Proceeds of Crime Act 1991

1: Short Title and commencement
1: This Act may be cited as the Proceeds of Crime Act 1991.
2: This Act shall come into force on the 1st day of July 1992.
1: Preliminary provisions
Interpretation
2: Interpretation
1: In this Act, unless the context otherwise requires,— Confiscation order Criminal proceedings Criminal proceedings: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Document section 2(1) Official Information Act 1982 drug-dealing offence section 6 Misuse of Drugs Act 1975 Schedule 5 drug-dealing offence: this definition was substituted 22 June 2005 23 Misuse of Drugs Amendment Act 2005 Encumbrance Financial institution
a: A life insurance company, being a company as defined in section 2 Life Insurance Act 1908
b: A building society as defined in section 2 Building Societies Act 1965
c: A registered bank within the meaning of the Reserve Bank of New Zealand Act 1989
d: A friendly society or credit union registered or deemed to be registered under the Friendly Societies and Credit Unions Act 1982
e: A registered society within the meaning of the Industrial and Provident Societies Act 1908
f: A specified person or class of persons (including a body or bodies of persons, whether incorporated or not) engaged in the business of borrowing and lending money, or providing financial services, or both, who is or are declared by the Governor-General, by Order in Council, to be a financial institution or institutions for the purposes of Part 5 Foreign drug-dealing offence Mutual Assistance Act Foreign drug-dealing offence: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Foreign forfeiture order Mutual Assistance Act Foreign forfeiture order: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Foreign pecuniary penalty order Mutual Assistance Act Foreign pecuniary penalty order: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Foreign restraining order Mutual Assistance Act Foreign restraining order: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Foreign serious offence Mutual Assistance Act Foreign serious offence: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Forfeiture order section 15(1) Interest
a: A legal or equitable estate or interest in the property; or
b: A right, power, or privilege in connection with the property: international crime section 4(1) International Crimes and International Criminal Court Act 2000 international crime: this definition was inserted 1 July 2002 187(1) International Crimes and International Criminal Court Act 2000 See clause 2(f) International Crimes and International Criminal Court Act Commencement Order 2002 Minister Monitoring order section 77(1) Mutual Assistance Act Mutual Assistance in Criminal Matters Act 1992 Mutual Assistance Act: this definition was inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Official Assignee Pecuniary penalty order section 25(1) Proceeds Production order section 69(1) Property Relevant application period
a: The day on which the person was convicted, where section 3(1)(a)
b: The day on which the person was discharged without conviction, where section 3(1)(b)
c: The day on which the person is treated as having absconded in connection with the offence, where section 3(1)(c) Relevant serious offence relevant offence Restraining order section 42 Serious offence tainted property
a: in relation to a serious offence, means—
i: property used to commit, or to facilitate the commission of, the offence; or
ii: proceeds of the offence; and
b: when used without reference to a particular offence, means tainted property in relation to any serious offence; and
c: in relation to a serious offence that is an offence against section 8(1) (2A) Terrorism Suppression Act 2002 section 4(1)
d: in relation to a foreign serious offence that, if committed within the jurisdiction of New Zealand, would correspond to an offence against section 8(1) (2A) Terrorism Suppression Act 2002 tainted property: this definition was substituted 18 October 2002 81 Terrorism Suppression Act 2002 tainted property: paragraph (c) amended 22 June 2005 8 Terrorism Suppression Amendment Act 2005 section 8(1) or (2A) section 8(1) tainted property: paragraph (d) amended 22 June 2005 8 Terrorism Suppression Amendment Act 2005 section 8(1) or (2A) section 8(1)
2: A reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence.
3: A reference in this Act to a benefit derived by a person includes a reference to—
a: A benefit derived, directly or indirectly, by the person; and
b: A benefit derived, directly or indirectly, by another person at the request or direction of the first person.
4: For the purposes of this Act, 2 serious offences are related to one another if the elements of the 2 offences comprise substantially the same act or omission.
5: For the purposes of this Act, a person is proceeded against by indictment for an offence if proceedings against that person for that offence are commenced by the laying of an information in form 2 in Schedule 2 Summary Proceedings Act 1957
3: Meaning of
conviction
1: For the purposes of this Act, a person shall be treated as having been convicted on indictment of a serious offence if—
a: The person is proceeded against by indictment and convicted of the offence:
b: The person is proceeded against by indictment and found guilty of, or pleads guilty to, the offence but is discharged without conviction:
c: The person absconds in connection with the offence.
2: For the purposes of this Act, a person's conviction of an offence shall be treated as having been quashed,—
a: Where subsection (1)(a)
b: Where subsection (1)(b)
c: Where subsection (1)(c)
3: Where a person is treated as having been convicted of an offence by reason of subsection (1)(c) Proceeds of Crime Act 1987 (Aust), s 5
4: Meaning of
absconding
1: For the purposes of this Act, a person shall be treated as having absconded in connection with an offence only if—
a: An information is laid charging the person with the commission of the offence; and
b: A warrant for the arrest of the person is issued in relation to that information; and
c: At the end of the period of 6 months after the warrant was issued, the person—
i: Cannot be found; or
ii: By reason of being outside New Zealand, is not amenable to justice.
2: If, at the end of the period referred to in subsection (1)(c) Proceeds of Crime Act 1987 (Aust), s 6
5: Meaning of
dealing with property For the purposes of this Act, dealing with property of a person includes—
a: If a debt is owed to that person, making a payment to any person in reduction of the debt:
b: Removing the property from New Zealand:
c: Receiving or making a gift of the property. Proceeds of Crime Act 1987 (Aust), s 9 Application
6: Act to bind the Crown
This Act binds the Crown.
7: Application
1: Subject to subsection (2)
2: Subsection (1) Subsection (2) inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Section 7 amended 1 April 1993 Proceeds of Crime Amendment Act 1992 by adding the words Subject to subsection (2) of this section
2: Confiscation
Applications for confiscation orders
8: Application for confiscation order
1: Where a person is convicted on indictment of a serious offence, the Solicitor-General may, at any time before the expiration of the relevant application period, apply to the appropriate Court for one or both of the following orders:
a: A forfeiture order against property that is tainted property in respect of the offence:
b: A pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.
2: For the purposes of this section, the appropriate Court, in relation to the person in respect of whose conviction for a serious offence a confiscation order is sought, is—
a: The Court before which that person was sentenced, or is due to appear for sentence, in respect of that offence; or
b: Where that person is treated as having been convicted of the offence by reason of section 3(1)(c)
3: An application may be made under this section in relation to one or more serious offences.
4: If an application under paragraph (a) (b)
5: The Court shall not grant leave under subsection (4)
a: That—
i: The tainted property or, as the case requires, the benefit to which the new application relates was identified only after the previous application was determined; or
ii: Evidence necessary to support the new application was not reasonably available at the time of the hearing of the previous application; and
b: That it is in the interests of justice to grant the leave. Proceeds of Crime Act 1987 (Aust), s 14
9: Application to identify tainted property or benefit
Every application made under section 8
a: In the case of an application for a forfeiture order, identify the property that is alleged to be tainted property in respect of the offence:
b: In the case of an application for a pecuniary penalty order, identify the benefits that are alleged to have been derived from the commission of the offence.
10: Notice of application
1: Where an application is made for a forfeiture order against property in respect of a person's conviction of a serious offence,—
a: The applicant shall serve notice of the application on that person and on any other person the applicant has reason to believe may have an interest in the property:
b: The Court may, at any time before the final determination of the application, direct the applicant to serve notice of the application on a specified person or class of persons, in such manner and within such time as the Court thinks fit:
c: The person in respect of whose conviction the application is made and any other person who claims an interest in the property are entitled to appear and to adduce evidence at the hearing of the application.
2: Where an application is made for a pecuniary penalty order against a person convicted of a serious offence,—
a: The applicant shall serve notice of the application on that person:
b: The person is entitled to appear and to adduce evidence at the hearing of the application. Proceeds of Crime Act 1987 (Aust), s 15
11: Notice of application may be recorded on register
1: Where—
a: An application is made for a forfeiture order against property of a particular kind; and
b: The provisions of any New Zealand enactment provide for the registration of title to, or charges over, property of that kind,— the Court may, at any time before the final determination of the application, by order, direct the authority responsible for administering those provisions to enter on the register a note of the fact that an application has been made under this Act for a forfeiture order against the property, and the authority shall give effect to the order accordingly.
2: Where—
a: Any entry is made in a register pursuant to an order made under subsection (1)
b: Any of the following occurs, namely—
i: The application to which the entry relates is finally determined; or
ii: Proceedings on the application to which the entry relates are discontinued, whether because the application is withdrawn or for any other reason; or
iii: The application to which the entry relates is amended so as to exclude the property in respect of which the entry is made,— the Court shall, by order, direct the relevant authority to cancel the entry, and the authority shall give effect to the order accordingly.
12: Amendment of application
1: Subject to subsection (2)
2: The Court shall not amend the application—
a: To include additional property in an application for a forfeiture order; or
b: To include an additional benefit in an application for a pecuniary penalty order— unless the Court is satisfied that—
c: The property or benefit was not reasonably capable of identification when the application was made; or
d: Evidence necessary to support the application in relation to that property or benefit became available only after the application was made.
3: Where the application is amended in the manner described in subsection (2)
a: Direct the applicant to serve notice of the amendment on the person in respect of whose conviction the application was made:
b: In the case of an application for a forfeiture order, direct the applicant to serve notice of the application (as so amended) on any person whom the applicant has reason to believe may have an interest in the additional property included in the application. Proceeds of Crime Act 1987 (Aust), s 16
13: Making of confiscation order where person has absconded
Where a person is, by reason of section 3(1)(c)
a: The Court is satisfied, on the balance of probabilities, that the person has absconded; and
b: The Court is satisfied, beyond reasonable doubt, that the person is guilty of the offence. Proceeds of Crime Act 1987 (Aust), s 17
14: Procedure on application
1: Where an application for a confiscation order is made in respect of a person's conviction of a serious offence, the Court may, in determining the application, take into account—
a: Any evidence given in the proceedings taken against that person for the offence, including (but without limiting the generality of the foregoing)—
i: Any documents, exhibits, or other things connected with the proceedings that the Court considers relevant:
ii: Any note or transcript of the evidence admitted in the proceedings:
b: Any sanction imposed pursuant to the person's conviction (whether imposed on sentence or prescribed by law), being a sanction in the nature of a pecuniary penalty or forfeiture of property.
2: If an application is made to the Court before which the person is due to appear for sentence, the Court may defer the passing of sentence until it has determined the application for the confiscation order. Proceeds of Crime Act 1987 (Aust), s 18 Forfeiture orders
15: Forfeiture orders
1: On the hearing of an application for a forfeiture order in respect of a person's conviction of a serious offence, the Court may, if it is satisfied that property specified in the application is tainted property in respect of the offence, order that such of the property as is specified by the Court is forfeited to the Crown.
2: In considering whether or not to make an order under subsection (1)
a: The use that is ordinarily made, or was intended to be made, of the property; and
b: Any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and
c: The nature and extent of the offender's interest in the property (if any), and the nature and extent of any other person's interest in it (if any); and
d: In addition to the matter referred to in section 14(1)(b)
3: A Court that makes a forfeiture order against property may, if it considers that it is appropriate to do so, by order,—
a: Declare the nature, extent, and value of any person's interest in the property; and
b: Declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged pursuant to section 22
4: Where the Court orders that property (other than money) is forfeited to the Crown, the Court shall specify in the order the amount that it considers to be the value of the property at the time the order is made.
5: Where a Court makes a forfeiture order, the Court may give such directions as are necessary and convenient for giving effect to the order.
6: Without limiting the generality of subsection (5)
7: Sections 31 to 34 subsection (6) section 30 Proceeds of Crime Act 1987 (Aust) s 19
16: Effect of forfeiture order
1: Where a Court makes a forfeiture order against property, the property shall vest absolutely in the Crown to the extent of the interest specified in the order.
2: Nothing in subsection (1) section 99 Land Transfer Act 1952
3: Where a Court makes a forfeiture order in respect of an estate or interest in land, the order shall be transmitted by the Registrar of the Court to the District Land Registrar or the Registrar of Deeds, as the case may be, for the purposes of registration under the Land Transfer Act 1952 Deeds Registration Act 1908
4: Where a Court makes a forfeiture order against any property,—
a: Except with the leave of the Court that made the forfeiture order, the property that is forfeited to the Crown under the order shall not be disposed of, or otherwise dealt with, by or on behalf of the Crown, until the expiry of the relevant appeal period; and
b: On the expiry of the relevant appeal period, if the forfeiture order has not been discharged, the property may be disposed of, or otherwise dealt with, in accordance with any direction of the Minister.
5: For the purposes of this section expiry of the relevant appeal period
a: The end of the appeal period in relation to the making of the forfeiture order; or
b: The end of the appeal period in relation to the person's conviction on which the order is based,— whichever is the later.
6: For the purposes of this section, appeal period
a: When the time for bringing an appeal against the decision of the Court expires, if no such appeal has been brought; or
b: If an appeal against the decision of the Court has been brought, when the appeal is finally determined or is withdrawn, whichever occurs first. Proceeds of Crime Act 1987 (Aust), s 20
17: Third parties may apply for relief
1: Where an application is made for a forfeiture order, a person who claims an interest in any of the property specified in the application may apply, before the forfeiture order is made, to the Court for an order under section 18
2: Where a Court makes a forfeiture order against any property, any person who claims an interest in any of the property specified in the order may apply to the Court for an order under section 18
3: The person in respect of whose conviction the forfeiture order is sought or was made may not apply under subsection (1) (2)
4: A person on whom notice of the application for a forfeiture order, or of any amendment to the application, was served, or who appeared at the hearing of the application, may not apply under subsection (2)
5: The Court shall not grant leave under subsection (4)
6: Without limiting the generality of subsection (5) subsection (4)
a: That the applicant had good reason for failing to attend the hearing of the application for the forfeiture order; or
b: That evidence proposed to be adduced by the applicant in connection with the application under subsection (2)
7: A person who makes an application under subsection (1) (2) Proceeds of Crime Act 1987 (Aust), s 21
18: Court may grant relief to third party
1: Where—
a: A person applies to the Court under subsection (1) (2)
b: The Court is satisfied that the applicant's claim to that interest is valid,— the Court shall, subject to subsection (2)
c: Declaring the nature, extent, and value of the applicant's interest in the property; and
d: Either—
i: Directing the Crown to transfer the interest to the applicant; or
ii: Declaring that there is payable by the Crown to the applicant an amount equal to the value of the interest declared by the Court; or
iii: In the case of an application under section 17(1)
2: The Court may refuse to make an order under subsection (1)
a: The applicant was, in any respect, involved in the commission of the offence in respect of which forfeiture of the property is or was sought; or
b: If the applicant acquired the interest at the time of or after the commission of the offence, the applicant did not acquire the interest in the property in good faith and for value, without knowing or having reason to believe that the property was, at the time of the acquisition, tainted property,— but nothing in this subsection shall be taken to require such a refusal. Proceeds of Crime Act 1987 (Aust), s 21(6)
19: Discharge of forfeiture order on appeal or by quashing of conviction
1: Where a Court makes a forfeiture order against property in respect of a person's conviction of a serious offence, and the conviction is subsequently quashed, the quashing of the conviction shall operate to discharge the forfeiture order.
2: Where a forfeiture order in respect of any property is discharged as provided in subsection (1)
a: As soon as practicable after the discharge of the order, serve notice of the discharge of the forfeiture order on any person the Solicitor-General has reason to believe may have had an interest in the property immediately before the making of the order; and
b: If required to do so by a Court, serve notice of the discharge of the forfeiture order on any specified person or class of persons, in such manner and within such period as is directed by the Court.
3: Every notice under subsection (2) subsection (4)
4: Where a forfeiture order is discharged in either of the ways referred to in subsection (2)
5: If the Minister is satisfied that any claim made under subsection (4)
a: If the interest is still vested in the Crown, arrange for the interest to be transferred to the claimant; or
b: In any other case, and subject to section 21 Proceeds of Crime Act 1987 (Aust), s 22
20: Minister may apply for directions
1: In any case where there is any question as to the validity of any claim made pursuant to section 19(4)
2: Where an application is made under subsection (1)
a: The Minister shall serve notice of the application on every person that the Minister has reason to believe may have an interest in the application:
b: The Court may, at any time before the final determination of the application, direct the Minister to serve notice of the application on a specified person or class of persons, in such manner and within such time as the Court thinks fit:
c: Every person who claims an interest in the application is entitled to appear and to adduce evidence at the hearing of the application.
21: Double benefit not permitted
Where, on any application made under section 17 section 18(1)(d)(ii) section 19(5)(b)
22: Person may buy back interest in forfeited property
Where a Court—
a: Makes a forfeiture order against any property; and
b: Makes an order under subsection (3) the payment to the Crown, while the interest is still vested in the Crown, of the amount specified in the order under that subsection as the value of the interest shall operate to discharge the forfeiture order to the extent to which it relates to the interest, and the Minister shall arrange for the interest to be transferred to the person in whom it was vested immediately before the forfeiture order was made. Proceeds of Crime Act 1987 (Aust), s 33
23: Buying out other interests in forfeited property
1: Where—
a: Any property is forfeited to the Crown under a forfeiture order; and
b: An interest in that property is required to be transferred to any person (in this section called the purchaser section 19(5) 22 section 18(1)(d)(i)
c: Immediately before the forfeiture took place, there existed other interests in that property,— the purchaser may give written notice to each other person who had such an interest in the property that the purchaser intends to purchase that other interest from the Crown.
2: Any person who receives such a notice may, within 21 days after receipt of the notice, lodge a written objection to the purchase of that interest with the Minister.
3: Where the purchaser complies with the requirements of subsection (1)
a: A written objection to the purchase of the interest is not lodged with the Minister within the period referred to in subsection (2)
b: The purchaser pays to the Crown, while that interest is still vested in the Crown, an amount equal to the value of that interest,— the Minister shall arrange for that interest to be transferred to the purchaser. Proceeds of Crime Act 1987 (Aust), s 34 Registered foreign forfeiture orders
23A: Registered foreign forfeiture orders
Where a foreign forfeiture order against property is registered in New Zealand in accordance with section 56 Mutual Assistance Act
a: This Part of this Act (other than sections 15(3) 16(4) to (6) 17 to 23
b: The property may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised, in writing, by the Attorney-General for the purposes of this paragraph. Proceeds of Crime Act 1987 (Aust), s 23 Sections 23A to 23D inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
23B: Third parties to be notified of registration of foreign forfeiture order
Where, in accordance with section 56 Mutual Assistance Act
a: On a specified person or specified persons (other than a person convicted of a foreign serious offence in respect of which the foreign forfeiture order was made) whom the Court has reason to believe may have an interest in the property; and
b: In such manner and within such time as the Court thinks fit. Proceeds of Crime Act 1987 (Aust), s 23A(2) Sections 23A to 23D inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
23C: Third parties may apply for relief
1: Where a foreign forfeiture order against property is registered in New Zealand in accordance with section 56 Mutual Assistance Act section 23D
2: A person on whom notice of the hearing held in connection with the making of the foreign forfeiture order was served, or who appeared at the hearing, may not apply under subsection (1)
3: The Court shall not grant leave under subsection (2)
4: Without limiting the generality of subsection (3) subsection (2)
a: That the applicant had good reason for failing to attend the hearing held in connection with the making of the foreign forfeiture order; or
b: That evidence proposed to be adduced by the applicant in connection with the application under subsection (1)
5: Subject to subsection (6) subsection (1)
6: The Court may grant a person leave to apply under subsection (1) subsection (5)
7: A person who makes an application under subsection (1) Proceeds of Crime Act 1987 (Aust), s 23A(3)-(6), (8)-(11) Sections 23A to 23D inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
23D: Court may grant relief to third party
1: Where—
a: A person applies to the Court under section 23C(1)
b: The Court is satisfied that the applicant's claim to that interest is valid,— the Court shall, subject to subsection (2)
c: Declaring the nature, extent, and value of the applicant's interest in the property; and
d: Either—
i: Directing the Crown to transfer the interest to the applicant; or
ii: Declaring that there is payable by the Crown to the applicant an amount equal to the value of the interest declared by the Court.
2: The Court may refuse to make an order under subsection (1)
a: The applicant was, in any respect, involved in the commission of the offence in respect of which the foreign forfeiture order was made; or
b: If the applicant acquired the interest at the time of or after the commission of the offence, the applicant did not acquire the interest in the property in good faith and for value, without knowing or having reason to believe that the property was, at the time of the acquisition, tainted property,— but nothing in this subsection shall be taken to require such a refusal. Sections 23A to 23D inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Pecuniary penalty orders
24: Application
1: Sections 25 to 29
a: Benefits that are provided to or derived by a person either within or outside New Zealand and either before or after the commencement of this Act:
b: Property that comes into the possession, or under the control, of a person either within or outside New Zealand and either before or after the commencement of this Act.
2: Despite subsection (1), sections 25 to 29 Proceeds of Crime Act 1987 (Aust), s 24 Section 24(2) added 17 November 2007 section 17 Succession (Homicide) Act 2007
25: Pecuniary penalty orders
1: On the hearing of an application for a pecuniary penalty order in respect of benefits derived by a person from the commission of a serious offence, the Court may, if it is satisfied that the person derived benefits from the commission of that offence,—
a: Assess, in accordance with sections 27 28
b: Order the person to pay to the Crown a pecuniary penalty not greater than the penalty amount.
2: The penalty amount is the value of the benefits assessed under sections 27 28
a: An amount equal to the value of any property that has been forfeited, or is proposed to be forfeited, to the Crown under this Part of this Act as proceeds of the relevant serious offence; and
b: An amount equal to the value of any pecuniary penalty that has already been imposed, in respect of the benefit, under this Act or any other enactment; and
c: Any further amount which the Court considers appropriate to take into account, after having regard to the matter referred to in section 14(1)(b)
3: A pecuniary penalty order against a person may be enforced as if it were an order made in civil proceedings instituted by the Crown against the person to recover a debt due by that person to the Crown. Proceeds of Crime Act 1987 (Aust), s 26(1)-(5), (9)
26: Variation of pecuniary penalty order
1: Where—
a: A Court makes a pecuniary penalty order; and
b: In calculating the penalty amount, the Court took into account a forfeiture of, or proposed forfeiture order in respect of, any property; and
c: The forfeiture order is discharged on appeal against the making of the order, or the proceedings for the proposed forfeiture order terminate without the proposed order being made,— the Solicitor-General may apply to the Court for a variation of the pecuniary penalty order to increase the amount payable to the Crown by the value of the property taken into account under section 25(2)(a)
2: On an application under subsection (1) Proceeds of Crime Act 1987 (Aust), s 26(6)
27: Assessment of pecuniary penalty
1: In this section and in section 28 offence period
2: For the purposes of an application for a pecuniary penalty order, the value of the benefits derived by a person (in this subsection referred to as the defendant
a: The money, or the value of the property other than money, that came into the possession or under the control of—
i: The defendant; or
ii: Another person at the request or direction of the defendant— by reason of the commission of the offence or any of the offences:
b: The value of any other benefit provided to—
i: The defendant; or
ii: Another person at the request or direction of the defendant— by reason of the commission of the offence or any of the offences:
c: The value of the defendant's property,—
i: Where the application relates to a single offence, before and after the commission of the offence; or
ii: Where the application relates to 2 or more offences, before, during, and after the offence period.
3: In calculating, for the purposes of a pecuniary penalty order, the value of benefits derived by a person from the commission of an offence or offences, any expenses or outgoings of that person in connection with the commission of the offence or offences shall be disregarded.
4: For the purposes of this section and section 28 Insolvency Act 2006 Proceeds of Crime Act 1987 (Aust), 27(1), (2), (8), (9) Section 27(4) amended 3 December 2007 section 445 Insolvency Act 2006
28: Further provisions relating to assessment of pecuniary penalty
1: Where an application for a pecuniary penalty order is made in respect of a single offence, and the Court is satisfied that the value of the defendant's property after the commission of the offence exceeded the value of the defendant's property before the commission of the offence, then, for the purposes of section 27 subsection (3)
2: Where an application for a pecuniary penalty order is made in respect of 2 or more offences, and the Court is satisfied that the value of the defendant's property at any time during or after the offence period exceeded the value of the defendant's property before the offence period, then, for the purposes of section 27 subsection (3)
3: Notwithstanding anything in subsection (1) subsection (2) section 27
4: Where an application for a pecuniary penalty order is made in relation to 1 or more drug-dealing offences,—
a: All the property of the defendant at the time the application is made; and
b: All the property of the defendant at any time—
i: Within the period between the day the offence, or the earliest offence, was committed and the day on which the application is made; or
ii: Within the period of 2 years immediately before the day on which the application is made,— whichever is the shorter— shall be presumed, unless the contrary is proved, to be property that came into the possession or under the control of the defendant by reason of the commission of the offence or offences. Proceeds of Crime Act 1987 (Aust) s 27(4)-(6)
29: Court may lift corporate veil, etc
1: In assessing the value of benefits derived by a person from the commission of an offence or offences, the Court may treat as property of that person any property that the Court is satisfied is subject to the effective control of the person whether or not the person has—
a: Any legal or equitable estate or interest in the property; or
b: Any right, power, or privilege in connection with the property.
2: Without limiting the generality of subsection (1)
a: Shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in the property; and
b: Any trust that has a relationship to the property; and
c: Family, domestic, and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) paragraph (b)
3: Where a Court, for the purposes of making a pecuniary penalty order against a person, treats particular property as that person's property under subsection (1)
4: Where a Court declares that property is available to satisfy a pecuniary penalty order,—
a: The pecuniary penalty order may be enforced against the property as if the property were the property of the person against whom the order is made; and
b: A restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.
5: Where the Solicitor-General applies for an order under subsection (3)
a: The Solicitor-General shall serve notice of the application on that person and on any person whom the Solicitor-General has reason to believe may have an interest in the property; and
b: That person and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application. Proceeds of Crime Act 1987 (Aust), s 28
29A: Registered foreign pecuniary penalty orders
Where a foreign pecuniary penalty order is registered in New Zealand in accordance with section 56 Mutual Assistance Act Section 29A inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
3: Search warrants
Issue of search warrants
30: Warrant to search and seize tainted property
1: Any District Court Judge who, on an application in writing made on oath, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing any property that is tainted property in respect of a serious offence may issue a search warrant in respect of that tainted property.
2: An application for a warrant under subsection (1)
3: A District Court Judge shall not issue a warrant under subsection (1)
4: A warrant may be issued under subsection (1) Proceeds of Crime Act 1987 (Aust), s 36
31: Form and content of search warrant
1: Every warrant issued under section 30
2: Every warrant issued under section 30
3: Every warrant issued under section 30
4: Every warrant issued under section 30
a: The place or thing that may be searched pursuant to the warrant:
b: The offence or offences in respect of which the warrant is issued:
c: A description of the kind of property that is authorised to be seized:
d: The period during which the warrant may be executed, being a period not exceeding 14 days from the date of issue:
e: Any conditions specified by the Judge pursuant to subsection (3)
32: Powers conferred by warrant
1: Subject to any special conditions specified in the warrant pursuant to section 31(3) section 30
a: To enter and search the place or thing specified in the warrant at any time by day or night during the currency of the warrant; and
b: To use such assistants as may be reasonable in the circumstances for the purpose of the entry and search; and
c: To use such force as is reasonable in the circumstances for the purposes of effecting entry, and for breaking open anything in or on the place searched; and
d: To search for and seize any property of the kind described in the warrant that the person executing the warrant believes on reasonable grounds to be tainted property in respect of the relevant serious offence.
2: Every person called upon to assist any member of the Police executing a warrant issued under section 30 paragraphs (c) (d)
3: If a member of the Police, in the course of executing a warrant issued under section 30
a: Tainted property in respect of a serious offence other than an offence specified in the warrant; or
b: Tainted property in relation to any offence specified in the warrant, although not of a kind specified in the warrant,— the warrant shall be sufficient authority to seize that property if the member of the Police believes on reasonable grounds that seizure is necessary to prevent the loss, destruction, or concealment of the property. Proceeds of Crime Act 1987 (Aust), s 36(3), (4), (8), (9)
32A: Power to stop vehicles
If it is necessary for a member of the Police to stop a vehicle for the purpose of exercising a search power conferred by section 32(1) sections 314B to 314D Crimes Act 1961 section 32(1) This section was inserted 1 January 1998 25 Crimes Amendment Act (No 2) 1997
33: Person executing warrant to produce evidence of authority
Every member of the Police executing any warrant issued under section 30
a: Shall have that warrant with him or her; and
b: Shall produce it on initial entry and, if requested, at any subsequent time; and
c: Shall, if requested at the time of the execution of the warrant or at any subsequent time, provide a copy of the warrant within 7 days after the request is made.
34: Notice of execution of warrant
Every member of the Police who executes a warrant issued under section 30
a: The date and time of the execution of the warrant; and
b: The identity of the person who executed the warrant; and
c: The property seized under the warrant.
35: Commissioner of Police to hold property
Where property is seized pursuant to a warrant issued under section 30 Proceeds of Crime Act 1987 (Aust), s 39 Dealing with seized property
36: Return of seized property
1: Subject to subsections (2) to (4) sections 37 38 section 30
2: Subject to sections 37 38
a: Any property is seized pursuant to a warrant issued under section 30
b: At the time when the property was seized, an information had not been laid in respect of a relevant serious offence; and
c: No such information is laid within 48 hours after the time when the property was seized,— the Commissioner of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after that period of 48 hours has expired.
3: Subject to sections 37 38
a: Any property is seized pursuant to a warrant issued under section 30
b: Either—
i: Before the property was seized, a person had been convicted of a relevant serious offence or an information had been laid in respect of a relevant serious offence; or
ii: An information was laid in respect of a relevant serious offence within 48 hours after the time when the property was seized; and
c: No forfeiture order has been made against the property within the period of 14 days after the property was seized,— the Commissioner of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the period of 14 days has expired.
4: Where—
a: Any property has been seized pursuant to a warrant issued under section 30
b: An application for a restraining order or a forfeiture order is made in respect of the property and refused; and
c: The property is in the possession of the Commissioner of Police at the time the application is refused,— the Commissioner of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the refusal. Proceeds of Crime Act 1987 (Aust), s 40(3), (4), (8)
37: Retention of seized property where forfeiture order or restraining order made
1: Where—
a: Any property is seized pursuant to a warrant issued under section 30
b: But for this subsection, the Commissioner of Police would be required, pursuant to subsection (2) (3)
c: Before the end of that period, a restraining order is made in relation to the property,— the following provisions shall apply:
d: If the restraining order directs the Official Assignee to take custody and control of the property, the Commissioner of Police shall arrange for the property to be given to the Official Assignee in accordance with that order:
e: If the High Court has made an order under subsection (2)
2: Where a restraining order is made in relation to property within the period referred to in subsection (1)(c)
3: Where a forfeiture order is made in respect of any property that is in the possession of the Commissioner of Police pursuant to section 35 Proceeds of Crime Act 1987 (Aust), s 40(5), (6), (9)
38: Application for return of seized property
1: Where any property has been seized pursuant to a warrant issued under section 30
2: An application may be made under subsection (1) sections 36 37
3: Where any person makes an application under subsection (1)
a: The applicant is entitled to possession of the property; and
b: The property is not tainted property in relation to a relevant serious offence; and
c: The person in respect of whose conviction, charging, or proposed charging the property was seized has no interest in the property,— the Court shall order the Commissioner of Police to arrange for the property to be returned to the applicant. Proceeds of Crime Act 1987 (Aust), s 40(1), (2) Search warrants in relation to foreign offences
38A: Search warrant may be issued in relation to foreign offence
1: Where a commissioned officer of the Police is authorised, under section 59 Mutual Assistance Act
2: This Part of this Act (other than sections 30(4) 32(3) 36 to 38 subsection (1)
3: This section applies with any necessary modifications if a person or body is authorised, under section 112 International Crimes and International Criminal Court Act 2000 Proceeds of Crime Act 1987 (Aust), s 42(1) Sections 38A to 38E inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Subsection (3) inserted 1 July 2002 187(2) International Crimes and International Criminal Court Act 2000 See clause 2(f) International Crimes and International Criminal Court Act Commencement Order 2002
38B: Powers conferred by warrant in relation to foreign serious offence
Without limiting subsections (1) (2) section 38A(2) section 30
a: Tainted property in relation to the foreign serious offence although not of a kind specified in the warrant; or
b: Tainted property in relation to another foreign serious offence in respect of which a search warrant issued under section 30 the warrant shall be sufficient authority to seize that property if the member of the Police believes, on reasonable grounds, that seizure is necessary to prevent the loss, destruction, or concealment of the property. Proceeds of Crime Act 1987 (Aust), s 42(2) Sections 38A to 38E inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
38C: Return of seized property
Where—
a: Property is seized pursuant to a warrant issued under section 30
b: At the end of the period of 1 month commencing on the day after the day on which the property was seized,—
i: Neither a foreign restraining order nor a foreign forfeiture order in relation to the property has been registered in New Zealand under the Mutual Assistance Act
ii: A restraining order in respect of the property has not been made under this Act in relation to the foreign serious offence,— the Commissioner of Police shall arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period of 1 month. Proceeds of Crime Act 1987 (Aust), s 42(5) Sections 38A to 38E inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
38D: Retention of seized property
1: Where—
a: Any property is seized pursuant to a warrant issued under section 30
b: Before the end of the period referred to in section 38C
i: A foreign restraining order in relation to the property is registered in New Zealand under the Mutual Assistance Act
ii: A restraining order in respect of the property is made under this Act in relation to the foreign serious offence,— the following provisions shall apply:
c: If there is in force, at the end of that period, a direction by a Court that the Official Assignee take custody and control of the property, the Commissioner of Police shall arrange for the property to be given to the Official Assignee in accordance with the direction:
d: If there is in force at the end of that period an order under subsection (2)
e: If neither paragraph (c) (d)
2: Where—
a: Any property is seized pursuant to a warrant issued under section 30
b: Either—
i: A foreign restraining order in respect of the property is registered in New Zealand under the Mutual Assistance Act; or
ii: A restraining order in respect of the property is made under this Act in relation to the foreign serious offence; and
c: At the time when the restraining order is made or registered, the property is in the possession of the Commissioner of Police,— the Commissioner may apply to the High Court for an order that the Commissioner retain possession of the property, and the Court may, if it is satisfied that the property is required by the Commissioner to be dealt with in accordance with a request made under the Mutual Assistance Act by the foreign country that requested the registration of, or the obtaining of, the restraining order, make an order that the Commissioner may retain the property for so long as the property is required for that purpose.
3: Where—
a: Any property is seized pursuant to a warrant issued under section 30
b: While the property is in the possession of the Commissioner of Police, a foreign forfeiture order in respect of the property is registered in New Zealand under the Mutual Assistance Act the Commissioner shall deal with the property as required by the forfeiture order. Proceeds of Crime Act 1987 (Aust), s 42(6)-(8) Sections 38A to 38E inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
38E: Application for return of seized property
1: Where any property has been seized pursuant to a warrant issued under section 30
2: An application may be made under subsection (1) sections 38C 38D
3: Where a person makes an application under subsection (1)
a: That the applicant is entitled to possession of the property; and
b: That the property is not tainted property in relation to the relevant foreign serious offence; and
c: That the person who is alleged to have committed the relevant foreign serious offence has no interest in the property,— the Court shall order the Commissioner of Police to arrange for the property to be returned to the applicant. Proceeds of Crime Act 1987 (Aust), s 42(3), (4) Sections 38A to 38E inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
4: Restraining orders
Applications for restraining orders
39: Application for restraining order
1: Where a person (in this section and sections 43 44 48 defendant
a: Has been convicted on indictment of a serious offence; or
b: Has been, or is about to be, charged with a serious offence,— the Solicitor-General may apply to the High Court for a restraining order under section 42
2: A restraining order may be sought and made in respect of—
a: Specified property of the defendant; or
b: All the property of the defendant (including property acquired after the making of the order); or
c: All the property of the defendant (including property acquired after the making of the order) other than specified property; or
d: Specified property of a person other than the defendant. Proceeds of Crime Act 1987 (Aust), s 43(1)
40: Notice of application
Subject to section 41
a: The applicant shall serve notice of the application on—
i: The owner of the property; and
ii: Any other person the applicant has reason to believe may have an interest in the property; and
iii: The Official Assignee, in any case where the applicant seeks an order of the kind referred to in section 42(1)(b)
b: The Court may, at any time before the final determination of the application, direct the applicant to serve notice of the application on a specified person or class of persons, in such manner and within such time as the Court thinks fit; and
c: The owner of the property and any other person who claims an interest in the property are entitled to appear and to adduce evidence at the hearing of the application. Proceeds of Crime Act 1987 (Aust), ss 45, 46
41: Ex parte
1: Notwithstanding section 40
2: Notwithstanding anything in section 65(1) subsection (3) subsection (1)
3: If, before a restraining order granted by virtue of subsection (1) subsection (2)
4: Where an application to which subsection (3)
5: Where an application to which subsection (3)
6: The provisions of this Act shall apply to a restraining order made by virtue of subsection (1)
a: Section 65(1) 65(3)(g) 66
b: Section 65(3)(c) (d) subsection (1) of this section section 41 of this Act
7: On the expiry of a restraining order made by virtue of subsection (1) section 47 Proceeds of Crime Act 1987 (Aust), s 45 Granting of restraining orders
42: Court may make restraining order
1: Where an application is made to the High Court for a restraining order against any property, the Court may, subject to sections 43 44
a: Direct that the property, or such part of the property as is specified in the order, is not to be disposed of or otherwise dealt with by any person except as provided in the order; and
b: If the Court is satisfied that it is desirable to do so, direct the Official Assignee to take custody and control of the property, or of such part of the property as is specified in the order.
2: A restraining order against a person's property may be made subject to such conditions as the Court thinks fit, which conditions may include, but are not limited to, conditions which make provision for meeting, out of the property included in the order, all or any of the following:
a: The reasonable living expenses of the person and the person's dependants, if any:
b: The person's reasonable business expenses:
c: The person's reasonable expenses in defending any criminal proceedings (including any proceedings under this Act):
d: Any specified debt incurred by the person in good faith:
e: Any other expense allowed by the Court.
3: In determining whether or not to make provision of the type described in subsection (2) Proceeds of Crime Act 1987 (Aust), s 43(2)-(4)
43: Grounds for making restraining order
1: Where an application under section 39
a: The property is tainted property in relation to the relevant serious offence; or
b: The defendant derived a benefit, directly or indirectly, from the commission of the offence.
2: Where an application under section 39
3: Where an application under section 39
a: The property is tainted property in relation to the relevant serious offence; or
b: The property is subject to the effective control of the defendant, and the defendant derived a benefit, directly or indirectly, from the commission of the offence.
4: In determining, for the purposes of subsection (3)(b) section 29(2)
5: Subject to subsections (1) to (3)
6: The Court shall not make a restraining order unless the application contains, or the applicant otherwise supplies to the Court, such information as the Court requires concerning the grounds on which the order is sought. Proceeds of Crime Act 1987 (Aust), s 44(5)-(9)
44: Restraining orders where defendant not charged with or convicted of offence
1: Where an application is made for a restraining order and the defendant has not been convicted of the offence to which the application relates, the Court shall not make a restraining order unless the Court is satisfied that there are reasonable grounds for believing that the defendant committed the offence.
2: Where an application is made for a restraining order and the defendant has not been charged with the offence to which the application relates, the Court shall not make a restraining order unless it is satisfied that the defendant will be charged with the offence or a related offence within 48 hours of the making of the order. Proceeds of Crime Act 1987 (Aust), s 44(3), (4)
45: Undertakings as to damages or costs
1: For the purposes of an application under section 39
a: The Solicitor-General may, on behalf of the Crown, give to the Court such undertakings with respect to the payment of damages or costs, or both, in relation to the making or operation of the restraining order as are required by the Court; and
b: The Court may decline to make a restraining order if the Crown fails to give to the Court such undertakings with respect to the payment of damages or costs, or both, as the Court considers appropriate.
2: Any money payable by the Crown in satisfaction of any undertaking given under subsection (1) Proceeds of Crime Act 1987 (Aust), s 44(10), (11)
46: Notice of restraining orders
Where a restraining order is made against a person's property, the applicant shall serve notice of the order on that person. Proceeds of Crime Act 1987 (Aust), s 47 Further orders
47: Further orders
1: Where the Court makes a restraining order against any property, the Court may, at the time it makes the order or at any later time, make such ancillary orders in relation to the property as the Court considers appropriate.
2: Without limiting the generality of subsection (1)
a: An order varying the property to which the restraining order relates:
b: An order varying any condition to which the restraining order is subject:
c: An order for the examination of—
i: Any person whose property is subject to the restraining order; or
ii: Any other person,— before the Court or the Registrar of the Court concerning the nature and location of any property to which the restraining order relates:
d: An order with respect to the carrying out of any undertaking given by the Crown under section 45
e: Where the restraining order directs the Official Assignee to take custody and control of property,—
i: An order regulating the manner in which the Official Assignee may exercise his or her powers or perform his or her duties under the restraining order:
ii: An order determining any question relating to the property, including any question relating to the liabilities of the owner of the property or the exercise of the powers, or the performance of the duties, of the Official Assignee:
iii: An order for the examination, before the Official Assignee, of any person whose property is subject to the restraining order, or any other person, concerning the nature and location of the property:
iv: An order directing the owner of the property to furnish to the Official Assignee, within the time specified in the order, a statement on oath setting out such particulars of the property of that person as the Court thinks fit.
3: An order under subsection (1)
a: The Solicitor-General; or
b: The person whose property is subject to the restraining order; or
c: Where the restraining order directs the Official Assignee to take custody and control of property, the Official Assignee; or
d: With the leave of the Court, any other person.
4: A person who makes an application under subsection (3)
5: No person shall be excused from answering any question, or furnishing any information, when required to do so pursuant to an order made pursuant to paragraph (c) (e)(iii) (e)(iv)
6: Every examination by the Official Assignee pursuant to an order made pursuant to subsection (2)(e)(iii) section 108 Crimes Act 1961 Proceeds of Crime Act 1987 (Aust), ss 48(1), (2), 58(1)
48: Application for exclusion of interest from restraining order
Where a person having an interest in property that is subject to a restraining order applies to the Court under section 47
a: Where the applicant is not the defendant, and the restraining order was made pursuant to section 43(3)
i: The interest is not tainted property; and
ii: Either—
A: The applicant's interest in the property is not subject to the effective control of the defendant; or
B: A pecuniary penalty order cannot be made against the defendant:
b: In any other case where the applicant is not the defendant, the Court is satisfied that the interest is not tainted property:
c: Where the applicant is the defendant, the Court is satisfied that—
i: The interest is not tainted property; and
ii: A pecuniary penalty order cannot be made against the defendant:
d: In any case, the Court is satisfied that it is in the public interest to do so, having regard to all the circumstances, including,—
i: Any hardship that is reasonably likely to be caused to any person if the interest remains subject to the restraining order:
ii: The gravity of the offence:
iii: The likelihood that the interest will be subject to a forfeiture order or be required to satisfy a pecuniary penalty order. Proceeds of Crime Act 1987 (Aust), s 48(3)
49: Admissibility of evidence
Where—
a: Any person is examined before the Court, or a Registrar of the Court, or the Official Assignee, pursuant to an order made pursuant to paragraph (c) (e)(iii)
b: Any person is required, pursuant to an order made pursuant to section 47(2)(e)(iv) no statement or disclosure made by the person in answer to a question put in the course of the examination (where paragraph (a) paragraph (b)
c: A proceeding for giving false evidence in the course of the examination or, as the case may require, for making any false statement in any statement so furnished; or
d: Proceedings on an application for a restraining order, a forfeiture order, or a pecuniary penalty order. Proceeds of Crime Act 1987 (Aust), s 48(6) Operation of restraining orders
50: Powers of Official Assignee
Where the Official Assignee is given a direction under section 42(1)(b)
a: Taking, or becoming a party to, any civil proceedings affecting the property; and
b: Ensuring that the property is insured; and
c: If the property consists, in whole or in part, of securities or investments, realising or otherwise dealing with the securities or investments; and
d: If the property consists, in whole or in part, of a business, doing anything that is necessary or convenient for carrying on the business. Proceeds of Crime Act 1987 (Aust), s 43(6)
51: Official Assignee to discharge pecuniary penalty order
1: Where—
a: A pecuniary penalty order is made against a person (in this subsection referred to as the defendant
b: Either—
i: At the time when the pecuniary penalty order is made, the Official Assignee has custody and control of property under a restraining order made, in relation to the offence or a related offence, against—
A: Property of the defendant; or
B: Property of another person in relation to which an order under section 29(3)
ii: A restraining order is subsequently made against—
A: Property of the defendant; or
B: Property of another person in relation to which an order under section 29(3) in relation to the offence, and that restraining order includes a direction that the Official Assignee take custody and control of the property,— the Court making the pecuniary penalty order or, as the case may be, the restraining order may include in that order a direction that the Official Assignee pay to the Crown, out of such of that property as the Court specifies, in accordance with this section, an amount equal to the amount payable under the pecuniary penalty order.
2: Subject to section 60 subsection (1)
a: If the property is money,—
i: Apply the money in payment of the costs recoverable by the Official Assignee under section 63
ii: Subject to subsection (4)
b: If the property is not money,—
i: Sell or otherwise dispose of the property; and
ii: Apply the proceeds of the sale or disposition in payment of the costs recoverable by the Official Assignee under section 63
iii: Subject to subsection (4)
3: Notwithstanding anything in subsection (2) paragraph (a)(i) (b)(ii)
4: Where the money or proceeds referred to in paragraph (a)(ii) (b)(iii) section 63
5: For the purposes of this section, expiry of the relevant appeal period
a: The end of the appeal period in relation to the making of the pecuniary penalty order; or
b: The end of the appeal period in relation to the person's conviction on which the order is based,— whichever is the later.
6: For the purposes of this section, appeal period
a: When the time for bringing an appeal against the decision of the Court expires, if no such appeal has been brought; or
b: If an appeal against the decision of the Court has been brought, when the appeal is finally determined or is withdrawn, whichever occurs first. Proceeds of Crime Act 1987 (Aust), s 49(1), (2), (6), (7), (9)-(11)
52: Further provisions relating to discharge of pecuniary penalty order
1: For the purposes of enabling the Official Assignee to comply with a direction by a Court under section 51(1)
2: The execution of the deed or instrument by the person so appointed has the same force and validity as if the deed or instrument had been executed by the person who owned or had the estate, interest, or right in the property. Proceeds of Crime Act 1987 (Aust), s 49(3), (4)
53: Payment to Crown discharges pecuniary penalty order
1: Where the Official Assignee, in accordance with a direction under section 51(1)
2: Where—
a: A pecuniary penalty order is made against a person in reliance on that person's conviction of a serious offence; and
b: A restraining order, in relation to that offence or a related offence, is or has been made against property of that person, or against property of another person in relation to which an order under section 29(3) any amount applied under paragraph (a)(i) (b)(ii) section 63 subsection (1) Proceeds of Crime Act 1987 (Aust), s 49(8)
54: Official Assignee to discharge forfeiture order
1: Where—
a: A Court makes a forfeiture order against any property; and
b: At the time when the forfeiture order is made, the Official Assignee has custody and control of that property under a restraining order,— the Minister may direct the Official Assignee—
c: To retain the property until the expiry of the relevant appeal period referred to in section 16
d: On the expiry of that relevant appeal period,—
i: If the property is money, to apply the money in payment of the costs recoverable by the Official Assignee under section 63
ii: If the property is not money,—
A: To sell or otherwise dispose of the property; and
B: To apply the proceeds of the sale or disposition in payment of the costs recoverable by the Official Assignee under section 63
e: To pay the remainder of the money or proceeds to the Crown.
2: Any direction given under subsection (1) sections 17 to 23
3: Nothing in this section limits the power of the Minister to give directions under section 16(4)
55: Charge on property subject to restraining order
1: Where—
a: A pecuniary penalty order is made against a person in reliance on the person's conviction of a serious offence; and
b: A restraining order, in relation to the offence or a related offence, is or has been made against—
i: Property of the defendant; or
ii: Property of another person in relation to which an order under section 29(3) then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Crown of the amount payable under the pecuniary penalty order.
2: Where a charge is created by subsection (1)
a: Upon the quashing of the conviction in reliance on which the pecuniary penalty order was made; or
b: Upon payment to the Crown of the amount payable under the pecuniary penalty order, where that payment is made in satisfaction of that order; or
c: Upon the discharge of the pecuniary penalty order or the restraining order by a Court hearing an appeal against the making of the order; or
d: Upon the person becoming a bankrupt; or
e: Upon the sale or disposition of the property,—
i: Pursuant to an order under section 51
ii: By the owner of the property with the consent of the Court that made the pecuniary penalty order; or
iii: If the Official Assignee was directed to take custody and control of the property, by the owner of the property with the consent of the Official Assignee; or
f: Upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge,— whichever occurs first.
3: A charge created by subsection (1)
a: Is subject to every encumbrance to which the property was subject immediately before the charge was created and that would, apart from this subsection, have priority over the charge; but
b: Has priority over all other encumbrances, except where—
i: By virtue of prior registration under the provisions of any enactment, another encumbrance is entitled to priority over the charge; and
ii: The person claiming priority by virtue of that prior registration proves that at the time when that person acquired, or became entitled to, the benefit of the encumbrance under which that person claims, that person had no notice of the charge; and
c: Subject to subsection (2) Proceeds of Crime Act 1987 (Aust), s 50(1)-(3)
56: Registration of charge created by restraining order
1: Where a charge is created by section 55
2: If the charge is registered under subsection (1) section 55(2)(f) Proceeds of Crime Act 1987 (Aust), s 50(4)
57: Registration of restraining orders
1: Where a restraining order applies to property of a particular kind, and the provisions of any New Zealand enactment provide for the registration of title to, or charges over, property of that kind, the authority responsible for administering those provisions shall, if requested to do so by the applicant for the restraining order, record on the register the particulars of the restraining order.
2: If the particulars are so recorded on the register, any person who subsequently deals with the property shall, for the purposes of section 58 Proceeds of Crime Act 1987 (Aust), s 51
58: Contravention of restraining orders
1: Every person commits an offence who, knowing that a restraining order has been made in respect of property, disposes or otherwise deals with the property in contravention of the order.
2: Every person who commits an offence against this section is liable on conviction on indictment,—
a: In the case of an individual, to imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000:
b: In the case of a body corporate, to a fine not exceeding $60,000. Proceeds of Crime Act 1987 (Aust), s 52
59: Disposition or dealing may be set aside
1: Where—
a: A restraining order is made in respect of property; and
b: The property is disposed of, or otherwise dealt with, in contravention of the order; and
c: The disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith,— the Solicitor-General may apply to the High Court for an order that the disposition or dealing be set aside.
2: On any application made under subsection (1)
a: Setting the disposition or dealing aside as from the day on which the disposition or dealing took place; or
b: Setting the disposition or dealing aside as from the day of the order, and declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order. Proceeds of Crime Act 1987 (Aust), s 52(2), (3)
60: Bankruptcy
1: Where, after the Official Assignee has been directed by an order under section 51(1) section 13
a: Shall refrain from taking action to sell or dispose of the property pursuant to that direction; and
b: Shall not pay the Crown any money pursuant to that direction,— until the petition has been withdrawn, or has been disposed of.
2: Where—
a: Property of a person is in the custody and control of the Official Assignee in accordance with a restraining order; and
b: The person becomes bankrupt,— the property shall cease to be in the custody and control of the Official Assignee under this Act and shall be deemed to be vested in the Assignee of the bankrupt's property under section 101
3: Notwithstanding anything in section 232(2) Proceeds of Crime Act 1987 (Aust), s 53 Section 60(1) amended 3 December 2007 section 445 Insolvency Act 2006 Section 60(2) amended 3 December 2007 section 445 Insolvency Act 2006 Section 60(3) amended 3 December 2007 section 445 Insolvency Act 2006
61: Official Assignee not liable for payment of rates, etc, on property subject to restraining order
The Official Assignee is not personally liable for the payment of any rates, land tax, or other statutory charge imposed by or under any enactment in respect of property in the custody and control of the Official Assignee pursuant to a restraining order—
a: Except where the rates, land tax, or statutory charge fall due on or after the date of the restraining order; and
b: Where paragraph (a) section Proceeds of Crime Act 1987 (Aust), s 54(3) Paragraph (b) amended 26 September 1992 Proceeds of Crime Amendment Act 1992 by substituting the word section subsection
62: Indemnity for Official Assignee
1: The Official Assignee, and every person to whom the Official Assignee delegates any of the Official Assignee's functions, duties, and powers under this Act, shall be indemnified by the Crown in respect of any liability relating to the exercise or performance, or purported exercise or performance, or omission to exercise or perform, any function, duty, or power conferred or imposed on the Official Assignee by or under this Act, unless it is shown that the exercise or performance, or purported exercise or performance, or omission to exercise or perform, the function, duty, or power was in bad faith.
2: Any money required for the purposes of this section shall be paid out of the Crown Bank Account without further appropriation than this section.
3: The indemnity conferred by subsection (1) 1989 No 11 63
63: Costs recoverable by Official Assignee
1: Where the Official Assignee—
a: Takes custody and control of property pursuant to a restraining order; and
b: Complies with—
i: Any direction given under section 51(1)
ii: Any direction given pursuant to section 54 the Official Assignee shall be entitled to recover, in accordance with section 51(2) 54(1)(d)
2: For the purposes of subsection (1)
a: Costs, charges, and expenses properly incurred or payable by or on behalf of the Official Assignee in connection with the exercise or performance, by the Official Assignee or any delegate of the Official Assignee, of functions, duties, or powers under this Act in respect of the property:
b: Proper remuneration for work done by any person (being the Official Assignee or any delegate of the Official Assignee or any other member of the staff of the Official Assignee) in connection with the exercise or performance, by the Official Assignee or any delegate of the Official Assignee, of functions, duties, or powers under this Act in respect of the property. Proceeds of Crime Act 1987 (Aust), s 55 Subsection (2)(b) substituted 26 September 1992 Proceeds of Crime Amendment Act 1992 Revocation and termination of restraining orders
64: Revocation of restraining order
1: Where the High Court has made a restraining order against a person's property, the Court may, on application by that person, revoke the order if—
a: The person gives to the Court satisfactory undertakings concerning the person's property; or
b: Where the order was made in respect of that person's conviction of a serious offence or the alleged commission by that person of a serious offence, the person gives to the Court satisfactory security for the payment of any pecuniary penalty that may be imposed on the person under this Act in respect of the offence or a related serious offence.
2: A person who makes an application under subsection (1) Proceeds of Crime Act 1987 (Aust) ss 56, 58(2)
65: Duration and termination of restraining order
1: Subject to subsections (2) (3) 66 section 47
2: Where a restraining order is made in reliance on the proposed charging of a person with a serious offence, the order shall cease to be in force at the end of the period of 48 hours after the making of the order if the person has not been charged with the offence, or a related serious offence, before the period expires.
3: Where a restraining order is made—
a: In reliance on a person's conviction of a serious offence or the charging of a person with such an offence; or
b: In reliance on the proposed charging of a person with a serious offence and the person is, within the period of 48 hours after the making of that order, charged with the offence or a related serious offence,— the following provisions shall apply:
c: If, before the order would otherwise expire under subsection (1)
d: If, before the order would otherwise expire under subsection (1)
e: If a Court makes a confiscation order in reliance on the person's conviction of the offence or a related serious offence, and the confiscation order is satisfied or otherwise ceases to be in force, the restraining order shall cease to be in force when that order is satisfied or otherwise ceases to be in force, unless, at that time,—
i: An application for another confiscation order in respect of the person's conviction of the offence or a related serious offence awaits determination; or
ii: Another confiscation order in respect of the person's conviction of the offence or a related serious offence is in force:
f: If a Court refuses an application for a confiscation order made in reliance on the person's conviction of the offence or a related serious offence, the restraining order ceases to be in force when the Court refuses the application unless, at that time,—
i: An application for another confiscation order in respect of the person's conviction of the offence or a related serious offence awaits determination; or
ii: Another confiscation order in respect of the person's conviction of the offence or a related serious offence is in force:
g: If, before the restraining order would otherwise expire under subsection (1) section 66 Proceeds of Crime Act 1987 (Aust), s 57(1), (2)
66: Extension of operation of restraining order
1: Where the High Court has made a restraining order against a person's property, the Solicitor-General may, before that order expires under section 65(1) 65(3)(g)
2: Where an application is made under subsection (1)
a: That a forfeiture order will still be made in respect of the property or part of the property; or
b: That a pecuniary penalty order will still be made against the person in respect of whose conviction or alleged commission of a serious offence the restraining order was made.
3: On making any order under subsection (2)
4: An applicant for an order under subsection (2) Proceeds of Crime Act 1987 (Aust), s 57(3), (4) Foreign restraining orders
66A: Interim restraining order in respect of foreign serious offence
1: Where the Solicitor-General is authorised, under section 60 Mutual Assistance Act
2: This Part of this Act (other than sections 43(1) 43(2) 44(2) 48 51 to 56 65 66 subsection (1)
a: A reference in this Part of this Act to a serious offence shall be read as a reference to a foreign serious offence:
b: A reference in this Part of this Act to a person being charged with a serious offence shall be read as a reference to the commencement in a foreign country of criminal proceedings alleging the commission of a foreign serious offence:
c: The reference in section 42(2)(c)
3: Subject to subsections (4) (5)
4: Where the High Court makes a restraining order in respect of a foreign serious offence, the Court may, on application by the Solicitor-General before the end of the period referred to in subsection (3)
5: Where—
a: A restraining order against property is made in respect of a foreign serious offence; and
b: Before the end of the period referred to in subsection (3) subsection (4) Mutual Assistance Act the first-mentioned restraining order shall cease to be in force when the foreign restraining order is registered.
6: This section applies with any necessary modifications if a person or body is authorised, under section 112 International Crimes and International Criminal Court Act 2000 Proceeds of Crime Act 1987 (Aust), s 59 Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Subsection (6) inserted 1 July 2002 187(3) International Crimes and International Criminal Court Act 2000 See clause 2(f) International Crimes and International Criminal Court Act Commencement Order 2002
66B: Registered foreign restraining orders
1: Where a foreign restraining order is registered in New Zealand in accordance with section 56 or a restraining order is registered in accordance with section 112(2) International Crimes and International Criminal Court Act 2000 sections 47 55 64 65 66
a: A reference in this Part of this Act to a restraining order directing the Official Assignee to take custody and control of property shall be read as a reference to an order under section 66C
b: A reference in this Part of this Act to an order under section 51(1) section 66E
c: The reference in section 63 section 66C
2: A foreign restraining order registered in New Zealand under the Mutual Assistance Act Proceeds of Crime Act 1987 (Aust), ss 60, 65 Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Subsection (1) amended 1 July 2002 187(4) International Crimes and International Criminal Court Act 2000 or a restraining order is registered in accordance with section 112(2) of the International Crimes and International Criminal Court Act 2000, section 56 of the Mutual Assistance Act, See clause 2(f) International Crimes and International Criminal Court Act Commencement Order 2002
66C: Management of property under registered foreign restraining order
1: Where a foreign restraining order against property is registered in the High Court under the Mutual Assistance Act
2: Where an application is made for an order under subsection (1)
a: The Solicitor-General shall give written notice of the application to—
i: The owner of the property; and
ii: Any other person that the Solicitor-General has reason to believe may have an interest in the property; and
iii: The Official Assignee; and
b: The Court may, at any time before the final determination of the application, direct the Solicitor-General to give or publish notice of the application to a specified person or class of persons, in such manner and within such time as the Court thinks fit; and
c: The owner of the property and any other person who claims an interest in the property are entitled to appear and to adduce evidence at the hearing of the application.
3: Where an order is made under subsection (1)
4: Where an order is made under subsection (1)
a: An order regulating the manner in which the Official Assignee may exercise his or her powers or perform his or her duties pursuant to the order under subsection (1)
b: An order determining any question relating to the property, including any question relating to—
i: The liabilities of the owner of the property; or
ii: The exercise of the powers, or the performance of the duties, of the Official Assignee pursuant to the order under subsection (1)
c: An order for the examination, before the Court, or the Registrar of the Court, or the Official Assignee, of any person whose property is subject to the order under subsection (1)
d: An order directing the owner of the property to furnish to the Official Assignee, within the time specified in the order, a statement on oath, setting out such particulars of the property of that person as the Court thinks fit.
5: Where the Official Assignee is given a direction under subsection (1)
a: Taking, or becoming a party to, any civil proceedings affecting the property; and
b: Ensuring that the property is insured; and
c: If the property consists, in whole or in part, of securities or investments, realising or otherwise dealing with the securities or investments; and
d: If the property consists, in whole or in part, of a business, doing anything that is necessary or convenient for carrying on the business.
6: Where the High Court makes an order under paragraph (c) (d) subsections (5) (6) section 49
a: In the case of an order made under subsection (4)(c) section 47(2)(e)(iii)
b: In the case of an order made under subsection (4)(d) section 47(2)(e)(iv) Proceeds of Crime Act 1987 (Aust), s 61 Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
66D: Undertakings as to damages or costs in relation to foreign restraining order
1: Where—
a: A foreign restraining order against property is registered in the High Court in New Zealand under the Mutual Assistance Act
b: The High Court makes an order under section 66C the Court may, on application by a person claiming an interest in the property, make an order requiring the Solicitor-General, on behalf of the Crown, to give or carry out an undertaking with respect to the payment of damages or costs, or both, in relation to the registration, making, or operation of the order.
2: Any money payable by the Crown in satisfaction of any undertaking given under subsection (1) Proceeds of Crime Act 1987 (Aust), s 62 Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
66E: Official Assignee to discharge foreign pecuniary penalty order
1: Where—
a: A foreign restraining order made against property of a person in reliance on the person's conviction, or alleged commission, of a foreign serious offence is registered in the High Court in New Zealand under the Mutual Assistance Act
b: A foreign pecuniary penalty order made in reliance on the person's conviction of the offence or a related foreign serious offence has been or is registered in the High Court in New Zealand under the Mutual Assistance Act
c: An order has been made or is made under section 66C the High Court may, by order, direct the Official Assignee to pay to the Crown out of that property, in accordance with this section, an amount equal to the amount payable under that pecuniary penalty order.
2: For the purposes of enabling the Official Assignee to comply with an order under subsection (1)
a: Direct the Official Assignee to sell or otherwise dispose of such of the property under the Official Assignee's control as the Court specifies; and
b: Appoint an officer of the Court or any other person to execute any deed or instrument in the name of a person who owns or has an estate, interest, or right in the property and to do anything necessary to give validity and operation to the deed or instrument.
3: The execution of the deed or instrument by the person so appointed has the same force and validity as if the deed or instrument had been executed by the person who owned or had the estate, interest, or right in the property.
4: Subject to section 60 subsection (1)
a: If the property is money,—
i: Apply the money in payment of the costs recoverable by the Official Assignee under section 63 section 66C
ii: Subject to subsection (5)
b: If the property is not money,—
i: Sell or otherwise dispose of the property; and
ii: Apply the proceeds of the sale or disposition in payment of the costs recoverable by the Official Assignee under section 63 section 66C
iii: Subject to subsection (5)
5: Notwithstanding anything in subsection (4) paragraph (a)(i) (b)(ii)
6: Where the money or proceeds referred to in paragraph (a)(ii) (b)(iii) section 63 section 66C Proceeds of Crime Act 1987 (Aust), s 63(1)-(5) Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
66F: Payment to Crown discharges foreign pecuniary penalty order
1: Where the Official Assignee, in accordance with a direction under section 66E(1)
2: Where—
a: A foreign restraining order made against property of a person in reliance on the person's conviction, or alleged commission, of a foreign serious offence is registered in the High Court in New Zealand under the Mutual Assistance Act
b: A foreign pecuniary penalty order made in reliance on the person's conviction of the offence or a related foreign serious offence has been or is registered in the High Court in New Zealand under the Mutual Assistance Act
c: An order has been made or is made under section 66C any amount applied under paragraph (a)(i) (b)(ii) section 63 section 66C subsection (1) Proceeds of Crime Act 1987 (Aust), s 63(6) Section 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
66G: Charge on property subject to foreign restraining order
1: Where—
a: A foreign restraining order made against property of a person in reliance on the person's conviction, or alleged commission, of a foreign serious offence is registered in the High Court in New Zealand under the Mutual Assistance Act
b: A foreign pecuniary penalty order made in reliance on the person's conviction of the offence or a related foreign serious offence has been or is registered in the High Court in New Zealand under the Mutual Assistance Act then, upon the registration of the foreign restraining order or the foreign pecuniary penalty order, whichever last occurs, there is created, by force of this section, a charge on the property to secure the payment to the Crown of the amount payable under the foreign pecuniary penalty order.
2: Where a charge is created by subsection (1)
a: Upon payment to the Crown of the amount payable under the foreign pecuniary penalty order, where that payment is made in satisfaction of that order; or
b: Upon the person becoming bankrupt; or
c: Upon the sale or disposition of the property,—
i: Pursuant to an order under section 66E
ii: By the owner of the property with the consent of the High Court; or
iii: If the Official Assignee was directed to take custody and control of the property pursuant to an order under section 66C
d: Upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge; or
e: Upon the cancellation of the registration of either the foreign pecuniary penalty order or the foreign restraining order, in accordance with the Mutual Assistance Act whichever occurs first.
3: A charge created by subsection (1)
a: Is subject to every encumbrance to which the property was subject immediately before the charge was created and that would, apart from this subsection, have priority over the charge; but
b: Has priority over all other encumbrances, except where—
i: By virtue of prior registration under the provisions of any enactment, another encumbrance is entitled to priority over the charge; and
ii: The person claiming priority by virtue of that prior registration proves that at the time when that person acquired, or became entitled to, the benefit of the encumbrance under which that person claims, that person had no notice of the charge; and
c: Subject to subsection (2) Proceeds of Crime Act 1987 (Aust), s 64(1)-(3) Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
66H: Registration of charge created by foreign restraining order
1: Where a charge is created by section 66G
2: If the charge is registered under subsection (1) section 66G(2)(d) Proceeds of Crime Act 1987 (Aust), s 64(4) Sections 66A to 66H inserted 1 April 1993 Proceeds of Crime Amendment Act 1992
5: Information gathering powers
Interpretation
67: Interpretation
In this Part of this Act, unless the context otherwise requires,— Bankers' books Property-tracking document
a: A document relevant to identifying, locating, or quantifying property of a person who committed the offence; or
b: A document relevant to identifying, locating, or quantifying tainted property in relation to the offence. Production orders
68: Application for production order
1: A commissioned officer of police may apply to a Judge of the High Court for a production order under section 69
a: one of the following situations exists:
i: a person has been convicted of a drug-dealing offence:
ii: the officer has reasonable grounds for believing that a person has committed a drug-dealing offence:
iii: a person has been convicted of a serious offence, and there are reasonable grounds to suspect that it is an offence to which subsection (1A)
iv: the officer has reasonable grounds for believing that a person has committed a serious offence to which subsection (1A)
b: the officer has reasonable grounds for believing that a person has possession or control of one or more property-tracking documents in relation to the offence.
1A: This section applies to a serious offence if it is transnational in nature (as defined in articles 3(2) and 18(1) of the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000) and involves an organised criminal group (as defined in article 2(a) of that convention).
2: Every application under this section shall be made in writing and on oath, and shall contain the following particulars:
a: The grounds on which the application is made:
b: A description of the document or documents production of which is sought:
c: A description of the property or type of property to which the document or documents are believed to relate:
d: The reasons why it is considered necessary to obtain a production order in relation to the identification, location, or quantification of that property. Proceeds of Crime Act 1987 (Aust), s 66(1) Subsection (1) substituted 18 June 2002 3 Proceeds of Crime Amendment Act 2002 Subsection (1A) inserted 18 June 2002 3 Proceeds of Crime Amendment Act 2002
69: Court may make production order
1: Where an application is made under section 68 subsection (4) sections 73 74
a: Produce to a Police employee section 68(1)(b)
b: Make available to a Police employee if the Judge is satisfied that there are reasonable grounds for making the order.
2: A Judge shall not make an order under subsection (1)
3: Where, on an application under section 68
a: The person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
b: Property specified in the application is subject to the effective control of that person,— the Judge may, having regard to the matters referred to in section 29(2)
4: An order under subsection (1)(a) Proceeds of Crime Act 1987 (Aust), s 66(2)-(6) Section 69(1)(a) amended 1 October 2008 section 130(1) Policing Act 2008 Section 69(1)(b) amended 1 October 2008 section 130(1) Policing Act 2008 Subsection (1)(a) amended 26 September 1992 Proceeds of Crime Amendment Act 1992 by substituting the expression section 68(1)(b) section 69(1)(b)
70: Time and place of production
A production order requiring a person to produce or make available any document to a Police employee
a: Shall specify when the document is to be produced or made available:
b: May specify—
i: The place where the document is to be produced or made available:
ii: The Police employee Proceeds of Crime Act 1987 (Aust), s 66(7), (8) Section 70 amended 1 October 2008 section 130(1) Policing Act 2008 Section 70(b)(ii) amended 1 October 2008 section 130(1) Policing Act 2008
71: Powers and duties of
Police employees
1: A Police employee section 69
a: Inspect the document:
b: Take extracts from the document:
c: Make copies of the document:
d: In the case of an order under subsection (1)(a)
2: Where a Police employee Police employee
a: Give the person a copy of the document certified by the Police employee
b: Permit the person to inspect, take extracts from, and make copies of, the document. Proceeds of Crime Act 1987 (Aust), s 66(9)-(11) Section 71 heading amended 1 October 2008 section 130(1) Policing Act 2008 Section 71(1) amended 1 October 2008 section 130(1) Policing Act 2008 Section 71(2) amended 1 October 2008 section 130(1) Policing Act 2008 Section 71(2)(a) amended 1 October 2008 section 130(1) Policing Act 2008
72: Production order to operate notwithstanding any other enactment or rule of law
1: Subject to sections 73 74 section 69 section 69
2: Subject to sections 73 74
a: On the ground that the production of that document could or would tend to incriminate that person or subject that person to any penalty or forfeiture; or
b: On the ground of any other privilege that could otherwise be claimed by that person in relation to the production of the document in any proceedings in a Court.
3: Where a person produces or makes available a document pursuant to a production order, neither the production or making available of the document, nor any information, document, or thing obtained as a consequence of the production or making available of the document, is admissible against that person in any criminal proceedings except for an offence against section 76
4: For the purposes of subsection (3) Proceeds of Crime Act 1987 (Aust), s 66(12)-(14)
73: Production order not to override certain enactments
Nothing in section 69 72
a: Sections 82 to 88 Tax Administration Act 1994
b: Section 37 Statistics Act 1975
c: Section 105 Reserve Bank of New Zealand Act 1989 Paragraph (a) substituted 1 April 1995 Income Tax Act 1994
74: Legal professional privilege
1: Nothing in section 69 72
2: For the purposes of this section, a communication is a privileged communication only if—
a: It is a confidential communication, whether oral or written, passing between—
i: A legal practitioner in his or her professional capacity and another legal practitioner in such capacity; or
ii: A legal practitioner in his or her professional capacity and his or her client,— whether made directly or indirectly through an agent of either; and
b: It is made or brought into existence for the purpose of obtaining or giving legal advice or assistance; and
c: It is not made or brought into existence for the purpose of committing or furthering the commission of some illegal or wrongful act.
3: Where the information or document consists wholly of payments, income, expenditure, or financial transactions of a specified person (whether a legal practitioner, his or her client, or any other person), it shall not be a privileged communication if it is contained in, or comprises the whole or part of, any book, account, statement, or other record prepared or kept by the legal practitioner in connection with a trust account of the legal practitioner within the meaning of section 6
4: Where any person refuses to disclose any information or document on the ground that it is a privileged communication under this section, the Commissioner of Police or that person may apply to a Judge of the High Court for an order determining whether or not the claim of privilege is valid; and, for the purposes of determining any such application, the Judge may require the information or document to be produced to him or her.
5: For the purposes of this section, the term legal practitioner Lawyers and Conveyancers Act 2006 1990 No 51 24 Section 74(3) amended 1 August 2008 section 348 Lawyers and Conveyancers Act 2006 Section 74(5) substituted 1 August 2008 section 348 Lawyers and Conveyancers Act 2006
75: Variation of production orders
1: Where a Judge of the High Court makes an order under section 69(1)(a)
2: Where, on hearing any application made under subsection (1) section 69(1)(b) Proceeds of Crime Act 1987 (Aust), s 67
76: Failure to comply with production order
1: Every person commits an offence against this section who, being a person against whom a production order is made,—
a: Fails, without reasonable excuse, to comply with the order; or
b: In purported compliance with the order, produces or makes available to a member of the Police a document which the person knows is false or misleading in a material particular, where that person fails to indicate to the member of the Police the respect in which the document is false or misleading.
2: Every person who commits an offence against this section is liable on summary conviction,—
a: In the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $5,000:
b: In the case of a body corporate, to a fine not exceeding $20,000. Proceeds of Crime Act 1987 (Aust), s 68
76A: Production orders in relation to foreign serious offences
1: Where a commissioned officer of the Police is authorised, under section 61 Mutual Assistance Act serious sections 68 to 76
2: Where a member of the Police takes possession of a document pursuant to a production order made in respect of a foreign serious offence, the document may be retained for a period not exceeding 1 month pending a written direction from the Attorney-General as to the manner in which it is to be dealt with, and, if any such direction is given, shall be dealt with in accordance with the direction.
3: This section applies with any necessary modifications if a person or body is authorised, under section 112 International Crimes and International Criminal Court Act 2000 Proceeds of Crime Act 1987 (Aust), s 69 Section 76A inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Subsection (1) amended 18 June 2002 4 Proceeds of Crime Amendment Act 2002 by substituting the word serious drug-dealing Subsection (3) inserted 1 July 2002 187(5) International Crimes and International Criminal Court Act 2000 See clause 2(f) International Crimes and International Criminal Court Act Commencement Order 2002 Monitoring orders
77: Monitoring orders
1: A Judge of the High Court may, on the application of a commissioned officer of the Police, make an order directing a financial institution to supply to the Commissioner of Police information obtained by the institution about transactions conducted through an account held by a particular person with the institution.
2: A Judge may make a monitoring order only if the Judge is satisfied that there are reasonable grounds for believing that the person in respect of whom the order is sought—
a: Has committed, or is about to commit, a drug-dealing offence; or
b: Has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a drug-dealing offence.
3: Every monitoring order shall specify—
a: The name or names in which the account is believed to be held; and
b: The class of information that the institution is required to supply; and
c: The manner in which the information is to be supplied; and
d: The period for which the order is to be in force.
4: A monitoring order shall apply in relation to transactions conducted during the period specified in the order (being a period commencing not earlier than the day on which notice of the order is given to the financial institution and ending not later than 3 months after the day of the order).
5: A reference in this section to a transaction conducted through an account includes a transaction through the facility of a safety deposit box. Proceeds of Crime Act 1987 (Aust), s 73(1)-(6), (8)
78: Failure to comply with monitoring order
Every financial institution commits an offence and is liable on summary conviction to a fine not exceeding $20,000 if, where that financial institution has been given notice of a monitoring order, that financial institution—
a: Fails, without reasonable excuse, to comply with the order; or
b: Knowingly supplies information that is false or misleading in purported compliance with the order. Proceeds of Crime Act 1987 (Aust) s 73(7)
79: Compliance with monitoring order not actionable
1: No proceedings, civil or criminal, shall lie against any financial institution or any other person by reason of that financial institution's or that person's compliance with a monitoring order.
2: Nothing in subsection (1) section 78
80: Monitoring order not to be disclosed
1: A financial institution that is, or has been, subject to a monitoring order shall not disclose the existence or the operation of the order to any person except—
a: The Commissioner of Police or a member of the Police who is authorised by the Commissioner to receive the information; or
b: An officer or agent of the institution, for the purpose of ensuring compliance with the order; or
c: A barrister or solicitor, for the purpose of obtaining legal advice or representation in relation to the order.
2: No person referred to in paragraph (a)
3: No person referred to in paragraph (b)
4: No person referred to in paragraph (c)
5: Nothing in subsections (1) to (4) Proceeds of Crime Act 1987 (Aust), s 74(1)-(4)
81: Offence to disclose existence or operation of monitoring order
Every person who knowingly contravenes any of subsections (1) to (4)
a: In the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $5,000:
b: In the case of a body corporate, to a fine not exceeding $20,000.
81A: Monitoring orders in relation to foreign offences
1: Where a commissioned officer of the Police is authorised, under section 62 Mutual Assistance Act sections 77 to 81
2: Where information is supplied to the Commissioner of Police pursuant to a monitoring order made in relation to a foreign drug-dealing offence, the Commissioner shall, as soon as practicable after receiving the information, pass the information on to the Attorney-General.
3: This section applies with any necessary modifications if a member of the police is authorised, under section 112 International Crimes and International Criminal Court Act 2000 Proceeds of Crime Act 1987 (Aust), s 75 Section 81A inserted 1 April 1993 Proceeds of Crime Amendment Act 1992 Subsection (3) inserted 1 July 2002 187(6) International Crimes and International Criminal Court Act 2000 See clause 2(f) International Crimes and International Criminal Court Act Commencement Order 2002
6: Miscellaneous provisions
Appeals
82: Appeals
1: In this section, relevant conviction section 29(3)
2: A person who has an interest in property against which a forfeiture order is made may appeal against that order as if the order were a sentence imposed on the person in respect of the relevant conviction.
3: A person against whom a pecuniary penalty order is made may appeal against that order as if the order were a sentence imposed on the person in respect of the relevant conviction.
4: Where a Court makes a pecuniary penalty order and makes an order under section 29(3) section 29(3)
5: The Solicitor-General may appeal against a forfeiture order, a pecuniary penalty order, or an order under section 29(3)
6: Where an application is made to a Court for an order under section 18
a: In the case of an appeal by the applicant, on the applicant in respect of the conviction in respect of which a forfeiture order is sought or has been made:
b: In the case of an appeal by the Solicitor-General, in respect of the conviction in respect of which a forfeiture order is sought or has been made. Proceeds of Crime Act 1987 (Aust), s 100
83: Procedure on appeal
1: An appeal under section 82 Part 13 Crimes Act 1961 section 383
2: On any appeal under section 82 Miscellaneous provisions
84: Dealings with forfeited property
1: Every person commits an offence against this section who, knowing that a forfeiture order has been made in respect of any property (being property title to which is passed by registration on a register maintained pursuant to any New Zealand enactment), and knowing that the forfeiture order remains in force, disposes of or otherwise deals with the property before the Crown's interest in the property has been registered in the manner required by law.
2: Every person who commits an offence against this section is liable on conviction on indictment,—
a: In the case of an individual, to imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000:
b: In the case of a body corporate, to a fine not exceeding $60,000. Proceeds of Crime Act 1987 (Aust), s 97
85: Standard of proof
Subject to section 13 Proceeds of Crime Act 1987 (Aust), s 99
86: Delegation by Official Assignee
1: The Official Assignee may from time to time delegate to any person or persons (being the Deputy Official Assignee for New Zealand or any Official Assignee or Deputy Assignee appointed under the State Sector Act 1988
2: Every delegation under this section shall be in writing.
3: No delegation under this section (other than a delegation to the Deputy Official Assignee) shall include the power to delegate under this section.
4: The power of the Official Assignee to delegate under this section does not limit any power of delegation conferred on the Official Assignee by any other Act.
5: Subject to any general or special directions given or conditions imposed by the Official Assignee, a person to whom any functions, duties, or powers are delegated under this section may exercise or perform any functions, duties, or powers so delegated to that person in the same manner and with the same effect as if they had been conferred or imposed on that person directly by this section and not by delegation.
6: Every person purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.
7: Any delegation under this section may be made—
a: Subject to such restrictions and conditions as the Official Assignee thinks fit:
b: Either generally or in relation to any particular case or class of cases.
8: No delegation under this section shall affect or prevent the exercise or performance of any function, duty, or power by the Official Assignee, nor shall any such delegation affect the responsibility of the Official Assignee for the actions of any person acting under the delegation.
9: Any person purporting to exercise or perform any function, duty, or power of the Official Assignee by virtue of a delegation under this section shall, when required to do so, produce evidence of that person's authority to exercise or perform the function, duty, or power.
87: Revocation of delegations
1: Every delegation under section 86
2: Any such delegation, until it is revoked, shall continue in force according to its tenor, even though the Official Assignee by whom it was made may have ceased to hold office, and shall continue to have effect as if made by the successor in office of the Official Assignee.
88: Costs
Where—
a: A person brings or appears in proceedings under this Act in order—
i: To prevent a forfeiture order or restraining order being made against property of the person; or
ii: To have property of the person excluded from a forfeiture order or restraining order; and
b: The person is successful in the proceedings; and
c: The Court is satisfied that the person was not involved in the commission of the offence in respect of which the order was sought or made,— the Court may order the Crown to pay all the costs incurred by the person in connection with the proceedings or such part of those costs as the Court thinks fit. Proceeds of Crime Act 1987 (Aust), s 101
89: Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: Prescribing the forms of applications, notices, and other documents for the purposes of this Act, and requiring the use of such forms:
b: Prescribing the procedure for the service of notices and other documents for the purposes of this Act, and providing for service to be dispensed with in such circumstances as are specified in the regulations:
c: Prescribing or providing for the costs recoverable by the Official Assignee under section 63
d: Providing for such other matters as are contemplated by or are necessary for giving full effect to this Act and for its due administration.
90: Rules of procedure
The Governor-General may from time to time, by Order in Council, make rules regulating the practice and procedure of Courts in proceedings under this Act.
91: Operation of other laws not affected
Nothing in this Act limits or restricts the operation of any other enactment providing for the forfeiture of property or the imposition of a pecuniary penalty.
92: Summary Proceedings Act 1957 Part 2 Summary Proceedings Act 1957 Post Office Act 1959 section 237(2) of that Act The Proceeds of Crime Act 1991 58 Contravention of restraining orders 84 Dealings with forfeited property.