Crown makes urgent move to halt 501 decision, Govt says it will change law

Justice Minister Kiri Allan says the Government is moving swiftly to limit the effects of the 501 case released on Tuesday, with an urgent hearing this afternoon in the High Court at Wellington.

Allan also said the Government would move under urgency as soon as Parliament resumes to pass legislation to state categorically that the law was intended to apply retrospectively.

That would have the effect of overturning the decision released on Tuesday by Justice Cheryl Gwyn.

The following day, Wednesday, the Crown lodged an appeal on the case – that is set down for February 2.

But Allan confirmed to the Herald that the Crown this morning applied for a stay on the 501 case in order to prevent it having to release other deportees from their parole-type obligations and as a consequence of the case taken by a former drug dealer “G” against his conditions.

Without a stay, the Police and Corrections would have to abandon all parole-type conditions on a group of 501s – those that have arrived since the Returning Offenders (Management and Information) Act (ROMI) took effect in November 2015.

Many of the 501s arriving from Australia between now and when Parliament resumes on February 14 would be released into New Zealand without any conditions attached to their arrival.

Gwyn declared that the conditions attached to “G” were unlawful because they constituted a second form of “punishment”. And she ordered he be removed from the systems involved in his parole-style conditions and that his fingerprints and DNA taken under the same law be removed from the police databases.

Gwyn heard the “G” case in February but released her decision after Parliament had risen for the year.

Justice Cheryl Gwyn said in a decision on Tuesday that conditions attached to a 501 deportee were unlawful because they constituted a second form of “punishment”. The Government has now signalled that it will change the law under urgency. Photo / Mark Mitchell

It is not known yet exactly how many former prisoners will be affected by Gwyn’s decision.

More than 2000 so-called 501s Have been deported from Australia under section 501 of Australia’s Migration Act. Any non-Australian sentenced to 12 months imprisonment is subject to deportation.

New passed the ROMI Act under urgency to apply to deportees arriving within six months of their release. It was widely understood at the time to apply to deportees who had served their sentences - otherwise it would not have applied to anyone for some time.

But Gwyn took the view that unless Parliament expressly said in the law it was to apply retrospectively, the conditions applied to “G” could be considered “a punishment with retrospective effect” – contrary to the double-jeopardy provision of the Bill of Rights Act.