Crimes Amendment Bill

Committee of the whole House

Thank you, Madam Chair. I think, starting with Part 2, one of the things we’ve noticed is the new supplementary departmental disclosure statement that has been put on the Table. I want to start, first, by addressing the addition of the amendments to the Summary Offences Act, noting that this particular part, before coming to the Justice Committee, was originally an extra Amendment Paper by the Minister because it does cover a different area. We’re now just seeing the departmental disclosure statement for the first time.

I think one of the things I want to pick up on is if there have been any follow-up considerations regarding what Te Puni Kōkiri has said regarding a lack of wider consultation with Māori on issues and the concern around unconscious bias with the infringement notice. Noting that when it comes to infringement notices here, in particular, I think we’re looking at, I believe, one of the pages—it’s not in here; it’s somewhere in there. It’s around the fact that, when it comes to infringement notices, all you need is actus reus but not necessarily the mens rea. I want to just, as a starting question, check with the Minister what kind of guidelines will be provided for the police or for anyone, I guess, in this instance, when it comes to addressing the issue of unconscious bias when it comes to, I guess, new section 14AA, inserted by clause 30A.

Committee of the whole House

Thank you, Madam Chair. I’ll just pick up where my colleague Lawrence Xu-Nan left off. The additional supplementary departmental disclosure statement raises a number of issues around the changes to the Summary Offences Act. I think probably my first question to the Minister is that we just discussed theft and changes to theft in the last section—this is a totally different way of treating theft. This is putting in place a regime where it’s an infringement. In the documentation provided by the Government and considered by the Government before putting this Amendment Paper up to amend the Summary Offences Act, it was actually modelled on something similar to traffic infringement. It’s treating theft like traffic infringements are treated, which is different, and there are some issues with it, as you could imagine.

One of the issues that has come up in the supplementary departmental disclosure statement is again and again with the police. We have a problem with the systems that they have in place to be able to keep records of infringement offences. We have specifically stated in this additional disclosure statement that the police have an infringement processing system, the Police Infringement Processing System. It’s a stand-alone IT system, and it’s designed for traffic infringement offences.

The proposal is that this will perhaps be used for these new infringement offences, but there’s a key important point in this document, which is that this system is now end-of-life—so it’s end-of-life technology. So the question really is: what is to be done about a system for keeping a record of these infringement offences, when there is such clear information about the deficits in the IT system? There is mention of perhaps there might be a new system. An update from the Minister: is this new system actually going to be ready for when these infringement offences are put in place, because that seems to be key.

I also am pleased that my colleague asked around the comments of Te Puni Kōkiri. I thought that those deserved to be answered. I have a related question—it’s not the same—and it’s about the feedback that was provided by Mana Mokopuna—the Children’s Commissioner. This also recognised that Māori children might be affected, but also raised a really important point, which I would like to ask the Minister about. That is whether the infringement offences are in direct contrast and contradict the Oranga Tamariki Act 1989.

This is actually the second time we’ve had a crimes bill which has allegedly conflicted with the Oranga Tamariki Act. The other one that we have got in front of select committee at the moment is the Summary Offences (Move-on Orders) Amendment Bill. But there is an allegation there that, in fact, having these infringement offences—and it’d be good to know from the Minister what age range is it envisaged that these infringement offences would apply to, and what is the conflict with the Oranga Tamariki Act?

I know the Minister will be familiar with those provisions in terms of the duties, and from what I know of it—and she will know more about it than I will, definitely—there is an assumption that you act in a way which doesn’t lead to putting a child in the criminal system under the Oranga Tamariki Act, and the allegation here from the Children’s Commissioner appears to be that there may be a conflict with that.

So there’s more to say—there are more questions—but I’ll just leave it there for the Minister and, hopefully, she can get some advice.

Committee of the whole House

Thank you, Madam Chair. Just in response to Lawrence Xu-Nan’s questions: no, no further consultation has occurred in regards to—sorry. And there’ll be no new guidelines coming forward from police to be telling people not to steal, because it’s always been: “You do not steal.” Nothing’s changed in that. Shoplifting is a crime and robbery is a crime. So there’s no new guidelines coming forward to kind of tell people, because the law hasn’t changed.

Police will retain discretion. Alternative options include warnings. This is where it hasn’t changed. Discretion is still there. They have the ability for warnings and alternative actions—for example, for a first-time offender, police may decide a warning is more appropriate and the use of discretion is an operational matter for police. I accept that there are disparities within the criminal justice system. The purpose of the infringement offences is not to address this, but rather to give police another tool to respond swiftly to shoplifting. It allows consequences without creating a criminal record which may reduce long-term impacts.

There were a few questions from a Labour Party member around “How do these proposals apply to youth and to children?” The Oranga Tamariki Act does not override this law, but in saying that, the new offences don’t change anything in relation to the application of the youth justice provisions within the Oranga Tamariki Act. Young people aged between 14 and 17 can already be charged for criminal offences such as theft and are also subject to infringements—an example of that would be driving offences. So police will retain discretion on how to deal with young offenders and which pathways and alternative actions could happen, and warnings when they’re appropriate also.

Committee of the whole House

Thank you, Madam Chair. I just want to talk, essentially, about what this new infringement offence is, because it’s been talked about as if it’s shoplifting, but it actually appears to me to create something quite different, and that’s why it’s called something different. Because the Minister’s got up before and said, “We just can’t steal.” The crime of theft requires dishonest intent. So you’ve, basically, got to know that you’re taking something and know that you’re not allowed to take it and that it’s dishonest to do so. So it’s a defence to theft, for example, if you forgot to pay, because you weren’t being dishonest. It's actually a defence to theft if, for example, you took something thinking you were repossessing your own goods, but, in fact, that was a mistake, because it wasn’t dishonest.

This infringement offence creates a crime if someone, without reasonable excuse, removes property from a retail premise. So my kind of guiding question is: is there a mental element there? What has to go on in the mind of the offender? Must they have dishonest intent? Because if you think about it, if you go shopping and you’re one of those people—you know, and I’ve actually done it myself—where you put the item in a bag. You’ve been to one shop, you think, “Oh, I’ll just grab myself some muesli.”, put it in the bag, and then you kind of get distracted and you walk out. It’s not reasonable to do so. It’s not a reasonable excuse, it’s a blimmin’ stupid thing to do, but it would appear here that if you walk out with no dishonest intent, but without a reasonable excuse, you’re guilty of this infringement offence, which would be shifting the dial substantially, because whilst you don’t get a criminal record, it is an offence—it’s a quasi-criminal offence that you’ve got here.

So that’s my critical point. And what I want to talk about next is how that will work and what the opportunities to defend yourself are. So the question has two parts: is there a mental element and what will amount to a reasonable excuse? Is stupidity, for example, a reasonable excuse?

Committee of the whole House

So in response to a couple more questions from Camilla Belich around upgrades to our systems, because enabling them to make sure that we can manage what’s coming for Police. So Police have budgeted for upgrades to its infringement management system, and the work is under way. But there is a six-month delay for commencement of the infringement offence to give Police time for implementation activities, including the IT changes.

In response to Duncan Webb: the infringement includes a without-reasonable-excuse provision, and we would expect Police to take a common-sense approach to what is a reasonable excuse. The infringements are a way of ensuring that there’s a consequence for these lower-level offending, without overburdening the courts.

Committee of the whole House

Thank you, Madam Chair. We’ve just been talking about the infringement offences, and I just want to focus on the issue of fairness. So, for example, take two young people who commit exactly the same offence: they steal the same item from the same store on the same day, for example. One has parents who can immediately pay a $750 or a $1,500 infringement and the matter is, effectively, dealt with. But the other comes from a family who simply can’t afford it. My question is whether we end up with different outcomes for the same offending.

Now, one young person moves on without a criminal record; the other may find themselves drawn further into the justice system because they can’t meet that financial penalty. I appreciate from other contributions that the Police retain discretion and that an infringement regime is intended to provide a proportionate response, but Parliament should be satisfied that consequences are being driven by the offending itself and not by the offender’s ability to pay or whether they have rich parents. So I’d be interested in hearing from the Minister about what consideration has been given to that issue and whether any safeguards exist to ensure that this does not become a system where wealth determines outcome.

Essentially, what advice has the Minister received on that risk, and can the Minister explain how the Government intends to avoid that situation where a young person from a wealthy family can simply just pay an infringement notice and move on while a young person from a lower income family faces that escalation to the court system for, effectively, the same offence? Thank you.

Committee of the whole House

Look, that’s a hypothetical scenario that that member Dan Rosewarne is speaking to, but what I would say is that individuals have the ability to challenge an infringement directly to the police. If it’s not resolved through this channel, they can challenge it in court.

When it comes to an infringement notice and being unable to pay, a person who is issued a notice who cannot pay at that time may contact the police directly to discuss payment options. It’s not like they have to fork out the money right then and there. If they do not pay the fee, the infringement will be transferred to the courts, where it will be made a court fine, and the individual will need to work with the Ministry of Justice collection services to determine a payment plan.

All they have to do is pay the fine or make an arrangement to be able to pay the fine, and so it’s not about having a rich parent that can come up with the money right away and then ending up at a higher level. They just have to find a way to make the payment over time, if they can’t.

Committee of the whole House

Thank you, Madam Chair. I want to move on a little bit, but I do want to say the that Minister’s response to my earlier question was a little dismissive. I explained “reasonable excuse”, and she said back to me, “Well, there’s a reasonable excuse defence.” The crux of the question is: is there a mental element in this offence, or is it simply the act of having this item that you’ve taken out of a retail premise? That was the question. Is there—to use the Latin—a mens rea, or a mental element, to this offence?

I want to move on to what my real concerns around this are. If we think about it, what you’ve got is the ability of the police to, ultimately—if you look at new section 38CC—email an infringement notice to someone, or to use post. There are some real problems here, because if we see what large retailers are doing now, they’re using CCTV.

We can imagine a situation where someone is identified walking out of a shop with an item, the police are contacted and given this footage, someone says, “I know who that is.” They go and they say “It’s this person here.”, they check their everyday rewards database to find their email address, and they email the infringement notice to the last known email address. It turns out it’s a mistaken identity, which is quite possible, and the email is never seen by the person whom it actually relates to, and, in fact, it’s never seen by anyone because that person doesn’t check their emails. It goes through court, a fine is imposed, the fine isn’t paid, and, all of a sudden, we’ve got a huge problem.

Now, all this is entirely feasible, and we’ve heard already that the police’s IT systems are not yet even up to managing this system. So if we’ve got this pretty much entirely automated system of issuing infringement offences based on, quite conceivably, CCTV footage, how can we guard against the possibility of having infringement notices going to emails that aren’t answered in respect of people who weren’t in the store at the time?

Committee of the whole House

Thank you, Madam Chair. I have a related question to mistakes in the documentation. It’s not exactly the same point, but it’s related to the comments made by the Hon Dr Duncan Webb.

We’ve heard feedback from the Privacy Commissioner, who was consulted throughout this process. One of the statements that the Privacy Commissioner has made in the consultation on the summary offences part of the bill is that the Privacy Commissioner is concerned that it was not clear that the information that individuals who are issued notices under this section would be able to challenge the notice or prove the defence. It kind of follows on from the question that Dr Duncan Webb was talking about around how people would know that they were served. Well, this is, in fact, how they would challenge an incorrect Summary Offences Act notice that was sent to them.

The response from the Ministry of Justice was to say that there was a police adjudicator. I’m interested that a police adjudicator may be involved in some of these instances, and I’m interested in how a police adjudicator would be contacted by someone who had had an incorrect infringement notice in their name—or some aspect of it was incorrect—and what the process would be for people to know that that was the way that they could challenge the notice.

I haven’t had that much to do with police adjudicators. I’m not familiar with exactly how that particular role fits within the normal complaints system, especially as this is an infringement offence. If the Minister could maybe reflect on the concerns that were raised by the Privacy Commissioner, I ask whether she has any comment to make on the concerns that they raised with the ministry, and also what the police adjudicator would be able to do to rectify a situation where there was a genuine error made, because that’s something that the Privacy Commissioner has, obviously, thought was quite serious within the infringement regime.

Committee of the whole House

In response to the Hon Dr Duncan Webb’s question, no mental element is required for the infringement offence. This reflects the lower penalties available for offences other than theft, which has that mental element.

As both of you have asked similar questions: it’s the electronic issuing of infringement notices. This is actually already allowed under the Land Transport Act, and they’ve just copied the same processes as for the Land Transport Act when it comes to issuing infringements electronically. People can challenge those unfair situations. It’s a matter for the police operations, but the process exists, and, usually, it’s done by email and post.

Committee of the whole House

Thanks, Madam Chair. My questions relate to clause 30A, new section 14AA, and they are along the same lines in terms of the questioning around privacy. They are mainly around some of the information that’s listed here in the supplementary departmental disclosure statement, which says that “Police may collect and retain evidence of the infringement. This is likely to include CCTV footage of the incident,”—da-da, da-da, da-da.

I’m interested in the bit around CCTV footage of the incident and the use of facial recognition technology within, let’s say, a supermarket, for example. I guess what we’re keen to understand is if AI technology using facial recognition—which is really prevalent within most supermarkets these days around the world and here in New Zealand—that technology is also known for its errors, particularly when misidentifying people of colour or darker-skinned individuals, and this can often lead to wrongful arrests.

There is a situation from 2024 which I don’t think has been discussed in this committee of the whole House phase. In April 2024, there was a Māori woman named Te Ani Solomon, who was falsely matched by AI as a trespassed thief at a New World supermarket in Rotorua. I guess what we’re trying to show here is that some of the facial recognition technology that is used and matched with CCTV within supermarkets is flawed and it can discriminate against people who are darker-skinned.

That is just objectively what the evidence said and where the misidentification comes from. So what are the steps that will be taken to make sure that people aren’t misidentified where facial recognition technology is used and where that kind of evidence and footage is supplied to police? How can people contest the process if they have been wrongfully identified, as we have seen as recently as April 2024?

Committee of the whole House

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): Thank you, but I think there is a little bit more we can cover in this part. Lawrence Xu-Nan.

Committee of the whole House

Thank you, Madam Chair. I will keep my contribution quite short. It’s to do with the infringement fee amount in new section 14AA, inserted by clause 30A. I do have an Amendment Paper on this which is timed to 20:30:09. One of the questions I have over here is I understand why it says, “(2) A person who commits an infringement offence against the section is liable … by … court not exceeding—”.

The two questions I have are: in general, I want to check the Legislation Design and Advisory Committee (LDAC) guidelines, which suggest that infringement fees should not be more than $1,000 or—I think the wording in the LDAC guidelines should be $1,000 or less. Just checking on the consideration for let’s say, new section 14AA(2)(b) to be above that amount, but also noting that, over here at subclause (a), “if the value of the property removed is equal to or less than $500;”, you’re fined for $750, but if is above $500, you’re fined to $1,500 with no upper threshold. One would assume if you hit above the $2,000 mark, you would then be hit with what we saw previously under theft for $2,000 and above. But I just want to check: is there, again, an upper threshold for the value of the property removed, because even if it’s, let’s say, up to $2,000, if you remove something that is $1,800 or $1,900, but the fine is $1,500, you in some ways are still gaining a couple hundred. I just want to check if that’s something that has been considered and whether there’s been a scale that has been considered for that as well. That’s all.

Committee of the whole House

Just in regards to Tamatha Paul’s question around police and CCTV footage and incident details being collected in that manner: whilst police may collect and retain evidence such as CCTV footage, we recognise that facial recognition technology is an evolving issue and the police privacy commissioner has issued guidance for retailers on the risks of CCTV, and we would expect that would be continuing, and that we’d be keeping an eye on any issues that happen in that space.

Committee of the whole House

Thank you, Madam Chair. Obviously, we’re getting near the end of the summary offences part of this bill, but there is a part that we haven’t discussed in Subpart 2, which is the Schedule, which is the other legislation that is impacted on this. I haven’t been able to have a close look at all of the different bills that are listed there but I just wanted to specifically check with the Minister about the substantive adding to the Aviation Crimes Act. I just wanted to know why that was more substantive than the other bills, which just kind of added these new crimes, which you can maybe understand, to a list. I wanted to know why specifically that was added to the Aviation Crimes Act 1972 in this way.

The other question I had was—and I appreciate that there were some errors in the Amendment Paper that the Minister put forward that were corrected in this, too. Hopefully you don’t come across any of those because those would have been picked up. We did talk about the Oranga Tamariki Act 1989 and new offences are inserted into that Act. I wanted to just check with the Minister her understanding of the impact of listing those particular offences. I know we did talk about the Children’s Commissioner and the alleged conflict between the duties in that Act. I know the Minister said that it doesn’t override the Oranga Tamariki Act, but I just wanted to, for fullness, check that particular point with the Minister while we’re still discussing this part of this bill.

Committee of the whole House

Just in response to Lawrence Xu-Nan about infringement fees and the amount: the amount was considered by the Minister as appropriate, and the Legislation Design and Advisory Committee guidelines were just guidelines, and no, there’s no upper threshold.

The Schedule that Camilla Belich was just speaking to adds coward punch and manslaughter to the Civil Aviation Act, among others.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 54

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 660 deleting new Subpart 1AAA of Part 2 is out of order as being a direct negation of the question.

The question is that the Minister’s amendment to Part 2 set out on Amendment Paper 660 be agreed to.

Amendment agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Dr Lawrence Xu-Nan’s tabled amendments to clause 30A new section 14AA(2)(a) and (b) be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 54

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

A party vote was called for on the question, That the Part 2 as amended be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 54

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Part 2 as amended agreed to.

CHAIRPERSON (Maureen Pugh): We come to the Schedule.

The question is that the Minister’s amendments to the Schedule as set out on Amendment Paper 660 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 87

New Zealand National 48; Green Party of Aotearoa New Zealand 14; ACT New Zealand 11; New Zealand First 8; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 34

New Zealand Labour 34.

Amendments agreed to.

CHAIRPERSON (Maureen Pugh): The Hon Casey Costello’s amendment to the Schedule set out on Amendment Paper 649 is out of order as being inconsistent with a previous decision of the committee.

The Hon Casey Costello’s amendment to the Schedule set out on Amendment Paper 650 is out of order as being inconsistent with a previous decision of the committee.

A party vote was called for on the question, That the Schedule as amended be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 54

New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Schedule as amended agreed to.

Committee of the whole House

Clauses 1 and 2

CHAIRPERSON (Maureen Pugh): Members, we come now to our final debate. This is the debate on clauses 1 and 2, “Title” and “Commencement”.