Recently the government rushed through legislation, mainly in response to the New Zealand citizens potentially facing deportation on Christmas Island. The reason for this law was to create ‘parole-like’ conditions for those who have served overseas prison sentences, and are then being deported to New Zealand.
Because this law went through really fast, crucial thorough examination of possible consequences never happened. This is particularly unfortunate because the Act breaches fundamental rights, leads to double punishment, and arbitrary enforcement of harsher and longer punishment than if the conduct had been committed in New Zealand.
As the Act is complex and confusing, this blog post explains the different parts of the legislation, and the real impact they will have on New Zealand citizens. This impact includes double punishment of some offences, no right to appeal by the returning offender and no consideration of how the same crime would have been punished differently in New Zealand.
Who is a ‘Returning Offender’?
The Commissioner of Police (not Immigration or the Department of Corrections) is responsible for determining whether somebody fits the label of ‘Returning Offender’, within 6 months of them returning to New Zealand.The Act outlines criteria for the police to meet:
- You must have been convicted of an offence overseas that would be imprisonable in New Zealand; 1 and
You must have been sentenced for more than 1 year (or, if convicted of more than one offence had cumulative sentences of more than 1 year); 2 and
You must have been removed or deported from that country because of that conviction;3 and
You must be returning to New Zealand within 6 months of your release from custody (importantly, ‘custody’ also refers to being held in an immigration facility, like Christmas Island, but only if you were not released in the community for more than 6 months between your imprisonment and custody in the facility); 4 OR
You must be returning to New Zealand immediately after being subject to parole-like conditions in that country, even if you have been released for 6 months or more from custody, if the Court thinks it would be in the interest of preventing you from reoffending and aid rehabilitation. 5
To give you an example, let say Mike, who’s lived in Australia since he was a kid, is convicted of theft and sentenced to 1 year of prison. He is released after 6 months, and then completes another 6 months of probation. He’s then deported to New Zealand. Under this law, he would be a Returning Offender.
Ok, but what does it actually mean to be labelled as a Returning Offender?
Aside from the stigma attached to such a label, it essentially means that police and the Courts have the power to impose certain requirements and conditions.
Even before receiving this label, it grants police the power to obtain DNA from anyone who might fit the label. They can use ‘reasonable force’ to do this and if you don’t comply it’s punishable by imprisonment of up to 6 months. 6
After being labelled as a Returning Offender, you become subject to similar ‘release conditions’ to those who are being released from prison in New Zealand.
How long these conditions stick depends on how long your sentence was in the country you were convicted. 7If the sentence was:
More than 1 year, but no longer than 2 years: 6 months of release conditions will be imposed;
More than 2 years, but no longer than 5 years: 1 year of release conditions will be imposed;
More than 5 years, but not life: 2 years of release conditions will be imposed;
Life, or an indeterminate sentence (like preventive detention) then 5 years of release conditions will be imposed.
And that’s not all. The Court can impose what are called ‘special conditions’ on a Returning Offender. These are things like determining where that person lives, who they can associate with and where they can go (and not go) at what times. 8
What if the Police get it wrong?
This is one major issue with the law.
The decision can be reviewed under the Act if the person doesn’t meet the criteria to be labelled as a Returning Offender, or if there’s an administrative mistake like the determination is made too late or there’s incorrect details on the form. 9
BUT only the probation officer has the power to apply to the Court to review or discharge the standard release conditions, NOT the Returning Offender themselves.
So, what does this all mean?
In a nutshell, this means that Returning Offenders can be subject to parole conditions that they might not have been if they had committed the offence in New Zealand.
How does that mean that Returning Offenders can have harsher parole conditions?
Because what is considered when labelling someone as a Returning Offender is only whether the crime would be imprisonable in New Zealand, and how long they were sentenced for in that country. So, even when they have been imprisoned for a full sentence, and then been monitored for another 6 months, they would still be subject to release conditions when they returned to New Zealand. This is harsh because they arepunished twice for committing one crime.
Absolutely no consideration is given to the type of release conditions that someone may have received during sentencing in the country where the crime was committed. For example, if you were originally convicted for 12 months imprisonment, and two months of parole conditions in Australia, you would automatically receive six months of release conditions in New Zealand, even though this sentence is harsher than the one originally imposed.
But surely this law will only apply to those people that have committed really serious crimes, like rape and murder, right?
First of all, a fundamental part of our justice system (protected by our Bill of Rights Act) is that no matter how ‘bad’ a crime is, you should only be punished once for it. 10 This law essentially creates a new category of punishment because the offender committed the crime overseas. This is completely unfair.
This Act applies to every person who has committed an offence overseas and was sentenced to one or more years in prison, that might have been sentenced to prison in New Zealand. What doesn’t matter is the amount of time actually served, whether the sentence is ‘just’, or how the same crime would be punished if it had happened in New Zealand.
To give an example, let’s say you’re on holiday in Bali and you end up being convicted for possession of cannabis (regardless of whether you actually committed the crime). The minimum sentence for possession is four years in prison. Finally, you’re able to return to New Zealand, but because of your conviction, you’re labelled as a ‘Returning Offender’, and are subject to a further two years of monitoring. That means you’ve endured a minimum 6 years of punishment, whereas if the same thing had happened in New Zealand, it would only be a maximum of six months punishment – including parole.
While it’s important to make sure that our community is safe, the speed with which this legislation passed meant that there has been no opportunity to examine whether community safety was at risk in the first place, or whether the community will be any safer now. We think that’s wrong.
By Emily Tombs
Returning Offenders (Information and Management) Act 2015, s 7(a).
Sections 17(1)(c) and 17(2).
Sections 8, 9, 10, 11, 12, 13.
Bill of Rights Act 1990, s 26(2).