Criminal Records (Clean Slate) Bill

on behalf of the Minister of Justice: I move, That the Criminal Records (Clean Slate) Bill be now read a second time. It is a great honour to read this speech out, as someone who did a lot of work on a member’s bill on this matter and welcomed the introduction of this bill to the House. The further progress of this bill today brings us a step closer to the creation of a clean slate regime in New Zealand—a regime that finally gives people the chance to put their past mistakes behind them and to get on with their lives as law-abiding citizens, without being subject to unfair discrimination and ongoing punishment. Such a scheme is long overdue in New Zealand. Contrary to what the critics of this legislation may claim, this is not dangerous, uncharted liberal territory. It is not soft law that will see armed robbers and sex offenders being employed as primary schoolteachers, as the Opposition will try to make out. The scheme will allow people with minor convictions—ones that never resulted in a jail term—who have subsequently kept their noses clean for 7 years to lawfully conceal those convictions as they go about their day-to-day lives.

Comparable schemes have been in operation in overseas jurisdictions, including the UK and Australia, for up to 30 years. The lack of such a scheme here has been the cause of extreme, and in my view totally unnecessary, anxiety and suffering for many ordinary hard-working and law-abiding New Zealanders who are haunted by the legacy of a very minor mistake they may have made many, many years ago. Because they have had to disclose a criminal record, they find themselves constantly being discriminated against by prospective employers, by landlords, and so on—despite having lived blameless lives for years, or even decades, since that offence. The punishment they experience for their entire lives is utterly disproportionate to the crime.

Few issues have prompted so many heartfelt letters to the Minister and myself in the 4 years we have been in Government. I have had a letter—

💬 Gerry Brownlee: Give us an example.

💬 Hon DAMIEN O'CONNOR: —if Mr Brownlee would listen—from a 48-year-old grandmother who offended when she was 15 years old. She still feels she is treated like a criminal, as a result of that. Another letter came from a man who committed a petty theft when he was 17, and is still followed by the stigma of his criminal record 55 years later. Another person was convicted of removing a roadworks sign 10 years ago. That was not a victimless or costless crime, I concede, but it is surely an act that a decade later we can forgive as a youthful prank that went too far. We have dozens of letters on this topic, and they all tell similar stories of minor and deeply regretted mistakes that continue to punish their authors, decades on. Many of those affected believe they have suffered discrimination in employment and elsewhere as a result of their criminal record, and all of them feel the stigma of being branded as a criminal in public every time they are asked to disclose any prior criminal convictions. In those cases, the punishment they experience quite simply does not fit the crime.

This scheme is designed to help ordinary New Zealanders such as those people. It is not a scheme that gives free rein for serious or violent criminals to lie about their past. The qualifying hurdle is high by any standards—higher than in most similar overseas schemes. To qualify for clean slating, firstly, the conviction must not have resulted in a custodial sentence, and, secondly, the person must have remained conviction free for 7 years. The conviction-free period of 7 years is a change from the provisions in the bill as introduced. Following discussion and public submissions, the Justice and Electoral Committee decided to reduce the qualifying period from 10 years. The statistical evidence was that if people have a minor conviction and have not reoffended after 7 years, they are unlikely ever to reoffend. There was therefore no reason to hold the conviction-free period at 10 years, and I agree with that amendment.

The non-custodial threshold for qualifying convictions is also a high hurdle. It is conservative in comparison with overseas schemes, most of which allow for a sentence of 6 months or less in prison to qualify, while some allow for convictions resulting in up to 30 months’ imprisonment to qualify. There are advantages in having such a clear threshold. Custodial sentences are generally used as a sentence of last resort for serious or recidivist offenders. Furthermore, that is a clear line of eligibility that the public can easily understand. Any further conviction, whether or not it results in a custodial sentence, will mean that the individual is no longer eligible for a clean slate. Such a conviction will bring the concealed records back to light until such time as all the requirements are met once again.

It is important to note that individuals with convictions for child sex offences will not be eligible for concealment, irrespective of the sentence handed down. Most New Zealanders, if they were sensible—unlike the Opposition—would agree that any child sex offence is a serious matter and, for that reason, should be exempt from concealment.

The clean slate regime provides authorisation for those with qualifying convictions to conceal, or not to be obliged to disclose, those convictions when going about their day-to-day lives. They will, effectively, have a clean slate when seeking employment or accommodation, applying for hire purchase, arranging insurance, and so on. The conviction will not have to be disclosed by the individual, and it will be an offence for a person with access to criminal records to unlawfully disclose a concealed conviction. The official conviction record is retained, however, and may be used in specific exemption situations. The exemptions include accessing clean slate records for law enforcement investigations, and in relation to particularly sensitive matters regarding certain types of employment, such as employment in the care and protection of children or young persons, or employment involving matters of national security. In those cases all convictions will be available to the prospective employer, and must be disclosed by the applicant. We will also move a Supplementary Order Paper at the Committee stage to provide a further exemption, allowing the police to examine clean slate convictions when considering applications under the Arms Act for firearms licences.

It is, unfortunately, not possible for a clean slate regime to legally excuse New Zealanders from their obligation to disclose past convictions to overseas authorities while travelling, or in overseas visa or immigration entry applications. A concealment regime can exempt New Zealanders from the normal obligations under New Zealand law in certain circumstances, but it cannot exempt them from any other country’s law. Similarly, clean slate regimes operating in overseas countries do not apply when those countries’ citizens arrive in New Zealand. That will be a source of disappointment to many people, but it is not within the power of New Zealand’s Parliament to legislate for other countries’ disclosure requirements. Consistent with that reality, the Government legislation enables New Zealand law enforcement agencies to disclose an individual’s full criminal record when requested to do so by equivalent overseas agencies for the purposes of investigation. That reciprocates the level of cooperation that our law enforcement agencies expect from overseas jurisdictions.

I thank the members of the Justice and Electoral Committee for their work on this bill and on the member’s bill in the name of Nandor Tanczos, which was considered alongside this bill. Mr Tanczos’ bill helped to provide impetus to this issue, and raised valuable points of debate and discussion about how a clean slate regime would best be tailored for New Zealand. That debate has, I think, had a positive influence on the shape of this bill, as reported from the committee.

The Criminal Records (Clean Slate) Bill will finally provide the means for many hundreds of New Zealanders to put their past behind them. Those who have lived blameless lives for many years should not be continually punished by the stigma of a past mistake being made public over and over again. This is not soft law, nor is it a licence to lie. The thresholds are high and conservative by any standards, and the scheme’s exceptions are justified and serve as safeguards. We look forward to the passage of the bill and the commencement in New Zealand of a clean slate regime.

It is a privilege on behalf of National to indicate the position of the National Party in respect of this iniquitous legislation, the Criminal Records (Clean Slate) Bill. A very good starting point on which to make preliminary comment is the statement made by the previous speaker that this scheme is to help “ordinary New Zealanders”. I say to Government members opposite that ordinary New Zealanders are not criminals. Ordinary New Zealanders do not require the protective provisions of this bill, which the Government seems determined to pass.

💬 Hon Lianne Dalziel: What hypocrisy.

Clearly, the member’s position is that ordinary New Zealanders are criminals. That is just flying in the face of reality.

This bill has been the subject of very detailed consideration by the Justice and Electoral Committee. I would like to start off by highlighting what the impact of this legislation will be, because it has some core elements that are central to the Government’s philosophies behind it. First of all, the legislation enables criminal convictions to be concealed rather than wiped or expunged. A criminal record that is eligible for concealment must be protected from unlawful disclosure. Later I plan to develop the argument that it is wrong to call this bill a clean slate bill, because the slate is not cleaned; the slate is temporarily concealed and it can re-emerge in the context of a range of circumstances discussed in the bill.

Second, the legislation is automatic in the sense that it does not require individuals to make an application to have their convictions clean-slated. If it were within the power of National, we would be seeking to have a clean slate provision that did require application in individual cases. Third, it is an all-or-nothing regime, which means that an individual must meet all the criteria in order to become eligible—and a record, of course, can become unconcealed in the event of subsequent conviction. Next, the legislation is question-based. It requires those with access to criminal records to treat questions about an eligible individual’s records in a manner that is consistent with the scheme. Finally, it takes “criminal record” to mean official criminal record only, which includes all material held about criminal records by Government agencies.

The commentary on the bill includes National’s minority view—for National was a minority on this committee—and the starting point for our concern is that the legislation is based on mistaken political correctness. It is not in fact clean-slating, as I have said; rather, it is the concealment of convictions in limited cases. Such convictions may become disclosed in a number of circumstances. Not ruled out is the possibility of records maintained in private and media archives. I am certain this legislation will give impetus to a new business, which will be the setting up of private records that will be accessible by those who have an interest in the criminal history of offenders and who can effectively subvert the purposes of this legislation by providing details from that archival material. Second, convictions may become disclosed by the inadvertent disclosure or consent of the offender. There is no doubt that the legislation can be subverted in cases where, for example, in the context of an employment interview, the interview is structured in a way that will lead to the offender believing he or she has no alternative but to disclose that prior criminal history.

As the Minister has said, the third aspect is that the bill does not deal with questions involving the laws of foreign countries—in particular, customs and immigration questions. Those who seek to enter the United States as travellers, for example, will still have to answer correctly the question on the immigration documents that, in the case of entrants to that country and to other countries, asks: “Have you ever had a conviction for a criminal offence?”. So this bill sets up a regime whereby one can tell the truth, and must tell the truth in the context of answering the questions of foreign agencies, but has a warrant to lie in respect of questions asked in a New Zealand setting. Finally, there are exceptions in relation to an offender seeking particular types of employment. Clearly, the class of those employment opportunities has not been closed, because tonight the Minister has indicated that a new exception will be created in respect of firearms licences and questions being asked under the Arms Act.

I believe strongly there is a relevant public interest in knowing the criminal history of any person, particularly in the context of employment. I take as an example my past occupation as a lawyer where there is a need to know, when employing legal staff or staff who will be involved in aspects relating to the handling of money, whether a person has convictions for dishonesty. Law is just one occupation where knowing that information is truly relevant to a decision to take a person into employment. This legislation could well create a situation whereby an offender may have multiple convictions of dishonesty and theft that have fallen short of a custodial sentence but does not have to disclose his or her criminal history. Most thinking New Zealanders would find that utterly unacceptable.

The bill involves sanctioning a lie, because an eligible individual may, under clause 11(2), say that he or she has no criminal record. So the bill legitimises perjury and it legitimises breaches of the Oaths and Declarations Act. I am amazed that any Government that puts a premium on honesty and the need for transparency in process would contemplate legislation of this kind.

💬 Stephen Franks: They don’t.

As an interjector has just commented, that is not the hallmark of this Government, at all.

There is a case—and I would argue this strongly—for greater use to be made of the diversion scheme for minor offences, so that young people facing criminal charges for minor offences do not carry what clearly is the stigma of a conviction. I would like to see the diversion scheme formalised in legislation in order to ensure consistency of application while preserving the necessary element of flexibility. It seems to me that the current diversion scheme tends to favour middle-class, white youths. There is an unevenness in the application of the diversion scheme that could well do with codification and the establishing of more settled guidelines. There is also a case for legislation to contain provisions for true clean-slate applications to be made to the court in individual cases; so where an individual is having a particular problem and where the stigma of a conviction is truly working an injustice, it may be possible, in an individual case, for that criminal conviction to be set aside. However, it should not be on the basis on which this bill proceeds, which is a blanket concealment of convictions. That is very much the essence of this bill.

There are a number of issues of drafting and detail that need to await the Committee stage of the bill. I note, as a point of interest, that incorporated in the bill is a diagram that gives a general overview of eligibility under the clean slate scheme.

I rise to strongly support the second reading of the Criminal Records (Clean Slate) Bill. The legislation that has come back to the House after diligent consideration by the Justice and Electoral Committee is excellent. The committee was well served by three officials who worked very hard on this bill. They were Melanie Gudsell and Susan Roberts from the Ministry of Justice, and Brian Hesketh from the Department for Courts, who worked with us to try to improve this bill.

In the end, the bill’s message is that when a crime occurs, there should be a punishment for it. No one on the committee disputed that. However, the reason we have punishment in our system is so that the crime does not occur again—that once people have committed an offence under the law, they recognise that their behaviour was not appropriate at that time and do not go on to lead a life of criminal offending. That is why we have a punishment system.

💬 Stephen Franks: This is a new theory.

Mr Franks interjects, but he should realise that this bill is not new. It was introduced into the House by his leader, Richard Prebble, who came to Parliament and said that we should have a clean-slate regime. Once upon a time, Richard Prebble from the ACT party supported this bill. Today, for political reasons, ACT members do not, and they screech at the Government on a law and order issue. What we are trying to say is that there are some crimes that are very minor and do not carry a custodial sentence for which people serve the court requirements—a punishment or a fine—at the time, and people should be allowed to move on from that crime, provided they do not reoffend.

All sorts of things are being yelled around the Chamber, but members need to think about certain things. They need to think about whether a conviction for under-age drinking needs to be carried by people all their lives. I suspect that there are members of this House who bought and consumed alcohol before they were over the age of 20. I defy many members of the House to stand up today and say that they did not consume alcohol before they were 20, which was the legal drinking age. All of a sudden there is silence in the House. Mr Franks was very keen to interject before. [Interruption] Dail Jones interjects that the legal age was 70 when he was a boy. Crimes like that mean that people who are otherwise law-abiding citizens carry a criminal record all their lives. That is why we believe that we need to give people the opportunity to move on from that—provided they do not reoffend.

Mr Worth said the slate is not entirely cleaned; it is only concealed. That is true in terms of the mechanism by which the law will work. The law will work every single time the question is asked about whether a person has a criminal record. The system will be activated and will look back over the previous 7 years of that person’s life to see whether he or she has been convicted of an offence that was non-custodial, and whether the retribution for the offence has been paid. That means that if after 10 years of non-offending, a person reoffends, he or she does not enjoy any of the benefits of the clean-slate scheme. That is a tough measure in the bill, rather than a weak one as the Opposition spokesperson on justice tried to portray.

According to the figures, very few people reoffend after 7 years of non-offending, because we are talking about very minor, one-off crimes that people have been caught committing. A lot of the crimes covered by this bill are committed by people who are never caught, and I am talking only about people who are apprehended for those offences. The offences listed in the bill are very minor indeed, and we believe that people need to move on. If we are to get tough on very serious crime, we need to give people the incentive to not reoffend in terms of some of the minor offences. I support the bill. I think it is a very important bill.

💬 Stephen Franks: Where is the evidence that this bill will do one element of that?

The member asks me what evidence there is. If he looks at the report of the select committee—of which he is the deputy chairperson and for which he is paid extra salary—he will see that people do not reoffend in large numbers after 7 years of non-offending. This bill is not about people who lead criminal lives.

💬 Stephen Franks: It didn’t say that.

It absolutely does. The member should go back and look at the Ministry of Justice figures. They show very clearly that people who do not commit a crime after 7 years of non-offending are very unlikely to commit further crime in their lives. There is a very high threshold for that. I support the bill and look forward to seeing it progress though the House.

New Zealand First opposes the Criminal Records (Clean Slate) Bill. It is a classic example of the minority Labour Government being soft on law and order. We set up a judicial system and a police system whereby we apprehend people, who are caught, convicted, and have a conviction against their names. This Labour Government wants to forgive them after 7 years, as opposed to those people who have never had a conviction and have always had a good life, and who apply for the same job as someone who has had a conviction. The person who has had a conviction—perhaps for theft—will stand just as good a chance of getting the job under this Labour Party scheme as someone who has had no conviction for theft. After 7 years, the applicant would have his or her conviction concealed, and would stand as good a chance as someone who had led a blameless life of getting that job, say, in an accountancy or a law firm.

What is the point of not committing offences when, under this Labour Party legislation—which is supported by other parties—a person could, after 7 years, have a conviction forgiven. There is no point. One might as well say to people when they are 18: “Have a grand old time, commit any number of minor offences of a particular nature, and after 7 years have gone by, no worries, they’re all forgiven.” That is the soft-on-law-and-order, Labour Party - type of situation.

Of course, that is the sort of thing that a middle-class, European, white, Anglo-Saxon, Protestant male would do, but the young Māori lad, who does not understand these things, would keep on committing offences. He would always be caught by the system and would never have a clean slate. That is what the Labour Party does not understand. Its members have never been in a criminal court and seen those young Māori lads, time and time again, getting caught up because their mates have done something and they just cannot help themselves and go along with it. They can never ever get a clean slate. But the classic European-type bloke, who has a binge when he is 18 or 19, can get away from it, and about the age of 26 or 27 he will have a clean slate.

The Labour Party does not support Māori in this country. We will not see Labour doing anything on behalf of Māori. It is exactly the same in this type of legislation. Anyone who has done court work can see how this bill will disadvantage the poorer members and the young Māori lads in our society, who will be gripped by this for a much longer time than any young, white, Anglo-Saxon, Protestant male—or female, for that matter.

I say this legislation is soft on law and order. It is, of course, part of the deal between the Labour Party and the Greens on the Supreme Court Bill. What does this bill do? It wipes out cannabis convictions. That is why Nandor Tanczos will be so pleased by it. That is the deal between the Labour Party and the Greens. The Labour Party said to United Future that it would not introduce any legislation that would be soft on cannabis charges. But that is what this bill does. This bill, with United Future’s help—I suspect; I am not sure—will wipe out cannabis convictions. We will have to wait and see what happens, because that party has a sort of minority report on the bill. This legislation, which I think goes to the heart of the agreement between United Future and the Labour Party, will wipe out cannabis convictions for many people. We can see why Nandor Tanczos would support it.

I would have thought that in spite of the United Future – Labour Party agreement, this type of legislation could not possibly go through the House, but here we have it going through. There has been a breakdown immediately, so what will United Future do about it? Will its members just be lapdogs, or withdraw their support for, and confidence in, the Labour Government? I doubt that very much indeed. They will continue on their way, with another broken promise to their supporters.

Of course, there is another group that lingers in the background—the Springbok tour group—all those trendy people who had their convictions from the time of the Springbok tour. I would not be surprised if they were even represented in the House. If they have kept their noses clean, all those convictions for disorderly behaviour and suchlike will be wiped clean, too. If there is anybody in this House who has such a conviction, I presume he or she will disclose that interest to the House before voting on this bill. I believe such members would have a vested interest in how this bill proceeds, so I will be looking forward to hearing whether there is anyone—like those people perhaps who led Springbok tour marches.

I remember the day in 1981 when members of Parliament had to have police protection because Springbok tour protesters were going to break into this Parliament. We had police surrounding Parliament to prevent a break-in by Springbok tour protesters. I well remember standing next to a massive, very attractive female constable who was a well-known discus thrower. I was very pleased she was here, because this place was surrounded by protesters who intended to break in. I raise that issue because if those people come within the general category referred to in this legislation, they will have their convictions quashed. So we have cannabis users and Springbok tour protesters—trendy people who have perhaps had those convictions on their records, and who might not have been able to get as much promotion as they wanted in various areas because of their pasts. It is no wonder that this Labour Party, with its view towards the breaking of law, supports this type of legislation, but we in New Zealand First oppose it.

There is also a trap in this legislation. There will be many people out there who will say: “Oh, well, they have passed this bill now and I want to go to the United States. I haven’t been able to go to the United States because I have had this conviction behind me, but Parliament has now passed this legislation.” They will fall into the trap of thinking that they are now clean and do not have a conviction any more. Of course, they still have a drug conviction so far as the United States, Britain, or anywhere else is concerned. If they have a cannabis conviction of a minor nature, which is concealed by this legislation for New Zealand purposes, they will still have to fill out the form when entering the United States and be asked whether they have a criminal conviction on a drugs charge. The answer still has to be “Yes”.

Many of them, inadvertently, will say “No”, because they do not fully appreciate the issue. They will be in a sort of double-jeopardy situation—doubly at risk—because, first, they will have a conviction in New Zealand, and, second, they will have breached United States law by filling out a form saying they do not have a conviction, when they actually do. That will be a breach of United States law and the law of anywhere else. We are setting a trap for New Zealanders who do not fully appreciate the way this legislation works. In any education programme that might apply to it, there must be clear notice to people that when they are travelling overseas, they do not have any protection from the clean-slate legislation.

It is unfortunate when people commit crimes, but all I can say is that when someone is young and manages to avoid committing crimes by making a positive move not to get involved in something, why should that person be then treated just the same as someone who went out there and committed an offence willy-nilly? Where are the standards in our society today? There are no standards, as far as this Labour Party is concerned. If one is sitting in the pub and having a drink, it is all a question of whether one gets caught or not. But when one is drinking under age under the old law—or even under the new law—one has to be doing it in a public place or on licensed premises. Having a drink at home is not a criminal offence, and Mr Hughes does not seem to be able to grasp the distinction that if one is under the age of 20 years, it is the place where one drinks that matters—not the fact that one is drinking.

The police were very reticent in their view on this legislation, and I am very concerned that New Zealanders will be placed in very difficult situations if this bill goes through the House. We in New Zealand First oppose this legislation. It is soft on law and order. If one commits a crime, one does the time, and the conviction stays there—that is the oldest one in the book. Committing an early crime is a step towards committing the next one, and that is what this minority Labour Government does not recognise. This bill will encourage people to commit their first crime, because they will say to themselves that after 7 years they will be clean-slated—

💬 Darren Hughes: Where’s the evidence?

Darren Hughes has no experience whatsoever. If he appeared, as I have done, for many people under the age of 16—I have appeared for someone under the age of 16 who had 120 convictions for breaking and entering, including breaking into a bank—

💬 Darren Hughes: With a 7-year break in between?

Mr Hughes just does not understand that someone will be encouraged to commit that first offence because they will think they will be clean-slated. Having committed their first offence, they will then be encouraged to commit their second, third, and fourth offences, and it will be all due to the fact that they found committing their first offences so easy that those offences led on to the others. Mr Hughes has absolutely no idea, and this Labour Party has no regard for law and order. This bill should be opposed.

I rise on behalf of the Green Party to support this bill. It is very good that the previous speaker and the member who introduced the bill referred to Nandor Tanczos, because it was his Clean Slate Bill, which was pulled out of the members’ ballot, which started this whole process in Parliament. It was a very good bill, and the Government fairly quickly decided that the bill was such a good idea that it had to think of it, too, which was good. Phil Goff introduced his bill. It was not as good as Nandor Tanczos’ bill, although I understand that the two bills were considered together in the Justice and Electoral Committee, and amendments were made that brought Phil Goff’s bill more into line with Nandor Tanczos’ bill, in several respects. For instance, I think Phil Goff’s bill had a 10-year time period whereas, as speakers have indicated, this bill has a 7-year time period before a person is clean-slated under its provisions.

There has been quite a delay with this bill. There has been about a year between the Government’s announcement that it would bring the bill forward and its introduction, but at last it has come back to the House for a second reading. It is a tribute to the select committee, the way its members worked on it, and the work of the advisers. The changes they made have, by and large, been in a very good direction.

As people have indicated, there is quite a long tradition in this House of movement towards such a bill, and I think Darren Hughes mentioned the name of Richard Prebble, who came forward with a private member’s bill some years ago in that respect. It is interesting that Mr Prebble also moved a private member’s bill to make New Zealand nuclear-free; he has turned round on that issue, too. When his biography is written, I think people will look at his earlier days with the greatest respect and will learn most from those days.

It is important that, as the bill has been processed, the number of exemptions have reduced. There are not very many exemptions under this bill, and I think that is good. Richard Worth said that it was bad, and that the bill is more or less a blanket bill. I think it is good if laws are fairly even in their application; that is something we should strive for. It is important, in terms of the changes that have been made, that decriminalised offences are automatically and immediately clean-slated.

There is a bit of a problem in that the bill does not allow any clean-slating for custodial sentences. That can create inconsistencies, because people who served custodial sentences in the past, or were convicted of something that had a custodial sentence, but the sentence for which has been changed to give a lighter penalty, are caught in a bit of an inconsistency. The bill does not take into account the changes and the liberalisation of the law, in some respects.

Previous speakers have said that the bill is soft on law and order. I cannot see it that way. How is encouragement of the full rehabilitation of people soft on law and order? How is it soft on law and order, if someone has not reoffended for 7 years? Darren Hughes referred to this in his comments or his interjection. If we look at the graphs in the Justice and Electoral Committee report, we see that after 7 years the reoffending rate is very low. What we are saying is that those people will be reintegrated fully into society without the sorts of discrimination, penalties, and negative attitudes that would ensue if we did not have this bill. That helps law and order in society—not the other way round.

Of course, a bit of a public campaign will be required to educate everyone in the community, including those who have offended and who will be clean-slated, to let them know they will be automatically eligible under this law, and will not have to disclose their history with regard to those offences to their employer or potential employer, insurance agency, etc. That is very good. It will require quite a bit of education of employers too, because they might demand or somehow try to penalise workers for not disclosing offences that have been clean-slated.

Dail Jones referred to the Springbok tour. He said that all those people who had minor convictions from the Springbok tour situation will get off and be clean-slated under this bill. I think most of them are very proud of their convictions—the ones I have talked to. But those convictions can still negatively impact on people’s careers if they have to disclose them.

I think a couple of speakers have brought up the contradiction in that the clean-slating will operate in New Zealand, but when people go overseas to the United States or Canada they might still have to disclose those convictions. I think we should look at two things. In some respects, this law is not at the head of the world; there are a lot of other countries that have similar laws, and some are better than this law. But we should try to be part of this world, and should have more progressive legislation in this area. I think we can be a model for some other countries—in North America, etc.—that do not have fully adequate provisions in this respect. We can look at some examples of the problems caused by those overseas jurisdictions that are a bit weak in this area. For instance, one of our greatest athletes, Erin Baker—our great triathlete, world-renowned—had a Springbok tour conviction. When she wanted to compete in a sports event in Hawaii, I think it was, in the Ironman triathlon, she was excluded. It took her quite a while to get round that. We should be in the vanguard of moves—[Interruption] What I am saying is that by our going along with other countries that are leading the way in this respect, we will eventually help sweep up the United States, and people there will see the light. That is the way it goes. I have faith in the people of the United States to get beyond the present administration and the present situation, and, ultimately, to introduce such progressive legislation.

I think this bill is a very good bill. The Greens are fully supportive of it, and we have played a great role in it, in terms of Nandor Tanczos’ bill being in the ballot, and also through his participation in the select committee to progress this situation.

A previous speaker alluded to the police being a little bit cagey in their response to the bill. As I understand it, they were intensively criticised in the select committee when they raised some problems about the exchange of information between international jurisdictions, because, when it came down to it, there did not seem to be any problem in exchanging essential information between police jurisdictions. In that respect, this bill is a very good bill.

I also understand that Doug Graham—a former National MP of some note, and a former Minister of Justice—made some moves down the clean slate track, as well. I think there is a good tradition in both ACT and National in that respect; unfortunately, the people in those two parties seem to have gone a bit backwards. I think we have to realise that this bill will affect many, many thousands of decent New Zealanders, many of whom are starring in their lives, and will benefit very much from this bill. For many thousands of people in the future—young people in particular—who commit small crimes and do not want them hanging round their necks for the rest of their lives, this bill will be very good.

Just in case any people listening to the debate are not otherwise aware of it, I want to commence by reading a chunk of the Labour and Green majority report on the bill: “Labour and Green members encourage the Human Rights Commission to consider including discrimination on the basis of unrelated or irrelevant criminal convictions in its review of the grounds for discrimination in the Human Rights Act 1993. These members further recommend the Government incorporates the recommendations of the National Plan of Action on Human Rights into the Human Rights Act.” We have not seen the national plan of action, but, of course, that does not stop the Labour and Green members from saying it must be a good thing, and to make it law.

Does it speak for itself only to the National Party, United Future, New Zealand First, and ACT that the idea of making it unlawful to discriminate—in other words, to draw distinctions on the basis of whether a person has a criminal conviction—must be about the most gross violation of the human right of freedom of association that one could imagine? Here is a Government that cannot enforce old-fashioned criminal law, here is a Government whose police do not bother to turn up to burglaries, and here is a Government that cannot even prosecute fraudsters, rapists, and burglars within a year. Yet here is a Government that says: “Let’s make a new offence of someone daring to say that he or she would rather not associate with a criminal when there is a choice.” Here is a Government whose members—Mr Darren Hughes and Mr Damien O’Connor—stand up and say: “We think New Zealanders should be forgiving and merciful. And just in case they aren’t, we will make sure they don’t know who needs forgiveness and whom to show mercy to.”

The select committee heard that there are somewhere between 500,000 and 600,000 people to whom this bill might apply. Somewhere between 500,000 and 600,000 people have convictions that will be suppressed under this law. The members tried to persuade us that this is a pressing social need; that those 500,000 to 600,000 people had their lives blighted because New Zealanders were free to choose to decide whether they had outlived their earlier offences. This Government decides: “No, no, we will not leave ordinary New Zealanders with that choice—they might choose wrongly. We will make sure they don’t know who has offended and who has not, and in that way we can pretend that we are merciful and forgiving.” This is the Government saying, as socialists usually do, that it does not trust the good intentions of ordinary folk, and that it does not trust the judgment of ordinary New Zealanders. Instead, the Government will make sure that New Zealanders do not know who has convictions. That is what the Government will do.

Who will be the first beneficiaries of this? The one obvious group that will not benefit is the group whose members are believed, in popular expectation, to be likely offenders. What happens when one cannot get at the truth? Any ordinary New Zealander makes some assumptions, and what will the most likely assumption be? It will be that anyone who is Māori is probably an offender—“I’m not allowed to ask about their record. I cannot find out whether they are offenders. Let us just assume they are and discriminate against Māori.” That is the obvious real effect of a law like this, not the putrid rhetoric we have just had about the 50-year-old woman who is worried that her shoplifting offence years earlier is going to blight her life. No person in this country who is convicted of a single offence has his or her life seriously blighted. The fact that there are 500,000 such people whom none of us know or care about is evidence of that.

This dishonesty on the part of the select committee majority, this misuse of not just rhetoric but statistics, appears on page 29 of the report on this bill, in the table headed “Percentage of people given a non-custodial sentence ... who were not reconvicted in each of the next 15 years”. In year 7 we see that only 32 percent of those aged 10-17 were not reconvicted after 7 years, and that 41 percent of 18 to 19-year-olds were not reconvicted, and then we get up to the really impressive figure that 72 percent of people aged 40-plus were not reconvicted. But what the table does not tell us is how many were reconvicted after two previous offences. This is not a bill about second chances; this is a bill about fourth, fifth, sixth, seventh, eighth, and ninth chances. The average number of convictions of an offender in New Zealand before he or she first goes to jail is nine. The average offender has to be convicted nine times before he or she does not get the benefit of this bill. This bill will suppress the convictions of people who have offended eight times, which is an absolute pattern. If there is one thing we do know, it is that the very best predictor of future offending is a pattern of past offending. A single offence may not be the pest predictor, but that is not what this bill says. This bill does not say people get a second chance; this bill says they get nine second chances.

And this Government masquerades as a Government that wants to be merciful. This is a Government that is condemning thousands of New Zealanders with absolutely clean records to the suspicion of having criminal records. This is the Government that will now charge a priest a $10,000 fine for daring to urge a parishioner to obey the Bible and tell the truth, instead of obeying the Government and telling a lie. This is the Government that puts in the bill a $10,000 fine for a would-be fiancée who asks her intended: “What were you doing with those scumbags? Are you sure you have not been convicted? Please tell me the truth.” This is the Government that says: “Here is a warrant to lie, and we will pretend your offences never happened.” What about people looking for a flatmate, who have just been ripped off and do not want someone who has been a criminal? They want to try to get some objective information, but, no, that is illegal.

The Government has exempted the criminal justice and security systems, but not the medical system and not teaching. Even Nandor Tanczos wanted to make sure that schools could ask about the previous convictions of schoolteachers and childcare workers. But, no, in this great rush of enthusiasm, the members opposite—who actually do not believe in social sanctions; who do not believe that people left alone can organise their lives; who do believe that only when the Government makes people do things can one get virtue and generosity of spirit—have decided that the education system can do without truth, that it can just lump it, that it can take the risk that we are putting teachers in there who have 20 previous convictions, as long as they got away with not being convicted for the last 7 years. Members should think about it: it does not mean that a person has not offended; a person could have been a paedophile in Australia, or could have been out of the country for 6½ of those 7 years. There is nothing this bill can do about that—if a person has no criminal record in New Zealand for the last 7 years, all previous offences are expunged. This is a wicked piece of law.

This bill started with Mr Goff, in all his vein-popping glory, trying to outbid Nandor Tanczos for the “yoof” vote. So Mr Goff, who is there to be tough on crime, is now colluding with criminals who may have any number of prior offences, to suppress their records. This bill is about Labour colluding because it still believes that there is a class struggle, and that criminals are not really responsible for what they do—they are victims of class oppression, to be pitied and helped by the rest of the community, and if the rest of the community does not want to do that, Labour will make it. That is the Labour approach. That is what Mr Darren Hughes has bought into. That is what Mr Darren Hughes so proudly told us was his achievement. Of course, young Mr Darren Hughes is competing with Nandor Tanczos for the “yoof” vote, too. He is going for it by suppressing the criminal records of people who might have enough offences for anyone to know that future offending is likely.

This bill is about forcing us into ignorance. This bill is not about rehabilitation. It will hurt the people who should have expected to be helped by it. The well-connected can still find out about one’s criminal record, because, at least until the human rights law is changed, one can go back through newspapers or one can get a private detective to find out about a record. The people who really need to know and who have the money will still find out about one’s previous record—or they just will not give an unpromising person a chance. I say to members that this is a disgraceful piece of law.

When I first arrived in this House I had quite a bit of respect for Labour. I remember meeting David Major, who was party secretary for National prior to the 1999 election, and I said that the only difference I saw between Labour and National was that Labour wore its sins on its sleeves, whereas National wore them under its sleeves. What I meant by Labour wearing them on its sleeves was that although I saw Labour, in many respects, undermining the Judaeo-Christian ethic and bringing in moral relativism that was destructive of our society, at least it was upfront about it. National’s arrogance, and its disregard, even to the extent of abuse, of those who are the least well-off in New Zealand society, and its drive to benefit the rich at their expense, I saw as just as morally reprehensible. Since I have been in this House my respect for Labour has, to some extent, been undermined. The actions in legislation that have occurred under Labour have been nothing short of destructive of the foundations of our society. It has promoted a misconceived ideology that will create more and more problems for our society, and create greater and greater costs to it.

To some extent, Labour seems to be a bit schizophrenic. On the one hand today we have had Labour supporting United Future’s initiative with regard to the Families Commission Bill, which will do a great deal to strengthen families. But then we find that it is bringing in measures that will weaken our society. I do not think it is intentional, largely because I believe that Labour has integrity. But if it is not intentional, then Labour must be doing it somewhat blindly. The example I point to is the Prostitution Reform Bill, which can do nothing but undermine the foundations of our society. I also point to Helen Clark’s speech to the Labour Party conference, in which she said: “Let me be clear: removing the defence of reasonable force does not mean banning smacking. There is no such defence available to a person charged with assault on an adult. That doesn’t mean the police lay charges every time one adult pushes another. So why the reasonable force defence with respect to children?” So what is she saying about that? It is similar to what is happening in this bill.

The ASSISTANT SPEAKER (Hon Clem Simich): There is no similarity, at all.

What she is saying in both respects—

The ASSISTANT SPEAKER (Hon Clem Simich): When I am on my feet the member will sit down. The member has drifted way off this bill. I want him to return to the bill.

Thank you, Mr Assistant Speaker. What is happening in this bill—and what was happening in that situation—is a mandate to lie. Clearly the bill is, without a shadow of a doubt, saying to people that they can lie, but they should not worry about that because the Government says it is OK. Clause 11(2) could not be clearer. It states: “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” How much more blatant can we get than that? This bill is in the same category as that—it is all right to lie. It is destructive to our society when we legislate for people to lie.

There is an alternative model. United Future was very sympathetic to the idea that people who had very old, minor convictions should be able to put those convictions behind them. We proposed an alternative model. We proposed that the law would recognise that the clean slate scheme was a privilege that was being given to eligible people because they had maintained a good character record. In order to convey that, a person would apply to have his or her convictions expunged, following which a certificate would be issued, which would avoid any doubt about the matter by confirming that in recognition of a person’s good behaviour, the person’s convictions had now been expunged. Any application for expungement would be sent to the police, and they would have an opportunity to oppose the application for any of the reasons mentioned in terms of the person’s prior convictions. That would help to ensure that only people who truly deserved the expungement of their convictions would achieve that.

This bill will protect people who, for example, have been to Australia, have been in prison there for major offences, and have come back to New Zealand but who, because they have been out of the country for 7 years, have no New Zealand record and are eligible to have their prior convictions concealed. Such a scheme would also give people who did not want their convictions to be expunged control over whether that occurred. Sue Bradford told us that she wore her convictions like a badge on her sleeve, because she felt proud of them. Well, they will be hidden under this legislation. The exemptions contained in the bill could still be provided for by creating a historical record of convictions—in the same way that legislation shows the historical provisions of Acts prior to their amendment—that would be accessible by the exemption authorities. That record would simply be a historical record of previous convictions that the person had, but which had now been expunged. It would mean that once a person had completed the 7-year rehabilitation period, his or her previous history would be expunged, and even if the person reoffended he or she would start with a truly clean slate.

It would be an easy scheme to administer. United Future considers that although there would be a rush of applications at the early stages, they would then settle down to a regular trickle and simply require the Ministry of Justice, when applications were received and approved, to transfer convictions shown on a person’s record into a history file. Furthermore, as people would need to take affirmative action, United Future considers that applications would largely be limited to people who consider that their previous convictions are an ongoing impediment in their lives. We would also have proposed that to avoid mandating people to lie about the absence of convictions, there would be a restraint on employers as to the nature of questions that could be asked. In particular, a question would need to be framed in a way that specified that it excluded convictions expunged under the scheme. That would be a simple matter for employers to implement on their standard employment forms. That is what we suggested should happen. In fact, some of Nandor Tanczos’s bill headed in that direction.

We do not need to go down the track of mandating a lying regime. If we took that other model, we would avoid a lot of key problems. I have already alluded to one problem that this bill will cause—namely, people who have been overseas for 7 years, no matter what convictions they have overseas, will still be able to have all their convictions in New Zealand wiped and clean-slated, because they have not had any convictions here for 7 years. In addition, there could well be people whom the police are aware are recidivist offenders but, as it so happens, have not been caught for or convicted of an offence for 7 years. Those people may have been charged numerous times, but not convicted. Such people will be eligible for this scheme, even though they are well known to the police. Also, the police may be aware that although a person has had only minor convictions, the convictions that he or she has had—for example, a string of convictions for theft as a servant—make it contrary to the public interest that those convictions be concealed from future employers. However, in this legislation there is no opportunity for the police to object to the concealment occurring if a person meets the criteria of the Act.

One of the difficulties of this bill is that it chooses to sting employers, and does nothing to encourage people who want to use the scheme to comply with it. Under the provisions of the scheme there are huge penalties on employers who misuse the provisions of the bill. But if somebody abuses the bill by lying and claiming that he or she does not have convictions, even when under the terms of this bill he or she is not entitled to claim that, that person gets off without any censure whatsoever. If there was, as United Future will propose in its amendment during the Committee stage, a provision that actually stated that people would be penalised if they stated they had no convictions—relying on the clean slate scheme or otherwise—when they did have convictions, at least that would send a signal to people that if they do not comply with the terms of the legislation they will not get away with it. As it stands, people will read this bill very simplistically. The word will go out through the pubs that a law has been passed that states that if one has old convictions and has not had a conviction for a while, one is entitled to lie about them. That is the simple message that will go out. This legislation will be abused all over the country.

The New Zealand Law Society saw that. It stated: “realistically, individuals should take legal advice if the bill is enacted in its present form, to ascertain they fall within the criteria as of right. It is doubtful whether that will occur. People with a general knowledge of the legislation may consider themselves to be covered when, in fact, they are not. It also leaves open an abuse of the provisions, with individuals failing to disclose convictions on the basis that they believed they did not need to when, in fact, they knew they did.” The Law Society could see that. The Maxim Institute stated: “No certificate is to be issued confirming that a person’s old convictions are to be concealed. Consequently, the scheme will be open to abuse. Unless they have a very detailed knowledge of the specifics of the legislation, devious people will make an assumption that they have the benefit of the scheme when it is not the case, and give misleading answers to questions about their past.”

I could not agree with those sentiments more. That is exactly how the bill will operate, and it will simply mean that employees going for jobs will lie about any convictions they have. United Future will oppose the bill.

The essence of this bill is actually summarised by clause 11, which has already been read out. But it is such an important clause I will read it out again. Subclause (2) of that clause states: “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” How many criminals, because that is whom we are talking about, will thoroughly research this law, find precisely the circumstances in which they are permitted to give a State-sanctioned lie—

💬 Stephen Franks: The most wicked ones will!

The most wicked ones will do the research. But other people will just say that they know Parliament has passed a law that enables them to lie, and when asked the question they will just say that they have no criminal record. Will the employer be able to easily do anything about that? The answer is no.

Far from the 500,000 or 600,000 people who will potentially be affected by this bill, in reality one will see a much larger group of people all saying they do not have criminal convictions. We will now see a whole group of people with serious criminal convictions saying they do not have them. That is what will happen, and employers—because those are the people who will be mostly asking that question—will find they are employing serious criminals who have lied. They will have lied in breach of the legislation that enables them to lie, which is an absurdity in its own right.

💬 Stephen Franks: Labour thinks it is funny.

Yes, Labour members think it is funny that once one gets on to the slippery slope, one starts to encourage all kinds of lies. And is that good?

I want to turn to a point raised by my colleague Mr Richard Worth, because it really shows how shallow this bill is. Mr Worth has pointed out that records can, in fact, be kept: private records based on newspapers, and so forth. What could well happen is that, particularly lawyers and other employers who are seriously concerned about the honesty of their employees—which actually is common—will go and ask private organisations to tell them the real story as to whether a person has convictions. Those records will be legally kept. The bill permits that, and the people who ask private organisations will get the honest truth—not a State-sanctioned lie but the honest truth as to whether a person was a criminal.

As has been pointed out by other speakers, it is not as though we are just talking about youthful indiscretions. We are talking about a much bigger class of offences than that. As everyone knows, people have to commit numerous burglaries or assaults before they go to jail. How many pub fights result in jail sentences? The reality is that almost no pub fights result in jail sentences. There are people who habitually get into fisticuffs down at the local pub on a regular kind of basis, and they will not have had a custodial sentence. They may be serving periodic detention, but periodic detention is not considered to be a custodial sentence for the purposes of this bill. Quite serious offences, and successions of them, will be covered by this bill.

I am on record—and I will admit this—as having supported the principle of a clean slate. When I heard Mr Nandor Tanczos speak on this issue when he introduced his member’s bill, he talked about a youthful indiscretion: the one-off offence that is committed at 18 or something like that. He talked about minor things: the person who smokes perhaps one cannabis cigarette, and gets a $50 fine. But this bill goes much further than that. If the Government was serious and was concerned about people’s youthful indiscretions, it could have drafted a bill to cover that kind of thing. Again, Mr Worth has pointed out that there is a substantial case to be made to cover something that is genuinely a youthful indiscretion—the one-off offence that is of no real consequence many years later down the track. However, the Government did not take that option. Even Mr Nandor Tanczos—although admittedly his bill went much further than that, but, nevertheless, his speech in the House did not—confined his remarks to the youthful indiscretion, and said that we ought to have legislation to cover that.

National is on record as stating, and it noted this again in the minority report of the Justice and Electoral Committee, that there is a case for legislation to contain provision for true clean slate applications to be made to the court with regard to individual cases. A narrow approach could have been adopted—one that might have actually got some sort of broad consent across the Parliament. However, we now have a habit by this minority socialist Government of insisting on passing everything it can by the narrowest of majorities. That practice has become so severe that on major constitutional issues like the Supreme Court, the Government is quite happy to pass legislation with a margin of 63 votes to 57. That kind of approach is the sort of thing that brings the parliamentary process into disrepute. The public did not vote for MMP in order to have minority socialist Governments ramming through legislation without any reasonable attempt to try to acquire a wider level of support for it. For instance, the Government could have done so on the Supreme Court legislation, with regard to issues about overseas judges and the appointment of judges. Those issues could all have been dealt with, and at least a reasonable attempt made to reach across to the Opposition side of the House and draft legislation that would have a degree of consensus.

Has the Government tried to do that on this bill? No, it has not. Once again, the Government is to pass that kind of bill with the narrowest of majorities. That then forces members on the Opposition side of the House to consider the option that when we are in office we should review this legislation and reduce it back to the narrow scope that people are actually concerned about, which is youthful indiscretions. That is the sort of thing that the public wanted to see when MMP was being voted for, and they are not getting it. They are getting a habitual pattern by the Government of ramming through controversial legislation on the narrowest of majorities. Enduring legislation is not built on that basis. Surely, it is one of the responsibilities of this Parliament, and is incumbent upon Governments with regard to this kind of legislation, to do precisely that.

I conclude on this point. We in this House are all aware that some legislation tends to go to and fro, depending on who is in Government. Clearly, employment legislation is in that category. However, a lot of criminal law has to endure over time. One cannot fool around with that every few years. Therefore, it is incumbent on Governments to take a wider view. However, this minority Government consistently fails to do that. We then get legislation like this being served up, which is highly controversial, goes way beyond the original intent of the framers, and brings the whole proposition into discredit. That is one of the reasons why we will be voting against this legislation. We object to the whole way that this Government operates.