It is a decision that will force Parliament to clarify the law and/or appeal against the decision because it could have implications for many of the other 501 former prisoners.
Judge Cheryl Gwyn has declared that such special conditions, including residing at a particular address, supplying fingerprints and DNA, and attending a rehabilitative assessment or treatment programme, amounted to a penalty beyond what he had served in Australia and therefore double jeopardy – contrary to the New Zealand Bill of Rights Act.
And she has accepted the former prisoner’s claim that the law was a retrospective punishment on the grounds that the new “punishment” in New Zealand took effect after he had served time for his crime.
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 judge implied that unless Parliament had specifically stated it wanted a retrospective law, she would rely on the common law principle of retrospective penalties not applying.
The law was brought in in 2015 in response to a large number of deportations by the Australian Government of former prisoners. Nearly 3000 have been deported and the majority have reoffended and some are deeply involved in organised crime.
Police told the court it was very clear that the law was intended to apply to people who had committed crime before the law, the Returning Offenders (Management and Information) Act, took effect in November 2015. Otherwise it would have applied to no one for quite a while.
The judge quashed the original decision by New Zealand authorities to class the former prisoner as a returning prisoner under the Returning Offenders (Management and Information) Act 2015.
She ordered the police to remove his fingerprints from the national fingerprint database, remove his photograph from its database and remove his DNA from the national DNA database.
And she granted the applicant name suppression and said it was likely to become permanent.
The Government is not commenting at present. Cabinet has held its last meeting of the year and it won’t meet again until January 24. Parliament does not resume until February 14.
But a police spokesman said they were aware of the judgment.
“Police are considering the implications of the judgment alongside Ara Poutama Aotearoa – Department of Corrections and are consulting with Crown Law.”
