Returning Offenders (Management and Information) Act 2015 – retrospective penalty – judicial review – statutory power of decision – jurisdiction – administrative law – New Zealand Bill of Rights Act 1990
Commissioner of Police v G [2023] NZCA 93 per Cooper P, Miller and Courtney JJ
G is a New Zealand citizen who was living in Australia when convicted of drug-related offending. He was convicted and sentenced prior to the enactment of the Returning Offenders (Management and Information) Act 2015 (ROMI Act). As a result of his conviction and before serving the entirety of his sentence, G was deported back to New Zealand on 19 October 2019.
The Commissioner of Police determined that G was a returning prisoner for the purposes of the ROMI Act. Consequently, G was automatically subject to standard release conditions and was faced with an application to impose interim special conditions on him. G challenged the commissioner’s determination and the process followed in making it.
High Court decision
G pleaded five causes of actions in the High Court, four of which are based on his suggestion that the ROMI Act should not carry retrospective effect and, as his conviction and sentence preceded the Act, he was not a person to whom it applied. The fifth cause of action alleged the standard and special release conditions imposed on him breached his rights under the Bill of Rights Act (NZBORA), including ss 18 (freedom of movement), 21 (security against unreasonable search and seizure) and 22 (liberty of the person).
The High Court judge found the commissioner’s determination constituted a retrospective penalty and was a second punishment, imposed in New Zealand, predicated on G’s Australian conviction. She considered the language of the ROMI Act was insufficiently clear to give it retrospective effect and quashed the determination. She also upheld G’s argument that he had a right to be heard before the determination was made and that the determination breached a number of G’s other rights under the NZBORA.
The appeal
The issues which arose in the appeal were whether:
- the determination should be considered an imposition of a penalty;
- the determination amounted to the imposition of a second punishment;
- there was clear legislative intent that the ROMI Act should have a retrospective effect;
- the commissioner was obliged to give G an opportunity to be heard before making the determination; and
- whether the release conditions imposed on G unjustifiably breached his rights under NZBORA.
Decision
The Court of Appeal found the determination did lead to the imposition of restrictions in the nature of a penalty but concluded there was no increased or second punishment as the restrictions are in substitution for release conditions that would have been in effect overseas in any event.
On an interpretation of the statutory language and the background under which the ROMI Act was passed – under urgency, in anticipation that deportees from Australia to New Zealand would increase – the court considered it was clear that parliamentary intent was that the ROMI Act applied to all returning prisoners from the date of its enactment, regardless of when they were convicted and sentenced overseas. The alternative interpretation would mean delaying the ROMI Act’s operation for a considerable period of time.
On the fourth issue, the court held that the ROMI Act regime sufficiently protects the right to natural justice by providing for the making of an application to review the determination and preserving the right to judicial review. Finally, it found that, on a proper construction of the Act, the relevant breaches of rights would not have been unjustified.
Applicable principles – use of parliamentary materials to ascertain legislative intention – presumption against retrospectivity displaced where legislation sufficiently clear – penalty need not involve goals of retribution and denunciation – release conditions not a second penalty – natural justice does not always require a hearing before the decision
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