Criminal Activity Intervention Legislation Bill

Members, the House is in committee on the Criminal Activity Intervention Legislation Bill. When the committee reported progress, we were considering the question that Parts 1 to 5 and clauses 1 and 2 stand part.

Thank you very much, Madam Chair, for the opportunity to resume the debate. I think that all the parties in the Chamber are on board with the aims of the legislation; others can speak for themselves, obviously—ultimately—as to whether they wish to support it or not. From the National side of things, we’ve made it clear that we do support the aims of the legislation, but, nevertheless, we have been interested to know that the limitations that are imposed on “criminal activity” are reasonable in their scope and the way they would be exercised. So the Minister in the chair earlier—the Hon Andrew Little—talked in terms of safeguards, and he provided a number of different examples of the way that the legislation was designed to avoid overreach by the police and others who effectively would carry out the policy on behalf of the State.

And, actually, I just do mention in passing, as my colleague and friend the Hon Mark Mitchell has done—and perhaps others too—our gratitude to the New Zealand Police force for the difficult and dangerous work that they do. We are grateful to those who have advised the Justice Committee—of which I was a member, I think as a substitute—and certainly, colleagues had the benefit of their advice throughout this process. So, the safeguards that the Minister was talking about—and no doubt his ministerial colleague the Hon Kiritapu Allan will be equally diligent in that regard and respond to any questions we might have.

In my case, I wish to just really point out a safeguard within a safeguard, which is to say the search warrant regime that’s set out in Part 3 of the bill. I mean, if anyone’s looking particularly—it’s clause 20, and its new section 18C, as it will be within the legislation; it talks about the content of the application. So the safeguard that Mr Little was talking about earlier was an application for a search warrant. And, of course, a search warrant is the mechanism by which we can require that those who would be conducting a search do so in a reasonable way, as well as the fact of the search being reasonable in the first place.

So the protection within that that I was quite interested in relates to the grounds on which the application was made, but also the names of any persons other than persons who are gang members of the gang referred to in paragraph (e), whose places and vehicles are proposed to be entered and searched. Because, of course, if a person who owns a place or a vehicle will be subject to a search and they themselves are not particularly intended or expected to be exposed in any sort of criminal activity kind of a way, then that’s something that we should be interested in. But, of course, it might be that a person who has nefarious intentions might have their activity bound up in those places and vehicles none the less.

So if we think about the freedom of association—and in a previous bit of legislation today we were talking about whether “associates” of criminals should be subject to the same strictures or similar restrictions. Well, that’s reasonable to the extent that we don’t want criminal proceeds to be hidden effectively in the name of a family member or whatever. In this case, it’s slightly different, but it’s still that question of freedom of association, because here we’re trying to understand how we can ensure that the policy aim of deterring or detecting criminal activity is met, notwithstanding that it might be on the property—the place or the vehicle—of someone who isn’t actually themselves any kind of wrongdoer. So that’s something that I know that the select committee was careful to avoid having more broadly prescribed than necessary; although I do note a sensible drafting change that they made along the way—no doubt on the advice of officials—whereby it’s the addresses or descriptions of the places proposed to be entered or searched. And, of course, it might be that a physical street address isn’t known, but a warrant application shouldn’t fail only for that reason. If a reasonable description could be made in the application for a warrant, then then it should be good enough, and the Chamber, no doubt, will accept that change and continue to pass the bill.

I’ve got only one or two other comments—perhaps, as the end of a five-minute block is ticking over, I’ll resume my seat. Others might have some other comments, including, of course, the Minister herself.

Look, I’ll just briefly respond. In response to the query from the member, at Subpart 6A in what will be the new clause, 18C(1)(h), the purpose of that particular provision, it’s really to focus on where—if a place is to be searched, or it isn’t owned or occupied, or used by a member of an organised criminal organisation, but instead by a person who is encouraging or assisting with the conflict. So, for example, somebody who might be supplying weapons within that vicinity, and that person must be specified in the warrant. There’s some analysis that’s been done, particularly in light of the Privacy Commissioner’s submission in the departmental report as well, around pages 11 and 12, at paragraph 72 which help elucidate some more of the official thinking there.

Thank you, Madam Chair. Minister, I’m going to move to Part 3, at clause 23, where we introduce a new section 160A, relating to the disposal of weapons. It talks about seizing weapons and I guess “weapons” can be all sorts of things. They can be bats, they can be knives, they might even be cars, and quite frequently they’re often illegally held firearms.

This clause talks about the destruction of weapons. It addresses the consent to destruction, and gives the ability for the actual owner of a weapon—whether that be a car, a knife, or a firearm—to apply within 30 days of a destruction notice for that weapon to be released rather than destroyed. The bill goes on at subsection 2—especially at 160A(2)(c)(ii)—that police will decide if there is a legitimate reason to own and possess, and ultimately whether that weapon will be destroyed.

When I spoke to the police at the Justice Committee and I queried about stolen firearms being returned to their legitimate owners, the police indicated that they would automatically check if the firearm has been stolen, and would return that stolen item to its owner. Now, the owner may not realise that their stolen firearm has actually been retrieved and seized by police, so therefore won’t know that they have 30 days in which to apply for the destruction notice to not be valid.

The police have said that they will make all attempts to find the legitimate owner of a firearm, and I’m presuming also of any other weapons that are being seized—perhaps, you know, the car is used as a weapon—and that they would, at that time, ensure that the firearm in this case would be given back to the owner. So I just want to clarify that that is indeed what will happen, and that the section 160A(2)(c)(ii), where police will decide if there’s a legitimate reason to own and possess, is not needed for a firearm owner if they were in legitimate possession when it was stolen at that time.

My concern, Minister, is the potential for police to find a legitimate firearm but then decide that, actually, they don’t want that legitimate owner to possess that firearm. So just seeking clarification, please, that should an illegally held firearm be found and it’s later found that it has been stolen, it will not be destroyed if police can, with due diligence, ensure that the rightful owner receives their firearm back. Thank you.

Thank you to the member Nicole McKee. I know that this is a particular area of interest, given your life prior to your membership of this House, and so these are very legitimate concerns for you and your constituents. I think one of the things that gives me some heart, or, I guess, the safeguard that’s hard-wired into the legislation is there at clause 23, which inserts new section 160A(2)(b). The police must undertake reasonable inquiries to ensure that they can locate the rightful owner, then there is that process by which they go through.

But I think probably getting into the issue that we’re all most intimately concerned about here is that the purpose of this legislation is to ensure that firearms aren’t in the hands of the people whom we all collectively probably agree, in this Chamber, they just shouldn’t be in the hands of. We only need to recall what happened up there in South Auckland towards the end of last year when there was that particular heightened conflict. Firearms—stolen firearms, to the most extent—were the key contributor to undermining public safety in quite a significant way. So the target of this legislation is the unlawful possession of firearms that should never have been in the hands of those that are holding them in the first instance.

Thank you, Minister, for answering that. I just now would like to move very quickly to new sections 18E an 18G. Again, just seeking clarification for the viewers that are at home: 18E is about places and vehicles that may be searched on more than one occasion. Minister, if you could, please, confirm that this actually relates not to one single warrant being actioned on one person multiple times, but one single warrant being actioned on multiple people, hopefully at the same time. That’s just for clarification for those people at home. What this actually means is that one warrant may be produced at the time that they are undertaking a search and seizure on one property, but that same warrant is also being produced at other properties at the same time. That’s what that section 18E means.

Further, a clarification to new section 18G, which is that the judge may require a warrant report. This is about a judge actually asking the police to, really, give them back some information as to whether or not the warrant was successful in how it was addressed. But, actually, it comes down to a judge “may” warrant this. So I’d like to know, Minister, should the judge actually ask for that information? Who is collecting that information? Will it be made publicly available so that we can ascertain that the clauses within this bill are being effective correctly? Thank you.

So to the first inquiry, just on the way that new section 18E will operate and function, in effect, it’s a blanket warrant for a period of time that applies to a particular area that can be exercised in one or multiple instances all done under that one warrant. So it’s a confirmation as to your understanding of the way in which that warrant operates.

As to whether or not a judge may require a report, I think there’s probably a couple of factors going on there. I think there will be a period of time where—you know, you’ve got to understand the way in which, are these warrants working as intended? So giving the court the ability to make a call-in report as to where these warrants have been put in place. I guess it provides another check and balance for New Zealanders, because, as we talked about earlier this evening, that rub between upholding the rule of law and making sure that people aren’t undertaking unlawful activities, creating public harm, and undermining public safety versus, I guess, the undermining of freedom of movement and being able to operate freely. This is a part of the many safeguards that I think you see hardwired into this Act to make sure that the State doesn’t overreach in the use of these warrants and must be accountable.

In terms of who will hold that information, it’s the court. The court will hold that information. Now, there’s a range of ways in which that information can ultimately become public, i.e., court proceeding are, by and large, open proceedings—unless there are particularly circumstances, thresholds have to be met, etc., but the beginning presumption is that hearings are opening, they’re public, they’re accessible, and they’re transparent.

Thank you, Madam Chair. To the Minister in the chair, Kiritapu Allan, I understand that—I don’t know if I can refer to this; you can correct me if I’m wrong, Madam Chair, but when Minister Andrew Little was in the chair, he raised an issue that I wish to raise with him. I’m aware that the Minister may not have been in the House and may not have heard what he was talking about, but it related to new section 308A, “Discharging [a] firearm to intimidate”. The argument that he put up is that it’s a lesser charge, it’s not going to be considered quite as seriously as someone that takes a firearm with the intent of harming, shooting, or killing someone. But I’m just interested to really understand the rationale behind that, because we know that if a gang member has got, especially, a high-powered rifle or firearm and their intent is to take that firearm and use it to shoot into a dwellinghouse, then there is a very high chance that someone is going to be seriously hurt or killed with the use of that firearm. It may not even be the intended victim or the intended person that they’re actually trying to threaten or intimidate. The current charge comes with a maximum sentence of five years’ imprisonment. I’m just wondering what the rationale was behind the fact that this wasn’t treated in the same way as someone that picks up a firearm and takes it with the intent of killing or injuring someone.

At the end of the day, you’ve got the actus reus, you’ve got the mens rea. The mens rea, obviously, is forming the intent and the idea in terms of what you’re going to do and what you intend to happen, and, really, although you could put up an argument and say—and we’ve created this argument, of course, for a defence lawyer—that it was never the intent to hurt anyone or kill anyone; quite simply, the intent was just to intimidate or threaten, but, to me, that’s a bit of a nonsense, because if you take a high-powered, military-style rifle and you start shooting into homes, those rounds can pass through not one home but they can pass through two or three homes. So you must have formed the belief, you must have known, that your actions or the results of your actions could’ve resulted in the serious injury or death of people inside that dwelling or even the dwelling next door. So I’m just interested to know: what was the rationale in terms of not going and not recognising and not saying that, actually, this is going to be treated in exactly the same way as if a gang member actually picked up a firearm with the intent of going and shooting someone?

Look, thank you to the member for raising this issue, because it’s one of a matter of distinction, right? So this here, so where you can clearly show that somebody has the mens rea, and then the actus reus, that they’ve followed through and I have the intent of killing you and therefore I’ve gone out and tried to kill you—there are charges that exist for that. This here is to capture a whole suite of incidents that we saw, particularly last year—and it might have been prior to that; forgive my ignorance. But that was certainly the time when I was in office, and you had people with weapons shooting them at homes—not necessarily at people, but into homes or past homes in probably quite an intimidatory way.

When we looked at the suite of the offences to which they might be liable, I mean it was absolutely paltry the charge that came with—it was like a $10,000 fine in particular circumstances. So first we had to lift that up, where if I’m driving past you and do a drive-by—you know, let you know that you should be in danger. I might not be trying to kill you at this point, but bang, bang past your house or over your house. We wanted to introduce an appropriate offence to respond to that type of activity. That said, where there is evidence to support that it was intended to be more malicious than that, we would expect that the police officers would charge them with the appropriate offence for those circumstances.

Thank you very much, Madam Chair. Just at the tail end of the bill, as we approach the tail end of the evening: seizure of cash found in suspicious circumstances. So this is the part of the law that will say that someone can’t have dealings in a very large—a suspiciously large—amount of cash, and with all the implications that has for money laundering and, in fact, the Anti-Money Laundering and Countering Financing of Terrorism Act is the bit of legislation it’ll be changing or amending. I’m just interested, to really help put on the record, actually, what the Minister and the Government intends by having the prohibition on certain cash transactions. This is new section 67A, as it will be within the Act, in clause 27. So this is saying a person who is in trade, basically, can’t buy or sell a number of different items if the cash amount received for that would be at a certain level that would be too high. So, first of all, we’ve got a list, and it has jewellery, watches, and then gold, silver, or other precious metals; diamonds, sapphires, or other precious stones; motor vehicles—as defined another piece of legislation—or ships, which is, again, as defined in another piece of legislation.

So if the Minister casts her mind back to law school, she’ll remember the principles of statutory interpretation—I’m probably getting a few reactions around the room as I take people back to those days. Harete Hipango is trying to avoid my eye and, indeed, her own past, not in the sense of any of this kind of activity, I hasten to add, but just in terms of having studied these principles. Anyway, so it’s important when we list things that we understand—or rather that courts will understand—just how broad the legislature intended to be. So I think I’m right in saying that the intent is to really capture as many different kinds of cash or cash-equivalent transactions in that space. So if the Minister is able to confirm, whether that’s tonight or not, that would be helpful.

Then the other comment, I guess, was just in the amount that’s being talked about. So we’re making an offence of receiving the cash. This is not the person who’s obtained it by some other illegitimate method, so it’s quite a serious matter, because we’re saying people can’t even unknowingly be party to allowing money or cash to launder the results, or the proceeds of crime.

There’s a cash seizure threshold—tongue-twister, as it is—and it’s set out to be NZ$10,000 or equivalent cash amount, which is about a shopping trolley’s worth of groceries at the moment. Buying fresh fruit and veggies—anyway, that’s another subject for another day: #CostOfLivingCrisis.

So we’ve got $10,000, and then a bit later on it says, “Oh, by the way, that can be amended by regulation to be more or less than $10,000.” So, basically, it can be any amount by regulation. That’s a bit “Henry VIII” clause-ish, but perhaps there’s a good reason for that. I suppose it’s to guard against inflation, or perhaps the likely nature of the offending and the items that might be traded in this kind of way.

So any comments the Minister can make from that to help set the record straight for any further possible uses of the legislation would be very helpful indeed. Thank you.

Members, the time has come for me to report progress.

Progress to be reported.

House resumed.

Madam Speaker, the committee has considered the Criminal Activity Intervention Legislation Bill and reports progress. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The House stands adjourned until 2 p.m. tomorrow. Pō mārie.

The House adjourned at 9.59 p.m.