Policing (Storage of Youth Identifying Particulars) Amendment Bill

Before the lunch break I was making some points about the purpose of Part 1, and I wish to continue briefly on that same line. The point has been made a number of times that there is no evidence from 2008 that the idea of amending what was then the practice was intended to be shifted—that the change the police identified some 8 months ago was not intended—and that is fair comment. The point has already been made elsewhere as well that equally there is no evidence that there was no such intention, and I will come back to that point in a moment.

The general proposition agreed to is that identifying particulars should be retained in the event of a conviction, and clearly that is the practice of the District Court and, indeed, of the Youth Court, if a young person against whom a charge has been found proven is sent to the District Court for sentencing. I think we need to reflect for a while on why the Children, Young Persons, and Their Families Act specifically uses language other than the language of conviction. If we look at section 283 of that Act, we see there is reference to conviction in some of the higher-order responses that are possible under that section. By that I mean some of the more serious responses in the event a young person has been found guilty of some criminal offending. It is proposed that certain forfeiture of property, for example, may be applied—

The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the member. It is increasingly difficult to hear the member, and I say to members if they want to have conversations then go out to the lobbies.

Thank you, Mr Chair. In the context of section 283, two or three references are made to penalties that might be applied to the young person as if the young person were an adult and had been convicted of that offence by a District Court. I think we need to reflect on that.

As we said earlier, the deal-breaker, the point at which the 2008 legislation fell over and created this conundrum for the police, and, indeed, for the House, rests on the definition of the word “conviction”. I ask members who have been in this House for longer than I have why it was that when the legislation was being drafted, there was specific exclusion that the notion of conviction to the largest extent possible was removed from the Youth Court. I think it is a reasonable proposition that a deliberate attempt has been made to remove the language of conviction—to take away that status of a convicted person, shall we say—from young people. Rather, the charge can be found and an order can be made against the person. I think we need to consider why that language is so specific and why such pains were taken to take away the notion of convicting a young person of an offence, except at the very highest level, and I refer to the purely indictable offences—the ones that conceivably carry something like a 10-year sentence.

Clearly, there is a difference between dealing with young people and dealing with adults. An arbitrary cut-off point of 17 or 18 years has been the point of distinction, and we could contemplate that, but I think for the moment it is sufficient to acknowledge that we treat young people differently. That is an aspect of our contemporary law. It was not evidenced in the Police Act 1958, to which some reference has already been made in this debate. I think we need to acknowledge that in 1958 no clear distinction was made in law between a person and a young person. I say that willing to be corrected, but certainly on the very brief amount of research we have been able to do this morning, we have been unable to find in the earlier legislation of some 50 or more years ago distinctions in law between a person and a young person. We have moved on from that, and I think it is a good thing. Clearly, we ought not to treat children or very young people as if they have the judgmental abilities—the abilities to distinguish what is sensible and a good action—of an adult, just as we would not sensibly require them to meet the same standards as an adult.

I think there are very sound reasons why we have changed this language. Fifty years on from 1958, we have acknowledged that young people are different. They are subject, particularly in this modern era, to very different pressures and expectations. They are growing up in a very different world from that of their peers in the 1950s and 1960s. I think we do need to seriously reflect on that when we consider this bill. Dare I say it, with the legislation passed in 2008, which this bill seeks to amend, perhaps we did the right thing by accident by excluding young children from the penalties imposed at the Youth Court and from this question of whether we retain their youth identifying particulars.

It would be helpful, I think, if the Minister in the chair, the Minister of Police, took a call and responded to some of the very good questions posed by Labour speakers earlier in relation to the history of some of this, and simply reflected on the matter of why we so carefully and deliberately avoid the notion of convicting young people. A conviction in the adult context enables police to retain the identifying particulars of an adult offender. By accident, we now have a situation where young people do not have that same penalty imposed on them. I would be very interested to hear from the Minister, and I hope she will take a call.

I move, That the question be now put.

I think it is worthwhile teasing out particularly the Labour argument in this debate, and that is that a mistake was made and the intention of Parliament was not reflected in the final bill. Well, I would come at it from the point of view of a judge. When judges look at legislation they look, for a start, at what the law actually says. It is quite clear, from any reading of the law, as to what it says—that there is an exclusion from taking identifying particulars from young people with low-level offending who have not been convicted as such but have suffered very low penalties for their disobeying of the law. Under section 283 of the Children, Young Persons, and Their Families Act 1989 there are Group 1 responses, up to Group 7 responses. Group 1 responses are when the Youth Court discharges the young person from proceedings without further order or penalty, and admonishes the young person. The judge looking at that would think: “Perhaps, as my colleague has said, there’s a distinction here between young people and old people. That is very much the modern thing, so I will read the law as it is written.”

But the other thing judges do is look at the debate in Parliament, particularly at third reading speeches, but even at the whole debate. When we look at the whole debate in 2008 on the Policing Act, we can see the conclusion—and in the very rushed time we have had, some people have looked through all this stuff, and they “have not located anything which indicates a specific policy position was taken on this issue.” That is, the parties in this House, including the Labour-led Government at the time, did not put forward in any of the parliamentary debates any specific policy position, nor did any other party, including the Greens. I was the Green spokesperson on police during that time, and spokesperson on that bill, and there was no conception that there was any misinterpretation of that particular provision, or that there was any policy position that would lead a judge to offer any interpretation other than what the legislation actually means.

People say: “Oh, well, you’ve got to go back to the 1958 Act and what that meant.” The 1958 Police Act was written for an entirely different time, when, as my colleague says, there was no differentiation between older and younger offenders, there was no Children, Young Persons, and Their Families Act, and there was no Youth Court, etc. If the Government had put out in 2008 an options paper saying that one option is that we distinguish between young people and older people, and people who have been convicted and people who have not been convicted, and if it had referred to the Children, Young Persons, and Their Families Act and all the rest of it; and if we asked the parties in the House which option will we take—tell members the option the Government supports, and then have a debate about it—then there would be some clarity. It would be quite clear what was meant by Parliament.

I think the fundamental misconception is that both Labour and National are defining Parliament as the Government, and that is very offensive to other parties in an MMP climate. We have never been part of the Government. We come to this debate, and to all the debates in this House, in good faith. We discuss the bills as they are, the wording as it is, and the motivations as they are put forward. There was no motivation or wording or anything whatsoever to construct the interpretation that Labour is now putting on this bill. Also, there was no explanation of how it fitted in with previous legislation, including the 1958 legislation on this issue, and to what extent that took account of the huge changes in the way we respond to youth offending now as compared with 1958.

Carol Beaumont said it was drafting error and some words were missed out. Well, if that is the case, let us see the proof. Let us see the words that were missed out. I do not think that is the situation, but I challenge anyone in Labour to show that.