Returning Offenders (Management and Information) Bill

I move, That the Returning Offenders (Management and Information) Bill be now read a second time. In this slightly unusual situation, where we are having the second reading immediately following on from the first reading, I do not propose to do what I would normally do in a second reading debate and go through in some detail a number of the matters that I set out in my first reading contribution. Instead, what I want to do is take the time to expand further on some of the rationale for the structure of the bill and the way it will operate, to provide the House and anyone following this debate with a little bit more context around that. Then I do want to touch on some of the allegations that have been made around what is perceived as delay, and I can assure the House that there absolutely has not been.

So if we start with the operation of the bill, I said in my first reading contribution that the bill is about trying to replicate as closely as possible—and I do not pretend that it is an exact replication—the sort of supervision and management of offenders that they would likely have been subject to if they had served the same sentence in New Zealand. The reason it is not an exact fit, and the reason that it has been very complex to work through these policy matters, is that, of course, you are dealing with a regime that needs to apply in a blanket way and yet be very careful to not traverse unfairly on the rights and the provisions of natural justice and the rule of law in respect of the returning offenders; have the right sort of oversight in place; and also provide the flexibility to seek additional specific conditions when that is needed, in the absence of the mechanism that is normally used in New Zealand, which is the Parole Board.

So it is very easy, I think, at this stage, when all that work has been done, to look at the framework and say: “Well, you know, you could have banged that out sooner.” But the reality is that we were having to spend far too long—far too long, actually—negotiating with Australia to get the right information, so we could assess the type of people coming back; the risk profile; the sort of information that anyone who has been a Minister will understand you absolutely must have before you can work through any of the processes the Cabinet Manual requires around quantification of the impact of the changes you are proposing and the cost of them; making sure we had the budgetary provisions in the Cabinet paper to make sure it was adequately resourced; and getting all of the appropriate components that you have to be able to certify, as a Minister, when you are bringing proposals for a new policy to Cabinet and then to this House. To do all of that, as I say, it was a matter of working with corrections and with police, but they really could not even begin to do their work until Australia had stepped up and provided us with this information.

I have said publicly, and I will say here again in the House, that I am disappointed that we, as a close neighbour and for a long time a close friend of Australia, found ourselves in the position where the impact on New Zealand was brought to my attention first in February of this year. What that meant was that New Zealand found itself starting from a completely cold start once the law was already in operation. That is not ideal, that is not the way that we expect to deal with Australia, but that is the position we were in—that is the position I was in.

I think we responded in an absolutely timely way. My officials have confirmed that the first advice that ever came in front of me—it was certainly not mentioned in the briefing to the incoming Minister; it was not mentioned in any briefings at the time—was on 12 February. At that point I instructed them to begin work immediately on this framework. The suggestion that some members of this House have made that somehow that is all just a bit of precursor fluff and the work actually starts when you start drafting, I think reflects a lack of understanding of the process. Drafting is the end of the process.

I want to commend and pick up on the comments that my colleague Chris Bishop made when he commented on the section 7 New Zealand Bill of Rights Act report by the Attorney-General. I would say this, but I think he is absolutely right. These are issues that could so easily have gone one step too far in terms of the New Zealand Bill of Rights Act issues, or, equally, one step too light in terms of protection. We have ensured that we did everything we could to land it in an appropriate place. Yes, the bill has continued to evolve, particularly with the news that came through to us in the last few days around this large number of offenders who are on their way back, where Australia has not given us advance notice and has not given us a lot of lead time with the information. That information has been followed up on. Given that that is now a new development in the way these processes are flowing—and it was certainly not mentioned in any of the briefings—we have continued to make sure that that is as tightly provided for in the bill as we can.

I mentioned that the bill, effectively, replicates a parole framework. What that means is that if you have been—not you. If the offender—sorry, Mr Assistant Speaker; it certainly would not be you. If the offender has been released from custody in the overseas jurisdiction—and can I just get on record, very clearly, that although a lot of the debate is around Australia, and that is absolutely the source country for the vast majority of the people whom this bill will touch, it is not the only country. This bill applies to anyone deported to New Zealand, from any jurisdiction—we just have to bear that in mind. The framework applies when the offender is released within 6 months of their return and released from custody, and that definition of “in custody” very clearly also covers any time they spent in detention centres.

The reason for that is that what these conditions are about, whether they are applied in New Zealand or under this bill, is helping to oversee the highest-risk period for an offender, which is the time when they are first released from prison. The longer they have been in prison, the harder that reintegration is, and therefore the longer the monitoring tends to occur. It is not a punitive attack on the offender; it is about making sure that someone who has been in an institution and under very strict rules for a long period of time is carefully monitored and watched for offending behaviours and for the assistance they will require as they reintegrate. If someone has served an offence in Australia, for instance, and has been living and working and going about their business in Australia for some time, it would not be appropriate to then turn round and impose those sorts of oversight conditions. If, however, they have only recently been released, then we absolutely need to be tracking that sort of behaviour.

The bill then goes on to provide that there is recognition that, although we have an automatically applying framework, some offenders will require a more directive, more restrictive set of conditions. Their offending will justify that. In that case, the conclusions that I reached through that policy development process were that it would be quite inappropriate to try to provide for that in this legislation. The risk of getting it wrong, one way or the other, was simply insurmountable. So what the bill provides is that in that instance there are whole new powers to go to the District Court, and have the District Court act in lieu of a Parole Board to make the case by case assessment as to when those additional, more restrictive conditions are required.

The final piece is the collection of information. I want to pick up on the comments Metiria Turei was making in the first reading around the definition of “identifying particulars”. We did have a good discussion, for which I thank her, on this point. She had picked up a concern that I was also considering at that time, which was just saying—had that actually gone too far? Had the information that the police had asked us to provide for—was it too much, in that they did not need it? Actually, I felt that it was a fair point. We went back and looked at it, and agreed that actually narrowing that down to the definition in the Policing Act was appropriate. But let us not cast aside how critical it is that we have that information. There is every prospect that as offenders are returned to New Zealand, and we get their biometric details and the like, we might find some cold cases, unsolved in New Zealand, now resolved. We do not know that, but I would not be the slightest bit surprised if that is the case. It certainly means that that information will be held in the same way it would be if they had been serving sentences here.

The last point I want to make in this contribution is just really to inject a little bit of a calm note, I guess, into what has become at times—not in this House, where I think the debate has generally been reasonably constructive—but actually in some of the media commentary there has been a degree of almost hysteria. Let us remember that we release people from our prisons in New Zealand every single day. These are people, whether they have served their sentence in New Zealand or Australia, who have been sentenced and have served their sentence, and, actually, in our system of justice and in most systems of justice around the world, when you serve your sentence you return to the community. That is the reality.

So all this hysteria about “There’s murderers walking around. There’s rapists walking around.”—actually, every single day we release from New Zealand prisons people who have committed serious offences. These people are in the same category. So let us not overblow this. Let us not suggest that somehow the public should be battening down the hatches. It is actually still a relatively small number of people, compared with the New Zealand population, and the same sort of people, and the same sort of conditions that happen in New Zealand. Yes, it is important that we have a commensurate regime in place, but let us not suggest that somehow the bogeyman has landed and it is the beginning of the end. We need this legislation, but I think some of the hysteria from some quarters of the media has been unhelpful. With those words, I commend the bill at its second reading.

I want to respond to an issue that has come up across the House during the initial first reading of this bill. That question has been that we somehow, as a party, are not able to critique the speed of this legislation and the timeliness of it because we have had offenders from Australia deported into New Zealand under a Labour Government. We also had Australian offenders deported here to New Zealand under a National Government before that. No one has ever argued that we have not had a regime that allowed, legitimately, New Zealand citizens to be deported to New Zealand. What has changed under this Government, in recent times, is that an amendment was made to Australia’s immigration Act that has led to a significant increase in the number of people being deported here—significant. In fact, from what I have seen, it is up to five times per month the number of offenders than we have seen in the past. So the scale has changed significantly.

The second thing that has changed is that, finally, New Zealand was able to negotiate an information-sharing arrangement, which allowed a monitoring regime to be put in place—pretty critical if you are going to undertake this piece of work. Things are not the same as they were 7 long years ago, when Labour was in Government, so I think it is probably not necessarily the legitimate point of debate that members on the other side of the House would like it to be.

Like the Minister Amy Adams, I think this is an unusual second reading speech, given that it is immediately after the first reading. Usually at this time we would have a conversation about the changes that have been made at a select committee. I want to use this opportunity to just highlight, again, that it would have been useful if we had—as Metiria Turei and as David Parker have mentioned—a dual-track process that would allow this stopgap law to be put in place, but we allowed for parliamentary consideration and a new regime to replace this law in a year’s time. If you look at the regulatory impact statement—under external consultation, 3.6: “In the time available only New Zealand Police, the Department of Corrections, and Crown Law were consulted on drafts of this bill.” I know, given the short time frame—we were being consulted right up to this morning on some changes—that that consultation would have been relatively rushed. There was no Law Commission, no Law Society, no Parole Board, no PILLARS—groups that always bring to the table substantive and useful arguments and critiques of this kind of legislation. Again, I want to make that point: we still could have been debating a dual-track process, the public still could have had their say, and that would have been highly desirable.

I want to use my second reading speech, though, to highlight some of the issues that we are likely to spend a bit of time critiquing in the Committee stage, the first of which is the fact that we will keep making references to detention centres, despite the discussion between the member Kelvin Davis and the Deputy Speaker in the first reading where the Deputy Speaker requested that we stop referring to detention centres. I would like to point out to the Deputy Speaker that under clause 17(3) of the bill, there is reference explicitly to immigration facilities, because for the purposes of this bill they count as incarceration. And, as defined by the Minister, individuals who are released from prison and have 6 months outside of prison custody technically should not have elements of this bill apply to them, unless that 6 months includes a turn in a detention facility. And why? It is because you are not, therefore, mimicking someone who is reintegrating into a community, because you are still incarcerated. A detention facility is incarceration. Therefore, it has the dual act of meaning that your liberties are removed from you for longer, and the double whammy of meaning that you will be monitored for longer as a consequence. And yet you have absolutely no control over that period of incarceration. So it is a dual injustice, as it were, in terms of how this bill would then apply to you. So we think it is absolutely right that we are able to talk about incarceration in detention centres as part of this legislation, and what defines, of course, that incarceration, and what people are enduring in those facilities.

The second issue that we will be drawing on in the Committee stage is the appropriate application of the law as it relates to the gathering of offenders’ information. I want to thank other members who have raised instances, in the development of this bill, anywhere in the legislation where we have seen the law go beyond what we would consider to be reasonable. Our bar for what is reasonable is what we have already passed through due and thorough process in the New Zealand Parliament already. So if we are, for instance, putting in place a regime that is more stringent in terms of who is required to give a bodily sample that goes beyond our existing bodily samples legislation, then we would consider that to be unreasonable. If it asks for the police to gather more information than would currently be the case for someone who was being paroled, we would consider that to be unreasonable. And that is where we need to critique as well. The legislation sets out the time for which a person could be detained in order to hand over those samples and hand over that information. Again, we need to check that it mirrors exactly requirements in the current existing New Zealand law, because at least that law has gone through a thorough process.

It is probably right to point out that I am advised that where the New Zealand Bill of Rights Act vet falls down is around bodily samples, and that that is because of existing bodily samples legislation having failed that New Zealand Bill of Rights Act vet when it initially went through. But, again, that is something we will be looking at during our second reading.

The third point that we will be focusing on during the Committee stage is the dual regime that is set out in subpart 2 of the bill, because this is where the bill applies to both sets of categories of individuals—returning offenders and returning prisoners. Our concern is that between those two groups there is the potential for some gaps to emerge, and that those gaps, actually, could emerge at the higher end of offending rather than the lower end. And I want to just delve into that a little bit now. For instance, in the bill under clause 16, it defines who is a returning prisoner: “A returning prisoner is a person who has been determined by the Commissioner to be a returning prisoner in accordance with the criteria set out in section 17.” Clause 17 then goes on to define that “The Commissioner must determine that a person is a returning prisoner” if they have “(a) … been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and (b) has, in respect of that conviction, been sentenced to (i) a term of imprisonment of more than 1 year;” or cumulatively more than 1 year, and “(c) is returning or has returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.” Then it goes on, for the sake of clarity, to point out that custody does indeed include immigration facilities.

So we have here a default regime. Basically, if you are in prison for an offence of a certain period of time and you come out, you are immediately stuck in a detention centre, and then you are shipped to New Zealand, automatically you will have a monitoring regime applied to you. What if, however, you are released into the community for 6 months and then come out? You could have a life sentence and be in that category. Well, then we are reliant on the regime that applies to returning offenders. That regime requires the Department of Corrections to make an application within a specified period of time to the courts to have your parole conditions as they were in Australia—to apply to have a similar regime to apply to you here in New Zealand.

We are relying on the department to be quite spry under these circumstances, and it could well be that those whom we wish them to be spry about have committed a range of offences that we would consider to be high end. We know from the information that we have seen in the regulatory impact statement that, for instance, we have already had since 2013—15 percent have been offenders with rape or sexual assault offences, and 5 percent with murder and manslaughter. And, yet, how many extended supervision orders has the Department of Corrections applied for when for the last 2 years we have had people in those high categories—how many? Not one. So we will use the Committee stage to delve into whether or not a system that is relying on a department that is struggling will deliver the outcomes that New Zealanders desire.

In this second reading speech I just really want to briefly reaffirm that this Returning Offenders (Management and Information) Bill gives authorities the power to assess—so they have the power to assess returning offenders—and to supervise those who are returning to New Zealand, most of them coming from Australia.

What this bill does is it strengthens the oversight of deported offenders as they come back to New Zealand. Why do we do that? We want to protect New Zealanders. We also want to continue this Government’s very strong move towards successful reintegration back into New Zealand’s society if it is the case that these offenders will be staying in New Zealand. It brings them into the same monitoring and parole regime experienced by New Zealand - based offenders who have committed a similar crime. That is why I am a little sceptical about the objections we have heard so far from some Opposition members around the fact that this bill is passing through all stages under urgency. There are no extra parole conditions, no extended supervision conditions, no extra conditions being promulgated by this bill. What it is doing is capturing, if you like—pardon the phrase—those offenders who hitherto have been returning to New Zealand and are largely, except for those who get caught up under the extended supervision orders regime, unsupervised, and that is of concern to us all.

So if I look very briefly at clause 37 of the bill, which looks forward to the review by the Justice and Electoral Committee of the day in 2 years’ time, I think that rather than having two bills—one with a sunset clause and then working away on another bill—a review after 2 years is eminently sensible. Given the fact that this bill is confined to not changing parole conditions and supervising conditions but rather expanding the net, protecting more New Zealanders and, hopefully, reintegrating more returning offenders, I think this mechanism is eminently sensible. I think the Justice and Electoral Committee of the day will give a lot of thought as to how best to evaluate and, if necessary, make improvements to this legislation. Thank you.

I would just like to take over from where the previous speaker, Jacqui Dean, left off with the review by the Justice and Electoral Committee in 2 years’ time. What the member is in effect saying, and what the Minister of Justice was in effect saying, is that they are going to trial law for 2 years. That is not the role of Parliament—to test law out and to trial law out. You either make law that works, or you do not make it at all. I think it is silly to say: “Let’s just try this law, let’s just put it out there and see how it goes. In 2 years’ time we’re going to have a look at it.” It would have been a lot more sensible to have two bills, one with a sunset clause and one that continues on.

I would also like to talk about clause 17(2). Jacinda Ardern spoke about the “release from custody”, which means “release from custody in a prison or, if a person is detained in an immigration or other facility following release from prison,”. I just want to finish off a point I was trying to make earlier. When there is a review of what has gone on in the immigration facilities in Australia, guards will be asked why they participated in the abuses. Their answer will be that they were simply following orders. Where have we heard that type of defence before? That is why it is imperative that even though the Australians are a sovereign nation and they can make the laws that they want, it is imperative that we stand up to laws that are wrong and that lead to human rights abuses.

I would just like to talk about the criteria for determination that a person is a returning offender or a returning prisoner. They are similar but different. A returning prisoner is a subset of a returning offender: “A ‘returning offender’—(a) is a person who has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand and, being liable for deportation or removal as a result of that conviction, has returned to New Zealand; and (b) includes a returning prisoner.” That was clause 7. So clause 17, “Criteria for determination that person is returning prisoner”, says “The Commissioner must determine that a person is a returning prisoner if the Commissioner is satisfied that the person—(a) has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and (b) has, in respect of that conviction, been sentenced to—(i) a term of imprisonment of more than 1 year; or (ii) 2 or more terms of imprisonment that are cumulative, the total term of which is more than 1 year;”.

The reason I raise those two definitions is because I have an actual case of a detainee. My understanding here is that he is still on Christmas Island. He is a guy that I met there. But who knows, he could be on a plane right now and be ready to land in New Zealand in the not too distant future. But here is his story from an email from his mother. The young man’s name is Beaudine Adams. She says he has been in Australia since he was 4 years old, so “All he knows is Australia. He has no connection with New Zealand at all. He is a son, brother, father, fiancé, and friend to all whose lives he enters. So he got into a toxic relationship. His partner used to beat the living—out of him. It was reported to the local Ipswich police several times. The response was always the same: ‘You’re a big bloke, and she’s hitting you?’ There was never any paperwork filled out, as they made Beau feel like a wimp. The partner’s father was a police officer there. Beau had asked her to leave many times. One day she was hitting him with a pole and it broke the skin on his right wrist. He grabbed the pole out of her hand, struck her on the top of the leg. She left and went to the police station, taking out a DVO.”—which I assume is a domestic violence order—“No mark was left on her leg. He decided it would be easier to get away from that relationship, so he left and went north to Mackay.

She constantly texted and phoned him, then within a week of him leaving she boarded a plane and flew up there. She phoned him, claiming she was going to drop the DVO and had no way home and no money. She pleaded with him to take him back to Ipswich. He answered her text, answered her phone call, picked her up from the airport and took her back to Ipswich. They argued all the way back. Back at the house she attacked him. He restrained her by the wrists while she constantly kicked him in the shins. She went straight to the police station and said he had broken the DVO and claimed he assaulted her. So he was charged with occasioning bodily harm and three breaches of the DVO: one was the texting, one was the phone call—both of which she instigated—and one was holding her captive.” They assume that was because he was driving her in the car back to Ipswich.

“He went to Brisbane Correctional Facility, awaiting his hearing. He was there a total of 159 days. They took his issue to the Supreme Court. Judge Donaldson presided. He was shocked at her claiming she was ‘scared for her life’ yet continued to contact him and then boarded a plane to be with him. He was released on bail. He never broke the bail, but he did break the parole conditions, or the conditions of his release, because he smoked cannabis. He was due to be released on 18 May.” They went to collect him, only to be told he was going to Perth. He was flown to Perth, and then went to Yongah Hill, which is a detention centre. On 8 October he was sent to Christmas Island. The reason I raise this case is that reading this story—and I admit that this is one side of the story—I am not sure that he is either a convicted prisoner or a—what was the other?

💬 Metiria Turei: Returning offender.

Or a returning offender. So he has been in trouble with the law. It sounds like he was on remand. It does not sound like he was actually convicted of anything. Like I say, I am just taking what I am reading here from the mother’s email. But if that is the case, then what applies to him if he happens to be on the plane that is heading here in a couple of days? What category does he fall under? Does he turn up and have no conditions imposed on him? Does he turn up and certainly get no social support nor any sort of support to get himself back on his feet, to get a job, to feed himself, to clothe himself? That is why I have concerns around this bill. It has been rushed.

I have to admit I stumbled over a few words because of the wording. It says in clause 17: “Criteria for determination that person is returning prisoner”. Being a former school teacher, I do not know whether I would have accepted that grammar from a student. This is why we have concerns that the bill actually does not cover everything that it should do. The least of the problems are grammatical errors; the worst of the problems are that some of these returning people are not actually going to fall into the auspices of this bill.

I just also want to touch again on the social side of things. There is nothing in the bill around the social side of things and looking after these detainees when they return to New Zealand. Again, it was about 5 or 6 weeks ago that I suggested that the Minister for Māori Development put some budget aside to look after these people when they arrive, so they can be fed and housed on a marae for a few weeks so that they can get on their feet. He said no, that is not necessary because every Māori—and, let us face it, many of these people are Māori—has some sort of connection to somewhere in New Zealand, even if they do not know it. Earlier in the day when the Minister spoke about the terrible events in France he finished with a waiata: “Mā te tika, mā te pono, mā te aroha”, which means: through the truth, through faith, and through compassion we can achieve things. I am just asking where the compassion of the Minister for Māori Development is for these people. If he is saying that all Māori have connections back here in New Zealand, where is the compassion for these people so that we can actually stand them on their feet and get them back to those very people whom they are meant to be related to?

I met Raymond. I forget Raymond’s last name. He was on TV the other night. He said he was born in the South Island. He was deported back to New Zealand and arrived a matter of weeks ago. He had nowhere to go, nowhere to stay. An elderly couple from Tai Tokerau, from Whangarei, actually put him up in their place. That was a great act of compassion. The trouble is that that set a bit of a precedent. Not every person who comes back is actually going to have that sort of support when they get here. Kia ora.

Look, I am very pleased to take a call on the second reading of this important bill. I just want to make a couple of remarks briefly—firstly, just to respond to some of the criticism that has come from members opposite. I think it was David Shearer, in the first reading of this bill, who posed the somewhat provocative question or statement that the Government was not standing up for New Zealanders or for Kiwis.

I actually think the record will show the opposite. When looked at in the light of day, in the cold reality of the situation, the record will show the opposite. The Government has stood up for Kiwis. The Prime Minister has stood up for New Zealanders. Minister Woodhouse, who is sitting here in front of me, and other Ministers have expressed their concern at some of the Australian policies that have come to light in the last 18 months or so. But Australia is a sovereign country that makes its own laws and makes its own rules, and, at the end of the day, there is little that New Zealand can do about that. But what we can do is manage our own affairs and put in place a regime, which this legislation does, to make sure that we manage those who are returning to New Zealand.

The second thing I want to briefly touch on is whether or not this law should have come before Parliament sooner. Members opposite, particularly Jacinda Ardern and Kelvin Davis, have suggested that this should have happened way back in February or March. Jacinda Ardern said that the Government had known about this situation since April 2014. Actually, as the Minister of Justice said in her second reading contribution, this was not in the briefing to the incoming Minister that gets provided. This was a law change made by amendments to the Migration Act in Australia in December 2014. The Minister was adverted to this in February 2015.

Imagine what would have happened if the Government had turned up in Parliament, and one of the first things we had done for the year, at the start of this year, was to immediately legislate to deal with that situation. Members opposite would have been up in arms. They would have cried that it was an outrage. They would have said the Government was moving too quickly. They would have said that the Government is legislating in haste. It will make mistakes. You can write your script yourself, Mr Assistant Speaker. That is exactly what members would have done. Actually, that would not have been the right thing to do. The Government has taken a deliberate process over the last few months, working with the Australians to set up a register and get that information out of them that will allow this legislation to be effective. And now we come before the House today to legislate to put it into place.

There has been a lot of hot air from members opposite. There has been a lot of huffing and puffing, as my colleague Alfred Ngaro says.

💬 Denis O’Rourke: A lot of very good arguments, too.

There has been a lot of huffing and puffing from Denis O’Rourke, but that is typical of that member. But, actually, when looked at in the cold, hard light of day, this is a necessary bill. It is necessary to legislate under urgency. The Government can hold its head up high when it comes to this issue. Thank you.

I think Mr Bishop is wrong. It has been a very measured debate, and rightly so. It is a very serious issue, which we are having to deal with very quickly. I have appreciated the analysis from all sides of the House—probably bar that one—so far, each of which has shed some light on both the process and the content of this legislation and why it is so important.

I just want to reflect on two issues raised by the Minister of Justice, Amy Adams. One was about the process. She described how a great deal of policy work goes into an issue like this and that criticising the 12 days of drafting—it sounds funny when you say it like that—does not acknowledge the amount of work that goes into policy development. I agree. When you are working on new policy and, in particular, complicated policy, it takes a lot of time and a lot of work. The actual construction of the final legislation does not take as much time, once you have got the policy settings right.

The concerns from the Opposition have been that in the process of developing the policy, the Government has not looked outside of its own confines to find out what the right options might be. My own colleague David Clendon offered in July to talk with the Minister about those policy settings and was refused. The Government did not want to talk with any of the Opposition members about this. I am not sure whether Labour was able to have a direct conversation about the policy as it was in operation. There is no indication from the Government that its members talked with agencies outside of Government agencies, like the Law Commission, the Human Rights Commission—agencies that they can trust to keep information confidential. These are major institutions in New Zealand and they are just as capable of keeping information confidential.

But the point of policy development is you get new ideas about how to deal with the problem, and you find as many different ideas as possible—constructive ideas of how to deal with the problem—and then you try to build the best policy out of it. That is why you talk with other people outside the confines of your own office. That is why you go and find experts from outside the parliamentary process who are less invested in the politics and the pressure of the issue, and much more interested in the effect of the legislation on the community as a whole.

That is why we have a select committee process. We have a select committee process because we want New Zealanders to tell us how this legislation will affect them. What are the areas of their lives that we do not know anything about that will be affected? How could we improve it if the effect is bad? What might we want to support more if the effect is good? That is the point of the democratic process of discussion and consultation.

A wiser process would have been something like Ruth Dyson used to do when she was a Minister. She would call in the spokespeople on the particular issue she was dealing with as Minister. We would all go, from across the political spectrum, to her office to hear where the policy development was going, what she was thinking about doing, and what the pros and cons were. We could talk to her about that collectively, so we could hear each other’s ideas, and better policy was developed as a result. But early on in the process, and on something as critical as this legislation, that would have been a wiser course. We have had the entire year to enable proper consultation across the Parliament and with the experts outside of Parliament, and none of that happened. That is why we have a bill where already there have been some issues raised.

I would touch on Kelvin Davis’ example, his story, of a young man who is currently being detained, where it is completely unclear what part of this legislation he would be covered by. Would he be a returning prisoner because he has been detained and there are some complications around his detention? Would he be a returning offender, which has less oversight? How does that young man know where he fits in the legislation? Legislation that deals with the criminal law, that deals with the coercive powers of the State to detain and question you, should be as clear as possible for every single New Zealander, particularly those who are going to be subject to that law. This is the kind of example that would be raised in the select committee. Experts would be able to have a look at how the law applies to that situation and perhaps another few, to see where the gaps are in the legislation that need to be filled, and provide that advice to the Parliament so we can build better law.

That is why the Greens have said so strongly that we need to have at least a short period of a select committee inquiry to investigate that. We do not want to be supporting bad law that does not work, bad law that is confusing, bad law that captures people who should be not captured and infringes their human rights, and bad law that fails to capture the people who pose a significant risk to the public safety of New Zealanders but manage to fall outside the cracks. We do not want to pass law like that. We want to pass good law. We cannot do that in a circumstance where it has been drafted hastily, the policy has been developed without any consultation, and there is no chance of an external review from the experts who deal with this sort of stuff every day on the ground.

I would just end on Amy Adams’ own words, where she said that the drafting of this policy of the law could have gone one step too far or could have been one step too low. The problem, of course, is that we do not know that. We do not know whether the balance has been struck, because we have not got any advice or any information from anywhere but within the Minister’s own office. That is not adequate when you are in the lawmaking process. It is not what the democratic lawmaking process should be about. Thank you.

We in New Zealand First accept that we have a rather novel situation here. We also accept that it is not of the Government’s making. I have already criticised the Australian Government for that, and am not going to go back there. I have also criticised John Key for some of his behaviour over it. Again, I am not going back there now. But I do want to say that I think we should all see this bill as a starting point, and that there is going to be a journey after this, to continue to deal with what is happening in terms of the return of offenders from Australia to New Zealand, and that the bill will need review. I am glad to see that there is a review provision in it so that we can do that. There are going to be a number of areas where there are provisions that may, in the end, prove to be inappropriate or that are likely to cause problems or that, in fact, prove to be unfair.

I am certain that we are going to see all of that happen within the next 2 years, but New Zealand First does accept that the matter is extremely urgent because of what the Australians have done to us and because there is actually going to be a significant—very significant—number of people returning from Australia to New Zealand, and that is going to happen within a matter of days. So we accept that this is a pretty good attempt at some legislation in the first instance, but we do not accept that it will be the end and we think that the review will be necessary and changes will have to be made in due course. So we accept and we will support this bill, warts and all, because it is certainly better than nothing at all. Nothing at all would, in fact, mean relative chaos, so the urgency is obvious and the need for some fairly comprehensive legislation is clear. This is better than nothing. It is not as good as I would have liked to see in terms of the refinement of some of the provisions, some of which I am going to refer to in a moment.

But the bill is saved by clause 37, which requires the Justice and Electoral Committee to review the whole bill after 2 years and then to report to Parliament. Implicit in that is that the Government will be willing to make changes. It does not say that. There is no actual commitment from this Government—if indeed it is still here in 2 years—to make the changes that may be needed. However, I welcome the provision for the review and I am sure it will be taken seriously by all concerned.

New Zealand First does have areas of concern, which I briefly referred to in my first reading speech. One of those areas is clause 10, and clause 10 relates to detention by police for the purpose of obtaining identifying particulars. Clause 10(1) allows detention of an offender at any time within 6 months of return, and I wonder whether that provision is actually reasonable because one would expect that if any action needs to be taken, it would need to be taken well within 6 months of an offender’s return. So I raise the simple question—why so long? Surely that period is too long and ought to be reduced. In fact, where people have committed only obviously minor offences, then I think that perhaps there needs to be some way of sifting those people out so that they are not subject to the full rigour of what we see in clause 10.

One of the other provisions, in clause 10(2), refers to police detention for the purpose of taking identifying particulars at any time within 6 months and states: “A constable may detain an offender … only for a period that is no longer than is reasonably necessary in the circumstances …”. What on earth does “no longer than is reasonably necessary in the circumstances” really mean? It is actually a very wide power conferred on the police for them to judge how long that may be, and I would prefer to see a maximum period prescribed in the Act rather than to rely on such a wide and indefinite term.

That is not the only issue because, relating to how the particulars are taken, we see that clause 11 states that a constable: “(a) must do so in a manner that is reasonable … and (b) may only use reasonable force … to secure those identifying particulars.” So there is a tremendous reliability on reasonableness and reasonableness of the police. I think that the police usually are very reasonable but there are many cases that one could point to in which they have not been. So New Zealand First is a little concerned about the breadth of those provisions and the reliance on the reasonableness of police actions. I accept that those particular provisions will probably be used only in relation to samples for DNA testing and not for other areas, but, if that is the case, why is it not restricted to just that. I do not understand why it is as wide as it has been stated. That is one of the areas that may cause difficulty in the future, so it is a concern to us and maybe that is something that we could discuss further in the Committee stage of the bill.

The final area—actually the penultimate area in which I wish to express some general concern—relates to clauses 26 and 27, and these relate to special conditions that may be imposed by the court, and the kinds of conditions are specified to be the kinds that are set out in the Parole Act. Having just reviewed the Parole Act, we can, I think, all be relatively satisfied that those are generally reasonable conditions, but I still suspect that the breadth and definition of this power for the court may actually cause problems. The reason I say that is because the basis is in terms of events that have occurred overseas, convictions that have occurred overseas, and circumstances that have occurred overseas, and I just feel that that may lead to difficulties when it comes to imposing appropriate conditions.

I do note, however, with some satisfaction that there are limitations on that. Clause 26(2) states: “A court must not impose a special condition for a longer period than the period for which the standard release conditions apply to the returning prisoner.” And clause 26(3) states: “A court may not impose a special condition unless it is designed to—(a) reduce the risk of reoffending … or (b) facilitate or promote the rehabilitation and reintegration of the returning prisoner; or (c) provide for the reasonable concerns of victims of the returning prisoner.” Those are well worthwhile provisions.

But clause 27(3) is an area of general concern. Again, nothing absolutely specific, but when you read the words in subclause (3) it states: “to avoid doubt, a court may impose interim special conditions on the information that is then available to the court, even though that information is incomplete or additional information is still being sought.” So that power for the court to impose quite serious conditions on incomplete or unreliable information is, for New Zealand First, another area of concern. The application may be made without notice but the special conditions will expire after a period of 30 working days. Nevertheless, I just express a general concern over that particular provision.

The last part relates to Subpart 3—people returning more than 6 months after release from custody. There is some possible difficulty over that, in that a person must have been under some kind of supervision or something like an extended supervision order or a public protection order for the subpart to apply, and yet I still feel that there is room for concern that after 6 months the ability to impose those conditions may not be appropriate.

I rise to take a brief call on the second reading of the Returning Offenders (Management and Information) Bill in its stages before the House. I just want to make comment to Mr O’Rourke that I agree with his comments. I work with Mr O’Rourke on the Justice and Electoral Committee and I know, as he said, that we both agree that the bill is important and that it needs to be rushed through under urgency because of the concerns that there are in regard to safety, particularly around the supervision and the monitoring.

So my brief comments on the second reading of the bill are particularly in relation to Subparts 2 and 3 of Part 2. These define the returning prisoners and establish a supervision regime for them to be administered by the Department of Corrections on a basis comparable with its supervision of prisoners released on conditions as well, whether or not they be non-custodial. Some of those conditions are that the Department of Corrections will be able to apply to a court for a period of supervision for offenders who have been in the community for more than 6 months where they were subject to supervision or monitoring at the time of their leaving the other jurisdiction as well.

The second point is that under the supervision regime returning prisoners will be supervised in the same way as those who have served a prison sentence in New Zealand as well. The regime will also apply regardless of whether the offender is deported, removed, or returns voluntarily. As I said in my first reading speech in regard to the regulatory impact statement, we know that of those who are returning offenders, over 70 percent of them have committed crimes of a serious nature, so it is important that the supervision regime is in place.

The last point I want to make is that the length of supervision periods will be related to the length of sentences imposed. For example, offenders with a sentence of 2 to 5 years will be supervised for 1 year, which is similar to what would be in place for prisoners released in New Zealand. Along with my colleague Denis O’Rourke, who has just left, I agree with the urgency with which this legislation is passing through the House, and I commend it in its second reading.

The next call is a split call. David Clendon—5 minutes.

At this stage in the proceedings we are normally debating a bill as reported back from a select committee. That is the nature of the second reading of a bill. After the first reading a bill is sent off to a select committee. Typically there will be a period of some 6 weeks or so when the public and interested parties can make submissions. The select committee then hears some of those submissions orally. We will sit around a table, with all parties represented, and we will hear what the general public and people with some expertise have to say about the provisions of a draft bill. From that, we cogitate, digest, and come back to the House, I think, almost inevitably with something better than was first presented as a draft bill. I think every drafter of a bill, be they a Minister or a member, will confess that bills are seldom perfect at first blush, but they are improved.

We have been denied that opportunity with this bill, and I think that is significant, given the public interest in it and the fact that it does make a number of people in our communities uneasy. We have already had proof just in the last few days that broader consultation has actually generated some improvements to this bill. I think there is some irony in the fact that in the regulatory impact statement, which, as I said earlier, we only got to see at about 3 o’clock this afternoon, the point is made in paragraph 98: “The timeframe for developing the proposals”—being the policy proposals on this bill—“did not allow consultation with the public. The Parliamentary process for options requiring legislation will get an opportunity for public consultation.” Unfortunately, that has been denied to members of the public because of this urgency process. It is not a defensible process.

Yes, there is some need to get this legislation through. We concede, and we have, the need for some haste. We do not accept, however, that even a truncated select committee process was beyond the means of this Government. We could have reasonably expected to hear from the Law Society, the lawyers and the judiciary who will obviously have a role in the implementation of this legislation. They are generally quite good at spotting fish-hooks and operational matters that we as legislators might miss. We almost certainly would have heard from the Human Rights Commission. We know from the report on compliance with the New Zealand Bill of Rights Act—which, again, we have had access to for barely 2 or 3 hours—that there are concerns about that, particularly around the bodily samples issue. We could reasonably have expected to hear from advocacy groups like Rethinking Crime and Punishment, like JustSpeak, like the Howard League for Penal Reform, and like Prison Fellowship New Zealand—organisations that are credible with good, evidence-based contributions to make with long experience in working with offenders both in prison and after their release.

These people could have made a really valuable contribution to developing this legislation. They could have made it better, and they are now to be denied that opportunity because this is being done with such unseemly and unnecessary haste, going from go to whoa in a matter of 2 hours on a Tuesday when Opposition parties have had only a few days to look at the draft bill and did not get a final look at the bill as we are debating it until about 11 o’clock this morning. We could even have heard from the New Zealand Police and the Department of Corrections. I suspect that Police might have had some points to make about the impact on their budget as a result of the requirements on them to enforce this. We know that Police are already overstretched in budgetary terms. This legislation will add to their concerns and it would have been useful for them to have an opportunity to say that.

I mentioned earlier that this bill has been improved, given that the Opposition had a few days, essentially, over the weekend to think on it, look at it, and give feedback. A number of the improvements include the mandatory review. The Minister has suggested 2 years. We agree with our Labour colleagues that that is far too long. The 2 years will expire slap bang in the middle of—or very shortly after—the next general election, which means, realistically, that it will probably be nearer to 3 years before a review is completed. We should have a review at least within a year, if not sooner.

The identifying particulars that returning offenders will be obliged to give will reflect the Policing Act. We think that is a good thing. It does narrow the scope. It means that we are not going on a fishing expedition. We will get the necessary information and nothing more than that. We managed to get more information available in determination orders. I will come to the specifics in the Committee stage. For now I express our regret at this very poor process.

Tēnā koe, Mr Assistant Speaker. Thank you very much for this opportunity. I rise for the second reading of this particular bill. I want to echo many of the sentiments of concern raised by my colleagues, in particular on this side of the House. But before I do that, I do want to just point out a comment made by the member Mr Naylor during the first reading around being convicted before being imprisoned. Recently, on 5 November, I remember Parihaka, and Te Whiti o Rongomai and Tohu Kākahi, who were imprisoned without trial or conviction.

Anyway, I digress—and now to the points of this particular bill. We do agree that it is necessary for a particular regime or a system to be put in place. Admittedly, we acknowledge that this is somewhat of a knee-jerk reaction, and if there is one saying I am sick and tired of hearing in this House, and even repeating in this House, it is: “Well, I guess this is better than nothing.” It seems to be a theme that is running across a lot of the policy agenda and the legislation agenda of this Government, and here is another case. Members on this side of the House have expressed concern around the democratic process that most bills go through, and around just how fast this particular bill has been rushed in.

The member opposite, Jacqui Dean, has mentioned that a robust conversation was held in particular by many of the Government departments, and those Government departments, we know, are the Department of Corrections and the Police. But I do want to just echo and support the point made by the Green members about some of the other organisations in our communities who play a vital role in prisoner rehabilitation as it currently stands in New Zealand. I am sure they have a lot to contribute and a lot to comment on in terms of this particular legislation, however they have been denied that particular opportunity.

Also, just on the comment about the consultation or the discussion that was had by Government agencies, I see too that in clause 15(e), in Part 2, it talks about how the Department of Corrections can make applications to the “appropriate court”, and in the bill it describes it as the District Court. The Justice and Electoral Committee, members of which are in this House, will know about some of the capacity issues that have hit the courts in recent times, in particular down south, and that some of them have been closed. I just question the actual capacity of Government departments and Government agencies to deal with this particular bill.

I briefly mentioned earlier rehabilitation and the importance of it. The definition, to my mind, of rehabilitation is a planned intervention that attempts to change or alter whatever aspects that caused the prisoner’s criminal activities—things such as interpersonal relationships, behaviour, addictions and addressing those issues. This is in the hope that the likelihood of recidivism is decreased.

We are debating, in particular, two of the streams, or capacities if you like, of this particular regime, and one of them is around a returning prisoner and the other one is talking about other offenders. We have some concerns around that and around the need for more rehabilitation services.

I do want to support the notion put forward by my colleague Mr Kelvin Davis around the support from the Māori rehabilitation angle, in which I think the marae can play an important part. I want to mention Waatea Marae in Tāmaki-makau-rau, which, as far as I know, is certainly one of those points that can assist with this type of legislation and the return of our citizens back to New Zealand. Kia ora.

Firstly, can I just acknowledge the history lesson from the member opposite, Mr Henare. It was a good reminder, I guess, that there have been times in New Zealand when things have been less than ideal, and, hopefully, as we continue to improve things right across history, we can now make sure that some of those things do not ever happen again and we can have legislation that will be good for New Zealand.

This, as I said in the first reading, is good legislation for New Zealand, because paramount behind this legislation is the protection of New Zealanders in order to keep them as safe as we possibly can—in this instance, from people who are returning from overseas who have been deported because of their criminal behaviour. There is an expectation, as I said in my first reading speech, that New Zealanders can expect that we will have similar sorts of provisions in place for people who have been serving time overseas as for those who have been serving time in New Zealand.

There has been—and I guess I would expect there to be, anyway—a certain level of concern about people’s civil rights in this kind of legislation, but I think, ultimately, we have got to find that balance between people’s civil rights and safety. I think it is important to highlight that this regime is going to apply only to offenders returning to New Zealand within 6 months of being released from custody. So we are not talking about those people who perhaps are just being deported for issues of character and we are not talking about just those people who have had issues with speeding fines or otherwise, but we are very much targeting those people who have committed crimes that have had custodial sentences attributed to their crime.

So what we now need to do is have something in place to ensure that if they are going to be returned to New Zealand, whether it is against their will or otherwise, we reintegrate them in the best possible way we can. That is exactly what this bill sets out to do, and so I commend it to the House.

David Shearer, in his contribution in the first reading debate, said that as he understood it, offenders from Australia who have been convicted and returned to New Zealand following conviction are arriving in New Zealand without particulars being provided to the New Zealand Government at the time as to what the offences were that they were convicted of in Australia and perhaps sometimes when they are arriving. I want to hear from the Government whether that is the case, because there are only two explanations for that. Either there is irresponsible behaviour on the part of the Australian Government—firing convicted criminals back to New Zealand without telling the New Zealand authorities enough information so that New Zealand authorities can protect New Zealanders in case they need to be protected—or there has been absolute incompetence by the New Zealand Government in not getting that information, which could have been made available if it had asked early enough. Those are the only two explanations I can think of, and I want to hear if—

💬 Hon Michael Woodhouse: There are many others.

Well, the Minister of Police interjects that there may be many others. Take a call and tell us what is happening—

💬 Hon Michael Woodhouse: Well, wait for the Committee stage.

“Well, wait for the Committee stage.”, he says. Well, it would be nice if one of your members could actually take a call and address these important issues now.

I want to turn to another issue. You know, this bill was dropped on us. The first time we saw the wording of this bill in detail—the outline of it had been provided by Amy Adams to Jacinda Ardern. But in terms of actually seeing the legislation in written form—which has changed even in the last day, as I said in an earlier contribution—was after question time today, at about 3.30. We then had the first reading and we were all preparing for that. We are now into the second reading—and it is not even yet 6 o’clock—and I have had a chance to read through it a little bit further.

I am concerned that we are ousting the jurisdiction of the court to overturn an improper determination by the commissioner of whether someone meets the criteria for being a returning prisoner that would trigger the provisions under clause 24, which says that a returning prisoner is then subject to standard release conditions. Clause 17 sets out the criteria to be applied to where the commissioner must determine that the person is a returning prisoner, and then it sets out what should be in a determination notice. Then it says that someone can apply to the Commissioner of Police to review that determination—that is set out in clause 22 of the bill—and then it says in clause 28 of the bill that a court may vary or discharge those release conditions, except that in clause 28(2) it says: “A court must not discharge a standard release condition with effect from a date that is less than 6 months after the date … of the determination notice.”

I want to hear from the Government as to whether it thinks it is ousting the jurisdiction of the New Zealand courts to say that the commissioner was acting illegally and applying the wrong criteria during that 6-month period, because, I tell you what, if I had come back from overseas and I had had a traffic conviction or something and been convicted of an imprisonable offence overseas—and it is not just Australia that this legislation applies to—and I got back here and was slammed with one of these notices that said that I was all of a sudden subject to these notices and I thought it was wrong, I would actually want to go to the court and challenge it. I would not be happy with only having the right to go to the Commissioner of the Police and say: “Please trust me, I’m a good criminal. Let me off.” You know, I think that if the effect of this legislation is that we are ousting the jurisdiction of the court to consider these things in that period, then that is poor legislation and it goes too far.

I am not sure that that is the effect of clause 28(2) of the bill, but it does say that a court must not discharge a standard release condition with effect from a date that is less than 6 months after the date of service of the determination notice being given, so it is arguable, I suppose, that during that 6-month period the court does not have jurisdiction. It may be that you can take a judicial review route, but I am not sure—it is not clear from this bill.

This reinforces the point that the Labour Party made, which is that we should have a two-track process here. We should be passing this bill under urgency because we have got no choice but to do it in order to protect people now, and it should have a drop-dead date of a year—a termination date. On the same date, we should be passing an identical bill through only the first stage, and that bill should commence on the termination date of the bill that is a short-term fix. It should not have a drop-dead date, but it should go to the select committee, and then we can sort out through submissions from the Law Society, from the Sensible Sentencing Trust—although, I do not often listen to it; it does not often have much good sense to pay, but it does have a right to make submissions—from Rape Crisis, from the civil liberties groups, and from all in the civil society who have got an interest in these things. That is how a proper Government would deal with this conundrum, but this Government has refused to do it.

Finally, I also hear that some of these people are getting back to New Zealand with no money and no ties and are ending up sitting on the Work and Income doorstep the next morning because they have been delivered into the hands of New Zealand without any support being provided to them. I would hope that as the Government sort of realises that this problem needs to be addressed, it also looks at what it needs to do to minimise the prospect of those people reoffending and to maximise the chance that they can be meaningfully reintegrated into our community in a way that means that they do not end up reoffending against other New Zealanders.

I, again, return to this point as to whether we have got the balance right between protecting New Zealanders from returning criminals—we are not clear that we have got that right in this legislation and we do not have time to properly consider that under urgency; that should be being considered on a parallel track in the bill that should go to the select committee—and, similarly, whether we are going too far in regard to some people who ought not to be caught up in this and truncating their ability to go to court to test whether they are being properly caught up in it. That too could have been sorted out in the parallel-track process of the second bill, which could have gone to the select committee today—today. I think it just shows a complete lack of proper process on the part of the Government that not only would it leave it so late to bring this legislation to Parliament but, having forced it upon Parliament, it will not actually agree to us letting that occur.

The idea that the Government would itself review things in 2 years—

The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

Before the dinner break I was talking about why it was important, given that urgency has been accorded to this bill, given that we have already found some defects in the bill, and given that we do not know whether it goes far enough to protect the interests of potential victims being subject to crime by these returning criminals—and, conversely, we do not know whether it goes too far and catches people in the net who ought not to be caught, and we cannot know in this truncated process because the Government has taken so long to get this bill to the House that urgency is necessary, but none the less the normal protections that follow normal processes have not been applied—that we should have a two-stage process, with two versions of the bill being read a first time now. The offer was made to the Government that one of them would have a drop-dead date, or an end date, of a year or 2 years—we were not too fixed on the specific date—and that that bill would be passed through all stages today. At the same time we would have a bill that was identical in all respects, except that it would take effect only from the drop-dead date of the first bill and would pass only one stage and then go to a select committee.

The Minister’s answer was that the Government was planning a review in a few years anyway. Well, it is completely different, and, of course, it is a review by the Government and the Government departments. If it gets this legislation wrong in ways that could have been fixed at a select committee, it is not going to say in 2 years’ time or 3 years’ time: “Oh, we got this all wrong, guys.” It will be minimising the problems. It will be saying: “Oh well, it was all right. There was this little detail that perhaps ought to have been fixed.”

That is the difference between the Government being able to do things by itself and Parliament having oversight. If it was good enough for the Government just to do things quickly by itself without parliamentary oversight and public submissions from groups like the Law Society, the Council for Civil Liberties, Rape Crisis, and other victim groups—if that was the way in which we ought to properly do things, we actually would not have the normal three stages of legislation and the select committee process. I am dismayed that the Government has not taken up that very sensible offer that we made.

This is a very important measure, which needs to be enacted as quickly as possible. I welcome the broad support it is attracting throughout the House.

Bill read a second time.

In Committee

Part 1 Preliminary provisions