Supplementary Order Paper No 7

No 7

House of Representatives

Supplementary Order Paper

Thursday, 5 March 2009

Criminal Proceeds (Recovery) Bill


Proposed amendments

Hon Simon Power, in Committee, to move the following amendments:

Clause 2

To omit the date that is 8 months after the day on which it receives the Royal assent (lines 5 and 6 on page 15) and substitute 1 December 2009.

Clause 23(1)

To insert after appear and (line 34 on page 28) to.

Clause 33

To insert the following subclause after subclause (2) (after line 16 on page 35):

  • (3) The following persons are entitled to appear and to adduce evidence at the hearing of an application for a further order:

    • (a) the applicant:

    • (b) a person with an interest in the restrained property or proposed restrained property with which the further order is associated:

    • (c) the Official Assignee:

    • (d) with the leave of the court, any other person.

Clause 35

Heading to clause 35: to omit orders (line 29 on page 35) and substitute order.

Clause 46

To omit and be heard (line 28 on page 41) and substitute and to adduce evidence.

Clause 55(2)(c)

To omit realised in accordance with Parts 1 and 2 (lines 23 and 24 on page 46) and substitute disposed of in accordance with section 83(1).

Clause 56(3)(b)

To omit all of (line 21 on page 47) and substitute all or.

Clause 58(5)(b)

To omit may appear and be heard (line 28 on page 48) and substitute are entitled to appear and to adduce evidence.

Clause 65

To omit may appear and be heard (line 13 on page 51) and substitute are entitled to appear and to adduce evidence.

Clause 70(2)

To omit assets in each place where it appears (lines 11 and 13 on page 53) and substitute in each case instrument.

Clause 75(1)

To omit as how (line 28 on page 55) and substitute as to how.

Clause 83

Subclause (4): to omit this subclause (line 29 on page 61) and substitute the following subclause:

  • (4) Subsection (1)(d)(ii) does not prevent the Official Assignee from recovering, by any lawful means, the balance of the maximum recoverable amount that remains due to the Crown, after the Crown is paid a sum less than the maximum recoverable amount under the provision.

Subclause (5): to add (line 30 on page 61) and any regulations made under section 179(ca).

Clause 134

To insert the following subclause after subclause (1) (after line 24 on page 96):

  • (1A) An application under subsection (1) is an application made without notice.

Subclause (2): to insert after sections (line 25 on page 96) 21, 22(1), and.

Clause 140

Subclause (1)(c) and (d): to omit these paragraphs (lines 7 to 10 on page 99).

Subclause (1)(f): to omit section 28 (line 13 on page 99) and substitute section 28(1), (3), and (4).

Subclause (1)(i): to omit section 33 (line 17 on page 99) and substitute section 33(1) and (2).

Subclause (1): to add the following paragraph (after line 20 on page 99):

  • (m) any other provisions of subpart 2 of Part 2 specified as applicable for the purposes of this subsection by regulations made under section 179(ca).

Subclause (3): to omit relief— (line 26 on page 99) and substitute relief,—.

Subclause (3)(a) to (c): to omit these paragraphs (lines 27 to 35 on page 99) and substitute the following paragraphs:

  • (a) in a case where the foreign restraining order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign restraining order:

  • (b) in a case where the foreign restraining order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:

  • (c) in any other case, obtains the leave of the court to make the application.

To insert the following subclauses after subclause (3) (after line 35 on page 99):

  • (4) Sections 23 and 33(3) apply, in relation to an application to register a foreign restraining order or in relation to an application for a further order in relation to that order or in relation to an application for relief in respect of a foreign restraining order, but confer a right of appearance on the person who is subject to the order or the applicant for relief only if that person,—

    • (a) in a case where the foreign restraining order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign restraining order:

    • (b) in a case where the foreign restraining order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:

    • (c) in any other case, obtains the leave of the court to appear at the hearing of the application.

  • (5) The court may grant special leave under subsection (3)(c) or (4)(c) if—

    • (a) the applicant for relief or the person who is the subject of the foreign restraining order had good reasons—

      • (i) for failing to make representations to the decision-making person or body who made the order in the foreign country; or

      • (ii) in a case where the order was made by a court in the foreign country, for failing to attend the hearing at which the foreign restraining order was made; or

    • (b) the evidence proposed to be adduced by the applicant for relief or other person who is subject to the foreign restraining order was not reasonably available to the applicant for relief or other person at the time when the applicant or other person—

      • (i) was required to make submissions to the person or body that made the foreign restraining order in a foreign country; or

      • (ii) at the time of the hearing at which the foreign restraining order was made by the court in a foreign country.

Clause 142

Subclause (1)(b): to omit 1 year (line 22 on page 100) and substitute 2 years.

Subclause (1)(d): to omit this paragraph (lines 29 to 32 on page 101).

Subclause (2): to omit this subclause (line 37 on page 100 to line 7 on page 101) and substitute the following subclause:

  • (2) Despite subsection (1), if the registration of a foreign restraining order in New Zealand is extended as a result of an application to the High Court, it expires on the date specified by the High Court under section 144.

Clause 143

To omit this clause (lines 11 to 33 on page 101).

Clause 146

To add the following subclause (after line 12 on page 103):

  • (3) An order under subsection (1) does not affect a restraining order, insofar as it applies to property that is not the subject of the order.

New clause 149A

To insert the following clause after clause 149 (after line 33 on page 103):

149A Provisions of subpart 3 of Part 2 applying to registering foreign forfeiture orders
  • (1) The following sections of subpart 3 of Part 2 apply, with all necessary modifications, if an application is made to register a foreign forfeiture order in New Zealand under section 55 of the Mutual Assistance in Criminal Matters Act 1992:

    • (a) section 47 (amending application for civil forfeiture order):

    • (b) any other provision of subpart 3 of Part 2 specified as applicable for the purposes of this subsection by regulations made under section 179.

    (2) Section 154 (which relates to relief) applies in relation to a foreign forfeiture order registered in New Zealand only if the person applying for relief,—

    • (a) in a case where the foreign forfeiture order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign forfeiture order:

    • (b) in a case where the foreign forfeiture order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:

    • (c) in any other case, obtains the leave of the court to make the application.

    (3) Sections 46 and 64 apply, in relation to an application to register a foreign forfeiture order or in relation to an application for relief in respect of a foreign forfeiture order, but confer a right of appearance on the person who is subject to the order or the applicant for relief only if that person,—

    • (a) in a case where the foreign forfeiture order was made without a hearing in a court in the foreign country where it was made, was given no opportunity to make representations to the person or body that made the foreign forfeiture order:

    • (b) in a case where the foreign forfeiture order was made at a hearing of a court in the foreign country where it was made, was not served with any notice of, and did not appear at, the hearing held in the court:

    • (c) in any other case, obtains the leave of the court to appear at the hearing of the application.

    (4) The court may grant special leave under subsection (2)(c) or (3)(c) if—

    • (a) the applicant for relief or the person who is the subject of the foreign forfeiture order had good reasons—

      • (i) for failing to make representations to the decision-making person or body who made the order in the foreign country; or

      • (ii) in a case where the order was made by a court in the foreign country, for failing to attend the hearing at which the foreign forfeiture order was made; or

    • (b) the evidence proposed to be adduced by the applicant for relief or other person who is subject to the foreign forfeiture order was not reasonably available to the applicant for relief or other person at the time when the applicant or other person—

      • (i) was required to make submissions to the person or body that made the foreign forfeiture order in a foreign country; or

      • (ii) at the time of the hearing at which the foreign forfeiture order was made by the court in a foreign country.

Clause 154

To omit this clause (line 28 on page 105 to line 9 on page 106) and substitute the following clause:

154 Relief from foreign forfeiture order registered in New Zealand
  • A person who claims an interest in property sought to be forfeited under a foreign forfeiture order registered in New Zealand may, before the date that is 6 months from the date on which the foreign forfeiture order is registered, apply to the High Court for an order if the person is a person to whom section 149A(3)(a), (b), or (c) applies.

Clause 155(3)

Paragraph (b): to add (line 32 on page 106) ; or.

To add the following paragraph (after line 32 on page 106):

  • (c) the applicant has unlawfully benefited from the significant foreign criminal activity to which the foreign forfeiture order relates.

Clause 159

Subclause (2)(a): to insert after referred (line 38 on page 108) to.

Subclause (3)(a): to insert after referred (line 4 on page 109) to.

Clause 179

To insert the following paragraph after paragraph (c) (after line 15 on page 119):

  • (ca) providing for the creation of charges in respect of property to which any profit forfeiture order applies, specifying the priority of any such charge in relation to any other encumbrances and the circumstances in which a charge ceases to have effect, and providing for any other related matters:

New clause 230A

To insert the following clause after the heading to subpart 1 of Part 3 (after line 6 on page 134):

230A Principal Act amended
  • This subpart amends the Mutual Assistance in Criminal Matters Act 1992.

Clause 232

To omit this clause (lines 12 to 14 on page 134).

Clause 233(6)

Paragraph (b)(ii) of the new definition of foreign restraining order: to insert after who has (line 36 on page 135) , or who may have,.

Clause 238: new section 56(5)

To omit An amendment (line 18 on page 146) and substitute A foreign order or an amendment to a foreign order.


Explanatory note

This Supplementary Order Paper amends the Criminal Proceeds (Recovery) Bill to—

  • alter the commencement date from 8 months after the date of Royal assent to a fixed date (1 December 2009):

  • amend clause 33 to clarify who can appear at an application for a further order in relation to a restraining order:

  • amend clause 83 to provide that the duties of the Official Assignee, in relation to the discharge of profit forfeiture orders, are subject to any regulations made under new clause 179(ca) providing for the creation of a charging regime in relation to property that is subject to a profit forfeiture order:

  • amend clause 134 to provide that applications for interim foreign restraining orders are made without notice:

  • amend clause 140 to clarify when a person can apply for relief in respect of a foreign restraining order registered in New Zealand, and when persons who are subject to a foreign restraining order have a right to appear on an application to register such an order, or for a further order, or on an application for relief. In general terms a right to apply for relief, and the right of a respondent to appear in relation to applications made to register orders or an application for further orders, is conferred only where the person has not had an opportunity to make representations before the court or other body in the foreign country that made the order, or if a New Zealand court grants special leave:

  • amend clause 140(1)(f) to remove the absolute prohibition on using property restrained by foreign restraining orders to pay legal fees, as some foreign countries permit respondents to pay their legal fees with restrained property:

  • amend clause 142 and omit clause 143 to provide that applications for registering foreign restraining orders are always made on notice:

  • amend clause 142 to extend the maximum period for which a foreign restraining order may remain in force from 1 year to 2 years, to ensure sufficient time is allowed to enable investigations and other procedural requirements in relation to the registration of foreign forfeiture orders to be completed:

  • insert a new clause 149A (relating to the registration of foreign forfeiture orders), which provides similar rules about relief and rights to appearance as the amendments to clause 140:

  • amend clauses 154 and 155 to give the High Court a discretion to grant relief where a person has unlawfully benefited from significant foreign criminal activity (to ensure consistency with other provisions of the Bill):

  • make a variety of minor corrections and other technical amendments.