Version as at 28 October 2021
The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.
Note 4 at the end of this version provides a list of the amendments included in it.
This Act is administered by the Ministry of Foreign Affairs and Trade.
The Parliament of New Zealand enacts as follows:
This Act is the Brokering (Weapons and Related Items) Controls Act 2018.
(1)
The following provisions come into force on 1 February 2019:
Part 1 (which contains preliminary provisions):
subparts 2 and 3 of Part 2 (which relate to registration of brokers and permits for brokering activity):
sections 36 to 42 (which relate to various miscellaneous matters).
(2)
The rest of this Act comes into force on 1 June 2019.
The purpose of this Act is to—
regulate the brokering of weapons and related items; and
support New Zealand’s commitments under the Arms Trade Treaty.
This Act applies to any brokering activity that is carried out—
in any place (including any brokering activity that is carried out wholly or partially outside New Zealand) and by a person—
who is in New Zealand; or
who is a New Zealand citizen or ordinarily resident in New Zealand; or
that is an entity incorporated or registered under the law of New Zealand; or
wholly or partially on board a ship or an aircraft described in section 36(1)(b).
See sections 11 and 36.
In this Act, unless the context otherwise requires,—
Arms Trade Treaty means the Arms Trade Treaty done at New York on 28 March 2013
broker means a person who is registered as a broker under subpart 2 of Part 2
brokering activity has the meaning set out in section 6
department has the meaning given in section 2(1) of the Public Finance Act 1989
dual-use goods means goods—
that may have a civilian use but that are intended for military end-use or that may have a military application; and
that fall within a specified category
equivalent overseas regime has the meaning set out in section 7
goods—
has the meaning given in section 5(1) of the Customs and Excise Act 2018; and
includes documents (within the meaning of section 5(1) of that Act) that are not otherwise goods (within the meaning of section 5(1) of that Act)
military end-use means—
incorporation into military items that fall within a specified category; or
use, production, or testing of equipment and components for the development, production, or maintenance of military items that fall within a specified category; or
use of any unfinished products for the production of military items that fall within a specified category
Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
ordinarily resident in New Zealand has the same meaning as in section 4 of the Crimes Act 1961
permit means a permit given under subpart 3 of Part 2
prohibited use, in relation to dual-use goods, means any of the following uses:
the development, production, or deployment of nuclear, chemical, or biological weapons or their means of delivery:
military end-use:
use as parts or components of military items that fall within a category of the strategic goods list that is specified for the purposes of the definition of military end-use
Secretary means the Secretary of Foreign Affairs and Trade
specified category, in relation to the definition of dual-use goods or military end-use, means a category or part of the strategic goods list that is specified for the purpose of that definition in accordance with subsection (2)
strategic goods list means the list of all goods and classes of goods whose exportation is prohibited under section 96 of the Customs and Excise Act 2018 because they have or may have a strategic use (within the meaning of section 96(11) of that Act) that the Secretary is required to publish under section 96(7) of that Act
weapon or related item means any goods specified in the strategic goods list.
The Secretary may, by notice after consultation with the Minister, specify categories or parts of the strategic goods list for the purposes of the definitions of dual-use goods and military end-use.
(3)
A notice under subsection (2) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Section 5(2): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 5(3): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
In this Act, brokering activity—
means arranging, facilitating, or negotiating a transaction that involves the international transfer of weapons or related items from a place outside New Zealand to another place outside New Zealand; and
includes,—
in relation to a transaction described in paragraph (a), acting as an agent for a person involved in the transaction or as an intermediary between 2 or more persons involved in the transaction; and
acquiring or storing weapons or related items in a place outside New Zealand for the purpose of transferring the weapons or related items to any person outside New Zealand; but
does not include the provision of any service that is merely ancillary to an activity described in paragraph (a) or (b) (for example, the provision of administrative, customs broking, or financial services in relation to weapons or related items).
In this Act, an overseas regime that regulates brokering activity, or that imposes export controls in relation to weapons or related items, is an equivalent overseas regime if the Secretary is satisfied that the regime is—
substantially the same as the regime under this Act; or
sufficiently equivalent, in relation to the regulation of brokering activity in accordance with the Arms Trade Treaty, to the regime under this Act.
The transitional, savings, and related provisions (if any) set out in Schedule 1 have effect according to their terms.
This Act binds the Crown.
A person must not carry out a brokering activity unless the person—
is registered as a broker; and
has a permit for the activity.
Section 10 does not apply to a person—
who carries out a brokering activity in relation to a weapon or related item that is dual-use goods; and
who, before the person carries out the brokering activity, has taken reasonable steps to ensure that the dual-use goods will not be used for a prohibited use.
who carries out a brokering activity from a place outside New Zealand; and
who complies with an equivalent overseas regime in relation to the brokering activity.
Section 10 does not apply to a person who carries out a brokering activity on behalf of the person’s employer but only if, in relation to that activity, the person has reasonable grounds to believe that the employer complies with section 10 or an equivalent overseas regime.
(4)
Section 10 does not apply in relation to anything done by or on behalf of a department.
A person commits an offence if—
the person carries out a brokering activity in breach of section 10; and
none of the exceptions described in section 11 apply to the person or the brokering activity; and
at the time that the person carries out the activity, the person knows or ought to know that (except in some circumstances) a person must not carry out a brokering activity unless the person—
It may be presumed, in the absence of any evidence to the contrary, that an exception described in section 11 does not apply.
The prosecutor need not assert, in a charging document relating to an offence against subsection (1), that an exception described in section 11 does not apply.
A person who commits an offence against subsection (1) is liable on conviction,—
in the case of an individual, to a term of imprisonment not exceeding 5 years or a fine not exceeding the amount described in subsection (5), or both:
in any other case, to a fine not exceeding the amount described in subsection (5).
(5)
The maximum amount of the fine is the greater of—
$100,000 (in the case of an individual) or $1 million (in any other case); and
if a court is satisfied that the offence occurred in the course of producing a commercial gain, and if the value of that commercial gain can be readily ascertained, 3 times the value of that commercial gain.
A broker must comply with—
any conditions of the broker’s registration; and
any conditions of a permit held by the broker.
A broker who knowingly or recklessly carries out a brokering activity in breach of section 13 commits an offence and is liable on conviction,—
in the case of an individual, to a term of imprisonment not exceeding 5 years or a fine not exceeding the amount described in subsection (2), or both:
in any other case, to a fine not exceeding the amount described in subsection (2).
A broker who, without reasonable excuse and other than in the course of carrying out a brokering activity, breaches section 13 commits an offence and is liable on conviction,—
in the case of an individual, to a term of imprisonment not exceeding 6 months or a fine not exceeding $10,000, or both:
in any other case, to a fine not exceeding $20,000.
A person may apply to the Secretary for registration as a broker.
The application must be made in accordance with section 38.
The Secretary may register a person as a broker only if the Secretary is satisfied that the person is a fit and proper person.
For the purpose of considering whether a person is a fit and proper person, the Secretary may take into account—
any conviction for any offence punishable by imprisonment for 12 months or longer, whether or not—
the conviction was in a New Zealand court; or
the offence was committed before the commencement of this Act; and
if the person has been previously registered as a broker, whether the person breached a condition of that registration or whether that registration has been cancelled; and
if the person has been given a permit under this Act, whether the person has breached a condition of that permit or whether that permit has been cancelled; and
the financial position of the person; and
whether the application for registration contains information that is false or misleading; and
any other information and evidence (including in relation to any associate of the person) that may be relevant.
If the person is a body corporate, subsection (2)(a), (b), and (c) must be read as if it refers to the body corporate and its officers.
The Secretary may, for the purposes of subsection (2),—
seek and receive any information as the Secretary thinks fit; and
consider information obtained from any source.
If the Secretary refuses to register a person as a broker, the Secretary must give the person written notice of the refusal and the reasons for it.
If the Secretary approves an application for registration, the Secretary must, as soon as practicable,—
give the broker written notice specifying the date on which the registration takes effect and the duration of the registration; and
enter the following information on the public register:
the broker’s full name and trading name:
the date of registration and the date of its expiry:
any other particulars that may be prescribed in regulations.
The Secretary may impose any conditions on a broker’s registration that are consistent with or for the purpose of—
the effective administration of this Act:
the security, defence, or international relations of New Zealand:
New Zealand’s international obligations.
The Secretary may impose the conditions when registering the broker or at any other time.
It is a condition of a broker’s registration that the broker must provide an annual report to the Secretary.
The annual report must be provided in the prescribed form and manner and contain the prescribed particulars.
A broker’s registration is effective from the date of registration until the earliest of the following:
the close of the day that is 3 years after the date of registration:
the end of the period specified by the Secretary in the written notice under section 19(a):
the cancellation or surrender of the registration.
A registration may be renewed by paying the prescribed fee (if any) to the Secretary at any time during the period that the registration is effective.
On payment of the prescribed fee, the Secretary may renew the registration for a further period determined by the Secretary (not being longer than 3 years) unless the Secretary is no longer satisfied of the matters set out in section 17.
The Secretary may, by written notice, cancel a broker’s registration if—
the Secretary is no longer satisfied of the matters set out in section 17; or
the broker breaches section 10, 13, 24, or 39(1).
The cancellation of a broker’s registration takes effect on the date specified by the Secretary in the notice, which must be a date after the date of that notice.
A broker may surrender the broker’s registration by written notice to the Secretary.
The surrender takes effect on the date specified by the broker in the notice, which must be a date after the date of that notice.
If a broker’s registration is cancelled or surrendered, any permit held by the broker under subpart 3 is cancelled at the time that the cancellation or surrender takes effect.
A broker must keep any prescribed records for a period of at least 7 years after the end of the calendar year to which the records relate.
A broker must, when required,—
make the records available to the Secretary or a constable:
provide copies of the records to the Secretary or a constable:
answer any questions in respect of the records that are asked by the Secretary or a constable.
A broker who, without reasonable excuse, fails to comply with section 24 commits an offence and is liable on conviction,—
A broker must apply to the Secretary for a permit to carry out a brokering activity.
The application may be for 1 or more transactions.
The Secretary may give a broker a permit to carry out a brokering activity if, having regard to the prescribed criteria and to any other matters that the Secretary considers appropriate, the Secretary is satisfied that the activity—
is consistent with New Zealand’s international obligations; and
would not prejudice the security, defence, or international relations of New Zealand.
The Secretary may, for the purposes of this section,—
If the Secretary refuses to give a broker a permit, the Secretary must give the broker notice of the refusal and the reasons for it.
A permit must specify the period, not longer than 3 years, for which the permit is effective.
The permit ceases to be effective on the earliest of the following:
the end of the period specified in the permit:
the cancellation or surrender of the permit:
the date on which the broker’s registration ceases to be effective.
The Secretary may impose any conditions on a permit that are consistent with or for the purpose of—
The Secretary may impose the conditions when giving the permit to the broker or at any other time.
The Secretary may, by written notice, cancel a permit given under this subpart if—
the Secretary is no longer satisfied of the matters set out in section 27; or
The cancellation takes effect on the date specified by the Secretary in the notice, which must be a date after the date of that notice.
A broker may surrender a permit by written notice to the Secretary.
This subpart applies to a person if,—
without lawful justification or reasonable excuse, the person has breached section 10, 13, 24, or 39(1); or
there are reasonable grounds to believe that the person is likely to breach section 10, 13, 24, or 39(1).
The Attorney-General may—
issue a formal warning to the person (in any prescribed manner and containing any prescribed information):
accept an enforceable undertaking from the person under section 33:
seek an order of the court under section 34 against the person for breach of an enforceable undertaking:
seek an injunction under section 35 against the person.
Compare: 2009 No 35 ss 78, 79
The Attorney-General may accept a written undertaking given by a person in connection with the person’s compliance with section 10, 13, 24, or 39(1).
The person may withdraw or vary the undertaking at any time, but only with the consent of the Attorney-General.
Compare: 2009 No 35 s 81
If the Attorney-General considers that a person who gave an undertaking under section 33 has breached 1 or more of its terms, the Attorney-General may apply to the court for an order under subsection (2).
The court may, if satisfied that a person has breached 1 or more of the terms of an enforceable undertaking, make any or all of the following orders:
an order directing the person to comply with any of the terms of the undertaking:
an order directing the person to pay to the Crown an amount up to the amount of any financial benefit that the person has obtained directly or indirectly from, and that is reasonably attributable to, the breach:
any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach.
Compare: 2009 No 35 s 82
The court may grant an injunction restraining a person from breaching section 10, 13, 24, or 39(1).
The injunction may be an interim one if the court thinks that is desirable, but the court must not—
require the Crown to give an undertaking as to damages as a condition of granting the interim injunction; or
take into account that the Crown is not required to give an undertaking as to damages.
The court may rescind or vary an injunction granted under this section.
Subsections (1) and (2) apply whether or not the person—
intends to engage again, or to continue to engage, in conduct that breaches section 10, 13, 24, or 39(1):
has previously engaged in such conduct.
The powers in this section do not limit any other powers of the High Court relating to the granting of injunctions.
Compare: 2007 No 7 s 44; 2009 No 35 ss 84, 87–89
Even if the acts or omissions alleged to constitute an offence against any of sections 12, 14, 15, 25, and 39 occurred wholly outside New Zealand, proceedings may be brought for an offence under that section—
if the person to be charged—
is a New Zealand citizen; or
is ordinarily resident in New Zealand; or
is an entity incorporated or registered under the law of New Zealand; or
if any of the acts or omissions are alleged to have occurred on board—
a ship registered, or required to be registered, under the Ship Registration Act 1992; or
a ship used as a ship of the New Zealand Defence Force; or
an aircraft registered, or required to be registered, in New Zealand under the Civil Aviation Act 1990; or
an aircraft for the time being used as an aircraft of the New Zealand Defence Force; or
an aircraft that is leased to a lessee whose principal place of business is in New Zealand, or who is a New Zealand citizen or a person ordinarily resident in New Zealand.
The following sections do not apply in respect of an offence against section 12, 14, 15, 25, or 39:
section 8 of the Crimes Act 1961 (which relates to jurisdiction in respect of crimes on ships or aircraft beyond New Zealand):
section 400 of the Crimes Act 1961 (which requires the consent of the Attorney-General to proceedings in certain cases for offences on ships or aircraft).
Nothing in this section limits the application of section 12, 14, 15, 25, or 39 in respect of—
acts or omissions that occurred wholly in New Zealand; or
the application of section 7 of the Crimes Act 1961 to the occurrence in New Zealand of—
an act or omission forming part of an offence; or
an event necessary to the completion of an offence; or
the application of section 8A of the Crimes Act 1961.
Compare: 1961 No 43 s 7A
No charging document may be filed against any person in relation to an offence under this Act unless the Attorney-General consents to the filing of the charging document.
A person alleged to have committed an offence may be arrested or a warrant for his or her arrest may be issued and executed, and he or she may be remanded in custody or on bail, even though the consent of the Attorney-General has not yet been obtained under subsection (1), but no further or other proceedings may be taken until the consent has been obtained.
An application under section 16 or 26 must—
be in the form approved by the Secretary for the purposes of that section; and
contain the information required by the form; and
be accompanied by any documents that the form requires; and
be accompanied by the fee (if any) prescribed by the regulations.
The Secretary may request an applicant to provide such additional information as the Secretary considers necessary to enable the Secretary to decide the application.
The Secretary may approve a form for the purposes of section 16 or 26.
A person must not, in relation to an application for registration or a permit under this Act, supply any information that the person knows or ought to know is materially false or misleading.
A person who breaches subsection (1) commits an offence and is liable on conviction,—
A person who has applied for registration or been registered under subpart 2 of Part 2 may appeal to the District Court against any decision of the Secretary—
to refuse to register the person as a broker:
to impose a condition on the person’s registration:
to cancel the person’s registration.
A broker who has applied for a permit or been given a permit under subpart 3 of Part 2 may appeal to the District Court against any decision of the Secretary—
to refuse to give the permit:
to impose a condition on the permit:
to cancel the permit.
An appeal under subsection (1) or (2) must be made within 30 days after the decision appealed against is given, or within any further period that the District Court may allow.
A decision against which an appeal is lodged continues in force unless the District Court orders otherwise.
An appeal under subsection (1) or (2) is by way of rehearing.
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for any or all of the following purposes:
prescribing fees or charges for applications under sections 16 and 26:
prescribing particulars of brokers that must be entered on the public register under section 19(b):
prescribing the form of the annual report to be provided under section 21, the manner in which the annual report must be provided, and the particulars that the annual report must contain:
prescribing the records to be kept under section 24:
prescribing matters to which the Secretary must have regard when considering whether to give a permit under section 27:
providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
Regulations made under subsection (1)(a) may—
make different provision for different cases on any differential basis:
prescribe any of the following:
the method by which the fees or charges are to be assessed:
the persons liable to pay the fees or charges:
when the fees or charges must be paid:
circumstances in which the fees or charges may be refunded, remitted, or waived (wholly or partly).
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Section 41(3): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
The Secretary may disclose any information held by the Secretary to an overseas authority for the purpose of assisting the authority to carry out its functions related to, or involving,—
the regulation or monitoring of brokering activity:
the prevention, detection, investigation, prosecution, or punishment of offences that are, or if committed in New Zealand would be, offences under this Act.
Information may be disclosed under this section if—
the information is disclosed subject to conditions stating—
the use that the overseas authority may make of the information; and
either—
that the overseas authority must not disclose the information to any other agency, body, or person; or
that the overseas authority may disclose the information, or part of it, to a specified agency, body, or person subject to certain conditions; and
the Secretary makes and keeps a record of—
the information that was disclosed; and
the overseas authority or authorities to which it was disclosed; and
the conditions subject to which it was disclosed.
In this section, overseas authority means an overseas agency, body, or person.
This section does not prevent or limit any disclosure of information that is required or authorised by or under any law, or under any treaty, agreement, or arrangement concluded by the Government of New Zealand.
The Secretary must keep and maintain a register of brokers.
The Secretary must ensure that the register is available to the public on an Internet site maintained by or on behalf of the Secretary.
The register must show in relation to each registered broker—
the information described in section 19(b); and
a statement as to whether the broker’s registration is subject to any conditions.
Despite subsection (3)(a), the Secretary may omit or remove any particular prescribed in regulations made under section 19(b)(iii) from a public register if—
the person requests the Secretary to do so on the basis that the particular is personal information; and
the Secretary considers that the disclosure of the information on the public register would constitute an unreasonable interference with the privacy of any individual.
Section 44: repealed, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31).
s 8
This clause applies if section 5 comes into force before the specified date (within the meaning of section 2 of the Customs and Excise Act 2018).
Until the specified date (within the meaning of section 2 of the Customs and Excise Act 2018), the definitions of goods and strategic goods list in section 5(1) must be treated as if they read—
has the meaning given in section 2(1) of the Customs and Excise Act 1996; but
also includes documents that are not otherwise goods within that meaning
strategic goods list means the list of all goods and classes of goods whose exportation is prohibited under section 56 of the Customs and Excise Act 1996 because they have or may have a strategic use (within the meaning of section 56(2A) of that Act) that the Secretary is required to maintain and to publish under section 56(2G) and (2H) of that Act.
s 44
Schedule 2: repealed, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31).
This is a consolidation of the Brokering (Weapons and Related Items) Controls Act 2018 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.
A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.
Section 78 of the Legislation Act 2019 provides that this consolidation, published as an electronic version, is an official version. A printed version of legislation that is produced directly from this official electronic version is also an official version.
The Parliamentary Counsel Office makes editorial and format changes to consolidations using the powers under subpart 2 of Part 3 of the Legislation Act 2019. See also PCO editorial conventions for consolidations.
Secondary Legislation Act 2021 (2021 No 7): section 3
Privacy Act 2020 (2020 No 31): section 217