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Coddington’s Liberty Belle

Coddington’s Liberty Belle

This week the NZ Herald published a column I wrote on the overlooked implications of the Human Rights Tribunal decision on a prisoner not being allowed to view a letter written about him. For readers of Liberty Belle who don’t receive the Herald, here’s that column - unedited.

Sir Robert Jones does it. Rebecca West and H.G Wells were at it like rabbits. The Happy Hooker published details about the ones she’d received. I’m talking about letter writing – an ancient art requiring pen, notepaper, and time to compose.

To paraphrase Charles Lamb, there are few sights in life that exceed the sight of a personal letter in the mail. Today, when mail consists of clicking the inbox, or sifting through junk in the soon-to-be-anachronistic letterbox at the end of the drive, a handwritten letter from a friend is a rare treat.

So will the Human Rights Review Tribunal’s August decision on the case taken by Andrew Ronald MacMillan against the Department of Corrections be the coup de grace for letterwriting?

The implications of the Tribunal’s decision (RDC Hindle, G J Cook, GJA Kerr) have been overlooked in the justifiable outcry over the issue of convicted criminals receiving compensation for their so-called “human rights” being breached.

MacMillan, a man who’d brutally murdered a teenage girl, went to the Tribunal under Principle 6 of the Privacy Act 1993, which covers “access to personal information”. In essence this means when an “agency” holds personal information on an individual, then said individual is entitled to that information to make corrections. To date, this has mainly involved databases such as those held by credit agencies.

“Agency” is defined as any person or body of persons, corporate, public or private sector and includes a department. It does not include Governor-General, Member of Parliament, House of Representatives, Ombudsman, a court or tribunal in relation to its official functions.

It also doesn’t include a Royal Commission or a commission of inquiry appointed by an Act of Parliament, but could include a Ministerial inquiry.

Although the media are excluded “in relation to news activities”, TVNZ and Radio New Zealand – as state owned entities - are not excluded.

So thanks to this legislation Ronald MacMillan was awarded $1200. Why? Because a man whose daughter had a sexual relationship with MacMillan (in breach of his parole conditions) wrote to the Regional Manager of Paparoa Prison in June 2000 expressing his concerns.

On receipt of the letter, the prison manager summoned MacMillan and told him about the letter’s allegations. MacMillan’s request for a copy was refused on the grounds that the letter was written not to the prisoner, but to the prison manager.

The father, however, was not the only one disturbed by MacMillan’s behaviour. Three months later a probation report was prepared for the Parole Board, which also linked MacMillan’s earlier offending with his activities involving his subsequent sexual relationship with the teenage girl.

Nonetheless, when MacMillan followed up his request in writing, the prison manager released part of the letter to him. But this wasn’t enough, and after MacMillan’s appearance before the Tribunal, the three members ruled that under the Privacy Act he was entitled to see the entire letter. That MacMillan was denied this ‘right’ was “an interference with his privacy”.

Was MacMillan, a serious criminal, a credible witness? Yes, according to the Tribunal: “By his demeanour giving evidence, and in the context of what he told us, we find no real reason to doubt his honesty”, the members stated.

Thus body language – not subject to rigorous cross-examination - is sufficient to influence the creation of case law that could have dire consequences for those who believe private and personal correspondence is just that.

Is this what Parliament intended? Hansard’s First Reading in 1993 indicates otherwise. Hon Doug Graham, then Minister of Justice, declared “the whole purport of the Bill is to protect the individual… so that information collected for a given purpose will not be available for any other purpose”.

The manager of Paparoa Prison did not breach this purpose when he received the letter about MacMillan from a concerned father who did not want his letter passed on to the prisoner. But his rights were overridden by the “principles” of the Privacy Act.

Employers should be concerned. If I apply for a job and my former employer writes to my future boss telling her why I shouldn’t be employed, and I find out about the letter, the recipient of the letter must give it to me or face being hit with compensation and costs. Will employers be honest in their referrals in future?

Can schools risk being frank when writing to another school about a pupil moving on?

Can any of us – plain old gossips included – ever again risk writing merry little epistles detailing the salacious antics of a mutual acquaintance?

And what happens to freedom of the press when broadcasters are owned by the State?

National’s Justice spokesman Tony Ryall loudly condemned the MacMillan decision and, turning his guns on the Privacy Act, said it should be “gutted and completely revamped” so victim’s rights are paramount. But he was part of the government that passed it.

Justice Minister Phil Goff says he’ll look at compensation being forwarded to victims of criminals. First introduced as a private member’s bill by Peter Dunne in 1991, this Act has the stain of Labour, National and United Future.

And they’ve all overlooked the potential for the rest of us to become ‘victims’ of the Privacy Act, legislation which was supposed; we were told, to protect us from Big Brother. Ironically, the Act has done nothing to protect the privacy of one Andrew Ronald MacMillan.

Yours in liberty,
Deborah Coddington

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