By Anita Mackay
Australia’s two most populous States have recently implemented smoking bans in prisons (Victoria from 1 July and NSW from 10 August). In doing this they are joining the Northern Territory (where smoking was banned from 1 July 2013), Queensland (from 5 May 2014) and Risdon prison in Tasmania (from 31 January 2015). In my previous post about smoking bans in Australian prisons, I considered some of the objectives of smoking bans, as well as evidence about how effective bans have been at achieving these objectives in countries that have greater experience with banning smoking in prisons.
In light of the fact that Victoria is one of the two Australian jurisdictions that has human rights legislation (the other is the ACT), in this post I will examine the human rights at stake in this context, and some legal decisions from overseas that may shed some light on which particular rights have been successfully relied upon in litigation.
Who are the rights-holders and what are the relevant rights?
As is often the case in human rights-based analyses, there are a range of rights-holders and human rights that need to be considered. Non-smokers, including prison staff, have a right to health and a right to life that may be impacted upon by exposure to second-hand smoke. In other public settings smoking regulation has been introduced to ensure that people can do their jobs without being exposed to the harms caused by second-hand smoke.
On the other hand, smokers for whom prison is ‘home’ – 84% of the prison population – have a right to the protection of their private life. This is a key difference between banning smoking in prisons and other public places. When, for example, smoking was banned in pubs and nightclubs, people were still able to go outside to smoke. Imprisoned smokers do not have this option. Not only can they not leave the prison, but they have no choice over when they can leave their cell. As I discuss below, some smokers have argued before the courts that being forced to quit smoking, particularly with inadequate support, subjects them to cruel, inhuman or degrading treatment.
Human rights are not absolute, and Victorian and ACT legislation provides that rights can be subject to limitations provided they are ‘reasonable’ and ‘demonstrably justified in a free and democratic society’. In this context it may, for example, be argued that restricting smoking to certain areas within the prison is a reasonable limitation on the rights of those who smoke, whereas a total ban is not.
It is clear that the regulation of smoking in prisons involves many rights, and a balance must be achieved between those that conflict. Consequently, it is useful to consider how the courts in countries that have more experience with smoking bans, as well as similar human rights obligations, have decided cases concerning smoking bans in prisons.
First, I will consider cases concerning smokers exposed to second-hand smoke. Then I will consider cases concerning smokers who have argued that their rights are breached by being denied the option to smoke.
Rights of non-smokers exposed to second-hand smoke
The European Court of Human Rights has considered claims brought by non-smokers who have been exposed to high levels of second-hand cigarette smoke. In two Romanian cases, in both of which the applicants had pre-existing medical conditions (hypertension and chronic pulmonary disease), the non-smokers had to share cells with smokers for a period of 9 months. In one case, the applicant was sharing a cell with 110-120 other people, 90% of whom smoked. In both of these cases, the Court held that the applicants had been subjected to ‘torture or to inhuman or degrading treatment or punishment’ in violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In the UK a claim was brought by a non-smoker who was required to share a cell with a smoker for a period of one week. The applicant sought to rely on the rights to privacy and freedom from discrimination protected by Articles 8 and 14 of the European Convention (which are part of UK law due to the Human Rights Act 1998). However, his claim was unsuccessful because the court held that the exposure was not ‘of an intensity, duration and effect’ to amount to a breach of human rights.
These illustrations show that the amount of second-hand smoke a person is exposed to and the duration of exposure, as well as the impact on the particular individual (such as exacerbating a pre-existing medical condition), have been important considerations for overseas courts.
Rights of smokers who wish to challenge the imposition of bans
Courts internationally have considered a range of human rights claims brought by smokers who wish to challenge smoking bans. There have been more cases brought by people held in secure psychiatric hospitals than in prisons, so two of these cases are referred to here.
In Canada, a Mr McNeill challenged a smoking ban in Ontario on the basis that as a smoker, he was subjected to cruel and unusual treatment or punishment under section 12 of the Canadian Charter of Rights and Freedoms, and that either tobacco addiction, or the withdrawal symptoms he was suffering, constituted a ‘physical disability’ within the meaning of section 15 of the Charter. In support of these claims he led evidence that he was suffering ‘irritability, anxiety, depression and panic attacks’. In relation to the first claim, the Ontario Supreme Court noted that smoking withdrawal symptoms were ‘temporary and limited’ and did not necessitate medical intervention. They also considered that the smoking ban was not intended to be ‘punishment’, therefore section 12 of the Charter had not been breached. In relation to the disability claim the Court held that it was inappropriate to compare tobacco addiction or withdrawal symptoms to people with disabilities suffering systemic disadvantage, exclusion and marginalisation from society. Therefore this element of the claim was also unsuccessful.
Two discrimination claims have been brought in the UK on the basis that people in secure psychiatric hospitals were subject to smoking bans, while people in prisons were not. In both cases, the courts held that there are differences in the purposes of the two environments, with hospitals having a therapeutic aim and being staffed by medical professionals so that the health of the patients is a focus in a way that it is not in prisons. Therefore the courts were not willing to compare the two settings for the purposes of a discrimination claim and these claims were unsuccessful.
Finally, in the same two cases, claims based on the protection from arbitrary interference with privacy under Article 8 of the European Convention were made. These were based on the contention that for patients the psychiatric hospital is their home. The courts noted that people in hospitals have more limited privacy than people in private homes in the community, and that this is necessitated by the need to maintain safety and security. Thus this claim was also unsuccessful.
This brief overview of selected cases may lead some to conclude that there is no human rights basis for smokers to challenge smoking bans in prisons, whereas successful claims brought by non-smokers about their exposure to second-hand smoke in prisons provide support for the imposition of bans. This is a risky conclusion, however, because it is based on very few cases, some of which are now quite dated. It is also the case that there are significant differences between prisons and secure psychiatric hospitals.
Smoking bans in prisons raise competing human rights claims that need to be balanced, and it is likely that the courts will continue to be called upon to determine such claims. A human rights perspective is one lens that reveals the complexity of attempts to regulate smoking in prisons, particularly by the implementation of bans. It will be interesting, given that Victoria does have human rights legislation, to see if the issue is raised in Victorian courts in the near future.
Anita Mackay is a research assistant in the Monash Law Faculty and has recently completed her doctoral thesis on the compliance of Australian prisons with international human rights law. This article was originally published on the Regarding Rights Blog. Read the original article.
 Article 12 of the International Covenant on Economic, Social and Cultural Rights.
 Article 6(1) of the International Covenant on Civil and Political Rights (‘ICCPR’); Section 9 of the Human Rights Act 2004 (ACT) (‘HRA’); Section 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’).
 Article 17(1) of the ICCPR; Section 12 of the HRA; Section 13 of the Charter.
 Article 7 of the ICCPR; Section 10 of the HRA; Section 10 of the Charter.
 Section 7(2) of the Charter and s 28 of the HRA.
 Florea v Romania  ECHR 37186/03; Elefteriadis v Romania  ECHR 38427/05.
 The Queen (on the application of Solomon Smith) v Secretary of State for Justice & Ors  EWCA Civ 380, -.
 McNeill v Ontario (Ministry of Solicitor General and Corrective Services) 1998 CanLII 14947, .
 Ibid, .
 Ibid, .
 See McCann v The State Hospitals Board for Scotland  CSIH 71 and R (N) v Secretary of State for Health  EWCA Civ 795.
 For example, the McNeill decision from Ontario is from 1998.