Taylor v. Attorney General & Ors

This was the second case brought by Taylor, a prisoner, against smoking bans in prisons in New Zealand (see also: Taylor v Dept. of Corrections of New Zealand [20 December 2012]). Following the first case, the New Zealand Parliament enacted the Corrections Amendment Regulations, which declared tobacco and smoking equipment to be unauthorized items forbidden to inmates. The Parliament also amended other Regulations which were found to be inconsistent with the smoking ban in the first case. However, the Parliament did not amend the section of the Smoke-free Environments Act which required prison managers to have written policies regulating smoking in cells, which the judge in the first case found implied that smoking must be permissible (otherwise there would be no need to regulate it). Again, the Court found that although the Smoke-free Environments Act did not confer a right to smoke, it recognized that there was such a right. Further, the ban was inconsistent with the provisions of the Corrections Act requiring sentences to be administered humanely, because it would force some prisoners into nicotine withdrawal. The Court therefore declared the legislation effecting the ban to be unlawful, invalid and of no effect. However, when the Parliament passed the new Regulations, it also included ouster provisions purporting to prevent the law from being declared invalid. The Court did not rule on the effect of the ouster provisions because the plaintiff had not claimed any relief.

Taylor v. Attorney General & Ors [2013] NZHC 1659

  • New Zealand
  • Jul 3, 2013
  • High Court of New Zealand, Auckland Registry
Download Document

Parties

Plaintiff Arthur William Taylor

Defendant

  • Attorney-General
  • The Chief Executive of the Department of Corrections
  • The Manager of Auckland Prison

Legislation Cited

Smokefree Environments and Regulated Products Act 1990 (Public Act 1990 No. 108) (as amended)

Corrections Amendment Act 2013

Corrections Amendment Regulations 2012

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"On this point I respectfully agree with Gilbert J. The SEA focuses on reducing harm to those who do not smoke or who do not wish to smoke in prison. It makes it mandatory for prison managers to have a written policy that complies with its principles. The SEA certainly does not confer a right to smoke, but it recognises that there is one. Indeed, it excludes prison cells from the ban on smoking in workplaces. On the second aspect, I also agree with Gilbert J’s view that banning tobacco from prisons is not consistent with the requirements of ss 5(1)(a) and 6(1)(g) of the CA. The former requires sentences to be administered (inter alia) in a humane manner. Forcing prisoners into nicotine withdrawal is not humane. The latter sets out principles to guide the operation of the corrections system which include that sentences must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and prisoners. Depriving prisoners of tobacco, an otherwise lawful substance, is too restrictive."