Clendon David: Corrections Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Clendon David: Corrections Amendment Bill — In Committee 
[Sitting date: 13 February 2013. Volume:687;Page:7852. Text is incorporated into the Bound Volume.] 
DAVID CLENDON (Green) 
: 
 Kia ora. I also want to make some remarks about Supplementary Order Paper 171 to the Corrections Amendment Bill which seeks to retrospectively put right an error that was made by the Government about 18 months ago. This of course has emerged from a High Court ruling which was quite unequivocal. Justice Murray Gilbert made it quite clear. He referred to the smoking ban that had been put in place as being “unlawful invalid and of no effect.” That is a fairly robust statement from a judge. There is no room for equivocation in that. He went on to say that he believed that “it was well established in common law that prisoners retained all their civil rights unless removed by law so the … starting point was that they had the same rights as other citizens to smoke in their own home.” For all intents and purposes a cell is a prisoner’s home. That was I guess the key finding of the judge in this case. 
The issue of smoking in prisons was not overlooked at the time the Smoke-free Environments Act came into force. Section 6A deals with that very thing. It says that the superintendent of a prison must have a written policy that is posted and that “must be based on the principles that as far as is reasonably practicable an employee or inmate who does not smoke or does not wish to smoke in the prison must be protected from smoke arising from smoking in the prison’s cells:”. It also requires where it is reasonably practicable to do so that an inmate must not be forced to share a cell with an inmate who does smoke. So clearly the issue was not overlooked in the original legislation. 
We support the intent to reduce the level of smoking in prisons. Smoking is an addiction. Nicotine dependency and addiction are very powerful. Speaking as a reformed smoker I know this and I dare say there are others of us in that same situation. But the fact is that people do wish to smoke and choose to smoke although we might seek to discourage them. 
It is clear that this ban was illegal. The element of retrospectivity in this Supplementary Order Paper is what is particularly concerning. We will not always oppose amendments that seek to make retrospective change. I recall an example from a year or perhaps 2 years ago where due to a drafting error in legislation the validity of the rights of recently sworn police officers to exercise the duties and powers of a constable was brought into question. We very happily supported the amendment. It was an unfortunate lapse in drafting—a rare one—and we supported that amendment for very good and obvious reasons. 
This Supplementary Order Paper however is clearly designed to protect the Government from the consequences of any claims that might now be made against it on the basis of people who have clearly been denied their absolute legal right to smoke. We have heard a little bit about Mr Arthur Taylor the inmate who successfully brought this case to the High Court. That same person—gentleman if we may be so bold—put out a press release today: “The Government’s hypocrisy is mind-blowing. It imprisons about 9000 people for lawbreaking yet it demonstrates an abject disregard for the rule of law itself—a case of ‘Do as I say not as I do.’ Such hypocrisy can only undermine Miss Tolley’s own Corrections Department’s rehabilitative efforts with many prisoners.” 
We routinely hear from the Government benches the language of consequences. When we seek to protect the rights of prisoners we are told that prisoners are in there because that is the consequence of their action. This Government knows that it is vulnerable to claims from people who have been imprisoned and denied the right to smoke and therefore it is seeking to avoid the consequences of its action. Is that not interesting? I look forward to hearing from some of the more shall I say volatile spokespeople from the Government on these issues of prisoners’ rights— 
Hon Clayton Cosgrove 
: Nick Smith. 
DAVID CLENDON 
: —I will not name them just now—to explain to me why the Government should be protected from the consequences of its action when some of its members would have us insist that prison inmates must suffer the consequences of theirs. It is unacceptable that this Supplementary Order Paper would put that retrospective correction in place. 
It is a matter of debate just how we seek to reduce the level of smoking in prisons which we acknowledge has been very high historically and is not good for anyone’s health. This is not the right mechanism. This is not the solution. We cannot support this Supplementary Order Paper. Thank you.