Mutual Assistance in Criminal Matters Amendment Act 2009

Crest

Mutual Assistance in Criminal Matters Amendment Act 2009

Public Act2009 No 9
Date of assent21 April 2009
Commencementsee section 2

The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Mutual Assistance in Criminal Matters Amendment Act 2009.

2 Commencement
  • This Act comes into force on 1 December 2009.

3 Principal Act amended
4 Purpose of Act
5 Interpretation
  • (1) Section 2(1) is amended by inserting the following definition above the definition of Central Authority:

    assets forfeiture order has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009.

    (2) The definitions of document and financial institution in section 2(1) are repealed and the following definitions substituted:

    Commissioner means the Commissioner of Police

    document has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

    examination order means an order issued under section 107 of the Criminal Proceeds (Recovery) Act 2009

    financial institution has the same meaning as in section 3 of the Financial Transactions Reporting Act 1996.

    (3) The definition of foreign drug-dealing offence in section 2(1) is repealed.

    (4) The definition of foreign forfeiture order in section 2(1) is repealed and the following definition substituted:

    foreign forfeiture order means—

    • (a) an order made under the law of a foreign country by a court or other judicial authority for the forfeiture of property that is—

      • (i) tainted property (as defined in relation to Part 3); or

      • (ii) property of a person who has unlawfully benefited from significant foreign criminal activity; or

      • (iii) an instrument of crime (as defined in relation to Part 3); or

    • (b) a foreign pecuniary penalty order.

    (5) The definition of foreign pecuniary penalty order in section 2(1) is repealed and the following definitions are substituted:

    foreign order means a foreign forfeiture order or a foreign restraining order

    foreign pecuniary penalty order means an order, made under the law of a foreign country by any court or other judicial authority, imposing a pecuniary penalty in respect of benefits derived by a person from significant foreign criminal activity (whether proved to a civil or criminal standard); but does not include an order for the payment of a sum of money by way of compensation, restitution, or damages to an injured person.

    (6) The definition of foreign restraining order is repealed and the following definition substituted:

    foreign restraining order means an order made under the law of a foreign country by a court or other judicial authority that—

    • (a) restrains a particular person, or all persons, from dealing with the property specified in the order; and

    • (b) relates to—

      • (i) tainted property (as defined in relation to Part 3); or

      • (ii) property of a person who has, or who may have, unlawfully benefited from significant foreign criminal activity; or

      • (iii) an instrument of crime (as defined in relation to Part 3); or

      • (iv) property that will satisfy some or all of a foreign pecuniary penalty order.

    (7) The definition of foreign serious offence in section 2(1) is repealed and the following definition substituted in its appropriate alphabetical order:

    foreign qualifying forfeiture offence means—

    • (a) an offence in a foreign country that is punishable in that country by a maximum term of imprisonment of 5 years or more (including an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy, or activity is 5 years or more); and

    • (b) an offence under the law of a foreign country that is a party to the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000, if—

      • (i) it is punishable by imprisonment for a term of 4 years or more; and

      • (ii) there are reasonable grounds to suspect that it is transnational in nature (as defined in articles 3(2) and 18(1) of that convention) and involves an organised criminal group (as defined in article 2(a) of that convention).

    (8) The definition of forfeiture order in section 2(1) is repealed.

    (9) The following definitions are inserted in section 2(1) in their appropriate alphabetical order:

    forfeiture order has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

    instrument forfeiture order has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

    instrument of crime,—

    • (a) in relation to Part 2, has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009; and

    • (b) in relation to Part 3, means any property used, wholly or in part, to commit or facilitate the commission of a foreign qualifying forfeiture offence.

    (10) The definition of monitoring order in section 2(1) is repealed.

    (11) The definition of pecuniary penalty order in section 2(1) is repealed.

    (12) The definition of Proceeds of Crime Act in section 2(1) is repealed.

    (13) The definition of production order in section 2(1) is repealed and the following definitions are substituted:

    production order means an order made under section 105 of the Criminal Proceeds (Recovery) Act 2009

    profit forfeiture order has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009.

    (14) The definitions of property and property-tracking document in section 2(1) are repealed and the following definitions substituted:

    property has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

    qualifying instrument forfeiture offence has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009.

    (15) The definitions of restraining order, serious offence, and tainted property in section 2(1) are repealed and the following definitions substituted:

    restraining order has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

    significant criminal activity has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009

    significant foreign criminal activity

    • (a) means an activity engaged in by a person in a foreign country that if proceeded against as a criminal offence in that country—

      • (i) would amount to offending—

        • (A) that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

        • (B) from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived; and

      • (ii) whether or not—

        • (A) the person has been charged with or convicted of the offending; or

        • (B) the person has been acquitted of the offending; or

        • (C) the person’s conviction for the offending has been quashed or set aside; and

    • (b) includes an offence under the law of a foreign country that is a party to the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000, if—

      • (i) it is punishable by imprisonment for a term of 4 years or more; and

      • (ii) there are reasonable grounds to suspect that it is transnational in nature (as defined in articles 3(2) and 18(1) of that convention) and involves an organised criminal group (as defined in article 2(a) of that convention)

    tainted property,—

    • (a) in relation to Part 2, has the same meaning as in section 5(1) of the Criminal Proceeds (Recovery) Act 2009; and

    • (b) in relation to Part 3,—

      • (i) means any property that has, wholly or in part, been—

        • (A) acquired as a result of significant foreign criminal activity; or

        • (B) directly or indirectly derived from significant foreign criminal activity; and

      • (ii) includes any property that has been—

        • (A) acquired as a result of more than 1 activity if at least 1 of those activities is a significant foreign criminal activity; or

        • (B) directly or indirectly derived from more than 1 activity if at least 1 of those activities is a significant foreign criminal activity

    unlawfully benefited from significant foreign criminal activity means a person has knowingly, directly or indirectly, derived a benefit from significant foreign criminal activity (whether or not the person deriving the benefit undertook or was involved in the significant foreign criminal activity).

    (16) Section 2(2) is repealed and the following subsection substituted:

    • (2) A reference in this Act to criminal proceedings or a criminal investigation includes proceedings or investigations into the following matters:

      • (a) revenue (including taxation and customs and excise duties):

      • (b) foreign exchange control:

      • (c) the forfeiture of property as a result of the commission of an offence:

      • (d) the restraint of dealings with property or the freezing of assets that may be forfeited as a result of the commission of an offence:

      • (e) imposing or recovering pecuniary penalties under, and restraining dealing with property needed to satisfy, a foreign pecuniary penalty order imposed as a result of the commission of an offence.

6 New sections 2A and 2B inserted
  • The following sections are inserted after section 2:

    2A Certain investigations relating to civil proceedings deemed to be criminal investigations
    • (1) An investigation certified by the Attorney-General to have commenced in New Zealand relating to the restraint or forfeiture of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things in subsection (2) must be treated as a criminal investigation for the purposes of Part 2 despite the related proceedings being civil in nature.

      (2) The things referred to in subsection (1) are—

      • (a) tainted property (as defined in relation to Part 2); or

      • (b) property of a person who has unlawfully benefited from significant criminal activity.

      (3) An investigation in a foreign country certified by the Central Authority for that country to have commenced in that country relating to the restraint or forfeiture of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things referred to in subsection (4) must be treated as a criminal investigation for the purposes of Part 3 despite the related proceedings being civil in nature.

      (4) The things referred to in subsection (3) are—

      • (a) tainted property (as defined in relation to Part 3); or

      • (b) property of a person who has unlawfully benefited from significant criminal activity; or

      • (c) an instrument of crime (as defined in relation to Part 3); or

      • (d) property that will satisfy all or part of a pecuniary penalty order.

      (5) Investigations treated as criminal investigations under this section are criminal matters for the purposes of Parts 2 and 3.

    2B Certain civil proceedings deemed to be criminal proceedings
    • (1) A proceeding certified by the Attorney-General to have been instituted in respect of the forfeiture or restraint of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things referred to in subsection (2) must be treated as a criminal proceeding for the purposes of Part 2 despite being civil in nature.

      (2) The things referred to in subsection (1) are—

      • (a) tainted property (as defined in relation to Part 2); or

      • (b) property of a person who has unlawfully benefited from significant criminal activity.

      (3) A proceeding certified by the Central Authority of the requesting country to have been instituted in respect of the forfeiture or restraint of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things referred to in subsection (4) must be treated as a criminal proceeding despite being civil in nature.

      (4) The things referred to in subsection (3) are—

      • (a) tainted property (as defined in relation to Part 3); or

      • (b) property of a person who has unlawfully benefited from significant foreign criminal activity; or

      • (c) an instrument of crime (as defined in relation to Part 3); or

      • (d) property that will satisfy all or part of a foreign pecuniary penalty order.

      (5) Proceedings treated as criminal proceedings under this section are criminal matters for the purposes of Parts 2 and 3.

7 Object of Act
  • Section 4 is amended by repealing paragraphs (g) to (j) and substituting the following paragraphs:

    • (g) the forfeiture of—

      • (i) tainted property; and

      • (ii) property of persons who have unlawfully benefited from significant criminal activity or significant foreign criminal activity; and

      • (iii) instruments of crime; and

      • (iv) property that will satisfy all or part of a foreign pecuniary penalty order:

    • (h) the location of property that may be forfeited:

    • (i) the recovery of property to satisfy foreign pecuniary penalty orders:

    • (j) the restraining of dealings with property, or the freezing of assets, that may be forfeited.

8 New headings and sections 21 and 22 substituted
  • The heading above section 21, section 21, the heading above section 22, and section 22 are repealed and the following headings and sections substituted:

    Request to enforce orders under Criminal Proceeds (Recovery) Act 2009

    21 Request to enforce orders under Criminal Proceeds (Recovery) Act 2009
    • (1) The Attorney-General may, if the circumstances in subsection (2) exist, request a foreign country to make arrangements to enforce any of the following in that country:

      • (a) an assets forfeiture order:

      • (b) a profit forfeiture order:

      • (c) an instrument forfeiture order:

      • (d) a restraining order.

      (2) The circumstances are that the Attorney-General has reasonable grounds to believe that some or all of the property to which the order relates is located in the foreign country.

    Request to issue warrant or order in foreign country

    22 Request to issue warrant or order in foreign country
    • (1) The Attorney-General may, if a criminal matter has arisen in New Zealand in respect of any of the things referred to in subsection (2), request a foreign country to issue a warrant or order similar to the following warrants or orders made under the Criminal Proceeds (Recovery) Act 2009 in that country:

      • (a) a restraining order:

      • (b) a search warrant of the kind issued under section 101, 102, or 110 of that Act:

      • (c) a production order:

      • (d) an examination order.

      (2) The things referred to in subsection (1) are—

      • (a) tainted property (as defined in relation to Part 2); or

      • (b) property of a person who has unlawfully benefited from significant criminal activity; or

      • (c) an instrument of crime (as defined in relation to Part 2).

9 Refusal of assistance
  • (1) Section 27(1) is amended by inserting the following paragraph after paragraph (a):

    • (ab) the request relates to the bringing of proceedings of the kind described in section 2B(3) that relate to an activity of a political character; or.

    (2) Section 27(1) is amended by inserting the following paragraph after paragraph (b):

    • (ba) there are substantial grounds for believing that the request has been made with a view to bringing proceedings of the kind described in section 2B(3) that are of a political character; or.

    (3) Section 27(1) is amended by inserting the following paragraph after paragraph (c):

    • (ca) there are substantial grounds for believing that the request has been made for the purpose of bringing proceedings of the kind described in section 2B(3) on account of a person’s colour, race, ethnic origin, sex, religion, nationality, or political opinions; or.

    (4) Section 27(2) is amended by inserting the following paragraph after paragraph (a):

    • (ab) the request relates to proceedings of the kind described in section 2B(3) in respect of conduct that, if it had occurred in New Zealand, would not have constituted significant criminal activity in New Zealand; or.

    (5) Section 27(2) is amended by inserting the following paragraphs after paragraph (b):

    • (ba) the request relates to proceedings of the kind described in section 2B(3) in respect of conduct that occurred, or is alleged to have occurred, outside the foreign country and similar conduct occurring outside New Zealand in similar circumstances would not have constituted significant criminal activity; or

    • (bb) the request relates to proceedings of the kind described in section 2B(3) in respect of conduct that, if it had occurred in New Zealand at the same time, could not have been the subject of proceedings of that kind because of lapse of time or for any other reason; or.

    (6) Section 27(2)(e) is repealed and the following paragraph substituted:

    • (e) the provision of the assistance requested could prejudice—

      • (i) a criminal investigation or criminal proceeding in New Zealand; or

      • (ii) a proceeding of any kind under the Criminal Proceeds (Recovery) Act 2009 or sections 142A to 142Q of the Sentencing Act 2002; or.

    (7) Section 27(2)(g) is repealed and the following paragraph substituted:

    • (g) the provision of assistance—

      • (i) would impose an excessive burden on the resources of New Zealand; or

      • (ii) relates to a matter that is trivial in nature; or.

10 New sections 54 to 62 and headings substituted
  • The heading above section 54, sections 54 to 62, and the heading above section 59 are repealed and the following sections and headings substituted:

    Requests to enforce foreign restraining orders and foreign forfeiture orders

    54 Request to enforce foreign restraining order
    • (1) A foreign country may request the Attorney-General to assist in enforcing a foreign restraining order that relates to property that is believed to be located in New Zealand.

      (2) The Attorney-General may authorise the Commissioner to apply to the High Court to register a foreign restraining order in New Zealand if satisfied—

      • (a) that the request from the foreign country relates to—

        • (i) tainted property (as defined in relation to Part 3); or

        • (ii) property of a person who has unlawfully benefited from significant foreign criminal activity; or

        • (iii) an instrument of crime (as defined in relation to Part 3); or

        • (iv) property that will satisfy some or all of a foreign pecuniary penalty order; and

      • (b) that there are reasonable grounds to believe some or all of the property that is able to be restrained under the foreign restraining order is located in New Zealand.

      (3) An authority issued under subsection (2) must be in writing.

    55 Request to enforce foreign forfeiture order
    • (1) A foreign country may request the Attorney-General to assist in enforcing a foreign forfeiture order that relates to property that is reasonably believed to be located in New Zealand.

      (2) The Attorney-General may authorise the Commissioner to apply to the High Court to register the foreign forfeiture order in New Zealand if satisfied—

      • (a) that the request from the foreign country relates to property that may be forfeited under the foreign forfeiture order and is specific property that—

        • (i) is tainted property (as defined in relation to Part 3); or

        • (ii) belongs to a person who has unlawfully benefited from significant foreign criminal activity; or

        • (iii) is an instrument of crime (as defined in relation to Part 3); or

        • (iv) will satisfy some or all of a foreign pecuniary penalty order; and

      • (b) that there are reasonable grounds to believe that some or all of the property to which the order relates is located in New Zealand.

      (3) An authority issued under subsection (2) must be in writing.

    56 Method for registering foreign orders in New Zealand
    • (1) If the High Court is satisfied that a foreign order that the Commissioner has applied to register under section 54 or 55 is in force in a foreign country, the High Court must make an order that it be registered in New Zealand.

      (3) A foreign order, or an amendment to a foreign order (an amendment), may be registered in the High Court in New Zealand by registering either of the following under the prescribed procedure:

      • (a) a copy of the foreign order or amendment sealed by the court or other judicial authority who made it; or

      • (b) a copy of the foreign order or amendment authenticated in accordance with section 63.

      (4) A copy of an amendment (whether made before or after registration) may be registered in the same way as a foreign order.

      (5) A foreign order or an amendment to a foreign order does not have effect under this Act or the Criminal Proceeds (Recovery) Act 2009 until it is registered.

      (6) An exact copy of a sealed or authenticated copy of a foreign order or an amendment must for the purposes of this Act be treated as if it is the sealed or authenticated copy.

      (7) However, registration of an exact copy ceases to have effect on the expiry of the period of 21 days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered.

    57 Effect of registering foreign orders in New Zealand
    • (1) A foreign restraining order registered in New Zealand under section 56 has effect, and may be enforced, as if it is a restraining order—

      • (a) made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and

      • (b) entered on the date it is registered.

      (2) Subsection (1) is subject to sections 136 to 139 of the Criminal Proceeds (Recovery) Act 2009.

      (3) A foreign forfeiture order registered in New Zealand under section 56 has effect, and may be enforced, as if it is a forfeiture order—

      • (a) made by the High Court under the Criminal Proceeds (Recovery) Act 2009; and

      • (b) entered on the date it is registered.

      (4) Subsection (3) is subject to sections 140 to 149 of the Criminal Proceeds (Recovery) Act 2009.

    58 Cancelling registration of foreign orders in New Zealand
    • (1) The Attorney-General may at any time direct the Commissioner to apply to the High Court to cancel the registration in New Zealand of—

      • (a) a foreign restraining order; or

      • (b) a foreign forfeiture order.

      (2) Without limiting subsection (1), the Attorney-General may give a direction of that kind if the Attorney-General is satisfied—

      • (a) that the order has, since being registered in New Zealand, ceased to have effect in the foreign country in which it was made; or

      • (b) that cancelling the order is appropriate having regard to arrangements entered into between New Zealand and the foreign country in relation to the enforcing of orders of that kind; or

      • (c) that the registration of the order in New Zealand contravened section 56; or

      • (d) that, in the case of a foreign restraining order registered in New Zealand, 1 year has passed since the foreign country made the order; or

      • (e) that, after consultation with the foreign country where the order was made, it is desirable that the registration of the foreign order be cancelled; or

      • (f) that the foreign order has been discharged, wholly or in part.

      (3) The High Court must cancel the registration of a foreign order in New Zealand if the Commissioner applies, under a direction under subsection (1), to the High Court to cancel the registration.

    Requests by foreign countries for orders or warrants in New Zealand

    59 Request for search warrant in New Zealand
    • (1) A foreign country may request the Attorney-General to obtain the issue of a search warrant in New Zealand in respect of a criminal investigation or criminal proceedings relating to—

      • (a) tainted property (as defined in relation to Part 3); or

      • (b) property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or

      • (c) an instrument of crime (as defined in relation to Part 3); or

      • (d) property that will satisfy some or all of a foreign pecuniary penalty order.

      (2) After a request is made, the Attorney-General may, if satisfied of the matters in subsection (3), do any of the following:

      • (a) authorise a member of the police to apply under section 124 of the Criminal Proceeds (Recovery) Act 2009 for a search warrant under section 101 of that Act in relation to that property:

      • (b) authorise the Commissioner to apply under section 125 of the Criminal Proceeds (Recovery) Act 2009 for a search warrant under section 102 of that Act in relation to that property:

      • (c) authorise the Official Assignee to apply under section 126 of the Criminal Proceeds (Recovery) Act 2009 for a search warrant under section 110 of that Act in relation to that property.

      (3) The matters referred to in subsection (2) are—

      • (a) that the request relates to a criminal investigation or criminal proceedings relating to—

        • (i) tainted property (as defined in relation to Part 3); or

        • (ii) property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or

        • (iii) an instrument of crime (as defined in relation to Part 3); or

        • (iv) property that will satisfy some or all of a foreign pecuniary penalty order; and

      • (b) that there are reasonable grounds for believing the property is located in New Zealand.

    60 Interim foreign restraining order
    • (1) A foreign country may request the Attorney-General to obtain the issue of an interim foreign restraining order in respect of property that is believed to be located in New Zealand.

      (2) After a request is made, the Attorney-General may authorise the Commissioner to make an application under section 128 of the Criminal Proceeds (Recovery) Act 2009 for an interim foreign restraining order if the Attorney-General is satisfied that—

      • (a) there is a criminal investigation in relation to—

        • (i) tainted property (as defined in relation to Part 3); or

        • (ii) property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or

        • (iii) an instrument of crime (as defined in relation to Part 3); or

        • (iv) property that will satisfy some or all of a foreign pecuniary penalty order; and

      • (b) there are reasonable grounds to believe all or part of the property to which the criminal investigation relates is located in New Zealand.

    61 Request for production order in New Zealand
    • (1) A foreign country may request the Attorney-General to make an application for a production order in New Zealand.

      (2) After a request is made, the Attorney-General may authorise the Commissioner to make an application to a Judge under section 104 of the Criminal Proceeds (Recovery) Act 2009 if the Attorney-General is satisfied that—

      • (a) the request relates to a criminal investigation that relates to—

        • (i) tainted property (as defined in relation to Part 3); or

        • (ii) property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or

        • (iii) an instrument of crime (as defined in relation to Part 3); or

        • (iv) property that will satisfy some or all of a foreign pecuniary penalty order; and

      • (b) there are reasonable grounds to believe that all or part of the property to which the criminal investigation relates is located in New Zealand.

    62 Request for examination order in New Zealand
    • (1) A foreign country may request the Attorney-General to make an application for the issue of an examination order in New Zealand.

      (2) After a request is made, the Attorney-General may authorise the Commissioner to make an application under section 106 of the Criminal Proceeds (Recovery) Act 2009 if the Attorney-General is satisfied—

      • (a) that the request relates to a criminal investigation that relates to—

        • (i) tainted property (as defined in relation to Part 3); or

        • (ii) property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or

        • (iii) an instrument of crime (as defined in relation to Part 3); or

        • (iv) property that will satisfy some or all of a foreign pecuniary penalty order; and

      • (b) that there are reasonable grounds to believe that all or part of the property to which the criminal investigation relates is located in New Zealand.

11 Certificates given by Attorney-General
  • Section 64(2) is amended by omitting Proceeds of Crime Act and substituting Criminal Proceeds (Recovery) Act 2009.

12 Savings and transitional provisions
  • The Mutual Assistance in Criminal Matters Act 1992 continues in force as it did before the commencement of this Act for the purpose of completing any request or any matter relating to or arising from a request made under that Act before the commencement of this Act, including, without limitation,—

    • (a) taking action in relation to any matter relating to an application under the Mutual Assistance in Criminal Matters Act 1992; and

    • (b) continuing or completing any proceedings or other matter commenced under that Act; and

    • (c) enforcing orders made or registered under that Act; and

    • (d) the exercise of any power or function under the Act in relation to any matter in paragraph (a).

Consequential amendment to Customs and Excise Act 1996

13 Amendment to Customs and Excise Act 1996
14 Return of goods detained under section 166A
  • Section 166D(3)(b) is repealed and the following paragraph substituted:

    • (b) a foreign country makes a request to the Attorney-General under any of the following sections of the Mutual Assistance in Criminal Matters Act 1992:

      • (i) section 54 (relating to a request to enforce a foreign restraining order); and

      • (ii) section 60 (relating to an interim foreign restraining order).


Legislative history

31 March 2009Divided from Criminal Proceeds (Recovery) Bill (Bill 81–2) by committee of the whole House as Bill 81–3A
9 April 2009Third reading
21 April 2009Royal assent

This Act is administered by the Ministry of Justice.