Smith Murray: Criminal Records (Clean Slate) Bill — Second Reading 
Smith Murray: Criminal Records (Clean Slate) Bill — Second Reading 
[Volume:614;Page:10347] 
MURRAY SMITH (United Future) 
: 
 When I first arrived in this House I had quite a bit of respect for Labour. I remember meeting David Major who was party secretary for National prior to the 1999 election and I said that the only difference I saw between Labour and National was that Labour wore its sins on its sleeves whereas National wore them under its sleeves. What I meant by Labour wearing them on its sleeves was that although I saw Labour in many respects undermining the Judaeo-Christian ethic and bringing in moral relativism that was destructive of our society at least it was upfront about it. National’s arrogance and its disregard even to the extent of abuse of those who are the least well-off in New Zealand society and its drive to benefit the rich at their expense I saw as just as morally reprehensible. Since I have been in this House my respect for Labour has to some extent been undermined. The actions in legislation that have occurred under Labour have been nothing short of destructive of the foundations of our society. It has promoted a misconceived ideology that will create more and more problems for our society and create greater and greater costs to it. 
To some extent Labour seems to be a bit schizophrenic. On the one hand today we have had Labour supporting United Future’s initiative with regard to the Families Commission Bill which will do a great deal to strengthen families. But then we find that it is bringing in measures that will weaken our society. I do not think it is intentional largely because I believe that Labour has integrity. But if it is not intentional then Labour must be doing it somewhat blindly. The example I point to is the Prostitution Reform Bill which can do nothing but undermine the foundations of our society. I also point to Helen Clark’s speech to the Labour Party conference in which she said: “Let me be clear: removing the defence of reasonable force does not mean banning smacking. There is no such defence available to a person charged with assault on an adult. That doesn’t mean the police lay charges every time one adult pushes another. So why the reasonable force defence with respect to children?” So what is she saying about that? It is similar to what is happening in this bill. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: There is no similarity at all. 
MURRAY SMITH 
: What she is saying in both respects— 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: When I am on my feet the member will sit down. The member has drifted way off this bill. I want him to return to the bill. 
MURRAY SMITH 
: Thank you Mr Assistant Speaker. What is happening in this bill—and what was happening in that situation—is a mandate to lie. Clearly the bill is without a shadow of a doubt saying to people that they can lie but they should not worry about that because the Government says it is OK. Clause 11(2) could not be clearer. It states: “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” How much more blatant can we get than that? This bill is in the same category as that—it is all right to lie. It is destructive to our society when we legislate for people to lie. 
There is an alternative model. United Future was very sympathetic to the idea that people who had very old minor convictions should be able to put those convictions behind them. We proposed an alternative model. We proposed that the law would recognise that the clean slate scheme was a privilege that was being given to eligible people because they had maintained a good character record. In order to convey that a person would apply to have his or her convictions expunged following which a certificate would be issued which would avoid any doubt about the matter by confirming that in recognition of a person’s good behaviour the person’s convictions had now been expunged. Any application for expungement would be sent to the police and they would have an opportunity to oppose the application for any of the reasons mentioned in terms of the person’s prior convictions. That would help to ensure that only people who truly deserved the expungement of their convictions would achieve that. 
This bill will protect people who for example have been to Australia have been in prison there for major offences and have come back to New Zealand but who because they have been out of the country for 7 years have no New Zealand record and are eligible to have their prior convictions concealed. Such a scheme would also give people who did not want their convictions to be expunged control over whether that occurred. Sue Bradford told us that she wore her convictions like a badge on her sleeve because she felt proud of them. Well they will be hidden under this legislation. The exemptions contained in the bill could still be provided for by creating a historical record of convictions—in the same way that legislation shows the historical provisions of Acts prior to their amendment—that would be accessible by the exemption authorities. That record would simply be a historical record of previous convictions that the person had but which had now been expunged. It would mean that once a person had completed the 7-year rehabilitation period his or her previous history would be expunged and even if the person reoffended he or she would start with a truly clean slate. 
It would be an easy scheme to administer. United Future considers that although there would be a rush of applications at the early stages they would then settle down to a regular trickle and simply require the Ministry of Justice when applications were received and approved to transfer convictions shown on a person’s record into a history file. Furthermore as people would need to take affirmative action United Future considers that applications would largely be limited to people who consider that their previous convictions are an ongoing impediment in their lives. We would also have proposed that to avoid mandating people to lie about the absence of convictions there would be a restraint on employers as to the nature of questions that could be asked. In particular a question would need to be framed in a way that specified that it excluded convictions expunged under the scheme. That would be a simple matter for employers to implement on their standard employment forms. That is what we suggested should happen. In fact some of Nandor Tanczos’s bill headed in that direction. 
We do not need to go down the track of mandating a lying regime. If we took that other model we would avoid a lot of key problems. I have already alluded to one problem that this bill will cause—namely people who have been overseas for 7 years no matter what convictions they have overseas will still be able to have all their convictions in New Zealand wiped and clean-slated because they have not had any convictions here for 7 years. In addition there could well be people whom the police are aware are recidivist offenders but as it so happens have not been caught for or convicted of an offence for 7 years. Those people may have been charged numerous times but not convicted. Such people will be eligible for this scheme even though they are well known to the police. Also the police may be aware that although a person has had only minor convictions the convictions that he or she has had—for example a string of convictions for theft as a servant—make it contrary to the public interest that those convictions be concealed from future employers. However in this legislation there is no opportunity for the police to object to the concealment occurring if a person meets the criteria of the Act. 
One of the difficulties of this bill is that it chooses to sting employers and does nothing to encourage people who want to use the scheme to comply with it. Under the provisions of the scheme there are huge penalties on employers who misuse the provisions of the bill. But if somebody abuses the bill by lying and claiming that he or she does not have convictions even when under the terms of this bill he or she is not entitled to claim that that person gets off without any censure whatsoever. If there was as United Future will propose in its amendment during the Committee stage a provision that actually stated that people would be penalised if they stated they had no convictions—relying on the clean slate scheme or otherwise—when they did have convictions at least that would send a signal to people that if they do not comply with the terms of the legislation they will not get away with it. As it stands people will read this bill very simplistically. The word will go out through the pubs that a law has been passed that states that if one has old convictions and has not had a conviction for a while one is entitled to lie about them. That is the simple message that will go out. This legislation will be abused all over the country. 
The New Zealand Law Society saw that. It stated: “realistically individuals should take legal advice if the bill is enacted in its present form to ascertain they fall within the criteria as of right. It is doubtful whether that will occur. People with a general knowledge of the legislation may consider themselves to be covered when in fact they are not. It also leaves open an abuse of the provisions with individuals failing to disclose convictions on the basis that they believed they did not need to when in fact they knew they did.” The Law Society could see that. The Maxim Institute stated: “No certificate is to be issued confirming that a person’s old convictions are to be concealed. Consequently the scheme will be open to abuse. Unless they have a very detailed knowledge of the specifics of the legislation devious people will make an assumption that they have the benefit of the scheme when it is not the case and give misleading answers to questions about their past.” 
I could not agree with those sentiments more. That is exactly how the bill will operate and it will simply mean that employees going for jobs will lie about any convictions they have. United Future will oppose the bill.