Flavell Te Ururoa: Criminal Proceeds (Recovery) Bill — Second Reading 
Flavell Te Ururoa: Criminal Proceeds (Recovery) Bill — Second Reading 
[Volume:652;Page:1379] 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Tena koe Mr Deputy Speaker. Kia ora tatou i te Whare. It is one of those ironies that we are here tonight considering the Criminal Proceeds (Recovery) Bill legislation to radically reform the existing regime relating to criminal proceeds and recovery while a funding crisis is confronting the 27 community law centres. What does that have to do with criminal proceeds? It is very simple. The bill vests the recovery body and the police with the powers to target people and confiscate property under suspicion. There is that element of discretion and flexibility. 
This time last week we were in the midst of a debate about new tougher and leaner measures to control gangs. I spoke then about the pitfalls of discretion—the dangers of institutional bias racism and prejudice—and about the disproportionate toll on Maori. But here we go again. This bill introduces changes whereby the confiscation of property can now occur without a prior conviction. Instead of a single criminal standard of proof—the “beyond reasonable doubt” standard—there will be a new civil standard of proof based on the balance of probabilities. That is a much weaker test. In a nutshell the New Zealand Police will have greater powers. There will be a far lower standard regarding the need for evidence. 
To compound matters further even more issues will come out of the fact that a 44 percent funding cut is to affect the Coalition of Community Law Centres of Aotearoa. We know that legal aid funding is already woefully inadequate and cannot cover the full cost of preparation that lawyers might reasonably expect to put into these sorts of cases. The immediate impact of the recession is that it is likely to significantly affect the free services that are currently available potentially forcing some centres to close. That from our perspective would be a tragedy. So once again the Maori Party is coming to this House and putting out the call to ensure that whanau hapu iwi and all New Zealanders can continue to have due access to justice. The question for us is how we can be sure that Maori will gain access to the quality legal advice and representation that will be needed. 
The Dunedin Community Law Centre I understand said in its submission that the bill will be used primarily to target petty criminals and it is in that light that we are concerned that the criminal law protections for defendants will be reduced by the lower civil law standards. We have concerns about who may be targeted about innocent parties and about the adequacy of legal aid and legal funding and we are concerned about the breach of human rights such as the breach of minimum trial rights: the presumption of innocence until one is proven to be guilty. 
 We absolutely agree with the submission from the Human Rights Commission that measures must be put in place to deter criminal activity. The question is whether the extreme measures proposed in this bill are the only means of achieving these changes. The challenge that the Human Rights Commission lays down is one that I think the House must give consideration to. Is it worth sacrificing the principles of justice to recover criminal assets? In other words does the end justify the means? 
The Maori Party cannot by any stretch of the imagination accept that it is acceptable for any legislation to be inconsistent with our international commitments and human rights laws which this legislation is. Let no one in this House forget that New Zealand as an international State faces the shame of having breached a raft of international treaties in the enactment of the foreshore and seabed legislation. Let no one in this House forget that the trauma of Operation Eight resulting from the attack in the Ureweras during 2008 drew international condemnation for the way in which it universally stigmatised the people of the Tuhoe nation as terrorists. Let no one in this House forget that only four countries in the world voted against the United Nations Declaration on the Rights of Indigenous Peoples—a declaration affecting over 350 million indigenous peoples globally. 
We have a chance to put things right regarding that declaration. The Maori Party is aware that both Australia and the United States have already indicated a willingness to reconsider their negative vote against the declaration and with a new Government in place here a Government that is committed to mana maintenance and enhancement we are in a strong position to live up to our international commitments to demonstrate leadership in acknowledging the human rights of indigenous people and to adopt that declaration. But in the meantime while that process is in flow we must not as a Parliament continue to sit by and allow the fundamental principles of justice to be blatantly disregarded. A couple of barristers who attended the select committee namely Rob Weir and Dr Donald Stevens were quite clear that the bill breaches the entitlement under the New Zealand Bill of Rights Act to a fair hearing and that needs to be noted. 
There is one very significant issue that we will want to raise at the Committee stage. It is the issue concerning the right to appeal forfeiture order decisions. We believe there is inadequate provision for people to be able to appeal forfeiture order decisions. The bill will confiscate property from persons engaging in or profiting from “significant criminal activity” via forfeiture orders. The new measures introduced in the bill propose that confiscation of property or the assessed value of criminal proceeds can occur without a prior conviction. Where this becomes a particular threat for many of the constituents that I have is that for example a whanau could potentially lose their ancestral land if another person has been growing cannabis on their farm without their consent or knowledge. We are therefore of the view that in the bill there should be some specific exclusion of Maori customary land Maori freehold land Maori freehold land declared to be general land pursuant to section 6 in Part I of the Maori Affairs Amendment Act 1967 and any lands returned to iwi under deeds and settlement legislation. We are very concerned about any threat to our whenua so we will be providing a Supplementary Order Paper that addresses our concerns. 
We are very concerned about the potential for huge unfairness with the precarious nature of the civil balance of probabilities test and in particular with there being no opportunities for a fair review of the decision. We are concerned that those accused may be unable to properly defend themselves. We are concerned that this bill may see New Zealand breach its international obligations regarding the right to legal representation in the International Covenant on Civil and Political Rights to which New Zealand is a party. We are concerned about the breach of a number of human rights and freedoms contained in the New Zealand Bill of Rights Act 1990 including the right to be secure against unreasonable search and seizure. We are also concerned about the possibility of double jeopardy as mentioned by my colleague Metiria Turei and about the fact that the bill is incompatible with a human rights approach to the development of policy. 
There is one glimmer of hope embedded in the bill. It is the fact that the bill may provide an opportunity to introduce a liability for casino and pokie-machine operators when profiting from the criminal offending of their customers. At present even when problem gamblers are convicted of theft or fraud there is no ability to recover the moneys from gambling operators. However although we as a party are totally committed to eliminating the social hazard that we recognise in gambling that one issue simply is not sufficient to be able to turn our minds away from the human rights breaches and infringements that are associated with this bill. Having regard to that I say the Maori Party will not support this bill.