Powell is asking the High Court for a declaration of unlawfulness and wants the policy to be quashed.
Carly Stewart (right) was fatally stabbed by Anna Browne (left) at a pamper party in Te Atatū in October 2016. Photo / NZME
From August 2022, prisoners had been allowed to make free calls to approved numbers for up to three hours a day.
Before that, they paid for phone cards, which they used on pay phones.
The court heard that, since the 30-minute policy took effect in January last year, Browne had been unable to maintain regular calls with her whānau, including her partner, six children and seven grandchildren.
It had been particularly hard on two of her children, who lived with her partner and were used to talking to their mother every day, Powell said.
He said his client was parenting her six children from prison, giving grandmotherly advice, and doing what she could to maintain her important role in the family.
But lawyer Genevieve Taylor, representing the Department of Corrections, explained that, before the change, prison managers had noticed that a minority of prisoners were monopolising the phones, excluding others from using them.
Browne, the court heard, was identified as one of the top 10 telephone users in the prison where she was housed.
On average, Taylor said, prisoners spent about six hours unlocked from their cells each day, although in some units it was only two to four hours a day.
With only so many hours in the day when prisoners could make calls and a limited number of phones in any one unit, some degree of sharing was required.
“This wasn’t about a reduction, about cutting the time people could talk to their families; this was about a fair distribution of access,” she said.
At the time, Corrections defended the change, saying some inmates had been abusing the system, resorting to violence and standover tactics.
But Powell took issue with that, saying affidavits from Corrections had not provided evidence to corroborate or justify claims of violence.
Any incident reports provided to the court did not relate to excessive phone use, he said.
Powell submitted that the decision was unreasonable because it wasn’t supported or justified by evidence.
But Taylor urged the court not to read too much into the fact that not every reason for the decision had been provided to the court.
She said the decision-maker, Corrections’ commissioner of custodial services, set out the reasons for the change in an email to prison general managers, which concerned the fairness and access to phones, because that was the primary reason.
He wasn’t required to set out all the reasons for his decisions, she said.
60% of Māori in prison have children
Powell also submitted that the department had failed to consider the negative impact on prisoners who were trying to maintain and strengthen their contact with whānau, which, in turn, helped their rehabilitation.
He submitted that the policy was detrimental to Māori, whose definition of whānau extended beyond that of a nuclear family.
He said it appeared that no allowance was made for prisoners with large families or caregiving responsibilities who would struggle to support such relationships with the considerable restrictions they now faced in accessing a phone.
He quoted statistics showing 60% of Māori in prison had children.
In the year ending June 30, 2018, 9400 children had a Māori parent in prison at some stage during that year.
And he argued it was also detrimental to women because it ignored their parenting role, as well as being harmful to children’s interests.
But Taylor told the court the importance of staying connected with whānau was at the heart of its decision.
A situation in which some prisoners could not access a phone at all, or had only limited access, because they were being monopolised by a few, was not in the interests of whānau or whānau connections, so the department took the necessary steps, allowing all prisoners 30 minutes of phone access.
“For some people, the benefit of contact with whānau wasn’t being recognised at all, or to the extent it should have been,” she said.
Finally, she said Parliament had directed that prisoners had access to a phone for at least five minutes a week, so the 30-minute daily limit exceeded that minimum requirement.
Justice Christine Grice reserved her decision.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist at the Waikato Times and RNZ. Most recently, she was working as a media adviser at the Ministry of Justice.