SpeechRETURNING OFFENDERS (MANAGEMENT AND INFORMATION) AMENDMENT BILLFirst ReadingHon KIRITAPU ALLAN (Minister of Justice): I present a legislative statement on the Returning Offenders (Management and Information) Amendment Bill.ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.Hon KIRITAPU ALLAN: I move That the Returning Offenders (Management and Information) Amendment Bill be now read a first time.A recent High Court decision found that the Returning Offenders (Management and Information) Act 2015 does not apply retrospectively. The court also found that natural justice requires the Commissioner of Police to provide notice and a right to be heard before determining a returning offender's status under the Act. The effect of the decision means that the Act is not available for returning offenders such as 501 deportees from Australia who offended before the Act came into force in 2015. The decision would also delay the making of returning offenders orders which are currently served on the person as they enter the country.There are currently about 265 returning offenders being managed by the Department of Corrections on particular conditions and of this cohort about 40 are being managed for convictions that pre-date the Act with several considered to be high risk. The court's findings mean that these offenders could apply to have their order quashed and further this affects future returning prisoners with offending that pre-dates the Act as they would be released into the community on arrival into New Zealand without any specific agency support or oversight. To put it simply I consider that this situation amounts to an absolutely unacceptable and urgent risk to public safety and it's contrary to how Parliament always intended the Act to work.It is appropriate that the bill is passed through all three stages under urgency as it only affirms what I consider to be Parliament's original intention for the returning offenders regime. Further the Justice Committee reviewed the Act as recently as 2019 and concluded that it was at that point operating as it was intended.I want to acknowledge the bill's impact on the New Zealand Bill of Rights Act 1990. Increasingly New Zealand courts have taken the view that regimes such as the principal Act which imposes restrictions that are usually only available through the criminal jurisdiction are punitive. I consider these amendments are necessary to protect public safety and are limited in terms of their practical impact on the rights of returning offenders. This is because the bill only puts returning offenders in the same position that they would have been in if they had've offended in New Zealand because parole is not generally regarded in New Zealand as a separate penalty but the administration of the original penalty and because the vast majority of returning offenders would have been subject to parole regimes in the jurisdictions they offended in had they not been deported to New Zealand upon their release from prison.I wish to draw the attention of members to the four legislative changes the bill proposes to address the issues raised in the High Court decision. First the bill explicitly provides that the regime applies retrospectively. This bill clarifies that all operative provisions of the Act apply retrospectively even where this is inconsistent with the New Zealand Bill of Rights Act. Express and clear direction as to the Act's retrospective application would ensure that the Corrections department can continue to manage the 40 returning prisoners with pre-2015 convictions as well as future offenders with pre-2015 offending histories.Secondly the bill provides that standard and special conditions can still be imposed even where this might be inconsistent with the New Zealand Bill of Rights Act. There is a risk following the High Court decision that the court might not consider; the Act allows it to impose special conditions where inconsistent with the New Zealand Bill of Rights Act. This is because section 6 of the New Zealand Bill of Rights Act requires legislation to be given an interpretation consistent with that bill where possible. Special conditions are essential to protect public safety and for the overall operation of the returning offenders regime. For these reasons the bill clarifies that standard conditions can be imposed irrespective of any possible unjustified limitations of sections 25(g) and 26(2) of the New Zealand Bill of Rights Act. These are the provisions that might be engaged specifically because of the Act's retrospective application. Conditions might continue to comply with all other rights protected by the New Zealand Bill of Rights Act.Third the bill confirms that natural justice requirements for determinations are satisfied through the existing review mechanism. The High Court held that natural justice generally requires that returning offenders are given adequate notice and a right to be heard before the Commissioner of Police makes a determination that a returning offender is a returning prisoner. This new requirement will delay the imposition of conditions creating a public safety gap. I do not consider that notice and the right to be heard is required for a fair determination process. This is because the matters that the commissioner is required to be satisfied of before making the determination are wholly objective and factual in nature. This means that the commissioner must make a determination where the statutory criteria are met.Additionally the Act already provides for a process by which the affected person can seek a review of their determination. However I do consider that there is merit in removing the current time limit on applications for a review of determination notice which is currently set at 15 days. This responds to concerns raised by the court and will mean that returning offenders have more time to seek legal advice and prepare an application for review.Fourth this bill validates past conduct and determinations that were made on the basis of offending that occurred prior to 2015. The bill confirms that all returning offending orders made since the Act came into force are not invalidated merely because they were imposed for offending that pre-dated November 2015. The bill includes a provision that excludes G the applicant in the High Court case from the validation of the retrospective applications of the Act. The Government acknowledges that it would not be constitutionally appropriate to legislate over the ongoing litigation and that therefore has been set aside.To conclude finally I wish to thank members for accepting the need to pass this bill rapidly through all stages. It is critical to public safety that we address the issues raised by the High Court decision as soon as possible. I want to reiterate that this bill affirms what I consider to be Parliament's original intention of the returning offenders regime. Consequently the bill only aims to put returning offenders in the general same position as they would have been had they offended in New Zealand. I acknowledge the bill raises New Zealand Bill of Rights Act issues and these have been addressed. Ultimately I consider these amendments are necessary to protect public safety and are limited in terms of their practical impact on the rights of the returnees. Therefore I commend this bill to the House.ASSISTANT SPEAKER (Hon Jenny Salesa): The question is that the motion be agreed to.