Hon Annette King
Government Bill
81—2
As reported from the Law and Order Committee
Commentary
Key
1 Title
2 Commencement
Part 1Preliminary 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 Parts 1 and 2 to bind the Crown
9 Application
Part 2Criminal 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 orders
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
Director of Criminal Proceeds Confiscation
92 Director of Criminal Proceeds Confiscation
Functions of Commissioner of Police
93 Independence
Challenge to exercise of Commissioner's decisions, powers, and duties
94 Review of Director’s decisions
95 Effect of proceedings relating to Commissioner's powers and duties
96 Effect of final decision that exercise of powers unlawful
Approval of settlements
97 High Court must approve settlement between Commissioner and other party
Delegation of functions or powers of Commissioner of Police
98 Delegation of functions or powers of Commissioner of Police
Outside investigators appointed by Commissioner
99 Exercise of powers by outside investigators
Information exchange and disclosure
100 Director may enter agreements with overseas agencies
101 Secrecy of certain information
102 Information exchange and disclosure
103 Secrecy of information protected under other Acts
104 Disclosure to Commissioner of Police of information held by Inland Revenue Department
105 Destruction of information supplied under section 104
Subpart 7—Investigative powers
106 Interpretation
Police powers
107 Police may obtain warrant to search for and seize evidence and property
108 Commissioner of Police to transfer property to Official Assignee
Commissioner's powers
109 Commissioner may obtain warrant to search for and seize evidence and property
110 Commissioner to transfer property to Official Assignee
Director may require production of documents
111 Power to require production of documents
Production orders
112 Application for production order
113 Court may make production order
113A Application for examination order
Examination order
114 Power to require attendance before Commissioner, production of documents, etc
Non-compliance with production order or examination order
115 Power to obtain search warrant for non-compliance with production order or examination order
115A Immunity from liability for disclosure of information under this Act
Official Assignee’s powers
116 Official Assignee may apply for warrant to search for and seize property
117 Official Assignee to hold property
118 Return of seized property
119 Retention of seized property if forfeiture order made
General rules about search warrants
120 Application of sections 121 to 128
121 Application for search warrant
122 Form and content of search warrant
123 When search warrant is executed
124 Powers conferred by search warrant
125 Powers of persons called to assist
126 Person executing warrant to produce evidence of authority
127 Inventory of items seized
128 Compliance with certain provisions unnecessary in some circumstances
Orders
129 Form and content of orders
Warrants and powers associated with foreign restraining orders and foreign forfeiture orders
130 Warrants associated with foreign restraining orders and foreign forfeiture orders
131 Powers of Commissioner in relation to warrants associated with foreign restraining orders and foreign forfeiture orders
132 Powers of Official Assignee in relation to warrants associated with foreign restraining orders and foreign forfeiture orders
133 Provisions associated with foreign restraining orders and foreign forfeiture orders
Subpart 8—Foreign restraining orders and foreign forfeiture orders
Interim foreign restraining orders
134 Interim foreign restraining order
135 Expiry of interim foreign restraining orders
136 Extending duration of interim foreign restraining order
137 Additional matters relating to extending duration of interim foreign restraining order
Registering foreign restraining orders
138 Who may apply to register foreign restraining order
139 Application to register foreign restraining order made to High Court
140 Provisions of subpart 2 of Part 2 applying to registering foreign restraining orders
141 Effect of registering foreign restraining order in New Zealand
Duration of foreign restraining order and further orders
142 Duration of foreign restraining order registered in New Zealand and associated further orders
143 Duration of registration of foreign restraining order when application without notice
144 Extension of duration of registration of foreign restraining order
145 Additional matters relating to extension of registration of foreign restraining order
146 Exclusion of interest from foreign restraining order registered in New Zealand
Registering foreign forfeiture orders
147 Who may apply to register foreign forfeiture order
148 Application to register foreign forfeiture order made to High Court
149 Notice of registration of foreign forfeiture order
150 Registering foreign forfeiture order
151 Notice of registration of foreign forfeiture order may be recorded on registers
152 Additional matters in respect of registering foreign forfeiture order
153 Registering foreign forfeiture order relating to land
Relief from foreign forfeiture order registered in New Zealand
154 Relief from foreign forfeiture order registered in New Zealand
155 High Court may grant relief from foreign forfeiture order registered in New Zealand
Subpart 9—Miscellaneous
Offences
156 Contravention of restraining orders or foreign restraining orders
157 Contravention of forfeiture orders or foreign forfeiture orders
158 Failing to comply with orders and search warrants
159 Search order not to be disclosed
160 Offence to disclose existence or operation of search order
161 Offence of obstruction
162 Members of recovery body not to disclose secrets
Compliance not actionable
163 Compliance not actionable
Indemnity
164 Indemnity for enforcement officers
Operation of other laws
165 Operation of other laws not affected
Effect of exercise of powers on duties of confidentiality
166 Duties as to confidentiality generally overridden
167 Legal professional privilege
167A Privilege in relation to tax advice
168 Certain provisions not to apply to police, Inland Revenue, Statistics, and Reserve Bank officers
169 Privilege against self-incrimination no excuse
Admissibility of evidence
170 Admissibility of evidence
171 Admissibility of self-incriminating statements
172 Admissibility of evidence given to court or Official Assignee
Arrangements to avoid operation of Parts 1 and 2 or Sentencing Act 2002
173 Arrangements to avoid operation of Parts 1 and 2 or Sentencing Act 2002
Notices
174 Giving of notices
Effect of death
175 Effect of death
176 Effect of death of joint owner of restrained property
Repeal
177 Repeal
Transitional provisions
178 Proceeds of Crime Act 1991 continues in force for certain purposes
Regulations and rules
179 Regulations
180 Rules
Subpart 10—Consequential amendments to other enactments
Amendments to Crimes Act 1961
181 Amendments to Crimes Act 1961
182 Defence of enforcement of enactment
183 Destruction of relevant records made by use of interception device
184 Restriction on admissibility of evidence of private communications lawfully intercepted
Amendments to Customs and Excise Act 1996
185 Amendments to Customs and Excise Act 1996
186 Detention of goods suspected to be tainted property
187 Further provisions about detention under section 166A
188 Return of goods detained under section 166A
Amendment to Evidence Act 1908
189 Amendment to Evidence Act 1908
190 Undercover police officers
Amendments to Evidence Act 2006
189 Amendment to Evidence Act 2006
Amendments to Financial Transactions Reporting Act 1996
191 Amendments to Financial Transactions Reporting Act 1996
192 Title amended
193 Verification of identity where money laundering or proceeds of crime suspected
194 Offences
195 Financial institutions to report suspicious transactions
196 Auditors may report suspicious transactions
197 Protection of identity of persons making suspicious transaction reports
198 Offences
199 Commissioner to issue guidelines relating to reporting of suspicious transactions
200 Application of Privacy Act 1993
201 Application of Privacy Act 1993
Amendments to International Crimes and International Criminal Court Act 2000
202 Amendments to International Crimes and International Criminal Court Act 2000
203 Interpretation
204 Attorney-General may authorise measures
205 Method of registration of order
206 New sections 130 and 131 substituted
130 Effect of registration of order
131 Forfeiture order may be treated as profit forfeiture order
207 Cancellation of registration order
Amendments to International War Crimes Tribunals Act 1995
208 Amendments to International War Crimes Tribunals Act 1995
209 New section 43 substituted
43 Effect of registration of order
210 Registered forfeiture orders
211 Cancellation of registration of forfeiture order
Amendment to Judicature Act 1908
212 Amendment to Judicature Act 1908
213 Application of Part 4A
Amendments to Legal Services Act 2000
214 Amendments to Legal Services Act 2000
215 When legal aid may be granted: civil matters
216 Schedule 1 amended
Amendment to Misuse of Drugs Act 1975
217 Amendment to Misuse of Drugs Act 1975
218 Laundering proceeds of drug offences
Amendment to Summary Proceedings Act 1957
219 Amendment to Summary Proceedings Act 1957
220 Part 2 of Schedule 1 amended
Amendments to Tax Administration Act 1994
221 Amendments to Tax Administration Act 1994
222 Officers to maintain secrecy
222A Further secrecy requirements
Amendments to Terrorism Suppression Act 2002
223 Amendments to Terrorism Suppression Act 2002
224 Prohibition on dealing with property of, or derived or generated from property of, terrorist and associated entities
225 Further provisions about detention under section 47A
226 Variation, revocation, or expiry of direction
227 New section 51 substituted
51 Further provisions on management of property subject to section 9
228 New section 57 substituted
57 Further provisions relating to orders under section 55
229 New section 71 substituted
71 Criminal Proceeds (Recovery) Act 2006 not affected
230 Section 81 repealed
Part 3Amendments to Mutual Assistance in Criminal Matters Act 1992 and Sentencing Act 2002
Subpart 1—Amendments to Mutual Assistance in Criminal Matters Act 1992
231 Purpose of subpart
232 Principal Act amended
233 Interpretation
234 New sections 2A and 2B inserted
2A Certain investigations relating to civil proceedings deemed to be criminal investigations
2B Certain civil proceedings deemed to be criminal proceedings
235 Object of Act
236 New headings and sections 21 and 22 substituted
Request to enforce orders under Criminal Proceeds (Recovery) Act 2006
21 Request to enforce orders under Criminal Proceeds (Recovery) Act 2006
Request to issue warrant or order in foreign country
22 Request to issue warrant or order in foreign country
237 Refusal of assistance
238 New sections 54 to 62A and headings substituted
Requests to enforce foreign restraining orders and foreign forfeiture orders
54 Request to enforce foreign restraining order
55 Request to enforce foreign forfeiture order
56 Method for registering foreign orders in New Zealand
57 Effect of registering foreign orders in New Zealand
58 Cancelling registration of foreign orders in New Zealand
Requests by foreign countries for orders or warrants in New Zealand
59 Request for search warrant in New Zealand
60 Interim foreign restraining order
61 Request for production notice in New Zealand
62 Request for production order in New Zealand
62A Request for examination order in New Zealand
239 Certificates given by Attorney-General
240 Savings and transitional provisions
Consequential amendment to Customs and Excise Act 1996
241 Amendment to Customs and Excise Act 1996
242 Return of goods detained under section 166A
Subpart 2—Amendments to Sentencing Act 2002
243 Principal Act amended
244 Purpose
245 Application
246 Interpretation
247 New heading and new section 10B inserted
Taking account of instrument forfeiture order or successful application for relief
10B Court must take into account instrument forfeiture order or successful application for relief
248 Power of adjournment for inquiries as to suitable punishment
249 Access to reports
250 New heading and sections 142A to 142Q inserted
Instrument forfeiture orders
142A Interpretation of terms used in sections 142B to 142Q
142B Duties of prosecutor if offender guilty of qualifying instrument forfeiture offence
142C Duties of court on notification
142D Notice of possible instrument forfeiture order may be recorded on registers
142E Duties of prosecutor as to service
142F Court may require further information
142G Independent valuation of property
142H Court may order declaration of ownership to be completed
142I Determining ownership of property
142J Applications for relief from instrument forfeiture order
142K Hearings concerning instrument forfeiture orders
142L Court may grant relief from instrument forfeiture order to applicant who establishes interest in property
142M Court may grant relief from instrument forfeiture order to applicant on grounds of undue hardship
142N Instrument forfeiture orders
142O Offence of providing false or misleading information under section 142F
142P Evidence in instrument forfeiture order proceedings
142Q Relationship with other provisions in Act
Legislative history
The Parliament of New Zealand enacts as follows: