Criminal Proceeds Recovery Bill: Third Reading
Rahui Katene; MP for Te Tai Tonga
Thursday 2 April 2009

Amongst the 24 submissions received on this Bill, there was a statement from my electorate of Te Tai Tonga - specifically from the Dunedin Community Law Centre - which made us all sit up.

They raised the concern that there is not adequate provision for people to be able to appeal forfeiture order decisions, so that for example, a farmer could lose their land from another person growing cannabis on their farm without their consent or knowledge.

During the committee stage I addressed a possible scenario located in the whenua that I whakapapa to – Rangitoto – D’Urville Island. I canvassed the possibility that land could be seized under this Bill; sold on the market; and ownership lost – and all done without the original owners being informed.

The Minister presented advice that innocent owners would be able to make application to the Court that the land be not sold.

But this is where the situation turns ugly.

Because of course, once the land is sold, it is too late then to stop the confiscation. Once the land is sold, it is too late for innocent owners to have the chance to go to Court to prevent the sale.

And notably, if these so called innocent owners simply lack the resources to be able to make an application to the Court, or to even pay for a lawyer to get them to base one, what then, js the situation they will find themselves in?

The Maori Party objects in the strongest possible form, to the possibility of designated Maori land being confiscated – land which is inherited through the generations, ancestral land of great significance to the uri of that area.

Under the terms of this Bill, a Profit forfeiture order enforces the seizure of property to a value that represents the profits of significant criminal activity whether committed by that person or another on their behalf.
In plain English, the Court can seize property to the value alleged even if the property itself is lawfully acquired.

It is my deepest fear, that all this will lead to is another round of the confiscation of Maori land.

Mr Speaker, I hasten to suggest that the situation is similar to what happened to so much of our land and so many of our people in the 19th century. That is that if one person in the whanau/hapü wanted to dispose of their interest in Maori land or even make a claim for their interest in the land they would go to the Native Land Court and do so.

However, because all claimants had to present in person before the Native Land Court, if the rest of the whanau/hapü wanted to retain their interest in that land, that is, if they didn’t want their land sold out from under them, they also would have to go to the Native Land Court to uphold their interest in their ancestral land.

And because usually the Native Land Court hearings were held in towns many miles away from the land the whanau/hapü would have to travel days to get there.

Once there they would usually have to wait days, often weeks and many times months for the hearing to be held and completed.

And because they were away from their homes and mahinga kai, they would have to buy food and other supplies. Going into debt to do so.

And because they were away often during the planting season, they were not able to plant for the following season, thereby meaning they would spend that season buying their food.

And going into debt to do so.

So they would have to sell the land they spent so much time and effort trying to save.

And this is exactly what we are expected to do now.

I cannot pretend to this House, that I can sit back, noho puku, and close my eyes to the potential effect that this Bill may have for tangata whenua.
It is an interesting coincidence to me, that the third reading of this Bill follows the second reading, last evening, of the Maori Trustee Amendment Bill.

I would suggest that to keep faith with the statutory objectives in Te Ture Whenua Maori Act, the Maori Trustee should hold the interest for sale to persons within the class of permitted alienees, and failing a sale, to apply the income to the Crown until the amount due has been recovered.

What then, will happen to the liable land interest after that? One proposal is that it should be vested in those persons who were the balance owners immediately after the purchase in question, according to their then shares.

During the passage of the Bill, my colleague, Te Ururoa Flavell presented a supplementary order paper to the effect that the Bill would exclude Maori customary land and Maori freehold land; land that has ceased to be Maori land; land acquired from Maori for public works; Crown land set aside or reserved for use or benefit by Maori; land vested as a consequence of settlement legislation.

Now as the Hansard records, the SOP put forward by my colleague in respect of Māori land, only received the support of the Maori Party and the Green Party when the vote came to be.

The Minister has assured me that he will watch carefully to see how the provision is utilised, and he also gave me an assurance that he will monitor the situation carefully. But summise to say, it remains a hot point of contention for Maori and the Maori Party, and ultimately has lead to us not being able to support this Bill.

A related issue in the detail of the implementation will be to ascertain whether or not multiply owned Maori land could be sold if one of the owners had acquired an interest by criminal means, or had used the land for criminal purpose.

If so, it would be a most serious matter. If such a law was made, with co-ownership of general land in mind – but which would also apply to Maori land, then it would be quite improper for the circumstances affecting Maori land are not the same.

A law that assumes to treat everyone the same, when there is a minority whose circumstances are patently not the same, and who are prejudiced as a result, discriminates against that minority.

This, then, prompts the question of whether that type of discrimination is contrary to the Bill of Rights, an issue we recommend that the Attorney General may need to give due consideration to.

The crux of the issue, Mr Speaker, is the assumption that this Bill is founded on. An assumption that Maori owners will be aware of what is happening to their land and what other owners are doing.

Assumptions that all Maori land owners are living on their land – while we are all aware that many are living away form their whenua; in fact even away from Aotearoa.

I want to raise the issue of the way in which the debate has proceeded in the House.

The major change proposed by this bill is that a criminal conviction would no longer be required for property representing the proceeds of crime or the value of unlawfully derived income to be confiscated.

The assumption is that it will act as a disincentive to criminals and disrupt their capacity to finance further criminal activity.

But there are a number of conflicting issues around this.

The Human Rights Commission told us that the suggestion that the amendment will act as a disincentive, is contrary to evidence from other countries where similar legislation has been introduced

It was their view also, that the Bill offends a number of fundamental principles of justice. The legislation relies on lower civil law standards of proof which undermine criminal law protections for defendants. Civil forfeiture orders could come to take the place of criminal proceedings if the Crown considers it will be difficult to get a successful conviction given the higher standard of proof needed.

And finally, I ask, is it worth sacrificing principles of justice to recover criminal assets?

Or is this Bill simply yet another reaction to the perceived problem of gangs?

Throughout the debate we have heard frequent reference to criminal gangs in reference to the proceeds of their crime. In the main, the gangs that appear to attract the shrill excesses of irrational rage, are those who would be considered to be Maori gangs.

And yet the white collar corporate criminal gangs – the organized gangs such as Bridgecorp or Nathans Finances – are rarely mentioned. And yet it these corporate rogues who have between them, chalked up $633 million of debt to over 21,000 New Zealanders

It raises in my mind questions around the political opportunism so often demonstrated in our society – and I simply ask - for whose benefit?

We will continue to oppose this Bill.

ENDS

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