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09 July 2013
The introduction of a smoking ban in prisons has resulted in the airing of some interesting legal and constitutional issues. The lawfulness of the manner in which the ban was introduced was successfully challenged by a prisoner and the government's legislative response to the High Court's decision has since provoked both a further successful legal challenge and criticism from a constitutional perspective.
In June 2010 the Department of Corrections announced a policy to make New Zealand prisons smoke-free from July 1 2011, with the aim of discouraging prisoners and corrections staff from smoking. Such policies can be controversial; a 2004 proposal for a similar policy in England (which ultimately did not proceed) was described by Theodore Dalrymple, writer and retired prison doctor, as "the arbitrary bullying of a defenceless population in a fit of Pecksniffian moral enthusiasm".(1)
On June 1 2011 the chief executive of the department directed prison managers to introduce a rule prohibiting smoking in all areas of all prisons. The rule was to be made under Section 33 of the Corrections Act 2004, which empowers the chief executive to authorise a prison manager to make rules that the manager considers appropriate for the management of the prison and the conduct and safe custody of prisoners.
The manager of Auckland Prison immediately made a rule forbidding any prisoner at Auckland Prison from smoking or possessing any tobacco or tobacco-related item. Prisoners were also forbidden from smoking while on temporary removal from Auckland Prison. Similar rules were made by all other prison managers, thus effecting a blanket ban on smoking by prisoners, whether convicted or on remand, at all times and in all areas of prisons throughout New Zealand. Smoking is lawful elsewhere, subject only to the restrictions in the Smoke-free Environments Act 1990.
Arthur Taylor, a non-smoker, was a prisoner at Auckland Prison. Taylor – described in the media as a "career criminal" with a history of "vexatious" challenges to prison management – brought a proceeding challenging, by way of judicial review, the validity of the rule on the following grounds:
The challenge was heard by the High Court at Auckland in June 2012 and a decision upholding the challenge was issued in December 2012.(2)
The court noted that, historically, smoking has been an integral part of prison life and deeply embedded in prison culture. It is well established in New Zealand under common law that prisoners retain all the civil rights and freedoms of ordinary citizens, unless these are removed by statute expressly or by necessary implication,(3) and that the prison cell is the institutional equivalent of a prisoner's home. 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.
On the first question, the judge considered that, under the rule-making provision, Parliament is presumed not to have authorised the making of rules that are repugnant to the laws of New Zealand, and that the scope of the prison manager's power to make rules should be considered in the context of any other relevant legislation. He made the following observations:
The court considered that:
Although he acknowledged that it was unnecessary to do so in view of his decision on the first issue, the judge also held that the manager had wrongly acted under the direction of the chief executive of the department, and had acted unreasonably in making the rule. The High Court made an order declaring the rule unlawful, invalid and of no effect.
Before the delivery of the High Court's judgment, the government had already moved to amend the regulations, introducing an amendment in October 2012 that classified tobacco and equipment used for smoking tobacco as unauthorised items and removed tobacco from the list of protected privileges that may not be revoked as punishment of a prisoner.
Following release of the judgment, the government kept the smoking ban in place, appealed the High Court decision and introduced amendments to the Corrections Act and the Smoke-free Environments Act by Supplementary Order Paper (SOP) 171.
SOP 171 was tabled on February 12 2013 by the corrections minister. It proposed amendments to the Corrections Amendment Bill, which was already in the later stages of its enactment process at the time of the decision in Taylor. The bill had not, until then, addressed smoking in prisons. SOP 171 sought to encapsulate the smoking ban in primary – rather than secondary – legislation, and to make it express that tobacco and smoking in prisons is banned. SOP 171 proposed to:
The supplementary order paper was considered by the Committee of the Whole House the day after it was tabled. Following debate, the amendments were narrowly passed and the bill received royal assent on March 4 2013.
The introduction of SOP 171 at such a late stage has since been criticised for bypassing the normal vetting processes.(4) The criticisms of SOP 171 include the following:
Taylor brought a second judicial review application challenging the validity of the October 2012 amendment to the regulations. As the new amending regulations were subsequently validated by Parliament in February 2013 by SOP 171, which came into force on March 5 2013, Taylor argued (now before a different judge) that any enforcement of the ban imposed by the regulations from their introduction in November 2012 until March 2013 was unlawful. Despite the limited period, it could mean that any prisoner who was punished for smoking during that period – and punishment could have significant repercussions, such as on parole decisions – could seek correction of their disciplinary record or compensation.
In the course of the second hearing, the government abandoned the appeal from the first decision.
The court delivered its judgment on July 3 2013.(5) The court made the following conclusions:
The court declared that the October 2012 amendments to the regulations were unlawful, invalid and of no effect.
In making its decision, the court commented that this was an important issue, even if no remedy followed:
"It is part of our democracy that Parliament delegates to the Government the right to make laws by way of regulations. It is important that the Government keeps within the terms of these delegations. It is particularly important where a delegation relates to the use of coercive power. In my view, there is a public interest in the Court addressing allegations that prisoners have been subjected to unlawful regulation, even if the only remedy might be a declaration that this happened."(6)
The constitutional concerns raised regarding SOP 171 are not isolated matters at present. Since the introduction of SOP 171, a number of other significant legislative changes have been introduced by way of supplementary order papers. To restrict the manner in which anti-mining protesters could protest, on April 9 2013 the government introduced a clause (by SOP 205) into the Crown Minerals (Permitting and Crown Land) Bill that established five new offences against the Crown Minerals Act 1991. On May 7 2013 the government introduced extensive and late amendments to the Financial Markets Conduct Bill (by SOP 220). Both supplementary order papers were introduced after the relevant bill was reported back to Parliament by a select committee.
On May 16 2013 the government introduced another controversial ouster clause into existing legislation. Following a successful legal challenge – confirmed on appeal under the Human Rights Act 1993 and the Bill of Rights Act – to earlier government policy by those who care for severely disabled family members, the government made provision for a new policy for such cases. The amendment to the Public Health and Disability Act 2000 prevents access to the courts in respect of any challenge of unlawful discrimination made in respect of that act or a 'family care policy' (as defined in that act). The amendment went through all of the stages of lawmaking in a single day, despite a report by the attorney general that the bill was inconsistent with the Bill of Rights Act and parts of the statement of legal risks, set out in a regulatory impact statement which members of Parliament received, being removed to some extent by redaction.
Both ouster clauses are at odds with the established guidelines of the Legislation Advisory Committee that Parliament should seek to oust the courts' review jurisdiction only in "exceptional" cases, because ouster results in power not being subject to law and therefore legally unlimited.
The most recent legislative action has been the subject of criticism from a constitutional perspective by both a legal academic(7) and the New Zealand Law Society.(8) The criticisms suggest that the government is increasingly failing to respect the longstanding conventions of comity, which are essential to the balance of power under New Zealand's unwritten constitution, by using a Parliamentary majority to oust the role of the courts to declare the meaning and application of law, and to protect individuals from unlawful treatment.
For further information on this topic please contact Chris Browne or Nic Scampion at Wilson Harle by telephone (+64 9 915 5700), fax (+64 9 915 5701) or email (firstname.lastname@example.org or email@example.com).
(1) "Oh, to be in England: It's This Bad", City Journal, Spring 2006.
(7) For the background to this amendment and extensive comment, see "I think National just broke our constitution", by Andrew Geddis, published on Pundit (pundit.co.nz) on May 17 2013.
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