Smoking bans

July 14th, 2013 at 10:00 am by David Farrar

A reader e-mails in:

I was wondering if you could ask your legally qualified readers if they could shed some light on a recent series of bizarre decisions by the High Court. That court twice ruled that bans for criminals in prison were illegal. The judge in the latest case (5 days ago) also said that the ban prisoners was “inhumane”.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10894606

Meanwhile in a decision released yesterday the High Court ruled that a smoking ban for mental patients in hospital is legal.

http://www.newstalkzb.co.nz/auckland/news/nbhea/422965313-waitemata-dhb-wins-smoking-battle

Ok, so the High Court is saying that if you commit a crime and are sent to prison then it is inhumane to stop you smoking. But if you suffer a mental illness through no fault of your own and are hospitalized then it is perfectly legal for the hospital to stop you smoking.

Can somebody please explain to me how these decisions are even remotely consistent, let alone fair?

A fair point!

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18 Responses to “Smoking bans”

  1. burt (8,269 comments) says:

    They don’t need to be consistent – they are based on PC fashion and we just need to pretty much accept that Nanny has the last say. Shut up all of you – stop smoking and let Nanny have her way – she really knows what is best – OK.

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  2. Graeme Edgeler (3,289 comments) says:

    I won’t get into the inhumanity of either, but the reason for the different results overall is pretty clear.

    When Parliament passed the Smoke-free Environments Act 1990 and amendments to it, they included sections which deal with prisons and hospitals.

    Section 6 allows hospitals, care facilities etc, to set up dedicated smoking rooms. It is clear this isn’t a requirement, but it is permitted.

    Section 6A deals with prison cells, and is written in a way that pretty clearly showed Parliament intended that prisoners would be able to smoke in their cells, but requiring prisons to have systems to manage the risk this imposed on others.

    It is section 6A which has gotten in the way of attempts by the Head of Corrections and the Minister to impose a smoking ban using general powers. Judges have been saying: yes you have a general power to impose rules for safety and discipline in prison, but Parliament clearly intends to allow prisoners to smoke in cells, and you can’t just ignore a Statute passed by Parliament.

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  3. wat dabney (3,756 comments) says:

    So, not what burt said then.

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  4. Redbaiter (8,800 comments) says:

    The emailer/ questioner needs to clear his her own head on this issue. First they declare that only legally qualified readers of Kiwiblog should comment on this post, and then they end by asking for “somebody to explain to me how these decisions are even remotely consistent, let alone fair?”

    This questions presumes that laws are always consistent and fair. This is a major mistake.

    As Mr. Edgeler’s response shows above, they are frequently inconsistent and unfair.

    In this case, and frequently in other cases, the problem rests not with judges and courts but with poorly framed legislation drafted by vote seeking politicians and tidied up by eager to please legal lackies in their depts. And voted on by incompetents swapping yes or no votes on the basis of inter-party backroom deals.

    I don’t know how section 6A (see Mr. Edgeler’s comment above) came into being, but I’d guess its a deal between National (or maybe Labour if it was in power at the time) and the Maori party.

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  5. willtruth (243 comments) says:

    Graeme, you are quite correct in your description of what the court had to say about the Smoke Free Environments Act. It did consider that a smoking ban was contrary to that Act.

    Leaving aside the merits of the High Court’s interpretation that an Act called the SMOKE FREE Environments Act conveys a right to smoke, the major problem with the decisions are that they ruled that the ban would have been illegal even without the Smoke Free Environments Act. They said that the smoking ban was INHUMANE and hence contrary to the provisions in the Corrections Act which say that you can’t treat prisoners in an inhumane manner.

    So the Court seems to be saying that the legislation governing mental hospitals allows INHUMANE treatment of mental patients. That is the only conclusion we can reach here, and that is a bizarre finding.

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  6. bc (1,367 comments) says:

    That’s quite some rant, burt. Helpful? Um, no!

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  7. backster (2,171 comments) says:

    And I seem to recall huge damages being paid out to prisoners who were treated inhumanely. In my view the Superintendent in charge of a prison should be just that. What he says goes and the expensive legal lackies butt out.

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  8. kowtow (8,434 comments) says:

    Smoking bans are just more government interference into people’s once private lives.

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  9. Ross Miller (1,704 comments) says:

    Prisoners supposedly have many ‘rights’ taken away from them when they experience Her Majesty’s hospitality … the right to drink alcohol, the right to come and go at will, the right to free association etc etc etc This is just another ‘right’ that they forfeit and no bad thing too.

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  10. bc (1,367 comments) says:

    Ross Miller- agree 100%

    kowtow – we are talking prisoners here.

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  11. EmmaChisit (18 comments) says:

    But they get the right to pray and eat food that is within their religious beliefs.
    Always have to smile at the rants of the anti smoking brigade who charge out with the crusades of Righteousness.

    Goebels would have been proud of the zealot antismokers propoganda.

    PS. I am not a smoker, just a believer in freedom of choice.

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  12. Rajiv (30 comments) says:

    This is bizarre unless this reader is having us on.

    If this ruling is true, pro-smoking folks in New Zealand can rejoice. All they have to do is go insane or commit crime and their smoking rights will be restored.

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  13. willtruth (243 comments) says:

    Rajiv. Just a small point of clarification. “Going insane” is not the thing you want to do if you want to smoke, because the Hospital has banned smoking for patients and the High Court said this was legal. The bizarre thing is that the same High Court said that a smoking ban for prisoners was illegal because it was inconsistent with provisions in the Corrections Act which say that you can’t treat prisoners in an inhumane manner.

    The question is, if banning smoking is inhumane then surely the legislation governing hospitals would prevent it being done to mental patients. But the High Court has ruled that there is no legal obstacle to a smoking ban for mental patients.

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  14. Ross Miller (1,704 comments) says:

    EmmaChisit 11.50 …. your “freedom of choice” is what prisoners forgo when they end up inside. It goes with the territory.

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  15. willtruth (243 comments) says:

    I would really like to hear from Graeme on this as his analysis earlier was insightful but didn’t take into account that the court said it would have made the same ruling even without the smoke free environments act. The court seems to be saying that the legislation governing hospitals allows for conditions that are outlawed in the prison legislation as “inhumane”. Surely if something was inhumane it would be outlawed by the legislation governing hospitals?

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  16. Colville (2,268 comments) says:

    2 reasons to push for a ban on smoking for prisoners (other than just wanting to punish) and the State as a chance to
    firstly you take away any reason for them to have matches/lighters so hopefully less fires in cells which is obviously a saftey issue but secondly any prisoner that gives up has to at least think about maybe just maybe staying off the smokes when they come out and that cant be a bad thing. Part of the rehabilitation process?

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  17. kowtow (8,434 comments) says:

    bc

    Don’t care who we’re talking about. The anti smoking wowsers started with pubs,then govt buildings then all buildings,then they want to stop you smoking in your car,now they want smoke free, parks, cities, streets etc

    There is a Smoke Free whole fucken country goal by 2025 for goodness sake!

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  18. WineOh (630 comments) says:

    Clearly the next step is to remove the ban for alcohol in prisons too. I will have to start up a satellite business at Rimutaka and Paremoremo with pints of vodka!

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