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…
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- Case
- [2020] NZHC 1608
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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