IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2021-409-528
[2023] NZHC 2007	

BETWEEN	PHILLIP JOHN SMITH
Applicant	
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent

THE MANAGER OF RIMUTAKA PRISON
Second Respondent

THE MANAGER OF RIMUTAKA PRISON
Third Respondent	

Hearing:

Further submissions Filed:	10 August 2022

17 August 2022 (Applicant)
30 August 2022 (Respondents)
1 September 2022 (Applicant)	
Appearances:	Applicant – In Person (via AVL)
J B Watson and R M McMenamin for Respondents	
Judgment:	28 July 2023	

JUDGMENT OF EATON J

This judgment was delivered by me on 28 July 2023 at 4 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SMITH v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2023] NZHC 2007 [28 July 2023]

Introduction

[1]	Prison property is regulated by the Authorised Property Rules (APRs).1 The 2020 APRs do not allow a person to possess a necklace. They further impose restrictions on the size, power and componentry of a stereo that a prisoner may possess.

[2]	On 4 March 2022, Phillip Smith received a decision of the Deputy Prison Director (the Deputy Director) of Rimutaka Prison declining his application to possess a Panasonic RX-D29 stereo. On 8 June 2022, the Deputy Director revoked Mr Smith’s prior approval to retain a necklace and provided reasons for that decision on 14 June. Mr Smith challenges both decisions by way of judicial review.

[3]	Mr Smith also challenges by way of judicial review the legality of the APRs declared by the first respondent, the Chief Executive of the Department of Corrections (the Executive), on 1 December 2020 pursuant to s 45A of the Corrections Act 2004 (the Act). He submits the APRs conflict with ss 14 and 15 of the New Zealand Bill of Rights Act 1990 (BORA).

Background

The Panasonic RX-D29

[4]	While in  Rolleston  Prison, a letter dated 11  December 2020 was sent  to   Mr Smith from the National Commissioner, Ms Leota.  This  letter  recorded  that Ms Leota had reviewed Mr Smith’s request for an exemption to the rule around stereo specifications and determined the National Commissioner did not have the power to allow exemptions to the APR, nor did any other Corrections staff. Ms Leota said the APRs are not discretionary and that she had been advised there was “at least one stereo on the market” that complies with the APRs’ specifications. The model suggested was the Veon CD Boombox VN1122018.

[5]	On 2 February 2022, Mr Smith wrote to advise the prison that the RX-D29 had been sent to the prison the day before with the necessary property form.

1	The Authorised Property Rules at issue are those dated 1 December 2020.

[6]	On 28 February, Mr Smith wrote to the Rimutaka Prison, referring to a letter from the National Commissioner dated December 2021,2 which he said he had received that day. He noted the National Commissioner had mistakenly referred to a URXD-50 model stereo in their letter, rather than the RX-D29 model at issue, and that the letter had been sent before his property request for the RX-D29 had been made. He requested the RX-D29 stereo be issued to him as an exception to the rules.

[7]	On 28 February 2022, the Deputy Prison Director signed a P.10 Form advising Mr Smith the stereo was not an authorised item of property under s 45A of the Act and directing him to remove the stereo within 28 days.

[8]	Mr Smith replied on 2 March 2022, indicating he did not accept the decision in the P.10 Form and requesting the stereo be issued to him.

[9]	On 4 March 2022, Mr Smith received a letter from the Deputy Prison Director in response to his correspondence of 28 February 2022. This letter stated the APRs are not discretionary and that there was a list of acceptable and unacceptable stereos for Rimutaka Prison attached to the “Request for Property” form. The Deputy Prison Director concluded that no Corrections staff member had the power to allow exemptions to the APRs.

[10]	On 18 March 2022, Mr Smith requested, and was granted permission, for the stereo to be stored at the prison until this proceeding is determined.

Necklace

[11]	In October 2012, while Mr Smith was in Rolleston Prison, he submitted a property request for a necklace. That form shows the request was approved by a Corrections staff member. The necklace was received at Christchurch Men’s Prison, which receives property on behalf of Rolleston Prison, in mid-October. However, the necklace was not issued to Mr Smith because it was not authorised property under the APRs.

2	I take from the evidence that he intended to refer to the 11 December 2020 letter.

[12]	Rolleston Prison apologised for the original mistaken advice that a necklace could be issued to Mr Smith and offered to cover the cost of returning the necklace and said the Prison would consider reimbursing costs associated with posting the item to prison.

[13]	On 9 December 2021, while Mr Smith was in Rimutaka Prison, he completed a property request form for a “Necklace – Rosary with a Christian cross”.

[14]	This form was approved by Corrections staff in mid-January 2022. In February 2022, the Rimutaka Prison issued Mr Smith a Christian crucifix attached to a silver necklace. The necklace was issued under cl 1.2 of the APRs.

[15]	Rimutaka Prison maintains this was a mistake.

[16]	On 8 June 2022, the Rimutaka Prison revoked the February 2022 authorisation, and removed the necklace from Mr Smith.

[17]	On 14 June 2022, following a complaint and Official Information Act 1982 and Privacy Act 2020 requests by Mr Smith about the necklace removal, the second respondent wrote to Mr Smith advising him that the necklace was not an authorised item of property. The letter explained that a necklace can be used for self-harm or to harm others.

Law

[18]	The primary source of control over prisoners’ property is s 43 of the Act, which specifies the following terms:

43	Authorised property

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

(a)	any condition set out in rules made under section 45A; and

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

(c)	the condition described in section 44(1).

(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

(c)	the item may be used to circumvent practices or procedures in the prison; or

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

(e)	the item is objectionable; or

(f)	the item may assist a prisoner to—

(i)	discover new methods of committing offences; or

(ii)	continue offending; or

(g)	the item may interfere with the effective management of the prison.

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

(a)	if the prisoner is—

(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(1)(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

(c)	in any other circumstances specified in regulations made under this Act or rules made under section 45A.

[19]	The APRs are made pursuant to s 45A of the Act, which provides:

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.

…

(2)	The Commissioner of Police—

(a)	must, in respect of all Police jails, make rules declaring the items of property that prisoners may be issued with or allowed to keep; and

(b)	may make rules specifying conditions that attach to an item of property so declared.

…

(3)	Rules under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

[20]	The relationship between ss 45A and 43 of the Act is reflected in cl 1 of the APRs as follows:3

1. Note that the following rules apply pursuant to section 45A of the Act. 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 section 43 of the Act. Prisoners may not be issued with or allowed to keep any other property items.

[21]	The APRs contain a comprehensive list of items of property a prisoner may be issued with or allowed to keep, subject to conditions imposed in the APRs, the Act and the Corrections Regulations 2005.

3	Department of Corrections Authorised Property Rules 2020, cl 1.

Necklaces and rosaries

[22]	Clause 1.2 of the APRs refers to “Religious Items”. More particularly, item 1.2c refers to a Christian crucifix or cross, and Roman Catholic rosary in the terms that follow:

Crucifix or cross to be free standing or pin board mounted.

[23]	Clause 1.4 of the APRs specifies which jewellery items can be issued to prisoners. The only jewellery items specified are a wedding band, a wristwatch, and one pair of plain stud or earrings (only if these were worn at reception).

Radio and electrical items

[24]	Schedule 3 of the APRs relates to electrical items and prescribes the conditions that apply to all electrical items to be issued to a prisoner. The conditions include the type of power source, a prohibition on USB ports or docking stations, and a stipulation that if an item has two or more functions (eg radio and clock) the prisoner is not permitted to have an additional item with similar functionality. The conditions state that all electrical items must have a technical safety check prior to being issued and must have attached the serial numbers and original manufacturer’s identification sticker.

[25]	Clause 3.2 lists the authorised electrical items. At 3.2(b), that includes a radio/cassette/CD player. The associated specified conditions are as follows:

May have one or more functions.

Size restriction to be a maximum of 30 cm high, 60 cm long and 25 cm wide. Not to exceed 6 watts RMS or 60 PMPO (Peak Music Power Output).
The speakers are not to be detachable.

Mr Smith’s submissions

[26]	Mr Smith raises four grounds in his pleadings.

First cause of action

[27]	Mr Smith’s central submission is that the APRs are ultra vires because they do not recognise the common law discretion to allow an exception in consideration of individual circumstances. He says this is especially so as s 45A of the Act, when interpreted in a manner consistent with BORA (in particular ss 14 and 15), principles of natural justice, and New Zealand’s international human rights obligations, necessitates such an approach.

[28]	Mr Smith also references the illogicality of the rules, explaining that it is very difficult to find an APR compliant stereo due to the cumulative impact of restrictions on USB ports, Bluetooth, speaker  detachability, and  power  and  size  conditions. Mr Smith expressed concern about the size restrictions as they can be illogical in the sense that they restrict stereos of small volume but allow stereos of overall larger volume that meet the size restrictions. He points out that the Panasonic RX-D29 stereo is 60 per cent smaller than the maximum allowed by the APRs when measured by volume rather than shape.

[29]	Mr Smith deposed other prisoners at Rimutaka Prison had stereos that were declined for issue to him. In relation to the necklace, he also deposed he had seen other prisoners wearing rosary, pounamu and manaia around their neck without restriction. He submits this shows there is not consistency in the APRs.

[30]	Mr Smith seeks a declaration that the APRs are unlawful and an order directing the first respondent to amend the APRs to provide for a discretion to allow an exception, having regard to individual circumstances.

Second cause of action

[31]	Mr Smith contends the second respondent’s decision declining to issue the stereo as authorised property was unlawful in failing to recognise any exception to the APRs, thereby abdicating discretion.

[32]	Mr Smith adopts the same submission in relation to the 8 June 2022 decision to revoke authorisation for the necklace and further submits that the second respondent

acted unlawfully in failing to consider Mr Smith’s personal circumstances that would adequately mitigate any safety risk.

[33]	Mr Smith submits there is a common law requirement that requires the second respondent to consider, on a case-by-case basis, an exception to the APRs.

[34]	Mr Smith seeks declarations that the decisions “acted under the dictation of the s 45A of the Act Rules, and/or abdicated the second respondent’s discretion to those Rules”. He seeks an order in the nature of certiorari quashing the decisions and directing the second respondent to reconsider the matters.

Third cause of action

[35]	Mr Smith submits the APRs, and the property decisions in relation to the stereo, are ultra vires when considered against s 14 of the BORA. He further submits the APRs, and the 8 June decision in relation to the necklace, are ultra vires given s 15 of the BORA.

[36]	In relation to s 14, Mr Smith submits the stereo would allow him to receive information and opinions through radio stations, educational tapes and CDs, and music of his choice.

[37]	In relation to s 15, Mr Smith submits he was christened a Roman Catholic, attends Christian services in prison and has studied Christian theology. He submits wearing a Christian crucifix is a manifestation of his religion and belief, and there is no demonstrably justifiable limitation on his rights to prevent him from wearing it.

[38]	Mr Smith seeks a declaration that the APRs breach ss 5, 14 and 15 of the BORA and are accordingly ultra vires. He also seeks declarations that the decisions regarding the stereo and necklace breached the BORA and were ultra vires. He seeks an order in the nature of certiorari quashing the 4 March and 8 June 2022 decisions and directing that these decisions are reconsidered.

Fourth cause of action

[39]	Mr Smith pleads that the 4 March 2022 decision in relation to the stereo was unreasonable and in breach of s 6(1)(f)(ii) of the Act which specifies the principle that decisions about persons under control or supervision be taken in a fair and reasonable way. He submits that the model of stereo he sought is issued to prisoners at Rimutaka Prison, and it is discriminatory that he has been denied the issue of the same stereo. Mr Smith submits the volume of the stereo is 60 per cent less than the maximum volume permitted by the APRs. He argues cl 3.2(b) of the APRs dealing with radios, cassettes, and CD players, has not been updated since being adopted verbatim from the repealed sch 1 to the Corrections Regulations 2005. He submits the advice given to him that there is at least one stereo available on the market that meets the APRs’ conditions implies there is only one such stereo available.

[40]	Mr Smith pleads the 8 June decision in relation to the silver necklace was unreasonable as a Christian crucifix attached to a rosary is authorised property under the APRs, and there are no conditions imposed by the APRs restricting the wearing of a rosary around the neck. Mr Smith relies on the fact that pounamu and manaia can be authorised property under the APRs and explains they are customarily worn around the neck. He also notes the APRs authorise extension cords up to two metres and other electrical items, each with cords, in addition to shoes with laces, and bedding. He contends the respondent has been unable to explain why a Christian crucifix on a silver necklace is a comparative safety risk in terms of strangulation.

[41]	Mr Smith seeks a declaration that the decisions declining the stereo and revoking approval for the necklace were unreasonable and in breach of s 6(1)(f)(ii) of the Act. He also seeks an order in the nature of certiorari quashing both decisions and directing that they be reconsidered.

Respondent’s submissions

[42]	Mr Watson, for the respondent, submits there is no general discretionary decision-making ability to authorise and issue non-compliant property. Instead, any property not explicitly authorised under the rules is, in effect, “unauthorised”.

[43]	Mr Watson notes the prior prison property regime was governed by sch 1 of the Corrections Regulations 2005. He submits this schedule allowed for discretion, whereas the current APRs do not contain any targeted discretions. However, the present APRs are more prescriptive and contain targeted and specific discretions.   Mr Watson submitted it can be inferred that the shift to a regime with increased detail and removal of a general discretion was a deliberate attempt to promote consistency in decision-making. He argues that the desire for consistency across all prisons is supported by s 33 of the Act. The section provides that managers can, with authorisation, make rules they consider appropriate for the management of their prison and the conduct and safe custody of the prisoners. However, this power is restricted by s 33(6), which specifies no rules may be made under that section that relate to matters for which rules must of may be made under s 45A.

[44]	Mr Watson identifies the targeted discretions and open textured classes in the current APRs. These include a discretion for the Prison Director to authorise one pounamu or mania under cl 5.3. Additionally, Mr Watson submits items can be added to the APRs, and applications can be made to change conditions which have been specified for items of authorised property, following the process set out in the Prison Operations Manual.

[45]	Mr Watson submits Mr Smith’s contention that every rule promogulated under s 45A must allow for an exception is incorrect. He contends the authorities and texts Mr Smith cites to support this proposition apply to a different fact pattern. Namely, where a decision-maker has voluntarily adopted a policy to guide the application of a decision-making power conferred under an enactment. Mr Watson acknowledges that although policies that guide decision-making in this situation advance the administrative law by virtue of consistency in decision-making, if any such policy is so rigid that it denies a discretion which the relevant Act has conferred, that policy will be unlawful.4 Mr Watson notes the APRs are not a policy, rather, they are secondary legislation promulgated under s 45A of the Act. Therefore, Mr Watson submits the general principles courts have developed in the exercise of their supervisory jurisdiction when reviewing policies are not relevant in this proceeding.

4	Citing Smith v Attorney-General [2019] NZHC 835, [2019] NZAR 767 at [44] – [47].

[46]	The second respondent maintains it was under no duty to consider Mr Smith’s individual circumstances in applying cl 3.2(b) of the APRs.

[47]	As to the lawfulness of the APRs, Mr Watson first emphasised there is a presumption that secondary legislation is valid, and says the salient question is whether the APRs are within the scope of the empowering legislation. He puts forward a three-step process: construe the empowering provision, ascertain the meaning of the secondary legislation, and assess whether the secondary legislation complies with the empowering provision.

[48]	To Mr Smith’s first cause of action, Mr Watson argues this Court has acknowledged that s 45A is a broad empowering provision through which Parliament has required the Executive to make decisions about which property prisoners may possess in the prison environment. He cites Mitchell v Attorney-General, where this Court described the binary nature of the APRs as being a way to discriminate between items which may be retained and those that may not.5 Mr Watson contends the text of s 45A makes it clear Parliament did not contemplate every rule under the APR being subject to an implied exemption.

[49]	Mr Watson submits the purpose of the Corrections system is to improve public safety and contribute to the maintenance of a just society. He says there is a strong focus in the Act on promoting safety in the prison environment and fair treatment for prisoners (both within specific prisons and across all prisons in New Zealand). In the context of the prison environment, Mr Watson contends these purposes are advanced with clear rules that are not subject to an implicit discretion. Such rules promote consistency, avoiding differential treatment and facilitating the transfer of prisoners where necessary. Mr Watson reiterated his submission in relation to s 33(6), noted above at [43]. He also referenced two decisions of this Court in which the importance of clarity and the “black and white” nature of the rules was acknowledged.6

5	Mitchell v Attorney-General [2014] NZHC 1339 at [57].
6	Mitchell v Chief Executive Officer, Department of Corrections [2015] NZHC 347 at [64]; and
Mitchell v Chief Executive Officer, Department of Corrections [2017] NZHC 2090 at [25].

[50]	Mr Watson submits the rules regulating jewellery and stereos promote the objects of the Act by encouraging the safety and orderly function of prisons. He explained necklaces pose an obvious safety risk in the prison environment and have never been declared an authorised item of property. Likewise, he submitted stereos have always been subject to size and maximum volume restrictions for reasons of practicality and safety. Significant noise can cause disturbances, mask acts of violence, and require increased vigilance from Corrections staff and take them away from other duties. Size restrictions ensure devices fit within cells and protect against the smuggling of contraband. Further, the Executive is better placed than the courts to make decisions which touch on the safety of the prison environment.

[51]	These rules, Mr Watson submits, do not offend principles of fairness and are not unduly restrictive. Stereos which comply with the rules can be purchased at reasonable prices from New Zealand retailers.

[52]	As to the second step, Mr Watson notes the meaning of the APRs is clear. They declare the property prisoners are allowed to keep and receive. Anything not authorised is unauthorised. Necklaces are not authorised, a stereo is authorised, provided it meets certain specifications.

[53]	For step three, Mr Watson contends the APRs, including those rules at issue in the present case, comply with s 45A. They fall within the literal terms of the empowering provision and the broad power they repose to declare permissible property and attach conditions on specific items. The APRs also promote the purpose of the Act by enhancing the safety of the prison environment.

[54]	Mr Watson argues the rules applying to radios/cassettes/CD players and jewellery do not unjustifiably limit BORA rights. He accepts that a rule which unjustifiably limits a protected right will be ultra vires the Act. However, a justifiably limited right is acceptable. He cites the case of Hudson v Attorney-General for the principle that the prison context must be brought to bear on the analysis of whether the right is justifiably limited.7 Some deference is appropriate for the expertise and experience with those charged with controlling the prison environment.

7	Hudson v Attorney-General [2017] NZHC 1441, [2017] NZAR 1293.

[55]	If the s 14 right to freedom of expression is engaged at all, Mr Watson submits it is only minimally impaired by the specific conditions of the APRs. Mr Smith is still able to obtain a new or second-hand radio/cassette/CD player which is rules- compliant. These limited restrictions are rationally linked to the safety and orderly functioning of the prison, which are important objectives within the Corrections context. A prison requires some limit as to the maximum dimensions and sound- making capacity of such devices, and where to draw that limit is a matter best left to Corrections staff given their specialist knowledge and experience.

[56]	Mr Watson makes a similar argument in respect of the necklace. The APRs permit a crucifix, provided it is free standing or pin board mounted. A rosary is also permitted provided it is not worn as a necklace. Necklaces give rise to safety concerns in a prison context. The APRs allow ample scope for Mr Smith to manifest his religion by way of religious items. Any limits on his rights are minimal and justified.

[57]	Mr Watson then turns to address whether any of the decisions made were unreasonable, noting the high standard required to meet the legal test. He contends the arguments raised by Mr Smith are meritless.

(a)	The conditions on the relevant items are not so restrictive as to make the items effectively unauthorised.

(b)	While pounamu and manaia can be authorised under cl 5.3(j) of the Rules, that approval is at the discretion of the Prison Directors and, consistent with the paramount duty in s 6(1)(a) of the Act, approval should not be granted for pounamu and manaia which have a cord attachment, and which are in effect a necklace and give rise to the same safety concerns as a necklace.

(c)	Mr Watson does not accept other prisoners have been issued the same stereo denied to Mr Smith. However, even if this was the case,

Mr Watson notes that previous incorrect decisions to permit the stereo do not make the present correct decision unreasonable.8

(d)	In removing the necklace from Mr Smith, staff were not required to first allow him the opportunity to make submissions as to why he should retain it. Mr Smith was not permitted the necklace; fairness and reasonableness required no more than explaining that to him. It would compromise prison functions to require the respondents to allow a prisoner to make representations before an unauthorised item is removed from them, and there is no basis for such a requirement.

Reply submissions

[58]	In Mr Smith’s reply submissions, he accepts there is a presumption of validity in the context of secondary legislation and that the onus is on him to prove invalidity. Mr Smith also accepted the three-step test outlined in Commercial Fishers Whanau Inc v Attorney-General is the correct test to be applied in this proceeding.9

[59]	On the first step of the inquiry, involving interpretation of the Act under which the secondary legislation purports to be made, Mr Smith relies on his initial submissions but emphasises the empowering provision must be given the meaning that is “fair, large, and liberal as will best attain its objects”. He submits clear and strict statutory authorisation to encroach on personal rights is required. In relation to the rule against prohibition, Mr Smith notes the respondents’ submission that the rule against prohibition does not envisage any degree of prohibition (meaning that if there is one stereo on the market for sale then that cannot be a breach of the rule against prohibition because there is no total prohibition). Mr Smith submits that, contrary to this submission, the degree between  partial  and  total  prohibition  is  recognised. Mr Smith argues s 45A, properly construed, provides prison directors with a discretion.

8	Citing Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 2373 at [58] – [64].
9	Commercial Fishers Whanau Inc v Attorney-General [2019] NZHC 1204 at [18].

[60]	Mr Smith accepts the current APRs prevent the necklace and stereo from being issued. Mr Smith seemed to accept the meaning of the APRs were clear and do not allow Prison Directors a discretion to authorise “other property”. But he says these restrictions mean the APRs do not comply with the empowering act. Further arguments were raised about how the APRs are ultra vires because they do not differentiate between prisoners based on their security classification or the nature of their sentence.

[61]	Mr Watson, counsel for the respondents, filed a memorandum on 30 August 2022 addressing Mr Smith’s post-hearing submissions. He submits they are not strictly in reply. In particular, he notes Mr Smith’s submission that the APRs are ultra vires because they do not differentiate between prisoners on the basis of their security classification or make special provision for prisoners serving indeterminate sentences, is a new argument. Mr Watson refers to the principle of civil procedure that judicial review proceedings are defined by the pleadings so that the issue is understood by all parties beforehand and can be argued properly.10 Mr Watson submits the absence of any reference to this argument in the pleadings, or the material facts underpinning them, means the Court does not have the full factual foundation before it to make determinations (such as evidence about the nature of the security classification regime). Nor does the Court have submissions from the respondents addressing these issues. Mr Watson acknowledges access to justice imperatives weigh against taking technical points against lay litigants but submitted this is not a technical point, rather it is an issue which would risk this proceeding miscarrying.

[62]	The issues raised in Mr Smith’s reply submissions can effectively be put to one side as they will not influence the analysis set out below.

Analysis

[63]	I deal briefly with two of the matters raised by Mr Smith as to a common law rule for exceptions and the allegation that the decisions involved an abdication of discretion or acting under dictation.

10	With reference to Reay v Attorney-General [2016] NZCA 519, [2016] NZAR 1672 at [16].

[64]	Mr Smith’s central contention is that the property rules and decisions made regarding his property were unlawful because they did not permit the exercise of a discretion to allow an exception in consideration of individual circumstances.

[65]	There is no general common law rule that every rule must have an exception.

[66]	Mr Smith’s contention as to a common law rule for exceptions and abdication of discretion/acting under dictation by the respondents relates to authorities determining that if a policy that guides decision-makers is in place, then it should not completely fetter the decision-makers’ power.11 When a body is invested with discretionary powers, that body must bring its discretion to bear in every decision. While a policy may serve as a useful guide which enhances consistency, it must not operate so rigidly so as to effectively remove the discretion. But that is not what is at issue in the present case. The Court is not concerned with a policy but with subordinate legislation and its consistency with its empowering provision.

Are the APRs ultra vires?

[67]	Section 45A is set out above at [19], but for ease of reference is reproduced below:

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.

[68]	The law in respect of a challenge to the validity of delegated legislation is relatively settled. The question is whether the statutory power to make the APRs has been exercised in accordance with the empowering provision of s 45A of the Act.

11	Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].

[69]	The approach was laid out in Commercial Fishers Whanau Inc v Attorney- General as follows:12

This requires analysis of the scope of the authority conferred by Parliament in light of the purposes for which those powers were conferred. Where Parliament has given the Executive a broad power to regulate, it is a power to carry out the purposes of the empowering legislation and the Executive's discretion is constrained by those purposes.

The second step is to determine the meaning of the regulations, and the third step is to decide whether the regulations comply with the empowering Act.

The focus is on the legal limits of the power, not the merits of its use; unless regulations are irrational, review is not an opportunity to assess the reasonableness of the policy being promoted.

(footnotes omitted)

[70]	This Court has previously recognised the “broad empowering statutory language” of s 45A.13 It is plain from the wording of the section that Parliament envisaged that the Chief Executive of the Department of Corrections must make rules deciding and declaring what property prisoners can and cannot possess in the prison environment or imposing conditions that attach to an item of property (as has been done with the stereo).

[71]	Recently, Kós J, as he was then, found the Act specifically contemplates “rules being made to discriminate between those items which may be retained, and those which may not”.14

[72]	This interpretation accords with the purposes of the corrections system as set out in the Act, which includes “providing for corrections facilities to be operated in accordance with rules set out in this Act”.15 This interpretation also accords with the broader context in which these rules must be seen, namely the prison environment. In such an environment, clear rules can promote safety for both staff and prisoners, as well as providing a degree of consistent treatment for all prisoners.

12	Commercial Fishers Whanau Inc v Attorney-General [2019] NZHC 1204 at [15] – [17].
13	Cheng v Chief Executive, Department of Corrections [2020] NZHC 2158 at [26].
14	Mitchell v Attorney-General, above n 5, at [57].
15	Section 5.

[73]	I consider that on this interpretation of s 45A, the Chief Executive is able to make very clear rules. As both parties appear to accept, the APRs do not allow for discretion to make exceptions unless that discretion is expressly reserved as in the case of pounamu and manaia. There is nothing suggesting these rules must always have exceptions to them. Instead, to promote the principle in s 6(1)(f) of the Act, which states the corrections system must ensure the fair treatment of persons under control or supervision,  and  the  paramount  principle  of  maintaining  public  safety  under s 6(1)(a), if a rule within the APRs is expressed clearly, it is consistent with these principles for those rules to exclude a decision-making discretion.

[74]	In this sense, I agree with the observations of Williams J that, in a prison environment, rules (including conditions attaching to items of property) should be known and clear and can be as black and white as may be consistent with ss 5 and 6 of the BORA.16

[75]	Mr Symonds deposed that necklaces pose an obvious threat in relation to self- harm or strangulation and have never been declared as an item of authorised property.

[76]	Likewise, Mr Watson submits that stereos have always been subject to size and maximum volume restrictions for safety and practicality reasons. Devices which can emit noise at significant volume may frustrate those living or working within close quarters or prevent the staff from hearing sounds associated with any potential acts of violence. Size restrictions are also said to be needed to ensure that stereos fit within prison cell spaces and to minimise the chance that contraband is hidden within the stereo.

[77]	I agree that these are practical reasons relating to the safety and orderly functioning of the prison. The rules also promote consistency in decision making across custodial facilities in New Zealand. Prisoners may need to be transferred between facilities for a variety of reasons; the rules encourage fair treatment of such prisoners in respect of their permitted items.

16	Mitchell v Attorney-General, above n 5, at [64].

[78]	Promoting fairness is also a feature of the principles guiding the Act. Evidence has been given that stereos are available to prisoners at a reasonable price from retailers within New Zealand, although the Department of Corrections acknowledges that finding rule-compliant stereos is not as easy as it once was. The APRs are under review, with one aspect of this review being ensuring that the conditions applying to stereo players do not unduly inhibit access to these devices.

[79]	Taking the broad empowering language of the statute, and the logical connections between the APRs and objects of the Act, I am comfortable concluding the APRs comply with the Act and are not ultra vires. Section 45, when viewed within the statutory context, clearly contemplates the creation of rules such as the APRs.

[80]	I do not consider other considerations outweigh the factors encouraging this conclusion. For instance, s 6(g) of the Act which provides that “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”.  While it is appropriate to have consideration for   New Zealand’s international obligations such as under the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) and the International Covenant on Civil and Political Rights (ICCPR), they do not upset the conclusion that the parts of the APRs at issue are within the contemplation of the empowering legislation.

[81]	Finally, Mr Smith cites Hudson v Attorney-General as authority that the courts will not endorse any rule that is totally prohibitionary.17 That case may readily be distinguished. It concerned a prisoner seeking to access legal documents. The Court held s 45A did not authorise a blanket restriction on a high-value manifestation of the right to freedom of expression. It is not authority that the APRs cannot be prohibitionary in any way which might offend against s 14.

17	Hudson v Attorney-General [2017] NZHC 1441, [2017] NZAR 1293.

Do the APRs unjustifiably limit BORA rights?

[82]	In relation to s 14 of BORA, Mr Smith submits the stereo would allow him to receive information and opinions through radio stations and allow him to receive information, opinions, and music through educational tapes and CDs of his choice.

[83]	In relation to s 15 of BORA, he submits he was christened a Roman Catholic, attends Christian services in prison and has studied theology. He submits that wearing a Christian crucifix is a manifestation of his religion and belief.

[84]	Mr Watson submits that a compliant stereo would address the applicant’s concerns regarding accessing the radio station and playing CDs and tapes. He contends that any limit on freedom of expression is justified by the importance of the objectives of safety and orderly functioning in the prison environment.

[85]	Likewise, Mr Watson submits Mr Smith’s s 15 right is only impaired to a minimal extent such that the limit is justified. He says the APRs permit Mr Smith to have a crucifix in his cell, provided it meets the condition that it be free standing or pin board mounted. This would allow him to manifest his religion.

[86]	As to the matter of rosaries, Mr Watson argues the rules permit Mr Smith to access a rosary, however this cannot be worn as a necklace given that necklaces are not authorised property.

[87]	I accept the Corrections Act does not expressly, or by implication, permit the promulgation of secondary legislation that  unjustifiably  limits  protected  rights.  Mr Smith’s rights are engaged in the matter. The right to freedom of expression encompasses the right to receive information,18 and the wearing of religious items such as a rosary and crucifix are a manifestation of religion. However, in my view the APRs do not unjustifiably limit Mr Smith’s right to freedom of expression and right to manifest his religion and belief for the reasons that follow.

18	Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 at [69].

[88]	Whether a limit is justified pursuant to s 5 BORA is guided by a proportionality assessment comparing the intended end with the means used.19 Accepting the APRs may not unjustifiably limit protected rights, “justification” must nevertheless be informed by the context of the case. Mr Smith is lawfully detained as a punishment which, by its very nature, infringes on BORA rights. The extent to which rights are curtailed must be assessed recognising the requirement for the Department to maintain good order and security in prisons and the fact that some deference should be accorded to the expertise and experience of those charged with managing the prison environment.20

[89]	I accept there is a rational connection between the specific APRs and the goal of maintaining safety. Further, the limits imposed on Mr Smith are proportionate to that end. There must be a limit drawn at some point and in some way to certain technical aspects (noise and size) of devices like stereos. I accept the submission of Mr Watson that the Department of Corrections’ staff are well placed to set those limits, and there are compliant stereos available to Mr Smith (though I acknowledge this has become more difficult as technology has advanced).

[90]	Similarly, there is scope for Mr Smith to manifest his expression by way of the rosary and crucifix. Those items are permissible, subject to the conditions of the APRs. While there is a limitation on the right to manifest religion, it is proportionate to the intended end.

[91]	The APRs have not operated to unjustifiably limit Mr Smith’s rights.

Were the decisions or regulations made by the respondents unreasonable?

[92]	The APRs are enacted under s 45A of the Act. Because the APRs do not provide for any discretion to be exercised by the respondent, as has been discussed above, the decisions made cannot have been unreasonable. Accepting Mr Smith’s evidence other prisoners have been issued RX-D29 stereos, errors in those decisions do not make the present decision unreasonable.

19	R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [123].
20	Hudson v Attorney-General [2020] NZHC 1608 at [36].

[93]	Regulations made under statute must be reasonable. While there has previously been doubt as to that position,21 the now-accepted position is as noted in Turners & Growers Exports Ltd v Moyle:22

In principle, I prefer the view that regulations can be attacked as ultra vires an empowering statute if the regulations are so unreasonable that their making would not have been contemplated by Parliament as empowered by that statute. In such situations, as a matter of ordinary interpretation of Parliamentary intention, the empowering statute is read down accordingly. Such extreme situations will not be frequent.

[94]	The test is a particularly stringent one, requiring the subordinate legislation to be “outside the limits of reason”.23

[95]	The APRs are not perfect and appear to require fine tuning to ensure they remain apace with technological advances. Nonetheless, they have a clear, rational connection with the goals and purposes of the corrections system and legislation. As I have found, they do not operate to totally bar Mr Smith’s access to either stereos or methods of manifesting his religion. They are far from being outside the limits of reason.

Result

[96]	Mr Smith’s application for judicial review is dismissed.

Concluding remarks

[97]	Despite my findings, I can understand Mr Smith’s frustration. In relation to the stereo, Mr Symonds has acknowledged that it can be difficult to find a stereo that complies with the rules currently in place. The initiation of a review of the rules to ensure they remain fit for purpose, especially in terms of technology, appears to be much needed.

21	Gallagher v Attorney-General HC Wellington CP402/88, 28 July 1988.
22	Turners & Growers Exports Ltd v Moyle HC Wellington CP720/88, 15 December 1988 at 49. Applied in H v Minister of Immigration [2021] NZSC 192.
23	Criminal Bar Association of New Zealand Inc v Attorney-General [2013] NZCA 176, [2013] NZAR 1409 at [136], citing Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131.

Costs

[98]	The respondents have been successful. If agreement cannot be reached as to costs, the parties may file memoranda as to costs no longer than five pages.

[99]	The respondents’  costs  memorandum  is  to  be  filed  and  served  within  10 working days of the date of delivery of this judgment. Mr Smith’s costs memorandum is to be filed within 10 working days following service of the respondents’ memorandum. If memoranda are filed, I will determine costs on the papers.

...................................................
Eaton J

Solicitors:
Crown Law Office, Wellington

Copy to:
Phillip Smith – Applicant