Post by Claudia McHardy. Claudia is Book Review editor for Border Criminologies. She holds an MSc Criminology and Criminal Justice from the University of Oxford. Claudia was joint-winner of the Border Criminologies Masters Dissertation/Thesis Prize for her dissertation, Assuming Risk: New Zealand’s Returning Offenders Act 2015.

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Deportees being met at the airport by NZ police. Source: 1 NEWS.

Background

Recent changes to Australian migration law lowered the bar for criminal deportation and removed the prohibition on the deportation of long-term residents, triggering a surge in the number of people returned to Aotearoa New Zealand (NZ). In response, the NZ government introduced an unusual piece of legislation: the Returning Offenders (Management and Information) (“ROMI”) Act 2015. My dissertation drew together legislation, court cases, and political discourse to examine the ROMI Act as a case of penal innovation. The Act creates a supervision regime for NZ citizens returned following a criminal conviction in an overseas jurisdiction (overwhelmingly Australia). It appears to have no international equivalent and is unique as a legislative example of one country’s border practices directly informing another country’s domestic criminal justice policy. People subject to this cross-border penality experience heightened punishment, weakened protections and prolonged exclusion.

Heightened punishment

In an effort to streamline the removal of non-citizen offenders, the Australian state pursues a ‘prison-to-plane’ policy. The ROMI Act extends this practice across borders, effecting a sort of “prison-to-plane-to-supervision” process. As Stanley (2017) points out, deported New Zealanders now experience a quadruple punishment for their original offence: imprisonment in Australia, immigration detention, deportation, and now ongoing supervision and monitoring in NZ. Breach of a ROMI condition is a criminal offence, so the Act establishes a procedural mechanism through which deportation leads back into the criminal justice system. While ostensibly modelled on parole arrangements for people released from NZ prisons, in practice the supervision regime for so-called “returning offenders” entails a greater level of restriction and curtailment of individual liberties.

Returning offenders are being made subject to more restrictive “special conditions” as a matter of precaution. While conceived of as tools for targeting only the most high-risk individuals, special conditions like electronic monitoring or curfews are imposed on nearly every returnee, despite there being no evidence to suggest that this group presents a particular risk. In fact, Corrections defends the routine application of special conditions on the grounds that it is impossible to know the risk profile of people who committed their offending overseas. The NZ state is embracing a precautionary approach to managing the uncertain risks of returning offenders, making a presumption of dangerousness across the entire population. I propose that this willingness to read danger in the unknown risk profiles of returning offenders is indicative of NZ “importing” the risk logics of the Australian border regime into its own securitisation project. Deported New Zealanders are thus cast as exceptional risks on both sides of the Tasman Sea, exposing them to deeper and prolonged punishment.

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Police take fingerprints of a new arrival at Auckland Airport, 2016. Source: Department of Corrections.
Weakened protections

Inadequate procedural protections compound upon the punitive character of the ROMI regime. There is, for example, no framework for challenging a conviction’s validity. Instead, all overseas convictions are presumed to be properly obtained, creating the potential for miscarriages of justice. Moreover, ROMI orders can be made in respect of a person whose sentence has expired, raising concerns to do with double jeopardy and retroactive penalties. Exacerbating these procedural vulnerabilities is a lack of legal representation: many returning offenders fail to claim legal aid because they are unaware of their eligibility, highlighting the inherent vulnerability of people compelled to navigate an unfamiliar criminal justice system.  

The legislation’s design allows for this inconsistency in treatment between overseas and domestic offenders. While some domestic offenders are subject to parole conditions, these are integrated within the NZ criminal justice system. By contrast, ROMI conditions are imposed through a civil process, where people access fewer procedural protections. I suggest that this inconsistency is made politically palatable by the characterisation of returning New Zealanders as “de facto aliens” whose claim to citizenship and its protections is attenuated by their outsider status. The returnee experiences a legal precarity which resembles, to some extent, that of the non-citizen.

Prolonged exclusion

Having been banished from Australia, the deported New Zealander once again finds herself a risky outsider unworthy of inclusion within the polity. In Australia, her alienage was established by her lack of formal citizenship. In NZ, it is by her social and moral nonbelonging. The legislation draws our attention to an underexplored issue: how the deportee challenges conceptions of citizenship in their receiving country. While formally citizens, returning offenders are discursively constructed as foreigners: the Minister of Justice commented that Australia is ‘deporting people back to NZ who, other than their DNA, are really not New Zealanders’. Meanwhile, NZ’s Prime Minister exhorted Australia to ‘[s]end back Kiwis, genuine Kiwis—do not deport your people, and your problems’. This leaves unanswered the question of who is a “genuine Kiwi” and what the state owes to those who fall outside the definition.

Government passed on the opportunity to create an “enhanced support service” for addressing returnees’ accommodation, employment and healthcare needs. When explaining the rationale behind the proposed support service, the Ministry of Justice noted that many returnees face ‘additional challenges in returning to a country where they have citizenship, but few personal connections’. Supporting (re)integration and rehabilitation would help compensate for the unique vulnerabilities faced by deported people while preventing reoffending in NZ. This would have been a relatively cost-effective policy, and one which could be combined with the more punitive ROMI legislation. I argue that the failure to choose rehabilitation is not simply a matter of the state’s passive neglect. Rather, the exclusionary treatment of these “risky” outsiders performs the symbolic function of reinforcing boundaries of membership within the community and reasserting the strength of the sovereign state.

The decision to adopt a punitive and exclusionary response needs to be contextualised by the stark racial disparity of the returning offender population, 60% of whom are Māori or Pasifika. While this racial disparity is the product of Australian deportation practices, the NZ state chooses to make a presumption of dangerousness across the returnee population and it chooses to respond to returnees as risks to be contained, and not vulnerable people to be supported. These choices are in keeping with the patterns of criminalisation and exclusion already embedded within NZ society, where Māori, who comprise 16% of the general population, make up 51% of the prison population. While much to do with the Act is novel, it is yet another example of the structural interdependencies between race, citizenship and criminal justice which have persisted in this region since colonisation.

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How to cite this blog post (Harvard style) 

Mchardy, C. (2021). New Zealand’s Returning Offenders Act. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/02/new-zealands [date]