Mitchell v Chief Executive Officer, Department of Corrections [2015] NZHC 347 (4 February 2015)

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UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	KERRYN MITCHELL Plaintiff
AND	CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIONS First Respondent PRISON MANAGER, AUCKLAND REGIONAL WOMEN'S CORRECTION FACTILITY (ARWCF) _{Second Respondent}

[1] These proceedings raise questions about the relationship between delegated legislation promulgated under an earlier version of the Corrections Act 2004 (the Act) and rules on the same subject matter promulgated under a later version of that Act.

[2] Kerryn Mitchell is an inmate at Auckland Region Women’s Correction Facility (ARWCF). She is a sentenced prisoner. As such she is issued with and must wear clothing supplied by the prison whenever her cell is unlocked. Ms Mitchell

_{refuses to do so. She says that the rules and regulations pursuant to
which the prison}

MITCHELL v CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CORRECTIONS & ANOR [2014] NZHC 347 [4 February 2015]

purports to impose its clothing requirements on her are unlawful. She also says that the removal and confiscation of her own clothing pursuant to those rules and regulations is unlawful. She brings judicial review proceedings accordingly.

[3] Ms Mitchell was charged with intentional damage and breach of a protection order. She was remanded in custody in December 2012. While she was a remand prisoner she could wear her own clothing. This small liberty distinguished her from convicted prisoners. She was convicted following trial and thereafter required to wear prison-issued clothing. Standard issue prison clothing includes tracksuits and shorts. This outer wear is colour-coded to the unit in which the prisoner is placed. Ms Mitchell is located in the Motivational Support Unit. Outer wear in this unit is light blue. This clothing must be worn by prisoners in the unit whenever their cells are unlocked.

Corrections, the reasons for imposing this ‘uniform’ requirement are as follows:

8.1 A prison or unit “uniform” assists staff to maintain order in the prison by preventing trade in clothing or conflicts over clothing, including gang conflicts;

8.2 Prisoners are distinguishable from visitors and staff and are identifiable if they attempt to escape or abscond;

8.3 Prison-issued clothing is sufficiently modest such that it provides a level of protection for staff from the threat of false accusations of a sexual nature; and

8.4 Prisoner safety and health is supported by providing clothing of a consistent quality and design appropriate to prison life.

[5] Ms Mitchell has, since failing in her appeal against sentence, refused to wear prison-issued clothing while unlocked. A modus vivendi was, at length, arrived at, whereby Ms Mitchell was permitted by prison staff to wear prison-issued orange overalls when out of her cell. Ms Mitchell is still dissatisfied with this arrangement so, I understand, rarely leaves her cell.

[6] Ms Mitchell is permitted to wear her own personal clothing when making court appearances (including her appearance by AVL before me in this matter), but on occasion in the past when, following Court, prison staff have undertaken mandatory strip searches and required Ms Mitchell to return her personal clothing for storage, an altercation has occurred. This has led to staff imposing control and restraint techniques to remove Ms Mitchell’s civilian clothes and reclothe her with prison overalls for return to her cell. This procedure is no doubt difficult and distressing for all.

[7] In the course of one such procedure in June 2014, staff removed and retained items of Ms Mitchell’s personal clothing at the prison receiving office. These items were subsequently returned to her. Ms Mitchell seeks a declaration of illegality in that respect. I will come to matters in relation to that incident and an earlier one at the end of this judgment.

[8] Relations between Ms Mitchell and prison authorities have been characterised by conflict throughout her incarceration. She has filed a steady stream of formal complaints with the prison system in relation to her treatment, and staff have recorded incident reports in relation to her behaviour in equal measure. Except in one respect, the details of which I will address at the end of this judgment, the facts and causes of this conflict are immaterial to the legal issues I must address. I will avoid being distracted into an assessment of them, but it is important that this context of constant conflict is acknowledged at the outset.

[9] Up until June 2013, a prisoner’s authorised property was controlled by the terms of s 43 of the Act (as it then stood) together with regulations made under that section. After that date, the regime governing authorised property changed in some fundamental ways. But it is necessary to discuss the original arrangements first because, despite the changes in 2013, the old system continues to have residual effect in the specific area of clothing. I will begin therefore by summarising the pre-

2013 system before going on to address the system as if obtained from 2013 onwards.

(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—

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

(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

(d) the item has been obtained through coercion of a prisoner or as a result of other improper behaviour; or

(3) Despite subsection (1), the prison manager may refuse to issue or allow a prisoner to keep any item of authorised property—

(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(l)(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

[11] As can be seen, this version of s 43 provided a regulation-based regime for controlling the personal property inmates could keep with them while in prison, and the items they would be supplied by the prison. Such property, whether personal or prison-issued, was classified as ‘authorised property’. Authorised property was defined in s 3(1) of the pre-2013 Act as follows:

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

2013. Whoever owns it, it is issued by the prison and either kept by the prisoner or retained on his or her behalf by the prison as required by the regulations.

[13] Section 43(2) and (3) carefully reserve to the individual managers of each prison the power to override general authorisations in regulations where (broadly speaking) such override may be necessary for the good order of the prison. By those provisions managers were still able to prohibit even authorised property on a prison- by-prison basis where, implicitly, such prohibition was consistent with the purpose or principles of the ‘corrections system’ as set out in ss 5 and 6 of the Act. I will come back to these sections later in this judgment.

[14] The Corrections Regulations 2005 contain 197 regulations in 14 separate parts together with eight schedules. There must be few aspects of prison life that they do not control or affect in some way.

[15] For the most part, these regulations remain in force and continue to govern prison life, but, as I have said, since the 2013 authorised property reforms, the regulations are not the only controls any more.

[16] Prior to 2013, sch 1 of the regulations contained a comprehensive list of items classified as “authorised property”. It covered items of prison-owned and issued property, as well as prisoner property such as electrical equipment, spectacles, legal papers, study materials, CDs and so forth. The last incarnation of sch 1 was in force between January 2010 and June 2013. It was repealed in the 2013 reform.

[17] Schedule 1 did not cover clothing. Instead, clothing was (and in part still is), dealt with in reg 68 of the 2005 Regulations. Regulation 68 sits within Part 7, “Prisoner treatment and welfare”, under the subheading “Grooming”.¹It provides:

(1) Prisoners may wear their own clothing and footwear, except as provided in subclauses (3) and (4).

(2) The manager must provide clothing or footwear to a prisoner on request by that prisoner, as long as the manager is satisfied that the request is reasonable.

(3) The manager may require a prisoner who is not an accused prisoner to wear clothing or footwear provided by the prison.

(4) The manager must require a prisoner (whether an accused prisoner or not) to wear clothing or footwear provided by the prison if the prisoner's own clothing or footwear is—

(b) insufficient or unfit for a specific activity or work in which the prisoner is engaged.

¹By contrast Part 4 covers property but deals only with prisoner-owned property and finances. It

(a) suitable for the activities or work likely to be undertaken by the prisoner who is wearing that clothing or footwear; and

(6) Clothing (other than clothing for a specific activity or work) that is provided to accused prisoners must be distinguishable from clothing provided to other prisoners.

[18] The regulation is generally cast in permissive terms – unless otherwise stated prisoners may wear their own clothing – while reserving power to the manager of each prison to restrict or override that right. Thus in reg 68(3), there is a general discretion in the manager to control the clothing or footwear of convicted (as opposed to remand) prisoners. In practice reg 68(3) was the means by which individual prison managers required convicted prisoners to wear specific prison-

[19] Perhaps significantly, reg 68 did not follow the template of the old authorised property definition in s 3(1).³There is no reference in the regulation to clothing that is ‘issued’ by the prison, ‘kept by’ the prisoner or ‘retained’ on his or her behalf. The key verb used in reg 68 is ‘wear’. This approach tends to suggest that reg 68 was not drafted with s 43(1) in mind and was not intended to regulate authorised property. This is consistent with its placement in Part 7 under the subheading “Grooming”.

(1) A prisoner may be issued with, or allowed to keep, authorised property subject to—

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

[21] The old power to declare “authorised property” through regulations has thus been removed. This is now replaced with a general discretion to issue prisoners with or allow them to keep, authorised property. Authorised property is then redefined in an amended s 3(1) of the Act simply as “... property that is declared by rules made under s 45A as property that may be issued to a prisoner.” That general discretion is then subject to three constraints: the content of any relevant rules promulgated under the new s 45A, a special condition-making power vested in each prison manager, and the procedural requirements of s 44(1). The pre-2013 override discretions vested in prison managers by subsection (2) and (3) of s 43 remain.

[22] The new s 45A(1) vests in the chief executive of Corrections a general rule –

(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

(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—

(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.

[23] Though the control of authorised property under the old sch 1 has been replaced by a new power exercised by the chief executive, there is no express revocation of reg 68. It must be presumed to remain in force unless impliedly repealed.

[24] Rules were duly promulgated under s 45A in November 2013. These were the rules pursuant to which the staff at ARWCF acted with respect to Ms Mitchell. As we shall see below they were replaced in 2014 by new rules (so I refer to the

2013 rules in the past tense) but the 2013 rules remain relevant for the purposes of this case. I turn to consider the rules now.

[25] Under the heading “General Conditions Attached to the Issue and Use of

The following rules apply pursuant to s 45A of the Corrections Act 2004. Only properties specified in the schedules contained herein is authorised property that prisoners may be issued with or be allowed to keep in their cells. Prisoners may not be issued with or allowed to keep any other property items.

[26] A series of schedules to the rules followed the generally applicable provisions. Schedule 1 related to certain authorised property brought to the prison by the prisoner on first entry. Schedule 2 related to prison issued property, for example toiletries, bedding, stationery and televisions. Schedule 3 related to electrical items (including televisions already covered by sch 2 it seems). Schedule 4 related to clothing and footwear.

4.1.3 Sentenced prisoners may only store clothing in a prison for court appearances or for when they are to be released.

	Property Item	Description	Maximum Limit of clothing items			Conditions
	Property Item	Description	Prison Issue	Sentenced / Remand convicted	Remand Accused
a.	Jacket or coat		N/R	One	Nil
b.	Trousers		One	Prison Issue only	Three	Incl. jeans or track pants.
c.	Tracksuit		One	Prison Issue only	One
d.	Jumper / Jersey / Track top		N/R	Prison Issue only	Three
e.	Shorts		One pair	Prison Issue only	Two
f.	Shirts / T-shirt	Consumable	One	Five	Five	No commercial / advertising printing of any kind is allowed (except branding by the clothing manufacturer).
h.	Socks	Consumable	If requested	Five pairs	Five pairs
i.	Underwear	Consumable	If requested	Five pairs	Five pairs
j.	Brassiere – Female	Consumable	If requested	Five	Five
k.	Thermal underwear	Consumable	N/R	Two pairs	Two pairs
l.	Cap or hat		N/R	One	One
m.	Beanie		N/R	One	One
n.	Gloves		N/R	One pair	One pair	Winter wear only – no fingerless gloves

[28] It will be seen that the November 2013 clothing rules took the opposite approach to that contained in reg 68. By reg 68(1), prisoners are entitled to wear their own clothing unless the manager imposes a requirement otherwise and by reg 68(4), the manager has a duty to require a prisoner to wear prison-issued clothing only if that prisoner’s own clothing is insufficient or unfit. Otherwise the individual manager had a broad discretion to choose to impose restrictions or not. The November 2013 rules reversed the presumption. They provided that if an item is not listed in sch 4, prisoners may be not issued with or allowed to keep it.

[29] During the course of, indeed it seems because of, this litigation, new rules were promulgated in October 2014. It is necessary now to set those out. While, strictly speaking, it is the November 2013 draft of the rules that are relevant to my assessment of the legality of the actions undertaken by Corrections staff at ARWCF, the terms of the second draft of October 2014 may well be relevant to relief.

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 s 43 of the Act. Prisoners may not be issued with or allowed to keep any other property items.

[31] Schedule 4 once again relates to clothing. The list of items has not changed markedly from that in the earlier draft, but the preceding explanatory notes in 4.1 are more carefully drafted and with an eye to the relationship between the rules and reg 68.

4.1.1 Authorised clothing can be personal clothing or prison owned clothing. If an item of clothing is not permitted by this schedule it is

not authorised property, and a prisoner cannot be issued with or allowed to keep that item.

c. not be in excess of the maximum limit of clothing items specified by these Rules;

4.1.3 Unless a prisoner is permitted to store clothing at the prison in accordance with reg 35 of the Regulations and rule 4.1.6, a prisoner must arrange for non-issued personal clothing to be removed from the prison. Otherwise the prison will dispose of it according to the approved disposal process.

4.1.4 Note that a prison manager is able to require sentenced and remand convicted prisoners to wear certain items of clothing and footwear provided by the prison under reg 68(3) of the Regulations.

4.1.5 If the prison manager has required sentenced or remand convicted prisoners to wear certain items of clothing or footwear provided by the prison under reg 68(3) of the Regulations, where the prison- owned clothing or footwear is in substitution for the equivalent personal clothing or footwear, the equivalent personal clothing or footwear must not be issued to prisoners except if it is for use in court appearances or on release or removal.

4.1.6 If the prison manager has required sentenced or remand convicted prisoners to wear certain items of clothing and footwear provided by the prison under reg 68(3) of the Regulations, prisoners may not store substituted personal clothing except for use in court appearances or on release or removal.

4.1.7 Note that prison owned clothing items may be provided to a prisoner up to the quantities specified in 4.2 if the prisoner does not possess an authorised personal item. Note that there is no obligation for the prison to supply the maximum numbers of each item, the obligation is to provide clothing to the extent that this is necessary to ensure that the prisoner has adequate clothing to provide for their safety, warmth, health and comfort.

4.1.8 The prison manager may issue prisoners with additional prison owned clothing not specified in this schedule for the purposes of:

a. any work or activities taking place inside or outside the prison, including work boots, overalls, and safety equipment appropriate to the activity;

b. meeting the prisoner’s particular needs arising from a health condition or a disability, including garments with safety features preventing a prisoner from engaging in self-harm.

Any additional prison owned clothing issued to a prisoner is authorised property.

[33] The final piece of the puzzle is a prison circular entitled “ARWCF Clothing Requirements”. This was issued by Cheryle Mikaere, the prison manager of ARWCF. It was also issued in October 2014 (the month the redrafted rules were promulgated) and is obviously intended to be read alongside the new rules. The circular purports to be issued under reg 68(3). It relevantly provides:

Under reg 68(3) of the Corrections Regulations 2005, I require prisoners at Auckland Region Women’s Corrections Facility (ARWCF) who are not accused prisoners to wear clothing provided by the prison.

[34] It confirms that the uniform for Ms Mitchell’s unit is a light blue tracksuit and shorts. The circular then continues with an express exceptions clause:

In certain circumstances I will consider granting an exception to a requirement to wear prison-owned clothing at the request of a prisoner, a Principal Corrections Officer or the Health Centre Manager in writing. The circumstances are:

In light of Ms Mitchell’s claim and the new Authorised Property Rules, I considered it was important to revise the Prison Manager’s requirements under reg 68(3) and make my requirements available to prisoners and staff in an accessible and easy to understand format.

[36] Although uniforms have been standard requirements at AWRCF for some time, I do not know whether similar circulars pre-dated that of 16 October 2014. The absence of a reference to any in the evidence suggests not.

[37] With that rather lengthy background in mind, I turn now to consider the submissions made by the parties and to my analysis.

[38] Being a lay litigant, Ms Mitchell understandably introduced into argument a number of matters that were of dubious or peripheral relevance in relation to the essential dispute before me. In order to assist the process, Collins J in a minute dated 12 August 2014, crystallised the issues as agreed between the parties. He described those issues as follows:

Notwithstanding the wide ranging number of concerns Ms Mitchell has raised, the parties agree that the overall issue raised by her proceeding is the legality of the Department of Corrections Authorised Property Rules issued under s 45A of the Corrections Act 2004. It is Ms Mitchell’s case that those rules are inconsistent with reg 68 of the Corrections Regulations insofar as they regulate sentenced prisoners’ clothing.

Ms Mitchell’s case includes a claim that her stored personal “Court clothing” which she was permitted to retain while a remand prisoner should be returned to her.

Ms Mitchell also says that the occasions on which prison-issued underclothing or pyjamas were not returned to her were unlawful.

[39] Ms Mitchell argues that by failing to provide for appropriate exceptions to the blanket ban on non-authorised property, the rules contradict reg 68(1). That is because, she says, the prescriptive approach in the 2013 rules contravenes the general policy in reg 68(1) that prisoners are entitled to wear their own clothing and footwear unless deemed otherwise by the manager pursuant to subclauses (3) and (4). An absolute ban on particular forms of clothing because they are not authorised is therefore inconsistent with the regulation, and the regulation, being of higher legislative status, must prevail.

[40] Ms Mitchell then turns her sights on reg 68 itself and submits that subclause (3) pursuant to which managers may impose unit uniforms, is inconsistent with the purposes and principles of the ‘corrections system’ as provided in ss 5 and 6 of the Act. This argument, Ms Mitchell submits, is supported by domestic and international human rights instruments including the Bill of Rights Act, the Human

[41] Ms Mitchell seeks relief by way of declaration and a “prohibition order”. The declaration sought effectively seems to be that the system of prisoner clothing regulation is unlawful to the extent that it prohibits the plaintiff from keeping and wearing her own personal clothing. The “prohibition order” sought is an order prohibiting the defendants from seizing, removing and (I infer) retaining Ms Mitchell’s personal clothing.

[42] For the respondents, Mr Powell submitted that there is no conflict between the rules and reg 68. That is because, he argued, the amendment in 2013 shifted responsibility for designating authorised property from the Governor-General in Council under reg 68 to the chief executive under s 45A. Crucially, he submitted, reg 68 controls what clothing may be worn but rules under s 45A control “authorised property”: that is property (including clothing) with which prisoners may be issued or that they may be allowed to keep. The right to possess and the right to wear are different things, he submitted.

[43] Mr Powell argued further that there has been no breach of the purposes and principles guiding the ‘corrections system’ nor of domestic or international human rights based instruments. None of these instruments, he submitted, vests in a prisoner the absolute right to retain his or her personal clothing while in prison.

[44] I will address the issues of general application that are raised in the foregoing arguments by posing the following questions:

(a) Does reg 68 remain in force despite the repeal of the reference to authorised property regulations in s 43(1)?

(b) Is there an inherent conflict between reg 68 and the rules such that one must impliedly repeal the other?

(c) Is the prohibition on possessing clothing not authorised by the rules unlawful in the absence of a residual discretion in prison managers to relax the ban in particular cases?

(d) Is it unlawful for the prison manager to impose a policy pursuant to reg 68(3) requiring all convicted prisoners to wear unit uniforms?

(e) Is the overall regime by which prisoner clothing is controlled inconsistent with either the purposes and principles of the ‘corrections system’ or domestic or international human rights norms?

[45] I will then turn to address Ms Mitchell’s claim that her personal clothing was unlawfully taken from her, and wrongfully retained by the prison following her return from court appearances in May and June 2014. I will set out the facts in that respect when I address the issue.

[46] Does reg 68 remain in force despite the repeal of the reference to authorised property regulations in s 43(1)? The answer to that question is yes. In my view, reg

68 was not promulgated pursuant to s 43(1) in its pre-2013 form and it did not purport to regulate authorised property. Rather, it was promulgated pursuant to the general regulation-making power in s 200. Section 200(7)(d) still provides that regulations may be made:

... for the management, care, treatment, well-being, and reintegration into the community of the following persons:

[47] Section 203(d) further elucidates the general regulation-making power in s 200(d). It provides that regulations under s 200(1)(d) “may include (without limitation) provisions ... regulating the appearance of prisoners (including the

_{clothing to be worn by prisoners and the cutting of
prisoners’ hair).”}⁴

[48] As I have said, reg 68 does not follow the “authorised property” template set out in the definition of authorised property that applied before June 2013. It does not purport to control what may be “issued to”, “kept by”, or “retained on behalf of”, a prisoner. It controls only what may be worn. Further, the regulation is located under the subheading “Grooming” in Part 7 relating to prisoner welfare. Property including authorised property is dealt with in Part 4 and Schedule 1.

[49] In my view, reg 68 and the rules are not in conflict even though both purport to regulate an aspect of clothing in prison.

[50] The rules relate to all items of property (including clothing). They control what may be supplied to a prisoner while in prison. Such supply may come from the prisoner’s own personal property or from prison-owned property. And as I have said, reg 68 does not control what may be issued to or kept by the prisoner, or retained by the prison on the prisoner’s behalf.⁵It controls what the prisoner must wear. That is why it relates only to clothing and footwear.

[51] What changed after 2013 was that the rules imposed a ban on possessing anything not specifically declared in the rules to be authorised property. In effect the rules declared that any property not authorised was “unauthorised”. That ban applied both to clothing and footwear.

[52] Prior to 2013, the regulations contained no such ban either generally, or in relation to clothing and footwear. Schedule 1 set out all items of authorised property but it did not declare items that were not authorised property to be “unauthorised”. And, as I have said, it did not purport to regulate clothing and footwear at all.

[53] The pre-2013 Act did in fact set out a long list of “unauthorised items” in s 3(1), but the list did not include “anything not specifically authorised” or words to that general effect. On the contrary, the catch all phrase used in item (i) in the list in

⁵To use the pre-June 2013 formulation of ‘authorised property’, but the same of course applies to

the current definition – viz property that the prisoner may be ‘issued with’ or ‘allowed to keep’.

Any article or thing declared to be an unauthorised item by regulations made under this Act.

[54] There were no such regulations prior to 2013. That meant in my view, that a prisoner’s own clothing was never “unauthorised” prior to 2013. That in turn left reg 68 as the only control on prison clothing, regulating as it did, what may be worn without concerning itself with what was authorised property. With matters left in this way, there was no overlap between sch 1 and reg 68 and thus there was only one set of clothing controls.

[55] The 2013 changes stretched the authorised property regime to cover clothing too. But with reg 68 remaining in place there were now two different controls over clothing. All items of clothing and footwear must now first be “authorised property” in terms of the rules before they may be worn in terms of reg 68. But the reverse proposition does not necessarily follow: the fact that an item of clothing is authorised property does not automatically mean it can be worn. As I have said, the structure of reg 68 suggests that it was not drafted with the authorised property regime in mind.

[56] Thus, there is little difficulty in reading the rules and reg 68 together. They were created to control different things even though prior to 2013 they were not treated that way. No clothing may be worn if it is not authorised property under the rules, but once that hurdle is overcome prisoners may wear their own personal clothing provided the relevant prison manager has not otherwise required the prisoner under reg 68(3) to wear prison-issued clothing (I will come to that issue in answering question (d)). There is therefore no inherent conflict between the two sets

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.

Clauses 4.1.4-5 also belatedly speak to the relationship between sch 4 of the rules and reg 68.

[57] There is however an issue with respect to the effect on the manager’s reg 68 discretion, of the prohibition in the rules on possessing non-authorised property. I turn to address that now.

[58] Is the prohibition on possessing clothing not authorised by the rules unlawful in the absence of a residual discretion in prison managers to relax the ban in particular cases? Ms Mitchell argues that the rules are invalid because by banning the possession of any clothing not specifically authorised, they effectively eliminate or unfairly fetter the discretion vested in prison managers under reg 68(1) and (3). It will be recalled that reg 68(1) provides the default position that prisoners may wear their own clothes, and subreg (3) provides the relevant exception entitling prison managers to require convicted prisoners to wear prison-issued clothing and footwear. Ms Mitchell argues that inflexible rules override the discretion vested in prison managers to leave the default in place.

[59] The respondents do not deny that, read strictly, the rules would prevent reg 68(1) from having any effect. They say instead that the rules should be read down so as to imply flexibility consistently with reg 68. The respondents say this is in fact how the rules are applied in practice. For example, prisoners are entitled in practice to wear their own personal clothing in self-care units as they transition to their final release dates.

[60] As I have said, reg 68 and the rules do not relate to exactly the same subject matter. The former controls what clothing and footwear may be worn. The latter controls what clothing and footwear (among other things) are authorised property able to be issued to, or kept by, the prisoner.

[61] The rules (in both their 2013 and 2014 versions) contain inflexible bans on the prisoner possessing any clothing or footwear not specifically listed in sch 4. On the other hand, reg 68(1) and (3), when read together, contemplate the possibility that convicted prisoners may be permitted by the manager to wear their own personal clothing. Thus, the October 2014 circular contains a general policy of uniformed

convicted prisoners, but permits the manager to relax this requirement in the particular circumstances listed therein.

[62] On the face of it then, if a prison manager grants an exception pursuant to the circular, she will be permitting a breach of the rules.

[63] This potential dissonance between the rules and the regulations cannot be seen as satisfactory even if, strictly speaking, they regulate different things. The result in practice would inevitably be confusion, uncertainty and potentially, illegality. In a prison environment, it seems to me rules should be known and clear.

[64] I do not however see the inflexibility in the rules as necessarily fatal. After all, s 45A obliges the chief executive to “make rules declaring the items of property that prisoners may be issued with or allowed to keep ...” The rules can be as black and white as the chief executive considers appropriate and as may be consistent with ss 5 and 6. The problem is that, whatever rules are promulgated, they must not render nugatory the manager’s discretion under reg 68. That would be to step outside the parameter set by s 45A and to usurp the role of the manager under reg 68.

[65] The rules and reg 68 will inevitably affect each other because they control related activities. They must be read in a manner that enables them to co-exist.

[66] But I am not prepared to read down the rules in order to import flexibility unnecessarily. That is, in my view, to take the wrong approach. And in any event, I very much doubt that it is appropriate for the Court, in an effort to correct usurpation of the manager’s discretion, to then usurp, in the guise of interpretation, the role of promulgating rules. That task is specifically delegated by Parliament to the chief executive. Rather, the obligation on the chief executive is to prepare rules about authorised property that do not have the ancillary effect of negating the manager’s discretion in reg 68.

[67] This may be done by a simple drafting technique – that is by importing into the rules a further category of authorised property: any other items of clothing or footwear declared by a prison manager as clothing that may be worn by a prisoner or

class of prisoners pursuant to reg 68. This would cover both the narrow exception explicitly set out in the October 2014 circular and the liberty granted in the circular to inmates in the self-care unit to wear their own clothing.

[68] Thus, while I do not agree that the inflexibility of the rules is fatal, the rules must nonetheless be amended by the chief executive in the manner described so as to harmonise the two controls. The answer to the question posed is accordingly ‘not necessarily’, but some relevant relief will be required. I will address that question at the end of the judgment.

[69] Is it unlawful for the prison manager to impose a policy pursuant to reg 68(3) requiring all convicted prisoners to wear unit uniforms? Ms Mitchell argued that the uniform requirements imposed on convicted prisoners pursuant to reg 68(3) and now contained in the October 2014 circular (though I infer, not so at the relevant time) are inconsistent with reg 68(1). That is because the requirement amounts to an “absolute ban without exceptions” on the wearing under reg 68(1) of the prisoner’s own clothing.

Tipping J in Practical Shooting Institute (NZ) Inc v Commissioner of Police.⁷

Ms Mitchell submitted that reg 68(3) required prison managers to assess each prisoner individually to determine whether prison-issued rather than personal clothing was appropriate. The policy contravened the regulation by creating a blanket prohibition.

[71] Mr Powell submitted that it was consistent with applicable principle for the prison manager to apply a broad policy to the exercise of her discretion under reg 68(3) in light of the secure prison context and the large number of inmates

⁷Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC).

[72] I note that Mr Powell cited the decision of Goddard J in Harriman v Attorney General in support of his argument.⁸In Harriman, Her Honour accepted that the Parole Board was entitled to adopt a policy that all Parole Board hearings must be attended by the prisoner unless the convenor of the relevant panel decided otherwise.

[73] In a memorandum filed after the hearing in this proceeding, Mr Powell very responsibly pointed out that, on appeal, the Court of Appeal had subsequently disagreed with Goddard J on that point.⁹The Court of Appeal found that in the particular and complex statutory context of Parole Board hearings, the Board’s policy replaced the required statutory decision-making process by super-imposing a presumption. The Court held that the statutory language required a separate decision in each case by reference to set statutory criteria.

[74] I am satisfied that the conclusion of the Court of Appeal in Harriman has no application to this case and that the prison manager at ARWCF is entitled to adopt a generally applicable uniform policy pursuant to reg 68(3).

[75] Regulation 68(3) accords prison managers a discretion to require a prisoner “who is not an accused prisoner” to wear prison-issued clothing. The default position in accordance with reg 68(1) – that prisoners may wear their own clothes – is expressed to be subject to any manager’s requirement under reg 68(3). There are no specific criteria in the regulations purporting to guide the manager in imposing reg 68(3) clothing requirements. There are relevant general provisions. For example, reg 6(1) provides:

Subject to the Act and to the control of the chief executive, the manager of a prison is responsible for its good management and the fair, safe, secure, orderly, and humane management and care of its prisoners.

[76] Sections 5 and 6 of the Act also contain general guidance under the headings “[p]urpose of corrections system” and “[p]rinciples guiding corrections system” respectively. I will deal with these sections more fully in the next part of this

(a) s 5(1)(a) – to “... improve public safety and contribute to the maintenance of a just society by ensuring that [sentences] are administered in a safe, secure, humane, and effective manner ...”;

(b) s 6(1)(a) – “... the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision ...”;

(c) s 6(1)(f)(ii) – “... the corrections system must ensure the fair treatment of persons under control or supervision by ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure ...”;

(d) s 6(1)(g) – “... sentences and orders must not be administered more restrictedly than is reasonably necessary to ensure the maintenance of the law and the safety of the public, Corrections staff, and persons under control or supervision ...”.

[77] These provisions are general in nature. They do not suggest that there is a particular process that must be pursued in imposing a reg 68(3) requirement. They certainly do not suggest, in their terms, that the manager cannot adopt a policy in relation to that discretion.

[78] On the contrary, as Graham Taylor suggests, the introduction of policies to guide the exercise of discretion is very much to be expected in cases such as the present:¹⁰

The development of policy is almost invariably undertaken when actions under the same power are expected to be taken more than occasionally. This is both desirable (to ensure consistency of action) and necessary (for regulating delegated authorities). Reliance on policy is not unlawful. What is unlawful is the blind following of policy: “the policy cannot deny the power which the law has conferred”. [Westhaven Shellfish Limited v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].] The general principle is that each case must be considered on its own merits;

a claim that the policy should not be followed in a particular case must be considered. This does not mean that an exception to policy must be made, but only that the authority should be open to persuasion in deciding that if the policy is so phrased as to admit no exceptions it should consider making an exception.

[79] The principles in Harriman have no application here because the statutory regime under which panel convenors at the Parole Board exercise their discretion is different to reg 68(3) in material ways. The relevant provisions in Harriman fixed the procedural point at which the discretion had to be exercised and set out detailed considerations pursuant to which the convenor was required to make the decision.

indicated that individual exercises of discretion were required and the adoption of a policy would have the effect of bypassing a proper consideration of the statutory criteria. That is simply not the case here. There is no review infrastructure for requirements made under reg 68(3), no specific indication that individualised decisions are required and no detailed criteria that would be bypassed through the adoption of a policy. I find therefore that the prison manager’s uniform policy is not wrong in principle.

[80] The next question is whether the uniform policy is so rigid that it might be seen as abdicating the prison manager’s responsibility to properly consider exceptions to the policy.

[81] The October 2014 circular refers to limited exceptions to the policy. Two categories are given:

[82] An example of the first category might be prisoner pregnancy. Examples of the second category might be where the prisoner is too large or small to wear prison-

issued clothing or is physically disabled so as to make wearing that clothing unsafe. These exceptions, though narrow, are not so narrow as to establish “an immutable policy admitting of no exceptions”¹²or to “have effectively closed off the possibility” of an exception being made.¹³

[83] In the end what will be acceptable in terms of the breadth of the exceptions category must depend on the statutory and factual context. In a prison context, the maintenance of good order and security among prisoners will be of the utmost importance. As Chief Custodial Officer Beales made clear in his affidavit,¹⁴the requirement to wear uniforms contributes significantly to these outcomes. It would be inconsistent with maintaining good order and security to allow a broad range of exceptions to the uniform requirement for prisoners in those units where uniforms

are required. I find therefore that the allowable exceptions pursuant to the published policy are broad enough to render that policy lawful.

[84] I finally note that, as far as I can tell, there was no published circular prior to October 2014. The circular was published in response to this proceeding. However, I infer that the uniform requirement is a longstanding policy applied in the past without the formality of publication. It was this unpublished policy that applied at the time of commencement of this proceeding. I do not have evidence in relation to whether the unpublished policy was applied without admitting exceptions. I expect however that ARWCF will have had to deal with the issue of clothing pregnant sentenced prisoners in the past, so it is likely that exceptions will have been made.

[85] In the end, I do not think that question matters. Even if there were no exceptions admitted under the pre-publication policy, a new policy has fixed that deficiency and there would be little point, in the exercise of my discretion on the question of relief, in making a declaration in those circumstances.

¹³_{Westhaven Shellfish Limited v Chief Executive, Ministry
of Fisheries, above n 11 at [53].}

Consistency with purposes and principles of the ‘corrections system’ and

[87] Is the overall regime by which prisoner clothing is controlled inconsistent with either the purposes and principles of the ‘corrections system’ or domestic or international human rights norms?

[88] Section 5 sets out the purposes of the corrections system. Relevant parts of that section are as follows:

(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by–

(a) ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and

(b) providing for corrections 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;

[89] Section 6 sets out the principles guiding the corrections system. Relevant parts are:

(1) The principles that guide the operation of the corrections system are that–

(a) the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:

(f) the corrections system must ensure the fair treatment of persons under control or supervision by–

(i) providing those persons with information about the rules, obligations, and entitlements that affect them; and

(ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:

(g) sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:

(2) Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.

[90] Section 5(1)(b) imports the United Nations Standard Minimum Rules for the Treatment of Prisoners (the UN Minimum Treatment Rules). Significantly these rules proceed on the basis that prison authorities do have the discretion to require prisoners to wear prison-issued clothing. Rules 17 and 18 for example provide:

17.(1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.

Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.

(3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.

18. If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the institution to ensure that it shall be clean and fit for use.

[91] Similarly r 43(1) of the UN Minimum Treatment Rules proceeds on the basis that prisoners will have personal clothing that may not be retained on admission and requires that the prison keep those in safe custody:

All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition.

[92] In addition, sentences are to be administered in a “safe, secure, humane, and effective manner”¹⁵with the “paramount consideration” in prison management being

the maintenance of public safety.¹⁶As the chief custodial officer noted,¹⁷unit “uniforms” help staff to maintain order, reduce conflict, distinguish prisoners from civilians and protect staff from false allegations. These objectives are all consistent with the tenor of ss 5 and 6. The requirement that sentenced prisoners wear uniforms when unlocked is therefore consistent with ss 5 and 6.

[93] Nor is there any substance in the allegation that the prison clothing regime breaches the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

[94] Ms Mitchell claims that by requiring her to wear a uniform and refusing to issue her with her own prison clothes, AWRCF has breached the following sections of the New Zealand Bill of Rights Act:

• Section 29 (application to legal and natural persons). [95] These claims lack merit. To take them in order:

(a) Controlling the issue and wearing of clothing in prison is not cruel nor does it amount to torture. Rather it is, as the UN Minimum Treatment Rules reflect, to be expected.

(b) Such controls do not restrict thought and to the extent that they may be seen to restrict free expression, such restriction is reasonable in light of the fact that Ms Mitchell is a convicted prisoner, and in light of the prison’s objectives in imposing such constraints.

(d) None of the prohibited grounds of discrimination set out in s 21(1) of the Human Rights Act 1993 bears any relevance to the control of a prisoner’s clothing by virtue of the fact that the prisoner has been convicted of an offence and is resident in a particular prison unit.

(e) I will deal with unreasonable search and seizure in the last part of this judgment relating to the admitted taking of Ms Mitchell’s personal clothing.

(f) The threshold for inhumane treatment is a high one (see generally Taunoa v Attorney-General).¹⁸There can be no basis upon which the requirement to wear prison uniform can be said to be “inhuman” in accordance with Taunoa.

(g) There is no basis upon which it can be said Ms Mitchell’s right to justice has been curtailed with respect to the requirement that she wear a prison uniform and the prohibition on her retaining her own personal clothing. Such requirements are not unjust.

[96] I conclude that, with the exception of the unreasonable search and seizure issue to be addressed below, the regime by which personal clothing is controlled is

consistent with the purposes and principles of the corrections system and with domestic and international human rights norms.

[98] I turn now to consider Ms Mitchell’s allegations in relation to events in May and June 2014. The events relate to Ms Mitchell’s Court appearances – the first on

[99] There seems to be little real debate about the material facts. On 29 May, Ms Mitchell was given her personal clothing to wear to court, in accordance with standard procedures. On return Ms Mitchell was stripped-searched (again as is standard procedure under s 98(7)(b)(i) of the Corrections Act 2004), but Ms Mitchell refused to remove her undergarments to accommodate the strip search. She was ultimately returned to her cell clad only in those undergarments. Once in the cell, she was given a pair of prison overalls to wear. Her court clothing, being unauthorised, was packed and stored. Ms Mitchell tore the overalls up and put them in the rubbish bin in her cell. In the following days, Ms Mitchell refused to wear the required clothing under reg 68(3) and so remained locked in her cell.

[100] On 25 June following a second Court appearance, Ms Mitchell again refused to remove her undergarments for a strip search and so was physically restrained, stripped and searched by six officers including an officer whose task it was to make an audio-visual recording of the event.

[101] Ms Mitchell was then forcibly reclothed in prison overalls for the transition to her cell and then (in light of the fate of last pair) the overalls were taken away. Ms Mitchell was in her cell for two days before prison officers offered her standard issue prison clothing. Ms Mitchell maintained her refusal to wear the required tracksuit or shorts so she remained in her cell clad only in undergarments until, on

[102] Ms Mitchell continued to refuse all requests to wear prison clothing while unlocked, so she effectively remained in her cell until 21 July. On that day, she agreed to wear prison overalls while unlocked pending the outcome of this litigation.

[103] Quite apart from Ms Mitchell’s arguments over the prison’s right to control prisoner clothing either under the rules or reg 68(3), she argues that her treatment during the course of these events was inhumane and inconsistent with respect for her inherent dignity as a person. That is, she submits, particularly so in relation to the five days during which she was left in her cell wearing only undergarments. She submits further that she was subjected to unreasonable search and seizure on both occasions in breach of the New Zealand Bill of Rights Act 1990.

[104] For the respondents, Mr Powell argues essentially that whatever difficulties Ms Mitchell faced following her return from Court on 29 May and 25 June 2014, they were caused by her own refusal to comply with lawful prison directions.

[105] I am satisfied that prison staff were entitled to remove (forcibly if necessary) Ms Mitchell’s Court clothing since apart from her undergarments and pyjamas, it was both unauthorised clothing under the applicable rules (November 2013) and contrary to the prison manager’s requirements under reg 68(3) (pre-October 2014 published circular). It would thus have been unlawful for her to either possess or wear such clothing.

[106] In addition, s 98(7)(b)(i) of the Corrections Act 2004 provides that strip searches are compulsory on return from any place outside the prison.

[107] Of course removal had to be undertaken using the minimum force necessary and from the outset, prison clothing had to be made available to the prisoner to take up if she so wished.

[108] But I agree with Mr Powell that Ms Mitchell was, for the most part, the author of her own difficulties because she refused to comply with lawful prison directives both in relation to strip searches and clothing. So far as I can tell, prison staff acted with deliberation and care. The exception, as I have pointed out, is that Ms Mitchell was left for two days between 25 and 27 June 2014 without even the offer of prison clothing.

[109] It may perhaps be arguable that this was inconsistent with respect for Ms Mitchell’s dignity (a requirement, I suggest, that ought to be inherent in the administration of any penal institution in a civilised society) but such breach (if it was a breach at all) was technical only. Ms Mitchell made it very clear that she would never have accepted any offer of prison clothing if it were made during that period.

[110] I note also that prison officers indicated a willingness to bend the rules in order to accommodate Ms Mitchell’s unique needs. She was given overalls and was then given her personal clothing back, some of which was strictly unauthorised.¹⁹

[111] I am, in sum, satisfied that the events of 29 May and 25 June 2014, and that further events subsequent to those dates, did not give rise to any disrespect of Ms Mitchell’s inherent dignity or to any breach of Ms Mitchell’s right to be free of unreasonable search and seizure. I would dismiss this aspect of the application.

[112] With one small exception, I conclude therefore that the application for judicial review must be dismissed. The exception relates to the wording of the latest iteration of the rules. The potential for inconsistency between the rules and requirements under reg 68(3) must be avoided. I therefore order that the Chief Executive amend the October 2014 rules in accordance with the terms set out in [67]

¹⁹The incident record of Talatoka Ducivaki on 30 June 2014 records that pink thermal pants, black shorts (Tommy brand), a grey underwire bra and green pyjama pants were returned to Ms Mitchell. The black shorts and perhaps the pink thermal pants were unauthorised items.

Hearing:	10 November 2014
Counsel:	K Mitchell in person A M Powell and M J McKillop for Respondents
_Judgment:	_{4 February 2015}

High Court of New Zealand Decisions

Mitchell v Chief Executive Officer, Department of Corrections [2015] NZHC 347 (4 February 2015)