Hudson v Attorney-General - [2020] NZHC 1608

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…

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

Case: [2020] NZHC 1608
Decision Date: 7 July 2020

CaseChat Overview and Summary

Stephen Thomas Hudson, a prisoner serving a life sentence for murder, filed an application for judicial review against the Attorney-General, challenging the decision of the Department of Corrections to prohibit him from receiving copies of FHM and Ralph magazines. Hudson argued that the prohibition of these magazines violated his right to freedom of expression under section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) and that the Department had used an incorrect standard in determining what was objectionable. The Department conceded that the prohibition was not lawful due to the officer's lack of authority and the use of outdated lists.

The court found that the Department's policy to prohibit all issues of the magazines was lawful, as it served the important purposes of maintaining public safety, assisting in the rehabilitation of offenders, and ensuring the safe custody and welfare of prisoners. The court accepted that the magazines could reasonably be considered objectionable due to their sexually explicit content, which could potentially interfere with the prison environment and hinder the rehabilitation of certain prisoners. The court also dismissed Hudson's argument that the Department had incorrectly interpreted the term "objectionable" and that the blanket prohibition was unreasonable. The court concluded that none of the grounds for review were material to the current decisions to prohibit Hudson's access to the magazines, and no relief was appropriate.

Orders