Adams Amy: Criminal Proceeds (Recovery) Bill — In Committee 
Adams Amy: Criminal Proceeds (Recovery) Bill — In Committee 
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AMY ADAMS (National—Selwyn) 
: 
 I rise to take another call on the Criminal Proceeds (Recovery) Bill because this part really is the teeth of the legislation and it contains a number of important points that are worth commenting on further. Before I speak on Subpart 2 I will endorse the comments just made by my colleague Paul Quinn. He made the point absolutely correctly that it is sensible that the New Zealand Police is the enforcement body that will be looking after this matter. It is the organisation that has the detailed knowledge of criminal activity in this country. It has the best knowledge and understanding of our criminal organisations. Certainly it makes sense that the police can use that knowledge across the board not only in their crime-fighting and law enforcement objectives but also in extending that out to the recovery of the proceeds of crime. So I do endorse what Mr Quinn has said in that regard. 
However what I want to talk about primarily in this call is Subpart 2 of Part 2 which in complement with what my colleague Mr Bridges was talking about in relation to forfeiture orders is the part that deals primarily with restraining orders. This is often where the rubber meets the road in these recovery claims and I think it is worth spending just a few moments on it. 
We see in Subpart 2 the core constraints in relation to applying for restraining orders. We know that not only can the Commissioner of Police apply for restraining orders for specific tainted property but also the prosecutor can do so in respect of a prosecution for an offence that has been committed. That gives us two key aspects and in clause 19 we go through what the order has to set out. 
Clause 22 is titled “Application for restraining order without notice” and anyone who has been around the legal system will understand the importance of being able to bring these sorts of applications without notice. To put it quite simply often we are not playing by Queensberry Rules in these situations. If we give gangs notice that their Harleys will be seized a week from Tuesday my bet is that they will not be there to seize. So it is really important to highlight that provision. These are not people who play by the rules. We have to give the good guys every tool we can to help make these provisions effective and that is what we are talking about here. We are taking policy that we all agree with and giving it more teeth to make it more effective. Clause 22 is a very very important aspect of the proposal. 
Clause 24 lets us know that the court can award that restraining order if it is satisfied there are reasonable grounds—and that is the civil standard of proof coming in there—that the property is tainted. With all of this and the debate that has gone on in the Committee today people who are listening to the debate may start to wonder whether law enforcement is given just too much width. Yes we need to crack down on gangs and crime but the bill also gives considerable weight and I think proper consideration to the checks and balances that need to be put on this sort of order being made. I am very pleased to see in Subpart 2 that a number of the provisions include those sorts of checks and balances. Certainly if I go back to the issuing of the order without notice there are all the usual provisions one would expect to see around that sort of order in terms of timing notification ensuring that the application is suitable and the like. 
We know that when the restraining order is being made the court has the ability to consider a number of factors not least amongst them the reasonable living costs of the respondent and his or her dependants reasonable business expenses the payment of specified debts and the like. So the court does seek to strike a balance when making the restraining order with the fair and reasonable circumstances of not only the respondent but also his or her dependants in debt situations. We do not want to be creating more hardship and more problems for ourselves. So that check and balance is there and it allows the court to give due weight to those factors. 
Another check and balance in this Part is in clause 29 which provides the court with the power to require undertakings for damages or costs. Again that is a very significant legal mechanism by which the bodies that are charged with applying these rules are made to be very careful that they do not overstep the bounds. If they get it wrong there can be considerable cost. That sort of check and balance is an important mechanism to make sure that these powers are not used inappropriately. 
One of the other points I wanted to talk about is the rights of co-owners of property that might be affected by restraining orders and in particular clause 30 of the bill.