Attorney General v Chisnall
[2024] NZSC 178
•19 December 2024
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 26/2022 [2024] NZSC 178 |
| BETWEEN | ATTORNEY-GENERAL |
| AND | MARK DAVID CHISNALL |
| Hearings: | 17–18 October 2022 |
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 |
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].
DCosts are reserved.
____________________________________________________________________
REASONS
| Para No | |
| Winkelmann CJ, O’Regan, Williams and Kós JJ | [1] |
| Glazebrook J | [271] |
WINKELMANN CJ, O’REGAN, WILLIAMS AND KÓS JJ
(Given by Winkelmann CJ)
Table of Contents
| Para No | |
| Introduction | [1] |
| Issues on appeal | [7] |
| Summary | [14] |
| Roadmap | [31] |
| First section: Setting the scene | [32] |
| Development of the ESO and PPO regimes | [33] |
| The ESO regime | [37] |
| The PPO regime | [52] |
| 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] |
| 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] |
| (b) Is the limiting measure rationally connected with its purpose? | [209] |
| (c) Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose? | [211] |
| (i) Alternative models considered prior to enactment | [215] |
| (ii) Alternative German models | [216] |
| (iii) Alternative models proposed by counsel for Mr Chisnall (iv) Our analysis | [221] [229] |
| (d) Are the limits in due proportion to the importance of the objective? | [245] |
| Fifth section: The exercise of the discretion to issue a declaration | [263] |
| Result | [267] |
Introduction
The respondent (and cross-appellant), Mr Chisnall, has spent much of his adult life in prison or other forms of detention.[1] For some of this time he was serving a sentence of imprisonment, but since his release in 2016 he has been subject to restrictive statutory regimes which can be applied to those who, having committed certain categories of offences in the past, are assessed as posing a high, or very high, risk of further serious sexual or violent offending.
[1]Mr Chisnall was sentenced to a term of imprisonment in 2006 at age 20 and has been subject to various orders ever since his release in 2016. He is now 38.
This appeal, and cross-appeal, address whether those statutory regimes, the extended supervision order (ESO) and public protection order (PPO) regimes, are consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights).[2] Orders under the ESO and PPO regimes are not made at sentencing but rather toward the end of the sentence of imprisonment, and serve the important purpose of protecting the public from recidivist offenders who present a high, or very high, risk of further serious sexual or violent offending. In order to achieve that purpose, an ESO or PPO can be made against a person even when the offence rendering them eligible for the imposition of the order was committed before the regimes (as they apply to the individual) were enacted.[3] In this sense the regimes operate retrospectively — because when the offence was committed the person was not in jeopardy of being subjected to such orders. This is the way in which we use the terms “retrospectively” and “retrospectivity” throughout these reasons.[4]
[2]The extended supervision orders (ESO) regime is created by Part 1A of the Parole Act 2002, and the public protection order (PPO) regime by the Public Safety (Public Protection Orders) Act 2014 [PPO Act], Subpart 2.
[3]We say “as they apply to the individual” as the scope of the ESO regime has been amended since its enactment to broaden its application (see below at [34]–[35]). Throughout these reasons, for brevity, when we refer to offending taking place before the enactment of the ESO regime, we also intend that to include relevant offending taking place before these subsequent amendments.
[4]There is some academic debate as to the different meanings of “retrospective” and “retroactive”: Ruth Sullivan The Construction of Statutes (7th ed, LexisNexis Canada, Toronto, 2022) at ch 25.02; and Jeremy Waldron “Retroactive Law: How Dodgy was Duynhoven?” (2004) 10 Otago LR 631 at 632–633. We do not make any comment on the distinction but simply use “retroactive” when referring to the right in s 26(1) to reflect the heading given to that section in the New Zealand Bill of Rights Act 1990 [the New Zealand Bill of Rights].
Mr Chisnall sought declarations in the High Court that the ESO and PPO regimes are inconsistent with a range of liberty and fair trial rights protected by the Bill of Rights, most notably, the s 26(2) right to immunity from a second penalty for an offence that a person has already been punished for.[5]
[5]These include ss 9, 18, 22, 23(5), 25(a) and (c)–(d), 26(1) and 27(1). Mr Chisnall no longer pursues declarations of inconsistency with the rights under ss 18, 24(e) and 27(1) in this Court. In notice of application for leave to cross-appeal, Mr Chisnall explains that in the context of a regime found to be penal in character, at least some of these broader rights are subsumed within s 26 and the other rights he pursues on the cross-appeal. In written submissions, Mr Chisnall makes reference to s 27(2), the right to judicial review. Leave was not sought or granted for that right, and we proceed on the basis that this was a mistaken reference.
He had some limited success with his application in the High Court.[6] Whata J issued a declaration that the ESO regime was inconsistent with s 26(2) of the Bill of Rights in that it imposed a second penalty, but only insofar as it operated retrospectively — that is, insofar as the qualifying offending was committed before the relevant part of the ESO regime came into force.[7] The Judge found that the order otherwise could constitute a justified limitation on Mr Chisnall’s right not to be subjected to a second penalty.[8] As for the PPO regime, the Judge was satisfied that it was not penal in nature, and therefore did not limit the s 26(2) right.[9]
[6]Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126, [2020] 2 NZLR 110 [High Court decision].
[7]At [161]. Despite concluding at [100] that retrospective ESOs also impose an unjustified limit on s 25(g) (the right to the benefit of a lesser penalty where the penalty has changed between the time of offending and sentencing), Whata J did not include s 25(g) in his ultimate declaration: see Chief Executive of the Department of Corrections v Chisnall (No 2) [2020] NZHC 243, (2020) 12 HRNZ 149 [High Court declaration decision] at [14]. This is likely because such a declaration was not sought by Mr Chisnall as the ESO and PPO regimes were introduced after he committed the relevant offences (see discussion below n 193).
[8]High Court decision, above n 6, at [98]–[99].
[9]At [142].
Mr Chisnall appealed to the Court of Appeal, maintaining that both the ESO and PPO regimes are inconsistent with s 26(2) irrespective of when the qualifying offence was committed.[10] He also pursued his claims for declarations that the regimes breached other rights that are affirmed in the Bill of Rights and that are detailed in his application. The Attorney-General cross-appealed, claiming that the Judge was wrong to find the ESO regime penal in nature, and so wrong to make any declaration of inconsistency.
[10]Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484 (Cooper, Brown, Clifford, Gilbert and Collins JJ) [Court of Appeal decision].
The Court of Appeal dismissed the Attorney-General’s cross-appeal, confirmed the High Court’s declaration, and allowed Mr Chisnall’s appeal in part, issuing broader declarations.[11] It found that each of 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.[12] It 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. It declined to address the inconsistency arguments in respect of other rights.[13]
Issues on appeal
[11]At [229]–[230]. The Court subsequently made those declarations in Chisnall v Attorney‑General [2022] NZCA 24, (2022) 13 HRNZ 107 (Cooper, Brown, Clifford, Gilbert and Collins JJ) [Court of Appeal declaration decision].
[12]Court of Appeal decision, above n 10, at [223]–[224].
[13]At [227]–[230].
Both parties pursue their respective appeals in this Court.[14] The arguments centre upon the application and effect of provisions of the Bill of Rights, in particular s 4 (enactment not impliedly repealed, revoked, invalid or ineffective by reason only of inconsistency with the Bill of Rights), s 5 (rights and freedoms in the Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society) and s 6 (whenever an enactment can be given a meaning consistent with the rights and freedoms contained in the Bill of Rights, that meaning is to be preferred).
[14]Attorney-General v Chisnall [2022] NZSC 77 (O’Regan, Ellen France and Williams JJ).
The grounds on which Mr Chisnall cross-appeals to this Court are shortly stated. He continues to argue that declarations of inconsistency should be issued for rights not covered by the existing declarations — including the s 22 right to be free from arbitrary detention and the s 9 right to be free from cruel or disproportionately severe punishment. We come on to discuss those rights shortly.[15] There are other aspects of his case on appeal that are helpful to set out at this point. Mr Chisnall has not pleaded or produced evidence as to the detailed effects of these regimes upon him, relying instead upon the wording of the statutory provisions and the effect of their application. He does not challenge that protection of the public from the risk of serious violent or sexual offending is a socially important objective. The primary argument advanced for Mr Chisnall by his counsel is that it is the nature and effect of the regime imposed by the orders that cannot be justified for the purposes of s 5 of the Bill of Rights because there were other less intrusive alternatives available. He also argues that with models based on risk assessment of future conduct, such as the ESO and PPO regimes, it is irrational, and therefore unjustifiably discriminatory, to limit the operation of the regime to those who have already offended — those who have not offended may pose just as much, or even greater, risk of offending in the future.
[15]Mr Chisnall also raises the right against retroactive criminalisation (s 26(1)), some of the rights to minimum standards of criminal procedure (namely s 25(a) and (c)–(d)) and the right to be free from imprisonment contrary to human dignity and humanity (s 23(5)). As we discuss below, we do not consider these rights are engaged: see below at [149]–[156], [157]–[158] and [168].
There is another feature of Mr Chisnall’s challenge to the ESO and PPO regimes which is important to set out at this point. Although the challenges are to the entirety of the regimes, submissions in support of his appeal focused on those aspects of the regimes that authorise detention. While the entirety of the PPO regime authorises detention, there are parts of the ESO regime that place limits upon the individual that do not amount to detention.
As for the Attorney-General’s position, the Attorney-General accepts that each of the ESO and PPO regimes entail the imposition of a second penalty for the purposes of s 26(2).[16] The Attorney-General also accepts, and it is common ground, that there is no more rights-consistent interpretation of either the ESO or PPO regimes available under s 6 of the Bill of Rights than the interpretation apparent on the face of the legislation — these appeals have not focused upon issues of interpretation. But the Attorney-General says that rights consistency can instead be achieved, indeed must be achieved, by the judge in the sentencing court when determining applications for an ESO or PPO. This follows from the fact that judges have a discretion whether or not to make the orders in question, and also some discretion as to the form of the orders then made. The Bill of Rights, the Attorney‑General submits, requires them to exercise that discretion to ensure that any limitation of rights imposed is justified for the purposes of s 5.
[16]In the High Court and Court of Appeal the Attorney-General argued that the ESO regime as amended, and the PPO regime, did not entail the imposition of penalties.
Flowing from this, the Attorney-General argues that the Court of Appeal erred in its approach to the application for declarations of inconsistency. It was wrong to address the issue of a declaration by reference to the ESO and PPO regimes in the abstract. Rather it is the court that has before it the application for the making of an ESO or PPO, not the court considering an application for a declaration of inconsistency, that will have the evidence to enable consideration of whether the orders are demonstrably justified. On the Attorney-General’s analysis there is, for the most part, no room for the declaration of inconsistency jurisdiction to operate in respect of the ESO and PPO regimes — the appropriate remedy for Mr Chisnall is to appeal against the making of the orders.[17]
[17]Mr Chisnall did in fact appeal against the orders themselves in a separate chain of proceedings. He successfully challenged the PPO, which was substituted instead for an ESO: see below at [68]–[69].
We say “for the most part” because the Attorney-General accepts that there is one aspect of the regime that cannot be accounted for or ameliorated in the exercise of the judicial power to make or decline an ESO or PPO. This is because, as noted above, the eligibility criteria capture people whose convictions pre‑date the enactment of the regimes as they apply to them (including Mr Chisnall) and thus have retrospective effect. However, it is argued that this is a reasonable limitation, justified for the purposes of s 5, because of the powerful public protection objectives the regimes respond to, the nature of the risks addressed by the regimes, and the high thresholds imposed for their .
During the hearing it became apparent that the appeals raised important issues as to the nature of the jurisdiction to issue declarations of inconsistency and as to matters of procedure associated with that jurisdiction. We therefore adjourned the hearing part way through to enable Te Kāhui Tika Tangata | the Human Rights Commission to intervene at our invitation, and also to enable the parties to file additional submissions on those and other issues. We record thanks to the Commission for the very helpful submissions it has provided on the many issues arising in the context of an application for a declaration of inconsistency. Indeed, we thank all parties for the assistance we have received with these important appeals.
Summary
We have allowed the appeal in part and dismissed the cross-appeal. We have found 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. In this way our findings result in declarations of inconsistency, although of narrower focus than those issued by the Court of Appeal.
The appropriate approach to declarations of inconsistency in respect of the ESO and PPO regimes
We have 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).[18] This argument was based on the premise that the judge considering the application for an ESO or PPO was required, and could use the discretion conferred by the regimes, to achieve rights consistency in the individual case.[19] We have 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.[20] Further, while it is true that the task for a judge, and any other decision-maker, is to interpret and apply legislation as consistently as possible with the Bill of Rights, had the judge in the sentencing court concluded that a rights-consistent application was not open to them, they would still have been required to apply the statutory scheme.[21] That is the effect of s 4 of the Bill of Rights. Accordingly, while the judge will be required to apply ss 5 and 6 when considering an application and when tailoring any orders (to the extent there is scope to tailor the orders), those provisions cannot be used to override the statutory .[22]
[18]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. See below at [104].
[19]See below at [91].
[20]See below at [95]–[96].
[21]See below at [97]–[99].
[22]See below at [104].
We have 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.[23] 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.
[23]See below at [100]–[103].
There are, however, exceptions in this case to the appropriateness of addressing rights consistency on a regime basis. These exceptions are in relation to the rights in s 9 (cruel or disproportionately severe punishment) and s 23(5) (imprisonment contrary to human dignity and humanity). We have concluded that issues of whether these rights are engaged in the context of the ESO and PPO regimes is best determined on a case‑by‑case basis.[24]
Whether the regimes limit the rights invoked by Mr Chisnall
[24]See below at [167]–[168].
The first issue for the Court, in terms of the rights consistency of the regimes, is whether they operate to limit the pleaded rights. Our findings in relation to that issue are as follows:
(a)The s 26(2) right to be free from a second penalty is engaged by the ESO and PPO regimes.[25] We have concluded that where the regimes authorise a second penalty amounting to a detention that is applied retrospectively, no justification for the imposition of such a penalty is possible, and to that extent the regimes are inconsistent with that right.[26] In all other cases, issues of justification do arise.[27]
(b)The s 26(1) right to be free from retroactive criminalisation and the s 25(a), (c) and (d) fair trial rights are not engaged by the ESO and PPO regimes as the regimes do not entail retroactive criminalisation of conduct.[28] No issues of justification therefore arise.
(c)The s 22 right to be free from arbitrary detention may be engaged by legislation retrospectively imposing a penalty amounting to detention.[29] However, this was not the basis of the s 22 argument before this Court, so no conclusion in respect of this right has been reached. The other arguments advanced for Mr Chisnall in relation to s 22 are better addressed under s 26(2).[30]
(d)The ss 9 and 23(5) rights may be infringed by the ESO and PPO regimes in certain circumstances. But Mr Chisnall did not provide evidence establishing a limitation on these rights in his case.[31] No issues of justification therefore arise.[32]
The issue of justification
[25]See below at [138].
[26]See below at [146] and [169].
[27]See below at [144]–[145] and [169].
[28]See below at [156]–[157].
[29]See below at [162].
[30]See below at [163]–[164].
[31]The Court of Appeal did not address these rights: Court of Appeal decision, above n 10, at [227]–[228].
[32]See below at [167]–[168].
The second issue for the Court is whether any such limitation on rights (capable of justification) is justified for the purposes of s 5 of the Bill of Rights. We have noted that although s 5 requires the Court to consider whether any such limitation of rights has been demonstrably justified, for the most part the Attorney‑General elected not to file evidence to justify the limitations on rights engaged by the regimes.[33] This was with the exception of brief factual evidence as to the operation of the ESO and PPO regimes, and legislative fact evidence — the latter filed to justify the retrospective operation of the regimes.[34] The Court was therefore constrained in its consideration of the issues raised in these appeals by the limited evidence available to us.[35]
[33]See below at [191].
[34]See below at [199].
[35]See below at [214].
We have discussed the weight to be given by the courts, when assessing the issue of justification, to the choice that Parliament did in fact make.[36] We have observed that it is well‑established that, when assessing the reasonableness of limits, regard should be had to the justification offered by the decision-maker. As to the weight to be given to Parliament’s choice, regard should be had by the courts to Parliament’s institutional capacity and expertise with regard to the particular subject matter.
[36]See below at [249]–[250].
In addressing the issue of justification for the purposes of s 5 of the Bill of Rights, we have distinguished between the retrospective and prospective application of the regimes on the basis that a retrospectively applied second penalty involves a more serious limitation of the affirmed right. We have also distinguished between the aspects of the regimes that contemplate and authorise detention (the entirety of the PPO regime, and the special conditions of the ESO regime that provide for intensive monitoring and/or residential restriction, which can authorise detention in varying forms and degrees) and those that do not (the standard ESO conditions). This is because detention is at the most punitive and most liberty‑depriving end of the range of penalties that the law can impose in New Zealand.
Prospective application of the non‑detention authorising part of the ESO regime
Addressing first the prospective application of those aspects of the ESO regime that do not authorise detention: we have concluded that the objective of protecting the public from recidivist offenders who, on the basis of good evidence, are assessed as posing a high, or very high, risk of further serious sexual or violent offending, is an objective of sufficiently high societal importance in a free and democratic society to be capable of justifying a limit on the s 26(2) right to be free from the imposition of this form of second penalty.[37] We have concluded, on the evidence before us, that these particular limitations are rationally connected to this objective, and, if administered in accordance with the requirements of s 5 that they be no more intrusive than reasonably necessary to achieve their purpose, are proportionate and therefore justified.[38]
[37]See below at [208].
[38]See below at [209]–[210] and [230].
We have not, therefore, found an unjustified limitation of the s 26(2) right in respect of this aspect of the ESO regime.[39] But we have qualified this finding as follows.[40] The Court had very limited evidence before it from Mr Chisnall as to the operation of the standard conditions and their effect on him. There was also very little argument directed to particular conditions. We have expressed concern that the standard condition relating to contact with children may not be responsive to the particular offender, or management of the risk in association with them. We have made no finding in relation to that given the absence of argument and evidence.
Retrospective application of the non-detention authorising part of the ESO regime
[39]See below at [256].
[40]See below at [257]–[258].
In respect of that part of the ESO regime authorising the retrospective application of limitations not amounting to detention, it would of course be less rights‑intrusive were they not applied retrospectively. Having said that, this would not achieve the purposes of the legislation.[41] The legislative fact material established that the regime was intended to enable management of the risk associated with a number of offenders who had committed the eligible offences before the regime had been enacted — and who posed a real and ongoing risk of similar offending in future.[42]
[41]See below at [231] and [259].
[42]See below at [201]–[204] and [259].
In light of the nature and seriousness of the risk being managed, the rational connection between the restrictions authorised by the standard conditions and the management of that risk, and the fact that the restrictions are at the lesser range of what constitutes a penalty, we have concluded that the limitation on the s 26(2) right effected by these parts of the ESO regime is justified for the purposes of s 5.[43]
Retrospective application of the PPO regime and of the detention-authorising part of the ESO regime
[43]See below at [260].
As noted above, we have concluded that the retrospective application of the detention‑authorising parts of the ESO and PPO regimes (retrospective when applied to people who committed a qualifying offence before the enactment of the regimes as it could apply to them) is not capable of justification for the purposes of s 5.[44] This is consistent with case law to the effect that retrospective criminal liability and retrospective increased penalties cannot be justified. A retrospectively imposed second penalty amounting to a detention entails a limitation on the core of the right protected by s 26(2). The application of regimes in this context is therefore inconsistent with the right affirmed in s 26(2) in this regard.[45]
Prospective application of the PPO regime and of the detention-authorising part of the ESO regime
[44]See below at [146]–[148].
[45]See below at [169].
As to whether the PPO regime and the detention-authorising parts of the ESO regime are justified when orders are made prospectively, we have found that while the objectives of these aspects of the regimes are important, the limits imposed are not proportionate to those objectives.[46] Based on the legislative fact evidence and overseas case law before us, it appears that other plausible options exist which are likely to be less rights intrusive. Any such model would be based around the following three pillars:[47]
(a)achieving public protection by the least restrictive means possible for each offender;
(b)minimising the punitive impact of the restrictions on the offender; and
(c)requiring mandatory provision of rehabilitation designed to meet the needs of the offender (including where indicated, therapeutic treatment).
[46]See below at [261]–[262].
[47]See below at [235].
The ESO and PPO regimes do not reflect these three pillars, and insufficient justification was given for this more rights-intrusive model.[48] Therefore, we have found the prospective application of the PPO regime and the detention-authorising parts of the ESO regime impose an unjustified limitation on s 26(2).
Discussion of declaration of inconsistency jurisdiction
[48]See below at [238]–[244] and [261]–[262].
We have discussed the nature of the jurisdiction to issue a declaration of inconsistency, noting that the jurisdiction is not exercised to review Parliament’s legislative choices.[49] Nor does the issue of a declaration invalidate the legislation in question, or affect the orders as they apply to Mr Chisnall.[50] Rather, 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.[51] The court cannot shirk that responsibility. Indeed Parliament has recognised the role that the court plays in this regard in ss 7A and 7B of the Bill of Rights.[52] Nevertheless, legislation is enacted by a democratically elected body — so that a finding that legislation is inconsistent with the Bill of Rights is not to be lightly made.[53]
[49]See below at [247] and [252].
[50]See below at [69], [87] and [88].
[51]See below at [247] and [252].
[52]See below at [87] and [252].
[53]See below at [252].
We have sought further submissions on the form of the declarations of inconsistency to be made in this case.[54]
Roadmap
[54]See below at [267].
In addressing the complex issues that arise on appeal, we have divided these reasons into five parts. They are:
(a)Setting the scene (legally and factually).
(b)The threshold question on these appeals: is the declaration of inconsistency jurisdiction available and appropriate where the legislation provides a discretion to the judicial officer making the orders?
(c)Do the ESO and PPO regimes limit any or all of the affirmed rights as contended by Mr Chisnall?
(d)The s 5 inquiry — are these reasonable limits, justified in a free and democratic society?
(e)The exercise of the discretion to issue a declaration.
First section: Setting the scene
We have noted above that the focus of these appeals is on the aspects of the regimes that authorise detention. However, the application was not expressed in such limited terms and was not dealt with by the lower courts in this way. We therefore describe the overall regimes and later address issues of rights compliance.
Development of the ESO and PPO regimes
ESOs were first introduced in 2004 through Part 1A of the Parole Act 2002.[55] In its original iteration the regime empowered the Chief Executive of Ara Poutama Aotearoa | the Department of Corrections (the Chief Executive) to apply for an ESO only in respect of persons imprisoned for a child sex offence.[56] Applications could be made at any time up until the offender’s latest sentence expiry date or the expiry of their release conditions, whichever was later.[57] The original purpose of an ESO was to “protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing sexual offences against children or young persons”.[58] The orders were to be made for the “minimum period required for the purposes of the safety of the community” in light of the risk, its duration and the seriousness of the harm that would be caused were the risk realised.[59] Although an ESO could be extended if special circumstances applied, even then the total length of an ESO could not exceed 10 years.[60]
[55]Inserted by s 11 of the Parole (Extended Supervision) Amendment Act 2004.
[56]Parole Act, s 107B(2) and (3) (as enacted) described the relevant sexual offences, which almost entirely involved victims under the age of 16 (the only relevant exceptions being intercourse with “severely subnormal” individuals, which could include adults: subs (2)(i) and (m)).
[57]Section 107F (as enacted). See also 107C(1) (as enacted).
[58]Section 107I(1) (as enacted).
[59]Section 107I(5).
[60]Sections 107I(6) and 107N(5) (as enacted). These subsections were repealed on 12 December 2014 by the Parole (Extended Supervision Orders) Amendment Act 2014 [ESO Amendment Act]. Section 6(2) of that same Act amended s 107A(b) to provide that an ESO may last for “not more than 10 years at a time” rather than “up to 10 years” (emphasis ).
By 2015, the 10‑year maximum was due to be reached for some offenders subject to ESOs, and with the expiry of those orders, the ability to manage any continuing risk would come to an end. Proposals were formulated to amend the ESO regime by enabling orders to be renewed for as long as they were needed to meet risk, and to expand the reach of the regime beyond high‑risk child sex offenders to include high‑risk sex offenders who offend against adults, and very high‑risk serious violent offenders. However, policy work identified that there was a small cohort of the highest risk offenders for whom the ESO regime was considered insufficient to meet risk, an insufficiency said to be evidenced by instances of reoffending by those subject to .
In 2014, Parliament amended the ESO regime broadly in accordance with these proposals,[61] and also enacted the Public Safety (Public Protection Orders) Act 2014 (the PPO Act). The latter created the PPO regime which provides for detention for an indeterminate term of those found to be the highest risk sexual and violent offenders — a response to the concern identified above that the ESO regime was inadequate to manage the risk associated with these offenders.
[61]ESO Amendment Act, above n 60.
Each of the various pieces of ESO legislation were subject to reports made by the Attorney-General under s 7 of the Bill of Rights.[62] All of these reports identified inconsistency with the s 26(2) right to be free from a second penalty.[63] Issues were also identified with the retrospective application of the regime, including under s 26(1), and in respect of aspects of that regime that gave rise to arbitrary detention under s 22.[64] By contrast, the Attorney‑General reported that the PPO regime was not penal and was otherwise rights consistent. This was because of the civil nature of the PPO regime; the requirement for a mental health/behavioural threshold supported by expert evidence; the system for regular review of orders; and the emphasis on residents’ autonomy and needs in the guiding principles of the Public Safety (Public Protection Orders) Bill.[65]
The ESO regime
[62]As we come to, this provision requires the Attorney-General to report to Parliament where a Bill appears to be inconsistent with the New Zealand Bill of Rights: see below at [81].
[63]See Margaret Wilson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole (Extended Supervision) and Sentencing Amendment Bill (11 November 2003); Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole (Extended Supervision Orders) Amendment Bill (2 April 2009) [2009 s 7 report]; and Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole (Extended Supervision Orders) Amendment Bill (27 March 2014) [2014 s 7 report]. See also David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole Amendment Bill (22 August 2023) [2023 s 7 report], a report on the 2023 amendments referred to below n 97.
[64]Concerns with s 22 were later said to be addressed by the provision of greater review rights: 2014 s 7 report, above n 63, at [7]–[11]. But see 2023 s 7 report, above n 63, at [25]–[26].
[65]Public Safety (Public Protection Orders) Bill 2012 (68-1), cl 5; and Office of the Attorney‑General Public Safety (Public Protection Orders) Bill – Consistency with the New Zealand Bill of Rights Act 1990 (14 October 2012) at [27]–[27.3]. (This was not a s 7 report but an opinion of the Attorney-General on consistency with the New Zealand Bill of Rights. The General noted that the s 7 procedure need not be only an “after the event” exercise, but can involve early engagement with legislative proposals to ensure rights consistency: at [7]).
Following the 2014 amendments, the ESO regime has the purpose of protecting “members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”.[66]
[66]Parole Act, s 107I.
The Chief Executive can apply to the sentencing court[67] for an ESO in respect of an “eligible offender”.[68] An eligible offender is someone who has received a sentence of imprisonment for one of a listed number of sexual and violent offences (collectively referred to as “relevant offences”[69]), and is either still subject to a determinate sentence of imprisonment (whether or not for a relevant offence), release conditions or an existing ESO.[70] The application must be supported by a health assessor’s report from either a psychiatrist or psychologist.[71]
[67]Section 107D defines the “sentencing court” as the High Court unless every relevant offence for which the offender was most recently subject to a sentence of imprisonment was imposed by the District Court. See also ss 107GAA(2)(a) and 107IAB(2).
[68]Section 107F.
[69]Section 107B.
[70]Section 107C. The definition of eligible offender extends to certain people arriving in New Zealand following serving a sentence for a relevant offence in an overseas jurisdiction. Those provisions are not at issue in these appeals.
[71]Section 107F(2)–(2A). See also s 107IAA. The role of health assessor is defined in s 4(1) of the Sentencing Act 2002.
In the case of an application made in connection with serious sexual offending, the health assessor must address whether there is a high risk that the offender will commit a relevant sexual offence in future, and whether the offender displays the relevant traits and behavioural characteristics.[72] Those are, whether the offender:[73]
(a)displays an intense drive, desire, or urge to commit a relevant sexual offence; and
(b) has a predilection or proclivity for serious sexual offending; and
(c) has limited self-regulatory capacity; and
(d) displays either or both of the following:
(i)a lack of acceptance of responsibility or remorse for past offending:
(ii)an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.
[72]Parole Act, s 107F(2A)(a).
[73]Section 107IAA(1). This list of traits and characteristics, and that in s 107IAA(2), was amended in 2014 to be more detailed and evidence-based than as originally enacted: ESO Amendment Act, above n 60, s 16.
Where the grounds for the application are that the eligible offender is at very high risk of committing a relevant violent offence, the health assessor must address whether there is a very high risk that the offender will commit a relevant violent offence in future, and whether the offender displays each of the relevant behavioural characteristics.[74] Those are, whether the offender:[75]
[74]Parole Act, s 107F(2A)(b).
[75]Section 107IAA(2).
(a)has a severe disturbance in behavioural functioning established by evidence of each of the following characteristics:
(i) intense drive, desires, or urges to commit acts of violence; and
(ii) extreme aggressive volatility; and
(iii)persistent harbouring of vengeful intentions towards 1 or more other persons; and
(b) either—
(i)displays behavioural evidence of clear and long-term planning of serious violent offences to meet a premeditated goal; or
(ii) has limited self-regulatory capacity; and
(c)displays an absence of understanding for or concern about the impact of his or her violence on actual or potential victims.
The court may make an ESO if satisfied that, having reviewed the health assessor’s report, the offender has, or has had, a “pervasive pattern of serious sexual or violent offending” and there is a “high risk” of future relevant sexual offending, and/or “a very high risk” of future relevant violent offending.[76]
[76]Sections 107I–107IAA.
As to duration, the legislation provides that the ESO must be for the minimum period required for the purposes of the safety of the community in light of the level of risk posed by the offender, the seriousness of the harm that might be caused to victims, and the likely duration of the risk,[77] and in any case must be for no longer than 10 years.[78] The Chief Executive may however apply for a fresh ESO, and there is no limit on how many such orders may be made.[79]
[77]Section 107I(5).
[78]Section 107I(4).
[79]Section 107F(1)(b) states that where an offender is already subject to an ESO, the Chief Executive can apply for a further ESO at any time before the expiry of that order.
As to the nature of restrictions imposed when an ESO is made, the standard conditions largely replicate parole standard conditions, and are administered by probation services — with discretion being delegated to probation officers in respect of the operation of some of the conditions.[80] They include:
(a)reporting requirements;
(b)control (through direction and consent processes) over accommodation, employment and overseas travel;
(c)participation in a rehabilitative needs assessment if required;
(d)non-association with specified persons without permission; and
(e)requirements, if directed, to allow the collection of biometric information.[81]
[80]Section 107JA; and see s 14.
[81]The biometric information may only be used to help manage offenders to ensure public safety, identify offenders before they leave New Zealand and to support enforcement of the condition that the offender must not leave New Zealand without consent: s 107JB.
Some of the standard ESO conditions are more restrictive than standard conditions for parole. For example, the offender must not associate with or contact a person under the age of 16 years without the written approval of a probation officer, and adult supervision, irrespective of the nature of their offending.[82] There is also greater control on where the offender may live.[83]
[82]Section 107JA(1)(i).
[83]The standard ESO conditions require that the offender obtain written consent before moving to any new residential address: s 107JA(1)(c). Section 14(1)(c), the equivalent standard parole condition, provides that an offender must not move to a new residential address in another probation area without the prior written consent of the probation officer.
While the standard conditions do not authorise detention, special conditions can be imposed that amount to detention. If the ESO is made, the Chief Executive (or any probation officer) can apply to the Parole Board for the imposition of special conditions.[84] If these include residential restrictions, the probation officer must define the area of the residence within which the offender must remain, and the offender must remain within that area for the times specified.[85] Residential requiring 24‑hour home detention can only apply within the first 12 months of the order, but residential restrictions requiring home detention anywhere short of 24 hours a day can apply for the entire length of the ESO.[86] Unlike a parole situation, these residential restrictions can be imposed without the eligible offender’s .[87] Special conditions can only be imposed for a purpose set out in s 15(2); that is, to reduce the risk of offending, to facilitate or promote rehabilitation, to provide for the reasonable concerns of the victim, or to comply with an intensive monitoring condition.[88]
[84]Sections 107K(1) and (4).
[85]Sections 15(3A) and 33(2)(c).
[86]Section 107K(3)(a)–(b). In 2009, the special conditions were amended to allow for electronically monitored home detention, short of 24 hours per day, for the entire length of an ESO: Parole (Extended Supervision Orders) Amendment Act 2009, s 4. The explanatory note to the amendment Bill stated this was only reinstating the original position under the Parole (Extended Supervision) Amendment Act 2004 which it said was unintentionally altered by amendments in 2007: Parole (Extended Supervision Orders) Amendment Bill (24–1) (explanatory note) at 1–2. However, in his s 7 report on this Bill, the Attorney-General doubted whether the original Act in fact allowed for the imposition of such conditions for longer than 12 months: 2009 s 7 report, above n 63, at [5], n 3.
[87]Parole Act, s 107K(1A).
[88]Sections 107J(1)(b) and 107K(1) and (4); and see s 15(2).
The Chief Executive can also apply to the court for an order that the Parole Board impose an intensive monitoring condition.[89] An intensive monitoring condition requires an offender to submit to being accompanied and monitored for up to 24 hours a day by an approved individual.[90] The condition can be for no more than 12 months, and the court may not make such an order more than once.[91] There is no particular risk threshold that applies for the making of the intensive monitoring order — the statutory scheme proceeds on the basis that it is for the Chief Executive to establish that such orders are necessary to manage the risk associated with the offender.
[89]Sections 107IAB and 107IAC(1) and (4).
[90]Section 107IAC(2).
[91]Sections 107IAC(3) and (5). Subject to the exception in s 107IAC(6).
It is plain then that residential restrictions may be imposed that are so significant as to amount to a detention, and that intensive monitoring may also effect a detention of the subject.
The offender has no explicit right to rehabilitation or therapeutic support under this statutory scheme. However the standard conditions require the offender to undertake a rehabilitative or reintegrative needs assessment as required.[92] Special conditions can also be imposed requiring participation in rehabilitative or reintegrative programmes which include psychiatric or other counselling or assessment, attendance at any medical, psychological, social, therapeutic or employment‑related programme, or placement with an appropriate person or agency such as an iwi, hapū, whānau, marae and other community‑based group.[93]
[92]Section 107JA(1)(h).
[93]Sections 15(3)(b) and 16. But any condition requiring the offender to participate in a programme must not result in the offender being supervised, monitored or otherwise restricted each day for longer than necessary to attend and participate in the activities: s 107K(3)(bb)(i).
The regime provides for rights of review. The decision to impose special conditions is subject to the same review provisions as any decision by the Parole Board under the Parole Act.[94] The Board must also review the appropriateness of any high‑impact conditions (certain residential restrictions and electronic monitoring) and certain concurrent special conditions every two years.[95] If an offender is subject to repeated ESOs back‑to‑back, the sentencing court must, on application by the Chief Executive, review the new ESO 15 years after the first ESO was imposed, and every five years after the imposition of any subsequent ESOs thereafter.[96] At that point the court may only confirm the order if it is satisfied a high risk of relevant sexual offending, or a very high risk of relevant violent offending, remains.[97]
[94]Section 107S; and see s 67.
[95]Sections 107RB–107RC.
[96]Section 107RA(1)–(2).
[97]Section 107RA(6). These review conditions were not part of the regime as originally enacted. Sections 107RA and 107RB were only inserted in 2014 by the ESO Amendment Act, above n 60, and s 107RC in 2023 by the Parole Amendment Act 2023.
The language of the provisions is criminal — the person made subject to an ESO is referred to in the statutory provisions as “the offender”, and the court dealing with the application is referred to as “the sentencing court”. An offender may appeal the sentencing court’s order to the Court of Appeal, and in that context an ESO is treated as a “sentence”.[98] The forms and procedures that apply to ESO applications are explicitly criminal. Certain provisions of the Criminal Procedure Act 2011 are invoked, with necessary modifications, to set the procedures.[99] A judge has powers under that Act and the Crimes Act 1961 to issue a warrant for the arrest of the offender if necessary to compel their attendance at the hearing of the application for an ESO.[100] The judge has powers to grant bail to an offender who is the subject of an ESO application, with the Bail Act 2000 applying as if the offender were charged with an offence and was not bailable as of .[101]
[98]Section 107R.
[99]Section 107G.
[100]Section 107G(3).
[101]Section 107G(6).
As to the consequences of non-compliance by the offender, breach of any condition of the ESO without reasonable excuse is an offence, and the offender is then liable to up to two years’ imprisonment.[102] This is in contrast to the offence of breaching parole conditions, which only carries a maximum punishment of a year’s imprisonment or a fine of $2,000.[103]
The PPO regime
[102]Section 107T.
[103]Section 71.
A PPO is the most restrictive post-sentence order available. The effect of the order is to authorise detention and to place the subject of the order under the control and direction of the Chief Executive. There is neither a maximum nor fixed term to the order. Unless it is cancelled pursuant to the review provisions, it continues for the rest of the subject’s life.
Sections 4 and 5 frame all that follows in the PPO Act. Section 4 states that the objective of the Act is not to punish the person against whom orders are made, but rather “to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences”. Section 5 sets out the following principles to which those exercising a power under the PPO Act must have regard:
(a)orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:
(b)a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:
(c)a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
(d)persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.
It is significant that the regime directs certain respondents to other regimes — under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act) or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) as appropriate.[104]
[104]PPO Act, s 12.
The main focus of the PPO Act is upon the making of PPOs, although it provides for other orders ancillary to the operation of that regime. Section 7 defines who is eligible for the making of a PPO, the qualifying criteria tracking back to previous offending by the person. Relevant to these appeals are the criteria that the person is detained in prison for a serious sexual or violent offence or is currently subject to an ESO with special supervision conditions.[105]
[105]Section 7(1)(a)–(b).
The Chief Executive may apply to the court for a PPO against an eligible person on the ground that there is a very high risk of imminent serious sexual or violent offending by the person, the application to be made within the six months prior to the person’s release from detention.[106]
[106]Sections 7(1)(a)(ii) and 8.
The application must be accompanied by at least two reports prepared by health assessors addressing the questions whether the respondent exhibits, to a high level, four specified behavioural characteristics and whether there is a very high risk of imminent serious sexual or violent offending by the respondent.[107] The relevant characteristics are:[108]
(a)an intense drive or urge to commit a particular form of offending:
(b)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:
(c)absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):
(d)poor interpersonal relationships or social isolation or both.
[107]Section 9.
[108]Section 13(2).
The court may then make a PPO only if satisfied on the balance of probabilities that the respondent is eligible under s 7 and poses a very high risk of imminent serious sexual or violent offending if released from prison or left unsupervised.[109] The court may not find that risk to be established unless satisfied that the person exhibits a severe disturbance in behavioural functioning, “established by evidence to a high level”, of the four behavioural characteristics above.[110] This isa higher threshold than under the ESO regime. The risk of offending must be “very high” and “imminent” — to be contrasted with the risk to be established under the ESO regime, which need only be of offending “in future” and, for sexual offending, need only be a “high” risk.
[109]Section 13(1).
[110]Section 13(2).
The structure of the PPO regime is different to that of the ESO regime — there are no standard or defined special conditions. In fact, there is no clear statement of the effect of the making of an order in the PPO Act. Rather, it is necessary to work forwards and backwards from definitions to substantive provisions to gain an understanding of the implications of a PPO for the individual.
The Act provides that a building and its adjacent land within a prison precinct, which are adequately separate and secure, may be declared as a residence for the purposes of the Act.[111] Once so declared, such a building ceases to be a prison for the purposes of the Corrections Act 2004.
[111]Section 114.
A person subject to a PPO is defined as a resident, and the Chief Executive has legal custody of every such resident.[112] Residents must stay in the residence that the Chief Executive designates by written notice and must obey all lawful directions.[113] A resident has all the rights of a person of full capacity not subject to a PPO, except to the extent limited by the Act.[114] The Act expressly contemplates or provides for the extensive limitation of some rights. It allows for detention and for the search, restraint and seclusion of residents in defined circumstances.[115] The manager of the residence has power to preclude visits by some visitors, and all visits must be supervised.[116] The resident’s rights to communicate in writing or by electronic means may be limited by their management plan which may prohibit communication with designated people, and the right to access to email and Internet may be subject to .[117]
[112]Section 3 definition of “resident” and s 21. The exception is individuals instead detained in a prison under a prison detention order. See below at [63].
[113]Sections 20 and 22.
[114]Section 27. See also ss 28–40.
[115]Sections 63–67 and 71–73.
[116]Section 34. Certain visits may be unsupervised in order to meet a resident’s rehabilitative needs.
[117]Sections 32–33, 43 and 45. But see s 46.
Each resident must have a management plan that determines how they are managed within the residence based on their needs assessment.[118] The plan includes the resident’s reasonable needs, any treatment and programmes that may be offered to them, and a personalised management programme for the goals that will contribute to their eventual release and reintegration.[119] Although residents have a right to rehabilitative treatment, that is subject to the requirement that the treatment has “a reasonable prospect of reducing the risk to public safety posed by the resident”.[120]
[118]Sections 41–42.
[119]Section 42(3).
[120]Section 36. Residents are also subject to limitations on their financial freedom: see ss 28 and 40.
The court is also empowered, on the application of the Chief Executive, to order that a person subject to a PPO be detained in prison rather than a residence.[121] This order can be made immediately after making a PPO, and only ceases to have effect if cancelled or if the person ceases to be subject to a PPO.[122] Detention in prison can only be ordered, however, if the court is satisfied that the person would, if detained in a residence, pose an unacceptably high risk to themselves or others that could not be safely managed, and that all less restrictive options have been considered and any appropriate options have been tried.
[121]Section 85.
[122]Sections 85(4) and 91.
The PPO Act makes detailed provision for the review of the status of the resident: every year a panel must review whether the resident remains at a very high risk of imminent serious sexual or violent offending.[123] If the panel considers that there may no longer be such a risk, they may direct the Chief Executive to apply to the court for the review of the order.[124] If the panel does not so direct or, after reviewing the PPO, the court determines that there is continuing justification for the PPO, the panel or court must review the management plan to determine whether it remains appropriate.[125] The management plan must also be reviewed whenever the plan itself provides for it; whenever the court, the review panel, an inspector, or an Ombudsman recommends a review or change; when the resident in good faith requests a change; or when the manager considers it necessary.[126] Every five years the Chief Executive must apply to the court for a review of the continuing justification of the order.[127] The resident may also apply for a review of the order, but only with the leave of the court.[128]
[123]Section 15. The review panel consists of six members appointed by the Minister of Justice, one of whom is, or was, a judge of the High Court or District Court, at least two of whom are health assessors, and at least four of whom have experience in the operation of the Parole Board: s 122.
[124]Section 15(2); and see s 18.
[125]Sections 15(3) and 19.
[126]Section 44(1).
[127]Section 16. In some circumstances, the court may direct that reviews instead happen every 10 years: s 16(2).
[128]Section 17.
Proceedings under the PPO Act are civil. The language and procedure used is that of the civil jurisdiction. The person against whom the order is sought is referred to as the “respondent”.[129] The application proceeds by way of originating application and is subject to the rules that regulate the High Court in its civil jurisdiction.[130] The provisions of the Criminal Procedure Act are not invoked, although the PPO Act does confer a statutory power on the judge to order the interim detention of the respondent prior to the final disposition of the application.[131]
[129]Section 3.
[130]Section 104; and see, for example, s 105.
[131]Section 107.
It is however a criminal offence, punishable by a term of imprisonment not exceeding five years, to escape from the residence in which the subject of a PPO is required to stay.[132] This is in contrast to the MHCAT and IDCCR Acts, where escaping from care or breaching conditions carry no criminal penalty.[133] It is also to be contrasted with the maximum sentences of one year’s imprisonment for breaching parole conditions and two years’ imprisonment for breaching the conditions of an ESO.[134]
The nature of the risk presented by Mr Chisnall and the orders made to address it
[132]Crimes Act 1961, s 120(1)(bb).
[133]Mental Health (Compulsory Assessment and Treatment) Act 1992 [MHCAT Act], s 53 and Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 [IDCCR Act], ss 110–114.
[134]Above at [51].
Mr Chisnall has spent a total of 11 years of his adult life in prison serving sentences imposed for a series of sexual offences in his teenage years. His victims were all strangers to him, children or adult women, who he approached in public parks. Mr Chisnall had been preoccupied with sexual violence since the age of 10, and committed his first rape around age 15.[135] The following year he was convicted of an unlawful sexual connection and an assault. At age 18 he committed a second rape.[136] When Mr Chisnall for that offending, the Judge declined to impose a sentence of preventive detention[137] or to make a compulsory care order under the IDCCR Act.[138]
[135]R v Chisnall DC New Plymouth CRI-2008-021-527, 31 July 2009.
[136]R v Chisnall HC Whanganui CRI-2005-083-806, 29 March 2006 [2006 sentencing decision].
[137]At [47]. Preventive detention can be imposed by a court under s 87 of the Sentencing Act at the time of sentencing. It allows for indefinite detention of an offender following their finite sentence of imprisonment.
[138]At [52]–[53]. Mr Ellis noted that Mr Chisnall did at one point meet the statutory criteria for intellectual disability, but that he ceased to fit the definition because his adaptive skills increased.
Ever since his release from prison on 27 April 2016, Mr Chisnall has been subject to various orders. He was initially granted parole to reside with special monitoring conditions at Anglican Action, an approved community support centre in Hamilton.[139] When this offer of accommodation became unavailable, the Parole Board revoked his parole. Mr Chisnall was then made subject to an interim detention order for a PPO pending the end of his prison sentence.[140] This interim order was amended in January 2017 to relocate him to Matawhāiti residence — the status of this residence is discussed further below.[141] While at Matawhāiti, Mr Chisnall was monitored 24 hours a day and allowed to leave only for specified trips with staff supervision.
[139]The Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 (Wylie J) [2017 HC judgment] at [6].
[140]Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 784 (Fogarty J) [2016 HC judgment]; and Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796 (Fogarty J).
[141]Below at [78]. Prior to this, Mr Chisnall was detained at the PPO residence within the Leimon Villas self-care unit inside the perimeter fence of Christchurch Men’s Prison: 2016 HC judgment, above n 140, at [2].
After a series of unsuccessful appeals by Mr Chisnall,[142] a PPO was issued in December 2017.[143] A further string of appeals resulted in the PPO being quashed, reissued and quashed again.[144] Finally, on 23 August 2023 a 10-year ESO was issued with special conditions, including intensive monitoring for the first 12 months.[145]
[142]Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 (Asher, Heath and Dobson JJ); Chisnall v The Chief Executive of the Department of Corrections [2017] NZSC 50 (Elias CJ, OʼRegan and Ellen France JJ); and Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 (Elias CJ, William Young, Glazebrook, O’Regan and Ellen France JJ) [2017 SC judgment].
[143]2017 HC judgment, above n 139.
[144]Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 (Miller, Cooper and Clifford JJ); The Chief Executive of the Department of Corrections v Chisnall [2021] NZHC 32 (Gordon J) [2021 HC judgment]; and Chisnall v Chief Executive of the Department of Corrections [2022] NZCA 402 (Clifford, Gilbert and Courtney JJ).
[145]Chief Executive, Department of Corrections v Chisnall [2023] NZHC 2278 (Downs J) [2023 HC judgment].
Multiple health assessors’ reports show that as well as an intense drive and desire for relevant sexual offending, Mr Chisnall demonstrates poor self-control, a lack of remorse or understanding for his victims and a history of difficulties forming interpersonal relationships.[146] Despite his positive progress in effectively dealing with his offending-related thoughts, multiple experts considered these thoughts have, and will continue to be, his primary coping mechanism in stressful situations.[147] Multiple risk assessment tools assess him at posing a high risk of reoffending, particularly against adult women and children, a risk which some experts believe will continue to be present for years to come.[148]
[146]2017 HC judgment, above n 139, at [54]–[80]; 2021 HC judgment, above n 144, at [148]–[187]; and 2023 HC judgment, above n 145, at [18]–[21].
[147]2017 HC judgment, above n 139, at [56]–[57]; 2021 HC judgment, above n 144, at [148] and [150]; and 2023 HC judgment, above n 145, at [18].
[148]2017 HC judgment, above n 139, at [98]–[103]; 2021 HC judgment, above n 144, at [200]–[230]; and 2023 HC judgment, above n 145, at [23]–[27] and [33].
Mr Chisnall does not have a mental disorder for the purposes of the MHCAT Act, and his level of intellectual disability does not clearly qualify him for detention under the IDCCR Act.[149] However, he has at various times been assessed to have low cognitive functioning, psychopathy, paranoid personality traits, PTSD, ADHD and possible autism spectrum disorder.[150] At age 20, his communication and interpersonal skills were equivalent to those of a four-year-old.[151]
[149]2017 HC judgment, above n 139, at [35] and [38]; and 2017 SC judgment, above n 142, at [47].
[150]2017 HC judgment, above n 139, at [102]–[103]; and 2021 HC judgment, above n 144, at [220].
[151]2006 sentencing decision, above n 136, at [27].
Mr Chisnall himself accepts that he poses a high risk of future sexual offending and consented to being subject to an ESO. We accept the submission however that his consent to the making of such an order does not deprive him of the right to seek a declaration that the ESO regime, in its present form, is inconsistent with rights affirmed under the Bill of Rights. It is important to note that the issuing of such a declaration will have no effect on the current orders applying to Mr Chisnall.
The administration, operation and effect of the ESO and PPO regimes
At the time of the hearing, we did not have evidence before us as to the special conditions that have applied, and continue to apply, to Mr Chisnall under the various orders he has been subject to, or as to the day-to-day effect upon him of these orders.[152]
[152]A number of (now expired) interim special ESO conditions are laid out in sch 1 to the 2023 HC judgment, above n 145.
We did have before us a brief affidavit from Ms Leota, at the time National Commissioner of the Department of Corrections. Ms Leota’s evidence was that as at March 2019 there were 263 offenders subject to an ESO, seven whom were subject to an intensive monitoring condition. As for PPOs, there were three individuals subject to a PPO and one subject to an interim detention order.
Ms Leota’s evidence described the operation of ESOs and PPOs more generally. She explained that a review panel within Corrections, relying on the health assessors’ reports, makes a recommendation to the Chief Executive as to whether application for an ESO should be made.[153] The length of order sought is determined on a case‑by‑case basis, dependent on a variety of factors including the offender’s age, risk level and their ability to engage in treatment.
[153]Ms Leota notes that in practice the recommendation is made to the National Commissioner, as they hold the delegation from the Chief Executive to make applications for ESOs.
Ms Leota said that given the range of offending types and manner of offending that can attract an ESO, special conditions are also tailored to each individual based on their particular reoffending risks and rehabilitation and/or reintegrative needs.
After an ESO is granted, the probation officer works with a High Risk Response team within Corrections to assess which conditions will be required to mitigate that individual’s particular risks and to address any needs. A detailed application is then made to the Parole Board outlining the rationale for the proposed conditions. This is supported by a psychologist’s report endorsing these conditions. Ms Leota explains that the conditions sought and imposed on offenders are therefore highly variable. She says at one end, offenders subject to an ESO with intensive monitoring may be co‑located in a residential facility such as Spring Hill Village — which is on the property of Spring Hill Corrections Facility, although outside the prison wire. At the other end, an offender may be living in their own home, engaged in employment, but subject to reporting requirements and to exclusion zones (such as schools and playgrounds).
Ms Leota explains that there is a much more uniform situation for those subject to a PPO — because they are detained, no conditions are imposed upon them. She does not however explain how, within this broad framework, the particular restrictions to be applied to them, and any rehabilitation to be offered to them, are decided. At the time of making her affidavit she said there was only one PPO residence — Matawhāiti, a 1.055 hectare secure civil detention facility. It is surrounded by a four‑metre energised fence within the external boundary of Christchurch Men’s Prison, although outside the perimeter of the prison itself. As , this is where Mr Chisnall was detained while subject to the PPOs and interim detention orders. After his PPO was replaced by an ESO, he was relocated to Tōruatanga residence, an ESO residence also on the grounds of Christchurch Men’s Prison (and supported by largely the same staff as Matawhāiti) but outside the energised fence.
The Bill of Rights framework
The Bill of Rights provides much of the relevant legal framework for the issues on appeal. The long title to the Bill of Rights provides that its purpose is as :
(a)to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b)to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights
Section 2 states that the rights and freedoms set out are affirmed. Section 3 confirms the application of the Bill of Rights to each of the legislative, executive and judicial branches of Government and to “any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law”.
Also related to the executive’s obligations under the Bill of Rights is s 7, which requires the Attorney-General to bring to the attention of the House of Representatives any provision in a Bill introduced that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights. Any such report does not limit the right of Parliament to enact that provision.[154]
[154]Shi Shen Cai and others Human Rights Law (looseleaf ed, Thomson Reuters) at [BOR7.01].
We referred to ss 4, 5 and 6 above.[155] They are the critical provisions for the purposes of these appeals. They provide for how the court is to approach statutory interpretation in order to give effect to the affirmed rights and freedoms, and stipulate the test against which any limitation to a right is to be measured when determining whether there has been an infringement of the right:
[155]See above at [7].
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a)hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b)decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
5 Justified limitations
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Declarations of inconsistency
In Attorney-General v Taylor this Court confirmed that the High Court has jurisdiction to make a declaration that an enactment is inconsistent with the Bill of Rights.[156] The majority in that case said that by doing so the court is fulfilling its obligation to grant remedies for breaches of the Bill of Rights, and its obligation under the Declaratory Judgments Act 1908 to vindicate rights through the issue of a declaration.[157] Identifying whether the obligation of compliance has been met is a judicial function.[158] As to the purpose of such a declaration, the majority in Taylor said that a declaration is in itself a vindication of rights, may be of assistance to Parliament, and may have implications in the context of a complaint under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).[159] As Elias CJ said, the issue of a declaration is therefore important in terms of compliance with the rule of law — addressing, at least in part, the rule of law deficit that would otherwise exist in respect of the inconsistency with the right, and the absence of any justification for that inconsistency.[160]
[156]Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213.
[157]At [38], [50] and [53] per Glazebrook and Ellen France JJ, and [95] and [100] per Elias CJ.
[158]At [53] and [65] per Glazebrook and Ellen France JJ and [103] per Elias CJ.
[159]At [55]–[56] per Glazebrook and Ellen France JJ and [101] per Elias CJ. See International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR]; and Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
[160]At [105].
The first task for any court when addressing an application for a declaration of inconsistency is to interpret the legislation in question in accordance with the Bill of Rights interpretive framework. This is because the logic of the Bill of Rights, apparent from its provisions, is that a declaration of inconsistency is only appropriate where the court has concluded that the legislation cannot be interpreted in a rights‑consistent manner.
If, on the interpretation settled upon by the court, it is satisfied that there is a limitation on rights, the court then proceeds to assess, under s 5, whether that limitation is a reasonable limit, prescribed by law, as can be demonstrably justified in a free and democratic society. This is also called the “proportionality” assessment. At each stage the court may well require evidence to provide necessary context to assist it in assessing the existence, nature and extent of any limitation of rights.
In R v Oakes the Canadian Supreme Court proposed a formulation to guide judges through the equivalent proportionality assessment under the Canadian Charter of Rights and Freedoms.[161] That approach was adopted by this Court in R v Hansen.[162] We set that assessment out here, to assist in understanding the Attorney‑General’s primary argument on appeal. The issues the court is required to address can be summarised as follows:
(a)Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)Is the limiting measure rationally connected with its purpose?
(c)Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(d)Is the limit in due proportion to the importance of the objective?
We return to this framework (which we refer to as the Hansen proportionality assessment, or methodology) later when we apply it to the facts of this case.
[161]R v Oakes [1986] 1 SCR 103 at 138–140 per Dickson CJ, Chouinard, Lamer, Wilson and Le Dain JJ. See Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) [Canadian Charter].
[162]Hansen, above n 18, at [64] per Blanchard J and [104] per Tipping J.
An important point to make is that if the court issues a declaration of inconsistency, it does not thereby declare the law invalid — s 4 makes that clear. Even where a declaration is issued, the statute in question remains in full force and effect. Nor is the court requiring any response from Parliament to the declaration.[163] However, following this Court’s decision in Taylor, Parliament enacted ss 7A and 7B of the Bill of Rights and the House of Representatives adopted standing orders which together provide for how the executive and Parliament will respond to any such declaration.[164]
[163]New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill 2020 (230‑1) (explanatory note).
[164]See ss 7A and 7B of the New Zealand Bill of Rights, inserted on 30 August 2022 by s 4 of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022; and Standing Orders of the House of Representatives 2023, SO 269A and Appendix F.
As mentioned, in this case it is also important to note that the issue of a declaration will not affect the current orders as they apply to Mr Chisnall.[165]
Second section: Declarations of inconsistency where the legislation provides a discretion
[165]See above at [69].
The Attorney-General’s primary argument on appeal is that the declaration of inconsistency jurisdiction is not available in cases such as this, where (on the Attorney‑General’s argument) the power to impose orders limiting rights are discretionary in nature, and where there is sufficient flexibility in the regime to ensure rights consistency.
We deal with this argument first, as it is in a sense a threshold issue. If the Attorney-General is right in this argument, it largely disposes of the appeal and cross‑appeal — we say largely, because it still leaves the issue of retrospectivity to be addressed, which it is conceded cannot be cured through the application of a discretion.
It follows that in respect of the PPO regime and the detention aspects of the ESO regime, on the evidence we have available to us, there are less rights‑intrusive approaches available that would be as effective in securing the objective of reducing the risk to the public posed by high-risk offenders reoffending.[319]
(d)Are the limits in due proportion to the importance of the objective?
[319]We note there is one fundamental respect in which these alternatives would not be as effective: they would not apply retrospectively.
The s 5 assessment draws together the preceding three steps: is the purpose sufficiently important to justify the particular limits upon these particular rights, are the limits rationally connected to the purpose and, finally, is there a less rights‑intrusive measure available to achieve this purpose? The stepped Hansen assessment thereby guides the court making the ultimate assessment whether the balance struck in that legislation “between social advantage and harm to the right” was proportionate.[320]
[320]Hansen, above n 18, at [134] per Tipping J.
At this point in the analysis, the Court of Appeal found that for the Attorney‑General to establish that the correct balance had been struck required “evidence about the basis on which the legislative choices were made such as would provide and submit to scrutiny the rational justification for the measures”.[321] The ‑General argues that this was the wrong approach — the declaration of inconsistency jurisdiction does not involve the courts reviewing legislative choices. The Attorney-General, it is argued, was not required to justify Parliament’s decision to create these particular regimes, rather than some other approach that laid greater emphasis on therapy. The submission is made that Parliament is accountable only to the electorate for its legislative choices. Having made that choice, it is the resulting legislation that must be measured for its consistency with the Bill of Rights.
[321]Court of Appeal decision, above n 10, at [226].
We agree that the declaration of inconsistency jurisdiction does not entail the court reviewing Parliament’s legislative choices. However, the sentence in the Court of Appeal judgment pointed to by the Attorney-General appears in a conclusory paragraph, following on from an orthodox application of the Hansen proportionality assessment. In context, we do not read it as suggesting that judicial review of Parliament’s choices was for the courts.
In any case, it is clearly not the task of the court to check whether Parliament has made the best choice possible to address the problem the challenged legislation seeks to remedy. The issue for the court is not whether Parliament was correct to make the choice it made, but rather whether the limitations of rights are justified for the purposes of s 5. Having said that, and as already discussed, the court is inevitably assisted in this task by receiving evidence as to the objectives the legislation seeks to secure, and as to alternatives addressed in the legislative process.[322]
[322]See above at [198]–[208] and [213]–[215].
There is another issue, however. What weight should the court give to the choice that Parliament did in fact make? There is considerable debate in academic literature, and many pages of case law devoted to when and how courts should give weight to Parliament’s enactment of the legislation in question in the context of assessing the rights consistency of legislation.[323] We do not propose to review the terms of that debate other than to state that, as is well established, when assessing the reasonableness of limits, regard will be had to the justification offered by the decision‑maker.[324] That is true in proceedings where it is the rights consistency of a particular decision that is at issue.[325] It is also true even though the issue before the court is the rights consistency of legislation and the decision-maker is Parliament. As House of Lords noted in Huang v Secretary of State for the Home Department, this :[326]
… performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.
[323]See, for example, Regina (Nicklinson) v Ministry of Justice (CNK Alliance Ltd and others intervening) [2014] UKSC 38, [2015] AC 657 at [166]–[171] per Lord Mance SCJ; Conall Mallory and Hélène Tyrrell “Discretionary Space and Declarations of Incompatibility” (2021) 32 KLJ 466; and, in the New Zealand context, Paul Rishworth “The Bill of Rights and administrative law” (paper presented to the New Zealand Law Society Human Rights Intensive Conference, October 2022) 55 at 63.
[324]Hansen, above n 18, at [108] per Tipping J.
[325] Moncrief-Spittle, above n 167, at [102].
[326]Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 at [16].
Of course, in determining issues of weight for these purposes, regard should be had by the courts to Parliament’s institutional capacity. It may, for example, be the case that when it comes to complex social problems Parliament has institutional capacity and expertise to which weight should be given. Or the issue may raise vexed ethical issues to which there is, at the time, no clearly more rights‑consistent answer.[327] We accept, as a point well made by the Human Rights Commission, that the circumstances in which the issue of weight will arise are so varied that it would be incautious to attempt some formulation or scheme — it is better at this point in the development of the law relating to declarations of inconsistency to address the issue on a case-by-case basis, being explicit as to how and why weight is afforded to the decision taken and the reasons given.[328]
[327]Nicklinson, above n 323, at [165] per Lord Mance SCJ.
[328]Compare International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] QB 728 at [82]–[87] per Laws LJ; and M v H [1999] 2 SCR 3 at [305]–[321] per Bastarache J.
There is also ample discussion in the literature and case law as to whether the courts should show deference to Parliament’s legislative choices — this is a different point to that made in relation to Parliament’s institutional capacity.[329] In this case Ms Jagose submits that where the question of justification involves controversial issues of social and economic policy, with major implications for public expenditure, greater deference to the assessment of democratically elected institutions may be appropriate.[330] In Hansen, Tipping J used the language of giving Parliament “latitude” or a “margin of appreciation”, observing that “[t]here is a spectrum which extends from matters which involve major political, social or economic decisions at one end to matters which have a substantial legal content at the other”, suggesting that the closer to the legal end of the spectrum the more intense the court’s review will be.[331]
[329]See Regina (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945 at [150] per Lord Kerr SCJ. See also TRS Allan “Human Rights and Judicial Review: A Critique of ‘Due Deference’” (2006) 65 CLJ 671.
[330]Citing Regina (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] UKSC 16, [2015] 1 WLR 1449 at [93] per Lord Reed SCJ. Though we note that most policy decisions have at least indirect implications for public spending, and this case was specifically referring to welfare benefits.
[331]Hansen, above n 18, at [113]–[116] per Tipping J.
While, as noted above, we do not characterise the court’s task in connection with declarations of inconsistency as one of reviewing Parliament’s choices, we accept it is appropriate for the courts to acknowledge that the legislation in question has been enacted by a democratically elected body, so that a finding that it is inconsistent with the affirmed rights is not to be lightly be made. Beyond that point, we think the issue is better addressed as one of institutional capacity as discussed above. Ultimately, has imposed on the courts the duty to undertake the s 5 analysis, and the courts cannot shirk the responsibility to address issue of rights consistency. As the Human Rights Commission submits, it cannot be the case that the courts must assume that a pressing social need and the compatibility of means chosen to pursue it are justified just because Parliament has adopted them.[332]
[332]RJR-MacDonald, above n 266, at [136] per McLachlin J.
That takes us to the proportionality assessment in this case. As set out above, the purpose these regimes serve is of very high importance in a free and democratic society — keeping the public safe from serious sexual and violent offending by a group of offenders at high, or very high, risk of reoffending. We have also found that the regimes are rationally connected to the objective of reducing and managing that .
However, we have found the rights infringed are also of high importance in a free and democratic society. The ESO and PPO regimes are extraordinary and truly exceptional measures for a society to implement. Offenders such as Mr Chisnall are subjected to punitive restrictions and detention, potentially for life, not as a sentence in response to past offending — they have already served that sentence. They are subjected to them on the basis of opinion evidence as to the risk that, having served their time for serious offending, they are very likely to offend in a similar way again.[333] As counsel for Mr Chisnall submits, exceptional care is needed in constructing a protective regime in such circumstances to minimise to the extent possible the curtailment of rights, lest we become accepting in our society that it is appropriate to simply warehouse people for broader societal ends, without due regard to their rights.
[333]While we have acknowledged earlier at [133] that past conduct by the offender may be a significant predictor of risk, it is still subjecting the individual to conditions on the basis of what they may do, not what they have done. It is well-recognised that risk prediction is not an infallible science: Fardon v Australia, above n 188, at [7.4(4)]; and Tillman, above n 233, at [7.4(4)].
We have already, by this point, divided consideration of this issue into those provisions in the ESO regime that do not authorise detention (which can be identified as the standard conditions for an ESO) and the detention-authorising aspects of the regimes.
In respect of the non-detention aspects of the ESO regime where not applied retrospectively, we have concluded that there is no less rights-intrusive alternative. We have also identified that the standard conditions must be administered by decision‑makers (probation officers) to ensure that they are applied in the least rights‑intrusive manner necessary to achieve the objective. Taking all these matters into account, we are satisfied that these limitations on rights are reasonable limits that have been demonstrably justified in a free and democratic society.
However, we make two qualifications to this finding. The first is in respect of the standard condition that prohibits contact with a person under the age of 16. This condition is distinct from the traditional parole conditions. We surmise that its inclusion reflects the original purpose of the ESO regime — to protect against child sex offenders. Since the expansion of the regime, however, it now applies irrespective of the nature of the offending. This condition may not be responsive to the particular offender, or management of the risk in association with them. However, we received no evidence or argument on this issue so make no finding as to rights consistency in relation to this condition.
Secondly, the Court had very limited evidence before it from Mr Chisnall as to the operation of the standard conditions and their effect on him. There was also very little argument directed to particular conditions.
In respect of the non-detention aspects of the ESO regime, where they apply retrospectively, we have found that it would be less rights‑intrusive for them not to be applied retrospectively, but this would not achieve the purposes of the legislation — to manage a high risk of future serious offending by those who had committed eligible offences before the enactment of the ESO regime. The legislative fact material established that there were a number of offenders who fitted into this category.
In light of this, and given the nature of the risk, the rational connection between the restrictions entailed and managing that risk, and given the fact that the restrictions, whilst penal, are not amongst the most severe category of penalty, we are satisfied that the limitation on the s 26(2) right effected by the retrospective application of the parts of the ESO regime which do not authorise detention is justified for the purposes of 5.
That takes us to the detention-authorising aspects of these regimes. In the case of these provisions, we have found there is a less rights-intrusive model available to meet the social objective. The issue for the courts therefore is what justification there is for the more rights-intrusive model. The justifications for the more rights-intrusive model that appear on the legislative fact materials are to do with financial cost and the practicalities of providing appropriate facilities. Those references related only to the PPO regime. Even then, they were not to the effect that the financial cost of other models was prohibitive — just that it was more. The Attorney-General did not produce any evidence to further substantiate this point, or to enable us to assess the significance of the practicalities associated with the provision of facilities.
We step back from this detailed analysis in order to undertake the proportionality exercise in respect of the detention-authorising aspects of the regimes. We accept the limitation of rights is rationally connected to an important social objective. Nevertheless, given the substantial limitation of the rights involved and the importance of those rights, powerful justification is required. Still more so, given the lesser procedural protection available to the subject of an application than that available to a person subject to charge and conviction. That justification has not been provided in this case. On the evidence available to us, there were less rights‑intrusive options that would have better reflected the three core characteristics we have discussed. Although it is not our role to design or prescribe such a model, we have set out the three pillars that characterise it. While the objectives of the detention‑authorising aspects of the regimes were important, the limits imposed were not proportionate to those objectives. Therefore, those limitations on the s 26(2) right not to be subjected to a second penalty have not been justified for the purposes of s 5 of the Bill of Rights.
Fifth section: The exercise of the discretion to issue a declaration
Mr Chisnall submits that if a court determines that an enactment is inconsistent with one or more rights protected by the Bill of Rights, the court should ordinarily make a declaration of inconsistency. The Human Rights Commission supports this submission, but says that in exceptional circumstances a court may determine it would not be appropriate to make a declaration — for example, where there would be no utility in granting the relief.
The Attorney-General’s submission is that a declaration is a relief of last resort. That is correct if it is meant that, as is apparent from the structure of the Bill of Rights itself, a declaration of inconsistency should not be issued where rights consistency can be achieved through the s 6 interpretive exercise. The decision‑maker, and the courts, must do the hard work of securing a rights-consistent application and interpretation. As to the Human Rights Commission’s submission, there is clearly a discretion not to issue a declaration, and authority to support the proposition that the utility of that relief is a material consideration in the exercise of that discretion.[334] If, for example, the court concludes that a declaration is unnecessary in the circumstances it may decide not to issue one. But it was not suggested there were reasons not to issue a declaration in this case, other than the Attorney-General’s primary (and unsuccessful) argument that rights consistency in the application and effect of the regimes could be secured by the sentencing court. No relevant reason having been offered as to why a declaration of inconsistency should not be issued in this case, we are satisfied that it should.
[334]See Taylor, above n 156, at [58] per Glazebrook and Ellen France JJ. See also Regina (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271 at [39] per Lord Mance, Lord Kerr, Lord Hughes and Lord Hope SCJJ, [105] per Lord Clarke SCJ and [112] per Lord Sumption SCJ; Regina (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2005] 1 WLR 1681 at [52] per Lord Hoffmann; and Flood v Times Newspapers Ltd (No 2) [2017] UKSC 33, [2017] 1 WLR 1415 at [64].
For the avoidance of doubt, the declarations will be in respect of s 26(2) of the Bill of Rights and will relate to the entirety of the PPO regime and the detention‑authorising aspects of the ESO regime, retrospective or otherwise. The declaration will not include the aspects of the ESO regime that do not authorise detention, ie the standard conditions.
The issues in this case having developed since the issue of a declaration was addressed by the Court of Appeal, we consider it is appropriate to provide the parties with an opportunity to make submissions on the form of the declarations.
Result
The appeal is allowed in part.
The cross-appeal is dismissed.
Submissions the parties as to the form of the declarations should be no longer than 10 pages in length each, and should be filed in accordance with the filing timetable as :
(a)Appellants: by 3 March 2025.
(b)Respondent: by 10 March 2025.
Costs are reserved. If costs cannot be agreed, the parties should also address the issue of costs in their submissions on the form of the declaration.
GLAZEBROOK J
I write separately because I would not make a declaration of inconsistency. As this is a minority view, I express my reasons very briefly.[335] I concentrate on public protection orders (PPOs) but most of the points made also apply to the detention aspects of the extended supervision order (ESO) regime.
[335]Because I take this view I do not comment on the majority’s reasoning, except as it relates to the three points I make here.
First, I consider that there is a clash of rights involved: between the rights of potential victims and the person detained subject to a PPO. In this regard, I note the test for the imposition of a PPO: there must be “a very high risk of imminent serious sexual or violent offending” and the court must be satisfied that the person “exhibits a severe disturbance in behavioural functioning established by evidence to a high level” of the four characteristics set out.[336] The threshold means that, without the PPO, there is a very high risk of serious offending in the short term against particular victims, albeit as yet unidentified. It goes without saying that both serious sexual and violent offending have devastating and long-lasting effects on the lives of victims.[337] But the appeals were not argued on the basis of a clash of rights and it is therefore inappropriate to say more.[338]
[336]Public Safety (Public Protection Orders) Act 2014 [PPO Act], s 13(1)(b) and (2) (emphasis added).
[337]In relation to sexual and violent abuse it is sufficient to refer to Coral Shaw, Andrew Erueti and Paul Gibson Whanaketia: Impacts | I mahue kau noa i te tika (Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions, 25 June 2024).
[338]For more on clashes of rights see Eva Brems (ed) Conflicts Between Fundamental Rights (Intersentia, Antwerp, 2008); Shaheen Azmi, Lorne Foster and Lesley Jacobs (eds) Balancing Competing Human Rights Claims in a Diverse Society: Institutions, Policy, Principles (Irwin Law, Toronto, 2012); Robert J Sharpe and Kent Roach The Charter of Rights and Freedoms (7th ed, Irwin Law, Toronto, 2021) at 62–64; and Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [6.6.19]–[6.6.36]. I would also have been assisted by submissions on the views expressed, in particular on R v Pora [2001] 2 NZLR 37 (CA), in Jeremy Waldron “Retroactive Law: How Dodgy was Duynhoven?” (2004) 10 Otago LR 631 at 633–634 and 643–646.
Second, I consider that the PPO regime in its current form is capable of being rehabilitative and therapeutic.[339] We, however, had limited evidence of how it operates in practice.[340]
[339]PPO Act, ss 36 and 41–42.
[340]See above at [241]–[243] per Winkelmann CJ, O’Regan, Williams and Kós JJ.
Third, Te Aka Matua o te Ture | the Law Commission (the Commission) is reviewing the laws that aim to protect the community from reoffending risks posed by some people convicted of serious crimes, namely preventive detention, ESOs and PPOs. The Commission has recently issued a paper outlining its preferred approach.[341] It seems to me that in this case it would be better to wait until the final recommendations of the Commission and the Government response before considering whether it is appropriate to make a declaration.
[341]Te Aka Matua o te Ture | Law Commission Here ora? Preventive measures for community safety, rehabilitation and reintegration: Preferred Approach Paper (NZLC IP54, 2024). The period for submissions on this paper closed on 20 September 2024.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Appellants and Cross-Respondents
F J Handy, Wellington for Respondent and Cross-Appellant
J S Hancock, Te Kāhui Tika Tangata | Human Rights Commission, Wellington for Intervener
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