merely the venue for the delivery of theDTP and the DTPs will continue to operate at both CWP and ARWCF. The respondentsays he has not decided to close the DTU at Arohata in any event. Meanwhile, thosesentenced prisoners who remain at Arohata will continue to have access torehabilitative services, including alcohol and drug treatment services.8 All grounds of review.[28] Corrections says that the applicants' case is weak on its merits. It points to thestatutory power to transfer prisoners, which is framed very broadly under theCorrections Act. There are a variety of reasons why prisoners are routinely transferredand the power has been exercised lawfully and reasonably in the present case.[29] Corrections also submits that the orders sought by the applicants will haveserious and negative impacts on other sentenced prisoners. In particular, therespondent points to the wider context of "acute staff shortages" and the longer-termstaff recruitment and retention strategy. The respondent says the redeployment of staffand transfer of prisoners is a rebalancing exercise intended as a temporary measure torelieve pressure on the system to enable the longer-term fixes in the form of increasedstaffing levels to be implemented nationally. The respondent says the rebalancingexercise is a "critical and urgent step" to avoid conditions at other prisons deterioratingto "prison emergencies". The transfer of prisoners from Arohata, the respondent says,is a critical component in the system-wide rebalancing. To pause the process riskscompounding risks and downstream consequences for other prisoners.[30] Corrections says that because it is not the intention to close Arohata tosentenced prisoners, there may be opportunities for transferred prisoners to return, butthat will depend on their individual circumstances and their rehabilitative pathways.The timeframe will depend on the return to more sustainable staffing levels.[31] Corrections says that if there is a pause in the transfer of prisoners thecircumstances are such that staff themselves will still need to be redeployed. This willlikely lead to more restrictive conditions for prisoners at Arohata than in place at thealternative sites to which it is planning to transfer the sentenced prisoners.[32] The evidence and submissions on behalf of Corrections may be summarised asfollows:i. The rotation of 14 staff currently at Arohata to Rimutaka will enablethe transfer of up to 100 high security prisoners from Mt Eden, toreduce significant pressures there.ii. The movement of staff and transfer of prisoners involves managingnumerous interdependencies, including: the capacity of receiving sites;staff availability and willingness to move between sites; the availabilityof transport and chartered aircraft; and prisoners' individual needs, interms of the availability of programmes and support consistent withrelevant security classification and individual management plans.iii. In determining prisoners who are suitable for transfer, their individualcircumstances and needs are considered. Remand prisoners are lesssuitable for transfer because of the need to attend Court in a particularlocality and related issues.iv. Some sentenced prisoners will remain at Arohata for a number ofreasons, including that certain prisoners are close to their sentence enddates and housed in self-care units.[33] Corrections says that in determining who is suitable for transfer, the iwiaffiliations, locations of whānau, and likelihood of in-person visits have also beenconsidered.Approach to interim application[34] The applicants bring their application under s 15 of the Judicial ReviewProcedure Act 2016, which states:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.[35] Rule 30.4(1) of the High Court Rules 2016 similarly provides that in a judicialreview application, the Court may make an interim order on whatever terms andconditions the Court thinks just.[36] The approach to such an application is well established. The Supreme Courtin Minister of Fisheries v Antons Trawling Company Ltd described it in the followingterms:9Before a Court can make an interim order it must be satisfied thatthe order sought is reasonably necessary to preserve the position ofthe applicant. If that condition is satisfied the Court has a widediscretion to consider all the circumstances of the case, includingthe apparent strengths or weaknesses of the applicant's claim forreview, and all the repercussions, public and private, of grantinginterim relief.10[37] The applicants pointed to the recent summary of the approach in Kōkako LodgeTrust v Auckland Regional Public Health Service.11 In that case Moore J said:[10] While such an order may have the effect of an interim injunction,"there is no requirement to address such an application exactly as if it werefor an interim injunction".12[38] The first stage is to first consider if the applicant can establish a position thatis "necessary" to preserve. That is a threshold requirement.[39] The second stage is to then consider whether to exercise the Court's widediscretion to make an order. The overall justice position must be considered.13[40] There was some difference in opinion between counsel in relation to theappropriate lens through which the Court should view the present application.Ms Casey, for the applicants, saw the application as a wide challenge to therespondent's decisions or actions to close Arohata to sentenced women prisoners anduse it as a remand prison for women, closing the DTU, which is New Zealand's onlyDTU for women prisoners, in the process.9 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at[3].10 Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per Cooke J.11 Kōkako Lodge Trust v Auckland Regional Public Health Service [2022] NZHC 2280.12 Singh v Minister of Immigration [2009] NZCA 50 at [26], citing Carlton & United Breweries Ltdv Minister of Customs, above n 10.13 ENZA Ltd v Apple & Pear Export Permits Committee HC Te Whanganui-a-Tara | WellingtonCP266/00, 18 Tīhema | December 2000 at [17].[41] Mr Kinsler for the respondent said the approach should be more akin to adeportation case. He said given the specific provisions and process to move prisonersunder the Corrections Act, the decisions at issue must be examined at the level of eachindividual applicant. This required a specific evaluative exercise in respect of thecircumstances of each person. Any judicial review must be at an individual, notsystemic, level.[42] It is not necessary to determine the correct approach at this stage. I have heardlimited argument on the matter. However, it seems at first blush that a general judicialreview of the decisions of Corrections leading to breaches of rights of sentencedwomen prisoners as a class is not precluded. That however is a matter for furtherconsideration later.Relevant legal framework[43] The Corrections Act provides the statutory framework for the operation of theNew Zealand corrections system.[44] Section 5 of the Act describes the purpose of the corrections system as follows:5 Purpose of corrections system(1) The purpose of the corrections system is to improve public safety andcontribute to the maintenance of a just society by—(a) ensuring that the community-based sentences, sentences of homedetention, and custodial sentences and related orders that areimposed by the courts and the New Zealand Parole Board areadministered in a safe, secure, humane, and effective manner; and(b) providing for corrections facilities to be operated in accordancewith rules set out in this Act and regulations made under this Actthat are based, amongst other matters, on the United NationsStandard Minimum Rules for the Treatment of Prisoners; and(c) assisting in the rehabilitation of offenders and their reintegrationinto the community, where appropriate, and so far as is reasonableand practicable in the circumstances and within the resourcesavailable, through the provision of programmes and otherinterventions; and(d) providing information to the courts and the New Zealand ParoleBoard to assist them in decision-making.[45] Section 6 provides the guiding principles of the corrections system as follows:6 Principles guiding corrections system(1) The principles that guide the operation of the corrections system arethat—(a) the maintenance of public safety is the paramount considerationin decisions about the management of persons under control orsupervision:(b) victims' interests must be considered in decisions related to themanagement 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, whereappropriate and to the extent practicable within the resourcesavailable, be taken into account—(i) in developing and providing rehabilitative programmes andother interventions intended to effectively assist therehabilitation and reintegration of offenders into thecommunity; and(ii) in sentence planning and management of offenders:(d) offenders must, where appropriate and so far as is reasonable andpracticable in the circumstances, be provided with access to anyprocess designed to promote restorative justice between offendersand victims:(e) an offender's family must, so far as is reasonable and practicablein the circumstances and within the resources available, berecognised and involved in—(i) decisions related to sentence planning and management, andthe rehabilitation and reintegration of the offender into thecommunity; and(ii) planning for participation by the offender in programmes,services, and activities in the course of his or her sentence:(f) the corrections system must ensure the fair treatment of personsunder control or supervision by—(i) providing those persons with information about the rules,obligations, and entitlements that affect them; and(ii) ensuring that decisions about those persons are taken in a fairand reasonable way and that those persons have access to aneffective complaints procedure:(g) sentences and orders must not be administered more restrictivelythan is reasonably necessary to ensure the maintenance of the lawand the safety of the public, corrections staff, and persons undercontrol or supervision:(h) offenders must, so far as is reasonable and practicable in thecircumstances within the resources available, be given access toactivities that may contribute to their rehabilitation andreintegration into the community:(i) contact between prisoners and their families must be encouragedand supported, so far as is reasonable and practicable and withinthe resources available, and to the extent that this contact isconsistent with the maintenance of safety and securityrequirements.[46] Persons who exercise powers and duties under the Act must take into accountthe principles set out above that are applicable so far as is practicable in thecircumstances.14[47] The Chief Executive has the powers and functions relating to ensuring that thecorrections system operates in accordance with the purposes set out in s 5 and theprinciples set out in s 6, and under s 8(1)(b), of ensuring the safe custody and welfareof prisoners.15[48] Under s 53, the Chief Executive also has the power to direct the transfer of aprisoner from one prison to any other prison for various reasons listed in s 54. Onesuch listed reason is "to enable effective management of the national prisonermuster".16[49] The considerations the Chief Executive must, as far as is reasonablypracticable, have regard to when considering whether to transfer a prisoner, orconsidering how a transfer is to be effected, are:17(a) the desirability of providing the least restrictive environment forthe prisoner that is consistent with the maintenance of publicsafety and the safety of staff members and other prisoners; and(b) the need to facilitate the rehabilitation and reintegration of theprisoner into the community, taking into account the availabilityand location of appropriate services and programmes that willcontribute to the achievement of those objectives; and(c) the desirability of ensuring that the prisoner is detained at a14 Corrections Act 2004, s 6(2).15 Section 8(1)(a).16 Section 54(3)(b).17 Section 54(4).location as close as is practicable to his or her family.[50] If a transfer is to occur, the prisoner to be transferred must be informed of theimpending transfer, and the destination, with at least seven days' notice, and be givena reasonable opportunity to inform their family.18 This does not apply, however, if thetransfer is being made to allow for the effective management of the national prisonermuster.19[51] Also, of relevance is the ability of the Chief Executive to declare a "prisonemergency" under s 179D. This is defined as an emergency: (a) affecting the safetyor health of the prisoners or any class or group of prisoners, or the security of theprison; and (b) in respect of which the chief executive reasonably believes that thecorrections system is no longer able to fulfil its purpose in s 5(1)(a) in relation to theprison or prisoners affected.20 Under s 179D(1), if the Chief Executive determines aprison emergency exists, they must notify the Minister within seven days. So far no"prison emergency" has been declared.[52] The applicants also point to a number of relevant documents from Corrections,including its strategy in relation to women for 2021–2025,21 and its general strategydocument for 2019–2024.22 They also point to the United Nations Convention on theRights of the Child (UNCROC)23 as well as the United Nations Rules for the Treatmentof Women Prisoners and Non-custodial Measures for Women Offenders, known as theBangkok Rules.2418 Section 55(1).19 Section 55(2)(d).20 Section 179C definition of "prison emergency".21 Ara Poutama Aotearoa | Department of Corrections Wāhine, above n 2.22 Ara Poutama Aotearoa | Department of Corrections Hōkai Rangi: Ara Poutama Aotearoa Strategy| 2019–2024 (Ākuhata | August 2019).23 United Nations Convention on the Rights of the Child, 1577 UNTS 3 (signed 20 November 1989,entered into force 2 September 1990).24 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures forWomen Offenders (the Bangkok Rules) GA Res 65/229 (2010).Discussion[53] I now turn to consider whether the applicants have a position to preserve beforeevaluating the strength of the applicants' case and the public and private repercussionsof granting relief.First stage — position to preserve[54] The necessity to preserve the applicant's position is the statutory threshold.There must be a "necessity", as opposed to a "simple desire to preserve a position ifpossible".25 However, "preservation" is not to be interpreted so narrowly that it meansonly preserving the status quo.26 It is necessary to look at what is being sought by wayof substantive relief to see whether there is a position which should be preserved.27 Ifthere is no arguable or justiciable issue raised, there is no position to preserve.28[55] Ms Casey says that if the decisions are implemented, the prisoners will betransferred and the staff reallocated elsewhere. The position will then be practicallyirreversible and the substantive proceedings will be futile.[56] Mr Kinsler, for the respondent, accepts that those women scheduled to betransferred from Arohata before the substantive application for review is determinedhave a position to preserve for interim relief purposes. However, he submits this isnot necessarily the case for other sentenced prisoners affected by the transfers andthere is no general prejudice to women sentenced prisoners at Arohata as a class. Somewill benefit, because the proposed transfers will enable them to be closer to theirwhānau or to access services not available to them at Arohata.[57] Over the past few days, it has been decided that at least three of the applicantswill not be moved due to personal factors. However, on an individual basis given theconcession of Corrections I accept for the purposes of the interim application that the25 Bishop v Central Regional Health Authority HC Te Papaioea | Palmerston North M47/97, 11 Hūrae| July 1997.26 Kōkako Lodge Trust v Auckland Regional Public Health Service, above n 11, at [13], citing NgaKaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107 at [58].27 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).28 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55(HC), upheld on appeal in Whale Watch Kaikoura Ltd v Transport Accident InvestigationCommission CA87/97, 12 Mei | May 1997.applicants who will be transferred have a position to preserve — namely to remain inArohata.[58] Taking a broader view of case as being the effective closure of Arohata forsentenced prisoners, it is less clear whether there is a relevant position which isnecessary to preserve. The respondent says that the arrangements are temporary todeal with the present exigencies and there is no planned closure.[59] However, for the purposes of this application I accept there is a positionnecessary to preserve.Second stage — discretion to grant relief[60] I now move to consider the second stage. That is whether or not to exercisemy discretion under s 16 of the Judicial Review Procedure Act to grant interim reliefor not. I first consider the strength of the applicants' case, in respect of each groundof review, before turning to consider the public and private repercussions of grantingrelief.Strength of the applicants' case[61] As noted, the applicants raise four grounds of review. I now consider each inturn.First ground of review — discrimination on the basis of sex[62] The applicants say the respondent's decisions and actions amount to unlawfuldiscrimination on the basis of sex. They say the respondent proposes to causesignificant harm, which will be experienced solely by women, and which reflectshistoric and contemporary disregard for the interests of women prisoners, solely forthe purpose of addressing staffing issues in the men's prison at a lower cost than othersolutions available to him.[63] Freedom from discrimination is affirmed by s 19 of the New Zealand Bill ofRights Act 1990 (NZBORA). The principles to be applied in respect of unlawfuldiscrimination under this section are well-established and non-contentious. Thetwo-stage test is as follows:29i. first, there has to have been differential treatment or effects betweentwo groups in comparable situations on the basis of a prohibitedground; andii. second, that different treatment had to have resulted in materialdisadvantage to the group differentiated against.[64] The prohibited grounds of discrimination are provided in the Human RightsAct 1993. Section 21(1)(a) lists sex as a prohibited ground of discrimination.[65] The applicants say that with very few exceptions all sentenced prisonerscurrently in Arohata will be transferred out of the region regardless of theircircumstances, and women sentenced in the future will be placed either inChristchurch or Auckland, regardless of family links in the lower North Island. Incontrast, transfers between the men's prisons will represent only a small portion ofeach prison's population, which means that individual circumstances can be taken intoaccount and transfers can be limited to those men whose current circumstances willnot be unduly negatively impacted by transferring.[66] The applicants say the proposed actions demonstrate different treatment on thebasis of sex resulting in material disadvantage to women. Illustrations given are:i. women with children and wider whānau in the lower North Island willbe permanently separated from them during the term of their sentence,while men with family links that would be disrupted by transfer out oftheir region have the opportunity to (and strong grounds to) remain intheir current placement;29 Child Poverty Action Group Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729 at[43], citing Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55] and[109].ii. women whose rehabilitation programmes, parole prospects andcommunity supports, health and mental health care would be adverselyimpacted and placed at risk by a transfer will be required to transfer,while men in a similar situation have the opportunity to (and stronggrounds to) remain in their current placement;iii. women from and with family links to the lower North Island who arein future sentenced to prison will not be housed in the region and willbe effectively denied visits from children and wider whanau, while menin a similar situation will be able to be housed in the region, and be ableto have in-person visits to maintain family connections; andiv. sentenced women prisoners with drug and alcohol dependency issueswill have no access to the DTP for an indefinite period (unless and untilCorrections re-establishes the programme), with consequent negativeimpact on their rehabilitation and prospects of parole, while men in asimilar position will retain unchanged access to the four DTPs currentlyoperating in the men's prisons.[67] The applicants submit that a prima facie case of discrimination is establishedhere, based on this analysis of uncontested facts. Further, they such discrimination isnot justified in accordance with s 5 of the NZBORA as "demonstrably justified in afree and democratic society". This would of course render such differential treatment,while prima facie discriminatory, not unlawful. The applicants say that there is noevidence that satisfies any of the requirements for a demonstrably justifiedinfringement as stipulated by Tipping J in R v Hansen, namely:30i. Does the limiting measure serve a purpose sufficiently important tojustify curtailment of the right or freedom?ii. Is the limiting measure rationally connected with its purpose?30 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104].iii. Does the limiting measure impair the right or freedom no more than isreasonably necessary for sufficient achievement of its purpose?iv. Is the limit in due proportion to the importance of the objective?[68] Corrections responds that the relevant decisions to transfer did not occurbecause Arohata is a woman's prison per se but rather as part of a wider plan involvingnumerous movements of both staff and prisoners both men and women. Therespondent says there is no realistic comparator.[69] Mr Kinsler for the respondent submits that other alternatives were consideredand discarded, and that specific prejudice was not connected to the decisions.Mr Marsh affirmed in his affidavit that other options had been considered but "thesewere not feasible."31Second ground of review — irrationality/unreasonableness[70] The applicants also say that the respondent's decisions and actions areirrational and/or unreasonable. According to the applicants, the respondent's decisionsand actions will have significant adverse impact on women and children, and Māoriwomen and children in particular, that is grossly disproportionate to the respondent'sobjectives and any perceived benefits.[71] The applicants submit these impacts are contrary to the objectives, policies andinternational obligations relevant to the prison system, and therefore the decisions andactions of the respondent to pursue its present plan is irrational and/or unreasonable.Third ground of review — relevant considerations[72] The third ground of review is that the respondent failed to have regard tomandatory relevant considerations, in particular its own strategies and policyobjectives and relevant international obligations, as well as the grosslydisproportionate adverse impact on women and children, and on Māori women and31 Affidavit of Mr Leigh Marsh, 19 September 2022, at [21].children in particular, and that the respondent has failed to consider the availability ofalternatives that would avoid those harms.[73] The applicants point in this respect to art 3(1) of the UNCROC, which providesthat "[i]n all actions concerning children the best interests of the child shall be aprimary consideration." Glazebrook J in the Court of Appeal commented that thisrequired the relevant statute to be interpreted accordingly. Her Honour said:32 As a matter of law, the statute must be interpreted consistently with thesubstantive requirement to take the best interests of the child into account asa primary consideration.[74] The applicants say that documents obtained under the Official Information Act1982, which Corrections had identified as the key papers used in making the decisions,demonstrated that there has been no such consideration here.[75] The Chief Executive has powers under the Act to transfer prisoners betweenprisons. Those powers are in play when considering whether the respondent hadregard to mandatory relevant considerations. As Lang J noted in Reekie vAttorney-General:33 there is no requirement in the Act or Regulations that a Prison Managermust consult or seek input from a prisoner before a decision is made to effecta transfer to another prison. Nor is there any requirement that prisoners beconsulted about the manner in which they are conveyed from prison to prison.Obligations of that kind would obviously be wholly impracticable given thenumber of prisoners Corrections is required to transfer between prisons for avariety of reasons on a daily basis. Those responsible for making suchdecisions therefore have a considerable degree of discretion so long as thetransfer is being made in accordance with s 54(1) to (3) of the Act and takinginto account the matters set out in s 54(4).[76] While there are more detailed arguments to be made here, at this interim stage,for the purposes of this application the evidence of Mr Marsh supports the fact that therespondent, via his delegate and teams, had regard to the statutory mandatory relevantconsiderations when making the transfer decisions in the circumstances faced by theprison system at present. His evidence set out the circumstances which presentedsafety risks, the need to move staff and prisoners to manage that risk in the short term32 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [88] (emphasis in original).33 Reekie v Attorney-General [2019] NZHC 1697 at [76].and the complexities involved in the "network rebalancing", a logistical exerciseresponding to circumstances which are evolving.34 Mr Marsh also described themanner in which individual situations were considered and that the women who wereto be transferred had been provided with written notice. He also outlined the mannerin which the transfer decisions were made and that there had been consideration ofwhānau connections among other factors. Mr Marsh noted that other considerationshad been rehabilitation, parole, medical and support needs.Fourth ground of review — purpose and principles[77] It is not disputed that the respondent is obliged to act in accordance with thepurposes and principles of the Corrections Act. The applicants say Corrections'decisions and actions are contrary to and fail to give effect to these purposes andprinciples, in particular those in s 5(1)(a) and (c) and s 6(1)(h) and (i).[78] I have set those out earlier. Section 5(1) provides relevantly here that thepurpose of the corrections system is to improve public safety and contribute to themaintenance of a just society by ensuring that sentences are administered in a safe,secure, humane, and effective manner; and assisting in the rehabilitation of offendersand their reintegration into the community, where appropriate, and so far as isreasonable and practicable in the circumstances and within the resources available,through the provision of programmes and other interventions.35[79] Section 6(1) provides that principles guiding the operation of the correctionssystem include relevantly here that offenders must, so far as is reasonable andpracticable in the circumstances within the resources available, be given access toactivities that may contribute to their rehabilitation and reintegration into thecommunity; and contact between prisoners and their families must be encouraged andsupported, so far as is reasonable and practicable and within the resources available,and to the extent that this contact is consistent with the maintenance of safety andsecurity requirements.34 Affidavit of Mr Marsh at [22]35 Corrections Act, s 5(1)(a) and (c).Preliminary conclusions as to the strength of the applicants' case[80] I make no definitive findings at this stage as to the strength or otherwise of theapplicants' heads of challenge. It is difficult, and arguably premature at this interimstage, to do so without having had the benefit of further evidence.[81] In particular, I note that while it appears at this interim stage and on theevidence available that the decisions made by Corrections were reasonable and weremade in accordance with the purposes and principles of the Corrections Act, furtherevidence and argument at the substantive hearing may show the case to be otherwise.[82] Insofar as I make a definitive finding, however, I merely state at this stage thatin my view the applicants' claims are arguable.Public and private repercussions[83] In this case Corrections points to critical issues which require the rebalancingin the prison system to maintain even minimum entitlements for some prisoners. Theevidence of Mr Marsh is that the movement of the women sentenced prisoners iscrucial to the present plan. That there are other prisoners who will be affected if therebalancing stalls is a factor to be taken into account at this stage.[84] Ms Casey for the applicants submits that the proposal to transfer the womensentenced prisoners starting tomorrow is harmful and incoherent, and suggestsCorrections pause so that it can properly assess whether its plans will actually achieveits goals. She pointed to options canvassed in earlier management papers.[85] The applicants submit that the effect on other prisoners at this stage has notbeen made out. In particular, there is surge staffing available from Christchurchprisons, as well as opportunities of secondments of up to one year which have beenreferred to in the management papers. The applicants suggest that Corrections' maininterest in not pursuing other available options is the cost of doing so. They submit inthis respect that the balance of convenience favours the applicants.[86] In Mr Kinsler's submissions the "rebalancing" is a complex, difficult andevolving process managed by a government agency. Mr Kinsler described the planinvolving a number of interdependencies. The situation is changing in real time.[87] The evidence is that the transfer of prisoners from Arohata is a necessarycorollary of the reallocation of staff from Arohata, which is an important componentof the plan. Not only would this suggest that there will be risks to staff and prisonersand that tensions in the prisons will be exacerbated, but it appears that staffing levelsat Arohata would likely be affected in any case, thus compromising the safety andwelfare of prisoners there.36[88] This is a case where the Court must exercise some caution before interveningin administrative or management decisions of government agencies or departmentsinvolving logistical complexities. This must particularly be so when staff and prisonersafety and possibly that of the public, may be put at risk. As the Court of Appeal putit in Taylor v Chief Executive of Department of Corrections, the Court must be carefulto avoid stepping into what are management decisions involving resource allocation.37[89] I am satisfied that the public and private repercussions of interim orders at thisstage interfering with the "rebalancing" plan could be significant. Corrections saysthat it is attempting to manage what by any view is an acute staff shortage across theprison system through the redeployment of staff and transfer of prisoners. Theevidence I have heard is that the other options Ms Casey refers to are not workable atthis stage. There could be serious and negative impacts on other prisoners if thetransfers are now prevented.[90] Overall, I consider the public repercussions together with the possible privaterepercussions relating to safety of prisoners and staff weigh significantly in favour ofdismissing the interim application.36 Affidavit of Mr Marsh at [7] and [8].37 Taylor v Chief Executive of Department of Corrections [2010] NZCA 371, [2011] NZLR 112 at[26].Summary[91] I have accepted there is a position which it is necessary to preserve.[92] In respect of the second stage, in my view the applicants' claims are arguable,although it is difficult to assess the strength of the claims at this stage.[93] However, considering all the circumstances of the case, the repercussions,public and private, of granting interim relief weigh heavily against the granting of therelief. At this stage it is not appropriate for the Court to exercise its discretion to staythe proposed transfers.Result[94] The application for interim relief is dismissed.[95] The substantive matter has been allocated an early hearing date. Counsel areto confer on an agreed timetable and file a joint memorandum in that regard withinfive days of the date of this judgment.Costs[96] Counsel should confer on costs and if orders are required any application andsubmissions should be filed within five days and any responses within a further threedays.____________________Grice JSolicitors:Victoria Casey King's CounselAmanda Hill, Barrister and SolicitorMeredith Connell, WellingtonCrown Law, Wellington