Justice Minister Kiri Allan and Prime Minister Jacinda Ardern have both acknowledged today a recent bombshell High Court decision that could have wide-ranging implications on how 501 deportees from Australia are treated upon their return to New Zealand.
Wellington-based Justice Cheryl Gwyn issued a 45-page judgment on Monday in the case of a deported drug dealer identified only as “G”, finding that special conditions put upon him were a violation of the Bill of Rights Act because they amounted to double jeopardy.
Requiring G to reside at a particular address, supply fingerprints and DNA, and attend a rehabilitative assessment or treatment programme equates to a second punishment for a sentence he already served in Australia, the judge found.
In a statement to the Herald today, the Justice Minister took a cautious approach to the decision.
“The Ministry of Justice is aware of the High Court judgment, and is working closely with Police and Corrections to address the legal and operational implications for the management of returning offenders regime,” Allan said in the short statement.
Ardern, who was asked about the decision at the end of a press conference today, also emphasised that the decision will need to be more closely scrutinised before a concrete plan of action is devised. Community safety, she repeated five times while briefly addressing the issue, has always been the main focus of such rules.
“Some individuals are being deported back to New Zealand immediately after exiting prison,” she said. “Now in some circumstances they might otherwise have parole conditions, and so we’ve put in place provisions that we believe were necessary to continue to keep our communities safe.
“The High Court has made its findings. We need to go and look at those, but top of mind will continue to be community safety.”
G, who emigrated to Australia when he was 11 years old after spending just six years of his childhood in New Zealand, was sentenced in 2014 to eight years’ imprisonment with a non-parole period of five years and six months after he was found guilty of two counts of supplying a prohibited drug in large commercial quantities.
He was deported to New Zealand in October 2019 and was served with a notice citing the Returning Offenders (Management and Information) Act 2015 and requiring him to abide by standard release conditions. That same month, Wellington District Court imposed three more interim special conditions: that he live at an address approved by a probation officer, that he attend any recommended treatment programmes and that he not use illegal drugs.
In this week’s court decision, Justice Gwyn quashed G’s designation as a “returning prisoner” and ordered police to remove his fingerprints, photo and DNA from law enforcement databases.
She determined that the conditions amounted to a “retrospective” punishment after he had already served his time. Without Parliament explicitly stating it wanted a retrospective law, the common law principle of retrospective penalties not applying would take precedence, the judge implied.
The law - passed under urgency in 2015 with co-operation from all parliamentary parties except the Greens, who abstained - was in response to the thousands of convicted criminals who have been kicked out of Australia, even though many had lived there since childhood. Nearly 3000 have been deported, with the majority having reoffended.
Former National MP Amy Adams, who was serving as Justice Minister at the time, noted that murderers, rapists, child sex offenders, drug offenders and other violent offenders had been returning to New Zealand for years without oversight.
Ardern today made a similar point.
“What remains a clear focus for us as a Government when we’re dealing with 501 deportations [is] to focus on community safety as we deal with reintegrations,” she said.
“Keep in mind, not everyone who is deported as a 501 do we have any legal grounds to keep - for instance, supervision orders or other restrictions. But there are certain deportees where we believe there have been grounds and we have done that. So we need to go look at what the High Court findings mean for the legal basis of these restrictions.”