Mitchell v Attorney-General [2014] NZHC 1339 (16 June 2014)

Last Updated: 20 June 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-9434 [2014] NZHC 1339

UNDER	The Judicature Amendment Act 1972
BETWEEN	KERRYN MITCHELL Plaintiff
AND	ATTORNEY-GENERAL First Defendant CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Second Defendant

Hearing:	26 May 2014
Counsel:	Plaintiff in person (by AVL) C A Griffin with M J Cameron for Defendants
Judgment:	16 June 2014

_{JUDGMENT OF THE HON JUSTICE KÓS}

[1] The plaintiff is a prisoner. She has been allowed to keep a private television set in her cell. But new rules mean possession of private sets will be prohibited. Instead, prison-owned sets will be rented to any prisoner who wants one. The rental will be between $0 (if the prisoner qualifies for a full financial hardship discount) and $2.00 per week. The plaintiff brings these proceedings to challenge the removal of her private set, and the introduction of the new rental scheme.

[2] Did the plaintiff have the right to retain her private television set throughout her term of imprisonment? Are the rules creating the new rental scheme lawful? Is the application of those rules to the plaintiff lawful?

[3] The answers I reach to these questions are: no, yes and, so far, yes. A more detailed summary of my conclusions appears at [68].

MITCHELL v ATTORNEY-GENERAL & ANOR [2014] NZHC 1339 [16 June 2014]

Background

[4] Ms Mitchell was sentenced to 25 months’ imprisonment for intentional damage and breach of a protection order. She entered Arohata Prison, Wellington, in December 2012.¹ Later she transferred to Auckland Region Women’s Corrections Facility.² That was in September 2013. Parole was declined in March 2014. She is due for release in January 2015. Other pending charges may postpone that, however.

[5] After arriving at Arohata Ms Mitchell requested use of her television set. Regulations at the time permitted prisoners to have their own television sets in their cells.³ Her request was approved, and a friend dropped the set off. It is a “well worn” cathode ray tube set. Old style, not flat screen. Ms Mitchell paid $18 for a security and electrical safety check. The former because these sorts of sets are often used to conceal contraband.

[6] Ms Mitchell signed a form acknowledging receipt. But she refused to sign a second form. That said, inter alia, “I agree to comply with any specified condition relating to the use of an item of property”. Such acknowledgment is specifically required – by s 44(1)(d) of the Corrections Act 2004⁴ – before property is issued to the prisoner. Refusing to sign meant Ms Mitchell had no entitlement to receive her set. Notwithstanding, the set was still delivered to her.

[7] Prison-owned televisions in cells are common in a number of countries.⁵ In some countries they are provided free of charge. In others a small rental charge is levied. In 2011 Serco New Zealand was contracted to manage Mt Eden Prison. It introduced a television rental scheme there.

[8] In April 2012 the Corrections Department developed a proposal to introduce a similar scheme throughout all New Zealand prisons.

_{[9] A number of considerations underlay that proposal.}

¹ _{As to which, see Mitchell v Attorney-General [2013] NZHC 2836.}

² _{Herein, “ARWCF”.}

³ _{Providing they met certain technical criteria as to size and output.}

⁴ _{Herein, “the Act”. Section 44(1) is set out at [31] below.}

⁵ For instance Australia, the United Kingdom, Ireland, Belgium and the Scandinavian countries.

[10] The first is that private television sets are used to import and hide contraband. Television sets are opened on arrival and checked. Then they are resealed by Corrections officers. But contraband may still be concealed subsequently. Evidence showed approximately 370 incident reports per annum involving prisoner televisions. Of these, 130 related to contraband. Sets are also sometimes modified illegally. Slots for media cards or USB sticks can be added. Wi-Fi, connectable via a network port or contraband 3G mobile phone, can be installed. Again, contrary to regulations. The new prison-owned sets eliminate these problems. They have a fully transparent sealed plastic case. Contraband and attempted modifications are easily detected.

[11] The second consideration is access. Prisoners do not arrive at prison carrying a television set. It takes some time for sets to be sourced and approved. Security checks can take between two and four weeks to be completed. Remand, short-stay and youth prisoners may have no in-cell television access at all while in prison. Remand prisoners make up 20 per cent of the prison population. Many remand prisoners are released before they can access a television. Figures from AWRCF indicate that about 70 per cent of its remand prisoners do not have televisions. Youth prisoners generally lack sufficient funds to access a private television. Pool televisions are available only on a limited basis, and not in cells. As to youth prisoners, Ms Leota, an Assistant General Manager at the Department, says:

This is a vulnerable section of the prison population, where access to a television for their first nights can be a valuable distraction and reduce a level of anxiety and stress the prisoner may be experiencing on their initial imprisonment.

[12] The third consideration, related to the first, is the number of incidents involving prisoner televisions. These include vandalism, stand-over and other intimidation tactics to take possession of others’ sets.

[13] The fourth consideration is cost. The estimated cost of managing private television sets across the Department is about $455,000 per annum.

[14] The Department proposal received ministerial approval in July 2012, and formal implementation approval in August 2013. An indicative cost of $2.00 per

week was suggested.⁶ That is significantly less than the equivalent market rental. But direct comparison is unrealistic. The basic prison weekly allowance is just

$2.70. That can be supplemented by prison work – up to a maximum of $18.40 a week.⁷

[15] There is evidence of a wide consultation process by the Department. Those consulted included the Ombudsmen, prison interest groups (including the Howard League for Penal Reform), prison staff, and prisoners themselves. For instance, a flyer (“prisoner information sheet”) was distributed in September 2012. It advised private sets would be removed, and that the rent would probably be $2.00. Questions from prisoners were invited. Another sheet, probably from August 2013, is more detailed, but broadly similar.

[16] The first prison at which the rental scheme was to be implemented was Christchurch Men’s Prison. Removal of private sets and installation of rental sets began in late November 2013. Prison managers met representatives of the Howard League earlier that month. The meeting produced this response from the Howard League’s Dr Jarod Gilbert:

Thanks to you and Steve for the meeting yesterday regarding the new tv policy. We are encouraged by the consultation on this and see it as further evidence of good, constructive relationships between Canterbury Prisons and the NGO sector.

We were impressed with the manner in which you have gone about implementing this new policy. We note efforts to monitor issues around financial hardship and access to tvs, and the fact that any surpluses will be earmarked for programming the in-house education channels.

While we recognise the fact that some existing prisoners will feel disadvantaged by the policy, overall we feel in the medium term and beyond it will be viewed positively.

The Howard League did note a concern about lack of subtitling for deaf prisoners.

[17] Although introduction of the new scheme was effectively a fait accompli from August 2013, the Departmental consultation process produced two major

_changes.

⁶ _{Or $1.00 each in a double cell.}

⁷ Prisoners released to work in the community can earn considerably more than that.

[18] First, an introductory 90 day rent-free period was introduced. At the end of the 90 days, prisoners needed to elect whether to pay rent or opt out of the scheme and have the prison set removed. In the latter event, television access would be limited to pool televisions in designated common areas. The rent-free period was a feature of the scheme from the time sets were first installed. Prisoner flyers (now called “factsheet for prisoners”) preceding implementation at Christchurch Mens Prison refer prominently to the rent-free period.

[19] Secondly, as the email from the Howard League indicates, consideration was being given in late 2013 to introducing a financial hardship scheme. Particularly affected were prisoners earning only the basic weekly allowance of $2.70.⁸ In December 2013 prisoners were advised that they could seek reduced rents where there was financial hardship. Considerable effort was put into devising this change. An initial hardship policy was issued in February 2014. It was reissued (with

modifications) in March 2014.

[20] The financial hardship policy now provides an automatic 50% rental reduction where the average weekly funds available to the prisoner are less than

$5.40. That reduction can be applied even where the prisoner has more than that, “if the prison manager considers it is appropriate to meet the prisoner’s reasonable financial needs”. The rental fee may be waived altogether where the prisoner’s income “is not considered by the prison manager to be sufficient to meet the prisoner’s reasonable financial needs”.

[21] Ms Mitchell receives only the basic $2.70 weekly allowance. Accordingly, if she opts into the scheme (which she will need to do after July if she wants television in her cell):

(a) she will not have to pay anything for the first 90 days;

(b) her rental after that can be no more than $1.00 per week; and

(c) it may yet be reduced to $0.

[22] The rental scheme is to be reviewed at the end of this year. One issue being considered is whether an adjustment should be made where a prisoner has been paid rent for three years, and the set is still in good order. That is because three years’ rent should meet fully the cost of purchase and installation. The average life of sets, in a prison context, is not expected to exceed three years.

[23] Fairly, Ms Mitchell acknowledges that the scheme is unlikely to earn the Department any significant profit. To the extent there is a surplus, the Department’s intent is that it be reinvested in creating or purchasing further content. The technical system introduced has two spare channels. Ultimately one or both may be used to provide educational content for prisoners.

[24] The evidence suggests the scheme has been generally well received by prisoners. At AWRCF, 94% of those surveyed wished to opt in. As Ms Cheryl Mikaere, the Manager of that prison puts it:

That high percentage is consistent with the general positive mood among prisoners at ARWCF towards the potential benefits of the rental scheme. The ability to access a modern flat screen television with quality reception which our prisoners might not otherwise be able to afford is being welcomed. I am not aware of any complaints about the upcoming scheme from any prisoner other than Ms Mitchell.

[25] The longest history now is at Christchurch Mens Prison. Only there have prisoners actually paid rentals. It has 855 prisoners. Currently 482 are paying rent. But that does not mean the other 373 have opted out. Many, probably most, are still in a rent-free period. That of course depends on individual arrival at the prison, not the time the scheme commenced. There have been six applications for rent reduction or waiver under the financial hardship scheme. Four have been approved, and two

declined.⁹

[26] Returning, then, to Ms Mitchell, her set will be removed from her cell in July. If she enrols in the rental scheme, a prison set will be installed. Her own set will, as I understand it, be stored until release. In this proceeding she challenges its

_{impending removal. She says she has the right to continue to possess her own set:}

⁹ Half the prisoners at Christchurch Mens are in paid employment. The two applicants declined

were “above monetary threshold”.

I brought this proceeding to stop them taking away my TV set. It’s as simple

as that.

Statutory framework

[27] It is convenient to look at the statutory framework for in-cell property management first. That has to be divided into pre and post-4 June 2013. I will then consider the wider regime as to the rights of prisoners to property and information. That must inform any change to the regulatory regime.

In-cell property management prior to 4 June 2013

[28] Prior to 4 June 2013, s 43(1) of the Act provided:

43 Authorised property

(1) A prisoner may be issued with, or allowed to keep, any property declared to be authorised property by regulations made under this Act subject to –

(a) the condition described in section 44(1); and

(b) any special conditions imposed by the prison manager relating to the use of the property; and

(c) any condition set out in regulations made under this Act.

[29] At the time, “authorised property” was defined as follows:¹⁰

Authorised property means any property that is –

(a) Specified in this Act or in regulations made under this Act as property that may be issued to a prisoner; and

(b) Kept by, or retained on behalf of, the prisoner in accordance with this Act and any regulations made under this Act.

The Corrections Regulations 2005 then provided that a television set (subject to certain constraints) was authorised property, permitted to be kept in cells.

[30] Section 43(2) provides, still, that consent for particular items might yet be refused on various grounds. For instance where the item might be used to injure

persons or damage property. And s 43(3) provides for refusal of consent to keep authorised property if the prisoner is (for instance) subject to penalty of forfeiture of privileges.

[31] Finally, s 44(1) provides:

Standard conditions of issue and transfer of issued items

(1) The condition referred to in section 43(1)(c) is that, before the item is issued to the prisoner, the prisoner must acknowledge in writing that—

(a) the prisoner accepts full responsibility for the property; and

(b) the corrections authorities are not liable for any loss of, or damage to, the property; and

(c) the property may not be transferred to another prisoner without the prior approval of the prison manager; and

(d) the prisoner will comply with any special conditions imposed under section 43(1)(b).

As noted earlier, Ms Mitchell refused to sign the acknowledgement required by s 44(1) for her set.

In-cell property management from 4 June 2013

[32] With effect from 4 June 2013 a new s 45A was inserted into the Act. Section

43(1)(a)¹¹ was amended to refer to any conditions set out in rules made under s 45A. Section 45A(1) then provided:

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.

[33] The definition of “authorised property” was amended:

Authorised property means property that is declared by rules made under s

45A as property that may be issued to a prisoner.

It follows from this that only authorised property covered by rules made under s 45A

may be kept in cells.

[34] On 4 June 2013 the Chief Executive issued a set of rules which continued the existing regime under which Ms Mitchell had been able to have her own television set in her cell. These were replaced with a new set of rules on 22 November 2013.

[35] Schedule 2.4 of those rules provides that the “only television a prisoner is permitted to keep in his or her cell is a prison-owned and issued television”. There follows then a technical description of the approved form of television. As it is a prison-issued television, the exact technical description is perhaps beside the point. Two exceptions are provided. First, where the prison television rental scheme has not yet commenced. Secondly, there is a transitional provision permitting the prisoners to keep their sets “until a date specified by the Chief Executive”. Apart from those two exceptions, however, no private television set may be kept by a prisoner in her cell.

Rights of prisoners to access information

[36] The broader statutory scheme is relevant. Section 5(1)(a) of the Act requires

that sentences “are administered in a safe, secure, humane, and effective manner”.¹²

Section 5(1)(b) requires Corrections system facilities to be operated “in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum rules for the Treatment of Prisoners”. Section 5(1)(c) provides as a purpose of the Act the rehabilitation of offenders, and their reintegration into the community. Similarly, s 6(1)(h) provides as a guiding principle that offenders must “so far as is reasonable and practical in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community”.

[37] It is common ground that access to television channels is important to rehabilitation and reintegration. Access to news and information is obviously important. More broadly, the depiction of social settings outside the corrections context helps prisoners learn about life outside and what to expect after release. This is of particular importance to long term prisoners. Prisons are no longer “places of

informational isolation”.¹³ This point is common ground in this proceeding. As

Ms Leota says in her affidavit:

The Department understands that television viewing for many prisoners is important to them and part of their daily activity, supplementing prisoners’ access to news, other information and recreational content. Television is one mode of connection for prisoners to the outside world and can be helpful during times of stress.

[38] Section 69 sets out minimum statutory entitlements of prisoners. The effect of s 5(1)(b), as the Department concedes, is that the Chief Executive may not make rules under s 45A inconsistent with those entitlements. They include physical exercise, bedding, food, drink and access to visitors and advisors. Of particular relevance is s 69(1)(k). It guarantees “access to information and education as provided for in s 78”. That provision states:

78 Information and education needs of prisoners

_{(1) A prisoner is entitled—}

¹² Section 8(1)(b) requires the Chief Executive to ensure the “safe custody and welfare of

_{prisoners”.}

¹³ See Van Zyl Smit and Snacken Principles of European Prison Law and Policy (Oxford

University Press, Oxford, 2009) at 257–258.

(a) to reasonable access to news:

(b) so far as is practicable, to access to library services:

(c) to access to further education that, in the opinion of the prison manager, will assist in—

(i) his or her rehabilitation; or

(ii) a reduction in his or her reoffending; or

(iii) his or her reintegration into the community.

(2) The Crown is not required to provide a prisoner with any of the education referred to in subsection (1)(c) free of charge unless—

(a) there is an entitlement to receive that education free of charge (whether under the Education Act 1989 or under another enactment); or

(b) the education is—

(i) provided to a prisoner with poor literacy skills; and

(ii) designed to improve those skills.

[39] In similar terms, the United Nations Standard Minimum Rules for the

Treatment of Prisoners provides, in cl 39:

Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorised or controlled by the administration.

Newspapers are made available in prisons. But, as Ms Mitchell lamented, by the time they reach her the crosswords have been completed and all the photographs of All Blacks clipped out.

Issues

[40] Ms Mitchell’s application for judicial review¹⁴ gives rise to three substantive issues:

¹⁴ Her pleadings also advanced a claim in contract. On 9 December Simon France J directed that the case proceed as one of judicial review. No submissions based on contract were made, therefore. I am satisfied in any event that the relationship between the parties regarding access to the plaintiff ’s television set is not a contractual one.

(a) Issue 1: Did the plaintiff have the right to retain her private television set throughout her term of imprisonment?

(b) Issue 2: Are the rules creating the new rental scheme lawful?

(c) Issue 3: Is the application of the rental scheme to Ms Mitchell lawful?

Issue 1: Did the plaintiff have the right to retain her private television set throughout her term of imprisonment?

[41] Ms Mitchell’s first argument, as I apprehend it, is that she has the right to retain her private television set throughout her term of imprisonment. In principle, no change to the regulations or rules made under the Act can take that right away. The argument, again as I apprehend it, is that a fundamental right exists under Parts

1 and 2 of the Act, and perhaps under the New Zealand Bill of Rights Act 1990,¹⁵ for

a prisoner to have her own television set, and once issued, not to have it removed. Alternatively, that the circumstances in this case gave rise to a legitimate expectation that she could retain her own television set throughout her term of imprisonment.

[42] I am unable to accept these arguments.

[43] First, there is no general entitlement of a prisoner to keep any particular item of property in her cell. Access to particular property depends on regulations and, now, rules. As subordinate legislation, that is always prone to change. Subject, that is, to the qualifications set out at [44] and [47] below. Ms Mitchell’s original access to her television depended on it falling within the definition of “authorised property”. In December 2012, it did. It also depended on her completing the statutory acknowledgment under s 44(1). She did not. Her “entitlement” to the set was on any view conditional. On the view I take at [52] below it was an indulgence rather than an entitlement.

[44] Secondly, the scope of “authorised property” is not variable at whim. It must

conform to fundamental entitlements set out in Part 2 of the Act. To the extent these entitlements are at large, they must be construed in accordance with Part 1.

¹⁵ Herein, “ the NZBORA”.

Including, because of s 5(1)(b), the United Nations Standard Minimum Rules for the Treatment of Prisoners. But I cannot find in the Act, or those rules, an entitlement to access to, or retention of, a private television. It is likely that they require some access to television per se. Because, for a significant proportion of prisoners, it will be an essential news medium.¹⁶ Whether they require in-cell access is less clear, and will not be resolved here. In-cell access is to be maintained. Just in a different form, and potentially at a cost. The rental scheme provides free in-cell access in all cases for the first 90 days. Whether constraints on access thereafter are unlawful seems to

me to depend directly on how the financial hardship scheme will work. It is too early to say, in Ms Mitchell’s case in particular. In her case, the rental cannot be higher than $1 per week. It may end up being $0. In that event, it is difficult to see what she has to complain about. I will return to this topic under Issue 3. In short, I conclude that the general entitlements guaranteed by the Act do not mandate access to a particular, private, set.

[45] Thirdly, I do not agree that a change to the definition of authorised property, so that private televisions sets would fall without, engages the NZBORA. As to s 21, I accept Ms Griffin’s submission that there has been no unlawful seizure of Ms Mitchell’s television. It will be stored and available for disposal according to her direction. As the Court of Appeal noted in R v Grayson, the primary focus of s 21 is to ensure that governmental power is not used unreasonably, and it is to be applied in

a realistic way.¹⁷ Whether the interim denial of possession of a private television in a

prisoner’s cell amounts to a seizure is debatable. Regardless, possession was conditional and not based on any extant entitlement in fact. Good cause to change the applicable regulations existed, and that was done consistently across the corrections system. The change in regime cannot remotely be described as unreasonable.

[46] As to s 23(5), I accept Ms Griffin’s submission that the threshold for breach of that provision is a high one. It must involve conduct unacceptable in New

_{Zealand society, lacking humanity, demeaning and excessive in the circumstances.}¹⁸

¹⁶ _{Particularly for those with reading disabilities.}

¹⁷ _{R v Grayson [1997] 1 NZLR 399 (CA), at 407 and 409.}

¹⁸ Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

The proper focus of that provision, in the present context, is systemic or specific but not isolated treatment incompatible with respect for human dignity. For the reasons just given in relation to s 21, this standard has not been breached in relation to Ms Mitchell specifically. And, to the contrary, the new rental scheme is likely to improve the conditions of detention of a significant number of prisoners, including vulnerable youth offenders.

[47] Fourthly, and for completeness, access to authorised property is ostensibly discretionary. Prisoners “may” be issued with, or allowed to keep authorised property in their cells.¹⁹ Although discretionary, good reason would be needed to withhold access to authorised property.

[48] I turn now from the general to the specific allegation of breach of legitimate expectation.

[49] Ms Mitchell’s submission that she had a legitimate expectation to retain her television set appears to be based on the fact that she paid the $18 security and electrical safety check fee. I find no basis for finding such a legitimate expectation in this case.

[50] First, any entitlement to retention of a private television set was dependent on statutory and regulatory provision. Any personal arrangement must always necessarily have been subject to alteration of that regime.

[51] Secondly, reg 196(1) of the Corrections Regulations 2005 provides that no prisoner has “any legitimate expectation of ... being provided with the same or similar conditions during the whole term” of their imprisonment. The legitimacy of that provision, reinforced by s 33 of the Act (and here, s 45A) has been emphasised

in decisions such as Taylor v Chief Executive of the Department of Corrections.²⁰

_{There, in a case concerning access to a computer, the Court of Appeal noted:}

¹⁹ _{Section 43(1).}

²⁰ Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR

112, at [31]. See also Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-

485-1603, 18 December 2008.

The legislation makes it clear that a person does not have any legitimate expectation that the terms and conditions relating to accommodation, programmes or opportunities in the prison environment will remain the same throughout the term of the sentence, remand or other period of detention. Prison authorities are at liberty to change any such conditions as required for disciplinary or other purposes consistent with the legislation so long as entitlements under the Act or regulations are not affected.

[52] Thirdly, in any event, Ms Mitchell’s failure to sign the s 44(1)(d) acknowledgment meant she had no original entitlement to receive her television set at all. Formal acknowledgement was a prerequisite for receipt of private property of that kind. Provision of the television to her was an indulgence rather than an entitlement. The payment of the $18 fee cannot displace that reality. It cannot ground the entitlement now alleged.

Conclusion

[53] The answer to Issue 1 is “no”. Ms Mitchell did not have the right to retain her private television set throughout her term of imprisonment.

Issue 2: Are the rules creating the new rental scheme lawful?

[54] Ms Mitchell conceded that the new rental scheme could not reach the threshold of Wednesbury unreasonableness. That was a proper concession. However she maintained her argument that the new scheme was still unlawful.

[55] Although an array of grounds were advanced for that proposition, her argument came down to three points. First, the new rules were not sanctioned by the empowering provision, and were repugnant to the purposes and principles of the Act. Secondly, they were inconsistent with her rights under the NZBORA. Thirdly, there had been a failure to consult adequately.

[56] I cannot accept these arguments.

[57] First, the rights of prisoners to retain particular property items are plainly qualified. The Act does not prevent the introduction of rules excluding private televisions from being authorised property. I have reached that conclusion already. The Act contemplates rules being made to discriminate between those items which

may be retained, and those which may not. In addition, conditions may be imposed qualifying rights of retention and access. The Chief Executive has no option under s

45A(1)(a) but to make rules. He has done so. A broad discretion is provided under s

45A(1)(b) to make rules as to conditions attaching to authorised property. The Department accepts that the discretion must be exercised in a manner that is consistent with ss 5 and 6 of the Act (and it must follow also ss 69 and 78).

[58] In this case there was clearly a justified basis has been established for the removal of private television sets (because of the concerns as to contraband, and other misconduct). If the rules simply removed private televisions altogether, and made no provision for anything in substitution, Ms Mitchell might have a point. But that is not the position here. The introduction of the rental scheme improves television access for a significant number of prisoners. Remand, short stay and youth prisoners in particular. Because of the rent free period, and the financial hardship scheme, the economic impact of the new rules is likely to be substantially muted. There does not appear to be widespread discontent as to the adverse economic impact of the new rules. The scheme is not repugnant to the purposes and principles of the Act.

[59] Secondly, I do not conclude that the new rules (and rental scheme in particular) are discriminatory and unlawful in terms of the NZBORA. I do not think that the introduction of the rental scheme can amount to a per se breach of s 23(5). Again it will be a question of how the scheme operates in practice. It seems to me unlikely, when finally Ms Mitchell is required to pay something for access to an in- cell television, that a charge of $1 a week would meet that threshold. But it is premature to form any view on that. She has not yet had to advance a case of financial hardship, and the prison authorities have not yet determined any such application.

[60] Thirdly, Ms Mitchell did not advance her argument on consultation with any great vigour, although it does feature in her written submissions.

[61] For the reasons noted earlier,²¹ no legitimate expectation of consultation can be said to have arisen from dealings between Ms Mitchell and the Department. Nor do I think s 8(1)(k) of the Act applies here. It requires the Chief Executive to give affected communities the opportunity to give views on corrections policies and practices. Perusal of Hansard suggests that this provision, added by supplementary order paper, was directed at external, rather than internal, relationships.²² I cannot discern Parliamentary intent to extend statutory consultation obligations to the prisoner population. But I can discern reasons why Parliament would not have

intended that: the burden on Corrections authorities, and the prospect of a further ground for litigation. As it is, this Court has held that the obligation in s 8(1)(k) does not extend to consultation with the general public over operational decisions in the implementation of policies and practices.²³

[62] In any event, it is clear that ample consultation with prisoner interests occurred in this case. I have summarised its content already.²⁴ The process began in about September 2012. Input from prisoners, as well as other interested persons, was sought. Although removal of private sets, and the introduction of prison sets, became a fait accompli from August 2013, important changes were still made after that date as a result of the consultative process. The 90 day rent-free period, and the

hardship scheme. The net effect of those changes may well be that in a substantial number of cases, no charge at all is paid by prisoners for the television set they received. There has been no deficiency in consultation in introducing the new rules.

Conclusion

[63] The answer to Issue 2 is “yes”. The introduction of the rental scheme for prison owned television sets was lawful.

²¹ _{At [49] – [52] above.}

²² See for example 617 NZPD 12996 (the Hon Paul Swain, Minister of Corrections, 18 May 2004),

617 NZPD 13006 (Nandor Tanczos MP, 18 May 2004), 616 NZPD 12509 (the Hon Tony Ryall,

_{7 April 2004).}

²³ Move Over Probation Inc v Chief Executive of the Department of Corrections HC Christchurch

_{CIV-2010-409-1197, 21 April 2011.}

²⁴ See [15] – [20] above.

Issue 3: Is the application of the rental scheme rules to Ms Mitchell lawful?

[64] In her affidavit in support of this proceeding, Ms Mitchell said:

The Financial Hardship Assistance threshold of $5.40 seems on a reasonable level and if I apply I would have no problem of meeting the average weekly funds. However I won’t be applying because the policy is wrong, unfair and unreasonable and discriminatory.

[65] Ms Mitchell’s personal set is due to be removed from her cell in July. She will receive, if she wishes, a prison set free of charge for 90 days. While she has to opt into the rental scheme to obtain that benefit, she can opt out of it at the end of the

90 days. It is, literally, a “trial period”. At that point, if she wishes to retain the set, she will pay no more than $1 per week. Perhaps less. Perhaps nothing at all. What the outcome of a financial hardship application will be, given that she earns the least amount paid to any prisoner in the Corrections system, cannot be assessed at this stage. However what can clearly be said is that it is premature to attempt to determine whether the application of a per se lawful rental scheme to her will be, operatively, unlawful. That depends on what happens in October.

[66] All that can be said is that, so far, the application of the scheme to

Ms Mitchell is lawful.

Conclusion

[67] The answer to Issue 3 is, so far, “yes”.

Conclusion

[68] I have concluded:

(a) Ms Mitchell has no general or specific right to retain her private television in her cell. Her possessory rights to property are governed by legislation, and subject to change. As it happens, her failure to sign the s 44(1)(d) acknowledgment meant she lacked statutory entitlement to take the set into her cell in the first place. Removal of that set (and its storage pending her release) is not a breach of rights

under Parts 1 and 2 of the Corrections Act 2004. Nor does it breach the New Zealand Bill of Rights Act 1990.

(b) The new rules providing for the rental scheme are not invalid. They are not repugnant to the purposes and principles of the Corrections Act. They are consistent with Ms Mitchell’s rights under the New Zealand Bill of Rights Act. The consultation process was not obligatory, but was at the very least adequate. It made significant changes beneficial to prisoners generally, and (in particular) vulnerable youth offenders. The change in regulatory regime cannot remotely be described as unreasonable.

(c) It is premature to determine whether the application of the scheme to Ms Mitchell is (or will be) unlawful in practice. She is not yet subject to it. She will not be required to pay anything at all until October. At that point, she automatically qualifies for a 50% financial hardship reduction. Her weekly rental will be $1. But there is scope for further reduction still. Only if the financial hardship application process

_{miscarries could there conceivably be grounds for complaint.}

Result

_{[69] Ms Mitchell’s application for judicial review is dismissed.}

_{Stephen Kós J}

Solicitors:

Crown Law, Wellington for Defendants