Terror in Chch
Corrections breaking law in terrorist letter saga: experts
Following news of Brenton Tarrant's letters to 4chan members, Corrections said it would stop him from sending or receiving any mail. Now, experts are saying this violates the law.
The Department of Corrections' decision to temporarily stop alleged terrorist Brenton Tarrant from sending or receiving any mail has been criticised as a knee-jerk and illegal reaction.
Criticism of Corrections' actions - which both the department and its minister have failed to respond to - comes with the launch of a review into official processes for assessing prisoners' mail, after it was revealed another inmate had been allowed to disseminate his extremist views.
On Wednesday, Newsroom revealed that Tarrant had been exchanging letters with at least one member of a far-right message board while awaiting trial for his alleged role in the Christchurch terror attacks.
Following the news, Corrections said it would stop Tarrant from sending or receiving mail "with immediate effect" until it could be sure its processes ensured public safety both in New Zealand and abroad.
However, Wellington barrister Graeme Edgeler told Newsroom that Corrections didn't have the ability to halt all mail to or from Tarrant, saying: "I don't think that is lawful."
Auckland University of Technology professor Kris Gledhill agreed, saying authorities "cannot have a blanket ban" on mail for two reasons.
First, "there is a statutory right to unhindered correspondence with MPs and official agencies...and with legal advisers on legal matters".
"They're entitled to look closely at every bit of mail he sends. They're not entitled to ignore the content of the letters and decide he can't send them anyway."
Second, Gledhill said, Corrections could not prejudge whether correspondence should be withheld. Mail can only be withheld in specific circumstances, such as if it is deemed likely to “endanger the safety or welfare of any person” or “promote or encourage the commission of an offence, or involve, or facilitate the commission or possible commission of, an offence”.
While this gives Corrections significant leeway in withholding individual pieces of mail on a case-by-case basis, they have to examine each letter and make the judgment based on the contents.
"They're entitled to look closely at every bit of mail he sends," Edgeler said. "They're not entitled to ignore the content of the letters and decide he can't send them anyway. They have to decide each letter by each letter whether it can go in or go out."
Since Newsroom first reported on the letter sent by Tarrant, Corrections Minister Kelvin Davis has said he is receiving advice from Corrections on whether or how to amend the Corrections Act 2004 to deal with the unique situation.
"I am considering options on how to strengthen parts of the Corrections Act in regards to correspondence, but decisions are yet to be made," he said.
However, Davis' office did not respond to multiple requests for comment from Newsroom, while Corrections did not provide any response to questions about the legality of its actions.
Law change not needed
National Party corrections spokesman David Bennett said a law change was not needed. "The reality is, there are already laws in place which should have been used to stop this from happening," he said.
Legal experts agree that the Corrections Act leaves the department well-equipped to deal with any potential problems posed by Tarrant's detention.
"What do Corrections need to do? Apply the powers Parliament has given them properly; this will involve taking special care in relation to prisoners who are assessed to present an enhanced risk," said Gledhill.
Edgeler agreed, saying, "I think it already gives them the tools they need. They've got a lot of power to withhold problematic mail from either being sent out or being received. They just have to use that power."
Late on Thursday, Corrections chief executive Christine Stevenson released a statement to media announcing a review into the department's processes for reviewing and assessing prisoners' mail, after Newshub revealed white supremacist Philip Arps had sent the media outlet "hate-filled" letters.
"This is totally unacceptable, it should not have happened, and I apologise for any further distress this has caused," Stevenson said.
Following the news of Arps' letter, all mail of prisoners with extremist ideologies or registered victims would be immediately centralised, pending a full review carried out by an external person or organisation.
Stevenson said she had briefed Davis on a strengthened process which would be put in place for vetting Tarrant's mail. All his correspondence would be vetted by a multi-disciplinary team, partner agencies with specialist knowledge, and Corrections' chief custodial officer.
She also wanted to strengthen the membership of a senior advisory group who provided advice directly to her on prison management, and was continuing to develop advice about potential law changes.