Criminal Activity Intervention Legislation Bill

The question is that Parts 1 to 5 and clauses 1 and 2 stand part.

Thank you, Madam Chair. Can I also just acknowledge your extension to the role for this week as well—congratulations, kia orana, kia manuia to you, Madam Chair.

CHAIRPERSON (Hon Poto Williams): Kia orana.

I just have a couple of questions for the Minister that he may wish to respond to when he gets a chance. They relate to two components: the first is around the expansion of police power to seize and impound vehicles, and as I understand it, the bill amends the Land Transport Act (LTA) to include some new offences of dangerous and reckless driving and that the mandatory 28-day impoundment power exists. So my question to the Minister is: I assume that that is consistent with other provisions of like offending within the LTA, so a response around whether there are levels of comfort around that. And the other is, I guess, more of a wholesale definition of the word “cash” when there is the introduction of a new “cash seizure power” for police where they can seize and hold cash where it’s found in suspicious circumstances. My question for the Minister is around the importance of defining “cash” within the legislation so that it’s captured alongside other assets. So I’d be interested when he gets an opportunity to perhaps provide a response to those two questions.

Thank you, Madam Chair. Look, it’s our pleasure to stand and take a call on this Criminal Activity Intervention Legislation Bill and support the bill. I think that one of the things that there’s been quite a bit of discussion in this Chamber about is the ability for police to be able to execute those search warrants on a home that they think may be associated with gang activity, particularly those that are involving firearms.

It sort of goes back to, if I can use the example in South Auckland, where we had 23 drive-by shootings that were generated over a dispute over a gang patch, and one gang taking offence at the way this gang patch was procured or treated by another gang, which led to a totally unacceptable situation where we had 23 drive-by shootings. How we avoided a tragedy of a member of the public being seriously hurt or killed—I don’t know how we did that; we obviously had the luck of the Irish on our side there, but it was luck that we all strongly felt was going to run out. So a big part of this bill is being able to give our police officers the tools that they need to be able to take action and address that.

I see that we have our officials in the Chamber. Can I please acknowledge all of you for the work that you have done. There were some very robust discussions had and some tricky questions put by the Justice Committee. The way that you responded to that and the work that you did was first class. So I want to thank and acknowledge all of you for your work.

I know that my colleague across the Chamber has already raised an issue that he’d like the Minister to respond to. But, I guess, if I was going to ask the Minister in the chair to address anything, it would quite simply be to go over the safeguards that we believe are strong enough in this bill to ensure that we don’t have an outcome that we don’t want—that is, quite simply, armed police officers entering a home of an innocent family or homeowner, because having armed police officers enter a home, in itself, can be quite traumatic, especially in a home where they actually aren’t involved in any illegal gang activity, drive-by shootings, or the procurement or possession of firearms. So if the Minister can take a call and maybe talk to those safeguards. Thank you.

Thank you, Madam Chair. I’ll take two questions at a time and I think we will be able to get a good, coherent discussion on this legislation. So, on behalf of the Minister of Justice, just responding to Mr Utikere’s questions, first of all in relation to the power to seize vehicles and the mandatory 28-day seizure: the bill provides for a constable who’s been satisfied that particular offences have been committed—and I’ll come to those in a minute—and it is mandatory for the police to then arrange the seizure of the particular vehicle. The offences that the bill adds as the basis for that seizure now include dangerous driving, reckless driving, and careless driving without injury or death. This is because we’ve seen this increase in pretty poor driving practices often used to intimidate other road users when some of these individuals are together in their vehicles or on their motorbikes. So we needed to both broaden the ability to exercise the seizure power, but actually to send a pretty firm message that if you do this and you’re caught, you’re going to lose your vehicle—no ifs, buts, or maybes.

The second question that the member raises is about cash and what constitutes cash. Very helpfully, my colleague the Minister of Justice has ensured that there is in the drafting of the bill a definition of cash, which draws on other legislation. In fact, one has to refer to section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. And since it’s been about 22 months since I’ve been Minister of Justice and I had all the justice legislation committed to memory, I don’t have a record of that particular provision, except that it adequately defines what money is and it also includes, in addition to what’s provided for in that legislation, gold bars and gold ingots. So these are a source of value, obviously, and can be used and exchanged as well. It’s interesting, and I think members might want to—without getting into an academic exercise—compare the definition of cash with the new section 67A provided for in clause 27 of the bill, which relates to the prohibition of certain cash transactions. And there there’s reference to jewellery, watches, gold, silver, and other precious metals. So I think this is a good attempt at making sure instruments and objects of value that can be used to launder are properly captured.

The member the Hon Mark Mitchell raises a question about safeguards, particularly when it comes to powers of entry to households. The member is, of course, right—and he is a man of experience in this area who no doubt will have executed a number of search warrants in his time in the police force—that carried out in certain ways, this can be a very intimidating exercise. Sometimes the subjects of warrants behave in a way that it’s difficult to avoid what might otherwise look like intimidatory sort of activity. But I can say to the member that I’m confident that under the scrutiny that the bill has received, the provisions relating to the applications for warrants or searches where judges have to be satisfied of a number of factual grounds before a warrant can be issued and therefore obviously executed are very clear.

So looking at the new section 17D, which is provided for in clause 20 of the bill, makes it very clear about what judges have to consider when they’re looking at the content of an application for a warrant. The content is specified in new section 18C, also in clause 20. But the issues that the judge has to apprise him or herself of are very clearly laid out in that new section 18D, and I’m confident that that requires a number of safeguards. And the final sort of safeguard is if a judge is a little bit concerned, a judge can require a warrant report to understand what is being seized under the warrant and how it’s been executed. I think that provides a transparency safeguard that we haven’t seen before.

Madam Chair, I would be appreciative if the Minister could have a look at clause 5 of the bill. Now, actually before I begin, I do also want to say it’s lovely to see you, Madam Chair, in your, albeit temporary, ascension to this new role.

I have a background as a prosecutor, as the Minister is aware. I’m also a defence counsel’s daughter, and was brought up on stories of inappropriate searches, so I note my colleague Mr Mitchell’s comments across there about the overreach that can occur with police powers being misused, and sitting between those two stools, one familial and one professional, it’s always an interesting balance.

But the particular issue I’m interested in is in new section 308A. For those watching, this is the new offence of discharging a firearm with the intention to intimidate. Now, as the Minister will be aware, we already have in the Crimes Act 1961, section 198, which is the discharge of a firearm or doing of a dangerous act with intent. Now, this makes a 14-year maximum penalty for those who, “with intent to do grievous bodily harm”, discharge a firearm. But here we have the change to a person who “commits an offence who discharges a firearm intending to intimidate 1 or more persons.” Now, I do note to the Minister that, of course, the penalty is significantly lesser. It is under 308A(2), “A person who is convicted of an offence under subsection (1)”—which is the substantive section that I referred to—“is liable to a term of imprisonment not exceeding 5 years.”

So, obviously, as my colleague Mr Mitchell alluded to earlier, we have a situation where we have behaviour happening in the community, and we over this side of the House have a very different perspective as to the roots of that behaviour, why these things have happened, why we have this rise in antisocial behaviour—as opposed to our friends across the House. But it is important that we give police powers to deal with bad behaviour. It is important that those powers be proportionate. I think that it is of interest and it is relevant, if the Minister would talk to the difference in the standard there: the intent to intimidate as opposed to the intent to commit grievous bodily harm. Because obviously what we’re talking about, in my perspective as a member of the Justice Committee who worked through this bill, is those situations where someone does a drive-by, fires out the window, and is intending to put fear into people, but is not in fact caught by section 198. Now, that’s my understanding of where this comes into. It is to curb that reckless, appalling behaviour, but where the intent does not actually exist to cause grievous bodily harm.

So, you know, I would be very keen to hear the Minister talk about that because I think there is a—it behoves us not to go creating crimes willy-nilly. We don’t need to load the statute book with more that are not actually going to be relevant and important. I think that’s a principle of which my father would be quite keen. It behoves us to make sure that when we do create a new penalty, it has the appropriate sentence there. I think that this is something that will get used, and I would like to hear a bit more about why it was felt to be important to do, and why it was felt to be proportionate. That is my question.

I’m very happy to respond to the discursive comments by my colleague Dr Emily Henderson just now, and I think I can reassure the member, and indeed I can reassure the whole House, that as Cabinet very carefully considered these provisions, we considered that the current provisions of the law, the Crimes Act and the Arms Act. Indeed—so the Arms Act has a provision that if somebody basically uses a firearm in an improper sort of way, discharges the firearm without reasonable excuse in or near a dwelling house, then there is a penalty for that as a crime associated with it, and it focuses on the misuse of the firearm. The penalty for that is up to six months’ imprisonment or a fine not exceeding $10,000.

Obviously, we also considered section 308 of the Crimes Act, as the member has adumbrated in her comments as well. Section 308 focuses on discharging a firearm in a dwelling, and then there’s other crimes that relate to a clear intent to cause harm to somebody or if somebody driving by and recklessly firing without aiming at anybody in particular and doing so in a public place—that is not covered by the law as it is at the moment. So we needed a law that meant that if one of these goons carries on in their vendetta, or whatever is motivating them to drive around shooting a firearm, they are in a public place and they’re firing aimlessly or directionlessly but with an obvious intention to cause fear or some intimidation, then we have a law that captures that. And using a firearm in that way—and for some of these people, of course, they don’t wish to cause injury; they just wish to cause a sense of fear. That is arguably a lesser moral wrong than somebody who is using a firearm to deliberately try to cause injury or death or cause harm to or within a household or a dwelling.

So it’s for that reason that, having gone through that iterative process and that deductive process and that very close analysis of existing law—the circumstances in which this law might be used—we settled on a penalty that is less than the penalty for discharging a firearm with a view to causing harm, but is more than discharging a firearm without reasonable excuse in a dwelling. That falls at the low end of the moral opprobrium spectrum and we need the penalties in the law to reflect the appropriate point on the moral opprobrium spectrum, which leads us to this particular penalty here.

We know that, as the member has indicated—she wonders whether I think that this will be used. I am confident that it will be. I think our colleague Mr Mitchell alluded in his earlier comments to the number of antisocial behaviours and drive-by shootings that are happening involving firearms. There’s a level of incidence now that is a cause for concern, ought to have the attention of this House, and ought to lead to appropriate adjustments in our criminal legislation. This does that and I think will have a very meaningful effect to both disincentivise that behaviour but, if the behaviour happens, then there is a recourse for it.

Thank you, Madam Chair, and I acknowledge Minister Little in the chair beside you this evening. Minister, I’m cognisant—and we will be all the more so cognisant—that tomorrow is the anniversary of the Christchurch mosque shootings, where 49 people were killed. Minister, speaking to, and in responding to, my colleague across the Chamber, in relation to clause 5 but also the proposed amendment, section 308, around threatening acts, this is, essentially, to do with what could be deemed to be drive-by shootings. I reflect on, back in Whanganui a number of years ago, a little girl who was a family member, Jhia Te Tua, a baby who was killed as a result of a drive-by gang shooting.

Minister, I didn’t sit on the select committee. My colleagues the Hon Mark Mitchell; I believe, Simon O’Connor; and also the Hon Paul Goldsmith did; and my colleague Christopher Penk and I are tasked with the duty to address some matters here in the committee of the whole House. Following on from my colleague, in relation to section 308, “Threatening acts”, I’m particularly interested in the discussion around section 198 and the difference in the tariff—the sentence to be imposed—and the determination to be made by the court in relation to that upon sentencing. But this section 308, “Threatening acts in relation to dwellinghouses and persons in dwellinghouses”, to be replaced by section 308(b), with “by threatening behaviour, alarms or attempts to alarm any person in a dwellinghouse.”

Minister, would you, please, be able to give context in terms of the following section to be inserted around the discharging of firearm to intimidate—what that threatening act or behaviour or alarm in relation to dwellinghouses and persons in dwellinghouses would be which would be different to matters such as assaults or other such criminal impositions on the persons in the dwellinghouse.

Debate interrupted.