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W v District Court of New Zealand [2018] NZHC 2813 (31 October 2018)

Last Updated: 12 November 2018

JUDGMENT OF CHURCHMAN J

This judgment was delivered by me on 31 October 2018 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

..........................................

W v THE DISTRICT COURT OF NEW ZEALAND [2018] NZHC 2813 [31 October 2018]

Introduction

[1] The applicant, W, seeks judicial review of the refusal by Judge Mill at the Wellington District Court of his appeal against the Commissioner of Police’s determination he has a continued reporting liability under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) in a judgment dated 7 August 2018.¹

Background

[2] On 14 October 2009, W was sentenced to thirteen months’ imprisonment on ten charges of possession of objectionable material, a class 1 offence under the Act. He was released from custody on that sentence on 24 February 2010.

[3] On 28 September 2012, following his release from prison, W was made subject to an Extended Supervision Order (ESO) for a period of seven years.

[4] Between 6 February 2013 and 23 December 2013, a period of 320 days, W was held in custody on matters relating to the ESO.

[5] On 14 October 2016, the Act came into force, creating the Child Sex Offender Register (the CSOR) for which the Commissioner of Police is responsible. W was still subject to the ESO at that time and, it having been imposed for a qualifying offence, the Commissioner applied the Act’s retrospectivity provisions and registered him on the CSOR.

[6] As W had been convicted of a class 1 offence, his registration and resulting reporting obligations would have run for eight years from the date he was released from prison, expiring on 23 February 2018.² However, the Commissioner determined that W’s reporting liability under the Act is not due to expire until 9 January 2019, as s 36(5) of the Act provides that reporting obligations are suspended during any periods of time in custody exceeding seven days, so the period W spent in custody in 2013 does not count towards the period of his reporting obligations.

¹ W v Commissioner of Police [2018] NZDC 15979.

² Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(c).

[7] W, however, proposed an alternative interpretation of s 36(5) which would not remove the days he spent in custody from the calculation, meaning that his registration should have actually expired on 23 February 2018. He wrote to the Commissioner of Police to review his placement on the CSOR, seeking removal from it. When that request was declined, W appealed but was unsuccessful, the District Court upholding the Commissioner’s interpretation.

Approach to review

[8] If an offender wishes to challenge registration, he or she may apply to the Commissioner of Police for review of their placement on the CSOR. If unhappy with that decision, there is a single appeal right to the District Court against the decision, such an appeal being against the exercise of a discretion. No further appeal right is permitted. As this is an application for judicial review, it should not be treated as a general appeal.³

[9] W must establish that the Judge’s interpretation of the law was in error. This presents some problems for the applicant in the present case. As Mr Ewen, counsel for the appellant, freely acknowledged, the issues as to the retrospective application of s 36 of the Act that formed the basis of the judicial review application were not advanced in the District Court before Judge Mill. The case before Judge Mill focused on the meaning of the words “not to be taken into account” in s 36(5). In the situation where the arguments as to retrospectivity advanced on the judicial review application were not put to Judge Mill it is difficult to argue that he made an error in interpreting the law.

[10] However, as the answer to the question of whether, in circumstances such as the present case, the time spent in custody should suspend the reporting obligation, is a matter of potential significance to others, I will address this issue.

3. R v Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] QB 227, [1984] 2 All ER 27 (CA).

Grounds for review

[11] W now argues that s 36 does not operate retrospectively and thus has no application to cases of retrospective registration. He argues that applying s 36(5) to deduct time spent in custody prior to the Act coming into force on 14 October 2016 is logically impossible because no reporting conditions were actually in force at that time. Instead, his reporting obligations are to be determined under cl 3(2)(b)(ii) of Schedule 1 of the Act.

[12] W claims the following:

(i) an order setting aside the dismissal of his appeal to the District Court;

(ii) a declaration that his reporting obligations and registration under the Act ended on 23 February 2018;

(iii) such further or other relief as the Court deems just; and

(iv) costs.

[13] The question for determination in this application for review is, therefore, whether s 36 of the Act has retrospective effect. If it does, then the Commissioner of Police has correctly calculated W’s registration period on the CSOR; if not, then he has not.

Relevant Law

[14] Under the Act, a person becomes a “registrable offender” on conviction for a qualifying offence if he or she:⁴

(a) was at least 18 years old at the time of offending; and

⁴ Child Protection (Child Sex Offender Government Agency Registration) Act, s 7.

(b) is sentenced to a term of imprisonment for the qualifying offence or is sentence to a non-custodial sentence for the qualifying offence and is made subject to a registration order under s 9 of the Act.

[15] Under the Act, a registrable offender has various reporting obligations imposed on him or her for the period of time specified in s 35 of the Act.⁵ Registrable offenders are removed from the register at the end of their reporting obligations. This expiry date will often be determined by simply adding the period of the reporting obligations onto the commencement date. However, this will not be the case where the registrable offender is subject to any of the events that suspend his registration obligations as set out in s 36(1) of the Act:

36 Suspension of reporting obligations

(1) A registrable offender’s reporting obligations are suspended for any period during which—

(a) he or she is in custody for more than 7 days; or

(b) he or she is outside New Zealand, unless he or she is a person to whom section 33 applies or the obligation is under section 22; or

(c) the Commissioner has suspended the offender’s reporting obligations under subsection (2); or

(d) the offender’s reporting period has ceased to run under section 348A of the Criminal Procedure Act 2011; or

(e) a court order suspending the offender’s reporting obligations under section 38(4) is in force.

[16] Of particular relevance on the facts of this case is s 36(5) which provides:

Any period during which a registrable offender’s reporting obligations are suspended under subsection (1) is not to be taken into account for the purpose of calculating when the offender’s reporting period ends.

5. Section 4 defines “reporting obligations” as meaning “the obligations imposed on the person by subpart 2 of Part 2” and “reporting period” as the period “during which a registrable offender must comply with the offender’s reporting obligations”.

Retrospective effect of the Act

[17] A person meeting the age requirement, who has previously been convicted and sentenced to imprisonment on a qualifying offence, becomes retrospectively registerable automatically if they satisfy one of the criteria listed in schedule 1 of the Act on 14 October 2016. Clause 1 of sch 1 of the Act relevantly provides as follows:

[18] Therefore, the Act will apply retrospectively to

1 Retrospective application

(1) This clause applies to a person who, on 14 October 2016, is, in respect of a qualifying offence,—

...

(c) subject to an extended supervision order or an interim supervision order following the sentence of imprisonment that was imposed for that offence; or

...

(4) A person to whom this clause applies—

(a) is a registrable offender for the purposes of section 7(1) and this schedule (if subclause (1) or (2) applies); and

...

(c) is subject to all other provisions of this Act with any necessary modifications.

Analysis

[19] The Commissioner of Police submits that the crucial phrase in sch 1, pt 1, cl 1(4)(c) is “all other provisions”, arguing that this makes it clear that a retrospective registrable offender is subject to the same regime as all other registrable offenders and that this must include s 36.
[20] Counsel for W, Mr Ewen, while acknowledging that the Act was intended to have some retrospective effect, contends that there is a question as to the extent of that effect. He notes that, at common law, the presumption against retrospective application is a strong one and a statute is to be construed in a manner that does not retrospectively affect accrued rights and liabilities, unless the language is in the clearest of terms or arises by necessary and distinct implication:⁶

The common law has long adopted a presumption that legislation does not retrospectively affect accrued rights and liabilities:

It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.

[21] Mr Ewen, relying on the Privy Council decision of B v Auckland District Law Society, submits that a necessary implication does not arise merely because it is a reasonable assessment of what Parliament may or should have intended.⁷ He argues that, unless the implication is essential to the proper functioning of the statute, it is not necessary. If the enactment is capable of being interpreted in a manner that does not abrogate important rights, that interpretation must be preferred:⁸

In my opinion, this common-law right [to solicitor/client privilege] has been left untouched by the statute. If the Legislature had meant to alter this common-law right, it is to be expected that it would have done so expressly— plainly and unambiguously. Certainly it has not done so expressly, and I do not think it can be said to have been done by necessary implication. The section is capable of being interpreted on a supposition that the common-law right or privilege was not to be abrogated by it; and, in my opinion, it should be so interpreted.

[22] Mr Ewen argues that the common law rule against retrospectivity is closely aligned with, and expressed specifically in, s 7 of the Interpretation Act 1999, and that this fortifies the approach mandated by s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA). He submits that textual ambiguity is not a prerequisite before a s 6 consistent meaning is to be applied:⁹

6. Mangawhai Ratepayers and Residents Assoc Inc v Kaipara Distinct Council [2015] NZCA 612, [2016] 2 NZLR 437 at [131] per Miller J, citing R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) (citation omitted).

⁷ B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 at [58].

⁸ Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA) at 213 per Gresson J.

⁹ Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449 at [74] (citation omitted).

Section 6 of the Bill of Rights Act directs that wherever a statutory enactment can be given a meaning consistent with the rights and freedoms contained in the Act that meaning is to be preferred to any other. That section reflects a common law principle of legality that operates in a wider context, is constitutional in nature, existed long before enactment of the Act and does not depend on the existence of ambiguity in a statutory provision.

[23] Noting that the rule against double punishment is a foundation principle of criminal law in the community of nations,¹⁰ Mr Ewen submits that the reporting liability imposed retrospectively on W is a double punishment and thus an infringement of s 26 of NZBORA,¹¹ engaging the s 6 injunction to read down the legislation to a NZBORA-compliant form. He contends that, when taken together, the rules combine to require the strictest construction possible of a purportedly retrospective statute.

[24] Mr Ewen submits that the Courts require a high degree of specificity of language to overcome the presumption that accrued rights are unaffected:¹²

It is settled that if Parliament intends to limit a right prescribed by the Bill of Rights Act and actively respond to the Atkinson decisions in a manner inconsistent with the Tribunal’s findings it could be expected to do so clearly and explicitly, not by a sidewind.

...

Part 4A was, we accept, Parliament’s response to the Atkinson decisions. However, if as Mr Heron submitted the legislature intended as a component of that response to overrule the Atkinson declaration and give the Atkinson policy retrospective authority, it could and should have said so. In other contexts Parliament has done just that. The Parliamentary Privilege Act 2014, for instance, provides that one of its subsidiary purposes is “to alter the law in the decision in Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 (SC)”. But there is nothing approaching those terms in pt 4A.

[25] In the context of abrogation of rights, Mr Ewen submits that the Courts will not step in to remedy any deficiencies in the language employed by the legislature, relying on a House of Lords decision in which Lord Macmillan stated:¹³

10. R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695 at [6] per Gault J and at [75] per Thomas J; R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA); and Waddington v Miah [1974] UKHL 6; [1974] 2 All ER 377 (HL) at 379 per Lord Reid.

¹¹ Bird v Police [2017] NZHC 1296.

¹² Attorney-General v Spencer, above n 8, at [73] and [83] (citations omitted).

13. Ayrshire Employers v Mutual Insurance Assoc Ltd v Commissioners of Inland Revenue (1946) 27 TC 331 at 347.

The Legislature has plainly missed fire. Its failure is perhaps less regrettable than it might have been, for the Sub-section has not the meritorious object of preventing evasion of taxation, but the less laudable design of subjecting to tax as profit what the law has consistently and emphatically declared not to be profit.

[26] He also relies on the Court of Appeal decision in Attorney-General v Spencer
in which the following was said:¹⁴

Parliament introduced pt 4A under urgency without prior notice only one month before Mrs Spencer’s judicial review proceeding was heard in the High Court. It contained a number of features that are traditionally regarded as being contrary to sound constitutional law and convention – on the Ministry’s interpretation it has retrospective effect, authorises discriminatory policies, withdraws rights of judicial review and access to the Tribunal and did not go through the normal Parliamentary Select Committee and other processes. While both counsel accept that the courts must respect and apply pt 4A, like any other legislation, we agree with them that if the words have not achieved the result which its promoters intended the courts should not seek to fill the gaps as a means of dealing with inadequate drafting.

[27] Mr Ewen submits that, even when legislation has some retrospective effect, it will be interpreted in a manner which gives it the least degree of retrospectivity that is necessary to its essential functioning, relying on the following passage from Bennion on Statutory Interpretation:¹⁵

If it is clear that legislation is intended to have some retrospective effect, the necessary corollary to the presumption against retrospectivity is that it should not be given greater retrospective effect than is necessary to achieve the legislative intention.

[28] He also relies on the following passage quoted in Allen v C3 Ltd:¹⁶

It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction; and the same rules involve another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

[29] Mr Ewen submits that it follows that, in construing terms of a statute that have a temporal aspect, the proper approach to retrospective application is one of the

¹⁴ Attorney-General v Spencer, above n 8, at [84] (citation omitted).

¹⁵ Diggory Bailey, Luke Norbury and David Feldman (eds) Bennion on Statutory Interpretation (7th ed, LexisNexis, London, 2017) at 186; approved in Hager v Osborne [1992] Fam 94 at 99 and S (L) v P (E) (1999) 67 BCLR (3d) 254 at [51].

¹⁶ Allen v C3 Ltd [2012] NZEmpC 124 at [60], citing Lauri v Renad [1892] 3 Ch 402 at 421 per Lindley LJ.

strictest construction, where no wider meaning is given to a term than is absolutely necessary.

[30] In terms of application to the present case, Mr Ewen submits that, as s 36 of the Act is not included or referred to in cl 3 of the sch 1 transitional provisions which deal directly with the reporting obligations of those who have been made subject to the Act retrospectively, there is no clear legislative intent demonstrated that the provision was to have retrospective effect. He argues that s 36 applies from the s 2 commencement date of 14 October 2016 and any period in custody (of more than seven days) after that date will attract its suspensory effect, but no time prior. It cannot be reasonably argued, Mr Ewen submits, that retrospective application of s 36 is essential to the proper functioning of the Act and an interpretation which limits the application of this section to 14 October 2016 and after is consistent with the statutory text, the common law, the Interpretation Act, and NZBORA, and therefore must be preferred.

Conclusion

[31] While s 7 of the Interpretation Act requires the assumption that enactments do not have retrospective effect, here the legislature has stated its intentions, plainly and unambiguously, that the Act’s provisions are to apply retrospectively to those persons who come within cl 1 of sch 1 of the Act. That includes someone such as W who was imprisoned for a qualifying offence and then made subject to an ESO which was still in force on 14 October 2016. As cl 4(c) states that a retrospective registrable offender is subject to “all other provisions of this Act”, s 36 is clearly included and there is, therefore, no alternative interpretation to s 36(5) other than that applied by the Commissioner of Police.

[32] In relation to the argument advanced by Mr Ewen that it was difficult to see how an obligation can be suspended when it would take more than three-and-a-half years for the obligation to be created, the reality is that this legislation creates a number of legal fictions. Any analysis based on logic needs to have regard to those legal fictions. The interpretation argued for by Mr Ewen would result in some, but not all, of the provisions of s 36 having retrospective effect. That is not a tenable argument.
The Act is clearly intended to have retrospective effect and Parliament has clearly indicated that it is all provisions of the Act that are to operate retrospectively. That is the inevitable consequence of the wording in cl 1(4)(c) of pt 1 of sch 1 to the Act. An argument that some of the consequences of s 36(5) are to be retrospective but others are not, runs directly counter to the clear statutory indication that a person to whom cl 1 of pt 1 of sch 1 to the Act applies “is subject to all other provisions of this Act ...”.

[33] The Commissioner was correct to exclude the period that W was in custody from the calculation of his reporting period. Judge Mill did not err in dismissing W’s appeal on the basis of the arguments addressed to him and, had the arguments advanced in this Court on the application for judicial review been advanced in the District Court, they would not have succeeded either.

Result

[34] Accordingly, this application for judicial review is dismissed.

Suppression

[35] The applicant’s name and identifying particulars are the subject of a consent suppression order made initially in the District Court and confirmed, pending the substantive hearing of the judicial review application, by Thomas J on 10 October 2018.

[36] At the hearing of this matter Mr Ewen applied for a permanent suppression order and Mr Murray did not oppose that application. Accordingly, I make an order permanently suppressing the applicant’s name and identifying particulars.

Costs

[37] The parties’ written submissions did not deal with the question of costs, although the applicant, in oral submissions, submitted that 2B costs would be appropriate.
[38] Costs should follow the event. If the parties cannot agree I invite the second respondent to file submissions within 14 days with the applicant having 14 days to reply. In the absence of any application for costs against the first respondent, there is no need for the first respondent to file a memorandum.









Churchman J

Solicitors / Counsel:

Mr D Ewen, Barrister, Wellington

Ord Legal (for the Applicant), Wellington

Crown Law (for First and Second Respondents), Wellington