What has been described as a bombshell High Court judgement was released last week, finding special conditions placed on a deported drug dealer violated the Bill of Rights Act because they amounted to double jeopardy (punishing him twice for his crime).
The man had been required to live at a particular address, supply his fingerprints and DNA, and attend a rehabilitative assessment or treatment programme even though he had already served his sentence in Australia.
He had sought a judicial review of his returning prisoner status, arguing it was unlawfully applied to him and breached his human rights and that he had been punished again for the crime.
The Crown has moved swiftly to file an urgent appeal with the Court of Appeal because of the judgement’s "potential impact" on the management regime used for all 501 deportees.
The 501s are so-called because they are deported under section 501 of Australia’s Migration Act 1958. More than 2000 of them have arrived on our shores under Australia’s immigration policy since 2014.
Concerns have been ongoing about their welfare and ability to fit in to New Zealand life without resorting to crime, because many of them have no real connection to Aotearoa after living for decades in Australia.
In November 2015, the then National-led Government rushed through legislation, The Returning Offenders (Management and Information) Bill under urgency amid increasing concern about the potential criminal risk the deportees posed. It was designed to strengthen oversight of the deportees and promoted as helping to keep the law-abiding New Zealand public safe.
How well it might have done that is questionable. Earlier this year it was reported that since 2015 deportees from Australia had been linked to 14,365 offences, including 2854 of violence and almost 4000 of dishonesty.
In 2015 minister in charge of the Bill, Justice Minister Amy Adams said the regime "will mean that offenders who arrive here shortly after being released from prison will be subject to the same sort of oversight as offenders who served a similar sentence here.”
It was supported by all parties except the Green Party which abstained.
Then Green Party co-leader Metiria Turei was critical of the rush, as was the New Zealand Law Society.
As she said, legislation passed in haste "always leads to problems" and given the sort of powers involved in the proposed law, taking more time was all the more important.
In Parliament she sought a select committee process, even a truncated one, on the grounds the Bill dealt with complex issues requiring a "careful balancing between the rights of every New Zealander to be treated fairly and the issues of public safety where New Zealanders with serious convictions are coming home".
She also mentioned the risk of double jeopardy.
"They should not be punished twice — once in Australia for the conviction and then again here in New Zealand — because we have a legal regime that is inadequate, that tends to impose more obligations on a person than can be justified in the context of their personal circumstances — the circumstances of their conviction."
Perhaps this mess could have been avoided if there had been a proper select committee process at the start instead of a narrow review of the operation of the legislation in 2019 by the Justice select committee (under a Labour-led Government).
That process concluded the ROMI Act was generally working as intended. It dismissed the law society’s concerns about double jeopardy. and several other issues such as allowing the right to challenge the validity of an overseas conviction.
If politicians are now scrabbling to work out how to respond to the issues raised by Justice Cheryl Gwyn’s judgement, it is hard to be sympathetic.
The Crown on Friday applied for a stay on the case in order to prevent it having to release other deportees from their parole-type obligations.
In a late-night decision, Justice Andru Isac granted the stay. The case will be heard in the Court of Appeal in February.
