Hansard and Journals
Criminal Proceeds (Recovery) Bill — First Reading
Criminal Proceeds (Recovery) Bill
Hon MARK BURTON (Minister of Justice) : I move, That the Criminal Proceeds (Recovery) Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Law and Order Committee. The Criminal Proceeds (Recovery) Bill, which is before the House, provides for a new forfeiture regime for the proceeds of crime. It replaces the Proceeds of Crime Act 1991. Both that Act and the new bill are based on the principle that crime must not be allowed to pay. The bill before the House will achieve this in a fundamentally different and I believe more effective way than its predecessor. The Proceeds of Crime Act allows the Crown to confiscate the profit made from crime, after a person is convicted of that crime. That approach is all very well if the criminal is the only person who profits and if the crime is readily provable, but in this day and age, increasingly, that is quite often not the case. Organised criminal gangs—particularly those involved in large-scale drug dealing—will not be caught for every crime they commit. They will also spread the profits from crime around their membership. We see a lot of evidence of that. In the end, the person selling the $20 tinnies every day is usually not the same person who, as with their gang mates, lives a lavish lifestyle off the proceeds of such criminal activity.
The Criminal Proceeds (Recovery) Bill deals with this issue. It gives the Crown the power to confiscate profits and assets obtained through criminal activity on the civil standard of proof. That is to say that if the Crown can prove on the balance of probability that a person has benefited from significant criminal activity, that person’s property will be liable to forfeiture. Unlike the current regime, no criminal conviction will be required before forfeiture can occur.
The bill establishes two orders to deal with this property. One is the profit forfeiture order, which is directed at the unlawfully derived income of a person. The other is the assets forfeiture order, which targets property that has been acquired or directly or indirectly derived from criminal activity, regardless of who the owner is. This approach will allow us to target gang leaders who do not get their own hands dirty but in the end enjoy the benefits of their fellow gang members’ illegal activity. It will also help New Zealand to meet its international obligations regarding laundered money, international crime, and terrorist funds. The bill will enable New Zealand to cooperate with other nations to confiscate the proceeds of overseas crime if they ever end up in this country. This will be made possible through expanding the Mutual Assistance in Criminal Matters Act 1992 to expressly enable the enforcement of foreign civil forfeiture orders.
The bill also targets property used to commit a crime, such as a farm used to grow marijuana. In the bill this sort of property is termed “an instrument of crime”. As with the current regime, it will be liable to forfeiture, only after a criminal conviction. The court case that leads to that conviction will usually also prove whether particular property was in fact used to facilitate the offence. If the crime is of sufficient seriousness, which the bill defines as an offence carrying a maximum penalty of at least 5 years, the prosecutor can then apply for the forfeiture of the property to the Crown.
Requiring a conviction before an instrument of crime is in whole or part forfeited acknowledges the fact that instruments of crime—unlike profits of crime—may have been obtained quite legitimately. The instruments we refer to—whether a farm growing marijuana or a basement of a house being used for meth lab activity—may in fact have been passed down from generation to generation, from one honest Kiwi to the next, only to come in the way of one wayward son or daughter who abuses his or her legacy.
The bill takes a new approach to instrument forfeiture in one important aspect. It recognises that confiscating a person’s lawfully gained property is itself a sanction, in a similar way to a reparation order or fine. In the same way as those sanctions are taken into account in determining the total sentence imposed on an offender, instrument forfeiture should also be taken into account in the sentencing process. This will not stop the courts from imposing appropriate sentences on culpable criminals, but it will make sure that the penalties for committing crime are consistent and proportionate. I suggest that this is not the case under the current law, where the forfeiture is completely separate from the sentencing process.
As with the current regime, in all cases the Crown can gain control over property before a forfeiture order is made, to ensure that property stays in one piece. This occurs through what is called a restraining order. A restraining order can be granted over property if there are reasonable grounds to believe that it is an instrument of crime, an asset derived from crime, or that the person who owns the property has unlawfully benefited from significant criminal activity.
Effective operation of the regime is dependent on the right enforcement agencies being chosen to take charge of forfeiture. The bill establishes the Serious Fraud Office as the home of a recovery body to be responsible for the civil forfeiture regime. The New Zealand Police will continue to be responsible for the confiscation of instruments of crime, because of the criminal aspect of such orders. The official assignee will continue to be responsible for the maintenance of restrained property and the dispersal of forfeited property.
These agencies need powers to help them carry out their roles. The bill contains a broad suite of powers to enable enforcement agencies to search for, to seize, and to restrain the proceeds of crime. The bill gives the Crown significant new powers, but it also provides protections for those targeted by the various orders. For example, when a property is restrained, the courts can allow reasonable living and business costs to be met out of restrained property. The courts can also ask that the recovery body undertake to pay any damages or costs associated with the making of a restraining order. More significantly, protections are available for those facing the forfeiture of property. Often, third parties will have a legitimate interest in property targeted by this regime. These third parties can apply to have their interest in property excluded from any order, and I think, again, members would generally see that as a sensible and reasonable protection. The exclusion provisions are primarily intended to protect people and institutions in business relationships with property owners such as banks. They may also protect the spouse, children, and dependants of criminals who might otherwise become innocent victims of forfeiture orders.
In all cases of forfeiture, the courts can look at the hardship that might be caused to people whose property is at risk, and make orders accordingly. This applies to the person who is targeted by the order, as well as the third parties. These orders might exclude property from forfeiture, or provide that a payment be made from forfeited property to the applicant. Again, spouses, children, and other dependants are likely to benefit from such orders.
Overall, I believe that this bill finds an appropriate balance between targeting the proceeds of crime and toughening up on that, as we should, while protecting personal and property rights. Accordingly, I commend the Criminal Proceeds (Recovery) Bill to the House.
SIMON POWER (National—Rangitikei) : It is with pleasure that I rise to agree with Mark Burton on something today, and I can say that the National Party will be supporting the Criminal Proceeds (Recovery) Bill through its first reading. I take this opportunity to make a few preliminary remarks about the background to the bill and the scope of the bill itself. At the 2005 general election it was National’s election policy to amend the Proceeds of Crime Act in order to target the economic base of organised crime. Members on this side of the House believe that the bill currently before Parliament warrants the support of the main Opposition party, in order that further discussions can be held at the Law and Order Committee.
It has to be said, though, that with the best will in the world the Government has taken its time to bring this legislation to the House, after it introduced the Criminal Proceeds and Instruments Bill back in June 2005—something that the Minister did not spend a lot of time dwelling on during the course of his introductory remarks. That bill was intended to introduce a civil forfeiture regime that would force criminals to prove that all their property was not the proceeds of crime once the court had decided it probably was. In fact, the then Minister of Justice, the Hon Phil Goff, said at the time that the retrospective legislation would have “an immediate impact” and would recover an estimated $14 million a year. Of course, the problem with that statement of Phil Goff, and with the subsequent lack of explanation from the Minister in his speech, was that the Government mysteriously withdrew that bill in the following month after that statement was made, before it could even be debated. So members, in hearing the Government claim this afternoon that it is getting tough on those who are secondary parties to the proceeds of crime, should not forget the history of the procedural muck-up that the Government is presently mopping up with the first reading of this bill today.
One thing I do agree with the Minister on, in respect of the process around this bill, is that we need to hit the gangs, in particular, in the pocket if we are to have any impact on their activities, and especially to hit those presently making supposedly millions of dollars from the manufacture and peddling of methamphetamine or the drug P. Of particular concern, though, linked into that, is the fact that in recent weeks we have seen a huge number of P cases presently clog up the High Court. The High Court, of course, in many instances has been unable to get to those cases. I suggest to the Minister that one of the things National will be interested in when this bill goes to the select committee—and I am pleased it is to go to the Law and Order Committee, which I sit on—is to ascertain how this legislation will work within the courts’ capabilities, in order to deliver not only timely justice but also the slightly more complicated regime that is currently being proposed. I will also be interested to see how the practicalities around establishing a separate mini-bureaucracy for the enforcement of recovery will work, and I see the Minister is acknowledging that that is probably a novel point in the legislation. I wait with interest to hear from the officials on that point.
I have to say too the value of assets that the Government is confiscating under the Proceeds of Crime Act is presently dropping, despite the number of cases increasing. Despite the number of cases doubling to 41 since 2002-03, the total value seized is one-third of what it was—a drop from just under $4 million to $1 million—and the average value of each seizure has dropped from about $183,000 to $24,000. So this legislation, in that sense, is timely.
I will also be very interested to receive advice around the comment the Minister made that this legislation will help us to meet our national obligations in respect of the laundering of money. I will be interested to hear advice from the officials on that point. I did not place a lot of emphasis on that when I first read through the draft bill late last week, but I look forward to receiving advice in that area. That leads to the point set out in the general policy statement that what this bill does do—and we hope it does this—is, finally, to put us in line with countries like Australia, Ireland, and the UK, which, as I understand it, operate similar regimes to the one currently proposed. [Interruption] I say to Judith Tizard that that was a very helpful contribution!
As I said, it will be interesting to take the opportunity at the select committee stage to have the officials run through how the procedure will actually work, from start to finish. Although the bill is filled with good intentions, of course, often the problems associated with our court system and the recovery of the proceeds of crime are far more technical and difficult than any legislation will at first, perhaps, predict. I think the Minister, in fairness, would acknowledge that these problems are not straightforward. So I will be interested to see whether the—to be fair—laudable policy statement can be translated into workable mechanisms to ensure the recovery of the proceeds of crime.
Members should make no mistake about this legislation; even from National’s point of view, some of the steps proposed in this bill are large ones. We are talking about shifting, in a couple of cases, the burden of proof quite substantially. That is not without merit, in my view, but it is a big step. I think that members of the Law and Order Committee will be interested to question officials, and those who make submissions on the bill, as to how that would lie against any international obligations we have in respect of civil liberties, or the like. It is a discussion worth having, and the only reason I say that is that if we are to take the confiscation or recovery of the proceeds of crime seriously, we must balance the loss of rights of some people against the requirement of the majority of New Zealanders to make sure that gangs and the like cannot profit from crime second or third-hand. It is a delicate balance. National said at the last election that it would tackle this issue if elected. National members are convinced that this legislation, at the very least, starts the debate in a constructive way. We are prepared to support the referral of the bill to the select committee at its first reading.
I note there is no regulatory impact statement in the bill, and I would be interested to know whether that is because it does not need one or because one was not asked for. Perhaps the Minister would like to talk to me privately, prior to the vote, about exactly what the background is to that issue. I think one of the things National will have to be convinced about is the separate bureaucracy that is to deal with the issue of recovery—the separate director of the recovery body, who will have the power to act independently in relation to decisions to investigate. I would hate that body to cut across the work that the Sentencing Council, for example, might be doing, or something similar to that to occur. We would hate to have yet another body in the justice system that served to create another barrier between those seeking justice and those delivering justice on behalf of the legislature.
On that basis, and with those few preliminary remarks, I say National will support this bill at its first reading. I have highlighted some areas where National does have concerns about the bill. We believe the bill is a step in the direction that National promoted at the last election, which was to target the economic base of organised crime, and we will be interested to see how thoroughly it is able to do that. We will also be interested to see that the mechanics involved in that particular process work, not to the advantage of those who profit from crime but, quite to the contrary of that, to ensure that those who profit from crime find themselves dealt with more harshly than this Government has been able to do for the last 8 years.
JILL PETTIS (Labour) : I am pleased to take a call on the Criminal Proceeds (Recovery) Bill at its first reading. One of the principles we need to pay attention to, as the Law and Order Committee members process and progress this bill through its stages, is the principle that the bill is largely based on; that is, that crime must not pay. I think that is a statement and a belief held by most civilised people. Labour strongly believes that this legislation upholds the principle that crime must not pay.
Currently, the Proceeds of Crime Act 1991 allows the Crown to confiscate the profit made from crime, after someone is convicted of that crime. But the profits of crime, as we well know, can be spread among many people—not all of whom are able to be convicted of the crime. Gangs, unfortunately, often fall into that category, when the leaders are clever enough to distance themselves sufficiently from the criminal activities of the people whom they are associated with. So the “Sherpas”, so to speak, do time, but the leaders remain immune from any conviction. So this bill will be effective, in that it deals with this problem. It gives the Crown the power to confiscate, on the civil standard of proof, profits and assets obtained through criminal activity. The bill, as I said, will help us to tackle those leaders of illegal organisations who do not get their hands dirty.
One other aspect of the bill I am pleased to see included is that there are, significantly, protections available for those who are facing forfeiture of property as a consequence of crime, because, although some people may not choose their associates, partners, and spouses very carefully, families, or organisations, such as banks, can sometimes be innocent victims or innocent third parties. So there will be some protection for the spouse, children, and dependants of people who are engaged in criminal activity.
This bill is timely, and I look forward to the committee receiving submissions on the bill. I think there will be considerable public interest in the debate. The bill is about seeing that people do not profit from illegal activities. I look forward to the progress of this bill as it goes through the select committee and returns to the House. Thank you, Mr Speaker.
KATE WILKINSON (National) : In speaking in support of the first reading of the Criminal Proceeds (Recovery) Bill, it is useful to repeat the object of the bill, which is a worthy one, set out in the explanatory note. It is “to make more effective provision for the confiscation of property that either represents the profits of criminal offending or was used to facilitate the commission of crime.” It has been said that the bill is intended to repeal the Proceeds of Crime Act 1991, but I have to say its passage so far has not exactly been speedy. Unlike the previous speaker, Jill Pettis, I do not believe it has been timely; in fact, it is somewhat overdue. But having said that, the bill is now before the House, so let us make sure it proceeds with due expedition.
Mr Power, my learned colleague, has stated that nearly 2 years ago the Criminal Proceeds and Instruments Bill was introduced to Parliament. According to the then Minister of Justice, Phil Goff, millions of dollars a year were to be confiscated from gangs and organised crime. At that stage it was estimated that up to $14 million per year would be recovered under that new legislation—which would now have been old—with about 70 confiscations per year. It is disturbing that 2 years later there have been approximately $28 million of lost proceeds and 140 lost opportunities to confiscate property, and we now have the newly named bill, the Criminal Proceeds (Recovery) Bill. We have asked why this bill has taken so long to even get to the House, and why the previous bill mysteriously disappeared from the Order Paper 2 years ago.
Under the currently existing Proceeds of Crime Act 1991, the owner of property has to actually be convicted of a criminal offence before property can be confiscated. This bill departs from that and introduces a non-conviction - based regime to deal with property other than items actually used to commit or facilitate the commission of criminal activity. A court can order the confiscation of such property if it has reasonable grounds—and that means it is satisfied on the civil test of the balance of probabilities, not the criminal test of it being beyond reasonable doubt—to believe that the person derived some benefit from criminal activity. In practice, this may—and, hopefully, will—capture, for example, gang bosses who are at arm’s length from any actual offending but who, on the balance of probabilities, did actually benefit from such offending.
We must ask, however, as a matter of principle, whether it is acceptable to give the State significant powers of confiscation when it does not have sufficient evidence to prosecute those gang leaders in the criminal courts—in other words, to rely on the lesser civil test of the balance of probabilities, rather than on the criminal test of it being beyond reasonable doubt. This legislation should not be regarded as giving the courts the easier path and the less strenuous test of proof. Other jurisdictions internationally—and it is often sensible to align ourselves with some of them—such as those in the United Kingdom, Ireland, and Australia, have introduced similar legislation to this, enabling criminal proceeds to be targeted without a conviction necessarily being obtained. However, I believe that we need to proceed cautiously. We need to be satisfied that the lesser standard of proof is used properly and not lazily, and that safeguards are in place to prevent a misuse of that power in a fishing expedition in circumstances where, for example, there is not sufficient evidence even to arrest the defendant for the commission of a criminal offence. We need to be satisfied that there is a reasonable suspicion that a criminal offence has been committed in relation to the property in question and that the burden of proof is being applied properly to ensure justice and to avoid injustice.
The other caution at this stage that I put on record relates to the department or organisation that is to be designated by the Attorney-General as the recovery body. The Minister has suggested that it will be the Serious Fraud Office. However, it may be the police. I again caution that if it is to be the Serious Fraud Office, that office has a dubious record in relation to cases such as the Westpac helicopter case, Digitech, and others. It certainly has a perceived poor prosecution rate. Despite the Serious Fraud Office having more powers than the police, it seems to have significant orders for costs awarded against it for failed prosecutions. It draws criticisms from many, including one judge troubled by its decision to pursue a case independently of the Inland Revenue Department. The judge himself said that he did not think that that prosecution was “reasonably and properly pursued”. With such a track record, it is crucial that the select committee scrutinise and consider very carefully whether the Serious Fraud Office is or will be the appropriate body to oversee this Act.
That was my very brief call in support of this bill. I look forward to being part of the select committee that scrutinises in more detail the terms of the bill and the issues raised by it. National supports this bill being submitted to the careful scrutiny of the select committee.
RON MARK (NZ First) : I rise to take a call on behalf of New Zealand First and to indicate that we will be, naturally, supporting the passage of this bill. It is the type of legislation that is core to New Zealand First beliefs, and always has been. Before we all get too comforted and lulled into a false belief, that has not been the position of either of the parties whose members have just spoken—historically speaking, that is. It is interesting to note from the outset that this bill will repeal the Proceeds of Crime Act 1991—an Act passed supposedly for the purposes of providing for confiscation of property gained as a result of criminal activities, an Act passed under a National Government, and an Act that National is now saying should have been repealed long ago. National is criticising the Government for being tardy in its progress of improving National Government legislation. It might sound somewhat churlish, but had some people done the job they were paid to do—and paid exorbitantly well, at that—for 9 long years, we would not be debating this bill right now, as the legislation would be perfect. Of course, we all know that perfection is what Simon Power and the National Party all strive to achieve, albeit they always seem to find it impossible to achieve when they are in Government, but easy to talk about and lambaste other people about when they are in Opposition. How strange is that?
A lot of things would probably be best left unsaid by National’s law and order spokespeople, as National’s track record and history are pathetic, at best, on matters such as this. I recall that when these issues were being discussed back in the 1990s they were championed by the Rt Hon Mike Moore and a pretty heavy Labour Opposition in terms of law and order—Phil Goff and George Hawkins. In fact, it was discussed during the submissions heard by a select committee when it conducted an investigation into organised crime in New Zealand. One of the strong submissions consistently put to that committee was that crime should not pay, nor should it be seen to pay, and that criminals who had gained assets—gained net worth—as a result of their criminal activities should have those assets confiscated. That discussion was happening in 1990. I think it was happening in the 1980s. It was happening in 1993, 1994, and we were still having discussions about it in 1997, because clearly at that stage the Act that had been passed by National in 1991 was not effective. It was proving itself to be ineffective.
New Zealand First was able to do a number of things in its short tenure in coalition Government with National, such as putting another 500 police on the beat to replace the 400-odd taken away by the National Minister who introduced a computer called INCIS to do the same work; such as strengthening the law on disassociation and consorting, and intimidating witnesses. New Zealand First fought hard for legislation like that in the National - New Zealand First coalition and it put it into effect and enacted it. But this area still remained.
Meanwhile, we have seen a number of things internationally since that time. If we look across to Australia, New South Wales has passed legislation, as has Western Australia. In fact, in 2003 the New Zealand Law and Order Committee went across and visited a number of states and looked at law and order issues. One of the organisations we visited was the Australian Crime Commission. In the discussions that the Law and Order Committee had with the commission we learnt of the steps Australia was taking to ensure that the principle that crime should not pay was being dealt with.
In Ireland there was the infamous assassination of Veronica Guerin. Veronica Guerin, who was actually an accountant by profession but became a journalist working for the Sunday Business Post and the , set about exposing underworld people in Ireland and the massive amounts of money and assets they had accrued. She exposed them deliberately, specifically, and very accurately to the media, which resulted in, firstly, a couple of attempts on her life; then, finally, she was shot dead in her car on 26 June 1996. That assassination so outraged Ireland, the politicians, and the police that there was a massive crackdown on organised crime. I think there were something like 150 arrests, and legislation was moved swiftly through the Irish Parliament to deal with this very issue.
I look at where we are at today, and we have to say that it is about time and it is a good thing. New Zealand First understands the expressions of concern from the National Party and from the Minister himself in respect of protecting people’s property rights, particularly if they did not know that their loved one—who happened to have “Mongrel Mob” tattooed all over his face, drove a big V8, and went to the pad often—was actually involved in criminal activities and thereby they should not be disadvantaged. We understand the concerns that have been expressed there, but let me just say that many of us have whanaunga and extended whanaunga who are involved on one side of the law or another. Some of them are wearing a uniform and others of them are wearing patches. It is very difficult in the criminal underworld to pretend that one does not know where one’s bread is coming from.
We also signal that in this legislation we expect to deal with those people who take their ill-gotten gains and funnel them across into their legitimate businesses. We in New Zealand First would hate to think that just because the money is now residing in the company shares of a legitimate business—that is, a legal business that goes about earning money legally and does not indulge in methamphetamine trafficking or anything of the sort—it should remain untouchable.
We in New Zealand First, when we consider this bill further through the select committee deliberation, will keep foremost in our minds a couple of simple facts—firstly, that organised crime in this country accounts for a methamphetamine industry that has been conservatively estimated as being worth $400 million a year. Methamphetamine is responsible for some of the most horrendous murders, bashings, and rapes that this country has ever witnessed. Police officers regularly every weekend are confronted by people who are totally out of their minds and who possess superhuman strength, because they are under the influence of methamphetamines and amphetamines. People who peddle—who manufacture, distribute, and give away free samples with the aim of creating a firm market base—do so knowing that the drug they peddle is insidious, is lethal, and is going to have only one result. From that, it will generate much more misery amongst the wider families of the individuals who are the users. It causes people to steal, to burgle, and to do anything they have to do in order to raise the money to feed their habit.
People who deal in that industry know well what they are doing. New Zealand First has no sympathies for what will happen to those people under a tight legislative regime that enables the State to remove all of their assets from them. We may, too, be concerned about the well-being of any dependants, but at the end of the day that is what our welfare State is for; it is there to pick up people who through no fault of their own find themselves in need of State assistance—be it family support or a benefit of whatever sort. In our view, it does not justify the need for going soft or light on criminals and the assets they have accrued. We look forward to the bill’s passage for the further debate of this bill, for seeing people, for hearing submissions, and for working our way through to a workable and meaningful result.
NANDOR TANCZOS (Green) : And now for something completely different! As Simon Power said, this bill has been a long time coming. But unlike him, and, it seems, most other members of the House, I do not celebrate its introduction. I had hopes that the Government, once Minister Goff had been moved aside, would have finally come to its senses on this Draconian and outrageous legislation. But, no—it is the same shameful sham laid on the Table today as had been discussed in Government policy—
Darren Hughes: You’ve worked out we’re all as bad as Phil.
NANDOR TANCZOS: You look like a lawyer! According to the general policy statement of the explanatory note, “This Bill seeks to make more effective provision for the confiscation of property that either represents the profits of criminal offending or was used to facilitate the commission of crime.” The statement notes that “The existing Proceeds of Crime Act 1991 provides for confiscation …” but that “The total amount confiscated under that Act has been relatively small.” It makes the point that “Other jurisdictions … have introduced legislation that enables criminal proceeds to be targeted without a conviction necessarily being obtained. These regimes are proving considerably more effective than previous laws in terms of the value of criminal proceeds confiscated.”
That is interesting. It reminds me of the conversation I had at the Home Office in Britain, when discussing its criminal proceeds legislation on which this is so clearly based. Officials were boasting to me about how successful their regime was—it was wonderful; they had collected all this money! So I asked them what evidence they had that the legislation had impacted upon offending, at all. “Oh,” they said, “we haven’t looked at that.” But they said it was successful as a piece of legislation because they had got millions and millions of pounds. If that is how we in this House judge the success of criminal justice legislation, then I think we really are barking up the wrong tree.
What does this bill do? It repeals the Proceeds of Crime Act and replaces it with a “conviction-based forfeiture regime limited to instruments of crime … and a non-conviction-based confiscation regime to deal with all other property representing the proceeds of crime or assessed to be the value of a person’s unlawfully derived income. The non-conviction-based regime … will operate completely independently of any criminal proceedings …”, says the general policy statement. “Consequently, the same person may be the subject of criminal prosecution (including potential forfeiture of instruments of crime) and confiscation action under the civil process.” Well, that sounds a bit like double jeopardy to me. A person is being stung twice for the same offence under totally different regimes.
But even worse than that is the fact that that person does not necessarily have to be the subject of both regimes, because he or she does not even have to be prosecuted. A person does not even have to be charged with a criminal offence for this stuff to apply. If people are charged and acquitted—that is, there is no conviction—it still applies. People can be acquitted of a crime, and this stuff will still apply to them—they will have proceeds confiscated from them. Even worse, they can be convicted and have their convictions quashed on appeal, and this provision will still apply.
I remind members of the House that on appeal one is not starting de novo—to overturn a conviction on appeal there is a very high threshold to pass. But even if someone manages to have his or her conviction quashed on appeal, this forfeiture regime will still apply.
What does it do? OK, in a general sense, the explanatory note says that “Civil action will be able to target property that has been acquired as a result of unlawful activity, even though it may not be possible to prove beyond reasonable doubt that the owner has committed a specific criminal offence.” It enables two types of confiscation orders: “one for the forfeiture of property to a specified value that represents the profits of significant criminal activity; the other for forfeiture of a specific asset or assets derived directly or indirectly from … criminal activity. There is also provision for a restraining order to be made to preserve property while the Crown is gathering evidence …”.
I would like to touch on these things in a little bit more detail—first of all, on this restraining order. The basis for making a restraining order is that the authorities have reasonable grounds to believe that the specific property is tainted property, and they will freeze it, or that the person against whom the order is made has unlawfully benefited from significant criminal activity, which raises the question in my mind of whether we will target casinos. I think their proceeds are probably “lawful” proceeds of crime. Casinos are well-known to have the No. 1 money-laundering operation in this country. I received some information from the Problem Gambling Foundation, which claimed that about 45 percent of pathological gamblers had committed crimes solely for the purpose of financing their gambling. Of those, 28.3 percent had been convicted of a crime at least once, and 44.4 percent of youth with pathological gambling problems had admitted borrowing or stealing money to cover gambling debts.
The most common offences were obtaining finance or credit by deception and cheque fraud, and the most common ways of disposing of proceeds were gambling and using proceeds for living expenses. The mean amount of actual loss was $218,000. So will we be seizing the assets of casinos? Well, I suspect not. Again, it reminds me of my discussions at the Home Office. What they were doing there was quite deliberately targeting people on housing estates, because they told me that it was important to send a symbolic message to criminals that crime does not pay—but to only the low-level ones. They were not going to touch the big fellows in their big country estates driving Jaguars. No, no—they would not touch them, because it was not important socially to send a message that big crime did not pay. What we are doing with this bill is sending a signal that middling crime does not pay; if people want to have their crime pay, then they have to be one of the big boys.
“In the case of a restraining order relating to an instrument of crime … the respondent must have been charged with a qualifying forfeiture offence … with which the instrument of crime is associated, or there must be reasonable grounds to believe that the person is about to be charged …”. Well, OK! “A court may make a restraining order subject to any conditions the court thinks fit … The court may allow … the following to be met out of the respondent’s restrained property … : reasonable living costs … : reasonable business expense … : the payment of any specified debt … ” and “any other expenses allowed by the court.”—but members should get this: “… the court may not allow legal expenses to be paid out of the restrained property …”.
So if my assets have just been frozen—they are being restrained, and I cannot do anything with them, I cannot dispose of them—I am supposed to fund a major criminal defence. It is not even a criminal defence, I am supposed to fund a defence to this piece of trash. How am I supposed to do that if all of my assets have been frozen? The bill specifically states that the court must not allow legal expenses to be taken out. It is absolutely outrageous and I defy anyone in the Government to explain to me how that will allow for any kind of fair trial. I have not heard anyone talk about that yet. All we have heard is how wonderful it is that we are targeting criminals. We have not heard any argument about how the serious New Zealand Bill of Rights Act breaches will be rectified in this bill. Damn, I am running out of time and I am just getting started!
The bill refers to assets forfeiture orders confiscating specific property—that is, tainted property. Tainted property is defined as “… any property that has, wholly, or in part, been— (i) acquired as a result of significant criminal activity;”. “Significant criminal activity” is one where there is a maximum term of imprisonment of 5 years or there is a purported value of property, proceeds, or benefits of over $30,000. A maximum term of imprisonment of 5 years is given for crimes such as possessing forged bank notes, and a feigned marriage—that is a good one. A feigned marriage carries a maximum of 7 years. If, as a result of that feigned marriage, I paid one mortgage payment on my house that I had been buying for the last 30 years, suddenly it has partly been acquired as a result of criminal activity and the whole house is now forfeit on the basis of a feigned marriage. Is that really what we are trying to get here?
The other kind is a profit forfeiture order that deprives the respondent who has benefited from significant criminal activity of interest in a property that represents the value of that benefit and that goes back over a period of 7 years. Now, $30,000 over 7 years is $82.52 per week. If I have been doing something—or have not been doing it but there is a reasonable belief that I have been doing it—that has given me $82.52 a week for the last 7 years, I can have my assets frozen and potentially taken on the basis of that order.
As I said, I am only just getting started and my time is up. There is a whole lot more in this legislation that is absolutely outrageous and I thoroughly recommend to this House to bin this trash right now.
Dr PITA SHARPLES (Co-Leader—Māori Party) :Tēnā koe, Mr Assistant Speaker. If members want to find out how much a decent instrument of crime goes for these days, all they have to do is to log on to TradeMe. Top-of-the-range items of crime can reach prices of $20,000 or more—that was the price an aluminium baton from the 1981 Springbok Tour reached. That baton was used to beat up anti-apartheid protesters and was sold by former National MP Ross Meurant. In May 2005 a private collector in South Africa bought that baton for at least $20,000. Still in the rugby field, the bikini of the infamous Lisa Lewis, who streaked in the midst of the All Blacks game against Ireland held at Waikato Stadium last year, reached only a piffling $4,010. It appears that would-be buyers objected to the sale, considering that because Lisa had been found guilty of disorderly conduct, the auction of her bikini therefore constituted profiting from a crime.
The objections became even more passionate when Ben Nathan attempted to sell on eBay the bloodstained shirt he was wearing in 1997 when he bashed the America’s Cup with a sledgehammer. Indeed so virulent was the hate mail that that auction attracted the item was subsequently withdrawn, with eBay saying it would not sell bloodied items. Finally in my catalogue of confiscated property, earlier this year we saw TradeMe withdraw the auction of the One Tree Hill Husqvarna chainsaw from its antiques and collectables section, supposedly in response to public opposition. Up until the website closed the sale, the highest bid was $15,000, with the auction being viewed more than 15,000 times. That was the chainsaw used by Mike Smith in 1994 to chop down the pine tree on One Tree Hill, Maungakiekie, believing it to be a symbol of colonial oppression.
What can we make of all that? That the crime of interrupting an international game of rugby does not score highly on the list of desirable assets. Even more ironically, the police baton used to bash citizens—described in the auction as “wielded in a blaze of blood”—is valued as a collector’s item, although the instrument used to challenge the criminal impact of colonisation was withdrawn from sale, as was the “bloodied shirt” of Ben Nathan. Presumably both of those items were interpreted to be weapons of offence, but not Ross Meurant’s baton. The bloodied weapon used against people who were protesting about the inhumanities of apartheid in South Africa had a greater value than the tool used to draw the nation’s attention to the inhumanities of colonisation in Aotearoa. One was worth at least $20,000, while the other was withdrawn from sale. Another bloodied article—Ben Nathan’s shirt—was withdrawn from sale because it was bloodied, yet the similarly bloodied baton was not withdrawn. Those are all examples of the double standards that are the prime objection to the Criminal Proceeds (Recovery) Bill.
The point in raising those four different objects is simply to throw up the problems that come with regard to the interpretation of what is an instrument of crime and what is not. Meurant, the House may recall, was the second in charge of the infamous Red Squad at the time of the 1981 Springbok Tour. That tour was the first time New Zealand police had been issued with visored riot helmets and the long baton—tools that were able to be used against anti-apartheid protesters in a way that led to the police being frequently accused of exerting an excessive degree of force. Meurant, ironically, purchased his own special baton from South Africa. Yet here we are, a quarter of a century later, with a key instrument of that violence enabling the offender to benefit from the profits of a website sale.
So what would this bill do differently, in its repeal of the Proceeds of Crime Act 1991? For a start, it would probably not have led to the confiscation of the bikini, the baton, the sledgehammer, or the chainsaw—or would it? The concept is that property that either represents the profits of criminal offending or was used to facilitate the commission of crime will be confiscated. One would be hard pushed to describe streaking on the rugby field or brawling in a pub as significant criminal activity, although again, that is where the question of interpretation enters into it. The questions of interpretation and judgment calls are rife in this new legislation. The bill introduces a new non-conviction - based regime that will operate independently of any criminal proceedings. That new regime causes us some concern. The bill proposes that a recovery body will be established, the director of which will have the power to act independently in order to search for and seize evidence, and the power to apply for confiscation orders, with confiscation being able to occur not upon conviction for criminal offending but merely on the suspicion of such offending having occurred.
We have to admit to being apprehensive about such powers, in the light of advice from members of the Dunedin Community Law Centre. They have raised concern that there are not enough adequate protections for the innocent in the bill or, for that matter, enough instruction and direction given to the police to give confidence that such powers will be operated fairly and without prejudice. As background, they referred to the considerable body of knowledge that the police have already admitted that they have used, and do use, discriminatory practices that impact more harshly on Māori than on other people.
Whenever the police have been given a discretionary power, it has not been used as intended. Research carried out less than a decade ago reported that Māori participants were unanimous in their perception that the police are a racist institution that perpetuates strong anti-Māori attitudes. The research Māori by Pānia Te Whaiti and Dr Michael Roguski cited experiences such as the continual stopping and questioning of Māori on the pretext of criminal suspicion, when no crime has been committed; racist verbal abuse by the police, which precedes or accompanies physical abuse and/or arrests; disrespect for tikanga Māori; and the minimalisation by the police of racist attacks on Māori.
There was accompanying research, Police Perceptions of Māori, that confirmed that policing behaviour differentially targets Māori. That supports Moana Jackson’s 1989 hypothesis of target amplification. In other words, Māori may be more likely than Caucasians to be identified and treated as suspects by the police, because of policing strategies. The data also suggests that on average almost one in four police officers have negative attitudes towards Māori and that at least two-thirds of those surveyed reported that they had heard colleagues using racist language about suspects or offenders.
I have taken the time to expand on the cautionary advice we present about police perceptions of Māori. I was a member of the police commissioner’s advisory team and two police district advisory groups when the findings of that research came out. We worked with the commissioner to try to work with the police in terms of their attitude towards Māori, and, vice versa, we worked on projects in the Māori community about the police. This is a hot topic of debate in the public at present, not only in the light of the policing review and the implications for legislation such as the repeal of section 59 of the Crimes Act, but also because it draws out the concerns of the Dunedin Community Law Centre specifically to do with this bill now before the House. This issue is absolutely central to the implementation of a bill that operates by vesting in the hands of the police the power to target people and confiscate property and assets upon suspicion.
In that context, “upon suspicion” has ultimately led us to vote against this bill, for in it the onus of proof is reversed. Now people are automatically deemed to be guilty until they prove themselves to be innocent. We have major questions around such a precedent being established, reversing the usual “innocent until proven guilty” provision. We are not convinced that there are adequate protections in the bill for the innocent, nor indeed that the racist context of policing from time to time, which several reports have identified, has been sufficiently addressed. We are also not confident that other parties, like the owners of gaming machines and casinos, who themselves could be seen to benefit from the proceeds of crime, the recipients of stolen goods, and problem gamblers who are embezzling to feed their habit, should be exempt from the provisions of this legislation. Our predominant concern is about how we can be sure that justice will be seen to be done. We do not believe that this bill is consistent with the principles of human rights and natural justice that many New Zealanders deem to be very important. Thank you, Mr Speaker.
NICKY WAGNER (National) : I rise to support this Criminal Proceeds (Recovery) Bill. I support it because, on face value, the philosophy behind it stands us in good stead. I think most New Zealanders do believe that crime should not pay. However, after listening to Nandor Tanczos and Dr Pita Sharples, I say that we must be very careful to make sure that the protections of people who are innocent are taken into consideration when we deal with this bill.
Any bill that discourages crime or criminal activity, particularly one that manages to get at the people who are behind criminal activity—the bosses, the gang leaders, and the organised crime administrators; those people who are at an arm’s length from crime and who are normally able to benefit from it without taking the risks—is important. It is also good that we are to come into line with other countries that have passed similar legislation that allows the confiscation of the property and profits of non-convicted criminals who have been involved with significant criminal activity over a length of time. It is in line with National’s policy in 2005, which was to amend the Proceeds of Crime Act and to target the economic base of organised crime.
Ordinary New Zealanders have really had enough of crime. They are getting tired of what is going on in our cities. Anyone who lives in the cities is aware of serial burglaries, there are continuous car conversions, and I think there is a real fear of drug and alcohol - fuelled activities on our streets. I recently surveyed the constituency of Christchurch Central, and every single answer that I received listed the level of crime and violence on the street as being something that was important to people and something that bothered them.
Of course it is the money, and the power that goes with that money, that makes crime and the criminal lifestyle so attractive. I am particularly concerned about how young people are affected by seeing people on the streets who have large amounts of money—and large amounts of freedom to do what they want—that they know have come from an involvement in crime. Young people at the moment are particularly enamoured with that rap gangster look. It is not just in New Zealand; it is a trend right across the world. They love the look of the fast, fancy cars, the hot clothes, and the bling-bling accessories. One needs only to look at music videos on television to see that this look is held up as an ideal.
Of course, it is these young people who become the new recruits in organised crime. They are the ones who go out and do the little crime that they get caught for, as Nandor Tanczos said, while the big boys sit at home, with no risk attached to their actions at all. It is the new recruits who go out and do the crime who end up doing the time—they end up in trouble. So if this bill can increase the risk to those who are employing young people to do crimes, sending them out to do their dirty work, then I agree with it.
I think that a large number of people have done very well out of crime in New Zealand. One needs only to look at the crime statistics and to look at the amount of money that is involved, particularly with drug dealing. Gang bosses and puppet masters are sitting there, enjoying watching the misery of large numbers of people in our society. I do not think it is acceptable for them to be able to get away with that.
This bill repeals the Proceeds of Crime Act 1991, which has no teeth in this situation. It can deal only with people who have been convicted, and therefore they tend to be the small fry, and it also tends to collect small amounts of money—rather paltry amounts of money. That may please Nandor Tanczos, but I think it would be good if we could get our hands on a bit more of the larger amount of money that is going through the criminal world.
I believe that this new bill has the ability to make a real difference. The fact that it can confiscate property from those who are involved in significant criminal activity, without the need for a conviction, will cause a shake-up. But we must be sure that we balance it with the protections that are needed to protect people who may innocently be caught up in this situation—although I also take the point made by New Zealand First that it is quite difficult to be involved closely with people who are in the criminal world without knowing what is going on.
But if this bill can do anything to reduce the rewards of crime going to individuals, particularly those big boys who have been immune up until now, if it could reduce the attractiveness of the wealth of crime so that young people do not get involved—so that people may not end up offending—and if it could reduce the resources available to those who get involved with criminal activity, then I believe it should be supported. Therefore, I support this bill going to the select committee, with the proviso that people look very carefully to maintain protections for the people involved.
CHARLES CHAUVEL (Labour) : I rise to speak in support of the first reading of the Criminal Proceeds (Recovery) Bill. It is clear, I think, to most of us that organised and serious crime is a major problem, and it is increasing. Where it is established that the tools available to the State to protect innocent people from serious and violent organised crime, and also to prevent from punishing those who are involved in such crime, are not available, then it is appropriate for this House to consider equipping the State with those tools. Having heard the Minister’s introductory speech, I would be prepared to support the introduction of the legislation. If there is evidence that the tools currently available are not sufficient, then they should be beefed up.
But I do have considerable sympathy with the views expressed by previous speakers about the need for Parliament to take great care when introducing and considering legislation of this nature—particularly legislation that would alter our understanding of hitherto fundamental freedoms, such as the burden of proof and the way in which we deal with property. I refer, in particular, to the presumption that the courts operate under—that Parliament will never be regarded as having deliberately deprived a person of property without a right to compensation, without the clearest possible words being used in the legislation.
These are fundamental aspects of our constitution. It is largely an unwritten constitution, and it is important that when we consider how to deal with scourges like serious and organised crime, we do not simply come up with knee-jerk reactions, throw the baby out with the bathwater—or whatever metaphors we like to use—and encroach unduly on civil liberties in a way that we would come to regret. In the end, in our country, we are without a written constitution and without courts that can strike down legislation. Parliament is the guardian of the rule of law, and we need to take great care when we deal with measures that may tamper with the balance.
I support the introduction of the legislation, but I would urge the select committee—and I imagine this will be referred to the Law and Order Committee—to consider it carefully and to test the evidence in favour of it. It is important to ensure that we, as parliamentarians, are properly satisfied that the current legislation is inadequate. We proudly operate a system in this country where virtually all legislation comes before a select committee, and that is a great system. It is, as far as I am aware, without parallel. Most other countries do not allow all legislation to be the subject of public scrutiny, but we do. We do it because we are genuinely interested in giving people a right to be heard on legislation, because we profess, as a Parliament, to care about the views of our citizens.
One of the things that it is important to urge on colleagues on the committee, when they hear the evidence on this legislation, is to satisfy themselves that there is need. What are the ways in which the Proceeds of Crimes Act 1991 currently does not work? What is the evidence from the police, from prosecutors, and from others involved in law enforcement that the tools available to the State are not currently adequate? I hope the committee will test the people involved in the prosecution of offences, to satisfy themselves whether there really is a need for this legislation. That is very important.
I think it would also be useful if the committee considers calling evidence from the criminal defence bar—people who have had considerable experience in defending those accused of serious crime. The committee ought to satisfy itself that experts on both sides of the fence do share concerns that the current legislation is not working as it was intended. If there are views that would persuade the committee that there is not the compelling need that we have heard for this legislation, then I hope the committee will voice that view, with reasons, and let the House know, accordingly.
The other important point to make about this legislation is that when the matter does go before the committee, I would hope the committee will also test the protections that are said to exist in the bill. As I have said, this bill does make some relatively fundamental alterations to the way in which we have hitherto considered the manner in which justice should be delivered. Our criminal law system, supposedly, is based on the notion that it is far better to see nine guilty people set free than to see one innocent person convicted. But one of the problems with the effective erosion—for example, of the onus of proof in a quasi-criminal matter such as confiscating the property of a supposed serious criminal—is that those notions are, if not reversed, then thrown into some serious level of disarray.
We are told there are sufficient protections in the legislation. As I say, I do hope that the committee will look at that contention very carefully. Clearly, it is an advantage that the High Court is the court of record that is seized with jurisdiction in civil matters under this legislation, rather than one of the inferior courts. It is to be hoped that that is an indication from the Government that only the most senior judges will be considering these cases at trial level. That is clearly appropriate, if this legislation proceeds, but, again, the committee should look at whether that is an adequate protection.
Similarly, the thresholds for the legislation need careful consideration. The forfeiture orders that are provided for under the bill kick in only where there is a crime of sufficient gravity. The threshold test in the bill is an amount at stake of $30,000 and a term of imprisonment of more than 5 years. The committee should consider carefully whether those are appropriate levels of threshold or whether they should be raised, given the other serious alterations to the system that the bill proposes.
The 7-year limitation period, back through which the legislation applies, needs to be considered. It needs to be looked at very carefully to see whether it provides a sufficient level of protection to effectively impose that sort of limitation period, or whether it ought to be a shorter period. It is a longer period, for example, than the ordinary civil standard of 6 years, by way of limitation.
Also, the specificity of seizure orders needs to be carefully considered. Has the legislation confined those and required them to be defined? The applications for these orders need to be very tightly drawn so that property that might inadvertently fall outside them is not caught in any order made by the High Court. Perhaps it might be that a form of order should be provided for, either in rules to be made under the legislation or in a schedule, so that people can be satisfied, if the legislation proceeds, that there will be very tight drawing of any orders to be made under it.
Clearly, it is also important that innocent third parties be protected from any forfeiture or seizure orders that would be made under the legislation, if it is enacted. It would not be an attractive scenario to see the property of innocent people affected or distrained under this legislation. So it will be important that any property that is truly held in common by persons who are not clearly involved in criminal proceedings will be protected.
There are other matters that the select committee must assure itself of. For example, is the Serious Fraud Office the appropriate body to house the recovery body under this legislation, given concerns that have recently been expressed about the Serious Fraud Office’s record in successfully bringing prosecutions? Are the orders made under the Mutual Assistance in Criminal Matters Act likely to be appropriate? So all those matters clearly do need careful consideration, if this legislation is to proceed. Thank you, Mr Assistant Speaker.
Nandor Tanczos: Mr Assistant Speaker—
The ASSISTANT SPEAKER (H V Ross Robertson): The member has already spoken.
NANDOR TANCZOS (Green) : I raise a point of order, Mr Speaker. Perhaps my understanding of the Standing Orders is incorrect, but I had understood that if there were speaking slots going uncalled, then a member could rise and take another call.
The ASSISTANT SPEAKER (H V Ross Robertson): The member is quite correct, but only if the member has not spoken. In this case the member has already addressed the House, and therefore the speaking slot is not available to him.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) : This Criminal Proceeds (Recovery) Bill is the thin edge of the wedge. I hear all this talk as to what people will do about the gangs that are running drugs, etc., and as I look around the Chamber, I see that most of the people doing the talking do not even know what they are talking about. The reality is that in this vague attempt to go after these drug gangs, we are about to breach the principle that people are innocent until found guilty.
I know that as soon as we point out a member of the community and say that, on suspicion, we are taking that guy’s Dodge Ram and Harley Davidson, everyone is going to think: “He done it.”, regardless of whether, later on, he gets off the court case. Everybody in that community will think that he did it—and this Parliament is going along with that. That is criminal and insane, and it is a breach of the principle that all people coming before the law are presumed innocent until proven guilty.
Sure, if at the end of the court case somebody is found guilty, and the Dodge Ram and the Harley Davidson are taken, then them’s the breaks. But it is also a principle that it is the job of the police to prove their case, not just to throw out supposition by hauling in stuff on suspicion so that everybody thinks: “Oh, we will go after this bugger now. Now we will start narking on him.” That is not the police proving their case; that is this House giving anybody the opportunity to take shots at somebody that he or she does not like.
Once we start going down that track, we open ourselves up for all kinds of other crazy laws—like Mr Ron Mark’s “Put Them in Jail When They Are 12 Years Old Bill”. Those sorts of bills are where this is going. In fact, when I heard of Mr Mark’s bill, I thought to myself, why wait until they are 12? Why do we not arrest them when they are going to kōhanga reo, and grab them early? Then, of course, the next reaction is that we should not even wait until they are going to kōhanga; we should arrest the mothers before they even have babies. Oh no, no—we should grab the fathers before they have children. “Where have all the soldiers gone?” That is what this all ends up as.
It goes round and round in circles until we get to a point where, just on the basis of suspicion, I go and grab this member’s flash TV, his flash car, his flash wife, and everything else, saying that he is part of a criminal class because he is part of this Government, which has been ripping off Māori for years and years. So where does this all end? That is the point I am trying to make.
We are opposing this bill because it is a breach of the principle that people before the law are presumed innocent until proven guilty. If we go with this legislation, I would probably still be in jail for all of the charges that I have been up on. I once went up to court on charges that would have put me inside for 96 years. If we can do that just on the basis of suspicion, where does it stop?
This is a ridiculously bad law. It is a law based on fear and ignorance. I say ignorance because nobody in this House—except possibly Dr Sharples and my brother Nandor—has any idea about the real impact of drugs in any community and the effects that they can have, not just on the communities but also on the families of those involved. But when I hear other people talking about it, I suggest that it is the pontificating of the pious. People are going on and on about stuff they have no idea about. Talking about this bill going to a select committee in order to give people an opportunity to speak on it does not change that fact.
I heard Charles Chauvel talking about maintaining protections and all the rest of it, but once we breach that dam, the whole lahar goes. That is exactly what happened on the weekend at Mount Ruapehu, and that is what will happen if we let this bill go on in the way it has been proposed. On behalf of the Māori Party and on behalf of all intelligent New Zealanders, I suggest that this bill be struck down at the earliest possible opportunity. Kia ora tātou.
NANDOR TANCZOS (Green) : I raise a point of order, Mr Speaker. Bearing in mind that I did not think the member had quite entirely finished his speech, I was going to take a point of order to ask the member to yield in order that I might refer a question to him.
The ASSISTANT SPEAKER (H V Ross Robertson): No, the member cannot do that, because the member has already spoken in the debate and is unable to take another call.
NANDOR TANCZOS: Just to clarify your ruling, I ask whether you are saying that a member may not call for another member to yield if that member has already spoken in the debate.
The ASSISTANT SPEAKER (H V Ross Robertson): I am. I refer the member to Speaker’s ruling 54/4 regarding yielding: “It … is confined to a brief comment or question on what the member yielding was speaking on. … [It] is not a means of transferring the call …”. That cannot be done.
NANDOR TANCZOS: I understand that, Mr Assistant Speaker.
Dr PAUL HUTCHISON (National—Port Waikato) : I rise to take a brief call on the Criminal Proceeds (Recovery) Bill. National will support the referral of this bill to the select committee, but not because we disagree with Hone Harawira that the principle of someone being deemed to be not guilty until proven to be guilty should remain as the basis of law in New Zealand. We absolutely agree with the member that that, indeed, is the normal course of events that should be followed.
Hone Harawira: However!
Dr PAUL HUTCHISON: However—the member is quite correct—we do know that the drug problem in New Zealand has become extremely difficult and complex. The extremes that individuals who sell drugs go to are quite extraordinary, so it is reasonable that we take this bill to the select committee in order to further explore mechanisms as to how those who sell illegal drugs in New Zealand may be defeated.
There is no doubt that there has been an explosion of illicit drug-dealing in this country, very much to the detriment of a large number of people. In Pukekohe, in the electorate of Port Waikato, which I am very proud to represent, there was recently a march against P—
Darren Hughes: Bring back Bill Birch!
Dr PAUL HUTCHISON: He is coming back in the next week or so to tell the Labour Government a thing or two about the error of its ways, I assure the member. But in the meantime, Port Waikato has an excellent member. The march against P, which originated in Pukekohe, then spread throughout the country. It came down to Parliament. It was led again this year in Pukekohe, and Pita Sharples was there, showing the way and demonstrating once again the huge concern we have at the grassroots level for the destruction of families that is being caused by drugs in this country. Because of that, I think it is appropriate that we explore every possible measure that we can in order to see whether the drug rings cannot, in one way or another, be defeated.
I do note from the general policy statement that a variety of jurisdictions in Australia, Ireland, and the United Kingdom have introduced legislation that enables criminal proceeds to be targeted without a conviction necessarily being obtained. I am aware that in Western Australia such legislation has been operating for some time, and I understand that it has sent a clear message to those who deal illicitly in drugs that they will have to mend their ways. It seems to me, given the fact that in New Zealand in the last 6 to 8 years we have seen an explosion in the number of P labs busted—from about three or four a year back in 1997 to over 200 a year in the last few years—that unless we look at every possible measure available, and at leaving no stone unturned, then we are not doing our duty in ensuring that everything possible is done to stop this despicable criminal behaviour.
So National will support the Criminal Proceeds (Recovery) Bill going to a select committee where, I hope, that question will be thoroughly looked at. As I said before, although I do agree with Hone Harawira that the principle of being deemed to be not guilty until proven to be guilty should indeed remain as the basis of the philosophy behind criminal justice in this country, it is appropriate that we leave no stone unturned and that we try to think of every possible approach in our effort to stop illicit drug-dealing in this country. Thank you, Mr Assistant Speaker.
The ASSISTANT SPEAKER (H V Ross Robertson): The member is perfectly entitled to seek the leave of the House. Is there any objection to that course of action being taken? There is.
KEITH LOCKE (Green) : I will make just a few points to follow on from what my colleague Nandor Tanczos said earlier. I would like to talk about this reverse onus of proof issue, where effectively one has to prove oneself innocent rather than being proved guilty. I will read out a bit of the general policy statement in the explanatory note to explain how the Criminal Proceeds (Recovery) Bill proposes that people can prove themselves innocent: “To obtain a profit forfeiture order, the Director must prove on the balance of probabilities that the respondent has, in the relevant period of criminal activity, derived benefits from significant criminal activity. Once that is proved, the value of those benefits is presumed to be the value stated in the application … It is then for the respondent to rebut that presumption on the balance of probabilities.” I think that would run counter to a recent Supreme Court decision in a drugs case, Hansen v R, where the Supreme Court stated that it supported Hansen in relation to the application of that drug charge because he should not have to prove his innocence.
Another worrying aspect of this law is that the money taken in from these forfeitures goes straight into the State treasury and, although that might be a relief to some taxpayers in the sense that additional money is going in there, surely, if we are interested in victims and in their rights and benefits, any such moneys should be, at least, not just part of a profit-seeking exercise. My colleague said previously that one of the problems with the British law was that it seemed to be a money-gathering exercise, so we are a bit worried about that aspect.
We are also worried about the whole concept, and Hone Harawira spoke very eloquently, I thought, about the undermining of the basic principle that one is innocent until proven guilty. The other worrying aspect is that it can lead to injustices in the sense that, effectively, plea bargaining will go on. If the police come up to somebody and say they have not quite got the evidence to get him on this crime but they think that he did it, and the person says that he did not do it but that someone else did, the police can say that they do not really have the evidence to prove him guilty but on the balance of probabilities they could nail him and do him for a million dollars or the equivalent in assets.
That person would then realise he was in a bit of a corner because he knows the way things work, and that a guy down the road has a grudge against him and—as Hone Harawira said—that guy will give some supposed evidence to say that the person’s million dollars in property comes from illegal activity. So the person is looking at a very difficult situation. When the police come back to him they say that they will not go down the track of taking the million dollars from him if he pleads guilty to a lesser charge, which will give him only 3 months in jail. The police ask him which way he will go. The person, as part of this plea bargaining, takes the 3 months’ jail in exchange for holding on to his million dollars’ worth of assets. That is the very tricky situation we would get into if this law goes through. Thank you, Mr Assistant Speaker.
|Ayes 109||New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 3; Progressive 1; Independent: Field.|
|Noes 10||Green Party 6; Māori Party 4.|