Government to rush through bill to fix law after 501 deportee High Court ruling

The Government is scrambling to amend a law on the rights of deported criminals after the High Court ruled in favour of a 501 deportee.

In December, the High Court ruled special conditions imposed by police on a former drug dealer deported from Australia had breached the New Zealand Bill of Rights Act.

At the time, Judge Cheryl Gwyn also accepted the former prisoner’s claim that the law was a retrospective punishment on the grounds that the new “punishment” in New Zealand took effect after he had served time for his crime.

The former prisoner, known only as “G”, committed his crime in 2012, was convicted in 2014 and was deported to New Zealand in 2019.

The Crown urgently appealed against the decision due to the effect it could have on similar cases and Justice Minister Kiri Allan said the Government would move under urgency as soon as Parliament resumed this year to pass legislation to state categorically that the law was intended to apply retrospectively.

The Crown had also applied for a stay on the 501 case in order to prevent it having to release other deportees from their parole-type obligations and as a consequence of the case taken by “G” against his conditions.

Without a stay, the police and Corrections would have to abandon all parole-type conditions on a group of 501s - those who have arrived since the Returning Offenders (Management and Information) Act (ROMI) took effect in November 2015.

This meant many of the 501s arriving from Australia between now and when Parliament resumed would be released into New Zealand without any conditions attached to their arrival.

The Court of Appeal heard the appeal on the High Court decision by the Crown this month and its decision is expected soon.

Allan said this meant they needed to progress the amendment bill with urgency because the risks of not clarifying the intent of the act could impact on public safety.

“The bill clarifies Parliament’s original intent for the act, to apply retrospectively in respect of all returning offenders, including those who offended before the act came into force,” Allan said.

“This directly responds to a recent High Court decision that determined the act does not apply retrospectively.”

Allan said they were necessary to ensure police and Corrections could manage the risks posed by returning offenders with pre-2015 convictions along with future returning offenders with pre-2015 offending histories.

“They will both enhance the safety of our communities and support the rehabilitation and reintegration of returning offenders into New Zealand,” she said.

Police would be able to collect information from returning offenders to establish their identity and offending history.

In serious cases, the act would allow for parole-like release conditions on returning offenders, to enable their reintegration into the community.

“Parole is a normal part of our criminal justice system and the bill only puts returning offenders in a similar position they would have been in if had they offended in New Zealand,” Allan said.

Over the past decade, thousands of people have been sent to New Zealand under the 501 policy. Photo / Australian Border Force

The Returning Offenders (Management and Information) Amendment Bill was introduced to the House on Tuesday and is expected to be passed through all stages this week.

The Attorney General has raised inconsistencies in the amendment bill with the Bill of Rights Act, in that it appeared inconsistent with the prohibition against retrospective increases in penalty, and the right to natural justice.

The original Returning Offenders (Management and Information) Act was passed under urgency in 2015 with the support of all parliamentary parties at the time, except the Green Party which abstained.

Under the law, the chief executive of Corrections may apply to the District Court for special conditions on a returning offender or returning prisoner.

Returning offenders may be required within six months of their return to New Zealand to provide “identifying particulars” - including photographs and fingerprints - similar to those that may be taken from people in police custody.