All smoke and mirrors? The Taylor litigation and issues surrounding the smoking ban in New Zealand prisons

A 2005 prisoner health survey found that almost three quarters of the New Zealand prison population identified as smokers. Tobacco was deeply engrained in prison culture and smoking was viewed as an aid for managing the stress and boredom associated with prison life. The Department of Corrections implemented a policy on 1 July 2011, banning smoking in all areas of all prisons in New Zealand. The policy aimed to improve the long-term health of prisoners, and create a healthier workplace environment. Arthur Taylor, a notorious and litigious criminal, successfully challenged the delegated legislation implementing the policy by way of judicial review. This paper argues that the judicial reasoning was flawed, as it was based on erroneous assumptions without a thorough assessment and interpretation of the legislative history. Despite Taylor’s successful claims, the smoking ban was then incorporated into primary legislation. This paper examines the method of implementation, finding issues with retrospective and privative clauses introduced by a late stage supplementary order paper. Prisoners are a group especially vulnerable to curtailment of rights and freedoms, and this paper concludes that removal of the freedom to smoke in prison cells and outside in prison yards was a step too far.