The Court of Appeal reversed a High Court decision which found the Police Commissioner's determination that a 501 deportee was a returning prisoner was unlawful. This judgment affirmed Parliament’s intention for the Returning Offenders (Management and Information) Act 2015 to apply retrospectively.
The Returning Offenders (Management and Information) Act 2015 (the ROMI Act) was introduced in 2015 as a response to an increasing number of deportations by the Australian government of former prisoners. This was due to Australia’s controversial ‘501 deportation’ policy which provided for the cancellation or refusal of the visa of any migrant who fails a “good character” test.
G, a New Zealand citizen, was convicted for drug-related offences in Australia before the enactment of the ROMI Act. He was deported back to New Zealand as a 501 deportee before he had served the entirety of his sentence. Before G arrived in New Zealand, the Commissioner of Police determined that he was a returning prisoner for the purposes of the ROMI Act. This determination subjected G to strict, parole-like conditions upon his arrival.
G successfully challenged the Commissioner’s determination in the High Court. The Court found that the determination was unlawful because it amounted to a retrospective imposition of a penalty and double jeopardy, which violated G’s rights under the New Zealand Bill of Rights Act 1990 (BORA). The Court also held that the Commissioner breached BORA by failing to give G an opportunity to be heard before making the determination and by imposing release conditions that violated G’s rights. The consequence of this decision meant that the ROMI Act would not apply retrospectively to deportees returning to New Zealand.
The Commissioner appealed this decision.
The Court of Appeal held that the release conditions authorised by the ROMI Act were in the nature of penalties. However, they disagreed with the High Court and held that the Commissioner’s determination could not be characterised as ’sentencing’ because sentencing is a judicial act. Therefore, the Commissioner did not sentence G to any penalty or any increased penalty with respect to his Australian offending.
The Court then turned to consider whether Parliament intended for the ROMI Act to have a retrospective effect. The Commissioner argued it was clear from the text of the Act, its purpose, and the context in which it was passed that Parliament intended for the Act to apply retrospectively.
The Court of Appeal agreed with the Commissioner and held the language of the ROMI Act was clear and unambiguous in its intention to have retrospective effect. In particular:
“The Court held that referring to the fact a Bill was passed under urgency was a relevant context that could be used to determine Parliament’s intent in passing the ROMI Act. The number of 501 deportees arriving in New Zealand was anticipated to increase and there was a strong public interest to establish appropriate systems to manage the risks returning offenders posed. This was a strong inference that the ROMI Act was intended to have immediate effect upon its enactment, including an intention to have a retrospective application to incoming offenders.
The Court found that the High Court’s narrow interpretation of the Act’s language would defer the operation of the Act and exclude serious offenders who had been convicted before its commencement – an absurd consequence that Parliament could not have intended.
The Court found that the requirement for a select committee to review the operation of the ROMI Act and prepare a report 18 months after its commencement also indicated that the Act was intended to apply retrospectively.”
Parliament had considered the potential implications of the Act applying retrospectively and had decided to proceed with it despite this. The Court held this decision was a clear indication of the legislative intent for the Act to apply to all returning offenders, including G, regardless of when they were convicted and sentenced overseas.
The High Court held that G should have been heard before the determination was made given the serious consequences it subjected him to. As such, his right to natural justice under s 27(1) of BORA had been breached.
The Court of Appeal disagreed. They held the ROMI Act did not require the Commissioner to allow G to be heard before making the determination. It would be impractical and contrary to the Act’s purpose if the Commissioner was required to do so. Furthermore, the Act provided for an appeal process that allowed G to challenge the determination if he wished to do so. The Act also preserved the right to apply for judicial review. Thus, G’s right to natural justice was not lost.
Finally, the Court addressed the High Court’s finding that the determination and consequent imposition of release conditions breached G’s rights to freedom of movement and security against unreasonable search and seizure. The Court of Appeal found that the release conditions were authorised by the ROMI Act and were necessary to manage the risk G posed. Any rights breaches were a consequence of the clear parliamentary intent that the ROMI Act applies retrospectively.
The Court of Appeal allowed the Commissioner’s appeal and held that his determination was lawful.
The High Court’s judgment caused great concern among those in Parliament and they have since amended the ROMI Act to clarify its retrospective intention; highlighting the intersection of judicial decisions and subsequent government action.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
