Crown successful in appealing 501 deportee’s case against returning prisoner legislation

The case was heard at the Court of Appeal in Wellington in February. Photo / Mark Mitchell

A precedent-setting decision that found a 501 deportee had his rights breached when he returned to New Zealand has been quashed by the Court of Appeal.

The Crown has successfully appealed a High Court decision that said conditions put on the Australian deportee when he arrived in the country breached his human rights.

The earlier decision sent Parliament scrambling to urgently amend the Act so the decision wouldn’t apply to more returning offenders.

The man, referred to only as “G” in court documents, earlier argued imposing conditions on him upon his return to New Zealand amounted to a second punishment when he had already served his sentence.

The Court of Appeal today agreed the Returning Offenders (Management and Information) Act 2015 [ROMI] imposed restrictions, but found it adequately protected the right to natural justice in the Bill of Rights Act.

The former prisoner committed “commercial” drug dealing offences in Australia in 2012, was convicted in 2014 and sentenced the following year.

He was deported in 2019 as a 501 under the ROMI Act and was labelled as a returning prisoner.

When he returned to the country, he had to give the police his fingerprints and was told where he was allowed to live.

G argued he should not have been given this label when he arrived in New Zealand as this meant he would be subjected to parole-like conditions despite serving his sentence.

In the earlier High Court decision, the judge ruled the imposition of conditions on G was double jeopardy and was in breach of his human rights.

She agreed with G’s submission that the returning prisoner status was unlawfully applied and found he had been punished again for crimes he had served time for.

In her decision, she ordered the removal of the man’s fingerprints, DNA and photographs from the police database.

After her decision, the Crown filed an urgent appeal against the decision because of the wider implications it could have on similar cases.

The Crown also applied for a stay on the 501 case to prevent the decision possibly being applied to other cases of deportees who might argue they should also be released from return conditions.

At the start of this year, Justice Minister Kiri Allan said the Government would move under urgency to amend the bill, which has now come into effect, to state categorically that the law was intended to apply retrospectively.

Parliament has since passed an amendment to the Act, but today’s Court of Appeal decision said the changes did not affect the case at hand.

The ROMI Act was passed under urgency in 2015 with the support of all parliamentary parties at the time, except the Green Party which abstained.

Under the law, the chief executive of Corrections may apply to the district court for special conditions on a returning offender or returning prisoner.

Returning offenders may be required within six months of their return to New Zealand to provide “identifying particulars” – including photographs and fingerprints – similar to those that may be taken from people in police custody.

The label ‘501 deportee’ refers to the section of Australia’s Migration Act allowing the country to cancel someone’s visa if they fail a “good character” test.

The controversial legislation means anyone who is not an Australian citizen who is sentenced to 12 months in an Australian prison is subject to deportation, though it can also extend to those without convictions.