The Criminal Proceeds (Recovery) Act 2009 What the NZ Council for Civil Liberties Has to Say About it: nzccl.org.nz/content/current-issues/criminal-proceeds-recovery-act-2006 I suggest we ask the NZ Council for Civil Liberties to get involved with the CLR Movement with regard to both the CRA and the MoDA re the right to self determination, freedom of choice and cannabis law reform. Do you agree? Civil liberties The Act rides roughshod over a whole number of civil liberties, including the right to own property, the right of free speech, the right to silence, the right not to incriminate oneself, the use of confidentiality, and the burden of proof. The burden of proof. The law moves the onus of proof from the prosecution (applicant) to the defendant (respondent) – the person whose property is being forfeited needs to prove that it is NOT from the proceeds of crime, or or other defences against the case. The right to own property. Property in the Act is forfeited not as a result of its being acquired through fraud, but because it was either allegedly purchased using profits from the proceeds of crime, or because it was itself used in criminal activity (‘tainted’ property). In other words the owning of the property is legitimate, even though it may have been acquired as a result of criminal activity. Others who have interest in the property need to prove that their interest was not gained through criminal activity, which puts innocent parties in a position of appellants. People can be deemed to have ownership in property even where they do not have an interest, and the property can be forfeit on that basis. The right of free speech. Where there has been a restraining or forfeiture order on their property, the owners of the property are forbidden to mention the fact, except when seeking legal advice. The right to remain silent. The defendants or respondents are required to provide evidence and papers that might incriminate them or others. They can be prosecuted for remaining silent. The use of confidentiality. The Act requires people having confidential information that will help the case for forfeiture to break their confidence and provide information. Abuse of powers Director of Criminal Proceeds Prosecution is an independent government agency not responsible to the Attorney-General or to other law-enforcement agencies. It has little supervision of its activities. It has powers to restrain and confiscate property based not on conviction but on suspicion of criminal wrongdoing. The property may be forfeited even where a criminal conviction fails. To gain information to convince the High Court of the need for forfeiture the Director is able to use powers well beyond those available to other agencies in the pursuit of civil matters, and contrary to the Bill of Rights. These include obtaining warrants, issuing restraining orders, requiring documents, obtaining production orders, issuing examination orders, and requiring other people to assist in obtaining the information. Respondents are put in the position of disproving the case brought by the Director – a position that is particularly unfair and invidious because they do not have available to them the same powers, and the case against them is based not around prosecution but suspicion. The confiscation of property can only take place for criminal activity that, if a prosecution was called, would have carried a maximum sentence of at least five years in jail. This would include most activities covered by the ‘anti-terrorism’ legislation, so that the confiscations could ‘legitimately’ be used to prevent protest and remove from protest organisations the means to protest.
Posted on: Wed, 25 Jun 2014 05:47:45 +0000
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