Power Simon: Criminal Proceeds (Recovery) Bill — In Committee 
Power Simon: Criminal Proceeds (Recovery) Bill — In Committee 
[Volume:652;Page:1821] 
Hon SIMON POWER (Minister of Justice) 
: 
 It is always a good sign when the Hon Clayton Cosgrove and I agree on an issue. I am pleased that this first occasion has arisen after 9½ years. 
Clause 9 relates to one of the areas where the Law and Order Committee made a technical amendment. It was contentious for some submitters. The Legislation Advisory Committee and the Law Society held the position that the Criminal Proceeds (Recovery) Bill was essentially a penal statute and should therefore not apply retrospectively. The Law and Order Committee did not share this view. It considered that the rule against retrospectivity as provided for in the New Zealand Bill of Rights Act the Sentencing Act and the common law did not apply because civil forfeiture is not universally considered to be a penalty and does not increase penalties under New Zealand law. Also the Committee might be interested to know that the bill is not completely retrospective in its application. It is limited to criminal proceeds obtained up to 7 years previously. This period was chosen for consistency with tax law requirements as there is more likely to be a record of a person’s legitimate financial activities over this period. 
I turn to clause 5 and in particular to Supplementary Order Paper 5 which has been offered up by the Maori Party—by Te Ururoa Flavell. It excludes amongst other things Maori customary land and Maori freehold land from the definition of “property” in the bill. The National Government is not in a position to support this Supplementary Order Paper as I indicated to the member earlier. 
Officials advise me of a matter that may help to put to rest the Hon Clayton Cosgrove’s mind as well as the mind of the promoter of the Supplementary Order Paper. The residual rights of innocent parties who are caught up in the forfeiture regime continue to attach to the procedure. This means that if an innocent party who can show an interest in Maori customary land Maori freehold land or the other land indicated on the Supplementary Order Paper makes an application for that land to not be dealt with under the regime—in other words confiscated; well caught by the regime sold and then the proceeds are divided—the court has an option of hearing that application and retaining the land. But the party involved in making the application needs to bring a clean slate to the proceedings—in other words the party cannot be tainted by the criminal activity surrounding that application. As I understand it that is the position. 
 So although the member might have genuine concerns about the multiple-ownership structure of for example Maori customary land or indeed Maori freehold land to an extent—and I am not saying that it is as full as the member would like—there are options for application by parties who hold that status and are innocent in respect of the matter under consideration in the same way as would apply by the discretion of the court if a spouse of someone who was caught under this particular recovery regime was completely innocent or unaware of the criminal activity. Those applications and the capacity to make those applications are available to that party. 
As I understand it the legislation does not run with a “must” but with a “may”. In other words the court retains discretion in this area. But the legislation does mean that not all residual rights that would otherwise be held by an innocent party caught up in the application when that innocent party had no part in the criminal activity are completely lost. I hope that gives the member some assurances.