Criminal Records (Clean Slate) Bill

National is opposing this bill. We are opposing it for a number of reasons, which we identified during the first reading and in the Justice and Electoral Committee. I was fortunate to have sat on the select committee during the committee stage of this bill to hear the various arguments that came forward.

💬 Darren Hughes: It was a select committee, not the committee stage.

The member over there wants to interject, and I know that he also sat on the select committee, and he will be making a valuable contribution, I am sure, as this debate develops. But the point I want to make is that, in the eyes of many who would support it, they would say that because we have a clean slate provision any non-custodial conviction within a 7-year period will be wiped off, and they will not have to account for it. What the bill does not do, of course, is expunge that conviction. That conviction will always be there.

The point we make is that there is a perception that this bill will solve a lot of problems for people because they will be able, if they have had a non-custodial conviction and after 7 years of a clean record, to say that they have not had, or have not got, a criminal record. The argument is put up that many people have been affected because they have a criminal record. It has cost them in terms of opportunities for jobs, being admitted to professions, being able to obtain credit, and being able to obtain visas for overseas travel, and they believe that the passing of this bill will help them.

Well, unlike a number of other jurisdictions, including the United Kingdom, Canada, some states of the United States, and some states of Australia, we do not have legislation for the removal, or concealment—and that is what I like to call it—of a past wrong. So we see in the bill that the expectation will be that a number of people will think that they will be on a win, and that this will not actually happen.

That will be the effect of this legislation, assuming it passes—and I hope it does not pass, because when I look at the minority report from the select committee, most of the parties are opposed to this bill, and I would hope that as we progress through the Committee stage they will continue with their opposition to a bill that promotes lying. That is what it does. It promotes the opportunity for somebody to say, when he or she has a conviction: “No, I do not have a conviction. There is nothing untoward in my background that is going to exclude me from a job or being able to travel in whatever form I want.”

During the select committee hearing there were certainly some very good submissions put up, and I refer in particular to Clause 3. New subclause (2) states: “If an individual satisfies the relevant eligibility criteria,—(a) he or she is deemed … ”. I think it is this word “deemed” that is a very important word, because “deemed” in the eyes of many would seem to reflect that they would get an opportunity to get off a past sentence.

I think if we look further at what “deemed” means, for the purposes of having no convictions, that is not strictly correct, because individuals still have a conviction. It is the word “deemed” that I object to because people will still have convictions, but will not need to disclose them and cannot be forced to do so. This is a very important part that I will be covering in Part 2.

New Zealand First opposes this legislation as it did during the Justice and Electoral Committee and during the report back. This bill is a classic example of this Labour Government being soft on law and order. If one commits the crime, then one does the time. If one commits an offence, one is penalised for it, and one should continue to bear that penalty. This Labour minority Government, in this particular part of the legislation and in the legislation generally—of course, one can hardly avoid mixing the two—refers in subclause (2) of Clause 3 to the clean slate scheme limiting the effect of an individual’s convictions and is trying to conceal the fact of the matter. In many ways it is even deluding people to believe in something that is not the case.

The preceding speaker, Mr Tisch, made a very good speech on the matter and set out many points. I would like to add that, for example, there are some people who might think that if they have a marijuana conviction, and it comes within the provisions of this legislation, and they want to go to the United States, they do not have to reveal that marijuana conviction to the United States authorities. Of course, they do have to reveal that marijuana conviction to the United States authorities. There might be some people who will commit yet another offence thinking that they do not have to reveal it to the United States authorities, will conceal it from the United States authorities, get into the United States, and then discover—because they have made a false declaration—that they have committed an offence in the United States. This bill will lull some people into a false sense of understanding as regards their own legal situation.

I take the view that one of the reasons for this legislation is to remove convictions from all those people who protested against the Springbok tour in 1981. This is something that has hung over people’s heads for years and years. One would have thought that those people who protested would have held their conviction with pride, like a medal. But, in fact—

💬 Sue Bradford: I do.

Sue Bradford says that she does, but that is not her only conviction, so it hardly matters. She has many convictions of all kinds—sincerely held ones as well! I think she knows what I am saying, but she put her hand up to say that she had a conviction for protesting at the Springbok tour, and I obviously continued with the opportunity she gave me. But she holds that conviction with pride. But if there were someone now who had such a conviction from1981, under this legislation they could have it quashed. There are many people who would like to see this legislation go through, especially within the Labour Party, I suppose, and then when they apply for a job in the public service, or somewhere, they would not reveal the fact that they had a conviction for disorderly behaviour, and we would not like to think that our public servants or various other people, for example, might have been disorderly, so this bill has many connotations to it. But essentially, as far as New Zealand First is concerned, it is the more criminal type of behaviour that we are concerned about.

The Springbok tour connotation gets caught up, but the more criminal aspect is what really matters. People will have committed offences of dishonesty. They will have gone along—like that lady did recently in the public service—and applied for a job in, say, the social welfare department, and will have been put in a position of authority dealing with money. Then, before we know it, another $2 million will have gone down the gurgler. This minority Labour Government wants to allow that type of thing to happen again.

Well, New Zealand First does not support this type of “soft on law and order” approach being adopted by the minority Labour Government. If a person commits an offence, then that person should know in advance what will happen to him or her, and that person should be prepared to bear the consequences. We oppose this bill.

National does not support the Criminal Records (Clean Slate) Bill. In this part of the debate, we are concerned with Part 1. There are only two parts—I am excluding the title clause, which is yet to come. Clearly, the substantive material is contained in Part 2. Part 2 sets out the application of the clean slate scheme, its effect on an eligible individual, certain offence-creating provisions, and then, of course, the exceptions. I will confine my comments to Part 1, in the context of where we are in this debate. I pick up the obvious point that even in Part 1, the overview provision does not give a fair description of this particular set of clauses. Clause 3, “Overview”, which has been amended in substantial measure, states: “(1) This Act establishes a clean slate scheme to limit the effect of an individual’s convictions … if the individual satisfies the relevant eligibility criteria.” But this legislation does much more than that. That is, of course, why National has some concern about this legislation and would not wish that, if it is enacted, it continue on the statute book for any significant period of time.

If there was to be an accurate statement of what this legislation was about, it would certainly include the following elements as minima. First of all, this legislation enables criminal convictions to be concealed, rather than wiped or expunged, so to talk about a clean slate is a complete misnomer. The concept of a clean slate is that one starts wholly afresh and the slate is completely cleansed. What we have here is a means for criminal convictions to be concealed, provided, of course, they are criminal records that are eligible for concealment, and for such records to be protected from unlawful disclosure. When we come to look at Part 2 we will see just how widely and loosely worded those protections are. The next thing about this legislation is that the clean slate scheme is automatic, in the sense that it does not require individuals to make application to have their convictions clean-slated. So, presumably, significant numbers of the population who have the misfortune to be criminal offenders will never know whether, in fact, the process has been applied in that automatic sense. There is no plan to tell them they have been clean-slated.

The third aspect of the legislation is that it is an all-or-nothing regime. That means that an individual must meet all the criteria in order to become eligible, and that a record can become unconcealed in the event of a subsequent conviction. So much, then, for the concept of clean slating. Not only is the slate not wiped clean for all purposes but the slate may become again darkened, just as the phoenix rises, in the event of subsequent wrongdoing by a particular offender. The fourth point about the scheme is that it is question based, and 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. The Justice and Electoral Committee spent a considerable amount of time looking at that issue in the context, particularly, of the employment relationship. Finally, the scheme takes the phrase “criminal record” to mean an official criminal record only, and it includes all material held about criminal records by Government agencies.

That is the first point that emerges from consideration of clause 3, and what I am highlighting in the points I am making now is really that the overview of the legislation is demonstrably short in terms of its accuracy.

Part 1 of the Criminal Records (Clean Slate) Bill has preliminary provisions, the general overview that Mr Worth has just been discussing, and the definitions. In the general overview we see a complicated decision diagram that shows the essence of this bill. If one has convictions, has not been convicted for the specified period—which the bill reduced from 10 years to 7 years—and has not been to prison, then one’s convictions will be concealed. The net effect, we were told at the Justice and Electoral Committee, was that up to 700,000 people, though probably more likely 500,000 people, would become eligible for the benefit of having a concealed record. That concealment, according to the statement about this bill—the select committee’s pious intent—is supposed to help people to rehabilitate. The committee had no evidence that the net effect of a concealment arrangement like that would be more rehabilitation or less. There is evidence that people with a criminal record find it harder than others to get jobs, and there is evidence that criminal records do influence the way people react to those with such records. But we had no evidence that a scheme like that described in clause 3, “Overview”, will actually change anything in New Zealand advantageously, and there is every likelihood that it will change things disadvantageously.

I say that because a criminal record is objective evidence of a propensity to commit further offences. It is true that if a person has not committed a further offence for a long time after he or she was first convicted, the likelihood of reoffending is low. But that likelihood is not negligible, and we had no evidence that it was lower than if one had no record. In other words, it is rational for people to ask about convictions if they want to get an idea of someone’s character. In the absence of objective information, the people trying to make a decision about a person—whether they are employers, community groups wanting to leave someone in charge of the accounts, or maybe even people in a social setting or officers during an election who simply want to know that the reputation of the person they are dealing with is beyond reproach—will not just say they will make a guess. People make other assumptions. They use stereotypes. They try to make assumptions about a propensity for criminality on the basis of things like the way people dress or their accents, or, in this country and more seriously, their colour. When over 50 percent of the people in New Zealand prisons and a huge proportion of those who come before the courts are Māori or Polynesian, if people cannot get accurate information about criminal records they will make assumptions that will be adverse to those who are likely to be in the groups with a higher rate of offending.

The Māori MPs should think about that when they look at these clauses. They should think about the effect, when objective information is not available, of stereotyping. Stereotyping is simply a prudent reaction; it is what one does in the absence of better information. We all do it, even if we do not want to do it. What this legislation will do—and we can be certain of it, because it is the way that people react—is, given that it will be illegal to be given information about a criminal record and given that the law will tell people to lie about their record, make the community become more cautious, and more risk adverse. The community will not take chances on people who it feels may be dishonest, or who might have committed offences. It will not give them the benefit of the doubt. Instead, the community will try to find a way to make sure that it does not have to run that risk. One way that people will not run the risk is by assuming that if they are dealing with a young Māori, they should assume criminality.

I think that I am the fifth speaker on the bill and the fifth person to oppose it, and that says a lot. So far nobody supports the bill, or, in fact, has the wherewithal to stand up to support it. That is because this bill is all about telling lies. I have noted the comments of my colleague Mr Richard Worth and of the previous speaker, Mr Franks, and I concur with their views that the bill is one where the interpretation and overview of it is a disgrace. All we have to do is to look at the interpretation clause to see that there have been vast changes made to this bill. Unfortunately, those changes are not always to the betterment of the bill. The changes are an indication that much concern was expressed to the Justice and Electoral Committee by members of the public and those who will have to work with this legislation.

Speaking as someone who used to be an employer, I am appalled that the Government is putting through a bill where the purpose is, presumably, not only to allow but to force people to tell lies. As Mr Worth said, the bill does not state that the offence is deemed to have now been wiped clean, and that a person can say he or she has done his or her time, and that is it. This bill requires Government departments to tell lies, and to conceal. Concealment in that circumstance is a lie, and it is not for the betterment of the individual concerned. We all know many people who, in their youth, did something foolish, and who were unfortunately picked up and ended up with a conviction, and we all feel very sorry for them in that circumstance. Having said that, the bill does not protect those people’s ability to travel overseas—not at all. Overseas Governments are not fooled by that concealment of convictions. For instance, if such people fill out an application form or a visa form to go to a country and state that they have no criminal convictions, they are lying. It is a big, fat lie, and unfortunately this Government is, in fact, encouraging them to do that. Those people may think that they can put that lie in their application, but, unfortunately, they may be caught out. If they are caught out in that lie, no doubt they will be deported from and not allowed back into that particular country. So we are setting up the very people we are trying to protect in the bill to end up with a further conviction in someone else’s country, and that is just not OK.

As I said, we all know of many instances of people who, in their youth, did something foolish and were caught. No doubt those people, who may now be in their fifties and sixties, feel somewhat embarrassed about having to talk about an underage drinking conviction and that sort of thing. No doubt they do. However, I would rather they had a moment’s embarrassment—and I think that any sensible person would understand and feel sympathy for them, and think that that conviction should not necessarily stop them from getting a job—than have them tell lies about it. What about someone who is convicted of drink-driving? I see that is an offence that a person could end up being able to say did not happen. There may well be people in this House who feel that would be a good thing to be concealed. Unfortunately, some people in the public will think that that is what this bill is all about—that is, concealing those sorts of things. We should not be saying that. When someone who goes for a taxi driver’s licence happens to have a drink-driving conviction 8 or 9 years ago, that is probably relevant. Certainly, as a lawyer I would say that most people who end up with drink-driving convictions—and certainly with more than one conviction—have a very serious problem. To be able to hide that is not in the best interests of New Zealand, and it is certainly not in the best interests of those people.

I will not, and I cannot, support this sort of bill. It is all about interpretation—not deeming things to have never happened, but to be now concealed. The thought that later on in the bill—and when we get to that stage no doubt we will talk about it further—people who tell the truth will be subject to being fined for telling the truth, is dreadful. Any employer should be able to ask a person whether he or she has any criminal convictions and to be told truthfully and honestly yes or no. This bill will protect thieves. Many people who are thieves continue to steal time and time again, whenever they get the opportunity. People who are thieves will do that, because they are dishonest.

I rise on behalf of United Future to speak against this bill. As we have heard many times already, this bill is about lying. Unfortunately, in this country we need to be more encouraging of those who would be truthful. When one is an employer and interviewing staff, with all the responsibilities that employers have now, it will be criminal that we can ask a straight question of a person standing before us applying for a job, and that person will now be legally entitled to lie under the bill.

What I have learnt about lying—and I am sure that we all would have lied over the years—is that the more one does it, the easier it becomes. If we are going to encourage people to lie about a criminal conviction, it will then be far easier for those people to lie about most other areas in their lives. Yet as a father with young children, if I can teach my children to tell the truth and show them that by telling the truth they will be adequately rewarded, we will build a far better society.

As an employer I would have absolutely no problem at all with interviewing a person of about 25 or 30 years of age and asking that person whether he or she had any criminal convictions. If that person explained to me that 7 or 8 years ago, in his or her teenage years, he or she had committed a misdemeanour and had a criminal conviction, I would be far more likely to employ that person, because I could see he or she was telling me the truth and had regretted the incident.

Let us face it, incidents have happened in all of our lives that we have regretted, but we have learnt by our mistakes. I would not be one to punish those people for the mistakes they have made, because there would not be any member here who has not made mistakes in life. However, when we as a Government try to put in legislation that will encourage people to tell an untruth, I really wonder where we as a nation are going, and I will stand against it with everything we have.

I see in the bill that no certificate will be issued confirming that a person’s old convictions are to be concealed. Therefore, if a person who has had major convictions comes before me in a work situation and says: “No, I have no criminal convictions.”, as an employer, my question to the House is what grounds would I have to check on whether that person was telling me the truth or a lie. Of course, if that person is telling me a lie, how different is he or she to the person who has a clean-slate record? Is that person not also telling me a lie?

What is the problem? Will the big lie be the problem, instead of the little lie? Get real! We are getting too far away from common sense here for me. The truth is the truth. If people tell the truth, No. 1, they do not have to remember what they said, because it is the truth. But if one tells a lie to a person who happens to know another person, and one does not know that they know each other, and that person tells the other person what he or she was told, one starts, as they say, to smell a rat and ask: “What is going on here?” So I have major concerns with areas like that.

Trust must be built back into society. Trust must be built between the people who are employing and those who are being employed, even on a voluntary basis. Whether it is voluntary employment in a day-care centre or wherever, employers must have trust that when they ask a straight question, they will get a straight answer. So when we bring forth legislation that no longer allows that, and employers interviewing people know that there is an element of society out there that has been given legal permission to lie, I certainly have great concerns about that. United Future will not be supporting this bill.

I move, That the question be now put.

It is interesting that today we are debating a Government bill, and the only contribution from Government members has been to stand and move a closure motion on what I would have considered, from a Government’s point of view, to be very important legislation. This is the first Committee stage debate today, after the House has resumed following a 3-week adjournment, and what do Government members do? They do not stand and debate the merits of the bill, because they know in their own minds that this bill is flawed. Previous speakers have said that this bill is about lying. This bill encourages lying. It does not do away with the conviction. It does not expunge the conviction someone has.

💬 Judith Collins: Read the bill.

If members read the bill, as my colleague says, they would realise that there is no expungement provision. All it does is wipe the slate clean, hide the conviction under the carpet for a little while, and then hope that everything will be OK. The important thing to remember is that New Zealanders are not as gullible as that. At the end of the day, people who will be employing staff will want to know exactly what the position is. But with a clean-slate recipient, as an employer can I ask that person whether he or she has any convictions? He or she will be able to say: “No”, because under Part 2, when we get to it, an employer cannot ask those sorts of questions.

I will talk about that when we get to Part 2. The point is that clause 3(2), and this is the point where I finished in the previous debate, states: “If an individual satisfies the relevant eligibility criteria—(a) he or she is deemed …”. One would expect that that meant that the individual was able to hide behind the clause and say “No”, on the basis of clause 3(2), and that by saying that, a conviction no longer existed. Of course, in a legal sense that is absolute nonsense. We will be discussing that later on in Part 2. An employer asking the question: “Have you ever had a conviction?” is faced with a dilemma. After 7 years, if a prospective employee has a clean slate, he or she will be able to say: “No, I haven’t.”

When I employ people, I am interested in honesty. I want to give an example of somebody I employed who took advantage of me. Because I was going away, I wrote out a cheque that my employees would be able to use in an emergency, and I signed it. I was probably wrong to do that, but I trusted the people who worked for me. I should be able to do that. When I came back, the cheque had gone. It was not until I got my bank statement that I saw a cheque had been written for $932. There was no account to justify a cheque for $932. When I went to the bank to find out who had presented the cheque, I found it was one of my employees. What had the employee done with the money? That person had moved into a flat and paid a bond. The person had paid rent in advance, and paid the current rent—

💬 Mark Peck: In your flat?

In a flat that the person was renting. The situation here is that that person took advantage of me and of a privileged position. I had put the person in a position of trust, and that person had lied about it to me. It was only through my going to my bank that I was able to discern it. Under this bill, after 7 years that person will be able to hide the fact that he or she had his or her fingers in the till and was able to deceive somebody. That is why National is opposed to this bill.

I move, That the question be now put.