Returning Offenders (Management and Information) Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

NO

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

To inform decisions on the policy of the Bill, the Ministry of Justice prepared a Regulatory Impact Statement entitled Management of offenders returning to New Zealand, dated 12 October 2015.  A copy of the RIS can be accessed on the Ministry’s website or from the following page on the Treasury’s website:

http://www.treasury.govt.nz/publications/informationreleases/ris

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

NO

The Regulatory Impact Statement did not meet the threshold for an independent assessment of its quality.

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

YES

The Regulatory Impact Statement did not provide an analysis of one aspect of the policy, which was developed at a later stage.  This is clause 33, which empowers the courts to impose conditions, for a term to be specified by the court, on returning offenders who do not qualify for automatic management under the Bill because they have been managed in the overseas community for more than six months after their release from prison.  A similar approach was analysed in the Regulatory Impact Statement (as option 4), which involved the courts imposing conditions at its discretion in all cases, rather than on an automatic basis.  However, this option would have either limited the term of the conditions imposed by the courts or provided judicial guidance to ensure the term of the conditions reflects that of the prison sentence that was imposed overseas.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

The Regulatory Impact Statement referred to above provides the most recent analysis of the potential costs and benefits of the policy the Bill gives effect to.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

YES

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

YES

The Regulatory Impact Statement makes assumptions about the rate at which offenders would comply with the release conditions applying under the Bill and the rate at which determinations made and any special conditions imposed under the Bill would be judicially reviewed.  Both of these assumptions affect the estimated costs and benefits of the policy. 

It is anticipated that both New Zealand Police and the Department of Corrections would take measures necessary to ensure their own compliance with the provisions of the Bill and that of offenders they are interacting with.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

The Ministry of Foreign Affairs and Trade, the Ministry of Business, Innovation and Employment and the Crown Law Office were among the government agencies consulted during the development of the policy.  The Ministry of Justice also used internal expertise to identify international obligations that might be affected by the policy.  No inconsistencies with New Zealand’s international obligations have been identified.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

The Ministry of Justice has given consideration to the Bill’s consistency with the principles of the Treaty of Waitangi as part of the policy development process.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

The Crown Law Office has provided this advice to the Attorney-General, which may result in any apparent inconsistency in the Bill with the New Zealand Bill of Rights Act 1990 being drawn to the House’s attention under section 7 of that act.

Advice provided to the Attorney-General, or a section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice's website upon introduction of the Bill.  Such advice, or reports, are accessible on the Ministry's website at:

http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights/

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

The Bill creates criminal offences and penalties for non-compliance with:

• requests or directions made by Police in order to obtain accurate identifying information (including the deliberate provision of false or misleading information), which would be punishable by up to six months’ imprisonment or a fine of up to $5,000 (clause 13)
• any release conditions applying or imposed under the Bill, which would be punishable by up to one year’s imprisonment or a fine of up to $2,000 (clause 31).

The Bill also establishes procedural and decision-making powers that would be reviewable by a court or higher court, including decisions by a district court to impose release conditions on a returning offender.

The Bill does not create an explicit right of appeal in relation to a determination that a person is to be automatically subject to release conditions.  The Bill states that the relevant provision does not affect a returning prisoner’s right to apply for judicial review (clause 22).

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

These proposals were developed by the Ministry of Justice.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

YES

Clauses 9-12 of the Bill provide for the collection, storage and use of ‘identifying particulars’ from returning offenders.  This includes, for example, the person’s biographical details and their intended address, as well as an authority to take their photograph and fingerprints.

Clauses 14 and 15 of the Bill also make returning offenders liable to provide a DNA sample to Police, either by consent or by compulsion notice.  Existing provisions in the Criminal Investigations (Bodily Samples) Act 1995, with certain modifications, govern the collection, storage and use of this information.

3.5.1. Was the Privacy Commissioner consulted about these provisions?

NO

The provisions in the Bill are consistent with existing provisions in other legislation and consultation with the Privacy Commissioner was consequently considered unnecessary.

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

In the time available, only New Zealand Police, the Department of Corrections and the Crown Law Office were consulted on drafts on this Bill.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

YES

The Bill establishes procedures and offender management practices that are based closely on existing procedures and management practices for which Police and the Department of Corrections are responsible.  Those agencies have been involved in the development of the Bill and ensuring that the Bill’s provisions will be workable in practice.

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

 -

Clause 18 provides that the Commissioner must make a determination that a person is a returning prisoner no later than 6 months after that person’s return to New Zealand.  If this provision is applied to those who returned to New Zealand before the effective date of the Bill, and they consequently become subject to a period of release conditions, it could be argued that the Bill is retrospectively affecting their rights and freedoms and imposing obligations on them.

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

YES

Clause 31 of the Bill is modelled on section 71 of the Parole Act 2002 and, accordingly, makes it an offence to, without reasonable excuse, breach a release condition applying or imposed under the Bill.  Offence provisions are expressed this way to provide the accused person with an opportunity to defend the charge by establishing that they had a reasonable excuse for failing to comply with the condition in question.  This modifies the usual burden of proof somewhat.

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

NO

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

The Bill establishes several decision-making powers that would affect the obligations and interests of applicable offenders returning from overseas:

Powers to take information

Clauses 9 – 11 and 14 of the Bill empower Police to obtain information and a DNA sample from returning offenders.  These decisions make offenders liable for detention and criminally obliged to cooperate with efforts to take that information. 

However, it is only an offence under clause 13 to not comply with a direction to provide information after being cautioned by the constable.  The authority to take information and the process used may be judicially reviewed.  There are a number of existing safeguards in the Criminal Investigations (Bodily Samples) Act 1995 (e.g. the right to consult a lawyer) that would also apply to returning offenders providing a DNA sample under the Bill.

Determinations made by the Commissioner

The Commissioner of Police is responsible for determining, under clause 18 of the Bill, whether a person is a returning prisoner.  This determination makes the person liable to be managed under release conditions for a period specified by clause 24 of the Bill.

The basis for a determination is the purely factual conclusion that the person is a returning prisoner as defined by clause 17 of the Bill.  A person who believes this conclusion has been reached in error can apply for the determination to be reviewed by the Commissioner, which does not limit their right to apply for judicial review.  Other safeguards include the requirement to serve a written notice of the determination on the person affected and for the notice to include a variety of useful information.

Judicial power to impose conditions

Clause 26 empowers the court to, on application by the Department of Corrections, impose any special conditions on a returning prisoner that it believes would fulfil the purposes specified in that section.  The court could also impose special conditions on an interim basis, under clause 27, if it considers them immediately necessary.  Clause 33 also empowers the court to impose any conditions it sees fit, on application by the Department of Corrections, in the case of a returning offender who does not qualify as a returning prisoner because, at the time they were returned to New Zealand, they had spent more than six months being managed in the overseas community since their release from prison.

These judicial powers are all constrained by the express purposes for which release conditions may be imposed under the Bill.  They could also be appealed to a higher court.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

YES

Clause 33 has a feature that could be considered unusual.  Although it provides that the court must specify when conditions imposed under Subpart 3 end, it does not state a maximum period of conditions.  In comparable contexts in the Parole Act and the Sentencing Act, a maximum period is stated.  This creates the possibility that offenders could be subject to conditions imposed under clause 33 for longer than if they met the criteria for a returning prisoner, despite the potentially long period they have already spent under supervision in the overseas community.