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Chisnall v Attorney-General

Chisnall v Attorney-General

Case [2022] NZCA 24 22 February 2022

Constitutional Validity

Statutory Construction

Separation of Powers

Constitutional Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA21/2020
[2022] NZCA 24

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

Hearing:	2 and 3 February 2021 (further submissions received 21 December 2021)
Court:	Cooper, Brown, Clifford, Gilbert and Collins JJ
Counsel:	A J Ellis, B J R Keith and G K Edgeler for Appellant D J Perkins and M J McKillop for First Respondent No appearance for Second Respondent
Judgment:	22 February 2022 at 2.15 pm

JUDGMENT OF THE COURT

We make declarations that:
APart 1A of the Parole Act 2002 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.
BThe Public Safety (Public Protection Orders) Act 2014 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

In our judgment of 22 November 2021 we expressed our conclusion that it was appropriate for the Court to make declarations of inconsistency.[1]
[1]Chisnallv The Attorney-General [2021] NZCA 616 at [230].
In accordance with [231] of our judgment we received a joint memorandum of counsel, but the memorandum did not record an agreed position as to the form of declarations to be made.
Having considered the memorandum of counsel, we consider that the declarations that will best reflect the terms of the judgment are declarations that:
(a)Part 1A of the Parole Act 2002 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.
(b)The Public Safety (Public Protection Orders) Act 2014 is inconsistent with s 26(2) of the New Zealand Bill of Rights Act 1990, and that inconsistency has not been justified under s 5 of that Act.

We make declarations accordingly.

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

Details

AGLC: Chisnall v Attorney-General [2022] NZCA 24
Case: [2022] NZCA 24
Decision Date: 22 February 2022 at 2.15 pm

CaseChat Overview and Summary

The case of Chisnall v Attorney-General involved an appeal by the appellant, Mark David Chisnall, against a decision of the High Court which had dismissed his challenge to the constitutionality of Part 1A of the Parole Act 2002 and the Public Safety (Public Protection Orders) Act 2014. The appeal was heard by the Court of Appeal of New Zealand, comprising Cooper, Brown, Clifford, Gilbert, and Collins JJ, on 2 and 3 February 2021, with further submissions received on 21 December 2021. The first respondent was the Attorney-General, and the second respondent was the Chief Executive of the Department of Corrections. The central issue before the court was whether Part 1A of the Parole Act 2002 and the Public Safety (Public Protection Orders) Act 2014 were inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990 and, if so, whether such inconsistency could be justified under section 5 of the same Act.

The court found that both Part 1A of the Parole Act 2002 and the Public Safety (Public Protection Orders) Act 2014 were inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, which protects the right to freedom from unreasonable search and seizure. The court concluded that these statutes did not provide adequate safeguards to ensure that the rights protected under section 26(2) were not infringed. Furthermore, the court determined that the inconsistencies could not be justified under section 5 of the New Zealand Bill of Rights Act 1990, as the measures were not proportionate to the legitimate aims pursued.

As a result of the court's reasoning, it made declarations that Part 1A of the Parole Act 2002 and the Public Safety (Public Protection Orders) Act 2014 are inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, and that this inconsistency has not been justified under section 5 of that Act. The court's decision highlights the importance of ensuring that any measures affecting fundamental rights under the New Zealand Bill of Rights Act 1990 are balanced and proportionate.

Orders