By Steven | June 30, 2011
The Department of Corrections’ decision to ban the Truth from Auckland prison looks unlawful. And typical.
The prison says the ban is based on the content of the paper’s coverage, not on the girly ads. It’s possible (but I would have thought very unlikely) that the ads might fall under the department’s ability to confiscate “objectionable” material. Instead, they say the “sensationalised” and “inaccurate” content of the paper - about some prison disputes, it seems - mean that the effective management of the prison would be compromised. Here’s the thinking:
The publication is seen…as objectionable and detrimental to rehabilitation and reducing reoffending. It does not encourage sentence compliance and normalises and supports criminal beliefs and attitudes.
I haven’t read the paper’s coverage. I suppose it is possible that this is true. But it strikes me as a real stretch. I’d be interested in their evidence. The justification advanced seems vague and self-serving.
And I suspect that they have taken no account of the Bill of Rights, which of course binds them. They’re restricting prisoners’ freedom of expression, which includes the right to seek, impart and receive information of any kind and in any form. (No-one’s saying the prison has to supply the inmates with the paper. The argument is that it has no power to confiscate this material when they are given it.)
Here’s the thing that I doubt the prison took into account. I doubt this, because despite the fact that we’ve had the Bill of Rights for more than 20 years and our highest courts have provided increasingly robust guidance about it, officials and even lower courts routinely fail to take it into account. Restricting speech because of the perceived negative effects of its content requires particularly convincing justification. That’s doubly so when authorities decide to restrict it because of its viewpoint, or because they perceive it to be inaccurate.
The department’s power to confiscate material that may effect the management of the prison is required to be interpreted in this light.
If Corrections want to show me the legal advice they received, and it does take these factors seriously, and contains a compelling case that these newpaper articles are affecting the managment of the prison, I’ll happily eat my words. But they don’t have a very good track record. You’ll remember a Corrections decision to confiscate and destroy a Cosmo mag and some hand-drawn pictures was successfully challenged in court. It suffered the same fate when it tried to ban Ahmed Zaoui from being interviewed by TVNZ for illegitimate reasons.
We’ve got a long way to go before free speech rights really bed down in this country.
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