Returning Offenders (Management and Information) Amendment Bill

I present a legislative statement on the Returning Offenders (Management and Information) Amendment Bill.

ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Returning Offenders (Management and Information) Amendment Bill be now read a first time.

A recent High Court decision found that the Returning Offenders (Management and Information) Act 2015 does not apply retrospectively. The court also found that natural justice requires the Commissioner of Police to provide notice and a right to be heard before determining a returning offender’s status under the Act. The effect of the decision means that the Act is not available for returning offenders, such as 501 deportees from Australia, who offended before the Act came into force in 2015. The decision would also delay the making of returning offenders orders, which are currently served on the person as they enter the country.

There are currently about 265 returning offenders being managed by the Department of Corrections on particular conditions, and of this cohort about 40 are being managed for convictions that pre-date the Act, with several considered to be high risk. The court’s findings mean that these offenders could apply to have their order quashed, and, further, this affects future returning prisoners with offending that pre-dates the Act, as they would be released into the community on arrival into New Zealand without any specific agency support or oversight. To put it simply, I consider that this situation amounts to an absolutely unacceptable and urgent risk to public safety, and it’s contrary to how Parliament always intended the Act to work.

It is appropriate that the bill is passed through all three stages under urgency, as it only affirms what I consider to be Parliament’s original intention for the returning offenders regime. Further, the Justice Committee reviewed the Act as recently as 2019 and concluded that it was at that point operating as it was intended.

I want to acknowledge the bill’s impact on the New Zealand Bill of Rights Act 1990. Increasingly, New Zealand courts have taken the view that regimes such as the principal Act, which imposes restrictions that are usually only available through the criminal jurisdiction, are punitive. I consider these amendments are necessary to protect public safety and are limited in terms of their practical impact on the rights of returning offenders. This is because the bill only puts returning offenders in the same position that they would have been in if they had’ve offended in New Zealand, because parole is not generally regarded in New Zealand as a separate penalty but the administration of the original penalty, and because the vast majority of returning offenders would have been subject to parole regimes in the jurisdictions they offended in had they not been deported to New Zealand upon their release from prison.

I wish to draw the attention of members to the four legislative changes the bill proposes to address the issues raised in the High Court decision. First, the bill explicitly provides that the regime applies retrospectively. This bill clarifies that all operative provisions of the Act apply retrospectively, even where this is inconsistent with the New Zealand Bill of Rights Act. Express and clear direction as to the Act’s retrospective application would ensure that the Corrections department can continue to manage the 40 returning prisoners with pre-2015 convictions, as well as future offenders with pre-2015 offending histories.

Secondly, the bill provides that standard and special conditions can still be imposed even where this might be inconsistent with the New Zealand Bill of Rights Act. There is a risk following the High Court decision that the court might not consider; the Act allows it to impose special conditions where inconsistent with the New Zealand Bill of Rights Act. This is because section 6 of the New Zealand Bill of Rights Act requires legislation to be given an interpretation consistent with that bill where possible. Special conditions are essential to protect public safety and for the overall operation of the returning offenders regime. For these reasons, the bill clarifies that standard conditions can be imposed irrespective of any possible unjustified limitations of sections 25(g) and 26(2) of the New Zealand Bill of Rights Act. These are the provisions that might be engaged specifically because of the Act’s retrospective application. Conditions might continue to comply with all other rights protected by the New Zealand Bill of Rights Act.

Third, the bill confirms that natural justice requirements for determinations are satisfied through the existing review mechanism. The High Court held that natural justice generally requires that returning offenders are given adequate notice and a right to be heard before the Commissioner of Police makes a determination that a returning offender is a returning prisoner. This new requirement will delay the imposition of conditions, creating a public safety gap. I do not consider that notice and the right to be heard is required for a fair determination process. This is because the matters that the commissioner is required to be satisfied of before making the determination are wholly objective and factual in nature. This means that the commissioner must make a determination where the statutory criteria are met.

Additionally, the Act already provides for a process by which the affected person can seek a review of their determination. However, I do consider that there is merit in removing the current time limit on applications for a review of determination notice, which is currently set at 15 days. This responds to concerns raised by the court and will mean that returning offenders have more time to seek legal advice and prepare an application for review.

Fourth, this bill validates past conduct and determinations that were made on the basis of offending that occurred prior to 2015. The bill confirms that all returning offending orders made since the Act came into force are not invalidated merely because they were imposed for offending that pre-dated November 2015. The bill includes a provision that excludes G, the applicant in the High Court case, from the validation of the retrospective applications of the Act. The Government acknowledges that it would not be constitutionally appropriate to legislate over the ongoing litigation, and that, therefore, has been set aside.

To conclude, finally, I wish to thank members for accepting the need to pass this bill rapidly through all stages. It is critical to public safety that we address the issues raised by the High Court decision as soon as possible. I want to reiterate that this bill affirms what I consider to be Parliament’s original intention of the returning offenders regime. Consequently, the bill only aims to put returning offenders in the general same position as they would have been had they offended in New Zealand. I acknowledge the bill raises New Zealand Bill of Rights Act issues, and these have been addressed. Ultimately, I consider these amendments are necessary to protect public safety and are limited in terms of their practical impact on the rights of the returnees. Therefore, I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker. It’s my pleasure to speak on this urgent piece of legislation before us tonight, The Returning Offenders (Management and Information) Amendment Bill, which we in the National Party will be supporting. Now, I think the Minister of Justice has explained the background to this bill: obviously, we’re dealing with a piece of legislation that enables New Zealand authorities to impose probation-like orders on returning prisoners from Australia, primarily—although it can be from elsewhere—from the 501 prisons.

There was an obvious public safety issue that arose in around 2015 and 2016, when Australia—in a rather unfriendly manner, I think—started the process of sending prisoners back to New Zealand. Even though they may have only lived in New Zealand for a couple of years and been in Australia for most of their life, they’re still being sent back after their prison sentence if they’ve had a sentence of more than a year. So putting that to one side—the rather unfriendly nature of the manner in which it’s been carried out by the Australian Government for a while—we’ve been left in New Zealand with a real public safety issue in terms of having serious criminals returned to this country, and not wanting to just have to sit back and wait for them to re-offend before they are dealt with by the New Zealand justice system.

So the bill was passed back in 2015: the Returning Officers (Management and Information) Act. Then, we’ve seen a High Court judge come out with a judgment late last year, in effect severely curtailing that Act—saying that it shouldn’t apply to people who were convicted prior to the imposition of this Act in 2015. The judge has said a number of other things: that it doesn’t comply with the New Zealand Bill of Rights Act around double jeopardy and process issues around how it should be imposed.

Now, in an ordinary course of events—and I’ll be certainly asking the Minister about this in the committee stage—you would expect the approach to be taken would be to appeal the decision in the High Court to the Court of Appeal, which indeed has been done, and to wait for the Court of Appeal to bring down their judgment on it. The Government has decided that it’s not prepared to wait for that judgment and doesn’t want to risk the judgment going against the Crown, presumably, and the fear of the stay—which is to say that when the High Court make their judgment, it doesn’t take effect until we’ve heard from the Court of Appeal, and so we haven’t had to set aside the arrangements in place for the 40 or so former 501 prisoners from Australia who are affected by this piece of legislation. So I will be asking during the committee stage exactly why—or just to run through the logic of why they’re not prepared to wait. We’re still supportive of the legislation, because we agree with the fundamental principle.

The court case, I do have to say—I did read the court case and found some of the logic somewhat tortuous in it, to be frank. The legislation was passed under urgency in the House to deal with what was regarded by Parliament as an urgent issue, and the very purpose of doing it under urgency was to capture those deportees who had come from Australia, who had already been convicted. So if the interpretation that the judge has applied—which is to say that it shouldn’t apply to anybody convicted before the Act was passed. Well, that would mean that Parliament had sat under urgency to pass legislation that wouldn’t take effect for more than a year after it was passed. So nothing would have happened until somebody had been convicted, served a year, and then been released and then sent to New Zealand. So you would have the ludicrous situation of Parliament jumping up and down under urgency to stop prisoners arriving on the boat tomorrow—and the judge implying that we were doing that in order to wait more than a year for it to take effect. That was not what Parliament had in mind—nobody thought that—and it was rather, I think, frankly, a tortuous logic to apply to the legislation.

That is why I think it’s absolutely appropriate that Parliament should assert itself by this piece of legislation today, to say, “No, that’s not what Parliament had in mind”. It’s clear from the bill, and the manner in which it was passed under urgency, that this was always intended to apply to the criteria that’s outlined in the legislation: people that have been sentenced to a term of imprisonment for more than one year—or two or more terms that are cumulative, totalling more than a year—returning to New Zealand within six months of his or her release from custody, during the end of the sentence. So that’s the criteria. It didn’t say anything about whether the sentence had to be after the legislation was enacted.

Then, when you looked at one part of the legislation, as the court case actually referred to—in that amending the Parole Act it specifically stated that the section had retrospective application: “offender may be an eligible offender even if he or she [has] committed a relevant offence … or became subject to release conditions [for extensions] … [but] before this Part [or] any amendments … came into force.” So it is surprising that the judgment was as it was, and Parliament, it seemed to me, was reasonably clear about its intentions for this legislation, which was in order to improve public safety in New Zealand by setting up a system of parole which was akin to what serious prisoners in New Zealand would expect to see in order to keep the public safe and to aid with rehabilitation and the many other things that are part of it.

Secondly, the case argued that there were some breaches of the New Zealand Bill of Rights Act in terms of double jeopardy and constraints on the liberties of the prisoners. Of course, as has been stated many times in recent times in legislation in this House, there will be—and there will continue to be—many pieces of legislation passed in this House that contradict elements of the Human Rights Act. It’s not a black and white thing; sometimes bills do impinge upon the rights of New Zealanders. The only relevant question is whether that impingement on human rights is justified, and, as the Attorney-General’s report—rather good, I think—into this piece of legislation points out, yes, there have been places in which this regime can be argued to have gone against the requirements of the New Zealand Bill of Rights Act, but can that inconsistency be justified? The answer is absolutely, on the basis of protecting the public safety. And is there a rational connection between the limit and the objective? Is the impairment of right greater than the reasonably necessary to achieve the objective? No. Is the limit in due proportion to the importance of the objective? Yes. It is for Parliament to make that judgment and stand by it. The courts can point out an inconsistency, but they do not have the opportunity to overturn legislation passed by this House. We’re not the United States; we don’t have a separate branch of Government where the court can overturn legislation passed in this Government, and I don’t want to see that happen—that’s not how the constitution in New Zealand operates.

So I stand in support of this legislation, and I look forward to the discussions that we’ll be having during the course of the evening.

Tēnā koe, Madam Speaker. Let me start by saying that I agree with much of what the Hon Paul Goldsmith has brought to this debate, and his support for passing this legislation under urgency is appreciated. He is also right to say that it is necessary for Parliament to assert itself in this situation, and I thank the Minister of Justice, the Hon Kiritapu Allan, for her very clear explanation of what this bill does and why it’s important.

Where I disagree with Paul Goldsmith is in his comments around the tortuous nature of—so the logic in the decisions of the court. In the situation we find ourselves in, these matters are under active consideration by our superior courts. It’s really important for parliamentarians not to weigh in on some of the finer points of what the courts will be considering. To do so would be intemperate, but there has also been some reasonably torturous logic in Mr Goldsmith’s speech!

So let me clarify what is actually quite a simple bill. This bill confirms that the returning offenders Act continues to apply to offenders who are deported to New Zealand for offending that occurred before the Act came into force, in November 2015, which is what Parliament intended. It puts returning offenders in roughly the same position that they would have been in had they offended in New Zealand. That is the effect of this bill. It is simple. It’s a good one. Let’s pass it quickly.

Thank you very much, Madam Speaker. As the House will have heard, National and Labour are substantially in agreement on this matter, and our colleague Arena Williams is correct to describe the bill itself as straightforward. There are some incredibly gnarly issues of a constitutional nature, however, relating to fundamental rights under the New Zealand Bill of Rights Act (NZBORA) and also the relationship between Parliament and the courts.

I, like others on this side of the House, or at least the National part of the House, have agreed to support the Government’s intention to move quickly on this legislation, so I don’t intend to take longer than necessary to air what I think are some pretty important principles, whether that’s in this, the first reading, or beyond. And we do appreciate the need for quick lawmaking in this case, for the reasons that the Minister of Justice and others have explained.

I mean, there’s a certain irony, of course, in having to rush through a parliamentary process on the basis that the courts may very quickly decide something, because, of course, our court system is horrendously slow in almost every other respect. But, nevertheless, there is a risk of an unintended consequence, certainly from the parliamentary perspective, if not the judicial perspective, of the case of G v Commissioner of Police. So it’s important we act quickly.

The history, even of this bill, is quite complex, and I was interested to read not only the report of the current Attorney-General but also that, back in 2015, of the Hon Christopher Finlayson KC. I think it’s worth stepping through those, and I don’t think that they are substantially in disagreement, although the conclusions that are reached by the current Attorney-General are interesting in a deference that I think is shown towards the courts that leaves me not entirely comfortable.

So back in 2015, Christopher Finlayson decided that there was no double jeopardy imposed by that law that was being passed in response to the 501 issue, as we might call it, because the imposition of the regime was not punitive in nature. This is a slightly different point from that made by the Minister just now, and I think she makes a good point that the equivalent regime imposed here would have been imposed in Australia for that offence committed in Australia, or, conversely, an offence committed in New Zealand would have also attached to the administrative conditions in New Zealand. So, either way, it comes to the same thing. So far, so good.

I think I’m right in saying that Mr Finlayson’s report didn’t touch on the aspect of retrospectivity, because, for the same reason as the double jeopardy point, there isn’t actually a punitive element. There isn’t actually a punishment that looks backwards or is repeated, because, in fact, it’s not a punishment but the imposition of conditions that are either characterised as part of the original punishment, as the Minister would have it, or are of a nature of reintegrating and rehabilitating the offender himself or herself.

Just to complicate matters, the Attorney-General then did, nevertheless, conclude that the NZBORA protection against unreasonable search and seizure was offended, because that leaned on provisions of the Criminal Investigations (Bodily Samples) Amendment Bill, which he had determined was itself inconsistent with the NZBORA, at least to some extent.

So that’s the history, from an Attorney-General report perspective. In reading that of the Hon David Parker today—which is the first opportunity that I’ve had to look at it in this process, which has been rushed, albeit understandably—I see that Mr Parker agrees, I think I can summarise, with the conclusion that had been reached by Mr Finlayson, but says, nevertheless, because the High Court found that there was ambiguity in relation to the law, that it was necessary to defer to the courts and to say that the current law is ambiguous, in fact. This is really troubling, because I think that means that if we are to say that the Attorney-General report must defer to the authority of the court on matters of law, not merely stating what the law actually is, but also that that must imply that we in Parliament, and the Attorney-General himself, must therefore reach the same conclusion of consistency with the NZBORA. That seems to me to substitute the judgment of the courts for Parliament, and this is not a matter of law so much as lawmaking. Of course, it’s as legislators that we address each other in the House on behalf of New Zealand, and so I think the lines are getting considerably blurred.

The real irony in this to me is that, of course, in our determination that we should take seriously pronouncements on NZBORA matters from the courts, to the point that we are obliged to respond to them on every occasion of such a declaration, actually, we’re going to end up with this current bill saying at new section 3B, inserted by clause 4, that the Act’s provisions will override any inconsistent other law. So, actually, we’re going to say, at the end of all this, it’s not going to be justiciable to actually consider whether this amended Act is actually consistent with the New Zealand Bill of Rights Act or not. So we’ve gone backwards, and I think I’m not unhappy with that, just quietly. I think that’s a more sensible position for us to return, but it is highly unusual, as I think I heard my colleague and friend the Hon Michael Woodhouse reflect.

So it is highly unusual. It’s a very funny way that we have, you know, ended up having to make a law in this case. As we’ve said already on this side of the House, we don’t disagree with the Government’s approach, in policy terms. We think it’s appropriate to do so quickly—indeed, necessary—and for those reasons, we will support it not only in terms of the bill itself but also as to process, regrettable as that is. Dr Dean Knight often implores Parliament to allow prospective new laws to breathe. This has been a breathless process, but, nevertheless, we will act in good faith to make it as sensible a consideration of complex matters as we can manage. For that reason, I look forward to the rest of the debate at this and subsequent stages.

Thank you, Madam Speaker. It’s a pleasure to take a call on this bill. We do seem to be in agreement on the important principles involved here, but it was very enjoyable to be taken on that ride and on that journey by Mr Penk just now. So thank you for that.

We are all agreeing that we need to ensure that there is no unacceptable risk to public safety and making sure that the legislation works as Parliament originally intended—that is exactly what this bill does. It aims to put returning offenders in the same position as they would have been if they’d offended in New Zealand. For that reason, I commend it to the House. Thank you.

Thank you, Madam Speaker. I rise, not with any level of pleasure, to speak on this bill. It’s a disappointing bill. It’s a disappointing process. I bring with me the memory of having acted at the District Court in Auckland when first this law came into effect and when first we began to interact with the returnees, most of whom were made homeless, most of whom began to suffer more and more extreme mental health harm. And our communities, including the court community, began to—in somewhat of a panic and certainly without Government support—respond to those needs. So if anyone wants to talk about public safety being prioritised through policies like this or laws like this, I think that they may be lying to themselves, if not to the public.

It’s enormously regrettable that the first time this law comes back to our Parliament for debate, not only is it again being debated under urgency but it is to affirm one of its most abusive aspects, rather than to look at the policy more broadly and now with the benefit of hindsight—with all of the harm indicators and the risk alerts, which were raised with us the first time, now having come to fruition, being ignored. The Green Party first abstained our vote on this bill, when it first came to the House under the John Key Government, for it was done under urgency. We won’t be abstaining this time. We will be voting against it because we now can see the harm, in its full realisation, to not only those who are returned and sanctioned retrospectively but to the communities that are being left alone to handle that harm, to handle these people cut away from their families, from their culture, from their whānau. Cut away without support, dumped in New Zealand because of a deal made by a previous Prime Minister, because of this law, which ignores the principle of legality, the New Zealand Bill of Rights Act, and all of the evidence that tells us how to in fact keep communities safe, how to in fact keep people from a life of crime, how to in fact keep people from addiction and from mental health harm. It ignores all of that so that politicians can look tough on crime.

And that context is important: the context that a previous Prime Minister chose to act upon that deal with Australia—didn’t stand up for the rights of New Zealanders, didn’t stand up for our community safety issues that we are all now debating—and chose this law. We don’t have this kind of agreement with anybody else, because you know what? We don’t have jurisdiction to sanction those who have committed acts in another jurisdiction, in New Zealand. This was a political move. It was never about public safety. Otherwise, we’d have an agreement like this with every nation State, every place where someone else does something wrong under any process. Whoever decides to deport whoever else who’s served their sentences, who’s served their parole, we would be sanctioning them, too. This was just a political move. And remember: when people ended up on Christmas Island, that Prime Minister chose to lie to the House and say that they were rapists and murderers when they weren’t.

ASSISTANT SPEAKER (Hon Jacqui Dean): Yeah, yeah, yeah. The member—yes, I think I can anticipate what the member is going to say. The member will stand, withdraw, and apologise.

I withdraw and apologise. Thank you, Madam Speaker.

So here we are, with a High Court finding that it isn’t in fact clear enough, in that previous law, whether or not that House wanted to pass law that breached the principle of legality. We’ve come back to Parliament to debate this law—not the merits of it, not the impacts of it, but to make it clear that we do want to breach the principle of legality. That principle is based on the ways that laws are made fair. Laws are to be knowable and they are not to sanction anyone retrospectively. So if you’ve done a thing at a time when it was not illegal, when there wasn’t a sanction for the thing you did in the jurisdiction that you did it for, you are normally not allowed to be sanctioned, because that wouldn’t be fair. The law wouldn’t be knowable. It wouldn’t make sense. And we don’t do it in any other context. But we made a political deal with Australia and we decided we were going to do it in this context.

OK, so that happened, and so we have this law. We’ve had it harming our communities for some years now. And you talk to any of those District Courts that have to deal with the homeless, with the people we’ve disenfranchised, we’ve cut away from community—the people we’ve chosen not to support, knowing Australia has dumped them here. We’ve chosen not to keep communities safe, not to help people with their addiction issues, with their mental health issues, with their social welfare issues; we’ve just dealt with the criminality. And here we are, saying it will apply retrospectively, that bad lawmaking is OK in the political context of the returning offenders, no matter what the High Court says, no matter what the New Zealand Bill of Rights Act says.

In fact, we had a review of this law in 2019. The Green Party didn’t have a member on the Justice Committee then, but we read the submissions and we know that the New Zealand Law Society gave us some actual practical measures to ensure that the framework didn’t infringe unduly the rights of those to which it applied. Surely our focus as a lawmaking body should be to uphold people’s rights? At least, not to breach them unduly. And, yes, we have courts, and they don’t bind us. Yes, we have independent expert bodies like the Law Commission, the Law Society, the Human Rights Commission, and, yes, none of them bind us. But to say that this brief debate without a select committee stage is all we’re going to do, and ignoring the findings and recommendations of all of those expert bodies that also have a role in our democracy—we’re not the only dictatorial little house that sits within that democracy. To ignore all of those findings and to say we will rule according to what makes us look tough on crime, in an election year—let’s not ignore that politicised context here, now—that we will ignore the harm and the rights breaches, we will ignore the principle of legality, we will ignore the racism in the policy Australia is applying itself, we will ignore the fact that it is Māori and Pasifika—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! The member has for the second time prompted me to get to my feet. The member should be very careful when she uses words that are unparliamentary. The first time it was very clear—an allegation made which was unparliamentary, that was the first time. The second time—the member should know by now that any mention of racism should be treated with the utmost care and respect in this House. So I do ask the member to take note.

Thank you, Madam Speaker. I do want to notice that all the evidence shows that those being deported by Australia under this policy do happen to fit a certain racial descriptor, so—but that data is collected.

ASSISTANT SPEAKER (Hon Jacqui Dean): And I will warn the member, for the last time, that arguing against a Speaker’s ruling is a very unwise thing to do in this House. Golriz Ghahraman has one minute, 39 seconds.

Thank you, Madam Speaker. So we’re passing a law that will apply retrospectively to a community already harmed—a law that will not keep us safe, that has not kept us safe, that has increased crime in New Zealand to uphold a policy in Australia. What we could have done instead, of course, is to introduce a law that would in fact review this policy, that would send it to select committee, where we would hear from those communities, where we would hear from the experts and actually take them seriously. Look at what, in fact, prevents crime. Look at what Australia is doing on its face as not quite right, not quite right for New Zealand, and say, “What can we do, in receiving the returning offenders, to keep our community safe, to minimise that harm, and to uphold our principles, our New Zealand Bill of Rights Act, and the integrity of this House?” Unfortunately, this bill, in every way, undermines those principles. It does, although, make politicians look tough on crime.

Thank you, Madam Speaker. I stand to speak, on behalf of the ACT Party, to the Returning Offenders (Management and Information) Amendment Bill. I’d like to start, first off, by acknowledging the Minister of Justice in the House and hope that all is relatively well in Te Tai Rāwhiti and appreciate the work that has been done by that Minister, the Hon Kiritapu Allan, in her rohe. And I also appreciate the inclusion that the ACT Party had in being able to have a look at this bill and have some predeterminations before we came into the House to have it all heard under urgency.

I did know where I was going to start here, but I think I just might change it because there’s a few rebuttals I’d like to do to the previous speaker Golriz Ghahraman’s comments—those where she talked about mental health issues of those being returned and those people actually not being looked after. I agree with some aspects of the mental health that we need to look at, and I will address that in some later speeches, but these offenders are being returned and, basically, going on to parole conditions. That means they are being looked after, and if mental health is an issue or there are other needs, that is why they will have these conditions placed upon them—so that the Parole Board can help to reintegrate people into society in a better way. Also, I don’t think that this is about race, it’s not about colour, and it’s not about ethnicity. Those that are being returned to New Zealand from overseas, from Australia, as 501s, have committed crime, and it doesn’t really matter what colour the skin is. It’s the crime that counts.

ACT stands in support of this bill, which we’ve colloquially called “The 501s Retro Bill”, because the reality is that it affects more than those deported under Australia’s section 501 Migration Act 1958 regime. But this amendment is targeted because of, and at, one specific individual: the 501 who went to the High Court to have the conditions that were placed on him and the information that was gathered from him destroyed—and that’s his photos, his fingerprints, and his DNA. The appellant was successful in the High Court because there was no ability within the current Act to place conditions or to be able to get these details from him. The retrospectiveness of this Act being made in 2015 means that we do need to ensure that those that were convicted and served a sentence before 2015 are captured in this legislation.

And in this particular instance, the crime that was committed in Australia occurred in 2012. The man was convicted in 2014, and then, in 2019, he was released back to us. Conditions and information were garnered from him, and the High Court has decided that it shouldn’t have been. Further to this, if the Court of Appeal upholds the High Court’s decision, then a further 40 deportees will be entitled to have their information destroyed, too. Officials have indicated to us that 21 of those 40 are considered high-risk individuals and are currently subject to electronic monitoring. So it makes sense to ACT that we support this bill. If a person committed a crime before November 2015 and is getting deported to us now, some eight years on, for a conviction from a crime that occurred before 2015, then it stands that they have been in prison for over eight years. They must have done something pretty bad to be incarcerated for that long. It also makes sense to ACT to support this bill, because if this bill is not passed, it means any future deportee from an overseas prison, convicted before November 2015, released and deported to New Zealand, would not have to undergo a parole-like regime that they would have been expected to participate in if they were released from a New Zealand prison for that same offence.

To help this make more sense, and maybe for the benefit of the Green Party member, here’s a rundown on how the Act actually works. New Zealand Interpol receives notification, usually in advance, of the arrival of a person being deported to New Zealand. New Zealand has an information-sharing arrangement—not an agreement, not a deal, but an arrangement—with Australia. It’s proven to have improved not only the timing of the notifications but also the information that is being shared with New Zealand authorities. This includes names, aliases, dates of birth, summaries of facts, and records of convictions. Once Interpol has the information, they then share it with Police and Corrections. Police has a register of deported offenders, and they update that register. Before the deportee arrives, Police will assess whether they meet the “returning prisoner” definition, and that means they look at whether or not they were sentenced to one year or more for a crime committed in another country, whether they returned to New Zealand within six months of their release from custody overseas, and whether they were imprisoned for behaviour that would be an imprisonable offence here in New Zealand.

If the criteria I just spoke to is met, then the Police prepare a written notification for the offender as to what their obligations are under the supervision regime that will be imposed upon them on their return. Corrections may also apply for interim special conditions before a returning offender’s arrival. When the deportee arrives, Police are able to detain them, either at the airport or within six months of their arrival, and require them to provide identifying information like the fingerprints, the photographs, and maybe even the DNA. The deportee is also served with a notice stating that they are subject to a regime set for them and that they have to report to a probation officer. The term of their supervision will depend on the length of their sentence overseas. These conditions are what would be imposed on a released prisoner undertaking parole conditions if the deportee was sentenced and released from a New Zealand Corrections facility. Standard conditions like reporting to a probation officer, and the probation officer being able to direct where a person might live or work, or even who they can associate with, are part of those orders. Corrections will be able to apply for an extended supervision order or a public protection order while a deportee is subject to the standard conditions under the imposed supervision regime, too.

This shows to me a type of support for those prisoners. This is a standard practice of management of a prisoner upon release from prison in New Zealand. It has been undertaken since this Act came into effect, and the ACT Party supports what we view as its necessary continuance in order to not only reassure Kiwis that serious, violent criminals returning from overseas have mitigating actions placed upon them but that they will remain safe from harm as a result.

We do have some questions around the speed that this bill is going through in the House, and I will address those in my second reading speech. But the ACT Party opposed the House sitting under urgency to hear this bill. Removing the select committee process from the people is not going to be something that we support, but ensuring their imminent safety is. So, while we don’t support the process, we do support the bill. Thank you, Madam Speaker.

Kia ora, Madam Speaker. I just want to affirm urgency this evening for this piece of legislation, only because the bill itself only affirms Parliament’s original intention for this piece of legislation, which was around returning offenders having the same general position as they would have had if they’d offended in New Zealand. So I feel comfortable with the fact that we are in urgency to pass this piece of legislation to correct a piece of legislation from 2015. On that, I commend this to the House.

Thank you, Madam Speaker. It’s good to be able to talk to this as someone who was pretty intimately involved in the process that led to the initial bill being passed. Section 501 of the Migration Act in Australia was passed on 24 December 2014 without any consultation with the New Zealand Government or the New Zealand High Commission, and without any forewarning until late January, when it became newsworthy in Australia. I wouldn’t normally be that comfortable with a bill like this being passed under urgency or with any perceived retrospectivity about it, but it was the right thing to do in 2015, when we did it; it’s the right thing to do now—for reasons that I will elaborate on.

But I want to touch first on the extraordinary contribution by the Green MP Golriz Ghahraman. I say to Golriz Ghahraman this: if she wants to be angry with a Government and to rail against a Government that created the conditions for this to be necessary, I say fair enough, but pick the right Government, because there was no deal, and any suggestion that there was is quite mischievous, in my view. This was imposed on New Zealand, with the deportation of offenders whose DNA may, in many cases, have been Kiwi but who had lived so long in Australia that the conditions that led them to a life of lawlessness were entirely Australian, and that they were removing their responsibility—the responsibility that the conditions they imposed led to those crimes—is entirely them. That was exactly the message that I and my colleague Amy Adams, as Minister of Justice, said to Australian home affairs Minister, the Hon Peter Dutton, sometime in the middle of 2015 in the Cabinet offices in Sydney. I can tell the House, without going into details of the conversation, that that was a particularly robust exchange.

I think it is, as the last two Prime Ministers have said, a bit of a stain on the relationship between our two otherwise very close countries that we will not—cannot—control. Despite the hyperbole by Ms Ghahraman, this is not something that New Zealand can fix, but we can manage, and we should manage. And I think, in doing this, we are making New Zealand safer than if we don’t pass legislation like this. If both Attorneys-General, in their New Zealand Bill of Rights Act vets on the original bill and on this one, have said that there is not a punitive aspect or a double jeopardy aspect to this—in fact, it’s rehabilitative, and I think if anybody, including Ms Ghahraman, would consider this in another way: imagine what somebody on life parole for murder, having been deported, would pose in risk to New Zealanders if that person were not subject to some controls. And she rightly points out that, until the 2015 bill was passed, there wasn’t actually any protection in that regard. Perhaps there should have been, but it’s right to have it now, and it’s wrong to suggest that that’s retrospective.

If one looks at the purpose, the definition of “returning offender” that Nicole McKee went through—the definition of and criteria for determining that a person is a returning prisoner—it was always intended that the people who were convicted prior to that bill having Royal assent would be captured by the legislation. The Attorney-General, the Hon David Parker, I think, quite confidently says that he disagrees with the High Court’s decision, and indeed the Crown’s appeal to the Court of Appeal is a signal that the Crown disagrees with the courts. That’s appropriate, and I frankly think—I’m no lawyer, but I’ve watched this closely—that the Crown would prevail on appeal. We’ll never know, because the right thing to do, and the safe thing to do, is to pass what is a belts and braces piece of legislation to make it absolutely clear what is required to keep New Zealanders safe. That was what we did in 2015, and I think that’s what we’re tightening up today.

Five-minute call—Sarah Pallett.

Thank you, Madam Speaker. I rise to speak very briefly this evening on the Returning Offenders (Management and Information) Amendment Bill. I am not a permanent member of the Justice Committee and so, when I’m rising to speak on bills like this, I like to take a quick look at the bill and what it means for me. What I can see here is that the bill confirms that the returning offender rate continues to apply to offenders who are deported to New Zealand for offending that occurred before November 2015, which means that those returning offenders, such as the 501 deportees from Australia, will continue to be managed on parole-like conditions when they return to New Zealand after being released from prison. It makes sense to me, and I commend this bill to the House.

Thank you, Madam Speaker. I rise to take a short call on the Returning Offenders (Management and Information) Amendment Bill. We’ve heard a lot of people in this House tonight talk about this bill making sense, and it is reassuring when we have so many of us in this House in agreement about doing something that respects the original intention of the returning offenders regime, and attempts, across the House, to make everyone’s lives a little safer. And if the regime goes according to plan, actually, these returning offenders may be a little safer themselves. I commend this bill to the House.

I’m a little bit miffed. Not because of the last speaker, and the fact that there’s agreement, by and large, across the House. I’m not miffed that the Green Party thinks that this is an “agreement” between Australia and New Zealand—this was a decision by Australia we have to live with. No, what I’m miffed about is that for some in our courts, the original intention, written in black and white, debated, put in Hansard, was not clear enough for them. But because I am miffed, and I suspect many in the House are miffed—I don’t know why this word now is like 17 times in Hansard—we’re having to come in and write another bill.

I just hope for our courts, respecting comity, and for those judges, that this will be clear enough for them to understand what was exactly intentioned in 2015. Thank you, Madam Speaker.

I can understand why the member opposite—Simon O’Connor—is miffed. But, from a constitutional law perspective, I think, actually, this is a great case of the constitution working and separation of powers. There are overwhelming reasons why we need to legislate. One, as the Minister of Justice has rightly said, is around public safety; the second one is that the intention was always to have this law be retrospective; and, thirdly, actually, what’s been really heartening is to see that this bill takes into account commentary made by the High Court. So it is actually a fantastic example of democracy in action. It’s been a bit messy. But that’s what happens when you have good tension between the different powers that make up a democracy. So I commend it to the House.