Policing (Storage of Youth Identifying Particulars) Amendment Bill — In Committee Third Reading 
Text is incorporated into the Bound Volume 
Policing (Storage of Youth Identifying Particulars) Amendment Bill — In Committee Third Reading 
[Sitting date: 16 August 2011. Volume:675;Page:20900. Text is incorporated into the Bound Volume.] 
Policing (Storage of Youth Identifying Particulars) Amendment Bill 
In Committee 
Debate resumed. 
Part 1Purpose and application of this Act  ( 
continued 
)  
DAVID CLENDON (Green) 
: 
 Before the lunch break I was making some points about the purpose of Part 1 and I wish to continue briefly on that same line. The point has been made a number of times that there is no evidence from 2008 that the idea of amending what was then the practice was intended to be shifted—that the change the police identified some 8 months ago was not intended—and that is fair comment. The point has already been made elsewhere as well that equally there is no evidence that there was no such intention and I will come back to that point in a moment.  
The general proposition agreed to is that identifying particulars should be retained in the event of a conviction and clearly that is the practice of the District Court and indeed of the Youth Court if a young person against whom a charge has been found proven is sent to the District Court for sentencing. I think we need to reflect for a while on why the Children Young Persons and Their Families Act specifically uses language other than the language of conviction. If we look at section 283 of that Act we see there is reference to conviction in some of the higher-order responses that are possible under that section. By that I mean some of the more serious responses in the event a young person has been found guilty of some criminal offending. It is proposed that certain forfeiture of property for example may be applied— 
The CHAIRPERSON (Lindsay Tisch) 
: I am sorry to interrupt the member. It is increasingly difficult to hear the member and I say to members if they want to have conversations then go out to the lobbies. 
DAVID CLENDON 
: Thank you Mr Chair. In the context of section 283 two or three references are made to penalties that might be applied to the young person as if the young person were an adult and had been convicted of that offence by a District Court. I think we need to reflect on that.  
As we said earlier the deal-breaker the point at which the 2008 legislation fell over and created this conundrum for the police and indeed for the House rests on the definition of the word “conviction”. I ask members who have been in this House for longer than I have why it was that when the legislation was being drafted there was specific exclusion that the notion of conviction to the largest extent possible was removed from the Youth Court. I think it is a reasonable proposition that a deliberate attempt has been made to remove the language of conviction—to take away that status of a convicted person shall we say—from young people. Rather the charge can be found and an order can be made against the person. I think we need to consider why that language is so specific and why such pains were taken to take away the notion of convicting a young person of an offence except at the very highest level and I refer to the purely indictable offences—the ones that conceivably carry something like a 10-year sentence.  
Clearly there is a difference between dealing with young people and dealing with adults. An arbitrary cut-off point of 17 or 18 years has been the point of distinction and we could contemplate that but I think for the moment it is sufficient to acknowledge that we treat young people differently. That is an aspect of our contemporary law. It was not evidenced in the Police Act 1958 to which some reference has already been made in this debate. I think we need to acknowledge that in 1958 no clear distinction was made in law between a person and a young person. I say that willing to be corrected but certainly on the very brief amount of research we have been able to do this morning we have been unable to find in the earlier legislation of some 50 or more years ago distinctions in law between a person and a young person. We have moved on from that and I think it is a good thing. Clearly we ought not to treat children or very young people as if they have the judgmental abilities—the abilities to distinguish what is sensible and a good action—of an adult just as we would not sensibly require them to meet the same standards as an adult.  
I think there are very sound reasons why we have changed this language. Fifty years on from 1958 we have acknowledged that young people are different. They are subject particularly in this modern era to very different pressures and expectations. They are growing up in a very different world from that of their peers in the 1950s and 1960s. I think we do need to seriously reflect on that when we consider this bill. Dare I say it with the legislation passed in 2008 which this bill seeks to amend perhaps we did the right thing by accident by excluding young children from the penalties imposed at the Youth Court and from this question of whether we retain their youth identifying particulars.  
It would be helpful I think if the Minister in the chair the Minister of Police took a call and responded to some of the very good questions posed by Labour speakers earlier in relation to the history of some of this and simply reflected on the matter of why we so carefully and deliberately avoid the notion of convicting young people. A conviction in the adult context enables police to retain the identifying particulars of an adult offender. By accident we now have a situation where young people do not have that same penalty imposed on them. I would be very interested to hear from the Minister and I hope she will take a call. 
JAMI-LEE ROSS (National—Botany) 
: 
 I move  
That the question be now put 
. 
KEITH LOCKE (Green) 
: 
 I think it is worthwhile teasing out particularly the Labour argument in this debate and that is that a mistake was made and the intention of Parliament was not reflected in the final bill. Well I would come at it from the point of view of a judge. When judges look at legislation they look for a start at what the law actually says. It is quite clear from any reading of the law as to what it says—that there is an exclusion from taking identifying particulars from young people with low-level offending who have not been convicted as such but have suffered very low penalties for their disobeying of the law. Under section 283 of the Children Young Persons and Their Families Act 1989 there are Group 1 responses up to Group 7 responses. Group 1 responses are when the Youth Court discharges the young person from proceedings without further order or penalty and admonishes the young person. The judge looking at that would think: “Perhaps as my colleague has said there’s a distinction here between young people and old people. That is very much the modern thing so I will read the law as it is written.”  
But the other thing judges do is look at the debate in Parliament particularly at third reading speeches but even at the whole debate. When we look at the whole debate in 2008 on the Policing Act we can see the conclusion—and in the very rushed time we have had some people have looked through all this stuff and they “have not located anything which indicates a specific policy position was taken on this issue.” That is the parties in this House including the Labour-led Government at the time did not put forward in any of the parliamentary debates any specific policy position nor did any other party including the Greens. I was the Green spokesperson on police during that time and spokesperson on that bill and there was no conception that there was any misinterpretation of that particular provision or that there was any policy position that would lead a judge to offer any interpretation other than what the legislation actually means.  
People say: “Oh well you’ve got to go back to the 1958 Act and what that meant.” The 1958 Police Act was written for an entirely different time when as my colleague says there was no differentiation between older and younger offenders there was no Children Young Persons and Their Families Act and there was no Youth Court etc. If the Government had put out in 2008 an options paper saying that one option is that we distinguish between young people and older people and people who have been convicted and people who have not been convicted and if it had referred to the Children Young Persons and Their Families Act and all the rest of it; and if we asked the parties in the House which option will we take—tell members the option the Government supports and then have a debate about it—then there would be some clarity. It would be quite clear what was meant by Parliament.  
I think the fundamental misconception is that both Labour and National are defining Parliament as the Government and that is very offensive to other parties in an MMP climate. We have never been part of the Government. We come to this debate and to all the debates in this House in good faith. We discuss the bills as they are the wording as it is and the motivations as they are put forward. There was no motivation or wording or anything whatsoever to construct the interpretation that Labour is now putting on this bill. Also there was no explanation of how it fitted in with previous legislation including the 1958 legislation on this issue and to what extent that took account of the huge changes in the way we respond to youth offending now as compared with 1958.  
Carol Beaumont said it was drafting error and some words were missed out. Well if that is the case let us see the proof. Let us see the words that were missed out. I do not think that is the situation but I challenge anyone in Labour to show that. 
A party vote was called for on the question  
That Part 1 be agreed to. 
Ayes 106 
New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 9; Maori Party 3; Independent: Carter C. 
Part 1 agreed to. 
The result corrected after originally being announced as Ayes 96 Noes 13. 
Part 2 Amendment to principal Act 
Hon JUDITH COLLINS (Minister of Police) 
: 
 I will take a moment to answer some of the queries that have been raised. For a start I will look at the Police Act 1958 and at the relevant section section 57(3) which states: “If the person in respect of whom particulars have been taken under this section is acquitted the particulars shall be forthwith destroyed:”. In effect that is saying that the particulars of anybody who is charged and found not guilty have to be destroyed. The Policing Act 2008 changed the whole nature of that provision and said essentially that the particulars must be destroyed unless something else has happened. So the emphasis changed to destroying the particulars. Section 34(b)(ii) of the Policing Act 2008 states that particulars must be destroyed “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).”  
Many of the arguments I have heard today from members of the Green Party and the Maori Party would have us think that the previous Parliament thought that identifying particulars should be kept for someone on a diversion but not when proof of guilt has already been given in the Youth Court and where a resolution has been reached. Many would think that that is an alternative resolution and that it is covered in this particular subsection. I can well imagine why the previous Parliament felt that.  
In fact when the issue was first raised as to whether this subsection enabled the police to keep the particular identifying features in relation to youth offenders whose matters had been resolved in the Youth Court—often when the offenders had said they were guilty and the resolution had been agreed to—the police sought advice from Crown Law. There were months and months of discussions between the police and Crown Law because there is a very legitimate case here that would say there is a lot of doubt as to what these words mean and to whom they would apply.  
I have heard the argument that the Police Act was passed in 1958 which was before the Youth Court was established so clearly it does not apply. Well it does apply because the Police Act 1958 has been amended on many occasions over the years which is why the previous Minister of Police Annette King thought it should be reviewed and she was quite right to do so. She was quite right to bring in new legislation and to bring it into a more modern age but that is where this slip-up occurred. The Policing (Storage of Youth Identifying Particulars) Amendment Bill is simply making sure that we remove that possibility—in fact probability—that the wrong decision could be brought about.  
I do not think that is evidence of a conspiracy; I think that is evidence of members of this House trying to do the right thing by the public by victims and frankly by youth offenders who do need to be held accountable for their actions. This bill is not something that enables the police to charge around collecting information just in case one day they might want to charge someone; this is about making sure that they get the right people who have committed the crimes rather than the wrong people. It is also about understanding that the youth we are talking about are deeply troubled or they would not be in this situation. The last thing they need from this Parliament is the sort of argument I have heard today from some members which is that it is all about the police wanting to be mean to young offenders and to pick on them. These young people need help. They cannot get help unless they go through a system like the Youth Court which brings them a great deal of opportunities to change their ways. The Youth Court has been a huge success; we should support it. This bill supports the Youth Court and the work it does. 
KEITH LOCKE (Green) 
: 
 I appreciate that the Minister in charge of the bill has answered some of the questions that have been raised. I think that is very good. It is true that the Police Act 1958 has been amended but from what I can gather section 57 in particular has been amended in only a very minor way and certainly not in the substantive piece that she referred to. It is true that section 57(3) of the 1958 Act talks about holding particulars unless the person is acquitted but it is also true that the second paragraph of subsection (3) talks about that provision not applying if a person is acquitted on account of his insanity or is discharged under section 42 of the Criminal Justice Act 1954. The qualification for section 57(3) uses the word “discharged”.  
In fact it is interesting that when one goes to section 83(1) of the Children Young Persons and Their Families Act 1989 it talks about the concept that young people are not convicted if they come under one of the section’s provisions. The first one is if the court discharges the young person from proceedings without further order or penalty. Again it uses the same word “discharged” to exempt the person from the identifying particulars requirement which is the same wording that is used to exempt the person under section 57(3) of the 1958 Act.  
All that having been said I think the question is—and I think the Minister has now admitted it—that one can have doubts around all of this the meaning of legislation and what the intention was etc. but certainly in terms of what was explicitly stated during the parliamentary debate or in any of the documentation that the Government put out around that debate there was nothing that nailed the interpretation of the 2008 legislation to what the Labour Party or National are saying now. In that context and the in context that a whole lot of young people who have gone through the court system will not suddenly be jumping up and wanting to brought back into the spotlight with appeals there will not be a problem for the Government or society if we consider this in a more considered manner rather than rushing this whole bill through Parliament under urgency. We appeal to the Government at this late stage to change its course and to let us have a longer period to deal with this bill. We have time we can do it and we should not just push it through today under urgency. 
Hon ANNETTE KING (Deputy Leader—Labour) 
: 
 Part 2 of the Policing (Storage of Youth Identifying Particulars) Amendment Bill has one clause. This clause repeals section 34 of the Policing Act 2008 and inserts new sections 34 and 34A. It clarifies the instances under which the identifying particulars of a young person can be stored as intended by Parliament.  
We are talking about young people who have appeared before the Youth Court have been found wanting and have been convicted—a case has been proven against them. These are the young people whose particulars we are talking about. We are not talking about young people who have never done anything are innocent and walking along the streets of New Zealand. We are talking about young people who have been brought before the Youth Court and have had a charge against them proved.  
It has been decided by the Youth Court that there are number of responses it could use. In fact there are seven levels in the hierarchy of court responses if a charge against a young person has been proved. The responses go from quite minor through to quite serious the most serious being to send the young person to the District Court for sentencing. So there is the ability for the Youth Court to make a decision.  
The fact is that this measure concerns young people who have committed crimes and the ability to retain their particulars—Part 2 sets out what those particulars are—and it is plain common sense. Why would we not retain the particulars of young people when they have committed a crime and the Youth Court has made a decision on it?  
Keith Locke has said today that we should come to this bill from a judge’s point of view. I say no he is quite wrong. Members should come to this bill facing up to our responsibility to pass a law that reflects our intent and it is then up to the judges to interpret it. This Parliament is going through a process to ensure that we have a law that reflects our intent.  
I am surprised at some of the comments from Keith Locke because he was the Green spokesperson on the Policing Bill during the 2 years that we—that is the Greens and the previous Labour Government—consulted on it. He met with me on many occasions. He must think again about what he said. He made it sound as though the previous Government knew the mistake was there and did not change it. If we knew we had made a mistake does he think we would have left the bill in that position? If we knew there was a mistake would we not have fixed it? It is nonsensical to say we knew there was a mistake and we did not fix it.  
Of course we did not know there was a mistake in the Policing Bill nor did the Green Party and the Maori Party. If the Maori Party and the Green Party knew that it was a mistake and they wanted to talk about it—or perhaps they did know there was a mistake and they did not want to talk about it. I do not believe that was the case; I believe it was a genuine error—an oversight. Now we have the opportunity to rectify it so we can proceed on in a manner that existed in the past.  
I cannot see why this House would not support this bill. It seems to me that many of the arguments we are having are dancing on the head of a pin. We want to ensure that young people who offend get the opportunities to have different orders made on them so they are not all sent off to the District Court. We would not want that. When one looks at the responses that are available to the Youth Court and are available for young people one can see that many of them will help young people and their families work with those young people and give those families an opportunity to put those young people on the right path.  
So I would say that we ought to be passing this bill as soon as we can. There is nothing wrong in our view in taking urgency on this particular matter. We do not always agree with urgency—in fact we think some of the urgency has been wrong and we have said so—but we are talking about genuine omission in legislation that needs to be corrected. Unfortunately it has been used today by the Maori Party and the Green Party as a stalking horse for other issues and I think that is a terrible shame.  
I do not disagree with some of the points Rahui Katene of the Maori Party has raised about the broader issues but they are not the issues of this amendment. There are many reports on other issues and never did I say to Rahui Katene today that there were five reports on this particular issue. I said there were about six or seven reports on the overall bill that looked at many parts of it and that we consulted on them. No I did not say there were five reports on this particular part of the bill.  
The wider issues are worthy of a debate but they are not what this bill is about and the bill should not today be used as a stalking horse for something else. There is a time and place to raise those issues and that is when they should be raised. An amendment to correct an omission should not be used as ploy. I do not agree with that. I think we should concentrate on the issues before us and make the amendment as soon as we can. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 Before I go on to Part 2 of the Policing (Storage of Youth Identifying Particulars) Amendment Bill I will just respond to some of the issues that have been raised. One of those issues was raised by the Minister of Police who seems to think that because we are talking about the way Maori are picked up by the police we are saying that the police are being mean to Maori. In fact that is not at all what I am saying. I am saying that ethnic profiling exists it has existed for a while and our kids are being picked up more by the police regardless of whether they are doing anything wrong. All they have to be doing is walking down a road and the police are picking them up and taking them in for questioning. Not only are they being picked up more often they also are being charged more often— 
The CHAIRPERSON (Lindsay Tisch) 
: We are on Part 2 and Part 2 is about identifying particulars. I ask the member to come back to Part 2. 
RAHUI KATENE 
: Thank you Mr Chair. It is a fact that when we are talking about being discharged without conviction it is the judge’s decision as to what those orders will be about. But because of this part because of this amendment the police can also make the decision to hold on to their particulars. So regardless of whether someone is to be convicted the police will be able to hold on to their particulars. It is a matter of these kids being found guilty by the police—not by the judge but by the police.  
Part 2 of the bill sets out in new section 34 the detail of how the identifying particulars of the person “may be entered recorded and stored on a Police information recording system.” New section 34(2) authorises those same images to be destroyed depending on whether an outcome authorises continued storage. The section however does not provide any detail about how the impressions of a person’s fingerprints palm-prints or footprints will be destroyed. It does not specify how the photographs or visual images of a person are protected and how they are to be destroyed. All we learn is that the identifying particulars of a person obtained under sections 32 or 33 of the Policing Act are able to be entered recorded and stored. Section 32 says that a constable may use “reasonable force that may be necessary to secure the person’s identifying particulars.” Of course that could well open up another debate about how we define “reasonable force” and what sort of force one needs to use to retrieve a photograph or a set of fingerprints.  
New sections 34 and 34A are woefully inadequate in providing details around the collection utilisation and storage provisions. We know that there have been trust issues with the police holding such information and there are concerns also from human rights advocates and civil liberties spokespersons around the whole issue of storage of personal data. I think the anxiety around the storage of personal data is such that the bill should have addressed this. The public has a right to know what is going to happen to personal data that is stored and also when a decision is made to discharge that data how it will be destroyed.  
The explanatory note to the bill tries to give some sort of explanation around storage. It tells us: “The storage of youth IP is vital for the detection of youth offenders who go on to reoffend. Early identification of repeat youth offenders is important for ensuring that interventions are put in place to help prevent repeat youth offenders from progressing to the adult court system. It is also vital to solving crimes and providing satisfaction to victims of youth crime.” But a defining characteristic of this bill is that these broad statements go nowhere. There is no detail about the types of interventions that might be put in place. We are told that fingerprints and photographs are vital for solving crimes—a fact that I would have thought was fairly self-evident. We are also told that fingerprints and photographs provide satisfaction to victims of youth crimes although it is hard to see exactly how that works either. But what we do not have in any part or clause of this bill are the analysis and the policy justification of why this bill is necessary.  
I will leave the last word to Joseph Stafford who wrote this comment on Facebook this morning: “If you are not convicted then your details should be erased.” 
Hon Members 
: They are. 
RAHUI KATENE 
: Discharged without conviction? That is not convicted. He continues: “Our Gen Z teens are the most likely to infringe on society because that is just how they are wired. Having got bored with the boundaries set for them at home they now are testing society’s boundaries outside the fence trying to figure how much rope they have to play with. This is normal and what any actual community should absorb. It takes a village to raise a kid and a teen. I’m not advocating raving mayhem either but misdemeanour things like drinking in a public place driving on a learner’s licence and the like are all part of a teen’s learning. Call it youthful exuberance. But there seems to be more lax behaviour expectations of white middle-class company directors and their management of hundreds of millions of mum and dad investors’ moneys which has a far more significant impact on our society. All these folk should be fingerprinted on suspicion. They are going to commit fraud because the form book clearly shows they have a disposition to.” This is a direct quote. This is what the public thinks of this bill. This is what we should have heard if it had gone to select committee. Because it did not go to select committee this is the only way the public can have its say on this bill.  
There are legitimate questions to be asked about this bill which the Maori Party has tried to bring to the debate by sharing the views of our listening and viewing public. We believe that it is important to have the debate to enable people to engage with the issues. Most of all when we come to the end of Part 2 of the bill we come to the word “outcomes”. We want to see outcomes that focus on the potential of our rangatahi and that support our rangatahi to be leaders not outcomes restricted to the storage of photographs and fingerprints. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I feel that that speech made by Rahui Katene was a somewhat extraordinary contribution. I believe that she raises the issues from a genuine belief that she has an obligation to raise those matters here but she is mistaken as to the purpose of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. I want to go back to the Police Act 1958. I thank the Minister of Police the Minister in the chair for explaining the history. I actually thought that would solve the problem for everyone in this Chamber but obviously it did not so I will do it as well—not “as well” as the Minister but “in addition to”; not “as well” obviously! 
Clause 57(3) of the Police Act 1958—and I have it here; it has nice red lines through it because of course it has all been overtaken—states: “If the person in respect of whom particulars have been taken under this section is acquitted the particulars shall be forthwith destroyed: Provided that this subsection shall not apply if the person is acquitted on account of his insanity or is discharged under section 19 of the Criminal Justice Act 1985 or section 347 of the Crimes Act 1961.” The Minister may correct me if I am wrong but that is a discharge without conviction is it not? 
Hon Judith Collins 
: Yes. 
Hon LIANNE DALZIEL 
: Yes. So we have always had in there the provision that the destruction applies on acquittal unless the acquittal is based on a discharge without conviction. As the member from the Maori Party must know in order to get a discharge without conviction the facts have to be admitted. That is the whole basis for a discharge without conviction. It is the only “get out of jail free” card that we have in our system. It literally lets one off the hook as long as one admits what one did. 
I think it is absolutely plain that the person who wrote that speech in good faith was basing his or her comments on misinformation from this House rather than the accurate information which is that we have always allowed the police to retain the identifying particulars of everyone whom they collect them from unless there has been an acquittal and that has not applied where there has been an acquittal on account of insanity or a discharge without conviction under the varying provisions of the Criminal Justice Act or the Crimes Act. Those provisions have been there since 1958. If the member felt so strongly about them or if her party felt so strongly about them why did they not raise them in relation to the discussion documents that the Minister consulted on? Why were they not raised in the debate in the House? The truth is that nobody thought the legislation was doing anything other than reinstating the law as it was at that time. 
The only reason that the law has had this effect is that some very very powerfully positive good legislation for children and young people allows judges to make all of these different orders rather than sending them off for sentencing in the District Court. I think it is really important that the member takes this into account because all of the things that she says she wants for our rangatahi and our young people she has actually got in the shape of the Children Young Persons and Their Families Act. A series of orders can be made in a Youth Court. There is a hierarchy of court’s responses if a charge against a young person is proved. Why are we hearing the member talking about charges that have been laid? These orders can be made only if the charge has been proved. We are talking about young people who are already off the rails. I accept the Minister’s contention in this particular regard that this hierarchy of responses was decided in order to give young people better opportunities; to get them in front of a drug and alcohol rehab service to get them under supervision to get different things happening for them so that they did not have to face the court. 
I am worried that judges suddenly will have to consider that the police will not be allowed to keep information about a young person who is already off the rails. We know that if a young person has already offended he or she is much more likely to be heading down the pathway of reoffending than not because we know that the reoffending rate amongst young people is very high. I think it is really important that there is a clear understanding of why we have ended up with the particular options before us. Do we want judges thinking that if they make a decision under one of these orders then the police will not be able to hold on to that information in case the young person reoffends and it might assist in tracking down the source of the offending so they enter a conviction in order for the young person to be brought before a District Court for sentence or decision in which case the Sentencing Act 2002 applies which means that they will be caught by the changes to the Act that that member’s party agreed with in 2008? 
I think we are getting into a circular argument because there is a fundamental misunderstanding. The law always provided for this. The only thing that has changed is that the Youth Court has some options for young people that let them off the hook in terms of being sentenced in the District Court under the Sentencing Act. And that is a good thing. I think everyone in the House would agree that what the Youth Court can do today is far superior to what it was able to do in the past. But where the member seems to depart from reality in my view is her misunderstanding about what that will mean in practice. Young people who head off down this pathway end up having multiple offences before they turn 18 and then they end up in the adult system and there is nothing really we can do to help them once they go over that edge—well apart from some. But anyone involved in rehabilitation will tell us and the Minister will know herself that the cost of rehab for those in their early 20s is far greater than it is for those in their teens as it is far greater for those in their teens than it is for those in their very early years. I think the whole objective behind this measure is to make sure that we have the capacity to utilise the legislation as it was always intended to be utilised. 
I come back to the point that my colleague Annette King made and I think it is the most fundamental point here. All of these issues are really important—how we look out for young people how we get them on to the right path. All of those issues are really important but that is not the purpose of this debate. Legislation that was written in 1958 was modernised after a series of consultations in 2008. This debate is about the fact that that modernisation accidently overlooked that the Youth Court now had a hierarchy of court’s responses available if a charge against a young person was proved. That was omitted and only in those circumstances could the information not be retained. So it is not a question of anything going wrong for the young person other than if the young person has already been convicted and their identifying particulars are on the record that information will be kept. That will mean that if that young person offends again either as a young person or as an adult that information will be available to the police who will be able to track the source of the offending much more quickly than they would otherwise. 
I cannot understand why the member objects to that. I think it is very straightforward. It was an error that was made at the time. I did not notice it. Nobody else in the House noticed it. But nobody voted on Part 3 of the Policing Bill in 2008. We had the debate on 27 August or something. We are ending up having a debate about something that is completely irrelevant to the context which is a technical error that requires fixing. The use of urgency and retrospective legislation in order to achieve that is an entirely appropriate use of our Standing Orders. I support the passage of this bill. 
Dr CAM CALDER (National) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Lindsay Tisch) 
: On the vote on the question that Part 1 stand part I announced that the Ayes were 96 and the Noes were 13. The correct figures should be the Ayes are 106 the Noes are 13. The record will be amended accordingly. 
DAVID CLENDON (Green) 
: 
 Part 2 is the gist of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. This is the part that seeks to restore the power of the police to revert to the practice they undertook in good faith until October 2010—that is to retain the youth identification particulars where youth are given some penalty within the Youth Court. This goes to the heart of the matter clearly: what powers do the police have? Clearly nobody is denying the obvious necessity for them to gather the information. That is how they do their work and achieve their ends. The question of retention is clearly the key to it. I do not accept the notion we have heard from a number of speakers that this is an inappropriate place to be debating some of these issues around the rightness the appropriateness of keeping all of the information for any young person against whom a charge is proved. It is very difficult and I have been listening very carefully. I think it illuminates the discussion a bit to recognise how much difficulty all of us are having with these words “convict” and “conviction”. I return to the earlier point I made that the legislation on children and young people very carefully avoids the notion of conviction in terms of evidence being presented that is sufficient to satisfy a judge that a young person has offended.  
In the specifics of this issue in support of this bill there is a regulatory impact statement and it encourages us to believe that the police ought to regain the powers that are contained in Part 2. I quote from the regulatory impact statement which states: “An ongoing series of challenges to Police processes in historic cases will also impact negatively on the trust and confidence in Police.” This is one of the few attempts within the regulatory impact statement to give us some substantive reason why we ought to revert to the practice of prior to October 2010. I reject the proposition that in any way this matter could reflect badly on the police. The police did not make the determination in Parliament clearly. In good faith as police officers they continued with what was then current practice and I think it reflects well on the police that as we understand it they were the first to recognise that they were acting illegally and brought this to the attention presumably of the Minister of Police or indeed of Crown Law. We do not know. That is one of the many gaps in our knowledge given that this has been before us for only a very few hours.  
I reject the proposition that whatever the outcome of this proposed legislation and particularly of Part 2 it would reflect badly in any way on the police. The Minister in her contribution rejected the inference that some members were saying the police were acting inappropriately. I think the words used were: “the police being mean”. I am not suggesting for a moment that the police are being mean. What is irrefutable however is that there is an institutional bias. We know that if we revert to the retention of the youth identifying particulars there will be many more details kept of young Maori particularly than of any other ethnicity. We know this because of a well-proven researched and demonstrated institutional bias that young Maori men in particular are more likely to be questioned; if questioned are more likely to be arrested; and if arrested are more likely to be charged.  
The CHAIRPERSON (Lindsay Tisch) 
: I warn the member that it is probably unwise to make those sort of comments. I ask you to come back to Part 2.  
DAVID CLENDON 
: Thank you Mr Chair. In the final part of Part 2 in new section 34A it re-establishes if you like the proposition that the Youth Court can make orders under paragraphs (a) to (n) of section 283 of the Children Young Persons and Their Families Act. That is the penalties applied will get more serious clearly from a telling-off and discharge through to residential supervision. By simply reinserting those sections or by accepting the logic of that we are missing an opportunity to do better. The point has already been made that the 1958 Police Act was very different from the 2008 Policing Act. The social and legal context has changed.  
CHRIS HIPKINS (Labour—Rimutaka) 
: 
 I will be very brief because the issues on this bill have been well traversed on both sides of the argument. I have listened quite carefully to the arguments put forward by the Green Party and the Maori Party. Although I accept that many of the issues they are raising are genuine issues they are much wider than the bill as it stands at the moment. 
I think it is really important that members make themselves familiar with new section 34A on the back page of the bill. It makes very clear the circumstances in which a young person’s identifying particulars are able to be kept. Basically it means that in all of these cases it is accepted that the young person has done whatever it is that has been alleged that they have done. I think it is really really important that we make that really clear. The police will not be keeping the photographs and fingerprints of young people who are found to have done nothing wrong. They will not be keeping them. That is really really important and I do not think it was clear from some of the contributions we have heard from those arguing against the bill. Those records will be kept only if the person is convicted. 
I think it is also really important that we acknowledge particularly in the case of new section 34A(d) where somebody may be discharged without conviction that these young people are probably at the highest risk of reoffending so making sure that the police can identify them and having that information readily available is really important. 
I have listened carefully to the debate. Ultimately the change in the law was not intended; the responsible thing for Parliament to do therefore is to revert to the status quo. If members feel strongly that the status quo is wrong there are opportunities for them to bring a bill to the House to change it but simply legislating to protect a mistake is not the way to do it.  
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 106 
New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 12 
Green Party 9; Maori Party 3. 
Part 2 agreed to. 
Clause 1Title  
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 106 
New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 9; Maori Party 3; Independent: Carter C. 
Clause 1 agreed to. 
Clause 2  agreed to.  
Clause 3  agreed to.  
Bill reported without amendment. 
Report adopted. 
Third Reading 
Hon JUDITH COLLINS (Minister of Police) 
: 
 I move  
That the Policing (Storage of Youth Identifying Particulars) Amendment Bill be now read a third time 
. I would like to thank the members of the House for the way in which they have dealt with this amendment bill. This bill seeks to rectify the impact of an unintentional legislative change that had the potential to hinder the effectiveness of the police’s efforts to resolve crime and reduce further offending by youth. By restoring the ability of police to retain the identifying particulars of youth we will ensure that police have one of the essential tools required to reduce offending and victimisation and to increase the overall safety of the public.  
In addition I note that parties in the House have had advance copies of the bill—some parties more advance than others. I would like to thank members for keeping the confidentiality with which I trusted them and I congratulate them on that. I commend this bill to the House.  
DAVID CLENDON (Green) 
: 
 We have rejected and opposed the Policing (Storage of Youth Identifying Particulars) Amendment Bill and clearly will continue to do so. As I said earlier today we oppose the bill on issues of both process and substance. In terms of process in particular we have just heard from the Minister that all parties were given advance copies of this bill—some more in advance than others. We do not consider getting one single hard copy of a bill at 10.30 the night before it is due to be debated to be particularly advance notice. It clearly was inadequate for us to do any substantial investigation consideration consultation within our caucus or indeed to obtain confidential but skilled legal advice. No forward advice was given to us. There was no attempt to streamline the process of this bill through the House by getting the buy-in of all parties in advance of its coming to the House. I made the point in my earlier contribution that had the Greens been taken into the confidence of the Government at some reasonable time in advance of the bill’s being tabled we might well have been able to negotiate an outcome that would not have involved the process we have gone through today.  
Mr Ardern put a challenge to us in his contribution to the House. He wondered why it might be that we were not taken into the Government’s confidence in this matter. I have given that a wee bit of thought in the intervening couple of hours and I have come to the conclusion that the reason the Government is unwilling to take a smaller party into its confidence—an Opposition party—is perhaps that the Government has not yet grasped the reality of MMP. To not give some reasonable advance notice to a party that I can proudly say has proven its ability to accept and respect a confidence I think indicates that the Government is locked into the notion of a two-party adversarial system. I do believe that the work of this Parliament would proceed more smoothly and get better outcomes if members on all sides recognised that we are in a new context.  
Then there is the issue of retrospectivity. Effectively one major component of this bill is that it will be retrospective. It will if you like validate the actions of the police between October 2008 and 2010. We are told it will protect the Crown and the police from any possible liability from litigation and from appeals of convictions that may have depended upon information that was retained illegally. I do stress the point that we know the police were acting illegally but they did not know that and there was no reason they ought to have known. I make no criticism of that action.  
However I think we have to respect that retrospective law is most often bad law. There are very clear situations where it ought not to be opposed and we recall a recent example of that. The Greens had no opposition to the issue of the constable oath. That was finely nuanced wording that put the possibility out there that constables did not have the power to arrest. We had no objection. It was very clear-cut and obvious. This is none of the above. This is far from being a similar case. Retrospective law is anathema to this House to the extent that protections against that appear in our New Zealand Bill of Rights Act. I quote from section 26 of the Act: “No one who has been finally acquitted or convicted of or pardoned for an offence shall be tried or punished for it again.” There is a clear message within that. It is clearly codified in our law that we do not change the law after the event except in very exceptional circumstances. It may well be the case that this law needs to be changed. However there is no justification for the way in which it has been done—to put it through without the benefit of legal advice or opinion without exposure to the public gaze and without even giving participants in this Chamber reasonable time to consider their views gather evidence and undertake some sort of commentary on it.  
We are told that the Crown is at real risk of potentially some multimillion dollars from litigants who might seek to appeal against conviction. I think the scale of that risk does not justify the degree of speed secrecy and urgency in the passing of this legislation. A contributor from the Labour Party referred clearly in jest to a trillion cases out there where young people and their lawyers might choose to attempt to pull back a conviction and to have a finding overturned at the Youth Court level. I reject that completely. We have only to use our common sense to think it through. There would be only a very few cases out of the 1200 or so that have been talked about where the finding rested solely on one piece of evidence that had been retained be it a fingerprint a photograph or whatever it might be. Any opportunities even for an opportunistic lawyer to go hunting to have a conviction overturned would be vanishingly small.  
This House does make mistakes and it will continue to make mistakes because we are all human beings and long may that continue. However mistakes carry cost. I have heard several times the explanation that when young people have committed offences they must be punished for that. If this Government puts itself at risk of some cost because of a mistake made so be it. The degree of secrecy of urgency is not balanced by the degree of real risk of the likelihood of appeals against this.  
We heard a revealing commentary from the Minister in her contribution to the extent that she indicated that these young people who are offending cannot be helped unless they go through some process like a Youth Court. I reject that. I think we can do a great deal to help our young people stay out of the courts to keep away from this register and away from the notice of the justice system if we invest heavily and well at an earlier stage in their development. We could have a very different debate today about the $1.2 billion in the corrections budget for example that could be spent in so many better ways that would absolutely reduce youth offending adult offending and recidivism.  
Finally I refer to the challenge I put out. Ten months ago the police realised that they had been getting it wrong albeit with no blame to them. Clearly in the intervening 10 months they have not been retaining information. They have been acting in accordance with the law as it is currently written. The challenge I put out is to ask where the evidence is that that has caused a real problem. We have heard that in the absence of retaining information about these young offenders who have been found guilty of some offence there will be major and serious repercussions that they will get away with further offences and that there will be significant adverse effects from that. Where is the evidence? Not one speaker from the Government pointed us towards any information from the police that said that their job became harder that they had a more difficult time locating offenders and that they had a more difficult time proving who had committed some crime against the local society.  
I am very surprised by that. I would have thought that that for me would be a very compelling argument—if I had a document that contained evidence from the police that said their job was made more difficult and they had more difficulty locating offenders or getting orders against them in the Youth Court or at the District Court in the absence of being able to retain that information.  
A certain quiet has descended. I do hope that from the Government’s contributions we will hear that such evidence exists that an empirical study has been made and that this error which apparently was made did have that adverse effect in the last 10 months. We know that if young offenders are going to reoffend they tend to reoffend quite quickly. They are captured in some sort of cycle of offending. I would advocate that if the seriousness of this error had been such as has been put to us today we would have seen evidence of difficulty experienced by the police. I look forward to hearing that evidence from the Government. Kia ora. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I wish to traverse in the third reading of the Policing (Storage of Youth Identifying Particulars) Amendment Bill the sequence of events that brought us to today in respect of this bill.  
The starting point for this is of course the Police Act 1958 section 57(3). It states: “If the person in respect of whom particulars have been taken under this section is acquitted the particulars shall be forthwith destroyed: Provided that this subsection shall not apply if the person is acquitted on account of his insanity or is discharged under section 19 of the Criminal Justice Act 1985 or section 347 of the Crimes Act 1961.” This provision referred to particulars and the particulars in this case include his—and of course this was written in the masculine gender in those days; we did not have these nice gender-neutral pieces of legislation that we do today but given the criminal offending statistics it is probably appropriate for this bill—photograph fingerprints palm prints and footprints and may use or cause to be used such reasonable force as may be necessary to secure these particulars. So that had been the law since 1958 which is of course quite some substantial period of time.  
It was timely that the new law the Policing Act took effect in 2008. It was 50 years since the previous law was enacted and yes there had been a myriad of amendments. I think the former Minister the Hon Annette King highlighted it as more of a patchwork of legislation rather than a complete whole as the Policing Act 2008 was want to be. The Policing Act 2008 was a major change in that it modernised the law. There were certain features of the law that it wished to replicate but in a modern sense and not to derogate from it. Some of the language as we have already heard certainly needed to be updated—“if the person in respect of whom particulars have been taken under this section is acquitted the particulars shall be forthwith destroyed.” Of course that highlights essentially that those particulars were kept unless the person was acquitted and even when the person was acquitted if it was acquittal as a result of an insanity finding or there was a discharge without conviction then that exception did not apply and the particulars were retained.  
This law has always been about the police’s right to hold on to information that they have collected from people in investigating a charge but only being allowed to retain it on securing a conviction. Obviously the law allowed for two instances in the good old days in 1958 which is actually prior to my date of birth where they were allowed to keep that information. One was acquittal on the basis of insanity. That is because in many cases—and I have spoken to people who have been the family of murder victims for example—somebody has been acquitted by reason of insanity. The family of the murder victim find the acquittal incredibly difficult to deal with because of course the person has committed the act but is not guilty of the offence because he or she does not have the mens rea for the offence to be committed. So that person is not capable of forming the intention and not capable of pleading in the case. In that instance the Parliament of the day decided that it was in the best interests of justice that that information be made available and continue to be able to be retained by the police.  
It is the same for those people discharged without conviction. We have heard a lot about discharge without conviction in this House today. It is simply nonsense to suggest that this somehow undermines the status of a discharge without conviction because in order to get a discharge without conviction the facts must be admitted. A person has to admit that he or she undertook the acts complained of and committed the offence then that person is discharged without conviction. It is a “get out of jail free” card. It is literally that. I believe that there has been a complete misunderstanding of the nature of that because the facts are admitted. Given that the facts are admitted and the fact that under those circumstances that would be the only circumstance where the police could not retain those particulars it seems to me that a judge would be less likely to discharge without conviction if he or she thought that that would stop the police from using that information in the future. Sometimes when people are given a “get out of jail free” card they use it and other times they do not. I think that a judge might well be mindful of that fact and say “I’m not prepared to take that risk so I’m not going to give that person a discharge without conviction.” I think we should be cautious about following that particular line as proposed by the Maori Party.  
Then we come to the Policing Act 2008. Really all the Policing Act did that was different was that it talked about an alternative resolution being imposed where the person admits to an offence like diversion. Given that discharge without conviction is an admission of offence and here are some alternative resolutions to be imposed where a person admits to the offence the same thing now applies in our Youth Court. In fact we have now as I said in the Committee stage in the Youth Court a hierarchy of court responses if the charge against a young person is proved. All this does is give the court the power to be a little more lenient perhaps a little more leaning towards an outcome that would be better for the young person’s health and well-being and maybe leading them off the trajectory the pathway to crime that they are on at that time. I think that under those circumstances there is no question in my mind that there was a sense in Parliament when this law was passed in 2008 that the alternative resolution area was an area where the police were going to be allowed to retain those identifying particulars.  
The only reason we are debating this issue today is that young people have better options available to them through the Youth Court and this clause does not reference those options. That is it. That is the only reason we are even debating this today. It is on that basis and also on the basis of this one statement in the regulatory impact statement which I feel sums it up: “There is no evidence of a policy decision during the development of the Policing Act 2008 to reduce the circumstances under which Police could retain youth IP.” The reason there is no evidence of a policy decision during the development of that Act is that there was no policy decision to reduce the circumstances under which police could retain youth identifying particulars as opposed to any other identifying particulars. I believe that it is an appropriate use of this House’s time under urgency to pass a law through all of its stages in order to rectify a genuine mistake when there was no policy decision that was upset as a result. For me it is a pretty straightforward conclusion.  
The final point I want to make is this: I would normally rail against any form of retrospectivity. Yes I did use the word trillions because it was just the word that came into my head. The truth is that if this bill had gone to a select committee then every lawyer who has represented a young person in a case where the police had relied on fingerprints as any part of the evidence against a young person—I do not think photographs would be the reason for the conviction—would not come to the select committee to tell it how to improve the legislation. They would go straight to their clients to say “We can get you off. We may not be able to guarantee that we can get you off but we have a jolly good chance because there is no precedent value for this where there is only one item of evidence. So we may have a better chance.”  
The truth is that very few people from those examples will be in that situation but I do not think it is a justified use of this country’s expensive judicial system to even go down that track. That is why I support both the retrospectivity and the substance of the changes. They are minor technical amendments to satisfy a mistake made in 2008. 
JACQUI DEAN (National—Waitaki) 
: 
 When the Policing Act of 2008 was passed it was assumed that the legal situation relating to the police’s ability to retain identifying particulars of youth was carried over from the Police Act of 1958. It was not so the Policing (Storage of Youth Identifying Particulars) Amendment Bill we are debating today seeks to rectify that position. I commend the bill to the House. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 Tena koe. Immediately before I came into this House I spent a profitable half hour talking with Deborah Morris-Travers from Every Child Counts sharing our enthusiasm and our energy for a strengths-based approach to our tamariki. She provided me with a report entitled  
He Mano Ra: One thousand days to get it right for every child 
. Those 1000 days relate to the first 3 years of life and the 1000 days of a parliamentary term. It is a wonderful concept: the incentive and the inspiration to ensure that our children are well nurtured and that we place value on policies that lead to positive outcomes for our tamariki and mokopuna. I thought about what a complete contrast it is to the focus of this House today which has dedicated hours of debate to keeping photographs and fingerprints of youth offenders. 
The Green Party and the Maori Party—the only two parties opposing this Policing (Storage of Youth Identifying Particulars) Amendment Bill and making the effort to speak out and speak up on behalf of our people—have received the wrath of the House for daring to oppose this bill. We have been told that it is simply a technical issue and that all the bill does is restore the legal position under the Police Act 1958. 
Tere Harrison in writing to the Maori Party about her response to this bill has acknowledged how critical it is for this debate to be held. I share her views which put forward another position: “That would have to be the immediate concern under urgency will prevent select committee process and public submission. That’s a gross (and suspiciously a deliberate) misuse of urgency. Unfortunately not all parties are present in the House to vote against it”. That of course is the nature of urgency: the process of public scrutiny is shortcut or in the case of this bill completely avoided so the onus is placed on all parties to take up the issues on behalf of the people who have placed them in this House to speak on their behalf. 
The Maori Party has therefore taken every effort to ensure that the views of Maori—the strong and independent views of Maori—are placed on the record of the debate on this bill and indeed every bill in the urgency motion. We will continue to do that whether or not we receive the reception we hope for because we are conscious as Tere Harrison has also pointed out of the importance of the United Nations Convention on the Rights of the Child in particular article 3 of that convention which requires that all “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being”. 
Our focus in raising the questions we have is to bring to the House the opportunity to talk about youth well-being rather than simply to promote yet another forum for politicians to talk about the perils of youth and the need to hold the fingerprints of youth who have been admonished by a judge. I really recommend that members look carefully at section 283(a) to (n) of the Children Young Persons and Their Families Act. These provisions for children to be admonished for young parents to attend a parenting programme and for young people to attend a mentoring programme are now provisions for which the fingerprints and photographs of these young people are kept. I suggest that Mr Hipkins in particular looks at this detail. These orders from very good legislation were always intended to focus on child and youth well-being not to be fodder for this Policing (Storage of Youth Identifying Particulars) Amendment Bill. 
I have been greatly disappointed by the nature of the debate today which has tried to close down discussion on impacts for youth and instead focus on the mistakes of the statute. At the end of the day one has to ask: if this bill was merely a technical issue why were the name and the nature of the legislation kept secret until mid-morning today? According to the  
New Zealand Herald 
 the explanation for the secrecy was fears the bill might lead to a flood of legal challenges. That same paper suggests it has been the best kept secret in the world with discussions between the police and officials taking place since 2010 when the problem was first identified. 
We have been talking in the House today about the fact that fingerprints and photographs have been improperly retained ever since the Policing Act of 2008 was implemented. The Minister of Police told the  
New Zealand Herald  
that the police had been holding hundreds of records that should have been destroyed under the present law which have now been destroyed. So in effect the Minister has confirmed that unlawful practice by the police has taken place with the police retaining information that should have been destroyed. 
The House needs to know whether the police hold any records that have been collected over the past 3 years. If so have they been held by the police in breach of the current law and if not then why is the bill being made retrospective? This little bill containing just four pages has been described as necessary to rectify a loophole in the law. But I have asked the House to focus on the bigger picture—that is the group being targeted in this law. We are told in the explanatory note that this group could comprise about 1200 young people a year—that is young people who have proven outcomes in the Youth Court and orders made under the Children Young Persons and their Families Act. Yet again we have law that focuses on crime and offending on youth offenders and on repeat offenders. This is a law to enable the police to retain the identifying particulars of young people who have a charge proven in the Youth Court and who have had an order made by a judge. 
I bring us back to the views of the public—those people who have contacted our office over the morning to share their feedback. Sharlene Pearce shared her view which I quote for the record: “I do however believe that ‘where attention goes energy flows’ and that perhaps in the long run (another day) we should look at a solution to changing the attitudes of people looking at our youth in a negative way. i know that it would be a total paradigm shift for society though! It’s seemingly impossible! But could we focus on the positive instead of the negative I can see some people have very strong feelings about the institutional racism we inevitably face.” A similar view was shared by Maryanne Rapata: “continue to oppose it Minister hard to fathom that some people are so naive to think that only serious offences and offenders data will be kept. Would hate to think if my moko shoplifts when he is a minor that the offence will be hanging around his neck for the rest of his life. People change as they grow older circumstances change but his offence history won’t. Hoha crime is the target for this bill not serious crime. It’s saying once a crim always a crim. I don’t want that for our kids or in fact anyones kid”. 
The most consistent comment made by other parties in this House in response to the arguments put forward by the Maori Party and the Greens has been that we limit our comments to fixing the loophole on the law rather than stretching out any further. But if we listen to the views of the public we can hear a focus on forgiveness on rehabilitation and on restorative justice. We have not heard the public calling out for youth who have a charge in the Youth Court or who have received an order made by a judge to be fingerprinted photographed and have their data retained. I remind the House that this bill allows the data to be retained of young persons who have been admonished young persons asked to attend a parenting education programme and young persons asked to return to the court 12 months on from their first appearance. If the House thinks that people who have admitted to a charge necessarily have committed the offence they admitted to then it is living in an alternative universe. So many of our kids go to those courts and say “I didn’t do it but hey if it’s going to get me through faster I’ll say that I did.” We have to be aware of those issues. 
I leave the final word to Aneta Timu: “I’m sure even police can appreciate that we all make mistakes and if we learn from them we deserve to move on unstigmatised”. Will this bill enable the great potential of our youth to be supported? Will it facilitate a second chance? The Maori Party does not think so and we will continue to vote against it. 
A party vote was called for on the question  
That the Policing (Storage of Youth Identifying Particulars) Amendment Bill be now read a third time. 
Ayes 106 
New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 13 
Green Party 9; Maori Party 3; Independent: Carter C. 
Bill read a third time.