Returning Offenders (Management and Information) Amendment Bill

on behalf of the Minister of Justice: I move, That the Returning Offenders (Management and Information) Amendment Bill be now read a third time.

The bill amends the Returning Offenders (Management and Information) Act 2015 to address issues raised in the recent High Court decision of G v The Commissioner of Police. The High Court recently found that the Act does not apply in respect of offending that occurred overseas before the Act came into force in November 2015. There are some in this House that thought that Parliament did do that, but the court has determined that the language in the Act is not clear enough for it to have acted retrospectively in that way since it’s come into force in 2015.

So what this bill does is confirm that the Act does apply since its inception, to people whose offences and convictions occurred earlier than that 2015 inception date of the underlying legislation. The bill confirms that the Act continues to apply to offenders who are deported to New Zealand or have been deported for offending that occurred before the Act came into force in November 2015. This means that returning offenders such as the section 501 deportees from Australia will continue to be managed on parole-like conditions when they return to New Zealand after being deported following release from prison in, normally, Australia. Consequently, the bill, in our view, achieves the aim of putting returning offenders in the same general position they would have been had they offended in New Zealand or, indeed, had they continued to be in Australia after release rather than been deported.

We think it is important to public safety that we address the issues raised in the High Court decision as soon as possible because it is possible that the appeal to the Court of Appeal may not—the Court of Appeal may agree with the High Court, or they may not. We would have had a gap had we awaited that decision and then it had gone against the Crown, hence the use of urgency to progress the bill through all stages.

I’d like to thank MPs from around the House for their support of this important bill. If there are some residual issues that members of the Opposition want to raise as to some of the details, and they wish to do that through the Justice Committee, as I said in the committee of the whole House stage, the Minister of Justice and I spoke about that issue, and we’d be subject to the work programme, I suppose, of the select committee. I think that select committee members might entertain consideration of those issues but I can say from the point of view of the Government that we wouldn’t want it to be a broad inquiry into the whole scheme of the Act which seems to have broad support in this Parliament. On that basis, I commend this amendment bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker. I stand to support this amendment bill, under urgency, which seeks to assert the current understanding of this legislation and how it applies in New Zealand in relation to returning prisoners primarily from Australia. As I said in my first reading speech, it arose during 2014-15 when the Australian Government adopted an unfriendly practice of sending back to New Zealand large numbers of prisoners whose connection to this country was not very strong in many cases, and the Government of the day was left with the significant public safety issue that developed. We had prisoners with serious offences coming back to this country and just being dropped at the airport, and we just waited for those offenders to offend again in this country if that’s what they were to do, before protecting the community from them.

The designation and the ability to put parole-like conditions on those returning prisoners was the purpose of the legislation, and, as the Hon Amy Adams indicated in the House when that legislation was passed, under urgency, it was to give a swift remedy to a problem that was urgent and topical—and that legislation was passed. Then we’ve had a High Court judgment which came to the conclusion that the Parliament, acting under urgency, was passing something that wouldn’t really take effect for more than a year if the court’s reading applied, which I can’t understand.

The National Party certainly supports this legislation to assert Parliament’s understanding of the legislation that it passed, and to make it clear that we do believe that the imposition of parole-like conditions is appropriate and is justified in terms of keeping our communities safe, and that it also gives the best shot at rehabilitation for those returning prisoners, who, as we all can understand, face many real difficulties in being returned to a country where they may not have any real connections. They may have left when they were infants. They may not have any family around. They may not have any support, and it is, in the absence of any such regime, a recipe for disaster.

It is important, I believe, to pass this legislation and ensure that the regime that has been in place for the last seven years continues, recognising that there may well be arguments about the impinging of the rights of those returning prisoners. But Parliament has made the judgment that that is justified by the need to maintain public safety. As the Attorney-General’s report, originally back in 2015 and again recently in relation to this bill, has pointed out: yes, human rights are impinged but, yes, that is justified by public safety. So with that—I don’t think we need to elongate things any further—we do agree with the Government on the need for this legislation and for its urgency.

Thank you, Madam Speaker. Can I just thank colleagues across the House for their really robust contributions last night and today. I think a number of members dwelt on the pivotal point, which is the distinction between an element of retrospective application versus retrospective punishment. And Mr Penk, I think yesterday, summarised the mood of the room, with the exception of the Greens, that we don’t consider this applies retrospective punishment, so double jeopardy isn’t engaged; the element of being retrospective in itself isn’t always contentious. And fun fact: the Interpretation Act in itself, while it prevents retrospective legislation, is in itself retrospective.

I also just want to acknowledge my colleague Nicole McKee, whose comments about the Justice Committee review led to the committee of the whole House discussing the Justice Committee’s role. And as the Chair of the Justice Committee, I just wanted to acknowledge the Minister yesterday and this morning and their openness to the committee opening a matter to make some brief comments. Kia ora. I commend this bill to the House.

Thank you, Madam Speaker. I think, like a number of people at this third reading, I don’t intend to speak for too long. Obviously, the National Party continues to support this. We thought the original piece of legislation in 2015 was a good, satisfactory, and well-explained piece of law. We have learnt—through the courts, of course—that some did not understand what we said and thought, and, as I mentioned last night, it’s my hope that these debates, discussions, discursions will make it abundantly clear.

I will make this comment—and it’s again an element that was picked up in the discussions last evening—we are seeing our democratic, if not constitutional, structures working. It’s good that the court has decided to make a decision and that Parliament responds. But, I think, if there is a further benefit, not only that we’re keeping New Zealanders safer, that we’re actually providing, to a degree—I know it’s parole but it’s also somewhat pastoral support to those coming back to this country. As Paul Goldsmith noted, this is something imposed upon us by our Australian friends and neighbours, and I know successive Governments will continue to raise that with Australia because while they might be on paper and in their passports New Zealand citizens, many, if not all, of those coming back don’t really have the connections here. So, in many ways, one of Parliament’s intentions back in 2015 and now in 2023 is to ensure not only the safety of the community but that we have some sort of oversight control support mechanisms to those who are here.

But fundamentally important, as I say, the courts have the right to critique, to challenge, to say that they’ve got a problem. But Parliament also has the ability, as it is today, to say that Parliament is sovereign and we will decide what the laws say, and I don’t think we can make it any more clear than that.

I quite agree with my colleague on the other side, Simon O’Connor. I have enjoyed the contributions to the debate this morning and last night—the fun facts from my colleague, the chair of the Justice Committee, Vanushi Walters, and also our Attorney-General reprising his role as Parliament’s favourite and most even-handed and thoughtful lawyer. You know, we have traversed the details of this bill in our contributions, but it’s really quite simple at this point: that we are affirming Parliament’s original intent, that we are putting returned offenders in the same position that they would have been in were their offending in New Zealand. That’s all there is to it. Hopefully, we can wrap up this debate soon.

Thank you, Madam Speaker. I rise, I think once again, as the lone voice for the New Zealand Bill of Rights Act and for the principle of legality in saying that this is a bit of a sad day for our Parliament. I know that my friends in the ACT Party also have a big problem—as do we in the Greens—with the process being adopted, but I’ll just address the substance of what we say is wrong with this bill first.

This is something that did come into effect under a previous Government. No matter the process—and we had some backwards and forwards last night about that—what it is is taking care of the New Zealand end of a terrible and unfair and unjust Australian policy. We now know how that plays out in New Zealand, and I do want to recall again, as someone who was in the Auckland District Court through the first years of the returns of the 501s, that we didn’t see what this bill and the Act that it amends tell us it would do, which was to keep us safe and keep the 501s off the streets, and to ensure that they were rehabilitated.

More than anything, we saw an incredibly marginalised, disconnected, harmed group of people who were, in effect—and I think they felt this—dumped here without wraparound support, without access to rehabilitation or proper and safe reintegration into New Zealand society. That didn’t just harm them; it harmed a community that they had joined as well, and we saw them come through the courts again and again in very tragic circumstances. We saw the same people come through the courts, deteriorating in their mental health and becoming more and more addicted in a harmful way to substances, and, of course, we know—as all the evidence shows us—that it’s social disconnection and it’s the lack of systems that support a person into our community that contributes to addiction, that contributes to mental health harm, and that, thereby, contributes to offending.

So this bill isn’t about any of that, and one thing that it’s also not about—because I think there’s some confusion—is continuing something like parole conditions that were imposed in Australia. This is a separate scheme. The people to whom it applies have most often completely finished their sentences and their parole conditions in Australia.

What it also is not is a risk assessment tool that considers the circumstances of a person, the circumstances of the offending, and the causes of that offending, and makes any kind of future risk assessment, which is what parole would be about, which is what we would be doing if we were talking about rehabilitation. So let’s not pretend that that’s what this is.

What it is is a scheme—and the Law Commission pointed it out in 2019, when they came to select committee when there was a review of this law—that is a bulk application, and we keep talking about how some of the people to whom this retrospective set of sanctions will apply as being high risk. Well, the number of people to whom this will apply retrospectively is 41, and only 21 of them have been assessed by whatever tool—not in a transparent process—as being high risk. So who are the others, and why, if we are so concerned about risk and rehabilitation, are we not imposing what the Law Society asked us to do, which is an individualised assessment and scheme and programme that would help to bring down that risk and that would support a non-offending lifestyle? That’s not what this is.

Not only is that not what it is; it is also a scheme that is being applied retrospectively. So it is a sanction-focused scheme, a restriction-based scheme, not rehabilitative, and it’s being applied retrospectively, which not only breaches the New Zealand Bill of Rights Act unduly but breaches the principle of legality, which is to say that laws must be knowable to be fair to the people whom they sanction.

This lawmaking body—we, today—is breaching that principle and breaching the New Zealand Bill of Rights Act, and we’re doing it under urgency, without the appropriate means for the public and for the expert bodies that we entrust to comment on law and on rights to come here, come to us, and make submissions. We are taking away our own ability to make this law better by hearing from the public, which is an essential part of lawmaking, and, in this case, I would say it is far more essential because we know we’re breaching rights and we’re doing it in amending an Act that was itself passed under urgency.

So it has never had that proper process, and to say that we’re going to bring it back after so many years where we have experienced that harm, where we know there are things wrong, because we’ve heard in a far more informal process from those expert bodies—we’re bringing it back to Parliament finally just to make the retroactive application clear and nothing else? It feels a bit shameful. It doesn’t quite feel right in the scheme of things where we, as representatives of the people, are meant to not only be cognisant of what the courts tell us but also of what the experience and the impact of the laws that we pass have been out there on the street.

We’re turning away from all of that, and, yes, we are sovereign. Yes, Parliament in our system is supreme, but surely those principles and the processes that we’ve put into place ourselves, as sovereign representatives, are there for a reason too. Breaching them sometimes works because things are truly urgent or they are very clearly to the benefit of the public, but when we know there is something so wrong as to be a breach of the New Zealand Bill of Rights Act and we know so clearly that there are aspects of this law that are causing more harm, even in a criminal justice context, I think it is absolutely a shame that we’re turning away from that today and we’re pretending that what we’re doing is clarifying a very technical point raised by a court, because we’re not.

We are actually perpetuating harm, we are lowering the standards of lawmaking in New Zealand, and we’re breaching the New Zealand Bill of Rights Act. So, on behalf of the Green Party of Aotearoa, I do not commend this bill to the House.

Thank you, Madam Speaker. On behalf of the ACT Party, I will be speaking to this third reading of the Returning Offenders (Management and Information) Amendment Bill—again, supporting the bill in its entirety.

In my first reading speech, I outlined how this bill works, how this bill is about supervisory rehabilitation and reintegration for those that come from overseas to New Zealand, having committed a crime there and serving what would be administrative, parole-type conditions. I see this as a sort of support mechanism for those that have come, especially when you look at many of those that have been returned from Australia who know nobody here in New Zealand, who have no one. Instead of just letting them get off a plane and try and fight for themselves, we actually put a system around them which helps to reintegrate them back into society. The reality of all of this, though, is that these people have committed crimes, and some of them are more serious than others. Because of that, some of the conditions imposed upon some of those people include having electronic monitoring put on them. That is for the safety of them, for the immediate community, and for our society as a whole.

In my second reading speech, I outlined the difficulties that had been mentioned not only by the New Zealand Law Society but also by the Justice Committee back in 2019, and the New Zealand Criminal Law Review also pointed out a number of areas that deserve some contemplation. I’m very pleased that the Minister of Justice and the Attorney-General, as well as the chair of the Justice Committee, have accepted that we should have a form of inquiry to address some of those issues that I have raised, and it would be a good idea to do that. I do appreciate the ability of the Government to actually say, “Yes, this is an issue and we should be looking at it at some stage in the future.” So I thank the Government for that.

Now, in my third reading speech, I want to just again acknowledge the support but also outline why ACT is supporting retrospective legislation, which is something that we don’t usually do. I know that there are countries around the world that send people back. We may not have that information-sharing arrangement with them and may not know when they come, but, effectively, 80 percent of those that are returned to New Zealand do come from Australia and are coming under section 501 of their Migration Act 1958 legislation. The reason why ACT is supporting this is because we see that law and order in New Zealand is not what it used to be. We now have a system where victims are often treated worse than the criminals, and it doesn’t help when the Government ignores or denies that it’s happening, resulting in the good people of this country finding themselves often victimised several times over.

When we speak to retrospectivity in legislation, ACT usually recoils from supporting such things. However, this instance is different, and the reasoning behind it is valid, in our opinion. There are currently 265 people being managed by Corrections that have returned from overseas; 41 of them have convictions pre - November 2015, when the parent legislation came in, and 21 of those are considered high risk and are on electronic management by Corrections. Should this bill not go through, then 21 serious offenders will be let loose without management, rehabilitation, conditions, or proper reintegration into New Zealand society, and that’s not a recipe that we want to mix into our communities.

I just want to point out a couple of things—another stat, for example: we’ve had, between 2017 and 2018, 85 child sex offenders returned to New Zealand. That’s 10 percent of those that were returned that year. Having the monitoring ability of these offenders and reintegrating them back into society is essential, in ACT’s view. We also know that out of the number of returnees, 5 percent of them are known gang members, and the police have actually highlighted how much of an impact these returnees have had on our gang situation. We would like to get that under control.

Another couple of examples was one of a man who was deported from Australia for a long list of crimes, including drug trafficking, stalking, intimidation, weapons offences, family violence, as well as two assaults—one against a police officer. These are the sorts of people that are being sent back here. Another one is a 23-year-old sportsman who repeatedly bit his then partner during fits of jealousy. He spat in her face and apparently accidentally cut her abdomen while he was cutting her hair, something that she did not want to happen—the cutting of the hair or the abdomen. So these are just a couple of examples of some of the people that have been sent back here to New Zealand, and some of them are often with no family or no connection to any person within this country.

Being able to retrospectively go back pre-2015 to ensure that everybody is captured we think is essential, because it’s not about punitive punishment; it’s about support and it’s about reintegration as well as rehabilitation. With that, we do support this bill.

Kia ora, Madam Speaker. I rise this morning to endorse the fact we’ve been in urgency to tweak and pass a piece of legislation. Obviously, it was here before the House in 2015. The original intent is what we are working on today and I feel comfortable that it is being done in urgency. Most people have said what needs to be said. We need to get on and move to other important legislation as well. So I commend this bill to the House.

Thank you, Madam Speaker. I’ve had the opportunity to contribute at a previous stage to the debate and I’ve listened carefully to the contributions of all other members, some of which have been very helpful indeed. If I may say, having the Attorney-General in the chair and then making a speech—with no disrespect to his colleague the Minister of Justice, who also made a valuable contribution yesterday—I think we’ve had an opportunity for as much airing of the relevant issues as has been possible in this process.

Briefly, on the chronology, the 2015 legislation was a response to the decision of the Australian Government. And just to be clear: it was their policy, not that of the New Zealand Government—at the time then, or now—in relation to the so-called 501 deportees. The bill was produced in response to that; a New Zealand Bill of Rights Act report was produced by Attorney-General Finlayson. He found it inconsistent with the New Zealand Bill of Rights Act only in relation to the search and seizure aspect, as opposed to double jeopardy or even engaging the possibility of retrospective application.

Fast forward to 2022 and the matter is currently before the courts from last year and still a decision, effectively, pending now—G v Commissioner of the Police. And it’s in response to the court’s finding so far—the High Court’s finding, that is—that there’s a lack of clarity in the original legislation that has required that we move with some haste in this House.

The benefit of the doubt, of course, must go to a litigant where there is an interpretation that can be consistent with the New Zealand Bill of Rights Act. But myself, I would have preferred—that’s not relevant; perhaps “expected” is more relevant to say—that a finding of a declaration of inconsistency might have been produced by the court rather than a finding that there was ambiguity in that matter. For the record, of course, it was the right to be heard as an aspect of natural justice in the New Zealand Bill of Rights Act, along with those questions of retrospectivity, that allowed the court to reach its conclusion so far.

I just want to touch briefly on that question of punitive versus rehabilitative versus reintegrative action that is the nature of the regime. I think reasonable minds can disagree on that point. I myself have certainly—whether or not a reasonable mind—grappled with that a little bit in the last 24, 48 hours. I think it is worth noting, however, that an argument in the alternative was articulated by the Minister of Justice yesterday.

So even if it were an additional punishment—or rather in the nature of a punishment—it would not be an additional punishment in the sense that the restrictions on the freedom of the person who’s returned to New Zealand would be equivalent to those that would have been imposed on them were they to have remained in Australia. And similarly, if they had committed such an offence in New Zealand, the same equivalent actions or restrictions would flow through to them at that point in any case. So our collective argument—“our” being that of all the House except the Green Party—need not rest on that point. I think that’s a fair point to emphasise again—even at this, the third and final reading.

The question of process, I think, is entirely fair that others have raised in this House—and I think, actually, all parties have acknowledged that this situation is less than ideal. It is a fair point to raise that lawmaking should not be so rushed as this in ideal circumstances. We are not in ideal circumstances here. I think the opportunity for the public, particularly very engaged members of the public—for example, the New Zealand Law Society—would have a lot positive and constructive to say about the law itself. Perhaps if the Justice Committee were to consider the matter—notwithstanding that the law would have been passed by that point—as chaired by the excellent Vanushi Walters, I’m sure that would be helpful to the extent that we’re able in the circumstances, again.

Some 40 persons will be affected by this law change, of whom roughly half are deemed to be high risk. As Nicole McKee has pointed out, the lack of rehabilitation and reintegration that would flow from that, were we not to pass this law, I think is a very serious consideration. It goes to the policy implications, which, of course, is part of the assessment of whether a justified limitation is possible under the New Zealand Bill of Rights Act.

So the stakes are high. Parliament has inevitably moved quickly. And of course we have to do so independently of the courts; we can’t say to the courts, “Please hold off while we have a fuller parliamentary process in the usual way.” This is the first sitting of Parliament in 2023 since the court action. So, for those reasons, we have acted in the way that we have—and look forward to further discussion on the matter, perhaps after even the law has passed, for those reasons.

The House stands adjourned and will resume at 2 p.m. today. Thank you, everybody.

The House adjourned at 9.56 a.m. (Thursday)