Smith v The Attorney-General [2019] NZHC 835

Smith v The Attorney-General [2019] NZHC 835 [16 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-2269[2019] NZHC 835UNDER The Judicature Amendment Act 1972 Part 30of the High Court RulesIN THE MATTER of an application for judicial reviewBETWEEN PHILLIP JOHN SMITHApplicantAND THE ATTORNEY-GENERAL ON BEHALFOF THE DEPARTMENT OFCORRECTIONSRespondent /continuedHearing: 27 and 28 September 2018; further submissions 3 and10 October 2018Counsel:Appearance:N Levy and AL Hill for applicant in CIV-2017-485-804A Todd, H Farquhar and N Fong for respondents in bothproceedingsPJ Smith (via AVL) in CIV-2016-404-2269Judgment: 16 April 2019JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 16 April 2019 at 11 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Cooper Legal, WellingtonCrown Law, WellingtonTo: PJ Smith, WellingtonIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-804UNDER Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review ofdecisions by the respondents about theapplicant's temporary release for thepurposes of employmentBETWEEN HAYDEN JOSEPH TAYLORApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSFirst RespondentSERCO NEW ZEALAND LIMITEDSecond RespondentCONTENTSIntroduction [1]Statutory background [8]The guidelines in issueThe temporary release decision [17]Temporary release circulars [19]The "release to work" circulars [20]Post-circular statistics [21]Further facts particular to Mr Taylor's case [24]Mr Smith's claimMr Smith's submissions - summary [30]Department's submissions in relation to Mr Smith - summary [36]Mr Smith's application - approach [43]Unlawful dictation – legal principles [44]Unlawful dictation – discussion [48]11 November Decision [49]Temporary release circulars [54]RTW circulars [67]Ultra vires as a stand-alone ground of review [75]Individual decisions [81]Relief on Mr Smith's claim [88]Mr Smith's application - result [95]Mr Taylor's claim [98]Mr Lightbown's decision – more detail [99]Submissions for Mr Taylor - summary [120]Department's submissions in relation to Mr Taylor - summary [123]Did Mr Lightbown decline Mr Taylor's RTW application on a blanketbasis that he was a violent offender subject to an indeterminate sentence? [128]Did Mr Lightbown fail to consider whether Mr Taylor posed an unduerisk to the community if released on RTW, and instead consider the safetyrisk more generally and/or in the context of parole? [135]Did Mr Lightbown err in taking into account the views of the ParoleBoard (which are said themselves to be based on a mistake of fact)? [138]Did Mr Lightbown err in failing to consider the view of the High Riskresponse Team or make his decision on the basis of insufficientinformation concerning risk? [145]Result and costs [154]Introduction[1] Phillip John Smith is serving a life sentence for murder. He became eligiblefor parole in 2009. To date, he has not been granted parole. In 2013, the Parole Boardrecommended he be permitted to participate in temporary removals and releases fromprison under s 62 of the Corrections Act 2004 (the Act). On 6 November 2014,Mr Smith was granted a temporary release from prison for 72 hours. That day, heboarded a flight to Chile and fled. He therefore did not return from his temporaryrelease by the due date of 9 November 2014. Mr Smith was eventually apprehendedin Brazil and deported back to New Zealand. His escape attracted significant mediaattention in New Zealand and the Department of Corrections came under publicscrutiny and criticism.[2] Mr Smith's escape caused the Department of Corrections to reconsider itspolicies about temporary releases. Through several guidelines issued in the wake ofhis escape, the availability of temporary release to prisoners more generally (i.e. notonly to Mr Smith) was curtailed for an extended period.[3] Mr Smith now applies to judicially review those guidelines.1 The essence ofhis application is that the guidelines took a "blanket" approach to applications fortemporary release and as a result, unlawfully excluded from consideration for suchrelease certain classes of prisoners statutorily entitled to be so considered. Mr Smithalso argues that some of the guidelines unlawfully restricted the purposes for whichtemporary release could be granted.[4] Mr Smith says the guidelines were thereby ultra vires the relevant empoweringprovisions in the Act and/or amounted to an unlawful dictation which fettered thediscretion of those making decisions on temporary release.1 The respondent to Mr Smith's application is the Attorney-General on behalf of the Department ofCorrections. For ease of reference, I will refer to the respondent as "the Department". TheDepartment initially sought to strike out Mr Smith's application, on the basis he lacked standingto bring it. In a judgment dated 18 July 2017, Palmer J accepted that Mr Smith has standing andaccordingly dismissed the Department's application. See Smith v Attorney-General [2017] NZHC1647.[5] Hayden Joseph Taylor also applies to review certain temporary releasedecisions, insofar as they affected him personally. Mr Taylor is serving sentences oflife imprisonment for murder and preventative detention for rape. He has participatedin several programmes while in prison, including release to work (RTW) which is atype of temporary release. At the time of Mr Smith's escape, Mr Taylor wasparticipating in RTW. In late 2014, however, he was withdrawn from RTW and laterapplications to return to RTW were declined.[6] Originally, Mr Taylor's application gave rise to issues similar to Mr Smith's,in that Mr Taylor said he was unlawfully excluded from being considered for RTW inlate 2014 as a result of the alleged blanket approach then taken to temporary release.By minute dated 4 May 2018, Churchman J allowed the two proceedings to be heardtogether on this point.2[7] As matters transpired however, the evidence filed by the Department inresponse to Mr Taylor's application demonstrates an individual, merits-based decisionwas taken in December 2014 on his continued participation in RTW. While notformally abandoning his application to the extent it is based on the alleged blanketapproach, Mr Taylor filed an amended pleading during the hearing, limiting that aspectof his claim before me to alleged specific deficiencies in the December 2014 decision-making, even if it had been made on an individualised basis.3 Despite the two sets ofproceedings not overlapping to the extent first envisaged, given this aspect of MrTaylor's claim was fully briefed and ready to be heard, it was agreed I would hear itat the same time as Mr Smith's claim.Statutory background[8] The Chief Executive of the Department is provided with specific functions andpowers by the Act.4 Among these powers and functions are that the Chief Executive2 Other aspects of Mr Taylor's application (specifically his application to judicially review SercoNew Zealand Ltd's decisions on more recent applications by Mr Taylor to go on RTW) will beheard at a later date.3 As a result, Mr Taylor's amended pleading seeks an order quashing the 11 December 2014decision only.4 Corrections Act 2004, s 8.must ensure the corrections system operates in accordance with the purposes andprinciples of the Act,5 which are contained in ss 5 and 6 respectively.[9] Section 5 states that "[t]he purpose of the corrections system is to improvepublic safety and contribute to the maintenance of a just society". The section listsspecific means by which that purpose is to be achieved, relevantly including:(a) Ensuring that sentences are "administered in a safe, secure, humane andeffective manner";6(b) "[P]roviding for corrections facilities to be operated in accordance withrules set out in this Act and regulations made under this Act ";7 and(c) "[A]ssisting in the rehabilitation of offenders and their reintegrationinto the community, where appropriate, and so far as is reasonable andpracticable in the circumstances and within the resources available,through the provision of programmes and other interventions".8[10] The principles of the Act, "that guide the operation of the corrections system",are couched in greater specificity than the above purposes.9 The Chief Executive's"paramount consideration" is "the maintenance of public safety".10 Other principleslisted in the Act, as far as they are relevant in this case, include:(a) That "the corrections system must ensure the fair treatment of personsunder control or supervision".11 One way in which it must do so is by"ensuring that decisions about those persons are taken in a fair andreasonable way";125 Section 8(1)(a).6 Section 5(1)(a).7 Section 5(1)(b).8 Section 5(1)(c)9 Section 6(1).10 Section 6(1)(a).11 Section 6(1)(f).12 Section 6(1)(f)(ii).(b) That "sentences and orders must not be administered more restrictivelythan is reasonably necessary to ensure the maintenance of the law andthe safety of the public, corrections staff, and persons under control orsupervision";13 and(c) The provision of "access to activities that may contribute to" anoffender's "rehabilitation and reintegration into the community", butonly "so far as is reasonable and practicable in the circumstances withinthe resources available".14[11] Another of the powers and functions entrusted to the Chief Executive under s 8of the Act is "exercising the powers conferred by section 62 (which relates to thetemporary release or removal of prisoners)".15 Given its centrality to the presentproceedings, it is worthwhile setting out s 62 in full:1662 Temporary release from custody or temporary removal fromprison(1) This section applies to every prisoner who is a member of a class ofprisoners specified in regulations made under this Act as a class ofprisoners who may be—(a) temporarily released from custody under this section; or(b) temporarily removed from prison under this section whileremaining in custody under the control or supervision of anofficer, staff member, or probation officer during the periodof removal.(2) The chief executive may give authority for the temporary release fromcustody or temporary removal from prison of a prisoner to whom thissection applies—(a) for any purpose specified in regulations made under this Actthat the chief executive considers will facilitate theachievement of 1 or more of the following objectives:(i) the rehabilitation of the prisoner and his or hersuccessful reintegration into the community (whether13 Section 6(1)(g).14 Section 6(1)(h).15 Section 8(1)(d).16 Temporary release and temporary removal are different. Temporary release involves a temporaryrelease from custody. Temporary removal is more restrictive, and involves the temporary removalfrom prison but remaining, as the section notes, "in custody under the control or supervision" ofDepartment personnel during the period of removal.through release to work (including self-employment),to attend programmes, or otherwise):(ii) the compassionate or humane treatment of theprisoner or his or her family:(iii) furthering the interests of justice; or(b) in any circumstances that, in the opinion of the chiefexecutive, are exceptional and that will facilitate theachievement of 1 or more of the objectives described inparagraph (a).(3) In exercising the powers conferred by subsection (2), the chiefexecutive must consider—(a) whether the release or removal of the prisoner might pose anundue risk to the safety of the community while the prisoneris outside the prison:(b) the extent to which the prisoner should be supervised ormonitored while outside the prison:(c) the benefits to the prisoner and the community of removal orrelease in facilitating the reintegration of the prisoner into thecommunity:(d) whether removal or release would undermine the integrity ofany sentence being served by the prisoner.[12] Those matters set out at s 62(3) are accordingly mandatory relevantconsiderations to be taken into account in the exercise of the discretionary power toauthorise temporary release.[13] The Chief Executive delegates the authority to make decisions relating totemporary release or removal under s 62 to appropriate individuals within theDepartment.17 The Chief Executive is also empowered by s 8(1)(j) of the Act to issue"guidelines" under s 196(1)(a) of the Act on the exercise of powers under the Act.18There is no dispute this includes issuing guidelines on the power to authorisetemporary release or removal under s 62.17 Pursuant to s 41 of the State Sector Act 1988. The powers held by the Chief Executive in relationto temporary release are not among the list of non-delegable powers and functions in s 10 of theCorrections Act 2004. Those with delegated authority to make decisions on temporary releasesor removals under s 62 of the Act are set out in the "Delegations Table – Schedule 4: OffenderManagement Prisons, Rehabilitation and Employment."18 Pursuant to ss 8(1)(j) and 196(1)(b), the Chief Executive is also empowered to issue "instructionsor guidelines" relating to procedures to be followed or standards to be met in relation to certainmatters.[14] The Corrections Regulations 2005 (the Regulations) are the relevant"regulations" specified in s 62(1) and (2) of the Act. At the relevant time,19 reg 26provided for the classes of prisoners who were eligible for consideration for temporaryrelease, while reg 27 provided for the purposes for which eligible prisoners may betemporarily released. Again, these regulations are of central relevance to theseproceedings and are accordingly set out below.[15] Regulation 26 relevantly provides as follows:26 Classes of prisoners who may be temporarily released undersection 62(1) The following classes of prisoners may be temporarily released undersection 62 of the Act:(a) every prisoner (other than a service prisoner) sentenced toimprisonment for a term exceeding 24 months who has reached his orher parole eligibility date under section 20 of the Parole Act 2002;and-(i) who is assigned a security classification that reflectsthe lowest level of risk category; or(ii) who is assigned a security classification that reflectsthe second or third lowest level of risk category and who hasbeen directed by the Parole Board to be released on paroleunder section 28 of the Parole Act 2002:(b) every prisoner (other than a service prisoner) sentenced toimprisonment for a term of 24 months or less who is assigned asecurity classification that reflects the lowest level of risk category:(c) every prisoner (other than a service prisoner) who, before 1July 2002, was sentenced to imprisonment for a serious violentoffence who-(i) is not eligible for parole but whose formal release dateis within the next 12 months; and(ii) is assigned a security classification that reflects thelowest level of risk category:(d) every prisoner whose release is required for the purposespecified in regulation 29(2)(b) and who consents to being releasedfor that purpose:19 Regulation 27 was revoked on 17 September 2017 by the Corrections Amendment Regulations(No 2) 2017, but was in force at the time the relevant guidelines issued.(e) every prisoner whose release is required for the purposespecified in regulation 29(2)(c).[16] The purposes for such releases were stated in reg 27 as follows:27 Purposes for which eligible prisoners may be temporarily releasedunder section 62A prisoner who is eligible to be temporarily released under section 62 may betemporarily released for any of the following purposes that the chief executiveconsiders will facilitate 1 or more of the objectives specified in section62(2)(a) of the Act:(a) to visit the prisoner's family:(b) to undertake paid employment (including self-employment):(c) to seek employment (whether directly with a prospective employeror through an agency) or to receive vocational or other training:(d) to attend any agency for assessment or treatment of the prisoner'srehabilitative or reintegrative needs:(e) if the prisoner's release is imminent, to visit a department of Stateor other agency to make arrangements for the prisoner's release:(f) to visit a community facility for educational, cultural, orrecreational purposes:(g) to visit a member of the prisoner's family, or a close friend who is-(i) seriously ill; or(ii) incapacitated:(ga) to accompany a seriously ill member of the prisoner's family tomedical treatment, and support the family member at the treatment:(h) to attend the funeral, tangi, or subsequent ceremonialcommemoration of the death (for example, the unveiling of aheadstone) of a family member or close friend:(i) to attend a religious service or a religious activity:(j) to attend a restorative justice conference:(k) to attend a family group conference:(l) to obtain, whether by appointment or otherwise, medical, surgical,or dental assessment or treatment that is not available in the prison:(m) to be admitted to hospital for treatment:(n) to have a tattoo removed (including any pre-procedureassessments and post-procedure checks):(o) to enable the prisoner to give birth to a child, or attend the birth ofthe prisoner's own child, or visit the prisoner's own newborn child:(p) if the prisoner's release is imminent, to obtain from family orfriends personal property where this cannot be done by other meansand the property is reasonably required before the prisoner's release:(q) if the prisoner's release is imminent, to purchase clothing which isreasonably required before the prisoner's release:(r) to be involved in a community project or other reintegrativeactivity in association with staff or members of service clubs, religionsor cultural groups, or other community organisations:(s) to participate in an outdoor pursuit activity:(t) to participate in a sports team, or play sport as a member of a clubor team participating in a local competition, or attend a sporting eventas a spectator:(u) to assist the Police in relation to the prevention, investigation, anddetection of offences:(v) to enable the Police to exercise powers under section 32 or 33 ofthe Policing Act 2008.The guidelines in issueThe temporary release decision[17] Two days after Mr Smith's failure to return from temporary release, on11 November 2014, the Chief Executive sent an email to relevant Department staff inwhich he communicated his decision to provisionally suspend the temporary releaseof prisoners while a review of processes and policies was undertaken (the"11 November Decision"). The email addressed the availability of and changed thedelegation level for decisions about temporary release. The text of the email is set outin full:I want to update you on Philip John Smith, a prisoner from Spring HillCorrections Facility, who absconded from home leave last Thursday. You willall have been following this closely and be aware that he has fled overseas.This is a very serious incident. It should never have happened and I want youto know what steps we are taking to understand how it happened and toprevent it happening again.Earlier today, I spoke to our Regional Commissioners and we have agreed tocease the temporary release of prisoners. This will be in force for at least thenext two weeks, while we complete a comprehensive review of our processesand look at where we need to tighten our policies.The only exception will be prisoners involved in Release to Work and thosereleased to supervised programmes, such as the Salisbury Street Foundation.For prisoners who have special circumstances, e.g. a family bereavement ortangi, escorted temporary removal is still available as an option.The delegation for release has been lifted to Regional Commissioner. If youhave a prisoner with exceptional circumstances who still requires temporaryrelease, e.g. compassionate grounds, this must be approved by your RegionalCommissioner.Our National Commissioner and Regional Commissioners have alreadyintroduced temporary changes and it is likely that further modifications to ourprocesses will be made over the next week.Chief Custodial Officer Neil Beales has begun an operational review into thisspecific incident, and more generally into the temporary release process. Thisreview and wider investigations that are underway will answer the questionsbeing raised, including why Phillip John Smith was allowed out, how heobtained a passport and how he managed to get out of the country.I want these answers too, but for now; this has happened; it can't be undone,so we need to fix it and learn from it.[18] The effect of the 11 November Decision was accordingly that:(a) Subject to certain exceptions, all temporary releases were suspended.Such suspension was said to be for at least two weeks while acomprehensive review of the Department's processes was carried out;(b) Exceptions to the suspension were:(i) Prisoners involved in RTW programmes;(ii) Prisoners released to supervised programmes; and(iii) Exceptional circumstances, though no further guidance wasgiven around this; and(c) The delegation for temporary release under exceptional circumstanceswas lifted to Regional Commissioner level.Temporary release circulars[19] Following the 11 November Decision, the National Commissioner issuedguidelines under s 196 of the Act (in the form of circulars) that also affected temporaryrelease.20 Circulars (2014/02, 2014/02A and 2014/02B) were issued on 12 November2014, 14 November 2014 and 3 February 2015 respectively (the "temporary releasecirculars").21 The text of the first circular is set out in full in Schedule 1 to thisjudgment. The key aspects of the circular are reproduced below:On 11 November 2014 the Chief Executive, in consultation with the Nationaland Regional Commissioners, directed all temporary release of prisoners willcease pending a comprehensive review of the temporary release processes andpolicies.The only exceptions will be approval for prisoners involved in Release toWork and those related to supervised programmes, or when exceptionalcircumstances apply. For prisoners who have special circumstances, e.g. afamily bereavement or tangi, escorted temporary removal is still available asan option.Exceptional Circumstances Eligibility CriteriaPrisoners may only be considered for temporary release in exceptionalcircumstances if they have a minimum security classification and are servinga sentence of:• 24 months or less, or• More than 24 months and the NZ Parole Board has specified a releasedate.For prisoners who do not meet the exceptional circumstance criteria the prisonmanager must consider the option of the prisoner being escorted (temporarilyremoval).Authority to approve temporary release in Exceptional CircumstancesThe delegation for temporary release for prisoners where exceptionalcircumstances apply has been lifted to Regional Commissioner. All prisonerswith exceptional circumstances that may require temporary release e.g.compassionate grounds, must be approved by your Regional Commissioner.Temporary releases for prisoners where there are exceptional circumstanceswill be limited to a maximum 12 hour period. If the Regional Commissionersupports a longer period they must obtain the support from the NationalCommissioner.20 Each of the guidelines was, however, described in its header as "Instructions".21 The three versions of the circular were broadly in the same terms, and the (minor) changes throughthe iterations are not relevant for present purposes.Prison Managers must review and confirm the suitability of applications fortemporary release before they are referred to the Regional Commissioner forconsideration.GPS Monitoring ConditionPrior to an application for temporary release for prisoners where exceptionalcircumstances exist is referred to the Regional Commissioner, it will benecessary for the Prison Manager to first consider if the prisoner should besubject to a condition of GPS monitoring (refer Use of GPS technology withPrisoners on Temporary Release for further information relating to GPS).Prison Managers must advise their Regional Commissioner of their reasonsfor supporting or not, the prisoner to be subject to GPS monitoring. TheRegional Commissioner may direct that a prisoner be subject to GPSmonitoring during the temporary release if they consider it necessary.The following prisoners should be subject to a condition of GPS monitoringduring their temporary release, unless the Regional Commissioner is satisfiedit is not necessary or is not practicable, in which case they should decline thetemporary release:• Child sex offenders subject to an indeterminate sentence.• Offenders subject to a finite sentence who are likely to be suitable foran Extended Supervision Order or where the Department has appliedfor such an order.• Other sexual offenders subject to an indeterminate sentence.• Violent Offenders subject to an indeterminate sentence.The "release to work" circulars[20] Specific circulars (2014/03 and 2014/03A) were also issued on 21 Novemberand 1 December 2014 respectively in relation to RTW (the "RTW circulars").22 Thefull text of the 21 November 2014 circular is set out in Schedule 2 to this judgment.Key aspects of the RTW circular included the following:Authority: These instructions constitute the Chief Executive Guidelinesissued in accordance with section 196(1)(a) of the Corrections Act 2004 forthe management of prisoners temporarily released for the purpose ofemployment under sections 62 and 63 of the Corrections Act 2004.These instructions are in addition to the instructions contained in the PrisonOperations Manual M.04.07 Release to work section and override anycontradicting instructions contained in that section.Duration: These instructions will remain in force until the Prison OperationsManual has been reviewed or the Chief Executive revokes them.22 Again, these circulars were described on their face as "Instructions" rather than "guidelines". Likethe temporary release circulars, the two versions of the RTW circulars were in very similar termsand the changes between the two are not relevant to the present applications.PurposeThese instructions specify the interim procedures to be followed byCorrections staff responsible for managing prisoners currently approved, orwho are being considered, for temporary release for the purpose ofemployment (Release to Work).BackgroundPrisoners approved for Release to Work are not included in the ChiefExecutive direction issued on 11 November 2014 that all temporary release ofprisoners will cease, unless there are exceptional circumstances, pending acomprehensive review of the temporary release processes and policies.Pending this instruction, the National Commissioner directed that all PrisonManagers should review the conditions of prisoners involved in Release toWork and assess whether the prisoner should be subject to GPS monitoringduring their temporary release, if not already specified.The location of a prisoner's employment may not be suited to the applicationof a condition of GPS monitoring during the prisoner's release. In theseinstances Prison Managers have imposed other additional monitoringrequirements (random telephones calls from the prison and increased sitevisits from Corrections Staff) and the frequency they occur.To ensure there is consistency with the management of prisoners outside thesecure perimeter, the following interim instructions, that align with theTemporary Release interim procedures (National Circular 2014 02A), willapply to all prisoners currently approved, or who are being considered, forRelease to Work.Release to Work Eligibility CriteriaPrisoners may only be considered for Release to work if they meet theeligibility criteria set out in M.04.07.01 Eligibility criteria. If there are anyconcerns that the prisoner still poses a risk to the community the applicationfor Release to Work must not be approved, in particular where the Court hasindicated a significant risk, including:• Child sex offenders subject to an indeterminate sentence.• Offenders subject to a finite sentence who are likely to be suitable foran Extended Supervision Order or where the Department has appliedfor such an order.• Other sexual offenders subject to an indeterminate sentence.• Violent offenders subject to an indeterminate sentence.• Violent/sexual offenders sentenced to a term of more than two yearswho have not addressed their offending by completing a rehabilitativeprogramme.GPS Monitoring ConditionPrior to approving the prisoner for Release to Work the Prison Manager shouldassess whether the prisoner should be subject to GPS monitoring release (referUse of GPS technology with Prisoners on Temporary Release for furtherinformation relating to GPS) during their release.If the Prison Manager does not consider it necessary for a condition of GPSmonitoring to apply during the prisoner's release they must record theirreasons on the M.04.07.Form.01 RTW application and assessment.Post-circular statistics[21] Evidence was adduced by the Department of the actual numbers of prisonersauthorised for temporary release, including for RTW, in the periods immediately priorto and following Mr Smith's escape. The statistics can be summarised in a variety ofways. Mr Smith included the following tables in his submissions, based on thestatistical evidence adduced by the Department:Temporary release numbers by sentence type – 12-11-13 to 19-10-15Offender SentenceType12-11-13to11-11-1412-11-14to19-10-1512-11-14to19-10-15%DecreaseFinite sentence (exclCSO, ESO)978 23 97.6%Finite sentence CSO 139 0 100%Finite sentence(subsequent ESO)7 0 100%Indeterminatesentence Life355 12 96.6%Indeterminatesentence PD143 2 98.6%Total 1622 37 97.7%RTW numbers by offender's sentence type – 12-11-13 to 19-10-15Offender SentenceType12-11-13to11-11-1412-11-14to19-10-1512-11-14to19-10-15%DecreaseFinite sentence (exclCSO, ESO)2673 1277 52.2%Finite sentence CSO 312 117 62.5%Finite sentence(subsequent ESO)0 0 0.0%Indeterminatesentence Life507 160 68.4%Indeterminatesentence PD157 52 66.9%Total 3649 1606 56.0%[22] The Government Inquiry report into Mr Smith's escape also records that thenumber of prisoners released to work following Mr Smith's escape to the time of thereport (August 2015) decreased from 443 to 264, and the number of "reintegrativereleases" decreased from 214 prisoners in the six months prior to Mr Smith's escapeto zero in the period following.23[23] I comment on the relevance of such statistical evidence later in this judgment.24Further facts particular to Mr Taylor's case[24] As noted earlier, Mr Taylor has participated in several programmes while inprison, including RTW. At the time of Mr Smith's escape, Mr Taylor was participatingin RTW.23 Government Inquiry into Matters Concerning the Escape of Phillip John Smith/Traynor, August2015, at [5.9.1].24 See [47] below.[25] Following Mr Smith's escape, high risk prisoners who were on the RTWprogramme were reviewed. Initially (on around 19 or 20 November 2014),Mr Lightbown, the Prison Director at Spring Hill Prison where Mr Taylor was servinghis sentence, decided Mr Taylor should remain on RTW. Following the 21 November2014 RTW circular, however, he reviewed the position in relation to prisoners servingindeterminate sentences (including Mr Taylor). Without forming a final view,Mr Lightbown decided to temporarily suspend Mr Taylor's RTW pending completionof the review.[26] An Advisory Panel was then set up at Spring Hill to consider, among otherthings, recommendations about RTW. On 4 December 2014, and after hearing fromthe Panel, Mr Lightbown decided to defer a decision about Mr Taylor's RTWapplication until 11 December 2014. Mr Taylor appeared before the Parole Board inthe intervening period (on 10 December 2014) and was declined parole.[27] The Advisory Panel at Spring Hill reconvened on 11 December 2014 andMr Taylor's RTW status was again discussed. Mr Lightbown was again the decision-maker on that day. At the conclusion of the meeting, he declined Mr Taylor'sapplication to participate again in RTW. It is this decision which is now the subjectof Mr Taylor's application (at least for the purposes of this judgment).[28] Later applications by Mr Taylor for RTW have been declined and, at least atthe time of the hearing before me, the operative decision concerning Mr Taylor'sapplication to go on RTW (which was declined) was made on 15 February 2018.[29] I address Mr Lightbown's decision of 11 December 2014 in further detail laterin this judgment, when considering Mr Taylor's challenge to that decision.Mr Smith's claimMr Smith's submissions - summary[30] Mr Smith pleads two causes of action. He says the 11 November Decision,together with the temporary release and RTW circulars, were ultra vires and/or anunlawful act of dictation — that had the unlawful effect of fettering a decision-maker'sexercise of discretion on individual applications for temporary release.[31] Mr Smith's submissions on the first cause of action address each of the11 November Decision and circulars separately. But in many respects his argumentsas to why the decision and circulars were unlawful are aligned and may be outlined inbroad terms.[32] Mr Smith argues that s 62 of the Act is clear that "every prisoner" that is amember of the class of prisoners specified in regulations may be temporarily released.The power to make such regulations rests with the Governor-General.25 Mr Smithsubmits that the 11 November Decision and the circulars issued under s 196 must bewithin the scope of this empowering legislation.26 Mr Smith accepts there is noentitlement to be granted temporary release, but submits there is an entitlement to atleast be considered. Mr Smith says when the eligibility of prisoners for release underthe regulations are compared with those under the 11 November Decision and followup circulars, many classes of prisoner eligible for consideration for temporary releaseunder reg 26 were simply excluded. Mr Smith submits that nothing in ss 8, 62, 196,200 or 202 of the Act authorised the Chief Executive to restrict the class of prisonerswho may be released under reg 26.[33] Mr Smith also submits the effect of the 11 November Decision and circularswas ultra vires the purposes of temporary release, as listed in reg 27. He argues theeffect was a blanket ban on 21 purposes for which temporary release may be approvedunder that regulation. This was, he submits, a breach of the common law principlethat subordinate legislation designed to regulate an activity cannot impose a totalprohibition on that activity.27 Even if it is the case that these decisions were necessaryor reasonable in the context of the paramount consideration of public safety, Mr Smithsays they were still required to be made intra vires. He submits that reading therelevant sections in light of the broader purposes and principles of the Act does notmake the decisions intra vires because those purposes equally include the aim of25 Corrections Act 2004, ss 200 and 202.26 Citing a decision of Gilbert J in Taylor v Manager of Auckland Prison [2012] NZHC 3591.27 Relying on Schubert v Wanganui District Council [2011] NZAR 233 (HC).prisoner reintegration and rehabilitation. He points towards evidence from theGovernment Inquiry into his escape that suggests there was no great danger to thepublic as a result of his escape and as such, submits this purpose ought not to beexaggerated.[34] Mr Smith's second cause of action rests on the principles that a general "policycannot deny the power which the law has conferred"28 and that a decision-makercannot surrender his discretion by acting under the dictation of another. Mr Smithsubmits the 11 November Decision, amplified by the circulars, was an unlawful act ofdictation, as a result of which delegates of the Chief Executive's powers simply actedunder the alleged dictation. Mr Smith says that the 11 November Decision andcirculars actually fettered the exercise of discretion can be inferred from both the termsof the 11 November Decision and the circulars themselves, and also the statisticalevidence referred to earlier.[35] Mr Smith also made submissions on relief. He accepts the matters now beingchallenged occurred some years ago and have since been replaced with a newtemporary release and RTW regime.29 He nevertheless submits that if either cause ofaction is established then the relief sought (a formal declaration of invalidity) shouldbe granted. He refers to authorities which emphasise formal declarations of invalidityare appropriate to mark a substantial breach of law. He also relies on authorities to theeffect that a declaration to inform future decision-making is especially important inthe corrections context, there being public interest in the Court addressing allegationsthat prisoners have been subject to unlawful decision-making.30Department's submissions in relation to Mr Smith - summary[36] In response to Mr Smith's claims, Ms Todd, senior counsel for the Department,submits the 11 November Decision and the subsequent circulars go hand in hand. The28 Westhaven Shellfish Ltd v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].29 On this point, Mr Smith and the Department do not agree on the duration of the suspension andcirculars, but on both views, they were replaced by a new temporary release regime in October2015 (on the Department's argument) or December 2016 (on Mr Smith's argument).30 Referring to decisions such as Taylor v Attorney-General [2013] NZHC 1659 and Smith vAttorney-General [2017] NZHC 136.latter provided guidance and elaboration that the former could not and thus they mustbe examined together.[37] The Department says Mr Smith's claims rest on the proposition that the11 November Decision and circulars which followed were unduly rigid; they dictatedhow decision-makers should exercise their discretion in a way that was impermissibleand were thus themselves unlawful. The Department states that another way of puttingthat proposition is that they were ultra vires, though says that does not add in asubstantive sense to the argument. The Department further submits that the suggestionthe 11 November Decision and/or circular were ultra vires ss 200 and 202 of the Act(which provide for the making of regulations under the Act) wrongly proceeds on thebasis the circulars in particular were, or were akin to, regulations or some other formof subordinate legislation.[38] Underlying the Department's arguments that the 11 November Decision andcirculars were intra vires and not an unlawful act of dictation is the submission thatthe effect of the decision and circulars was not the unlawful exclusion of certain classesfrom consideration for temporary release, but was the lawful deferral of the discretionto grant temporary release for certain classes (until a complete investigation had beenundertaken into Mr Smith's escape). This, it is submitted, was an entirely permissiblecourse of action — it was consistent with the Chief Executive's broad discretion toauthorise release under s 62, the mandatory considerations in exercising that decision(particularly the "paramount consideration", public safety), and it occurred through anauthorised use of the s 196 guidelines procedure and the Chief Executive's ability todelegate decisions.[39] The Department submits this deferral made no attempt to reverse or contradictlegislative or regulatory classes or purposes, and the exceptions identified in thecirculars meant temporary release remained available in appropriate circumstances.Because of that availability, the Department submits the scheme was still able tofacilitate the rehabilitative and reintegrative purposes of temporary releases.[40] The Department takes two positions on issues of relief. First, even if the causesof action are made out, its position is that relief should not be granted. Second, if theCourt took a contrary position, the Department submits that any declarations can onlyrelate to the 11 November Decision and circulars themselves, and not to any of theindividual decisions made in respect of temporary release during the period in whichthe decision and/or circulars were active.[41] On the first of these points, the Department submits relief must be of potentialpractical value. It says there is no live controversy between the parties now, so anydeclaration would be of limited utility. That is because this was a deferral of aspectsof the exercise of power under s 62 of the Act and the scheme is no longer in force.The Department further says that the wider or precedential value of any declaration islikely to be limited, because it is highly unlikely similar circumstances will arise inthe future. Finally, it notes these issues have already been ventilated in a public forumas a result of the Government Inquiry.[42] On the second point of relief, the Department submits any declarations whichmight be made must be "appropriately constrained" so to reflect the lawfulness of thedecision and circulars themselves, but not individual decisions made in respect ofprisoners during the times of those circulars. That is for two reasons. The Departmentsays the legality of the 11 November Decision and circulars cannot be determinativeof the legality of individual decisions made under them. And declarations in publiclaw should be of practical utility and fact-specific, not academic, hypothetical andtheoretical. The Department notes that other than in the case of Mr Taylor, individualdecisions in respect of particular prisoners are not the subject of Mr Smith's pleading,the prisoners concerned are not parties to the proceedings, and the evidence is notdirected to specific decisions in any event.Mr Smith's application - approach[43] I have found it helpful first to consider whether the 11 November Decisionand circulars dictated an impermissible exercise of discretion and were thus unlawful.If the 11 November Decision and circulars dictated the exercise of discretion in a waythat was impermissible, then it follows that they were ultra vires, being beyond thepowers entrusted to the Chief Executive (and his delegates) under the Act.31 In thatsense, I accept Ms Todd's submission that whether the argument is framed as anunlawful dictation or ultra vires is a matter of terminology. Having considered thearguments in this context, I will then consider any residual points on the basis thatultra vires is also advanced by Mr Smith as a stand-alone ground for review.Unlawful dictation – legal principles[44] The 11 November Decision and circulars are analogous to policy which isissued in order to guide actions taken under the same powers more than occasionally.As the author of Judicial Review: A New Zealand Perspective observes, this is bothdesirable (to ensure consistency) and necessary (to control delegated authorities).32As such, it is well established that it is proper for decision-makers to develop policesto inform the exercise of a discretion.33[45] The relevant legal principles concerning policies issued to guide the exerciseof discretionary powers are not in dispute and can be briefly stated:(a) First, the exercise of a discretionary power calls for an "individualisedresponse"34 not "slavish adherence" to a rule.35(b) Second, the policy cannot deny the power which the law hasconferred.3631 As discussed in Matthew Smith New Zealand Judicial Review Handbook (2nd ed, ThomsonReuters, Wellington, 2016) at [67.1.1], any statutory decision or action which, for a range ofreasons, goes beyond the powers conferred by the statute or is improper can be said to be "ultravires".32 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis NZ, Wellington,2018) at [15.74]. See similar observations in Phillip A Joseph Constitutional and AdministrativeLaw in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [23.3.2(2)].33 Criminal Bar Association of New Zealand Inc v Attorney General [2013] NZCA 176 at [118]-[119].34 Bovaird v J [2008] NZCA 325 at [52].35 Hopman v Complaints Assessment Committee HC Wellington CIV-2005-485-1023, 14 February2007 at [27].36 Westhaven Shellfish Ltd v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].(c) Third, a policy must be consistent with the underlying statutorypower.37(d) Fourth, a policy may properly admit exceptions, but will unlawfullyfetter discretion where the test for departing from the policy sets the barso high so as to be an unacceptable limit on the exercise of discretion.38(e) Fifth, the public interest, or the "reasonableness" of a particularapproach, will not save a policy that is improperly cast in mandatoryterms.39(f) Sixth, if a decision-maker adopts a fixed rule of policy, it may be noanswer that it followed a practice of allowing exceptions to the rule.40(g) Finally, a policy must be based on the factors and purposes relevant tothe power and must not be unreasonable.41[46] The distinction between lawful guidance on the exercise of discretion andunlawful dictation can be a fine one.42[47] In determining whether a policy amounts to lawful guidance or impermissibledictation, the policy must be considered in light of its contents as a whole and inaccordance with the natural and ordinary meaning of the words used.43 It is to beconstrued in the context in which it was issued44 and having regard to its purpose andunderlying objective.45 Importantly in the context of the present case (given both37 Tauranga Boys College of Trustees v International Education Appeal Authority [2016] NZHC1381 at [20]; Haronga Jnr v Waitangi Tribunal [2010] NZCA 201 at [44].38 Criminal Bar Association of New Zealand Inc v Attorney General [2013] NZCA 176 at [121].39 Phillip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters,Wellington, 2014) at [23.3.2(1)].40 Attorney-General, ex rel Tilley v Wandsworth London Borough Council [1981] 1 WLR 854 at 858per Templeman LJ.41 Works Civil Construction Ltd v Accident Rehabilitation and Compensation Insurance Corporation[2001] 1 NZLR 721.42 See, for example, the divergent views of the Divisional Court and Court of Appeal referred to inRe Findlay [1985] AC 318 (HL) at 325-326; though the House of Lords was unanimous in itsconclusion that the policy in that case was lawful.43 Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 at [10].44 Carpets of Worth Ltd v Wyre Forest DC (1991) 62 P&CR 334 (CA) at 345.45 Patel v Chief Executive of Department of Labour [1997] NZAR 264 (CA) at 271.parties' reliance on statistical evidence of temporary release authorisations both beforeand after Mr Smith's escape), the interpretation of a policy is to be determined withoutreference to the way in which it may have been applied in individual cases orinferences to this effect. In Attorney General v Refugee Council of New Zealand Incthe Court of Appeal stated:46it is not appropriate, when considering the lawfulness of the instruction assuch, to be influenced by how immigration officers may have dealt withindividual cases. The lawfulness of the instruction must depend on a properconstruction of its terms rather than on inferences as to how it may have beeninterpreted by individual officers in individual cases.Unlawful dictation – discussion[48] I have reached the conclusion that the 11 November Decision was lawful, butthe circulars which followed it were not. I address each in turn.11 November Decision[49] The guidance given in the 11 November Decision must be considered as awhole, in its proper context and against the terms and purpose of the underlyingstatutory provisions.[50] Plainly Mr Smith's escape while on temporary release raised serious concernson the part of the Chief Executive and others within the Department of Corrections,until they knew just how and why the escape had occurred. Pursuant to s 62(3) of theAct, when considering temporary release, the Chief Executive and his delegates arerequired to take into account, amongst other matters, whether the release or removalof a prisoner might pose an undue risk to the safety of the community. It was notunlawful or improper, in the circumstances then facing the Chief Executive, to placesignificant weight on that factor, particularly given maintenance of public safety is theparamount consideration in decisions about the management of persons under control46 Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at [30]. Iacknowledge that in Criminal Bar Association of New Zealand Inc v Attorney General [2013]NZCA 176, the Court of Appeal did refer to and appear to place some reliance on post-policystatistical evidence. That was, however, as an illustration of the Court's view, based on the policyitself and the statutory framework, that the policy crossed the line into impermissible dictation.See [87], [110], [121]-[122] and [125].or supervision.47 Further, on its terms, the 11 November Decision did not itselfexclude certain classes of prisoners from any consideration for temporary release.While the guidance was framed as a suspension with two primary exceptions (beingprisoners on RTW and supervised programmes), as noted at [18] above, it also leftopen consideration of temporary release for eligible prisoners in "exceptionalcircumstances". In such a case, the delegation level was lifted to RegionalCommissioner (about which no issue is taken), and an example only given, namelycompassionate grounds.[51] As Lord Scarman stated in Re Findlay (a case not greatly dissimilar to thepresent):48The question, therefore, is simply: did the new policy constitute a refusal toconsider the cases of prisoners within the specified classes? The answer isclearly "no". Consideration of a case is not excluded by a policy whichprovides that exceptional circumstances or compelling reasons must be shownbecause of the weight to be attached to [factors which must be taken intoaccount by the decision-maker].[52] Accordingly, I do not consider the 11 November Decision unlawfully excludedfrom any consideration for temporary release classes of prisoners who were entitledto be so considered. In the circumstances then facing the Chief Executive, and giventhe review being undertaken, it was open to him to require exceptional circumstancesto exist before temporary release could be authorised, given the weight to be given,inter alia, to risk to the community under ss 62(3)(a) and s 6(1)(a) of the Act.[53] Further, even if the 11 November Decision was construed as a "refusal toconsider" applications by otherwise eligible prisoners, it was stated as being for a shortperiod of time only (of some two weeks). I do not consider this, in and of itself, wouldhave been an impermissible exercise of dictation on the part of the Chief Executive.In the factual and statutory context in which the decision was made and guidancegiven, a short "pause", perhaps of a few weeks, on the exercise of the discretionarypower under s 62 while the circumstances of Mr Smith's escape were examined wouldhave been a reasonable and lawful exercise of the Chief Executive's broad discretion.Indeed, not to have paused for a short period to take stock could equally have been47 Corrections Act 2004, s 6(1)(a).48 Re Findlay [1985] AC 318 (HL) at 336.criticised as unreasonable, given it was not then known what weaknesses, if any, mighthave been found in the temporary release system.Temporary release circulars[54] I consider the position changed, however, with the issuance of the furtherguidance given in the temporary release circulars commencing the following day,12 November 2014.[55] Circular 2014/02 stated that it was "in addition to the instructions" containedin the relevant section of the Prison Operations Manual, which referred back to thevarious classes of prisoners set out in reg 26 to be eligible for consideration fortemporary release.49 Circular 2014/02 stated that it applied "over any contradictinginstructions contained in that section" of the Prison Operations Manual. On its face,therefore, the circular did purport to "override" the content of the relevant section ofthe Prison Operations Manual, which included reference to reg 26 and those classesof prisoners eligible to be considered for temporary release.[56] The circular set out three exceptions to the suspension of temporary release(namely prisoners on RTW, on supervised programmes and exceptionalcircumstances). The purpose of the circular was stated to be "to provide interimguidance to Corrections staff when temporary release is being considered for aprisoner whose circumstances are exceptional". As noted at [18] above, the ChiefExecutive's email of the previous day had provided for an exceptional circumstancesexception, though gave no guidance around how that would be applied.[57] The 12 November 2014 circular stated that "[p]risoners may only beconsidered for temporary release in exceptional circumstances" if they fell within aparticular class. Importantly, that class was narrower than the class of prisonerseligible to be considered for temporary release under reg 26. In this way, theexceptional circumstances exception in this case is different to that in Findlay, whichapplied to all prisoners eligible for parole under the relevant statutory provisions. Asa consequence of circular 2014/02, prisoners who were eligible for temporary release49 Section M04.06.01 of the Prison Operations Manual.under reg 26, but did not fall within the circular's "eligibility criteria" for exceptionalcircumstances, or were not involved in RTW or supervised programmes, wereexcluded from any consideration for release.[58] Recognising this, the Department's submission is, as noted, that in such cases,the exercise of the discretion was only deferred, rather than there being a refusal toexercise the discretion (or a direction that was inconsistent with the underlyinglegislation). I disagree. While as explained earlier, a short period of "deferral" couldhave been appropriate, the circular was open ended.[59] I interpolate to note there is a dispute as to how long the temporary releasecirculars were in force. I do not consider that directly relevant, however, to theirlawfulness. As noted above, the lawfulness of a policy is to be considered on the basisof its plain and ordinary meaning, in the context in which it was and having regard toits purpose and underlying objective. The actual (rather than stated) duration of acircular or similar policy does not assist or bear any direct light on those matters.50For example, a policy that is said to be in place for, say, three years, or issued on anopen-ended basis, might be revoked two weeks later. That would not make the policylawful if it had otherwise been unlawful.51[60] Given the point was argued however, and for completeness, I accept theDepartment's submission that the position changed as of 19 October 2015 when thenew temporary release regime came into being. Mr Smith's position that thetemporary release circulars remained in force until December 2016 relies on areference to circular 2014/02 remaining in the Schedule 4 delegations table until thatdate. The evidence before me, however, confirms that updated sections of the PrisonOperations Manual on temporary release were issued on 19 October 2015. A frontlinearticle was sent to all staff on the same day which confirmed the Prison OperationsManual had been updated in that way, as well as confirming the circulars wererevoked. I am therefore satisfied that despite the "rogue" reference to circular 2014/0250 This is similar to the Court of Appeal eschewing reliance on post policy statistics in Attorney-General v Refugee Council [2003] 2 NZLR 577 (CA).51 The duration may be relevant, however, to whether relief ought to be granted.remaining in the delegations table, the substantive position had in fact changed by19 October 2015.[61] The point remains, however, that irrespective of whether the Department orMr Smith is right on the duration point, the temporary release circulars were in forcefor a substantial period of time. The Government Inquiry report, issued in August2015, described it as an "extended curtailment" which was "unfair to scores ofprisoners".52 To the extent the actual duration and post-circular statistics have anyrelevance, they confirm the effect the circulars had on actual temporary releasedecision-making over a not insignificant period of time.[62] Turning back to why the "deferral" was an unlawful dictation, the circulars ontheir face excluded, on an open-ended basis, certain categories of prisoners who wereentitled under reg 26 to be considered for temporary release, even on an "exceptionalcircumstances" basis. In the context of Mr Smith's escape, updated guidelines whichtightened up the regime and directed particular emphasis on public safety would havebeen quite appropriate. In that context, I accept Mr Todd's submission that thecircumstances of Mr Smith's escape could and should shape how the discretion toauthorise temporary releases was exercised. Certain events will naturally affect the"risk calculus" of decisions being made under statutory discretion, and decision-makers cannot ignore that risk.53 But the circulars crossed the line, in my view, intoimpermissible dictation.54 Unlike in Findlay, the statutory regime in this caseexpressly mandated those categories of prisoners eligible for consideration fortemporary release. No such eligible prisoner was entitled to temporary release, but Iaccept Mr Smith's submission that they were at least entitled to be considered.55 Itwas not open to the Chief Executive to issue guidelines in quite concrete terms whichdirected delegated decision-makers that, in effect, their discretion could not beexercised at all in relation to those prisoners.52 Government Inquiry into Matters Concerning the Escape of Phillip John Smith/Traynor, August2015, at [5.9].53 Attorney-General v Refugee Council [2003] 2 NZLR 577 (CA) at [31].54 Criminal Bar Association of NZ Inc v Attorney-General [2013] NZCA 176 at [91].55 Dunningham J, in Ericson v Chief Executive, Department of Corrections [2015] NZHC 1157 at[22] observed that the applicant in that case had a right to apply for temporary release "and he hasa right to have that application considered".[63] Nor do I accept the Department's submission that the fact temporary removalremained available at all times ameliorated the situation. Temporary release andtemporary removal are different things; the latter involves escorted removal from theprison environment. Section 62 of the Act deals with both temporary release andtemporary removal. Regulations 26 and 27 were addressed to temporary release andregs 28 and 29 to temporary removal. Unlawful dictation in relation to temporaryrelease cannot be saved by the presence of a similar, but different, regime for removalfrom the prison environment.[64] The temporary release circulars were accordingly unlawful, in that theydirected an impermissible exercise of discretion as to the classes of prisoners eligiblefor temporary release, inconsistent with the relevant statutory regime.[65] I do not agree, however, that either the 11 November Decision or the temporaryrelease circulars were unlawful because they curtailed the purposes for whichtemporary release could be granted. It is correct that reg 27 listed some 23 purposesfor which temporary release may be granted. Neither the November Decision nor thetemporary release circulars stated that RTW or supervised programmes were the onlypurposes for which temporary release could be granted. The exceptionalcircumstances exception did not itself exclude other purposes set out in reg 27 frombeing considered, and the reference to compassionate grounds was given as anexample only.[66] I turn now to the RTW circulars.RTW circulars[67] I have also reached the conclusion that the RTW circulars were unlawful.[68] Starting with the statutory scheme, as noted, reg 26 mandates those classes ofprisoners entitled to be considered for RTW. There is no entitlement or "bias" infavour of RTW, but the statutory regime plainly recognises the potential benefits ofsuch a programme,56 mirroring the purposes and principles of the Act.5756 Section 62(3)(c).57 Sections 5(1)(c) and 6(1)(h).[69] The key aspects of the RTW circulars are set out at [20] above. Theycommenced by noting that they overrode any contradicting instructions in the relevantsection of the Prison Operations Manual.58 They directed that "[i]f there are anyconcerns that the prisoner still poses a risk to the community the application forRelease to Work must not be approved, in particular where the Court has indicatedsignificant risk, including." (emphasis added).[70] Risk is inherent in serving prisoners being released into the community.Mr Lightfoot, the Deputy Chief Executive at the Department of Corrections, states inhis affidavit that "risks inevitably exist when a prisoner is outside of the wire". TheRTW circulars accordingly, on their face, directed that if there was any concern thatsuch a risk existed, the application "must not be approved". In my view, that directiveremoved the evaluative task of assessing applications on an individual basis, balancingall mandatory relevant considerations set out in s 62(3) of the Act.[71] The position is compounded by the circulars' statement that if concerns of arisk remain, the applications must not be approved, "in particular where the Court hasindicated a significant risk, including.". The circulars go on to list particular classesof offenders. This aspect of the circular is somewhat confusing. On one view, thecircular was simply directing that a "hard look" be given to application by offendersin such classes. That would have been reasonable. The other view, however, is thatwhen coupled with the directive that where there are concerns of a risk to thecommunity applications "must not be approved", the classes of offenders whichfollowed were cases in which such risk did remain. That is a realistic interpretation ofthe words used, in the context of the circular as a whole.59 In my view, thiscombination of wording, with the directive that certain applications "must not beapproved", again crossed the line into impermissible dictation.58 Section M04.07.59 Which is not to suggest that it was actually interpreted in that way in any given case. Evidenceproduced in relation to Mr Taylor's application does, however, indicate this is how it wasinterpreted by the Inspector of Corrections when considering a complaint by Mr Taylor that hisRTW had been revoked, noting, on the basis of the circular, that "you are a 'violent offendersubject to an indeterminate sentence'. This means that you are no longer considered eligible forRTW employment." Similar comments were made on behalf of the Department in 2015correspondence with Mr Taylor's legal counsel.[72] In this context, the circulars can be contrasted with the policy or guidanceconsidered by the full Court of Appeal in Attorney-General v Refugee Council of NewZealand Inc. That case considered the legality of policy, issued shortly after the11 September attacks, guiding the discretion to detain those claiming refugee status atthe border. Tipping J (giving judgment for himself, Blanchard and Anderson JJ)emphasised the need to consider the content of a policy as a whole.60 Havingexamined the content of the policy, his Honour stated that the words seemed to suggesta presumption against detention, rather than a presumption going the other way.61Having then considered the detailed text of the policy and "importantly, the tenor ofthe document as a whole", Tipping J concluded that it could not be read as requiringan unlawful approach by immigration officers to their statutory power of decidingrefugee claims at the border.62 McGrath J expressed similar views, noting that whilethe policy in that case had a "precautionary theme", he detected "no bias towardsdetention".63[73] In this case, the directive that in certain circumstances applications "must notbe approved" did not reserve the possibility, when taking into account all relevantinformation, that an application might nevertheless be granted.64 The overall tenor ofthe circulars is therefore quite different to the policy in issue in Attorney-General vRefugee Council of New Zealand Inc.[74] I accordingly conclude the RTW circulars were an unlawful act of dictation,given they directed that applications of a certain class must not be approved.Ultra vires as a stand-alone ground of review[75] Given my conclusions above, the circulars were "ultra vires" in the broad sensethat they went beyond the powers entrusted to the Chief Executive (and his delegates)under the Act. In that context, it is arguably unnecessary to consider whether thecirculars were ultra vires in any narrower sense.60 Attorney-General v Refugee Council [2003] 2 NZLR 577 (CA) at [22].61 At [24].62 At [27].63 At [120]. See also the judgment of Glazebrook J, at [282].64 Similar to the policy in issue in Westhaven Shellfish v Chief Executive of Ministry of Fisheries[2002] 2 NZLR 158 at [48]-[49] and [53].[76] Mr Smith did submit, however, that the circulars were akin to regulations andthus fell foul of the common law principle that all subordinate legislation must bewithin the scope of its empowering Act.65 In response to Ms Todd's submission thatthe circulars cannot be considered subordinate legislation for the purposes of theseprinciples, Mr Smith says that on the basis of ss 37 to 39 of the Legislation Act 2012,the circulars were "disallowable instruments" and that under s 29 of the InterpretationAct 1999, a "disallowable instrument" under the Legislation Act 2012 is a regulation.[77] I do not accept Mr Smith's submission that the circulars went beyond beingmere guidelines to, in substance, becoming unlawful instruments for the purposes ofthe Legislation Act.[78] The starting point is that the circulars were guidelines issued pursuant tos 196(1)(a) of the Act. Next, s 38 of the Legislation Act 2012 defines "disallowableinstruments" as "an instrument made under an enactment" which (relevantly forpresent purposes) "has significant legislative effect". "Significant legislative effect"is in turn defined at s 39 as being where the effect of the instrument is to:(a) create, alter or remove rights or obligations; and(b) determine or alter the content of the law applying to the public or a classof public.[79] The circulars in this case did not and cannot determine or alter the content ofthe law. While Mr Smith submits that is the effect they had (through individualdecisions made on temporary release applications), there is no doubt they did not andcould never determine or alter the law itself. Rather, they were and purported to beguidelines on the exercise of powers under the Act. They were "ultra vires" in thebroader sense discussed earlier in this judgment. But they were not ultra vires byvirtue of being subordinate legislation, in substance or form, which was inconsistentwith the empowering legislation.[80] Mr Smith's first cause of action is accordingly dismissed.65 See, for example, Rowling v Takaro Properties Ltd [1975] 2 NZLR 62 (CA) at 67-68.Individual decisions[81] It is appropriate I observe that my conclusion as to the lawfulness of thetemporary release and RTW circulars does not in and of itself say anything about thelawfulness of individual decisions taken on temporary release and RTW applications.Lord Dyson JSC, in R (WL (Congo)) v Home Secretary confirmed that the mereexistence of an unlawful policy is not sufficient to establish that any particular exerciseof a statutory direction is unlawful.66 Similar statements were made in Attorney-General v Refugee Council of New Zealand Inc. The majority stated that whether apolicy's interpretation or application in a particular case was unlawful will depend ona close consideration of the circumstances of that case against the legal requirements.67Tipping J went on to state:68The unlawfulness of the operational instruction, even if that were the correctview, would not per se inevitably mean that Ms Hodgins' treatment of D musthave been unlawful. This case shows how difficult it is to deal appropriatelywith issues in the abstract and how important it almost is to consider issues oflaw against a concrete set of or sets of facts.[82] McGrath J made similar observations:69Problems are highly likely to arise where the proceedings seek to gobeyond review of the terms of the policy statement itself to bring arepresentative proceeding to determine the rights of all those to whom it wasapplied over a given period. Such proceedings cannot readily be determinedin the abstract, that is without reference to the particular circumstances ofapplication of the official guidance.[83] Glazebrook J took the same approach, stating that "any decision that thedetention policy was unlawful would not necessarily effect the legality of particularindividual detention decisions".70[84] The above concerns were expressed in the context of the High Court inAttorney-General v Refugee Council of New Zealand Inc having considered a "global66 R (WL (Congo)) v Home Secretary [2011] UKSC 12, [2012] 1 AC 245 at [63].67 Attorney-General v Refugee Council [2003] 2 NZLR 577 (CA) at [30].68 At [45].69 At [107].70 At [301]. See also R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC12, [2012] 1 AC 245 at [63]; R (Hicks) v Commissioner of Police of the Metropolis [2012] EWHC1947 (Admin) at [157]; and R (Sandiford) v Secretary of State for Foreign and CommonwealthAffairs [2014] UKSC 44, [2014] 1 WLR 2697 at [157].and representative" approach to determining whether there were issues with how therelevant policy had been implemented. Tipping J stated:71We do not consider the Court should lend its aid to such an approach, the moreso in respect of a period following a major adverse change in the internationalsecurity climate. We do not think the High Court should have proceeded inthe global representative way it did. In our judgment the Courts shouldconfine their attention in relation to the actual implementation of the relevantstatutory powers to individual cases where the particular facts can receive thenecessary close examination. We therefore respectfully disagree with theJudge's generally and representative approach to this aspect of the case, andconfine ourselves on the implementation front to the case of the secondrespondent, D, whose individual case is the only one before us.[85] I make these observations as aspects of Mr Smith's evidence and submissionsfocuses on how he says the circulars were implemented in practice in relation to asmall number of named prisoners (i.e. other than Mr Smith himself, or Mr Taylor).The primary purpose of Mr Smith adducing that evidence was to encourage the Courtto draw "inferences" from how the circulars were implemented in practice, to thelawfulness of the circulars themselves. As noted, however, the Court of Appeal inAttorney-General v Refugee Council of New Zealand Inc was clear that such a processof "reverse engineering" was not permissible in interpreting or considering the legalityof a policy.72[86] In his written reply submissions, Mr Smith appears to suggest this Court couldand ought to make declarations in relation to the temporary release decisionsconcerning the other named prisoners, about whom some evidence was adduced in hisaffidavit materials. In his oral submissions, Mr Smith accepted that an order in theseproceedings to review any particular RTW decision where there is evidence that anyone or more of the circulars had been taken into account was "somewhat ambitious".In my view, given the cautionary comments by the Court of Appeal in Attorney-General v Refugee Council of New Zealand Inc, that is a proper concession. Furtherand in any event, Mr Smith's statement of claim does not seek such relief ordeclarations. Nor, other than Mr Taylor, are any other parties before the Court.71 Attorney-General v Refugee Council [2003] 2 NZLR 577 (CA) at [32].72 At [30]-[31].[87] I accordingly say nothing further on what impact, if any, my findings on thelawfulness of the circulars might have on individual temporary release and/or RTWdecisions.Relief on Mr Smith's claim[88] The final issue for consideration on Mr Smith's application is what relief, ifany, ought to be granted.[89] Mr Smith relies on the general proposition, summarised by Katz J in Smithv Attorney-General, that successful judicial review applicants are entitled tovindication, in particular via a declaration, unless there are special considerations tothe contrary or extremely strong reasons for refusal.73 Her Honour also noted that itis important that justice is seen to be done, and judicial review may serve as a deterrentfunction.74[90] The Department does not challenge these observations as a matter of principle.It acknowledges there must be good grounds to decline relief having found an error oflaw, as formal and public recognition of unlawfulness can assist in upholding the ruleof law. As noted, however, the Department says that generally a remedy will begranted only where it is capable of serving a useful purpose and will not be granted ifit would be useless to do so. The Department points to the Court of Appeal'sobservations in Department of Internal Affairs v Whitehouse Tavern that there must besome practical consequence to the parties or to the broader public from proposeddeclaratory relief under the (then) Judicature Amendment Act.75[91] I consider the matter finely balanced. There is no "live" controversy or disputeas between Mr Smith and the Department on the impact of what I have found to be theunlawful circulars. A new regime was implemented in October 2015 in relation totemporary release. Further, for the reasons set out at [81]-[86] above, any declaration73 Smith v Attorney General [2017] NZHC 136 at [152], referring to Williams v Auckland Council[2015] NZCA 479 at [99].74 At [152].75 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398 at [80].of invalidity of the circulars themselves does not necessarily taint any downstreamindividual decisions on temporary release.[92] Nevertheless, I consider there is broad public interest in the Court ruling on thelegality of guidelines or policy such as that in this case, and making formaldeclarations of invalidity if that is made out. As summarised at [44] above, there isnothing inherently unlawful in guidelines or policy being issued to guide the exerciseof discretionary powers. Indeed, there are benefits from doing so. But the benefitswill only be realised if the guidelines or policy, which may guide many individualdecisions, are consistent with the underlying statutory regime and not otherwise anunlawful dictation or fetter on discretion. The findings of unlawfulness in this caseare not merely technical errors. In the absence of consideration of individual decisionsmade on temporary release during the period the circulars in this case were in effect, Ialso cannot exclude the possibility that the declarations may be of some relevance orpractical consequence to such decisions.[93] Accordingly there is some broader utility of declarations being made whichserve the purpose both of vindication, but perhaps more importantly in this case,providing guidance for future conduct. I will make declarations as to the unlawfulnessof the temporary release and RTW circulars.[94] I accept the Department's submission, however, that the declarations must beappropriately constrained to relate to the circulars themselves and not to any of theindividual decisions as to entitlement to temporary release made pursuant to, or duringthe period they were in force.Mr Smith's application - result[95] Accordingly, I declare that:(a) the temporary release circulars were an unlawful dictation and fetter ondiscretion in the manner described at [64] above; and(b) the RTW circulars were an unlawful dictation and fetter on discretionin the manner described at [74] above.[96] Mr Smith's application for judicial review is otherwise dismissed.[97] I turn now to Mr Taylor's claim.Mr Taylor's claim[98] I first set out in more detail the factual background to and steps taken in thelead up to Mr Lightbown's decision of 11 December 2014. I then summarise theparties' submissions and then set out my analysis and conclusions on each of the issuesarising.Mr Lightbown's decision – more detail[99] Mr Lightbown explains that immediately following Mr Smith's escape, andbetween around 9 and 18 November 2014, he put in place a process at Spring Hill forthe review and risk assessment of all prisoners then on RTW. He explains this wascommenced independently of the temporary release and RTW circulars, but wasconsistent with them.[100] Mr Lightbown states that he wanted to assess all prisoners on RTWindividually, paying particular attention to those subject to indeterminate sentences:both because their offending/sentences show they are dangerous (and thusmore likely to pose a high-risk of violent or sexual reoffending, as their risk islikely to stay static and require significant treatment to lower that risk) andbecause they were less likely to be close to release and reintegration into thecommunity.[101] Mr Lightbown explains how he refers to this group of prisoners as what heconsiders to be "high risk", not to be confused with prisoners generally with a formal"HRX" status within the prison system (though he notes that many prisoners servingindeterminate sentences will also have "HRX" status). Mr Lightbown says that he didnot consider there to be any prohibition on him authorising RTW to prisoners with aformal "HRX" status.[102] As part of the review and risk assessment process, Mr Lightbown asked histeam to ensure that, in relation to each prisoner on RTW:(a) Psychology reports were produced;(b) Intel reports were available; and(c) SDAC21 assessments were carried out.76[103] He also directed that GPS training be carried out for all staff.77[104] By 19/20 November 2014, Mr Lightbown had considered and discussed withhis team each of the RTW prisoners he considered "high risk". This includedMr Taylor, serving an indeterminate sentence for kidnapping, rape and murder. At thatstage, and having considered Mr Taylor's stable employment, the good feedback fromhis employer and that Mr Taylor "had come a long way on his personal journey",Mr Lightbown formed the view that Mr Taylor should remain on RTW. Mr Lightbownsays he was also aware that Mr Taylor had a Parole Board hearing in December 2014and did not want to jeopardise his prospects of parole by pulling him from RTW atthat time. Mr Lightbown discussed his decision with the Regional Commissioner, whowas satisfied with it, but suggested additional checks and conditions be included inMr Taylor's RTW programme.[105] Mr Lightbown explains that a little later in November 2014, and havingreceived the 21 November 2014 RTW circular, he had queries as to the process forapproving RTW decisions. He states that his understanding of the circulars was thatthe decisions were to be made by him, but he would need to advise and take advicefrom Regional Commissioners. He nonetheless wanted to be sure of that process.[106] Mr Lightbown also explains that around 27 November 2014, and havingconsidered the 21 November RTW circular (and "the category of prisoners identifiedas likely to pose a risk to the community"), he "stepped back" and "really thoughtwhat RTW was all about". He was concerned that to that point, the process hadbecome somewhat mechanical, and that "many prisoners basically got RTW if theymet the eligibility criteria and were well behaved". He states:76 SDAC21 is a dynamic ongoing assessment of risk conducted by case managers.77 Given GPS monitoring could be a condition of RTW. Mr Lightbown also made arrangements formore GPS units to be purchased.The circular, and as far as I can recall, my discussions with the RegionalCommissioner made me realise that a proper assessment of risk to the publicwas needed, particularly for dangerous prisoners serving indeterminatesentences (as highlighted in the circular) and I really needed to think about theway in which RTW would assist the prisoner's rehabilitation or reintegrationinto the community. While this seems obvious now, it had just not been thepractice up to that point.[107] On 28 November 2014, Mr Lightbown sought input on his decision-making inrelation to Mr Taylor from the National Office High Risk Response Team. Given itwas clear that the Team's feedback would not be forthcoming for some days,Mr Lightbown says he decided to temporarily suspend Mr Taylor's RTW. He saysthat:At this point in time I didn't feel I had enough evidence and expert opinion tofully assess his risk and suitability and hence continue his placement on RTW.[108] By the end of November/early December 2014, an Advisory Panel had beenset up at Spring Hill to consider and make recommendations about RTW. The firstsuch Panel meeting was to take place on 4 December 2014.[109] Mr Lightbown received the High Risk Response Team's views on Mr Taylor'scontinuation on RTW, on 1 December 2014. The Team's feedback was in summarythat:(a) Taking into the seriousness of Mr Taylor's offending, Departmentalrecords and previous psychological report, Mr Taylor was assessed atmoderate risk of reoffending;(b) File information confirmed Mr Taylor's attendance at, and completionof, a variety of rehabilitative programmes;(c) Even though the most recent psychological report of October 2014supported ongoing RTW, it also expressed concerns that there had beenno treatment regarding Mr Taylor's sexual deviancy and (by referenceto Parole Board views in 2013) his ongoing denial of sexual deviancyremained a concern;(d) Mr Taylor had not been subject to any misconduct and had goodengagement and feedback from his employer; and(e) In light of the above, ongoing RTW was supported with certainrecommendations and considerations. In particular, the High RiskResponse Team recommended further engagement with a Departmentalpsychologist to develop a robust safety plan, the review of the SDAC21assessment, and the development of a robust RTW plan which includedGPS monitoring.[110] Mr Lightbown reviewed the feedback that day and asked that Mr Taylor beadded to the Panel discussion scheduled for 4 December 2014.[111] The Panel meeting went ahead on 4 December 2014. Present were the SpringHill custodial systems manager, the operational support manager, the probation servicemanager, the principal case manager, an intelligence officer, a regional psychologistwho covered Spring Hill, two RTW brokers, the activity manager, an admin supportofficer, the "manager industries" and Mr Lightbown. As the Panel was to makerecommendations to Mr Lightbown as decision-maker, he did not consider itappropriate that he chair the meeting himself. The chair was a Ms Faull (theoperational support manager), who Mr Lightbown describes as having "significantexperience with probation and management of offenders in the community".[112] Mr Lightbown says that by this time, he was:really wanting to focus on individual risk assessments for RTW in relationto those categories of offenders that had been highlighted in the circular aslikely posing a risk to the public. There was no blanket approach.[113] In the event, a final decision was not taken on Mr Taylor's RTW status at the4 December 2014 meeting. Mr Lightbown says:I was thinking that indeterminate sentenced prisoners were dangerous and hadbeen identified in the circulars as high risk in terms of working in thecommunity and potentially should not go out on RTW. Also it seemed thatsome sort of role would be played by the Regional or National Commissionerif they were to go out on to RTW. I felt that I needed more clarity on how todeal with indeterminate sentenced prisoners and I wasn't comfortable takingfurther steps on that day.[114] Mr Lightbown also noted that he had information about Mr Taylor's individualrisk by that date, and he knew Mr Taylor had a Parole Board hearing on 10 December2014. He considered this could be relevant, either in terms of Mr Taylor being grantedparole or the Parole Board identifying risks of him being in the community.[115] Mr Taylor's Parole Board hearing was held on 10 December 2014. Mr Taylorwas declined parole. The Board gave a short outline of the reasons why parole wasdeclined, with its more detailed written reasons to follow. Mr Lightbown did notattend the hearing, but Mr Taylor's Principal Corrections Officer, Ms Ahyu, did. Sheentered a note in the centralised prisoner management system (IOMS) later that day,which stated:Prisoner attended NZPB today. Declined Parole. Reintegration to cease untilissue of sexual devant [sic] has been dealt with. Awit [sic] confirmation fromBoard.[116] The Spring Hill Advisory Panel met again on 11 December 2014. Most ofthose who attended on 4 December were present, including the two RTW brokers andthe regional psychologist.78 Mr Lightbown refers to the minutes of the meeting,including that what he was trying to convey was that "if I thought there was a goodreason for an indeterminate sentenced prisoner to go on RTW, then there was scopefor me to approve him but I would keep the Regional and National Commissioners inthe loop (as they may have ideas as to mitigation and supervision)". Mr Lightbowngoes on to say that:However, despite the fact I still wasn't entirely sure whether prisoners fallinginto the significant risk/indeterminate sentence category could actually go outon RTW, I did go ahead and consider each prisoner falling within that category(and other prisoners who appeared suitable to engage in RTW activities).Again, I did not take a blanket approach to considering these prisoners.[117] Mr Lightbown explains how the Panel went on to discuss each prisoner, witheach panel member providing input from their particular area of expertise orresponsibility. In relation to Mr Taylor, Mr Lightbown states that (understandably) itis now difficult to recall exactly what was said, but that:78 Ms Ahyu, who had attended Mr Taylor's Parole Board hearing, did not attend.(a) The RTW brokers would have communicated the good feedback fromMr Taylor's employer and that GPS was available at his place of work;(b) Details of Mr Taylor's offending and sentencing would have beenprovided;(c) An update on the outcome of the Parole Board hearing would have beenprovided, and that he recalled the Parole Board did not supportreintegration and had concerns about Mr Taylor's sexual deviancy, butthe full reasons were not then available (rather than the summary inIOMS referred to at [115] above);(d) Information was presented from the regional psychologist.Mr Lightbown says he cannot recall exactly what the psychologist said,but it was highly unlikely she would have departed from what was saidin the most recent psychological report from October 2014 prepared forthe Parole Board, namely that:(i) Mr Taylor was estimated to be at moderate risk of general andviolent re-offending and at a medium to low risk of sexualoffending within the five years following his release fromprison;(ii) His safety plan could be made more robust with the inclusion ofsexually-related risk management strategies; and(iii) Further interventions focussing on sexual violence shouldoccur.[118] Mr Lightbown also refers to the High Risk Response Team's feedback whichhe had reviewed in early December (see [109] above), and says this "would have beenin the back of my mind, but [I] do not think we discussed these views at the panelmeeting".[119] Mr Lightbown decided to decline Mr Taylor from continuing with RTW at thatstage. He explains his decision as follows:I considered all of the above information and did not take my decision aboutMr Taylor lightly. I knew he had a good work history and ethic. But the veryserious nature of his offending ("the big three") and sentence and the advicethat he should have further treatment for sexual violence meant he posed a riskto the community. Further, as parole had just been declined, there was noimmediate need for Mr Taylor to be reintegrated into the community. I didplace significant weight on the Parole Board's view that reintegrativeactivities should cease in these circumstances. That also brought home to methat the Parole Board was assessing risk in a more sophisticated way than we(at Spring Hill) had previously been doing. I decided not to approve Mr Taylorfor RTW.Submissions for Mr Taylor - summary[120] Ms Levy, on behalf of Mr Taylor, acknowledges that Mr Lightbown's affidavitsuggests the December 2014 decision about Mr Taylor's continuation on RTW was infact made on an individual basis, unfettered by any direction that Mr Taylor wasineligible for consideration.[121] As noted, Mr Taylor nevertheless submits there were a number of flaws orerrors in the process by which Mr Lightbown reached his 11 December 2014 decision,namely:(a) He was misled by the RTW circular issued on 21 November 2014, tothe effect that Mr Taylor was necessarily high risk in the context ofRTW because of his offending history, which was an inappropriatefetter on his discretion;(b) He wrongly considered the risk to the safety of the communitygenerally or in the context of parole (i.e. rather than in the context ofRTW itself);(c) He took into account the views of the Parole Board, and wronglyconcluded the Parole Board's view was that Mr Taylor's risk profilewas high enough that RTW should cease (when the Parole Board'sunderstanding was that Mr Taylor's was not in fact on RTW whenMr Smith escaped, which was itself also wrong);(d) He failed to give any or adequate consideration to the views of the HighRisk Response Team, which supported Mr Taylor's continuation onRTW (in that those views were "at the back of his mind", rather than"front and centre" with matters such as the Parole Board's views); and(e) In relation to the mandatory relevant consideration of whetherMr Taylor posed an undue risk to the safety of others while outside theprison on RTW, Mr Lightbown needed considered, expert and adequateinformation,79 which he did not have (other than the High Risk ReviewTeam's views).[122] In summary, Ms Levy submits the only information available to Mr Lightbownweighing against Mr Taylor returning to what had to that point been a successfulplacement on RTW was "a truncated report of the unorthodox views of a ParoleBoard," which was itself mistaken as to Mr Taylor's RTW status and considering riskin a different context in any event. Ms Levy says that the alleged "processing flaws"lead to the inescapable conclusion that Mr Lightbown's December 2014 decision wasbased on insufficient information directed to the RTW context, was unfair and thusdeserving of a remedy.Department's submissions in relation to Mr Taylor - summary[123] Mr Fong delivered the Department's submissions on Mr Taylor's claim. Hesubmits Mr Lightbown's decision was properly made having considered all relevantconsiderations. He says that Mr Taylor's application is a challenge to the merits of thedecision.[124] Mr Fong submits the evidence demonstrates Mr Lightbown did not make hisrisk assessment in a vacuum. Rather, he fully considered and was aware that he wasmaking an assessment of risk in the context of RTW. Mr Lightbown's evidence is that79 Auckland City Council v Minister of Transport [1990] 1 NZLR 264 (CA) at 303.he placed significant weight on the Parole Board's view of Mr Taylor's prospects ofreintegration and rehabilitation. Mr Fong says there was nothing improper inMr Lightbown taking into account the Parole Board's views in this way, which couldnot be considered an irrelevant and therefore impermissible consideration.[125] Mr Fong further submits that the High Risk Response Team's feedback wasnot itself a mandatory relevant consideration. But in any event, Mr Lightbown wasaware of that feedback and did take it into account, and what weight he ascribed to itwas properly a matter for him. Mr Fong submits the matters considered by the HighRisk Response Team were the same matters considered by Mr Lightbown in any event.[126] Finally, and to the extent Mr Taylor's case turns on whether Mr Lightbown hadsufficient information before him on the question of whether Mr Taylor posed anundue risk to the community if released on RTW, Mr Fong submits the Court mustconsider such matters in a realistic way, and perfection is not expected or required.Ultimately, the test is one of reasonably adequate information, sufficient to allow areasonably informed decision, judged in the circumstances prevailing at the time.80Mr Fong notes that "judicial review is, after all, not micro-management of decision-making processes".81 In summary, Mr Fong says that based on the same factorsconsidered by the High Risk Response Team, and taking into account feedback froma multi-disciplinary Advisory Panel and the Parole Board's most recent views,Mr Lightbown simply reached a different view to the High Risk Response Team,which he was entitled to do on the merits.[127] I turn now to the issues arising on this aspect of Mr Taylor' claim.8280 Talley's Fisheries Ltd v Minister of Immigration HC Wellington CP 201/93, 10 October 1995.81 Citing Clifford J in Wellington International Airport Ltd v Commerce Commission HC Wellington,CIV-2011-485-1031, 22 December 2011 at [54].82 For completeness, I note Mr Lightbown's comment that as Mr Taylor's parole had just beendeclined, there was no immediate need for Mr Taylor to be reintegrated into the community. Inthis context, the Department refers to observations of the Court of Appeal in Miller v New ZealandParole Board [2010] NZCA 600 at [158] that "given the effects of re-integrative programmesdegrade over time, they are sensibly deferred until such reintegration is reasonably imminent".Ms Levy was critical of these observations and submitted I am not bound by them, being obiteronly. Mr Taylor's application is not based, however, on any suggestion that this aspect ofMr Lightbown's reasoning was an irrelevant consideration vitiating the decision or, for example,was unreasonable in the Wednesbury sense. It is accordingly not necessary or appropriate for meto engage further on this particular issue.Did Mr Lightbown decline Mr Taylor's RTW application on a blanket basis that hewas a violent offender subject to an indeterminate sentence?[128] As noted, this ground was not pressed firmly on Mr Taylor's behalf.[129] Mr Lightbown's evidence is clear that he took a tailored and individualapproach to Mr Taylor's application for RTW, and did not approach it on the basis theRTW circulars required a blanket "rejection" of his application given he was a violentoffender subject to an indeterminate sentence. Ms Levy accepted that Mr Lightbown'sevidence "could be credible".[130] It is correct that other communications to Mr Taylor after his application forRTW had been declined seemed to proceed on the basis that his application had beenrejected given he was part of a particular class of prisoner. None of thosecommunications were authored by Mr Lightbown himself.[131] There is no basis upon which I ought to reject Mr Lightbown's evidence of theoverall approach he took to Mr Taylor's RTW application. The contemporaneousdocumentary record leading up to the Advisory Panel meeting on 11 December 2014demonstrates that an individualised approach was taken. Indeed, consideration ofMr Taylor's specific position would have been unnecessary if Mr Lightbown hadapplied the RTW circular on a blanket basis to prisoners serving indeterminatesentences. I observe that in light of Mr Lightbown's evidence and thecontemporaneous record leading up to the 11 December 2014 decision, the latercorrespondence with Mr Taylor and/or his advisors was unhelpful in the impression itconveyed to him.[132] I have also considered whether Mr Lightbown was "misled" or otherwise ledinto vitiating error by the RTW circulars. As I have already noted, the circulars' termswere not clear, and appear (not unreasonably) to have led to some confusion onMr Lightbown's own part as to whether they were a directive that prisoners onindeterminate sentences could not be approved for RTW. Despite that confusion,however, and given he did not have clarification of the position by 11 December 2014,Mr Lightbown proceeded to make a decision on Mr Taylor on the premise it was opento him to approve him for RTW. Mr Lightbown therefore proceeded on the basis oftaking a "hard look" at prisoners on indeterminate sentences, which had been the focusof his review from the outset, i.e. prior to receipt of the 21 November 2014 circular.83Accordingly, while the text of the circular was not helpful and injected some confusioninto what Mr Lightbown understood to be own decision-making role, he neverthelessproceeded to an individualised decision.[133] On the basis Mr Lightbown approached his decision as taking a "hard look" atprisoners serving indeterminate sentences, I do not consider that approach was in andof itself unlawful.84 In argument, Ms Levy accepted that guidelines can direct such a"hard look", provided it is based on relevant and not irrelevant considerations. In thiscase, taking a "hard look" was based on consideration of risk, being a relevantconsideration set out in s 62(3) of the Act, coupled with the paramount principle ofmaintenance of public safety in s 6(1)(a).[134] The first ground of challenge to Mr Lightbown's decision is thereforedismissed.Did Mr Lightbown fail to consider whether Mr Taylor posed an undue risk to thecommunity if released on RTW, and instead consider the safety risk more generallyand/or in the context of parole?[135] I am also satisfied this ground of challenge fails.[136] There is no doubt Mr Lightbown was aware that he was consideringMr Taylor's application for RTW in the context of release onto RTW itself, and thesafeguards and monitoring available through such a process. This is evident from, forexample, his initial decision to continue Mr Taylor on RTW; his knowledge ofMr Taylor having been on GPS monitoring while he had been on RTW; his orderingof further GPS units in the context of his overall review; his discussions with theRegional Commissioner on 19 or 20 November 2014 who suggested additionalmonitoring and checking that could be undertaken for Mr Taylor to remain on RTW;considering the feedback from the RTW brokers on Mr Taylor's employer's views and83 See the discussion at [99]-[104] above of Mr Lightbown initiating a review immediately afterMr Smith's escape.84 Re Findlay [1985] AC 318 (HL).his good history on RTW; and the continued availability of GPS at Mr Taylor'sworkplace.[137] It is correct Mr Lightbown placed significant weight on the Parole Board'sviews, at least as they were available to him on 11 December 2014. I address furtherbelow whether this in and of itself was in error. Ms Levy submits there is nothing inthe material available to Mr Lightbown to support a view that the Parole Board wasassessing risk in relation to RTW in a more sophisticated way than had been happeningat Spring Hill previously. However, it is not credible, in my view, to suggestMr Lightbown did not carry out his risk assessment of Mr Taylor in the context of therisk Mr Taylor posed if released on RTW and with an understanding that the ParoleBoard was considering Mr Taylor's risk assessment in the context of parole (and notrelease on RTW).Did Mr Lightbown err in taking into account the views of the Parole Board (which aresaid themselves to be based on a mistake of fact)?[138] Mr Taylor's amended pleadings state that:Mr Lightbown made a mistake of fact in relying on erroneous descriptions ofthe New Zealand Parole Board's view, which erroneously indicated thatMr Taylor's reintegrative activities should cease.[139] As noted above, the information available to Mr Lightbown at the time of his11 December 2014 decision was the summary of the outcome of the Parole Boardhearing on 10 December 2014 contained in the IOMS system. The Parole Board's fullreasoning was not then available, and Ms Ayhu, who had attended the Parole Boardhearing, was not present at the 11 December 2014 Advisory Panel meeting.[140] Ms Levey submits it is clear from the full Parole Board decision that the Boardwas under the erroneous impression that Mr Taylor had been stood down from RTWprior to Mr Smith's escape, as a result of incurring a speeding fine when travelling tohis workplace and engaging in an argument with a Corrections officer. Ms Levysubmits the important point to be drawn from this is that the Parole Board did not, asreported in the IOMS system, direct that Mr Taylor's reintegrative activities shouldcease; rather, given they (wrongly) thought he had already ceased RTW, its view wasthat there should not be any reinstatement of reintegrative activities pending severalissues being addressed, including what it viewed as Mr Taylor's failure toacknowledge the elements of sexual deviancy in his offending.[141] Ms Levy submits (by reference to earlier and later Parole Board decisionsconcerning Mr Taylor) that "this would appear to be an unusually bold, harsh, andblanket approach to reintegrative activities by this particular Parole Board". However,the Parole Board's decision or approach on 10 December 2014 is not under challengein these proceedings. Mr Taylor's submissions accept that "clearly there are differentviews on whether reintegrative activity can or [should] take place alongside theaddressing of risks such as an unacknowledged sexual deviancy." The submissionson this aspect of Mr Taylor's application in particular demonstrate that a notinsignificant aspect of Mr Taylor's challenge to Mr Lightbown's decision concerns themerits of that decision.[142] But putting those observations aside, I do not consider the fact Mr Lightbowntook into account and placed weight on the Parole Board's views, as recorded inIOMS, was in error, resulting in his decision being unlawful. There is no suggestionthe Parole Board's views were irrelevant; indeed, Ms Levy accepted they were amatter Mr Lightbown was entitled to take into account. That must be right. So longas the decision-maker is conscious of the different context in which risk is beingconsidered (i.e. parole versus RTW), an expert body's assessment of a prisoner's riskin the community could not be said to be an irrelevant consideration. And as notedabove, I am satisfied Mr Lightbown was aware of the context in which he was carryingout his decision-making compared to that of the Parole Board. Further, unless theweighing of various factors is so perverse as to be manifestly unreasonable, the weighta decision-maker puts on relevant considerations is a matter for them not the Court.85[143] To the extent the IOMS entry incorrectly recorded that the Parole Board's viewwas the reintegration activities cease rather than be reinstated, I do not consider thisadvances Mr Taylor's argument. Mr Lightbown himself was plainly aware of the85 Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington,2016) at [69.1.1]; Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexisNZ, Wellington, 2018) at [15.56].status of Mr Taylor's reintegration activities as at 11 December 2014, given it was hewho had directed on 28 November 2014 that Mr Taylor should cease RTW pendingthe review being completed. It is not clear to me, nor was it explained, how a viewthat reintegration cease, rather than be reinstated, in light of the Parole Board's overallrisk assessment of Mr Taylor, would have altered matters. Mr Lightbown wasinfluenced by and placed weight on the Parole Board's view that Mr Taylor's neededto address his sexual deviancy before it supported reintegration. That was thesubstance of the Parole Board's views taken into account by Mr Lightbown, ratherthan a narrow distinction between reintegration ceasing or being reinstated.[144] I accordingly do not consider Mr Lightbown fell into error in taking intoaccount and placing weight on the Parole Board's views, as understood by him at11 December 2014.Did Mr Lightbown err in failing to consider the view of the High Risk Response Teamor make his decision on the basis of insufficient information concerning risk?[145] I have considered the last two issues set out at [121] above together, as theygive rise to similar considerations.[146] In short, Ms Levy accepts on behalf of Mr Taylor that the High Risk ResponseTeam's views were not themselves a mandatory relevant consideration. But shesubmits that:Mr Lightbown was looking at the mandatory considerations in s 62(3) of the[Act]. His particular concern was risk. It was a serious failure to not pay closeattention to the views of the High Risk Response Team, which supportedMr Taylor returning to RTW. Mr Lightbown had sought the views of that teambecause he wanted the views of the National office experts on Mr Taylor'ssuitability for RTW. Mr Lightbown was not bound by the views of the HighRisk Response Team, but given its particular consideration of Mr Taylor's riskfor RTW, he was obliged to consider its report and reasoning.[147] I am satisfied this aspect of Mr Taylor's challenge must also fail.[148] Having sought the High Risk Response Team's feedback, Mr Lightbown didtake it into account; he received and reviewed the feedback on 1 December 2014,which led him to request that Mr Taylor be placed on the agenda for discussion at theAdvisory Panel meeting on 4 December 2014. He also noted that when discussingMr Taylor's application at the Panel meeting on 11 December 2014, having reviewedthe Team's feedback earlier in the month, its views would have been "at the back ofhis mind". That feedback was not specifically discussed at the Panel meeting, but norwas there any requirement that it was. It was known to and had been considered byMr Lightbown as decision-maker.[149] Through the hearing, the focus of this aspect of Mr Taylor's challenge boileddown to the submission that the High Risk Review Team's response should have been"front and centre" of Mr Lightbown's consideration on 11 December 2014, being theonly "considered, expert and adequate" information available at that time on whetherMr Taylor would pose an undue risk to the community if released on RTW.[150] I do not accept that submission. Mr Lightbown took a number of steps in thelead up to 11 December 2014 to ensure he was in possession of sufficient informationto make a decision on Mr Taylor's RTW; indeed he had deferred earlier decision-making given he was not comfortable he had such information. As set out in the earlierdiscussion of the background to Mr Lightbown's decision-making:(a) He had called for a range of assessments and information in relation toeach prisoner on RTW during the period 9 November 2014 to18 November 2014;(b) He had requested and reviewed feedback from the High Risk ResponseTeam;(c) He assembled a multi-disciplinary Advisory Panel to discuss and adviseon RTW on a prisoner-by-prisoner basis;(d) He took into account the Parole Board's views on risk in relation toMr Taylor;(e) He took into account the regional psychologist's views on risk inrelation to Mr Taylor; and(f) He had reports from the RTW brokers as to Mr Taylor's good historyand feedback when in employment, and was also conscious of theconditions and monitoring available while Mr Taylor was on RTW.[151] I also accept the submission on behalf of the Department that the key mattersunderpinning the High Risk Response Team's views were available to and consideredby Mr Lightbown in any event. The High Risk Response Team's views were basedon Mr Taylor's risk profile of reoffending; the October 2014 psychological report; hisongoing denial of sexual deviancy (by reference to Parole Board views in 2013); 86 hisgood engagement with his employer; and his attendance and engagement with variousrehabilitative programmes and treatment. The same (or in the case of the ParoleBoard's views, more recent) information was before Mr Lightbown, either directly orvia the psychologist report of October 2014.[152] Accordingly, while Mr Lightbown's December 2014 decision was no doubtvery disappointing to Mr Taylor, and while others may have taken a different view, Ido not consider he made his decision on the basis of insufficient information. Nor doI consider it was otherwise unlawful. Ultimately, the fact others might have reacheda different conclusion is not a proper basis to set aside statutory decision-making.[153] For the above reasons, Mr Taylor's application to judicially reviewMr Lightbown's decision of 11 December 2014 is dismissed.Result and costs[154] I have made declarations on Mr Smith's application as set out at [95] above.[155] Mr Taylor's application for judicial review of the RTW decision made abouthim on 11 December 2014 is dismissed.[156] Mr Smith is self-represented and has presumably not incurred any legal costs.He is, however, entitled to be reimbursed his reasonable out of pocket disbursementsin connection with this proceeding, including any filing fees. If the parties cannot86 The High Risk Response Team's feedback was provided prior to Mr Taylor's Parole Board hearingon 10 December 2014.agree on these matters, Mr Smith may file a costs memorandum within 15 workingdays of the date of this judgment. The Department may file a response with a further10 working days. No memorandum is to exceed five pages in length.____________________Fitzgerald JSCHEDULE 1Circular: Correction Services Circular 2014/02Subject: Temporary release proceduresAuthority: These instructions constitute the Chief Executive Guidelinesfor the management of prisoner's temporarily released under sections 62 and63 in accordance with section 196(1)(a) of the Corrections Act 2004.These instructions are in addition to the instructions contained in the PrisonOperations Manual M.04.06 Temporary release section and apply over anycontradicting instructions contained in that section.Duration: These instructions will remain in force until the PrisonOperations Manual has been reviewed or the Chief Executive revokes them.PurposeThese procedures are to provide interim guidance to Corrections staff whentemporary release is being considered for a prisoner whose circumstances areexceptional.BackgroundOn 11 November 2014 the Chief Executive, in consultation with the Nationaland Regional Commissioners, directed all temporary release of prisoners willcease pending a comprehensive review of the temporary release processes andpolicies.The only exceptions will be approval for prisoners involved in Release toWork and those related to supervised programmes, or when exceptionalcircumstances apply. For prisoners who have special circumstances, e.g. afamily bereavement or tangi, escorted temporary removal is still available asan option.Exceptional Circumstances Eligibility CriteriaPrisoners may only be considered for temporary release in exceptionalcircumstances if they have a minimum security classification and are servinga sentence of:• 24 months or less, or• More than 24 months and the NZ Parole Board has specified a releasedate.For prisoners who do not meet the exceptional circumstance criteria the prisonmanager must consider the option of the prisoner being escorted (temporarilyremoval).Authority to approve temporary release in Exceptional CircumstancesThe delegation for temporary release for prisoners where exceptionalcircumstances apply has been lifted to Regional Commissioners. All prisonerswith exceptional circumstances that may require temporary release e.g.compassionate grounds, must be approved by your Regional Commissioner.Temporary releases for prisoners where there are exceptional circumstanceswill be limited to a maximum 12 hour period. If the Regional Commissionersupports a longer period they must obtain the support from the NationalCommissioner.Prison Managers must review and confirm the suitability of applications fortemporary release before they are referred to the Regional Commissioner forconsideration.GPS Monitoring ConditionPrior to an application for temporary release for prisoners where exceptionalcircumstances exist is referred to the Reginal Commissioner, it will benecessary for the Prison Manager to first consider if the prisoner should besubject to a condition of GPS monitoring (refer Use of GPS technology withPrisoners on Temporary Release for further information relating to GPS).Prison Managers must advise their Regional Commissioner of their reasonsfor supporting or not, the prisoner to be subject to GPS monitoring. TheRegional Commissioner may direct that a prisoner be subject to GPSmonitoring during the temporary release if they consider it necessary.The following prisoners should be subject to a condition of GPS monitoringduring their temporary release, unless the Reginal Commissioner is satisfiedit is not necessary or is not practicable, in which case they should decline thetemporary release:• Child sex offenders subject to an indeterminate sentence.• Offenders subject to a finite sentence who are likely to be suitable foran Extended Supervision Order or where the Department has appliedfor such an order.• Other sexual offenders subject to an indeterminate sentence.• Violent Offenders subject to an indeterminate sentence.Review prisoners released to supervise programmes or release to workAll Prison Managers should review the conditions of prisoners involved inRelease to Work, those released to supervised programmes and assess whetherthe prisoner should be subject to GPS monitoring during their temporaryrelease, if they are not already.Additional considerations for conditions of releaseIn addition to that (mandatory) conditions contained in the M.04.06 Form.05for temporary release from custody (IOMS form) and M.04.06.Res.04Temporary release conditions the Prison Manager must consider beforeapproving temporary release in exceptional circumstances:• Requiring the offender (or a relative) to surrender any valid NZ orforeign passports to the prison (or another authority)• If we cannot rule out their possession of a valid NZ or foreignpassport, preparing a contingent border alert request for that offender.This should be sent to Tony Coyle and the Incident Line beforeapproving temporary release, using a template that will be distributedin the next day or two. (The request would not be issued to Interpolunless the Incident Line is informed that the sponsor is not in thecontrol of the offender, or there is some other cause for concern.)Prison Manager may also consider recommending a condition that theprisoner physically report to (the nearest) Police Station during the temporaryrelease. This must only apply with the NZ Police consent.The Prison Manager may also recommend any of the conditions contained inM.04.07.Res.01 Conditions application matrix.If the prisoner is required to travel by air, this must be under escort and to thenearest prison to the approved destination. Under no circumstances is atemporarily released prisoner to be approved to take a flight unescorted.Approval of sponsorThe Prison Manager must ensure the temporary release nominated sponsor isa fit and proper person to supervise the prisoner during their temporaryrelease. In addition to the considerations contained in M.04.06.Form.04Department of Corrections sponsor verification form the Prison Managermust:• confirm the nominated sponsor is an "Approved" visitor (i.e. theircriminal record has been checked).• check that as an approved visitor the nominated sponsor has not beeninvolved in an incident(s) involving the prisoner.• check with Corrections Intelligence if they have information of thenominated sponsor.If there are any concerns that the nominated sponsor is not a fit and properperson to supervise the prisoner during their temporary release the PrisonManger must advise the Regional Commissioner.Confirmation of sponsor's responsibilitiesIn addition to the sponsor acknowledging (in writing) that they understand theconditions of the prisoner's temporary release they must agree to:• oversee the prisoner's behaviour and compliance with his or hertemporary release conditions, including their return to prison at thestipulated time;• inform prison staff immediately, or as soon as possible, if a prisonerbreaches his or her temporary release conditions; does not remain inthe sponsors control, or there are any behavioural or safety issues.The Prison Manager may require the sponsor to provide updates on whetherthe prisoner is compliant with the conditions of the temporary release by• "checking in" by ringing the Prison at specified times (times (e.g. ondelivery of the offender to an agreed location, at regular intervalsthereafter and before returning the offender to prison at the agreedtime), and, or• agreeing to respond to random call(s) from the prison during theperiod of temporary release.• requiring the offender to orally acknowledge their presence at thesetimes.Breach and cancellation of temporary releaseThe prisoner will be considered in breach of the conditions of their temporaryrelease licence and will be considered unlawfully at large:• if they have failed to return at the specified time, or• the sponsor advises the prisoner has breached any of their temporaryrelease conditions, or• the sponsor has failed to check-in at the stipulated time (and only afterprison staff have made a reasonable attempt to contact the sponsor viaan agreed telephone number), or• the prisoner has failed to attend a Police Station at a time specified.In the event a prisoner is in breach and unlawfully at large the Prison Managermust:• Immediately notify the Incident Line 0800 555 500, and completeIOMS incident report for a "Breach of Temporary ReleaseConditions"• Immediately notify the Police of the prisoner's identification detailsand most recent photograph and direct they arrest and return theprisoner to prison.• Liaise with the Police to manage the most appropriate and timelynotification to victims (VNR Policy) and to ensure their needs areresponded to.Please ensure all staff are aware of their responsibilities and the standards thatmust be met when a prisoner is being considered or approved for temporaryrelease.SCHEDULE 22014/03 Release to workTo: All Regional Commissioners and Prison ManagersIssued: 21 November 2014Type: InstructionsCircular: Corrrection Services Circular 2014 / 03Subject: Release to Work proceduresAuthority: These instructions constitute the Chief Executive Guidelinesissued in accordance with section 196(1)(a) of the Corrections Act 2004 forthe management of prisoners temporarily released for the purpose ofemployment under sections 62 and 63 of the Corrections Act 2004.These instructions are in addition to the instructions contained in the PrisonOperations Manual M.04.07 Release to work section and override anycontradicting instructions contained in that section.Duration: These instructions will remain in force until the Prison OperationsManual has been reviewed or the Chief Executive revokes them.PurposeThese instructions specify the interim procedures to be followed byCorrections staff responsible for managing prisoners currently approved, orwho are being considered, for temporary release for the purpose ofemployment (Release to Work).BackgroundPrisoners approved for Release to Work are not included in the ChiefExecutive direction issued on 11 November 2014 that all temporary release ofprisoners will cease, unless there are exceptional circumstances, pending acomprehensive review of the temporary release processes and policies.Pending this instruction, the National Commissioner directed that all PrisonManagers should review the conditions of prisoners involved in Release toWork and assess whether the prisoner should be subject to GPS monitoringduring their temporary release, if not already specified.The location of a prisoner's employment may not be suited to the applicationof a condition of GPS monitoring during the prisoner's release. In theseinstances Prison Managers have imposed other additional monitoringrequirements (random telephones calls from the prison and increased sitevisits from Corrections Staff) and the frequency they occur.To ensure there is consistency with the management of prisoners outside thesecure perimeter, the following interim instructions, that align with theTemporary Release interim procedures (National Circular 2014 02A), willapply to all prisoners currently approved, or who are being considered, forRelease to Work.Release to Work Eligibility CriteriaPrisoners may only be considered for Release to work if they meet theeligibility criteria set out in M.04.07.01 Eligibility criteria. If there are anyconcerns that the prisoner still poses a risk to the community the applicationfor Release to Work must not be approved, in particular where the Court hasindicated a significant risk, including:• Child sex offenders subject to an indeterminate sentence.• Offenders subject to a finite sentence who are likely to be suitable foran Extended. Supervision Order or where the Department has appliedfor such an order.• Other sexual offenders subject to an indeterminate sentence.• Violent offenders subject to an indeterminate sentence.• Violent/ sexual offenders sentenced to a term of more than two yearswho have not addressed their offending by completing a rehabilitativeprogramme.GPS Monitoring ConditionPrior to approving the prisoner for Release to Work the Prison Manager shouldassess whether the prisoner should be subject to GPS monitoring release (referUse of GPS technology with Prisoners on Temporary Release for furtherinformation relating to 13PS) during their release.If the Prison Manager does not consider it necessary for a condition of GPSmonitoring to apply during the prisoner's release they must record theirreasons on the M.04.07.Form.01 RTW application and assessment.Additional conditions of releaseBefore recommending Release to Work the Prison Manager must require theoffender to surrender any current NZ passport or foreign passports and othertravel documents to the prison (or another specified authority).The prisoner's IOMS photograph must be updated prior to their approval forRelease to Work and during the period they are approved for Release to Worktheir photograph must be refreshed every three months.In addition to the (mandatory) conditions contained in M.04.07.Form.04Authority for release to work (IOMS form) and M.04.07.Res.01 Conditionsapplication matrix the additional conditions must apply to any prisonerapproved for Release to Work:• They must not apply for a passport or any other travel documents.• They must stay in New Zealand, and• They must not go within 500 metres of an airport boundary.Under no circumstances will a prisoner on Release to Work be approved totravel by air.Suitability of employerThe Prison Manager must ensure the employer is a fit and proper person tosupervise the prisoner during their Release to Work. In addition to requiringthe employer to complete M.04.07.Form.02 Employer security checklist form,the Prison Manager must check:• if the employer is an approved visitor and has not been involved inany incident(s).• with Corrections Intelligence for information about the employerConfirmation of employer's responsibilitiesThe employer must certify in writing (refer M.04.07.Form.05 Agreedemployer responsibilities) that they:• understand the conditions of the prisoner's temporary release• agree to all standard employer responsibilities including the specifiedtype of monitoring set out in M.04.07.10 Supervision and randomchecks and the frequency• provide a full itinerary including location and times of activitiesplanned during the period the Release to Work before the prisoner isreleased• Note: the type and frequency of the monitoring will be influenced bythe location of the prisoner and the planned activities contained in theitinerary.• advise the prison of any changes to the itinerary before they occurPrison Managers must ensure the employer is provided with a copy of theM.04.07.Form.04 Authority for release to work. M.04.07.Form.05 Agreedemployer responsibilities and current itinerary each time it is refreshed.Breach of temporary release conditionsIn addition to M.04.07.11 Breach of RTW Conditions and M.04.07.12 Escapewhile on release to work the prisoner will be unlawfully at large if:• the prisoner has failed to return at the specified time, or• the employer advises that the prisoner has breached any of theirtemporary release conditions, or• the employer or prisoner has failed to check-in at the specified time(and only after prison staff have made a reasonable attempt to contactthe employer via an agreed telephone number), or• staff have directed the prisoner to immediately return to the prison dueto concerns the prisoner has breached the conditions.In the event a prisoner is in breach and unlawfully at large the Prison Managermust:• Immediately notify the Incident Line 0800 555 500, and complete anIOMS incident report for a "Breach of Temporary ReleaseConditions".• Immediately notify the Police of the prisoner's identification detailsand most recent photograph and direct them to arrest and return theprisoner to prison.• Liaise with the Police to manage the most appropriate and timelynotification to victims (VNR Policy) and to ensure their needs areresponded to.Please ensure all staff are aware of their responsibilities and the standards thatmust be met before a prisoner is approved for temporary release for thepurpose of employment.