New Zealand Supreme Court Cites Hickman

19 December 2024

GCDC member Professor Tom Hickman’s work has been cited by the Supreme Court of New Zealand in a judgment delivered on 19 December 2024. Among other things, the case invited the Court to determine (a) whether the extended supervision order (ESO) and public protection order (PPO) regimes in New Zealand are consistent with the New Zealand Bill of Rights Act 1990, and if not, (b) whether those rights are justifiably limited in accordance with section 5 of the Act.

On the first issue, the Court found that the PPO and ESO regimes are inconsistent with section 26(2) of the 1990 Act, which protects individuals from receiving a second penalty relating to an offence for which they have already been punished.

On the second issue – justifiable limitation of rights – the Court extensively discussed the structured proportionality assessment laid down in R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. The third step in that assessment asks, ‘Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?’

In discussing this question, the Court (at para 212) made reference to Professor Hickman’s statement that the question of proportionality will usually involve asking ‘whether it is fair for individuals to bear a more significant interference with their rights where a less intrusive alternative measure could be taken, having regard to the added costs that would be entailed in taking that alternative measure (if any)’. Ultimately, the Court concluded that certain limitations imposed by the PPO and ESO regimes are not justified, as less rights-intrusive alternatives could have been adopted.

Professor Hickman’s statement, which was quoted by the Court, appears in his Public Law after the Human Rights Act (Hart Publishing, 2010). The book explores the relationship between human rights principles and public law doctrines, and how this relationship has been affected by the Human Rights Act 1998 in the UK.