No Right Turn: Asset Forfeiture

Last month I ripped into Phil Goff (again) over his plans for a civil forfeiture regime which threatens to apply Ahmed Zaoui standards of evidence to those suspected (or even acquitted) of criminal activity in order to seize their possessions. In response to an article in the Dominion-Post quoting briefing papers which were highly critical of the proposed regime, I submitted an OIA request to gain copies of the relevant advice to the Minister and Cabinet. Today, I got a thick packet of documents in the mail. They make interesting reading, and provide a perfect example of the way policy advice mysteriously transforms from "it's a crock of shit and it stinks" to "this will actively promote growth and vigour". Early papers raise questions of injustice and compliance with fundamental human rights. Somehow, these concerns mysteriously disappear before reaching Cabinet, replaced by the required statement that "the proposals in this paper comply with the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990" - followed immediately by a section redacted as being covered by legal professional privilege (meaning that it likely undermines that statement to some extent).

As an example, the first briefing paper (dated February 18th) starts from the position that an aim of any forfeiture regime must be to minimise unjust confiscations, and notes that:

unjust confiscation may arise not only when an innocent person is wrongly suspected of criminal activity, but when a person involved in criminal activity has lawfully acquired assets confiscated other than as part of a criminal sanction.

It then goes on to raise serious concerns about the lack of safeguards in either the Western Australian or New South Wales legislation. Both use a civil (balance of probabilities) standard of proof, which "by definition... gives rise to the likelihood that a significant number of unjust confiscations will occur". And in both states,

property which has been partly unlawfully acquired must be confiscated in full, even if this would be quite disproportionate to the nature of the offending which gave rise to the unlawful acquisition

(My emphasis).

The second paper (dated March 11th) raises specific concerns with the idea of using civil procedures to punish people for criminal behaviour in the absence of their being convicted of (or even charged with) any crime:

24. Forfeiture without conviction could be regarded as an easier way of penalising criminal conduct without the safeguards or rigour of the ordinary criminal process. Hence, there is a risk that the availability of civil proceedings will create a perverse incentive because of their perceived advantages as to proof, they may divert police resources away from criminal investigations and take priority over criminal prosecutions.

25. A regime that adversely affects the interests of individuals suspected of, but not convicted of criminal offending is inconsistent to some legal commentators with the presumption of innocence and could possibly be seen as contrary to the Bill of Rights. To expose a person who has been found not guilty on criminal charges to the risk of forfeiture of property through civil proceedings on the same evidence may also be viewed as inherently unfair and contrary to double jeopardy principles.

These deep concerns about human rights and fundamental standards of justice simply disappear from subsequent papers, with no details on how (if at all) they were addressed. Instead, the proposals put forward to Cabinet increasingly mirror those previously criticised as unjust and ineffective. While the first proposal taken to Cabinet promises "a higher standard of proof than exists in New South Wales and Western Australia", it is noted in the February briefing paper that "in practice, this may not be different from the way the NSW standard operates" (the difference being that in NSW, cases where defendants can prove their assets were lawfully obtained don't even make it to court). And of course the final paper to the Cabinet Policy Committee (POL (04) 306) states that there are no human rights issues. As far as Cabinet is concerned, the shit that stinks has simply vanished; I guess they just got used to the smell.

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