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Judgment: High Court On Corrections Smoking Regulations

[Full judgment: Taylor_v_AttorneyGeneral__Ors.pdf]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY
CIV-2013-404-35

[2013] NZHC 1659

BETWEEN ARTHUR WILLIAM TAYLOR

Applicant
AND THE ATTORNEY-GENERAL

First Respondent

THE MANAGER OF AUCKLAND PRISON

Second Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Third Respondent

Hearing: 7 and 8 March 2013
Counsel Applicant in person

AM Powell and MJ Cameron for Respondents

GM Coumbe, counsel assisting the Court
Judgment: 3 July 2013


JUDGMENT OF BREWER J

This judgment was delivered by me on 3 July 2013 at 10:00 am

pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar


Introduction

[1] The applicant is a sentenced prisoner. He brings this case in protest at prohibitions on prison inmates possessing or smoking tobacco. These prohibitions, he submits, were, for a relevant period, unlawful. He seeks declarations to that effect.


Background

The 2012 case

[2] This is the second case brought by the applicant on this topic. On 20 December 2012, he obtained a declaration that a rule made by the manager of Auckland Prison, which came into force on 1 July 2011, banning smoking in all areas of Auckland Prison was unlawful, invalid and of no effect.

[…]

The Government’s response

[7] Unfortunately for those in prison who wanted access to tobacco, the Government was determined to keep prisons smoke-free. It took two steps which are at the centre of the issues I have to decide.

[8] The first step occurred during the period in which Gilbert J was reaching his decision in the 2012 case. On 2 November 2012, the Corrections Amendment Regulations 2012 came into force. A new reg 32A declared tobacco and any equipment used for smoking it to be unauthorised items (and hence forbidden to inmates). Regulation 158(1)(h) was amended by deleting the word “tobacco” (and thus it no longer conflicted with the rule which was the subject of the 2012 proceeding).


[9] The applicant saw this step as being unlawful. He filed this proceeding on 7 January 2013 challenging the new anti-smoking regulations. He also sought to compel the second respondent to comply with s 6A of the SEA by putting in place a written policy on smoking in the prison’s cells.

[10] The second step occurred after the applicant filed this proceeding. On 26 February 2013, Parliament passed the Corrections Amendment Act 2013, the relevant sections of which came into force on 5 March 2013. The Amendment Act included a number of anti-smoking measures which were introduced to the House by the Minister of Corrections on 12 February 2013 via a Supplementary Order Paper.

[…]

Is there now anything to be determined?

[12] There is an old aphorism: “vox populi vox Dei” (“the voice of the people is the voice of God”). In New Zealand, that voice is made law by Parliament. The law now is that prisoners are banned from possessing tobacco and it is a disciplinary offence for them to smoke it. Mr Powell for the respondents submits that there is no point in me giving judgment on the issues pleaded by the applicant. Nothing that I can order could have any utility.

[13] I have decided that I should give judgment on the substantive issues raised by this case. The applicant’s principal pleading is that the anti-smoking regulations were unlawful. He argues that they were not authorised by the statute under which they were made and they contradict other statutes. 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. Equally, there is a public-interest utility in a decision that this did not happen.

[14] I think there might be a practical utility also. The anti-smoking regulations were in force from 2 November 2012 until 5 March 2013. The Amendment Act retrospectively validated them from 12 February 2013. If the anti-smoking regulations are declared invalid, prisoners who had disciplinary action taken against them could apply for relief. The relief could include correction of their disciplinary record (an adverse record can affect consideration of parole) and compensation.

[…]

Decision

[33] I find that nothing in ss 3, 200 or 201 of the Corrections Act 2004 authorised the making of reg 32A by the Corrections Amendment Regulations 2012. It is accordingly ultra vires.

[34] The amendment to reg 158(1)(h) by deleting “tobacco” is also ultra vires the Corrections Act 2004 because of its purpose. That purpose was to remove an inconsistency with the reg 32A ban.

[35] I make a Declaration that reg 4 (which created reg 32A) and reg 6 (which amended reg 158(1)(h)) of the Corrections Amendment Regulations 2012 were unlawful, invalid and of no effect.

[36] The effect, or utility, of this Declaration is subject to the Corrections Amendment Act 2013. 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. There is no actual claim for relief before me and I do not think it useful to hypothesise.


[37] The applicant seeks declarations also that the anti-smoking regulations:10

“constitute unlawful and prohibited discrimination against smokers of tobacco and breach section 19 of [New Zealand Bill of Rights Act 1990] and section 21(1)(h)(iii) of the [Human Rights Act 1993]”; and

“undermine respect for the inherent dignity of the person and are thereby an unjustified infringement of section 23(5) of [New Zealand Bill of Rights Act 1990]”.

[38] In view of my finding that the Corrections Act 2004 did not authorise the making of the anti-smoking regulations, it is not necessary for me to rule on whether they breached the rights legislation as pleaded. I decline to do so.

[39] The applicant is entitled to costs. As a self-represented litigant these would be restricted to out-of-pocket expenses. If costs are to be claimed, the applicant must file a memorandum setting them out within three weeks of the date of delivery of this judgment. In such event, the respondents may have two weeks in which to reply.

[Full judgment: Taylor_v_AttorneyGeneral__Ors.pdf]

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