Criminal Proceeds (Recovery) Act 2009

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Version as at 5 October 2021

Coat of Arms of New Zealand

Criminal Proceeds (Recovery) Act 2009

Public Act
 
2009 No 8
Date of assent
 
21 April 2009
Commencement
 
see section 2
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Justice.

Contents

1Title
2Commencement
Part 1
Preliminary provisions
Purpose
3Purpose
Overview
4Overview
Interpretation
5Interpretation
6Meaning of significant criminal activity
7Meaning of unlawfully benefited from significant criminal activity
Application
8This Act to bind the Crown
9Application
Part 2
Criminal proceeds and instruments forfeiture regime
Subpart 1—General provisions
10Nature of proceedings
11Restraint not necessary before forfeiture
12Conversion of restrained property and foreign restrained property
13No identifiable owner required for certain proceedings relating to specific property
14Differing grounds for restraining and later forfeiting property
15No criminal proceedings required for civil forfeiture order or in registering foreign forfeiture order
16Quashing criminal proceedings does not impact on civil forfeiture
17Multiple forfeiture orders and foreign forfeiture orders
Subpart 2—Restraining orders
Applying for restraining order
18Applying for restraining order
19Application for restraining order to identify proposed restrained property, respondent (if any), and interest holders
20Court to which application for restraining order made
Applications for restraining order made on and without notice
21Application for restraining order on notice
22Application for restraining order without notice
Being heard at hearing for restraining order
23Who may be heard at hearing for restraining order
Making restraining orders
24Making restraining order relating to specific property
25Making restraining order relating to all or part of respondent’s property
26Making restraining order relating to instrument of crime
Registration of restraining orders
27Registration of restraining orders on registers
Conditions on restraining order
28Conditions on restraining order
Undertakings as to damages or costs in relation to restraining orders
29Undertakings as to damages or costs in relation to restraining orders
Excluding severable interest from restrained property
30Excluding severable interest from restrained property
31Excluding severable interest from restrained property when applicant mortgagee
Disposition or dealings set aside from restrained property
32Certain disposition or dealing set aside from restrained property
Further orders associated with restraining orders
33Applying for further orders
34Making further orders
35Types of further order
36Impact of certain further orders
Duration of restraining orders and further orders
37Duration of restraining orders and further orders
38Duration of restraining order when application for forfeiture order declined
39Duration of restraining order when application without notice
40Duration of restraining order relating to instrument of crime in certain circumstances
41Extending duration of restraining order
42Additional matters relating to extending duration of restraining order
Subpart 3—Civil forfeiture orders
Applications for civil forfeiture orders
43Who may apply
44Application to High Court
Notice and entitlement to be heard in relation to civil forfeiture orders
45Application for civil forfeiture order on notice
46Who may be heard at hearing for civil forfeiture order
Matters relating to application for civil forfeiture order
47Amending application for civil forfeiture order
48Notice of application for civil forfeiture order may be recorded on registers
Application for assets forfeiture order
49Application for assets forfeiture order to specify proposed forfeited property, grounds, respondent (if any), and persons with interests (if known)
Making assets forfeiture order
50Making assets forfeiture order
51Exclusion of respondent’s property from assets forfeiture order because of undue hardship
Application for profit forfeiture order
52Contents of application for profit forfeiture order
Making profit forfeiture order
53Value of benefit presumed to be value in application
54High Court must determine maximum recoverable amount
55Making profit forfeiture order
56Exclusion of respondent’s property from profit forfeiture order because of undue hardship
57Profit forfeiture order if respondent has absconded
58Court may treat effective control over property as interest in property
Matters associated with making civil forfeiture order
59Additional matters in respect of making civil forfeiture order
60Civil forfeiture order relating to land
Relief from civil forfeiture order for persons other than respondent
61Person (other than respondent) may apply for relief before civil forfeiture order made or declined
62Person (other than respondent) may apply for relief for limited period after civil forfeiture order made
63Application for relief from civil forfeiture order to identify nature and reasons for relief sought
64Application for relief from civil forfeiture on notice
65Appearing at hearing for relief from civil forfeiture order
66Making order for relief from civil forfeiture order where person has interest and was not involved in significant criminal activity
67Making order for relief from civil forfeiture order on grounds of undue hardship
68Matters associated with relief from civil forfeiture order when interest severable
69Matters associated with relief from civil forfeiture order when interest not severable
Subpart 4—Instrument forfeiture orders
Effect of instrument forfeiture order
70Effect of instrument forfeiture order
71Additional matters in respect of making instrument forfeiture order
72Instrument forfeiture order relating to land
Disposal of forfeited property under instrument forfeiture order in certain circumstances
73Time restraints on disposal of property forfeited under instrument forfeiture order
74Discharge of instrument forfeiture order on appeal or quashing of conviction
75Official Assignee may apply for directions regarding discharge of instrument forfeiture order under section 74
76Double benefit not permitted
Applications for relief relating to instrument forfeiture order
77Applications for relief from instrument forfeiture order
Third party appeals from instrument forfeiture order
78Third party appeals from instrument forfeiture order
79Power of appeal court to vary offender’s sentence
Subpart 5—Official Assignee
Preserving value of certain property
80Preserving value of certain property
No liability for certain payments
81Official Assignee not liable for certain payments on certain property
Discharge of assets forfeiture orders by Official Assignee
82Discharge of assets forfeiture order by Official Assignee
Discharge of profit forfeiture order by Official Assignee
83Discharge of profit forfeiture order by Official Assignee
84Bankruptcy in relation to profit forfeiture order
Discharge of instrument forfeiture order by Official Assignee
85Discharge of instrument forfeiture order by Official Assignee
Discharge of foreign forfeiture order registered in New Zealand by Official Assignee
86Discharge by Official Assignee of foreign forfeiture order registered in New Zealand
Costs recoverable by Official Assignee
87Costs recoverable by Official Assignee
Delegation by Official Assignee
88Delegation by Official Assignee
89Acting under delegation from Official Assignee
90Revocation of delegation from Official Assignee
Subpart 6—Role of police
91Interpretation
Functions of Commissioner of Police
92Independence
Challenge to exercise of Commissioner’s decisions, powers, and duties
93Effect of proceedings relating to Commissioner’s powers and duties
94Effect of final decision that exercise of powers unlawful
Approval of settlements
95High Court must approve settlement between Commissioner and other party
Delegation of powers, functions, or duties of Commissioner of Police
96Delegation of powers, functions, or duties of Commissioner of Police
Outside investigators appointed by Commissioner
97Exercise of powers by outside investigators
98Disclosure to Commissioner of Police of information held by Inland Revenue Department
99Destruction of information supplied under section 98
Subpart 7—Investigative powers
100Interpretation
Police powers
101Police may obtain warrant to search for and seize evidence and property
Commissioner’s powers
102Commissioner may obtain warrant to search for and seize evidence and property
103Commissioner to transfer property to Official Assignee
Production orders
104Application for production order
105Court may make production order
Examination orders
106Application for examination order
Examination order
[Repealed]
107Power to require attendance before Commissioner, production of documents, etc
Non-compliance with production order or examination order
108Power to obtain search warrant for non-compliance with production order or examination order
109Immunity from liability for disclosure of information under this Act
Official Assignee’s powers
110Official Assignee may apply for warrant to search for and seize property
111Official Assignee to hold property
112Return of seized property
113Retention of seized property if forfeiture order made
General rules about search warrants
114Application of Part 4 of Search and Surveillance Act 2012
115Application for search warrant [Repealed]
116Form and content of search warrant [Repealed]
117When search warrant is executed [Repealed]
118Powers conferred by search warrant [Repealed]
119Powers of persons called to assist [Repealed]
120Person executing warrant to produce evidence of authority [Repealed]
121Inventory of items seized [Repealed]
122Compliance with certain provisions unnecessary in some circumstances [Repealed]
Orders
123Form and content of orders
Warrants and powers associated with foreign restraining orders and foreign forfeiture orders
124Warrants associated with foreign restraining orders and foreign forfeiture orders
125Powers of Commissioner in relation to warrants associated with foreign restraining orders and foreign forfeiture orders
126Powers of Official Assignee in relation to warrants associated with foreign restraining orders and foreign forfeiture orders
127Provisions associated with foreign restraining orders and foreign forfeiture orders
Subpart 8—Foreign restraining orders and foreign forfeiture orders
Interim foreign restraining orders
128Interim foreign restraining order
129Expiry of interim foreign restraining orders
130Extending duration of interim foreign restraining order
131Additional matters relating to extending duration of interim foreign restraining order
Registering foreign restraining orders
132Who may apply to register foreign restraining order
133Application to register foreign restraining order made to High Court
134Provisions of subpart 2 of Part 2 applying to registering foreign restraining orders
135Effect of registering foreign restraining order in New Zealand
Duration of foreign restraining order and further orders
136Duration of foreign restraining order registered in New Zealand and associated further orders
137Extension of duration of registration of foreign restraining order
138Additional matters relating to extension of registration of foreign restraining order
139Exclusion of interest from foreign restraining order registered in New Zealand
Registering foreign forfeiture orders
140Who may apply to register foreign forfeiture order
141Application to register foreign forfeiture order made to High Court
142Notice of registration of foreign forfeiture order
143Provisions of subpart 3 of Part 2 applying to registering foreign forfeiture orders
144Registering foreign forfeiture order
145Notice of registration of foreign forfeiture order may be recorded on registers
146Additional matters in respect of registering foreign forfeiture order
147Registering foreign forfeiture order relating to land
Relief from foreign forfeiture order registered in New Zealand
148Relief from foreign forfeiture order registered in New Zealand
149High Court may grant relief from foreign forfeiture order registered in New Zealand
Subpart 9—Miscellaneous
Offences
150Contravention of restraining orders or foreign restraining orders
151Contravention of forfeiture orders or foreign forfeiture orders
152Failing to comply with orders and search warrants
153Search order not to be disclosed
154Offence to disclose existence or operation of search order
155Offence of obstruction
Compliance not actionable
156Compliance not actionable
Indemnity
157Indemnity for enforcement officers
Operation of other laws
158Operation of other laws not affected
Effect of exercise of powers on duties of confidentiality
159Duties as to confidentiality generally overridden
160Legal professional privilege
161Privilege in relation to tax advice
162Certain provisions not to apply to police, Inland Revenue, Statistics, and Reserve Bank officers
163Privilege against self-incrimination no excuse
Admissibility of evidence
164Admissibility of evidence
165Admissibility of self-incriminating statements
166Admissibility of evidence given to court or Official Assignee
Arrangements to avoid operation of this Act or Sentencing Act 2002
167Arrangements to avoid operation of this Act or Sentencing Act 2002
Notices
168Giving of notices
Effect of death
169Effect of death
170Effect of death of joint owner of restrained property
Repeal
171Repeal
Transitional provisions
172Proceeds of Crime Act 1991 continues in force for certain purposes
Regulations and rules
173Regulations
174Rules
Subpart 10—Consequential amendments to other enactments
Amendments to Crimes Act 1961
175Amendments to Crimes Act 1961
176Defence of enforcement of enactment
177Destruction of relevant records made by use of interception device
178Restriction on admissibility of evidence of private communications lawfully intercepted
Amendments to Customs and Excise Act 1996
179Amendments to Customs and Excise Act 1996
180Detention of goods suspected to be tainted property
181Further provisions about detention under section 166A
182Return of goods detained under section 166A
Amendments to Evidence Act 2006
183Amendment to Evidence Act 2006
184Undercover police officers
Amendments to Financial Transactions Reporting Act 1996
185Amendments to Financial Transactions Reporting Act 1996
186Title amended
187Verification of identity where money laundering or proceeds of crime suspected
188Offences
189Financial institutions to report suspicious transactions
190Auditors may report suspicious transactions
191Protection of identity of persons making suspicious transaction reports
192Offences
193Commissioner to issue guidelines relating to reporting of suspicious transactions
194Application of Privacy Act 1993
195Application of Privacy Act 1993
Amendments to International Crimes and International Criminal Court Act 2000
196Amendments to International Crimes and International Criminal Court Act 2000
197Interpretation
198Attorney-General may authorise measures
199Method of registration of order
200New sections 130 and 131 substituted
130Effect of registration of order
131Forfeiture order may be treated as profit forfeiture order
201Cancellation of registration order
Amendments to International War Crimes Tribunals Act 1995
202Amendments to International War Crimes Tribunals Act 1995
203New section 43 substituted
43Effect of registration of order
204Registered forfeiture orders
205Cancellation of registration of forfeiture order
Amendment to Judicature Act 1908
[Repealed]
206Amendment to Judicature Act 1908 [Repealed]
207Application of Part 4A [Repealed]
Amendments to Legal Services Act 2000
208Amendments to Legal Services Act 2000
209When legal aid may be granted: civil matters
210Schedule 1 amended
Amendment to Misuse of Drugs Act 1975
211Amendment to Misuse of Drugs Act 1975
212Laundering proceeds of drug offences
Amendment to Summary Proceedings Act 1957
213Amendment to Summary Proceedings Act 1957
214Part 2 of Schedule 1 amended
Amendments to Tax Administration Act 1994
215Amendments to Tax Administration Act 1994
216Officers to maintain secrecy
217Further secrecy requirements
Amendments to Terrorism Suppression Act 2002
218Amendments to Terrorism Suppression Act 2002
219Prohibition on dealing with property of, or derived or generated from property of, terrorist and associated entities
220Further provisions about detention under section 47A
221Variation, revocation, or expiry of direction
222New section 51 substituted
51Further provisions on management of property subject to section 9
223New section 57 substituted
57Further provisions relating to orders under section 55
224New section 71 substituted
71Criminal Proceeds (Recovery) Act 2009 not affected
225Section 81 repealed
Notes

The Parliament of New Zealand enacts as follows: