Penk ChrisCHRIS PENK (National—Kaipara ki Mahurangi): Thank you very much Mr Speaker. At this the second reading it's traditional for members to reflect on the discussions at select committee. I wasn't a participant in those but I've listened carefully obviously to the debate tonight from those who were and obviously I've read the select committee report as well as the legislation itself. So I come to the subject as an outsider at least to some extent but having been involved in some discussions at a very early stage—thanks to the diligence of the Minister of Justice approaching members of National and I think other parties as well separately—I'm at least somewhat familiar with the content.I do want to test some of the content of the law against some pretty fundamental legal principles. I think it's a discipline that we should engage in whether in formal terms of the New Zealand Bill of Rights Act (NZ BORA) or even just in a more general kind of way. So that's something for you to look forward to Mr Speaker. But first just a reflection that there's always a danger when we make law that isn't 100 percent certain that we allow more discretion—whether that's the activities of the police prosecutorial discretion and of course the judge's decision making. Where there is potential for discretion there's potential too for a lack of equality before the law and I think our colleague from the Green Party articulated that well and my colleague and friend Simon O'Connor has acknowledged that. I think we don't need to use the term prejudice" in an ugly way to understand that there is always potential for human beings in applying what we might hope and believe to be black-letter law in a way that is not consistent across all districts or in all circumstances. So I suppose that's a reminder to all of us including myself just to always be mindful of the problems of definition that arise the moment one starts talking about "associates" for example of organised criminal groups as opposed to "members"—and even that concept of course can be somewhat fluid.In terms of the fundamental human rights that we've talked about the presumption of guilt has been referenced by other members in the House and of course as again my colleague and friend Simon O'Connor articulated it's usually the case in the law that we would presume that a person is innocent of a crime or offence unless and until they can be proven to have committed it to the relevant standard and also to be tried in court or in NZ BORA terms to be present at their own trial and interestingly—and I was pleased that the Justice Committee touched on this aspect—the right or the privilege against self-incrimination. So whereas one would ordinarily have the right to remain silent about one's circumstances—and perhaps be judged in the court of law accordingly if one did not speak in one's own defence and conclusions might be able to be drawn from that—in this law we see and I'll get into the detail as much as time allows that there is a presumption or rather effectively a prohibition on remaining silent to the extent that for some people failing to provide evidence of legitimate activity or commerce as the basis for property acquisition could result in its confiscation. So that's I think quite interesting from a legal point of view and something that we can examine take note of and notwithstanding that we might support the policy objective such that we ultimately do support the bill. It is nevertheless something we should take seriously. Of course the New Zealand Bill of Rights Act doesn't take into account or doesn't even seek to protect all rights. Property rights for example mostly are not protected by that. It's inevitable that any even quite high-level law doesn't take account of all rights—so I make that comment not either as a criticism or an attempt at originality or claim to be original in that matter but of course unreasonable rights against search and seizure are a category of right that we would ordinarily recognise as worthy of protection and to some extent those rights or equivalent rights are engaged by this. Finally of course it's worth thinking about freedom of association. So to the extent that we might unwittingly capture those who are merely associated with gang members—just to use that shorthand—as opposed to those who are associated with the criminal organisation itself or again to be more specific its criminal activity. There is a danger of course to the extent that we merely penalise association that we're in danger of infringing that which we would ordinarily regard as you know sacrosanct in terms of a person's right or ability to move freely about society and so forth.The way that the order can be made for specific property to be confiscated effectively there are three main elements and I think it's worth going through those each in turn because they do give rise to the detail of the way that we should understand how this law will operate. Of course it's an amendment to an existing law so it's worth acknowledging that this is not an entirely new concept but a refinement. So first of all the respondent—the person who's the subject of the possible recovery of the so-called criminal proceeds—is an "associate" or a "member of" or a "participant in" an organised criminal group. We've talked a little bit about the problem of definition as to who or what an associate might be and of course the obvious counterpoint to that comment I made earlier about not wanting to impinge on people's right to freedom of association is that if the person who is truly the owner of the asset or in having you know obtained those in an illegitimate way merely seeks to hide the fact that that ownership by passing it in name only to a family member for example then that's something we should be alive to. So of course that's the reason that the law enables the associate of the criminal organisation to be captured by it as well. Of course we also have an element regarding the legitimate property and the insufficiency of that which the person holds legitimately. That needs to be subtracted in effect to what their assets are as a matter of evidence to decide if the person is likely to have been able to obtain the other property legitimately or not. We've heard a bit about the threshold of the $30000—my colleague and friend Mark Mitchell has spoken about that. I'm not well qualified to talk about that not having participated in the select committee process but I think it's been reasonably well covered by the House.The "interests of justice": that's a phrase that is some sort of backstop provision I guess whereby the legislation says that the court must not make a forfeiture order if it wouldn't be in the interest of justice to do so. So a bit of a safety net there. Again it's very vague it's very broad and that's intended to be helpful in protecting rights but of course the more discretion that's allowed of course the more possibility that the law will be applied unevenly. So again it's a balancing act. Looking at the way that the law actually works we see that there's—well actually I'll pass now to the status of self-incriminating statements and of course it's worth thinking about the fact that if a person is asked to justify how or why they obtained a particular bit of property and the reason they need to do that is to prove that effectively it wasn't the proceeds of crime then we're asking them to put themselves in a position possibly of saying that they did in fact conduct a crime or commit a crime in order to get that property illegitimately. So we're quite close at that point to breaching that usual privilege against self-incrimination. I think it's just about justifiable in the sense that we say "Well actually you're not incriminating yourself by admitting to have committed the crime in a way that could see you convicted of that crime." And the reason for that quite particularly is that clause 39 has a new section—165A—which says that if you make an incriminating statement against yourself your own interests while complying with the disclosure of source order then that can't be used in most civil or criminal proceedings. So the detail that goes under that is that self-incriminating statements can only be used for civil proceedings about an application for a type 1 assets forfeiture order. We don't have time or probably the will of the House to go into the detail of that but suffice to say there's a bit of detail that goes into the way that self-incriminating statements can be used and effectively it's for the purpose of this Act only. It's for the purpose of determining whether an asset was gained legitimately or not and of course that's because we have that lower bar in terms of the onus of proof—the reversal of the onus of proof—and the presumption of innocence to the extent that it does. So with those thoughts I join others on this side of the House—and indeed across the House it seems—in commending the bill to the House but with these gnarly issues needing our serious attention as we go through further from here."