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, M J McKillop and T Li for Appellants and Cross‑Respondents A J Ellis, B J R Keith, G K Edgeler and A C Singleton for Respondent and Cross‑Appellant A S Butler KC, R A Kirkness, M D N Harris and D T Haradasa for Te Kāhui Tika Tangata | Human Rights Commission as Intervener
Judgment:
19 December 2024
JUDGMENT OF THE COURT
A The appeal is allowed in part.
BThe cross-appeal is dismissed.
CWe seek submissions from counsel on the form of the declarations of inconsistency, as set out at [269].
The nature of the risk presented by Mr Chisnall and the orders made to address it
[67]
The administration, operation and effect of the ESO and PPO regimes
[73]
The Bill of Rights framework
[79]
Declarations of inconsistency
[83]
Second section: Declarations of inconsistency where the legislation provides a discretion Discussion
[89] [94]
Third section: Do the ESO and PPO regimes limit any or all of the affirmed rights as contended by Mr Chisnall?
[106]
Decisions of lower Courts
[108]
High Court
[108]
Court of Appeal
[111]
How Mr Chisnall frames his claim
[114]
Rights affected: Second penalty (s 26(2))
[122]
What is a penalty?
[125]
What are the principles to be applied?
[130]
Do the ESO and PPO regimes entail the imposition of penalties? Can limitations on the s 26(2) right be justified?
[133] [139]
Rights affected: Retroactive criminalisation of conduct (s 26(1))
[149]
Rights affected: Minimum standards of criminal procedure (s 25)
[157]
Rights affected: Arbitrary detention (s 22)
[159]
Rights affected: Cruel or disproportionately severe punishment (s 9)
[165]
Rights affected: Imprisonment contrary to human dignity and humanity (s 23(5))
[168]
Conclusion: Has Mr Chisnall established there is a limitation of rights?
[169]
Fourth section: The s 5 inquiry — are these reasonable limits that are justified in a free and democratic society?
[170]
Decisions of lower Courts
[172]
High Court
[172]
Court of Appeal
[178]
How is the justificatory burden discharged?
[181]
Do the regimes impose reasonable limits as can be demonstrably justified in a free and democratic society?
[190]
Submissions in this Court
[190]
The Hansen model
[195]
(a) Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
[198]
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.
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AGLC
Attorney General v Chisnall [2024] NZSC 178
Case
[2024] NZSC 178
Decision Date
CaseChat Overview and Summary
In Attorney General v Chisnall, the Supreme Court of New Zealand addressed whether the extended supervision order (ESO) and public protection order (PPO) regimes were consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights). These regimes apply to individuals assessed as posing a high, or very high, risk of further serious sexual or violent offending. The court found that the ESO and PPO regimes imposed a second penalty, a limitation upon the s 26(2) right, and one that was not justified for the purposes of s 5. The Court issued declarations in respect of the ESO regime as it applied to offending committed after the creation of the regime (ie non-retrospectively), and also in respect of the PPO regime. The Court did not address the inconsistency arguments in respect of other rights. The court allowed the appeal in part and dismissed the cross-appeal, finding inconsistency with the right affirmed in s 26(2) in connection with the application of the entire PPO regime, but parts only of the ESO regime. The declarations of inconsistency were of narrower focus than those issued by the Court of Appeal. The court rejected the Attorney-General's argument that there is no room either for the application of the full s 5 analysis set out in R v Hansen or for the declaration of inconsistency jurisdiction to operate in this case (or other cases under these regimes). The court found that the regimes are not properly characterised as discretionary but rather as evaluative, such that, if the relevant level of risk is met, the judge would be required to make orders under the relevant regime to manage that risk. The court also rejected the Attorney-General's argument that the Court of Appeal erred in taking a regime-based analysis rather than confining itself to the facts of Mr Chisnall's case. The court concluded that the question for this Court is whether the application of statutory provisions is sufficiently predictable or clear-cut to enable consideration of rights consistency reaching beyond the facts of an individual case, encompassing the more general operation of the legislation. For the most part, the operation of the ESO and PPO regimes is standard in effect, enabling the consideration of the entire regimes' rights consistency, not limited to Mr Chisnall's case. The court found that the retrospective application of the detention-authorising parts of the ESO and PPO regimes was not capable of justification for the purposes of s 5. The application of regimes in this context is therefore inconsistent with the right affirmed in s 26(2) in this regard. The court also found that the prospective application of the PPO regime and the detention-authorising parts of the ESO regime imposed an unjustified limitation on s 26(2). The court concluded that the court has a duty under the Bill of Rights to assess whether limitations on rights are justified, as they are required to be by s 5 of that Act. The court cannot shirk that responsibility.