Treatment of 501 deportee is unlawful and breaches human rights – High Court

A 501 deportee had several human rights breached by the Government and his treatment was unlawful, the High Court has found.

Two thousand people have been deported from New Zealand to Australia since 2014 under s 501 of Australia’s Migration Act 1958, giving them the name “501” deportees.

G, as he was called in the judgment, was deported from Australia in 2019 after serving five years in prison in New South Wales for supplying drugs. He represented himself in the court case in Wellington.

He had lived in Australia since 1997, when he was 11 years old. All of his family members live in Australia.

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The judgment, delivered by Justice Cheryl Gwyn in the Wellington High Court, found that the deportee’s treatment as a 501 returned prisoner from Australia breached the right to natural justice, freedom of movement, and to be free from unreasonable search and seizure.

Additionally the government had breached the prohibition against retrospective penalties and double jeopardy.

New Zealand law allows the Government to apply strict parole-like conditions to returning offenders, and was passed to deal with deportees from Australia like G. It applies to anyone returning from another country after serving a year or more in prison, within six months from when they were released from custody.

But the court found the conditions imposed on the deportee when he entered New Zealand were an additional punishment, on top of the prison sentence he had already served in Australia. The deportee also had a right to have his views heard by the commissioner, when the commissioner made a decision that he was a returning prisoner.

“The consequences of being determined to be a returning prisoner … amount to an ongoing intrusion into all aspects of a person’s private life for the duration of the conditions and indefinitely in respect of identifying particulars and bodily samples,” the judge decided.

The Commissioner of Police’s declaration that the deportee in this case was a returning prisoner was unlawful and quashed by the judge. The Commissioner was also instructed to remove the deportee’s fingerprints, photographs, and DNA which were collected when he arrived in New Zealand.

The deportee had not asked for compensation for the breach of rights in this hearing, but a further hearing was possible to determine compensation, the judgment said.

Advocate Filipa Payne, from a group advocating for 501 deportees called Route 501, said she was “delighted to read the judgment”.

“It shows that for seven years, the government has been breaching the human rights of 501 deportees.”

She said the decision could potentially apply to hundreds of other ex-prisoners who have been deported to New Zealand after the end of their prison sentences in Australia.

Instead of being met at the airport by support as they arrived in an “alien country”, ex-prisoners returning from Australia were met at the border by police who took fingerprints and samples of their bodily fluids, Payne said.

“We criminalise them as soon as they’re on our shore.”

They were then subjected to strict probation conditions and placed in emergency housing, in a “punitive regime”.

“We want people to be rehabilitated and supported. The Government should amend the legislation and stop breaching human rights from today,” she said.

A spokesperson for Police said they were “considering the implications of the judgment” along with the Department of Corrections – Ara Poutama Aotearoa and Crown Law.