Attorney-General v Chisnall

[2022] NZSC 77

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

1. 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