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Policing (Storage of Youth Identifying Particulars) Amendment Bill

First Reading

Thursday 18 August 2011 Hansard source (external site)

CollinsHon JUDITH COLLINS (Minister of Police) Link to this

I move, That the Policing (Storage of Youth Identifying Particulars) Amendment Bill be now read a first time. This bill amends the Policing Act 2008 to restore the legal position under the Police Act 1958 in relation to the storage of youth identifying particulars—that is, fingerprints and photographs taken by the police. That legal position was not intended to be altered by the Policing Act 2008, but that, in fact, is what happened.

When the Policing Act 2008 was passed, it was assumed that the legal situation relating to the police’s ability to retain the identifying particulars of youth was carried over from the Police Act 1958. In developing the Policing Act 2008 no policy decision was made to change this provision. However, in 2010 police became aware that the wording of section 34 of the Policing Act 2008, which deals with the storage of identifying particulars by police, was much narrower than the Police Act 1958 in respect of youth.

The Policing Act 2008, as it currently stands, allows police to retain youth identifying particulars only in circumstances where a conviction is entered and an order made that the young person be brought before a District Court for sentence or decision. Under the current legislation police can retain no more than about 50 sets of identifying particulars of young offenders per year. The current wording prevents police from retaining up to 1,200 sets of identifying particulars per year for youth who have a charge proved in the Youth Court and for whom an order is made by a judge. Those orders range from a discharge right through to supervision with residence. This change was an unintended consequence of drafting. If this unintended situation is not remedied, police will continue to be unable to retain the identifying particulars for these young offenders, and any future reoffending by the same people will be more difficult to detect.

Identification of young repeat offenders is a key tool to assist police to prevent future offending, to stop offending growing in severity over time, and to provide reassurance to victims. This bill seeks to rectify the situation through an amendment to the Policing Act 2008 to reflect the position provided for by the Police Act 1958 in relation to the police’s ability to retain the identifying particulars of youth. As the change to the legal position relating to youth identifying particulars was unintended, police were not immediately aware of the change, and, as a consequence, continued to retain youth identifying particulars that should technically have been destroyed over a period of 2 years from the introduction of the Policing Act in October 2008. In good faith, police have now destroyed all those identifying particulars.

Under the current legislation a person could potentially challenge a conviction that was based on evidence from improperly retained fingerprints. This process in itself could be a time-consuming and costly process. Such an appeal may also lead to victims feeling re-victimised. Also, the safety of those convictions could be placed in doubt and result in potential challenges and further stress for victims. Such ongoing challenges are not in the public interest. Neither is it in the public interest to undermine confidence in the criminal justice system by failing to recognise the impact on victims if young offenders are not brought to account. In order to minimise the negative effects of potential challenges, the bill’s amendments are to be retrospective to October 2008. That is also why I requested that the bill be progressed under urgency.

This Government is keen to ensure that young offenders are apprehended, face the consequences of their actions, and have interventions put in place to help stem any risk of their reoffending in the future and becoming more serious criminals. We are equally determined to ensure satisfaction for the victims of crime. This bill seeks to rectify the impact of an unintentional legislative change that occurred during the drafting of the Policing Act 2008 and to restore the ability of police to retain the identifying particulars of young offenders as originally intended. On that basis I commend this bill to the House.

KingHon ANNETTE KING (Deputy Leader—Labour) Link to this

The Labour Opposition will be supporting the Policing (Storage of Youth Identifying Particulars) Amendment Bill through all stages and I thank the Minister of Police for the information that has been provided.

The Policing Act 2008 was a bill passed by the previous Labour Government and I was the Minister of Police at the time. It was a bill, I have to say, that followed a very long and careful consultative process. It took 2 years in the making. It was a bill to rewrite a 50-year-old Act, and over those years there had been incremental changes. The actual Act looked more like a patchwork quilt than good legislation. So over those 2 years there had been wide input from many individuals, from organisations, and from the Law Commission. We even had a public research project undertaken about this bill, and we had very good involvement from the Law Commission.

I think one of the most important things about this bill was that we had across-this-Parliament work done on the Policing Act because it involved the New Zealand Police, which is independent of any political party. So for the Labour Government of the time it was important that we got wide buy-in to a new Policing Act, which we did. In fact, at the time I commended members of this House for the work that was done on bringing together legislation that really only had one contentious part to it, and that was whether we should allow police officers to also stand for local government. At that time we had what was called the “Ron Mark amendment”. Ron Mark was part of our coalition at that time and he was very adamant that we should not allow police officers to stand for local government. He had seen a police officer who had been elected to a particular local authority park his police car outside the council chamber and attend council meetings throughout the day, when he should have been policing. Well, that was the only contentious part of the bill at that time. But when we have a bill that makes so many changes, it is possible that we can make mistakes.

This is the second amendment to this Act. The first amendment was in October 2009, when we had to validate the oaths that were taken by police officers. That was done in this House in a very cordial way and we passed that through. We are now making another amendment, and it too concerns an inadvertent mistake. It was never intended not to carry through the clause that existed within the old 1958 Act that enabled the police to hold and store identifying particulars of young people who had committed a crime, had appeared before the Youth Court, and had not been referred to the District Court for sentence but an order had been made against them under the Children, Young Persons, and Their Families Act. There are a number of orders that could be made, and are made, under that Act, and they range from an order brought for supervision with residence to supervision with activity, etc.

It was never intended that the police should not continue to be able to hold that information. We are not talking about young people who had not done anything; we are talking about young people who had committed a crime. The idea was to hold the information in order to help reduce reoffending. That was why the information was being held. It was not being held inappropriately. As far as I can recall, there have not been issues raised about such information being held. My understanding from the Minister is that it relates to about 1,200 youths each year. I think this Parliament ought to accept that that was an error, it was not carried over, and that we need to amend it. We also accept that it needs to be done under urgency and it needs to be retrospective. We will talk more about that when we get to the clause by clause analysis.

The Labour Opposition will support this bill. It could be said that we need to be much more careful when we are drafting legislation, but I have not yet found any political party in Government that has not had to amend legislation at some stage. Although we are pretty good in this place, we are not perfect. We are not perfect even when a bill goes before a select committee and we have numerous submissions. In fact, the original bill had something like five position papers written on it. Every part of it was looked at, examined, and consulted on. However, errors can still be made. The best thing we can do as a Parliament is rectify an error and move on, to allow the police to carry out their role. We will support this bill, and I hope it receives the support of this Parliament.

DeanJACQUI DEAN (National—Waitaki) Link to this

The Policing (Storage of Youth Identifying Particulars) Amendment Bill amends the Policing Act of 2008 to restore the legal position that was held under the Police Act of 1958 in relation to the storage of fingerprints and photographs by the police. That legal position had not been intended to be altered by the Policing Act 2008, as has just been highlighted by the member across the House, Annette King. When the Policing Act 2008 was passed, it was assumed that the legal situation relating to the police’s ability to retain the identifying particulars of youth had been carried over from the Police Act 1958. In the development of the Policing Act 2008, there was no policy decision to change this provision. But in October 2010 the police became aware that the wording of section 34 of the Policing Act 2008, which deals with the storage of photographs and fingerprints, was much narrower than the Police Act 1958 had been in respect of young people. This bill seeks to rectify the impact of the unintentional legislative change that occurred during the drafting of the Policing Act 2008. I commend the bill to the House.

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

I too rise to support the passage of the Policing (Storage of Youth Identifying Particulars) Amendment Bill through all of its stages under urgency in this House. This is an appropriate use of an urgency motion, because the bill is an opportunity for the House to correct what is, indeed, an unintended consequence of an error in the original law that was passed. I believe that urgency is absolutely appropriate in these circumstances. There is no requirement for the bill to go to a select committee, and there is no requirement to call for public submissions, because in fact the bill that led to this error being made was subject to a very full and complete consultative process, as well as substantial hearings in the public arena through the select committee process. Nobody identified this problem during that process, because it was a drafting problem. I was a Minister at the time, so I was not on the select committee, but I was on the Cabinet legislation committee so maybe I missed it when it went through—

DalzielHon LIANNE DALZIEL Link to this

Probably unlikely. I did read the bills before I attended those meetings. But I did not pick up the particular clause, now section 34 of the Policing Act, that has led to this problem.

I think the previous speaker, Jacqui Dean, identified the answer to a question I was going to ask, and that is when did the police first realise that this was a problem. I think the member who just resumed her seat said that they became aware of the problem in October last year. If that is the case, I will be asking when we get to the Committee stage why we did not use an earlier opportunity under urgency to deal with this—

DalzielHon LIANNE DALZIEL Link to this

Well, I heard the previous speaker say it was October 2010 when they discovered there was a problem.

CollinsHon Judith Collins Link to this

It was a bit later once we had clarified it.

DalzielHon LIANNE DALZIEL Link to this

Once it was clarified. What appears to have happened is that the problem was identified, and no doubt that was within police circles themselves. They would have referred it to the Crown Law Office, I would suggest, for an opinion. In fact, the regulatory impact statement refers to that but it does not say what the dates were. I think it is important, because we as a Parliament need to take note of these kinds of situations that we find ourselves in from time to time and undertake a bit of analysis of how we could improve in the future not only to mitigate against these things happening but also to ensure that the House has an early opportunity to address what is, indeed, a genuine error, as this one is. This is an important matter to bring to the House.

The other point I wanted to make was that yesterday we had quite a significant debate about the use of urgency to pass through all stages a change to the date of the census that arose out of the timing of the Canterbury earthquake and the timing of this year’s census. I felt that that bill should have gone to a select committee, with public debate. I want to differentiate this bill from that bill, for the reasons I have outlined. I think it is important that we enable legislation like this to go through all of its stages at once.

Also, as a general rule of principle one would not support legislation that had retrospective application, but, again, there are instances where retrospective application is appropriate, and this is one of those cases. The reason I am persuaded that this is the case in this instance relates to what costs the police would be put to in defending individual cases in respect of historic cases from 1 October 2008 to the date of the situation being rectified. As the Minister of Police said in her contribution, Crown Law had advised that it is open to a young person to challenge a conviction based on improperly retained fingerprint evidence.

What I had not appreciated until I read the regulatory impact statement was that one of the things the court considers when it is considering an appeal on these grounds is “the nature of the impropriety, and in particular whether it was deliberate, reckless or done in bad faith. If the Judge finds that the evidence has been improperly obtained, the next step is to consider whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.” The statement goes on to say: “If the evidence should have been excluded the court may confirm the conviction, set the conviction aside, or amend the conviction. If the fingerprint evidence was the only evidence justifying conviction, then it may follow that the conviction will be set aside. If, however, there were other evidence justifying conviction, then the Court may, nevertheless, confirm the conviction. Each case will turn on its own facts.” I think it is that last sentence that really compels us to the view that this legislation must be retrospective in application—“Each case will turn on its own facts.” The police could be required to defend challenge after challenge after challenge, rather than relying on a precedent established by the first decision.

Of course, the cost to the Government, the police, and Crown Law would be considerable. One would have to actually ask whether the interests of justice were served at the same time, because sometimes when we are balancing the cost to the Crown and, in this instance, the police with the interests of justice, sometimes the cost to the Crown is the secondary issue, and the interests of justice mean that we must pay the price. In this case, I do not believe that the case has been made out for that price to be paid. I believe that retrospective legislation is appropriate.

This law is backdated to the date when the police first established that this was a problem. They sought advice from the appropriate sources of advice, they then sought to bring in amending legislation, and they worked in collaboration with the Opposition to ensure its smooth passage through all stages in the House. This is a good process and one that I think shows that when Parliament can put its mind to addressing problems, then it can do a good job. This is exactly why the Standing Orders allow for urgency, and on that basis I am certainly very pleased to be part of the Labour team, which is supporting the passage of this bill.

LockeKEITH LOCKE (Green) Link to this

The Green Party disagrees very strongly with the previous speakers on the Policing (Storage of Youth Identifying Particulars) Amendment Bill, including Lianne Dalziel, who said this is a good process. This is just reinforcing this Parliament’s bad reputation for being the fastest legislator in the West. The Green Party got hold of the bill just last night—an advance copy of the bill. It had not, at that point, been tabled in Parliament; no member of the public knew anything about it—its name, its content, or anything else. In fact, the public would not have had any chance at all to find out about this bill until we started debating it in this House. At the time we started debating it, the bill and the regulatory impact statement had been tabled in the House. So the public and any people who might be concerned about the legal issues involved in this legislation have been totally shut out of this process. If this bill is being rushed through in an hour or two, anyone outside this Parliament will not know anything about it, and cannot correct anything we may be doing wrong in passing this legislation.

We do not know, for example, whether the Auditor-General has done a New Zealand Bill of Rights Act audit on this particular issue. There have been submissions to the Standing Orders Committee by various institutions, including the Human Rights Commission, about the speed with which bills pass through this Parliament without sufficient time for people to make submissions. The Human Rights Commission has talked about how it is a problem when people have only 4 weeks to make a submission, and things like that. In this situation the public is totally shut out of the process, and we have concerned citizens, lawyers, etc., holding seminars. I think a seminar was held in Wellington recently on the frequency of urgency and bills being rushed through—all of these problems in our Parliament—and now we are telling these people that a bill can just be rushed through in a couple of hours, without anyone knowing about it, and without the parties in the House knowing anything about it in order to do any research on it. They find out about it only the night before.

In terms of the regulatory impact statement, we were given a copy of the bill last night, but I could not get hold of the regulatory impact statement because it was not live on the website. I have seen it only now, after discussion on the bill has begun. I do not know anything about the Attorney-General’s report, if any. There has been discussion on how we made a mistake in the Policing Act 2008. Well, what better way to make another mistake than to rush a bill through in a couple of hours without any real consideration by this Parliament, let alone by a select committee, and let alone allowing submissions to a select committee. It is just totally—well, I was going to say unethical; I think it is unethical to proceed in this manner.

What is the problem? There are two levels. One level is whether we have made a mistake, and whether people who do not have a conviction through the Youth Court but are discharged, and things like that, should not have their identifying details kept by the police. There is an argument that even though their action has been defined as a mistake, that situation of their details being kept could continue. Basically, we do not want to label young kids with a record—they might be targeted, etc. So there is a substantive debate involved here, as well as a technical debate.

But even if we accept the Government’s argument and Labour’s argument that a mistake was made and that it needs to be corrected, why does it need to be corrected in this manner? Will civilisation in New Zealand collapse if there are one or two appeals as a result of the alleged mistake made here? Do members think a whole lot of lawyers will be running around? Most people who go through the Youth Court want to get it over with and put it behind them. Will they suddenly engage a lawyer, and will the lawyer make an appeal, and will they have their conviction scrubbed on the basis of their information being illegally held by the police for a period? I cannot see it happening. Even if there were one or two cases—and I cannot see, really, that there would be more than one or two—that is not justification for rushing this bill through Parliament as it is, or for having a whole retrospective process. Retrospectivity is very bad, and people will rightly criticise us for that. Sure, this Parliament can make very serious errors that have gigantic consequences involving billions of dollars and cause all sorts of heartache for people. This is not one of those errors.

Let us look at the statistics provided. I rushed through a bit of a reading of the regulatory impact statement just in the few minutes I had before speaking on this bill and after the regulatory impact statement was made available. It says that 775 cases per year have their identifying details matched with a subsequent crime scene, and that some of these cases might have been based purely on a link between the identifying particulars evidence from the previous event to this event—some of these cases. But nobody really knows how many appeals would be made on that basis. As the previous speaker, Lianne Dalziel, said, even if the identity information from the previous event were taken into account by the judge, which would be against the law in terms of the law as it has been for the last couple of years, that does not mean that the conviction would be deemed to be invalid, if there were, as there is in most cases, other evidence for the commission of that particular offence.

It is all a very murky area. In fact, it is one that should be looked at by the select committee. What is wrong with a select committee actually getting into this sort of thing? Then we find out that the police knew about this issue in October 2010. Jacqui Dean, the National speaker, disclosed that. If it is believed that a mistake was made in the previous 2008 legislation, how come we did not go through a considered process, with the parties in this Parliament informed, and did not go through a proper select committee process to correct this error? It is just not good enough. The regulatory impact statement states that if just 20 percent of these cases were appealed, it would be $20,000 per case, or $6.2 million, but I cannot see that 20 percent of the cases would be appealed anyhow. But what is the price of justice? What is the price of this Parliament conducting the proper procedure of a bill through the House, including having a select committee hearing? This is not a case where we need to violate that process.

The substantive issue is very much debatable. The Green Party would like to get a bit of legal advice on this. We are not all expert lawyers who can suddenly decipher the 2008 Act and this amendment and work out exactly whether it is right. We cannot do that in the half an hour that we have been allowed in this Parliament, and from hearing bits of information from other speakers. We require the assistance of research staff, the Parliamentary Library, informed public lawyers, debate with other parties in this House, a proper select committee process—all of those things, which are an essential part of our democracy, have been violated. We used the example of a similar event that was very distressing to the Green Party a couple of years back. A bill on extended parole was introduced into Parliament. We knew about the bill only at the time when it was introduced during a period of urgency, moved by the National Government. It was deemed to be a technical bill. Then we found that there was a very critical Attorney-General’s report on that very same bill. The Green Party struggled to analyse it. We voted against it—the other parties did not—but it was a big abuse of process for that to happen. Thank you.

RoyHon HEATHER ROY (ACT) Link to this

I rise to speak to the first reading of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. The ACT Party is supporting this bill. Although I frequently agree with the principled points that the previous Green speaker, Keith Locke, makes about urgency and parliamentary process, we do not believe, in this particular case, that there is any sinister intent here at all.

My understanding is that the Policing Act 2008 contained a drafting error that removed the police’s ability to retain fingerprints and photographs or to identify particulars of youth, as they previously could under the Police Act 1958. Prior to that error, youth identifying particulars could be stored for young people where a Youth Court made an order under section 283(a) to (n) of the Children, Young Persons, and Their Families Act. The error has meant that youth identifying particulars can be kept for young people only when an order is made under section 283(o) of the Act. It was certainly intended that the provisions for retaining youth identifying particulars in the Police Act 1958 be carried over into the Policing Act 2008. The bill that we have before us today in the House merely seeks to reinstate those provisions.

I recall when the Policing Act, under the stewardship of the Hon Annette King, was being moved through and the preparatory work was being done. I would have to say that the then Minister of Police consulted very widely. I remember several occasions when she made her officials available to Opposition MPs such as me, and a number of issues were discussed. I think it was a genuine oversight in the drafting of the legislation, although that is not to say that we should not be more careful that everything is absolutely right. The Hon Annette King has, in fact, made that point herself in the House this morning. So there is a degree of regulatory responsibility we should be very cognisant of, but it is totally unacceptable that we should have the police acting unlawfully. This bill is very much needed.

Given that the intent was always that this provision would be in the Police Act 2008, I would on this rare occasion say that urgency is being absolutely appropriately used. It is important that this error be rectified as quickly as is possible. We have heard from other speakers that the police have collected youth identifying particulars for around 2 years unlawfully, as they were unaware that there had been this legal change. This situation needs to be rectified very quickly, as I said.

This bill will not extend—and this point is very important—the police’s ability to collect or retain youth identifying particulars beyond what the 1958 Act intended. So in essence there is no change at all in the intent of collection of youth identifying particulars. It is merely rectifying the legislation and putting in place the provisions that were intended and should be there quite rightly. The ACT Party will be supporting this bill.

KateneRAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

Ata mārie. The bill we are now debating was introduced in the urgency motion described only as a Government bill to be introduced and passed. Even in the internal email circulating about this bill, it was referred to as the “Policing Amendment Bill”. In fact, until 9.30 a.m. this morning I did not think it was even going to be debated today. One has to wonder why the intrigue. What was so contentious and so sensitive about this bill that we dared not speak its name? That name is the Policing (Storage of Youth Identifying Particulars) Amendment Bill.

As a matter of principle I try to act in a way that is driven by trusting in the best of people. But here we are on a quiet Thursday morning in Wellington, conscious of two very significant events occurring in other parts of the land. In Ngāruawāhia at Tūrangawaewae Marae, whānau, hapū, and iwi from right across Aotearoa are now gathering to remember Ngā Kawe Mate o te Motu. This is one of the most significant components of the koroneihana, where the people gather from the four winds to pay tribute and remembrance to all those who have passed on since the last coronation. The people come in their hundreds. The widows and children are welcomed on to the veranda of Māhinarangi, and the kōrero begins. This year we are all aware of the significance of so many losses right throughout the land that we grieve collectively. Moe māi rā e ngā huhua kua ngaro ki te pō.

[Slumber there the many lost to the void.]

Meanwhile, whether in Auckland or in our homes, by virtue of coverage from Māori Television, the nation will shortly be stopping in our tracks to pay tribute to our former Governor-General and Archbishop of Aotearoa, the Rt Rev. Sir Paul Reeves. It is a big day for Aotearoa. I return to a quiet Thursday in Wellington where with little fanfare or fuss, while the nation is otherwise distracted, legislation is being introduced under urgency and under plain cover to empower the police with the ability to store fingerprints and photographs of arguably our most vulnerable citizens, our rangatahi. Is this conspiracy theory? Time will tell, but at the very least I hope the Minister of Police can explain why even the name of the bill was not published until this morning.

The key phrase omitted from the public record until 10 a.m. today was “storage of youth identifying particulars”—in other words, the storage of things that can be used to identify youth. Currently, under the Policing Act 2008, police can store youth identifying particulars like photographs and fingerprints only following a conviction. This bill amends the Policing Act 2008 to now include a wide range of categories for youth for which an order in the Youth Court other than conviction is made. Examples of orders for which the bill will allow police to keep youths’ fingerprints and photographs include orders discharging a young person without further order or penalty; admonishing the young person; fines; ordering the youth to come before the court for further action at a later date; paying money towards the cost of prosecution; repairing damaged property or any restitution or forfeiture of property; driving disqualification orders; or an order to attend programmes or courses on drug or alcohol abuse, parenting, etc., supervision, or community work. One might well ask what is not being included in the bill.

As a consequence of this bill, if a rangatahi goes through the Youth Court and gets one of those orders against them, the police will be allowed to keep their fingerprints and photographs. Currently, that is not the case. So is there cause for concern? Presumably, if the police are holding on to the fingerprints and photographs, it will make matching up future crimes easier. One could argue that if a person commits a crime, they need to do the time. It is important to note that this bill deals with retaining fingerprints and photographs, not obtaining them. The assumption is that the fingerprints and photographs have been obtained legally. This bill deals with what happens after they have been obtained. For our people, when they read this speech online tonight and they see orders such as “admonishing the young person” or “ordering the youth to come before the court for further action at a later date”, their antennae will be raised.

In preparing for this bill I came across an article published in 2007 in the police bulletin Ten‑One. It featured a police practice note that encouraged members of the New Zealand Police to promote the fact that it is in the best interests of children and young persons to voluntarily agree to be fingerprinted. To be fair, the practice note made it clear that children under the age of 10 years should be fingerprinted only for the purpose of eliminating them from a police inquiry, and that children aged 10 to 13 years cannot be fingerprinted without written approval from the Youth Aid section of the police. But the note also described the collection of fingerprints as being a crucial part of policing in the community. “Crucial” is a big word. There is not a lot of option built around that word. It means that collection of fingerprints is going to be, and will remain, a priority in the police officer tool kit. So although this bill is focused on storage and retention rather than on obtaining the fingerprints and photographs in the first place, it is still part of a bigger picture in which the material relating to young people is being obtained and stored by our authorities in an attempt to establish serial profiling of youth offenders.

That brings us to a much bigger discussion about racial or ethnic profiling and the connection to human rights—that is, the fundamental rights relating to the protection of personal data and non-discrimination. Those are areas I will focus on in later readings of this legislation. The recognition of discriminatory ethnic profiling practices has taken on a new light in comparable jurisdictions around the world, in the context of recent policy changes relating to counter-terrorism, law enforcement, immigration, customs, and border control. Discriminatory ethnic profiling describes the practice of basing law enforcement decisions solely or mainly on an individual’s race, ethnicity, or religion. For many of our community, it is an issue they have unfortunately associated with too many policing decisions in relation to apprehension of our young people. It must be an issue that we give serious consideration to in this debate. The Minister will be well aware of the robust body of evidence related to police bias and over-scrutiny of Māori, as is best articulated in the series of research reports around police responsiveness to Māori, and Māori responsiveness to police.

The Policing (Storage of Youth Identifying Particulars) Amendment Bill introduces a huge raft of issues for rangatahi and for the Māori population as a whole. The Māori Party will be opposing it at every stage.

ArdernSHANE ARDERN (National—Taranaki - King Country) Link to this

It is a pleasure to rise in support of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. We have heard quite a revelation in Parliament today on a number of fronts. One that has come as a surprise to me, and will be no surprise to Assistant Speaker Ross Robertson as a reasonably long-serving member of the House, is that Parliament can make a mistake, and individual MPs can make mistakes, as can individual Ministers. I thank the Hon Annette King for the genuine way she presented that to Parliament. When I first arrived here 13 years ago, the thing that staggered me the most—and this is not a partisan comment in any way—was the huge number of long-serving members of Parliament on both sides of the House who had never made a mistake—ever. Not once, not ever. No mistakes had ever been made. So for a senior member of the House to rise and acknowledge that a mistake has been made is quite a step forward.

The second revelation that I heard today, which surprised me equally as much, was the fact that the Green Party members are not experts on everything. That has come as a huge surprise to me, because for the 13 years that I have been in Parliament, they have been experts on everything and they are across all the detail, particularly around agricultural emissions and other such things. They are experts and there is no question about it. To learn today that they are not experts on everything is quite a revelation.

I do not buy into the conspiracy theory that has been espoused by one or two speakers. I can see there has been a genuine mistake, and this is the response to that. I think there will be pretty much widespread support across the House for these amendments, and I look forward to the passage of them through Parliament. Thank you.

HipkinsCHRIS HIPKINS (Labour—Rimutaka) Link to this

I find myself in the very uncomfortable position of rising to defend Judith Collins. I feel unclean. I support the Policing (Storage of Youth Identifying Particulars) Amendment Bill. I have now had the opportunity to read it. Thanks to the waffle coming from certain other members in the House, I have had the opportunity to sit down and go through it. I do believe this is a case where urgency is warranted. I am very critical of the Government’s overuse of urgency, and I think a lot of cases where the Government has pushed bills through all stages under urgency have been totally unnecessary. But in this case, I think there is actually a legitimate reason to do so.

We want to be really clear about what we are doing here. We are fixing a mistake by passing the bill under urgency through all of its stages, and retaining the status quo. We are not actually changing anything; we are retaining the status quo. The change was made by mistake, and we are fixing the mistake. Parliament did not get all of the advice on the pros and cons of making the mistake in the first place. We are fixing the mistake and retaining the status quo. If members have a legitimate concern about the status quo, there are other avenues to debate that. There are other ways they can raise those concerns, but actually retaining the status quo is the responsible position for Parliament to take in this instance, because this change was never intended to be made.

The question is, of course, why we should fix the mistake urgently. The reason for urgency, and the reason for doing it all at once and without a huge amount of publicity and notice prior, is that we do not want to see a whole lot of young offenders who have been convicted getting off their convictions because the information the police held that allowed them to identify the offenders in the first place was something that technically, under this mistake in the law, they were not allowed to hold.

I will talk particularly about what this might mean in the context of something that I hope people will be able to understand. In doing so, I hope that members will acknowledge that I have had only half an hour to look at the bill and the notes. If I make a mistake, the Minister of Police can correct me in her next speech. We have a problem with young offenders in Upper Hutt etching shop windows. They have caused thousands and thousands and thousands of dollars worth of damage etching these shop windows on Main Street in Upper Hutt. As I read it, if the police identified those young people, and they had previously been found guilty of something by the Youth Court—anything other than that last provision, section 283(o), I think—and they had not been sent to the District Court for sentencing because the Youth Court had dealt with it, the police would then no longer be able to hold the photographs and fingerprints that they would have otherwise held.

If those young people then reoffended and were caught reoffending because they left fingerprints when etching windows on Main Street in Upper Hutt, the police had used those fingerprints to identify them, and they were then convicted, under this law that is technically open to appeal. I am looking at the Minister, and I hope that she will correct me if I am wrong. But technically that conviction could be appealed, and those young people, having done thousands of dollars worth of damage, could be let off. Everyone who had been the victim of thousands of dollars worth of damage to their shop front windows would be outraged at the thought that the offenders could get off on a technicality because of a mistake that this Parliament made that was totally inadvertent, totally unknown, and could not have been foreseen. I think we are doing the responsible thing, which is making sure that those convictions are allowed to stand.

It is also important to remember why we send young people to the Youth Court. The Youth Court was established to protect young people so that they do not have to go through the District Court process, except if they come under a very limited range of circumstances. This mistake has effectively diminished the powers of the Youth Court in a way that was never intended. I am a defender of the Youth Court. I think it is important that we have a Youth Court and that we do not put young and vulnerable kids in the District Court system unnecessarily. In having a Youth Court, we have to make sure that the powers of the Youth Court are protected. This inadvertent mistake has severely diminished the powers of the Youth Court in a way that I am sure Parliament never intended.

In supporting this legislation we are moving back to the status quo. That does not mean that some of the concerns raised by Keith Locke and Rahui Katene are not worthy of debate; I am sure that they are. But in retaining the status quo we are deferring those concerns for another day, and I hope there will be another opportunity for them to put forward their arguments on those issues in due course.

I turn to the provisions of the Children, Young Persons, and Their Families Act, under which the Youth Court would deal with some of these young offenders. The Youth Court could be imposing a fine, for example, that would otherwise be imposed by the District Court. The outcome is effectively the same as it would have been in the District Court, but the decision is being made by the Youth Court instead. The police technically, therefore, under this mistake that has been made, would have to destroy all of the fingerprints and photographs that they hold of those young people, potentially preventing the police from identifying reoffending by those young people.

It could potentially prevent the police from doing the good work that they do in preventing youth reoffending. I think that is ultimately where we have to get to. We have to say that we do not want young people to keep reoffending and to end up in the District Court system when they are older. We want to give the Youth Court and the police the ability to deal with these young offenders, straighten them out, and get them back on the straight and narrow so that they are not getting into trouble any longer. I am concerned that this inadvertent mistake weakens the police’s ability to do that, and that is one of the reasons why Labour will be supporting the bill.

The Youth Court could impose a fine. The Youth Court could also make an order for the young person—or, in the case of a young person who is under the age of 16 years, for any parent or guardian of the young person—to pay a sum towards the cost of the prosecution. Under the mistake that has been made, that would also result in all of the fingerprints and photographs of the offender being destroyed. The Youth Court could order the young person to pay a sum that it thinks fit, by way of reparation, to the person who had suffered emotional harm, loss, or damage to their property. The Youth Court has the opportunity to say that if a young person has done something wrong, they can pay reparation to the victim, or their guardian can pay reparation to the victim.

Basically, the young person has been found guilty; they have committed the offence. The Youth Court has heard the evidence and determined that the young person has committed the offence. In a District Court, were an adult being convicted, there would be no issue. The police would be able to retain their photographs and fingerprints. But because it is a young person who is being dealt with in a separate court that is set up to protect them, we give the police a lesser ability to retain the evidence that previously they had been able to retain. That just does not seem right. One of the most important things about the Youth Court is that we set it up to protect young people and we should not diminish its powers, because that undermines the legitimacy of the court.

Overall, as we go through the debate, I will be interested to hear further argument. But it seems to me that we are correcting an anomaly.

I will respond briefly to the comments made by Shane Ardern, and reassure him that any evidence the police collected when he drove his tractor up the front steps of Parliament would not be covered by this legislation. He has long since ceased to be deemed a young person. So he is fine. He does not need to worry about this bill at all—

HodgsonHon Pete Hodgson Link to this

He’s childish.

HipkinsCHRIS HIPKINS Link to this

Well, he is childish, but technically under the law he has nothing to worry about. All of the evidence that the police collected when they were investigating that matter will still be able to be kept.

The Labour Party is supporting this legislation because we think legitimacy is urgent in this case, and it does retain the status quo.

LeeMELISSA LEE (National) Link to this

Ahn nyung ha se yo, Mr Assistant Speaker Robertson. It is a pleasure to rise to speak on the Policing (Storage of Youth Identifying Particulars) Amendment Bill. Before I begin, I say to the speaker who has just resumed his seat, Chris Hipkins, that he should agree with the Minister of Police more often because “scruffy” does suit him; “dirty” does suit him. It is a good look. Agreeing with the Minister of Police, who does a fantastic job, does suit that young man.

This Government is keen to ensure that young offenders are apprehended, face the consequences of their actions, and have the interventions put in place to help them stem any risk of their reoffending and becoming more serious criminals in the future. Obviously we are equally determined to make sure that the victims of crimes are protected. In relation to this unintended situation, as the previous Minister of Police, Annette King, has admitted, it was the previous Parliament that passed the Policing Act in 2008, without the intention of giving the police fewer powers. If the bill is not passed today, the unintended situation means that the police would not be able to retain the identifying particulars of these young offenders. That would mean that the police had fewer powers, and that is not what we want.

Identification of young repeat offenders is a key tool in assisting the police to do their job of preventing future repeat offending by these young people. We need to make sure that the young people do not continue to reoffend. When the Policing Act 2008 was passed, as I said earlier, and as other speakers have said, the legal situation relating to the ability of the police to retain identifying particulars of youth was carried over from the Policing Act of 1958. It was not removed on purpose; it was done totally unintentionally. Therefore, I think we are all in agreement in this House today—except for some people who believe that this is a conspiracy; I do not agree that there is a conspiracy—I support this bill. Thank you.

SepuloniCARMEL SEPULONI (Labour) Link to this

Talofa lava, malo e lelei, kia orana. The tone of this debate has been quite good so far, and I refer to what Shane Ardern said earlier about the fact that mistakes are made by Ministers. I think within what was achieved though, we do need to remember that what Annette King did during her time as Minister of Police, in terms of a complete overhaul of the policing legislation, was a huge achievement. Unfortunately, this is one mistake that has been pointed out, but the usage of urgency to correct it is the right usage of urgency, so we are now discussing this legislation.

The tone of speeches, until the beginning of Melissa Lee’s contribution, has been good, but I have to point out that her comments about my friend and colleague Chris Hipkins being scruffy and dirty are unfair. He is not scruffy and dirty at all. We do wonder what happened to the Melissa Lee who wanted to build motorways to get rid of all crime, and stop South Aucklanders going to the rest of Auckland to commit crime. What happened to that big plan and strategy? We are wondering where that has gone. But that is beside the point.

I turn to the bill. A mistake was made in the Policing Act 2008, and it is good that we are seeing urgency being used for the right purpose today, so that that mistake can be corrected. We have before us the Policing (Storage of Youth Identifying Particulars) Amendment Bill. This bill amends the Policing Act 2008 to restore the legal position under the Police Act 1958 in relation to the storage of youth indentifying particulars, fingerprints, and photographs. As Annette, Shane Ardern, and other members who have spoken on this piece of legislation have said, it was an inadvertent mistake that is now being corrected.

Under the 2008 Act the police can store youth identifying particulars only following a conviction. This means that if the identifying particulars of a youth are obtained and the outcome of the case is that an order is not made under section 283(o) of the Children, Young Persons, and Their Families Act—relating to the youth being brought before the District Court for sentence or decision—then the identifying particulars cannot be stored. This legal position was not intended to be altered by the 2008 Act. There was no intention to alter that at all, and, as my colleague Chris Hipkins said, basically this bill returns us to the status quo. There was no intention to change it.

There needs to be greater scrutiny of complex legislation to minimise loopholes, and greater scrutiny of the use of urgency to ensure that valuable parliamentary time is managed effectively. So there does need to be a greater level of scrutiny of complex legislation. We do need to keep in mind that that was very complex legislation, so in some ways I think the House understands that we do need to be a little bit forgiving because of the complex nature of the legislation we are talking about and the fact that a mistake has been made—but it could have easily been made. However, as we go into the future, a higher level of scrutiny needs to occur to try to avoid that happening.

When the Policing Act 2008 came into force a number of changes were made, including to the way in which constables’ oaths were administered. However, even after the changes oaths were still being administered in the same way as under the 1958 Act. This required an amendment to the Act to validate the oaths that continued from October 2009. So since this very complex legislation was brought in, in 2008, I think this amendment bill will be only the second correction that has been made, and, hopefully, this is the only other anomaly we find in the Policing Act.

In October of last year Parliament had to rectify legislation because an amendment to the Summary Proceedings Act that came into force in June 2008 had excluded some minor property offences in the Crimes Act from schedule 1 of the Summary Proceedings Act. From Hansard, with regard to legislative mistakes, Charles Chauvel said: “we need to look at why it happened and how we can do our best, I think through the safeguards we have in the form of the officials and the select committee procedure, and through our decisions as parties to vote in particular ways on particular legislation, to safeguard against this sort of mistake being repeated too often,”. The reality is that we are not perfect here and mistakes will occur. The point that Charles was trying to make—and I think we would all agree with—is that the fewer mistakes that can be made, the better. So whatever levels of scrutiny we need to put in place to ensure they do not occur, the better.

According to the explanatory note of the bill, 1,200 youths have an outcome under section 283 of the Children, Young Persons, and Their Families Act 1989, and the related identifying particulars cannot be stored due to the unintended mistake in the 2008 Act. The storage of youth identifying particulars is vital for the detection of youth offenders who go on to reoffend, and it is important that we have the correct mechanisms to prevent young offenders from progressing to become adult criminals. That is the point of taking this bill through under urgency at the moment. What we do not want is for young people who have been convicted to get off charges because their information was stored in a way that could be deemed illegal because of the anomaly that exists within the legislation currently, and that is what this legislation is seeking to rectify.

This necessary rectification will be vital to solving crimes. Hence, we on this side of the House are supporting the Policing (Storage of Youth Identifying Particulars) Amendment Bill, which has been put forward under urgency. We were slightly surprised that it was so secretive in terms of urgency and in terms of us not being aware until—how long was it until we found out that this bill was being brought in? [Interruption] Oh, OK. So it was at the last minute that we got this bill put before us, but that is OK; we support it. Basically, this bill amends the Policing Act 2008 to restore the legal position under the Police Act 1958 in relation to the storage of youth identifying particulars. We do need to make sure that if our young people are convicted, they do not get off on some sort of technicality, and this bill seeks to ensure that that does not happen.

I want to, again, thank Annette King in her role as Minister of Police in the previous Labour Government. Great work was done with the legislation. We know that there is other legislation in this country that could do with an overhaul, as well. There is legislation that has been added to time and time again—

KingHon Annette King Link to this

The Children, Young Persons, and Their Families Act.

SepuloniCARMEL SEPULONI Link to this

Yes, the Children, Young Persons, and Their Families Act and other pieces of legislation have constantly been added to, and the overall legislation is not very coherent. That was what Annette, as the Minister of Police, sought to address when the Labour Government dealt with this. What we need to do is look at other legislation that may need similar treatment, and we know full well that even if that is done, there is still the possibility that mistakes are made, as the bill before us today points out.

We have been concerned about the overuse of urgency with regard to some of the things the Government has been trying to push through, but we think that this particular case is a good use of urgency.

Before I finish I must tell members that one of my local principals pointed out that he found it really interesting that the Government would use urgency for national standards when there was no evidence to support them and they were contested hotly by those in the education sector, but that it would say that child abuse in this country requires urgent attention, yet it has not pushed through any legislation under urgency to address that issue. One bill that I constantly bring up that needs to be addressed urgently but has not been—it should be one of the measures that goes through under urgency—is the Domestic Violence Reform Bill, which continues to languish at the bottom of the Order Paper. The next time—and I am sure there will be a next time—the National Government decides to put the House into urgency, I plead with it to consider bringing the Domestic Violence Reform Bill through the urgency process. It was consulted on widely across the sector. It continues to be pushed down the Order Paper.

TischMr DEPUTY SPEAKER Link to this

Just for future reference, the member must use a title or a full name when referring to members of the House.

CalderDr CAM CALDER (National) Link to this

It is a pleasure to rise and take a brief call on the Policing (Storage of Youth Identifying Particulars) Amendment Bill. This is an enjoyable, collegial debate, and as I look across the House I see that members opposite all seem to be freshly scrubbed, despite the comment made by a previous speaker, Chris Hipkins, as to his own feeling of lack of cleanliness.

HipkinsChris Hipkins Link to this

It’s not a good idea to slag the Opposition off when we’re supporting you, you know.

CalderDr CAM CALDER Link to this

Not at all; I was saying how well scrubbed the Opposition is looking.

The speaker did make a good point—in fact a number of good points—and that was that this bill will not extend any powers of the police, despite the concerns expressed by a previous speaker to my right. It will not extend any police powers at all; it will just retain the status quo. Parliament is acknowledging that we made an error in the previous Parliament. The legislation was made by that Parliament, and it had an unintended consequence, which was not picked up at the time. The reason for this amendment bill is to remove that unintended consequence, which would allow guilty youths, potentially guilty parties, to escape consequences of their acts and win an appeal on a technicality. We will have the opportunity to debate this bill further during the course of its progress through the House, and at this point in time I commend the bill to the House.

Link to this

A party vote was called for on the question,

That the Policing (Storage of Youth Identifying Particulars) Amendment Bill be now read a first time.

Ayes 106

Noes 13

Bill read a first time.

Speeches