New Zealand: No Smoking for Inmates Despite Decision

Source from:  AAP (Australian Associated Press) (au)  07/04/2013

Prison bosses will ignore a High Court ruling that prisoners should be allowed to smoke, saying all jails will remain smoke-free.

On Wednesday, the High Court agreed for a second time with serial litigant and inmate Arthur Taylor that a ban on smoking in prisons is illegal.

The government introduced the ban in all prisons in 2011 and Taylor, who doesn't smoke, challenged that ban December last year.

The High Court then ruled in Taylor's favour, saying banning smoking in Auckland Prison was unlawful, prompting the government to rush amendments through parliament to protect its blanket ban.

"Unfortunately for those in prison who wanted access to tobacco, the government was determined to keep prisons smoke-free," Justice Brewer said in his judgment on Wednesday.

"The law now is that prisoners are banned from possessing tobacco and it is a disciplinary offence for them to smoke it."

In January, Taylor filed further proceedings in the High Court, claiming those amendments were illegal and on Wednesday, Justice Timothy Brewer sided with the prisoner, ruling that they were unlawful, invalid and made without authority.

But the Department of Corrections says it will take no notice of the High Court ruling - confirming prisoners still won't be able to smoke.

"Prisons in New Zealand will remain smoke-free following the court's decision on the legal challenge to our regulations enforcing the tobacco ban," department chief executive Ray Smith said.

The department may be within its rights to ignore the judgment which could be as hazy as the by-product of the topic fought.

Representation for the Attorney-General told the court the High Court judgment was effectively useless because no ruling "could have any utility" under the law changes.

But Justice Brewer said there was a public interest in the unlawfulness of the government's amendments, regardless of the effect of the ruling.

"The effect, or utility, of this declaration is subject to the Corrections Amendment Act 2013," he said.

"I do not in this judgment decide the competing submissions of the parties on how the ouster provisions of the Amendment Act should be interpreted." Enditem