Returning Offenders (Management and Information) Act 2015

1: Title
This Act is the Returning Offenders (Management and Information) Act 2015.
2: Commencement
This Act comes into force on the day on which it receives the Royal assent.
1: Preliminary provisions
3: Purpose
The purpose of this Act is to obtain information from returning offenders and establish release conditions for offenders returning to New Zealand following a prison sentence of more than 1 year in an overseas jurisdiction.
3A: Act’s provisions apply retrospectively
1: A provision of this Act applies to a person after the provision’s commencement even if all or any of the following occurred before the provision’s commencement:
a: the person’s conduct overseas that constitutes an imprisonable offence in New Zealand:
b: the person’s conviction for an overseas jurisdiction offence for that conduct:
c: the person’s having been sentenced to 1 or more terms of imprisonment overseas for the overseas jurisdiction offence:
d: the end of the person’s sentence of imprisonment overseas for the overseas jurisdiction offence:
e: the person’s release from custody in a prison overseas or, if the person is detained in an immigration or other facility overseas following release from prison overseas, release from that facility overseas:
f: the person’s deportation or removal to New Zealand on grounds that are or include their conviction for the overseas jurisdiction offence:
g: the person’s return to New Zealand:
h: the person’s conviction for the overseas jurisdiction offence being overturned:
i: the person’s being pardoned for the overseas jurisdiction offence:
j: any other conduct of, or event relating to, the person that the provision requires to have occurred in order for the provision to apply.
2: This section does not affect or limit—
a: the validations in clause 8
b: the exception to those validations in clause 9
3: This section overrides any inconsistent other law.
4: In particular, any other law
a: section 7
b: section 12
c: G v Commissioner of Police Section 3A inserted 28 February 2023 section 4 Returning Offenders (Management and Information) Amendment Act 2023
3B: Act’s provisions override inconsistent other law
1: This section applies to conduct—
a: mentioned in, or otherwise necessary for carrying out, or giving full effect to, a provision of this Act; and
b: after the provision’s commencement.
2: Examples of the conduct are—
a: making, amending, revoking, or revoking and replacing, a determination or other decision:
b: requesting a person to provide identifying particulars and taking them if the person provides them in response to a request, detaining the person (using reasonable force if necessary) if the person refuses, taking the identifying particulars of a person who has been detained for the purpose of taking them, giving a direction related to exercising those powers, or entering, recording, and storing on a Police information recording system the identifying particulars of a person that are provided in response to a request or otherwise taken:
c: issuing, amending, revoking, revoking and replacing, or serving a notice (for example, a databank compulsion notice under section 14
d: applying for, issuing, or executing a warrant for entry to any premises to serve a determination notice:
e: applying for, imposing, varying, discharging, or revoking a standard release condition or a special condition (which, in this section, includes, without limitation, a condition imposed under section 33(1) sections 26 to 31 section 34
f: suspending under section 28(3)
g: administering a standard release condition or a special condition (for example, monitoring compliance with a standard release condition or a special condition, and investigating and prosecuting an offence of breaching a standard release condition or a special condition):
h: reviewing under section 22 section 17
i: doing, or omitting to do, any other act or omission mentioned in, or otherwise necessary for carrying out, or giving full effect to, the provision.
3: The conduct must or may be done or omitted in accordance with the provision even if the conduct is, for an overseas jurisdiction offence for which the relevant person has been convicted and punished overseas, 1 or both of the following:
a: punishment again:
b: a variation and increase of penalty between commission of, and sentencing for, that offence.
4: This section does not affect or limit—
a: the validations in clause 8
b: the exception to those validations in clause 9
5: This section overrides any inconsistent other law.
6: In particular, any other law
a: section 6(1) and (2)
b: sections 25(g) 26(2)
c: G v Commissioner of Police Section 3B inserted 28 February 2023 section 4 Returning Offenders (Management and Information) Amendment Act 2023
4: Interpretation
1: In this Act, unless the context otherwise requires,— 1995 Act Criminal Investigations (Bodily Samples) Act 1995 chief executive Commissioner constable section 4 court Customs place section 5(1) detain determination notice section 19 drug or alcohol condition section 15(3)﻿(ba) sections 26(4) 27 34 identifying particulars section 32(5) overseas jurisdiction
a: excludes the islands and territories within the Realm of New Zealand; but
b: includes the self-governing state of the Cook Islands, the self-governing state of Niue, Tokelau, and the Ross Dependency overturned see sections 23A 34A
a: without an order for retrial; or
b: with a retrial being ordered but—
i: not being proceeded with; or
ii: not resulting in a conviction; or
iii: being ended by a stay of proceedings pardoned see sections 23A 34A
a: has been granted a free pardon for the offence; or
b: is, because of the exercise of other applicable legal powers of clemency or mercy, otherwise taken never to have committed the offence Parole Act Parole Act 2002 Police release condition relevant sentence section 17(1)﻿(b) returning offender section 7 returning prisoner section 16 sentence of life imprisonment section 24(3) special condition section 26(1) 27(1) standard release condition section 25 the provision’s commencement this provision’s commencement
a: this Act’s commencement; and
b: the commencement of any other related provision of this Act inserted, amended, or replaced after this Act’s commencement; and
c: the commencement of any legislation inserting, amending, or replacing the provision.
2: In this Act, unless the context otherwise requires, a term that is used but not defined, but that is defined in the Parole Act, has the same meaning as in that Act. Section 4(1) Customs place amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 4(1) drug or alcohol condition inserted 15 May 2017 section 4 Returning Offenders (Management and Information) (Drug and Alcohol Testing) Amendment Act 2016 Section 4(1) overturned inserted 30 November 2022 section 114 Statutes Amendment Act 2022 Section 4(1) pardoned inserted 30 November 2022 section 114 Statutes Amendment Act 2022 Section 4(1) the provision’s commencement this provision’s commencement inserted 28 February 2023 section 5 Returning Offenders (Management and Information) Amendment Act 2023
5: Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1
6: Act binds the Crown
This Act binds the Crown.
2: Returning offenders: management and information
1: Returning offenders
7: Who is returning offender
A returning offender
a: is a person who has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand and, being liable for deportation or removal as a result of that conviction, has returned to New Zealand; and
b: includes a returning prisoner. Taking identifying particulars from returning offenders
8: Purpose of obtaining information for use by Police for any lawful purpose
The purpose of sections 9 to 11 2008 No 72 ss 32(1) 33(1)
9: Police may request returning offender to provide identifying particulars
The Police may, as soon as is reasonably practicable, request a returning offender to provide identifying particulars and may detain the offender under section 10
10: Police may detain returning offender for purpose of taking identifying particulars
1: A constable may, for the purpose of taking the identifying particulars of a returning offender, detain the offender on, or at any time within 6 months after, the offender’s return to New Zealand.
2: A constable may detain an offender under subsection (1) only for a period that is no longer than is reasonably necessary in the circumstances for a constable to take the identifying particulars of the offender.
3: A constable may use reasonable force, if it is necessary, to detain an offender under subsection (1). 1996 No 27 s 148A(1), (6)
11: Police may take identifying particulars
A constable may take the identifying particulars of a returning offender who has been detained under section 10
a: must do so in a manner that is reasonable in the circumstances; and
b: may only use reasonable force that may be necessary to secure those identifying particulars. 2008 No 72 s 32(3)
12: Storage, etc, on Police information recording system of identifying particulars
1: The identifying particulars of a returning offender that are provided in response to a request under section 9 section 11
2: However, photographs or visual images of a returning offender, and impressions of that person's fingerprints, palm-prints, or footprints, that are provided in response to a request under section 9 section 11
3: In subsection (2), error 2008 No 72 s 34
13: Offence of failing to comply with constable’s direction
1: A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under section 10 11
a: commits an offence; and
b: is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.
2: A person who, in response to a request under section 9 section 11
a: commits an offence; and
b: is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both. 2008 No 72 s 32(4) Obtaining bodily samples from returning offenders
14: Criminal Investigations (Bodily Samples) Act 1995 applies to certain returning offenders
1: For the purpose of obtaining a bodily sample by a databank compulsion notice under Part 3
a: a ground of the offender’s removal or deportation to New Zealand was the offender’s conviction in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and
b: that conviction would, if entered in a New Zealand court, be a conviction to which Part 3 section 4
2: For the purpose stated in subsection (1), Parts 3 to 5
a: with all necessary modifications; and
b: subject to the express modifications set out in section 15
15: Express modification of Part 3 of 1995 Act
Part 3 section 14(1)
a: section 39(3)﻿(a)
b: in sections 39A(3), 39C(2) 46A(1) section 15 section 26 27
c: section 39C(3)﻿(a)
d: section 39C(3)﻿(b) and (4)﻿(b)﻿(ii)
e: in sections 41 41B 44 45 47 appropriate court
f: sections 41(2)﻿(d) 42(4)
g: section 41(2)﻿(e)﻿(i) and (ii)﻿(B)
2: Returning prisoners
General
16: Who is returning prisoner
A returning prisoner section 17
17: Criteria for determination that person is returning prisoner
1: The Commissioner must determine that a person is a returning prisoner if the Commissioner is satisfied that the person—
a: has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and
b: has, in respect of that conviction, been sentenced to—
i: a term of imprisonment of more than 1 year; or
ii: 2 or more terms of imprisonment that are cumulative, the total term of which is more than 1 year; and
c: is returning or has returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.
2: In subsection (1), release from custody
3: To avoid doubt, a person who is released at the end of a prison sentence and has been in the community for more than 6 months is not a returning prisoner, even though he or she is later detained in an immigration or other facility. Commissioner’s determination that person is returning prisoner
18: Time for Commissioner to determine that person is returning prisoner
A determination by the Commissioner that a person is a returning prisoner must not be made later than 6 months after that person’s return to New Zealand.
18A: Notice and right to be heard
1: A determination by the Commissioner that a person is a returning prisoner must be made without providing the person with notice or a right to be heard.
2: This section does not prevent a person providing voluntarily to the Commissioner, in response to a request that the Commissioner may (but need not) make, information—
a: about whether the person is a returning prisoner; and
b: adding to other information available to the Commissioner about that matter.
3: This section also does not affect a returning prisoner’s right to apply for—
a: review under section 22
b: judicial review of the Commissioner’s determination. Section 18A inserted 28 February 2023 section 6 Returning Offenders (Management and Information) Amendment Act 2023
19: Determination notice
1: The Commissioner must serve a written notice on a person ( P
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 after P’s return to New Zealand; but
c: in any event, not later than 6 months after P’s return to New Zealand.
3: The notice must state the information set out in section 20
20: Content of determination notice
A determination notice must—
a: state that the person named in the notice ( P
b: state that P is subject to release conditions under this Act; and
c: state the period for which P is subject to release conditions; and
d: set out the standard release conditions and any special condition or interim special condition; and
e: state that P must report to a probation officer at a probation service centre within 72 hours of service of the notice; and
f: provide information about how to contact a probation officer; and
g: state that P may be required to provide identifying particulars; and
h: explain P’s right under section 22
i: state the grounds on which P may apply for a Commissioner’s review; and
j: state the time limit for applying for a Commissioner’s review; and
k: state that P’s release conditions are not suspended on account of a Commissioner’s review; and
l: state that, on the application of the chief executive, a court may impose 1 or more special conditions on P; and
m: record the date on which the notice is served and the identity of the person who serves it.
21: Entry to premises to serve determination notice
A court may, on the application of the Commissioner, issue a warrant for entry to any premises where a returning prisoner is reasonably believed to be present if the court is satisfied that a person has refused or refuses to allow the Police to enter those or any other premises in order to prevent or avoid service of a determination notice.
22: Review of Commissioner’s determination
1: A returning prisoner may apply to the Commissioner to review a determination under section 17
a: the returning prisoner does not meet 1 or more of the criteria set out in section 17(1)
b: the determination notice incorrectly states the period for which the returning prisoner is subject to release conditions; or
c: the determination notice was served more than 6 months after a person’s return to New Zealand.
2: The application must be made at any time
3: The review must be a factual inquiry only and must be completed within 20 working days after receipt of the application.
4: The Commissioner must—
a: give the applicant a reasonable opportunity to state his or her case before the Commissioner makes a decision; and
b: confirm, modify, or revoke the determination notice; and
c: notify the applicant of his or her decision in writing without unreasonable delay.
5: Nothing in this section affects the right of a returning prisoner to apply for judicial review of the Commissioner’s determination under section 17 Section 22(2) amended 28 February 2023 section 7 Returning Offenders (Management and Information) Amendment Act 2023
23: Review does not suspend release conditions
An application for a review under section 22
23A: Commissioner must revoke determination if conviction overturned, or person pardoned, for overseas jurisdiction offence
1: The Commissioner must revoke a determination that a person is a returning prisoner if, after considering information provided by or on behalf of the person, the Commissioner is satisfied—
a: that the person has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and
b: that the determination was made in respect of the conviction; and
c: that the conviction has been overturned, or that the person has been pardoned for that overseas jurisdiction offence.
2: This section does not limit any other duty or power of the Commissioner or of a court to amend or revoke the determination.
3: After the revocation, the person—
a: is no longer a returning prisoner because of the determination; and
b: is no longer subject to, and required to comply with, standard release conditions because of service on the person of a determination notice related to the determination; and
c: is no longer required to comply with any special conditions, or interim special conditions, imposed on the person by the District Court because of the determination.
4: Subsection (3) overrides sections 24 to 30 Section 23A inserted 30 November 2022 section 115 Statutes Amendment Act 2022 Consequences of determination as returning prisoner
24: Returning prisoner subject to standard release conditions
1: A returning prisoner is subject to standard release conditions from the time of service on that person of a determination notice.
2: The period for which a returning prisoner is subject to standard release conditions is,—
a: if the relevant sentence is imprisonment for a term that is more than 1 year but not more than 2 years, 6 months:
b: if the relevant sentence is imprisonment for a term that is more than 2 years but not more than 5 years, 1 year:
c: if the relevant sentence is imprisonment for a term that is more than 5 years but is not a sentence of life imprisonment, 2 years:
d: if the relevant sentence is a sentence of life imprisonment, 5 years.
3: In subsection (2), sentence of life imprisonment
a: means an indeterminate sentence under which a person is liable to imprisonment for the rest of his or her life following conviction for an offence; and
b: includes a sentence that is, or corresponds to, a sentence of preventive detention.
25: Returning prisoner must comply with standard release conditions
A returning prisoner must comply with the following conditions (the standard release conditions
a: the returning prisoner must report to a probation officer at the probation service centre stated in the determination notice as soon as practicable, and not later than 72 hours after service of the determination notice:
b: with all necessary modifications, the standard release conditions set out in section 14(1)﻿(b) to (i) 2002 No 10 s 14(1)
26: Returning prisoner must comply with special conditions imposed by court
1: A court may, on the application of the chief executive, impose 1 or more special conditions on a returning prisoner and the returning prisoner must comply with those conditions during the period for which those conditions are imposed.
2: A court must not impose a special condition for a longer period than the period for which the standard release conditions apply to the returning prisoner.
3: A court must not impose a special condition unless it is designed to—
a: reduce the risk of reoffending by the returning prisoner; or
b: facilitate or promote the rehabilitation and reintegration of the returning prisoner; or
c: provide for the reasonable concerns of victims of the returning prisoner.
4: The kinds of special conditions that the court may impose include, without limitation and with all necessary modifications, the conditions set out in section 15(3)﻿(a) to (f)
5: If a court imposes a special condition that is—
a: an electronic monitoring condition, section 15A
b: a residential restriction, sections 33 to 36
c: a drug or alcohol condition, sections 16A to 16E 71A 72A 74A to 74C
6: A court must not impose a special condition requiring the returning prisoner to take prescription medicine unless the returning prisoner—
a: has been fully advised, by a person who is qualified to prescribe that medication, about the nature and likely or intended effect of the medication and any known risks; and
b: consents to taking the prescription medication.
7: A returning prisoner does not breach his or her conditions for the purposes of section 31(1) 2002 No 10 s 15(1)–(3), (4), (5) Section 26(5)﻿(c) inserted 15 May 2017 section 5 Returning Offenders (Management and Information) (Drug and Alcohol Testing) Amendment Act 2016
27: Interim special conditions
1: A court may, on the application of the chief executive, impose 1 or more interim special conditions if the court is satisfied that, subject to section 26(3)
2: The chief executive may certify that the returning prisoner has a conviction for an offence in respect of conduct that would be a relevant sexual or violent offence for the purpose of Part 1A section 26(3)
3: For the purposes of subsections (1) and (2), and to avoid doubt, a court may impose interim special conditions on the information that is then available to the court, even though that information is incomplete or additional information is still being sought.
4: The application may be made, and the conditions may be imposed, before or after the returning prisoner returns to New Zealand.
5: The application may be made without notice and a court must not require that notice be given.
6: Interim special conditions imposed under this section expire after 30 working days after the returning prisoner returns to New Zealand, but a court may extend the expiry of the conditions by a reasonable period to allow an application under section 26(1)
28: Court may vary or discharge release conditions
1: A court may vary or discharge—
a: a special condition, on the application of a returning prisoner or a probation officer:
b: a standard release condition, on the application of a probation officer.
2: A court must not discharge a standard release condition with effect from a date that is less than 6 months after the date of service of the determination notice.
3: When a probation officer applies for the variation or discharge of a release condition, the probation officer may suspend the condition until the application is determined. 2002 No 10 s 56
29: Effect of subsequent sentence of imprisonment
1: This section applies when a returning prisoner is—
a: subject to release conditions imposed under this Act; and
b: sentenced to a term of imprisonment in New Zealand beginning before the end of the period for which he or she is subject to release conditions under this Act (the subsequent sentence
2: The release conditions imposed under this Act—
a: do not have effect for the period of imprisonment under the subsequent sentence; and
b: do not have effect to the extent that release conditions imposed in relation to the subsequent sentence apply; but
c: continue to run for purposes of the relevant period in section 24(2)
30: When release conditions end
Release conditions end when—
a: the period for which the returning prisoner is subject to release conditions expires; or
b: the release conditions are discharged; or
c: a public protection order is imposed on the returning prisoner under the Public Safety (Public Protection Orders) Act 2014
d: an extended supervision order is imposed on the returning prisoner under Part 1A
31: Offence to breach release conditions
1: A returning prisoner who is subject to a release condition under this Act and who, without reasonable excuse, breaches that condition commits an offence.
2: A person who commits an offence under this section is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $2,000. 2002 No 10 s 71
3: Returning offender who returns to New Zealand more than 6 months after release from custody
32: Who subpart applies to
1: This subpart applies to a returning offender who—
a: meets the criteria set out in section 17(1)
b: was, immediately before his or her return to New Zealand from the relevant overseas jurisdiction, subject to—
i: monitoring, supervision, or other conditions for the relevant sentence; or
ii: conditions imposed under an order in the nature of an extended supervision order or public protection order.
2: In subsection (1)﻿(b), immediately before his or her return to New Zealand
33: Court may impose conditions on returning offender
1: On the application of the chief executive, a court may impose any conditions on a returning offender to whom this subpart applies and must, if it does so, specify when the conditions end.
2: The court may impose conditions if it is satisfied that the conditions are—
a: necessary to facilitate the rehabilitation and reintegration of the returning offender; or
b: necessary to reduce the risk of reoffending by the returning offender; or
c: necessary for both purposes in paragraphs (a) and (b).
3: The conditions must not be imposed more than 6 months after the returning offender’s return to New Zealand.
34: Sections 26 to 31 apply to returning offender to whom this subpart applies
In relation to a returning offender to whom this subpart applies, sections 26 to 31
a: the returning offender were a returning prisoner; and
b: the reference in those provisions to a release condition or a special condition were a reference to a condition imposed under section 33(1)
34A: Application to court to revoke conditions imposed if conviction overturned, or person pardoned, for overseas jurisdiction offence
1: The chief executive must make an application to a court to revoke conditions imposed under this subpart on a person if, after considering information provided by or on behalf of the person, the chief executive is satisfied—
a: that the person has been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and
b: that the conditions were imposed under this subpart by a court in respect of the conviction; and
c: that the conviction has been overturned, or that the person has been pardoned for that overseas jurisdiction offence.
2: A court must revoke the conditions if, on an application made under this section by the chief executive, the court is satisfied of the matters specified in subsection (1)﻿(a), (b), and (c).
3: This section does not limit any other power of a court to amend or revoke the conditions.
4: After the revocation, the person is no longer required to comply with any conditions imposed on the person by a court under section 33(1)
5: Subsection (4) overrides sections 26 to 34 Section 34A inserted 30 November 2022 section 116 Statutes Amendment Act 2022
4: Amendments to other Acts and review
Subpart 4 repealed 28 February 2023 section 8 Returning Offenders (Management and Information) Amendment Act 2023
35: Parole Act 2002 amended
2015-11-18 Parole Act 2002 Section 35 repealed 28 February 2023 section 8 Returning Offenders (Management and Information) Amendment Act 2023
36: Public Safety (Public Protection Orders) Act 2014 amended
2015-11-18 Public Safety (Public Protection Orders) Act 2014 Section 36 repealed 28 February 2023 section 8 Returning Offenders (Management and Information) Amendment Act 2023
37: Review by select committee
Section 37 repealed 28 February 2023 section 8 Returning Offenders (Management and Information) Amendment Act 2023