Punishment on arrival: New Zealand’s Returning Offenders Act 2015
| Author | Claudia McHardy |
| DOI | http://doi.org/10.1177/1462474521999912 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
Article
Punishment on arrival:
New Zealand’s Returning
Offenders Act 2015
Claudia McHardy
University of Oxford Faculty of Law, UK
Abstract
Australia’s detention-deportation regime is setting the agenda for New Zealand’s
domestic criminal justice system, with implicati ons for criminological understandings
of ‘crimmigration’ and ‘bordered penality’. In response to recent changes in Australian
migration law which have seen an increased number of deportations to Aotearoa
New Zealand, the New Zealand government introduced legislation, the Returning
Offenders (Management and Information) (“ROMI”) Act 2015, which created a mon-
itoring regime for returning New Zealanders convicted of criminal offending in an
overseas jurisdiction. The sentence an individual is subject to in Australia is extended,
both geographically and temporally, creating multiple punishments for this particular
group of offenders. While ostensibly modelled from domestic parole arrangements, in
practice the ROMI regime entails greater restriction while offering less in the way of
legal protection. The differential treatment of returning New Zealanders is sustained
through their discursive construction as both “criminals” and de facto “aliens”. By
treating returnees as threatening outsiders to be contained, rather than vulnerable
people to be supported, the New Zealand state also extends the risk logics underpin-
ning the Australian regime. Although the ROMI Act is novel, the regime conforms to
the racialised patterns of exclusion and criminalisation which have persisted in
Aotearoa New Zealand since colonisation.
Keywords
Australia, bordered penality, citizenship, colonialism, crimmigration, deportation,
membership, New Zealand, race, risk
Corresponding author:
Claudia McHardy, University of Oxford Faculty of Law, St Cross Building, St Cross Road, Oxford OX1 3UL,
UK.
Email: claudia.mchardy@gmail.com
Punishment & Society
!The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/1462474521999912
journals.sagepub.com/home/pun
2022, Vol. 24(4) 622–641
Introduction
On 18 November 2015, days before a plane of deportees was due to land in
Aotearoa New Zealand (NZ), Parliament rushed through legislation establishing
a new monitoring regime for so-called “returning offenders”. One MP described
the eleventh-hour policymaking as ‘a disgrace, when this Government knew last
year, on 14 December, that Australia had changed its laws’ (New Zealand House
of Representatives (NZHR), 2015b). While Australia has a long history of deport-
ing non-citizens on criminal grounds (Nicholls, 2007), recent changes to Australian
law have considerably extended the scope of the practice. Mandatory visa cancel-
lation has been introduced for those who fail a ‘character test’ on account of their
criminal offending or suspected gang involvement. Visa cancellation is triggered by
a 12-month prison sentence, including cumulative sentences. As Grewcock (2014:
128) notes, this ‘exposes relatively minor offenders to deportation’. Drug offences
are the most common reason for visa cancellations under the character test
(Department of Home Affairs, 2019). Following the policy’s introduction, in
December 2014, the number of visa cancellations for reasons of ‘bad character’
increased by 1,400 percent (Billings, 2019). Between January 2015 and March
2020, over 2,000 New Zealanders were deported (New Zealand Police, 2020).
Within this cohort, the majority (60%) are M
aori or Pasifika peoples (New
Zealand Police, 2020).
1
Criminal deportation imposes ‘a far greater punishment than a period of impris-
onment ... Deportation means having to start again in a society which was left
years ago, or sometimes never known’ (Fekete and Webber, 2010: 5). The
Australian authorities regularly deport people who have lived in Australia for
nearly all of their lives and have little or no connection to NZ (Billings, 2019).
The first time Brian, a 70-year-old grandfather, had set foot in NZ in 40 years was
when he was deported in July 2019: ‘I was just so petrified. They just plonk you on
a plane and fire you across the ditch’ (Roy, 2019).
Australia’s deportation policy has been the subject of much critical attention
(Billings, 2019; Grewcock, 2014; Stanley, 2017; Weber and Powell, 2020).
2
This
article’s focus is an unusual piece of legislation a receiving state, NZ, introduced in
response to Australian policy. The Returning Offenders (Management and
Information) (“ROMI”) Act 2015 creates a regime for monitoring offenders
returned following a criminal conviction in an overseas jurisdiction (overwhelm-
ingly Australia). As Stanley (2017) points out, if Australia’s detention-deportation
regime imposes a triple punishment for non-citizens convicted of criminal offend-
ing, then the NZ legislation slathers on yet another punitive layer, creating what
amounts to a quadruple punishment: imprisonment, detention, deportation, and
now ongoing monitoring and supervision in NZ.
Two groups are dealt with by the legislation: “returning offenders” and
“returning prisoners” (a sub-group of returning offenders). The broader category
of returning offender is defined as being any person convicted overseas for conduct
that is imprisonable in NZ. This group is made subject to a regime for collecting
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McHardy
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