Policing (Storage of Youth Identifying Particulars) Amendment Bill

I will take a moment to answer some of the queries that have been raised. For a start I will look at the Police Act 1958 and at the relevant section, section 57(3), which states: “If the person in respect of whom particulars have been taken under this section is acquitted, the particulars shall be forthwith destroyed:”. In effect, that is saying that the particulars of anybody who is charged and found not guilty have to be destroyed. The Policing Act 2008 changed the whole nature of that provision and said essentially that the particulars must be destroyed unless something else has happened. So the emphasis changed to destroying the particulars. Section 34(b)(ii) of the Policing Act 2008 states that particulars must be destroyed “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).”

Many of the arguments I have heard today from members of the Green Party and the Māori Party would have us think that the previous Parliament thought that identifying particulars should be kept for someone on a diversion but not when proof of guilt has already been given in the Youth Court and where a resolution has been reached. Many would think that that is an alternative resolution and that it is covered in this particular subsection. I can well imagine why the previous Parliament felt that.

In fact, when the issue was first raised as to whether this subsection enabled the police to keep the particular identifying features in relation to youth offenders whose matters had been resolved in the Youth Court—often when the offenders had said they were guilty and the resolution had been agreed to—the police sought advice from Crown Law. There were months and months of discussions between the police and Crown Law, because there is a very legitimate case here that would say there is a lot of doubt as to what these words mean and to whom they would apply.

I have heard the argument that the Police Act was passed in 1958, which was before the Youth Court was established, so clearly it does not apply. Well, it does apply because the Police Act 1958 has been amended on many occasions over the years, which is why the previous Minister of Police Annette King thought it should be reviewed, and she was quite right to do so. She was quite right to bring in new legislation and to bring it into a more modern age, but that is where this slip-up occurred. The Policing (Storage of Youth Identifying Particulars) Amendment Bill is simply making sure that we remove that possibility—in fact, probability—that the wrong decision could be brought about.

I do not think that is evidence of a conspiracy; I think that is evidence of members of this House trying to do the right thing by the public, by victims, and, frankly, by youth offenders, who do need to be held accountable for their actions. This bill is not something that enables the police to charge around collecting information just in case one day they might want to charge someone; this is about making sure that they get the right people who have committed the crimes, rather than the wrong people. It is also about understanding that the youth we are talking about are deeply troubled, or they would not be in this situation. The last thing they need from this Parliament is the sort of argument I have heard today from some members, which is that it is all about the police wanting to be mean to young offenders and to pick on them. These young people need help. They cannot get help unless they go through a system like the Youth Court, which brings them a great deal of opportunities to change their ways. The Youth Court has been a huge success; we should support it. This bill supports the Youth Court and the work it does.

I appreciate that the Minister in charge of the bill has answered some of the questions that have been raised. I think that is very good. It is true that the Police Act 1958 has been amended, but from what I can gather, section 57 in particular has been amended in only a very minor way, and certainly not in the substantive piece that she referred to. It is true that section 57(3) of the 1958 Act talks about holding particulars unless the person is acquitted, but it is also true that the second paragraph of subsection (3) talks about that provision not applying if a person is acquitted on account of his insanity or is discharged under section 42 of the Criminal Justice Act 1954. The qualification for section 57(3) uses the word “discharged”.

In fact, it is interesting that when one goes to section 83(1) of the Children, Young Persons, and Their Families Act 1989 it talks about the concept that young people are not convicted if they come under one of the section’s provisions. The first one is if the court discharges the young person from proceedings without further order or penalty. Again, it uses the same word “discharged” to exempt the person from the identifying particulars requirement, which is the same wording that is used to exempt the person under section 57(3) of the 1958 Act.

All that having been said, I think the question is—and I think the Minister has now admitted it—that one can have doubts around all of this, the meaning of legislation and what the intention was, etc., but, certainly in terms of what was explicitly stated during the parliamentary debate or in any of the documentation that the Government put out around that debate, there was nothing that nailed the interpretation of the 2008 legislation to what the Labour Party or National are saying now. In that context, and the in context that a whole lot of young people who have gone through the court system will not suddenly be jumping up and wanting to brought back into the spotlight with appeals, there will not be a problem for the Government or society if we consider this in a more considered manner, rather than rushing this whole bill through Parliament under urgency. We appeal to the Government at this late stage to change its course and to let us have a longer period to deal with this bill. We have time, we can do it, and we should not just push it through today under urgency.

Part 2 of the Policing (Storage of Youth Identifying Particulars) Amendment Bill has one clause. This clause repeals section 34 of the Policing Act 2008 and inserts new sections 34 and 34A. It clarifies the instances under which the identifying particulars of a young person can be stored, as intended by Parliament.

We are talking about young people who have appeared before the Youth Court, have been found wanting, and have been convicted—a case has been proven against them. These are the young people whose particulars we are talking about. We are not talking about young people who have never done anything, are innocent, and walking along the streets of New Zealand. We are talking about young people who have been brought before the Youth Court and have had a charge against them proved.

It has been decided by the Youth Court that there are number of responses it could use. In fact, there are seven levels in the hierarchy of court responses if a charge against a young person has been proved. The responses go from quite minor through to quite serious, the most serious being to send the young person to the District Court for sentencing. So there is the ability for the Youth Court to make a decision.

The fact is that this measure concerns young people who have committed crimes, and the ability to retain their particulars—Part 2 sets out what those particulars are—and it is plain common sense. Why would we not retain the particulars of young people when they have committed a crime and the Youth Court has made a decision on it?

Keith Locke has said today that we should come to this bill from a judge’s point of view. I say no, he is quite wrong. Members should come to this bill facing up to our responsibility to pass a law that reflects our intent, and it is then up to the judges to interpret it. This Parliament is going through a process to ensure that we have a law that reflects our intent.

I am surprised at some of the comments from Keith Locke, because he was the Green spokesperson on the Policing Bill during the 2 years that we—that is, the Greens and the previous Labour Government—consulted on it. He met with me on many occasions. He must think again about what he said. He made it sound as though the previous Government knew the mistake was there and did not change it. If we knew we had made a mistake, does he think we would have left the bill in that position? If we knew there was a mistake, would we not have fixed it? It is nonsensical to say we knew there was a mistake and we did not fix it.

Of course we did not know there was a mistake in the Policing Bill, nor did the Green Party and the Māori Party. If the Māori Party and the Green Party knew that it was a mistake and they wanted to talk about it—or perhaps they did know there was a mistake and they did not want to talk about it. I do not believe that was the case; I believe it was a genuine error—an oversight. Now we have the opportunity to rectify it, so we can proceed on in a manner that existed in the past.

I cannot see why this House would not support this bill. It seems to me that many of the arguments we are having are dancing on the head of a pin. We want to ensure that young people who offend get the opportunities to have different orders made on them, so they are not all sent off to the District Court. We would not want that. When one looks at the responses that are available to the Youth Court and are available for young people, one can see that many of them will help young people and their families, work with those young people, and give those families an opportunity to put those young people on the right path.

So I would say that we ought to be passing this bill as soon as we can. There is nothing wrong, in our view, in taking urgency on this particular matter. We do not always agree with urgency—in fact, we think some of the urgency has been wrong and we have said so—but we are talking about genuine omission in legislation that needs to be corrected. Unfortunately, it has been used today by the Māori Party and the Green Party as a stalking horse for other issues, and I think that is a terrible shame.

I do not disagree with some of the points Rahui Katene of the Māori Party has raised about the broader issues, but they are not the issues of this amendment. There are many reports on other issues, and never did I say to Rahui Katene today that there were five reports on this particular issue. I said there were about six or seven reports on the overall bill that looked at many parts of it and that we consulted on them. No, I did not say there were five reports on this particular part of the bill.

The wider issues are worthy of a debate, but they are not what this bill is about, and the bill should not today be used as a stalking horse for something else. There is a time and place to raise those issues and that is when they should be raised. An amendment to correct an omission should not be used as ploy. I do not agree with that. I think we should concentrate on the issues before us and make the amendment as soon as we can.

Before I go on to Part 2 of the Policing (Storage of Youth Identifying Particulars) Amendment Bill I will just respond to some of the issues that have been raised. One of those issues was raised by the Minister of Police, who seems to think that because we are talking about the way Māori are picked up by the police we are saying that the police are being mean to Māori. In fact, that is not at all what I am saying. I am saying that ethnic profiling exists, it has existed for a while, and our kids are being picked up more by the police, regardless of whether they are doing anything wrong. All they have to be doing is walking down a road and the police are picking them up and taking them in for questioning. Not only are they being picked up more often, they also are being charged more often—

The CHAIRPERSON (Lindsay Tisch): We are on Part 2 and Part 2 is about identifying particulars. I ask the member to come back to Part 2.

Thank you, Mr Chair. It is a fact that when we are talking about being discharged without conviction, it is the judge’s decision as to what those orders will be about. But because of this part, because of this amendment, the police can also make the decision to hold on to their particulars. So regardless of whether someone is to be convicted, the police will be able to hold on to their particulars. It is a matter of these kids being found guilty by the police—not by the judge but by the police.

Part 2 of the bill sets out in new section 34 the detail of how the identifying particulars of the person “may be entered, recorded, and stored on a Police information recording system.” New section 34(2) authorises those same images to be destroyed depending on whether an outcome authorises continued storage. The section, however, does not provide any detail about how the impressions of a person’s fingerprints, palm-prints, or footprints will be destroyed. It does not specify how the photographs or visual images of a person are protected and how they are to be destroyed. All we learn is that the identifying particulars of a person obtained under sections 32 or 33 of the Policing Act are able to be entered, recorded, and stored. Section 32 says that a constable may use “reasonable force that may be necessary to secure the person’s identifying particulars.” Of course, that could well open up another debate about how we define “reasonable force” and what sort of force one needs to use to retrieve a photograph or a set of fingerprints.

New sections 34 and 34A are woefully inadequate in providing details around the collection, utilisation, and storage provisions. We know that there have been trust issues with the police holding such information, and there are concerns also from human rights advocates and civil liberties spokespersons around the whole issue of storage of personal data. I think the anxiety around the storage of personal data is such that the bill should have addressed this. The public has a right to know what is going to happen to personal data that is stored, and also, when a decision is made to discharge that data, how it will be destroyed.

The explanatory note to the bill tries to give some sort of explanation around storage. It tells us: “The storage of youth IP is vital for the detection of youth offenders who go on to reoffend. Early identification of repeat youth offenders is important for ensuring that interventions are put in place to help prevent repeat youth offenders from progressing to the adult court system. It is also vital to solving crimes and providing satisfaction to victims of youth crime.” But a defining characteristic of this bill is that these broad statements go nowhere. There is no detail about the types of interventions that might be put in place. We are told that fingerprints and photographs are vital for solving crimes—a fact that I would have thought was fairly self-evident. We are also told that fingerprints and photographs provide satisfaction to victims of youth crimes, although it is hard to see exactly how that works, either. But what we do not have in any part or clause of this bill are the analysis and the policy justification of why this bill is necessary.

I will leave the last word to Joseph Stafford, who wrote this comment on Facebook this morning: “If you are not convicted, then your details should be erased.”

💬 Hon Members: They are.

Discharged without conviction? That is not convicted. He continues: “Our Gen Z teens are the most likely to infringe on society because that is just how they are wired. Having got bored with the boundaries set for them at home, they now are testing society’s boundaries outside the fence, trying to figure how much rope they have to play with. This is normal and what any actual community should absorb. It takes a village to raise a kid and a teen. I’m not advocating raving mayhem, either, but misdemeanour things like drinking in a public place, driving on a learner’s licence, and the like are all part of a teen’s learning. Call it youthful exuberance. But there seems to be more lax behaviour expectations of white middle-class company directors and their management of hundreds of millions of mum and dad investors’ moneys, which has a far more significant impact on our society. All these folk should be fingerprinted on suspicion. They are going to commit fraud because the form book clearly shows they have a disposition to.” This is a direct quote. This is what the public thinks of this bill. This is what we should have heard if it had gone to select committee. Because it did not go to select committee, this is the only way the public can have its say on this bill.

There are legitimate questions to be asked about this bill, which the Māori Party has tried to bring to the debate by sharing the views of our listening and viewing public. We believe that it is important to have the debate to enable people to engage with the issues. Most of all, when we come to the end of Part 2 of the bill, we come to the word “outcomes”. We want to see outcomes that focus on the potential of our rangatahi and that support our rangatahi to be leaders, not outcomes restricted to the storage of photographs and fingerprints.

I feel that that speech made by Rahui Katene was a somewhat extraordinary contribution. I believe that she raises the issues from a genuine belief that she has an obligation to raise those matters here, but she is mistaken as to the purpose of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. I want to go back to the Police Act 1958. I thank the Minister of Police, the Minister in the chair, for explaining the history. I actually thought that would solve the problem for everyone in this Chamber, but, obviously, it did not, so I will do it, as well—not “as well” as the Minister but “in addition to”; not “as well”, obviously!

Clause 57(3) of the Police Act 1958—and I have it here; it has nice red lines through it, because, of course, it has all been overtaken—states: “If the person in respect of whom particulars have been taken under this section is acquitted, the particulars shall be forthwith destroyed: Provided that this subsection shall not apply if the person is acquitted on account of his insanity or is discharged under section 19 of the Criminal Justice Act 1985 or section 347 of the Crimes Act 1961.” The Minister may correct me if I am wrong, but that is a discharge without conviction, is it not?

💬 Hon Judith Collins: Yes.

Yes. So we have always had in there the provision that the destruction applies on acquittal unless the acquittal is based on a discharge without conviction. As the member from the Māori Party must know, in order to get a discharge without conviction, the facts have to be admitted. That is the whole basis for a discharge without conviction. It is the only “get out of jail free” card that we have in our system. It literally lets one off the hook as long as one admits what one did.

I think it is absolutely plain that the person who wrote that speech in good faith was basing his or her comments on misinformation from this House rather than the accurate information, which is that we have always allowed the police to retain the identifying particulars of everyone whom they collect them from, unless there has been an acquittal, and that has not applied where there has been an acquittal on account of insanity or a discharge without conviction under the varying provisions of the Criminal Justice Act or the Crimes Act. Those provisions have been there since 1958. If the member felt so strongly about them or if her party felt so strongly about them, why did they not raise them in relation to the discussion documents that the Minister consulted on? Why were they not raised in the debate in the House? The truth is that nobody thought the legislation was doing anything other than reinstating the law as it was at that time.

The only reason that the law has had this effect is that some very, very powerfully positive, good legislation for children and young people allows judges to make all of these different orders, rather than sending them off for sentencing in the District Court. I think it is really important that the member takes this into account, because all of the things that she says she wants for our rangatahi and our young people she has actually got in the shape of the Children, Young Persons, and Their Families Act. A series of orders can be made in a Youth Court. There is a hierarchy of court’s responses if a charge against a young person is proved. Why are we hearing the member talking about charges that have been laid? These orders can be made only if the charge has been proved. We are talking about young people who are already off the rails. I accept the Minister’s contention in this particular regard that this hierarchy of responses was decided in order to give young people better opportunities; to get them in front of a drug and alcohol rehab service, to get them under supervision, to get different things happening for them, so that they did not have to face the court.

I am worried that judges suddenly will have to consider that the police will not be allowed to keep information about a young person who is already off the rails. We know that if a young person has already offended, he or she is much more likely to be heading down the pathway of reoffending than not, because we know that the reoffending rate amongst young people is very high. I think it is really important that there is a clear understanding of why we have ended up with the particular options before us. Do we want judges thinking that if they make a decision under one of these orders, then the police will not be able to hold on to that information in case the young person reoffends and it might assist in tracking down the source of the offending, so they enter a conviction in order for the young person to be brought before a District Court for sentence or decision, in which case the Sentencing Act 2002 applies, which means that they will be caught by the changes to the Act that that member’s party agreed with in 2008?

I think we are getting into a circular argument because there is a fundamental misunderstanding. The law always provided for this. The only thing that has changed is that the Youth Court has some options for young people that let them off the hook in terms of being sentenced in the District Court under the Sentencing Act. And that is a good thing. I think everyone in the House would agree that what the Youth Court can do today is far superior to what it was able to do in the past. But where the member seems to depart from reality, in my view, is her misunderstanding about what that will mean in practice. Young people who head off down this pathway end up having multiple offences before they turn 18, and then they end up in the adult system, and there is nothing really we can do to help them once they go over that edge—well, apart from some. But anyone involved in rehabilitation will tell us, and the Minister will know herself, that the cost of rehab for those in their early 20s is far greater than it is for those in their teens, as it is far greater for those in their teens than it is for those in their very early years. I think the whole objective behind this measure is to make sure that we have the capacity to utilise the legislation as it was always intended to be utilised.

I come back to the point that my colleague Annette King made, and I think it is the most fundamental point here. All of these issues are really important—how we look out for young people, how we get them on to the right path. All of those issues are really important, but that is not the purpose of this debate. Legislation that was written in 1958 was modernised after a series of consultations in 2008. This debate is about the fact that that modernisation accidently overlooked that the Youth Court now had a hierarchy of court’s responses available if a charge against a young person was proved. That was omitted, and only in those circumstances could the information not be retained. So it is not a question of anything going wrong for the young person, other than if the young person has already been convicted and their identifying particulars are on the record, that information will be kept. That will mean that if that young person offends again, either as a young person or as an adult, that information will be available to the police, who will be able to track the source of the offending much more quickly than they would otherwise.

I cannot understand why the member objects to that. I think it is very straightforward. It was an error that was made at the time. I did not notice it. Nobody else in the House noticed it. But nobody voted on Part 3 of the Policing Bill in 2008. We had the debate on 27 August, or something. We are ending up having a debate about something that is completely irrelevant to the context, which is a technical error that requires fixing. The use of urgency and retrospective legislation in order to achieve that is an entirely appropriate use of our Standing Orders. I support the passage of this bill.

I move, That the question be now put.

On the vote on the question that Part 1 stand part, I announced that the Ayes were 96 and the Noes were 13. The correct figures should be the Ayes are 106, the Noes are 13. The record will be amended accordingly.

Part 2 is the gist of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. This is the part that seeks to restore the power of the police to revert to the practice they undertook in good faith until October 2010—that is, to retain the youth identification particulars where youth are given some penalty within the Youth Court. This goes to the heart of the matter clearly: what powers do the police have? Clearly, nobody is denying the obvious necessity for them to gather the information. That is how they do their work and achieve their ends. The question of retention is clearly the key to it. I do not accept the notion we have heard from a number of speakers that this is an inappropriate place to be debating some of these issues around the rightness, the appropriateness, of keeping all of the information for any young person against whom a charge is proved. It is very difficult, and I have been listening very carefully. I think it illuminates the discussion a bit to recognise how much difficulty all of us are having with these words “convict” and “conviction”. I return to the earlier point I made that the legislation on children and young people very carefully avoids the notion of conviction, in terms of evidence being presented that is sufficient to satisfy a judge that a young person has offended.

In the specifics of this issue, in support of this bill there is a regulatory impact statement, and it encourages us to believe that the police ought to regain the powers that are contained in Part 2. I quote from the regulatory impact statement, which states: “An ongoing series of challenges to Police processes in historic cases will also impact negatively on the trust and confidence in Police.” This is one of the few attempts within the regulatory impact statement to give us some substantive reason why we ought to revert to the practice of prior to October 2010. I reject the proposition that in any way this matter could reflect badly on the police. The police did not make the determination in Parliament, clearly. In good faith, as police officers, they continued with what was then current practice, and I think it reflects well on the police that, as we understand it, they were the first to recognise that they were acting illegally and brought this to the attention, presumably, of the Minister of Police, or indeed of Crown Law. We do not know. That is one of the many gaps in our knowledge, given that this has been before us for only a very few hours.

I reject the proposition that whatever the outcome of this proposed legislation, and particularly of Part 2, it would reflect badly in any way on the police. The Minister, in her contribution, rejected the inference that some members were saying the police were acting inappropriately. I think the words used were: “the police being mean”. I am not suggesting for a moment that the police are being mean. What is irrefutable, however, is that there is an institutional bias. We know that if we revert to the retention of the youth identifying particulars, there will be many more details kept of young Māori, particularly, than of any other ethnicity. We know this because of a well-proven, researched, and demonstrated institutional bias that young Māori men in particular are more likely to be questioned; if questioned, are more likely to be arrested; and, if arrested, are more likely to be charged.

The CHAIRPERSON (Lindsay Tisch): I warn the member that it is probably unwise to make those sort of comments. I ask you to come back to Part 2.

Thank you, Mr Chair. In the final part of Part 2, in new section 34A, it re-establishes, if you like, the proposition that the Youth Court can make orders under paragraphs (a) to (n) of section 283 of the Children, Young Persons, and Their Families Act. That is, the penalties applied will get more serious, clearly, from a telling-off and discharge through to residential supervision. By simply reinserting those sections, or by accepting the logic of that, we are missing an opportunity to do better. The point has already been made that the 1958 Police Act was very different from the 2008 Policing Act. The social and legal context has changed.

I will be very brief because the issues on this bill have been well traversed, on both sides of the argument. I have listened quite carefully to the arguments put forward by the Green Party and the Māori Party. Although I accept that many of the issues they are raising are genuine issues, they are much wider than the bill as it stands at the moment.

I think it is really important that members make themselves familiar with new section 34A, on the back page of the bill. It makes very clear the circumstances in which a young person’s identifying particulars are able to be kept. Basically it means that, in all of these cases, it is accepted that the young person has done whatever it is that has been alleged that they have done. I think it is really, really important that we make that really clear. The police will not be keeping the photographs and fingerprints of young people who are found to have done nothing wrong. They will not be keeping them. That is really, really important, and I do not think it was clear from some of the contributions we have heard from those arguing against the bill. Those records will be kept only if the person is convicted.

I think it is also really important that we acknowledge, particularly in the case of new section 34A(d) where somebody may be discharged without conviction, that these young people are probably at the highest risk of reoffending, so making sure that the police can identify them and having that information readily available is really important.

I have listened carefully to the debate. Ultimately the change in the law was not intended; the responsible thing for Parliament to do, therefore, is to revert to the status quo. If members feel strongly that the status quo is wrong, there are opportunities for them to bring a bill to the House to change it, but simply legislating to protect a mistake is not the way to do it.