Returning Offenders (Management and Information) Amendment Bill

Thank you, Madam Speaker. I will take a brief call. It is an unusual situation that we find ourselves in. Can I firstly endorse some of the comments from other members. I thought Nicole McKee’s description of how the legislation works was very fulsome and accurate—thank you for that. I also agree with the analysis of Michael Woodhouse as to how this came about.

It wasn’t a deal, as was suggested by the Green Party. It was a decision of the sovereign Australian Government that we might disagree with, but, none the less, they had the power to make and did make, and it meant that there were consequences that the New Zealand Parliament had to address in order to deal with the consequences of people being deported immediately upon release from prison in Australia and not being able to be supervised upon their release, as they would have had they been released to Australia or had they been released in New Zealand following a similar sentence in the New Zealand system.

So the New Zealand Parliament and the then Attorney-General thought it was appropriate to pass that legislation, viewing it as rehabilitative rather than punitive, and, in the view of the Parliament, thought that we were applying that not just to people who were sentenced after the date of that legislation in New Zealand but people who had previously been sentenced earlier than that date.

We find ourselves in the unusual position that because of our respect for the courts, even though we have that decision under appeal—and it may succeed or it may not succeed, but in relation to the New Zealand Bill of Rights Act vet that now has to be done, that has to record that the view of the courts is that this is inconsistent with the New Zealand Bill of Rights Act. Even though we don’t agree with all aspects of that decision, we do have to respect it, and therefore that creates the need for this remedial legislation, and the New Zealand Bill of Rights Act vet attempts to make those points.

Can I also thank Chris Penk for pointing out to Parliament that even if we won the appeal, G still gets the benefit of the decision personally. None the less, there is a need to, in the view of this Parliament—and now I’m speaking as a member of Parliament rather than the producer of the New Zealand Bill of Rights Act vet—remedy the situation by enabling supervision of returning deportees following serious sentences in Australia, including those who were sentenced prior to the passage of the remedial New Zealand legislation. We believe that it’s important that supervision is possible, in part because we can sometimes help those offenders deal with the problems that underlie their offending. There could be some strength to what the Green Party says, that we should be doing more to help these returning offenders to integrate into New Zealand without reoffending, and that could be a valid criticism, that we’re not doing enough. But that doesn’t mean that we shouldn’t have the power to intervene through supervision-like or parole-like conditions being imposed on returning deportees from Australia in these circumstances.

Thank you, Madam Speaker. Unless I’m interrupted by my co-leader to correct a vote—ha, ha!—it is again with dismay that I rise to speak to this bill.

A lot has been said about the rehabilitative aspects of parole. And yes, sometimes parole is rehabilitative. A lot of times, the supervision aspects of parole—and I think most people and all courts agree, certainly—have a punitive aspect to them: reporting conditions, curfews, various other types of things are there as part of the punitive sentences; they are there for reasons that are not necessarily proven to be rehabilitative.

But I think if we were to be honest, and I speak this to the courts as much as to us here—when rehabilitation works best is when we do a personalised, individualised risk assessment of offenders. That’s exactly what we do in a sentencing process, that’s where the sentence is meant to go to—in a lot of ways, as much as it is supposed to go to deterrence and to community safety, it’s meant to also take into account the individual circumstances of the offender and the offending, the causes of offending. That’s what parole is meant to do.

One of the submissions and recommendations of the Law Commission when this Act went through its not-quite-formal—but at least it did go through it—review process in 2019, was that the Law Commission criticised and recommended that we change the one-size-fits-all bulk approach to the way that we treat returning offenders in this law, so that we do change that approach in law to require an individualised risk assessment.

The reason I bring that up is that’s one of the recommendations that would go towards what we are all saying is the spirit of this law, which is to keep communities safe, to bring down crime rates, and to ensure that reoffending by returning offenders isn’t happening—or at least to reduce that risk. That’s not why we’re here today though; all we’re doing is fixing the retrospective application of the law. So that’s why urgency is particularly offensive with this. We’ve had a review process, we have recommendations in that process, and yet we’re here, under urgency, debating this tiny little change that we know breaches rights, that we know breaches rights unduly, and being all “miffed” about why we have to do that.

What would have been better is if we actually acknowledge that we shouldn’t be comfortable with this urgency process because this law was always passed under urgency. It never had a proper select committee process. We’ve never properly responded to the review. We’ve not adopted any of the expert recommendations or what we heard from the public. All we’re doing is fixing this one thing that’s come out of the High Court decision to apply the law retrospectively in breach of the New Zealand Bill of Rights Act and the principle of legality, and we’re turning our back on what the evidence is, of what actually rehabilitates people, what actually keeps our communities safe.

We’re seeing the desperation and the harm in our courts every day, on our streets every day, because the 501 returnees are largely in those communities now, suffering from more and more grave mental health, addiction risks, addiction harm, reoffending—because what else would we do? And we’re ignoring all of those indicators. We’re ignoring that principles like that of fairness, in terms of the application of the criminal law, are there also not only because fairness is important, transparency’s important in our law but because dignity is important.

If we say it’s Australia that has harmed, well, why are we doubling down on that harm? Retrospective sanction is never good, because we wouldn’t say to a New Zealander in New Zealand that we are going to change the law to apply certain conditions to you for doing something that, when you did the thing, was not in fact criminalised or was not in fact subject to sanction. We wouldn’t do that, and we don’t do it to anyone coming back from any other nation, in fact. That doesn’t exist, by the way. We don’t do it. We only do it to these particular returnees. It’s a scheme that has never quite made sense, and we’re just doubling down. That harm is heart-breaking, but the urgency in this process makes it doubly—well, it makes for bad lawmaking in a bad process, and it means that we’re not actually taking account of the evidence. So it’s not only harmful; it’s a little bit dangerous, it’s a little bit backward, and it’s kind of disappointing that we’ve come here with all of that evidence and we’re criticising the High Court instead of looking at ourselves and looking at the evidence of what keeps communities safe.

It’s not that we as the Green Party are uncomfortable with urgency only, but urgency in changing a law that we know is breaching the New Zealand Bill of Rights Act, was originally passed in urgency, and is particularly perverse, especially in the criminal justice context, especially in the context of the most pervasive, the most punitive, of our justice system sectors. I don’t think we would do it in any other sector. I don’t think we would do it to people who were less marginalised than the 501 returnees. And I do think we should look at the stats of who Australia returns, because it’s not everyone who is convicted of the same type of offending that has returned. So the policy is doubling down on the same prejudice that our justice system suffers from, and this is bad lawmaking, so we don’t commend it to the House.

Thank you, Madam Speaker. I stand to speak on behalf of the ACT Party to the Returning Offenders (Management and Information) Amendment Bill in its second reading. A second reading usually occurs after a select committee process has been undertaken, but we’ve not had this process because this bill is being heard through all of its stages under urgency. So I stand here, delivering the speech with what should have been informed and developed information learned from a considered select committee, their officials, and, of course, submitters. While we understand the urgency and the reasoning, we can never support doing away with good lawmaking and democratic processes, such as hearing from the people. They, the people, are already telling us that they’re not being listened to, and when two laws go through in one afternoon, you cannot blame them. At least ACT is listening to them. We hear you.

When researching information on this bill, I found what I thought was interesting commentary about this legislation. If we had had a select committee process, I expect some of the things I’m about to mention would have been brought to the attention of the presiding select committee. And I think these things are still relevant. The original returning offenders Act was also brought to the House under urgency by the National Government in 2015. The then Minister of Justice the Hon Amy Adams said she first became aware of a potential issue of 501s being returned from Australia in February of 2015. We were receiving around five deportees a month, but it had risen to 25 deportees a month. In October 2015, the regulatory impact statement prepared for the original Act stated that 25 returnees per month could actually increase to as many as 300-plus per month. The regulatory impact statement also stated that of the 60 to 80 deportations, which is what they were currently receiving each year, around 80 percent of them were from Australia.

The regulatory impact statement also went on to note that 70 percent of offenders who had returned to New Zealand since 2013 had been convicted of violence or burglary offences on our soil and that re-conviction rates between the years 2000 and 2002 were sitting at 48 percent. That’s 48 percent committing crimes once they came back to New Zealand and within a two-year period. When you hear stats like that, it is easy to see why the majority of this House supported the original legislation going through under urgency.

And because it went through under urgency, there were considerations made, such as that in Part 2, subpart 4, at clause 37, where a review was legislated to take place 18 months after the commencement of the Act. The justice select committee did do that review, which looked at the operation of the Act. The justice select committee of the day considered papers from submitters, especially that which received from the New Zealand Law Society. The Law Society made four proposals for amendment, and the justice select committee had suggested one change. The Law Society suggested that a small percentage of returning prisoners were made subject to more restrictive special conditions with—and it was at that time—2.6 percent being subject to curfew conditions. Another 2.6 percent had conditions on them relating to electronic device use for child pornography, and only 5.2 percent had been subject to driving-related conditions. Their submissions suggested that, “Instead of this wide use of special conditions, applications should only be made based on individualised assessments of the risk posed by each offender.”, and, “When the Act was drafted, legislators expected special conditions to be used only in circumstances where a person poses increased risks.” It would appear that this was not happening, although the justice select committee of the day found no issue with that because they were assured by Corrections that they will assess the situation of special conditions as the Act is implemented over its following years.

The select committee heard from the Law Society that conditions should be removed if a conviction is quashed or pardoned, but were assured that there were no convictions to date that had been quashed or pardoned, and say in their select committee report: “We were told that the police would revoke a determination if this situation arose.”

Yet new section 3A(1), inserted by clause 4 of this amendment bill, states that these provisions apply even if, as in paragraph (h), “the person’s conviction for oversight for the overseas jurisdiction offence being overturned.”

Nor does the bill being heard under urgency today reflect any of the recommendations made by the New Zealand Law Society or the justice select committee. I read the New Zealand Criminal Law Review dated in December 2018 on this Act, and a number of other issues were raised under the heading of “The process of challenge”. The review states: “The provisions give the police a power to obtain information rather than mandating it, this conveys a public law discretion that might be open to challenge via judicial review in relation to the outcome of that determination made pursuant to the statute or the process following and considering its application. The fact that the language does not direct police to obtain the relevant information suggests that there are circumstances in which it might not be proper to obtain the information. In this context, the obvious starting point is that a general discretion should have the limit imposed on it that the discretion should be used for the purpose for which it has been conferred.” That’s a good point.

Another consideration in the review is around the word “removal” and whether these people who are deported because they have had their visas cancelled following a conviction of any offence are captured in this Act. They have left them “with no option but to leave” the country they are in if their visa has been revoked and they are removed. The review goes on to say that the Act “does not require that there has been a custodial sentence” for those people, and yet the conditions or need for them should be questioned. And that’s another good point.

Finally, the review questioned what we do with mental disorders, and they gave an example: “If the person has a mental disorder and would not have been convicted in New Zealand but the overseas system has a more stringent insanity or unfitness to stand trial procedure, is such a person covered by the definition of a returning offender?”

So there are a number of layers to the provisions being introduced in this bill under new sections 3A and 3B. And while it’s intended to capture those already in the system that were convicted pre November 2015 as well as those that are still to come here, there are layers that do not address the recommendations or questions made to this House post the review of the Act. That is disappointing because regardless of the urgency, if we’re able to make robust law, the first thing we should do is hear from the people. And when we do, we should take note because that is our job here as representatives.

However, the immediate problem here is another one that runs us into urgency, because a situation is before us right now that can have frightening consequences for our society should we lose the ability to manage, rehabilitate, and reintegrate deportees into our society. For that reason, we are continuing to support this bill.

However, I do note that an aspect of this bill is the repeal of the section of the Act that ordered the review, and I guess it was because it’s already been done. But ACT suggests that with this new bill and additional clauses being added, the past reviews and recommendations for change from New Zealand Criminal Law Review, the New Zealand Law Society, and the justice committee that a further review be maintained so that we can clearly ascertain whether we’ve gone too far in controlling the lives of all that are deported back to New Zealand, or whether we have captured those that are determined to be a risk to our communities. Thank you, Madam Speaker.

That bill is set down for committee stage immediately. I declare the House in committee for consideration of the Returning Offenders (Management and Information) Amendment Bill.

In Committee

Parts 1 and 2, the Schedule, and clauses 1 to 3