Hudson v Attorney-General
[2020] NZHC 1608
•7 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-889
[2020] NZHC 1608
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review, the New Zealand Bill of Rights Act 1990, and the Corrections Act 2004, and the Prison Operations Manual
BETWEEN
STEPHEN THOMAS HUDSON
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 8 June 2020 Counsel:
Applicant in person
J B Watson for respondent
Judgment:
7 July 2020
RESERVED JUDGMENT OF DOBSON J
Contents
The factual circumstances [2]
Grounds for challenge [7]
The Department’s response [19]
Challenge to the lawfulness of the prohibition [30]
Infringement of right to freedom of expression [33] The purpose of the limiting measure sufficiently important to justify curtailment? [39] Is there a rational connection between limits on the s 14 right and the purposes of effective management of prisons? [40]
Is the extent of impairment of a s 14 right reasonably necessary? [41]
Is the limit in due proportion to the importance of the objective? [45]
Corrections using wrong interpretation of “objectionable” [50]
Challenge to clause 1.3(b) of the APR – ultra vires the Act? [57] Clause 1.3(b) of the APR and cl 4(b) of the P.05.Res.01 of the POM – ultra vires the Act? [58] Does a blanket prohibition impermissibly fetter a discretion to assess individual issues of the magazines? [63]
Is the decision to categorise the magazines as objectionable unreasonable? [67] Result [77]
HUDSON v THE ATTORNEY-GENERAL [2020] NZHC 1608 [7 July 2020]
[1] This application for judicial review is brought by Mr Hudson, a sentenced prisoner, to challenge the lawfulness of the conduct of officers of the Department of Corrections (the Department) in refusing to allow him to convey a request to a friend outside prison to send to him copies of two magazines. The criticisms advanced include arguments that the magazines were assessed against an incorrect standard as to whether they were objectionable, and that relevant conduct for the Department relied on aspects of delegated legislation that were ultra vires the Corrections Act 2004 (the Act).
The factual circumstances
[2] Mr Hudson is serving a life sentence for murder. Throughout the period relevant to this proceeding, he has been detained at Rimutaka Prison. In January 2018, Mr Hudson submitted a property request form to a Corrections officer for vetting before the request was to be relayed to a friend of Mr Hudson’s in the community. The request was for an electric fan as well as two copies of FHM and Ralph magazines. The Corrections officer who considered the request deleted the reference to the magazines before releasing it for despatch to Mr Hudson’s friend. The identity of the Corrections officer involved is unknown, but the respondent accepts that the step was taken by a person who did not have delegated authority from the prison director to determine that the magazines requested by Mr Hudson constituted prohibited property.
[3] When Mr Hudson became aware that his requests had been rejected before despatch of his communication, he filed a complaint using an appropriate prisoner complaint form. He challenged the prison authorities to provide “the statute or rule such a prohibition relies on and any other direction or justification for such a prohibition”.
[4] In an interview with a Corrections officer about his complaint on 16 February 2018, Mr Hudson was advised that the magazines he had requested were banned from the prison under the Prison Operations Manual (POM). In response to Mr Hudson’s complaint, he was provided with a copy of an email dated 31 December 2012 in which the prison property officer provided an updated list of prohibited magazines, which included a statement that, from the date of that email, the property officer would “no
longer accept FHM and Ralph magazines”. In evidence filed in the proceeding, Ms Vivien Whelan, who is currently the prison director of Wellington District Prisons, accepts that the list provided to Mr Hudson was out of date when Mr Hudson’s request was denied.
[5] Implicitly because it was relevant to his challenge to the decision, Mr Hudson then requested that the Department provide him with a copy of the National Financial System and Infrastructure Guidelines for Prisoner Mail. A version of that was duly provided to him, but Ms Whelan has acknowledged in her affidavit that those were also no longer in use and had been superseded at the time of the conduct in question by the Authorised Property Rules (APR) and the POM.
[6] In the absence of a satisfactory resolution to his complaint, Mr Hudson commenced this judicial review proceeding in November 2018.
Grounds for challenge
[7] The basic premise of Mr Hudson’s challenge was that the Department’s decision to prohibit him access to issues of FHM and Ralph magazines breached his right to freedom of expression as recognised in s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA). Further, that various pieces of delegated legislation or instruments that were arguably relevant to the challenged decision were ultra vires the empowering provisions in the Act.
[8] The primary source of control over prisoners’ property is s 43 of the Act in the following terms:
43 Authorised property
(1)A prisoner may be issued with, or allowed to keep, authorised property subject to—
(a)any condition set out in rules made under section 45A; and
(b)any special conditions imposed by the prison manager relating to the use of the property; and
(c)the condition described in section 44(1).
(2)Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep an item of property if he or she has reasonable grounds to believe that—
(a)the item may be used to injure the prisoner or any other person, or to damage property; or
(b)the item is a camera, tape recorder, or electronic device that may be used to record security features or actions in the prison; or
(c)the item may be used to circumvent practices or procedures in the prison; or
(d)the item has been obtained through coercion of a prisoner or as a result of other improper behaviour; or
(e)the item is objectionable; or
(f)the item may assist a prisoner to—
(i)discover new methods of committing offences; or
(ii)continue offending; or
(g)the item may interfere with the effective management of the prison.
(3)Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep any item of authorised property—
(a)if the prisoner is—
(i)subject to a penalty of forfeiture of privileges imposed under subpart 5 of Part 2; or
(ii)the subject of a direction under section 60 for the reason described in section 60(1)(b) (which relates to assessing or ensuring the prisoner’s mental health); or
(iii)subject to cell confinement imposed as a penalty under subpart 5 of Part 2; or
(b)if the prisoner is detained in a Police jail and, in the opinion of the manager, having regard to the facilities available at the Police jail and the resources available, it is not practicable to allow the prisoner to keep the item; or
(c)in any other circumstances specified in regulations made under this Act or rules made under section 45A.
[9] The requirement for rules about authorised property is separately recognised in s 45A:
45A Rules about authorised property
(1)The chief executive—
(a)must, in respect of all corrections prisons, make rules declaring the items of property that prisoners may be issued with or allowed to keep; and
(b)may make rules imposing conditions that attach to an item of property so declared; and
(c)must publish the rules on an Internet site; and
(d)must make the rules available for public inspection free of charge and for purchase at a reasonable price; and
(e)must give notice in the Gazette whenever rules are made or amended under this section, stating—
(i)the Internet site on which the rules are published; and
(ii)the place where the rules can be inspected; and
(iii)the place where the rules can be purchased.
…
(3)Rules made under subsection (1) or (2) are deemed to be regulations for the purposes of the Regulations (Disallowance) Act 1989 but not for the purposes of the Acts and Regulations Publication Act 1989.
[10] The relationship between ss 45A and 43 of the Act is reflected in cl 1 of the APR as follows:1
Note that the following rules apply pursuant to section 45A of the Act. Only property specified in the schedules contained herein is authorised property that prisoners may be issued with or be allowed to keep in accordance with section 43 of the Act. Prisoners may not be issued with or allowed to keep any other property items.
[11]Clauses 3, 4 and 5 of the APR provide:
3. The fact that an item of property is authorised property does not mean a prisoner has the right to be issued with or allowed to keep, use or wear that property at any time. The issue and use of all property is conditional.
4. A prison director will not issue or allow a prisoner to keep an item of property even if it qualifies as authorised property if:
1 Department of Corrections Authorised Property Rules 2017, cl 1.
a.the prison director considers the item is likely to interfere with the security and good order of the prison (e.g. gang related paraphernalia and any items with gang related colours, symbols or imagery);
b.the prison director considers the item is likely to negatively affect the prisoner’s successful rehabilitation and reintegration; or
c.the item breaches any Act of Parliament or Regulations, Department of Corrections Policy, or restrictions imposed by other government organisations such as the Office of Film and Literature Classification.
5. Note that even where an item of property qualifies as authorised property a prison director is still entitled, under circumstances outlined in the Act and the Regulations, to refuse to issue it or allow a prisoner to keep it. Additional conditions may apply to the issue of clothing and correspondence.
[12] Furthermore, schedule 1, cl 1.3(b) of the APR specifies that no books, newspapers and magazines will be permitted that are “considered to be objectionable eg pornographic”.
[13] Finally, P.05.Res.01 of the POM identifies a number of items that have been designated as non-authorised property and carry potential risks if in the prison environment. Clause 4(b) of the POM in force at the time of Mr Hudson’s request stated that restricted items could include “films, videos, publications, pictures and posters that are considered by the prison director to be objectionable”. The POM currently in force is more detailed, and states that:
…Books are authorised property under rule 1.3(a) of the authorised property rules. Personal pictures are authorised property under rule 5.4(c) of the authorised property rules. But if they are objectionable then the prison director or delegate may wish to consider using their power under section 43(2) of the Correction[s] Act 2004 to refuse to allow the prisoner to keep such items or issue them to the prisoner.
[14] Mr Hudson argued that the existence of a set policy of determining all issues of a particular magazine as prohibited property amounted to the creation of a rule which was inconsistent with the provisions in the Act requiring individual assessments of the items sought to be acquired by prisoners. A blanket prohibition removed the discretionary power that the Department arguably had to exercise, and thereby deprived affected prisoners of the ability to influence the use of that discretionary power.
[15] A further ground of challenge was that the Department’s justification for prohibiting Mr Hudson from having the magazines he had requested applied a wrong test of what was objectionable, as that criteria for refusing to allow a prisoner to have an item of property is provided for in s 43(2)(e) of the Act. Mr Hudson argued that whether a publication was objectionable was to be assessed by the standards adopted under the Films, Videos and Publications Classification Act 1993 (the Classification Act). On the facts here, Mr Hudson asserted that the Classification Office of the Department of Internal Affairs had considered both magazines and found them not to be objectionable. The effect of this aspect of Mr Hudson’s arguments was that the prison director was bound by the decisions that such magazines were not objectionable by virtue of the expert determinations of the Classification Office.
[16] There was no evidence adduced of Classification Office decisions in respect of the magazines. Mr Hudson’s assertions about such rulings were not challenged on behalf of the Department. There is no requirement for non-film publications to be submitted to the Classification Office before their release in New Zealand. A range of items including magazines may be submitted to the Classifications Office by various entities, including the Department of Internal Affairs, Customs and occasionally the courts. The records maintained relate only to magazines that have been submitted for classification.2 A search of the Classification Office on-line records shows that issues of FHM submitted for classification in February 1999, January, February and March 2003 were each classified R16, with other non-monthly publications in 2003 being classified as unrestricted. There is no record of any issues of Ralph magazine having been submitted for classification.
[17] Because a prohibition on his accessing the magazines restricted Mr Hudson’s fundamental right to freedom of expression, he argued that the prohibition decision ought to have been subject to a proportionality test in determining whether indeed the magazines were objectionable.3
2 took this to be an adaptation of the test as to whether a limitation on an NZBORA-protected freedom was no more than was reasonably necessary in terms of s 5 of NZBORA – see [37]–[49] below.
[18] To the extent, if any, that the challenged decision to prohibit the magazines depended on the relevant provisions in the POM, Mr Hudson drew a distinction between the terms of s 43(2) of the Act, which required reasonable grounds to believe such material to be objectionable, and the shorter version in the POM as applying at the time, where the list of prohibited items at cl 4(b) of P.05.RES.01 included publications “considered by the prison director to be objectionable”. Mr Hudson argued that the standard of reasonable belief was objective and therefore capable of challenge, whereas, as he complained was occurring at the prison, when a matter was decided on the consideration of the prison director, it authorised the decision-maker to apply his or her own subjective view that could not then be challenged. Arguably, that difference rendered the provision relied on in the POM to be ultra vires the relevant empowering provision in the Act because it provided for an inconsistent and less exacting standard.
The Department’s response
[19] As noted above, the Department conceded that the decision to prohibit delivery of the magazines was made by an officer without the requisite delegated authority from the prison director. It also conceded that the response to Mr Hudson’s complaint made reference to an out-of-date list of prohibited magazines, and to a procedure for dealing with such decisions that was also no longer being applied.
[20] Ms Whelan’s affidavit explained the sequence of operational rules that have applied and set out her views as to why magazines such as these are not permitted to be kept by prisoners. In her view, possession of such magazines would have the real potential to interfere with the effective management of the prison, and she considers there is a likelihood of their becoming a “form of currency within the prison”.
[21] Secondly, she characterises the magazines as including pictures of half-naked women in provocative poses. Given the prison is one where many prisoners have committed sexual offences or offences of violence against women, such magazines are seen as promoting a view of women “as primarily sexual and subservient beings”. Ms Whelan takes the view that the presence of such material is unlikely to assist and could well harm the rehabilitation of such offenders. She also has a concern that the
content of sexually provocative publications could compromise the safety of female staff working in the prison, including the risk of female staff being offended if they were confronted with material such as is contained in these magazines.
[22] In addition, Ms Whelan expressed concern about articles in such magazines about fighting and violence. Whilst violence is prohibited in the prison environment, it remains a persistent problem and Ms Whelan considers it not appropriate for prisoners to have access to any material that encourages combat of any type. She referred to the organised prison fighting that occurred at the Mt Eden Corrections facility in around 2015. Ms Whelan was also concerned that the magazines contain items that promote the consumption of alcohol. That is banned in prison, but not always with complete success, and in her opinion magazines which promote alcohol consumption should not be in the prison environment. For all these reasons, Ms Whelan supported and sought to justify a decision that such magazines are indeed objectionable in the prison environment.
[23] An affidavit was also completed on behalf of the Department by its chief psychologist, Dr Juanita Ryan. Dr Ryan expressed views about the impact of allowing prisoners access to men’s magazines such as Ralph and FHM. In Dr Ryan’s opinion, access to such magazines “may not be conducive to the Department’s efforts to rehabilitate those in our care”. Rehabilitative efforts include work to reduce attitudes that condone aggressive behaviour or objectification or dehumanisation of women and sexist/gender role attitudes. Dr Ryan cites academic research that empirically links unhealthy attitudes relating to women and aggression towards them to an increased risk of re-offending.
[24] Dr Ryan sees access to materials that promote a focus on sex or places a sexualised lens on other content as not being consistent with reducing sexual pre-occupation and compulsivity. She also raised a concern that such magazines highlight problematic use of alcohol, citing findings before FHM ceased to be published that it was one of the least compliant magazines in relation to Australian alcohol advertising standards. Dr Ryan observed:
Men’s magazines such as Ralph and FHM have as their specific aim the promotion of negative context such as the sexualisation of women and the
glorification of alcohol use. The Department does what is reasonably practicable to restrict prisoner access to this type of content.
[25] The Department appended to an affidavit the contents pages of a small sample of both magazines, with the photo content of the pages redacted. The purpose for doing so was to give an indication of the range of content that could be inferred from the titles of the articles contained in them. The Department resisted producing complete copies of the magazine, where such exhibits would ordinarily be served on Mr Hudson. The Department was concerned to avoid a repetition of an occurrence in 2010 when, in the course of an earlier judicial review proceeding, Mr Hudson was provided with other magazines that were relevant to that proceeding. Against directions from supervising officers, he was found to have removed and attempted to retain certain pages from those magazines.
[26] Mr Hudson’s oral submissions included robust challenges to the standards applied in Ms Whelan’s and Dr Ryan’s affidavits in describing their concerns about the content of the magazines. Mr Hudson submitted that I could not adequately assess the criticisms he advanced without considering a sample of both magazines to assess his competing contentions about the unobjectionable nature of their content. He accepted that if this was to occur, it would not be on terms on which the magazines would also be copied to him.
[27] Evidence for the Department included references to a review that is being undertaken at a policy level as to the guidance to be provided to prison directors and staff in determining what amounts to objectionable material. The prospect of different or refined processes for making such judgements did not have a direct bearing on the issues as I determined them. Shortly before the hearing, Mr Richard Symonds, manager of custodial practice at the Department, affirmed a second affidavit to update the Department’s evidence on the policy work being undertaken, and to explain why delays had occurred in completing that work.
[28] Mr Hudson objected to the late filing of this affidavit. After discussion with Mr Hudson and counsel at the outset of the hearing, it was agreed that I would not read the new affidavit.
[29] After the hearing, I requested complete copies of the issues of the magazines, the contents pages of which had already been exhibited. These were the issues of Ralph for November 2009 and March 2010, and for FHM for August 2011 and January 2012. They were provided to me on 11 June 2020.
Challenge to the lawfulness of the prohibition
[30] As to the immediate circumstances in which Mr Hudson’s request to be sent copies of FHM and Ralph magazine were countermanded, the Department accepts that the action was taken by an unidentified officer without delegated authority to do so, and that it is at least a fair inference that the decision applied a standard requiring their prohibition that was no longer current.
[31] For his part, Mr Hudson acknowledged that a declaration that the particular instance of prohibition was not lawful had no utility for him. Given the Department’s resolve to maintain its entitlement to prohibit his access to such magazines, the essence of his complaint was to challenge the lawfulness of the Department’s entitlement to make such decisions currently and in the future.
[32] Given the grounds advanced for justifying prohibition, it is appropriate to assess the lawfulness of decisions to do so on the basis that they reflect an unwritten or informal policy that any issues of these magazines will be deemed to be objectionable. That is, the Department considers itself entitled to make such a finding without requiring assessment on an individual basis of any particular issues of the magazines that might arrive in the mail for Mr Hudson.
Infringement of right to freedom of expression
[33] Despite his detention, Mr Hudson is entitled to assert his right to freedom of expression under s 14 of NZBORA, which provides:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
This right has been described as “wide as human thought and imagination”.4 Conceptually at least, it is a right that may be invoked to seek access to magazines such as FHM and Ralph.
[34] The lawful extent of limitations on NZBORA rights is provided for in s 5 of NZBORA:
5 Justified limitations
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[35] The context in which Mr Hudson seeks to assert the right inevitably moderates the extent to which the right should be respected. A relevant part of the context is that Mr Hudson is lawfully detained as a punishment that inevitably curtails some of his NZBORA freedoms, and that the extent to which any particular right is curtailed should have regard to the requirement for those supervising Mr Hudson’s detention to maintain good order and security in the prison.5
[36] A proportionality analysis is required in assessing the limits to Mr Hudson’s rights to freedom of expression and that is to be undertaken against the “back cloth of the prison environment”.6 In undertaking that analysis, some deference may be accorded to the expertise and experience of those charged with controlling the prison environment when determining the appropriate extent of limitation on Mr Hudson’s s 14 right. Ultimately however, the issue of whether the relevant limitation on Mr Hudson’s s 14 right is justified is a matter of judgment for the Court.
[37] The parties argued whether a policy prohibiting access to any issues of the magazines was a justifiable limitation on Mr Hudson’s right to freedom of expression by reference to the tests articulated by Tipping J in Hansen v R.7 That sequence of considerations is as follows:8
4 Moonen v Film and Literature Board of Review [2002] 2 NZLR 9 (CA) at [15].
5 Taylor v Chief Executive of the Department of Corrections, [2015] NZCA 477, [2015] NZAR 1648 at [89].
6 Hirst v Secretary of State for the Home Department [2002] EWHC 602 at [31]. See also Taylor v Chief Executive of the Department of Corrections, above n 5, at [83].
7 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [92].
8 At [104].
(a)does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)(i) is the limiting measure rationally connected with its purpose?
(ii)does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(iii)is the limit in due proportion to the importance of the objective?
[38] This approach was an adaptation of the approach of the Supreme Court of Canada in R v Oakes.9
The purpose of the limiting measure sufficiently important to justify curtailment?
[39] The measures in the Act that authorise limits on prisoners’ NZBORA rights, and the delegated legislation promulgated pursuant to them, reflect the importance of the maintenance of public safety in managing persons under control or supervision.10 A key purpose of the Corrections system is to assist in the rehabilitation of offenders and to provide for their re-integration into the community.11 The overall purpose of enabling effective management of prisons, and the safe custody and welfare of prisoners whilst detained there, is clearly of sufficient importance to justify a measure of curtailment of NZBORA rights, including the s 14 right to freedom of expression.
Is there a rational connection between limits on the s 14 right and the purposes of effective management of prisons?
[40] Mr Hudson accepted that there was justification for forbidding prisoners from having access to genuinely objectionable materials, such as materials inciting violence or promoting hard drug use. In such circumstances, there is therefore a rational connection between the measures that limit the s 14 right and the overall purpose of the Act and delegated instruments. That acknowledgement did not contradict the essence of Mr Hudson’s arguments that, for various reasons, an incorrect standard of what constitutes objectionable material was applied to the magazines in question.
9 R v Oakes [1986] 1 SCR 103.
10 Corrections Act 2004, s 6(1)(a).
11 Corrections Act 2004, s 5(1)(c).
Is the extent of impairment of a s 14 right reasonably necessary?
[41] It was implicit in Mr Hudson’s submissions that he recognised a reasonable necessity for the prison to be able to prevent prisoners having access to materials that he would accept were genuinely objectionable. As an alternative to arguing that these magazines could not reasonably be classified as objectionable, Mr Hudson argued that to the extent they were, a need would arise to keep them away from a small section of prisoners, such as sexual offenders, but that requirement could not justify their being prohibited generally. Arguably, he could be afforded access in a part of the prison away from those needing to be excluded from exposure to the magazines, so that his s 14 right to access such material need not be limited in this way.
[42] Ms Whelan deposed that the limit on resources in what is a small and closed community would make it difficult to prevent such magazines being transferred to others throughout the prison. Their presence anywhere posed a potential threat to the rehabilitative initiatives for some prisoners and more generally some content could encourage disobedience of necessary rules as to prisoners’ conduct.
[43] Ms Whelan took the view that of all materials that prisoners might have access to, it was a relatively small component that were deemed objectionable, and that the extent of constraint of the s 14 right was therefore limited by the narrow scope of what was prohibited.
[44] Subject to analysis of Mr Hudson’s separate grounds for challenging the standard by which the magazines were assessed as objectionable, I accept that the approach adopted by Corrections to exclude the magazines on the ground that they were objectionable is no more than a reasonably necessary impairment of the s 14 right.
Is the limit in due proportion to the importance of the objective?
[45] Consistent with my analysis on the previous questions, I am satisfied that the extent of the limit on Mr Hudson’s s 14 right is proportionate to the legitimate objectives of carrying out the purposes of the Act. The affidavits of Ms Whelan and Dr Ryan demonstrate the concerns that would arise in management of prisons and
optimising the rehabilitative initiatives which would be undermined if those managing prisons could not prohibit objectionable materials.
[46] A further consideration is that the relative importance of upholding an individual’s s 14 right may take into account that not all types of speech or expression are to be attributed equal value when assessing whether the s 14 right is improperly infringed. As the Court of Appeal observed in Taylor:12
[70] While s 14 of the Bill of Rights protects information and opinions “of any kind in any form”, the nature of the information or opinions to be imparted and the reasons relied upon by those seeking to do so is relevant when considering whether a limit on the right is justified. As Lord Steyn observed in Simms, not all types of speech have an equal value. For example, Lord Steyn said a prisoner would never be permitted to have interviews with a journalist to publish pornographic material or to indulge in “hate speech”. Nor, given the purpose of a sentence of imprisonment, could a prisoner claim to join in a debate on the economy or on political issues. In cases of that kind, the prisoner’s right to free speech would be outweighed by deprivation of liberty and the need for discipline and control in prisons. …
[47] There can be no precise ranking of the relative importance of the right when sought to be expressed in relation to varying types of material, and low value expression is still expression.13 However, in cases where the courts have upheld a prisoner’s right to freedom of expression, they generally related to a higher form of expression than access to men’s magazines such as those in issue in Mr Hudson’s case. A contrast may be drawn with cases where prisoners were complaining of being denied access to journalists for media interviews where there is likely to be recognition of a higher right to freedom of expression and lower concerns about undermining Corrections’ management of prison environments.14
[48] To the extent that a substantial portion of the content of the magazines (and no doubt a major selling point for purchasers of the magazines) is scantily clad young women in sexually provocative poses, they appear to qualify at the “softer” end of the
12 Taylor v Chief Executive of the Department of Corrections, above n 5 (footnotes omitted).
13 Attorney-General v Smith [2018] NZCA 24; [2018] 2 NZLR 899 at [38].
14 Compare Watson v Chief Executive of the Department of Corrections [2016] NZHC 1996; Taylor v Chief Executive of the Department of Corrections, above n 5; Television New Zealand Ltd v Attorney-General (2004) 8 HRNZ 45 (CA).
spectrum of pornography. Withholding pornography has been considered in the context of patients at a forensic hospital, where Ellis J observed:15
[455] And even if s 14 is engaged here, it is trite that pornography is a low value form of speech, interference with which will be relatively easily justified under s 5. As Lady Hale said in Miss Behavin’ v Belfast City Council:
… there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast city centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law.
[49] It follows that a policy prohibiting prisoners having access to objectionable material is a justified limitation on Mr Hudson’s right to have access to materials of his choice.
Corrections using wrong interpretation of “objectionable”
[50] A recurring theme of Mr Hudson’s submissions was that the test for whether items are objectionable for the purposes of s 43(2)(e) of the Act required the Department to apply the test for that word as used in the Classification Act. Mr Hudson reasoned that the Classification Act preceded the Act, and that Parliament must be assumed to have used the same word consistently where it appeared in both statutes. He argued that Corrections had made an error of law, and the application of a different interpretation of what constituted objectionable material was ultra vires the scope of the powers under s 43.
[51] It is well-settled that Parliament cannot be presumed to have used words or phrases in one statute on the premise that they would be interpreted consistently with those words or phrases where used in other statutes. As the Court of Appeal observed in Barrie v R:16
… Unless expressly adopted, the meaning given to a word in one piece of legislation is not affected by the meaning given to that same word in a different enactment. The courts have warned against the dangers of reasoning by analogy in statutory interpretation, especially between statutes dealing with different subject-matter. …
15 S v Attorney-General [2017] NZHC 2629 (footnotes omitted).
16 Barrie v R [2012] NZCA 485, [2013] 1 NZLR 55 at [36] (footnotes omitted).
[52] The correct approach is to ascertain the meaning of an enactment from its text and in light of its purpose, having regard to context.17
[53] In this case, the two statutory contexts are materially different. The purposes and principles of the Act as set out in ss 5 and 6 include the maintenance of public safety and assisting in the rehabilitation of offenders, with importance inevitably given to the safe custody and welfare of prisoners. In contrast, the Classification Act provides for circumstances in which, and terms on which, statutory powers are exercised to censor the content of films, videos, books and other publications. Those different purposes require the interpretation of what is meant by “objectionable” where it appears in both statutes to reflect different perspectives.
[54] In support of his argument that the interpretation of “objectionable” in the Classification Act had to apply where the same word was used in the Act, Mr Hudson pointed out that the criteria for what may be considered objectionable under P.05.02.(I)(i) and (ii) of the POM are in virtually identical terms to subss (2) and (3) of s 3 of the Classification Act. Given the subject matter, it is understandable that there would be substantial common ground in identifying the scope of considerations that might apply. However, that does not require the interpretation from one context to necessarily be applied in the other.
[55] Because adoption of the interpretation of objectionable from the Classification Act would lead to a smaller intrusion into Mr Hudson’s right to freedom of expression under s 14 of NZBORA, he argued that it was an alternative to a different interpretation that would involve greater intrusion into his s 14 right. Accordingly, because s 6 of NZBORA requires an enactment to be given the meaning that is more consistent with NZBORA rights and freedoms, the Classification Act interpretation is, in Mr Hudson’s submission, to be preferred.
[56] I do not accept that s 6 of NZBORA can be invoked in the way Mr Hudson contends. If his access to magazines is constrained because they are found on reasonable grounds to be objectionable when tested for the purposes of s 43 of the Act,
17 Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Ltd [2007] NZSC 36 at [22].
that outcome cannot be challenged on the ground that a different (more “rights friendly”) interpretation of objectionable is to be adopted because it is recognised as applying in a different statutory context.
Challenge to clause 1.3(b) of the APR – ultra vires the Act?
[57] The term “objectionable” is also used in sch 1, cl 1.3(b) of the APR. Mr Hudson advanced an argument that because the term “objectionable” should, on his analysis, be attributed its meaning under the Classification Act, that meant that cl 1.3(b) of the first schedule to the APR went outside the scope contemplated by the Act and was therefore ultra vires. That argument cannot succeed. Parliament cannot be attributed with the intention to apply consistent interpretations to expressions used in different statutory contexts. There is no viable challenge to the vires of the APR on that ground.
Clause 1.3(b) of the APR and cl 4(b) of the P.05.Res.01 of the POM – ultra vires the Act?
[58] In an alternative to the question just considered, Mr Hudson argued that even if “objectionable” was to be given its own meaning under the Act, under s 43(2)(e) decision-makers must have reasonable grounds for believing that material was objectionable. In contrast, both cl 1.3(b) of APR and cl 4(b) of the relevant part of the POM authorised decisions on material being objectionable if the decision-maker considers them to be so. Mr Hudson submitted that the absence of a requirement for reasonable grounds for such a decision changed the relevant test and, in conferring a wider discretion on prison managers, these provisions went beyond what Parliament intended.
[59] Analysis of a challenge to the vires of delegated legislation involves three steps, as recently described in Commercial Fishers Whanau Inc v Attorney-General:18
[15] The law in relation to challenging the validity of regulations is well settled. The first step involves construction of the Act under which the regulation purports to be made. This requires analysis of the scope of the authority conferred by Parliament in light of the purposes for which those powers were conferred. Where Parliament has given the Executive a broad
18 Commercial Fishers Whanau Inc v Attorney-General [2019] NZHC 1204 (footnotes omitted).
power to regulate, it is a power to carry out the purposes of the empowering legislation and the Executive’s discretion is constrained by those purposes.
[16] The second step is to determine the meaning of the regulations, and the third step is to decide whether the regulations comply with the empowering Act.
[60] In this case, s 45A of the Act requires the chief executive to make rules declaring the items of property that prisoners may be issued with or allowed to keep. The terms of such rules must reasonably conform with the over-arching purposes of the Act and relevant principles, which include the safety and good order of the prison and fair treatment of the prisoners. I am satisfied that the evident purpose of the two provisions challenged on this ground do come squarely within the purposes for which such rules are to be made.
[61] Turning to the interpretation of the provisions, I am not persuaded that there is any material difference between the requirement for a decision-maker to have reasonable grounds for believing that material is objectionable, and a decision being made where the decision-maker considers the material to be objectionable. The reasonable interpretation of the clauses, given their derivation from the Act, makes it clearly implicit that there must be reasonable (and relevant) grounds for considering material to be objectionable. Such decisions would be capable of challenge if they were made on grounds that were arbitrary, irrelevant or irrational.
[62] I do not consider the difference in wording to be material. It follows that the clauses requiring a decision-maker to consider materials to be objectionable do not take them outside the vires of an Act that contemplates decision-makers must have reasonable grounds for a decision that material is objectionable.
Does a blanket prohibition impermissibly fetter a discretion to assess individual issues of the magazines?
[63] Mr Hudson characterised a blanket rule that all issues of Ralph and FHM magazine were considered objectionable as “a policy”. He argued that was unlawful because it deprived prisoners of the opportunity on individual occasions to contend that a particular issue of one of the magazines did not have content that rendered it objectionable.
[64] The Department’s response to this criticism was that if the content of a sample of issues of the magazine justified a decision that they were objectionable, then a generic assessment was sufficient. Given the scale of tasks required of those managing prisons, it was arguably not realistic to impose an obligation on delegated officers to consider the content of any particular issue of the magazines when received at the prison.
[65] The terms of s 43 of the Act do contemplate individual consideration of an “item”. That arguably suggests an obligation to deal with items individually. However, the terms of s 43 are to be read with s 45A, which provides for rules that must be made declaring, among other things, the items of property that prisoners may be allowed to keep. That contemplates exclusions from such permissible items by category or generic description. The rules made under s 45A are also cast in those terms.
[66] I consider that, taken together, these provisions do contemplate the lawful definition of categories of items that prisoners will not be allowed to keep. Such categories include identified magazines that, on a reasonable sampling of some issues of the magazines, are determined on reasonable grounds to be objectionable.
Is the decision to categorise the magazines as objectionable unreasonable?
[67] In his amended statement of claim, Mr Hudson did not plead that the decision that FHM and Ralph magazines were objectionable was unreasonable in the administrative law sense. Nor did he foreshadow an argument to that effect in his written submissions. However, in his oral submissions, Mr Hudson was highly critical of the standards applied by Ms Whelan and by Dr Ryan in the grounds they cited in their affidavits to justify a decision that issues of these magazines are objectionable for the purposes of the Act and the delegated instruments made under it.
[68] The classic test for unreasonableness in administrative law is that the decision made in exercise of a statutory power was not one that a decision-maker correctly informed as to the applicable law and the facts could reasonably have arrived at.19
[69] Ms Whelan’s concerns included that such magazines are likely to be highly desirable property among prisoners, resulting in the risk of stand-over tactics to forcibly take them from prisoners, and the prospect of the magazines being used as “currency” for trade among prisoners for other items. Mr Hudson dismissed such concerns as fanciful. He argued that such magazines as have not been declared objectionable under the Classification Act are no big deal among prisoners and he would have no hope of trading issues of the magazines for other prohibited items.
[70] Ms Whelan expressed concerns that a dominant theme of the magazines is the objectification of women as primarily sexual beings. Such themes are likely to have adverse impacts on the rehabilitation of sexual offenders and those who have committed violence against women. She also expressed a concern that sexually provocative content can influence the prison environment negatively, potentially to the detriment of female staff working there.
[71] Mr Hudson cited statistics of the prison population from 2007, which suggests that of a total prison muster of 9,552, 453 prisoners were imprisoned for “sexual assault and related offences” – some four per cent of the total. Mr Hudson argued that the sexual content of the magazines of concern to Corrections could only have an adverse impact on rehabilitation for sexual offenders, and that their modest numbers enabled their segregation so that inadvertent exposure of sexual offenders to such magazines could reasonably be prevented.
[72] Ms Whelan also raised concerns about other content of the magazines that encouraged violence and irresponsible drinking. Mr Hudson disputed that the advertising for liquor and items referring to its consumption was any worse than the way in which that subject was dealt with in numerous mainstream magazines where Corrections had not contemplated classifying them as objectionable. He also disputed
19 Waitakere City v Lovelock [1997] 2 NZLR 385 (CA); Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA).
that articles about such topics as fight clubs in Moscow could add materially to the risks of violence within the prison environment. In his view, if prisoners were going to fight they would do so, irrespective of whatever content of magazine articles they might be exposed to.
[73] Dr Ryan expressed concerns from her perspective about the sexualised content of the magazines and their promotion of unhealthy attitudes relating to alcohol. She cited published research in Australia that FHM, in the period prior to its ceasing publication, was found to be one of the least compliant magazines in relation to Australian alcohol advertising standards. I described her concerns, which were addressed in relatively general terms, at [23] above. Dr Ryan also saw such magazines as containing problematic attitudes towards abuse of alcohol and other drugs.
[74] Mr Hudson criticised these concerns as being expressed in general terms about “men’s magazines”, with little indication that Dr Ryan had specifically considered FHM and Ralph content. He submitted that Dr Ryan had treated them as part of a category of magazines including publications such as Playboy, which Mr Hudson sought to distinguish on the basis of their having been classified under the Classification Act for restricted audiences.
[75] An aspect of Mr Hudson’s argument was that s 29(1) of the Classification Act requires determinations as to whether any publication is objectionable, where that issue arises in any civil or criminal proceedings, to be referred to the Classification Office for decision:
29 Character of publications arising in court proceedings
(1)Except as provided in subsections (2) and (3), where in any civil or criminal proceedings before a court (including any proceedings under section 116 but not including proceedings under section 67) a question arises whether any publication—
(a)is objectionable; or
(b)is objectionable except in any 1 or more of the following circumstances:
(i)if the availability of the publication is restricted to persons who have attained a specified age:
(ii)if the availability of the publication is restricted to specified persons or classes of persons:
(iii)if the publication is used for 1 or more specified purposes,—
the court shall refer the question to the Classification Office for decision, and the Classification Office shall have exclusive jurisdiction to determine the question.
[76] That provision cannot apply in judicial review. In context, the scope of civil or criminal proceedings referred to involves various forms of proceedings that might arise under the Classification Act. The jurisdiction of the Classification Office extends to being the arbiter of what is objectionable for all purposes under the Classification Act, but not beyond that.
Result
[77] Assessing the content of FHM and Ralph magazines by the two issues of each provided subsequent to the hearing, I have considered the various concerns raised. The issues of Ralph magazine devote materially more of their pages to photographs of bikini-clad women, and there is a greater emphasis on sexual matters with sexually suggestive commentary, as well as items such as “Best Butts” and “Steamy Foreplay Secrets”.
[78] Both magazines were published by ACP Magazines Limited in Australia and from the two issues of FHM provided it appeared to have a somewhat more restrained tone to the sexualised content, which is no doubt designed to appeal to young men. The FHM magazines appeared also to have somewhat greater diversity of other subject matter. Both publications have content that celebrates excessive drinking and training for, and involvement in, physical violence.
[79] The fact that Ms Whelan and Dr Ryan made no attempt to distinguish the content of the two magazines does tend to support Mr Hudson’s submission that there was inadequate individual assessment of the character of their content.
[80] However, Mr Hudson’s criticisms of the standards adopted in Ms Whelan and Dr Ryan’s affidavits cannot be made out. Bearing in mind the purpose for which the
assessments are to be made, I am satisfied that the grounds for concern expressed in relatively general terms are warranted. Accordingly, Mr Hudson could not make out an additional ground for challenge that the decisions in respect of the magazines adopted at a general level were unreasonable in the administrative law sense.
[81] It follows that none of the grounds for review that would be material to current decisions to prohibit Mr Hudson’s access to FHM and Ralph magazines can be made out.
[82] No relief is appropriate in respect of the admitted historical errors when the issue was originally dealt with, but that is a factor in my determining that there should be no order as to costs.
Dobson J
Solicitors:
Crown Law, Wellington for respondent
Copy to:
The applicant
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