Taylor v Attorney-General - [2013] NZHC 1659

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

SOLICITORS/COUNSEL
Crown Law (Wellington) for Respondents
Gillian Coumbe (Auckland) – counsel assisting the Court
(Copy to Applicant in person)

TAYLOR v THE ATTORNEY-GENERAL & ORS [2013] NZHC 1659 [3 July 2013]

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.1

[3] To understand the issues in this case, it is necessary to understand the 2012 case:2

[1] In June 2010, the Chief Executive of the Department of Corrections announced a policy to make New Zealand prisons smoke-free from 1 July
2011. A 12 month nationwide campaign to prepare for the ban on smoking in prisons commenced. Its aim was to discourage smoking by prisoners and Corrections staff and to prepare them for the ban by providing aids such as
nicotine patches.

[2] On 1 June 2011 the Chief Executive directed prison managers to introduce a rule prohibiting smoking in all areas of all prisons in accordance with a sample rule provided. The stated objective of the rule was “to implement the Department’s policy decision that except for designated smoking areas outside the secure prison perimeter, the prison estate would be smoke-free from 1 July 2011”. The rule was to be made under s 33 of the Corrections Act 2004 (the CA) 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 the prisoners.

[3] The manager of Auckland Prison immediately made a rule for
Auckland Prison, in line with the sample rule provided, as follows:

AUCKLAND PRISON
PRISONER INSTRUCTION - PRISON RULE

1 Taylor v Auckland Prison [2012] NZHC 3591.
2 Ibid.

Date: 01 June 2011

Review Date: N/A

Prisoner Instruction – Auckland Prison Smoking Policy

Pursuant to Section 33 of the Corrections Act 2004, I am instituting a rule that forbids any prisoner smoking tobacco or any other substance, or have in possession any tobacco or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v Attorney-General

Details

AGLC: Taylor v Attorney-General [2013] NZHC 1659
Case: [2013] NZHC 1659
Decision Date: 3 July 2013

CaseChat Overview and Summary

Arthur William Taylor, a sentenced prisoner, brought a case against the Attorney-General, the Manager of Auckland Prison, and the Chief Executive of the Department of Corrections, challenging prohibitions on inmates possessing or smoking tobacco. Taylor argued that these prohibitions were unlawful for a certain period and sought declarations to that effect. The case involved a policy to make New Zealand prisons smoke-free from 1 July 2011, which resulted in a blanket ban on smoking by prisoners at all times and in all areas of prisons throughout New Zealand. The legal issues the court had to decide were whether the anti-smoking regulations were authorized by the statute under which they were made and whether they contradicted other statutes.

The court found that the Corrections Amendment Regulations 2012, which declared tobacco and any equipment used for smoking tobacco as unauthorized items, were made pursuant to sections 3, 200, and 201 of the Corrections Act 2004. However, the court held that these sections did not authorize the making of regulations to ban tobacco from prisons. The court also found that the amendment to regulation 158(1)(h) by deleting "tobacco" was ultra vires the Corrections Act 2004 because of its purpose. The court made a declaration that regulation 4 (which created regulation 32A) and regulation 6 (which amended regulation 158(1)(h)) of the Corrections Amendment Regulations 2012 were unlawful, invalid, and of no effect.

The court declined to rule on whether the anti-smoking regulations breached the rights legislation as pleaded, as it found that the Corrections Act 2004 did not authorize the making of the anti-smoking regulations. The applicant was entitled to costs, which would be restricted to out-of-pocket expenses, as he was a self-represented litigant. If costs were to be claimed, the applicant had to file a memorandum setting them out within three weeks of the date of delivery of the judgment, and the respondents had two weeks in which to reply.

Orders