Returning Offenders (Management and Information) Bill

One of the issues I raised with the Minister of Justice late last week was the definition of a returning offender in clause 7. The whole point of the returning offender clauses in this bill is to capture personal information—name, address, date of birth, fingerprints—of people who have committed offences in Australia and have been deported. In the description of this, the rationale is that they have been convicted of an offence in Australia that would be an imprisonable offence here and have been deported because of that offence, but that is not what the definition says. So I would like to just get some clarity from the Minister about how this definition of a returning offender came about and, particularly, the extent to which it captures people who, really, there should be very little public concern about—so people who do not pose a risk of any kind and so, therefore, it is unjust to require this additional information from them by the police.

A “returning offender” is defined as including a returning prisoner, but that is irrelevant for this discussion, and as “a person who has been convicted in an overseas jurisdiction of an offence … that constitutes an imprisonable offence in New Zealand”, so it is a similar offence to what we would have in New Zealand that would lead to imprisonment, or at least has a sentence of imprisonment. Then it goes on to say “and, being liable for deportation or removal as a result of that conviction, has returned to New Zealand;”. It says “being liable for deportation or removal as a result of that conviction,”, not being deported or removed as a result of that conviction.

So I just want to get some clarity around those cases. There may well be people who are being deported from Australia because they fail a different part of the good character test, and there are lots of examples of that—for whatever reason, the Minister over there decides that they do not like them and they want them to be sent back here. And it has got nothing to do with any previous convictions. They may well have been convicted of an offence 20 years ago, 25 years ago—

💬 Marama Fox: Forty.

—10 years ago, or 40 years ago. They could be convictions that, actually, do not have any genuine relevance and do not pose any risk to New Zealanders. The person might not have been convicted of anything in the ensuing 40, 20, or 10 years and there might be no evidence that they propose any genuine risk here, but because they have a conviction in Australia, it makes them liable for deportation, and so, therefore, they are caught by this bill. I ask the Minister whether we could find some ways to constrain this definition more so that those people who commit minor historical offences—where it is pretty clear that this is a person who has been kicked out under the ridiculous rules of Australia, as opposed to an actually sensible reason—are not caught by this legislation. There is no need for them to be caught because they do not pose any risk to New Zealand society.

There is a degree of discretion in clauses 8 and 9 allowed the police in seeking identifying information, but, as we know, there is not always a great deal of trust in the police and its ability to use this kind of discretion wisely. For those of us who have been involved with the Māori community for many years, we know that Māori tend to be targeted, and so we want to be able to protect particularly those who may not have a relevant conviction in the sense that it poses any kind of genuine risk and is very minor and very historical, but may be subject to other kinds of profiling by the New Zealand Police and who are then subject to this law. And there is no protection for them here.

This definition of returning offender captures practically everybody who will be deported if they have any kind of conviction in Australia, no matter how historical. The key part of this key point is that it then means that this definition of a returning offender is largely dependent on the criteria that Australia sets for deportation. They are not independent criteria that we have set here based on our own assessment of what constitutes a genuine risk of recidivism or a potential threat; the law is premised on Australia’s definition of what a qualifying offence is. And, frankly, I have no interest in Australia’s definition. Its law is a disgrace. It is contrary to human rights. Its law explicitly says that all rights of natural justice do not apply. So I would like some of this addressed, if that is possible.

I just want to begin, because it is relevant to Part 2, by just reflecting briefly on the contribution made by Marama Fox. She finished her speech by saying that until now there had been no way of monitoring, for instance, child sex offenders or sex offenders who were deported back to New Zealand. That is actually not the case.

The Minister of Justice knows, because she was the Minister who was in the role of Minister of Justice when this piece of legislation came through, and that is the Parole (Extended Supervision Orders) Amendment Act. The interesting thing about this Act, which demonstrates that, actually, we are not being contradictory when Labour, on the one hand, says that this bill should have had due consideration because it could have gone through earlier—the point is made by the extended supervision Act.

This Act began its life in April 2014, when we still did not have our information-sharing arrangement with Australia. We knew, however, that that was on the cards. The Minister was working hard to try to get officials and counterparts on board. That piece of legislation—and this is relevant to Part 2 because it talks about the similar regime that has been used here as has been used in Part 2—talks about the meaning of an eligible offender, and this language will be familiar.

It says here that a person who is eligible “… has arrived in New Zealand within 6 months”—again that 6-month timeline—“of ceasing to be subject to any sentence, supervision conditions, or order imposed on the person for a relevant offence by an overseas court; and (ii) has, since that arrival, been in New Zealand for less than 6 months; and (iii) resides or intends to reside in New Zealand.” Those are the criteria for an extended supervision order to apply to someone who has committed an offence at a high enough level.

We know that we already have offenders who fulfil those criteria. This is relevant because in Part 2 we are covering them off again. There is a definition in there that allows for someone who has committed a serious offence to be covered by this bill, but we already have a regime. We know that since 2013 approximately 70 percent of returning offenders have been convicted overseas for serious offences: assault, 30 percent; armed robbery or burglary, 20 percent; rape or sexual assault including child sex offenders, 15 percent; and murder or manslaughter, 5 percent.

Yet it is my understanding that extended supervision orders have not been used once. That is my understanding. I would be very interested to hear from the Minister why that is the case. The reason I would be interested in hearing that is because in Part 2 we have two regimes set out. One is a default regime; the other is a regime that must be triggered through an application through the courts by corrections.

If we already have a regime like that set up through the extended supervision orders but it has not been used, why is that? Was the threshold test not met? Were corrections not spry enough to make the applications? Was the definition of the offenders captured incorrect? This is really critical information because if there has been some kind of drafting error in the extended supervision orders—given it mirrors what we are doing in Part 2—we need to know that. Why has it not been used? You need to also know it because the Department of Corrections plays a critical role in enacting part of this Part 2.

Let us go through this, because I want to just explore, potentially, whether there may be two gaps where we are exposed by the two definitions in Part 2 of who is covered under this legislation. Under clause 17 we have the criteria for determination that a person is a returning prisoner. Keeping in mind that the definition applies, we have a returning prisoner and we have a returning offender. One is more immediate than the other. The returning prisoner—“The Commissioner must determine that a person is a returning prisoner if the Commissioner is satisfied that the person—(a) has”—and as we have traversed already—“been convicted [of a relevant offence]…of more than 1 year…and (c) is returning…within 6 months”.

The important point here, and I want the Minister to confirm whether or not I am correct, is if they come back to New Zealand and a determination notice is not issued within 6 months of that return, is it correct that that opportunity is completely lost for any kind of monitoring regime? So they could fulfil the criteria for a determination order, as set out in Part 2, but if corrections drops the ball and if for some reason the determination notice is not offered, or if there is no opportunity for a determination notice to be issued in writing, then that opportunity is lost.

The reason I raise that is because in clause 19 it sets out that “The Commissioner must serve a written notice on a person”—we are now calling them “p”. I do not know if this is a new drafting thing, but for the rest of them they are just called “p”. I find that confusing. In the criminal world there is another reference for “p”, but that means person. So if I read out “p” it means person. “The Commissioner must serve a written notice on a person (P) who has been determined to be a returning prisoner. (2) The notice must be served,—(a) if practicable, on P’s return to New Zealand; or (b) if service on P’s return to New Zealand is not practicable, as soon as is reasonably practicable …in any event, not later than 6 months after P’s return to New Zealand.”

I know that we have difficulty serving protection orders in this country. It is a massive task and the police do not even always do that job even if we know that the person that the order needs to be served on has committed assault on a victim. The police then are not always the ones serving the notice. So how do we know who is serving these notices? Who is serving them? Is it the police? Because I am very sceptical of their ability to make sure that every single person who is covered in this bill will be able to be found in a practicable time by police.

I would be interested in clarification. Who is doing that job? Essentially, if someone arrives and disappears and we do not find them in 6 months, it is game over, no matter how serious their offence. It is a point I want to make to this Committee.

This bill is not based on the seriousness of offence. It is not. That is not what determines whether or not you will be covered by monitoring conditions. What is determined is how quickly you are deported after you are released. That is what determines whether you will be monitored. That seems to me to be a flaw in the principle of what we are trying to do here. For instance, someone who has had low-level offending, done prison for a year or more, they come out, they are detained straight away in a facility for 6 months, brought back to New Zealand, and they will be monitored. By default they will be monitored.

Someone, however, who, for instance, may be on a life sentence but has been free in Australia for 6 months is not covered by default. If they come back into New Zealand, we are then reliant on the next definition. I will find it in the bill. The next definition is for the returning offender who returns to New Zealand more than 6 months after release from custody. For these offenders, we are absolutely reliant on the court imposing conditions on that returning offender as set out in this bill.

So, again, that is reliant on the application of the chief executive to impose any conditions on a returning offender to whom this subpart applies—and the subpart, of course, being the definition around their having spent 6 months or more free but having some conditions imposed on them. Again, that happens if you have got a serious offence. So this seems to be a big hole. The default stuff seems to potentially cover a lower level, but potentially the more immediate, but we are reliant on corrections being spry for those areas where they might have a set of conditions that are being imposed by Australia that probably should continue to be imposed here.

I come back to my original point. If we are to have faith in corrections being able to do that sufficiently, why, when we know the seriousness of offenders who have already found themselves in New Zealand, have we still not used extended supervision orders? Does that demonstrate that we should not have faith in corrections that it is necessarily going to apply this subclause correctly and in a timely manner? That is my concern.

We have merged together two definitions around who is being captured, and we may end up being more punitive to the lower-level offenders than we necessarily might be on those who might have a wider set of conditions. I accept that the Minister, I think, has identified this issue herself with the new clause, I think, that is 27(1), which reverses the onus, that the court, basically, for a certain level of offending has to impose conditions. But that actually was about making sure that where we had incomplete information we were doing something quickly and effectively.

I have concerns that we are leaving too much up to officials who have already demonstrated to us that they are stretched and may not apply their discretion appropriately.

Tēnā koe, Mr Chair. Tēnā koutou e Te Whare mō tēnei pō. I just really want to take a call because I think it is quite rare for the Greens to abstain on a bill. We do not like abstaining, and I think one of the reasons we are abstaining, particularly with relation to Part 2, was outlined very clearly by the previous speaker, Jacinda Ardern, because it is not fit for purpose, and what we believe is that there is a law that needs to happen. There is somebody out there who needs to be monitored, and there are groups of people whose offences are always going to be of concern and should be monitored, but there has to be rigorous, consistent clarity, and this bill is not rigorous, consistent, or clear. So that is why we are abstaining, because we believe there is a bill that needs to be done, needs to be created, but this ain’t it.

So instead of Australia calling the shots, we would really like to see our Government say to Australia “Before you start sending people back through your completely Draconian and mad, incoherent system of punitive, political lack of judgment.”—which is what the Australians are doing at the moment in a random way, because of their xenophobic approach to all kinds of issues—let us say to them “We will be ready to deal with you, and we don’t want these people”—many of whom were brought up in Australia and spent their lives in Australia—“sent back here until we’re ready to cope with it.” And in order to be ready to cope with it, we need, through a select committee process, to hear from human rights experts and the judiciary and the police and the citizens who engage with these issues so that we get it right.

We agree with the Minister Amy Adams that there are people who need this monitoring—we do not disagree with that. But I would like to support my co-leader in her issue around Part 2, around the definition of “returning offender”, and address my remarks to those parts of Part 2 that talk about this returning offender. Again, we are in the hands of the Australians. They are deciding whom we are going to categorise as requiring monitoring, and that does not seem right, because if anyone here has been following the way in which people in detention are treated, the arbitrary nature in which the Australian law is being applied in section 501, etc., we cannot rely on them. We need to be clear ourselves about what we are trying to do.

I am taking a call tonight because I want to speak for political dissidents. In any law that affects people’s human rights and affects anybody who is involved with the criminal justice system, somebody needs to get up and say political dissidents can be captured by these kinds of laws. So a crime that is deemed to be an offence overseas and that can also be an imprisonable offence in New Zealand—and be liable for deportation—could be a political crime. So you could have somebody who is found guilty in Australia of a political crime that is also on the books in New Zealand, but the way they were convicted and the reasons for their conviction under Australian law could be quite different from what we would decide was right. But who makes that determination? So we are leaving that to the police force to decide, and some of us have concerns about that because we know that political dissidents could be sent home and be of concern to the legal authorities in this country simply because they are political dissidents.

So we are cautious. We are very cautious about anything that smacks of that kind of broad-brush gathering into the net of all kinds of people. So it is not only the issue of people who have committed offences at the lesser end; it is also people who might commit offences that actually, under the light of sanity and reason, such as we might have here, are not requiring this level of monitoring and this level of direction from the courts for the 6 months after they are returned, etc. But we would not be able to determine that, because we are adopting the Australian decision. So if we go to Part 2, subpart 3, it says that if an offender was in detention immediately before his or her return to New Zealand, then these sections apply to this person and the court may impose conditions on them. So being in detention is not the test. Getting into detention in Australia does not mean you are a serious offender; it means you got caught up in the net and you may or may not be a serious offender. That is our concern, and that is why we really had to abstain, because urgency has led to some of the most ineffectual and—

I will just take a brief call, Mr Chair, because I am not a legal expert and this is certainly a complex legal issue. But what I would say is that complex and broad-brush approaches to what is actually quite a narrowly defined problem are problematic, and we have seen with urgency in this House before, when the House does things that are potentially a breach of the Human Rights Act, that it can be a real problem and they have to be rectified. And, again, if we look at the conditions around taking bodily samples in clause 14, the Criminal Investigations (Bodily Samples) Act 1995 applies to certain returning offenders. In fact, a constable can issue a databank compulsion notice requiring the offender to give a bodily sample.

I am actually myself quite offended by the word “offender”. I think some people have committed offences where they will probably be tagged all their lives with being a risk to the public, but some people, after they have served their time, do not deserve to be called an offender for the rest of their lives. I think with regard to the distinction in the law here around criminals and offenders, I would prefer to see language that makes it clear what we are actually talking about, because people who have done their time who have not committed serious crimes—how many times are they going to be re-criminalised by language like this? So we have real concerns about this kind of language and about clause 14, and we would be interested to hear from human rights organisations about this kind of issue.

So Part 2 does raise many issues for us. We are concerned about the broadness of it, the powers of the police—the contradictions that were raised by the previous speaker, Jacinda Ardern, about the extended supervision Act not being used, which suggests that we are doing this because there is a panic on, created by the Draconian Australian legal process, but not because this has been thought through and this has been planned.

I think another Labour Party speaker earlier talked about the powers of the police, which would be stronger than the powers of the courts. We have to—especially after Roast Busters—refuse a romantic view of what can happen when we give powers to the police to make judgments that rightly belong in the courts. That is an important issue for us, which we would have liked to explore. I myself would be happy to be proved wrong about this bill, not through urgency but through a select committee process that laid out clearly who should be on this register, who is an offender and needs constant monitoring, and who is not. If we could make that bill clear and if we could actually create some clarity in that bill, then I think there would be wholehearted support. But until that time we are unable to do that because it is too broad a net.

Also, those of us who work with political dissidents in Australia are concerned about the direction of Australian politics and law and the impact that is having on people who are likely to be—if not now, then in the future—detainees for what is actually their right to dissent. We will stand for the right to dissent being excluded from this kind of monitoring and this kind of lifelong branding as an offender, because that is what keeps us safe. If we do not make these distinctions—if we make our law broad-brush—then we will fail to protect the democratic right to dissent and the democratic right of people to cease to be a criminal offender and to actually be a citizen, again, who has done their time. If we want to create a society where everybody stays an offender for ever, that is not a society where we actually create healing. There are people who need to be monitored; there are people who do not. Thank you.

I have got a few different queries about Part 2 of this bill. I am going to start right at the beginning here, where it says: “A ‘returning offender’—(a) is a person who has been convicted in an overseas jurisdiction …”, and I will not even continue with that because I would just like clarification from the Minister of Justice about what constitutes an overseas jurisdiction. I notice in Part 1 it is defined. It says “ ‘overseas jurisdiction’—(a) excludes the islands and territories within the Realm of New Zealand; but (b) includes the self-governing state of the Cook Islands, the self-governing state of Niue, Tokelau, and the Ross Dependency”.

I am just a little bit confused, because I thought that those were the only islands that made up the Realm of New Zealand. So I am wondering whether the Minister of Justice can clarify that for us. So just, again, to repeat, “overseas jurisdiction”—that definition is a bit confusing, because clause 4(1) says “(a) excludes the islands and territories within the Realm of New Zealand; but (b) includes the self-governing state of”—

The CHAIRPERSON (Lindsay Tisch): We are on Part 2.

Yes, Mr Chair. I am relating it to the fact that a person who is a “returning offender” in Part 2 is someone “who has been convicted in an overseas jurisdiction”, and so I am just talking about what the definition of “overseas jurisdiction” is there. But I will leave that to the Minister to ponder, and it would be great if she could respond, because, as I am sure she can imagine, we are all a little bit confused by that.

I just want to get clarity around what happens with these offenders when they are returned to New Zealand. It does say that a returning offender “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,”. So, looking at that initially, I am thinking that they have been deported, but are we saying here that they might not necessarily have been deported, they may just have been liable for deportation? Because if they had been deported then I would assume that they would be met at the airport by someone here to take over from whomever has escorted them back to New Zealand, and in that instance I would think that the identifying particulars that are also talked about in Part 2 could then be gathered at that point, rather than leaving it to, potentially, some time within the first 6 months that they are back in New Zealand.

On that subject, just in terms of being able to gather those identifying particulars within the first 6 months after the offender has returned to New Zealand, I just want clarification from the Minister around the circumstances in which it would be appropriate for the police to detain that returning offender. So would that be because they have been taken in under some other charges, or they have come under the watch or notice of the police because of some other potential criminal activity, or could the police just be informed of the fact that this person is a returning offender and then just show up to their house, or their place of work, or a mall on the street where they perhaps were, and then detain them at that point? I guess I am just trying to work out what the appropriateness of detaining these people within the first 6 months of them returning to New Zealand might be.

Looking further down, where we see “Storage, etc, on Police information recording system of identifying particulars”, there is one bit that is a little bit concerning. It says: “However, photographs or visual images of a returning offender, and impressions of that person’s fingerprints, palm-prints, or footprints, that are provided in response to a request under section 9 or obtained under section 11 in error must be destroyed as soon as practicable.” I want to know what situations the Minister envisages where someone’s identifying particulars might be taken in error, because this is really specific to returning offenders. Are we saying that there is the potential here for someone to be identified as a returning offender, and that actually being mistaken identity—in which case that is why this particular clause is in here: to cover off that particular scenario?

I guess I would just like to know from the Minister whether or not there have been situations in the past where these types of things have arisen or whether she can envisage that as being a potential problem down the track. I guess, especially in light of the fact that there is a 6-month period to gather that information, are we going to potentially see people who are not returning offenders—

As I have said in previous speeches, New Zealand First does support all of the various parts of this bill, for the reasons that I then gave. We do want to see a comprehensive and practical way of dealing with people who are returned, especially from Australia in the current circumstances, and who perhaps need—in fact, definitely need—supervision or monitoring. But there are some parts of the bill that if this had been a select committee process rather than what we have got here tonight—a much more restricted process—I would be seeking to improve or change.

One of those would be clause 7(a), and I think Metiria Turei has already pointed out the fact that this is a very, very wide provision indeed. It does refer to the “person who has been convicted in an overseas jurisdiction” at any time, and for an offence that if it was in New Zealand would be an imprisonable offence. Some quite minor things would fit that description of “imprisonable offence”, so we could be talking about very minor things indeed for the purposes of this clause. Then it goes on to refer to “being liable for deportation or removal as a result of that conviction,”. How would we know what a person is liable for in Australia or in Iran or in Timbuctoo or wherever? We would not. So this clause, I think, is problematic. It may well lead to difficulties in the future, and if this was a select committee process I would be asking for it to be tightened up and improved for those reasons. That is something, perhaps, that we will have to tend to when eventually this bill is reviewed.

When I turn over the page I see in clause 10(2) that “A constable may detain an offender … only for a period that is no longer than is reasonably necessary …”. What is reasonably necessary for the purpose of getting somebody’s particulars? How long is that? Is that 80 years, 8 minutes, or what? I guess you could take a practical approach and simply say that what it really means is that the police can hold somebody for as long as they like, until they get the information they want. In actual fact, what this section should be doing is specifying a specific period of time for which the police can hold a person, and no more, because it is too open as it is there.

Then, when I look a bit further in clause 11(a) and (b), I see again that we have this “reasonable” test, and the police are to do what is “reasonable”. I do not think that they are well-equipped to do that. What does it really mean when it says that a police officer can “take identifying particulars … but—(a) must do so in a manner that is reasonable in the circumstances”? What is reasonable? Is holding a person’s head underwater for 3 minutes reasonable, until they give up the information? I do not know; neither do the police, I do not think, either. Could we not be a little bit more specific and a little bit more professional in the way that these things are drafted? I am not so concerned about the use of the term “reasonable force”, because that is actually defined in other cases and probably in other legislation. The point I am making is that if this was a select committee process, we would be getting stuck into some of these terms and some of those provisions, because they are really, I think, pretty sloppy.

These faults are not enough for New Zealand First to vote against the bill, but I would certainly prefer to see some of those things attended to. Moving over to clause 26, concerning returning prisoners complying with special conditions imposed by the court, I think that that is all fine except for one point, which is subclause (3)(c), where: “A court may not impose a special condition unless it is designed to—(c) provide for the reasonable concerns of victims of the returning prisoner.” What on earth does that mean? What is a reasonable concern of a victim? I cannot understand how a court will deal with that, and it is another part of the bill that really should be improved.

Again, just over the page, in clause 27, where I see that, in terms of interim special conditions—and those are the ones that I would have thought that you would need to be particularly careful of, because they can be imposed immediately—it says in subclause (3) that this can happen even if the court does not have the complete information available to it, or it is still being sought. I do not understand why that is there, because one would have thought that a court must be trusted to make a decision only when it has got enough information to make that decision on. It should not be empowered to make decisions where it has not got information—that just does not make sense. That needs attention, and that is going to cause problems.

Again, in clause 27(5): “The application may be made without notice and a court must not require that notice be given.” There is a bit of a problem with that. It should, perhaps, refer to the possibility that that notice may not be possible, in which case that would be reasonable, but not just a bland declaration that this can be done without notice. There should be some limiting words on that. In the following subclause (6), I am glad to see that, at least, the clause expires after 30 working days, because that is actually a hell of a long time. It is a month, and probably it is too long. I would have liked to discuss that in a select committee, and will not get the opportunity to do so.

I could go on and on, really, in scrutinising the bill in this way. The point I am making is that it is a real shame that it is not going to a select committee, because we would all have had the opportunity to make some really constructive improvements to this bill, to avoid some of the problems that I think we are going to get and that we will now have to wait 2 years for a review for. I would like to express to the Minister my disappointment that we have not had a select committee process, because I think that that little bit more extra time would really have resulted in better legislation. I will leave it at that.

I want to talk to the Supplementary Order Paper that I have filed, and explain why I think it is necessary. Minister Adams, at clause 9 of the bill the legislation provides that the police may, when an offender returns from overseas, “as soon as is reasonably practicable, request a returning offender to provide identifying particulars”. “Identifying particulars” are defined as having the meaning set out in section 32(5) of the Policing Act. Section 32(5) has a list of “identifying particulars”, and I will read it. It means “any or all of the following: (a) the person’s biographical details (for example, the person’s name, address, and date of birth): (b) the person’s photograph or visual image: (c) impressions of the person’s fingerprints, palm-prints, or footprints”. It all goes to identification of the individual and facts that go to that end, not to the convictions or penalties that that person has had overseas.

It is understandable why identifying particulars are that narrow in New Zealand, because, of course—

💬 Jacinda Ardern: The police already know.

The police already know those particulars of their prior convictions and their offences from the New Zealand governmental records that the police have access to. What we do not know, in respect of overseas offenders—unless we have been provided that information by an overseas jurisdiction, which we will not always have been provided—is, actually, the nature of the offence and the sentence that the person has had in that overseas jurisdiction. Maybe that is not a problem with Australia; I am not sure. We have not had answers to the question as to whether that—[Interruption] There have been gaps in the Australian situation—well, you should be able to ask the offender what was the offence that they were convicted of, and what was the penalty, and they should cooperate with the New Zealand authorities in providing that information. It is even more clear, in respect of some other jurisdictions where we do not have those close relationships but none the less this legislation applies to—because this does not apply just to Australia; it applies to other overseas jurisdictions, as I am sure the Minister understands.

My suggestion, Minister, is that we in this Committee amend that clause to make it clear that in addition to the identifying particulars that are as defined in section 32(5)—which I think clearly has to be read eiusdem generis and really relates to identifying particulars of the offender rather than their record of criminal offending, which is a different thing—the obligation of the person is to disclose the details of any overseas conviction and overseas penalty for any such conviction of the returning offender. Without that, I do not understand how you are going to be able to get from the offenders by right of law the information that the authorities need to determine whether the other provisions that kick in under this legislation apply or do not apply, because the tests that you have later in the legislation relate to the seriousness of the offence and the convictions. I do not see any way that you have got the right to require that information of an overseas jurisdiction. You might have cooperative relationships that normally provide that information that we in New Zealand do not have jurisdiction to require Russia or India or China to provide that information to us. What we could do through this legislation is require the returning offender to provide that detail of information, or at least cooperate with you in a way that enables you to get that information and if they do not, well, they suffer the consequences of not getting the liberty that they probably want.

Hopefully, this matter is not a matter that you are going to have to take an instant decision on before 10 o’clock. If you are, then you are going to have to—with respect—take a decision in the chair as to whether you think that my analysis of that is correct. [Interruption] Sorry, Mr Chairman. The Minister in the chair will have to take a decision as to whether there is a gap in the legislation, because, in my understanding, one of the things that the Government wants to achieve in respect of this is gathering the information that is needed, at the border, to assess whether these other flow-on consequences should apply to the person, and if you have not got the information as to what is the nature of the conviction and what is the nature of the penalty, I do not see how that can be done properly.

This actually raises the other question as to whether the review provision at clause 37 is adequate. I, for reasons that I have said previously but I have not had a response from the Minister while I have been in the House—I have not been in the House the whole time, so the Minister may have given an explanation previously. But this is another instance of why the review after 2 years by the Justice and Electoral Committee is no substitute for the process that the Labour Party Opposition was suggesting, and, you know, I like to think that I approach these matters from the point of principle. I agree that urgency is necessary—we are critical of why it is necessary, but we do not have to agree on that to agree that we should be doing this in the best possible way, given that we are in urgency. I still think it would be desirable to have a companion bill going to the select committee now with a sunset date in this legislation that was a reasonable period out. We had suggested a year—it could be 2 years. You could at the same time have a bill in front of the select committee that was hearing submissions upon it, which would have turned up issues such as the one that I have identified and some of them such as Denis O’Rourke and other members have identified, which could be resolved at the select committee process in the year so that the legislation that went forward from that period forward after the initial legislation lapsed could take into account all of those issues.

Another issue that I still await a response to is arising from clause 28(2), which appears to oust the jurisdiction of the court to consider the validity of a decision made by the Commissioner of Police that triggered the imposition of standard release conditions. It appears to me that clause 28(2) is an attempt to oust the jurisdiction of the court. I think it would be helpful to the courts, if the Minister has a contrary view, that that be expressed. I am not sure what the intention of clause 28(2) is, but it appears pretty plain on its wording to 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.” I am not clear whether that is intended to oust the jurisdiction of someone to go to court to say that the Commissioner of Police was ultra vires the preconditions to the issue of—sorry, I have forgotten the name—the determination notice that the Commissioner of Police issues. I would request that the Minister particularly consider this issue as to whether you are going to get all the information you need from an offender once they arrive back, on the border. Perhaps that could be considered overnight.

I have again listened to the contributions thus far on Part 2, and have tried to jot down for myself issues where I have felt that there has been a genuine issue raised by someone who has taken the time to try to understand the bill and is seeking clarity. I want to try to respond to each of those in the time we have left this evening.

The first one I am going to start with is one that has come up from a few speakers, which is around who is caught by the requirement to give identifying particulars and the information involved in that, and whether that is too wide. Metiria Turei raised the point earlier, and I did want to respond to that. That comes into the definition of who is a returning offender and, therefore, how wide that goes and how that works. So the first point is that the wording in the definition talks about, as I have made clear, someone who has been convicted of an offence that is an imprisonable offence in New Zealand. Just as a comparator, under the Policing Act, the requirement to provide identifying particulars—which, as we have discussed, is the same scope of information—applies to anybody who is being lawfully held in custody by the police; so much, much wider. For any offence at all that is arrestable in New Zealand you have to provide that information and, once it is provided, the system has it.

So what we are saying with returning offenders is, the bar is actually higher. It is only when the conviction relates to an imprisonable offence. So, in that sense, not only is the bill about putting society in the same position it would be in if these offenders had served their time in New Zealand, in terms of the supervision regime, you could say it is about putting the system in the same position it would have been in had these people been through the system here. But, in fact, it is actually even narrower than that because it cuts out anyone who was arrested or charged or convicted of a lesser offence. So I hope that assuages the member’s concerns somewhat. That is what I went back and had a look at after we had had a discussion.

The other point, which I think Miss Ardern raised, was the words around being liable for return as a result of that conviction. Again, the point that we are trying to pick up here is that there is a distinction between a New Zealand citizen who is travelling or has lived abroad who may well have had a conviction overseas but who is just coming home. There is no intervention of the other jurisdiction, there has been no suggestion their visa is going to be cancelled or is being cancelled—they are just coming back. There is no suggestion in any way that this legislation should therefore require them to provide returning particulars. So the wording here is making it very clear that their return to New Zealand is part of them being liable for removal because of that conviction, not that the conviction is there and they are otherwise liable for removal. Their liability for removal has to be as a result of that conviction. So the member’s scenario where it might be some long-forgotten historic thing that has nothing to do with their removal would not pass that threshold test.

The second thing, though, in that wording, the other thing we had to be careful of, is exactly the situation with the offenders who are returning back this week. You can be liable for removal, you can have had your visa cancelled, you can be going through a review process, or you may just have decided you are not going to fight it and you are going to go back voluntarily. So what we did want to make sure we captured is, where these offenders whom we are looking to capture are being returned to New Zealand, that the legislation covers them, whether or not they voluntarily elect to waive their rights and get on a plane once that process has started, or whether they fight it all the way and get deported under operation of law. So that is the wording but with those two safeguards: of the type of offence that is caught, and that the removal is as a result of that conviction. So I hope that addresses that in some way.

I want to come to David Parker’s comment about clause 28, which I think you raised in Part 1. I did not respond then because I knew it would come up more appropriately in Part 2. I can assure the member that my reading, my advice, and my understanding are, absolutely, that it does not oust the jurisdiction of the court. What it is reviewing, of course, is whether, once a standard condition is in place, it should be varied. If, of course, it was ultra vires and it is in position, then a standard condition has never been in place, but to make it even clearer we have got clause 22(5), which makes it very clear that the court has a jurisdiction still to review the determination notice. Nothing in that clause changes that so, yes, I think that does make that point clear.

Mr Parker, I also wanted to touch briefly on your typescript amendment that you have just put in front of us. I think you are quite right—I do not think there is going to be a need to make a decision on it tonight, so I am happy to keep talking to you about it. But what I will say is that I do not personally see at this stage that it is necessary. I think it runs the risk of being circular, in that you have to know the person’s criminal offending record to be able to declare them a returning offender, to be able to compel them. So if you are then relying on what they tell you as the justification for that process, I think it becomes circular. The advice I have had from the police is that they do have the ability, through their international counterparts, through Interpol—quite outside the new information-sharing regime we have with Australia—to seek that information. They raised no concerns with me that there is any inability to get that and, as I said, I think you would end up creating a circular argument. So at this stage I am not of a view that it is needed, but I am certainly happy to keep having a discussion if you want to, to address that slightly differently.

Mr O’Rourke raised some issues, and I think Carmel Sepuloni might have as well, around the detaining of offenders with a purpose of serving a notice and getting the identifying particulars. It is not at all uncommon to provide that the police have the power to detain for that purpose. Detaining simply means “Just sit here in this room while we work you through this notice and take your fingerprints.”, otherwise you are detaining them unlawfully. So it is not some “At will, as long as we like, whenever we feel like it we can lock these people up.” It is simply staying in the rules.

💬 Denis O’Rourke: That’s what it says, though.

No, because what you have is very long-established case law on exactly this sort of wording, which makes very clear what “detaining for such time as is reasonable to carry out the function” means, and nobody who operates in this area of law is under any illusion that it means anything other than a sensible amount of time to do what you need to do, without putting the police foul of the law. So, believe me, we have considered that and, I think, in the light of case law, we can be quite comfortable.

Finally, let me just come back to the final comment Mr Parker made around the review clause. I have addressed it. You may have missed it, but I accept the view that the Labour members put up. My view was that rather than having two parallel processes happening at the same time, the review should occur once we have a period of operation of the legislation. I have indicated that I am quite willing to talk with members if they think the structure of it should be set up differently in terms of who carries out the review or the period under which it is set to go. But I am of the view that that review will be a far more useful mechanism.

Now, of course, there is nothing that stops a select committee or, of course, myself or whoever the Minister is, reviewing it prior to that. But the point is to assure this House that the legislation will be compelled to be reviewed and returned to this House once there is a period of operation under it. I did consider the Labour members’ proposal. In my view it is unnecessary, and that the review proposal we have put in the bill is a better outcome. I accept that Labour members do not agree with that, but none the less I certainly did consider it and respond to Labour members on that basis. I think that is really all I wanted to respond to, in respect of the discussion tonight.

The only final point I would make is in respect of Mr O’Rourke’s comments, that there are things he would have liked to test. That is why I did offer you many opportunities to contact me with any queries and we could have discussed them and worked through them. You did not take that up, which of course is your right. In terms of what you have said in the House, I am comfortable that you have not raised anything that has not been thought of in drafting, but the offer is still there, Mr O’Rourke. If you think there are things that you think you would like to see changed, you are welcome to contact me over the course of this evening or in the morning. My door is still open. If issues can be identified, I certainly want to hear them and work with you on them. I may not agree, but we can at least have that discussion.

I have got just a couple of questions for the Minister around, again, clause 9, “Police may request returning offender to provide identifying particulars”. My colleague David Parker has gone through those particulars, namely—I will start from the second point—photograph or visual image, impressions of a person’s fingertips, palm-prints, footprints. All of those things are something that can exist along with the person’s name and date of birth, but my concern is the address. What happens to these people who turn up and they do not have an address to go to? I believe that for the first 5 days they will be put up in a motel or hotel. What happens to those people after those 5 days when they do not have an address to go to?

I ask the question because it is an offence not to provide that address. The offence is that they are liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both, and I would hate to think that just because they are people who have been deported to no fixed abode in New Zealand and do not have an address to provide the details of to a policeman, they would, in fact, be in breach of that particular part of this bill. So that is something that I would like to have cleared up.

What happens to these people who do turn up? They do not have an address. They are put in a motel for a couple of days and then, after that, what happens to them? They are given, I believe, only a couple of hundred dollars in their back pocket. That will not pay rent for particularly long, and after that they are on their own. That is the question that I would really like the Minister to answer. I think it would just be totally unfair for these people to be in breach of the clauses.

The other issue that I have is just around the wording in a number of the clauses. It is the word “may” that is scattered around.

Debate interrupted.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)