High Court reserves decision on whether Government can stay proceedings on 501 case

Wellington High Court. Photo / File

The High Court has reserved its judgment on whether a stay will be granted in the decision to remove parole conditions from a 501 deportee.

The hearing followed a decision released on Tuesday by Justice Cheryl Gwyn which said a former drug dealer, known as G, deported from Australia in 2019 should not be subject to special conditions including residing at a particular address, supplying fingerprints and DNA, and attending a rehabilitative assessment or treatment programme.

She said these amounted to a penalty beyond what he had served in Australia and therefore double jeopardy – contrary to the New Zealand Bill of Rights Act.

She 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.

In the High Court on Friday, Crown Lawyer Austin Powell submitted to Justice Andru Isac that the parole conditions imposed on 501s in Aotearoa did not materially differ from those they would be subject to if they had stayed in Australia.

“The position of 501s is unique, we release people from long-term imprisonment in New Zealand all the time, but always subject to conditions of parole. It is another thing entirely to release a person not only without support, but in a country where they have no connection or community,” he said.

Powell continued on to say the decision would have wider-ranging implications than just the case of G, and should be stayed until it can be appealed on February 2.

The stay would prevent the Government from having to release other deportees from their parole-type obligations 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 – namely those that arrived since the Returning Offenders (Management and Information) Act (ROMI) took effect in November 2015.

This means 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.

Justice Isac also heard submissions from G, who represented himself in court.

G told the court that a stay on the decision would be “unjust and unconstitutional”.

“We’re talking about more than just me, we’re talking about 2000 other people – there is a moral obligation here as well as a legal one.”

Justice Minister Kiri Allan said the Government is moving fast to limit the scope of Justice Gwyn’s decision which was made after Parliament had risen for the year – despite it being heard in February.

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 – which would overturn Justice Gwyn’s decision.

Justice Isac reserved his decision.