Dalziel Lianne: Policing (Storage of Youth Identifying Particulars) Amendment Bill — First Reading Second Reading In Committee 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Policing (Storage of Youth Identifying Particulars) Amendment Bill — First Reading Second Reading In Committee 
[Sitting date: 16 August 2011. Volume:675;Page:20850. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I too rise to support the passage of the Policing (Storage of Youth Identifying Particulars) Amendment Bill through all of its stages under urgency in this House. This is an appropriate use of an urgency motion because the bill is an opportunity for the House to correct what is indeed an unintended consequence of an error in the original law that was passed. I believe that urgency is absolutely appropriate in these circumstances. There is no requirement for the bill to go to a select committee and there is no requirement to call for public submissions because in fact the bill that led to this error being made was subject to a very full and complete consultative process as well as substantial hearings in the public arena through the select committee process. Nobody identified this problem during that process because it was a drafting problem. I was a Minister at the time so I was not on the select committee but I was on the Cabinet legislation committee so maybe I missed it when it went through— 
Hon Pete Hodgson 
: Unlikely. 
Hon LIANNE DALZIEL 
: Probably unlikely. I did read the bills before I attended those meetings. But I did not pick up the particular clause now section 34 of the Policing Act that has led to this problem. 
I think the previous speaker Jacqui Dean identified the answer to a question I was going to ask and that is when did the police first realise that this was a problem. I think the member who just resumed her seat said that they became aware of the problem in October last year. If that is the case I will be asking when we get to the Committee stage why we did not use an earlier opportunity under urgency to deal with this— 
Hon Annette King 
: 2009. 
Hon LIANNE DALZIEL 
: Well I heard the previous speaker say it was October 2010 when they discovered there was a problem. 
Hon Judith Collins 
: It was a bit later once we had clarified it. 
Hon LIANNE DALZIEL 
: Once it was clarified. What appears to have happened is that the problem was identified and no doubt that was within police circles themselves. They would have referred it to the Crown Law Office I would suggest for an opinion. In fact the regulatory impact statement refers to that but it does not say what the dates were. I think it is important because we as a Parliament need to take note of these kinds of situations that we find ourselves in from time to time and undertake a bit of analysis of how we could improve in the future not only to mitigate against these things happening but also to ensure that the House has an early opportunity to address what is indeed a genuine error as this one is. This is an important matter to bring to the House. 
The other point I wanted to make was that yesterday we had quite a significant debate about the use of urgency to pass through all stages a change to the date of the census that arose out of the timing of the Canterbury earthquake and the timing of this year’s census. I felt that that bill should have gone to a select committee with public debate. I want to differentiate this bill from that bill for the reasons I have outlined. I think it is important that we enable legislation like this to go through all of its stages at once. 
Also as a general rule of principle one would not support legislation that had retrospective application but again there are instances where retrospective application is appropriate and this is one of those cases. The reason I am persuaded that this is the case in this instance relates to what costs the police would be put to in defending individual cases in respect of historic cases from 1 October 2008 to the date of the situation being rectified. As the Minister of Police said in her contribution Crown Law had advised that it is open to a young person to challenge a conviction based on improperly retained fingerprint evidence. 
What I had not appreciated until I read the regulatory impact statement was that one of the things the court considers when it is considering an appeal on these grounds is “the nature of the impropriety and in particular whether it was deliberate reckless or done in bad faith. If the Judge finds that the evidence has been improperly obtained the next step is to consider whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.” The statement goes on to say: “If the evidence should have been excluded the court may confirm the conviction set the conviction aside or amend the conviction. If the fingerprint evidence was the only evidence justifying conviction then it may follow that the conviction will be set aside. If however there were other evidence justifying conviction then the Court may nevertheless confirm the conviction. Each case will turn on its own facts.” I think it is that last sentence that really compels us to the view that this legislation must be retrospective in application—“Each case will turn on its own facts.” The police could be required to defend challenge after challenge after challenge rather than relying on a precedent established by the first decision. 
Of course the cost to the Government the police and Crown Law would be considerable. One would have to actually ask whether the interests of justice were served at the same time because sometimes when we are balancing the cost to the Crown and in this instance the police with the interests of justice sometimes the cost to the Crown is the secondary issue and the interests of justice mean that we must pay the price. In this case I do not believe that the case has been made out for that price to be paid. I believe that retrospective legislation is appropriate. 
This law is backdated to the date when the police first established that this was a problem. They sought advice from the appropriate sources of advice they then sought to bring in amending legislation and they worked in collaboration with the Opposition to ensure its smooth passage through all stages in the House. This is a good process and one that I think shows that when Parliament can put its mind to addressing problems then it can do a good job. This is exactly why the Standing Orders allow for urgency and on that basis I am certainly very pleased to be part of the Labour team which is supporting the passage of this bill.