 | NORML News: Property Seizure 2.0: The Criminal Proceeds (Recovery) Bill |
 NORML NEWS SUMMER 2008. BY CHRIS FOWLIE
The Criminal Proceeds (Recovery) Bill
is a significant erosion of civil liberties
and will almost certainly see the innocent
punished.
It proposes to seize people’s assets even though they have not been convicted of any crime. It
violates fundamental norms of justice,
such as the presumption of innocence and
the prohibition on double jeopardy, and
could also breach the New Zealand Bill of
Rights Act.
The bill has not yet come back from the
Law and Order Committee and so could
still be significantly amended. If passed, the bill would allow
both conviction-based forfeiture and
confiscation which requires no conviction
for property that is said to be the proceeds
of crime or unlawfully derived income.
The same person may be the subject
of criminal prosecution and confiscation
action under the civil process. Those who
are acquitted can still have their assets
seized for unproved and unspecified
crimes. They would not even have to be
prosecuted to have their assets seized.
Furthermore, if they are prosecuted they
could not use their disputed assets to fund
their defence.
In a departure from the accepted norms
of natural justice, people who are targeted
must prove themselves innocent. The bill
allows the government to use an absurdly
low standard of proof - “reasonable
cause to believe” - to seize assets. With
insufficient evidence for a conviction,
police may approach a High Court judge
with a lower standard of proof to seize
assets. Suspects may not even know they
face action and may have no opportunity to
defend themselves.
The bill specifies that “the court may not
allow legal expenses to be paid out of the
restrained property”, denying suspects the
fundamental right to legal representation.
The retrospective provisions in the Bill
made it even more contemptible.
The Proceeds of Crime Act 1991
Under the existing Proceeds of Crime Act
1991, which the new bill would replace,
almost the entire total amount confiscated
has been from cannabis growers.
To seize property the police need only
show that the property has been “tainted”
- they don’t need to prove it was paid for
using drug incomes. Furthermore, they
only need show a civil burden of proof,
i.e. a “balance of probabilities” rather than
the usual proof of “beyond all reasonable
doubt”.
Not only is the new bill repugnant,
the Proceeds of Crime Act 1991 should also
be repealed.
Maori
Maori are at particular risk of having their
ancestral lands taken by the Crown - for
a second time. Many Iwi and Hapu have
only marginal lands left. Faced with little
prospect of farming this land, little hope
of legitimate employment and ongoing
land rates to pay, some have chosen to use
the opportunity cannabis prohibition has
presented them with. Money may not grow
on trees, but it does grow on cannabis plants
that are almost worth their weight in gold.
If they are caught Maori face not only
a harsher average sentence but may have
their ancestral lands confiscated under the
Proceeds of Crimes Act, despite the obvious
fact that the land could not have been paid
for using illicit drug money.
Police corruption
Asset forfeiture laws encourage corruption. There have been several reports of police impropriety in
attempting to seize property including planting evidence and lying under oath.
In one of the biggest sums awarded against
police, in August 1999 Judge Michael
Lance awarded Great Barrier Island man
Colin Moore $54,000 towards the $100,000
he spent defending charges of cultivating
cannabis and fi ghting to keep the family
farm. Police did not photograph the
evidence or give Moore the chance to look
at the plants. They also left out evidence
during the trial. The Police helicopter
was allegedly spotted delivering a load of
cannabis to Mr Moore’s farm. The farm had
been in the family for generations and could
not have been paid for with drug money.
The Judge was scathing of the Proceeds
of Crime Act. “It’s an invasion of personal
privacy,” said Lance. “The legislation needs
some careful attention.”
Even the rather conservative New Zealand
Herald opposed the new bill (27/11/04):
“It’s classically opinion-poll driven
legislation that seeks to wipe out the
rights of people who legitimately own
property by seizing that property on
what’s often no more than a suspicion.
The onus is then on the owner of that
property to prove otherwise. It can be
very hard to prove income was legally
derived without documented evidence.”
The government believes other countries
have been more successful in seizing assets.
However, in seeking to ‘get tough’ on drugs,
they are trampling on all our rights and the
principles of natural justice.
NORML's recommendations:
The Criminal Proceeds (Recovery) bill should
rejected in its current form, and along with the
Proceeds of Crime Act 1991 should be amended to:
> restore the defendant’s right to presumption of
innocence;
> require a criminal burden of proof and conviction
for all property seizures;
> ensure property that is not proved to have been
gained through illegal means is not subject to
seizure, especially family or ancestral property;
> ensure defendant’s right to legal representation,
to know they face proceedings and to mount a
defence, and to not facing “double jeopardy”
through both civil and criminal proceedings.
Next issue: in Part 3 of this series, Auckland lawyer Rob Weir reports on the progress of the bill and any changes made by the Law and Order Select Committee.
More info: see Criminal Proceeds Bill draconian and dangerous
Note: This article is an abridged version of NORML's submission on the bill, given to the Law and Order select committee.
 Share your experiences in the Busted Forum or email your MP with your views on the bill.
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