Policing (Storage of Youth Identifying Particulars) Amendment Bill

The Green Party has argued in the first and second readings of the Policing (Storage of Youth Identifying Particulars) Amendment Bill that the process we are going through, rushing this bill through in urgency, is a travesty of the parliamentary process. A lot of the argumentation both by National and Labour speakers has been that this is all just about restoring the status quo. They are using the fact that there was not a lot of debate around this provision before the Policing Act went through in 2008—in fact, there was no debate about this provision—to say that somehow the intention of the legislation is the way they want it: particulars can be kept by the police of basically the whole range of people involved in youth offending who have come before the Youth Court.

The fact that there was no substantive debate on the 2007 Policing Bill does not make a case one way or the other. If there was no debate on it, members cannot say that the intention of Parliament was in any particular direction. Labour members can come out and say they were the Government then, their intention was in that direction, and they are sorry, but they got it wrong in the legislation. Labour members can say that if they like, and National members can get up and say they now believe that the intention of the bill was this or that. But Parliament is made up of all of the MPs and parties in Parliament, and the Green Party did not engage with this particular clause in the 2007 bill, because we were not aware of all of the implications, which were not part of the general debate, so we did not commit to an argument one way or the other on this particular provision. So the idea that we, or the Māori Party, or any other party had a particular intention over the 2007 bill, which can now be divined by Labour or National speakers, is nonsensical.

What has happened as a result of this debate is that there clearly is a substantive issue. Once this issue has been brought to the attention of the whole Committee, including the Green Party and Māori Party, there is a substantive issue. It is not just correcting an intention of Parliament. It may be correcting an intention of the Labour Government, or it may be correcting an intention of National, but it is not correcting the intention of Parliament. Rather than saying “Oh well, we can rush this through in urgency under our definition of the situation.”, as Labour and National are doing, they have to take Parliament into account, particularly on the substantive issue that has been raised.

The second to last speaker for National in the second reading, Melissa Lee, said that this situation has applied since 1958. Well, let us dissect that a little bit. In 1958 there was no Youth Court. I am not an expert on what our methods of dealing with young people were like in 1958, but I think those methods were probably a little bit backward, and that is another reason to have a proper consideration of this bill, so that we can actually look at what the treatment was of young people back in 1958. We know that it was not until 31 years later in 1989 that the Youth Court was set up. So for the National speaker to say as she did that all of these provisions have applied since 1958, when there was not even a Youth Court in 1958, is nonsensical, which is another reason why we have to have a substantive discussion of this provision.

As Rahui Katene said, Māori Party members are out consulting their networks, now that they are allowed to, because they did not have to hold their confidences past half-past 9 this morning, I think Rahui said. There is clearly not only a Green and Māori Party MPs debate in this Committee but a community debate starting up around, for example, the provisions in the Children, Young Persons, and their Families Act, section 283, paragraphs (a) to (n), which cover all of the different penalties that can be applied to young people, short of conviction. One of the first of these penalties, as my colleague David Clendon mentioned, comes up in paragraph (b), and is admonishment. The idea that someone in 2011 who is admonished for often the most trivial of offences in the Youth Court should then have their fingerprints and all kinds of things preserved is against the modern concept of justice, and youth justice in particular.

We have in this Parliament passed legislation, like the Criminal Records (Clean Slate) Act, reflecting a more modern concept of justice—that we do not want to tar offenders with things they may have committed in the past. Surely, if an 11-year-old has committed a minor offence that is dealt with by admonishment in a Youth Court, that offence is not the sort of offence that should be necessarily followed by collection of all kinds of personal details and fingerprints, etc. We want to create in that young person the feeling that—after their admonishment and the family telling them they have done wrong and all the rest of it—they have put all that behind them, that there is nothing in the police records in terms of identifying characteristics and fingerprints, and that they can go on to a whole new life. They might have shoplifted a packet of chewing gum or something like that.

The Labour speaker Carol Beaumont said it was good to have a debate on the causes of crime. Well, this provision is actually a good point for a discussion on the causes of crime. I really respect what Rahui Katene said about Māori offending and Pākehā and all the rest of it. But one of the problems of repeat offending, including Māori offending, is people getting alienated from the system by feeling that they are unjustly targeted. To have a softer provision, whereby all this stuff is not kept on someone who is admonished in a Youth Court for stealing a packet of chewing gum, is one way of getting rid of that alienation and reducing repeat offending. That is all modern thinking in relation to responses to crime, particularly youth crime, and is much more modern than what existed in the Police Act 1958, which has been referred to in the debate.

The question of urgency and why we need it—and David Clendon said this now—relates to the argument that there will be piles of court cases that cost huge amounts of money. Annette King came up with the figure of $6 million. In fact, the regulatory impact statement put out by the police says that possibly 20 percent of cases where identifying information was collected on young kids and used in a subsequent case would be appealed and could cost $6.2 million. A bit of common sense would say that when kids and their families have been through that process, they do not want to resurrect it. In something like 99 percent of cases they will not go through the appeal stuff and cost the country millions of dollars and all the rest of it. If members do not believe David Clendon and me on that, then perhaps that is why we should have a whole process around this bill. At the select committee we could get lawyers in and people from Child, Youth and Family to tell us what the situation is, whether there would be a lot of appeals, and what the advantages or disadvantages are of not collecting all this identifying information on some people who have been subject to minor penalties, diversion, admonishment, and what not in the Youth Court. Why should we not have that discussion?

There is a certain embarrassment amongst the Labour and National speakers about this being retrospective legislation, and there has been a lot of criticism of retrospective legislation by the legal profession. I think that is another very strong reason for not supporting this bill and for going through a proper process whereby we can have all of the discussion. Even the whole question of the relationship between the Policing Act 2008 and the Police Act 1958 could be discussed. I have not had time as a Green Party speaker here to look at all the amendments to the 1958 Act. I know that that Act did not deal with the situation of a Youth Court, because that was not established until 1989.

Part 1 deals with the retrospectivity issue, but it does contain the purpose of the Act, so I suppose we can traverse a bit more broadly. As I understand it, this is where I depart literally from the Green Party speaker on this matter. The regulatory impact statement states: “There is no evidence of a policy decision being made during the development of the Policing Act 2008, to reduce the circumstances under which Police may retain youth [identifying particulars]”. Perhaps that is the question that the Minister in the chair, the Minister of Police, could assist the Committee with by responding in the debate on Part 1. Could she please explain to the Committee what the rules were prior to the Policing Act 2008, and how they related to the specific issue that we are addressing? I actually think that is the question that Keith Locke is asking. Given that the Children, Young Persons, and Their Families Act was, obviously, much later in its application than the Police Act 1958, what was it that existed before that saw us carried through to the 2008 Act provisions? I think that would be a useful basis for the discussion we will obviously have on Part 2.

I want to go back through section 34 of the Policing Act 2008 in terms of what was stated in the bill. That provision passed through this House without any comments against it or, indeed, without any reference to any concerns, and no vote against it, either. It required that the identifying particulars of a person that are obtained under section 32 or section 33—Part 3 gave the power to identify people detained by the police, but this provision was about keeping that information—“may be entered, recorded, and stored on a Police information recording system; but (b) any photographs or visual images of a person and any impressions of a person’s fingerprints, palm-prints, or footprints that are obtained … must, as soon as practicable, be destroyed—(i) after a decision is made not to bring proceedings”—that is, it will not go to trial and will not be a matter dealt with by the court, or, essentially—“… (ii) after the completion of proceedings against the person in respect of the offence for which the particulars were taken, unless (A) the person is convicted; or (B) the person is discharged under section 106 of the Sentencing Act 2002; or (C) an alternative resolution is imposed where the person admits to an offence (for example, diversion).”

So all of those issues were there on the record. As far as the House was concerned, it believed that what it was doing was allowing the police to retain that evidence if the person was convicted, if they were discharged under section 106 of the Sentencing Act, or if an alternative resolution was imposed where the person admitted to an offence. What this particular bill does is change that to refer to “criminal prosecution proceedings”. It is a new definition, and it essentially means proceedings “commenced against the person in respect of that offence or offences including that offence under the Crimes Act 1961, or under the Summary Proceedings Act 1957 (alone or, if the person is a child or a young person as defined in section 2(1) of the Children, Young Persons, and their Families Act 1989, in conjunction with that Act);”. That is why it would be quite useful for the Minister to traverse the history of the legislation in order to make clear what would have happened under the Act in place before the 2008 Act was passed.

The second point, which is actually the in order discussion point for Part 1, is the question of retrospectivity. I have said in the House before, I think in both the first and second readings, that retrospectivity is something this House should, as a general principle, guard against. It is not a good proposition that we retrospectively reapply the law. Obviously, people’s circumstances change, and to change a person’s legal rights or obligations by retrospective application is something that even our New Zealand Bill of Rights Act invokes us to guard against. But I think there are occasions when retrospectivity is acceptable.

Let us take the option that is proposed by the Green Party, and that is to introduce a bill, refer it to the select committee, call for submissions, and then expect the good lawyers of New Zealand to come and give us helpful submissions about how we might improve the law, rather than their filing the trillion cases that they would file on behalf of their clients. And it would actually be their obligation to file them, because it would have been brought to their attention that there was a technical opportunity available for them to appeal and get their client off—but only on a balancing act; there is no absolute guarantee that they would get their client off. In fact, the advice we have in front of us is that as long as there was other evidence, as long as this evidence was not the only evidence justifying conviction, the court might nevertheless confirm the conviction. As I said before, each case will turn on its own facts. That could result in the Crown facing case after case after case, because it could never rely on the precedent of one case—the first case—as would normally be in the situation with a legal test case.

I think it is really important that we think through carefully what is being proposed by the Government. As I said, I would normally be claiming constitutional outrage in the depths of the night, in deepest darkest urgency. I would normally refer to the date on the Chamber wall—if I could read it from here. I think it says 16 August, but we are actually beyond 16 August. Oh, it is behind me? Very good. It says Tuesday, and today is not Tuesday; it is actually Thursday. So I would normally be making my constitutional outrage speech, but this bill does not deserve one of my constitutional outrage speeches, because it is not a constitutional outrage. It actually amends the legislation to say what Parliament intended to say. It was only a technical drafting error that left out the reference to the Children, Young Persons, and their Families Act that enabled this to happen.

I think the Minister, by explaining exactly what happened prior to the 2008 Act coming into effect—what exactly the sequence of events was, what the law would have required—will make it very clear to the Committee why this bill should pass through all of its stages in these circumstances, and why the rule against retrospectivity is not offended by this particular bill. I hope the Minister takes a call, either in the debate on Part 1 or at the beginning of the debate on Part 2, in order to clarify for all of us the specific sequence of events and how that might specifically apply. I think that would give great comfort to those who have some genuine concerns, which they have talked about. I have heard it was a conspiracy on one hand, and then somebody else said that, no, they were actually just saying it was a conspiracy theory. But I do not think there is a conspiracy theory. I do not think there is a conspiracy. I do not think anyone believes that. I think the truth is somebody has identified a mistake, and Crown Law has said, yes, it is a mistake and, yes, there are consequences.

The police have acted on that advice and destroyed all of the evidence that they collected up until that point. They no longer retain it for that purpose. I think that is a worthy approach by the police, and I think the least this Parliament could do is restore the tools they thought they held on the passage of the 2008 legislation, and, I understand from the Minister, they held the day before the 2008 legislation was enacted. Let us put the police back into the position they were in before. Let us not worry about whether this bill is retrospective, because the police have addressed the retrospectivity issue by destroying all of the evidence they held against young people who were convicted. I think that is the dividing line for most of us in this House: we are talking only about people for whom the information was retained post-conviction or post one of those other conditions.

I will first speak about retrospectivity. Clause 3 states: “This Act amends the Policing Act 2008.” According to the explanatory note, on 30 September 2008 the police lost the power to store particulars. So any records kept since 1 October 2008 have been kept in breach of the law. In essence, the retrospectivity of this bill validates illegal behaviour by the police. If the police have acted in accordance with current law and have destroyed those records, that is great. No records have been kept, so there should be no need at all for this bill to be retrospective. As I have said previously in this debate, it is the secrecy and the urgency that are the key issues. That is what creates this problem with process that justifies opposition to this bill until the issues are considered properly.

I will look at the purpose of the bill. Clause 4 states: “The purpose of this Act is to amend the principal Act so that it indicates clearly when it authorises the storage, and when it requires the destruction, of youth identifying particulars.” I guess that is a description of what this bill will do, but it is not a sufficient explanation as to why we need to store the fingerprints and photographs of our young people.

I will share with the Committee a staggering statistic from Kim Workman, who is the director of the Rethinking Crime and Punishment project. In his work Redemption Denied: Aspects of Māori Over-representation in the Criminal Justice System, we learn that for Māori males born in 1975—for example, my eldest son—it is estimated that 22 percent had a Department of Corrections - managed sentence before their 20th birthday, and 44 percent had a Department of Corrections - managed sentence by the age of 35. Thankfully, my eldest son does not fit that statistic. A Department of Corrections - managed sentence includes both custodial sentences and community-based sentences. This is a fact that every MP in this House should be aware of before they vote on this bill.

This bill, as it sets out in clause 4, provides a legislative means for the unique identifying particulars of our young people to be stored on the record. National members and Labour members alike have tried to encourage me to keep the issues I have raised during this debate for another time, and said that we need to focus our kōrero on the theme of this bill: to correct a mistake that was never intended. They say we are restoring the status quo. We have been told that the Māori Party and the Green Party have missed the point. We have been challenged that we should have raised these issues when the Policing Bill came up in 2008. Without putting too fine a point on it, neither the Green member David Clendon nor I was in the House at that time. However, I have read over the contributions made by the Māori Party when the Policing Bill came before the House, and I want to restate a comment made by my colleague Dr Pita Sharples that effective policing relies on a wide measure of public support and confidence. Public support and confidence means having the courage to open up to scrutiny all issues around police behaviours. Thank goodness there are two parties in this House that have raised questions about process and about why we would introduce legislation under urgency to store the unique particulars of our rangatahi.

I remind all those well-meaning members that there is a broader context to Part 1 of this bill, which is the grossly disproportionate youth apprehension and prosecution statistics that provide us with a distinct challenge when we think about the relationship between the police and young Māori. We know that the apprehension rate of Māori youth is more than three times that of New Zealand European youth. We need to be open to scrutiny in this House and allow substantive debate, whether or not it occurred in 2008.

I rise to speak on Part 1 of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. I will talk about clauses 4 and 5 and what they do, but before I do that I need to comment on the points made by the last speaker, Rahui Katene. The intention of the bill is very narrow and it is very simple. A mistake was made. The bill deals with a particular, very narrow circumstance about maintaining identifying particulars of young people. It was not a constitutional outrage; it was a drafting error. We have a bill now to rectify a drafting error, the impact of which was to accidentally omit some words that need to be in the legislation.

I find it quite extraordinary that members would see this bill as the way to deal with what are very serious issues—which I have raised in the debate, and which Green members and Māori Party members have raised—about our young people, about the causes of crime, and about the disproportionate impact on Māori, and even the latter points that the Māori Party member Rahui Katene made about policing conduct. All of those are really important issues that I and many of my colleagues have a great deal of sympathy with. But this bill is not the way to deal with that. A minor, technical, narrow amendment bill is not the way to start to deal with some of the most significant issues that face us as a country. We need to be constantly looking at the causes of crime. As I said in my second reading speech, we need to be looking at the impact of poverty, inequality, unemployment, and all the other things that are disproportionately affecting our young people.

Clause 4 states: “The purpose of this Act is to amend the principal Act so that it indicates clearly when it authorises the storage, and when it requires the destruction, of youth identifying particulars.” The purpose of this bill is to right what went wrong in 2008 when the legislation went through and, if you like, to reflect the intention of Parliament at the time.

I am somebody who strongly believes in following good process, but good process, surely to goodness, is about introducing a bill, having select committee scrutiny, reflecting on what happened at the select committee, and passing legislation that reflects those outcomes. Obviously, in the case of the 2008 Act, as others have said—and Lianne Dalziel and Annette King have made this point—that did not happen. The process, as Annette King outlined in her case, was a very substantial process. There was a 2-year consultation period, and then the track through the House after the select committee hearing went wrong. It went wrong; it accidentally omitted words that needed to be there. It was a drafting error. So let us not use that to try to create a much broader debate. If we want to do that, then we should be raising the debate properly.

Clause 5 makes it clear that the sections “substituted by section 6 of this Act apply, and must be taken to have applied at all times after the close of 30 September 2008, to all identifying particulars obtained under the principal Act after the commencement, on 1 October 2008, of that Act …”. This is the retrospective part, and, again, I understand why people get nervous about retrospective legislation. I doubt that there are too many of us in this Chamber who do not see why it is problematic. But in this particular case it is necessary to ensure that our police are able to do the job they are meant to be doing and are able to identify youth offenders. In my opinion, identifying youth offenders and ensuring that they are dealt with appropriately is better than not identifying them and finding them much further down the track, when they are much more involved in criminal activity.

Part 1 of the Policing (Storage of Youth Identifying Particulars) Amendment Bill is clearly about the purpose of the legislation, and is the heart of the proposed Act. Part 1 states that it seeks to amend the principal Act, particularly in relation to the issue of the storage of youth identifying particulars. I think it is worth reflecting just for a moment on exactly what those are.

This morning we heard reference to fingerprints. In fact, youth identifying particulars include names, addresses, dates of birth, photographs, visual images—presumably footage from cameras, cellphones, or whatever it might be—fingerprints, palm prints, and footprints. Potentially, quite an extensive body of information is being retained in these instances for young people who have been through a Youth Court process. We are told—in fact, we are assured—that the issue has been corrected, and again we can assume, in the absence of any information, that the youth identifying particulars that were retained post-2008 were destroyed perhaps 8 or 10 months ago, presumably in October 2010 when this issue came to light.

One wonders whether there has been an explosion of youth offending since that time. Have we seen the unfortunate repercussions that we are told would follow from the inability of the police to retain this information, these youth identifying particulars? We now have nearly a year’s worth of evidence to inform us whether there is actually a real problem or whether a problem has been created. I think it is reasonable to suggest that we should have a proper process involving a select committee, involving some time for consideration, and involving external agencies with expertise in youth offending, in youth law, and indeed in ways to bring youth back on to a proper footing and leave criminal offending behind. We have that body of information available to us, and I think it is worth considering that before we charge on and pass this legislation a couple of hours after many of us in this Chamber were blessed with its first reading.

We have heard that the purpose of the bill is necessary, and that we need to restore the police’s ability to store information, because it will somehow enable us to intervene more readily and at an earlier stage in dealing with youth offenders—in particular, with repeat offenders. There is somehow an assumption that having this information to hand will enable us to more readily steer youth on to a better path. I think that is a fairly dubious proposition. Our young people—indeed, our young offenders—might be misguided, but they would not have to watch too many television programmes to know how to avoid leaving behind fingerprints and getting themselves on cameras. I do think there is a considerable overstatement of the value of retaining this information, in terms of enabling us to intervene at an earlier stage.

I absolutely take the point, though; many times in this House I have advocated in different contexts that we need to intervene at the earliest opportunity. Unfortunately, a lot of the policy in relation to justice and corrections that we have seen passed in the last 12 months or so is steering us in quite the opposite direction. We are not dealing at an early stage with youth offending, and we are not giving them the necessary treatment; we are simply resorting to prisons more and more routinely.

We have heard the proposition that we need to consider the broader issues that underpin the purpose of this bill, which is to amend section 34 of the Policing Act. I think that is the key section. To be fair, having read that section just this morning, I can understand that it is clear and easy to see how the issue could have been overlooked. The section simply states—I will paraphrase—that the decision from Crown Law turns on the definition of the word “conviction”. Obviously, the legal definition of that word is such that the police were in error when they were retaining information relating to young people, because technically it was not a conviction coming through the Youth Court unless it triggered section 283(o) of the Act, or the penalty applied was involving direction to the District Court. So there is clear evidence—or it can be reasonably said—that this issue was overlooked, that there was no analysis, and that nobody at the time picked up the fact that the simple declaration of that word “conviction” was actually going to put in error the police’s assumptions that they could continue to gather that information.

It is perhaps pre-empting a later part of this bill and a later clause, but I think that under the purpose clause we can entertain the slightly broader issue—

Debate interrupted.

Sitting suspended from 1 p.m. to 2 p.m.

House resumed.