We are delighted to announce that the winner of the NZ Council for Civil Liberties essay prize for 2023 is fifth-year law student Anna Smart with her research paper: Physical Privacy In Prison: Why Dignity Is An Inalienable Right And How The Intrusion Tort Can Protect It.

“I particularly appreciated the way the essay strongly supported the use of the NZ Bill of Rights Act in conjunction with the relevant purposes and clauses in the Corrections Act, while providing context from events and practices both in New Zealand and overseas. It was clearly argued and the conclusion was compelling.” – Thomas Beagle, NZCCL Chairperson

The competition is open to students at the Faculty of Law within Victoria University.

Read the abstract:

People incarcerated in psychiatric segregation units in New Zealand prisons are subject to constant CCTV surveillance. Privacy screening in these psychiatric segregation units is prohibited by the Corrections Regulations 2005; therefore, people incarcerated there are always subject to surveillance – even while using the toilet, shower, and undressing.

Research shows that this kind of surveillance is detrimental to mental health and wellbeing, and in many cases leads to long-lasting harm and poor mental health outcomes. The tort of intrusion upon seclusion is designed to remedy this kind of harm arising from unauthorised intrusions upon physical privacy where there is a reasonable expectation of privacy. While some privacy normally afforded in society is justifiably curtailed in prison, the privacy of one’s ablutions is inherently connected to human dignity and thus should be protected. The Department of Corrections is under a statutory mandate to carry out safe custodial management; however, rehabilitation is a complementary statutory objective which necessitates the preservation of human dignity. Accordingly, competing interests in safety and privacy must be re-balanced.

This paper argues that the tort of intrusion upon seclusion should be extended to capture conduct that is prima facie authorised, but ultra vires in light of the Bill of Rights Act 1990. On this basis, incarcerated people subjected to intrusions into their most private moments should be able to sue the Department of Corrections using the tort of intrusion.