Submission – Criminal Activity Intervention Legislation Bill
About the New Zealand Council for Civil Liberties
- The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
- We wish to make an oral submission to the Committee.
3. The Council is concerned about the additional restrictions on our civil liberties and freedoms contained in the Criminal Activity Intervention Legislation Bill.
4. The Council disputes that this bill will be effective. We note that similar measures overseas have proven to have no effect on organised crime. Instead they reduce community safety by reducing trust in the police. There is no evidence to suggest that arresting or imprisoning people harms gangs. On the contrary, being imprisoned increases the likelihood of a person to commit future crimes.
5. The Council is concerned that the negative effects of this bill have not been given sufficient weight when the decision to enact this bill was made. The bill’s Supplementary Analysis Report cautions:
[These] new powers for Police have the potential to negatively impact progress in other workstreams including Resilience to Organised Crime in Communities, which focuses on working more directly with gangs to lessen gang harm, including providing alternative pathways to gangs and pathways out of gangs. Searches of gang whanau homes, for example, are likely to damage these relationships and erode trust.
6. The Council believes that the new long-lived, multiple-use search warrants are incompatible with the right to be free from unreasonable search and seizure protected by s21 of the NZ Bill of Rights Act.
7. The Council is concerned that a number of measures are aimed at gangs, thus reducing the civil liberties of their members, even though the classification of people as gang members is arbitrary and subject to bias. This is an attack on both freedom of association and the right to justice, both protected by the NZ Bill of Rights Act.
8. The Council notes that the prohibition on certain cash transactions stops people who cannot open bank accounts from purchasing certain items, which is an unreasonable restraint on their freedom.
9. This bill follows the Firearms Prohibition Orders Legislation Act 2022, the Contempt Of Court Act 2019, and the Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018 as new anti-gang powers enacted by this government. Each of these has been passed because the Police claim that they do not have the tools to manage gangs. The Council fears that we could continue to surrender our liberties indefinitely and the Police will still claim to lack the tools to manage gangs.
10. This hastily drafted bill does the opposite of The Safe and Effective Justice Advisory Group’s 2019 report Turuki! Turuki! Moving Together, which recommended shifting the focus from crime to community.
Te Tiriti o Waitangi
11. By the government’s own admission “there was no consultation with Māori on the proposals in the bill”.
12. The government claims that consultations were skipped as there is a need to pass this legislation quickly. The Council does not believe that the government has made the case for this urgency as a justification for abandoning its Tiriti obligations.
13. The people who belong to associations which the New Zealand Gang Intelligence Centre has chosen to label as gangs are 77% Māori. Therefore, this bill, which contains provisions that further the existing discrimination on the basis of alleged membership of an alleged gang, can easily be seen to enable further discrimination against people on the basis of race.
The Council recommends that the bill be withdrawn for the required consultations before proceeding any further.
Search and Seizure – Part 3 of the Bill
14. The effect of part 3 of the bill is to reduce the oversights and protections established by the Search and Surveillance Act 2012. It reduces the threshold for granting a warrant, it creates long-lived multiple-use warrants, and it creates warrants for geographical areas. It further offends against freedom of association and the right to justice by using arbitrary and unfair classification of groups of people as gangs.
15. We note that article 21 of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory, provides for freedom from “arbitrary or unlawful interference with his privacy, family, home or correspondence.” This is enacted in NZBORA s 21 which provides for protection against unreasonable search and seizure.
16. We further note that search warrants are a very invasive use of government powers that has a significant impact on the lives of both the targets and their friends and families. While their use can be justified, we are concerned that this bill proposes a massive expansion of their scope and use in a way that cannot be justified.
17. Part 3 requires that the judge who grants the warrant agrees that there is reason to believe the conditions of the new section 18D are met. The new warrant has a lower threshold than before, replacing “reason to believe” with “reason to suspect” that the warrant is justifiable.
18. The current bar to get a warrant is not very high and this change lowers it even further, even for the very wide-ranging warrants proposed by this bill.
Long-lived multiple-use warrants
19. Once granted, these new warrants can be used again and again during the specified period with no additional justification or further oversight.
20. We are concerned that these warrants will be deliberately used to harass people by searching them repeatedly even when there is no serious suspicion of wrong-doing.
Geographic control measures
21. The bill proposes geographic control measures where particular areas can be singled out for stronger enforcement. There is a long history of failure for similar measures in the United States. Studies show either no-effect for these measures, or that they disperse crime without decreasing it.
22. Part 3 will increase the already excessive surveillance (“over-policing”) of Māori and Pasifika neighbourhoods. The Council believes that the alarming over-representation of Māori and Pasifika people in our justice system is partially caused by this excessive surveillance of their communities.
Freedom of Association and the Right to Justice
23. The bill seeks to limit people’s rights based on their association with a gang.
24. Being a member of a gang is legal in New Zealand. It is protected by s 17 of the NZ Bill of Rights Act, “everyone has the right to freedom of association”.
25. The process of an association being classified as a gang, and people being officially listed as part of that association is done under the Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018 (hereafter NZ Gang ISA) which created the “New Zealand National Gang List“.
26. An association which is added to this list has no opportunity to defend itself against this decision. Furthermore the list itself is secret so associations do not even know they have been listed.
27. Finally, people identified under sections 8(3) or 9(3) of NZ Gang ISA have no opportunity to challenge the accuracy of their inclusion on those lists.
28. This whole process is unfair and an affront to the right to justice in s 27 of the NZ Bill of Rights Act, which states that “Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.”
29. Part 3 of this bill creates new grounds for searches, and therefore has the effect of reducing privacy. Search of family homes impacts the rights of everyone present or living there, many of whom, for example children, will not be the intended target of the search.
Recommendations – Part 3 of the Bill
30. Part 3 of the bill infringes our rights against unreasonable searches, to freedom of association, to a fair trial, and to privacy.
31. The Council believes that the government has failed to demonstrate the benefits required for an NZBORA s5 trade-off, specifically that part 3 of this bill:
(b)(ii) [impairs] the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?; and
(b)(iii) is the limit in due proportion to the importance of the objective?
The Council recommends that Part 3 be removed from the bill.
While not strictly in scope of the bill, we make further recommendations about the NZ Gang ISA:
The Council recommends that NZ Gang ISA be amended so that any association accused of being a gang has the opportunity to defend itself before being added to the “New Zealand National Gang List“.
The Council further recommends that NZ Gang ISA be amended so that every person listed under sections 8(3) or 9(3) has the opportunity to challenge their inclusion.
The Council further recommends that the “New Zealand National Gang List” be published, and kept up to date, so that people can know which associations they should be cautious of joining for fear of state sanctioned discrimination.
Right to Own Property – part 4 of the Bill
32. Clause 27 of the bill inserts a new clause 67A into the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. The effect of it is to place limits on people’s ability to purchase certain kinds of property in cash. This includes: jewellery, watches, and motor vehicles.
33. Article 17 of the Universal Declaration of Human Rights provides for the right to own property. This is an accepted right in Aotearoa New Zealand as well.
34. The Council draws the Committee’s attention to the fact that people do not have a right to have a bank account, and that many people are denied bank accounts. In particular, banks routinely deny accounts to anyone who they perceive to pose increased anti money laundering compliance costs, including many migrant workers.
35. This bill denies those people, whose numbers we suspect exceed the intended targets by this bill, the right to purchase and therefore own motor vehicles and the other kinds of property listed in clause 67A.
36. Anyone actually interested in circumventing this bill will find no shortage of valuables that allow them to do so. Clause 67A for example, does not list art or aircraft.
Privacy and anonymity
37. Part of the purpose of this new prohibition is to provide for the tracing of financial transactions.
38. The Council believes we have a right to conduct our financial lives free from the surveillance which has become ubiquitous.
39. There are numerous legitimate reasons why the anonymity of cash should be protected. For example, we explicitly acknowledge the importance of the ability to make anonymous donations up to a particular threshold in our campaign finance laws. If our government is to declare one kind of association, a political party, can accept cash while another, a gang, can not then our government needs to explain its reasons in much greater detail than it has.
The Council recommends that part 4 of the bill be removed as it is an unreasonable and unjustified limitation on the freedoms of the un-banked, and another step in the creation of a financial surveillance system.
40. The Council draws to the Committee’s attention that the Attorney General has not reviewed this bill, but rather reviewed an earlier draft. We urge the Committee to instruct the Attorney General to revise their NZBORA compliance report on the bill as presented at first reading before the Committee prepares its report. We further recommend that the Attorney General be asked to update the NZBORA compliance report again before second reading if the Committee amends the bill.
41. The Council thanks members of the Committee for their time and consideration of our submission.
 For example Joe Domanick, Blue: The LAPD and the Battle to Redeem American Policing (New York: Simon and Schuster, 2015), page 65.
 Alex Vitale, The End of Policing (London: Verso, 2017), page 151
 Supplementary Analysis Report page 3 https://www.justice.govt.nz/assets/Documents/Publications/Supplementary-Analysis-Report-Criminal-Activity-Intervention-Legislation-Bill.pdf
 s 3.2 of the Disclosure Statement, https://disclosure.legislation.govt.nz/bill/government/2022/166
 Supplementary Analysis Report, s 30
 Beth Caldwell, “Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions,” American Journal of Criminal Law 37, no. 3 (2010): 241–290
 NZBORA section 5 “Hansen Test”: Hansen v R  NZSC 7,  3 NZLR 1 at 
 Reserve Bank of New Zealand, archived at http://web.archive.org/web/20220310072839/https://reservebankmuseum.govt.nz/news/2015/01/statement-about-banks-closing-accounts-of-money-remitters
 We’ve recommended to the Standing Orders review that this process should be standard for all bills.