Attorney-General v Chisnall - [2025] NZSC 126

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 26/2022
[2025] NZSC 126

BETWEEN	ATTORNEY-GENERAL First Appellant CHIEF EXECUTIVE OF ARA POUTAMA AOTEAROA \| DEPARTMENT OF CORRECTIONS Second Appellant
AND	MARK DAVID CHISNALL Respondent

Hearings:	17–18 October 2022 3–4 April 2023
Court:	Winkelmann CJ, Glazebrook, O’Regan, Williams and Kós JJ
Counsel:	U R Jagose KC, D J Perkins and M J McKillop for Appellants and Cross Respondents A J Ellis, B J R Keith and G K Edgeler for Respondent and Cross Appellant
Judgment:	30 September 2025

JUDGMENT OF THE COURT

AWe make the declarations of inconsistency set out at [18].
BThe appellants must pay the respondent one set of costs of $70,000 plus usual disbursements. We allow for second counsel.

____________________________________________________________________

REASONS

Para No
Winkelmann CJ, O’Regan, Williams and Kós JJ Glazebrook J	[1] [20]

WINKELMANN CJ, O’REGAN, WILLIAMS AND KÓS JJ

(Given by Winkelmann CJ)

In an earlier judgment in this proceeding the Court made findings that the Public Safety (Public Protection Orders) Act 2014, and the detention-authorising aspects of the extended supervision order (ESO) regime within the Parole Act 2002, were inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990.[1] We ‍determined that declarations of inconsistency should be issued but gave the parties the opportunity to make submissions on the form of the declarations.[2] In this judgment we address issues as to the form of the declarations and make formal declarations. We also address outstanding issues as to costs.

Form of declarations

[1]Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 (Winkelmann CJ, Glazebrook, O’Regan, Williams and Kós JJ).

[2]At [266] per Winkelmann CJ, O’Regan, Williams and Kós JJ.

From the submissions received it is apparent there is a good deal of agreement between the parties as to the form the declarations should take. We address points of difference below.
Counsel for Mr Chisnall suggest more detail should be included in the declaration. It is argued that part of the purpose of the declaration is to vindicate the rights of those whose rights have been unjustifiably limited. There are also access to justice implications (in the sense of access to information about the content of the law). Both Mr Chisnall and the public should be able to understand the basic outcome from the declarations, without having to read through a judgment. As a consequence, it is suggested that detail should be included sufficient to ensure that someone reading the declarations, and nothing else, can understand the issues decided simply by reading the declarations. The ‑General’s suggested approach to the content of the declarations is more minimalist — involving only limited reference to the content of the right in question.
We agree that the approach suggested by counsel for Mr Chisnall is appropriate, given that the formal orders of the Court are the primary remedy that Mr Chisnall receives. Moreover, it is an approach which accords with the requirements of the access to justice aspects…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Chisnall

Details

AGLC: Attorney-General v Chisnall [2025] NZSC 126
Case: [2025] NZSC 126
Decision Date: 30 September 2025

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Attorney-General v Chisnall involved a dispute over the consistency of certain legislative provisions with the New Zealand Bill of Rights Act 1990. The key legal issues the Court had to decide revolved around the form of the declarations of inconsistency to be issued and the appropriate allocation of costs between the parties. The Court was required to determine whether the declarations should include detailed information to ensure public understanding and whether the retrospective application of certain regimes should be explicitly addressed in the declarations. Additionally, the Court needed to decide on the costs to be awarded given the mixed outcomes of the appeal and cross-appeal.

The Court concluded that the declarations should include sufficient detail to ensure public understanding of the issues decided, aligning with the access to justice aspects of the rule of law. The Court also determined that the issue of retrospectivity should be addressed in the declarations to clearly reflect the Court's findings. Regarding the costs, the Court found that while the Attorney-General had some success in narrowing the scope of the inconsistency, Mr Chisnall was overall successful in defending the declarations of inconsistency. Consequently, the Court awarded Mr Chisnall one set of costs of $70,000 plus usual disbursements, adjusted downwards to reflect the partial success of the Attorney-General.

The final orders of the Court included declarations of inconsistency regarding the Public Safety (Public Protection Orders) Act 2014 and the Parole Act 2002. The appellants were required to pay the respondent one set of costs of $70,000 plus usual disbursements, with allowance for second counsel.

Orders