Dalziel Lianne: Policing (Storage of Youth Identifying Particulars) Amendment Bill — First Reading Second Reading In Committee 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Policing (Storage of Youth Identifying Particulars) Amendment Bill — First Reading Second Reading In Committee 
[Sitting date: 16 August 2011. Volume:675;Page:20880. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 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.