Katene Rahui: Criminal Proceeds (Recovery) Bill Mutual Assistance in Criminal Matters Amendment Bill Sentencing Amendment Bill — Third Readings 
Katene Rahui: Criminal Proceeds (Recovery) Bill Mutual Assistance in Criminal Matters Amendment Bill Sentencing Amendment Bill — Third Readings 
[Volume:653;Page:2605] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 Amongst the 24 submissions received by the Law and Order Committee on the Criminal Proceeds (Recovery) Bill there was a statement from my electorate of Te Tai Tonga specifically from the Dunedin Community Law Centre that made all the members sit up. The statement raised the concern that there is not adequate provision for people to be able to appeal forfeiture orders or decisions. For example farmers could lose their land if another person grew cannabis on the land without the consent or knowledge of the farmer. 
During the Committee stage I addressed a possible scenario located in the whenua that I whakapapa to—Rangitoto ki te Tonga / D’Urville Island. I canvassed the possibility that land could be seized under this legislation and sold on the market and its ownership lost and all without the original owners being informed. The Minister of Justice presented advice that innocent owners would be able to make application to the court that the land not be sold but unfortunately that is where the situation turns ugly. Once the land is sold it is too late 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. Notably if those innocent owners simply lack the resources to make an application to the court or even to pay for a lawyer to get them to base one what situation do they find themselves in? The Maori Party objects in the strongest possible form to the possibility of designated Maori land being confiscated—land that is inherited through the generations; ancestral land of great significance to the uri of that area. 
Under the terms of this legislation a profit forfeiture order enforces the seizure of property to a value that represents the profits of significant criminal activity whether committed by the owner or another on his or her behalf. In plain English that means that 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 confiscation of Maori land. 
I suggest that this situation is similar to what happened to so much of our land and so many of our people in the 19th century. If one person in the whanau or hapu wanted to dispose of his or her interests in Maori land or even to make a claim for a separate interest in the land that person would go to the Native Land Court. However because all claimants had to be present in person before the Native Land Court if the rest of the whanau or hapu wanted to retain their interest in that land—that is if they did not want the land to be sold out from under them—they also would have to go to the Native Land Court and uphold their interest in their ancestral land. 
The Native Land Court hearings were usually held in towns many miles away from their land block so the whanau or hapu would have to travel days to get there. Once at the hearing they would usually have to wait days—often weeks and in many cases months—for their hearing to be held and completed. They were away from their homes and mahinga kai so they would have to buy food and other supplies going into debt to do so. And because they were often away during the planting season they were not able to plant for the following season therefore having to spend that second season buying their food and going into debt to do so. They would have to sell their land that they spent so much time and effort trying to save. That is exactly what we are expected to do now. I cannot pretend in this House that I can sit back nohopuku and close my eyes to the potential effect that this legislation may have for tangata whenua. 
To me it is an interesting coincidence that the third reading of this legislation follows the second reading just last week 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 alienated people and failing a sale apply the income to the Crown until the amount due has been recovered. What 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 shares at the time. 
During the passage of the Criminal Proceeds (Recovery) Bill my colleague Te Ururoa Flavell presented a Supplementary Order Paper to the effect that the legislation would exclude “Maori customary land and Maori freehold land” “land that has ceased to be Maori land and land acquired from Maori for public works” “Crown land set aside or reserved for use or benefit by Maori … and land vested as a consequence of settlement legislation.” As  
Hansard 
 records when the Supplementary Order Paper put forward by my colleague in respect of Maori land was voted on it received the support of only the Maori Party and the Green Party. 
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 suffice to say it remains a hot point of contention for Maori and the Maori Party and has ultimately led to our not being able to support these bills. 
A related issue in the detail of the implementation will be to ascertain whether multiple-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 purposes. If so it would be a most serious matter. If such a law was made with co-ownership of general land in mind but also applied to Maori land it would be quite improper because the circumstances affecting Maori land are not the same as those affecting other land. A law that assumes it can 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 issue prompts the question of whether that type of discrimination is contrary to the New Zealand Bill of Rights Act—an issue that the Attorney-General may need to give due consideration to. 
The crux of the issue is the assumption upon which this bill is founded—an assumption that Maori owners will be aware of what is happening to their land and of what other owners are doing. It is assumed that all Maori landowners live on their land yet we are all aware that many live away from their whenua and even away from Aotearoa. 
I want to raise the issue of the way in which the debate has proceeded in this House. 
The major change proposed by this legislation 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 this amendment 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 the commission’s 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 that it will be difficult to get a successful conviction given the higher standard of proof needed. 
Finally I ask whether it is worth sacrificing principles of justice to recover criminal assets. Is this bill simply yet another reaction to the perceived problem of gangs? Throughout the debate we have heard frequent reference to criminal gangs and the proceeds of their crime. In the main the gangs that appear to attract the shrill excesses of irrational rage are those that would be considered to be Maori gangs yet the white-collar corporate criminal gangs—the organised gangs such as Bridgecorp and Nathans Finance—are rarely mentioned. These corporate rogues have between them chalked up $633 million of debt to over 21000 New Zealanders. In my mind it raises questions around the political opportunism so often demonstrated in our society and I simply ask for whose benefit it is. We will continue to oppose this legislation.