G v Commissioner of Police
[2022] NZHC 3514
•19 December 2022
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPLICANT TO CONTINUE UNTIL FURTHER ORDER OF THE COURT IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-399
[2022] NZHC 3514
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of a determination(s) made under s 17(1) and
determination notice pursuant to s 19 of the Returning Offenders (Management and Information) Act 2015
BETWEEN
G
Applicant
AND
COMMISSIONER OF POLICE
First Respondent
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Second RespondentWELLINGTON DISTRICT COURT
Third Respondent
Hearing: 14 February 2022; further evidence received on 28 February 2022,
7 March 2022, 27 April 2022 and 2 May 2022 and further
submissions received on 14 February and 2 May 2022Appearances:
Applicant in person
F E Cleary for the First and Second Respondents No appearance for the Third Respondent
Judgment:
19 December 2022
JUDGMENT OF GWYN J
G v COMMISSIONER OF POLICE [2022] NZHC 3514 [19 December 2022]
TABLE OF CONTENTS
Introduction [1]
Background [5]
The legal framework [14]
Consequences of determination as a returning prisoner [19]
Standard and special release conditions [20]
“Identifying particulars” [24]
Bodily samples [25]
Extended supervision orders (ESOs) [26]
Public protection orders (PPOs) [27]
Retention of information of returning offenders [28]
The Determination in relation to G [35]
Chronology [37]
G’s claim [38]
The issues in this case [42]
Retrospective application of a penalty [43]
Discussion [53]
Is the Determination a penalty? [61]
Relevance of the Act’s purpose [62]
Punitive effect [71]
Did Parliament intend to displace the presumption against retrospectivity? [74] Words of the Act [77]
Scheme of the Act [83]
Legislative history [93]
Double jeopardy [104]
Improper delegation [112]
Discussion [115]
Right to be heard in relation to s 17 determination and propriety of the overseas conviction [117]
Discussion [125]
Release conditions in breach of Bill of Rights [142]
Imposition of special conditions on basis of assumed risk [143]
Release conditions a breach of Bill of Rights [148]
Conclusion [154]
Relief [156]
Costs [157]
Name suppression [158]
Introduction
[1] This is a case about the application of a New Zealand law to a man who had been convicted of serious drug offending in Australia and, having served his sentence there, was deported to New Zealand as a “501” deportee.
[2] G is one of about two thousand 501 deportees from Australia to New Zealand since late 2014. Section 501 deportees are named after s 501 of the Migration Act 1958 (Cth), the provision that allows Australian Commonwealth authorities to cancel their visa. Any non-Australian citizen sentenced to 12 months’ imprisonment in an Australian prison is subject to deportation (even if they have served their sentence of imprisonment in Australia) on grounds of the person not meeting a test of good character. A person fails the good character test because, for example, they have a significant criminal record, or have committed certain criminal offences, or are reasonably suspected of being involved in a criminal group.
[3] G seeks judicial review of the 26 September 2019 determination of the Commissioner of Police (Commissioner) that he was a “returning prisoner” under the Returning Offenders (Management and Information) Act 2015 (ROMI Act) (the Determination).
[4] The Chief Executive of the Department of Corrections (Chief Executive) and the Wellington District Court are named as second and third respondents respectively.1 Under the ROMI Act, the Chief Executive may apply to the Court for the imposition of special conditions on a returning prisoner,2 and did so in this case. The District Court imposed special conditions on G. As is usual, the District Court abides the decision of the Court.
Background
[5] G immigrated to New Zealand with his parents and two siblings in 1991, when he was five years old. He became a New Zealand citizen in 1996.
1 G v Commissioner of Police CIV-2021-485-399, 13 September 2021 at [2(a)].
2 Returning Offenders (Management and Information) Act 2015 [ROMI Act], s 26.
[6] In 1997, when G was 11 years old, the family moved to Australia. G continued to live there with his family until the events set out below. The rest of G’s family remain in Australia.
[7] On 25 August 2014 G was found guilty of two charges of supplying a prohibited drug in large commercial quantities, pursuant to the Drug Misuse and Trafficking Act 1985, in the New South Wales District Court, Australia. Each of those charges was punishable by a maximum penalty of life imprisonment.
[8] On 11 September 2015 G was sentenced to an aggregate term of eight years’ imprisonment in respect of both charges. The non-parole period was five years and six months.
[9] G was deported from Australia under s 501, arriving in New Zealand on 10 October 2019. On arrival he was served with a Determination Notice issued by the Commissioner under s 19 of the ROMI Act, stating that he had been determined to be a returning prisoner for the purposes of the ROMI Act. The Notice included the standard release conditions to apply to him and advised that the Chief Executive may apply to the District Court for the imposition of special conditions. In anticipation of G’s return to New Zealand, the Chief Executive had made an application for interim special conditions in respect of G, on 8 October 2019, in addition to standard release conditions.
[10] On 22 October 2019, the Wellington District Court imposed the three interim special conditions sought by the Chief Executive. The interim special conditions required G:
(a)To reside at an address as directed by a probation officer and not to move from that address without prior written approval.
(b)To attend and engage in a rehabilitative assessment and any subsequent recommended treatment or programme, as directed.
(c)Not to possess, use or consume controlled drugs and/or psychoactive substances, except controlled drugs prescribed for him by a health professional.
[11] The interim special conditions were to expire on 22 November 2019 but were extended by the District Court on 27 November 2019 until the determination of the substantive application for special conditions.
[12] On 19 November 2019 the Chief Executive filed an application for special conditions (on a non-interim basis). G contested the imposition of the special conditions. On 12 June 2020 the District Court at Wellington imposed two special conditions on G, pursuant to s 26 of the ROMI Act.3 The conditions were:
(a)To undertake any counselling or programme as directed by the probation officer with the agreement of G.
(b)Not to possess, use or consume controlled drugs and/or psychoactive substances, except controlled drugs prescribed by a health professional.
[13] The standard conditions and the two special conditions expired on 9 October 2021.
The legal framework
[14] The purpose of the ROMI Act is “to obtain information from returning offenders” and “establish release conditions” for offenders returning to New Zealand following a prison sentence of more than one year in an overseas jurisdiction.4
[15] “Returning offenders” is a broadly-defined group,5 being persons who have been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand and, being liable for deportation or removal as a result of that conviction, have returned to New Zealand.
3 Chief Executive of the Department of Corrections v G [2020] NZDC 10559.
4 ROMI Act, s 3.
5 Section 7.
[16] The category of “returning prisoners” overlaps with that of returning offenders.6 The overlapping element is a conviction abroad in relation to conduct that would be an offence in New Zealand. The supplemental element for a returning prisoner is the requirement for a sentence of more than one year in prison. In addition, in contrast to a returning offender, there is no requirement that the person be deported or removed from the overseas country.
[17] Section 17 of the ROMI Act sets out the criteria for designating someone as a returning prisoner:
17 Criteria for determination that person is returning prisoner
(1)The Commissioner must determine that a person is a returning prisoner if the Commissioner is satisfied that the person—
(a)has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and
(b)has, in respect of that conviction, been sentenced to—
(i)a term of imprisonment of more than 1 year; or
(ii)2 or more terms of imprisonment that are cumulative, the total term of which is more than 1 year; and
(c)is returning or has returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.
(2)In subsection (1), release from custody means release from custody in a prison or, if a person is detained in an immigration or other facility following release from prison, release from that facility.
(3)To avoid doubt, a person who is released at the end of a prison sentence and has been in the community for more than 6 months is not a returning prisoner, even though he or she is later detained in an immigration or other facility.
[18] The determination is carried out in the name of the Commissioner and turns on whether the Commissioner is “satisfied” as to the s 17 criteria. A person the New Zealand Police have determined to have been sentenced overseas to more than one year in prison for conduct that is imprisonable in New Zealand and who is returning within six months of release from custody overseas is a returning prisoner. The requirement for a sentence of more than one year in prison can be cumulative with various sentences of less than one year and one day adding up in total to at least one
6 Section 7(b).
year and one day. The release from “custody” overseas can be at the end of the sentence, or from immigration detention that is imposed after release from the prison sentence.
Consequences of determination as a returning prisoner
[19] A number of consequences flow from a determination that a person is a returning prisoner.7 The returning prisoner is:
(a)immediately subject to standard release conditions,8 and to the possibility of imprisonment for breach of those conditions;9
(b)potentially subject to special release conditions, which requires a court order, made by the District Court on the application of the Chief Executive;10
(c)potentially required to provide identifying particulars and bodily samples;11 and
(d)potentially subject to the provisions of an extended supervision order or a public protection order.12
Standard and special release conditions
[20] The ROMI Act provides for the imposition of release conditions on returning prisoners. Section 25 provides:
25 Returning prisoner must comply with standard release conditions
A returning prisoner must comply with the following conditions (the standard release conditions) during the period for which he or she is subject to release conditions:
(a)the returning prisoner must report to a probation officer at the probation service centre stated in the determination notice as
7 Sections 24–30.
8 Section 24.
9 Section 31.
10 Section 26.
11 Section 14. Section 14 applies to returning offenders, which includes returning prisoners: s 7(b) definition of “returning offender”.
12 Parole Act 2002, s 107C(1)(c); and Public Safety (Public Protection Orders) Act 2014, s 7(1)(d).
soon as practicable, and not later than 72 hours after service of the determination notice:
(b)with all necessary modifications, the standard release conditions set out in section 14(1)(b) to (i) of the Parole Act.
[21] The standard conditions are those set out in s 14(1)(b) to (i) of the Parole Act 2002 (Parole Act):
14 Standard release conditions
(1)An offender who is subject to the standard release conditions must comply with the following conditions:
…
(b)the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so:
(c)the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer:
(d)if consent is given under paragraph (c), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender’s arrival in the new area:
(e)if an offender intends to change his or her residential address within a probation area, the offender must give the probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:
(f)the offender must not reside at any address at which a probation officer has directed the offender not to reside:
(fa) the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:
(fb) the offender must, if a probation officer directs, allow the collection of biometric information:
(g)the offender must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed the offender not to engage or continue to engage:
(h)the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:
(i)the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
[22] A court may, on the application of the Chief Executive (before or after a returning prisoner returns to New Zealand) impose special conditions on a returning prisoner. Section 26(3) of the ROMI Act provides parameters for the imposition of special conditions:
(3)A court must not impose a special condition unless it is designed to—
(a)reduce the risk of reoffending by the returning prisoner; or
(b)facilitate or promote the rehabilitation and reintegration of the returning prisoner; or
(c)provide for the reasonable concerns of victims of the returning prisoner.
[23] The court also has power, on the application of the Chief Executive, to impose one or more interim special conditions if satisfied that the imposition of special conditions is immediately necessary from the time that a returning prisoner returns to New Zealand.13 Interim special conditions expire after 30 working days from the date the person returns to New Zealand, but they may be extended by a “reasonable period” to allow an application under s 26(1) to be finally determined.14
“Identifying particulars”
[24] Returning offenders may be required within six months of their return to New Zealand to provide such “identifying particulars” – including photographs and fingerprints – as may be taken from people in Police custody in New Zealand, and the person may be detained for that purpose and commits an offence (liable to six months’ imprisonment) for failing to comply with any direction to cooperate, including by providing false information (for example, of biographical details).15
Bodily samples
[25] Sections 14 and 15 of the ROMI Act allow for the taking of bodily samples from returning offenders if the offence overseas equates to one that would allow samples to be taken under the Criminal Investigations (Bodily Samples) Act 1995.
13 ROMI Act, s 27.
14 Section 27(6).
15 Sections 8–13. “Identifying particulars” are defined in s 32(5) of the Policing Act 2008 as any or all of the following: (a) the person’s biographical details (for example, the person’s name, address, and date of birth); (b) the person’s photograph or visual image; (c) impressions of the person’s fingerprints, palm-prints, or footprints.
Extended supervision orders (ESOs)
[26] Returning prisoners under the ROMI Act are deemed to be “eligible offenders” in respect of whom an application for an extended supervision order (ESO) may be made under s 107C of the Parole Act.16 The standard and special conditions imposed under the ROMI Act are not an alternative regime for those who would otherwise meet the threshold for an ESO.17 Rather the ROMI Act is intended to dovetail with the ESO provisions. Release conditions imposed under the ROMI Act expire on the making of an ESO.18
Public protection orders (PPOs)
[27] A person who has committed a serious sexual or violent offence and, in respect of that offence, has been determined to be a returning prisoner under the ROMI Act or is a returning offender to whom subpart 3 of part 2 of the ROMI Act applies, and is subject to release conditions under the ROMI Act, meets the threshold for the imposition of a public protection order (PPO) under the Public Safety (Public Protection Orders) Act 2014.19
Retention of information of returning offenders
[28] The ROMI Act enables Police to obtain information that “may be used now or in the future by the Police for any lawful purpose”.20 The Police are responsible for the storage of identifying particulars of returning offenders.21
[29] G submitted that there is also a “register of deported offenders”. In support of this submission he referred to the Regulatory Impact Statement for the ROMI Bill which said:22
110. On 15 July 2015 the Minister of Justice announced that a register of deported offenders was in operation. Provided it is not replaced by a ROSR (Option Two), the
16 ROMI Act, subpart 4.
17 Chief Executive, Department of Corrections v Amohanga [2017] NZHC 1406 at [51].
18 ROMI Act, s 30(d).
19 Public Safety (Public Protection Orders) Act, s 7(1)(e), as inserted by s 36 of the ROMI Act.
20 ROMI Act, s 8.
21 Section 12.
22 Ministry of Justice Regulatory Impact Statement: Management of offenders returning to New Zealand (12 October 2015) [RIS] at [110].
register will provide a centralised record of returning offenders, and, support monitoring and evaluation efforts, specifically through tracking the volumes of returning offenders and rates of reoffending.
[30] G also referred to the Information Sharing Arrangement (MOU) between the New Zealand Government (New Zealand Police, Ministry of Business, Innovation and Employment (Immigration New Zealand)) and the Commonwealth of Australia (Department of Home Affairs, incorporating the Australian Border Force) dated 1 October 2018.
[31] G also points to the Inter-Agency Working Group (IAWG), comprising officials from nine New Zealand agencies.23 In response to an Official Information Act request from G, the Ministry of Justice advised that the IAWG receives information on returning offenders.
[32] The legislative history of the ROMI legislation shows that a “register” modelled on the Child Sex Offender Register, with a risk management framework sitting behind it, was one of the four options originally proposed.24 However, ultimately other options were prioritised over the registration option for what was seen as their consistency with the management of released prisoners in New Zealand and for their greater positive impact on public safety and reintegrative support.
[33] The ROMI Act does not include provision for a register in the sense contended for by G. However, at the hearing I directed that the respondents file further evidence on the question of what information from returning offenders/prisoners is collected and retained, how it is stored and who has access to it. The Department of Corrections advised that it maintains an internal spreadsheet of Returning Offenders; the spreadsheet is not a formal “register” and can be accessed only by the current Officers of the Corrections’ Returning Offenders team. The spreadsheet is an operational tool used to manage the notifications, arrivals/cancellations and applications of returning offenders and returning prisoners.
23 The agencies comprising the IAWG are the New Zealand Police, Department of Corrections, Ministry of Health, Ministry of Social Development, Oranga Tamariki, Department of the Prime Minister and Cabinet, Ministry of Justice, Ministry of Business Innovation and Employment and the Department of Internal Affairs.
24 RIS, above n 22.
[34] The evidence for the Commissioner is that the Police do not maintain a separate “register” for returning offenders. Records for returning offenders are stored in the Police National Intelligence Application database (NIA) in a case file under the confirmed identity of the returning offender, in accordance with s 8 of the ROMI Act. Fingerprints collected from returning offenders are retained in the national fingerprint database – Automated Biometric Information System (ABIS); photographs are retained in the IMS Photo Manager database; DNA samples are retained in the national DNA database. Police staff have access to full case records and summary information relating to fingerprints, photographs and DNA records, through the NIA. The Police evidence did not address the question whether any of this information is shared with (or separately accessible by) individuals or organisations other than the Police and, if so, for what purpose.
The Determination in relation to G
[35] The Determination Notice dated 26 September 2019 was served on G under s 19 of the ROMI Act. The Notice stated that G had been determined to be a “returning prisoner” for the purposes of the ROMI Act.
[36]The Determination Notice also stated that:
(a)G was subject to a two-year period of release conditions upon his return to New Zealand, starting immediately upon service of the notice. The standard release conditions were appended to the Notice.
(b)The Chief Executive may apply to the District Court for one or more special conditions to be imposed and the Court may impose such conditions.
(c)It is an offence under the Act to breach the standard release conditions or a special condition, punishable by a term of imprisonment for not more than one year or a fine up to $2,000.
(d)G might apply to the Commissioner for a review of the Determination, within 15 working days after service of the Notice.
(e)Under s 9 of the ROMI Act, G was required to tell the Police the address of the place he would be residing at and any address he intended to stay at and have his fingerprints and photograph taken by a police constable. It also advised that Police were authorised to detain him and use reasonable force to take his fingerprints and photograph. The Notice recorded that it is an offence to fail to comply with the constable’s directions exercising powers under ss 10 and 11 and an offence to provide false or misleading information. Both offences are punishable by a term of imprisonment for not more than six months and/or a fine not exceeding $5,000.
(f)As soon as possible, but no later than 72 hours after receiving the Determination Notice, G must report to a probation officer at the Manukau Probation Service Centre, or as directed.
Chronology
[37] It is useful to set out the key dates in relation to the ROMI Act and the specific events affecting G.
(a)April-May 2012: G committed the offences for which he was convicted.
(b)25 August 2014: G was found guilty in the New South Wales District Court of two charges of supplying a prohibited drug in large commercial quantities, pursuant to the Drug Misuse and Trafficking Act 1985.
(c)11 September 2015: G was sentenced in the New South Wales District Court to an aggregate term of eight years’ imprisonment, with a non- parole period of five years and six months.
(d)17 November 2015: Returning Offenders (Management and Information) Bill introduced.
(e)18 November 2015: Returning Offenders (Management and Information) Act 2015 received Royal assent and came into force.
(f)25 September 2019: Australian Border Operations Centre notifies Interpol and New Zealand Police of G’s deportation, to arrive in New Zealand on 10 October 2019.
(g)26 September 2019: Determination Notice, under s 19 of the ROMI Act, signed by the Commissioner of Police, stating that G has been determined to be a Returning Prisoner for the purposes of the ROMI Act.
(h)8 October 2019: Chief Executive of the Department of Corrections applied to the District Court for interim special conditions in respect of G.
(i)10 October 2019: G arrived in Wellington and was served with the Determination Notice, attaching the standard release conditions and an application for three interim special conditions.
(j)10 October 2019: G was served with a Databank Compulsion Notice, under the Criminal Investigations (Bodily Samples) Act. The Notice required him to give a bodily sample for a DNA profile databank.
(k)22 October 2019: The District Court imposed the interim special conditions sought by the Chief Executive.
(l)27 November 2019: The District Court extended the interim special conditions until determination of the substantive application for special conditions.
(m)12 June 2020: The District Court imposed special conditions on G.
(n)9 October 2021: The standard conditions and the two special conditions expired.
G’s claim
[38] G’s statement of claim pleads five causes of action. The first, second, third and fourth claims, are characterised as errors of fact and the Commissioner acting unreasonably, but all turn on G’s submission that, in making the Determination, the Commissioner was unlawfully applying the ROMI Act with retrospective effect. Although not specifically pleaded, G also makes an overlapping claim of double jeopardy.
[39] The fifth cause of action relates to the standard and special release conditions, to which G was subject from 10 October 2019 to 9 October 2021. G submits that the imposition of those conditions limited or breached his rights under the New Zealand Bill of Rights Act 1990 (Bill of Rights), in particular ss 18 (freedom of movement), 21 (against unreasonable search and seizure), 22 (liberty of the person), 26 (retroactive penalty and double jeopardy), 27 (right to justice) and 28 (other rights and freedoms not to be abrogated).
[40] Various other claims, not specifically pleaded, arose as the case progressed. These included a claim of improper delegation of the s 17 determination exercise; that G had a right to be heard in relation to the s 17 determination and that the Commissioner was required to consider the propriety of the qualifying conviction.
[41] The relief sought by G is a declaration that the Commissioner has acted unlawfully, quashing of the Determination, an order prohibiting the Commissioner from continuing to act unlawfully in the way declared, an order of mandamus ordering the Commissioner to properly perform his public duty, and, in respect of the alleged Bill of Rights breaches, compensation in the amount of $500,000.
The issues in this case
[42]The principal issues that arise from G’s claim are:
(a)Did the Determination result in G being subject to a retrospective penalty?
(b)Did the Determination result in G being subject to double jeopardy?
(c)Is there a right to be heard before the Commissioner makes a determination under s 17 as to whether a person is a returning prisoner?
(d)Is the Commissioner entitled to accept the propriety of the qualifying overseas conviction or is the Commissioner required to consider the actual conduct of the person in respect of whom a determination is being made in order to assess the propriety of that conviction?
(e)Are the standard and special release conditions imposed on G in breach of the Bill of Rights?
Retrospective application of a penalty
[43] G argues that the determination that he was a returning prisoner amounts to retrospective application of a penalty, in breach of the statutory presumption against retrospective application, as embodied in s 12 of the Legislation Act 2019 (“Legislation does not have retrospective effect”) and s 26 of the Bill of Rights.
[44] Section 17(1)(a) of the ROMI Act requires the Commissioner to be satisfied that the person has been convicted of a relevant offence (emphasis added). G’s submission is that those words must mean convicted on or after the date on which the Act came into effect. A conviction preceding that point is not a qualifying conviction.
[45] In this case, the ROMI Act applied to G retrospectively. G committed the qualifying offence, was charged, convicted and sentenced for the offending before the ROMI Bill was introduced and before the ROMI Act came into force.
[46] The Commissioner did not seek to justify any retrospective application by reference to s 5 Bill of Rights criteria, relying instead on what the Commissioner says is a clear Parliamentary intention that the ROMI Act have retrospective effect. The Commissioner advances three primary grounds for that submission:
(a)the words used to define “returning offender” and “returning prisoner”;
(b)if it was not applied retrospectively the ROMI Act would have sat idle for more than a year after it took effect;
(c)the relationship between the ROMI Act and the ESO provisions of the Parole Act.
[47] The Commissioner says that the ROMI Act applies from 18 November 2015 to those who meet the definition of “returning prisoner” and/or “returning offender” and those definitions make clear that a person may become subject to the Act in relation to convictions imposed before the Act came into force. The applicant’s argument would require that s 17(1)(a) be interpreted to mean “was convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand prior to 18 November 2015”. The Commissioner says that interpretation is untenable and contrary to the plain wording and purpose of the Act. For the Court to interpret s 17(1)(a) in any other way would be contrary to s 4 of the Bill of Rights.
[48] In addition, the Commissioner says that s 17(1) of the ROMI Act is clear that the only time limit on its application to a particular offender is the requirement that the offender is returning or has returned to New Zealand within six months after his or her release from custody during or at the end of the sentence.
[49] Second, the Commissioner says the very purpose of enacting the ROMI Act under urgency was to capture those deportees who had already been convicted. To interpret the Act as the applicant submits would mean that, at the time of the commencement of the Act, it would have applied to no one and certainly not to the Australian deportees who Parliament anticipated were to be returned to New Zealand by the Australian government and in respect of whom the ROMI Act was specifically drafted. If s 17(1)(a) was intended to mean convictions entered after November 2015, the Act would have sat idle for over a year, waiting for prospective deportees to commit offences, be convicted, serve a term of imprisonment for over a year and then be deported to New Zealand.
[50] Third, the Commissioner submits that the ROMI Act must be read in a way that is consistent with the provisions of the Parole Act.25
[51] The Commissioner also notes that the provisions of the Parole Act concerning ESOs were amended in 2014 by s 35 of the ROMI Act to include the following:26
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.
[52] The Commissioner says it would be a nonsense if, under s 107C of the Parole Act, a deportee could eventually be subject to an ESO in respect of a conviction that occurred prior to 2015, but not initially to the provisions of the ROMI Act. The Commissioner refers to the purpose of the ROMI Act and says it would be counterintuitive if there was no ability to obtain information from, or impose release conditions on, a high-risk deportee under the ROMI Act until such time as they were made subject to an application for an ESO under the Parole Act.
Discussion
[53] Both s 6(1) of the Sentencing Act 2002 and s 25(g) of the Bill of Rights affirm the right of those convicted of an offence where the penalty is varied between the commission of the offence and sentencing to the benefit of the lesser penalty of the two. The right is also affirmed by art 15(1) of the International Covenant on Civil and Political Rights (ICCPR),27 to which New Zealand is a party and which is relevant through the presumption of consistency with New Zealand’s international obligations.28
25 ROMI Act, s 4(2).
26 Parole Act, s 107C(2).
27 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
28 See New Zealand Air Line Pilots’ Assoc Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289; Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] per Blanchard, Tipping, McGrath and Anderson JJ; Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188, [2015] 1 NZLR 383 at [40]; Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [143] per McGrath J and [207] per Glazebrook J; and Ortmann v United States of America [2020] NZSC 120 at [96] and [313].
[54]Section 6 of the Sentencing Act provides:
6Penal enactments not to have retrospective effect to disadvantage of offender
(1)An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.
(2)Subsection (1) applies despite any other enactment or rule of law.
[55] The right contained in s 6 is reflected in s 25(g) of the Bill of Rights which provides:
25Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(g) the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
[56] In D (SC 31/2019) v New Zealand Police,29 the Court of Appeal noted that Butler and Butler consider that s 6(2) provides “a significantly more powerful protection than s 25(g)” as it overrides other enactments inconsistent with the right.30
[57]Section 26 of the Bill of Rights is also relevant:
26Retroactive penalties and double jeopardy
(1)No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
(2)No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
[58] There is a question whether s 6 of the Sentencing Act and s 25(g) of the Bill of Rights are directly applicable to G’s case. On a literal approach they are not – the ROMI Act was not enacted between G’s conviction and sentencing (in Australia), but after the sentencing.31 However, if the s 17 Determination is regarded as the
29 D (SC 31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213 at [54].
30 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [23.9.5].
31 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [55].
“sentence” for the purposes of s 6 and s 25, those provisions would directly apply. In my view, the s 17 Determination must be regarded as the “sentence” for this purpose because the imposition of the penalty that the ROMI Act imposes (as I conclude below) occurred only when G returned to New Zealand, not during the sentencing process that took place in Australia.32 Furthermore, as the Court of Appeal noted in McDonnell, the ESO regime is analogous to a sentencing, with the consequence that the rights under ss 24 and 25 of the Bill of Rights that apply to a sentencing apply equally to the ESO process.33 So too, I consider the ROMI regime to be analogous to the sentencing process, with the consequent protection of ss 6 and 25 applying. In addition, as I conclude below, the Determination engages s 26 of the Bill of Rights.
[59] In any event, s 26(1) reflects a fundamental principle. As the Court of Appeal said in R v Poumako:34
It is a fundamental right that no one should be held criminally liable for an act or omission which did not constitute an offence at the time it was committed, or be subjected to a sentence which was not in force at that time. A defendant’s conduct is to be judged by the law at the time of the conduct; not in retrospect. If Parliament chooses to depart from this principle it must surely take care to ensure that it does so with due deliberation and with firm adherence to proper form.
[60]And in R v Pora Elias CJ stated for the Court of Appeal:35
Freedom from retrospective penalty has long been the plank of the common law.
Is the Determination a penalty?
[61] All of the potentially relevant statutory provisions, as well as the common law, require a preliminary analysis of whether the Determination amounted to a “penalty”. That is considered by reference to the ROMI Act’s purpose and any punitive effect in practice.
32 See generally R v Mist [2005] NZSC 77, [2006] 3 NZLR 145.
33 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 at [39].
34 R v Poumako [2000] NZCA 69, [2000] 2 NZLR 695 at [73].
35 R v Pora [2001] 2 NZLR 37 (CA) at [32].
Relevance of the Act’s purpose
[62] The stated purpose of the ROMI Act is “to obtain information from returning offenders and establish release conditions for offenders returning to New Zealand following a prison sentence of more than 1 year in an overseas jurisdiction”.36
[63] The Regulatory Impact Statement for the Bill stated the key objectives of the Bill as:37
·protecting the public from reoffending, and
·providing greater support for the reintegration of returning offenders.
[64] The Attorney-General’s s 7 Bill of Rights report on the ROMI Bill notes, that standard release conditions:38
… are intended to reduce the risk of re-offending in the immediate period following release from prison. They serve an important social purpose of reducing crime and assisting reintegration of prisoners into society.
[65] Similarly, the s 7 report observed that special conditions may only be imposed by a Court and only if they are designed to reduce the risk of re-offending, facilitate rehabilitation and reintegration or make reasonable provision for victims of the offender.
[66] The Attorney-General expressed the view that under the Bill none of the standard or special conditions which must or can be imposed on a s 17 determination have a punitive character:39
No person may be punished twice for the same crime. Protection from double jeopardy is provided by s 26 of the Bill of Rights Act and it applies whether the punishment is imposed here or overseas. If additional punitive measures are applied after a person is sentenced it can amount to double jeopardy [f/n Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507(CA)] but under this
36 ROMI Act, s 3.
37 RIS, above n 22, at [18].
38 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Returning Offenders (Management and Information) Bill (20 November 2015) [s 7 report] at [13].
39 At [20].
Bill none of the standard or special conditions have a punitive character. In the case of special conditions they can only be imposed if they are designed to reduce the risk of re-offending, facilitate rehabilitation and reintegration or make reasonable provision for victims of the offender. Furthermore they can only be imposed by a Court which is a further safeguard against any risk of a punitive measure being imposed.
[67] I accept that the purposes of the ROMI Act are to protect the public and to provide support for the reintegration of returning offenders, and that the Act does so by establishing a regime for the identification and management of offenders returning to New Zealand.40 However, it is clear from previous authorities that the intention or purpose of legislation is not determinative on the question of whether a legislative regime is nonetheless punitive.
[68] The Court of Appeal in Belcher held that an ESO was a punishment for the purposes of ss 25 and 26 of the Bill of Rights, stating:41
We do not see it as decisive that the aim of the ESO scheme is to reduce offending and that the incidents of an ESO order are associated with this aim as opposed to the direct sanctioning of the offender for purposes of denunciation, deterrence or holding to account. The same is true (or partly true) of many criminal law sanctions (for instance, preventive detention and supervision) which are nonetheless plainly penalties.
[69] Similarly, in D (SC 31/2019) v New Zealand Police, in relation to registration under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Registration Act), the Supreme Court unanimously agreed “that the aim of the legislation is to reduce offending is not decisive in determining whether a consequence of criminal offending is a penalty”.42
[70] The Court of Appeal in Bell v R also held that the effect of a registration order under the Registration Act is punitive,43
… even if its primary purpose is the protection of further potential victims from harm. It will undoubtedly restrict in significant ways the freedom of offenders who have served their sentences.
40 Ministry of Justice Departmental Disclosure Statement: Returning Offenders (Management and Information) Bill (12 November 2015).
41 Belcher v Chief Executive of the Department of Corrections, above n 31, at [48].
42 D (SC 31/2019) v New Zealand Police, above n 29, at [58].
43 Bell v R [2017] NZCA 90 at [26].
Punitive effect
[71] The ROMI Act imposes conditions through a civil process, which does not provide the protections of the criminal process, but the regime is closely integrated into the criminal procedure process.44 Here, as in Belcher,45 there are a number of factors which support the view that a s 17 determination is by way of punishment:
(a)The triggering event is a criminal conviction;
(b)The person concerned is, throughout the ROMI Act, referred to as an “offender” and a “prisoner”;
(c)Eligibility for a s 17 determination depends on the person returning to New Zealand within six months after release from custody during or at the end of the sentence;
(d)The consequences of a s 17 determination are in effect a subset of the sanctions which can be imposed on offenders and extend to liability for detention on breach of the conditions imposed (ROMI Act, s 31);
(e)It is an offence to breach the terms of special conditions imposed pursuant to a s 17 determination and an offender is liable to up to one year’s imprisonment (s 31(2) ROMI Act); and
(f)The Legal Services Act 2011 does not specify whether applications – for example, under s 22 of the ROMI Act – are classified as civil or criminal. If criminal, that too would support the view that a s 17 determination is a punishment.
[72] The authorities cited indicate that an analogy between an ESO and a registration order under the Registration Act is appropriate. I consider that the same analogy can be drawn with a s 17 determination under the ROMI Act. The
44 See for example Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [134] regarding the ESO regime.
45 Belcher v Chief Executive of the Department of Corrections, above n 31, at [47].
consequences of being determined to be a returning prisoner (discussed at [19] – [34] above) amount to an ongoing intrusion into all aspects of a person’s private life for the duration of the conditions and indefinitely in respect of identifying particulars and bodily samples. In addition, as Ellis J observed in Bird v New Zealand Police, albeit in the context of sentencing considerations, placement on a sex offender register could also constitute “extra-curial punishment”.46 I consider that the consequences of the designation as a “returning prisoner”, together with retention of the person’s identifying particulars, which remain available to Police, for an indefinite period, including DNA and bodily samples, has a similar effect.
[73] A determination under s 17 is thus punitive in the sense required in the context of the presumption against imposition of a retrospective penalty.
Did Parliament intend to displace the presumption against retrospectivity?
[74] As the Supreme Court said in D (SC 31/2019) v New Zealand Police,47 where the issue of retrospectivity arises in the context of a penal enactment to which s 6 of the Sentencing Act applies, if it is intended that the legislation will impose a greater penalty than applicable at the time of the offending, the legislation needs to be clear to achieve that result. In the context of s 6 there is no need to resort to an R v Hansen analysis.48
[75] In D (SC 31/2019) v New Zealand Police, the majority of the Court found that the Registration Act was not sufficiently clear to displace the presumption, reflected in s 6, that those whose offending pre-dated the coming into force of the Act (and who were convicted after that date) cannot be the subject of a registration order.49 While recognising that s 9(1A) of the Registration Act (“for the purposes of subsection (1), the date on which the person is charged with the offence is irrelevant”) may have been an attempt to direct that s 9(1) should be interpreted retrospectively, the Court said it does not state in plain language that s 9 has retrospective effect.50 The Court compared
46 Bird v New Zealand Police [2017] NZHC 1296 at [28]–[29]. See also Benjamin Christy “Collateral consequences of criminal conviction in Aotearoa New Zealand” [2022] NZLJ 271.
47 D (SC 31/2019) v New Zealand Police, above n 29, at [75].
48 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
49 D (SC 31/2019) v New Zealand Police, above n 29.
50 At [78].
that provision with s 107C of the Parole Act which it said is “instructive” and noted there was no similar wording in s 9 or elsewhere in the Registration Act.51 The majority concluded that the Registration Act was not sufficiently clear to displace the presumption.52
[76] Where parliamentary purpose is clear, it must prevail over s 6 of the Sentencing Act.53 I therefore consider the words of the ROMI Act, the scheme of the Act and its legislative history to assess whether in this case there is a clear Parliamentary intention, whether by express words or necessary implication, as to retrospectivity.54
Words of the Act
[77] In D (SC 31/2019) v New Zealand Police the Supreme Court concluded there was no dispute that the Registration Act applied retrospectively to one class of offenders, by virtue of sch 1 cl 1 of the Registration Act. Clause 1 provided:55
1 Retrospective application
(1)This Act applies to registrable offenders who, on the date this Act comes into force, are, in respect of a qualifying offence,—
(a)serving, in custody, the sentence of imprisonment that was imposed for that offence; or
(b)serving, on parole or other form of conditional release from custody, the sentence of imprisonment that was imposed for that offence; or
(c)subject to an extended supervision order or an interim supervision order following that sentence; or
(d)subject to a public protection order or an interim detention order following that sentence.
[78] That provision can be contrasted with the wording of the ROMI Act which does not expressly state that its provisions will apply in respect of qualifying offences committed, and for which sentence was imposed, prior to enactment of the Act.
51 At [80].
52 Glazebrook J expressed a different view: see at [162] and [224]-[233].
53 R v Pora, above n 35, at [112] and [114]-[116].
54 D (SC 31/2019) v New Zealand Police, above n 29, at [81].
55 At [64].
[79] The criteria for determination that a returning offender is a “returning prisoner” do not expressly refer to retrospective application. The criteria are that the person:56
(a)has been convicted in an overseas jurisdiction;
(b)has, in respect of that conviction been sentenced to:
(i)a term of imprisonment of more than 1 year; or
(ii)2 or more terms of imprisonment that are cumulative, the total term of which is more than 1 year; and
(c)is returning or has been returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.
[80]While the s 17 criteria are framed in the past tense (“has been convicted”, “has
… been sentenced”, “has been returned”), that alone cannot be sufficiently clear to allow for a person to become subject to the ROMI Act in relation to convictions imposed before the Act came into force.
[81] Counsel for the Commissioner says that the only time limit on the application of s 17 is that determination of someone as a returning prisoner must not be made later than six months after the person’s return to New Zealand (s 17(1)(c)). I do not think it is a necessary implication from the absence of any other time limits that the provision is to have retrospective effect.
[82] I therefore consider whether there are other indicators that signal Parliament’s intention.
Scheme of the Act
[83] The ROMI Act amended the Parole Act to make returning prisoners part of the class of “eligible offenders” for the purposes of the imposition of an Extended
56 ROMI Act, s 17.
Supervision Order (ESO).57 New sub-provisions were inserted in s 107C(1) of the Parole Act as follows:
In this Part, eligible offender means an offender who –
(c)has been convicted of a relevant offence and in respect of that offence has been determined to be a returning prisoner under the Returning Offenders (Management and Information) Act 2015:
(d)is a person to whom subpart 3 of Part 2 of the Returning Offenders (Management and Information) Act 2015 applies.”
[84] Section 107F(1)(d) of the Parole Act (also introduced by the ROMI Act) provides:
The chief executive may apply to the sentencing court for an extended supervision order in respect of an eligible offender, where the offender is a person described in section 107C(1)(c) or (d), at any time before the end of the period for which the offender is subject to release conditions under the Returning Offenders (Management and Information) Act 2015.
[85] Section 107C(2) of the Parole Act specifically states that the section has retrospective application:
… 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.
[86] Counsel for the Commissioner says the ROMI Act is clearly intended to be read in a way that is consistent with the provisions of the Parole Act, relying for that submission on ss 107C(2) and 4(2) of the ROMI Act. Section 4(2) provides:
(2)In this Act, unless the context otherwise requires, a term that is used but not defined, but that is defined in the Parole Act, has the same meaning as in that Act.
[87] The Commissioner says it would be anomalous if a person could not be designated a returning prisoner under the ROMI Act, in respect of a conviction that occurred prior to 2015, but could potentially be subject to an ESO in respect of the same offending.
57 Subpart 4.
[88] First, I note that the question of whether the ROMI Act can retrospectively apply is not a matter of definition, in terms of s 4.
[89] Second, the amendments to the Parole Act introduced by the ROMI Act address the possibility that a returning prisoner could, at some time in the future, be made subject to an ESO. But that begs the prior question of whether the person has been properly determined to be a “returning prisoner” for the purposes of the ROMI Act. Section 107C(1) of the Parole Act addresses who may be an “eligible offender” for the purposes of an ESO. Subsection (2) does not extend the categories of eligible offender, but simply clarifies that if a person falls within one of the categories of eligible offender, it does not matter that the relevant offence, conviction, or imposition of release conditions was before Part 1A of the Parole Act came into force. In any event, s 107C(2) predates the ROMI Act.58
[90] In D (SC 31/2019) v New Zealand Police the Supreme Court noted that the Registration Act is clearly retrospective in relation to some categories of offenders and that might therefore be seen as supporting the argument that it also has retrospective application to offenders convicted and sentenced after the commencement date for an offence committed before that date. As the Court noted:59
That would bring a coherence and consistency to the retrospectivity provisions. It would also reflect what appears to have been the parliamentary intention, as disclosed in the responsible Minister’s speech referred to earlier and in the speeches made during the passing of the Amendment Act.
[91]The Court then went on to say:60
But the question we must answer is whether Parliament has signalled, by express words or necessary implication, that the presumption that criminal penalties are not imposed retrospectively has been displaced. We see nothing in s 9 that gives that indication. As Lord Nicholls said in B (A Minor) v Director of Public Prosecutions,61 ‘clumsy parliamentary drafting is an insecure basis for finding a necessary implication elsewhere, even in the same statute’.
58 Section 107C(2) of the Parole Act was first inserted on 8 July 2004 by s 11 of the Parole (Extended Supervision) Amendment Act 2004. The current version of s 107C(2) was inserted on 12 December 2014.
59 D (SC 31/2019) v New Zealand Police, above n 29, at [81].
60 At [81].61 B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 (HL) at 466.
[92] In conclusion, subss 107C(1)(c) and (2) of the Parole Act do not provide a “clear legislative intent” that a returning offender, who had committed and been convicted of and sentenced for a relevant offence before the ROMI Act came into force, could be determined to be a returning prisoner under the ROMI Act.
Legislative history
[93] The ROMI Bill was introduced on 17 November 2015. In her speech on the introduction of the Bill, the responsible Minister, the Hon Amy Adams, observed that the Bill was drafted, consulted on, and approved by Cabinet in just 12 working days. “The quick turn-round demonstrates the Government’s urgency and commitment to protecting New Zealanders.”62 The Bill went through all stages under urgency; it did not go to select committee. The Bill received Royal assent and took effect on 18 November 2015.
[94] The Minister addressed the urgency of the situation in her introduction speech, noting that in late December 2014 Australia had made changes to its immigration laws. The Minister said “… in February of this year it became clear to me that there was the potential for a greater number of New Zealand-born offenders to be deported back home.”63 The Minister went on to say:64
It is critical that we have in place a regime that can manage and supervise the offenders who do return, many of whom have been convicted of serious offences. The proposed supervision regime as set out in this bill will mean that offenders who arrive in New Zealand shortly after being released from prison will be subject to the same sort of oversight as offenders who have served a similar sentence here. The proposed regime in the bill will apply automatically to returning offenders who are sentenced to more than 1 year in prison in another country, who return to New Zealand within 6 months of their release from custody overseas, and who were imprisoned for behaviour that would be an imprisonable offence under New Zealand law.
[95] Other Members referred to the imminent arrival of New Zealanders being deported from Australia and the consequent urgent need for the legislation to be in place.
62 (17 November 2015) 710 NZPD (First Reading, Amy Adams).
63 (17 November 2015) 710 NZPD (First Reading, Amy Adams).
64 (17 November 2015) 710 NZPD (First Reading, Amy Adams).
[96] While it is clear that the Parliament saw an urgent need to enact legislation that would provide a framework for managing returning offenders, the question of retrospective application of the legislation was not directly addressed in the House.
[97] As already noted,65 the Attorney-General’s s 7 report to the House addressed s 26 of the Bill of Rights by finding that none of the conditions that could be imposed on returning offenders had a punitive character and could only be imposed by a Court.66
[98] I surmise that it was because of the conclusion that standard and special conditions do not have a punitive character, that the s 7 report did not go on to consider s 25(g) of the Bill of Rights or s 6 of the Sentencing Act.
[99] The Regulatory Impact Statement addresses retrospectivity by reference to s 7 of the Interpretation Act 1999 and only to the extent that it assumes that the legislation would only apply to people returning to New Zealand after the legislation came into force, with the expectation that the Bill would not be introduced to Parliament until early 2016.
[100] On the statutory review of the ROMI Act, under s 37, the Justice Committee’s September 2019 report to the House discusses the issues raised by the New Zealand Law Society (NZLS) in its submission, including that the ROMI Act breaches the protections against retroactive penalties and double jeopardy.67 The Committee repeats the Attorney-General’s view, expressed in the s 7 report, where the Attorney- General said that the conditions imposed on returning prisoners did not have a punitive effect. The Committee was satisfied with that analysis, noting “we acknowledge that a main purpose of the supervision regime is to reduce the likelihood of a returning offender committing an offence after their return to New Zealand.” The Committee did not recommend any change to the Act in this respect.
65 At [65] above.
66 The s 7 report, above n 38, at [20].
67 Justice Committee Review of the operation of the Returning Offenders (Management and Information) Act 2015 (September 2019) at 3-7.
[101] I conclude that the Determination amounts to a punishment, with retrospective effect. There is no clear parliamentary purpose that s 17 should have retrospective effect. In those circumstances, the common law presumption against retrospectivity, and s 6 of the Sentencing Act and s 25(g) of the Bill of Rights, to the extent they are applicable, mean that the s 17 of the ROMI Act does not apply to G.68 As the Supreme Court said in D (SC 31/2019) v New Zealand Police,69 s 25(g) of the Bill of Rights and the principle of legality support that view.
[102]The Determination is quashed.
[103] That is sufficient to resolve G’s application in relation to the first four causes of action, but having heard full argument, I go on to consider the other grounds of review which G advanced.
Double jeopardy
[104] G submits that, in addition to amounting to retrospective punishment, his determination as a returning prisoner also amounts to double jeopardy, in terms of s 26(2) of the Bill of Rights.
[105] G says that at the time of the determination that he was a returning prisoner he had served his sentence in Australia for the qualifying offence. The consequences that flow from determination as a returning prisoner amount to the imposition of a further penalty, in New Zealand, for the same conduct for which he was convicted and had served his sentence in Australia. It therefore amounts to double jeopardy, in breach of s 26(2) of the Bill of Rights, in addition to amounting to retrospective punishment.
[106] The Commissioner does not accept any special conditions under the ROMI Act amount to punishment, and therefore says no question of double jeopardy arises.
[107] The Attorney-General’s s 7 report said that the Bill does not create double jeopardy through the imposition of standard and special conditions under the
68 Those returning prisoners who committed and were sentenced for a qualifying offence before the ROMI Act came into force will be similarly affected.
69 Above n 29, at [82].
Parole Act, because none of those conditions have a punitive character (the aim of the conditions being rehabilitation).70 The basis for the Attorney-General’s conclusion is that the ROMI regime is a civil framework. As discussed at [71] above, the legislative labelling of a sanction as “civil” is not determinative of its status, including for double jeopardy purposes. Where a proceeding, although classed as civil, in fact has potential consequences including the stigma inherent in a determination of criminal wrongdoing and the deprivation of liberty, it will be regarded as criminal for double jeopardy purposes.71
[108] I have already concluded that the s 17 determination under the ROMI Act is punitive.72 It is the Australian offending, and only that offending, which provides the basis for the Determination and thus the second, New Zealand, punishment.
[109] In Khean v Police Simon France J (in obiter comments) concluded that mandatory confiscation of a motor vehicle in respect of a new driving offence and a previous driving offence (where that previous offence had been relied upon to order a previous confiscation of a motor vehicle) fell within the protection of s 26(2) of the Bill of Rights.73 Similarly, as discussed above, the Court of Appeal has found that the application of extended supervision orders may also amount to further punishment, for the purposes of s 26(2).
[110] In Chisnall v Attorney-General, a Full Bench of the Court of Appeal held that ESOs under the Parole Act and PPOs under the Public Safety (Public Protection Orders) Act 2014 were inconsistent with the right to immunity from a second penalty under s 26(2) of the Bill of Rights.74 The Court observed, that the restrictions applied by the ESO and PPO regimes are “… potentially very severe and in the case of PPOs can amount to indefinite detention”.75 The Court held that they constituted punishment in the absence of trial and conviction for a further offence and thus are a “… marked
70 The s 7 report, above n 38.
71 Breed v Jones 421 US 519 (1975); Zolotukhin v Russia (2009) 26 BHRC 485 (ECtHR, GC); and see Butler and Butler, above n 30.
72 Above at [73].
73 Khean v Police HC Dunedin CRI-2007-412-58, 28 November 2007 at [18].
74 Chisnall v Attorney-General, above n 44.
75 At [218].
departure from the legal order reflected in s 26(2) of the Bill of Rights Act”.76 The Court also observed that, while the right is not absolute, its fundamental importance will require that any limitation of the provisions of s 26(2) will require a strong justification.77
[111] I conclude that the Determination in relation to G does amount to a breach of s 26(2) of the Bill of Rights.
Improper delegation
[112]G asserts improper delegation of the s 17 determination exercise.
[113] The Acting Sergeant, who was the Criminal Deportee Coordinator, reviewed the relevant documents received by Interpol from the Australian Border Operations Centre (ABOC) in relation to G’s deportation from Australia. The Acting Sergeant determined that G fulfilled the criteria under s 17 and drafted the Determination Notice.
[114] The Inspector, who was the Manager of Interpol and the Police Liaison Officers Desk, then reviewed the Determination and signed the original on 26 September 2019. The Inspector’s evidence is that he was satisfied that the s 17 criteria were met.
Discussion
[115] The Commissioner may, as he or she thinks fit, delegate his or her powers, functions or duties to any person.78 Sub-delegation of those powers is also permitted, with the prior written approval of the Commissioner,79 and any person purporting to act under delegation is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.80
76 At [218].
77 At [190].
78 Policing Act, s 17.
79 Section 17(3).
80 Section 17(4).
[116] I am satisfied from the evidence that the Inspector had delegated authority from the Commissioner to perform the relevant functions under the ROMI Act, including to determine whether someone is a returning prisoner, and that he reviewed the relevant material and satisfied himself that the s 17 criteria were met before signing the Determination Notice.
Right to be heard in relation to s 17 determination and propriety of the overseas conviction
[117] G says that, in order to be satisfied as to the s 17(1)(a) criteria, it was not sufficient for the Commissioner to simply check the New Zealand statute book and determine whether the conduct for which G was convicted in Australia would amount to an imprisonable offence in New Zealand. Rather, the Commissioner was required to go behind the face of the overseas conviction and determine whether or not G was in fact guilty of the conduct for which he was convicted in Australia.
[118] Consistent with s 27(1) of the Bill of Rights, that determination required that the Commissioner give G an opportunity to be heard before making a decision under s 17. The right to be heard necessarily arises at the point when the Commissioner is making a determination under s 17, rather than at the stage of a s 22 review of the determination, which is a “factual enquiry only”.81 G also notes the difficulties inherent in a s 22 application for review, which must be made within 15 working days after service on the returning prisoner of the Determination Notice, in the context of a newly-returned person who likely does not have access to legal advice.
[119] In essence, G’s case is that he was wrongly convicted in Australia of offending involving ecstasy and nexus. He says he was dealing in steroids. G also contends that there had been interference with the evidence and there were issues of police corruption, and planting of evidence, in relation to the charges against him. The upshot, G says, is that the conduct he did engage in, in Australia, did not constitute the offence for which he was convicted, so as to be transposed to a corresponding offence in New Zealand under the Misuse of Drugs Act 1975.
81 ROMI Act, s 22(3).
[120] In relation to the requirement at s 17(1)(a) – conviction for an offence that constitutes an imprisonable offence in New Zealand – G says that the qualifying conviction for an offence in the overseas jurisdiction rests on “conduct” that constitutes an imprisonable offence in New Zealand. It is that conduct that must be made out.
[121] G says that it is clear that the Commissioner (or the Inspector who was his delegate) did not have regard to the totality of the material made available to him by the Australian authorities in making the determination under s 17(1) of the ROMI Act. G says that if he had been given a hearing, he would have advised the Commissioner that he had pleaded not guilty to the offending for which he was charged in Australia (as recorded in the sentencing remarks) and would have proffered a covert recording, which would have demonstrated that the conviction was tainted and unsafe. On G’s analysis, the requisite “conduct” would not have been made out.
[122] G relies on academic commentary in support of his submission that the Act requires a mechanism to confirm the validity of overseas convictions.82 The risks of presuming all overseas convictions are properly obtained are illustrated by the following situations:
(a)Although a person has been convicted overseas, the evidence would be insufficient to support a conviction in New Zealand.
(b)The conviction was the result of trial procedure that would be inadequate in New Zealand and did not meet the procedural standards contained in s 25 of the Bill of Rights.
(c)The overseas provisions for a defence (e.g. self-defence) are stricter than those contained in New Zealand law and the person might have had a defence under the New Zealand provisions. The same issue might
82 Kris Gledhill “Legislation Note: The Returning Offenders (Management and Information Act) 2015” [2016] NZCLR 19; Claudia McHardy “Assuming Risk: New Zealand’s Returning Offenders Act 2015”; and New Zealand Law Society (NZLS) (2018) Submission on Statutory review of the Returning Offenders (Management and Information) Act 2015.
arise in relation to the provisions relating to a mental disorder and a person’s fitness to stand trial.
(d)The person was under the New Zealand age of criminal responsibility at the time of the offending, but old enough to be tried and convicted in the overseas jurisdiction.
(e)The overseas conviction was entered in a country that is notorious for the corruption of its police officers or the inadequacy of its court system or where the conviction arose through a trial process that does not meet the standards of the Bill of Rights Act (e.g. adverse inferences from silence, inadequate legal aid or representation).
[123] The Commissioner’s response is that G was convicted of supplying approximately 1,500 grams of ecstasy and 800 grams of “Nexus” to a co-defendant. In New Zealand supplying ecstasy is contrary to s 6(1)(c) of the Misuse of Drugs Act, which attracts a maximum penalty of 14 years’ imprisonment. There is no ability or obligation to go behind the wording of s 17(1)(a). The “conduct” in question is not that accepted by G; rather, it relates to the conduct which constitutes the relevant offence and upon which the conviction was entered. The requirement at [125] below is therefore satisfied.
[124] The respondents do not dispute that G was not given an opportunity to make representations to the Commissioner at any point prior to the determination decision being made. They say that there is no right to a hearing and no ability or obligation to go behind the wording of s 17(1)(a).
Discussion
[125] The criteria for a determination that a returning offender is a “returning prisoner” are that the person:83
(a)has been convicted in an overseas jurisdiction;
83 ROMI Act, s 17.
(b)has, in respect of that conviction been sentenced to:
(i)a term of imprisonment of more than 1 year; or
(ii)2 or more terms of imprisonment that are cumulative, the total term of which is more than 1 year; and
(c)is returning or has been returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.
[126] Section 17 says that the Commissioner “must” make a determination if “satisfied” that criteria are met. As detailed above a determination under s 17 has significant consequences.
[127] A determination can be challenged in a number of ways: by judicial review, as in this proceeding; through the s 22 right of review;84 through the court process where special conditions are sought or the imposition of an ESO or PPO is sought. But the Act provides no mechanism for a person to challenge whether the overseas conviction is valid and properly obtained. On the face of the ROMI Act all overseas convictions are presumed to be properly obtained.85
[128] The NZLS submission to the Justice Committee on the statutory review of the ROMI Act contrasted the approach in the ROMI Act with the extradition context, where the New Zealand courts will investigate the adequacy of the evidence in some situations when the person is accused of an offence.86 The NZLS submission noted that the ROMI Act contained no equivalent statutory language and recommended the introduction of a mechanism for challenging the validity of an overseas conviction.
84 An application for review under s 22 must be made within 15 working days after service on the prisoner of the determination notice (s 22(2)). In practice a review requires legal aid and, while returnees are eligible for legal aid, they often do not take it up: Claudia McHardy “Punishment on arrival: New Zealand’s Returning Offenders Act 2015” 24(4) Punishment & Society 622. The review is limited to a factual inquiry only (s 22(3)).
85 Gledhill, above n 82, at 23-24; and McHardy, Assuming Risk, above n 82, at 30–31.
86 Extradition Act 1999, s 24.
[129] The Committee Report to the House in September 2019 discusses the issues raised by the NZLS and, in relation to the validity of overseas convictions, said:87
We do not believe it is necessary to provide for the challenge of an overseas conviction. Most returning offenders were convicted in Australia and, although there are some differences, the criminal law in Australia is similar to New Zealand’s in terms of evidential requirements and criminal procedure.
[130] The Committee made only one recommendation for change to the Act, which was that the Government consider amending s 17 to specifically provide for a determination to be revoked where there is a change in the relevant circumstances of the returning offender.
[131] I conclude that s 17(1)(a) is predicated on the fact that the overseas conviction is valid and properly obtained. The ROMI Act does not provide any framework through which the validity of a conviction in an overseas jurisdiction may be challenged. The “conduct” is the conduct which constitutes the relevant offence and on which the conviction was entered. The relevant question is whether the “conduct” which constituted the relevant offence in the overseas jurisdiction (e.g. supplying a prohibited drug) is also conduct constituting an imprisonable offence in New Zealand. The focus is on the statutory offence, not on the specific conduct of the person concerned. Here, the conduct for which G was convicted in Australia was also an offence under the Misuse of Drugs Act.
[132] That conclusion may well reflect, as the NZLS, Professor Gledhill and Ms McHardy suggest, a deficiency in the way the Act is currently drafted. The Justice Committee appears not to have directly addressed the nub of the legal issue when it concluded that, because most of those who will be subject to the ROMI Act are returning from Australia – a legal jurisdiction similar to New Zealand – such issues are unlikely to arise. Nevertheless, as the ROMI Act stands the Commissioner is not required to – nor is there any mechanism by which the Commissioner could – investigate the propriety of the overseas conviction.
87 Justice Committee Review of the operation of the Returning Offenders (Management and Information) Act 2015 (September 2019).
[133] The s 22 review mechanism may be appropriate for other, discrete factual issues such as whether in fact the person had been convicted overseas, the length of sentence imposed, and whether they were returned to New Zealand within six months of release from custody overseas.
[134] G also argues that he had a right to be heard before a determination was made under s 17. Section 27(1) of the Bill of Rights provides:
27 Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
…
[135] The term “public authority” is to be given a wide meaning,88 and it is plain that, in making the s 17 determination, the Commissioner was acting as a public authority.
[136]Section 27(1) is not limited to determinations of an adjudicative character.89
[137] The consequence of a s 17 determination that a person is a returning prisoner is that they become subject to parole release conditions (including the possibility of imprisonment for breach), and possibly subject to an ESO or a PPO. In addition, as in S v Commissioner of Police, there are likely collateral consequences, legal and professional, flowing from a determination.90
[138] In G’s case, he is currently undertaking tertiary study with a view to entering a regulated profession. He says that the Determination that he is a returning prisoner has the potential to not only affect his reputation in the profession but also to jeopardise his entry into the profession altogether, with the possible result that he may not be able to undertake professional work in the area for which he is gaining a qualification.
88 S v Commissioner of Police [2021] NZHC 743, at [72].
89 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56, at [17]-[18].
90 S v Commissioner of Police, above n 88, at [76].
[139] I conclude that s 27(1) of the Bill of Rights was applicable when the Commissioner made the s 17 determination in respect of G. As the Court of Appeal said in Combined Beneficiaries Union,91 the two key principles of natural justice are that the parties be given adequate notice and opportunity to be heard (audi alterm partem) and that the decision-maker be disinterested and unbiased (nemo debet esse in propria sua causa). In this context that right required, at a minimum, that G ought to have been provided with an opportunity to be heard regarding the possibility of a s 17 determination.92
[140] It is common ground that G was not advised of the possibility of a determination or given a hearing before the determination was made. G’s right to a hearing, under s 27(1) of the Bill of Rights, was therefore breached.
[141] Having made that finding, there is a question of what was the practical effect of the breach. Given my finding that there is no requirement in the ROMI Act for the Commissioner to go behind the qualifying overseas conviction, a hearing – if it had been provided – would not have served the purpose G contended for (that is, to argue what constituted his actual “conduct”). In any event, I did not receive submissions as to the appropriate relief for a failure to provide a hearing. In addition, I apprehend that the Attorney-General would wish to be heard on that question.
Release conditions in breach of Bill of Rights
[142] As I understand G’s case, he makes three points in relation to the release conditions. First, he says that the legislation is being improperly applied in that special release conditions are imposed (and were imposed on him) on the basis of assumed risk, rather than actual risk. Second, the determination and consequent imposition of conditions amounts to a retrospective application of a penalty. That submission is considered at [43] – [102] above. Third, G says that the conditions are in breach of s 9 of the Bill of Rights, regardless of the retrospectivity argument. G says that the reporting obligations he was subject to were akin to a sentence of intensive supervision
91 Combined Beneficiaries Union Inc v Auckland City COGS Committee, above n 89, at [11].
92 Butler and Butler, above n 30, at [25.2.16]; and see also Combined Beneficiaries Union Inc v Auckland City COGS Committee, above n 89, at [11].
and went much further than warranted by the imposition of special conditions. He says the onerous reporting obligations amounted to degrading punishment.
Imposition of special conditions on basis of assumed risk
[143] As Judge CN Tuohy noted, in considering the application for special conditions in respect of G, the Court must be satisfied that any special condition is both rationally connected to at least one of the three factors set out in s 26(3) and involves only necessary and reasonable restrictions on the rights guaranteed by the Bill of Rights,93 and the approach must be case-specific – the Court must focus on the particular respondent and the particular circumstances of his or her case.94 This reflects the expectation at the time the ROMI Act was enacted.
[144] Notwithstanding that, G says that special conditions are sought by the Chief Executive in relation to all returning offenders. While District Court Judge Tuohy said there cannot be blanket special conditions, he amended only the second condition sought in relation to G. And, to date, special release conditions have (almost) always been imposed on those designated returning prisoners.95 G also says that in only five cases has the District Court rejected proposed special conditions. In his submission this is an improper application of the legislation as the conditions are being imposed on the basis of the fact of conviction (and possibly the Judge’s notes from the foreign jurisdiction) – i.e. assumed risk – but with no risk profile or adequate assessment of risk in relation to the particular individual. Thus, an individual is being punished on the basis of assumed risk.
[145] The Attorney-General’s s 7 report and the Regulatory Impact Statement describe the discretionary nature of the imposition of special conditions. The s 7 report makes the point that the power to impose special conditions is limited by the Court’s discretion and by the legislative purposes, thus providing adequate safeguards against the infringement of an offender’s rights.96 Similarly, the Regulatory Impact Statement
93 Chief Executive of the Departments of Corrections v G, above n 3, at [26].
94 At [27].
95 Ministry of Justice (2017) Ministry of Justice submission to the Statutory Review of the Returning Offenders (Management and Information) Act 2015, 4 July 2017 at [69].
96 The s 7 report, above n 38, at [18]-[19].
warns of the risk of treating all deportees as a “homogenous group”, instead describing the beneficial potential of allowing the imposition of special conditions as needed.97
[146] However, it appears the ROMI Act has functioned in a more restrictive manner than envisaged and “outside the Attorney-General’s assessment of what would be a justified limitation on fundamental rights and freedoms”.98 According to one commentator, instead of requiring a high threshold for the imposition of special conditions, they have been imposed in a precautionary manner based on the absence of a risk profile.99
[147] Although the statistics and commentary on the imposition of special conditions are striking, I did not have sufficient information before me to reach any conclusions as to G’s general submission regarding application of the Act in this respect, or whether in his own case there was any breach of the ROMI Act or G’s Bill of Rights rights.
Release conditions a breach of Bill of Rights
[148] As a result of the Commissioner’s determination that G was a returning prisoner, he became subject to interim and special release conditions under the Parole Act. G says those conditions limited or deprived him of the exercise of his rights under the Bill of Rights. He also pleads that it had the effect of damaging his reputation and earning capacity and imposing other adverse consequences on him. He seeks Baigent compensation of $500,000.
[149] To consider this claim it is necessary to determine which rights are affected by the making of a determination and consequent imposition of standard and special release conditions.
[150] G argued that the effect of the Determination was to abridge his rights to freedom of movement (s 18), against unreasonable search and seizure (s 21), liberty
97 RIS, above n 22, at [64]-[65].
98 New Zealand Law Society (NZLS) (2018) Statutory review of the Returning Offenders (Management and Information) Act 2015.
99 McHardy, Assuming Risk, above n 82, at 629.
of the person (s 22), retroactive penalty and double penalty (considered separately under the headings “Retrospective application of a penalty” and “Double jeopardy” above), right to justice (s 27) (considered under heading “Right to be heard in relation to s 17 determination and propriety of conviction” above) and other rights and freedoms (s 28).
[151] In relation to freedom of movement, the standard and special release conditions require the returning prisoner to seek prior written consent of the probation officer before moving to a new residential address and not to reside at any other address; it also restricts overseas travel without the prior written consent of a probation officer. In G’s case the standard and interim special conditions required G to reside at an address as directed by a probation officer and not to move from that address without prior written approval and prohibited G from travelling overseas without the prior written consent of a probation officer. I accept this is a restraint on the exercise of freedom of movement.
[152] The standard and special conditions also affect the right to privacy. As the Supreme Court observed in D (SC 31/2019) v New Zealand Police,100 although the right to privacy is not protected by the Bill of Rights, an intrusion on the right is a relevant consideration (there, in the context of the s 9 Registration Act exercise). While the information collected is not publicly available, the requirement on G to provide identifying details, bodily samples and biometric information is a significant intrusion on his privacy.101
[153] The collection of bodily samples and biometric information also amounts to a breach of G’s right to be free from unreasonable search and seizure.102
Conclusion
[154] I find that the Determination did breach G’s Bill of Rights rights in the respects set out above.
100 D (SC 31/2019) v New Zealand Police, above n 29, at [92].
101 As required by ROMI Act, s 14 and Criminal Investigations (Bodily Samples) Act 1995, as discussed above at [19(c)] and [24]-[25].
102 R v Shaheed [2002] 2 NZLR 377 (CA); and R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.
[155] I did not receive specific evidence from G relating to the extent and effect of the Bill of Rights infringements. Nor did I hear submissions on G’s claim for damages in respect of any Bill of Rights breaches. A further hearing will be required if G wishes to pursue a claim for damages and I expect that the Attorney-General would wish to be represented at that hearing.
Relief
[156]I make the following orders:
(a)A declaration that the decision made by the first respondent on or about 26 September 2019 to determine that G was a returning prisoner under s 17 and recorded in the Determination Notice issued under s 19 of the Returning Offenders (Management and Information) Act 2015 is unlawful.
(b)An order quashing the decision made by the first respondent on or about 26 September 2019 to determine that G was a returning prisoner under s 17 of the Returning Offenders (Management and Information) Act 2015.
(c)An order directing the first respondent to forthwith remove all reference to the determination having been made and the Determination Notice having been issued from the Police NIA database.
(d)An order directing the first respondent to forthwith remove G’s fingerprints from the national fingerprint database, Automated Biometric Information System (ABIS); remove G’s photographs from the IMS Photo Manager database; and remove G’s DNA from the national DNA database.
(e)An order directing the second respondent to forthwith remove all reference to the determination having been made from the Department of Corrections Returning Offender team’s internal spreadsheet of Returning Offenders.
Costs
[157] I have upheld four grounds of review. In the normal course G, as the successful party, would be entitled to costs. However, G represented himself in this proceeding and lay litigants cannot obtain an award of costs.103 They are, however, entitled to “reasonable disbursements” in the discretion of the Court, and the Court should apply a “reasonably liberal approach”.104 I expect the parties to be able to agree the level of disbursements. If not, they should file brief memoranda addressing the issue by
5.00 pm, Wednesday 15 February 2023.
Name suppression
[158] On 12 August 2021 I made an interim order suppressing the name and any identifying particulars of G, pending further order of the Court. That order was continued by Ellis J on 13 September 2021 and I continue it in the interim.
[159] I anticipate that this is a situation where permanent name suppression may be appropriate. I invite the parties to file any memoranda on that question by 5.00 pm Wednesday 15 February 2023.
Gwyn J
Solicitors:
Luke Cunningham Clere, Wellington Crown Law, Wellington
103 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.
104 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441–442, applied in Buchanan Construction Ltd v Watson [2020] NZHC 1537 at [7].
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