New Zealand Law Society - Amendments to Returning Offenders legislation passed under urgency despite inconsistency with human rights

Amendments to Returning Offenders legislation passed under urgency despite inconsistency with human rights

Parliament has urgently passed a new Bill today which means ‘501 deportees’ will face parole-like conditions even if they offended before November 2015, despite the Attorney General confirming aspects of the proposed amendments are inconsistent with fundamental human rights.

The Returning Offenders (Management and Information) Bill was passed in the House this morning under urgency and will subject returning offenders to parole-like conditions in New Zealand even if they have been deported here after a prison sentence in another jurisdiction. It will also allow the Police to collect information from returnees to establish their identity and support future investigations. Although this is the case under the current Act for returnees who committed offences after November 2015, the Bill is broader and applies retrospectively to those who committed offences prior to that date, even if this is inconsistent with other law. 

In December 2022, the High Court in G v Commissioner of Police held the Returning Offenders (Management and Information) Act 2015 does not apply to returning offenders who committed offences in other jurisdictions before 18 November 2015. Following that case, Parliament sought to pass legislation which would align with the Act’s original intent. Although the High Court case has since been appealed to the Court of the Appeal, the Attorney General was required to review the Bill in light of the High Court’s decision that the Act was ambiguous.

The Attorney General’s report concluded the proposed amendments are inconsistent with the prohibition against retrospective increases in penalty and the right to natural justice. The Attorney General considered the ability of the Commissioner of Police to make determinations that a returnee is a returning prisoner, is a penalty. As the Bill confirms a returnee would be subject to parole-like conditions that were not available in law at the time they committed the original offence, a determination would limit the absolute right of a returnee to benefit from a lesser penalty. The Attorney General considered this limitation is not justified.

Similarly, the Attorney General considered the Bill’s restriction on providing notice to returnees that a determination will be made, is inconsistent with a returnee’s right to natural justice and their ability to be heard on the decision to classify them as a ‘returning offender’.

However, even though the determination itself amounted to a second penalty for the same offending and inconsistent with the right to be free from double jeopardy, the Attorney General concluded any inconsistency with that right was justified in relation to the broader policy objectives of the Bill to ensure public safety and to promote reintegration and rehabilitation of returnees.

Parliament left the door open for the Justice Select Committee to consider specific issues relating to risks of double jeopardy but not a broader review on the scheme itself. The Law Society will continue to monitor this changing landscape.