The New Zealand government passed on Tuesday the first reading of the Sentencing (Reinstating Three Strikes) Amendment Bill in the parliament. Associate justice minister Nicoke McKEE promised a “more workable” regime that avoids unjust outcomes despite concerns from Ministry of Justice officials that the proposed legislation may be inconsistent with international obligations.

First introduced by the Sentencing and Parole Reform Act 2010, the three strikes law is resurrected by the bill with a few notable changes, including a limitation on the application of the regime to sentences above 24 months, an increased degree of judicial discretion in cases of “manifest injustice” and a 20 percent discount at strike three for an early guilty plea. The bill applies to the same 40 serious violent and sexual offences as the old law, apart from the addition of the new strangulation and suffocation offence.

The 2010 act provided for mandatory sentencing of qualifying repeat offenders without accommodation for judicial discretion. An offender’s first conviction of a qualifying strike offence would result in a first “strike warning”, the second a final strike and upon a third conviction, unless the court considered the order manifestly unjust, an imposition of the maximum sentence without parole.

In a regulatory impact statement on the bill, the Ministry of Justice cautioned that amending current sentencing practices could result in inconsistencies with the Treaty of Waitangi/Te Tiriti o Waitangi — one of New Zealand’s founding constitutional documents — and  New Zealand Bill of Rights Act 1990 which affirms the island nation’s commitment to upholding the International Covenant on Civil and Political Rights. The report highlighted that the prior three strikes regime, repealed in 2022, had caused severely disproportionate sentences but its effectiveness in reducing crimes was empirically doubtful.

Additionally, the report warned that the reintroduction of the three strikes regime would exacerbate the over-representation of the Aboriginal population and young offenders in the criminal justice system.

In 2020, the New Zealand Supreme Court has also considered the compatibility of the three strikes regime with the country’s Bill of Rights Act. The case concerned the third conviction of a qualifying strike offence. Fitzgerald, who suffered from mental illness and substance abuse, was convicted of indecent assault and sentenced to seven years imprisonment after attempting to kiss a passerby on a main street in Wellington, New Zealand’s capital. In its landmark ruling, the court found that the defendant’s sentence breached the right protected under section 9 of the New Zealand Bill of Rights Act 1990 not to be subjected to disproportionately severe punishment under the three strikes law.

The bill will now be referred to the select committee, where any recommended changes to the legislation will be canvassed.