Criminal Records (Clean Slate) Bill

National opposes the Criminal Records (Clean Slate) Bill, and in part, but only in small part, it is because the title is so inappropriate and improper. Of course, this legislation, as earlier speakers have said, is a mandate to lie. It does not, on any basis, expunge convictions, because as other members have said, the convictions are only concealed and can spring up again, either through inadvertent disclosure, or because a person seeks a particular type of employment, or because a person reoffends.

I am glad, and I am sure that National is glad, that Minister Goff was prepared to make a contribution to this debate. In that regard he stood in stark contrast to the Minister in charge of the bill, Mr Barker, who sat silently and sullenly, not prepared to contribute to this so-called centrepiece of the Government’s criminal rehabilitation strategy. I am glad Mr Goff did speak, because it gave members a really good opportunity to assess how little he knew about this legislation.

One of the things he spoke about briefly was the rehabilitation period. He said that the 7-year period of rehabilitation fixed in the legislation was a period of non-offending.

💬 Hon Phil Goff: No, I did not. I said non-conviction.

That is right. The Minister is intervening now to make a further correction, and one he should have made at the outset. It is a period of non-conviction.

💬 Hon Phil Goff: I raise a point of order, Mr Chairperson. I will not be directly misrepresented by that member. I make it clear for the Hansard that I said “not convicted”.

The CHAIRPERSON (H V Ross Robertson): The Minister has an opportunity at the end of Mr Worth’s contribution to take a call on misrepresentation. He cannot do so now.

I think if the Minister looks back at his Hansard, he will find that he did make the slip to which I have drawn his attention. But then, of course, he went on to plop into another trap, because he read to us a letter from an unidentified correspondent—an atypical letter, I would say, for reasons I will come to—and failed to draw to the attention of members that persons who travel have an obligation to disclose any criminal convictions at the foreign border. It is very much, I would suggest, the low point of this Government when legislation of this type is passed through Parliament simply by dint of numbers.

This bill does create some exceptions, and I think it is a great pity that they are so limited. I suggest, for example, that when a teacher is applying for a job, it is a relevant piece of information that he or she should disclose any criminal convictions. I believe that there is a legitimate public interest in a prospective teacher—or an established teacher—seeking a position, being required to disclose, through the New Zealand Teachers Council, the existence of those convictions. As a result, the system might decide to disregard those convictions, but at least the system should know of them.

It is similarly the case that where a person applies for a post that involves handling money, or some other position of trust, he or she should be required to disclose his or her convictions—particularly if those convictions relate to a matter of honesty. Yet the Government has decided that it is acceptable for people to take employment in both the public and private sectors who may have a string of convictions for dishonesty, and that they need not disclose those convictions. That is why when Government members assert that this bill is all about youthful indiscretions, they run a very clear risk of misleading us all. The reality is that the threshold for non-disclosure is reached only in respect of custodial sentences.

This bill now involves Parliament in lying. I use that word knowingly and carefully. There is no clean slate. The commentary from the Justice and Electoral Committee says there is no clean slate. The provisions do not provide for a clean slate, yet the title of this bill says “Clean Slate”. This bill should not proceed under this title. Nothing of a clean slate is created; there is simply concealment of a record.

The Minister may not have realised it. By reading the letter he received, the Minister, in his tear-jerking way, misled this Committee in three different respects.

Sitting suspended from 6 p.m. to 7.30 p.m.

Just before we broke for dinner at 6 o’clock I was referring to the address that the Minister in the chair, Mr Phil Goff, gave on this Criminal Records (Clean Slate) Bill. I was referring to the mis-description—to put it as its most kind—the inaccuracy, and the untruthfulness of this title. This bill does not create a clean slate. It instructs people to lie about their records. The records remain intact. The bill instructs Government departments to lie about the records, and then it provides penalties for people who ask about criminal records.

Mr Goff read us a tear-jerking letter from a person who many, many years ago had shoplifted. Mr Goff asked why we should not have compassion for someone who offended once but has since led a blameless life. Why not indeed? Most of us do have compassion. Almost every New Zealander would tell that poor woman: “Don’t worry. You have led a blameless life. We don’t hold it against you.” And they do not. I have employed people. I have become a partner in my businesses with people who have committed offences in their youth but who have since led a blameless life. I believe that most New Zealanders do that. That is true compassion.

But this bill, I say to Mr Goff, does not conceal the records of people who have offended once and since led a blameless life. This bill conceals the records of people who have offended any number of times. The average New Zealand prisoner goes to prison for the first time after committing nine offences. I tell the Minister that this bill conceals all the previous eight offences. It ceases to conceal only when people have reached their ninth offence, or at least reached the point of being sent to prison. To get an average of nine offences, there are probably some offenders who might have 10 or 20 offences before they go to prison. So it is not about offending once and then leading a blameless life.

Let us look at the “blameless life” claim. This bill will conceal the record of someone who has committed any number of offences, gone to Australia, spent time in prison, gone anywhere else in the world, committed any number of offences, come back, and led anything but a blameless life. But if they have managed to avoid being convicted—and it does not matter how many times they have been charged—then the record gets concealed. I ask Mr Goff: where is the blameless life in that?

Mr Goff invited the House to comment on the letter. I am commenting on the letter. I hope he will take a call and explain why it is that he is supporting a bill that claims to provide a clean slate, when it does not. The Minister has claimed that the bill provides for people who have led a blameless life after one offence, when it does not. There is no maximum number of offences that would disqualify a person from claiming the benefit of this bill. That provision was proposed in the Justice and Electoral Committee but the Minister’s officials, I assume on instruction, discouraged any of those kinds of amendments that would have made this less offensive legislation. In fact, the Government has just voted against amendments that would have made this less offensive legislation.

This bill is utterly unnecessary. There is no evidence that the people who have written to the Minister asking to have their records concealed have had what the Minister called a life sentence. How offensive that is to people in this country who are asking that a life sentence actually mean something! The Minister compares a genuine life sentence, which connotes seriousness of offending and proper punishment, with the fact that someone is embarrassed about a past offence. How can there be any comparison? That speaks volumes about the Labour Government’s attitude to crime and punishment and criminal justice.

I have to say that I had not intended speaking on this bill, because I thought the work done by my colleague Dail Jones was sterling work and we needed to add no further comment. But having sat in my office and listened to the heartrending, bleating speech made by the Minister on behalf of some correspondent, I was moved to get down here and put a few things on record.

In Mr Goff’s speech, he implied that there were many members of this House who themselves might have committed childhood or youthful indiscretions, who would take advantage of this bill. In saying so, he threw a slur across the House that implied various members of this House had criminal convictions and needed this bill. Well, I am one member who does have a criminal conviction. Many people whom I have been honest and upfront with have stated that my conviction is one of youthful indiscretion—that is, of having carnal knowledge when I was a 17 to 18-year-old soldier. But is it not ironic that when I look at the Minister’s “Dishonesty Bill”—that is what I would name it; I would call it the “Right to Lie Bill”—and at what is meant by “specified offence”, I see that my youthful indiscretion is not one that is covered by this Minister’s bill.

So I dare say he speaks out both sides of his mouth. He says that youthful indiscretions committed when one is a young person are not things that should be brought up later in life to hound a person and impede that person’s progress through life—the person having led a crime-free life since then. He says that out of one side of his mouth, while out of the other side he fails to point out that the very offence I was convicted of as a young man would not be concealed.

I would love for the Minister to talk to me now about what he considers to be a youthful indiscretion. Is a youthful indiscretion a 15-year-old boy having sex with a 15-year-old girl? I ask the Minister: is that not a youthful indiscretion? Is that a heinous crime that is forever to be hung around that young boy’s neck for the rest of his life—

💬 Jill Pettis: Does the member wear it as a badge of honour?

—because the puritans over there, and Jill Pettis is one of them in the Labour caucus, cannot forgive the youthful indiscretion of a 15-year-old boy who is in love with a 15-year-old girl? Oh, no! We love to have a dollar each way.

💬 Stephen Franks: She’s normal!

But she is normal. So I do not accept the Minister’s explanation. I think it is playing with words. This bill should be titled the “Right to Lie Bill”.

I will tell the Minister why I am voting against this bill. I have been an employer. I have been responsible for vetting CVs of people I was going to take into my employ to handle money, handle customers, deal with children, and look after mothers. I absolutely believe I had a right to know the background of each individual who applied for a job. If I then made a value judgment that the crime that person fessed up to was not one worthy of consideration, given his or her record since then or the work he or she was going to be doing, then it was a decision I would make. I would decide whether that person would be employed. But I would not like to have the person stand in front of me and lie barefaced to me with the protection of this legislation, and then find out later on that in actual fact he or she had been employed somewhere else and had been caught with a hand in the till there—and I had just suffered the same consequences. That is not good for this country.

My foster parents often told me a simple little saying. They used to say: “Honesty is the best policy.” That is what I would leave for this Government to consider. Should we disclose these facts to people today or should we not? I believe that honesty is the best policy. Look at what happened to me. My personal information was disclosed to the media far and wide throughout this land. It was used to try to discredit me. I could have lied to Mr Peters when I became a candidate; I could have lied to the president of my party; I could have lied to everybody. Under this bill, I could—if my offence was covered; in actual fact it is not—have had criminal offences I did not disclose. At the end of the day when they are disclosed—because the public information is out there in the newspapers—who loses? Whose credibility is then destroyed? Actually, it is the credibility of two: one would be myself, and the other would be the actual system and the process. I do not believe in any way, shape, or form that this bill should be passed, and that is why I will be voting against it.

Thank you for the opportunity, finally, to put the case for National that this bill is a complete and an utter nonsense. I say that because during other speeches in the Committee stage, it was stated that this bill allows somebody to lie about his or her past. As the previous speaker said, honesty is the best policy. The Law Society’s submission stated this: “The bill does not purport to expunge a conviction, but rather to provide a framework whereby the existence of a conviction is suppressed. The bill doesn’t purport to remove the fact of a conviction from someone’s record, but rather enables the convicted individual not to disclose a conviction and/or precludes particular individuals or entities from requiring or obtaining such disclosure.” To me, “clean slate” means exactly that: the record is wiped clean. If the bill were to state that a conviction is wiped clean and is struck from the record as if nothing had ever happened, then that would be a different story. But this bill does not do that. It does not expunge the conviction; the conviction is still there.

The bill allows somebody with a conviction to say lawfully that he or she does not have a conviction, and prospective employers will not be able to ask questions in order to ascertain the background of a person they may take on. In fact, the bill legalises perjury. That is one thing that the Opposition, and National in particular, has great difficulty with. We believe that for people to take an honest approach to business is far better than for them to be able to say they do not have a conviction. Let us be open and let us lay the cards on the table. The bill legalises perjury, and that is something we find to be offensive. Somebody will be able to hide his or her conviction for a minor dishonesty offence that may have occurred—but remembering that even major offences may have occurred that did not require a custodial sentence. There could be a conviction for assault. It could be that someone had his or her fingers in the till, and I gave an example earlier on of an employee I had who wrote out a cheque and tried to embezzle money from me. It could be that a person has committed an assault or a minor theft, or whatever the offence is. But at the end of the day a prospective employer should be able to ask about that and to lay on the table exactly what the requirements are.

Does the employer not have any rights in this business? The Minister may like to answer that question. What about the rights of the employer? This bill states that the employer has absolutely no rights and that all the rights belong to the employee, as we see in so many other pieces of legislation. If it is to be the case that an employee can hide his or her past convictions, what would occur if someone was to say he or she had a qualification that he or she did not have? If that qualification got the person the job because it made the person’s CV look better than it was, if that position were to be found out the person could well get the sack. Contrary to that, if a person has a conviction, then he or she is able to hide it, and as we have said, we find that that is completely unacceptable. When we look at the prospects of someone who wants to travel, especially to countries like the United States, we see there is absolutely no way such countries will let people in who have committed offences. That is an issue for anybody who wishes to travel overseas.

Thank you for the Committee’s indulgence. I do appreciate this call as I was not able to get a call on earlier parts in the debate. I want to continue on with a couple of observations I have made. This bill, and we are discussing the title, could truly be called the “Lying in Unison Bill”, the “Right to Perjure Oneself Bill”, or the “Great Green Con Job Bill”.

The reason the bill is here is that Labour is allowing itself to be forced into a situation promoted by the Greens. When I say that this legislation could be called the “Great Green Con Job Bill”, I ask: is it not interesting that today the Green MPs were out on the forecourt of Parliament telling students that the most important thing out there to them was getting students an allowance? Yet the only thing they have really pursued to fruition in this House is this sort of stuff: the Criminal Records (Clean Slate) Bill, advocacy for legalising marijuana, and cycleways and footpaths from one end of the country to the other, which probably will not be used by anyone except Mrs Brown’s cat and two or three kiddies on their bikes, maybe. It is like the cycleway that will go between Rangiora and Kaiapoi. I do not know who the heck rides a bike down there; nobody is stupid enough to. But it will be a very expensive, unusable, not used road when the very things the Greens could have been concentrating on were student allowances, as they told everybody today they were but have not been. That is why I say that this bill could be called the “Great Green Con Job Bill”.

I point out to the Minister that when we talk about people who will be able to conceal their convictions, and consider the comments made previously about the insignificant nature of those convictions, we should get it firmly in our heads. Mr Franks said that the average inmate who gets his first jail term has committed nine previous offences. He said that to get an average of nine offences they might well have committed 11, 15, or 16. The Minister should take on board that many youth offenders we are dealing with in cities today—the recidivist offenders—who finally get a conviction, have between 40 and 80 contacts with the police for breaking the law. They have had between 40 and 80 contacts with various youth agencies for criminal behaviour before they ever get charged, let alone get convicted, let alone get a jail term.

So what I will be faced with, and what every other small businessman out there will be faced with, is not only having to deal with the vagaries of the youth justice system that already conceals through the Privacy Act and through the Youth Court—

💬 Stephen Franks: Suppression.

The laws of suppression already conceal their 40 to 80 conflicts with the law for breaking the law, but now this legislation will conceal the convictions they had subsequent to that—unless, of course, they have finally clocked up so many they have to go to jail. I say God help any small employer who runs foul of this, because he will have no recompense. The Minister will not be there saying: “We’re really sorry. We know you’ve had embezzlement, and we know your garage has been ripped off and half a dozen cars stolen. Yes, we know this person had a track record.” He will not be there to help the businessman pay his new, increased insurance levies. He will not be there to help that business recover loss. He will not be there to counsel staff who will lose their jobs because the business has suffered embezzlement. He will be sitting back here congratulating himself for passing this “Lying in Unison Bill”.

That is what the bill is. It is touchy, feel good, fluffy legislation that does only one thing. It promotes lying, legalises lying, and dissuades people from the simple policy that most educated people are brought up to accept—that is, that honesty is the best policy.

Every day in this House and in select committees we are dealing with youth crime. We know the problems we are facing there. Any legislation passed through this House that enables people to conceal crimes that I believe that an employer, trust, or social welfare agency has a right to know about and make a valued judgment on, is wrong. Further, I ask what it is about the social welfare system, the public service, and businessmen that the Minister does not trust. Why can he not let them make that valued decision, as they rightly should be allowed to do?

The question was put that the amendment set out on Supplementary Order Paper 175 in the name of Murray Smith to clause 1 be agreed to.