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Corrections corrected
By Steven | January 27, 2011
Remember the prisoner who sued the Department of Corrections for confiscating and destroying his Cosmopolitan magazine? (Two hand-drawn pictures were also destroyed).
He won. Turns out, it was an easy call. Under the Corrections Act, prisoner property can only be destroyed if the prisoner fails to comply with a requirement to remove it, and the destruction is performed with the authority of the prison manager and in the prisoner’s presence. The department admitted it flouted those rules. Game over. (I suspect there are serious and under-explored questions about how often prison authorities break the law.)
But only particular types of property can be confiscated. It must be dangerous, booze or drugs, perishable (that’s weird) or “objectionable”. One of the prisoner’s arguments was that the confiscated property was not objectionable, particularly in light of his rights under the Bill of Rights Act. The magazine reportedly compared pictures of real and fake breasts. The drawings were of a celtic cross and a woman in underwear.
The Corrections Act contains no definition of “objectionable”. The Films, Videos and Publications Classification Act contains an extensive definition which of course isn’t directly relevant, but may well not cover the confiscated items.
Judge Williams ducked this question, alas. He pointed out that the materials were destroyed, so were not in evidence and that the department hadn’t provided a full justification for its actions. Hmmm. One might have thought that a copy of the magazine, at least, could have been uncovered, and if the department hadn’t addressed that aspect of the claim, that’s its lookout.
At the end of the day, it doesn’t make much difference to the outcome. But if you are a free speech law trainspotter, you might be a bit disappointed with the court’s failure to grapple with the proper construction of “objectionable” in this context.
Topics: NZ Bill of Rights Act | 4 Comments »
4 Responses to “Corrections corrected”
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January 27th, 2011 at 11:56 pm
“(I suspect there are serious and under-explored questions about how often prison authorities break the law.)”
I suspect the same – but they wouldn’t see it like that.
Want further evidence for your suspicion. Look at the factual findings in Taunoa v Attorney General (7 April 2004 Wellington HC CIV 2002-485-742 Ronald Young J). So much was going on in that case – prison officials conveniently losing officers’ scroll book, superintendents not doing spot visits etc.
Officials can be good at enforcing the law on others (especially in situations when the power imbalance is most marked), but hopeless when it comes to applying the law to themselves – and often their own want of compliance is not deliberate, most often they just don’t know the rules.
A big problem at the prisons currently is access to lawyers. Lawyers can have great trouble accessing clients in prison. Sometimes staff may seem deliberately obstructive, but most the time they don’t appreciate (as a lawyer may) the importance with access to lawyers. A prisoner has a right on paper (….Corrections Act, BORA) to access a lawyer, it can be pretty meaningless when it is not appreciated – or known – by staff.
January 28th, 2011 at 9:37 am
Yep, I had Taunoa in mind. I watched part of that case being argued. Reporters were there for the first session, but then left and missed lots of juicy stuff, including the lost ledger.
I completely agree about the lack of knowledge of rules. The same applies, I think, to the OIA, especially in less central agencies of government.
I’ve also done prison visits, to Wellington prison. By and large they were pretty good at allowing access. But from time to time they’d lock the prison down and we couldn’t get in for weeks. Still, phone calls to lawyers are allowed.
January 28th, 2011 at 10:42 am
Since it doesn’t seem to be mentioned, I assume the celtic cross was have been confiscated as a gang symbol (white power and all that). FWIW.
January 28th, 2011 at 10:47 am
Yes, it’s a neo-Nazi symbol, but also a Christian one: http://en.wikipedia.org/wiki/Celtic_cross
It would have been fascinating to see a judge work out whether that was offensive! Might it have depended on how many people (or prisoners) would have identified it as a neo-Nazi symbol?