Punishment on arrival: New Zealand’s Returning Offenders Act 2015

Abstract

Australia’s detention-deportation regime is setting the agenda for New Zealand’s domestic criminal justice system, with implications 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 monitoring 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 underpinning 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.

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 deporting non-citizens on criminal grounds (Nicholls, 2007), recent changes to Australian law have considerably extended the scope of the practice. Mandatory visa cancellation 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 Māori or Pasifika peoples (New Zealand Police, 2020). ¹

Criminal deportation imposes ‘a far greater punishment than a period of imprisonment … 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 (overwhelmingly Australia). As Stanley (2017) points out, if Australia’s detention-deportation regime imposes a triple punishment for non-citizens convicted of criminal offending, 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 information, such as photographs, biographical details and fingerprints. A returning prisoner is a person the NZ police determine to have been sentenced overseas to more than one year in prison for conduct that would be an imprisonable offence in NZ and who is returning within 6 months of release from overseas custody. ³ All returning prisoners are automatically subject to standard release conditions for a period dependent on their length of imprisonment in the overseas jurisdiction, with a minimum duration of six months and a maximum of five years. The conditions mirror those applied to domestic parolees: for example, giving notice of an address change and allowing biometric information to be collected. The returning prisoner may also be made subject to special conditions, which entail a greater level of restriction.

This article represents an early effort to understand the logic, substance and consequences of this peculiar regime. This is undertaken via examination of official attitudes, as communicated through political discourse, legislation, policy documents and case law. I do not set out the perspectives of people entangled within the ROMI regime. That is beyond the scope of this article, but their voices need to be recorded: no government review has sought input from those subject to ROMI powers, nor has any research documented the experiences of deportees once they have arrived in NZ.

After situating the ROMI regime within the broader literature on deportation and the intersections between borders and penality, my analysis divides into two streams. First, I consider due process concerns raised by the design and implementation of the ROMI Act. Having set out to mimic domestic parole arrangements, the Act is being implemented in a way that is more restrictive than the regime for domestic offenders while offering a weaker standard of legal protection. The legislation permits an unjustifiable infringement on individual liberties; by circumventing due process protections, the state is free to impose special conditions on all returning prisoners as a matter of precaution. In doing so, a presumption of dangerousness is made across the entire population. This observation informs my discussion’s second stream: the normative question of why the government would pursue a punitive, as opposed to supportive, response. I submit that the receiving state and deporting state’s motivations are similar: sovereign power’s reassertion and the reinforcement of membership boundaries within the community.

The literature

The ROMI Act has mostly evaded scholarly attention (but see Stanley, 2017). This is surprising, not least because there appears to be no other legislation quite like it. But the Act is not merely an aberrant; we can locate it within a wider trend toward mobilising citizenship as a tool for governing unwanted and “risky” outsiders (Bosworth and Guild, 2008; Zedner, 2010). While the exclusion of ‘undesirable’ people and surplus populations ‘recurs throughout history’ (Bhui, 2018: 198), under conditions of globalisation, deepening and multiplying cross-border flows of people are being met with novel practices of criminalisation, detention and deportation which corrode the boundaries between criminal and immigration law (Aas, 2013). The concept of “crimmigration” captures the melding of these traditionally distinct fields of law (Stumpf, 2006). They converge as strategies of selective exclusion, as well as expressions of state sovereignty.

The intertwining of criminal and immigration law is facilitated by their common function as gatekeepers of membership in society. As Stumpf (2006: 380) explains, ‘[b]oth create insiders and outsiders. Both are designed to create distinct categories of people—innocent versus guilty, admitted versus excluded’. The exclusionary quality of these two areas of law flows from their grounding in membership theory: the idea that individual rights and privileges should be limited ‘to the members of a social contract between the government and the people’ (Stumpf, 2006: 377). A person’s access to the full protections of citizenship is thus made contingent upon ‘the viewpoint of the decisionmaker as to whether an individual is part of the community’ (2006: 379). Not only are such determinations ‘inherently flexible’ (2006: 379), but they also conform to highly racialised patterns of exclusion, as well as being influenced by class and gender (De Genova, 2018; Parmar, 2018; Zedner, 2010).

As citizenship has been steadily redefined as a privilege to be earned, people’s membership within the polity has grown more precarious and conditional (Zedner, 2010). The returning New Zealander experiences this first-hand, and on both sides of the Tasman Sea. Having been exiled from Australia, she once again finds herself cast in the role of “criminal alien”, for whom ‘the otherness of the stranger and the otherness of the deviant are collapsed’ (Melossi, 2003: 376). In Australia, her alienage was established by reference to her lack of formal citizenship; in NZ, it is by reference to her social and moral nonbelonging. Denied certain ‘badges of membership’ in society (Stumpf, 2006: 378), she also finds herself an easy target for a populist penal politics advocating public protection and rebalancing of criminal law in favour of the “law-abiding majority” (Zedner, 2010). As Garland (2001) documents in the field of crime control, when states lack capacity to provide genuine security, or when sovereign power is under threat, penal maximisation can restage political authority. Like domestic “law and order” tactics, ‘defending the border and protecting the nation from contamination by foreign elements also carries enormous political and symbolic capital’ (Aas, 2007: 292).

In her article on the detention-deportation of NZ citizens from Australia, Stanley (2017: 520) notes that ‘within a context of cross-border securitization, the receiving state of NZ has also sustained a performance of crimmigration’. She identifies an element of ‘contagion’ in the NZ government’s response, drawing our attention to a gap in the literature regarding the spread of crimmigration strategies across borders. This article follows and extends Stanley’s argument in order to assess the ROMI Act as a symptom of the ‘contagion of crimmigration’ (2017: 519). In doing so it draws upon ‘the growing body of scholarship on how the global is situated in and transforming everyday penal practices in national and local settings’ (Bosworth et al., 2018: 35). Of particular relevance to this discussion is the phenomenon Aas (2014) terms ‘bordered penality’. In contrast to normal justice, which ‘is imagined and practiced territorially, as a domestic relation among fellow citizens’, bordered penality traverses the realms of the domestic and the international (2014: 522). Analysis of the ROMI regime reveals a new layer to criminological understandings of bordered penality, as one nation’s border logics are transplanted into another nation’s domestic criminal justice system. Those subject to this cross-border crimmigration infrastructure experience heightened punishment, weakened protections and prolonged exclusion.

Due process concerns

NZ policymakers hoped to legitimise ROMI orders by framing their infringement on individual liberty as equivalent to parole conditions, but overseas offenders experience a greater loss of liberty and may access fewer criminal justice protections than domestic offenders. Jacqui Dean MP portrayed the ROMI mechanism as being analogous to the existing system; there were ‘no extra conditions being promulgated’—it was simply ‘expanding the net’ to include otherwise unsupervised offenders (NZHR, 2015b). For this reason, Dean was ‘a little sceptical about the objections … around the fact that this bill is passing through all stages under urgency.’ Implicit here is the assumption that the new regime is acceptable because it mimics established arrangements for domestic offenders. But in endeavouring to achieve consistency in oversight, the ROMI Act ‘creates an inconsistency in treatment between NZ offenders and overseas offenders’ (NZLS, 2018: 3).

Some people released from NZ prisons are subject to parole conditions, but these are integrated within the NZ justice system. By contrast, the ROMI Act imposes conditions through a civil process. Because the regime circumvents the criminal process, the returnee is afforded a weaker standard of legal protection and is vulnerable to harsher treatment. Moreover, punitive measures are imposed as an add-on to the criminal process an individual is subject to prior to their return, so the Act might contravene section 26 of the NZ Bill of Rights Act, which relates to retroactive penalties and double jeopardy. As a case of penal innovation, the Act speaks to Stumpf’s (2006) observation that crimmigration law transforms the substantive breadth and form of punishment. This transformation is being matched by an erosion of the procedural safeguards that were formerly fundamental to punishment’s imposition, creating ‘procedural stratifications within the criminal justice system’ (Stumpf, 2013: 65).

Retroactive penalties

Gledhill (2016: 29) identifies a problem of retrospectivity in the fact that a ROMI order can be triggered by an overseas sentence which has ‘completely expired’, including any parole period. This, he argues, ‘amounts to an extension of the penalty imposed in Australia on a retrospective basis’ (2016: 29). Gledhill’s observation is especially pertinent in light of the prolonged time many New Zealanders spend prior to deportation in Australian immigration detention (Stanley, 2017), where the average stay is 478 days (Australian Border Force, 2017). ROMI conditions are automatically imposed on any returning offender released within the last six months from custody in a prison, or an immigration detention facility following release from prison (s 17). Accordingly, an offender who spends six months outside of prison custody before returning to NZ would not be subject to release conditions—unless those six months were spent in a detention facility. The New Zealand Law Society (NZLS, 2018: 3) notes:

if someone received a 15-month sentence in Australia, served half of that and was then held in immigration detention for eight months … he or she would still be a returning prisoner and subject to a further six-month period of supervision in New Zealand.

The initial injustice of immigration detention is prolonged by the ROMI regime; not only does one lose their liberties for longer, but they will be monitored for longer as a consequence.

Double jeopardy

The Law Society (NZLS, 2018: 3) argues that ROMI orders are also problematic because they impose an additional penalty for the same conduct, and this ‘may have an element of double jeopardy’. The double jeopardy issue is particularly relevant to the use of special conditions. On top of standard conditions, a returning prisoner may be made subject to court-imposed special conditions where there is believed to be a particular risk or need. Prior to an individual’s arrival, and where it is deemed ‘immediately necessary’, a court may also impose interim special conditions (s 27 at para 1).

While not limited by the Act, special conditions can include a requirement for residence, association restrictions, electronic monitoring and adherence to curfews (ss 26 and 27). The Attorney-General’s (2015: 3) report on the Bill acknowledged the potential for special conditions to involve a ‘significant limitation on the freedoms of movement and residence and association’ but concluded that this did not constitute double jeopardy. The conditions, it was argued, do not have a punitive character: rather than punish, their main purpose is to reduce the risk of reoffending.

Punitive outcomes

There are two problems with the Attorney-General's assessment. Firstly, while rationalised by the anticipatory logic of prevention and security, and not the retrospective logic of punishment, the regime may nonetheless be punitive in effect. Criminal consequences can follow ROMI orders: breach of condition is a criminal offence, punishable by up to one years’ imprisonment (s 31), and failing to comply with the directions of a police officer who is taking information on the basis that someone is a returning offender carries a sentence of 6 months’ imprisonment (s 13). It is problematic, considering the potential for a ROMI order to result in a prison sentence, that special conditions are attached to only a civil standard of proof and neither a civil nor criminal standard is attached to the determination that a person is a returning prisoner (and automatically subject to standard conditions). ⁴

Crimmigration law, by creating ‘a procedural steppingstone’ between the criminal justice system and deportation, multiplies the sanctions attached to a criminal conviction (Stumpf, 2013: 68). The ROMI Act introduces a new procedural steppingstone—one which leads from deportation back into the criminal justice system, where additional burdens await the deportee. Irrespective of any criminal outcome, the burdens imposed by ROMI orders involve a deprivation of liberty which ‘is inevitably accompanied by pain’, making them ‘punitive in terms of subjective experience’ (Ginneken, 2019: 23, 24). The orders recall Zedner’s (2016: 8) description of ‘quasi-punitive power’ which blurs the lines between formal and informal penalties. Although ‘not formally designated as punishment’, these coercive measures are experienced as no less burdensome by those subject to them (2016: 8). As one returning offender explains: ‘I’m square with the house and then I come here, and I get put on a 12-month probation. I feel like that in itself is another sentence’ (Māori Television, 2018 at 27:30).

Barker (2017: 445) locates the exercise of penal power at the border within ‘a whole host of legal practices and hybrids that take away liberties and inflict pain, functioning as punishment in all but name’. Like conventional punishments, ROMI orders impose a sanction which signals moral wrongdoing and reduces a person’s standing in the community. As Zedner (2016: 4) observes, however, ‘[s]tates have been quick to claim that if a coercive measure … is for prevention or regulation or administrative convenience it is not, by definition, punishment.’ The privileging of purpose over effect, she argues, ‘is often nothing less than a cynical subversion of the criminal process and its human rights protections.’ By evading criminal justice principles like due process and equal treatment through ‘the technical language of administrative law’ (Barker, 2017: 451), bordered forms of punishment encourage ‘rougher, tougher, harsher treatment toward perceived others’ (2017: 453).

Implementation of the Act

The second problem with the Attorney-General’s determination of no double jeopardy relates to the way the Act is operating in practice. It is fairly clear that when the Bill was drafted, legislators conceived of special conditions as tools for targeting only the most high-risk individuals; the Minister of Corrections described special conditions as necessary ‘to meet the need for those particularly high-risk individuals who do require extra supervision’ (NZHR, 2015b, emphasis added). The Ministry of Justice’s (MoJ, 2015: 13) regulatory impact statement, which informed the policy decisions that led to the ROMI Bill, estimated that an application for a discretionary order like a special condition would be made for around half of all returning prisoners, with the court accepting 90 percent of applications. This reflected the belief that discretionary powers should be ‘targeted toward those who pose a clear risk to public safety’ (2015: 13, emphasis added).

The Attorney-General’s determination was conditional upon ‘the increased risk threshold contemplated by the legislation’ (NZLS, 2018: 4). But in the first 18 months of the regime, Corrections applied for interim and final special conditions in almost all cases (MoJ, 2017: 11). Contrary to the expectation that the court would curb the immoderate use of ROMI powers, on only four occasions did the court decline to impose an interim condition as a final condition (MoJ, 2017: 11). As a result, the Law Society (NZLS, 2018: 5) submit that the implementation of the ROMI regime ‘is far more restrictive than was intended and outside the Attorney-General’s assessment of what would be a justified limitation on fundamental rights and freedoms.’

It is striking, given the assurances that the use of special conditions would be tempered by a high threshold of risk, that the stated rationale for Corrections routinely applying for special conditions was ‘the unknown risk profile of these offenders’ (MoJ, 2017: 11). ⁵ This makes plain that the use of special conditions is not contingent on individualised assessments of risk, as was purportedly intended. Rather, the absence of a risk profile suffices in demonstrating the need for greater restrictions. In lieu of actuarial risk assessment, Corrections appears to be embracing a precautionary approach to managing the uncertain risks of returning offenders. Presented with ‘unknown, unruly and risky bodies’ (Hall, 2010: 890), a presumption of dangerousness is made across the entire population. As a consequence, returnees are subject to a more restrictive supervision regime than offenders released from NZ prisons.

As it is inherently unlikely that every returning offender is ‘particularly high-risk’, some people’s liberty will inevitably be unjustly infringed upon as a consequence of the default application of special conditions. But by relocating ‘the burden of the risk of error away from potential future victims and onto offenders’ (Ramsay, 2013: 204), the regime is remaining faithful to the imperative of public protection. Indeed, the Justice Committee’s 2019 review found the current use of special conditions to be aligned with the aims and principles of the Act. Having acknowledged that Corrections applies for special conditions ‘in nearly all cases’ (2019: 5), the Committee nonetheless concluded ‘that the operation of special conditions is satisfactory’ and the regime ‘is generally working as intended’ (2019: 6, 7).

Other procedural violations

The regime is hamstrung by inadequate legal representation: while returnees are eligible for legal aid, they often do not take it up (MoJ, 2017). As the Justice Committee (2019: 6) explains, some offenders may be ‘unaware of their eligibility’. Lack of legal representation reflects the inherent vulnerability of people thrust into an unfamiliar criminal justice system, and it also exacerbates the legal vulnerabilities already present in the regime. Access to legal aid is critical, should a person wish to challenge a determination that they are a returning offender/prisoner, or when there are court hearings about conditions. Whereas domestic offenders may apply to vary their release conditions through the Parole Board, there are no such provisions under the ROMI Act. Instead, returnees are required to make a review through the court—and their ability to do so is dependent on their access to legal aid. If they wish to challenge a determination, they must do so within just 15 days of being served their determination notice. Given the lack of legal representation, and the reality that these women and men will have only just arrived in NZ and may have more urgent concerns, like finding a place to sleep, this time frame creates a significant practical barrier to justice—and it adds to the punitive nature of the ROMI regime. As Stumpf (2013) argues, the informality of crimmigration powers inflicts unique pains like heightened uncertainty and weakened procedural protections, so the very process becomes punishment.

Normative concerns

Having critiqued the ROMI regime’s design and implementation with a focus on procedural concerns, I now turn to the normative concerns raised by this legal regime. The following discussion addresses the question of why the government would choose to pursue a policy which amounts to a further penalty, rather than one focused on providing support for returning New Zealanders. This question is significant: the punitive character of the regime makes it incompatible with the principles of NZ’s founding document, Te Tiriti o Waitangi (“the Treaty”), and the Act may be vulnerable to legal challenge as a consequence. More specifically, because a disproportionate number of Māori people are subject to these punitive measures, the Crown is failing its duty to actively protect the interests of Māori. ⁶

The Waitangi Tribunal (2017), established under the Treaty of Waitangi Act 1975, is tasked with making recommendations on ‘the application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty’ (p. 25). In a 2017 report on disproportionate reoffending rates among Māori, the Tribunal made a number of recommendations which are pertinent to the ROMI Act. The Tribunal determined that where Māori are significantly overrepresented in the corrections system, a generalised approach to managing risk of reoffending would be incompatible with the principle of active protection (2017: 57). Under these circumstances, Treaty obligations require government to instead adopt a supportive approach which pursues ‘the successful rehabilitation and reintegration of offenders’ (2017: 30).

The ROMI regime’s punitive character and its policy of assuming risk across the returnee population, coupled with a lack of investment in the rehabilitation or (re)integration of returnees, underpins a strong case for the Act’s violation of the principle of active protection. Moreover, the Act appears also to flout the principle of partnership, which is intertwined with the principle of active protection. As the Tribunal explains: ‘for the Crown to protect actively the interests of Māori, it must adequately inform itself of the nature and extent of Māori rights and interests at issue. It must do this through meaningful consultation with Māori’ (2017: 82).

As the ROMI Bill passed through parliament under urgency, no meaningful consultation with Māori people and communities took place, even though the government almost certainly was aware that Māori would be disproportionately impacted by the legislation, which only a cursory glance at Australian deportation statistics demonstrates.

Consistent with the pattern of Australian deportations to NZ, the ROMI regime exhibits a stark racial disparity: 37 percent of returnees are Māori, 26 percent are Pasifika, and 20 percent are European (Department of Corrections, 2017: 58). These figures mirror the racial composition of the NZ carceral state: over half of the prison population are Māori, 30 percent are European, and 12 percent are Pasifika (Department of Corrections, 2020b). These are staggering disparities given that Europeans comprise 70 percent of NZ’s general population, while Māori are 16 percent and Pasifika peoples are 8 percent (Statistics New Zealand, 2018). The persistent overrepresentation of Māori and Pasifika peoples in NZ’s criminal justice statistics (Tunufa’I, 2017; Webb, 2009) has been attributed to a history of racialised policing and imprisonment practices rooted in Aotearoa’s experience of colonialization (Cunneen and Tauri, 2019; Webb, 2017).

The ROMI regime is another manifestation of the structural interdependencies between race, criminal justice and colonial power which have existed at the heart of this nation since its conception. Naturally, the counterargument would be that the regime’s racial disparity is a product of Australian policy—not the bias of the NZ state. While this may be true, NZ chooses to make a presumption of dangerousness across the returnee population and, as I will now demonstrate, it chooses to respond to returning New Zealanders as risks to be contained and controlled. It would be disingenuous to deny the significance of these choices in light of the fact that the majority of returnees are non-white.

Choosing punishment

Government forwent the option to compensate for returnees’ unique vulnerabilities in favour of a supervision regime more punitive than the one for NZ offenders. Cabinet was presented with four possible approaches for responding to the “problem” of returning offenders (MoJ, 2015). One option was a register, similar to those in place for child sex offenders. There were two options for supervision regimes, one mandatory and the other discretionary—the ROMI Act is a combination of these. And finally, an ‘enhanced support service’ dedicated to providing returnees ‘support for reintegration, as opposed to the arguably more punitive options which balance supervision and support’ (MoJ, 2015: 7).

The enhanced support service was to be modelled on an existing refugee resettlement programme which equips recently arrived refugees with the ‘information needed to … live in New Zealand’, as well as administering ‘physical and mental health checks to assess their settlement needs’ (MoJ, 2015: 6). Returning offenders, the Ministry (2015: 6) noted, may ‘face similar challenges to those of refugees … namely lack of support structure and access to state services.’ Accordingly, returnees would be offered help with ‘accommodation, employment and general living skills’ (2015: 7). The emphasis on (re)integration was an acknowledgement of the ‘additional challenges’ deported New Zealanders face ‘in returning to a country where they have citizenship, but few personal connections’ (2015: 7).

It is conceivable that the goal of public protection would have been promoted by supporting (re)integration. As Kelvin Davis MP argued:

if we do not have the support networks in place for these people when they arrive here, they are going to be set up to fail … they may have to resort to crime to get by, which is going to create new victims. (NZHR, 2015b)

With this in mind, the government might have elected for enhanced support services to run alongside the more punitive controls. The Ministry of Justice (2015: 16) had suggested that support services ‘be paired with whichever option is ultimately preferred’ as ‘the additional support for reintegration will support the objectives of the policy.’ This relatively cost-effective option ⁷ would not have required any legislative changes to effect. Importantly, it would also have been more consistent with the principle of active protection under the Treaty.

Constructing the “risky” outsider

Why would the government violate Treaty principles to pursue a more punitive and exclusionary policy when a less coercive, and potentially more effective option was available? The answer to this, I suggest, lies in the construction of returning New Zealanders as “risky” outsiders. Australia not only relocates people across borders—it also exports the risk rationalities those people are seen to embody. As Weber and Pickering (2013: 111) suggest, deportation is ‘an essentially transnational strategy for the exporting of risk’. The punitive and exclusionary quality of Australian migration policy sustains, and is sustained by, ‘exceptional categories of risk’ (Grewcock, 2014: 133). In normal justice, an offender’s risk of reoffending is a source of anxiety for the state, but it is something to be managed through strategies of rehabilitation and reintegration into the community (Aas, 2014). This norm is radically overturned by the bordered penality directed against non-citizens by the Australian state; the riskiness of the non-citizen offender is magnified to ‘an irremediable and illegitimate character flaw justifying permanent expulsion from the community’ (Grewcock, 2014: 133). Having established a particular group of offenders to be exceptional risks, Australia proceeds to absolve itself of responsibility for them by ‘exporting’ their risk (Grewcock, 2014; Weber and Pickering, 2013).

By treating returnees as risks to be contained, and not vulnerable people to be supported and (re)integrated, the NZ state gives credence to the risk logics animating the Australian border regime. But NZ is no passive recipient of risk from Australia: risk is not a tangible good, it can only be ‘exported’ if the receiving state imagines it to be real. That is to say, while NZ cannot stop the deportation of its citizens, it chooses to assume their risk from Australia. This choice informs the precautionary approach taken by Corrections when determining the use of special conditions, and it shapes the representation of returning New Zealanders within political discourse.

Prime Minister Key accused the opposition of ‘backing rapists’ for their concerns over the welfare of NZ nationals held in Australian detention centres. He went on to tell an opposition MP, ‘if you want to put yourself on the side of sex offenders, go ahead … but we’ll defend New Zealanders’ (New Zealand Herald, 2015). Key’s histrionics drew on the wider culture of fear which surrounds the “criminal alien”—a figure deemed risky by virtue of their alien status and ‘the illegitimacy of their presence’ within the community (Grewcock, 2014: 134). While formally citizens, returnees are discursively constructed as de facto foreigners; the Minister of Justice commented that Australia is ‘deporting people back to New Zealand who, other than their DNA, are really not New Zealanders’ (NZHR, 2015c).

Hudson (2006: 232) identifies two figures on the borders ‘of our geographical, political, moral or cognitive communities’: the “alien” and the “monster”. The monster is dangerous because he transgresses our moral standards. The alien, meanwhile, is dangerous because she is unclassified: ‘[u]nlike monsters, the alien is a figure we have not yet judged’ (2006: 239). The returning offender embodies simultaneously the threat of the monster and of the alien. Corrections knows enough to classify him as a risk—as a monster—but they know too little about that risk to treat him as anything but alien. Such uncertainty is intolerable to a risk-averse penal culture intent on identifying and classifying offenders through actuarial knowledge of risk. Hence, the ‘unknown risk profile of these offenders’ serves to reaffirm their presumed dangerousness, and this creates the rationale for their more punitive and illiberal treatment.

As well as embracing Australia’s ‘exceptional categories of risk’, the NZ state appears to have adopted its neighbour’s reluctance to accept responsibility for that risk. According to Phil Goff MP, Australia is ‘dumping’ its offenders in NZ (NZHR, 2015c). He protested that if deportees ‘are shaped by Australia, why is it our problem?’ More recently, Prime Minister Ardern has implored Australia to stop the deportation of its long-term residents, noting that many deportees ‘[w]ere too young to become criminals on our watch … We will own our people. We ask that Australia stop exporting theirs’ (Moir, 2020). The government’s failure to invest in the rehabilitation or (re)integration of returnees might reflect a belief that NZ owes little to offenders whose criminality it does not consider itself responsible for. But we are witnessing more than the state’s passive neglect; the exclusionary treatment of these “risky” outsiders performs the symbolic function of reinforcing the community’s membership boundaries.

As an individual is shuffled between the Australian and NZ regimes, we witness her transformation from “foreign offender” to “overseas offender”. Her citizenship status changes, but her criminality and the risk she is deemed to pose continue to be qualified by reference to her alien status. In Australia, she was alien by virtue of her lack of citizenship; in NZ, she is alien because she falls outside the social and moral boundaries of membership. Bosworth and Guild (2008) propose that deportation has a constitutive role in helping define an ideal of citizenship. Likewise, the construction of the deported New Zealander as “criminal alien” confirms his social and moral alienage—and this, in turn, reaffirms the boundaries of belonging within the NZ polity. Investing in returnee’s (re)integration would undermine the symbolic gains of punitiveness by communicating the message that these dangerous outsiders really are New Zealanders.

On account of their de facto alienage, and the particular threat they are thought to pose, returnees are made subject to an ‘abnormal justice’—a more exclusionary regime, with a different standard of rights and procedural norms (Aas, 2014). The abnormal justice of the ROMI regime has an antecedent in Australian border policy. Zedner (2010: 381) demonstrates that ‘[t]he logic and language of immigration policy as applied to “noncitizens” is mirrored in the policing and criminalization of “irregular citizens” within the body politic.’ This dynamic is playing out across borders: the governing of non-citizens’ conduct through Australia’s ‘character test’ is mirrored in the rendering of returnees’ access to full citizenship in NZ conditional upon their compliance with the state-determined norms of good behaviour set out in ROMI orders.

As well as extending the punishment a person is subject to in Australia, the ROMI regime may prolong their stigmatisation and marginalisation by: defining the “problem” of returning New Zealanders in terms of risk of reoffending (and not rehabilitation); calling into question returnees’ membership in NZ society; and undermining their economic and social (re)integration through the imposition of burdensome social controls. Through their research into the experiences of deported Dominicans, Brotherton and Barrios (2009: 43) identify stigma as ‘probably the most difficult social and psychological issue confronting deportees’. Deportation, Weber and Pickering (2013: 120) note, ‘inevitably has transnational effects, which can include alienation from both societies.’ The ROMI regime testifies to the propensity for bordered penality to produce, through ‘marginalization and categorization’, transnationalised ‘others’ (Brotherton and Barrios, 2009: 31). These are the ‘bulimic subject/objects’ of late capitalist society, judged unworthy of inclusion within the polity (Brotherton and Barrios, 2013: 202).

An awareness of precisely who is being excluded by these governance strategies unmasks the racialised constructions of citizenship which animate and structure cross-border penality, and ‘make[s] visible global dimensions of penal power and its colonial history and reiterations’ (Bosworth et al., 2018: 43). Like colonial power, bordered forms of penality reproduce ideologies of exclusion across borders (Bhui, 2016; Bosworth, 2011), with deported peoples again cast as ‘neo-colonial subjects’ (Brotherton and Barrios, 2013: 203). In the white settler colonies of Australia and NZ, migration policy and criminal justice have always been tools for enforcing racialised constructions of citizenship (Blagg, 2019; Cunneen and Tauri, 2019). It is against the historical backdrop of the infamous White Australia migration policy, ⁸ which ended only in 1973, that visa cancellation powers have been used disproportionally against Māori and Pasifika peoples (Grewcock, 2014). Australia’s detention-deportation regime articulates a politics of citizenship intertwined with, as well as disguising, anti-Polynesian racism rooted in colonial ideology.

Along with determining who is targeted by the Australian border regime, race structures how the receiving state responds to deportees. NZ’s application of Australian risk logics within its own securitisation campaign owes to the striking resemblance they bear to patterns of criminalisation and exclusion already embedded within NZ society (Brittain and Tuffin, 2017; Cunneen and Tauri, 2019). Racial bias exists at all levels of the NZ criminal justice system, including the courts and policing (Latu and Lucas, 2008; Webb, 2009). We can hypothesise that the ROMI regime has racially discriminatory outcomes beyond the initial disparity of who is being deported from Australia. It is a real possibility that racialised women and men are being made subject to tighter controls on their behaviour due to the discriminatory application and enforcement of ROMI conditions. No research has looked at how the regime intersects with race (nor any other marker of difference, like gender). This is an area for future study. Given the entrenched racisms of NZ’s criminal justice system, it is reasonable to speculate as to whether the government’s response would have been less punitive, were the returning offender population not majority Māori and Pasifika peoples.

We can also expect race to have an influence on how a person subjectively experiences the ROMI regime. As a consequence of their marginalisation, Māori and Pasifika New Zealanders will confront forms of political, social and economic exclusion in NZ that are additional to those created by the ROMI regime. Permanently excluded from Australian society, deportees racialised as non-white will also encounter a lasting barrier to inclusion within the NZ polity. For Māori—the tangata whenua (“people of the land”)—this exclusion has a unique dimension. Many Māori relocated to Australia because their communities have been economically crippled by successive NZ governments (Hamer, 2012). Not only are they shunted out of Aotearoa—when they return to their indigenous land, they are disowned, criminalised and disciplined.

Crimmigration contagion

Australia utilises a ‘prison-to-plane’ policy which separates non-citizen offenders from the community following release and prior to removal (Billings, 2019). The ROMI regime extends Australia’s crimmigration infrastructure across borders, effecting a sort of “prison-to-plane-to-supervision” process. This is characteristic of what Stanley (2017) describes as the ‘contagion of crimmigration’. Unlike ordinary crimmigration, which is directed against non-citizens, ⁹ ROMI powers target those with formal citizenship. As already suggested, however, the (social) citizenship of the returning offender is in doubt; as Denis O’Rourke MP observed, ‘we have to accept back here in New Zealand what are, essentially, in many cases, not really Kiwis’ (NZHR, 2015b). Being directed against the state’s own citizens, the ROMI Act presents a unique example of crimmigration powers undermining the very notions of citizenship that they are, in other contexts, seen to uphold (Bosworth and Guild, 2008).

Although preoccupied by “risky” outsiders, the ROMI regime cannot be understood as merely risk management—it is also a compensatory show of sovereign strength when NZ’s sovereignty is most compromised. Through the act of deportation, Australia exercises its sovereign right to exclude non-citizens from its territory, thereby rearticulating the territorial ideal of who belongs within the Australian polity. Cornelisse (2010: 101) characterises deportation as a ‘litmus test’ for territoriality, the ideology linking ‘political power with clearly demarcated territory’. Not only does deportation reassert sovereign power; it also reaffirms the myth of the modern nation state: ‘distinct populations belong to distinct states’ (2010: 103).

The consequence of Australia’s performance of territoriality is the subversion of NZ’s own territorial ideal. NZ’s inability to prevent de facto aliens from entering its territory betrays the ‘limits of the sovereign state’ in a similar fashion as the bona fide non-citizen who crosses the border without permission (Bosworth, 2008). Much like how deportation has the trappings of ‘hyper-sovereignty’ but is really ‘compensating for its loss’ (Bosworth et al., 2018: 45), NZ’s punitive regime for managing returnees betrays a loss of sovereign authority over the border. That the regime has a distinctly punitive and exclusionary quality is testament to the particular appeal of the appearance of control for policymakers operating at the intersection between borders and crime. As noted, the failure to address returnee’s lack of accommodation, employment or support network is likely to undermine the goal of public protection. Bosworth (2008: 211, 210) reminds us, however, that measures taken to control crime or defend the border ‘are dominated by their symbolic effect’ and not their ‘actual utility and success’.

If punitiveness against ordinary offenders is a symbol of sovereign power (Garland, 2001), then punitiveness against the returning offender—the “criminal alien” in all but legal status—is even more so. When applied against this category of offender, penality’s expressive function gains twice the potency: the state positions itself as protector against domestic crime threats and dangerous foreign elements. The Minister of Corrections spoke of weighing up ‘offenders’ rights versus public safety’ before announcing that he ‘will always come down in support of public security and public safety’ (NZHR, 2015b). Security is articulated as a question of the risk returning offenders pose to NZ. The risks these women and men face during the detention-deportation process, and the ongoing risks they experience once they have arrived in NZ, are rarely addressed.

Conclusion

As the NZ state endeavours to control “risky” outsiders by rendering their citizenship conditional upon adherence to norms of good behaviour, we witness the extension of Australian governance logics and the further marginalisation of an already vulnerable population. The ROMI Act is yet another example of ‘the flexibility of punishment and how easily it is unhinged from the state and its territory’ (Bosworth et al., 2018: 40). But we are witnessing more than simply one penal state’s expansion across borders; NZ has contrived its own forms of criminality and modes of criminalisation. The Act reveals a novel dimension for our understandings of crimmigration and bordered penality, as the ‘intricate connections between citizenship, penal power and social exclusion’ (Bosworth et al., 2018: 46) which structure the Australian deportation regime are setting the agenda for NZ’s domestic criminal justice system, with implications for NZ citizens that are not only discursive, but legal. This dynamic evokes the long and troubled histories of white settler colonialism in Australia and Aotearoa NZ, and lays bare the interconnections between crimmigration, citizenship and race.

This article has been only a preliminary examination of the ROMI legislation and there remains significant ground for future research to traverse. To better grasp the logic, substance and consequences of NZ’s policy, future research might look to those directly involved: policymakers, government officials and, most importantly, returning New Zealanders. Occupying the liminal spaces between citizen and non-citizen, the foreign and the domestic, the returning New Zealander gains a unique insight into the meaning of membership and belonging in a bordered world.