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Returning Offenders law may contravene Bill of Rights Act

14 June 2018

Legislation managing people returning 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 presented a submission to the Justice select committee which is reviewing the Returning Offenders (Management and Information) Act 2015. The Law Society said it was concerned about the appropriateness of the regime, which the public did not have an opportunity to submit on before it came into law.

“In 2015 the Act was introduced and passed under urgency in only two days, and there was no opportunity at the time for public consultation. The Act affects people’s rights under the Bill of Rights Act and the committee should consider inviting the public to have input into the current review of the regime,” Law Society spokesperson Jonathan Orpin-Dowell said.

The Act allows special conditions to be imposed on a returning offender which may have an element of double jeopardy or additional punishment.

“An offender may be subject to a further period of supervision on an existing sentence, for example, and it’s this additional punishment which can create an inconsistency between New Zealand offenders and overseas offenders”, Mr Orpin-Dowell says.

"The legislation may also apply retroactively. The Act applies to convictions in respect of offending which occurred before the Act was passed. This may be a direct breach of the prohibition against retroactive penalties in the Bill of Rights Act”.

“The committee should satisfy itself that the interference with the right to be free of retroactive penalties and double jeopardy is demonstrably justified in a free and democratic society, as required by the Bill of Rights Act”, Mr Orpin-Dowell 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.

“This is inconsistent with the Attorney-General’s expectations when the Act was passed and the Ministry of Justice’s 2017 review report reveals the Act has not operated as intended”, Mr Orpin-Dowell says.  

The Law Society has recommended special conditions only be imposed where the court is satisfied they are necessary to achieve the purposes of the Act.

The Law Society has also recommended a range of other amendments, if the Act is to remain in force.

Last updated on the 14th June 2018