Clendon David: Policing (Storage of Youth Identifying Particulars) Amendment Bill — First Reading Second Reading In Committee 
Text is incorporated into the Bound Volume 
Clendon David: Policing (Storage of Youth Identifying Particulars) Amendment Bill — First Reading Second Reading In Committee 
[Sitting date: 16 August 2011. Volume:675;Page:20868. Text is incorporated into the Bound Volume.] 
DAVID CLENDON (Green) 
: 
 I rise to support the comments made by my colleague Keith Locke earlier and to reiterate the Green Party’s opposition to the Policing (Storage of Youth Identifying Particulars) Amendment Bill. We do so on points of process and of substance. The process issues are clear. We are in urgency. I was handed a paper copy of this bill at about 11 o’clock last night. We did not have an electronic copy. We had no access to the regulatory impact statement. It is very difficult to make substantive decisions and judgments on the quality or necessity of legislation at 11 o’clock in the evening without the benefit of reference to any other people.  
We had no knowledge of the status of the evidence being talked about. We understand that for a number of years—for a period of some 2 years perhaps—evidence was retained which was an illegal act on the part of the police. It was clearly inadvertent; it was something they believed they could legitimately do. It was not until sometime after 8 o’clock this morning when we were able to get access to one of the Minister’s advisers that we knew about the status of that evidence—what the actual mischief was that this bill was seeking to correct. We were speculating until we saw this bill land on the Table an hour and a half ago as to what the problem was that was being addressed here. Certainly our speculation led us to the position the Government is proposing that there is an issue here of potential liability but it is a clear failure of process on the Government’s part not to inform a party in this House of what is going on. That is sufficient reason in itself to oppose the bill.  
The Standing Orders Committee is currently working on ways of streamlining the work of this House to avoid the necessity for urgency or extended hours. All parties in this House should be taken into confidence on matters like this which is a correction of an error—we concede that. An error was made by everybody in this House. There is no dispute about that. But to the extent that we are not taken into the confidence of the Government and given an appropriate period of time to give due consideration to these issues then the Government will have barriers. Any Government will have barriers if parties are not given due time. It is interesting to note that the Maori Party has had 10 days to consider this bill and it has come to a view to oppose it. We respect that view as I hope all others do. We do not know how long Labour has had to consider this bill. We had overnight and less than an hour and a half this morning.  
We are not in essence opposed to correcting errors. From memory we supported the necessary changes to the constables’ oath issue last year or earlier this year. There was a clear and urgent need to make that change under urgency because it potentially endangered a significant number of arrests and indeed convictions later. We are now told that the Government has been aware of this problem since October 2010. There has been ample time and opportunity to give this issue correct and appropriate process and to engage the whole House in looking for a solution to the problem. We are told—I assume in good faith—that nothing in this bill will extend the powers of the police but that the position will simply revert to what was believed to be the status quo post the change in 2008.  
With all due respect to the good intentions of the people making that claim we would like the opportunity to verify it. It is not unheard of that errors do occur either intentionally or by omission. This bill could be giving further powers to the police in relation to the issue of evidence retained or gathered or whatever it might be. We would like to have the time to get an independent legal verification of that point but clearly that is something that will be effectively denied unless we can do it in the course of the time this debate is actually in progress. The point has been made that the police are seeking to restore what they believe is their authority to retain evidence from young people who effectively are convicted in the Youth Court. The exceptions are those who are sent to the District Court for sentencing. Clearly only a high order of offending will involve that reference to the District Court. Under sections 283A to N of the Children Young Persons and Their Families Act which is referred to in this bill there is an extraordinary range of penalties against which young people can be judged and if they are so penalised then the information can be retained.  
Section 283A refers to incidents where young people might be found to have offended by the Youth Court and the judge might choose to discharge them or to issue an admonishment. Basically that is to give them for want of a better word a good bollocking in the court—to tell them off to indicate to them that they might be at the top of the slippery slope and to encourage them to mend their ways. I suggest that judges would use that option only when the offending was at the very very low end of the scale and when the young person has no history of offending and perhaps has a good robust family background. We can assume that judges would exercise their judgment in giving those very very light-handed penalties. At the other end under group 7 responses we are talking about much more serious penalties given to those young persons: residential supervision requirements to pay reparations or quite substantive fines and penalties that effectively could routinely otherwise be applied in an adult court the District Court.  
Under the substantive part of this conversation we would like to challenge whether it is appropriate for example that evidence ought to be retained that a young person’s identifying particulars ought to be retained when the judgment is that the offending was of such a low order that simply a discharge or admonishment from the judge is an appropriate response from the Youth Court. That is a very long way from a single offence or more likely a history of repeat offending that causes the judge to impose a much more substantive penalty along the lines of residential supervision or whatever it might be. We are told there is a likelihood of costs being involved if this error is not corrected and if the correction is not made retrospective back to 2008. That is a genuine concern. Looking at the numbers I think the figure of $6 million pops up at us from the regulatory impact statement.  
I highlight the fact that the possibility of an appeal for a young person who has been convicted would be there only if the evidence previously retained by the police was the sole evidence that led to that conviction—for example a fingerprint. It would be in cases only when there was no other evidence when there was no admission of guilt and when there was not some other means of identifying the culprit who had committed whatever the offence might have been. So the number of cases where there is a likelihood of liability to the police to the Crown would be very very small I would argue. How many cases at Youth Court level rest on a single fingerprint or perhaps a single photograph from a CCTV camera? How often is it that a single piece of evidence is not reinforced or supported by somebody who had observed the carry-on such as a shopkeeper or a member of the community with other evidence being available to the court upon which to base a finding of guilt at the Youth Court level? Having said that I say that doubtless there will be occasions when a young person might potentially see the opportunity to appeal.  
Again I reiterate what my colleague Mr Locke said earlier. The likelihood of young people wanting to once again go through the court process to once again shine the light on the facts of their prior offending and on the fact that they were actually issued a conviction or the equivalent of a conviction is we believe vanishingly small and does not justify this urgency process or the secrecy under which this legislation has been brought to the House.  
We have now been debating this matter for something like an hour and a half or an hour and three-quarters. The rest of the country is probably completely unaware of what we are doing but without getting into pedantics I say that we are making a substantive change here. What is currently not legally allowable police practice will become legally allowable police practice if this legislation goes through so to suggest that it is not a substantive change is actually a little bit ambiguous to say the least. As to bringing into the debate the matter of the 1958 legislation which was amended in 2008 we will say more about that in later speeches. Kia ora.