Free speech: Interviewing prisoners - Where does the balance lie?

In TVNZ v AG the Court of Appeal reviewed the factors that need to be assessed when the Chief Executive of Corrections considers media applications to interview prisoners.

This appeal concerned the refusal of the Chief Executive of the Department of Corrections to approve a request by TVNZ to interview an inmate of a penal institution, namely Mr Ahmed Zaoui.

As is well-known, Mr Zaoui arrived at Auckland International Airport having flown from Vietnam on a false passport. Since his arrival, the Refugee Status Appeals Authority has granted him refugee status.

However, at the time of this appeal he remained in detention in Auckland's central remand prison, pursuant to a warrant of committal issued because the Director of Security had made a security risk certificate in relation to him, on which the Minister of Immigration had made a preliminary decision to rely. Mr Zaoui's case has received substantial media coverage.

TVNZ wrote to the Department of Corrections seeking permission to interview Mr Zaoui pursuant to regulation 87 of the Penal Institutions Regulations 2000. Mr Zaoui consented to the proposed interview, but the Chief Executive declined to authorise it.

TVNZ then brought an action in the High Court challenging the decision on the basis of mistake of fact, unreasonableness, procedural impropriety and inconsistency with the right to freedom of expression contained in section 14 of the New Zealand Bill of Rights Act 1990.

At first instance, Justice Ronald Young held that the regulations were not inconsistent with the Bill of Rights Act and were clearly authorised by section 45 of the Penal Institutions Act.

He also held that the limits placed on prisoners' rights to freedom of expression by the regulations were reasonable under section 5 of the Bill of Rights Act.

Justice Ronald Young also emphasised that the integrity of the court system could be undermined by a parallel system of trial by media and noted that the interview was directed at an issue currently before the courts and the Inspector General of Intelligence and Security.

Given these factors, he held that the conclusion reached by the Chief Executive was reasonably open to him, even taking into account the right to freedom of speech.

On appeal, the Court of Appeal made it clear that while there are a number of sound policy reasons justifying limitations on news media interviews with prison inmates and the discretion that is given to the Chief Executive is therefore a wide one, it may, however, be qualified by the requirements of the New Zealand Bill of Rights Act which is applicable to all executive action other than to the extent that it is excluded by statute.

Importantly the Court of Appeal stated that:

In a case in which an inmate who is fully informed of the implications of doing so desires to be interviewed, the inmate's right to freedom of speech would support the application. In those situations the decision of the Chief Executive on an application for approval requires a balancing of that right against conflicting values. In the case of inmates who have been convicted of criminal offending the Chief Executive would have to take account of the interests of victims which is specifically addressed in reg 88(1)(a). It is also relevant that part of the effect of imprisonment as a punishment is curtailment of some freedoms including that of free speech.

The Court of Appeal went on to indicate that Mr Zaoui had not been detained because of criminal offending but rather for administrative reasons under the statutory requirements of Immigration Act 1987. He had not been convicted of any crime. Accordingly, the Court considered the ability to exercise the right of free speech was of particular importance for a person in his position.

The Chief Executive's reasons for refusing the application were set out as follows:

I concluded that an interview of the kind sought was not desirable in the public interest. Such an interview would involve Mr Zaoui directly in the media coverage of the various proceedings and would add to the controversy that had arisen in respect of those proceedings.

As with a remand inmate awaiting trial, I considered that an interview of Mr Zaoui could interfere with the integrity of and public confidence in the various processes that Mr Zaoui had put in train.

I also considered it relevant that, as I had noted, Mr Zaoui had been able to express his position through submissions made on his behalf in the proceedings and through media comments by his lawyers. I therefore decided to decline Mr van Wel's request.

The Solicitor General supported the High Court judgment on the basis that as the review of the security certificate by the Inspector-General of Intelligence and Security was a secret process, the risk of trial by media was particularly acute - as a balanced public discussion of Mr Zaoui's position would not be possible.

The Court of Appeal, however, stated that it could not reasonably be suggested that the determination of the Inspector-General would be influenced by the publicity that would be associated with Mr Zaoui exercising his right of free speech as a result of a television interview of the kind that TVNZ sought to undertake.

The Court was also of the view that it was not open to suggestion that permitting an interview such as the one which TVNZ wished to undertake could harm the process by diminishing public confidence in it.

The Court therefore did not consider that the reasons given by the Chief Executive for his decision to refuse approval could be sustained against the duty to take account of Mr Zaoui's right to free speech.

Enquiries and information

For more information on Bill of Rights Act issues, please email or call Garry Williams on 64 9 916 8661.