Crown appeals 501 deportee’s court win over returning prisoner legislation

The case was heard in the Court of Appeal in Wellington today. Photo / Mark Mitchell

A 501 deportee who won a High Court fight to prove his human rights had been breached on return to New Zealand now has his case back in court.

The Crown is appealing a High Court decision that the deportee from Australia had his rights breached, with conditions imposed on his return to the country acting as a type of second punishment for his offending.

The case relates to a man who was convicted of drug dealing offences and deported from Australia as a 501.

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 man earlier told the High Court he should not have been labelled a returning prisoner when he came back to New Zealand, as this meant he had to be subjected to parole-like conditions despite having already served his sentence.

He had to give police his fingerprints and was told where he was allowed to live.

In the earlier High Court decision, Justice Cheryl Gwyn agreed the returning prisoner status was unlawfully applied to the man, breaching his human rights. She found he had been punished again for offending he had already served time for.

Justice Gwyn ordered the removal of his fingerprints, DNA and photographs from the police database.

She implied unless Parliament had specifically stated it wanted a retrospective law, she would rely on the common law principle of retrospective penalties not applying.

The Crown urgently appealed the decision due to the effect it could have on similar cases.

In the Court of Appeal in Wellington today, Crown lawyer Austin Powell argued the “release conditions” imposed on G were not a penalty, and that it was important for someone who had been in prison to be “gradually” reintroduced to the community.

“If the focus is on the function that release conditions serve . . . it is a regime that the person released from prison must abide by.

“Parliament was legislating to deal with an imminent problem. What had been a relatively manageable number of persons each year was going to turn into a much larger number,” he said.

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.

The name 501 deportee refers to the section of Australia’s Migration Act allowing the country to cancel someone’s visa if they fail a “good character” test.

The controversial legislation means anyone who is not an Australian citizen who is sentenced to 12 months in an Australian prison is subject to deportation, though it can also extend to those without convictions.

This week, Australian Prime Minister Anthony Albanese set out a new policy for 501s, with their time spent living in Australia to now be taken into account when deciding on deportation.

“Where individuals pose a risk to the community, the Australian government will continue to cancel their visas and remove them,” a statement from the Department of Home Affairs said.