Tuesday, December 20, 2022

A judicial earthquake

In 2015, racist Australia started dumping its problems here, deporting people who had lived in Australia for their entire lives to New Zealand on the grounds that they born here. The government panicked at the thought of having thousands of hardened criminals sent here, and so passed legislation under all-stages urgency to subject them to a post-arrival parole and supervision regime, even if they had completed their sentence in Australia.

Today, the High Court found that that regime was not retrospective, and so simply did not apply to one of the people subjected to it. Their rights - and by extension, those of every other returnee in similar circumstances - were breached. They further found that as it was punitive in effect, then it constituted double jeopardy, banned by international law. The question of damages will be resolved by other hearings, but given the number of people involved - everyone who had been sentenced before the law was passed - then the wrong could be substantial. Which is a pretty big judicial earthquake just before the holidays.

The ruling is entirely orthodox, resting on a prior finding that Extended Supervision Orders - a similar post-sentence "control order"-style regime - was punitive, and the obvious proposition that if Parliament wanted to over-ride the BORA and Aotearoa's obligations under international law, it would explicitly say so. Having not said so, the BORA is therefore assumed to apply as usual. On this point, then Attorney-General Chris Finlayson's oh-so-clever advice that these orders weren't punitive, but merely a means of protecting the public, and therefore the issues of retrospective punishment and double jeopardy did not arise, looks very poor. It also highlights the underlying flaw in the BORA's section 7 regime: the Attorney-General is advising Parliament, but in practice they work for the government, and their advice constantly reflects that, being crafted to fit the government's political needs and sanitising and downplaying issues. Its an inherently conflicted role, which results in Parliament being poorly-served and fed bullshit by a government spokesperson, and shows the danger of listening to Someone Else's Lawyer. For Parliament to fulfil its proper role under the BORA, it needs its own advice, rather than advice from a government mouthpiece.

As for what happens next, this is a big legal problem for the government, and they'll likely respond to it in the way they have responded to previous big legal problems: with more urgent, all-stages legislation to patch their earlier urgent, all-stages legislation, overturn the judgement, and get them off the hook. This is neither moral, nor respectful of the rule of law, and would once again shows how poor a guardian of our human rights they are. Which would be a further argument for taking the job of BORA oversight off them entirely and giving it to the courts.