Returning Offenders (Management and Information) Amendment Bill

Members, the House is in committee on the Returning Offenders (Management and Information) Amendment Bill.

I seek leave for all parts to be taken as one question.

Leave is sought for that purpose. Is there any objection? There appears to be none. Members, we come first to Part 1. The question is that—oh I see. There we go, thank you. The question is that Parts 1 and 2, the Schedule, and clauses 1 to 3 stand part.

Thank you very much, Madam Chair. I don’t have many questions—in fact, I think, three. If the Minister is comfortable with the approach, I’ll ask them all in one hit, so to speak, and then look forward to any answers she can give us on each of those.

The first, and probably most straightforward one, goes to process—just to acknowledge the discomfort of the Green Party and ACT Party, which I share to an extent, around the fact that we are having to legislate in urgency. I’m sure all of us would rather not be, but I do acknowledge and accept the case made by the Minister and the Government that it is necessary, nevertheless, to pass this legislation with some haste. I wonder if a post-enactment review of some kind might be contemplated, either by reference to a select committee—obviously, that’s not our usual process, but then, again, neither is urgency. And, obviously, the significance of the issues at stake, I think, would indicate that that’s a proposal that hopefully she would at least take seriously and consider. That’s the first question.

The second is: I wonder if she can speak to what she understands to be the effect of new section 3B—in clause 4—and specifically the operative provision is subsection (5). This is where the amendment bill is saying, “This section overrides any inconsistent other law.” This is placing the new law—or the newly amended old law, if you like—above any other law. So if there’s any inconsistency, nevertheless this shall prevail. It seems to me, taking that at face value and, I think, in accordance with the explanatory note of the bill, this is placing the legislation beyond the remit of the courts in respect of considering even the question of inconsistency with the New Zealand Bill of Rights Act. I may be wrong in that. I genuinely seek any guidance that the Minister, in conjunction with her no doubt excellent officials, can provide on that score.

My third and final question is, really, just to invite the Minister to agree or disagree with me in my angst, I suppose—if that’s not stating the case too strongly—in relation to the manner in which the courts and Parliament have interacted in this matter. We see, in the Attorney-General’s report, which, as I’ve already said, I think is excellent and records the key issues well, in most cases—but I’m nevertheless uncomfortable by the idea that the Attorney might regard as off-limits to him the question of consistency with the New Zealand Bill of Rights Act, as opposed to recording quite correctly that the current position of the law is that there was ambiguity in the original Act.

So, again, I’m not sure that I’ve articulated that well, but if the Minister can provide any comments about what she understands the relationship of the court to Parliament to be in terms of the question of inconsistency, particularly because, as the Attorney has noted in the section 7 report, the case wasn’t argued on the basis of limits at section 25(g) of New Zealand Bill of Rights Act being justified. That wasn’t actually argued. So I think it’s unfortunate if we were to regard the question of reasonable limits on the basis of policy objectives as having been settled. And, just for the sake of the record, section 25(g) is the part of the New Zealand Bill of Rights Act that talks about a person having the benefit of a lesser penalty if there are two possibilities, as between the time that the offence was committed and the sentencing.

And, actually, I suppose a related question—I’m being cheeky here; this is now a fourth, and I said there would be three—is whether indeed the returning offenders regime is in the nature of a penalty at all, because it seems to me that that question lies at the heart of the way that we would consider rights to have been breached or not, and, for example, differentiates the position of the Green Party and, I think, all other parties in this House. So I’m grateful for any comments that the Minister can provide, whether that’s this side of 10 o’clock or, indeed, we hear that tomorrow morning, as it seems inevitable we’ll return to finish this matter.

Oh, look, I thank the member for his always considered probing into the way in which we’re making law, and particularly when it rubs up against the New Zealand Bill of Rights Act and these significantly important constitutional questions. I’ve got four questions; let’s see where we go. So just, look, on the process, I think always when we are legislating under urgency, and particularly when there is this rub up between these constitutional questions, the interplay of comity, the interplay of the New Zealand Bill of Rights Act, there is a discomfort. That said, I think, you know, it’s all about making judgment calls, right?

So the tipping factor in terms of—process was jolted a little bit in a couple of ways. This case was heard early in 2022. The judgment was released in that third week of December, after the Parliament had lifted, and that required an urgent application for a stay on the impacts of that decision, because you had the Department of Corrections in a position where, effectively, any conditions that were imposed or any obligations that they had with any of the returnees would be inoperational and therefore unlawful. Ordinarily, we would’ve brought that issue directly back to the Parliament so that we could clarify pretty swiftly what Parliament’s intent was in 2015 when the regime was originally passed. We didn’t have that luxury because Parliament wasn’t sitting; this is that first available opportunity. But I think because we are only going so far as to restate what I think this Parliament considered the law already was, on those bigger issues where we would usually probe more, we’ve decided that we’re falling on the fact that public safety in this circumstance—and it is very much this circumstance—trumps. So that’s to those process issues.

On the questions around new section 3B(5), inserted by clause 4—so the wording, for the benefit of the record, is: “This section overrides any inconsistent other law.” Directly following that is new section 3B(6), and it specifies that for the purposes of subsection (5), for any other law, for the purposes of subsection (5)—and it specifically references three provisions, or three elements: section 6(1) and (2) of the Sentencing Act, sections 25(g) and 26(2) of the New Zealand Bill of Rights Act, and G v Commissioner of Police [2022]. That’s really specifically targeted towards the common law elements which arise out of each of these to specifically address where there may be any inconsistencies. So that’s for the purpose of clarity and, going to the honourable member Simon O’Connor’s point, for express—express—clarity of what the Parliament’s intent was.

I’m going to come to your question four about what a penalty is and how we understand a penalty and how the courts have been interpreting “penalty”. There’s been an issue—I was just going through some of the case law earlier. There’s a body of case law now which the range of additional restrictions imposed on an offender now constitutes a penalty for a broad range of purposes. In Davies v R in the Court of Appeal in 2012, it was held that the imposition of a minimum period of imprisonment by the sentencing court had been found to independently constitute a penalty. Outside of sentences of imprisonment, the imposition of an extended supervision order under the Parole Act 2002, that constituted a penalty. There is a series of decisions on that commencing—basically, anyway, it went right up until 2002. From the original imposition of a sentence until the case under appeal, the Supreme Court has held a court order placing a person on the child sex offender register under the Child Protection Act is a penalty. So the courts have read more and more into extending any condition to become a penalty, and I think that’s where we’re finding ourselves currently.

One of the things that you originally posed was whether or not there could be some type of review, I think you said “post enactment”, into the review; it might be the scheme more generally. I don’t have any opposition to that. I think what we needed in the emergency interim was just a real clarity of law so that the departments charged with custody or supervision or other obligations to those currently in New Zealand and those that were coming in—that they could continue with their ability to do so.

But with respect to a broader look into these areas—I mean, if there’s a case to be made, I really, genuinely am not opposed to it, because I think there probably are—if more challenges are presented to us, I think that that’s certainly something, whether you do it through a review or otherwise. Yeah—I think I’ve got to your four questions.

Members, with apologies to the member, but the committee is suspended and will resume at 9 a.m. in the morning. Mā te wā.

Sitting suspended from 9.57 p.m. to 9 a.m. (Thursday)