Criminal Proceeds (Recovery) Act 2009

Reprint as at 1 October 2012

Criminal Proceeds (Recovery) Act 2009

Public Act2009 No 8
Date of assent21 April 2009
Commencementsee section 2
Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This Act is administered by the Ministry of Justice.

Contents

1 Title

2 Commencement

Part 1
Preliminary provisions

Purpose

3 Purpose

Overview

4 Overview

Interpretation

5 Interpretation

6 Meaning of significant criminal activity

7 Meaning of unlawfully benefited from significant criminal activity

Application

8 This Act to bind the Crown

9 Application

Part 2
Criminal proceeds and instruments forfeiture regime

Subpart 1—General provisions

10 Nature of proceedings

11 Restraint not necessary before forfeiture

12 Conversion of restrained property and foreign restrained property

13 No identifiable owner required for certain proceedings relating to specific property

14 Differing grounds for restraining and later forfeiting property

15 No criminal proceedings required for civil forfeiture order or in registering foreign forfeiture order

16 Quashing criminal proceedings does not impact on civil forfeiture

17 Multiple forfeiture orders and foreign forfeiture orders

Subpart 2—Restraining orders

Applying for restraining order

18 Applying for restraining order

19 Application for restraining order to identify proposed restrained property, respondent (if any), and interest holders

20 Court to which application for restraining order made

Applications for restraining order made on and without notice

21 Application for restraining order on notice

22 Application for restraining order without notice

Being heard at hearing for restraining order

23 Who may be heard at hearing for restraining order

Making restraining orders

24 Making restraining order relating to specific property

25 Making restraining order relating to all or part of respondent’s property

26 Making restraining order relating to instrument of crime

Registration of restraining orders

27 Registration of restraining orders on registers

Conditions on restraining order

28 Conditions on restraining order

Undertakings as to damages or costs in relation to restraining orders

29 Undertakings as to damages or costs in relation to restraining orders

Excluding severable interest from restrained property

30 Excluding severable interest from restrained property

31 Excluding severable interest from restrained property when applicant mortgagee

Disposition or dealings set aside from restrained property

32 Certain disposition or dealing set aside from restrained property

Further orders associated with restraining orders

33 Applying for further orders

34 Making further orders

35 Types of further order

36 Impact of certain further orders

Duration of restraining orders and further orders

37 Duration of restraining orders and further orders

38 Duration of restraining order when application for forfeiture order declined

39 Duration of restraining order when application without notice

40 Duration of restraining order relating to instrument of crime in certain circumstances

41 Extending duration of restraining order

42 Additional matters relating to extending duration of restraining order

Subpart 3—Civil forfeiture orders

Applications for civil forfeiture orders

43 Who may apply

44 Application to High Court

Notice and entitlement to be heard in relation to civil forfeiture orders

45 Application for civil forfeiture order on notice

46 Who may be heard at hearing for civil forfeiture order

Matters relating to application for civil forfeiture order

47 Amending application for civil forfeiture order

48 Notice of application for civil forfeiture order may be recorded on registers

Application for assets forfeiture order

49 Application for assets forfeiture order to specify proposed forfeited property, grounds, respondent (if any), and persons with interests (if known)

Making assets forfeiture order

50 Making assets forfeiture order

51 Exclusion of respondent’s property from assets forfeiture order because of undue hardship

Application for profit forfeiture order

52 Contents of application for profit forfeiture order

Making profit forfeiture order

53 Value of benefit presumed to be value in application

54 High Court must determine maximum recoverable amount

55 Making profit forfeiture order

56 Exclusion of respondent’s property from profit forfeiture order because of undue hardship

57 Profit forfeiture order if respondent has absconded

58 Court may treat effective control over property as interest in property

Matters associated with making civil forfeiture order

59 Additional matters in respect of making civil forfeiture order

60 Civil forfeiture order relating to land

Relief from civil forfeiture order for persons other than respondent

61 Person (other than respondent) may apply for relief before civil forfeiture order made or declined

62 Person (other than respondent) may apply for relief for limited period after civil forfeiture order made

63 Application for relief from civil forfeiture order to identify nature and reasons for relief sought

64 Application for relief from civil forfeiture on notice

65 Appearing at hearing for relief from civil forfeiture order

66 Making order for relief from civil forfeiture order where person has interest and was not involved in significant criminal activity

67 Making order for relief from civil forfeiture order on grounds of undue hardship

68 Matters associated with relief from civil forfeiture order when interest severable

69 Matters associated with relief from civil forfeiture order when interest not severable

Subpart 4—Instrument forfeiture orders

Effect of instrument forfeiture order

70 Effect of instrument forfeiture order

71 Additional matters in respect of making instrument forfeiture order

72 Instrument forfeiture order relating to land

Disposal of forfeited property under instrument forfeiture order in certain circumstances

73 Time restraints on disposal of property forfeited under instrument forfeiture order

74 Discharge of instrument forfeiture order on appeal or quashing of conviction

75 Official Assignee may apply for directions regarding discharge of instrument forfeiture order under section 74

76 Double benefit not permitted

Applications for relief relating to instrument forfeiture order

77 Applications for relief from instrument forfeiture order

Third party appeals from instrument forfeiture order

78 Third party appeals from instrument forfeiture order

79 Power of appeal court to vary offender’s sentence

Subpart 5—Official Assignee

Preserving value of certain property

80 Preserving value of certain property

No liability for certain payments

81 Official Assignee not liable for certain payments on certain property

Discharge of assets forfeiture orders by Official Assignee

82 Discharge of assets forfeiture order by Official Assignee

Discharge of profit forfeiture order by Official Assignee

83 Discharge of profit forfeiture order by Official Assignee

84 Bankruptcy in relation to profit forfeiture order

Discharge of instrument forfeiture order by Official Assignee

85 Discharge of instrument forfeiture order by Official Assignee

Discharge of foreign forfeiture order registered in New Zealand by Official Assignee

86 Discharge by Official Assignee of foreign forfeiture order registered in New Zealand

Costs recoverable by Official Assignee

87 Costs recoverable by Official Assignee

Delegation by Official Assignee

88 Delegation by Official Assignee

89 Acting under delegation from Official Assignee

90 Revocation of delegation from Official Assignee

Subpart 6—Role of police

91 Interpretation

Functions of Commissioner of Police

92 Independence

Challenge to exercise of Commissioner's decisions, powers, and duties

93 Effect of proceedings relating to Commissioner's powers and duties

94 Effect of final decision that exercise of powers unlawful

Approval of settlements

95 High Court must approve settlement between Commissioner and other party

Delegation of powers, functions, or duties of Commissioner of Police

96 Delegation of powers, functions, or duties of Commissioner of Police

Outside investigators appointed by Commissioner

97 Exercise of powers by outside investigators

98 Disclosure to Commissioner of Police of information held by Inland Revenue Department

99 Destruction of information supplied under section 98

Subpart 7—Investigative powers

100 Interpretation

Police powers

101 Police may obtain warrant to search for and seize evidence and property

Commissioner's powers

102 Commissioner may obtain warrant to search for and seize evidence and property

103 Commissioner to transfer property to Official Assignee

Production orders

104 Application for production order

105 Court may make production order

106 Application for examination order

Examination order

[Repealed]

107 Power to require attendance before Commissioner, production of documents, etc

Non-compliance with production order or examination order

108 Power to obtain search warrant for non-compliance with production order or examination order

109 Immunity from liability for disclosure of information under this Act

Official Assignee’s powers

110 Official Assignee may apply for warrant to search for and seize property

111 Official Assignee to hold property

112 Return of seized property

113 Retention of seized property if forfeiture order made

General rules about search warrants

114 Application of Part 4 of Search and Surveillance Act 2012

115 Application for search warrant [Repealed]

116 Form and content of search warrant [Repealed]

117 When search warrant is executed [Repealed]

118 Powers conferred by search warrant [Repealed]

119 Powers of persons called to assist [Repealed]

120 Person executing warrant to produce evidence of authority [Repealed]

121 Inventory of items seized [Repealed]

122 Compliance with certain provisions unnecessary in some circumstances [Repealed]

Orders

123 Form and content of orders

Warrants and powers associated with foreign restraining orders and foreign forfeiture orders

124 Warrants associated with foreign restraining orders and foreign forfeiture orders

125 Powers of Commissioner in relation to warrants associated with foreign restraining orders and foreign forfeiture orders

126 Powers of Official Assignee in relation to warrants associated with foreign restraining orders and foreign forfeiture orders

127 Provisions associated with foreign restraining orders and foreign forfeiture orders

Subpart 8—Foreign restraining orders and foreign forfeiture orders

Interim foreign restraining orders

128 Interim foreign restraining order

129 Expiry of interim foreign restraining orders

130 Extending duration of interim foreign restraining order

131 Additional matters relating to extending duration of interim foreign restraining order

Registering foreign restraining orders

132 Who may apply to register foreign restraining order

133 Application to register foreign restraining order made to High Court

134 Provisions of subpart 2 of Part 2 applying to registering foreign restraining orders

135 Effect of registering foreign restraining order in New Zealand

Duration of foreign restraining order and further orders

136 Duration of foreign restraining order registered in New Zealand and associated further orders

137 Extension of duration of registration of foreign restraining order

138 Additional matters relating to extension of registration of foreign restraining order

139 Exclusion of interest from foreign restraining order registered in New Zealand

Registering foreign forfeiture orders

140 Who may apply to register foreign forfeiture order

141 Application to register foreign forfeiture order made to High Court

142 Notice of registration of foreign forfeiture order

143 Provisions of subpart 3 of Part 2 applying to registering foreign forfeiture orders

144 Registering foreign forfeiture order

145 Notice of registration of foreign forfeiture order may be recorded on registers

146 Additional matters in respect of registering foreign forfeiture order

147 Registering foreign forfeiture order relating to land

Relief from foreign forfeiture order registered in New Zealand

148 Relief from foreign forfeiture order registered in New Zealand

149 High Court may grant relief from foreign forfeiture order registered in New Zealand

Subpart 9—Miscellaneous

Offences

150 Contravention of restraining orders or foreign restraining orders

151 Contravention of forfeiture orders or foreign forfeiture orders

152 Failing to comply with orders and search warrants

153 Search order not to be disclosed

154 Offence to disclose existence or operation of search order

155 Offence of obstruction

Compliance not actionable

156 Compliance not actionable

Indemnity

157 Indemnity for enforcement officers

Operation of other laws

158 Operation of other laws not affected

Effect of exercise of powers on duties of confidentiality

159 Duties as to confidentiality generally overridden

160 Legal professional privilege

161 Privilege in relation to tax advice

162 Certain provisions not to apply to police, Inland Revenue, Statistics, and Reserve Bank officers

163 Privilege against self-incrimination no excuse

Admissibility of evidence

164 Admissibility of evidence

165 Admissibility of self-incriminating statements

166 Admissibility of evidence given to court or Official Assignee

Arrangements to avoid operation of this Act or Sentencing Act 2002

167 Arrangements to avoid operation of this Act or Sentencing Act 2002

Notices

168 Giving of notices

Effect of death

169 Effect of death

170 Effect of death of joint owner of restrained property

Repeal

171 Repeal

Transitional provisions

172 Proceeds of Crime Act 1991 continues in force for certain purposes

Regulations and rules

173 Regulations

174 Rules

Subpart 10—Consequential amendments to other enactments

Amendments to Crimes Act 1961

175 Amendments to Crimes Act 1961

176 Defence of enforcement of enactment

177 Destruction of relevant records made by use of interception device

178 Restriction on admissibility of evidence of private communications lawfully intercepted

Amendments to Customs and Excise Act 1996

179 Amendments to Customs and Excise Act 1996

180 Detention of goods suspected to be tainted property

181 Further provisions about detention under section 166A

182 Return of goods detained under section 166A

Amendments to Evidence Act 2006

183 Amendment to Evidence Act 2006

184 Undercover police officers

Amendments to Financial Transactions Reporting Act 1996

185 Amendments to Financial Transactions Reporting Act 1996

186 Title amended

187 Verification of identity where money laundering or proceeds of crime suspected

188 Offences

189 Financial institutions to report suspicious transactions

190 Auditors may report suspicious transactions

191 Protection of identity of persons making suspicious transaction reports

192 Offences

193 Commissioner to issue guidelines relating to reporting of suspicious transactions

194 Application of Privacy Act 1993

195 Application of Privacy Act 1993

Amendments to International Crimes and International Criminal Court Act 2000

196 Amendments to International Crimes and International Criminal Court Act 2000

197 Interpretation

198 Attorney-General may authorise measures

199 Method of registration of order

200 New sections 130 and 131 substituted

130 Effect of registration of order

131 Forfeiture order may be treated as profit forfeiture order

201 Cancellation of registration order

Amendments to International War Crimes Tribunals Act 1995

202 Amendments to International War Crimes Tribunals Act 1995

203 New section 43 substituted

43 Effect of registration of order

204 Registered forfeiture orders

205 Cancellation of registration of forfeiture order

Amendment to Judicature Act 1908

206 Amendment to Judicature Act 1908

207 Application of Part 4A

Amendments to Legal Services Act 2000

208 Amendments to Legal Services Act 2000

209 When legal aid may be granted: civil matters

210 Schedule 1 amended

Amendment to Misuse of Drugs Act 1975

211 Amendment to Misuse of Drugs Act 1975

212 Laundering proceeds of drug offences

Amendment to Summary Proceedings Act 1957

213 Amendment to Summary Proceedings Act 1957

214 Part 2 of Schedule 1 amended

Amendments to Tax Administration Act 1994

215 Amendments to Tax Administration Act 1994

216 Officers to maintain secrecy

217 Further secrecy requirements

Amendments to Terrorism Suppression Act 2002

218 Amendments to Terrorism Suppression Act 2002

219 Prohibition on dealing with property of, or derived or generated from property of, terrorist and associated entities

220 Further provisions about detention under section 47A

221 Variation, revocation, or expiry of direction

222 New section 51 substituted

51 Further provisions on management of property subject to section 9

223 New section 57 substituted

57 Further provisions relating to orders under section 55

224 New section 71 substituted

71 Criminal Proceeds (Recovery) Act 2009 not affected

225 Section 81 repealed

Search and Surveillance Act 2012

Reprint notes

The Parliament of New Zealand enacts as follows: