Penk ChrisCHRIS PENK (National—Kaipara ki Mahurangi): Thank you Madam Speaker. It's been a really interesting bill actually. I think we've had a lot of good discussion if I may say at the various stages including at the Justice Committee and about the select committee proceedings—and of course the focus of that was the second reading but I think some of the points that were made by submitters have rightly been raised by those contributing in this the third and final reading.The rights issues I think—as always—should be taken seriously and for what it's worth I commend the Greens for bringing to the attention of the House some of the ruleof-law issues that we have. But I think it's actually worth analysing what's being done in the bill quite precisely before we get too far down the track of determining whether the onus of proof—the presumption of innocence right—is engaged. I just do want to speak to that partly because I think it's the most important aspect of the bill for those who are concerned with civil liberties. There's also freedom of association but that I'll get on to if I may should time permit.But the most important thing in terms of understanding people's rights and responsibilities too in relation to the criminal proceeds forfeiture and seizure is the idea that things might be taken from them and might be presumed to be gained as a result of illicit activity and of course the general rule in the criminal law—and I emphasise the criminal law—is that there's an onus on proof whereby if a thing is said against a person that they've done a thing that's wrong that needs to be proved against them positively. In the absence of that then it's presumed that they didn't do that thing and that they are innocent and of course that's a very longstanding tradition and more than a convention—in fact it's an ultimate requirement of our criminal justice system.But I think it's worth drawing the distinction between what we have here which is presuming that people are in certain circumstances that might indicate the likelihood of property having been obtained in an illegal manner on the one hand versus being presumed to have conducted an illegal act to have gained it. So actually what we're doing is establishing a two-stage process where the goods can be seized on the basis of that presumption—it's the other way round—and then of course there's an opportunity for proof to be made that indeed notwithstanding the starting point of illegality nevertheless the person had a right to own that significant asset of property by fair means and not foul.The other aspect that the Green Party member Golriz Ghahraman touched on in discussing this burden of proof is the standard of proof so that's how sure we have to be to make a determination. Whereas in the criminal law to decide that a person's done a thing wrong that could result in them having their liberty deprived from them you need to be certain beyond reasonable doubt—I don't mean you Madam Speaker. Although you're as close to a judge as one can get without being a judge I suppose in a way so I should be careful what I say shouldn't I? Even as a speaker I should be careful what I say so it kind of works the other way. But you have great judgment Madam Speaker but not necessarily in that sense without an e" the first "e"—anyway. So anyway I'll keep moving—ASSISTANT SPEAKER (Hon Jacqui Dean): If the member could stop digging and just come right back. CHRIS PENK: Thank you—I was getting close to digging my way out of the hole. Anyway the Green member rightly pointed out that we're operating on the balance of probabilities. So she said "Well whether it's likely or not" and that's shorthand I suppose for 50 percent likelihood or slightly more than 50 percent that the property was ill-gotten gains—just to use the vernacular. But of course we're not talking about a standard of proof by which they might be convicted of having conducted the crime; it's actually about making it unattractive to have operated in a way that's generally illegal ending up with the assets and not being able to prove that they were gained lawfully. So I think that's all able to be squared with our consciences as good lawmakers. In any case the policy considerations are very strong so I suppose that even if one decided that the New Zealand Bill of Rights Act minimum standard of criminal procedure were engaged such that a person could be determined to be guilty despite their right to be presumed innocent nevertheless there'd be a strong argument for it being a justified limitation.There's sort of a related point actually that I don't know that I had a chance to mention at previous readings and others might have and if so that's commendable. But just to be sure I do want to place on record the work that the select committee did in relation to the status of self-incriminating statements. So it's well-known even by people who don't particularly claim to be au fait with the law that you have the right to remain silent and in the context of making a statement that would indicate that you've done a thing that's wrong or criminal we've got the right all of us—and have had for centuries if we go back far enough—to remain silent and not offer a defence. Of course what's done with that in different quasi-criminal contexts might be interesting in itself but suffice to say the select committee I think did a helpful thing here. I didn't have any part in it but in reading the report it's clear that they've turned their minds to the question about: if a person is required to say where they got some property from then in doing so they have to speak up and they have to explain themselves in a way that could indicate that they had actually done a crime. As I say a starting point in our law is that you don't have to offer a defence in those circumstances and so the select committee in their wisdom—no doubt backed by some excellent advice to encourage those members to come to that conclusion—say that self-incriminating statements can only be used for civil proceedings about an application for type 1 assets forfeiture and so on. In any case the point is that this seizure of assets regime can't lead via the statement someone is required to make about how they got the assets to them being charged with a crime in a way that wouldn't have been possible without that kind of mechanism. I may have gone about that the long way round but I think it's an important thing to put on the record that we don't want people to be forfeiting their rights in that way. We're not requiring that and if it should ever come up in a court situation that it could be said that this legislation is ambiguous in that regard then I would ask the court or the decision maker to bear that in mind.The freedom of association piece was really of course in relation to people who might be an associate of a gang and there might be family members that might otherwise be connected. We heard from Arena Williams I think it was who was talking about this and of course she's right in saying that for policy reasons we don't want people to be able to hide assets by putting them in the name of a family member because that would defeat the purpose of the law which is of course for the person themselves who has conducted the illegal activity or the allegedly illegal activity. But actually in a funny way too that protects the person because if a family member or an associate can't put property in your name and thereby escape the long arm of the law then they're less likely to do that in the first place. So it's a bit counterintuitive perhaps but I think actually it's quite helpful to have a regime where it's known that someone can look past the ownership on paper of an item and go "Actually where did it come from?" and if it really came from illegal activity conducted by person A where maybe it's a member of an organisation be it a gang or other criminal organised group—let's say B—and it ends up in the property of person C then actually it's to the protection of the last-named person that ultimately that asset could be brought back. It's sort of an equivalent of piercing the corporate veil as they say in more of a commercial law context but it's the same kind of principle at least in my mind which is that we're really interested in the true ownership and the true control of an asset. Of course the control of human beings as in a situation where there might be manipulation or there might be a person taken advantage of by a family member or an associate—that's obviously something we want to avoid as well.So for all those reasons I think that's quite an important aspect of the law that associates are protected I would argue in that way. Of course the fact that that's not 100 percent clear in any given case who an associate is and that might be contestable and to the extent there's a lack of certainty in the law that's something that we would ask the courts to determine as carefully as possible. But of course to maximise the flexibility and to meet those policy aims it's important to have at least some lack of definition and that's quite deliberate. It's a feature of the system not a bug albeit of course that that's the trade-off that we make by providing less certainty and more flexibility in the statutes that we pass. So with those reflections adding to those of others who have spoken in support of the bill I reiterate at this the third and final reading that the National Party supports this bill. There are many other things that the Government could do in this space but this is good as far as it goes and we commend it to the House."