Penk ChrisCHRIS PENK (National—Kaipara ki Mahurangi): Thank you Madam Speaker. I appreciate the opportunity to take a call on the Ram Raid Offending and Related Measures Amendment Bill. It's been an interesting debate. I've followed it as closely as I was able. I've missed a few minutes here and there of various contributions but I think I've had the gist of it in terms of most of the respective parties' positions.I'll take a slightly different tack in terms of some of the analysis that I think's really interesting in terms of the New Zealand Bill of Rights Act. Actually on a very day in the House—if I can just place that in context Madam Speaker without obviously testing your patience in terms of straying too far from the hill—but we've had an interesting discussion earlier today about the implications of a declaration of inconsistency with the New Zealand Bill of Rights Act by the Supreme Court ultimately and prior to the High Court and Court of Appeal making different decisions along the way. But that was the basis of a report that was made to the House as required by the New Zealand Bill of Rights Act (NZ BORA) now and the House's Standing Orders.Of course we heard all the arguments and actually to be fair I didn't listen to a lot of that debate. Again I wasn't able but I presume that a lot of the reasoning in favour of amending the local electoral age of eligibility to vote was around that idea of inconsistency or possible inconsistency with NZ BORA and it's right as far as it goes that we should debate and discuss that. I'm obviously not going to get into that substantive issue now but from a constitutional point of view it's interesting because we have in front of us tonight a very detailed and interesting and helpful report of the Attorney-General under the New Zealand Bill of Rights Act in relation to this legislation. Actually passing reference was made to it by Debbie Ngarewa-Packer which I think was commendable on her part. I haven't heard much other discussion of this aspect of the debate although of course the purpose of that requirement for an assessment under the New Zealand Bill of Rights Act is to bring to the House's attention the matters that are raised in it.So perhaps I can start by noting that the Hon David Parker has concluded that this bill is inconsistent with the New Zealand Bill of Rights Act on three different bases in terms of the sections of that and then obviously we talk about how that relates to this legislation: the right of a child to be dealt with in a manner that takes account of their age the right to be secure against unreasonable search or seizure and the right to freedom of expression.I'll just pause there lest it should appear as though I'm arguing against the bill. I'm not. My position is consistent with that of other National Party colleagues but I'm approaching the debate from a point of view that recognises that these are fundamental rights that are in play that I'm sure we all would wish to have the outside world know that we've considered and turned our mind to. And of course for the avoidance of any doubt from anyone who's listening or following this debate or perhaps even considering it later—it may even be that the courts are called upon to consider this debate later and it will be very interesting to know what they make of the positions taken by various parties around the House.But of course it's right that Parliament should be able to pass the law even though it'd be inconsistent with the New Zealand Bill of Rights Act. That's the case for two reasons. One is constitutional. This House at least theoretically is responsive to the requirements of New Zealanders and we have some form of electoral mandate or democratic mandate. It's not the perfect system of course but famously it's said to be better than all the others that have been tried and are even less perfect. So it's constitutionally appropriate that we can make laws despite a judgment of inconsistency against the BORA yardstick. But also of course an inconsistency with the New Zealand Bill of Rights Act is subjective to some extent. I don't mean that in a way that is dismissive of any assessment that's been made by any Attorney-General but when we see for example in the analysis of this bill by the current Attorney-General which I think—as I say I emphasise that it is actually a very good piece of analysis. Their policy considerations—I won't say political" but certainly their "policy" considerations and it's a judgment along those lines as much as a legal one—have led him to conclude that the bill is not consistent with the fundamental rights that he's mentioned.So in terms of what actually is done by the Act we've got the case of 12- and 13-year-olds able to be subject to criminal proceedings in the Youth Court in respect of first-time offending and that's a bit of a change from the current regime. So section 25 of NZ BORA concerns itself with minimum standards of criminal procedure and mentions specifically at subsection (i) that a child's age is to be taken into account in the way that they're treated by the criminal justice system. In fact I think again it was Debbie Ngarewa-Packer who has referred to the fact that that debate previously in relation to where the line is drawn be it 16 or 18 in terms of eligibility for voting in local government is an interesting juxtaposition with the debate that we're having now in the House whereby it seems there's agreement between both the major parties and I presume our ACT colleague that 12- and 13-year-olds can be treated in the criminal justice system in the way that's described in the bill.We've also got a mechanism in the bill whereby bodily samples can be ordered by the court to be taken from 12- and 13-year-olds. This is a pretty serious matter. It is in fact for any human being at any age to be ordered to give up a bodily sample even for the legitimate purposes of determining the way that offending might be ultimately avoided in the future—one would hope. And of course that's the ultimate aim and I think we should give credit to the Government for putting forward a bill that is designed to do that. As I say we support it for that reason as well. But nevertheless this is a serious step. So when I read the bill quite recently and realised that that was an aspect of it it did occur me to see what the Attorney-General had had to say in the matter and I wasn't disappointed to see that he'd turned his mind to it and as I say analysed it along the lines of inconsistency. Then finally there's a mechanism within the bill to do with posting content online; that's to say recording the offence this new offence of a ram raid so-called—and that's the colloquial term that we're all using; in fact it's in the name of the bill. But I think the new offence itself is something along the lines of ram raiding—I don't have the wording in front of me but you know it's quite a specific description of a thing that happens with what we know as ram raids. Oh there we go: "Using motor vehicle to damage building and enter it with intent to commit imprisonable offence." So an aggravating factor to film and to post that online and of course that's at least on the face of it inconsistent with or a possible breach or a limit on the right to freedom of expression at section 14 of NZ BORA.These are worthwhile considerations. It's good that the Attorney-General has turned his mind to them and he sets out in a pretty classical kind of fashion the way that this analysis takes place starting with the policy background the clear public interest in addressing the rise in ram raid offending and then considering whether these measures are a justified limitation under those various rights. Of course section 5 of NZ BORA allows that kind of weighing exercise—that calculation if you will—on whether the aims of the policy are worthwhile whether there is a logical connection between the measures that have been taken and whether the aims can be met. And then whether there is a proportionate connection between the aims and whether for example there are other methods that could have been taken that would have achieved the same result in a less intrusive or less rightslimiting way. So as I say I think it's good analysis. It's helpful. For what it's worth I would agree with most of it. I'm less certain on the freedom of expression aspect in section 14 relative to the element of posting the footage online whereas the bodily samples element certainly from such young people as 12- and 13-year-olds I think I can quite readily concur with from an NZ BORA perspective. But as I say as a lawmaker more generally and as a member of the National Party caucus who's considered this bill considered the awful effects of such offending in the community including not least of all actually on the young people themselves and the life into which they are getting themselves I will just say—and others have made comment already—that it's unfortunate that it's taken this long for the Government to realise in the words of the explanatory note that "a wider range of options to deal with child offenders" "a greater range of interventions that could make a more significant difference to stop repeat offending" is actually a worthwhile aim. We've been talking about consequences in that sort of quite broad holistic kind of way for a while. We're glad the Government has joined us on that journey. And so with that care and attention to all the relevant background factors we commend the bill to the House."