Returning Offenders (Management and Information) Bill

I want to return to the element of debate that my colleague the Hon David Parker raised during the debate on Part 2 of this bill. On this side of the Chamber, this element of Part 2 demonstrates to us why we should be undertaking a dual process with this piece of legislation because this appears, from our perspective, to be a drafting flaw in Part 2 of the bill.

As has been discussed previously, this bill derives a lot of its meaning through the cross-referencing of other Acts, primarily the Parole Act but also, under clause 10 of the Returning Offenders (Management and Information) Bill, the Policing Act 2008. That part of the bill makes particular reference in clause 10 to the ability of police to detain returning offenders—returning offenders being the entire cohort, not just returning prisoners—for the purpose of taking identifying particulars. It will seem obvious on first blush why we would want a provision like this in the bill. The ability for the police to detain is set out in clause 10(2), “for a period that is no longer than is reasonably necessary in the circumstances for a constable to take the identifying particulars of the offender”. That is similar language to what is used in the Policing Act. In a sense, what we are doing here is allowing the police, once a returning offender comes back into our borders, to take relevant information for police files. When I say “relevant information”, we have codified that in this legislation by cross-referencing the Policing Act.

And it is not just identifying particulars that we are seeking; for the purposes of the Criminal Investigations (Bodily Samples) Act we are also seeking DNA samples where that prisoner qualifies under the bodily samples Act. But the bit that I want to dwell on again—it was raised by David Parker, and the Hon Amy Adams undertook to take the issue away, but when the Committee rose last night it seemed particularly clear to us that there would be no movement on this issue, and this is the problem. Under the Policing Act 2008, Part 3, “Powers, operations, and offences”, section 32(5) states: “ ‘identifying particulars’ means, in relation to a person, any or all of the following: (a) the person’s biographical details (for example, the person’s name, address, and date of birth):”—we have already highlighted that this will obviously be incomplete information, given many of the people returning to New Zealand will not have a specific address—“(b) the person’s photograph or visual image: (c) impressions of the person’s fingerprints, palm-prints, or footprints”. Obviously here we are not talking about DNA because that is covered by the Criminal Investigations (Bodily Samples) Act.

Nowhere in these requirements under “identifying particulars” in the Policing Act, which is the direct reference for this bill, is there anything about taking information about the nature of the deportee’s offence or offences. There is an obvious reason for that according to the Policing Act, and that is because within domestic legislation—of course if they are in a police station having their particulars taken it is because the police have charged them with an offence and they of course know by default what offence has been committed. It makes sense.

For this legislation we have got a completely different set of circumstances. For the legislation that we are debating here, the person will have been charged and convicted in another country. We do not necessarily have that complete information, so when we take those identifying particulars it would make sense that in Part 2 of this bill we be very specific about allowing the police to require that information to be shared. One might argue—the Minister could argue; the officials might try to argue—that we might have that information from an overseas jurisdiction from which the person has been deported. We know that that may not necessarily be the case.

How do we know that? Because in our discussions with the Minister in the lead-up to this bill being developed, new section 27(1A), from memory, was added quite late in the piece because the Minister discovered that the 20 individuals who are being deported to New Zealand this week did not have complete information. New section 27(1A) in Part 2 has been added quite late by the Ministry of Justice for good reason—to allow those with serious offences, for instance, sexual assault, murder, rape; what we would consider to be serious offences—to have the courts required to issue interim orders unless there is any reason not to. We know that we may not have complete information about some of those offenders in order to make a complete application in that early stage when they first arrive. So the fact that new section 27(1A) exists demonstrates to us the incomplete information that is coming back with some of these deported individuals, and acts as further evidence of why there should be, under clause 11 of Part 2, under the provision about police taking identifying particulars, an additional set of particulars, and that is the nature of offending—the nature of the offences—and it could be that you could define it as “for which the individual was deported from an overseas jurisdiction”. As it stands, the Policing Act 2008 is incomplete for the purposes of this bill.

If the Minister refuses to add this, we are creating a rod for our own back, and we will have a farcical situation where a tourist coming into New Zealand for the purposes of visiting casually will be required to give more information on an immigration declaration at the border than we will require a person who is being deported back to New Zealand because of their offending, and that is because we will not be requiring that same level of disclosure, and we should be. It would be farcical to simply rely on being able to access information via Interpol in order to complete information we could simply require to be shared by an offender. For goodness’ sake! We are taking their DNA samples. That is the most invasive gathering of information that is possible under New Zealand law, and yet we will not require them to disclose their offences.

From Labour’s perspective, this particular drafting oversight demonstrates to us why—and I highlight this again—we would have liked, within this part or perhaps attached to the title and commencement clauses, a sunset clause, which would mean that this bill would expire within a year, and, at the same time, we would be passing a duplicate bill at first reading that would then progress through the House, through all stages, to allow us to pick up these kinds of errors and to allow us to give the public time to have their say. It would also allow the legal fraternity to have their say on this piece of legislation, and we would make sure at that point that such errors did not occur. We do not believe that simply having a review after 2 years is sufficient. It means that errors like this would remain longer than is necessary, and this Parliament does not operate on the basis of trial—that we put out a law and just see how it goes without having a proper process up front, and that is essentially what we are doing here. I would really appreciate the Minister giving us a final word on whether she will be undertaking to make that drafting change. Otherwise, we think it is farcical that it is not included, and, again, it proves our point on the rushed nature of this legislation.

I want to speak very briefly in the 1 minute I have remaining to a similar issue around the default provisions in the Parole Act, which this part references, and it is the standard release conditions. Again, we have this bizarre reference in this bill, in clause 4(2), that says: “In this Act, unless the context otherwise requires, a term that is used but not defined, but that is defined in the Parole Act, has the same meaning as in that Act.” So, basically, it is a catch-all that says: “If we haven’t defined something and you’re a bit confused and you don’t find it here, you should find it in the Parole Act, we hope.” It is a catch-all phrase, because of the obviously rushed drafting. The Parole Act 2002 standard release conditions, on reading, are not designed for someone who is deported from overseas, are heavily reliant on existing information being available, are heavily reliant on their being released to a known residence, and are heavily reliant on that person not being transient. These standard release conditions, which we are cross-referencing here, are not necessarily fit for purpose for people who are being deported. Again, it shows the rushed nature of this bill.

If I had been part of the select committee process, which, of course, has not happened on this bill, there are some questions that I would want to tease out as part of that process. I want to turn particularly to clause 17 of Part 2, “Criteria for determination that person is returning prisoner”. One of the things that I would have wanted to tease out through the select committee process is the comparability of laws and sanctions in different jurisdictions to ensure that we capture, through this clause, all of the people whom we hope to capture. So it seems to me that the principle that we are trying to achieve here is to ensure that somebody who is coming back to New Zealand, having been sentenced offshore, is treated in New Zealand in a similar way to the way they would have been treated had they been sentenced for that offence here in New Zealand.

The wording of clause 17 leaves a little bit of ambiguity, which I would like to seek some reassurance on from the Minister in the chair, Nicky Wagner. Clause 17(1) 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;”. So the first part of that suggests to me that if someone has been sentenced offshore for something that is not imprisonable in New Zealand, they would not, therefore, be covered.

Other jurisdictions have things that are illegal that in New Zealand are not illegal. So if somebody had been sentenced offshore and is returning to New Zealand, and that was not an illegal activity, they would not, therefore, be covered. My understanding of what the Minister of Justice contributed in the debate yesterday was that that, therefore, meant they would not be covered. The Minister used the example of some jurisdictions having imprisonable offences for criticism of the monarchy, for example. If somebody did that offshore and was imprisoned for that and came home to New Zealand, they would not be covered because in New Zealand that is not an imprisonable offence. But when we get to clause 17(1)(b) it says “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 that I am interested in this is that different jurisdictions will, obviously, treat things more severely or more leniently than they may be treated in New Zealand.

So the question that I have is, if someone had served a prison sentence overseas, for example, that might have been significantly less than what they would serve in New Zealand and, therefore, does not fall within this criterion, does that not mean, therefore, that we are not capturing all of the people whom we are attempting to capture through this legislation? So had they been sentenced offshore to, say, 6 months’ imprisonment for something that in New Zealand would have given them a minimum prison sentence of, say, 2 years, why would they not be captured by this? That is one of the questions that I would like to get some reassurance from the Minister on, because it seems to me that clause 17(1)(a) suggests that what we are trying to do is achieve consistency with New Zealand law, yet clause 17(1)(b) does not have any such additional requirement in terms of the length of the sentence. So I would like to get some further clarification and advice from the Minister on that.

The next part, in clause 17(1)(c), says: “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.” And, again, there are some areas of ambiguity that I would quite appreciate some clarification from the Minister on—and can I welcome the new acting Chairperson to his significant elevation and I congratulate him on that. Some clarity from the Minister, just regarding the returning to New Zealand within 6 months, is needed. The reason why I am interested in this is that if somebody is sentenced for child sex offences in an overseas jurisdiction, they have completed their sentence, are released into the community, and have been at large within the community for more than 6 months, why would they not therefore be covered by this clause, and if they are going to be covered by other provisions, what would those other provisions be? Those are the sorts of questions that, had this bill been to a select committee, I think we would have clearer answers to than the ones that we have had so far to date from the Minister.

Those are the brief questions that I have for the Minister at this point in the debate. I have further questions as we go along, but I see the Minister taking notes so I am hoping that we will get some answers to some of those before the debate proceeds.

With your indulgence I would like to be able to give some context to my speech, which I hope over the course of this debate becomes quite fulsome. Yesterday when I was in the House I tried on several occasions to rise to take a call on this particular bill and was unable to do so, and I feel I must give my contribution some context.

I was very disappointed to see the passage of this bill rushed through the House under urgency. There should be very good reasons why bills come to this House under urgency. Not only do we have one bill, not only do we have two bills, but we have three bills that this House needs to debate and review and pass under urgency. For the other two bills that are coming up there are valid reasons why this has to occur, but for this bill, I do not see why it has taken the Government almost a full year to get this bill to the House. When it does get here it is full of holes, it is poorly drafted, and it will require a significant amount of re-work at some stage. And are we going to be given the opportunity to do that in a timely fashion? No, we are not. We are given 2 years to sit and wait and see how this bill develops over the next couple of years. The impact that that is going to have on the returning offenders is going to be a wait and see.

I am very concerned that the Minister has done this because I would not have expected that of her. I do not heap praise on members of the Government often but I think that Minister Adams is a credible, capable Minister, and I would have expected better of her than this bill, which appears to have been rushed at the last minute, with amendments at the 11th hour before the bill is read in the House. Frankly, it is not good enough. In fact, I would have expected this type of drafting legislation to come from other Ministers across the House, such as the one who will always have the ignominy of saying that worm farming is dangerous to workers.

But this bill has got a really truncated process. Members of the Opposition, and in fact members of the Government, should be given the opportunity to speak on behalf of those who would have presented at select committee. We should be given the opportunity, and we will be given the opportunity, to speak their voice because they are unable to speak for themselves. There would be many submitters on this, because this is a very emotional bill. There are many aspects of it in relation to the New Zealand Bill of Rights Act, in relation to human rights, and in relation to the safety of the public that need to be explored fully. We need to make sure that this House is given the opportunity to do that.

I want to speak particularly to some of the aspects that have arisen, notably around clauses 20 to 26, which talk primarily about the monitoring process that will happen once these people have landed. Let us face it, they are sitting in a plane waiting at the end of the runway to taxi to come here, and we are, at this 11th hour, attempting to put this legislation into place so that we can have some confidence in the safety that will go in place around monitoring them.

From reading the regulatory impact statement, it would appear there are many policy statements but no clear direction on how we are actually going to support these people when they arrive. That is a major concern because if this bill is about the safety of the New Zealand public, and we have not decided how we are actually going to monitor these people—we have not got the policy developed and in place—there is a serious flaw here.

I want to talk about the people from People at Risk Solutions in Christchurch, and notably Helen, who came and saw me several weeks ago with a woman in tow—I will just call her “J”—who arrived in New Zealand from Brisbane with 3 days’ accommodation arranged and $200 in her pocket. That is all she arrived with. She would have been caught up in this piece of legislation.

How is it that we are going to be able to cope with the influx of offenders returning to New Zealand if we have not got the basics in place to actually support them? What is the impact? If we were at the select committee we would be asking the officials to give us the costing. What is it going to cost the New Zealand public to put this in place? We would be getting some really good information from officials about what the monitoring programme looks like. We would be getting some really clear steers from officials about what rehabilitation needs to go in place. We would be getting a really good understanding of the implications of the human rights aspects of collecting DNA and blood samples of people.

We would also have a much better idea of these offenders—what their offence history is. At the moment, that is very unclear, and, in fact, we do not know for sure that we will ever have the full disclosure of their offence history. How is that acting in the public safety of the citizens of New Zealand? If we had given this piece of legislation the due process it deserves, we would have had many of those questions answered before the bill came back to the House for the Committee stage and final readings. Unfortunately, we are not going to be given that opportunity.

I sat here in the Chamber when members of the Opposition parties rose and asked questions and sought advice and put their speeches, and not a single member of the Government stood and took a call to defend this process. The only person who spoke was the Minister, at the end of the night. Why is that? Why are we not getting the Government MPs getting to their feet, taking a call, and actually providing some context—

💬 Hon Ruth Dyson: Maybe it’s because they’re useless?

You are absolutely right. They are like cocktail sausages on sticks, sitting over on the other side of the Chamber, just sitting there—

💬 Hon Ruth Dyson: Don’t be so rude about cocktail sausages.

I apologise to cocktail sausages. They are sitting there, please—do they even have copies of the legislation in front of them? One member across the other side of the Chamber. How is that? You bring the House into urgency—not you, Mr Chairman. The Government brings the House into urgency and the Government MPs do not even have the ability to stand up and defend their Government, defend this urgency process, and defend the fact that members of the public have not been able to have their say on this very serious matter.

I challenge the members across the other side of the Chamber not to just stand and move closure motions but to actually get up and do the work of Parliament and do your debate. If you actually have your pieces of legislation in front of you, that is for you to refer to. Anyway, thank you for this opportunity. There is much more I would like to debate and I shall refer to that, but at this stage I would like to see whether the Government MPs would like to take a call. Thank you.

I just want to talk about the two amendments that the Green Party has put on the Table. They relate directly to the review clause, which I think is clause 37, at the end of the bill. That clause provides that the Justice and Electoral Committee must, 2 years after the commencement of this legislation, review the operation of the legislation. The Minister has said that the reason for the 2-year time period is to give the law a chance to be operational and for various experiences to be had, and to understand how the law may or may not be working effectively and what could be improved. She has also said numerous times, including late last night, that she is open to narrowing the time frame for that review.

We have put two amendments on the Table to change the review period from 2 years from commencement of the legislation to either 12 months or 18 months from the commencement of the legislation. Our preference is for there to be a review in 12 months, and that comes as a result of the information from the regulatory impact statement, which describes just how many offenders the Government expects to be returned to New Zealand over the next period. It is saying that 280 will return to New Zealand in the 2016-17 year and again in 2017-18—plus, we have a bunch arriving tomorrow, and we will have more over the next few months. So there will be a large number of New Zealanders returning under section 501 of the Migration Act in Australia and subject to this bill that we are debating. We do not think that we need to wait much longer than 12 months to see how those 100 or 200 people will be affected by this legislation. There are more than enough examples of the implementation to know whether or not the law is working effectively and what we should be doing to change it. If the review is delayed much longer than 12 months from now, the chances of fixing the law before the next election are very slim.

I will just go back and say that the 2-year review currently in the bill means that the review will not start until about the same time as the general election in 2017. If it starts just before the general election in 2017, nothing will happen for the entirety of the 3-month election period, and probably nothing until the beginning of 2018, at least, because of the time it takes to get Parliament up and running again. So the actual review itself might well be 2½ years away, and possibly no changes will be made for 3 years—and that, frankly, is just too long. So let us bring the review period back to a more reasonable time frame where the process starts at least a year before the general election, gives a chance for a few months of review by the select committee, and then gives an opportunity for the Government to look at the recommendations for change and to construct the legislation for change, and for that to go through the House.

As we have seen with this particular bill, we know how long policy development and the drafting of legislation can take. We do not want to be in this situation again, where we have urgency for such critical legislation that deals with criminal law and human rights. It is a very poor process for such important legislation. Our argument is: bring the review forward and make sure that it can be completed and that the legislation can be drafted, and preferably passed, well before the general election. That way we will know both that the human rights of the offenders who are returning will be better protected, because there will be a closer review of what happens to them—there will certainly be enough examples of how the legislation affects offenders, because so many will be returning in the next 12 to 18 months—and that the lawmaking process can get back on track. We want to have good quality law. We do not want to be debating law that is riddled with mistakes. They are not intentional mistakes; it is just the consequence of a rushed job.

We are supposed to be professionals at the lawmaking business, and we can do much better, but only if the review clause in this bill is changed to make sure that we have the time to do our jobs properly. We owe it to the New Zealand public to do our jobs as best we can and when we are making law about human rights and criminal law, to apply all of our best efforts to the best quality job. So I am strongly advocating to all parties, including the Minister and those Government parties, to support, preferably, the 12-month review. I think that gives us the best amount of time, but even the 18-month review period will at least get us started well before the election. It better upholds our reputation as a lawmaking institution that makes sure it does the best and creates the best possible law in these circumstances. Thank you.

Can I thank Metiria Turei for those amendments, and I am sure that the Labour Party would support something like that, to bring forward the review. We still think it would be preferable to have a two-track process, starting today, which would have put a parallel bill to a select committee for consideration of submissions that could be called tomorrow by the select committee and be heard in the normal process, and within a year we would have a fully worked-through, parallel bill that fixed all the mistakes that, no doubt, there are in this bill—and there is no doubt that there are mistakes in this bill. That would take effect on the expiration of this bill, which could then have a termination date of a year from today. That would be a better solution, but the Government has rejected that. I think that that shows how abusive it is of parliamentary processes generally and how unconcerned it is to get the exact balance right between civil liberties but also how unconcerned it is to protect the members of the public properly in the interim period between now and that review, which it has got currently set out there 2 years ahead.

On that last point, I want to return to an issue that I raised with the Minister of Justice last night, which is that as far as I am aware, there is nowhere in New Zealand law a requirement for people who have got convictions overseas to disclose those to the New Zealand authorities. Government members are not saying I am wrong, we have had no advice to the contrary from the Minister, and it seems to be nonsensical. Someone can return to New Zealand with a serious criminal offence overseas and no New Zealand authority has got the right to get that information from them. It might get that information from Interpol, sometimes. It might get it from a cooperating country like Australia, sometimes. There are other countries in the world that are in no state, because of their civil disorder, to provide us with that information, even if they wanted to. So, no doubt, there are instances in New Zealand where returning serious criminals do not have a duty to provide information on what those convictions overseas were.

Let us take what happens under this bill. This bill applies only in respect of orders for returning prisoners if those people have been returned within 6 months of their release from custody—so we cannot find any protection in subpart 2 in Part 2 of the bill—and in respect of Part 1, the only thing that they are required to provide us with is identifying particulars, and, as I have said in earlier contributions, those identifying particulars as defined in the Policing Act are biographical information. They go to identification of the person, not their convictions. So there is no doubt in my mind that that classification of identifying particulars in this legislation does not extend to their prior convictions.

I want to also point out another problem with this bill that I think is unintentional, and, again, it points to why we should be having this two-track process. Clause 9 of the bill says that “The Police may, as soon as is reasonably practicable, request a returning offender to provide identifying particulars and may detain the offender under section 10 if the offender refuses.” Clause 10 then says that the right of detention applies for only 6 months after the offender’s return. Again, it is clear that this requirement to, effectively, have a compulsion mechanism so that you can get those identifying particulars applies for only the first 6 months after someone’s return.

What is the policy rationale for that? I do not understand why it is that you would not want to have particulars of people for whom, maybe because of Australian incompetence or New Zealand authorities’ incompetence, it does not happen for the first 6 months. All of the sudden there is no need to have the particulars of people who have committed serious offences but who were not picked up in the first 6 months. Indeed, this actually shows a problem in this legislation in respect of what has already happened.

I agree that you should not have retrospective legislation that places people at double jeopardy retrospectively, but it is actually a different thing to say that, prospectively, information you should have collected previously but you have not collected because of the incompetence of the Government—that you should not actually have the right to collect that information in the future if that is necessary to protect New Zealanders. I think that it is proper that the New Zealand authorities get information on people who have had serious convictions overseas after they return to New Zealand, even if you do not ask for it for the first 6 months. After this legislation passes, we can do something in respect of the first 6 months, but not thereafter.

Another issue, which actually cuts the other way, is that we actually might be going too far in respect of some offences. I was thinking about situations that go the other way. If you are a person who is under 27 years old and you are a New Zealander, you have got rights to live in the United Kingdom for up to 2 years and get a work permit. I think that is, in general, the rule. It might have been tightened a little, but it is something like that. I know this to be a particularly relevant issue, because it actually happened to a friend of mine. A friend of mine stayed over there for longer than the 2 years and was then at risk of prosecution. She actually departed from the UK, but others do not and actually overstay, in breach of the immigration laws in the UK. If they are convicted it is an imprisonable offence, and it would be an imprisonable offence in New Zealand too, the maximum sentence for which would be more than a year’s imprisonment, I think.

You would also be liable for deportation. Even if you were not deported, you would be told that you were liable for deportation and you would find yourself coming back to New Zealand. You would actually be a returning offender within the definition of clause 7(a). We might want that, but I have not heard any Government member or the Minister actually say that that sort of returning offender is going to be caught by this legislation. I think in theory they are, and yet with regard to the person whom I have talked about earlier—the person who might have had a murder conviction or a paedophilia conviction in an overseas jurisdiction at some earlier period and who comes back to New Zealand—we have got no right to get the particulars of their prior offending, even if they might pose a threat to the New Zealand public. That is another illustration of how this legislation might not be getting the balance right. It might be attaching to people to whom we, as a Parliament, might not think it should attach; it might not be attaching to people to whom it should attach in order to protect the public.

That is another reason why I cannot see why the Government is being so stubborn about refusing to allow the parallel process, where a second version of this bill goes to a select committee so that we can actually consider these issues. Members of Parliament on this side of the House have done their best to make these contributions upon a simple reading of the bill, thinking what the implications might be. People who are more expert in areas of the law than we are—specialists or people from the Law Society with a special interest or victim impact groups—will have other issues with this bill that we have not thought of, and we are not going to get the opportunity to improve this legislative regime as a consequence until we have a review.

I suspect the Minister is going to come and say “Well, look, maybe the review period should be brought forward a little bit so it doesn’t coincide with an election.”, and that is a good thing. I thank the Minister for that, and we in the Labour Party would support that if the Minister were to do that.

Finally—and I will just recap on one point for the benefit of the Minister of Justice, who is now in the chair—I do not accept the circular definition point. One of the points the Minister made yesterday was there would be some circularity introduced because if you have the requirement to provide particulars but you do not know that they are an returning offender, then you would not necessarily know to ask them, and therefore it is circular. It is actually not circular; it is just that it would not always apply. Given that clause 9 in terms of the request for identifying particulars always applies—it does not expire after 6 months; the only thing that expires is the Government’s right to detain for non-compliance with the request to give identifying particulars—I think we are left with a gap in the law.

It is a nonsense that someone who has returned from overseas—let us say someone is picked up on a suspected paedophilia charge outside a school. This could happen; it does happen in New Zealand. The police say “We don’t know about you. What have you been up to?”, and that person says “Oh, look, I’ve just come back from overseas. I’ve been overseas for 10 years.” That person has got no duty to tell them whether in that 10-year period they were spending, you know, 10 years in prison in Pakistan, or something, for charges relating to children.

That has got to be a nonsense, and we can fix it in this legislation by requiring that a person who returns from overseas who is a New Zealander who has been convicted in an overseas jurisdiction of an offence that constitutes an imprisonable offence in New Zealand and who was liable for deportation—you do not have to be deported; you just have to be liable for deportation—has a duty to provide information to the police, if requested, as to what their conviction was overseas and what their penalty was. It seems to me a very sensible proposition from the Labour Party, so I would hope that Parliament backs my amendment.

I want to take a call to talk on a typescript amendment I have tabled this morning picking up concerns and discussions that I have had with other parties over the course of the evening. I said last night in my contribution that I was happy to continue to talk to parties and, if we found areas of common ground, to support them where they made sense. This morning I have spoken with the Green Party, the Māori Party, and the Labour Party—I am sorry, Mr O’Rourke, I have not had a chance to reach out to you—around the clause on the length of the review. There was some concern expressed to me that there was a preference of this Committee that the review period be shortened from 24 months, or 2 years, to 18 months. The Government will support that, and so I have tabled an amendment doing that, which will be coming to members. It also just picks up some advice I have had from the Clerk, which I do not think will be of any great concern to the Committee.

Just so that you are all aware, the bill as introduced talked about referral to the Justice and Electoral Committee. This amendment is just providing more flexibility so that the Clerk can nominate the appropriate committee because, as we know, various parliaments constitute committees in various different ways. So because it has just been tabled I will read it to you: “Replace clause 37 … with: 37 Review by select committee. A select committee to be determined by the Clerk of the House of Representatives must, 18 months after the commencement of this Act, review the operation of this Act and prepare a report on that review.” So in other respects it is the same but with a shortened time period and just making sure that there is no issue around the select committees at any point in time being reconstituted, as the Clerk would have the ability, obviously, to determine the appropriate one, which I do not imagine members will have any great concern with.

I did just want to also come back to Mr Parker. We discussed last night that I would consider his typescript amendment around whether we need to add the requirement for a legal compulsion on returning offenders to give us their criminal histories. My view at that time was that it was a circular argument and that we would need to have their criminal histories to know that they were returning offenders to then collect the information, but I undertook to confirm that. That is certainly the advice that I have had through from officials. Without their criminal history records we cannot classify them as returning offenders. The only way that we could make sure that was comprehensive would be, potentially, to require every returning New Zealander to disclose all criminal convictions, and that is not a step I am prepared to take as an intrusion on New Zealanders returning to their home country.

So, firstly, I am convinced that to do it in the manner proposed where it is only returning offenders is circular because we already know their criminal histories at that point, but the other point I checked in discussion with Mr Parker was whether police were confident that they had the ability to get criminal history information from any jurisdiction. They assured me that they are. They assured me that they are and that they do not see that as necessary, so on that basis we will not be supporting it.

The other point I would make is that once a person is identified as a returning offender we of course have the ability to take their biometrics, take their details, and then of course continue to follow up. So we will have enough information to determine them as returning offenders and then in the future, obviously, with biometrics we can continue to build on that. But the police’s advice to me is that it is unnecessary, the legal advice to me from my department is that it is circular, as I had first thought, and so on that basis we will not be supporting that amendment.

I thank the Minister of Justice for her contribution. There is an episode of The West Wing where the President’s chief adviser Leo McGarry paraphrases Otto von Bismarck about there being two things you do not want to see being made, and that is laws and sausages. I think this is one of those instances where you wish you did not see a law like this being put together in this fashion. It has been rushed, and I think the contribution that the Minister has made around an amendment she has just tabled and an amendment tabled by my colleague David Parker is pure evidence that the Government is rushing this piece of legislation through. It should have had time when it first had notice of the need to address these returning offenders and returning prisoners. It should have been addressed at the beginning of this year.

Mr Chair, I know you want me to speak to Part 2, so I will talk about it in the context of what is and what is not in this part. What is in this part is some of the easy stuff, and what is not in this part is some of the stuff that there would have been questions about if this were to go through a select committee process. Some of my colleagues have talked about that stuff, which includes some of the services that would help reintegrate and monitor some of these returning offenders and returning prisoners.

The easy stuff is in there. I will look at an example, and that is clause 13, which states that it is an offence to not comply with a constable’s direction if they feel that they have to detain you or they want to get information from you about your offending or your convictions overseas. Clause 13 is pretty simple. The easy stuff is in there. But if we had the opportunity to sit down in a select committee—and it would have been the Justice and Electoral Committee or the Law and Order Committee—we and, I think, some of the submitters would ask some pretty basic questions of the Government around what we do with these people when they get here. What kinds of support services do we have for them? What do we do around reintegration? It is my understanding that when the Government took a snapshot of offenders or those who had been convicted and have come back from overseas over the last couple of years, the reoffending rate of those people was roughly 20 percent higher than for those who had been released from New Zealand prisons. So we do have an issue, because the likelihood is that these people coming to our shores, having been deported, will have a much higher reoffending rate than those who are released from New Zealand prisons.

The CHAIRPERSON (Hon Trevor Mallard): I am going to interrupt the member. I am going to invite him to now move from a general second reading type of speech to a particular discussion of Part 2.

Thank you very much, Mr Chair. I was speaking around reoffending. I guess in relation to David Parker’s amendment, which changes clause 9, having more information about their offending and what level of risk they would pose would be helpful to the Government in being able to offer them those kinds of reintegration services. The fact that David Parker had to put forward his amendment shows the rushed nature and the ill-thought-out nature of this piece of legislation.

For those at home who want to know what Mr Parker’s amendment is about, it amends clause 9 around the identifying particulars for people who are deported to New Zealand. In clause 9 he wants to add the words “, and the details of any overseas conviction and overseas penalty for any such conviction of the returning offender,”. You would think that one of the basic things in this piece of legislation would be to know not just who they are, because as it stands we understand the identifying particulars just tell the authorities who this person is.

To get an idea of how much of a risk they may be to the public—because this is what we want to make sure we can mitigate for, for New Zealanders, and this is what the Government claims it is putting this piece of legislation forward for—we want to know exactly what risk profile these guys and these women may have to the New Zealand public. But in the bill itself we do not have the mechanism to be able to find out what they may have been convicted of. So Mr Parker has seen fit to put forward this amendment to clarify what “identifying particulars” are. Are we surprised that we have had to do this? Well, no. Within the regulatory impact statement we find a statement that is becoming all too common.

I would like to talk to clauses 16 through to 20 regarding returning prisoners. Clause 16 talks about who is a returning prisoner. Clause 17 outlines the criteria for determining that a person is a returning prisoner. Clause 18 talks about the time for the commissioner to determine that that person is a returning prisoner. Clause 19 states that “[t]he Commissioner must serve a written notice on a person (P) who has been determined to be a returning prisoner.” Clause 20, though, describes what that determination notice must look like. It states that a “determination notice must—(a) state that the person named in the notice (P) has been determined by the Commissioner to be a returning prisoner for the purposes of this Act; and (b) state that P is subject to release conditions under this Act; and (c) state the period for which P is subject to release conditions;”, and sets out the standard release conditions. It states that the person “must report to a probation officer at a probation officer at a probation service centre within 72 hours of service of the notice; and (f) provide information about how to contact a probation officer;” and so on and so forth.

But what this does is actually neglect the actual human side of this situation. If we take, for example, the planeload of prisoners who we believe are arriving in the next day or so, if they are prisoners who have come off Christmas Island let me tell you now that they will be traumatised, they will be upset, and they will be in shock as to what has happened to them over the last few days. They will come here. They will not have legal representation when they get here. They will have difficulty making sense of anything that the authorities throw at them, such as this determination notice that they are a returning prisoner.

We have got to remember that these are people who are coming under extraordinary circumstances and that what are standard release conditions to New Zealand prisoners who have had time in prison here, who have had access to their lawyers, who have had access to legal advice—those conditions do not apply to the people who will be arriving on planes. Their lawyers are over in Australia. The chances are they have not seen their lawyers for probably 8, 9, or 10 months of their detention, because part of the system in Australia is that they are being denied regular access to their lawyers.

So they are getting here without any legal representation, without any support people around them, without any support base whatsoever, without their family or friends being at the airport to greet them, and yet they are expected to make head or tail of this determination notice. All things going well it would be served on them immediately upon landing here in New Zealand, or, if not, within a practical time, but certainly not greater than 6 months out. Maybe after 4 or 5 months of being here they might actually have been able to settle down and just get their heads around what has actually happened to their lives. Their lives have been flipped into turmoil, basically, from being put in detention, going through the whole situation in the detention centres—in particular, Christmas Island—to then being taken off the island and being taken back to a prison in mainland Australia, then being brought here.

They will be in shock, they have been traumatised, they will not know what is going on, and yet they are going to be whacked with this official notice without any legal support, without any assistance—or very little assistance—from the authorities. They do not even know where they are going to be living. They do not know beyond 5 days what is in store for them. They will not have an address to go to. They will not know. If the motel that they are plonked in is in Auckland somewhere, in 5 days’ time they might be in Hamilton, they might be in Rotorua, they might be in Whangarei—they might be anywhere in New Zealand. And then the whole situation changes because then they have got to find a new probation officer, they have got to find other people to report to depending on the location where they are going to end up.

So I have real concerns about the human side of this. It is fine for the work to be done here, but it is basically in a vacuum without regard for what those men and woman have gone through. That is why I believe that this should not have been done through urgency. We have had enough time through the course of the year to write this legislation and to do a good job of it. Instead we have heard that it has been drafted in 12 days.

I think when considering the Returning Offenders (Management and Information) Bill we need to try to think about the practicalities of it and to try to take a practical approach to some of the issues that are bound to arise with new legislation. I support what a lot of other members have said about some of those issues.

We are currently thinking a lot about Australia and its deportation of offenders from there, but we also should think about some of the issues that may arise where people are being deported or who are just arriving indeed from other countries. Some of those countries will not be friendly countries. Some of those countries will be places from which it is difficult to get information. We need to think about some of those issues as well. So it is in that light that I believe that the Government should seriously consider and, in fact, adopt David Parker’s typescript amendment.

I think he raises a very good point in that the term “identifying particulars” used in clause 9, and defined in clause 4 as having the same meaning as in section 32(5) of the Policing Act 2008, simply refers to the provision of name, address, date of birth, and the provision of a photograph, fingerprints, palm-prints, or footprints. That is all the information that that section provides. So what we are going to get as a result of this bill when it is enacted is that information.

It seems to me that what we also need to be able to get—at the border if necessary, or as soon as possible after a person returns, whether from deportation or just arriving—is details of convictions. As I have said, that may not actually be readily available from countries that are not friendly or cooperative or just do not have the facilities or the capacity or indeed the intention of providing that information for us, so that information needs to be obtainable from the person concerned.

Details of convictions are at the heart of the bill. It is that information that the rest of the bill actually depends on, and yet the bill seems to be deficient in not really attending to this issue of being able to adequately require the person concerned to give that information and as soon as possible. So I think that David Parker’s amendment to clause 9, which would add the words “, and the details of any overseas conviction and overseas penalty for any such conviction of the returning offender,” is absolutely necessary. I do not understand why the Minister is not seeing it in that light and actually adopting that amendment.

I heard what she said about this idea of a circular argument, but I do not think that washes at all. The point is this: the police or an immigration official, or whoever is in the position of needing that information, should be able to insist that that information be provided. It does not seem to me that that is in any other legislation. It does not seem to be in the Policing Act. I cannot see it there. It is not in this legislation. That is the information that is really fundamental to this legislation, and yet there is not even a requirement for a person to respond when asked to give details about convictions or penalties.

So I think that for that reason this amendment by David Parker is one of those that should be adopted by the Government. After all, what possible harm could it do anyway? What is wrong with being able to ask and insist on an answer to a question as basic as “Do you have any convictions from the countries you have been in, and what were the penalties?”, and so on. That seems to me to be quite basic.

I want to also move on to some of the other amendments that have been tabled and, I think, deserve consideration. One of those deals with clause 37, and that is a very important clause, because we all know that this legislation is going to require review.

I move, That the question be now put.

We have now been on this part for 2 hours, and I think it has been half an hour at least since I heard anything that was new. So I think the Committee is in a position to make a decision on the matter.

A party vote was called for on the question that the question be now put.

While the Clerk is adding up the votes, I will remind people—I will pretend I did not hear, I think—that if people call for a division from a particular point of view it is a requirement to vote that way. I will not name the member who appears to have done the opposite.

We come to the two amendments in the name of Metiria Turei, which I am going to now rule out as being inconsistent with the bill as amended by the Minister’s amendment.

Part 2 as amended agreed to.

Schedule 1 agreed to.

Clauses 1 and 2