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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 | Comments Off on Corrections corrected