Issue one: should relief have been granted in respect of the initial decision by the Corrections officer to censor Mr Hudson’s property request?
[37]
Submissions
[37]
Discussion
[40]
Issue two: when interpreted in accordance with the Bill of Rights, do s 43(2)(e) and (g) of the Act empower the prison manager to restrict Mr Hudson’s access to the magazines he requested?
[45]
What does this issue require us to address?
[47]
Appropriate methodology
[51]
Is the limit prescribed by law?
[55]
Proportionality assessment
[58]
Submissions
[58]
Discussion
[63]
Relief
[74]
Result
[78]
Introduction
The Corrections Act 2004 (the Act) empowers prison managers to impose restrictions on prisoners’ access to property.[1] Two such restrictions are contained in s 43(2)(e) and (g) of the Act, which, respectively, enable a prison manager to refuse to issue or allow a prisoner to keep an item of property if he or she has reasonable grounds to believe that the item is objectionable, or may interfere with the effective management of the prison.
[1]Corrections Act 2004, ss 43–45A.
This appeal concerns the proposed exercise of those powers to prevent Mr Stephen Hudson—a prisoner at Rimutaka Prison—from accessing two magazines: one FHM magazine and one Ralph magazine. Mr Hudson’s request for these magazines was initially unlawfully censored by an unidentified officer of Ara Poutama Aotearoa | the Department of Corrections (Corrections). However, Corrections seeks to maintain its entitlement to restrict prisoners’ access to magazines like the ones Mr Hudson requested—magazines which fall into the genre known as “lad mags” or men’s magazines, and which are, it was common ground, generally available on an unrestricted basis to the wider public. It says, among other things, that these magazines might interfere with the rehabilitation of prisoners, and could become a form of currency in prison, with associated risks.
Mr Hudson commenced a proceeding in the High Court seeking to challenge Corrections’ ability to restrict prisoners’ access to these magazines. He claimed, among other things, that the restriction breached his right to freedom of expression, protected under s 14 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), and was ultra…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hudson v Attorney-General [2023] NZCA 653
Case
[2023] NZCA 653
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, Stephen Thomas Hudson appealed against the decision of the High Court that denied his claim that Corrections' restriction on his access to FHM and Ralph magazines violated his right to freedom of expression under section 14 of the New Zealand Bill of Rights Act 1990. The appeal focused on two issues: whether relief should have been granted concerning the initial decision by the Corrections officer to censor Hudson's property request, and whether sections 43(2)(e) and (g) of the Corrections Act 2004, when interpreted in accordance with the Bill of Rights, empowered the prison manager to restrict Hudson's access to the magazines. The Court of Appeal found that the High Court did not err in declining to grant relief in respect of the initial decision by the Corrections officer, as Hudson had effectively abandoned his plea for such relief. Regarding the second issue, the Court of Appeal concluded that the restriction on Hudson's access to the magazines did not represent a demonstrably justified limit on his right to freedom of expression, as the evidence provided by the Attorney-General did not sufficiently justify the restriction. The appeal was allowed, but no order for relief was made. The respondent was ordered to pay costs for a standard appeal on a band A basis and usual disbursements.