Monday, March 19, 2007

Asset forfeiture: back from the dead

In 2005, the government introduced its Criminal Proceeds and Instruments Bill, a draconian piece of legislation allowing the seizure of property from suspected criminals without any need for a conviction. The bill was withdrawn before ever receiving a first reading, but now its back, as the Criminal Proceeds (Recovery) Bill.

The core of the bill is unchanged. The aim is still to impose punishment without effective legal safeguards by allowing the government to seize

property that has been acquired as a result of unlawful activity, even though it may not be possible to prove beyond reasonable doubt that the owner has committed a specific criminal offence.

The bill still imposes Ahmed Zaoui standards of evidence, in which mere suspicion is taken as sufficient to impose significant penalties, and it still allows the wealthy to buy their way out of jail. It still requires those targeted to essentially prove themselves innocent of any criminal wrongdoing, and allows the government to use an absurdly low standard of proof - "reasonable cause to believe" to open the door to wide-ranging fishing expeditions in which the defendant is compelled to answer their questions. The only difference is that the new version also contains significant amendments to the Mutual Assistance in Criminal Matters Act 1992 in order to allow New Zealand police to assist and cooperate with the asset seizures from foreign jurisdictions (which, given the corruption and injustice evident in the US system, is something I'm not sure we should be doing).

This bill represents a significant erosion of civil liberties which will almost certainly see the innocent punished. It violates fundamental norms of justice, such as the presumption of innocence and the prohibition on double jeopardy. Unfortunately, given the way parties in this country beat the law and order drum and pander to the "hang 'em high" brigade, we're likely to see more voices demanding that it be made even more draconian than raised in support of justice.


The bill detail seems to have gone 404, perhaps it's a secret. 8]

Anyway, isn't this is just some NZFirst thing that'll die on 2nd reading after getting hammered in select committee?

I mean, I can see them slipping through compulsory rectal exams for parolees at the moment (to be conducted by the victim with a pitchfork, of course, to a chorus of the Nats crying about how soft it is on criminals) but surely not this.

Posted by tussock : 3/19/2007 01:48:00 PM

Tussock: its currently available only in hardcopy; some nice person scanned me a copy and emailed it to me. Hopefully the bill itself will be online by tomorrow.

As for the bill, it's not an "NZFirst thing" - it's the product of Phil Goff, and therefore official government policy. And while National will oppose it for being too soft (they favour an even more draconian system, used in Western Australia), I expect it will receive the backing of NZ First and United Future, at least to select committee. So, if you want to do something about it, it might pay to start thinking about a submission.

I'm currently trying to get the policy advice through the OIA; hopefully it will arrive before the submission deadline.

Posted by Idiot/Savant : 3/19/2007 01:54:00 PM

The bill is up now - a mere 6 days after introduction, and less than 24 hours before its first reading. Someone has been slack...

Posted by Idiot/Savant : 3/19/2007 04:50:00 PM

Telecom hasn't been convicted of any crime, but you're right behind their assets being seized.


Posted by Anonymous : 3/20/2007 07:29:00 PM

Meanwhile, as for the "All Ur Assets R belong to Us" bill, what's on the web is barely legible. They've chosen to hide the OEF and replace it with what appears to be low quality lossy compression of a scan of a faxed print. Reading through it would be days of headaches, and I'm simply not prepared to go through that.

Can I at least assume this isn't normal practice for their web presence? Surely government can figure out how to print directly to PDF and such with standard fonts like the rest of us.

Plus, crazy, crazy bill, from what I got through. 1: Assume an unspecified crime, 2: declare huge value of income from same, 3: anyone unable to prove every legitimate source of legitimate money for legitimate purchases of legitimate assets ad infinitum looses said value (or less).

Posted by tussock : 3/20/2007 11:19:00 PM

Hugh: Not being a libertarian, I don't think regulating the market is theft.

Tussock: Normally they're much better and post the original file (which is usually much smaller as well). But it seems to have been a real struggle to get this bill online; I'm not sure what the problem is.

The main bit you need to read is the explanatory note at the beginning. I can email you a clean copy if you'd like.

As for the bill itself, you've got it in one. The potential for abuse is obvious. Unfortunately it seems only the Greens and Maori party are opposing it.

Posted by Idiot/Savant : 3/20/2007 11:49:00 PM

Ha! And you accuse the police of being glib -- "Not being a libertarian, I don't think regulating the market is theft. " means, "My disagreement puts me in a different group than you, therefore I disagree."

I would question your reasoning further, but I've already figured it out;

You believe that to take control of someone else's property regardless of their wishes is wrong. The bill you're discussing would let this happen to alleged criminals and so that is a Bad Thing (I agree!)

Therefore, if the exact same action happens to someone else, like a big business, it would also be bad ... BUT ... you want this to happen to big businesses. So, you change the word! Now, taking control of someone else's property regardless of their wishes is called "regulation". Same action, different spelling and pronunciation.

Best be careful how often you use this justification-by-linguistics, I hear too much doublethinking is bad for your brain cells.

Posted by Anonymous : 3/21/2007 11:26:00 AM

Hugh: actually, it's because I believe in human rights and due process in the justice system. While you're obviously outraged over the government's efforts to regulate the market to avoid monopoly abuses, it is not the same thing.

Posted by Idiot/Savant : 3/21/2007 11:37:00 AM

Hugh, you just have to go back to school mate, just back to school for you...

This bill and the regulation of Telecom are, I agree, REALLY interesting issues, but smart insights don't come from presuming that those who disagree with you are big jerks and that they are of massively inferior intelligence to your good self; with the consequent name-calling, and the smarminess, and the anger.

Intelligent thought generally results from good standards of debate. Unlike most other places on the web the posts on this blog come close to those standards, and it'd be good if the comments did too. Such standards include at least TRYING to understand your opponent's view, then arguing from the points you both agree on to reach YOUR preferred conclusion.

So let's have a go at that. You think that asset forfeiture and regulation constitute the same basic action, am I right? So a consistent position on the justness of these should condemn both: "if the exact same action happens to someone else, like a big business, it would also be bad" (for example). I think I've understood your view - correct me if not.

But can I suggest that the kind of principle of equality you're assuming, something like "equal moral consideration to all entities for which no morally relevant differences exist", isn't useful here, because firms and humans are morally distinct entities. Humans feel grievance at being arbitrarily deprived of their goods, but firms have no feelings, no sense of better or worse, in their own right. So justice requiring the treatment of firms as if they were humans doesn't necessarily follow from any sensible principle of equality.

But, you say, the firms shareholders do feel grievance at an reduction in their asset values - they are humans, and are the entities whose equality with asset forfeiture victims we should be considering. Neither shareholders nor unconvicted 'criminals' should be subject to arbitrary loss of assets.

I ask you: is it actually 'arbitrary' when a company is regulated with consequent loss of share value? Surely the shareholders know that they've purchased a stake in a company that operates in a regulated market economy, and that the regulations will change from time to time to shift from a socially inoptimal regulatory regime to a better one. Unless the shareholders think that NO regulation is the best state of the world, or that the regulations of early 2006 are the perfect state of the world, then they must accept that regulations need to eventually change. Everyone agrees upon the latter, and therefore the asset value loss resulting from regulation is not arbitrary.

Hence, taking the assets of unconvicted 'criminals' and regulating a company to the detriment of shareholders are different actions, because only one is arbitrary, unexpected, and hence unavoidable. The principle of equality - that if one of those situations is morally wrong so is the other - isn't relevant here. I hope you'll agree, or at least think about it.

Anyway, that drawn out story was completely obvious to most people. The point is: please try and debate nicely and smartly.

Posted by Anonymous : 3/21/2007 03:28:00 PM

eernub, I must say I'm glad to see a coherent defense of a position.

But I disagree with your reasoning. You say that theft is bad because it's arbitrary and unexpected -- but if theft is purposeful and expected it becomes "regulation" and is therefore ok.

1. This doesn't hold up in itself. If you left your car unlocked in Wanganui and it was stolen, I don't think you'd expect the police to say "Sorry, the thief felt he had a good reason despite what you think, plus you should've expected it so, actually, it's not really theft."

Theft dressed up with good intentions and lots of warning is still theft.

2. Putting aside whether you're for or against, this still doesn't differentiate stealing from Telecom and stealing from suspected criminals; this current asset seizure is going through the same process as Telecom's - both have clear purpose according to those in charge. And, it's not as if the government passing laws that affect people's property is unprecedented, so there's no surprise there.

So you haven't separated the two. Yet, you're for one and against the other.

And since you brought up the topic of debating style, I will add:
less is more.

Posted by Anonymous : 3/21/2007 10:52:00 PM

By your logic, tax is theft, and I don't think many people would want to live in a world where the government had no tax revenue to fund health, education, etc.

The difference is in whether the compulsory acquisition is determined by clearly defined rules, or by the whim of individuals. Taxation operates on rules that apply equally to all. Regulation of the communications infrastructure is applying rules for the greater good, is applied universally, and doesn't care who the specific shareholders affected are. In contrast, theft and the Asset Forfeiture bill target specific individuals entirely at the whim of the acquirer with no thought to fairness.

Posted by Commie Mutant Traitor : 3/22/2007 11:29:00 AM

CMT, regarding your first point: you seem to say that if lots of people agree, it must be true... ? Hmm.

Point two:

"Regulation ... is
-applying rules for the greater good,
-is applied universally, and
-doesn't care who the specific shareholders affected are."

The asset seizure bill (according to its promoters) fits those criteria as well.

"In contrast, theft and the Asset Forfeiture bill target specific individuals entirely at the whim of the acquirer with no thought to fairness."

Regulation is at the whim of the regulator, and there is no fairness in taking someone else's property. There is no "fair theft".

But don't worry, this is an old post so no-one's reading it and regulation of wealthy businesses is very popular on blogs and in real life, so, really, no need pressure to try and apply reason to this. Just join the mob and be happy.

Posted by Anonymous : 3/22/2007 10:44:00 PM