Ardern Jacinda: Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill — In Committee Third Reading 
Ardern Jacinda: Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill — In Committee Third Reading 
[Volume:660;Page:9292] 
JACINDA ARDERN (Labour) 
: 
 I have a lot to say on Part 2 of the Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I think Part 2 demonstrates the far-reaching effect of an issue that has been the source of quite a lot of discussion throughout the debate. That issue is the extension to capture 12 and 13-year-olds in the Act because that crosses over into the Criminal Investigations (Bodily Samples) Act which we find amended in Part 2 and it has some impact on that Act. Those on the Justice and Electoral Committee will know that we have only recently made significant changes to the Criminal Investigations (Bodily Samples) Act. The way that children and young people are captured in the Act was the source of quite a lot of discussion. I want to touch on that in my contribution. As Chester Borrows a member of the Social Services Committee has pointed out it was his view that the provisions around 12 and 13-year-olds being able to go through the Youth Court were essentially a matter of filtering and a matter of expediency. But I think this part points out that the provisions make much more of an impact than that. 
Part 2 cross-references section 8(1A) of the Criminal Investigations (Bodily Samples) Act 1995. I want to quickly just reflect on that section which reads: “However a suspect who is a child or was a child at the time an offence in relation to which he or she may not be lawfully prosecuted (being an indictable offence other than murder or manslaughter) was committed may consent to the taking of a buccal sample as a result of a Part 2A request.” What we see there is that there are elements of compulsion available to police for the taking of buccal samples for offences such as murder and manslaughter because we acknowledge that as it stands the 12 and 13-year-olds charged with those offences in our system are already able to be taken through a higher level of court. That section essentially says that for everything else compulsion does not apply; it is voluntary. 
Then we come to Part 2 of the Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. I do not recall there being great lengths of discussion in the select committee about this part but I want to talk about what is implied by this part. If we look at it we see that replacement clause 41(1A) of the bill says that “However a suspect may in relation to an indictable offence consent to the taking of a buccal sample as a result of a Part 2A request if the subject is a child or was a child at the time the offence is alleged to have been committed and cannot lawfully be prosecuted in relation to that offence because it is not an offence of any of the following kinds:”. Before in section 8(1A) of the Criminal Investigations (Bodily Samples) Act we had just the offences of murder or manslaughter. Now we have an indictable offence as well. Also going on are two more criteria in clause 41(1A)(i) and (ii) of the bill: “that is alleged to have been committed when the suspect was aged 12 or 13 years; and for which the maximum penalty available is or includes imprisonment for life or for at least 14 years:”. I want to seek some clarity from the Minister for Social Development and Employment Paula Bennett on that clause. I accept that I may have misinterpreted it here but I do not believe I have. Prior to that we had the case where compulsion in respect of taking buccal samples could be applied for murder and manslaughter. Now we are saying that—outside of murder manslaughter and indictable offences with a penalty of up to 14 years—for everything else it is voluntary but within that compulsion can be applied to 12 and 13-year-olds. That is the only assumption that we can make by the reference in this Part 2. 
So I would like to seek some clarity from the Minister on that. The reason for that is this: when we discussed the bodily samples bill in the Justice and Electoral Committee the direction from the Minister of Justice was clear. That was that he held grave concerns about the creep that could have occurred on the basis of that legislation. Direct reference was made to the idea that we do not want samples being taken in the backs of police cars from young children without guardians who are there or available. We went to great lengths in that bill to make sure that we cross-referenced the Children Young Persons and Their Families Act and made sure that we carried over the provisions that apply to an interview situation where a guardian or a caregiver must be given the opportunity to be present. We carried over those provisions for certain classes of buccal samples when taken from young people. It seems to me that we did not discuss again those same kinds of protection for our 12 and 13-year-olds in relation to the broadening of that power for those groups. I have great concerns about that. I ask the Minister to clarify the intention and also whether the change was discussed with the Minister of Justice. I certainly think it is a clause and a proposal that would have been gratefully received and discussed by the Justice and Electoral Committee when we originally discussed the bodily samples legislation. I think we would have had something quite substantive to say on that extension that broadening of scope and power. 
I guess again that that all comes back to the flow-on as I mentioned of the broadening out of the way we treat our children in our legislation because this is not just a filtering or a streamlining of our Youth Court and Family Court processes; it has a much broader effect. The importance of this clause is reflected in the fact that we now as a consequence are in breach of our obligations under the UN Convention on the Rights of the Child. I would like to hear the Minister’s thoughts on the impact of those changes on that convention because—very recently I know—the Government had an opportunity to appear before the United Nations Human Rights Council in Geneva but did not mention this bill; it did not mention Part 1 let alone Part 2. Not only were we already in breach based on the way that our 17-year-olds are treated in the youth justice system but rather than fixing that the Government broadened the whole thing out and brought in 12 and 13-year-olds just for good measure. They are children; as we have continually highlighted throughout this debate they are still children. That is what I would like to put to the Minister. 
The reason why the UN obviously has a broad definition of whom it considers to be children in that convention and why it is important that they be treated differently is based on research and on evidence. It is based around the ideas of brain development the impact of young people being in what is deemed a pseudo-adult criminal justice system and the long-term impact on those children being exposed to an overtly punitive form of criminal justice. I would like to hear the Minister’s reflection on our obligations because Part 2 I think is in direct contravention of that convention as well. I know for instance that Simon Power either in the lead-up to or after his appearance before the United Nations Human Rights Council in Geneva stated—and I think this is a good quote because I do agree—“It’s important to front up with our own situation so that we can credibly discuss the challenges facing other countries.” There is an acknowledgment there by the Minister of Justice that in order to maintain our credibility on the international stage we not only need to be present and be ready to be scrutinised but also have to hold our own in this forum. We need to make sure that we maintain the bar set by the United Nations. In many other respects we do but this is a fundamental failing. I think that it is slightly disingenuous to have said that we can credibly discuss the challenges facing other countries only if we front up with our own and then not even discuss what we were debating at that time back in the New Zealand Parliament and in the Social Services Committee as part of the parliamentary process—these fundamental changes made through the Children Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill. 
I ask the Minister for Social Development and Employment whether she would not mind addressing the points I have raised around the Criminal Investigations (Bodily Samples) Act and the impact of changes in that legislation because it is reasonably detailed. The changes there mainly come through implication rather than direct reference so I would like a little more clarity around those provisions. I also would like to know what discussions were had with the Minister of Justice and the Ministry of Justice on those provisions because I think quite rightly that there have been concerns about the very swift broadening of powers around bodily samples and DNA testing in New Zealand.