Is denial of parole a penalty?

Ahmed Zaoui hasn't been the only person in front of the Supreme Court recently, and yesterday it was also hearing an appeal on an application for a writ of Habeas Corpus brought by Kenneth Morgan. Morgan was charged in 2001 with cannabis offences, but between then and his conviction, the government passed the Sentencing and Parole Acts, which altered his eligibility for parole. Previously, he would have been entitled to parole after serving two-thirds of his sentence; under the new rules it is discretionary, and he will be serving his full term. Morgan claims that this violates his rights under the New Zealand Bill of Rights Act 1990, specifically s 25 (g), which states that everyone charged with an offence has

the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

What the Supreme Court will really be deciding here is whether denial of parole is a penalty. And there's a good prima facie argument that it is. If Morgan had been treated according to the rules in place at the time he committed the offence, he would be out of jail by now. Supervised, but still out of jail. Because of the changes in the law, he is still imprisoned. This is a stark difference in his conditions, and no different from if the government had simply increased the length of his sentence by a year.

The Supreme Court cannot overturn the law, but it can "read it down", reinterpreting it so as to be consistent with the Bill of Rights (and in fact it is legally required to do so, under s6, to the extent that it is possible). The likely result of this would be that Morgan would be freed on parole, and possibly be able to sue for compensation. The cases of other prisoners in a similar situation would also have to be reviewed. But the consequences don't just stop there; a finding for Morgan would be extremely damaging to the government's plans to deny convicted criminals compensation for wrongs done to them in prison. After all, if being denied parole is a penalty, then being denied fair access to the courts certainly is - a point I made in my submission on the Prisoners' and Victim's Claims Bill:

The entire bill constitutes retrospective punishment. The bill effectively adds a little something extra to the sentence of every past, present, and future prisoner - a removal of equal rights in the courts - and justifies it on the basis of conviction. It is different only in scale from Parliament deciding to add, say, three years or a $5000 fine to the sentence of every prisoner.

We can only hope that Morgan wins...