Policing (Storage of Youth Identifying Particulars) Amendment Bill

Hon JUDITH COLLINS (Minister of Police) Link to this

I move, That the Policing (Storage of Youth Identifying Particulars) Amendment Bill be now read a third time. I would like to thank the members of the House for the way in which they have dealt with this amendment bill. This bill seeks to rectify the impact of an unintentional legislative change that had the potential to hinder the effectiveness of the police’s efforts to resolve crime and reduce further offending by youth. By restoring the ability of police to retain the identifying particulars of youth, we will ensure that police have one of the essential tools required to reduce offending and victimisation and to increase the overall safety of the public.

In addition, I note that parties in the House have had advance copies of the bill—some parties more advance than others. I would like to thank members for keeping the confidentiality with which I trusted them and I congratulate them on that. I commend this bill to the House.

DAVID CLENDON (Green) Link to this

We have rejected and opposed the Policing (Storage of Youth Identifying Particulars) Amendment Bill, and clearly will continue to do so. As I said earlier today, we oppose the bill on issues of both process and substance. In terms of process in particular, we have just heard from the Minister that all parties were given advance copies of this bill—some more in advance than others. We do not consider getting one single hard copy of a bill at 10.30 the night before it is due to be debated to be particularly advance notice. It clearly was inadequate for us to do any substantial investigation, consideration, consultation within our caucus, or, indeed, to obtain confidential but skilled legal advice. No forward advice was given to us. There was no attempt to streamline the process of this bill through the House by getting the buy-in of all parties in advance of its coming to the House. I made the point in my earlier contribution that had the Greens been taken into the confidence of the Government at some reasonable time in advance of the bill’s being tabled, we might well have been able to negotiate an outcome that would not have involved the process we have gone through today.

Mr Ardern put a challenge to us in his contribution to the House. He wondered why it might be that we were not taken into the Government’s confidence in this matter. I have given that a wee bit of thought in the intervening couple of hours and I have come to the conclusion that the reason the Government is unwilling to take a smaller party into its confidence—an Opposition party—is perhaps that the Government has not yet grasped the reality of MMP. To not give some reasonable advance notice to a party that I can proudly say has proven its ability to accept and respect a confidence, I think indicates that the Government is locked into the notion of a two-party adversarial system. I do believe that the work of this Parliament would proceed more smoothly and get better outcomes if members on all sides recognised that we are in a new context.

Then there is the issue of retrospectivity. Effectively one major component of this bill is that it will be retrospective. It will, if you like, validate the actions of the police between October 2008 and 2010. We are told it will protect the Crown and the police from any possible liability, from litigation, and from appeals of convictions that may have depended upon information that was retained illegally. I do stress the point that we know the police were acting illegally, but they did not know that and there was no reason they ought to have known. I make no criticism of that action.

However, I think we have to respect that retrospective law is most often bad law. There are very clear situations where it ought not to be opposed, and we recall a recent example of that. The Greens had no opposition to the issue of the constable oath. That was finely nuanced wording that put the possibility out there that constables did not have the power to arrest. We had no objection. It was very clear-cut and obvious. This is none of the above. This is far from being a similar case. Retrospective law is anathema to this House to the extent that protections against that appear in our New Zealand Bill of Rights Act. I quote from section 26 of the Act: “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.” There is a clear message within that. It is clearly codified in our law that we do not change the law after the event except in very exceptional circumstances. It may well be the case that this law needs to be changed. However, there is no justification for the way in which it has been done—to put it through without the benefit of legal advice or opinion, without exposure to the public gaze, and without even giving participants in this Chamber reasonable time to consider their views, gather evidence, and undertake some sort of commentary on it.

We are told that the Crown is at real risk of potentially some multimillion dollars from litigants who might seek to appeal against conviction. I think the scale of that risk does not justify the degree of speed, secrecy, and urgency in the passing of this legislation. A contributor from the Labour Party referred, clearly in jest, to a trillion cases out there where young people and their lawyers might choose to attempt to pull back a conviction and to have a finding overturned at the Youth Court level. I reject that completely. We have only to use our common sense to think it through. There would be only a very few cases out of the 1,200 or so that have been talked about where the finding rested solely on one piece of evidence that had been retained, be it a fingerprint, a photograph, or whatever it might be. Any opportunities even for an opportunistic lawyer to go hunting to have a conviction overturned would be vanishingly small.

This House does make mistakes, and it will continue to make mistakes because we are all human beings, and long may that continue. However, mistakes carry cost. I have heard several times the explanation that when young people have committed offences they must be punished for that. If this Government puts itself at risk of some cost because of a mistake made, so be it. The degree of secrecy, of urgency, is not balanced by the degree of real risk of the likelihood of appeals against this.

We heard a revealing commentary from the Minister in her contribution, to the extent that she indicated that these young people who are offending cannot be helped unless they go through some process like a Youth Court. I reject that. I think we can do a great deal to help our young people stay out of the courts, to keep away from this register and away from the notice of the justice system if we invest heavily and well at an earlier stage in their development. We could have a very different debate today about the $1.2 billion in the corrections budget, for example, that could be spent in so many better ways that would absolutely reduce youth offending, adult offending, and recidivism.

Finally, I refer to the challenge I put out. Ten months ago the police realised that they had been getting it wrong, albeit with no blame to them. Clearly, in the intervening 10 months they have not been retaining information. They have been acting in accordance with the law as it is currently written. The challenge I put out is to ask where the evidence is that that has caused a real problem. We have heard that in the absence of retaining information about these young offenders who have been found guilty of some offence, there will be major and serious repercussions, that they will get away with further offences, and that there will be significant adverse effects from that. Where is the evidence? Not one speaker from the Government pointed us towards any information from the police that said that their job became harder, that they had a more difficult time locating offenders, and that they had a more difficult time proving who had committed some crime against the local society.

I am very surprised by that. I would have thought that that, for me, would be a very compelling argument—if I had a document that contained evidence from the police that said their job was made more difficult and they had more difficulty locating offenders, or getting orders against them in the Youth Court or at the District Court, in the absence of being able to retain that information.

A certain quiet has descended. I do hope that from the Government’s contributions we will hear that such evidence exists, that an empirical study has been made, and that this error, which apparently was made, did have that adverse effect in the last 10 months. We know that if young offenders are going to reoffend they tend to reoffend quite quickly. They are captured in some sort of cycle of offending. I would advocate that if the seriousness of this error had been such as has been put to us today, we would have seen evidence of difficulty experienced by the police. I look forward to hearing that evidence from the Government. Kia ora.

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

I wish to traverse in the third reading of the Policing (Storage of Youth Identifying Particulars) Amendment Bill the sequence of events that brought us to today in respect of this bill.

The starting point for this is, of course, the Police Act 1958, section 57(3). It states: “If the person in respect of whom particulars have been taken under this section is acquitted, the particulars shall be forthwith destroyed: Provided that this subsection shall not apply if the person is acquitted on account of his insanity or is discharged under section 19 of the Criminal Justice Act 1985 or section 347 of the Crimes Act 1961.” This provision referred to particulars, and the particulars in this case include his—and of course this was written in the masculine gender in those days; we did not have these nice gender-neutral pieces of legislation that we do today, but given the criminal offending statistics it is probably appropriate for this bill—photograph, fingerprints, palm prints, and footprints, and may use or cause to be used such reasonable force as may be necessary to secure these particulars. So that had been the law since 1958, which is, of course, quite some substantial period of time.

It was timely that the new law, the Policing Act, took effect in 2008. It was 50 years since the previous law was enacted, and, yes, there had been a myriad of amendments. I think the former Minister the Hon Annette King highlighted it as more of a patchwork of legislation rather than a complete whole, as the Policing Act 2008 was want to be. The Policing Act 2008 was a major change in that it modernised the law. There were certain features of the law that it wished to replicate, but in a modern sense and not to derogate from it. Some of the language, as we have already heard, certainly needed to be updated—“if the person in respect of whom particulars have been taken under this section is acquitted, the particulars shall be forthwith destroyed.” Of course, that highlights essentially that those particulars were kept unless the person was acquitted, and even when the person was acquitted, if it was acquittal as a result of an insanity finding or there was a discharge without conviction, then that exception did not apply and the particulars were retained.

This law has always been about the police’s right to hold on to information that they have collected from people in investigating a charge, but only being allowed to retain it on securing a conviction. Obviously, the law allowed for two instances in the good old days, in 1958, which is actually prior to my date of birth, where they were allowed to keep that information. One was acquittal on the basis of insanity. That is because in many cases—and I have spoken to people who have been the family of murder victims, for example—somebody has been acquitted by reason of insanity. The family of the murder victim find the acquittal incredibly difficult to deal with, because of course the person has committed the act but is not guilty of the offence because he or she does not have the mens rea for the offence to be committed. So that person is not capable of forming the intention and not capable of pleading in the case. In that instance, the Parliament of the day decided that it was in the best interests of justice that that information be made available and continue to be able to be retained by the police.

It is the same for those people discharged without conviction. We have heard a lot about discharge without conviction in this House today. It is simply nonsense to suggest that this somehow undermines the status of a discharge without conviction, because in order to get a discharge without conviction the facts must be admitted. A person has to admit that he or she undertook the acts complained of and committed the offence, then that person is discharged without conviction. It is a “get out of jail free” card. It is literally that. I believe that there has been a complete misunderstanding of the nature of that, because the facts are admitted. Given that the facts are admitted, and the fact that under those circumstances that would be the only circumstance where the police could not retain those particulars, it seems to me that a judge would be less likely to discharge without conviction if he or she thought that that would stop the police from using that information in the future. Sometimes when people are given a “get out of jail free” card, they use it and other times they do not. I think that a judge might well be mindful of that fact and say “I’m not prepared to take that risk, so I’m not going to give that person a discharge without conviction.” I think we should be cautious about following that particular line, as proposed by the Māori Party.

Then we come to the Policing Act 2008. Really, all the Policing Act did that was different was that it talked about an alternative resolution being imposed where the person admits to an offence, like diversion. Given that discharge without conviction is an admission of offence and here are some alternative resolutions to be imposed where a person admits to the offence, the same thing now applies in our Youth Court. In fact, we have now, as I said in the Committee stage, in the Youth Court a hierarchy of court responses if the charge against a young person is proved. All this does is give the court the power to be a little more lenient, perhaps a little more leaning towards an outcome that would be better for the young person’s health and well-being, and maybe leading them off the trajectory, the pathway, to crime that they are on at that time. I think that under those circumstances, there is no question in my mind that there was a sense in Parliament when this law was passed in 2008 that the alternative resolution area was an area where the police were going to be allowed to retain those identifying particulars.

The only reason we are debating this issue today is that young people have better options available to them through the Youth Court, and this clause does not reference those options. That is it. That is the only reason we are even debating this today. It is on that basis and also on the basis of this one statement in the regulatory impact statement, which I feel sums it up: “There is no evidence of a policy decision during the development of the Policing Act 2008, to reduce the circumstances under which Police could retain youth IP.” The reason there is no evidence of a policy decision during the development of that Act is that there was no policy decision to reduce the circumstances under which police could retain youth identifying particulars, as opposed to any other identifying particulars. I believe that it is an appropriate use of this House’s time under urgency to pass a law through all of its stages in order to rectify a genuine mistake when there was no policy decision that was upset as a result. For me, it is a pretty straightforward conclusion.

The final point I want to make is this: I would normally rail against any form of retrospectivity. Yes, I did use the word trillions, because it was just the word that came into my head. The truth is that if this bill had gone to a select committee, then every lawyer who has represented a young person in a case where the police had relied on fingerprints as any part of the evidence against a young person—I do not think photographs would be the reason for the conviction—would not come to the select committee to tell it how to improve the legislation. They would go straight to their clients to say “We can get you off. We may not be able to guarantee that we can get you off, but we have a jolly good chance, because there is no precedent value for this where there is only one item of evidence. So we may have a better chance.”

The truth is that very few people from those examples will be in that situation, but I do not think it is a justified use of this country’s expensive judicial system to even go down that track. That is why I support both the retrospectivity and the substance of the changes. They are minor technical amendments to satisfy a mistake made in 2008.

JACQUI DEAN (National—Waitaki) Link to this

When the Policing Act of 2008 was passed, it was assumed that the legal situation relating to the police’s ability to retain identifying particulars of youth was carried over from the Police Act of 1958. It was not, so the Policing (Storage of Youth Identifying Particulars) Amendment Bill we are debating today seeks to rectify that position. I commend the bill to the House.

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

Tēnā koe. Immediately before I came into this House I spent a profitable half hour talking with Deborah Morris-Travers from Every Child Counts, sharing our enthusiasm and our energy for a strengths-based approach to our tamariki. She provided me with a report entitled He Mano Rā: One thousand days to get it right for every child. Those 1,000 days relate to the first 3 years of life and the 1,000 days of a parliamentary term. It is a wonderful concept: the incentive and the inspiration to ensure that our children are well nurtured, and that we place value on policies that lead to positive outcomes for our tamariki and mokopuna. I thought about what a complete contrast it is to the focus of this House today, which has dedicated hours of debate to keeping photographs and fingerprints of youth offenders.

The Green Party and the Māori Party—the only two parties opposing this Policing (Storage of Youth Identifying Particulars) Amendment Bill and making the effort to speak out and speak up on behalf of our people—have received the wrath of the House for daring to oppose this bill. We have been told that it is simply a technical issue, and that all the bill does is restore the legal position under the Police Act 1958.

Tere Harrison, in writing to the Māori Party about her response to this bill, has acknowledged how critical it is for this debate to be held. I share her views, which put forward another position: “That would have to be the immediate concern, under urgency will prevent select committee process and public submission. That’s a gross (and suspiciously a deliberate), misuse of urgency. Unfortunately not all parties are present in the House to vote against it”. That, of course, is the nature of urgency: the process of public scrutiny is shortcut, or, in the case of this bill, completely avoided, so the onus is placed on all parties to take up the issues on behalf of the people who have placed them in this House to speak on their behalf.

The Māori Party has, therefore, taken every effort to ensure that the views of Māori—the strong and independent views of Māori—are placed on the record of the debate on this bill, and indeed every bill in the urgency motion. We will continue to do that, whether or not we receive the reception we hope for, because we are conscious, as Tere Harrison has also pointed out, of the importance of the United Nations Convention on the Rights of the Child, in particular article 3 of that convention, which requires that all “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being,”.

Our focus in raising the questions we have is to bring to the House the opportunity to talk about youth well-being, rather than simply to promote yet another forum for politicians to talk about the perils of youth, and the need to hold the fingerprints of youth who have been admonished by a judge. I really recommend that members look carefully at section 283(a) to (n) of the Children, Young Persons, and Their Families Act. These provisions for children to be admonished, for young parents to attend a parenting programme, and for young people to attend a mentoring programme are now provisions for which the fingerprints and photographs of these young people are kept. I suggest that Mr Hipkins in particular looks at this detail. These orders, from very good legislation, were always intended to focus on child and youth well-being, not to be fodder for this Policing (Storage of Youth Identifying Particulars) Amendment Bill.

I have been greatly disappointed by the nature of the debate today, which has tried to close down discussion on impacts for youth, and instead focus on the mistakes of the statute. At the end of the day, one has to ask: if this bill was merely a technical issue, why were the name and the nature of the legislation kept secret until mid-morning today? According to the New Zealand Herald, the explanation for the secrecy was fears the bill might lead to a flood of legal challenges. That same paper suggests it has been the best kept secret in the world, with discussions between the police and officials taking place since 2010 when the problem was first identified.

We have been talking in the House today about the fact that fingerprints and photographs have been improperly retained ever since the Policing Act of 2008 was implemented. The Minister of Police told the New Zealand Herald that the police had been holding hundreds of records that should have been destroyed under the present law, which have now been destroyed. So, in effect, the Minister has confirmed that unlawful practice by the police has taken place, with the police retaining information that should have been destroyed.

The House needs to know whether the police hold any records that have been collected over the past 3 years. If so, have they been held by the police in breach of the current law, and, if not, then why is the bill being made retrospective? This little bill, containing just four pages, has been described as necessary to rectify a loophole in the law. But I have asked the House to focus on the bigger picture—that is, the group being targeted in this law. We are told in the explanatory note that this group could comprise about 1,200 young people a year—that is, young people who have proven outcomes in the Youth Court and orders made under the Children, Young Persons and their Families Act. Yet again, we have law that focuses on crime and offending, on youth offenders, and on repeat offenders. This is a law to enable the police to retain the identifying particulars of young people who have a charge proven in the Youth Court, and who have had an order made by a judge.

I bring us back to the views of the public—those people who have contacted our office over the morning to share their feedback. Sharlene Pearce shared her view, which I quote for the record: “I do however believe that ‘where attention goes, energy flows’, and that perhaps in the long run (another day) we should look at a solution to changing the attitudes of people looking at our youth in a negative way. i know that it would be a total paradigm shift for society though! It’s seemingly impossible! But could we focus on the positive instead of the negative, I can see some people have very strong feelings about the institutional racism we inevitably face.” A similar view was shared by Maryanne Rapata: “continue to oppose it Minister, hard to fathom that some people are so naive to think that only serious offences and offenders data will be kept. Would hate to think if my moko shoplifts when he is a minor, that the offence will be hanging around his neck for the rest of his life. People change as they grow older, circumstances change but his offence history won’t. Hoha crime is the target for this bill, not serious crime. It’s saying once a crim always a crim. I don’t want that for our kids or in fact anyones kid”.

The most consistent comment made by other parties in this House in response to the arguments put forward by the Māori Party and the Greens has been that we limit our comments to fixing the loophole on the law, rather than stretching out any further. But if we listen to the views of the public, we can hear a focus on forgiveness, on rehabilitation, and on restorative justice. We have not heard the public calling out for youth who have a charge in the Youth Court, or who have received an order made by a judge, to be fingerprinted, photographed, and have their data retained. I remind the House that this bill allows the data to be retained of young persons who have been admonished, young persons asked to attend a parenting education programme, and young persons asked to return to the court 12 months on from their first appearance. If the House thinks that people who have admitted to a charge necessarily have committed the offence they admitted to, then it is living in an alternative universe. So many of our kids go to those courts and say “I didn’t do it, but, hey, if it’s going to get me through faster, I’ll say that I did.” We have to be aware of those issues.

I leave the final word to Aneta Timu: “I’m sure even police can appreciate that we all make mistakes and if we learn from them we deserve to move on unstigmatised”. Will this bill enable the great potential of our youth to be supported? Will it facilitate a second chance? The Māori Party does not think so, and we will continue to vote against it.