Organised Crime (Penalties and Sentencing) Bill

I last spoke on this bill on Thursday, 26 June and indicated that National supports the legislation. It is legislation in short form—it barely occupies two sides of paper. It is no wonder we support it, because it actually steals National Party policy. The bill makes amendments to the Crimes Act by increasing from 5 to 10 years the maximum term of imprisonment for the offence relating to participation in an organised criminal group. It also makes changes to the Sentencing Act—and this is the stolen policy—because clause 6 amends section 9 of the Act, which relates to aggravating and mitigating factors that the court must take into account when sentencing. The explanatory note states: “The effect of the amendment is to insert a new aggravating factor that relates to offending connected with participation in organised criminal groups.”

On Thursday I made some comments about organised crime and gangs in New Zealand. I would like to continue on that theme for a moment. Organised crime as such is an amorphous term—individuals, motorcycle gangs, or transnational crime can come under that umbrella term. Its operations are highly organised criminal enterprises with budgets far outstripping those available to the police. I have listened with interest to the debate in this House during question time as to the number of people who are actually associated with these gang movements. The information available to me from the police indicates that there are nearly 6,000 patched members and an estimated 60,000 associates who hang around ethnic, outlaw, motorcycle, and youth gangs in New Zealand. So they outnumber sworn police officers by nearly 8:1.

There are those who naively believe that New Zealand gangs will eventually self-destruct through their exposure to methamphetamine and P, or that senior members may actively discourage their own offspring from following in their footsteps. But I think the reality is that for every gang member who leaves there are many disenfranchised and alienated youths ready to take up the colours. Some gangs may not survive—I accept that. But their members usually merge into other more powerful entities. In a trend that has come straight from the United States, Canada, and Europe, some of the stronger New Zealand gangs are patching over, as it is called, smaller clubs. Patching over, as the name suggests, allows the stronger club to absorb the smaller club into its membership, sharing the stronger club’s patch in return for a share of the smaller club’s earnings.

I think what is happening in the United States in the area of methamphetamine use is interesting. The United States now lists methamphetamine as its single biggest drug problem. Americans are beginning to count the drug’s huge cost on social services. My understanding is that the latest data available from the United States indicates that the cost to America of the methamphetamine scourge, which is primarily driven by the gangs, is approximately $400 billion each year. A similar study in Australia 5 years ago said that the cost to Australian taxpayers of illicit drugs was estimated at $1.7 billion. In New Zealand we are seeing gangs legitimise their wealth by buying into established businesses. Many senior members of gangs have given up their identifying patches, and wear long sleeves in order to hide traditional gang tattoos, so as to better blend in with mainstream New Zealanders.

This legislation is important, but it is only a small start on what is a major problem.

This is an interesting area of the law. Section 98A of the Crimes Act 1961 is an important section that has not been properly utilised to date because of the limitations on gathering evidence. Section 98A reflects somewhat the law of unlawful assembly, but it differs in that criminal groups—which is the correct title, rather than “gangs”—act with greater subterfuge than those at street level that are identified by the offence of unlawful assembly. So although the rudiments of the two offences—unlawful assembly and organised criminal groups—are fairly similar, the areas in which they apply are very dissimilar.

In the time that I was at the criminal Bar—

💬 Simon Power: Those were the days!

Those were the days of good income and a lot of freedom. But, anyway, I appeared frequently in many of the High Court’s jurisdictions in the North Island, and I had many encounters with serious members of gangs, from the highest echelons to the lower echelons. It always struck me that it was never the masterminds of the criminal activity who appeared before the court. Whether it was a High Court class A or class B drugs trial or a District Court class C cannabis trial, it was invariably the lower ranks of the gang hierarchy who took the blame for the serious ranks. So the law relating to criminal groups is important in our country because these groups are not the ethnic gangs referred to, I think, by the last speaker, but, rather, groups of professional criminals. These groups transcend questions of ethnic association and forms of that. We are talking about gangs that probably are transnational and overseas influenced, and we are talking about techniques that people would see on a TV screen but would never believe happen in New Zealand.

I want to recount two examples. I have appeared in many trials involving undercover operations—sometimes for 6 months. I have appeared for the police who were involved in those undercover operations and were in strife themselves, and I have appeared for the criminals and people charged with offending. Time and time again those operations—which cost hundreds of thousands of dollars and a huge amount of man-hours, and took police officers off the street while they conducted the surveillance—picked up the runners, the shoppers, and the sellers, but never people of wealth, because the money had always disappeared to regions unaccounted for. However, in contrast, I have also appeared for business people who were charged with possession of a serious drug for the purpose of supply, who used the purpose of their business, and excuses attached to that, as some form of defence.

I think what turned the corner for me in my criminal practice, and one of the many factors that led me to this place—a very fateful and uncertain decision that was, indeed—was a trial I once did in a High Court jurisdiction. I was acting for a tradesman, a man whose job it was to work on vehicles and improve the quality of them. He was a very well-regarded man who worked for commercial operators, and he happened to have two vehicles in his workshop that came from apparently different sources. He worked on them, but they were never uplifted and he was never paid, so they remained in his workshop.

One day the police raided him and accused him of receiving these vehicles of some value, and because he could not explain who the owner really was, he was charged. Also charged in the trial was another individual, of much scruffier appearance and with no clear means of income, who was at first appearance a ne’er-do-well. As we conducted depositions in the lower court—and those were the days of depositions, I should say—it became apparent to me that my client’s instructions were becoming less certain, and he was becoming somewhat reticent. It turned out that the nondescript-looking co-offender in fact had connections to a gang of international reputation. He was conveying instructions to my client as to how my client should instruct me during the course of the deposition hearing. My client, of course, was a decent person and a decent businessman, and did not want to follow those instructions. One night during the deposition hearing he was taken from his home at midnight to a remote spot and threatened with kneecapping unless he released to the gang a vehicle worth $25,000 and changed his instructions to me the next morning.

That was the time when I decided the work I had been doing in the criminal courts was becoming a less than useful function, because in this instance the instructions that I was receiving as an experienced criminal barrister were being affected by someone who had a vested interest in the outcome—keeping one person out of jail and getting another person into jail. At that time I decided that gang membership was no longer a destiny for just the socially disaffected and those from impoverished circumstances; gangs that were not necessarily associated with some of the major patches we see in our newspapers were operating in this country at a level that I had not seen or experienced before.

That is, to me, the definition of a criminal group, and that is why I think it is a good idea that we increase the penalty from 5 years’ imprisonment to 10 years’ imprisonment. One of the many effects of doing that, which makes the offence a most serious crime, is to bring it into the jurisdiction of police surveillance by modern, surreptitious means. Quite clearly, the only way to get to organised criminal groups in this country at a level that is effective—not at street level, but at a level that is effective—is by way of interception equipment and other means that are made available by increasing the penalty.

My anecdotal experience was one of the most nerve-racking experiences I have had at the Bar, and it certainly woke me up to the way this country was moving in terms of serious crime. I have many other stories that relate to gang life—and I have to say that it has much colour and much interest. I am pleased to say that I have some friendships with serious gang leaders in this country— friendships that I value at the level they are. We certainly do not socialise together, nor do we conduct any commercial activity together, but the bonds forged from many battles are enduring. I respect those friendships with those people, as I think their relationship with me is respected by them, at the level they are.

But for groups at the other level, at the level that section 98A of the Crimes Act attacks, no one of a moral perspective—of normal moral principles—can form any sort of relationship with these people, because they have a different moral code entirely. They use people to an extent not imaginable by most people in New Zealand, and they pervert the justice system in a way that would make all of us cringe. They operate at a level of high finance, so their material position is much advantaged, and they use it in a way that is sinister, to say the least. I am aware of criminal groups in this very city that act as financiers and write cheques of considerable amounts to further the criminal group’s purpose.

These people undermine the structure of our society. They undermine our whole economic system. They develop the black market, but, worst of all, they undermine the lifestyle of you and me—law-abiding citizens who try to live honestly every day. These people live entirely outside the rules and they need to be identified for their criminality. They are not street thugs, they are not the people we see in newspapers wearing patches, and they are not the sorts of people whom we commonly associate with being gangsters. These are people who live sophisticated lifestyles that many other people would aspire to. Their source of wealth has to be disowned and discouraged, and our criminal law should be set upon them. That is why I speak with some enthusiasm in support of this amendment to the Crimes Act.

The Organised Crime (Penalties and Sentencing) Bill will have the support of the National Party at its first reading, as my colleague Dr Worth indicated in his opening remarks, which, I believe, he commenced on Thursday afternoon and concluded today.

I must say that I always find the preceding speaker, Russell Fairbrother, interesting with regard to the comments he makes about these issues. He is probably one of the people in this Parliament who is best placed to talk from experience on some of these issues. I have noticed that Mr Fairbrother is getting more free and open with his views on these matters as certain dates loom. That is to be encouraged, because some of that wisdom is now being imparted on a more widely recognised and digested basis, and indeed he does bring considerable experience to this debate.

The purpose of this bill, as, no doubt, preceding speakers have indicated, is to increase the maximum penalty for the offence under section 98A of the Crimes Act. This section relates to participation in an organised criminal group. That is important to state, because for many, many years we have heard political discussions about how to deal to gangs. This amendment to the section assists with dismantling organised criminal activity by increasing the penalties that are contained in that section from 5 years to 10 years. Increasing the maximum penalty from 5 years to 10 years for participation in an organised criminal group brings with it certain benefits, as not only will it involve seeing those found guilty under section 98A taken out of circulation and society for a longer period of time but also it will reflect the range of culpability that may attend section 98A offending.

Of course, an offshoot of this increase in sentence length, as indicated by Mr Fairbrother, means that interception warrants will be made available for investigations under section 98A. That is a particularly helpful mechanism to make available to law enforcement authorities with regard to the offence of participation in criminal activity. As members will be aware, the two suggestions contained in this bill were first floated by the National Party in August of last year. We have since discovered, through discussions in this House, that Cabinet had approved the two matters contained in this bill in early July last year. Under questioning in the House it became apparent—as one political editor made clear in his blog—that the reason for the delay in the introduction of this particular bill dealing with such a crucial issue of public safety was the then preoccupation with the Electoral Finance Bill and the fact that it kept various attendant Ministers busy at the time.

What we saw there was clearly a decision made by the Government to put the Minister of Justice’s energies into the Electoral Finance Act ahead of issues relating to gangs. That is not acceptable. We know for a fact that the Government is now keen to see in force the two out of the four initiatives that National had suggested be adopted in the Organised Crime (Penalties and Sentencing) Bill. The only regret we have in supporting this bill is that the other two points we made were not also adopted at this time, in order to provide the police and other law enforcement authorities with a suite of tools that would be effective legislative measures for dealing with the influence of gangs and, in particular, their organised criminal activity.

That point leads to the second part of this legislation, which proposes a change to section 9 of the Sentencing Act, that relates to the aggravated and mitigating factors to be taken into account by a court at the time of sentencing. This bill would provide that it is an aggravating factor where an offence is committed partly or wholly because of the offender’s participation in an organised criminal group. In other words, if it was the intent of this individual to be associated with a wider network or association of criminal activity, then that would be seen by the court, and should be taken into account by the court, as an aggravating factor at the point of sentencing. The message that Parliament would be giving judges and courts through amending this section is that this Parliament believes that membership of an organised criminal activity is a very big negative and that it should lengthen sentencing, or, at the very least, should be taken into account at the point of sentencing.

I am still a bit concerned that the ideas contained in the bill lack perhaps some of the detail of approach we suggested around things like gang fortifications, and surveillance on gangs and gang fortifications—which, curiously, is contained in the Local Government Act—and I think that those issues should be dealt with at the same time as the ones I have already outlined. We know that any organised criminal group that is involved in the supply, manufacture, and distribution of methamphetamine, or the drug P, as it is commonly known, should be dealt to by Parliament with a range of punitive tools that makes it clear that the drug P is an unacceptable scourge on our society. It is a drug that is having a devastating effect not only on our young people but also across all sectors of New Zealand society. This drug must be stamped out, and those who manufacture, supply, and distribute this drug must be stamped out alongside the drug itself.

Although this bill lacks a range of measures—in fact, it is only two pages long—and a range of tools, it is a start. At the select committee National will be interested in exploring the scope of this bill to include other methods or tools to increase the tool kit for law enforcement agencies to take the necessary action that is required.

There has been some confusion amongst the media about whether it is this bill or the Serious Fraud Office (Abolition and Transitional Provisions) Bill that we are debating. The Serious Fraud Office (Abolition and Transitional Provisions) Bill is, of course, already at the Law and Order Committee under the watchful eye of the committee’s chairman, Mr Ron Mark. This bill is, of course, a different piece of legislation—one that is designed specifically to zero in on sentencing options for a judge or court at the point these matters come before that jurisdiction. Mr Fairbrother is quite right when he says that those who are involved in an organised criminal group live to a different moral code. From time to time Parliament has to make judgments about moral codes on a range of issues that are always controversial. This particular bill though is not controversial. It is a small step in the right direction. It is a late step in the right direction. It has been a delayed and hesitant step in the right direction as far as the Government’s actions are concerned. National, which has incorporated in its original four-point plan released in August last year two of these matters, will be supporting the bill through its first reading to, I believe, the Justice and Electoral Committee.

Oh, how slowly the wheels of democracy turn! That is what springs to mind when I look at the Organised Crime (Penalties and Sentencing) Bill and reflect on the history of this issue. It is timely to point out to the House that when I first came to Parliament in 1996 I was part of a coalition Government—New Zealand First and National—in which some attempts were made by the then Minister of Justice to improve section 98 of the Crimes Act, with the similar intent of tightening the legislation to enable the successful prosecution of criminals who consort or associate with each other, and act in a coordinated and organised manner against the citizens of this nation.

On reflection, I guess we would have to conclude that the approaches taken by the National Minister of the day were timid—very timid. But they were an improvement, we thought, on the legislation at that time. Subsequently the Labour Government in 2002 attempted to make some improvements to the Act again. It was an interesting time; the Labour Government was in coalition with, or heavily dependent on—was it the Greens? It was interesting because at the same time it was also heavily dependent on United Future; I think it was in formal coalition with United Future and relied on the Greens for support. We saw improvements in the legislation but again, as history and time have shown us, those improvements have proven to be inadequate.

Let us look at the history of section 98A. Going back to 2006, I asked, on behalf of New Zealand First, a number of written questions of the Minister of Justice about the number of prosecutions brought under this provision. It is interesting to note that in 2003 there were 76 prosecutions, in 2004 there were 209, and in 2005 there were 58. The small number of actual convictions obtained is sobering. If we go back before that, I have to give credit to Marc Alexander, a former United Future member, who raised questions about the small number of convictions obtained from prosecutions brought under that section of the Crimes Act. That again highlighted the flaws that existed in the provision.

The fact is that when we talked to police officers they said that they know that these people are organised criminals, they know they are members of gangs, they know they act in an organised manner, and they know they are specifically and deliberately involved in organised criminal activities for profit. Some of them said that it was difficult—indeed, pointless—to attempt to prosecute those people under section 98A, because it was too open and the offence was too difficult to prove, and the chances of getting a conviction were slim. It is interesting that we had to wait until the killing of a baby girl in Wanganui before something was done. She was killed by people whom we knew were gang members and organised criminals, and who conspired through their silence and obfuscation to attempt to defeat the course of justice and our attempts as a nation, through our judicial process, to bring to trial the people who killed that wee girl. It is interesting that other aspects of section 98A were again discussed and pored over as a result of Graeme Burton’s release and his murder of Mr Kuchenbecker. [Interruption]

I say to Harry Duynhoven that it gives New Zealand First some concern that of late there seems to be a pattern emerging whereby citizens who are riled come to Parliament, go to MPs, or approach the Government with their concerns about an issue—and, indeed, members of Parliament come to the House with members’ bills that attempt to deal with some of these issues—and one after the other, in turn, they are turned away. It is only when events transpire that result in a death that the Government moves. It saddens me that this Government is now seen in that light. To be specific, I point to George Hawkins’ tagging bill. It was brought to Parliament in good faith on behalf of the people of Papakura, in the electorate he represents, and it was seen by the whole nation as a bill worthy of support, but it got no support whatsoever from the Government until a young man was killed. That trial continues in our courts today.

Martin Gallagher also brought a bill to the House—the Sale of Liquor (Youth Alcohol Harm Reduction) Amendment Bill—and in the report back on that bill we discussed at length the problems of the proliferation of liquor outlets and the social damage and social chaos being inflicted on communities. We did not have to look very far to see other nations that had done the same thing and taken a free-market approach to the sale of liquor at all hours of the night and through all sorts of avenues. Wherever we looked it was easy to find incidents of liquor stores being robbed—of armed robberies and people being killed. The Law and Order Committee’s report on Martin Gallagher’s bill pointed out that this issue needed addressing, but nothing happened until a Manurewa proprietor, a member of the Sikh community, was killed.

I hate to say it, but that leaves the nation asking what it is about this Government that makes it dismiss out of hand on so many occasions issues such as this that citizens have brought to its attention, and wait until someone is killed before it accepts the relevancy and the accuracy of the arguments, and moves. It is a sad, sad thing to reflect on. It may not be the Government’s intent to be seen in this light. It may argue that that is not a fact and that it was working on the issue, but the wider public is left with the perception that the Government ignores the problem.

One could argue that section 98A has been a little slow in getting to the House; there are many reasons for that, and we have heard some of them. The point is that it is here. But let us not fool ourselves. Section 98A will deal with one end of the gang and organised criminal fraternity, and that is, in the main, the people who drive BMWs and Mercedes, wear suits, and are never seen wearing a Hell’s Angel patch—never! We like to think that this bill will specifically target the types of people who cut a swathe through a Hawke’s Bay party with machetes and knives the other weekend. It will not. The people who did that are the dumb end of gangs and organised crime, the “el thicko” end, the end of organised criminal activity that will always be easy to deal with in the sense that they will be caught and locked up. But we should not kid ourselves that we will confiscate an absolute fortune in criminal proceeds from their activities, because the big boys, who this bill is really aimed at, are at the top end. Those people wheel and deal and work the $1.5 billion methamphetamine market in this country, which is causing huge damage to youth and young people who get hooked on P—arguably, more damage than 101 dumb Mongrel Mob members cause.

New Zealand First is very, very clear about who this bill is aimed at. We are very, very clear that it should have been introduced a long time ago. We are very supportive of it. We hope we can get this legislation through the House before the election, so that it is enacted and the police are given a valuable tool that they need. We congratulate the Government on finally putting the legislation on the Table, and we look forward to hearing submissions in the select committee, seeing the report back, and, finally, the bill being given the Royal assent. Thank you.

Before I call Mr Locke, I will just make a comment. There are a number of conversations that occur, and I always am conscious of the members from the parties at the end of the Chamber having to speak through long conversations, and fairly loud conversations, because I can hear them here. I notice also members of those parties at that end of the Chamber becoming agitated sometimes. Thank you.

There was a good article in the New Zealand Herald a few days ago, on 25 June. The article was written by a chap called Brian Rudman and had the headline “Lock ‘em up? Must be election year”. This bill is about a law and order, harsh, and punitive approach to the problems with criminality in our society. It is a law and order competition between the Labour Party and the National Party. Labour has just pulled this cat out of the bag in trying to outbid National, and as a political tactic it is idiotic. It is legitimising National’s right-wing “bash ‘em, lock ‘em up” policies. National is always able to go one better than Labour. Richard Worth has already said earlier on today: “Labour has stolen our policy”. It is the same thing that has happened with tax cuts. Labour, in adopting National’s tax cut strategy, has in essence legitimised National Party policy and only given the National Party a greater poll lead. It has legitimised, in the form of tax cuts, the idea of looking after oneself rather than being concerned about social provision—that is, looking after the environment and all the other things that the Government needs to spend tax money on.

It is an idiotic tactic; it is putting Labour even lower and lower in the polls. That is demonstrably provable, and a really progressive Government would not compete with National as to how many people to put in jail. The number of people in jail has gone up hugely in Labour’s term in Government. It is now around 8,000; at 197 per 100,000 it is one of the highest imprisonment rates in the world. It is twice as much as most Western European countries, and, of course, in National’s bidding Simon Power has promised another new prison to up that total even more. One does not need to be too smart to know that prisons are a training ground for crime. The more people we put in jail the more people we are training to commit more crimes, and the more members of criminal groups, as defined in this law, whom we put in prison the more that jails are a training ground.

Russell Fairbrother says that we are putting the leaders of gangs in jail, and there is no denying a certain advantage in putting the leaders of criminal groups in jail, but often it just means that more leaders come through the ranks, and the leaders who end up in jail continue their work training the people inside. The young kids in the gangs, who sometimes get caught up under this law as being associated with criminal activity, get more training too. It is very hard for young kids in jail to get out of a gang, because they do not have far to run if they get offside with a gang. It is not the best environment to get out of a gang, and the rehabilitation programmes in jails are not particularly good.

I was looking at my emails a few minutes ago and one came through from Prison Fellowship, and it is appealing for money. It says: “Competing pressure and priorities facing the Government have meant that the recent Budget provided significantly less than we had hoped for. We need $200,000 to meet our payments over the next 2 months.” This is a group that provides mentors, and helps prisoners coming out of jail to get homes and jobs. They stand alongside them in the transition to a life inside the law, rather than outside the law. This organisation wants $200,000, which is just about the cost per year of keeping a couple of people in prison. It costs $92,000 per prisoner per year to keep a prisoner in jail, or a total budget for our Department of Corrections of about $800 million. It would be much better to spend that money on addressing the causes of crime in various ways, and providing people in areas that are subject to a lot of criminality with more creative things to do.

I was just reading over the weekend in one of the papers about the rather unusual policy in Venezuela. They went into an area with a high youth criminal rate and distributed classical musical instruments. The kids started playing them in a community setting, and the crime rate dropped. I think creating strong communities is important. I think it is important to empower the community groups in poorer areas that just do not have the resources to run their various sporting and cultural activities properly, so that they can pull in the young kids. We should be giving them more resources.

The New Zealand Herald article quotes Professor Coyle who was a prison governor in the United Kingdom for some time. He said that policy makers are now—unfortunately not in New Zealand in the Labour and National Parties—examining whether the cash for prisons would be better spent on “rebuilding the social fabric of community—schools, healthcare, public spaces, etc.” That is the answer—to work where possible with gang members for constructive ends. Russell Fairbrother said that he does have some friends in gangs, presumably at the less criminal end, and hopefully his friendship is working towards constructive ends. The persecution of gangs is not necessarily productive; it can strengthen them because gangs tighten up when they are being attacked—that is what gang warfare is all about. If a leader is losing a bit of loyalty in his or her gang—it is usually his, of course—that leader starts a scrap with another gang.

The problem with this particular law—and it has been addressed and debated as it has been amended over the years—is that it is partly a law of guilt by association, which is not the fairest way of approaching criminality. It has not worked very well, as the last speaker indicated. At present, clause 98 says that a person can be convicted if he or she is “reckless as to whether his or her participation may contribute to the occurrence of a criminal activity.” That is so vague that the conviction rate in a reasonable justice system ends up being quite low. It is a much looser definition than is required by the United Nations Convention Against Transnational Organized Crime. Article 5 states that to qualify, a person “takes an active part in [the] criminal group activities of the organized criminal group;”. The conviction rate under our loose definition is not much more than 10 percent. What has tended to happen is that the people who have been convicted have been convicted on another charge like violent robbery, and then membership of a criminal group has been chucked in on top of that, rather than being proved as the base crime.

Now, under this bill, it will be a little different; it is going to be an aggravating factor in sentencing. All one needs to do is prove that the person has an association with a group. There is the argument that we need 10 years so that we can get interception warrants. But surely if the underlying crime that is being investigated, and this criminal group is associated with it, has a penalty of 10 years, in most cases an interception warrant can be issued. Why do we need to up the ante for this particular offence, to achieve that purpose? This bill is going in the wrong direction; it is only increasing our prison numbers, and increasing the use of prisons as a training ground for further crime. There are examples all around the world, and particularly in Scandinavia, of going in the opposite direction; a better direction.

Our goals should be to reduce the prison population, not to boast how many people we have in jail. We are still a bit behind America, which is the other very bad example, but there are good examples in Scandinavia where they have decided to get the prison population down. They have put in rehabilitation programmes, reduced sentences, and looked for other ways of dealing with crime, outside of imposing long sentences, and the prison population and the crime rates have gone down. It can succeed if we put our money into groups like Prison Fellowship, which I just talked about, and into reducing poverty. When we have beneficiary families who are worse off than they were in 1991, at the time of the benefit cuts under the Bolger Government, then that is a breeding ground for crime. We have to address all of those issues if we are to solve the crime problems.

Tēnā koe, Madam Assistant Speaker. Tēnā tātou katoa. In parts of my electorate over the last week, the mountains have been brushed with snowfall. In the quiet stillness of fresh snow, there is a purity that is akin to wiping the slate clean. Everyone waits for the first person to tread a new path across the front lawn—the first footprints to leave their trail. It made me reflect on the bills that we are hell-bent on passing into law to crack down on gangs, to stamp out organised criminal activity, and to get tough on crime.

What is the new path that we are treading here with this Organised Crime (Penalties and Sentencing) Bill, and where will the pathway lead us? Make no mistake, the Māori Party is as concerned as any New Zealander is about the mammoth costs of crime, both personal and financial. We understand that the recently estimated economic and social cost to the nation was around $9.1 billion. The forecasted budget for the core criminal justice agencies for 2007-08 is approximately $2.7 billion. These are extraordinary costs that we all know could be spent much more effectively on building social capital.

But the cost to families is just as savage. At 150 inmates per 100,000 persons, New Zealand has one of the highest per capita imprisonment rates in the Western World, second only to the United States. In particular, we have an extremely high rate of imprisonment for first offenders and young people. If we are not worried about this, perhaps the comment of Baroness Vivien Stern from the International Centre for Prison Studies at King’s College, London, might make us think again. She came here to attend Prison Fellowship New Zealand’s 25th anniversary conference, and was reported to be astounded at the high rate of imprisonment in New Zealand. Baroness Stern’s comment was: “I would have thought that ideas of equality and justice would have been stronger in the face of pressure to lock up New Zealanders.”

This bill is, at its very essence, all about locking up New Zealanders. Locking them up, even though the Ministry of Justice’s recent Effective Interventions overview concluded: “Prison is not the most effective or efficient approach to reducing crime.” Yet, in this bill, we are increasing the maximum penalty for the offence of participating in an organised criminal group from a 5-year maximum term of imprisonment to a 10-year maximum term of imprisonment. In this bill, we are amending section 9 of the Sentencing Act 2002 to make participating in organised criminal groups an aggravating factor that the court must take into account when sentencing, yet prison is not the most effective or efficient approach to reducing crime.

Everyone in this House is of course aware that in an election year some politicians and political parties are inspired to make political capital out of the misery of violence and crime. It is not as if this is a new issue. In relation to the issue of gangs, one of our judiciary reminds us: “There is probably no subject in the field of law and order that can provoke more selective and distorted coverage from the media, or more emotive and often ill-informed rhetoric from those in authority, than gangs.” The legal authority in question was Justice Sir Clinton Roper and the year was 1987. The thing is we have been here many times before. In 1979 there was a parliamentary committee on violent offending. Two years later, in 1981, a committee of inquiry was held into gangs—the Comber report. The Group Employment Liaison Scheme grew out of this report, and another six years later, in 1987, a commission chaired by Justice Sir Clinton Roper also came up with recommendations to address the gang issue. The Bail Act 2000 made getting bail harder for those charged with serious crimes who had been in prison before. Here we are, 20 years later, with another crackdown on gangs.

Just six months ago Mel Smith, an Ombudsman, released his report to the Prime Minister in which he reminded readers that the barren, inhumane, and psychologically destructive nature of imprisonment makes offenders more likely to be recidivists upon release. He cited a research report that looked at 50 studies dealing with recidivism, and that concluded that prisons should not be used with the expectation of reducing criminal behaviour, and that, on the basis of present results, excessive use of incarceration has enormous cost implications.

So I return to the fresh-fallen snow. Whose footprints are we seeking to lead us into the future? I put on record again my utter disgust for bullying or intimidation. I place on record again our stand as the Māori Party in opposing violence of any nature. I repeat our enormous sadness at the high rate of crime we are exposed to. But I must ask: when the Prime Minister asks the Chief Ombudsman for advice about improvements to the criminal justice system, and that advice appears to be disregarded, what hope do we have for rational debate on the sector? I remind the House of the Ombudsman’s key recommendation: “to establish a Commission of experienced and appropriately qualified people to investigate not only the operations of the entire criminal justice system, but to put forward explicitly, the philosophies and values which should guide its policies and practices into the future. Mel Smith believes that a royal commission is both necessary and appropriate precisely because the issues of crime and criminal justice have become highly politicised in that they are torn between two opposite philosophies: penal populism or soft liberalism.

The most distressing aspect of the whole context of gangs for me is the impact of this culture on our younger people. A recent visitor, British criminologist Kate Broadhurst, reported her analysis that in New Zealand our school gang problems are as bad as those in Britain. She reported that certain risk factors, such as the wearing of certain colours or the language that students used, laid the ground for recruitment into gang culture. Yet the Ministry of Education supposedly disagreed, saying levels of violent behaviour here were not nearly as bad as those in Britain. I have to tell it to wake up, look at the scarves, the bandannas, and the colours that we know are being worn under school uniforms; wake up and find ways to work with young people that will prevent them from wanting to find a future in a gang.

We cannot support this bill. We believe that Parliament needs to come up with much better answers than putting young people behind bars. We call on society to stop isolating these young people, and to create an environment of social inclusion. Let us invest in young people in every way that we can. I have to reflect on the issues that this Parliament has given priority to. We have debated the Wanganui District Council (Prohibition of Gang Insignia) Bill, the Serious Fraud Office (Abolition and Transitional Provisions) Bill, the Criminal Proceeds (Recovery) Bill, etc., yet we have not had one bill come to this House to address child poverty.

I want to leave the last word to someone who has experienced the senseless rage of gang violence in the last month. I am referring to the Hastings District councillor Hēnare O’Keefe, whose daughter and mokopuna hid in fear while her partner was smashed, stomped on, and kicked in a brutal attack in their own home. Following this savage assault Mr O’Keefe said: “The community has really got to take ownership in the homes. Every parent and everyone who has aspirations to be a parent, they have really got to rethink their role and say ‘Right, what sort of child do I want to raise’. There’s no substitute for good parenting, none at all. No legislation will give you that.” But he did more than talk. Hēnare O’Keefe called a march at which 2,000 local people joined together to say that enough is enough. In the quiet stillness of his speech he apologised on behalf of all parents who had deprived their children of proper role models, and he laid down the challenge to our young generation to stand up and break the cycle. His footprints are the pathway forward that we in the Māori Party want to follow.

I realise there is not a lot of time left, but I rise to make a few points in support of the Organised Crime (Penalties and Sentencing) Bill. I took some time to listen to the previous two speakers and their contributions to this debate. I say to my colleague the Hon Tariana Turia that although I accept that the long-term vision she has for addressing the gang problem certainly has a lot of merit, and certainly is a way that we need to go, I cannot get past the fact that we need to do stuff right now. You see, when we are dealing with gang situations that have violent extremes in our community, that leave people dead or injured, and that leave communities scarred and scared, someone has to do something. I notice that Keith Locke, in the 10 minutes he offered us, did not give a single solution on how we should deal right now with the situation we are confronted with.

There is a level of philosophy that smaller parties are able to have that shows some sort of understanding of the triggers or the contributing factors that result in gang membership and gang offending. But it is left over to others, if the responsibility is abrogated by smaller parties, to take initiatives to deal with the nasty end of it. Just because legislation is proffered by the Government and supported by the National Party—legislation that actually deals with that messy end of it—that does not mean that no cognisance is taken of those triggers or factors that contribute to gang membership and the proliferation of gangs and gang offending in times to come.

For one reason or another we all take various tracks on our way here, and my path took me down a track where I ended up in gang premises on a lot of occasions, standing nose to bottle, or nose to whatever—with a bloody nose on occasions—with gang members who were about to take my head off or have the better part of me unless I responded in a certain way. Quite honestly, giving them a classical musical instrument, as Mr Keith Locke suggested, was not going to cut it. I do not believe that the population of this country thinks that this will cut it—seriously. I am not saying it would never work. It might work somewhere on some drawn-out miniseries on television, but it sure as hell will not work within our community. We would be abrogating our responsibility if we put our whole thrust into the long-term objectives and did not deal with those people caught up in the 20-year—if we are lucky—lag time between where the offending is now and where it will take us if we do absolutely nothing.

This legislation addresses two things. It addresses issues around section 98A of the Crimes Act 1961. The problem we have there, as outlined by Mr Mark, is that we get precious little in the way of convictions—less than 10 percent in an average year. I am not sure that what we are doing here is the full answer to what we need to do with section 98A, but increasing the penalty will allow easier monitoring of gang conversations and gang activity—and so it should, because somebody needs to. Changing some definitions and allowing for the prosecution of people involved in that activity are other things that need to be addressed.

This legislation also lists gang membership as an aggravating feature when it comes to sentencing, and so it should. If someone does something as trivial—as some would say—as kick over a letterbox or pee in the street with a gang patch on, and he is doing it in circumstances that intimidate, maybe that person deserves a bigger penalty than a couple of silly kids doing that while wandering home from school. If a person robs a bank or a chemist, or pack rapes a girl walking home and takes her back to his gang pad, maybe he should get a heavier sentence as a member of a gang. Members on this side of the House and, I am pleased to say, members on that side of the House would agree with that. When people put on a patch it means that their presence is not just a passive presence; they are aiding and encouraging, so the penalty should be harsher.

National is pleased to support this bill. The point has been made on a number of occasions that this is National Party policy and has been for a long time, but this is not just a case where people are putting their hands up and saying they thought of it first. I am pleased to say that the major parties in this House have taken an initiative. For once they agree, which the public will be happy about, to deal with the serious end of gang violence in this community while we wait for longer-term initiatives to sow their seeds and reap some growth.

on behalf of the Minister of Justice: I move, That the Justice and Electoral Committee consider the bill and that the committee report finally to the House on or before 1 September 2008.

Motion agreed to.

The House adjourned at 10 p.m.