In June 2011 the manager of the Auckland Prison implemented a Rule proposed by the Chief Executive of the New Zealand Department of Corrections that banned smoking of tobacco or any other substance anywhere on prison grounds. A prisoner challenged the Rule, claiming that the manager did not have the power pursuant to the Corrections Act to impose a total ban on smoking; and, even if he did, he did not properly exercise his discretion. The Court agreed with the prisoner that the Rule was inconsistent with other legislation, particularly the Smoke-free Environments Act which required prison managers to have a written policy relating to smoking in cells. The Court found that it was Parliament’s intention to have smoking in prisons regulated by the Smoke-free Environments Act, not the Corrections Act. The Court therefore declared the Rule to be unlawful, invalid and of no effect. The New Zealand Parliament subsequently passed new and amending Regulations seeking to circumvent this decision. The High Court again ruled that those laws were invalid (see: Taylor v Attorney General & Ors [3 July 2013]).
Taylor v Manager of Auckland Prison [2012] NZHC 3591 (20 December 2012)
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"A rule imposing a blanket ban on smoking by prisoners in all areas of the prison does not serve the purpose of ensuring that custodial sentences are administered in a safe, secure, humane and effective manner. Nor is the ban reasonably necessary to ensure the maintenance of the law or the safety of the public, corrections staff and other prisoners. In my view, the ban falls outside the scope of the rule-making power under s 33 of the CA. It is inconsistent with s 6A of the SEA and, at the time the rule was made, it was also inconsistent with reg 158(1)(h) of the Corrections Regulations 2005."
"Does the SEA authorise a policy banning smoking in all areas of prisons including prison cells and open areas?
It is clear from s 6A that Parliament intended that prisoners would retain the right to smoke in their cells. Parliament would not have enacted s 6A requiring all prison managers to ensure that there is a written policy dealing with the effects of smoke from prisoners smoking in their cells if they did not anticipate that this would occur. Further, Parliament would not have excluded prison cells from the definition of "workplace", where smoking is banned, if they had intended to remove prisoners' rights to smoke in their cells. There is nothing in the SEA to suggest that Parliament intended to remove prisoners' rights to smoke in their cells or in open areas such as prison yards; quite the contrary."
"It is well-established at common law that prisoners retain all civil rights and freedoms of ordinary citizens unless these are removed by law expressly or by necessary implication. The presumptive starting point is therefore that prisoners have the same rights as other citizens to possess tobacco and to smoke in their own home, if they wish. The prison cell is the institutional equivalent of a prisoner's home. Historically, smoking has been an integral part of prison life and deeply embedded in prison culture. Prisoners could purchase tobacco and smoking related items, including matches and lighters, through a prison order system. Tobacco was also commonly used by prisoners as a form of currency."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In June 2011 the manager of the Auckland Prison implemented a Rule proposed by the Chief Executive of the New Zealand Department of Corrections that banned smoking of tobacco or any other substance anywhere on prison grounds. A prisoner challenged the Rule, claiming that the manager did not have the power pursuant to the Corrections Act to impose a total ban on smoking; and, even if he did, he did not properly exercise his discretion. The Court agreed with the prisoner that the Rule was inconsistent with other legislation, particularly the Smoke-free Environments Act which required prison managers to have a written policy relating to smoking in cells. The Court found that it was Parliament’s intention to have smoking in prisons regulated by the Smoke-free Environments Act, not the Corrections Act. The Court therefore declared the Rule to be unlawful, invalid and of no effect. The New Zealand Parliament subsequently passed new and amending Regulations seeking to circumvent this decision. The High Court again ruled that those laws were invalid (see: Taylor v Attorney General & Ors [3 July 2013]).