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University of Otago Law Theses and Dissertations |
Last Updated: 14 April 2024
Creeping Criminalisation
The Expanding Boundaries of New Zealand’s Criminal Law
Caleb Williams
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago - Te Whare Wānanga o Otāgo.
6 October 2023
Acknowledgements
I express my deepest gratitude to my supervisor, Margaret Briggs, for your invaluable guidance, expertise, and positivity throughout this journey. Your supervision made this experience truly enjoyable, and I wish you all the best for the future!
To my friends and flatmates, thank you for all the good times over the past five years. You guys have made my university experience truly memorable. A special thanks to Josef, for your constant support, insight, and friendship throughout this experience.
Thank you to my parents Chris and Alli, for everything. I am eternally grateful for your love and support. It goes without saying, but I could not have done this without you!
Finally, to David, I will forever treasure the good times we shared. Rest easy, big man.
Table of Contents
Introduction
In New Zealand (NZ), the boundaries of our criminal law have been gradually expanding, often without due consideration of the underlying principles that ought to guide such expansion and the potential consequences accompanying their neglect. While Parliament routinely enacts new criminal offences, they seldom pause to adequately consider the underlying justifications or broader implications of their actions. As a result, the integrity of our criminal law is gradually deteriorating. This dissertation investigates three instances of this expansion to shed light on a rising trend of unprincipled criminalisation in NZ, indicative of a growing tendency to overcriminalise.
This trend partly stems from the direct link between electoral pressures and criminal policy. Politicians face significant incentives, particularly in the realms of public opinion and partisan discourse, to appear “tough on crime”.1 A reliable way to project this stance is to enact new criminal offences, irrespective of their justifications. This unjustified expansion threatens to transform our criminal code from a “well-understood and indisputable statement” of shared societal norms into a “bloated compendium” of inconsistent laws, rendering it incapable of guiding those subject to it.2 Therefore, it is imperative to resist the notion that criminalisation is a mere political tool, and, instead, to recognise and adhere to its rightful limits.3 When these limits are disregarded, we run the risk of overcriminalisation.
Overcriminalisation represents the claim that governments “create too many crimes and criminalise things that properly should not be crimes”.4 Given its normative basis, only a normative theory can provide an adequate response.5 Therefore, while acknowledging the politically contingent nature of the criminal sanction, this dissertation seeks to establish a normative framework rooted in several foundational principles that ought to guide the use of
1 Zoë Prebble “Overlapping Criminal Offences and Gendered Violence: What is Overlap and When is it Part of The Problem of Overcriminalisation?” (PhD (Law) Theses, University of British Columbia, 2018) at 42.
2 Erik Luna “Overextending the Criminal Law” in Gene Healy (ed) Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute, Washington DC., 2004) 1 at 1.
3 Andrew Ashworth “Conceptions of Overcriminalization” (2008) 5 OSJCL 407 at 408.
4 Douglas Husak “Six Questions about Over-Criminalisation” (2023) 6 Annu Rev Criminol 265 at 270.
5 At 270.
the criminal law.6 This will serve as the foundation for evaluating the principled legitimacy and the resulting overcriminalisation concerns posed by the selected examples of expansion.
At the outset, it is appropriate to acknowledge several aspects of this discussion. Firstly, it is important to note that while this dissertation focuses on a trend of expansion, this expansion has not been uniform. In some areas, the ambit of NZ’s criminal law has been constrained.7 Secondly, there are many potential examples in NZ of unprincipled expansion, with varying overcriminalisation concerns.8 Due to limitations in scope, this dissertation focuses on three that aptly illustrate a trend of unprincipled expansion: the new expanded form of burglary,9 preparatory terrorism offence,10 and the Criminal Proceeds Recovery Act’s (CPRA) civil forfeiture regime.11 The analysis of the new burglary and preparatory terrorism offences aims to illustrate, on a principled basis, that they prescribe conduct likely residing outside of the proper ambit of the criminal law, thereby representing unprincipled expansion. The analysis of the CPRA’s civil forfeiture regime provides a different illustration of unprincipled expansion. It aims to demonstrate that the process is criminal in nature, thereby representing the criminal law expanding into the civil realm to the detriment of underlying principles.
It is also important to acknowledge that overcriminalisation can be considered from various perspectives,12 and by drawing insights from multiple disciplines, such as sociology, political science, and economics.13 Rather than utilising an interdisciplinary approach, my primary perspective will be that of a “legal philosopher”, focusing on the principled limits of criminal law.14 Furthermore, many of the issues under discussion are inherently complex, with even foundational matters such as the definition of the “criminal law” and its purposes representing
6 Ashworth, above n 3, at 408. See also Husak, above n 4, at 276 where Husak notes that “establishing and upholding principles of justice is the only theoretically adequate remedy for overcriminalisation”.
7 For example, some morality offences have been decriminalised thus restraining the scope of the criminal law,
such as prostitution under the Prostitution Reform Act 2003, or consensual sex between men over the age of 16 years under the Homosexual Law Reform Act 1986: Prebble, above n 1, at 12.
8 Scholars have identified regulatory offences involving strict liability, morality crimes such as drug and gambling offences, and white collar crimes, among others as contributors to overcriminalisation: Prebble, above n 1, at 12-26.
9 Crimes Act 1961, s 231A.
10 Terrorism Suppression Act 2002, s 6B.
11 Criminal Proceeds (Recovery) Act 2009 (CPRA), ss 43-69.
12 See for example, Sandford Kadish “Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations” (1963) 30 U Chi L Rev 423 which takes a “consequentialist approach”, focusing in- depth on the adverse practical outcomes of overcriminalisation.
13 Husak, above n 4, at 270.
14 At 270.
subjects of profound disagreement among theorists.15 While the depth of these complexities cannot be fully explored within this work, their significance should not be underestimated.
Finally, given the normative nature of this discussion, many of the conclusions drawn throughout hinge on value judgments.16 Therefore, individuals may hold varying viewpoints on the issues discussed based on their subjective assessment of the proper role of criminal law and the relevance of principles in a given context. While many considerations are contestable, that does not “diminish the importance of grappling with them”.17 Therefore, while this dissertation does not provide a definitive consensus on what constitutes overcriminalisation, it aims to underscore the importance of engaging in principled discussion before expanding the criminal law.
Part I provides a general overview of overcriminalisation, encompassing its definition, causes, and consequences. It seeks to emphasise that overcriminalisation is far from a “neutral state of affairs”, coinciding with a rising trend of overpunishment and eroding fundamental rule of law values.18
Part II delves into the nature of criminal law, beginning with its distinct characteristics and the importance of establishing justifiable boundaries. After examining the “fallacy of a grand theory”, a principled framework is outlined. This framework focuses on the fundamental principles of individual autonomy and welfare whilst advancing the harm and public wrongs principles as guides for criminalisation. Finally, it underscores the necessity of a prudent and considered approach to criminalisation through the principle of minimalism.
Part III critically analyses three specific instances of criminal law expansion against the framework established in Part II and in light of other contextually relevant principles. Each analysis provides an overview of the expansion, its legislative process, proposed justifications and resulting overcriminalisation concerns.
15 At 266; and AP Simester and Warren Brookbanks Principles of Criminal Law (Thomson Reuters, Wellington, 2019) at [1.3.3].
16 Andrew Ashworth “Is the Criminal Law a Lost Cause?” (2000) 11 Law Q Rev 225 at 225.
17 At 225.
18 Prebble, above n 1, at 66.
Part IV consolidates the preceding analysis by drawing attention to notable similarities between the three examples, emphasising the enduring nature of these issues, and addressing the path forward.
To provide helpful context for the ensuing analysis, this Part offers a general overview of overcriminalisation, encompassing its likely definition, causes and consequences. Overall, this Part seeks to demonstrate that overcriminalisation is not merely an issue for “the textbook, the classroom, or the law reformer; it is an issue of justice and an issue for everyone”.19
Whilst identifying a widely accepted definition of overcriminalisation is “surprisingly difficult”, it generally reflects the overarching concern that there is too much criminal law.20 Thus, when it is asserted that a state overcriminalises, they are accused of utilising the criminal law too often or in ways that are better suited to other means of control.21 In essence, overcriminalisation occurs when states exceed the normative boundaries that restrict the scope of criminal law.22
Overcriminalisation can be categorised into two dimensions: overbreadth and overdepth.23 Overbreadth pertains to the scope of the criminal law and involves questioning whether the criminalised conduct appropriately falls within criminal law’s ambit.24 Conversely, overdepth refers to conduct that may legitimately fall within the criminal law’s scope but is criminalised many times over.25 While both categories warrant concern, the discussion throughout focuses on overbreadth.26
19 Prebble above n 1, at 66.
20 Husak, above n 4, at 269.
21 At 269.
22 At 276.
23 Prebble, above n 1, at 9-10 citing William Stuntz “The Pathological Politics of Criminal Law” (2001) 100 Mich L Rev 505 at 512.
24 Prebble, above n 1, at 10.
25 At 28.
26 Categories of overbreadth are numerous and cannot be discussed exhaustively in this dissertation. For example, discussions relating to morality offences, regulatory offences, and the erosion of the boundaries between criminal and other forms of liability are prevalent throughout overbreadth literature: Prebble, above n 1, at 13-26.
Summarising the causes of overcriminalisation is challenging, with it likely resulting from many differing social, political, and legal factors. Nonetheless, it is pertinent to highlight one primary contributor: the highly politicised nature of crime. One key driver of this is termed the “punitive-turn”,27 where the prevailing penal policies in Western jurisdictions transitioned from an era marked by “penal welfarism”, which emphasised rehabilitative interventions, to the present era of “penal populism”, which an increased emphasis on retribution.28 Penal populism refers to the process wherein political parties vie to demonstrate their commitment to being “tough on crime”. This is particularly evident in NZ’s current political landscape, where the looming election has brought the “tough on crime” approach to the forefront of political discourse.29 As noted by Prebble:30
One way for politicians to show that they take crime seriously and ... are “doing something” about a perceived “crisis” of unwanted, antisocial or already criminalised behaviour is to pass new legislation criminalising, re-criminalising, or enhancing the maximum penalties for the conduct in question.
This new criminal legislation often passes with ease, as political parties are well aware that appearing tough on crime greatly benefits their popularity among voters. Such a direct connection between electoral pressures and criminal policy is troubling, as criminalisation being used “indiscriminately and pragmatically for political ends” significantly raises the risks of overcriminalisation.31 Additionally, it can lead to the emergence of “crimes du jour”, where new criminal offences are introduced in response to high-profile crime incidents despite existing offences already covering the conduct.32
Legislators frequently wield the criminal law as a multi-purpose tool to get themselves off “the political hook” without considering the lasting implications of their actions.33 When criminalisation is driven primarily by public sentiment and the pursuit of short-term political
27 Prebble, above n 1, at 41-42.
28 At 46.
29 See Peter Wilson “The Week in Politics: Labour strikes back - who's soft on crime now?” (21 July 2023) Radio New Zealand <https://www.rnz.co.nz>; Christopher Luxon “National to toughen sentences to counter crime wave” (25 June 2023) National <https://www.national.org.nz/national>.
30 Prebble, above n 1, at 49.
31 Nicola Lacey “What Constitutes Criminal Law?” in RA Duff, and others (eds) The Constitution of the Criminal Law (Oxford University Press, Oxford, 2013) 12 at 26.
32 Prebble, above n 1, at 4.
33 Ashworth, above n 16, at 253.
gains, the resulting legislation rarely demonstrates sufficient principled justification. Thus, leading to a growing concern that “the criminal law is becoming unmoored from its ethical foundations”.34
As noted by Prebble, overcriminalisation is associated with a range of normative consequences that present inconsistencies with our normative sense of what the criminal law ought to be or ought to do.35
One such consequence is the corresponding trend of an increased number of people under the supervision of the criminal justice system.36 When the scope of the criminal law is expanded, it logically results in a higher incidence of punishment.37 This concern becomes all the more pressing in countries with elevated incarceration rates; as more become engaged by the criminal justice system, more individuals will find themselves incarcerated. In NZ, the incarceration rate is approximately 170 individuals per 100,000 of the population.38 This figure surpasses the Organisation for Economic Co-operation and Development average of 147 prisoners per 100,000 people and has garnered attention as a key initiative by the Ministry of Justice.39 While this is considerably lower than the 700 per 100,000 in the United States (US), it remains a substantial concern in a nation where high incarceration rates have long been a focal point of policy deliberations.40 Therefore, one problematic aspect of overcriminalisation is the parallel trend of overpunishment.
Overcriminalisation also presents several inconsistencies with the rule of law (ROL). According to the ROL, legislation should be accessible, clear, and reasonably certain in its application to ensure that individuals understand what the law permits and prohibits.41
34 Gene Healy “Introduction” in Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute, Washington DC., 2004) vii at viii.
35 Prebble, above n 1, at 51.
36 Douglas Husak Overcriminalization: The Limits of the Criminal Law (online ed, Oxford Academic, New York, 2007) at 17.
37At 20.
38 “Safe and Effective Justice” (18 July 2023) Ministry of Justice < https://www.justice.govt.nz>.
39 “Safe and Effective Justice” (18 July 2023) Ministry of Justice < https://www.justice.govt.nz>.
40 Organisation for Economic Co-operation and Development (OECD) Society at a Glance 2016: OECD Social Indicators (OECD Publishing, Paris, 2016) at 132.
41 Prebble, above n 1, at 56.
Overcriminalisation undermines this expressive or signalling function of the criminal law.42 When the law is overly broad, citizens may not have meaningful awareness of the laws they are subject to. Moreover, the disconnect between the law on the books and its enforcement further renders it ineffective in guiding individuals’ behaviour.43 Therefore, overcriminalisation risks excessive uncertainty.
Another ROL concern is the consolidation of discretion within the purview of law enforcement officers and prosecutors.44 As the criminal law expands, significant discretion is afforded to those responsible for its implementation. Police officers and prosecutors decide which laws are implemented in practice and against whom they are enforced.45 In the hands of bad actors, this broad power can be an “instrument of tyranny”, but even in the hands of the most well- intentioned actors, exercising unguided discretion involves “an inescapable residuum of injustice”.46 Therefore, the extensive discretion resulting from overcriminalisation raises consistency and certainty concerns.
This excessive discretion can lead to differential treatment of individuals in similar circumstances, often on arbitrary grounds, thereby undermining equality under the law.47 For example, while a significant portion of the population likely engages in morality offences, the law is typically enforced against a relatively small subset of individuals.48 Typically, this subset comprises individuals from lower socioeconomic backgrounds, resulting in enforcement that is often “class-based, and ...to some extent, race-based”.49 Consequently, those individuals with the least political influence experience unequal and more severe punishment under the criminal law. This is particularly relevant in NZ, where Māori are disproportionately represented at every stage of the criminal justice system.50 The gravity of this problem is reflected by Māori incarceration rates, which stand at 528 per 100,000 of the population, approaching the figure observed in the US.51
42 At 56.
43 At 57-58.
44 At 58.
45 Henry Hart Jr “The Aims of the Criminal Law” (1958) 23 Law & Contemp Probl 401 at 428.
46 At 429.
47 Prebble, above n 1, at 64.
48 Stuntz, above n 23, at 575. Drugs or gambling related crimes are a classic example of “morality offences”.
49 At 575.
50 “Safe and Effective Justice” (18 July 2023) Ministry of Justice <https://www.justice.govt.nz>.
51 Ruth Cunningham and others “Mortality after release from incarceration in New Zealand by gender: A national record linkage study” (2022) 20 SSM Popul Health 1 at 1.
Though this has been a brief summary, it has sought to demonstrate that the consequences of overcriminalisation are inherently problematic. The expanding criminal law coincides with a trend of over-punishment and the erosion of fundamental values associated with the ROL. “Overcriminalisation is not a neutral state of affairs”; its consequences are far more than purely academic, encompassing issues of fairness and justice that should concern us all.52
52 Prebble, above n 1, at 66.
The Nature of the Criminal Law
As noted by Husak, without a “normative theory or (at least a set of principles)” to differentiate between legitimate and illegitimate uses of the penal sanction, it is impossible to determine whether a state overcriminalises.53 Therefore, before examining unprincipled criminalisation in NZ, the criteria for assessing these instances must be defined. This Part commences by exploring the distinctiveness of the criminal law and the necessity of recognising justifiable boundaries. It proceeds to discuss the limitations of a “grand theory” and provides a definition for “principles”. Finally, it outlines several principles as a contextual framework for the forthcoming analysis.
All areas of law require justifiable limits; the criminal law is no exception. In fact, due to the considerable impact it can have on the lives of those it engages, the necessity for defining these limits is arguably more significant. Akin to other areas of law, the criminal law serves as a mechanism through which the state orders its citizens’ lives.54 However, to underscore its unique societal importance, it is worth highlighting how it differs from its civil counterpart.
Several factors have traditionally distinguished the criminal law.55 Firstly, the harms it addresses generally hold greater moral significance and can be described as public.56 Where civil law predominantly regulates interactions between private parties, with the aggrieved party initiating proceedings,57 the criminal law focuses on the wrongdoer and the state who prosecutes on behalf of the society in question.58 Therefore, the harms proscribed by criminal offences are usually those that “directly threaten the security or well-being of society”, which
53 Husak, above n 4, at 270.
54 Simester and Brookbanks, above n 15, at 1.
55 While procedurally the criminal and civil realms differ considerably, this is omitted from the discussion in the interests of brevity.
56 Recent scholarly discussion has focused on the increasingly blurred line between civil and criminal law on this basis, as well as the difficulty in distinguishing criminal and civil sanctions based on their content. Many offences (such as regulatory crimes) are mala in prohibitum (wrongs only in virtue of being criminalised) rather than mala in se (wrongs in themselves). Therefore, we must be wary in distinguishing criminal law based on the moral significance of its rules: Ashworth, above n 15, at 253; and Prebble, above n 1, at 19.
57 Ashworth, above n 3, at 408.
58 Prebble, above n 1, at 14.
cannot be addressed by “compensating the injured party”.59 In such instances, the state is deemed to have a duty to regulate such behaviour directly.60
Another critical distinction pertains to the concept of punishment and the rationale for its imposition. In the criminal realm, Parliament does not ask simply individuals to obey the law; it commands that citizens obey “or else”.61 Therefore, punishment is what gives the law its teeth. Whilst civil sanctions, such as orders for specific performance or damages are generally compensatory in nature,62 criminal sanctions, which may include fines or imprisonment, are imposed because the defendant is deemed deserving of punishment.63 While both share an element of deterrence as neither is likely to be welcomed by the defendant, the associated culpability sets the criminal context apart.64 Censure as an “integral aspect” of the criminal sanction,65 underscores its special social significance.66
However, a conviction is likely the criminal law’s most distinctive feature, as it not only authorises sanctions but is regarded as a punishment in its own right. This is demonstrated by the distinction between a “discharge without conviction” and a “conviction and discharge” within the Sentencing Act 2002.67 A conviction symbolises a public declaration from the State that the offender is a criminal, condemning their actions and attributing moral culpability. This represents the central distinguishing aspect of the criminal law, the “stigmatisation of the morally culpable”. 68 When an individual is labelled as a “criminal”, they inherit the negative connotations of the term,69 profoundly impacting their “ability to flourish”.70
In summary, the criminal law designates conduct as so morally egregious that the state is
59 Carleton Allen Legal Duties and Other Essays in Jurisprudence (Clarendon Press, Oxford, 1931) at 233-234.
60 Simester and Brookbanks, above n 15, at 2.
61 At 3.
62 At 3.
63 Ashworth, above n 16, at 232. Ashworth explains this concept by comparing fines and tax. While both are payments to the state, only the former implies “should not do”, whereas the latter lacks the normative implications.
64 Simester and Brookbanks, above n 15, at 1.3.3. The authors note how deterrence is one of the primary beneficent effects associated with the utilitarian theory of punishment but that the theories of the rationale for punishment remain a matter of “irresolvable dispute”. Thus, a full analysis resides outside the scope of this dissertation.
65 At 4.
66 Andrew Ashworth and Jeremy Horder Principles of Criminal Law (7th ed, Oxford University Press, Oxford, 2013) at 1.
67 Simester and Brookbanks, above n 15, at 5 citing the Sentencing Act 2002, ss 106 and 108.
68 Kadish, above n 12, at 437.
69 Simester and Brookbanks, above n 15, at 6.
70 Ashworth, above n 3, at 410.
compelled to intervene on behalf of society. It carries inherent normative connotations, dictating what society “ought not to do”.71 Thus, where criminal liability is found, it is accompanied by formal censure and potential state-enforced punishment, which may severely restrict the ordinary liberties of the offender. Furthermore, a conviction labels the defendant as “criminal”, potentially resulting in consequences beyond the confines of the criminal justice system. In this way, the criminal law is a “morally loaded sledgehammer”, underscoring the necessity of recognising and adhering to justifiable boundaries.72
Many scholars have endeavoured to develop a comprehensive normative framework for the criminal law. Such a framework would offer obvious advantages for discussions concerning criminalisation by providing an objective benchmark for determining its legitimacy. However, recent scholarly work reveals that this task is significantly more complicated than it ostensibly seems. The inherent complexities of criminal law render constructing such a theory difficult, if not impossible.
Duff’s seminal piece Theorising Criminal Law terms this desire for an all-encompassing framework as the “yearning for a grand theory” whilst outlining the difficulties presented by such a task.73 He is not alone in this discussion; several recent works have reached similar findings. For example, a group of leading scholars set out to develop a normative theory of criminalisation via a series of edited volumes centring around principles that ought to inform criminalisation determinations.74 Duff, Farmer, Marshall, Renzo, and Tadros admitted defeat in the final of these volumes, stating that their earlier ambition “to work towards a normative theory of criminalisation was soon replaced by a more realistic ambition to work towards a clearer understanding of the complex normative questions” that bear on the various processes of criminalisation.75
71 Ashworth and Horder, above n 66, at 1.
72 Simester and Brookbanks, above n 15, at 1003.
73 RA Duff “Theorising Criminal Law: A 25th Anniversary Essay” (2005) 25 Oxf J Leg Stud 353 at 355.
74 RA Duff and others The Boundaries of the Criminal Law (Oxford University Press, Oxford, 2010); RA Duff and others The Structures of the Criminal Law (Oxford University Press, Oxford, 2011); RA Duff and others The Constitution of the Criminal Law (Oxford University Press, Oxford, 2013).
75 RA Duff and others “Introduction: The Constitution of the Criminal Law” in The Constitution of the Criminal
Law (Oxford University Press, Oxford, 2013) 1 at 1.
What, then, are the challenges that prompt academics to question the feasibility of undertaking this task? One of the central difficulties lies in the sheer breadth and diversity of actual and potential crime. Given this fact, Ashworth notes that an “objective benchmark of criminality” or “some general theory” that enables the deduction of correct criminality over such wide and varied conduct is non-existent and seemingly “unattainable”.76
Another difficulty relates to the varying contexts within criminal law, which necessitate different principled considerations. Liability, culpability and other key aspects of the criminal law will all vary depending on the specific context in which they arise.77 Additionally, the criminal law is embedded in a “complex web of moral, social, and political values”, which are not always “commensurable or consistent”.78 The reconciliation and uniform application of these diverse values across all instances of criminalisation is implausible. Finally, the substance of the criminal law relies significantly on the historical context of the legal system in question.79 Therefore, an all-encompassing normative framework for NZ criminal law would require a precursory investigation of our social and political framework, institutional arrangements, and established values. Such an investigation likely resides beyond the scope of this dissertation.
The criminal law’s vast range, contextual variability, and multitude of considerations lead to what I have termed the “fallacy of a grand theory”. The possibility that it just may be too arduous to assess criminal law based on an all-encompassing theory. This possibility is succinctly summarised in The Boundaries of The Criminal Law:80
[one possibility is to]... accept that we cannot hope to find any such master principle or set of such principles: that different kinds of consideration will be relevant to the criminalisation of different kinds of conduct; that these considerations might often conflict in ways that cannot be neatly resolved; and that decisions about criminalisation, ... can only be made in a piecemeal way that cannot be captured by any neatly structured set of principles.
76 Ashworth and Horder, above n 66, at 22.
77 Duff, above n 73, at 363.
78 At 363.
79 At 354.
80 RA Duff and others “Introduction: The Boundaries of the Criminal Law” in The Boundaries of the Criminal Law (Oxford University Press, Oxford, 2010) 1 at 21.
In light of this, the following framework will be contextual and non-exhaustive. This will lack “the pleasing conceptual neatness...of ideal theories of criminal law”.81 But given the inherent complexities, it is likely the best approach to the task.82
To facilitate principled discussion, it is essential to first address the definition and role of “principles”. This can be accomplished by distinguishing “principles” from “rules” and “standards”, which will offer valuable insights into their respective roles and significance.83
“Rules” are direct and specific prescriptions that dictate the conduct individuals must adhere to or refrain from.84 These are typically directly laid out in legislation, and as previously discussed, their violation may lead to conviction, punishment, and censure. Conversely, “standards” serve a dual purpose, acting as criteria for assessing conduct when determining liability and functioning as broader guidelines, defining expected behaviour in various situations, including exercising self-control, demonstrating self-restraint, forming certain beliefs, or fulfilling duties of care.85 “Principles” hold a unique place, functioning as guides and criteria for judging the “character of rules and standards” in criminal law.86
Most principles discussed throughout are derived from the internal “constitutional resources” of criminal law.87 While they may lack legislative status, they are recognised in criminal jurisprudence as valuable guides for criminalisation based on their strong normative foundations.88 However, a “genuinely principled approach does not entail a blanket rejection of extensions to the criminal law”.89 Many principles provide sound normative reasons for criminalisation. Therefore, extensions of the criminal law may be legitimately justified by
81 Nicola Lacey “Principles, Policies, and Politics of Criminal Law” in Lucia Zedner and Julian Roberts (eds) Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford Academic, Oxford, 2012) 19 at 25.
82 It is important to note that there are differing opinions regarding the feasibility of a “grand theory”. However due to the complexities discussed, outlining a “grand theory” lies beyond the scope of this dissertation.
83 Jeremy Horder Ashworth's Principles of Criminal Law (10th ed, Oxford University Press, Oxford, 2022) at 63.
84 At 63.
85 At 68.
86 At 69.
87 RA Duff and others, above n 75, at 2.
88 At 2.
89 Horder, above n 83, at 70.
principle. A helpful example of this is the Government’s recently proposed “ram-raid” offence.90 As the proposed offence, s 231B, overlaps with the ordinary burglary provisions, it raises prima facie overcriminalisation concerns. Indeed, its announcement, coinciding with public outcry over the prevalence of ram-raiding,91 has drawn criticism from academics as a “knee-jerk reaction” designed to project a “tough on crime” stance during an election year.92 However, upon closer examination, s 231B may be legitimately justified by principle. “Ram- raids” cause extensive property damage, thus their underlying harm can be distinguished from that underpinning ordinary burglary. Therefore, under the principle of fair-labelling, attributing a distinct label to “ram-raiding” offenders may better represent the nature of their wrongdoing to the public.93 On this basis, despite initial concerns, Parliament may have legitimate principled justifications for introducing s 231B, thereby demonstrating that principles may provide sound normative reasons for criminalisation.94
Rules, standards, and principles make up the “fabric” of the criminal law.95 However, discretion at every stage of the justice system means that this “fabric” is not systematically applied to those subject to it.96 Consequently, overcriminalisation can be gauged “de jure” by reference to the law on the books or “de facto” by the law in action.97 The ensuing analysis will be “de jure”, focusing on the substantive law at the level where it gains its authoritative legal shape.98
90 Ram Raid Offending and Related Measures Amendment Bill 2023 (283-1), cl 6. Note that a “ram-raid’ denotes a burglary or robbery, wherein a vehicle is forcibly used to gain entry to a premises: “Retail crime and ram raids” (August 2023) New Zealand Police <www.police.govt.nz>. They are currently prosecuted under the standard burglary provisions and qualify as an aggravating factor at sentencing: Borrell v Police HC Tauranga AP6/01, 9 August 2001 at [11].
91 Cherie Howie and George Black, “Retail crime: Almost 400 ram raids in six months, judge tells young offender the public have had enough” New Zealand Herald (online ed, New Zealand, 14 July 2023); Jenna Lynch “Newshub-Reid Research poll results: Clear majority of kiwis don’t think Government’s doing enough to address ram-raids” (7 August 2023) News Hub <www.newshub.co.nz>.
92 Notably, even the Police Association President was “bemused at the point of creating an entirely new offence for ram-raids”: Government's new ram-raid criminal offence 'knee jerk reaction', criminologist says” (20 July 2023) Radio New Zealand <www.rnz.co.nz>.
93 See Part III, page 28 where the fair-labelling principle is outlined in depth within the discussion on the new burglary offence.
94 It was noted during the Bill’s announcement that it would be subjected to the full select-committee process. If this holds true, then optimistically, the forthcoming select committee and consultation processes will thoroughly explore the principled basis for the new offence: Glenn McConnell “Government wants to give police power to convict 12-year-old ram raiders” The Post (online ed, New Zealand, July 20 2023).
95 Horder, above n 83, at 4.
96 At 4.
97 Husak, above n 4, at 273.
98 While the judiciary can also expand or restrict the scope of the criminal law, this discussion focuses on the legislature.
While a “grand theory” is implausible, providing a principled framework will prove helpful for the ensuing contextual analysis. This framework focuses on the two fundamental principles of individual autonomy and welfare, which serve as the foundation for numerous other principles and demonstrate the intricate balancing act involved in determining the scope of criminal law.99 Within the welfare principle, the principles of harm and public wrongs are detailed as guides for criminalisation decisions. Finally, the principle of minimalism will be advanced, emphasising the need for thoughtful and prudent criminal law expansion.
The principle of individual autonomy broadly pertains to the notion that every person should be free to live according to their own choices and preferences.100 In essence, criminalisation militates against this freedom by imposing the legislature’s view of how one should behave and coercing compliance under the threat of criminal liability.101 In this way, it can prevent individuals from pursuing their personal goals and aspirations. Therefore, autonomy emphasises liberty and individual rights in criminalisation decisions. Of course, at an offence- specific level, proscriptions are unlikely to substantially interfere with an individual’s freedom of choice.102 However, we must be aware of the cumulative effects of criminalisation; with the law already restricting countless behaviours, further criminalisation requires firm justification.103
The principle of autonomy is not absolute. While it rightfully upholds individual interests over the collective in some instances, it is less convincing in others. For example, where an individual’s conduct harms others, criminalisation may justifiably restrict that behaviour. Furthermore, at times collective interests may take precedence over the individual to create the “necessary conditions for maximum autonomy”.104 In light of this, the welfare principle assumes a crucial role by considering the societal context in which laws are enforced and
99 Lacey above n 81, at 23.
100 Simester and Brookbanks, above n 15, at 8.
101 At 8.
102 At 8.
103 At 9.
104 Ashworth and Horder, above n 66, at 25.
highlighting the importance of collective goals and objectives.105 It justifies criminalisation based on its ability to prevent societal harm and promote the community’s well-being.
In essence, these two principles demonstrate how the boundaries of criminal law involve a delicate balancing act. Different circumstances call for assigning varying weight to each principle, underscoring the importance of approaching criminalisation in a considered manner.
Three principles derived from welfare offer valuable guidance in criminalisation decisions. The first is the harm principle; its essence is that the state is justified in criminalising conduct that causes or risks harm to others.106 Its most extensive description is offered by Feinberg as “It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor...”.107
Feinberg defines harm as the “setting back, or defeating of an interest”,108 with an “interest” including an individual’s activities, relationships, and ability to pursue valuable, self-chosen goals.109 Therefore, the harm principle assesses prospectively at potential reductions of an individual’s capacity to lead a fulfilling life.110 However, harm alone cannot justify criminalisation. It must result from wrongful conduct, entailing the culpable defeat or abuse of another’s interests.111 This excludes legitimate societal setbacks, like those in competitive business practice. While pursuing one’s interests in the free market may cause adverse effects for others, it is not wrongful, and therefore cannot justify criminalisation. The third principle is that the wrong must have a public element, which involves considering whether the community should bear the responsibility for addressing the wrong in question. This is not necessarily an aspect of the wrong itself but in the public valuation of the wrong. As noted by Duff:112
105 At 26.
106 Simester and Brookbanks, above n 15, at 1005.
107 Joel Feinberg The Moral Limits of The Criminal Law: Harm to Others - vol 1(Oxford University Press, New York, 1984) at 26.
108 At 33.
109 Simester and Brookbanks, above n 15, at 1007.
110 At 1007.
111 Ashworth and Horder, above n 66, at 29.
112 RA Duff Answering for Crime (Hart Publishing, Oxford, 2007) at 141-142.
A public wrong is against the polity as a whole, ... given our identification with the victim as a fellow citizen, and our commitment to [shared] values that the [offender] violates, we must see the victim’s wrong as also being our wrong.
In summary, the welfare principle recognises that certain conduct may be legitimately criminalised to promote the community’s overall well-being, with the harm and public wrongs principles determining the appropriateness of such criminalisation. While there may be no definitive boundary of justified criminalisation based on these principles, they offer valuable guidance.
Based on the preceding discussion, one can reasonably conclude that criminal law represents the most powerful tool within a state’s arsenal.113 Its primary function, criminalisation, directly and forcefully coerces citizens into conforming with its conception of what society ought to look like. This coercion should not be exercised without sufficient cause, especially when considering the potential censorious and punitive measures for non-compliance.114 Therefore, there should be “parsimony in criminalisation”;115 we should aim to take a minimalist approach, extending the criminal law only when necessary and with clear social justification.
Horder provides two main justifications for the minimalism principle. The first concerns the imposition of censure and punishment, which necessitates observing “moral ...constraints” when the legislature criminalises conduct.116 The second stems from a humane response that even when criminalisation is justified, it subjects individuals to state authority, which can cause great suffering, hardship and impoverishment.117 Based on this, criminalisation should be minimised, as censuring and punishing another human being is a “distasteful duty” that should not be seen as a means to express the righteous indignation of those informed of the crime.118
113 Douglas Husak “Reservations About Overcriminalization” (2011) 14 New Crim L Rev 97 at 102.
114 Simester and Brookbanks, above n 15, at 6.
115 At 1004.
116 Horder, above n 83, at 79. These “moral side constraints” include respecting human rights, criminalising as a last resort, and not criminalising when it would be counter-productive: see Ashworth and Horder, above n 66, at 31.
117 Horder, above n 83, at 80.
118 At 80.
Therefore, we should strive for a minimalistic approach, where criminalisation serves as a backstop for other exhausted mechanisms of control.
This discussion has outlined several fundamental principles of criminal law to shed light on the complex considerations involved in determining the scope of criminalisation. The principles of individual autonomy and welfare have been outlined as the bedrock for criminalisation decisions. Within welfare, the harm and public wrongs principles have been detailed as guides for criminalisation. Whilst they are valuable in determining the scope of criminalisation, it is essential to exercise caution due to the potentially drastic consequences. Therefore, the minimalism principle calls for a considered and prudent approach, where criminalisation must be necessary and clearly justified.
Instances of Overcriminalisation
This Part seeks to demonstrate a growing trend of unprincipled expansion in NZ criminal law by investigating three case examples which raise overcriminalisation concerns. Each analysis will provide a brief overview of the expansion and its legislative process. Subsequently, the analysis will explore the expansion’s justifications and resulting overcriminalisation concerns. As this dissertation takes a contextual approach, each example will be evaluated in light of the fundamental principles outlined above, alongside other principles relevant to the expansion under scrutiny.
At common law, burglary consisted of “breaking and entering, by night, into the mansion house of another, with the intent to kill or to commit another felony therein”.119 Over time, burglary has been readily expanded beyond these traditional requirements, with it now functioning as a “location aggravator” justifying additional penalties for various crimes.120 NZ has also witnessed a significant evolution in its approach to burglary, with it now standing broader than many analogous jurisdictions.121 Recently, a new form of burglary was introduced, expanding our approach even further.122 To explore this expansion, the standard burglary and new offence will be detailed. Subsequently, the justifications for the new offence and its resulting overcriminalisation concerns will be discussed, focusing on the principles of minimalism and fair-labelling.
In NZ, the standard form of burglary, as redefined in 2003, is found in s 231 of the Crimes Act 1961.123 It requires entry into, or remaining in, a “building or ship”, “without authority”, and
119 Edward Coke The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes (W Clarke and Sons, London, 1817) ch 14 at 63.
120 Helen Anderson “From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law” (2012) 45 Ind L Rev 629 at 630.
121 Colin Gavaghan and Margaret Briggs “Burglary Without Borders” (2021) 29 NZULR 445 at 453.
122 Crimes Act, s 231A.
123 Parliament overhauled the previous burglary provisions via the Crimes Amendment Act 2003, collapsing the separate offences of “breaking and entering” and “unlawful entry” into a new distinct offence: s 231.
with the “intention to commit an imprisonable offence” therein.124 Upon conviction, one is liable for a term of imprisonment not exceeding ten years.125 The location qualifier (“building”) is defined in broad terms as “any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; or any enclosed yard, closed cave or closed tunnel”.126
Despite NZ’s ordinary definition of burglary standing somewhat wider than other jurisdictions,127 in March 2019, s 231A was introduced, titled “Entry onto agricultural land”.128 This new provision expands burglary by allowing it to be committed by entering “any land used for agricultural purposes” with “intent to commit an imprisonable offence relating to any building or structure, livestock, animal, or machinery on that land”.129 The maximum penalty remains, despite the expanded location qualifier.130 Therefore, burglary can now be committed by unauthorised entry onto “agricultural land”, regardless of proximity to any “building”.131 This is a significant expansion, encompassing conduct far beyond burglary’s traditional conception.
Rural property crime initially emerged as a legislative concern via the Sentencing (Livestock Rustling) Amendment Bill 2017. It noted that the growing prevalence of livestock theft on farms was “creating serious risk for farmers and their businesses” costing the farming sector over $120 million annually.132 The Bill aimed to introduce “livestock” rustling as an aggravating factor at sentencing,133 but was withdrawn upon advice that its objectives could be
124 Crimes Act, s 231(1)(a)-(b).
125 Section 231(1).
126 Section 231(2).
127 Including “enclosed yard” within the definition of “building” expands the offence’s scope beyond comparable jurisdictions. See Gavaghan and Briggs, above n 121, at 453 which highlights how the Theft Act 1968 (Eng and Wales) defines a “building” to include inhabited vehicles or vessels, and how in Australia (AU), the Criminal Code Act 1995 defines “building” as including mobile homes, caravans, and structures (whether or not movable), vehicles and vessels used, designed or adapted for residential purposes.
128 Crimes Amendment Act 2019, s 8. While s 231A does not specifically mention burglary, the provision is contained under the “Burglary” heading in the Crimes Act. Additionally, the provision details that aggravated burglary (s 232) and possession of an instrument for burglary (s 233) apply to s 231A with necessary modifications: s 231A(3). Therefore, it is a new form of burglary.
129 Crimes Act, s 231A(1).
130 Section 231A(1).
131 Provided that the defendant intended to commit a requisite imprisonable offence: s 231A(1).
132 Sentencing (Livestock Rustling) Amendment Bill (271-1) (explanatory note) at 1.
133 Sentencing Act, s 9.
better achieved via amendments to the Crimes Act 1961.134 Two years later, s 231A was introduced via the Crimes Amendment Act 2019, a Bill initially aimed at repealing three outdated provisions in the Crimes Act.135 Once the Bill passed its second reading, a Supplementary Order Paper (SOP) was attached, incorporating two new offences: s 231A and a new livestock theft offence, s 220A.136 These offences were only subjected to limited, targeted external consultation,137 but were unanimously agreed to by the House. Thus, resulting in the enactment of two new significant criminal offences while circumventing the usual democratic process.
To assess the legitimacy of this expansion, it is useful to first ascertain the rationale for the serious treatment of ordinary burglary and whether that same rationale can justify the introduction of s 231A. In early English criminal law, the sanctity and protection of a man in his domicile were emphasised, with burglary viewed as “one of the most heinous crimes”.138 Its rationale derived from the inviolability of the dwelling house and the potential psychological and emotional aftermath for victims.139 Now that burglary can be accomplished by entering any “building” with the requisite intention, it is worth exploring whether its rationale has evolved alongside its statutory definition.
Briggs and Gavaghan tackled this question by investigating potential justifications for modern burglary, such as the “need to protect private space” or to “fill gaps in the existing law of attempts”.140 Yet, they determined that the most plausible justification remains the fear and distress it typically causes.141 This was supported by recent studies confirming the
134 Sentencing (Livestock Rustling) Amendment Bill (271-1): Report of the Primary Production Committee (July 2018) at 2.
135 These were: the offence of blasphemy (s 123); spousal immunity after the fact (s 71(2)); and the “year and a day” rule (s 162).
136 Supplementary Order Paper 2018 (185) Crimes Amendment Bill 2018 (32-2). It is worth noting that s 220A also raises concerns relating to overdepth overcriminalisation, by overlapping with existing forms of theft.
137 Colin Gavaghan and Simon Connell “Why we have a beef with the new anti-rustling laws, and perhaps you should too (1 of 2)” (15 March 2019) Pundit <www.pundit.co.nz>.
138 Minturn Wright III “Statutory Burglary – The Magic of Four Walls and a Roof” (1951) 100(3) U Pa L Rev 411 at 411.
139 Gavaghan and Briggs, above n 121, at 455.
140 At 458.
141 At 459.
“psychological distress” experienced by burglary victims,142 and its well-established association with PTSD.143 Further, they found that the potential psychological harm is likely “strongly linked to location”, specifically “primary territory in the form of residence”.144 Hence, adhering to the welfare principle, burglary justifies criminalisation based on its capacity to inflict psychological harm. This substantiates its significant penalty and categorisation as a distinct offence from other invasions of private space, such as trespass, and lesser property crimes, such as theft. The breadth of our burglary provision shows a distinct slant towards the welfare side of the criminalisation spectrum. Including “enclosed yards” and “closed caves or tunnels” within the location qualifier steps away from burglary’s core harm, with invasion of these spaces unlikely to elicit similar psychological distress as an invasion of a primary residence. Despite this, they qualify for the same maximum penalty, illustrating a strong welfare approach.145
Section 231A indicates an even more pronounced step towards welfare by removing the “building” proximity requirement. Agricultural land may be extremely vast, especially when considering that NZ’s largest farm spans over 180,000 hectares.146 Under s 231A, entry onto any part of that land, with the requisite mens rea, could be equated to trespassing into a primary residence. While entering farmland with criminal intent is not devoid of harm, it likely differs significantly from the harm underpinning ordinary burglary. A further concern is raised by the provision’s breadth, as it merely requires any intention to commit an imprisonable offence related to a building, structure, livestock, animal, or machinery on that land.147 The Law Society highlighted that this may be “overly broad with the potential to seriously criminalise behaviour which may not [have been] intended to be caught by the new offence”.148 They
142 Gavaghan and Briggs, above n 121, at 459 citing Alan Beaton and others “The psychological impact of burglary” (2000) 6 Psychology, Crime & Law 33 at 40.
143 Gavaghan and Briggs, above n 121, at 459 citing MJJ Kunst, S Rutten and E Knijf “Satisfaction with the
Initial Police Response and Development of Posttraumatic Stress Disorder in Victims of Domestic Burglary” (2013) 26 Journal of Traumatic Stress 111 at 112.
144 Gavaghan and Briggs, above n 121, at 460.
145 This non-uniform risk of harm has arguably been recognised by the Judiciary, who have taken a restrictive approach to interpreting “enclosed yard”. The courts have defined it as an area of land which is appurtenant to a building (Paul v Police [2017] NZHC 3021 at [8]) which is enclosed in a way that demarcates it from adjacent land used for other purposes (R v Dar [2007] NZCA 140 at [21]).
146 Emma Meyer “Horses and Farming: Mustering at Molesworth” (24 November 2008) Te Ara
<https://teara.govt.nz>.
147 Crimes Act, s 231A(1).
148 Letter from Stephen Bonnar (Convenor, NZLS Criminal Law Committee) to Stuart McGilvray (Policy Manager, Criminal Law, Ministry of Justice) regarding proposed new offences – unlawfully entering agricultural property and livestock theft (19 October 2018).
provided the example of an animal rights activist entering agricultural land to protest but inadvertently being liable for burglary.149
As stated by Ashworth, “Justifications for criminalisation ought to be stronger as the maximum penalty increases.”150 Thus, a substantial expansion of the qualifying criteria for a significant criminal offence warrants compelling justification. Based on the preceding discussion, this justification cannot be derived from the harm underscoring ordinary burglary. Hence, to assess the justification for s 231A, it is useful to investigate the government’s rationale for its introduction. As noted, the reasoning behind s 231A related to escalating concerns about property crime in rural regions. The Ministry of Justice’s impact statement on SOP 185 indicated that there was a “gap” in the law of burglary, which meant that:151
...the underlying principle in the offence of burglary, protection of personal property, will not
...apply to the same extent for individuals who live in rural environments. Addressing this ensures the law can work effectively to respond to harm.
I find the assertion that the underlying principle of burglary is the “protection of personal property” unconvincing. Safeguarding personal property likely falls within the ambit of the general theft provisions outlined in the Crimes Act.152 Moreover, as stated above, burglary warrants severe treatment based on the harm materialising from intrusion into personal space, thereby extending beyond the mere protection of property rights. This underscores a clear and principled distinction between burglary and lesser property offences, grounded in the principles of harm and wrongdoing. The Law Society in their opposition to s 231A, noted this point, emphasising that the justification for burglary’s severe treatment is the unauthorised entry into a building or other enclosed space.153 Further, they noted that “the present criminal law provides adequate responses to those who commit crimes on agricultural land” and were
149 Letter from Stephen Bonnar (Convenor, NZLS Criminal Law Committee) to Stuart McGilvray (Policy Manager, Criminal Law, Ministry of Justice) regarding proposed new offences – unlawfully entering agricultural property and livestock theft (19 October 2018).
150 Ashworth and Horder, above n 66, at 42.
151 Ministry of Justice Regulatory Impact Assessment: Addressing the theft of livestock rustling in New Zealand
(18 December 2018) at 10.
152 Colin Gavaghan and Simon Connell “Why we have a beef with the new anti-rustling laws, and perhaps you should too (2 of 2)” (15 March 2019) Pundit <www.pundit.co.nz>.
153 Letter from Kathryn Beck (President of the New Zealand Law Society) to Andrew Little (Minister of Justice) regarding Crimes Amendment Bill, SOP 185 – new criminal offences relating to livestock rustling (19 December 2018).
unconvinced that there was any evidential basis to the contrary.154 They also highlighted that the courts already applied a range of aggravating factors relevant to this offending within the parameters of the ordinary theft provisions.155
Therefore, the alleged “gap” in the law seems unsubstantiated. A significant expansion like s 231A demands more convincing justification than vague notions of “gaps” and “responses to harm” offered without principled explanation. Section 231A appears to lack such a convincing justification.
One might expect the difference in harm across the various forms of burglary to be reflected in the sentencing process, with residential burglary attracting heavier penalties.156 However, to uphold key ROL values, such as clarity and certainty, and to mitigate concerns related to broad discretion, offences ought to be well-drafted from the outset. Thus, I maintain that s 231A raises overcriminalisation concerns, centring on its inconsistencies with the principles of fair- labelling and minimalism.
Stemming from the principle of autonomy, the fair-labelling principle dictates the necessity of labelling offences to fairly represent the nature and magnitude of the rule-breaking.157 As fittingly summarised by Wilson, offence labels assist people in “making moral sense of the world”, and “excessive specificity” or “particularism” can confound rather than aid that aim.158 The principle’s primary basis relates to fairness, particularly to the offender. As noted by Horder:159
154 Letter from Stephen Bonnar (Convenor, NZLS Criminal Law Committee) to Stuart McGilvray (Policy Manager, Criminal Law, Ministry of Justice) regarding proposed new offences – unlawfully entering agricultural property and livestock theft (19 October 2018).
155 Letter from Stephen Bonnar (Convenor, NZLS Criminal Law Committee) to Stuart McGilvray (Policy Manager, Criminal Law, Ministry of Justice) regarding proposed new offences – unlawfully entering agricultural property and livestock theft (19 October 2018).
156 Gavaghan and Briggs, above n 121, at 462.
157 Ashworth and Horder, above n 66, at 77.
158 William Wilson “Murder and the Structure of Homicide” in Andrew Ashworth and Barry Mitchell (eds)
Rethinking English Homicide Law (Oxford University Press, Oxford, 2000) 21 at 23.
159 Jeremy Horder “Rethinking Non-Fatal Offences against the Person” (1994) 14 Oxf J Leg Stud 335 at 351.
...what matters is not just that one has been convicted, but of what one has been convicted. If the offence in question gives too anaemic a conception of what that might be, ...the wrongdoing
...will not have been properly represented to the public at large.
Chalmers and Leverick discussed this necessity of proper public representation of the wrongdoing in their detailed study on fair-labelling.160 They found that offence labels serve an important communicative function, conveying information to several bodies.161 The first is the general public, to whom an offence label “symbolise[s] the degree of condemnation that should be attributed to the offender ... and signals to society how that particular offender should be regarded”.162 The second are entities within the criminal justice system, where an offence label may influence decisions, such as evaluating suitable penalties and prior convictions.163 Similarly, bodies external to the criminal justice system may utilise labels in making judgments, for example, in an employment context, accurate information about a prospective employee’s criminal history is of legitimate interest to the employer.164
The fair-labelling principle thereby necessitates labelling offences in accordance with the nature and gravity of the wrongdoing, both for the public’s understanding and the bodies making decisions about the offender. The principle is rooted in respect for the fundamental principle of autonomy and is pivotal in ensuring fairness. A conviction and the attached label are widely recognised as detrimental to an offender’s life.165 Thus, if the offence label does not accurately reflect the degree of the offender’s wrongdoing, they may be “unfairly stigmatised”.166
Section 231A reveals troubling inconsistencies with this principle. Internationally, burglary is viewed as a crime that elicits “widespread concern”.167 This sentiment is evident in NZ, where it stands as the most commonly perceived crime issue within communities.168 Though
160 James Chalmers and Fiona Leverick “Fair Labelling in Criminal Law” (2008) 71 Mod L Rev 217.
161 At 238.
162 At 226.
163 Ashworth and Horder, above n 66, at 77.
164 At 77.
165 A conviction presents difficulties when gaining employment, insurance, and housing, among other resulting adverse effects: Guy Williams “Examining the consequences of convictions” Otago Daily Times (online ed, New Zealand, 11 March 2023).
166 Chalmers and Leverick, above n 160, at 226.
167 Rob Mawby Burglary (Willan Publishing, Devon, 2001) at ch 2.
potentially unfounded, the imagery associated with burglary, as described by Maguire and Bennet, is unsettling, encompassing notions of nocturnal violence, property damage, and sexual violation.169 This distressing perception is further compounded by burglary’s potential to induce severe psychological consequences for victims, thus heightening “social anxiety” about the offence.170 As “the law exists in society, not in the abstract”,171 a convicted “burglar” likely inherits the negative connotations of the term.172
Assuming the validity of the above assertion, the introduction of s 231A may lead to concerning outcomes. Namely, where an offender simply stepping onto vast farmland with the necessary intent is affixed with the same “burglar” label as an offender who enters a primary residence in the dead of night. These concerns were exemplified in a recent case in Greymouth, where a man was convicted under s 231A for damaging and taking a substantial number of beehives.173 While this is undoubtedly blameworthy behaviour, it raises questions about whether the type of conduct rightfully merits the “burglar” label.
As highlighted by Ashworth, the principle of fair-labelling necessitates a level of “correspondence between the descriptive label, the maximum penalty, and the social conception of the wrongdoing”.174 I contend that s 231A lacks this synchrony, given that it encompasses conduct which lacks the same harm as conventional burglary while bearing an identical maximum punishment and descriptive label. The censure associated with the “burglar” label does not correspond to the conduct envisioned by s 231A. This misalignment stands in contention with the fair-labelling principle and raises overcriminalisation concerns.
169 Mike Maguire and Toby Bennett Burglary in a Dwelling: The Offence, The Offender and the Victim
(Heinemann, London, 1982) at 164–165.
170 Gavaghan and Briggs, above n 121, at 462 citing Celia Wells and Oliver Quick Lacey, Wells and Quick: Reconstructing Criminal Law (4th ed, Cambridge University Press, Cambridge, 2010) at 368.
171 Simester and Brookbanks, above n 15, at 6.
172 At 6.
173 R v Edwin [2023] NZDC 4021 at [93]; and Jeremy Wilkinson “Missing and damaged beehives result in
$120k loss for beekeepers, conviction for Greymouth man” The New Zealand Herald (online ed, Palmerston North, 25 August 2023).
174 Ashworth, above n 3, at 410.
As s 231A expands a serious criminal offence without corresponding justification it is prima facie incompatible with the principle of minimalism. However, it is worth highlighting that it clashes with a specific facet of minimalism, criminalisation as a last resort.
Section 231A’s introduction as an SOP raises concerns about the degree to which alternative measures were evaluated. The Bill’s impact assessment noted that it was “significantly constrained”,175 due to the evaluation being limited to legislative change.176 As a result, “operational initiatives”, like encouraging greater reporting of livestock rustling, or establishing a police taskforce to better police rural communities, were not considered.177 While it remains possible that alternative options were considered before the legislative process commenced, the available record suggests an insufficient emphasis on or an absence of these considerations. This principle requires the thorough exploration of viable non-criminal measures to reduce the risk of overcriminalisation and maintain the balance between the severity of the conduct and the legal response. The apparent absence of such consideration in this case casts doubt on whether this principle was adequately respected.
Overall, s 231A represents the expansion of a serious criminal offence without corresponding justification. By encompassing conduct that is unlikely to warrant the substantial penalty or the “burglar” label, s 231A stands in contention with the principles of fair-labelling and minimalism, raising overcriminalisation concerns. Compounding these concerns is the circumvention of the usual democratic process. Therefore, s 231A serves as a valuable example of unprincipled criminal law expansion.
The next example of expansion is NZ’s recently introduced preparatory terrorism offence. Preparatory offences have emerged globally as responses to the unique challenges posed by modern terrorism. As terrorists are unlikely to be “inhibited by the threat of punishment”, the deterrence power of the criminal law is severely limited.178 Moreover, the potential harm posed by terrorism may render traditional inchoate offences insufficient, as waiting for a proximate
175 Ministry of Justice Regulatory Impact Assessment: Addressing the theft of livestock rustling in New Zealand
(18 December 2018) at 3.
176 At 3.
177 At 8.
178 Andrew Ashworth and Lucia Zedner Preventative Justice (Oxford Academic, Oxford, 2014) at 179.
connection represents a potentially catastrophic risk.179 In light of these concerns, counter- terrorism legislation internationally commonly features pre-inchoate offences “designed primarily to forestall the commission of a terrorist crime”.180 This approach has “radically enlarged the substantive scope of the criminal law”.181
Recently, such an offence was introduced in NZ. Section 6B, titled “Terrorist act: planning or other preparations to carry out”,182 was one of various amendments to the Terrorism Suppression Act 2002 (TS Act), fast-tracked through the House in the wake of the Lynn Mall terrorist attack on September 4, 2021.183 Allowing liability for acts of preparation, this section represents a marked departure from other forms of inchoate liability in our criminal law. To explore this expansion, the new provision and legislative process that saw it introduced will be outlined. Then, the justifications for the new offence will be discussed. Finally, the significance of the expansion and its resulting overcriminalisation concerns will be addressed.
Section 6B was introduced via the Counter-Terrorism Legislation Act 2021 (CTLA). It outlines that it is an offence warranting a maximum penalty of seven years imprisonment “if a person carries out a terrorist act ...by planning or other preparations to carry out the act, whether it is actually carried out or not”.184 “Terrorist act” is defined within s 5. For clarity, it can be broken down into the following three elements:185
179 Crimes Act, s 72.
180 Andrew Lynch, Edwina MacDonald and George Williams (eds) Law and Liberty in the War on Terror (The Federation Press, Sydney, 2007) at 211.
181 Lucia Zedner “Terrorizing Criminal Law” (2014) 8 Crim Law Philos 99 at 115.
182 Counter-Terrorism Legislation Act 2021, s 6B.
183 “Auckland mall terrorist attack: New details of supermarket victims - four women, three men, aged 29-77” (5 September 2021) New Zealand Herald <https://www.nzherald.co.nz>.
184 Terrorism Suppression Act, ss 6B(1) and 6B(4).
185 Freya Bayne “Casting a Wide Net Domestic Legislative Responses to Global Threats of Terror” (LLB (Hons) Dissertation, University of Otago, 2016) at 21.
iii. Serious interference with or disruption to an infrastructure facility, if likely to endanger human life;
2. Carried out for the purpose of advancing an ideological, political, or religious cause;
Section 6B(2) details that the offence applies only to planning that does not satisfy any of the other definitions of “carrying out” a terrorist act within s 5A(1),187 and for the purposes of s 72(2) of the Crimes Act 1961 is “too remote to constitute an attempt”.188 Further, the provision outlines that the prosecution must prove that if the “plan” was carried out, it would constitute a “terrorist act” under s 5 and must satisfy the intention and purpose elements of that definition.189 However, a specific target, location, date, or time for the planned “terrorist act” is not required.190 By requiring the prosecution to prove these intention and purpose requirements,191 and with a maximum imprisonment term of seven years, s 6B stands somewhat narrower than provisions in comparable jurisdictions.192 Notably, the CTLA also amended the Search and Surveillance Act 2012, extending warrantless entry, search, and surveillance powers to s 6B.193
Thus, s 6B significantly expands the ambit of the criminal law whilst also authorising the use of warrantless search powers to investigate potential offenders. Section 6B therefore sits at the
186 Terrorism Suppression Act, s 5.
187 These are; A credible threat to carry out the act (s 5A(1)(b)), an attempt to carry out the act, (s 5A(1)(c), or the carrying out of the act (s 5A(1)(c).
188 Section 6B(2).
189 Section 6B(3)(a)-(b).
190 Section 6B(3)(c).
191 See for example the AU Criminal Code Act 1995 (Cth) s 106.6(1) which provides that “A person commits an offence if the person does any act in preparation for, or planning, a terrorist act”. Thus, lacking an intention requirement.
192 Both the United Kingdom (UK) (Terrorism Act 2006 s 5(3)) and AU (Criminal Code Act 1995 s 106.6(1)) stipulate imprisonment for life.
193 Section 39, amending the Search and Surveillance Act 2012, s 15.
extreme welfare side of the criminalisation spectrum. Its broad nature, allowing for any “planning or preparation” to satisfy the actus reus, infringes heavily on the principle of autonomy. Despite this, given the gravity of the prospective harm, “planning” a terrorist act has been deemed a sufficiently serious public wrong to warrant criminalisation.
Before 2002, terrorism was addressed in NZ via a fragmented legislative approach.194 To align with international commitments, in particular, United Nations Security Council Resolution 1373, the TS Act was enacted in response to the events of September 2001.195 Resolution 1373 mandated that member States:196
Ensure that any person who participates in the..., planning, preparation or perpetration of terrorist acts... is brought to justice and ensure that... such terrorist acts are established as serious criminal offences in domestic laws.
Consequently, the absence of an offence capable of attributing preparatory terrorist liability meant that NZ was non-compliant with its international obligations. This shortcoming and other perceived deficiencies within the TS Act were brought to light after the Christchurch Mosque terrorist attack, leading to the initiation of a Royal Commission of Inquiry (RC) in 2019, tasked with evaluating the sufficiency of existing terrorism legislation.197
In July 2020, the Deputy Solicitor-General consented to a prosecution based on an interpretation that the TS Act did encompass a terrorism planning offence.198 R v S involved an alleged ISIS sympathiser who had already been convicted of two counts of knowingly possessing objectionable material and failing to assist a police officer in exercising a search power.199 The Crown sought to add a charge under a creative interpretation of then s 25(1),200
194 Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019 Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 (November 2020), Part 8, at 13.2.
195 SC Res 1373 (2001).
196 At cl 2(e).
197 Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019, above n 194.
198 At Part 8, 13.3.
199 R v Samsudeen [2018] NZHC 2465 at [45]. The offender had already served three years imprisonment and was sentences to a year-long sentence of intensive supervision.
200 R v S [2020] NZHC 1710 at [27]- [28].
arguing that “engaging in a terrorist act” encompassed acts of planning or preparation.201 The Court found that planning and preparation for terrorist acts were not, in themselves, offences,202 noting that the absence of such an offence “...could be an Achilles heel”.203 Further highlighting that “it is not open to a Court to create an offence, whether in the guise of statutory construction or otherwise. The issue is for Parliament”.204
The RC’s report was released in November 2020, recommending that the Government “review all legislation related to the counter-terrorism effort, ...prioritising consideration of the creation of precursor terrorism offences in the TS Act”.205 Notably, the report recognised the necessity of preceding debate before such an inclusion, highlighting that the report should not pre-empt the outcome of such debate.206 Subsequently, in April 2021 the Counter-Terrorism Legislation Bill was presented in the House. The then-Minister of Justice highlighted that this Bill marked the Government’s first step in implementing the RC’s recommendation.207
As aforementioned, on September 4, 2021, an ISIS-inspired “lone-wolf” terrorist attacked members of the public at a Countdown store in Auckland. Remarkably, the individual was the same offender charged in R v S.208 While a successful “planning” charge may not have had any practical impact on the events,209 media coverage focused on this failed “planning” charge, generating moral outrage.210 In response, the then-Prime Minister announced that the Bill, which was currently undergoing select committee scrutiny, would be fast-tracked and passed
201 At [29].
202 At [51].
203 At [52].
204 At [52].
205 Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019, above n 194, Part 10, at 2.5.
206 Part 8, at 13.7.
207 Hon Kris Faafoi “Government takes step forward on counter terrorism laws” (press release, 13 April 2021). 208 Jane Patterson “Anti-terror law back before Parliament today but faces opposition” (21 September 2021) Radio New Zealand <https://www.rnz.co.nz>.
209 The charges that the offender faced in R v S carried heavier maximum sentences than s 6B. Therefore, the existing law still possessed the tools to find him accountable. However, whether an additional charge of a planning offence would have resulted in a sentence of imprisonment remains uncertain: Andrew Geddis “Would harsher terrorism laws have prevented the mall attack?” (4 September 2021) The Spinoff
<https://thespinoff.co.nz>.
210 Sam Sachdeva “The ‘Achilles heel’ exposed by Auckland terrorist” (4 September 2021) Newsroom
<https://www.newsroom.co.nz>; Catrin Owen “Man shot dead after stabbing at mall had been sentenced for possessing Isis propaganda” (3 September 2021) Stuff <www.stuff.co.nz>; Sarah Robson “LynnMall attacker spent years under watchful eyes” (6 September 2021) Radio New Zealand <www.rnz.co.nz>.
“as soon as possible”.211 Keeping to her word, by 4 October 2021, the Bill had gained royal assent.
In sum, despite the absence of a terrorism planning offence being recognised by the Courts and the Royal Commission of Inquiry, s 6B’s method of introduction raises concerns. It represents a vast expansion to the ambit of the criminal law, encompassing pre-inchoate liability, a substantial maximum penalty, and authorising warrantless powers of investigation. Yet it was fast-tracked, bypassing the usual democratic process.
The Government’s justification for introducing s 6B was to address the identified “gap” in our criminal law, which prevented law enforcement from charging individuals for pre-inchoate terrorist acts. Thus, allowing NZ agencies “the tools and clear legal authority to intervene to identify, disrupt, and prevent terrorist activities”.212 Additionally, it aligns NZ with comparable jurisdictions and fulfils obligations under international law, thereby exhibiting ostensible practical justifications.
At the level of principle, the legitimacy of s 6B is up for debate. Commentators disagree on whether preparatory offences of this kind rightfully find themselves within the ambit of the criminal law. For example, Alexander and Ferzan argue that the criminalisation of preparatory conduct is inherently illegitimate because preparatory actors are yet to cause harm and can abstain from doing so by changing their minds.213 Conversely, others argue that as the seriousness of the risked harm increases, so does the justification for pre-emptive offences such as s 6B,214 as “waiting for [these] risks to materialise is already too late”.215
However, as Cornford highlights, even if one concedes that preparatory offences of this nature possess principled justification, the credibility of that justification diminishes the earlier that
211 Rt Hon Jacinda Ardern, Prime Minister “Prime Minister’s update on the 3 September Auckland terrorist attack” (4 September 2021) (press release, 4 September 2021).
212 Counter-Terrorism Legislation Bill (29-1) (explanatory note) at 2.
213 Larry Alexander and Kimberly Kessler Ferzan Crime and Culpability: A Theory of Criminal Law
(Cambridge University Press, New York, 2009) at ch 6.
214 Ashworth and Zedner, above n 178, at 105.
215 AP Simester “Prophylactic Crimes” in GR Sullivan and Ian Dennis (eds) Seeking Security: Pre-Empting the Commission of Criminal Harms (Hart Publishing, Oxford, 2012) 59 at 60.
intervention takes place.216 While the primary form of inchoate liability, the law of attempts faces criticism for its act requirements that defy precise definition; s 6B goes even further by attributing liability for any “planning or other preparations”.217 Such breadth may result in even the most innocuous acts incurring liability upon proof of intention. Moreover, its warrantless search powers have the potential to cause severe chilling effects. Therefore, I assert that despite the potential practical and principled justifications, the capacity of s 6B to criminalise early- stage preparatory acts and its possible chilling effects lead to valid overcriminalisation concerns.
The overcriminalisation issues raised by s 6B can be grouped under two main concerns grounded in respect for individual autonomy. The first pertains to the provision’s capacity to attribute liability several steps before the consummate harm. The second centres on potential chilling effects, whereby the autonomy of the few is unduly compromised for the supposed welfare of the majority. This additionally infringes on the principle of minimalism, due to potential human rights inconsistencies.
The first overcriminalisation concern with s 6B is its capacity to attribute liability many steps before the substantive harm. At the extreme, acts of “preparation or planning” may encompass otherwise outwardly innocent actions such as researching van hire prices or downloading a bus timetable online.218 This is concerning as the culpability and harm associated with the conduct will vary depending on the plan’s progression. At an early stage, conduct may have minimal impact on the overall completion of the plan. Moreover, the individual’s intentions may also “remain vague and conditional”, lacking strong commitment to carrying out the planned offence.219 Thus, criminalising such conduct likely yields limited benefits in terms of prevention and ensuring a censuring response.220
216 Andrew Cornford “Terrorist Precursor Offences” (2020) 8 Crim Law Rev 663 at 669.
217 Bernadette McSherry “Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws” [2004] UNSWLawJl 26; (2004) 27 UNSWLJ 354 at 366.
218 Cornford, above n 216, at 666.
219 At 669.
220 At 669.
It must be noted that a series of preparatory actions aimed at committing a serious crime is inherently more culpable than actions aimed at committing a minor offence.221 In this context, the seriousness of a “terrorist act” is far from insignificant. Nonetheless, if the conduct in question holds little significance to the overall commission of the offence, it appears illogical for the gravity of the offence alone to automatically justify the criminalisation of such conduct.222 Helpfully, recent research has shed light on the general planning cycle of would- be-terrorists.223 According to these insights, there are compelling grounds to criminalise acquiring weapons, building bombs, or final recruitment for attacks.224 In contrast, the grounds for criminalising meetings, communications, research into targets or even terrorist training are far weaker.225 Consequently, drawing from the limited available research, there seems to be minimal practical justification for imputing liability to early-stage preparation.
An additional concern stemming from the attribution of liability to early-stage preparation under s 6B pertains to its intention requirements. At early stages, distinguishing intention from mere “desires, wishes, or fantasies” poses significant challenges.226 As noted above, s 6B does not necessitate evidence of a specific target, location, date, or time for the intended “terrorist act”.227 Thus, it merely requires the presence of some general intention to commit a “terrorist act”. Furthermore, at early stages, this intention may remain conditional, and liability may be attributed where numerous conditions are yet to be met and the likelihood of obtaining them very low.228 As a result, one may be convicted of this offence without direct involvement in any specific plot and with a lack of clear likelihood of such involvement.
Practical concerns emerge with proving early-stage intention, as there may be no credible statement of terrorist intent, nor can it be inferred from the innocuous acts of preparation themselves. Thus, the admissibility of circumstantial evidence has proved crucial in other
221 Daniel Ohana “Desert and Punishment for Acts Preparatory to the Commission of a Crime” (2007) 20 CJLJ 113 at 139.
222 At 140.
223 Cornford, above n 216, at 670.
224 At 670.
225 At 670.
226 Larry Alexander and Kimberly Kessler Ferzan “Risk and Inchoate Crimes: Retribution or Prevention?” in GR Sullivan and Ian Dennis (eds) Seeking Security: Pre-empting the Commission of Criminal Harms (Bloomsbury Publishing, London, 2012) 103 at 111.
227 Terrorism Suppression Act, s 6B(3)(c).
228 Alexander and Ferzan, above n 226, at 111-115.
jurisdictions.229 In a terrorism context, reliance on circumstantial evidence can be concerning due to the shocking nature of terrorist materials.230 Despite research indicating a weak correlation between possessing extremist materials and engaging in extremist behaviour, such evidence has been readily admitted to prove intention in comparable jurisdictions.231 While certain circumstantial evidence, such as terrorist association carries less risk, the issue here revolves around the possibility of unjust convictions stemming from highly prejudicial evidence despite research suggesting its limited probative value.232
Attributing liability for early-stage preparation raises several concerns: the minimal impact of preparatory acts on the ultimate offence, the possible vague and conditional nature of the actor’s intentions, and the potential for prejudicial circumstantial evidence. These concerns collectively heighten the risk of unjust convictions and present significant inconsistencies with the principle of autonomy. As even minor actions could be misconstrued as indicative of terrorist intent, s 6B borders on punishment for thoughts, to which there are well-known objections.233 In turn, this infringes heavily on autonomy by compelling individuals to not only adhere to the law but also to abstain from lawful actions, which in persuasive adversarial hands could be portrayed as acting on wrongful intent. Furthermore, attributing liability for early- stage intention, which may remain conditional or general, denies the individual the opportunity to change their mind. Imputing liability based on early-stage intention denies individuals the “right to control their future”, treating them as though they cannot appropriately guide their own actions.234 Thus, I contend that the capacity of section 6B to encompass early-stage preparation unjustifiably infringes upon autonomy and raises overcriminalisation concerns.
229 See R v Elomar v Ors (No 27) [2009] NSWSC 985 at [15]- [24] for discussion on terrorism related circumstantial evidence in an AU context; and R v Roddis [2009] EWCA Crim 585 for the UK context.
230 For example, beheading footage or similar extremist material can solicit extreme emotional responses from a jury.
231 John Monahan “The Individual Risk Assessment of Terrorism: Recent Developments” in Gary LaFree and Joshua Freilich (eds) The Handbook of the Criminology of Terrorism (Wiley Blackwell, Hoboken, 2017) 520 at 522–523.
232 Jane Goodman-Delahunty “Assessing Unfair Prejudice from Extremist Images in Terrorism Trials” in David Tait and Jane Goodman-Delahunty (eds) Juries, Science and Popular Culture in the Age of Terror (Palgrave Macmillan, London, 2017) 87 at 101.
233 Ashworth, above n 3, at 414.
234 Joseph Raz “The Rule of Law and Its Virtue” (1977) 93 LQR 195 at 204.
The second ground for concern raised by s 6B is its capacity for chilling effects, which are likely to be disproportionately felt by minority communities. Gathering the circumstantial evidence required under s 6B necessitates intrusive investigative techniques. When this is considered in light of the warrantless search powers under s 6B, there exists potential for abuse. As evidenced in overseas jurisdictions, the ramifications of these investigations are likely to be disproportionately felt by marginalised communities whom the authorities already focus on and whose security from criminal justice intervention is already relatively low.235 Thus, these concerns are particularly relevant to NZ’s Māori and Muslim communities.
These communities will feel the brunt of the loss of autonomy, forced to avoid innocent activities that may raise authorities’ suspicions. This further alienates individuals who are already on the margins of society and can lead to disheartening situations where innocent actors are unjustly subjected to the condemnatory power of the state.236 An extreme example is Rizwaan Sabir, a university student in the United Kingdom (UK), who downloaded an Al- Qaida training manual from a government website while researching his thesis. He subsequently found himself imprisoned for several days on suspicion of “preparing” an act of terrorism.237
While s 6B’s restriction on autonomy may be justified on a harm-prevention basis, the resulting distribution of liberty is highly inequitable.238 It represents an “inter-personal trade-off” wherein the autonomy of the few is sacrificed to ensure the welfare, or perceived welfare, of the many.239 While one may argue that those who stand to lose their liberty under s 6B are only those who pose the risk of harm, in the current preventive climate, “we are more likely to over- predict potential terrorists, causing hardship to those wrongly identified as posing a risk”.240 Furthermore, the Government has previously demonstrated a willingness to target marginalised communities under the TS Act. The last expansion of counter-terrorism powers under the TS Act saw the Police conduct “illegal surveillance and unlawful and unreasonable raids” against
235 Cornford, above n 216, at 669.
236 Additionally, those who are alienated by these provisions may be driven to behave in ways that they would not have otherwise, thereby creating risks where none formerly existed: Bayne, above n 185, at 29.
237 Ashworth and Zedner, above n 178, at 105.
238 At 104.
239 Jeremy Waldron Torture, Terror, and Trade-offs: A Philosophy for the White House (Oxford University Press, United States, 2010) at 12.
240 Lynch, Macdonald, and Williams, above n 180, at 60.
Māori communities in Tūhoe. 241 Greens Member of Parliament (MP) Teanau Tuiono, personally affected by these events, noted in the House that these events had “a very chilling effect across Aotearoa”.242
The preceding discussion also raises concerns about whether human rights are sufficiently respected under s 6B, as individuals may be targeted based on their race or their association with others identified as risks. Consequently, there is a potential conflict between s 6B and fundamental principles such as freedom of association and freedom from discrimination.243
When considering lessons learnt from similar provisions overseas and our Government’s past actions, it is clear that the powers afforded under s 6B are prone to abuse, and may raise human rights inconsistencies. Therefore, I argue that s 6B’s breadth and associated warrantless search powers represent an unjust encroachment upon the autonomy of minority groups. In a liberal democratic society like NZ, where equality under the law is paramount, the risk of unequal treatment under s 6B raises significant overcriminalisation concerns.
It must be noted that many of these concerns were raised by submitters during the Bill’s consideration. The Impact Assessment and the Departmental Report for the Justice Committee expressed the belief that these risks were low.244 They pointed to several safeguards, including the requirement of the Attorney-General’s consent to prosecute and the evidential and public interest tests outlined in the Solicitor-General’s Guidelines.245 Furthermore, the Departmental Report explicitly mentioned that “the risk of overcriminalisation is reduced by ... the need for concurrent terrorist intent and motivation while the planning ... is occurring”.246 While these requirements go beyond some comparable jurisdictions and thus prima facie provide a degree of protection against misuse, I doubt their effectiveness in addressing the significant risks outlined above. Whether they do so in practice remains to be seen.
241 Ministry of Justice “Departmental Report for the Justice Committee: Counter-Terrorism Legislation Bill” (August 2021) at 27.
242 (29 September 2021) 754 NZPD (Counter-Terrorism Legislation Bill - Third Reading, Teanau Tuiono).
243 New Zealand Bill of Rights Act 1990 (NZBORA), ss 17 and 19.
244 Ministry of Justice, above n 241, at 71; and Ministry of Justice Impact Statement: Strengthening New Zealand’s Counter-Terrorism Legislation (24 November 2020) at 39.
245 Ministry of Justice Impact Statement: Strengthening New Zealand’s Counter-Terrorism Legislation (24 November 2020) at 39.
246 Ministry of Justice, above n 241, at 71.
While some may believe that the overcriminalisation risks are minimal or adequately addressed, s 6B’s manner of introduction remains concerning. It represents a significant expansion of our criminal law, hurried through the legislative process in response to a potentially unfounded moral outcry. I concur with the Act party’s opposition to the Bill; it appears that those who rushed this legislation were “more interested in perception than pragmatism”.247 Therefore, the new preparatory offence under the TS Act serves as a valuable illustration of unprincipled criminal law expansion.
The final example of unprincipled expansion in NZ’s criminal law relates to the civil forfeiture process under the Criminal Proceeds Recovery Act 2009 (CPRA).248 Legislatively classified as a civil mechanism, this example differs from those previously discussed, technically residing outside the criminal law. However, I contend that despite its civil label, it is essentially criminal in nature. Therefore, due to its inconsistencies with several fundamental principles of criminal law, it raises overcriminalisation concerns. To explore this expansion, the civil asset forfeiture process and the legislative process that led to its introduction will be outlined. Following this, an analysis will be conducted to determine whether the CPRA can justifiably be classified as a civil law mechanism. Finally, based on the conclusion that it is essentially criminal in substance, the resulting overcriminalisation concerns will be discussed.
The principal feature of the CPRA is the civil forfeiture regime, which enables the seizure of the property or proceeds of crime. It features two key types of orders: restraining orders, which temporarily preserve the property under the Official Assignee of NZ’s control,249 and civil forfeiture orders, which permanently transfer property ownership to the Crown.250 For brevity, this outline will focus on civil asset forfeiture.251 At the outset, it is helpful to address “tainted property” and “significant criminal activity” as defined by the CPRA. Tainted property is
247 Counter-Terrorism Legislation Bill 2021 (29-1) (select committee report) at 6.
248 CPRA, ss 43-69.
249 Subpart 2.
250 Subject to orders for relief from civil forfeiture (ss 61-69), and the resolution of any appeals.
251 The CPRA also governs instrument forfeiture orders (ss 70-79) and profit forfeiture orders (ss 55-57).
property that has, wholly or in part, been derived from significant criminal activity.252 Significant criminal activity is an activity that, if proceeded as a criminal offence, would amount to offending that is punishable by a maximum term of imprisonment of 5 years or more or from which property, proceeds, or benefits of a value of $30,000 or more have been acquired, irrespective of whether the person has been charged or convicted in connection with the activity.253
The Criminal Proceeds (Recovery) Amendment Act 2023 divided asset forfeiture orders into types 1 and 2.254 Both are made by application of the Commissioner to the High Court,255 and are determined based on the civil standard of proof, the balance of probabilities.256 The High Court must grant a type 1 order if it is satisfied that the property in question is tainted.257 Whereas type 2 asset forfeiture orders must be granted if the High Court is satisfied that:258
An organised crime group is defined as a group of three or more people who aim to obtain a material benefit from significant criminal activity.259 Notably, an “associate” is broadly defined as a person associated with a member or participant who is more than a “mere acquaintance”.260 When a type 2 order is granted, the share of the property that could not have been acquired by
252 Section 5.
253 Section 6(1)-(2).
254 Criminal Proceeds (Recovery) Amendment Bill 2023 (81-3) (explanatory note) at 2.
255 CPRA, ss 50(1) and 50A(1).
256 Sections 50(1) and 50C(1).
257 Section 50(1). Note that under s 50(2A) the property is presumed to be tainted if its shown that the respondent failed to comply with or made a misleading statement in purporting to comply with, a disclosure of source order (s 109A).
258 Section 50C(1).
259 Section 5A(3). A “material benefit’ is defined in s 5A(4) as any privilege, pecuniary advantage, property, or other valuable consideration of any kind.
260 Section 5A(1).
the respondent legitimately is forfeited to the Crown.261 A reverse onus applies for both orders, wherein the respondent can prove that the specific property (or part of that property) is not tainted.262 In any case, the Court has the discretion not to grant an order if it is “not in the interests of justice” to do so.263
In summary, the CPRA enables forfeiture of “tainted property”. The recent amendments have expanded such capabilities to allow seizure where it is deemed that an “associate” had no legitimate means of acquiring the property in question. In either case, no charge or conviction is required, and linkage to “significant criminal activity” must only be more likely than not.
The CPRA was introduced as a response to the shortcomings of its predecessor, the Proceeds of Crime Act 1991 (PCA). The PCA faced criticism for only allowing forfeiture upon criminal conviction.264 It also required an evidentiary link between criminal activity and the property, commonly resulting in the seizure of the instruments of crime rather than the proceeds.265 This led to challenges when dealing with leaders of organised crime, who were difficult to convict.266 These perceived failures of the PCA led to discussion for reform, and in late 2003, the Ministry of Justice began a full review of the forfeiture process.267
Whilst the Ministry suggested reforming the PCA, the Minister favoured pursuing a complete overhaul, with the introduction of civil forfeiture.268 By 2007, the Criminal Proceeds Recovery Bill was introduced to the House,269 with its digest noting that analogous jurisdictions were confiscating significantly more assets via civil forfeiture regimes.270 Subsequently, it received
261 Section 50C(4).
262 Sections 50(2B) and 50C(2)(a).
263 Sections 50(2D) and 50C(2)(b).
264 Letter from Warren Young (Deputy Secretary Crime Prevention and Criminal Justice) to Phill Goff (Then- Minister of Justice) regarding the Proceeds of Crime (6 November 2003) at 5 (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
265 At 7.
266 At 5.
267 Ministry of Justice Proceeds of Crime Act 1991: Review of Operational Effectiveness (Wellington, 2003) at 1 (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
268 Peter Wright “Criminal Punishment without Civil Rights: The Criminal Proceeds and Instruments Bill’s Punitive Sanctions” 36 VUWLR 623 at 628.
269 Cabinet Minute “Additional Item: Proceeds of Crime: Development of a Civil Forfeiture Regime” (15 March 2004) CAB 8/18 (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
270 Criminal Proceeds (Recovery) Bill 2007, Bills Digest No. 1496 (13 March 2007) at 1.
royal assent in early 2009. Recently, the Criminal Proceeds (Recovery) Bill 2023 was introduced in response to the “considerable success of the CPRA”,271 which had forced organised crime groups to reorganise their affairs to evade the original asset forfeiture orders.272
Thus, the CPRA introduced a civil process for targeting organised crime in response to the perceived failures of the PCA, bringing NZ in line with analogous jurisdictions.
As noted above, the rationale for civil asset forfeiture mechanisms, lies in the ability of organised crime leaders to delegate responsibility for implementing illegal acts, thereby obscuring their involvement in criminal activity.273 This predicament is evidenced in the preceding debates on the CPRA, where the need to be “a lot more creative as law drafters” was identified.274 Subsequently, despite the stated objective of reducing organised criminal activity, the CPRA was posited in the civil realm.275 Thus, substantially reducing the burden on the state by lowering the standard of proof, and avoiding the special procedural protections afforded to criminal defendants under the New Zealand Bill of Rights Act (NZBORA).276
In other jurisdictions, Courts have consistently affirmed the civil nature of these proceedings.277 In doing so, they portray the process as “in rem”, wherein it is the property proceeded against “as though it were conscious” rather than the alleged wrongdoer.278 In these cases, courts have defined crimes as “offences against the community at large”, requiring mens rea and following a process that may include detention, search, charge, and bail.279 Applying these criteria, forfeiture procedures are found to lack “the characteristics of a criminal prosecution”, with civil forfeiture deemed “no part of the punishment for [a] criminal offence”.280 As noted by
271 Hon Kiri Allan “New laws will crack down on gang profits and criminal assets” (press release, 28 March 2023).
272 Criminal Proceeds (Recovery) Amendment Bill (81-3) (explanatory note) at 2.
273 Liz Campbell “The Recovery of ‘Criminal’ Assets in New Zealand, Ireland and England: Fighting Organised and Serious Crime in the Civil Realm” (2010) 41 VUWLR 15 at 16.
274 (31 March 2009) 653 NZPD 2189.
275 CPRA, s 3.
276 NZBORA, ss 21-26.
277 Campbell, above n 273, at 23, provides the following as examples: M v D [1998] 3 IR 175 at 178; Gilligan v
Criminal Assets Bureau [1997] IEHC 106; [1998] 3 IR 185 (SC); Raimondo v Italy [1994] ECHR 3; (1994) 18 EHRR 237 (ECHR); United States v
One Assortment of 89 Firearms [1984] USSC 39; 465 US 354 (1984); United States v Ursery [1996] USSC 69; 518 US 267 (1996).
278 Various Items of Personal Property v United States [1931] USSC 55; 282 US 577 (1931) at 581.
279 Melling v O'Mathghamhna [1962] IR 1 (SC).
280 See Gilligan v Criminal Assets Bureau, above n 277, at 217.
Campbell, this is somewhat circular logic, given that many of these features are absent primarily due to the legislature initially categorising the forfeiture process as civil.281 For example:282
...while the lack of detention ... may be cited as evidence that the proceedings are not criminal, the initial classification of the process as civil ... has resulted in the fact that an individual may not be detained.
Before the CPRA’s enactment, the NZ Court of Appeal assessed the status of the PCA in R v Brough.283 The Court concluded that since individuals have no rightful claim to the unlawfully acquired property, confiscating such assets does not constitute punishment, and therefore civil forfeiture is not a criminal process.284 However, contrarily, the Supreme Court recently accepted that there “may be an argument” for the forfeiture regime under the CPRA being criminal in nature.285 Whilst they were unable to grant leave for appeal as the argument had not been advanced in the courts below,286 this recognition by our highest appellate court potentially opens the door for other respondents to advance similar arguments. The outcome of such attempts remains uncertain.
In summary, various justifications have been offered for classifying forfeiture processes like the CPRA as civil, mainly centring on the absence of key criminal process elements. I assert that these reasons lack substantiation, and in actuality the CPRA is a form of criminal sanction masquerading in the civil domain. This contention hinges on three pivotal factors: the de facto determination of guilt, alignment with the traditional objectives of the criminal law, and the associated stigmatisation.
As noted in Part II, assessing the defendant’s blameworthiness distinguishes the criminal sanction from its civil counterpart. While UK and Irish courts have leaned on the property-
281 Campbell, above n 273, at 23.
282 At 23.
283 R v Brough [1995] 1 NZLR 419 (CA).
284 At 423.
285 Zhou v Commissioner of Police [2023] NZSC 124 at [9].
286 At [9].
centric in rem classification and thus the absence of mens rea to categorise the forfeiture process as civil, Bishop’s observation in 1858 remains strikingly relevant:287
Disguise the matter as we may, ...if the intent which the owner of the property carries in his bosom is the gist of the thing on which the forfeiture turns, then the question is one of the criminal law...
Property forfeiture under the CPRA rests on whether it was acquired due to “significant criminal activity”, necessitating evidence linking the respondent to the alleged criminal conduct. While the court need not establish guilt beyond a reasonable doubt, the respondent’s level of culpability remains central to the forfeiture process.288 Thus, when an asset forfeiture order is issued, it effectively represents an “indirect finding of guilt”.289 This idea is supported by the court’s authority to provide relief should a person prove an interest in the property without involvement in “significant criminal activity”.290 Furthermore, the court may grant relief based on “undue hardship”.291 Grounds for determining “undue hardship” include the individual’s knowledge and the circumstances of the alleged criminal activity—both factors, which, to an extent, demand an assessment of their culpability.292 Therefore, an order effectively represents a “de facto” finding of guilt, indicating the civil forfeiture process serves the purposes of the criminal law.293
As stated in Part II, the “central distinguishing aspect of the criminal process appears to be the stigmatisation of the morally culpable”.294 The formal consequence of an asset forfeiture order is financial loss, a result typical in both civil and criminal sanctions. However, under the CPRA, the pecuniary penalty is intrinsically tied to the underlying criminal conduct.295 Consequently, even in the absence of a formal conviction, an asset forfeiture order will likely convey a similar
287 Joel Bishop Criminal Law (1858) at 703, cited in Tamara Piety “Scorched Earth: How the Expansion of Civil Forfeiture Doctrine Has Laid Waste to Due Process” (1991) 45 U Miami L Rev 911 at 942.
288 Campbell, above n 273, at 25.
289 At 25.
290 CPRA, s 66.
291 Section 67.
292 Section 67(2).
293 Campbell, above n 273, at 25.
294 Kadish, above n 11, at 437.
295 Wright, above n 268, at 634.
message to the community as a conviction, resulting in the respondent likely experiencing similar associated stigma.296
While the purpose section of the CPRA excludes punishment, it likely serves several of the traditional aims of criminal law, including condemnation, retribution and deterrence.297 Thus lending weight to the CPRA being classified as a criminal process.
As Part II outlined, a defining characteristic of criminal law is the censure and condemnation accompanying a conviction; which marks out the criminal law’s special social significance.298 Whilst the CPRA does not involve conviction, a determination that an individual’s property has been accrued from illegal activity likely carries moral responsibility and social blame, condemning the individual in question for their actions.299 This sentiment is echoed by discussions in the House, where it was emphasised that the CPRA sends a “message that we will not tolerate ... that sort of behaviour”.300 Thus, the civil forfeiture process likely serves as condemnation for those involved or associated with criminal activity.
Another commonly argued theory is retribution, wherein once wrongful and culpable conduct has occurred, a measure of hard treatment may be rightfully dispensed as a deserved response.301 The CPRA’s ability to target property derived, directly or indirectly, from criminal activity likely exceeds a mere regulatory approach. 302 Therefore, it can be viewed as a response to the “moral imbalance” caused by the individual’s alleged criminal activity.303 Whilst it may be argued that asset forfeiture is not a form of retribution, as the offender in question has no right to property obtained illegally, statements from the House suggest otherwise. Concerning the recent amendments, it was stated that the goal was to ensure that “individuals cannot and should not profit from crime and that serious consequences follow when they do”, reflecting
296 At 634.
297 CPRA, s 3.
298 Ashworth and Horder, above n 66, at 1.
299 Campbell, above n 273, at 28.
300 (31 March 2009) 653 NZPD 2189.
301 Simester and Brookbanks, above n 15, at 1.3.3.
302 See Campbell, above n 273, at 27 where the argument that these processes are purely remedial or reparative in nature is refuted.
303 Simester and Brookbanks, above n 15, at 1.3.3.
the inherent condemnation and retributive elements of the CPRA.304 Finally, one of the CPRA’s stated purposes is to “deter significant criminal activity”.305 While Part II noted that both civil and criminal sanctions can serve deterrent ends, the CPRA explicitly seeks to deter criminal behaviour, thereby serving another of the traditional aims of the criminal law.
In light of the preceding discussion, it becomes evident that the civil forfeiture process possesses inherent criminal characteristics. The process aligns with several objectives of the criminal sanction, and the issuance of a forfeiture order essentially functions as a de facto finding of guilt, carrying comparable stigma to a criminal conviction. Therefore, regardless of the label Parliament affixes to the CPRA, its true essence is likely criminal.
The civil forfeiture regime takes a heavy welfare-based approach, easing the burden on the state whilst foregoing several fundamental principles of procedural fairness. Combatting organised crime is undoubtedly a commendable goal. However, I argue that deliberately disregarding the criminal law’s normative constraints raises valid overcriminalisation concerns.
The CPRA’s lower standard of proof may impose a de facto criminal sanction on an individual, whilst a reasonable doubt may remain as to their guilt.306 This contradicts the fundamental right of the accused to be presumed innocent.307 As aforementioned, the condemnation and stigma associated with an asset forfeiture order are likely akin to those accompanying a criminal sanction. Therefore, they have the potential to profoundly impact an individual’s life. The presumption of innocence protects against “error[s] in the process”, which could lead to the unfair imposition of these consequences.308 Additionally, the reverse onus under the CPRA contrasts with the typical criminal burden of proof, where it is the State’s responsibility to demonstrate the defendant’s guilt.309 This effectively compels the respondent to prove their innocence by disproving any involvement in criminal activity. As the CPRA essentially
304 (7 March 2023) 766 NZPD (Criminal Proceeds (Recovery) Amendment Bill - Second Reading, Arena Williams).
305 CPRA, s 3(2)(b).
306 Wright, above n 268, at 635.
307 NZBORA, s 25(c).
308 Ashworth and Horder, above n 66, at 71.
309 CPRA, ss 50(2B) and 50C(2)(a).
constitutes a criminal sanction, the presumption of innocence ought to apply until it is proven, beyond a reasonable doubt, that an individual’s actions warrant the potentially significant consequences.
The presumption of innocence also serves as a crucial “counterweight to the immense power and resources of the State compared to the position of the defendant”.310 While civil law proceedings typically regulate interactions between private parties, CPRA proceedings are initiated by an agent of the state.311 This direct link between law enforcement and civil forfeiture under the CPRA accentuates the need for protective rights, with respondents facing the “might of the state”.312
As initially highlighted by the Ministry of Justice, the less burdensome requirements may be viewed as an easier alternative to criminal prosecution.313 This raises concerns that resources will shift from investigating organised criminal activity to assets subject to civil forfeiture proceedings.314 The Police argue that organised crime groups are the “most culpable defendants” who commit the “most damaging wrongs”.315 If civil forfeiture is the preferred route, it could lead to undercriminalisation, wherein the most deserving of the criminal sanction are targeted civilly rather than via the rightful criminal avenue. Separate bodies for recovery have been established overseas to alleviate this feared conflict of interest between the “primary responsibility to exercise prosecutorial discretion in the public interest” and the “recovery of profit”.316 This conflict under the CPRA may undermine the Act’s purpose “to reduce organised criminal activity”.317
The recent amendments which expand forfeiture powers to “associates” raise further inconsistencies with the principle of minimalism and respect for human rights. Not only is “associates” poorly and broadly defined, but it engages the right of association. This, in turn,
310 Ashworth and Horder, above n 66, at 71.
311 They are initiated by the Police Commissioner: CPRA, ss 50(1) and 50A(1).
312 Campbell, above n 273, at 29.
313 Letter from Warren Young (Deputy Secretary Crime Prevention and Criminal Justice) to Phill Goff (Then- Minister of Justice) regarding the Proceeds of Crime (11 March 2004) at 24 (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
314 Wright, above n 268, at 639.
315 Kenneth Mann “Punitive Civil Sanctions: The Middleground between Criminal and Civil Law” (1992) 101 YLJ 1795 at 1863.
316 Young, above n 313, at 27.
317 CPRA, s 3.
infringes on individual autonomy by reducing one’s right to move freely in society, choosing to associate with those of their choosing. The “interests of justice” provision has been identified as somewhat of a “backstop” provision for the protection of these rights, allowing for the court’s discretion in granting an order.318 However, this again represents a vague and broad term, further exacerbating excessive discretion overcriminalisation concerns.
An “ends justifies the means” attitude permeates debates on the CPRA as it provides a comparatively easier avenue for addressing organised crime. Functioning as a substantial revenue generator, it conceals the unprincipled nature of its proceedings behind a facade of being “tough on crime” and by contributing significant revenue to communities. Since the CPRA’s introduction, over $1 billion in assets have been recovered, with NZ seizing more than four times the global average annually.319 This “incentivisation”, stimulates the vigorous pursuit of civil asset recovery.320 Therefore, despite the NZ regime already being highly successful, the recent amendments expanded the powers of the State even further, amplifying the above risks.
Ultimately, the CPRA alleviates the difficulties associated with the criminal justice system in general.321 Pursuing significant criminal activity is onerous, prompting the State, on a welfare basis, to harness the civil realm to achieve the ends of the criminal process. However, this approach comes at the expense of several fundamental principles of criminal law, resulting in an excessive emphasis on welfare and giving rise to overcriminalisation concerns.
318 (7 March 2023) 766 NZPD (Criminal Proceeds (Recovery) Amendment Bill - Second Reading, Chris Penk). 319 Jared Savage “Gangs, organised crime figures targeted in proposed change to strengthen criminal proceeds law” The New Zealand Herald (online ed, New Zealand, 5 January 2022).
320 Campbell, above n 273, at 34.
321 Wright, above n 268, at 641.
The above scrutiny of three instances of expansion revealed varying inconsistencies with the normative boundaries of the criminal law. While this analysis was limited to three examples, cumulatively they illustrate a wider trend of unprincipled expansion, indicative of overcriminalisation. This Part will highlight notable similarities between each example and discuss the possibilities of a solution.
Two notable similarities shared by the three examples warrant discussion: their populist-driven nature and the problematic way they were introduced. These similarities effectively demonstrate the heightened risks of overcriminalisation when the criminal law is harnessed as a political tool and when back-door methods are used to ensure enactment.
The introduction of s 231A followed extensive media coverage,322 heightened public awareness, and lobbying by influential farming groups in relation to the perceived “rural crime crisis”, all likely exerting substantial pressure on the government to provide a response.323 Against this backdrop, and considering that the recorded data actually showed a decline in rural theft victimisations, it appears increasingly plausible that s 231A was aimed at appeasing rural voters.324 Augmenting this possibility is the Bill’s late introduction as a SOP, circumventing the usual process, and resulting in only confidential, targeted consultation.325 Remarkably, those responsible were brazenly triumphant about circumventing the usual process. As stated by McAnulty during the Bill’s third reading:326
322 Gavaghan and Briggs, above n 120, at 448 citing Editorial “Farm burglaries behind rising crime statistics” The Waikato Times (online ed, New Zealand, 3 April 2012); Sue O’Dowd “Taranaki rural crime issues reach the top” (14 May 2015) Stuff <www.stuff.co.nz>; Editorial “Rustlers face long jail time” The Waikato Times (online ed, New Zealand, 18 December 2018); and Kristin Edge “Man charged with rural burglary after entering forest” The Northern Advocate (online ed, New Zealand, 8 July 2019).
323 Federated Farmers had been extensively lobbying for several years. This lobbying “paid off” when then- Justice Minister Andrew Little agreed to fast-track the Bill: Simon Edwards “Rural crime on the rise for Kiwi farmers” Feds News (online ed, New Zealand, May 25 2021).
324 Ministry of Justice Regulatory Impact Assessment: Addressing the theft of livestock rustling in New Zealand (18 December 2018) at 6. The Ministry highlighted that this discrepancy may be attributable to underreporting by victims.
325 Gavaghan and Connell, above n 137.
326 (5 March 2019) 736 NZPD (Crimes Amendment Bill - Third Reading, Kieran McAnulty).
... I thought, why don't we try and include this in a [SOP] ...I did it on the quiet ... [and] went to the people that give us advice, and I said, "Can we do it?" And they said no, because the [Bill] is about withdrawing things; it's not about including things. ... However, if we got the approval from every party in the House, then we could do it.
This reveals a deliberate choice to bypass thorough consultation and scrutiny, leading to overbreadth overcriminalisation. At a minimum, this evidences a naivety to the gravity of their actions, but could also be interpreted as the deliberate use of back-door methods to facilitate populist-driven, unprincipled expansion.
Section 6B also demonstrates circumvention of the usual process. Following a tragic terrorist attack, the media picked up on a failed attempt to charge the would-be attacker for “preparing” a terrorist act, causing public outrage.327 The provision was subsequently fast-tracked, despite the low likelihood of the amendments having any practical impact on the event in question. What followed was a substantial shortening of the select committee process and less opportunity for thorough debate before a radical expansion of the criminal law.328 The highly politicised context, combined with its circumvention of the usual democratic process, suggests s 6B can also be interpreted as an expansion driven by a desire to shape public perception.
Lastly, the CPRA’s introduction is preceded by legislative debates grappling for a response to the rise of organised crime, identifying a “need to be a lot more creative as law drafters”.329 Creative they were, labelling a criminal process as civil, easing the burdens of the criminal process. Notably, the recent amendments align with extensive media coverage on gang activity during an election year,330 with concerns raised about the speed of its introduction leading to
327 Sam Sachdeva “The ‘Achilles heel’ exposed by Auckland terrorist” (4 September 2021) Newsroom
<https://www.newsroom.co.nz>; Catrin Owen “Man shot dead after stabbing at mall had been sentenced for possessing Isis propaganda” (3 September 2021) Stuff <www.stuff.co.nz>; Sarah Robson “LynnMall attacker spent years under watchful eyes” (6 September 2021) Radio New Zealand <www.rnz.co.nz>.
328 Russel Palmer “Greens, ACT urge caution over counter-terrorism laws” (7 September 2021) Radio New Zealand <www.rnz.co.nz>.
329 (31 March 2009) 653 NZPD 2189.
330 See for example: Anneke Smith “Civilians at risk as gang members target wrong addresses in drive-by shootings, report shows” (28 March 2023) Radio New Zealand <www.rnz.co.nz>; Felix Desmarais “Crime needs 'sticks' as well as 'carrots' - Luxon” (July 5 2023) 1News <www.1news.co.nz>; and “Gangs making hundreds of millions in illegal drug market research finds” (21 August 2023) Radio New Zealand
substandard consultation.331 The populist nature of this expansion is evident; allowing Parliament to showcase its “tough on crime” approach, while advertising the millions of “ill- gotten” gains being reinvested into the community.332 Consequently, the CPRA and its recent amendments also illustrate the use of back-door methods to facilitate expansion, or perhaps pseudo-expansion, of the criminal law for public perception.
As emphasised by Ashworth, it is crucial “to resist the idea that the criminal law is simply another tool that legislatures may use to further whatever [desired] purposes”.333 In varying ways, each example illustrates the consequences of legislating under this premise. Unprincipled expansion for the sake of public approval, facilitated by “back-door” introductory methods heightens the risk of overcriminalisation. These examples demonstrate a worrying trend in which prudent and principled expansion of the criminal law is taking a back seat to short-term political gains. Legislators are increasingly expanding the criminal law whilst failing to acknowledge the broader implications of their actions.
Structurally, the criminal law should resemble a finely tuned code, upholding the ROL values of clarity, accessibility, and certainty, thereby enabling citizens to structure their lives following its prescriptions. Unprincipled expansion in one area of the criminal law has a domino effect, knocking other areas out of sync, ultimately leading to the loss of overall consistency. Therefore, it is paramount for legislators to consider the broader implications of their actions rather than utilising the criminal law “indiscriminately and pragmatically for political ends”.334
It is worth noting that these are far from new warnings. Similar sentiments are evidenced as far back as 1971 in Adam’s discussion on property offences before the Criminal Code Act 1893 (CCA).335 He noted that the CCA and subsequent Crimes Acts were “masterful simplifications
331 (27 September 2022) 763 NZPD (Criminal Proceeds (Recovery) Amendment Bill - First Reading, Paul Goldsmith).
332 Jeremy Wilkinson “Criminals pay $30 million for community programmes through confiscated assets” New Zealand Herald (online ed, New Zealand, 6 May 2022).
333 Ashworth, above n 3, at 408.
334 Lacey, above n 31, at 26.
335 Francis Boyd Adams Criminal Law and Practice in New Zealand (2nd ed, Sweet & Maxwell, Wellington, 1971) at 442.
and ameliorations” of the “massive complex of common and statute law” that had preceded them.336 Regrettably, the trend identified throughout this dissertation is steering us back towards a criminal law that is similarly “cumbrous, illogical, and inadequate”.337
A more recent example can be found within the Law Commission’s discussion on the introduction of overlapping victim-specific assault offences.338 They highlighted the risk of “ad hoc specific offences being randomly inserted ... every time an issue arises that causes political or public concern”.339 Furthermore, they pointed out that this risks a “slippery slope effect”, wherein the temptation to add more offences becomes difficult to resist.340 In the broader context at hand, if the current trajectory persists, we risk our criminal law devolving from a structured code into a disjointed “patchwork” of legislation.341 Much like a “slippery slope”, unprincipled expansion has become all too familiar to the legislature, potentially fostering contempt. Therefore, it is likely to persist unless the boundaries of the criminal law are duly respected.
Finally, it is crucial to note other jurisdictions where overcriminalisation concerns are even more pronounced, as they provide valuable warnings of the consequences of unchecked unprincipled criminalisation. For instance, the problem is so severe in the US that there is no definitive figure of criminal laws, leading to criminal codes that are cluttered to the point of being “barely intelligible”.342 Given the concerning trend in our own backyard, we ought to take heed of the warnings raised overseas.
NZ’s unicameral constitutional framework presents a significant hurdle in addressing this trend of unprincipled criminal law expansion. Our system, characterised by an unwritten constitution and a highly centralised government possessing formally unlimited legislative authority,343
336 At 442.
337 At 442.
338 New Zealand Law Commission Review of Part 8 of the Crimes Act 1961: Crimes Against the Person (NZLC R111, 2009).
339 At 31.
340 At 31.
341 At 31.
342 Husak, above n 4, at 273.
343 Andrew Geddis “Parliamentary government in New Zealand: Lines of continuity and moments of change” 14 Int J Const Law 99 at 99.
lacks the “hard-law” constraints observed in many comparable jurisdictions. In such jurisdictions, legislatures are often bound by supreme constitutions or feature an upper house, thereby benefiting from the “checks and balances” of bicameralism.344 Conversely, in NZ, the only real restraint on the legislature is the electoral cycle, which provides “popular accountability”.345
As a result, a Parliamentary majority can legislate to further whatever desired purposes, provided that they maintain popular support. In light of the conclusions drawn from the above analysis, this raises concerns in the context of criminal law expansion. It has been observed that unprincipled expansion often occurs when Parliament intend to project a “tough on crime stance” for public popularity. Therefore, somewhat ironically, the primary check on Parliamentary power, inadvertently encourages unprincipled expansion. The public generally lacks awareness of the consequences of legislating in this way, making the introduction of new criminal offences, regardless of their justifications, a reliable means of influencing public perception. Therefore, short of a constitutional overhaul, little exists to effectively prevent the legislature from harnessing the criminal law as a political tool.
In the absence of hard-law constraints, one potential measure to mitigate the trend of unprincipled expansion may involve affording greater respect to established soft-law constraints, particularly the LDAC guidelines.346 These guidelines represent the government’s “primary reference for assessing the conformity of legislation with accepted legal principles”.347 They encompass numerous principles, many of which have been discussed throughout this dissertation, that should be considered throughout the legislative process to ensure the creation of high-quality legislation. Officials are responsible for ensuring that MPs are well-informed about the significance of these principles and are clear about any deviations from them during the legislative process.348 Notably, their articulated goal is to provide a set
344 Jacinta Ruru and Jacobi Kohu-Morris “Why te Tiriti should place a limit on the supremacy of parliament” (February 2 2021) The Spinoff <www.thespinoff.co.nz>. For example, the United States is constrained by a supreme constitution and the Senate, the UK by the House of Lords, and Canada by its Senate.
345 Geddis, above n 343, at 100.
346 Legislation Design and Advisory Committee “Legislation Guidelines 2021” (September 2021). These can be found at <www.ldac.org.nz/guidelines>.
347 Cabinet Office Cabinet Manual 2023 at [7.41].
348 Legislation Design and Advisory Committee, above n 346, at 6.
of principles by which the quality of legislation is measured, allowing the public to “hold lawmakers to account”.349 Therefore, the guidelines parallel the central theme of this dissertation, stressing the importance of acknowledging relevant principles and engaging in prudent discussion before passing legislation.
Chapters 1-3 of the guidelines address early legislative design and explain the importance of good quality legislation, echoing many ROL concerns raised throughout, such as clarity and accessibility. Among other considerations, these chapters explicitly recognise the necessity of considering the long-term implications of new legislation and its relationship to existing law.350 Given that the identified trend suggests a failure to contemplate the broader implications of criminal law expansion, elevating the significance of these considerations would serve to reduce the risks of overcriminalisation.
Chapter 24 specifically addresses the criminal law, mirroring many concerns raised throughout the preceding analysis.351 For instance, the first two principles within the chapter detail that compelling reasons must exist to justify criminalisation and that prohibited conduct must be precisely defined.352 The analysed examples present varying inconsistencies with these considerations, given the lack of compelling justifications and the presence of exceedingly broad provisions. I contend that if afforded greater respect, these guidelines would serve as valuable tools for enhancing legislators’ understanding of the importance of underlying principles and encouraging clear and justified reasoning for criminal law expansion.
Since the guidelines represent “soft-law”, they function as aids rather than “hurdles for officials to overcome” or mechanisms to “second guess policy decisions”.353 Consequently, legislators may disregard their considerations in practice, as this analysis has arguably evidenced. While we cannot definitively discern the extent to which these guidelines were followed during each expansion, the resulting inconsistencies with fundamental principles suggest that the LDAC guidelines were not adequately considered throughout the respective legislative processes.
349 At 9.
350 At ch 1-3.
351 At ch 24.
352 At 24.1-24.2.
353 “Guidelines” (12 September 2023) Legislation Design And Advisory Committee <www.ldac.org.nz>.
Thus, a partial solution to this concerning trend may entail treating these guidelines with higher regard to enhance legislators’ awareness of the significance of these issues, thereby promoting a more principled and thoughtful approach to criminalisation.
While identifying an immediate and straightforward solution within our existing constitutional framework poses challenges, this dissertation has highlighted the critical importance of engaging in principled debate and adhering to the customary democratic process when expanding the criminal law. As demonstrated above, neglecting these requirements significantly heightens the risks of overcriminalisation.
While the overcriminalisation conclusions reached throughout are contestable, fostering open and informed debate on these issues is of paramount importance. Throughout the legislative process, it is essential that the relevance and weight of applicable principles are thoroughly considered to ensure that criminalisation is well-justified and to mitigate the risks of overcriminalisation. Legislators need to develop a deeper awareness of the broader implications of their actions, and in this endeavour, the LDAC guidelines serve as a valuable resource. Furthermore, the discussion has underscored the importance of adhering to the customary democratic process. The frequent use of “urgency” in our legislative process has earned it the label of “the fastest law in the West”.354 If the legislature persists in fast-tracking criminal legislation, expected political gains will continue to overshadow the importance of thorough principled justification. Therefore, to address this trend, the legislature must resist the urge to utilise fast-tracking or other back-door methods of introduction in the pursuit of political gain.
Fundamentally, combatting this trend will require greater legislative awareness of the importance of these issues and staunch restraint to resist the urge to harness the criminal law for political advantage. Presently, our criminal law is characterised by an abundance of policy
354 Laura Walters “What’s the rush? Lawmaking in a hurry” (February 24 2021) News Room
<www.newroom.co.nz> citing Geoffrey Palmer Unbridled Power: An Interpretation of New Zealand's Constitution & Government (Oxford University Press, Wellington, 1987) at ch 7.
and a scarcity of principle. However, if diagnosis represents the first step to recovery, acknowledging the current trend will put us on that road.355
355 Healy, above n 34, at xv.
Conclusion
The significance of the criminal law cannot be overstated; it serves as the moral compass of our society. When an individual transgresses its norms and criminal liability is found, it authorises censorious and punitive treatment, which can severely restrict an individual’s personal liberty and ability to “flourish”.356 Therefore, recognising and adhering to justifiable limits is paramount.
This dissertation analysed the new form of burglary (s 231A),357 the preparatory terrorism offence (s 6B),358 and the civil forfeiture regime under the CPRA,359 on a principled basis. Despite context-specific nuances, the analysis revealed a concerning trend of unprincipled expansion, raising overcriminalisation concerns. Each example exhibited notable similarities, likely driven by a desire to shape public perception and being enacted through “back-doors”. While recognising that opinions may differ on whether each constitutes overcriminalisation, the discussion emphasised the minimum requirement of thorough principled discussion before expanding the criminal law. To ensure that such deliberation occurs and to enhance legislative awareness of these issues, the LDAC guidelines, which provide a basic principled framework for assessing legislation, ought to be afforded greater respect.
Finding a definitive solution to this trend within the harsh political realities of criminal law may be challenging, but recognition represents a crucial first step. If this trend persists unchecked, we risk stripping the criminal law of its principled foundations and rendering it incapable of effectively serving our society. Therefore, it is imperative to maintain ongoing awareness of these issues, not only to keep those responsible accountable, but to ensure the enduring integrity of our criminal law.
356 Ashworth, above n 3, at 410.
357 Crimes Act, s 231A.
358 Terrorism Suppression Act, s 6B.
359 CPRA, ss 43-69.
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Cabinet Minute “Additional Item: Proceeds of Crime: Development of a Civil Forfeiture Regime” (15 March 2004) CAB 8/18 (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
Cabinet Office Cabinet Manual 2023.
Criminal Proceeds (Recovery) Bill 2007, Bills Digest No. 1496 (13 March 2007). Counter-Terrorism Legislation Bill (29-1) (explanatory note).
Legislation Design and Advisory Committee “Legislation Guidelines 2021” (September 2021).
Sentencing (Livestock Rustling) Amendment Bill (271-1) (explanatory note).
F. Papers and Reports
Counter-Terrorism Legislation Bill 2021 (29-1): Final Report of the Justice Committee (2021).
Counter-Terrorism Legislation Bill 2021 (29-1) (select committee report).
Ministry of Justice “Departmental Report for the Justice Committee: Counter-Terrorism Legislation Bill” (August 2021).
Ministry of Justice New Zealand Crime and Safety Survey: Main Findings (2014).
Ministry of Justice Regulatory Impact Assessment: Addressing the theft of livestock rustling in New Zealand (18 December 2018)
Ministry of Justice Regulatory Impact Assessment: Strengthening New Zealand’s Counter- Terrorism Legislation (24 November 2020).
Ministry of Justice Proceeds of Crime Act 1991: Review of Operational Effectiveness (Wellington, 2003) (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
New Zealand Law Commission Review of Part 8 of the Crimes Act 1961: Crimes Against the Person (NZLC R111, 2009).
New Zealand Law Commission Strangulation: The Case for a New Offence (R 138, Wellington, NZ, 2016).
Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019 Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 (November 2020).
Sentencing (Livestock Rustling) Amendment Bill 2017 (271-1): Report of the Primary Production Committee (July 2018).
G. Theses / Dissertations
Freya Bayne “Casting a Wide Net Domestic Legislative Responses to Global Threats of Terror” (LLB (Hons) Dissertation, University of Otago, 2016).
Zoë Prebble “Overlapping Criminal Offences and Gendered Violence: What is Overlap and When is it Part of The Problem of Overcriminalisation?” (PhD (Law) Theses, University of British Columbia, 2018).
Rochelle Rolston “Addressing Hate Crime in New Zealand: A Separate Offence?” (LLB (Hons) Dissertation, Victoria University of Wellington, 2019).
H. News Articles
Editorial “Farm burglaries behind rising crime statistics” The Waikato Times (online ed, New Zealand, 3 April 2012).
Editorial “Rustlers face long jail time” The Waikato Times (online ed, New Zealand, 18 December 2018).
Kristin Edge “Man charged with rural burglary after entering forest” The Northern Advocate
(online ed, New Zealand, 8 July 2019).
Simon Edwards “Rural crime on the rise for Kiwi farmers” Feds News (online ed, New Zealand, May 25 2021)
Jared Savage “Gangs, organised crime figures targeted in proposed change to strengthen criminal proceeds law” The New Zealand Herald (online ed, New Zealand, 5 January 2022).
Jeremy Wilkinson “Criminals pay $30 million for community programmes through confiscated assets” New Zealand Herald (online ed, New Zealand, 6 May 2022).
Jeremy Wilkinson “Missing and damaged beehives result in $120k loss for beekeepers, conviction for Greymouth man” The New Zealand Herald (online ed, Palmerston North, 25 August 2023).
Guy Williams “Examining the consequences of convictions” Otago Daily Times (online ed, New Zealand, 11 March 2023).
I. Press Releases
Rt Hon Jacinda Ardern, Prime Minister “Prime Minister’s update on the 3 September Auckland terrorist attack” (press release, 4 September 2021).
Hon Kris Faafoi “Government takes step forward on counter terrorism laws” (press release, 13 April 2021).
Hon Kiri Allan “New laws will crack down on gang profits and criminal assets” (press release, 28 March 2023).
J. Internet Materials
“Auckland mall terrorist attack: New details of supermarket victims - four women, three men, aged 29-77” (5 September 2021) New Zealand Herald <www.nzherald.co.nz>.
Felix Desmarais “Crime needs 'sticks' as well as 'carrots' - Luxon” (July 5 2023) 1News
Colin Gavaghan and Simon Connell “Why we have a beef with the new anti-rustling laws, and perhaps you should too (1 of 2)” (15 March 2019) Pundit <www.pundit.co.nz>.
Colin Gavaghan and Simon Connell “Why we have a beef with the new anti-rustling laws, and perhaps you should too (2 of 2)” (15 March 2019) Pundit <www.pundit.co.nz>.
“Gangs making hundreds of millions in illegal drug market research finds” (21 August 2023) Radio New Zealand <www.rnz.co.nz>.
Andrew Geddis “Would harsher terrorism laws have prevented the mall attack?” (4 September 2021) The Spinoff <thespinoff.co.nz>.
“Guidelines” (12 September 2023) Legislation Design And Advisory Committee
Christopher Luxon “National to toughen sentences to counter crime wave” (25 June 2023) National <https://www.national.org.nz/national>.
Emma Meyer “Horses and Farming: Mustering at Molesworth” (24 November 2008) Te Ara
<teara.govt.nz>.
Sue O’Dowd “Taranaki rural crime issues reach the top” (14 May 2015) Stuff
Catrin Owen “Man shot dead after stabbing at mall had been sentenced for possessing Isis propaganda” (3 September 2021) Stuff <www.stuff.co.nz>.
Russel Palmer “Greens, ACT urge caution over counter-terrorism laws” (7 September 2021) Radio New Zealand <www.rnz.co.nz>.
Sarah Robson “LynnMall attacker spent years under watchful eyes” (6 September 2021) Radio New Zealand <www.rnz.co.nz>.
“Safe and Effective Justice” (18 July 2023) Ministry of Justice
<https://www.justice.govt.nz>.
Sam Sachdeva “The ‘Achilles heel’ exposed by Auckland terrorist” (4 September 2021) Newsroom <https://www.newsroom.co.nz>.
Anneke Smith “Civilians at risk as gang members target wrong addresses in drive-by shootings, report shows” (28 March 2023) Radio New Zealand <www.rnz.co.nz>.
Laura Walters “What’s the rush? Lawmaking in a hurry” (February 24 2021) News Room
Peter Wilson “The Week in Politics: Labour strikes back - who's soft on crime now?” (21 July 2023) Radio New Zealand <https://www.rnz.co.nz>.
K. Letters
Letter from Kathryn Beck (President of the New Zealand Law Society) to Andrew Little (Minister of Justice) regarding Crimes Amendment Bill, SOP 185 – new criminal offences relating to livestock rustling (19 December 2018).
Letter from Stephen Bonnar (Convenor, NZLS Criminal Law Committee) to Stuart McGilvray (Policy Manager, Criminal Law, Ministry of Justice) regarding proposed new offences – unlawfully entering agricultural property and livestock theft (19 October 2018).
Letter from Warren Young (Deputy Secretary Crime Prevention and Criminal Justice) to Phill Goff (Then-Minister of Justice) regarding the Proceeds of Crime (6 November 2003). (Obtained under Official Information Act 1982 Request to the Ministry of Justice). (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
Letter from Warren Young (Deputy Secretary Crime Prevention and Criminal Justice) to Phill Goff (Then-Minister of Justice) regarding the Proceeds of Crime (11 March 2004) (Obtained under Official Information Act 1982 Request to the Ministry of Justice).
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