Ignorantia legis neminem excusat

For the Police to act inconsistently with their own governing legislation once is bad. For them to do it twice is even badder

So, that's one of life's little mysteries solved, then.

What mystery, you ask? Is it whether a large NZ company could ever run a promotion involving the All Blacks that is so stupid that even the normally blind-worshipping-of-our-national-team-to-the-point-of-mania general public revolts against it? Well, that's not exactly what I mean (although it's nice to have had that issue cleared up, too...).

Rather, Parliament has been sitting under urgency this week to shuffle through the Government's legislative programme and get some stuff onto the statute books prior to the Rugby World Cup taking over our every living, breathing moment. Most of this has involved the "ordinary", non-threatening sort of urgency where the sitting hours of the House simply get extended to allow more time for the legislative debates and votes to take place. (I note, though, that this invocation of urgency has eaten up a Members Day - which might may make Deborah Coddington's theory raised here a little more likely, as now there are only 2 more left before Parliament calls it quits for the election.)

However, as first pointed out by I/S, and expanded upon here, included in the Government's reasons for taking urgency was "the introduction and passing of a Government bill". No mention was made of the name of this mystery Bill, or what it might relate to - simply that something would appear before the House and get passed into law quick-smart.

On Thursday, that "something" was revealed to be the Policing (Storage of Youth Identifying Particulars) Amendment Bill. The what, you say? Well, basically it is a legislative fix-it to cover over a mistake made back when the original Policing Act 2008 got passed. That legislation authorises the Police to take and retain the "identifying particulars" (photos, fingerprints and the like) of certain people arrested and dealt with under the criminal justice system. Unfortunately, the legislative authorisation didn't stretch to keeping on file the identifying particulars of any juvenile offenders dealt with in the Youth Court alone - only those few whose cases are serious enough to get transferred over to the District Court for sentencing.

This was, it appears, a complete oversight. The Police had had the power to retain the identifying details of juvenile offenders dealt with in the Youth Courts prior to 2008, and apparently the intended policy was that that they should continue to have such power after 2008. But the new legislation was written in a way that did not give them that power. And without express legislative authorisation, the keeping of such details on file is unlawful.

Not that anyone in the Police or Parliament noticed this at the time (or the mistake probably would have been fixed there and then). So the Police quite happily kept on keeping the identifying particulars of juvenile offenders under the assumption they could still do what they had been doing previously. And, what is more, where evidence was collected from a crime scene (say, fingerprints from a burglary), those retained identifying particulars were still used to identify and help convict offenders.

At least, this happened up until late 2010, when someone obviously realised that the mistake had been made. Which creates a rather large problem. Because, by that time the Police had been acting in an unlawful manner for over two years - and a good few people would have been convicted as the result of information that was unlawfully held by the Police.

Hence, the quick legislative fix-it this week. It does two things. First, it gives the Police the authority to retain the identifying particulars of juvenile offenders dealt with in the Youth Court - i.e. the power the Police were meant to have back in 2008. Second, it retrospectively applies that legislative authorisation back to the entering into force of the 2008 law. In other words, Parliament now says the Police always could do what they did, even though the law at the time didn't say they could.

This latter point - which I'll come back to - is important, because it takes away any chance for someone convicted using the (at the time) unlawfully held information to appeal their conviction; as well as removing the ability of those whose identifying particulars were unlawfully retained to try and seek compensation. It's also why the Bill was kept so hush-hush right up until its introduction to the House. The fear was that if the mistake became known, cases would be filed before the legislative change could be made. And while this legislative change would kill those cases off - once Parliament says that retaining the information was lawful, then it was lawful, and so there's no basis for a case - it would be a very bad look for Parliament to legislate in a way that defeats an existing litigant's attempt to vindicate her or his rights before the courts. But if people don't know of the mistake, and thus haven't sought to vindicate their rights in court before it is fixed, then that particular constitutional problem is avoided - albeit in a rather sneaky and questionable fashion.

All of which is very neat and tidy. From a pragmatic perspective, there's not all that much to quibble with. The law is being brought into line with what it was always meant to say, while the potential unintended consequences of the original mistake are nullified. Sure, the Police may have been acting in a technically unlawful way for a while (and technically unlawfully held information may have been used to convict some people), but once that technical unlawfulness has been cured then isn't this a case of no harm, no foul?

Probably. But here are some things to think about. First of all, this didn't turn out to be the uncontroversial, purely technical fix-up that it was sold as. Both the Maori Party and the Green Party (along with Chris Carter) voted against the change, on the basis that they disagreed with its substance (at least in part). They may have been late coming to this particular issue, and perhaps there's a measure of grandstanding to their positions, but nevertheless there's still reason to worry about a legislative change getting on to the statute book in a bare few hours when more than 10% of MPs think there is a problem with it. Particularly when, at least in the case of the Green Party, they only got to see the legislation the night before it appeared in the House. How exactly are they meant to function as legislators representing the people of New Zealand under those conditions?

Second, this isn't the first time that Parliament has felt the need to whip through a quick law change to fix a technical stuff up with the Policing Act 2008. Back in 2009, another fix-it Bill was passed in extra quick time to deem the oaths taken by a bunch of newly sworn officers to be have been properly  administered. Again,  swiftly acting to put this problem right can be defended - having the actions of some police officers called into question simply because the wrong person got them to swear an oath is a bit silly. But still - we're now at strike two in respect of the Police's own operating statute.

What is more, in 2009 Parliament also passed in a single day the Parole (Extended Supervision Orders) Amendment Act, designed to close alleged "loopholes" in the legislation allowing the monitoring of some sex-offenders after their release from prison. Sure, there also was claimed to be good reason for this fix as well, but remember that the Attorney-General notified Parliament that, in his opinion, the legislation was inconsistent with the New Zealand Bill of Rights Act 1990. So it's not as if this was a completely uncontroversial, technical alteration.

All of which begins to form a pattern that is a bit less forgivable. Yes, MPs are human, and they rely on officials and draftspeople to advise them on the nuances of the legislation that they are considering. But wouldn't it perhaps be a bit better for parliamentarians to get the law they are making right the first time round, when it gets full debate and public submissions, rather than to urgently patch it up without any real notice or discussion after problems are identified? Or, to put it another way, is a modicum of legislative competence too much to ask for from our MPs?

After all, if an ordinary citizen makes a mistake regarding the law, they have to live with the consequences of that mistake. (That's the point of my fancy latin title to this post - you can't argue you didn't know the law says what it actually says, so therefore it shouldn't apply to you.) So why is it that our lawmakers get to make repeated mistakes when they are writing the law - then scrub those mistakes out of existence by retrospectively changing the law when the consequences of their mistake are unpalatable to them? Isn't there the hint of a double standard at play here: "look - the law is a very complicated thing and you need to understand we're going to make the odd slip up when making it, which we need to go back and fix ... but there's no excuse if you make a slip up when trying to follow the law we make!"

Third, Parliament's retrospective validation of the Police's actions in keeping and using the identifying particulars of juveniles when they shouldn't have creates a pretty weird situation where this is simultaneously both lawful and unlawful. The easiest way to explain this is by considering the following three time periods.

  1. From the entering into force of the Policing Act 2008 to the discovery that the identifying particulars could not be lawfully retained (apparently in October last year), when keeping and using this information was assumed to be lawful (but actually was unlawful).
  2. From the discovery that the identifying particulars could not be lawfully retained to today's passage of the Policing (Storage of Youth Identifying Particulars) Amendment Bill into law, when keeping and using this information was assumed to be unlawful (and actually wasn't lawful).
  3. From the passage of the Policing (Storage of Youth Identifying Particulars) Amendment Bill into law, when keeping and using this information is (and always was) lawful.

During time (1), the identifying particulars were held and used by the Police - and no doubt resulted in some convictions of those identified solely using that information. This use of the information was believed to be lawful, but in fact wasn't and - had that mistake been discovered - the convictions could have been challenged on that basis. But the mistake wasn't widely noticed, and so no challenges were made. Then, at some point during time (2), the Police destroyed the information that they were holding as there was no legal basis for them to possess it. Thus, that information could not then (and cannot in the future) be used as evidence, because it was unlawful for the Police to have it. However, at time (3), that information is said to be (and always was) lawfully held. Thus, any convictions obtained using it during time (1) are legally secure (despite the fact they could have been challenged as unlawfully obtained at the time). And the destruction of the information at time (2) did not actually have to happen, because Parliament now says it actually was lawful for it to be retained at that point in time.

Consequently, the relevant information exists in something of a legal quantum state, as potentially both lawfully and unlawfully retained. Furthermore, the result of this duality means the information has different meaning depending on when a person commits a crime. If the information was used to catch and help convict a person during time (1), then that use is lawful (even though it was not lawful then). However, the information cannot be used from time (2) onwards as the Police no longer have it, because it was unlawful for them to retain it (even though it is now said that they could lawfully do so). Consequently, the same information as could convict someone at time (1) cannot convict anyone after time (2), even though the legal status of that information is now said to have been the same at both times.

If your head is hurting after all that, then welcome to wild and crazy world of the law, where just about anything goes. All of which puts me in mind of a text I've had occasion to quote from before:

'Who are you?' said the Caterpillar.

This was not an encouraging opening for a conversation. Alice replied, rather shyly, 'I - I hardly know, sir, just at present - at least I know who I was when I got up this morning, but I think I must have been changed several times since then.'

'What do you mean by that?' said the Caterpillar sternly. 'Explain yourself!'

'I can't explain myself, I'm afraid, sir' said Alice, 'because I'm not myself, you see.'

'I don't see,' said the Caterpillar.

'I'm afraid I can't put it more clearly,' Alice replied very politely, 'for I can't understand it myself to begin with; and being so many different sizes in a day is very confusing.'

'It isn't,' said the Caterpillar.

'Well, perhaps you haven't found it so yet,' said Alice; 'but when you have to turn into a chrysalis - you will some day, you know - and then after that into a butterfly, I should think you'll feel it a little queer, won't you?'

Not a bit,' said the Caterpillar.

'Well, perhaps your feelings may be different,' said Alice; 'all I know is, it would feel very queer to me.'

'You!' said the Caterpillar contemptuously. 'Who are you?'