Judge Cheryl Gwyn has delivered the ruling that may have consequences for the other 501 deportees. Photo: NZ Herald/ Mark Mitchell
The High Court has delivered a bombshell decision on a 501 former drug dealer deported from Australia, who has successfully challenged the government's authority to impose special conditions upon his return to New Zealand.
It is a decision that will force Parliament to clarify the law and/or appeal against the decision because it could have implications for many of the other 501 former prisoners.
Judge Cheryl Gwyn has declared that such special conditions, including residing at a particular address, supplying fingerprints and DNA, and attending a rehabilitative assessment or treatment programme, amounted to a penalty beyond what he had served in Australia and therefore double jeopardy - contrary to the New Zealand Bill of Rights Act.
And she has accepted the former prisoner's claim that the law was a retrospective punishment on the grounds that the new "punishment" in New Zealand took effect after he had served time for his crime.
The former prisoner, known only as G, committed his crime in 2012, was convicted in 2014 and was deported to New Zealand in 2019.
The judge implied that unless Parliament had specifically stated it wanted a retrospective law, she would rely on the common law principle of retrospective penalties not applying.
The law was brought in in 2015 in response to a large number of deportations by the Australian government of former prisoners. Nearly 3000 have been deported and the majority have reoffended and some are deeply involved in organised crime.
The police told the court it was very clear that the law was intended to apply to people who had committed crime before the law, the Returning Offenders (Management and Information) Act took effect, in November 2015. Otherwise it would have applied to no one for quite a while.
The judge quashed the original decision by New Zealand authorities to class the former prisoner as a returning prisoner under the Returning Offenders (Management and Information) Act 2015.
She ordered the police to remove his fingerprints from the national fingerprint database, remove his photograph from its database and remove his DNA from the national DNA database.
And she granted the applicant name suppression and said it was likely to become permanent.
The government is not commenting at present. Cabinet has held its last meeting of the year and it will not meet again until 24 January. Parliament does not resume until 14 February.
But a police spokesman said police were aware of the judgment.
"Police are considering the implications of the judgment alongside Ara Poutama Aotearoa - Department of Corrections and are consulting with Crown Law."
The Returning Offenders (Management and Information) Act was passed under urgency in 2015 with the support of all parliamentary parties at the time, except the Green Party which abstained.
Under the law, the chief executive of Corrections may apply to the district court for special conditions on a returning offender or returning prisoner.
Returning offenders may be required within six months of their return to New Zealand to provide "identifying particulars" - including photographs and fingerprints - similar to those that may be taken from people in police custody.
Amy Adams Photo: RNZ / Rebekah Parsons-King
The justice minister at the time, Amy Adams, shepherded the bill through Parliament.
She said serious offenders - murderers, rapists, child sex offenders, drug offenders, violent offenders, the full category - had been coming back to New Zealand for many years without oversight, without supervision. The bill did not go to select committee. But a subsequent review of the act, by the Justice Committee, explicitly heard submissions about retrospectivity and explicitly dismissed them.
Gwyn has dismissed that consideration by Parliament in terms of her decision on retrospectivity.
The Attorney-General at the time, Christopher Finlayson, in a Bill of Rights report to the House said that none of the conditions that could be imposed on returning offenders had a punitive character, in contradiction to Gwyn's more recent assessment.
The government has strongly objected to Australia's deportation of people who were principally raised in Australia but has defended its rights to deport serious offenders back to New Zealand. G appears to fall into both categories.
Background on 'G' and his case
The judgment provided the following background on "G" and his case: "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. 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. 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. 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.
"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 s19 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 might 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.
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:
- To reside at an address as directed by a probation officer and not to move from that address without prior written approval
- To attend and engage in a rehabilitative assessment and any subsequent recommended treatment or programme, as directed
- Not to possess, use or consume controlled drugs and/or psychoactive substances, except controlled drugs prescribed for him by a health professional
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.
On 19 November 2019 the chief executive of Corrections 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 s26 of the ROMI Act.
The conditions were:
- To undertake any counselling or programme as directed by the probation officer with the agreement of G.
- Not to possess, use or consume controlled drugs and/or psychoactive substances, except controlled drugs prescribed by a health professional.
The standard conditions and the two special conditions expired on 9 October 2021.
*This story was first published by the New Zealand Herald.