Adams Amy: Returning Offenders (Management and Information) Bill — First Reading Second Reading In CommitteeText is incorporated into the Bound VolumeAdams Amy: Returning Offenders (Management and Information) Bill — First Reading Second Reading In Committee[Sitting date: 17 November 2015. Volume:710;Page:8099. Text is incorporated into the Bound Volume.]Hon AMY ADAMS (Minister of Justice): I have again listened to the contributions thus far on Part 2 and have tried to jot down for myself issues where I have felt that there has been a genuine issue raised by someone who has taken the time to try to understand the bill and is seeking clarity. I want to try to respond to each of those in the time we have left this evening.The first one I am going to start with is one that has come up from a few speakers which is around who is caught by the requirement to give identifying particulars and the information involved in that and whether that is too wide. Metiria Turei raised the point earlier and I did want to respond to that. That comes into the definition of who is a returning offender and therefore how wide that goes and how that works. So the first point is that the wording in the definition talks about as I have made clear someone who has been convicted of an offence that is an imprisonable offence in New Zealand. Just as a comparator under the Policing Act the requirement to provide identifying particulars—which as we have discussed is the same scope of information—applies to anybody who is being lawfully held in custody by the police; so much much wider. For any offence at all that is arrestable in New Zealand you have to provide that information and once it is provided the system has it.So what we are saying with returning offenders is the bar is actually higher. It is only when the conviction relates to an imprisonable offence. So in that sense not only is the bill about putting society in the same position it would be in if these offenders had served their time in New Zealand in terms of the supervision regime you could say it is about putting the system in the same position it would have been in had these people been through the system here. But in fact it is actually even narrower than that because it cuts out anyone who was arrested or charged or convicted of a lesser offence. So I hope that assuages the member’s concerns somewhat. That is what I went back and had a look at after we had had a discussion.The other point which I think Miss Ardern raised was the words around being liable for return as a result of that conviction. Again the point that we are trying to pick up here is that there is a distinction between a New Zealand citizen who is travelling or has lived abroad who may well have had a conviction overseas but who is just coming home. There is no intervention of the other jurisdiction there has been no suggestion their visa is going to be cancelled or is being cancelled—they are just coming back. There is no suggestion in any way that this legislation should therefore require them to provide returning particulars. So the wording here is making it very clear that their return to New Zealand is part of them being liable for removal because of that conviction not that the conviction is there and they are otherwise liable for removal. Their liability for removal has to be as a result of that conviction. So the member’s scenario where it might be some long-forgotten historic thing that has nothing to do with their removal would not pass that threshold test.The second thing though in that wording the other thing we had to be careful of is exactly the situation with the offenders who are returning back this week. You can be liable for removal you can have had your visa cancelled you can be going through a review process or you may just have decided you are not going to fight it and you are going to go back voluntarily. So what we did want to make sure we captured is where these offenders whom we are looking to capture are being returned to New Zealand that the legislation covers them whether or not they voluntarily elect to waive their rights and get on a plane once that process has started or whether they fight it all the way and get deported under operation of law. So that is the wording but with those two safeguards: of the type of offence that is caught and that the removal is as a result of that conviction. So I hope that addresses that in some way.I want to come to David Parker’s comment about clause 28 which I think you raised in Part 1. I did not respond then because I knew it would come up more appropriately in Part 2. I can assure the member that my reading my advice and my understanding are absolutely that it does not oust the jurisdiction of the court. What it is reviewing of course is whether once a standard condition is in place it should be varied. If of course it was ultra vires and it is in position then a standard condition has never been in place but to make it even clearer we have got clause 22(5) which makes it very clear that the court has a jurisdiction still to review the determination notice. Nothing in that clause changes that so yes I think that does make that point clear.Mr Parker I also wanted to touch briefly on your typescript amendment that you have just put in front of us. I think you are quite right—I do not think there is going to be a need to make a decision on it tonight so I am happy to keep talking to you about it. But what I will say is that I do not personally see at this stage that it is necessary. I think it runs the risk of being circular in that you have to know the person’s criminal offending record to be able to declare them a returning offender to be able to compel them. So if you are then relying on what they tell you as the justification for that process I think it becomes circular. The advice I have had from the police is that they do have the ability through their international counterparts through Interpol—quite outside the new information-sharing regime we have with Australia—to seek that information. They raised no concerns with me that there is any inability to get that and as I said I think you would end up creating a circular argument. So at this stage I am not of a view that it is needed but I am certainly happy to keep having a discussion if you want to to address that slightly differently.Mr O’Rourke raised some issues and I think Carmel Sepuloni might have as well around the detaining of offenders with a purpose of serving a notice and getting the identifying particulars. It is not at all uncommon to provide that the police have the power to detain for that purpose. Detaining simply means “Just sit here in this room while we work you through this notice and take your fingerprints.” otherwise you are detaining them unlawfully. So it is not some “At will as long as we like whenever we feel like it we can lock these people up.” It is simply staying in the rules.Denis O’Rourke: That’s what it says though.Hon AMY ADAMS: No because what you have is very long-established case law on exactly this sort of wording which makes very clear what “detaining for such time as is reasonable to carry out the function” means and nobody who operates in this area of law is under any illusion that it means anything other than a sensible amount of time to do what you need to do without putting the police foul of the law. So believe me we have considered that and I think in the light of case law we can be quite comfortable.Finally let me just come back to the final comment Mr Parker made around the review clause. I have addressed it. You may have missed it but I accept the view that the Labour members put up. My view was that rather than having two parallel processes happening at the same time the review should occur once we have a period of operation of the legislation. I have indicated that I am quite willing to talk with members if they think the structure of it should be set up differently in terms of who carries out the review or the period under which it is set to go. But I am of the view that that review will be a far more useful mechanism.Now of course there is nothing that stops a select committee or of course myself or whoever the Minister is reviewing it prior to that. But the point is to assure this House that the legislation will be compelled to be reviewed and returned to this House once there is a period of operation under it. I did consider the Labour members’ proposal. In my view it is unnecessary and that the review proposal we have put in the bill is a better outcome. I accept that Labour members do not agree with that but none the less I certainly did consider it and respond to Labour members on that basis. I think that is really all I wanted to respond to in respect of the discussion tonight.The only final point I would make is in respect of Mr O’Rourke’s comments that there are things he would have liked to test. That is why I did offer you many opportunities to contact me with any queries and we could have discussed them and worked through them. You did not take that up which of course is your right. In terms of what you have said in the House I am comfortable that you have not raised anything that has not been thought of in drafting but the offer is still there Mr O’Rourke. If you think there are things that you think you would like to see changed you are welcome to contact me over the course of this evening or in the morning. My door is still open. If issues can be identified I certainly want to hear them and work with you on them. I may not agree but we can at least have that discussion.