Smoking Now Banned in NSW Prisons

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Prisoner smoking

When Victoria rolled out its ban on smoking in prisons last month, riots broke out in the Metropolitan Remand Centre.

The riots lasted for hours and a lockdown of all prisons in Victoria followed.

Up to 300 inmates were allegedly involved in what has since been described as one of the worst prison riots in Victoria’s history.

Riots also followed a ban in Queensland last year – and a ban in Tasmania led to inmates smashing kitchen appliances and damaging accommodation in protest.

On 10th August 2015, a ban on smoking in prisons took effect in NSW, making it the fourth Australian state to prohibit smoking in correctional centres.

Despite the rioting in all three of the other states, NSW prison officials are confident that there will be no riots in NSW.

Even so, the NSW riot squad and prison staff are on standby, and inmates have been given a range of distractions including competitions, sports equipment and playing cards.

The Minister for Corrective Services, David Elliot, says that treatment for coping with addiction will be readily available, including nicotine replacement therapy and access to telephone support services such as Quitline.

What does the law say?

Clause 322 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) states that a person must not, when in a correctional centre or residential facility:

  1. Smoke; or
  2. Use tobacco in any form; or
  3. Use an e-cigarette.

The penalty for doing this is a fine of $110, and inmates found to be in possession of tobacco will be subject to a $550 fine.

What about prison staff?

Unlike inmates, prison staff will be exempted from the ban.

Prison staff who live on prison compounds are allowed to smoke while off-duty provided that they are not in sight of inmates.

This was the result of a quiet amendment to legislation made last month by the Corrective Services Minister, which now provides for staff who live in the 84 residential premises in prison centres.

There is already resentment amongst inmates who are aware that prison officers can still smoke while they can’t.

The amendment has been labelled as hypocritical, because one of the driving factors behind the blanket ban was to protect prison officers from the harmful effects of secondary or passive smoking.

Why are these laws in place?

For many years, the notion of banning smoking within prisons gained currency in developed countries, first within North America and eventually spreading through to Australia and New Zealand.

The Cancer Council stands behind the move, believing that smoke-free prisons are better for the health of inmates and non-smokers who inhale second-hand smoke.

But there are many who disagree; the ban has been criticised by prisoner rights groups and academics who believe it will be ineffective and even counter-productive.

One such academic is Alex Wodak, the President of the Australian Drug Law Reform Foundation, who believes that forcing people to quit while they are behind bars is no guarantee that they will continue abstaining after they leave.

And even this proposition assumes that the ban will be effective – indeed, banning cigarettes is no guarantee that they will disappear from prisons. Overseas experience has demonstrated that this will likely create a black market for tobacco, with all of the negative consequences this brings with it.

For many inmates, smoking is one of the few pleasures still available to them. Taking this away is likely to be highly distressing, and act an added tension in already over-crowded prisons.

Inmates in NSW prisons are locked in their cells for the longest amount of time out of all Australian states. The shortage of prison staff means that inmates normally spend 16 hours a day in their cells, often housing three people, although they were designed for just one or two.

In some cases, staff shortages have led to ‘general’ inmates being kept in their cells for up to 23 hours a day; which is the amount of time normally reserved only for certain inmates in protection.

As early as last October, the success of the non-smoking laws were called into question by the Queensland Law Society, who pointed out that the number of attacks on prison guards had doubled since the ban took force.

Despite its many critics, the NSW government is intent on keeping the ban in place, with Corrective Services Minister David Elliott stating:

“This is the modern world – this is just one of many, many policies which prisoners may find unpalatable, but the fact of the matter is if you want freedom of choice, don’t go to jail.”

The message is, whether you like it or not, those behind bars will now be subjected to yet another deprivation.

The effects of the ban are yet to be seen.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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