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Returning Offenders law may contravene Bill of Rights Act

08 February 2018

Legislation managing people returned to New Zealand after conviction overseas may contravene the prohibition against retroactive penalties and double jeopardy in the New Zealand Bill of Rights Act 1990, the New Zealand Law Society says.

The Law Society has made a submission to the Justice select committee which is reviewing the Returning Offenders (Management and Information) Act 2015. The submission urges public consultation and raises concerns about the appropriateness of the regime established by the Act.

"The legislation may apply retroactively. The Act applies to convictions in respect of offending which occurred before the Act was passed," the Law Society says.

"Moreover, an order under the Act may have an element of double jeopardy or additional punishment."

This would be a contravention of the prohibition against retroactive penalties and double jeopardy set out in section 26 of the New Zealand Bill of Rights Act.

The submission notes that the Act is predicated on the assumption that an overseas conviction is valid and properly obtained, and it provides no mechanism for a person to challenge that. This is out of step with New Zealand's approach to extradition, it says.

There are also significant concerns about how the Act is operating in practice, with special conditions appearing to be being imposed in all cases.

"Special conditions are more restrictive and appear to be imposed simply because the Department of Corrections cannot make a thorough determination of the returning offender's needs or risk level before they arrive in New Zealand, rather than on account of an individualised risk assessment of the offender. This is inconsistent with the Attorney-General's stated expectations when the Act was passed."

Public review needed

The Law Society says the committee's review of the Act should be open to the public. It says the committee should invite public submissions and make the Ministry of Justice's statutory review report of 4 July 2017 publicly available.

The Act was introduced and passed under urgency on 17 November 2015, coming into force the next day. It was not referred to select committee and therefore there was no select committee scrutiny or public input.

A provision in the Act did require a select committee to review its operation and to report on the review. While originally proposed to be two years after commencement, this was shortened to 18 months.

The Law Society wrote to the Justice and Electoral select committee after 18 months asking it to include public consultation as part of the review. It was advised in July 2017 that the committee had decided to hold the matter over to the current Parliament to allow for a new committee to consider opening the review to public submissions.

"The Law Society understands that to date, the committee has not called for public submissions as part of the review and has not made the ministry's report publicly available," it says.

The Law Society asks for this to happen given matters such as the absence of select committee consideration of the bill during its passage, the important constitutional matters and individual rights affected by the Act, (then) Justice Minister Amy Adams' assurance in February 2016 that there would be an opportunity for public input into the review, and the previous committee's decision to hold the review over to allow time to receive and hear public submissions.

Last updated on the 8th February 2018