Detention regimes for high-risk offenders found inconsistent with Bill of Rights protections
The Supreme Court has declared that certain provisions of the Public Safety (Public Protection Orders) Act 2014 and the Parole Act 2002 are inconsistent with the right to be free from a second penalty under section 26(2) of the New Zealand Bill of Rights Act 1990.
In Attorney-General v Chisnall [2025] NZSC 126, the Court considered the form of declarations following its earlier finding that the public protection order regime and the detention-authorising aspects of the extended supervision order regime were inconsistent with the Bill of Rights Act. The Court determined that declarations of inconsistency should be issued, and addressed submissions from both parties regarding the appropriate detail and wording.
The respondent, Mr Chisnall, sought more detailed declarations to ensure clarity for affected individuals and the public. The Attorney-General proposed a more limited approach. The Court agreed with Mr Chisnall’s position, stating that the declarations should be sufficiently detailed to be understood without reference to the full judgment. The Court also accepted the Attorney-General’s submission that the issue of retrospective application should be addressed in the declarations, making clear the distinction between prospective and retrospective application.
On costs, the Attorney-General submitted that costs should lie where they fall, noting partial success in narrowing the scope of the inconsistency found. Mr Chisnall sought costs, arguing he was substantially successful in maintaining the declaration made in the Court of Appeal. The Court awarded Mr Chisnall $70,000 plus usual disbursements, with a downward adjustment to reflect the Attorney-General’s partial success.
The Supreme Court declared that public protection orders made under the 2014 Act, and certain detention-authorising conditions in extended supervision orders under the Parole Act, are a second penalty for offences for which offenders have already been punished. The Court found that this limitation is not justified under section 5 of the Bill of Rights Act. The Court also declared that the retrospective application of these regimes cannot be justified, and that the relevant statutory provisions are inconsistent with section 26(2) of the Bill of Rights Act.
Justice Glazebrook dissented, stating she would not have made a declaration of inconsistency and made no comment on the form of the declarations.
This decision addresses the form and content of declarations of inconsistency and the issue of costs, following the Court’s earlier substantive findings regarding the relevant statutory regimes.
