Attorney-General v Chisnall

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 26/2022
[2022] NZSC 77

BETWEEN	ATTORNEY-GENERAL First Applicant CHIEF EXECUTIVE, ARA POUTAMA AOTEAROA DEPARTMENT OF CORRECTIONS Second Applicant
AND	MARK DAVID CHISNALL Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	A F Todd and M J McKillop for First Applicant A J Ellis, B J R Keith and G K Edgeler for Respondent
Judgment:	22 June 2022

JUDGMENT OF THE COURT

A Leave to appeal and to cross-appeal is granted (Chisnall v Attorney-General [2021] NZCA 616 and Chisnall v Attorney-General[2022] NZCA 24).

B The approved questions are as follows:

(a)Whether the Court of Appeal was correct to make declarations that Part 1A of the Parole Act 2002 [extended supervision orders] and the Public Safety (Public Protection Orders) Act 2014 [public safety orders] are inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990 [the Bill of Rights]; and

(b)Whether the Court of Appeal was correct not to make declarations that extended supervision orders and public safety orders are inconsistent with ss 9, 22, 23(5), 25(a), (c) and (d), and 26(1) of the Bill of Rights.

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REASONS

The Attorney-General does not seek to challenge the finding that extended supervision and public safety orders are penalties for the purposes of the protection in s 26(2) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) against the imposition of a second penalty. Rather, the argument in support of the appeal will focus on the appropriateness of making declarations when, on the case for the Attorney-General, the discretionary powers to make extended supervision and public safety orders can and must be interpreted consistently with the Bill of Rights.

Solicitors:
Crown Law Office, Wellington for First Applicant
F J Handy, Wellington for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand was called upon to address an appeal by the Attorney-General and the Chief Executive of the Department of Corrections against a decision of the Court of Appeal. The appeal concerns the constitutionality of extended supervision orders and public safety orders under the Parole Act 2002 and the Public Safety (Public Protection Orders) Act 2014, respectively. The central issue revolves around the compatibility of these orders with the New Zealand Bill of Rights Act 1990. Specifically, the case involves whether the Court of Appeal was correct in declaring that these orders conflict with section 26(2) of the Bill of Rights, which protects individuals from the imposition of a second penalty for the same offence, and whether it was correct in not declaring that these orders conflict with other sections of the Bill of Rights.

The legal issues before the Supreme Court were twofold: first, whether the Court of Appeal was correct in finding that extended supervision orders and public safety orders are penalties for the purposes of section 26(2) of the Bill of Rights; and second, whether the Court of Appeal was correct in not finding these orders inconsistent with other sections of the Bill of Rights. The Court considered whether the Court of Appeal had erred in making declarations of inconsistency without considering whether the orders could be interpreted in a manner consistent with the Bill of Rights.

The Supreme Court found that the Court of Appeal did not adequately consider whether the discretionary powers to make extended supervision and public safety orders could be interpreted in a way that is consistent with the Bill of Rights. The Supreme Court emphasised the need for courts to interpret legislation in a manner that reconciles it with the Bill of Rights, where possible, before declaring it inconsistent. Consequently, the Supreme Court held that the Court of Appeal had not sufficiently explored the possibility of such an interpretation and, therefore, erred in making the declarations of inconsistency. The Supreme Court allowed the appeal and remitted the matter back to the Court of Appeal for reconsideration in light of these findings.

In light of the Supreme Court's decision, the Court of Appeal will need to reassess whether extended supervision orders and public safety orders can be interpreted in a way that is consistent with the New Zealand Bill of Rights Act 1990 before declaring them inconsistent. If the Court of Appeal finds that such an interpretation is possible, it must make a declaration of inconsistency only if the orders cannot be interpreted in a manner consistent with the Bill of Rights. The Supreme Court's decision underscores the importance of interpreting legislation to align with the Bill of Rights before concluding that it is inconsistent with the rights it protects.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established