Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill

JACINDA ARDERN (Labour) Link to this

I have a lot to say on Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I think Part 2 demonstrates the far-reaching effect of an issue that has been the source of quite a lot of discussion throughout the debate. That issue is the extension to capture 12 and 13-year-olds in the Act, because that crosses over into the Criminal Investigations (Bodily Samples) Act, which we find amended in Part 2, and it has some impact on that Act. Those on the Justice and Electoral Committee will know that we have only recently made significant changes to the Criminal Investigations (Bodily Samples) Act. The way that children and young people are captured in the Act was the source of quite a lot of discussion. I want to touch on that in my contribution. As Chester Borrows, a member of the Social Services Committee, has pointed out, it was his view that the provisions around 12 and 13-year-olds being able to go through the Youth Court were essentially a matter of filtering, and a matter of expediency. But I think this part points out that the provisions make much more of an impact than that.

Part 2 cross-references section 8(1A) of the Criminal Investigations (Bodily Samples) Act 1995. I want to quickly just reflect on that section, which reads: “However, a suspect who is a child or was a child at the time an offence in relation to which he or she may not be lawfully prosecuted (being an indictable offence other than murder or manslaughter) was committed, may consent to the taking of a buccal sample as a result of a Part 2A request.” What we see there is that there are elements of compulsion available to police for the taking of buccal samples for offences such as murder and manslaughter, because we acknowledge that as it stands the 12 and 13-year-olds charged with those offences in our system are already able to be taken through a higher level of court. That section essentially says that for everything else compulsion does not apply; it is voluntary.

Then we come to Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I do not recall there being great lengths of discussion in the select committee about this part, but I want to talk about what is implied by this part. If we look at it we see that replacement clause 41(1A) of the bill says that “However a suspect may, in relation to an indictable offence, consent to the taking of a buccal sample as a result of a Part 2A request if the subject is a child, or was a child, at the time the offence is alleged to have been committed, and cannot lawfully be prosecuted in relation to that offence, because it is not an offence of any of the following kinds:”. Before, in section 8(1A) of the Criminal Investigations (Bodily Samples) Act, we had just the offences of murder or manslaughter. Now, we have an indictable offence as well. Also, going on, are two more criteria, in clause 41(1A)(i) and (ii) of the bill: “that is alleged to have been committed when the suspect was aged 12 or 13 years; and for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:”. I want to seek some clarity from the Minister for Social Development and Employment, Paula Bennett, on that clause. I accept that I may have misinterpreted it here, but I do not believe I have. Prior to that we had the case where compulsion in respect of taking buccal samples could be applied for murder and manslaughter. Now we are saying that—outside of murder, manslaughter, and indictable offences with a penalty of up to 14 years—for everything else it is voluntary, but, within that, compulsion can be applied to 12 and 13-year-olds. That is the only assumption that we can make by the reference in this Part 2.

So I would like to seek some clarity from the Minister on that. The reason for that is this: when we discussed the bodily samples bill in the Justice and Electoral Committee the direction from the Minister of Justice was clear. That was that he held grave concerns about the creep that could have occurred on the basis of that legislation. Direct reference was made to the idea that we do not want samples being taken in the backs of police cars from young children without guardians who are there or available. We went to great lengths in that bill to make sure that we cross-referenced the Children, Young Persons, and Their Families Act and made sure that we carried over the provisions that apply to an interview situation where a guardian or a caregiver must be given the opportunity to be present. We carried over those provisions for certain classes of buccal samples when taken from young people. It seems to me that we did not discuss again those same kinds of protection for our 12 and 13-year-olds in relation to the broadening of that power for those groups. I have great concerns about that. I ask the Minister to clarify the intention, and also whether the change was discussed with the Minister of Justice. I certainly think it is a clause and a proposal that would have been gratefully received and discussed by the Justice and Electoral Committee when we originally discussed the bodily samples legislation. I think we would have had something quite substantive to say on that extension, that broadening of scope and power.

I guess, again, that that all comes back to the flow-on, as I mentioned, of the broadening out of the way we treat our children in our legislation, because this is not just a filtering or a streamlining of our Youth Court and Family Court processes; it has a much broader effect. The importance of this clause is reflected in the fact that we now, as a consequence, are in breach of our obligations under the UN Convention on the Rights of the Child. I would like to hear the Minister’s thoughts on the impact of those changes on that convention, because—very recently, I know—the Government had an opportunity to appear before the United Nations Human Rights Council in Geneva, but did not mention this bill; it did not mention Part 1, let alone Part 2. Not only were we already in breach, based on the way that our 17-year-olds are treated in the youth justice system, but rather than fixing that, the Government broadened the whole thing out and brought in 12 and 13-year-olds, just for good measure. They are children; as we have continually highlighted throughout this debate, they are still children. That is what I would like to put to the Minister.

The reason why the UN, obviously, has a broad definition of whom it considers to be children in that convention and why it is important that they be treated differently is based on research and on evidence. It is based around the ideas of brain development, the impact of young people being in what is deemed a pseudo-adult criminal justice system, and the long-term impact on those children being exposed to an overtly punitive form of criminal justice. I would like to hear the Minister’s reflection on our obligations, because Part 2, I think, is in direct contravention of that convention, as well. I know, for instance, that Simon Power, either in the lead-up to, or after his appearance before, the United Nations Human Rights Council in Geneva, stated—and I think this is a good quote, because I do agree—“It’s important to front up with our own situation so that we can credibly discuss the challenges facing other countries.” There is an acknowledgment there by the Minister of Justice that in order to maintain our credibility on the international stage we not only need to be present and be ready to be scrutinised but also have to hold our own in this forum. We need to make sure that we maintain the bar set by the United Nations. In many other respects we do, but this is a fundamental failing. I think that it is slightly disingenuous to have said that we can credibly discuss the challenges facing other countries only if we front up with our own, and then not even discuss what we were debating at that time back in the New Zealand Parliament and in the Social Services Committee as part of the parliamentary process—these fundamental changes made through the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill.

I ask the Minister for Social Development and Employment whether she would not mind addressing the points I have raised around the Criminal Investigations (Bodily Samples) Act and the impact of changes in that legislation, because it is reasonably detailed. The changes there mainly come through implication rather than direct reference, so I would like a little more clarity around those provisions. I also would like to know what discussions were had with the Minister of Justice and the Ministry of Justice on those provisions, because I think, quite rightly, that there have been concerns about the very swift broadening of powers around bodily samples and DNA testing in New Zealand.

Hon PAULA BENNETT (Minister for Social Development and Employment) Link to this

To be clear about Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill, clause 41 amends sections 8, 18(1), 23(1), and 24C of the Criminal Investigations (Bodily Samples) Act 1995. The amendments update the circumstances when children may be required or may consent to give bodily samples, in order to reflect the changes to the principal Act proposed by the bill.

Clause 42 amends section 142A of the Criminal Justice Act 1985. The amendment relates to a child who is serving a sentence of imprisonment, whether that sentence was imposed before or after the commencement of this legislation. It ensures that, after the commencement of this legislation, the child may, while he or she still is a child, be detained under that sentence only in an approved residence as defined under the principal Act.

This part of the bill is very narrow. It applies directly to those matters. I would be interested to hear whether Labour will support this part. It did support the original Criminal Investigations (Bodily Samples) Amendment Bill, and Part 2 merely brings the Act into line with the changes in this bill. Part 2 is a narrow part. We have debated the main part of the bill. I think the clauses in Part 2 are important additions to the bill that we must do.

SUE MORONEY (Labour) Link to this

I thank the Minister for Social Development and Employment for her contribution, but I am afraid it did not actually address the issues that my colleague Jacinda Ardern had asked about with regard to her concerns around this part of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. In particular, the Minister failed to address the concerns about the United Nations Convention on the Rights of the Child, which in my reading of Part 2 of this bill does cause New Zealand some grief in terms of its commitments in that regard. I have had the opportunity to contribute to this debate in the earlier parts of the Committee stage, and in the main I was very focused on whether the boot camp model was the right pathway to go down for our young people who are in trouble with the justice system and in trouble in the course of their lives, in particular thinking about the very good model, Te Hurihanga, which has been established in Hamilton, and which this Government is closing down. That seems to be a much better way to go in order to deal with these issues.

When it comes to Part 2 of this bill, I am interested in gaining some understanding from the Minister about what the implications are for clause 42, which amends the Criminal Justice Act, and amends it in a way that has children subject to our youth justice facilities. I am particularly keen to know what that means in terms of residential facilities when it comes to 12 and 13-year-olds. I have to say that I am interested from a personal perspective as well, because when I read this bill as a member of Parliament I also cannot help but read this as a mother. I cannot separate the two sometimes, and I think that is probably a good thing. That is why we have women in this Chamber, because it is important that we wear all of those hats when we are reading legislation. I am the mother of a 12-year-old. I read this part of the bill and wonder about the rights of my 12-year-old with regard to having compulsory samples taken. I tell members it is not something that I relish the idea of as a parent. What are the—

Dr RAJEN PRASAD (Labour) Link to this

I am pleased to take a short call on Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill, in order to reflect, as my colleagues have done, on the implications from our perspective of the major change that this bill brings forward: that is, the treatment of 12 to 13-year-olds. We are discussing children here. We know the Minister for Social Development and Employment has been very reluctant to use the word children when referring to 12 to 13-year-olds, but that is what they are. When we put them into a criminal jurisdiction like the Youth Court, then it has a whole series of implications.

This part identifies again some of the concerns Labour members have. We are discussing children who are 12 and 13 years of age, and who will be asked to provide bodily samples, I assume voluntarily. Once collected, the sample is kept. All the uses and abuses of those samples are possible.

KEITH LOCKE (Green) Link to this

I rise on behalf of the Green Party to oppose Part 2 for many of the reasons that have been outlined by my Labour colleagues. I think that the United Nations Convention on the Rights of the Child is very relevant here, because the essence of that convention is that the rights and welfare of children come first. If we apply that in this situation to 12 and 13-year-olds, the imposition of a regime of DNA testing and bodily samples is not putting the rights of children first.

We can look at this in perspective. It was not long ago that we did not have any DNA testing. When the select committee discussed the bill that Part 2 is amending, it was said quite clearly by a number of jurisdictions, and by the Privacy Commissioner, that taking bodily samples of people’s DNA is particularly intrusive, much more so than is taking fingerprints or other forms of biometric testing. It is an intrusion on the privacy of the person. If we look at it in the context that this has just come in, then it is very intrusive. We have not had the taking of body samples in place for too long; I ask why we need it now for children.

The Green Party opposed the original bill that effectively brought in compulsory bodily sample extraction. I ask why we now have to bring it right down to include children—12 and 13-year-olds. There is no argument for it to be brought to that level. A provision in the bill talks about suspects, and it should be borne in mind that we do not actually need to be charged to have a bodily sample taken, according to the original legislation that this bill is amending; one need just be a police suspect. The police have a couple of months before they can charge a person, or decide not to, after they have taken the bodily sample.

Then there is the question about whether a 12 or 13-year-old is able to give consent. When we are talking about 12 and 13-year-olds, are we really talking about consent? For example, a 12-year-old is bundled into the back of a police car and is taken to the station and asked whether he or she will consent to a body sample being taken. In any rational analysis, there is no consent there—99 percent of the time you do what the police say, and there might be a few implications that if you do not, there might be a few downsides for you and your family.

MOANA MACKEY (Labour) Link to this

I will start off my call on Part 2 by foreshadowing two amendments that Labour will put forward. It is important to say that Labour has put forward these amendments to Part 2 based on previous rulings in the accident compensation legislation about where these matters need to be raised. The Chairperson previously ruled that expiry provisions must be within a part of the bill, not with the preliminary provisions, so we are following that ruling, and these amendments are to be inserted as a new clause in Part 2.

The two amendments are very different. The first amendment would mean that the entire Act expires by way of a sunset clause, and the second amendment would mean that only Part 2 of this legislation expires. I very much look forward to the ACT Party’s support for these amendments, as the ACT Party has regularly called for legislation and regulations to have sunset clauses and expiry dates. In this instance we agree with those members, and we look forward to having a majority of the Committee in favour of these sunset clauses.

When it comes to Part 2, I urge the Minister in the chair, the Minister for Social Development and Employment, to answer some of the questions that are going unanswered in this debate. I would really appreciate getting some clarification over the compulsion in the taking of DNA samples from minors.

I have the Criminal Investigations (Bodily Samples) Act 1995 in front of me, which is the principal Act being amended by this part. A reading of the Act would imply that we can compulsorily take a sample from a 12 or 13-year-old in the case of murder or manslaughter, and my reading of the amendment that the Minister is putting forward in Part 2 is that that power will be extended to any indictable offence punishable by 14 years’ imprisonment or more. I would like the Minister’s clarification on that—that what we are doing here is saying that a DNA sample can be taken compulsorily from a 12 or 13-year-old for any indictable offence punishable by 14 years’ imprisonment or more. I do not think it is too much to ask for that clarification so that we know what we are passing here this evening.

This is of particular interest to me, and I gave many speeches on previous legislation amending the Criminal Investigations (Bodily Samples) Act, which this Government passed. That amending legislation extended the DNA database. The reason I did that was that although I am a great believer in DNA legislation—I am a great believer in its potential not just for convicting the guilty but for freeing people who have been wrongly convicted of crime—it does worry me that members of this Parliament do not seem to realise that although this technology has enormous potential, it also has enormous risk and restrictions in its ability. It is not foolproof by any stretch of the imagination.

Members of this Committee know how powerful DNA technology is. If 12 or 13-year-olds go to court and there is DNA evidence against them, it is very difficult to argue out of those charges. The fact is that all DNA evidence does is prove that someone’s DNA was at the scene of a crime. That is all it proves. It is up to the rest of the evidence to prove why someone’s DNA was there, that that person was there, and what that person was doing whilst there. There is an idea that, somehow, if someone’s DNA is found at a crime scene, it means that person committed the crime. I find it worrying that Government members have made those claims in terms of this legislation and in previous DNA legislation that we have passed. They have called DNA testing a fingerprint. It is not a fingerprint. A fingerprint is an entire thing.

When we come to DNA testing, we test only a few loci—something like 0.001 percent of someone’s DNA is tested when a DNA sample is taken. Although it is incredibly accurate, it is not a fingerprint. If we are to be extending again the use and the powers of this technology, I want to hear—and I am pleased the Minister of Justice has come to the Chamber—that Government members understand and are prepared to articulate not just the potential but the limitations of this technology.

As my colleague Lianne Dalziel has pointed out time and time again, it is not just that it is difficult to exonerate someone if he or she is innocent but has DNA against them; it is sometimes hard to get a conviction if the person does not have DNA evidence against them. People believe, because they watch CSI, that DNA is always there, in every single case—it is called the CSI effect amongst the science community. The belief is that if DNA is present, someone is guilty, and if it is not present, the person must be innocent. That is not true. With the greatest respect to the Minister in the chair, I say that when legislation like this extends the jurisdiction of this technology, I want to know that the Government understands those limitations.

I would like the Minister to stand and say yes, categorically, this bill is about the compulsory taking of DNA samples from 12 and 13-year-olds for any indictable offence punishable by 14 years’ or more imprisonment, and that has been extended from murder and manslaughter. That is actually why we have a Committee stage—it is the one opportunity for Opposition MPs to put questions about legislation directly to a Minister and to have them answered, particularly on legislation that is of such importance.

I sincerely hope, because my colleagues have told me that this question has not been answered, that the Minister is prepared to answer it and to clarify it, not just for members on this side of the Chamber but for the public of New Zealand, who want to know exactly what is being passed into law. I am very pleased to see that the Minister is seeking advice, and I hope we can get some clarification on this point so we can stop asking the same question. Until we get a response, I think it is very, very unfair of the Minister to just not answer our question and then move the closure motion, as the Government will inevitably try to do.

Previous speakers have said that we are talking about children here, and we are. These are 12 and 13-year-olds. I think anyone who has children, or anyone who was a 12 or 13-year-old, knows that we are talking about children. It is terrible when children do tragic and awful things. But I would also say that this legislation is about the taking of a DNA sample prior to someone being found guilty.

A person is innocent until proven guilty in this country, and we have to remind ourselves of that when we are talking about extending the jurisdiction of this technology, which is very powerful but comes with enormous risks. When we hear tub-thumping and chest-beating speeches from Government members about how the Government is tough on crime and is cracking down on these terrible, awful tiny horrors and terrors, we have to remind ourselves that in this country a person is innocent until proven guilty.

Just because someone has a DNA sample taken, it does not mean that he or she is guilty. Given the extension of these provisions to 12 and 13-year-olds who may well not have done anything wrong, I do not think it is too much to ask for the Minister in the chair to take a call and clarify for the Opposition members, and for the people of New Zealand, exactly what we are passing into law, because it is not clear.

I would also like the Minister, in her response to that question, to acknowledge that the Government, despite all the speeches that its members are giving, understands the limitations on this technology. I would like her to acknowledge that the Government will properly fund the Institute of Environmental Science and Research, which does the DNA testing through a contract with the police, and that it will train the police properly. In Victoria special squads had to be hired to forcibly take DNA samples from minors. They had to be trained in how to hold minors down in order to forcibly take a DNA sample.

I want the Minister to clarify that that may well be what we are talking about here. If it is, I ask whether training will take place so that we do not end up with endless complaints to the Independent Police Conduct Authority and endless litigation over what the police can and cannot do. The police need protection in this, as well. They need to know exactly what they can and cannot do in order to forcibly take a DNA sample—because we are extending this provision well beyond where the current law is at right now.

But, more important, is the question of whether the Institute of Environmental Science and Research will be properly funded not just for the cost of actually doing the extra DNA tests but for the administrative staff. The administrative staff receive the samples, log them in correctly, and continue the chain of custody that started with the police, and we need to ensure that we do not have any miscarriages of justice because of a lack of funding for the administrative functions that the institute carries out. This is not scaremongering; this has happened in other jurisdictions. In fact, this happened in New Zealand. A man was assaulted in Christchurch and he gave a DNA sample. He was then was charged with murder. But his alibi was that he was in Christchurch being assaulted at the time of the murder, so he could not possibly have done it.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I heard the Minister in the chair, the Hon Paula Bennett, minimise the reality of Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill by saying it follows on from a part that we have been debating at some length. I do not think that is a fair and reasonable response from the Minister. In fact, it sounded as though she was trying to put off having to respond to the questions that have been put to her, and was trying to encourage the Chair, perhaps, to close the debate on a significant part of the bill.

Nobody can ignore the fact that this bill has major consequences for our children. I still cannot hear the Minister use the word “children”. The reason that she cannot use that word is that she finds it really difficult to accept the fact that that is what the law she is responsible for administering says. She is responsible for administering the protection of our children. She has obligations under the United Nations Convention on the Rights of the Child, and she is completely ignoring them. That Minister has not responded to a single question that I asked the last time that we were debating this issue, that Jacinda Ardern asked earlier, and that Rajen Prasad and now Moana Mackey have asked. All of us have asked a series of questions around the implications of this legislation for New Zealand’s standing in front of the United Nations.

The Minister of Justice is in the Chamber. He has been in front of the United Nations, responding on our human rights standing. This bill was not even mentioned then, even though it was before the House when he appeared in front of the UN.

Hon PAULA BENNETT (Minister of Youth Affairs) Link to this

Just in response to Lianne Dalziel, I will quickly say that some of the offences we are talking about are rape, arson, wounding with intent to cause grievous bodily harm, and aggravated robbery. I take members back to some of the well-known and very unfortunate criminals whose string of absolutely dreadful crimes have left victims behind them, and who have caused a lot of distress, and say that if they could have had DNA samples taken from those criminals back when they were first offending, would they not have done that? Would they not have taken DNA samples then, to try to prevent those unfortunate and distressing future crimes that have resulted in people being extremely hurt? We are not talking about the light stuff; we are not talking about indictable offences. I know that those questions have been asked. We are talking about extreme and distressing crimes that leave victims behind them. I say that if we could have taken samples then, we would have. We should give the police that sort of power and that sort of control. I end by saying that, yes, there was a moment when I was on my BlackBerry. The member mentioned before that someone who had seen her on TV had commented about what a good speech she had given. I got a message that said it was appalling.

STUART NASH (Labour) Link to this

It is interesting, I mentioned in my maiden speech something that Harry Holland used to always ask. He was one of the early leaders of the Labour Party, and his first test was to ask: is it right for the people of New Zealand? I was speaking at a Rotary club on Monday this week. Rotary has its four principles, as well, and they are very much aligned with the Labour Party principles. The No. 1 principle is whether it is right for the people of New Zealand. If Harry Holland thought that it was right for the people of New Zealand, then the Labour Party would move forward, start the policy process, and put it into place. I look at this bill with regard to 12 and 13-year-olds and I ask: is this right? It fails the fundamental test. It fails under any test.

I will tell members a story. I heard an interview with a woman called Celia Lashlie. I think we all know of her. She is a prison reformer. She said she thought that of all the people she had ever met in the prison system, only six of them could not be reformed. That woman had met many evil buggers in the prison system, but she had met only six who could not be rehabilitated. On a plane down from Auckland one time, I was sitting next to Sian Elias. I mentioned to her what Celia Lashlie had said, and I asked what her views on this issue were. This was after the honourable Minister Simon Power had said that Sian Elias was not in a position to comment on judicial matters, being the Chief Justice, and what would she know about judicial matters, anyway? I mentioned Celia Lashlie’s comment to Sian Elias, and asked what her view was on that. She said she concurred with it. She thought that very, very few people who entered our judicial system could not be rehabilitated.

This is about language. Politics is about language, messaging is about language. If we tell a 12 or 13-year-old that he or she is a criminal, then we have set that child on a path to jail. That is not what is necessary.

I read the Hawke’s Bay Today, I read the papers. There have been a lot of assaults and there has been a lot of crime. Let us face facts: we are all tough on crime, and we want to be tough on crime. Crime is a scourge of our society, but these are crimes committed by people over the age of 18 or 21 years.

As MPs we have all been to intermediate schools and seen 12 and 13-year-olds running around the fields, and that is where they should be. They should be kicking around rugby balls, throwing softballs around, and throwing netballs through hoops. These are not criminals. If we label them as criminals, then we are labelling them for the rest of their lives. This comes back to national standards and to why all the top academics are against national standards. If we label a kid a failure, then that becomes a self-fulfilling prophecy. If we label a 12 or 13-year-old a criminal, that will become a self-fulfilling prophecy. It is not about that; it is about mentoring. It astounds me.

My colleague Moana Mackey said that the police will run into a whole lot of complaints about this legislation, but I will tell members why they will not. I say this with all due respect to my colleague, who is a very articulate speaker and who knows what she is talking about because science and technology are her background. The police will not run into a whole lot of complaints about this, because 12 and 13-year-olds simply do not know their rights. If a policeman comes along to a 12 or 13-year-old, that child will not complain, because at that age children hardly know which foot to put each shoe on. We are talking about children, for God’s sake. We are not talking about criminals; we are talking about children. Why can members opposite not say that they are children?

CHRIS TREMAIN (Senior Whip—National) Link to this

I move, That the question be now put.

The CHAIRPERSON (Eric Roy) Link to this

We come to a number of amendments in the name of three different members seeking to include an expiry provision in the bill. In order to deal with these amendments, I think a precedent has been set earlier in the day, and in line with that particular precedent I wish to test the will of the Committee as to whether it wants to accept these amendments. I propose to put the question on the two extreme amendments, and on one amendment in the middle, in order to test it. I think that because proposed dates are so far apart, we need some middle ground as well.

The CHAIRPERSON (Eric Roy) Link to this

The Committee has had an opportunity to express its will on a variety of expiry provisions. Therefore, I rule out all other amendments adding expiry clauses after clause 43. We will now have a similar arrangement with regard to adding a new clause 44A, which is a sunset provision. I wish to begin by putting the question on the amendment with the earliest expiry date that I can find, in the name of Grant Robertson.

JACINDA ARDERN (Labour) Link to this

I am pleased to rise to kick off the debate on the clauses of the bill concerning the title, commencement, and principal amendments to the Act. I will start with the title of the bill. I think this actually comes to the core of the issue. The bill is titled the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. Critically, there we are cross-referencing the primary legislation that this bill amends, and that is obviously the Children, Young Persons, and Their Families Act. We heard time and time again in this Chamber and also at select committee that this bill would fundamentally change the core and the principles of that primary legislation. I think to even claim that we are remaining in the realms of the core values of that legislation is actually quite misleading.

So I am proposing that we change the title of this bill. Perhaps we could change it to the “Most Fundamental Change Since the Inception of the Children, Young Persons, and their Families Act Amendment Bill”. Just to prove my point, I go back to that core legislation and those founding principles, because I think, had we done that at the beginning, that may have better informed the debate. Part 4 of the Children, Young Persons, and Their Families Act 1989 sets out under section 208 the guiding principles for our youth justice system. I think it is worth going over some of those. Section 208(a) states “the principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:”. That is an interesting point, the fact that it makes the reference “the public interest requires”. I ask who the arbiter is of whether the public interest is being served by having a 12 or 13-year-old being moved to, and dealt with by, a Youth Court.

I offer to the Committee the idea that we already have enough flexibility within our judicial processes and procedures in our youth justice system for that test of public interest to be made at that level. To arbitrarily move 12 and 13-year-olds into the Youth Court removes that discretion and public interest test as it sits in the primary legislation. I think section 208(c) is also worth reflecting on together as we go through the final part of the Committee stage. Again, it comes to the core issue. It states: “the principle that any measures for dealing with offending by children or young persons should be designed—(i) to strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and (ii) to foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons:”.

This Act puts the family at the core. It says that if we are dealing with children in particular and they are offending at the level that the Minister claims we are trying to target, there must be care and protection issues in that young child’s home. The Act explicitly states that a core principle is that that family, that whānau, that hapū, that iwi should be a part of dealing with that young person’s or child’s behaviour. We are removing that through this change. We are taking the family out of the equation. When we move a child or a young person into the Youth Court, we essentially fly in the face of this principle within the core primary legislation.

I argue that we would be within our rights to look at the title of this bill and say that it is misleading, and to say instead that we should pick up on the point made by Judge Andrew Becroft when he said that this is the most fundamental change to the primary Act since its inception. Also at the core of this primary legislation is the idea that, essentially, our youth justice system, unless the public interest decides otherwise, should be diversionary and that criminal proceedings should, where possible, be limited in their usage for children and young people.

I do have some other proposals for other names that we could use for the bill. I want to be able to offer those to the Committee. I think we can see that this bill contradicts some of those core principles. Perhaps, if we go a little further into those core principles, we see that age becomes an issue as well. In section 208 it states “(e) the principle that a child’s or young person’s age is a mitigating factor in determining—(i) whether or not to impose sanctions in respect of offending by a child or young person; and (ii) the nature of any such sanctions:”. Again, we have a principle here that we are undermining with this legislation. Perhaps then this bill should be renamed the “Removal of Any Discretion to Test the Public Interest as Set Out in the Children, Young Persons, and Their Families Act 1989 Amendment Bill”. It is not too snappy, I acknowledge.

CHESTER BORROWS (National—Whanganui) Link to this

At this stage of the debate on the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill, it is interesting to recollect a little where we have travelled, the number of people who have spoken, and the points they have made in this part of the Committee stage, which allows us to take a view over the whole bill.

I will make two or three points. The first point is that during the select committee process the Labour members prepared a three-page, fairly extensive minority report, but missing from that report was any talk about DNA. It has been quite interesting to see the debate we have had in respect of the conflict those members seem to find between natural justice and the Bill of Rights, and the taking of DNA samples. In an earlier speech we heard that apparently 12 and 13-year-old children would be held down to have a DNA sample taken from them. The DNA sample is actually taken by the young person taking what we know as a Q-tip, rubbing it on the inside of his or her cheek, and putting it into a plastic bag. The DNA sample is not taken by way of a burly policeman holding down the 12 or 13-year-old. It is important for the people who are listening and making an assessment on the validity of the speeches in the Committee stage to know that fact.

Another point was made about 12 and 13-year-olds being children. Of course, under this Act and the Crimes Act “child” is defined as somebody under the age of 14.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I enjoy the opportunity to follow the member, because I consider that his contribution, unlike the Minister’s, was intelligent and reasoned, and I feel that he went through the issues.

Hon PAULA BENNETT (Minister for Social Development and Employment) Link to this

I want to take members back to the title of this bill, which I think is entirely appropriate: the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. It covers this legislation incredibly well. The bill states that only those children who commit absolutely terrible, heinous crimes will be seen in the Youth Court. They can then be sent back to the Family Court if necessary. I think the title and the commencement date fit well with this bill, and I am happy to speak briefly on that part.

Dr RAJEN PRASAD (Labour) Link to this

I speak on the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill with some sadness. When I heard Mr Chester Borrows talking about this bill and what it intended to do with young children, I was reminded of my days in practice. I was reminded of the Act under which I worked, the Child Welfare Act 1925. Under the provisions of that Act, I was working in South Auckland with young children, young people, and their families.

In those days, after committing a very small number of reasonably minor offences, those young people were railroaded, which was the practice of the day. What we did then with those young children was very much what this bill tries to do with our 12 and 13-year-olds. The Minister might not recall those days, but I am sure her officials can inform her and show her the research. We sent those young children to national institutions, to undertake discipline training. There was one place called Hōkio Beach School in the Horowhenua. There was Kohitere and places like Kingslea Residential Centre, and others. They were sent there to go through so-called intense training.

At one point, these young children were taken out to Camp Peak, owned by the then Department of Social Welfare, in the forest at the foothills of the Tararua Ranges, which is where these young people were given this kind of training. They were then brought back to Kohitere, and sent back to South Auckland. We were supposed to provide wraparound services for them at the time. Within a very short period of time, these young children ended up in youth justice facilities and in the criminal justice system. The recidivism rate was over 70 percent.

It was because of those experiences that the Children, Young Persons, and Their Families Act was designed. It took 10 years to design. I was very involved with it, because of the work I was doing in those days. It took a long time to design the Act, but it really set out the major difference between care and protection, and youth justice. My colleagues have read out parts of the Act and the purpose behind it. But this bill takes us right back to pre-1974 days. I am confused as to what it delivers. I think it does nothing more than deliver the Government’s punitive agenda.

During the election campaign, National members talked so much about violence. They talked about how they would be very strong and punitive, and this is the unpacking of that agenda. Sometimes it is best to stop and rethink, and say: “I now find myself in a different place. I now have material that officials have put before me, and on that basis I will design a much better and much more effective system.”

But that is not what this bill does. It takes us to someplace else. That is why the title of this bill should be the “Shifting the Age of Criminal Responsibility Bill”, because that seems to be its driver. It has a punitive mindset. It will do again to our 12 and 13-year-olds what the 1925 Child Welfare Act did. It was all of those kinds of things that were in the Children, Young Persons, and Their Families Act that focus on care and protection for that age group. We are talking about children and we are talking about care and protection needs. We know that the science and the opportunity are there. The system is there to do better for that particular group than where this bill takes us. Submitters to the select committee made it quite clear that this was a radical shift.

DAVID GARRETT (ACT) Link to this

We have heard the name Judge Andrew Becroft from both sides of the Chamber today in the time I have been here. It just so happens that I was in Christchurch last Monday and I ran into Judge Becroft, whom I had never met, at Christchurch Airport. I went up and spoke to him because I had read in that morning’s paper an account of an address he had given the previous evening. The article said that Judge Becroft had talked about our having produced a lost generation of valueless children. I thought that that sounded remarkably prescient. So I went up, introduced myself, and asked him whether he had been accurately reported and he said that he had. He smiled slightly when I said “We’re pretty much of a mind, then, Judge.” He did not fall about making silly comments like Miss Dalziel would in that circumstance.

Judge Becroft went on to say that we have produced a generation—fortunately of only about 1,000 in his estimation, and he would know—of young people with no values, no morals, and no idea of what is right or wrong. That is where 20 or 30 years of the kinds of policies that Mr Prasad advocates have got us. During his contribution I asked him, by way of interjection, how many child killers there were in 1974. I am sure he heard me, because I have a loud voice, but he ignored me, because there were none. The terrible system at that time that he was talking about, funnily enough, did not produce Bailey Junior Kurariki, aged 12.

I heard that Bailey’s case had been discussed, and as I came in Chester Borrows was talking about him. When he was arrested at aged 12 and convicted of manslaughter he was sent to a youth justice facility and given intensive treatment, if you like, for want of a better word. He was given schooling, psychological assistance, and counselling. When he came to be released at age 18, I recall the Parole Board being quoted as saying that he was now a fine young man with a bright future.

Everybody knows that very shortly after his release he breached parole, and breached parole again, and again.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I have to respond to Mr Garrett’s speech, because I feel there has been an utter misrepresentation of the position that members on this side of the Chamber have taken on this bill, and on why the bill is such a fundamental change to our Children, Young Persons, and Their Families Act 1989, which was world-leading legislation when it was introduced, and which has been looked at by other countries as a means for trying to get underneath the problems.

I cannot believe that that member can describe another human being as a harridan and then describe her circumstances. That member does not know the circumstances she was brought up in; nor does he understand the environment Bailey Junior Kurariki was born in. I think it is really unfair to use that one example of a child who was convicted of manslaughter because he was part of a group. He rang the pizza place, and he opened the door when Michael Choy arrived, but I do not know how much he was led. I do not know how much pressure was put on him to do that. He was 12 years old; he was a child. I cannot believe—and I think it has been absent from this debate—the lack of responsibility that the ACT Party is prepared to take for what is, as the member says, a loss of values in our society, where we have children brought up who are so utterly and completely damaged that their lives will never, ever, fulfil the potential they might have had at the moment they were born.

I am really interested in what we can do across party lines to get underneath those drivers of crime. That is why I attended the ministerial meeting on the drivers of crime that was co-hosted by the Hon Pita Sharples and the Hon Simon Power. I really enjoyed that day, because I was able to sit there, listen, and discuss issues with people who were all there with a common thread, which was to determine what we could do to intervene earlier in the lives of these young people to ensure that they do not become the horrible offenders we are dealing with.

After I attended that meeting I was so struck by the passion of everyone in that room that I went back to the Labour caucus and said that I wanted us to do something we did not normally do: I wanted us to offer to work with the Government collaboratively on the underlying drivers of crime. I said: “Let’s do the 0 to 12-year-olds. We are not going to agree on 12 and 13-year-olds, and we are not going to agree on boot camps, but we do want evidence-based interventions for 0 to 12-year-olds. Let’s do that.” Did I get a positive response from the Government when I made that offer? No. I have been told that the Government is prepared to work with us on the Sale of Liquor Act but is not prepared at this stage to work on other legislation. Government members are saying: “Let’s just see how we go with the Sale of Liquor Act, and if that works then maybe we’ll sit down and talk to you about what really matters.”

I can tell members that there is not one single person working with children in this country who does not want both sides of this Parliament to put down the battle lines on the 0 to 12-year-olds. They want us to work together to come up with the solutions that will address the fundamental change in our society, which happened in the 1970s or whenever Rajen Prasad was working as a social worker on the ground. The difference then was that we had parents in employment, but I know that in the days of Roger Douglas the number of people working for the railways went from 22,000 to 7,000 over the course of 2 years. If members want to look at the cause of youth suicide, and if they want to look at the cause of some of the issues that affected children in the 1990s, they need look only at the massive redundancies that occurred in the 1980s.

I think we all have to put aside some of the concerns we have about protecting certain positions, and actually get real here. We are talking about children being given the responsibility of young people who are much older than they are—children who really have not had the chance to achieve their full potential in life. I believe that New Zealanders will back us for doing that.

Hon GERRY BROWNLEE (Leader of the House) Link to this

I raise a point of order, Mr Chairperson. I think that it is a fair thing that people do sum up in this title debate, but they should at least refer to the title, I think. It is all very well to sum up an argument, but to advance the same old argument again does step outside that. You have called it right; I am not questioning that, but I think that it would be good to hear the title mentioned a few times—or some alternative, perhaps.

SUE MORONEY (Labour) Link to this

I accept the invitation of the Government member Chester Borrows to make sure that we have a good debate on clauses 1, 2, and 3 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I think we are really getting to the crux of the matter now.

I particularly want to talk about the commencement date, because I am interested in what it means for the Te Hurihanga facility, based in Hamilton. If people have been following the debate they will know that this case really again demonstrates a difference between what the Government is proposing and what Labour believes is a really comprehensive approach to youth justice issues and youth crime. In Hamilton both Catholic Bishop Denis Browne and Anglican Archbishop David Moxon have come out calling for the Government to continue the funding of Te Hurihanga. I think the Hamilton community is looking at that decision and saying that on the one hand the Government is saying that it is wrong—it is the wrong model, it is too expensive, and we should shut it down—but on the other hand the two leading clerics in our city are saying that they want it kept open. Who is right in this debate? It is interesting that the Labour Party also sides on that side of the debate. I know which, out of those choices, I would put my faith in.