Returning Offenders (Management and Information) Amendment Bill

Members, morning. The committee is resumed on the Returning Offenders (Management and Information) Amendment Bill. So when we suspended last night, we were considering the debate on all provisions of the bill as one question. Once again, the question is that Parts 1 and 2, the Schedule, and clauses 1 to 3 stand part.

Thank you, Madam Chair. Minister, I wonder, please, if we could have just a bit of clarification around new section 3A, in clause 4, which states that the provisions listed apply to a person “even if all or any of the following had occurred.”, and specifically, I’m looking at paragraphs (h) and (i), which reference a conviction being overturned or pardoned from an overseas offence. Can the Minister please explain why there is an opportunity to place conditions on people who have, effectively, been cleared by, and from, the countries where an alleged crime has taken place? If a person’s conviction was overturned or even pardoned, who are we to continue a punishment deemed no longer necessary in the jurisdiction where it was given?

Can I thank Nicole McKee for that question. I’ll respond to the individual point and then just make a couple of comments arising from another question last night that I discussed with the Minister of Justice afterwards. I’m advised that the legislation enables these supervisory orders that are imposed on someone to be reversed if their conviction in the country from which they were deported is subsequently overturned and that this provision is necessary to ensure that that ability can also be applied retrospectively in respect of convictions that were in place earlier than the date of the passage of this legislation.

In respect of some of the other questions that the member raised yesterday and were also raised by the members of the National Party, a suggestion was made that some of those finer details be discussed at the Justice Committee. The Minister of Justice—and I can say this because there’s been a determination of the Business Committee to allow people to vote whilst they’re dealing with events from Cyclone Gabrielle and the like, and that’s why the Minister of Justice isn’t in the chair today. But she would be open to the idea that the Justice Committee open a small inquiry into those issues but would not want the breadth of the inquiry to be looking at the overall need for the legislation, because there would be, no doubt, some grandstanding around that particular issue. And from the point of view of this Parliament and from the look of the votes, it is pretty well settled that we do need some form of intervention for people who’ve been deported and would otherwise be in parole in the country that they’ve come from, particularly Australia, where most of the deportees come from. But if members of the Justice Committee are interested in just looking at some of those finer issues, then we’re not proposing to amend them through this process but we’d be amenable to looking at those and just working them through.

Thank you, Madam Chair. Minister, could you please explain what happens to a person who is deported to New Zealand after serving a one-year sentence overseas for a crime that may not be a crime in New Zealand or one that does not usually require parole conditions in New Zealand?

Thank you, Madam Chair. The orders are not available for convictions that are not a crime in New Zealand.

Thank you, Madam Chair. My question—the first one—to the Minister is a broader one, and it is in relation to the bill in its entirety and the timing of it. In the normal course of events, for when the court case has come and an appeal is under way, we would expect to sort of wait for the Court of Appeal to hear the case and make a decision and respond, if required.

So I’d just like to get on the record from the Minister an explanation as to why the Government felt it necessary to bring the bill through at this moment, before the Court of Appeal had concluded the case. We support the bill, we support the Government in doing it, but I think it’s important to understand why that was important.

The second question is around the question of double jeopardy and the suggestion that by imposing these restrictions on returning prisoners, they’re facing two punishments for a crime—and this is a breach of their human rights, in the bill. The section 7 analysis that the Attorney-General undertook made the point that it may well be the case that it goes against those rights, but the question is whether or not that is justified, and the view of the Attorney-General was that it is justified, and the purpose of this bill is to assert that.

So I just want to get an understanding from the Minister if indeed that’s the view of the Government as a whole—that, yes, the legislation does impinge upon the rights of returning prisoners, but the need of public safety and the need to ensure proper rehabilitation is carried out justifies that, and that’s the view of this Parliament and that’s why this legislation is important.

Dealing to the first point about why now, the court hearing before the High Court was earlier last year. The decision of the High Court, which has been well traversed in this House, was delivered after the House had risen. We were very concerned that had we not got a stay of that decision, the duty of the Government would have been to apply the law as the court determined it to be, rather than as we thought it to be, and immediately we would have had to have removed the supervisory aspects in respect of people who are subject to the regime currently, in a way that caused concern to Government agencies and the Government.

We were fortunate that we were able to secure a stay. The stay itself, perhaps—well, depending on how you view that judgment—is effective. It’s not for me to criticise, or otherwise, a judgment, but we were pleased to get it, and there will no doubt be some analysis by legal academics of a stay being granted in that situation, because it is somewhat unusual.

The effect of waiting for the Court of Appeal decision is if the Court of Appeal opined in that way, there would be very little chance that we would get a stay, and immediately the Crown would have to, effectively, abandon what has been done between the passage of the 2015 legislation and now, and we thought that would be an undesirable risk. The Court of Appeal may overturn the High Court decision, or it may not. We thought we had to guard against that possibility by bringing this legislation to the House at the first opportunity, which, of course, we have done.

In respect of the double jeopardy issue, the Government’s position is, as the prior National Government believed when the legislation was already passed, that these provisions are not punitive; they are supervisory and rehabilitative. One of the reasons why I’m interested in some of the points that Nicole McKee made yesterday is that we actually have to make sure that it is applied in that fashion, because otherwise we do run the risk that it could be seen as punitive rather than rehabilitative. And just having a bit of a look at that part of this regime could be a good thing so as to make sure that it truly is supervisory and rehabilitative rather than punitive, because if it is punitive, that does create problems for me, and, I’m sure, for many members of this House.

But that said, our view is, because it is supervisory and not punitive, it doesn’t amount to a punishment, and therefore the retrospective element doesn’t become difficult, because it’s not a punishment being imposed after the date of the offence, unknown to the offender, and, equally, it doesn’t, for similar reasons, amount to double jeopardy. So that’s the reasoning of the Government.

Thank you, Madam Chair. Minister, new section 3A(1)(a) in clause 4 reads that—when I spoke earlier about section 3A(1)—“A provision of this Act applies to a person … if all or any of the following occurred”, and paragraph (a) is “the person’s conduct overseas that constitutes an imprisonable offence in New Zealand:”, and I’m thinking here of an example of, say, a visa issue where a person may have had their visa cancelled, perhaps after spending a year incarcerated. They may not have been convicted; they may have just been deported after a year, not having stood trial or even having been found guilty of an accusation, but they have been deported anyway. So if a person who has had their visa revoked and is, therefore, removed from a country for an unproven accusation turns up here and it’s determined that the accusation made against them is punishable by imprisonment here—and it means that, even when they’re not found guilty or even charged—am I right in thinking that their conduct alone could mean restrictions are placed upon them, and, if I am right, how is this an acceptable way to treat our own citizens? Would we not be stepping too far when we start to look at every returnee under this regime as a potential criminal?

Thank you for the question. The answer to that is found in section 7 of the primary Act. That section is not being amended by this bill, and it says that a returning offender is “a person who has been convicted in an overseas jurisdiction”. So, no, that would not be within this legislation.

Again, just for clarity, I want to hear the Minister explain: clause 6, inserting new section 18A, is around the notice and right to be heard. The practice prior to the court case was that a prisoner arrived, primarily from Australia, and was immediately designated a returning prisoner and served with notice. The court judgment said, “Well, that’s not good enough; there needs to be the right to be heard and a process.”, which this legislation today negates and asserts, “No, that’s not the case”, that the person can be given notice straight away or a determination made straight away.

So I just wanted to get an explanation from the Government as to why that is important in terms of practicality. I’m assuming the absence of it would mean that there would be weeks, potentially months, of that returning prisoner being in the public and being a public risk while that consideration went on. The view of the Government is that that is not an acceptable risk, but I’d like to get a little bit of background to that, just so that we’re clear about these additional powers that have been granted.

The view of the Government—successive Governments until the decision of the High Court—was that there was no natural justice right to a hearing before the imposition of these conditions. The High Court decided otherwise and, from the point of view of the Government, we think that there is an adequate way to provide protection to the person who is returning to New Zealand; that their position might be abused other than a hearing in advance of the order.

We’re not in control of the process in the overseas country before deportation. And although we do now get some notice in the case of Australia, we may not always get notice in the future and we might not get notice in respect of people returning from other countries. So, as a matter of practice, the view of the Government is that it would be impractical to always grant a right of hearing in advance.

We acknowledge that that means that, of course, the person hasn’t had a right to be heard and say, “This is wrong.” But we do view this through the framing of what would happen to someone in New Zealand in similar circumstances being released from our prison system—and they would generally be on parole for a period. There are protections built into the existing Act that require that if someone complains, then an application can be made by the person who’s subject to the order, pursuant to section 22(2) of the Act—I’m sure officials will advise me if I’ve got that section wrong.

In addition to that, new section 18A, inserted by clause 6, makes it clear that notwithstanding that there’s no right to a hearing in advance and in addition to the right to apply for a review of the order that’s made under section 22, section 18A(3) makes it clear that, as I’ve said, the section 22 review remains, and, in addition to judicial review of the commission, this determination remains available.

Thank you, Minister Parker, for bearing with me with my scenarios—this is my last one. It’s in regard to just trying to find provisions within the bill as to how we deal with those that have returned with mental health disorders. In this country, as you know, we can often find a person not guilty by reason of insanity, but they’ve been quite violent in some aspects. So I’m wondering what happens if a person is returned from overseas after having served a sentence not necessarily in a prison but in a mental health facility, and whether or not this legislation allows us to capture them as well and put that wraparound support—conditions, rehabilitation, and reintegration—into their lives as well.

Well, the first point to be made is, if I’m correct in my reading of the statute, there has to have been a conviction for it to apply. Where there is a conviction and someone has mental health difficulties, of course, the supervisory orders that can be made could provide a route for the Government to become aware of the needs of the person who has been deported to New Zealand and, through that route, make available the services that are available to people with mental illness in New Zealand. So it could help in that regard.

In respect of the issue as to whether there should be specific legislated reference to that, there was a submission to the Law Society when it met with the select committee in 2019. The select committee made no recommendation to that effect back to the House, so, presumably, they didn’t think that the matter needed to be taken further.

Madam Speaker, the committee has considered the Returning Offenders (Management and Information) Amendment Bill and reports it without amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The Returning Offenders (Management and Information) Amendment Bill is set down for third reading immediately.

Third Reading