Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill

I have a lot to say on Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I think Part 2 demonstrates the far-reaching effect of an issue that has been the source of quite a lot of discussion throughout the debate. That issue is the extension to capture 12 and 13-year-olds in the Act, because that crosses over into the Criminal Investigations (Bodily Samples) Act, which we find amended in Part 2, and it has some impact on that Act. Those on the Justice and Electoral Committee will know that we have only recently made significant changes to the Criminal Investigations (Bodily Samples) Act. The way that children and young people are captured in the Act was the source of quite a lot of discussion. I want to touch on that in my contribution. As Chester Borrows, a member of the Social Services Committee, has pointed out, it was his view that the provisions around 12 and 13-year-olds being able to go through the Youth Court were essentially a matter of filtering, and a matter of expediency. But I think this part points out that the provisions make much more of an impact than that.

Part 2 cross-references section 8(1A) of the Criminal Investigations (Bodily Samples) Act 1995. I want to quickly just reflect on that section, which reads: “However, a suspect who is a child or was a child at the time an offence in relation to which he or she may not be lawfully prosecuted (being an indictable offence other than murder or manslaughter) was committed, may consent to the taking of a buccal sample as a result of a Part 2A request.” What we see there is that there are elements of compulsion available to police for the taking of buccal samples for offences such as murder and manslaughter, because we acknowledge that as it stands the 12 and 13-year-olds charged with those offences in our system are already able to be taken through a higher level of court. That section essentially says that for everything else compulsion does not apply; it is voluntary.

Then we come to Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I do not recall there being great lengths of discussion in the select committee about this part, but I want to talk about what is implied by this part. If we look at it we see that replacement clause 41(1A) of the bill says that “However a suspect may, in relation to an indictable offence, consent to the taking of a buccal sample as a result of a Part 2A request if the subject is a child, or was a child, at the time the offence is alleged to have been committed, and cannot lawfully be prosecuted in relation to that offence, because it is not an offence of any of the following kinds:”. Before, in section 8(1A) of the Criminal Investigations (Bodily Samples) Act, we had just the offences of murder or manslaughter. Now, we have an indictable offence as well. Also, going on, are two more criteria, in clause 41(1A)(i) and (ii) of the bill: “that is alleged to have been committed when the suspect was aged 12 or 13 years; and for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:”. I want to seek some clarity from the Minister for Social Development and Employment, Paula Bennett, on that clause. I accept that I may have misinterpreted it here, but I do not believe I have. Prior to that we had the case where compulsion in respect of taking buccal samples could be applied for murder and manslaughter. Now we are saying that—outside of murder, manslaughter, and indictable offences with a penalty of up to 14 years—for everything else it is voluntary, but, within that, compulsion can be applied to 12 and 13-year-olds. That is the only assumption that we can make by the reference in this Part 2.

So I would like to seek some clarity from the Minister on that. The reason for that is this: when we discussed the bodily samples bill in the Justice and Electoral Committee the direction from the Minister of Justice was clear. That was that he held grave concerns about the creep that could have occurred on the basis of that legislation. Direct reference was made to the idea that we do not want samples being taken in the backs of police cars from young children without guardians who are there or available. We went to great lengths in that bill to make sure that we cross-referenced the Children, Young Persons, and Their Families Act and made sure that we carried over the provisions that apply to an interview situation where a guardian or a caregiver must be given the opportunity to be present. We carried over those provisions for certain classes of buccal samples when taken from young people. It seems to me that we did not discuss again those same kinds of protection for our 12 and 13-year-olds in relation to the broadening of that power for those groups. I have great concerns about that. I ask the Minister to clarify the intention, and also whether the change was discussed with the Minister of Justice. I certainly think it is a clause and a proposal that would have been gratefully received and discussed by the Justice and Electoral Committee when we originally discussed the bodily samples legislation. I think we would have had something quite substantive to say on that extension, that broadening of scope and power.

I guess, again, that that all comes back to the flow-on, as I mentioned, of the broadening out of the way we treat our children in our legislation, because this is not just a filtering or a streamlining of our Youth Court and Family Court processes; it has a much broader effect. The importance of this clause is reflected in the fact that we now, as a consequence, are in breach of our obligations under the UN Convention on the Rights of the Child. I would like to hear the Minister’s thoughts on the impact of those changes on that convention, because—very recently, I know—the Government had an opportunity to appear before the United Nations Human Rights Council in Geneva, but did not mention this bill; it did not mention Part 1, let alone Part 2. Not only were we already in breach, based on the way that our 17-year-olds are treated in the youth justice system, but rather than fixing that, the Government broadened the whole thing out and brought in 12 and 13-year-olds, just for good measure. They are children; as we have continually highlighted throughout this debate, they are still children. That is what I would like to put to the Minister.

The reason why the UN, obviously, has a broad definition of whom it considers to be children in that convention and why it is important that they be treated differently is based on research and on evidence. It is based around the ideas of brain development, the impact of young people being in what is deemed a pseudo-adult criminal justice system, and the long-term impact on those children being exposed to an overtly punitive form of criminal justice. I would like to hear the Minister’s reflection on our obligations, because Part 2, I think, is in direct contravention of that convention, as well. I know, for instance, that Simon Power, either in the lead-up to, or after his appearance before, the United Nations Human Rights Council in Geneva, stated—and I think this is a good quote, because I do agree—“It’s important to front up with our own situation so that we can credibly discuss the challenges facing other countries.” There is an acknowledgment there by the Minister of Justice that in order to maintain our credibility on the international stage we not only need to be present and be ready to be scrutinised but also have to hold our own in this forum. We need to make sure that we maintain the bar set by the United Nations. In many other respects we do, but this is a fundamental failing. I think that it is slightly disingenuous to have said that we can credibly discuss the challenges facing other countries only if we front up with our own, and then not even discuss what we were debating at that time back in the New Zealand Parliament and in the Social Services Committee as part of the parliamentary process—these fundamental changes made through the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill.

I ask the Minister for Social Development and Employment whether she would not mind addressing the points I have raised around the Criminal Investigations (Bodily Samples) Act and the impact of changes in that legislation, because it is reasonably detailed. The changes there mainly come through implication rather than direct reference, so I would like a little more clarity around those provisions. I also would like to know what discussions were had with the Minister of Justice and the Ministry of Justice on those provisions, because I think, quite rightly, that there have been concerns about the very swift broadening of powers around bodily samples and DNA testing in New Zealand.

To be clear about Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill , clause 41 amends sections 8, 18(1), 23(1), and 24C of the Criminal Investigations (Bodily Samples) Act 1995. The amendments update the circumstances when children may be required or may consent to give bodily samples, in order to reflect the changes to the principal Act proposed by the bill.

Clause 42 amends section 142A of the Criminal Justice Act 1985. The amendment relates to a child who is serving a sentence of imprisonment, whether that sentence was imposed before or after the commencement of this legislation. It ensures that, after the commencement of this legislation, the child may, while he or she still is a child, be detained under that sentence only in an approved residence as defined under the principal Act.

This part of the bill is very narrow. It applies directly to those matters. I would be interested to hear whether Labour will support this part. It did support the original Criminal Investigations (Bodily Samples) Amendment Bill, and Part 2 merely brings the Act into line with the changes in this bill. Part 2 is a narrow part. We have debated the main part of the bill. I think the clauses in Part 2 are important additions to the bill that we must do.

I thank the Minister for Social Development and Employment for her contribution, but I am afraid it did not actually address the issues that my colleague Jacinda Ardern had asked about with regard to her concerns around this part of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. In particular, the Minister failed to address the concerns about the United Nations Convention on the Rights of the Child, which in my reading of Part 2 of this bill does cause New Zealand some grief in terms of its commitments in that regard. I have had the opportunity to contribute to this debate in the earlier parts of the Committee stage, and in the main I was very focused on whether the boot camp model was the right pathway to go down for our young people who are in trouble with the justice system and in trouble in the course of their lives, in particular thinking about the very good model, Te Hurihanga, which has been established in Hamilton, and which this Government is closing down. That seems to be a much better way to go in order to deal with these issues.

When it comes to Part 2 of this bill, I am interested in gaining some understanding from the Minister about what the implications are for clause 42, which amends the Criminal Justice Act, and amends it in a way that has children subject to our youth justice facilities. I am particularly keen to know what that means in terms of residential facilities when it comes to 12 and 13-year-olds. I have to say that I am interested from a personal perspective as well, because when I read this bill as a member of Parliament I also cannot help but read this as a mother. I cannot separate the two sometimes, and I think that is probably a good thing. That is why we have women in this Chamber, because it is important that we wear all of those hats when we are reading legislation. I am the mother of a 12-year-old. I read this part of the bill and wonder about the rights of my 12-year-old with regard to having compulsory samples taken. I tell members it is not something that I relish the idea of as a parent. What are the—

💬 Hon Member: It’s taking a cheek swab.

Mr Borrows seems to think that he has the answer to the anxiety that parents might have about the rights of children at the ages of 12 and 13 years. I am interested that at least Part 2 does call these 12 and 13-year-olds “children”, because they are, and there are other parts of this bill that pretend otherwise. We are talking about children who are 12 and 13 years old. For example, if my son were in this position—if he were accused of a crime—would I be with him? Would there be a requirement for the parents to be informed? Would the parents need to give consent for bodily samples to be taken from a 12-year-old? Those are things that I think New Zealand parents will be contemplating as they hear this debate, because they are very important issues to consider. Certainly, being the mother of a 12-year-old, I do not believe that he would be in a position to make legal decisions about his rights in this regard. Those are the sorts of things that I would like to hear in a more succinct form from the Minister.

The Minister stood up and read out perfectly well what we can all see in front of us. We can all see which sections of which acts will be amended, but what we are really interested in is what this means with regard to our international obligations; we want to know what discussions have been had with other Ministers with regard to this, and we want to know exactly what this means in terms of children and the way they are treated.

I started by talking about residential facilities and that is where I want to end my contribution. For example, the Te Hurihanga facility in Hamilton is an 8-bed facility. I want to know whether 12-year-olds would be in a residential facility staying overnight with 24-year-olds.

I am pleased to take a short call on Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill, in order to reflect, as my colleagues have done, on the implications from our perspective of the major change that this bill brings forward: that is, the treatment of 12 to 13-year-olds. We are discussing children here. We know the Minister for Social Development and Employment has been very reluctant to use the word children when referring to 12 to 13-year-olds, but that is what they are. When we put them into a criminal jurisdiction like the Youth Court, then it has a whole series of implications.

This part identifies again some of the concerns Labour members have. We are discussing children who are 12 and 13 years of age, and who will be asked to provide bodily samples, I assume voluntarily. Once collected, the sample is kept. All the uses and abuses of those samples are possible.

💬 Todd McClay: What abuses? Give us an example.

I say to Mr McClay that the major one is that it will give a dog a bad name. When a 12-year-old does stray and eventually comes back to the fold, those samples are kept for a long time, and one does not know how those samples will be used or abused.

💬 Todd McClay: It sounds like conspiracy theory.

The member ought to be an advocate for 12-year-olds and protect their rights. This part does not do that, and this bill does not do that. Here is an example of what is likely to happen to those children: they will be exposed to this bodily samples regime. This part of the bill opens them up to it. Where are the protections for 12 and 13-year-olds? New Zealand will be in breach of international conventions. What discussions have there been around that? We have not heard any of those arguments. The Minister may want to take a call to give us those kinds of guarantees.

💬 Todd McClay: The information will be misused.

I say to Mr McClay that he knows that these issues were not discussed at any length in the Social Services Committee. It was taken for granted, but now when we come back and have a look at it in the totality of what this bill provides, we see we have a major glitch that ought to be addressed, and that ought to be talked about. What are the explanations we will provide for the responsibilities we have in terms of our United Nations obligations? They have not been reported, they have not been discussed, and they have not been identified. They were not discussed in the select committee, and here we are again with the risks of exposing 12 to13-year-olds. We are told that it is for a small number, but we do not know what the number will be under this regime. We believe that those children ought to have those protections, but the protections are not there at the moment. So what is the real purpose of this legislation? How will the Minister address our United Nations obligations to protect children?

One also wonders what other implications there are for the 12 to 13-year-olds who will be caught by the regime and by this legislation. What might they be? Which ones have been talked about? The present Minister in the chair, the Hon Judith Collins, might want to explain some of those. In the end, these are ethical questions, as well. They are ethical questions that accrue to this aspect of this bill, and they have not been answered. They have not been addressed. Minister Bennett, in the speeches she has given so far, has not been willing to engage in a philosophical or ethical justification for these provisions, but here is another opportunity for the Minister in the chair, and perhaps for other speakers on the other side of the Chamber, to address the question and convince us that the protections for children—because that is what they are—that they deserve and demand will be accorded.

Indeed, those are the obligations we have, and we have given guarantees in our own child protection, as well as in the United Nations rules and conventions we have signed up to in New Zealand, that we need to address. I would like to hear some explanation about why this legislation is necessary, and how it really protects the needs of very young children. I look forward to those explanations. Thank you.

I rise on behalf of the Green Party to oppose Part 2 for many of the reasons that have been outlined by my Labour colleagues. I think that the United Nations Convention on the Rights of the Child is very relevant here, because the essence of that convention is that the rights and welfare of children come first. If we apply that in this situation to 12 and 13-year-olds, the imposition of a regime of DNA testing and bodily samples is not putting the rights of children first.

We can look at this in perspective. It was not long ago that we did not have any DNA testing. When the select committee discussed the bill that Part 2 is amending, it was said quite clearly by a number of jurisdictions, and by the Privacy Commissioner, that taking bodily samples of people’s DNA is particularly intrusive, much more so than is taking fingerprints or other forms of biometric testing. It is an intrusion on the privacy of the person. If we look at it in the context that this has just come in, then it is very intrusive. We have not had the taking of body samples in place for too long; I ask why we need it now for children.

The Green Party opposed the original bill that effectively brought in compulsory bodily sample extraction. I ask why we now have to bring it right down to include children—12 and 13-year-olds. There is no argument for it to be brought to that level. A provision in the bill talks about suspects, and it should be borne in mind that we do not actually need to be charged to have a bodily sample taken, according to the original legislation that this bill is amending; one need just be a police suspect. The police have a couple of months before they can charge a person, or decide not to, after they have taken the bodily sample.

Then there is the question about whether a 12 or 13-year-old is able to give consent. When we are talking about 12 and 13-year-olds, are we really talking about consent? For example, a 12-year-old is bundled into the back of a police car and is taken to the station and asked whether he or she will consent to a body sample being taken. In any rational analysis, there is no consent there—99 percent of the time you do what the police say, and there might be a few implications that if you do not, there might be a few downsides for you and your family.

The CHAIRPERSON (Lindsay Tisch): The member is bringing the Chair into the debate.

I am sorry, Mr Chairman. I am talking about “you” in the generic sense, but I should not use the word. I think that is the problem with a lot of legislation in this House. We keep running down the track of having more and more restrictions on people’s rights. Sure, people can argue that there might be an upside to it, and that there might be a really bad 12-year-old and that this particular provision will enable a bodily sample to be given. That person may at some point in the future be convicted, and that provision will be good. But if we put it in the balance of what is happening to children in this society—the criminalisation of children—and adding the extraction of bodily samples from them in essentially a forced way, then I ask which is the greater problem for society. Is it the occasional child who might get off when he or she should be convicted—the one in one thousand or whatever—or is it the intrusion that this measure will cause and the infringement on children’s rights that is contrary to all our international commitments to the United Nations Convention on the Rights of the Child? Thank you.

I will start off my call on Part 2 by foreshadowing two amendments that Labour will put forward. It is important to say that Labour has put forward these amendments to Part 2 based on previous rulings in the accident compensation legislation about where these matters need to be raised. The Chairperson previously ruled that expiry provisions must be within a part of the bill, not with the preliminary provisions, so we are following that ruling, and these amendments are to be inserted as a new clause in Part 2.

The two amendments are very different. The first amendment would mean that the entire Act expires by way of a sunset clause, and the second amendment would mean that only Part 2 of this legislation expires. I very much look forward to the ACT Party’s support for these amendments, as the ACT Party has regularly called for legislation and regulations to have sunset clauses and expiry dates. In this instance we agree with those members, and we look forward to having a majority of the Committee in favour of these sunset clauses.

When it comes to Part 2, I urge the Minister in the chair, the Minister for Social Development and Employment, to answer some of the questions that are going unanswered in this debate. I would really appreciate getting some clarification over the compulsion in the taking of DNA samples from minors.

I have the Criminal Investigations (Bodily Samples) Act 1995 in front of me, which is the principal Act being amended by this part. A reading of the Act would imply that we can compulsorily take a sample from a 12 or 13-year-old in the case of murder or manslaughter, and my reading of the amendment that the Minister is putting forward in Part 2 is that that power will be extended to any indictable offence punishable by 14 years’ imprisonment or more. I would like the Minister’s clarification on that—that what we are doing here is saying that a DNA sample can be taken compulsorily from a 12 or 13-year-old for any indictable offence punishable by 14 years’ imprisonment or more. I do not think it is too much to ask for that clarification so that we know what we are passing here this evening.

This is of particular interest to me, and I gave many speeches on previous legislation amending the Criminal Investigations (Bodily Samples) Act, which this Government passed. That amending legislation extended the DNA database. The reason I did that was that although I am a great believer in DNA legislation—I am a great believer in its potential not just for convicting the guilty but for freeing people who have been wrongly convicted of crime—it does worry me that members of this Parliament do not seem to realise that although this technology has enormous potential, it also has enormous risk and restrictions in its ability. It is not foolproof by any stretch of the imagination.

Members of this Committee know how powerful DNA technology is. If 12 or 13-year-olds go to court and there is DNA evidence against them, it is very difficult to argue out of those charges. The fact is that all DNA evidence does is prove that someone’s DNA was at the scene of a crime. That is all it proves. It is up to the rest of the evidence to prove why someone’s DNA was there, that that person was there, and what that person was doing whilst there. There is an idea that, somehow, if someone’s DNA is found at a crime scene, it means that person committed the crime. I find it worrying that Government members have made those claims in terms of this legislation and in previous DNA legislation that we have passed. They have called DNA testing a fingerprint. It is not a fingerprint. A fingerprint is an entire thing.

When we come to DNA testing, we test only a few loci—something like 0.001 percent of someone’s DNA is tested when a DNA sample is taken. Although it is incredibly accurate, it is not a fingerprint. If we are to be extending again the use and the powers of this technology, I want to hear—and I am pleased the Minister of Justice has come to the Chamber—that Government members understand and are prepared to articulate not just the potential but the limitations of this technology.

As my colleague Lianne Dalziel has pointed out time and time again, it is not just that it is difficult to exonerate someone if he or she is innocent but has DNA against them; it is sometimes hard to get a conviction if the person does not have DNA evidence against them. People believe, because they watch CSI, that DNA is always there, in every single case—it is called the CSI effect amongst the science community. The belief is that if DNA is present, someone is guilty, and if it is not present, the person must be innocent. That is not true. With the greatest respect to the Minister in the chair, I say that when legislation like this extends the jurisdiction of this technology, I want to know that the Government understands those limitations.

I would like the Minister to stand and say yes, categorically, this bill is about the compulsory taking of DNA samples from 12 and 13-year-olds for any indictable offence punishable by 14 years’ or more imprisonment, and that has been extended from murder and manslaughter. That is actually why we have a Committee stage—it is the one opportunity for Opposition MPs to put questions about legislation directly to a Minister and to have them answered, particularly on legislation that is of such importance.

I sincerely hope, because my colleagues have told me that this question has not been answered, that the Minister is prepared to answer it and to clarify it, not just for members on this side of the Chamber but for the public of New Zealand, who want to know exactly what is being passed into law. I am very pleased to see that the Minister is seeking advice, and I hope we can get some clarification on this point so we can stop asking the same question. Until we get a response, I think it is very, very unfair of the Minister to just not answer our question and then move the closure motion, as the Government will inevitably try to do.

Previous speakers have said that we are talking about children here, and we are. These are 12 and 13-year-olds. I think anyone who has children, or anyone who was a 12 or 13-year-old, knows that we are talking about children. It is terrible when children do tragic and awful things. But I would also say that this legislation is about the taking of a DNA sample prior to someone being found guilty.

A person is innocent until proven guilty in this country, and we have to remind ourselves of that when we are talking about extending the jurisdiction of this technology, which is very powerful but comes with enormous risks. When we hear tub-thumping and chest-beating speeches from Government members about how the Government is tough on crime and is cracking down on these terrible, awful tiny horrors and terrors, we have to remind ourselves that in this country a person is innocent until proven guilty.

Just because someone has a DNA sample taken, it does not mean that he or she is guilty. Given the extension of these provisions to 12 and 13-year-olds who may well not have done anything wrong, I do not think it is too much to ask for the Minister in the chair to take a call and clarify for the Opposition members, and for the people of New Zealand, exactly what we are passing into law, because it is not clear.

I would also like the Minister, in her response to that question, to acknowledge that the Government, despite all the speeches that its members are giving, understands the limitations on this technology. I would like her to acknowledge that the Government will properly fund the Institute of Environmental Science and Research, which does the DNA testing through a contract with the police, and that it will train the police properly. In Victoria special squads had to be hired to forcibly take DNA samples from minors. They had to be trained in how to hold minors down in order to forcibly take a DNA sample.

I want the Minister to clarify that that may well be what we are talking about here. If it is, I ask whether training will take place so that we do not end up with endless complaints to the Independent Police Conduct Authority and endless litigation over what the police can and cannot do. The police need protection in this, as well. They need to know exactly what they can and cannot do in order to forcibly take a DNA sample—because we are extending this provision well beyond where the current law is at right now.

But, more important, is the question of whether the Institute of Environmental Science and Research will be properly funded not just for the cost of actually doing the extra DNA tests but for the administrative staff. The administrative staff receive the samples, log them in correctly, and continue the chain of custody that started with the police, and we need to ensure that we do not have any miscarriages of justice because of a lack of funding for the administrative functions that the institute carries out. This is not scaremongering; this has happened in other jurisdictions. In fact, this happened in New Zealand. A man was assaulted in Christchurch and he gave a DNA sample. He was then was charged with murder. But his alibi was that he was in Christchurch being assaulted at the time of the murder, so he could not possibly have done it.

I heard the Minister in the chair, the Hon Paula Bennett, minimise the reality of Part 2 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill by saying it follows on from a part that we have been debating at some length. I do not think that is a fair and reasonable response from the Minister. In fact, it sounded as though she was trying to put off having to respond to the questions that have been put to her, and was trying to encourage the Chair, perhaps, to close the debate on a significant part of the bill.

Nobody can ignore the fact that this bill has major consequences for our children. I still cannot hear the Minister use the word “children”. The reason that she cannot use that word is that she finds it really difficult to accept the fact that that is what the law she is responsible for administering says. She is responsible for administering the protection of our children. She has obligations under the United Nations Convention on the Rights of the Child, and she is completely ignoring them. That Minister has not responded to a single question that I asked the last time that we were debating this issue, that Jacinda Ardern asked earlier, and that Rajen Prasad and now Moana Mackey have asked. All of us have asked a series of questions around the implications of this legislation for New Zealand’s standing in front of the United Nations.

The Minister of Justice is in the Chamber. He has been in front of the United Nations, responding on our human rights standing. This bill was not even mentioned then, even though it was before the House when he appeared in front of the UN.

💬 Hon Steve Chadwick: What?

No, it was not even mentioned, yet it was before the House at the time. I want to know what the Minister’s advice has been from her officials about what New Zealand’s standing with the United Nations will be when this bill is passed into law. I think that she has had advice that this legislation breaches the United Nations Convention on the Rights of the Child. It seriously challenges that convention, not only in Part 1 but especially in Part 2, where we are dealing with compulsory DNA testing. I think the Minister should respond to that question.

I have had feedback on this debate. I do not often have people walking up to me at functions—

💬 Hon Simon Power: That’s OK.

No, they come up to me at functions—

💬 Hon Simon Power: Oh, generally speaking.

Generally speaking. But they do not often come up to me and say they thought I gave a really good speech in Parliament this week. I was surprised at that. I keep forgetting that we have Parliament TV now, and people channel hop and stop when they see something interesting. I asked one guy which speech he was referring to, because I had given quite a few speeches last week. He said it was the one about children and who was responsible for them. I had talked about the rights of the child to be protected from a whole lot of adverse effects, and had said that responsibility lay with their parents, their family, and also the wider community. I think that was said in response to some ridiculous comments from the ACT member David Garrett, who had been particularly repulsive in his comments about how young offenders were not children any more, because of the acts that they have committed. He was not prepared to look at the circumstances of that offending: the deprivation of those children, and, indeed, the damage that had been done to them in the environments in which they had grown up. He did not mind that; he did not seem to care about it.

The person who approached me fortunately turned out to be a constituent of mine. He was a long way away from the electorate, but I was very pleased to find out that my constituent thought that I had given a good speech. He said that while I was talking, he started to think about his son, who is 11½ years old. He suddenly realised that Parliament was debating the lowering of the age to one where his son, a child, would in 6 months’ time have criminal responsibility for offences other than murder and manslaughter. Again, I think people dwell on murder and manslaughter, but the law already allows for criminal responsibility to sit at that level for murder and manslaughter.

The other question that my constituent raised with me, and to which the Minister did not respond, was the question of who had murdered Michael Choy. The general public seems to believe that the person who took Michael Choy’s life was an individual called Bailey Junior Kurariki. But he was found guilty of manslaughter, along with Phillip Kaukasi, Riki Rāpira, and Joe Kaukasi. Those who actually took his life were Alexander Tokorua Peihopa and Whatarangi Rāwiri. Nobody in the House has ever heard of those other people. Why was Bailey Junior Kurariki held up to the public as the face of the youngest killer that this country has ever had? It was because of his age. The Minister wants to open up to that kind of pressure every other 12 and 13-year-old who falls off the track and ends up in that situation in relation to a wider range of offences.

Nobody is justifying what those children do. No one justifies what Bailey Junior Kurariki did in conjunction with his friends, who, I have to say, were older than him, and possibly led him astray. He was 12 years old when that offence happened. He rang the pizza place, and that was why the pizza was delivered to that house. He opened the door when the pizza arrived, but he has become this country’s entire focus as the individual who killed Michael Choy. It was not Bailey Junior Kurariki who killed Michael Choy, but he was involved in that offence. I think what the Minister has completely lost sight of is that in Part 2 we have the situation where DNA testing becomes part of the total package that follows a young person throughout the rest of his or her life. So in the case of Bailey Junior Kurariki, he would not only have that following him for the rest of his life; he has the outcome of the media—judge and jury, as they are—essentially finding him guilty of the most heinous offence that one could imagine.

I think that the Minister has not taken responsibility for ensuring that New Zealand is able to maintain its status with regard to the United Nations Convention on the Rights of the Child. It is amazing that the Minister of Justice has moved an amendment in a bill that he introduced only a week ago, to allow for a change to our adoption laws so that, in fact, we can actually sign up to one of the convention provisions that we have not been able to sign up to until now. I think that the Minister Paula Bennett does New Zealand a great disservice, first, by ignoring the fact that we are talking in this debate about children, and, second, by minimising the issue with regard to DNA testing.

The Minister can play on her BlackBerry as much as she likes, but it is not really fair that she is not participating in the debate. She is simply playing on her BlackBerry as she sits at the Table. I would have thought that is probably out of order, but there you go. That Minister is not prepared to participate in the debate in a reasonable way, and she misses the ultimate point, which is that she has an obligation to ensure that New Zealand is always able to provide for its obligations under the United Nations Convention on the Rights of the Child. Other Ministers stand in front of the United Nations and talk about our commitment to human rights, yet on this particular issue this Minister is prepared to stand back and say it is OK to hold children to account in the Youth Court for their actions, regardless of all of the reasons that might have brought them there, regardless of the damage that has occurred from their upbringing, and regardless of the lack of support that they have had from their family and their community.

These offenders are children. Part 2 is just as important as Part 1. Members on this side of the Chamber will continue to debate the importance of Part 2 until the Minister takes some responsibility and gets up to explain why she thinks it is OK that mandatory DNA testing is applicable to 12 and 13-year-olds—children—under the legislation that she is obliged to oversee.

Just in response to Lianne Dalziel, I will quickly say that some of the offences we are talking about are rape, arson, wounding with intent to cause grievous bodily harm, and aggravated robbery. I take members back to some of the well-known and very unfortunate criminals whose string of absolutely dreadful crimes have left victims behind them, and who have caused a lot of distress, and say that if they could have had DNA samples taken from those criminals back when they were first offending, would they not have done that? Would they not have taken DNA samples then, to try to prevent those unfortunate and distressing future crimes that have resulted in people being extremely hurt? We are not talking about the light stuff; we are not talking about indictable offences. I know that those questions have been asked. We are talking about extreme and distressing crimes that leave victims behind them. I say that if we could have taken samples then, we would have. We should give the police that sort of power and that sort of control. I end by saying that, yes, there was a moment when I was on my BlackBerry. The member mentioned before that someone who had seen her on TV had commented about what a good speech she had given. I got a message that said it was appalling.

It is interesting, I mentioned in my maiden speech something that Harry Holland used to always ask. He was one of the early leaders of the Labour Party, and his first test was to ask: is it right for the people of New Zealand? I was speaking at a Rotary club on Monday this week. Rotary has its four principles, as well, and they are very much aligned with the Labour Party principles. The No. 1 principle is whether it is right for the people of New Zealand. If Harry Holland thought that it was right for the people of New Zealand, then the Labour Party would move forward, start the policy process, and put it into place. I look at this bill with regard to 12 and 13-year-olds and I ask: is this right? It fails the fundamental test. It fails under any test.

I will tell members a story. I heard an interview with a woman called Celia Lashlie. I think we all know of her. She is a prison reformer. She said she thought that of all the people she had ever met in the prison system, only six of them could not be reformed. That woman had met many evil buggers in the prison system, but she had met only six who could not be rehabilitated. On a plane down from Auckland one time, I was sitting next to Sian Elias. I mentioned to her what Celia Lashlie had said, and I asked what her views on this issue were. This was after the honourable Minister Simon Power had said that Sian Elias was not in a position to comment on judicial matters, being the Chief Justice, and what would she know about judicial matters, anyway? I mentioned Celia Lashlie’s comment to Sian Elias, and asked what her view was on that. She said she concurred with it. She thought that very, very few people who entered our judicial system could not be rehabilitated.

This is about language. Politics is about language, messaging is about language. If we tell a 12 or 13-year-old that he or she is a criminal, then we have set that child on a path to jail. That is not what is necessary.

I read the Hawke’s Bay Today, I read the papers. There have been a lot of assaults and there has been a lot of crime. Let us face facts: we are all tough on crime, and we want to be tough on crime. Crime is a scourge of our society, but these are crimes committed by people over the age of 18 or 21 years.

As MPs we have all been to intermediate schools and seen 12 and 13-year-olds running around the fields, and that is where they should be. They should be kicking around rugby balls, throwing softballs around, and throwing netballs through hoops. These are not criminals. If we label them as criminals, then we are labelling them for the rest of their lives. This comes back to national standards and to why all the top academics are against national standards. If we label a kid a failure, then that becomes a self-fulfilling prophecy. If we label a 12 or 13-year-old a criminal, that will become a self-fulfilling prophecy. It is not about that; it is about mentoring. It astounds me.

My colleague Moana Mackey said that the police will run into a whole lot of complaints about this legislation, but I will tell members why they will not. I say this with all due respect to my colleague, who is a very articulate speaker and who knows what she is talking about because science and technology are her background. The police will not run into a whole lot of complaints about this, because 12 and 13-year-olds simply do not know their rights. If a policeman comes along to a 12 or 13-year-old, that child will not complain, because at that age children hardly know which foot to put each shoe on. We are talking about children, for God’s sake. We are not talking about criminals; we are talking about children. Why can members opposite not say that they are children?

💬 Sandra Goudie: Oh, for goodness’ sake!

I ask when Sandra Goudie last visited an intermediate school. There are kids running around in shorts, with bare feet, kicking rugby balls. It astounds me that we want to label these children as criminals.

One of the things we must address is what the cause of this is. It is poverty. For example, in Hawke’s Bay, 70 percent of the people earn under $40,000. Seventy percent of the people in Hawke’s Bay got no tax cut in that Government’s reforms, and those people will be screwed when this Government increases GST to 15 percent. It is as if Government members do not even care.

Where is the caring society that we all came from? Where is the community spirit? It has disappeared, and this is just one further step in eroding the community spirit that this party was born to believe in. I would like to think that the vast majority of New Zealanders believe in community spirit. But Government members want to take 12 and 13-year-olds away. We are not talking about people, we are talking about children. If you take DNA from these guys, then you are labelling them for life.

The CHAIRPERSON (Eric Roy): The member must not include me.

I am sorry, Mr Chairperson, you are not at all—I know that you are a decent—

The CHAIRPERSON (Eric Roy): Order!

I am sorry, Mr Chairperson. This Government is removing any vestige of community.

What I think really needs addressing in this House—and the Labour Party works very hard to address this—is what the causes of poverty are. Why do we have 12 and 13-year-olds committing crimes that in the past we just did not see occurring? I will tell members what it is: it is the breakdown that is happening in the community. People are working at second and third jobs simply to put food on the table, to put petrol in the car, to put clothes on the children, and to buy textbooks. National members want to give tax cuts to those earning over $70,000—and we are talking about only 8 percent of the population—and to make 75 percent of the population pay more in GST. We all know that is the case. Seventy-five percent of the people in this country earn under $40,000.

💬 Chester Borrows: I raise a point of order, Mr Chairperson. We are debating Part 2, which amends the Criminal Investigations (Bodily Samples) Act and the Criminal Justice Act. The member has talked about national standards, GST, tax cuts, and the causes of poverty, and we have had sweet Fanny Adams about Part 2.

The CHAIRPERSON (Eric Roy): I think the member himself became a little bit elaborate in his explanation. Members know that relevance is one of the issues I consider before taking the closure motion.

With regard to DNA testing, I see taking DNA from 12 and 13-year-olds as being a breach of human rights. These are members of our society who do not have any understanding of their rights. These are members of our society who should be looked after and covered by our society, yet by taking their DNA we are in effect putting them on a database and criminalising them for life. It will become a self-fulfilling prophecy.

As Moana Mackey mentioned, a whole lot unintended consequences will come from this. The Department of Scientific and Industrial Research, or the Institute of Environmental Science and Research Ltd, or whatever it is called these days—it is being restructured because it now has to have a profit motive—will probably be user-pays, and GST will be charged on top of that, and we all know that it is going up to 15 percent, to hurt the most affected. No only are we seeing here an increased cost to society in relation to marginalising and criminalising the most vulnerable in our society but also we are making the Institute of Environmental Science and Research and the police undertake procedures that, in effect, they know are a waste of time. They know that this will not help society, that it is not about productivity, and that it is not about protecting society. It is pure and utter politics.

I know that if the vast majority of New Zealanders looked into their hearts and asked whether they wanted to criminalise 12 and 13-year-olds, whether they wanted to take their DNA, and whether they wanted to violate the human rights of 12 and 13-year-olds by forcing them to give swabs, and asked whether that is what they signed up for, whether it is what they voted for, and whether it is the sort of society they want or the sort of country they want to live in, then the answer to every single question would be no. These are children.

We are seeing the breakdown of our communities. We talk about a Government that is inclusive, that wants economic development, yet here we have legislation in front of us that, in effect, is marginalising those who are the most vulnerable when, in fact, we should be picking them up and giving them opportunities. We should be providing them with aspiration. It is easy to talk about aspiration as we beat them down, as we heap all this stuff on top of them and say: “You cannot achieve because you are a criminal.” It becomes a self-fulfilling prophecy, and I for one am very proud to be part of this party, which stands up for the rights of children—who stands up for 12-year-olds. They are not even in their teens, for goodness’ sake. The 12-year-olds whom I know are, without a doubt, children, yet this Government wants to take DNA samples from them.

We talked about CSI. I like CSI, it is a great programme, but never in any of the CSI programmes that I have watched has there been a 12-year-old who has had a mouth swab, on whom all these tests have been run, and who has been put in jail. Even the guys on TV who make programmes to appeal to the vast majority know that taking DNA from 12 and 13-year-olds is just not right.

This bill represents everything that is wrong. It fails the fundamental test that we ask ourselves every day as parliamentarians: is this right for the people of New Zealand? No, it is not.

I move, That the question be now put.

We come to a number of amendments in the name of three different members seeking to include an expiry provision in the bill. In order to deal with these amendments, I think a precedent has been set earlier in the day, and in line with that particular precedent I wish to test the will of the Committee as to whether it wants to accept these amendments. I propose to put the question on the two extreme amendments, and on one amendment in the middle, in order to test it. I think that because proposed dates are so far apart, we need some middle ground as well.

The question was put that the following amendment in the name of Jacinda Ardern to Part 2 be agreed to:

to add the following new clause:

43A Expiry

This Act expires with the close of 31 July 2010.

The Committee has had an opportunity to express its will on a variety of expiry provisions. Therefore, I rule out all other amendments adding expiry clauses after clause 43. We will now have a similar arrangement with regard to adding a new clause 44A, which is a sunset provision. I wish to begin by putting the question on the amendment with the earliest expiry date that I can find, in the name of Grant Robertson.

The question was put that the following amendment in the name of Grant Robertson to Part 2 be agreed to:

to add the following new clause:

44A Expiry

This Part expires with the close of 19 September 2011.