A judge has ruled a prison smoking ban is unlawful - a victory for career criminal Arthur Taylor who challenged it in court.
But Corrections said inmates would still not be allowed to smoke and the Government said it would change the law if it had to.
Taylor, who is in Auckland Prison, took his case to the High Court at Auckland saying the prison manager had no power under the Corrections Act to impose a total smoking ban, and, even if he did have the authority, had not used his discretion and implemented the smoke-free ban under direction from the chief executive.
Late last week, Justice Murray Gilbert ruled the ban, which has been in place for 17 months, was ''unlawful, invalid and of no effect''.
Corrections has yet to decide if it will appeal the decision, but conceded implementing the policy was a ''serious challenge''.
Despite the ruling, prisoners still cannot smoke because the Government amended Corrections regulations to make tobacco and related products contraband and the court ruling was not about those amended regulations.
Corrections Minister Anne Tolley said the smoking ban in prisons had been a great success and ''there is no way we are backing away from it''.
''Prisons are safer and healthier places for staff and offenders, and if we need to change the law to maintain this then that is what we will do.''
Justice Gilbert said a blanket smoking ban did not serve the purpose of ensuring custodial sentences were safe, secure, humane and effective, and was not ''reasonably necessary'' to maintain the safety of prison staff and inmates.
''In my view, the ban falls outside the scope of the rule making power under section 33 of the Corrections Act.''
He added it was inconsistent with other laws.
Corrections Services general manager Dr Brendan Anstiss said smoking had been very common in prisons before the ban, and had contributed to poor health for staff and prisoners, whether smokers or not. He added that prisoners had been spending more money on phone cards and increasing contact with family and friends since the July 2011 ban.
- Andrew Koubaridis