Chisnall v The Attorney-General - [2021] NZCA 616

Date of Judgment

22 November 2021


Chisnall v The Attorney-General (PDF 639 KB)


Constitutional law - New Zealand Bill of Rights Act 1990Mr Chisnall applied for a declaration that the extended supervision order (ESO) and public protection order (PPO) regimes are inconsistent with various rights in the New Zealand Bill of Rights Act 1990 (BORA), particularly the right to immunity from second penalty  affirmed  by s 26(2). After referring to the Court of Appeal's judgment in Chief Executive of the Department of Corrections, Whata J held the ESO regime was penal in nature, thus engaging ss 25(g) and 26(2) of BORA. In contrast, he held the PPO regime was not presumptively penal. Insofar as the ESO regime (as amended  in 2014)  applied  retrospectively, the limitations  it imposed  on s 26(2) were not justifiable under s 5, having regard to the impregnable and non-derogable nature of the right to immunity from retrospective penalty. However, the Judge held the extent to which an ESO imposed on offenders who committed qualifying offences after the regime came into effect imposed unjustified limitations on the s 26(2) right would have to be decided on the facts of each case. Had the Judge concluded that the PPO regime was penal in nature, he would have found the limitations imposed on s 26(2) by that regime to be incapable of reasonable justification. In the result, the Judge made a declaration that the ESO regime was inconsistent with s 26(2) of BORA insofar as it applied retrospectively. He declined to make any other declaration. Mr Chisnall appealed. The Attorney-General cross-appealed.

Held - appeal allowed, cross-appeal dismissed. The ESO regime was penal  in  nature. Although the ESO regime had changed since the Court decided Belcher, none of those changes made a material difference to the characterisation of the regime. It could not be said that the ability to consider the consequences of treatment and rehabilitation was a feature of the current ESO regime not present in the regime as it stood when Belcher was decided. All features of the ESO regime identified in Belcher as indicative of a penalty remained. Accordingly, an ESO was a second penalty for the purposes of s 26(2) of BORA. That was the case regardless of when an offender committed his or her qualifying offence.

The PPO regime was also penal. The impact of a PPO was more wide-reaching than the impact of an ESO. A PPO was therefore a penalty unless other aspects of the regime required a different conclusion. None of the features of the PPO regime were sufficient to avoid the conclusion that it was penal. The fact applications for PPOs are made within the civil jurisdiction of the High Court was not material: the focus must be on substance not form. Further, the PPO regime provided no guarantee of therapeutic and rehabilitative interventions by the state. That would have been required in order to conclude the regime was not penal.

Section 26(2) of BORA was not, unlike s 25(g), absolute and non-derogable. However, the importance of the right required sufficient evidence before it could be said the ESO and PPO regimes were justified as a minimum and necessary response to the potential harm caused by persons made subject to the orders. The limitations on the s 26(2) right could not be justified and the ESO and PPO regimes were thus inconsistent with BORA. Declarations would follow.