CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MARK DAVID CHISNALL [2020] NZHC 243

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v MARK DAVID CHISNALL [2020]NZHC 243 [17 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-756[2020] NZHC 243IN THE MATTER OF New Zealand Bill of Rights Act 1990, s 26BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND MARK DAVID CHISNALLRespondentATTORNEY-GENERALRespondent to Cross-ApplicationHearing: 20 February 2020(Via telephone conference)Counsel: B Keith and G Edgeler for RespondentA Todd for Respondent to Cross-ApplicationJudgment: 17 March 2020JUDGMENT (NO 2) OF WHATA JThis judgment was delivered by me on 17 March 2020 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Law, Wellington[1] In my first judgment in this matter I resolved:1[161] that s 107I(2) of the Parole Act 2002 is inconsistent with section26(2) of the New Zealand Bill of Rights Act, as informed by arts 14(7) and 26of the International Covenant on Civil and Political Rights insofar as it appliesretrospectively. [2] I sought submissions on the proper form for a declaration to that effect.Drafting the declaration has proven difficult, notwithstanding the helpful cooperationof counsel.[3] The Attorney-General submitted that reference to arts 14(7) and 26 of theInternational Covenant on Civil and Political Rights (ICCPR) may be problematicinsofar as the Court is perceived to be making a formal declaration of inconsistencywith those articles.[4] Mr Keith, for the applicant, responded that a declaration in that form does notpurport to formally declare inconsistency with those articles. He makes the point thatthe argument before the Court proceeded on the basis that the interpretation and theresolution of the central issues was informed by those articles.[5] I have come to the view that, because the jurisdiction of this Court to makedeclarations in relation to those articles of the ICCPR was not canvassed in argument,the declaration should be circumscribed to the key matter that was in issue, namelyinconsistency with s 26(2) of the New Zealand Bill of Rights Act.[6] The Crown proposed a form of declaration as follows:Sections 107I(2) and 107C(2) of the Parole Act 2002 are inconsistent withsection 26(2) of the New Zealand Bill of Rights Act 1990, insofar as thoseprovisions apply retrospectively to those who committed qualifying offence(s)before section 107I(2) came into force.[7] Mr Keith's initial response was to seek removal of the word "retrospectively"because of its ambiguity. However, both counsel agreed that in fact the reference to"qualifying offence(s) before s 107I(2) came into force" introduced a potentially moresignificant ambiguity. This is because it is unclear what version of that section is being1 Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126.referred to and could lead to under or over-inclusion of offenders, depending on whichversion of s 107I(2) is being referred to.[8] Both counsel then retreated to the inclusion of the word "retrospectively" asproviding a safer route for the purposes of the formal declaration. The declarationwould then be:Sections 107I(2) of the Parole Act 2002 are inconsistent with section 26(2) ofthe New Zealand Bill of Rights Act 1990, insofar as those provisions applyretrospectively[9] I was initially attracted to this (relatively) simple approach, that is retaining theword "retrospectively" and excluding reference to "those who committed qualifyingoffence(s) before s 107I(2) came into force". However, on further reflection, I becameconcerned that a declaration to that effect would still be ambiguous.[10] I indicated to counsel that the offending provision for the purposes of thedeclaration was in fact s107C(2), which defines eligible offender as follows:To avoid doubt, and to confirm the retrospective application of this provision,despite any enactment or rule of law, an offender may be an eligible offendereven if he or she committed a relevant offence, was most recently convicted,or became subject to release conditions or an extended supervision orderbefore this Part and any amendments to it came into force.[11] I also indicated to counsel that, as I signalled in my first judgment at [157], itseemed to me that the declaration should be specifically directed to that section andthat the scope of the declaration would be self-evident.[12] Counsel responded that there is still benefit in recognising that s107(I)(2) is theoperative section of the Parole Act under which an extended supervision order is made.They agreed, however, that reference to s107C(2) will mitigate confusion. Theytherefore proposed the following:Section 107C(2) of the Parole Act 2002 is inconsistent with section 26(2) ofthe New Zealand Bill of Rights Act 1990, to the extent that it permits themaking of an extended supervision order under section 107I(2) of the ParoleAct 2002 in respect of any person whose relevant offence was committed priorto the coming into force of section 107I(2).[13] I am content with this form of the declaration except that counsel havereintroduced ambiguity by reinserting "in respect of any person whose relevantoffence was committed prior to the coming into force of section 107I(2)". For mypart, that is unnecessary given s107C(2) defines the impugned retrospectivity.[14] Accordingly, I make the following declaration:Section 107C(2) of the Parole Act 2002 is inconsistent with section 26(2) ofthe New Zealand Bill of Rights Act 1990, to the extent that it permits theretrospective application of section 107I(2) of the Parole Act 2002.