Ardern Jacinda: Returning Offenders (Management and Information) Bill — First Reading Second Reading In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Returning Offenders (Management and Information) Bill — First Reading Second Reading In Committee[Sitting date: 17 November 2015. Volume:710;Page:8090. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): I just want to begin because it is relevant to Part 2 by just reflecting briefly on the contribution made by Marama Fox. She finished her speech by saying that until now there had been no way of monitoring for instance child sex offenders or sex offenders who were deported back to New Zealand. That is actually not the case.The Minister of Justice knows because she was the Minister who was in the role of Minister of Justice when this piece of legislation came through and that is the Parole (Extended Supervision Orders) Amendment Act. The interesting thing about this Act which demonstrates that actually we are not being contradictory when Labour on the one hand says that this bill should have had due consideration because it could have gone through earlier—the point is made by the extended supervision Act.This Act began its life in April 2014 when we still did not have our information-sharing arrangement with Australia. We knew however that that was on the cards. The Minister was working hard to try to get officials and counterparts on board. That piece of legislation—and this is relevant to Part 2 because it talks about the similar regime that has been used here as has been used in Part 2—talks about the meaning of an eligible offender and this language will be familiar.It says here that a person who is eligible “… has arrived in New Zealand within 6 months”—again that 6-month timeline—“of ceasing to be subject to any sentence supervision conditions or order imposed on the person for a relevant offence by an overseas court; and (ii) has since that arrival been in New Zealand for less than 6 months; and (iii) resides or intends to reside in New Zealand.” Those are the criteria for an extended supervision order to apply to someone who has committed an offence at a high enough level.We know that we already have offenders who fulfil those criteria. This is relevant because in Part 2 we are covering them off again. There is a definition in there that allows for someone who has committed a serious offence to be covered by this bill but we already have a regime. We know that since 2013 approximately 70 percent of returning offenders have been convicted overseas for serious offences: assault 30 percent; armed robbery or burglary 20 percent; rape or sexual assault including child sex offenders 15 percent; and murder or manslaughter 5 percent.Yet it is my understanding that extended supervision orders have not been used once. That is my understanding. I would be very interested to hear from the Minister why that is the case. The reason I would be interested in hearing that is because in Part 2 we have two regimes set out. One is a default regime; the other is a regime that must be triggered through an application through the courts by corrections.If we already have a regime like that set up through the extended supervision orders but it has not been used why is that? Was the threshold test not met? Were corrections not spry enough to make the applications? Was the definition of the offenders captured incorrect? This is really critical information because if there has been some kind of drafting error in the extended supervision orders—given it mirrors what we are doing in Part 2—we need to know that. Why has it not been used? You need to also know it because the Department of Corrections plays a critical role in enacting part of this Part 2.Let us go through this because I want to just explore potentially whether there may be two gaps where we are exposed by the two definitions in Part 2 of who is covered under this legislation. Under clause 17 we have the criteria for determination that a person is a returning prisoner. Keeping in mind that the definition applies we have a returning prisoner and we have a returning offender. One is more immediate than the other. The returning prisoner—“The Commissioner must determine that a person is a returning prisoner if the Commissioner is satisfied that the person—(a) has”—and as we have traversed already—“been convicted [of a relevant offence]…of more than 1 year…and (c) is returning…within 6 months”.The important point here and I want the Minister to confirm whether or not I am correct is if they come back to New Zealand and a determination notice is not issued within 6 months of that return is it correct that that opportunity is completely lost for any kind of monitoring regime? So they could fulfil the criteria for a determination order as set out in Part 2 but if corrections drops the ball and if for some reason the determination notice is not offered or if there is no opportunity for a determination notice to be issued in writing then that opportunity is lost.The reason I raise that is because in clause 19 it sets out that “The Commissioner must serve a written notice on a person”—we are now calling them “p”. I do not know if this is a new drafting thing but for the rest of them they are just called “p”. I find that confusing. In the criminal world there is another reference for “p” but that means person. So if I read out “p” it means person. “The Commissioner must serve a written notice on a person (P) who has been determined to be a returning prisoner. (2) The notice must be served—(a) if practicable on P’s return to New Zealand; or (b) if service on P’s return to New Zealand is not practicable as soon as is reasonably practicable …in any event not later than 6 months after P’s return to New Zealand.”I know that we have difficulty serving protection orders in this country. It is a massive task and the police do not even always do that job even if we know that the person that the order needs to be served on has committed assault on a victim. The police then are not always the ones serving the notice. So how do we know who is serving these notices? Who is serving them? Is it the police? Because I am very sceptical of their ability to make sure that every single person who is covered in this bill will be able to be found in a practicable time by police.I would be interested in clarification. Who is doing that job? Essentially if someone arrives and disappears and we do not find them in 6 months it is game over no matter how serious their offence. It is a point I want to make to this Committee.This bill is not based on the seriousness of offence. It is not. That is not what determines whether or not you will be covered by monitoring conditions. What is determined is how quickly you are deported after you are released. That is what determines whether you will be monitored. That seems to me to be a flaw in the principle of what we are trying to do here. For instance someone who has had low-level offending done prison for a year or more they come out they are detained straight away in a facility for 6 months brought back to New Zealand and they will be monitored. By default they will be monitored.Someone however who for instance may be on a life sentence but has been free in Australia for 6 months is not covered by default. If they come back into New Zealand we are then reliant on the next definition. I will find it in the bill. The next definition is for the returning offender who returns to New Zealand more than 6 months after release from custody. For these offenders we are absolutely reliant on the court imposing conditions on that returning offender as set out in this bill.So again that is reliant on the application of the chief executive to impose any conditions on a returning offender to whom this subpart applies—and the subpart of course being the definition around their having spent 6 months or more free but having some conditions imposed on them. Again that happens if you have got a serious offence. So this seems to be a big hole. The default stuff seems to potentially cover a lower level but potentially the more immediate but we are reliant on corrections being spry for those areas where they might have a set of conditions that are being imposed by Australia that probably should continue to be imposed here.I come back to my original point. If we are to have faith in corrections being able to do that sufficiently why when we know the seriousness of offenders who have already found themselves in New Zealand have we still not used extended supervision orders? Does that demonstrate that we should not have faith in corrections that it is necessarily going to apply this subclause correctly and in a timely manner? That is my concern.We have merged together two definitions around who is being captured and we may end up being more punitive to the lower-level offenders than we necessarily might be on those who might have a wider set of conditions. I accept that the Minister I think has identified this issue herself with the new clause I think that is 27(1) which reverses the onus that the court basically for a certain level of offending has to impose conditions. But that actually was about making sure that where we had incomplete information we were doing something quickly and effectively.I have concerns that we are leaving too much up to officials who have already demonstrated to us that they are stretched and may not apply their discretion appropriately.