An interesting headline popped up during a recent scan of Twitter feeds from around the world. An Australia prisoner has been given the right to challenge the levy placed on cigarettes in prison, which he has deemed illegal. The prisoner had to first win court permission as he has been declared a vexatious litigant because of the large number of legal actions he has launched. An associate justice felt the prisoner should be allowed to pursue his case, and scheduled it to go before the Australian Supreme court on April 30, 2012.
The levy has been in place since 1993 as part of a smoke-free environment policy for jails. The original levy was 10 percent over the wholesale cost of tobacco. In 2004, the amount was increased to 20 percent which brings the cost of cigarettes in jails up to the normal retail price. Levy money is deposited into a “prisoner’s amenity fund” to pay for nicotine patches and quit campaigns.
The prisoner feels that a public authority may only impose a financial burden if “expressly and unambiguously empowered” to do so by the legislature. The Department of Justice (DOJ) argued that the levy brought the cost of cigarettes in jail up to what the public paid, that it was not a tax, and the decision of prisoners to purchase cigarettes was entirely voluntary. Since the prisoner has been serving a life sentence since 1987, and the levy has been imposed since 1993, the DOJ feels there had been an undue delay in challenging its validity. The prisoner, who spends $80-$90 a week on cigarettes, wants the levy money refunded.
The associate justice felt that there might be an argument, that the Secretary to the Department of Justice and the prison governors are acting beyond their lawful authority in imposing and collecting the levy.
The general public has to pay a tax on cigarettes. This prisoner was able to purchase cigarettes for approximately 11 years at a lower cost, and for the last seven years bought cigarettes at a price comparable to general retail prices. Perhaps smoking laws that pertain to enclosed spaces should also be applied to prisons.
The real question should not be on the validity of the levy, but rather how does a prisoner who is serving a life sentence since 1987 afford $90 a week on cigarettes?
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