- Date published:
11:05 am, October 29th, 2019 - 14 comments
Categories: articles, blogs, Kelvin Davis, Media, Politics, uncategorized - Tags: bill of rights act, chris trotter, corrections, false facts, first amendment, free speech, freedom of expression, sixth amendment
I was reading one of Chris Trotters reflections at Bowalley Road this weekend which looked at the Corrections Amendment Bill 2018, that just passed its 3rd reading. “Putting The Check In Right-Wing Prisoners’ Mail” appears to claim that the whole of the bill was to :-
When a letter penned by the alleged Christchurch Shooter was mistakenly permitted to leave Paremoremo Maximum Security Prison […] an immediate cry went up for increased legal restrictions on prisoners’ right to communicate with the outside world.
No matter that the power already existed to censor or withhold prisoners’ mail; […]
[it] offered a wonderful opportunity to place upon the statute books, for the first time, vastly expanded legal powers to restrict New Zealand citizens’ and residents’ freedom of expression.
(my apologies for the shortened quotes – I removed some of the florid flourishes to get get to the claim – my sections in italics).
I thought that was rather odd. Mostly because I hadn’t heard anything about this.
So I had a look at the bill (as passed in committee). As with all of these amendment bills it is an amalgam of rewrites of sections of the existing Act from 2004. In programmers terms, it is a ‘diff’ of what was changes, additions or deletions. Often with the previous text and amendments to the proposed bill (as shown below).
One of the problems with Chris Trotter’s article was that he didn’t state what the section he was complaining about. After searching it for a while, I still wasn’t too sure about exactly which section he was talking about.
So I dug around on the web for a few minutes and pulled up overviews from the Law Society, and the documents pre-released from the Cabinet Social Wellbeing Committee. Curiously, neither made any particular mention of the heinous small crime against ‘Free Speech’ (such a silly misnomer) that Chris was asserting. Which was surprising since both were about the bill after the third and second reading respectively.
I suspect that what he was referring to were these two changes.
They are an extension of section 104 which relates to sending mail and the balancing between maintaining the privacy and family contacts of prisoners with the countervailing organisation of intimidation of witnesses and prison smuggling. Section 108 is all about same but related to receiving of mail.
Both appear to be updates to take notice of the changes to the Human Rights Act 1993 and the Victims Support 2002.
Plus the increasing emphasis in the courts of ensuring that trials and appeals in court aren’t interfered with arseholes with keyboards who temporarily feel that rules and laws of our civilisation do not constrain them – ie people like Cameron Slater or Dermot Nottingham. The complete self-entitled dickheads of the net.
Anyway, I can’t see how either of these changes constrain the freedom of expression protections in the Bill of Rights Act 1990. Mostly what they appear to be doing is setting the balance points of the several different Acts within the very specialised confines of Corrections Act.
Normally this low level balance functionality would just be left to the courts. However like children, the mentally inform, and other specialised groups – prisoners are in a strange place legally. They have a set of appointed guardians who need to have clear positions and responsibilities about what is permissible legally. After all, prisoners have limited recourse to courts outside of their cases and appeals. Which is why the Corrections Act gets 193 pages of detailed instructions.
These clauses are just tighter specifications about what the balance points are. Not only for the public service, bit also for the contractors at places like the Wiri prison.
In my searching, about the only thing that I found that even referred to these sections was this dog whistling from Kelvin Davis, Minister of Corrections
“During the Committee of the Whole House, I tabled a Supplementary Order Paper that made a number of changes, including strengthening prison mail laws.
“This puts Corrections in a much stronger position to stop prisoners sending mail that attempts to radicalise or influence others, promotes violence or hostility against our community, or re-victimises those who have already been hurt.
“We have added an explicit provision that allows for the withholding of prison mail that promotes or encourages hostility towards any group of people on the grounds set out in section 21 of the Human Rights Act,” Kelvin Davis said.
Which is where I suspect that Chris Trotter sourced his objections from – a press release from Kelvin Davis playing simple politics. Looking at press releases rather than looking at the legal sources is a mugs game. Between these two mugs, I can see another dumb arse internet myth in the making that I have to deal with for the next decade.
Which is just irritating.
Mind you, that wasn’t the only bit of mythological bullshit floating around. What about this one in Chris Trotters column.
How fortunate for the world that the First Amendment to the American Constitution made it impossible for Alabama’s prison authorities to avail themselves of legislation such as New Zealand’s Parliament has just passed. Had they possessed in 1963 the legal authority we have vouchsafed to our prison wardens in 2019, can it be doubted that Dr Martin Luther King’s celebrated “Letter From Birmingham City Jail” would never have seen the light of day?
Ah yes. The number of things wrong with that paragraph bear observing. How fortunate that we have the internet and especially wikipedia – the starting point for drilling. I commend this innovation to Chris Trotter’s attention.
It wasn’t ever a first amendment issue for the prison authority. The ‘letter’ wasn’t ever passed through the prison mail. Mostly because the 10-12 days that King was in jail on that occasion long enough to qualify for using mail. He was effectively on remand waiting for a court hearing having refused to ask for bail for political reasons.
The ‘letter’ was mostly passed to his lawyers in little bits. That they were visiting was made under the cover by the 6th amendment on the right to counsel and attorney client privilege – and a little intervention from the Federal government.
It also wasn’t even a letter. The intended recipients were the New York Times as what was effectively an opinion piece. The kind of thing that these days mostly goes up and is read on the net.
If CT would care to look around the Corrections Act, he would find some instruction about the actual rights of prisoners in NZ. They don’t require constitutional protections. They just require the attention of people reading the proposed legislation and objecting at the appropriate times.
What did irritate me was that Chris Trotter missed the only important fact in these clauses. There were added by the Minister using a Supplementary Order Paper during the Committee stage. If you look at the timeline, that means it effectively missed the whole of the select committee phase. That I don’t like. I can’t see any particular other cause for concern – except that Kelvin Davis really does need to be talked to about his press release dog whistling.