Chief Executive of the Department of Corrections v Chisnall

[2020] NZHC 243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-756

[2020] NZHC 243

IN THE MATTER OF

New Zealand Bill of Rights Act 1990, s 26

BETWEEN

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Applicant

AND

MARK DAVID CHISNALL

Respondent

ATTORNEY-GENERAL

Respondent to Cross-Application

Hearing:

20 February 2020

(Via telephone conference)

Counsel:

B Keith and G Edgeler for Respondent

A Todd for Respondent to Cross-Application

Judgment:

17 March 2020

JUDGMENT (NO 2) OF WHATA J

This judgment was delivered by me on 17 March 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Crown Law, Wellington

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MARK DAVID CHISNALL [2020] NZHC 243 [17 March 2020]

[1]In my first judgment in this matter I resolved:1

[161] … that s 107I(2) of the Parole Act 2002 is inconsistent with section 26(2) of the New Zealand Bill of Rights Act, as informed by arts 14(7) and 26 of the International Covenant on Civil and Political Rights insofar as it applies retrospectively. …

[2]        I sought submissions on the proper form for a declaration to that effect. Drafting the declaration has proven difficult, notwithstanding the helpful cooperation of counsel.

[3]        The Attorney-General submitted that reference to arts 14(7) and 26 of the International Covenant on Civil and Political Rights (ICCPR) may be problematic insofar as the Court is perceived to be making a formal declaration of inconsistency with those articles.

[4]        Mr Keith, for the applicant, responded that a declaration in that form does not purport to formally declare inconsistency with those articles. He makes the point that the argument before the Court proceeded on the basis that the interpretation and the resolution of the central issues was informed by those articles.

[5]        I have come to the view that, because the jurisdiction of this Court to make declarations in relation to those articles of the ICCPR was not canvassed in argument, the declaration should be circumscribed to the key matter that was in issue, namely inconsistency with s 26(2) of the New Zealand Bill of Rights Act.

[6]The Crown proposed a form of declaration as follows:

Sections 107I(2) and 107C(2) of the Parole Act 2002 are inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, insofar as those provisions apply retrospectively to those who committed qualifying offence(s) before section 107I(2) came into force.

[7]        Mr Keith’s initial response was to seek removal of the word “retrospectively” because of its ambiguity. However, both counsel agreed that in fact the reference to “qualifying offence(s) before s 107I(2) came into force” introduced a potentially more significant ambiguity. This is because it is unclear what version of that section is being

1      Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126.

referred to and could lead to under or over-inclusion of offenders, depending on which version of s 107I(2) is being referred to.

[8]        Both counsel then retreated to the inclusion of the word “retrospectively” as providing a safer route for the purposes of the formal declaration. The declaration would then be:

Sections 107I(2) of the Parole Act 2002 are inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, insofar as those provisions apply retrospectively

[9]        I was initially attracted to this (relatively) simple approach, that is retaining the word “retrospectively” and excluding reference to “those who committed qualifying offence(s) before s 107I(2) came into force”. However, on further reflection, I became concerned that a declaration to that effect would still be ambiguous.

[10]      I indicated to counsel that the offending provision for the purposes of the declaration was in fact s107C(2), which defines eligible offender as follows:

To avoid doubt, and to confirm the retrospective application of this provision, despite any enactment or rule of law, an offender may be an eligible offender even if he or she committed a relevant offence, was most recently convicted, or became subject to release conditions or an extended supervision order before this Part and any amendments to it came into force.

[11]      I also indicated to counsel that, as I signalled in my first judgment at [157], it seemed to me that the declaration should be specifically directed to that section and that the scope of the declaration would be self-evident.

[12]      Counsel responded that there is still benefit in recognising that s107(I)(2) is the operative section of the Parole Act under which an extended supervision order is made. They agreed, however, that reference to s107C(2) will mitigate confusion. They therefore proposed the following:

Section 107C(2) of the Parole Act 2002 is inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, to the extent that it permits the making of an extended supervision order under section 107I(2) of the Parole Act 2002 in respect of any person whose relevant offence was committed prior to the coming into force of section 107I(2).

[13]      I am content with this form of the declaration except that counsel have reintroduced ambiguity by reinserting “in respect of any person whose relevant offence was committed prior to the coming into force of section 107I(2)”. For my part, that is unnecessary given s107C(2) defines the impugned retrospectivity.

[14]Accordingly, I make the following declaration:

Sections 107C(2) of the Parole Act 2002 is inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, to the extent that it permits the retrospective application of section 107I(2) of the Parole Act 2002.