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Returning Offenders (Management and Information)Amendment Bill (Inconsistent) (Sections 25(g), 27(1)) [2023] NZBORARp 34 (8 August 2023)
Last Updated: 30 September 2023
J.4
Report of the
ATTORNEY-GENERAL
under the New Zealand Bill of Rights Act 1990 on the Returning Offenders
(Management and Information) Amendment Bill
Presented to the House of Representatives pursuant to
Section 7 of the New Zealand Bill of Rights Act 1990 and Standing Order 269
of
the Standing Orders of the House of Representatives
- I
have considered whether the Returning Offenders (Management and Information)
Amendment Bill (the Bill) is consistent with the rights
and freedoms affirmed in
the New Zealand Bill of Rights Act 1990 (NZBORA).
- I
have concluded that following a recent decision of the High Court there is an
apparent inconsistency with the prohibition against
retrospective increases in
penalty (s 25(g) of the NZBORA) and the right to natural justice (s 27(1) of the
NZBORA).
- As
required by s 7 of the NZBORA and Standing Order 269, I draw this to the
attention of the House of Representatives.
The Bill
- This
Bill amends the Returning Offenders (Management and Information) Act 2015 (the
Act). It provides expressly that the Act is to
apply to offenders who have
already served a sentence for the offending that makes them eligible for a
determination under the Act,
notwithstanding any inconsistency with the New
Zealand Bill of Rights Act 1990 (NZBORA).
- The
Bill is being introduced in response to the High Court’s decision in G
v Commissioner of Police1 which held that s 17 of
the Act does not apply to returning offenders who committed offences in other
jurisdictions before 18 November
2015, when the Act came into force. The High
Court reached this view because it ruled the making of a determination under s
17 constitutes
a penalty for the purpose of s 25(g) of the NZBORA and a
punishment for the purpose of s 26(2) of the NZBORA and read the enactment
down
to prevent inconsistency with those guaranteed rights. It also held that the
Commissioner of Police had to provide notice and
the right to be heard to a
returning offender before deciding that they are a “returning
prisoner” and therefore subject
to the Act. This ruling was made because
the Court found that such a hearing was required by natural justice for the
purpose of s
27 of the NZBORA.
- The
effect of this Bill, if passed into law, will be to reverse the result of G v
Commissioner of Police in the High Court while preserving the effect of the
decision for G himself.
- This
means that returnees can be subject to parole-like conditions in New Zealand if
they have been deported here after a prison sentence
in another jurisdiction,
and Police will be able to collect information from them to establish their
identity and support future
investigations. While this is currently the position
for returning offenders who committed offences after November 2015, the Bill
will make clear that the scope of the Act extends to those who committed
offences prior to that date also.
- The
Bill also validates past conduct under that Act so that any determinations or
actions in respect of a returnee who committed an
offence in another
jurisdiction prior to 2015, which would otherwise be invalid following G v
Commissioner of Police, are deemed to be lawful.
1 [2022] NZHC 3514.
The effect of the High Court’s ruling
- When
the Returning Offenders (Management and Information) Bill was introduced in
2015, my predecessor issued a report under s 7 of
the NZBORA, but only because
the Bill proposed to apply part of the Criminal Investigations (Bodily Samples)
Act 1995 which had itself
been found to be inconsistent with s 21 of the NZBORA.
He found no inconsistency with s 25(g) or s 26(2) because he did not consider
that measures to support and supervise returning offenders were
punitive.2 Were the matter free from authority I would
endorse that view and would have made no report on this Amendment Bill under s
7.
- My
own view remains that these measures are rehabilitative rather than punitive and
go no further than replicating the release conditions
that would apply if these
offenders had been re-integrated into the communities they offended against and
not deported. However,
the High Court has found as a matter of law that this is
not how the Act is to be interpreted.
- The
Crown promptly appealed against the High Court’s decision. That appeal was
heard on 2 February 2023 and the decision of
the Court of Appeal is reserved. In
the meantime, the House may, and I do, disagree with the High Court’s
decision. But it
is of the greatest importance to the rule of law that unless
and until the judgment is reversed on appeal or the Act is amended,
we accept
that the High Court’s decision is authoritative that the making of a
determination under s 17 of the Act is a penalty
for the purpose of s 25(g) and
a punishment for the purpose of s 26(2). In deference to the authority of the
Court on matters of
law, I must accept that ruling in my assessment of the
consistency of this Amendment Bill with the NZBORA.
Retrospective increase in punishment
- The
Bill stipulates that the Act must be applied, and the Commissioner of Police
must make a determination that a person is a returning
prisoner, if the
statutory criteria in s 17 are met, even where this may be inconsistent with the
right to retrospective increases
in penalties protected by s 25(g) NZBORA. This
means the Commissioner does not have the discretion to exercise his power to
make
a determination consistently with the NZBORA, as the Bill directs him or
her to make a determination even where a rights infringement
may result.
- The
Bill authorises the Commissioner to make determinations that a returnee is a
returning prisoner, even where their offending in
an overseas jurisdiction
predated the Act coming into force. The returnee is thereby subject to a
determination and release conditions
that were not available in law as a
management tool at the time they committed an offence.
- Section
25(g) of the Bill of Rights Act provides:
Everyone who is charged with an offence has, in relation to the
determination of the charge, the following minimum rights:
- The
Hon. Christopher Finlayson: Report of the Attorney General under the New
Zealand Bill of Rights Act 1990 on the Returning Offenders (Management and
Information)
Bill (17 November 2015)
(g) the right, if convicted
of an offence in respect of which the penalty has been varied between the
commission of the offence and
sentencing, to the benefit of the lesser
penalty:
- This
provision also reflects a fundamental common law right that a defendant’s
conduct is to be judged by the law at the time
of the conduct and not in
retrospect.3
- This
raises two issues:
- 16.1 Is a
determination under the Act and the consequences that flow from it a
“penalty”;
- 16.2 Is the
imposition of a returning offender order part of the “sentence” for
the offending, such that the penalty has
increased between the commission of the
offence and sentencing?
- On
the first question, the immediate consequence of a determination that a person
is a returning prisoner is that they are subject
to standard release conditions
(for example, mandatory reporting to a probation officer, inability to leave New
Zealand without consent).
It is possible that a person could also be subject to
special release conditions (for example, electronic monitoring of whereabouts),
and requirements to supply of identifying particulars and bodily samples.
- Courts
have taken an expansive view of what can properly be regarded as a
penalty.4 In developing the law in this area, the
distinction between punitive aspects of a sentence and aspects of offender
management that
are aimed to protect the public, rehabilitate and reintegrate
the offender have not been determinative of whether the measure is
a
penalty.
- In
G v Commissioner of Police, the High Court held that a determination
under the Act was a penalty by reference to its purpose and punitive effect in
practice.5 Although this decision is subject to appeal
on this point the current legal position is that a determination made pursuant
to the
Act is a penalty.
- On
the second question, the High Court in G v Commissioner of Police held
that post- imprisonment orders like extended supervision orders and release
conditions on returning offenders must be regarded
as part of the
“sentence” for the original offending. The High Court said that on a
literal approach, s 25(g) does not
apply because the Act was not enacted between
conviction and sentencing in Australia, but after sentencing. However, the Court
held
that the determination must be regarded as part of the sentence because it
involved the imposition of a penalty after the person’s
return to New
Zealand and is analogous to the sentencing process.6
The judgment is subject to appeal on this point, but the current legal
position is that a determination under the Act is a “sentence”
for
the purpose of s 25(g).
3 R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695
(CA) at [73] and R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA) at [32].
- Belcher
v Chief Executive of the Department of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 and
Chisnall v Attorney-General [2021] NZCA 616; [2022] 2 NZLR 484 (regarding extended
supervision orders and public protection orders), D (SC 31/2019) v New
Zealand Police [2021] NZSC 2; [2021] 1 NZLR 213 (placement of a child sex offender
register).
5 G v Commissioner of Police
[2022] NZHC 3514, at [73].
6 At [58].
- This
means I must consider whether the penalty has increased between the commission
of the offence and the imposition of the “sentence”,
i.e. the
determination under the Act. For those who offended before 2015 it has. As at
the time the offence was committed, the standard
and special conditions and
other requirements imposed under the Act were not part of the range of penalties
that could be imposed
on the offender as a consequence of their conviction. They
would almost certainly have been subject to release conditions if released
in
the country of origin or deportation to New Zealand but did not become
subject to deportation and release conditions in New Zealand until the
Act was passed.
- Applying
the High Court judgment, in requiring the Commissioner of Police to make a
determination in those circumstances, the Bill
limits s 25(g) NZBORA.
Can the inconsistency with s 25(g) be justified?
- The
next question is whether this inconsistency can be justified under s 5 of the
NZBORA. The High Court in G v Commissioner of Police did not consider
whether the limitations of s 25(g) were justified because the case was not
argued on that basis.
- Long-standing
authority has identified s 25(g) as protecting a fundamental criminal justice
right. Indeed, it has been described as
one of the “absolute” rights
in NZBORA although the Court of Appeal decisions establishing this principle
(R v Poumako,7 R v
Pora8) were about more traditional penalties of
prison sentences. If the right is subject to justified limitation it could only
be in exceptional
circumstances. The primary means of preventing the right from
being applied too broadly is by narrowing the concept of penalty, but
the High
Court has determined that a determination under the Act is a penalty for this
purpose.
- Applying
the High Court’s interpretation of s 17 to this Amendment Bill, I must
therefore conclude that there is a limitation
of the right in s 25(g) that
cannot be justified by reference to the policy objectives of the Bill.
Double jeopardy
- Section
26(2) of the NZBORA provides:
No one who has been finally acquitted or convicted of, or pardoned
for, an offence shall be tried or punished for it again.
- For
the reasons set out above, a determination under the Act will be regarded as a
punishment. Offending in an overseas jurisdiction
forms the basis for the
determination under the Act and its consequences – an overseas conviction
and a sentence of imprisonment
are pre-conditions for a
determination.9 The determination therefore amounts to
a second penalty for the same offending. The High Court in G v Commissioner
of Police held that a determination was a second penalty for the purpose of
s 26(2) of the NZBORA.10
7 R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695
(CA), at [6].
8 R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA), at
[70].
9 Returning Offenders (Management and Information)
Act 2015, s 17.
10 G v Commissioner of Police [2022] NZHC
3514, at [111].
- The
Bill makes it clear that the Commissioner of Police must make a determination if
the statutory criteria in s 17 are met, even
where this may be inconsistent with
s 26(2) of the NZBORA. The Bill therefore limits s 26(2) of the NZBORA.
Can the limitation of s 26(2) be justified?
- The
next question is whether this limitation can be justified under s 5 of the
NZBORA. The High Court in G v Commissioner of Police did not consider
whether the limitations of s 26(2) were justified because the case was not
argued on that basis.
- Limits
on s 26(2) are capable of justification but its fundamental importance means
that any limitation will require a strong
justification.11
- The
s 5 inquiry is approached as follows:12
- 31.1 does the
provision serve an objective sufficiently important to justify some limitation
of the right or freedom?
- 31.2 if so,
then:
- 31.2.1 is the
limit rationally connected with the objective?
- 31.2.2 does the
limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- 31.2.3 is the
limit in due proportion to the importance of the objective?
Is the objective sufficiently
important?
- The
purpose of the Bill is to ensure the Act applies retrospectively to returning
prisoners who offended overseas before 2015, in
accordance with the original
policy intent of the Act: to ensure public safety and to provide returning
offenders with gradual and
supervised reintegration and rehabilitation on their
return to New Zealand.13 This will in turn reduce their
risk of reoffending in New Zealand. Some of those subject to determinations may
have recently been
released from prison overseas and have limited connection
with New Zealand, other than citizenship, and no support networks here.
- These
objectives are sufficiently important. As at January 2023, 265 returning
offenders were subject to management under the Act,
41 of whom have convictions
predating November 2015, so will be directly affected by the retrospective
application of the Bill. 21
of the offenders currently under management are
considered high risk due to likelihood of reoffending, or risk of harm to
others,
and approximately 45% of returning offenders have been convicted of an
offence in New Zealand.14 Given the
11 Chisnall v Attorney-General
[2021] NZCA 616; [2022] 2 NZLR 484, at [190].
12 R v Hansen [2007] 3 NZLR 1 (SC).
13 Returning Offenders (Management and Information)
Bill 98 – 1, Explanatory note.
14 Returning Offenders (Management and Information)
Amendment Bill, Explanatory note.
known risk of reoffending, a level of monitoring or oversight to ensure
public safety and reintegration is an important objective.
Is there a rational connection between the limit and the
objective?
- There
is no evidence demonstrating the effectiveness of the regime in reducing
reoffending and enhancing public safety or reintegrating
offenders into New
Zealand. In part this is because it does not appear we previously sought to
monitor the risk of reoffending for
persons who are deported to New Zealand. The
statistics since the Act came into force suggest a significant number of
returning prisoners
reoffend in New Zealand (45%) despite the ongoing management
and supervision under the Act. However, I am satisfied there is a rational
connection between the imposition standard and special conditions and
reintegration and a reduced risk of reoffending and as compared
to the
counterfactual situation where there would be no engagement between the state
and returning offenders.
Is the impairment on the right greater than reasonably necessary
to achieve the objective?
- In
the design of the original policy which became the Act, other less
rights-infringing measures were considered. In particular, the
provision of
enhanced support measures on a voluntary basis were considered, which would
clearly not constitute a “penalty”.
These measures would be akin to
what is provided under the refugee resettlement scheme to assist people to
integrate into New Zealand.15 While these measures
would achieve the same results in terms of re-integration, they were considered
to be far less effective in ensuring
public safety as they require no formal
supervision of offenders and are voluntary, meaning many offenders could opt out
entirely.
- The
standard and special conditions available are equivalent to those which would
apply if the returnee was released from a sentence
of imprisonment in New
Zealand, however a returnee may be subject to conditions for a longer period of
time. As the returnee is in
a similar position to what they would be in if they
had been subject to similar parole conditions in the overseas jurisdiction, or
if they had served a sentence in New Zealand, their management under the Act may
be seen as the least restrictive means to achieve
the public safety
imperative.
Is the limit in due proportion to the importance of the
objective?
- The
degree to which the Bill infringes the right protected by s 26(2) is in due
proportion to the importance of public safety and
reintegration of offenders. As
outlined above, there is a known risk of re-offending amongst returning
offenders and difficulties
in reintegrating into New Zealand, especially amongst
those who have recently been released from prison overseas and have limited
connection with New Zealand, other than citizenship, or support networks
here.
- The
Bill’s limitation of s 26(2) of the NZBORA is therefore demonstrably
justified under s 5.
- Regulatory Impact Statement Management of Offenders Returning to New Zealand, available at
https://www.treasury.govt.nz/sites/default/files/2015-10/ris-justice-mro-nov15.pdf
Natural justice
- The
High Court in G v Commissioner of Police held that the approach Police
had been taking, in serving a returning prisoner with a determination notice as
soon as they arrived
in New Zealand, breached s 27(1) of the NZBORA (the right
to natural justice) as it did not give the person the opportunity to be
heard
regarding the possibility of a determination being
made.16
- Section
27 of the NZBORA provides
Every person has the right to the observance of the principles of
natural justice by any tribunal or other public authority which
has the power to
make a determination in respect of that person’s rights, obligations, or
interests protected or recognised
by law.
- What
natural justice requires depends on the context,17 and
any justifications for limitations on s 27 are generally built into the
consideration of what natural justice requires in a particular
situation. In
this context the High Court has held that natural justice for a returning
prisoner determination requires a returnee
to be notified in advance about the
prospect of a determination and the opportunity to be heard on it. The Bill,
which explicitly
prohibits the Commissioner from providing notice or the right
to be heard to the returnee, is therefore inconsistent with s 27 of
the
NZBORA.
- As
the High Court has already determined this point, although it is subject to
appeal, it is not possible to argue that the inconsistency
with natural justice
is demonstrably justified under s 5. The arguments that might be marshalled to
justify preventing prior notice
and a hearing are the same arguments the High
Court rejected in determining that prior notice and a hearing were required.
Conclusion
- Giving
recognition to the authority of the High Court’s judgment, as I must, I
have concluded that the Bill appears to be inconsistent
with the prohibition
against retrospective increases in penalty, affirmed in s 25(g) of the NZBORA
and the right to natural justice,
affirmed in s 27(1) of the NZBORA, and I draw
those inconsistencies to the attention of the House.
Hon David Parker
Attorney-General
16 G v Commissioner of
Police [2022] NZHC 3514, at [139]-[140].
17 Daganyasi v Minister of Immigration [1980]
2 NZLR 130 (CA) at 141.
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