Criminal Proceeds (Recovery) Amendment Bill

on behalf of the Minister of Justice: I present a legislative statement on the Criminal Proceeds (Recovery) Amendment Bill.

ASSISTANT SPEAKER (Hon Jacqui Dean): That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Criminal Proceeds (Recovery) Amendment Bill be now read a second time.

This bill makes several amendments to the Criminal Proceeds (Recovery) Act of 2009. While our civil forfeiture regime is highly effective, these changes will further improve our success and efficiency at confiscating property derived from organised and transnational criminal activity. At a high level, the four amendments provide, firstly, new restraint in forfeiture orders where a person is associated with an organised criminal group and their known legitimate property was not enough to acquire their assets; secondly, a new disclosure of source order requiring overseas respondents to provide information on the origin of restrained property within two months or else face losing those assets; thirdly, express permission for funds in KiwiSaver schemes to be subject to civil forfeiture orders just like any other managed funds; and, fourthly, authorisation for the official assignee to hold seized property beyond 28 days if an application for a restraining order has been made to the court, as is the case with applications for forfeiture.

I’d like to thank all the submitters for their input, as well as thorough scrutiny from the Justice Committee. The matters highlighted by the committee show the trade-off at the heart of this issue between firstly upholding the rule of law by enabling forfeiture of illicit assets, and protecting people’s rights with safeguards against unjust seizure. Part of the bill that received the most scrutiny was the new type 2 assets forfeiture orders. These target the leaders and facilitators of organised crime who try to keep a distance from the offending from which they profit. I was pleased—and I’m speaking on behalf of the Minister of Justice; she was indeed pleased—to see the committee unanimously recommend the bill pass with the $30,000 threshold and the definition of “associate”. To be clear, the threshold is the minimum value of assets that can’t legitimately be explained, and an “associate” means a person who is more than a mere acquaintance of any member of an organised criminal group. The careful consideration by the committee gives me confidence that the provisions work together to strike the right balance.

There were thoughtful submissions on this matter, and I understand where both sides were coming from. To those concerned about the $30,000 threshold, I note that the cases involving the leaders and facilitators of organised crime targeted by these orders have been in the millions of dollars, far above the $30,000, and the existing forfeiture orders can still be used to seize assets below $30,000 if there’s proof those assets were derived from significant criminal activity.

To those concerned about legitimate property being unjustly taken from people associated with members of organised criminal groups, I note that the bill includes provisions to exclude people who are only a mere acquaintance of a member of an organised criminal group or have less than $30,000 in unexplained property and are therefore less likely to be leaders or facilitators. Also, the courts must not order forfeiture if it would be in the interests of justice to do so, if—must not order forfeiture, sorry, just to be clear, if it would not be in the interests of justice to do so, which protects against seizures that would be unreasonable even if someone is associated.

The committee also recommended some technical amendments to better give effect to the policy. These include, for example, making it clear that new orders should take account of the cumulative value of multiple assets that can’t legitimately be explained, and that a formal valuation is not required at the restraint stage when it might tip off a person and give them a chance to dispose of their illicit assets. We all agree that people should not be able to profit from breaking the law. The changes recommended by the committee help the bill achieve the intended effect of ensuring crime does not pay and deterring anyone from participating in organised criminal groups.

The committee also made several technical recommendations on the disclosure of source orders. These orders respond to cases where police have reasonable grounds to believe that assets have been derived from significant criminal activity but the property owner is overseas. If the owner were in New Zealand, it would be an offence to fail to comply with court orders investigating the source of the property; however, these existing orders can’t be enforced when the person is overseas. In short, the new disclosure of source orders instead incentivise compliance by allowing assets to potentially be forfeited if the owner fails to respond within two months.

I appreciate the technical amendments that the committee recommended to ensure the bill is legally clear and achieves its intended purpose. For example, the bill is now explicit that a conviction for failing to comply with a disclosure of source order is not required before the presumption in favour of forfeiture can apply.

I note that there were no substantive changes to the other two amendments, concerning funds and KiwiSaver and adjusting the official assignee’s authority to hold seized property.

These reforms also complement the law enforcement tools in the Criminal Activity Intervention Legislation Bill, both of which will help deter offending and enable the seizure of illicit profits.

I look forward, and I’m sure the Minister will look forward, to the bill passing through the remaining parliamentary stages, and I commend the bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker. National is supporting this bill, the Criminal Proceeds (Recovery) Amendment Bill, which the person standing in for the Minister of Justice just outlined, and thank you very much for that speech.

Look, I think all New Zealanders are rightly concerned about the rise in gang activity that we’ve seen across the country over the past few years. New Zealanders have had an issue with gangs for many decades, of course, but we have, all of us—whether driving around streets of our cities and towns, or reading the media—been made aware of the increased visibility of gangs on our streets, and also the ongoing huge profits that they continue to reap from the illegal drug trade in particular. So this bill is one step forward by the Government to try and make it easier to make sure that crime doesn’t pay and that some of the ill-gotten gains will be taken.

Now, as a general rule, I think it’s fair to say that we on this side of the House tend to be fairly critical of this Government’s approach to law and order and justice. We are frustrated, like many New Zealanders, that the Government, frankly, has been soft on crime and soft on the causes of crime. When I say “soft on the causes of crime”, we think of the long-term drivers such as kids not being at school, children growing up in motels, and much broader social issues that haven’t been effectively addressed, and we’re concerned about that. But, of course, when it comes to the actual day-to-day dealing with what’s in front of police officers, and the sense of criminality in our communities, then they’ve also fallen short. We have only one clear target, which is a reduction in the prison population by 30 percent, irrespective of what’s happening on the ground. And that, of course, doesn’t make any sense to anybody who’s concerned about ensuring that we are kept safe. And the prison population—yes, we want that to be low, but it has to be based on a genuine lowering of violent crime. Instead, what we’ve seen has been an increase in violent crime, and a big part of that story has been an increase in gang activity.

So this bill is one step forward. We support it. We just wish there was so much more to back it up because, unfortunately, what we’ve seen from this Government is a mixed message when it comes to the gangs. We have this legislation, for example, which makes it easier for Government to take the proceeds of crime from organised gang activity—organised crime. Yet, at the same time, other wings of the Government give succour to the gangs, gives them money to run programmes, and sends a very mixed message. And so I think that’s part of the broader problem.

But when it comes to the detail of this bill—I was on the Justice Committee with our colleagues, and I want to thank the chairman of that committee for most of the proceedings, Ginny Andersen—

💬 Simon O’Connor: Chair individual.

Pardon?

💬 Simon O’Connor: Chair individual or chairwoman.

Chairwoman. And so I think we worked very constructively on this bill.

Now, of course, there involve some significant trade-offs, obviously, between wanting to uphold the New Zealand Bill of Rights Act provisions, and this legislation definitely crimps those rights—in particular, in relation to allowing new restraining orders against properties owned by associates of somebody involved in crime. And that is, of course, a difficult area, and one which has potential for things to go awry. And so that, quite naturally, has been a cause of concern for many, but, ultimately, there needs to be a way to defeat the ease with which some organisers of organised crime have been able to divert funds into the hands of associates in order to keep them from the law enforcement agencies.

Then, we also had a debate about the $30,000 threshold. We were worried that was too high and that not just the metaphorical but the actual Harley-Davidsons might come below that threshold and not be caught by this legislation. I am pleased that, during the course of the select committee process, we did make the suggested amendment that the value of specific property would apply cumulatively, so clauses 15 and 21 insert new sections to that affect. So it would “allow the restraint and forfeiture of ‘specific property’ that an individual, associated with an organised crime group, had insufficient legitimate property to acquire.” And the bill as it was introduced didn’t make it clear whether that comprised a specific property—like one Harley-Davidson, if it was worth $27,000, might not meet the threshold. It wasn’t clear, so we are making it abundantly clear that if you happen to have two Harley-Davidsons that were worth $27,000 each, you would be losing both of them if you were captured by this bill. So I think that’s a useful step forward.

Now, we do take seriously the impact this has from a New Zealand Bill of Rights Act perspective. But we, of course, also have to weigh the rights of ordinary citizens to live their lives free of the marauding activities of organised crime, and the safety of the community and the need for justice—not just to be done but to be seen to be done, and to give the police the powers that they need to hold the perpetrators to account. And we believe the balance is fair and right in respect to this matter.

We hope to be in Government by October. And like all pieces of legislation, this is one where its impact does need to be monitored carefully. This is what we intend to do. We want to ensure that we capture the associates of members in organised crime—not just casual acquaintances but genuine associates. Now, only time will tell how that works in practice, and so, come five years’ time, we’ll be wanting to have a look at that and make sure that it has achieved what it set out to achieve, as indeed we do in all pieces of legislation.

In respect to any other matters of detail, I do want to thank the rest of the select committee and those who did make a submission. There weren’t an enormous number of submissions, frankly—only five, and we heard oral submissions from three. And I think that reflects a widespread recognition of the need for legislation of this type in order to help with them. Another small element was the inclusion of KiwiSaver schemes. Obviously, the KiwiSaver legislation was reasonably robust in its defence of those savings for retirement, but it’s not appropriate for that to be a perfect vehicle for sending funds to be kept from the authorities in this situation. And so changes in that space, we think, are appropriate, and we support that as well.

So, overall, this is a Government that we have many concerns about in the broader law and order and justice space, but they are capable of producing legislation that does take things forward from time to time. This is one of those occasions. On account of that, we are happy to support this bill.

Thank you, Madam Speaker, for the opportunity to make some brief remarks in relation to this bill. I must say I was a little disappointed at some of the rhetoric and catchphrases on that side of the House. However, I do appreciate that the Opposition are supporting this bill, and Mr Goldsmith is correct that the committee worked really well on this bill. It isn’t always easy to strike the right balance in terms of any incursion into rights but also providing police with the tools that they need to keep communities safe. And this bill is certainly in that space, as is the next bill that will be before the House that’s responding to a changed space in the criminal justice world.

The select committee report is a really robust one—so for those interested in the committee’s work, I would recommend reading it. But just pointing to two changes that the committee made, and Mr Goldsmith did speak briefly to one: the fact that the value of the specific property would apply cumulatively. So while restraint and forfeiture is permitted for specific property, clauses 15 and 21 weren’t clear whether that was cumulative or not. So that wasn’t so much a change we made, as opposed to ensuring that that was clear in the bill.

The second one which I thought was of significance was amending clause 15 to allow the Commissioner of Police to provide estimates rather than a formal valuation, and that isn’t the end of the process, of course, because, once a property is restrained, it is possible to undertake a formal valuation at that stage. So, again, it just demonstrates the balancing act that the committee was looking to achieve in terms of ensuring fairness but also community safety, and, again, providing police with the tools they need. So it’s a pleasure to commend this bill to the House.

Thank you, Madam Speaker. It’s a pleasure to stand and take a call on the second reading of the Criminal Proceeds (Recovery) Amendment Bill. To say that the Justice Committee as a whole navigated its way through and thought that we’d come up with a good compromise around the cumulative value on goods is complete and utter nonsense. If they want to get serious about this bill, they have to drop the threshold, and we made that point time and time and time again—not just to $10,000. Actually, you don’t even need a threshold in this bill. If you want it to be effective—if you actually want to start hitting the gangs—remove the threshold. It’s a massive loophole there for them.

This is the problem: with all the legislation that this Government—this soft on crime Labour Government—brings to this House, it’s always doing as little as possible. It’s always sitting on the fringes, whether it be a firearms prohibition order—which, by the way, I don’t even think has been used; that’s got no new warrantless search power—or whether it be this bill, the Criminal Proceeds (Recovery) Amendment Bill, which has got a $30,000 threshold. What did the police say? I’d invite the next Government speaker to actually tell us what the police told the committee. The police were very clear. The police Minister at the time—now the Prime Minister—wanted the threshold dropped. The police didn’t want the threshold at $30,000. Why is the threshold still at $30,000?

They were very clear that, if you want this legislation to be effective, if you really want us to clamp down on the gangs—and this is the real rub. This is the real rub: you read the report and they say that, in 2020, the incoming Labour Government were very serious about clamping down on gangs. Then you had Iain Lees-Galloway sitting over there squawking like a raptor when we said that we wanted to introduce a taskforce that would be effective and start to deal to the gangs. We’ve seen over a 50 percent increase in them. We’re seeing violent gang crime every day. I read in the media today that there was a mother with her badly injured son in the critical care unit in Christchurch that was taken over by the gangs. They blocked off their own parking. Every week, we see them taking over public spaces and public roads. We see them intimidating and abusing members of the public.

This problem has got out of control under a soft on crime Labour Government. What is their answer to it? Well, the first answer was this: every—

💬 Anna Lorck: Stop saying that.

Stop saying what? Soft on crime? Own it—own it. You get up and take a call and tell us why the rest of the country, when they’re asked, see you as soft on crime. I’ll tell you why: they’ve watched, for the last five or six years, a massive increase in gang numbers, a massive increase in gang violence, a massive increase in youth and juvenile offending. That didn’t just suddenly happen. You might sit in the ivory tower down here—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! Don’t bring the Speaker into the debate.

Sorry, Madam Speaker. The member might sit in the ivory tower down in Wellington. Go back into your own electorate and talk to the people there and ask them whether they feel safe. They’ll tell you that they don’t feel safe. I’ll tell you why they don’t feel safe: it’s because the Mongrel Mob think that they run the town. The Mongrel Mob are out there carrying firearms, and the Mongrel Mob are out there assaulting, looting, and intimidating people in your town. That’s how the people feel. I don’t know if you were at the public meeting on Tuesday last week. I don’t think you were. I don’t think the member was there.

ASSISTANT SPEAKER (Hon Jacqui Dean): OK. Order! The member is an experienced member. I’d ask him to come back to the bill. He has talked around organised crime, but I want him to be a bit closer to the second reading part of this bill. I ask the member not to bring the Speaker into the debate. It’s difficult; I know the House is passionate, and that’s great.

Sorry, Madam Speaker. So what’s one of the best things that the member could do to actually start to have an impact on the Mongrel Mob in the Hawke’s Bay that are terrorising the community up there?

💬 Hon David Bennett: Lock ’em up!

Well, yeah, lock them up. That’s right. David Bennett is 100 percent right. Lock them up. Have some consequences. That’s the first thing. But do you know what you could do? You could actually get rid of the threshold in this bill. You could make it much easier for your local police officers to go out and actually start to seize some of these assets. The member could make it much easier for her local police to go out there and start seizing assets from these gangs. So why not put the energy into actually supporting that—speaking to her colleagues and actually getting support inside the select committee to make the change that this bill needs?

They don’t like being referred to as “soft on crime”, but I’m sorry, the reason why this bill is in front of the select committee, the reason why this bill is in the House, is because it’s some weak, vacuous attempt by this Government to try and make up and to try and fix a problem that they know they’ve created over the last five or six years. It’s exactly the same as the last weak bill that they brought into this House, which was the firearms prohibition orders bill.

ASSISTANT SPEAKER (Hon Jacqui Dean): Stick to the bill.

I’d like to know how many times that’s been used. And, by the way, while the member was talking about bills being brought into this House, how many bills has this Labour Government voted down that National members have brought into the House in the last six years?

ASSISTANT SPEAKER (Hon Jacqui Dean): Let’s stick to this bill. The member has strayed wide enough and far enough, and I need him to speak, in the second reading, on the Criminal Proceeds (Recovery) Amendment Bill.

Thank you, Madam Speaker. Well, it’s very hard to draw this bill out, and I’ll tell you why: because it’s useless. Unless they drop that threshold from $30,000 to nothing—and we’ll be working very hard to do that—this is a useless bill. It’s not going to get used. It’s like the other legislation they’ve brought through here; it’s vacuous. It’s on the fringes. It really doesn’t do much.

So, although we’re in this situation where, actually, we are going to support anything that comes through that may make a difference—and maybe there’s an outside chance that the odd asset might be seized or something might be done with this—and we will support it, for me, personally, unless we drop the threshold on this bill, it’s not even worth the paper that it’s actually written on. I think that history will show that it’s not just this bill; it’s previous bills. We will continue to work to try and get the threshold lowered in this bill. I’d encourage my colleagues on the select committee—and the member from Hawke’s Bay to continue to try and lobby her colleagues to get the threshold lowered on this bill and to give her local police the tools that they really need to start dealing to the gangs. Thank you, Madam Speaker.

Kia ora, Madam Speaker. Let’s now return a little bit of logic over the somewhat unfocused emotion we’ve heard this evening. For those watching in the House—and there are some people who do watch the House—this is one of two bills that we’re bringing forward tonight which gives the police and the authorities more power to sort organised crime. So the one we’re going to do next is around things like boy racers and bad behaviour by gangs on the road.

But the first one that we’re talking about now, which is the pigeon pair with that, is about taking the money from the gangs, controlling gang activity by taking away their profits. What it does is three things: it gives new powers to target associates of organised criminal gangs so that when they try to keep their profits safe by giving them to a friend or a family member, we can go after that money and if that associate cannot show where it came from, we get it; we have a part of the bill also that allows us to chase those people when they try to run overseas; and we also have—and I think this is quite useful—one which stops them hiding it in their KiwiSaver account.

Now, very briefly, the member opposite—Mark Mitchell—has been arguing that we should reduce the threshold for chasing assets below $30,000. What I’d point out to the House is that that $30,000 threshold is in line with the original legislation, which put it in, which—guess what!—was passed by the National Government.

💬 Hon Andrew Little: Who put it in?

Thank you, Madam Speaker. Oh, it would be the National Government, Mr Little. It would be the National Government. My goodness. But apparently that wasn’t worth the paper it was written on, Mr Mitchell.

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! Order! Jan Logie.

Thank you, Madam Speaker. I rise on behalf of the Green Party to oppose the Criminal Proceeds (Recovery) Amendment Bill.

💬 Hon David Bennett: Oh, seriously?

Yeah, definitely. We’ve heard certain takes on what this bill will do—another way of looking at it. We’ve heard some respect for that alternative view expressed by Labour members—or a Labour member—so I want to outline that here. So what it does is it reverses the onus of proof from the police to show that someone has committed a crime and that the proceeds being seized are connected to that crime, on to the person targeted to show their money or assets are not proceeds of crime. Generally, this is a concept of law that’s frowned upon, for obvious reasons, about the effort that’s required to prove that you purchased something and you didn’t commit a crime—that’s quite a tough thing to go through. It also takes away the requirement to have a specific crime alleged at all. So what is being alleged is mere association or that the assets are tainted by gang involvement, and that is pretty much a pretty incredible derivation away from our criminal law standards that protect people against unfair State or police sanction without proof.

We’ve heard that, through the Justice Committee, the definition of “associate” has been tightened so that it can be more than a mere acquaintance. As somebody who lives in a street with a lot of Mongrel Mob members, I guess I should be grateful that that’s been tightened. But the fact is that family and friends of these gang members—which will include members in this House—will still be potential targets of this legislation because there will be people in this House who have family members who are involved in gangs, because they are in our communities right across this country and have been for a long time.

I want to mention, too, just in terms of the reflection and some of the rhetoric, particularly from the previous National member, Mark Mitchell, around gangs, is just—I can’t put aside the conversation I was hearing from the gangs at the royal commission over the last few weeks about what brought them into the gangs.

💬 Hon David Bennett: Oh gosh—drug dealing and prostitution.

What brought them into the gangs was their experience of abuse in State institutions—of being alienated from their families and abused sexually, physically, and emotionally in the supposed care of the State. So they got to a point where they did not trust the State or have any interest in society, because they had been so deeply hurt from it. Now, we look at this piece of legislation that will target the friends and family who will now potentially be open to having their goods taken away from them because of their association and their family membership with somebody in a gang. The proof will be on them to prove that they got that property through legitimate means, and that will impose significant burdens, including attendance at court, the costs of legal representation, the risks of cost orders and inquiries into their finances, and being the subject of search and examination orders because they have a family member or a friend who is in a gang.

This is right throughout our country—there will be members in the House who that could happen to. Except, we all think we’re protected from it because we’ve got status. And that’s actually probably right because, as I think the section 7 report stated, “Given the prominence of gangs within some Māori communities, there is a more than fanciful risk that community, work, iwi, or whānau-based associations in which gang members also participate, may be used to establish an association with a member of an organised criminal group for the purposes of starting investigations. Whanaungatanga obligations mean that Māori may be particularly likely to engage in association with whānau who have gang affiliations. This may place them at greater risk of being subject to these orders unjustifiably, or because of police bias.” That police bias—they’re working on it but it’s well established, and we are creating more grounds for the extension of that bias. The Green Party will not support that.

Thank you, Mr Speaker. I stand on behalf of the ACT Party in support of the Criminal Proceeds (Recovery) Amendment Bill. I note that there were five submissions received, three that gave oral evidence. There was plenty of time for the gangs to put submissions in and appear in front of the Justice Committee. We received advice from the Ministry of Justice, and that was great advice as well, because this is actually quite a complex bill that we worked our way through—trying to understand it, how it affected different people and their families were very well nutted out through the select committee process.

I’d like to take this opportunity to actually point out and thank Vanushi Walters, Arena Williams, and also Chris Penk, who asked a whole lot of questions on matters that I wasn’t sure if I was even understanding the answers, but they managed to pull it all together so that as a select committee we could move forward and support this bill, even though I do support National’s stance in that it does not go far enough.

The bill amends the Criminal Proceeds (Recovery) Act 2009, and, at the introduction of our select committee report, there is a paragraph which I found I had to keep going back to when the scenarios that we were bandying about were being played out within the committee. It reads, in the introduction: “It seeks to prevent individuals from profiting from significant criminal activity by improving New Zealand’s civil forfeiture regime. In particular … by targeting the illicit profits of leaders and facilitators of organised crime and transnational offending.” I will keep coming back to aspects of that statement throughout this speech. The purpose of this bill is to legislatively allow the creation of new restraining and forfeiture orders by way of expanding when these orders can be applied for and granted. This is in response to the influx of profiteering from significant criminal activity.

We break the regime for the creation of these assets forfeiture orders into two types; they are defined as type 1 and type 2 assets forfeiture orders. Type 1 will relate to organised criminal groups who structure their affairs to avoid the existing restraining and asset forfeiture orders. The court will be able to make a restraining order against specific property if it’s satisfied that (1) the person who has the order against them is an associate of a member of an organised criminal group, like a gang, or is a participant in that group; (2) that the person has property but can’t explain how they could afford that property—for example, for valuation purposes, we discussed how the value of that property would be achieved and whether it will be at reasonable market value rather than current market value. This is because what was potentially legitimately purchased 20 years ago may have a different value now, but the respondent will still need to prove that they purchased it 20 years ago and could afford to do so when they did.

The third one is that at the time the application for the assets forfeiture is made, the value of the questionably obtained property exceeds the current threshold of $30,000. The specific property can be presumed to be tainted if the respondent does not comply with the disclosure of source order, or lies about how it is obtained. There is an onus of proof here. The courts need to be shown that the above criteria have been met; the respondent will need to prove that the purchase was valid and not because of ill-gotten gains from significant criminal activity. It is also outlined that when making an order is not in the interests of justice, they must not. An example of this, which we discussed at select committee, is where essential items like beds, fridges, washing machines, ovens—they can’t be forfeited. The key here is that, firstly, the accumulated value must reach $30,000, and, secondly, it must have come about from partaking in significant criminal activity.

This would mean that being raided and found with a tinny of marijuana would not mean that the assets in the house are forfeited, but being raided and being found with a couple of pounds of marijuana, a new Harley-Davidson outside, and the latest Chev Corvette in the garage, while on the dole, happens to hang out with the local organised crime group, and hasn’t complied with the disclosure of source order—well, they are likely to have asset seizure forfeiture orders placed upon them.

I would like to point out at this stage that my bill which went through the House looking to change the threshold, meaning that finding an illegally held firearm was the new threshold to seize these assets, was turned down by the Labour Government. It could have actually helped in the scenario of asset seizure and stopping significant criminal activity. So I just would like to put that in there.

Type 2 asset forfeiture orders must have the same criteria met as type 1. That is, that a person is a member or an associate of an organised criminal group, they can’t explain their assets based on their income, and that the value of questionably obtained property exceeds $30,000. If this criteria is also met, then the forfeiture order must be made on specific property, excluding the value that can be explained by the respondent’s legitimate property.

The same conditions apply as for type 1, whereby if the respondent can prove the ownership is legit, then an order must not be made, nor should it be made where it is not in the interests of justice to do so—an example is: taking the run-down 1980s car off a single mum of four. A scenario for specific property and convertible property and amounts for forfeiture is, say, where a home is legitimately owned and sold for $600,000, and that $600,000 profit is used to purchase a $1 million home. The house is now paid in full. Now, the $600,000 of the $1 million price can be accounted for, but the other $400,000 cannot. The asset forfeiture order can take the $400,000, but must ensure that the $600,000 remains with the respondent. In clause 5, we’ve inserted new section 5B(2A) to more clearly define what is “convertible property”, and we inserted new section 5B(3) to better explain the exempt proportion of that specific property forfeiture.

To restrain the property, the Commissioner of Police would need to satisfy the court that there are reasonable grounds to believe that the property is tainted, and, once forfeited, the presumption of police needs to be proven either for or against them for the assets seizure order to be made. It is important that presumption is used only at the forfeiture stage, not during the restraint stage, because to do so could prematurely taint the illegitimate and legitimate purchases before all evidence can be acquired. The committee wanted to change the bill to reflect this and have done so by amending the presumption requirements at section 24A. Because of these changes we have made, we no longer believe that the due diligence clauses are required in section 24A, because presumption removed from the restraint stage has removed it from that clause.

The bill will also make a requirement that will allow the courts to presume the property is tainted, which means it’s derived from significant criminal activity. If a person who lives overseas but has property here in New Zealand cannot provide information about how that asset was legitimately purchased, they have two months in which to disclose that information. We make it clear that non-compliance causes a presumption of tainted property and therefore it can be seized.

It will also allow for KiwiSaver schemes to be able to be forfeited just like other superannuation schemes are able to. Currently, our KiwiSaver legislation says that no one can withdraw their KiwiSaver unless they’ve reached retirement age. However, the changes that we have made will allow where money has been hidden in KiwiSaver accounts to be forfeited by the Government upon seizure application or seizure orders by police. It won’t be the entire KiwiSaver amount; it will be the amount that cannot be justified as being in there.

There’s a whole lot of things that we’ve changed in here that we’ve spoken to that ACT will support, but we could have gone further. We most certainly could have introduced a firearms piece in there where we could have forfeiture based on that illegal possession. Thank you.

Tēnā koe, Mr Speaker. I could not have given the House a better summation of the consideration that the Justice Committee gave to this bill and the operation of this bill than the member Nicole McKee just did. I think that reflects, around the committee table, just how invested every single member of that committee was in the goal to make sure that people cannot and should not profit from crime, and that when they do, there are serious consequences. This is a Government that is invested in that goal, that is giving itself new tools to crack down on organised crime and to be able to target what is going on in gangs.

I just wanted to touch on how the committee process has arrived at so many technical changes. This was the most technical consideration of a bill that I have ever had to do in my parliamentary career, and, along with the Criminal Activity Intervention Legislation Bill—which this House will consider next—it required the most delicate balancing of rights with this goal that everyone in the committee room shared to make sure that this crime was going to be punished and was restricting people from engaging in this kind of profiteering off the backs of misery in people’s lives that organised crime causes. We were all united in that goal.

My reflection on the committee process was that we needed every member in that room to engage in the discussion. I thank the Green member for her very thoughtful contribution tonight. Jan Logie, I listened to your speech really carefully, and I think you have highlighted what was just so difficult about the values proposition in this bill, and it’s something that the committee’s really spent time to engage on and discuss around the room. Select committees work best when we are able to do that. These were issues that we could all grapple with, and we all have values that we come to the committee room about. I thank those members who, no matter what colour, engaged in those values.

I was disappointed and I was heckling Mr Mitchell during his speech because in committee he did not introduce the concerns that he spoke to the House tonight. It’s in committee that we need to have those debates. The police did not submit to the Justice Committee. They did not make the arguments that Mr Mitchell said the police made. He recited from the Police Association submission to the Justice Committee, which I know well and which I considered myself.

And so that is why, on this side of the House, we are comfortable with the values position. In the select committee report, we said that we recommend all amendments unanimously, and I can say to the House that we did agree that unanimously.

I feel like I’m going to get in the way of a debate between two colleagues, so let me start positively and end with a couple of quick thoughts and critiques. First and foremost, as has been noted, this has been unanimously agreed by the House, but I think it would also be wrong—sorry, apologies; it has been unanimously agreed by the members of the Justice Committee that it should proceed here to second reading, and we’ll see tonight where the vote goes. But unanimity on the select committee doesn’t mean that we all agree with it 100 percent, and, look, I don’t want to presume for other members in the House, but certainly on this side, there’s a feeling that we could have done better. But it’s also really important to put on the record that we’re not going to get in the way of what this is doing.

I think this will do some good. This will go some way to addressing the problems we are facing, particularly, but not exclusively, around gangs and their activities. If you’re in the likes of my electorate, you see these gang members parading down the streets, unabashed, unashamed, often riding exceptionally loud motorcycles—that look very nice, I might add. But they’re exceptionally loud, and there’s, basically, no way in God’s good creation that they could afford this—they or their associates—and that is a presumption on my part; it’s a stereotype on my part, and I’m happy to admit that. But the great thing about this bill, and what’s positive, is that where there are gang connections, gang associations, or any criminal association, actually, the police are able, through court processes, to not just take a presumption, like someone like myself has, but to actually prove that these are, effectively, ill-gotten gains.

Yes, it does change the presumption of proof. That’s quite a significant move for this House; our legal tradition is relatively clear that the Crown has to make a solid case. You’re sort of innocent till proven guilty, and this does begin to change that a bit. I’ll defer to lawyers. I’m not one myself, as I keep telling the House—

💬 Sam Uffindell: That’s good!

—but it is changing. It is a good thing, not—well, actually, that could put me into further trouble—thank you, Mr Uffindell—than I’m probably already in.

The presumption of innocence is fairly important, but on the balance of probabilities—and it’s what Arena Williams and others have touched on. The committee worked exceptionally hard on this, and some of the public may not believe it, but, actually, it was a lot of discussion and a lot of debate, trying to get into the technicalities to make sure there are enough checks and balances. But I think most Kiwis, regardless of their political colours, do know that we have a major problem with crime, an ongoing problem with crime, and one that you could argue is getting worse. Gangs in particular—again, not exclusively—are flaunting their wealth, and we do need mechanisms to address this.

I want to take up one point that Jan Logie, I think, kindly brought to the discussion here, and that’s the nature of those in gangs. I think many of them are—to use a very trite phrase—victims, but I would just make the appeal in this House that there’s always a difference between reasons and excuses. There are reasons people join gangs and there are reasons why people commit terrible behaviours. But to me, personally, that’s not an excuse for those behaviours, and it would be a longer discussion—you know, we also have to address their needs. But this, tonight, says that if you are, effectively, getting ill-gotten gains, you’re going to have to try and prove that, and, as I say, to most Kiwis, I think that makes sense. If someone is living in an exceptionally beautiful house with multiple motorcycles and cars and all this, and it doesn’t fit the rest of their profile, we should be able to look into that.

But for my last two points, one is to echo what Nicole McKee said about the place of firearms. If they are to be found—and I’m simplifying—it should automatically trigger this. The other point is to pick up on Mark Mitchell’s point around the thresholds. Personally, I do think it should be lower, and it’s my hope that as we progress as a Parliament, we might see fit to amend this amendment bill in the future to make sure no one can slip through the gaps. That’s one of my small concerns: that ways around this will be found with a $30,000 threshold. But, with that, I commend this bill to the House.

Tēnā koe e te Mana Whakawā. It pleases me to take a short call on the second reading of the Criminal Proceeds (Recovery) Amendment Bill.

It is critical that we keep our communities safe and break the cycle of offending, including addressing the root cause of crime. I want to reiterate what the bill does. Fundamentally—and I’m emphasising “fundamentally”—it is to improve the law’s effectiveness at restraining and forfeiting property derived from significant criminal activity. At a local level, we can see what this does—like, for example, property belonging to criminals when one sees the name of a gang entity plastered on the fence or on a building. Simply put, it allows targeting of associates of original criminal groups and restraining property; it means criminals living overseas will lose those assets through court orders; it means amending technical gaps; it means eliminating a potential for criminals to hide funds in KiwiSaver.

These amendments are significant and a much-needed change to the status quo. I thank those who support the bill. I want to thank, also, the select committee for getting this across the line to the second reading, and everyone who has made a submission to the bill. Kia ora.

Thank you, thank you. I rise in support of the Criminal Proceeds (Recovery) Amendment bill in its second reading. First of all, I would also like to acknowledge everybody who made a submission on this bill, as well as my colleagues on the Justice Committee for all their mahi. I have only recently joined the select committee, so I wasn’t part of the work done on this particular bill, but I am looking forward to being part of this hard-working team chaired by the awesome Vanushi Walters. I’ve learnt a lot, actually, about this bill from previous speakers. Nicole McKee, obviously, explained quite a lot of the complexities around this bill. The committee did a good job in working its way around all of those challenges and bringing it back to the House after careful consideration.

Together with the Criminal Activity Intervention Legislation Bill, which will come up tonight as well, the measures in this bill will also hit gangs where it hurts most: their profits. In 2020, we campaigned on working harder and smarter to keep our communities safe, break the cycle of offending, and tackle the root causes of crime, and that, across a range of areas, is exactly what we’re doing. So that will mean that not only will we have more front-line police than ever before but they will also have greater powers to hit the gangs where it hurts.

Now, I had a constituent come into my office the other day, and they said, very eloquently, “National speaks loudly about being tough on crime, while actually being quite useless.” National talk quite a big game—we’ve heard it tonight from Mr Mitchell—when they’re in Opposition, but in Government they failed to deliver. They couldn’t deliver firearms prohibition orders in nine years, despite multiple attempts, but we have. And, during the Nats’ last time in office, they ran down the police with their funding cuts and insufficient staffing, and they closed down community stations. They like to forget about that, but, in 2015, roughly 30 police community stations were closed—including the one in Ōrewa; Mr Mitchell, I believe you were around at that time, and you didn’t manage to keep it open. But this Government is committed to provide the police the tools they need to tackle organised crime, and, therefore, I commend the bill to the House.

Thank you very much, Mr Speaker. At this, the second reading, it’s traditional for members to reflect on the discussions at select committee. I wasn’t a participant in those, but I’ve listened carefully, obviously, to the debate tonight from those who were, and obviously I’ve read the select committee report as well as the legislation itself. So I come to the subject as an outsider, at least to some extent, but having been involved in some discussions at a very early stage—thanks to the diligence of the Minister of Justice approaching members of National and, I think, other parties as well, separately—I’m at least somewhat familiar with the content.

I do want to test some of the content of the law against some pretty fundamental legal principles. I think it’s a discipline that we should engage in whether in formal terms of the New Zealand Bill of Rights Act (NZ BORA) or even just in a more general kind of way. So that’s something for you to look forward to, Mr Speaker. But, first, just a reflection that there’s always a danger when we make law that isn’t 100 percent certain that we allow more discretion—whether that’s the activities of the police, prosecutorial discretion, and of course the judge’s decision making. Where there is potential for discretion, there’s potential, too, for a lack of equality before the law, and I think our colleague from the Green Party articulated that well, and my colleague and friend Simon O’Connor has acknowledged that.

I think we don’t need to use the term “prejudice” in an ugly way to understand that there is always potential for human beings in applying what we might hope and believe to be black-letter law in a way that is not consistent across all districts or in all circumstances. So I suppose that’s a reminder to all of us, including myself, just to always be mindful of the problems of definition that arise the moment one starts talking about “associates”, for example, of organised criminal groups, as opposed to “members”—and even that concept, of course, can be somewhat fluid.

In terms of the fundamental human rights that we’ve talked about, the presumption of guilt has been referenced by other members in the House and, of course, as, again, my colleague and friend Simon O’Connor articulated, it’s usually the case in the law that we would presume that a person is innocent of a crime or offence unless and until they can be proven to have committed it to the relevant standard and also to be tried in court or, in NZ BORA terms, to be present at their own trial, and, interestingly—and I was pleased that the Justice Committee touched on this aspect—the right or the privilege against self-incrimination.

So whereas one would ordinarily have the right to remain silent about one’s circumstances—and perhaps be judged in the court of law accordingly if one did not speak in one’s own defence, and conclusions might be able to be drawn from that—in this law we see, and I’ll get into the detail as much as time allows, that there is a presumption or rather, effectively, a prohibition on remaining silent to the extent that, for some people, failing to provide evidence of legitimate activity or commerce as the basis for property acquisition could result in its confiscation. So that’s, I think, quite interesting from a legal point of view and something that we can examine, take note of, and notwithstanding that, we might support the policy objective such that we ultimately do support the bill. It is nevertheless something we should take seriously.

Of course, the New Zealand Bill of Rights Act doesn’t take into account or doesn’t even seek to protect all rights. Property rights, for example, mostly are not protected by that. It’s inevitable that any even quite high-level law doesn’t take account of all rights—so I make that comment not either as a criticism or an attempt at originality or claim to be original in that matter, but, of course, unreasonable rights against search and seizure are a category of right that we would ordinarily recognise as worthy of protection, and, to some extent, those rights or equivalent rights are engaged by this.

Finally, of course, it’s worth thinking about freedom of association. So to the extent that we might unwittingly capture those who are merely associated with gang members—just to use that shorthand—as opposed to those who are associated with the criminal organisation itself or, again, to be more specific, its criminal activity. There is a danger, of course, to the extent that we merely penalise association, that we’re in danger of infringing that which we would ordinarily regard as, you know, sacrosanct, in terms of a person’s right or ability to move freely about society and so forth.

The way that the order can be made for specific property to be confiscated, effectively, there are three main elements and I think it’s worth going through those each in turn because they do give rise to the detail of the way that we should understand how this law will operate. Of course, it’s an amendment to an existing law so it’s worth acknowledging that this is not an entirely new concept but a refinement.

So, first of all, the respondent—the person who’s the subject of the possible recovery of the so-called criminal proceeds—is an “associate” or a “member of” or a “participant in” an organised criminal group. We’ve talked a little bit about the problem of definition as to who or what an associate might be and, of course, the obvious counterpoint to that comment I made earlier about not wanting to impinge on people’s right to freedom of association is that if the person who is truly the owner of the asset or, in having, you know, obtained those in an illegitimate way merely seeks to hide the fact that that ownership, by passing it in name only to a family member, for example, then that’s something we should be alive to. So, of course, that’s the reason that the law enables the associate of the criminal organisation to be captured by it as well.

Of course, we also have an element regarding the legitimate property and the insufficiency of that which the person holds legitimately. That needs to be subtracted, in effect, to what their assets are as a matter of evidence, to decide if the person is likely to have been able to obtain the other property legitimately or not. We’ve heard a bit about the threshold of the $30,000—my colleague and friend Mark Mitchell has spoken about that. I’m not well qualified to talk about that, not having participated in the select committee process but I think it’s been reasonably well covered by the House.

The “interests of justice”: that’s a phrase that is some sort of backstop provision, I guess, whereby the legislation says that the court must not make a forfeiture order if it wouldn’t be in the interest of justice to do so. So a bit of a safety net there. Again, it’s very vague, it’s very broad, and that’s intended to be helpful in protecting rights but, of course, the more discretion that’s allowed, of course the more possibility that the law will be applied unevenly. So, again, it’s a balancing act.

Looking at the way that the law actually works, we see that there’s—well, actually, I’ll pass now to the status of self-incriminating statements and, of course, it’s worth thinking about the fact that if a person is asked to justify how or why they obtained a particular bit of property, and the reason they need to do that is to prove that, effectively, it wasn’t the proceeds of crime, then we’re asking them to put themselves in a position possibly of saying that they did in fact conduct a crime or commit a crime in order to get that property illegitimately.

So we’re quite close, at that point, to breaching that usual privilege against self-incrimination. I think it’s just about justifiable in the sense that we say, “Well, actually you’re not incriminating yourself by admitting to have committed the crime in a way that could see you convicted of that crime.” And the reason for that, quite particularly, is that clause 39 has a new section—165A—which says that if you make an incriminating statement against yourself, your own interests, while complying with the disclosure of source order, then that can’t be used in most civil or criminal proceedings. So the detail that goes under that is that self-incriminating statements can only be used for civil proceedings about an application for a type 1 assets forfeiture order. We don’t have time or probably the will of the House to go into the detail of that but suffice to say there’s a bit of detail that goes into the way that self-incriminating statements can be used and, effectively, it’s for the purpose of this Act only. It’s for the purpose of determining whether an asset was gained legitimately or not, and, of course, that’s because we have that lower bar in terms of the onus of proof—the reversal of the onus of proof—and the presumption of innocence to the extent that it does.

So with those thoughts, I join others on this side of the House—and, indeed, across the House, it seems—in commending the bill to the House but with these gnarly issues needing our serious attention as we go through further from here.

Kia orana, Mr Speaker. Thank you. It’s a pleasure to rise and take the final call this evening on the Criminal Proceeds (Recovery) Amendment Bill. It seems, to me, that this is a bill that will improve the effectiveness of the law, in either restraining or forfeiting—or perhaps both—property that is acquired by way of significant criminal activity.

I also want to acknowledge the work of the Justice Committee. Many members have referred to the technical changes that have been recommended by that select committee, one of which, actually—and I take Mr Penk’s point, perhaps not to delve too much into the detail—is of note: the official assignee could continue to hold seized assets beyond a 28-day period in circumstances where a court might be considering an application relating to whether or not it should grant a restraining order. That, on face value, makes sense in terms of time. If that’s one particular technical change that a select committee does, it does point to a body of work that the committee has done that makes it a much more relevant piece of legislation, which, of course, is what we ask of our select committees.

With choices around significant criminal activity come consequences. That is clearly a good thing. I commend this bill to the House.