Court of Appeal Cases 

Court of Appeal, Wellington CA199/2007; [2008] NZCA 295; [2009] 2 NZLR 495
19 March 2008; 13 August 2008
William Young P, O'Regan and Baragwanath JJ

Mr Yadegary, a citizen of the Islamic Republic of Iran, arrived in New Zealand in 1993, whereupon he destroyed his Iranian passport. Three applications for refugee status followed. Each was unsuccessful, as was an application to the Removal Review Authority, an application for judicial review and applications to the Minister of Immigration. On 2 November 2004 Mr Yadegary was served with a removal order, taken into custody and held at Auckland Central Remand Prison where he remained under successive warrants issued by the District Court. On 4 April 2007 he was released by order of the High Court: Yadegary v Manager, Custodial Services, Auckland Central Remand Prison [2007] NZAR 436 (Courtney J). The Chief Executive of the Department of Labour appealed against that decision.

The detention for two years and five months was brought about by Mr Yadegary's refusal to sign an application for an Iranian passport and for its part the Iranian regime would not accept repatriation of its nationals without such passport. Mr Yadegary could have ended his detention by applying for an Iranian passport, in which case he would have been immediately removed from New Zealand. But he persistently refused to do so.

The question raised by the appeal concerned the interpretation and effect of s 60 of the Immigration Act 1987 which itself had been amended in response to a decision of the High Court ordering the release of two Iranian overstayers who had similarly refused to apply for Iranian passports: Mohebbi v Minister of Immigration [2003] NZAR 685. The amendment removed the three month limit to detention in the case of persons whose own conduct is a reason for their inability to leave New Zealand.

In the Court of Appeal the majority (Baragwanath & O'Regan JJ) agreed that the appeal should be dismissed but for different reasons. William Young P dissented.

Held (per Baragwanath J):

1    The concepts of "unreasonable period" and "public interest" in s 60(3) of the Immigration Act 1987 applied to persons falling within subs (6) (see paras [7] to [9]).

2     By the terms "reasonable" and "exceptional circumstances" in s 60, Parliament intended to preserve the right to be free from detention that is inappropriate, unnecessary and unpredictable. It could be only in the most unusual of circumstance that detention for a period that is unreasonable could nevertheless be in the public interest (see paras [39], [40] & [71]).

3     Detention of persons falling within s 60(6) must terminate if either:

(a)  There are exceptional circumstances, which includes the case where further detention would be for an unreasonable period unless it is in the public interest to make a warrant of commitment; or

(b)  The purpose of placing the person on a craft that is leaving New Zealand is no longer being served.

       These categories may overlap (see para [83]).

4     What is an unreasonable period may depend upon two particular considerations. One is a realistic prospect that the means of removing the person from New Zealand will come into existence, as by the securing of an agreement with the authorities of another state. The other is simply that too much time has elapsed. What is in the public interest also requires particular consideration (see para [84]).

5     As to "unreasonable period", the principle of legality requires very clear language before there is departure from the constitutional basic: in New Zealand we do not imprison for long periods persons who have not offended gravely against the criminal law. The principles behind our sentencing and bail legislation reflect an awareness that deprivation of liberty is a severe step and that alternatives should always be considered. In the present case, at the time of the District Court Judge's decision Mr Yadegary had already been in detention for two years. At least an additional six months must have been in the Judge's contemplation. In terms of the application of the Parole Act 2002 the total would equate to a term of between and seven and a half years imposed by a criminal court at the time. At the time of the decision of the District Court Judge it was apparent that the reasons Mr Yadegary was not able to leave New Zealand were likely to remain in existence for what would, by New Zealand standards, constitute an unreasonable period. It follows that the "not unreasonable" time ground of s 60(3)(b) was not established (see paras [107] & [108]).

6     As to "public interest", the purpose of ensuring deportation and a high level of compliance with immigration law indicate a firm perspective that it is in the public interest to deport overstayers expeditiously and to ensure that breaches immigration law are taken seriously. But difficulty in the deportation process is already dealt with under s 60(3)(c), and the reasonableness requirement in that subsection cannot be short-circuited by an appeal to the public interest. Some other circumstance is needed such as, for example, risk of offending or absonding. In the present case, the only factor that could take Mr Yadegary's case outside the normal circumstances that would call for a s 60(3)(c) assessment was his refusal to sign the travel documents. There is no danger to the public and a very low flight risk. The fact that terrorism suspects are eligible to apply for bail is a significant pointer against the proportionality of treating public interest as requiring indefinite detention in the present case. There was not sufficient public interest in Mr Yadegary's detention to warrant further incarceration beyond a reasonable period. It followed that the ground in s 60(3)(d) was not established (see paras [109] & [110]).

Held (per O'Regan J):

7     I disagree with the analysis of Baragwanath J that a judge determining whether an uncooperative detainee's warrant for detention should be renewed is required to be satisfied that the reasons that the detainee cannot leave New Zealand under s 60(3) continue and are likely to continue "but not for an unreasonable period" or that it is "in the public interest" that the detainee's detention continue. In my view, s 60(6A) provides its own authority for a Judge to extend a warrant whether s 60(3) applies or not - all that is required is that the Judge had decided not to order the detainee's release under s 60(6) (see para [188]).

8     On the facts before us I accept that the purpose of removing Mr Yadegary remains achievable because the negotiations with Iran may yield a result that makes it possible to remove him without his signing anything. I also accept that continued detention of Mr Yadegary would serve the subsidiary purpose of detering non-cooperation by others (see para [191]).

9     The question is whether  Mr Yadegary's position amounted to an exceptional circumstance at the time the District Court considered the application for the extension of the warrant of commitment. It is clear that the mere fact of imprisonment for more than the three month maximum period referred to in s 60(7) does not constitute exceptionality. Those who delay their removal by their own actions are not entitled to the protection of that time limit (see para [192]).

10    The time factor cannot be excluded from the consideration of exceptional circumstances. If it were excluded, as the Crown argued it should be, indefinite imprisonment would have to be countenanced, and the Crown rightly conceded the section did not provide for that. I agree with Baragwanath J that, if the time factor was intended to be excluded from the analysis of exceptional circumstances, s 60(6) would have needed to say so (see para 193).

11    The circumstances would be exceptional if the only method of removing Mr Yadegary was with his cooperation and the purpose of coercion could not be expected to succeed. If the coercion purpose could not be expected to succeed, neither could the overarching purpose of effecting Mr Yadegary's removal. The point at which the purpose of coercion can be said to have failed is a matter on which views can reasonably differ, but I would be prepared to find on the present facts that it had been reached after 29 months of detention. Such a period is also sufficient in my view to disincentivise non-cooperation (though I acknowledge that an even longer period of detention would provide an even greater disincentive). It has to be remembered that the situation which led to the enactment of s 60(6) was that there was a three month maximum. Mr Yadegary was in detention for almost ten times as long as that (see para [194]).

Held (per William Young P) (dissenting):

13    It is implicit in the scheme of ss 59 and 60 that the detention which is contemplated is for the purpose of facilitating removal. I am therefore prepared to accept that there may be cases where removal is so unlikely or remote in time as not to warrant detention (see para [218]).

14    In a situation which is covered by s 60(6), the critical issue is whether there are "exceptional circumstances" and the reasonableness or otherwise of the period of detention which is brought about by the recalcitrance of the detainee is not a controlling consideration. In saying this, however, I am not disputing the relevance of length of detention. A period of detention which goes beyond what could have been contemplated by the legislature in enacting s 60(6) will, I accept, amount to an exceptional circumstance (see para [226]).

15    I proceed on the basis that the legislation would not permit holding Mr Yadegary in prison until he either dies or cooperates in his removal (which is what I mean by indefinite detention). I see such a limitation as able to be achieved by either (or both):

(a)  Construing or applying the exceptional circumstances test so as to include detention which has - or threatens to - become indefinite; and

(b)  Accepting that detention which has (or threatens to) - become indefinite is necessarily associated with any prospect of removal in unacceptably unlikely or remote in time.

       I do not think it matters which approach is taken. For ease of discussion I propose to treat indefiniteness of length of detention as an independent basis justifying release. I should make it clear, however, that I see a difference between indefinite detention (as I have defined it) and indeterminate detention which is contemplated under s 60(6) in the sense that at the point detention begins, it is not necessarily going to be clear when it will end (see para [229]).

16    This analysis does not solve the fundamental problem of identifying a point in time when detention must cease and exposes a fundamental weakness in the legislative scheme in the context of the sort of Iranian overstayers to whom it was addressed. Unless there is a diplomatic solution, there will necessarily come a time when a detainee who refuses cooperation will have to be released. Of course, identifying the length of time after which the courts will require release (which in reality is what the judgment of Courtney J does) is an invitation to such overstayers to sit out the government and in this way obtain de facto residency (which, subject to the possibility of a diplomatic solution, is what Mr Yadegary has now managed to do) (see para [230]).

17    I am not particularly enamoured of my own interpretation of the section. In involves a degree of coercion which, as well as being a little uncomfortable to contemplate, will not necessarily be effective; this because even on my approach, a detainee in Mr Yadegary's situation will know that, absent a diplomatic solution, he or she will eventually be released (albeit on my approach probably after a period considerably longer than two years). On the other hand, at least on my approach, the policy under-pinning s 60(6), imperfect though it may be, is given a chance to work. A section is not given a chance to work if the courts treat as an exceptional circumstance a period of detention during which Mr Yadegary was seeking to remain in New Zealand and thus could not sensibly have been expected to leave voluntarily (see para [231]).

18    It is at least possible that Mr Yadegary might eventually cooperate in his return and I do not see the proposed removal of Mr Yadegary as so unlikely or remote as to no longer justify detention. The possibility of Mr Yadegary submitting to removal has yet to be excluded. Given that the underlying statutory purpose may still be achieved, the detention was not indefinite (see paras [254], [255] & [257]).

19    As to whether there are exceptional circumstances which warrant Mr Yadegary's conditional release, the sort of circumstances which are part and parcel of the ordinary run of cases which must have been envisaged when the legislative scheme was enacted do not seem to me to be properly regard as "exceptional". So the general unpleasantness of imprisonment (which is a given in any debate about imprisonment) and predictable impacts of detention on Mr Yadegary seem to me to be of no more than contextual significance. Nor in the absence of flight risk (because absence of flight risk is a precondition to the discretion to release under s 60(5), which is constrained by s 60(6)) (see para [262]).

20    The only factor associated with the case which might be exceptional is the length of Mr Yadegary's detention. I have no difficulty in accepting that length of detention may be an exceptional circumstance. I also agree that whether any particular period of detention amounts to an exceptional circumstance falls to be determined in the context of the other time limits stipulated in s 60 (72 hours, 7 days and three months). But it also falls to be determined in the context of the sort of situation which the legislature must have envisaged as likely to arise involving an obdurate detainee who was not prepared to cooperate in repatriation. In this context, s 60(8) is of significance. If the judgment of Courtney J is upheld, the next person in Mr Yadegary's situation will be reasonably confident that, absent a change in policy by the Iranian government, he or she will gain de facto residency rights if prepared to spend say two years in prison. Someone who prefers to live in New Zealand rather than Iran may well be prepared to undergo two years imprisonment on that basis. So the reality is that the result of this case will encourage non-compliance with immigration laws, both by Mr Yadegary (who will be encouraged to remain in resolute defiance of his obligations under s 45 of the Act) and by anyone else similarly placed. As already indicated by my approach to the issues associated with remoteness of removal and whether Mr Yadegary's detention had become indefinite, I think that the underlying legislative purpose had not been spent in his case at the time he was released. In short, I am of the view that the circumstances of Mr Yadegary were not exceptional (see paras [263] to [266]).

Appeal dismissed

Other cases mentioned in the judgment

Judgment of the Court:

A The appeal is dismissed.

The appeal and its context
Background facts
The immediate legislative scheme
The submissions
Tools of interpretation
Text
The Bill of Rights Act and the principle of legality
Context
New Zealand imprisonment policy
Criminology and the criminal law
The purposes of detention under s 60
Custodial sentences in New Zealand
(i) The Sentencing Act 2002
(ii) The Bail Act 2000
(iii) The Immigration Act 1987
(iv) Appropriate lengths of imprisonment
Discussion
Purposes
The principle
Review of the District Court decision
The grounds in s 60(3) and (6)
Section 60(3)(c)
Section 60(3)(d)
The presence of a s 60(6) factor and exceptional circumstances
Application of principles
Unreasonable period
Public interest
Exceptional circumstances
Summary: evaluating subs (6) cases
The alternative ground: arbitrary detention
Decision
Orders
Appendix
The international context
(i) The United Kingdom
(ii) Hong Kong
(iii) Canada
(iv) Australia
(v) USA

The appeal and its context

[1] The respondent is an Iranian national who is unlawfully in New Zealand. In November 2004 he was detained by a warrant of commitment made under s 60 of the Immigration Act 1987. He remained in detention until April 2007, when he was released by order of the High Court: Yadegary v Manager, Custodial Services, Auckland Remand Prison [2007] NZAR 436. The Chief Executive of the Department of Labour now appeals against that decision.

[2] The respondent had destroyed his passport and, as Iran will not accept repatriation of its nationals without a passport, he could not be deported. The respondent could have ended his detention by applying for an Iranian passport to replace the one he destroyed, in which case he would have been immediately deported. But he has persistently refused to do so.

[3] The question raised by this appeal concerns the interpretation and effect of s 60 as part of the scheme for removal of unlawful immigrants from New Zealand. The section was amended in response to a decision of the High Court which ordered the release of two Iranian overstayers who refused to apply for passports: Mohebbi v Minister of Immigration [2003] NZAR 685. The amendment removed the three-month limit in the case of persons whose own conduct is a reason for their inability to leave New Zealand (s 60(6)). Certain other aspects of the amendment must be examined in detail.

[4] Being unlawfully in New Zealand, the respondent is obliged by law to leave (s 45). A removal order was made against him by an immigration officer (s 54). He was arrested (s 59) and detained under a series of warrants of commitment issued by a District Court Judge and extended several times (s 60). Two years after the respondent was first imprisoned, an application for a further extension of the warrant of commitment was heard by Judge Field. The Judge was satisfied that the respondent had committed no criminal offence, was not a flight risk, and had support available if granted conditional release from detention (available under s 60(5)). But he understood s 60(6) to prohibit release in the absence of “exceptional circumstances”. The Judge considered that there were no “exceptional circumstances” and so granted the Crown’s application and ordered that the warrant be extended. On judicial review of that decision, Courtney J in the High Court decided that there were “exceptional circumstances” and ordered that the respondent be released on bail.

[5] Under international law the decision whether a non-citizen may remain in New Zealand is the sole prerogative of the executive. That is, in general, also the domestic law of New Zealand. An often-cited statement (see R (on the application of Saadi and others) v Secretary of State for the Home Department [2002] 1 WLR 3131 (HL) at 794 –
795) is that of Lord Atkinson, giving the decision of the Privy Council in A-G for Canada v Cain, A-G for Canada v Gilhula [1906] AC 542 at 546:

[6] The allusion is to the elected government, which has plenary authority to admit immigrants to the country. It is only when statute otherwise provides, as in the case of
successful applicants to the Removal Review Authority (ss 47 - 52), that the executive’s decision is not final. So the crucial question is the meaning and effect of s 60 in its amended form.

[7] I have reached the conclusion that the learned District Court Judge erred in extending the warrant of commitment. Because of the way the legislation was read in the
District Court and the High Court, as in this Court, the parties confined their submissions to the concept of “exceptional circumstances” in the new s 60(6). As a result those Courts did not recognise the significance of the concepts of “unreasonable period” and “public interest” in s 60(3) which are imported in the present class of case by the new s 60(6A)(a)(ii). Courtney J was however right to grant relief on the exceptional circumstances ground.

[8] The other members of this Court are of a different opinion as to whether the concepts of “unreasonable period” and “public interest” in s 60(3) apply to persons falling
within subs (6). In my view the plain language of subss (3) and (6A)(a)(ii) says that s 60(3) does apply. The other members regard subs (3) as inapplicable, despite the language, because the amendment to meet the Mohebbi decision introduced the “exceptional circumstances” test for persons falling within subs (6); that, they consider, is inconsistent with the continued application of subs (3). They say, in short, that Parliament has made a mistake and we should read the section as if the reference to subs (3) were deleted.

[9] My view is that, since Parliament has stated that subs (3) as well as subs (6) applies, and since such construction can be adopted consistently with Parliament’s expression of its purpose, both subsections must be applied by the Court. This construction also accords with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act) and the principle of legality. Moreover if doubt existed as to what that purpose is, it must be resolved in favour of the common law presumption in favour of ability to apply for bail, which under the Immigration Act is preserved even for terrorism suspects and others who threaten national security. Bail conditions are devised to ensure that due process of law is followed. If the Crown’s continued attempts to reach agreement with Iran succeed, such conditions should ensure that the respondent remains available to be removed from New Zealand.

Background facts

[10] The respondent arrived in New Zealand on 1 October 2003, whereupon he destroyed his Iranian passport. This fact, and the fact that he declines to apply for a replacement, is central to the case and must be set in context. Such conduct, like the use of a false passport, may in the case of a bona fide refugee status claimant have reduced moral and sometimes legal significance: see R v Asfaw [2008] 2 WLR 1178 (HL) approving R v Uxbridge Magistrates’ Court, ex p Ademi [2001] QB 667 (QB), followed in Ghuman v Registrar of the Auckland District Court [2004] NZAR 440 (HC). There is at present no agreement between New Zealand and Iran by which the respondent could be removed there without his consent. While New Zealand has been negotiating with Iran to alter its policy of refusing entry to its citizens if they do not hold a passport, there is no evidence of likelihood of any change in the foreseeable future. As a Christian convert, the respondent believes that to return to Iran would expose him to risk of death and he therefore declines to apply for a passport. The relevant New Zealand authorities, including Judges of the District Court and of the High Court, accept the honesty of his belief.

[11] On his arrival in October 2003, the respondent applied for refugee status on the ground of political persecution. The application was declined by the Refugee Status Branch of the Department of Labour (the RSB) and an appeal to the Refugee Status Appeals Authority (the RSAA) was dismissed. While the respondent’s credibility was accepted by the RSAA, which found that he might suffer difficulties in Iran, the ground of well-founded fear of persecution was not established.

[12] Following his conversion to Christianity, the respondent made a second application, based on fear of religious persecution. The application was rejected by the RSB and the RSAA. An application to the High Court for judicial review of that decision was dismissed. A third application to the RSB and to the RSAA was dismissed as showing no change of circumstances.

[13] An application to the Removal Review Authority was also dismissed and the dismissal was sustained on application to the High Court for judicial review. Applications
to the Minister of Immigration seeking a special direction in favour of the respondent under s 130 were also rejected.

[14] On 2 November 2004 the respondent was served with a removal order and taken into custody at Auckland Central Remand Prison where he remained under successive warrants issued by the District Court. After delivery of Courtney J’s judgment on 4 April 2007 he was released on conditions fixed by the District Court. Those included residence at a stipulated address, a curfew between 7 pm and 7 am, and reporting to the police three times a week.

[15] The 29 months in custody took their toll on the respondent. A psychiatrist reported in July 2005:

[16] The High Court Judge stated:

The immediate legislative scheme

[17] When he was served with a removal order, the respondent became liable to be removed from New Zealand under Part 2 of the Immigration Act (ss 53 – 4).

[18] It is necessary to reproduce the essential sections. I have italicised relevant provisions and underlined those of special importance. I have added in bold certain words
and numbers. Since the factual and legal setting for the analysis must be provided, their discussion is deferred to [66] – [69].

[19] The general purposes of arrest and detention under these provisions are stated in ss 59(2) and 60(8): to execute the removal order by placing the person on a craft leaving New Zealand and to achieve a high level of compliance with immigration laws. The specific purpose of subss (6) – (7) is to impose an incentive on the person to conform with the immigration laws.

[20] Parliament contemplates by ss 59(3) and 60 that removal will normally take place within a 72-hour period. Close judicial control of the statutory processes is stipulated. If removal within such period is not practicable (s 60(1)(c)) the person must (unless released, an option not generally considered appropriate in cases falling within s 60(6)) be brought before a District Court judge for the purpose of obtaining a warrant of commitment (s 60(1)).

[21] Subject to s 60(6), a judge may issue a warrant if the person is not able to leave New Zealand within 72 hours, but not if the inability will extend for an unreasonable period (s 60(3)(c)), unless it is in the public interest to make a warrant of commitment (s 60(3)(d)). Warrants are generally for no longer than 7 days (s 60(2)) with a maximum of 30 days at a time (s 60(6A)). And, again subject to s 60(6), where a person who is unlikely to abscond comes before the judge on a second or subsequent occasion, the judge may order the person’s release subject to appropriate reporting and other conditions. Except in cases falling within s 60(6), no one may be detained for a consecutive period of more than three months (s 60(7)).

[22] Subsection (6) however provides an exception to the limitations on issue of warrants and on the court’s powers to order release from detention. A judge may not order release under subsection (5) if:

Unless there are exceptional circumstances that justify the person’s release.

[23] There can be no doubt that the respondent’s continued refusal to apply for an Iranian passport constitutes “some action or inaction by the person occurring after the removal order was served” and is “a direct or indirect reason for the person being unable to leave New Zealand”.

[24] Before proceeding further it is necessary to dispose of a difficulty arising from the way the legislation is drafted. If it is clear that deportation within 72 hours will not be
possible, looking at s 59 alone it is arguable that there is no power of arrest under that section. It could be said that the purpose of arrest and detention under s 59(2) is confined to execution of the removal order by placing the person on a craft that is leaving New Zealand within that time. Such reading is supported by s 60(1) which permits the issue of a warrant “where a person is arrested and detained under section 59 and it becomes apparent that … it is not practicable for the person to be placed on a craft within the 72-hour period” (s 60(1)(c)). It is also consistent with a reading of s 60(2) that the authorised detention is “for a period of seven days … to enable the execution of the removal order”, ie removal within seven days must be in contemplation.

[25] But ss 59 and 60 are to be read as a whole, which includes s 60(6). That makes plain that a person may be under detention and unable to leave New Zealand because of some action or inaction on his part after the removal order was served. It follows that the textual argument in [24] cannot succeed. Section 59(2) is not to be confined to the case where the person will be removed within 72 hours but extends to cases where that is not possible. On such reading, s 60(1) is not limited to the case where it became apparent after arrest and detention that it is not practicable for the person to be removed within the 72 hour period. Rather it extends to cases where it becomes apparent at some other stage, as after service of the removal order in terms of subs (6)(a). Likewise s 60(2) may be read to authorise the detention either for a period of seven days (if removal is not imminent), or for a shorter period (if it is). The alternative to such construction would be to deprive subs (6) of effect, which is a conclusion the Court will decline to reach if, as in this case, another option is reasonably available.

[26] Once that construction is adopted there is, at first sight, no difficulty in operating the successive stages as argued by the parties and accepted in the lower Courts. This is also the construction preferred by the other members of this Court.

[27] But as is apparent from the difference of opinion in this Court the scheme is in fact more complex. To explain it requires further detail of the parties’ submissions, of legal principle, of fact, and of New Zealand’s policy concerning imprisonment.

The submissions

[28] The Deputy Solicitor-General contends for the Crown that Courtney J erred in directing the respondent’s release because there are no exceptional circumstances in this case. He submits that there is nothing exceptional about a person’s failure or refusal to sign a passport application which would enable his removal from New Zealand; rather it is a deliberate policy adopted to resist the operation of the law which imposes an obligation to leave New Zealand. Nor, says the Crown, can simple passing of time ever fall within the concept of exceptional when it is open to the person imprisoned to bring the detention to an end at any time, by signing the passport application and there is the prospect of removal proceeding as a result of diplomatic negotiations. So the case falls outside the s 60(6) ground on which release from detention is permissible. There is no other justification for release. This Court should therefore allow the appeal and return the respondent to detention.

[29] Mr Ryken for the respondent submits that Courtney J construed and applied the law correctly. The learned Judge stated:

Tools of interpretation

[30] The Courts have at their disposal a range of tools for interpreting legislation that is susceptible of more than one meaning. First, Parliament has directed the Courts when construing legislation to consider both its text and its purpose (Interpretation Act 1999, s 5). Second, Parliament has directed the Courts to prefer an interpretation that is consistent with the rights and freedoms contained in the Bill of Rights Act where such a meaning is available (Bill of Rights Act, s 6). Third, recourse may be had to settled common law principles of statutory interpretation, which include the principle of legality and the principle of proportionality.

[31] In the present case, the issue arises as to the correct application of the procedures in s 60 and, on my reading, we are required to give meaning to concepts of “unreasonable period”, “exceptional circumstances” and “public interest”.

Text

[32] Under s 60(3) a person may be kept in detention as long as the detention will not be for an unreasonable period or it is in the public interest to continue the detention. As earlier noted, in considering whether these criteria are satisfied, regard must be had to the stipulation that a person caught by s 60(6) may not be released unless there are exceptional circumstances.

[33] The definitions of the three material expressions are indeterminate. Parliament has refrained from setting time frames for the operation of s 60(6) and it is not our task to do so. The rule of law requires that laws be as clear and predictable as practicable (see John Finnis Natural Law (1980) at 270). But as Jeremy Bentham observed in his “Theory of Legislation” (Etienne Dumont edition translated and edited by CM Atkinson, 1914) at 62:

[34] It is neither practicable nor desirable for us, in the context of a single appeal, to seek to give a ruling as to the precise meaning of “exceptional”, “reasonable” or “public
interest”. In this judgment I will consider only whether the particular circumstances of this case fall within those broad concepts.

The Bill of Rights Act and the principle of legality

[35] Section 6 of the Bill of Rights Act requires that legislation be interpreted so as to give effect to the rights and freedoms contained in that Act. Similarly, the principle of
legality requires that the law be applied consistently with fundamental human rights. In a celebrated passage in R v Home Secretary ex parte Simms [2000] 2 AC 115 at 131 (HL) Lord Hoffmann stated:

[36] It is therefore to be assumed that, when it enacted s 60(6), Parliament did not intend to infringe fundamental liberties. That conclusion is supported by its use of the terms “exceptional circumstances” and “unreasonable”. While, as the President explains (at [258], see also O’Regan J’s discussion at [195] – [197]), the “exceptional circumstances” test has been held to be exacting when the right to trial by at least 11 jurors is lost (Rajamani v R [2008] 1 NZLR 723 (SC) and Wong v R [2008] NZSC 29), the approach used in those cases in favorem libertatis is not to be applied in reverse. On the contrary, in cases where the exception would affect personal liberty a more generous approach is adopted. In R v Kelly [2000] QB 198 (QB) where the Court of Appeal construed legislation requiring it to impose a mandatory life sentence unless there were exceptional circumstances, Lord Bingham of Cornhill CJ said (at 208) that “[w]e must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art.” That decision was followed by the Supreme Court in Creedy v Commissioner of Police (2008) NZELC 99,336 at [32] (discussed by O’Regan J at [198]). Here, where s 60(6A) imports the reasonableness test of s 60(3), “exceptional” naturally bears the first meaning in the Oxford English Dictionary: “out of the ordinary course, unusual, special”.

[37] The next question is which rights are implicated in the current case. Two are potentially relevant. The first is the right to liberty of the person, formulated in the Bill of
Rights as the right not to be arbitrarily arrested or detained (s 22). The second is the right not to be subject to cruel or disproportionately severe treatment, identified in s 9 of the Bill of Rights. Each of these rights must be construed using both the language of the Act and the common law (s 28 of the Bill of Rights Act states that existing rights or freedoms shall not be restricted by reason only that they are included only in part).

[38] As to liberty of the person, the Bill of Rights and the principle of legality require us to presume that Parliament did not intend to authorise arbitrary detention. The focus must be on the term “arbitrary”, rather than on the idea of lawful detention, otherwise the right would be substantially diluted. In van Alphen v The Netherlands Comm 305/1988 23 July 1990 (UNHRC) cited in R v Goodwin (No 2) [1993] 2 NZLR 390 at 393 (CA) it was accepted that “arbitrary” included not merely concepts of unlawfulness, but also “inappropriateness, injustice and lack of predictability.” In a similar vein, Thorp J in Clarke v Police HC AK AP208/95 11 October 1995 at 8 defined arbitrary as “unreasonable, unnecessary or unprincipled.”

[39] It follows that by the terms “reasonable” and “exceptional circumstances”, Parliament intended to preserve the right to be free from detention that is inappropriate,
unnecessary and unpredictable.

[40] It could be only in the most unusual of circumstance that detention for a period that is unreasonable could nevertheless be in the public interest.

[41] As to the right not to be subjected to treatment that is disproportionately severe, the standard by which that is to be measured is that treatment be “so severe as to shock the national conscience”: Taunoa v Attorney-General [2008] 1 NZLR 429 (SC) at [289]. Reasonableness is a less exacting test. Here there are no findings as to the conditions likely to have been experienced by the respondent in detention, beyond the evidence that he was seriously assaulted and of there being some effect on his mental health.

Context

[42] Because the words of the statute are indeterminate, we must look at the context in considering how they should be understood. I begin with certain criminological materials which illuminate the nature of imprisonment. I then move on to discuss the local legal context. (The approach in other jurisdictions is sketched in an appendix to this judgment at [134] – [162].) Once this background is in place I return to analyse the words of the legislation in the light of the Interpretation Act, the Bill of Rights Act and the common law principles of statutory interpretation.

New Zealand imprisonment policy

Criminology and the criminal law

[43] Imprisonment is now the most stringent form of punishment known to the law of New Zealand. As the Supreme Court stated in Zaoui v Attorney-General [2005] 1 NZLR 577 at [52]:

[44] The importance of the basic right to be free from detention is evident in New Zealand’s legislation as from principles of the common law. Before moving to discuss the legal framework, I mention some academic literature.

[45] Deprivation of liberty is used as a common form of punishment of those who have committed grave crimes. In A Rage to Punish (1994) Lois G Forer, an American trial judge for 16 years, records the lack of general public awareness of what happens inside prison walls (at 74). He urges consideration of the need for imprisonment of non-violent offenders (at 95), which carries by necessary implication the need to justify the length of any prison term. An analogous theme is advanced by Professor McSherry of Monash University in her essay “Sex, Drugs and Evil Souls” (2006) 32 Monash Law Review 237 at 269, discussing the principle nulla poena sine lege - that punishment should be confined to cases of criminal conduct.

[46] In “Imprisonment: An expanding scene” Maguire, Morgan and Reiner (eds) The Oxford Handbook of Criminology (4ed 2007) 1110 Rod Morgan and Alison Liebling say at 1107-1108:

The purposes of detention under s 60

[47] I consider that the purposes of detention under s 60 must be custodial (to facilitate deportation) and coercive (to encourage the recalcitrant to sign). These immediate purposes both contribute to the ultimate purpose of securing the respondent’s removal from New Zealand. This being a civil and not a criminal procedure, I do not consider that punishment of the recalcitrant for refusing to sign, or indeed (beyond what is inherent in the coercive) to deter others, is a legitimate purpose. While deterrence can be an important element of the criminal law, quite explicit language would be required to justify civil detention in order to dissuade others. Properly, the Deputy Solicitor-General did not seek to justify continued detention on the basis that s 60(8) contains a purpose of ensuring compliance by others with immigration law.

[48] While Parliament has accepted the need for detention in cases coming within s 60(6), such considerations bear on whether the term of the detention is longer than for “a reasonable period” and also on what is in the public interest. They are also relevant to understanding when detention would fall within “exceptional circumstances that justify the person’s release.”

Custodial sentences in New Zealand

[49] The insistence in the criminological literature on viewing custodial sentences as being of the most serious character is echoed in the New Zealand legislative context.

(i) The Sentencing Act 2002

[50] Parliament’s intentions with regard to the role of imprisonment in New Zealand’s penal system are most evident from the Sentencing Act 2002. Section 10A sets out the hierarchy of sentences and orders that may be imposed, from the least restrictive to the most restrictive:

[51] Section 8(g) of the Sentencing Act requires the Court to impose the least restrictive outcome that is appropriate in the circumstances in accordance with this hierarchy.

[52] That there is an emphasis in the criminal arena on imposing the least restrictive outcome is an important indicator when assessing detention in the administrative arena, as in the case of immigration detention.

(ii) The Bail Act 2000

[53] After sentencing, bail is one of the key areas where the law must deal with the propriety of imprisonment. In Zaoui the Supreme Court confirmed the inherent authority of the High Court to grant bail in all cases, civil and criminal, where someone is detained. The inherent jurisdiction by its very nature protects the basic liberty of the individual to be free from detention, even if on a conditional basis.

[54] The Courts are well accustomed in the most serious criminal cases, including murder, to the exercise of jurisdiction under the Bail Act 2000 which sets out the public
interest considerations. They include:

[55] The statutory scheme is consistent with the principles of the common law, each of which keeps a careful and proportionate balance between the competing public interests of protection of the public and avoiding unnecessary detention.

(iii) The Immigration Act 1987

[56] In accordance with conventional New Zealand standards I take the scheme of the Immigration Act to apply as far as practicable the principle that imprisonment is limited to cases of practical necessity. For example, where there is an obvious flight risk and perhaps other risks in relation to persons whose eligibility for a permit is not immediately ascertainable, custody may be appropriate. Section 60(6) applies that principle to the removal of those who fall within it.

[57] The Supreme Court in Zaoui at [48] recounted the various regimes for bail and conditional release provided by the Immigration Act. The Court found that the scheme of
the Act did not reveal a consistent approach to detention in immigration cases (at [49]).

[58] Under Part 6 persons whose eligibility for a permit is not immediately ascertainable may not be granted bail (s 128B(15)). However, in such a case the detention must be reviewed if no determination has been made after 28 days and every seven days thereafter (s 128B (9) and (10)). If a determination is made that the permit should be refused, the person must not be granted bail but may be conditionally released from detention (s 128(15)) unless they are caught by s 60(6). Under Part 3 even persons threatening national security and suspected terrorists must be brought before the District Court within 48 hours and may be released on conditions pending deportation (s 79(1)(b)(ii)).

(iv) Appropriate lengths of imprisonment

[59] The laws of sentencing, bail and immigration detention all reflect the fundamental proposition that deprivation of liberty in the form of imprisonment is a serious matter, but that it is appropriate in some cases. It is therefore instructive to take into account the type of cases in which imprisonment similar to what the respondent has undergone have been considered appropriate.

[60] The respondent has served 29 months in detention. Statistics produced by Soboleva, Kazakova and Chong Conviction and Sentencing of Offenders in New Zealand: 1995 to 2005 (Ministry of Justice, December 2006) recording sentencing statistics in New Zealand contain the following results at 71 and 89:

Solicitors for appellant:   Crown Law Office (Wellington)
Solicitors for respondents:  Ryken and Associates (Auckland)