Smith Murray: Criminal Records (Clean Slate) Bill — Third Reading 
Smith Murray: Criminal Records (Clean Slate) Bill — Third Reading 
[Volume:617;Page:12780] 
MURRAY SMITH (United Future) 
: 
 This bill is very defective. Hardened criminals will be able to rip off employers with impunity and United Future opposes it. I shall give an example of a case I came across in my experience as a lawyer. Sam a troubled teenager finds himself involved in dishonesty offences and appears before the Youth Court. At 15 he leaves school and gets a job as a service station attendant. Because he has been before only the Youth Court a police check shows no record of any convictions. Things in the service station start to go missing. At first they are small things—namely parts for Sam’s car. Then suddenly money starts to disappear from the till. Sam’s boss becomes suspicious but after 6 or 9 months a camera catches Sam red-handed and he is sacked. He goes smugly knowing that he got away with it. He has simply lost his job. He does not have a record for offending because the police were not called. 
Sam gets a job with a carrying company moving home contents. Suddenly $500 goes missing. Nobody knows where it has gone and because the owner cannot prove where it was the carrying company is let off the hook. Sam has taken that money. He starts to take other things and gets away with it. Eventually he takes a DVD player. His boss realises that in effect Sam is the culprit and threatens to sack him. At that stage Sam has become quite streetwise. He gets a lawyer. The lawyer states that under the Employment Relations Act the employer did not give a warning and has no evidence of the offending so cannot sack Sam. 
The employer goes to the police who say that Sam will have to be put on leave with pay during an investigation and they are not sure how long that will take. The employer wants to get rid of Sam and decides to do a deal with the solicitor. Sam tenders his resignation in return for a reference and a confidentiality agreement. He gets a job at a home appliance store which checks and finds that Sam has no record. However before very long things go missing from the home appliance store. The police are called Sam is taken into custody and because it is his first offence he gets diversion and no criminal record. 
He gets a job with a department store. Again he has no record and he is hired. Once again things start to go missing and after a while the police are called. Sam is convicted and sentenced to community service. He now has a record. He decides to go to Australia. It is a bit hard to get a job in New Zealand now because he has a record of dishonesty offences. He gets into more trouble in Australia. He starts to get into theft and burglary and goes to prison for 18 months 3 years 5 years and spends 7 years inside. Sam comes out of prison and returns to New Zealand. He applies for a job as storeman with an import company. It checks his records. He has forged references stating that he worked in Perth for fictitious companies. The employer does not feel it can afford the toll calls and expense trying to chase up those references goes for a police check and finds there is no record of any convictions. Why not? The clean slate bill! Sam has been out of New Zealand and has had no convictions in New Zealand for the last 7 years. Therefore he is entitled to have his previous convictions clean-slated. He gets a clean bill of health. 
The police in New Zealand know all about Sam. They were alerted by the Australians that he was coming back but the Privacy Act means that the police cannot disclose that knowledge and nothing will appear on Sam’s record. Sam has no convictions. In fact in New Zealand as far as this bill is concerned Sam has never had a conviction. So the warning signs that came from his earlier offending will be non-existent. Sam gets the job. 
United Future is sympathetic to what this bill is trying to achieve but fails to do. People who have been penalised for a single offence in their early years carry that stigma for the rest of their lives and receive a penalty that is out of all proportion to the offence they have committed. To have a lifelong criminal record can be very unfair on people. One or two misdemeanours in a person’s youth should not haunt him or her for the rest of his or her life. The period of 7 years in terms of non-offending is a fair reflection of the fact that a person may have rehabilitated. 
Stephen Franks 
: So lying is OK as long as it is in small amounts? 
MURRAY SMITH 
: Lying is not right no. The bill should be restricted to genuine cases. As an alternative that would work United Future has proposed that people could apply to have their record expunged. It is unlikely that someone like Sam would be brazen enough to apply to have his record struck out. We would also suggest that the police having knowledge of Sam’s convictions in Australia should have an ability to object to Sam’s record being expunged and no doubt in that situation they would. 
 We would want to see the sharing of information between Australia and New Zealand in particular with regard to offending. The police should be able to annotate files with details of convictions obtained in overseas jurisdictions but there is no protection like that in the bill. Employers who are seeking details of criminal records cannot get the full picture and where there has been persistent offending beyond this period they should certainly be able to get the full picture. 
This bill is one-sided. It claims that people have “no convictions” when they have them. As much as the Government likes to say it clause 11(2) and it is worth repeating could not be clearer: “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.” Is that not a blatant lie? The legislation could not be clearer in stating that people who have a criminal record can state that they have no criminal record. How can the Government possibly claim that this is not a statutory sanction to lie? It is disingenuous to claim that. 
Under the scheme proposed by United Future on application a person could have his or her conviction or convictions expunged. In that way there would be no conviction. Indeed the member’s bill put forward by Mr Tanczos took the approach of saying that an employer asking this question must phrase it in a way that stated that it was subject to the clean slate legislation. That would have been a preferable way to go about it. 
This bill is anti-employer—in so far as it makes employers very vulnerable to dishonest potential employees and offers no additional protections. In fact a person who misuses the legislation does not attract any penalty for doing so. But the bill does provide for $10000 to $20000 fines for employers who disregard these provisions. However people with a criminal record do not commit an offence or face any monetary penalty if they misuse the legislation in stating that effectively they have no conviction whereas they do. 
People are expecting a quick implementation and I note the Minister’s opening comments that the legislation will be implemented by the end of the year. But I say: “Don’t hold your breath!”. Complex computer software is necessary before the legislation can be implemented. I understand that in the latest report the advisers say that it is “still a long way off”. Because of the complexity required it will be years before the legislation is implemented. United Future’s proposal would have been to have a manual application system. That could have been immediately implemented with no new computer software and would have provided the checks and balances that this sort of scheme needs. 
This scheme has no checks and balances. It may protect those who are carrying convictions well beyond what is a fair period but it is also going to provide protection for the Sams of this world and for other people who will simply use it as a device to further rip off employers. This bill is another misguided response by this Government to a legitimate problem. It does not help the people it needs to help and it tries to do that in a way that is dishonest. That will only exacerbate the problems that employers have in getting honest employees.