After Deportation, a ‘Second, New Zealand, Punishment’: The New Zealand High Court’s Decision on the Returning Offenders Act

Background

Since late 2014, Australia has deported over two thousand people to New Zealand. The majority are “501” deportees, named after section 501 of the Australian Migration Act 1958, the provision that allows Australian authorities to cancel the visa of a person who has failed a good character test (because they have a significant criminal record, for example). In response to Australia’s policy, New Zealand created the Returning Offenders (Information and Management) (“ROMI”) Act 2015. The purpose of the ROMI Act is ‘to obtain information from returning offenders’ and ‘establish release conditions’ for people returning to New Zealand following a prison sentence of more than one year in an overseas jurisdiction (ROMI Act, s 3). I have previously written about the Act. By imposing parole-like conditions for criminal offending and sentencing which took place in a different jurisdiction, New Zealand extends punishment beyond the usual temporal and geographical boundaries. It does so through a civil process which evades the protections and safeguards of criminal justice.   

The ROMI Act has enjoyed near unanimous political support since it was first drafted. The legislation passed through parliament under urgency and without public consultation. Every political party voted in favour, except for the Green Party which abstained. Notwithstanding concerns raised by the New Zealand Law Society, the Bill received the endorsement of the Attorney-General and, since passing into law, has met little resistance from the District Courts. Although envisioned as a safeguard against excesses in the use of ROMI powers, in only a handful of cases have the courts declined to approve conditions sought by the Department of Corrections. The legal and political consensus surrounding the regime was shattered last month by a landmark High Court judgment which found the Act to be in breach of numerous rights.

G v Commissioner of Police

The claimant, known as “G”, moved to Australia with his family when he was 11 years old. He lived there until his deportation in 2019 following a prison sentence for drug offences. Upon arrival in New Zealand, G was served with a determination notice identifying him as a “returning prisoner” for the purposes of the ROMI Act. He was immediately subject to a two-year period of standard release conditions, including notifying the police of an address change and allowing the collection of his fingerprints, photograph, and DNA. The Court also imposed three special conditions: to reside at an address approved by a probation officer; to attend and engage in rehabilitative assessment and any subsequent treatment or programme; and not to possess, use, or consume any controlled drug and/or psychoactive substance, except those prescribed for him by a health professional. Breach of a standard or special condition would be punishable by up to one year imprisonment or a fine up to $2,000. G, who represented himself at the High Court, argued that the conditions limited or breached his rights under the New Zealand Bills of Rights Act 1990 (Bill of Rights), including s 26 relating to retroactive penalty and double jeopardy.

The Attorney-General, in his 2015 report on the ROMI Bill, found no problem of retroactive penalty or double jeopardy. His conclusion was predicated upon the supposedly nonpunitive character of ROMI conditions—imposed through a civil framework and purportedly aimed instead at rehabilitation. At the High Court last month, Justice Gwyn objected to the Attorney-General’s privileging of purpose over effect. In the Justice’s words:

Where a proceeding, although classed as civil, in fact has potential consequences including the stigma inherent in a determination of criminal wrongdoing and the deprivation of liberty, it will be regarded as criminal for double jeopardy purposes (at 107).

According to Justice Gwyn, ROMI conditions have the effect of imposing a ‘second, New Zealand, punishment’ (at 108). This punitive quality is not negated by the Act’s civil framework or rehabilitative intent. A ROMI determination should therefore be treated as its own sentencing process, which engages s 26 of the Bill of Rights.

The High Court sided with G in finding the application of the ROMI Act to have violated his rights in respect to double jeopardy. The determination that G was a returning prisoner unleashed punitive consequences which ‘amount to the imposition of a further penalty, in New Zealand, for the same conduct for which he was convicted and had served his sentence in Australia’ (at 105). Moreover, G’s offending occurred before the Act became law and so the determination was imposed unlawfully on a retrospective basis. G’s rights to freedom of movement, privacy, and freedom from unreasonable search and seizure had also been breached. It was ordered that the determination be quashed and G’s biometric data be removed from national databases.

Looking ahead

The High Court’s decision has set a new legal precedent which could pave the way for hundreds of similar claims, potentially upending the ROMI regime. Government officials and policymakers have been quick to challenge the decision. The Crown Law Office has filed an appeal, with the matter to be heard in the Court of Appeal in February. Meanwhile a stay of proceedings has been granted until a longer-term solution is found. The solution will probably be little more than a tweaking of the existing legislation. Justice Minister Kiri Allan has reaffirmed her support for the ROMI Act, saying that the Government will ‘ensure legislation can be introduced when Parliament next sits, so the law has a retrospective effect.’ Amending the Act to allow for retrospectivity and double jeopardy would be technically straightforward because Parliament can overrule the Bill of Rights by passing legislation which makes express an intention to contravene particular rights.

Although an amendment might patch up the problem of double jeopardy and retrospectivity, it would undermine the justification for the Act’s civil framework by confirming the regime’s punitive character. The imposition of punishment outside of the criminal justice system is likely to be a source of concern for New Zealand’s senior courts. It is possible that a court will make a declaration of inconsistency under the Bill of Rights, even following an amendment. Should this happen, Parliament will be required to formally reconsider the Act.

A more sure-fire way of resolving the double jeopardy and retrospectivity problem would be to remove the penalty altogether, but this is something the Government seems unwilling to consider. Responding to the High Court’s decision, Prime Minister Jacinda Ardern defended the regime as being ‘necessary to keep communities safe.’ By the Government’s logic, community safety is dependent upon the imposition of a penalty. Abiding by the High Court judgment and removing the penalty imbedded in ROMI conditions would be politically costly, particularly in an election year where polling is unfavourable and concern over a supposed 501 crime wave predominates in the media.

For seven years, successive New Zealand governments have been committed to treating deported citizens as criminal threats, and not vulnerable people in need of support. It didn’t have to be this way. In 2015 the Ministry of Justice presented the Government with several policy options for responding to the “problem” of the 501s. One of these was an “enhanced support service” which would have helped deported people access housing, employment, and social services. The Government opted instead for the ROMI regime: an additional punishment imposed on people who have already been imprisoned, detained, and deported, and who are trying to find their footing in a new country, often without the support of friends or family. We now know that the regime is not only cruel, but also unlawful. While New Zealand has rightly denounced its neighbour’s policies, the High Court’s decision is an overdue acknowledgment that deported people continue to have their rights breached long after they have left Australia.

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